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This opinion will be unpublished and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
A17-0596

State of Minnesota,
Respondent,

vs.

Hector Rufino Vergara-Sanchez,
Appellant.

Filed February 12, 2018
Affirmed in part, reversed in part, and remanded
Larkin, Judge

Hennepin County District Court
File No. 27-CR-15-30451

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

Michael O. Freeman, Hennepin County Attorney, Michael Richardson, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

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

Considered and decided by Larkin, Presiding Judge; Bratvold, Judge; and Florey,
Judge.
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U N P U B L I S H E D O P I N I O N
LARKIN, Judge
Appellant challenges his conviction of first-degree controlled -substance sale,
arguing that the district court erred by admitting a squad-car video recording into evidence,
by allowing the jury to review the recording during deliberations , and by misstating the
law in its jury instruction regarding aiding and abetting. Appellant also argues that he is
entitled to resentencing under the Drug Sentencing Reform Act (DSRA). Because the
district court did not abuse its discretion by admitting the recording into evidence, because
any error in allowing the jury to review the recording was harmless, and because the district
court did not err in instructing the jury, we affirm in part. But because appellant is entitled
to resentencing under the DSRA -amended sentencing grid, we reverse his sentence and
remand for resentencing.
FACTS
Respondent State of Minnesota charged appellant Hector Rufino Vergara -Sanchez
with first -degree controlled -substance s ale. The complaint alleged that on October 23,
2015, officers conducted surveillance near 34th Street and Longfellow Avenue in
Minneapolis after receiving a tip from a confidential reliable informant (CRI) that a drug
transaction involving a large amount of methamphetamine was going to take place. The
CRI described one of the individuals involved in the transaction, reported that he would be
driving a silver minivan, and identified its license plate number. Officers observed a
minivan near 34th Street and Cedar Avenue. The minivan and its driver matched the CRI’s
descriptions.
3
The minivan parked at 34th Street and Longfellow Avenue. Officers observed a red
SUV pull up next to the minivan, make contact with its driver, and park nearby. The
minivan’s driver got out of the minivan and into the backseat of the red SUV. Officers
approached and arrested the driver of the minivan, who m they identified as Luis Antonio
Pimentel; the driver of the red SUV, who m they identified as Vergara -Sanchez; and the
passenger in the red SUV , who m they identified as Moisius Perez -Ochoa. Vergara-
Sanchez was the registered owner of the red SUV. The officers searched the red SUV and
found a bag on the floor behind the driver’s seat con taining 465 grams of
methamphetamine in a plastic container . Officers also found 15.4 grams of
methamphetamine in Pimentel’s jacket.
The case was tried to a jury. During trial, the state added a charge of first-degree
controlled-substance possession. The jury found Vergara -Sanchez guilty of the sale and
possession charges, and Vergara-Sanchez moved for a new trial. The district court denied
Vergara-Sanchez’s new-trial motion, entered judgment of conviction on the first-degree
controlled-substance-sale offense, and sentenced him to a 94-month prison term. Vergara-
Sanchez appeals.
D E C I S I O N
I.
Vergara-Sanchez contends that the district court erred by admitting , over his
objection, “an audio and visual recording of statements made while [he], Perez-Ochoa and
Pimentel were in a police squad car,” arguing that the recording contains hearsay.
4
“‘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). “A ‘statement’ is (1) an oral or written assertion or (2) nonverbal conduct of
a person, if it is intended by the person as an assertion.” Minn. R. Evid. 801(a). If an “‘out
of court statement is being offered for some other purpose, such as to p rove knowledge,
notice or for impeachment purposes, it is not hearsay.’” State v. Hanley, 363 N.W.2d 735,
740 (Minn. 1985). Hearsay is inadmissible unless an exception to the hearsay rule applies.
Minn. R. Evid. 802; State v. Manthey, 711 N.W.2d 498, 504 (Minn. 2006).
“Evidentiary rulings rest within the sound discretion of the district court, and
[appellate courts] will not reverse an evidentiary ruling absent a clear abuse of discretion.”
State v. Ali, 855 N.W.2d 235, 249 (Minn. 2014). A district court abuses its discretion when
its ruling is “based on an erroneous view of the law or is against logic and the facts in the
record.” State v. Bustos, 861 N.W.2d 655, 666 (Minn. 2015) (quotation omitted).
The statements at issue here were recorded in a police squad car where officers
detained Vergara-Sanchez, Perez-Ochoa, and Pimentel after arresting them. The recording
shows the view out of the front of the squad car . The recording depicts officers stopping
the red SUV , handcuffing its three occupan ts, bringing two of the occupants back to the
squad car, searching the third occupant, and finding something in his jacket, which turned
out to be methamphetamine. The officer who performed the search testified that Pimentel
was the third occupant. Law enforcement placed Pimentel in the squad car with Vergara -
Sanchez and Perez-Ochoa.
5
The recording also includes audio from inside the squad car. The recording captured
the following conversation, which was translated from Spanish at trial by an i nterpreter
while the recording was played for the jury:
Don’t be saying that I knew. It f—ed up. It’s still not coming
out. Man, was it there.

