Opinion
A15-0101
02-08-2016
State of Minnesota, Respondent, v. Reynaldo Morales, Appellant.
Lori Swanson, Attorney General, St. Paul, Minnesota; and Mark A. Ostrem, Olmstead County Attorney, James P. Spencer, Assistant County Attorney, Rochester, Minnesota (for respondent) Cathryn Middlebrook, Chief Appellate Public Defender, Sara L. Martin, Assistant State Public Defender, St. Paul, Minnesota (for appellant)
This opinion will be unpublished and may not be cited except as provided by Minn . Stat. § 480A.08, subd. 3 (2014). Affirmed
Reyes, Judge Olmsted County District Court
File No. 55CR142154 Lori Swanson, Attorney General, St. Paul, Minnesota; and Mark A. Ostrem, Olmstead County Attorney, James P. Spencer, Assistant County Attorney, Rochester, Minnesota (for respondent) Cathryn Middlebrook, Chief Appellate Public Defender, Sara L. Martin, Assistant State Public Defender, St. Paul, Minnesota (for appellant) Considered and decided by Halbrooks, Presiding Judge; Stauber, Judge; and Reyes, Judge.
UNPUBLISHED OPINION
REYES, Judge
On appeal from his conviction of first-degree criminal sexual conduct, appellant argues that (1) the district court deprived him of the right to present a complete defense by excluding evidence showing that he was not responsible for the victim's injuries; (2) the district court plainly erred by summarizing the allegations in the complaint during voir dire; and (3) the evidence was insufficient to prove appellant committed first-degree criminal sexual conduct because the state failed to prove use of force or that the victim suffered a physical injury. In his pro se supplemental brief, appellant also argues that he received ineffective assistance of counsel and that he was deprived of his right to present a complete defense because touch DNA was not included. We affirm.
FACTS
In early April 2014, K.K.V. spent two nights at a homeless shelter in Rochester. During her stay, she learned that appellant Reynaldo Morales had an inexpensive room to rent in his apartment. She went to the apartment and met him for the first time.
On April 8, 2014, after some discussion through text messages regarding the amount of rent, K.K.V. and appellant agreed that she would rent the room. Appellant helped her move her belongings into the apartment and then went over some ground rules with her.
At trial before a jury, K.K.V. testified that appellant attacked her shortly after their discussion. She testified that he grabbed her by her left arm, dragged her across the hallway, and slammed her into the wall, hard enough to hurt her back. Although K.K.V. told appellant to stop and that he was hurting her, he did not listen. Still holding onto K.K.V.'s left arm, appellant whipped her around a doorway and dragged her into his bedroom. At the foot of his bed, he violently removed her clothing causing her tank top to rip.
Appellant then pushed K.K.V. onto his bed and proceeded to penetrate her vaginally. K.K.V. again told appellant that he was hurting her and that she did not want to have sex with him. K.K.V. tried to get up, but appellant flipped her onto her stomach and continued to penetrate her vaginally. He then orally penetrated her, telling K.K.V. that he would kill her if she refused.
When he was finished, K.K.V. grabbed her clothes and ran out of the apartment naked. She got dressed in the lobby of the apartment building and immediately drove herself to the hospital. A nurse from the hospital testified that when K.K.V. arrived "[s]he was very distraught, crying, and visibly shaken."
A sexual assault nurse examiner (SANE nurse) testified that she examined K.K.V., who complained of pain in her lower abdomen and soreness in her lower back. The SANE nurse observed and requested that photographs be taken of K.K.V.'s injuries, which included two abrasions on K.K.V.'s vaginal opening as well as bruises and abrasions on her body. The SANE nurse could not speak to exactly how long the injuries had been there, but she testified that the injuries were consistent with K.K.V.'s report of what happened to her.
The SANE nurse completed an oral and vaginal swab on K.K.V. The oral swab contained DNA that matched appellant's DNA, and the parties stipulated to this fact at trial. The vaginal swab contained DNA that matched appellant's DNA and the DNA of a second unidentified male. The state did not offer the results of the vaginal swab into evidence.
Two police officers who interviewed K.K.V. about the incident testified to what K.K.V. reported to them. Appellant also testified. He admitted that he had penetrated K.K.V. both orally and vaginally, but claimed that K.K.V. had initiated it.
The state charged appellant with first-degree criminal sexual conduct in violation of Minn. Stat. § 609.342, subd. 1(e)(i) (2012), and a jury trial was held. The jury found appellant guilty of first-degree criminal sexual conduct and the lesser-included offense of third-degree criminal sexual conduct. The district court sentenced appellant to an executed 240-month prison term on the first-degree criminal sexual conduct conviction. This appeal follows.
