Opinion
A15-0492
02-08-2016
State of Minnesota, Respondent, v. Timothy Charles Dempze, Appellant.
Lori Swanson, Attorney General, St. Paul, Minnesota; and Pete Orput, Washington County Attorney, Peter S. Johnson, Assistant County Attorney, Stillwater, Minnesota (for respondent) Cathryn Middlebrook, Chief Appellate Public Defender, St. Paul, Minnesota (for appellant)
This opinion will be unpublished and may not be cited except as provided by Minn . Stat. § 480A.08, subd. 3 (2014). Affirmed
Klaphake, Judge Washington County District Court
File No. 82-CR-14-432 Lori Swanson, Attorney General, St. Paul, Minnesota; and Pete Orput, Washington County Attorney, Peter S. Johnson, Assistant County Attorney, Stillwater, Minnesota (for respondent) Cathryn Middlebrook, Chief Appellate Public Defender, St. Paul, Minnesota (for appellant) Considered and decided by Reyes, Presiding Judge; Peterson, Judge; and Klaphake, Judge.
Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
UNPUBLISHED OPINION
KLAPHAKE, Judge
In this criminal appeal, Timothy Charles Dempze challenges his conviction for first-degree criminal sexual conduct by claiming that the prosecutor committed prejudicial misconduct. Because none of the prosecutor's actions rose to the level of plain error affecting appellant's substantial rights or the trial outcome, we affirm.
DECISION
Appellant sets forth four examples of prosecutorial misconduct during closing argument: (1) misstating the burden of proof; (2) arguing facts not in evidence; (3) invading the province of the jury; and (4) disparaging the defense. Defense counsel did not object during closing argument when the alleged misconduct occurred. "[A]n unobjected-to error can be reviewed only if it constitutes plain error affecting substantial rights." State v. Ramey, 721 N.W.2d 294, 297 (Minn. 2006). "In applying plain error analysis, we will reverse trial error only if there is (1) error, (2) that is plain, and (3) the error affects the defendant's substantial rights." State v. Hill, 801 N.W.2d 646, 654 (Minn. 2011). "An error is plain if it was clear or obvious." State v. Strommen, 648 N.W.2d 681, 688 (Minn. 2002) (quotations omitted). Upon a showing of plain error, the burden shifts to the state to show that the error did not affect the defendant's substantial rights. Ramey, 721 N.W.2d at 302. When assessing alleged prosecutorial misconduct during a closing argument, "we look to the closing argument as a whole, rather than to selected phrases and remarks." Ture v. State, 681 N.W.2d 9, 19 (Minn. 2004). The propriety of a prosecutor's closing argument is "within the sound discretion of the trial court." State v. Ray, 659 N.W.2d 736, 746 (Minn. 2003) (quotation omitted).
Burden of Proof
Appellant first claims that the prosecutor lowered the burden of proof by telling the jurors that, if they believe the victim, "the only possible verdict is guilty." "Misstatements of the burden of proof . . . constitute prosecutorial misconduct." State v. Fields, 730 N.W.2d 777, 786 (Minn. 2007). But commenting on the lack of evidence supporting a theory of defense is not improper burden shifting. State v. McDaniel, 777 N.W.2d 739, 750 (Minn. 2010). And comments on the credibility of defense witnesses are permissible. State v. Robinson, 604 N.W.2d 355, 362 (Minn. 2000).
During the closing argument, the prosecutor stated, "If you believe [H.E.], the only possible verdict in this case is guilty. That's all you need to know right there. If you believe nine-year-old [H.E.], who has no reason -- who doesn't have the capacity to make up what happened, then the only possible verdict is guilty." The state did not lower the burden of proof by highlighting the credibility of its witness and telling the jury that it had to deliver a guilty verdict if it believed the victim. During one portion of the prosecutor's closing argument, he explained:
Now, you're going to see in your instructions—you're going to see a list of some suggested factors to consider when you're weighing credibility of witnesses. And I like to use these, because this is a good framework here for us to discuss why there is no other reasonable conclusion than to believe [H.E.].
In doing so, the prosecutor simply highlighted for the jury the credibility of the state's witness. The prosecutor also walked the jury through the elements of each crime with which appellant was charged. Additionally, the district court advised the jury on more than one occasion that the state was required to prove each element beyond a reasonable doubt. A district court's "repeated instruction on the state's burden to prove the defendant's guilt leaves no doubt that the jury could not have been misled that it was the burden of the state to prove each element of the charged crime beyond a reasonable doubt." Id. For these reasons, we conclude that the prosecutor's statement falls well below the threshold necessary to establish plain error.
Facts Not in Evidence
Appellant next claims that the prosecutor argued facts not in evidence by telling the jury that H.E. did not have "the capacity" to lie because the state had not introduced evidence that H.E. was mentally incapable of telling a falsehood. "[A] prosecutor may make reasonable inferences from the facts." State v. Rucker, 752 N.W.2d 538, 551 (Minn. App. 2008), review denied (Minn. Sept. 23, 2008); see also Standards for Criminal Justice: Prosecution and Defense Function § 3-6.8(a) (Am. Bar Ass'n 4th ed. 2015), http://www.americanbar.org/groups/criminal_justice/standards/ProsecutionFunctionFourthEdition.html. ("The prosecutor may argue all reasonable inferences from the evidence in the record, unless the prosecutor knows an inference to be false."). And "prosecutors are not prohibited from arguing that certain witnesses are believable." Rucker, 752 N.W.2d at 552.
