Ernesto Torres Garcia, petitioner, Appellant,

This opinion will be unpublished and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
A18-1907

Ernesto Torres Garcia, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed August 5, 2019
Affirmed
Cochran, Judge

Hennepin County District Court
File No. 27-CR-15-10673

Cathryn Middlebrook, Chief Appe llate Public Defender, Lydia Mar ia Villalva Lijó,
Assistant Public Defender, St. Paul, Minnesota (for appellant)

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

Michael O. Freeman, Hennepin Coun ty Attorney, Brittany D. Lawon n, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Considered and decided by Florey, Presiding Judge; Worke, Judg e; and Cochran,
Judge.
U N P U B L I S H E D O P I N I O N
COCHRAN, Judge
Following the denial of postc onviction relief, appellant argue s t h a t ( 1 ) t h e s t a t e
engaged in prosecutorial miscon duct that affected his substanti a l r i g h t s , ( 2 ) h i s S i x t h
2
Amendment right to confront witnesses was violated, and (3) the postconviction court
abused its discretion by affirmi ng the district court’s denial of a downward dispositional
departure. We affirm.
FACTS
On April 17, 2015, Minneapolis police responded to Abbott Child ren’s Hospital
after receiving a report that six -year-old A.C.C. had been sexu ally assaulted by appellant
Ernesto Torres Garcia. Torres Garcia was living with A.C.C.’s family at the time. A.C.C.
told her parents that Torres Garcia had called her into his bedroom, undressed her, took his
own clothes off, and put his “boy private” inside her “girl pri vate.” On April 22, Torres
Garcia was charged with two counts of first-degree criminal sexual conduct in violation of
Minn. Stat § 609.342, subd. 1(a) (2014).
A.C.C. participated in a forensic interview at CornerHouse on A pril 20, 2015,
during which she described the sexual assault. During the inte rview, A.C.C. provided
“sensory details,” which the forensic interviewer testified gave her statements credibility.
On April 22, 2015, Sergeant Faul coner, an investigator for Minn eapolis police,
conducted a post-Miranda interview with Torres Garcia and a certified Spanish-language
interpreter. Sergeant Faulconer testified at trial regarding Torres Garcia’s interview with
the police. Sergeant Faulconer stated that Torres Garcia admitted to watching pornography
i n h i s b e d r o o m a n d s a i d t h a t A . C . C . h a d i n a d v e r t e n t l y e n t e r e d his room while the
pornography was on his television. After being told that A.C.C. had implicated him, Torres
Garcia’s “demeanor became very sad and regretful.” He made sta tements that “he was
sorry that these things had happened to her.” Sergeant Faulcon er asked Torres Garcia
3
whether he had touched A.C.C., and Torres Garcia gave multiple responses, including that
he did not remember and that he did not touch her.
During closing argument, the Hennepin County prosecutor urged the jury to listen
to children, because “the men wh o sexually assault them are cou nting on their silence.”
The prosecutor stated that the men who “prey on children” pick them because they are “the
perfect victim.” A jury found Torres Garcia guilty on both counts. On June 10, 2016, the
district court denied Torres Garcia’s request for a downward departure and sentenced him
to 156 months’ imprisonment, the presumptive sentence.
On June 6, 2018, Torres Garcia filed for postconviction relief , arguing that he is
entitled to a new trial based on prosecutorial misconduct and t he admission of the
interpreted statements that he made during the interrogation. He also argued that the
district court abused its discr etion by denying his motion for a downward dispositional
departure. The postconviction c ourt denied relief. Torres Gar cia makes the same
arguments on appeal.
D E C I S I O N
I. Appellant is not entitled to a new trial based on prosecutorial misconduct.
Torres Garcia argues that he is entitled to a new trial because the prosecutor engaged
in misconduct in closing argument by inflaming the jury’s passions and urging the jury to
protect society.
Torres Garcia did not object to the prosecutor’s closing argument at trial. This court
reviews unobjected-to prosecutorial misconduct under a modified plain-error standard.
State v. Wren , 738 N.W.2d 378, 389 (Minn. 2007). Under this standard, Torre s Garcia
4
must demonstrate that the alleged misconduct constituted error and that the error was plain.
See State v. Ramey, 721 N.W.2d 294, 302 (Minn. 2006). “An error is plain if it w as clear
or obvious. Usually this is shown if the error contravenes case law, a rule, or a standard of
conduct.” Id. (quotation and citations omitted). If Torres Garcia shows “error that is plain,
the burden would then shift to t he state to demonstrate lack of prejudice; that is, the
misconduct did not affect substantial rights.” Id. Thus, the state would have to 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.” Id. (quotations omitted). If all three
prongs of the modified plain-error test are met, this court the n determines whether to
address the error to ensure fairness and the integrity of the proceedings. Id.
We agree with Torres Garcia that the prosecutor’s statements in closing argument
constitute error that is plain. But, we conclude that the error did not affect Torres Garcia’s
substantial rights.
A. The prosecutor’s comments constitute error that is plain.
The prosecutor began her closing argument by telling the jury:
Children speak softly, and we really need to listen. We
have to listen because the men who sexually assault them are
counting on their silence. That is why they pick them. Men
who prey on children pick children because they can be
frightened or persuaded into silence. Children can be confused
about the appropriate role of a parent or caregiver or person
living in their home.

