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This opinion is nonprecedential except as provided by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
A21-1558

State of Minnesota,
Respondent,

vs.

Cedric Gershone Gibbs,
Appellant.

Filed December 12, 2022
Affirmed in part, reversed in part, and remanded
Smith, Tracy M., Judge

Hennepin County District Court
File No. 27-CR-19-32010

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

Michael O. Freeman, Hennepin County Attorney, Linda M. Freyer, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Davi E. Axelson, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Larson, Presiding Judge; Johnson, Judge; and Smith,
Tracy M., Judge.
NONPRECEDENTIAL OPINION
SMITH, TRACY M., Judge
In this direct appeal from his judgment of conviction for third-degree criminal
sexual conduct, appellant Cedric Gershone Gibbs argues that his conviction must be
reversed and a new trial granted because the district court admitted irrelevant evidence
2
when it permitted the alleged victim to testify regarding how “this assault affected [ her]
life.” In the alternative, Gibbs argues, and respondent State of Minnesota agrees, that he is
entitled to resentencing because the district court erred in calculating his criminal-history
score based on a full custody-status point when, under a 2019 amendment to the Minnesota
Sentencing Guidelines, he should be assigned only a one-half custody-status point.
We conclude that the district court did not abuse its discretion by admitting the
challenged testimony because it was relevant to whether the sexual conduct was
consensual, but it did err by not giving appellant the benefit of the amended custody-status
provision in the sentencing guidelines. Thus, we affirm in part, reverse in part, and remand
for resentencing.
FACTS
In December 2019, the state charged Gibbs with third-degree criminal sexual
conduct in violation of Minnesota Statutes section 609.344, subdivision 1(d) (2018)
(sexual penetration of a person who is “physically helpless”) for sexually assaulting J.R.
J.R. had known Gibbs —who is approximately 20 years older than she—since she was a
child.
At a bench trial, J.R. recounted the incident. She testified that on May 22, 2019,
Gibbs and his brother D.G. met up with J.R., J.R.’s sister T.J., and some friends for a night
of celebrating in downtown Minneapolis. J.R. testified that the night ended at a hotel room,
where J.R. passed out after drinking heavily. According to J.R., she awoke to Gibbs
“rubbing [her] butt” and quickly told Gibbs to stop or she would “chin check him.” J.R.
testified that she then fell back asleep and later awoke to the feeling of something inside
3
her vagina and the sensation of Gibbs wiping her genital area, which felt wet, with a towel.
J.R. said that she did not know what to do and pretended to be asleep. She explained that,
when her sister T.J. returned to the room to go to the bathroom, J.R. ran into the bathroom
and told T.J. that Gibbs had “raped” her. T.J. then called 911, and J.R. confronted Gibbs
before having “a complete panic attack.”
The state concluded its direct examination of J.R. by asking her, “How has this
assault affected your life?” The district court overruled Gibbs’s relevancy objection, and
J.R. answered:
I don’t do crowds anymore. I don’t trust nobody anymore. I
have nightmares. In therapy – I need therapy. I just had a son,
and I can’t even trust his father to watch him because I’m afraid
that if I take my eyes off my baby for a second, something
could happen to him.

And especially with my daughter, like, I can’t have a
relationship right now because I’m afraid that they might try to
hurt my children.

My relationship with a lot of people in the family is kind of – I
shut down. I don’t talk to nobody like that anymore. I try to
stay to myself. I’m in the house. I became a homebody.

For a while, I did – well, I’m not going to say I did drugs. I
experimented to try and numb the pain. It didn’t work, so pretty
much my life has been hell.

I have panic attacks. I have anxiety to the fact – I can’t even go
to Walmart without having headphones. I can’t go in public
without, you know, prepping myself and giving myself a pep
talk. It’s hard. It is. I’m not gonna lie. This has made my life
hell.

Because, to be honest, I never – like I said, I never got an
apology, not once.

