This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).






State of Minnesota,





Durrell Calvin Caldwell,



Filed August 22, 2006

Affirmed in part, reversed in part, and remanded

Dietzen, Judge


St. Louis County District Court

File No. K6-04-300907


Mike Hatch, Attorney General, Kelly O’Neill Moller, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and


Alan L. Mitchell, St. Louis County Attorney, 100 North Fifth Avenue West, Suite 501, Duluth, MN 55802 (for respondent)


John M. Stuart, State Public Defender, Jane E. Rydholm, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)


            Considered and decided by Dietzen, Presiding Judge; Stoneburner, Judge; and Parker, Judge.*

U N P U B L I S H E D   O P I N I O N




Appellant challenges his convictions of first-degree criminal sexual conduct, arguing that the district court erred (a) in determining that appellant was competent to stand trial; (b) in denying appellant’s motion for a change of venue; and (c) in admitting certain evidence during trial.  Appellant also asserts that the prosecutor committed misconduct denying appellant the right to fair trial and that the district court abused its discretion in sentencing appellant to a double upward departure.  We affirm in part, reverse in part, and remand for resentencing.



            In June 2003, the police responded to an emergency call that T.J., a female employee at Mesabi Academy, which is a correctional and rehabilitative facility for juveniles, had been sexually assaulted.  T.J. reported that while she was escorting appellant Durrell Calvin Caldwell, a resident at the facility, to his locker to retrieve some clothing, appellant blocked her exit from the locker room by stepping in front of her, grabbed her, placed her in a choke-hold, and raped her.   Appellant was 17 years old at the time.

            The state filed a juvenile delinquency petition charging appellant with sexual assault in violation of Minn. Stat. § 609.324, subd. 1(c), and moved to certify appellant for adult prosecution.  In July 2003, at the initial hearing on the motion for certification, appellant’s attorney moved for an order directing a mental examination of appellant’s competency under Minn. R. Juv. P. 20.01 and 20.02.  The court granted the motion, ordered a rule 20 evaluation, and stayed the motion for certification pending the resolution of the competency issue.

            In January 2004, the district court held a competency hearing.   Dr. Anita Schlank, who testified at the hearing, submitted a report, which stated that:  “[Appellant] does appear to have a basic understanding of the charges against him and the legal process, and has demonstrated that he is capable of providing information to his attorney that might be helpful for his defense in this case.”  Dr. Marty Beyer, who had previously conducted a “developmental assessment” of appellant in 2002 related to two previous sexual-assault charges brought against him, also testified.  In that circumstance, appellant pleaded guilty to two counts of sexual assault in Washington, D.C. brought against appellant in 2002.  The D.C. court found appellant incompetent and placed him at Mesabi Academy.  Dr. Beyer concluded that appellant was not competent to stand trial, stating that she did not “believe that he comprehends what is going on in court and I don’t believe that he is able to assist counsel in an informed way.” 

Following the hearing, the district court found that appellant was competent because he was capable of adequately participating with counsel to make the appropriate decisions relative to his defense.  The district court noted that appellant’s I.Q. in the low-to-mid 70 range was “borderline,” but that in his two years at Mesabi, appellant had made “substantial progress” in maturity and social development. 

Appellant was certified to stand trial as an adult on three counts of sexual assault in violation of Minn. Stat. §§ 609.342, subd. 1(c) (2002) (complainant has reasonable fear of imminent great bodily harm) (count one), 609.342, subd. 1(e)(i) (2002) (defendant causes personal injury and uses force/coercion) (count two), and 609.342, subd. 1(e)(ii) (2002) (count three) (defendant causes personal injury and knows or has reason to know the victim is physically helpless).  Appellant pleaded not guilty to the charges.

Before trial, appellant moved for a change of venue, arguing that “[i]n a community racially and ethically as homogeneous as that surrounding Hibbing, the trial of a transplanted African-American man for sexually assaulting a local Caucasian girl would be unavoidably biased, and as such, [appellant] will not receive a fair and impartial trial on the merits.”  Appellant requested that the venue be transferred to Duluth.  The district court denied the motion, observing that the 97.4% Caucasian demographic of Hibbing was not significantly different from the 92.7% Caucasian demographic of Duluth

            At trial, T.J. testified that after she escorted appellant to his locker at the Mesabi Academy, appellant starting “coming on to” her.  But she told him to “shut up” and “get your stuff and let’s go.”  As T.J. walked around appellant to the door, he came up from behind her, put his arm around her neck, and started to choke her.  T.J. then testified that she fell into a state of unconsciousness, and when she awakened, appellant was raping her.  She tried to push him off, but appellant told her to “shut the f-ck” up and said, “I’ll leave you up here dead, I don’t give a sh-t.”  When appellant stopped, he told her, “You better not f-ckin’ tell anybody.”

