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This opinion is nonprecedential except as provided by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
A23-1216

State of Minnesota,
Respondent,

vs.

Ruben Perez-Robles,
Appellant.

Filed August 19, 2024
Reversed and remanded
Segal, Chief Judge

Hennepin County District Court
File No. 27-CR-21-5105

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

Mary F. Moriarty, Hennepin County Attorney, Britta Nicholson, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Jennifer Workman Jesness,
Assistant Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Smith, Tracy M., Presiding Judge; Segal, Chief Judge;
and Cleary, Judge.
∗

∗ Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
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NONPRECEDENTIAL OPINION
SEGAL, Chief Judge
In this appeal from a final judgment of conviction for first- and third-degree criminal
sexual conduct, appellant contends that his convictions must be reversed and the case
remanded for a new trial because the prosecutor committed misconduct by stating in his
rebuttal closing argument that “[t]he presumption of innocence is gone.” Appellant also
maintains that the district court erred by admitting expert testimony from the forensic
interviewer of the victim and that the district court erred in sentencing appellant to lifetime
conditional release after completing his sentence. We conclude that the prosecutor’s
misstatement of the burden of proof in his rebuttal closing argument constitutes plain error
that requires reversal under the supreme court’s recent decision in State v. Portillo, 998
N.W.2d 242 (Minn. 2023). Because the issue is likely to recur on remand, we consider
appellant’s challenge to the admission of expert testimony on delayed reporting and
counterintuitive behaviors of sexual- assault victims, but need not address appellant’s
sentencing challenge.
FACTS
As summarized from testimony at trial, appellant Ruben Perez-Robles sexually
abused Z.F.R., one of his first cousins, beginning when Z.F.R. was between the ages of six
to eight years old. The abuse continued over approximately the next 20 years. Perez-
Robles is eight years older than Z.F.R.

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Perez-Robles’s and Z.F.R.’s families spent time together when Z.F.R. was growing
up. Perez- Robles’s family also lived with Z.F.R.’s family for several months when she
was young. Z.F.R. testified at trial that it was during this time that Perez-Robles first
assaulted her. She testified that, when the two of them were taking out the garbage, Perez-
Robles cornered her by the trash can and put his hands down her pants. She also testified
about a number of additional assaults by Pere z-Robles, including when he first raped her
when she was 12.
Z.F.R. did not tell anyone about the sexual abuse for a number of years. She
eventually disclosed the abuse to her boyfriend when she was in her early 20s, and to her
mom after going to therapy. Z.F.R. reported the abuse to law enforcement in 2020. T he
investigating officer allowed Z.F.R. to choose whether she wanted to be interviewed by a
police officer or a forensic interviewer at CornerHouse. Z.F.R. opted to be interviewed at
CornerHouse. During the interview, Z.F.R. shared a letter documenting her abuse, which
she had written in 2018 to process her trauma.
Respondent State of Minnesota subsequently charged Perez -Robles with first-
degree criminal sexual conduct in violation of Minn. Stat. § 609.342, subd. 1(h)(iii) (Supp.
1995) (victim under age 16, significant relationship, multiple acts over an extended period
of time), and third-degree criminal sexual conduct in violation of Minn. Stat. § 609.344,
subd. 1(c) (2008) (sexual penetration using force or coercion).
Before trial, the state provided notice that it intended to present, as an expert witness,
the forensic interviewer from CornerHouse who had conducted Z.F.R.’s interview. The
state also moved to admit the entirety of the CornerHouse video documenting the
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interview, which was over two hours long, the body-worn camera video of Z.F.R.’s
statement to law enforcement, and Z.F.R.’s 2018 letter. Perez-Robles filed a motion
in limine to exclude this evidence. The district court determined that the forensic
interviewer could offer expert testimony on delayed reporting and other counterintuitive
behaviors of sexual-assault victims and could testify about statements made by Z.F.R.
during the interview as prior consistent statements. But the district court excluded the
video of Z.F.R.’s CornerHouse interview as cumulative and allowed only a nine- minute
edited version of body-worn camera video of her statement to police and a heavily redacted
version of her 2018 letter. The district court also advised the state to limit the forensic
interviewer’s testimony concerning statements made by Z.F.R. to the “highlights.”
This case was tried to a jury in March 2023. Z.F.R. explained during her testimony
that she delayed reporting the sexual abuse because she thought her family must have
known about it and would not do anything if she disclosed it to them; she did not want to
exacerbate any of her family members’ health issues; she was in denial and did not want
to admit the abuse happened; and she thought the abuse was her fault. The forensic
interviewer testified about several of the incidents of sexual assault reported by Z.F.R.
during the interview and provided an explanation of delayed reporting in sexual-abuse
cases and the types of conduct associated with “grooming.”
The jury found Perez- Robles guilty of both first- and third-degree criminal sexual
conduct. The district court entered adjudications for the two convictions and sentenced
him to 86 months in prison for the first-degree conviction and 48 months in prison for the
third-degree conviction, to be served concurrently. The district court further ordered that,
5
after completion of his sentence, Perez-Robles would be placed on a term of conditional
release for the first-degree conviction and lifetime conditional release for the third-degree
conviction.
DECISION
I. The prosecutor’s statement that the “presumption of innocence is gone”
constitutes reversible plain error under State v. Portillo.