Yes? Yes. They found it? Yes, they found it, yup, hell. Don’t
screw around, man. No. You f—ed up.

No, what the f—k. You got fingered.

That f—er ain’t worth s—t, man. You got fingered, man, yeah.

You screwed me. Me? Me? I don’t think so friend. No man.

I’m worse off, dude. I got my old lady and kids here, dude.
Me too, man. I got papers, dude. Huh?

I got papers, dude. Well, me too. And where, they got it?
We’re f—ed.

No, well, you f—ed up. Man, but, well. You, since last night,
since last night you knew it was there, you knew, you knew the
gig.

They were already waiting, f —er. How am I going to know,
man.

And how am I going to know, man, I swear by my daughters I
didn’t. Don’t make me take the fall because I’m not going to
say nothing.

The officer who provided foundation for the recording testified that he did not overhear the
conversation in the squad car and could not identify the speakers. 1

1 None of the occupants of the squad car testified at trial.
6
The district court overruled Vergara-Sanchez’s objection to the recording, reasoning
as follows:
I’m going to find that first of all these statements are not even
assertions, I’ve got the translation, and if they are not assertions
they can’ t be offered for the truth and therefore they’re not
hearsay so I find there’s no hearsay issue. And I also, in getting
the translation also accept that they are not being offered for
the truth, they are being offered to show knowledge. That does
seem clear in the sense that they are all somehow involved.

The record supports the district court’s reasoning. The prosecutor discussed the
recording in his closing argument as follows:
It’s true the voices were not able to be identified. Again,
think of the circumstances of these individuals and think about
the translation of their conversation that you heard. It was three
men, all three, Mr. Vergara -Sanchez, Mr. Pimentel, and
Mr. Perez-Ochoa, all i n the back of that car and that
conversation was clearly between people who knew what was
going on and they knew that they had been caught. It was
serious, they were panicked, and that’s because they knew that
there was a pound of methamphetamine in the back of that car.

(Emphasis added.)
The prosecutor described the recording as a “conversation between three individuals
who knew that they were caught and who knew what they were caught for.” In his rebuttal
argument, the prosecutor argued:
While we don’t know who said what exactly, things like man
was it there, yes, yes they found it, yes they found it, hell, and
you, since last night you knew it was there, you knew, you knew
the gig. These statements show the state of mind of these
individuals. These three men are all on the same page, all
aware of what they were there to do and that was to do a drug
transaction.

