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This opinion will be unpublished and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
A17-0189

State of Minnesota,
Respondent,

vs.

Autumn Blakey,
Appellant.

Filed February 5, 2018
Affirmed
Larkin, Judge

Chisago County District Court
File No. 13-CR-14-23

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

Janet Reiter, Chisago County Attorney , Beth A. Beaman, Jacob C. Fischmann, Assistant
County Attorneys, Center City, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Lydia Maria Villalva Lij ó,
Assistant Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Smith, Tracy M. , Presiding Judge; Larkin, Judge; and
Hooten, 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 his conviction of third -degree criminal sexual conduct ,
arguing that the evidence at his trial was insufficient to sustain the jury’s guilty verdict,
that the district court abused its discretion by limiting the testimony of his expert witness,
and that the prosecutor engaged in misconduct during closing argument. We affirm.
FACTS
Respondent State of Minnesota charged appellant Autumn Blakey with third-degree
criminal sexual conduct, alleging that he sexually penetrated C.S. while C.S. was
physically helpless. The case was tried to a jury. Prior to trial, Blakey moved the district
court to allow a defense expert to testify regarding C.S.’s alcohol concentration at the time
of the alleged offense. The district court denied the motion. Later, the district court
reconsidered and ruled that the expert could testify for the limited purpose of establishing
C.S.’s alcohol concentration at different times throughout the night in question , but not
regarding the physiological effects of the alcohol.
At trial, C.S. testified that she has known Blakey since his uncle married her mother
when she was a child. C.S. thinks of Blakey as an uncle. She testified that they spent time
together while she was growing up, and the state introduced photographs of C.S. and
Blakey attending a car show together when she was six years old. When C.S. was 17, she
went on a one -week road trip with Blakey in the s emi-trailer truck that he drove. When
C.S. was 21, Blakey travelled to Las Vegas with C.S. and other family members. C.S.
testified that she and Blake y did “[n]ormal family stuff.” C.S. also testified that three or
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four years before the trial, she lived with Blakey for two months when she needed a safe
place to stay. C.S. testified that she had never engaged in consensual sexual activity with
Blakey.
On the evening of November 23, 2013, C.S. went to a bar with Blakey and some of
her friends. At trial, C.S. estimated that she consumed four drinks at the bar , as well as
some shots, but she could not remember how many alcoholic beverages she consumed.
She testified that she introduced Blakey as her uncle that night and that they st ayed at the
bar until 2:00 a.m. After the bar closed, she took a cab with Blakey back to his hotel. She
accompanied him to the hotel because it offered a free breakfast and a pool , and because
she was not safe to drive and did not have a car. C.S. felt ill, so Blakey called the cab driver
who had driven them to the hotel and asked the driver to get them food from a fast-food
restaurant. C.S. consumed the food, and Blakey rubbed her back until she fell asleep. C.S.
testified she did not know what time she fell asleep.
When C.S. woke up, her pants were down at her ankles and Blakey’s fingers were
inside her vagina. She testified that she had not removed her pants and that she never gave
Blakey permiss ion to touch her in that manner . C.S. testified that when she woke up,
Blakey tried “to tell [her] it was [her] idea.” She testified that she felt “hurt and scared
because he’s family.”
C.S. locked herself in the hotel room’s bathroom, yelled, and refused to come out
until law enforcement arrived. The responding officer took C.S. to an emergency room for
a sexual-assault evaluation. Hospital staff cut off C.S.’s underwear, removed a tampon
from her vagina, and swabbed her vagina for samples. Test results showed evidence of
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semen in C.S.’s vagina, suggesting that Blakey had penetrated C.S.’s vagina with his penis.
C.S. did not recall having intercourse with Blakey.
Officer Rebecca Steele is the officer who responded to the hotel . Officer Steele
testified that C.S. reported that she fell asleep and that when she woke up, Blakey’s fingers
were inside her. Officer Steele took a statement from C.S., which was played for the jury.
C.S. told Officer Steele:
[W]e came back here and I fell asleep. He was waking
me up saying I should cuddle like this and was next to me and
I fell asleep and I woke up to him (inaudible) his hand and I
told him to step away or I would scream (inaudible) in self
defense and I went into the bathroom and wouldn’t unlock it
until I had the proper authorities.

