This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. 480A.08, subd. 3 (2000).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

CX-00-1726

 

State of Minnesota,

Respondent,

 

vs.

 

Juan Alfonso Rios,

Appellant.

 

Filed July 31, 2001

Reversed and remanded

Randall, Judge

Concurring specially, Schumacher, Judge

 

Watonwan County District Court

File No. K9-00-40

 

 

Mike Hatch, Attorney General, Brent D. Wartner, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and

 

LaMar Piper, Watonwan County Attorney, 615 Second Avenue South, P.O. Box 109, St. James, MN 56081 (for respondent)

 

John M. Stuart, State Public Defender, Michael F. Cromett, Assistant State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)

 

 

Considered and decided by Randall, Presiding Judge, Schumacher, Judge, and Anderson, Judge.

 

U N P U B L I S H E D O P I N I O N

R.A. RANDALL, Judge

Appellant challenges his conviction of first-degree witness tampering and fifth-degree criminal sexual assault, arguing that the district court abused its discretion by allowing the state to amend its complaint to include a new and different offense after both parties had rested but before they had presented their closing arguments. Appellant also argues that the prosecutor committed misconduct in his closing argument, which warrants a new trial. We reverse and remand.

FACTS

The state's original complaint against appellant Juan Alfonso Rios alleged that "between January 19 and 21, 2000," appellant committed four counts of first-degree witness tampering under Minn. Stat. 609.498, subd.1 (a), (d), (e), (f) (1998), and one count of fifth-degree criminal sexual assault under Minn. Stat. 609.3451, subd. 1 (1998).

At trial, the victim testified that on January 19, 2000, appellant forced her to drive into the country where appellant committed the sexual assault. The victim also testified that after appellant allowed her to drive back into town and before appellant got out of her car, appellant unzipped his pants, pulled out his penis, and asked her for oral sex, which the victim did not perform.

The victim also testified that appellant had threatened her on January 24, 2000, by calling her a bitch and telling her that he would come after her if she pressed charges. The victim's friend testified that on January 21, 2000, she picked up appellant while she was driving around with other friends so that they could hear appellant's side of the story. The friend testified that appellant told her that if the victim pressed charges, he would ruin the victim's life or kill her, punching the back of the vehicle's seat to emphasize his point. The testimony concerning both of these events was consistent with the victim's and her friend's statements to police after the incidents occurred, and appellant was aware of these statements before trial.

After both parties rested, appellant moved to dismiss two of the four counts of first-degree witness tampering, in part because they related to the events on January 24 and that date was not part of the original complaint. The court granted appellant's motion to dismiss two of the counts of first-degree witness tampering. In response, the state moved to amend its complaint to include January 24, which encompassed the victim's testimony regarding appellant's witness tampering. The court agreed that the complaint was defective and allowed the state to amend its complaint to include January 24. Accordingly, the two remaining counts of witness tampering became four separate counts:

Count I: First-degree witness tampering under Minn. Stat.  609.498, subd. 1(d), based on the events of January 21.

 

Count II: First-degree witness tampering under Minn. Stat.  609.498, subd. 1(d), based on the events of January 24.

 

Count III: First-degree witness tampering under Minn. Stat.  609.498, subd. 1(f), based on the events of January 21.

 

Count IV: First-degree witness tampering under Minn. Stat.  609.498, subd. 1(f), based on the events of January 24.

 

The jury found appellant guilty of both counts of witness tampering involving January 21 and fifth-degree criminal sexual assault. This appeal followed.

D E C I S I O N

I. Amended Complaint

The matter of allowing amendments to complaints is within the district court's sound discretion and will not be reversed absent abuse of that discretion. Gerdes v. State, 319 N.W.2d 710, 712 (Minn. 1982) (determining whether district court abused its discretion by allowing state to amend its complaint after evidence had been presented at trial). A complaint may be amended before a verdict is reached and after jeopardy has attached if no additional or different offense is charged and if the defendant's substantial rights are not prejudiced. State v. Bluhm, 460 N.W.2d 22, 24 (Minn. 1990); see also Minn. R. Crim. P. 17.05 (discussing circumstances under which complaint may be amended). A different offense is charged if the amendment affects an essential element of the charged offense. Gerdes, 319 N.W.2d at 712. If the date of the offense is not an essential element of the crime, then the district court may allow the state to amend its complaint so that it "comports with the evidence presented at trial." Id.

