This opinion will be unpublished and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

A05-725

 

State of Minnesota,

Respondent,

 

vs.

 

Phuong Nguyen,

Appellant.

 

Filed May 9, 2006

Affirmed

Kalitowski, Judge

 

Hennepin County District Court

File No. 04058425

 

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

 

Amy Klobuchar, Hennepin County Attorney, Linda M. Freyer, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

 

John M. Stuart, State Public Defender, Roy G. Spurbeck, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)

 

            Considered and decided by Stoneburner, Presiding Judge; Kalitowski, Judge; and Willis, Judge.

U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

Appellant challenges his conviction of first-degree criminal sexual conduct, arguing that the district court committed plain error by giving a no-adverse-inference instruction without obtaining his on-the-record consent to the instruction.  We affirm. 

D E C I S I O N 

 

            A  Minneapolis police officer responding to a 911 call at a South Minneapolis car wash interviewed a woman, Q.T., who indicated that she fled to the car wash after appellant, an acquaintance, had sexually assaulted her at a nearby home.  The officer noticed that the zipper on her pants was broken and that she had injuries on her face, neck, and forearm.  Q.T. was taken by ambulance to Hennepin County Medical Center, where a Sexual Assault Resource Service examination revealed injuries consistent with sexual assault.  

            The state charged appellant with two counts of first-degree criminal sexual conduct.  At trial, appellant’s former girlfriend testified that she saw appellant and Q.T. flirting, with his leg touching her, just before the time of the alleged assault.  The trial record indicates that out of the hearing of the jury, the district court confirmed on the record with appellant that he had chosen not to testify.  The record does not indicate that the district court asked appellant for his consent to a no-adverse-inference jury instruction.  But the district court subsequently instructed the jury that appellant had chosen not to testify and that the jury should draw no inference from the fact that he had not testified.  The jury convicted appellant of both counts of first-degree criminal sexual conduct. 

            Both the United States and Minnesota Constitutions guarantee a criminal defendant’s right not to testify.  See U.S. Const. amend. V (stating no person shall be compelled to be a witness against himself in any criminal case); Minn. Const. art. 1, § 7 (same).  Ordinarily, a district court should obtain permission from a criminal defendant before instructing the jury with CRIMJIG 3.17, the no-adverse-inference instruction.  State v. Thompson, 430 N.W.2d 151, 153 (Minn. 1988); see 10Minnesota Practice CRIMJIG 3.17 (1999) (stating that defendant has right, guaranteed by federal and state constitutions, not to testify in his own defense, and that jury should not draw any inference from fact defendant has not testified).  Failure to obtain the defendant’s consent is error.  State v. Duncan, 608 N.W.2d 551, 558 (Minn. App. 2000), review denied (Minn. May 16, 2000).

            But if the defendant fails to object to the instruction, this court reviews the error only if it affected the defendant’s substantial rights.  State v. Darris, 648 N.W.2d 232, 240 (Minn. 2002).  The erroneous giving of a no-adverse-inference instruction is prejudicial “when there is a reasonable likelihood that the giving of the instruction would have had a significant effect on the jury’s verdict.”  Id. (citing State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998)).  The defendant bears a heavy burden of proof to show such a significant effect.  Griller, 583 N.W.2d at 741.

            The state concedes that the district court erred by failing to ask appellant’s permission before instructing the jury with CRIMJIG 3.17.  Although appellant’s counsel did not object to the jury instruction at trial, appellant maintains on appeal that this error was prejudicial because it drew attention to his failure to testify as to his version of events and reinforced the jury’s natural inclination to believe that appellant was hiding something from it.  We disagree. 

            Appellant’s argument does not meet the heavy burden of showing that the error substantially affected the jury’s verdict.  The contention that the jury would believe a defendant is hiding something, without more, is an insufficient demonstration of prejudice because the jury instruction specifically admonishes the jury to draw no adverse inference from the defendant’s failure to testify.  The record reflects that the district court told the jury that “[t]he defendant has a right not to testify” which is “guaranteed by the federal and state constitutions,” and that it “should not draw any inference from the fact that the defendant has not testified in this case.”

            In addition, appellant has alleged no other errors that, when considered in conjunction with the failure to request permission for a no-adverse-inference instruction, might have had the cumulative effect of depriving appellant of a fair trial.  Cf. Duncan, 608 N.W.2d at 558 (holding, in criminal-sexual-conduct case, that cumulative effect of numerous errors in a close case, including failure to obtain appellant’s consent before giving no-adverse-inference instruction, deprived defendant of a fair trial).  On this record, we conclude that appellant has failed to meet the burden of demonstrating that the district court’s error affected his substantial rights. 

Affirmed.