C.S. also told Off icer Steele that when she woke up, she was on her back with her pants
around her ankles and Blakey’s fingers were inside her.
A hotel employee, S.T., testified that she was working at the hotel on the night of
the incident. She testified that a man checked out of the hotel between 5:15 and 5:20 a.m.
and asked her to go to his room and reassure the person there that she was the only one
there. S.T. testified that she went to the room and encountered a woman who had locked
herself in the bathroom. S.T. t estified that she never saw the woman, but that the woman
sounded like she had been crying. S.T. confirmed that someone had delivered food from
a fast-food restaurant to the hotel and that two people came to the door to get food from a
car.
Blakey testified that he went to the bar with C.S. and that when the bar closed, he
and C.S. took a cab to a fast-food restaurant and waited in line at the drive-through. Then,
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they went to the hotel, where they ate their food and purchased some drinks from the
vending machines. Blakey testified that he and C.S. had consensual intercourse in their
hotel room. Blakey further testified that, after the intercourse, they watched a movie,
talked, and then got into an argument about C.S.’s friends. Blakey testified that the
argument became so heated that C.S. locked herself in the bathroom and refused to come
out. Blakey testified that he asked a person at the hotel’s front desk to speak with C.S. and
left for his home. Blakey denied that he put his fingers in C.S.’s vagina.
Blakey’s expert witness testified that, assuming an average burn -off rate, C.S.’s
alcohol concentration would have been about 0.07 grams per hundred milliliters at 5:00
a.m. He testified that at 4:00 a.m., C.S. would have an alcohol concentration of almost
0.09, and that at 3:00 a.m., she would have an alcohol concentration of 0.10.
The jury found Blakey guilty of third -degree criminal sexual conduct. The district
court entered judgment of conviction and sentenced Blakey to serve a 48-month prison
term. Blakey appeals.
D E C I S I O N
I.
Blakey contends that, “[a]s a matter of law, the evidence was insufficient to support
the jury’s verdict that [he] knew or had reason to know that C.S. was ‘physically helpless.’”
When considering a challenge to the sufficiency of the evidence to sustain a guilty verdict,
an appellate court conducts a careful “ review of the record to determine whether the
evidence and reasonable inferences drawn therefrom, viewed in a light most favorable to
the verdict, were sufficient to allow the jury to reach its verdict.” Staunton v. State, 784
6

N.W.2d 289, 297 (Minn. 2010) (quotation omitted). This court will not disturb the jury’s
verdict if, acting with due regard for the presumption of innocence and the requirement of
proof beyond a reasonable doubt, the jury could reasonably conclu de that the defendant
was proven guilty of the charged offense. Bernhardt v. State , 684 N.W.2d 465, 476 -77
(Minn. 2004).
The jury found Blakey guilty of third -degree criminal sexual conduct under Minn.
Stat. § 609.344, subd. 1(d) (2012), which provides that a person is guilty of this offense if
he engages in sexual penetration with another person and “knows or has reason to know
that the [other person] is menta lly impaired, mentally incapacitated, or physically
helpless.” Sexual penetration includes “any intrusion however slight into the genital or
anal openings . . . of the complainant’s body by any part of the actor’s body.” Minn. Stat.
§ 609.341, subd. 12 (2) (2012). The state argued that C.S. was physically helpless.
“Physically helpless” means that a person is : “(a) asleep or not conscious, (b) unable to
withhold consent or to withdraw consent because of a physical condition, or (c) unable to
communicate nonconsent and the condition is known or reasonably should have been
known to the actor.” Minn. Stat. § 609.341, subd. 9 (2012).
Blakey challenges the state’s proof regarding the requisite mental state. Because
the state relied on circumstantial evidence to prove Blakey’s mental state, we evaluate the
sufficiency of the evidence using the two-step circumstantial-evidence standard of review.
See Loving v. State, 891 N.W.2d 638, 643 (Minn. 2017) (“[A]s in most cases involving a
state of mind, the State pr oved the element . . . through circumstantial evidence, which
requires us to apply the circumstantial-evidence standard of review.”).
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The first step requires us to determine the circumstances proved. Id. “In
determining the circumstances proved, [appellate courts] disregard evidence tha t is
inconsistent with the jury’s verdict.” State v. Harris, 895 N.W.2d 592, 601 (Minn. 2017).
“[E]ven though verdicts based on circumstantial evidence may warrant stricter scrutiny,
[appellate courts] still construe co nflicting evidence in the light most favorable to the
verdict and assume that the jury believed the State’s witnesses and disbelieved the defense
witnesses.” State v. Tscheu, 758 N.W.2d 849, 858 (Minn. 2008). The second step requires
us to determine whether the circumstances proved are consistent with guilt and inconsistent
with any rational hypothesis other than guilt. Loving, 891 N.W.2d at 643. If a reasonable
inference other than guilt exists, then we will reverse the conviction. Id.
Blakey concedes that the following circumstances were proved:
CS ate and felt sick. She laid down, [he] rubbed her
back, and she fell asleep. When she awakened, [ he] was
digitally penetrating her vagina.
. . . .
CS testified that she did not tell [him] to put his fingers
in her vagina and she did not recall having any other type of
sexual intercourse with [him].

