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This opinion is nonprecedential except as provided by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
A20-1156

State of Minnesota,
Respondent,

vs.
Arturo Macarro Gutierrez,
Appellant.

Filed August 16, 2021
Affirmed in part, reversed in part, and remanded
Bratvold, Judge

Ramsey County District Court
File No. 62-CR-18-7965

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

John Choi, Ramsey County Attorney, Al exandra Meyer, Assistant Ramsey County
Attorney, St. Paul, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Jessica Merz Godes, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Hooten, Presiding Judge; Co nnolly, Judge; and
Bratvold, Judge.
NONPRECEDENTIAL OPINION
BRATVOLD, Judge
In this direct appeal from final ju dgments of conviction for two counts of
first-degree criminal sexual conduct entered afte r a jury trial, appellant argues that the
district court erred by (1) admitting relati onship evidence, (2) improperly framing
2
special-verdict interrogatories for the senten cing phase, (3) imposing a sentence that is a
greater-than-double upward-durational depart ure from the sentencing guidelines without
sufficient findings, and (4) entering convictio ns on lesser-included offenses. Because the
district court did not abuse its discretion by admitting rela tionship evidence, and because
the special-verdict interrogatories did not pr ejudice appellant, we affirm in part. But
because the district court imposed a greater-than-double departure without finding a severe
aggravating factor, and becaus e the convictions for lesser-included offenses must be
vacated, we reverse in part and remand for resentencing.
FACTS
The respondent State of Minnesota char ged appellant Arturo Macarro Gutierrez
with four counts of criminal sexual conduc t: first-degree criminal sexual conduct for the
sexual penetration of victim 1, Minn. Stat. § 609.342, subd. 1(a) (2018) (count one);
second-degree criminal sexual conduct for se xual contact with victim 1, Minn. Stat.
§ 609.343, subd. 1(a) (2018) (count two); fi rst-degree criminal sexual conduct for the
sexual penetration of victim 2 (count three) ; and second-degree cr iminal sexual conduct
for sexual contact with victim 2 (count four).
Victims 1 and 2 are twins, born in March 2014. For a while, they lived with their
mother at their maternal grandmother’s apartm ent. When they were about two and a half
years old, they moved with their mother into a nearby apartmen t with Gutierrez. In
September 2017, when the victims were three years old, victim 1 told her grandmother that
“somebody was loving up on her too much” and “made a few more statements” which
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concerned the grandmother “enough” to bring her granddaughters to Midwest Children’s
Resource Center1 (MCRC) “to get checked.”
On September 5, 2017, a nurse conducted a recorded interview with both victims.
Victim 1 stated that Gutierrez “burned [her]” w ith “the lighter.” But victim 1 denied ever
being “hurt” on her “front butt part or [her] back butt part.” When victim 2 was asked if
“somebody touch[ed] you on your front butt or back butt,” she re sponded that Gutierrez
touched her “in Grandma’s house” with “the knife.” But when the nurse tried to get more
details, victim 2 stated that “nothing” happened to her, and the nurse eventually ended the
interview. No criminal charges resulted from these interviews. Victims 1 and 2 continued
to live with their mother and Gutierrez, and the grandmother provided childcare.
In October 2018 when they were four years old, the grandmother left the victims in
her son’s care while she went to work. When the grandmother returned home, victim 1 told
her, “[Gutierrez] touched me on my bottom and he hurt me.” The grandmother learned that
the victims had been left solely in Gutierrez’s care; neither her son nor the victims’ mother
were present.
The grandmother did not question either ch ild, but noticed that victim 1’s “panties
were not right . . . . They were stiff, and . . . corroded.” A physician examined both victims
at a hospital a few days later. Victim 1 complained of “some diarrhea symptoms” and that
“her vaginal area hurt.” Both victims underwen t testing: victim 1’s vaginal and rectal

