State of Minnesota, Respondent, vs. Jorge Alberto Martinez Reyes, Appellant.

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. l(c).
STATE OF MINNESOTA
IN COURT OF APPEALS
A20-1198
State of Minnesota,
Respondent,
vs.
Jorge Alberto Martinez Reyes,
Appellant.
Filed August 9, 2021
Affirmed
Johnson, Judge
Scott County District Court
File No. 70-CR-19-11155
Keith Ellison, Attorney General, St. Paul, Minnesota; and
Ronald Hocevar, Scott County Attorney, Todd P. Zettler, Assistant County Attorney,
Shakopee, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Jennifer Workman Jesness,
Assistant Public Defende r, St. Paul, Minnesota (for appellant)
Considered and decided by Johnson, Presiding Judge; W orke, Judge; and Ga'itas,
Judge.
NONPRECEDENTIAL OPINION
JOHNSON, Judge
A Scott County jury found Jorge Alberto Martinez Reyes guilty of first-degree
criminal sexual conduct based on evidence that he sexually abused his girlfriend's daughter
on multiple occasions. We conclude that the district court did not err by admi tting into
evidence an audio-recording of a police detective's interview of the victim, by not inquiring
during the jury's deliberations whether all jurors remained qualified, or by stating in the
warrant of commitment that Martinez Reyes was convicted of two charges for which the
district court did not impose a sentence. We also conclude that the evidence is sufficient
to support the jury's verdicts. Therefore, we affinn.
FACTS
Between 2016 and 2019, Martinez Reyes lived with his girlfriend, her pre-teen
daughter, L.A.-D., and his girlfriend's two younger sons. In early 2019, L.A.-D. told her
mother that Martinez Reyes had sexually assaulted her on multiple occasions. L.A.-D.'s
mother told Martinez Reyes to move out of the house, and he did so. In June 2019, L.A.­
D. 's mother contacted law enforcement. L.A.-D. was interviewed twice: initially by the
police officer who took the initial report and later by a police detective and a child
protection worker. Both interviews were recorded. L.A.-D. told the police that, on
multiple occasions between 2016 and early 2019, when her mother was at work, Martinez
Reyes touched her vagina and inserted his penis into her vagina. She stated that she did
not immediately tell her mother because Martinez Reyes had threatened to harm her family
if she did so.
In July 2019, the state charged Martinez Reyes with four counts of first-degree
criminal sexual conduct, in violation of Minn. Stat. § 609.342, subds. l(a), (g), (h)(i),
(h)(iii) (2018). The case was tried over two days in January 2020. The state called five
witnesses: L.A.-D., L.A.-D.'s mother, the elder of L.A.-D.'s two younger brothers, the
police officer who conducted the first interview of L.A.-D., and the police detective who
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conducted the second interview ofL.A.-D. L.A.-D.'s brother testified that Martinez Reyes
sometimes acted strangely with L.A.-D. by taking her into a bedroom and closing the door.
L.A.-D.'s brother also testified that Martinez Reyes sometimes entered the bedroom that
he shared with L.A.-D. during the middle of the night.
Martinez Reyes testified and denied engaging in any sexual conduct with L.A.-D.
He testified that L.A.-D. fabricated her story of sexual abuse to deflect her mother's
attention away from her relationship with an adult man, about whom Martinez Reyes may
have warned L.A.-D. 's mother. Martinez Reyes did not present any other evidence.
The jury found Martinez Reyes guilty on all four counts. The district court imposed
consecutive sentences of 144 months of imprisonment each on counts 1 and 2 but did not
impose sentences on counts 3 and 4. Martinez Reyes appeals.
DECISION
I. Admissibility of Interview
Martinez Reyes first argues that the district court erred by admitting into evidence
an audio-recording of the second police interview ofL.A.-D.
Before trial, the state filed a motion in limine in which it sought a ruling that it could
introduce audio-recordings of both police interviews ofL.A.-D. The state argued that the
interviews were admissible under either rule 80l(d)(l)(B) or rule 807 of the rules of
evidence. The district court considered the motion on the first day of trial. Martinez
Reyes's attorney opposed the state's motion on the grounds that the interviews were not
trustworthy, as required for admission under rule 807, and were cumulative for purposes
of rule 80l( d)(l)(B) because L.A.-D. "testified consistently with that statement."