These circumstances are consistent with guilt. Blakey contends that the circumstances
proved also include that C.S. agreed to cuddle with him.
Assuming that these are the circumstances proved, we next determine whether they
are consistent with a reasonable inference other than guilt. Harris, 895 N.W.2d at 600.
Blakey argues that the circumstances do not exclude the rational hypothesis that he and
C.S. engaged in consensual sexual activity: “It is possible from the circumstances proved
8

that C.S. consented by her words and actions [,] . . . that she does not remember that she
consented, and that she fell asleep after having sex.”
“[P]ossibilities of innocence do not require reversal of a jury verdict so long as the
evidence taken as a whole makes such theories seem unreasonable.” State v. Stein , 776
N.W.2d 709, 719 (Minn. 2010) (quotation omitted). Appellate courts “will not overturn a
conviction based on circumstantial evidence on the basis of mere conjecture. ” State v.
Lahue, 585 N.W.2d 785, 789 (Minn. 1998). “[A] defendant is not relying on conjecture or
speculation when the defendant . . . points to evidence in the record that is consistent with
a rational theory other than guilt.” State v. Al-Naseer, 788 N.W.2d 469, 480 (Minn. 2010)
(quotation omitted).
There is no evidence in the record to support Blakey’s hypothesis that C.S.
consented to sexual intercourse, fell asleep, and did not remember consenting after she
woke. Blakey’ s testimony was the s ole basis for his defense that C.S. consented to
intercourse, and Blakey did not testify that C.S. fell asleep after having consensual sexual
intercourse with him. Instead, he testified that he and C.S. had intercourse, watched a
movie, and got into an argument. There was no mention of sleeping. In sum, Blakey’s
hypothesis of innocence is inconsistent with C.S.’s version of events, as well as his own
testimony at trial. Because there is no evidence to support Blakey’s alternative hypothesis
of innocence, it is based on mere conjecture and does not support reversal.
Blakey’s hypothesis of innocence also fails because it does not negate the c riminal
liability that arises from Blakey’s digital penetration of C.S.’s vagina while she was asleep.
Once again, C.S. testified that when she woke up, Blakey was digitally penetrating her
9

