This opinion will be unpublished and

may not be cited except as provided by

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







State of Minnesota,





Juan Jesus Martinez,




Filed August 10, 2004


Halbrooks, Judge

Concurring specially, Harten, Judge


Steele County District Court

File No. K6-02-1126



Mike Hatch, Attorney General, James B. Early, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101; and


Douglas L. Ruth, Steele County Attorney, 303 South Cedar, Owatonna, MN 55060 (for respondent)


John M. Stuart, State Public Defender, Lydia Villalva Lijo, Assistant Public Defender, 2221 University Avenue SE, Suite 425, Minneapolis, MN 55414 (for appellant)


            Considered and decided by Minge, Presiding Judge, Harten, Judge, and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant challenges his conviction of second-degree assault on two grounds:  (1) that the evidence is insufficient to support the conviction; and (2) that the prosecutor committed prejudicial misconduct during closing argument by belittling appellant’s explanation, improperly shifting the burden of proof, introducing evidence outside the record, and inflaming the passions and prejudices of the jury.  We affirm.   


            On September 4, 2002, appellant Juan Jesus Martinez was working at the Wendy’s restaurant in Owatonna with his manager, Robert Rodriguez, and with several coworkers, including K.W.  According to K.W., at approximately 9:00 p.m., as she watched Rodriguez hand an order to a customer, appellant came up behind her and grabbed her.  K.W. explained that appellant placed his arm across her shoulder, holding her tightly against him, and held a sharp object to her throat.  This object was a “five-in-one tool” used to scrape gum off the floor and to cut boxes.  Appellant then whispered something that K.W. did not understand.  K.W. testified that she told appellant to “get off” her three times, but instead of complying, he pulled her tighter.  K.W. stated that she was scared because she could not move and appellant refused to let her go.  K.W. also stated that she could feel the serrated edge of the blade poking her neck during the incident.

When Rodriguez saw what was happening, he intervened.  Rodriguez asked appellant what he was doing, but appellant did not respond.  According to both Rodriguez and K.W., Rodriguez then put his fingers between the blade and K.W.’s throat, twisting appellant’s arm until he let go.  Rodriguez testified that this required a lot of force and that he would likely have broken appellant’s arm if appellant had not let go.  Both Rodriguez and K.W. testified that no one was laughing or joking during the incident.  Rodriguez then told appellant to leave, explaining to him that he was suspended and could be arrested and fired.  Rodriguez subsequently contacted the police, the general manager, and K.W.’s parents.  Both K.W. and Rodriguez observed a red mark on K.W.’s throat after the incident, but she did not seek medical attention. 

Shortly thereafter, Officer Andrew DeVinny of the Owatonna Police Department responded to the scene.  Officer DeVinny testified that he saw a light pink area on K.W.’s neck and that K.W. told him she was still experiencing some soreness due to the amount of pressure that appellant had applied.  Officer DeVinny took statements from Rodriguez and K.W. and then sent another officer to locate appellant.  Appellant was later apprehended and taken into custody.

After waiving his Miranda rights, appellant agreed to give a videotaped statement to Officer DeVinny.  When asked if he knew why he was arrested, appellant stated that he was accused of “a sexual aggression.”  When the officer clarified that he had been arrested for second-degree assault, appellant stated, “I did understand that it was an aggression.  However, I thought that it was a sexual [aggression].”  Appellant then explained his side of the story, stating:

What happened is that that particular tool was laying by the area where we cut the bread for the sandwiches; and [K.W.], the girl, grabbed it and just joking . . . placed it on my back[1] . . . I didn’t take it . . . seriously . . . .


However, when she went to the corner and she was with her back placed to me, then I took it, and I placed it, but it wasn’t next to her neck.  It was a ways from it, going to the side . . . and I placed it around her neck, but not close to it, within a distance.


So then at that particular point, the client came, and I went to the area where you package the food and hand it to the customer.  And immediately after the supervisor, who had been watching the whole thing, in fact, he was also playing with the rest of the crew, . . . went to his office, and then he called me to his office and said, You cannot do those things here.  But the girl didn’t take . . . offense.  She just kept on joking and laughing. 


            Appellant’s testimony at trial was consistent with this statement.  Appellant stated that he and K.W. were just joking around and that he was holding the tool approximately 30 centimeters away from her.  According to appellant, he then asked K.W. in Spanish “if she was going to use [the tool] or if it should be put away because it shouldn’t have been in that spot.”  Appellant stated that K.W. was laughing and that he gave the tool to Rodriguez as soon as he asked for it.  Appellant denied trying to scare or threaten K.W. and denied that Rodriguez grabbed or twisted his arm. 