Appellant asserts that he did not have notice "that the allegations from January 24, 2000, would be transformed into separate charges after trial was completed." On the other hand, the state asserts that the amendment merely changed the date of the offenses, which was not an essential element of the crimes, so rule 17.05 was not violated.

We disagree with the state's argument on this point. If a defendant allegedly commits the same act on the same victim on two separate dates, the state is allowed to charge the defendant with two separate offenses. Cf. State v. Eaton, 292 N.W.2d 260, 266-67 (Minn. 1980) (finding two offenses of check theft committed three days apart were separate incidents for sentencing purposes). Different dates and separate offenses means that the defendant must prepare a separate defense for each. Here, the original complaint alleged that appellant committed witness tampering between January 19 and 21. These charges pertained to the victim's friend's allegation that appellant made threatening statements about the victim in the friend's presence. After the victim testified that appellant threatened her face-to-face on January 24 and after both sides had rested, the state moved to amend the complaint to include January 24. The practical effect of the amendment was to create separate charges against appellant, which constituted new or additional offenses.

Although we have determined that the amendments to the complaint created new or additional offenses, we conclude that appellant's substantial rights have not been violated. Rule 17.05 is intended "to protect against confusing the jury, violating due process notions of timely notice, and adversely affecting" the defense's trial tactics. State v. Alexander, 290 N.W.2d 745, 748 (Minn. 1980). Here, appellant's attorney admitted at trial that she knew she would have to prepare a defense for witness tampering based on the events of January 24. This is in contrast to the facts of State v. Guerra, 562 N.W.2d 10 (Minn. App. 1997), a case on which appellant heavily relies. In Guerra, at the beginning of trial, the defendant, the state, and the court all believed that the charge against the defendant was based on the events of a particular date. Id. at 13. After the trial began, the district court allowed the state to reopen its case to present evidence of a similar crime allegedly committed by the defendant, which involved a different date. Id. at 12. At the trial's conclusion, the court allowed an amendment to the jury instructions to reflect this new evidence and date. Id. On appeal, this court concluded that the amended complaint prejudiced the defendant's substantial rights because there was a "lack of notice and an opportunity to prepare a defense," and the amendment confused the jury, required a substantially different defense, and adversely affected the defendant's trial tactics. Id. at 14.

Here, the amendment did not catch appellant totally by surprise, require a substantially different defense, or interfere with his trial tactics. Appellant even presented an alibi witness to account for his whereabouts on January 24. After the complaint was amended, appellant did not object to the district court's instructions to the jury regarding the charges as modified. Most importantly, the jury found appellant not guilty of both first-degree witness tampering charges involving January 24. See State v. Sanoski, 377 N.W.2d 503, 506 (Minn. App. 1985) (citing State v. Ashland, 287 N.W.2d 649, 650 (Minn. 1979) (declining to decide whether district court erred by granting amendment to complaint when jury did not convict defendant on charges stemming from amendment). We understand appellant's concern that the amended offenses may have influenced the jury to compromise by finding him not guilty of the amended offenses and guilty of the other offenses. But the record does not demonstrate that the jury compromised in reaching its verdict. See Id. (stating defendant's contention that submission of amended counts to jury allowed it to compromise verdict is speculative).

Because appellant's substantial rights were not violated, we conclude that, on these facts, the district court did not commit reversible error by allowing the state to amend its complaint. We point out, however, that it is permissible for the district court to consider giving defense counsel the option of presenting further evidence if the court allows the state to amend its complaint after the state rests. Also, the state can only move to amend based on what is already in the record; if it is not in the record, the state has no business moving to amend a formal complaint after both sides have closed their cases and rested.

II. Prosecutorial Misconduct

Appellant argues that the prosecutor committed misconduct in his closing argument by expressing his personal opinion regarding the victim's credibility, appellant's lack of credibility, and appellant's guilt; shifting the state's burden of proof to appellant; misstating the presumption of innocence; and injecting race into the trial. Appellant contends that the prosecutor's misconduct was so serious that it warrants reversal of appellant's conviction and a new trial.