DECISION
I. The district court appropriately exercised its discretion by excluding the DNA evidence.
Appellant argues that the district court abused its discretion by excluding the DNA evidence from K.K.V.'s vaginal swab because this evidence would have supported his defense that he was not responsible for K.K.V.'s injuries. We disagree.
"Evidentiary rulings rest within the sound discretion of the [district] court and will not be reversed absent a clear abuse of discretion." State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003). Even when it is claimed that the exclusion of evidence deprived a criminal defendant of his constitutional right to present a complete defense, we review the ruling under an abuse-of-discretion standard. State v. Penkaty, 708 N.W.2d 185, 201 (Minn. 2006).
Evidence of a victim's previous sexual conduct is not admissible in a prosecution for criminal sexual conduct except by court order pursuant to the rape-shield law, Minn. Stat. § 609.347, subd. 3 (2012). State v. Crims, 540 N.W.2d 860, 866 (Minn. App. 1995), review denied (Minn. Jan. 25, 1996). But such evidence is admissible "in all cases in which admission is constitutionally required by the defendant's right to due process, his right to confront his accusers, or his right to offer evidence in his own defense." State v. Benedict, 397 N.W.2d 337, 341 (Minn. 1986) (citing State v. Caswell, 320 N.W.2d 417 (Minn. 1982)). In determining whether to admit evidence of the victim's prior sexual conduct, courts must balance the state's interest in guarding the victim's privacy against the accused's constitutional rights. Caswell, 320 N.W.2d at 419.
Under the rape-shield law, evidence of an alleged victim's previous sexual conduct is admissible only for limited purposes, such as:
When the prosecution's case includes evidence of semen, pregnancy, or disease at the time of the incident or, in the case of pregnancy, between the time of the incident and trial, evidence of specific instances of the victim's previous sexual conduct is admissible solely to show the source of the semen, pregnancy, or disease.Minn. Stat. § 609.347, subd. 3(b). Section 609.347, subd. 4 (2012), also sets forth specific procedures that must be followed to obtain admission of such evidence, including making a motion before trial setting forth an offer of proof.
The Minnesota Rules of Evidence contain an almost identical procedure. The differences between the rule and the statute are not consequential in this case. Compare Minn. R. Evid. 412, with Minn. Stat. § 609.347, subds. 3-4.
After trial began, appellant moved orally to admit the DNA evidence from the vaginal swab to show "another potential source of the injury that [K.K.V.] sustain[ed]." The district court denied appellant's motion, citing Minn. Stat. § 609.347 (2012) and Minn. R. Evid. 412. The district court reasoned:
Here[,] we have a [d]efendant who wants to offer evidence of the alleged victim's prior sexual conduct to support its theory that someone other than the [d]efendant caused her injuries. . . . That theory, however, is based upon nothing more than conjecture. There is nothing [that is] set forth by the [d]efendant in his offer of proof that alleges that someone other than the [d]efendant could be the source of the injuries she suffered.
Appellant failed to demonstrate that the proffered evidence was admissible under Minn. Stat. § 609.347. As an initial matter, appellant failed to make a motion before trial began setting forth an offer of proof as required by the statute. See Minn. Stat. § 609.347, subd. 4. Nevertheless, appellant's offer of proof failed to identify anyone other than appellant who could be the source of the injuries that K.K.V. suffered.
Appellant cites to two cases in which he argues "[t]his court has reversed convictions where the [district] court excluded evidence of the complainant's prior sexual conduct when the defendant's due process right to present a defense outweighed the complainant's privacy interests protected by the rape[-]shield law." Both of these case are distinguishable.
In State v. Carroll, we concluded that a defendant has the right to cross examine a witness on inconsistent statements admitted into evidence, stating that "a court must allow attorneys to comment on and use admitted evidence." 639 N.W.2d 623, 626 (Minn. App. 2002), review denied (Minn. May 15, 2002). But here, the DNA evidence from the vaginal swab was not admitted evidence. And in State v. Hagen, we concluded that the rape-shield law was not intended to bar the admission of exculpatory evidence of DNA testing of semen indicating that it was "most probably not" appellant's and appellant claimed that he had no contact with the complainant. 391 N.W.2d 888, 891-92 (Minn. App. 1986), review denied (Minn. Oct. 17, 1986). Here, appellant did not claim to have no contact with K.K.V. In fact, he admitted that he penetrated K.K.V. both orally and vaginally but claims that K.K.V. initiated it. The district court did not abuse its discretion by excluding the DNA evidence from K.K.V.'s vaginal swab.
