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This opinion is nonprecedential except as provided by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
A25-0433

State of Minnesota,
Respondent,

vs.

Hugo Alexander Monterroso Merida,
Appellant.

Filed February 17, 2026
Affirmed in part, reversed in part, and remanded
Johnson, Judge

Cottonwood County District Court
File No. 17-CR-22-249

Keith Ellison, Attorney General, Lisa Lodin, Assistant Attorney General, St. Paul,
Minnesota; and

Deja L. Weber, Cottonwood County Attorney, Windom, Minnesota (for respondent)

Ian S. Birrell, Birrell Law Firm, P.L.L.C., Minneapolis, Minnesota (for appellant)

Considered and decided by Johnson, Presiding Judge; Ross, Judge; and Ede, Judge.
NONPRECEDENTIAL OPINION
JOHNSON, Judge
A Cottonwood County jury found Hugo Alexander Monterroso Merida guilty of
first-degree criminal sexual conduct based on evidence that he sexually assaulted a young
teenage girl. We conclude that the district court erred by ordering an upward durational
sentencing departure based on an improper aggravating factor. We also conclude that the
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district court did not err by denying Monterroso Merida’s motion for a downward
dispositional sentencing departure. Therefore, we affirm in part, reverse in part, and
remand for resentencing.
FACTS
In March 2022, 13-year-old M.B. began communicating with Monterroso Merida,
a 27-year-old man, on Snapchat. Monterroso Merida told M.B. that he was 18 years old.
M.B. knew that Monterroso Merida worked in construction because he sent her
photographs of himself while he was at work.
On April 4, 2022, M.B. took her younger sister to a class at a community center in
the city of Windom. M.B. remained at the community center to spend time with her friends.
While there, M.B. received a message from Monterroso Merida, asking her whether she
wanted to hang out. M.B. responded that she could not hang out. But Monterroso Merida
sent her a message saying that he was “here.” M.B. was confused because she had not told
Monterroso Merida that she was at the community center, and she had not shared her
location information with Monterroso Merida. M.B. looked outside and saw a truck
belonging to a construction company, which she recognized from photographs Monterroso
Merida had sent her over Snapchat.
M.B. went to the main floor of the community center to wait for her father. She saw
Monterroso Merida, whom she believed to be the person she had been messaging.
Monterroso Merida asked whether M.B. was the person he had been messaging, and M.B.
said yes. M.B. walked away from Monterroso Merida, but he followed her to the third
floor. Monterroso Merida grabbed M.B. by her arm, pulled her into an unlocked storage
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room, and removed her pants and underwear. Monterroso Merida penetrated M.B.’s
vagina with his mouth, fingers, and penis, and he penetrated her mouth with his penis.
Monterroso Merida stopped penetrating M.B. when they heard footsteps. A woman
entered the storage room and saw M.B. and two piles of clothing on the floor, but the
woman did not see Monterroso Merida because he was hiding. M.B. put on her own
clothes, retrieved Monterroso Merida’s clothing, and left the room. Shortly thereafter,
Monterroso Merida appeared at the door with a bare chest and a beach towel wrapped
around his waist and asked the woman about his clothes. The woman reported the incident
to the police.
The state charged Monterroso Merida with two counts of first-degree criminal
sexual conduct, in violation of Minn. Stat. § 609.342, subd. 1a(e) (Supp. 2021 ), which
prohibits sexual penetration or sexual contact with a person younger than 14 years old by
a person more than 36 months older.
The case was tried to a jury on two days in August 2024. The state called five
witnesses, including M.B. Monterroso Merida did not testify and did not call any witnesses
or introduce any exhibits. In closing argument, the state urged the jury to find Monterroso
Merida guilty of the first charge based on evidence of sexual penetration and guilty of the
second charge based on evidence of sexual contact. See Minn. Stat. § 609.341, subds. 11,
12 (Supp. 2021).
The jury found Monterroso Merida guilty of both charges. In addition, the jury
returned a special-verdict form in which it found two aggravating factors: first, that
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Monterroso Merida subjected M.B. to multiple forms of penetration and, second, that M.B.
was particularly vulnerable due to her age.
At sentencing, the state urged the district court to impose an upward durational
departure. Monterroso Merida urged the district court to impose both a downward
durational departure and a downward dispositional departure based on his age, his lack of
a prior record, his cooperation and respect during court proceedings, his support from
family and friends, and the economic and emotional impact his incarceration would have
