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This opinion is nonprecedential except as provided by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
A22-1154

State of Minnesota,
Respondent,

vs.

Carlos Rosas,
Appellant.

Filed July 24, 2023
Affirmed
Johnson, Judge

Polk County District Court
File No. 60-CR-21-538

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

Greg Widseth, Polk County Attorney, Scott A. Buhler, Assistant County Attorney,
Crookston, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, St. Paul, Minnesota; and

Paul J. Maravigli, Special Assistant Public Defender, Minneapolis, Minnesota (for
appellant)

Considered and decided by Gaïtas, Presiding Judge; Johnson, Judge; and Larson,
Judge.
NONPRECEDENTIAL OPINION
JOHNSON, Judge
A Polk County jury found Carlos Rosas guilty of first -degree burglary based on
evidence that he entered the home of a woman who recently had ended a long-term
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relationship with him and committed domestic assault by making a threat that caus ed her
to fear immediate death. We conclude that the evidence is sufficient to support the jury’s
verdict and that the district court did not plainly err by admitting hearsay evidence.
Therefore, we affirm.
FACTS
Rosas was in a long-term relationship with J.R. for more than ten years, during
which time they had two young children together. In early 2021, J.R. ended the relationship
but attempted to encourage and coordinate visits between Rosas and the children, who then
were nine and four years old.
On March 29, 2021, the Polk County District Court issued a pre-trial domestic-
abuse no-contact order (DANCO) in a pending criminal case. The DANCO prohibited
Rosas from, among other things, contacting J.R. or being present at her residence, “[e]xcept
with a police escort to recover prescription medications, personal clothing and toiletries.”
Nine days later, on April 7, 2021, Rosas went to J.R.’s residence and entered her
home through a locked door, apparently by using a key. J.R. was at home, upstairs with
the two children. Rosas walked up the stairs. J.R. told Rosas “that he couldn’t be there,”
that he “need[ed] to leave,” and that she “was going to call the cops.” Rosas responded by
saying, “If I’m going to jail, it’s because I’m going to kill you.”
J.R. called police, who arrived approximately five minutes later. Rosas no longer
was at J.R.’s residence when police arrived, but an officer found him later that day and
arrested him. In a custodial interview , Rosas told the officer that he was aware of the
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DANCO and understood that he was forbidden from having contact with J.R. but that he
went to her home to retrieve identification cards so that he could seek employment.
In an amended complaint, the state charged Rosas with four offenses: (1) first-
degree burglary by entering a building without consent and assaulting a person inside the
building, in violation of Minn. Stat. § 609.582, subd. 1(c) (2020); (2) first-degree burglary
by entering without consent a building that is an occupied dwelling, in violation of Minn.
Stat. § 609.582, subd. 1(a) (2020); (3) violati on of a DANCO, in violation of Minn. Stat.
§ 629.75, subd. 2(b) (2020); and (4) domestic assault by committing an act with intent to
cause fear of immediate bodily harm or death, in violation of Minn. Stat. § 609.2242,
subd. 1(1) (2020).
The case was tried to a jury on two days in March 2022. The state called three
witnesses: J.R. and two police officers. Rosas did not testify and did not call any other
witnesses or introduce any exhibits. The jury found him guilty of all four charges. The
district court imposed a sentence of 79 months of imprisonment on count 1 and concurrent
jail sentences of 90 days each on counts 3 and 4. Rosas appeals.
DECISION
I. Sufficiency of the Evidence
Rosas first argues that the evidence is insufficient to prove beyond a reasonable
doubt that he committed the offense of first-degree burglary by entering a building without
consent and assaulting a person inside the building.
In analyzing an argument that the evidence is insufficient to support a conviction,
this court ordinarily undertakes “a painstaking analysis of the record to determine whether
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the evidence, when viewed in the light most favorable to the conviction, was sufficient.”
State v. Ortega, 813 N.W.2d 86, 100 (Minn. 2012) (quotation omitted). We assume that
“the jury believed the state’s witnesses and disbelieved any evidence to the contrary.” State
v. Caldwell, 803 N.W.2d 373, 384 (Minn. 2011) (quotation omitted). We will not overturn
a verdict if the jury, “acting with due regard for the presumption of innocence and the
requirement of proof beyond a reasonable doubt, could reasonably conclude that the
defendant was guilty of the charged offense.” Ortega, 813 N.W.2d at 100.
