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This opinion is nonprecedential except as provided by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
A22-0756

State of Minnesota,
Respondent,

vs.

Emilio Ozornia,
Appellant.

Filed June 20, 2023
Affirmed
Ross, Judge

Kandiyohi County District Court
File No. 34-CR-21-191

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

Shane D. Baker, Kandiyohi County Attorney, Willmar, Minnesota (for respondent)

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

Considered and decided by Wheelock, Presiding Judge; Ross, Judge; and
Rodenberg, Judge.
∗

∗ Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
2
NONPRECEDENTIAL OPINION
ROSS, Judge
Emilio Ozornia sold 24 grams of methamphetamine to a man who was unknowingly
serving as a middleman for a government informant’s controlled drug purchase from
Ozornia. Ozornia appeals from his consequent conviction of first-degree sale of a
controlled substance, contending first that the prosecutor engaged in misconduct by calling
the confidential informant as a trial witness knowing that the informant would refuse to
testify and second that the district court violated his Confrontation Clause rights by
admitting into evidence an audio recording captured by the transmitter that the informant
wore immediately before and during the transaction. Because neither alleged error unduly
prejudiced Ozornia’s defense and because we are not persuaded by the arguments in his
supplemental brief, we affirm.
FACTS
A confidential reliable police informant, whom we will call John to preserve his
privacy, contacted a multijurisdictional drug and gang task force comprised of law
enforcement agencies in March 2020, offering to buy drugs under police surveillance. John
communicated directly with task force agent Joshua Helgeson, a Willmar police officer
assigned to the task force. Agent Helgeson arranged for John to perform a controlled drug
buy. He met with John, searched him to confirm that he possessed no drugs, outfitted him
with an audio-transmitting and recording device, and gave him cash for the controlled buy.
Task force agents inconspicuously watched John approach a predetermined house, where
John met with and spoke briefly with appellant Emilio Ozornia.
3
Ozornia did not immediately sell drugs to John. Instead, Ozornia went toward a
different house about a block a way. John spoke to the observing officers through the
transmitting device and by phone, announcing that he was heading to the second house to
meet again with Ozornia. On his way, John encountered an acquaintance, whom we will
call Scott to maintain his privacy. Rather than make the purchase himself as planned, John
asked Scott to “run over there and grab that zip” from Ozornia and handed him the purchase
money. John did not tell Scott that the transaction was under police surveillance. He and
Scott walked toward the house to meet Ozornia, and both went to the backyard. The officers
lost sight of them, but they continued to listen through the transmitter as the events
unfolded. Scott approached the back door alone, leaving John in the yard. Scott handed
Ozornia the cash through the back door, and Ozornia handed Scott a clear plastic bag
containing a white substance. Scott walked over to John and handed him the bag.
John and Scott separated. John walked about two blocks from the house, and he met
with Agent Helgeson. He gave Agent Helgeson the bag containing the white substance,
which forensic testing later revealed to be about 24 grams of methamphetamine. The state
charged Ozornia with first-degree controlled substance sale.
On the day of Ozornia’s trial, the prosecutor informed the court that John had
indicated that he would refuse to testify. The prosecutor asked “how the Court wants to
handle that if there’s going to be anything outside the presence of the jury.” The district
court responded that it would address the issue of John’s refusal to testify after testimony
from the state’s first witnesses.
4
Scott was the state’s first witness. Scott recounted the events just described. He
acknowledged that the state had also charged him with a first-degree controlled substance
offense because of his participation in the purchase and that he avoided incarceration by
agreeing to plead guilty to a fourth-degree controlled substance offense. When a sked
whether he was getting anything in exchange for his testimony, Scott answered, “I don’t
believe so.”
The prosecutor then called John to the witness stand. The district court excused the
jury and addressed John’s reported refusal to testify. John advised the district court that he
“wish[ed] not to testify.” The district court explained that, because the state had offered
him use immunity, the state could not use his testimony in criminal proceedings against
him. And it warned that refusing to testify could result in his being held in contempt of
court. John responded, “Yeah, I’m fine with that. You can charge me with whatever you
guys want.” The district court again explained the consequences of refusing to testify and
asked John, “And do you know how you’re going to proceed here today?” John replied, “I
want contempt. Take me to jail.”
The prosecutor asked the district court to clarify the impact a contempt charge could
have on John’s pending criminal penalties, specifically that he “would not get credit for
