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This opinion is nonprecedential except as provided by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
A23-1774

State of Minnesota,
Respondent,

vs.

Fortino Zarate,
Appellant.

Filed September 23, 2024
Affirmed
Bjorkman, Judge

Mower County District Court
File No. 50-CR-22-1814

Keith Ellison, Attorney General, Peter Magnuson, Assistant Attorney General, St. Paul,
Minnesota; and

Kristen Nelsen, Mower County Attorney, Austin, Minnesota (for respondent)

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

Considered and decided by Bjorkman, Presiding Judge; Worke, Judge; and Larson,
Judge.
NONPRECEDENTIAL OPINION
BJORKMAN, Judge
Appellant challenges his convictions of third- and fifth-degree assault, arguing that
the district court abused its discretion by instructing the jury that it would not have access
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to audio recordings while deliberating and, even if he did not preserve the issue with an
objection, the instruction was plainly erroneous. We affirm.
FACTS
The evening of August 13, 2022, J.R. (husband) and K.R (wife) were out drinking
with some friends, including C.T. (friend). At the bar, they saw appellant Fortino Zarate,
whom friend did not know but husband and wife knew as “Tino, ” and Zarate’s brother,
Albert Zarate, whom they all knew.1 They did not interact with Zarate or Albert at the bar.
Around closing time, husband, wife, and friend left the bar. Husband walked toward
their vehicle as wife and friend said goodbye. Wife saw Albert approach husband from
behind and yelled out; husband turned, and Albert punched him in the face. The two men
fell to the ground, fighting. Friend moved toward husband to help, but another man tripped
him, causing him to fall. When friend looked up, the man punched him in the eye. Friend
began fighting back, but the man went over to where Albert and husband were fighting and
kicked and punched husband in the head and body. At one point, husband saw the second
man, recognizing him as Zarate. Wife started to call 911 but dropped her phone. She then
jumped on Zarate to get him off husband, and Zarate turned and ran away . Meanwhile,
Zarate and Albert’s brother Z. arrived at the scene and separated husband and Albert.
Police responded shortly thereafter and followed husband and wife to the hospital.
Police spoke with husband and wife briefly at the hospital and then again several
hours later at their home. Husband and wife told police that Albert and his brother

1 Because the brothers share a surname, we refer to Albert by his first name.
3
“Zortino” had attacked husband. They did not provide a physical description of the second
assailant, but wife said that it was not Z. or the fourth brother, J.
Police initially arrested Albert and Z. On August 17, husband and wife called police
and said they heard that Z. was arrested but that they believed it was a mistake; they said
it was Zarate, not Z., who attacked husband with Albert. Z. was released.
On August 19, police conducted a photo lineup with wife and friend. 2 Wife
identified Zarate as the second assailant, stating that her identification was “certain.”
Friend also identified Zarate as the second assailant and said the man who hit him was
called “Fortino.” But friend acknowledged that he was not certain and had looked at social
media to help him figure out who hit him. And there were discrepancies between his
recollection of Zarate’s appearance and the photo.
Zarate was charged with third-degree assault of friend and third- degree assault of
husband.3 During the three-day trial, husband, wife, and friend identified Zarate as the
man who had attacked friend and then joined Albert in attacking husband. The jury also
heard an audio recording of the photo-lineup procedure in which friend identified Zarate.
At the close of trial, the district court discussed jury instructions with counsel.
During that discussion, the district court agreed to add a count for and instruct the jury on
fifth-degree assault of husband, as a lesser-included offense. The court also raised the issue
of “what exhibits the Jury will have” during deliberations, stating that the jury would have

2 The district court excluded the photo lineup itself but permitted testimony about the lineup
procedure and admitted the audio recording of the procedure.

3 Albert was also charged with third-degree assault of husband.
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documents and photographs but not “the audios that were submitted because, of course,
[the jurors] have no way to play them, anyway.” Neither party objected.
During closing argument, defense counsel referenced the audio recording of friend’s
photo-lineup identification, arguing that friend’s uncertainty undermined friend’s
courtroom identification of Zarate . Counsel told the jury: “ You listened to the audio
recording. . . . You can listen to that again during your deliberations.” The district court
interrupted and called for a bench conference:
DISTRICT COURT: You just told them they could listen to
the audio during deliberations. They—they can’t. They won’t
have it.

DEFENSE COUNSEL: They—they can—they can request
to—to listen to it.

