                          This opinion will be unpublished and
                          may not be cited except as provided by
                          Minn. Stat. § 480A.08, subd. 3 (2014).

                               STATE OF MINNESOTA
                               IN COURT OF APPEALS
                                     A14-2188

                                    State of Minnesota,
                                       Respondent,

                                            vs.

                                    Reynaldo Benitez,
                                       Appellant.

                                Filed December 28, 2015
                                       Affirmed
                                    Schellhas, Judge

                             Hennepin County District Court
                               File No. 27-CR-13-34703

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Michael O. Freeman, Hennepin County Attorney, Elizabeth R. Johnston, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Lydia Villalva Lijó, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

       Considered and decided by Schellhas, Presiding Judge; Rodenberg, Judge; and

Reilly, Judge.

                         UNPUBLISHED OPINION

SCHELLHAS, Judge

       Appellant challenges his conviction of first-degree criminal sexual conduct, arguing

that he is entitled to a new trial due to the admission of testimony from unsworn witnesses,
erroneous evidentiary rulings, and prosecutorial misconduct. Appellant also challenges his

upward durational sentencing departure. We affirm.

                                           FACTS

         Appellant Reynaldo Benitez resided with M.M., his girlfriend; B.W.; and B.W.’s

three minor children, Z.W., N.W., and F.W. Benitez and M.M. viewed all of the children

as their grandchildren.1 In July 2013, after B.W. lost custody of the children, the children

went to live with R.W., their great aunt. In October 2013, N.W., then six years old,

disclosed to R.W. that, when N.W. lived with Benitez, he “put [his penis] in her” and “put

[his penis] in [her] mouth.” R.W. alerted child-protection authorities and law enforcement,

who arranged for N.W. to participate in a forensic interview during which N.W. stated that

Benitez “put his private part in [her] mouth,” that “his private part [went] in [her] private

part,” and that these acts occurred when she was five years old.

         Respondent State of Minnesota charged Benitez with first-degree criminal sexual

conduct, notified him of the state’s intention to seek an upward departure from the

presumptive sentence under the Minnesota Sentencing Guidelines, and moved to admit

relationship and Spreigl evidence of Benitez’s alleged sexual conduct with Z.W., who was

born in 2004. The district court ruled that the evidence was admissible as relationship and

Spreigl evidence to demonstrate a common scheme or plan and to refute an allegation of

fabrication or mistake.




1
    M.M. is the paternal grandmother of at least one of the children.

                                               2
       At a jury trial in August 2014, N.W. testified that Benitez “put[] his private part in

[her] private part” and put his “private part . . . inside [her] mouth” when she was five years

old. N.W. testified that these acts occurred more than one time and on multiple days. Z.W.

testified that, when he was between three and seven years old, Benitez “ripped off” Z.W.’s

clothing and touched Z.W’s “privates” and “butt” with his hand. Z.W. also explained that

a picture that he had drawn depicted Benitez ripping off Z.W.’s clothes and humping Z.W.

naked. Benitez testified and denied engaging in sexual conduct with N.W. and Z.W. The

jury found Benitez guilty of first-degree criminal sexual conduct.

       At a separate proceeding, the district court instructed the jury to determine whether

Benitez penetrated N.W.’s genital opening with his penis, whether Benitez penetrated

N.W.’s mouth with his penis, whether Benitez was acting in the place of a parent at the

time of the act, and whether Benitez had “responsibility for the health, welfare or

supervision of [N.W.], no matter how brief, at the time of the act.” The jury responded to

each of these questions in the affirmative. At sentencing, the district court referenced the

jury’s findings, noting that Benitez committed multiple forms of penetration against N.W.

and that Benitez was supposed to be caring for N.W. and instead sexually abused her. The

court imposed an upward-departure sentence of 344 months’ imprisonment.

       This appeal follows.

                                      DECISION

                                              I.

