Filed February 28, 2006

Reversed and Remanded

Randall, Judge

Dissenting, Dietzen, Judge

Otter TailCounty District Court

File No. K8-03-2290

Michael A. Hatch, State Attorney General, John B. Galus, Assistant Attorney General, 445 Minnesota Street, Suite 1800, St. Paul, Minnesota 55101; and

David J. Hauser, Otter Tail County Attorney, 121 West Junius Avenue, Suite 320, Fergus Falls, Minnesota 56537 (for respondent);

John M. Stuart, State Public Defender, Marie Wolf, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, Minnesota 55414 (for appellant).

Considered and decided by Randall, Presiding Judge, Peterson, Judge, and Dietzen, Judge.

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

RANDALL, Judge

This is an appeal from conviction for first-degree criminal sexual conduct. Appellant argues that the district court abused its discretion in instructing the jury that the complainant’s testimony need not be corroborated, and that this instruction was prejudicial. Appellant also argues that the prosecutor committed prejudicial misconduct in cross-examining appellant about previous theft allegations that the prosecutor had not given Spreigl notice on and that had not resulted in a conviction, so as to be potentially admissible for impeachment purposes. Finally, appellant argues that the prosecutor committed prejudicial misconduct in effectively vouching for the complainant’s testimony and in arguing the defense failure to present contrary evidence.

We conclude that, standing alone, no individual issue raised by appellant would warrant a reversal, but, collectively, the cumulative prejudicial effect of the errors calls for a reversal and a remand for a new trial.

FACTS

In approximately 1995, K.W.R, along with her mother, Joan Walters,[1] and her brother and sister, moved from Baltimore to Georgia to live with her sister, Jennifer Fields, and her husband, William Leroy Fields, appellant.

Appellant and his wife later moved to Minnesota where appellant worked on a dairy farm.

K.W.R. was thereafter diagnosed with scoliosis which required medical treatment. Appellant’s wife learned of K.W.R.’s condition and suggested that she and her family move to Minnesota so that she could be treated at the Shriner’s Hospital in Minneapolis.

In 1997, K.W.R., along with her sister and mother, relocated to Minnesota to live with appellant, his wife, and their two young children. The two families resided together in a two-room mobile home.

Approximately one month after K.W.R. moved in with appellant and his family, appellant started touching her inappropriately on the breast and vagina through her clothing when no one else was around. Appellant also engaged in sexual “dirty talk” with K.W.R. telling her he wanted to conduct certain sexual acts with/on her. Following these incidents, K.W.R. avoided being alone with appellant whenever possible.

Several weeks after appellant’s inappropriate touching and comments, K.W.R. alleged that appellant raped her while K.W.R.’s younger sister and appellant’s daughters played outside. The rape occurred in a bedroom of the mobile home. After the rape, appellant instructed K.W.R. to act as if nothing had happened. Appellant threatened K.W.R. by telling her that if she told anyone about the incident, he would kick her and her family out of the house and that “something else” would happen to her. K.W.R. then went outside to join the other children.

K.W.R. and her family remained in the mobile home for a few months following the rape and subsequently moved to the Fergus Falls area. K.W.R. did not tell anyone about the incident for some time, feeling horrible, confused, and frightened, blaming herself for the incident.

Following the spring of 1997, K.W.R.’s personality changed substantially. She became quiet and shy, began staying in the house and avoiding friends, and did not want to go to school. Her academic performance deteriorated and she experienced several health problems, including weight gain and acid reflux.

In September 2001, K.W.R. partially shared with her aunt, Theresa Walters, what appellant had done.

In September 2003, K.W.R. noticed appellant’s older daughter, D.F., acting in a manner similar as she had following appellant’s sexual abuse: D.F. became withdrawn, quiet, and subject to mood swings. K.W.R. was worried about D.F. and following an inquiry from her mother, broke down and told her mother that appellant had raped her. Her mother notified the police.