II. The district court did not commit prejudicial error by providing the jury panel with a summary of the allegations contained in the complaint.
Appellant argues that the district court prejudicially erred when it provided the jury panel with a summary of the allegations in the complaint. Specifically, appellant argues that the court's summary was not fair because it "unfairly highlighted the state's evidence and downplayed the defense, and might have created a perception that the court was biased in favor of the state." We are not persuaded.
During voir dire, the district court provided the jury panel with a summary of the allegations in the complaint. The summary included the majority of the allegations in the probable cause portion of the complaint but excluded a significant portion of the detail of the events leading up to and following the offense.
Because appellant did not object to the district court's reading of this statement at trial, our review is under the plain-error standard. Minn. R. Crim. P. 31.02; State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998). "The plain error standard requires that [appellant] show: (1) error; (2) that was plain; and (3) that affected substantial rights." State v. Strommen, 648 N.W.2d 681, 686 (Minn. 2002) (citations omitted). The third prong is satisfied if there is a "reasonable likelihood that the error had a significant effect on the verdict." See State v. Vance, 734 N.W.2d 650, 660 n.8 (Minn. 2007), overruled on other grounds by State v. Fleck, 810 N.W.2d 303 (Minn. 2012). "If those three prongs are met, we may correct the error only if it seriously affects the fairness, integrity, or public reputation of judicial proceedings." Strommen, 648 N.W.2d at 686 (quotation omitted).
We review a district court's voir dire decisions for an abuse of discretion. State v. Jackson, 770 N.W.2d 470, 486 (Minn. 2009) (citation omitted). We do not reverse based on a district court's statements to the jury unless a statement is "so prejudicial to one party that it render[s] a fair and impartial determination by the jury improbable." Fortier v. Ritter's Hairdressing Studios, Inc., 282 Minn. 382, 386, 164 N.W.2d 897, 899-900 (1969).
Under the Minnesota Rules of Criminal Procedure, the court must begin voir dire "by identifying the parties and their respective counsel and by outlining the nature of the case." Minn. R. Crim. P. 26.02, subd. 4(1). Minnesota's pattern-jury instructions explicitly provide that the "complaint or indictment may be read or summarized at the court's discretion." 10 Minnesota Practice, CRIMJIG 1.01B (2006) (emphasis added).
Although we acknowledge that the summary of the complaint given by the district court included more detail than is typical, we note that the district court made several qualifying statements to the jury panel regarding the summary. Cf. State v. Riddley, 776 N.W.2d 419, 428 (Minn. 2009) ("We presume a jury follows a court's cautionary instruction."); State v. Kennedy, 585 N.W.2d 385, 392 (Minn. 1998) (stating that cautionary instructions lessen "the probability of undue weight being given by the jury to the evidence"). The district court stated, both before and after providing the summary, that it comprised "alleged facts" and "allegations of the [c]omplaint." (Emphasis added). The district court also instructed the jury panel that "the [c]omplaint, the brief introduction, and the charging . . . creates no inference or presumption of guilt," that appellant was presumed innocent, and that only proof beyond a reasonable doubt could overcome this presumption. Because the district court appropriately exercised its discretion by following CRIMJIG 1.01B and summarizing the complaint, and by emphasizing that the facts of the complaint were only allegations, the district court's statement was not error that was plain.
Moreover, appellant's substantial rights were not affected. The record reflects that the jury had ample evidence on which to find appellant guilty. K.K.V. testified that appellant sexually assaulted her and consistently recounted details of the attack. A nurse from the hospital testified that when K.K.V. arrived "she was very distraught, crying, and visibly shaken," and one of the officers who interviewed K.K.V. at the hospital testified that "she was crying, sobbing uncontrollably" and "shaking a little bit." The parties stipulated to the fact that appellant's DNA matched the DNA evidence from K.K.V.'s oral swab. Finally, appellant admitted that he penetrated K.K.V. orally and vaginally.
III. Sufficient evidence supports the jury's conclusion that appellant committed first-degree criminal sexual conduct.
Appellant argues that the evidence presented at trial was insufficient to prove appellant committed first-degree criminal sexual conduct because the state failed to prove force and that K.K.V. suffered a personal injury.
When presented with a claim of insufficient evidence, this court's review is limited to a careful analysis of the record to determine whether the evidence presented at trial is sufficient to allow the jury to reach the verdict that it did. State v. Webb,440 N.W.2d 426, 430 (Minn. 1989) (citation omitted). 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] conviction can rest on the uncorroborated testimony of a single credible witness." State v. Foreman, 680 N.W.2d 536, 539 (Minn. 2004) (quotation omitted); see also Minn. Stat. § 609.347, subd. 1 (2012). The determination of whether a witness is reliable is a matter for the factfinder. See State v. White, 357 N.W.2d 388, 390 (Minn. App. 1984). Accordingly, we defer to the jury's credibility determinations, State v. Watkins, 650 N.W.2d 738, 741 (Minn. App. 2002), and 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).
