This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Robert Stanley Hakala,
Affirmed in part, reversed in part and remanded
Ramsey County District Court
File No. K9-03-1968
Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Jeanne L. Schleh, Assistant Ramsey County Attorney, 50 West Kellogg Blvd., St. Paul, MN 55102-1657 (for respondent)
Considered and decided by Toussaint, Chief Judge; Huspeni, Judge;* and Crippen, Judge.*
U N P U B L I S H E D O P I N I O N
TOUSSAINT, Chief Judge
Appellant challenges his convictions of and sentence for first-degree criminal sexual conduct, arguing that (1) the evidence is insufficient to sustain his convictions; (2) the prosecutor committed prejudicial misconduct during trial; and (3) the double upward durational departure imposed by the court was improper. Because we conclude that the evidence is sufficient to support the conviction and that any prosecutorial misconduct was harmless beyond a reasonable doubt, we affirm in part. But, because the district court did not have an opportunity to consider the implications of Blakely v. Washington, 124 S. Ct. 2531 (2004), in sentencing appellant, we reverse in part and remand.
On May 31, 2003, S.T. went to Reaney’s Bar in St. Paul, where she socialized with appellant Robert Stanley Hakala. At the end of the evening, appellant offered to give S.T. a ride home, and they got into a white pickup truck parked near the bar. According to S.T., appellant drove to an alley and pulled the truck into a garage. S.T. testified that appellant then raped her over the course of three or four hours. S.T. stated that appellant choked her, threatened to kill her, and made several racist comments during the attack.
Once appellant fell asleep, S.T. stated that she walked to a nearby police station, where she told an officer that she had been raped. S.T. then led police back to the garage, which matched her description. Later that morning, S.T. went to the hospital for a medical examination, which showed physical evidence consistent with rape. In subsequent forensics tests, semen with DNA matching appellant’s was found on S.T.’s vaginal swabs, blood and semen were found on appellant’s penile swabs, and a mixture of S.T.’s and appellant’s D.N.A. was found on S.T.’s fingernail swabs.
Appellant was charged with two counts of first-degree criminal sexual conduct, in violation of Minn. Stat. § 609.342, subd. 1(e)(i) (2002), (count I) and Minn. Stat. § 609.342, subd. 1(c) (2002), (count II). Appellant denied the allegations, stating that he and S.T. had gone back to his apartment, where they had consensual sexual intercourse. Appellant’s father, Steven Hakala, told police that appellant was home the previous evening by 12:15 a.m., but also stated that appellant was with his girlfriend “Jenny.” Following a jury trial, appellant was found guilty on both counts. The district court sentenced appellant to 288 months in prison on count I, a double upward durational departure. No sentence was imposed on count II. This appeal follows.
Appellant first argues that the evidence is insufficient to support his convictions. When 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 assume “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). “[A] conviction may rest on the testimony of a single credible witness,” and it is the jury that “determines the weight and credibility of individual witnesses.” State v. Miles, 585 N.W.2d 368, 373 (Minn. 1998).
Appellant was found guilty of two counts of first-degree criminal sexual conduct. The offenses are defined as follows:
A person who engages in sexual penetration with another person . . . is guilty of criminal sexual conduct in the first degree if any of the following circumstances exists:
. . . .
(c) circumstances existing at the time of the act cause the complainant to have a reasonable fear of imminent great bodily harm to the complainant or another;
. . . .
(e) the actor causes personal injury to the complainant, and:
. . . . (i) the actor uses force or coercion to accomplish sexual penetration . . . .
Minn. Stat. § 609.342, subds. 1 (c), 1(e)(i) (2002).
Although appellant concedes that “the evidence in this case may establish that [S.T.] was brutally raped,” he nevertheless argues that S.T.’s testimony is insufficient to support his convictions because her testimony lacked corroboration and was inconsistent with appellant being the perpetrator. Corroboration of the complainant’s testimony is not required in criminal-sexual-conduct cases. Minn. Stat. § 609.347, subd. 1 (2002); State v. Cichon, 458 N.W.2d 730, 735 (Minn. App. 1990), review denied (Minn. Sept. 28, 1990). But “[t]he absence of corroboration in an individual case . . . may well call for a holding that there is insufficient evidence upon which a jury could find the defendant guilty beyond a reasonable doubt.” State v. Ani, 257 N.W.2d 699, 700 (Minn. 1977) (quoting Note, The Rape Corroboration Requirement, 81 Yale L.J. 1365, 1391 (1972)).
