This opinion will be unpublished and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

A06-521

State of Minnesota,

Respondent,

vs.

Kelley Francis Lorenzo,

Appellant.

Filed August 7, 2007

Affirmed

Halbrooks, Judge

Dakota County District Court

File No. K8-05-1641

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

James C. Backstrom, Dakota County Attorney, Amy A. Schaffer, Assistant County Attorney, Dakota County Judicial Center, 1560 Highway 55, Hastings, MN 55033 (for respondent)

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

Considered and decided by Halbrooks, Presiding Judge; Toussaint, Chief Judge; and Lansing, Judge.

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

HALBROOKS, Judge

On appeal from his conviction of kidnapping, appellant argues that (1) the prosecutor committed prejudicial misconduct in arguing that the state’s evidence was undisputed; (2) the district court abused its discretion by failing to instruct the jury that confinement or removal that is incidental to a criminal offense is insufficient to constitute kidnapping; and (3) because the more specific statute of indecent exposure while intentionally confining another controls over the more general kidnapping statute, he should have been sentenced for the conviction of indecent exposure. We affirm.

FACTS

While T.P., age 16, was making a purchase in the food court at the Cedarvale Mall, she saw appellant Kelley Francis Lorenzo exposing himself. As T.P. walked away from the snack bar to go to an appointment, she passed by appellant. He grabbed her arm and asked her if she wanted to see his penis. She said, “No.” He asked whether she wanted to watch him ejaculate. T.P. again said, “No.” Appellant then said, “Let’s go downstairs,” and held on to T.P.’s arm as he started down the stairs. T.P. said she had to go, but she did not physically resist. She was frightened but did not scream because she was afraid of being hurt. T.P. is five feet, three inches tall and 115 pounds; appellant is six feet, four inches tall and 220 pounds.

Once downstairs, appellant took T.P. to a water fountain in an empty corridor. Appellant continued to ask T.P. whether she wanted to see him ejaculate and invited her to suck or touch his penis. She said, “No,” and “I have to go now.” When she cried, appellant told her to keep quiet. At one point, appellant released his hold of T.P.’s arm. But when she tried to walk away, he again grabbed her arm. As T.P. again tried to get away, appellant struck her upper leg with his knee, causing her to fall to the floor. Appellant then restrained T.P. by placing his hand or his foot on her back. When T.P. was able to stand up, appellant ejaculated into the water fountain. Afterwards, appellant told T.P. that “girls like [her] are the reason why he does these f-cking things.” Appellant threw two five-dollar bills at T.P., called her “a f‑cking b-tch,” and walked away.

T.P. testified that she felt “sick,” “[v]iolated, hurt,” and “very scared.” She “went upstairs and sat down on a ledge by a door . . . , and I was just bawling, just crying, and shaking my head.” About five minutes later, she went to her appointment, where she reported what had happened. When police arrived, T.P. remained “upset, teary eyed, very nervous.” The investigator who arrived later described T.P. as “very shaken. She was trembling when I initially started speaking with her.” The investigator photographed the scrape across T.P.’s cheek that resulted from her fall and a red mark on her left arm. The investigator also photographed the scene and collected semen samples from the fountain and the five-dollar bills. T.P. subsequently identified appellant in a second photo lineup. The semen collected was a match with the buccal sample that appellant later provided to police.

When interviewed, appellant admitted to the police that he was at the Cedarvale Mall on the day in question, exposed himself to T.P. and then took her downstairs, where he masturbated in front of her and ejaculated into the water fountain. But appellant denied giving T.P. any money.

Appellant was charged with third-degree attempted criminal sexual conduct under Minn. Stat. § 609.344, subds. 1(c), 2 (2004); indecent exposure under Minn. Stat. § 617.23, subds. 1(1), 3(2) (2004); and false imprisonment under Minn. Stat. § 609.255, subd. 2 (2004). Appellant was later charged with kidnapping under Minn. Stat. § 609.25, subds. 1(2), 2(1) (2004); first-degree attempted criminal sexual conduct under Minn. Stat. § 609.342, subds. 1(e)(i), 2 (2004); and indecent exposure while intentionally confining another under Minn. Stat. § 617.23, subd. 3(2) (2004).