1 MCRC is a child-advocacy center and provides services to children based on concerns
about physical or sexual abuse.
4
swabs tested positive for g onorrhea, a sexually-transmitted infection, and victim 2’s
vaginal and throat swabs also tested positive for gonorrhea.
An MCRC nurse interviewed th e victims. Victim 1 stated that when Gutierrez “was
watching us . . . . his clothes was off . . . . he was dancing with his clothes off.” But
victim 1 did not describe any sexual contact. Victim 2 stated that “daddy pulled my sister’s
pants upstairs.” She explained that “he pulled her pants down and . . . . daddy covered her
up and she was on the floor.”
Police arrested Gutierrez and the district court issued a search warrant to permit an
examination of his genitals and hands. Gutierrez tested positive for gonorrhea on
November 2, 2018. Three days later, the state charged Gutierrez with counts one and two,
and in June 2019, the state amended its complaint to include counts three and four.
In July 2019, the state provided notice of its intent to offer Spreigl and relationship
evidence from, among others, A.M., Gutierrez’s 17-year-old daughter. 2 After a hearing,
the district court granted the state’s motion in a written order and memorandum. 3 The
district court reasoned that A.M.’s testim ony was admissible as relationship evidence,
determining that “the risk of unfair prejudice does not substantially outweigh the probative

2 See State v. Spreigl, 139 N.W.2d 167 (Minn. 1965) (providing for the admission of prior
bad acts by a defendant); Minn. Stat. § 634.20 (2018) (providing for the admission of
relationship evidence).

3 While state originally move d to admit testimony from thre e victims, it withdrew its
motion to admit evidence from one victim at the hearing. Along with granting the motion
to admit A.M.’s testimony, the district court also allowed testimony from a third victim as
Spreigl evidence, but the third victim did not testify at trial.
5
value of the evidence in question,” and stating that it would “address any proposed limiting
instructions in advance of the trial.”
During the jury trial, the state offe red testimony by A.M., the grandmother,
victim 1’s therapist, an interviewing nurse, and the medical director of MCRC. The district
court also received into evidence the victim s’ 2017 and 2018 interviews through video
recordings and transcripts, along with the gonorrhea tests of the two victims and Gutierrez.
The victims testified but did not describe the assaults to the jury. Gutierrez did not testify,
and introduced evidence that he declined treatment for gonorrhea when he was taken into
custody, and that he later tested negative for gonorrhea in February 2019—four months
after the assault. Gutierrez also called the victims’ mother, who testified that she was in a
sexual relationship with Gutierrez, and agreed that she had tested negative for gonorrhea
“just prior to [Gutierrez’s] arrest.”
The jury found Gutierrez guilty of all four counts. During the sentencing phase, the
jury responded to special-verdict interrogatories. After the trial concluded, the district court
ordered a presentence inves tigation (PSI) and psychosexua l evaluation, but Gutierrez
refused to participate in eith er. The PSI recommended an upward-durational departure of
360 months in prison for both counts one and three, to be served consecutively.
At the sentencing hearing, the district c ourt acknowledged that the grandmother’s
victim-impact statement asked for “the ma ximum sentence.” A.M. also offered a
victim-impact statement, stating that she “would like to see [Gutierrez] sentenced in a way
that reduces his chance of leaving jail while he is still alive.” The state urged the district
court to impose the PSI’s recommended sent ence of 720 months in prison. Gutierrez’s
6
attorney argued for a 360-month sentence, and asked “that the Court show some mercy to
this man.”
Before imposing a sentence, the district court addressed Gutierrez and stated that
“there is something irretrievabl y broken inside of you that ma de you perpetuate this evil
on someone else. . . . This was shockingly cruel what you did to” victim 1, victim 2, and
A.M. After noting the jury’s sp ecial-verdict findings, the district court concluded that “I
believe that a top-of-the-box sentence for ea ch count is appropriate . That still remains a
departure.”
The district court imposed a 280-month sentence for count one, first-degree criminal
sexual conduct against victim 1, and a cons ecutive 360-month senten ce for count three,
first-degree criminal sexual conduct against victim 2, “for a total of 640 months
incarcerated.” Neither counts two nor four, the second-deg ree criminal-sexual-conduct
charges, were adjudicated on the record, but Gutierrez’s warrant of commitment shows a
conviction for both counts.
Gutierrez appeals.
DECISION
I. The district court did not abuse its discretion by admitting relationship
evidence from Gutierrez’s daughter, A.M.

