A24-0666

This opinion is nonprecedential except as provided by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
A24-0665
A24-0666

State of Minnesota,
Respondent,

vs.

Alicia Marie Neely,
Appellant.

Filed April 14, 2025
Affirmed
Wheelock, Judge

Freeborn County District Court
File Nos. 24-CR-23-98, 24-CR-23-103

Keith Ellison, Attorney General, Lisa Lodin, Assistant Attorney General, St. Paul,
Minnesota; and

David Walker, Freeborn County Attorney, Albert Lea, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Roy G. Spurbeck, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Worke, Presiding Judge; Connolly, Judge; and
Wheelock, Judge.
NONPRECEDENTIAL OPINION
WHEELOCK, Judge
In this consolidated appeal, appellant challenges her conviction following a jury trial
for the first-degree sale of a controlled substance and her sentencing for both the jury-trial
2
conviction and her conviction following her guilty plea to a different first-degree sale of a
controlled substance, arguing that the admission of a law-enforcement officer’s testimony
regarding prior encounters with appellant was prejudicial plain error and that the district
court abused its discretion when it denied appellant’s downward dispositional departure
motion. Because the officer’s testimony did not affect appellant’s substantial rights and
the district court did not abuse its discretion in denying her departure motion, we affirm.
FACTS
Appellant Alicia Marie Neely sold approximately 20 grams of methamphetamine to
a confidential informant during a controlled purchase that occurred at Neely’s residence in
Albert Lea in December 2021. In advance of the controlled purchase, law enforcement
had outfitted the confidential informant with a special cell phone that recorded audio and
video footage so the informant could document the purchase.
The confidential informant took the cell phone out of his pocket only a few times
during the controlled purchase, but the cell phone’s microphone captured the full
conversation between Neely and the informant. Before arresting Neely, law enforcement
conducted an additional controlled purchase of methamphetamine from her in November
2022. Respondent State of Minnesota charged Neely with two counts of first-degree sale
of a controlled substance for the December 2021 and November 2022 sale s of
methamphetamine.
3
The matter proceeded to a jury trial on the charge arising from the December 2021
sale.1 At that trial, the state presented testimony from three law-enforcement officers, a
forensic scientist from the Minnesota Bureau of Criminal Apprehension (BCA), and the
confidential informant from the December 2021 controlled purchase . The jury heard the
audio recording captured by the cell phone that the confidential informant used to
document the purchase. The jury also received a still-shot photo of Neely holding a bag of
methamphetamine from the video that the cell phone had recorded. Her face was not
clearly visible in the photo.
The confidential informant testified that he knew Neely prior to the controlled
purchase, and he identified her in the courtroom. Both the confidential informant and law
enforcement testified that the controlled purchase occurred at Neely’s residence. A BCA
forensic scientist testified that the substance Neely sold the confidential informant was
methamphetamine.
The law-enforcement officer who set up the controlled purchase testified at trial.
When describing a conversation with the confidential informant in which the informant
offered to conduct a controlled purchase of methamphetamine from Neely, the officer said,
“I’ve heard [Neely’s] name for a long time. I’ve heard it through a lot of my cases. And
if [this confidential informant] could [execute a controlled purchase from Neely ], that
would be great.” In response to a question about whether he knew Neely from personal

