State of Minnesota, Respondent,

This opinion will be unpublished and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

STATE OF MINNESOTA
IN COURT OF APPEALS
A16-0224

State of Minnesota,
Respondent,

vs.

Jason Edward Banks,
Appellant.

Filed January 22, 2019
Affirmed
Cleary, Chief Judge

Anoka County District Court
File No. 02-CR-13-8670

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

Anthony C. Palumbo, Anoka County Attorney, Kelsey R. Kelley, As sistant County
Attorney, Anoka, Minnesota (for respondent)

Gary R. Wolf, Wolf Law Office, Minneapolis, Minnesota (for appellant)

Considered and decided by Bjorkman, Presiding Judge; Cleary, C hief Judge; and
Worke, Judge.
U N P U B L I S H E D O P I N I O N
CLEARY, Chief Judge
Appellant Jason Edward Banks filed this direct appeal followin g the district court’s
entry of a judgment of convic tion, arguing that he is entitled to a new trial because the

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prosecutor committed misconduct by improperly injecting race into the trial. Because we
conclude that the error did not affect Banks’s substantial rights, we affirm.
FACTS
On a winter night, Banks was driving his taxi cab when he picked up a patron, L.G.,
from a bar at approximately 2:30 a.m. A security guard arranged for L.G. to be taken home
and paid the cab fare with his own money. According to Banks, on the way to L.G.’s
house, L.G. rubbed his shoulders and repeatedly asked him to ha v e s e x w i t h h e r . H e
protested at first, but eventua lly, he pulled over and climbed into the backseat. Banks
admitted that he digitally penet rated L.G. but alleged he was u nable to have sexual
intercourse because there was not enough room in the backseat a nd L.G. could not fully
remove her clothes.
L.G., however, testified that she had been drinking alcohol ear lier, and while she
remembers the beginning of the trip, at some point she lost consciousness. When she woke
up, they were in a wooded area and Banks was allegedly in the backseat, engaging in sexual
intercourse with her. L.G. stated that she struggled and told Banks “no” but was unable to
get away because Banks was holding her down and she suffers fro m a back disability
following several surgeries on her spine. As a result of the struggle, L.G. suffered bruising
on her arms and thigh, as well as injuries to her genitalia.
The following morning, L.G. relayed the incident to a friend who convinced her to
go to the hospital. A sexual assa ult and forensic nurse examin ed L.G., documented her
injuries, and took swabs of her genitals to test for DNA. Alth ough L.G. initially declined
to speak with the police, several days later she reported the event.

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Banks was arrested and charged with multiple counts of criminal sexual conduct.
In a statement he gave to police, Banks initially denied penetration. When asked to provide
a DNA sample, Banks stated for the first time that he had ejacu lated during the alleged
consensual sexual encounter.
During the trial’s opening statements, the prosecutor told the jury “[t]he only part
of the cab ride [L.G.] remembered is waking up in the backseat of a cab helpless, her pants
down to her knee boots, and a blac k man’s penis in her vagina.” Banks is a black man;
L.G. is a white woman.
During its case-in-chief, the state presented numerous witnesses, including L.G., her
f r i e n d s a n d f a m i l y m e m b e r s w h o s p o k e w i t h h e r a f t e r t h e i n c i d e nt, the nurse, the
investigating detectives, and the forensic scientists who tested L.G.’s blood and the swabs
taken during the medical examination. Banks was the only witne ss for the defense. The
jury found Banks guilty on all counts.
Banks filed this direct appeal from the judgment of conviction. W e s t a y e d t h e
appeal so Banks could pursue pos tconviction relief. His postco nviction petition was
ultimately unsuccessful and we reinstated this appeal.1

1 The district court vacated Banks’s convictions and granted his request for a new trial
based on ineffective assistance o f counsel (unrelated to the pr osecutor’s statement). The
state appealed the district court’s order. This court reversed the district court’s
postconviction order and reinstated Banks’s convictions and sentence. Banks v. State, A17-
0062, 2018 WL 817288, at *2, *5 (Minn. App. Feb. 12, 2018), review denied (Minn. Apr.
25, 2018).

