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This opinion is nonprecedential except as provided by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
A24-0415

State of Minnesota,
Respondent,

vs.

Rigoberto Izucar Espitia,
Appellant.

Filed June 30, 2025
Affirmed in part, reversed in part, and remanded
Wheelock, Judge

Hennepin County District Court
File No. 27-CR-21-22417

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

Mary F. Moriarty, Hennepin County Attorney, Linda M. Freyer, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

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

Considered and decided by Ross, Presiding Judge; Connolly, Judge; and Wheelock,
Judge.
NONPRECEDENTIAL OPINION
WHEELOCK, Judge
In this direct appeal from his convictions for criminal sexual conduct, appellant
asserts that the district court abused its discretion by denying his request for a continuance
2
on the morning of trial and by entering a judgment of conviction on a lesser included
offense. We affirm in part, reverse in part, and remand.
FACTS
Respondent State of Minnesota charged appellant Rigoberto Izucar Espitia in
December 2021 1 with three criminal offenses against his stepchild: (1) first-degree
criminal sexual conduct involving a victim under age 16 with whom Espitia had a
significant relationship and multiple acts over a period of time from May 2017 through
October 2021, in violation of Minn. Stat. § 609.342, subd. 1(h)(iii) (2016); (2) first-degree
criminal sexual conduct involving a victim aged 13 to 15 over whom Espitia was in a
position of authority, taking place from July 2019 through September 2021, in violation of
Minn. Stat. § 609.342, subd. 1(b) (Supp. 2019); and (3) second-degree criminal sexual
conduct involving a victim aged 13 to 15 over whom Espitia was in a position of authority,
taking place from May 2017 through October 2021, in violation of Minn. Stat. § 609.343,
subd. 1(b) (2016).
Espitia is the stepfather of D.M.B., the victim in this matter. D.M.B. has known
Espitia for most of their life, as they were born in 2006 and their family moved in with
Espitia when they were roughly five years old. The abuse at issue in this case began in the
spring of 2017 and ended in the fall of 2021.

1 The state amended its complaint in February 2023 to add count three, the second-degree
charge, and during trial, it amended count three to correct the date range of the offense.

3
Espitia appeared for an omnibus hearing in March 2022, and the parties scheduled
a jury trial to start in July 2022.2 In October 2022, the state submitted a proposed witness
list that included a forensic interviewer, and in February 2023, the state filed a notice of
intent to introduce expert testimony that identified the forensic interviewer as its expert.
The parties appeared for a hearing the next week, at which the state requested a two-week
continuance of the trial date. Espitia opposed the admission of the expert’s testimony and
the request for a continuance but agreed that, if the expert’s testimony were admitted, he
“would need a lot more time than a week or two to prepare for that.” The district court
ruled that it would admit the state’s expert’s testimony, granted a continuance to give
Espitia time to review the expert’s information, and rescheduled the trial for April 2023.
Espitia ultimately found an expert to testify about a range of topics, including “the
science of memory, the science of memory contamination, the science of proper
investigations, the science of ‘clinical judgment’ by investigators, interviewers, and other
professionals, the science of confirmation bias, [and] the history of memory contamination
by counselors-investigators-therapists-peers and others.” Espitia filed a request for funds
to obtain the expert pursuant to Minn. Stat. § 611.21(a) (2024). In March 2023, the district
court granted the request, and a few weeks later, Espitia filed an amended witness list to
include his expert. Espitia submitted a request for additional funds because the expert lived
out of state.

