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State v. Fraga

Supreme Court of Minnesota

June 28, 2017

State of Minnesota, Respondent,
Josue Robles Fraga, Appellant.

         Nobles County Office of Appellate Courts

          Lori Swanson, Attorney General, Michael Everson, Assistant Attorney General, and Kathleen Kusz, Nobles County Attorney, for respondent.

          Cathryn Middlebrook, Chief Appellate Public Defender, Benjamin J. Butler, Assistant Public Defender, for appellant.


         1. The district court did not violate appellant's right to present a defense or abuse its discretion by excluding audio and video evidence of prior inconsistent statements made by a State witness.

         2. The district court did not commit reversible error in evidentiary rulings challenged on appeal.

         3. The prosecutor did not commit plain error in closing argument.

          4. The alleged cumulative errors did not deny appellant a fair trial.

         5. The sentencing order erroneously states that appellant was convicted of all five murder charges.

         Affirmed and remanded.


          GILDEA, Chief Justice.

         Appellant Josue Robles Fraga appeals his conviction of first-degree murder in connection with the death of S.R., Fraga's 2-year-old niece. On direct appeal, Fraga alleges several evidentiary errors, prosecutorial misconduct, and errors in the sentencing order. Because we conclude that the district court either did not err or that any error was harmless and that the prosecutor did not commit misconduct, we affirm Fraga's first-degree murder conviction. But because the sentencing order erroneously convicts Fraga of all five murder counts, we remand to the district court to correct the order.


         This case arises from the death of S.R., who, with her brother, lived with Fraga, his wife, and their four children in a mobile home in Worthington. The six children, including 2-year-old S.R., shared a bedroom. On the evening before S.R.'s death, Fraga was home with the six children while his wife was at work. Fraga picked his wife up from work around 2:30 a.m., and the two watched television for a short time before going to bed. At approximately 5 a.m., Fraga woke his wife, telling her that something was wrong with S.R. and that they needed to take her to the hospital. Fraga handed S.R. to his wife, who noticed that S.R. felt limp or "loose."

         They arrived at the hospital at 5:35 a.m. and Fraga told the receptionist, "[S.R.] just stopped breathing." An EMT took S.R. and, observing that she was not breathing, rushed her into the emergency room while beginning efforts to resuscitate her. The EMT noted that S.R. was cold-to-the-touch, unresponsive, and had no heartbeat. S.R.'s body temperature was 84 degrees. The hospital staff saw bruises on S.R.'s forehead, and the back of her head felt soft and "cushy, " indicating swelling and a buildup of fluid. Her genitals were swollen and her stomach was discolored and distended. S.R. also had a rectal prolapse, meaning "that part of the rectum was sticking out" of her body.

         While the hospital staff tried to resuscitate S.R., a doctor asked Fraga and his wife about the child's injuries. Fraga told the doctor that S.R.'s brother had jumped from a bunk bed onto S.R., landing on her with his knees. Because S.R.'s injuries-including a prolapsed rectum and trauma to her genitals-were not consistent with a small child jumping on her, hospital staff notified law enforcement about the unexplained trauma. The medical staff's attempts to resuscitate S.R. were unsuccessful and she was declared dead at 6:18 a.m. on March 20, 2008.

         Based on S.R.'s low body temperature at the emergency room and the condition of her body, the medical examiner concluded that she died sometime between 9:30 p.m. on March 19 and 1:30 a.m. on March 20. The medical examiner noted multiple contusions on S.R.'s head and body, including her forehead, elbows, knees, and back. S.R. had traumatic head injuries, suggesting a number of substantial impacts to her head, which the examiner believed caused her death. S.R.'s hair was also "basically falling off her head" during the autopsy, which would not occur so soon after death unless she was losing hair while alive, likely because of malnutrition, extreme stress, or vitamin deficiency.

         In addition, S.R. had an enlarged stomach because of a 2-inch tear in her stomach lining, which caused contents from her stomach to spill into her abdominal cavity. The likely cause of the rupture was substantial stomach compression resulting from external pressure to S.R.'s abdomen. S.R. also had abrasions on her mouth and lips and an injury to the inside of her mouth, suggesting to the medical examiner that somebody may have applied pressure to her mouth, likely to keep her quiet.

