State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-0219

State of Minnesota,
Respondent,

vs.

Jose Ventura Hernandez Hernandez,
Appellant.

Filed January 14, 2019
Affirmed in part, reversed in part, and remanded
Florey, Judge

Otter Tail County District Court
File No. 56-CR-17-1831

Keith M. Ellison, Attorney General, Michael Everson, Assistant Attorney General, St.
Paul, Minnesota; and

Michelle Eldien, Otter Tail County Attorney, Fergus Falls, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Jennifer Workman Jesness,
Assistant Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Schel lhas, Presiding Judge; Reilly, Judge; and Florey,
Judge.
U N P U B L I S H E D O P I N I O N
FLOREY, Judge
In this direct appeal from a judgment of conviction, appellant argues that the
evidence was insuffici ent to prove his guilt for kidnapping, th e district court erred by

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imposing a conditional-release pe riod for a conviction of attem pted criminal sexual
conduct, and the warrant of comm itment must be amended to refle ct an attempted rather
than a completed criminal-sexual-conduct offense.
We affirm the kidnapping conviction because there was sufficien t evidence, but
reverse imposition of the ten-year conditional-release term, an d remand for resentencing
and correction of the warrant of commitment to reflect that app ellant was convicted of
attempted first-degree criminal sexual conduct.
FACTS
Appellant Jose Ventura Hernandez Hernandez dragged his former g irlfriend,
A.M.B., from a vehicle into his residence, assaulted her, and attempted sexual penetration.
The state charged him with kidnapping with the purpose of committing great bodily harm
or causing terror in the victim, a violation of Minn. Stat. § 609.25, subd. 1(3) (2016); false
imprisonment by intentional restraint, a violation of Minn. Stat. § 609.255, subd. 2 (2016);
and attempted first-degree crimi nal sexual conduct involving pe netration and the
complainant’s reasonable fear of great bodily harm, a violation of Minn. Stat. §§ 609.17,
subd. 1, .342, subd. 1(c) (2016).
The matter proceeded to a jury t rial. A.M.B. testified that s he was previously in a
relationship with appellant. He became very controlling and jealous, and the two stopped
dating, but maintained a friendship. In March 2017, appellant went with A.M.B. on a trip
to Fargo-Moorhead to purchase some supplies for A.M.B.’s store in Pelican Rapids. They
got into an argument, and appellant got upset. On the way home, appellant drove erratically
and told A.M.B. he was going to disfigure her face and hurt her and that the two were

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“going to kill each other in the car.” Appellant started hitti ng A.M.B. in the face and
punching her, and she punched him back. He took a back road, causing A.M.B. to become
nervous because she was unsure where she was being taken. He drove her to his residence
outside of Pelican Rapids.
Appellant went inside, and A.M.B. stayed in the vehicle and loc ked the doors.
Appellant came back to the vehicle, opened it, pulled A.M.B. ou t against her will,
forcefully dragged her into his residence by her hair and possi bly her arm, and locked the
door. Appellant disappeared momentarily, and A.M.B. looked for a way out, but appellant
returned and ripped A.M.B.’s clothes off. He got on top of her and tried to spread her legs
apart, but she fought back by ki cking and punching him. He tol d her that she must
cooperate and have sex with him. He smashed her head on the fl oor twice, and for a
moment she thought that she lost consciousness. She feared for her life. Appellant
squeezed A.M.B.’s breasts, causing severe pain. At one point, when A.M.B. was lying on
the floor, she saw appellant go into the kitchen and grab a kni fe, but he did not have the
knife when he returned, and A.M.B. was unsure what happened to the knife. A.M.B. was
eventually able to coax appellant into stopping the attack. Appellant drove A.M.B. home.
A.M.B. later told law enforcemen t about the attack, and appellant was arrested. A
detective testified that he spoke with appellant, through a tra nslator, about the incident.
According to the detective, appellant admitted that he dragged A.M.B. from his vehicle
“one time . . . and they got insid e the residence.” Appellant admitted that he disrobed
A.M.B. against her will. He adm itted to fighting with her and wanting to have sex with
her, but he had “erectile dysfunction or something.” According to the detective, appellant