on his family. The district court imposed a sentence of 288 months of imprisonment, a
double upward durational departure, on count 1. The district court did not adjudicate guilt
on count 2. Monterroso Merida appeals.
DECISION
On appeal, Monterroso Merida challenges only his sentence. He argues that the
district court erred by ordering an upward durational departure and by not ordering a
downward dispositional departure.
The Minnesota Sentencing Guidelines prescribe presumptive sentences for felony
offenses. Minn. Sent ’g Guidelines 2.C (Supp. 2021). For any particular offense, a
presumptive sentence is “presumed to be appropriate for all typical cases sharing criminal
history and offense severity characteristics.” Minn. Sent’g Guidelines 1.B.13 (Supp.
2021). Accordingly, a district court “must pronounce a sentence . . . within the applicable
[presumptive] range, . . . unless there exist identifiable, substantial, and compelling
circumstances to support a departure.” Minn. Sent’g Guidelines 2.D.1 (Supp. 2021); see
also State v. Jones, 745 N.W.2d 845, 848 (Minn. 2008). “Substantial and compelling
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circumstances are those demonstrating that the defendant’ s conduct in the offense of
conviction was significantly more or less serious than that typically involved in the
commission of the crime in question.” State v. Hicks, 864 N.W.2d 153, 157 (Minn. 2015)
(quotation omitted).
Before departing from a guidelines sentence, a district court first must determine
whether “‘aggravating or mitigating circumstances are present’” and, if so, whether “those
circumstances provide a ‘substantial[] and compelling’ reason not to impose a guidelines
sentence.” State v. Soto, 855 N.W.2d 303, 308 (Minn. 2014) (alteration in original)
(quoting State v. Best, 449 N.W.2d 426, 427 (Minn. 1989), and Minn. Sent’ g Guidelines
2.D.1). If substantial and compelling reasons exist, the district court has discretion to order
a departure. Soto, 855 N.W.2d at 308; Best, 449 N.W.2d at 427. This court applies an
abuse-of-discretion standard of review to a district court’s decision to depart or not depart
from the presumptive sentence. State v. Edwards, 774 N.W.2d 596, 601 (Minn. 2009). We
will affirm an upward or downward departure if the reasons for the departure “are legally
permissible and factually supported in the record.” Id.
A. Upward Durational Departure
Monterroso Merida first argues that the district court erred by ordering an upward
durational departure.
To order an upward durational departure, there must be “(1) a factual finding that
there exists one or more circumstances not reflected in the guilty verdict or guilty plea, and
(2) an explanation by the district court as to why those circumstances create a substantial
and compelling reason to impose a sentence outside the range on the grid.” State v. Rourke,
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773 N.W.2d 913, 919 (Minn. 2009). The sentencing guidelines provide a non-exclusive
list of aggravating factors that may justify an upward departure. Minn. Sent’g Guidelines
2.D.3.b & cmt. 2.D.301 (Supp. 2021).
Monterroso Merida contends that one of the aggravating factors found by the jury—
particular vulnerability due to age—is an improper reason for an upward departure and that
the remaining aggravating factor—multiple forms of penetration—does not independently
justify the district court’s departure.
1. Particular Vulnerability Due to Age
Monterroso Merida contends that particular vulnerability due to age is an improper
sentencing departure factor because M.B.’s age is incorporated into an element of the
offense of which he was convicted.
In general, an upward durational departure may not be based on “factors that the
legislature has already taken into account in determining the degree or seriousness of the
offense.” State v. Shattuck, 704 N.W.2d 131, 140 (Minn. 2005). If the victim’s age is a
factor that determines the degree or seriousness of the offense, the victim’s age, including
any vulnerability due to age, may not be considered as an aggravating factor. See Taylor
v. State, 670 N.W.2d 584, 589 (Minn. 2003).
The offense of which Monterroso Merida was convicted prohibits “penetration with
anyone under 18 years of age or sexual contact with a perso n under 14 years of age . . . if
. . . the complainant is under 14 years of age and the actor is more than 36 months older
than the complainant.” Minn. Stat. § 609.342, subd. 1a(e). This statute is, as a practical
matter, the same statute of which the appellant was convicted in Taylor, in which the
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district court also departed upward based in part on the victim’s particular vulnerability
due to age. 670 N.W.2d at 585, 589 (citing Minn. Stat. § 609.342, subd. 1(a) (2002)). The
supreme court concluded in Taylor that the victim’s particular vulnerability due to age was
an “inappropriate bas[i]s for departure where those facts were already taken into account
