State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A16-0026

State of Minnesota,
Respondent,

vs.

Romego Jewel Young,
Appellant.

Filed May 1, 2017
Reversed and remanded
Smith, Tracy M., Judge

St. Louis County District Court
File No. 69HI-CR-13-822

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Mark S. Rubin, St. Louis County Attorney, Jeffrey M. Vlatkovich, Assistant County
Attorney, Hibbing, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Roy G. Spurbeck, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Smith, Tracy M., Presiding Judge; Hooten, Judge; and
Reilly, Judge.
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U N P U B L I S H E D O P I N I O N
SMITH, TRACY M., Judge
In this appeal from his conviction of third-degree assault, appellant Romego Jewel
Young asserts that the district court plainly erred in permitting respondent State of
Minnesota to elicit testimony regarding the state’s unsuccessful efforts to procure the
presence at trial of the victim, a nontestifying witness. Because admitting such evidence
was a plain error affecting Young’s substantial rights, we reverse and remand.
FACTS
On the afternoon of October 25, 2013, a neighbor heard Young and his girlfriend,
M.M., arguing outside their house. According to the neighbor, Young was trying to get
away from M.M. while M.M. followed him in her car. M.M. eventually bumped Young
with her car and quickly drove away. The neighbor called 911 and reported the incident.
Later that evening, M.M. came to the neighbor’s house and pounded on the door.
According to the neighbor, M.M. was crying and “hollering ‘Help me, help me, he broke
my arm.’” The neighbor saw Young walking through her yard as if he were following
M.M., but he eventually turned and left. The neighbor brought M.M. inside her house.
According to the neighbor, M.M. said Young had “grabbed her and slammed her onto the
floor and then he choked her,” then “took her arm and jammed it onto the floor” when she
“tried getting loose.” The neighbor testified that M.M. had red marks on her neck and what
appeared to be a bite mark on her cheek, was holding one of her arms, and seemed to be in
pain. The neighbor again called 911.
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Hibbing Police Officer Daniel Mooers arrived at the neighbor’s house. According
to Officer Mooers’s testimony, M.M. was crying hysterically and holding her elbow, and
had red marks on her neck and some sort of mark on the side of her face.
An ambulance arrived and brought M.M. to a hospital. According to the doctor’s
testimony, M.M. told the doctor that she had been grabbed by her neck and bitten in her
right temple, that her left elbow had been twisted behind her back, and that she had felt her
arm break and had fallen on her arm. The doctor testified that M.M. had a mark on her
neck that was consistent with having been grabbed by the neck. The doctor also testified
that M.M. had a red mark on her temple, but she could not confirm that it was a bite mark,
and that M.M. had a fractured left elbow.
A three-day jury trial was held. The district court permitted the neighbor to testify
about what M.M. said had happened under the excited-utterance exception to the hearsay
rule. See Minn. R. Evid. 803(2). The doctor was permitted to testify about what M.M. told
her had happened under the medical-diagnosis hearsay exception. See id., (4). The doctor
testified that the fracture in M.M. ’s elbow was consistent with someone “putting her arm
behind her back and then her falling on it. She would have had to fall on this area to break
it.” The doctor further testified that a person could have received that kind of injury from
falling to the side with her arm in a particular position if there was direct force to the elbow
upon landing. The doctor also testified that the same type of fracture could result if another
person grabbed her wrist and jammed her elbow down, if the person was strong enough
and could get enough force.
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M.M. was subpoenaed but did not appear at trial. On the Friday of trial, the state
asked the district court to allow Officer Mooers to testify about a statement M.M. made to
him, relying on the forfeiture-by -wrongdoing hearsay exception. 1 The district court
decided to continue the trial until the following Monday, when, the court said, the state
could present evidence that Young wrongfully procured M.M.’s unavailability. The
district court further stated that, if M.M. did not appear on Monday, the trial would go
forward and the state would be permitted to explain to the jury why M.M. was not
testifying. The district court then told the jury that “one of the State’s witnesses, who has
been notified to be here, um, is not here and, ah, we don’t know why and, ah, that’s, um,
[M.M.].”
M.M. did not appear on Monday—the third and final day of trial. The state did not
pursue the forfeiture-by -wrongdoing issue. With the permission of the district court,
however, the state called a police officer to testify that he had served a subpoena on M.M.
by leaving it with M.M.’s mother at M.M.’s residence. The state also called an employee
of the county attorney’s office whose job involves helping prosecutors to get witnesses into
court. She testified that she and the police had made several unsuccessful attempts to
contact and find M.M. after she did not appear for trial. Young’s trial attorney did not
object.

