State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A17-0406

State of Minnesota,
Respondent,

vs.

Brandon Joseph Rossbach,
Appellant.

Filed April 9, 2018
Affirmed in part, reversed in part, and remanded
Peterson, Judge

Beltrami County District Court
File No. 04-CR-15-3928

Lori Swanson, Attorney General, Michael Everson, Assistant Attorney General, St. Paul,
Minnesota; and

David L. Hanson, Beltrami County Attorney, Bemidji, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Benjamin J. Butler, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Peterson, Presiding Judge; Worke, Judge; and Ross,
Judge.
U N P U B L I S H E D O P I N I O N
PETERSON, Judge
In this appeal from a conviction of aiding an offender, appellant argues that the
district court (1) erred by failing to instruct the jury to identify the specific crime that he
aided; (2) violated his Sixth Amendment right to a jury trial by finding that he aided a

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second-degree murder and setting the statutory maximum sentence accordingly; and
(3) erred by ranking the offense at severity -level nine. We affirm in part, reverse in part,
and remand.
FACTS
On October 20, 2015, Marchello Cimmarusti caused his girlfriend’s death when he
physically assaulted her during an argument. After hiding the victim’s body in the
basement of his home for several hours, Cimmarusti contacted his friend, Christopher
Davis, via a Facebook application. Cimmarusti t old Davis that the victim was dead and
asked him for help with the situation. Davis and a friend, Marciano Guerra, drove from St.
Paul to Cimmarusti’s residence in Bemidji, arriving there at about 11:30 p.m. Davis went
into the house and was inside for about ten minutes.
Before arriving at Cimmarusti’s, Davis made several telephone calls to a number
that belonged to appellant Brandon Rossbach’s girlfriend, A.N. At 11:21 p.m., Rossbach
sent Cimmarusti a Facebook message in which he told Cimmarusti to call him and provided
A.N.’s phone number. At 11:30 p.m., Davis’s phone was used to run a search for a resort
north of Bemidji where Rossbach was living in a cabin with A.N. A.N.’s cousin, C.S.J.,
who was spending the night with Rossbach and A.N. on October 20, saw Davis come to
the cabin late that night and leave with Rossbach a short time later.
Davis and Rossbach got into the car with Guerra, and the three went to a nearby
Wal-Mart store.1 Initially, Davis went into the store alone, but after a minute, he returned

1 Guerra was unable to identify Rossbach at trial; he testified that it was very dark outside,
and he could not see who had joined them.

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to the car, and he and Rossbach went into the store together. They bought six packages of
Styrofoam cups, two packages of Styrofoam plates, and two packages of Styrofoam bowls.
Davis, Rossbach, and Guerra went to Cimmarusti’s house, where t hey arrived at
about 1:00 a.m., and Davis and Rossbach went inside. Rossbach told Cimmarusti to stop
drinking and sit down. He then asked, “Do you want your kids to have no parents or one
parent?” The three men agreed that they would move the body to an other location, bury
it, and not report the crime. Cimmarusti knew that Rossbach had a close relationship with
the victim’s family, so he was surprised that Rossbach did not say that they would go to
the police.
Davis and Cimmarusti brought the body up from the basement and placed it in
Cimmarusti’s SUV. The men also put the Stryrofoam products and a can of fuel from
Davis’s car and a shovel from Cimmarusti’s garage into the SUV. Davis, Rossbach, and
Cimmarusti left in the SUV with the victim’s body, and Guerra stayed at the house with
Cimmarusti’s children, who were asleep.
Davis directed Cimmarusti to a location about 20 minutes away that was familiar to
Rossbach. They pulled off the road and drove down a steep, narrow trail. Cimmarusti and
Davis took turns digging a hole, which took them about 30 minutes. Davis carried the body
from the SUV and put it in the hole. The Styrofoam products were placed on the body,
which was wrapped in a blanket, and the fuel was used to ignite the body. Davis te nded
the fire, Cimmarusti paced between the SUV and the burn site, and Rossbach stood nearby.
After an hour or two, a decision was made to put out the fire, Davis extinguished the fire
by shoveling dirt on it, and branches and shrubs were pulled over the hole to conceal it.

