This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




State of Minnesota,



Billy Ray Reynolds,


Filed February 24, 1998


Peterson, Judge

Douglas County District Court

File No. KX96265

Hubert H. Humphrey III, Attorney General, Catherine M. Keane, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Allen L. Senstad, Douglas County Attorney, Courthouse, 305 Eighth Avenue West, Alexandria, MN 56308 (for respondent)

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

Considered and decided by Short, Presiding Judge, Kalitowski, Judge, and Peterson, Judge.



On appeal from a conviction for fourth-degree criminal sexual conduct, appellant Billy Reynolds argues that he is entitled to a new trial because the prosecutor committed misconduct during closing argument. We affirm.


Reynolds neither objected to nor sought cautionary instructions regarding the prosecutor's statements that he now argues were misconduct.

Generally, a defendant is deemed to have waived the right to raise an issue on appeal concerning the prosecutor's comments during closing argument if the defendant fails to object or seek cautionary instructions.

State v. Whittaker, 568 N.W.2d 440, 450 (Minn. 1997).

If a defendant is permitted to allow an error of this nature to pass without objection and then later use it as a basis for new trial, he will be encouraged to forego objection, knowing that if he is convicted he can raise the issue subsequently and possibly obtain a new trial and acquittal. Such a rule would foster abuse of the judicial system.

State v. Stofflet, 281 N.W.2d 494, 497 (Minn. 1979). This court, however, may reverse a conviction despite the defendant's failure to object or seek cautionary "instructions if the prosecutor's comments were unduly prejudicial." Whittaker, 568 N.W.2d at 450. Consequently, we examine the prosecutor's comments to determine whether they were unduly prejudicial. Reynold's failure to object implies that the comments were not prejudicial. See id.

Reynolds argues that the following remarks were an improper endorsement of the victim's credibility by the prosecutor:

One thing I haven't figured out yet in any of the testimony is what [the victim] had to gain if she made up this incredible story. What motive would she have to lie?

* * * *

Now, if this is a story [the victim] made up, which we're going to talk about how tough it is to make up this story she made up, she has to tell the police. * * * She tells a number of other people. * * * She'd have to have a darn good reason for perpetuating this huge fraud, and there is no reason. There's no reason. It's been shown here today why she would make up this story, even if she could, and she couldn't; and I'll talk to you about that in a little bit.

The argument that the victim had no motive to lie was based on evidence at trial that the victim considered Reynolds a friend. There was also evidence at trial indicating that the victim would not have been motivated to fabricate the sexual assault as a means of moving out of her mother's home because her mother frequently threatened to kick the victim out and would have been willing to let the victim leave. The prosecutor argued that the victim could not make up her story about the sexual assault because her story included details that were beyond the sophistication of a 13-year-old.

The prosecutor's comments regarding the victim's credibility were based on evidence in the record and could be evaluated by the jury in light of that evidence. We conclude that the comments were not unduly prejudicial.

Reynolds argues that the following remark was an improper endorsement of witness H.S.'s testimony:

[H.S.] has no motive to lie about anything. She probably wouldn't do it anyway.

The jury could evaluate the prosecutor's comment in light of H.S.'s testimony that she was unconcerned about being caught skipping school and that nothing much bothered her anyway. The comment was not unduly prejudicial.

Reynolds next argues that the following argument was improper:

Now, I offer to you that all of the evidence in this case points to the fact that it happened just like [the victim] said it happened. Unfortunately for the defense, there was no evidence that points to the fact that it didn't happen.

A prosecutor

may not comment on a defendant's failure to call witnesses or to contradict testimony. One rationale for the rule is that a comment of this nature may suggest to the jury that the defendant bears some burden of proof. Another reason is that the comment might "erroneously suggest to the jury that defendant did not call the witnesses because he knew their testimony would be unfavorable."

State v. Porter, 526 N.W.2d 359, 365 (Minn. 1995) (citations omitted) (quoting State v. Caron, 300 Minn. 123, 127, 218 N.W.2d 197, 200 (1974)); see also State v. Streeter, 377 N.W.2d 498, 501-02 (Minn. App. 1985) (repeatedly characterizing state's evidence as "uncontradicted" and "undisputed" was improper).

Even if the prosecutor's comment was improper, the improper argument consisted of only two sentences in a 16-page argument, and the evidence against Reynolds was strong. The victim gave consistent, detailed accounts of the sexual assault in her statement to police and when she testified at trial. To the extent the argument could be construed as an improper reference to Reynolds's decision not to testify, any such error was cured by the trial court's instruction that the jury was to draw no inference from Reynolds's decision not to testify. See State v. Naylor, 474 N.W.2d 314, 321(Minn. 1991) (holding that improper comment regarding defendant's decision not to testify subject to harmless error review unless "comment is extensive, * * * an inference of guilt from silence is stressed to the jury as a basis of conviction, and * * * there is evidence that could have supported acquittal"). We conclude that the improper argument was not unduly prejudicial.

In a pro se supplemental brief, Reynolds alleges that one of the jurors knew the victim and her family. Because Reynolds failed to present evidence supporting this claim, he is not entitled to any relief on this basis. See State v. Starkey, 516 N.W.2d 918, 928 (Minn. 1994) ( quoting State v. Larson, 281 N.W.2d 481, 484 (Minn. 1979), cert. denied, 444 U.S. 973, 100 S. Ct. 467) (before a Schwartz hearing will be required, "defendant must establish a prima facie case of jury misconduct, evidence which `standing alone and unchallenged, would warrant the conclusion of jury misconduct'").

Reynolds also addresses several items of evidence that he apparently thinks should have been admitted at trial. Because the record does not indicate that the evidence was presented to the trial court, the issue is not properly before this court. See Minn. R. Evid. 103(a)(2) (error may not be predicated on erroneous exclusion of evidence unless substance of evidence was made known to court).