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This opinion will be unpublished and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
A16-0864

State of Minnesota,
Respondent,

vs.

Brittany Ann Vacko,
Appellant.

Filed March 20, 2017
Affirmed
Larkin, Judge

Ramsey County District Court
File No. 62-CR-15-2417

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

John Choi, Ramsey County Attorney, Thomas R. Ragatz, Assistant County Attorney,
St. Paul, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, St. Paul, Amie Penny Sayler,
Special Assistant Public Defender, Jessica Kometz (certified student attorney), Bassford
Remele, P.A., Minneapolis, Minnesota (for appellant)

Considered and decided by Connolly, Presiding Judge; Larkin, Judge; and Reyes,
Judge.
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U N P U B L I S H E D O P I N I O N
LARKIN, Judge
Appellant challenges her convictions of perjury and forgery, arguing that the district
court violated her right to present a complete defense, that the state engaged in
prosecutorial misconduct, and that the cumulative effect of the purported trial errors
deprived her of her right to a fair trial. We affirm.
FACTS
Respondent State of Minnesota charged appellant Brittany Ann Vacko with two
counts of perjury and one count of forgery. The complaint alleged that Vacko falsified a
phone-log exhibit and made false statements regarding her address during a hearing on her
earlier petition for a harassment restraining order (HRO) against R.T. A jury found Vacko
guilty of all charges. The district court sentenced Vacko to a 15-month stayed prison term
and placed her on probation for five years. Vacko appeals.
D E C I S I O N
I.
Vacko contends that “[t]he district court abused its discretion when it sustained the
state’s objections to relevant testimony, which prevented [her] from being able to present
a full defense.” Specifically, she argues that the district court did not allow her to present
her version of the facts.
The Due Process Clauses of the United States and Minnesota Constitutions afford
criminal defendants “a meaningful opportunity to present a complete defense.” State v.
Quick, 659 N.W.2d 701, 712 (Minn. 2003) (quotations omitted). But a defendant does not
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have a right to introduce irrelevant evidence. State v. Crims, 540 N.W.2d 860, 866 (Minn.
App. 1995), review denied (Minn. Jan. 23, 1996). Relevant evidence means evidence that
has “ any tendency to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it would be without the
evidence.” Minn. R. Evid. 401. Irrelevant evidence is not admissible. Minn. R. Evid. 402.
Evidentiary rulings “will not be reversed absent a clear abuse of d iscretion.” State
v. Amos, 658 N.W.2d 201, 203 (Minn. 2003) . An appellant must show that the district
court abused its discretion and that the appellant was prejudiced. Id. Appellate courts
review evidentiary rulings for an abuse of discretion , “even when it is claimed that the
exclusion of evidence deprived the defendant of his constitutional right to present a
complete defense.” State v. Penkaty, 708 N.W.2d 185, 201 (Minn. 2006).
Vacko argues that the district court erroneously excluded her testimo ny regarding
why she had multiple home addresses. The state alleged that Vacko used a false St. Paul
address in her HRO petition. Vacko claimed that she was transitioning from the St. Paul
address to a Forest Lake address. She testified as follows until the state objected that her
testimony was narrative:
Q: Can you explain why you were living [at the St . Paul
address] in early 2014?
A: Because my son he has autism spectrum disorder and he
has trouble with change and transitions. He had, sorry, he had
a hard time transitioning. He would have meltdowns, bang his
head on the floor, he wouldn’t eat. It was a huge change from
living with [J.] for a while so that was where we were staying
most of the time until we would transition him slowly into the
house in Forest Lake.
Q: How long did that transition take?
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A: The house in Forest Lake it took—he got better in about,
about nine months, about eight to nine months it took.
Q: And was it after that eight, nine month period that you just
moved in all at once?
A: No, it was, it was a long period of transitioning like
slowly. Well we had our household stuff there mostly lik e
common house stuff but my son’s comfort items and our basic
living stuff was at [J.’s] but we would bring his comfort stuff
to the place in Forest Lake. We would maintain consistency
because that is what is key with him. He needs consistency.
He’s ver y rigid. He needs routine. He’ s very rigid and is
routine based so we would bring that stuff. Eventually we
would cook a meal there. We spent a couple of nights there—
and this was all throughout while he was getting extra
treatment and therapy for his autism so it was.
[Prosecutor]: I’m going to object, Your Honor move to strike.
It’s becoming a narrative.
THE COURT: Sustained.