Appellant was eventually arrested for sexual abuse and charged with one count of first-degree criminal sexual conduct in violation of Minn. Stat. § 609.342, subd. 1(a), one count of first-degree criminal sexual conduct in violation of Minn. Stat. § 609.342, subd. 1(g), one count of second-degree criminal sexual conduct in violation of Minn. Stat. § 609.343, subd. 1(a), and one count of second-degree criminal sexual conduct in violation of Minn. Stat. § 609.343, subd. 1(g).

During appellant’s trial testimony, he denied ever sexually abusing K.W.R. Appellant testified his work and sleep schedule would have made it difficult to be alone with K.W.R. He testified that on several occasions when he was alone with K.W.R. she never expressed any fear about being alone with him. Appellant’s wife testified, supporting appellant’s testimony that he worked a time-consuming schedule and added that she was always home, essentially testifying that K.W.R. was never alone with appellant. K.W.R also testified as to what appellant had done. The bulk of the evidence presented by both sides included the testimony of appellant, K.W.R., and witnesses.

A jury found appellant guilty of all charges. The district court ruled that all four counts involved a single behavioral incident and sentenced appellant to a presumptive 86-month prison term. This appeal followed.

Appellant argues that the prosecutor committed misconduct by questioning appellant about his prior bad acts when the evidence was inadmissible as Spreigl or impeachment evidence and the prosecutor gave no notice of her intent to question him about the prior bad acts. He also argues the district court committed prejudicial error when it instructed the jury that the victim’s testimony need not be corroborated. Finally, he argues the prosecutor committed misconduct by vouching for the credibility of her own witnesses and by implying that appellant had a duty to present evidence showing why the victim would make up the allegations against him.

D E C I S I O N

I. Spreigl

Appellant argues the prosecutor committed misconduct by questioning appellant on cross-examination about his prior bad act. He argues, because the evidence was not properly admissible and because the trial court’s attempt to give limiting instructions exacerbated any damage caused by the misconduct, he is entitled to a new trial.

A district court’s denial of a new trial motion based on alleged prosecutorial misconduct will be reversed only “when the misconduct, considered in the context of the trial as a whole, was so serious and prejudicial that the defendant’s constitutional right to a fair trial was impaired.” State v. Johnson,616 N.W.2d 720, 727-28 (Minn. 2000). There are two standards for determining whether prosecutorial misconduct is harmless error; serious misconduct will be found “harmless beyond a reasonable doubt if the verdict rendered was surely unattributable to the error,” while for less serious misconduct, the standard is “whether the misconduct likely played a substantial part in influencing the jury to convict.” State v. Powers,654 N.W.2d 667, 678 (Minn. 2003) (citing State v. Hunt,615 N.W.2d 294, 302 (Minn. 2000)).

“If the defendant failed to object to the misconduct at trial, he forfeits the right to have the issue considered on appeal, but if the error is sufficient, this court may review.” Id. (citing State v. Sanders,598 N.W.2d 650, 656 (Minn. 1999)). Only when the misconduct is unduly prejudicial will relief be granted absent a trial objection or request for instruction. State v. Whittaker,568 N.W.2d 440, 450 (Minn. 1997). Error is “prejudicial” if there is a “reasonable likelihood” that it had a significant effect on the jury’s verdict. State v. Griller,583 N.W.2d 736, 741 (Minn. 1998) (citations omitted).

During appellant’s cross-examination, the prosecution asked whether he had previously been in trouble for stealing money from an employer. The record shows zero notice by the prosecutor of her intent to introduce this evidence and, thus, obviously, the state had submitted no prior justification to the court, with an appropriate notice to defense counsel. Appellant’s counsel did not object to the state’s inquiry regarding this prior bad act. Appellant responded that such event had occurred and that he had, in fact, appeared in court as a result. Immediately after the state’s inquiry, the district court provided the limiting instruction that this evidence was admitted “for the limited purpose of assisting you in determining whether Defendant . . . committed those acts with which he is charged . . . .”

