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This opinion will be unpublished and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
A16-1752

State of Minnesota,
Respondent,

vs.

William Mcsho Hall, II,
Appellant.

Filed September 25, 2017
Affirmed
Florey, Judge
Concurring specially, Cleary, Chief Judge

Hennepin County District Court
File No. 27-CR-16-4303

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

Michael O. Freeman, Hennepin County Attorney , Jean Burdorf, A ssistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Ap pellate Public Defender, Rochelle R. Winn, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Cleary, Chief Judge; Kirk, Judge; and Florey, Judge.
U N P U B L I S H E D O P I N I O N
FLOREY, Judge
On appeal from his conviction of first-de gree criminal sexual conduct, appellant
argues that the prosecutor committed prejudicial misconduct by (1) eliciting evidence that
appellant is the author of a book of erotic fiction; (2) characterizing appellant’s defense as
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a “trick”; and (3) deliberately eliciting bad- act evidence that had pr eviously been ruled
inadmissible by the district court. Because the alleged prosecutorial misconduct did not
affect appellant’s substantial rights, we affirm.
FACTS
In August 2014, appellan t William Hall moved to Minnea polis with his girlfriend
J.H. and her three daughters, 16-year-old Sk., 14-year-old, C.H., and 11-year-old Sa.
Appellant’s relationship with J.H. eventually began to deteriorate, and by August 2015, the
relationship was over and appella nt had moved out of the hous e. Several months later,
C.H. informed her mother and her therapist, M.B-K., that she had been sexually abused by
appellant in December 2014. J.H. reported this information to law enforcement, and
appellant was charged with two counts of first-degree criminal sexual conduct.
At trial, C.H. testified th at during the evening of December 28, 2014, while J.H. was
in Michigan attending her grandfather’s funera l, appellant “hung out ” with C.H. and her
sisters and provided them with alcohol. According to C.H., appellant played games with
the girls, and she drank “a glass” of “[r]um mixed with coke.” At the end of the evening,
appellant asked the girls if they wanted to sl eep “upstairs” in the master bedroom. C.H.
testified that Sk. “thought it was weird, so sh e went down to her room” in the basement.
But C.H. and Sa. agreed to sleep with appellant in his king-sized bed.
C.H. testified that sometime during the ni ght, she awoke to fi nd appellant rubbing
her stomach. According to C.H., appellant th en “started moving his hand down . . . into
[her] underwear” and began “rubbing” her vagina before putting “his finger inside [her]
vagina.” C.H. testified that when she “pulle d his hand away,” appellant “kind of sat up”
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and told her to “meet him downstairs in a couple of minutes.” After appellant left the room,
C.H. went downstairs to “see wh at he want[ed].” Appellant to ld C.H. that he was a “bad
person” and that “he shouldn’t have done that,” but then asked C.H. if he could “taste” her.
C.H. testified that she understood appellant’s inquiry to mean “oral sex,” and that she told
him “no” and then went to bed in her room.
Sk. testified that she awoke on December 29 to find C.H. sleeping in her bedroom.
Sk. wondered what happened and went upstairs and saw appellant “sitting at the foot of the
bed.” According to Sk., appellant looked “troubled” and told her that he “messed up.” Sk.
testified that appellant first told her that he “woke up from a dream” and was “touching”
C.H. But appellant then changed his story and told Sk. that “he woke up to [C.H.] touching
him.” Appellant also told Sk. not to “tell people.” Later that day, Sk. asked C.H. if she
had touched appellant. C.H. started crying and denied touching appellant.
M.B-K. testified that she met with C.H. on January 14, 2015. C.H. told M.B-K.
that, while her mother was away attending a funeral, C.H. and he r sisters drank with
appellant and that she slept in the same bed as appellant that night. C.H. also told M.B-K.
that “she woke up in the mi ddle of the night” to find appe llant “rubbing her stomach.”
M.B-K. testified that although C.H. was “v ery adamant” that nothing happened, M.B-K.
suspected that C.H. was withholding information.
Appellant took the stand in his defense and acknowledged drinking alcohol with
C.H. and Sk. on December 28, 2014. But according to appellant, it was Sa. and C.H. who
