This opinion will be unpublished and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

C6-96-34

State of Minnesota,

Respondent,

vs.

Jerome NMN Clark,

Appellant.

Filed November 5, 1996

Affirmed

Norton, Judge

Hennepin County District Court

File No. 95049650

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

Michael O. Freeman, Hennepin County Attorney, Michael Richardson, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for Respondent)

John M. Stuart, State Public Defender, Bradford S. Delapena, Assistant Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN 55414 (for Appellant)

Considered and decided by Schumacher, Presiding Judge, Norton, Judge, and Harten, Judge.

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

NORTON, Judge

In this direct appeal, Jerome Clark claims this court must reverse his conviction of kidnapping and second-degree assault because the prosecutor committed misconduct during closing argument. Reversal of the conviction is not warranted, because the prosecutor's comment was not meant to inflame the jury's passion and because appellant's trial counsel did not object but instead chose to counterargue in his closing argument. We affirm.

FACTS

Christopher Missling and his girlfriend, Kham Phangluangmlay, were driving up Emerson Avenue at about 6:00 p.m. to visit a friend in North Minneapolis when appellant ran in front of the car and pointed a gun at Missling, causing him to stop. Appellant pulled Phangluangmlay from the passenger seat and got into the car.

According to Missling, appellant demanded at gunpoint that he drive to an apartment building at 44th and Humboldt. Appellant then took Missling's keys and escorted him into a ground-floor apartment, where appellant and another man talked and drank liquor for 20-30 minutes. Appellant then drove Missling to visit appellant's girlfriend, Janell Steffens, in a duplex on 50th and Humboldt. At the duplex, appellant had his gun in his pocket and stayed close to Missling. Although appellant briefly left Missling's side to go upstairs to the bathroom, Missling said he did not attempt to escape, because he believed it would be too risky.

Appellant eventually drove Missling back to the apartment building at 44th and Humboldt, where they remained in the parking lot while appellant talked to two men. Appellant then drove Missling back to the duplex and Steffens joined them in the car at about 10:00 p.m. Appellant drove the three back to the apartment at 44th and Humboldt, got out of the car with Steffens, and apologized to Missling for having involved him in his affairs. He told Missling he could go and asked him not to call the police.

Missling drove south on Lyndale Avenue toward Broadway, spotted two police cars involved in a traffic stop, and reported what had just happened to him. The police arrested appellant when he and Steffens returned to the duplex. The police were unable to find the gun appellant allegedly used to kidnap Missling.

Appellant was charged with kidnapping and assault in the second degree. At trial, the prosecutor stated to the jury in closing argument:

[P]ut yourself in the situation of Mr. Missling. You have just been basically, commandeered, if I can call it, illegally by somebody in North Minneapolis and he forces you to drive in North Minneapolis to all these other peoples' houses, and you go in there and he's got a gun and you know it.

What are you going to do? Are you going to say, hey, I've been kidnapped? I mean, he's not taking you to the police station or your friend's house, he's taking you to his friends. He has no idea what's going on here, he's safe and alive and breathing to this point and does he really want to upset the apple cart, so to speak, and cause this man who he knows nothing, really, to do something drastic? * * *

[A]s time goes on they get to talking and I think they call that that hostage mentality, sooner or later you get to know the person who's holding you hostage in some respect, and some people even get to like each other.

I don't know if that happened here, but he's got to play that game with this man and if that means tolerating him, let him drive his car like he did * * *.

D E C I S I O N

Appellant did not object to the prosecutor's closing argument at trial, but instead counterargued in his closing statement. Appellant now contends, for the first time on appeal, that the prosecutor's remarks constituted misconduct. A defense counsel's failure to object suggests that the defense did not find any fault with the prosecutor's closing argument and provides "a basis for concluding that this issue should be deemed forfeited." State v. Marquetti, 322 N.W.2d 316, 318 (Minn. 1982). Appellant notes that this court may nevertheless consider "errors in the fundamental law or plain errors affecting substantial rights even in the absence of an objection by counsel at trial." Minn. R. Evid. 103(d), cited in State v. Salitros, 499 N.W.2d 815, 820 (Minn. 1993). Generally, such an error must be prejudicial in order to constitute grounds for reversal. Salitros, 499 N.W.2d at 202.

The prosecutor's statement - "[P]ut yourself in the situation of Mr. Missling" was improper. See State v. Thaggard, 527 N.W.2d 804, 812 (Minn. 1995) ("[i]t is improper to ask the jurors directly to put themselves in the victim's shoes"). Plain error occurs, however, only when an argument is "made in a way calculated to cause the jury to decide the case on the basis of passion rather than reason." State v. Johnson, 324 N.W.2d 199, 202 (Minn. 1982); see also I ABA Standards for Criminal Justice, The Prosecutorial Function, 3-5, 8 (2d ed. 1979) ("prosecutor should not use arguments calculated to inflame the passions or prejudices of the jury"). Here, the prosecutor was not appealing to the "passions" of the jurors, but rather was using a rhetorical device to demonstrate that a reasonable person in Missling's circumstances would have "played along" with his kidnapper and that Missling was acting reasonably in doing so. The prosecutor made this argument in anticipation of the defense argument.

In Minnesota, because prosecutors argue first, they are entitled to "reasonably" anticipate and preemptively rebut arguments they believe the defense will make in its closing argument. Salitros, 499 N.W.2d at 818. The prosecutor made the objected-to statements in explanation of his previous statement to the jury, "Now I'm sure you're going to hear, well, four hours is a long time, why didn't the guy run?" The prosecutor's preemptive rebuttal argument was reasonable, since defense counsel made the anticipated argument in his closing statement.

Although the prosecutor's direction to the jury to "put yourself in the situation" of Missling was improper, we hold that, when viewed in context, the prosecutor's comment is not prejudicial error.

Affirmed.