This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).







State of Minnesota,





Larry Byron Mueller,




Filed August 14, 2001


Amundson, Judge



Mower County District Court

File No. K8-99-1632



Mike Hatch, Minnesota Attorney General, Natalie E. Hudson, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and


Patrick Oman, Mower County Attorney, 210 First Street Northeast, Austin MN 55912 (for respondent)


Stephen V. Grigsby, 1159 University Avenue West, Saint Paul, MN 55104 (for appellant)


            Considered and decided by Amundson, Presiding Judge, Lansing, Judge, and Shumaker, Judge.

U N P U B L I S H E D  O P I N I O N


            Appellant was convicted of second-degree criminal sexual conduct.  During closing arguments, the prosecutor exhibited photographs of a notorious serial killer and child molester who was not in any way connected with the crime charged.  We reverse.


            During July 1999, six-year-old A.E. attended day care at the home of Larry Mueller and his wife.  On July 8, 1999, while A.E.’s mother was giving her a bath they were discussing bad touch and good touch.  A.E. indicated that Mueller had touched her in a way she would characterize as bad touch.  She indicated that when she was playing in a tent, Mueller stuck his head inside the tent, removed her pants and underwear, and touched her vagina with his hands and mouth.  She also indicated that Mueller had sucked her breasts.  A.E. told her mother that Mueller told her “this is what boys do to girls when they like them.”  A.E.’s parents immediately contacted the police.

After Detective David Schafer interviewed Mueller on several occasions, Mueller was charged with one count of first-degree criminal sexual conduct in violation of Minn. Stat. § 609.342, subd. 1(a) (2000), and one count of second-degree criminal sexual conduct in violation of Minn. Stat. § 609.343, subd. 1(a) (2000). 

During trial, Schafer answered detailed questions regarding his interviews with Mueller in particular and described his methods of conducting interviews when there are accusations of sexual misconduct in general.  Schafer pointed out several instances during his interviews with Mueller when he thought that Mueller was being deceitful or otherwise was not credible.  Mueller called several witnesses who testified to his character.  During closing argument, the prosecutor argued that character evidence may be sometimes the most misleading type of evidence.  As an example, the prosecutor displayed pictures of John Wayne Gacey, a notorious serial killer and child molester and argued that Gacey also seemed to have a good reputation in his community prior to the discovery of 33 corpses in his house.  The prosecutor pointed out to the jury that he was using Gacey only as an example of misleading character evidence and that Mueller was nothing like Gacey.    

After the trial, Mueller was convicted of second-degree criminal sexual conduct.  Citing the fact that Mueller refused to take responsibility for his actions and because the victim was particularly vulnerable, the district court imposed an upward dispositional departure from the presumptive sentence.  This appeal followed.       


Mueller contends that he was denied a fair trial because the prosecutor, during closing arguments, showed the jury pictures of John Wayne Gacey, a serial killer and child molester.  The general standard for reviewing alleged acts of prosecutorial misconduct is to determine

whether the misconduct, viewed in the light of the whole record, appears to be inexcusable and so serious and prejudicial that defendant's right to a fair trial was denied.

State v. Booker, 348 N.W.2d 753, 755 (Minn.1984) (quotation omitted).  In making this review, we pay special attention to those statements that may inflame or prejudice a jury where credibility is a central issue.  State v. Porter, 526 N.W.2d 359, 363 (Minn. 1995).  Where no purpose is served by comparing a defendant to a notorious criminal other than to attempt to impassion the jury, the comparison may constitute prosecutorial misconduct.  See State v. Thompson, 578 N.W.2d 734, 743 (Minn. 1998) (prosecutorial misconduct found where prosecutor repeatedly compared defendant to O.J. Simpson and hypothesized that defendant worried about whether he could “get off like O.J. did”). 

Here, there was no objection to the prosecutor’s remarks.  In the absence of a timely objection, we review a claim of prosecutorial misconduct under the plain-error rule.  State v. Hunt, 615 N.W.2d 294, 302 (Minn. 2000).  We must determine whether the alleged misconduct “was so clearly erroneous” under the law and so prejudicial to the defendant’s right to a fair trial that his “right to a remedy should not be forfeited.”  Id. 

During closing arguments, the prosecutor showed the jury pictures of Gacey, a notorious criminal who sexually abused and murdered 33 children.  The pictures, showing Gacey as a member of the Jaycees, at a bicentennial party, and meeting Rosalyn Carter, were used to demonstrate that appearances can be deceiving.  Before introducing the Gacey photographs, the prosecutor stated that Mueller was “nothing like [Gacey]” and that he was using the images because it was “a good example” that “to know character is very, very difficult at best.”  The state argues that the prosecutor brought up the image of Gacey not as a sexual predator, but as an example that character evidence could sometimes be misleading.  This argument is unconvincing.  Mueller’s character evidence was central to his defense.  Impugning that evidence by showing the image of a monstrous serial killer and child molester was not designed to make the state’s point in a factual way, but rather to inflame the jury’s passions.  As such, it constitutes prosecutorial misconduct.

            Prosecutorial misconduct, by itself, does not mandate that a defendant be granted a new trial.  Porter, 526 N.W.2d at 365.  Even where misconduct is established, we nevertheless must determine whether the defendant was denied a fair trial.  Id.  A defendant is not entitled to a new trial where the misconduct was clearly harmless beyond a reasonable doubt.  Id.  To make this determination, we look at the prosecutor’s misconduct as a whole.  State v. Richardson, 514 N.W.2d 573, 579 (Minn. App. 1994).

Here, the evidence against Mueller was not overwhelming.  There was no physical evidence of sexual conduct and the case essentially came down to the credibility of the state’s sole direct witness, A.E.   Introducing the pictures of Gacey was inexcusable and prejudicial in what was a close case.  Indeed, the case was so close, the jury acquitted Mueller of first-degree criminal sexual conduct, apparently unconvinced from A.E.’s testimony that penetration, rather than just touching, occurred.

            Because we reverse Mueller’s conviction, we need not address the sentencing issue he raises.