any time served on a contempt charge against his pending criminal sanctions.” The district
court agreed that this could be a consequence if John was held in contempt. The district
court offered John a brief time to speak with his lawyer. John declined the offer, stating,
“I’ve got my mind set.”
5
The jury returned to the courtroom, and the prosecutor called John to the witness
stand. The prosecutor asked John to state and spell his name, and he did. The prosecutor
asked whether John went by any other name and whether he knew Scott. John answered
yes to both questions. The prosecutor next asked whether John provided Scott with cash.
John refused to respond. The prosecutor then sought and received the district court’s
permission to treat John as a hostile witness and began asking leading questions. The
prosecutor asked a series of questions, receiving no response, interspersed with the district
court’s instructing John to answer the questions: “You gave [Scott] money on March 10,
2020; is that correct?” “Is there a reason why you don’t want to testify today?” “You were
working for the task force in 2020; is that correct?” “You received a baggie of
methamphetamine from [Scott] on March 10, 2020?” The district court then found John in
contempt of court for refusing to answer the questions, qualifying the finding by adding,
“The Court will indicate that the witness wil l be provided a half hour to purge himself of
this if he agrees to testify further with regard to this matter.”
The prosecutor called and questioned the state’s forensic expert before re-calling
John as a witness. The district court told John that answering questions would purge his
contempt. The prosecutor asked John, “[Scott] gave you a baggie of white substance; is
that correct?” John did not respond. The district court directed him to answer, to no avail.
Then the prosecutor asked, “You took that baggie directly from [Scott] and gave it to task
force agents?” Again, the court instructed John to answer, and again, he did not. The court
restated its contempt finding.
6
Agent Helgeson testified last, describing the same events summarized above.
During his testimony, the state offered as evidence portions of the audio recording from
the transmitting device John wore during the controlled buy. Ozornia objected, asserting a
lack of foundation and hearsay. The district court overruled the objection and admitted the
recording into evidence. Although much of the recorded conversation is inaudible, John
can be heard talking to Ozornia about the price of Ozornia’s “shit” as compared to
another’s. And John tells police that Ozornia told him to go to another house. The recording
also reveals John telling Scott to go receive something from Ozornia and stating that he
has the money “right here.” Later, John is heard telling police where to pick him up.
The jury found Ozornia guilty. The district court convicted him of first-degree
controlled substance sale and sentenced him to serve 125 months in prison. Ozornia
appeals.
DECISION
Ozornia assumes on appeal that Scott served as Ozornia’s accomplice in the
controlled buy, meaning that Scott’s testimony cannot support Ozornia’s conviction unless
the testimony is corroborated. See Minn. Stat. § 634.04 (2022) (mandating that a conviction
cannot rest on the testimony of an accomplice’s uncorroborated testimony). The state does
not dispute the characterization in its brief. The district court likewise assumed that he was
an accomplice and so instructed the jury. Neither party includes argument or cites authority
supporting the assumption, and we think it is inaccurate. The supreme court has stated
unqualifiedly that “one who receives [a controlled substance] cannot be an accomplice of
a person charged with distributing [it].” State v. Swyningan, 229 N.W.2d 29, 32 (Minn.
7
1975). We will address the issues raised on appeal with the understanding that Scott was
not an accomplice whose testimony required corroboration.
Ozornia makes five arguments. He argues first that the prosecutor improperly called
John to testify knowing John would refuse to answer questions. He argues second that the
district court violated his Confrontation Clause rights by admitting the audio recording of
John’s voice during the controlled buy. Ozornia’s supplemental brief raises three additional
alleged legal errors. None of Ozornia’s arguments leads us to reverse.
I
Ozornia maintains that the prosecutor’s calling John to testify knowing he would
refuse to answer questions constitutes reversible error based on the supreme court’s
decisions in State v. Morales, 788 N.W.2d 737 (Minn. 2010), and State v. Mitchell, 130
N.W.2d 128 (Minn. 1964). The Morales court identified two theories of error requiring
reversal when the district court allows the state to call a witness who refuses to testify:
Under the first theory of error—the bad -faith theory—
reversible error results, regardless of actual prejudice, where
the prosecution calls a witness for the purpose of prejudicing
the defendant in the minds of the jury, knowing that the witness
will claim immunity. . . . Under the second theory of error—
the unfair-prejudice theory—reversible error results if the State
calls a witness in good faith and the State’s examination is of a
type that has prejudiced defendant to the extent that he has been
denied a fair trial.

