This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA
IN COURT OF APPEALS
A14-1127
State of Minnesota,
Respondent,
vs.
Dario Jothzan Abla-Salmeron,
Appellant.
Filed May 4, 2015
Affirmed
Kirk, Judge
Ramsey County District Court
File No. 62-CR-13-3514
Lori Swanson, Attorney General, St. Paul, Minnesota; and
John Choi, Ramsey County Attorney, Thomas R. Ragatz, Assistant County Attorney, St.
Paul, Minnesota (for respondent)
Robert D. Sicoli, Elizabeth R. Duel, Sicoli & Garry, P.L.L.C., Minneapolis, Minnesota
(for appellant)
Considered and decided by Reilly, Presiding Judge; Ross, Judge; and Kirk, Judge.
UNPUBLISHED OPINION
KIRK, Judge
Appellant Dario Jothzan Abla-Salmeron challenges his criminal-sexual-conduct
convictions, arguing that the district court erred by admitting (1) testimony from the
victim regarding her belief that appellant was in a gang and (2) expert testimony
regarding rape-victim behaviors and common rape myths. We affirm.
FACTS
On May 18, 2013, J.B. went out for dinner, drinks, and dancing before briefly
stopping at a friend’s house. She left the friend’s house around 2:15 a.m. on May 19. As
she was walking the five blocks to her house, J.B. heard someone behind her say “guera.”
J.B. interpreted the term to mean “American white girl,” and thought that the speaker
might be someone she knew. J.B. turned around and saw appellant, whom she did not
know. According to J.B., she turned to keep walking, but appellant pushed her down to
the ground, held her down, took off her pants, and sexually assaulted her both vaginally
and anally. After about ten minutes, two people walked around the corner and appellant
started to run away.
R.C. testified that he was walking with a friend when he heard a woman screaming
and a “commotion.” R.C. saw appellant and J.B. “on the curb” and noticed that J.B. was
not wearing pants. Appellant walked away, and R.C. asked J.B. if she was all right.
After J.B. responded that appellant had raped her, R.C. ran after appellant, telling him to
come back because J.B. said he had raped her. According to R.C., appellant responded,
“Yeah. Go ahead. You use her next. Your turn next.” R.C. then punched appellant, and
the two fought. During the fight, R.C. called 911.
Appellant’s girlfriend then pulled up in an SUV, picked up appellant, and started
to drive away. Responding police officers saw the SUV disregard a stop sign and drive
away from the scene “at a fast rate of speed.” They conducted a traffic stop of the SUV
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about two blocks away from the fight and identified appellant and his girlfriend. One
police officer noticed that appellant had abrasions to his face, unzipped pants, and
smelled of alcohol. Sperm cells collected from J.B. during a sexual-assault exam later
matched appellant.
In contrast to J.B.’s testimony, appellant testified that J.B. approached him as he
was walking home, acted affectionately toward him, and offered to have sex with him on
the ground. Appellant stated that they had consensual sex, both vaginally and anally.
After they finished, appellant walked away. As he did so, two men approached him and
demanded appellant’s money. He alleged that R.C. told him, “If you don’t give money,
I’m going to accuse you that you were raping her.” Appellant believed that he had been
set up for a robbery.
Respondent State of Minnesota charged appellant with one count of first-degree
criminal sexual conduct and one count of third-degree criminal sexual conduct. The jury
found appellant guilty of both charges. This appeal follows.
DECISION
I. The district court did not abuse its discretion by allowing J.B.’s testimony
that she believed appellant was in a gang.
During her direct testimony, J.B. explained that she initially hesitated to talk to the
responding police officers because she was scared that appellant was in a gang. She also
hesitated to go to the hospital and refused to identify the person who assaulted her at the
scene for the same reason. J.B. told the police officers why she was scared, but admitted
that she had no knowledge of appellant’s gang membership.
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On cross-examination, J.B. repeated her admission that she had no evidence
appellant was in a gang. The defense attorney then asked J.B. about her ongoing fear:
DEFENSE ATTORNEY: [H]as anybody given you a reason
to be afraid?
J.B.: Afraid of what?
DEFENSE ATTORNEY: I don’t know. You keep
mentioning that you’re afraid, that you’re scared, and that
you’re scared today still.
J.B.: That’s because I believe that he is in a gang. I believe
that. I don’t have any information, but the . . . West Side has
many Latino, Mexican gangs.
DEFENSE ATTORNEY: So you still believe that my client is
in a gang?
J.B.: I don’t have information that says that he is, but that’s
what I believe. Yes.
