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This opinion will be unpublished and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
A20-0102

State of Minnesota,
Respondent,

vs.

Irving Augusto Borjas-Vazquez,
Appellant.

Filed December 28, 2020
Affirmed
Worke, Judge

Hennepin County District Court
File No. 27-CR-18-29643

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

Michael O. Freeman, Hennepin County Attorn ey, Sarah J. Vokes, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Rory P. Durkin, Giancola-Durkin, P.A., Anoka, Minnesota (for appellant)

Considered and decided by Reilly, Presiding Judge; Wo rke, Judge; and Bratvold,
Judge.
U N P U B L I S H E D O P I N I O N
WORKE, Judge
Appellant challenges his conviction for fi rst-degree criminal sexual conduct,
arguing that the district court erred by not releasing the backup audio recording of his jury
trial and abused its discretion by denying a continuance of his sentencing. We affirm.

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FACTS
Appellant Irving Augusto Borjas-Vazquez (AKA Cesar Carlos Borjas-Lopez) grew
up in Mexico but has lived in the United States for approximately 15 years. In December
2018, he was charged with two counts of first-degree criminal sexual conduct for repeated
acts of sexual penetration committed against his 12-year-old niece. Borjas-Vazquez was
represented at his jury trial by bilingual Sp anish-speaking counsel, and the district court
appointed two interpreters. On July 17, 2019, a jury f ound Borjas-Vazquez guilty as
charged, and his sentencing was scheduled for September 6, 2019.
On or about July 31, 2019, Borjas-Vaz quez retained new counsel and moved for a
new trial, claiming that the interpretation at his trial was incorrect. In an affidavit, Borjas-
Vazquez’s counsel asserted that Borjas-Vazquez’s wife, who testified at trial, “described
the interpreters as having confusion among themselves,” which led to her not
understanding questions and doubting her answers. Borjas-Vazquez also claimed that “the
interpreters were not using the proper word[s] and he could not understand much of what
went on.” Borjas-Vazquez claimed that he expressed his concerns to his trial attorney, but
nothing was done. Borjas-Vazquez requested a continuance of his sentencing to review
the transcript. The district court grante d his request and continued sentencing to
November 1, 2019.
At sentencing, Borjas-Vazquez ’s attorney stated that he received the transcript in
early October and read through it. Because Borjas-Vasquez remained concerned regarding
the interpretation at trial, his attorney requested another continuance and an order from the
district court to obtain a “copy of the audio fr om the entire trial,” so he could listen to it

3
with an interpreter “to flesh out whether or not we have problems with the interpretation.”
The prosecutor, who prosecuted the case at trial, replied that during trial the interpreters
made sure that the proceedings “were translated as best as possible.” The district court
stated that, based on the rules of court access, it did not have authority to release the backup
audio recording of the trial. It then described its understanding of what occurred at trial:
[D]efense counsel were both flue nt in Spanish and English;
[and] the court provided two interpreters for the entire trial who
interpreted for [Borjas-Vazqu ez] and for each witness who
chose to testify in Spanish. Those two interpreters, who, of
course, I was paying most attention to while witnesses were
testifying in Spanish, frequently helped each other, checked
with each other, consulted when they felt they needed to to
make sure they were providing consistent interpretation. For
example, there was a lot of reference to the salon, S-A-L-O-N,
and calling that the living room, I think, because that’s a word
in Spanish that can be interp reted in multiple ways so the
interpreters were giving consis tent interpretation of phrases
that could be put into English in different ways.
None of the witnesses, in cluding [Borjas-Vazquez] and
his wife . . . ever said they were confused by the interpretation
during their testimony. And . . . no one ever raised it on the
record. I believe it’s accurate that I did not do my due diligence
at the beginning of the trial itse lf to make sure that [Borjas-
Vazquez] could understand each of the interpreters; however,
I would expect that that would have been stated immediately if
there was ever an interpreter wh o he could not understand. I
expect the attorneys would have told me if they could not
understand the interpreters, and it would have been obvious to
us while the witnesses were testifying in Spanish. Again, there
was no confusion about interpretation during the Spanish-
speaking witnesses, including [Borjas-Vazquez]’s wife and
[Borjas-Vazquez] himself.

