This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).


State of Minnesota,


Jose Maria Rincon,

Filed July 13, 1999
Davies, Judge

Polk County District Court
File No. K9971621

Mike Hatch, Attorney General, Kelly O'Neill Moller, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota St., St. Paul, MN 55101-2131 (for respondent)

Wayne H. Swanson, Polk County Attorney, Crookston Professional Center, 223 East Seventh St., Suite 101, Crookston, MN 56716 (for respondent)

John M. Stuart, State Public Defender, Cathryn Middlebrook, Assistant State Public Defender, 2829 University Ave. S.E., Suite 600, Minneapolis, MN 55414 (for appellant)

Considered and decided by Davies, Presiding Judge, Randall, Judge, and Anderson, Judge.

U N P U B L I S H E D   O P I N I O N


Appellant challenges his conviction for third-degree criminal sexual conduct, arguing (1) that the trial court admitted prejudicial character evidence and (2) that the prosecutor committed misconduct. We affirm.


In May 1997, during the East Grand Forks flood, appellant Jose Maria Rincon met Toni Swann at a shelter. Later that summer, appellant asked Swann to give him a ride to a friend's house, and she agreed. En route, appellant asked Swann to stop the car. Appellant then began to fondle Swann. She resisted, but eventually appellant was able to pull off her shorts and underwear. Despite Swann's repeated requests to stop, appellant had vaginal and anal intercourse with Swann.

When questioned by the police, appellant initially denied any relationship with Swann. Appellant later admitted having sex with Swann but claimed it was consensual. Appellant was charged with first- and third-degree criminal sexual conduct.

A jury acquitted appellant of the first-degree charge but found him guilty of third-degree criminal sexual conduct. The court sentenced him to an 88-month (7 years, 4 months) executed sentence. This appeal follows.


I. Admission of Character Evidence

Evidentiary rulings are in the discretion of the trial court and will not be reversed absent a clear abuse of discretion. State v. Willis, 559 N.W.2d 693, 698 (Minn. 1997). A defendant claiming that the trial court erred in admitting evidence has the burden of proving both error and resulting prejudice. State v. Grayson, 546 N.W.2d 731, 736 (Minn. 1996).

Appellant argues that the trial court improperly admitted character evidence, thereby denying him his right to a fair trial.

Character evidence is admissible when "offered by an accused, or by the prosecution to rebut the same." Minn. R. Evid. 404(a)(1). Appellant contends that his character was not at issue, but at trial he testified that he had carefully complied with the terms of his probation for a drug offense and had paid for that crime, and that his only mistake since the drug offense was cheating on his wife. Appellant, by his own testimony, thus raised the character issue. See State v. Nunn, 399 N.W.2d 193, 196 (Minn. App. 1987) (when defendant's testimony leads jury to conclude he is type of person who would admit guilt if guilty, he puts his character at issue), review denied (Minn. Mar. 13, 1987).

At trial, appellant's counsel objected to testimony regarding the drug offense conviction. Yet appellant opened the door to such testimony, both in his counsel's opening statement and by appellant's own testimony about the offense. See State v. Patterson, 493 N.W.2d 577, 580 (Minn. App. 1992) (when appellant opens door with own statements, state can respond).

Appellant's counsel also objected to questioning about a restraining order. But this questioning was in response to appellant's testimony that he had gone out with another woman, but they "didn't make it." On cross-examination, the prosecutor questioned appellant to show that the relationship had not ended by mutual agreement as appellant implied, but ended because of the restraining order. See id. at 580-81 (when defendant's testimony creates favorable but false impression of good character, trial court has discretion to allow rebuttal testimony). The trial court did not abuse its discretion in allowing the evidence of the drug offense and restraining order.

Appellant also objects to testimony that appellant was Hispanic, claiming that this was racist and demeaning. Defense counsel, however, raised the issue by asking a police officer if Swann had said she was afraid to press charges against "an Hispanic." On redirect, the prosecutor merely confirmed that appellant was Hispanic. Nothing more was said. Further, defense counsel did not object to the prosecutor's question. When defense counsel fails to object, we may review if there was plain error affecting substantial rights. State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998). But there was no plain error in the "Hispanic" question.

Appellant's objection to the prosecutor asking him whether his wife attended the trial is similarly waived by his failure to object at trial. See State v. Ture, 353 N.W.2d 502, 516 (Minn. 1984) (defendant's failure to object suggests lack of prejudice).

Finally, appellant argues that he was prejudiced by questions about his brother's imprisonment. Defense counsel did not object until after several questions had been asked, and once counsel did object, the objection was sustained. Counsel did not ask that the testimony be stricken. Under such circumstances, the trial court's decision is upheld unless it was plain error. Rairdon v. State, 557 N.W.2d 318, 325 (Minn. 1996). While the testimony was irrelevant, it was not plain error because it is unlikely that appellant's two-sentence testimony about his brother's imprisonment had a significant effect on the jury's verdict. See Griller, 583 N.W.2d at 741 (for error to be plain error, it must have significant effect on verdict).

II. Prosecutor Misconduct

Appellant argues that the prosecutor committed misconduct by eliciting prejudicial, inadmissible evidence during trial. But we have already determined that the complained-of evidence was admissible or that there was no plain error in its admission, and we find no misconduct by the prosecutor in eliciting this evidence.

Appellant also argues that the prosecutor committed misconduct by calling him a liar during closing arguments. But the standard for granting a new trial based on prosecutorial misconduct is 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). Although the prosecutor's characterization of appellant as a liar was inappropriate, in light of the argument as a whole and the strong evidence against appellant, we cannot say the prosecutor's comments were likely to substantially influence the jury.