Opinion
A21-1621
10-03-2022
State of Minnesota, Respondent, v. Christian Portillo, Appellant.
Keith Ellison, Attorney General, St. Paul, Minnesota; and John J. Choi, Ramsey County Attorney, Jeffrey A. Wald, Assistant County Attorney, St. Paul, Minnesota (for respondent) Cathryn Middlebrook, Chief Appellate Public Defender, Sharon E. Jacks, Assistant Public Defender, St. Paul, Minnesota (for appellant)
This opinion is nonprecedential except as provided by Minn. R. Civ. App. P. 136.01, subd. 1(c).
Ramsey County District Court File No. 62-CR-19-162
Keith Ellison, Attorney General, St. Paul, Minnesota; and
John J. Choi, Ramsey County Attorney, Jeffrey A. Wald, Assistant County Attorney, St. Paul, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Sharon E. Jacks, Assistant Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Reilly, Presiding Judge; Larkin, Judge; and Reyes, Judge.
LARKIN, JUDGE.
Appellant challenges his conviction for second-degree criminal sexual conduct. He argues that the district court erred in denying his motion for a mistrial, which was based on the prosecutor's failure to comply with pretrial rulings. Appellant also argues that the prosecutor engaged in prejudicial misconduct during closing rebuttal argument. We affirm.
FACTS
Respondent State of Minnesota charged appellant Christian Portillo with two counts of criminal sexual conduct in the second degree for touching the breasts, buttocks, and vagina of JG. The case was tried to a jury. Before trial, the district court ruled on several motions and prohibited the state and its witnesses from: (1) referring to JG as the "victim," (2) mentioning investigator AS's military service, (3) eliciting testimony about Portillo's alleged harassment of JG's family, and (4) eliciting testimony from JG's mother about JG's behavioral changes.
At trial, the state presented evidence that Portillo sexually abused JG almost daily for approximately five years. At the time of the abuse, JG was less than 16 years old. JG testified that when she was around 11 years old her mother, NS, began a relationship with Portillo. Portillo moved into NS's house and started working with NS and JG at NS's cleaning company. JG testified that Portillo grabbed her butt, touched her vagina and breasts over her clothes, and forced his hand under her shirt to touch her breasts. JG testified that this behavior occurred almost every day, both at home and when Portillo and JG were alone at work together. The abuse did not end until JG was around 16 years old. In March 2014, a few months after Portillo moved out, JG first reported the abuse to law enforcement.
Portillo's attorney thoroughly cross-examined JG during trial. He emphasized that JG delayed reporting aspects of the alleged abuse, that her statements to investigators were inconsistent, and that she added new details in later interviews with law enforcement. Portillo also elicited testimony from JG about her abuse by her uncle. Portillo's theory at trial was that JG had confused her memories of abuse by her uncle and incorrectly believed she had also been abused by Portillo.
JG's mother NS testified that she never saw any inappropriate behavior between JG and Portillo. NS claimed that she learned about the allegations directly from JG after Portillo moved out of her home. An investigator for the state, AS, testified about his initial meetings with JG and his interview of Portillo, portions of which were played for the jury.
Prior to closing arguments, Portillo moved for a mistrial, which the district court denied. The jury found Portillo guilty. The district court entered a judgment of conviction for criminal sexual conduct in the second degree and sentenced Portillo to serve 108 months in prison. This appeal follows.
DECISION
I.
Portillo contends that the district court abused its discretion by denying his motion for a mistrial. He argues that he is entitled to a new trial based on "the prosecutor's misconduct that permeated his trial."
"A mistrial should not be granted unless there is a reasonable probability that the outcome of the trial would be different if the event that prompted the motion had not occurred." State v. Manthey, 711 N.W.2d 498, 506 (Minn. 2006) (quotation omitted). We review denial of a mistrial for abuse of discretion. State v. Griffin, 887 N.W.2d 257, 262 (Minn. 2016). In determining whether there is a reasonable probability that the outcome of the trial would have been different, courts may consider various factors, including whether the presentation of improper evidence was an isolated incident, the strength of the state's case, and the district court's provision of a cautionary instruction. State v. Chavez-Nelson, 882 N.W.2d 579, 591 (Minn. 2016). "The trial judge is in the best position to determine whether an error is sufficiently prejudicial to require a mistrial or whether another remedy is appropriate." Griffin, 887 N.W.2d at 262.
