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This opinion will be unpublished and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
A16-0689

State of Minnesota,
Respondent,

vs.

Joel Alejo-Rubio,
Appellant

Filed April 3, 2017
Affirmed
Stauber, Judge

Mower County District Court
File No. 50-CR-15-915

Lori Swanson, Attorney General, James B. Ea rly, Assistant Attorney General, St. Paul,
Minnesota; and

Kristen M. Nelson, Mower County Attorney, Austin, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Lydia M. Villalva Lijo, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Stauber, Pres iding Judge; Rodenberg, Judge; and John
Smith, Judge.
*

* Retired judge of the Minnesota Court of Ap peals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
2
U N P U B L I S H E D O P I N I O N
STAUBER, Judge
On appeal from his convictions of tw o counts of first-degree criminal sexual
conduct, appellant argues that the district court (1) abused its discretion by imposing an
upward departure on count one; (2) unfairly exaggerated the criminality of his conduct by
imposing a 420-month sentence that included consecutive sentences for counts one and two;
(3) abused its discretion by ordering restitution to be left open indefinitely; and (4) plainly
erred by admitting the complainant’s videotaped statement. Appellant also filed a pro se
supplemental brief challenging his convictions. We affirm.
FACTS
Appellant Joel Alejo-Rubio and C.A. were married in September 2009. C.A. had
four children at the time, and two additional children were born during the marriage. In
January 2015, the parties separated. Shortly thereafter, C.A.’s daughter, P.J.C., alleged that
she had been sexually abused by appellant. C.A. immediately contacted law enforcement,
and, during a videotaped interview with Detective Patrick Retterath, P.J.C. disclosed that
appellant began sexually abusing her when she was five or six years old and that the abuse
continued until she was nine years old. P.J.C. also alleged that appellant sexually abused
her more than 25 times and that the abuse involved three different orifices. Appellant was
subsequently charged with eight counts of first-degree criminal sexual conduct.
Prior to trial, the state m oved to admit P.J.C.’s interview with Detective Retterath.
Appellant did not object, and the district court granted the state’s motion. Both P.J.C. and
3
Detective Retterath later testified at trial, and the videotape of P.J.C.’s interview with
Retterath was admitted as Exhibit 1 and played for the jury during Retterath’s testimony.
A jury found appellant guilty of all eight charged offenses. The district court then
sentenced appellant to an upward durational departure of 276 months on count one and a
consecutive 144-month sentence on count two, for a total aggregate sentence of 420 months.
The district court also ordered appellant to pay restitution in the amount of $11,344.23, but
at the state’s request, left restitution open “indefinitely.” This appeal followed.
D E C I S I O N
I.
Appellant challenges the dist rict court’s imposition of an upward departure on count
one. The Minnesota Sentencing Guidelines were created to ensure “uniformity,
proportionality, rationality, and predictability in sentencing.” State v. Misquadace, 644
N.W.2d 65, 67 (Minn. 2002); see also Minn. Sent. Guidelines 1.A (2014). A district court
must impose the presumptive guidelines sentence unless “identifiable, substantial, and
compelling circumstances” warrant departure. Minn. Sent. Guidelines 2.D.1 (2014).
Substantial and compelling circumstances are those showing that the defendant’s conduct
was significantly more serious than that typically involved in the commission of the
offense. State v. Edwards, 774 N.W.2d 596, 601 (Minn. 2009). The facts underlying the
departure must be found by a jury or admitted by the defendant. State v. Stanke, 764
N.W.2d 824, 828 (Minn. 2009). The district court must then explain how these facts
create a substantial and compelling reason to impose an upward departure. State v.
Rourke, 773 N.W.2d 913, 919 (Minn. 2009).
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When the district court states its reasons for a departure, the reviewing court
“examine[s] the record to determine if the reasons given justify the departure.” State v.
McIntosh, 641 N.W.2d 3, 8 (Minn. 2002). Whether a stated reason for departure is
“proper” is a legal question that is subject to de novo review. Dillon v. State, 781
N.W.2d 588, 595 (Minn. App. 2010), review denied (Minn. July 20, 2010). Once this
court determines as a matter of law that the district court has identified proper grounds
justifying a challenged departure, the decision whether to depart is reviewed for an abuse
of discretion. Id.
Here, count one of the co mplaint charged appellant with first-degree criminal
sexual conduct under Minn. Stat. § 609.342, subd. 1(h)(iii) (2014), for having a
significant relationship where P.J.C. was under the age of 16 at the time of penetration
and the abuse involved multiple acts committed between March 20, 2014, and September
20, 2014. In sentencing appellant on this count, the district court stated that the 276-
month sentence was “based on a criminal history score of zero and, also, in consideration
of the aggravating factor which was found by the jury, also, of multiple forms of
penetration.”
Appellant argues that the district cour t abused its discretion by imposing a 276-
month sentence on count one because, although the district court recited the aggravating
facts found by the jury, it did not explain why these facts constituted a substantial and
compelling reason to impose an upward departure. We disagree. The sentencing
guidelines contain a nonexclusive list of aggravating factors that may justify an upward
durational departure. Minn. Sent. Guidelines 2.D.3.b (2014). One of these factors is that
5
the victim was treated with particular cruelty. Minn. Sent. Guidelines 2.D.3.b.(2). In
Rourke, the supreme court discussed whether this factor is an “additional fact” that is
required to be “submitted to the jurors in a Blakely trial1 or a ‘reason’ which explains why
the additional facts provide the district court a substantial and compelling reason or basis
to impose a sentence outside the range on the grid, and which are outside the purview of
a Blakely jury.” 773 N.W.2d at 920 (footnote added). Relying on the language of the
sentencing guidelines, the supreme court concluded
that the particular cruelty aggrav ating factor is a reason that
explains why the additional facts found by the jury provide the
district court a substantial and compelling basis for imposition
of a sentence outside the range on the grid. This conclusion is
consistent with our past descri ptions of aggravating factors
as reasons explaining why the facts of the case provide the
district court a substantial a nd compelling basis to impose a
sentence outside the range on the grid.

