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This opinion will be unpublished and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
A19-0957

State of Minnesota,
Respondent,

vs.

Brandon Joseph Rossbach,
Appellant.

Filed June 22, 2020
Affirmed
Slieter, Judge

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

Keith Ellison, Attorney General, Michael Everson, Assistant Attorney General, St. Paul,
Minnesota; and

David 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 Slieter, Presiding Judge; Bjorkman, Judge; and Jesson,
Judge.
U N P U B L I S H E D O P I N I O N
SLIETER, Judge
Appellant challenges his sentence, arguing that the district court exceeded the scope
of this court’s remand and violated his double-jeopardy rights by convening a sentencing

2
jury. He also argues that the district court violated his Confrontation-Clause rights during
the sentencing trial, ruled improperly on a hearsay challenge, erred in limiting the facts that
the state was required to prove, and abused its discretion by imposing an upward durational
departure.
The district court properly convened a senten cing jury , which was not a second
prosecution for the same offense and did not violate Rossbach’s right s under the
Confrontation Clause. Also, the district court did not err in its evidentiary ruling s and
properly imposed a n upward durational departure at sentencing. For these reasons , we
affirm.
FACTS
Appellant Brandon Joseph Rossbach was convicted of aiding an offender pursuant
to Minn. Stat. § 609.495, subd. 3 (2016). State v. Rossbach , No. A17 -0406, 2018 WL
1701837 *1, *3 (Minn. App. Apr. 9, 2018) ( Rossbach I), review denied (Minn. June 27,
2018). The princip al offender caused the death of his girlfriend as he was physically
assaulting her and she fell down a flight of stairs. Id. at *1. Rossbach, despite being close
to the victim’s family, helped convince the principal offender to burn and bury the body
and went to Walmart with him to buy supplies to aid in this process. Id. at *1-2.
This court in Rossbach I, which affirmed the conviction but remanded for
resentencing, found no clear error with the jury instruction s and found that the severity
level assigned by the court for this offense was proper. This court concluded , however,
that the district court erred by failing to obtain Rossbach’s jury waiver regarding the level

3
of the predicate offense, a necessary sentencing fact. Id. at *4. Therefore, this court
“reverse[d] Rossbach’s sentence and remand[ed] for resentencing.” Id. at *7.
Upon remand, the district court convened a sentencing jury, reasoning that the court
of appeals did not limit its scope of its remand in Rossbach I, and the sentencing jury did
not implicate double jeopardy to Rossbach. In a subsequent pretrial evidentiary ruling, the
district court ordered that the state “will not be re quired to prove that Rossbach knew or
had reason to know the specific degree of homicide committed by [the principal].” Based
on the jury’s verdict that the principal offender committed second -degree murder and the
previously found aggravating factor, the district court resentenced Rossbach to 201 months
in prison. This sentence was a 41-month upward durational departure. This appeal follows.
D E C I S I O N
Rossbach raises four arguments on appeal. We analyze each argument in turn.
I. The district court did not err by convening a sentencing jury.

Rossbach argues that the district court exceeded the scope of this court’s remand
and violated double jeopardy by convening a sentencing jury.
A. Scope of Remand
District courts have a duty to strictly follow the remand instruction terms from
appellate courts. See State v. Roman Nose, 667 N.W.2d 386, 394 (Minn. 2003). But district
courts are given broad discretion on remand so long as they act consistent with the remand
instructions provided. State v. Montermini, 819 N.W.2d 447, 454 (Minn. App. 2012). A
district court’s compliance with a remand instruction is reviewed for an abuse of discretion.
Id.