"A prosecutor has an affirmative obligation to ensure that a defendant receives a fair trial, no matter how strong the evidence of guilt." State v. Coleman, 944 N.W.2d 469, 485 (Minn.App. 2020) (quotation omitted), aff'd, 957 N.W.2d 72 (Minn. 2021). "It is misconduct for a prosecutor to violate an order from the district court." State v. Nowels, 941 N.W.2d 430, 437 (Minn.App. 2020), rev. denied (Minn. June 16, 2020).
Portillo argues that the prosecutor violated multiple court orders and elicited testimony regarding inadmissible evidence, thereby unfairly prejudicing the jury against him. Specifically, Portillo argues that he was harmed because (1) JG testified that Portillo made her "snort some kind of powder," (2) the prosecutor referred to JG as the "victim" at trial, (3) investigator AS testified that he was on military leave, and (4) NS attempted to testify that she learned of the alleged abuse after installing cameras at her home and that JG's behavior had changed. Portillo concedes that none of the testimony was intentionally elicited by the prosecutor.
The district court expressed frustration with the state's failure to comply with its pretrial orders, but it ultimately concluded that a mistrial was not an appropriate remedy. The district court explained its reasoning as follows:
I am disturbed by the number of times during the trial that witnesses have gone into territories that they were not allowed to go into, and it was made clear that that was off limits.
The part about [Portillo] having [JG] snort, and I didn't hear what came after that, I'm looking at the jurors and anyone who heard that is thinking drugs. An adult man and a teenage girl and Bill Cosby has been in the news lately. [NS]'s comment about cameras, she didn't get very far, but she got far enough to conjure up in the minds of anyone who heard that something may have been caught on a camera. Where the jury might go with that, I have no idea. There are lots of places they can go with that. Comments about [JG] or [NS] observing [JG]'s demeanor, the way the question was phrased, and I thought for a split second I should stop and make that question more pointed, but I didn't. I'm kicking myself now that I didn't. I don't believe that [the prosecutor] intended to elicit that, but the way the question was phrased opened the door for her to do that.
. . . [AS]'s military service by itself, sure that might be innocuous. I might not view him with some higher level of credibility or respect if that was the only thing in this trial that had gone like that, I'd think no problem. But it is a problem because it kept happening. When you put all these together, it's a problem.
I do not believe that it rises to the level of a mistrial. I believe that those matters can be addressed in a way that reminds jurors of their duty, to consider only what is before them and that testimony that I order them to disregard has to be disregarded. We have some smart, patient jurors and I think they can and will do that. I do not believe that the information that was improperly put by the witnesses in front of the jury is such that [Portillo] cannot get a fair trial. So the motion is denied.
Portillo argues that the district court erred by relying on the unintentional nature of the violations. But that was a relevant consideration because this court is "much more likely to find prejudicial misconduct when the state intentionally elicits impermissible testimony." State v. McNeil, 658 N.W.2d 228, 232 (Minn.App. 2003). The critical inquiry is whether the misconduct "was so prejudicial as to have substantially affected the jury and denied appellant a fair trial." Id.
We also note that the challenged testimony was either limited in scope, withdrawn, or corrected by the district court. The most concerning testimony was the suggestion that Portillo provided JG with drugs. But the reference was brief, non-responsive to the question asked, and swiftly addressed by the district court, which immediately instructed the jury to disregard the response. "When a court instructs a jury to disregard an improper question, we presume the jurors followed the instruction." Griffin, 887 N.W.2d at 262.
As to the use of the word "victim," the prosecutor referred to JG as a victim only once at trial during the following exchange with AS, the investigator for the state:
Q: [W]hen you're given a case, tell me about what you do from there.
A: It depends on what the case is. But typically it involves reading the reports, potentially following up with officers, following up with the victim, victim advocate. At some point along the case, attempting to make contact with the alleged individual involved in the crime.
Q: [A]t some point, did you receive a case involving an individual by the name of Christian Portillo?
A: Yes, ma'am.
Q: Do you remember when you -- an approximate timeframe of when you were assigned the case?
A: It would have been 2018.
Q: And so you talked briefly about what you do in a general case when you're assigned it. Is it fair you would have read the reports and gone through the case that had been worked up thus far?
A: Yes, ma'am.
Q: Did you do that in this particular case?
A: Yes, ma'am.
Q: Did you identify the victim?
A: Yes, ma'am.(Emphasis added.)
Although the district court had ruled that references to the "victim" were not allowed, the court noted that it did not expect "100 percent" compliance with that ruling. In that context, the challenged reference seems inadvertent.
