State of Minnesota, Respondent, vs. Rodolfo Ramirez, Appellant.

State of Minnesota, Respondent, vs. Rodolfo Ramirez, Appellant. A05-1180, Court of Appeals Unpublished, August 22, 2006.

This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-1180

 

State of Minnesota,

Respondent,

 

vs.

 

Rodolfo Ramirez,

Appellant.

 

Filed August 22, 2006

Affirmed

Kalitowski, Judge

 

Clay County District Court

File No. K0-03-21054

 

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

 

Lisa Borgen, Clay County Attorney, 807 North 11th Street, Moorhead, MN 56560 (for respondent)

 

John M. Stuart, State Public Defender, Jessica Benson Merz Godes, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)

 

            Considered and decided by Worke, Presiding Judge; Kalitowski, Judge; and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

            Appellant Rodolfo Ramirez challenges his convictions of attempted first-degree criminal sexual conduct and second-degree criminal sexual conduct, arguing that the district court committed reversible error by giving a no-adverse-inference jury instruction regarding appellant's decision not to testify without obtaining appellant's personal consent.  We affirm.

D E C I S I O N

 

            Both the United States and Minnesota Constitutions guarantee a criminal defendant's right not to testify.  U.S. Const. amend. V; Minn. Const. art. 1, § 7.  "[F]ailure to testify shall not create any presumption against the defendant."  Minn. Stat. § 611.11 (2002).  Thus, a district court should ordinarily obtain permission from a criminal defendant before instructing the jury not to draw any inference from the defendant's decision not to testify.  State v. Duncan, 608 N.W.2d 551, 558 (Minn. App. 2000), review denied (Minn. May 16, 2000).  And if defense counsel requests a no-adverse-inference instruction, the court or the defendant's counsel "should make a record of the defendant's clear consent and insistence that the instruction be given."  McCollum v. State, 640 N.W.2d 610, 617 (Minn. 2002).  Failure to obtain the defendant's consent on the record is error.  State v. Darris, 648 N.W.2d 232, 240 (Minn. 2002). 

            If the defendant fails to object to the instruction, this court reviews the error only if it affected the defendant's substantial rights.  Id. (citing State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998)).  "[P]lain error 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.  The defendant bears the heavy burden of showing such a significant effect.  Griller, 583 N.W.2d at 741.

            Here, appellant was convicted of attempted first-degree criminal sexual conduct and second-degree criminal sexual conduct based on an incident involving C.R., an 11-year-old girl.  At trial, appellant's counsel requested a no-adverse-inference jury instruction.  The state concedes that the district court then erred by failing to obtain appellant's express consent before giving the no-adverse-inference jury instruction.  But appellant's counsel did not object to the instruction.

            Appellant now argues that the error was prejudicial because the instruction drew attention to appellant's failure to testify regarding his version of the events.  Appellant further contends that "this court . . . cannot rely on the totality of the evidence to conclude that the error was not prejudicial" because the "evidence consisted solely of the allegations of one 11-year-old child."  We disagree.

            At trial, C.R. testified in detail how appellant inappropriately touched her and exposed himself to her.  Several witnesses then testified, providing corroborating evidence.  Two police officers confirmed that C.R.'s testimony was consistent with her earlier police interviews.  C.R.'s friends and grandmother testified that C.R. was upset the night of the incident and that she told them that appellant tried to have sexual contact with her.  And C.R.'s mother testified that appellant and C.R. were alone together for 15 to 20 minutes while she was in the upstairs part of her house and that when she joined them, C.R. appeared upset. 

            At trial, the parties presented evidence that appellant told police that he did not know C.R. or her mother.  But appellant's wife testified that a woman came to appellant's house on the day of the incident and accused appellant of "doing something" to her daughter.  That testimony is consistent with C.R.'s mother's account that she went to appellant's house to yell at him after C.R. told her what appellant had done.  Given the strength of the state's evidence, we conclude that the no-adverse-inference instruction did not have a significant effect on the jury's verdict.

            Furthermore, appellant's attorney requested the no-adverse-inference instruction.  And appellant confirmed that he was waiving his right to testify after the court stated that "the record will show that the Defendant has requested the ‘no adverse inference' instruction."  Lastly, appellant has not alleged additional errors that, when considered in conjunction with the court's failure to obtain appellant's consent, might have cumulatively deprived appellant of a fair trial.  Cf. Duncan, 608 N.W.2d at 558 (concluding that in a close criminal-sexual-conduct case, numerous errors, including the failure to obtain appellant's consent before giving a no-adverse-inference instruction, deprived defendant of a fair trial). 

            On this record, we conclude that appellant has failed to show that there is a reasonable likelihood that giving the no-adverse-inference instruction significantly affected the jury's verdict.  Thus, the district court did not commit reversible error when it gave a no-adverse-inference instruction without first obtaining appellant's personal consent on the record.

            Affirmed.