We first address Perez-Robles’s argument that the prosecutor engaged in
prosecutorial misconduct. Specifically, Perez-Robles challenges the following statements
made by the prosecutor at the beginning of the state’s rebuttal closing argument:
The presumption of innocence is gone. The presumption of
innocence is gone because [Z.F.R.]’s credible testimony
proves this case beyond a reasonable doubt. More is not
needed.

Perez-Robles did not object to the prosecutor’s statements at trial, but he maintains that the
prosecutor’s statements and the relevant circumstances here are virtually identical to those
found to be reversible plain error in Portillo. We agree.
Appellate courts apply the four-step modified plain-error standard of review
articulated in State v. Ramey to claims of unobjected-to prosecutorial misconduct. 721
N.W.2d 294, 302 (Minn. 2006). Under that standard, the defendant bears the burden of
demonstrating that the misconduct constitutes “(1) error, (2) that is plain.” Id. An error is
“plain” when it “contravenes case law, a rule, or a standard of conduct.” Id. If the
defendant satisfies that burden, “the burden then shifts to the State[, under the third step,]
to demonstrate that the error did not affect the defendant’s substantial rights.” Portillo,
998 N.W.2d at 248 ( quotation omitted). In assessing “whether there is a reasonable
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likelihood that the prosecutor’s error had a significant effect on the verdict, we consider
the strength of the evidence against the defendant, the pervasiveness of the improper
suggestions, and whether the defendant had an opportunity to (or made efforts to) rebut the
improper suggestions.” Id. at 251-52 (quotation omitted). “If these three prongs are
satisfied, [under the fourth and final step,] the court then assesses whether the error should
be addressed to ensure fairness and the integrity of the judicial proceedings.” Id. at 248
(quotation omitted).
Portillo, although decided after the trial in this case, controls our analysis. In that
case, Portillo was charged and convicted of criminal sexual conduct involving sexual abuse
of a child that occurred over a number of years. Id. at 245-46. The prosecutor began the
state’s rebuttal closing argument by stating:
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 the evidence. You’ve heard all of the state’s case
against Mr. 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.