As to AS's military service, he testified, "I'm currently on military leave right now from the department. Before I left, I was assigned to the sex crimes section, domestic unit, juvenile unit, patrol supervisor and patrol." AS's statement was brief, Portillo did not object at the time, and the fact of AS's military service was not repeated or referenced again by AS or the prosecutor.
As to NS's testimony, when asked when she became aware of the allegations, NS first testified "[n]ot during the time [Portillo] was living at home." The state then asked "[w]hen did you find out" to which NS replied, "[w]hen I installed cameras and he - -," before being cut off by a defense objection. The state withdrew the question that prompted the response. Additionally, although the district court had ruled that NS was not to testify about changes in JG's behavior, evidence of a complainant's change in behavior after a sexual assault is commonly admitted as corroborative evidence. See, e.g., State v. Wright, 679 N.W.2d 186, 190 (Minn.App. 2004) ("The testimony from others about K.R.'s demeanor, emotional condition, and change in behavior after the sexual assault also is strong corroborative evidence."), rev. denied (Minn. June 29, 2004); State v. Mosby, 450 N.W.2d 629, 635 (Minn.App. 1990) ("Furthermore, N.D.'s upset, emotional state after the assault provides further corroboration."), rev. denied (Minn. Mar. 16, 1990). Although NS mentioned JG's behavioral changes, NS did not suggest they were connected to the sexual-abuse allegations, and the prosecutor did not argue that JG's behavior corroborated her allegations. We therefore discern no prejudice.
We note that JG testified at length about the abuse and that defense counsel thoroughly cross-examined her, providing the jury with multiple reasons to doubt her credibility. Such cross-examination mitigated any prejudice stemming from the state's unintentional elicitation of excluded evidence. See In re Welfare of D.D.R., 713 N.W.2d 891, 902 (Minn.App. 2006) (finding that though the prosecutor elicited improper testimony, the damage was lessened because "appellant had every opportunity to cross-examine, and did so, regarding the challenged testimony.")
Once again, the district court "is in the best position to determine whether an error is sufficiently prejudicial to require a mistrial." Griffin, 887 N.W.2d at 262. The record here shows that the district court swiftly and carefully addressed the violations, assessed the prejudicial impact of those violations, and concluded that given the limited nature of the improper references and the court's curative instruction, a mistrial was not warranted. Applying the deference that is due, we discern no abuse of discretion in the district court's approach or its denial of Portillo's request for a mistrial. See State v. Marchbanks, 632 N.W.2d 725, 729 (Minn.App. 2001) (deferring to district court's observations and impressions in denying a mistrial motion).
II.
Portillo contends that the prosecutor incorrectly described the presumption of innocence in rebuttal closing argument and that the alleged error supports reversal. "It is improper for a prosecutor to misstate the presumption of innocence in a criminal case." Moore v. State, 945 N.W.2d 421, 433 (Minn.App. 2020) (quotation omitted), rev. denied (Minn. Aug. 11, 2020). When evaluating alleged prosecutorial misconduct during a closing argument, we "look to the closing argument as a whole, rather than to selected phrases and remarks." State v. Hallmark, 927 N.W.2d 281, 308 (Minn. 2019) (quotations omitted).
Portillo did not object to the alleged prosecutorial error. If the defendant fails to object to alleged prosecutorial misconduct during trial, the alleged misconduct is reviewed under a modified plain-error standard. State v. Ramey, 721 N.W.2d 294, 302 (Minn. 2006). Under modified plain-error review, the defendant bears the burden of establishing error that is plain. "An error is plain if it is clear or obvious; usually this means an error that violates or contradicts case law, a rule, or an applicable standard of conduct." State v. Bustos, 861 N.W.2d 655, 660-61 (Minn. 2015) (quotation). If the defendant establishes error that is plain, the burden shifts to the state to prove that there is no reasonable likelihood that the absence of the misconduct would have significantly affected the jury's verdict. Ramey, 721 N.W.2d at 302 . Even if the error affected the defendant's substantial rights, this court would not address the error unless doing so is necessary to ensure fairness and the integrity of the judicial proceedings. Id.; see Pulczinski v. State, 972 N.W.2d 347, 356 (Minn. 2022) ("In summary, appellate courts have a limited discretionary power to grant relief based on an unobjected-to error, which may be exercised only when a plain error affected a particular defendant's substantial rights and a failure to correct the error would have an impact beyond the current case by causing the public to seriously question the fairness and integrity of our judicial system.").
