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This opinion will be unpublished and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
A20-0071

State of Minnesota,
Respondent,

vs.

Eugene Foster Cole,
Appellant.

Filed December 28, 2020
Affirmed in part, reversed in part, and remanded
Larkin, Judge

Clearwater County District Court
File No. 15-CR-18-413

Keith Ellison, Attorney General, Peter Magnuson, Assistant Attorney General, St. Paul,
Minnesota; and

Al Rogalla, Clearwater County Attorney, Bagley, Minnesota (for respondent)

Cathryn Middlebrook, Chief App ellate Public Defender, John Donovan, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Larkin, Presiding Judge; Johnson, Judge; and Bjorkman,
Judge.

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U N P U B L I S H E D O P I N I O N
LARKIN, Judge
In this appeal from conviction s of first- and third-degree criminal sexual conduct,
appellant contends that the district court plainly erred by allowing hearsay testimony at his
trial, abused its discretion by denying his motion for a downward sentencing departure, and
erred as a matter of law by entering judgments of conviction for both first- and third-degree
criminal sexual conduct. We affirm in part, reverse in part, and remand.
FACTS
In September 2019, the state charged appellant Eugene Foster Cole with two counts
of first -degree criminal sexual conduct and one count of third -degree criminal sexual
conduct, alleging that he sexually abused his children’s babysitter, B.D., from 201 2 to
2014, when she was between the ages of 14 and 16.
At trial, the jury heard testimony from several witnesses, including B.D., her
godmother, and Cole. B.D. testified that she babysat for Cole ’s family in 2012, when she
was 14 years old. She testified that Cole engaged in ongoing sexual activity with her after
she reached out to him on Facebook. The sexual activity included vaginal, anal, and oral
penetration. B.D. could not recall specific dates when the sexual abuse occurred, except
she was certain that one instance occurred on her 15th birthday. B.D. testified that she
initially lied to her godmother about the sexual abuse but later admitted that it had occurred.
B.D.’s godmother testified regarding statements that B.D. had made regarding the
sexual abuse. Specifically, she testified that s he asked B.D. about her relationship with
Cole after hearing a rumor, but B.D. denied any sexual abuse. B.D. later told her

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godmother that she had lied and that “it was true that they were sleeping together.” B.D.
also told her godmother that she was hesitant to have anal sex with Cole, but he insisted.
Cole testified that the sexual abuse never occurred.
The jury found Cole guilty of one count of first-degree criminal sexual conduct and
the single count of third-degree criminal sexual conduct. Cole moved for dispositional and
durational sentencing departure s. The district court entered a judgment of conviction on
each of the guilty verdicts . The court did not expressl y rule on Cole’s departure motion,
but it sentenced Cole to a presumptive guidelines sentence of 144 months’ imprisonment
on the first-degree conviction. The court did not sentence on the third-degree conviction.
This appeal followed.
D E C I S I O N
I.
Cole contends that the district court plainly erred by permitting B.D.’s godmother
to testify about B.D.’s out-of-court statements regarding the sexual abuse. Cole asserts that
the godmother’s testimony was inadmissible hearsay.
Hearsay is “a statement, other than one made by the declarant while testifying at the
trial or hearing, offered in evidence to prove the truth of the matter asserted.” Minn. R.
Evid. 801(c). Hearsay is inadmissible unless an exception applies. Minn. R. Evid. 802.
There are numerous exceptions. See, e.g., Minn. R. Evid. 803.
Cole did not object to the alleged hearsay . We therefore review for plain error .
State v. Smith, 932 N.W.2d 257, 271 (Minn. 2019) . To succeed on a claim of plain error,
an appellant must est ablish error, that is plain, and that affects his substantial rights. Id.