During trial, A.M. testified about three in stances of abuse: (1) when A.M. was six
years old and while she was sleeping, Gutierrez “pulled [A.M.’s] pants down and tried to”
penetrate her with his penis, (2) when A.M. was thirteen years old, Gutierrez “got on top
7
of [A.M.]” and “dry humped [her]” and “tried to kiss [her],” and (3) in late 2018, Gutierrez
pulled up A.M.’s dress, “[took] his penis out and tried to rape [her].”
The district court admitted A.M.’s test imony under Minn. Stat. § 634.20, the
relationship-evidence statute, which allows fo r the admission of “[e] vidence of domestic
conduct by the accused . . . against other family or household members.” “Domestic
conduct” includes criminal sexual conduct by a parent against a child. Minn. Stat. § 634.20;
Minn. Stat. § 518B.01, subd. 2(a)(3) (2018). The supreme court has “expressly adopt[ed]
Minn. Stat. § 634.20 as a rule of evidence for the admission of evidence of similar conduct
by the accused against the alleged victim of domestic abuse.” State v. McCoy, 682 N.W.2d
153, 161 (Minn. 2004).4
Relationship evidence, however, is not admissible if its “probative value is
substantially outweighed by the danger of unfair prejudice.” Minn. Stat. § 634.20. We
review the district court’s decision to admit relationship evidence for abuse of discretion.
State v. Lindsey, 755 N.W.2d 752, 755 (Minn. App. 2008), review denied (Minn. Oct. 29,
2008). Gutierrez has the burden of establishing both that the district court abused its
discretion and that the admission of the evidence prejudiced him. Id.
Gutierrez makes two arguments in support of his position. We discuss each in turn.

4 The supreme court later clarified “that ev idence of domestic co nduct by the accused
against family or household members other than the victim may be admitted pursuant to
Minn. Stat. § 634.20.” State v. Fraga , 864 N.W.2d 615, 627 (Minn. 2015) (emphasis
added).
8
A. The district court did not abuse its discretion when it determined that
the probative value of A.M.’s testimony was not substantially
outweighed by the danger of unfair prejudice.

Gutierrez argues that A.M.’s testimony “had very little probativ e value” and “had
great potential for unfair prejudice.” The st ate argues that “AM’s testimony was highly
probative evidence becau se it explained how [the victims’ mother] and [Gutierrez’s]
household functioned and the way [Gutierrez] preyed on young female family members,”
and that “A.M.’s testimony was not unfairly prejudicial.” We reject Gutierrez’s argument
for two reasons.
First, the district court did not abuse its discretion when it determined that A.M.’s
testimony was probative. “[E]vidence showin g how a defendant trea ts his family or
household members . . . sheds light on how the defendant interacts with those close to him,
which in turn suggests how the defendant may interact with the victim.” State v. Valentine,
787 N.W.2d 630, 637 (Minn. App. 2010), review denied (Minn. Nov. 16, 2010). “[T]he
probative value of relationship evidence in volving a family or household member is
high . . . .” State v. Ware, 856 N.W.2d 719, 729 (Minn. App. 2014).
In his brief to this court, Gutierrez emphasizes what the testimony did not prove: “it
did not illuminate the history of the relati onship between Gutierrez and [victims 1 and 2]
and it did not put the crime charged in the context of the relationship between them”; some
of A.M.’s testimony was “not probative on a ny element of the charged offenses”; and “it
did not provide the jury with the means to judge the cred ibility of [the victims] and
Gutierrez.” But Gutierrez’s argument misses th e point. A.M.’s testimony shed light on
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Gutierrez’s relationship with the victims, two young girls in his household, by showing his
conduct with his biological daughter when she was about the same age as the victims.
Second, we conclude that the district c ourt did not abuse its discretion when it
determined that the probative value of A.M.’s testimony was not substantially outweighed
by the danger of unfair prejudice. “[U]nfair pr ejudice is not merely damaging evidence,
even severely damaging evidence; rather, unfai r prejudice is evidence that persuades by
illegitimate means, giving one party an unfair advantage.” State v. Bell, 719 N.W.2d 635,
641 (Minn. 2006) (quotation omitted).
Gutierrez argues that “the district cour t did nothing meaningful at the time the
evidence was admitted to prohib it the jury from misusing th e ‘relationship evidence’ as
character or propensity eviden ce.” Based on the record, we disagree. Just before A.M.
testified about how Gutierrez abus ed her, the district court in structed the ju ry that her
testimony “is being offered for the limited pur pose of assisting you in whether the
defendant committed the acts with which he is charged in th is case.” The district court
instructed that Gutierrez “is not being tried and you are not to convict him based on any
previous evidence.”5