The statute setting forth the offense charged in count 1 required the state to prove
that Rosas entered J.R.’s home without consent and “assault[ed] a person within the
building.” See Minn. Stat. § 609.582, subd. 1(c). The state sought to prove that Rosas
committed the predicate assault by committing the domestic-assault offense alleged in
count 4. The statute setting forth the offense charged in count 4 required the state to prove
that Rosas committed an act against a family or household member “with intent to cause
fear in another of immediate bodily harm or death.” See Minn. Stat. § 609.2242, subd. 1(1).
As stated above, the jury found Rosas guilty on both count 1 and count 4.
Rosas contends that the evidence is insufficient to prove that he committed the
offenses charged in both count 1 and count 4 on the ground that his statement to J.R. does
not show that he intended to threaten her with immediate death but, rather, with death at
some time in the future. He explains that his statement to J.R. was a “hypothetical”
statement about what he would do if he were to go to jail and, thus, was a threat that “was
conditioned on whether or not [he] was going to jail.” He also asserts, “Any threats of
future harm, or harm conditioned on some act or event, do not fall under the [domestic -
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assault-by-causing-fear] statute.” At oral argument, Rosas’s appellate attorney argued
further that Rosas’s statement should have been charged under the statute prohibiting
threats of violence, Minn. Stat. § 609.713, subd. 1 (2020), which the supreme court has
held requires a threat “to commit a future crime of violence,” State v. Murphy, 545 N.W.2d
909, 916 (Minn. 1996), and that the threats- of-violence statute is the only statute that
criminalizes his threat.
Neither party has cited any caselaw that limits the meaning of the word
“immediate,” as used in the domestic-assault statute. Lay dictionaries define the word to
mean “[o]ccurring at once” or “[o]f or near the present time ,” The American Heritage
Dictionary of the English Language 878 (5th ed. 2018), and “occurring or accomplished
without delay; instant,” The Random House Dictionary of the English Language 956 (2d
ed. 1987). Given those meanings, Rosas’s statement to J.R. about the possibility of killing
her is sufficient to prove that the threatened killing would occur immediately. Rosas’s
statement suggests that, if J.R. were to call the police in Rosas’s presence, Rosas would
respond by killing J.R., before being apprehended and taken to jail. In that scenario,
Rosas’s killing of J.R. would be close enough in time to his threat to be considered
“immediate” and would not be conditioned on his first going to jail.
To determine whether Rosas had the requisite intent to cause J.R. to fear immediate
death, we must rely on circumstantial evidence. If a conviction depends on circumstantial
evidence, we apply a heightened standard of review with a two-step analysis. State v.
Moore, 846 N.W.2d 83, 88 (Minn. 2014). “The first step is to identify the circumstances
proved.” Id. “In identifying the circumstances proved, we assume that the jury resolved
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any factual disputes in a manner that is consistent with the . . . verdict.” Id. The second
step is to “examine independently the reasonableness of [the] inferences that might be
drawn from the circumstances proved” and “determine whether the circumstances proved
are consistent with guilt and inconsistent with any rational hypothesis except that of guilt.”
Id. (alteration in original) (quotations omitted). At the second step, we do not give
deference to the jury’s verdict. Loving v. State, 891 N.W.2d 638, 643 (Minn. 2017). A
defendant’s intent typically is proved by circumstantial evidence. State v. McAllister, 862
N.W.2d 49, 53 (Min n. 2015). Accordingly, we apply the heightened circumstantial-
evidence standard of review to the evidence concerning Rosas’s “intent to cause fear in
another of immediate bodily harm or death.” See Minn. Stat. § 609.2242, subd. 1(1); see
also State v. Harris, 895 N.W.2d, 592, 598-601 (Minn. 2017); Moore, 846 N.W.2d at 88.
We first identify the relevant circumstances proved, which are as follows. On
March 29, 2021, a court issued a DANCO that prohibited Rosas from having contact with
J.R. and from being present at her residence. Rosas was aware of the DANCO and
understood its terms. Nine days later, on April 7, 2021, while J.R. was at home, Rosas
went to her place of residence and entered her home. J.R. told Rosas that he was not
allowed to be there, that he must leave, and that she “was going to call the cops.” Rosas
responded by saying, “If I’m going to jail, it’s because I’m going to kill you.” When asked
how she felt when Rosas made that statement, J.R. testified, “Scared, fear for my life. Like
I don’t want to die.”
The circumstances proved support a rational inference that Rosas intended to cause
