This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat ß 480A.08, subd. 3 (2000).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C2-00-568

 

 

State of Minnesota,

Respondent,

 

vs.

 

Jose Isabel Cavazos,

Appellant.

 

 

Filed February 20, 2001

Affirmed

Lansing, Judge

 

Kandiyohi County District Court

File No. K0981374

 

Mike Hatch, Attorney General. Thomas R. Ragatz, Assistant Attorney General, 525 Park Street, #500, St. Paul, MN 55103; and

 

Boyd Beccue, Kandiyohi County Attorney, 316 Southwest Fourth Street, Willmar, MN 56201 (for respondent)

 

Lawrence Hammerling, Deputy State Public Defender, Sharon E. Jacks, Assistant Public Defender, 2829 University Avenue, Suite 600, Minneapolis, MN 55414 (for appellant)

 

††††††††††† Considered and decided by Stoneburner, Presiding Judge, Lansing, Judge, and Peterson, Judge.

U N P U B L I S H E D†† O P I N I O N

LANSING, Judge

††††††††††† Jose Cavazos appeals his convictions for first-degree and second-degree criminal sexual conduct and incest, contending that the district court committed plain error by admitting quantitative, statistical probability evidence.† Because Cavazos has failed to show that the alleged error affected substantial rights, we affirm.

FACTS

††††††††††† Thirteen-year-old A.C. visited her doctor in October 1998 because she had not had her menstrual period since June or July.† After examining her, A.C.ís doctor told her that she was pregnant and asked for the name of the father.† A.C. initially denied that she was sexually active, but then told her doctor that her grandfather, appellant Jose Cavazos, was the father.† A.C.ís doctor reported the information to the county sheriff.† The state initially charged Cavazos with first-degree and second-degree criminal sexual conduct and incest, but later amended the complaint to include two counts of first-degree and two counts of second-degree criminal sexual conduct and incest.

Cavazos denied the charges.† At trial, A.C. testified that Cavazos had sex with her on a Sunday in May or June of 1998.† She testified to the details of the sexual conduct.† A.C. further testified that Cavazos had touched her inappropriately several other times.† A.C.ís mother, A.C.ís doctor, and the investigating police officer testified to statements that A.C. had made about the sexual conduct.† The state also introduced into evidence a videotaped interview of A.C. conducted by the investigating officer and a social worker.† Cavazos testified that he had never had sex with A.C. and that he had never touched her inappropriately.

The state presented two expert witnesses who testified to the results of DNA tests that they had performed.† The first expert, James Iverson, a forensic scientist with the Bureau of Criminal Apprehension, testified that he had performed DNA testing on samples from Cavazos, A.C., and A.C.ís baby using the polymerase chain reaction (PCR) method.† Based on his testing, Iverson testified that he could not exclude Cavazos as the biological father of A.C.ís baby and that 99.9994% of individuals chosen at random from the general population could be excluded as the biological father of A.C.ís baby.

††††††††††† The second expert witness, Dr. Elizabeth Perry, an associate medical director at Memorial Blood Centers of Minnesota, testified that she supervised the DNA testing performed on blood samples drawn from Cavazos, A.C., and A.C.ís baby using the restriction fragment length polymorphism (RFLP) method.† Dr. Perry further testified that the parentage index in this case was 1063.1, which indicates that Cavazos is 1063.1 times more likely to be the biological father of A.C.ís baby than a random man from a similar population, and that the likelihood of paternity was 99.906%.† At trial Cavazos did not object to the admissibility or challenge the validity of the DNA evidence.

††††††††††† The jury found Cavazos guilty on all five counts charged in the complaint, and the district court imposed two consecutive 86-month terms of imprisonment on the two convictions of first-degree criminal sexual conduct.† Cavazos appeals his conviction, arguing that the district court committed plain error by permitting the DNA experts to testify and present reports about the statistical probability that he was the father of A.C.ís baby.

D E C I S I O N

A defendantís failure to object to an alleged error during trial ordinarily forfeits the right to review.† Rairdon v. State, 557 N.W.2d† 318, 323 (Minn. 1996).† A defendant may, however, obtain appellate review of plain errors that affect substantial rights and deprive a defendant of a fair trial.† Id.; Minn. R. Crim. P. 31.02 (2000).† Because Cavazos did not object to the admission of the statistical-probability evidence at trial,† we review his claims under the plain-error standard.† To establish the existence of plain error, a three-prong test must be satisfied:† (1) there must be an error; (2) the error must be plain; and (3) the error must affect substantial rights.† State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998)).† If the three prongs are satisfied, the reviewing court must determine whether addressing the error will ensure the fairness and integrity of the proceedings.† Id.

The initial question is whether the district court erred in admitting the statistical-probability evidence.† As a preliminary matter, it must be emphasized that Cavazos does not challenge the basic validity of the DNA evidence or its admissibility in a nonquantitative form.† Rather, Cavazos argues that the state was not permitted in this case to present the DNA evidence in the form that it did, i.e., in the form of quantitative, statistical-probability evidence.† This discussion, therefore, is limited to the precise issue of whether the district court erred by permitting the experts to testify to the statistical results of their DNA analysis.

††††††††††† In Minnesota, the general rule is that quantitative, statistical-probability evidence is inadmissible in criminal prosecutions to prove identity.† State v. Bloom, 516 N.W.2d 159, 160 (Minn. 1994).† In Bloom, however, the Minnesota Supreme Court carved out a DNA exception to this general rule of inadmissibility.† The Bloom exception provides that a properly qualified expert ďmay, if evidentiary foundation is sufficient, give an opinion as to random match probability using the [National Research Councilís interim ceiling] approach to computing that statistic.Ē† Id. at 167.