1 After trial and sentencing on the December 2021 offense, Neely entered a guilty plea for
the November 2022 offense. In this consolidated appeal, she challenges her conviction
from the jury trial and the district court’s denial of her downward dispositional departure
motion for the sentencing of both convictions.
4
experience, the officer testified that he had “known her for— since she was a waitress at
Perkins when she was in high school.” He also testified that he was “a hundred percent”
confident he could identify Neely by her voice and, later, that he could recognize her voice
from “multiple contacts and a lot of voice recordings.” In response to a question about
whether the officer recognized a photograph from the Minnesota Department of Public
Safety, Driver and Vehicle Services (DVS) website used to identify Neely in this case, he
testified that he had seen the photograph “hundreds of times.”
Neely chose not to testify, and she did not call any witnesses. D uring closing
argument, Neely argued that the state failed to prove that she was the person who sold the
confidential informant methamphetamine in the December 2021 controlled purchase.
The jury found Neely guilty of first-degree sale of methamphetamine in violation of
Minn. Stat. § 152.021, subd. 1(1) (2020), and she subsequently pleaded guilty to the charge
of first-degree sale of methamphetamine associated with the November 2022 controlled
purchase.
Prior to sentencing for both convictions, Neely moved for a downward dispositional
departure. Neely argued that she was particularly amenable to probation because she had
completed a short-term treatment program and, at the time of filing, she was participating
in a long-term treatment program. In support of her motion, Neely submitted letters from
her sister, treatment care manager, and two community members. The district court denied
Neely’s downward dispositional departure motion, sentencing her to concurrent terms of
imprisonment for the convictions.
Neely appeals.
5
DECISION
I. The officer’s testimony about recognizing Neely from prior contacts did not
affect her substantial rights.
Neely argues that the officer’s testimony about having prior contacts with her was
plain error that prejudiced her right to a fair trial. The state argues that Neely cannot meet
her burden of establishing that the officer’s testimony was plain error or, if it was error,
that it affected her substantial rights. During trial, Neely did not object to, and the district
court did not address sua sponte, the challenged testimony.
We review unobjected -to errors for plain error. Minn. R. Crim. P. 31.02; State v.
Kuhlmann, 806 N.W.2d 844, 852 (Minn. 2011). When conducting a plain-error review,
we must “determine whether there was [1] error, [2] that was plain, and [3] that affected
the defendant’s substantial rights.” Kuhlmann, 806 N.W.2d at 852. “An error is ‘plain’
when it is clear or obvious.” Id. at 853. If the plain error affected the outcome of the case,
then it affected the defendant’s substantial rights. See id. at 852-53. “Under the plain error
rule, if [an appellate court] find[s] that any one of the requirements is not satisfied, [it] need
not address any of the others.” State v. Lilienthal, 889 N.W.2d 780, 785 (Minn. 2017)
(quotation omitted). If the appellant shows that all three prongs of plain-error review are
met, appellate courts next consider whether reversal is required to ensure “the fairness,
integrity, or public reputation of judicial proceedings.” Id. (quotation omitted).
Generally, evidence of a person’s character is not admissible to show “action in
conformity therewith,” Minn. R. Evid. 404(a), and “[e]vidence of another crime, wrong, or
act is not admissible to prove the character of a person in order to show action in conformity
6
therewith,” Minn. R. Evid. 404(b) (1). On appeal, Neely claims that three statements the
officer made during his direct examination improperly related to her character or prior bad
acts and thus constituted plain error.
The first statement Neely identifies as plain error occurred when the officer
explained how the confidential informant offered to help law enforcement by executing a
controlled purchase of methamphetamine from her. The prosecutor asked the officer,
“What happened?” The officer responded that he had been hearing Neely’s “name for a
long time . . . through a lot of [his] cases. And if [the confidential informant] could
[execute a controlled purchase from Neely], that would be great.” The second statement
Neely identifies as plain error occurred when the prosecutor asked the officer the following
question: “When you listened to the recording and when you were in active surveillance at
the time using your phone, what voices did you hear? Whose voices did you hear in that
recording?” The officer answered that he heard “[a] female, which is a voice that [he]
recognized from multiple contacts and a lot of voice recordings, as Alicia Neely.”2 The
third statement Neely identifies as plain error occurred when the prosecutor asked whether
the officer was confident that he could recognize Neely by her DVS photograph. The
prosecutor asked the officer if he had seen Neely’s DVS photograph recently. The officer
answered that he had seen the photograph “hundreds of times.”
We assume without deciding that the district court’s admission of the statements
made during the officer’s testimony was plain error and proceed to analyze whether the

2 We present the statements in the order in which Neely presented them in her brief.
However, the “second statement” occurred after the “third statement” during trial.
7
statements affected Neely’s substantial rights. Appellate courts “generally will not reverse
a verdict even when improper evidence is presented to the jury unless there is a reasonable
possibility that the wrongfully admitted evidence significantly affected the verdict.” State
v. Bigbear, 10 N.W.3d 48, 54 (Minn. 2024) (quotations omitted).
3 The supreme court
recently clarified that appellate courts consider the entire record and identified a list of
nonexclusive factors that appellate courts may apply when determining whether there is a
reasonable possibility that the erroneously admitted evidence significantly affected the
verdict:
(1) the manner in which the party presented the evidence,
(2) whether the evidence was highly persuasive, (3) whether
the party who offered the evidence used it in closing argument,
and (4) whether the defense effectively countered the evidence.

Bigbear, 10 N.W.3d at 54 (quotation omitted).
As to the first factor — the manner in which the party presented the evidence—the
officer’s statements were made in response to the prosecutor’s open-ended
direct-examination questions. It does not appear that the state intentionally elicited any of
the challenged statements. Therefore, the first factor does not weigh in favor of concluding
that the officer’s statements affected the jury’s verdict.

