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This opinion is nonprecedential except as provided by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
A22-0991

State of Minnesota,
Respondent,

vs.

Gordy Lee Burkhart,
Appellant.

Filed May 22, 2023
Affirmed
Segal, Chief Judge

Clay County District Court
File No. 14-CR-21-3524

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

Brian J. Melton, Clay County Attorney, Brittany Marie Davila, Assistant County Attorney,
Moorhead, Minnesota (for respondent)

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

Considered and decided by Frisch, Presiding Judge; Segal, Chief Judge; and Jesson,
Judge.
NONPRECEDENTIAL OPINION
SEGAL, Chief Judge
In this direct appeal, appellant argues that his conviction for felony domestic assault
must be reversed because the prosecutor committed plain-error misconduct by eliciting
2
bad-acts evidence without providing notice and by vouching for the complainant’s
credibility during closing arguments. Appellant further argues that the district court abused
its discretion when it denied his motion for a downward durational departure. We affirm.
FACTS
On an evening in October 2021, L.K. was in her apartment in Moorhead when her
neighbor, B.K., knocked on her door. When she opened the door, L.K. observed that B.K.
was “[v]ery distraught, very shaken, crying, and just bruised up on her face.” B.K. asked
L.K. to call 911, which L.K. did. During the 911 call, L.K. told the dispatcher that B.K.
was with her at L.K.’s apartment. L.K. also stated that appellant Gordy Lee Burkhart had
been “beating the crap out of [B.K.]” and that Burkhart had B.K.’s dog. With assistance
from B.K., L.K. provided the dispatcher with Burkhart’s name and information about what
he was wearing, where he had gone, and what B.K.’s dog looked like. B.K. then took the
phone from L.K. and told the dispatcher that Burkhart had been beating her for days and
that she had been trying to call 911 but Burkhart kept taking the phone. She indicated that
Burkhart had assaulted her before and that she had been in her apartment with Burkhart for
three days.
An officer with the Moorhead Police Department responded to the 911 call. While
on his way to the apartment complex, the officer saw an individual matching Burkhart’s
description. The officer lost sight of the individual, but later relocated him and confirmed
it was Burkhart. Burkhart told the officer that he was in the area visiting a friend and had
been getting cigarettes, but was not willing to provide additional information. The officer
then met with B.K., and observed that she “was crying, had a ripped or torn shirt in the
3
front region, . . . [and] swelling and blood on her front facial region.” She identified
Burkhart as the individual who caused her injuries, and stated that Burkhart had hit her
with both a closed and open hand and had choked her multiple times. The officer took
photographs of B.K.’s injuries, and B.K. ultimately went to the hospital. Respondent State
of Minnesota charged Burkhart with two felony counts— domestic assault under Minn.
Stat. § 609.2242, subd. 4 (2020),1 and domestic assault by strangulation under Minn. Stat.
§ 609.2247, subd. 2 (2020).
The case was tried to a jury. Consistent with her prior statement to the officer, B.K.
testified at trial that Burkhart “had hurt [her] by both hitting [her] and holding [her] down
and . . . choking [her].” While B.K. was on the stand, the state had the audio recording of
her prior statement to the officer played for the jury. The prosecutor then asked B.K. if she
had ever provided a statement with a different explanation for her injuries. B.K. said no,
but after the prosecutor asked if she had ever spoken to a defense investigator, she
acknowledged that she told the defense investigator that her dog had caused the injuries.
The prosecutor asked B.K. why she told the investigator that, and B.K. responded:
“Because that’s what I was told to say.” The prosecutor asked who told her to say that,
and she said that “Gordy did, on the phone,” referencing Burkhart. The prosecutor asked
if Burkhart said why he made that request. B.K. then testified that Burkhart had asked her
to say the dog caused her injuries “[s]o that he could get out of jail because his father got

