State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A17-1830

State of Minnesota,
Respondent,

vs.

Angel Pablo Torres, Jr.,
Appellant.

Filed October 8, 2018
Affirmed
Smith, Tracy M., Judge

Scott County District Court
File No. 70-CR-16-19774

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Ronald Hocevar, Scott County A ttorney, Todd P. Zettler, Assista nt County Attorney,
Shakopee, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Charles F . Clippert, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Cleary, Chief Judge; Kirk, Judge; an d Smith, Tracy M.,
Judge.
U N P U B L I S H E D O P I N I O N
SMITH, TRACY M., Judge
Appellant Angel Pablo Torres Jr. challenges his conviction of first-degree criminal
sexual conduct, arguing that the d istrict court erred in (1) gr anting the state’s request to

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admit evidence of an alleged prior sexual assault by Torres of another high-school student
and (2) excluding evidence offered by Torres to show that the victim of the charged offense
had previously flirted with him. We affirm.
FACTS
On November 1, 2016, D.R.A. told a high-school resource officer that Torres, a
fellow high-school student and classmate, had just penetrated h er anally, without her
consent, in the boys’ locker room of the high school. D.R.A. reported that she and Torres
left their classroom to get a dr ink of water and that, after th ey used the drinking fountain,
Torres grabbed her wrist and brought her into the boys’ locker room. Torres then led her
to a disabled restroom stall, locked the stall door, and pulled down her pants and his own
pants while she repeatedly told him “no” and “stop.” Torres al so got ahold of D.R.A.’s
cell phone and threatened to drop it in the toilet. He next tu rned D.R.A. around and
penetrated her anally and vaginally with his fingers. After To rres ejaculated onto the
restroom floor, D.R.A. and Torres left the locker room and returned to their classroom.
When she reached the classroom, D.R.A. immediately approached a classmate and
told her that she needed to talk. They left the classroom, and D.R.A. called her boyfriend
and told both him and the classm ate that Torres had raped her. D.R.A. then went to the
school office and reported the sexual assault to a school resou rce officer and to another
student who was waiting in the office. A responding police inv estigator took a full
statement from D.R.A. in which she reported again that Torres h ad raped her. A school
security video showed Torres and D.R.A. leave their classroom, stop at a drinking fountain,

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and later exit the boys’ locker r oom. A sexual-assault examina tion of D.R.A. conducted
that day revealed that D.R.A. sustained a two-centimeter anal tear.
Respondent State of Minnesota c harged Torres with first-degree criminal sexual
conduct in violation of Minn. Stat. § 609.342, subd. 1(e)(i) (2 016). Before trial, Torres
filed notice of his intent to rely on a defense of consent and moved to admit at trial evidence
of D.R.A.’s previous sexual conduct with him, including (1) one instance of prior
consensual sexual intercourse between him and D.R.A., which D.R.A. had reported to the
police investigator, and (2) testimony from J.D.N., a high-school classmate, who reported
observing D.R.A. flirt with Torres and touch his leg one or two days before the date of the
charged offense. The state moved to admit evidence of Torres’s alleged prior sexual assault
of P.J.R., another high-school student.
Both J.D.N. and P.J.R. testified at a pretrial evidentiary hear ing. Following the
hearing, the district court granted the state’s request to admi t the evidence involving
Torres’s prior act against P.J.R and Torres’s request to admit the evidence that he and
D.R.A. had prior consensual sexual intercourse. The district court denied Torres’s request
to admit J.D.N.’s testimony that D.R.A. had previously flirted with Torres.
After a two-day jury trial at which both D.R.A. and Torres testified, the jury found
Torres guilty of first-degree criminal sexual conduct. The dis trict court convicted Torres
of the offense and sentenced him to 144 months in prison.
This appeal follows.

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D E C I S I O N
I. The district court did not abuse its discretion by granting the state’s request to
admit Spreigl evidence of an alleged prior sexual assault by Torres.

