This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2012).
STATE OF MINNESOTA
IN COURT OF APPEALS
A13-0546
State of Minnesota,
Respondent,
vs.
Juan Jasso, Jr.,
Appellant
Filed October 27, 2014
Affirmed
Worke, Judge
Kandiyohi County District Court
File No. 34-CR-11-920
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Shane D. Baker, Kandiyohi County Attorney, Willmar, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Rochelle R. Winn, Assistant
Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Rodenberg, Presiding Judge; Worke, Judge; and Kirk,
Judge.
UNPUBLISHED OPINION
WORKE, Judge
Appellant challenges his conviction of third-degree criminal sexual conduct,
arguing that the evidence was insufficient to show that the complainant was unable to
withhold consent, and that his counsel was ineffective for misadvising him on his
maximum sentencing exposure. We affirm.
FACTS
On October 28, 2011, A.R. went to her neighbor’s house for a party where she
consumed alcohol with the other guests, including appellant Juan Jasso, Jr. When A.R.
left around 1:00 a.m., she described herself as stumbling, dizzy, and ready to just go to
sleep. Between leaving the party and arriving home, Jasso asked A.R. “Can I hit that?”
and she responded “No. No. No.” and “Forget about it.” Upon arriving home, A.R.
vomited and then went to bed in her clothes, which still had vomit on them because she
was too intoxicated to clean herself. A.R. next remembers waking up to Jasso pulling her
across her bed by her ankle. When she attempted to crawl away, Jasso hit her tailbone,
which made A.R. unable to move her legs. Jasso grabbed A.R.’s face and blew what
A.R. believed to be crack-cocaine smoke into her mouth.
Jasso took his clothes off, grabbed A.R. by the back of her head, and forced his
penis into her mouth. A.R. was not able to object to Jasso’s actions because she could
not catch her breath and was having a panic attack. A.R. got sick again and threw up.
Jasso pulled off A.R.’s pants, and A.R. told Jasso “I don’t want to do this. Please just
leave me alone.” Jasso put his penis inside of A.R.’s vagina. A.R. testified that she tried
to grit her teeth and bear it because she could not move her legs, could not catch her
breath, and was very intoxicated. Jasso does not dispute that he engaged in sexual
contact with A.R., but claims the contact was consensual.
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After a jury trial, Jasso was found guilty of third-degree criminal sexual conduct
and was sentenced to 131 months in prison.
Jasso’s trial counsel erroneously advised Jasso that he had only two criminal
history points, which called for a guidelines sentence between 53 and 91 months. Trial
counsel incorrectly believed that one of Jasso’s previous convictions had decayed, and
that he did not have a custody status point. In reality, Jasso had five criminal history
points, which called for a guidelines sentence between 131 and 180 months.
Prior to trial, Jasso rejected a plea offer. After postconviction proceedings, in
which Jasso and trial counsel testified and disputed the plea offers that were
communicated, the district court found: (1) trial counsel had discussed Jasso’s potential
sentence and plea offers, including the prosecutor’s recorded offer of fourth-degree
criminal sexual conduct; and (2) trial counsel advised Jasso that he would receive a
prison sentence ranging from 53 to 91 months, despite Jasso’s claim he was informed his
maximum sentence would be 48 months. The district court concluded that Jasso
demonstrated his trial counsel’s representation fell below an objective standard of
reasonableness, but that Jasso did not show but for the ineffective assistance of counsel
he would have accepted the plea offer.
This appeal follows.
DECISION
Sufficiency of the evidence
We review a claim of insufficient evidence to determine whether the evidence,
when viewed in the light most favorable to the conviction, is sufficient to allow the jury
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to reach their verdict. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). We must
assume 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). We will not disturb the
verdict if the jury, acting with due regard for the presumption of innocence and the
requirement of proof beyond a reasonable doubt, could reasonably conclude that the
defendant was guilty of the charged offense. Bernhardt v. State, 684 N.W.2d 465, 476-
77 (Minn. 2004).
A person is guilty of third-degree criminal sexual conduct when he engages in
sexual penetration with another and “knows or has reason to know that the complainant is
. . . mentally incapacitated[] or physically helpless.” Minn. Stat. § 609.344, subd. 1(d)
(2010). Sexual penetration includes sexual intercourse and fellatio. Minn. Stat. §
609.341, subd. 12(1) (2010). A person is mentally incapacitated when the “person[,]
under the influence of alcohol, or a narcotic, . . . administered to that person without the
person’s agreement, lacks the judgment to give a reasoned consent to sexual contact or
sexual penetration.” Id., subd. 7 (2010). A person is physically helpless if she “is (a)
asleep or not conscious, (b) unable to withhold consent or to withdraw consent because of
a physical condition, or (c) unable to communicate nonconsent and the condition is
known or reasonably should have been known to the actor.” Id., subd. 9 (2010). Consent
is present when “words or overt actions . . . indicat[e] a freely given present agreement to
perform a particular sexual act with the actor. Consent does not mean . . . that the
complainant failed to resist a particular sexual act.” Id., subd. 4(a) (2010). “A person
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who is mentally incapacitated or physically helpless . . . cannot consent to a sexual act.”
Id., subd. 4(b) (2010).
Two cases provide guidance in deciding this matter. In State v. Blevins, the
complainant went out with friends and consumed several alcoholic drinks. 757 N.W.2d
698, 699 (Minn. App. 2008). The complainant became separated from her friends and
Blevins approached her, led her under a house’s crawl space, and asked if he could
perform oral sex on her. Id. The complainant testified that she was “pretty drunk,” and
told Blevins she did not want oral sex. Id. Blevins performed oral sex on the
complainant and then had sexual intercourse with her. Id. Blevins was convicted of
third-degree criminal sexual conduct for sexual contact with a physically helpless victim.
