This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Abundio Hernandez Mireles,
Filed June 8, 2004
Watonwan County District Court
File No. KX-02-245
John M. Stuart, State Public Defender, Lydia Villalva Lijό, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for Mireles)
Mike Hatch, Attorney General, Thomas R. Ragatz, Rory H. Foley, Assistant Attorneys General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and
La Mar Piper, Watonwan County Attorney, Watonwan County Courthouse, 710 Second Avenue South, P.O. Box 109, St. James, MN 56081 (for respondent)
Considered and decided by Wright, Presiding Judge; Schumacher, Judge; and Willis, Judge.
On appeal from his conviction of third-degree criminal sexual conduct, appellant argues that (1) the district court erred when, without first obtaining appellant’s consent on the record, it instructed the jury not to draw any inference of guilt from appellant’s failure to testify; (2) appellant did not properly waive his right to testify; (3) the state committed prejudicial misconduct in closing argument by characterizing the offense as “rape” and making comments about appellant’s character; (4) the cumulative effect of otherwise harmless errors requires a new trial; and (5) there is insufficient evidence of force or coercion to support the conviction. We affirm.
From December 2001 to May 2002, appellant Abundio Mireles and D.P.C. were involved in an extramarital affair. The affair ended when Mireles reconciled with his wife in early May 2002. During this time, D.P.C. was pregnant and expecting to deliver in early June 2002.
D.P.C. and Mireles separately attended a wedding dance on the night of May 26, 2002. At approximately 1:45 a.m. on May 27, Mireles went to D.P.C.’s apartment building in St. James. D.P.C. let Mireles into the building through the secured entrance. They went up to D.P.C.’s apartment, sat on her couch, and talked.
According to D.P.C., Mireles asked her to have sex with him. When she refused, Mireles pushed her down on the couch. Against D.P.C.’s physical resistance, Mireles removed D.P.C.’s pants and underwear. He then removed his clothing and engaged in vaginal intercourse, which hurt D.P.C. At some point, Mireles bit D.P.C. on the cheeks and left breast. She subsequently explained that, during the affair, biting and giving hickeys had been part of their consensual sexual activity.
After D.P.C. refused to perform oral sex on Mireles, Mireles forced D.P.C. to do so. Mireles then had vaginal intercourse with D.P.C. a second time. Afterwards, D.P.C. experienced pain in her lower abdomen. She also sustained a bruise on her neck, a bite mark on her shoulder, and a bruise on her left breast.
On the night of May 29, Mireles returned to D.P.C.’s apartment building, where the two had an argument near the entrance. Later that night, D.P.C. and a friend called the police and reported the sexual assault. D.P.C. recounted the details of the assault twice—at a May 31 interview by a St. James police officer and at a June 5 appointment with her doctor.
Mireles was charged with two counts of first-degree criminal sexual conduct, in violation of Minn. Stat. § 609.342, subd. 1(c), (e)(i) (2000). A plea hearing was originally scheduled to begin on November 5, 2002, but Mireles failed to appear. Mireles was arrested in Wisconsin and returned to Minnesota. Mireles claimed that his nonappearance was prompted by his lack of confidence in his public defender. Based on these events, the parties reached a stipulation that was read to the jury at trial. It provided in relevant part, “when [Mireles] appeared in court after his return to Minnesota, he stated that he did not have faith in his attorney, and he did not feel that his attorney was defending him.” The same counsel went on to represent Mireles at the jury trial.
At trial, the state called three witnesses—D.P.C., her doctor, and the St. James police officer. Mireles did not present any evidence, and neither the district court nor the parties made any statements regarding Mireles’s decision not to testify.
In advance of the charge conference, the district court submitted proposed jury instructions to the parties for their review. These instructions included CRIMJIG § 3.17, which instructs the jurors not to draw any inference from the fact that a defendant does not testify. See 10 Minnesota Practice, CRIMJIG § 3.17 (4th ed. 1999). While the parties were addressing the proposed instructions, counsel for Mireles advised, “That needs to stay in, your honor, about the not testifying, because that is what happened.” When the district court instructed the jury based on CRIMJIG § 3.17, Mireles did not raise any objections. The jury received a written copy of the instructions to use during their deliberations.