They prey upon children because they are going to be
uncomfortable describing what happened to them; they are not
going to want to use the words or they are not going to be able
to have words for vagina or penis or anus. They are going to
be inconsistent storytellers. T hey don’t have sequential or
5
linear presentation. They are going to bounce around. They
are going to mix up details. In one sentence they are going to
be talking about the day that they were trapped in a room, and
the next sentence they are going to be talking about the day
they told their mom, and the sentence after that they are going
to be talking about how they can’t sleep, how they are having
nightmares, how they think their dad is dead.

And they are easily dismissed, ladies and gentlemen. It
i s s o e a s y t o d i s m i s s t h e w o r d o f a c h i l d . O h , s h e i s j u s t
attention-seeking or she is troubled or she’s coached.

Men who sexually assault ch ildren know that children
are the perfect victim. And that’s why we really have to listen.

Torres Garcia argues that the prosecutor’s statements constitute plain error because
they “inflamed the passions of the jury and injected broader societal issues by appealing to
jurors’ instincts to protect children from sexual abuse.”
In a closing argument, the state may “present all legitimate ar guments on the
evidence and all proper inferences that can be drawn from that evidence” but may not
“speculate without a factual basis” or “misstate the evidence.” State v. Peltier, 874 N.W.2d
792, 804-05 (Minn. 2016) (quotations omitted). The prosecutor also “must refrain from
making statements that will inflame the passions or prejudices of the jury.” State v.
Duncan, 608 N.W.2d 551, 556 (Minn. App. 2000), review denied (Minn. May 16, 2000).
And, “[i]t is improper for the pr osecutor to make statements ur ging the jury to protect
society or to send a message with its verdict.” Id. A prosecutor in a sex-abuse case must
adhere to the highest ethical standards. State v. Jahnke, 353 N.W.2d 606, 611 (Minn. App.
1984).
6
In Duncan, this court examined similar claims of prosecutorial misconduct in a trial
involving child sex-abuse charge s. 608 N.W.2d at 555-56. Dunc an raised several
challenges to the prosecutor’s c losing argument including that the prosecutor improperly
referred to Duncan as a “predator” and used various synonyms of the word throughout
closing argument. Id. at 556. This court determined that the prosecutor intended to inflame
the prejudices of the jury by referring to Duncan as a “predato r.” Id. Duncan also
challenged the prosecutor’s statement that “[i]t’s time in this country that we start believing
kids.” This court held that this remark was improper because i t could be construed as a
request that the jury return a guilty verdict in order “to send a message generally affirming
the allegations of children.” Id.
Similarly, in this case, the pro secutor referred to “men who p rey on children” and
urged the jury to listen to children. The prosecutor began her closing argument by stating,
“Children speak softly, and we really need to listen. We have to listen because the men
who sexually assault them are counting on their silence. That is why they pick them. Men
who prey on children pick children because they can be frighten ed or persuaded into
silence.” These statements refer generally to men who sexually assault children and
compare those men to predators. These statements also refer to children as a group. These
statements were not based on ev idence submitted at trial but we re meant to be a generic
appeal to the passions and prejudices of the jury and to urge the jury to send a message.
In fact, these statements are very similar to statements made a s part of the closing
arguments in two other child sex-abuse cases that were recently decided by this court. See
State v. Ciriaco-Martinez, A18-1415, 2019 WL 2999783 (Minn. App. July 1, 2019); State
7
v. Danquah , A18-1581, 2019 WL 3293790 ( Minn. App. July 22, 2019). 1 I n
Ciriaco-Martinez, the prosecutor began her closing argument by stating: “Childr en speak
quietly, so we have to listen. We have to listen because the m en who prey upon them are
counting upon their silence, that is why they pick them. Men w ho prey upon children do
so because they think they can get away with it.” Ciriaco-Martinez, 2019 WL 2999783
at *2. Similarly, in Danquah, the prosecutor started the closing argument by stating:
Children speak quietly, and so we have to listen to them. We
have to listen because the men who sexually assault children
are counting on their silence, that is why they pick them. Men
who sexually assault children pi ck children because they can
be frightened or persuaded into staying quiet. . . .