       Before N.W., then age seven, testified, the district court conducted the following

inquiry:


                                              3
             THE COURT: . . . Do you know what it means to tell the truth,
             [N.W.]?
             N.W.: Yeah.
             THE COURT: All right. So if I said that this was black, would
             that be the truth or not the truth?
             N.W.: Not the truth.
             THE COURT: Okay. Have you ever told a lie before?
             N.W.: No.
             THE COURT: Okay. If I ask you to tell the truth, will you do
             that?
             N.W.: Yes.
             THE COURT: Okay. And with your promise to tell the truth,
             that means not to hide anything, okay?
             N.W.: Okay.
             THE COURT: All right. You have to tell everything you
             remember when a question is asked, okay?
             N.W.: Okay.

       Before Z.W., then age ten, testified, the district court conducted the following

inquiry:

             THE COURT: . . . [Z.W.], do you know the difference between
             a truth and a lie?
             Z.W.: Yep.
             THE COURT: Okay. If I said that this was black, would that
             be the truth or would that be a lie?
             Z.W.: A lie.
             THE COURT: Okay. And in this case now, questions are going
             to be asked of you and I want you to tell the truth. Will you do
             that?
             Z.W.: Yeah.
             THE COURT: What happens if you tell a lie at school or at
             home?
             Z.W.: I get in trouble.
             THE COURT: Okay. And have you ever told a lie before?
             Z.W.: Yeah.
             THE COURT: Okay. And did you get in trouble?
             Z.W.: Yeah.
             THE COURT: Okay. With your promise to tell the truth, that
             means not to hide anything, do you understand that?
             Z.W.: Yeah.



                                            4
              THE COURT: Okay. You have to tell everything you
              remember when you are asked a question, okay?
              Z.W.: Yeah.

       With no objection by Benitez, the district court substituted these inquiries of the

children for its administration of an oath. The supreme court has held that “failure to swear

a witness in an ordinary civil trial, or even in a criminal trial, may be waived by failure to

object.” State v. Lopez-Rios, 669 N.W.2d 603, 615 (Minn. 2003) (quotation omitted)

(concluding that defendant waived argument that district court erred by allowing witness

to testify without being sworn by failing to object at trial).2 “Plain error affecting a

substantial right can be considered . . . on appeal even if it was not brought to the trial

court’s attention.” Minn. R. Crim. P. 31.02. Plain-error analysis “requires the defendant to

establish (1) an error, (2) that is plain, and (3) that affects the defendant’s substantial

rights.” State v. Davis, 864 N.W.2d 171, 176 (Minn. 2015).

       “Before testifying, every witness shall be required to declare that the witness will

testify truthfully, by oath or affirmation administered in a form calculated to awaken the

witness’ conscience and impress the witness’ mind with the duty to do so.” Minn. R. Evid.

603. “Rule 603 is designed to afford the flexibility required in dealing with children.

Affirmation is simply a solemn undertaking to tell the truth; no special verbal formula is

required.” State v. Mosby, 450 N.W.2d 629, 633 (Minn. App. 1990) (quotation omitted),

review denied (Minn. Mar. 16, 1990).


2
  The supreme court recently clarified that use of the term “forfeiture,” rather than
“waiver,” is proper when discussing a defendant’s failure to object to an alleged error. See
State v. Beaulieu, 859 N.W.2d 275, 278 n.3 (Minn. 2015), cert. denied, 136 S. Ct. 92 (Oct.
5, 2015).

                                              5
       N.W. and Z.W. confirmed that they understood the difference between the truth and

a lie. They agreed to tell the truth, not to hide anything, and to tell everything that they

remembered when being questioned. We conclude that the children’s statements satisfied

rule 603 as sufficient affirmations to testify truthfully and that the district court did not err.

Cf. State v. Morrison, 437 N.W.2d 422, 428 (Minn. App. 1989) (concluding that “[t]he

child [witness] was administered the equivalent of an oath” when she “indicated she knew

what a lie was, what the truth was, and nodded her head when asked to promise to tell the

truth”), review denied (Minn. Apr. 26, 1989). Because the district court did not err, we need

not address the remaining steps in plain-error analysis.

                                               II.

       Benitez argues that the district court abused its discretion by admitting relationship

and Spreigl evidence of Benitez’s alleged sexual conduct with Z.W.