DISTRICT COURT: I don’t want to encourage that.

DEFENSE COUNSEL: Okay.

DISTRICT COURT: Because if they ask for that, what I am
going to tell them, most likely, is you need to rely on your
memory. They don’t automatically get to hear it if they request
it. In fact, every time it has ever been requested, and every trial
I did as an attorney, it was denied.

DEFENSE COUNSEL: Okay.

DISTRICT COURT: I mean—but, anyway, I —

DEFENSE COUNSEL: I am sorry, Judge.

DISTRICT COURT: Yeah.

DEFENSE COUNSEL : That’s not been my experience, so I
didn’t mean any—

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DISTRICT COURT: No. Well, but you made it sound like
they would have it back there with them, and they can listen to
it if they wanted to. So I just want to make sure they
understand they are not going to have it back there.

DEFENSE COUNSEL: Do you want me to correct myself, or
do you want to say anything, or—

DISTRICT COURT: However you want to do it.

DEFENSE COUNSEL: Okay.

DISTRICT COURT: I—I will do it, if you want me to.

DEFENSE COUNSEL: No, I will just— I will handle it.

DISTRICT COURT: Okay.

When counsel resumed his argument, he asked the jury to “disregard [his] comment about
listening to the recording again.”
After closing arguments, the district court gave the jury several clarifying
instructions, including:
As far as any exhibits that you will have back there, that came
up a little bit in closing when I interrupted at the one point, you
will have all of the hard copies of exhibits, the photographs,
any documents, back there with you. The audio recordings you
won’t have. Well, and the truth is you would have no way to
play them in the Jury room, anyway. So you won’t have those
in the room with you.

The jury found Zarate guilty of third-degree assault of friend and fifth-degree assault
of husband but acquitted him of third-degree assault of husband. The district court
sentenced him to 24 months’ imprisonment for the third-degree offense.
Zarate appeals.

6
DECISION
A district court has “broad discretion to formulate appropriate jury instructions” but
must not confuse or mislead the jury or materially misstate the law. State v. Taylor, 869
N.W.2d 1, 14-15 (Minn. 2015). “Normally, an appellate court reviews a district court’s
jury instructions for an abuse of discretion.” State v. Lagred, 923 N.W.2d 345, 348 (Minn.
App. 2019). But “an unobjected-to jury instruction is subject to plain-error analysis.” State
v. Watkins, 840 N.W.2d 21, 27 (Minn. 2013).
Zarate assigns error to the district court’s instruction to the jury regarding the audio
recordings, arguing that (1) he preserved an objection to the instruction; and (2) even if he
did not, it was plainly erroneous under Minn. R. Crim. P. 26.03, subd. 20 (2022). 4 We
address each argument in turn.
Objection
Zarate contends that he objected to the district court’s instruction during the bench
conference that took place during defense counsel’s closing argument. We discern no such
objection at that or any other point during the trial. Before closing arguments, the district
court told counsel that the jury would not have any audio recordings in the jury room;
defense counsel did not object. When the district court interrupted his closing argument as
he was telling the jury that it would have access to audio recordings during deliberations,