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The three men then went to Rossbach’s cabin to drop him off. During the drive,
Davis and Cimmarusti discussed what Cimmarusti would tell investigators when
questioned about the victim’s disappearance, and Rossbach stated that he wou ld give
Cimmarusti Diazepam pills so that he would be relaxed when talking to investigators.
When they got to the cabin, Davis went inside with Rossbach and returned to the SUV with
the Diazepam pills. Davis and Cimmarusti returned to Cimmarusti’s house.
At about 11:00 a.m. on October 21, Cimmarusti called 911 to report that the victim
was parked outside of his house in violation of a no -contact order. This was the first of
many things that Cimmarusti did to try to make it appear that the victim was ali ve. The
victim’s family became increasingly concerned over the next few days when they were not
able to locate or contact her.
Bemidji Police Officer Bidal Duran went to Cimmarusti’s residence and spoke
with Cimmarusti in response to the October 21 911 call. Duran determined that there had
been no violation of the no -contact order because there had been no contact between the
victim and Cimmarusti and, according to Cimmarusti, the victim had been on the road.
On October 24, Duran returned to Cimmaru sti’s house and spoke to him after the
victim’s family contacted the police about her disappearance. Duran noted that Cimmarusti
appeared nervous. Cimmarusti stated that he had not spoken to the victim in some days
and that it was uncharacteristic for he r to be out of contact. With Cimmarusti’s consent,
Duran searched the house. In the basement, Duran found dry white paint spread throughout
the basement floor with some footprints in it. Cimmarusti claimed that the children had
spilled the paint.

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In an October 26 Facebook exchange between Rossbach and Davis, Davis stated,
“lol I almost got burned alive last night because I . . . fell asleep with a candle lit. I woke
up to the bedside table on fire hahaha . . . .” Rossbach responded, “lmao poor baby lo l.”
Davis stated, “I was like karma a b--ch hahaha.” Rossbach replied, “And quick too lol.”
On October 26, Senior Special Agent Don Newhouse of the Minnesota Bureau of
Criminal Apprehension began an investigation into the victim’s disappearance. Afte r
learning from Cimmarusti that Davis had been at Cimmarusti’s house about the time of the
victim’s disappearance, Newhouse obtained a search warrant and seized Davis’s cell
phone. An examination of the phone showed that an Internet search for the resort where
Rossbach was staying had occurred at 11:30 p.m. on October 20.
Newhouse and Bemidji Police Detective Michael Solheim went to the resort and
spoke with Rossbach. Rossbach admitted knowing Cimmarusti and Davis but denied
knowing anything about the vi ctim’s disappearance. Rossbach stated that it was not
uncommon for the victim and Cimmarusti to have disagreements and for the victim to
leave.
On November 5, investigators returned to the resort to talk to Rossbach again and
to execute a search warrant for his cell phone. Rossbach claimed that he had lost his phone
while hunting the day before. Rossbach stated that he had been hunting on October 20 and
had gone right to bed when he got home at 8:30 or 9:00 p.m. Investigators told Rossbach
that Davis’s phone showed multiple calls between Davis’s phone and Cimmarusti’s phone
when Davis was driving to Bemidji. Initially, Rossbach denied having talked to Davis on
October 20 but then stated that they might have talked. He denied having seen Davis.

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On November 9, investigators interviewed Rossbach again. He stated that he was
very close to the victim’s family and that they were like family to him. He denied having
seen Davis on October 20 or 21 and stated that Davis had “plead[ed] his innocence” to him.
Rossbach claimed that if Davis had come to the cabin, he would have been sleeping too
heavily to have heard him. When asked if he knew anything that Cimmarusti may have
disclosed to Davis, Rossbach stated that within the past two days, Davis had disclosed that
Cimmarusti had said that he “had done something really bad.” Rossbach claimed that he
had “grilled” Davis about whether he knew anything more but that Davis denied knowing
anything about the victim’s disappearance.
Investigators returned to speak to Rossbach on November 13 after learning from
C.S.J. that she saw Rossbach leave the cabin at about 11:00 p.m. on October 20 and not
return until 4:00 a.m. the next morning. When told about the information from C.S.J.,
Rossbach continued to maintain his innocence and stated that he had told the truth during
every interview.
During November 2015, the victim’s family organized daily search parties to look
for the victim in the Bemidji area. During one search, the victim’s mother was at a gas
station with a group of volunteers when Rossbach drove by in a vehicle. She testified at
trial that as Rossbach drove by, he had “a huge grin on his face,” and she described it as a
look that she “will never forget.”
On November 13, a volunteer searching near the resort saw Rossbach and his
girlfriend as they stopped at a stop sign. Rossbach smiled, waved, rolled down the window,
and said, “You’re looking in the wrong area. She’s not here.”

