State of Minnesota v. Mainza Lombe Malambo

This opinion is nonprecedential except as provided by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
A23-0139

State of Minnesota,
Respondent,

vs.

Mainza Lombe Malambo,
Appellant.

Filed December 18, 2023
Affirmed in part, reversed in part and remanded
Connolly, Judge

Hennepin County District Court
File No. 27-CR-21-23225

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

Mary F. Moriarty, Hennepin County Attorney, Adam E. Petras, Assistant County Attorney,
Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Rachel F. Bond, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Reyes, Presiding Judge; Connolly, Judge; and Klaphake,

Judge.


Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
 NONPRECEDENTIAL OPINION

CONNOLLY, Judge

Appellant challenges his conviction of third-degree criminal sexual conduct,

arguing that he is entitled to a new trial because the district court committed reversible

error by admitting a witness’s out-of-court police statement as a recorded recollection. He

also challenges his sentence on both counts on the ground that the two offenses arose from

a single behavioral incident. He also challenges the imposition of a lifetime conditional

release on count two and the language in his warrant of commitment. We affirm in part,

reverse in part, and remand.

FACTS

G.A. was in an intimate relationship with appellant Mainza Malambo from about

2018 until 2020, when their relationship ended. Both worked in the hospitality industry,

and they remained on friendly terms. One evening in September 2021, G.A., while

working as a drink server, consumed enough alcohol that she was intoxicated by 2:30 a.m.,

when she finished working. She had planned to attend an after-work party with her

boyfriend, A.A., but when he arrived and saw how drunk she already was, he went home,

and G.A. drove herself to the party.

At the party, G.A. telephoned her friend M.H., who said she was in the hospital and

therefore not coming. M.C., a member of the security staff at the party venue, saw G.A.’s

condition and took her keys away from her. About 6 a.m., appellant, who was also a guest

at the party, asked G.A. for a ride home. G.A. drove appellant to his apartment. He asked

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her to come in and sober up and said he would call an Uber for her. G.A. went into

appellant’s apartment and fell asleep on his bed.

She woke around 7 a.m. to find appellant on top of her and penetrating her vagina

with his penis. She tried unsuccessfully to push him off, then again fell asleep. Around

11 a.m. she woke again to find appellant on top of her, penetrating her. She told him she

did not want this and tried to push him off, but he did not comply, telling her he was

stronger than she was. Later, G.A. drove appellant downtown and then went home.

In October, G.A. reported the two assaults to the police. Appellant was charged

with count one, third-degree criminal sexual conduct/complainant physically helpless or

mentally incapacitated, and count two, third-degree criminal sexual conduct/coercion.

About a month after the incident, the police interviewed M.C. He gave a three-

minute taped statement about G.A.’s condition that night:

Yes so we’re doing the afterparty. I’m the security so I was
outside and then I came upstairs. I seen her like falling over
and I seen she had her keys, so I took her keys from her. But I
had to go back outside. Then I came back up again I seen her
stumbling. So, I made her sit down. And then at like 5 in the
morning she was like all right I have a ride home. I need my
keys to get into my house. So I’m not driving. So, I gave her,
her keys. And then she walked out.

At appellant’s trial, M.C. did not want to testify and said he did not remember either

the night when he took G.A.’s keys or giving a statement to the police. But, when he heard

the recording of the statement, he acknowledged that the voice on it was his, and said he

did remember giving the statement. Over M.C.’s objection, the tape was played for the

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jury. When asked at trial if he had said G.A. was falling down because of the amount of

alcohol she had consumed that night, M.C. testified, “Yes, she was drunk. Yes.”

The jury found that appellant was guilty of both charges and that he did not use

force. Because the district court concluded that the crimes were not part of a single

behavioral incident, appellant was sentenced to 48 months in prison and ten years of

conditional release on count one and to 76 months in prison and lifetime conditional release

on count two. Both sentences were to run concurrently.

Appellant challenges his conviction and his sentence, arguing that (1) the district

court abused its discretion by admitting M.C.’s recorded statement under Minn. R. Evid.

803(5), the recorded past-recollection exception to the rule against hearsay; and (2) the

district court erred in sentencing him on both counts because his offenses were committed

as part of a single behavioral incident. He also challenges the imposition of a lifetime

conditional release on count two and the language on the warrant of commitment

concerning the use of force.

DECISION

1. Admission of Evidence

“Evidentiary rulings rest within the sound discretion of the district court, and we

will not reverse an evidentiary ruling absent a clear abuse of discretion. State v. Ali, 855

N.W.2d 235, 249 (Minn. 2014). “[A]n appellant who alleges an error in the admission of

evidence that does not implicate a constitutional right must prove that there is a reasonable

possibility that the wrongfully admitted evidence significantly affected the verdict.” State

v. Peltier, 874 N.W.2d 792, 802 (Minn. 2016) (quotation omitted).

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 The district court admitted the tape of M.C.’s statement under Minn. R. Evid.

803(5), providing, as an exception to the rule against hearsay:

[a] memorandum or record concerning a matter about which a
witness once had knowledge but now has insufficient
recollection to testify fully and accurately, shown to have been
made or adopted by the witness when the matter was fresh in
the witness’ memory and to reflect that knowledge correctly.

Appellant argues that, while the tape was a record concerning something M.C. once had

knowledge about but could no longer remember fully and it had been made by M.C. when

the event was fresh in his memory, it did not reflect his knowledge of the event correctly

because “[M.C.] did not vouch for the accuracy of the statement either when he made it or

at trial” and therefore “the statement was not admissible as a recorded recollection.”