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did not recall grabbing a knife or hitting A.M.B.’s head on the f l o o r . B a s e d o n t h e
conversation with appellant, the detective opined that it was appellant’s “plan” to have sex
with A.M.B.
Appellant testified in his own defense. He claimed that he an d A.M.B. argued over
money, but he denied taking her to his residence and denied her allegations. He testified
that his inculpatory statements to the detective were a result of medication that he was
taking.
The jury found appellant guilty o f kidnapping, attempted first -degree criminal
sexual conduct, and false imprisonment. Following the verdict, the jury was asked to find
aggravating factors, specifically, whether A.M.B. was released to a safe place and whether
she suffered great bodily harm during the kidnapping. The jury found that A.M.B. was
released to a safe place and did not suffer great bodily harm.
Appellant was sentenced to 21 m onths’ imprisonment for kidnappi ng, and though
the judge wanted execution of the sentence to be stayed, appell ant demanded execution,
and execution of the sentence wa s ordered. There was no adjudi cation on the false-
imprisonment conviction, which the district court deemed a less er-included offense of
kidnapping. Appellant was sentenc ed to 72 months’ imprisonment for attempted first-
degree criminal sexual conduct, with a 10-year conditional-rele a s e t e r m . T h e t w o
sentences were to be served concu rrently. The warrant of commi tment indicates that
appellant was convicted of kidnapping and first-degree criminal sexual conduct, but it does
not indicate that the criminal-sexual-conduct conviction is for an attempted offense. This
appeal followed.

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D E C I S I O N
I.
We first address the sufficiency o f the evidence for the kidnap ping conviction.
Appellant was convicted under Mi nn. Stat. § 609.25, subd. 1(3), w h i c h c r i m i n a l i z e s
confining or removing a person from one place to another without the person’s consent and
with the purpose of committing “great bodily harm” or “to terrorize” the person. In other
words, the perpetrator must have the specific intent to commit great bodily harm or to
terrorize. See State v. Wilson, 830 N.W.2d 849, 853-54 (Minn. 2013) (determining that the
word “purpose” denoted a specific -intent requirement). Great b odily harm is defined as
“bodily injury which creates a high probability of death, or which causes serious permanent
disfigurement, or which causes a permanent or protracted loss o r impairment of the
function of any bodily member or organ or other serious bodily harm.” Minn. Stat.
§ 609.02, subd. 8 (2016). The term “to terrorize” is defined for juries as “causing extreme
fear by use of violence or threats.” 10 Minnesota Practice, CRIMJIG 15.02 (2015).
Appellant argues that “[t]he stat e presented no evidence that [ his] purpose was to
c o m m i t g r e a t b o d i l y h a r m o r t o t e r r o r i z e [ A . M . B . ] . ” H e a s s e r t s that he removed and
confined A.M.B. with the purpose of having sex with her, and th is intent does not satisfy
the intent element of the kidnapping charge. He acknowledges t hat he used force against
A.M.B., but argues that it was incidental to his “goal of engag ing in sex.” Appellant’s
argument is rooted in State v. Smith, which held that “where the confinement or removal
of the victim is completely incidental to the perpetration of a separate felony, it does not

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constitute kidnapping.” 669 N.W.2d 19, 32 (Minn. 2003), overruled on other grounds by
State v. Leake, 699 N.W.2d 312 (Minn. 2005).
In considering a claim of insufficient evidence, this court’s r eview is limited to a
thorough analysis of the record to determine whether the eviden ce, when viewed in the
light most favorable to the conviction, was sufficient to allow the jurors to reach the verdict
that they did. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). We assume “the jury
believed the state’s witnesses and disbelieved any evidence to the contrary.” State v.
Moore, 438 N.W.2d 101, 108 (Minn. 1989). We will not disturb the ve rdict if the jury,
acting with due regard for the presumption of innocence and the requirement of proof
beyond a reasonable doubt, could reasonably conclude that the defendant was guilty of the
charged offense. Bernhardt v. State, 684 N.W.2d 465, 476-77 (Minn. 2004).
The parties agree that a circums tantial-evidence standard is ap plicable because
appellant’s intent is at issue. See State v. Cooper , 561 N.W.2d 175, 179 (Minn. 1997)
(recognizing that intent is generally proved by circumstantial e v i d e n c e ) . U n d e r t h e
circumstantial-evidence standard, we review the evidence using a two-step analysis. We
first identify the circumstances proved, deferring “to the jury’s acceptance of the proof of
these circumstances and rejection of evidence in the record tha t conflicted with the
circumstances proved by the [s]tate.” State v. Robertson , 884 N.W.2d 864, 871 (Minn.
2016) (quotations omitted). Second, we “independently examine the reasonableness of all
inferences that might be drawn from the circumstances proved, i ncluding inferences
consistent with a hypothesis other than guilt.” Id. (quotations omitted). “In order to sustain
a conviction based on circumstantial evidence, the reasonable inferences that can be drawn