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D E C I S I O N
Banks argues that the prosecutor committed misconduct during hi s opening
statement by stating that the only part of the cab ride L.G. re members is “a black man’s
penis in her vagina.” Defense counsel did not object to the statement and the district court
did not intervene sua sponte.
Because Banks did not object to the statement in the district court, his prosecutorial
misconduct claim is reviewed under the modified plain-error standard. State v. Ramey, 721
N.W.2d 294, 302 (Minn. 2006). Under the modified plain-error s tandard, the defendant
must first establish (1) error, (2) that is plain. Id. “An error is ‘plain’ if it is clear or
obvious.” State v. Peltier, 874 N.W.2d 792, 799 (Minn. 2016). “Typically, a ‘plain’ error
contravenes case law, a rule, or a standard of conduct.” Id. The burden then shifts to the
state to show that the misconduct did not affect the defendant’s substantial rights. Ramey,
721 N.W.2d at 302. If the state cannot do so, then the court may correct the error only if it
seriously affects the fairness, i ntegrity, or public reputation of the judicial proceedings.
Peltier, 874 N.W.2d at 804.
The use of the phrase “a black m an’s penis in her vagina” const itutes plain error
without question. It is well established that a prosecutor may not inflame the jury’s
passions and prejudices by injecting race into a trial when rac e is irrelevant. State v.
Jackson, 714 N.W.2d 681, 694 (Minn. 2006). In this case, there was no permissible reason
to inject race as identity was not at issue. By drawing attent i o n t o B a n k s ’ s r a c e , t h e
prosecutor suggested that the crime was more horrific because of the alleged perpetrator’s
race. The prosecutor also invited the jury to consider racist ideas about the impropriety of

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sex between a white woman and black man. This statement is hig hly inappropriate and
likely to distract the jury from considering only the evidence presented at trial. Cf. State v.
Rogan, 984 P.2d 1231, 1238-40 (Haw. 1999) (concluding the statement “some black,
military guy on top of your daughter” is “every mother’s nightmare” was an impermissible
appeal to racial prejudice).
In ruling on Banks’s postconvic tion petition, the district cour t concluded that the
injection of race by the prosecutor was unintentional. While an “intentional” use of racist
language is highly objectionabl e, so is the “unintentional” use o f s u c h l a n g u a g e . T h e
prosecutor had an affirmative obligation to assure that Banks received a fair trial, free from
improper racial considerations. See State v. Fields , 730 N.W.2d 777, 782 (Minn. 2007)
(“The prosecutor is an officer of t h e c o u r t c h a r g e d w i t h t h e a ffirmative obligation to
achieve justice and fair adjudication, not merely convictions.”). Additionally, Minnesota
courts are firmly committed to removing racial bias from the courtroom, and the issue must
be addressed whenever improperly raised. State v. Cabrera, 700 N.W.2d 469, 475 (Minn.
2005). As officers of the court, prosecutors must demonstrate the same commitment and
avoid any appearance of racial b ias. A failure to do so—intent ional or not—can have a
serious effect on the integrity and public reputation of the ju dicial proceedings. All
members of the judicial branch have an obligation to maintain the integrity of the court by
requiring attorneys to refrain from manifesting bias or prejudice during proceedings before
the court. Minn. Code Jud. Conduct Rule 2.3(C).
Having concluded that there is plain error, we must now determi ne if the state has
shown that the error did not affect Banks’s substantial rights. “A plain error affects a

