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This opinion will be unpublished and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
A19-2014

State of Minnesota,
Respondent,

vs.

Oscar Garcia-Espino,
Appellant.

Filed November 23, 2020
Affirmed
Reilly, Judge

Hennepin County District Court
File No. 27-CR-19-12608

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

Michael O. Freeman, Hennepin County Attorney, Linda M. Freyer, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Soren Paul Petrek, Bridge Litigators, Minneapolis, Minnesota (for appellant)

Considered and decided by Frisch, Presiding Judge; Reilly, Judge; and Reyes,
Judge.
U N P U B L I S H E D O P I N I O N
REILLY, Judge
In his direct appeal from his conviction for second-degree criminal sexual conduct,
appellant argues that (1) the evidence was insufficient to support his conviction beyond a
reasonable doubt, and (2) the district court’s jury instructions were erroneous. We affirm.

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FACTS
This appeal arises out of appellant Oscar Garcia -Espino’s conviction for engaging
in sexual contact with L.M. from approximately January 2010 to December 2016, when
she was under 13 years old and appellant was more than 36 months older than she.
Appellant was in a romantic relationshi p with the sister of L.M.’s stepfather , and L.M.
visited appellant’s house for family parties when she was younger. When L.M. was 7 or 8
years old, she slept over on appellant’s couch following a party. In the middle of the night,
appellant sat on the couch, put his arm around L.M., and put his hand on her vagina over
her clothes. When she tried to get away, appellant grabbed her arm and pulled her toward
him. On a second occasion when L.M. was under 10 years old, appellant followed her into
a bathroom during a family gathering, shut the door behind him, and touched her vagina
over her pants. Appellant also touched L.M.’s chest area over her clothes and directly on
her bare skin, and grabbed L.M.’s hand and made her touch his penis over his clothes. On
a third occasion, when L.M. was 10 or 11 years old, appellant touched her vagina over her
clothing at a party.
In 2019, when L.M. was about 14 years old, L.M. disclosed the sexual contact to a
school counselor and to her mother, R .M. R.M. reported L.M.’s allegations to the police.
A police officer arranged for L.M. to be interviewed at CornerHouse, a nonprofit agency
that conducts forensic interviews and “provide[s] therapy for kids and families who have
experienced trauma.” Elizabeth Eagle, a forensic interviewer with CornerHouse,
interviewed L.M. in April 2019. About a month later, L.M. had a second CornerHouse
interview with Stephany Randolph.

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Respondent State of Minnesota charged appellant with one count of second-degree
criminal sexual conduct under Minn. Stat. § 609.343, subd. 1(h)(iii) (2016) (sexual
contact—significant relationship —complainant under age 16 —multiple acts), and one
count of second -degree criminal sexual conduct under Minn. Stat. § 609.343, subd. 1(a)
(2016) (sexual contact—complainant under age 13 and perpetrator more than 36 months
older than the victim). The complaint alleged that the criminal sexual conduct occurred
between approximately January 1, 2012, and December 31, 2016. The state later amended
the complaint to allege that the criminal sexual conduct occurred between approximately
January 1, 2010, and December 31, 2016.
The district court conducted a jury trial in October 2019. L .M., her mother , an
investigating police officer, and Randolph testified. The state also presented recordings
and transcripts of L.M.’s CornerHouse interviews with Eagle and Randolph. Randolph
testified that “[i]t is not uncommon for a child or teen to come back for what w e call a
follow-up interview.” Randolph noted that there were some inconsistencies between
L.M.’s two interviews, but explained that “ sometimes when someone experiences
something traumatic, especially over and over again, . . . they sometimes recall different
events at different times.” Randolph also testified that “[i]t is not all that common for kids
to disclose [abuse] immediately,” and “a lot of kids don’t tell right away when they’ve been
abused.”
Appellant, his significant other, his son, his brother, and a defense expert testified
on appellant’s behalf . Appellant denied the allegations against him. Appellant
acknowledged that L.M. may have stayed overnight at his home but testified that he never

