State of Minnesota, Respondent,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A19-1346

State of Minnesota,
Respondent,

vs.

Jimmy Jay Hortiz,
Appellant.

Filed June 7, 2021
Affirmed in part, reversed in part, and remanded
Segal, Chief Judge

Hennepin County District Court
File No. 27-CR-18-29441

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

Michael O. Freeman, Hennepin County Attorney, Mark V. Griffin , Senior Assistant
County Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Julie Loftus Nels on, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Segal, Chief Judge; Bjorkman, Judge; and Bratvold,
Judge.
NONPRECEDENTIAL OPINION
SEGAL, Chief Judge
In this direct appeal from a judgment of conviction for first -degree criminal sexual
conduct, and following a stay and remand for postconviction proceedings, appellant argues
2
that the district court erred (1) in its ruling on a motion to admit Spreigl evidence and that
this improperly induced his decision not to testify, (2) in denying appellant an evidentiary
hearing on his petition for postconviction relief, and (3) in ordering appellant to reimburse
the public defender in the amount of $10,000 without first holding a hearing. We affirm
with respect to the first two issues but, because appellant i s entitled to a hearing before
reimbursement can be ordered, we reverse and remand on the third issue.
FACTS
The following summarizes the testimony presented at the trial. On November 29,
2018, K.N. went to a bar in Bloomington for a date. After discovering that the bar was at
a hotel, she “kind of blew [her date] off because [she] thought it was really inappropriate,”
and her date left. K.N. remained at the bar and continued to drink alcoholic beverages and
socialize with other people at the bar. There was a group of people at the bar who were at
the hotel for a work conf erence, but K.N. did not interact with this group.
K.N. testified that, as the evening wore on, she began to feel intoxicated. Her last
memory of being in the bar area was that she was sitting by herself and talking to her ex -
husband on the phone. K.N. ’s next memory was waking up on a bed in a hotel room with
a man on top of her penetrating her vagina with his penis. She did not recognize the man
and yelled at him to get off of her, but he did not. During the sexual assault , the man
grabbed K.N.’s hair to tilt her head back, strangled her, and repeatedly told her that he was
going to kill her. She lost consciousness several times.
K.N. eventually managed to escape and ran into the hallway. She attempted to call
911, but the man had broken her pho ne. She curled up in a ball and began having a panic
3
attack. A hotel employee called 911 to report a guest hyperventilating, and law
enforcement and paramedics responded to the call. K.N. did not want to speak with the
officers because they were male, b ut allowed the female paramedics to take her to the
hospital. She was admitted to the hospital at approximately 1:00 a.m. When K.N. arrived
at the hospital, she was wearing a coat, men’s T-shirt, leggings, underpants, a men’s sock,
an anklet sock, and boots. The coat, leggings, underpants, anklet sock, and boots belonged
to K.N., but the T-shirt and other sock did not. She was missing the dress, bra, and other
anklet sock that she had been wearing earlier that night , along with her eyeglasses.
A police officer was dispatched to the hospital based on a report of a sexual assault.
The officer took a statement from K.N. and took photographs to document her injuries, the
damage to her cell phone, and the clothing she was wearing when she arrived at the
hospital. The officer then passed along the information to two detectives, who went to the
hotel to investigate the incident. When the detectives arrived at the ho tel, they first spoke
with one of the individuals in charge of the conference. He informed the detectives that
another employee attending the conference had sent him a text message the previous night
to inform him that “[c]ops and paramedics are here assi sting a young lady” whom he
believed “was in one [of] our employees’ rooms.” The detectives spoke with the employee
who sent the text message, and the employee reported that he had heard yelling and crying
coming from room 464. Specifically, a male was y elling and a female was crying and
asking to leave.
Appellant Jimmy Jay Hortiz was the individual staying in room 464. The detectives
spoke with Hortiz, and he acknowledged that he had seen K.N. at the bar the previous night
4
and offered to call her a ca b at one point because she was crying. Hortiz denied that a
woman had been in his hotel room, gave the detectives permission to search the hotel room,
and assured them that none of K.N.’s property would be discovered in the room. The
detectives then searched room 464. They observed a blood -like substance and strands of
long hair on the bed. They reported their discovery to Hortiz, who again denied that there
had been a woman in his room and stated the blood may have been his. The detectives
then returned to room 464 and conducted a more thorough search with the assistance of a
crime-scene technician. The crime -scene technician discovered a piece of a red acrylic
fingernail that matched the one K.N. was missing. Based on this discovery , Hortiz was
placed under arrest. The crime -scene technician and detectives then continued to search
the room and discovered K.N.’s missing dress, anklet sock, and bra hidden above the
ceiling tiles in the room.1 The dress and sock were damp, and the bra was torn.
The detectives next spoke with Hortiz for a third time after giving him a Miranda
warning. Hortiz stated that K.N. had followed him up to his hotel room, and that he allowed
her into his room to use the bathroom. He told the detectives that she came out o f the
bathroom wearing only a towel and attempted to kiss him, and then became angry and
threw the phone when he told her to get off of him. Hortiz further stated that she became
increasingly angry but willingly left his room after approximately ten minut es. He denied
touching her other than to push her away when “she was trying to force herself” on him.
He told the detectives that he hid her clothing because he was embarrassed, and denied that