A defendant has a duty to promptly object or seek curative instructions if the prosecutor makes an improper statement during closing argument. State v. Brown, 348 N.W.2d 743, 747 (Minn. 1984). Generally, a defendant who fails to do so has forfeited his right to review on appeal. Rairdon v. State, 557 N.W.2d 318, 323 (Minn. 1996).

Here, appellant did not object to any of the prosecutor's allegedly improper comments, and he did not seek curative instructions. Because appellant failed to do so, we review his claim under the plain error rule, which asks whether the alleged conduct was

so clearly erroneous under applicable law and so prejudicial to the defendant's right to a fair trial that the defendant's right to a remedy should not be forfeited.

 

State v. Hunt, 615 N.W.2d 294, 302 (Minn. 2000) (citation omitted). A conviction may be reversed prophylactically when a prosecutor persists in committing misconduct. State v. Salitros, 499 N.W.2d 815, 820 (Minn. 1993). Also, "prosecutorial misconduct may result in a new trial where the interest of justice so requires." State v. Porter, 526 N.W.2d 359, 366 (Minn. 1995); see State v. Merrill, 428 N.W.2d 361, 373 (Minn. 1988) (warning that court will not tolerate prosecutors' use of improper tactics and that prosecutors can expect reversal if such tactics such are employed). As the supreme court has previously advised:

We have on occasion warned the prosecution in our opinions that it has used improper tactics. However, these warnings appear to have been to no avail. * * *

 

We thus specifically warn St. Louis County and prosecutors generally for the last time that we will no longer tolerate the tactics used by the prosecution in closing arguments in this case. The prosecution can expect a reversal if such tactics are used again.

 

Id.

When reviewing allegations of prosecutorial misconduct, a reviewing court must look at the prosecutor's argument as a whole to determine if reversal is warranted. State v. Washington, 521 N.W.2d 35, 40 (Minn. 1994). The cumulative effect of a prosecutor's statements may provide a basis for reversal. See State v. Schwartz, 266 Minn. 104, 113, 122 N.W.2d 769, 775 (1963) (stating assignments of error, taken together, may create sufficient prejudice to affect fairness of trial).

A. Prosecutor's Personal Opinion

The prosecutor has the right to argue that a state's witness is worthy of credibility based on the prosecutor's analysis of the evidence. State v. Googins, 255 N.W.2d 805, 806 (Minn. 1977). But, the prosecutor may not express a personal opinion about the witness's credibility. Porter, 526 N.W.2d at 364. Further, a prosecutor "may state conclusions and inferences [that] the human mind may reasonably draw from the facts in evidence," but he must not offer his opinion as substantive evidence of a defendant's guilt. State v. Gulbrandsen, 238 Minn. 508, 511, 57 N.W.2d 419, 422 (1953).

First, appellant argues that the prosecutor committed misconduct by injecting his personal opinion by using the phrase "I think" in portions his closing argument.[1]  Second, appellant asserts that the prosecutor inappropriately commented on the victim's credibility, appellant's lack of credibility, and appellant's guilt during closing argument. Third, appellant challenges the prosecutor's injection of personal opinion concerning the credibility of the victim and appellant. Regarding the victim, the prosecutor told the jury:

Criminal cases * * * in real life are not like they are on TV. Frequently * * * on TV the victim is always virtuous, she is good looking, she speaks well, she is bright, she remembers things, * * * and we like her. We like the victims usually we see on TV. In real life frequently victims of crimes may be foolish, they may be not [too] bright, * * * they're not perfect people. And we don't submit to you or argue to you that [the victim in this case] is the perfect person, but the question is:  Is she credible? I think the answer is yes. Was she a brilliant witness? No. Was she credible? Yes.

 

The prosecutor also discussed appellant's credibility, his lack of candor with the police, and a possible motivation for appellant to not be candid with the jury and summarized his assertion that appellant was not credible by stating:

[H]e just stiffed [the police]. No names, no address[es], no nothing. But every time [the police] want to know, [Mr. Rios] I have got witnesses, I am going to file statements. Didn't do any of that. And you can infer from that that Mr. Rios is not being candid with you. And I think that's the only fair inference. And accordingly, I would ask you to find Mr. Rios guilty on all of the counts * * * .