Relationship evidence

       We review for an abuse of discretion a district court’s decision to admit relationship

evidence under Minn. Stat. § 634.20 (2014). See State v. Matthews, 779 N.W.2d 543, 553

(Minn. 2010).

                      Evidence of domestic conduct by the accused against
               the victim of domestic conduct, or against other family or
               household members, is admissible unless the probative value
               is substantially outweighed by the danger of unfair prejudice,
               confusion of the issue, or misleading the jury, or by
               considerations of undue delay, waste of time, or needless
               presentation of cumulative evidence.

Minn. Stat. § 634.20. Domestic conduct includes domestic abuse, id., which includes

criminal sexual conduct, Minn. Stat. § 518B.01, subd. 2(a)(3) (2014). Evidence of domestic


                                                6
abuse “may be offered to illuminate the history” of a family or household relationship.

State v. McCoy, 682 N.W.2d 153, 159 (Minn. 2004).

       The probative value of Z.W.’s testimony was not substantially outweighed by

concerns of unfair prejudice, confusion of the issue, misleading the jury, undue delay,

waste of time, or needless presentation of cumulative evidence. The children’s descriptions

of sexual abuse were markedly similar, and Z.W.’s testimony was relevant to counter

Benitez’s contention that he never engaged in sexual conduct with N.W. The district court

did not abuse its discretion by admitting evidence of Benitez’s alleged sexual assault of

Z.W. as relationship evidence.

Spreigl evidence

       Evidence of other crimes, wrongs, or acts is commonly known as Spreigl evidence.

State v. Campbell, 861 N.W.2d 95, 102 (Minn. 2015) (citing State v. Spreigl, 272 Minn.

488, 491, 139 N.W.2d 167, 169 (1965)). A district court’s decision to admit Spreigl

evidence is reviewed for an abuse of discretion. Id.

       “Evidence of another crime, wrong, or act is not admissible to prove the character

of a person in order to show action in conformity therewith.” Minn. R. Evid. 404(b); see

also State v. Fardan, 773 N.W.2d 303, 315 (Minn. 2009) (stating that use of Spreigl

evidence is improper to “suggest[] that the defendant has a propensity to commit the crime

or that the defendant is a proper candidate for punishment for his or her past acts”

(quotation omitted)). But Spreigl evidence “may . . . be admissible for other purposes, such

as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence




                                             7
of mistake or accident.” Minn. R. Evid. 404(b). Spreigl evidence may be admitted in a

criminal prosecution only if

              (1) the prosecutor gives notice of its intent to admit the
              evidence consistent with the Rules of Criminal Procedure;
              (2) the prosecutor clearly indicates what the evidence will be
              offered to prove; (3) the other crime, wrong, or act and the
              participation in it by a relevant person are proven by clear and
              convincing evidence; (4) the evidence is relevant to the
              prosecutor’s case; and (5) the probative value of the evidence
              is not outweighed by its potential for unfair prejudice to the
              defendant.

Id. Benitez disputes that the evidence of alleged sexual conduct with Z.W. was relevant to

the state’s case and argues that the probative value of the evidence was outweighed by its

potential for unfair prejudice.

       The district court determined that the evidence was relevant to show a common

scheme or plan and to refute an allegation of fabrication or mistake by N.W. The supreme

court has held that Spreigl evidence may be admitted under the common-scheme-or-plan

exception “to establish that the conduct on which the charged offense was based actually

occurred or to refute the defendant’s contention that the victim’s testimony was a

fabrication or a mistake in perception.” State v. Ness, 707 N.W.2d 676, 687–88 (Minn.

2006). Other acts “must have a marked similarity in modus operandi to the charged

offense.” Id. at 688. Other acts “need not be identical in every way to the charged crime,

but must instead be sufficiently or substantially similar to the charged offense—determined

by time, place and modus operandi.” Id. (emphasis omitted) (quotation omitted).

