This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
IN COURT OF APPEALS
State of Minnesota,
Pedro Charles Flores,
Cottonwood County District Court
File No. K498167
Mike Hatch, Attorney General, Thomas R. Ragatz, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
David P. Honan, Cottonwood County Attorney, Cottonwood County Courthouse, 1011 Fourth Avenue, Windom, MN 56101 (for respondent)
John M. Stuart, State Public Defender, Mary M. McMahon, Special Assistant Public Defender, McMahon & Associates Criminal Defense, Ltd., 2499 Rice Street, Suite 140, Roseville, MN 55113-3724 (for appellant)
Considered and decided by Schumacher, Presiding Judge, Kalitowski, Judge, and Halbrooks, Judge.
Following a second trial, appellant was convicted of 17 counts, including first-, third- and fourth-degree criminal sexual conduct for sexually abusing a 14-year-old girl, and acquitted of four other counts. Appellant challenges his convictions claiming that (1) the amended complaint constituted double jeopardy or violated due process where there is an appearance of vindictiveness, (2) the trial court abused its discretion by allowing an expert psychologist to testify about the process by which adolescent victims disclose sexual abuse, and (3) he was denied a fair trial due to prosecutorial misconduct. Because we conclude that (1) there was no evidence of vindictiveness when the prosecutor sought to amend the complaint to add counts involving sexual penetration because he first learned of the act of penetration while speaking with the victim in preparation for the second trial, (2) the trial court acted within its discretion in admitting the expert psychologist’s testimony, and (3) none of the alleged misconduct played a substantial part in influencing the jury to convict, we affirm.
When first tried, appellant Pedro Charles Flores pleaded guilty to one count of sale of marijuana and one count of possession of drug paraphernalia, and he was convicted by a jury of one count of furnishing alcohol to minors, and three counts of fourth-degree criminal sexual conduct. Appellant was acquitted of two counts of fifth-degree assault. Flores received a sentence of 36 months. Flores challenged his conviction. We reversed and remanded for a new trial based on prosecutorial misconduct in closing argument.
Three days before the second trial was to begin, the victim, M.B., disclosed to the prosecutor incidents of sexual penetration by Flores that she had not disclosed prior to the first trial. The prosecutor moved for and received a continuance, and after further investigation, moved to amend the complaint. The trial court granted the motion.
The jury in the second trial convicted Flores of one count of furnishing alcohol to minors, one count of possession of drug paraphernalia, two counts of first-degree criminal sexual conduct, two counts of second-degree criminal sexual conduct, four counts of third-degree criminal sexual conduct, four counts of fourth-degree criminal sexual conduct, two counts of fifth-degree assault, and one count of terroristic threats. The jury acquitted Flores of one count of the sale of a small amount of marijuana, one count of fourth-degree criminal sexual conduct, and two counts of fifth-degree criminal sexual conduct. The court sentenced Flores to 30 years’ imprisonment.
The evidence at trial included testimony that during the spring of 1998, 14-year-old M.B. often spent the night at the apartment of her friend, D.M. Flores, then 44, lived in the same apartment complex. After Flores gave the girls a ride home one afternoon, they began to spend time in his apartment because Flores allowed M.B. and D.M. to drink alcohol, smoke, watch television, and “do whatever [they] wanted.” Flores also assisted the girls in obtaining marijuana.
Flores made repeated sexual advances to M.B. in his apartment. He touched her buttocks, breasts, and vaginal area over her clothing, had her sit on his lap and told M.B. that he liked her breasts. On May 15, 1998, M.B. and D.M. went to a dance with Flores, his girlfriend, and some of D.M.’s family members. At the dance, Flores kissed M.B. and grabbed her breasts. Flores told the girls that, if they told no one about what he was doing to M.B., he would continue to supply them with alcohol and marijuana. While the others slept on the drive home from the dance, Flores put his hand up M.B.’s pant leg and tried to unzip her pants and put his hand underneath her shirt. Flores told M.B. that he would have drugs for her if she came to his apartment later. She complied, but there were no drugs. After watching television, Flores pulled M.B. onto his bed, tickled her, crossed her arms above her head, removed her pants and underwear, lowered his pants, “sat between [her] legs” and inserted his penis into her vagina, causing bleeding. Flores apologized to M.B. but warned her that he would tell her parents about her drug use and that he had friends who could hurt M.B. and her family if she told anyone about what had happened.