Emergency room nurse Mary Leinon testified that T.J. was hysterical, crying, and hyperventilating.  Dr. Neil Hoyal testified that T.J. was upset, anxious, crying, and visibly shaken.  Dr. Hoyal found bruises on the left side of appellant’s neck consistent with her neck having been in a choke-hold.  Police Investigator Joseph Zebro spoke with T.J. at the hospital, noted her various injuries and photographed them.  A sexual-assault examination performed on T.J. revealed semen that matched appellant’s DNA profile.

            During trial, the state moved to introduce evidence of appellant’s two prior sexual-assault convictions in Washington, D.C. The district court allowed the evidence, and the state then introduced testimony from N.H. and K.M., who described appellant’s sexual assaults against them.

Appellant testified that in the locker room, T.J. put her hands around his neck and began kissing him.  He backed away from her, but he eventually succumbed to her advances, and the two had consensual sex.  When appellant told her that he had hepatitis, she began yelling and crying.  He explained that earlier in the day, T.J. was “wrestling” with  him during a water fight, which may have caused injuries to her neck. 

The jury found appellant guilty of all three counts.  Appellant was sentenced to 288 months, a double durational departure.  This appeal follows.



            Appellant contends that the district court erred in determining that appellant was competent to stand trial.  On appeal, we independently review the record to decide whether the trial court gave “proper weight” to the evidenceIn re Welfare of D.D.N., 582 N.W.2d 278, 281 (Minn. App. 1998) (citing Drope v. Missouri, 420 U.S. 162, 179, 95 S. Ct. 896, 907 (1975)).

            “Under the Fifth and Fourteenth Amendment Due Process Clauses, a criminal defendant may not be tried and convicted unless the defendant is legally competent.”
State v. Camacho, 561 N.W.2d 160, 171 (Minn. 1997).  A child charged as delinquent has the same fundamental right as an adult defendant not to be tried or adjudicated while incompetent.  In re Welfare of S.W.T., 277 N.W.2d 507, 511 (Minn. 1979).  Rule 20.01 of the Minnesota Rules of Juvenile Procedure provides that a child shall not be permitted to enter a plea or be tried or sentenced for any offense if the child lacks sufficient ability to (1) consult with a reasonable degree of rational understanding with defense counsel; or (2) understand the proceedings or participate in the defense due to mental illness or mental deficiency.  Minn. R. Juv. Delinq. P. 20.01, subd. 1.

            Here, the district court concluded that Dr. Schlank’s testimony was more persuasive.  See, e.g., State v. Mills, 562 N.W.2d 276, 282 (Minn. 1997) (upholding district court’s determination of competency when two psychiatrists who testified as expert witnesses came to opposite conclusions on defendant’s ability to participate in defense).  Dr. Beyer, by her own admission, used a “real understanding” competency standard, which is different than the standard set forth in Minn. R. Juv. P. 20.01, subd. 1, i.e., the juvenile’s lack of ability to consult with a reasonable degree of rational understanding with defense counsel or to understand the proceedings or participate in the defense due to mental illness or mental deficiency.  In contrast, Dr. Schlank’s conclusion that appellant made substantial progress since his last trial and was competent was based on Minnesota’s competency standard.

Respondent argues that the district court’s competency determination should be upheld based on appellant’s clear and detailed testimony at trial.  Evidence of the defendant’s demeanor and behavior at trial is relevant to determining competency.  Camacho, 561 N.W.2d at 172; see also Mills, 562 N.W.2d at 283 (noting that the trial record indicates the appellant had a good relationship with defense counsel and did not engage in disruptive or inappropriate behavior during testimony).  Here, appellant testified at trial, was responsive to the questions asked, and gave a detailed description of the sexual encounter that supported his consent defense.  Based on our independent review of the record, the district court did not abuse its discretion.


