State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A19-0358

State of Minnesota,
Respondent,

vs.

Darrell Wayne Brownbull, Jr.,
Appellant.

Filed December 23, 2019
Affirmed
Reilly, Judge

Sherburne County District Court
File No. 71-CR-18-597

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Kathleen A. Heaney, Sherburne County Attorney, George R. Kennedy, Assistant County
Attorney, Elk River, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Jenna Yauch-Erickson, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Reilly, Presiding Judge; Bjorkman, Judge; and Cochran,
Judge.
U N P U B L I S H E D O P I N I O N
REILLY, Judge
In this direct appeal from judgment of conviction for second-degree criminal sexual
conduct, appellant argues (1) the district court erred by admitting the victim’s out-of-court

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statements that were not consistent with her trial testimony and were prejudic ial to
appellant’s defense; and (2) the district court abused its discretion by denying appellant’s
motion for a downward dispositional sentencing departure. Because the district court did
not err when it admitted the out -of-court statements and did not a buse its discretion
regarding sentencing, we affirm.
FACTS
In March 2018, appellant Darrell Brownbull Jr. took the 13-year-old victim,1 her
siblings, and their mother to the Mall of America, where the children’s mother met up with
her sisters to attend a concert that evening. The victim and her siblings were to stay with
appellant that night so he could watch them. After spending the day out, appellant and the
children returned to appellant’s apartment where they all watched movies in appellant’s
living room. The younger children were on an air mattress, while appellant and the victim
were on the couch. Eventually, the victim fell asleep on the couch.
The victim woke up and found appellant standing beside her and propping her up
into a seated position. She noticed that her leggings and underwear were down around her
knees and her vagina felt “irritated.” The victim stood to pull her leggings up, and appellant
grabbed her hand and attempted to lead her toward his bedroom. The victim sat back down
on the couch and appellant went to bed. The victim then attempted to call her mother and
her aunts, but was unable to reach them. After text messaging a friend, the victim decided
to call the police and left appellant’s apartment to do so. The victim reported to the police

1 The victim refers to appellant as her uncle , but she and appellant are not biologically
related.

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that she “might have just got raped.” The police arrived at the apartment and transported
the victim to the police station where she was questioned. While at the s tation, the victim
was able to reach her mother, who arrived at the police station and took the victim to the
hospital for examination.
DNA results indicated a match between a sample taken from appellant and samples
from the victim that were obtained during the sexual -assault exam as well as from the
victim’s underwear. Appella nt was subsequently charged with two counts of second -
degree criminal sexual conduct in violation of Minn. Stat. § 609.343, subd. 1 (b), (e)(ii)
(2016).
Prior to trial, the state filed a notice of intent to use the victim’s out-of-court
statements. The state identified Minn. R. Evid. 801(d)(1)(B), 803(5), and 807 as its bases
for admission and disclosed that it intended to introduce statements made by the victim to
the detective, the nurse who performed t he victim’s sexual assault exam, and the victim’s
mother. The defense did not object to the admission of the statements prior to or during
the trial.
At trial, the victim testified to various statements that appellant made to her after
she woke up and noticed that her leggings were down at her knees. The victim testified
that appellant told her he was sorry, he was drunk, he “didn’t mean to,” he would buy her
anything she wanted, and “not to tell anyone.” The nurse who conducted the victim’s
sexual assault exam also testified. She stated that the victim told her that appellant had
said to the victim “I didn’t mean to do that to you,” and that he “didn’t want to go to jail.”