1 Under the forfeiture-by -wrongdoing exception, a hearsay statement may be admitted
against a party who wrongfully caused the declarant’s unavailability with the intent to
prevent the declarant from testifying. See Minn. R. Evid. 804(b)(6).
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The defense called the mother of one of Young’s children, who testified about two
instances in August and September 2013 in which she and M.M. got into physical
altercations because M.M. was angry about the woman’s relationship with Young. The
woman testified that she became pregnant with Young’s child while Young was in a
relationship with and living with M.M.
Young testified that M.M. was hurt and embarrassed when she found out in August
2013 that Young might be the father of another woman’s child. Young testified that, earlier
on the day of the alleged assault, he and M.M. had arguments about the other woman’s
child and whether Young was the father. Young testified that the argument escalated as
they reached their house, where Young exited the car and M.M. sped away with the door
ajar. But shortly thereafter, M.M. returned to the house and hit Young with the car. Young
testified that he fell asleep in the house and awoke to the sound of M.M. banging on the
door, yelling, screaming, and entering the house. Young testified that he did not grab
M.M.’s neck, twist her arm behind her back, slam her arm on the ground, or bite her.
Young speculated that M.M. might have hurt her arm when she was trying to push through
the door. In a police-interview recording that the state played at trial, Young stated that
M.M. sometimes enga ges in self -harm and that what others described as a bite mark on
M.M.’s face actually resulted from M.M. hitting herself.
In closing arguments, the state did not mention M.M.’s absence or its attempts to
get her to testify. Young’s trial counsel explained that it is up to the jur y to assess the
credibility of witnesses but that “we don’t get to make any of those assessments about
[M.M.]” because she did not appear at trial. Young’s trial counsel also noted that no one
6
had the opportunity to ask M.M. abo ut the inconsistencies between her statements to the
neighbor and to the doctor, or to ask for more details. Young’s trial counsel stated to the
jury, “The problem is that you guys don’t get to assess any of that and when it comes down
to it, Mr. Young has the benefit of the doubt.”
The jury found the defendant guilty of third-degree assault and misdemeanor
domestic assault, and not guilty of domestic assault by strangulation. The district court
imposed the presumptive sentence of 24 months in prison for the third-degree assault.
Young appeals.
D E C I S I O N
In the absence of an objection at trial, we review the admission of evidence for plain
error. State v. Strommen, 648 N.W.2d 681, 686 (Minn. 2002). Under the plain-error test,
the defendant must show (1) error (2) that is plain and (3) that affected the defendant’s
substantial rights. State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998); Minn. R. Crim. P.
31.02. “An error is plain if it is clear or obvious, and usually this is shown if the error
contravenes case law, a rule, or a standard of conduct.” State v. Davis, 735 N.W.2d 674,
681 (Minn. 2007) (quotation omitted). An error affects the defendant’s substantial rights
if the prejudice “forms the basis for a reasonable likelihood the error substantially affected
the verdict.” State v. Manthey, 711 N.W.2d 498, 504 (Minn. 2006). If the defendant shows
all three elements of the plain-error test, we assess whether reversal is necessary “to ensure
7
fairness and the integrity of the judicial proceedings.” State v. Prtine, 784 N.W.2d 303,
314 (Minn. 2010).2
I. Allowing the state to introduce testimony about its attempts to secure M.M.’s
testimony was a plain error.
Young argues that the district court plainly erred in allowing the state to introduce
evidence of its efforts to procure the presence and testimony of M.M. Rule 403 of the
Minnesota Rules of Evidence requires the exclusion of evidence if its probative value is
substantially outweighed by the danger of unfair prejudice. Rulings on evidentiary matters
are within the district court’s discretion and will be overturned on appeal only if the district
court abused its discretion. Griller, 583 N.W.2d at 742-43.
It is well established that “[i]t is improper conduct for a prosecutor to refer to a
witness who was not called.” State v. Page, 386 N.W.2d 330, 336 (Minn. App. 1986),
review denied (Minn. June 30, 1986). In State v. Shupe, the state commented in its closing
argument that it did not call several of the witnesses it mentioned during its opening
statement due to unexpected illness. 293 Minn. 395, 396, 196 N.W.2d 127, 128 (1972).
The Minnesota Supreme Court held that commenting on witnesses who had not been called
was prejudicial error, reasoning that it could not “assume that the jury was not influenced

