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This opinion will be unpublished and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
A18-1415

State of Minnesota,
Respondent,

vs.

Victor Ciriaco-Martinez,
Appellant.

Filed July 1, 2019
Affirmed in part, reversed in part, and remanded
Reyes, Judge

Hennepin County District Court
File No. 27-CR-17-21619

Keith Ellison, Minnesota Attorney General, St. Paul, Minnesota; and

Michael O. Freeman, Hennepin County Attorney, Jonathan P. Schmidt, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Rochelle R. Winn, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Bjorkman, Presiding Judge; Rodenberg, Judge; and
Reyes, Judge.
U N P U B L I S H E D O P I N I O N
REYES, Judge
Following his conviction of first-degree criminal sexual conduct, appellant argues
that (1) the prosecutor committed misconduct that affected his substantial rights and (2) the

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district court imposed a consecutive sentence based on an incorrect criminal-history score.
We affirm in part, reverse in part, and remand.
FACTS
M.J. has lived with her foster parents for nearly her entire life. M.J.’s biological
mother had two children with appellant Victor Ciriaco -Martinez, who are M.J.’s half -
brothers. During the relevant time, M.J.’s half-brothers lived with their aunt, appellant’s
sister, E.C.-M. M.J.’s foster mother had arranged for E.C.-M. to provide respite foster care
for M.J. on weekends to allow M.J. to spend more time wi th her half-brothers. From July
8 to 10, 2017, M.J. stayed with E.C.-M. During this particular weekend, M.J. did not stay
at E.C.-M.’s house but instead stayed at the home of the mother of E.C.-M. and appellant.
Appellant also stayed at the home that we ekend. While M.J. was sleeping, she woke to
appellant removing her clothing and forced her to engage in fellatio and sexually penetrated
her anus and vagina. M.J. was ten years old at the time.
A few days later, M.J. told her foster mother that appellant had sexually assaulted
her. M.J. visited Hennepin County Medical Center (HCMC) and described the sexual
assault to the nurse who examined her . M.J. participated in a forensic interview at
CornerHouse during which she again described the sexual assault in detail. She also visited
the Center for Safe and Healthy Children at the University of Minnesota Masonic
Children’s Hospital (CSHC) and made disclosures consistent with her HCMC and
CornerHouse interviews.
The state charged appellant with one count of first-degree criminal sexual conduct
in violation of Minn. Stat. § 609.342, subd. 1(a) (2016). After a trial, a jury found appellant

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guilty. The district court then sentenced appellant to 201 months in prison, consecutive to
a 30-month sentence for a prior felony assault conviction, for which appellant was on
probation. This appeal follows.
D E C I S I O N
I. Although the prosecutor committed misconduct, appellant is not entitled to a
new trial.

Appellant argues that he is entitled to a new trial because the prosecutor engaged in
misconduct during closing argument , constituting plain error affecting his substantial
rights. We agree that the prosecutor’s comments were plain error, but we are not persuaded
that they affected appellant’s substantial rights.
Appellant did not object to the prosecutor’s remarks at trial. This court reviews
unobjected-to prosecutorial misconduct under a modified plain -error standard where the
appellant must first show an error that is plain. State v. Griller , 583 N.W.2d 736, 740
(Minn. 1998). An error is plain if it is “clear” or “obvious” and conflicts with caselaw, a
rule, or a standard of conduct. State v. Ramey, 721 N.W.2d 294, 302 (Minn. 2006). If the
appellant shows plain error, the burden then shifts to the state to show that the misconduct
did not affect the appellant’s substantial rights. Id. When reviewing a prosecutor's
statements, we examine the arguments “as a whole, rather than just se lective phrases or
remarks that may be taken out of context or given undue prominence.” State v. Walsh, 495
N.W.2d 602, 607 (Minn. 1993).

