This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).







State of Minnesota,





Moises NMN Rodriguez-Martinez,




Filed May 13, 2003

Affirmed in part, reversed in part, and remanded
Forsberg, Judge


Hennepin County District Court

File No. 01085040



Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and


Amy Klobuchar, Hennepin County Attorney, Michael Richardson, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)


John M. Stuart, State Public Defender, Sara L. Martin, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)


            Considered and decided by Hudson, Presiding Judge, Minge, Judge, and Forsberg, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant argues that (1) the evidence was insufficient as a matter of law to convict him for one count of kidnapping in violation of Minn. Stat. § 609.25, subd. 1(2) (2000); (2) the district court abused its discretion by not allowing him to introduce certain evidence through his own testimony; (3) the district court erred by failing to make specific, written findings of fact in accordance with Minn. R. Crim. P. 26.01, subd. 2; (4) the district court abused its discretion in determining that his statements to the police were admissible; and (5) the district court abused its discretion by denying his request for a downward dispositional departure.  We affirm the conviction but reverse the sentence and remand.


            Appellant Moises Rodriguez-Martinez, who came to the United States from Mexico in 2001, met C.B., a 14-year-old girl, at the church they both attended in Nashville, Tennessee.  Appellant, who was 20 years old, began dating C.B. in September 2001.   

            Later in September 2001, appellant began making arrangements to move to Minneapolis to live with his brother and informed C.B. that he would be leaving.  After some discussions and prayer in early October, appellant and C.B. decided that C.B. would accompany appellant to Minneapolis.  The two, who had not engaged in any sexual conduct up to that point, decided that they would live together until C.B. was old enough to marry appellant. 

            Appellant paid a friend to drive himself and C.B. to Minneapolis.  Appellant and the friend picked up C.B. at her house at the time she normally left to wait for the school bus.  C.B. did not tell her mother that she was leaving because she knew she would not be allowed to go.  Hoping to throw people off track as to their true whereabouts, they left C.B.’s mother a note saying they went to California.   

            C.B. and appellant engaged in sexual conduct soon after they arrived in Minneapolis. 

            While looking for C.B. in Tennessee, C.B.’s mother discovered that they had left for Minneapolis.  C.B.’s mother then traveled to Minneapolis and talked to Minneapolis police who found C.B. at the apartment where she and appellant were staying.  Appellant was arrested and taken into custody for questioning after DNA tests confirmed that C.B. and appellant had engaged in sexual intercourse. 

            Sergeant Swalve conducted the interrogation but soon realized that appellant needed an interpreter; the interrogation was delayed until the following day.  When an interpreter arrived, appellant was read his Miranda rights.  Appellant stated that he understood his rights and that he waived those rights, and then gave his statement.  After the statement, the sergeant, believing appellant would be charged with a crime, notified the Mexican consulate of appellant’s custody status.  About a month later appellant talked to the Mexican consulate and was informed that his rights would be protected. 

            A complaint was filed charging appellant with two counts of third-degree criminal sexual conduct in violation of Minn. Stat. § 609.344, subd. 1(b) (2000), and one count of kidnapping in violation of Minn. Stat. § 609.25, subd. 1(2) (2000).  Appellant waived his right to a jury trial, and a bench trial occurred on February 7 and 8, 2002.  The district court found appellant guilty on all three counts.

            Appellant moved for a downward dispositional departure.  The district court denied appellant’s motion and imposed the presumptive executed sentence.  Appellant was given a 36-month sentence for the kidnapping offense and concurrent sentences of 18 and 23 months for the criminal sexual conduct offenses.  This appeal followed.




When reviewing a sufficiency of the evidence claim, this court carefully reviews whether the record and any legitimate inferences drawn from it reasonably support the fact-finder’s conclusion that the defendant committed the offense charged.  State v. Ulvinen, 313 N.W.2d 425, 428 (Minn. 1981).  On appeal, the sufficiency of the evidence is viewed in a light most favorable to the conviction.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  This court assumes the trier of fact believed the state’s witnesses and disbelieved any contradictory evidence.  State v. Parker, 353 N.W.2d 122, 127 (Minn. 1984).  Where the facts and legitimate inferences drawn from the facts could reasonably lead the fact-finder to conclude that a defendant is guilty, the conviction should not be disturbed.  State v. Ring, 554 N.W.2d 758, 760 (Minn. App. 1996). 

Appellant argues that the state did not prove every element of the kidnapping offense beyond a reasonable doubt.  Minn. Stat. § 609.25, subd. 1(2) (2000), defines that offense as follows:

            Whoever, for any of the following purposes, confines or removes from one place to another, any person without the person’s consent or, if the person is under the age of 16 years, without the consent of the person’s parents or other legal custodian, is guilty of kidnapping and may be sentenced as provided in subdivision 2:


            * * * *


            (2)  To facilitate commission of any felony or flight thereafter  * * *.