 

Finally, appellant challenges the prosecutor's statement about appellant's guilt. After reading the jury instructions associated with the witness tampering charges against appellant under Minn. Stat. 609.498, subd. 1(d), the prosecutor told the jury, "I think it's clear that Mr. Rios [met the elements of the offense]."

We agree with appellant's argument and conclude that the prosecutor's statements, taken as a whole, were seriously inappropriate. The tenor of these statements is indicative of the prosecutor's entire closing argument, and in light of the other portions of the argument discussed below, we conclude that the cumulative effect prejudiced appellant's right to a fair trial. Although any one statement, standing alone, might not be so prejudicial as to mandate a new trial, the cumulative effect of these statements and the statements discussed below convinces us that appellant's rights were prejudiced.


B. Presumption of Innocence

"[T]he prosecutor, to be fully safe, should try to adhere as closely as possible to the normal statement of the presumption [of innocence]." State v. DeVere, 261 N.W.2d 604, 606 (Minn. 1977).

Appellant argues that the prosecutor misstated the law regarding the presumption of innocence by stating:

The fact that a defendant is presumed innocent doesn't mean that he is innocent. * * * If we [prove beyond a reasonable doubt that the defendant is guilty], the presumption disappears and you make that decision.

 

(Emphasis added.)

The jury instruction relating to the presumption of innocence states, in part, that "[t]his presumption remains with the defendant unless and until the defendant has been proven guilty beyond a reasonable doubt." 10 Minnesota Practice, CRIMJIG 3.02 (1999) (emphasis added). Based on this instruction, the prosecutor's statement that "the fact that a defendant is presumed innocent doesn't mean that he is innocent" is improper, as it directly contradicts the presumption of innocence. The prosecution can argue that they proved the essential elements of the crime charged beyond a reasonable doubt and asked the jury to return the verdict they seek. But that argument is better made without the preceding statement.

C. Shifting of the Burden of Proof

If demonstrated, a prosecutor's misstatements of the burden of proof are highly improper and constitute misconduct. Hunt, 615 N.W.2d at 302. "A prosecutor may not comment on a defendant's failure to call witnesses or to contradict testimony" in part because it "may suggest to the jury that the defendant bears some burden of proof." Porter, 526 N.W.2d at 365 (citations omitted).

Appellant challenges several of the prosecutor's statements involving appellant's failure to produce witnesses to discuss his whereabouts on the dates the state alleged he had committed the sexual assault and witness tampering, arguing that the statements impermissibly shifted the burden onto appellant to prove his innocence.

The prosecutor suggested to the jury that if appellant's story that he was at his friends' houses on January 24 was truthful, then "[h]e had these people, if he was telling the truth to you, that he had stopped at." The prosecutor then pointed out that appellant did not give police the names of his alibi witnesses for January 21. Next, the prosecutor stated, "Let's talk about whether he had witnesses." The prosecutor told the jury:

[H]e is saying in essence, trust me folks, I didn't do this. But who does he live with? He lives with [his uncle]. He lives with mom and dad. He lives with sister one and sister two. He lives with his brother. There are six people in that house, and he is there all week, only goes out for smokes or only goes out [to drive around]. And there is nobody except him that says it could not have been Johnny, because that boy was home watching TV by 11:00 every night. Nobody that he lives with. * * * [His uncle] didn't say I can tell you, ladies and gentlemen of the jury, that my nephew, Johnny Rios, on the night of the 19th of January was in bed with dreams of sugar plums dancing in his head or anything like that. So he had -- every time the officer would say something, Mr. Rios would say I have got a witness. And do you see those witnesses or hear about them in January? In February? No. March? No. April? No. May? No.