Id. at 246-47. Portillo did not object to the state’s argument but challenged it on appeal as
prosecutorial misconduct under the modified plain-error standard. The supreme court
agreed and reversed and remanded the case for a new trial. Id. at 256.
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In our analysis, we summarize the supreme court’s reasoning in Portillo on each of
the four steps of the modified plain-error standard and then apply that guidance to this case.
Plain Error
The supreme court reasoned in Portillo that the prosecutor’s statement that the
defendant “no longer has th[e] presumption of innocence,” is contrary to the constitutional
protections afforded criminal defendants “because the prosecutor’s statement erroneously
suggested that Portillo, at the time the prosecutor made this statement, had been proven
guilty beyond a reasonable doubt and was therefore no longer entitled to the presumption
of innocence.” Id. at 249-50. The court noted that “[a] defendant is only proven guilty
beyond a reasonable doubt . . . when the jury has deliberated and reached that conclusion,
not before.” Id. at 250. The court thus determined that the argument constituted an error.
The supreme court further determined that the error was plain because precedent has made
clear that “[t]he presumption of innocence is a . . . bedrock axiomatic and elementary
principle whose enforcement lies at the foundation of the administration of our criminal
law.” Id. at 251 (quotations omitted). The court therefore determined Portillo satisfied his
burden on the first two steps, that the argument constituted an error and that the error was
plain.
The prosecutor’s statements challenged on appeal here are virtually
indistinguishable from the statements the supreme court deemed to be plain error in
Portillo. At Perez-Robles’s trial, the prosecutor made the very same error in the rebuttal
closing argument by telling the jury that “[t]he presumption of innocence is gone.” This
was plain error because, as in Portillo, the prosecutor’s statement erroneously suggested
8
that, “at the time the prosecutor made this statement,” Perez-Robles was no longer entitled
to the constitutional protections afforded criminal defendants. Id. at 250.
The state argues that this case is more like the statements found not to be plain error
in State v. Young, 710 N.W.2d 272 (Minn. 2006), and State v. Vue, 797 N.W.2d 5 (Minn.
2011). But the supreme court expressly distinguished both cases in Portillo, and those
distinctions are equally applicable here. 998 N.W.2d at 249-51. With regard to Young, the
supreme court in Portillo noted that “the prosecutor never explicitly mentioned the
presumption of innocence in the portion of the State’s closing argument at issue; even in
the context of the argument as a whole, the prosecutor only stated that the evidence was
sufficient to find the defendant guilty, so ‘[h]e’s no long[er] an innocent man.’” Id. at 249-
50 (quoting Young, 710 N.W.2d at 280); see also State v. Johnson, No. A23-1196, 2024
WL 3407693, at *3 (Minn. App. July 15, 2024) (distinguishing Portillo because the
prosecutor in Johnson merely argued that “the presumption [of innocence] only remains”
if the state proves the essential elements beyond a reasonable doubt).
The prosecutor in Vue made the statement in closing argument that the defendant
“has now lost that presumption of innocence as a result of the evidence that you have
heard.” 797 N.W.2d at 13-14. The supreme court distinguished this statement from
Portillo explaining that the prosecutor’s statement in Vue was to the effect that the state
“had produced sufficient evidence to overcome the presumption rather than a contention
that the defendant was not entitled to the presumption.” 998 N.W.2d at 251 (quotation
omitted). While the difference in wording between the challenged argument in Vue and
Portillo may appear to be slight, the supreme court determined that it was significant.
9
Because the prosecutor’s statement in this case is virtually identical to the prosecutor’s
statement in Portillo, w e are constrained to similarly conclude that the prosecutor’s
statement that “[t]he presumption of innocence is gone” constitutes an error that is plain.
Likelihood that the Misconduct had a Significant Effect on the Verdict

With regard to the third step of the Ramey standard, the supreme court held in
Portillo that the state had failed to satisfy its burden of establishing that there is “no
reasonable likelihood that the absence of the misconduct in question would have had a
significant effect on the verdict of the jury.” Id. at 254 (quotations omitted). As to the
pervasiveness of the error, the supreme court acknowledged that the prosecutor’s
misstatements occurred three times in just “half a page of the six-page rebuttal and the 20-
page total closing argument,” but it noted that the state made the misstatements during its
rebuttal closing argument such that the defense had no opportunity to respond. Id. at 253.
And the supreme court rejected the state’s argument that the misstatement was cured by
the district court’s subsequent jury instruction that the presumption of innocence “remains
with the defendant unless and until the defendant has been proven guilty beyond a
reasonable doubt.” Id. at 247.
The circumstances identified by the supreme court as relevant in Portillo are, again,
markedly similar to those present here. While the most recent incidents of sexual abuse in
this case were closer in time to the trial than those in Portillo, this case also involved
assaults that occurred many years earlier. See id. at 252. And as is typical in these kinds
of criminal-sexual-conduct cases, the evidence here relied almost exclusively on the
testimony of Z.F.R., the victim. While there was corroborating testimony concerning
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factual elements related to the incidents, there were no corroborating firsthand witnesses
to the actual assaults and no physical evidence.
The only notable point of difference between Portillo and this case is that Z.F.R.
testified clearly and consistently about the incidents of abuse that she recalled and was able
to provide details about where the abuse occurred, her age at the time, what she was
wearing, the events leading up to the sexual assault, and how Perez- Robles touched her.
In Portillo, the supreme court concluded that the state’s case was “relatively weak” because
there were inconsistencies in the testimony provided by the victim. Id.
But we are not persuaded that this alone is sufficient to demonstrate that the state
carried its burden on the third prong. This is particularly true when the erroneous
statements were contained in the state’s rebuttal closing argument as they were in Portillo,
which deprived the defense of the opportunity to rebut the error. In addition, as occurred
in Portillo, while the state correctly outlined the presumption of innocence in its initial
closing argument and the district court also provided a correct instruction, neither of these
was “specific enough to undo the harm” identified by the supreme court in Portillo. Id. at
253. The prosecutor’s misstatement here likely affected the jury’s verdict because it
implied that Perez-Robles “had already lost the presumption of innocence before
deliberations.” Id. at 254. We are thus compelled by the holding in Portillo to conclude
that the state has not satisfied its burden of demonstrating that there is no reasonable
likelihood that the absence of the misconduct in question would have had a significant
effect on the verdict of the jury.