Appellant contends that the state did not prove that he “removed” C.B. from Tennessee or that he removed her “for the purpose of committing a felony.” 

Appellant argues that he did not “remove” C.B. from Tennessee because she was a willing participant in the trip to Minnesota and, thus, C.B. removed herself from Tennessee.  But the fact that C.B. willingly left with appellant does not excuse him from criminal liability.  C.B. was under the age of 16, and according to the plain language of the statute, when a person is under the age of 16 it is the consent of the parent that is relevant, not the consent of the person removed.  No parental consent was given in this case.  Thus, the fact that C.B. willingly traveled with appellant to Minneapolis has no legal significance. 

Appellant next contends that the state did not prove beyond a reasonable doubt that he removed C.B. from Tennessee for the purpose of committing a felony.  In the context of kidnapping, “purpose” is akin to “intent.”  See Minn. Stat. Ann. § 609.25 advisory comm. cmt. (West 1987) (noting that kidnapping consists of elements of confinement and intent and that intent is what “makes the imprisonment the serious crime known as kidnapping”).  Appellant testified that his intent in coming to Minnesota was to find work, and he argues that there is no evidence in the record that shows he came to Minnesota for the purpose of engaging in sexual conduct with C.B.  Thus, appellant argues that he only formed the intent to have sex with C.B. after their arrival in Minnesota.

Even if appellant actually left Tennessee to get a job in Minnesota, he did not “remove” C.B. from Tennessee for the purpose of obtaining employment.  Appellant could have obtained employment without bringing C.B. with him.  Instead, the testimony elicited at trial established that appellant “removed” C.B. from Tennessee so that the two of them could stay together in appellant’s brother’s apartment in Minneapolis, and that intent was formed before the couple left Tennessee.  On cross-examination, appellant was asked if he and C.B. intended to live together in Minneapolis.  Appellant answered yes.  Appellant was then asked if he intended to live with C.B. until she was old enough to get married.  Again, appellant answered yes.  Appellant was next asked if he intended to have sex with C.B. while he lived with her.  Appellant answered yes.  Thus, based on his own testimony, 20-year-old appellant intended to commit a felony when he removed 14-year-old C.B. from Tennessee with the intent to engage in sexual penetration, in violation of Minn. Stat. § 609.344, subd. 1(b).  Hope for a job may have factored into appellant’s decision to go to Minnesota, but the trial testimony shows that when appellant “removed” C.B. from Tennessee, appellant intended to have sex with her when they arrived in Minnesota.

Viewing the evidence in the light most favorable to the conviction, sufficient evidence exists to support the kidnapping conviction. 


            “[E]very criminal defendant has the right to be treated with fundamental fairness and ‘afforded a meaningful opportunity to present a complete defense.’”  State v. Richards, 495 N.W.2d 187, 191 (Minn. 1992) (quotation omitted).  “[I]t cannot be doubted that a defendant in a criminal case has the right to take the witness stand and to testify in his or her own defense.”  Rock v. Arkansas, 483 U.S. 44, 49, 107 S. Ct. 2704, 2708 (1987). The due process clauses of the Fourteenth Amendment of the United States Constitution and Article I, section 7, of the Minnesota Constitution require no less.  Richards, 495 N.W.2d at 191.  But, “the accused ‘must comply with established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence.’”  Id. at 195 (quotation omitted).  Thus, even when a party alleges a violation of his constitutional rights, evidentiary questions are reviewed for abuse of discretion.  State v. Gustafson, 379 N.W.2d 81, 84 (Minn. 1985).  If an evidentiary ruling led to the violation of a party’s constitutional right and if the error was not harmless beyond a reasonable doubt, then the conviction should be reversed.  In re Welfare of M.P.Y., 630 N.W.2d 411, 415 (Minn. 2001).  But reversal is not appropriate when a reasonable jury would have reached the same verdict even if the evidence had been admitted and its potential fully realized.  State v. Post, 512 N.W.2d 99, 102 (Minn. 1994).

            Appellant claims that if the state proved every element of the kidnapping offense beyond a reasonable doubt, it was only because the district court prevented appellant from fully exercising his constitutional right to testify in his own defense.  Appellant was not allowed to introduce evidence through his own testimony (1) about his cultural background and how it was common for men of appellant’s age in Chiapas, Mexico, to have relationships with girls of C.B.’s age; (2) that he did not know he was doing anything illegal; and (3) about his opportunities to have sex with C.B. while they were in Tennessee.  The district court ruled that such testimony was irrelevant.  Appellant contends that such testimony was relevant to establish his intent, motive, and state of mind.  Appellant argues that by not allowing such testimony, the district court prevented him from being able to rebut the state’s claim that he removed C.B. from Tennessee for the purpose of committing a felony.