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touched L.M. inappropriately at any time. Appellant’s significant other testified that she
had been in a relationship with appellant for more than 20 years. She could not remember
any specific instances when L.M. stayed over at her home, but acknowledged that appellant
could have invited L.M. to sleep over. Appellant’s son testified that he could not remember
L.M. sleeping over at the home and stated that he never observed any behavior on L.M.’s
part suggesting that she was afraid of appellant.
The jury found appellant guilty of second -degree criminal sexual conduct in
violation of Minn. Stat. § 609.343, subd. 1(a) (sexual contact—complainant under age 13
and perpetrator more than 36 months older than the victim), and not guilty of second-degree
criminal sexual conduct under Minn. Stat. § 609.343, subd. 1(h)(iii) (sexual contact —
significant relationship —complainant under age 16 —multiple acts). The d istrict court
imposed sentence. This appeal follows.
D E C I S I O N
I. Sufficient evidence supports appellant’s conviction for second-degree criminal
sexual conduct.
A. The direct-evidence standard of review applies.
The parties disagree about the appropriate standard of review. The state argues that
the conviction is sustained by direct evidence from L.M.’s testimony. Appellant argues
that a heightened standard of review a pplies. Direct evidence is evidence “based on
personal knowledge or observation and that, if true, proves a fact without inference or
presumption.” State v. Harris, 895 N.W.2d 592, 599 (Minn. 2017) (quotation omitted). In
contrast, circumstantial evidence is “evidence from which the factfinder can infer whether

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the facts in dispute existed or did not exist.” Id. (quotation omitted). We apply a
heightened standard of review when direct evidence of guilt on a particular element is not
sufficient to support the verdict by itself. Loving v. State , 891 N.W.2d 638, 643 (Minn.
2017).
Here, the traditional standard of review applies . At trial, L.M. described three
separate incidents of sexual contact, and her testimony is direct evidence of the events. See
State v. Brazil , 906 N.W.2d 274, 278 (Minn. App. 2017) (“Testimony provided by a
witness, concerning what the witness saw or heard, is considered direct evidence.”).
Because the state introduced direct evidence, we need not apply a heightened standard of
review.
B. Sufficient evidence supports the conviction beyond a reasonable doubt.
Appellant challenges the sufficiency of the evidence underlying his conviction for
second-degree criminal sexual conduct. In evaluating the sufficiency of the evidence,
reviewing courts “carefully examine the record to determine whether the facts and the
legitimate inferences drawn from them would permit the factfinder to reasonably conclude
that the defendant was guilty beyond a reasonable doubt of the offense of which he was
convicted.” State v. Waiters , 929 N.W.2d 895, 900 (Minn. 2019) (quotation omitted).
Appellate courts review the evidence “in the light most favorable to the conviction” and
“assume the jury believed the State’s witnesses and disbelieved any evidence to the
contrary.” State v. Ortega , 813 N.W.2d 86, 100 (Minn. 2012) (quotation omitted).
Appellate courts “will not disturb the verdict if the jury, acting with due regard for the

6
presumption of innocence and the requirement of proof beyond a reasonable d oubt, could
reasonably conclude that the defendant was guilty of the charged offense.” Id.
The jury found appellant guilty of second -degree criminal sexual conduct in
violation of Minn. Stat. § 609.343 (2016), which provides that a person is guilty of the
crime if:
the complainant is under 13 years of age and the actor is more
than 36 months older than the complainant. Neither mistake as
to the complainant’s age nor consent to the act by the
complainant is a defense. In a prosecution under this claus e,
the state is not required to prove that the sexual contact was
coerced.
Id., subd. 1(a). “Sexual contact ” includes “ the intentional touching by the actor of the
complainant’s intimate parts.” Minn. Stat. § 609.341, subd. 11(a)(i) ( 2016). “Intimate
parts” includes “the primary genital area, groin, inner thigh, buttocks, or breast of a human
being.” Id., subd. 5 (2016).
Sufficient evidence supports the criminal-sexual-conduct conviction. It is
uncontested that appellant, who was born in 1973, is more than 36 months older than L.M.,
who was born in 2005. L.M. testified that when she was 7 to 8 years old, appellant sat on
the couch where she had been sleeping, put his arm around her, and touched her vagina
over her clothes. When she tried to get away, appellant grabbed her arm and pulled her
back toward him. Appellant moved his hand around on her clothes and tried to put his
hand inside of her pants to touch her bare vagina. On another occasion, appellant followed
L.M. into a bathroom, touched her vag ina over her pants, and touched her breasts under
her clothes. Appellant also grabbed L.M.’s hand and made her touch his penis and rub his

