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This opinion will be unpublished and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
A17-0242

State of Minnesota,
Respondent,

vs.

Ricardo Ramirez,
Appellant.

Filed January 16, 2018
Affirmed
Jesson, Judge

Steele County District Court
File No. 74-CR-15-440

Lori Swanson, Attorney General, Karen McGillic, Assistant Attorney General, St. Paul,
Minnesota; and

Dan McIntosh, Steele County Attorney, Owatonna, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Publ ic Defender, Veronica M. Surges, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Connolly, Presiding Judge; Jesson, Judge; and Florey,
Judge.
U N P U B L I S H E D O P I N I O N
JESSON, Judge
Without permission, a ppellant Ricardo Ramirez entered the home of his ex -
girlfriend, whom he suspected stole his cellphones, and threatened her. The state charged
2
him with first-degree burglary and fifth-degree assault. During the bench trial, there were
numerous incidents where the state’s witnesses testified about prior bad acts and
relationship evidence. Ramirez was convicted, and at his sentencing hearing, he moved
for both durational and dispositional departures based on his crime being less serious than
typical and his amenability to probation. The d istrict court denied the motion s. Now on
appeal, Ramirez argues that he is entitled to a new trial because the prosecution committed
misconduct by not adequately preparing its witnesses and by eliciting improper testimony,
and that the district court abused its discretion in denying his sentencing-departure motions.
We affirm.
FACTS
In March 2015, officers responded to a reported domestic assault in progress at the
home of appellant Ricardo Ramirez’s ex-girlfriend, T.W., and her boyfriend, H.B. Officers
spoke with H.B., who stated that Ramirez entered the home without permission and
accused the ex -girlfriend of stealing his cell phones. Officers also spoke with the ex -
girlfriend, who said that Ramirez threatened her several times and grabbed her hood at one
point. Ramirez stated that he did not touch his ex-girlfriend and was there looking for his
cell phones. The police squad car video and audio showed Ramirez asking law
enforcement to retrieve his cell phone s, and stating, “I didn’t touch that f -cking b-tch, but
I will when I get out. Watch. I’m gonna send someone to f-ck her up.”
The next day, Ramirez was charged with first -degree burglary, second -degree
burglary, and fifth-degree assault – fear of bodily harm or death. Minn. Stat. §§ 609.582,
subds. 1(c) (first-degree burglary), 2(a)(1) (second-degree burglary), .224, subd. 1(1) (fifth-
3
degree assault – fear of bodily harm or death) (2014). Ramirez elected to have a bench
trial. Prior to trial, the state filed a notice of its intent to introduce relationship evidence
between Ramirez and his ex-girlfriend, under Minnesota Statutes section 634.20 (2016).1
On the morning of trial, the district court considered the parties’ motions in limine,
including the state’s request to admit relationship evidence. The relationship evidence
included incidents where Ramirez locked T.W. in a bedroom, attempted to poison her,
intimidated her with knives, and hit her. The court denied the state ’s motion to include
relationship evidence because the case did not involve domestic abuse.2 After this ruling,
the state requested a break to “discuss the motions in limine and what can and cannot come
out.” Both parties assert this break was for the pr osecution to prepare its witnesses. This
break lasted three minutes, after which the trial began.
The bench trial lasted two days, and Ramirez , T.W., and H.B. all testified, in
addition to law enforcement. Ramirez and the witnesses gave contradicting testimony, but
the following facts are from the district court’s findings of fact, which are uncontested on
appeal.
At the time of the incident, T.W. was recovering from a major surgery to repair her
carotid artery and was living with her boyfriend . She went to Ramirez’s home one night

1 Minnesota Statutes section 634.20 states, “Evidence of domestic conduct by the accused
against the victim of domestic conduct, or against other family or household members, is
admissible unless the probative value is substantially outweighed by the danger of unfair
prejudice, confusion of the issue, or misleading the jury, or by considerations of undue
delay, waste of time, or needless presentation of cumulative evidence.”
2 Because it was not raised on appeal, we decline to determine if it was correct for the
district court to determine that the case here did not involve domestic abuse.
4
to smoke methamphetamine and took a few of his cell phones when she left. After realizing
his cell phones were gone, Ramirez went to T.W.’s home and entered without permission.
Ramirez began to yell once in side the apartment, and when he found her, he grabbed her
throat while threatening to harm her. Moments later, Ramirez pulled her hood backwards,
which caused her to fall onto a staircase. Police arrived and witnessed Ramirez acting irate
and threatening to harm T.W.
During trial, T.W. and H.B. testified to prior incidents that were prohibited by the
district court’s order. This testimony included past incidents of Ramirez b eing violent,
locking T.W. in a bedroom, and assaulting her. Much was unsolicited, but some was
arguably elicited by the prosecutor’s questions. For example:
Q [Prosecutor]: Was Mr. Ramirez outside the bedroom at that
time?

