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This opinion is nonprecedential except as provided by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
A22-0078

State of Minnesota,
Respondent,

vs.

Abraham Palma Hernandez,
Appellant.

Filed October 10, 2022
Affirmed
Reilly, Judge

Mower County District Court
File No. 50-CR-20-595

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

Kristen Nelsen, Mower County Attorney, John Brooks, Assistant County Attorney, Austin,
Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Publi c Defender, Sharon E. Jacks, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Reilly, Presiding Judge; Reyes , Judge; and Halbrooks,
Judge.
*

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
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NONPRECEDENTIAL OPINION
REILLY, Judge
Appellant argues that he is entitled to be resentenced on his conviction for first -
degree criminal sexual conduct because (1) the district court erroneously relied on an audio
recording of another alleged sexual assault against the same victim that occurred years after
the charged conduct, and (2) the victim translated some phrases in the audio recording from
Spanish into English. We affirm.
FACTS
In March 2020, the Austin Police Department received a report that appellant
Abraham Palma Hernandez had sexually assaulted a woman, the victim, over several years.
Respondent State of Minnesota charged Hernandez with three counts of first -degree
criminal sexual conduct for multiple acts of sexual penetration against an individual under
16 years old with whom he had a significant relationship; three counts of first -degree
criminal sexual conduct for penetration, against an individual under 16 years old using
force or coercion; and six counts of third -degree criminal sexual conduct for penetrating
another person using force or coercion.
Hernandez agreed to plead guilty to one count of first -degree criminal sexual
conduct and t he state agreed to dismiss the remaining eleven counts. The parties did not
have an agreement about sentencing. The district court accepted the plea agreement and
ordered a presentence investigation (PSI) and a psychosexual evaluation. At sentencing,
the district court permitted the victim to read a victim impact statement. During her
statement, the victim told the district court that she had recorded a sexual assault and
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wished to play a portion of the audio recording. The district court permitted the victim to
play the recording, which was in Spanish. The victim translated portions of the recording
from Spanish into English. C ounsel also provided a transcript of the recording to the
district court, which had been prepared by a court-certified Spanish interpreter. The district
court then imposed a sentence of 172 months in prison, which was within the presumptive
range. This appeal follow s.
DECISION
Hernandez claims he is entitled to resentencing because the district court erred by
permitting the victim to play an audio recording and translat e portions of the recording
from Spanish into English. Hernandez did not object in district court. With no objection,
we review evidentiary issues for plain error. State v. Manthey , 711 N.W.2d 498, 504
(Minn. 2006) (citing Minn. R. Crim. P. 31.02). Under the plain-error test, we examine the
record to determine whether there was (1) an error, (2) tha t was plain, and (3) that affected
appellant’s substantial rights. State v. Gunderson, 812 N.W.2d 156, 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). But if “any one of the requirements” of the plain- error test is not
satisfied, we “need not address any of the others.” State v. Lilienthal, 889 N.W.2d 780,
785 (Minn. 2017) (quotation omitted).
Plainly Erroneous. Under the first two plain- error factors, Hernandez must show
that an error occurred and that the error was plain. “An error is plain if it is clear or
obvious.” State v. Webster, 894 N.W.2d 782, 787 (Minn. 2017) (quotation omitted). An
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error is “clear or obvious” if it “contravenes case law, a rule, or a standard of conduct.” Id.
(quotation omitted). An alleged error does not contravene case law unless the issue is
“conclusively resolved.” State v. Jones, 753 N.W.2d 677, 689 (Minn. 2008).
Hernandez claims the district court improperly permitted the victim to play a
recording as part of her victim impact statement. We do not agree. Crime victims have
“the right to submit an impact statement to the court at the time of sentencing.” Minn. Stat.
§ 611A.038(a) (2020). The purpose of a victim impact statement is to allow the victim to
provide additional information directly to the district court about “the harm or trauma
suffered by the victim as a result of the crime” and to allow the victim to express her
“reaction to the proposed sentence or disposition.” Id. (a)(1), (3). Here, t he victim stated
she continues to struggle with pain and anxiety because of the sexual assault. The victim
explained that she listened to the recording while she attempted suicide one time. The
victim did not present the audio to prove that Hernandez sexually abused her, but to reveal
the “harm or trauma” she suffered that led her to attempt suicide. The district court did no t
plainly err by permitting the victim to play a portion of the recording while explaining the
harm and trauma she suffered.