4
In Rossbach I, this court decided to “reverse Rossbach’s sentence and remand for
resentencing.” 2018 WL 1701837 at *7. Rossbach argues that the district court was strictly
limited to holding a sentencing hearing without convening a jury and sentencing him to a
bottom-of-the-box prison term. We disagree. Because this court in Rossbach I determined
as the basis for remand that the district court had erred in failing to obtain Rossbach’s jury
waiver as to the predicate offense before sentencing, the district court convened a
sentencing jury to determine that predicate offense. That was precisely the purpose of this
court’s remand and, therefore, within its scope. Rossbach provides no authority to support
his proposition that the district court was limited to sentence Rossbach to a bottom-of-the-
box sentence. The district court’s decision to convene a sentencing jury was within the
scope of the remand and, therefore, not an abuse of discretion.
B. Double Jeopardy

The Fifth Amendment states that “[n]o person shall . . . be subject for the same
offence to be twice put in jeopardy of life or limb.” U.S. Const. amend. V. This Double -
Jeopardy Clause “protects criminal d efendants from three distinct abuses: [1] a second
prosecution for the same offense after acquittal; [2] a second prosecution for the same
offense after conviction; and [3] multiple punishments for the same offense.” Hankerson
v. State, 723 N.W.2d 232, 236-37 (Minn. 2006) (quotation omitted). Rossbach argues that
the sentencing trial violated the second abuse. Appellate courts review alleged double -
jeopardy violations de novo. State v. Large, 607 N.W.2d 774, 778 (Minn. 2000).

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In denying Rossbach’s dou ble-jeopardy argument, the district court relied on the
supreme court’s holding in Hankerson. We agree that the reasoning of Hankerson directs
our decision to affirm the district court.
In Hankerson, the appellant petitioned for postconviction relief to the district court
to apply the presumptive sentence for her crime after the United States S upreme Court
issued the Blakely decision. 723 N.W.2d at 233. Ha nkerson challenged her aggravated
sentence because it was based on judicial fact finding , which violated Blakely. Id. The
district court rejected her petition to apply the presumptive sentence and, instead, scheduled
a sentencing trial. Id. The supreme court held that a sentencing trial that follows a Blakely
infringement does not violate a defendant’s double -jeopardy right s because it is not a
second prosecution. Id. at 237. Rather than present a double -jeopardy violation, it is the
appropriate action to take when a defendant argues that a sentencing issue was not befor e
the jury. See id. at 239. Jeopardy does not attach until a jury affirmatively rejects the
presence of the possible aggravating factors in a manner that can reasonably be considered
an acquittal. Id. at 237.
Rossbach makes two arguments against Hankerson’s applicability to his claim .
First, Rossbach notes that Hankerson is distinguishable because H ankerson’s original
sentence occurred before Blakely was decided. This argument lacks merit because the
supreme court, in reaching its decision in Hankerson, did not base its decision on a new
legal development created by Blakely. The Hankerson court aptly stated, “Because it is
Hankerson who requests the vacation of the sentence, she can hardly complain that she is
still in jeopardy—her options are to accept the original sentence or face resentencing if the

6
original sentence is vacated at her request.” Id. at 239. This equally applies to Rossbach’s
claim. The district court, therefore, properly denied Rossbach’s request to impose a
presumptive sentence for the lowest possible level of predicate offense.
Second, Rossbach notes that Hankerson involved a sentencing trial that would
decide for the first time whether aggravating sentencing factors exist. Rossbach argues
that his case, in contrast to Hankerson, requires the sentencing jury to decide an element
of the offense for which Rossbach was already convicted. The Hankerson reasoning
compels our disagreement . Rossbach’s sentencing trial , like that in Hankerson, was a
continuing prosecution of the same offense for which he had been found guilty . The jury
was asked, consistent with this court’s remand for resentencing, to determine one issue that
was not addressed in his original sentencing phase —the principal offender’s predicate
crime. Rossbach was not subject to a second prosecution for the same element.
In sum, jeopardy had not yet attached. Therefore, the district court did not abuse its
discretion by convening a sentencing jury.
II. The district court did not violate Rossbach’s Confrontation-Clause rights.