To isolate the word "capacity" from the entirety of the prosecutor's closing argument and conclude that the prosecutor was attempting to argue that H.E. lacked the mental capacity to understand the difference between a truth and a lie constitutes a misreading of the record. The prosecutor used the word "capacity" on only two occasions during closing argument. He also stated that "[H.E.] doesn't get what this means yet," that "[i]f this were made up, if this weren't true, that's a hard thing to do for any of us, let alone a nine-year-old girl." He went on to add, "Now, age and experience is really important here, too. Because [H.E.], you can tell through her testimony, she doesn't -- she doesn't understand the significance of this, and she won't for a couple years to come. She doesn't know what this means." He also reflected on H.E.'s testimony of appellant's conduct by asking, "How would she know that that's what would happen if somebody were to touch you? She doesn't know this stuff. She knows it because that's what happened."
The prosecutor employed the permissible tactic of asking the jury to draw inferences based on H.E.'s age, testimony, and capacity for understanding the situation. These inferences were permissible because they derive from evidence of H.E.'s age and her demeanor during testimony at trial and during her interview at Midwest Children's Resource Center (MCRC). We conclude that appellant has not proved that the prosecutor's sparing use of the word "capacity" rises to the level of plain error.
Invading the Province of the Jury
Appellant next claims that the prosecutor invaded the province of the jury when he stated that the MCRC nurse knew how to make sure that H.E. knew what she was talking about and that H.E. was telling the truth. "The assessment of a witness's credibility is exclusively the province of the jury." State v. McCray, 753 N.W.2d 746, 754 (Minn. 2008) (quotation omitted). Impermissible 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. Lopez-Rios, 669 N.W.2d 603, 614 (Minn. 2003) (quotations omitted). "Although prosecutors may not personally endorse witnesses, the [s]tate is free to argue that a particular witness is credible." State v. Pendleton, 759 N.W.2d 900, 912 (Minn. 2009).
Here, the prosecutor stated during closing argument that H.E. was interviewed by an MCRC nurse with
fifteen years of experience, something like 2,000 interviews with juveniles. She knows what she's doing. I can't think of anything I've done 2,000 times. She's done this 2,000 times. She knows how to interview. She knows how to make sure that that girl knows what she's talking about and that she's telling the truth.Although the prosecutor did not personally endorse the MCRC nurse, these comments can reasonably be interpreted to imply a guarantee of trustworthiness. But the inquiry does not end with a finding of impropriety. Even if this was plain error, this court must determine whether the misconduct impaired appellant's right to a fair trial. State v. Graham, 764 N.W.2d 340, 347 (Minn. 2009).
In assessing whether there is a reasonable likelihood that the absence of the misconduct would have had a significant effect on the jury's verdict, we consider the strength of the evidence against the defendant, the pervasiveness of the improper suggestions, and whether the defendant had an opportunity to (or made efforts to) rebut the improper suggestions.State v. Davis, 735 N.W.2d 674, 682 (Minn. 2007).
These comments must be considered in the context of the entire closing argument. The comments were not pervasive, defense counsel did not object, and the prosecutor's argument was a reiteration of the MCRC nurse's own testimony during trial. When asked how many forensic interviews she had performed in her career, she answered, "Well, I don't know for sure. I lost track a long time ago, when it was well over a thousand. I would guess that, you know, that was about seven or eight years ago when I stopped counting. So maybe close to 2,000 now. I don't know for sure."
Although the prosecutor's comments may be read to imply a guarantee of trustworthiness, after reviewing the entire closing argument, these comments did not rise to such a level that appellant's substantial rights were affected.
Disparaging the Defense
Finally, appellant claims that the prosecutor disparaged the defense by making a highly prejudicial emotive appeal to the jury. "A prosecutor may argue that a defense has no merit in view of the evidence, but may not denigrate a particular defense in the abstract." Rucker, 752 N.W.2d at 553.
Appellant argues that the prosecutor's use of the words "devil," "criminal mastermind," "ridiculous," and "preposterous" created a situation in which the jury could only acquit appellant if it believed that H.E. deliberately made up the accusations—"that if it did not believe there was a conspiracy against [appellant], it had to convict him." These words were used in the prosecutor's rebuttal argument as a response to the defense theory asserted during appellant's closing argument. In fact, "preposterous" was first used by defense counsel to describe the accusation that appellant molested H.E. in a small bunkbed rather than waiting until she fell asleep in a more accessible area:
How could he even fit? How could he possibly think that he wouldn't wake her? . . . It's preposterous. It's just preposterous. . . . If he was going to molest [H.E.], which he certainly did not, but if he was going to, wouldn't it have made more sense to leave her sleeping downstairs where she was?Defense counsel used these types of questions to insinuate that H.E.'s credibility was suspect. On rebuttal, the prosecution was entitled to vigorously argue that the state's witnesses were more credible and that appellant's defense theory had no merit. The record reflects that the prosecutor was not disparaging the defense, but rather was attacking specific arguments and theories presented by defense counsel. Because the prosecutor was free to rebut defense counsel's assertions during closing arguments, we cannot conclude that the use of these words constitutes plain error.
Affirmed.