This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-1652

 

State of Minnesota,

Respondent,

 

vs.

 

Severo Rosas Cuellar,

Appellant.

 

 

Filed August 9, 2005

Affirmed

Gordon W. Shumaker, Judge

 

Clay County District Court

File No. K9-04-10

 

 

Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

Lisa Borgen, Clay County Attorney, Jenny Samarzja, Assistant Clay County Attorney, 807 North 11th Street, P.O. Box 280, Moorhead, MN 56561-0280 (for respondent)

 

Ira W. Whitlock, Whitlock Law Office, 300 Degree of Honor Building, 325 Cedar Street, St. Paul, MN 55101 (for appellant)

 

            Considered and decided by Willis, Presiding Judge; Klaphake, Judge; and Shumaker, Judge.

U N P U B L I S H E D   O P I N I O N

GORDON W. SHUMAKER, Judge

Appellant challenges his convictions of first-degree criminal sexual conduct, terroristic threats, and second-degree assault.  He argues that he was denied his right to trial by an impartial jury when jurors who knew the prosecutor and police officers and who had daughters who had been victims of abuse sat on the jury.  Appellant also argues that the prosecutor committed prejudicial misconduct by stressing her own ties to the community in voir dire, by belittling appellant on cross-examination, and by asking improper questions.  Finally, appellant argues that the pretrial statement of the victim, his wife, which she recanted at trial, was insufficient to support the conviction.  We affirm.

FACTS

A jury found appellant Severo Rosas Cuellar guilty of criminal sexual conduct, terroristic threats, and assault against his wife, I.C.  He contends that the jury was not impartial, the prosecutor committed misconduct, and the evidence was insufficient to support the verdicts.

Cuellar and I.C. went to a dance on January 3, 2004.  They left their two sons, both under age two, with I.C.’s sister in an upstairs unit of the triplex in which the Cuellars lived.  The event that gave rise to the prosecution of Cuellar occurred when the couple returned home at around 2:30 a.m. on January 4, 2004.  The jury heard three versions of that event.

Cuellar testified that he and I.C. had “passionate, rough” consensual sex on their couch.  I.C. just threw her clothes anywhere and her pants were ripped when the couple tried to remove them.  After the sex, Cuellar told I.C. that he was no longer attracted to her and that he was going to leave her for a woman he worked with.  He stated that I.C. looked fat and that the other woman was “skinnier” and “prettier.”  The couple argued.  At some point, Cuellar went to the bathroom and returned to the couch without zipping his pants.  He sat on the couch watching television with his genitals exposed and fell asleep.  When he awoke, police officers were in his house, and he learned that his wife had accused him of forcing sex upon her.

I.C. testified that she and Cuellar had consensual sex.  Then they argued about various things.  When Cuellar told I.C. that he was going to leave her for another woman, he also said he would kill himself.  He took a knife from a kitchen drawer and said he would fall on it and kill himself.  The couple continued to argue, and Cuellar said he would be leaving the next morning.  I.C. decided that she would get him in trouble with the police because “if he didn’t want to be with me, I didn’t want him to be with nobody else.”  She decided to tell the police that Cuellar threatened her and forced her to have sex with him.  To make her story believable, she made red marks on her neck with her fingernails to make it look like Cuellar cut her with the knife, and she went upstairs to her sister’s apartment to call the police.

When the police arrived, I.C. told them that Cuellar had threatened to kill her with a knife; that he ripped her clothing and forced her to perform oral sex on him; that he threatened to cut off her breast and feed it to the baby; that he said he was going to stab her by pushing the knife through the baby; that he rubbed the knife against her neck; and that he forcibly penetrated her vagina with his penis and his fingers.  At trial, I.C. admitted that she told all of this to the police, but she testified that none of it was true.