3 The supreme court in Bigbear applied a “harmless error” analysis. Id. “[T]he third prong
of the plain error standard is the equivalent of a harmless error analysis.” State v. Matthews,
800 N.W.2d 629, 634 (Minn. 2011). In other words, “[t]he ‘affects substantial rights’
language of the third plain error factor is the same language used to define harmless error.”
State v. Reed, 737 N.W.2d 572, 583 (Minn. 2007) (citing Minn. R. Crim. P. 31.01).
8
As to the second factor—whether the evidence was highly persuasive —the officer’s
statements were potentially persuasive, but likely not highly persuasive. The officer’s
statements about having “heard [Neely’s name] through a lot of [his] cases,” knowing her
DVS photograph because he has seen it “hundreds of times,” and being able to identify
Neely by her voice because he has heard “a lot of voice recordings” may have been
unfavorable for Neely. However, the relevant portion of his testimony was his
identification of the woman in the audio recording as Neely—not his prior involvement
with Neely.
When reviewing the persuasiveness of the evidence that Neely challenges, we also
consider the strength of the evidence in the state’s case, particularly because “strong
evidence of guilt undermines the persuasive value of wrongly admitted evidence.” Id.
(quotation omitted). Here, the state provided strong evidence, which Neely does not
challenge, that supported the officer’s testimony that it was Neely who sold the controlled
substances. Both the officer and the informant corroborated that Neely lived at the address
where the December 2021 controlled purchase occurred. And t he informant identified
Neely in the courtroom and testified that she was the person who sold him
methamphetamine in December 2021. The evidence presented at trial thus weighed
heavily in favor of convicting Neely, and any persuasive effect of the challenged statements
could not reasonably have outweighed the evidence supporting the jury’s verdict. Because
the state presented strong evidence to support the jury’s guilty verdict, the second factor
does not weigh in favor of concluding that the officer’s statements affected the jury’s
verdict.
9
As to the third factor— whether the party who offered the evidence used it in closing
argument— the prosecutor discussed the officer’s familiarity with Neely’s voice during
closing argument but did not mention his testimony about having known her from prior
interactions with law enforcement. Specifically, the prosecutor said:
[The officer] testified regarding Alicia Neely. He has known
her for a long time. He has heard her. He knows her voice.
He heard her voice and identified her voice on that recording.
And I said, “Well, how sure are you of that? ” He said he’s a
hundred percent confident on that. He knows her voice. So
he’s not guessing about the voice there. He knows that, and he
can identify her voice in that—in the video itself.

In considering how the officer’s knowledge of Neely was referenced in the closing
argument, we observe that the officer also testified that he had known Neely since she was
a waitress at a local restaurant in high school. Furthermore, while the argument focused
on the officer’s knowledge of Neely that enabled him to identify her voice, the prosecutor
did not reference the challenged statements. Because the prosecutor did not use those
statements during closing argument, the third factor does not weigh in favor of concluding
that the officer’s statements affected the jury’s verdict.
As to the fourth factor —whether the defense effectively countered the evidence —
although Neely cross- examined the officer and addressed his testimony in closing
argument, she did not attempt to directly counter any potential negative inferences that the
jury may have drawn specifically from the challenged statements. Because Neely did not
counter the evidence with which she takes issue on appeal, the fourth factor weighs in favor
of determining that the officer’s statements affected the jury’s verdict.
10
Because only one of the factors weighs in favor of determining that the officer’s
testimony affected Neely’s substantial rights, we conclude that the statements did not affect
Neely’s substantial rights. And because admitting the challenged statements did not affect
Neely’s substantial rights, a new trial is not necessary. Lilienthal, 889 N.W.2d at 785.
II. The district court did not abuse its discretion when it denied Neely’s motion for
a dispositional departure.
Neely claims that, because evidence in the record demonstrated that she is
particularly amenable to probation, the district court abused its discretion when it denied
her motion for a downward dispositional departure. We disagree.
The Minnesota Sentencing Guidelines require a district court to impose a
defendant’s presumptive sentence “unless there exist identifiable, substantial, and
compelling circumstances to support a departure” from that presumptive sentence. Minn.
Sent’g Guidelines 2.D.1 (Supp. 2021). “Because the guidelines’ goal is to create
uniformity in sentencing, departures are justified only in exceptional cases.” State v.
Solberg, 882 N.W.2d 618, 625 (Minn. 2016). District courts have broad discretion to
determine whether a departure from the sentencing guidelines is appropriate, and appellate
courts “generally will not interfere with the exercise of that discretion.” State v. Kindem ,
313 N.W.2d 6, 7 (Minn. 1981). “[A]s long as the record shows the [district] court carefully
evaluated all the testimony and information presented before making a determination,” we
will not disturb the district court’s decision to deny a departure motion. State v. Van Ruler,
378 N.W.2d 77, 80-81 (Minn. App. 1985). “Only the rare case will merit reversal based
11
on the district court’s refusal to depart.” State v. Johnson, 831 N.W.2d 917, 925 (Minn.
App. 2013) (quotation omitted), rev. denied (Minn. Sept. 17, 2013).
Neely contends that the district court abused its discretion in denying her motion
because she had completed treatment, her family and community agreed that she is
amenable to probation , her defense counsel noted that she exhibited positive behavior
throughout these proceedings, and she previously had only a gross misdemeanor on her
record. The district court considered Neely’s arguments during her sentencing hearing and
commended her on the progress she had made . Yet, it determined that the severity of her
offenses outweighed any potential amenability to probation that she may have
demonstrated. Consequently, the district court denied Neely’s motion and sentenced her
to the presumptive disposition under the Minnesota Sentencing Guidelines. Because the
district court considered Neely’s argument s but was not persuaded that substantial and
compelling reasons supported a departure, we cannot conclude that the district court abused
its discretion when it denied her downward dispositional departure motion.
Affirmed.