 

The state asserts that the prosecutor's comments related to appellant's alibi theory, and thus did not amount to misconduct. Contrary to the state's assertion, the prosecutor's comments impermissibly shifted the burden onto appellant. Although the court gave the jury proper instructions regarding the state's burden of proof, the evidence against appellant was not overwhelming, and the evidence boiled down to a he-said-she-said argument. To find appellant guilty of fifth-degree criminal sexual conduct, the jury had to believe the victim's story over appellant's story. Similarly, to convict appellant of first-degree witness tampering based on the events of January 21, the jury had to find that the victim's friend's story was more credible than appellant's story. Because the evidence against appellant was not overwhelming, the prosecutor's burden shift onto appellant denied appellant a fair trial despite proper jury instructions and appellant's failure to object to the prosecutor's statements. See State v. Brown, 348 N.W.2d 743, 747 (Minn. 1984) (concluding prosecutor's statements that shifted burden onto defendant likely did not influence jury where evidence against defendant was strong, defendant did not object, and district court provided jury with proper instructions regarding burden of proof).

D. Injection of Race

A prosecutor must refrain from inflaming the jury's passions or "otherwise seek to distract the jury from its proper role of deciding whether the state has met its burden." State v. Ashby, 567 N.W.2d 21, 27 (Minn. 1997) (citation omitted). A reviewing court "will pay special attention to statements that may inflame or prejudice the jury where credibility is a central issue." Id. (quotation omitted).

Appellant argues that the prosecutor impermissibly injected race into the trial during his closing argument and attempted to portray to the jury that appellant had a "Machiavellian mind" and decided to plead not guilty, counting on a break from "nice white folks." This is a verbatim quote from the oral argument, where the prosecutor stated:

There is only one witness out in the country with me, and that is [the victim]. She says I did it, I say I didn't, what are [the jurors] going to do? They're all nice white folks, they are going to be a little nervous about convicting. I say no, she says yes.

 

Appellant asserts that this portion of the prosecutor's argument was intended to inflame the jury, was racially biased, and constituted serious misconduct. We agree.

By describing the jury as "nice white folks" the prosecutor implied that he thinks that appellant does not believe that the jury has the fortitude to convict a minority defendant, so the state wants the jury to "show appellant that he is wrong." The phrase was used to inflame the jury and to remind them (of the obvious) that a white woman claimed she had been sexually assaulted by an Hispanic male. The statement has the serious potential to distract the jury from determining whether the state had met its burden and to increase the likelihood that it would find appellant guilty, which constitutes misconduct. See Salitros, 499 N.W.2d at 817 (admonishing prosecutor may not seek conviction at any price); State v. Turnbull, 267 Minn. 428, 435, 127 N.W.2d 157, 162-63 (1964) (stating where credibility was central to ultimate issue, prosecutor's statement that may have inflamed or prejudiced jury requires new trial). We are only puzzled by what the state would have argued had the defendant been white, and a number of jurors been minorities. Perhaps, "Now all you nice folks of color, you don't have any reason to take it easy on this defendant. He has already received all the breaks he is entitled to, as you can plainly see, he is white."

Under a plain error analysis, we conclude that the prosecutor's entire closing argument, taken together, was serious misconduct, was prejudicial, and infringed upon appellant's right to a fair trial. Appellant is entitled to another one. See Porter, 526 N.W.2d at 363-66 (reversing and remanding where prosecutor, among other things, improperly appealed to jury's passions and prejudices, distorted state's burden of proof, and alluded to defendant's failure to contradict testimony).

Reversed and remanded.

 

 

SCHUMACHER, ROBERT H., Judge (concurring specially)

I concur in the result.

 



[1] Examples of the prosecutor's challenged comments include: "Now the thing that makes this incident important and pivotal, I think, is that [appellant's] position is it did not happen." "[Appellant] knew that this was not a very sophisticated and not a very suave or smooth young lady. He knew that she probably had been over anxious in regard to his uncle, and he thought hey, if she likes my uncle, she can like me. She wants to be with him, she can be with me. I think that's what happened here." "I think it was clear that, that she was infatuated with [appellant's uncle], and she hoped that there would be some relationship. * * * And as I indicated before, I think that [appellant] thought hum, if [my uncle] doesn't want her, I will see what I can do, and that's the bottom line." "I think its clear that [appellant] attempted intentionally to prevent or dissuade by means of force or threats * * * ." "And you can infer from that that [appellant] is not being candid with you. And I think that's the only fair inference."