D E C I S I O N

1.         Impartial Jury

            Although Cuellar did not challenge for cause any of the jurors in his trial, did not otherwise object to any of them serving on the jury, and, in fact, affirmatively passed the entire panel for cause, he now contends that five of the jurors were not fair and impartial, and, thus, he did not receive a fair trial.  The basis for his contention on appeal is that five of the jurors had “conflicts” that were not adequately explored by his attorney or by the prosecutor or presiding judge.  Yet Cuellar has not raised an ineffective-assistance-of-counsel claim on appeal.

            By not challenging any of the five jurors at trial, Cuellar has forfeited a review under the Stufflebean criteria, which require a showing that (1) a challenged juror was subject to a challenge for cause; (2) actual prejudice resulted from the district court’s failure to dismiss that juror; and (3) the defendant made the appropriate objection.  State v. Stufflebean, 329 N.W.2d 314, 317 (Minn. 1983).

            By not making a claim that his attorney’s conduct of the voir dire was so inadequate that Cuellar was denied the effective assistance of legal counsel, he has waived that issue for review.  State v. Butcher, 563 N.W.2d 776, 780 (Minn. App. 1997), review denied (Minn. Aug. 5, 1997).

            Cuellar argues that the prosecutor and the judge were obliged to ask questions about the alleged conflicts of the five jurors, but he cites no authority for such an obligation.  Without authority for a proposition on appeal, we will not review the merits of that proposition.  Dougherty v. State Farm Mut. Ins. Co., 683 N.W.2d 855, 858 n.1 (Minn. App. 2004). 

            Cuellar suggests that we apply an implied-bias approach to this case, even though he concedes that the Minnesota courts have rejected that approach in reviewing claims of bias by jurors.  Because Minnesota has not recognized that approach, we decline to apply it.

            It is clear that, having passed the jury for cause, Cuellar cannot complain on appeal that cause for a challenge existed.  In State v. Thieme, 281 Minn. 47, 51, 160 N.W.2d 396, 398 (Minn. 1968), the supreme court stated that a juror challenge not made at the trial cannot be made on appeal, explaining, “It is too late to raise this issue now.  Any other rule would give defendant a greater right of challenge than is accorded him by statute and would extend an invitation to every defendant to leave unchallenged any objectionable juror only to raise the objection upon appeal.”

            Even though the rule in Thieme settles Cuellar’s contention about the lack of impartiality of five of the jurors, we have examined the record of the voir dire process so as to clearly understand Cuellar’s claim.  He complains that juror Newman knew the prosecutor and worked with the prosecutor’s brother but that no one asked questions about those disclosures.  He notes that juror Zollar knew police officers in the case but was allowed to remain on the jury.  He indicates that juror Hellerud had served on a previous case in which there was a criminal-sexual-conduct charge that was prosecuted by the same prosecutor.  And he states that jurors Burnside and Butler had daughters who had been victims of abuse but no one asked about their ability to be fair and impartial.  Cuellar urges that “[t]]he defense attorney, prosecutor and court had an obligation to remove these jurors from Appellant’s case.”

            We have indicated above that Cuellar cites no authority for the alleged obligation of either of the attorneys or the judge to remove any of the five jurors.  The record shows that the court did not in any way restrict the defense attorney in his voir dire questions.  The defense attorney was afforded the proper number of peremptory challenges, and the court did nothing expressly or impliedly to discourage appropriate challenges for cause.  Furthermore, nothing in the record of the voir dire reveals that any of the five jurors could have been successfully challenged for cause under the criteria of the controlling rule of criminal procedure.  Minn. R. Crim. P. 26.02, subd. 5 (2004).