788 N.W.2d at 753 (quotations and citation omitted). Neither Morales nor Mitchell
discusses the appropriate standard of review in cases like this one where the alleged error
was not objected to at trial. One plausible approach on appeal would be to apply the plain-
error standard governing forfeited challenges to the erroneous admission of evidence. See
8
State v. Vasquez, 912 N.W.2d 642, 650 (Minn. 2018). Another would be to analyze the
alleged error applying the modified plain-error standard, as in cases of unobjected-to
prosecutorial misconduct, which subjects a prosecutor’s conduct to a “more scrutinizing
review” by this court. See State v. Ramey, 721 N.W.2d 294, 302 (Minn. 2006). The United
States Supreme Court implied those two possibilities:
First, some courts have indicated that error may be based upon
a concept of prosecutorial misconduct, when the Government
makes a conscious and flagrant attempt to build its case out of
inferences arising from use of the testimonial privilege. . . . A
second theory seems to rest upon the conclusion that, in the
circumstances of a given case, inferences from a witness’[s]
refusal to answer added critical weight to the prosecution’s
case in a form not subject to cross-examination, and thus
unfairly prejudiced the defendant.

Namet v. United States, 373 U.S. 179, 186–87 (1963). The Morales court at times attributed
the reversible error to the district court but at other times to the prosecutor. 788 N.W.2d at
753, 755. The parties’ briefs do not expound upon which is the proper standard of review.
For that reason and because the outcome of this appeal does not depend on identifying the
proper standard, we will apply the modified plain-error standard; Ozornia cannot prevail
under that standard, even though it is the one more burdensome to the state, because the
alleged error did not affect his substantial rights.
Under the modified plain-error standard, if an appellant meets his burden to
establish plain error, 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. That likelihood is absent here. The state’s questioning
of John was brief, and, although some questions were factual in nature, the answers to them
9
were directly given by other witnesses whose testimony Ozornia does not challenge. It is
true that the questions, which the prosecutor should have known would go unanswered,
revealed the story that the prosecutor wanted John to tell. But that story —that John
provided Scott money , was working for the drug task force, and received a bag of
methamphetamine from Scott—was told through the state’s other witnesses. Scott testified
that he received money from John, gave Ozornia the money in exchange for the bag of
methamphetamine, and gave the bag of methamphetamine to John. Agent Helgeson
testified that John was working as an informant for the task force and that John gave him
the bag of methamphetamine he received from Scott after Scott’s transfer from Ozornia.
He also testified that he saw John meet with Scott, walk with him toward the house where
Ozornia had gone, enter the backyard, and leave the yard. The substance of the allegedly
improper questions was properly presented to the jury through legitimate testimony,
meaning that the questions had no effect on Ozornia’s substantial rights.
We are not persuaded otherwise by Ozornia’s contention that the questions resulted
in unfair prejudice because they were “designed to establish chain of custody for the drugs
to make sure the drugs were admissible.” The chain-of-custody rule does not require the
elimination of “[a]ll possibility of alteration, substitution, or change of condition.” State v.
Farah, 855 N.W.2d 317, 321–22 (Minn. App. 2014) (quoting State v. Hager, 325 N.W.2d
43, 44 (Minn. 1982)), rev. denied (Minn. Dec. 30, 2014). And under Minnesota Rule of
Evidence 901(a), all that is required to authenticate or identify something is “evidence
sufficient to support a finding that the matter in question is what its proponent claims.”
Scott testified that he received a plastic bag containing a white substance and gave that bag
10
to John. Agent Helgeson testified that John gave him a plastic bag containing a white
substance. And a Bureau of Criminal Apprehension scientist testified that forensic testing
of the substance in that bag established that it was methamphetamine. John’s testimony
was not necessary to adequately establish the chain of custody linking Ozornia and the
forensically tested substance.
We emphasize that the prosecutor’s direct examination of John was not a model
approach to a recalcitrant witness, but we do not believe the examination crossed the bad-
faith bright line underscored in Morales: “[W]here the prosecution calls a witness for the
purpose of prejudicing the defendant in the minds of the jury, knowing that the witness will
claim immunity, reversible error results, regardless of actual prejudice.” 788 N.W.2d at
753 (quotation omitted). When a prosecutor has a legitimate reason for calling the witness
other than creating an atmosphere prejudicial to the defendant, the prosecutor has not called
the witness in bad faith. See id. at 754. The prosecutor here demonstrated good faith, first
by affording John use immunity for his testimony, second by informing the district court
of the possibility that John might nevertheless refuse to testify, third by indicating that the
district court should determine how it wished to proceed, and fourth by implicitly
suggesting that the court could consider a process “outside the presence of the jury” to
determine whether John would testify. It was the district court that orchestrated the
procedure employed here, directing the prosecutor to question the witness in the jury’s
presence, permitting the prosecutor to “ask any other questions,” and implicitly directing
the prosecutor to re-call the witness for more questioning after he refused to answer
questions to afford the witness the opportunity to avoid the consequences of the contempt-
11
of-court finding. Applying best practices in the jury’s presence, a prosecutor should ask a
resistant witness no more questions than necessary to establish that the witness will not