4
Following J.R.’s testimony, the state called a series of other witnesses whose
testimony aligned with J.R.’s. The state called J.R.’s sister T.J., the responding officer, the
nurse who performed J.R.’s sexual-assault examination, and the sergeant in charge of the
case. The state also presented the testimony of four employees of the Minnesota Bureau of
Criminal Apprehension (BCA) involved in testing the samples taken from J.R. during the
sexual-assault examination. One of the BCA employees testified that J.R.’s blood alcohol
concentration was 0.03 approximately six hours after the assault and a second BCA
employee testified that J.R.’s perianal and cervical swabs tested positive for a “single-
source male DNA profile that matche[d] Cedric Gibbs.”
The defense asserted that the sexual conduct was consensual. Gibb s called one
witness, his brother D.G. D.G. testified that J.R. was awake and flirting with Gibbs
throughout the evening. D.G. also stated that he left the hotel room briefly to go check on
his car but did not think Gibbs had sufficient time to have sex with J.R. during his absence.
D.G.’s trial testimony differed on certain points from his previous police interview.
Specifically, in his initial police interview, D.G. did not mention that J.R. was flirting and
did not tell the police that Gibbs admitted to having consensual sex with J.R. at the hotel.
The district court found Gibbs guilty, concluding he committed third-degree
criminal sexual conduct by intentionally sexually penetrating the victim with knowledge
or reason to know that she was physically helpless.
On August 25, 2021, the district court sentenced Gibbs to a guidelines sentence of
53 months of imprisonment—a bottom-of -the-box sentence—and 10 years of conditional
release. See Minn. Sent’g Guidelines 4.A (2018). This sentence was based on the C severity
5
level of the offense and a criminal-history score of one, which was based on a custody-
status point of one. Gibbs was assigned this custody-status point because he was on
probation for gross-misdemeanor driving while impaired (DWI) at the time of this sexual
assault.
This appeal follows.
DECISION
I. The district court did not abuse its discretion by admitting into evidence J.R.’s
testimony about how the sexual assault affected her life.

Gibbs argues that the district court abused its discretion by admitting J.R.’s
testimony about how the sexual assault “affected her life” because the evidence was
irrelevant.
We review a district court’s evidentiary ruling concerning the relevancy of evidence
for an abuse of discretion. State v. Ali, 855 N.W.2d 235, 249 (Minn. 2014). Appellate courts
will not reverse an evidentiary ruling unless the appellant shows “both that the district court
abused its discretion in admitting the evidence and that the appellant was there by
prejudiced.” State v. Guzman, 892 N.W.2d 801, 812 (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).
Relevant evidence is generally admissible. Minn. R. Evid. 402. Evidence is relevant
when it has “any tendency to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it would be without the
evidence.” Minn. R. Evid. 401. Relevant evidence “logically tends to prove or disprove a
6
material fact in issue.” State v. Mosley, 853 N.W.2d 789, 797 (Minn. 2014). Evidence that
has even a slight probative value is sufficient to meet the relevancy threshold under rule
401’s liberal approach. See Comm. cmt., Minn. R. Evid. 401. This “minimal relevancy
approach” applies to “any fact that is of consequence” to the disposition of the litigation.
State v. Ture, 632 N.W.2d 621, 631 (Minn. 2001). A fact of consequence is one which
would assist the factfinder even remotely in determining an issue in question. State v.
Schulz, 691 N.W.2d 474, 478 (Minn. 2005).
Gibbs acknowledges that a disputed fact of consequence was whether his sexual
conduct was consensual, but he asserts that J.R.’s testimony on how the assault affected
her life was not probative of the contested fact of consent. He asserts that whether the
“alleged sexual assault made [J.R.] experiment with drugs, think people would hurt her
children, and wear headphones at Walmart did not make it ‘more or less probable’ that J.R.
did not consent to the crime.” We are not persuaded.
Under the “minimal relevancy approach,” J.R.’s testimony makes it more probable
that the sexual penetration by Gibbs was not consensual. See Minn. R. Evid. 401; Ture,
632 N.W.2d at 631. As a result of the sexual encounter, J.R. became fearful, untrusting,
and anxious. This reaction to the event “logically tends to prove” that the sexual contact
was nonconsensual. Mosley, 853 N.W.2d at 797. The district court therefore exercised its
discretion appropriately in ruling that J.R.’s testimony about how the assault affected her
life was admissible.
7
Because we see no abuse of discretion in the district court’s admission of the
evidence, we need not address Gibbs’s argument that he was prejudiced by the evidentiary
ruling. Gibbs’s challenge to his conviction fails.
II. The district court erred by sentencing appellant based on a criminal-history
score of one.