vagina. Blakey concedes that this is a circumstance proved, but he does not explain why
this circumstance is not adequate to sustain his conviction of third -degree criminal sexual
conduct. For example, he does not argue that he did not know C.S. was asleep when he
digitally penetrated her vagina. In fact, at trial, h e denied that he digitally penetrated C.S.
Blakey’s digital penetration of C.S.’s vagina while she slept is sufficient to sustain the
jury’s guilty verdict because it establishes that Blakey sexually penetrated a person who
Blakey knew, or had reason to know, was physically helpless. See Minn. Stat. § 609.341,
subd. 9 (“‘Physically helpless’ means that a person is (a) asleep or not conscious . . . .”) ;
Id., subd. 12(2) (Sexual penetration includes “any intrusion however slight into the genital
or anal openings . . . of the complainant’s body by any part of the actor’s body”).
The flaw in Blakey’s arguments regarding C.S.’s physical helplessness is that they
focus on the theory that C.S. was physically helpless due to intoxication. Although the
state argued that theory at trial, the prosecutor also argued that C.S.’s sleeping state alone
satisfied the physically helpless requirement. In fact, the prosecutor told the jury “some of
you might think that she passed out from drinking, some of you might thin k that she fell
asleep, but even if you guys have different thought s about why she was unconscious she
would still be physically helpless.” Blakey’s argument s that C.S. was not physically
helpless due to intoxication and that she did not display signs of intoxication such that he
knew or should have known C.S. was physically helpless are immaterial given the
established fact that Blakey digitally penetrated C.S.’s vagina while she slept.
Also immaterial are Blakey’s argument s that C.S. was not physically helpless
because C.S. “fell asleep” rather than “passed out” and “was able to wake up —and was
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therefore not passed out or unconscious .” The relevant statute does not require that a
person be incapable of regaining consciousness to be physically helpless . It merely
requires that the person be “asleep or not conscious” when the sexual penetration occurred.
See Minn. Stat. § 609.341, subd. 9; Minn. Stat. § 609.344, subd. 1(d).
In sum, the circumstances proved establish that Blakey digitally penetrated C.S.’s
vagina while she was asleep. Although Blakey asserts an alternative hypothesis of
innocence, the record evidence does not support it, and it does not negate Blakey’s guilt
based on C.S.’s sleeping state. Because the evidence was sufficient for the j ury to
reasonably conclude that Blakey was guilty of third-degree criminal sexual conduct, we do
not disturb the verdict.
II.
Blakey contends that the district court abused its discretion by refusing to allow his
expert to testify regarding the signs of intoxication that may be visible at different alcohol-
concentration levels. Expert testimony is admissible if it “will assist the trier of fact to
understand the evidence or to determine a fact in issue.” Minn. R. Evid. 702. “The basic
requirement of Rule 702 is the helpfulness requirement.” State v. Saldana, 324 N.W.2d
227, 229 (Minn. 1982) (quotation omitted). In determining whether testimony is helpful,
courts determine whether the testimony will “add precision or depth to the jury’s ability to
reach conclusions.” State v. Helterbridle, 301 N.W.2d 545, 547 (Minn. 1980).
“The admissibility of expert testimony lies within the sound discretion of the
[district] court.” State v. Hall, 406 N.W.2d 503, 505 (Minn. 1987). On appeal, a district
court’s decision to admit expert testimony will not be reversed unless there has been an
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abuse of discretion. State v. Sandberg, 406 N.W.2d 506, 511 (Minn. 1987). “[A]ny error
in excluding [expert] testimony is subject to the harmless-error analysis.” State v. Hakala,
763 N. W.2d 346, 350 (Minn. App. 2009), review granted (Minn. June 16, 20 09) and
appeal dismissed (Minn. June 1, 2010).
Blakey argues that the proffered expert testimony would have helped the jury
determine whether C.S. was physically helpless at the time of the offense. The district
court held a hearing on Blakey’s motion to allow expert testimony regarding C.S.’s
alcohol-concentration levels and the attendant physiological effects. At the pretrial
hearing, the expert testified that based on C.S.’s test results, and assuming a standard burn-
off rate, he estimated C.S.’s alcohol concentration to be 0.07 grams per hundred milliliters
around 5:00 a.m. and 0.12 at 2:00 a.m. The expert also testified that he has studied the
effects of various alcohol-concentrations levels. At the concentrations he calculated, a 23-
year-old female would show some signs of intoxication, but nothing very profound. He
testified that she might be more talkative and social, might exhibit slurri ng in her speech,
and perhaps show some judgment problems. Finally, he testified that a normal, healthy
individual would not black out in the ranges he calculated.
However, the expert also testified that the ranges he quoted were not based on C.S.’s
individual characteristics . He further testified that he had never met C.S. and had no
information regarding how she processed alcohol. He testified that he “just assumed that
she was a normal, healthy individual” and that “she processed [alcohol] at a n ormal rate.”
He never observed her while she was under the influence. He concluded, “I have no idea
12