The district court instructed the jury to disregard the last sentence of Vacko’s testimony.
The district court has discretion to prohibit narrative testimony and did not abuse its
discretion by sustaining the state’s objection. See Minn. R. Evid. 611(a) (“The court shall
exercise reasonable control over the mode and order of interrogating witnesses . . . so as to
(1) make the interrogation and presentation effective for the ascertainment of the
truth . . . .”).
Vacko also argues that the district court erred by sustaining objections on relevancy
grounds when Vacko’s attorney asked, “[O]ther than slowly transitioning . . . your son, into
the new living space what else did you do to address his needs ,” and when her attorney
asked why her son did not “take” to a particular apartment. Vacko argues that her
credibility was at issue and that her testimony that she had multiple addresses due to her
son’s special needs was relevant to the jury’s credibility determination.
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The district court allowed Vacko to generally testify that her multiple addresses
stemmed from her attempt to meet her son’s special needs. More specific test imony
regarding her son’s individual needs and why her son did not acclimate to a particular
apartment was not relevant. The district court did not abuse its discretion by excluding
such testimony.
Vacko further argues that the district court improperly excluded testimony intended
to explain why she was unaware of her husband’s multiple phone numbers . She testified
as follows:
Q: Do you know what phone number your husband had at
that time?
A: No. We’ve had multiple phone number s from
harassments so.
[Prosecutor]: Move to strike the answer should have just been
no.
THE COURT: Sustained. . . . .
Q: Why can’t you recall what your husband’s cell phone
number was?
A: Because we’ve had a lot of different—
[Prosecutor]: Objection, irrelevant.
THE COURT: Sustained.