            At the conclusion of the evidence, the jury convicted appellant of second-degree assault in violation of Minn. Stat. § 609.222, subd. 1 (2002), and fifth-degree assault in violation of Minn. Stat. § 609.224, subd. 1 (2002).  Appellant received the presumptive 21-month sentence, with jail credit for 226 days, and supervised release.  This appeal follows.



            Appellant argues that the evidence is insufficient to support his conviction of second-degree assault.  “[T]he standard for overturning a conviction for insufficiency of the evidence is a high one.”  State v. Huss, 506 N.W.2d 290, 292 (Minn. 1993).  When reviewing a claim of insufficient evidence, we review the record to determine whether the evidence, viewed most favorably to support a finding of guilt, was sufficient to permit the jury to reach the conclusion that it did.  State v. Martin, 293 N.W.2d 54, 55 (Minn. 1980).  This court assumes that the jury “believed the state’s witnesses and disbelieved any evidence to the contrary.”  State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).  Evidence is sufficient to support a conviction if, given the facts in the record and the legitimate inferences drawn from those facts, a jury could reasonably conclude that the defendant committed the crime charged.  State v. Wilson, 535 N.W.2d 597, 605 (Minn. 1995). 

Second-degree assault is defined as assault with a dangerous weapon.  Minn. Stat. § 609.222, subd. 1 (2002).  “Assault” is defined as “(1) An act done with intent to cause fear in another of immediate bodily harm or death; or (2) The intentional infliction of or attempt to inflict bodily harm upon another.”  Minn. Stat. § 609.02, subd. 10 (2002).  A dangerous weapon includes “any device designed as a weapon and capable of producing death or great bodily harm . . . or [any] other device or instrumentality that, in the manner it is used or intended to be used, is calculated or likely to produce death or great bodily harm.”  Minn. Stat. § 609.02, subd. 6 (2002).

Here, the evidence is sufficient to support appellant’s conviction.  At trial, K.W. consistently testified that appellant “came up from behind [her] and grabbed [her] . . . and held something sharp to [her] throat.”  K.W. testified that appellant held the “curved” side of the tool to her neck, which felt like a “sharp metal blade,” and stated that she could “feel the serrated edge of the blade poking [her].”  K.W. also explained that during the incident, appellant’s “hand was . . . holding [her] shoulder back and [her] body towards his, and then his other hand was across [her] shoulder, and the object was right . . . up against [her] neck.”  K.W. testified that she felt that if she tried to move, she would have been cut.  K.W. stated:

I just stood still.  I froze there because he wouldn’t let me go, and I told him to get off me, and he pulled me tighter and pulled the thing tighter towards my throat, and I told him to get off me again, and he didn’t.  And I told him to get off me the third, last time, and he still wouldn’t, and he kept pulling it tighter.


K.W. also stated that she was “scared because he wouldn’t let me go, and I didn’t know what he was doing because he was using a lot of force to hold me there.  I couldn’t move.” 

            Furthermore, K.W. testified that when Rodriguez intervened, he told appellant to “get off” her approximately two or three times, but appellant did not comply.  K.W. then stated that when appellant would not willingly give Rodriguez the tool, Rodriguez “grabbed [appellant’s] arm . . . and pulled his arm away and took the tool and told [appellant] to leave.”  K.W. also testified that she was “really scared” and that after the incident, there was a “red mark” on her neck and her neck was “sore.”

Although K.W.’s testimony alone is sufficient to support the conviction, Rodriguez also corroborated her version of the incident.  Rodriguez stated that he saw appellant grab K.W. and hold the sharp side of the blade against her throat.  According to Rodriguez, K.W. looked “scared” and, because of the way appellant was holding her, she could not move.  Rodriguez testified that he told appellant to let K.W. go, but he would not.  Consequently, Rodriguez testified that he “put [his] fingers between the blade of the [tool] and [K.W.’s] throat, and [then] twisted [appellant’s] arm to let go, and he still didn’t want to, so he kind of resisted, so [Rodriguez] did it harder, and that’s when [appellant] let go.”  Rodriguez stated that this required a lot of force and stated that if appellant had not let go, he would likely have broken appellant’s arm.  Furthermore, both Rodriguez and Officer DeVinny testified they observed a red mark on K.W.’s neck after the incident, demonstrating that the blade was being forcefully held against K.W.’s throat.

Essentially, appellant is asking this court to accept his version of the facts and to reject the testimony of K.W. and Rodriguez.  But it is the exclusive function of the jury to weigh the credibility of witnesses, State v. Pieschke, 295 N.W.2d 580, 584 (Minn. 1980), and we assume the jury “believed the state’s witnesses and disbelieved any evidence to the contrary.”  Moore, 438 N.W.2d at 108.  Viewing the evidence in a light most favorable to the conviction, see Martin, 293 N.W.2d at 55, the facts in the record and the legitimate inferences drawn from those facts demonstrate that the jury could reasonably conclude that appellant committed the crime of second-degree assault.  See Wilson, 535 N.W.2d at 605.   