Appellant next argues that the district court abused its discretion in denying appellant’s motion for a change of venue.  We will not reverse a district court’s denial of a motion for change of venue absent a clear abuse of discretion and actual prejudice to the defendant.  State v. Berkovitz, 705 N.W.2d 399, 408 (Minn. 2005).  An abuse of discretion occurs if the evidence is such that “a real possibility exists that a jury will not render an unprejudiced or unbiased verdict.”  State v. Webber, 292 N.W.2d 5, 12 (Minn. 1980) (quoting State v. Hogan, 297 Minn. 430, 437, 212 N.W.2d 664, 669 (1973)).  The Minnesota Rules of Criminal Procedure provide that venue may be transferred to another county if it is impossible to have a fair and impartial trial in the original county.  Minn. R. Crim. P. 24.03, subd. 1(a). 

            Appellant argues that he was prejudiced because there is “ample evidence that the community was prejudiced against African-Americans and this must have influenced the jury.”  But appellant does not show any actual prejudice on the part of jurors who served in his trial.  See Berkovitz, 705 N.W.2d at 408 (actual prejudice to appellant must be shown to overturn the district court’s decision not to grant a change in venue);
see alsoState v. Jones, 647 N.W.2d 540, 544 (Minn. App. 2002) (holding that the denial of a change of venue to a county with a greater percentage of minorities does not violate a minority defendant’s due process rights absent a showing of actual prejudice), rev’d on other grounds, 659 N.W.2d 748 (Minn. 2003).  Because appellant has not shown that he suffered actual prejudice resulting from the venue of his trial, the district court did not abuse its discretion.


Appellant contends that the district court abused its discretion in various evidentiary rulings.  “Evidentiary rulings rest within the sound discretion of the [district] court and will not be reversed absent a clear abuse of discretion.  On appeal, appellant has the burden of establishing that the [district] court abused its discretion and that appellant was thereby prejudiced.”  State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003) (citation omitted).

A.        Vouching

Appellant argues that the testimony of Nurse Leinon and Dr. Hoyal constituted improper vouching.  Nurse Leinon and Dr. Hoyal were allowed to testify, over appellant’s objection, that T.J.’s injuries, emotional state, and what she told them happened, were consistent with force being used against her.   

“Vouching” occurs when a witness testifies that another witness is telling the truth or that the witness believes one witness over the other.  See State v. Ferguson, 581 N.W.2d 824, 836 (Minn. 1998) (concluding that police officer did not vouch for another witness’ credibility because officer did not testify that other witness was telling the truth or that he believed the other witness).  A witness cannot vouch for or against the credibility of another witness.  Id. at 835 (noting that credibility of a witness is for the jury to decide); see also State v. Maurer, 491 N.W.2d 661, 662 (Minn. 1992) (“Generally, it is objectionable for the state on direct to elicit any opinion evidence as to the truthful character of a complainant in a [criminal sexual conduct] prosecution.”).  More specifically, we “reject expert opinion testimony regarding the truth or falsity of a witness’ allegations about a crime, for the expert’s status may lend an unwarranted stamp of scientific legitimacy to the allegations.”  State v. Myers, 359 N.W.2d 604, 611 (Minn. 1984) (quotation omitted).

Respondent argues that appellant has waived his vouching argument by failing to raise it before the district court.    Failure to object to the admission of evidence generally constitutes waiver of the right to appeal on that basis.  State v. Bauer, 598 N.W.2d 352, 363 (Minn. 1999).  Appellant did not object to this evidence on the grounds that it constituted improper vouching.  But an appellate court may consider a waived issue if there is (1) error; (2) that is plain; and (3) the error affects the defendant’s substantial rights.  State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998).  To satisfy the third prong, a defendant bears a “heavy burden” of persuasion to show that “the error was prejudicial and affected the outcome of the case.” Id. at 741.  If these three prongs are met, the appellate court must also decide whether it should address the error in order to “ensure fairness and the integrity of the judicial proceedings.”  Id. at 740.  “Only after all these factors are satisfied may we exercise our discretion to correct an unobjected-to error.”  Auringer v. State, 695 N.W.2d 640, 645 (Minn. App. 2005), review denied (Minn. July 19, 2005).

Here, neither witness testified that T.J. was telling the truth when she stated that appellant raped her.  Cf. Maurer, 491 N.W.2d at 662 (holding that witnesses’ opinions that complainant appeared “sincere” when she said she had been raped was vouching).  Instead, the testimony merely concluded that certain factors were consistent with force being used against T.J.  Such testimony does not constitute vouching.  See, e.g., State v. Jackson, 714 N.W.2d 681, 696 (Minn. 2006) (holding that statement was not vouching because “it did not purport to guarantee the credibility of a witness”).  Because it was not plain error to admit the testimony, we will not address the issue.

