This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).







State of Minnesota,





Jason Dean Setter,




Filed July 27, 2004


Anderson, Judge


Washington County District Court

File No. K1-02-4191


John Stuart, State Public Defender, Michael F. Cromett, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for appellant)


Mike Hatch, Attorney General, James B. Early, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and


Doug Johnson, Washington County Attorney, Washington County Government Center, 14949 62nd Street North, Stillwater, MN  55082-0006 (for respondent)


            Considered and decided by Shumaker, Presiding Judge; Peterson, Judge; and Anderson, Judge.


U N P U B L I S H E D  O P I N I O N




            Appellant was convicted of third-degree criminal sexual conduct.  Appellant argues that he was denied a fair trial, the district court did not properly instruct the jury on a lesser-included offense issue, and the unanimous-verdict requirement and the interests of justice require a reversal.  Because we conclude that appellant received a fair trial, no prejudice attached to error, if any, in the jury instructions, and appellant’s argument that the interests of justice require reversal fails, we affirm.



            On May 16, 2002, police interviewed A.H. in the presence of one of her teachers, her principal, and her mother.  A.H. told the officer that she had engaged in sexual intercourse with appellant at a hotel and twice had sexual intercourse with appellant in his car.   

            A.H. met appellant in 2000 when she was 13 years old.  A.H. testified that she believed appellant was 16 or 17 at the time; he was actually 21.  A.H. testified that she learned his true age, which was 23 at the time, while riding in his friend’s car when she saw appellant’s driver’s license.  A.H. testified that in February 2002, while driving in a car with appellant, one of appellant’s friends, and one of A.H.’s friends, appellant started kissing her and touching her “underneath [her] shirt.”  A.H. stated that she attempted to break up with appellant after this incident but that appellant became angry and pushed her against a wall. 

            In March 2002, A.H. testified that appellant and one of his friends brought A.H. to appellant’s hotel room.  Appellant’s friend then stepped out of the room, and appellant had sexual intercourse with A.H. without her consent.  A.H. claimed that, although she screamed during the event, nobody came to her aid, even though appellant had one or more friends just outside the room.  A.H. alleged that, throughout April 2002, appellant would climb onto the roof of her house and gain access to her bedroom through a window and have sexual intercourse with her.  A.H. never yelled for help because she was afraid something would happen to her or her sister if she did.

A.H. conceded that she had never had sexual intercourse with appellant in his car.  She made this false statement because her mother was present during the interview, and A.H. did not want her mother to know of the sexual activity in A.H.’s bedroom.  A.H. also conceded that she had told one of appellant’s witnesses that she had never had sexual intercourse with appellant at all but explained that she was being sarcastic. 

            One of A.H.’s friends corroborated that A.H. had told her that A.H. and appellant had engaged in sexual intercourse.  Another of A.H.’s friends testified that she had advised appellant to stop pursuing A.H. and that it was illegal for them to have sex; appellant allegedly admitted he knew that but did not deny having had sexual intercourse with A.H.   

            A.H.’s father testified that he first learned appellant’s true age in May 2002 when A.H. reported the sexual intercourse with appellant.  A.H.’s father also testified that a restraining order was issued against appellant but that appellant continued to call the family home.  One telephone conversation was recorded.  During that conversation, A.H.’s father informed appellant that A.H. lost her virginity to appellant, and appellant replied, “She didn’t los[e] her virginity to me.”  A.H.’s father responded, “So you are saying that you weren’t her first.”  Appellant did not directly answer the question but then did concede that A.H.’s father was “probably right.”  A.H.’s father also stated that appellant had, in an earlier conversation, agreed that A.H. had lost her virginity to appellant; appellant claimed to have no memory of agreeing with that statement.  Appellant told A.H.’s father that he had gone to A.H.’s school in May because A.H. had incorrectly told him that she was pregnant.  Despite some conversation about the consequences if A.H. had been pregnant, appellant never denied the pregnancy possibility.  Appellant did not object to the introduction into evidence of any part of the tape. 