After two weeks of Flores’s requests for M.B. to return to his apartment, and promises not to hurt her, M.B. went there to ask Flores if he would drive her and D.M. somewhere. When Flores tried to kiss M.B., she attempted to get away. Flores blocked M.B., forced her onto his bed, slapped her and held a pillow over her face while she struggled, and inserted his penis into her vagina. On another occasion, Flores engaged in oral sex with M.B. The unlawful conduct was discovered through references in some notes passed between M.B. and D.M. at school that D.M.’s aunt found. In response, D.M.’s aunt informed the police.
D E C I S I O N
1. Double Jeopardy and Due Process
Flores asserts that the addition of more serious charges after the court of appeals reversed his convictions in the first trial amounts to double jeopardy. Appellate courts review claims of double jeopardy de novo. State v. Leroy, 604 N.W.2d 75, 77 (Minn. 1999). Double jeopardy bars multiple punishments for the same offense. State v. Alexander, 290 N.W.2d 745, 748 (Minn. 1980). But, when a conviction is overturned on direct appeal, the double jeopardy clause does not bar retrial for the previous charges. Hardwick v. Doolittle, 558 F.2d 292, 297 (5th Cir. 1977). A retrial that involves additional counts does not violate double jeopardy. Id. Therefore, double jeopardy did not prohibit Flores’s second trial in this matter.
Flores relies on State v. Holmes, a case in which the supreme court held that a harsher sentence following retrial for the same offense is improper as a matter of judicial policy. State v. Holmes, 281 Minn. 294, 296, 161 N.W.2d 650, 652 (1968). Here, Flores was sentenced to 36 months after his first trial, but received a 30-year sentence after his convictions in the second trial. This case is distinguishable from Holmes because the complaint against Flores was amended with additional charges before the second trial based on information the prosecutor first learned from M.B. as he prepared for retrial.
Flores also argues that when a case is reversed on appeal and a more serious charge is added, the Due Process Clause of the Fourteenth Amendment is violated if there is the appearance of prosecutorial vindictiveness. But, where the state did not increase the severity of the originally charged offense before a retrial, but instead added new and distinct counts to the complaint, the standard is vindictiveness in fact, rather than the apprehension of vindictiveness. Alexander, 290 N.W.2d at 749; Hardwick, 558 F.2d at 302.
A prosecutor may rebut Flores’s prima facie case of vindictiveness through explanations of how he used his prosecutorial discretion. Hardwick, 558 F.2d at 301. In Hardwick, the court remanded the case to allow the prosecutor to prove that the motive was not vindictive, id. at 302-03, whereas in Alexander, the supreme court chose not to remand when the first trial ended in mistrial, stating that the “state cannot be said to be retaliating against a defendant’s challenge to a victory by the state,” and there was a different prosecutor on retrial. Alexander, 290 N.W.2d at 749. On this record, the state refuted the allegation of vindictiveness by the prosecutor’s unchallenged explanation that he first learned of the instances of sexual penetration as he prepared for the second trial.
2. Expert Testimony
Flores argues that the trial court abused its discretion by admitting the testimony of Jane McNaught Stageberg, Ph.D., regarding the reasons that children delay reporting of sexual abuse. Expert testimony is generally admissible if
(1) it assists the trier of fact, (2) it has a reasonable basis, (3) it is relevant, and (4) its probative value outweighs its potential for unfair prejudice.