       N.W. and Z.W. similarly described Benitez’s sexual abuse of them. N.W. testified

that Benitez “grabbed [her],” “h[e]ld down [her] underwear,” “ma[d]e sure [she] stay[ed]


                                             8
on the bed,” “put[] his private part in [her] private part,” and put his “private part . . . inside

[her] mouth.” Z.W. testified that Benitez “ripped off” Z.W.’s clothing and touched Z.W’s

“privates” and “butt.” Z.W. had drawn a picture that he explained depicted Benitez pushing

Z.W. down and Benitez and Z.W. “hump[ing] . . . naked.” Both children testified that

Benitez kissed them on the mouth and that the abuse occurred in the home and on multiple

occasions. Z.W. testified that his abuse occurred when he was between the ages of three

and seven, and N.W. testified that her abuse occurred when she was five years old. The

alleged acts of sexual abuse by Benitez were “sufficiently or substantially similar” in terms

of “time, place and modus operandi.” See id. (emphasis omitted) (quotation omitted). And

Z.W.’s testimony assisted in countering Benitez’s contention that he never engaged in

sexual conduct with the children. Cf. State v. Wermerskirchen, 497 N.W.2d 235, 242

(Minn. 1993) (stating that Spreigl evidence of defendant’s prior sexual conduct with female

child relatives “was highly relevant to the specific issue of whether the conduct on which

the charge was based actually occurred or was . . . a fabrication or a mistake in perception

by the victim” where defendant denied that sexual assault occurred). We conclude that

evidence of Benitez’s alleged sexual assault of Z.W. was admissible under the common-

scheme-or-plan exception and relevant to the state’s case.

       “When balancing the probative value against the potential prejudice, unfair

prejudice is not merely damaging evidence, even severely damaging evidence; rather,

unfair prejudice is evidence that persuades by illegitimate means, giving one party an unfair

advantage.” State v. Bell, 719 N.W.2d 635, 641 (Minn. 2006) (quotation omitted). The

supreme court has stated that evidence admitted under the common-scheme-or-plan


                                                9
exception poses a “particular risk” of causing unfair prejudice. See Ness, 707 N.W.2d at

687. But the supreme court also has “frequently said” that “the closer the relationship

between the other acts and the charged offense, in terms of time, place, or modus operandi,

the greater the relevance and probative value of the other-acts evidence and the lesser the

likelihood that the evidence will be used for an improper purpose.” Id. at 688.

       The instances of sexual abuse described by N.W. and Z.W. bear a close relationship

in terms of time, place, and modus operandi. And Z.W.’s testimony was “highly relevant”

to the state’s case to show that the charged offense occurred and that N.W.’s allegations

were not a fabrication or mistake. See Wermerskirchen, 497 N.W.2d at 242. We conclude

that the probative value of Z.W.’s testimony was not outweighed by its potential for unfair

prejudice to Benitez. The district court did not abuse its discretion by admitting evidence

of Benitez’s alleged sexual assault of Z.W. as Spreigl evidence.

                                              III.

       During the state’s closing argument, the prosecutor read and displayed a slide of a

quotation that she attributed to Nelson Mandela, stating: “[S]afety and security don’t just

happen. They are the result of collective consensus and public investment because we owe

our children, the most vulnerable citizens in our society, a life that is free of violence and

fear.” The prosecutor then stated that “[i]t is this case and cases like this that is the reason

why we have laws that protect our children.” Benitez objected to these statements. The

district court noted that the prosecutor did not read the quotation “in a grandiose manner”

or “overemphasize it” and determined that the prosecutor’s closing argument was “within

the bounds of legitimate advocacy.” Benitez argues that the prosecutor’s statements


                                              10
constituted prejudicial misconduct. We therefore consider whether there was misconduct

and whether any misconduct was harmless. See State v. Wren, 738 N.W.2d 378, 390 (Minn.

2007) (“We first address whether there was misconduct, and if so, whether it entitles Wren

to a new trial.”).

       “The determination of the propriety of a prosecutor’s closing argument is generally

within the sound discretion of the trial court.” Nunn v. State, 753 N.W.2d 657, 661 (Minn.

2008) (quotations omitted). “A prosecutor engages in prosecutorial misconduct when he

violates clear or established standards of conduct, e.g., rules, laws, orders by a district court,

or clear commands in this state’s case law.” State v. McCray, 753 N.W.2d 746, 751 (Minn.

