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This opinion is nonprecedential except as provided by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
A21-1621

State of Minnesota,
Respondent,

vs.

Christian Portillo,
Appellant.

Filed October 3, 2022
Affirmed
Larkin, Judge

Ramsey County District Court
File No. 62-CR-19-162

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

John J. Choi, Ramsey County Attorney, Jeffrey A. Wald, Assistant County Attorney, St.
Paul, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Sharon E. Jacks, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Reilly, Presiding Judge; Larkin, Judge; and Reyes,
Judge.
NONPRECEDENTIAL OPINION
LARKIN, Judge
Appellant challenges his conviction for second-degree criminal sexual conduct. He
argues that the district court erred in denying his motion for a mistrial, which was based on
2
the prosecutor’s failure to comply with pretrial rulings. Appellant also argues that the
prosecutor engaged in prejudicial misconduct during closing rebuttal argument. We affirm.
FACTS
Respondent State of Minnesota charged appellant Christian Portillo with two counts
of criminal sexual conduct in the second degree for touching the breasts, buttocks, and
vagina of JG. The case was tried to a jury. Before trial, the district court ruled on several
motions and prohibited the state and its witnesses from: (1) referring to JG as the “victim,”
(2) mentioning investigator AS’s military service, (3) eliciting testimony about Portillo’s
alleged harassment of JG’s family, and (4) eliciting testimony from JG’s mother about JG’s
behavioral changes.
At trial, the state presented evidence that Portillo sexually abused JG almost daily
for approximately five years. At the time of the abuse, JG was less than 16 years old. JG
testified that when she was around 11 years old her mother, NS, began a relationship with
Portillo. Portillo moved into NS’s house and started working with NS and JG at NS’s
cleaning company. JG testified that Portillo grabbed her butt, touched her vagina and
breasts over her clothes, and forced his hand under her shirt to touch her breasts. JG
testified that this behavior occurred almost every day, both at home and when Portillo and
JG were alone at work together. The abuse did not end until JG was around 16 years old.
In March 2014, a few months after Portillo moved out, JG first reported the abuse to law
enforcement.
Portillo’s attorney thoroughly cross-examined JG during trial. He emphasized that
JG delayed reporting aspects of the alleged abuse, that her statements to investigators were
3
inconsistent, and that she added new details in later interviews with law enforcement.
Portillo also elicited testimony from JG about her abuse by her uncle. Portillo’s theory at
trial was that JG had confused her memories of abuse by her uncle and incorrectly believed
she had also been abused by Portillo.
JG’s mother NS testified that she never saw any inappropriate behavior between JG
and Portillo. NS claimed that she learned about the allegations directly from JG after
Portillo moved out of her home. An investigator for the state, AS, testified about his initial
meetings with JG and his interview of Portillo, portions of which were played for the jury.
Prior to closing arguments, Portillo moved for a mistrial, which the district court
denied. The jury found Portillo guilty. The district court entered a judgment of conviction
for criminal sexual conduct in the second degree and sentenced Portillo to serve 108
months in prison. This appeal follows.
DECISION
I.
Portillo contends that the district court abused its discretion by denying his motion
for a mistrial. He argues that he is entitled to a new trial based on “the prosecutor’s
misconduct that permeated his trial.”
“A mistrial should not be granted unless there is a reasonable probability that the
outcome of the trial would be different if the event that prompted the motion had not
occurred.” State v. Manthey, 711 N.W.2d 498, 506 (Minn. 2006) (quotation omitted). We
review denial of a mistrial for abuse of discretion. State v. Griffin, 887 N.W.2d 257, 262
(Minn. 2016). In determining whether there is a reasonable probability that the outcome
4
of the trial would have been different, courts may consider various factors, including
whether the presentation of improper evidence was an isolated incident, the strength of the
state’s case, and the district court’s provision of a cautionary instruction. State v. Chavez-
Nelson, 882 N.W.2d 579, 591 (Minn. 2016). “The trial judge is in the best position to
determine whether an error is sufficiently prejudicial to require a mistrial or whether
another remedy is appropriate.” Griffin, 887 N.W.2d at 262.
“A prosecutor has an affirmative obligation to ensure that a defendant receives a fair
trial, no matter how strong the evidence of guilt.” State v. Coleman, 944 N.W.2d 469, 485
(Minn. App. 2020) (quotation omitted), aff’d, 957 N.W.2d 72 (Minn. 2021). “It is
misconduct for a prosecutor to violate an order from the district court.” State v. Nowels ,
941 N.W.2d 430, 437 (Minn. App. 2020), rev. denied (Minn. June 16, 2020).
Portillo argues that the prosecutor violated multiple court orders and elicited
testimony regarding inadmissible evidence, thereby unfairly prejudicing the jury against
him. Specifically, Portillo argues that he was harmed because (1) JG testified that Portillo
made her “snort some kind of powder,” (2) the prosecutor referred to JG as the “victim” at
trial, (3) investigator AS testified that he was on military leave, and (4) NS attempted to
testify that she learned of the alleged abuse after installing cameras at her home and that
JG’s behavior had changed. Portillo concedes that none of the testimony was intentionally
elicited by the prosecutor.
The district court expressed frustration with the state’s failure to comply with its
pretrial orders, but it ultimately concluded that a mistrial was not an appropriate remedy.
The district court explained its reasoning as follows:
5
I am disturbed by the number of times during the trial that
witnesses have gone into territories that they were not allowed
to go into, and it was made clear that that was off limits.