            As established in State v. Brechon, 352 N.W.2d 745, 751 (Minn. 1984), criminal defendants have a due process right to explain their conduct to the jury, whether or not their motives constitute a valid defense.  A defendant’s constitutional right to provide testimony regarding intent and motivation is very broad.  State v. Buchanan, 431 N.W.2d 542, 550 (Minn. 1988).  While the district court may impose reasonable limits on the testimony of each defendant, courts must be mindful of the need to scrutinize with the greatest care any restrictions placed on a defendant’s testimony offered as to his intent and the motivation underlying that intent so as not to jeopardize the defendant’s federal and state constitutional right to a fair trial.  State v. Rein 477 N.W.2d 716, 719-20 (Minn. App. 1991).

            But a defendant’s right to testify as to intent or motive is not without limitation, and such testimony must be balanced against interests served by imposing strict relevancy requirements on the defendant's testimony.  Rock, 483 U.S. at 55-56, 107 S. Ct. at 2711.  As to appellant’s testimony concerning his cultural background and his belief that his conduct was legal, that testimony was irrelevant to appellant’s bench trial.  In order to convict appellant of kidnapping, the state needed to prove beyond a reasonable doubt that when appellant removed C.B. from Tennessee, he did so for the purpose or with the intent of having sex with her in Minnesota.  Appellant’s cultural background and the fact that he believed his conduct was legal were not relevant to his defense in any way.  Such testimony would have done nothing to show that appellant did not have the purpose or the intent to have sex with C.B. when he removed her from Tennessee. 

But the district court abused its discretion by ruling that appellant’s testimony as to his opportunities to have sex with C.B. in Tennessee was irrelevant.  Such testimony would have been relevant to appellant’s intent or state of mind.  It tends to show that appellant did not intend to have sex with C.B. when he removed her from Tennessee because appellant never before tried to have sex with C.B.  Therefore, the testimony would have provided circumstantial evidence that the intent to have sex with C.B. was formed only after they arrived in Minnesota.

            Even though the district court abused its discretion by ruling that the testimony was irrelevant, the resulting error was harmless.  The federal harmless error constitutional doctrine applies in Minnesota.  State v. Robinson, 427 N.W.2d 217, 224 (Minn. 1988).  And in this case, the verdict actually rendered by the district court was surely unattributable to the error.  Prior to appellant taking the stand, C.B. testified about her relationship with appellant.  C.B. testified that she and appellant had private time together and that if they had wanted to have sex in Tennessee, they could have done so because the opportunities were there.

Therefore, based on C.B.’s earlier testimony, appellant’s testimony would have been cumulative.  The district court heard previous testimony regarding appellant’s opportunities to have sex with C.B. while the two were in Tennessee.  Because that testimony had already been allowed, the error in excluding appellant’s testimony was harmless beyond a reasonable doubt.


            Appellant claims the district court erred in failing to make written findings of fact.

In a case tried without a jury, * * * [t]he court, within 7 days after the general finding in felony * * * cases, shall in addition specifically find the essential facts in writing on the record. * * * If an opinion or memorandum of decision is filed, it is sufficient if the findings of fact appear therein.


Minn. R. Crim. P. 26.01, subd. 2.

            The purpose of written findings is to aid the appellate court in its review of a conviction resulting from a nonjury trial.  But the findings do not necessarily have to be written.  It is sufficient if the findings are “gleaned from comments from the bench” as long as those comments afford a basis for intelligent appellate review.  State v. Scarver, 458 N.W.2d 167, 168 (Minn. App. 1990) (quotation omitted). 

            Here, the district court’s oral findings contain facts upon which this court can conduct a meaningful review.  The district court outlined the elements of the kidnapping charge and explained how the state met its burden in regard to each element. 

            Based on the court’s oral findings contained in the record, it is not necessary to remand this matter to the district court for written findings.


Appellate courts largely defer to the district court’s evidentiary rulings, which will not be overturned absent a clear abuse of discretion.  State v. Kelly, 435 N.W.2d 807, 813 (Minn. 1989). Appellant argues that his rights were violated when the police failed to notify him of his right as a Mexican national to communicate with a consular post of Mexico under the Vienna Convention on Consular Relations.  Because of this violation, appellant contends that his statements to the police should have been suppressed at trial.

            The Vienna Convention, as ratified by the United States and Mexico, states:

[I]f [the arrestee] so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall also be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this sub-paragraph.