Torres argues that the district court erred by granting the state’s request to admit the
evidence of an alleged prior sexual assault by Torres of P.J.R.
We review the district court’s decision to admit “evidence of other crimes, wrongs,
or acts for an abuse of discretion.” State v. Welle, 870 N.W.2d 360, 365 (Minn. 2015). We
will affirm the ruling unless Torres meets his burden to “show that the district court abused
its discretion by admitting the evidence and that the erroneous admission was prejudicial.”
State v. Rossberg , 851 N.W.2d 609, 615 (Minn. 20 14). An erroneous admission is
prejudicial when there is “a r easonable possibility that the wr ongfully admitted evidence
significantly affected the verdict.” State v. Fardan, 773 N.W.2d 303, 320 (Minn. 2009).
Evidence of other crimes, wrongs, or acts is not admissible to prove bad character
or a propensity to commit the charged crime. State v. Ness, 707 N.W.2d 676, 685 (Minn.
2006). However, such evide nce, also referred to as Spreigl evidence, may be admissible
for other, limited purposes. Fardan, 773 N.W.2d at 315-16 (discussing State v. Spreigl ,
139 N.W.2d 167, 171 (Minn. 1965 )). These purposes include evid ence offered as “proof
of motive, opportunity, intent, preparation, plan, knowledge, i dentity, or absence of
mistake or accident.” Fardan, 773 N.W.2d at 316 (quoting Minn. R. Evid. 404(b)).
In determining the admissibility of Spreigl evidence, the district court must ensure
that (1) the state has given notice of its intent to admit the evidence; (2) the state has clearly
indicated what the evidence will be offered to prove; (3) there exists clear and convincing

5
evidence that the defendant participated in the prior act; (4) the evidence is relevant and
material to the state’s case; and (5) the probative value of th e evidence is not outweighed
by its potential for unfair prejudice to the defendant. Minn. R. Evid. 404(b); see also Ness,
707 N.W.2d at 685-86. This five-step procedure is “designed to ensure that the evidence
is subjected to an exacting review.” Ness, 707 N.W.2d at 685 (quotation omitted). “If the
admission of such evidence is a close call, it should be excluded.” Fardan, 773 N.W.2d at
316.
At the pretrial hearing, P.J.R. testified that she knew Torres through his cousin and
that, in October 2015, while she stood in the common area of th e high school, Torres
borrowed her cell phone and then walked away with it and entere d a stairwell. She
followed after him and asked him to return it. Torres refused. He stopped and twice
attempted to kiss her, and then h e grabbed her wrists and place d her hands on top of his
pants, over his erect penis. P.J.R. resisted and told him “no. ” Torres ascended to the
school’s third floor while stil l carrying P.J.R.’s phone and th en asked if she would give
him “oral sex or a hand job.” P.J.R. told him “no.” Torres responded that he would return
the phone if she would let him use it to message a friend for a ride. P.J.R. agreed, and they
sat down next to a locker. While seated, Torres grabbed P.J.R.’s wrist and moved her hand
inside his pants, in direct contact with his erect penis. P.J. R. tried to pull her hand away,
but he grabbed her wrist more tightly. Torres eventually let g o of her hand and returned
the phone.
The district court ruled that the evidence was admissible, reas oning that the state
presented clear and convincing evidence of the prior act throug h P.J.R.’s credible

6
testimony, the evidence was relevant and material proof of Torr es’s common scheme or
plan and the absence of mistake or accident, and its probative value outweighed any
potential for unfair prejudice.
A. Relevance and materiality
Torres argues that the evidence i s not relevant or material pro of of a common
scheme or plan because the charged offense and the prior act in volving P.J.R. are
dissimilar.
Closeness in time, place, and modus operandi, between prior act s and the charged
offense, is considered to increase the probative value of other -acts evidence and to lessen
the risk of improper use of the evidence. Ness, 707 N.W.2d at 688. With respect to modus
operandi, Spreigl evidence admitted to show a common scheme or plan need not be
identical to the charged offense but must have “a marked similarity” to it. Id.
Torres asserts that the circumstances on which the district court relied in ruling that
P.J.R.’s testimony is relevant and material—that both acts occurred at the same high school
and both victims knew Torres, wer e isolated by him, and told hi m “no”—are insufficient
to show a common scheme or plan. However, in addition to those circumstances, the
district court relied on other similarities between the charged offense and the prior act,
including Torres’s use of physical force to overcome the victim s’ resistance to his sexual
advances and his holding hostage the victims’ cell phones to de ter them from leaving.
Torres also brought both victims to isolated areas of the high school and refused to return
their cell phones while he pressured them and, ultimately, forc ed them to engage in
nonconsensual sexual contact with him. Torres’s use of nearly identical tactics in both

