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This opinion will be unpublished and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
A17-0436

State of Minnesota,
Respondent,

vs.

Shawn Thomas Rose,
Appellant.

Filed February 5, 2018
Affirmed
Schellhas, Judge

Dakota County District Court
File No. 19HA-CR-16-1590

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

James C. Backstrom, Dakota County Attorney, Mary Russell, Assistant County Attorney,
Hastings, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Pub lic Defender, Lydia Maria Villalva Lijó,
Assistant Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Schellhas, Pr esiding Judge; Ross, Judge; and Bratvold,
Judge.

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U N P U B L I S H E D O P I N I O N
SCHELLHAS, Judge
Appellant challenges his convictions of first-degree criminal sexual conduct (CSC)
and second-degree CSC on the bases of in sufficient evidence and prosecutorial
misconduct. We affirm.
FACTS
Respondent State of Minnesota charged a ppellant Shawn Rose by complaint with
multiple counts of CSC against his stepdaught er, L.K., as follows: count I—first-degree
CSC for multiple acts of sexual penetration of a victim under 16 years of age, occurring
between January 1, 2002 and December 31, 2006; count II—second-degree CSC for sexual
contact with a victim under the age of 13 occurring in 2002; count III—second-degree CSC
in 2003; count IV—s econd-degree CSC in 2004; and count V—se cond-degree CSC in
2005. At his jury trial, Ro se conceded count IV—that the state had proved that he
committed second-degree CSC in 2004. Prior to trial, Rose and his attorney agreed in
writing that Rose would concede count IV as a trial strategy.
L.K. was 21 years old at trial and testif ied that, in 2002, wh en she was in second
grade and age seven, she lived in a townhouse in Apple Valley with her mother, C.R., Rose,
who was her mother’s then-boyfriend, and her younger sister. L.K. testified that, in 2002,
Rose began sexually assaulting her before scho ol while C.R. was at work. Rose usually
awoke L.K. before school, carried her to hi s bedroom, removed her clothes, and sexually
penetrated her vagina with his penis. Sometim es Rose carried L.K. to the couch, placed
L.K. on his lap, and touched her vagina while watching the news on television. L.K.

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testified that Rose assaulted her every sc hool day from 2002 until 2006, from second to
fifth grade.
L.K. testified that the assaults caused her physical pain, and that Rose told her to
keep their “cuddle time” secret. L.K. testified that she did not tell her family about Rose’s
assaults until 2016, because, wh en she was younger, she did not know right from wrong,
she was scared for her younger sister because she thought that her sister would not have a
father if she told someone, and she was afraid her mother would not believe her. When
Rose assaulted L.K., she pretended to be as leep. When she reached puberty, Rose ceased
assaulting her.
On cross-examination, L.K. described the sexual penetra tion as “full-on” and said
that the assaults caused her to bleed. She acknowledged that no medical records regarding
the assaults existed but explained that she di d not visit the doctor for checkups or exams
because C.R. did not have health insurance or enough money to pay for exams.
L.K.’s high-school friend testified that, around tenth grade, L.K. told her that Rose
had touched and “raped” her over a number of years. Although the friend acknowledged
on cross-examination that sh e did not use the word “rap e” when she sp oke to the
prosecutor’s office days before trial, she maintained the truth of her May 2016 statement
to police that L.K. told her that Rose both touched and raped L.K.
L.K.’s aunt, A.K., testified that on a Sunday in April 2016, the day after L.K. spent
the night at A.K.’s home, L.K. told A.K. that Rose raped her as a young girl. A.K. said that
L.K. cried while explaining wh at had happened and said, “It was full on. It wasn’t just
touching.” L.K. told A.K. that Rose assaulted her in the morning before school when C.R.