Ademodi v. State, 616 N.W.2d 716, 718 n.3 (Minn. 2000) (quoting Vienna Convention on Consular Relations, Apr. 24, 1963, art. 36, para. 1(b), 21 U.S.T. 77, 100-01).

            This court has determined that suppression is an appropriate remedy for a violation of the Vienna Convention if a defendant can prove that he was prejudiced by the violation.  State v. Miranda, 622 N.W.2d 353, 356 (Minn. App. 2001).  Here, suppression is not an appropriate remedy because appellant has not met his burden of proof in showing that he was prejudiced by the violation. 

            At trial, appellant testified that had he been informed of his right to speak to a Mexican consul before the interrogation began, he would not have spoken to the police.  Therefore, appellant claims the violation was prejudicial for that reason. 

            But there is no evidence in the record that supports appellant’s claim of prejudice.  Prior to the interrogation, the officer obtained an interpreter to aid appellant in understanding the process.  Once the interpreter arrived, appellant was read his Miranda rights.  Appellant stated that he understood those rights and that he waived them.  Thus, appellant was well aware of the fact that he did not have to talk to police.  Moreover, when appellant talked with a consul, he was not instructed to remain silent.  The consul merely informed appellant that his rights would be respected.  Therefore, there is no evidence that the consul would have advised appellant not to talk to the police.  As the district court noted, appellant failed to demonstrate “that assistance from the Mexican consul would have resulted in a different, more beneficial outcome.”

            Because there is no evidence in the record to support appellant’s claim of prejudice, and because appellant has the burden of establishing prejudice, the district court did not abuse its discretion in determining that appellant’s statements to the police were admissible. 


            The decision whether to depart from the sentencing guidelines rests within the discretion of the district court and will not be disturbed absent a clear abuse of that discretion.  State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996).  Only in a “rare case” would a sentencing court’s refusal to depart warrant reversal.  State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981).

            A district court may order a downward departure from the presumptive sentence if “substantial grounds exist which tend to excuse or mitigate the offender’s culpability,” even if those grounds do not amount to a defense.  Minn. Sent. Guidelines II.D.2.a; State v. Hennum, 441 N.W.2d 793, 801 (Minn. 1989), (supreme court reversed district court’s presumptive sentence because substantial grounds existed which mitigated defendant’s culpability).  In this case, while the district court properly disallowed evidence concerning appellant’s cultural background during the bench trial, such social and cultural factors should have been considered by the district court for sentencing purposes.  See State v. King, 337 N.W.2d 675, 676 (Minn. 1983).  Because of appellant’s cultural background, he did not knowingly violate the law.  In Mexico, when appellant was 16 years old, he began having sex with his ex-wife when she was only 15 years old.  Such relationships are common where appellant lived and, consequently, he did now know that he was committing a crime by having consensual sexual contact with C.B.  While such cultural factors may not provide a valid defense for appellant’s crimes, such factors may provide sufficient mitigating circumstances to warrant a downward departure.

            Moreover, when considering whether sufficient mitigating circumstances are present to warrant a departure, a court must consider whether the conduct was “significantly more or less serious than that typically involved in the commission of the crime in question.”  State v. Spain, 590 N.W.2d 85, 88-89 (Minn. 1999) (quotation omitted).  Here, appellant’s conduct was significantly less serious than that typically involved in the commission of the crimes in question because appellant did not use force or violence in the commission of the crimes.  C.B. willingly came with appellant to Minnesota and she willingly engaged in sexual conduct with appellant.   

            Further, a court may depart dispositionally when an offender is amenable to probation.  State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982).  In determining whether a defendant is amenable to probation, and thus eligible for a downward dispositional departure, other factors that may be considered include the offender’s age, his prior record, his remorse, his cooperation, his attitude while in court, and the support of friends and/or family.  Id

            In this case, the record establishes that appellant is amenable to probation.  Appellant was only 20 years old at the time of the offenses and had no prior criminal record.  Appellant did not know he violated the law, and the record shows that he is remorseful for his actions.  Appellant cooperated with the investigation, willingly spoke to the police, and confessed to what he did.  All of these factors led Alpha Human Services to conclude in its sex-offender evaluation that appellant was not a predatory offender and was a suitable candidate for outpatient treatment in its community-based program. 

            Because of appellant’s cultural background, the non-violent nature of his conduct, and appellant’s amenability to probation, the present case may qualify as one of those rare cases in which we are justified in interfering with the district court’s decision against downward departure.  Accordingly, execution of appellant’s sentences for kidnapping and criminal sexual conduct is stayed, and the matter is remanded to the district court to reconsider appellant’s sentence.

            Affirmed in part, reversed in part, and remanded.



* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.