At trial, S.T. testified in great detail about the circumstances of the rape. She described how appellant choked her, fondled her breasts, digitally penetrated her vagina, put his fist inside her vagina in a “socking” motion twice, scratched her inside, vaginally raped her at least twice, and inserted his penis into her mouth twice. S.T. explained that she was crying and repeatedly telling appellant “no” while attempting to get him off of her. S.T. testified that she stopped resisting only after appellant repeatedly threatened that he would kill her if she did not stop. Shortly after the rape, S.T. was able to lead police back to the garage, which was unlocked, and the garage matched her description.
Furthermore, while corroboration is not required, corroborating evidence nevertheless exists in this case. “A prompt complaint by a victim is corroborative evidence of a rape.” State v. Johnson, 679 N.W.2d 378, 387 (Minn. App. 2004), review denied (Minn. Aug. 17, 2004). S.T. testified that after appellant fell asleep, she grabbed her clothes and walked to a nearby police station. She waited outside for approximately 30 minutes until the station opened, and then immediately reported what had happened. Furthermore, “[t]estimony from others about a victim’s emotional condition after a sexual assault is also corroborative evidence.” Id. According to Mary Healy, the Sexual Assault Nurse Examiner, S.T. was “very tearful” and “quite distressed.” Officer Jennifer Corcoran also testified that when S.T. reported the rape, she “was shaking, crying, her eyes were red, [and] tears were running down her face.”
Finally, there is ample physical evidence corroborating S.T.’s testimony. The forensic scientist testified that semen with DNA matching appellant’s was found on S.T.’s vaginal swabs; that a mixture of S.T.’s and appellant’s D.N.A. was found on S.T.’s fingernail swabs; and that blood and semen were found in appellant’s penile swabs. Furthermore, Healy observed significant injuries to S.T.’s vaginal wall and cervix, along with redness, irritation, and tenderness over the labia. Using the colposcope, Healy also observed fissures on the posterior forchette that were red and abraded, which she said are “common with sexual assault.”
Although there were some inconsistencies between S.T.’s testimony and Healy’s and Officer Corcoran’s description of what S.T. told them, “inconsistencies are a sign of human fallibility and do not prove testimony is false, especially when the testimony is about a traumatic event.” State v. Mosby, 450 N.W.2d 629, 634 (Minn. App. 1990), review denied (Minn. Mar. 16, 1990). Moreover, inconsistencies and related credibility determinations were for the jury to assess. State v. Pippitt, 645 N.W.2d 87, 92 (Minn. 2002), and we must assume that the jury believed the state’s witnesses and disbelieved any evidence to the contrary. Therefore, we conclude that the evidence as a whole, viewed in a light most favorable to the conviction, was sufficient to permit the jurors to convict appellant of both counts of first-degree criminal sexual conduct.
Appellant also argues that he is entitled to a new trial because the prosecutor committed serious and prejudicial misconduct. When reviewing a claim of prosecutorial misconduct, we “will reverse only if the misconduct, when considered in light of the whole trial, impaired the defendant’s right to a fair trial.” State v. Powers, 654 N.W.2d 667, 678 (Minn. 2003). But we “will not grant a new trial if the misconduct was harmless beyond a reasonable doubt.” State v. Gates,615 N.W.2d 331, 340 (Minn. 2000).
Appellate courts determine whether prosecutorial misconduct is harmless based, in part, on the type of misconduct involved. Id. “If the prosecutorial misconduct is serious, it will be deemed harmless beyond a reasonable doubt if we are sure the verdict rendered was unattributable to the error.” Id. “If the misconduct is less serious, the verdict will be affirmed so long as the misconduct did not likely play a substantial part in influencing the jury to convict.” Id.
Failure to object at trial ordinarily constitutes a waiver of the right to raise the issue on appeal. State v. Malaski, 330 N.W.2d 447, 451 (Minn. 1983). But we may consider the claimed error on appeal if the error was plain and if it affected the defendant’s substantial rights. Id.; see also State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998) (setting out plain-error test). If this standard is met, we may correct the error only if it “seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.” State v. Crowsbreast, 629 N.W.2d 433, 437 (Minn. 2001) (quoting Johnson v. United States, 520 U.S. 461, 467, 117 S. Ct. 1544, 1549 (1997)). But a defendant’s failure to object implies that the comments were not prejudicial. State v. Whittaker, 568 N.W.2d 440, 450 (Minn. 1997).