2 The plain-error test for evidentiary errors, under which the burden lies with the defendant
to show all three elements of the test, is the standard Young uses on appeal. The state, on
the other hand, refers to the plain-error test for prosecutorial misconduct, under which the
burden shifts to the state to prove that a plain error did not affect the defendant’s substantial
rights. See State v. Ramey, 721 N.W.2d 294, 302 (Minn. 2006). Because the asserted error
is that the district court admitted inadmissible evidence, we use the evidentiary plain-error
test. Even under this standard, which is less favorable to appellant, appellant has met his
burden of demonstrating that the error affected his substantial rights.
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by the prosecutor’s reference to the asserted fact that there was other testimony bearing
upon defendant’s guilt which he was prevented from submitting.” Id. Because it is unfairly
prejudicial for a prosecutor to imply that an absent witness would have provided evidence
bearing on guilt, it is error for a district court to admit testimony about a witness’s absence
for that purpose. Minn. R. Evid. 403; see also State v. Henderson, 620 N.W.2d 688, 702
(Minn. 2001) (“It is improper for a prosecutor to ask questions that are calculated to elicit
or insinuate an inadmissible and highly prejudicial answer.”).
The state argues that Shupe does not apply because the state did not suggest that
M.M.’s testimony would have aided the state’s case. The prosecutor noted in his opening
statement that M.M. “changes her story” and that she told police that she fabricated the
allegations. The prosecutor also said in his opening statement that there are “reasons to
believe what [M.M.] said initially is what happened,” and that “at the end of this, you’re
going to have to decide whether or not what [M.M.] told officers and [the neighbor] on
October 25th is what happened, or did she manufacture all the evidence.” The jury did not
receive any evidence that M.M. recanted; the jury only heard about M.M. changing her
story from the prosecutor’s comments during opening statement s. The prosecutor’s
reference to M.M.’s conflicting stories does not negate the prejudicial effect of the evidence
regarding the state’s efforts to obtain her testimony. Calling two witnesses solely to testify
about the state’s efforts to procure M.M.’s testimony carries an implication that the state
believed M.M.’s testimony would have supplemented evidence of guilt and bolstered the
state’s case. See Shupe, 293 Minn. at 396, 196 N.W.2d at 128. In conjunction with the
hearsay statements admitted through other witnesses, the evidence of the state’s efforts to
9
subpoena M.M. created the impression that a prosecut ion witness with direct knowledge
of the crime would have inculpated Young had she testified.
The state also attempts to distinguish Shupe because here the prosecutor did not
mention M.M.’s absence in his closing argument and, moreover, Young’s trial counsel did.
We do not agree that the prosecutor’s decision not to bring up the witness’s absence again
during closing argument negates the prejudice of testimony on the subject from two
witnesses. Furthermore, defense counsel’s decision to remind the jury t hat it had no
opportunity to evaluate M.M.’s credibility was a reasonable defensive strategy after the
jury heard incriminating hearsay statements attributed to M.M. and heard state witnesses
emphasizing that the state tried hard to get M.M. to testify . Defense counsel’s comment
about M.M.’s credibility has no bearing on whether it was erroneous to allow the state to
present evidence of its attempts to get her to testify.
The state also cites State v. Thomas to argue that the admission of the evidence was
not plain error. 305 Minn. 513, 232 N.W.2d 766 (1975). In Thomas, the supreme court
concluded that the prosecutor’s statement in closing argument —that he tried to avoid
duplication in calling witnesses —did not require reversal because the statement did not
contain a “prejudicial inference of supplementary evidence of guilt.” Id. at 517, 232
N.W.2d 769. Here, however, there is no indication that M.M.’s first-hand account of what
happened would have been duplicative of other evidence, and the state did not suggest as
much to the jury when it offered the evidence.
It may be permissible to present evidence explaining a witness’s absence for certain
purposes. For example, a court might review evidence of the state’s failed efforts to
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produce a witness to determine whether that witness was “unavailable” for purposes of the
confrontation clause and hearsay exceptions. See State v. King, 622 N.W.2d 800, 807-08
(Minn. 2001). But the state has not demonstrated a permissible purpose here. The state
apparently intended to explain to the jury why a witness the jury expected to hear from was
not there, but Shupe makes it clear that explaining the absence of a witness mentioned in
opening statements is not a sufficient reason for the state to comment on a witness’s