         Finally, S.R. had extensive physical trauma to her sexual organs and a prolapsed rectum. S.R. had a hemorrhage more than 2 inches long inside her rectum. In the medical examiner's opinion, the rectal prolapse and injuries were caused by "some kind of forceful penetration to the rectal area." No semen deposits were found on S.R.'s body. But feces and semen were found on S.R.'s diaper. Police were able to exclude Fraga and one of his sons, Child A, as contributors to the semen but were otherwise unable to identify the source of the semen.

         A detective interviewed Fraga about S.R.'s death. According to Fraga, on the night of S.R.'s death, the children were asleep by 10 p.m., after which he cleaned the kitchen and later picked up his wife from work. When he arrived home with his wife, he checked on the children and everything seemed fine. Fraga reported that he later woke and heard what he thought to be S.R. and her brother fighting. Fraga claimed that he saw S.R.'s brother jumping on her with his knees, so he picked up S.R., noticed that she felt "loose, " and woke his wife. Fraga denied ever sexually or physically abusing S.R. Fraga also explained the stains on his pants, stating that he was wearing a dirty pair that he had worn the previous day when cleaning the bathroom. Later testing revealed that Fraga's clothing had feces and semen in several locations. When asked if he took any drugs, Fraga stated that he took medication for erectile dysfunction.

         Police also spoke to one of Fraga's sons, Child A, and his daughter, Child B. Both denied knowing anything about S.R.'s death. Child A denied ever sexually touching S.R. or S.R.'s brother, and Child B denied ever being sexually abused. Child B repeated that she had never been abused when interviewed the next day by a forensic interviewer.

         Police collected Child A's clothing from the date and time of S.R.'s death, as well as a DNA sample from Child A. Testing revealed that Child A's clothing contained no fecal matter but had traces of his own semen. The detective who collected Child A's clothing gave Child A his business card and told him to call if he remembered anything.

         That evening, Child A called the detective to report that he remembered seeing S.R.'s brother jump on S.R. the previous night. Police later learned that Child A had received a phone call shortly before he called police and that the call was from the motel where Fraga was staying. When asked about this call, Child A admitted that his father had called him and told him to tell the police that he had seen S.R.'s brother jumping on S.R.

         As part of their investigation, police also searched Fraga's mobile home. In the bathroom, investigators found a roll of duct tape on the vanity. Fraga's wife later testified that the duct tape had not been there when she left for work earlier that day. There were also strips of used duct tape and tissues containing feces in the bathroom's wastebasket. The police discovered a wet pair of S.R.'s sweatpants containing a full bowel movement and Child A's semen in the bathtub.[1] Investigators also found a sock in Fraga's bedroom that had feces and Fraga's semen on it. They found bottles of male and female performance-enhancing dietary supplements, lubricant, and an adult video in Fraga's bedroom, as well as a condom in Fraga's car.

         Following its investigation, the State charged Fraga with S.R.'s murder and a grand jury subsequently indicted Fraga on three counts of murder. After a jury trial, Fraga was convicted on all counts. At trial, Child A testified that he had never sexually touched S.R. and Child B testified that she did not witness S.R.'s murder. This testimony was consistent with the prior statements both children made to investigators.

         But after trial, Child A admitted having sexual contact with S.R. and her brother. In light of that new evidence, the district court granted Fraga's request for a new trial.

         Before the second trial and 3 years after S.R.'s death, Child B disclosed in a letter to a friend that she had also given false testimony at the first trial. Child B wrote that Fraga had in fact sexually abused her from the time she was in first or second grade, and that she had witnessed Fraga kill S.R. Child B asked her friend not to tell anyone, but the friend gave the letter to a therapist at the residential mental-health treatment center at which the two girls were living. The therapist contacted the police. After receiving this new evidence, a grand jury returned an amended indictment against Fraga, containing two additional counts of murder.[2]

         At the second trial, the jury found Fraga guilty of all five counts. We reversed Fraga's convictions and remanded for a new trial. State v. Fraga, 864 N.W.2d 615 (Minn. 2015) (concluding that a juror who was actually biased against Fraga was seated).

         This appeal follows from Fraga's third trial, which involved the same five counts of murder as the second trial. Child A and Child B testified at the third trial. During the trial, Child A acknowledged having initially lied about sexually touching S.R. and S.R.'s brother, but stated that he had never sexually penetrated either and denied having anything to ...

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