how she would process [alcohol] . . . what symptoms she would exhibit at certain alcohol
concentrations.”
The district court ruled that the expert could testify regarding C.S.’s alcohol
concentration between 2:00 a.m. and 5:30 a.m. on the night in question, but not regarding
any characteristics that she might have exhibited. The district court reasoned that the expert
was not allowed “to testify as to how [C.S.] should have acted . . . because he doesn’t have
information for that.”
In its initial ruling denying Blakey’s motion to allow expert testimony, the district
court relied on State v. Frank. 364 N.W.2d 398 (Minn. 1985). In Frank, the supreme court
stated, “Most jurors have some experience with the effects of excessive alcohol
consumption and therefore, in an ordinary case, will not need expert assistance.” Id. at
400. “[E]xpert opinion testimony about the general effects of . . . intoxication is ordinarily
inadmissible because most jurors have some experience with [this] condition[].” State v.
Provost, 490 N.W.2d 93, 103 (Minn. 1992); see also State v. Greenleaf, 591 N.W.2d 488,
504 (Minn. 1999) (concluding that expert testimony “in regard to t he general effects of
alcohol” would not have aided the jury).
Blakey attempts to distinguish this case by asserting that it “was not an ordinary
case,” but he does not persuade us that this case is extraordinary. Because the district
court’s decision finds support in caselaw, we do not discern an abuse of discretion. We
nonetheless note that, because the verdict can be supported without any evidence of
intoxication as explained in section I of this opinion, the district court’s limitation of the
defense expert’s testimony was certainly harmless.
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III.
Blakey contends that he should receive a new trial because the prosecutor engaged
in misconduct during closing argument by arguing that Blakey—in contrast to C.S.—was
not telling the truth and by impugning the defense expert . Because Blakey did not object
to the alleged misconduct, we apply the modified plain -error analysis set forth in State v.
Ramey. 721 N.W.2d 294, 302 (Minn. 2006). The burden is “on the nonobjecting defendant
to demonstrate both that error occurred and that the error was plain .” Id. A plain error is
one that “contravenes case law, a rule or a standard of conduct.” Id. The burden then shifts
to the state to prove that there is no reasonable likelihood that the absence of the misconduct
would have had a significant effect on the jury’s verdict. Id. If a reviewing court concludes
that any prong of the plain -error analysis is not satisfied, the court need not consid er the
other prongs. State v. Brown, 815 N.W.2d 609, 620 (Minn. 2012).
Witness Credibility
“The credibility of a witness is to be determined by the jury. ” State v. Ture , 353
N.W.2d 502, 516 (Minn. 1984). “ An advocate may indeed point to circumstances which
cast doubt on a witness’ veracity or which corroborates his or her testimony, but [she] may
not throw onto the scales of credibility the weight of [her] own personal opinion.” Id. “A
prosecutor’s statements in closing argument become improper vouch ing when the
prosecutor implies a guarantee of a witness’s truthfulness, refers to facts outside the record,
or expresses a personal opinion as to a witness’s credibility.” State v. Smith, 825 N.W.2d
131, 139 (Minn. App. 2012) ( quotation omitted), review denied (Minn. Mar. 19, 2013) .
But it is not improper for a prosecutor “to analyze the evidence and argue that particular
14

witnesses were or were not credible.” State v. Wright , 719 N.W.2d 910, 918 -19 (Minn.
2006). To determine whether a prosecutor’s statement constituted improper vouching, this
court considers the closing argument as a whole. Id. at 918.
Blakey argues that “[t]he prosecutor committed misconduct by giving her opinion
on [his] credibility, by telling the jury that [he] lied, and by encouraging the jury to reject
[his] defense of consent and find [him] guilty based on the prosecutor’s opinion that [he]
lied.” Blakey cites the following portions of the prosecutor’s closing arguments as
examples:
Now, both [C.S.] and the defendant came in here, they
took an oath to tell you the truth, but only one of them did. And
the person who told you the truth is [ C.S.]. And you have to
weigh the credibility of the witnesses to d ecide who is telling
the truth. But the evidence supports [C.S.’s] version beyond a
reasonable doubt.

. . . .
[C.S.], and the state’s witnesses, gave you the credible
testimony in this case. They’re the ones that should be
believed. The defendant’s testimony, in light of all the
evidence and remaining testimony, establishes that he’s the one
who was not truthful with you, that he’s the one who violated
his oath to tell the truth.