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was at work. A.K.’s husband, J.K., also testified that, on that April Sunday, L.K. stated that
Rose had “raped” her when she was a girl until she started puberty. J.K. also testified that
L.K. told him, while the two were in his car, that Rose did some “icky things” to her when
she was young. L.K. told her mother and her grandfather what Rose had done to her, and
they called the police the next day.
Detective Shawn McKnight of the Apple Valley Police Department, a specialist in
sex-crime investigations, interv iewed L.K. twice. During the fi rst interview, L.K. stated
that (1) Rose sexually assaulted her almost daily from second grade until puberty, (2) on
the mornings she was assaulted, Rose woke her up and moved her to the bed or couch,
(3) Rose sexually penetrated her, and (4) Rose called the assaults “cuddle time.” Detective
McKnight testified that the details of L.K.’s second statement were consistent with her first
statement. McKnight also testified about Rose’s recorded interview on the morning of his
arrest, and the jury heard an audio recording of the interview.
During the recorded intervie w, McKnight confronted Rose about “sexual stuff”
occurring with L.K. at the Apple Valley townhouse. Rose admitted that “it was wrong” but
denied that the abuse occurred over a period of three years or that he penetrated L.K. But
throughout the interview, Rose’s version of the facts changed. Initially, he said that the
abuse occurred twice but then admitted that the abuse may ha ve occurred three or four
times. And, initially, Rose said that he and L.K. were clothed and that he never ejaculated,
but later indicated that he might have exposed himself and ejaculated.
C.R. testified that Rose could not possibl y have assaulted L.K. by penetrating her
because C.R. was home in the mornings from 2002 until November 2004 and awoke L.K.

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every day during that time. C.R. also testified that she never noticed that L.K. bled or was
injured, and that she did the laundry and never noticed blood. C.R. believed Rose—that he
only had sexually touched L.K.
Rose admitted at trial that, in 2004, over a few-week span when L.K. was age nine,
he rubbed his genital area against L.K.’s gen ital area four or five times while he was
clothed. He denied sexually penetrating L.K. and denied a ny sexual contact with L.K. in
2002, 2003, and 2005. On cross-examination, he testified that he sexually touched L.K. on
the couch when the news or cartoons were on the television, and that L.K. pretended to be
asleep.
The jury found Rose guilty of first-de gree CSC (count I), guilty of second-degree
CSC from 2003–2005 (counts III-V), and not guilty of second-degree CSC in 2002 (count
II). The district court sentenced Rose to 144 months in prison.
This appeal follows.
D E C I S I O N
I.
Rose first argues that his convictions of first-degree CSC an d second-degree CSC
in 2003 and 2005 must be reversed because of insufficient evidence. He relies on his denial
of sexual penetration and C.R.’s testimony that she was at home during the time in question
and did not see any physical evidence to corroborate L.K.’s allegations.
When considering an insu fficiency-of-the-evidence claim appellate courts “make a
painstaking review of the r ecord to determine whether the evidence and reasonable
inferences drawn therefrom, viewed in a light most favorable to the verdict, were sufficient

6
to allow the jury to reach its verdict.” State v. Brown, 732 N.W.2d 625, 628 (Minn. 2007).
Appellate courts will not dist urb a verdict “if the jury, ac ting with due regard for the
presumption of innocence and for the ne cessity of overcoming it by proof beyond a
reasonable doubt, could reason ably conclude that a defendant was proven guilty.”
Bernhardt v. State, 684 N.W.2d 465, 476–77 (Minn. 2004) (quotation omitted).
A. First-Degree CSC
The Due Process Clause of the Fourte enth Amendment to the United States
Constitution requires the state to prove ever y element of the offe nse charged beyond a
reasonable doubt. Patterson v. New York , 432 U.S. 197, 204 −05, 97 S. Ct. 2319, 2324
(1977); State v. Auchampach, 540 N.W.2d 808, 816 (Minn. 1995). A person is guilty of
first-degree CSC if: (1) that person engages in sexual penetration with another person,
(2) the actor has a significant relationship to the complainant, (3 ) the complainant was
under 16 years of age at the time of the se xual penetration, and (4) “the sexual abuse
involved multiple acts committed over an extended period of time.” Minn. Stat. § 609.342,
subd. 1(h) (2002). “Sexual penetration” means sexual intercourse and “any intrusion
however slight into the genital or anal ope nings.” Minn. Stat. § 609.341, subd. 12(2)
(2002).
L.K. testified that Rose sexually penetrated her on multiple occasions with his penis
from 2002 until 2006. She told a high-school friend that Rose “touched” and “raped” her
when she was a child. In 2016, L.K. repeated the allegations to her aunt, uncle, mother,
grandfather, and twice to Detective McKnight, stating that Rose sexua lly penetrated her.