(Emphasis added.)
7
The prosecutor’s statements show that the recording was offered to prove
knowledge, as the district court reasoned . Because the recorded statements were offered
to prove knowledge, they were not hearsay, and the district court did not abuse its discretion
by admitting the recording into evidence.
II.
Vergara-Sanchez contends that the district court “prejudicially erred by allowing
the jury to twice review the statements recorded in the police squad car during
deliberations.”
At the beginning of deliberations, the jury asked to review the squad-car recording.
Defense counsel objected to the jury ’s request , arguing that it “puts too much of an
emphasis on that exhibit and, you know, obviously I had a problem with the admission of
it in the first place so this would exacerbate the problems that were inherent in the Court’s
decision to allow it to be played in the first place.” The district court responded, “All right.
Well, for all the reasons I admitted it in the first place I will—I won’t give them a transcript
but I will replay just that portion of the video and have [the interpreter] translate just as he
did before.”
When the jury returned to the courtroom to review the recording , the jury’s
foreperson informed the district court that the jury “would like to hear [the recording] once
without the translation and then hear it back with it just so we can have a continuous flow.”
The district court played the portion of the recording containing the squad-car conversation
without translation and then played that same portion of the recording while the interpreter
8
translated. Defense counsel did not object to the rec ording being played without
translation.
The district court “may allow the jury to review specific evidence.” Minn. R. Crim.
P. 26.03, subd. 20(2). “Any jury review of . . . audio or video material, must occur in open
court.” Id., subd. 20(2)(b). In determining whether to allow the jury to review specific
evidence, the district court “should” consider “(i) whether the material will aid the jury in
proper consideration of the case; (ii) whether any party will be unduly prejudiced by
submission of the material; and (iii) whether the material may be subjected to improper use
by the jury.” State v. Kraushaar, 470 N.W.2d 509, 515 (Minn. 1991). This court reviews
the decision to grant a jury’s request to review evidence for an abuse o f discretion. State
v. Everson, 749 N.W.2d 340, 345 (Minn. 2008).
In announcing that it would allow the jury to review the recording, the district court
did not mention or discuss the three Kraushaar factors. Instead, it stated that it was
allowing the jury to review the recording for “all the reasons [it] admitted it in the first
place,” suggesting that it did not consider those factors.
It is concerning that the district court simply relied on its earlier evidentiary ruling
as the basis to allow the jury to review the recording, apparently without considering the
Kraushaar factors. “When a jury makes a request such as this, the court ‘should’ consider
[the] three [Kraushaar] factors.” Id. (citing Kraushaar, 470 N.W.2d at 515). Moreover,
the absence of an on-the-record analysis of the Kraushaar factors makes appellate review
difficult. Id. at 346. However, even if the district court erred in this regard, the error would
be subject to harmless-error analysis. See id. (applying harmless-error analysis).
9
When an error does not implicate a constitutional right, the error is harmless unless
it “substantially influenced the jury’s verdict.” State v. Morrow, 834 N.W.2d 715, 729 n.7
(Minn. 2013). The defendant has the burden of proving a nonconstit utional error was
prejudicial. See State v. Anderson , 763 N.W.2d 9, 12 (Minn. 2009) (stating that the
defendant has the burden to prove both that the district court abused its discretion in
admitting evidence and that the defendant was thereby prejudiced).
Vergara-Sanchez argues that allowing the jury to review the recording was
prejudicial because “the recorded statements were erroneously admitted ,” “[w]hen the
recorded statements were received during trial, their presentation was already highlighted,”
“the recorded statements were probably the state’s most compelling evidence of a drug
transaction,” and “the recorded statements did not echo other evidence in the trial.”
As discussed above, the district court properly admitted the recording. In making
that evidentiary ruling, the district court noted that defense counsel was free to argue that
the jury should not give the recording weight because the speakers in the recording are
unidentified. Defense counsel did so in his closing argument, arguing that “nobody knows
who was talking, nobody knows if all three of them were talking or if two of them were
talking,” that there was “no evidence” regarding which of the three occupants of the squad
car were talking, and that the jury would have to improperly speculate to determine which
of the occupants of the squad car participated in the conversation. Defense counsel also
noted that Vergara-Sanchez and Perez-Ochoa did not talk to each other when they were the
only occupants of the squad car and that the con versation did not begin until Pimentel
10
entered the squad car after law enforcement searched him and found methamphetamine on
him.
Moreover, the recording was not obviously incriminating. Vergara-Sanchez argues
that the recorded statements imply that at least two of the occupants of the squad car knew
each other, were aware that police had found drugs, and knew that they were in trouble.
But, again, it is unclear which of the occupants spoke in the recording.
Vergara-Sanchez also argues that the jury’s review of the recording was prejudicial
because one of the presentations of the recording “was different than in the trial.”
However, Vergara-Sanchez did not object to the recording being played without translation
by the Spanish interpreter ,2 and Vergar a-Sanchez does not explain how the different
presentation prejudiced him.
For these reasons, it does not appear that the recording substantially influenced the
jury’s verdict. Thus, any error in allowing the jury to review the recording was harmless
and therefore does not provide a basis for relief.
III.
Vergara-Sanchez contends that the district court’s aidin g-and-abetting jury
instruction was erroneous because it “allowed the jury to find [him] guilty for merely being
present when a crime was committed.”