State v. Jensen, 482 N.W.2d 238, 239 (Minn. App. 1992) (citing State v. Schwartz, 447 N.W.2d 422, 424 (Minn. 1989)), review denied (Minn. May 15, 1992). But if the subject is a matter of general knowledge and
the jury is in as good a position to reach a decision as the expert, expert testimony would be of little assistance to the jury and should not be admitted.
State v. Saldana, 324 N.W.2d 227, 229 (Minn. 1982) (discussing rape-trauma syndrome and adult survivors of rape). But see State v. Myers, 359 N.W.2d 604, 610 (Minn. 1984) (finding that “the common experience of the jury may represent a less than adequate foundation for assessing the credibility of a young child who complains of sexual abuse.”).
Minnesota courts have addressed the admissibility of expert testimony concerning the characteristics typically displayed by victims of sexual assault. In Saldana, the supreme court considered the admissibility of the testimony of an adult victim’s rape counselor that described typical behavior of a rape victim, but also expressed the expert’s opinion that the alleged victim in that case had been raped. 324 N.W.2d at 229-31. The supreme court concluded that allowing an expert to state that the complainant was raped, because she exhibited signs consistent with rape-trauma syndrome, would prejudice the appellant and would not assist the jury. Id. at 230-31.
A similar issue was present in State v. Danielski, 350 N.W.2d 395 (Minn. App. 1984), where we held that expert testimony concerning the behavior associated with familial sexual abuse was inadmissible where the victim was 17 years old at the time of the trial and the prosecutor intended that the expert’s testimony would show that the victim’s behavior was consistent with having been a victim of sexual abuse. Id. at 398. The courts’ concern in both instances was that expert testimony on rape-trauma syndrome and familial sexual abuse is not the type of evidence that accurately and reliably determines whether a rape has occurred. Saldana, 324 N.W.2d at 229; Danielski, 350 N.W.2d at 397.
Following Saldana, the Minnesota Supreme Court found admissible testimony by an expert who had worked with a seven-year-old child. Myers, 359 N.W.2d at 609-612. The expert testified as to characteristics and traits typically observed in a sexually abused child and identified which of the traits she observed in the victim. Id. at 608-09. The expert did not testify as to her opinion that abuse had occurred, but that the child’s allegations had remained consistent throughout their meetings. Id. at 608. The court reasoned that, although an indirect effect of the testimony was to bolster the child’s credibility, that fact alone would not preclude the evidence. Id. at 609. The court permitted the expert testimony because “[b]y explaining the emotional antecedents of the victim’s conduct,” the expert “assist[ed] the jury in evaluating the credibility of the complainant.” Id. at 610 (citation omitted). The court also noted that expert testimony could help to explain the puzzling aspects of a young victim’s behavior, such as a lengthy delay in reporting abuse. Id.
In 1987, in a case involving sexual abuse of a 14-year-old girl, the supreme court held that
in cases where a sexual assault victim is an adolescent, expert testimony as to the reporting conduct of such victims and as to continued contact by the adolescent with the assailant is admissible in the proper exercise of discretion by the trial court, * * * .
State v. Hall, 406 N.W.2d 503, 505 (Minn. 1987). The court, however, cautioned that it was not establishing “a categorical rule that expert testimony concerning all characteristics typically displayed by adolescent sexual assault victims is admissible.” Id.
The clinical psychologist in Hall had not examined the victim and did not testify as to any specific observations of the victim or to her opinions as to the truthfulness of the allegations. Id. But the supreme court ruled that the trial court acted within its discretion by permitting the psychologist to testify concerning the behavioral characteristics typically displayed by adolescent victims of sexual assault, such as delay in reporting the abuse because of fear of being harmed and continued contact with the assailant due to a fear of retaliation. Id. at 504-05.
Here, the trial court ruled that Dr. Stageberg’s testimony was admissible under Hall, 406 N.W.2d at 505, because it would be helpful to the jury. Before ruling, the court had the benefit of in limine briefs on the issue from both counsel. In addition, M.B. testified immediately before the prosecution called Dr. Stageberg, and Flores’s attorney extensively cross-examined her on the issues of her delay in reporting any abuse and her ongoing contact with Flores while she later claimed the abuse was occurring.