The part about [Portillo] having [JG] snort, and I didn’t
hear what came after that, I’m looking at the jurors and anyone
who heard that is thinking drugs. An adult man and a teenage
girl and Bill Cosby has been in the news lately. [NS]’s
comment about cameras, she didn’t get very far, but she got far
enough to conjure up in the minds of anyone who heard that
something may have been caught on a camera. Where the jury
might go with that, I have no idea. There are lots of places they
can go with that. Comments about [JG] or [NS] observing
[JG]’s demeanor, the way the question was phrased, and I
thought for a split second I should stop and make that question
more pointed, but I didn’t. I’m kicking myself now that I
didn’t. I don’t believe that [the prosecutor] intended to elicit
that, but the way the question was phrased opened the door for
her to do that.

. . . [AS]’s military service by itself, sure that might be
innocuous. I might not view him with some higher level of
credibility or respect if that was the only thing in this trial that
had gone like that, I’d think no problem. But it is a problem
because it kept happening. When you put all these together,
it’s a problem.

I do not believe that it rises to the level of a mistrial. I
believe that those matters can be addressed in a way that
reminds jurors of their duty, to consider only what is before
them and that testimony that I order them to disregard has to
be disregarded. We have some smart, patient jurors and I think
they can and will do that. I do not believe that the information
that was improperly put by the witnesses in front of the jury is
such that [Portillo] cannot get a fair trial. So the motion is
denied.

Portillo argues that the district court erred by relying on the unintentional nature of
the violations. But that was a relevant consideration because this court is “much more
likely to find prejudicial misconduct when the state intentionally elicits impermissible
6
testimony.” State v. McNeil, 658 N.W.2d 228, 232 (Minn. App. 2003). The critical inquiry
is whether the misconduct “was so prejudicial as to have substantially affected the jury and
denied appellant a fair trial.” Id.
We also note that the challenged testimony was either limited in scope, withdrawn,
or corrected by the district court. The most concerning testimony was the suggestion that
Portillo provided JG with drugs. But the reference was brief, non-responsive to the
question asked, and swiftly addressed by the district court, which immediately instructed
the jury to disregard the response. “When a court instructs a jury to disregard an improper
question, we presume the jurors followed the instruction.” Griffin, 887 N.W.2d at 262.
As to the use of the word “victim, ” the prosecutor referred to JG as a victim only
once at trial during the following exchange with AS, the investigator for the state:
Q: [W]hen you’re given a case, tell me about what you do
from there.
A: It depends on what the case is. But typically it involves
reading the reports, potentially following up with officers,
following up with the victim, victim advocate. At some point
along the case, attempting to make contact with the alleged
individual involved in the crime.
Q: [A]t some point, did you receive a case involving an
individual by the name of Christian Portillo?
A: Yes, ma’am.
Q: Do you remember when you -- an approximate
timeframe of when you were assigned the case?
A: It would have been 2018.
Q: And so you talked briefly about what you do in a general
case when you’re assigned it. Is it fair you would have read
the reports and gone through the case that had been worked up
thus far?
A: Yes, ma’am.
Q: Did you do that in this particular case?
A: Yes, ma’am.
Q: Did you identify the victim?
7
A: Yes, ma’am.

