This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. ' 480A.08, subd. 3 (1994).

STATE OF MINNESOTA
IN COURT OF APPEALS
C8-95-1577

State of Minnesota,
Respondent,

vs.

Earic Johnson,
Appellant.

Filed July 23, 1996
Affirmed

Norton, Judge

Martin County District Court
File No. K1-94-677

Hubert H. Humphrey III, Attorney General, Robert A. Stanich, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for Respondent)

Joel R. Welder, Special Assistant Martin County Attorney, 1120 Giant Drive, PO Box 5, Blue Earth, MN 56013 (for Respondent)

John M. Stuart, State Public Defender, Rochelle R. Winn, Assistant Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN 55414 (for Appellant)

Considered and decided by Peterson, Presiding Judge, Norton, Judge, and Holtan, Judge.*

U N P U B L I S H E D O P I N I O N

NORTON, Judge

Appellant contends the prosecutor's remarks during closing argument deprived him of a fair trial and require reversal of his conviction and remand for a new trial. Although the prosecutor's comments were improper, they did not constitute serious misconduct to warrant reversal. We affirm.

FACTS

Appellant Earic Johnson was brought to trial for first-degree criminal sexual conduct in violation of Minn. Stat. '' 609.342, subd. 1(c) (1994). Appellant testified on his own behalf at trial and admitted that he had had sex with the complainant, E.P., but contended it had been consensual. He claimed that he never hit or choked her. On direct and cross-examination, appellant admitted to a prior conviction of third-degree criminal sexual conduct in 1989. Appellant also testified that he had spent five to six months in a halfway house for cocaine addiction and chemical abuse treatment.

In closing argument, the prosecutor criticized appellant's defense of consent and called attention to his prior history of chemical abuse and sexual misconduct. Defense counsel did not object to these remarks, but did rebut the comments during his closing argument.

The jury found appellant guilty of first-degree criminal sexual conduct. The trial court sentenced appellant to an executed term of 103 months in prison and ordered him to pay a $500 fine.

D E C I S I O N

Prosecutorial misconduct

Appellant alleges the prosecutor's closing remarks constituted prejudicial misconduct. Appellant waived this argument, because he failed to object or seek cautionary instructions, but instead responded to the remarks in his closing argument. See State v. James, 520 N.W.2d 399, 405 (Minn. 1994) (waiver occurs when defendant fails to object or seek instructions); State v. Whisonant, 331 N.W.2d 766, 769 (Minn. 1983) (finding waiver when defendant failed to object, but addressed remarks in closing argument). "[T]his court can reverse a conviction even when defendant failed to preserve the issue on appeal," however, "if the prosecution's comments are unduly prejudicial." James, 520 N.W.2d at 405 (quoting State v. Parker, 353 N.W.2d 122, 128 (Minn. 1984)). Because appellant seeks relief based on the alleged prejudice that resulted from the prosecutor's remarks, we will address this issue.

Appellant challenges the prosecutor's remarks regarding appellant's prior drug and alcohol usage and his casual attitude toward sex, contending the remarks were improper when he had not placed his character in issue. A prosecutor may not attack the defendant's character in closing argument when the defendant has not put it in issue. State v. Washington, 521 N.W.2d 35, 39 (Minn. 1994); see also Minn. R. Evid. 404(a) (character evidence generally not admissible to prove certain actions conformed with it). The full context of each of the prosecutor's remarks and the closing argument as a whole suggests that the prosecutor used appellant's admissions of sexual misconduct and drug addiction to demonstrate his lack of credibility and veracity as a witness, not to suggest that the current charges were a product of his acting in conformity with his prior conduct. See State v. Daniels, 332 N.W.2d 172, 180 (Minn. 1983) (when examining alleged prosecutorial misconduct, court must examine prosecutor's closing argument in its entirety); cf. State v. Atkins, 543 N.W.2d 642, 649 (Minn. 1996) (holding that references to defendant's "character" in closing argument did not violate Minn. R. Evid. 404, because, when read in context, they showed defendant's intent and knowledge to commit crime; they were not meant to show defendant acted in conformity with his prior conduct). We conclude these remarks did not constitute misconduct.

