This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA IN COURT OF APPEALS A15-0128
State of Minnesota, Respondent,
vs.
Dashaunta Dmar Gomez, Appellant.
Filed February 1, 2016 Affirmed Reyes, Judge
Hennepin County District Court File No. 27CR145025
Michael O. Freeman, Hennepin County Attorney, Linda K. Jenny, Assistant County Attorney, Minneapolis, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Leslie J. Rosenberg, Assistant State Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Halbrooks, Presiding Judge; Stauber, Judge; and Reyes,
Judge.
UNPUBLISHED OPINION
REYES, Judge
On appeal from his convictions of second-degree intentional murder and possession
of a firearm by an ineligible person, appellant argues that (1) the evidence failed to prove
that he intended to cause the death of another; (2) he is entitled to a new trial because the district court abused its discretion in admitting texts between appellant and his girlfriend;
and (3) the prosecutor committed reversible misconduct. We affirm.
FACTS
Around 11:00 p.m. on February 19, 2014, Demetrias Cooper went to the bar with
Q.F. and J.H., the victim in this case. Demetrias is the stepfather of appellant Dashaunta
Dmar Gomez. Both Demetrias and J.H. had been drinking that evening at the Hillside
house in Minneapolis before they arrived at the bar. J.H. was thrown out of the bar for
smoking marijuana and then walked down the street. Demetrias argued with Q.F. about
having to pick up J.H. down the street, which escalated into a physical alteration. Q.F.
punched Demetrias. In response, Demetrias attacked Q.F. with a knife and his car.
Eventually, Demetrias, Q.F., and J.H. all returned to the Hillside house. Demetrias had
one last physical altercation with both Q.F. and J.H. before driving away in his car.
Appellant testified at trial to the following. Shortly after 2:00 a.m. that same night,
Demetrias drove to his house and asked appellant to get in the car. Demetrias gave
appellant a gun and told him “to hold it.” Appellant who is left handed, put the gun in his
left-hand coat pocket. Demetrias then drove back to the Hillside house. Demetrias entered
the house and appellant followed him approximately ten feet behind. When appellant was
a few feet inside the door, J.H. approached him. J.H., who was unarmed, grabbed at
appellant’s waist. Appellant pointed the gun at J.H., pulled the trigger two times, and shot
J.H. twice in the chest. After shooting J.H., he pointed the gun at the other people in the
room and told them not to move. He ran out the front door and drove away with Demetrias.
2 Appellant gave Demetrias the gun back. Two witnesses, A.B. and C.W. testified at trial
that appellant shot J.H.
Demetrias was arrested later that same day and charged with first-degree and
second-degree murder. When appellant learned that J.H. died, he went into hiding for
nearly two weeks before he was arrested. During this time, appellant and his girlfriend
exchanged text messages on their cell phones, including that he “did the sh-t,” he needed
money, and that he would not turn himself in.
Appellant was charged with first-degree murder pursuant to Minn. Stat. § 609.185,
(a)(1) (2012); second-degree murder pursuant to Minn. Stat. § 609.19, subd. 1(1) (2012);
and being a felon in possession of a firearm pursuant to Minn. Stat. § 624.713 (2012). The
jury acquitted appellant of first-degree murder but found him guilty of the remaining two
charges. The district court sentenced appellant to 60 months in prison for being a
prohibited person in possession of a firearm and to 346 months in prison for second-degree
murder to be served concurrently. This appeal follows.
DECISION
I. Sufficient evidence exists to prove beyond a reasonable doubt that appellant intended to cause the death of the victim.
Appellant argues that there was insufficient evidence to prove that he intended to
cause J.H.’s death. He further argues that he “shot in a panic or impulsively out of fear,”
but did not intend to kill the victim. We disagree.
“When the sufficiency of evidence is challenged, we review the evidence to
determine whether, given the facts in the record and the legitimate inferences that can be
3 drawn from those facts, a jury could reasonably conclude that the defendant was guilty of
the offense charged.” State v. Fairbanks, 842 N.W.2d 297, 306-07 (Minn. 2014) (quotation
omitted). We undertake “a painstaking analysis of the record to determine whether the
evidence, when viewed in the light most favorable to the conviction, was sufficient to
permit the jurors to reach the verdict which they did.” State v. Ortega, 813 N.W.2d 86,
100 (Minn. 2012) (quotation omitted).