They prey upon children because they are going to be
uncomfortable talking about what happened to them.

A18-1581, 2019 WL 3293790 at *5. I n each of these three cases (Ciriaco-Martinez,
Danquah, and this case), the Hennepin County prosecutor began the clos ing argument
using essentially the same language urging the jury to “listen” to the children and referring
generally to men who “prey” upon children. The similarity of t hese three closing
arguments reinforces our conclusion that the prosecutor’s statements in this case were not
drawn from facts in evidence. Further, it is concerning to us that prosecutors from
Hennepin County are using what is essentially a script analogiz ing the men involved in
child sexual-abuse cases to predators and urging the jury to send a message by listening to

1 The prosecutor who handled the Ciriaco-Martinez case is with the Hennepin County
Attorney’s office, but is a different prosecutor than the prosecutor who handled this case.
The prosecutor who handled the Danquah case is the same Hennepin County prosecutor
that handled this case.
8
the children. See Duncan , 608 N.W.2d at 556 (stating pr osecutors “must refrain from
making statements that will inflame the passions or prejudices of the jury” and may not
“make statements urging the jury to protect society or to send a message with its verdict”).
In sum, we conclude that the pros ecutor’s reference in her clos ing argument to
“[m]en who prey on children” was an improper appeal to the pass ions and prejudices of
the jury. Likewise, we conclude that the prosecutor’s statemen t that “we really need to
listen [to children]” was an impr oper attempt to inject into th e trial the broader societal
issue of protecting children from sexual abuse.
The prosecutor tasked the jury with solving a societal problem and appealed to the
jury’s passions and prejudices. But the jury’s “role is limite d to deciding dispassionately
whether the state has met its burden in the case at hand of pro ving the defendant guilty
beyond a reasonable doubt.” State v. Salitros, 499 N.W.2d 815, 819 (Minn. 1993). The
prosecutor’s statements constitute error that is plain.
B. Torres Garcia’s substantial rights were not affected.
We next examine whether Torres Garcia’s substantial rights were affected. Torres
Garcia argues that he is entitled to a new trial because the prosecutor’s statements affected
his substantial rights. We are not persuaded.
The state has the burden to show that the misconduct did not af fect appellant’s
substantial rights once the appellant has established an error that is plain. Ramey, 721
N.W.2d at 302. This requires a showing that there is no reason able likelihood that the
absence of the misconduct in question would have significantly affected the jury’s verdict.
Id. To determine whether there is “a reasonable likelihood that t he absence of the
9
misconduct would have had a significant effect on the jury’s ve rdict, [this court]
consider[s] the strength of the e vidence against the defendant, the pervasiveness of the
improper suggestions, and whethe r the defendant had an opportun ity to . . . rebut the
improper suggestions.” State v. Davis , 735 N.W.2d 674, 682 (Minn. 2007); see also
Peltier, 874 N.W.2d at 805-06.
Here, there is significant evidence of Torres Garcia’s guilt. A.C.C. testified that she
went into Torres Garcia’s room to drink apple juice and was giv en candy. Torres Garcia
shut his bedroom door and removed A.C.C.’s clothing along with his own. A.C.C. stated
that Torres Garcia lifted her onto the bed and touched her body. With the aid of exhibits,
A.C.C. indicated that Torres Garcia touched her “girl private” with his “boy private.” She
testified that his “boy private” went inside her “girl private” and that it felt “bad.” A.C.C.’s
m o t h e r c o n f i r m e d t h a t A . C . C . t o ld her that Torres Garcia touche d her. The forensic
interviewer at CornerHouse testi fied that A.C.C. gave “sensory details” which gave her
account added credibility.
At the close of trial, the district court told the jury that “t he arguments or other
remarks of an attorney are not evidence.” These instructions “lessened the impact” of the
prosecutor’s improper statements. State v. Hawkins, 511 N.W.2d 9, 13 (Minn. 1994); see
also State v. Washington , 521 N.W.2d 35, 40 (Minn. 1994) (“The [district] court’s
instructions to the jury are als o relevant in determining wheth er the jury was unduly
influenced by the improper comments.”). And the prosecutor’s improper statements were
only a relatively small part of the prosecutor’s closing argument. Given the strength of the
state’s evidence, the limited nature of the prosecutor’s improper statements, and the district
10
court’s instruction to the jury, we conclude that Torres Garcia’s substantial rights were not
affected. See Montanaro v. State , 802 N.W.2d 726, 734 (Minn. 2011) (concluding that,
after review of the prosecutor’s closing argument in light of t he entire record, any
