State v. De La Cruz-Soto

1

State of Minnesota, Respondent, v. Isaias De La Cruz-Soto, Appellant.

No. A21-1105

Court of Appeals of Minnesota

August 1, 2022

This opinion is nonprecedential except as provided by Minn. R Civ. App. P. 136.01, subd. 1(c).

Nobles County District Court File No. 53-CR-20-929

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Joseph M. Sanow, Nobles County Attorney, Travis J. Smith, Special Assistant County Attorney, Slayton, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Sharon E. Jacks, Assistant Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Bratvold, Presiding Judge Bjorkman, Judge; and Kirk, Judge.

Kirk Judge ^[*] In this direct appeal from the judgment of conviction for first-degree criminal sexual conduct, appellant argues (1) that the district court plainly erred by admitting inadmissible hearsay evidence, and (2) that he was denied his right to a unanimous 12-juror verdict. Because the admission of unobjected-to testimonial evidence was not plain error, and because the record shows other safeguards existed to ensure that the jury was properly impaneled and returned a unanimous verdict, we affirm.

FACTS

Appellant Isaias De La Cruz-Soto was charged with first-degree criminal sexual conduct in violation of Minn. Stat. § 609.342, subd. 1(c) (2020); third-degree criminal sexual conduct in violation of Minn. Stat. § 609.344, subd. 1(c) (2020); threats of violence in violation of Minn. Stat. § 609.713, subd. 1 (2020); false imprisonment in violation of Minn. Stat. § 609.255, subd. 2 (2020); interfering with a 911 call in violation of Minn. Stat. § 609.78, subd. 2(1) (2020); and domestic assault in violation of Minn. Stat. § 609.2242, subd. 1(2) (2020). Appellant pleaded not guilty, and there was a three-day jury trial from March 31 through April 2, 2021.

At appellant's trial, LTG testified that appellant sexually assaulted her. In relevant part, LTG testified that appellant got on top of her and put his leg on her like an officer making an arrest. LTG begged appellant to let her go, but he refused and said, "You know what's going to happen to you." Appellant told LTG that if she wanted him to let her go, she needed to let him penetrate her from behind. When LTG refused, appellant tied her feet with a sheet and tied her hands with an electrical cord. He then put a towel in her mouth to suffocate her and said, "I won't let you live one more [] second. You don't know who you are dealing with." LTG testified that appellant raped her while she was tied up. The prosecutor asked LTG if there was a point at which appellant threatened to kill her. LTG said there was, and it was when appellant said, "you know what's going to happen to you." At one point, LTG untied herself and ran outside naked yelling for help. She slipped on ice and appellant grabbed her neck and pulled her back to the house. She locked herself in the children's bedroom and called 911 from her daughter's tablet. LTG remained in the bedroom until the police arrived.

Officer VanderVeen, one of the responding officers, also testified at trial. In relevant part, his testimony concerned LTG's statement given to him at the scene of the assault. According to VanderVeen's testimony, LTG explained that appellant woke her up by attempting to have sex with her and threatened to kill her and take away her children. LTG told VanderVeen that appellant tied her hands with an electrical cord and raped her. The prosecutor then asked VanderVeen what LTG told him about getting free. In response, VanderVeen testified that LTG mentioned that she broke free from the first restraints and ran outside naked because it was her only opportunity to get away.

At the conclusion of the trial, the jury found appellant guilty of all six charges. Appellant requested that the jury be polled. The record shows that 11 jurors confirmed their guilty verdict on all charges. On June 8, 2021, the district court entered a conviction on count one, first-degree criminal sexual conduct in violation of Minn. Stat. § 609.342, subd. 1(c) and sentenced appellant to 172 months in prison. This appeal follows.

DECISION

I. The district court did not plainly err by admitting the victim's out-of-court statement made to a police officer at the scene of the assault.