A [T.W.]: Yes. He continued to scream. He continued to
swear. He continued to try to taunt me, and I was -- I don’t
know. I wanted to fight him back. I was sick of -- I was sick
of being the victim. I wanted a good slap at him, but I ended
up getting scared. And I just wanted to get out of the house,
and that’s when he grabbed my coat or my hoodie.

. . . .

Q: Okay. All right. So when you said you were sick of it, can
you explain that a little bit more.

A: Because, well, he had -- he’s assaulted me a lot in the past,
you know, and I’ve just -- it was my turn. I wanted to hit him
for once. He’s gotten away with a lot of crimes I guess, you
know.
5
Similarly, there were multiple incidents during trial where H.B. and T.W. testified about
Ramirez’s prior drug use, but the state did not provide notice of its intent to use prior bad
acts evidence in accordance with Minnesota Rules of Evidence 404(b). For example:
Q [Defense]: Why did you ask to go over to Mr. Ramirez's
residence that evening?

A [T.W.]: Because I didn’t have any painkillers and I was in a
lot of pain and I needed some meth. And he sells meth so that’s
where I went.
None of the testimony regarding prior bad acts or relationship evidence was objected to at
trial.
The district court convicted Ramirez of first -degree burglary, second -degree
burglary, and fifth -degree assault.3 After trial, but before sentencing, Ramirez’s counsel
filed a motion requesting that the court order a rule 20.01 examination to determine whether
Ramirez was competent to assist counsel, in light of learning that he was not receiving his
medication in jail. The court granted the motion. A forensic psychologist diagnosed
Ramirez with posttraumatic stress disorder, major depressive disorder, inhalant -induced
psychotic disorder (by history), and cannabis use disorder. The psychologist determined
that Ramirez was not competent to continue with the legal proceedings and recommended
medication and inpatient treatment to treat his mental illnesses. 4 The district court agreed
and ordered civil commitment proceedings against Ramirez to be commenced by the end

3 Ramirez initially argued that the district court erred by convicting him of both first-degree
and second-degree burglary. But the district court subsequently vacated the second-degree
burglary conviction, and Ramirez withdrew the issue from this appeal.
4 The evaluator also stated Ramirez expressed a desire to seek revenge on those who helped
get him incarcerated.
6
of November 2015. In May 2016, Ramirez was evaluated again and determined to be
competent, and in June 2016, the district court ordered Ramirez to be sentenced.
After he was determined to be competent, Ramirez filed a motion requesting both a
durational and dispositional departure from the sentencing guidelines. At the sentencing
hearing, Ramirez argued for a downward durational departure because his offense was less
serious than the typical burglary -assault case. Ramirez also contended a dispositional
departure should be granted under Minnesota Statutes section 609.1055 (2014) , which
could allow him to be sentenced to a secured, inpatient treatment facility , based on his
mental illness. The court denied the durational departure request, stating the crime was not
significantly less serious than typical, but arguably more serious. The court also denied
the dispositional departure request because it determined R amirez was not particularly
amenable to probation and that placement in a treatment facility would be inconsistent with
public safety. The court sentenced Ramirez to a middle-of-the-box presumptive sentence
of 88 months in jail for the first-degree-burglary conviction. This appeal follows.
D E C I S I O N
On appeal, Ramirez argues that he is entitled to a new trial because of prosecutorial
misconduct, and that the district court abused its discretion in denying his motion for a
downward sentencing departure. We address each argument in turn.
I. Ramirez is not entitled to a new trial because of prosecutorial misconduct.

Ramirez argues that he is entitled to a new trial because the prosecution committed
misconduct by failing to adequately prepare its witnesses and intentionally eliciting
inadmissible and prejudicial statements. Because Ramirez did not object at trial, this court
7
applies the modified plain-error test. State v. Ramey, 721 N.W.2d 294, 301 (Minn. 2006).
Under this test, Ramirez has the burden to demonstrate the alleged misconduct constitutes
(1) an error (2) that was plain. State v. Matthews, 779 N.W.2d 543, 551 (Minn. 2010). If
Ramirez meets both of these prongs, then the burden shifts to the state to demonstrate that
the error did not affect Ramirez’s substantial rights. Id. If all three prongs are satisfied ,
this court then assesses whether the error should be addressed to ensure fairness and
integrity. Id. Because the state can satisfy its burden by showing Ramirez’s substan tial
rights were not affected, assuming a plain error occurred, we determine that Ramirez fails
the modified plain-error test, without reaching the issue of whether a plain error was made.5
To show Ramirez’s substantial rights were not affected, the state must show “that
there is no ‘reasonable likelihood that the absence of the misconduct in question would
have had a significant effect on the verdict of the jury.’” Matthews, 779 N.W.2d at 5 51
(quoting Ramey, 721 N.W.2d at 302). Here, we conclude that Ramirez’s substantial rights
were not affected because (1) there was an overwhelming amount of evidence to support
his conviction, and (2) it was a bench trial with a low risk of unfair prejudi ce, and the
potentially impermissible evidence was not relied on by the district court.