DEFENSE ATTORNEY: So no information. That’s just
what you believe?
J.B.: Right.
DEFENSE ATTORNEY: Okay. And that’s enough to make
you scared?
J.B.: Yes.
....
DEFENSE ATTORNEY: Has anybody affiliated with my
client tried to contact you?
J.B.: No.
....
DEFENSE ATTORNEY: Have there been any threats made
to you from anybody that has any connection to [appellant]?
J.B.: No.
Following this testimony, the prosecutor asked J.B. why she had recently moved to a new
house. J.B. explained that her car had been broken into and that “somebody had put
blood on [her] door.” But J.B. agreed with appellant’s attorney that she had no reason to
suspect appellant or anyone connected to the case of involvement in these incidents.
Appellant argues that the district court erred by allowing J.B. to testify regarding
her belief that appellant was in a gang. “Evidentiary rulings rest within the sound
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discretion of the [district] court and will not be reversed absent a clear abuse of
discretion.” State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003). On appeal, appellant
bears the burden to show both that the district court abused its discretion and that he
suffered prejudice. See id. The erroneous admission of evidence does not require
reversal unless “the error substantially influence[d] the jury’s decision.” State v. Nunn,
561 N.W.2d 902, 907 (Minn. 1997).
Appellant first suggests that J.B.’s testimony about appellant’s gang membership
was irrelevant because gang membership is not an element of the charged offenses.
Appellant is correct that gang membership is not an element of criminal sexual conduct.
See Minn. Stat. §§ 609.342, subd. 1, .344, subd. 1 (2012). But “‘[r]elevant evidence’
means evidence having any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable than it
would be without the evidence.” Minn. R. Evid. 401. Relevant evidence is therefore not
limited to the elements of charged offenses. Appellant argued at trial that J.B. consented
to vaginal and anal intercourse. J.B.’s initial reluctance to talk to police officers, go to
the hospital, and identify appellant could be interpreted as evidence of consent because
these facts could suggest that J.B. thought she had no reason to seek medical treatment or
police intervention. As a result, J.B.’s explanation that her actions were based on fear
that appellant was in a gang was relevant to a determination of her consent. See Minn. R.
Evid. 401; State v. Grayson, 546 N.W.2d 731, 736-37 (Minn. 1996) (concluding that
testimony regarding the defendant’s view of white women was relevant to an evaluation
of his version of events).
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Appellant also suggests that J.B.’s testimony was irrelevant because it violated his
First Amendment rights. “[T]he First Amendment protects an individual’s right to join
groups and associate with others holding similar beliefs.” Dawson v. Delaware, 503 U.S.
159, 163, 112 S. Ct. 1093, 1096 (1992). But “there is no per se barrier to the admission
of evidence concerning one’s beliefs and associations where the evidence is relevant.”
Grayson, 546 N.W.2d at 738. Unlike in Grayson, where the supreme court concluded
that cross-examination regarding the views of Malcolm X was irrelevant and a
constitutional error, appellant was not questioned about his beliefs or associations and the
jury was not invited to attribute certain beliefs to appellant. See id. To the contrary,
appellant was not accused of gang membership and J.B. was clear that she had no
evidence to corroborate her fear of gang membership. J.B.’s relevant testimony did not
violate appellant’s First Amendment rights.
Appellant next argues that the challenged testimony was “unduly prejudicial.”
Even relevant evidence “may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice.” Minn. R. Evid. 403. “[G]ratuitous
testimony about a defendant’s gang membership or bad character may be unduly
prejudicial.” State v. Jackson, 726 N.W.2d 454, 463 (Minn. 2007). Appellant again cites
Grayson, in which the supreme court concluded that the danger of unfair prejudice “far
outweighed” the evidence’s probative value when the prosecutor made no attempt to
connect testimony about Malcolm X’s views to any issue in the case. 546 N.W.2d at 737.
But unlike in Grayson, J.B.’s fear of appellant’s gang membership was referenced
extensively by both sides and was connected to J.B.’s consent and credibility. The
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defense attorney cross-examined J.B. and others about the credibility of J.B.’s fear, and
argued in closing that J.B. was not a credible witness because there was no record
evidence of gang membership.
Appellant suggests that the most problematic evidence concerned J.B.’s statement
that she moved because her car had been broken into and “somebody had put blood on
[her] door.” We are troubled that the state introduced this evidence on redirect without
providing notice to the defense. But these incidents, which occurred months after the
alleged criminal sexual conduct, were unrelated to the charges or the issues at trial. In
addition, J.B. agreed with appellant’s attorney that she had no reason to suspect appellant
or anyone connected to the case of involvement in these incidents. And appellant’s
attorney assured the district court that he was not requesting a mistrial or any curative
instructions regarding this testimony. Given the other evidence of appellant’s guilt,
including testimony from both J.B. and R.C., we cannot conclude that J.B.’s testimony
“substantially influence[d] the jury’s decision.” See Nunn, 561 N.W.2d at 907.