A jury convicted appellant of kidnapping, false imprisonment, and indecent exposure. Based on a plea agreement that resolved sentencing not only on this case but on several other matters that were pending against appellant in the same district court, the appellant agreed to plead guilty to several pending charges, and the state agreed to forgo an upward departure or consecutive sentencing. The district court sentenced appellant to 43 months in prison concurrent with several lesser sentences for third-degree assault, two counts of gross-misdemeanor indecent exposure, violation of probation on two earlier felony convictions, and contempt of court. This appeal follows.

D E C I S I O N

Appellant contends that the prosecutor committed misconduct by referring 18 times in his closing argument to the “undisputed” facts of the case when appellant did not testify or call any witnesses. Appellant did not object during the prosecutor’s closing argument. A defendant who fails to object to prosecutorial misconduct at trial generally waives the right to have the issue considered on appeal. State v. Sanders, 598 N.W.2d 650, 656 (Minn. 1999). “[D]efendant’s failure to object implies that the comments were not prejudicial.” State v. Whittaker, 568 N.W.2d 440, 450 (Minn. 1997).

But this court will consider the issue and grant a new trial if the misconduct constituted plain error. State v. Ramey, 721 N.W.2d 294, 299 (Minn. 2006). A plain-error analysis requires that there be (1) error; (2) that is plain; and (3) that affects substantial rights. Id.at 302 (citing State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998)). Plain error is one that is clear or obvious under current law. Johnson v. United States, 520 U.S. 461, 467, 117 S. Ct. 1544, 1549 (1997). Usually, an error is clear or obvious if it contradicts case law, a rule, or a standard of conduct. Ramey, 721 N.W.2d at 302.

If the defendant proves that the alleged unobjected-to misconduct was plain error, the burden then shifts to the state to prove that the plain error did not affect the defendant’s substantial rights. Id. at 299-300. The state meets this burden if it can show that there is no reasonable likelihood that the misconduct had a significant effect on the jury’s verdict. Id. at 302. If the state fails to meet its burden, a reviewing court “assesses whether the error should be addressed to ensure fairness and the integrity of the judicial proceedings.” Id. A reviewing court “consider[s] the closing argument as a whole rather than focusing on particular phrases or remarks that may be taken out of context or given undue prominence.” State v. Leake, 699 N.W.2d 312, 327 (Minn. 2005) (quotation omitted), cert. denied, 126 S. Ct. 745 (2005).

The Fifth Amendment protection against self-incrimination extends to prohibit prosecutorial comment either directly or indirectly on the defendant’s failure to testify. State v. Streeter, 377 N.W.2d 498, 501 (Minn. App. 1985) (citing Griffin v. California, 380 U.S. 609, 615, 85 S. Ct. 1229, 1233 (1965)). Such an impermissible inference may arise when the prosecutor refers to the evidence as “uncontradicted” or “undisputed.” Id.

In Streeter, the defendant was charged with DWI, presenting a false driver’s license, giving false information to the police, and obstructing legal process. Id. at 499. The only witness at trial was the arresting officer. Id. at 500. The state did not provide documentary evidence of the allegedly false driver’s license that Streeter gave the officer. Id. Nonetheless, the prosecutor characterized the evidence as “uncontradicted” or “undisputed” at least eight times during a ten-minute closing argument. Id. at 501.

After the prosecutor stated at least three times that the officer’s testimony was “undisputed,” defense counsel objected. Id. at 500. In response, the district court instructed the jury that closing arguments by counsel are not evidence. Id. Despite that cautionary instruction, the prosecutor’s next statement was: “The facts I indicated are certainly undisputed and certainly uncontradicted.” Id. After characterizing the officer’s testimony as “uncontradicted” four more times, defense counsel again objected to the prosecutor’s reference to the driver’s license, which was not in evidence. Id.

After the jury began deliberating, defense counsel moved for a mistrial. Id. at 501. The motion was denied. Id. The jury convicted Streeter of DWI and presenting a false driver’s license. Id. The district court subsequently denied defendant’s motion for new trial. Id.

On appeal, this court reversed, stating that

[e]ven if, through the use of these words, the prosecutor did not intend to improperly suggest that defendant had an obligation to present evidence, that was undoubtedly the effect of his argument. There was only one witness at trial—the officer who arrested Streeter. The only person who could have refuted the officer’s testimony was the defendant.

Id. at 501-02.

Further, we held that

[d]espite [the district court’s] instructions, we think the persistent, improper characterization of the evidence as “uncontradicted” when Streeter was the only person who could contradict the officer’s testimony caused the jury to think either that Streeter did not dispute much of Officer Harty’s testimony or that Streeter was obligated to testify or present evidence. To affirm, an error of this magnitude must be harmless beyond a reasonable doubt.