Id.
Here, in addition to finding appellant guilty of first-degree criminal sexual
conduct, the jury also found that appellant subjected the victim to “multiple forms of
penetration.” It is well settled that “multiple forms of penetration is a valid aggravating
factor in first-degree criminal sexual conduct cases.” State v. Yaritz, 791 N.W.2d 138,
145 (Minn. App. 2010) (quotation omitted), review denied (Minn. Feb. 23, 2011); see
State v. Adell, 755 N.W.2d 767, 770, 775-76 (Minn. App. 2008) (stating that “multiple

1 See Blakely v. Washington, 542 U.S. 296, 301, 303-04, 124 S. Ct. 2531 (2004)
(explaining that any fact, other than a prior conviction, that is necessary to support a
sentence exceeding the maximum authorized by the facts established by a guilty plea or a
guilty verdict must be admitted by the defendant or proved to a jury beyond a reasonable
doubt).
6
penetrations alone will generally justify a double . . . upward durational departure” and
affirming 288-month sentence, a departure from presumptive 144-month sentence, for
first-degree criminal sexual conduct based on factors of physical injury to victim and
multiple forms of penetration (quotation omitted)), review denied (Minn. Nov. 25, 2008).
The district court then cited the “multiple forms of penetration” as “the aggravating factor
which was found by the jury” as justification for imposing the upward departure.
Although some further explanation may have been helpful, under Rourke, no further
explanation was necessary because the aggravating factor of multiple forms of
penetration is the reason that explains why the additional facts found by the jury affords
the district court with a substantial and compelling basis for departing upwardly. See 773
N.W.2d at 920. Therefore, the district court’s imposition of an upward departure on
count one was not an abuse of discretion.
II.
Appellant argues that his 420-month sentence, which includes a “mix of an
upward durational departure” and a permissive consecutive sentence, “unfairly
exaggerates the degree of [his] criminality.” This court reviews a district court’s decision
to impose permissive consecutive sentences for an abuse of discretion. State v. Vang,
774 N.W.2d 566, 584 (Minn. 2009). “A [district] court’s decision regarding permissive,
consecutive sentences will not be disturbed unless the resulting sentence unfairly
exaggerates the criminality of the defendant’s conduct.” State v. Hough, 585 N.W.2d
393, 397 (Minn. 1998). Past sentences imposed on similarly situated defendants provide
7
guidance in determining whether a sentence exaggerates the criminality of a defendant’s
conduct. Id.
In State v. Perleberg, the defendant sexually abused his teenage daughter “in many
forms, over several years, on at least 250 occasions, including Christmas day, and often
in the family home or during regularly scheduled errands.” 736 N.W.2d 703, 706 (Minn.
App. 2007), review denied (Minn. Oct. 16, 2007). The defendant was convicted of six
counts of first-degree criminal sexual conduct, and on appeal this court affirmed the
district court’s imposition of three consecutive sentences totaling 432 months
imprisonment. Id. at 707; see also State v. Bauer, No. A07-1836, 2009 WL 112842, at
*8 (Minn. App. June 20, 2009) (affirming consecutive sentences totaling 288 months
following convictions of two counts of first-degree criminal sexual conduct because the
sentences did not exaggerate the criminality of the defendant’s conduct of sexually
abusing the 12-year-old neighbor girl on at least four different occasions).
Here, appellant’s conduct consisted of sexually abusing his step-daughter in many