asked to sleep with him in the master bedroom. Appellant also claimed that after he went
to sleep, he woke up with C.H. “kind of ha lf on my shoulder, half on my chest” and her
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arm “over my stomach.” Appellant stated that he “felt uncomfortable” because he thought
he was having a dream that C.H. was “touching [his] penis.” Appellant testified that he
told C.H. that letting her sleep in his bed was a “mistake” and that he was “not mad at” her,
but “that can’t happen.” Appellant denied touching C.H.’s vagina.
The jury found appellant gu ilty of the charged offenses. The district court then
sentenced appellant to 144 months in prison. This appeal followed.
D E C I S I O N
Appellant argues that the prosecutor committed misconduct by (1) eliciting
irrelevant and prejudicial evidence about a book appellant had authored; (2) disparaging
the defense during closing arguments; and (3) introducing certain text messages during the
cross-examination of appellant that had previously been ruled inadmissible. But appellant
agrees that he did not object to the alleged prosecutorial misconduct. Accordingly, we
apply a modified plain-error test. State v. Mosley, 853 N.W.2d 789, 801 (Minn. 2014). To
prevail, appellant must establish that there was an error and that the error is plain. State v.
Ramey, 721 N.W.2d 294, 302 (Minn. 2006). If such an error is established, the burden
then shifts to the state to s how that the plain error did not affect appellant’s substantial
rights. Id. “If all three prongs of the test are met, we may correct the error only if it
seriously affect[s] the fairness, integrity, or public reputatio n of judicial proceedings.”
State v. Peltier, 874 N.W.2d 792, 804 (Minn. 2016) (quotations omitted).
I. Questions about appellant’s book
Generally, “[a]ll relevant evidence is admissible,” and “[e]vidence which is not
relevant is not admissible.” Minn. R. Evid. 402. But relevant evidence “may be excluded
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if its probative value is substantially outweighed by the danger of unfair prejudice.” Minn.
R. Evid. 403.
During the prosecutor’s cr oss-examination of appella nt, the prosecutor elicited
testimony from appellant about statements contained in a book of erotic fiction authored
by appellant and titled A Taste of Distraction. Appellant argues that it was misconduct for
the prosecutor to elicit this testimony because the evidence was irrelevant and was used to
improperly attack his character.
We disagree. During cross-examination of appellant, the prosecutor asked appellant
to read an excerpt from his book in which he “refers to oral sex on a woman as tasting her.”
This evidence is relevant because C.H. testifie d that after the alleged digital penetration,
appellant asked her if he c ould “taste” her. The excerpts from appellant’s book establish
that appellant used that language when referring to oral sex, and they supported C.H.’s odd
statement about oral sex. See State v. Holscher , 417 N.W.2d 698, 702-03 (Minn. App.
1988) (holding sex toys seized from the s cene of a sexual assault were relevant and
admissible even though they were not used against the victim); review denied (Minn. Mar.
18, 1988). Therefore, it was not plain error for the prosecutor to question appellant about
the contents of his book.
II. Closing arguments
It is well settled that the prosecution has the right to vigorously argue its case.
Peltier, 874 N.W.2d at 804. A prosecutor also has latitude to respond to the defendant’s
arguments. State v. Jackson, 773 N.W.2d 111, 123 (Minn. 2009). But a prosecutor is not
permitted to “disparage” or “belittle” a defense. Peltier, 874 N.W.2d at 8 04. This court
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reviews closing arguments in their entiret y when determining wh ether prosecutorial
misconduct occurred. State v. Vue, 797 N.W.2d 5, 15 (Minn. 2011); see State v. Jackson,
714 N.W.2d 681, 694 (Minn. 2006) (noting that this court should “consider the closing
argument as a whole rather than focus on particular phrases or remarks that may be taken
out of context or given undue prominence” (quotations omitted)).
During closing arguments, the prosecutor argued that
If [the state’s witnesses] all got up there and told the exact same
story with all the exact same details, well then you’d know
they’re lying because you’d know they put it together. But
know the reality is we’re ta lking about something that
happened two years ago, a trau matic event. And we have
witnesses that only experienced various portions of it. So don’t
fall for that trick.

