State v. Rosendo Dominguez, A19-0869

State of Minnesota, Respondent, v. Jose Patricio Rosendo Dominguez, Appellant.

A19-0869

STATE OF MINNESOTA IN COURT OF APPEALS

July 6, 2020

This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2018).

Affirmed in part, reversed in part, and remanded

Smith, Tracy M., Judge

Hennepin County District Court

File No. 27-CR-18-10756

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

Michael O. Freeman, Hennepin County Attorney, Adam E. Petras, Assistant County Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Jennifer Workman Jesness, Assistant Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Reilly, Presiding Judge; Smith, Tracy M., Judge; and Florey, Judge.

UNPUBLISHED OPINION

SMITH, TRACY M., Judge

In this direct appeal, appellant Jose Patricio Rosendo Dominguez argues that (1) his convictions for first- and second-degree criminal sexual conduct must be reversed because respondent State of Minnesota committed prosecutorial misconduct in closing argument, (2) the district court abused its discretion by imposing an aggravated upward departure in sentencing because his offense was not significantly more serious than typical, (3) the district court erred by imposing a lifetime term of conditional release because he did not have a prior sex-offense conviction since his convictions were entered simultaneously in the same proceeding, and (4) the district court likewise erred by imposing a lifetime requirement of predatory-offender registration. We conclude that, though prosecutorial misconduct occurred, appellant was not prejudiced by it. We also conclude that the district court did not err by imposing an aggravated departure in sentencing. We further conclude that the district court erred by imposing a lifetime term of conditional release because the convictions were simultaneous, but that the district court did not err by imposing a lifetime registration requirement. We therefore affirm in part, reverse in part, and remand.

FACTS

The following facts are drawn from Rosendo Dominguez's jury trial. Rosendo Dominguez married E.G. in 2010. E.G. brought two children to their relationship, including M.S., and the couple had two more children. The family lived in several different homes over the course of M.S.'s childhood. At those different locations, and while M.S. was in the third to eighth grades, Rosendo Dominguez engaged in repeated and escalating sexual abuse of M.G., including vaginal penetration with his penis. When M.G. was 13 years old, she disclosed the abuse to her mother and grandmother.

The state charged Rosendo Dominguez with one count of first-degree criminal sexual conduct for "[p]enetration or [c]ontact with person under 13" pursuant to Minn.Stat. § 609.342, subd. 1(a) (2016); and another count of second-degree criminal sexual conduct for sexual contact with a victim age 13 to 15 while the defendant is in a position of authority over the victim pursuant to Minn. Stat. § 609.343, subd. 1(b) (2016).¹ Rosendo Dominguez denied the charges, and the case proceeded to a three-day jury trial.

The jury found Rosendo Dominguez guilty on both counts. The jury also answered in the affirmative all nine questions on a special verdict form relating to an aggravated sentence. At sentencing, the district court concluded that the jury's findings established the aggravating factors of particular cruelty and abuse of a position of authority or trust. Based on these aggravating factors, the district court sentenced Rosendo Dominguez to a prison sentence of 204 months for the first-degree criminal-sexual-conduct count, which is a 32-month departure from the top of the presumptive guidelines range. The district court also imposed a consecutive 36-month executed sentence for the second-degree count. The district court ordered that Rosendo Dominguez be placed on conditional release for the remainder of his life and register as a predatory offender for the remainder of his life.

Rosendo Dominguez appeals.

DECISION

I. Although the prosecutor committed plain error in the closing argument, the error did not affect Rosendo Dominguez's substantial rights.

Rosendo Dominguez argues that the state committed prosecutorial misconduct during its closing argument. Rosendo Dominguez did not object to the closing argument at trial but argues that he should receive a new trial under the plain-error doctrine.

