State of Minnesota, Respondent,

This opinion is nonprecedential except as provided by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

STATE OF MINNESOTA
IN COURT OF APPEALS
A21-1543

State of Minnesota,
Respondent,

vs.

Noe Cervantes Diaz,
Appellant.

Filed December 19, 2022
Affirmed
Ross, Judge

Scott County District Court
File No. 70-CR-20-4690

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

Ronald Hocevar, Scott County Attorney, Todd P. Zettler, Assistant County Attorney,
Shakopee, Minnesota (for respondent)

Charles F. Clippert, St. Paul, Minnesota (for appellant)

Considered and decided by Ross, Presiding Judge; Larkin, Judge; and Bryan, Judge.
NONPRECEDENTIAL OPINION
ROSS, Judge
A jury found Noe Diaz guilty of first-degree criminal sexual conduct after the state
accused him of molesting his stepdaughter at least one hundred times while she was
between the ages of n ine and thirteen. We are unpersuaded by Diaz’s five arguments
challenging his conviction. We reject Diaz’s speedy-trial argument because the pandemic-
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caused delay did not prejudice him. We reject his contention that the district court should
have examined the victim’s counseling records because Diaz offered no plausible showing
that the records likely contain material information favorable to his defense. We reject his
complaint that the district court unfairly refused to allow testimony about immigration-
related benefits available to crime victims because we are satisfied beyond a reasonable
doubt that the testimony would not have affected the jury’s finding of guilt. For the same
reason and others, we also reject his argument that a witness’s reference to his deportation
status requires a mistrial. And we reject his contention that the district court should not
have instructed the jury that guilt can re st on a single witness’s testimony because the
instruction did not misstate the law and resulted from his attorney’s potentially confusing
statements to the contrary. We therefore affirm.
FACTS
A girl (whom we will call Mary for the sake of her privacy) was nine years old when
her mother married appellant Noe Diaz. About four years into the marriage, Mary’s mother
found a handwritten note that had fallen from Mary’s pocket. Mary had recently written
the note in a letter-to-God exercise that she participated in during a Catholic-school retreat.
The note read in part, “God help me. I can’t stand this anymore.” Mary’s mother pressed
her to reveal the note’s meaning, and Mary disclosed that Diaz had sexually molested her.
Mary later revealed that he had done so about twice weekly since shortly before the
couple’s wedding. She explained how it began and escalated over time. Diaz went from
touching her breasts, to touching her vagina, to about 60 incidents of vaginal penetration.
Each assault lasted about 25 minutes.
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Mary and her mother reported Diaz’s conduct to the Shakopee police. Police
arrested Diaz, and Detective Nicki Marquardt interviewed him in jail. He told Detective
Marquardt that he previously touched Mary’s leg near her vagina, but he otherwise denied
engaging in the conduct Mary had recounted. The state charged Diaz with first- degree
criminal sexual conduct.
Before trial, Diaz moved the district court to examine Mary’s school counseling
records in camera, supposing that Mary spoke with her school counselor about family
immigration-related matters relevant to the criminal allegations. The district court denied
his motion because Mary had told police that she never discussed the abuse with her
counselor and because Diaz did not support his speculation that Mary spoke to her
counselor about the family’s immigration issues. Diaz similarly asked the district court to
receive evidence of the witnesses’ knowledge of the immigration-related benefits available
to crime victims, reasoning that Mary and her mother had fabricated the allegations so they
could remain in the United States. He supported his theory with a record of a conversation
between the county attorney’s office and an attorney whom Diaz said would represent
Mary’s mother to obtain the type of visa available to cr ime victims. Mary informed the
district court that she knew little about the visa program and had never discussed it with
her mother or anyone else. The district court excluded all immigration-related evidence,
finding that it lacked probative value and would unduly prejudice the prosecution.
Diaz filed a written demand for a speedy trial on May 27, 2020, two-and-a-half
months after the state charged him, and the district court set trial for September 15, 2020.
Because of the COVID-19 pandemic, the district court rescheduled the trial four times.
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Diaz and the state requested the first two continuances, after which the chief justice
suspended jury trials, causing the district court to reschedule the trial twice more. See Order
Governing the Continuing Operations of the Minnesota Judicial Branch , No.
ADM20-8001, at 2 (Minn. Nov. 20, 2020); Order Governing the Continuing Operations