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The district court reviewed transcripts of the two interviews during a recess. Before
the jury returned to the courtroom, the district court ruled that the first interview was
inadmissible because it was not consistent with L.A.-D. 's trial testimony and would not be
helpful to the jury and because it was not sufficiently trustworthy. With respect to the
second interview, the district court discussed with counsel certain logistical issues, such as
how the prosecutor intended to play the audio-recording and prepare the transcripts and
whether it was necessary for a Spanish-language interpreter to translate the audio­
recording. The parties agree that the district court's comments reflect an implicit ruling
that the audio-recording would be admitted. Later that day, the prosecutor offered the
audio-recording of the second interview into evidence during the testimony of the police
detective who conducted the interview. In response, Martinez Reyes' s attorney stated, "No
objection." The district court admitted the audio-recording into evidence, and it was played
for the jury.
On appeal, Martinez Reyes argues that the audio-recording of the second interview
is inadmissible under both rule 80l(d)(l)(B) and rule 807. Hearsay evidence is defined as
an out-of-court statement that is offered to prove the truth of the matter asserted in the
statement. Minn. R. Evid. 801(c); State v. Litzau, 650 N.W.2d 177, 182-83 (Minn. 2002).
Hearsay evidence is inadmissible as substantive evidence unless it is within an exception
to the hearsay rule. Minn. R. Evid. 802-807; State v. Greenleaf, 591 N.W.2d 488, 502
(Minn. 1999). But some out-of-court statements are not considered hearsay. Minn. R.
Evid. 801(d).
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The state argues that the district court properly admitted the second interview
pursuant to rule 80l(d)(l)(B). That rule provides, "A statement is not hearsay if ... [t]he
declarant testifies at the trial or hearing and is subject to cross-examination concerning the
statement, and the statement is ... consistent with the declarant' s testimony and helpful to
the trier of fact in evaluating the declarant's credibility as a witness .... " Minn. R. Evid.
80l(d)(l)(B). An out-of-court statement may be admitted as non-hearsay pursuant to rule
80l(d)(l)(B) if the district court makes a threshold determination that the witness's
credibility has been challenged, State v. Fields, 679 N.W.2d 341, 348 (Minn. 2004); State
v. Bakken, 604 N.W.2d 106, 109 (Minn. App. 2000), review denied (Minn. Feb. 24, 2000),
and that the statement is consistent with the witness's trial testimony, State v. Nunn, 561
N.W.2d 90 2, 908-09 (Minn. 1997); Bakken, 604 N.W.2d at 109.
Martinez Reyes contends that the second interview should not have been admitted
on the grounds that he did not challenge L.A.-D. 's credibility at trial and that the interview
is not consistent with L.A. -D.' s trial testimony. In response, the state initially contends
that the plain-error rule applies because Martinez Reyes did not preserve the two issues he
raises on appeal. We agree. Martinez Reyes did not assert an objection in the district court
that corresponds to either of the grounds he argues on appeal. See State v. Rodriguez, 505
N.W.2d 373, 376 (Minn. App. 1993), review denied (Minn. Oct. 19, 1993). In fact, his
argument to the district court-that the audio-recording would be cumulative because
L.A. -D.' s trial testimony was consistent with her interview- is directly contrary to his
appellate argument that the interview and the trial testimony are inconsistent. Accordingly,
we review only for plain error. See Minn. R. Crim. P. 31.02 . Under the plain-error test,
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an appellant is entitled to relief on an issue to which no objection was made at trial only if
(1) there is an error, (2) the error is plain, and (3) the error affects the appellant's substantial
rights. State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998). If these three requirements
are satisfied, the appellant also must satisfy a fourth requirement, that the error "seriously
affects the fairness and integrity of the judicial proceedings." State v. Little, 851 N.W.2d
878, 884 (Minn. 2014).