            Appellant also argues that he is entitled to a new trial because the prosecutor committed serious misconduct during closing argument.  Specifically, appellant contends that the prosecutor (1) belittled appellant’s explanation by describing it as “pathetic,” (2) shifted the burden of proof to the defense, (3) introduced evidence outside the record, and (4) inflamed the passions and prejudices of the jury. 

Generally, the harmless-error standard for serious prosecutorial misconduct is whether the misconduct is harmless beyond a reasonable doubt, so that the verdict rendered was surely unattributable to the error.  State v. Hunt, 615 N.W.2d 294, 302 (Minn. 2000).  But appellant failed to object to any of the alleged misconduct at trial.  Although the failure to object ordinarily forfeits the right to review, “a defendant may obtain appellate review of and relief from plain errors affecting substantial rights if those errors had the effect of depriving the defendant of a fair trial.”  Rairdon v. State, 557 N.W.2d 318, 323 (Minn. 1996).  Under this so-called “plain error” standard, “before an appellate court reviews an unobjected-to error, there must be (1) error; (2) that is plain; and (3) the error must affect substantial rights.”  State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998).  We may reverse on the basis of plain error “if failure to reverse would perpetuate a substantial and essential injustice in the sense that as a result an innocent man may have been convicted.”  State v. Malaski, 330 N.W.2d 447, 451 (Minn. 1983) (quotation omitted); see also State v. Cross, 577 N.W.2d 721, 726 (Minn. 1998).  In other words, “the trial error must have been so clear under applicable law at the time of conviction, and so prejudicial to the defendant’s right to a fair trial, that the defendant’s failure to object – and thereby present the trial court with an opportunity to avoid prejudice – should not forfeit his right to a remedy.”  Rairdon, 557 N.W.2d at 323.  In determining whether the state committed misconduct warranting a new trial, we look to the closing argument as a whole, rather than to selected phrases and remarks.  State v. Walsh, 495 N.W.2d 602, 607 (Minn. 1993).  A defendant’s failure to object implies that the comments were not prejudicial.  State v. Whittaker, 568 N.W.2d 440, 450 (Minn. 1997).

A.        Has appellant established that plain error occurred? 

Appellant argues that the prosecutor improperly belittled his explanation by describing it as “pathetic.”  In closing argument, the prosecutor stated:

Remember how [K.W.] testified that she was afraid to move or risk having her throat cut.  It sounds like she was afraid of immediate bodily harm or death; doesn’t it?  Did defendant intentionally cause her to fear death or injury?  I submit to you that all the evidence shows that he did.


Despite his pathetic attempt to describe this incident as a joke to Officer DeVinney on the videotape, all the evidence indicates otherwise.  If this was a joke, why wasn’t he laughing?  If this was a joke, why did he whisper something to her in language she doesn’t understand?  If this was a joke, why did [Rodriguez] have to twist his arm to get the tool away?  If this was a joke, why didn’t he say that to [Rodriguez] when he hauled him into the back office after the assault?  No one was laughing during this incident or afterwards.  This was no joke.  This was assault. 


Appellant also contends that the state improperly shifted the burden of proof to the defense with this statement.

While it is a close call, we agree with appellant that by describing appellant’s explanation as “pathetic,” the prosecutor indicated to the jury that she believed appellant’s testimony was false.  A prosecutor cannot express to the jury his or her personal opinion or belief regarding whether a witness’s testimony is true or false.  State v. Salitros, 499 N.W.2d 815, 817 (Minn. 1993).  Furthermore, while the prosecutor is free to argue that there is no merit to a particular defense or argument, the prosecutor may not generally “belittle a particular defense in the abstract.”  State v. Ashby, 567 N.W.2d 21, 28 (Minn. 1997).  Consequently, although the error is minor when viewed in the context of the entire summation, we conclude that the prosecutor’s statement constitutes plain error.  See State v. Hoppe, 641 N.W.2d 315, 321 (Minn. App. 2002) (concluding that the prosecutor committed misconduct by disparaging the defense via his reference to the defense’s argument as “ridiculous” and telling the jury not to be “snowed” by the defense), review denied (Minn. May 14, 2002).

But we reject appellant’s remaining arguments, as none of the other alleged misconduct constitutes plain error.  First, the prosecutor did not improperly shift the burden of proof.  The supreme court has held that under certain circumstances, a remark by a prosecutor on the lack of evidence regarding the defense theory does not shift the burden of proof to the defense.  State v. Gassler, 505 N.W.2d 62, 69 (Minn. 1993); State v. Race, 383 N.W.2d 656, 664 (Minn. 1986).  Furthermore, a prosecutor may properly argue that the defendant’s testimony did not create a reasonable doubt.  See State v. Dodis, 314 N.W.2d 233, 237 (Minn. 1982) (stating that it is for the jury to determine whether the defendant has submitted sufficient evidence to create a reasonable doubt of defendant’s guilt).