5 Courts often resolve this analysis by determining whether the state can meet its burden to
show no substantial rights were affected. See State v. Mosley, 853 N.W.2d 789, 801 (Minn.
2014) (“Assuming without deciding the reference to drugs in [witness]’s direct
examination was plain error, we conclude that the testimony did not affect [defendant]’s
substantial rights.”). Even though we do not reach the issue of whether a plain e rror was
made, we do not minimize the responsibility that prosecutors have in preparing witnesses
and ensuring impermissible testimony does not come out during trial.
8
First, there was a wealth of evidence that Ramirez impermissibly entered the
residence and threatened his ex-girlfriend. This is similar to State v. McNeil, where this
court determined that the substantial rights of the appellant were not affected when there
was an overwhelming amount of evidence supporting the conviction. 658 N.W.2d 228,
232-33. To be convicted of first -degree burglary – assault, the state must est ablish that
(1) Ramirez entered his ex -girlfriend’s home without consent; (2) Ramirez intended to
commit a crime at time of entry or Ramirez committed a crime while in the building; and
(3) Ramirez assaulted his ex -girlfriend within the building. See State v. Mitchell , 881
N.W.2d 558, 562 (Minn. App. 2016), review denied (Minn. Aug. 23, 2016). Fifth-degree
assault – fear of bodily harm, requires the state to show Ramirez “commit[ted] an act with
intent to cause fear in another of immediate bodily harm or death.” Minn. Stat. § 609.224,
subd. 1(1).
Here, both T.W. and H.B. testified that Ramirez did not have permission to enter
the home. Ramirez testified that H.B. invited him into the home, but the district court
determined this was not credible , and we defer to the district court’s credibility
determinations. State v. Kramer , 668 N.W.2d 32, 38 (Minn. App. 2003) , review denied
(Minn. Nov. 18, 2003) . T.W. and H.B. also testified that Ramirez threatened T.W. and
attempted to harm her, to the point where she became fearful. Because the prosecution put
forth an overwhelming amount of evidence to support the required elements, the state’s
case was strong, and the impermissible testimony did not have a significant effect on the
outcome.
9
Second, this was a be nch trial, and the district court was already aware of the
inadmissible evidence by virtue of ruling on the motions in limine. As a result, the risk of
unfair prejudice was considerably lower than if it were a jury trial. In State v. Burrell, the
Minnesota Supreme Court emphasized the distinction between a jury trial and bench trial
is “important,” stating “[t]he risk of unfair prejudice . . . is reduced because there is
comparatively less risk that the district court judge, as compared to a jury o f laypersons,
would use the evidence for an improper purpose or have his sense of reason overcome by
emotion.” 772 N.W.2d 459, 467 (Minn. 2009). This is particularly true here, where the
district court’s finding of fact and conclusions of law do not refe rence the inadmissible
evidence. See Mosley, 853 N.W.2d at 803 (stating that when the district court made
detailed findings of fact with significant evidence pointing to the defendant’s guilt, and did
not include references to the inadmissible evidence, there was no reasonable likelihood that
the inadmissible evidence had a significant effect on the judge’s conclusion). Given the
absence of any findings on the inadmissible evidence, it is unlikely that the district court
relied on any of the inadmissible evidence or used it for improper purposes when
determining Ramirez was guilty.
Because there was no reasonable likelihood that the alleged misconduct by the
prosecutor had a significant effect on the guilty verdict, Ramirez’s substantial rights were
not affected and he is not entitled to a new trial based on prosecutorial misconduct.
10
II. The district court did not abuse its discretion by denying Ramirez’s motions
for durational and dispositional sentencing departures.

