County Office of Appellate Courts
Swanson, Attorney General, Michael Everson, Assistant
Attorney General, and Kathleen Kusz, Nobles County Attorney,
Cathryn Middlebrook, Chief Appellate Public Defender,
Benjamin J. Butler, Assistant Public Defender, for appellant.
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
district court did not commit reversible error in evidentiary
rulings challenged on appeal.
prosecutor did not commit plain error in closing argument.
alleged cumulative errors did not deny appellant a fair
sentencing order erroneously states that appellant was
convicted of all five murder charges.
GILDEA, Chief Justice.
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
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
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.
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.
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
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.
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.
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
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.
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.
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.
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. 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
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.
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.
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
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).
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