1 The domestic-assault charge was enhanced to a felony because the alleged assault
occurred within ten years of Burkhart being convicted of two or more previous qualified
domestic violence-related offenses.
4
cancer and he didn’t want to be locked up and [have] his dad die.” She claimed that
Burkhart made this request during a phone call while he was in jail. She testified that she
initially agreed to the request, but decided prior to trial that she would instead testify that
Burkhart caused the injuries.
During the state’s closing argument, the prosecutor acknowledged that “credibility
is certainly something that [the jury] will need to weigh” and that B.K. had provided
different explanations for the cause of her injuries. The prosecutor observed that B.K.
“testified [Burkhart] told her to change her story and she—she did. But ultimately, when
the time came where she needed to sit under oath before you, she stood up here and she
told you the truth.” The jury found Burkhart guilty of domestic assault and the lesser-
included offense of fifth-degree assault, but not guilty of domestic assault by strangulation.
Prior to sentencing, Burkhart filed a motion for a downward durational departure.
At the sentencing hearing, the parties agreed that Burkhart’s criminal-history score was
five, resulting in a presumptive sentencing range of between 23 and 32 months. Burkhart
requested a downward durational departure from the presumptive sentence to a sentence of
one year and one day in prison. Burkhart argued that the departure was appropriate because
B.K. did not suffer “substantial bodily harm,” which is the level of harm required for a
third-degree assault conviction. See Minn. Stat. § 609.223, subd. 1 (2020). And third-
degree assault carries that same maximum sentence as Minn. Stat. § 609.2242, subd. 4, the
enhanced domestic-assault offense of which Burkhart was convicted. See id.
Burkhart argued that comparing the injuries in this case to those in a typical felony-
level assault, using thi rd-degree assault as the comparator, was an adequate basis for
5
departure because the injuries in this case did not rise to the level of “substantial bodily
harm,” and because the charge in this case was a felony based on Burkhart’s prior
qualifying convictions, not the severity of the injuries. He noted that if B.K. had suffered
more severe injuries, the charge would still be a felony and would result in the same
presumptive sentence. The district court responded to that argument:
I’m also not going to grant the departure on the basis that . . .
the injuries here were less severe than in a normal or standard
domestic assault. The testimony before the Court at the trial
by the victim was very clear, unequivocal, that she was in an
apartment for days with Mr. Burkhart, that his words grew
more aggressive over that time period, and ultimately resulted
in assaulting her. And to weigh the injury that Mr. Burkhart
inflicted against what other victims might receive in a domestic
assault case, I do not find to be important, relevant, or of any
significance as it relates to the sentence because, Mr. Burkhart,
you committed a domestic assault offense.

The district court denied Burkhart’s motion for a downward durational departure,
explaining:
I want to be clear that I’m looking at this case and looking at
the testimony of the victim. I heard the testimony of the victim,
of her testimony that there were days spent in an apartment,
unable to leave, ongoing violence, that ultimately, she went to
the neighbors because she was so afraid to call 911 herself in
order to get help. . . . There have been no substantial or
compelling reasons presented to the Court to deviate from the
Guidelines.

The district court instead sentenced Burkhart to 32 months in prison—the upper end of the
presumptive guidelines range.

6
DECISION
Burkhart raises two issues on appeal. First, he argues that he is entitled to a new
trial because the prosecutor engaged in misconduct that rises to the level of plain error by
eliciting testimony from B.K. concerning prior bad-acts evidence that was not noticed by
the state and by vouching for B.K.’s credibility during closing arguments. Second, he
argues, in the alternative, that he is entitled to be resentenced because the district court
failed to exercise its discretion in denying his motion for a downward durational departure.
I. Burkhart was not denied his right to a fair trial due to prosecutorial
misconduct.

Regarding his argument that he is entitled to a new trial based on two instances of
alleged prosecutorial misconduct , Burkhart concedes that he did not object to the
challenged conduct at trial. We review claims of unobjected-to prosecutorial misconduct
under a modified plain -error standard, considering whether there is “(1) error, (2) that is
plain, and (3) affects substantial rights.” State v. Ramey, 721 N.W.2d 294, 302 (Minn.
2006). Error is plain if it “contravenes case law, a rule, or a standard of conduct.” Id. If a
defendant establishes that plain-error misconduct occurred, the state then bears the burden
of proving that the misconduct did not affect the defendant’s substantial rights. Id. If these
three elements are satisfied, this court then “assesses whether the error should be addressed
to ensure fairness and the integrity of the judicial proceedings.” Id.
In our analysis, we first address whether the two instances of alleged prosecutorial
misconduct involve plain errors and then consider whether any error affected Burkhart’s
substantial rights.
7
B.K.’s Statement
Burkhart asserts that the state engaged in prosecutorial misconduct by eliciting
testimony from B.K. that Burkhart told her to say that her dog caused her injuries so that
he could get out of jail. Claims of improper testimony by prosecution witnesses are treated
as a form of prosecutorial misconduct because it is the state’s responsibility to prepare its
witnesses to avoid improper testimony. See State v. McNeil, 658 N.W.2d 228, 232 (Minn.
App. 2003) (noting that “the state has an absolute duty to prepare its witnesses to ensure
that they are aware of the limits of permissible testimony”). Burkhart argues that B.K.’s
testimony was improper because it constituted other-acts evidence for which the state
provided no notice of its intent to admit.
Under Minn. R. Evid. 404(b)(1), evidence of another crime, wrong, or act is
generally not admissible to show action in conformity with a person’s character. Such
evidence, however, may be admissible for other purposes, including “to explain a witness’s
prior inconsistent statements.” State v. Scruggs, 822 N.W.2d 631, 643 (Minn. 2012). To
be admissible, however, the following conditions must be met:
(1) the state must give notice of its intent to admit the evidence;
(2) the state must clearly indicate what the evidence will be
offered to prove; (3) there must be clear and convincing
evidence that the defendant participated in the prior act; (4) the
evidence must be relevant and material to the state’s case; and
(5) the probative value of the evidence must not be outweighed
by its potential prejudice to the defendant.