7
incidents reflects a markedly s imilar modus operandi and, along with the similar
circumstances of place and familiarity with the victims, demons trates that the evidence is
sufficiently similar with the cha rged offense to constitute pro of of a common scheme or
plan. Therefore, the district court did not err in determining that the Spreigl evidence was
relevant and material to the state’s case.1
B. Risk of unfair prejudice
Torres argues that the probative value of the Spreigl evidence is outweighed by its
risk of unfair prejudice because it improperly suggests to the j u r y t h a t h e h a d a c t e d i n
conformity with a propensity to commit nonconsensual sexual acts.
Unfair prejudice “is not merely da maging evidence, even severel y damaging
evidence; rather, unfair prejudice is evidence that persuades by illegitimate means, giving
one party an unfair advantage.” State v. Schulz, 691 N.W.2d 474, 478 (Minn. 2005). In
balancing the probative value of Spreigl evidence against its prejudicial effect, courts
should consider the state’s need for the evidence in its case a gainst the defendant. Ness,
707 N.W.2d at 690.
Here, the state’s need for Spreigl evidence to strengthen its case on the issue of
consent was significant because D.R.A. and Torres gave conflicting testimony. The district
court also mitigated any potentia l for improper use of the evid ence by providing the jury
two cautionary instructions, both before the state introduced t he evidence and before the

1 Torres also argues that the district court erred in concluding that the Spreigl evidence was
relevant and material to proving an absence of mistake or accident. Because we conclude
that the same Spreigl evidence is admissible proof of Torres’s common scheme or plan, we
need not decide this issue.

8
court submitted the case to the jury. See State v. DeWald, 464 N.W.2d 500, 505 (Minn.
1991) (stating that “the potentia l for prejudicial impact from the Spreigl evidence [is]
arguably lessened by the trial court’s . . . cautionary instructions to the jury”). Further, the
Minnesota Supreme Court has held that Spreigl evidence is admissible and “highly relevant
to the issue of consent” in a cr iminal sexual conduct case when the evidence “showed a
pattern of similar aggressive se xual behavior by [the] defendan t against other women in
the community.” State v. DeBaere, 356 N.W.2d 301, 305 (Minn. 1984). In this case, the
Spreigl evidence tended to show that Torres had engaged in a pattern of similar aggressive
sexual conduct by isolating female high-school students using t heir cell phones and
coercing them to engage in nonconsensual sexual contact. The district court did not abuse
its discretion in concluding that the probative value of the Spreigl evidence is not
outweighed by a risk of unfair prejudice and in admitting the evidence of Torres’s prior act
of alleged sexual misconduct.
II. The district court did not abuse its discretion by excluding evidence offered by
Torres to show that D.R.A. had flirted with him prior to the date of the charged
offense.

Torres argues that the district court abused its discretion by excluding evidence that
D.R.A. flirted with him prior to the date of the charged offense because the court (1) erred
in applying Minn. R. Evid. 412 to determine the admissibility o f the evidence or, in the
alternative, (2) erred in excluding the evidence even if Minn. R. Evid. 412 applies. Torres
contends that the court’s exclusionary ruling violated his cons titutional right to present a
complete defense.

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Torres’s arguments implicate both plain-error and harmless-error analyses. Because
we conclude that Torres does not meet his burden to show that the district court committed
reversible error under either standard of review, we need not d ecide which standard
controls.
A. Plain error
Torres argues that D.R.A.’s prior flirting does not constitute evidence of “previous
sexual conduct” covered by Minn. R. Evid. 4122 and that the district court therefore erred
in applying the rule. However, Torres moved the district court to admit the evidence under
rule 412 and did not seek to admit it under any other evidentia ry rule. A party cannot
“appeal an error that he invited or that could have been preven ted at the district court”
unless the “error meets th e plain error test.” State v. Carridine , 812 N.W.2d 130, 142
(Minn. 2012). Under the plain-e rror test, Torres bears the bur den to show an “(1) error;
(2) that was plain; and (3) that affected substantial rights.” State v. Strommen, 648 N.W.2d
681, 686 (Minn. 2002). “An error is ‘plain’ if it is clear or obvious.” State v. Cao, 788
N.W.2d 710, 715 (Minn. 2010). A plain error is typically shown “if the error contravenes
case law, a rule, or a standard of conduct.” State v. Ramey, 721 N.W.2d 294, 302 (Minn.
2006).

2 Rule 412 generally prohibits evidence of a victim’s “previous sexual conduct” in criminal
sexual-conduct prosecutions unl ess an exception applies. One s uch exception is when
(1) consent is a defense, (2) the sexual conduct involves the accused, and (3) “the probative
value of the evidence is not subs tantially outweighed by its in flammatory or prejudicial
nature.” Minn. R. Evid. 412(1); see also Minn. Stat. § 609.347, subd. 3 (2016) (outlining
identical framework for admitting evidence of a victim’s previous sexual conduct).

