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This opinion will be unpublished and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
A16-1823

State of Minnesota,
Respondent,

vs.

Cristian Albert Genchi-Ramirez,
Appellant.

Filed October 30, 2017
Affirmed
Peterson, Judge

Anoka County District Court
File No. 02-CR-14-708

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

Anthony C. Palumbo, Anoka County Attorney, Kelsey R. Kelley, Assistant County
Attorney, Anoka, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Julie Loftus Nelson, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Halbrooks, Presiding Judge; Peterson, Judge; and Smith,
Tracy M., Judge.
U N P U B L I S H E D O P I N I O N
PETERSON, Judge
In this appeal from convictions of first -degree criminal sexual conduct, appellant
argues that (1) the district court abused its discretion by allowing the prosecution to present

2
a “why would she lie” argument to the jury during closing argument and (2) the prosecutor
committed misconduct by telling the jury that (a) appellant was guilty because he ran from
police and (b) it had to choose whether to believe the victim or appellant. We affirm.
FACTS
In October 2005, appellant Cristian Genchi-Ramirez began living with his
girlfriend, C.S.M., and her daughter, L.D.S. The relationship between appellant and
C.S.M. ended in October 2013, and C.S.M. and L.D.S. moved into their own residence. In
January 2014, L.D.S. went to a school counselor’s office and reported that appellant had
been sexually abusing her. The counselor reported the allegations to law enforcement.
In a statement to Anoka County Sheriff’s Detective Dan Douglas, L.D.S. reported
that when she was 11 years old, appellant came into the be droom where she was taking
care of her younger brother, pushed her down, and touched her private parts over her
clothing. L.D.S. threatened to start screaming, and appellant ran out of the room. L.D.S.
thought that appellant had been drinking because he smelled like alcohol. The second act
of sexual abuse occurred a couple of months later, and L.D.S. specifically described to
Douglas what appellant did to her. L.D.S. stated that appellant then sexually abused her
once a week until October 2013, and she gave examples of the acts that he committed.
L.D.S. was referred to Midwest Children’s Resource Center (MCRC), where a nurse
interviewed her. L.D.S. described to the nurse the acts that appellant committed, and the
descriptions were consistent with her s tatement to Douglas, although less detailed .1 The

1 L.D.S.’s trial testimony was consistent with her statements to Douglas and the nurse. She
also provided additional details that she had not previously disclosed.

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doctor who examined L.D.S. diagnosed her with a n injury that is consistent with sexual
abuse. The doctor testified that when reporting is delayed, an injury that would come from
sexual abuse will be found in only three to four percent of cases, although that percentage
is slightly higher for children after puberty. The doctor was unable to provide a timeframe
for when the injury occurred.
The day after he interviewed L.D.S., Douglas called appellant and left a voicemail
requesting that appellant contact him. Douglas did not say why he wanted to talk to
appellant. Appellant did not return Douglas’s call, so Douglas went to the residence where
appellant had lived with C.S.M. and left his business card. Douglas later learned from the
property manager that appellant no longer lived there.
In March or April 2014, C.S.M. told Douglas that appellant was working at a
restaurant in Columbia Heights. Dougla s had only an old driver’s license picture of
appellant, so he was uncertain what appellant looked like in 2014. Douglas went to the
restaurant and asked the first person he saw, “Are you Cristian?” The man said, “No.”
Within a couple of minutes, Dougla s realized that the man was gone. The restaurant
manager confirmed that the restaurant had hired appellant but said that the restaurant had
no contact information for him.
In late December 2014, C.S.M. told Douglas that appellant had contacted her about
visiting their son. C.S.M. arranged a meeting with appellant, and Douglas came to the
meeting place and arrested appellant.
Appellant was charged with two counts of first -degree criminal sexual conduct.
Before trial, he moved to exclude evidence that he had avoided contact with law

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enforcement. He argued that the avoidance was due to his status as an undocumented alien
and, therefore, did not go to consciousness of guilt. He also moved to preclude the
prosecutor from arguing that L.D.S. had no motive to lie. The district court denied
appellant’s motions. The case was tried to a jury, which found appellant guilty as charged.
This appeal followed sentencing.
D E C I S I O N
I.
Appellant argues that the district court erred by denying his motion to p reclude the
prosecutor from arguing that L.D.S. had no motive to lie. We review the district court’s
denial of that motion for an abuse of discretion. See State v. Thomas, 305 Minn. 513, 515-
16, 232 N.W.2d 766, 768 (1975) (stating that when a prosecutor plans to use a questionable
statement in argument, the statement “should first be discussed in chambers with the
[district court] so that the [district court] may exercise [its] discretion as to whether such a
statement should be included”). “A [district] court abuses its discretion when its decision
is based on an erroneous view of the law . . . .” Riley v. State, 792 N.W.2d 831, 833 (Minn.
2011).
During closing argument, the prosecutor argued:
[L.D.S.’s] testimony is believable. She had every
reason not to tell an adult. She wasn’t trying to get [appellant]
into trouble. She wasn’t trying to find the first adult she could
tell. She was telling you, I don’t want to upset this household.
I don’t know what this is going to do to my brother. I don’t
know what this is going to do to my mom. I’m not ready to
tell.