In State v. Swanson , the supreme court held that the prosecutor’s statement that
“[t]he state believes [a particular witness] is very believable” was “impermissible vouching
on its face because the state directly endorsed the credibility of [that] witness.” 707 N.W.2d
645, 656 (Minn. 2006) (emphasis added). In Ture v. State, the supreme court concluded
that it was improper for the prosecutor to use “the first-person pronoun ‘I’ during closing
argument” when addressing witness credibility because a prosecutor “may not interject his
15

or her personal opinion so as to personally attach himself or herself to the cause which he
or she represents.” 681 N.W.2d 9, 20 (Minn. 2004) (quotation omitted). The supreme
court found “clearly improper” prosecutorial vouching where:
In the argument the prosecutor commented on the cred ibility
of several of the state’ s witnesses by characterizing various
witnesses as being “honest,” “a woman of integrity,” “honest
detectives,” and “honest police officers.” He extolled the
police officers as “not the kind of officers who are going to get
up here, take the stand, take the oath and tell you something if
it isn’t true.” In addition, he characterized [the] defendant’s
testimony as “[i]ncredible is the word for it . . . . I suggest to
you that [the defendant] is not only wrong, but not exactly
telling the truth on the stand.” [The d] efendant’s testimony
was referred to as “a lot of nonsense” and as a “joke, joke.” He
depicted [the] defendant as a “rapist and murderer” and as a
“predator.”

State v. Ture, 353 N.W.2d at 516.
In contrast, this court determined that a prosecutor’s argument that a witness was
very sincere and frank in his testimony did not rise to the level of inappropri ate vouching
because the statements were not a direct endorsement of the witness’s credibility . Smith,
825 N.W.2d at 139. Similarly, in State v. Leutschaft, this court held that it was permissible
for a prosecutor to argue that a witness was honest on th e stand and did her best to tell the
jury what she saw. 759 N.W.2d 414, 425 (Minn. App. 2009) , review denied (Minn.
Mar. 17, 2009). We reasoned:
[There was] no impropriety in the prosecutor’s arguments. He
called the jury’ s attention to [the witness’s] testimony and
suggested that it was plausible a nd that she testified honestly.
He did not interject personal opinion or intimate that he had
any particular knowledge of her truthfulness. Rather, he
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invited the jury to make its assessment on the basis of what it
heard and saw in the courtroom.
Id.
Here, the prosecutor did not interject h er personal opinion regarding the relative
credibility of C.S. and Blakey. Nor did the prosecutor suggest that she had particular
knowledge regarding C.S.’s truthfulness. Instead, the prosecutor argued that the jury
should make a credibility determination based on the evidence presented at trial . This
approach did not contravene caselaw . Thus, Blakey has not established that the
prosecutor’s witness-credibility arguments constituted error that was plain.
Impugning the Defense
Blakey argues that the “prosecutor impugned the defense expert by emphasizing
that the expert te stified for money.” It is improper to disparage the defense in closing
arguments. State v. Griese, 565 N.W.2d 419, 427 (Minn. 1997). As is relevant here, it is
inappropriate for a prosecutor to attack the character of a defendant’s expert witness based
on the expert’s receipt of compensation for his testimony. See State v. Bailey, 677 N.W.2d
380, 404 (Minn. 2004) (concluding “that it was improper for the prosecutor to go beyond
the testimony of the expert witness by making . . . references to the w itness’s character”
based on the expert’s receipt of compensation). Once again, because Blakey did not object
at trial, we review for plain error.
We need not decide whether the challenged statements constitute d error that wa s
plain under the first two prongs of the plain-error test because, given the circumstances of
this case, there is no reasonable likelihood that the challenged statements significant ly
affected the jury’s verdict. See Brown, 815 N.W.2d at 620 (stating that a reviewing court
17

need not conside r all parts of the plain -error test if any one part is not satisfi ed). As
explained in section I of this opinion, because Blakey’s guilt was established based on
C.S.’s sleeping state —regardless of her level of intoxication —there is no reasonable
likelihood that the prosecutor’s alleged disparagement of the defense’s intoxication expert
significantly affected the verdict.
In conclusion, the evidence was sufficient to sustain the jury’s guilty verdict, the
district court did not abuse its discretion by limiting the testimony of Blakey’s expert
witness, and Blakey is not entitled to relief on his prosecutorial -misconduct claim .
Affirmed.