            On cross-examination, counsel for appellant asked A.H.’s father, “And your testimony is that you’re not—you don’t recall whether at that point . . . you were of aware of [appellant]’s age, is that correct.”  A.H.’s father replied, “We found out about [appellant]’s age when the incident at the school happened and we found out that the Forest Lake police were quite familiar with [appellant] and we had,” at which point appellant’s counsel cut off further testimony by A.H.’s father but did not object to the testimony or move to strike it.  Earlier, appellant had moved the district court for an instruction preventing one of the officers from testifying as to previous contact with appellant.  The prosecutor offered to instruct the officer not to mention past contacts with appellant but also wanted the officer to testify that he knew appellant’s age.  The district court, with appellant’s agreement, adopted the prosecutor’s suggestion.

            Appellant introduced several rebuttal witnesses: one witness testified that A.H. had denied ever having had sexual intercourse with appellant and three testified that A.H. had said she was trying to “screw over” appellant.  But all three of the latter witnesses had a personal relationship with appellant and significant credibility issues.

            The district court instructed the jury, “The law provides that [] upon the prosecution of a person for a crime, if the person is not guilty of that crime the person may be guilty [of] a lesser crime.”  The district court also instructed them, “If you find beyond a reasonable doubt that the defendant has committed each element of the lesser included crime but you have a reasonable doubt as to any different element of the greater crime, the defendant is guilty only of the lesser included crime.”  The district court also stated, “In order for you to return a verdict, whether guilty or not guilty, each juror must agree with the verdict.  Your verdict must be unanimous.” 

            In closing, the prosecutor argued that, despite appellant’s argument to the contrary, A.H. was the one who had ended the relationship:

 [T]he defense here is suggesting to you that she’s making this whole thing up to get back at him because she’s angry that he dumped her.  Would you please give [A.H.] more credit than that?  I’ll agree that she made a bad choice here, that she made a very unwise decision, but please give her more credit than that.  She did not come into this courtroom as she did yesterday and testify in front of you folks on this jury by going over there and taking an oath and sitting in that chair and telling you and looking at him and tearfully recalling that painful first sexual encounter and then to have it suggested that she made this whole thing up.


The prosecutor continued:

She did not sit there and come in here and tell you that she had sex with him but that none of it was true because she was angry because he dumped her.  That is the most ludicrous defense that you could ever imagine.  But you know, it’s probably the only thing they could cook up in this case.


Appellant’s objection to this argument was sustained, and the district court instructed the jury to disregard the comment.  The prosecutor continued without objection from appellant:

To imagine that a 15-year-old girl can engage in this charade of getting everyone to believe something that wasn’t true, police officers, you know, the court system, you folks on the jury, give her more credit than that.  She’s not that kind of a girl.  She’s not that clever.  She’s not that cunning.  And she isn’t that kind of a person who would ever do something like that.

            And you know what else I’d like you to think about?  Let’s think about those witnesses who came in here and said that she was making this up, those Johnny-come-latelies crawling out of the woodwork, witnesses that showed up this morning and said oh, [A.H.] told me that she was going to get back at [appellant] and she was going to make this up about having sex with him.


            The jury found appellant guilty of third-degree criminal sexual conduct.  This appeal followed.


1.  Fair trial

            All defendants accused of crimes are entitled to due process.  U.S. Const. amend V; Minn. Const. art. I, § 7.  One aspect of due process is that the defendant must be given a fair trial.  State v. Reardon, 245 Minn. 509, 513-14, 73 N.W.2d 192, 195, (1955).  Appellant claims he was denied a fair trial for three reasons: (1) inadmissible evidence was admitted, (2) there was prosecutorial misconduct, and (3) the district court failed to redact portions of an audiotape.

a.  A.H.’s Father’s Testimony

            A.H.’s father testified on cross-examination that he determined appellant’s true age from the police, who were familiar with appellant.  Despite the absence of an objection by appellant to this testimony, appellant now argues that this testimony deprived him of a fair trial.  We disagree.