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The victim’s mother tes tified that, o n November 23, Rossbach contacted he r via
social media, asking to talk to her and objecting to “the cops . . . trying to make him lose”
her. She also testified that, in the message, Rossbach described her as “someone I have
known my whole life” and said, “I love you to death and would never do anything to harm
you or our family. I know deep down that you know that.”
On December 9, Cimmarusti told investigators what he, Rossbach, and Davis had
done with the victim’s body and led them to th e burial site. Investigators found the body.
Testing showed that gasoline and a heavy petroleum distillate were present on and around
the body. Testing also showed that polystyrene, a component of Styrofoam, was present.
Rossbach was charged with aid ing an offender after the fact, in violation of Minn.
Stat. § 609.495, subd. 3 (2016). In the guilt phase of a bifurcated trial, the jury found
Rossbach guilty as charged. In the sentencing phase, the jury found that the victim’s family
suffered emotional distress as a result of not knowing whether the victim was alive or dead
between October 21 and December 9.
Aiding an offender after the fact is an unranked offense under the sentencing
guidelines. The district court ranked Rossbach’s offense at severity-level nine, which, with
Rossbach’s criminal -history score of four, resulted in a presumptive sentence of 134
months and a sentencing range from 114 to 160 months. Based on the emotional distress
that the victim’s family suffered as a result of not knowing whether the victim was alive or
dead, the district court imposed an upward durational departure and sentenced Rossbach to
201 months in prison.

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D E C I S I O N
I.
Rossbach argues that the district court erred by failing to instruct the jury to identify
the specific crime that he aided. Because Rossbach did not object to the jury instruction at
trial, this court reviews the instruction for plain error. See State v. Taylor, 869 N.W.2d 1,
15 (Minn. 2015) (articulating that we review unobjected -to jury instructions for plain
error). An appellate court may review unobjected -to jury instructions under a plain -error
analysis if the defendant establishes that (1) there was an error, (2) it was plain, and (3) the
plain error affected his substantial rights. State v. Davis , 864 N.W.2d 171, 176 (Minn.
2015).
Jury instructions must “fairly and adequately explain the law of the case.” State v.
Ihle, 640 N.W.2d 910, 916 (Minn. 2002). “[T]he court’s instructions must define the crime
charged and the court shou ld explain the elements of the offense rather than simply read
statutes.” Id.
The statute that establishes the offense of aiding an offender after the fact states:
Whoever intentionally aids another person whom the
actor knows or has reason to know has committed a criminal
act, by destroying or concealing evidence of that crime,
providing false or misleading information about that crime,
receiving the proceeds of that crime, or otherwise obstructing
the investigation or prosecution of that crime is an accomplice
after the fact and may be sentenced to not more than one -half
of the statutory maximum sentence of imprisonment . . . that
could be imposed on the principal offender for the crime of
violence. For purposes of this subdivision, “ criminal act ”
means an act that is a crime listed in section 609.11,
subdivision 9, under the laws of this state . . . .

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Minn. Stat. § 609.495, subd. 3; see also Minn. Stat. § 609.11, subd. 9 (2016) (including
first-, second-, and third-degree murder and first- and second-degree manslaughter in listed
crimes).
The district court instructed the jury as follows on the elements of aiding an offender
after the fact:
First, that [Cimmarusti] committed the crime of
homicide;
Second, that [Rossbach] knew or had reason to know
that [Cimmarusti] committed a homicide;
Third, that [Rossbach] destroyed or concealed evidence
or provided false or misleading information or obstructed the
investigation or prosecution of the crime.
The fourth element is that [Rossbach] acted with inten t
to aid [Cimmarusti]. The phrase – I’m going to go over that
last one again. The clause “with intent to” means in this case
that [Rossbach] either had a purpose to do the thing or cause
the result specified, or believed that the act, if successful,
would cause that result.

The district court also instructed the jury that the definition of “criminal act” includes first-,
second-, and third-degree murder and first- and second-degree manslaughter and that “[a]ll
of these offenses constitute the crime of homicide.”
This court has held that, when instructing the jury on an aiding-an-offender charge,
the district court’s failure to specifically identify the criminal offense that a defendant aided
was plain error. State v. Hager, 727 N.W.2d 668, 673 (Minn. App. 2007). Under Hager,
because the jury instructions did not specifically identify or require the jury to specifically
identify the predicate offense that Rossbach aided, the instructions constituted plain error,
and we must determine whether Rossbach’s substantial rights were affected.
An error affects substantial rights if it is prejudicial and
affected the outcome of the case. An error in instructing the

10
jury is prejudicial if there is a reasonable likelihood that giving
the instruction in question had a significant effect on the jury’s
verdict. The court’s analysis under this third prong of the plain
error test is the equivalent of a harmless error analysis.