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penis over his clothes. When she was about 10 or 11 years old, appellant touched L.M.’s
vagina over her clothing at a party.
Appellant argues that L.M.’s testimony is uncorroborated and not credible.
Appellant relies on State v. Huss for the proposition that in rare cases, the testimony from
a child sex-abuse victim may be insufficient to support a conviction without corroboration.
506 N.W.2d 290, 292 (Minn. 1993) . In that case, the three -year-old victim’s testimony
was “particularly troublesome” because she could not identify appellant as her abuser in
court, her “testimony was contradictory as to whether any abuse occurred at all, and was
inconsistent with her prior statem ents and other verifiable facts,” and the victim’s mother
and therapist exposed her to a “highly suggestive book on sexual abuse” that may have
“improperly influenced the child’s report of events.” Id. at 292 -93. Huss is readily
distinguishable from this case. Here, L .M. identified appellant as her assailant and
described multiple episodes of unwanted sexual contact when she was 7 to 11 years old.
The circumstances present in Huss are not present here.
Appellant also argues that L.M.’s testimony is not credible because she delayed
reporting the assault to her mother and gave inconsistent reports to the two CornerHouse
interviewers. L.M. testified that she told no one about the sexual contact because she was
scared and did no t know “what else [appellant] could have done.” Randolph, the
CornerHouse forensic interviewer, explained that it is “not all that common for kids to
disclose [abuse] immediately,” and “a lot of kids don’t tell right away when they’ve been
abused.” Randolph stated that victims sometimes delay reporting a sexual assault out of
“[f]ear of the person that harmed them” or “[f]ear of people finding out.” Randolph

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testified that it is not unusual to see inconsistencies between sexual-assault reports because
“sometimes when someone experiences something traumatic, especially over and over
again, they . . . sometimes recall different events at different times.”
Appellant’s arguments do not persuade us. Generally, “a conviction can rest on the
uncorroborated testimony of a single credible witness.” State v. Foreman , 680 N.W.2d
536, 539 (Minn. 2004) (quotation omitted); State v. Johnson, 568 N.W.2d 426, 435 (Minn.
1997) (“It is a well-established rule that a conviction can rest upon the testimony of a single
credible witness.”); see also Minn. Stat. § 609.347, subd. 1 ( 2016) (stating that in a
prosecution for a second -degree criminal -sexual-conduct crime under section 609.343,
“the testimony of a victim need not be corroborated”).
The jury heard testimony presented by both the state and the defense, including
testimony from L.M., R.M., the investigating police officer, a CornerHouse interviewer,
appellant, appellant’s family members, and a defense expert witness. Appellant testified
on his own behalf and denied the charges. The jury credited the testimony presented by
the state, and disbelieved the defense evidence and testimony to the contrary. The jury is
in the best position to assess witness credibility. State v. Profit, 591 N.W.2d 451, 467
(Minn. 1999). It is not the role of this court on appeal to reweigh the evidence or to assess
the credibility of the witnesses. See State v. Franks , 765 N.W.2d 68, 73 (Minn. 2009)
(“Our precedent does not permit us to re-weigh the evidence.”). Further, a reviewing court
will defer to the jury’ s credibility determinations even in the face of contrary evidence.
State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989). Deferring to the jury’s assessment of
witness credibility and assum ing that “the jury believed the state’s witnesses and

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disbelieved any evidence to the contrary,” State v. Porte , 832 N.W.2d 303, 309 (Minn.
App. 2013) (quotation omitted), we conclude that sufficient evidence supports appellant’s
conviction of second-degree criminal sexual conduct beyond a reasonable doubt.
C. The jury’s verdicts are not legally inconsistent.
Appellant argues that the jury’s verdict s are inconsistent. As a general rule,
“[n]othing in the constitution requires consistent verdicts.” State v. Bahtuoh, 840 N.W.2d
804, 820 (Minn. 2013) (quotation omitted). Thus, “a defendant who is found guilty of one
count of a two count indictment or complaint is not entitled to a new trial or a dismissal
simply because the jury found him not guilty of the othe r count, even if the guilty and not
guilty verdicts may be said to be logically inconsistent.” Id. at 821 (quotation omitted).
“A defendant is entitled to a new trial only if the verdict is legally inconsistent, as opposed
to merely logically inconsistent.” State v. Christensen, 901 N.W.2d 648, 651 (Minn. App.
2017). Whether a jury’s verdicts are legally inconsistent is a question of law that we review
de novo. Bahtuoh, 840 N.W.2d at 820 (citation omitted).
The jury’s verdicts are not legally inconsistent. To be legally inconsistent, a
defendant must be convicted on two (or more) offenses, and “proof of the elements of one
offense negates a necessary element of another offense.” State v. Cole, 542 N.W.2d 43,
51-52 (Minn. 1996). The jury found appellant guilty of second -degree criminal sexual
conduct in violation of Minn. Stat. § 609.343, subd. 1(a), and not guilty of second -degree
criminal sexual conduct under Minn. St at. § 609.343, subd. 1(h)(iii). Subdivision 1(a)
criminalizes sexual contact when “the complainant is under 13 years of age and the actor
is more than 36 months older than the complainant.” Subdivision 1(h)(iii) provides that a