2 There are gaps in the record on appeal, and therefore, we do not know the cause for the
delays in proceeding from charging to trial.
4
During a hearing in June 2023, the state argued that Espitia’s expert’s testimony
should be excluded, contending that the expert report was general and not relevant to the
case. At the hearing, the district court mentioned Espitia’s request for additional funds for
the expert’s travel expenses, and Espitia assured the district court that no funds would be
used unless the expert were permitted to testify at trial; however, the district court did not
rule on the motion. The district court then rescheduled the trial for October 2023. A week
or two before trial was set to begin, the district court inquired about the status of Espitia’s
request for additional funds pursuant to section 611.21(a), but Espitia never responded to
the inquiry or followed up on his request.
At the beginning of the trial, the district court ruled on the scope of Espitia’s expert’s
testimony, limiting it to the “science of memory” and prohibiting testimony on most of the
expert’s proposed topics. Espitia immediately requested a continuance to provide time for
the release of additional funds and to allow for the expert to travel to Minnesota. Espitia
had not yet arranged for the expert’s travel for the trial because the district court had not
granted the additional funds. The state objected to a continuance because of the length of
time the case had been pending, the number of times the trial had been rescheduled, and
Espitia’s knowledge of the trial date for several months. The district court opined that “the
date should have been at least secured with the . . . expert if there was any intent to . . . use
the expert in trial.” The district court also observed that Espitia’s counsel had never
followed up with it about the status of the request for additional funds. The district court
denied Espitia’s request for a continuance because of the length of time since the trial date
had been set and for which the case had been pending, but it approved the immediate
5
release of the additional funds Espitia requested. On the third day of trial, which was the
day the state rested its case, Espitia expressed his hope that he would be able to “get [the
expert witness] here tomorrow”; however, his expert did not testify at trial.
At trial, D.M.B. testified about pervasive abuse throughout an almost five-year
period. Some of D.M.B.’s family members, including their mother and older sister,
presented testimony that, at times, called into question the truthfulness of D.M.B.’s
statements. Espitia testified on his own behalf, refuting all of D.M.B.’s testimony. The
state played two video recordings for the jury: a very brief video recording that D.M.B.
made of Espitia running his hand up their thigh on one occasion and D.M.B.’s forensic
interview. The forensic interviewer testified at the trial, explaining forensic interviewing,
why children incrementally disclose abuse and wait to disclose abuse, and how abuse
affects a teenager’s already heightened emotions.
During its closing argument, the state discussed memory and referenced the forensic
interviewer’s testimony about delayed disclosure of abuse and changing details in a
victim’s reports of abuse. The state also emphasized those details in D.M.B.’s testimony
that were corroborated by other family members to demonstrate D.M.B.’s credibility.
Espitia’s closing argument highlighted the testimony of family members who questioned
D.M.B.’s truthfulness, and it pointed to the inconsistencies within D.M.B.’s testimony.
The jury found Espitia guilty of all three c harges. The district court entered
judgments of conviction for all three offenses but imposed a sentence of 144 months in
prison for only count one.
Espitia appeals.
6
DECISION
Espitia asserts that the district court abused its discretion by denying his motion for
a continuance and that it erred by entering a conviction on count three because it was a
lesser included offense.3 We address Espitia’s arguments in that order.
I. The district court did not abuse its discretion by denying Espitia’s request for
a continuance on the morning of trial.
“The decision whether to grant a continuance is within the [district] court’s
discretion and will be reversed upon a showing that the [district] court abused its
discretion.” State v. Stroud, 459 N.W.2d 332, 335 (Minn. App. 1990). “In evaluating a
request for a continuance, the test is whether the denial of a continuance prejudices the
outcome of the trial.” Id. The reviewing court considers the circumstances that existed at
the time the motion to continue was made. State v. Turnipseed, 297 N.W.2d 308, 311
(Minn. 1980). But the central question remains whether the defendant was so prejudiced
as to materially affect the outcome of the trial. State v. Smith, 932 N.W.2d 257, 268 (Minn.
2019).
When determining the extent of any prejudice from the denial of a continuance, we
may consider many factors, including the length of time in which the party could have
addressed the problem without the continuance, the length of time between the moving
party’s awareness of the need for a continuance and the motion for a continuance, the