different forms. The abuse took place over the course of several years, at the family
home, often when C.A. went to the grocery store. This conduct is akin to the conduct
perpetrated in Perleberg, for which the defendant received a sentence similar to that of
appellant’s. See 736 N.W.2d at 706. And, although the number of estimated acts of
abuse was higher in Perleberg than the number of acts proved in this case, appellant’s
conduct is no less egregious. Appellant engaged in various types of penetration with
P.J.C., including anal penetration. The record also reflects that the sexual abuse began
8
when P.J.C. was five or six years old. Finally, the record reflects that P.J.C. has a
sexually transmitted disease.
We acknowledge that the imposition of consecutive sentences, which increased
appellant’s total aggregate sentence to 420 months, may seem excessive, particularly in
light of State v. Suhon, in which the defendant received three consecutive sentences
totaling 278 months for committing an “estimated 832 acts of sexual abuse on his
daughter over a ten-year period.” 742 N.W.2d 19, 25 (Minn. App. 2007), review denied
(Minn. Feb. 19, 2008). But the district court has a unique perspective on all stages of a
case, including sentencing, and it is in the best position to evaluate the offender’s conduct
and weigh sentencing options. Hough, 585 N.W.2d at 397. Moreover, it is well settled
that the district court’s discretion to impose consecutive sentences is very “broad.”
Perleberg, 736 N.W.2d at 703. Accordingly, in light of the district court’s broad
sentencing discretion, appellant’s egregious conduct, and the similarities between this
case and Perleberg, we conclude that the permissive consecutive sentence imposed here
does not exaggerate the criminality of appellant’s conduct.
III.
“A crime victim has the right to receive restitution as part of the disposition of a
criminal charge.” State v. Terpstra, 546 N.W.2d 280, 282 (Minn. 1996) (quotation
omitted); Minn. Stat. § 611A.04, subd. 1(a) (2014) (stating that a district court may order
a criminal to pay his victim’s restitution). “The primary purpose of restitution is to
restore crime victims to the same financial position they were in before the crime.” State
9
v. Johnson, 851 N.W.2d 60, 65 (Minn. 2014). District courts have broad discretion in
awarding restitution. State v. Tenerelli, 598 N.W.2d 668, 671 (Minn. 1999).
Appellant argues that the district court “abused its discretion by ordering
restitution to remain open indefinitely.” Conversely, the state argues that appellant has
“forfeited” his restitution argument by failing to raise it below.2
Generally, “[a]n offender may challenge restitution, but must do so by requesting a
hearing . . . within 30 days of sentencing . . . . A defendant may not challenge restitution
after the 30–day time period has passed.” Minn. Stat. § 611A.045, subd. 3(b) (2014).
But the supreme court has held that a restitution challenge to the district court’s legal
authority to award restitution, not to the amount or type of restitution, is not subject to the
30-day time limit. State v. Gaiovnik, 794 N.W.2d 643, 647, 649 (Minn. 2011). In that
case, the supreme court reasoned that requiring a defendant to comply with the 30-day
time limit conflicts with Minn. R. Crim. P. 27.03, which permits a defendant to raise
other sentencing issues at the sentencing hearing and have those issues reviewed in a
direct appeal from the judgment of conviction. Id. at 648. A defendant may, therefore,
preserve a challenge to the district court’s legal authority to award restitution by raising
the issue at sentencing without submitting a written challenge within 30 days. Id. at 649.