J.R. fear of immediate death by telling her, in essence, that if she called police, he would
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kill her. Rosas had a motive for causing her fear : to persuade her to not call the police,
who likely would arrest him for violating the DANCO and likely would take him to jail.
We next consider whether there are rational inferences from the circumstances
proved that are inconsistent with guilt in that they support an alternative hypothesis that
Rosas did not intend to cause J.R. fear of immediate death. See Harris, 895 N.W.2d at
600-01. We struggle to find an alternative hypothesis in Rosas’s brief. He suggests that
his threat “was a warning of harm if he thought he was going to jail.” He also asserts, “It
is just as reasonable to view the alleged threat . . . as idle, meant to convey Mr. Rosas’s
desire not to go to jail.” Rosas’s alternative hypotheses are not rational because they are
inconsistent with his statement that he might “kill” J.R. In addition, Rosas’s alternative
hypotheses are inconsistent with the circumstantial evidence that J.R. feared for her life.
Rosas’s threat can reasonably be interpreted only as a threat that was intended to cause J.R.
to fear that, if she called the police to report Rosas’s violation of the DANCO, he would
kill her.
Accordingly, we conclude that the circumstances proved are inconsistent with any
rational hypothesis except that of guilt. This conclusion is consistent with our conclusion
in a similar case in which the defendant threatened another person by saying, “If I’m going
to jail, I’m going to f— ing kill you.” State v. Boyd, No. A11-1951, 2012 WL 6097119, at
*1 (Minn. App. Dec. 10, 2012). We concluded in that case that the circumstantial evidence
was sufficient to prove the defendant’s intent to cause another person to fear immediate
bodily harm or death. Id. at *7.
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Thus, the evidence is sufficient to support the jury’s verdicts on both count 1 and
count 4.
II. Hearsay Evidence
Rosas also argues that the district court erred by admitting hearsay evidence.
During the direct examination of J.R., she testified that, after Rosas walked up the
stairs to the second floor of her home, she told him to leave and that she was going to call
police. The prosecutor asked her whether Rosas said anything to her in response. J.R.
responded, “That he wanted to see the girls.” When the prosecutor asked a similar question
about what Rosas said in response to J.R.’s statement that she would call police, J.R.
answered, “I don’t remember.” When the prosecutor asked J.R. what she told the police
officer who responded to her call, J.R. initially did not answer. The prosecutor established
that J.R. did not want to testify but had been served with a subpoena. Eventually the
prosecutor was able to elicit testimony from J.R. that she told the responding police officer,
Officer Bannert, that Rosas said, “If I’m going to jail, it’s because I’m going to kill you.”
J.R. also testified that Rosas said those words to her. In addition, Officer Bannert testified
about his interactions with J.R. when he responded to her call, including J.R.’s statement
that Rosas threatened her.
Rosas challenges the district court’s admission of three statements: (1) J.R.’s
testimony about Rosas’s threatening statement to her, (2) J.R.’s testimony about her
statement to Officer Bannert about Rosas’s threatening statement to her, and (3) Officer
Bannert’s testimony about J.R.’s statement to him about Rosas’s threatening statement to
J.R.
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“‘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). A hearsay statement generally is inadmissible, unless it fits into an exception
to the hearsay rule. Minn. R. Evid. 802, 803, 804. In addition, some out-of -court
statements are deemed to be “not hearsay” and, thus, not subject to the general rule of
exclusion. Minn. R. Evid. 801(d).
Rosas concedes that his trial attorney did not make hearsay objections to the
statements he challenges on appeal. Accordingly, we review only for plain error. See
Minn. R. Crim. P. 31.02. Under the plain-error test, an appellant is entitled to relief on an
issue for which no objection was made at trial only if (1) there is an error, (2) the error is
plain, and (3) the error affects the appellant’s substantial rights. State v. Griller , 583
N.W.2d 736, 740 (Minn. 1998). If these three requirements are satisfied, the appellant also
must satisfy a fourth requirement, that the error “seriously affects the fairness and integrity
of the judicial proceedings.” State v. Little, 851 N.W.2d 878, 884 (Minn. 2014). An error
is “plain if it is ‘clear’ or ‘obvious,’ which is typically established ‘if the error contravenes
case law, a rule, or standard of conduct.’” State v. Webster, 894 N.W.2d 782, 787 (Minn.
2017) (quoting State v. Ramey, 721 N.W.2d 294, 302 (Minn. 2006)).
The plain-error rule applies with special force to an argument that evidence is