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Following a trial, the jury found appellant guilty of both charged offenses. At the
sentencing hearing, appellant requested a downwa rd dispositional departure. Appellant
argued he was particularly amenable to probation because he took full responsibility for
his actions, he is remorseful, he has no criminal history, he has been an “outstanding
individual up to [the] incident,” he is a leader in his community, and he is respected in his
job. The state opposed appellant’s motion and argued that appellant should be sentenced
to 108 months in prison.
The district court reviewed 32 letters of support submitted on behalf of appellant. It
also heard arguments from appellant’s counsel and the state, an impact statement from the
victim, and a statement from appellant in which appellant apologized to the victim and the
victim’s mother. The district court noted that it reviewed the Trog factors and determined
that there was not a basis for a downward dispositional departure despite the letters of
support and appellant’s lack of criminal history. State v. Trog , 323 N.W.2d 28 (Minn.
1982). The district court therefore denied appellant’s departure motion and sentenced him
to 90 months in prison on one count of second-degree criminal sexual conduct. This appeal
follows.
D E C I S I O N
I. The district court did not plainly err when it admitted the victim’s prior
out-of-court statements.

Appellant argues that the district court prejudicially erred when it admitted evidence
of the victim’s prior out -of-court statements un der Minn. R. Evid. 801(d)(1)(B).
Specifically, appellant contends that the victim’s testimony that appellant told her he was

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sorry, he was drunk, he “didn’t mean to,” he would buy her anything she wanted, and “not
to tell anyone” is not consistent with the victim’s out -of-court statements offered by the
nurse, who testified that the victim told her that appellant said to the victim “I didn’t mean
to do that to you,” and that he “didn’t want to go to jail.”
Generally, hearsay is not admissible. Minn. R. Evid. 802. However, pursuant to
Minn. R. Evid. 801(d)(1)(B), “a witness’s prior statement that is consistent with his trial
testimony is admissible as nonhearsay evidence if the statement is helpful to the trier of
fact in evaluating the witness’s credibility, and if the witness testifies at trial and is subject
to cross -examination about the statement.” State v. Bakken , 604 N.W.2d 106, 108 -09
(Minn. App. 2000), review denied (Minn. Feb. 24, 2000). The district court must determine
“whether the prior statement and the trial testimony are consistent with each other.” Id. at
109. “The trial testimony and the prior statement need not be verbatim” in order to be
considered consistent. Id. Rather, the statements must be “reasonably consistent” with
each other. In re Welfare of K.A.S., 585 N.W.2d 71, 76 (Minn. App. 1998). “[W]here
inconsistencies directly affect the elements of the c riminal charge, the Rule 801(d)(1)(B)
requirement of consistency is not satisfied and the prior inconsistent statements may not be
received as substantive evidence under that rule.” Bakken, 604 N.W.2d at 110.
Appellant does not dispute that he failed to object to the admission of the statements
prior to trial or during trial. “On appeal, an unobjected -to error can be reviewed only if it
constitutes plain error affecting substantial rights.” State v. Ramey, 721 N.W.2d 294, 297
(Minn. 2006) (citing Minn. R. Crim. P. 31.02). Under the plain -error standard, the
appellant must show: (1) error , (2) that was plain , and (3) that affected substantial rights.

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State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998). “An error is plain if it is clear and
obvious at the time of appeal. An error is clear or obvious if it contravenes case law, a rule,
or a standard of conduct.” State v. Little, 851 N.W.2d 878, 884 (Minn. 2014) (citation and
quotations omitted).
We discern no plain error because we conclude that the cha llenged out-of-court
statements are consistent with the victim’s testimony . First, the statement that appellant
“didn’t mean to do that to you” is consistent with the victim’s testimony that appellant said
he “didn’t mean to.” Second, appellant’s statement that he “didn’t want to go to jail,” is
“reasonably consistent” because it is another admission of guilt similar to the others the
victim testified to (appellant told the victim he was sorry, he was drunk, he “didn’t mean
to,” he would buy her anything she wanted, and “ not to tell anyone”). Moreover, the
discrepancy does not “directly affect the elements of the criminal charge.” Bakken, 604
N.W.2d at 110. The district court did not err when it admitted the out-of-court statements
because they were “reasonably consistent” and did not affect the elements of the criminal
charge.
II. The district court did not abuse its discretion when it denied appellant’s
motion for a downward dispositional departure.