2 The state also contends that even under a plain-error analysis, appellant’s restitution
argument fails. But in State v. Thole, this court explained that the plain-error analysis is
limited to trial errors. 614 N.W.2d 231, 235 (Minn. App. 2000). Thus, the plain-error
analysis is not applicable to appellant’s restitution argument.

10
Here, the district court ordered appellant to pay restitution of $11,344.23 and left
restitution open “indefinitely” at the state’s request due to additional costs anticipated in
connection with P.J.C.’s continuing medical treatment. But appellant did not object to
the district court’s restitution order. Instead, the record here reflects that appellant’s
restitution argument is raised for the first time in this appeal. The supreme court in
Gaiovnik, acknowledged that a challenge to the legal authority of the court to order
restitution must be raised in the district court. 794 N.W.2d at 648. Ordinarily, this court
does not consider issues raised for the first time on appeal. State v. Williams, 794
N.W.2d 867, 874 (Minn. 2011). Accordingly, appellant has forfeited the argument.
Moreover, even if we were to address the question on the merits, appellant raises
no issue concerning the current restitution award of $11,344.23. His argument is limited
to speculation that, should additional amounts be awarded in the future, the further award
might be improper. Presumably, the district court will comply with Minn. Stat.
§ 611A.04, subd. 1(b) (2014), which permits amendment of a restitution award so long as
appellant remains committed to the Commissioner of Corrections, is on probation, or is
on supervised release. If an amendment to the award were attempted after the expiration
of the prescribed time period, the amendment would be improper. But, unless and until
there is some restitution award that is made other than in compliance with the statute,
there is nothing for us to review.
IV.
“Evidentiary rulings rest within the soun d discretion of the [district] court and will
not be reversed absent a clear abuse of discretion.” State v. Amos, 658 N.W.2d 201, 203
11
(Minn. 2003). On appeal, the appellant bears the burden of establishing that the district
court abused its discretion and that the appellant was prejudiced as a result. Id.
Appellant argues that the district court abused its discretion by admitting P.J.C.’s
videotaped statement because the statement was inadmissible under rules 807 and
801(d)(1)(B) of the Minnesota Rules of Evidence. But appellant concedes that he “did
not object” to the admission of this evidence. Where a defendant fails to object to the
admission of evidence, this court may review appellant’s claim under the plain-error
standard. State v. Dao Xiong, 829 N.W.2d 391, 395 (Minn. 2013). “The plain error
standard requires that the defendant show: (1) error; (2) that was plain; and (3) that
affected substantial rights.” State v. Strommen, 648 N.W.2d 681, 686 (Minn. 2002). If
all three prongs of the plain-error analysis are satisfied, the reviewing court “may correct
the error only if it seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” State v. Washington-Davis, 881 N.W.2d 531, 541 (Minn. 2016).
“‘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). Hearsay is inadmissible unless an exception applies. Minn. R. Evid.
802. But a hearsay statement may be admitted if (1) it has “equivalent circumstantial
guarantees of trustworthiness” to statements covered by enumerated hearsay exceptions;
(2) it is offered as evidence of a material fact; (3) it is “more probative on the point for
which it is offered than any other evidence which the proponent can procure through
reasonable efforts”; and (4) admitting the statement will best serve the general purposes
12
of the evidentiary rules and the interests of justice. Minn. R. Evid. 807; see State v.
Ahmed, 782 N.W.2d. 253, 259 (Minn. App. 2010).
The only factor challenged by appellant is the trustworthiness of P.J.C.’s
statement. To determine whether the extrajudicial statement has circumstantial
guarantees of trustworthiness equivalent to other hearsay exceptions, we follow the
totality-of-the-circumstances approach, accounting for “all relevant factors bearing on
trustworthiness.” State v. Robinson, 718 N.W.2d 400, 408 (Minn. 2006) (quotation
omitted). In child-abuse cases, Minnesota caselaw enumerates several relevant
circumstances:
whether the statement was spontaneous, whether the
questioner had a preconceived idea of what the child should
say, whether the statement was in response to leading
questions, whether the child had any apparent motive to
fabricate, whether the statemen ts are of the type one would
expect a child of that age to fabricate, whether the statement
remained consistent over time, and the mental state of the child
at the time of the statements.