Id. at 503.

Here, the relevant portion of the prosecutor’s closing argument that appellant objects to included the following statements:

Now, when you start your deliberations, you need to keep in mind that there are several things in this case that are not at issue, that are not disputed. The first of those is when this happened. It happened on February 3rd of 2005. The second issue that is not disputed is where it happened. It happened at the Cedarvale Mall in the City of Eagan, and in Dakota County. You will see when you are going through some of the Judge’s instructions that those two pieces will occur in several of the instructions. Just realize that those are not in dispute.

The other issue that is not disputed or is not an issue in this case is who. Who is involved in this offense is not in dispute. [Appellant’s] DNA was found in the drinking fountain and on one of the five dollar bills. That was stipulated to. And you also heard testimony from Detective Bolluyt regarding that. You didn’t hear testimony from the actual analyst at the Bureau of Criminal Apprehension Laboratory because there was a stipulation as to facts that it was [appellant’s] DNA in the drinking fountain, and it was his DNA on that five dollar bill. And that DNA came from semen in both of these locations.

There is no dispute that on February 3rd of 2005 [appellant] was at the Cedarvale Mall. There is no dispute that on that day [appellant] came into contact with [T.P.] at the snack bar in the upstairs of the mall. [Appellant] told Detective Bolluyt himself that upon seeing [T.P.] he started to think about exposing himself. [Appellant] admitted to the detective, Detective Bolluyt, that he went downstairs with [T.P.]. He admitted to exposing himself to [T.P.] and to going downstairs and masturbating in front of her, and to masturbating into that drinking fountain. The issue of who is a nonissue in this case. Keep that in mind when you are going through the instructions later this afternoon.

. . . .

[T.P.] then looked after that time at a second line-up where she identified [appellant]. And this may seem confusing. Why did she pick one person out this time, one person out that time? And it is not an issue in this case. [Appellant’s] identity is known in this case. The fact that she identified someone else in the first line-up doesn’t directly go to her memory of this specific event of February 3rd of 2005. She explained that she wasn’t focused on her attacker’s face. She explained that her attention was focused elsewhere.

The what. The issue in this case is the what. All I ask you to do is take your time and consider all the evidence that you have heard and seen in this case. As I just mentioned a few minutes ago, it is undisputed that [appellant] and [T.P.] went to the basement of the mall. It is undisputed that [appellant] exposed himself and masturbated in front of [T.P.].

. . . .

Now, the specific offenses that are charged. The Judge is going to give you some instructions to go through the specific elements for the offenses. You need to have one, two, three, four and five, those being different elements of the offense (indicating). And I would just like to take a few minutes to go over a few elements that are going to be contentious today. Keep in mind the date, the location, the identity of [appellant] is not an issue here.

. . . .

On the indecent exposure Count. It is my understanding that you will receive two separate instructions on indecent exposure. One of them will be the indecent exposure with intentional confinement, and the other will simply be indecent exposure. Indecent exposure requires the willful and lewd exposure of the body of private parts. And an act is willful and lewd if it is done with deliberate intent to be lewd or indecent. There is no dispute here that [appellant] exposed himself to [T.P.]. There is no dispute that he masturbated in front of her and ejaculated into that drinking fountain in the basement of that mall.

. . . .

Credibility. The Judge will give you an instruction regarding the credibility of the witnesses. Again, listen to that carefully. [The witnesses’]credibility was not attacked. It is not really an issue there. There are several things in the instructions that the Judge will give you that you can consider when weighing the credibility of the witnesses. Look at those items when referring to [the witnesses’ testimony]. . . . They don’t have a personal stake in the outcome of this case. They are here doing their job. Their credibility was not attacked.

(Emphasis added.)

In appellant’s closing argument, appellant’s counsel stated, “[a]nd I will concede that, and frankly, [appellant] knows that this incident that occurred on February 3rd, 2005, involved offensive conduct on his part, and he told Detective Bolluyt as much.” Appellant’s counsel further stated, regarding appellant’s act of willfully exposing himself in a lewd manner to another, “And I think, you know, frankly, in the most charitable reading of the evidence in this case, [appellant] probably did that, and he owned up to that with Detective Bolluyt. He exposed himself downstairs at the mall and to [T.P.].” For the charge of indecent exposure, “I concede that [appellant] might have a problem there.” “When you consider the lesser included count, the indecent exposure, yeah, you know, that probably happened.”