Dr. Stageberg discussed the results of several research studies and testified as to the process by which children and adolescents disclose abuse. She admitted reviewing some of M.B.’s records, but unlike the expert in Saldana, Danielski, or Myers, Dr. Stageberg neither reached conclusions nor drew comparisons between the typical characteristics and behaviors of children and adolescents who have been abused and M.B.’s behaviors and allegations. On this record, we conclude that the trial court acted within its discretion in permitting Dr. Stageberg’s testimony.
3. Prosecutorial Misconduct
Flores contends that the prosecutor’s misconduct throughout trial and in closing argument was so serious that his constitutional right to a fair trial was impaired. Whether prosecutorial misconduct creates the need for a new trial rests within the discretion of the district court. State v. Wahlberg, 296 N.W.2d 408, 420 (Minn. 1980). Appellate courts review alleged misconduct in light of the whole record and reverse only where the misconduct was so serious and prejudicial that the defendant’s constitutional right to a fair trial was impaired. State v. Johnson, 616 N.W.2d 720, 727-28 (Minn. 2000). In cases involving serious misconduct, a reviewing court must determine whether the error was harmless beyond a reasonable doubt. State v. Caron, 300 Minn. 123, 127, 218 N.W.2d 197, 200 (1974). If misconduct of a less serious nature occurred, we reverse only if the misconduct likely played a substantial part in influencing the jury to convict. Id. at 128, 218 N.W.2d at 200.
An appellate court may consider several factors in determining the severity of the misconduct. These include the nature of the remarks, the atmosphere of the courtroom throughout the trial, and the cumulative effect of the improprieties. State v. Caldwell, 322 N.W.2d 574, 590 n.16 (Minn. 1982). The appellate court may also consider whether the district court gave a curative instruction to the jury and the number of objectionable comments in relation to the length of the trial. State v. Ture, 353 N.W.2d 502, 517 (Minn. 1984). Additionally, when a jury acquits a defendant of some counts while convicting on others, the acquittals may indicate that the prosecutor’s comments did not “unduly inflame” the jury. State v. Washington, 521 N.W.2d 35, 40 (Minn. 1994). Finally, a defendant may forfeit the right to appeal this issue if he fails to object or seek cautionary instructions. State v. Gunn, 299 N.W.2d 137, 138 (Minn. 1980). But even if the defense makes no objections, an appellate court has the discretion to reverse if the court deems the error sufficient to do so. Id.
A. Improper Questioning
Flores first argues that he was denied a fair trial when the prosecutor repeatedly asked leading questions of M.B. on direct examination. Based on our review of the transcript, we agree that the prosecutor phrased a number of his questions to M.B. in a leading fashion. Counsel for Flores objected to each, and the trial court consistently sustained the objections. “[A]sking a question to which an objection is sustained is not by itself evidence of prosecutorial misconduct.” State v. Steward, 645 N.W.2d 115, 122 (Minn. 2002). Misconduct in the form of improper questioning is “at most nonserious misconduct,” requiring “the harmless error analysis applicable to less serious prosecutorial misconduct.” Id. Under this analysis, the test is whether the misconduct likely played a substantial part in influencing the jury to convict. Caron, 300 Minn. at 128, 218 N.W.2d at 200.
Appellate courts look at certain factors to determine whether misconduct impermissibly influenced the jury to convict. Here, of the 122 pages of direct and redirect examination of M.B., the objectionable questions comprise a very small amount. See State v. Glaze, 452 N.W.2d 655, 662 (Minn. 1990) (finding no prejudice to defendant when remarks are isolated and do not represent the entirety of the record). Further, at both the beginning and the end of trial, the court instructed the jury that the attorneys’ words were not evidence. See Ture, 353 N.W.2d at 517 (considering whether the district court gave a curative instruction to the jury and the number of objectionable comments in relation to the length of the trial). It is also significant that the jury returned a verdict containing both convictions and acquittals. See Washington, 521 N.W.2d at 40 (holding that where the jury has acquitted the appellant of some counts, the acquittals may indicate that the prosecutor’s comments did not “unduly inflame” the jury). After examining the questions in light of the entire record, we conclude that any impropriety in the prosecutor’s questioning did not likely play a substantial part in influencing the jury to convict Flores.