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Preservation of Fairness and Integrity of Court Proceedings
As to the fourth and final prong, the supreme court held in Portillo that the
preservation of fairness and integrity of judicial proceedings required reversal. Id. at 256.
The court explained that “[t]he uncorrected, erroneous statement that Portillo was not
entitled to the presumption of innocence as the jury deliberated deprived Portillo of the
ability to present his defense and have the charges against him considered under the proper,
correct instruc tions.” Id. The court expressed concern that, if “[ l]eft unchecked, such
errors would . . . have a substantial and deleterious effect on future trials and undercut the
historic standard of proof imposed on the State in criminal trials.” Id. (quotation omitted).
Guided by Portillo, we similarly conclude that the prosecutorial error here must be
addressed to ensure the fairness and integrity of judicial proceedings, even though the
reversal will “undoubtedly cause distress” to Z.F.R. Id. at 255-56. In reaching this
conclusion, we are mindful that Portillo had not yet been decided when this case was tried,
the erroneous statement was isolated , and the prosecutor correctly outlined the burden of
proof and the presumption of innocence in the state’s initial closing argument. But because
the relevant facts here are not distinguishable in any meaningful way from Portillo, we
must reach the same conclusion.
II. The district court did not abuse its discretion in allowing expert testimony
regarding delayed reporting and counterintuitive behaviors of sexual-assault
victims.

Because it is likely to recur on remand, we address Perez-Robles’s challenge to the
admission of expert testimony by the forensic interviewer. Perez-Robles argues that the
testimony was not needed to “assist the trier of fact to understand the evidence or to
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determine a fact in issue” as required under Minn. R. Evid. 702. Perez-Robles also argues
that the interviewer’s testimony should not have been admitted as a prior consistent
statement under Minn. R. Evid. 801(d)(1)(B). Finally, he argues that, under Minn. R.
Evid. 403, the testimony by the forensic interviewer was needlessly duplicative and that
her testimony about grooming behaviors and manipulation should have been excluded
because any probative value of the testimony was substantially outweighed by the danger
of unfair prejudice.
“Evidentiary rulings rest within the sound discretion of the district court, and we
will not reverse an evidentiary ruling absent a clear abuse of discretion.” State v. Ali, 855
N.W.2d 235, 249 (Minn. 2014). “A district court abuses its discretion when its decision is
based on an erroneous view of the law or is against logic and the facts in the record.” State
v. Garland, 942 N.W.2d 732, 742 (Minn. 2020) (quotation omitted). On appeal, the
appellant has the burden of showing (1) the district court abused its discretion by admitting
the challenged testimony, and (2) that the error led to prejudice. State v. Thao, 875 N.W.2d
834, 840-41 (Minn. 2016) (reviewing admission of expert testimony); State v. Zulu, 706
N.W.2d 919, 924 (Minn. App. 2005) (reviewing the admission of evidence as a prior
consistent statement under rule 801). We address each of Perez-Robles’s arguments below,
beginning with his challenge to the admissibility of the testimony under rule 702.

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Expert Testimony on Delayed Reporting and Counterintuitive Behaviors of Sexual-
Assault Victims

Perez-Robles argues that expert testimony by the forensic interviewer on delayed
reporting and counterintuitive behaviors of sexual-assault victims should not have been
admitted because Z.F.R. was an adult at the time of trial and had worked at an advocacy
organization for victims of domestic violence and was thus “familiar with the effects of
trauma and more than capable of explaining her emotions and why she delayed her report.”
In addition, Perez-Robles notes that Z.F.R. “did not suffer from a disability or another
condition that made her testimony hard to follow or understand.” Perez -Robles thus
contends that the forensic interviewer’s testimony was not admissible under rule 702.
Expert testimony is admissible under rule 702 if: “(1) the witness is qualified as an
expert; (2) the expert’s opinion has foundational reliability; (3) the expert testimony is
helpful to the jury; and (4) if the testimony involves a novel scientific theory, it must satisfy
the Frye-Mack standard.” State v. Obeta, 796 N.W.2d 282, 289 (Minn. 2011). Expert
testimony is helpful when it is “outside the common understanding of an average juror ”
and unhelpful if it will not aid the jury in reaching a conclusion. Id. at 289, 293. “Even if
acceptable under Rule 702, expert testimony should be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice.” State v. DeShay, 669 N.W.2d
878, 888 (Minn. 2003) (citing Minn. R. Evid. 403).
This case involves sexual abuse of Z.F.R. throughout her childhood and continuing
through her early 20s. Even though Z.F.R. was an adult during the last few years of the
abuse and may have had insight into the effects of trauma through her work as a community
14
advocate for victims of domestic violence, that does not negate the fact that delayed
reporting and counterintuitive behaviors of sexual-assault victims remain outside the
common understanding of a jury. In support of his argument, Perez-Robles cites to earlier
opinions, but he does not cite to the more recent opinion of the supreme court in Obeta, a
case involving an adult rape victim.
In Obeta, which involved an interlocutory appeal by the state challenging the
exclusion of expert testimony concerning typical behaviors of rape victims, the supreme
court stated:
[W]e have recognized that the experiences and reactions of
victims of certain crimes are outside the common knowledge
of the jury. In these cases, expert testimony on typical victim
behavior may be helpful to assist the jury in evaluating the facts
in the case. The rationale we applied in allowing expert
testimony on the typical behaviors of battered women, battered
children, and child- and adolescent-victims of criminal sexual
conduct applies with equal force to expert-opinion testimony
on typical rape-victim behaviors that are outside the common
understanding of most jurors.