A defendant is guilty of second-degree murder when he or she, “causes the death of
a human being with intent to effect the death of that person or another, but without
premeditation.” Minn. Stat. § 609.19, subd. 1(1). Criminal intent is defined as: ‘“[w]ith
intent to’ or ‘with intent that’ means that the actor either has a purpose to do the thing or
cause the result specified or believes that the act, if successful, will cause that result.” Minn.
Stat. § 609.02, subd. 9(4) (2012). “A jury may infer a person's intent to kill from the nature
of the killing.” State v. Young, 710 N.W.2d 272, 278 (Minn. 2006) (citing State v. Darris,
648 N.W.2d 232, 236 (Minn. 2002)); see State v. Harris, 405 N.W.2d 224, 229 (Minn.
1987) (noting that intent can be inferred where the gun was fired at the victim at close
range). Evidence that a person is armed with a gun and shoots a person at close range is
sufficient to support a jury verdict of intentional murder. State v. Fardan, 773 N.W.2d
303, 321 (Minn. 2009) (“We concluded that evidence that the defendant was armed with a
pistol when he accosted the victim and shot him at close range would ‘alone’ be sufficient
for the jury's finding of intentional murder.”) (citation omitted). Finally, intent may also be
inferred by leaving an injured victim to die. State v. Dimmick, 586 N.W.2d 127, 129, 130
n. 7 (Minn. 1998) (citation omitted).
4 Viewing the evidence in the light most favorable to the conviction, it was sufficient
for the jurors to reach the verdict that appellant acted with intent to kill J.H. based on the
direct evidence of appellant’s own testimony. Appellant knew he had a gun prior to
entering the Hillside house. Appellant, who is left handed, pulled the gun out of his left-
hand pocket. He admitted to pointing the gun at J.H. while standing directly in front of
him, pulling the trigger two times and shooting J.H. twice in the chest. J.H. fell back on to
the couch. And after the shooting, appellant pointed the gun towards the other people in
the room and told everyone not to move. He then ran out through the front door to the car
and went into hiding for nearly two weeks.
In addition to appellant’s direct testimony as described above, A.B. observed
appellant and Demetrias drive up to and enter the house and he observed appellant
“grabbing [underneath] at his waist,” when J.H. reached towards appellant’s waist in a non-
aggressive and non-threatening manner. A.B. stated that J.H. did not hit appellant and J.H.
did not have any weapons nor did anyone else in the house. He observed that appellant’s
face was looking at J.H. and he shot him twice from about one to two feet away. Before
leaving through the front door, A.B. saw that appellant pointed the gun toward the people
in the room and he told everybody not to move. C.W. further observed appellant point
towards Demetrias, who was in the kitchen arguing with Q.F., as if to state that he was at
the Hillside house with Demetrias. C.W. also observed that J.H. did not act threatening
towards appellant, he heard the first shot and saw the second shot fired by appellant, and
saw J.H. fall back on the couch. C.W. stated that appellant told everyone in the room not
to move.
5 These circumstances are consistent with guilt because they show appellant had the
intent to cause J.H.’s death. See Minn. Stat. § 609.19, subd. 1(1). Appellant went with
Demetrias to the Hillside House, he took the gun from Demetrias, he went into the house,
approached an unarmed J.H., shot him two times in the chest at close range, and did not
help him. He then threatened the other unarmed people in the room before running out the
front door and driving away. Appellant then went into hiding for nearly two weeks.
Moreover, appellant's “presence, companionship, and conduct before and after an
offense is committed are relevant circumstances from which the jury may infer criminal
intent.” Bernhardt v. State, 684 N.W.2d 465, 477 (Minn. 2004) (quotation omitted).
Demetrias is appellant’s stepfather. It is undisputed that Demetrias, Q.F., and J.H. were in
a physical altercation that evening stemming from J.H.’s conduct at the bar. Appellant got
in Demetrias’s car at 2 a.m. in the morning, which he stated had never happened before, he
took the gun from Demetrias, and put it in his left-hand pocket, and he went into the house
with Demetrias. After he shot J.H., he ran out the front door, drove away with Demetrias,
and gave Demetrias the gun. Appellant then went into hiding for nearly two weeks. Based
on these relevant circumstances, the jury could infer his criminal intent. See id. at 477.