inadmissible hearsay. The supreme court has explained the rationale for that approach as
follows:
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
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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). The supreme court concluded in
Manthey that the statements at issue were not “clearly or obviously inadmissible hearsay”
because, “[i]n the absence of an objection, the state was not given the opportunity to
establish that some or all of the statements were admissible under one of the numerous
exceptions to the hearsay rule.” Id. Similarly, because Rosas did not make any hearsay
objections, the state was not given an opportunity to make counter-arguments that the
statements at issue are either non- hearsay or within exceptions to the hearsay rule.
Consequently, we seek to determine only whether each of the statements at issue are
“clearly or obviously inadmissible hearsay.” See id.
First, we consider J.R.’s testimony about Rosas’s threatening statement to her. That
statement could have been admitted as a non-hearsay statement of a party-opponent
because it is Rosas’s own statement and was offered against him. See Minn. R. Evid.
801(d)(2)(A); State v. Reed, 737 N.W.2d 572, 590 (Minn. 2007) (affirming admission of
defendant’s statements to jailhouse informant); State v. Tovar, 605 N.W.2d 717, 726
(Minn. 2000) (affirming admission of defendant’s statements to witness).
Second, we consider J.R.’s testimony about her statement to Officer Bannert about
Rosas’s threatening statement to her. That testimony arguably consists of hearsay within
hearsay, which requires that each hearsay statement be admissible. See Minn. R. Evid.
805; State v. Martin, 614 N.W.2d 214, 223 (Minn. 2000). The first part—J.R.’s statement
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to Officer Bannert—could have been admitted as a non-hearsay prior statement “describing
or explaining an event or condition made while the declarant was perceiving the event or
condition or immediately thereafter.” Minn. R. Evid. 801(d)(1)(D); see also State v.
Pieschke, 295 N.W.2d 580, 583 (Minn. 1980) (affirming admission of victim’s prior
consistent statement made to police officers within minutes of incident). In addition, if
Rosas had objected, the prosecutor could have reordered the direct examination of J.R. so
that the first part of her testimony could have been admitted as a non-hearsay prior
consistent statement. See Minn. R. Evid. 801(d)(1)(B); State v. Nunn, 561 N.W.2d 902,
908-09 (Minn. 1997) (affirming admission of witness’s testimony about her prior out-of-
court statement); State v. Bakken, 604 N.W.2d 106, 109-10 (Minn. App. 2000) (affirming
admission of videotaped interview of victim on ground that victim’s testimony was central
to case), rev. denied (Minn. Feb. 24, 2000). The second part of J.R.’s testimony—Rosas’s
threatening statement to J.R.—could have been admitted as a statement of a party-
opponent, as stated above. See Minn. R. Evid. 801(d)(2)(A); Reed , 737 N.W.2d at 590;
Tovar, 605 N.W.2d at 726.
Third, we consider Officer Bannert’s testimony about J.R.’s statement to him about
Rosas’s threatening statement to J.R. That testimony arguably is hearsay within hearsay.
The first part —Officer Bannert’s testimony about J.R.’s statement to him—could have
been admitted as a non-hearsay statement pursuant to Minn. R. Evid. 801(d)(1)( D), as
stated above. In addition, the first part could have been admitted pursuant to the excited -
utterance exception to the hearsay rule. See Minn. R. Evid. 803(2). Under that exception,
a statement is admissible if it was made “under the stress of excitement caused by the
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event.” Id. The evidence shows that J.R. told Officer Bannert about Rosas’s threat
approximately five minutes after she called 911 and that her speech was “rapid.” State v.
Berrisford, 361 N.W.2d 846, 851 (Minn. 1985) (affirming admission of witness’s
statement to witness 90 minutes after murder); State v. Berry, 309 N.W.2d 777, 783 (Minn.
1981) (affirming admission of witness’s statements about conversation with defendant less
than hour after incident); see also State v. Smith, 333 N.W.2d 879, 880 n.1 (Minn. 1983)
(stating in dicta that victim’s statement to fellow employee immediately after incident
would have been admissible over hearsay objection). The second part of Officer Bannert’s
testimony—Rosas’s threatening statement to J.R.—could have been admitted as a
statement of a party-opponent, as stated above. See Minn. R. Evid. 801(d)(2)(A); Reed,
737 N.W.2d at 590; Tovar, 605 N.W.2d at 726.
Because each of the three challenged statements could have been ruled admissible,
either as non-hearsay or under an exception to the hearsay rule, the statements are not
“clearly or obviously inadmissible hearsay.” See Manthey, 711 N.W.2d at 504. Thus, the
district court did not plainly err by admitting the three statements.
Affirmed.