Vacko argues that the reason she did not know her husband’s phone number “was
an important piece of information that the jury needed to . . . assess her credibility.” Given
Vacko’s previous attempt to present irrelevant details regarding her son’s special needs,
we understand the district court’s reluctance to allow Vacko to explain that her lack of
recall was due to harassment that she and her husband allegedly had suffered. We therefore
cannot say that the district court abused its discretion.
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II.
Vacko contends that “[t]he state committed prosecutorial misconduct throughout
[her] trial that played a significant role in the jury’s decision” to find her guilty.
This court’s standard of review for pros ecutorial-misconduct claims depends on
whether the defendant objected at trial. State v. McDaniel, 777 N.W.2d 739, 749 (Minn.
2010). If the defendant objected, this court follows a two-tiered approach. Id. For serious
misconduct, “the misconduct is harmless beyond a reasonable doubt if the verdict rendered
was surely unattributable to the error,” whereas less serious misconduct is harmless unless
“the misconduct likely played a substantial part in influencing the jury to convict.” State
v. Powers, 654 N.W.2d 667, 678 (Minn. 2003) (quotation omitted).
A defendant who fails to object ordinarily forfeits the right to appellate review.
State v. Ture , 353 N.W.2d 502, 516 (Minn. 1984) . However, this court may review
unobjected-to prosecutorial misconduct if plain error is shown. Minn. R. Crim. P. 31.02;
State v. Ramey , 721 N.W.2d 294, 299 (Minn. 2006) . A plain -error claim based on
prosecutorial misconduct has three requirements: (1) the prosecutor’ s unobjected -to act
must constitute error, (2) the error must be plain, and (3) the error must affect the
defendant’s substantial rights. Ramey, 721 N.W.2d at 302. The defendant has the burden
of showing error that is plain. Id. If plain error is established, the burden shifts to the state
to show that the error did not affect the defendant’s substantial rights. Id.
Badgering and Were-they-lying Questions
Vacko argues that the state impermissibly badgered her during cross-examination,
relying on State v. Beecroft, which states, “in determining whether the State has infringed
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on a defendant’s constitutional right to present a complete defense by interfering with a
witness,” appellate courts consider “whether the government actor’s interference with a
witness’s decision to testify was substantial.” 813 N.W.2d 814, 839 (Minn. 2012)
(quotation omitted). Substantial interference “occurs when a government actor actively
discourages a witness from testifying through threats of prosecution, intimidation, or
coercive badgering.” Id. (quotation omitted).
Vacko argues that the state continually asked her the same questions multiple times
during cross-examination, “in an attempt to coerce [her] into admitting that she knew [a]
document at issue . . . was forged.” Vacko concludes, “This constitutes coercive
badgering, which substantially interfered with [her] right to present a complete defense.”
Given that Vacko testified at trial and continued to testify after the alleged badgering, we
fail to see how the persistent questioning constitutes badgering under Beecroft. See id. at
840 (concluding that state actors had substantially interfered with two potential witnesses
by making it too risky to their careers to testify at trial).
Vacko also argues that the state’s cross-examination included improper “were they
lying” questions. “Were they lying” questions ask the defendant to comment on the
truthfulness of another witness’s testimony and are generally inappropriate. See State v.
Morton, 701 N.W.2d 225 , 233, 235 (Minn. 2005) ( concluding that the state had asked
“were they lying” questions by asking the defendant, “[S]o Janet Spencer wasn’t telling
the truth when she was on the stand?” and “so Catherine Cox is not telling the truth?”);
State v. Pilot, 595 N.W.2d 511, 517-18 (Minn. 1999) (noting that the state had asked the
defendant to “comment on the veracity of three of the state’s witnesses” before concluding
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that the prosecutor’s “were they lying” questions were permissible ). These questions are
“perceived as unfairly giving the jury the impression that in order to acquit, it must
determine that the witness whose testimony contradicts the defendant’s testimony is lying.”
Morton, 701 N.W.2d at 233. Here, the state did not ask Vacko to comment regarding the
truthfulness of any witness’s testimony. Thus, the were-they-lying doctrine is inapplicable.
Improper Closing Argument
Vacko argues that the “entirety of the State’s closing argument is rife with improper
comments that belittle [her ].” In determining whether the state committed prosecutorial
misconduct during a closing argument, this court looks to the “the closing argument as a
whole, rather than to selected phrases and remarks.” State v. Graham , 764 N.W.2d 340,
356 (Minn. 2009) (quotation omitted). “The determination of the propriety of a State’s
closing argument is within the sound discretion of the [district] court.” Id. (quotation
omitted).
Vacko first asserts that “[t]he state committed serious misconduct when it
disparaged [Vacko] and her defense.” The state has the right to vigorously present its case
and may argue that the evidence does not support particular defenses. State v. Davis, 735
N.W.2d 674, 682 (Minn. 2007) . “[T]he state’s argument is not required to be colorless .”
Id. However, the state “may not belittle [a] defense either in the abstract or by suggesting
that the defendant raised the defense because it was the only one with any hope for
success.” State v. Peltier, 874 N.W.2d 792, 804 (Minn. 2016). The state also cannot argue