Appellant further argues that there was no motive or planning involved because he
was unaware of the prior altercation between Demetrias and the other men. Moreover,
appellant asserts that he was “ordered1” to accompany Demetrias, handed a gun, and went
in the house, but he was unaware who was there or what might happen. But appellant’s
1 The record does not support the allegation that he was ordered.
6 argument regarding motive and planning is misguided because they are not elements to be
proved for second-degree murder. See Minn. Stat. § 609.19, subd. 1(1).
Therefore, sufficient evidence exists to prove beyond a reasonable doubt that
appellant intended to cause the J.H.’s death.
II. The district court acted within its discretion by admitting 11 text messages between appellant and his girlfriend.
Appellant argues that the district court abused its discretion in admitting text
messages and that our review should be under the harmless-error standard. We disagree.
Although appellant initially objected to the admission of the text messages, appellant
ultimately agreed that the text messages were relevant, were not unfairly prejudicial, the
jury would decide their probative value, and appellant would have the opportunity to
discuss the substance of the text messages during his testimony. Because appellant agreed
to the admission of the text messages, the harmless-error standard is inapplicable and the
plain-error standard applies.
“The plain error standard requires that the defendant show: (1) error; (2) that was
plain; and (3) that affected substantial rights.” State v. Strommen, 648 N.W.2d 681, 686
(Minn. 2002) (citing State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998) (citing Johnson
v. United States, 520 U.S. 461, 466-67, 117 S. Ct. 1544, 1548-49 (1997))). “If those three
prongs are met, we may correct the error only if it ‘seriously affect[s] the fairness, integrity,
or public reputation of judicial proceedings.’” Id. at 686 (quoting State v. Crowsbreast, 629
N.W.2d 433, 437 (Minn. 2001)).
7 Appellant specifically argues that the text messages were not relevant because they
were not directly or sufficiently probative of consciousness of guilt or were overly
prejudicial. We are not persuaded. With some exceptions, “[a]ll relevant evidence is
admissible,” and “[e]vidence which is not relevant is not admissible.” Minn. R. Evid. 402.
One exception to the admission of relevant evidence is “if its probative value is
substantially outweighed by the danger of unfair prejudice.” Minn. R. Evid. 403. “Unfair
prejudice under rule 403 is not merely damaging evidence, even severely damaging
evidence; rather, unfair prejudice is evidence that persuades by illegitimate means, giving
one party an unfair advantage.” State v. Schulz, 691 N.W.2d 474, 478 (Minn. 2005).
The district court determined that the 11 text messages were relevant evidence of
appellant’s consciousness of guilt and that their probative value outweighed their prejudice.
The district court also allowed appellant the opportunity to testify on the substance of the
text messages and thereby minimize any potential prejudice. The 11 text messages show
appellant’s request for money while he was hiding from authorities, stating that he “did the
sh-t,” acknowledging that he would not turn himself in to the authorities, and making sure
that nobody was following his girlfriend when he met with her. Evidence of pre-arrest
flight is relevant as it “suggests consciousness of guilt.” State v. McDaniel, 777 N.W.2d
739, 747 (Minn. 2010) (quotation omitted). As such, the text messages were highly
probative of his consciousness of guilt, and the district court did not commit error in
admitting them. Because we find no error, we need not consider the second and third
prongs of the plain-error test.
III. Prosecutorial misconduct
8 Unobjected-to prosecutorial misconduct is reviewed under a modified plain-error
test. State v. Carridine, 812 N.W.2d 130, 146 (Minn. 2012). Appellant acknowledges that
he did not object to all the alleged prosecutorial misconduct.2
Under the modified plain-error test, “there must be (1) [an] error; (2) that is plain;
and (3) the error must affect substantial rights.” State v. Ramey, 721 N.W.2d 294, 298
(Minn. 2006) (citing Griller, 583 N.W.2d at 740. If the three prongs are met, we may
correct the error if necessary to “ensure fairness and the integrity of the judicial
proceedings.” Id. An error is plain if it “contravenes case law, a rule, or a standard of
conduct.” Id. at 302. In cases of prosecutorial misconduct, the appellant has the burden of
proving the error and that it was plain. Id. If appellant meets his burden, it shifts to the
state to show that the error did not affect appellant’s substantial rights, or in other words,
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. (quotations omitted).