4 In 2023, the supreme court amended Minn. R. Crim. P. 26.03, subd. 20, to require district
courts to permit juries to access audio exhibits in the deliberation room, with exceptions
including when it is “not feasible” to do so. Order Promulgating Amendments to the
Minnesota Rules of Criminal Procedure, No. ADM10- 8049 (Minn. Feb. 24, 2023).
Because Zarate’s trial took place before the amendment was effective, it is undisputed that
the new version of the rule does not apply here.
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defense counsel did not object. Rather, he expressly acquiesced in the court’s ruling that
his statement was inaccurate and told the jury to disregard it. When the court thereafter
gave the clarifying instruction that Zarate now assigns as error, defense counsel again did
not object. And when the district court asked whether either party had “any errors,
omissions, or corrections in the instructions that counsel would like to call to the Court’ s
attention” before it dismissed the jury to deliberate, defense counsel said no. On this
record, Zarate failed to preserve any challenge to the district court’s instruction and must
show prejudicial plain error to be entitled to relief.
Plain Error
Under the plain-error standard, an appellant must demonstrate (1) there was error,
(2) the error was plain, and (3) the error affected the appellant’s substantial rights; even
then, we may reverse only if the error undermines the “fairness, integrity, or public
reputation of judicial proceedings.” Taylor, 869 N.W.2d at 15 (quotation omitted). An
error is plain if it “contravenes a rule, case law, or a standard of conduct, or when it
disregards well-established and longstanding legal principles.” State v. Scruggs, 822
N.W.2d 631, 642 (Minn. 2012) (quotation omitted).
Zarate’s plain-error challenge rests on Minn. R. Crim. P. 26.03, subd. 20. Under
that rule, a district court “must permit received exhibits or copies, except depositions and
audio or video material, into the jury room. ” Minn. R. Crim. P. 26.03, subd. 20(1). The
court “may allow the jury to review specific evidence,” but “[a]ny jury review of . . . audio
or video must occur in open court.” Id., subd. 20(2)(b).
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Zarate contends the district court contravened this rule by telling the jury that it
would not have audio recordings because this instruction “shut down” any possible request
from the jury to hear the recordings again. But the district court’s instruction accurately
stated the substance of Minn. R. Crim. P. 26.03, subd. 20(1)—th at the jury would not have
access to the audio recording in the jury room. And while Minn. R. Crim. P. 26.03,
subd. 20(2)(b), affords a district court discretion to allow a deliberating jury to review
audio evidence in the courtroom, nothing in that rule requires the court to advise the jury
of that option. Nor does Zarate identify any caselaw requiring such an instruction. Instead,
he contends the challenged instruction misled the jury to believe it could not ask to review
the audio recordings. The record defeats this contention. Immediately after giving the
challenged instruction, the district court told the jury, “If you are confused by anything in
the instructions or in the verdict forms while you are deliberating, let the bailiffs know, and
then we can alleviate the confusion.”
Zarate also asserts that the district court improperly “preemptively decide[d]”
whether it would grant a jury request to listen to audio exhibits. But nothing in the district
court’s instruction told the jury that it could not listen to those exhibits; the instruction
addressed only what the jury would have with it in the deliberation room.
Finally, we are mindful of the context in which the district court gave the challenged
instruction. It did not do so until defense counsel inaccurately told the jury that it would
have the audio recordings during its deliberations. While defense counsel then told the
jury to “disregard” his statement, he did not tell the jury that it would not have the
recordings. The challenged instruction simply clarified that matter for the jury. On this
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record, Zarate has not demonstrated that the district court committed instructional error,
plain or otherwise.
Moreover, Zarate has not demonstrated that the instruction affected his substantial
rights. To do so, he must show that it was prejudicial, meaning there is a “reasonable
likelihood” that the instruction had a “significant effect” on the jury verdict.5 Watkins, 840
N.W.2d at 28. “An erroneous jury instruction will not ordinarily have a significant effect
on the jury’s verdict if there is considerable evidence of the defendant’s guilt.” State v.
Kelley, 855 N.W.2d 269, 283-84 (Minn. 2014).
Zarate contends the instruction prejudiced him because it deprived the jury of an
opportunity to review “critical evidence” on the “central disputed issue of identity”—the
audio recording of friend’s photo-lineup identification—and the state’s evidence was “not
strong” on that issue. Identification was a critical issue at trial, but Zarate understates the
strength of the state’s identification evidence. Husband and wife were consistent in all of
their statements to police that the man who attacked friend and joined Albert in attacking
husband was Zarate, whom they both knew. They sometimes identified him by name,
sometimes identified his image in a photo lineup, sometimes called him “Zortino” because
they knew him as “Tino,” and sometimes said that it was one of Albert’s three brothers but
not J. or Z. But all of these descriptions point unerringly to Zarate. Although friend’s

5 We observe that, even if Zarate had objected to the challenged instruction, he would have
been required to make essentially the same showing of prejudice to obtain a reversal. See
Watkins, 840 N.W.2d at 27 n.3 (noting that objected-to error that does not implicate
constitutional rights warrants reversal only if the appellant shows “that there is a reasonable
possibility that the error significantly affected the verdict” (quotation omitted)).
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photo identification was more equivocal, and he acknowledged some outside influences in
determining the identity of an assailant whom he did not know personally, he also told
police that he was confident that Zarate was the man who attacked him and then husband.
And all three identified Zarate as such in court. Given this evidence, it is not reasonably
likely that rehearing the audio recording of friend’s photo-lineup identification would have
had any impact on the jury’s verdict.
In sum, Zarate failed to preserve an objection to the district court’s instruction that
the jury would not have audio recordings in the deliberation room and has not demonstrated
that giving the instruction constitutes prejudicial plain error.
Affirmed.