1 Her eyeglasses were never found.
5
she was ever on the bed. After the detectives reminded Hortiz that they had discovered
strands of long hair on the bed, he changed his statement and told them that K.N. had lain
down on the bed and stated , “I’m sleeping right here.” After the detectives described
K.N.’s injuries, including that she suffered signi ficant damage to her vagina, Hortiz stated
that K.N. had masturbated while lying in the bed.
Respondent State of Minnesota charged Hortiz with first -degree criminal sexual
conduct and third -degree assault. K.N., the forensic nurse who had examined K.N ., the
detectives, the crime -scene technician, and the two individuals from the conference
testified at the trial. Hortiz waived his right to testify. The state also introduced the test
results from the DNA swabs collected during the sexual-assault examination. The samples
taken from K.N.’s neck and under her fingernails both revealed a mixture of DNA from at
least two individuals. The DNA test results showed that , while more than 99.99% of the
general population could be excluded as contributors, Hortiz could not be so excluded.
Hortiz was a match for the DNA found in the samples from K.N.’s vagina, perineum,
cervix, and mons pubis. The jury found Hortiz guilty on both counts and he was sentenced
to 171 months in prison.
Hortiz appealed his conviction and also pursued a petition for postconviction relief.
The district court denied the petition without an evidentiary hearing.

6
DECISION
I. Hortiz’s waiver of his right to testify was not rendered invalid by t he district
court’s Spreigl ruling.

The first error asserted by Hortiz is that the district court abused its discretion in
ruling on the state’s motion to admit Spreigl evidence2 and that this improperly induced
him to waive his right to testify. We review challenges related to whether a defendant’s
waiver of the right to testify was voluntary and knowing for an abuse of discretion. State
v. Ali, 855 N.W.2d 235, 249 (Minn. 2014); State v. Berkovitz, 705 N.W.2d 399, 405 (Minn.
2005). The right to testify is personal and may only be waived by the defendant. State v.
Rosillo, 281 N.W.2d 877, 878 -79 (Minn. 1979).
Through its Spreigl motion, the state sought to admit evidence tha t Hortiz had
allegedly sexually assaul ted a different woman at a hotel while on a business trip in
California a number of years earlier . Hortiz was criminally charged, but the charge was
dismissed by the California court and no trial was held.
The district court denied the state’s motion to admit the evidence in an oral ruling
from the bench. The district court, however, noted that the state might be able to question
the defendant about it on cross -examination or in rebuttal if Hortiz opened th e door by
lying about the prior incident. The district court stated as follows:

2 In Minnesota, evidence of other crimes and prior bad acts is “often referred to as Spreigl
evidence after the supreme court’s decision in State v. Spreigl .” State v. Babcock ,
685 N.W.2d 36, 40 (Minn. App. 2004) , review denied (Minn. Oct. 20, 2004) ; see also
Minn. R. Evid. 404(b); State v. Spreigl, 139 N.W.2d 167, 170-71 (Minn. 1965).
7
And again, we don’t know because the court records are
gone why it got dismissed, but as everyone agrees, I need to
assume it was dismissed by the Court at the preliminary
hearing for basically a lack of [probable cause], and so while it
is not an acquittal and it is fair game for Spreigl—my— . . .
ruling on this matter is that it is not admissible, that does not
mean that it did not happen and that if the door [is] opened, I
mean like nobody can lie about it, right?

But—and so it may be that there’s some questioning on
cross-examination of the defendant or in rebuttal but in the
State’s case in chief it is not admissible and that portion of
[Hortiz’s statement to law enf orcement] needs to be redacted.