With respect to the first part of Martinez Reyes' s argument, it is significant that
L.A.-D. was cross-examined by Martinez Reyes's trial attorney, who challenged L.A.-D. 's
testimony in various ways. For example, Martinez Reyes's attorney asked L.A.-D. about
the distance between the bedrooms and the living room and why she did not more often
scream to get her siblings' attention when they "were just one room apart." Martinez
Reyes's attorney asked why none of her siblings ever said anything about "weird noises
coming from the room." Martinez Reyes's attorney asked L.A.-D. about the passage of
time between the sexual abuse and when L.A.-D. told her mother about it. All of these
questions and others were designed to cast doubt on L.A. -D. 's testimony. That strategy is
confinned by Martinez Reyes' s closing argument, in which his attorney stated: "Remember
that .this entire case begins and ends with [L.A.-D.]. All of the testimony that you heard,
statements summarized, and audio played were people reciting, remembering, and
replaying something originally told by [L.A.-D.]." Martinez Reyes's attorney also told the
jury that "no one else ever saw, suspected, or knew anything about this but for [L.A.-D.]."
Thus, L.A.-D.'s credibility was sufficiently challenged to satisfy rule 80l(d)(l)(B). See
State v. Manley, 664 N.W.2d 275,288 (Minn. 2003) (reasoning that credibility of two child
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witnesses was challenged by cross-examination questions asking whether children were
confused or had difficulty recalling events).
With respect to the second part of Martinez Reyes's argument, the record shows that
L.A.-D.'s interview was consistent with her trial testimony. L.A.-D.'s interview was
somewhat broader than her trial testimony. For example, L.A.-D.'s interview includes
details about how Martinez Reyes undressed her and touched her and a statement that
Martinez Reyes threatened to kill L.A.-D.'s mother and brother if L.A.-D. told anyone
about the abuse. Nonetheless, "trial testimony and the prior statement need not be
identical" but, rather, need only be "reasonably consistent." State v. Zulu, 706 N.W.2d
919, 924 (Minn. App. 2005). Admission of a prior statement under rule 80l(d)(l)(B) is
inappropriate only if there are "inconsistencies [that] directly affect the elements of the
criminal charge." Bakken, 604 N.W.2d at 110. In this case, L.A.-D. 's interview was
reasonably consistent with her trial testimony. Martinez Reyes purports to identify several
inconsistencies between the interview and L.A.-D.'s trial testimony, but most are not
inconsistencies but, rather, specific factual issues that were included in the second
interview but simply not mentioned at trial. Thus, L.A.-D.'s interview was reasonably
consistent with her trial testimony for purposes of rule 801(d)(l)(B).
In sum, the audio-recording of the second police interview ofL.A . .:.o. is admissible
as non-hearsay evidence under rule 80l(d)(l)(B). In light of that determination, it is
unnecessary to consider Martinez Reyes's argument that the interview is inadmissible
under rule 807. Therefore, the district court did not plainly err by admitting the audio­
recording of the second police interview ofL.A.-D.
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II. Jurors' Qualifications
Martinez Reyes also argues that the district court erred by not conducting an
investigation into the qualifications of one or more jurors after receiving a note from the
jury foreperson.
On the second day of the jury's deliberations, the district court received a letter from
the foreperson that stated: "We have a juror ... who feels uncomfortable about comments
made to her by another juror ... yesterday. We are not sure how to proceed with this
situation. We are still carrying on with deliberation." The district court consulted with
counsel and provided the jury with the following written response: "The court has received
your note. Try to keep the conversation focused on the evidence and allow all jurors to
voice their positions to the group. " Later that day, the jury returned its verdicts.
Martinez Reyes contends that the district court erred because it did not inquire into
whether either of the jurors at issue remained able to serve as a juror. He concedes that the
plain-error test applies on appeal because his trial attorney did not ask the district comi to
conduct an investigation.
Martinez Reyes relies on a rule providing that jurors must be able to "try the case
impartially and without prejudice to the substantial rights " of either party. Minn. R. Crim.
P. 26.02, subd. 5(1). He asserts that a district court has a duty to ensure that a juror who
was deemed qualified at the commencement of trial remains qualified. In support of that
principle, he cites State v. Varner, 643 N.W.2d 298 (Minn. 2002), in which a juror was
overheard making a potentially racially prejudicial comment to other jurors during a break
in the trial. Id. at 302. The district court questioned the juror and dismissed him but did
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not question other jurors, as requested by the defendant, to determine whether the comment
had a prejudicial effect on them. Id. at 302-03. The district court also denied the
defendant's request for a mistrial. Id. at 302. On appeal, the supreme court reversed and
ordered a new trial. Id. at 303-07.
This case is different from Varner because the jury foreperson's note did not
disclose the nature or content of the comment that made a juror uncomfortable.
