State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A16-0605

State of Minnesota,
Respondent,

vs.

Sergio Javier Saldana-Viryen,
Appellant.

Filed March 6, 2017
Affirmed
Smith, Tracy M., Judge

Ramsey County District Court
File No. 62-CR-15-4130

Lori Swanson, Attorney General, St. Paul, Minnesota; and

John J. Choi, Ramsey County Attorney, Peter R. Marker, A ssistant County Attorney, St.
Paul, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Pub lic Defender, Suzanne M. Senecal-Hill,
Assistant Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Hooten, Presiding Judge; Schellhas, Judge; and Smith,
Tracy M., Judge.
U N P U B L I S H E D O P I N I O N
SMITH, TRACY M., Judge
Appellant Sergio Javier Saldana-Viryen appeals his conviction of second-degree
criminal sexual conduct, arguing that the di strict court committed reversible error by

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admitting inadmissible hearsay testimony. Because we conclude that the district court did
not plainly err in permitting the testimony, we affirm.
FACTS
Saldana-Viryen and his wife M.T. have four children. Saldana-Viryen was charged
with sexually abusing three of their children: his 13-year-old son B.A.S.A.; his 10-year-
old daughter B.G.S.A.; and his 6-year-old son C.J.S.A.
The relevant facts begin on January 14, 2015, when C.J.S.A. was found in a
bathroom stall at school with a female stude nt. The school’s principal spoke with both
children’s parents about the incident, and the school social worker interviewed the children.
At this interview, C.J.S.A. did not mention anything about Saldana-Viryen inappropriately
touching him.
Two months later, C.J.S.A. was again foun d in a bathroom st all with the same
female student. The following week, M.T. met with the social worker and the principal to
discuss the situation. M.T. informed them that Saldana- Viryen had touched all three
children’s genital regions on multiple occasi ons. The social work er then interviewed
C.J.S.A. alone. C.J.S.A. told the social worker that Saldana-Viryen had touched C.J.S.A.’s
genital region. C.J.S.A. also told her that Saldana-Viryen asked C.J.S.A. to touch Saldana-
Viryen’s genitals but C.J.S.A. refused.
A St. Paul police officer spoke separately with M.T. and Saldana-Viryen. M.T.
informed the officer that Saldana-Viryen touched the two oldest children’s genital regions,
but explained that she “never saw that he wanted to sexually abuse them.” Saldana-Viryen

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told the officer that he would playfully grab C.J.S.A. and B.G.S.A.’s genitals, but he denied
touching B.A.S.A.
Saldana-Viryen was charged with three counts of second-degree criminal sexual
conduct on July 29. A jury trial commenced on November 16.
All three children testified at trial. B. A.S.A. testified that Saldana-Viryen would
grab him and his siblings in the genital region “whe n [they] were just getting out of the
bath, or when [they] were just sitting down.” B.A.S.A. could not recall whether Saldana-
Viryen had touched or grabbed him under the clothes, but he estimated that Saldana-Viryen
had touched him 40 times or more. He also testified that the grabbing “usually hurt” and
that he repeatedly told Saldan a-Viryen to stop. B.G.S.A. testified that Saldana-Viryen
would grab her private parts “r eally hard” underneath her clothe s. C.J.S.A. testified that
Saldana-Viryen would touch his genital region “on the skin.” He st ated that he told
Saldana-Viryen to stop, but he did not stop. C.J.S.A. recalled talking to a social worker at
school regarding Saldana-Viryen’s conduct at home, and testified that he told the social
worker the truth.
The social worker also testified, recountin g her interview with C.J.S.A. She stated
that C.J.S.A. informed her that Saldana-Viryen had touched him in the genital region while
C.J.S.A. “had his clothes on.” Relevant for this appeal, when asked what C.J.S.A. told the
social worker during the interview, the social worker responded, “I asked [C.J.S.A] if dad
had ever asked him to touch dad. And he said, I never touched dad. But he said, he had
asked me to. And I said no. And he said it occurred several times.” Saldana-Viryen did
not object to this statement.

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The St. Paul police officer testified abou t her conversations with M.T. and Saldana-
Viryen. The officer testified that Saldana-Viryen claimed to be “playing with the kids”
and he grabbed the children because he was “joking” with them.
Saldana-Viryen testified in his own defense, denying th at he ever inappropriately
touched the children. He tes tified that he often played w ith the children physically by
wrestling and grabbing them. During cross-ex amination, Saldana-Vi ryen testified that
C.J.S.A. would use Spanish-slang terms for ge nitals, so Saldana-Viryen would grab him
by the groin, throw him on the bed, and threaten to spank him if he used those words again.
He also testified that he told M.T. that the children were using these slang terms and that,
“[i]f she was with them [she should] tell th em to stop saying [those words], otherwise
[Saldana-Viryen and M.T.] would burn their mouths or cut their [genitals].” Saldana-
Viryen later clarified that he touched the children’s genital regions in a playful manner.
After three days of trial, the jury retu rned not-guilty verdic ts on the two counts
pertaining to Saldana-Viryen’s conduct toward B.A.S.A. and B.G.S.A., and a guilty verdict
on one count of second-degree criminal sexual conduct pertaining to his conduct toward
C.J.S.A. The judge sentenced Saldana-Viryen to 90 months in prison.
Saldana-Viryen appeals.
D E C I S I O N
Saldana-Viryen argues that the district court erred in admitting the social worker’s
testimony about what C.J.S.A. told her dur ing the March 2015 interview because the
testimony contained inadmissible hearsay. In particular, Saldana-Viryen argues that the