Ramirez contends that the district court abused its discretion by denying his motions
for both durational and dispositional departures and imposing a presumptive sentence. This
court will reverse sentencing decisions only for an abuse of discretion, and d istrict courts
are afforded great discretion. State v. Soto, 855 N.W.2d 303, 307-08 (Minn. 2014). Only
in a rare case will this court reverse a district court’s refusal to depart. State v. Kindem ,
313 N.W.2d 6, 7 (Minn. 1981). And “as long as the recor d shows the sentencing court
carefully evaluated all the testimony and information presented before making a
determination,” this court will not interfere with the district court’s decision. State v. Pegel,
795 N.W.2d 251, 255 (Minn. App. 2011).
Durational Departure
Ramirez argues that the district court abused its discretion in denying his motion for
a durational departure because his crime was less serious than the typical burglary – assault
crime. We disagree. The sentencing guidelines state that “convicted felons with relevant
sentencing criteria substantially different from a typical case should receive different
sanctions.” Minn. Sent. Guidelines 1.A (2014). But the seriousness of this crime is not
less than a typical burglary case – Ramirez entered a home without permission, threatened
to harm an individual , and had to be restrained. T he district court explicitly considered,
and rejected, this argument, stating:
[T]here might be an argument that this is more serious than
your typical crime given the vulnerability of the victim and the
. . . intensity of Mr. Ramirez’s desire to get at [T.W.] and the
luck of [T.W.] to have a couple people in the apartment who
11
stopped him on a couple of occasions from really getting to
[T.W.] . . . But the Court fo und that [Ramirez] was yelling
threats at [T.W.], stating that he would kill her, beat her ass,
he’d rip her throat out. And it goes without saying that [T.W.]
had recently undergone major surgery to repair her carotid
artery and was in stitches at that point and was really physically
quite vulnerable.
Ramirez contends that the district court abused its discretion because Ramirez did
not injure T.W. and because he entered the home to retrieve his stolen property. But neither
of these reasons make the crime significantly less serious than typical. While Ramirez is
correct that there is no evidence in the record suggesting T.W. was injured, this does not
change the fact that he violently and repeatedly threatened her. And Ramirez’s explanation
that he entered the home without permission to retrieve stolen property is similarly
unpersuasive, because, as the district court sensibly explained, Ramirez could have called
the police instead of entering someone’s home without consent and threatening the person.
Given that the district court explicitly considered this argument and explained why it was
rejected, the district court acted within its wide discretion.
Dispositional Departure
Ramirez argues that the district court abused its discretion in denying his motion for
a dispositional departure under Minnesota Statutes section 609.1055 because he has severe
and persistent mental illnesses , and he is particularly amenable to secured treatment in a
probationary setting. When an offender has “a serious and persistent mental illness,”
district courts may, when consistent with public safety, “place the offender on probation or
continue the offender’s probation and require as a condition of the probation that the
offender success fully complete an appropriate supervised alternative living program
12
having a mental health treatment component.” Minn. Stat. § 609.1055. But this court has
held that , even if the offender meets the requirements of Minnesota Statutes section
609.1055, the district court still has discretion whether to grant the departure. State v. Abdi,
855 N.W.2d 546, 548 (Minn. App. 2014), review denied (Minn. Jan. 20, 2015).
The district court offered a thorough and detailed explanation as to why it denied
Ramirez’s motion. The court explained that Ramirez was not particularly amenable to
probation; granting the departure was inconsistent with public safety; Ramirez historically
has not sought treatment or services provided to him unless it was after being charged with
a crime; and Ramirez’s prior record, remorse levels, attitude, and cooperation weighed
against him . The court considered the presentence investigation report ( PSI), which
acknowledged Ramirez’s mental-health issues, but stated that he refused to utilize available
resources to help him in the past. The report also mentioned that Ramirez had no remorse
and wishes harm on the victim. And the district court emphasized its concern that it would
have no control over how long Ramirez would be in a treatment facility.
Ramirez further contends that the district court erred by failing to attribute his poor
conduct to his mental illnesses. Ramirez points to the district court’s orders regarding the
civil commitment proceeding and the rule 20.01 report to show th at he had severe and
persistent mental-health issues. But the district court was within its discretion to determine
Ramirez was responsible for his actions , and this court will not substitute its judgment in
place of the trial court. See State v. Marchbanks, 632 N.W.2d 725, 731 (Minn. App. 2001)
(“A district court has great discretion in sentencing, and we may not substitute our own
judgment for that of the district court.”).
13
Finally, Ramirez argues that a mental health facility would be much bett er suited
for him than a prison term. While there may be an argument that a treatment facility would
be more beneficial to Ramirez, the district court determined placing Ramirez in a treatment
facility would be inconsistent with public safety, which is a requirement to grant a
departure under Minnesota Statutes section 609.1055. And even if the district court
determined Ramirez was amenable to treatment, it is still within the district court’s
discretion to deny the motion. See Abdi, 855 N.W.2d at 548.
Because the district court thoroughly explained numerous reasons for its decision
and determined Ramirez was not particularly amenable to individualized treatment in a
probationary setting, it acted appropriately. Ramirez is not entitled to be resentenced.
Affirmed.