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An error is plain if it is cl ear or obvious. State v. Davis , 735 N.W.2d 674, 681 (Mi nn.
2007). Relief will not be granted unless the error “seriously affects the fairness and
integrity of the judicial proceedings.” State v. Little, 851 N.W.2d 878, 884 (Minn. 2014).
Turning to the hearsay challenge, the supreme court has stated:
The number and variety of exceptions to the hearsay exclusion
make objections to such testimony particularly important to the
creation of a record of the trial court’s decision-making process
in either admitting or excluding a given statement. The
complexity and subtlety of the operation of the hearsay rule
and its exceptions make it particularly important that a full
discussion of admissibility be conducted at trial.

State v. Manthey, 711 N.W.2d 498, 504 (Minn. 2006). Accordingly, the supreme court has
expressed reluctance to conclude that the admission of hearsay evidence is plain error. See
id. at 504-05 (concluding it was “not clear” that challenged statements were inadmissible
hearsay).
Under Minn. R. Evid. 801(d)(1)(B), a prior consistent out-of-court statement is not
hearsay if the declarant testifies at trial and is subject to cross-examination concerning the
statement, and the statement is consistent with the declarant’s testimony and helpful to the
trier of fact in evaluating the declarant’s credibility. State v. Nunn, 561 N.W.2d 902, 908
(Minn. 1997). The declarant’s trial testimony and prior out-of-court statement need not be
identical. State v. Bakken, 604 N.W.2d 106, 109 (Minn. App. 2000), review denied (Minn.
Feb. 23, 2000). But the declarant’s credibility must be challenged, and the prior statement
must bolster the declarant’s credibility. Nunn, 561 N.W.2d at 909.
B.D. was the state’s first witness at trial, and she was subject to cross-examination.
After B.D.’s prior out-of-court statements were elicited from her godmother, Cole’s trial

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counsel did not attempt to recall B.D. for cross-examination regarding those statements.
But there is no indication that B.D. was unavailable for further cross-examination.
B.D.’s out-of-court statements to her godmother were consiste nt with her trial
testimony in two respects. First, B.D. testified that she initially lied to her godmother about
the sexual abuse but later admitted that it had occurred. Second, B.D. testified that Cole
had penetrated her anally.
B.D.’s out -of-court statements were also helpful to the jury in evaluating her
credibility. Cole challenged B.D.’s credibility during cross -examination, pointing out
alleged inconsistencies in her statements regarding the abuse. B.D.’s out -of-court
statements to her godmother bolstered B.D.’s credibility by demonstrating a consistent
report regarding the sexual abuse. See Bakken, 604 N.W.2d at 109 (stating that a prior
consistent statement might bolster credibility by p roviding meaningful context or
demonstrating accuracy of memory); State v. Sullivan, 360 N.W.2d 418, 421 (Minn. App.
1985), review denied (Minn. Apr. 12, 1985) ( upholding conviction, in part, because of
consistency in child-victim’s recollections of sexual abuse).
On this record, i t is not clear or obvious that B.D. ’s out-of-court statements to her
godmother were not admissible under Minn. R. Evid. 801(d)(1)(B).
Cole argues that the district court failed to make necessary threshold determinations
before admitting B.D.’s out -of-court statements . Generally, b efore admitting a prior
consistent statement under rule 801(d)(1)(B), a district court must make a threshold
determination that the witness’ s credibility has been challenged, the prior consiste nt
statement would be helpful to the trier of fact in determining the witness’s credibility, and

6
the prior statement and trial testimony are consistent. Bakken, 604 N.W.2d at 109. But
because Cole did not object, the district court was not prompted to ma ke those
determinations. See id. at 108-10 (analyzing district court’s admission of prior consistent
statements following defense objection) . Thus, the issue here is not whether the district
court properly analyzed the admissibility of the challenged sta tements under rule
801(d)(1)(B). Instead, the issue is whether the challenged statements were “clearly or
obviously inadmissible hearsay” such that the district court plainly erred by failing to
exclude them sua sponte. Manthey, 711 N.W.2d at 504. Because B.D.’s out -of-court
statements were not clearly or obviously inadmissible, the district court did not plainly err,
and Cole is not entitled to relief.
II.
Cole contends that the district court abused its discretion by denying his sentencing-
departure motion because the court “failed to consider on the record the reasons for and
against departing” and because he was particularly amenable to probation.
The Minnesota Sentencing Guidelines establish presumptive sentences for criminal
offenses. Min n. Stat. § 244.09, subd. 5 (2018 ). The sentencing guidelines seek to
“maintain uniformity, proportionality, rationality, and predictabi lity in sentencing” of
crimes. Id. “Consequently, departures from the guidelines are discouraged and are
intended to ap ply to a small number of cases.” State v. Solberg , 882 N.W.2d 618, 623
(Minn. 2016). A district court may depart from the presumptive sentence only when there
exist “identifiable, substantial, and compelling circumstances to support ” a departure.
Minn. Sent. Guidelines 2.D.1 (2012).