Here, the prosecutor explicitly acknowledged her burden of proof, stating, “The State is required to prove each element of each offense beyond a reasonable doubt,” and the prosecutor never commented on appellant’s failure to call witnesses or to contradict testimony.  See State v. Porter, 526 N.W.2d 359, 365 (Minn. 1995) (stating that such conduct is improper).  Instead, the prosecutor simply argued that the facts in evidence were more consistent with the state’s theory than with appellant’s theory, which is not improper.  Furthermore, even if the jury perceived the prosecutor’s remarks to shift the burden of proof to the defendant, the district court removed any prejudice by correctly instructing the jury on the burden of proof and reminding the jury of its obligation to apply the law as given by the court.  We presume that the jury followed the district court’s instructions.  State v. Taylor, 650 N.W.2d 190, 207 (Minn. 2002).  Therefore, we conclude there is no evidence of plain error with regard to the burden of proof. 

Second, the prosecutor did not urge the jury to consider evidence outside the record.  Appellant challenges the italicized portions of the following statement:

Nobody saw the defendant with the tool until he was holding it up to her throat.  Referencing to the diagram that the witnesses used during their testimony, [Rodriguez and K.W.] testified that before the incident, they saw it on the counter over here (indicating), perhaps five to ten feet away from where defendant was working at the fry station. 


That means, ladies and gentleman, that he purposefully walked that distance and got the tool, and perhaps even hiding it until the moment when he surprised her and held it up to her throat.  He knew what he was doing, and he obviously planned and intended to do it.  He knew she didn’t want him.  He wanted her.  He wanted to touch her and be physically close to her, and this was the only way that was gonna happen, by force.


            But Rodriguez and K.W. testified that prior to the assault, they last saw the tool lying on the counter, approximately 10 to 15 feet away from appellant.  No one saw appellant holding the tool prior to the assault.  And K.W. describes the incident as happening very suddenly, stating that prior to the assault, she “didn’t [even] know [appellant] was back there.”  The witnesses also agree that appellant was working in the fry area and helping to prepare an order before the assault.  Given the surprise nature of the assault, it is reasonable to infer that appellant may have been concealing the weapon while he worked, and the prosecutor’s statements to this effect do not constitute plain error.

Furthermore, there is no merit to appellant’s argument that the prosecutor pointed to evidence outside the record by referencing appellant’s romantic feelings for K.W.  It was well established during trial that appellant often told K.W. that she was “beautiful” and his “love,” that appellant had asked K.W. whether she had a boyfriend, and that appellant had asked her to party with him.  Rodriguez also testified that appellant frequently talked to him about liking K.W. and even told Rodriguez “every day” that he wanted to “marry her.”  Additionally, appellant stated to police after the assault that he believed he was being arrested for a “sexual aggression.”[2]  Because the prosecutor’s statements have adequate support in the record, they do not constitute plain error. 

            Finally, the prosecutor did not improperly inflame the passions and prejudices of the jury by using appellant’s belief that he was being arrested for a “sexual aggression” as evidence of appellant’s motive.  The prosecutor stated, “Officer DeVinny never mentioned anything about a sexual assault or sexual aggression, but that’s what the defendant believes he’s being accused of because that’s what his motivation was.”  Appellant’s videotaped statement to this effect was properly in evidence.  Consequently, there is no plain error in the prosecutor’s use of this statement to establish appellant’s motive for committing the crime or to explain appellant’s intent while holding K.W. tightly against him during the assault. 

B.        Did the plain error affect appellant’s substantial rights?

            Because we conclude that the prosecutor committed plain error by describing appellant’s explanation as “pathetic,” we next address whether the error affected appellant’s substantial rights.  An appellant bears a “heavy burden” in showing that the error affects substantial rights, and this burden is satisfied only where the appellant shows that the error was prejudicial and affected the outcome of the case.  Griller, 583 N.W.2d at 741. 

Here, we conclude that appellant has failed to meet this burden.  As already discussed, the evidence was more than sufficient to support the conviction, and appellant has failed to submit any argument as to how the error substantially affected the outcome of his case.  Therefore, we conclude that appellant is not entitled to a new trial. 


HARTEN, Judge (concurring specially)

            I concur in the result.


[1]K.W. denies ever holding the tool to appellant’s back. 

[2]When the state asked permission to publish this statement to the jury, appellant did not object, nor did he object during or after the videotape was played.