misconduct viewed in isolation or collectively did not have a s ignificant impact on the
jury’s verdict and did not affect substantial rights).
Finally, while the prosecutor’s statements during her closing a rgument did not
deprive Torres Garcia of a fair trial, we urge prosecutors in H ennepin County and
e l s e w h e r e t o r e f r a i n f r o m u s i n g t h i s s t a n d a r d l a n g u a g e . I n a case with less evidence
supporting the convictions, we may not be so inclined to conclude that the misconduct was
not prejudicial.
II. Appellant’s Sixth Amendment right to confront witnesses was not violated.
Torres Garcia argues that the district court deprived him of hi s Sixth Amendment
right to confront witnesses against him when it allowed his sta tements, translated by an
interpreter, into evidence through the testimony of Sergeant Fa ulconer. He contends that
the translated statements were not his own and that the transla tor was the declarant.
Because Torres Garcia did not object at trial to the admission of his interpreted statements,
the plain-error test applies. See State v. Tscheu , 758 N.W.2d 849, 863-64 (Minn. 2008)
(applying plain-error test to Confrontation Clause issue); State v. Manthey , 711 N.W.2d
498, 504 (Minn. 2006) (applying plain-error test to hearsay question).
The Sixth Amendment to the United States Constitution provides that in all criminal
prosecutions “the accused shall enjoy the right . . . to be con fronted with the witnesses
against him.” U.S. Const. amend. VI; see also Minn. Const. art. I, § 6; State v. Hull, 788
11
N.W.2d 91, 100 (Minn. 2010) (noting that Confrontation Clause c laims are analyzed
identically under the United States and Minnesota Constitutions ) . T h e C o n f r o n t a t i o n
Clause bars the admission of testimonial out-of-court statements unless (1) the declarant is
unavailable and (2) the defendant had a prior opportunity to cr oss-examine the declarant.
Andersen v. State , 830 N.W.2d 1, 9 (Minn. 2013) (citing Crawford v. Washington , 541
U.S. 36, 68, 124 S. Ct. 1354, 1374 (2004)). “A successful Confrontation Clause claim has
three prerequisites: the statement in question was testimonial, the statement was admitted
for the truth of the matter asse rted, and the defendant was una ble to cross-examine the
declarant.” Id.
To establish whether Torres Garcia’s Sixth Amendment right was violated, we must
first determine the declarant of Torres Garcia’s interpreted statements. The supreme court
recently decided this issue in State v. Lopez-Ramos , __ N.W.2d __, 2019 WL 2442056,
at *1 (Minn. June 12, 2019). “[F]or purposes of applying the p lain-error doctrine, [this]
court examines the law in existence at the time of appellate re view.” State v. Kelley, 855
N.W.2d 269, 277 (Minn. 2014). We thus analyze Torres Garcia’s argument under Lopez-
Ramos.
In Lopez-Ramos, the supreme court examined whether the admission of statements
made by a defendant using a Spanish-language interpreter violat ed the Confrontation
Clause and hearsay rules. The supreme court held that the use of an interpreter to translate
a statement from one language to a nother does not implicate the Confrontation Clause.
Lopez-Ramos, 2019 WL 2442056, at *6. The supreme court reasoned that the act of
translating a defendant’s statement from one language to anothe r “does not transform the
12
interpreter into a witness against the defendant.” Id. The supreme court noted that “[t]he
role of the interpreter is not to provide or vary content; the role of the interpreter is to relay
what the defendant said in another language. In this way, an i nterpreter is not a witness
against the defendant.” Id. Based on the supreme court’s holding in Lopez-Ramos, we
conclude that Torres Garcia is the declarant of his translated statements, not the interpreter.
See id. Thus, the Confrontation Clause is not implicated and the post conviction court did
not err by determining that Torres Garcia’s Sixth Amendment right was not violated.
Torres Garcia also challenges the admission of his translated statements on hearsay
grounds, arguing their admission was plain error on that basis. “Hearsay” is an out-of-court
statement of a declarant offered into evidence to prove the tru th of the matter asserted.
Minn. R. Evid. 801(c). But, a statement offered against a part y that is the party’s own
statement is not hearsay. Minn. R. Evid. 801(d)(2)(A). Becaus e Torres Garcia is the
declarant of his translated statements and the state offered To rres Garcia’s translated
statements as evidence against h im, his statements are not hear say under Minn. R. Evid.
801(d)(2)(A). Lopez-Ramos, 2019 WL 2442056, at *8. Accordingly, the postconviction
court did not err by concluding that these statements were not hearsay under Minn. R. Evid.
801(d)(2)(A).
III. The district court did not abuse its discretion by denying Torr es Garcia’s
motion for a downward dispositional departure.