            In State v. Underwood, defense counsel asked the arresting officer whether there had been any talk between the officer and the defendant after a certain point in time.  281 N.W.2d 337, 342 (Minn. 1979).  The officer replied that he asked whether the defendant would be willing to put incriminating statements on tape that the defendant had allegedly made earlier, which the defendant refused to do.  Id.  The supreme court stated that comments on the defendant’s Fifth and Sixth Amendment rights “are not admissible unless absolutely necessary.”  Id.  Because this testimony was elicited on cross-examination, the supreme court stated, “[T]he defense attorney has a certain responsibility to limit the cross-examination so as to avoid areas which he knows may lead to objectionable testimony,” but also stated, “the state has a duty to properly prepare its own witnesses prior to trial.”  Id.  Because defense counsel had not intentionally elicited this testimony to “bootstrap a reversal” and because there were other, more serious errors, the supreme court reversed the defendant’s conviction stating, “It might well be that were this the only error, or were this error to arise in another case, reversal would be unnecessary.”  Id.

            In State v. Carlson, defense counsel, on cross-examination, asked one of the police officers if he “had any information . . . connecting [the] defendant to [prior] marijuana sales,” to which the officer replied that he knew that the defendant had been involved in other drug sales but was unsure about marijuana; this resulted in a motion for a mistrial, which was denied.  264 N.W.2d 639, 640 (Minn. 1978).  The defendant argued that the answer was nonresponsive and that the prosecution had not properly prepared the witness.  Id. at 641.  The supreme court rejected this argument because the defendant had elicited the testimony despite the fact that “[d]efense counsel knew what was in the file.”  Id.  The supreme court ruled that defense counsel should have taken advance steps to prevent this testimony because counsel knew the defendant had been involved in other drugs.  Id.  The supreme court concluded that the officer’s response to defense counsel’s question was not reversible error.  Id. at 643.

            The testimony here does not require a reversal because appellant was the one who elicited this testimony and because appellant neither objected to it nor sought to prevent it.  Prior to the testimony by the father of A.H., appellant had asked the district court to preclude the officer who initially interviewed A.H. from testifying that he knew appellant through a previous law-enforcement matter.  The parties stipulated that the officer would not testify that he knew appellant because of a previous investigation but that the officer could testify that he knew appellant’s age when A.H. told him of her relationship with appellant.

Moreover, prior to cross-examining A.H.’s father, appellant’s trial counsel knew, or should have known, that A.H.’s father first learned appellant’s age from the officer, who in turn only knew it because of prior contacts with appellant.  In Carlson, defense counsel knew that his questioning was moving into dangerous territory because counsel knew that the defendant had been involved in prior drug sales.  Id. at 641.  Similarly, here, appellant’s trial counsel knew that the only reason A.H.’s father learned appellant’s age was because the officer was familiar with appellant.  Thus, appellant’s trial counsel knew, or should have known, that he was approaching the line where his cross-examination might elicit inadmissible evidence.  Despite this knowledge, appellant’s trial counsel neither sought a protective order nor made any other attempt to prevent the disputed testimony from A.H.’s father as he had done with the officer.   

Nor does Underwood require reversal here because the disputed comment in Underwood was directed at the defendant’s exercise of his constitutional rights, which is never permissible, 281 N.W.2d at 342, not as a way of introducing the defendant’s criminal past, which is permissible under certain circumstances.  See Minn. R. Evid. 404(b) (permitting evidence of a criminal defendant’s past crimes in some circumstances).  Because the latter is a less serious breach, and because it was appellant’s trial counsel who should have proceeded more carefully in this area of questioning, Underwood does not require reversal.  See 281 N.W.2d at 342 (stating that reversal may not be required in other cases).

