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This opinion is nonprecedential except as provided by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
A20-1632

State of Minnesota,
Respondent,

vs.

Victorino Gustavo Ventura Mendez,
Appellant.

Filed December 13, 2021
Affirmed in part, reversed in part, and remanded
Slieter, Judge

Nobles County District Court
File No. 53-CR-17-77

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

Joseph M. Sanow, Nobles County Attorney, Worthington, Minnesota; and

Travis J. Smith, Special Assistant County Attorney, Slayton, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Pub lic Defender, Jennifer Workman Jesness,
Assistant Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Slieter, Pres iding Judge; Worke, Judge; and Cochran,
Judge.
NONPRECEDENTIAL OPINION
SLIETER, Judge
In this direct appeal, appellant challenge s his conviction for first-degree criminal
sexual conduct, arguing that the district c ourt abused its discreti on by excluding other-
2
source-of-sexual-knowledge evidence involving the victim who experienced overlapping
periods of sexual assault by appellant and the victim’s cousin. The district court properly
exercised its discretion by excluding the challenged evidence pursuant to Minnesota Rule
of Evidence 412 and we affirm the conviction. Because the warrant of commitment does
not accurately reflect the district court’s pr onouncement during sentencing, we reverse in
part and remand to correct the warrant of commitment.
FACTS
Appellant Victorino Gustavo Ventura Mendez was found gu ilty by jury verdict of
two counts of first-degree criminal sexual cond uct, in violation of Minn. Stat. § 609.342,
subd. 1(a), (g) (2014): (1) sexual penetration or sexual contact with a person under 13 years
of age and the actor is more than 36 months older than the victim; and (2) sexual penetration
or sexual contact with a person under 16 years of age at the time of the act and the actor
has a significant relationship to the victim.
In April 2016, a Worthington police officer received a report that a 12-year-old
female victim had been sexually assaulted. At the time of the report, the victim identified
her cousin, Cesar Rosario L opez-Ramos, as her abuser. 1 In May 2016, the state charged
Lopez-Ramos with one count of first-degree criminal sexual conduct pursuant to Minn.
Stat. § 609.342, subd. 1(a). In December 2016, a jury found Lopez-Ramos guilty, and he
was sentenced to 144 months’ imprisonment.

1 In its order denying appellant’s motion, the district court took judicial notice of “the
criminal complaint, trial verdict, and appellate court orders in State v. Lopez-Ramos ,
53-CR-16-420.”
3
During the investigation, the police officer learned the victim was pregnant and that
Lopez-Ramos was excluded as the father. In September 2016, the victim first reported that
her paternal half-brother, appellant, also sexually assaulted her.
In October 2016, the police officer interviewed appellant, who stated that the victim
and appellant had lived in the same home since 2014. Appellant initially denied any sexual
contact with the victim, but after the officer told him that the victim was pregnant, appellant
admitted to having sexual intercourse with th e victim when he wa s 18 years old. The
officer drove appellant home after the interview. When the officer returned the next day
with a search warrant for appellant’s DNA, appellant was not home and efforts to locate
him were unsuccessful.
In January 2017, the State of Minnesota charged appellant with first-degree criminal
sexual conduct and the court issued a warrant for appellant’s arrest. Appellant was
apprehended in September 2019 in Colo rado and, after waiv ing extradition, was
transported back to Minnesota. The state obtained a district court order requiring appellant
to provide a DNA sample which indicated he was the father of the victim’s child.
In March 2020, the district court consider ed and denied appellant’s rule 412 motion
to permit evidence of the victim’s sexual a buse by Lopez-Ramos to demonstrate that
someone other than appellant was the source of her sexual knowledge or familiarity with
sexual matters.
At sentencing, the district court pronounced a judgment of conviction for count two
only, in violation of Minn. Stat. § 609.342, subd. 1(g), and imposed the presumptive prison
sentence of 144 months. However, the warrant of commitment, which includes the terms
4
of appellant’s sentence, reflects a judgment of conviction for both counts. This appeal
follows.
DECISION
I. The district court was within its discretion to exclude evidence of sexual assault
by Lopez-Ramos.