A. Evidence that crime was racially motivated.
First, appellant contends that the prosecutor improperly inflamed the passions and prejudices of the jury by making race an issue in the case. A prosecutor may not seek a conviction at any price. State v. Salitros, 499 N.W.2d 815, 817 (Minn. 1993). Thus, a “prosecutor must avoid inflaming the jury’s passions and prejudices against the defendant,” or otherwise seek to distract the jury from its proper role of deciding whether the state has met its burden. State v. Porter, 526 N.W.2d 359, 363 (Minn. 1995); Salitros, 499 N.W.2d at 819. This court pays “special attention to statements that may inflame or prejudice the jury where credibility is a central issue.” Porter, 526 N.W.2d at 363.
In her opening statement, the prosecutor argued:
[T]his case isn’t one about sex. This is a case about a man, the defendant Robert Hakala, who feels that somehow he is better than the victim in this case. He somehow feels that because the victim is black she is worth less and that is why he raped [her], an African American female, on May 31st. This defendant repeatedly raped [her] and while doing so told her that he would kill her and that no one would miss a black person. While doing so, he told this African American female racial jokes telling her or asking her, “How do you get a black man off of a tree?” And she pretended like she didn’t know what he was asking and he said, “You wave, because black people are so dumb they wouldn’t know otherwise.” And when she cried and when she was in pain and she tried to tell him that she was because of what he was doing, he taunted her and said, “No, you are not in pain because black men have big dicks and I am just a white man.” And when he put his penis in her mouth and she, of course, complained, he told her, “Black women love deep-throating.” So, this isn’t a rape about sex . . . [i]t is about controlling a person that he feels is beneath him.
Appellant did not object during the opening statement. Later, when S.T., Healy, and Officer Steven Koll testified about these statements, appellant again failed to object.
Finally, during closing argument, the prosecutor stated that throughout the rape, appellant told S.T. “racial jokes” and he “demeaned her with these jokes.” The prosecutor also stated that S.T. “believed that [appellant] would kill her if she didn’t do what he said” and that he told her, “Well, no one will miss you because no one will miss a [n---er].” The prosecutor also recalled S.T.’s testimony, also mentioned in the opening, that S.T. would not have felt pain. Again, appellant failed to object to these statements. But later, when the prosecutor stated that appellant “does not want to be accountable nor does he even think it is rape to rape a black woman,” appellant’s objection was sustained.
We conclude that while some of the prosecutor’s comments are questionable, the statements to which appellant consistently failed to object do not constitute plain error. The state offered this evidence to properly establish that appellant had a motive to commit the crime because a motive lends credibility to the state’s case and helps the jury form inferences from the circumstantial evidence presented. See State v. Berndt, 392 N.W.2d 876, 879 (Minn. 1986); State v. Anderson, 379 N.W.2d 70, 77 (Minn. 1985). Furthermore, because a proper closing argument focuses on the evidence and reasonable inferences drawn from the evidence, State v. DeWald, 463 N.W.2d 741, 744 (Minn. 1990), and the evidence at trial established that appellant made the racist statements, the prosecutor did not commit misconduct by discussing those statements in closing. Cf. State v. Rose, 353 N.W.2d 565, 569 (Minn. App. 1984) (concluding that where record established that 13-year-old rape victim suffered and will continue to suffer long-lasting mental anguish, prosecutor’s argument pertaining to her mental anguish was fair comment on evidence), review denied (Minn. Sept. 12, 1984).
Although the prosecutor’s statement that appellant “does not want to be accountable nor does he even think it is rape to rape a black woman” was misconduct because it was based on facts not in evidence, appellant’s objection was sustained. The impact of the statement was minimal because the statement was made only once, see State v. McDaniel, 534 N.W.2d 290, 294 (Minn. App. 1995) (noting any misconduct must be viewed in the context of the whole trial), review denied (Minn. Sept. 20, 1995), the jury was instructed at the beginning and close of trial that the statements of attorneys were not evidence, see State v. Washington, 521 N.W.2d 35, 40 (Minn. 1994) (stating that instructions are relevant to determining influence of comments), and the evidence of appellant’s guilt was strong regardless of the statement. See State v. Morgan, 477 N.W.2d 527, 531 (Minn. App. 1991) (recognizing that where there is more than adequate evidence of guilt without prosecutor’s comments, new trial is not warranted), review denied (Minn. Jan. 17, 1992). Thus, even though the statement constituted misconduct, we conclude that the error was harmless beyond a reasonable doubt.
B. Injection of emotion and sympathy into case.
Appellant also argues that the prosecutor improperly injected emotion and sympathy for the victim into the case. First, appellant argues that it was improper for Healy to testify about S.T.’s description of the rape, about the injuries S.T. sustained, and about the photographs depicting those injuries. Appellant argues that the “repetition of the details of [S.T.’s] injuries was gratuitous” and that the testimony improperly “encourag[ed] the jury to sympathize with [S.T.].” But this argument is without merit, as the evidence was relevant and necessary to establish that S.T.’s account of what happened was credible. Furthermore, any argument that the evidence was unduly repetitious is undercut by the fact that appellant failed to object at trial.