            In its introduction of the case, the court told the venire panel that it would be necessary to ask questions to ensure “a fair trial by an impartial jury.”  Defense counsel asked the entire panel if anyone would “have a problem because of the subject matter being fair and impartial in a case of this nature?”  Defense counsel also asked many prospective jurors if particular things about the case or the people involved in it would cause them to be unfair or would have any bearing on the jurors’ ability to be fair and impartial.  And defense counsel did ask specific questions about the alleged conflicts of some of the five jurors.  He asked juror Zollar if his acquaintance with a police officer in the case would have any bearing on his fairness and impartiality.  He asked juror Burnside about his prior jury experience.  He also asked Mr. Burnside questions about the abuse of his daughter.  The prosecutor, early in her voir dire examination, explained to one juror, “I want a fair and impartial juror, just like [defense counsel], and just like the judge wants.”  It was made clear by the attorneys and the judge that the collective effort was to obtain a fair and impartial jury and that the panel members’ backgrounds and experiences were relevant to that purpose.  It is a reasonable inference that any panel member who felt he or she could not be fair would have disclosed that fact.

            Besides the actual voir dire questions, each panel member gave answers to questions on a written questionnaire.  There were 15 questions that called for yes or no answers and for explanations of yes answers.  The topics covered included having been the victim of or witness to a crime; having been physically or sexually abused or assaulted; having held employment that required the reporting of physical or sexual abuse; and having heard from friends or relatives who stated they had seen persons who were physically or sexually abused.  Cuellar complains that jurors Burnside and Butler both had daughters who had been recent victims of abuse, but no one asked questions about their feelings regarding those experiences.  Although the record does not contain the completed questionnaire of any juror, we can infer that defense counsel was satisfied with the information that those two jurors gave on their questionnaires and did not deem it necessary to inquire further.  But had counsel thought additional questions were necessary, the record shows that the attorneys were permitted to ask follow-up questions.

            Considering the court’s introductory explanation of the purpose and goal of voir dire; the respective attorneys’ questioning, which was replete with references to fairness and impartiality; and the written questionnaires, which called for the disclosure of substantial pertinent information, we have found nothing in the record to show, or even to suggest, that any of the five jurors with the alleged conflicts was biased in favor of the state or prejudiced against Cuellar.

2.         Prosecutorial Misconduct

            Cuellar contends that the prosecutor committed misconduct on voir dire, during witness examinations, and during final argument.  As a result, he claims, he was denied a fair trial.

            Appellate courts reviewing a claim of prosecutorial misconduct “will reverse only if the misconduct, when considered in light of the whole trial, impaired the defendant’s right to a fair trial.”  State v. Powers, 654 N.W.2d 667,678 (Minn. 2003) (citing State v. Johnson, 616 N.W.2d 720, 727-28 (Minn. 2000).  There are two standards against which the conduct is assessed: (1) if the conduct is serious, it will be deemed “harmless beyond a reasonable doubt if the verdict rendered was surely unattributable to the error,” and (2) if the conduct is less serious, we determine “whether the misconduct likely played a substantial part in influencing the jury to convict.”  Id.(citing State v. Hunt, 615 N.W.2d 294, 302 (Minn. 2000)).  But to preserve the issue for review on appeal, the defendant must object to the conduct at trial.  Id.  Cuellar failed to object to or request a curative instruction as to any of the conduct of which he now complains and thus has forfeited his right to have his claim on this issue reviewed.  But we may grant relief if the conduct constituted plain error.  State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998) (the error must be plain and must affect substantial rights).

            a.         Introduction to Voir Dire

            Before she began her voir dire examination, the prosecutor told the panel that she would be asking “personal questions” and that she would begin by telling them personal information about herself.  She disclosed her family and educational backgrounds.  She also indicated that she was disappointed that only three panel members wore green because that day was St. Patrick’s Day.  She asked some of the panel members if they were Irish, and she indicated that she herself was “mostly Italian, but a little Irish.”

            Cuellar contends that the prosecutor’s statements manifested her effort to predispose jurors to be favorable to her and that this conduct was especially egregious because Cuellar is Latino.  On appeal, the prosecutor argues that she was simply trying to make the panel members comfortable about making personal disclosures.

