This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. §480A.08, subd. 3 (2002).








State of Minnesota,





Fernando DeLaCruz,




Filed February 5, 2003

Reversed and remanded

Robert H. Schumacher, Judge


Renville County District Court

File No. K201294



Mike Hatch, Attorney General, John B. Galus, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and


David J. Torgelson, Renville County Attorney, Commerce Building, Post Office Box D, Olivia, MN 56277 (for respondent)


John M. Stuart, State Public Defender, Theodora Gaitas, Assistant Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN 55414 (for appellant)



            Considered and decided by Halbrooks, Presiding Judge, Schumacher, Judge, and Wright, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant Fernando DeLaCruz challenges his conviction of a single count of second-degree criminal sexual conduct, in violation of Minn. Stat. § 609.343, subd. 1(a) (2000).  DeLaCruz contends that (1) the district court committed plain error by failing to give a specific unanimity instruction to the jury; (2) the district court erred by failing to obtain his permission before instructing the jury on his right not to testify; and (3) the evidence presented at trial was not sufficient to sustain the jury's verdict.  We reverse and remand.


            During the summer of 2000, C.C., then age ten, lived with her mother, sister (L.C), and brother in a rural home with her mother's boyfriend, Loy Anderson.  DeLaCruz and his girlfriend were also living in the home at that time.  Late that summer, C.C. told L.C. that DeLaCruz had touched her "top" and "private part."  L.C. told DeLaCruz's girlfriend and DeLaCruz's girlfriend told C.C.'s mother what C.C. had said.

Eventually, C.C. spoke to a school counselor.  The counselor contacted the police and C.C. was interviewed by Officer Frank Berg on April 12, 2001.  He conducted a videotaped and audiotaped interview of C.C.  She described to him the afternoon on which DeLaCruz approached her while she was watching television in the living room and moved his hand back and forth on her "private part."  C.C. also told Berg that a couple of days later DeLaCruz came into her bedroom, opened her pants, and placed his hand under her underwear.  She told Berg this occurred at least two or three times.

Berg filed a complaint charging DeLaCruz with criminal sexual conduct in the second degree.  The complaint stated:

On or about June 1, 2000 and continuing through August 31, 2000, within the County of Renville, Defendant engaged in sexual contact with another person and the complainant was under 13 years of age and the actor was more than 36 months older than the complainant, to-wit:  Defendant on several occasions touched the breast and vagina of C.C., a 10 year old female.


At trial, C.C. testified about three separate incidents of abuse during that summer.  She testified that one incident occurred while she was sitting on the couch in the living room watching television when DeLaCruz sat next to her and touched her "private part" over her clothing for about a minute.  The second incident occurred while C.C. was in her bedroom playing and DeLaCruz touched her "private part" and "breasts" over her clothes.  C.C. further testified that on one occasion, she was in DeLaCruz's room and he had her touch his "private part" over his clothes and he threatened that "something would happen" if she told anyone.

C.C.'s mother testified that she did not report the alleged abuse to the police because her previous experience with the police in Mexico led her to believe that the police in the United States would do nothing.  Mother decided to move out of Anderson's house.  Mother further testified that C.C. would say she had a headache or otherwise try to avoid the subject when mother attempted to talk to her about the alleged abuse.  L.C. testified that she had observed DeLaCruz touching C.C. in an inappropriate manner while wrestling with or tickling her. 

During jury instructions, DeLaCruz's attorney did not request a specific unanimity instruction or object to the instructions as a whole.  The jury found DeLaCruz guilty as charged.  


1.         A trial court has broad discretion in determining the language of jury instructions and this court will not reverse a decision concerning jury instructions absent an abuse of discretion.  State v. Vazquez, 644 N.W.2d 97, 99 (Minn. 2002).  Typically, when an error in the jury instructions is not objected to, it may not provide the basis for a subsequent appeal.  State v. Cross, 577 N.W.2d 721, 726 (Minn. 1998).  This court may nonetheless review the error if it is plain and affects a substantial right.  Minn. R. Crim. P. 31.02.; State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998).

The Minnesota Supreme Court has adopted the three-prong test for plain error, as set forth by the United States Supreme Court.  Griller, 583 N.W.2d at 740.  Before this court will review an unobjected-to error, "there must be (1) error; (2) that is plain; and (3) the error must affect substantial rights."  Id. When the test is satisfied, the court must decide whether or not it should address the error in the name of fairness and to safeguard the integrity of the judicial process.  Id.

Generally, Minnesota law does not permit the trial of a criminal defendant on one count of criminal conduct when separate acts are alleged without requiring (1) that the state identify the particular act on which it will rely to convict or (2) that the court instruct the jury that it must decide unanimously which act the accused committed.  State v. Stempf, 627 N.W.2d 352, 356 (Minn. App. 2001).