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Dispositional departures generally focus on the characteristic s of the offender.
Solberg, 882 N.W.2d at 623. “A defendant’ s particular amenability to probation justifies
a district court’ s decision to stay the execution of a presumptively executed sentence.”
State v. Bertsch, 707 N.W.2d 660, 668 (Minn. 2006). A “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 determ ination whether a defendant is particularly suitable to
individualized treatm ent in a probationary setting.” State v. Trog , 323 N.W.2d 28, 31
(Minn. 1982).
Durational departures generally focus on the characteristics of the offense. Solberg,
882 N.W.2d at 623. The general issue that faces a sentencing court in deciding whether to
grant a durational departure is whether the defendant’s conduct was significantly more or
less serious than that typically involved in the commission of the crime in question. State
v. Cox, 343 N.W.2d 641, 643 (Minn. 1984).
We review a district court’ s decision whether to depart from the presumptive
guidelines sentence for an abuse of discretion. Solberg, 882 N.W.2d at 623; State v. Pegel,
795 N. W.2d 251, 253 (Minn. App. 2011) . A district court exercises its discretion by
“deliberately considering circumstances for and against departure.” State v. Mendoza, 638
N.W.2d 480, 483 (Minn. App. 2002), review denied (Minn. Apr. 16, 2002). “[A]s long as
the record shows the sentencing court carefully evaluated all the testimony and information
presented before making a determination,” we will not interfere with its decision to impose
a presumptive sentence. Pegel, 795 N.W.2d at 255 (quotation omitted). A district court is

8
not required to provide an explanation when it considers reasons for departure but imposes
a presumptive sentence. State v. Van Ruler, 378 N.W.2d 77, 80 (Minn. App. 1985).
At the sentencing hearing, the district court asked the parties if they disputed any of
the information in a presentence-investigation report (PSI) that had been prepared for this
case. The parties stated that they did not. The PSI indicated that Cole had a criminal -
history score of zero and recommended a 144-month sentence for the first-degree offense,
a sentence within the presumptive sentencing range. Minn. Sent. Guidelines 4.B (2012).
Cole did not submit a memorandum in support of his departure request. Instead, he
relied on documents, testimony, and oral argument. Cole’s attorney presented an extensive
argument for departure. She addressed the factors set forth in Trog, noting that Cole was
“young,” had “strong community support,” had been respectful in court, and had complied
with his pretrial -release conditions. Cole ’s attorney also presented an argument for a
durational departure, asserting that Cole’s offenses were “significantly less onerous”
because they occurred in the context of a “consensual relationship,” free from violence,
threats, grooming, coercion, and force. The state responded that there were “no mitigating
factors that would justify either durational or dispositional” departure. The state asserted
that Cole was not amenable to probation, arguing that Cole maintained his innocence and
showed no remorse for his crimes.
The district court did not explicitly rule on Cole’s departure motion. Nor did it
explain its implicit denial of that motion. The court simply said that it would “impose the
guideline sentence.” Nonetheless, we are satisfied that the district court adequately
evaluated the relevant information before declining to depart from the presumptive