††††††††††† In this case, neither of the experts testified that they used the NRCís interim ceiling method in computing their statistical results.† Thus, facially, and by the strict terms of Bloom, it would appear that it was error for the district court to allow the experts to testify to the statistical results of their DNA testing.†

Relying on Bloom to provide a standard for plain error in the admissibility of DNA testing procedures is problematic.† Much has changed since the Bloom decision was written in 1994, and consequently Bloom has become a dated decision with respect to DNA testing.† When Bloom was decided in 1994, the NRC advocated the use of the interim ceiling method; however, in 1996, based on advances in DNA testing procedures, the NRC determined that ďthe interim ceiling principle is not needed and can be abandoned.Ē† National Research Council, The Evaluation of Forensic DNA Evidence 159 (1996).

†In addition, in 1994, RFLP analysis was the predominantly used method of DNA testing.† Kenneth R. Kreiling, DNA Technology in Forensic Science, 33 Jurimetrics J. 449, 452 (1993).† PCR analysis became more common after the Bloom decision was written.† Karla K. Hotis, Note, The Admissibility of PCR-Based DNA Evidence:† State v. Lyons, 37 Jurimetrics J. 495, 495 (1997).† The interim ceiling method, however, ďis not applicable to PCR-based systems.Ē† National Research Council, supra, at 158.† Accordingly, it would appear that under Bloomís narrow exception, statistical results based on PCR-based DNA testing would never be admissible; however, ď[o]ther state courts that have analyzed statistical calculations for PCR-based testing almost always have held these numbers admissible.Ē† Hotis, supra, at 504.† Certainly Bloom did not intend to freeze the form of statistical evidence admissible in Minnesota and to never allow for subsequent developments in DNA technology, such as PCR-based testing.† To the contrary, the supreme court has considered and upheld a conviction that relied in part on PCR-based testing.† See State v. Schneider, 597 N.W.2d 889 (Minn. 1999) (discussing testing procedures but not ruling on issue of admissibility of† PCR test results).

Ideally, our review of whether it was plain error to permit the expertsí statistical testimony would be based on a record with expert scientific testimony on the validity of the testing methods.† But Cavazosís failure to object at trial to foundation or admissibility short-circuited the record-building process.† And the state did not ameliorate the problem by independently providing the foundational evidence at trial or in a 702 hearing.† See Minn. R. Evid. 702 (permitting disclosure of facts or data underlying expert opinion).†

††††††††††† But because Cavazos must satisfy all three prongs of the plain-error test, a definitive decision on the continuing validity of the Bloom standard may not be necessary to determine this appeal.† Under the third prong of the plain-error test, the reviewing court must determine whether the alleged error affected substantial rights.† Griller, 583 N.W.2d at 741.† To affect substantial rights, the error must be prejudicial and must have affected the outcome of the case.† Id.† Cavazos bears the heavy burden of persuasion on this issue.† Id.†† Plain error is prejudicial if there is a reasonable likelihood that it substantially affected the verdict.† Id.

††††††††††† It is true that the statistical-probability evidence was probative on the issue of whether Cavazos was the father of A.C.ís baby and, thus, on the issue of guilt.† This was not the only evidence before the jury with respect to the issue of Cavazosís guilt, however.† The state presented several other strong pieces of evidence of Cavazosís guilt, particularly A.C.ís testimony.† A.C. testified that Cavazos had had sex with her and had touched her inappropriately on several occasions.† Similarly, (1) A.C.ís doctor testified that upon learning that she was pregnant, A.C. had stated that Cavazos was the father of the baby; (2) the investigating officer testified that A.C. had told him that Cavazos had had sex with her and had touched her inappropriately on several occasions; and (3) A.C.ís mother testified that A.C. had told her that Cavazos had abused her.† Further, the first expert witness, Iverson, testified within the strictures of Bloom that his test could not exclude Cavazos as the father.† The jury was also able to watch A.C.ís videotaped interview with the investigating officer and the social worker, in which A.C. stated that Cavazos had had sex with her and gave the same details that she provided in her testimony.

††††††††††† The jury returned a verdict finding Cavazos guilty on all counts.† There is no way for this court to determine the exact reason for the juryís verdict.† But the significant and powerful evidence of Cavazoís guilt that was not based on statistical-probability evidence leads us to conclude that Cavazos was not denied a fair trial and that the jury would have arrived at the same verdict without the statistical-probability evidence.

†††††††††† Cavazos attempts to discredit A.C.ís testimony by noting that A.C. did not tell the investigating officer during the first interview that Cavazos had touched her inappropriately on other occasions.† On this issue, A.C. testified that she was too scared at first to tell the investigating officer about the other times.† The investigating officer testified that it is not unusual for sexual-assault victims to make revelations over a period of time and that it is not unusual for a child to delay reporting.† Based on this testimony, it was entirely reasonable for the jury to find, as it must have, that A.C. was not fabricating new allegations but that she had a good reason for not telling the investigating officer about the previous incidents during the first interview.

††††††††††† Cavazos also attempts to discredit A.C.ís testimony by stating that her story changed throughout the proceedings.† This is an inaccurate characterization of her testimony.† As the state properly notes, A.C. has never equivocated about who sexually assaulted her.† Her recount of the sexual contact that took place in June of 1998 has been consistent from the first time that she spoke about it to the investigating officer to the time that she testified in court with Cavazos present.

Given the strong evidence against Cavazos, we conclude that he has failed to meet his heavy burden of proving that the alleged error affected his substantial rights.† Even if the statistics were improperly admitted, there is no reasonable likelihood that such an error substantially affected the juryís verdict.

Affirmed.