B.        Expert Testimony

            Appellant next argues that the district court abused its discretion in allowing Dr. Hoyal, Nurse Leinon, and police investigator Zebro to provide opinion testimony that T.J. had been sexually assaulted.  Appellant also argues that Dr. Hoyal testified in response to the question of why T.J. was at the emergency room, that “[S]he had been sexually assaulted.”

Expert testimony is admissible if it will assist the jury in understanding the evidence or in determining a fact in issue.  Minn. R. Evid. 702.  “[T]estimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.”  Minn. R. Evid. 704.  The supreme court “has not allowed ultimate conclusion testimony which embraces legal conclusions or terms of art.”  State v. Moore, 699 N.W.2d 733, 740 (Minn. 2005) (quotation omitted); see United States v. Azure, 801 F.2d 336, 340 (8th Cir. 1986) (concluding that an expert doctor does not vouch merely by summarizing the medical evidence and expressing an opinion as to whether it was consistent with a sexual abuse complainant’s story).  

Here, Dr. Hoyal, Nurse Leinon, and police investigator Zebro testified that, based on the physical evidence, her injuries were consistent with force being used against T.J.  And police investigator Zebro testified that T.J.’s injuries and emotional state were consistent with forced sex.  The opinion evidence was arguably helpful to assist the jury in determining the credibility of T.J.’s claim that she had been raped.  And Dr. Hoyal’s testimony that the reason T.J. came to the emergency room was that “she had been sexually assaulted” was provided at the beginning of his direct examination to explain how he became involved in her treatment.  On this record, the district court did not abuse its discretion.   

            Appellant relies on State v. Saldana, 324 N.W.2d 227, 230 n.5 (Minn. 1982), to argue that investigator Zebro’s testimony that T.J.’s injuries and emotional condition were consistent with forced sex was not admissible.  But unlike the doctor who testified in Saldana, investigator Zebro did not state a legal conclusion, i.e., that T.J. was “raped.”  Cf.  id. at 230-231 n.5 (holding that the doctor’s testimony that victim had been “raped” was “a legal conclusion which was of no use to the jury” but stating that an expert may “testify to observations of physical and emotional conditions”).  On this record, the district court did not abuse its discretion in admitting the testimony.

C.        Spreigl Evidence

Appellant contends that the district court abused its discretion in admitting Spreigl evidence of his prior sexual-assault convictions in Washington, D.C.  Evidence of other crimes or bad acts is characterized as “Spreigl evidence.”  State v. Kennedy, 585 N.W.2d 385, 389 (Minn. 1998).  Generally, Spreigl evidence is not admissible to prove that a criminal defendant acted in conformity with his character.  Minn. R. Evid. 404(b); State v. Spreigl, 272 Minn. 488, 490, 495-96, 139 N.W.2d 167, 169, 171-72 (1965).  But the evidence may be admissible to prove motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.  Minn. R. Evid. 404(b); Spreigl, 272 Minn. at 491, 139 N.W.2d at 169. 

The district court concluded that the evidence was relevant and material to determine modus operandi.  Evidence of prior sexual assaults may be relevant to show modus operandi and lack of consent.  See State v. DeBaere, 356 N.W.2d 301, 305 (Minn. 1984) (evidence of five previous assaults against other women admissible where it showed “a pattern of similar aggressive sexual behavior”).  Here, the similarities between the prior assaults and the subject assault were that all involved women in their 20s and that appellant isolated the women, used a headlock and/or choke hold to restrain them, and then vaginally penetrated them.  See State v. Blom, 682 N.W.2d 578, 612 (Minn. 2004) (noting that the Spreigl incident and the current offense were sufficiently similar because “[b]oth incidents [ ] involved subduing the women by applying force at their neck and throat areas”).  On this record, the district court did not abuse its discretion.

Appellant argues that the previous sexual assaults were not sufficiently probative because they were separated by three years.  But the Minnesota Supreme Court has “never held that there must be a close temporal relationship between the charged offense and the other crime.”  State v. Wermerskirchen, 497 N.W.2d 235, 242 n.3 (Minn. 1993); see also State v. Crocker, 409 N.W.2d 840, 843 (Minn. 1987) (upholding in a prosecution for rape the admission of evidence of a sexual assault occurring nine years earlier).