(Emphasis added.)
Although the district court had ruled that references to the “victim” were not
allowed, the court noted that it did not expect “100 percent” compliance with that ruling.
In that context, the challenged reference seems inadvertent.
As to AS’s military service, he testified, “I’m currently on military leave right now
from the department. Before I left, I was assigned to the sex crimes section, domestic unit,
juvenile unit, patrol supervisor and patrol.” AS’s statement was brief, Portillo did not
object at the time, and the fact of AS’s military service was not repeated or referenced
again by AS or the prosecutor.
As to NS’s testimony, when asked when she became aware of the allegations, NS
first testified “[n]ot during the time [Portillo] was living at home.” The state then asked
“[w]hen did you find out” to which NS replied, “[w]hen I installed cameras and he - -,”
before being cut off by a defense objection. The state withdrew the question that prompted
the response. Additionally, although the district court had ruled that NS was not to testify
about changes in JG’s behavior, evidence of a complainant’s change in behavior after a
sexual assault is commonly admitted as corroborative evidence. See, e.g., State v. Wright,
679 N.W.2d 186, 190 (Minn. App. 2004) (“The testimony from others about K.R.’s
demeanor, emotional condition, and change in behavior after the sexual assault also is
strong corroborative evidence.”), rev. denied (Minn. June 29, 2004) ; State v. Mosby, 450
N.W.2d 629, 635 (Minn. App. 1990) (“Furthermore, N.D.’s upset, emotional state after the
assault provides further corroboration.”), rev. denied (Minn. Mar. 16, 1990). Although NS
8
mentioned JG’s behavioral changes, NS did not suggest they were connected to the sexual-
abuse allegations, and the prosecutor did not argue that JG’s behavior corroborated her
allegations. We therefore discern no prejudice.
We note that JG testified at length about the abuse and that defense counsel
thoroughly cross-examined her, providing the jury with multiple reasons to doubt her
credibility. Such cross-examination mitigated any prejudice stemming from the state’s
unintentional elicitation of excluded evidence. See In re Welfare of D.D.R., 713 N.W.2d
891, 902 (Minn. App. 2006) (finding that though the prosecutor elicited improper
testimony, the damage was lessened because “appellant had every opportunity to cross-
examine, and did so, regarding the challenged testimony.”)
Once again, the district court “is in the best position to determine whether an error
is sufficiently prejudicial to require a mistrial. ” Griffin, 887 N.W.2d at 262. The record
here shows that the district court swiftly and carefully addressed the violations, assessed
the prejudicial impact of those violations, and concluded that given the limited nature of
the improper references and the court’s curative instruction, a mistrial was not warranted.
Applying the deference that is due, we discern no abuse of discretion in the district court’s
approach or its denial of Portillo’s request for a mistrial. See State v. Marchbanks, 632
N.W.2d 725, 729 (Minn. App. 2001) (deferring to district court’s observations and
impressions in denying a mistrial motion).
II.
Portillo contends that the prosecutor incorrectly described the presumption of
innocence in rebuttal closing argument and that the alleged error supports reversal. “It is
9
improper for a prosecutor to misstate the presumption of innocence in a criminal case.”
Moore v. State, 945 N.W.2d 421, 433 (Minn. App. 2020) (quotation omitted), rev. denied
(Minn. Aug. 11, 2020). When evaluating alleged prosecutorial misconduct during a
closing argument, we “look to the closing argument as a whole, rather than to selected
phrases and remarks.” State v. Hallmark, 927 N.W.2d 281, 308 (Minn. 2019) (quotation s
omitted).
Portillo did not object to the alleged prosecutorial error. If the defendant fails to
object to alleged prosecutorial misconduct during trial, the alleged misconduct is reviewed
under a modified plain-error standard. State v. Ramey, 721 N.W.2d 294, 302 (Minn. 2006).
Under modified plain- error review, the defendant bears the burden of establishing error
that is plain. “An error is plain if it is clear or obvious; usually this means an error that
violates or contradicts case law, a rule, or an applicable standard of conduct.” State v.
Bustos, 861 N.W.2d 655, 660-61 (Minn. 2015) (quotation). If the defendant establishes
error that is plain, the burden shifts to the state to prove that there is no reasonable
likelihood that the absence of the misconduct would have significantly affected the jury’s
verdict. Ramey, 721 N.W.2d at 302. Even if the error affected the defendant’s substantial
rights, this court would not address the error unless doing so is necessary to ensure fairness
and the integrity of the judicial proceedings. Id.; see Pulczinski v. State, 972 N.W.2d 347,
356 (Minn. 2022) (“In summary, appellate courts have a limited discretionary power to
grant relief based on an unobjected -to error, which may be exercised only when a plain
error affected a particular defendant’s substantial rights and a failure to correct the error
10
would have an impact beyond the current case by causing the public to seriously question
the fairness and integrity of our judicial system.”).
The prosecutor here explained the presumption of innocence as follows:
The presumption of innocence comes with an individual
accused, unless and until the state proves its case beyond a
reasonable doubt. [Defense counsel] correctly told you that.
But it leaves him when the state has proven its case beyond a
reasonable doubt. He no longer has that presumption. You’ve
heard all of the evidence. You’ve heard all of the state’s case
against [Portillo]. He no longer has that presumption of
innocence. He has been proven guilty beyond a reasonable
doubt. We’ve gone through those elements. You’ll be able to
talk and consider each other’s thoughts and the information
you heard throughout the course of the case, but he no longer
has that presumption of innocence.