5 This is generally considered the Spreigl instruction. 10 Minnesota Practice ,
CRIMJIG 2.01 (2018). Gutierrez did not object before or after the instruction. This
instruction is similar to the relationship-evidence instruction, which reads:

This evidence is being offered for the limited purpose of
demonstrating the nature and extent of the re lationship between the
defendant and [the victim] in order to assist you in determining whether the
defendant committed those acts with wh ich the defendant is charged in the
complaint.
10
At the close of testimony, the district cour t stated that it was “not sure I gave the
correct instruction when they got [A.M.’s] testimony.” But the district court also noted
“there’s not that much of a difference.” The parties agreed that the district court should use
similar language in its final instructions. The district court instructed the jury before it
deliberated that A.M.’s testimony
is not to be used as proof of the character of the defendant or
that the defendant acted in conformity with that character.
The defendant is not being tried for and may not be
convicted of any offense other than the charged offenses. You
are not to convict the defendan t on the basis of any alleged
occurrences between the defendant and [A.M.]

On appeal, Gutierrez appears to assume that the jury disreg arded these instructions, but
“we presume that jurors follow the court’s instructions.” Zornes v. State, 880 N.W.2d 363,
373 (Minn. 2016). Thus, although the district court did not use the pattern instruction for
relationship evidence to limit the jury’s use of A.M.’s testimony, the district court
instructed the jury appropriately.
B. Any error was harmless.

Even if we assume that the district cour t abused its discretion by admitting A.M.’s
testimony, any error was harmless. “An erro r is harmless if there is no reasonable
possibility that it substantially influenced the jury’s decision.” State v. Taylor, 869 N.W.2d
1, 14 (Minn. 2015) (quotation omitted); see also State v. Post , 512 N.W.2d 99, 102 n.2

The defendant is not being tried for and may not be convicted of any
behavior other than the charged offense(s).

10 Minnesota Practice, CRIMJIG 2.07 (2018). Gutierrez does not argue that the district
court’s instruction was plainly erroneous, and we discern no error.
11
(Minn. 1994). To make this determination, we examine the record as a whole, and
“consider the manner in whic h the evidence was presented, whether the evidence was
highly persuasive, whether it was used in closing argument, and whether it was effectively
countered by the defense.” State v. Courtney, 696 N.W.2d 73, 80 (Minn. 2005); see also
State v. Bolte, 530 N.W.2d 191, 198-99 (Minn. 1995). For three reasons, we conclude that
any error was harmless.
First, while A.M.’s testimony was highly persuasive, it was not presented unfairly
because the district court gave limiting instruc tions before A.M. testified and before jury
deliberations. Second, the prosecuting attorn ey used A.M.’s tes timony appropriately
during closing arguments. While the prosecut ing attorney summarized A.M.’s testimony,
the attorney also reminded the jury of the district court’s cautionary instruction: “[A.M. is]
not a charged victim in this case, but you’re allowed to use her testimony to consider what
it was like in that household and to consider the acts against her as you determine the
defendant’s guilt in this case. ” The prosecuting attorney discussed A.M.’s testimony
briefly; two pages of the 18- page closing argument refer to A.M’s testimony. And the
prosecuting attorney did not discuss A.M.’s testimony at all during rebuttal.
Third, other evidence corro borated the state’s case. Gutierrez and the two minor
victims tested positive for gonorrhea. It was undisputed that the victims were in Gutierrez’s
care at the time of the assaults. The grandmot her testified about what the victims told her
after the assault, and the stat e also introduced the victims’ MCRC statements in their
entirety.
12
Gutierrez concedes that “the state ha d evidence apart from the ‘relationship
evidence’ from which th e jury could have found Gutie rrez guilty,” but he argues that
A.M.’s testimony silenced “any question the jurors may have had about whether Gutierrez
sexually abused [victims 1 and 2].” We are not convinced because the defense effectively
countered A.M.’s testimony by offering: (1) testimony by the victims’ mother, who stated
she did not contract gonorrhea, and (2) ev idence that Gutierrez tested negative for
gonorrhea after the assault even though he did not rece ive medical treatment. Gutierrez’s
attorney also countered A.M.’s testimony by arguing that she was “troubled beyond belief”
and impugning her credibility with the aid of the mother’s te stimony. We conclude that
A.M.’s testimony was necessa ry to counter Gutierrez’s ar guments and prove Gutierrez’s
guilt beyond a reasonable doubt.
For these reasons, we affirm the district court’s decision to admit A.M.’s testimony
as relationship evidence.
II. The district court erred during the se ntencing phase of Gutierrez’s trial.