The prosecutor asked the district court to clarify whether its reason for denying the motion
was that the state had failed to establish by clear and convincing evidence that the incident
occurred. The district court confi rmed that was the ruling, and neither party asked for any
additional clarification.
Hortiz argues that the district court abused its discretion in its evidentiary ruling
because the ruling was “confusing and it confused” him. He acknowledges that the di strict
court went through the proper analysis to evaluate the admissibility of the Spreigl evidence
and properly determined that the evidence was inadmissible because the state failed to
establish clear and convincing evidence that the prior incident occurred. See State v. Asfeld,
662 N.W.2d 534, 542 (Minn. 2003) (describing the five -prong analysis for Spreigl
determinations). Horitz argues, however, that “[t]he analysis should have stopped there.
But instead, the court qualified its ruling, stating that the evidence ‘may’ be admissible in
cross-examination of Hortiz, ‘or in rebuttal’” and that this qualification rendered the
evidentiary ruling erroneous and improperly induced Hortiz to forego his right to testify .
Hortiz maintains that he is thereby entitled to a new trial. We disagree.
8
First, we note that the ruling of the district court is that the Spreigl evidence was not
admissible. The district court’s comment about what the court would allow if Hortiz
testified and lied about the incident cannot fairly be characterized as a ruling. It is properly
read as only a cautionary statement or warning. See, e.g., State v. Robledo -Kinney, 615
N.W.2d 25, 29-31 (Minn. 2000) ( holding a comment by the court that a defendant’s
statement “[a]t best . . . may be used to impeach [him] should he testify at trial
inconsistently” is not “a definitive statement of what the district court would actually do.”).
As in Robledo-Kinney, the district court here never categorically ruled that the
evidence would be admitted for any purpose; the only definitive ruling issued by the district
court was that the evidence was inadmissible as Spreigl evidence in the state’s case in chief.
See id. at 31. The statement is properly read as a warning that if Hortiz were to testify and
open the door on the issue during his testimony , the state “may” be permitte d to ask
questions in response. “A party ‘opens the door’ when it introduces evidence tha t creates
a right in the opposing party to respond with evidence that would otherwise be
inadmissible.” State v. Fraga , 898 N.W.2d 263, 272 ( Minn. 2017). Thus, the district
court’s comment is appropriately characterized as a caution and not a ruling.
Second, independent of how the district court’s statement is characterized, Hortiz’s
argument that the district court’s comment induced him to waive his right to testify because
he feared that the prior incident would come into evidence is not sufficient to render his
waiver invalid. A full and careful record was made of Hortiz’s waiver. During questioning
from his counsel, Hortiz acknowledged that he had the opportunity to discuss the waiver
with his counsel “numerous times” during preparation for trial and th at “last week and this
9
week, while . . . in trial” Hortiz met with his counsel “a couple of times to specifically
discuss whether or not [he] wanted to testify.” Hortiz also agreed that he had discussed
with his counsel “the pros and cons of testifying ,” that he had “enough time to think about
[the] decision,” and that he did not need “any more time to discuss [his] options and
whether or not [he’s] testifying.” After stating that his decision was not to testify, he was
questioned on the record by the district court and Hortiz again confirmed that this was his
decision and that he had enough time to consider whether to testify.
Hortiz relies on the case of State v. Gassler, 505 N.W.2d 62 (Minn. 1993), in support
of his argument. That reliance is misplaced. In Gassler, the district court admitted
evidence of prior convictions for the purpose of impeachment. 505 N.W.2d at 66. The
defendant argued on appeal that the court’s ruling violated his right to testify in his own
defense. Id. The Minnesota Supreme Court rejected this argument, noting that “[t]he mere
fact that a trial court would allow impeachment evidence if a defendant chooses to testify
does not necessarily implicate his constitutional right to testify in his own defense.” Id. at
68. The supreme court concluded that “it is only when a trial court has abused its discretion
. . . that a defendant’s right to testify may be infringed by the threat of impeachment
evidence.” Id. Here, with the district court’s comment that there “may be . . . some
questioning” about the prior criminal charge, we would be left to speculate about the
circumstances in which the district court might have allowed the questioning. We cannot
conclude that the court abused its discretion based on such speculation.
In light of this record, we conclude that Hortiz has failed to satisfy his burden of
proving that he did not voluntarily and knowingly waive his right to testify. Berkovitz, 705
10
N.W.2d at 405. Hortiz indicated that he made the decision to waive the right to testify after
multiple discussions with counsel and that he did not need more time to make the decision.
The district court appropriately ruled that evidence of the California allegation was
inadmissible in the state’s case -in-chief. The district court’s speculation that “it may be
that there’s some questioning on cross-examination of the defendant or in rebuttal,” did not
render invalid Hortiz’s knowing and voluntary waiver of his right to testify .
II. The district court did not abuse its discretion by s ummarily denying the
petition for postconviction relief.