testify.
II
Ozornia unpersuasively contends that we must reverse because the district court
violated his constitutional right to confront his accusers by admitt ing the recording of
John’s voice captured by the transmitter John wore during the purchase. Before turning to
the merits of this argument, we first address the parties’ dispute over whether Ozornia
preserved this issue for appeal.
Ozornia argues that he preserved his confrontation-based challenge by objecting to
the recording on hearsay and foundation grounds. The argument fails. A defendant
preserves an evidentiary objection based on the specific rationale offered for the objection.
See State v. Rossberg, 851 N.W.2d 609, 618 (Minn. 2014) (reasoning that a defendant’s
“exclusive focus” at trial on the residual hearsay exception indicated that “a Confrontation
Clause challenge was not apparent from the context of the objection”). Because Ozornia’s
objection at trial focused exclusively on hearsay and foundation, the district court did not
decide the objection as a Confrontation Clause challenge. Because Ozornia failed to
preserve a Confrontation Clause challenge, we review his challenge under the plain-error
standard, which requires Ozornia to show a plain error that impacted his substantial rights.
See id. Here again, the challenge fails on the lack of prejudice.
Ozornia fails to show that the alleged error affected his substantial rights. We will
conclude that an alleged error violated a defendant’s substantial rights if there “is a
12
reasonable likelihood that the absence of the error would have had a significant effect on
the jury’s verdict.” State v. Horst, 880 N.W.2d 24, 38 (Minn. 2016) (quotation omitted). In
evaluating the alleged error’s effect on the verdict, we consider the persuasiveness of that
evidence and the way the evidence was presented. State v. Jackson, 764 N.W.2d 612, 620
(Minn. App. 2009), rev. denied (Minn. July 22, 2009). Most of the recording that Ozornia
challenges as erroneously admitted lacked any significant persuasive value, because it
involved only vague, barely audible, unrelated statements. It did not capture the drug deal
itself, as John was not present at the exchange of money and drugs. The recording instead
describes John’s movements before and after the exchange between Ozornia and Scott. We
recognize that John’s telling officers that Ozornia instructed him to go to a second location
to make the exchange has some probative value. But the value is little, as the jury had
already heard Scott testify that Ozornia sold him drugs and Agent Helgeson testified that
he watched Ozornia, John, and Scott travel to the second location. We are satisfied that the
jury would have reached the same verdict without the audio recording.
III
Ozornia raises three additional arguments in his supplemental brief. None is
convincing.
He argues first that the district court violated his right to a speedy trial. We review
alleged speedy-trial violations de novo, State v. Taylor, 869 N.W.2d 1, 19 (Minn. 2015) ,
and we consider the delay’s length, the reason for the delay, whether the defendant asserted
his right to a speedy trial, and any prejudicial effect, State v. Windish, 590 N.W.2d 311,
315 (Minn. 1999). Ozornia fails to present any argument as to the length, reason, or effect
13
of the delay. And although he maintains that he asserted his right to a speedy trial at his
July 2021 bail hearing, during the December 2021 review hearing Ozornia’s attorney
expressly stated that he was not requesting a speedy trial in this case, but rather had
requested a speedy trial in two other cases pending against Ozornia. We need not address
Ozornia’s under-developed speedy-trial argument further.
Ozornia argues second that the district court violated his Sixth Amendment rights
when it excluded the testimony of a witness he did not disclose to the state until the day of
trial. Although the Sixth Amendment does afford defendants the opportunity to present a
complete defense, it is not a shield against a defendant’s failure to comply with discovery
rules. See State v. Lindsey, 284 N.W.2d 368, 372–73 (Minn. 1979). A defendant must
provide notice of defense witnesses and their statements before the omnibus hearing. Minn.
R. Crim. P. 9.02. And the district court has discretion to impose sanctions for failure to
comply with discovery requirements. Minn. R. Crim. P. 9.03, subd. 8. Because Ozornia
did not disclose the substance of the witness’s testimony until the morning of trial, he fails
to establish that the district court abused its discretion by excluding the witness’s
testimony.
Ozornia argues third that the district court violated his right to due process when it
addressed the jury outside his presence, and he claims that this changed the verdict. “[T]he
general rule is that a trial court judge should have no communication with the jury after
deliberations begin unless that communication is in open court and in the defendant’s
presence.” State v. Sessions, 621 N.W.2d 751, 755–56 (Minn. 2001). Before the jury read
its verdict, the district court informed the parties that the jury had indicated to the bailiff
14
that it was deadlocked. The district court recounted that it instructed the jury to reduce
questions to writing. The record suggests that the district court so communicated outside
the defendant’s presence and not in open court. But any error here was harmless. When
deciding whether the district court’s erroneous exclusion of the defendant from judge–jury
communications constitutes harmless error, we consider the strength of the evidence and
the substance of the judge’s response. Id. at 756. The evidence against Ozornia was strong,
consisting of direct testimony from Scott recounting his drug deal with Ozornia and from
Agent Helgeson providing details of the investigation. And the substance of the exchange
with the jury was neutral and inconsequential, as it merely informed the jury of the proper
method to notify the district court of any issues. The response “did not favor the prosecution
or defense,” see id. at 756–57, and it was therefore harmless.
Affirmed.