Following a guilty verdict, a trial moves to the sentencing phase. See Minn. R. Crim.
P. 27.03. “For most felony offenses, the maximum sentence authoriz ed by a . . . guilty
verdict is the top of the presumptive se ntencing range provided in the Minnesota
Sentencing Guidelines’ grid,” State v. Rourke, 773 N.W.2d 913, 919 (Minn. 2009), which
is determined based on an offender’s crimin al-history score and th e convicted offense’s
severity. Minn. Sent. Guidelines 2 (2018).
But the district court may depart from th is presumptive range if “there exist
identifiable, substantial, and compelling circumstances to support a departure.” Id. 2.D.1.
13
Before imposing a sentence that departs from th e guidelines, a district court must (1) rely
on a factual finding of one or more additiona l circumstances that are not reflected in the
guilty verdict, and (2) explai n why those circumstances are a substantial and compelling
reason to depart from the guidelines. Rourke, 773 N.W.2d at 919.
Additional circumstances other than a defendant’s criminal history must be admitted
by the defendant or found beyond a reasonable doubt by a fact-finder, consistent with the
defendant’s Sixth Amendmen t right to jury trial. Id. (citing Blakely v. Washington ,
542 U.S. 296, 301, 303-04, 1 24 S. Ct. 2531, 2537 (2004)). During the sentencing phase,
the jury’s role is to find or reject “a factual circumstan ce which the State alleges would
provide the district court a substantial and compelling reason . . . to depart from the
presumptive guideline sentence,” often in the form of special-verdict interrogatories. Id. at
923. The presence of a single aggravating fa ctor is sufficient to uphold an upward
departure. See State v. O’Brien , 369 N.W.2d 525, 527 (Minn. 1985). An appellant may
challenge the validity of a sentence for the first time on appeal. See State v. Maurstad ,
733 N.W.2d 141, 146-47 (Minn. 2007) (reviewing appellant’s sentencing challenge, even
though that argument was not raised at sentencing); Minn. R. Crim. P. 27.03, subd. 9.
Gutierrez makes three challenges to his sent ence. He argues that (1) the district
court’s special-verdict interrogatories during the sentencing phase of trial were improper
and warrant reversal, (2) the district court erred by imposing a greater-than-double upward-
durational departure from the sentencing guidelines without sufficient findings, and (3) the
14
district court erroneously entered convictions for counts two and four. We address each of
Gutierrez’s arguments in turn.
A. The special-verdict interrogatories we re plainly erroneous, but the error
did not affect Gutierrez’s substantial rights.

In response to special-verdict interrogatories, the jury found that Gutierrez “act[ed]
with particular cruelty by sexually assaulting [v ictim 1] in the presence of [victim 2],”
which only applies to counts one and two. The jury also fo und that both victims were
“particularly vulnerable due to [their] age,” and this finding applies to count three.6
Gutierrez argues that his sentence for coun t three, first-degree criminal sexual
conduct against victim 2, must be reversed because (1) “the jury’s ‘particular cruelty’
special-verdict finding does not apply to co unt III,” and (2) “the jury’s special-verdict
findings are inadequate to support the aggravated sentence.”
Because Gutierrez did not object to the special-verdict interrogatory, we review for
plain error.7 State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998). Under plain-error review,

6 The jury’s special verdict also determined that Gutierrez did not “act with particular
cruelty by transmitting a sexually transmitted disease” to either victim.