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person is guilty of second -degree criminal sexual conduct if “the actor has a significant
relationship to the complainant, the complainant was under 16 years of age at the time of
the sexual contact, and . . . the sexual abuse involved multiple acts committed over an
extended period of time.” The elements of the two cri mes are different, and subdivision
1(h)(iii) has additional elements not present in subdivision 1(a), such as the provision that
the actor is in a significant relationship with the victim.
Here, nothing about the jury’s guilty verdict on the criminal-sexual-conduct charge
under Minn. Stat. § 609.343, subd. 1(a), negates a necessary element of criminal sexual
conduct under Minn. Stat. § 609.343, subd. 1(h)(iii). The jury determined the state proved
the elements of subdivision 1(a) beyond a reasonable doubt but did not satisfy its burden
related to the elements of subdivision 1(h)(iii). Thus, we conclude that appellant’s verdicts
are not legally inconsistent.
II. A new trial is not n ecessary to ensure the fairness, integrity, or public
reputation of judicial proceedings.
Appellant argues that the district court erred in failing to provide a unanimity
instruction regarding the separate alleged acts of sexual contact with L.M. upon which the
jury’s verdict for second-degree criminal sexual conduct could have been based. Appellant
did not request a unanimity instruction at trial or object to the jury instructions given by
the district court. A defendant’s failure to propose specific jury instructions or object to
instructions generally constitutes a forfeiture of that issue on appeal. State v. Cross, 577
N.W.2d 721, 726 (Minn. 1998). We may review the jury instructions for plain error. State

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v. Crowsbreast , 629 N.W.2d 433, 437 -38 (Minn. 2001) (providing that an unpreserved
claim of an omitted specific-unanimity jury instruction is reviewed for plain error).
Under the plain-error test, we examine the instructions to determine whether there
was (1) an error, (2) that was plain, and (3) that affected appellant’s substantial rights. State
v. Gunderson, 812 N.W.2d 15 6, 159 (Minn. App. 2012). If these elements are satisfied,
we will reverse if the error seriously affects the fairness, integrity, or public reputation of
judicial proceedings. State v. Kelley, 855 N.W.2d 269, 274 (Minn. 2014). Granting a new
trial ensures the fairness, integrity, or public reputation of judicial proceedings where the
evidence of the defendant’s guilt is not overwhelming, and where the plain error prevented
the jury from fully considering a defense theory that it might have believed. State v. Huber,
877 N.W.2d 519, 528 (Minn. 2016). Accordingly, under the plain-error standard, appellate
courts are to correct only “particularly egregious errors” in which a “miscarriage of justice
would otherwise result.” Id. (quotation omitted).
Even if the three plain-error elements were satisfied here, we are not persuaded that
any such error was so egregious as to cause a miscarriage of justice . At trial the state
presented strong evidence of appellant’s guilt through L.M.’s testimony, and so any error
in failing to provide a unanimity instruction did not prevent the jury from considering
appellant’s position that he did not engage in the charged conduct . Appellant had an
opportunity to rebut L.M.’s testimony. He testified on his own behalf at trial, and presented
testimony from several other defense witnesses. The district court’s jury instructions did
not affect appellant’s ability to present a complete defense. Instead, the jury clearly found
L.M. credible, and did not believe appellant’s t estimony to the contrary . In light of the

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substantial and consistent testimony of the victim at trial, reversal of appellant’s conviction
would not be merited, and granting a new trial under these circumstances would be futile
and a waste of judicial resources. Id. at 527. Because a new trial would not be necessary
to ensure the fairness or integrity of judicial proceedings, we affirm appellant’s conviction.
Affirmed.