Appellant argues that the Spreigl evidence was unduly prejudicial because of the graphic detail given by the prior victims and police detective Dennis Williams.  But this detail was necessary to prove modus operandi, and the prejudicial effect of the testimony was minimized when the district court cautioned the jury three separate times not to convict him based on his prior crimes.  See, e.g., State v. Waukazo, 374 N.W.2d 563, 565 (Minn. App. 1985) (noting that “the [district] court guarded against undue prejudice by giving a cautionary instruction both before the Spreigl evidence was presented and with the final charge”), review denied (Minn. Nov. 1, 1985).  In closing argument, the prosecutor told the jurors that the Spreigl evidence was admissible “for the limited purpose of assisting you in determining whether or not the Defendant committed these acts with which he is charged.”  We conclude that the Spreigl evidence was not unduly prejudicial, and the district court did not abuse its discretion in admitting it.


Appellant argues that the prosecutor engaged in misconduct during closing argument.  This court will reverse a conviction due to prosecutorial misconduct at trial 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).  Except in cases involving unusually serious misconduct, reversal is only required when the misconduct substantially influenced the verdict.  State v. Steward, 645 N.W.2d 115, 121 (Minn. 2002).  “We look . . . at the closing argument as a whole, rather than just selective phrases or remarks that may be taken out of context or given undue prominence.”  State v. Walsh, 495 N.W.2d 602, 607 (Minn. 1993).

The prosecutor has “considerable latitude” in closing argument and is not required to make a “colorless argument.”  State v. Smith, 541 N.W.2d 584, 589 (Minn. 1996).  It is permissible for the prosecutor to anticipate the defense’s theory of the case and argue against it.  State v. Whittaker, 568 N.W.2d 440, 451 (Minn. 1997).  The prosecutor may not personally endorse the credibility of a witness or impliedly guarantee a witness’s truthfulness.  State v. Patterson, 577 N.W.2d 494, 497–98 (Minn. 1998).  In closing argument, however, the prosecutor may argue that certain witnesses were or were not credible.  State v. Lopez-Rios, 669 N.W.2d 603, 614 (Minn. 2003). 

Appellant alleges that the prosecutor’s “used sarcasm to demean and belittle” appellant’s version of the events as a “date,” “good time,” “beautiful time,” “affair,” and “wonderful relationship.”  But appellant did not object to these comments during trial.  Generally, a party waives any challenge to the alleged misconduct on appeal by failing to object or seek a cautionary instruction.  State v. Ture, 353 N.W.2d 502, 516 (Minn. 1984).  In that situation, this court will only grant relief if the misconduct was unduly prejudicial.  Whittaker, 568 N.W.2d at 450.[1]  Here, the prosecutor was simply contrasting appellant’s theory of the case that the sex was consensual with the state’s theory of the case.  And the prosecutor’s arguments were based on appellant’s testimony.

            Appellant also argues that the prosecutor’s comment, which was allowed over objection, that the water fight was “much ado about nothing” and that appellant “made it sound like the gun fight at the O.K. Corral” was improper.  Here, the prosecutor made this comment in anticipation of appellant’s argument that a water fight that occurred prior to the incident caused the injuries to T.J.’s neck.  It is permissible for a prosecutor to anticipate a defendant’s argument.  Whittaker, 568 N.W.2d at 451. 

            Appellant argues that the prosecutor committed misconduct by stating, over appellant’s objection: “The Defendant is raising the issue of consent.  What else can he raise in this particular case?  He can’t say it didn’t happen.”  But the prosecutor was merely pointing out that appellant’s only argument was that the sex was consensual.  Cf. State v. Salitros, 499 N.W.2d 815, 818 (Minn. 1993) (holding that it was improper for the prosecution to argue that the defense was making a standard argument made in “cases of this sort”).

Appellant argues that the prosecutor impermissibly vouched for T.J.’s credibility in arguing, over the defense’s objection, that T.J. “has to be the greatest actress in the entire world or she was a person who was sexually assaulted.”  But the prosecutor merely used the testimony of T.J.’s emotional state to argue that her testimony was credible. 

            Appellant next argues that the prosecutor improperly vouched for his own truthfulness in stating, over the defense’s objection: “Now in this particular case we have the Defendant who is telling you that he is the one telling you the truth and that there was [a] whole case of liars that came in here.”  But the prosecutor merely pointed out that appellant was the sole witness claiming that the sex was consensual and did not vouch for the truth of any particular prosecution witness or his own wisdom in charging the case.  Considering the whole of the prosecutor’s closing argument, the prosecutor’s comments did not impair appellant’s right to a fair trial.