Second, appellant argues that the prosecutor’s closing argument “unnecessarily emphasize[d] how unpleasant the sexual assault examination was for [S.T.].” The prosecutor stated:
You saw [S.T.’s] pain, you saw her humiliation and you will continue to see her humiliation. She had to go to the hospital and she had what she described as a Pap smear. It was an examination to determine her injuries. And while no woman enjoys that examination or a Pap smear, hers was further complicated by the fact that pictures of her most private areas were taken and you will get to see those pictures. You, strangers . . . will be privy to the most confidential and the most private areas of a woman, and that is humiliating and no woman would volunteer for that.
Later, the prosecutor stated:
[S.T.] has suffered a lot. Physically she has suffered, she has been injured, but as she testified, she also lost a job because of this, she is receiving professional help because of this. The injuries are enormous and she simply has nothing to gain by creating this – or by fabricating this.
Although “it is improper for a prosecutor to evoke sympathy for a victim,” State v. McNeil, 658 N.W.2d 228, 236 (Minn. App. 2003), we conclude that these arguments were made to demonstrate that S.T.’s testimony was credible, not simply to garner sympathy from the jury. And while it is improper for a prosecutor to “endorse” a witness’s credibility, Porter, 526 N.W.2d at 364, a prosecutor may argue as to the credibility of the witnesses. State v. Everett, 472 N.W.2d 864, 870 (Minn. 1991). For example, an attorney may point to circumstances that corroborate a witness’s testimony, so long as he or she does not inject a personal opinion of the witness’s credibility into the argument. State v. Ture, 353 N.W.2d 502, 516 (Minn. 1984). Here, the prosecutor’s comments pointed to evidence and reasonable inferences from the evidence that corroborated S.T.’s account of what happened and established that she was credible. Therefore, we conclude that the statements do not constitute misconduct.
C. Attack on appellant’s character.
Appellant next argues that the prosecutor treated him with contempt by improperly attacking his character and degrading him in front of the jury. First, appellant argues that it was improper for the prosecutor to cross-examine him about whether he was so nervous when he talked to police that he defecated in his pants. While we agree that this line of questioning was uncalled for, appellant failed to object at trial and the questioning does not constitute plain error.
Second, appellant argues that the prosecutor improperly attacked his character by suggesting that he believed it was necessary “to beat a woman for sex to be rape.” Improper character attacks may constitute prosecutorial misconduct if the prosecutor’s references to the defendant’s character have the potential for planting in the jurors’ minds a prejudicial belief from otherwise inadmissible evidence. State v. Buggs, 581 N.W.2d 329, 342 (Minn. 1998) State v. Ives, 568 N.W.2d 710, 713-15 (Minn. 1997). But a “prosecutor may draw reasonable inferences from the evidence produced at trial.” State v. Ashby, 567 N.W.2d 21, 28 (Minn. 1997); see also State v. Thompson, 544 N.W.2d 8, 11 (Minn. 1996) (stating that “because intent is a state of mind, it is generally proved by inferences drawn from a person’s words or actions in light of all the surrounding circumstances”).
Here, the prosecutor’s line of questioning was based on appellant’s own prior statement to police that “[t]here was like . . . no, she wasn’t beaten or nothing like that. No rape or nothing like that,” which was admitted into evidence. The line of questioning was relevant to appellant’s intent and state of mind during the commission of the crime, and it goes toward establishing his credibility. Furthermore, appellant admitted on redirect that “the only way you can rape someone . . . [is to] force somebody into it, like beat her up or threaten [her] or something.” We conclude that the prosecutor’s questions do not constitute misconduct.
D. Attack on credibility of defense witnesses.
Appellant next argues that the prosecutor improperly offered her personal opinion on the veracity of appellant and other defense witnesses by insinuating that they were lying. During closing argument, the prosecutor stated:
Now let’s look at the defense witnesses and witnesses that have a reason to lie. Now, bear in mind that the State didn’t call [S.T.’s] relatives or father or sister or bouncer that lets him into the bar when he is 19. The State called witnesses who could corroborate testimony given by [S.T.] through physical evidence. But you heard from Mark Peterson, the bouncer, who described the defendant making out with a black girl. And in a stereotypical fashion, he described her with braids. Well, [S.T.] does not have braids and [she] does not weigh 120 pounds like he described her and she is not small and she is not five feet six the way he described. Clearly, someone didn’t feed him the information they were supposed to.