Rossbach argues that his C onfrontation-Clause rights were violated when the
district court allowed the state to play for the jury, in lieu of the testimony of the principal
offender, a segment of the principal offender’s testimony from Rossbach’s first trial.
The Confrontation Clause states , “In all criminal prosecutions, the accused shall
enjoy the right . . . to be confronted with the witness against him.” U.S. Const. amend. VI.
Minnesota’s constitution contains similar language . Minn. Const . art. I, § 8; State v.
Holliday, 745 N.W.2d 556, 565 (Minn. 2008). “[T]he Confrontation Clause prohibits the

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‘admission of testimonial statements of a witness who did not appear at trial unless he was
unavailable to testify, and the defendant had a prior opportunity for cross-examination.’”
Id. (quoting Crawford v. Washington , 541 U.S. 36, 53 -54, 124 S. Ct. 1354 (2004)).
Whether an appellant’s Confrontation-Clause rights were violated is a question of law that
appellate courts review de novo. See id.
The principal offender was present at the sentencing trial on remand , took the
witness stand and, as was anticipated by all parties, refused to testify. The district court
allowed the state to use the principal offender’s previous testimony from Rossbach’ s first
trial and play it to the sentencing jury. The district court concluded that use of the prior
testimony did not violate the Confrontation Clause because the principal offender’s refusal
to testify made him unavailable and Rossbach had an opportunit y to cross examine the
principle when he last testified.
First, a witness is deemed unavailable when he or she is brought to the witness stand
but refuses to testify. State v. Irlas, 888 N.W.2d 709, 713 (Minn. App. 2016). Here, the
principal offender to ok the witness stand and refused to testify , and so t he district court
properly considered him unavailable pursuant to the Confrontation-Clause analysis.
Second, the defendant was provided a prior opportunity for cross -examination of
the principal offender. Rossbach argues that, although he conducted an extensive cross -
examination in the underlying trial, this does not satisfy the Confrontation Clause because
the sentencing trial involved a different issue. Rossbach provides no legal authority to
support this distinction and we are aware of none. Additionally, as the state points out,

8
Rossbach conducted an extensive cross-examination of the principal offender that spanned
over fifty pages of transcript.
The district court’s decision to allow the principal offender’s testimony from
Rossbach’s initial trial during the sentencing trial did not violate Rossbach’s
Confrontation-Clause rights.
III. The district court did not err in its evidentiary rulings.

Rossbach also challenges two evidentiary rulings by the district court. He argues
that (1) the district court erred in admitting the recorded testimony analyzed in the previous
section because it was inadmissible hearsay, and (2) the district court erred by not requiring
the state to prove that Rossbach knew, or should have known, the level of hom icide the
principle committed.
A. Hearsay
Hearsay is an out-of-court statement used to prove the truth of the matter asse rted,
and it is generally inadmissible unless an exception applies. Minn. R. Evid. 801, 802. “A
determination that a statement meets the foundational requirements of a hearsay exception
is reviewed for an abuse of discretion.” Holt v. State, 772 N.W.2d 470, 483 (Minn. 2009).
The district court allowed the principal offender’s prior trial testimony as having
been given “[i]n a criminal proceeding involving a retrial of the same defendant for the
same, or an included offense, testimony given as a witness at the prior trial or in a
deposition taken in the course thereof.” Minn. R. Evid. 804(b)(1).
Rossbach argues that this exception does not apply because the sentencing trial was
not a retrial. The sentencing trial was a continuation of the underlying t rial to properly

9
present the issue of the predicate offense for sentencing purposes to the jury. Rossbach has
not shown the district court erred in concluding that the hearsay exception applies.
B. The State’s Burden
Rossbach next argues that the district court erred when it determined that the state
did not need to prove whether Rossbach knew, or had reason to know, the level of homicide
that the principal offender committed. The district court explained, as part of its basis for
this evidentiary ruling, that the court of appeals already resolved this issue in Rossbach I
when it affirmed Rossbach’s conviction . We agree with the district court’s interpretation
of our prior decision.
In Rossbach I, we concluded that the district cou rt did not commit reversible error
by failing to require that the state specifically prove the level of homicide that the principal
offender committed. 2018 WL 1701837 at *5. Rossbach’s sentence was the only issue on
remand. Id. at *7. Therefore, the district court did not err in concluding that this issue has
been resolved and is unrelated to this sentencing phase of the trial.
IV. The district court did not abuse its discretion by imposing an upward
durational departure.