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A. The prosecutor’s comments constituted plain error.
During closing argument, the prosecutor stated that appellan t chose M.J. as his
victim because children make “the perfect victim.” She also stated that M.J. feared coming
to court because of appellant and that this meant M.J. told the truth about the sexual assault.
We address each statement in turn.
1. “Men-who-prey-upon-children” argument
During closing, the prosecutor argued:
Children speak quietly, so we have to listen. We have
to listen because the men who prey upon them are counting
upon their silence, that is why they pick them. Men who prey
upon children do so because they think they can get away with
it. Children can be easily dismissed. They’re inconsistent story
tellers. They don’t have sequential or lineal presentation.
They’re going to mix up the details. It is so easy to dismiss the
word of a child, because they don’t think or speak like you or
I would, but that is why men pick them. They are the perfect
victim. And make no mistake about it, that is why Victor
Ciriaco-Martinez, the defendant in this case, preyed upon
[M.J.] that weekend of July 8th through the 10th, 2017.
[M.J.] was vulnerable in every way. She was alone
without her family. She’s cognitively delayed. She has social
issues, some behavioral issues. The defendant never thought
she would tell someone, and if she did, who would believe her.

(Emphasis added.) Appellant argues that the prosecutor made this statement without a
factual basis and to inflame the jury’s passions and prejudices.
A prosecutor may present all legitimate arguments on the evidence, analyze and
explain t he evidence, and present all reasonable inferences to be drawn from the facts
presented. State v. Wahlberg, 296 N.W.2d 408, 419 (Minn. 1980). And a prosecutor need
not present a colorless argument. State v. Porter, 526 N.W.2d 359, 363 (Minn. 1995). But

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the prosecutor should refrain from making remarks that inflame the passions and prejudices
of the jury. State v. Mayhorn, 720 N.W.2d 776, 786-87 (Minn. 2006). A prosecutor cannot
disparage the defendant or attack the defendant’s character unless the prosecutor’s remarks
are carefully confined to the evidence. State v. Bauer, 776 N.W.2d 462, 476 (Minn. App.
2009). A prosecutor in a sexual -abuse case must exhibit the utmost professionalism and
adhere to the highest ethical standards because these cases can invoke an emotional
reaction, and any emotional appeal to the jury is therefore likely to be prejudicial. See State
v. Jahnke, 353 N.W.2d 606, 611 (Minn. App. 1984). Prosecutors in sexual -abuse cases
must not inject into trial any matters which they cannot introduce directly. Id.
Here, the prosecutor’s argument a s to why men choose children as victims, and
particularly, the statement “make no mistake about it, that is why [appellant], the defendant
in this case, preyed upon [M.J.] that weekend,” were not confined to the evidence. A
prosecutor may argue reasonable inferences drawn from the evidence presented, but the
record contains no evidence on why appellant chose M.J. as his victim. The prosecutor
made an affirmative statement about appellant’s motives. This statement went beyond the
evidence presented at trial, and the prosecutor used it to inflame the jury’s prejudices. This
argument constitutes plain error because it violates caselaw precluding such argument.
2. M.J.’s fear of appellant
The prosecutor also argued:
Now, [the district court] provided you a list of factors to
consider when evaluating the credibility of the witnesses in this
case. They should guide your analysis of the testimony and
help you determine whether the state has met its burden beyond
a reasonable doubt.

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One of the first factors is frankness and sincerity. [M.J.]
told you what happened in a very frank and sincere way. Ladies
and gentlemen, you saw [M.J.] when she entered this
courtroom. That door opened for the first time, she took one
step in and started screaming , no, he’s in there, and ran back
out. She tried a second time. The door opened, she took a step
in, she screamed, no, I’m scared, and ran back out. The third
time she made it about halfway to the doors before she froze
and turned. That tells you everythin g you need to know about
whether this happened to [M.J.]. She cannot make up that
reaction. Had that emotional reaction to seeing the defendant
for the first time since this abuse occurred.