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from the circumstances proved as a whole must be consistent wit h the hypothesis that the
accused is guilty and inconsisten t with any rational hypothesis except that of guilt.” Id.
(quotation omitted). We view not only the circumstances proved a s a w h o l e , b u t a l s o
consider the inferences drawn therefrom as a whole. State v. Harris, 895 N.W.2d 592, 600
(Minn. 2017).
The circumstances proved are th at appellant and A.M.B. were pre viously in a
romantic relationship. After traveling to Fargo-Moorhead, the two quarreled, and appellant
became upset. On the way home, he drove erratically and told A .M.B. he was going to
disfigure her face and hurt her and that the two were going to kill each other. Appellant
hit A.M.B. in the face and punched her. When they arrived at a ppellant’s residence, he
pulled A.M.B. out of the vehicle against her will, forcefully dragged her into his residence
by the hair, and locked the door. He disappeared momentarily, then returned, forcefully
removed A.M.B.’s clothes, and attempted sexual penetration. He smashed her head on the
floor twice and squeezed her breasts, causing severe pain. At one point, A.M.B. saw
appellant go into the kitchen and grab a knife. She feared for her life.
The circumstances proved are consistent with appellant’s guilt and inconsistent with
his alternative hypothesis. The charged offense permitted a conviction based on an intent
to commit great bodily harm or to terrorize. We focus on int ent to terrorize, as the
circumstances proved are consiste nt with that intent. Moreover , the circumstances are
inconsistent with the hypothesis that appellant’s sole purpose for removal and confinement
was sex, and inconsistent with t he hypothesis that appellant’s removal, confinement, and
terroristic purpose were merely incidental to the criminal-sexual-conduct offense.

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Appellant words and actions on the drive home indicate an intent to terrorize. When
appellant dragged A.M.B. into hi s residence by the hair, he did not immediately engage
her sexually. When he did disrobe her, his act of viciously grabbing her breasts is unrelated
to penetration or forced sexual compliance and indicative of an intent to cause terror.
Indeed, after appellant slammed A.M.B.’s head on the ground, she feared for her life. At
one point, A.M.B. saw appellant go into the kitchen and grab a knife, which was not used
to force sexual compliance. It is unreasonable to conclude, ba sed on the circumstances
proved, that appellant’s sole motivation was sex. The only rea sonable hypothesis is that
appellant removed A.M.B. to his residence and confined her with the independent purpose
of causing fear through violence or threats.
II.
Appellant next argues that the district court erred by imposin g a ten-year
conditional-release term for attempted first-degree criminal sexual conduct because
conditional release cannot be imposed for an attempted offense. T h e s t a t e a g r e e s t h a t
appellant’s conditional release period “should be vacated,” and the warrant of commitment
should be corrected because appellant was convicted of an attempt.
I n State v. Noggle, the supreme court held that “[t]he plain language of Minn. Stat.
§ 609.3455, subd. 6 (2014), does not authorize the imposition o f a 10–year conditional
release term for [a] conviction of attempted third-degree crimi nal sexual conduct.” 881
N.W.2d 545, 545 (Minn. 2016). The supreme court reasoned that Minn. Stat. § 609.3455,
subd. 6, imposes a mandatory ten -year conditional-release term for five enumerated
offenses (four degrees of criminal sexual conduct, first through fourth, and criminal sexual

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predatory conduct), and an attempted completion of one of those enumerated offenses is
sufficiently distinct from a completed offense, and therefore does not qualify as one of the
five enumerated offenses. Id. at 547-551.
Appellant was convicted of an a ttempt, which is distinct from the offenses listed in
Minn. Stat. § 609.3455, subd. 6. Therefore, the reasoning in Noggle applies.1 We reverse
imposition of the ten-year conditional-release term and remand for resentencing and
correction of the warrant of commitment to reflect that appella nt was convicted of
attempted first-degree criminal sexual conduct.
III.
Lastly, appellant filed a pro se supplemental brief, offering his version of the events
in question. Appellant’s brief contains factual allegations outside of the record and is void
of argument or legal citation, and we therefore must disregard it. State v. Meldrum, 724
N.W.2d 15, 22 (Minn. App. 2006), review denied (Minn. Jan. 24, 2007).
Affirmed in part, reversed in part, and remanded.

1 While the district court did not state the statutory grounds for the conditional-release term,
the warrant of commitment references the sentencing statute, Minn. Stat. § 609.342, subd.
2(a) (2016), which in turn references Minn. Stat. § 609.3455. It therefore seems apparent
that the conditional-release term was imposed under section 609.3455.