This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-417

 

State of Minnesota,
Respondent,

vs.

Oladapo Adeniyi Olayiwola,
Appellant.

 

Filed July 17, 2007

Affirmed; motion granted

Minge, Judge

 

Ramsey County District Court

File No. K6-04-4174

 

 

Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and

 

Susan Gaertner, Ramsey County Attorney, Jeanne L. Schleh, Assistant County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN 55102 (for respondent)

 

John M. Stuart, State Public Defender, Michael F. Cromett, Assistant Public Defender, 2221 University Avenue S.E., Suite 425, Minneapolis, MN 55414 (for appellant)

 

            Considered and decided by Minge, Presiding Judge; Wright, Judge; and Worke, Judge.

 

U N P U B L I S H E D  O P I N I O N

 

MINGE, Judge

 

            Appellant challenges his conviction of third-degree criminal sexual conduct, arguing that his conviction is not supported by sufficient evidence and that the prosecutor engaged in prejudicial misconduct.  Appellant also raises several arguments in his pro se supplemental brief, some of which respondent moves to strike.  We affirm and grant respondent’s motion.

D E C I S I O N

 

            Appellant Oladapo Adeniyi Olayiwola was convicted by a jury of third-degree criminal sexual conduct based on a complaint by A.I.  The district court sentenced appellant to imprisonment for 52 months.  This appeal follows.         

I.

            The first issue is whether appellant’s conviction of third-degree criminal sexual conduct is supported by sufficient evidence.  When reviewing the sufficiency of evidence, we view the evidence in the light most favorable to the verdict and ask whether a reasonable jury could find the defendant guilty of the charged offense.  State v. Swanson, 707 N.W.2d 645, 658 (Minn. 2006).  “Assessing the credibility of a witness and the weight to be given a witness’s testimony is exclusively the province of the jury.”  State v. Mems, 708 N.W.2d 526, 531 (Minn. 2006).  Moreover, when a defendant is charged with criminal sexual conduct, “the testimony of a victim need not be corroborated.”  Minn. Stat. § 609.347, subd. 1 (2004); State v. Enger, 539 N.W.2d 259, 262 (Minn. App. 1995), review denied (Minn. Dec. 20, 1995).   

            An individual is guilty of criminal sexual conduct in the third degree if he “engages in sexual penetration with another person” and “uses force or coercion to accomplish the penetration.”  Minn. Stat. § 609.344, subd. 1(c) (2004).  As defined by statute,

‘[c]oercion’ means words or circumstances that cause the complainant reasonably to fear that the actor will inflict bodily harm upon, or hold in confinement, the complainant or another, or force the complainant to submit to sexual penetration or contact, but proof of coercion does not require proof of a specific act or threat.

 

Minn. Stat. § 609.341, subd. 14 (2004).

            Appellant argues that the evidence was legally insufficient to support a conclusion that the sexual penetration was the result of force or coercion.  Specifically, appellant argues that several factual inconsistencies between A.I.’s trial testimony and her earlier reports to her boyfriend, law enforcement, and medical personnel created a reasonable doubt that she was coerced to participate in the sexual acts. 

            At trial, A.I. testified that appellant forced her to lie on a bed, held her down, removed her clothes, and penetrated her with his finger and his penis.  A.I. also testified that throughout the incident, she told appellant “no” and physically resisted by cupping herself, covering herself, and moving her hips to avoid penetration.  Appellant does not dispute the sexual penetration, and A.I.’s testimony clearly supports the jury’s determination that appellant used force to hold her down to remove her clothing and accomplish the penetration.  Additionally, the nurse’s examination on the night of the sexual encounter disclosed physical conditions consistent with A.I.’s account of forcible sexual penetration. 

            A.I.’s in-court testimony was not completely consistent with her out-of-court reports.  This had to do largely with the sequence of events and content of conversations before the sexual activity.  But it is well established that, due to its superior opportunity to judge credibility and weigh conflicting evidence, the jury is responsible for credibility determinations.  State v. Green, 719 N.W.2d 664, 673-74 (Minn. 2006).     

            Most importantly, A.I.’s testimony that appellant held her down, removed her pants, and sexually penetrated her in two ways, and her testimony that she told appellant “no” and physically resisted his sexual assault, is consistent with the statements she gave to the police and the investigating nurse.  Her description of the most important details of the assault was consistent throughout the proceedings.  The law does not require corroboration of her testimony.  Accordingly, we conclude that there is sufficient evidence to support the jury verdict convicting appellant of third-degree criminal sexual conduct. 

II.