No precedential Minnesota case states that a witness must testify to the accuracy of

the statement for it to be admissible under Minn. R. Evid 803(5). Appellant relies on Polite

v. State, 116 So.3d 270, 279 (Fla. 2013) (a 5-2 decision holding that a “hearsay statement

was inadmissible because the witness did not vouch for its accuracy or correctness”), but

appellant does not explain why Florida caselaw would apply here. Moreover,

nonprecedential Minnesota decisions hold that testimony on the accuracy of a statement

made under Minn. R. Evid. 803(5) is not required. See, e.g., State v. Robinson, A17-0525,

2018 WL 414327, *4 (Minn. App. Jan. 16, 2018) (refuting argument that admitting a

recorded statement absent testimony as to the accuracy of the statement was plain error

where (1) the declarant was a reluctant witness trying to recant to benefit the appellant and

(2) other evidence presented at trial supported the accuracy of the statement), aff’d, 921

N.W.2d 755 (Minn. Jan. 9, 2019); State v. Barta, A12-1851, 2013 WL 4404579, *2-3

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(Minn. App. Aug. 19, 2013) (holding that statement was admissible although declarant had

been intoxicated at the time of making the statement and could not remember it and noting

that “rule 803(5) is silent as to how the fourth requirement [that the statement reflects the

declarant’s knowledge correctly] is established”), rev. denied (Minn. Oct. 23, 2013). We

therefore conclude that the district court did not abuse its discretion by admitting the out-

of-court statement as a recorded recollection. But, even if there was an error, appellant

cannot show that it affected the outcome of the case.

Appellant’s attorney, when opposing the admission of the statement, stated that

“[M.C.’s] brief testimony . . . about not remembering is clearly not credible.” Two other

witnesses, G.A.’s boyfriend A.A. and her friend M.H., provided testimony about G.A.’s

intoxication that corroborated M.C.’s recorded statement. Thus, there was little probability

that the verdict would have been different without M.C.’s statement.

Admitting that statement into evidence under Minn. R. Evid. 803(5) was not an

abuse of discretion, and, even if it were, appellant has not met his burden of showing a

reasonable possibility that the statement affected the verdict. See Peltier, 874 N.W.2d at

802.

2. Sentencing

The district court said at sentencing:

[T]he jury found two separate acts. It’s not simply two separate
theories to convict based on one act. It was two counts based
on two separate incidents that included, again, two different
theories, two different ways to commit the act.
There is no particular requirement for how much time needs to
pass between the incidents for it to not be considered a single
behavioral incident. But I do believe in this case that . . .

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 enough time . . . occurred for this to be sentenced as two
separate incidents and not a single behavioral incident.
. . . [T]he complaint was amended . . . to include separate
counts under two different acts and not just another theory for
the same act.

Appellant was sentenced on both counts.

He relies on Minn. Stat. § 609.035, subd. 1 (2020) (providing that, if a person’s

conduct constitutes more than one offense, but the multiple offenses are part of a single

behavioral incident, the person may be punished for only one offense) to argue that the

district court erred in concluding that appellant’s two sexual assaults of G.A. were not a

single behavioral incident. Whether offenses were part of a single behavioral incident is a

mixed question of law and fact, and an appellate court reviews the findings of fact for clear

error and the application of the law to those facts de novo. State v. Bakken, 883 N.W.2d

264, 270 (Minn. 2016).

To determine whether offenses were part of a single behavioral incident, a court

considers whether the defendant was motivated by a desire to obtain a single criminal

objective, State v. Johnson, 653 N.W.2d 646, 651 (Minn. App. 2002), but the fact that both

offenses served the purpose of sexual gratification does not unify two separate acts of

criminal sexual conduct into a single behavioral incident. State v. Barthman, 938 N.W.2d

257, 267 (Minn. 2020). Courts also consider whether offenses arose from one

uninterrupted course of conduct, occurred at substantially the same time, and showed an

indivisible state of mind, Johnson, 653 N.W.2d at 651-52, and whether the offenses were

necessary or incidental to committing a single crime. Barthman, 938 N.W.2d at 267. Here,

the two offenses were four hours apart; the first was committed with a victim so intoxicated

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that she could not consent, while the second was committed by coercing a nonconsenting

victim, and neither offense was connected in any way to the other.

Appellant relies on State v. Herberg, 324 N.W.2d 346, 348 (Minn. 1982)

(concluding that a defendant who assaulted and committed first-degree criminal sexual

conduct with a victim, then, fearing he would be observed, drove the victim a short distance

and again assaulted and committed first-degree criminal sexual conduct with her, was

engaged in a single behavioral incident because “there was an underlying unity to the

various acts of assault, penetration, and degradation”). Herberg distinguishes State v.

Stevenson, 286 N.W.2d 719, 720 (Minn. 1979), in which the supreme court concluded that

two rapes of the same victim, in the same place, were not a single behavioral incident

because they were separated by nearly five hours and “neither act bore any essential

relationship to the other. The two rapes in this case resemble those in Stevenson rather than

those in Herberg.

Appellant also argues, and respondent the State of Minnesota agrees, that the

imposition of the lifetime conditional release in the sentence on count two should be

reversed because the guilty verdicts were simultaneously accepted and recorded.

Respondent also agrees with appellant that the matter should be remanded to strike a

clerical error on the warrant of commitment stating that appellant used force, given the

jury’s response to a special interrogatory finding that appellant did not use force.

Therefore, we reverse the imposition of the lifetime conditional release and remand for

correction of the warrant of commitment.

Affirmed in part, reversed in part, and remanded.

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