of the Minnesota Judicial Branch, No. ADM20-8001, at 2 (Minn. Jan. 21, 2021). Diaz
twice unsuccessfully sought exceptions to the chief justice’s suspension. He remained
incarcerated pending trial, which began on April 8, 2021, 316 days after his speedy-trial
demand.
At trial, Mary recounted the sexual abuse summarized above.
Her mother testified about the circumstances of Mary’s allegations. Questioned
whether Mary told her why she had not previously disclosed Diaz’s abuse, Mary’s mother
testified, “[S]he . . . [told me] that she wanted to wait until she went to college in order to
tell me about those things. But she knew that [Diaz] had a deportation order and that us as
a family had decided that we would all go together.” The next day Diaz moved the district
court to declare a mistrial based on that reference to Diaz’s deportation status. The district
court denied the motion.
During closing arguments, Diaz’s trial attorney rhetorically asked the jury, “Is there
any piece of evidence or testimony other than [Mary] herself that could prove that Noe
Diaz committed a crime?” He explained, “So the State of Minnesota is asking you to find
Mr. Diaz guilty beyond a reasonable doubt based on the word of one person.” And he
urged, “Even if you found that I kind of think I believe [Mary], that’s not enough. You
can’t convict somebody of a crime just on that.” Expressly concerned that jurors might
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interpret defense counsel’s comments as misstatements of law, the district court instructed
them, “The testimony of a single witness may be sufficient evidence, if believed, to meet
the burden of proof beyond a reasonable doubt.” It also instructed jurors on their role to
determine witness credibility and the state’s burden to prove its allegations beyond a
reasonable doubt.
The jury found Diaz guilty of first-degree criminal sexual conduct. The district court
convicted Diaz and sentenced him to serve 162 months in prison followed by ten years of
conditional release. Diaz appeals.
DECISION
Diaz raises five arguments challenging his conviction: (1) that the district court
violated his right to a speedy trial by beginning trial 316 days after he demanded a speedy
trial; (2) that the district court abused its discretion by denying his request for an in camera
review of Mary’s school counseling records; (3) that the district court violated his
Fourteenth and Sixth Amendment rights by preventing him from introducing immigration-
related testimony; (4) that the district court abused its discretion by denying his request for
a mistrial; and (5) that the district court abused its discretion by instructing the jury that a
single witness’s testimony could be sufficient to meet the state’s burden. For the following
reasons, none of Diaz’s arguments persuades us to reverse his conviction.
I
We are not persuaded to reverse by Diaz’s contention that the district court violated
his right to a speedy trial. The federal and state constitutions afford criminal defendants the
right to a speedy trial. U.S. Const. amend. VI; Minn. Const. art. I, § 6. Although neither
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constitution defines “speedy,” by rule a Minnesota defendant’s trial must begin within 60
days of his demand for a speedy trial, absent good cause justifying a delay. Minn. R. Crim.
P. 11.09(b). We review claimed speedy -trial violations de novo. State v. Taylor, 869
N.W.2d 1, 19 (Minn. 2015). In doing so, we consider the four so-called Barker factors:
(1) the length of the delay; (2) the reason for the delay; (3) whether the defendant asserted
his speedy-trial right; and (4) whether the delay prejudiced the defendant’s case. State v.
Windish, 590 N.W.2d 311, 315 (Minn. 1999) (citing Barker v. Wingo, 407 U.S. 514, 530
(1972)). The state concedes, and we agree, that the first and third factors favor Diaz because
he asserted his right to a speedy trial and because the delay was longer than 60 days. This
triggers further analysis, and we therefore consider factors two and four.
The second Barker factor—the reason for the delay—assesses who bears
responsibility for it. Id. at 316. The supreme court recently held that “trial delays due to the
statewide orders issued in response to the COVID-19 global pandemic do not weigh against
the State.” State v. Paige, 977 N.W.2d 829, 838 (Minn. 2022). Put differently, the state
does not bear the responsibility for the pandemic-caused delay. The second Barker factor
therefore favors neither Diaz nor the state.
We are not persuaded otherwise by Diaz ’s emphasis that, unlike the Paige
defendant, he requested and was denied exceptions to the chief justice’s trial-suspension
orders and the district court here relied on the inability to social distance in the “smaller-
than-average courtrooms” in Scott County when finding good cause to continue the trial.
Neither of these circumstances materially distinguishes this case from Paige, where the
supreme court declined to assess the second Barker factor against the state because “the
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emergency prompting the COVID-19 [trial- suspension] orders was an external factor
outside of the court’s control.” Id. at 840. The same trial-suspension orders—not the size