3 Espitia raises four additional arguments in a pro se brief ; however, “[a]rguments are
forfeited if they are presented in a summary and conclusory form, do not cite to applicable
law, and fail to analyze the law when claiming that errors of law occurred.” State v. Bursch,
905 N.W.2d 884, 889 (Minn. App. 2017). Because Espitia’s additional arguments are
forfeited, we do not address them.
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reason for the continuance and its effect on the merits of the moving party’s case, the time
that the case was pending, the proximity of the request to the start of trial, the number of
continuances requested by the moving party, and the strength of the evidence to support
the verdict. See id. at 269 (considering whether defendant’s counsel had “ample time” to
acquire and review the evidence); State v. Rainer, 411 N.W.2d 490, 495 (Minn. 1987)
(affirming the denial of a continuance because receiving a report 13 days before the start
of trial provided sufficient time to address the asserted problem); State v. Lloyd,
345 N.W.2d 240, 247 (Minn. 1984) (considering the length of time between the indictment
and trial and the proximity of the continuance motion to the start of trial); Turnipseed,
297 N.W.2d at 311-12 (concluding that there was no abuse of discretion in denying a
continuance because a “fair reading of the record” showed the strength of the state’s case
and that the witness’s testimony would not have helped the defendant’s case); State v.
Beveridge, 277 N.W.2d 198, 199 (Minn. 1979) (considering the number of requests for
continuances, the proximity of the request to the start of trial, and the strength of the
evidence to support the verdict).
Espitia argues that good cause existed to grant the continuance because his expert’s
testimony was an important part of his defense, he made the request as soon as the district
court determined what testimony was admissible, he had not previously requested a
continuance, and the interests of justice required granting the request because he was not
incarcerated and there was no speedy-trial request that would be violated. He argues that
he was prejudiced because the case hinged on the victim’s credibility and the testimony of
his expert would have explained the inconsistencies in the victim’s testimony, the state
8
presented an expert and it was “lopsided” not to continue the trial to allow his expert’s
testimony, and his expert was the only unbiased person who would testify at trial . Thus,
he contends that the denial of the continuance caused the jury to return a guilty verdict.
The state argues that the district court did not abuse its discretion for numerous
reasons. Principally, the state argues that Espitia cannot show prejudice because his theory
of the case—that D.M.B. lied—was fully presented to the jury and the expert’s testimony
would not have supported this theory. In making this argument, the state notes that
Espitia’s brief does not explain the content of his expert’s testimony that would have
supported this theory. The state maintains that Espitia should have raised the outstanding
motions on his expert’s funds prior to the start of trial if the expert was necessary to his
case and that, although Espitia never requested a continuance, the district court granted him
a continuance after it admitted the state’s expert. Finally, the state argues that granting a
continuance on the first day of trial would have prejudiced the state because the victim
deserves resolution.
We are not persuaded that the district court abused its discretion by denying the
continuance request. Here, the district court expressly considered the prejudice that would
result if the continuance were or were not granted, acknowledging that the case had been
pending for two years, that the charges were serious, and that Espitia might not be able to
present his expert’s testimony. Upon review, we conclude that, overall, the balance of
factors is fairly even—ultimately weighing against a determination that Espitia was
prejudiced by the denial of the continuance. The factors that weigh in favor of granting
the continuance are that Espitia had not yet requested a continuance and that he requested
9
the continuance as soon as the district court ruled on the scope of his expert’s testimony
that was admissible. The factors weighing against the continuance are that he made the
request as the trial was beginning, the case had been pending for nearly two years, he had
at least three months to arrange for the expert to be available during trial, and he did not
request a ruling on his pending motion for additional funds even though he knew the dates
for which the trial was scheduled. Moreover, the charges against Espitia were serious and
the jury-trial transcript demonstrates that Espitia was able to make his arguments about
D.M.B.’s credibility and memory even without his expert because multiple witnesses
questioned the honesty of D.M.B.’s testimony, Espitia questioned the accuracy of D.M.B.’s
memories and highlighted the discrepancies in their disclosures at every turn, Espitia
testified and refuted D.M.B.’s testimony, and the forensic interviewer admitted that there
was no way to know whether D.M.B. was telling the truth.
Based on the strength of the state’s case, Espitia cannot show that the denial of his
motion for a continuance so prejudiced him as to materially affect the outcome of his trial
and, thus, that his convictions should be reversed and the case remanded for a new trial.
Other witnesses corroborated various details of D.M.B.’s testimony, and the state published
to the jury a video of Espitia stroking D.M.B.’s thigh. The absence of testimony from
Espitia’s expert about the “science of memory” did not compel the jury to find Espitia
guilty, as his argument suggests. The jury had the ability to make credibility
determinations of all the witnesses, and the jury returned guilty verdicts.
Although two factors weighed in favor of granting the continuance, many factors
weighed against it, and we discern no abuse of discretion by the district court when it
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denied Espitia’s motion for a continuance. Thus, we conclude that Espitia is not entitled
to a new trial.
II. The district court erred by entering a judgment of conviction for count three
because it was a lesser included offense.
Espitia argues, and the state agrees, that the district court erred by entering a
judgment of conviction for count three, second-degree criminal sexual conduct, because it
is a lesser included offense of first-degree criminal sexual conduct. The jury found Espitia
guilty of all three charges, and the district court entered judgments of conviction on each
count.
A criminal defendant “may be convicted of either the crime charged or an included
offense, but not both.” Minn. Stat. § 609.04, subd. 1 (2016). A lesser degree of the same
crime is considered a n included offense. Id. Whether a conviction is barred by
section 609.04 is a legal question reviewed de novo. State v. Cox, 820 N.W.2d 540, 552
(Minn. 2012).
Here, the district court entered judgments of conviction on two counts of first-degree
criminal sexual conduct (counts one and two) and one count of second-degree criminal
sexual conduct (count three). A conviction for second-degree criminal sexual conduct
requires “sexual contact,” whereas a conviction for first-degree criminal sexual conduct
requires “penetration.” Compare Minn. Stat. § 609.342, subd. 1 (first degree), with Minn.
Stat. § 609.343, subd. 1 (second degree). Second-degree criminal sexual conduct is a lesser
included offense of a first-degree criminal sexual conduct because it is “a lesser degree of
the same crime,” Minn. Stat. § 609.04, subd. 1, and therefore, we reverse and remand for
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the district court to vacate the entry of judgment of conviction on count three but leave the
jury’s finding of guilt intact. See State v. Hallmark, 927 N.W.2d 281, 300 (Minn. 2019).
Affirmed in part, reversed in part, and remanded.