Appellant argues that the prosecutor engaged in misconduct during closing
arguments by “represent[ing] to the jury that [appellant’s] defense was . . . a trick.” We
agree. In State v. Jones, the supreme court concluded that the prosecutor’s “reference to
the defense strategy as an ‘old trick’ was an error that was plain.” 753 N.W.2d 677, 692
(Minn. 2008); see also State v. Salitros, 499 N.W.2d 815, 818 (Minn. 1993) (stating that it
is “clearly improper for a prosecutor to sugg est that the arguments of defense counsel are
part of some sort of syndrome of standard arguments that one finds defense counsel making
in cases of this sort”). Therefore, we conclude that under Jones, the prosecutor’s reference
to appellant’s defense as a “trick” was plain error.
III. Admission of text messages
A prosecutor may not seek a conviction at any cost. See Salitros, 499 N.W.2d at
817. Rather, a prosecutor “is a minister of ju stice whose obligation is to guard the rights
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of the accused as well as to enforce the rights of the public,” and to ensure that a defendant
receives a fair trial. Ramey, 721 N.W.2d at 300 (quotation omitted). Violations of
established standards of conduct, including “orders by a district court” and “attempting to
elicit or actually eliciting clearly inadmissi ble evidence may constitute [prosecutorial]
misconduct.” State v. Fields, 730 N.W.2d 777, 782 (Minn. 2007).
Prior to trial, the state sought to introd uce several text messages sent to J.H. by
appellant. The district court admitted some of the text messages and excluded others. But
during cross-examination of appellant, the prosecutor asked appe llant if he “ever
threaten[ed] to kill [J.H.]?” After appellant replied, “No,” the prosecutor asked appellant
to read the following text message that had pr eviously been ruled in admissible, in which
appellant told J.H.: “F-ck another d-ck and don’t get paid, I will f-cking kill you. I’m not
joking.” The prosecutor then asked appellant to read another text message he sent to J.H.
in which he stated: “If you f-ck him, you better bring me some money, at least a hundred.”
Appellant argues that the prosecutor’s reference to these text messages was
misconduct because the prosecutor was “well-aw are” that the messag es had been ruled
inadmissible, and the evidence was improperly used to attack his character by accusing
appellant of being a pimp. Conversely, the st ate argues that the re ference to the text
messages was not error because appellant “effectively opened the door to the questioning
about his threat to kill J.H.” when he answered “no” to the prosecutor’s question on cross
examination if had ever threated to kill J.H.
Opening the door occurs when one party by introducing certain
material creates in the opponent a right to respond with
material that would otherwise have been inadmissible. The
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doctrine is essentially one of fairness and common sense, based
on the proposition that one party should not have an unfair
advantage and that the factfinder should not be presented with
a misleading or distorted representation of reality.