(Emphasis added.) Appellant argues that this statement is plain error because it (1) referred
to facts outside the evidence; (2) improperly inflame d the jury’s passions; and
(3) constituted improper vouching for M.J.’s credibility.
A jury may consider the demeanor of a testifying witness. See State v. Lloyd, 345
N.W.2d 240, 245 ( Minn. 1984) (noting that jury has opportunity to observe demeanor of
witnesses and weigh their credibility). But M.J.’s reaction occurred before she was sworn
in and had taken the witness stand . She therefore was not a testifying witness, and her
reaction was not evidence presented to the jury. When the prosecutor referred to M.J.’s
reaction during closing argument and told the jury that M.J. was fearful because appellant
sexually assaulted her, she referred to facts outside the evidence presented at trial that
improperly inflamed the jury’s passions and prejudices because it would make the jury
want to punish appellant for causing M.J. to be so afraid.
Moreover, while a prosecutor can point to circumstances surrounding a witness’s
credibility, a prosecutor cannot vouch for a witness’s credibility. State v. Ture, 353 N.W.2d
502, 516 (Minn. 1984). One of the ways a prosecutor engages in impermissible vouching

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is when she implies a guarantee that the witness has testified truthfully . State v. Lopez -
Rios, 669 N.W.2d 603, 614 ( Minn. 2003). A prosecutor cannot refer to evidence that she
did not introduce to the jury to guarantee the accuracy of a witness’s testimony ; doing so
is vouching. State v. Patterson, 577 N.W.2d 494, 497 (Minn. 1998); accord State v. Gail,
713 N.W.2d 851, 866 (Minn. 2006) ( vouching occurs when state refers to facts outside
record when arguing for witness credibility).
Here, the prosecutor referred to M.J.’s reaction when she entered the courtroom, a
fact outside the evidence. The prosecutor then used M.J.’s reaction to guarantee M.J.’s
truthfulness, by stating that “this tells you everything you need to know about whether this
happened to [M.J.]. She cannot make up that reaction.” The prosecutor made this
statement in the context of discussing how to evaluate credibility and the factors the jury
should consider in determining “frankness” and “ sincerity.” By referring to facts outside
the evidence and then using those facts to imply a guarantee of M.J.’s truthfulness, the
prosecutor vouched for M.J.’s credibility. We conclude that this statement also rises to the
level of plain error because it violates settled caselaw.
B. The prosecutor’s errors did not affect appellant’s substantial rights.

Appellant argues that he is entitled to a new trial because the prosecutor’s statements
resulted in substantial prejudice to him. We disagree.
Because appellant has established plain error, the state must show that there is no
reasonable likelihood that the misconduct in question affected his substantial rights by
having a significant effect on the jury’s verdict. Ramey, 721 N.W.2d at 302. When
evaluating the misconduct’s effect on substantial rights, this court considers the

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pervasiveness of the improper suggestions , the strength of the evidence against the
defendant, and whether the defendant had a chance to rebut any improper remarks. State
v. Peltier, 874 N.W.2d 792, 805 -06 (Minn. 2016). We also consider the district court’s
jury instructions. State v. Washington, 521 N.W.2d 35, 40 (Minn. 1994).
Here, t he state presented overwhelming evidence of appellant’s g uilt. The jury
heard testimony from M.J. herself during which she described the sexual assault. M.J.
testified that she was asleep on the floor of the living room when appellant woke her up by
pulling off her clothes. She then testified that he licked h er vagina and anus, he put his
penis into her vagina, and he forced her to put his penis in her mouth. The jury also heard
testimony from M.J.’s foster mother that M.J. told her that appellant touched her with his
mouth, hands, and penis. The nurse from HCMC testified that M.J. told her that a male
forced her to touch his penis with her mouth and that “he touched my front part with his
hand and his mouth and his penis.” The forensic interviewer at CornerHouse also testified
and the jury watched M.J.’s Co rnerHouse interview during which she recalled the events
consistently, described the sexual assault in detail, and demonstrated the sexual assault
using anatomical dolls. All of M.J.’s accounts were consistent.
Along with M.J.’s accounts of what happened , a forensic scientist with the Bureau
of Criminal Apprehension testified that it collected DNA from M.J.’s underwear and
compared the collected DNA with a sample of appellant’s DNA. The forensic scientist
concluded that the DNA mixture contained male DNA and that 99.99999 percent of the
general population could be excluded from being contributors to the mixture. Appellant’s