7 Gutierrez argues that we should consider this issue de novo, relying on State v. Grampre,
766 N.W.2d 347, 350 (Minn. App. 2009) (“[W ]hether a particular reason for an upward
departure is permissible is a questi on of law, which is subject to a de novo standard of
review.”) We disagree. Gutierrez’s brief to this court concedes that particular cruelty is a
permissible reason for the district court’s de parture, but argues that the interrogatories
submitted to the jury were improper. Gutierrez did not object to the interrogatories. “Failure
to request specific jury instructions or to obj ect to instructions given generally results in
forfeiture of the issue on appeal. But we have discretion to consider a district court’s failure
to give a jury instruction if the failure constitutes plain error affecting substantial rights.”
State v. Goodloe , 718 N.W.2d 413, 422 (Minn. 2006 ) (citations omitted). We therefore
apply plain-error review.
15
“there must be (1) error; (2) that is plai n; and (3) the error af fects [the appellant’s]
substantial rights. If these three prongs are me t, the appellate court then assesses whether
it should address the error to ensure fair ness and the integrity of the judicial
proceedings.” Id. (citing Johnson v. United States, 520 U.S. 461, 468-69, 117 S. Ct. 1544,
1549-50 (1997)).
We consider the state’s responses to Gutierr ez’s argument in three steps. First, the
state concedes that “the only aggravatin g factor the jury found that relates to
Count III . . . is that [victim 2] was especial ly vulnerable because of her age.” The state
argues that “[t]here is no indication that [the district court] applied the special-verdict
findings incorrectly as to e ither count.” Based on the sent encing-hearing transcript, we
agree. Before imposing Gutierrez’s sentence, the district court stated that “the jury found
factors relevant to an upward departure. And I want to make sure I acknowledge both
victims and the particular crue lty that they suffered at the hands of this defendant.” The
district court then imposed a sentence for c ount one relating to victim 1, followed by a
sentence for count three relating to victim 2. Th ere is no indication th at the district court
relied on the jury’s finding that Gutierrez “assa ult[ed] [victim 1] in the presence of
[victim 2]” when it imposed an upward depart ure for count three. We therefore reject
Gutierrez’s first argument and turn to the special-verdict finding that victim 2 was
particularly vulnerable.
Second, the state concedes that the district court plainly erred in the form of its
sentencing interrogatories. We agree. “An error is plain if it contravenes case law, a rule,
or a standard of conduct.” State v. Hayes, 831 N.W.2d 546, 555 (Minn. 2013) (quotation
16
omitted). Here, the district court plainly erre d in its special-verdict interrogatories by
asking the jury to find a reason for departure—particular vulnerability—rather than asking
the jury to find facts that could guide the district court’s decision on whether to depart from
the guidelines. In Rourke, the supreme court distinguishe d between “additional facts that
support the departure” and “a substantial a nd compelling reason to impose a sentence
outside the range on the [sentencing guidelines] grid.” 773 N.W.2d at 919-20. 8 The
supreme court concluded that the jury should not be asked to find a reason for a departure,
but instead should be asked to find facts which could, in the district court’s discretion,
support the district court’s determination th at substantial and compelling circumstances
warrant a departure. Id. at 923.
Third, despite this error in the verdict form, the state argues that the facts of the case
“overwhelmingly establish that [the victims] were particularly vulnerable,” and that the
jury would have come to the same conclusion “had it been presented with questions of fact
pertaining more specifically to each twin’s vulnerability.” We agree. An error affects a
defendant’s rights if there is a “reasonable lik elihood that the giving of the instruction in
question would have had a significant effect on the verdict of the jury.” Griller,
583 N.W.2d at 741 (quotation omitted).
The victims’ ages—four years old—was well established by the record, and, as the
state contends, they were “scared to be in the same room with [Gutierrez].” Gutierrez did

8 “[A]dditional facts” are “those facts that were not reflected in the jury verdict or admitted
by [the defendant] but that would support a s ubstantial and compelling reason to depart
from the presumptive guideline sentence.” Id. at 919 n.5.
17
not dispute the young age of the victims or th at they were in his sole care during the
assaults. And, as the state argues, they were “so young they were unable to report the abuse
sufficiently for them to receive help.” We are satisfied that the jury would have found
sufficient facts to support the district court’s determination that a departure was warranted
for count three based on victim 2’s particul ar vulnerability had th e jury been properly
instructed.
Because the district court did not rely on particular cruelty—the assault of victim 1
in the presence of victim 2— to impose an upward departure for count three, and because
relevant factual interrogatories on the verdic t form would have supported the district
court’s decision to impose an upward depa rture for count three based on particular
vulnerability, we conclude that the plain error in the special-verdict interrogatories did not
affect Gutierrez’s substantial rights.
B. The district court abused its discretion by imposing a
greater-than-double departure for count three without finding a severe
aggravating factor.