Appellant also contends the prosecutor belittled his consent defense. A prosecutor 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. Williams, 525 N.W.2d 538, 548-49 (Minn. 1994); State v. Salitros, 499 N.W.2d 815, 818 (Minn. 1993). Nor may the prosecutor charge the jury to teach all defendants a lesson or make a statement to the public through its verdict. Salitros, 499 N.W.2d at 819.

The prosecutor commented: "The defendant was had, and he knew it. He had to claim that there was consent." The prosecutor continued on this line of argument:

Well, because there is this [DNA] match, Ladies and Gentlemen, [appellant] had to admit penetration. He had to. He had to come up with something else. It is this so-called consent theory.

We view these statements as misconduct, because they resemble the "[t]hat's the sort of defense that defendants raise when nothing else will work" remark that the court held improper in Williams, 525 N.W.2d at 549.

Appellant may receive a new trial only if that misconduct deprived him of a fair trial. Atkins, 543 N.W.2d at 647-48. In cases such as this one, involving less serious prosecutorial misconduct, we must consider "whether the misconduct likely played a substantial part in influencing the jury to convict." State v. Caron, 300 Minn. 123, 128, 218 N.W.2d 197, 200 (1974); see also Washington, 521 N.W.2d at 40 (holding prosecutor's remarks about defendant's character to be "less serious misconduct"). The court considers several factors when determining whether misconduct was prejudicial: the prosecutor's argument as a whole, defense counsel's response to the prosecutor's remarks, the jury instructions, the strength of the evidence against the defendant, and the verdict. Washington, 521 N.W.2d at 40.

As we have already discussed, the prosecutor's closing argument as a whole attacked appellant's credibility and minimized any effect of the improper remarks. Defense counsel's decision not to object or seek a curative instruction weighs heavily in our decision not to reverse, "because the trial court might have been able to `ameliorate the effect of improper prosecutorial argument.'" Id. (quoting State v. Brown, 348 N.W.2d 743, 747 (Minn. 1984)). In addition, he took the opportunity to counter the prosecutor's remarks in his closing argument before the jury deliberated. Defense counsel's remarks cured any possible effect from the prosecutor's remarks.

The trial court's instructions to the jury also reduced the likelihood of prejudice. In addition to the standard cautionary instructions, the court told the jury:

In the case of [appellant], you must be especially careful to consider any previous conviction only as it may affect his credibility. You must not consider any previous conviction as evidence of guilt of the offense for which he is on trial here.

Further, the record contains very strong evidence against appellant and his consent defense. See Washington, 521 N.W.2d at 40 (court may consider strength of other evidence against defendant when determining if improper comments influenced jury). The evidence here contains appellant's admission that he engaged in sexual intercourse with the victim. Scientific evidence confirmed it. The victim testified that appellant forced himself upon her, beat her, and raped her while keeping her in fear of her life. A friend, who had met the victim on the street shortly after the rape, testified that the victim was upset, disturbed, and crying. The first thing she said was, "I just got raped." He also witnessed a goose egg-sized bump on the back of her head, abrasions on the bridge of her nose, and bruises on her arms. The prosecution presented medical testimony from the doctors who treated the victim at the hospital. The treating doctor described the victim as "extremely distraught, crying" and "obviously * * * physically harmed." The doctor testified to the victim's bruises and to the account of the sexual assault as the victim had reported it immediately after it happened. The doctor testified that the victim had bruises on her neck that were consistent with her having been choked and bruises on her forearms, her head, and her legs. Given this evidence in the record, the guilty verdict alone does not prove that the prosecutor's improper remarks prejudiced appellant. On the contrary, this evidence defeated appellant's consent defense and supports the guilty verdict.

Our review of all of these factors leads us to the conclusion that the prosecutor's remarks did not substantially prejudice the jury against appellant.

Motion to strike

The state brought a motion to strike appellant's pro se brief and appendix, because it was untimely filed and contains matters outside the appellate record. We have accepted appellant's pro se brief and have considered it in reaching our decision. His appendix, however, contains documents that were not in the trial court record. See Minn. R. Civ. App. P. 110.01 (record on appeal includes papers filed in trial court, exhibits, and any transcripts). Consequently, we have not considered those documents in reaching our decision on the merits of this appeal. The state's motion to strike appellant's pro se appendix is granted.

Affirmed.


Footnotes

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