Ahmed, 782 N.W.2d at 260 (“The relevant circumstances under rule 807 are those
circumstances actually surrounding the making of the statements.” (quotation omitted));
see also Robinson, 718 N.W.2d at 410 (applying these factors to assess extrajudicial
statement).
Based on the relevant circumstances, P. J.C.’s statement bears the circumstantial
guarantees of trustworthiness. In fact, appellant does not challenge any of the above-
mentioned circumstances. Instead, he argues that based on the Ortlepp factors, P.J.C.’s
statement was unreliable because (1) she was not subject to “meaningful cross-
13
examination” since her testimony did not cover the details of the alleged sexual abuse;
(2) the statement was “not against her penal interests”; and (3) her prior statement “was
not consistent with her trial testimony.” See State v. Ortlepp, 363 N.W.2d 39, 44 (Minn.
1985) (relying on the following factors in concluding that a statement had circumstantial
guarantees of trustworthiness: (1) the witness was available for cross-examination;
(2) the witness admitted making the statement; (3) the statement was against the
witness’s penal interest; and (4) the statement was consistent with other evidence
introduced by the state). But the Ortlepp factors are not applicable here because in
Ortlepp, the state’s witness recanted his prior statement at trial that incriminated both
himself and the defendant. 363 N.W.2d at 44. In contrast, P.J.C. did not recant her
earlier video-recorded statement.
The record reflects that in admitting P. J.C.’s statement under the residual hearsay
exception, the district court contemplated the relevant factors and concluded that (1) the
statements “will be offered as evidence of a material fact”; (2) the statements “are more
probative on the point for which they will be offered (specifically to show that . . . P.J.C.
has been consistent in her statements, which is relevant to credibility) than any other
evidence which the State can procure through reasonable efforts”; and (3) the “general
purposes of the Rules of Evidence and the interests of justice will best be served by
admission of the statements into evidence.” Appellant is unable to show that this
decision was an abuse of discretion. Therefore, the district court did not plainly err by
admitting P.J.C.’s videotaped statement. And because the videotaped statement was
14
admissible under rule 807, we need not address the admissibility of the statement under
rule 801(d(1)(B).3
Affirmed.

3 We have fully considered the arguments raised in appellant’s pro se supplemental brief
and conclude that they are without merit.