Id. This court reversed his conviction because the complainant verbally expressed to
Blevins that she did not consent to the sexual encounter; therefore, “the evidence [was]
insufficient to demonstrate that she was unable to withhold or withdraw her consent.” Id.
at 701.
In State v. Berrios, the complainant consumed several drinks, and became so
intoxicated that she had memory gaps and described her state as “‘falling down drunk.’”
788 N.W.2d 135, 137 (Minn. App. 2010), review denied (Minn. Nov. 16, 2010). The
complainant was placed in a bedroom by her coworkers, and the next thing she
remembered was Berrios pulling down her pants. Id. The complainant said “no” and
Berrios stopped, then she passed out. Id. The complainant “later woke up vomiting and
discovered Berrios on top of her with his penis inside her vagina.” Id. She kept passing
out and was unable to move her body. Id. This court upheld Berrios’s third-degree
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criminal-sexual-conduct conviction, concluding that the jury had ample evidence to
determine that Berrios knew or had reason to know that the complainant “had been
rendered physically helpless by her alcohol consumption.” Id. at 143. This court
distinguished the facts in Berrios from Blevins: first, the complainant in Berrios kept
losing consciousness throughout the attack while the complainant in Blevins was awake
at all points; second, the complainant in Berrios needed assistance getting to her room
while the complainant in Blevins was able to walk independently; and third, the
complainant in Berrios was unconscious when penetrated while the complainant in
Blevins was not physically unable to withhold consent even though she felt “ill,
uncomfortable, and afraid.” Id. at 142.
Here, A.R. was asleep and passed out from intoxication when Jasso came into her
room. Like the complainant in Berrios, A.R. was so intoxicated that she had vomited on
herself. A.R. testified that at one point she was not able to tell Jasso that she did not want
his penis in her mouth because she was having a panic attack and a difficult time
breathing. Therefore, even though A.R. verbally withheld consent during parts of the
assault, at points she was unable to withhold consent because of her level of intoxication
and because she was having a panic attack. Viewing the facts in a light most favorable to
the verdict, we conclude that the evidence sufficiently supports the jury’s verdict.
Ineffective assistance of counsel
We review the denial of postconviction relief based on an ineffective assistance of
counsel claim de novo because it is a mixed question of fact and law. Hawes v. State,
826 N.W.2d 775, 782 (Minn. 2013). A claim of ineffective assistance of counsel is
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reviewed under the two-prong test set forth in Strickland v. Washington. State v. Rhodes,
657 N.W.2d 823, 842 (Minn. 2003) (citing 464 U.S. 668, 687, 104 S. Ct. 2052, 2064
(1984)). The appellant must show “(1) [that] his counsel’s performance fell below an
objective standard of reasonableness, and (2) that a reasonable probability exists that the
outcome would have been different but for counsel’s errors.” Id. (quotations omitted). A
reasonable probability is a probability sufficient to undermine confidence in the outcome.
Id.
Ineffective assistance of counsel occurs in a plea-bargain situation if “there is a
reasonable likelihood that the plea bargain would have been accepted had the defendant
been properly advised.” Leake v. State, 737 N.W.2d 531, 540 (Minn. 2007). When
counsel is ineffective, prejudice can be shown when the “loss of the plea opportunity led
to a trial resulting in a conviction on more serious charges or the imposition of a more
severe sentence.” Lafler v. Cooper, 132 S. Ct. 1376, 1387 (2012). In evaluating
prejudice, we review the totality of the evidence. Rhodes, 657 N.W.2d at 842. Finally,
“the postconviction court is in a unique position to assess witness credibility,” and is
given considerable deference in this determination. Opsahl v. State, 710 N.W.2d 776,
782 (Minn. 2006).
Jasso claims his trial counsel did not accurately convey the state’s offer. The
district court found that Jasso’s trial counsel discussed plea negotiations and the state’s
offer for the lesser offense of fourth-degree criminal sexual conduct with Jasso. Jasso
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does not present convincing facts or arguments to show otherwise.1 It is undisputed,
however, that trial counsel miscalculated Jasso’s criminal history score by multiple
points, and we conclude that trial counsel’s performance in this regard fell below an
objective standard of reasonableness.
Jasso argues that had he known his actual maximum sentencing exposure there is a
reasonable probability he would have accepted the state’s offer. Jasso stated at
sentencing that had he known the amount of time he was facing he thinks his decision
would have been different. He stated at the postconviction proceeding that if he knew his
correct criminal history score he would have accepted the state’s offer.
However, trial counsel testified at the postconviction proceeding that Jasso did
not indicate at any time that he wished to plead guilty and he did not request a pre-plea
investigation. Further, Jasso maintained his innocence throughout the proceedings. Jasso
argues this does not affect his likelihood of accepting a plea because his assertion of
innocence was only in relation to the use of force—a charge on which he was acquitted—
and that he does not deny engaging in sexual contact with A.R. These arguments are not
compelling. Even at sentencing, Jasso stated that the victim was lying about his criminal
conduct, and he did not specify that he thought her lies limited to the use of force.
Given trial counsel’s testimony and Jasso’s own statements, Jasso’s claim that he
would have accepted that state’s offer is insufficient to meet his burden. Although there
was a significant difference between Jasso’s actual sentence and the “worst case
1
We note that it is best practice to make a clear record of a defendant’s unwillingness to
take a certain plea to avoid instances, such as this one, in which there is disagreement
about what was offered.
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scenario” of which he was informed by trial counsel, we conclude that there is not a
reasonable probability that a proper pretrial criminal history score and sentence
guidelines calculation by trial counsel would have led Jasso to do anything other than
take the case to trial.
Affirmed.
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