State v. Navarro

1

State of Minnesota, Respondent, v. Antonio Eduardo Lopez Navarro, Appellant.

No. A22-1246

Court of Appeals of Minnesota

August 28, 2023

This opinion is nonprecedential except as provided by Minn.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

Hennepin County District Court File No. 27-CR-21-19398

Keith Ellison, Attorney General, St. Paul, Minnesota; and Mary F Moriarty, Hennepin County Attorney, Sarah J. Vokes, Assistant County Attorney, Minneapolis, Minnesota (for respondent)

Kirk M. Anderson, Anderson Law Firm, PLLC, Minneapolis, Minnesota (for appellant)

Considered and decided by Bratvold, Presiding Judge; Worke, Judge; and Connolly, Judge.

WORKE Judge

Appellant challenges his criminal-sexual-conduct conviction, arguing that the district court plainly erred by admitting the show-up identification evidence. We affirm.

FACTS

In August 2021, M.M. was at a bus stop with her two young children. Appellant Antonio Eduardo Lopez Navarro approached M.M. from behind carrying food items. He asked M.M., "Do you want to f--k?" M.M. replied, "No. What the h--l." Navarro rubbed M.M.'s body and pulled at her underwear through her pants. Navarro then began pulling on M.M.'s "bra and tried to . . . pull on it from the back."

Navarro's conduct continued for about five minutes until M.M. called 911. Navarro picked up his food items and ran away. M.M. reported Navarro's conduct to the 911 dispatcher. M.M. provided a description of Navarro, his clothing, what he was carrying, and the direction he fled. M.M. called a friend to come watch her children while she spoke to police. M.M. got into the squad car to attempt to locate Navarro. M.M. directed police to the area she had seen Navarro run. Police and M.M. found Navarro "sitting on a bench eating." M.M. confirmed to police that Navarro was the man from the bus stop.

Respondent State of Minnesota charged Navarro with fifth-degree criminal sexual conduct. A jury found Navarro guilty as charged. The district court imposed a 365-day sentence, stayed for two years conditioned on Navarro serving 190 days in the workhouse. This appeal followed.

DECISION

Navarro argues that the district court plainly erred by admitting unobjected-to show-up identification evidence. The state contends that Navarro forfeited his right to challenge the admission of the evidence because he failed to make this challenge in a pretrial motion or objection at trial. Alternatively, the state argues that Navarro's claim fails on the merits.

Appellate courts generally review a district court's evidentiary decisions for an abuse of discretion. State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003). However, whether an identification procedure is so suggestive as to violate due process is reviewed de novo. State v. Hooks, 752 N.W.2d 79, 83 (Minn.App. 2008).

To preserve a claim that certain evidence should be excluded, the defendant must "timely object[]" and "state[] the specific ground of objection." Minn. R. Evid. 103(a)(1). "When a criminal defendant challenges a witness's identification, district courts must conduct a pretrial omnibus hearing or midtrial hearing to resolve the challenge." State v. Jones, 977 N.W.2d 177, 189 (Minn. 2022). A district court is not required to make sua sponte determinations concerning witness-identification procedures when "no challenge to the identification was raised before the district court." Id. Therefore, without a challenge raised, a defendant's admissibility-of-evidence arguments are considered waived. State ex rel. Rasmussen v. Tahash, 141 N.W.2d 3, 14 (Minn. 1965).

Navarro did not challenge the show-up identification evidence by pretrial motion nor did he object to the admission of this evidence at trial. The record shows that Navarro requested an omnibus hearing, and the district court scheduled the hearing for December 6, 2021. However, there is no record of the December 2021 hearing taking place. Generally, appellate courts do not decide "issues which are not first addressed by the [district] court and are raised for the first time on appeal even if the issues involve constitutional questions regarding criminal procedure. This is especially true when the record is not fully developed." State v. Bonkowske, 957 N.W.2d 437, 445 (Minn.App. 2021) (quotations omitted). But the reviewing court's discretion allows for "deviat[ion] from this rule when the interests of justice require consideration of such issues and doing so would not unfairly surprise a party to the appeal." Id. (quotation omitted).

Assuming, without deciding that the interests-of-justice exception applies to Navarro's failure to challenge the show-up identification procedure in district court, we nonetheless conclude that the claim fails on its merits.

Because Navarro did not object to the state's identification evidence at trial, we review the district court's admission of the evidence for plain error. See State v. Milton, 821 N.W.2d 789, 805 (Minn. 2012) (reviewing unobjected-to challenge for plain error). To establish plain error, Navarro must demonstrate that the admission of the show-up evidence constitutes error, the error was plain, and the error affects his substantial rights. Id. "An error is plain when it is clear or obvious." State v. Strommen, 648 N.W.2d 681, 688 (Minn. 2002) (quotation omitted). An error affects a criminal defendant's substantial rights "if there is a reasonable likelihood that the error substantially affected the verdict." Id.; see also State v. Matthews, 800 N.W.2d 629, 634 (Minn. 2011) (stating that "analysis under the third prong of the plain error test is the equivalent to a harmless error analysis").

We apply a two-prong test to determine whether pretrial identification evidence violates due process and must be suppressed. State v. Ostrem, 535 N.W.2d 916, 921 (Minn. 1995). First, we determine whether the identification procedure was unnecessarily suggestive. Id. Even if the procedure was unnecessarily suggestive, the evidence may be admissible under the second prong if "the totality of the circumstances establishes that the evidence was reliable." Id. In other words, the second prong involves a determination of "whether the suggestive procedures created a very substantial likelihood of irreparable misidentification." Id.

Suggestiveness of the identification

A one-person show-up identification procedure, as is the case here, is not always unduly suggestive. State v. Taylor, 594 N.W.2d 158, 161-62 (Minn. 1999). However, the "very nature" of a one-person show-up identification is suggestive. Id. at 162. Here, the show-up identification does not appear unduly suggestive. But even assuming that it was suggestive, Navarro's claim fails to satisfy the second prong.

Likelihood of irreparable misidentification

To evaluate the totality of the circumstances under the second prong of this test, the reviewing court must consider the following factors:

1. The opportunity of the witness to view the criminal at the time of the crime;

2. The witness'[s] degree of attention;

3. The accuracy of the witness'[s] prior description of the criminal;

4. The level of certainty demonstrated by the witness at the [identification procedure];

5. The time between the crime and the confrontation.

Ostrem, 535 N.W.2d at 921. If the totality of the circumstances demonstrates "an adequate independent origin" for the witness's identification of the defendant, then the identification evidence need not be suppressed despite the suggestive nature of the procedure. Taylor, 594 N.W.2d at 161.

Opportunity to view the perpetrator

Whether a witness had a good opportunity to view a perpetrator is evaluated based on the amount of time that the witness viewed the perpetrator, State v. Jones, 556 N.W.2d 903, 913 (Minn. 1996), and if the witness saw the perpetrator "during daylight hours from relatively close range." Ostrem, 535 N.W.2d at 922.

M.M.'s encounter with Navarro lasted for about five minutes, during the daytime, and from close range-within arm's reach. Navarro was close enough to M.M. that he was able to grab M.M.'s body and clothing. Given the length of time M.M. saw Navarro, his proximity to her, and the time of day the incident took place, M.M.'s opportunity to view Navarro favors the admission of the show-up identification evidence.

Degree of attention

Whether a witness "was coherent, aware, and attentive" are considered when analyzing if a witness's attention was impaired in some way. State v. Adkins, 706 N.W.2d 59, 63 (Minn.App. 2005). This court...