The starting point for our discussion is that, generally, evidence of a defendant’s other crimes or prior bad acts is not admissible to show behavior consistent with the character of that defendant suggested by those acts. State v. Spreigl,272 Minn. 488, 491, 139 N.W.2d 167, 169 (1965). Such evidence may be admissible for other purposes, including proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Id. The rationale is to prohibit the use of evidence for the improper purpose of suggesting that defendant’s prior bad acts show that he has a propensity to commit the presently alleged bad acts, or that the defendant is a “proper candidate for punishment” for his past acts. State v. Billstrom,276 Minn. 174, 179, 149 N.W.2d 281, 284-85 (1967).

Evidence of other crimes, wrongs, or acts is referred to in Minnesota law as “Spreigl” evidence. See id. Before Spreigl evidence may be introduced, the party seeking to introduce the evidence must (1) provide notice that it intends to use the evidence, (2) the notice must clearly indicate what the evidence is being offered to prove, (3) the notice must offer clear and convincing proof that the defendant participated in the other offense, (4) prove that the Spreigl evidence is relevant and material to its case, and (5) prove that the probative value of the evidence is not substantially outweighed by its potential for unfair prejudice. Minn. R. Evid. 403, 404(b). None of this was done by the state.

The law is straightforward. When it is unclear whether Spreigl evidence is admissible, the benefit of the doubt should be given to the defendant and the evidence should be excluded. State v. Kennedy, 585 N.W.2d 385, 389 (Minn. 1998). If the district court erred in admitting evidence, the reviewing court determines whether there is a reasonable possibility that the wrongfully admitted evidence significantly affected the verdict. State v. Post, 512 N.W.2d 99, 102 n.2 (Minn. 1994). If there is a reasonable possibility that the verdict might have been more favorable to the defendant without the evidence, then the error is prejudicial. Id.

Generally, other crime evidence “should not be admitted unless, within a reasonable time before trial, the state furnishes defense counsel with a written statement of other offenses it intends to show the defendant committed.” State v. Bolte, 530 N.W.2d 191, 199 (Minn. 1995); Minn. R. Crim. P. 7.02.

Candidly, the prosecutor admitted that she did not seek permission from the district court for admitting such evidence and conceded further that there never was any actual prior conviction for theft. Somehow, the district court still instructed the jury that it could consider appellant’s conviction “as it may affect the weight of the defendant’s testimony.”

Prior misconduct not resulting in a criminal conviction has not undergone the “judicial refining process.” State v. Fallin, 540 N.W.2d 518, 521 (Minn. 1995). It is for this reason that notice should be given and a hearing outside the presence of the jury held. Id. Neither notice nor hearing occurred; as a matter of fact, the district court stated that it was “a bit taken aback when the evidence was brought out.” Respondent was required to give a timely notice of her intention to introduce Spreigl “bad-act” evidence, but failed to do so. That is error. The court’s curative instruction, on these facts, fell short of remedying that error.

II. Jury Instructions

At the prosecutor’s request and over appellant’s objection, the district court instructed the jury that “[i]n a prosecution for criminal sexual conduct in the first – or second – degree, the testimony of a victim need not be corroborated.” Appellant argues this instruction is reversible error.

District courts are allowed “considerable latitude” in the selection of language for the jury instructions. State v. Baird,654 N.W.2d 105, 113 (Minn. 2002). An appellate court will not generally reverse for an instruction to the jury absent an abuse of discretion. State v. Oates, 611 N.W.2d 580, 584 (Minn. App. 2000), review denied (Minn. Aug. 22, 2000).

It is true that Minn. Stat. § 609.347, subd. 1, states that the testimony of a victim in a prosecution for criminal sexual conduct need not be corroborated. But because of the dangerousness of the weight that might be given to it, caselaw states that the district court in a criminal sexual conduct case should not instruct the jury that the victim’s testimony need not be corroborated. State v. Johnson,679 N.W.2d 378, 388 (Minn. App. 2004), review denied (Minn. Aug. 17, 2004); State v. Erickson,403 N.W.2d 281, 286 (Minn. App. 1987), review denied (Minn. April 29, 1987); State v. Williams, 363 N.W.2d 911, 913-14 (Minn. App. 1985), review denied (Minn. May 1, 1985). Such an instruction should not be given because “lack of corroboration is an evidentiary matter, not a substantive one.” Williams, 363 N.W.2d at 914.