To convict appellant of first-degree criminal sexual conduct, the state had to prove beyond a reasonable doubt that he used force or coercion to accomplish sexual penetration and that he caused personal injury to K.K.V. See Minn. Stat. § 609.342, subd. 1(e)(i). "Personal injury" is defined as "bodily harm as defined in section 609.02, subdivision 7, or severe mental anguish or pregnancy." Minn. Stat. § 609.341, subd. 8 (2012). "Bodily harm" is defined as "physical pain or injury, illness, or any impairment of physical condition." Minn. Stat. § 609.02, subd. 7 (2012) (emphasis added).
We conclude that there is sufficient evidence in the record to show that appellant used force and that K.K.V. suffered a personal injury involving physical pain. K.K.V. testified that appellant grabbed her and slammed her into the wall, hurting her back. And during the attack, K.K.V. told appellant multiple times that he was hurting her and to stop.
Although appellant acknowledges that a conviction can rest on the testimony of a single witness, he argues that "[t]his case presents one of those rare circumstances where the lack of corroboration leads to grave doubts, and [appellant's] convictions must be reversed." Appellant's argument is misguided as this is not a lack-of-corroboration case. See Marshall v. State, 395 N.W.2d 362, 365 (Minn. App. 1986) (stating that strong corroborating evidence in a criminal sexual conduct case can include "a prompt complaint of the incident, evidence of the victim's physical and emotional condition, or detailed descriptions by the victim of the incidents"), review denied (Minn. Dec. 17, 1986). Both a nurse from the hospital and an officer who interviewed K.K.V. testified that at the hospital she was "crying" and "visibly shaken." Further, the SANE nurse testified that K.K.V.'s injuries were consistent with her report of what happened to her.
Appellant also argues that K.K.V.'s testimony was unreliable due to several inconsistencies in her story. We are not persuaded. K.K.V. testified consistently regarding the sexual assault both on direct and cross-examination. The alleged inconsistences involved facts not directly relevant to the sexual assault. Further, appellant's attorney had the opportunity to cross-examine the state's witnesses about all of these alleged inconsistencies and highlight them in his closing argument. The jury's verdict reflects its rejection of appellant's arguments in favor of the state's witnesses and evidence. See Moore, 438 N.W.2d at 108. In sum, there is sufficient evidence in the record to support appellant's conviction of first-degree sexual conduct.
IV. Appellant did not receive ineffective assistance of counsel.
In his pro se supplemental brief, appellant argues that he "was denied his right to an adequate and fair defense through representation by ineffective counsel." Specifically, he argues that one of his public defenders was "noticeably asleep" on more than one occasion during the proceedings and that his other public defender did not put forth much effort in the proceedings because he had just accepted a position as an Olmsted County prosecutor. But there is nothing in the record supporting either of these allegations.
Appellant further alleges the following attorney errors: (1) failure to object to the photos of K.K.V.'s vaginal injury being admitted into evidence; (2) no motion made to admit his or K.K.V.'s phone records; (3) not calling as a witness a previous boyfriend of K.K.V. to show that she had previously made the same claims against him; and (4) no objection to having an Olmstead County jury attendant, who knew appellant from previous court appearances, serve on the jury. But appellate courts "will generally not review an ineffective-assistance-of-counsel claim that is based on trial strategy." Andersen v. State, 830 N.W.2d 1, 10 (Minn. 2013). Trial strategy includes such decisions as what evidence to present to a jury, which witnesses to call, and other trial tactics. Id. at 13. We conclude that because the alleged errors are trial strategy, appellant did not receive ineffective assistance of counsel.
Moreover, we note that the juror who was employed as an Olmstead County jury attendant could not have been disqualified merely because he knew of appellant through his work. See, e.g., State v. Hanson, 286 Minn. 317, 331, 176 N.W.2d 607, 616 (1970) (concluding that the jury composition did not void the trial when one of the jurors was a cousin of the sheriff and other jurors had past business relations with the county attorney). --------
We do not address appellant's further argument that he was deprived of his right to present a complete defense by not including touch DNA because the touch DNA was not offered into evidence at trial and there is nothing in the record regarding touch DNA to support appellant's contention that this evidence will exculpate him. See Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996).
Affirmed.