Hortiz next argues that the district court abused its discretion by denying his petition
for postconviction relief without a hearing. Hortiz petitioned for postconviction relief
based on his ass ertion that “the district court’s Spreigl ruling was erroneous and
prejudicial” and that “the sole reason [he] did not testify” was his fear that if he chose to
testify then the jury would learn of the California allegation. In the affidavit he submitted
in support of his petition, he asserted that he “very much wanted to testify” but waived his
right because he did not want to have to “defend [himself] against allegations from 19 years
ago,” in addition to K.N.’s allegations. He argues that , given the re quirement that the
district court view the evidence in the light most favorable to him and the low standard for
obtaining an evidentiary hearing, it was an abuse of discretion to deny the petition without
first holding a hearing.
“Upon filing a petition for postconviction relief, an evidentiary hearing must be held
unless the petition and the files and records of the proceeding conclusively show that the
petitioner is entitled to no relief. ” Andersen v. State, 913 N.W.2d 417, 422 (Minn. 2018)
11
(quotation omitted). “In determining whether an evidentiary hearing is required, a
postconviction court considers the facts alleged in the petition as true and construes them
in the light most favorable to the petitioner.” Brown v. State, 895 N.W.2d 612, 618 (Minn.
2017). We review the “summary denial of a petition for postconviction rel ief for an abuse
of discretion.” Andersen, 913 N.W.2d at 422.
In denying the postconviction petition, the district court issued a thorough nine-page
order that set out its reasoning for denying the petition without an evidentiary hearing. At
the outset of its analysis in the order, the court specifically noted , contrary to Hortiz’s
argument, that “[f]or purposes of this Order, the court will consider [Hortiz’s] fear to be
true” that, if he exercised his right to testify, evidence about the California allegation would
be admitted. The district court therefore properly viewed the evidence in the light most
favorable to Hortiz by accepting his assertion as true for purposes of ruling on the petition.
In its order, t he district court reviewed Hortiz’s thorough waiver of his right to
testify, noting that not only counsel, but the court questioned Hortiz to ensure that the
waiver decision was his voluntary decision after having adequate time to consider and
discuss the matter with his counsel. The order also notes that the court’s actual Spreigl
ruling was to deny the state’s motion to admit the evidence . The district court concluded,
as do we, that the court’s comment amounted to no more than a warning. For these reasons,
the district court concluded that Hortiz failed to establish that he would be entitled to relief,
even treating the assertions in his affidavit as true.

12
We conclude that the district court applied the correct legal standard and did not
abuse its discretion by summarily denying the petition for postconviction relief.
III. The dis trict court abused its discretion by issuing a reimbursement order
without first holding a hearing.

Finally, Hortiz argues that the district court erred by issuing an order requiring him
to reimburse the public defender’s office without first holding a hearing. “We review an
order to reimburse the costs expended by a public defender for abuse of discretion.” State
v. Alexander, 855 N.W.2d 340, 345 (Minn. App. 2014).
After trial, the district court ordered Hortiz to reimburse the public defender’s office
in the amount of $10,000. 3 Hortiz argues that the district court was required to hold a
hearing prior to issuing the reimbursement order, and therefore the order must be reversed
and the issue remanded for a hearing. The state agrees, and so do we. “The proper
procedure for obtaining re imbursement for public defender services requires the court to
conduct a hearing on the defendant’s financial ability to pay.” Foster v. State, 416 N.W.2d
835, 837 (Minn. App. 1987) (emphasis added). “The purpose of the hearing is to determine
the cost of the public defender’s services and whether the defendant has the ability to pay
the fee.” Alexander, 855 N.W.2d at 345. The district court abuses its discretion when it
issues a reimbursement order without first holding “the requisite hearing.” Id. Because
the district court ordered Hortiz to reimburse the public defender’s office without first

3 The district court ordered the reimbursement to the public defender’s office based on
evidence that persuaded the court that Hortiz was not truthful in disclosing his assets in his
affidavit when he applied for the appointment of a public defender. The d istrict court
concluded that Hortiz likely would not have qualified for a public defender if he had made
an accurate disclosure.
13
holding a hearing, we reverse the reimbursement order and remand to the district court for
a hearing on the matter.
Affirmed in part, reversed in part, and remanded.