State v. Bailey, 732 N.W.2d 612, 622 (Minn. 2007) (citations and quotations omitted).
We conclude that the prosecutor’s use of the text-messages during cross-
examination of appellant is very troub ling and constitutes misconduct because the
prosecutor never asked the district court if a ppellant had opened the door and if the text
messages could be used to impeach appellant. It was not for the prosecutor to determine
whether appellant “opened the door” so that the text messages, which had previously been
ruled inadmissible, could be used as impeac hment evidence. Instead, that was a decision
that rested exclusively with the district court. If the pr osecutor felt that appellant had
“opened the door” when he answered “no” to the prosecutor’s question as to whether
appellant had “ever threaten[ed] to kill [J.H.],” then it was the prosecutor’s duty to request
permission of the district court to impeach a ppellant with a statement that the court had
previously ruled inadmissible. This could have easily been accomplished through a motion
to the district court out of the jury’s presen ce, requesting permission to use the statement
for impeachment based on th e claim that appellant had “opened the do or.” But by
proceeding in the manner that he did, the prosecutor did not give the district court that
opportunity. Had the district court been given that opportunity, the court might have denied
the request to impeach with that statement. After all, the alleged inconsistent statement
was elicited by the prosecutor during cross-examination when the prosecutor knew that the
proof of inconsistency had already been ruled inadmissible.
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Alternatively, the district court might have found that the door had been opened as
to the threat to kill, but that the other information in the text that J.H. “f-cked another d-ck
and [did not] get paid for it” was inadmissible because it was unrelated to the threat to kill
and unfairly prejudicial. Again, by proceedi ng as he did, the pr osecutor deprived the
district court of that opportunity.
Moreover, the record reflects that the method of impeachment was improper.
Rather than directly questioning appellant abou t the threat to kill in the text message,
thereby giving appellant an opportunity to admit or deny the statement, the prosecutor had
appellant read the entirety of the previously ruled inadmissible message. By doing this,
the jury heard not only the impeaching por tion of the message, but also inadmissible
character evidence suggesting that appellant wa s a pimp. Only if appellant had denied
sending the text should he have been asked to read the text, or at least those portions of the
text that the district court might have allowe d. And finally, the record reflects that in
addition to improperly referenc ing the text messages, the prosecutor followed up by
improperly attacking appellant’s character by accusing appellant of being a pimp. Under
these circumstances, the prosecutor’s conduct clearly constitutes prosecutorial misconduct.
IV. Prejudice
Appellant argues that he is entitled to a new trial because the alleged prosecutorial
misconduct affected his substantial rights. In addressing this question, we consider (1) the
strength of the state’s evidence; (2) “the pe rvasiveness of the er roneous conduct”; and
(3) whether the defendant “h ad an opportunity to rebut any improper remarks.” Peltier,
874 N.W.2d at 805-06.
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The record reflects that the alleged e rroneous conduct was not pervasive. The
prosecutor briefly questioned appellant about the inadmissible text messages and did not
mention them during closing arguments. Moreover, the content of the text messages was
not central to the state’s case. See id. at 806 (concluding that prosecutorial misconduct did
not affect substantial rights when the “prosecutor did not unduly emphasize, or repeat” any
of the improper remarks, and none of the mi sconduct “was central to the State’s case”).
And the use of the word “trick” during clos ing arguments was an isolated incident,
comprising only one word in the pr osecutor’s entire closing argument. See Jones, 753
N.W.2d at 692-93 (concluding that the prosecutor’s plain error of referencing the defense
strategy as an “old trick” was not prejudicial because it was “not a significant part of the
State’s closing argument,” the evidence agains t the defendant “was very strong,” and the
defense had the opportunity to correct the prosecutor’s co mments in his own closing
argument).
The record also reflects that appellant had the opportunity to rebut the alleged
misconduct, and did so by briefly ackn owledging that “nasty text messages” 1 were sent,
but imploring the jury to consider their context. Moreover, the evidence against appellant
was compelling. C.H.’s testimony was consistent and corroborated by J.H., Sk., and M.B-
K. Finally, none of the alleged misconduct was particularly relevant to the state’s case,
and there is no reasonable likelihood that the outcome of the case would have been different
in the absence of the alleged misconduct. See Ramey, 721 N.W.2d at 302 (stating that an

1 Notably, there were several text messages between appellant and J.H. that were admitted
into evidence.
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error is prejudicial if there is a reasonable likelihood that the absence of the misconduct in
question would have had a significant effect on the outco me of the case). Accordingly,
appellant is not entitled to a new trial.
Affirmed.
CS-1
CLEARY, Chief Judge (concurring specially)
While I agree with the major ity that appellant is not en titled to a new trial, I write
separately to underline and emphasize how th e prosecutor’s misconduct in this case
needlessly jeopardized the state’s case and, if the evidence against appellant wasn’t so
compelling, would likely have resulted in a new trial.
The text-messages at issue had been rule d inadmissible. Period. Those highly
inflammatory messages, one in particular, remained inadmissible unless and until the court
decided otherwise. The court never got the chance. The pr osecutor took it upon himself
to plow ahead without a court ruling becaus e the prosecutor had determined that the
appellant had “opened the door” to such questions. (A sidebar occurred after the jury had
heard the damaging character evidence that had been ruled inadmissible.) As the majority
suggests, this use of these text-messages is “very troubling.” It is not clear why the defense
did not object to this line of questioning at the start, or why the court did not get involved
when one text message, previously ruled inadmissible, was read in its entirety to the jury,
both the impeaching portion of the message as well as th e irrelevant and highly
inflammatory inadmissible character evidence. This type of sleight of hand and overkill is
deeply offensive to our justice system and could very well have resulted in a mistrial.
I vote with the majori ty to affirm becaus e of the strength of the state’s evidence;
because the inadmissible text messages were not mentioned in closing argument; and
because the appellant had the opportunity, such as it was, to respond to the misconduct.
This was a close call only because the prosec utor endangered the conviction with his
misconduct.