that a defense is the type of defense raised when “nothing else will work.” State v. Griese,
565 N.W.2d 419, 427 (Minn. 1997) (quotation omitted) . For example, the prosecutor
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cannot argue, “What kind of defense could you raise in a drug case?” and suggest, “What
might work? Okay. So there was cocaine in my bag, but I didn’t put it there and I don’ t
know how it could have gotten there. ” See State v. Williams , 525 N.W.2d 538, 548 -49
(Minn. 1994); see also State v. Salitros, 499 N.W.2d 815, 818 (Minn. 1993) (concluding
that the prosecutor improperly argued: “What do you typically hear about a rape case? You
hear about the defense attorney putting the victim on trial. They do that because they focus
the attention away from the client”).
Vacko asserts that the following statements by the prosecutor were impermissibly
disparaging: “[Vacko] cannot possibly believe that this is true ,” “It did not happen and
there is no way that [Vacko] was somehow mistaken about that,” and “[Vacko] did not
believe the statement to be true.” These statements are not comparable to the
impermissibly disparaging statements in the caselaw.
Vacko next asserts that the prosecutor improperly stated his personal opin ion
regarding her credibility. A prosecutor may not “give [his] own opinion about the
credibility of a witness in closing argument.” State v. Mayhorn , 720 N.W.2d 776, 791
(Minn. 2006). This rule prevents “exploitation of the influence of the prosecutor’s office.”
State v. Blanche, 696 N.W.2d 351, 375 (Minn. 2005) (quotation omitted). However, the
prosecutor may argue that particular witnesses were or were not credible. State v. Fields,
730 N.W.2d 777, 785 (Minn. 2007).
Vacko complains that the prosecutor repeatedly indicated she was a liar and not
believable. Vacko argues that the “most concerning instance” was the statement, “[Vacko]
understands the psychology on how to persuade. This is what is kind of scary here is s he
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understands the bigger the lie the more persuasive it is.” Vacko’s complaints are without
merit because the prosecutor did not state a personal opinion regarding her credibility .
Instead, he permissibly argued why the jury should not believe her.
Lastly, Vacko asserts that the state improperly shifted the burden of proof in its
closing argument by stating, “Let’s give [Vacko] the benefit of the doubt and say the phone
is in the Vacko family, okay .” She argues that “[b]y saying this to the jury, the State
insinuated that Ms. Vacko had the responsibility of proving her innocence.” Vacko did not
object to the statement during trial . We therefore review for plain error. See Ramey, 721
N.W.2d at 302 (an appellate court review s unobjected-to trial error s, including
prosecutorial misconduct, for plain error).
The state’s “misstatement of the burden of proof is highly improper and constitutes
misconduct.” State v. Martin, 773 N.W.2d 89, 105 (Minn. 2009) (quotation omitted). The
state improperly shifts the burden of proof when it implies that a defendant has the burden
of proving her innocence. Id. Misstatements of the burden of proof are curable with final
jury instructions. State v. Race, 383 N.W.2d 656, 664 (Minn. 1986) (concluding that the
allegedly improper statements by the prosecutor were mitigated because the “trial court, in
its final instructions, reiterated that the burden of proving guilt rests with the state and that
the defendant has no burden of proving innocence”).
The prosecutor’s use of the phrase “benefit of the doubt” might confuse a jury
because “doubt” suggests a connection to “beyond a reasonable doubt.” However, the
district court instructed the jury before closing arguments that the presumption of
innocence “ remains with the defendant unless and until the defendant has been proven
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guilty beyond a reasonable doubt” and that “the burden of proving guilt is on the state.”
The district court also instructed the jury after closin g arguments that “if an attorney’s
argument contains any statement of law that differs from the law I give you disregard the
statement.” In Race, the supreme court concluded that similar instructions mitigated any
misstatements by the prosecutor regarding the burden of proof. 383 N.W.2d at 664.
Considering the prosecutor’s closing argument as a whole and the district court’s
correct instructions regarding the burden of proof, Vacko has not shown that the
prosecutor’s single “benefit of the doub t” statement constitutes plain error . See Graham,
764 N.W.2d at 356 (stating that the reviewing court considers the prosecutor’s closing
argument as a whole). She is therefore not entitled to relief under the plain-error standard.
III.
Vacko contends that “the collective effect of [the] errors is unmistakable: [she] was
deprived of a fair trial.” The cumulative effect of numerous errors may deprive a defendant
of her right to a fair trial. Mayhorn, 720 N.W.2d at 792. Because Vacko has not shown
any error, there are no errors to aggregate, and Vacko’s cumulative error claim fails.
IV.
In Vacko’s reply brief, she “moves to strike ” several factual assertions from the
state’s brief, arguing that they are “wholly irrelevant” and are “a blatant attempt to convince
this Court that [she] is a liar.”
The Minnesota Rules of Civil Appellate Procedure govern civil and criminal
appeals. Minn. R. Civ. App. P. 101. Rule 127 states that “[u]nless another form is
prescribed by these rules, an application for an order or other relief shall be made by serving
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and filing a written motion for the order or relief .” Minn. R. Civ. App. P. 127. Because
Vacko did not serve and file a written motion , her request to strike is not properly before
this court, and we do not consider it.
Affirmed.