Accordingly, there is nothing that would call into question any juror's ability to be impartial
and without prejudice. Given the complete absence of information about the comment
itself or the reason why one juror was uncomfortable, the district court did not have a duty
to inquire into the matter. Thus, the district court did not err, let alone plainly err, by not
sua sponte questioning one or more jurors about the comment. And even if Martinez Reyes
could establish a plain error, it would be only a matter of speculation as to whether the
alleged error affected his substantial rights.
Thus, the district court did not err by not conducting an investigation into the jurors'
qualifications after receiving a note from the jury foreperson.
III. Warrant of Commitment
Martinez Reyes last argues that the district court erred by filing a warrant of
commitment that, in his view, does not accurately reflect the district court's
pronouncements at the sentencing hearing concerning counts 3 and 4.
At sentencing, the district court first imposed a sentence of 144 months of
imprisonment on count 2. The district court then stated, "Counts 3 and 4 will merge for
the purposes of sentencing." The district court then imposed a sentence of 144 months of
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imprisomnent on count 1 and ordered that it be served consecutively to the sentence on
count 2.
The district court filed a warrant of commitment later that same day. The warrant
of commitment describes the sentences imposed on counts 1 and 2. The warrant of
commitment states the dispositions of count 3 and count 4 as "Convicted." In the space
provided for a description of the sentences on counts 3 and 4, the warrant of commitment
states, "None."
Martinez Reyes asks this court to "remand for correction of the warrant of
commitment so that it reflects no adjudication was imposed for counts 3 and 4." He does
not explain why the warrant of commitment is incorrect or why a correction is necessary.
The state contends that the warrant of commitment accurately reflects the fact that Martinez
Reyes was found guilty on all four counts and was sentenced on only counts 1 and 2.
The jury found Martinez Reyes guilty of the charges in counts 3 and 4. A jury's
verdict of guilt becomes a conviction if the verdict is "accepted and recorded by the comi."
Minn. Stat. § 609.02, subd. 5(2) (2020). A district court typically records a conviction by
making a "separate entry in the file," in writing, State v. Pjlepsen, 590 N.W.2d 759, 767
(Minn. 1999), or, stated slightly differently, by making the conviction "appear in a
judgment entered in the file," State v. Hoelzel, 639 N.W.2d 605, 609 (Minn. 2002). In this
case, the district court recorded Martinez Reyes's convictions on counts 3 and 4 by filing
a warrant of commitment that states that Martinez Reyes was "convicted" of those two
charges. The warrant of commitment is not inaccurate in that respect. The district court
did not state at the sentencing hearing that adjudication on either count 3 or count 4 was
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being stayed. See Minn. Stat. § 609.095(b) (2018). Rather, the district court stated that
counts 3 and 4 would "merge." In doing so, the district court did not use proper
tenninology. In State v. Walker, 913 N.W .2d 463 (Minn. App. 2018), we stated that such
a term does not "describe dispositions recognized by the law." Id. at 467. Nonetheless,
the district court's warrant of commitment is not inaccurate.
Thus, the district court did not err by filing a warrant of commitment that states that
Martinez Reyes was convicted of the charges in counts 3 and 4.
IV. Sufficiency of Evidence
Martinez Reyes filed a prose supplemental brief in which he denies that he engaged
in sexual conduct with L.A.-D. and asks this court to set aside his conviction. If a defendant
challenges the sufficiency of the evidence supporting a conviction, our standard of
appellate review requires us to view the evidence in the light most favorable to the
conviction. State v. Ortega, 813 N.W.2d 86, 100 (Minn. 2012). In other words, we must
"assume that the factfinder disbelieved any testimony conflicting with that verdict." State
v. Palmer, 803 N.W.2d 727, 733 (Minn. 2011) (quotation omitted). We will not disturb a
verdict if the fact-finder, "acting with due regard for the presumption of innocence and the
requirement of proof beyond a reasonable doubt, could reasonably conclude that the
defendant was guilty of the charged offense." Ortega, 813 N.W.2d at 100.
In this case, the state introduced abundant direct evidence of Martinez Reyes's guilt
through L.A.-D. 's testimony, which the jury apparently credited. This court may not
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second-guess the credibility of the state's witnesses or reweigh conflicting evidence. Thus,
we conclude that the evidence is sufficient to support the convictions.
Affirmed.
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