The district court denied Borjas-Vazquez’s request for a continuance and sentenced him to
144 months in prison. This appeal followed.

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D E C I S I O N
Backup audio recording
Borjas-Vazquez first argues that the distri ct court erred by conc luding that he was
not allowed access to the backup audio recording of his jury trial to identify interpretation
errors. In denying Borjas-Vazquez’s request for access to the backup audio recording, the
district court relied on Minn. R. Pub. Access to Recs. of Jud. Branch 4, subd. 3. The
interpretation of court rules presents a question of law re viewed de novo. Lennartson v.
Anoka-Hennepin Indep. Sch. Dist. No. 11, 662 N.W.2d 125, 129 (Minn. 2003). This court
interprets court rules in accordance with the rules of grammar and gives words and phrases
their common and approved usage. State v. Dahlin, 753 N.W.2d 300, 306 (Minn. 2008).
When the language of a rule is plain and un ambiguous, an appellate court must interpret
the rule in accordance with its plain language. See id. at 305.
Based on its plain and unambiguous languag e, we conclude that the district court
correctly applied the rule. Rule 4 allows for only the release of a transcript of a hearing,
not the recording itself. See Minn. R. Pub. Access to Recs. of Jud. Branch 4, subd. 3(a),
(d) (stating that recordings of proceedings in district court are intended to assist in the
preparation of a transcript; “[t]he transcript, and not the recording, is the official record of
the proceedings” and “the contents of the recording shall be disseminated by transcript
only”). Thus, distribution of the contents may be done only by transcript.
The rule also governs pl ayback of a recording. Id. at subd. 3(c). It is allowed in
only three situations: “(1) during the proceeding . . . at the direction of the court; (2) by
authorized operators of the recording equipm ent . . . official court reporter or other

5
authorized reporting service employee for the purpose of creating a transcript . . . ; and
(3) at the direction of the court for the use of the court.” Id. None of these situations cover
Borjas-Vazquez’s request for playback to detect possible irregularities in translation.
Borjas-Vazquez argues that because “[t]he transcript was carefully reviewed for
irregularities and possible translation issues” and “none” were found, the only option is to
review the audio recording for “errors and misi nterpretation.” He claims that in denying
his request for the backup audio recording, the district court prevented him from obtaining
a record of sufficient completeness to permit proper consideration of his claims. But that
is a misrepresentation. His issue on appeal is that the district court should have allowed
access to the backup audio recording to allow him to find possible irregularities in order to
raise a claim; he does not raise an issue on appeal that required the audio recording to assist
in consideration of a claim. Thus, the recording wo uld not assist this court in properly
considering a claim; rather, his counsel would use it to find a potential claim to raise.
Further, while he argues that the record ing will provide a sufficiently complete
record for the review of his claims, the record on appeal consists of “[t]he documents filed
in the [district] court, the exhibits, and the transcript of the proceedings, if any.” Minn. R.
Civ. App. P. 110.01. Thus, the transcript alone would provide a sufficiently complete
record for review.
Moreover, Borjas-Vazquez fa ils to provide any framework for potential claims that
the audio recording would reveal. In an affi davit, his attorney a sserted that Borjas-
Vazquez’s wife stated that the interpreta tions were inadequate, and she doubted the
accuracy of her answers. But if Borjas-V azquez’s wife was confused, she and Borjas-