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sentence. The record indicates that the district court heard oral arguments for and against
departure, considered the PSI, and requested input from the victim and Cole before making
its sentencing decision. Again, the district court is not required to explain its decision to
impose a presumptive sentence. Van Ruler, 378 N.W.2d at 80. We therefore do not view
the district court’s failure to explain its reasoning as an indication that it failed to carefully
evaluate the relevant sentencing information.
As to Cole’s argument that he was particularly amenable to probation, our review is
not de novo. Moreover, the district court was not required to depart even if there had been
substantial and compelling reasons to do so. See State v. Olson, 765 N.W.2d 662, 664-65
(Minn. App. 2009) (“[T]he district court has discretion to impose a downward dispositional
departure if a defendant is particularly amenable to probation, but it is not required to do
so.”).
In sum, we will reverse a district court’s refusal to depart from the presumptive
sentence only in a “rare” case . State v. Kindem , 313 N.W.2d 6, 7 (Minn. 1981). This is
not such a case.
III.
Cole contends that the district court erred by entering judgments of conviction for
both the first- and third-degree criminal-sexual-conduct offenses. The state agrees with
Cole. Nonetheless, we analyze the issue because “it is the responsibility of appellate courts
to decide cases in accordance with law .” State v. Hannuksela, 452 N.W.2d 668, 673 n.7
(Minn. 1990). Whether the district court erred in adjudicating multiple convictions is a

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question of law that we review de novo . State v. Ferguson, 729 N.W.2d 604, 618 (Minn.
App. 2007), review denied (Minn. June 19, 2007).
Following a criminal act, a defendant may be convicted of either the crime charged,
or an included offense, but not b oth. Minn. Stat. § 609.04, subd. 1 (2012 ); see State v.
Wipper, 512 N.W.2d 92, 94 (Minn. 1994) (explaining that the defendant could not be
convicted of both first - and second-degree murder for the same conduct). An included
offense may be “[a] lesser degree of the same crime,” or “ [a] crime necessarily proved if
the crime charged were proved.” Minn. Stat. § 609.04, subd. 1(1), (4). In determining
whether an offense is necessarily proved , a court compares the statutory elements of the
relevant offenses. State v. Coleman , 373 N.W.2d 777, 780 -81 (Minn. 1985). “ If . . . a
person can[not] commit the greater offense, as legally defined, without committing the
lesser offense, as legally defined, the lesser offense is . . . necessarily included within the
greater offense.” Id. at 781 (quotation omitted); see State v. Roden, 384 N.W.2d 456, 457
(Minn. 1986) (“A lesser offense is necessarily included in a greater offense if it is
impossible to commit the latter without also committing the former.”).
For two reasons, in this case, the third-degree criminal sexual conduct offense is a
lesser-included offense of first-degree criminal sexual conduct. First, it is a lesser degree
of the same offense. See State v. Hart, 477 N.W.2d 732, 737 (Minn. App. 1991) (“[T]hird
degree criminal sexual conduct is an included offense of f irst degree criminal sexual
conduct.”), review denied (Minn. Jan. 16, 1992). Second, the third-degree offense was

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necessarily prove d when the first -degree offense was proved. 1 Thus, judgments of
conviction for both first- and third-degree criminal sexual conduct are not permitted in this
case.
We therefore reverse Cole’s third-degree criminal-sexual-conduct conviction and
remand for the district court to vacate that co nviction while leaving the jury’ s finding of
guilt intact. See S tate v. Hallmark , 927 N.W.2d 281, 300 (Minn. 2019) (setting forth
procedure to be followed if a district court erroneously enters judgment of conviction on
an offense and a lesser-included offense).
Affirmed in part, reversed in part, and remanded.

1 As is relevant here, a perpetrator commits first -degree criminal sexual conduct if he
engages in sexual penetration with a victim who is at least 13 years old but less than 16,
and the perpetrator “is more than 48 months older . . . and in a position of authority” over
the victim. Minn. Stat. § 609.342, subd. 1(b) (2012). A perpetrator commits third -degree
criminal sexual conduct if he engages in sexual penetration with a victim who is at least 13
years old but less than 16, and the perpetrator is more than 24 months older than the victim.
Minn. Stat. § 609.344, subd. 1(b) (2012).