Gibbs also argues , and the state concurs, that he is entitled to resentencing with a
reduced criminal-history score based on an amendment to the sentencing guidelines that
became effective after the date of his offense but before his judgment of conviction was
final. We agree.
Whether a sentence conforms to the requirements of the sentencing guidelines is a
question of law that is reviewed de novo. State v. Williams, 771, N.W.2d 514, 520 (Minn.
2009). A sentence based on an incorrect criminal-history score can be corrected at any
time. State v. Maurstad, 733 N.W.2d 141, 147 (Minn. 2007); see also Minn. R. Crim. P.
27.03, subd. 9 (“The court may at any time correct a sentence not authorized by law.”).
The sentencing guidelines prescribe sentencing ranges that are presumed
appropriate. Minn. Sent’g Guidelines 1.A.6 (2018). The prescribed sentencing range for a
given felony offense is determined by the criminal-history score of an individual and the
offense’s severity level. Minn. Sent’g Guidelines 2.A.1, 2.B (2018). When sentencing
Gibbs, the district court calculated the presumptive range using a criminal-history score of
one. The criminal-history score of one was based on Gibbs’s custody-status point of one.
That custody-status point was assigned under the 2018 Minnesota Sentencing Guidelines
8
based on Gibbs being on probation for gross-misdemeanor DWI at the time he committed
the offense.
In 2019, the Sentencing Guidelines Commission amended the custody-status
provision. See Minn. Sent’g Guidelines 2.B.2 (Supp. 2019). Under the amended provision,
a court may assign only a one-half custody-status point if the person was on probation for
gross-misdemeanor DWI at the time of the offense. Minn. Sent’g Guidelines 2.B.2.a(3)(v)
(Supp. 2019).
When an amendment to the sentencing guidelines takes place after the date of an
offense, a defendant may be entitled to the benefit of the amendment under the amelioration
doctrine. Under that doctrine, an amendment mitigating punishment must be applied to acts
committed prior to its effective date so long as (1) there is no final judgment reached in the
case and (2) the legislature did not intend to abrogate the doctrine. State v. Robinette, 964
N.W.2d 143, 14 7 (Minn. 2021); see also State v. Kirby, 899 N.W.2d 485, 490 (Minn.
2017). The amelioration doctrine applies with respect to the 2019 amendment to the
guidelines’ custody-status provision. See State v. Beganovic, 974 N.W.2d 278, 288 (Minn.
App. 2022), (applying amelioration doctrine with respect to 2019 amendment to Minn.
Sent’g Guidelines 2.B.2.a.3), rev. granted on other grounds (Minn. June 29, 2022).
Because Gibbs’s judgment of conviction was not final when the 2019 amendment took
effect, the amelioration doctrine requires that he be given the benefit of the reduced
custody-status-point provision.
Under the amended provision, Gibbs is correct that his custody-status point is not
one but is rather one- half point. Under our ruling in Beganovic, “[w]hen a defendant’s
9
criminal-history score includes a partial custody-status point, the partial point must be
disregarded when determining the presumptive sentence.” 974 N.W.2d at 281.
Disregarding the partial custody- status point brings Gibbs’s criminal-history score down
to zero. We therefore reverse Gibbs’s sentence and remand to the district court for
resentencing with a criminal-history score of zero.
Affirmed in part, reversed in part, and remanded.