6
Vazquez’s attorney could have reviewed her testimony in the transcript and found specific
areas of confusion. Yet he provides no specific example.
Further, in his affidavit, Borjas-Vazquez’ s attorney asserted that Borjas-Vazquez
has only a “remedial understanding” of English and was “confused and dismayed” by what
happened at his trial, especially during his testimony, when the interpreters communicated
in a confusing manner. But, again, Borjas-V azquez fails to point to anything that caused
confusion. And during his presentence investigation (PSI), he did not state that there was
confusion in the interpretation during his testim ony. Instead, he stated, “The jury heard
my version. They heard what I had to say and they already found me guilty and I said what
I had to say.” Thus, he admitted that he told the jury his version, but they did not believe
him; he did not indicate that he was found guilty because the interp reters confused him
while he was testifying.
Finally, Borjas-Vazquez claims that possible errors in translation denied him a fair
trial. But he has the “burden of proving on appeal that the interpretation was inadequate.”
State v. Montalvo , 324 N.W.2d 650, 652 (Minn. 1982); see also State v. Mitjans , 408
N.W.2d 824, 832 (Minn. 1987) (stating that in addressing a claim that errors in translation
denied a defendant a fair tria l, this court considers whethe r the translation was “on the
whole adequate and accurate”).
Borjas-Vazquez retained new counsel following his jury trial; thus, his new attorney
was not present at trial. But the prosecutor was present at trial. She stated that during trial
there were “numerous times” when the interpreters had conversations with Borjas-Vazquez
in Spanish. She stated that the transcript would show “the level of detail [Borjas-

7
Vazquez]’s trial counsel had regarding interpretation during the trial,” and that exceptional
care was taken to ensure that “the proceedi ngs were communicated to [Borjas-Vazquez]
and he understood them.”
The district court stated that Borjas-Vazquez’s trial co unsel was fluent in Spanish
and English, there were two interpreters fo r the entire trial who fre quently helped each
other, and the interpreters consulted to ensure they provided consistent interpretation. The
district court further stated that none of the witnesses ever stated that they were confused,
and it expected that any concerns would have been addressed on the record. Based on this
record,1 the prosecutor and district court experience d a jury trial that had translations that
were on the whole adequate and accurate, a nd Borjas-Vazquez failed to show that the
translation was not adequate and accurate. Accordingly, the district court properly denied
Borjas-Vazquez’s request for access to the backup audio recording of his jury trial.
Continuance
Borjas-Vazquez also argues that the district court abused its discretion by denying
his request for a second continuance of his sentencing. This court reviews a district court’s
denial of a motion for a continuance for an abuse of discretion. State v. Rainer, 411 N.W.2d
490, 495 (Minn. 1987). This court considers th e circumstances that existed in the district
court when it made its ruling. State v. Turnipseed, 297 N.W.2d 308, 311 (Minn. 1980).

1 We rely on the prosecutor’s and the district court’s statem ents regarding what occurred
at trial because we have no transcript of the jury trial to review. See Minn. R. Civ. App. P.
110.02, subd. 1 (stating it is appellant’s duty to provide transcript).

8
Borjas-Vazquez argues that the district c ourt should have granted him a continuance
because his attorney “had just received and gone through the over 900 pages of transcript,”
and it is difficult to arrange a visit to the jail with counsel and an interpreter.
Here, the jury found Borj as-Vazquez guilty on July 17, 2019, and his sentencing
was scheduled for September 6, 2019. In late July, Borjas-Vazquez retained new counsel
and moved for a continuance in order to review the trial transcript. The district court
granted a continuance and rescheduled sent encing to November 1, 2019. At the
rescheduled hearing, Borjas-Vazquez’s counse l stated that he received a copy of the
transcript “just after the first week of October.” The transcript was “carefully reviewed for
irregularities and possible translation issues.” After finding no issues with the transcript,
Borjas-Vazquez requested a continuance to attempt to obtain the backup audio recording
of his jury trial. Because the district cour t properly denied Borjas -Vazquez’s request for
access to the backup audio reco rding, another continuance wa s unnecessary in order to
obtain access to the recording.
Finally, although Borjas-Vazquez asserts th at the state will not be prejudiced by a
continuance, when the district court denied the request, it stated that “it’s been months now
and to orally request it today for the first time is not timely given that it’s the second time
we’re set for sentencing.” Thus, the district court noted that it was untimely and that could
prejudice the state when there is an interest in the finality of cases. The district court did
not abuse its discretion by denying Borjas-Vazquez’s request for a continuance.
Affirmed.