This court in Williams stated:

Jury instructions must be construed as a whole and the trial court properly instructed the jury on the burden of proof and the need for the State to prove beyond a reasonable doubt that appellant was guilty. While we agree that the lack of corroboration is an evidentiary matter, not a substantive one, and should not have been included in the instructions, we do not believe that the jury was confused considering the instructions in their entirety.

363 N.W.2d at 914; see also Johnson,679 N.W.2d at 388; Erickson,403N.W.2d at 286.

Appellant argues the error is prejudicial because here the evidence was “very close” and “this instruction could well have been critical in the jury’s decision.” As the parties were discussing jury instructions with the court, respondent argued the necessity of the “no need for corroborated evidence” instruction arguing that the instruction would assist the jury by letting them know that in cases where there is a delay of reporting an incident, as was the case here, physical or other types of evidence may not be available and therefore not necessary. She further reasoned that the instruction would assist the jury “in the issue that the victim in this case and her testimony, if they find it credible and believable, would not need to be supported by any other evidence if they believe that.” Based on the previously cited cases, we are not persuaded. We conclude, as previously stated, that although this improper instruction, standing by itself, may not have been grounds for reversal, this improper instruction compounds the other errors made during the trial.

III. Closing Argument

Appellant alleges that the prosecutor committed misconduct during closing arguments by (1) repeatedly telling the jury that her witnesses were telling the truth and (2) by telling the jury that appellant had not provided a reason as to why the victim would lie. Prosecutors are not permitted to inject personal opinion about the veracity of a witness or the guilt or innocence of the defendant during closing argument. See A.B.A. Standards for Criminal Justice, The Prosecution Function, Standard 3-5.8(b); see also State v. Porter, 526 N.W.2d 359, 364 (Minn. 1995) (improper for prosecution in closing argument to personally endorse the credibility of witnesses).

A defendant alleging prosecutorial misconduct generally will not be granted a new trial if the misconduct was harmless beyond a reasonable doubt. Hunt, 615 N.W.2d at 301-02. Whether the challenged misconduct was harmless depends partly upon the type of misconduct committed. Id. at 302. If the prosecutorial misconduct is serious, it is harmless beyond a reasonable doubt if the verdict rendered was unattributable to the error. Powers, 654 N.W.2d at 678. If the prosecutorial misconduct is less serious, the question becomes whether the misconduct likely played a substantial part in influencing the jury to convict. Id.

In general, a defendant’s right to raise an issue on appeal concerning the prosecutor’s comments during closing argument is deemed waived when the defendant fails to object or request cautionary instructions. Whittaker, 568 N.W.2d at 450. A defendant has a duty to promptly object and seek cautionary instructions since “carefully worded instructions by the trial court can ameliorate the effect of improper prosecutorial argument.” State v. Brown, 348 N.W.2d 743, 747 (Minn. 1984). Absent the general rule, parties would be more apt to withhold objections knowing that if convicted, the issue could be raised on appeal with the possibility of obtaining a new trial. State v. Stofflet, 281 N.W.2d 494, 497 (Minn. 1979).

Absent a timely objection a defendant is entitled to a new trial under the plain-error rule only when “the alleged misconduct was so clearly erroneous under applicable law and so prejudicial to the defendant’s right to a fair trial, that the defendant’s right to a remedy should not be forfeited.” Hunt, 615 N.W.2d at 302. “The plain error standard requires that the defendant show: (1) error; (2) that was plain; and (3) that affected substantial rights.” Strommen, 648 N.W.2d at 686.

Appellant alleges prosecutorial misconduct based on several of respondent’s statements made during closing argument. When reviewing alleged misconduct in closing statements, we look at the whole argument in context, not just selective phrases or remarks. State v. Walsh, 495 N.W.2d 602, 607 (Minn. 1993).