Obeta, 796 N.W.2d at 291. The supreme court reversed the district court’s exclusion of
the expert testimony, explaining: “We reach this conclusion because the mental and
physical reactions of an adult sexual-assault victim may be outside the common
understanding of an average juror.” Id. at 294.
The reasoning of Obeta applies with even greater force in this case —a case that
involves allegations of 20 years of repeated sexual abuse by Z.F.R.’s relative that began
when Z.F.R. was a young child. We discern no abuse of discretion by the district court in
15
its determination that this evidence is outside the common understanding of jurors and
would be helpful. We thus reject Perez-Robles’s challenge to the testimony on this ground.
Prior Consistent Statement
Perez-Robles next argues that the testimony should not have been admitted as a
prior consistent statement under Minn. R. Evid. 801(d)(1)(B) because Z.F.R. never testified
about delayed reporting or other counterintuitive behaviors of sexual-assault victim s.
Perez-Robles’s argument, however, conflates the interviewer’s expert testimony with her
testimony as a fact witness, relaying consistent statements made by Z.F.R. during the
forensic interview. The expert portion of her testimony was admitted under rule 702, not
as a prior consistent statement, and we discern no abuse of discretion by the district court
in doing so.
Needless Duplication
Perez-Robles further claims that the interviewer’s testimony provided needless
duplication under Minn. R. Evid. 403.
1 The district court, however, took measures to limit
duplication. For example, the district court did not allow the two-hour video of the forensic
interview to be submitted into evidence and restricted the interviewer’s testimony
concerning the substance of the forensic interview to just the “highlights,” along with other
measures designed to avoid the needless presentation of cumulative evidence. The district

1 Rule 403 provides that “[a]lthough relevant,” evidence may nevertheless be excluded if,
among other reasons, “its probative value is substantially outweighed by the danger of
unfair prejudice . . . or needless presentation of cumulative evidence.” Minn. R. Evid. 403.
16
court balanced the interests of the parties, and we discern no abuse of discretion based on
this trial record.
Prejudice Resulting from Testimony Related to Grooming Behaviors
Perez-Robles also argues that the admission of the interviewer’s testimony about
grooming and manipulation was an abuse of discretion because any probative value was
substantially outweighed by the danger of unfair prejudice. At trial, the forensic
interviewer was asked to explain grooming behaviors. She testified that it can include
behaviors to “normalize” the alleged behavior that the person is perpetrating. She also
testified that it can involve “threatening tactics to keep people quiet” and include “things
like gifts to placate the individual.” In her testimony, the interviewer also characterized
certain alleged behaviors of Perez-Robles as examples of grooming behavior. Perez -
Robles argues that this testimony was unduly prejudicial under rule 403.
Defense counsel objected on the ground of relevance to questioning on the topic of
grooming behaviors, which objection was overruled by the district court. Counsel did not
assert any objection under rule 403 for prejudice. Accordingly, review of this issue would
be subject to a plain-error analysis. State v. Myhre, 875 N.W.2d 799, 804 (Minn. 2016).
Because this case is being remanded for a new trial, we need not analyze this issue further
in this appeal.
III. Because we reverse Perez-Robles’s convictions and remand for a new trial, we
decline to address Perez-Robles’s argument that the district court erred by
sentencing him to lifetime conditional release after he has served his sentence.

Perez-Robles argues, in the alternative, that the district court erred in sentencing
him to lifetime conditional release on the second of his convictions because the two counts
17
were adjudicated simultaneously, not consecutively. Because we reverse Perez -Robles’s
convictions and remand for a new trial, we need not address this issue.
Reversed and remanded.