State v. Ross, 732 N.W.2d 274, 282 (Minn. 2007) (quotation omitted) ; see also Minn. R.
Evid. 404(b)(2).
8
The first step in our analysis is to determine whether the challenged testimony
constitutes “[e]vidence of another crime, wrong, or act.” Minn. R. Evid. 404(b)(1). We
conclude that it does. As Burkhart notes, Minnesota law prohibits a person from using or
attempting to use intimidation to dissuade or influence a witness. See Minn. Stat. § 609.498
(2020). Additionally, at Burkhart’s first appearance, the district court granted the state’s
request for a domestic -abuse no-contact order (DANCO) that prohibited Burkhart from
contacting B.K. At a minimum, the challenged testimony is evidence that could be used
to prove that Burkhart violated the DANCO. See Minn. Stat. § 629.75, subd. 2 (2020)
(establishing criminal penalties for DANCO violations). Accordingly, the challenged
testimony is “[e]vidence of another crime, wrong, or act” under Minn. R. Evid. 404(b)(1)
and, since the state failed to give notice of its intent to admit the evidence, the state failed
to satisfy the conditions necessary to admit it for the purpose of explaining B.K.’s prior
inconsistent statements. See Scruggs, 822 N.W.2d at 643. Eliciting this testimony thus
constituted error. Because the law on this issue is settled, we also conclude that Burkhart
has established that the error was plain.
Vouching Statement
Burkhart next argues that the prosecutor committed plain error by vouching for
B.K.’s credibility during the state’s closing argument. Assessing credibility is “strictly the
domain of the jury.” State v. Blanche, 696 N.W.2d 351, 374 (Minn. 2005). Accordingly,
a prosecutor may not “vouch for the veracity of any particular evidence.” State v.
McArthur, 730 N.W.2d 44, 53 (Minn. 2007). “[ V]ouching occurs when the government
implies a guarantee of a witness’ s truthfulness, refers to facts outside the record, or
9
expresses a personal opinion as to a witness’s credibility.” State v. Patterson, 577 N.W.2d
494, 497 (Minn. 1998) (quotation omitted). A prosecutor may “argue that the state’s
witnesses were worthy of credibility ” but “may not express a personal opinion about the
witnesses’ credibility.” State v. Yang , 627 N.W.2d 666, 679 (Minn. App. 2001), rev.
denied (Minn. July 24, 2001).
The prosecutor here, during closing argument, acknowledged that B.K.’s credibility
was an issue for the jury. But while attempting to explain B.K.’s inconsistent statements
about the cause of her injuries, the prosecutor argued to the jury that “ultimately, when the
time came where [B.K.] needed to sit under oath before you, she stood up here and she told
you the truth.” In State v. Hobbs, this court determined that a prosecutor committed
misconduct when the prosecutor told the jury during closing arguments that a witness “told
you the truth.” 713 N.W.2d 884, 889 (Minn. App. 2006), vacated in part (Minn. Dec. 12,
2006).
2 Here too, the prosecutor told the jury that a witness “told you the truth,” and we
agree that this statement constitutes improper vouching. In addition, because the law on
this question is also clearly established, we conclude that Burkhart has established that the
error was plain.
Effect on Substantial Rights
Having concluded that Burkhart established that both of the cited instances involve
plain error, we must next address the question of whether the state has met its burden of