We conclude that any prejudice created by J.B.’s testimony did not substantially
outweigh the probative value of the evidence. See Minn. R. Evid. 403. J.B. repeatedly
stated that she had no actual evidence of appellant’s gang membership and that she did
not suspect appellant of involvement in the incidents at her home. Because J.B.’s
testimony was relevant to the issue of her consent and because she admitted that her fear
was based solely on a belief rather than actual evidence of gang membership, appellant
has not met his burden to show that he suffered prejudice. See Amos, 658 N.W.2d at 203.
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II. The district court did not abuse its discretion by admitting expert testimony
regarding rape-victim behaviors and common rape myths.
Appellant argues that the district court erred by admitting expert testimony
regarding rape-victim behaviors and common rape myths. “Rulings concerning the
admission of expert testimony generally rest within the sound discretion of the district
court and will not be reversed absent a clear abuse of discretion.” State v. Mosley, 853
N.W.2d 789, 798-99 (Minn. 2014). The erroneous admission of expert testimony
requires reversal “only when the error substantially influence[d] the jury’s decision.”
State v. Blanche, 696 N.W.2d 351, 374 (Minn. 2005) (quotation omitted).
Minn. R. Evid. 702 permits qualified experts to testify regarding information that
“will assist the trier of fact to understand the evidence or to determine a fact in issue.”
Under rule 702, expert testimony regarding nonscientific information “is admissible if:
(1) the witness is qualified as an expert; (2) the expert’s opinion has foundational
reliability; [and] (3) the expert testimony is helpful to the jury.” State v. Obeta, 796
N.W.2d 282, 289 (Minn. 2011). Here, appellant only challenges the helpfulness of the
expert’s testimony.
Because typical rape-victim behaviors “may lie outside the common
understanding of an average juror,” expert testimony on these behaviors may be helpful
to the jury. Id. at 293. In Obeta, the supreme court limited its analysis to the
admissibility of expert testimony regarding the specific rape-victim behaviors of “delayed
reporting, lack of physical injuries, and submissive conduct during the alleged assault.”
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Id. at 288. As a result, appellant argues that expert testimony can only be introduced in
sexual assault cases when these behaviors are present.
Even if appellant is correct, the record shows that these three behaviors were
present here. J.B. testified that she spoke to the responding police officers about ten
minutes after the alleged assault. But J.B. also stated that she did not immediately
approach the officers, who were looking for her, because she was scared. J.B.’s delay
and reluctance to approach the officers contradicts the first common rape myth that
victims will immediately report the attack. See id. at 293. J.B. also testified that she
sustained scratches and bruising. But the sexual-assault examiner testified that there was
no evidence of tearing or injury to J.B.’s vagina. This testimony contradicts the second
rape myth that victims “suffer severe physical injuries—including vaginal injuries.” See
id. Finally, J.B. testified that she did not resist as appellant took off her pants and that she
unsuccessfully tried to crawl away during the assault. J.B. “tried” to fight back, but could
not move due to appellant’s weight. The sexual-assault examiner also noted that there
was no evidence of defensive maneuvers or injuries. These statements contradict the
third rape myth in Obeta that “victims will forcefully resist their assailant.” See id.
Because the three rape-victim behaviors present in Obeta were also present here, the
district court did not abuse its discretion in admitting the expert testimony.
We further note that the expert here only provided testimony regarding the
delayed-reporting behavior. The expert explained that “[t]here is really a wide range of
behaviors from victims” of sexual assault and that “there are a high number of victims
who, in fact, don’t report sexual assault” because they are ashamed, are afraid others will
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not believe them, or are afraid of retaliation. This testimony was particularly relevant in
light of J.B.’s testimony that she thought the attack was her fault and that she was
reluctant to report the attack to the responding police officers. Consistent with Obeta, the
expert did not opine that J.B. was credible or that a sexual assault had occurred. See id. at
294. In fact, the expert testified that she had no knowledge of the facts of the case. The
expert’s testimony therefore met all of the Obeta requirements for admission.
Because the expert’s testimony regarding typical rape-victim behaviors and rape
myths was relevant and helpful to the jury, the district court did not abuse its discretion in
admitting the expert testimony.
Affirmed.
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