Appellant argues that the district cou rt abused its discretion by denying his motion
for a dispositional departure and imposing a 90-month sentence pursuant to the Minnesota
Sentencing Guidelines.
The Minnesota Sentencing Guidelines prescribe a sentence or range of sentences
that “is presumed to be appropriate.” State v. Soto , 855 N.W.2d 303, 308 (Minn. 2014)

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(quotation omitted). “ [A] sentencing court can exercise its discretion to depart from the
guidelines only if aggravating or mitigating circumstances are present, and those
circumstances provide a substantial and compelling reason not to impose a guidelines
sentence.” Id. (quotations and citations omitted). “[A]n explanation is not required when
the court considers reasons for departure but elects to impose the presumptive sentence.”
State v. Van Ruler , 378 N.W.2d 77, 8 0 (Minn. App. 1985). A district court’s decision to
depart from the presumptive guidelines sentence is reviewed for an abuse of discretion.
State v. Solberg, 882 N.W.2d 618, 623 (Minn. 2016). A district court “abuses its discretion
when its decision is based on an erroneous view of the law or is against logic and the facts
in the record.” State v. Nicks , 831 N.W.2d 493, 503 (Minn. 2013) (quotation omitted).
Only in a “rare” case will an appellate court reverse a sentencing court’s refusal to depart.
State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981).
Appellant argues that the district court erroneously concluded that his exercise of
his constitutional right to a jury trial demonstrated a lack of r emorse. Appellant also
contends that because various factors support his particular amenability to probation, the
district court abused its discretion by “treating a supposed lack of adequate remorse as
dispositive of the departure analysis.”
Pursuant to the sentencing guidelines, a defendant’s particular amenability to
probation is a mitigating factor that may be used as a reason for a downward dispositional
departure. Minn. Sent. Guidelines 2.D.3.a(7) (2016). “Numerous factors, including the
defendant’s age, his prior record, his remorse, his cooperation, his attitude while in court,
and the support of friends and/or family, are relevant to a determination whether a

8
defendant is particularly suitable to individualized treatment in a probationary setting .”
Trog, 323 N.W.2d at 31. Remorse is a factor that may support a downward dispositional
departure. Solberg, 882 N.W.2d at 625. “A primary justification for considering remorse
in sentencing is that a defendant’s remorse bears on his or her ability to be rehabilitated.”
Id. The “district court is properly tasked with deciding whether a defendant’s actions
express genuine remorse and how much weight to give to that remorse.” Id. at 626. While
the district court “has discretion to impose a downward di spositional departure if a
defendant is particularly amenable to probation, . . . [the court] is not required to do so.”
State v. Olson , 765 N.W.2d 662, 664 -65 (Minn. App. 2009). “The reviewing court may
not interfere with the sentencing court’s exercise of discretion, as long as the record shows
the sentencing court carefully evaluated all the testimony and information presented before
making a determination.” Van Ruler, 378 N.W.2d at 80-81.
The district court denied appellant’s request for a downward dispositional departure.
The presumptive guidelines sentence is 90 months’ imprisonment with a presumptive range
of 90 to 108 months’ imprisonment. The district court sentenced appellant to 90 months
in prison. Because the district court imposed a presumptive sentence, it was not required
to explain its decision to do so. See Van Ruler, 378 N.W.2d at 80 (stating that the district
court need not provide an explanation when it considers reasons for departure but imposes
a presumptive sentence).
Moreover, the record shows that the district court considered reasons for departure.
The district court reviewed all 32 letters of support submitted on behalf of appellant and
the presentence investigation (PSI). The district court considered the letters of support and

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appellant’s absence of criminal history, but ultimately denied appellant’s motion for a
downward dispositional departure based on appellant’s lack of genuine remorse.
Appellant’s lack of genuine remorse is supported by the record. The PSI writer noted that
while appellant was remorseful, “[t]here is some question as to what [appellant] is
remorseful for as he reported perjury occurred by the victim and victim’s mother during
trial.”
The district court care fully evaluated all of the information presented to it before
making a determination. Moreover, even if there were factors that supported appellant’s
amenability to probation, the district court is not required to impose a downward
dispositional departure when such factors are present. The district court did not abuse its
discretion when it imposed a presumptive sentence under the guidelines.
Affirmed.