Finally, Rossbach argues that the district court erred in imposing an upward
durational departure because it failed to properly explain the substantial and compelling
circumstances which warrant the departure. 1 Rossbach believes that emotional distress

1 Rossbach also argues that the district court erred at the original sentencing trial by relying
on facts not found by the jury. We need not address this argument because Rossbach
succeeded in Rossbach I in obtaining a reversal of his original sentence. This issue is moot.
See In re Schmidt, 443 N.W.2d 824, 826 (Minn. 1989) (stating that issues are dismissed as
moot “[i]f the court is unable to grant effectual relief.”).

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caused by the duration the body was missing, which is the reason provided by the district
court in support of the departure, is a necessary component to aiding an offender of second-
degree murder and cannot be used to justify an upward durational departure.
Appellate courts review upward sentencing departures for an abuse of discretion.
State v. Parker , 901 N.W.2d 917, 927 (Minn. 2017). We will affirm a district court’s
departure so long as the reasons given are permitted and factually supported. See State v.
Edwards, 774 N.W.2d 596, 601 (Minn. 2009).
The district court must explain why the jury’s addition al findings of fact “create a
substantial and compelling reason to impose a sentence outside the range on the grid.”
State v. Rourke , 773 N.W.2d 913, 919 (Minn. 2009). A district court does not need to
explain why a factor justifies departure if the justification is indistinguishable from the fact
itself. See State v. Alvarez , 820 N.W.2d 601, 623 (Minn. App. 2012) , aff’d (Minn. Sept.
11, 2013). (stating that not explaining why jury’s finding of “group of three or more”
factors “did not preclude the court from using it as a reason for departure” because the facts
and reasons supporting departure are “indistinguishable.”) A district court needs to
articulate only o ne reason to justify departure. State v. Solberg , 882 N.W.2d 618, 624
(Minn. 2016).
During sentencing, the district court stated, “I am going to be imposing the same
sentence that I imposed in December of 2016. . . . I am going to, at this point, indicate that
that is going to be a top-of-the-box 160 months and 41 months for the aggravating factors
that the jury found at the time of the original trial.” The aggravating factor that the jury
found from the original trial was that the family of the victim s uffered emotional distress

11
in not knowing whether the victim “was alive or dead from October 21 until December 9.”
Like Alvarez, the facts supporting the jury’s finding and the reasons supporting departure
on this finding are indistinguishable. See 820 N.W.2d at 623. The district court imposed
an upward durational departure, sentencing Rossbach to 201 months in prison. Id.
In State v. Hicks , the supreme court said, “The offender’s conduct in concealing
the victim’s body is more serious than the typical second -degree unintentional murder
because family and friends of a victim suffer additional trauma by not knowing whether
their relative or friend is dead or alive, and concealment is contrary to the proper respectful
treatment due to the remains of a deceased person.” 864 N.W.2d 153, 159 (Minn. 2015).
We find this reasoning persuasive and applicable to Rossbach’s aiding -an-offender
conviction. The victim’s body was missing for several weeks, and Rossbach lied to the
police three times about having any knowledge pertaining to the victim. The emotional
distress that the family faced while the victim’s body was missing provided the district
court a sufficient and compe lling reason to impose a heightened sentence. The district
court did not abuse its discretion by imposing an upward durational departure.
Affirmed.