2 Specifically, the Minnesota Supreme Court , in an order, vacated part II of this court’s
decision in Hobbs, which involved an unrelated sentencing issue. The supreme court did
not review or in any way modify this court’s analysis and decision relating to the
prosecutorial-misconduct issue.
10
demonstrating that the misconduct did not affect Burkhart’s substantial rights. When
deciding whether the state has met this burden, we consider “(1) the strength of the
evidence against the defendant; (2) the pervasiveness of the improper conduct; and
(3) whether the defendant had an opportunity (or made efforts) to rebut the prosecutor’s
improper suggestions.” State v. Hill, 801 N.W.2d 646, 654-55 (Minn. 2011).
The state argues that the misconduct did not affect Burkhart’s substantial rights
because the misconduct was not pervasive, the prosecutor stressed that credibility
determinations were ultimately up to the jury, and the state had ample evidence to support
its case. Burkhart “acknowledges that the misconduct in this case appeared on only a
handful of transcript pages” and was therefore not pervasive, but argues that it nonetheless
affected his substantial rights because credibility was a central issue in the case and the
misconduct was “difficult for the defense to counter.”
Burkhart is correct that B.K.’s credibility was a central issue in this case because no
other witnesses were present when the assault allegedly took place. L.K. testified that she
heard yelling and screaming coming from B.K.’s apartment on the night of the assault, but
did not see the incident because she was inside her own apartment. The case thus hinged
on whether the jury believed B.K.’s testimony that she was assaulted by Burkhart. But
even though the two errors may have helped bolster B.K.’s credibility, we are nevertheless
persuaded that the state has satisfied its burden of demonstrating that the errors did not
interfere with Burkhart’s substantial rights.
We reach this conclusion for the following reasons. First, the state’s case contained
not just the testimony of B.K., but also a significant amount of corroborating evidence. In
11
addition to B.K.’s testimony, the jury heard testimony from both L.K. and the responding
officer regarding B.K.’s demeanor on the night of the assault, the audio recording of the
statement B.K. made to the officer on the night of the assault, and the 911 call. L.K. placed
the 911 call and initially answered the dispatcher’s questions with assistance from B.K.,
but B.K. ultimately took the phone and provided a description of what happened. The state
also submitted photographs of B.K.’s injuries into evidence.
Second, the defense was aware before trial not only that B.K.’s credibility was at
issue, but also that B.K. had made inconsistent statements about the cause of her injuries
because she had told a defense investigator that her dog had caused the injuries. The
defense was therefore aware of the statement and in fact relied on the argument that the
dog actually caused the injuries during its own closing argument. The defense was also
able to counter B.K.’s assertion that Burkhart asked her to change her story by observing
that jail calls are recorded and that no such recording was put into eviden ce, thereby
suggesting to the jury that there was no such call.
Third, the jury acquitted Burkhart of domestic assault by strangulation despite
B.K.’s testimony that he had “choked” her. This further persuades us that the jury
thoroughly reviewed the evidence and evaluated B.K.’s credibility, and that there is no
reasonable likelihood that the verdict was influenced by the misconduct.
Finally, we note that the impact of the improper vouching was at least mitigated by
the fact that the prosecutor stressed during closing arguments that it was up to the jury to
evaluate credibility.
12
We thus conclude that Burkhart was not denied his right to a fair trial due to the
errors, and we affirm his conviction of felony-level domestic assault. In doing so, however,
we caution that plain errors, like vouching for a witness’s credibility, should not have
occurred and are not to be repeated.
II. The district court did not abuse its discretion in denying Burkhart’s motion for
a downward durational departure.

