This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).







State of Minnesota,





Charles Howard McCray, II,




Filed July 17, 2007

Klaphake, Judge


Stearns County District Court

File No. K9-05-4477



Lori Swanson, Attorney General, John B. Galus, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101-2134 (for respondent)


John M. Stuart, State Public Defender, Roy G. Spurbeck, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414; and


Mark D. Nyvold, Special Assistant State Public Defender, Suite W1610, 332 Minnesota Street, St. Paul, MN  55101 (for appellant)


            Considered and decided by Klaphake, Presiding Judge, Randall, Judge, and Willis, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant Charles McCray, II, was convicted by a jury of second-degree criminal sexual conduct under Minn. Stat. § 609.343, subd. 1(a) (2004), for sexually touching a seven-year-old girl.  He had also been charged with first-degree criminal sexual conduct based on a pretrial police interview of the child that indicated sexual penetration had occurred.  When the child’s trial testimony did not support a finding of penetration, the district court dismissed the first-degree charge and instructed the attorneys not to address this issue further.  The prosecutor nevertheless made repeated references to the issue of penetration during closing arguments, which appellant claims constitutes prosecutorial misconduct that mandates a new trial.  We agree and reverse.


            “The prosecutor is an officer of the court charged with the affirmative obligation to achieve justice and fair adjudication, not merely convictions.”  State v. Fields, 730 N.W.2d 777, 782, (Minn. 2007).  A prosecutor may commit misconduct by engaging in acts that “undermin[e] the fairness of a trial,” or “violat[e] . . . clear or established standards of conduct, e.g., rules, laws, orders by a district court, or clear commands in this state’s case law.”  Id.  The prosecutor “must avoid inflaming the jury’s passions and prejudices against the defendant.”  State v. MacLennan, 702 N.W.2d 219, 235 (Minn. 2005) (quotation omitted). 

            The district court is in the best position to evaluate the effect of prosecutorial misconduct.  State v. Steward, 645 N.W.2d 115, 121 (Minn. 2002).  A district court’s decision denying a claim of prosecutorial misconduct should be reversed only when, in view of the whole record, the misconduct is so inexcusable, serious, and prejudicial that it denies the defendant the right to a fair trial.  State v. Scruggs, 421 N.W.2d 707, 716 (Minn.1988). 

            Appellant contends that the test for review of cases involving unusually serious prosecutorial misconduct, where the state must prove beyond a reasonable doubt that the misconduct was harmless, should apply here.  See State v. Caron, 300 Minn. 123, 127-28, 218 N.W.2d 197, 200 (1974).  Caron held that for cases involving “less serious” prosecutorial misconduct, the test is “whether the misconduct likely played a substantial part in influencing the jury to convict.”  Id.  The supreme court recently rejected the approach set forth in Caron for cases involving unobjected-to misconduct in favor of a plain error test, but the court left “for another day the question of whether the Caron two-tiered approach should continue to apply to cases involving objected-to prosecutorial misconduct.”  State v. Ramey, 721 N.W.2d 294, 299 n.4 (Minn. 2006). 

            In the earlier cases of State v. Mayhorn, 720 N.W.2d 776 (Minn. 2006), and State v. Swanson, 707 N.W.2d 645 (Minn. 2006), however, the supreme court streamlined the Caron approach by structuring the analysis of objected-to misconduct to a single inquiry, as follows:

If the state has engaged in misconduct, the defendant will not be granted a new trial if the misconduct is harmless beyond a reasonable doubt.  We will find an error to be harmless beyond a reasonble doubt only if the verdict rendered was surely unattributable to the error.


Mayhorn, 720 N.W.2d at 785 (quoting Swanson, 707 N.W.2d at 658) (emphasis omitted).

            Respondent argues that the prosecutor was not prohibited from addressing the issue of penetration during closing arguments because the district court’s instruction to refrain from discussing penetration was in the context of its dismissal of the first-degree charge, and therefore the instruction did not expressly prohibit other arguments about evidence of penetration.[1]  Respondent contends that the prosecutor needed to bolster the victim’s credibility because the discrepancy between her trial testimony and her police statement put her credibility at issue.  See State v. Dupay, 405 N.W.2d 444, 450 (Minn. App. 1987) (generally permitting counsel to attack witness’s credibility).  Respondent argues that the prosecutor’s statements did not constitute misconduct because they were permissible to reconcile the differing versions of the sexual assault offered by the victim in a manner favorable to the prosecution’s theory of the case.  See State v. Smith, 541 N.W.2d 584, 589 (Minn. 1996) (noting that prosecutor has “right to present to the jury all legitimate arguments on the evidence, to analyze and explain the evidence, and to present all proper inferences to be drawn therefrom”). 

           The prosecutor’s comments, however, violated the district court’s instruction, were highly prejudicial, and unfairly permeated the trial.  The prosecutor made a lengthy argument regarding penetration; the trial transcript shows that the prosecutor made specific and involved arguments about penetration during four pages of his 33-page closing argument.  The prejudice here is that the jury may have convicted appellant of second-degree criminal sexual conduct based on the repeated and improper references to more serious, uncharged conduct.  Further, the prosecutor had the opportunity during the victim’s testimony to elicit evidence on penetration and to point out inconsistencies in her testimony, and his failure to do so should not permit the prosecutor to ignore the district court’s directive and to improperly raise an issue that was so prejudicial to the defendant.  See Fields, 730 N.W.2d at 782 (prosecutor may not ignore court orders or case law).        

            While the prosecutor had a seemingly innocent explanation for his prejudicial statements, other factors also demonstrate that the misconduct denied appellant the right to a fair trial.  Looking at the argument as a whole, the prosecutor’s statements improperly emphasized the issue of penetration.  See State v. Walsh, 495 N.W.2d 602, 607 (Minn. 1993) (“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.”).  Further, the evidence of guilt was not overwhelming in this case.  There were no other witnesses or medical evidence to corroborate the seven-year-old victim’s version of the facts, and her testimony at trial was abbreviated; this evidence was opposed by appellant, who denied that he sexually assaulted the victim.  Finally, while the courts of this state have attempted to address and curtail “the problem of recurrent prosecutorial misconduct,” our supreme court recently noted that this problem persists.  See Ramey,721 N.W.2d at 301.  Under these circumstances, we conclude that appellant’s conviction must be reversed because the misconduct prejudiced appellant’s right to a fair trial and the verdict rendered was not “surely unattributable to the error.”  Mayhorn, 720 N.W.2d at 785; Swanson, 707 N.W.2d at 658; see State v. White, 295 Minn. 217, 225, 203 N.W.2d 852, 858 (1973) (“Justice does not demand an error-free trial . . . the crucial inquiry is whether, considering the record as a whole, the error was prejudicial to the result.”). 





[1] During trial, and in response to the defense motion to dismiss the first-degree count of criminal sexual conduct, the district court instructed the jury about its resolution of the penetration issue as a matter of law and told them that “it is irrelevant to your eventual decision relating to the issues presented to you in this case.”  The district court did not further instruct the jury on this issue.