            The second issue is whether the prosecutor engaged in prejudicial prosecutorial misconduct.  When reviewing whether a prosecutor’s conduct constitutes prejudicial misconduct, our standard of review depends on whether the defendant objected to the alleged misconduct.  Typically, if the prosecutor’s conduct was unobjected-to, the objection is waived on appeal.  State v. Darris, 648 N.W.2d 232, 241 (Minn. 2002).  But we may still review unobjected-to conduct under the three-part, plain-error analysis.  State v. Ramey, 721 N.W.2d 294, 299 (Minn. 2006). 

            Under the plain-error analysis, before reversing for a new trial, a reviewing court must determine that there is error, that the error is plain, and that the error affected the defendant’s substantial rights.  Id. at 298.  Error is plain if it is clear or obvious.  Id. at 302.  And plain error affects a defendant’s substantial rights if there is no “reasonable likelihood that the absence of the misconduct in question would have had a significant effect on the verdict of the jury.”  Id. (quotation omitted).  The defendant bears the burden of showing plain error, but if the error involves prosecutorial misconduct, after plain error is established, the burden shifts to the state to show that the defendant’s substantial rights were not affected by the misconduct.  Id.   

            In contrast, if the defendant objected to the alleged misconduct, the standard is different.  Historically, if such objected-to misconduct is serious, we have affirmed only if there is “certainty beyond a reasonable doubt that the misconduct was harmless.”  State v. Caron, 300 Minn. 123, 127, 218 N.W.2d 197, 200 (1974).  But when the misconduct is less serious, we considered “whether the misconduct likely played a substantial part in influencing the jury to convict.”  Id. at 128, 218 N.W.2d at 200.  Most recently, in State v. Swanson, the supreme court indicated that when reviewing any objected-to misconduct, the court should ask whether the conduct is “harmless beyond a reasonable doubt.”  707 N.W.2d at 658 (quotation omitted).  Misconduct is “harmless beyond a reasonable doubt only if the verdict rendered was surely unattributable to the error.”  Id. (quotation omitted).   Because it is most recent, we apply the Swanson approach to the objected-to prosecutorial conduct considered below.

            Appellant argues that the prosecutor committed prosecutorial misconduct during closing argument by asking the jurors to put themselves in the shoes of the victim, appealing to the jury’s sympathy, and raising issues broader than guilt or innocence.  We examine each in turn.

            A.  “Shoes of the Victim”

            Prosecutors have significant latitude during closing argument.  See State v. Roman Nose, 667 N.W.2d 386, 402 (Minn. 2003).  But prosecutors act improperly if they ask jurors to “put themselves in the shoes of the victim.”  State v. Johnson, 324 N.W.2d 199, 202 (Minn. 1982).  Such arguments are improper because they invite the jury to render its verdict “on the basis of passion rather than reason.”  Id.

            Appellant argues that the prosecutor committed prejudicial misconduct by asking the jurors to “put themselves in the victim’s shoes.”  The challenged exchange was as follows:

[Prosecutor]: I cannot ask you to put yourselves in this particular woman’s, the victim’s, shoes.  That is improper for me to even ask you to do that.  I know better and I won’t, and I won’t ever . . . .

 

[Appellant’s attorney]: Objection, Your Honor.  That is improper to make that reference.

 

[District court]: Sustained.

 

[Prosecutor]: I’m specifically asking you not to do that in that related sense, please not to judge [A.I.] by your own individual standards or whatever standard you think should apply.  It’s speculation.

 

            Here, the prosecutor’s statement was not misconduct.  The prosecutor told jurors not to put themselves in the victim’s shoes.  And even if the reference was a thinly disguised invitation to do so, we would conclude that the jury’s verdict is surely unattributable to the prosecutor’s statement.  Here, the objection to the prosecutor’s comment was sustained, and the jury was instructed to disregard it.  Moreover, the comment was isolated, and the prosecutor did not continually seek to play on the jurors’ passions.  Appellant points to no other instance in which the prosecutor implicitly asked the jurors to “put themselves in the victim’s shoes.”  Based on these considerations, we conclude that even if the references in question constituted misconduct, the jury’s verdict was surely unattributable to the prosecutor’s error. 

            B.  Jurors’ Sympathies

            “[I]t is improper for the [prosecutor] to appeal to the passions and prejudices of the jury” or to “evoke sympathy for a victim.”   State v. Paul, 716 N.W.2d 329, 339 (Minn. 2006); State v. McNeil, 658 N.W.2d 228, 236 (Minn. App. 2003).  Appellant argues that the prosecutor improperly did so by using the victim’s first name during closing argument. 

            Here, the prosecutor referred to A.I. by her first name four different times during closing argument.  But the trial transcript also indicates that the prosecutor correctly referred to A.I. during the vast majority of his closing argument, during his opening statement, and throughout the trial.  Moreover, appellant’s attorney never objected to the prosecutor’s first-name references.  Additionally, appellant directs us to no precedent for the proposition that isolated references to a victim’s first name during closing argument constitute plain error.  We conclude that, under these circumstances, the prosecutor’s isolated first-name references do not constitute plain error.