B. Reference to Public Defender
Flores next argues that the prosecutor committed misconduct that denied him a fair trial by alluding to the fact that he was represented by a public defender. During cross-examination of Frank Serrao, owner and manager of the facility where the dance was held, the prosecutor asked Serrao, “Who did you understand hired that investigator?” Serrao responded, “Actually, it was the public defender.” Later, the prosecutor asked Jamie Reyes, an investigator hired by Flores’s counsel, “Did you understand that you were retained by the public defender? Excuse me, via [Flores’s] attorney * * * .” Flores’s counsel did not object to either reference at that time, but later, outside the presence of the jury, expressed his concern to the trial court. The court concluded that the reference to the public defender was inadvertent with respect to Reyes, but cautioned the prosecutor to refrain from referring to the public defender. Flores’s counsel declined the court’s offer of a curative instruction, concluding that it would draw unnecessary attention to the matter.
The trial court is in a better position than the appellate court to determine prejudice. State v. Reardon, 245 Minn. 509, 513 n.6, 73 N.W.2d 192, 195 n.6 (1955). Where the prejudice is unsubstantial, we leave the granting of a new trial to the court’s discretion. Id.; Wahlberg, 296 N.W.2d at 420. The trial court in this instance concluded that any potential prejudice was minimal. Because the prejudicial impact of the inadvertent references was both speculative and minimal, the trial court did not abuse its discretion.
C. Inadmissible Material
Flores next alleges that the prosecutor engaged in misconduct when he inquired into M.B.’s placement in Abbott House, a subject area that the pretrial order ruled inadmissible without prior notice to the court and counsel and a hearing outside the presence of the jury. The trial court found the prosecutor’s line of questioning, however brief, to be improper. We agree. It violated the terms of the pretrial order. But, having said that, the trial court also concluded that the harm was nonexistent or minimal. The court handled the matter by permitting Flores’s counsel to inquire into the same area on cross-examination. The record supports the trial court’s conclusion.
D. Closing Argument
Flores’s final allegation of prosecutorial misconduct concerns closing argument. Flores alleges the following three instances of misconduct within the prosecutor’s argument: (1) his argument that Flores’s attorney’s argument was a standard criminal-defense argument, (2) the prosecutor’s expression of his personal opinion about M.B.’s credibility, and (3) the prosecutor’s misstatement of Flores’s burden of proof. Flores’s counsel only objected to the third instance of alleged misconduct. The failure to object to improper statements or to seek curative instructions generally constitutes waiver of defendant’s right to raise the issue on appeal. State v. Torres, 632 N.W.2d 609, 617-18 (Minn. 2001). Counsel must object or ask for a curative instruction because “carefully worded instructions by the trial court can ameliorate the effect of improper prosecutorial argument.” State v. Brown, 348 N.W.2d 743, 747 (Minn. 1984). Because Flores waived, at least in part, his arguments of misconduct in closing argument by failing to make objections, we examine whether there was “unduly prejudicial” prosecutorial misconduct that requires relief. See State v. Whittaker, 568 N.W.2d 440, 450 (Minn. 1997) (stating that “a court may reverse a conviction despite the defendant’s failure to object or seek instructions if the prosecutor’s comments were unduly prejudicial.”).
Flores argues that the prosecutor engaged in misconduct because he suggested that the defense attorney’s argument was part of a syndrome of standard criminal-defense arguments. The prosecutor said:
There’s been a lot of discussion about a lot of other issues, and the joke about sometimes the defense attorney is they want to confuse, confound, complicate, the three c’s. Well, let’s focus on what’s really at issue here.