The Minnesota Sentencing Guidelines establish presumptive sentences for felony
offenses in an effort “to maintain uniformity, proportionality, rationality, and predictability
in sentencing.” Minn. Stat. § 244.09, subd. 5 (2020). A district court may depart from
these guidelines only when there are “identifiable, substantial, and compelling
circumstances to support a departure.” Minn. Sent’g Guidelines 2.D.1 (Supp. 2021); see
also State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981). “[D]epartures from the guid elines
are discouraged and are intended to apply to a small number of cases.” State v. Solberg,
882 N.W.2d 618, 623 (Minn. 2016). Even if substantial and compelling circumstances
exist, a district court is not required to depart from the guidelines. State v. Wall, 343
N.W.2d 22, 25 (Minn. 1984).
A downward durational departure is a sentence that is shorter than the presumptive
range provided by the sentencing guidelines. Minn. Sent’g Guidelines 1.B.5.b ( Supp.
2021). “A downward durational departure is justified only if the defendant’s conduct was
significantly less serious than that typically involved in the commission of the offense.”
Solberg, 882 N.W.2d at 624 (quotation omitted). When a defendant’s actions fit squarely
13
within the conduct prohibited by the statute, the offense is not significantly less serious
than typical. Id. at 626-27; see also State v. Rund, 896 N.W.2d 527, 534 (Minn. 2017).
We review a district court’s refusal to depart from the sentencing guidelines for
abuse of discretion. State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996). An appellate
court “may not interfere with the [district] court’s exercise of discretion” in imposing a
presumptive sentence “as long as the record shows the [district] court carefully evaluated
all the testimony and information presented before making a determination.” State v. Van
Ruler, 378 N.W.2d 77, 80-81 (Minn. App. 1985). Though a district court is required to
give reasons for granting a departure, it need not explain its decision not to depart, so long
as it has considered reasons for departure but elects to impose the presumptive sentence.
State v. Curtiss, 353 N.W.2d 262, 263 (Minn. App. 1984).
Burkhart argues that the district court abused its discretion in denying his motion
for a downward durational departure because the statement made by the district court—
that a comparison of the injuries suffered by B.K. to those in other domestic-assault cases
was not “important, relevant, or of any significance . . . to the sentence”—demonstrates
that the district court failed to consider the grounds for his motion. Burkhart maintains that
the sentence must therefore be reversed and the matter remanded for resentencing.
Burkhart cites Curtiss in support of his contention. In Curtiss, we reversed a district
court’s decision not to depart from the sentencing guidelines when the district court stated
it found “no justifiable reason to deviate,” when the record contained “significant” reasons
supporting departure— mainly that the defendant, convicted of first- degree burglary, had
entered only the breezeway of a home to take a case of beer with no further intrusion. Id.
14
We held that, because the district court appeared to consider no factors in support of or
against departure, it had failed to exercise its discretion in considering the defendant’s
departure motion. Id. at 264. We therefore remanded the matter to the district court to
reconsider the departure motion. Id. But Curtiss presents quite a different scenario from
this case.
Here, the district court cited several offense-related reasons for sentencing Burkhart
within the presumptive range. The district court noted that Burkhart kept B.K. confined in
her own apartment for days, that Burkhart’s words grew more aggressive over that time,
that the particular incident was spurred by Burkhart’s suspicion of B.K.’s infidelity, and
that he ultimately assaulted her because of that suspicion. The record thus indicates that
the district court did consider the circumstances of this offense and concluded that they did
not warrant a downward departure. Curtiss is therefore distinguishable.
We are also not persuaded by Burkhart’s argument that the district court erred when
it declined to compare the severity of B.K.’s injuries to those of a “typical” domestic-
assault victim. The offense of which Burkhart was convicted carries the same maximum
sentence as a third-degree assault. Compare Minn. Stat. § 609.223, subd. 1 (establishing
the offense of third- degree assault based on substantial bodily harm), with Minn. Stat.
§ 609.2242, subd. 4 (domestic-assault enhancement provision). Burkhart argued to the
district court that, because third-degree assault requires proof of substantial bodily harm,
and B.K. did not suffer that level of injury, this was a less serious offense that warranted a
15
downward durational departure. 3 See Minn. Stat. § 609.02, subd. 7a (2020) (defining
substantial bodily harm). The district court’s statement that comparing severity of injury
was not necessarily relevant was in response to this argument by Burkhart.
We discern no abuse of discretion by the district court in making this statement.
First, as noted above, the district court made its decision based on other relevant factors.
Second, because this case was enhanced to a felony by reason of Burkhart’s prior
convictions for qualified domestic violence-related offenses, not the severity of the bodily
harm caused, it was well within the district court’s discretion to consider the severity of
B.K.’s physical injuries as less relevant.
In sum, the district court considered relevant factors in denying Burkhart’s motion
for a downward durational departure and we discern no abuse of discretion in sentencing
Burkhart to a presumptive sentence under the sentencing guidelines.
Affirmed.

3 Burkhart was convicted of and sentenced under Minn. Stat. § 609.2242, subd. 4, which
provides for the enhancement of a misdemeanor-level assault if the offender has been
convicted, within the prior ten years, “of two or more previous qualified domestic violence-
related offense convictions.” Because of Burkhart’s prior qualifying convictions, the state
only had to prove “bodily harm,” not “substantial bodily harm,” the severity of injury for
a misdemeanor-level domestic assault, to establish that Burkhart committed an offense
punishable as a felony. See Minn. Stat. § 609.2242, subds. 1, 4 (2020).