Man Accused of Sexually Assaulting His Girlfriend’s Four-Year-Old Daughter and Giving Her an STI.

November 18, 2018

• The Case of Undisclosed Victim, 4; Undisclosed Victim, 4; A.M. Undisclosed Victim, 17
• Suspect Arturo Macarro Gutierrez

St. Paul, MN — Arturo Macarro Gutierrez, a St. Paul, Minnesota man, was convicted of sexually abusing two young children and sentenced to decades in prison after a Minnesota jury found him guilty of multiple counts of first- and second-degree criminal sexual conduct. The Minnesota Court of Appeals later affirmed most of his convictions but ordered the district court to resentence him after finding an error in how part of his sentence had been calculated.

The case began in October 2018, when authorities opened an investigation after a four-year-old child made a disclosure involving Gutierrez, who was identified as her mother’s boyfriend. According to court records, the child’s grandmother contacted police after learning of the disclosure. Investigators later determined that a second child was also a victim in the case.

Victims 1 and 2 are twins, born in March 2014. For a while, they lived with their mother at their maternal grandmother’s apartment. When they were about two and a half years old, they moved with their mother into a nearby apartment with Gutierrez. In September 2017, when the victims were three years old, victim 1 told her grandmother that “somebody was loving up on her too much” and “made a few more statements” which concerned the grandmother “enough” to bring her granddaughters to Midwest Children’s Resource Center1 (MCRC) “to get checked.”

On September 5, 2017, a nurse conducted a recorded interview with both victims. Victim 1 stated that Gutierrez “burned [her]” with “the lighter.” But victim 1 denied ever being “hurt” or molested. When victim 2 was asked if “somebody touch[ed] you,” she responded that Gutierrez touched her “in Grandma’s house” with “the knife.” But when the nurse tried to get more details, victim 2 stated that “nothing” happened to her, and the nurse eventually ended the interview. No criminal charges resulted from these interviews.

Victims 1 and 2 continued to live with their mother and Gutierrez, and the grandmother provided childcare. In October 2018 when they were four years old, the grandmother left the victims in her son’s care while she went to work. When the grandmother returned home, victim 1 told her, “[Gutierrez] touched me on my bottom and he hurt me.” The grandmother learned that the victims had been left solely in Gutierrez’s care; neither her son nor the victims’ mother were present. The grandmother did not question either child, but noticed that victim 1’s showed signs of sexual assault. A physician examined both victims at a hospital a few days later. Victim 1 complained of symptoms at that time. Both victims underwent testing and swabs tested positive for gonorrhea, a sexually-transmitted infection, and victim 2’s vaginal and throat swabs also tested positive for gonorrhea.

The children were taken for medical evaluation, where testing produced evidence supporting the state’s case. Investigators also found that both children had been in Gutierrez’s care at the time of the alleged offenses.

When officers executed a search warrant at the residence connected to the investigation, they located Gutierrez hiding in the attic.

At the time of his arrest, Gutierrez, then 35, had a prior criminal history that included convictions for domestic assault, theft, fleeing police and fifth-degree assault.

At trial, prosecutors presented testimony from the children, family members, medical professionals and investigators, along with recorded forensic interviews conducted through the Midwest Children’s Resource Center. Prosecutors also called A.M., Gutierrez’s 17 year old daughter from a previous relationship, who testified about prior conduct involving Gutierrez. In her testimony, she stated Gutierrez sexually assaulted her from the age of 6 until the age of 13. The district court admitted the testimony as “relationship evidence,” meaning jurors could consider it to understand the circumstances surrounding the charged offenses. Before A.M. testified, and again before deliberations, the court gave jurors a limiting instruction on how the testimony could be used.

During closing arguments, prosecutors reminded jurors of that instruction, stating that A.M. “is not a charged victim in this case, but you’re allowed to use her testimony to consider what it was like in that household and to consider the acts against her as you determine the defendant’s guilt in this case.”

The defense challenged A.M.’s credibility, in part by arguing she was “troubled beyond belief,” and presented testimony from the children’s mother, who said she had not tested positive for the same infection Gutierrez and the two children had, along with evidence that Gutierrez later tested negative despite not having received treatment.

The jury found Gutierrez guilty of multiple counts of first- and second-degree criminal sexual conduct involving children under the age of 13.

During the sentencing phase, prosecutors argued that aggravating circumstances justified a sentence above the range set by Minnesota’s sentencing guidelines. Jurors answered special-verdict questions and found that Gutierrez had acted “with particular cruelty by sexually assaulting [victim 1] in the presence of [victim 2]” and that both children were “particularly vulnerable due to [their] age.” Before imposing sentence, the district court told the courtroom that “the jury found factors relevant to an upward departure. And I want to make sure I acknowledge both victims and the particular cruelty that they suffered at the hands of this defendant.”

The district court imposed a 280-month sentence for count one, first-degree criminal sexual conduct against victim 1, and a consecutive 360-month sentence for count three, first-degree criminal sexual conduct against victim 2, “for a total of 640 months incarcerated.” Neither counts two nor four, the second-degree criminal-sexual-conduct charges, were adjudicated on the record, but Gutierrez’s warrant of commitment shows a conviction for both counts.”

Gutierrez appealed, challenging both his convictions and his sentence.

He first argued that the district court should not have allowed A.M.’s testimony. The Minnesota Court of Appeals rejected that argument, ruling that any error was harmless because jurors received limiting instructions, prosecutors used the testimony narrowly in closing arguments, and other evidence, including the matching test results, the timeline of custody, and the children’s statements to family members and forensic interviewers, supported the convictions independent of A.M.’s testimony.

Gutierrez also argued that the special-verdict questions given to jurors during sentencing were improperly worded, because they asked jurors to identify a legal reason for departing from the guidelines rather than to find specific facts that could support such a departure. The Court of Appeals agreed the wording was legally incorrect. However, the court found the mistake did not affect Gutierrez’s substantial rights, because the trial evidence, including the fact that the victims were four years old and, in the state’s words, “so young they were unable to report the abuse sufficiently for them to receive help” would have supported the same sentencing finding under properly worded questions. The court noted the evidence “overwhelmingly establish[ed]” that the children were particularly vulnerable and that they were “scared to be in the same room with [Gutierrez].”

The Court of Appeals did find a separate, more consequential error in how one part of the sentence was calculated. Minnesota law generally limits how far a judge can depart upward from the sentencing guidelines typically no more than double the standard range unless the court identifies a “severe” aggravating factor justifying a larger increase. The appellate court determined that the 360-month sentence imposed on one count was more than double the applicable guideline range, and that the district court had not made the required finding that a severe aggravating factor justified that larger departure. Because that explanation was missing, the Court of Appeals reversed that portion of the sentence and sent the case back to the district court for resentencing.

The appellate court also ruled that two of Gutierrez’s second-degree criminal sexual conduct convictions had to be vacated, because they were lesser-included offenses of his first-degree convictions for the same conduct meaning Minnesota law does not allow a defendant to be convicted of both a greater offense and a lesser offense arising from the same act. The state agreed those two convictions should not have been entered, noting in its brief that “the entry of the convictions was not intentional and occurred in error.”

In its final ruling, the Minnesota Court of Appeals affirmed Gutierrez’s remaining convictions, vacated the two lesser-included convictions, reversed the portion of his sentence tied to the greater-than-double departure, and remanded the case to the district court for resentencing. The court summarized its decision as “affirmed in part, reversed in part, and remanded.”