Appellant argues that in closing argument, the prosecutor personally endorsed the credibility of K.W.R. when she stated in regards to whether K.W.R. was violated, “and in fact, in this case, she was that.” Appellant also argues that the prosecutor vouched for K.W.R.’s credibility. Vouching occurs “‘when the government implies a guarantee of a witness’s truthfulness, refers to facts outside the record, or expresses a personal opinion as to a witness’s credibility.’” State v. Patterson, 577 N.W.2d 494, 497 (Minn. 1998) (quoting United States v. Beasley, 102 F.3d 1440, 1449 (8th Cir. 1996)). It is improper to “personally [endorse] the credibility of the state’s witnesses or [to inject] personal opinion . . . .” State v. Parker, 353 N.W.2d 122, 128 (Minn. 1984).

The prosecutor argued:

It’s clear, after you listen to the testimony, that there’s no question that in this case [K.W.R.] was, in fact, violated by [appellant] and through her testimony and the testimony of others you heard, it’s clear that he sexually penetrated her.

But she talked about how she was violated; and in fact, in this case, she was. She was violated in such a manner by this brother-in-law, a person she’s trusted and she’s known way back to Baltimore when she was just a young child and, in fact, still a young child at the age of 11 when this occurred at the Quall Dairy Farm in Underwood.

The prosecutor also stated in closing argument “[w]hy in the world would she [victim] say such a thing if it weren’t true.” She also argued in closing argument that appellant and his wife testified that they did not believe the victim and stated, “they could not come up with why they thought Kaylee would do this [lie].” The prosecutor then told the jury to “think about this when you go back in the room [to deliberate].”

The statements made by the prosecutor during closing argument arguably shifted the burden to appellant to prove that he was not guilty. It is always the state’s burden to prove that a defendant is guilty beyond a reasonable doubt. When the prosecutor pointed out to the jury that appellant and his witness had not “come up with why they thought” the victim would lie, it is not unreasonable to assume that the jury considered this argument in its deliberations and may have reflected why appellant “did not prove his case.” The legal standard is chiseled in stone. A criminal defendant “does not have to prove his case.” The prosecutor has to prove his. The prosecutor exacerbated the problem when she told the jury to “think about this when you go back in the room [to deliberate].”

This closing argument, while overly colorful, and bumping up against the constitutional right of all defendants not to have “to prove explanations tending toward innocence,” again, standing alone, would not warrant reversal. We analyze the issue because it is the totality of a criminal trial that may determine substantial prejudice, or the lack thereof.

IV. Cumulative

As stated in State v. Underwood, 281 N.W.2d 337, 344 (Minn. 1979), which appropriately applies to the case before us, “there was a great deal of conflicting testimony and the factual determinations must have been difficult. Under these conditions, any error, however small, may have prejudiced [appellant].” “To determine if the errors were harmless, we must look to the basis on which the jury rested its verdict and determine what effect the errors had on that verdict. If the verdict actually rendered was surely unattributable to the errors, the errors are harmless beyond a reasonable doubt. Appellant is entitled to a new trial if the errors, when taken cumulatively, had the effect of denying appellant a fair trial.” State v. Keeton, 589 N.W.2d 85, 91 (Minn. 1998).

Here, the case relied solely on the testimony of witnesses, including appellant and the victim. The credibility of those who testified was crucial to the jury’s decision. Appellant’s credibility was damaged by the cumulative effect of respondent’s errors, particularly respondent’s lack of notice to appellant of its intent to introduce Spreigl evidence concerning a past job and allegations of theft. The district court’s instruction to the jury regarding no need to corroborate the victim’s testimony should not have been given.

Taking the record as a whole, we conclude the cumulative effect of trial errors denied appellant a fair trial.

Reversed and remanded.

DIETZEN, Judge (dissenting)

Appellant challenges his conviction on three grounds, i.e., prosecutorial misconduct, improper jury instructions regarding corroboration, and vouching by the prosecutor. The majority concluded that the cumulative effect of these “errors” created substantial prejudice warranting reversal. Because I conclude that the grounds raised by appellant either do not constitute error or constitute harmless error, I respectfully dissent.