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Her demeanor in court. She was embarrassed. You saw
that. She was sad and she was genuine.

Think about all of the things that [L.D.S.] told you that
she went through, all of the things you heard that she went
through, and ask yourself, if that wasn’t the truth, why would
she go through it? Why would she go through that forensic
interview . . . ? Why would she at 13 years old [go through a
physical sexual -assault examination] and talk about what
happened if it wasn’t true ? What 13 -year-old would subject
themselves to that if what she was telling you isn’t true?

Think about the sensory detail that [L.D.S.] provided.
When she testified, she told you how it felt. She told you how
it felt during, after[.] . . . That kind of sensory detail is detail
from somebody that had experienced something. This isn’t
made up. This is experience.

The prosecutor also addressed evidence of changes in L.D.S.’s emotional state,
specifically (1) her cousin’s testimony that L.D.S.’s personality “went from bright, funny,
laughing” to “serious, calm and stressed” and (2) L.D.S.’s statements to Douglas and the
doctor that she “started cutting on her arm” and was thinking about killing herself. The
prosecutor then stated, “No person on the face of the planet would go through this unless
they were telling the truth.” Finally, in addressing L.D.S.’s credibility, the prosecutor noted
(1) the timing of her disclosure, specifically, that she had been living apart from appellant,
but then he started coming around again, and (2) the fact that L.D.S. testified that no abuse
occurred during a trip out of state, no ab use occurred during the week they moved out of
appellant’s residence, and appellant committed one type of sex act only once.
Appellant argues that the prosecutor’s argument was similar to “were they lying”
questions typically asked of defendants on cross -examination. “As a general rule, ‘were
they lying’ questions have no probative value and are improper and argumentative because

6
they do nothing to assist the jury in assessing witness credibility in its fact-finding mission
and in determining the ultimate issue of guilt or innocence.” State v. Pilot , 595 N.W.2d
511, 518 (Minn. 1999); see also State v. Morton , 701 N.W.2d 225, 235 (Minn. 2005)
(stating that “were they lying” questions “shifted the jury’s focus by creating the
impression that the jury must c onclude that these two witnesses were lying in order to
acquit [the defendant]”).
In addressing the propriety of “were they lying” questions, the supreme court stated:
The general concern about “were they lying” questions is that
asking one witness to exp ress an opinion as to the veracity of
another witness calls for improper comment on another
witness’ testimony, and that it is the province of the jury to
determine the credibility of witnesses. Further, it is perceived
as unfairly giving the jury the impressions that in order to
acquit, they must determine that witnesses whose testimony is
at odds with the testimony of the defendant are lying.

Pilot, 595 N.W.2d at 516 (citations omitted) (footnote omitted).

The prosecutor’s argument was not similar to “were they lying” questions. The
prosecutor was not asking for a comment on a nother witness’s veracity or saying that
L.D.S.’s testimony was sufficient to convict appellant. Rather, t he questions about why
L.D.S. would have put herself through the foren sic interview and physical examination if
she had not been sexually abused were asked in the context of providing the jury with
reasons to find L.D.S.’s testimony credible and were part of a longer argument that listed
several additional reasons why the jury should find her testimony credible. Because the
argument addressed L.D.S.’s credibility and not another witness’s veracity or the burden
of proof, the district court did not abuse its discretion in allowing it.

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II.
Appellant argues that the prosecutor’s arguments that appellant showed
consciousness of guilt by avoiding law enforcement and that the jury had to choose whether
to believe L.D.S. or appellant were misconduct that impermissibly shifted the burden of
proof. Appellant did not object to the ar guments. An appellate court applies “the plain
error doctrine when examining unobjected-to prosecutorial misconduct.” State v. Ramey,
721 N.W.2d 294, 29 6 (Minn. 2006). “[B]efore an appellate court reviews unobjected-to
trial error, there must be (1) error, (2) that is plain, and (3) affects substantial rights. ” Id.
at 302. “[T]he burden [is] on the nonobjecting defendant to demonstrate both that error
occurred and that the error was plain.” Id. If “the defendant demonstrates that the
prosecutor’s conduct constitutes an error that is plain, the burden . . . shift[s] to the state to
demonstrate . . . that . . . the misconduct did not affect [the defendant’s] substantial rights.”
Id. (quotation and citations omitted).
Due process requires the state to prove “each element of the crime charged beyond
a reasonable doubt.” State v. Merrill, 428 N.W.2d 361, 366 (Minn. 1988). “Prosecutors
improperly shift the burden of proof when they imply that a defendant has the burden of
proving his innocence.” State v. Jackson, 773 N.W.2d 111, 122 (Minn. 2009). But “the
state may argue that particular witnesses were or were not credible.” State v. Lopez-Rios,
669 N.W.2d 603, 619 (Minn. 2003).
“[T]he prosecutor and the defense have considerable latitude in closi ng argument,
for neither is required to make a colorless argument.” State v. Smith, 541 N.W.2d 584, 589
(Minn. 1996). A prosecutor may argue all reasonable inferences that may be drawn from