of the courtrooms or the district court’s decision not to allow an exception—caused the
delay here.
The fourth Barker factor likewise does not favor Diaz. We consider three interests
when we decide whether a delay prejudiced a defendant: “(1) preventing oppressive
pretrial incarceration; (2) minimizing the anxiety and concern of the accused; and
(3) preventing the possibility that the defense will be impaired.” Windish, 590 N.W.2d at
318. The third interest most impacts our prejudice assessment. Id. We do not ask only
whether the defendant was prejudiced by the delay but whether the prejudice was more
than minimal. Paige, 977 N.W.2d at 841. Like the Paige defendant, Diaz offers only
generalized assertions that the three interests prejudiced him. He says that his pretrial
incarceration was more oppressive than usual because of the pandemic-related risks in jail.
The Paige court dismissed a similar assertion because “the alleged hardships were caused
by restrictions put in place to mitigate the effects of a global pandemic” rather than being
caused by the delay. Id. at 842. The Paige court’s reasoning also foreshadowed Diaz’s
complaint that he suffered anxiety during the delay: “[Although] Paige may have
experienced anxiety and concern while waiting for his trial [and] that stress may have even
been exacerbated by the pandemic, the anxiety and concern must be specifically related to
the delay.” Id. Because Paige’s claims of stress “would theoretically apply to anyone who
is involved in a trial during the COVID- 19 pandemic,” the Paige court deemed “his
anxiety-and-concern argument” to be “unpersuasive.” Id . Diaz contends third that the
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passage of time impaired his defense , asserting that witness memories had faded. But he
identifies no witness or potential witness whose memory diminished materially because of
the delay, and nothing we have seen in the trial transcript suggests that any witnesses had
significant difficulty recalling any details relevant to the prosecution or defense. Diaz has
failed to demonstrate that the delay caused him any significant prejudice.
Despite Diaz’s demand and the unusually lengthy delay, under these circumstances
we see no unconstitutional speedy-trial violation.
II
Diaz unconvincingly challenges the district court’s refusal to review Mary’s school
counseling records in camera. A criminal defendant may ask the court to so examine
confidential records. State v. Paradee, 403 N.W.2d 640, 642 (Minn. 1987). But the district
court acts within its discretion to deny the request if the defendant makes no plausible
showing that the evidence would be both material and favorable to his defense. State v.
Hummel, 483 N.W.2d 68, 72 (Minn. 1992). The district court acted within its discretion by
denying Diaz’s request because Diaz never made a plausible showing of materiality and
favorability. The supreme court’s low assessment of the Hummel defendant’s argument fits
here as well: “His motion and brief gave the trial court no theories [as to] . . . why the file
was reasonably likely to contain information related to the case.” Id. Diaz does not claim
that Mary ever told her counselor about the abuse, and Mary testified that she did not. Diaz
speculates that Mary spoke with her counselor about immigration matters that might relate
to his defense, but this falls far short of establishing that the examination is “reasonably
likely to contain information related to the case.” The challenge fails.
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III
Diaz argues that the district court violated his due-process and confrontation rights
when it prevented him from cross-examining Mary and her mother on the immigration-
related benefits available to crime victims. Diaz has a constitutional right to due process,
U.S. Const. amend. XI V, including the right to present a complete defense, California v.
Trombetta, 467 U.S. 479, 485 (1984). He has a related right to confront his accusers. U.S.
Const. amend. VI. Diaz sought, but the district court denied him, the opportunity to explore
whether Mary might have fabricated the allegations so the family might qualify for a type
of visa available to crime victims who are immigrants.
The state defends the district court’s refusal to allow Diaz to cross -examine Mary
and her mother in his effort to expose a potential reason for Mary to have fabricated the
accusation. We will hold an error in the district court’s exclusion of evidence harmless if
we are satisfied beyond a reasonable doubt that, if the evidence had been admitted and the
damaging potential of the evidence fully realized, a reasonable jury would have reached
the same verdict. State v. Post, 512 N.W.2d 99, 102 (Minn. 1994); Delaware v. Van
Arsdall, 475 U.S. 673, 684 (1986). Without addressing whether the district court’s
evidentiary decision was flawed, we resolve the issue based on this harmless-error review.
We are convinced beyond a reasonable doubt that the challenged evidence would
not have altered the jury’s verdict. Mary informed the district court that she knew little
about the visa program and had never discussed it with her mother or anyone else. Diaz