2 Unobjected-to trial errors are reviewed under the plain -error standard of review.
Montanaro v. State, 802 N.W.2d 726, 732 (Minn. 2011). We do not engage in plain-error
review here because we ultimately conclude that the error, if any, was harmless.
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We review a district court’s jury instructions for an abuse of discretion. State v.
Huber, 877 N.W.2d 519, 522 (Minn. 2016). District courts are entitled to considerable
latitude when selecting language for jury instructions, but a jury instructio n must not
materially misstate the law. State v. Carridine , 812 N.W.2d 130, 144 (Minn. 2012).
Appellate courts “review the jury instructions as a whole to determine whether the
instructions accurately state the law in a manner that can be understood by the jury.” State
v. Kelley, 855 N.W.2d 269, 274 (Minn. 2014).
When a defendant fails to object to jury instructions at trial, this court reviews those
instructions for plain error. State v. Milton, 821 N.W.2d 789, 805 (Minn. 2012). “Under
the plain-error doctrine, the appellant must show that there was (1) an error; (2) that is
plain; and (3) the error affected substantial rights.” Huber, 877 N.W.2d at 522. “An error
is plain if it was clear or obvious,” and an error is clear or obvious if the error “contravenes
case law, a rule, or a standard of conduct.” State v. Ramey, 721 N.W.2d 294, 302 (Minn.
2006) (quotation omitted). “An erroneous jury instruction affects a defendant’s substantial
rights if the error was prejudicial and affe cted the outcome of the case.” Huber, 877
N.W.2d at 525.
If the appellant satisfies the first three prongs of the plain-error doctrine, a reviewing
court may correct the error only if it “seriously affects the fairness, integrity, or public
reputation of judicial proceedings.” Id. (quotation omitted). If we conclude that any prong
of the plain-error analysis is not satisfied, we need not consider the other prongs. State v.
Brown, 815 N.W.2d 609, 620 (Minn. 2012).
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Vergara-Sanchez asserts that he “objected to the [district] court’s proposed aiding
and abetting instruction” at trial , noting that defense counsel stated that he had a problem
with the court’s proposed instruction because he “thought that there had to be a [scienter]
element of it in that defendant has to have knowledge of the wrongdoing that is ongoing
by somebody else.” However, Vergara -Sanchez acknowledges that the district court
“addressed [his] concern by adding definitions for ‘intentionally’ or ‘with intent to’” to the
proposed instruction. Def ense counsel did not object to the revised instruction. We
therefore review for plain error.
Minnesota’s aiding-and-abetting statute provides that “[a] person is criminally
liable for a crime committed by another if the person intentionally aids, advises, hires,
counsels, or conspires with or otherwise procures the other to commit the crime.” Minn.
Stat. § 609.05, subd. 1 (2014).
The district court gave the following aiding-and-abetting instruction:
The defendant is guilty of a crime committed by another
person when the defendant has played an intentional role in
aiding the commission of the crime and made no reasona ble
effort to prevent the crime before it was committed.
Intentional role includes aiding, advising, hiring,
counseling, conspiring with or procuring another to commit the
crime. “Intentionally” means that the actor either has a purpose
to do the thing or cause the result specified, or believes that the
act performed by the actor, if successful, will cause that result.
In addition, the actor must have knowledge of those facts
which are necessary to make the actor’s conduct criminal.
A defendant’s presence constitutes aiding if, first, the
defendant knew his alleged accomplice or accomplices were
going to or were committing the crime of sale or possession
with the intent to sell methamphetamine, and second, the
defendant intended that his presence and actio ns aid the
commission of the crime. If the defendant aided, advised,
13
hired, counseled or conspired with another or otherwise
procured the commission of a crime by another person, and the
crime was committed, the defendant is guilty of the crime.