7
McKnight testified that the details contained in L.K.’s second stat ement were consistent
with her first statement.
On review, appellate courts assume that “the jury believed the state’s witnesses and
disbelieved evidence contradicting those witnesses.” State v. Pilot, 595 N.W.2d 511, 519
(Minn. 1999). Furthermore, “the assessment of a witness’s credibility is exclusively the
province of the jury.” State v. McCray , 753 N.W.2d 746, 754 (Minn. 2008) (quotation
omitted). We therefore assume the jury disbelieved C.R. a nd Rose’s testimony, to the
extent it conflicted with L.K.’s testimony. See State v. Barshaw , 879 N.W.2d 356, 366
(Minn. 2016) (“In determining whether the evidence is sufficient, we defer to the fact-
finder’s credibility determinations and assume that the fact-finder disbelieved any evidence
that conflicted with the verdict.” (quotation omitted)).
Additionally, C.R.’s testimony was not entirel y inconsistent with the first-degree
CSC conviction because she testified that beginning in November 2004 she was away from
the home in the mornings and that Rose was then alone with L.K. Witness credibility was
a central theme in this case and a reasonable jury could have disbe lieved Rose and C.R.,
and believed L.K. “A convic tion can rest on the uncorroborated testimony of a single
credible witness.” State v. Foreman , 680 N.W.2d 536, 539 (Minn. 2004) (quotation
omitted). L.K.’s testimony alone was sufficient to prove the element of sexual penetration.
Relying on State v. Kemp, 272 Minn. 447, 138 N.W.2d 610 (1965) and State v. Huss,
506 N.W.2d 290 (Minn. 1993), Rose argues that this is a case re quiring corroboration of
the single witness’s testimony.

8
In Kemp, the supreme court noted that reve rsal may be warranted when “the
evidence to overcome the presumption of innoc ence is so complete ly dependent upon a
single witness whose testimony, considered in th e light of the record as a whole, is of
dubious veracity .” 272 Minn. at 450, 13 8 N.W. 2d at 612 (emphasis added) (footnote
omitted). Noting its concern with “[m]aterial inconsistencies between the sworn testimony
[of the complainant] at trial and at the preliminary hearing,” the supreme court reversed the
conviction of first-degree robbery that wa s based on the uncorrobor ated testimony of a
single complaining witness, the complainant. Id. at 448, 504, 138 N.W. 2d at 610–12.
In Huss, the supreme court determined that a three-year-old victim’s uncorroborated
testimony in a sexual-abuse case was insuffici ent to prove guilt because the victim was
exposed to “highly suggestive” material and her testimony was inconsistent. 506 N.W.2d
at 292–93. The child’s testimony was “contradi ctory as to whether any abuse occurred at
all, and was inconsistent with her prior statements and other verifiable facts.” Id. at 292.
This case is unlike Kemp or Huss. Here, L.K. made multiple statements to others
about Rose assaulting her from 2002 until 2005. L.K.’s statements were materially
consistent. Her trial testimony also was consis tent with her out-of-court statements. No
corroboration of L.K.’s testimony is required.
But even if corroboration was required, we would conclude that L.K.’s testimony
was corroborated. Corroborativ e evidence includes testimony from others regarding the
victim’s demeanor, emotional condition, and ch anges in behavior after a sexual assault.
State v. Wright, 679 N.W.2d 186, 190 (Minn. App. 2004), review denied (Minn. June 29,
2004). A detailed description of the crim e is evidence of credibility supporting a