Hernandez also argues the district cou rt plainly erred by permitting the victim to
translate some phrases in the audio recording from Spanish into English. During her
statement, the victim stated that she said “no” twenty -seven times and told Hernandez to
“leave [her] alone” eighteen times. The victim stated that Hernandez asked her if she
planned to bathe today, if she would sleep without her underwear, if she would pretend to
sleep, and if she would undress , among other statements. The victim was not a court -
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appointed interpreter. But, a t the same time, counsel provided the district court with a
transcript of the recording. This transcript was prepared by a court -certified Spanish
interpreter. We discern no plain error in the district court’s decision to allow the victim to
testify about the contents of the audio recording and to accept a transcript from a court-
certified Spanish interpreter that did not materially differ from the victim’s testimony.
Prejudice. We determine, further, that Hernandez was not prejudiced by the district
court’s sentencing decision. “ The third prong, requiring that the error affect substantial
rights, is satisfied if the error was prejudicial and affected the outcome of the case. ” State
v. Griller, 583 N.W.2d 736, 741 (Minn. 1998). An appellant bears a “heavy burden” of
proof on the third element of the plain-error test. Kelley, 855 N.W.2d at 283.
Hernandez argues the audio recording “significantly influenced the sentencing
judge when deciding what sentence to impose.” Hernandez’s argument ignores that the
district court imposed a guidelines sentence. The Minnesota Sentencing Guidelines set
forth sentences that “are presumed to be appropriate for the crimes to which they apply.”
Minn. Sent. Guidelines 2.D.1 ( 2020). District courts are afforded “great discretion” in
sentencing decisions and reversal is warranted “only for an abuse of that discretion.” State
v. Soto, 855 N.W.2d 303, 307- 08 (Minn. 2014) (quotation omitted). A district court is not
required to state r easons for imposing a presumptive sentence. State v. Johnson, 831
N.W.2d 917, 925 (Minn. App. 2013), rev. denied (Minn. Sept. 17, 2013). “We will affirm
the imposition of a presumptive guidelines sentence when the record shows that the
sentencing court carefully evaluated all the testimony and information presented before
making a determination.” Id. (quotation omitted).
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The record reflects that the district court carefully evaluated all the testimony and
information presented before imposing a guidelines sentence. The district court said that
it had reviewed the psychosexual evaluation report and the PSI before sentencing. The
psychosexual evaluation report revealed that Hernandez was only “taking partial
ownership for the sexual abuse” and continued to deny “the more significant aspects of the
abuse.” The PSI said that Hernandez “demonstrate[d] a general lack of remorse and
empathetic understanding of how he impacted the victim and tend[ed] to see himself as the
victim of the crime.” The PSI noted that Hernandez’s offense carried a severity level of
“A.” Hernandez had zero criminal history points. According to the Minnesota Sentencing
Guidelines, the presumptive sentence for Hernandez’s offense is a presumed commitment
of 144 months. The lower range is a sentence of 144 months, with an upper range of 172
months in prison.
The district court also permitted Hernandez to make a statement b ut stopped him
during his statement and cautioned him against “manipulation of the victim.” After hearing
Hernandez’s remarks the district court stated, “it is clear to me that you do not understand
the damage that you have caused [the victim] in this par ticular matter, nor do you
understand the damage that she will continue to suffer.” The district court then imposed a
sentence within the presumptive range. The district court’s statements before sentencing
do not show that the recording of the assault had any bearing on its decision.
Hernandez argues that the parties “both anticipated that [he] would be sentenced to
144 months, which is precisely what the PSI recommended.” But the record shows that
the parties did not have an agreement as to sentencing. At sentencing, the prosecutor noted
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that the PSI recommended a sentencing range from 144 months to 172 months, and that
the prosecutor would “make a recommendation in that range.” Defense counsel requested
a 144-month commit and noted that, “[u]ltimately, it’s gonna’ be [Hernandez’s] job to take
full responsibility here today and convince the Court why he should get the 144 and not
the 172 months.” These statements establish that the parties did not have an agreement
about sentencing.
In sum, t he audio recording did not prejudice Hernandez because the district court
imposed a sentence within the presumptive range. Nor did the certified translation differ
materially from the translation provided by the victim at sentencing. The district court’s
sentence is presumed to be appropriate. Soto, 855 N.W.2d at 308. Only a “rare” case
merits reversal of the district court’s imposition of the presumptive guidelines sentence .
State v. Kindem , 313 N.W.2d 6, 7 (Minn. 1981). This is not the “rare” ca se compelling
reversal. As a result, we affirm the district court’s sentencing decision.
Affirmed.