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defendant’s substantial rights if it was prejudicial and affect ed the outcome of the case.”
State v. Parker , 901 N.W.2d 917, 926 (Minn. 2017) (quotation omitted). “An er ror is
prejudicial if there is a reasona ble likelihood that the error had a significant effect on the
jury’s verdict.” Id. (quotation omitted). When evaluating the effect on substantial rights,
the court considers the pervasiveness of improper suggestions, the strength of the evidence
against the defendant, and whether the defendant had the opportunity to rebut any improper
remarks. Peltier, 874 N.W.2d at 805-06.
We believe that the nature of the prosecutor’s comment makes th e issue of
substantial rights a close call, as there is always a serious concern that racial comments can
factor into a jury’s decision. See State v. Varner, 643 N.W.2d 298, 305 (Minn. 2002). And
“the improper injection of race ‘can affect a juror’s impartiality and must be removed from
courtroom proceedings to the fullest extent possible.’” Cabrera, 700 N.W.2d at 475
(quoting Varner, 643 N.W.2d at 304).
Nevertheless, after considering the factors outlined by the sup r e m e c o u r t , w e
conclude that there is no reasonable likelihood that the error had a significant effect on the
jury. The error was not pervasive. It was a single sentence in a six and a half page opening
statement that kicked off a trial where testimony was taken for three days. See Peltier, 874
N.W.2d at 806 (concluding there was no effect on the defendant’s substantial rights when
the “incidents of alleged misconduct were isolated, together comprising approximately one
page of a 39-page closing argument”); State v. Davis, 735 N.W.2d 674, 682 (Minn. 2007)
(holding prosecutor’s misconduc t did not affect defendant’s sub stantial rights where
misconduct covered one of 64 pages of testimony); State v. Powers, 654 N.W.2d 667, 679

7
(Minn. 2003) (concluding two improper sentences in a closing argument that amounted to
over 20 transcribed pages did not deprive the defendant of a fa ir trial). This is the only
statement that Banks alleges wa s misconduct, and the prosecutor d i d n o t d w e l l o n ,
emphasize, or repeat the statement. See State v. Wren, 738 N.W.2d, 378, 392 (Minn. 2007)
(determining there was no prosecutorial misconduct where the pr osecutor did not
emphasize or dwell on the objectionable statements).
Additionally, as we held in Bank s’s postconviction appeal, the state presented
substantial evidence of Banks’s guilt. See Banks, 2018 WL 817288, at *8. L.G. testified
as to the alleged assault, and her testimony was consistent with the statement she gave to
the nurse and the police. The nurse testified that during her examination of L.G. after the
assault, she found several injuries to L.G.’s external and inte rnal genitalia that were
consistent with L.G.’s version of the incident and with forced penetration or attempted
forced penetration. By contrast, Banks’s version of the events repeatedly changed and was
inconsistent with the testimony of other witnesses. And althou gh Banks claimed that he
was unable to have sexual interc ourse with L.G., semen found on L.G.’s cervix was
consistent with Banks’s DNA.
Finally, the prosecutor’s comment was made during opening stat ements which gave
Banks ample opportunity to respond. Indeed, defense counsel la ter interjected race in an
attempt to undermine the victi m’s credibility. As this court h as previously stated,
misconduct in opening statements is less likely to play a substantial role in influencing the
jury. State v. Montgomery, 707 N.W.2d 392, 400 (Minn. App. 2005). Having carefully
reviewed the record, as appalled as we are by the prosecutor’s statement, we conclude that

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based on the considerations outlined in Peltier, the error did not affect Banks’s substantial
rights.2
Affirmed.

2 The supreme court has reserved to itself “the [supervisory] au thority in the appropriate
case to reverse [based on prosecutorial misconduct] . . . witho ut regard to whether the
defendant was prejudiced.” Ramey, 721 N.W.2d at 303. Given the incendiary and graphic
nature of the prosecutor’s racial remark, which, intentionally made or not, essentially
invited the jury to accept that a white rape victim suffers an especially aggravated injury
when her rapist is black—a strik ingly classic reminder of the d ark history of race-based
jury poisoning—this may be such a case.