This opinion will be unpublished and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


State of Minnesota,


Richard NMN Johnson,

Filed December 28, 1999
Short, Judge

Hennepin County District Court
File No. 98031452

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and

Amy Klobuchar, Hennepin County Attorney, Beverly J. Benson, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

John M. Stuart, State Public Defender, Susan K. Maki, Assistant State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)

Considered and decided by Willis, Presiding Judge, Short, Judge, and Anderson, Judge.

U N P U B L I S H E D   O P I N I O N

SHORT, Judge

A jury convicted Richard Johnson of fourth- and fifth-degree criminal sexual conduct in violation of Minn. Stat. §§ 609.345, subd. 1(c), .3451, subd. 1(1) (1998), but acquitted him of first-, second-, and third-degree criminal sexual conduct. On appeal, Johnson argues: (1) the evidence is insufficient to support the verdict; (2) statements by the prosecution during closing arguments prejudiced his right to a fair trial; and (3) this court should vacate under Minn. Stat. § 609.04, subd. 1 (1998), his fifth-degree criminal sexual conduct conviction. We affirm.



Evidence is sufficient to support a conviction if, given the facts in the record and any legitimate inferences taken from those facts, a jury could reasonably conclude the defendant committed the crime charged. State v. Wilson, 535 N.W.2d 597, 605 (Minn. 1995). We do not retry the facts, but instead view the evidence in the light most favorable to the jury's verdict and assume the jury believed the state's witnesses and disbelieved any contrary evidence. State v. Steinbuch, 514 N.W.2d 793, 799 (Minn. 1994).

Johnson argues the evidence was insufficient to support his conviction of fourth- and fifth-degree criminal sexual conduct. See Minn. Stat. §§ 609.345, subd. 1(c) (engaging in sexual contact with another person using force or coercion), .3451, subd. 1(1) (engaging in nonconsensual sexual contact). The record shows: (1) Johnson threatened the victim and her dog, and did not permit the victim to leave the house; (2) the victim unwillingly engaged in fondling, oral sex, and vaginal intercourse with Johnson because she was frightened that Johnson would harm her; (3) Johnson's semen was found on the victim's underwear, sweatpants, and robe; (4) the Sexual Assault Resource Service nurse who examined the victim found the victim's perineal area to be tender and red; and (5) the victim gave consistent accounts of the incident to the doctor, nurses, and police officers. Given these facts, sufficient evidence supports Johnson's convictions of fourth- and fifth-degree criminal sexual conduct.


Generally, failure to object to or seek cautionary instructions regarding comments made by the prosecution during closing arguments would waive a defendant's right to appeal. State v. Whittaker, 568 N.W.2d 440, 450 (Minn. 1997). But where the prosecution's comments are unduly prejudicial, this court may reverse notwithstanding a defendant's failure to preserve the issue. State v. Parker, 353 N.W.2d 122, 127-28 (Minn. 1984). In cases involving less serious prosecutorial misconduct, we must determine if 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).

Johnson argues the prosecution's comments containing personal belief and vouching testimony, a reference to the recently impeached president, and sympathetic statements regarding the victim, were improper. See Rairdon v. State, 557 N.W.2d 318, 323 (Minn. 1996) (disapproving of prosecution's encouraging conviction based on sympathy for victim); Parker, 353 N.W.2d at 128 (objecting to closing arguments endorsing credibility of state's witnesses and injecting personal opinion); State v. Spaulding, 296 N.W.2d 870, 876 (Minn. 1980) (criticizing introduction by prosecution of issues broader than defendant's guilt or innocence). Viewing the prosecution's closing argument as a whole, the allegedly improper comments were "brief, isolated, not repeated, and were unlikely to have a substantial impact on the jury." State v. Wilford, 408 N.W.2d 577, 580 (Minn. 1987); see also State v. Washington, 521 N.W.2d 35, 40 (Minn. 1994) (noting court must review prosecution's argument as a whole).

The record also indicates Johnson failed to object to the comments or to seek cautionary instructions. See Caron, 300 Minn. at 127, 218 N.W.2d at 200 (finding failure to object or to ask for cautionary instruction weighs heavily against reversal). In addition, the trial court instructed the jury that it was the sole judge of credibility, and that its decision should be based on the evidence presented, rather than on bias, prejudice, or sympathy. See id. (recognizing carefully worded instructions from trial court can ameliorate effect of prosecutorial misconduct). Moreover, the jury acquitted Johnson of some counts and convicted him of others. See Washington, 521 N.W.2d at 40 (viewing mixed verdict as indication jury not unduly inflamed by prosecution's comments). Under these circumstances, we conclude the prosecution's comments did not likely play a substantial part in influencing the jury to convict Johnson.


Finally, Johnson argues this court should vacate his conviction of fifth-degree criminal sexual conduct. See Minn. Stat. § 609.04, subd. 1 (providing person may be punished for either crime charged or included offense, but not both). Because the trial court did not formally adjudicate Johnson's conviction of fifth-degree criminal sexual conduct, we need not vacate his conviction. See State v. LaTourelle, 343 N.W.2d 277, 284 (Minn. 1984) (instructing trial courts to formally adjudicate and impose sentence on only one charge where defendant convicted on more than one charge for same act).