C.C. testified to three separate incidents of sexual abuse, each occurring in a different room of the home.  Although C.C. could not specify the dates on which these acts occurred, she could distinguish three separate acts.  See generally State v. Eggert, 358 N.W.2d 156, 160 (Minn. App. 1984) (holding that state need not prove specific dates or times in child sexual abuse cases).  In another case in which the child victim testified only to an undifferentiated course of sexual conduct, we might construe that course of conduct as the "act" on which the jury had to agree.  But here some of the jurors could have believed that the incident in C.C.'s bedroom occurred but not the incident in the living room.  See Stempf, 627 N.W.2d at 358 (noting some jurors could have believed one act of possession occurred, while others relied on other act of possession).

The defense did not rest solely on a general attack on C.C.'s credibility but also argued that the living room incident was implausible and that C.C.'s account of the incidents had changed over time.  Therefore, we conclude it was plain error, affecting DeLaCruz's substantial rights, to fail to give a specific unanimity instruction.  Because we find other error also impacting DeLaCruz's right to a fair trial, we need not decide whether this error by itself undermined the integrity of the judicial process. 

2.         Ordinarily the trial court should obtain the defendant's permission to instruct the jury on the defendant's right not to testify.  State v. Thompson, 430 N.W.2d 151, 153 (Minn. 1988).  When the trial court gives an instruction regarding the defendant's right not to testify in his defense without the defendant's consent, the conviction must be overturned unless the error was harmless.  See id.  As DeLaCruz points out, it is difficult to honor the defendant's right to refuse to testify without drawing attention to it.  In Minnesota, the decision to instruct the jury on the defendant's right to testify is left to the defendant.  See id.

The district court sua sponte instructed the jury that it "should not draw any inference from the fact that [DeLaCruz] has not testified in this case."  Such an instruction calls the jury's attention to the defendant's silence.  McCollum v. State, 640 N.W.2d 610, 617 (Minn. 2002).  That could be especially critical in a case, such as this, lacking any physical evidence where credibility is the central issue.  We also note that it may be particularly unfair to call to the jury's attention to the silence of a defendant who, because English is not his native language, may have legitimate concerns about his ability to communicate fully from the witness stand.

In order to obtain reversal for the trial court's giving the no-adverse-inference instruction without obtaining the defendant's consent, it must be shown that there is a reasonable likelihood that the instruction had a significant effect on the jury's verdict.  State v. Darris, 648 N.W.2d 232, 240 (Minn. 2002).   Although the giving of the no-adverse-influence instruction by itself may not have had a significant impact on the verdict, we need not decide that issue because the trial court also erred in failing to give a specific unanimity instruction.

This court may determine that, although individual instances of trial error are harmless by themselves, they cumulatively operate to deny the defendant a fair trial.  State v. Duncan, 608 N.W.2d 551, 558 (Minn. App. 2000), review denied (Minn. May 16, 2000).  Here, the trial court's failure to give a specific unanimity instruction allowed the possibility that the jurors convicted DeLaCruz despite disagreeing on what act the state had proven.  This inevitably diluted DeLaCruz's defense, which relied in part on the implausibility of one of the incidents.  The force of that defense could also have been weakened by the no-adverse-inference instruction, which, despite its literal language, could have caused the jury to be suspicious of any defense that was not presented by DeLaCruz personally from the stand.  Although, as discussed below, the evidence was certainly sufficient to convict DeLaCruz, this case was "relatively close," id., and the cumulative effect of both errors denied DeLaCruz his right to a fair trial.

3.         Although we have determined that DeLaCruz is entitled to a new trial, we address his claim of insufficient evidence which, if established, would bar further prosecution.  See State v. Harris, 533 N.W.2d 35, 36 n.1 (Minn. 1995).

When reviewing a challenge to the sufficiency of the evidence at trial, this court cannot retry facts.  State v. Johnson, 568 N.W.2d 426, 435 (Minn. 1997).  Instead, the evidence presented at trial must be viewed in the light most favorable to the state and it must be assumed that the jury believed the evidence in favor of its verdict and disbelieved that to the contrary.  Id.  If the jury has given due consideration to the presumption of innocence and the prosecution's burden of proving the charge beyond a reasonable doubt, the verdict will not be overturned.  See id

At trial, C.C. personally testified to three occurrences of inappropriate touching by DeLaCruz.  In her taped statement, she alluded to other instances.  Although C.C.'s mother and sister gave corroborating testimony regarding C.C.'s statements, in a criminal sexual conduct prosecution the testimony of the victim need not be corroborated.  See Minn. Stat. § 609.347, subd. 1 (2000).  Considering this, and viewing C.C.'s testimony in the light most favorable to the state, her testimony alone is sufficient to sustain the jury's verdict of guilty.  See State v. Merrill, 274 N.W.2d 99, 111 (Minn. 1978).

Reversed and remanded.