Appellant challenges the district court's admission of LTG's statement to law enforcement, arguing it constitutes inadmissible hearsay. Because appellant did not object at trial, this court reviews the district court's admission of evidence for plain error. State v. Vick, 632 N.W.2d 676, 684-85 (Minn. 2001). The appellant has the burden of showing that there is "(1) error, (2) that is plain, and (3) the error affects the defendant's substantial rights." Id. at 685. If these first three prongs are met, we then determine "whether it is necessary to address the error to ensure the fairness and integrity of the judicial proceedings." State v. Manthey, 711 N.W.2d 498, 504 (Minn. 2006). Only after all of these factors are satisfied may we exercise our discretion to correct an unobjected-to error. Vick, 632 N.W.2d at 685.

Hearsay is "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Minn. R. Evid. 801(c). Hearsay is inadmissible at trial unless it falls into one of several exceptions delineated in the rules of evidence. Minn. R. Evid. 801(c), 802. But the rules of evidence categorically exempt some out-of-court statements from being classified as hearsay. Minn. R. Evid. 801(d).

Although there is nothing in the record to indicate under what theory the state introduced LTG's statement, appellant solely challenges its admissibility as a prior consistent statement. A prior consistent out-of-court statement is not hearsay and is admissible as substantive evidence if "[t]he declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is . . . consistent with the declarant's testimony and helpful to the trier of fact in evaluating the declarant's credibility as a witness." Minn. R. Evid. 801(d)(1)(B). "[T]rial testimony and the prior statement need not be identical" but, rather, need only be "reasonably consistent." State v. Zulu, 706 N.W.2d 919, 924 (Minn.App. 2005) (quotation omitted). But a prior statement is not reasonably consistent with trial testimony when the inconsistencies affect the elements of the charge so that, if believed by the jury, they would tend to show the commission of a more serious offense. State v. Bakken, 604 N.W.2d 106, 110 (Minn.App. 2000), rev. denied (Minn. Feb. 24, 2000).

Appellant argues that LTG's statement is not admissible as a prior consistent statement because it is not reasonably consistent with her trial testimony and directly affected two elements of the first-degree criminal sexual conduct charge. He asserts that LTG's testimony indicated that appellant threatened to kill her only after he sexually assaulted her, whereas VanderVeen's testimony indicated that appellant threatened to kill LTG before he sexually assaulted her. A review of the record shows that LTG did not explicitly testify that the threat came after penetration. Thus, appellant's interpretation of LTG's testimony is based on inferences drawn from her testimony, rather than from the testimony itself. Because LTG's testimony is unclear as to when appellant threatened to kill her, appellant cannot show that LTG's prior statement was not "reasonably consistent" with her trial testimony. Zulu, 706 N.W.2d at 924 (quotation omitted).

Further, absent an objection, it was not plainly erroneous for the district court to admit LTG's prior statement to the police. In Manthey, the Minnesota Supreme Court addressed the narrowness of the plain-error standard with respect to hearsay evidence. 711 N.W.2d at 504. There, the supreme court stated that "[t]he number and variety of exceptions to the hearsay exclusion make objections to such testimony particularly important to the creation of a record of the trial court's decision-making process in either admitting or excluding a given statement." Id. The hearsay rule's numerous exceptions "make it particularly important that a full discussion of admissibility be conducted at trial." Id. "In the absence of an objection, the state was not given the opportunity to establish that some or all of the statements were admissible under one of the numerous exceptions to the hearsay rule." Id. The supreme court therefore concluded that evidence was not "clearly or obviously inadmissible hearsay." Id.

The analysis in Manthey applies to this case. Appellant's failure to object to the admission of the evidence deprived the state of the opportunity to argue that the challenged statement was admissible under one of the numerous hearsay-rule exceptions. Accordingly, we decline to assign plain error to the admission of LTG's statement. See id. at 504-05 (expressing reluctance to conclude that the admission of hearsay evidence is plain error); see also State v. Smith, 825 N.W.2d 131, 138-39 (Minn.App. 2012) (concluding that a district court did not commit plain error by admitting potential hearsay testimony "because [the defendant's] counsel failed to object at trial and, as a result, the prosecutor did not have the opportunity to argue for the admissibility of the statements under several hearsay exceptions."), rev. denied (Minn. Mar. 19, 2013).

II. The district court did not violate appellant's right to a 12-juror unanimous verdict.

Criminal defendants have a constitutional right to be tried by 12 jurors. Minn. Const. art. I, § 6.^[1] Criminal defendants also have the constitutional...