During closing arguments, the state repeatedly referred to the offense as a “rape.” The state also said,
[I]t appears [Mireles] is used to getting his own way. [D.P.C.] told you that he called her, told her he was coming over; told her to let him in. And even on the tape when we see their interactions, the State believes that someone could conclude that [Mireles] does not like taking no for an answer.
. . . .
[H]e is not in a position to give anybody orders. But he gave orders [to D.P.C.] and expected them to be followed.
Mireles did not object to these statements. In Mireles’s closing arguments, counsel for Mireles specifically responded to the use of the word “rape,” arguing that it was an attempt to manipulate the jury’s emotions. In its final instructions following the arguments of counsel, the district court instructed the jury not to rely on arguments of counsel as evidence.
The jury acquitted Mireles of first-degree criminal sexual conduct and convicted him of the lesser-included offenses of third- and fifth-degree criminal sexual conduct. This appeal followed.
In a criminal case where the defendant fails to preserve an objection at trial but substantial rights are affected, we review for plain error. State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998). Reversal is not warranted unless there is an obvious error that is likely to have affected the jury’s verdict. State v. Ihle, 640 N.W.2d 910, 916 (Minn. 2002); see also Johnson v. United States, 520 U.S. 461, 466-67, 117 S. Ct. 1544, 1549 (1997). If plain error arises out of jury instructions, we reverse only if the instructions were “misleading or confusing on fundamental points of law.” Ihle,640 N.W.2d at 916. The burden of demonstrating that the verdict was affected rests with the defendant. See id.
Under the United States and Minnesota constitutions, the privilege against self-incrimination gives a defendant the right not to testify. U.S. Const. amend. V; Minn. Const. art. I, § 7; see also State v. Rosillo, 281 N.W.2d 877, 879 (Minn. 1979). To preserve this privilege, neither the district court nor the prosecution may ask the jury to infer guilt from a defendant’s silence. Griffin v. California, 380 U.S. 609, 614-15, 85 S. Ct. 1229, 1233 (1965); McCollum v. State, 640 N.W.2d 610, 617 (Minn. 2002); see also Minn. Stat. § 611.11 (2000). This privilege is not violated when the district court instructs the jury not to infer guilt from a defendant’s silence. Lakeside v. Oregon, 435 U.S. 333, 340-41, 98 S. Ct. 1091, 1095 (1978); accord, State v. Thompson, 430 N.W.2d 151, 153 (Minn. 1988).
Even though CRIMJIG § 3.17 is intended to protect a defendant from adverse inferences, merely giving the instruction may adversely call attention to the defendant’s failure to testify. Thus, before giving the instruction, the district court should obtain permission from the defendant on the record. Thompson, 430 N.W.2d at 153. Failure to do so is error. State v. Darris, 648 N.W.2d 232, 240 (Minn. 2002); McCollum, 640 N.W.2d at 617 (holding that, unless a party objects to the instruction, the party cannot assign error to the instructions).
This error, however, does not automatically entitle the defendant to reversal or a new trial. Thompson, 430 N.W.2d at 153. In the context of plain-error analysis, giving the instruction without the defendant’s express permission is harmless unless the defendant can show a reasonable likelihood that it significantly affected the jury’s verdict. Darris, 648 N.W.2d at 240. Moreover, we presume that the jury followed the instruction. See State v. Taylor, 650 N.W.2d 190, 207 (Minn. 2002). Because the instruction is intended to protect the defendant, the likely impact on the verdict is minimal. Thompson, 430 N.W.2d at 153.
Mireles argues that, because the district court neither informed him of the significance of the instruction nor obtained his permission, the district court committed reversible error requiring a new trial. The same error was alleged in Darris. 648 N.W.2d at 240. In conducting a plain-error review, the Darris court concluded that there was no reasonable likelihood that this error affected the verdict in a homicide case. Id. Based on the record here, Mireles similarly has failed to establish that the error was prejudicial. Accordingly, we conclude that reversal on this basis is unwarranted.
Incident to the privilege against self-incrimination, a defendant also has the right to testify. State v. Walen, 563 N.W.2d 742, 751 (Minn. 1997). The decision whether to testify belongs to the defendant and cannot be made by defense counsel. Id. If the record shows that the defendant did not testify and there is no other indication of how the defendant made this decision, it is presumed that the defendant voluntarily and intelligently waived the right to testify. State v. Smith, 299 N.W.2d 504, 506 (Minn. 1980).