We first examine each claim individually to determine whether it constitutes
misconduct. State v. Dobbins, 725 N.W.2d 492, 506 (Minn. 2006). If we determine there
was prosecutorial misconduct, we must examine the misconduct individually and
cumulatively to determine whether the misconduct denied appellant a fair trial. Id.
A. Misrepresented evidence
1. Direct examination of Officer Keegel
2 Appellant argues that because the prosecutor implied non-existent evidence over defense counsel’s objections, we should review the objected-to misconduct for harmless error. But, the record reflects that appellant failed to object. As such, we review the testimony for plain error.
9 Appellant alleges that the prosecutor intended to “misconstrue evidence,” tried to
“improperly imply to the jury” that he was hiding, that his family was “hiding him out,”
and prosecutors lacked evidence to prove this allegation. Appellant argues that this was
plain error “affecting his substantial rights,” thus denying him a fair trial. We disagree.
As an initial matter, appellant testified that he was hiding. When asked if he went
into hiding, appellant stated, “yes.” The prosecutor’s reference to appellant’s testimony
on hiding was not error.
Additionally, the prosecutor asked the officer questions regarding home visits made
to appellant’s family and friends in an effort to locate him. The officer stated that on four
dates, she visited approximately 20 residences in an effort to locate him or information
regarding his whereabouts. The prosecutor also asked whether Mr. Gomez’s family was
“aware he was being sought after?” The district court allowed the testimony. See
McDaniel, 777 N.W.2d at 747. The district court was within its discretion in allowing
testimony related to appellant’s admitted hiding from authorities to show consciousness of
guilt. Because appellant fails to meet his burden of showing error, we need not consider
the other prongs of the plain-error test.
2. Prosecutor’s testimony regarding facts not in evidence
Appellant further alleges that the prosecutor’s personal opinion in closing-rebuttal
arguments about her co-prosecutor’s examination was plain error because it referenced
facts not in evidence. However, appellant fails to provide case law supporting that this was
error. Mere assertions of error not supported by argument or authority cannot be
10 considered on appeal except where prejudice is obvious. State v. Modern Recycling, Inc.,
558 N.W.2d 770, 772 (Minn. App. 1997).
B. Closing argument
“[T]he prosecutor and the defense have considerable latitude in closing argument,
for neither is required to make a colorless argument.” State v. Smith, 541 N.W.2d 584, 589
(Minn. 1996). Nonetheless, appellant argues that the prosecutor committed misconduct in
her closing argument. First, he argues that she inflamed the passions of the jury by using
“arguable consciousness of guilt evidence.” Second, appellant argues that the prosecutor
committed misconduct by “improperly express[ing] her personal opinion that appellant
was guilty” based on the text messages. Third, he argues that the prosecutor intentionally
misled the jury by misstating witness testimony. Last, appellant argues that the prosecutor
improperly injected racial issues into the case to inflame the jury’s passions.
1. Consciousness of guilt evidence
The prosecutor argued that appellant was in hiding for two weeks, which was
evidence of consciousness of guilt. As discussed above, appellant admitted to hiding,
which is relevant evidence showing consciousness of guilt. See McDaniel, 777 N.W.2d at
747. Therefore, the prosecutor did not commit misconduct.
2. Personal opinion
It is generally improper for a prosecutor to express his personal opinion as to the
credibility of a witness. See State v. Ture, 353 N.W.2d 502, 516 (Minn. 1984). But, the
prosecutor’s reference to evidence produced at trial, or the reasonable inferences from that
evidence, does not constitute prosecutorial misconduct. State v. Porter, 526 N.W.2d 359,
11 363 (Minn. 1995). And conclusions and inferences may be stated so long as the
prosecutor’s opinion is not offered as substantive evidence. See id; see also State v.
Gulbrandsen, 238 Minn. 508, 511-12, 57 N.W.2d, 419, 422 (1953). The prosecutor argued
that the text messages showed appellant’s consciousness of guilt. As discussed above, the
text messages were relevant to show consciousness of guilt. The prosecutor’s comments
were not misconduct.