It is clearly improper for a prosecutor to suggest that the argument of defense counsel in a specific case is one of the standard arguments that defense counsel make in “cases of this sort.” State v. Salitros, 499 N.W.2d 815, 818 (Minn. 1993) (holding that it is improper for a prosecutor to argue in closing that defense attorneys throw in the collateral issues to get jury attention away from facts); cf. State v. Griese, 565 N.W.2d 419, 428 (Minn. 1997) (holding a few statements in closing argument insufficient to warrant a new trial because Salitros was considerably more egregious). Like Griese, the arguably improper statement made by the prosecutor does not rise to the level of the prosecutorial misconduct present in Salitros. We, therefore, conclude that the improper conduct was not so prejudicial that Flores was denied a fair trial.
Flores next argues that the prosecutor improperly expressed his personal opinion about M.B.’s credibility. The prosecutor stated:
You heard Officer Shirkey say he didn’t view my discussion with [M.B.] * * * [a]s in any way an attempt to coach her. If I don’t, from time to time, encourage reluctant witnesses to come forward and point out risks of not coming forward, I wouldn’t have anybody come and sit on this stage and go through this. I don’t apologize for encouraging her to come in here and tell the truth.
In another instance, the prosecutor stated, “She was afraid of the defendant, still is afraid of the defendant, and yet she got up on that stand and told you the truth.” Prosecutors may not personally endorse a witness’s credibility. State v. Porter,526 N.W.2d 359, 365 (Minn. 1995) (holding that bolstering a witness testimony by implying without support that she received special judicial recognition for her skill is misconduct); cf. State v. Googins, 255 N.W.2d 805, 806 (Minn. 1977) (noting that a prosecuting attorney has a right to argue that the state’s witnesses were credible).
We conclude that the prosecutor’s comments, although brief in the overall context of the argument, were improper. But the prosecutor’s remarks do not appear to have substantially affected the jury’s verdict because the cumulative effect of the individual remarks was insignificant, the jury’s verdict included acquittals, and both the court and the prosecutor expressed to the jury that they should not consider the words of the attorneys as evidence. See Washington, 521 N.W.2d at 40-41 (finding that the prosecutor’s remarks did not substantially influence the jury where the remarks were isolated, the judge instructed the jury that the prosecutor’s remarks were not evidence, and the defendant was acquitted of some counts).
Finally, Flores argues that the prosecutor engaged in misconduct because his comments confused the jury by implying that Flores had a burden of proof. The burden of proof rests on the state to prove each element of an offense beyond a reasonable doubt. State v. Auchampach, 540 N.W.2d 808, 816 (Minn. 1995). A prosecutor’s comments on a defendant’s failure to contradict the state’s evidence improperly suggest that a defendant must prove his innocence. Porter, 526 N.W.2d at 365. Misstatements of the burden of proof are highly improper and may constitute prosecutorial misconduct. State v. Hunt, 615 N.W.2d 294, 302 (Minn. 2000).
Here, the prosecutor made one statement in an effort to argue that neither party was claiming that the touching was accidental. The prosecutor stated:
You should also bear in mind that no one’s claiming that any of this was accidental. The defendant has not presented any evidence that the touching * * * [was] in any way accidental. * * * Neither [D.M.] or the defendant, nor [M.B.] has made any such claims with regard to the issues here.
The prosecutor also stated, “The burden’s totally on the State, but in choosing to bring forth evidence, was there any credible evidence to support the claim that he didn’t do it?” If the prosecutor’s statement was improper, it was harmless considering the overall context of the argument, the fact that the court upheld Flores’s counsel’s objection, and the trial court’s instruction to the jury on the state’s burden of proof. Because we conclude that the alleged prosecutorial misconduct did not play a substantial part in influencing the jury to convict, we affirm.
 Hardwick notes in dicta that an example of proof would be where evidence of additional crimes may not have been obtained until after the first indictment was filed. 588 F.2d at 301.