by the legislature in determining the degree of seriousness of the offense.” Id. at 589 (citing
State v. Hagen, 317 N.W.2d 701, 703 (Minn. 1982); State v. Peterson, 329 N.W.2d 58, 60
(Minn. 1983); State v. Johnson, 327 N.W.2d 580, 583 (Minn. 1982)).
In its brief, the state does not attempt to argue that Taylor does not apply. At oral
argument, the state’s appellate attorney conceded that particular vulnerability due to age is
not a valid aggravating factor in this case. Based on Taylor, we agree.
Thus, the district court erred by relying on the aggravating factor of particular
vulnerability due to age.
2. Multiple Forms of Penetration
Monterroso Merida also argues that multiple forms of penetration is an improper
aggravating factor in this case on the ground that there was “one brief and uninterrupted
encounter in a single location,” which “involved one continuous behavioral incident with
no meaningful temporal separation or intervening circumstances.”
Monterroso Merida cites no authority for the proposition that the multiple-forms-
of-penetration aggravating factor applies only if there were multiple incidents. In State v.
Yaritz, 791 N.W.2d 138 (Minn. App. 2010), rev. denied (Minn. Feb. 23, 2011), this court
noted the appellant’s concession “that multiple forms of sexual penetration during a single
behavioral incident is a valid departure ground.” Id. at 146. In other cases , this court
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typically has focused solely on whether the appellant engaged in multiple forms of
penetration, without regard for whether multiple forms of penetration occurred during
multiple incidents. See, e.g., State v. Adell, 755 N.W.2d 767, 773-75 (Minn. App. 2008),
rev. denied (Minn. Nov. 25, 2008); State v. Incantalupo, No. A19-2068, 2021 WL 21594,
at *2 (Minn. App. Jan. 4, 2021), rev. denied (Minn. Mar. 30, 2021); State v. Alejo-Rubio,
No. A16-0689, 2017 WL 1208754, at *2 (Minn. App. Apr. 3, 2017), rev. denied (Minn.
June 20, 2017); Grimes v. State, No. A10-613, 2011 WL 134946, at *2-4 (Minn. App.
Jan. 18, 2011), rev. denied (Minn. Mar. 15, 2011); cf. Hoversten v. State, No. A22-1263,
2023 WL 3047986, at *3 (Minn. App. Apr. 24, 2023) (noting that “[t]his factor can apply
even in cases . . . involving multiple acts committed over an extended period of time”); see
also Minn. R. Civ. App. P. 136.01, subd. 1(c) (providing that nonprecedential opinions are
“not binding authority” but “may be cited as persuasive authority”).
In this case, the jury found that Monterroso Merida subjected M.B. to multiple forms
of penetration. The district court expressly noted the evidence that Monterroso Merida
penetrated M.B. with his fingers, his mouth, and his penis, and that he “subjected her to
multiple forms of oral and vaginal penetration.” The district court did not err by relying
on the aggravating factor of multiple forms of penetration.
3. Whether Reversal is Required
Monterroso Merida last argues that the district court’s upward durational departure
must be reversed because it was influenced in part by an improper aggravating factor,
particular vulnerability due to age.
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Monterroso Merida’s argument raises the question whether, if a district court relies
on one valid aggravating factor and one invalid aggravating factor , an appellate court
should affirm the sentence or reverse and remand for resentencing. “In deciding whether
to affirm or remand, we must determine whether the district court would have imposed the
same sentence absent reliance upon the improper aggravating factor.” State v. Stanke, 764
N.W.2d 824, 828 (Minn. 2009). “In doing so, we consider the weight given to the invalid
factor and whether any remaining factors found by the court independently justify the
departure.” Id. A remand generally is required unless we determine that the district court
would have imposed the same sentence absent reliance on the invalid factor. State v.
Vance, 765 N.W.2d 390, 395 (Minn. 2009).
The record of the sentencing hearing indicates that the district court was concerned
about both M.B.’s particular vulnerability due to her age and Monterroso Merida’s
engaging in multiple forms of penetration. The district court repeatedly referred to facts
relevant to both of those factors. Notably, the district court repeatedly referred to M.B. as
a “child” and described her as “young,” “small,” and “weaker than” Monterroso Merida.
Meanwhile, the district court described Monterroso Merida as “a grown man” who was
“working in construction.” The district court commented that M.B. was at a place where
parents “drop their children off for youth activities” and “assume that [it] is a safe place for
them to be,” and commented further that a “grown man . . . showing up at a youth center,
taking a child to a room . . . and raping her is every parent’s worst nightmare.” Given these
comments, we are unable to conclude that the district court would have imposed the same