2008) (quotation omitted). “A prosecutor is not permitted to appeal to the passions of the

jury during closing argument” and should “avoid arguments that divert the jury from its

duty to decide the case on the evidence, by injecting issues broader than the guilt or

innocence of the accused.” Nunn, 753 N.W.2d at 661–62 (quotations omitted); see also

State v. Hoppe, 641 N.W.2d 315, 320 (Minn. App. 2002) (“It is improper for a prosecutor

to urge the jury to protect society with its verdict.”), review denied (Minn. May 14, 2002).

       Here, the prosecutor appealed to the passions of the jury and injected broad societal

issues by stating that “we owe our children, the most vulnerable citizens in our society, a

life that is free of violence and fear” and that “[i]t is this case and cases like this that is the

reason why we have laws that protect our children.” These statements urged the jury to

return a guilty verdict to protect children in general rather to protect N.W., the victim in

this case. Compare Nunn, 753 N.W.2d at 661–62 (concluding that prosecutor did not

commit misconduct during closing argument by stating that defendant’s victims deserved


                                                11
protection), with State v. Friend, 385 N.W.2d 313, 322 (Minn. App. 1986) (“The

prosecution’s reference in his closing argument to the jurors as protectors of young girls is

improper.”), review denied (Minn. May 22, 1986). We conclude that the prosecutor

committed misconduct during her closing argument.

       Appellate courts have utilized a two-tiered harmless-error test when reviewing

objected-to prosecutorial misconduct. See State v. Carridine, 812 N.W.2d 130, 150 (Minn.

2012) (stating that application of test “varies based on the severity of the misconduct”). For

“unusually serious misconduct,” the appellate court “ask[s] whether the . . . misconduct

was harmless beyond a reasonable doubt,” while for “less serious . . . misconduct,” the

appellate court “ask[s] whether the misconduct likely played a substantial part in

influencing the jury to convict.” State v. Nissalke, 801 N.W.2d 82, 105 (Minn. 2011)

(quotations omitted). The supreme court has questioned, but has not decided, whether

appellate courts should continue to use this two-tiered approach. See, e.g., State v. Little,

851 N.W.2d 878, 889 n.2 (Minn. 2014) (“[I]n several cases, we have questioned the

continued viability of [the] two-tiered approach to harmless-error review of prosecutorial

misconduct.”); Carridine, 812 N.W.2d at 150 (“Whether the [two-tiered] test should

continue to apply to objected-to prosecutorial misconduct has been the subject of

discussion in some of our recent decisions.”). Recently, the supreme court has simply

applied the review for more serious misconduct. See, e.g., Carridine, 812 N.W.2d at 146

(“Because we conclude that the one instance of objected-to prosecutorial misconduct here

is harmless even under the standard for more serious misconduct, we do not reach the issue




                                             12
of the continued applicability of the [two-tiered] test to objected-to prosecutorial

misconduct.”).

       The prosecutor’s misconduct in this case was harmless error even under the standard

applied to more serious prosecutorial misconduct. Misconduct is harmless beyond a

reasonable doubt “only if the verdict rendered was surely unattributable” to the misconduct.

Nissalke, 801 N.W.2d at 105–06; see also State v. Martin, 773 N.W.2d 89, 106 (Minn.

2009) (considering strength of evidence against defendant, pervasiveness of misconduct,

and mitigation of misconduct to determine whether possible prosecutorial misconduct was

harmless beyond a reasonable doubt). N.W. consistently reported before trial and testified

at trial the Benitez put his penis in her private part and in her mouth. The prosecutor’s

improper statements were brief in the context of her entire closing argument and especially

in the context of the entire six-day jury trial. And defense counsel attempted to rebut the

improper statements during her closing argument by stating that it is important for law

enforcement and society to investigate a child’s claims of sexual abuse, but that it was the

jury’s role to decide the case based on the evidence and to determine whether the state met

its burden of proof beyond a reasonable doubt. Under these circumstances, the jury’s

verdict was surely unattributable to the prosecutor’s improper statements, and Benitez is

not entitled to a new trial due to the prosecutorial misconduct.

