Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Norman Frank Loidolt,
Filed June 16, 1998
Morrison County District Court
File No. K4961241
Conrad I. Freeberg, Morrison County Attorney, Sam Douglas Young, Assistant County Attorney, Morrison County Government Center, 213 S.E. First Avenue, Little Falls, MN 56345 (for respondent)
Eric L. Newmark, Birrell, Dunlap & Ritts, 2450 Park Avenue, Minneapolis, MN 55404 (for appellant)
*Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.
Considered and decided by Lansing, Presiding Judge, Klaphake, Judge, and Holtan, Judge.
U N P U B L I S H E D O P I N I O N
Appellant Norman Loidolt challenges his conviction for criminal sexual conduct in the fifth degree, arguing that the prosecutor's argument to the jury was misconduct requiring a new trial. Because any misconduct by the prosecutor was harmless error, we affirm.
D E C I S I O N
[I]n cases involving unusually serious prosecutorial misconduct this court has required certainty beyond a reasonable doubt that the misconduct was harmless before affirming. * * * On the other hand, in cases involving less serious prosecutorial misconduct this court has applied the test of whether the misconduct likely played a substantial part in influencing the jury to convict.
Id. Only the prosecutor's argument to the jury to "Help me stop [appellant] before he goes too far," was misconduct. See State v. Porter, 526 N.W.2d 359, 364-65 (Minn. 1995) (holding statements suggesting negative consequences of acquittal were misconduct). This single misstatement in the context of the prosecutor's overall argument was less serious misconduct. See State v. Ture, 353 N.W.2d 502, 517 (Minn. 1984) (isolated comments analyzed under standard for less serious misconduct). Accordingly, we apply the "substantial part in influencing the jury" standard to determine if the misconduct was harmless error. Caron, 300 Minn. at 127, 218 N.W.2d at 200.
When determining the impact misconduct has on a jury verdict, courts consider the strength of the evidence and the trial court's instructions. State v. Washington, 521 N.W.2d 35, 40 (Minn. 1994); Ture, 353 N.W.2d at 517. A person who engages in nonconsensual sexual contact is guilty of criminal sexual conduct in the fifth degree. Minn. Stat. § 609.3451 (1996). Sexual contact includes the intentional touching of the clothing covering a person's intimate parts. Minn. Stat. § 609.341, subd. 11(a) (1996). Here, the weight of the evidence is more than adequate to convince this court that the verdict is not attributable to the misconduct. See State v. Starkey, 516 N.W.2d 918, 927 (Minn. 1994). Further, the trial court instructed the jurors that they were not to consider the consequences of their verdict. Under these circumstances, we hold that the prosecutor's misconduct was harmless error.