offered no evidence to call this testimony into doubt. Mary could not have been motivated
by an immigration benefit about which she was uninformed. Although Mary’s mother
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knew about the visa, Mary testified that her mother never discussed it with her, making her
mother’s knowledge irrelevant to Mary’s accusation. The excluded line of questioning
therefore could not have reasonably affected the verdict.
IV
Diaz contends that the district court erroneously denied his motion for a mistrial
based on Mary’s mother’s reference to his deportation status. The district court should not
grant a mistrial unless “a reasonable probability” exists that the trial would have come out
differently “if the event that prompted the motion had not occurred.” State v. Manthey, 711
N.W.2d 498, 506 (Minn. 2006) (quotation omitted). The district court is in the best position
to assess any prejudice from the event, and we therefore review a denial only for an abuse
of discretion. State v. Griffin, 887 N.W.2d 257, 262 (Minn. 2016). The district court refused
to declare a mistrial here because Mary’s mother mentioned deportation only once during
her testimony and because no other witness discussed Diaz’s immigration status. The
record supports this determination. We are mindful that making the jury aware that a
defendant is subject to deportation might induce speculation in a manner that prejudic es
the defendant, even if the comment occurs only once. But we are nevertheless satisfied
that, here, the district court acted within its discretion by denying the mistrial motion. The
context of the statement did not put the emphasis on Diaz’s deportation status but on
Mary’s concern that her accusation might separate the family. The district court also
reasonably offered to provide a curative instruction to allay concern that the reference
might unfairly prejudice Diaz, but Diaz declined the offer. Having declined the district
court’s attempt to mitigate potential prejudice, Diaz is not well positioned to complain that
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prejudice required the district court to declare a mistrial. On balance, we conclude that the
district court’s denial did not constitute an abuse of its discretion.
V
Diaz argues that the district court improperly instructed the jury that “[t]he
testimony of a single witness may be sufficient evidence, if believed, to meet the burden
of proof beyond a reasonable doubt.” We review a district court’s jury instructions for
abuse of discretion, and a district court abuses its discretion if the jury instructions
“confuse, mislead, or materially misstate the law.” Taylor, 869 N.W.2d at 14–15 (quotation
omitted). The challenged jury instruction did not misstate the law. In a criminal sexual
conduct prosecution, the victim’s testimony need not be corroborated to support a
conviction; indeed, in any criminal case a conviction may rest on the testimony of a single,
credible witness. Minn. Stat. § 609.347, subd. 1 (2022); State v. Hill, 172 N.W.2d 406, 407
(Minn. 1969). Diaz accurately cites State v. Johnson for the proposition that we held that
the district court erred by “instruct[ing] the jury that corroboration is not required,”
reasoning that “the lack of corroboration is an evidentiary matter, rather than a substantive
matter.” 679 N.W.2d 378, 388 (Minn. App. 2004), rev. denied (Minn. Aug. 17, 2004). The
state requests that we overrule Johnson, arguing that its reasoning is flawed. The state did
not sufficiently brief th at request, see State v. Noor, 964 N.W.2d 424, 435 (Minn. 2021)
(quotation omitted) (emphasizing that an effective challenge to precedent requires a
compelling reason that establishes that the prior decision is not merely wrong but “clearly
and manifestly erroneous”), and we need not address the request in any event here. This is
because the district court has broad discretion to issue curative instructions to respond to
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erroneous, confusing, or misleading remarks made by counsel during closing arguments.
See S tate v. Breaux, 620 N.W.2d 326, 333 (Minn. App. 2001). And unlike the
circumstances in Johnson, in this case the ambiguous statements in defense counsel’s
closing argument that we have recounted above reasonably concerned the district court that
the jury might be misled to believe that a victim’s testimony alone could not, as a matter
of law, support a guilty verdict. The district court therefore acted well within its discretion
by averting the potential confusion with the legally accurate jury instruction.
We add that we would not reverse even if we accepted Diaz’s argument that the
district court should not have so instructed the jury. After holding the instruction erroneous
in Johnson, we also held that the error was harmless because the district court also properly
instructed the jury on the state’s burden of proof. 679 N.W.2d at 388. Likewise here, the
district court properly instructed the jury on the state’s burden to prove Diaz’s guilt beyond
a reasonable doubt. This renders harmless any error in giving the single-witness instruction.
Affirmed.