Generally, “[e]videntiary rulings rest with in the sound discretion of the district
court,” and on review, we will not reverse “absent a clear abuse of discretion.” State v. Ali,
855 N.W.2d 235, 249 (Minn. 2014). “We review a district court’s evidentiary rulings for
abuse of discretion, even when, as here, the defendant claims that the exclusion of evidence
deprived him of his constitutional right to a meaningful opportunity to present a complete
defense.” State v. Zumberge, 888 N.W.2d 688, 694 (Minn. 2017). “A district court abuses
its discretion when its decision is based on an erroneous view of the law or is against logic
and the facts in the record.” State v. Hallmark , 927 N.W.2d 281, 291 (Minn. 2019)
(quotation omitted).
A defendant has the right to present a complete defense and to confront his accuser
under the United States and Mi nnesota Constitutions. U.S. Co nst. amend. VI, XIV, § 1;
Minn. Const. art. I, § 7; State v. Crims , 540 N.W.2d 860, 865 (Minn. App. 1995), rev.
denied (Minn. Jan. 23, 1996). The right to a co mplete defense is subj ect to the rules of
evidence. State v. Hannon , 703 N.W.2d 498, 506 (Minn. 2005). We conclude that no
abuse of discretion occurred by the district court excluding the evidence regarding a source
of sexual knowledge.
5
The rules of evidence generally exclude as irrelevant a victim’s sexual history in
prosecutions for criminal sexual conduct. Minn. R. Evid. 412(1); see also State v. Olsen,
824 N.W.2d 334, 340 (Minn. App. 2012), rev. denied (Minn. Feb. 27, 2013). This rule is
commonly known as the rape-shield rule. See State v. Benedict , 397 N.W.2d 337, 341
(Minn. 1986). “In a prosecution for acts of criminal sexual conduct . . . evidence of the
victim’s previous sexual con duct shall not be admitted nor shall any reference to such
conduct be made in the presence of the jury” unless “the probative value of the evidence is
not substantially outweighed by its inflammatory or prejudicial nature.” Minn. R. Evid.
412(1).
“Despite the prohibition of a rape-shield law or rule, a trial court has discretion to
admit evidence tending to establish a source of knowledge of or fa miliarity with sexual
matters in circumstances wher e the jury otherwise would lik ely infer that the defendant
was the source of the knowledge.” Benedict, 397 N.W.2d at 341. But the district court
must “balance the probative valu e of the evidence against its potential for causing unfair
prejudice.” Id.
Appellant argues that the Lopez-Ramos evid ence was relevant to establish that
Lopez-Ramos, not appellant, was the source of the victim’s sexual knowledge and refers
to Benedict and State v. Kroshus, 447 N.W.2d 203 (Minn. App. 1989), rev. denied (Minn.
Dec. 20, 1989), to support his argument. We conclude that Benedict and Kroshus are
inapplicable to these facts and, thus, do not provide support for appellant’s argument.
In Benedict, the defendant claimed that the district court “improperly refused to let
him show that the [victim]’s knowledge came from his family, not from [the] defendant.”
6
397 N.W.2d at 340-41. An expert testified to the source of the victim’s knowledge of
sexual matters. In particular, “the victim exhibited an unusual knowledge of sexual
activities for someone his age and that it was th e result of the [victim] having been given
an education by somebody.” Id. at 340. The supreme court held that the district court “has
discretion to admit evidence te nding to establish a source of knowledge of or familiarity
with sexual matters in circumstances where th e jury otherwise would likely infer that the
defendant was the source of the knowledge.” Id. at 341.
Similarly, in Kroshus, a psychologist specializing in the treatment of
developmentally delayed individuals testified that the victim was incapable of fabricating
an intricate story of sexual abuse, could not function at an abstract level, and probably
could not consistently make up or keep reporting sexual abuse unless she had experienced
it or had repeatedly seen very explicit pornog raphic material. 447 N.W.2d at 204. This
court concluded that “the jury could infer” that the victim “could not have made the
allegations involving [the defendant] unless the events she described had occurred” based
on testimony concerning the victim’s “inability to function at such an abstract level” and
that the victim was “not educated about sexual matters.” Id. at 205.
We agree with the district court’s conclusion that the relevance of the Lopez-Ramos
evidence was “extremely questi onable” and the balancing test in this case “weighs
significantly in favor of the State.” As the district court reasoned:
Because the State’s evidence in this case includes evidence of
pregnancy caused by the [appellant], the relevance of a prior
sexual assault is limited. The prejudice of the prior evidence
in this case relates to bringi ng up the Victim’s prior sexual
victimization at the hands of another adult male, which, in
7
addition to being humiliating, unfairly prejudices and
stigmatizes the Victim and has the potential to confuse the
issues and mislead the jury.
. . . [W]hether the Victim had prior knowledge of sexual
matters because of [the Lopez-Ramos] sexual assault is not
relevant under these facts becau se this does not explain-away
the DNA results or the [appellant]’s alleged confession.

The record supports the district court’s co nclusion that the primar y evidence supporting
guilt was the victim’s pregnancy, the DNA test establishing appellant as the father, and
appellant’s confession—not the victim’s source of sexual knowledge. Unlike Benedict and
Kroshus, the circumstances here are not such that the jury could infer that the victim “could
not have made the allegations involving [app ellant] unless the events she described had
occurred” because there was no testimony concer ning the victim’s disabilities or lack of
education “about sexual matters.” 447 N.W.2d at 205. Therefore, the district court
properly exercised its discretion in denying appellant’s motion.2
II. Appellant should receiv e one conviction for fi rst-degree criminal sexual
conduct.

Minnesota law provides that “[u]pon pr osecution for a crime, the actor may be
convicted of either the crime charged or an included offens e, but not both.” Minn. Stat.
§ 609.04, subd. 1 (2020). A dditionally, “if a person’s conduct constitutes more than one
offense under the laws of this state, the person may be punished for only one of the offenses

2 Appellant filed a pro se supplemental brief raising several claims which, because they are
not clear, we summarize as a claim of insuffic iency of the evidence to support the jury’s
guilty verdicts. However, appellant failed to support his argument with any citation to the
factual record or to legal authority and, therefore, we deem them forfeited. State v. Krosch,
642 N.W.2d 713, 719 (Minn. 2002); see also State v. Beaulieu, 859 N.W.2d 275, 278 n.3
(Minn. 2015) (failure to make a timely assertion of a right is a forfeiture of that right).
8
and a conviction or acquittal of any one of them is a bar to prosecution for any other of
them.” Minn. Stat. § 609.035, subd. 1 (2020).
Courts may “look to the official judgment of conviction in the district court file as
conclusive evidence of whether an offense has been formally adjudicated.” Spann v. State,
740 N.W.2d 570, 573 (Minn. 2007) (quotation omitted). The warrant of commitment
reflects that appellant was convicted of tw o counts arising from the same behavioral
incident though the district court pronounced conviction of only one count of first-degree
criminal sexual conduct at sentencing.
Therefore, we reverse in part and remand to the district court to correct the warrant
of commitment to reflect judgment of convic tion for one count of first-degree criminal
sexual conduct.
Affirmed in part, reversed in part, and remanded.