Mireles argues that his counsel did not diligently ascertain whether he wanted to testify. This assertion is not supported anywhere in the record. The record does include evidence of some mistrust between Mireles and his counsel, but it does not specifically indicate how they resolved Mireles’s right to testify. As a result, the record does not rebut the presumption that Mireles voluntarily and intelligently waived his right to testify. See Smith, 299 N.W.2d at 506 (finding that defendant’s silence on the record supported presumption of waiver).
When a defendant fails to preserve an objection to prosecutorial misconduct at trial, the issue is waived on appeal, and we review only for plain error. State v. Johnson, 672 N.W.2d 235, 239-40 (Minn. App. 2003), review denied (Minn. Mar. 16, 2004). Notwithstanding the failure to object, we will reverse the conviction where the misconduct is “unduly prejudicial.” State v. Whittaker, 568 N.W.2d 440, 450 (Minn. 1997).
Misconduct occurs when the state
appeals to passion or prejudice and distracts the jury from deciding, based on
the evidence submitted at trial, whether the state has met its
burden of proof beyond a reasonable doubt. State v. Ashby, 567 N.W.2d 21, 27 (Minn. 1997). We consider the alleged misconduct in the context of the entire trial to determine whether the defendant was denied a fair trial. State v. Powers, 654 N.W.2d 667, 678 (Minn. 2003).
Some actions may reduce the potential prejudicial effect of prosecutorial misconduct. For example, the district court may instruct the jury not to rely on arguments of counsel as evidence, State v. Ture, 353 N.W.2d 502, 516-17 (Minn. 1984), or defense counsel may use the closing argument to respond to the misconduct, State v. McDaniel, 534 N.W.2d 290, 294 (Minn. App. 1995), review denied (Minn. Sept. 20, 1995). Strong evidence for conviction also mitigates the effect of misconduct. State v. Bradford, 618 N.W.2d 782, 800 (Minn. 2000). In addition, some circumstances may permit an inference that any prosecutorial misconduct that occurred did not substantially affect the verdict. Acquittal of accompanying charges, for example, demonstrates that the jury conscientiously considered the evidence, rather than resorting to passion or prejudice. State v. DeWald, 463 N.W.2d 741, 745 (Minn. 1990).
Mireles points to two possible incidents of misconduct in the state’s closing argument. First, Mireles argues that the state’s repeated use of the word “rape” to describe the offense appealed to the jury’s passion or prejudice. We disagree. By definition, rape is a forcible sexual assault. American Heritage Dictionary 1498 (3d ed. 1992). It accurately describes the charges against Mireles. See Minn. Stat. § 609.342 subd. 1(c), (e)(i) (2000) (providing that forcible sexual penetration is first-degree criminal sexual conduct). Although “rape” has strong emotional connotations, the state is not required to make a colorless argument. See Rairdon v. State, 557 N.W.2d 318, 323 & n.5 (Minn. 1996). In the context of the state’s entire argument, we conclude that the state’s use of the term “rape” did not constitute prosecutorial misconduct.
More problematic is the state’s description of Mireles as someone who “does not like taking no for an answer” and who “gave orders and expected them to be followed.” Where character evidence about the defendant is not properly introduced, it is misconduct to argue to the jury that the offense was committed in conformity with the defendant’s bad character. State v. Washington, 521 N.W.2d 35, 39 (Minn. 1994). The state’s description of Mireles may have distracted the jury from a dispassionate examination of the evidence, inviting a judgment based on Mireles’s predisposition to “give orders.” But in the context of the entire argument, it is a close question whether these statements reach the level of prosecutorial misconduct.
Even if these statements were misconduct, reversal is not warranted unless the misconduct likely affected the jury’s verdict. See Johnson, 672 N.W.2d at 239-40. We conclude, based on the record as a whole, that it is not likely that the misconduct affected the verdict. The district court instructed the jury not to rely on the arguments of counsel as evidence. Most importantly, the jury returned a verdict of acquittal on the most serious charge. Because we conclude that the misconduct was not unduly prejudicial, Mireles’s arguments for reversal on this ground are unavailing.