absence. See Shupe, 293 Minn. at 396, 196 N.W.2d at 128.
Minnesota case law is clear that a prosecutor may not comment on a witness who is
not called except in limited circumstances not present here. Shupe, 293 Minn. at 396, 196
N.W.2d at 128; Page, 386 N.W.2d at 336. Although the issue generally arises in the
context of prosecutorial misconduct rather than evidentiary rulings, we see no reason to
conclude that introducing witness testimony regarding a state’s efforts to find a
nontestifying witness is any less improper than a prosecutor mentioning the same
information in closing argument. We therefore conclude that the district court abused its
discretion and plainly erred by allowing the prosecutor to introduce evidence of the state’s
efforts to secure M.M.’s presence at trial. Griller, 583 N.W.2d at 740.
II. The plain error affected Young’s substantial rights.
Substantial rights are affected if the error was prejudicial and affected the outcome
of the case. Griller, 583 N.W.2d at 741. Plain error is prejudicial if there is a “reasonable
likelihood” that the absence of the error would have had a significant impact on the jury’s
verdict. Id. When evaluating the effect on the verdict, we consider “the strength of the
evidence against the defendant, the pervasiveness of the improper suggestions, and whether
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the defendant had the opportunity to (or made efforts to) rebut the improper suggestions.”
Davis, 735 N.W.2d at 682.
The state argues that Young’s rights were not affected because the evidence of
Young’s guilt was “overwhelming.” The Minnesota Supreme Court in Davis concluded
that the state met its burden to show that the prosecutor’s comments did not affect the
defendant’s substantial rights where the state’s evidence was “substantial and compelling
and included [the defendant’s] admission” that he had shot the victims while attempting to
rob them. Id . Similarly, in State v. Dobbins , the court concluded that the state met its
burden to show that the prosecutor’s statements were not prejudicial because witness
testimony and forensic evidence “overwhelmingly” indicated that the defendant committed
the charged crime. 725 N.W.2d 492, 513 (Minn. 2006).
The evidence that M.M. was injured may be “overwhelming,” but the evidence that
it was Young who inflicted the injuries is not. Unlike in Davis and Dobbins, in this case
there is no admission or forensic evidence tying Young to M.M.’s injuries. The evidence
supporting the state’s case consists of photos of the injuries, testimony that M.M. appeared
to be injured and in pain, testimony that M.M. said Young inflicted the injuries, and
testimony that M.M. and Young had been arguing.
The state’s case heavily relied on the neighbor’s testimony and the 911 call, which
were based on what M.M. allegedly told the neighbor after the incident. The hearsay
statements presented b y the neighbor and the doctor described somewhat inconsistent
stories. According to the neighbor, M.M. said Young “took her arm and jammed it onto
the floor”; but the doctor testified that M.M. told her Young twisted her arm behind her
12
back and then she fell on her elbow. These inconsistent accounts of what happened from
a nontestifying declarant do not amount to overwhelming evidence of guilt. Furthermore,
the record is not devoid of exculpatory evidence. The record contains evidence that M.M.
was angry with Young and therefore may have been motivated to fabricate the allegations
against him, evidence that M.M. has a history of self-harm and therefore may have caused
her own injuries, and Young’s testimony that he did not cause the injuries.
Even though there may have been enough evidence to support the guilty verdict, the
evidence was not overwhelming, and there is a reasonable likelihood that the state’s
implications about the potential testimony of M.M., a key missing witness, had a
substantial effect on the verdict. See Manthey, 711 N.W.2d at 504. We therefore conclude
that allowing the state to present evidence of its efforts to get M.M. to testify was plain
error affecting Young’s substantial rights.
III. The error should be addressed to ensure fairness and the integrity of the
judicial proceedings.
When plain error affecting substantial rights is shown, “the appellate court then
assesses whether it should address the error to ensure fairness and the integrity of the
judicial proceedings.” Griller, 583 N.W.2d at 740. By calling witnesses to testify about
the significant efforts the state expended attempting to procure M.M.’s presence and
testimony at trial, the state improperly gave the jury the impression that M.M. would have
testified to additional evidence of guilt and strengthened the state’s case against Young.
The district court’s plainly erroneous decision to allow the state to present such evidence
compromised the fairness and integrity of the proceedings. We conclude that in order to
13
ensure fairness and the integrity of the proceedings, it is necessary to reverse the conviction
and remand so Young may be granted a new trial. Id.
Reversed and remanded.