State v. Ayala-Leyva, 848 N.W.2d 546, 555 (Minn. App. 2014), review denied (Minn. Aug.
11, 2015).
Rossbach argues that the district court’s failure to instruct the jury to identify the
specific offense that he aided deprived him of his right to a unanimous verdict. “[T]he jury
must unanimously agree on which acts the defendant committed if each ac t itself
constitutes an element of the crime.” State v. Stempf, 627 N.W.2d 352, 355 (Minn. App.
2001). “But a jury need not agree unanimously with respect to the alternative means or
ways in which a crime can be committed.” State v. Rucker, 752 N.W.2d 538, 547 (Minn.
App. 2008), review denied (Minn. Sept. 23, 2008). “[I]f the statute establishes alternative
means for satisfying an element, unanimity on the means is not required.” Ihle, 640
N.W.2d at 918. Jury instructions violate a defendant’s right to a unanimous verdict when
the instructions “allow for possible significant disagreement among jurors as to what
[criminal] acts the defendant committed.” Stempf, 627 N.W.2d at 354.
In Hager, this cour t concluded that the failure to identify the specific offense
deprived the defendant of his right to a unanimous verdict and affected his substantial
rights. 727 N.W.2d at 675. But, unlike this case, in Hager there was evidence that the
original offender had committed multiple offenses, specifically, methamphetamine
possession, theft, possession of drug paraphernalia, and obstructing legal process. Id. at
674. This court noted that “the jury had the entire fact scenario to consider and was
permitted to choose a crime that [the defendant] may have aided.” Id.

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Here, it was undisputed that the criminal act was homicide and that the homicide
resulted from Cimmarusti physically assaulting the victim on October 20 during an
argument. Because any level of h omicide is a criminal act, aiding Cimmarus ti was an
offense regardless of the level of homicide that Cimmarus ti committed. Therefore,
unanimity on the level of homicide was not required, there is no reasonable likelihood that
the error in instructing the jury had a significant effect on the jury’s verdict, and Rossbach
is not entitled to reversal of his conviction.
II.
Rossbach argues that the district court erred by assigning severity -level nine to his
offense. Aiding an offender as an after-the-fact accomplice is an unranked offense. Minn.
Sent. Guidelines cmt. II.A.03 (2016). Assignment of a severity level for an unranked
offense is within the district court’s discretion and will only be disturbed upon an abuse of
discretion. State v. Kenard, 606 N.W.2d 440, 442 (Minn. 2000); Minn. Sent. Guidelines
cmt. II.A.05 (2016) (stating that when an offense is unranked, “judges should exercise their
discretion by assigning . . . a severity level which they believe to be appropriate”).
When assigning a severity level to an unranked offense, the district court considers
the gravity of the specific conduct underlying the unranked
offense; the severity level assigned to any ranked offense
whose elements are similar to those of the unranked offense;
the conduct of an d severity level assigned to other offenders
for the same unranked offense; and the severity level assigned
to other offenders who engaged in similar conduct.

Kenard, 606 N.W.2d at 443 (footnote omitted). No single factor is controlling, and the list
is not exhaustive. Id.

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The district court found:
The first factor the Court considers is the gravity of
[Rossbach’s] conduct underlying the offense. [Rossbach] was
found to have aided Marchello Cimmarusti after Cimmarusti
had committed homicide. While t he jury found that
[Rossbach] did not actively participate in the burning and
burying of [the victim’s] body, this Court is convinced by the
testimony that he was present when the plan was concocted to
bury her body, he assisted Davis in buying the product s used
to burn her body, he directed Cimmarusti to the site where her
body was buried; he was present while her body was being
desecrated and buried, and he participated in covering up the
offense by lying repeatedly to law enforcement over the span
of many weeks: The jury found, in the Blakely portion of the
trial, that [the victim’s] family suffered emotional distress from
October 21 until December 9, 2015, not knowing whether [the
victim] was alive or dead. Their distress was certainly the
result, in part, of [Rossbach’s] continuing deceit in concealing
what had happened to [the victim]. Although [Rossbach] did
not cause the death of [the victim] and did not (according to the
jury) actively participate in the mutilation of her body, he is
still culpable of an extremely serious offense.

On the second factor, the district court found that “[i]n this case, as in Kenard, the
most similar offense to the one of which [Rossbach] has been convicted” is aiding an
offender under Minn. Stat. § 609.495, subd. 1(a). In Kenard, the defendant was convicted
of aiding an offender under section 609.495, subdivision 3, for aiding in the cover up of a
murder. 606 N.W.2d at 442-43. The supreme court noted that the ranked offense with the
most similar elements was aiding an offender under subdivision 1, which is a severity-level
one, but recognized that subdivision 3 targeted more serious criminal conduct. See id. at
444 (stating that “[o]bviously, the legislature considers convictions under subdivision 3
more serious than those under subdivision 1”).