First, appellant argues that the prosecutor committed misconduct by questioning him about prior bad acts because the evidence was inadmissible, and the prosecutor failed to give notice. On cross-examination, the prosecutor elicited the following testimony:

[Prosecutor]: [I]n your past, there’s been times that you haven’t been necessarily honest. Would you say that?

[Appellant]: To a certain extent.

[Prosecutor]: And specifically, I’m just talking about a time in the state of Georgia when, I believe, you were in trouble basically for stealing from an employer. Do you recall that?

[Appellant]: Yeah. But I didn’t lie about it.

[Prosecutor]: But you took from the employer.

[Appellant]: Yeah.

[Prosecutor]: When was that exactly?

[Appellant]: Ninety-six I think it was maybe.

[Prosecutor]: And you went to court for that at that time?

[Appellant]: Uh-huh.

Appellant’s counsel did not object to the questioning. Following the exchange, the district court, sua sponte, instructed the jury that the evidence “was offered for the limited purpose of assisting you in determining whether the defendant committed those acts with which he is charged in the complaint.”

The majority labels this testimony as inadmissible Spreigl evidence; however, the record does not support this characterization. Rather, the testimony is a classic example of proper impeachment under Minn. R. Evid. 608(b). See, e.g., State v. Coleman, 426 N.W.2d 889, 893 (Minn. App. 1988), review denied (Minn. Aug. 11, 1988) (finding prosecutor’s impeachment of defendant with 20-year old burglary conviction during criminal sexual conduct trial did not constitute error). Under Rule 608(b), the court may allow cross-examination about a specific instance of conduct “if probative of truthfulness or untruthfulness.” And theft is “sufficiently akin to crimes of dishonesty, such as forgery, bribery, fraud and perjury, typically viewed as relevant to veracity.” State v. Clark, 296 N.W.2d 359, 368 (Minn. 1980).

Because the testimony did not constitute inadmissible Spreigl evidence, there was no prosecutorial duty to follow the notice and proof requirements applicable to such evidence. While it is true that the proper approach would have been for the prosecutor to give pretrial notice of her intent to use the prior bad act for impeachment purposes, appellant failed to object to the lack of notice at trial and, in fact, appellant’s counsel admitted at trial that the questioning was “fair game.” See State v. Fallin, 540 N.W.2d 518, 522 (Minn. 1995) (proper approach is for prosecutor to give pretrial notice of intent to impeach under 608(b)). Therefore, appellant waived the right to have the issue considered on appeal. State v. Powers, 654 N.W.2d 667, 678 (Minn. 2003).

Appellant further argues that the alleged error was exacerbated by the district court’s use of a final jury instruction stating “you must be careful to consider any previous conviction only as it may affect the weight of the defendant’s testimony.” But the record is unequivocal that the instruction was given at the request of defense counsel. Specifically, counsel stated, “I think Your Honor quite appropriately read the limiting instruction when a prior criminal conviction is made reference to in the court, and I’d ask the Court to consider including that also now in the final jury instructions.”

Second, appellant argues that the district court improperly instructed the jury that the victim’s testimony need not be corroborated. This is an accurate statement of the law under Minn. Stat. § 609.347, subd. 1. And, although it is improper to include this statement in jury instructions, such an error is harmless where, as here, the district court properly instructs the jury on the burden of proof and the need for the state to prove its case beyond a reasonable doubt. See, e.g., State v. Johnson, 679 N.W.2d 378, 388 (Minn. App. 2004), review denied (Minn. Aug. 17, 2004).

Third, appellant argues that the prosecutor improperly vouched for the credibility of the victim during closing arguments. But I agree with the majority that the prosecutor’s statements failed to rise to the level of “vouching;” and instead, constituted permissible arguments as to the victim’s credibility. State v. Everett, 472 N.W.2d 864, 870 (Minn. 1991).

Because the three grounds raised by appellant either do not constitute error or are harmless, and appellant was not denied a fair trial, I would affirm the conviction.

[1] Joan Walters is also the mother of Jennifer Fields.