            C.  Issues Broader than Guilt or Innocence

            “The attorney’s role is to insure the case is decided on the basis of the evidence relevant to the issues raised and the legitimate inferences from that evidence, not on the basis of extraneous matters.”  State v. Richardson, 514 N.W.2d 573, 576 (Minn. App. 1994).  It is improper for prosecutors to inject issues broader than the guilt or innocence of the accused into trial and in so doing, divert the jury from its duty to base its verdict on the evidence.  State v. Washington, 521 N.W.2d 35, 39-40 n.3 (Minn. 1994) (citing I ABA Standards, The Prosecution Function, Standard 3-5.8(d) (2d ed. 1982)).

            The challenged portion of the prosecutor’s closing argument was as follows:

You know that this is a very sad day.  Your job as jurors [is] made . . . difficult by the fact that this defendant didn’t really beat this victim that severely.

            [A.I.] reported the forced penetration of her vagina in order to ward off any more of a serious injury, and that wasn’t a choice.  It was the cruelest possible risk assessment that she ever made and will probably ever make in her life.  I will never tell a rape victim that her case will not go forward because she wasn’t beat or assaulted enough for it to really show.

 

            The prosecutor’s statement was inartful.  It was an apparent claim that appellant need not have inflicted serious physical injury to be guilty of criminal sexual conduct.  Although this was not a material issue at trial, we cannot conclude that this somewhat oblique statement constitutes plain error.  The observation that the jury’s decision was complicated by the lack of visible evidence of beating was not prejudicial.  Although the prosecutor’s comments regarding A.I.’s motive for reporting the assault and the charging criteria are largely irrelevant, they are not necessarily prejudicial.  These themes were neither objected to nor emphasized, and the jury was instructed that the attorney’s arguments were not evidence.  We conclude that this challenged statement by the prosecutor does not constitute plain error. 

III.

            Finally, we consider appellant’s pro se arguments.  Before transmission of the record, respondent moved to strike portions of appellant’s pro se brief on the ground that certain evidence was outside the record and that arguments based on that evidence should not be considered. 

            “The record on appeal . . . consist[s] of the papers filed in the [district] court, the offered exhibits, and the transcript of the proceedings, if any.”  Minn. R. Crim. P. 28.02, subd. 8.  Generally, we will not consider arguments based on evidence outside the record, and matters that are not part of the record will be stricken.  State v. Breaux, 620 N.W.2d 326, 334 (Minn. App. 2001).

            The specific evidence that respondent asserts is not in the record includes: (1) a statement that A.I.’s mother allegedly made to police regarding A.I.’s prior rape accusation; (2) A.I.’s alleged failure to take her medication; and (3) the way in which A.I.’s boyfriend’s allegedly “coerced A.I. to make up a rape story.”  Our review of the transcript and district court file indicates that there is no basis in the record for these alleged statements and facts.  Accordingly, as to those alleged matters, respondent’s motion to strike is granted, and appellant’s pro se arguments based on those matters are stricken from his pro se brief. 

            Certain other pro se arguments by appellant are based on the record.  First, appellant contends that the prosecutor improperly tried to create sympathy for A.I. by portraying her as a person suffering from major mental illness.  Here, the state’s examination of A.I. included references to her mental health.  A.I.’s testimony established that she was on medication for a bipolar condition and that the medication helped her to function as a normal person.  This testimony was given at the start of the trial, as background information, and drew no relevancy objection from appellant.  This information was not emphasized during trial.  Appellant has not shown prejudice, and his argument is without merit.

            Second, appellant’s pro se brief also mentions the exclusion of A.I.’s mental-health records.  Apparently appellant is challenging that exclusion.  The district court has broad discretion in ruling on evidentiary matters.  State v. Kramer, 668 N.W.2d 32, 38 (Minn. App. 2003), review denied (Minn. Nov. 18, 2003).  Here, the record indicates that the district court thoroughly reviewed the mental-health records before excluding the evidence.  Because the challenged evidence is not in the record, we are unable to meaningfully review the district court’s in camera decision, and we reject this pro se challenge. 

            Appellant’s remaining pro se arguments focus on the alleged inconsistencies between A.I.’s trial testimony and her earliest reports of the sexual encounter.  We considered this issue in the first portion of this opinion and do not repeat that analysis here.

            Because we grant respondent’s motion to strike and conclude that appellant’s conviction is supported by sufficient evidence, that the prosecutor did not engage in prejudicial misconduct, and that appellant’s pro se arguments are without merit, we affirm.

            Affirmed; motion granted.    

 

Dated: