State of Minnesota, Respondent,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A20-0858

State of Minnesota,
Respondent,

vs.

Buomkuoth Gatluak Puot Well,
Appellant.

Filed May 24, 2021
Affirmed
Kirk, Judge*

Blue Earth County District Court
File No. 07-CR-19-2279

Keith Ellison, Attorney General, Edwin W. Stockmeyer, Assistant Attorney General,
St. Paul, Minnesota; and

Patrick R. McDermott, Blue Earth County Attorney, Mankato, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Sara L. Martin, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Jesson, Presiding Judge; Reyes, Judge; and Kirk, Judge.

* Retired judge of the Minnesota Court of Appeals, serving by ap pointment pursuant to
Minn. Const. art. VI, § 10.

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NONPRECEDENTIAL OPINION
KIRK, Judge
Appellant challenges his conviction of first-degree criminal sexual conduct, arguing
that (1) the act alleged does not amount to first -degree criminal sexual conduct; (2) the
district court improperly limited his cross-examination of the state’s DNA witness; and
(3) the district cou rt abused its discretion by imposing the presumptive sentence. We
affirm.
FACTS
The state charged appellant B uomkuoth Gatl uak Puot Well with first -degree
criminal sexual conduct, attempted first -degree criminal sexual conduct, and indecent
exposure following allegations that he touched his penis to a six-year-old girl’s lips.
At Well’s court trial, R.B. testified that her six-year-old sister, J.B., lived with her.
Well lived in the same apartment building. On May 26, 2019, Well was at R .B.’s
apartment. While R.B. was preparing dinner, J.B. c ame into the kitchen and told her that
Well had hurt her. R.B. asked for details, and J.B. stated that Well got mad at her and “put
his potty spot on her mouth—on her lips.” R.B. told Well to leave. Before leaving, Well
said “I need to apologize.” R.B. called 911.
J.B. testified that she had been watching television in the living room on that day
when Well put “his private part on [her] lips.” A forensic interviewer testified that during
an interview, J.B. stated that Well’s “penis touched her lips.”
An officer testified that R.B. conducted a control led telephone call with Well.
During the conversation, Well admitted that he had been at R.B.’s apartment and stated
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that he had been upset with J.B. because she had taken a shower and did n ot dry her hair.
He also stated that J.B. was walking around “like som e hot thing in front of him.” The
next day, officers went to Well’s re sidence. Well denied ever being in R.B.’s apartment
and claimed to have last seen her a couple of weeks prior to May 26. Well declined to
consent to a DNA swab, but officers had obtained a warrant to acquire one.
A forensic scientist at the Bureau of Criminal Apprehension testified that a mixture
of three or more individuals’ DNA were found on a swab from J.B.’s lips. Well and J.B.
could not be excluded as being contributors to the major mixture, which was a two-person
mixture, although 99.9999999996% of the general population was excluded.
On cross-examination, the scientist testified that Well’s DNA could have gotten on
J.B.’s lips by a ny part of his body touching her lips. When asked if it was possible “that
he could have touched her hand, and her hand could have touch[ed] her lips and transferred
his DNA from him to her hand to her lips,” she replied that secondary transfer in this case
was unlikely. Well’s attorney asked, “You are aware of cases where secondary DNA
transfer has led to people being accused of crimes t hey could not have committed?” The
prosecutor objected and the distric t court sustained the objection, stating , “It has nothing
to do with this case.” On redirect, the scientist explained that secondary transfer was
unlikely because “a significant amount of DNA [was] recovered.”
Well did not testify. The district court found Well guilty of first -degree criminal
sexual conduct and indecent exposure, but not guilty of attempted first -degree criminal
sexual conduct.
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Well moved for a downward dispositional departure, which the district court denied
after concluding that Well failed to cooperate “in doing anything,” and was theref ore not
amenable to probation. The district court sentenced Well to the presumptive s entence of
168 months in prison. This appeal followed.
DECISION
Sufficiency of the evidence
Well first argues that he could not be convicted of first -degree criminal sexual
conduct for the act he allegedly committed. Determining whether the evidence is sufficient
to prove that Well’s conduct violated the first-degree criminal-sexual-conduct statute
requires this court to apply the law to the facts. See State v. Dorn, 887 N.W.2d 826, 830
(Minn. 2016) (stating that application of law requires evaluation of the sufficiency of the
evidence).
When reviewing a sufficienc y-of-the-evidence challenge, this court examines the
record “to determine whether the evidence and reasonable inferences drawn therefrom,
viewed in a light most favorable to the verdict, were sufficient to allow the [fact-finder] to
reach its verdict.” State v. Hohenwald , 815 N.W.2d 823, 832 (Minn. 2012) (quotation
omitted). In conducting this review, this court assumes that “the fact[-]finder believed the
state’s witnesses and disbelieved any evidence to the contrary.” Id. This court will not
“disturb a verdict if the [fact-finder], acting with due regard for the presumption of
innocence and for the necessity of overcoming it by proof beyond a reasonable doubt, could
reasonably conclude that the defendant was proven guilty of the offense charged.” State v.
Flowers, 788 N.W.2d 120, 133 (Minn. 2010) (quotation omitted).
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The district court found Well guilty of first -degree criminal sexual conduct, in
violation Minn. Stat. § 609.342, subd. 1(a) (2018). The state had to prove that Well
engaged in “sexual penetration” with a complainant under 13 years of age and he is more
than 36 months older than her. See Minn. Stat. § 609.342, subd. 1(a). “Sexual penetration”
means, among other things, “fellatio.” Minn. Stat. § 609.341, subd. 12(1) (2018). “Fellatio
constitutes sexual penetration if there is any contact between the penis of one person and
the mouth, tongue or lips of another person.” State v. Ptacek, 766 N.W.2d 355, 359 (Minn.
App. 2009), review denied (Minn. Aug. 26, 2009) (concluding district court did not err in
instructing jury with this definition of fellatio).
J.B. testified that Well touched his penis t o her lips. R.B.’s and the forensic
interviewer’s testimonies corroborated J.B.’s claim. The district court, acting as the fact-
finder, stated that it believed J.B.’s testimony that Well put his “private parts” on her lips .
Thus, the evidence is sufficient to support Well’s conviction.
But Well a rgues that the statute is reasonably susceptible to more than one
interpretation because the word “fellatio” has several meanings . He argues that with no
clear definition, he did not have fair warning that he would be charged with first -degree
criminal sexual conduct for the act he committed . C aselaw, however, defines fellatio to
include the act Well comm itted, and this court is “ bound by supreme court precedent and
the published o pinions of the court of appeals.” State v. M.L.A. , 785 N.W2d 763, 767
(Minn. App. 2010), review denied (Minn. Sept. 21, 2010).

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Evidentiary ruling
Well argues that the district court denied him his due-process right to present a
complete defense by limiting his cross -examination of the DNA witness. Evidentiary
rulings rest within the sound discretion of the district court and will not be reversed absent
a clear abuse of discretion. State v. Ali, 855 N.W.2d 235, 249 (Minn. 2014). Even when,
as here, an appellant claims that the district court’s exclusion of evidence denied him his
“constitutional right to a meaningful opportunity to present a complete defense,” this court
still reviews for an abuse of discretion. State v. Zumberge, 888 N.W.2d 688, 694 (Minn.
2017). “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. Hallmark , 927
N.W.2d 281, 291 (Minn. 2019) (quotation omitted).
When the erroneous exclusion of evidence deprives a defendant of a constitutional
right, this court then reviews whether the exclusion wa s harmless beyond a reasonable
doubt. State v. Munt, 831 N.W.2d 569, 583 (Minn. 2013). To conclude that an error was
harmless beyond a reasonable doubt, we must be satisfied that the fact -finder would have
reached the same verdict if the evidence had been admitted. State v. Post, 512 N.W.2d 99,
102 (Minn. 1994). The state bears the burden of proving that the error was harmless. State
v. Hannon, 703 N.W.2d 498, 505 (Minn. 2005).
Well claims that, because he denied committing the offense, he had to expla in how
his DNA was found on the victim’s lips . Well asserts that if he had been allowed to
question the witness about cases in which transfer occurred, the outcome would have been
different.
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Due process requires that every defendant must have “a meaningf ul opportunity to
present a complete defense.” State v. Richards , 495 N.W.2d 187, 191 (Minn. 1992)
(quotation omitted). But this right is “subject to the limitations imposed by the rules of
evidence.” State v. Mosley , 853 N.W.2d 789, 798 (Minn. 2014). “Evidence must be
relevant to be admissible, and there is no constitutional right to present irrelevant
evidence.” State v. Thiel, 846 N.W.2d 605, 615 (Minn. App. 2014), review denied (Minn.
Aug. 5, 2014). Evidence is relevant if it makes the truth of an y material fact more or less
probable. Minn. R. Evid. 401.
Here, the district court ruled that evidence regarding “cases where secondary DNA
transfer has led to people being accused of crimes they could not have committed” was not
relevant to the case. But Well claims that he could explain, by way of secondary transfer,
how his DNA was found on the victim’s lips. He asked the scientist if it was possible “that
he could have touched [the victim’s] hand, and her hand could have touched her lips and
transferred his DNA from him to her hand to her lips.” The scientist stated that it was
possible, bu t unlikely in this case because “there was [a] significant amount of DNA
recovered.” Thus, the evidence showed that it was unlikely that secondary transfer led to
Well’s DNA being on the victim’s lips. As the district court determined, the evidence was
irrelevant to the issue of DNA in this matter.
Further, as the state points out, the district court was aware of and considered
secondary transfer. In its findings of fact and order, the district court stated that while it
was “possible” that Well’s DNA was on J.B.’s lips after any part of his body touched her
lips, or any part of his body touched J.B.’s hands and her hands touched her lips, “ the
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presence of his DNA on [J.B.]’s lips is nonetheless consistent with [her] testimony that
[Well] put his penis on her lip s.” Thus, even if the district court abused its discretion by
prohibiting Well’s questioning on secondary transfer in other cases, the error was harmless
because excluding the evidence did not affect the verdict.
Sentence
The district court imposed the presumptive sentence, denying Well’s motion for a
dispositional departure.
Well now claims that the district court committed plain error by not considering a
downward durational departure sua sponte. He claims that this case involved conduct that
was significantly less serious than the type of conduct normally observed in committing
this type of crime.
Failing to raise this sua sponte on this record did not constitute plain error by the
district court. The crime committed was first-degree criminal sexual conduct of a young
child, and there was nothing to suggest it was such an extraordinary case that th e district
court should have, on its own initiative, co nsidered a durational departure. And because
Well did not move the district court to consider a durational departure, he has forfeited this
issue on appeal. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (stating that only
those issues presented and considered by the district court may be considered on appeal).
Affirmed.