            Appellant contends that the district court erred in sentencing appellant to an upward durational departure because the departure violated appellant’s Sixth Amendment right to a jury trial under Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004).  The appeal of appellant’s sentence under the Minnesota Sentencing Guidelines presents a constitutional issue, which this court reviews de novo.  State v. Robinson, 699 N.W.2d 790, 800 (Minn. App. 2005).

In Blakely, the United States Supreme Court held that the greatest sentence a district court can impose is “the maximum sentence solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.”  542 U.S. at 303, 124 S. Ct. at 2537 (emphasis omitted).  An upward durational departure from the presumptive sentence based on findings made by the district court violates the Sixth Amendment right to trial by jury.  Id.  The Minnesota Supreme Court has concluded that Blakely applies to sentences imposed under the Minnesota Sentencing Guidelines.  State v. Shattuck, 704 N.W.2d 131, 141 (Minn. 2005).

In sentencing appellant on count one, the district court departed from the presumptive 144-month sentence to a 288-month sentence based on T.J.’s “particular vulnerability” and the “particular cruelty” of the sexual assault.  But the jury did not make findings as to these factors.  Therefore, the district court erred in imposing the departure.

            But the state argues that the jury in essence made the necessary findings to enhance appellant’s sentence by convicting appellant of counts two and three.[2]  See Minn. Stat. §§ 609.342, subd. 1(e)(i) (sexual assault based on “coercion”), 609.342, subd. 1(e)(ii) (2002) (sexual assault based on “helplessness” of the victim).  But the Minnesota Supreme Court recently held that elements of a lesser-included offense cannot form the basis for an upward departure.  State v. Osborne, 715 N.W.2d 436, 447 (Minn. 2006). 

            Here, as in Osborne, appellant was not sentenced for his conviction of the lesser-included offenses.  See id.  And the lesser-included offenses did not encompass the findings required to support an upward departure as to count one, namely, that the sexual assault was against a victim who was “particularly vulnerable” or that the offense was “particularly cruel.” Therefore, we reverse and remand for resentencing in accordance with the requirements of Blakely and Shattuck.

            For the purposes of remand, we observe that the legislature has recently enacted significant new provisions for aggravated sentencing departures, including sentencing juries and bifurcated trials and that “these changes apply both prospectively and to resentencing hearings.” Shattuck, 704 N.W.2d at 148 n.17.  Minnesota Statutes now provide for bifurcated proceedings or the impaneling of a resentencing jury to determine whether aggravating factors support an aggravated departure consistent with BlakelySee Minn. Stat. § 244.10, subd. 5(c) (Supp. 2005).  Hence, the legislature has now provided for bifurcated trials, with sentencing juries, on remand.[3] 

            Appellant also argues that the district court erred by imposing a ten-year conditional-release term on his sentence.  Because we remand for resentencing, appellant’s conditional-release term must be based on whether a jury finds factors justifying a mandatory departure under Minn. Stat. § 609.109, subds. 6, 7 (2002).  Accordingly, we remand for determination of appellant’s conditional-release term based on the outcome of appellant’s sentencing on remand.

            Affirmed in part, reversed in part, and remanded.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[1] The state contends the “plain error” standard applies to appellant’s arguments about prosecutorial misconduct to which appellant did not object during trial.  Appellant, in his reply brief, contends that the misconduct should be reviewed to determine if its effect on the jury was “harmless beyond a reasonable doubt [and] if the verdict actually rendered was surely unattributable to the error.”  State v. Thompson, 578 N.W.2d 734, 743 (Minn. 1998) (quotation omitted).  The harmless-beyond-a-reasonable-doubt standard applies only to unusually serious misconduct.  State v. Caron, 300 Minn. 123, 127–28, 218 N.W.2d 197, 200 (1974).  We conclude that the misconduct alleged here would not rise to that level.

[2] For purposes of this decision, counts two and three are the lesser-included offenses.

[3] We note that the Minnesota Supreme Court is currently considering issues posed by application of Minn. Stat. § 244.10, subd. 5(c), to resentencings.  See Hankerson v. State, No. A06-168, accelerated review granted (Minn. Apr. 26, 2006).