Prosecutors are ministers of justice who have an "affirmative obligation" to ensure that a defendant receives a fair trial. State v. Ramey, 721 N.W.2d 294, 300 (Minn. 2006). This obligation includes being familiar with standards of conduct and practicing proper conduct in closing arguments. Id. at 300-01. Appellate courts apply the modified plain-error analysis when examining allegations of unobjected-to prosecutorial misconduct. Id. at 299-300. Under that test, the defendant bears the burden of establishing error that is plain. Id. at 302. "An error is plain if it is clear or obvious, and usually this is shown if the error contravenes case law, a rule, or a standard of conduct." State v. Davis, 735 N.W.2d 674, 681 (Minn. 2007) (quotations omitted). If the defendant establishes plain error, the burden shifts to the state to prove that the error did not affect the defendant's substantial rights. State v. Parker, 901 N.W.2d 917, 926 (Minn. 2017). To do so, the state must establish that "there is no reasonable likelihood that the absence of the misconduct in question would have had a significant effect on the verdict of the jury." Ramey, 721 N.W.2d at 302 (quotation omitted). If the state fails to meet that burden, appellate courts consider whether the error should be addressed to ensure the fairness and integrity of the proceedings. Parker, 901 N.W.2d at 926.

Rosendo Dominguez asserts four instances of prosecutorial misconduct in closing argument. We first analyze whether any of the challenged conduct constituted plain error, and we then evaluate prejudice.

A. Plain error

1. Inflaming the passions of the jury

Rosendo Dominguez argues that the prosecutor inflamed the jury's passions. "When credibility is a central issue, this court pays special attention to statements that may inflame or prejudice the jury." State v. Mayhorn, 720 N.W.2d 776, 787 (Minn. 2006). "While the state's argument need not be 'colorless,' it must be based on the evidence produced at trial, or the reasonable inferences from that evidence." State v. Porter, 526 N.W.2d 359, 363 (Minn. 1995). "It is improper for the prosecutor to make statements urging the jury to protect society or to send a message with its verdict." State v. Duncan, 608 N.W.2d 551, 556 (Minn. App. 2000), review denied (Minn. May 16, 2000).

Rosendo Dominguez argues that the prosecutor inflamed the jury with these opening lines:

Children speak quietly, that's why we have to listen. The men who abuse children are counting on their silence. That's why they pick them. Children are easily confused. They're afraid. They may not have the language or the framework to understand what's happening. They don't remember or understand things the way adults do. They don't talk or think in a linear or sequential way all the time. Children are the perfect victims.

The state argues that the statements were grounded in the evidence and, in any event, any error was not plain. We disagree. The statements went beyond the evidence in the case, and they attempted to inject into the trial the broader societal issue of protecting children from sexual abuse. In both ways, they were plainly erroneous.

Rosendo Dominguez also argues that the prosecutor inflamed the jury's passions by speculating that he abused his stepdaughter because his wife was too busy for intimacy. The prosecutor said in her closing argument, "[A]bout how much time and maybe how much intimacy this defendant was getting with his wife during that time? Sometimes the sexual abuse of kids isn't about sex, but sometimes it is." The state contends that the argument was proper because it was grounded in the evidence of E.G.'s absence from home while working multiple jobs to support her four children and the prosecutor was trying to identify a possible motive for Rosendo Dominguez's sexual abuse. As misguided as this part of the state's closing argument was, we cannot conclude that it constituted error that was plain.

2. Disparaging the defense

Rosendo Dominguez argues that the state disparaged the defense by "improperly impl[ying] that all criminal defendants, including appellant, lie on the stand" and "by implying that his defense rested solely on the hope that the jury would believe an adult over a child."

The supreme court has repeatedly warned prosecutors against disparaging the defense. State v. Bailey, 677 N.W.2d 380, 403-04 (Minn. 2004). "The State may argue that there is no merit in a particular defense, but it may not belittle that defense either in the abstract or by suggesting that the defendant raised the defense because it was the only one with any hope for success." State v. Peltier, 874 N.W.2d 792, 804 (Minn. 2016).

Here, the state said to the jury, "Criminal defendants don't admit to the charges when they take the witness stand; they get on the witness stand and they deny everything,and that's just what he did." The state also said that "the grown-up's always going to have the upper hand in that context, and that is what he is counting on."

Implying that all criminal defendants lie when they take the stand is plain error. The prosecutor lumped Rosendo Dominguez into a category of criminal defendants who all lie when they take the stand—nothing in the prosecutor's statement was connected to Rosendo Dominguez's actual testimony. The prosecutor committed plain error by disparaging the defense.

3. Vouching for the victim's credibility

Rosendo Dominguez next argues that the state committed plain error during closing argument by...