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J.D.N. testified that he observe d D.R.A. and Torres talking and laughing often in
the class he shared with them a nd engaging in what he interpret ed to be flirting. J.D.N.
estimated that he had observed D.R.A. place her hand on Torres’s thigh approximately one
o r t w o d a y s b e f o r e t h e d a t e o f t h e c h a r g e d o f f e n s e . H e s t a t e d that D.R.A. and Torres
“seemed kind of close like something was going on.”
Neither Minn. R. Evid. 412 nor Minnesota statute defines the type of prior conduct
by a victim that qualifies as “pr evious sexual conduct.” Torre s cites no Minnesota case,
and we did not find any in our r esearch, holding that a victim’ s prior flirting with the
accused is, or is not, evidence of previous sexual conduct covered by rule 412. Therefore,
even if it was error to consider the flirting described by J.D. N. as sexual conduct under
rule 412, Torres cannot satisfy his burden to show that the error was plain.
B. Harmless error
T o r r e s a l s o a r g u e s t h a t , e v e n i f r u l e 4 1 2 a p p l i e s , e x c l u s i o n o f the evidence of
D.R.A.’s prior flirting was reversible error because the evidence is relevant and probative
of consent and its exclusion implicates his constitutional right to present a defense.
In general, we review the district court’s ruling excluding evidence for a clear abuse
of discretion. State v. Pendleton , 706 N.W.2d 500, 510 (Minn. 2005). In so doing, we
apply a harmless-error test in wh ich “we determine first whethe r the district court erred,
and if so, whether that error was harmless.” State v. Olsen, 824 N.W.2d 334, 340 (Minn.
App. 2012), review denied (Minn. Feb. 27, 2013). But if we determine that the district
court erred in excluding evidence and the error implicates a co nstitutional right, the
defendant is entitled to a new trial “unless the error is harmless beyond a reasonable doubt.”

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State v. Davis, 820 N.W.2d 525, 533 (Minn. 2012). Accordingly, “when the ruling results
in the erroneous exclusion of defense evidence in violation of the defendant’s constitutional
rights, the verdict must be reversed if ‘there is a reasonable possibility that the verdict might
have been different if the evidence had been admitted.’” State v. Graham, 764 N.W.2d 340,
351 (Minn. 2009) (quoting State v. Post, 512 N.W.2d 99, 102 (Minn. 1994)).
The district court determined tha t the evidence of previous fli rting lacked any
probative value with respect to whether D.R.A. later consented to sexual intercourse.
Generally, evidence is relevant if it has “any tendency to make t h e e x i s t e n c e o f a n y
[material] fact . . . more probable or less probable.” Minn. R. Evid. 401. Although Torres
cites no Minnesota case holding that evidence of a victim’s prior flirting with the accused
is relevant to establishing a consent defense, even assuming th at J.D.N.’s testimony has a
minimal tendency to make more or less probable D.R.A.’s consent to sexual intercourse
with Torres, the alleged error is not reversible if there is no reasonable possibility that the
jury would have reached a different verdict if the evidence had been admitted.
The state presented substantial evidence that D.R.A. did not co nsent to sexual
intercourse with Torres, includi ng the following: (1) D.R.A. u nequivocally testified that
she did not consent and told Torres, “no,” “stop,” and “let’s go back to class,” throughout
the assault; (2) within minutes o f the assault, D.R.A. told two c l a s s m at e s a nd a s c ho ol
resource officer that Torres had raped her, and called her boyfriend on her cell phone and
told him the same, (3) D.R.A. later provided the same information to a police investigator;
(4) five witnesses testified that D.R.A. was emotionally distra ught following the assault;
(5) surveillance video showed D.R.A. and Torres exit the boys’ locker room and head

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toward their classroom and then showed D.R.A., approximately one minute later, leave the
classroom with a classmate, gather her belongings, and take out her cell phone; and (6) a
sexual-assault examination of D.R .A. conducted that day reveale d that she suffered an
injury to her anus.
Based on the strength of the sta te’s evidence, it is not appare nt how J.D.N.’s
testimony that he observed mere prior flirting between D.R.A. a nd Torres would have
strengthened Torres’s consent de fense, particularly in light of the weightier evidence,
which was admitted by the distri ct court, that D.R.A. and Torre s had consensual sexual
intercourse a few months earlier. Torres presents no theory to explain how the jury would
have reached a different verdict if J.D.N.’s testimony had been admitted. We conclude
there is no reasonable possibility that the verdict might have been different had J.D.N.’s
testimony of flirting been admitted. Any error in excluding it was harmless beyond a
reasonable doubt.
Affirmed.