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admission of C.J.S.A.’s out-of-court statement that Saldana-Viryen asked C.J.S.A. to touch
him was plainly erroneous and warrants reversal of his conviction.
In the absence of an objection at trial, we review the admission of evidence for plain
error. State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998). Under the plain-error standard,
the defendant must show: (1) an error, (2) that is plain, and (3) that affected the defendant’s
substantial rights. Id. An error is plain if it “contravenes case law, a rule, or a standard of
conduct.” State v. Ramey , 721 N.W.2d 294, 3 02 (Minn. 2006). An error affects the
defendant’s substantial rights if the prejudice “forms the basis for a reasonable likelihood
the error substantially affected the verdict.” State v. Manthey, 711 N.W.2d 498, 504 (Minn.
2006). If the defendant shows all three conditions of the plain-error standard, we consider
whether reversal is necessary to ensure the fairness and integrity of the judicial proceeding.
Griller, 583 N.W.2d at 740. “Because courts ar e not required or even advised to make
such affirmative intrusions on proceedings,” the failure of the district court to act sua sponte
in reaction to objectionable testimony at trial typically does not constitute plain error.
Manthey, 711 N.W.2d at 505.
Hearsay is defined in the Minnesota Rules of Evidence as a “statement, other than
one made by the declarant while testifying at th e trial or hearing, offered in evidence to
prove the truth of the matter asserted.” Minn. R. Evid. 801(c). Hearsay is not admissible
unless a recognized exception applie s. Minn. R. Evid. 802. In Manthey, the Minnesota
Supreme Court recognized that “[t]he number and variety of exceptions to the hearsay
exclusion make objections to su ch testimony particularly im portant to the creation of a
record of the [district] court’s decision-maki ng process in either admitting or excluding a

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given statement.” 711 N.W.2d at 504. In Manthey, the defendant did not object to the
allegedly inadmissible statements at trial and therefore, the supreme court reasoned, “the
state was not given the opportunity to establis h that some or all of the statements were
admissible under one of the numerous exceptions to the hearsay rule.” Id. The court thus
held that the admission of the statem ents did not constitute plain error. Id. Similarly, in
State v. Smith , this court concluded that a distri ct court did not commit plain error by
admitting hearsay testimony “because [the defendant’s] counsel failed to object at trial and,
as a result, the prosecutor did not have the opportunity to argue for the admissibility of the
statements under several hear say exceptions.” 825 N.W.2d 131, 138-39 (Minn. App.
2012), review denied (Minn. Mar. 19, 2013).
Saldana-Viryen did not object to the social worker’s testimony regarding C.J.S.A.’s
allegedly inadmissible statements. Absent an objection, the state did not have an
opportunity to argue for the admissibility of the social wo rker’s testimony under the
hearsay exceptions. See Manthey, 711 N.W.2d at 504. We cannot say that the district court
plainly erred in allowing this allegedly inadmissible testimony. See id.
Even if the district court plainly erred in admitting the social worker’s testimony,
we conclude that any plain e rror did not affect Saldana-Vi ryen’s substantial rights. See
Griller, 583 N.W.2d at 740. An error affects the defendant’s substantial rights if it is
“prejudicial and affect[s] the outcome of the case.” Id. at 741. The defendant bears the
heavy burden of persuasion on this third prong of the plain-error standard. Id.
All three children testified that Saldana- Viryen grabbed their genitals on multiple
occasions, but the jury found him guilty of sexual misconduct only on the count pertaining

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to C.J.S.A. Saldana-Viryen argues on appeal that the “key difference between [C.J.S.A.’s]
version of what happened and [B.A.S.A.’s] a nd [B.G.S.A.’s] versions of what happened
came from [C.J.S.A.’s] out-of-court statement to [the social worker], ” specifically that
Saldana-Viryen had asked C.J.S.A. to touch him. Saldana-Viryen contends that this
allegedly inadmissible testimony provided the ju ry with evidence of sexual or aggressive
intent that was absent in B.A.S.A. and B.G.S.A.’s versions of events.
Our review of the trial transcript sugge sts that C.J.S.A.’s out-of-court statement
about Saldana-Viryen asking C.J.S.A. to t ouch him had no prejudicial impact on the
proceedings. While C.J.S.A. was on the sta nd, neither the defense attorney nor the
prosecutor asked him to elaborate on this stat ement to the social wo rker. Moreover, the
attorneys did not question C.J.S.A. about whether Saldana-Viryen had ever asked C.J.S.A.
to touch him, and they did not revisit the issue during their closing arguments. Rather, the
difference in the verdicts may be explained by Saldana-Viryen’s own testimony. Saldana-
Viryen admitted at trial to grabbing C.J.S.A.’s genitals, but denied touching B.A.S.A. and
B.G.S.A. During its closing argument, the stat e emphasized that Saldana-Viryen’s stated
motive for grabbing C.J.S.A. as a “game” he played with the children had changed during
the course of the trial to “dis ciplining [C.J.S.A.].” As such, we cannot say that any plain
error affected the outcome of the case. See Griller, 583 N.W.2d at 741.
Because we conclude that th e district court did not plainly err in admitting the social
worker’s testimony about C.J.S.A.’s out-of-court statement and that, in any event, any error
was not prejudicial, we affirm.
Affirmed.