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conviction. State v. Danielski , 374 N.W.2d 322, 326 (Minn. App. 1985), review denied
(Minn. Dec. 13, 1985).
Here, A.K. testified that L. K. was angry as a teenager and always wanted to leave
her house. L.K. was crying when she first told A.K. about the abuse. She was crying, upset,
and shaking when she spoke to Detective McKnight. Contrary to Rose’s contention that
L.K.’s testimony was vague and unspecific about time frames, L.K. stated in detail that the
assaults began when she was in second grade in 2002 an d continued until she reached
puberty.
We conclude that the evidence was sufficient to support Rose’s conviction of first-
degree CSC.
B. Second-Degree CSC in 2003 and 2005
A person is guilty of second-degree CSC if that person (1) engages in sexual contact
with another, (2) the complainant is under 13 years of age, and (3) th e actor is more than
36 months older than the comp lainant. Minn. Stat § 609.343, subd. 1(a) (2002). “Sexual
contact” includes the intentional touching of the clothing covering the immediate area of
the complainant’s intimate parts. Minn. Stat. § 609.341, subd. 11(a) (2002).
While Rose admitted to acts constituting the elements of second-degree CSC in the
year 2004, he argues that th e evidence was insu fficient to prove th e occurrence of the
offenses in 2003 and 2005. This argument is unavailing. The jury, as the sole judge of
witness credibility, was entitled to credit L.K.s testimony that sexual contact occurred in
2003 and 2005. This court must assume on review that the jury disbelieved the testimony
of Rose and C.R. See Barshaw, 879 N.W.2d at 366 (“In determining whether the evidence

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is sufficient, we defer to the fact-finder’s cr edibility determinations and assume that the
fact-finder disbelieved any evidence that conflicted with the verdict.” (quotation omitted)).
As with Rose’s first-degree CSC conviction, we conclude that L.K.’s testimony and other
evidence provided sufficient eviden ce for the jury to convict Rose of the two counts of
second-degree CSC in 2003 and 2005.1
II.
During closing argument, the prosecutor told the jury that it mu st decide “whether
. . . to take the easy road or whether . . . to take the hard road,” and that their oath required
them to “take the hard road.” The prosecutor said:
You’ve heard from a defe ndant who’s conceded,
completely confessed, to one of the crimes he’s charged with.
That’s evidence in the case. You get to consider that fully.
And I expect that [the defense attorney] will come up
here after me and tell you to go back there and convict on
Count IV because they—this man—wants to mitigate his
damages and they want you to do that for them. And you, as
citizens, that would be the easy road. It would be the easy road
to say we can feel good about ourselves by hearing about this
predatory behavior, entering a conviction on one count, getting
home to our families, going ba ck and playing video games,
going back to our jobs, not wanti ng to talk about the facts of
this case, entering a conviction, and not thinking about the rest,

1 Rose cites a number of cases that are inapposite or do not help his case. In State v. Reinke,
the supreme court noted that the evidence in a CSC case was suffici ent when it included
“significant corroborating evidence,” includi ng evidence of a prompt complaint, and
medical evidence. 343 N.W.2d 660, 662 (Minn. 1984). But the court in Reinke was not
requiring such evidence for a conviction. Id. In State v. Johnson, this court found that the
evidence in a CSC case was sufficient even when the victim offered inconsistent testimony
and later recanted. 679 N.W.2d 378, 387 (Minn. App. 2004), review denied (Minn.
Aug. 17, 2004). In State v. Packer , the supreme court stated that corroboration is not a
requirement for a jury to find guilt in a CS C case. 295 N.W.2d 266, 267 (Minn. 1980).
Finally, in State v. Ani , the supreme court makes no sugg estion that a credible witness
requires corroboration. 257 N.W.2d 699, 700 (Minn. 1977).

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and splitting the baby. That w ill make us feel good about
ourselves, and we can go home and think we did the right thing.
It’s not the right thing. Yo u have to consider all the
evidence in this case. And you have to consider each and every
one of those counts separately. Don’t let this man mitigate his
damages through you, because that’s exactly what he’s doing.
He’s mitigating his damages th rough you. And it’s a smart
move.
I’m going to tell you why the evidence in this case
shows you why he’s guilty of all of the counts.

Near the end of the closing argument, the prosecutor repeated the “hard road/easy
road” theme and told the jury it should go year by year and consider all the counts
individually. Rose argues on appeal that the prosecutor committed misconduct by
(1) inflaming the passions of the jury and in fringing on juror independence, and
(2) improperly denigrating Rose’s defense strategy of conc eding guilt on c ount IV. Rose
did not object to the prosecutor’s statements.
Because Rose did not object to the prosecutor’s statements at trial, we review Rose’s
challenge under a modifi ed plain-error test. See State v. Fraga , 898 N.W.2d 263, 278
(Minn. 2017) (reviewing challenge under modified plain-error test when defendant did not
object to prosecutor’s statements at trial). “Under this modified test, the defendant has the
burden to prove the existence of an error that is plain.” State v. Parker, 901 N.W.2d 917,
926 (Minn. 2017). “If the defendant establishes error that is plain, the burden shifts to the
State to demonstrate that the plain error did not affect the defendant’s substantial rights.”
Id. (footnote omitted). “A plain error affects a defendan t’s substantial rights if it was
prejudicial and affected th e outcome of the case.” Id. (quotation omitted). “An error is