                                            IV.

       Benitez argues that the district court abused its discretion by imposing an upward-

departure sentence based on improper reasons. For a defendant with Benitez’s criminal-

history score of zero, the presumptive guidelines sentence for first-degree criminal sexual


                                             13
conduct is 144 months’ imprisonment, with a discretionary range of 144 to 172 months.

See Minn. Sent. Guidelines 4.B (2012). The district court granted an upward durational

departure and imposed a sentence of 344 months.

       A district court’s decision to depart from the sentencing guidelines is reviewed for

an abuse of discretion. State v. Hicks, 864 N.W.2d 153, 156 (Minn. 2015). “If the reasons

given for an upward departure are legally permissible and factually supported in the record,

the departure will be affirmed. But if the district court’s reasons for departure are improper

or inadequate, the departure will be reversed.” Id. (quotations omitted). “The court must

pronounce a sentence within the applicable range unless there exist identifiable, substantial,

and compelling circumstances to support a sentence outside the appropriate range on the

applicable Grid.” Minn. Sent. Guidelines 2.D.1 (2012). “Substantial and compelling

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.” Hicks, 864 N.W.2d at 157 (quotations omitted).

Multiple forms of penetration

       The jury found that Benitez penetrated N.W.’s genital opening and mouth with his

penis, and the district court referenced Benitez’s “multiple forms of penetration against

[N.W.]” as a basis for departure. Benitez contends that this finding was an improper basis

for departure because the guilty verdict was based on the jury’s determination that at least

one form of penetration occurred.

       “[T]he district court may not base an upward departure on facts necessary to prove

elements of the offense being sentenced.” State v. Edwards, 774 N.W.2d 596, 602 (Minn.


                                             14
2009). But the supreme court has approved of the use of a finding of multiple forms of

penetration as an aggravating factor to support a departure sentence for a sex crime. See,

e.g., Rairdon v. State, 557 N.W.2d 318, 327 (Minn. 1996) (stating that “the trial court was

justified in noting the multiple forms of sexual abuse as a basis for departure”); State v.

Dietz, 344 N.W.2d 386, 389 (Minn. 1984) (“We have indicated in a number of cases that

subjecting the victim to multiple types of penetration can be considered in determining

whether there are aggravating circumstances present justifying a durational departure . . .

.”). And we have stated that “[t]he fact that a defendant has subjected a victim to multiple

forms of penetration is a valid aggravating factor in first-degree criminal sexual conduct

cases” because “multiple forms of penetration is not ‘typical’ of the offense charged.” State

v. Adell, 755 N.W.2d 767, 774–75 (Minn. App. 2008), review denied (Minn. Nov. 25,

2008). Benitez’s argument that the finding of multiple forms of penetration was an

improper basis for departure is without merit.

Responsibility to care for N.W.

       The jury found that Benitez was “acting in the place of a parent at the time of the

act” and had “responsibility for the health, welfare or supervision of [N.W.], no matter how

brief, at the time of the act.” The district court referenced the fact that Benitez was

“supposed to be caring for [N.W.] and instead [he] sexually abused her” as a basis for

departure. “Abuse of positions of trust and authority are aggravating factors justifying a

durational departure.” State v. Carpenter, 459 N.W.2d 121, 128 (Minn. 1990).

       “A departure cannot be based on uncharged criminal conduct.” State v. Jackson, 749

N.W.2d 353, 357 (Minn. 2008). Benitez was convicted of first-degree criminal sexual


                                             15
conduct under Minn. Stat. § 609.342, subd. 1(a) (2012), a version of first-degree criminal

sexual conduct where “the complainant is under 13 years of age and the actor is more than

36 months older than the complainant.” Benitez argues that his responsibility to care for

N.W. was an improper basis for departure because he could have been charged with a

version of first-degree criminal sexual conduct involving a significant relationship with the

victim.3 See Minn. Stat. § 609.342, subd. 1(g), (h) (2012) (defining versions of first-degree

criminal sexual conduct where “the actor has a significant relationship to the complainant”

and “the complainant was under 16 years of age at the time of the sexual penetration”); see

also Minn. Stat. § 609.341, subd. 15 (2012) (defining “[s]ignificant relationship” to include

“the complainant’s parent, stepparent, or guardian” and “an adult who jointly resides

intermittently or regularly in the same dwelling as the complainant and who is not the

complainant’s spouse” (quotation marks omitted)).