            Viewed in the perspective of the entire voir dire and of the trial as a whole, we find that there was no attempt by the prosecutor to ingratiate herself with the panel members or to curry favor with them.  Thus, there was no prosecutorial misconduct on voir dire.

            b.         Cross-examination and Final Argument

            Cuellar contends that the prosecutor belittled and demeaned him during cross-examination.  It is improper for the prosecutor to belittle a defense in the abstract.  State v. Salitros, 499 N.W.2d 815, 818 (Minn. 1993).  But a prosecutor is permitted to draw reasonable inferences from the evidence adduced at trial.  State v. Ashby, 567 N.W.2d 21, 28 (Minn. 1997).

            The prosecutor suggested that Cuellar felt sorry for himself and asked why he was in an anger-management program.  In final argument, the prosecutor referred to Cuellar’s anger-management program, his attitude toward his wife, his tendency to feel sorry for himself, and the immaturity of Cuellar and his wife, and the prosecutor stated that Cuellar was the classic example of a batterer in that he had low self-esteem.  The prosecutor’s questions and final-argument comments were all clearly tied to evidence to which there was no objection, particularly the testimony of an expert clinical psychologist, who testified to characteristics of battering victims and of batterers.  There were no objections to any of this testimony, and Cuellar has failed to demonstrate in what respect the questions and comments constituted prosecutorial misconduct or plain error if the behavior could be classified as prosecutorial misconduct.

            c.         “Were they lying” Questions

            Cuellar argues that the prosecutor asked him inappropriate questions, which Cuellar characterizes as “were they lying” questions.  “The general concern about ‘were they lying’ questions is that asking one witness to express an opinion as to the veracity of another witness  calls for improper comment on another witness’ testimony, and that it is the province of the jury to determine the credibility of witnesses.”  State v. Pilot, 595 N.W.2d 511, 516 (Minn. 1999).  There is no bright-line rule demarcating questions that are prohibited.  Id.  In Pilot, the supreme court determined that there was no error when the prosecutor asked the defendant “were they lying” questions after the defendant had advanced a theory that the state’s witnesses were lying and that the evidence against him had been fabricated.  Id. at 518.

            The focus here was on Cuellar’s tape-recorded statement to the police.  He testified that not everything he said to the police appeared on the tape-recording.  The prosecutor inquired as to whether Cuellar was accusing the police of turning off the tape recorder prematurely or of “doctor[ing]” the tape.  These questions were follow-up questions to a topic defense counsel opened during his direct examination of Cuellar.  It was proper and fair to determine precisely what Cuellar’s claim was with respect to the tape-recording, which had been played for the jury.  This inquiry did not violate the rule in Pilot.

3.         Sufficiency of Evidence

            Cuellar argues that there was insufficient evidence to support his conviction.  In considering a claim of insufficient evidence, this court’s review is limited to a painstaking 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 the verdict that they did.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  The reviewing court must assume that the jury believed the state’s witnesses and disbelieved any evidence to the contrary.  State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).  This is especially true when resolution of the matter depends mainly on conflicting testimony.  State v. Pieschke, 295 N.W.2d 580, 584 (Minn. 1980).  The reviewing court 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, could reasonably conclude that the defendant was guilty of the charged offense.  State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).     

Cuellar claims that the evidence presented to the jury was insufficient to convict him because his wife later recanted and testified that she made up the entire story.  He claims that his wife was a “woman scorned” and that once she realized the seriousness of the situation, she recanted her story.  But the jury was allowed to hear a tape-recorded statement that I.C. gave to the police after the alleged attack in which she gave a detailed account of what happened at her home before she called the police.  The jury also had the opportunity to compare that account with I.C.’s trial testimony to determine which version really happened.  Essentially, Cuellar’s claim of insufficient evidence is predicated on credibility determinations.  It is well settled that judging the credibility of witnesses and the weight to be given to their testimony rest within the province of the finder of fact.  State v. Johnson, 568 N.W.2d 426, 435 (Minn. 1997).  In this case, the jury clearly found the state’s witnesses to be more credible than Cuellar’s.  Because determinations of credibility are the responsibility of the fact-finder; and because the jury clearly did not find Cuellar’s version of events credible, sufficient evidence existed to support his conviction.

            Affirmed.