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State v. Gutierrez

August 21, 2003



The trial court's unobjected-to jury instruction with respect to committing criminal sexual conduct with "force or violence, either upon or affecting the person," did not constitute plain error.

Evidence of appellant's physical abuse of the victim's sister was properly admitted under Minn. Stat. § 634.20 (2002).

The trial court did not abuse its discretion when it concluded that the defense "opened the door" to the admission of otherwise inadmissible evidence.

The trial court did not abuse its discretion when it excluded appellant's third-party perpetrator evidence.

Appellant's mandatory life sentence without possibility of release does not constitute cruel or unusual punishment under Article I, Section 5, of the Minnesota Constitution.


Heard, considered, and decided by the court en banc.

The opinion of the court was delivered by: Page, Justice.

Concurring specially, Hanson and Meyer, JJ.


On May 25, 2001, appellant Paul (NMN) Gutierrez, Jr., was indicted for causing the death of 18-month-old Makaio Lynn Radke on April 20 or 21, 2001. The indictment charged Gutierrez with three counts: (1) first-degree murder while committing or attempting to commit criminal sexual conduct in the first or second degree in violation of Minn. Stat. § 609.185(2) (2002); (2) first-degree murder while committing child abuse in violation of Minn. Stat. § 609.185(5) (2002); and (3) second-degree felony murder while committing or attempting to commit assault in the first degree in violation of Minn. Stat. § 609.19, subd. 2(1) (2002). On March 4, 2002, a jury found Gutierrez guilty on all counts. He was sentenced on count one to life imprisonment without the possibility of release. We affirm.

We begin with a recitation of the facts underlying Gutierrez's conviction. Peggy Radke (Radke) had three children: Makaio and Alaeatra Radke from her marriage with Matthew Radke, and Dana Jacobs from a previous marriage. At the time of Makaio's death, Radke was going through a divorce from Matthew Radke, who moved out of their house on January 11, 2001. Approximately one week later, Gutierrez and Kristina Baker*fn1 moved into the Radke home. Although never formally agreed upon, Gutierrez and Baker took care of Radke's children while Radke was at work in exchange for being allowed to live at the Radke home. Once Baker began working as well, Gutierrez became the primary caregiver for the children.

Soon after Gutierrez and Baker moved into the Radke home, Matthew Radke and various health care providers began noticing unusual bruising on Makaio.*fn2 Makaio was seen by doctors on January 24, 2001, and again on February 1, 2001, for symptoms related to ear infections and bronchitis. No evidence of physical or sexual abuse was noted at the time of either visit to the doctor. Chest x-rays taken at the time of the January 24 visit showed no signs of fractures to Makaio's ribs. However, when Makaio was brought to the doctor's office for a follow-up visit on February 28, 2001, his doctor noticed a half-inch bruise on each of Makaio's cheeks. Although Radke stated that these bruises had been caused when Makaio fell while learning to walk, the doctor felt that this did not adequately account for the location, size, and shape of the bruises and a child abuse report was filed.

On March 2, 2001, a child protection worker made an unannounced visit to the Radke home. The worker noted a slight bruise on one of Makaio's cheeks. Radke's explanation for the bruise was that Makaio was learning to walk and frequently fell. Ultimately, the child protection worker concluded that the child abuse report could not be substantiated.

On March 21, 2001, Matthew Radke took Makaio to a police station to report an injury to Makaio's left foot. The police photographed Makaio's foot and head, and suggested that he be taken to urgent care for treatment. Examination at urgent care confirmed the foot injury and revealed, in addition, an injury on Makaio's right hip, which appeared to have been caused by a blow from or a collision with a straight-edged object, several bruises on his face and chin, including a small bruise on the center of his forehead, and abrasions on his head, which were scabbed over. These injuries were reported to child protection and on March 26, 2001, the child protection worker made a second unannounced visit to Radke's home. The child protection worker again concluded that the report of abuse could not be substantiated.

The next reported incident occurred on April 11, 2001, when Matthew Radke took Makaio to the police for the second time. This time it was to report bruises on Makaio's face, legs, and back, which according to Matthew Radke made Makaio look as though he had been beaten up. Matthew Radke told the police that three days earlier Makaio had had no bruising in those areas. The police again photographed and documented the bruising.

Two days later, on April 13, 2001, the children's guardian ad litem visited the Radke home and observed two bruises on Makaio's cheeks. Radke stated that Makaio had slipped in the bathtub while she was bathing him.*fn3 The guardian ad litem reported these injuries to the Department of Human Services and asked the police to investigate them, which they did that day. Pictures of Makaio's injuries were taken by the same police officer who photographed Makaio on April 11, 2001. The officer testified that, while he did not see any injuries beyond those apparent on April 11, he noticed that the bruising on Makaio's left cheek was more pronounced on April 13.

As a result of these incidents, a different child protection worker conducted an unannounced visit to the Radke home on the morning of April 20, 2001. At trial, this child protection worker testified that while she saw three healing bruises on Makaio's body that morning, no other injuries were visible, and that during the time she spent at the Radke home Makaio did not show any hesitancy to be around his mother, although he seemed abnormally quiet and listless. She also testified that Alaeatra appeared to be a normal, healthy child and that there was no evidence of any abusive behavior by Radke toward Alaeatra. Based on her observations, the social worker concluded that there was no evidence that Radke had intentionally injured Makaio.*fn4

At approximately 1 p.m. that afternoon, Radke and Baker left for the day, leaving Makaio, Alaeatra, and Reanna in Gutierrez's care. Dana was at school, after which she went to her father's house for the evening. After they ran some errands, Baker took Radke to Baker's parent's house so that Radke could rest while Baker was at work. Baker returned to pick up Radke at 11:15 p.m. and the two arrived at the Radke home at approximately 1 a.m. on Saturday, April 21, 2001. When they arrived, Gutierrez and Reanna were asleep on the living room couch. At some point, having woken up, Gutierrez told Radke that the day had gone well except that he had spanked Alaeatra because she had fed the dog pizza and that Makaio had almost poked himself in the eye with a pencil. Baker and Gutierrez stayed up until about 2 a.m. before going to sleep. Radke stayed awake all night. Radke testified that the door to Makaio and Alaeatra's bedroom was closed when she got home and that she did not check on them because she assumed that they were in there.

When Alaeatra woke up the next morning, Radke fixed her breakfast. Gutierrez woke up at approximately 8 a.m. and peaked into Makaio and Alaeatra's room before closing the door. Baker got up at around 8:30 a.m. At some point during the morning, Gutierrez called Radke into the bedroom to tell her about some bruises that Alaeatra had on her buttocks. He stated that he assumed that the bruising was caused by a spanking he gave Alaeatra for feeding the dog pizza the night before. Because Matthew Radke was scheduled to pick up Alaeatra and Makaio later that afternoon, Radke called the children's guardian ad litem to self-report the bruising. Radke told the guardian that Alaeatra had gotten the bruises from falling on a toy. ...

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