The prosecutor here explained the presumption of innocence as follows:
The presumption of innocence comes with an individual accused, unless and until the state proves its case beyond a reasonable doubt. [Defense counsel] correctly told you that. But it leaves him when the state has proven its case beyond a reasonable doubt. He no longer has that presumption. You've heard all of the evidence. You've heard all of the state's case against [Portillo]. He no longer has that presumption of innocence. He has been proven guilty beyond a reasonable doubt. We've gone through those elements. You'll be able to talk and consider each other's thoughts and the information you heard throughout the course of the case, but he no longer has that presumption of innocence.
Portillo argues that the prosecutor's statement on the presumption of innocence was error and that the error was plain. He relies on Moore, in which this court concluded that the following argument misstated the law and constituted error that was plain:
The defendant started this trial the way every criminal defendant starts every trial, with a complete presumption of innocence. But at the end of the State's case, now that all of the evidence is in, and as you begin deliberations, he's no longer entitled to that presumption.
The State has the burden of proof, and we gladly accept this burden, to prove each and every essential element that the Judge read to you beyond a reasonable doubt.945 N.W.2d at 433-34. Even though that statement constituted error that was plain, this court held that Moore was not entitled to relief because the district court properly instructed the jury on the presumption of innocence, the prosecutor discussed the state's high burden of proof in closing argument, and the misstatement was a small portion of the closing argument, which spanned 57 pages of transcript. Id. at 434.
We need not determine whether the prosecutor's description of the presumption of innocence in this case constitutes plain error because we are satisfied that the alleged error did not affect Portillo's substantial rights. See State v. Moore, 863 N.W.2d 111, 119 (Minn.App. 2015) ("If an appellate court concludes that any requirement of the plain-error test is not satisfied, the appellate court need not consider the other requirements"), rev. denied (Minn. July 21, 2015). To determine whether the misconduct significantly impacted the jury verdict, we consider "the pervasiveness of improper suggestions and the strength of evidence against the defendant." State v. Parker, 901 N.W.2d 917, 926 (Minn. 2017) (quotation omitted).
In this case the alleged misstatement occurred once in a closing argument that spanned 18 pages of transcript. And the single misstatement occurred in rebuttal closing argument, after defense counsel argued that the State had a high burden to prove its case beyond a reasonable doubt. Finally, the district court correctly described the presumption of innocence in its final jury instructions and instructed the jury to disregard any statements given by an attorney that differ from the law given by the court. We presume that the jury followed those instructions. State v. Pendleton, 706 N.W.2d 500, 509 (Minn. 2005).
In sum, the circumstances here are like those in Moore: the district court properly instructed the jury on the presumption of innocence, defense counsel discussed the state's high burden of proof in closing argument, and the alleged misstatement was a small portion of the closing argument as a whole. We are therefore persuaded that the alleged error did not affect Portillo's substantial rights, and he is not entitled to relief under the modified plain-error standard.
III.
Portillo contends that the cumulative effect of the alleged trial errors denied him a fair trial. A defendant "is entitled to a new trial if the errors, when taken cumulatively, had the effect of denying [him] a fair trial." State v. Yang, 774 N.W.2d 539, 560 (Minn. 2009) (quotation omitted). "When considering a claim of cumulative error, we look to the egregiousness of the errors and the strength of the state's case. Where the evidence of guilt is strong, and the case is not close factually, we are less inclined to order a new trial for cumulative error." State v. Williams, 908 N.W.2d 362, 366 (Minn. 2018) (quotations and citation omitted).
Portillo cites State v. Williams, 525 N.W.2d 538, 544 (Minn. 1994), and Bustos, 861 N.W.2d at 665, to support his request for relief under the cumulative-error standard. In Williams, the state elicited hearsay evidence that the defendant was a drug courier and introduced drug-courier-profile evidence as proof of the defendant's guilt. 525 N.W.2d at 544-45, 549. Admission of that evidence violated caselaw, and there was no indication in that case that the district court took steps to reduce the prejudicial impact of the evidence. In Bustos, the district court provided an incorrect jury instruction that "erroneously expanded the definition of domestic abuse" and precluded defense counsel from arguing that the state failed to prove at least two prior incidents of domestic assault beyond a reasonable doubt. 861 N.W.2d at 660-63. The court found that the district court's errors "seriously affected the fairness, integrity or public reputation of the judicial proceedings." Id. at 658.
The errors here are not as egregious as those in Williams and Bustos. And the resulting prejudice was minimal, as described in sections I and II of this opinion. We therefore conclude that the cumulative effect of the alleged errors did not deny Portillo a fair trial.
Affirmed.