8
the evidence. State v. Bobo, 770 N.W.2d 129, 142 (Minn. 2009). But a prosecutor may
not obtain a conviction at any price, for example, by intentionally misstating the evidence
or misleading the jury about the inferences to be drawn from the evidence. State v. Peltier,
874 N.W.2d 792, 805 (Minn. 2016).
During closing argument, the prosecutor argued:
Think about [appellant] now. Guilty people run, guilty
people hide. You don’t have to believe for one second that this
man who has been in the United States for 24 years, working
all over Minnesota, driving around with a valid driver’s license
is all of a sudden afraid because he’s undocumented. You
don’t have to believe that for one second. Guilty people run
and guilty people hide. And as soon as he caught wind of
[L.D.S.] talking to a sheriff’s detective, he ran a nd he hid. He
ran from the detective. He lied to the detective, said, I’m not
Cristian, and then he ran out the back of that restaurant. It took
a setup of having mom tell [ appellant] he was going to come
and visit his son for the police to locate him.

You can’t believe both versions. You have to choose
who you’re going to believe. Because in this case [ appellant]
says during this whole time that [L.D.S.] came in here and told
you about the sexual abuse, I barely [saw] her. . . . Well, that
can’t be true if what [L.D.S.] is saying is true. And what
[L.D.S.] is saying is true can’t be true if what [ appellant] is
saying is true. And I submit that it is very easy to find out who
is telling the truth. And it is not [appellant], because guilty
people run and guilty people hide.

You must judge his credibility. You must. You’ve
heard some instructions about he doesn’t have to testify, but
now that he has, you must judge his credibility. . . . He does
not get extra credibility points because he decid ed to
testify. . . .

He came up here this morning and he told you
conveniently, oh, the last time I spent any time with [L.D.S.]
was right before she turned 12. It was April; April 2012, right

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before she turned 12, so this isn’t possible. That’s
ridiculous. . . .

. . . .

You do not have to check your reason and common
sense at the door. And I’m asking you to apply it because
reason and common sense lead to one conclusion. He’s guilty.
He’s guilty. Guilty people run, guilty people hide. His story
doesn’t make any sense.

“Flight before apprehension or after arrest . . . is a circumstance to be considered—
not as a presumption of guilt, but as something for the jury to consider —as suggestive of
a consciousness of guilt . . . .” State v. McDani el, 777 N.W.2d 739, 746 (Minn. 2010)
(quotation omitted). Appellant argues that the prosecutor’s argument went beyond what is
permitted under McDaniel because the repeated assertions that “guilty people run and
guilty people hide” implied that his “flight , alone, was sufficient evidence to support a
conviction.” But, although the prosecutor repeatedly stated that “guilty people run” and
“guilty people hide,” the argument also addressed other reasons why appellant’s testimony
was not credible and did not imply that running and hiding alone was a sufficient basis to
convict appellant.
Appellant also argues that the portion of the argument about choosing who m to
believe was misconduct because it “misrepresented the state’s burden of pro of by
improperly equating the singular factor of [L.D.S.’s] truthfulness with [appellant’s] guilt.”
After addressing the elements of the offenses and acts that would prove them, the
prosecutor stated: “The testimony of [L.D.S.] does not require corrobora tion. If you
believe her, it is enough. It is proof beyond a reasonable doubt if you believe her.” The

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prosecutor then presented numerous reasons why the jury should find L.D.S.’s testimony
credible.
The prosecutor’s argument did not shift the burden of proof. The prosecutor did not
argue that, if appellant did not persuade the jury that his version of events was true, the jury
must find appellant guilty. Nor did the prosecutor argue that, if the jury found that appellant
was not credible, it must fi nd that L.D.S. was credible. The prosecutor argued that
appellant was not credible, that L.D.S. was credible, and, if the jury found L.D.S. credible,
it could find appellant guilty even if L.D.S.’s testimony was not corroborated . This
argument left the state with the burden of persuading the jury that L.D.S. was credible, and
the argument was not misconduct . Because the prosecutor did not commit misconduct,
appellant’s plain-error claim fails.
Also, the district court instructed the jury on the burden of proof, on the requirement
that jurors must determine whether the state proved appellant’s guilt beyond a reasonable
doubt, and on the jurors’ role to determine witness credibility. An appellate court assumes
that jurors follow the district court’s instructions. State v. Ferguson, 581 N.W.2d 824, 833
(Minn. 1998).
III.
In a pro se supplemental brief, appellant argues that he was denied his right to a fair
trial, but he does not explain how he was deprived of that right. An assignment of error
based on mere assertion and not supported by legal authority or argument is waived unless
prejudicial error is obvious on mere inspection. State v. Bartylla, 755 N.W.2d 8, 22 (Minn.
2008). It is not obvious how appellant was denied his right to a fair trial.

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Appellant also argues that his reasons for running were unrelated to guilt and that
he was not involved with L.D.S.’s mother after October 2011. These are credibility issues.
“Assessing witness credibility and the weight given to witness testimony is exclusively the
province of the jury.” State v. Pendleton, 759 N.W.2d 900, 909 (Minn. 2009).
Affirmed.