Appellant’s objection to the last sentence was sustained. Later, the prosecutor stated:
The defendant’s dad testified and he . . . denied making statements to Officer Corcoran on May 31st. Officer Corcoran testified that on May 31st when [s]he went over . . . to the residence Steven Hakala told her that the defendant had arrived at home by 12:15 and was home with his girlfriend, a girl by the name of Jenny. And Officer Corcoran asked the defendant’s father the race of Jenny and he indicated a white female. Now, on the stand he denied making these statements on May 31st. But once again, Officer Corcoran had no way of knowing that the defendant even had a girlfriend named Jenny. She had absolutely no way of knowing that unless the defendant’s father told her so. And she had no way of knowing the race of this individual. . . . When he was interviewed by the defense investigator on June 13th, the defendant’s father indicated that he didn’t get a good look at the girl that came over and that he would not be able to identify her but knew it was a girl because of the voice. So already he is beginning to change his story to assist his son. And it wasn’t until trial that he was able to miraculously remember that the girl was black and that she was a bigger girl and that she weighed about 180 pounds. So you have three different versions, each of them different and each of them clearly designed – or the last one clearly designed, rather, to assist his son.
Again, appellant objected to the last sentence, but the district court concluded that it was a reasonable inference and overruled the objection.
The prosecutor’s statement that “[c]learly, someone didn’t feed [Mark Peterson] the information they were supposed to” was improper, and the district court properly sustained the objection. But in cases where the prosecutor has expressed a personal opinion of the veracity of witnesses, the supreme court has held that such statements are harmless where the district court cautioned the jury to consider only the evidence, where the evidence of guilt was adequate, and where the prosecutor’s argument was otherwise proper. Ture, 353 N.W.2d at 517 (citations omitted). Because these same circumstances exist here, we conclude that the error is harmless beyond a reasonable doubt.
With regard to the prosecutor’s statements concerning Steven Hakala, the record indicates that those statements were based on reasonable inferences from the evidence, the prosecutor did not state a personal opinion on Hakala’s veracity, and the prosecutor did not specifically state that he was “lying.” Cf. id. at 516 (finding endorsement of state’s witnesses’ credibility and personal opinion of defendant improper); State v. Duncan, 608 N.W.2d 551, 555 (Minn. App. 2000) (finding prosecutor’s statements that defendant was “lying” clearly crossed the line), review denied (Minn. May 16, 2000). Therefore, we conclude that the statements do not constitute misconduct.
In sum, because any prosecutorial misconduct identified by appellant was harmless beyond a reasonable doubt, we conclude that appellant is not entitled to a new trial. See Gates, 615 N.W.2d at 340.
Finally, appellant argues that the district court improperly imposed a sentence of 288 months, a double upward departure from the presumptive sentence of 144 months. As aggravating factors supporting the departure, the district court cited multiple forms of penetration, victim injury, particular cruelty, and racially inflammatory language.
After this appeal was filed, the United States Supreme Court issued its opinion in Blakely v. Washington, 124 S. Ct. 2531 (2004). In Blakely, the United States Supreme Court held that an upward durational sentencing departure violates a defendant’s right to a jury trial unless the facts upon which the departure was based were admitted by the defendant or found beyond a reasonable doubt by a jury. Id. at 2537. The Minnesota Supreme Court has affirmed the application of Blakely to the Minnesota sentencing guidelines. State v. Shattuck, 689 N.W.2d 785, 786 (Minn. 2004). New rules of federal constitutional procedure apply to matters pending on direct review when the rule is announced. O’Meara v. State, 679 N.W.2d 334, 339 (Minn. 2004).
Here, because the district court did not have the opportunity to consider the application of Blakely to appellant’s sentence, we remand for resentencing in accordance with Blakely. In light of this conclusion, we do not address whether the aggravating factors identified by the district court could properly support an upward durational departure under Taylor v. State, 670 N.W.2d 584 (Minn. 2003).
Affirmed in part, reversed in part and remanded.
* Retired judges of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI § 10.
 Although a napkin was recovered at the scene, it was later determined that the napkin did not contain D.N.A. matching either appellant or S.T. Police were not able to make a connection between appellant and the owners of the garage, nor were they able to locate the white pickup truck.
 Although corroboration can be required “if the evidence otherwise adduced is insufficient to sustain conviction,” this rule applies only where the complainant is a child, and therefore, it is not applicable here. See State v. Folley, 378 N.W.2d 21, 25 (Minn. App. 1985); see also State v. Myers, 359 N.W.2d 604, 608 (Minn. 1984); Cichon, 458 N.W.2d at 735;.