Thus, because appellant elicited this testimony, appellant did not object to the testimony, and the testimony was very brief, we conclude that A.H.’s father’s testimony that appellant was known to the police did not deprive appellant of his due process rights.

b.  Prosecutorial Misconduct

            Appellant alleges the prosecutor committed three different acts of misconduct:  belittling appellant’s theory of the case, vouching for A.H.’s credibility, and commenting on appellant’s witness.

                        i.  belittling

            Appellant argues that the prosecutor improperly belittled appellant’s theory when the prosecutor characterized the theory as “ludicrous” and “probably the only thing [appellant] could cook up in this case.”  But the district court sustained appellant’s objection to this comment.  “A prosecuting attorney may attack the merit of a particular defense or argument in light of the evidence, but may not belittle a defense in the abstract.”  State v. Yang, 627 N.W.2d 666, 680 (Minn. App. 2001), review denied (Minn. July 24, 2001).  Even if the prosecutor did belittle the defense, thereby committing misconduct, this “does not in and of itself require that the defendant be granted a new trial”; there must be prejudice to the defendant as a result of the error.  State v. Atkins, 543 N.W. 2d 642, 647-48 (Minn. 1996).

            Here, assuming that the prosecutor’s argument was improper, the alleged error does not require this court to grant appellant a new trial.  The district court sustained appellant’s objection to the argument and instructed the jury to disregard it.  The district court acted appropriately and properly instructed the jury.  Appellant neither moved for a mistrial nor sought any other relief.  On appeal, appellant has not attempted to show prejudice, and we conclude that there was no prejudice associated with this alleged error and decline to reverse the district court on this ground.  See id. (stating prejudice is required in order for a new trial to be granted).

                        ii.  vouching

            Appellant also argues that the prosecutor vouched for A.H.’s credibility in his closing argument.  Because appellant did not object to the alleged vouching, we review only for plain error.  State v. Ives, 568 N.W.2d 710, 713 (Minn. 1997).  There is plain error only if there is “(1) error; (2) that is plain; and (3) the error must affect substantial rights.”  State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998).

It is improper for a prosecutor to give a personal opinion that a witness is credible.  State v. Parker, 353 N.W.2d 122, 128 (Minn. 1984).  The purpose of this rule is to prevent an attorney “from becoming an unsworn witness.”  State v. Everett, 472 N.W.2d 864, 870 (Minn. 1991).  Thus, it is permissible to argue that a witness is credible so long as the prosecutor does not inject the attorney’s personal opinion.  Id.

We need not decide whether the argument was improper because, again, appellant has not attempted to show any prejudice.  Without prejudice, there is no plain error.  Griller, 583 N.W.2d at 740.  Despite appellant’s arguments to the contrary, there was substantial evidence supporting the verdict; thus, any impropriety in the argument did not prejudice appellant.  Because appellant has not argued that he was prejudiced by any alleged error and because there was substantial evidence of his guilt on the record, appellant was not prejudiced by the closing argument.

iii.  comment on the witness

Appellant’s last claim for prosecutorial misconduct is that the prosecutor improperly said, “Oh,” after a witness statement.  While the prosecutor’s tone of voice and facial expression may well have indicated disbelief, on this record, appellant is unable to demonstrate that this isolated word in any way prejudiced him.  We decline to reverse the district court on this ground.

c.  evidence

Finally, appellant argues he was denied a fair trial because irrelevant and prejudicial information contained in the tape recording was erroneously admitted.  Appellant did not object to the introduction of this evidence; therefore, the plain error standard applies.  Ives, 568 N.W.2d at 713.

Appellant makes no argument that he was prejudiced; appellant merely makes a bare assertion of prejudice.  Even if every comment appellant alleged were plainly inadmissible, the comments were minimal, of little value, and not mentioned again.  The tape was introduced to show that appellant acted as he did because his girlfriend had left him, not because he had terminated the relationship, and to show that appellant implicitly agreed that he had sexual intercourse with A.H.  Therefore, there was no prejudice to appellant’s substantial rights in the admission of the entire tape and thus no plain error.