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DNA, however, could not be excluded. Though the prosecutor’s comments are plain error,
the error is slight compared to the overwhelming evidence of appellant’s guilt.
Further, the prosecutor made these remarks in the context of a 33 -page closing
argument. In Peltier, the supreme court concluded that the prosecutorial misconduct did
not affect the defendant’s substantial rights when the “incidents of alleged misconduct were
isolated, together comprising approximately one page of a 39-page closing argument. 874
N.W.2d at 806; see also Washington , 521 N.W.2d at 40 (no prejudice when improper
comments found in only four out of 45 transcript pages). Moreover, the district court
instructed the jury that “the arguments or other remarks of an attorney are not evidence.”
The prosecutor’s comments did not result in substantial prejudice to appellant. We affirm
appellant’s conviction.
II. The district court calculated appellant’s sentence based on an incorrect
criminal-history score.

Appellant argues that the district court improperly impos ed a consecutive sentence
based on a criminal-history score of two when it should have sentenced appellant based on
a criminal-history score of zero. The state agrees, as do we.
The Minnesota Sentencing Guidelines provide for permissive consecutive
sentences. We review a district court’s imposition of a permissive consecutive sentence
for a clear abuse of discretion. State v. Fardan, 773 N.W.2d 303, 322 (Minn. 2009). This
court may at any time correct a sentence not authorized by law. Minn. R. Crim. P. 27.03,
subd. 9. An unauthorized sentence includes one calculated based on an incorrect criminal-

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history score. State v. Outlaw , 748 N.W.2d 349, 356 (Minn. App. 2008), review denied
(Minn. July 15, 2008).
Appellant committed this offense while on probation for third-degree assault, which
included a 30-month stayed sentence. At sentencing, the district court revoked probation
and executed this sentence. The district court then imposed a top-of-the-box sentence of
201 months for the first-degree criminal-sexual-conduct conviction, consecutive to the 30-
month sentence. The district court calculated the 201-month sentence based on a criminal-
history score of two.
A district court may impose permissive consecutive sentences if the current and
prior felony are eligible for permissive consecutive sentences and the prior felony sentence
has not expired or been discharged. Minn. Sent. Guidelines 2.F.2.a (1)(i)(a) (2016). Third-
degree assault and first -degree criminal sexual conduct are both eligible for a permissive
consecutive sentence. Minn. Sent. Guidelines 6. B. For each felony offense sentenced
consecutively to another felony offense, the court must use a criminal-history score of zero,
or the mandatory minimum for the offense, whichever is longer. 1 Minn. Sent. Guidelines
2.F.2.b.
The district court acted within its discretion when imposing a consecutive sentence.
But the district court should have imposed the sentence based on a criminal -history score
of zero, rather than two, as mandated by the s entencing guidelines. On the sex -offender
grid, a top -of-the-box sentence for criminal sexual conduct with a criminal -history score

1 The mandatory minimum sentence for first-degree criminal sexual conduct is 144 months.
Minn. Stat. § 609.342, subd. 2(b) (2016).

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of two is 201 months. Minn. Sent. Guidelines 4.B. But a top -of-the-box sentence with a
criminal-history score of zero is 172 months with a range between 144 and 172 months.
Id. Because the district court sentenced appellant based on an incorrect criminal -history
score and appellant’s sentence therefore falls outside the guideline range, we reverse and
remand this case for resentencing.
Affirmed in part, reversed in part, and remanded.