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prejudicial if there is a reas onable likelihood that the error had a significant effect on the
jury’s verdict.” Id. (quotation omitted).
An error is “plain if it is clear or obvious.” State v. Jones , 753 N.W.2d 677, 686
(Minn. 2008) (quotation omitted). A “clear and obvious” prosecutorial error occurs when
the prosecutor’s conduct, “contravenes case law, a rule, or a standard of conduct.” Id. When
assessing a closing argument for prosecutorial misconduct, appellate courts review the
argument as a whole, rather than selected phrases and remarks. McCray, 753 N.W.2d at
751.
A. Hard road/easy road and do-the-right-thing statements
Rose first contends that it was plain error for the prosecutor to urge jurors to “do the
right thing” and to “take the hard road,” as well as stating that finding Rose guilty of only
one count would be taking the “easy road.” But “[i]t is well-settled th at the State has the
right to vigorously argue its case.” State v. Peltier, 874 N.W.2d 792, 804 (Minn. 2016). “A
prosecutor’s closing argument need not be colorless, so long as it is based on the evidence
or reasonable inferences from that evidence.” Jones, 753 N.W.2d at 691 −92. “In closing
argument, a prosecutor must avoid inflaming the jury’s passions and prejudices against the
defendant.” Fraga, 898 N.W.2d at 278 (quotation om itted). “But a prosecutor may make
all legitimate arguments on the evidence and may draw reasonable inferences from the
evidence.” Id. (quotation omitted).
Rose asserts that the prosecutor linked taking the “hard road” and “do[ing] the right
thing” with finding Rose guilty on all counts. This is not accurate. The full context of the
statements show that the prosecutor was stating that the “right thing” and the “hard road”

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meant considering “all the evidence in this case” and “each and every one of th[e] counts.”
Later repeating the “hard road/easy road” theme, the prosecutor told the jury that it should
go year by year and consider all the counts individually. We reject Rose’s argument that
this case is like State v. Porter, in which the supreme court determined that the prosecutor’s
appeal to emotions was a “blatant attempt to impinge on juror independence.” 526 N.W.2d
359, 363−64 (Minn. 1995).
This case is similar to State v. Graham, in which the supreme court determined that
a prosecutor’s statement urging the jury to “do the right thing” was not misconduct when
the prosecutor asked the jury to seek jus tice based on the evidence. 764 N.W.2d 340,
356−57 (Minn. 2009). Like the supreme court in Graham, we conclude that the
prosecutor’s statements here urged the jury to seek justice based on the evidence and did
not amount to misconduct.
B. “Mitigate his damages through you”
Rose argues that the prosecutor committed misconduct by telling the jury that Rose
had attempted to use the jury to “mitigate his damages” by conced ing guilt on count IV.
But a prosecutor does not commit misconduct by commenting on defense tactics when the
statements are “couched in ar guments about the evidence.” Id. at 356 . In vigorously
arguing its case, the state ma y argue that “the evidence does not support particular
defenses.” Id. (quotation omitted).
Rose acknowledged in a writte n agreement with his attorney that he was conceding
count IV as a “trial strategy.” We are no t convinced that the prosecutor committed
misconduct by arguing that Rose was attempting to mitigate his damages by conceding his

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guilt on count IV. Recognizing that the jury might find Rose guilty of the conceded count
without examining all of the co unts and all of the evidence, the prosecutor’s statements
were intended to avoid that result by reminding the jury of its duty to consider all of the
counts and all of the evidence.
Like Graham, id. at 357, the prosecutor’s statements here about the defense’s tactics
were tethered to arguments about the evidence. The prosecutor merely prevailed upon the
jury to examine all the evidence. We therefore conclude that Rose has not met his burden
to prove the existence of an error, much less a plain error.
Affirmed.