Appellant’s closing argument attacked the lack of evidence of intended sexual penetration of T.P. without her consent and the confinement necessary for false imprisonment, kidnapping, and indecent exposure while intentionally confining another and challenged T.P.’s credibility. In rebuttal, the prosecutor addressed T.P.’s credibility but did not say that testimony was undisputed.

While appellant raises the same issue that we addressed in Streeter, the cases are distinguishable. As a threshold matter, as previously noted, appellant here raised no objection to the prosecutor’s closing during trial. In addition, appellant’s counsel acknowledged in his closing argument that the “when,” the “where,” and the “who” that the prosecutor argued were undisputed, were essentially undisputed. These admissions were testified to by the arresting officer, who stated that appellant admitted that he exposed himself to T.P., masturbated in front of her, and ejaculated into the water fountain. Further, the parties stipulated to the results of the DNA testing that matched the semen found in the fountain and on the five-dollar bill with appellant’s sample. Based on this record, we conclude that the prosecutor did not commit plain error.

II.

Appellant next argues that the district court erred because its jury instruction on kidnapping failed to inform the jury that confinement or removal that is incidental to other conduct is insufficient to constitute kidnapping under State v. Smith, 669 N.W.2d 19, 32 (Minn. 2003). District courts are allowed “considerable latitude” in the selection of language for jury instructions. State v. Baird, 654 N.W.2d 105, 113 (Minn. 2002). “[J]ury instructions must be viewed in their entirety to determine whether they fairly and adequately explain[] the law of the case.” State v. Flores, 418 N.W.2d 150, 155 (Minn. 1988). “An instruction is in error if it materially misstates the law. Furthermore, it is well settled that the court’s instructions must define the crime charged.” State v. Kuhnau, 622 N.W.2d 552, 556 (Minn. 2001) (citations omitted). As with the first issue, appellant did not object at trial to the jury instructions. We therefore review this matter on a plain-error basis. Minn. R. Crim. P. 31.02; Griller, 583 N.W.2d at 740.

The supreme court noted its concern in Smith that recent legislative changes had resulted in “a significantly different [sentencing] implication to a kidnapping conviction.” Smith, 669 N.W.2d at 32 (quotation omitted). Therefore, “in order to justify a separate criminal sentence,” the “confinement or removal must be criminally significant in the sense of being more than merely incidental to the underlying crime.” Id. Because the victim’s confinement in Smith occurred “only after the attack that culminated in [victim’s] murder was underway” when the defendant momentarily blocked the victim’s passage through a doorway, the evidence of confinement was insufficient as a matter of law to support defendant’s conviction of first-degree murder while committing kidnapping. Id. at 33.

The supreme court applied the principle enunciated in Smith in a case involving an attempted sexual assault in a park that resulted in convictions of kidnapping and attempted second-degree criminal sexual conduct. State v. Welch, 675 N.W.2d 615 (Minn. 2004). In Welch, a stranger followed a woman pushing her six-month-old daughter in a stroller. Id. at 616. The man caught up with her and started a conversation. Id. Welch threw the woman suddenly to the ground and straddled her. Id. at 616, 617. The woman fought back with Mace. Id. at 617. Welch slammed her head against the ground and attempted to choke her. Id. But when Welch stood up suddenly, the victim was able to flee. Id. Welch was convicted of both crimes and sentenced to 45 months in prison for kidnapping and a consecutive 150-month sentence for the attempted second-degree criminal sexual conduct. Id. at 618. Upon review, the supreme court noted that no removal had been alleged, and “the confinement that forms the basis of the kidnapping is the very force and coercion that supports the attempted second-degree criminal sexual conduct conviction.” Id. at 620. Therefore, the supreme court held that “the facts clearly do not support a conviction for kidnapping.” Id.

As part of its instructions for kidnapping, the district court here stated:

The statutes of Minnesota provide that whoever confines or removes from one place to another any person without that person’s consent for the purpose of facilitating the commission of attempted criminal sexual conduct or indecent exposure—intentionally confining, is guilty of a crime.

The elements of kidnapping are: First, the defendant confined or removed [T.P.] from one place to another without [T.P.’s] consent.