Portillo argues that the prosecutor’s statement on the presumption of innocence was
error and that the error was plain. He relies on Moore, in which this court concluded that
the following argument misstated the law and constituted error that was plain:
The defendant started this trial the way every criminal
defendant starts every trial, with a complete presumption of
innocence. But at the end of the State’ s case, now that all of
the evidence is in, and as you begin deliberations, he’s no
longer entitled to that presumption.

The State has the burden of proof, and we gladly accept
this burden, to prove each and every essential element that the
Judge read to you beyond a reasonable doubt.

945 N.W.2d at 433-34. Even though th at statement constituted error that was plain, this
court held that Moore was not entitled to relief because the district court properly instructed
the jury on the presumption of innocence, the prosecutor discussed the state’s high burden
11
of proof in closing argument, and the misstatement was a small portion of the closing
argument, which spanned 57 pages of transcript. Id. at 434.
We need not determine whether the prosecutor’s description of the presumption of
innocence in this case constitutes plain error because we are satisfied that the alleged error
did not affect Portillo’s substantial rights. See State v. Moore, 863 N.W.2d 111, 119 (Minn.
App. 2015) (“If an appellate court concludes that any requirement of the plain-error test is
not satisfied, the appellate court need not consider the other requirements”), rev. denied
(Minn. July 21, 2015). To determine whether the misconduct significantly impacted the
jury verdict, we consider “the pervasiveness of improper suggestions and the strength of
evidence against the defendant.” State v. Parker, 901 N.W.2d 917, 926 (Minn. 2017)
(quotation omitted).
In this case the alleged misstatement occurred once in a closing argument that
spanned 18 pages of transcript. And the single misstatement occurred in rebuttal closing
argument, after defense counsel argued that the State had a high burden to prove its case
beyond a reasonable doubt. Finally, the district court correctly described the presumption
of innocence in its final jury instructions and instructed the jury to disregard any statements
given by an attorney that differ from the law given by the court. We presume that the jury
followed those instructions. State v. Pendleton, 706 N.W.2d 500, 509 (Minn. 2005).
In sum, the circumstances here are like those in Moore: the district court properly
instructed the jury on the presumption of innocence, defense counsel discussed the state’s
high burden of proof in closing argument, and the alleged misstatement was a small portion
of the closing argument as a whole. We are therefore persuaded that the alleged error did
12
not affect Portillo’s substantial rights, and he is not entitled to relief under the modified
plain-error standard.
III.
Portillo contends that the cumulative effect of the alleged trial errors denied him a
fair trial. A defendant “is entitled to a new trial if the errors, when taken cumulatively, had
the effect of denying [him] a fair trial.” State v. Yang, 774 N.W.2d 539, 560 (Minn. 2009)
(quotation omitted). “When considering a claim of cumulative error, we look to the
egregiousness of the errors and the strength of the state’s case. Where the evidence of guilt
is strong, and the case is not close factually, we are less inclined to order a new trial for
cumulative error.” State v. Williams, 908 N.W.2d 362, 366 (Minn. 2018) (quotations and
citation omitted).
Portillo cites State v. Williams, 525 N.W.2d 538, 544 (Minn. 1994), and Bustos, 861
N.W.2d at 665, to support his request for relief under the cumulative-error standard. In
Williams, the state elicited hearsay evidence that the defendant was a drug courier and
introduced drug-courier-profile evidence as proof of the defendant’s guilt. 525 N.W.2d at
544-45, 549. Admission of that evidence violated caselaw, and there was no indication in
that case that the district court took steps to reduce the prejudicial impact of the evidence.
In Bustos, the district court provided an incorrect jury instruction that “erroneously
expanded the definition of domestic abuse” and precluded defense counsel from arguing
that the state failed to prove at least two prior incidents of domestic assault beyond a
reasonable doubt. 861 N.W.2d at 660-63 . The court found that the district court’s errors
13
“seriously affected the fairness, integrity or public reputation of the judicial proceedings.”
Id. at 658.
The errors here are not as egregious as those in Williams and Bustos. And t he
resulting prejudice was minimal, as described in sections I and II of this opinion. We
therefore conclude that the cumulative effect of the alleged errors did not deny Portillo a
fair trial.
Affirmed.