Gutierrez argues that the 360-month sent ence imposed on count three was a
greater-than-double departure and that the dist rict court did not determine that a severe
aggravating circumstance justified the senten ce. The state counters that the “sentence
imposed” was not a greater-tha n-double departure, arguing th at “[a] greater-than-double
upward departure would have been 704 months or, 360 months on count I (top of the box
18
presumptive sentence with 4 criminal histor y points) and 344 months on count three
(double top of the box presumptive sentence with artificial 0 criminal history score).”9
The supreme court has held that “generally in a case in which an upward departure
in sentence length is justified, the upper limit will be double th e presumptive sentence
length.” State v. Evans , 311 N.W.2d 481, 483 (Minn. 19 81). “[D]ouble the presumptive
sentence length” means “twice the upper end of the presumptive sentencing range.” State
v. Barthman , 938 N.W.2d 257, 269 (Minn. 2 020). A district court may impose a
greater-than-double durational departure only if it finds a “severe aggravating factor.” State
v. Stanke, 764 N.W.2d 824, 828 (Minn. 2009). Appellate courts “review decisions to depart
from the sentencing guidelines only for an abuse of discretion.” Barthman, 938 N.W.2d at
269 (quotation omitted). “A district court abuses its discretion if its reasons for departure
are inadequate or improper.” Id.
We agree with Gutierrez that the distri ct court imposed a greater-than-double
departure for count three. The district court imposed a “permissive consecutive sentence”
for count three, and before imposing the sentence for count three, the district court stated
it was “keeping [Gutierrez’s] felony point sc ore and sentencing him to 360 months.” The
guidelines provide that “[i]f th e offender is being sentenced for multiple current felony
convictions for crimes [including first-degree criminal sexual conduct] the convictions may
be sentenced consecutively to each other.” Minn. Sent. Guidelines 2.F.2.a.(1)(ii). But if the

9 We note that, while it does not affect the state’s conclusion, a top-of-the-box presumptive
sentence with four criminal-h istory points is 280 months , not 360 months. Minn. Sent.
Guidelines 4.B. (2018). Thus, under the state’s reasoning, a greater-than-double departure
would be 624 months, and Gutierrez was sentenced to a total of 620 months.
19
district court sentences consecutively, then “the court must use a Criminal History Score
of 0 . . . to determine the presumptive dura tion. A consecutive sentence at any other
duration is a departure.” Id. 2.F.2.b. With a criminal-history score of 0, the upper end of
the guidelines range for count three was 172 months. Minn. Sent. Guidelines 4.B. Here,
the district court imposed a 360-month sentence for count three, which is more than twice
the upper end of the presumptive range. Gutierrez’s sentence for count three is therefore a
greater-than-double departure.
The district court, however, did not find a “severe” aggravating factor to support the
greater-than-double departure. As discussed above, the district court found a single
aggravating factor for count three and did not consider whet her it was “severe.” Thus, its
reasoning was inadequate and improper. See Stanke, 764 N.W.2d at 828. We must
therefore reverse and remand for resentencing consistent with this opinion.
C. The convictions for counts two and four must be vacated.

Gutierrez argues that his convictions fo r counts two and four, second-degree
criminal sexual conduct, “must be vacate d because they are included offenses” of
counts one and three, first-degree criminal sexual conduct. The state agrees, as do we.
Minnesota law prohibits multiple convic tions for lesser-included offenses, Minn.
Stat. § 609.04, subd. 1 (2018), and “[s]econd . . . degree criminal sexual conduct [is a]
lesser-included offense[] of first- degree criminal sexual conduct.” State v. Kobow ,
466 N.W.2d 747, 752 (Minn. App. 1991), review denied (Minn. Apr. 18, 1991). Thus, the
convictions for counts two and four are lesser-included offenses of counts one and three.
20
At the sentencing hearing, the district court did not adjudicate or impose a sentence
on either count two or four, and the state’s brief submits that “the entry of the convictions
was not intentional and occurred in error.” “Cle rical mistakes in a judgment, order, or in
the record arising from oversight or omission may be corrected by the court at any time, or
after notice if ordered by the court.” Minn. R. Crim. P. 27.03, subd. 10. Therefore, we
reverse and remand for the district court to vacate the convictions for counts two and four.
Affirmed in part, reversed in part, and remanded.