(Emphasis added.)
Vergara-Sanchez argues that the district court’s instruction conflicted with settled
law because the “addition of the language ‘or were committing’ expand[s] the aiding and
abetting liability to include cases where the defendant lacks advance knowledge but is
present and thus ‘knows’ that his accomplices ‘were committing’ a crime.”
This court recently upheld a similar aiding -and-abetting jury instruction in State v.
Smith, holding that “[a] district court does not err by instructing the jury that the knowledge
requirement for accomplice liability under Minn. Stat. § 609.05 (2012) is satisfied if the
defendant knew the alleged accomplices ‘were going to or were committing a crime.’” 901
N.W.2d 657, 659 (Minn. App. 2017), review denied (Minn. Nov. 14, 2017 ). This court
reasoned that the aiding -and-abetting statute requires a defendant “to possess knowledge
of the crime before the defendant intentionally aids in its commission ” and that the intent
requirement in the statute adequately protects defendants from being held liable for merely
being present at a crime. Id. at 662-63. Given this court’s decision in Smith, the district
court’s aiding-and-abetting jury instruction was not improper.
IV.
Lastly, Vergara-Sanchez contends that “[b]ecause this case was not final when the
Minnesota Drug Sentencing Reform [Act] took effect, the case should be remanded for re-
sentencing” under State v. Kirby. 899 N.W.2d 485, 486 (Minn. 2017) (“The amelioration
doctrine requires the resentencing of a pe rson whose conviction was not yet final on the
14
effective date of section 18(b) of the Drug Sentencing Reform Act .”). He further argues
that “[g]iven that the district court previously indicated that it believed that [he] deserved
a bottom-of-the-box sentence, [he] is entitled to have his sentence reduced to reflect that
belief.” The state does not oppose a remand for resentencing under Kirby, but it disagrees
with Vergara-Sanchez’s suggestion that the district court must sentence at the “bottom of
the box” on remand.
We agree that Vergara-Sanchez is entitled to resentencing under Kirby. However,
the district court has discretion to determine the appropriate sentence within the
presumptive range of the DSRA-amended sentencing grid on remand. See State v. Hough,
585 N.W.2d 393, 397 (Minn. 1998) (noting that the district court “is in the best position to
evaluate the offender’s conduct and weigh sentencing options”).
Conclusion
Because the district court did not abuse its discretion by admitting the squad -car
video recording into evidence, because any error in allowing the jury to review the
recording was harmless, and because the district court did not err in instructing the jury,
we affirm Vergara -Sanchez’s conviction of first -degree controlled -substance sale. But
because Vergara-Sanchez is entitled to resentencing under the DSRA-amended sentencing
grid, we reverse his sentence and remand for resentencing.
Affirmed in part, reversed in part, and remanded.