State v. Anderson, A20-0095

State of Minnesota, Respondent, v. David Ronald Anderson, Appellant.

A20-0095

STATE OF MINNESOTA IN COURT OF APPEALS

December 28, 2020

This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2018).

Affirmed

Reyes, Judge

Hennepin County District Court

File No. 27-CR-18-15998

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Michael O. Freeman, Hennepin County Attorney, Linda Freyer, Assistant County Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Jenna Yauch-Erickson, Assistant Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Reyes, Presiding Judge; Connolly, Judge; and Gaïtas, Judge.

UNPUBLISHED OPINION

REYES, Judge

In this direct appeal from a conviction of first-degree criminal sexual conduct, appellant argues that the prosecutor committed misconduct by arguing facts not in evidence and inflaming the passions and prejudices of the jury in closing argument. Appellant also makes several pro se arguments, including that (1) his conviction is supported by insufficient evidence; (2) trial counsel provided ineffective assistance; (3) the district court erred in sentencing; (4) the district court erred by failing to provide him a second court-appointed attorney; (5) the district court exhibited bias against him; (6) trial counsel exhibited bias against him; and (7) additional claims of prosecutorial misconduct. We affirm.

FACTS

Appellant David Ronald Anderson met D.R.'s grandmother, S.P., in 2004, and they began a relationship which lasted the rest of S.P.'s life. D.R. met appellant at around age ten, and, several years later, appellant was at the hospital when D.R gave birth to her daughter A.R. After S.P.'s death, appellant maintained a relationship with her family and helped care for D.R.'s children. Appellant often stayed at D.R.'s apartment because of his housing instability. A.R. knew appellant as "grandpa David."

On February 24, 2018, D.R.'s cousin J.M. watched D.R.'s children while D.R. was at work. Appellant came to visit, and J.M. noticed that appellant smelled like alcohol. Appellant eventually lay down on the kitchen floor, while J.R. remained in another room. Later, J.M. entered the kitchen to find six-year-old A.R. lying on the kitchen floor on her back with her shirt pulled up above her stomach and her pants unbuttoned. J.M. saw appellant lying on the kitchen floor facing A.R., rubbing her stomach.

J.M. sent a text message to D.R., who was still at work, alerting D.R. to what she had seen. D.R. called A.R. and directed A.R. to go to the bathroom and speak with D.R.there. After asking if she would get in trouble, A.R. stated that appellant licked her vagina. A.R. later stated in a forensic interview with W.K. at CornerHouse that "grandpa David" licked her vagina, using anatomical dolls for demonstration. A.R. made similar statements at trial.

Respondent State of Minnesota charged appellant with first-degree criminal sexual conduct in violation of Minn. Stat. § 609.342, subd. 1(a) (2018). The district court convicted appellant following a jury trial and sentenced him to 144 months imprisonment, with credit for 475 days served. This appeal follows.

DECISION

I. The prosecutor did not commit misconduct in closing arguments.

Appellant argues that the prosecutor committed misconduct in closing arguments by arguing facts not in evidence when discussing "typical" challenges in proving child sexual-abuse cases, and "psychological and behavioral dynamic[]" reasons why children's statements alleging abuse can be inconsistent. We are not persuaded.

Appellant's counsel did not object at closing arguments, so we apply modified plain-error review. See State v. Ramey, 721 N.W.2d 294, 297 (Minn. 2006). Appellant bears the initial burden of proving that the prosecutor committed an error which is plain. State v. Carridine, 812 N.W.2d 130, 146 (Minn. 2012). An error is plain if it is "clear or obvious," State v. Waiters, 929 N.W.2d 895, 901 (Minn. 2019) (quotation omitted), or contrary to caselaw or standards of conduct. Ramey, 721 N.W.2d 294 at 302. If appellant meets his burden, the state must then show that the plainly erroneous conduct did not affect appellant's substantial rights. Carridine, 812 N.W.2d at 146. An error affects appellant'ssubstantial rights if there is a reasonable likelihood that the conduct significantly affected the jury's verdict. Ramey, 721 N.W.2d at 302.