3. Misstating witness testimony
Next, appellant argues that the prosecutor committed misconduct in her closing
argument by intentionally misleading the jury and misstating witness testimony. In her
closing argument, the prosecutor stated that the victim “wasn’t even touching [appellant].”
“Prosecutors and defense counsel alike have an ethical responsibility to avoid
making improper closing arguments.” State v. Salitros, 499 N.W.2d 815, 817 (Minn. 1993)
(quotation omitted). Further, it is “unprofessional conduct for the prosecutor intentionally
to misstate the evidence or mislead the jury.” Id.
Here, the record is undisputed that the victim touched appellant’s waist but that he
did not hit appellant nor was he aggressive towards appellant. The statement is contrary to
the testimony and is therefore error. “An error is plain if it was clear or obvious,” and
“[u]sually this is shown if the error contravenes case law, a rule, or a standard of conduct.”
Ramey, 721 N.W.2d at 302 (citations omitted) (internal quotation marks omitted).
The state must now show that the error did not affect appellant’s substantial rights.
Ramey, 721 N.W.2d at 302. “[E]rror affects substantial rights if there is a reasonable
12 likelihood that the error had a significant effect on the jury's verdict.” State v. Gunderson,
812 N.W.2d 156, 162 (Minn. 2012) (quotation omitted).
In determining whether the prosecutor’s misstatement affected appellant’s
substantial rights, we apply the factors set forth in State v. Prtine, 784 N.W.2d 303, 315-
314 (Minn. 2010). “To determine if the error was prejudicial, we evaluate 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. (citations omitted). First, the distinction between the actual testimony
and the prosecutor’s misstatement is not subtle, which may have influenced the jury.
Second, the offending statement was brief, only mentioned once, and the prosecutor did
not linger on the statement, which was only one sentence in her 20-page closing argument.
Third, appellant’s attorney acknowledged and corrected the prosecutor’s misstatement.
Fourth, the district court instructed the jury to disregard any improper comments made by
the attorneys because they were not evidence. State v. Yang, 627 N.W.2d 666, 681 (Minn.
App. 2001) (illustrating the district court’s use of curative instructions to a jury, thus
rendering improper remarks as harmless.), review denied (Minn. July 24, 2001).
After reviewing the prosecutor’s closing arguments and taking into account the
entire record of over 1,000 pages, we conclude that, even if the one statement viewed
independently constituted misconduct, it did not have a significant effect on the jury’s
verdict and therefore did not affect appellant’s substantial rights. See Montanaro v. State,
802 N.W.2d 726, 734 (Minn. 2011) (concluding that prosecutor’s statements during
closing statement did not individually or collectively affect appellant’s substantial rights.).
13 4. Injecting racial issues
Finally, appellant alleges that the prosecutor’s comments during the closing
arguments “injected racial issues” into the case to inflame the jury’s passions. Here, the
prosecutor reminded the jury about her statement in voir dire where she discussed that they
would hear “testimony from individuals who may have a different lifestyle than you . . .
they may drink more than you do, they may use marijuana . . . And that’s one component
of who they are. . . . But does that mean that somehow they’re not telling the truth?” She
further explained that although the witnesses “probably spoke a little bit differently than
many of you do” their testimony was reasonable and corroborated.
In State v. Robinson, the supreme court concluded that a prosecutor’s comments
intended to prepare the jury for evidence “of an unfamiliar world” did not constitute
misconduct. 604 N.W.2d 355, 363 (Minn. 2000) (concluding that the statement that “the
appellant was not of the same world as the jurors and clearly was distinguishable from a
businessman from Edina, Pope John Paul and Mother Teresa [did not] impermissibly
appeal[] to the prejudice and passion of the jury”). But see State v. Ray, 659 N.W.2d 736,
746-47 (Minn. 2003) (concluding that a prosecutor’s statements that “[t]his is a dispute . . .
involving three young black males in the hood in North Minneapolis. This is not your
environment, this is the [d]efendant's environment,” constituted prosecutorial misconduct
because “[s]uch an invitation asks the jury to apply racial and socio-economic
considerations that would deny a defendant a fair trial” and should be avoided.). In this
case, the statements did not rise to the level of Robinson, much less Ray. Moreover, the
14 statements made were not racially biased. Accordingly, we conclude there was no evidence
of prejudice and that the prosecutors did not commit misconduct.
Affirmed.