sentence based only on the multiple-forms-of- penetration factor, without consideration of
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the particular-vulnerability-due-to-age factor. See Vance, 765 N.W.2d at 395; Stanke, 764
N.W.2d at 828; see also State v. Mohamed, 779 N.W.2d 93, 100 (Minn. App. 2010)
(reversing and remanding because “the record does not permit us to conclude that the
district court would have imposed the same sentence based on only the valid aggravating
factor”).
Thus, we reverse and remand for resentencing, with instructions to the district court
to determine, in its discretion, the appropriate sentence that should be imposed based on
the single valid aggravating factor: multiple forms of penetration.
B. Downward Dispositional Departure
Monterroso Merida also argues that the district court erred by denying his motion
for a downward dispositional departure from the presumptive sentence.
The sentencing guidelines provide a non-exclusive list of mitigating factors that may
justify a downward departure. Minn. Sent’g Guidelines 2.D.3.a & cmt. 2.D.301 (Supp.
2021). Particular amenability to probation is one of the mitigating factors recognized in
the sentencing guidelines as a basis for a downward dispositional departure. Minn. Sent’g
Guidelines 2.D.3.a(7) (Supp. 2021). Particular amenability to probation is not established
if the defendant is only somewhat amenable to probation. Soto , 855 N.W.2d at 308-09.
Rather, the defendant must be “particularly” amenable to probation in a way that
“distinguishes the defendant from most others and truly presents the substantial and
compelling circumstances that are necessary to justify a departure. ” Id. at 309 (quotation
omitted). In determining whether a defendant is particularly amenable to probation , a
district court may consider, among other things, “the defendant’s age, his prior record, his
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remorse, his cooperation, his attitude while in court, and the support of friends and/or
family.” State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982). “But the mere fact that a
mitigating factor is present in a particular case does not obligate the court to place
defendant on probation or impose a shorter term than the presumptive term.” State v. Pegel,
795 N.W.2d 251, 253-54 (Minn. App. 2011) (quotation omitted). Similarly, a district court
need not discuss all the Trog factors if the district court denies a motion for a downward
dispositional departure. Id. at 254.
Monterroso Merida contends that the district court erred by not giving proper weight
to several Trog factors: his age, his lack of a prior criminal record, his cooperation during
the proceedings, his support from family and friends, and his experience of cultural and
personal hardships. The record shows that the district court considered the factors
identified by Monterroso Merida. The district court acknowledged both Monterroso
Merida’s age (30 years old) and lack of prior criminal history and stated that those two
factors weighed in his favor. The district court explained that Monterroso Merida’ s
cooperation during the proceedings was a “non-factor” because his “attitude while in court
has been fine” and there “hasn’t really been a lot that [he has] been asked to cooperate
with.” The district court also noted that Monterroso Merida missed one court appearance
but was present at all others.
On the other hand, the district court also determined that some Trog factors weighed
against Monterroso Merida. The district court expressed its belief that Monterroso
Merida’s family would not properly support him on probation because they seemed
“oblivious” to the severity of the crime that he committed. The district court also stated
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that Monterroso Merida had not expressed remorse for the harm caused by his offense. In
addition, the district court stated that there was “no evidence” that Monterroso Merida
would be particularly amenable to probation and treatment because, in the nearly three
years since he confessed to the crime, he had been on pre-trial release but had taken no
steps to obtain sex-offender treatment. Accordingly, the district court denied Monterroso
Merida’s motion for a downward dispositional departure.
The district court’s reasons for not ordering a downward dispositional departure are
consistent with the record, including Monterroso Merida’s testimony and the testimony of
his wife. The district court did not abuse its discretion in the manner in which it weighed
the relevant factors or in its ultimate decision to deny Monterroso Merida’s motion for a
downward dispositional departure.
In sum, we affirm the district court’s denial of Monterroso Merida’s motion for a
downward dispositional departure, reverse the district court’s grant of the state’s request
for an upward durational departure, and remand for resentencing.
Affirmed in part, reversed in part, and remanded.