Appellate courts “afford the [di strict] court great discretion in the imposition of
sentences and reverse sentencing decisions only for an abuse of that discretion.” State v.
Soto, 855 N.W.2d 303, 307-08 (Minn. 2014) (quotation omitted). “A district court abuses
13
i t s d i s c r e t i o n w h e n i t s r e a s o n s f o r d e p a r t u r e a r e l e g a l l y i m p e rmissible and insufficient
evidence in the record justifies the departure.” State v. Solberg , 882 N.W.2d 618, 623
(Minn. 2016).
The Minnesota Sentencing Guidelines prescribe “a sentence or ra nge of sentences
that is presumed to be appropriate.” Soto, 855 N.W.2d at 308 (quotation omitted). A
district court may depart from the presumptive sentencing guide lines only if substantial
and compelling circumstances warrant doing so. Solberg, 882 N.W.2d at 623. Substantial
and compelling circumstances are those that make a case atypica l. Taylor v. State , 670
N.W.2d 584, 587 (Minn. 2003).
A dispositional departure occurs when the district court orders a disposition other
than that recommended in the sen tencing guidelines. Minn. Sent . Guidelines 1.B.5.a
(2014). A district court may impose a downward dispositional departure from a
presumptive prison commitment if the defendant is particularly amenable to treatment in a
probationary setting. State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982). Factors relevant in
determining whether a defendant is particularly amenable to tre atment in a probationary
setting include “the defendant’s age, his prior record, his rem orse, his cooperation, his
attitude while in court, and the support of friends and/or family.” Id.
Torres Garcia argues that the postconviction court abused its discretion by affirming
the district court’s denial of his motion for a downward dispositional departure because he
is particularly amenable to probation based on his age (54 at the time of sentencing), poor
health, and remorse. Torres Garcia does not provide any support for his argument that his
age makes him particularly amenable to probation. And while Mi nnesota courts have
14
found that young age might support a finding of particular amen ability, see Soto , 852
N.W.2d at 310, Torres Garcia does not cite to any cases supporting a finding of particular
amenability based on old age. Mo reover, there is nothing in th e record to demonstrate
Torres Garcia’s remorse. Rather, the district court expressly noted Torres Garcia’s lack of
remorse. When it denied his mo tion for a downward dispositiona l departure, the district
court stated:
I have not through these proceedings seen any remorse
demonstrated by you and I—I am confused about whether you
are now or whether you will be i n the future willing to admit
what you did to the victim in th is case. You’ve consistently
denied it, but earlier we heard in testimony that you prayed for
forgiveness. . . .

So it seems like you want to admit this offense but can’t
get yourself to do it. And until you are able to admit it, you
won’t be amenable to treatment. I don’t find either that or any
other basis to depart downwards.

The record supports the district court’s findings. Although Torres Garcia cried and asked
for forgiveness during his interv iew with police, Torres Garcia has never admitted guilt.
The presentence investigative report noted that
[i]t was difficult to assess [To rres Garcia] based on his denia l
of the offense and his limited insight about his conviction. . . .
W h e n a s k e d w h y t h e v i c t i m w o u ld fabricate this offense,
[Torres Garcia] went on to explain that the victim’s mother
disliked him and likely told the victim to say things to get him
in trouble. He conveyed no remorse for the victim.

The Guidelines provide that a di strict court may depart when s ubstantial and
compelling circumstances are present. State v. Walker, 913 N.W.2d 463, 468 (Minn. App.
2018). But a “departure is not mandatory, and an appellate court will reverse a sentencing
15
court’s refusal to depart only in a rare case.” Id. (quotation omitted). Here, the district
court acted well within its discr etion when it sentenced Torres Garcia to the presumptive
disposition of an executed senten ce of 156 months’ imprisonment . The postconviction
court did not err by affirming the denial of Torres Garcia’s mo tion for a downward
dispositional departure.
Affirmed.