To confine a person is to deprive the person of freedom. A physical restraint is not necessary; a person can restrain another by threats of force. To remove a person from one place to another is to cause the person to move from the place where the person was to another place. It is not necessary that the defendant have physically transported [T.P.]. It is sufficient if the removal was accomplished by the threat of force.

See 10 Minnesota Practice, CRIMJIG 15.01-15.02 (2006).

Appellant grabbed T.P.’s arm while she was saying, “No” and “I have to go now.” Without T.P.’s consent, he forced her down the mall stairs into an empty hallway. Minnesota law does not indicate a minimum removal distance for kidnapping. State v. Morris, 281 Minn. 119, 122, 160 N.W.2d 715, 717 (1968). But some confinement or removal must occur. Minn. Stat. § 609.25, subd. 1 (2004) (defining the crime, in part, in terms of as including “[w]hoever . . . removes from one place to another, any person”); Welch, 675 N.W.2d at 620 (noting that no one indicated that removal occurred). Here, appellant conceded that he moved T.P. from one floor to another (unoccupied) one.

Under Minn. Stat. § 609.25, subd. 1, the removal must be nonconsensual. T.P. on several occasions indicated that she did not want to go with appellant, who forced compliance through grabbing her arm. T.P. tried to leave twice, only to be held onto and kicked to the floor. When she cried, appellant told her to keep quiet. Afterwards, she was distraught. There is nothing in this record to support any claim that the removal was consensual.

And, most significant in light of the supreme court’s concern in Smith, appellant was sentenced to 43 months based on a plea agreement for the kidnapping conviction. Appellant did not receive a separate consecutive criminal sentence for the other convictions. Therefore, the rationale for Smith does not exist here. In enforcing the plea agreement, the district court ensured that appellant would not receive an unduly harsh penalty for the combination of a felony and kidnapping. Therefore, we conclude that the district court did not err in its use of this jury instruction.

III.

Finally, appellant argues that because Minn. Stat. § 617.23, subd. 3(2) (2004), felony indecent exposure while intentionally confining another, is a more specific statute than the general kidnapping statute, the former conviction should dictate the punishment in this matter. We review a question of law or statutory interpretation de novo. State v. Coauette, 601 N.W.2d 443, 445 (Minn. App. 1999), review denied (Minn. Dec. 14, 1999).

Prosecutors have discretion in charging a defendant under any of the applicable statutes to the facts of the case. State v. Craven, 628 N.W.2d 632, 634-35 (Minn. App. 2001), review denied (Minn. Aug. 15, 2001). “But when two criminal statutes, one general and one specific, conflict because they have the same elements but differing penalties, the more specific statute governs . . . unless the legislature manifestly intends for the general statute to control.” Id. at 635; see also State v. Lewandowski, 443 N.W.2d 551, 552-54, 555 (Minn. App. 1989) (vacating escape conviction because the crime precisely fit the definition for release, failure to appear, and without such distinction, the specific statute becomes superfluous).

Under Minnesota law, a person who “willfully and lewdly exposes the person’s body, or the private parts thereof . . . in the presence of another person while intentionally confining that person or otherwise intentionally restricting that person’s freedom to move” commits felony indecent exposure. Minn. Stat. § 617.23, subds. 1(1), 3(2) (2004). By comparison, Minnesota law defines kidnapping as:

Whoever . . . confines or removes from one place to another, any person without the person’s consent or, if the person is under the age of 16 years, without the consent of the person’s parents or other legal custodian, is guilty of kidnapping . . . to facilitate commission of any felony or flight thereafter.

Minn. Stat. § 609.25, subd. 1(2).

The elements of indecent exposure while intentionally confining another are: (1) to willfully and lewdly expose the person’s body or private parts in the presence of another person (2) while intentionally confining that person or otherwise intentionally restricting that person’s freedom to move. Minn. Stat. § 617.23, subd. 3(2). In contrast, kidnapping is (1) the confining or removal from one place to another (2) of any person without their consent (3) to facilitate commission of any felony or flight thereafter. Minn. Stat. § 609.25, subd. 1(2). One can commit felony indecent exposure without removing the victim. The indecent-exposure statute is satisfied by confinement or by intentional restriction of a person’s freedom to move. While the crime of kidnapping can involve confinement, it can also involve removal of a victim from one place to another, as occurred here. Because the statutes do not necessarily cover the same conduct, or have the same elements, Craven does not apply.

Affirmed.