2.  Lesser-included Offense

            Appellant also argues that the district court’s instruction regarding the lesser-included offense of fourth-degree criminal sexual conduct was plain error.  The district court initially gave the jury CRIMJIG 3.20.  Later, the district court instructed the jury that it should consider the third-degree offense and only consider the fourth-degree offense if it concluded that appellant was innocent of the third-degree offense.  Appellant not only failed to object to this instruction, appellant actually argued to the jury that it should utilize this approach.

Because appellant did not object to the instruction, the instruction is reviewed only for plain error, if at all.  Ives, 568 N.W.2d at 713.  Appellant does not articulate why the interests of justice require this court to now consider this argument.  See Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996) (stating that we may only address issues not raised at the district court if the interests of justice require us to do so).  Therefore, we decline to review this issue because appellant waived this argument by advocating for the instruction and arguing that the jury should follow the instruction he now challenges.   

3.  Unanimous Verdict

Appellant argues that he was deprived of his right to an unanimous verdict because the district court did not instruct the jury that it must unanimously agree on which date the sexual act occurred.  The district court gave the jury CRIMJIG 3.04, stating, “In order for you to return a verdict, whether guilty or not guilty, each juror must agree with that verdict.  Your verdict must be unanimous.”  10 Minnesota Practice, CRIMJIG 3.04 (1999).  Appellant neither objected to this instruction nor requested any additional instructions regarding unanimity.

Because appellant did not object to the jury instruction, it is only reviewed for plain error.  Ives, 568 N.W.2d at 713.  In State v. Bolte, the supreme court implied that the district court had erred but, nonetheless, affirmed a conviction and concluded that there was no plain error in jury instructions when the district “court expressly instructed the jury pursuant to” the CRIMJIG.  530 N.W.2d 191, 199 (Minn. 1995).  We conclude, as the supreme court did in Bolte, that the error, if any, does not rise to the level of plain error, and we decline to reverse the district court.

4.  Interests of Justice

Appellant’s last argument is that the evidence was insufficient to support the verdict and that the interests of justice require a reversal of his conviction or a new trial.  The state is obligated to prove its case beyond a reasonable doubt.  State v. Berndt, 392 N.W.2d 876, 881 (Minn. 1986).  In considering a claim of insufficient evidence, this court’s review “is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in a light most favorable to the conviction, was sufficient to permit the jurors to reach the verdict which they did.”  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  The reviewing court must “assum[e] the jury believed the state’s witnesses and disbelieved any evidence to the contrary.”  State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).  “This is especially true where resolution of the case depends on conflicting testimony.”  State v. Pieschke, 295 N.W.2d 580, 584 (Minn. 1980).  The reviewing court “will not disturb the verdict if the jury, acting with due regard for the presumption of innocence and . . . [the requirement of] proof beyond a reasonable doubt, could reasonably conclude that a defendant was proven guilty of the offense charged.”  State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).

After a painstaking review of the record, we conclude that the jury could reasonably believe appellant was guilty of the charged offense.  There was more than ample evidence to support the jury’s finding.  Appellant exaggerates the deficiencies in respondent’s case and ignores the numerous credibility problems associated with his witnesses.  We therefore conclude that the evidence was sufficient to convict appellant.

Appellant also argues that, even if the evidence was technically sufficient to support his conviction, this court should have “grave doubts” about his guilt and grant a new trial.  This is an extraordinary remedy that is rarely, and not recently, granted by the supreme court.  See e.g., State v. Kallestad, 296 Minn. 483, 484, 206 N.W.2d 557, 557 (1973) (granting a new trial because of “grave doubts”); State v. Johnson, 277 Minn. 368, 375-76, 152 N.W.2d 529, 533 (1967) (granting a new trial because it appeared that the death had been accidental and the jury seemed to doubt whether the defendant was actually at fault despite the conviction).  These decisions are exceptional.  Appellant’s analysis is inapplicable to the present controversy because the evidence in favor of the state’s argument was far stronger and more persuasive than the evidence in Johnson, and we affirm the district court on this issue.