This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).








State of Minnesota,





Manuela Etzel,



Filed October 3, 2000


Crippen, Judge


Ramsey County District Court

File No. K498405



Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN  55103; and


Susan Gaertner, Ramsey County Attorney, Darrell C. Hill, Assistant County Attorney, 50 W. Kellogg Blvd., Suite 315, St. Paul, MN  55102 (for respondent)


John M. Stuart, State Public Defender, Chad M. Oldfather, Assistant State Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN  55414 (for appellant)


            Considered and decided by Crippen, Presiding Judge, Peterson, Judge, and  Schumacher, Judge.

U N P U B L I S H E D   O P I N I O N


            We affirm the conviction of appellant Manuela Etzel because there is no evidence that prosecutorial misconduct, if any, played a substantial role in convincing the jury to convict.  We also conclude that the trial court did not abuse its discretion in refusing to consider sentencing circumstances unrelated to appellant’s crime. 


            Accused in the death of a small child who was in her care, appellant was convicted of murder in the second degree while committing a felony under Minn. Stat. § 609.19, subd. 2(1) (1998).  Challenging this conviction, appellant argues that the prosecutor committed prejudicial misconduct at various points in the trial.  Appellant also contends that her family’s deportation for unrelated reasons must be considered grounds for reducing appellant’s sentence.


            1.         Appellant argues that the prosecution committed misconduct in referring to appellant’s statement to police as a “confession,” by calling appellant a liar, by arguing that five medical opinions as to intentional injury necessarily satisfied the burden of proof beyond a reasonable doubt, and by denigrating the defense.  Appellant did not object to any of these comments during trial, nor did she request a curative jury instruction during trial.

            A defendant who fails to object to the prosecutor’s statements or to seek specific cautionary instructions is deemed to have forfeited the right to have the issue considered on appeal, but this court may still reverse if “the prosecution’s comments are unduly prejudicial.”  State v. Parker, 353 N.W.2d 122, 128 (Minn. 1984) (citing State v. Gunn, 299 N.W.2d 137, 138 (Minn. 1980)).  The test is whether the inappropriate comments played a substantial role in convincing the jury to convict the defendant. State v. Parker, 417 N.W.2d 643, 647 (Minn. 1988). 

            Without determining whether the prosecution’s comments labeling appellant’s statements as “confessions” and calling appellant a liar constituted misconduct, we conclude that the level of conduct was not severe and that these remarks did not play a substantial role in convincing the jury to convict appellant.

            Appellant has not shown the prosecutor committed other misconduct.  The prosecution’s argument regarding the number of medical witnesses was fair; it was used to show how the state could meet its burden of proof and not as a means of suggesting that the sheer number of the state’s medical witnesses lessened its burden of proof.  And insofar as the argument misstated the prosecutor’s burden of proof, it was nullified by the trial court’s jury instructions on the presumption of innocence and definition of reasonable doubt.  See, e.g., State v. Trimble, 371 N.W.2d 921, 926 (Minn. App. 1985) (holding that “the prosecutor’s misstatement of the standard does not require reversal because the trial court fully instructed the jury on presumption of innocence” and because defense objected to the prosecution’s statement), review denied (Minn. Oct. 11, 1985).  The prosecution’s comments regarding the defense attorney’s statements did not impermissibly “belittle a particular defense in the abstract.”  State v. Ashby, 567 N.W.2d 21, 28 (Minn. 1997) (citations omitted).

2.         Appellant also contends that because her family is to be deported (for an unrelated incident), so she will be unable to see them during her incarceration, imposing an upward departure on her sentence is not in the interests of justice.  See State v. Gilbert, 448 N.W.2d 875, 876 (Minn. 1989) (recognizing need to consider extraordinary facts in “the interest of justice”).  The decision to depart from sentencing guidelines rests within the trial court’s discretion and will not be reversed absent a clear abuse of that discretion.  State v. Spain, 590 N.W.2d 85, 88 (Minn. 1999).

Finding cause for an upward departure from the sentencing guidelines, the trial court considered the vulnerability of the child and that appellant was in a position of trust as the child’s care-provider.  The court refused to consider appellant’s family’s deportation because the reasons for the deportation were wholly unrelated to appellant’s conviction and were not within the trial court’s jurisdiction.   However unfortunate the circumstances of appellant’s separation from her family, the trial court did not abuse its discretion in fashioning appellant’s sentence.