This court examines a prosecutor's closing arguments as a whole, rather than examining selective phrases "that may be taken out of context or given undue prominence." State v. Walsh, 495 N.W.2d 602, 607 (Minn. 1993). Prosecutors may present legitimate arguments based on the evidence and argue reasonable inferences based on that evidence, but may not speculate without factual basis or "misstate the evidence." State v. Peltier, 874 N.W.2d 792, 804-05 (Minn. 2016). Neither may they make arguments that "inflame the passions or prejudices of the jury." State v. Duncan, 608 N.W.2d 551, 556 (Minn. App. 2000), review denied (Minn. May 16, 2000). We hold prosecutors to the highest ethical standards in sexual-abuse cases. State v. Jahnke, 353 N.W.2d 606, 611 (Minn. App. 1984).

A. The prosecutor did not introduce evidence outside of the record.

1. The first challenged argument

Appellant first alleges error in a series of arguments by the prosecutor discussing the "typical" case of sexual abuse and what the "best evidence" in that case may look like.

In closing, the prosecutor noted, "[c]ases involving the sexual abuse of children can be particularly challenging to prove. Abuse like this usually takes place in secret, behind closed doors, without witnesses around." She argued that this is a "unique" case because the jury heard from witness J.M., who ultimately alerted D.R. that the interaction between appellant and A.R. "wasn't right." The prosecutor added that this "is the best evidence you're ever going to get in a case like this."

In alleging error, appellant takes the prosecutor's arguments out of context. The prosecutor noted that A.R. consistently stated that appellant licked her vagina, immediately before his argument that this case has the "best evidence." The prosecutor limited her argument discussing the "best evidence" to the evidence from A.R. describing appellant's actions. The prosecutor therefore clearly argued that the victim's statements identifying sexual abuse provided the best evidence in this case. The supreme court has found that a victim's identifying statement can be "the most powerful evidence of [] guilt." State v. Valtierra, 718 N.W.2d 425, 438 (Minn. 2006). We find no error in the prosecutor noting that child abuse usually occurs without witnesses and subsequently arguing that this case is "unique" in that respect.

2. The Second Challenged Argument

Appellant next argues that the prosecutor's argument regarding manipulating children discusses children generally and cites evidence outside the record.

The prosecutor argued:

Kids are easily confused, they are easily manipulated. Kids want to please adults most of the time and they're intimidated by strangers and strange environments. That's what makes them vulnerable and that's why the CornerHouse protocol includes that ongoing process of building a rapport with kids. That's why forensic interviewers don't ask leading questions that suggest the answer that end in words like right, because if they did kids would just agree with what the adults want them to say. Kids will adopt information that adults are suggesting to them, especially if the adult is unknown to them or seems authoritative.

(emphasis added). Appellant's recitation of error omits the italicized portions of the prosecutor's argument. When read as a whole, the prosecutor tied this to forensicinterviewer W.K's trial testimony discussing CornerStone's interview protocols. W.K discussed interviewing practices with children and how narrative approaches elicit more accurate information from children. He discussed how asking for information from children in an authoritative manner can lead to poor answers and that research shows that interviewing children in a less-authoritative manner leads to information that "seems to be more accurate." Based on W.K's testimony, the prosecutor did not speculate without a factual basis on the nature of children generally. We therefore find no error by this argument.

B. The prosecutor did not inflame the passions or prejudices of the jury.

Appellant next argues that the prosecutor committed misconduct by making repeated appeals to the jury's passions in closing argument that were likely prejudicial.

Appellant rests his argument on the prosecutor's statement that:

On February 24, 2018, A.R. was victimized by a person she loved and trusted, a person whose senses and inhibitions and judgment had likely been dulled by being hammered, as he put it, to use his word. She's a kid. She is easily confused, she is easily dismissed. He is counting on that. He's counting on you dismissing her because she thinks and talks and remembers and answers questions like a kid.

Appellant contends that this language is similar to that used in a number of cases (the Hennepin County cases) in which this court determined that certain language repeatedly used by the Hennepin County Attorney's office in child sexual-abuse cases constituted plain error. (citing Garcia v. State, No. A18-1907, 2019 WL 3545814 (Minn. App. Aug. 5, 2019), review denied (Minn. Oct. 29, 2019); State v. Danquah, No. A18-1581, 2019 WL 3293790 (Minn. App. July 22, 2019), review denied (Minn. Oct. 15, 2019); State v.Ciriaco-Martinez, No. A18-1415, 2019 WL 2999783 (Minn. App. July 1, 2019).) Appellant's reliance on these cases is misguided.

It is true that, in the closing arguments of each of the Hennepin County cases, the words "dismiss" and "counting on" were used. However, in each case the prosecutor argued that men...