       The supreme court recently addressed the rule articulated in Jackson that “a

departure cannot be based on uncharged criminal conduct.” Hicks, 864 N.W.2d at 161–62

(quotation omitted). The supreme court clarified that, in Jackson, “[it] w[as] . . . concerned

with the possibility that the sentencing guidelines could be manipulated by bringing lesser

charges than the facts permitted in order to obtain a longer sentence by withholding some

facts related to greater charges to use as an aggravating factor at sentencing.” Id.; see


3
  Benitez also seems to suggest that he could have been charged with a version of first-
degree criminal sexual conduct involving a position of authority over the victim under
Minn. Stat. § 609.342, subd. 1(b) (2012). Section 609.342, subdivision 1(b), requires that
“the complainant [be] at least 13 years of age but less than 16 years of age.” N.W. was
under 13 years of age when the offense occurred, so Benitez could not have been charged
under section 609.342, subdivision 1(b).

                                             16
Jackson, 749 N.W.2d at 358 (observing that “the guidelines do not contemplate enhanced

sentences based on uncharged criminal conduct that would be far greater than what would

otherwise be permitted based on charged criminal conduct”). Responding to Hicks’s

argument that “concealment of a murder victim’s body cannot be an aggravating factor

because it constitutes the uncharged offense of interfering with a dead body,” the supreme

court distinguished Jackson and stated that Hicks had not been undercharged and that there

was no concern of sentencing manipulation by the state. Hicks, 864 N.W.2d at 161–62. The

court concluded that “the facts of concealing a homicide victim’s body are available for

departure in appropriate cases” and affirmed the district court’s upward durational

departure. Id. at 162–63.

       Similarly, this case raises no concern of undercharging or sentencing manipulation.

The state charged Benitez with the most serious degree of criminal sexual conduct.

Benitez’s responsibility to care for N.W. was a proper basis for departure. Because the

district court’s reasons for departure “are legally permissible and factually supported in the

record,” the district court did not abuse its discretion by imposing the upward departure

sentence. See id. at 156 (quotation omitted).

                                             V.

       Benitez filed a pro se supplemental brief in which he maintains his innocence. When

reviewing the sufficiency of the evidence for a conviction, an appellate court “view[s] the

evidence in a light most favorable to the verdict to determine whether the facts in the record

and the legitimate inferences drawn from them would permit the jury to reasonably

conclude that the defendant was guilty beyond a reasonable doubt.” State v. Salyers, 858


                                             17
N.W.2d 156, 160 (Minn. 2015) (quotations omitted). Benitez was convicted under Minn.

Stat. § 609.342, subd. 1(a), which defines first-degree criminal sexual conduct as

“engag[ing] in sexual penetration with another person, or in sexual contact with a person

under 13 years of age,” if “the complainant is under 13 years of age and the actor is more

than 36 months older than the complainant.” N.W. testified that, when she was five years

old, Benitez “put[] his private part in [her] private part” and put his “private part . . . inside

[her] mouth.” We leave determinations of witness credibility to the jury and assume that

the jury believed N.W. and disbelieved any contrary evidence. See Gulbertson v. State, 843

N.W.2d 240, 245–46 (Minn. 2014). The evidence presented at trial was sufficient for the

jury to find Benitez guilty of first-degree criminal sexual conduct.

       Benitez also appears to argue in his pro se brief that M.M. should have been called

to testify and that some “letters regarding [his] conduct” should have been admitted into

evidence. What evidence to present to a jury and what witnesses to call are decisions of

trial strategy that we decline to review. See Carridine v. State, 867 N.W.2d 488, 494 (Minn.

2015) (discussing unreviewable nature of trial strategy in context of claim of ineffective

assistance of trial counsel).

       Affirmed.




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