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The third and fourth factors are the severity levels assigned in other cases involving
the same unranked offense and to offenders who committed similar conduct. In Kenard,
the supreme court noted that in cases in whic h severity-levels seven and eight had been
assigned to convictions under section 609.495, subdivision 3, “ the offender was either
present at the time of the underlying offense, participated to some degree in the underlying
offense, or readily participated in covering up the underlying offense .” Kenard, 606
N.W.2d at 445.
Rossbach encouraged Cimmarusti to conceal the crime when he asked Cimmarusti
if he wanted his children to have no parents or at least one parent. Rossbach participated
in buying the Styro foam products and directing Cimmarusti to the burial site. Rossbach
was present during the burning. He repeatedly lied to investigators. He provided
Diazepam to Cimmarusti to help him be relaxed when talking to investigators. The district
court properl y considered the Kenard factors and did not abuse its discretion when it
assigned severity-level nine to Rossbach’s offense.
III.
Rossbach argues that he was deprived of his right to a jury trial by the district court’s
failure to submit the issue of the specific predicate offense to the jury because the statutory
maximum sentence for aiding an offender in a second-degree murder is 240 months, Minn.
Stat. § 609.19 (2016), while the maximum sentences for the lesser homicide offenses
ranged from 150 to 120 months. Minn. Stat. §§ 609.195-.205 (2016); see also Minn. Stat.
§ 609.495, subd. 3. Rossbach argues that even though he did not object to judicial fact-
finding on this element, this court can review the issue de novo. We need not determine

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this issue because, even under the more stringent plain-error standard, Rossbach is entitled
to resentencing. See State v. Little , 851 N.W.2d 878, 884 -85 (Minn. 2014) (assuming
without deciding that plain-error standard applied to unobjected -to-jury-trial-waiver issue
and concluding that defendant prevailed under plain-error standard).
A fact that increases the statutory maximum sentence is by definition an element of
the offense to be determined by the jury. Alleyne v. United States, 570 U.S. 99, 107, 133
S. Ct. 2151, 2158 (2013); see also State v. Derosier, 719 N.W.2d 900, 903-04 (Minn. 2006)
(concluding that the right to a jury trial under Blakely may not be waived by silence).
Therefore, the district court plainly erred by not submitting the determination of the
specific predicate offense to the jury without obtaining a personal waiver of Rossbach’s
right to a jury trial on that element. See Little, 851 N.W.2d at 884.
Based on the record evidence, the jury could have found that Cimmarusti committed
a homicide other than second-degree murder. See Minn. Stat. §§ 609.19-.205. The Little
court stated:
[T]he record here is silent and provides no reliabl e evidence
suggesting that, had [the defendant] known of the amended
charge, he would have waived his right to a jury trial.
Accordingly, we conclude that, had the district court
personally questioned [the defendant] about his right to a jury
trial on the first-degree criminal sexual conduct charge in
accordance with the requirements of Minn. R. Crim. P. 26.01,
there is a reasonable possibility that [the defendant] would not
have waived that right.

851 N.W.2d at 886. As in Little, the record here is silent and provides no reliable evidence
that, had Rossbach known that the degree of the homicide affected the statutory maximum
sentence, he would have waived his right to have the jury determine the specific predicate

15
offense. Consequently, we conclude that, had the district court questioned Rossbach about
his right to have the jury determine the specific predicate offense, there is a reasonable
possibility that he would not have waived that right, and the error in not obtaining a
personal waiver affected Rossbach’s substantial rights.
If the first three prongs of the plain-error test are satisfied, we may address the error
to ensure fairness and the integrity of the judicial proceedings. State v. Griller, 583 N.W.2d
736, 740 (Minn. 1998). As the supreme court stated in Little,
Allowing [a defendant] to stand convicted of a much more
serious offense when there is a reasonable likelihood that but
for the district court’s error he would not have waived his
constitutional right to a jury trial . . . will adversely affect the
public’s confidence in the fairness and integrity of judicial
proceedings.

851 N.W.2d at 886. We, therefore, reverse Rossbach’s sentence and remand for
resentencing. Because we are remanding for resentencing, we do not reach the rem aining
issues that Rossbach has raised regarding the sentencing departure.
Affirmed in part, reversed in part, and remanded.