Under some circumstances, the cumulative effect of multiple harmless errors may deny a fair trial and, therefore, require reversal. State v. Litzau, 650 N.W.2d 177, 180 (Minn. 2002). This remedy ordinarily is granted in close cases with several errors. See, e.g., State v. Ware, 498 N.W.2d 454, 459 (Minn. 1993); State v. Underwood, 281 N.W.2d 337, 340 (Minn. 1979); State v. Duncan, 608 N.W.2d 551 (Minn. App. 2000). In a criminal sexual conduct case, cumulative error usually comprises a series of evidentiary and procedural errors that seriously prejudice the defendant. See, e.g., State v. Peterson, 530 N.W.2d 843, 848 (Minn. App. 1995) (substantial errors from jury instructions, hearsay evidence, prosecutorial misconduct); State v. Jahnke, 353 N.W.2d 606, 609 (Minn. App. 1984) (extensive questioning on irrelevant and prejudicial matters).
Mireles argues that, even if each error in this case is harmless, cumulatively they require reversal and a new trial. Only two of the alleged errors are substantiated, and neither error was unduly prejudicial. In addition, the state presented a strong case, and the errors alleged here are not commensurate with other cases where reversal was warranted. Accordingly, Mireles’s cumulative-error claim also must fail.
Our review of a claim of insufficient evidence is limited to a careful analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, is sufficient to allow the jurors to reach a guilty verdict. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). We assume that the jury believed the testimony that supports the conviction and disbelieved any evidence to the contrary. State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989). We will not disturb the verdict if the jury, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, reasonably could conclude that the defendant was guilty of the charged offense. State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).
Mireles’s sole argument is that, for the charge of third-degree criminal sexual conduct, the evidence is insufficient to establish that the sexual penetration was achieved by force or coercion. “A person who engages in sexual penetration with another person is guilty of criminal sexual conduct in the third degree . . . if . . . the actor uses force or coercion to accomplish the penetration.” Minn. Stat. § 609.344, subd. 1(c) (2000). “Force” is defined as
the infliction, attempted infliction, or threatened infliction by the actor of bodily harm or commission or threat of any other crime by the actor against the complainant or another, which (a) causes the complainant to reasonably believe that the actor has the present ability to execute the threat and (b) if the actor does not have a significant relationship to the complainant, also causes the complainant to submit.
Minn. Stat. § 609.341, subd. 3 (2000).
There is sufficient evidence of force or coercion when the victim promptly reported the offense, there were marks on the victim consistent with a struggle, and the victim consistently recounted the offense. State v. Bettin, 295 N.W.2d 542, 545 (Minn. 1980). Moreover, sufficient evidence of force or coercion may be inferred where, as here, the victim testifies that she did not consent to intercourse. Holmes v. State, 394 N.W.2d 818, 822 (Minn. App. 1986).
D.P.C.’s uncontradicted testimony is that Mireles used force to accomplish the penetration. This testimony is corroborated by D.P.C.’s consistent statements and the marks on her body. When this evidence is viewed in the light most favorable to the verdict, the evidence is unquestionably sufficient for a jury to find Mireles guilty of third-degree criminal sexual conduct.
 CRIMJIG § 3.17 provides:
The state must convince you by evidence beyond a reasonable doubt that the defendant is guilty of the crime charged. The defendant has no obligation to prove innocence. The defendant has the right not to testify. This right is guaranteed by the federal and state constitutions. You should not draw any inference from the fact that the defendant has not testified in this case.
10 Minnesota Practice, CRIMJIG § 3.17. The written jury instructions submitted to the jury include this instruction verbatim. But when the instruction was read to the jury, the district court slightly altered the instruction by saying, “The defendant has the right to testify, and he has the right not to testify.”
 As discussed above, it may be inferred from the record that Mireles actually requested the no-adverse-inference instruction when his counsel stated, “That needs to stay in, your honor, about the not testifying, because that is what happened.”
 We note that a postconviction proceeding would have provided Mireles with the opportunity to make a record of the interaction with his defense counsel. See State v. Walen, 563 N.W.2d 742, 750 (Minn. 1997); Hauwiller v. State, 295 N.W.2d 641, 643 (Minn. 1980). But that opportunity is not available in a direct appeal.