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This opinion will be unpublished and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
A17-0794

State of Minnesota,
Respondent,

vs.

Kell Anthony Bean,
Appellant.

Filed March 26, 2018
Affirmed
Smith, Tracy M., Judge

Hennepin County District Court
File No. 27-CR-15-20001

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

Michael O. Freeman, Hennepin County Attorney, Jonathan P. Schmidt, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Mark D. Nyvold, Fridley, Minnesota (for appellant)

Considered and decided by Bjorkman, Presiding Judge; Rodenberg, Judge; and
Smith, Tracy M., Judge.
U N P U B L I S H E D O P I N I O N
SMITH, TRACY M., Judge
Appellant Kell Bean challenges his convic tion of fourth-degree criminal sexual
conduct, arguing that the state engaged in both unobjected-to and objected-to prosecutorial
misconduct by eliciting vouching testimony from a number of witnesses and referencing

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that testimony during closing arguments. Because the unobjected-to conduct was not
plainly erroneous, and because the first inst ance of objected-to conduct was permissible
and the second instance was promptly corrected with a remedial instruction, we affirm.
FACTS
On January 14, 2015, Bean’s 20-year-old niece, M.O., went to Bean’s home for
dinner. Over the course of the evening, Bean served her alcohol, and, between 7:30 p.m.
and midnight, M.O. consumed approximately six glasses of wine.
As the evening progressed, Bean bega n making comments about how “sexy” M.O.
was, and he eventually grabbed M.O.’s breas t through her shirt. M.O. attempted to
extricate herself from the situation, moving fr om Bean’s downstairs dining-room table to
the upstairs living-room couch, but Bean follo wed her upstairs and sat down next to her.
M.O. tried to call her boyfriend to come ge t her, although she knew he was studying in
Europe at the time. Bean squeezed M.O.’s breast again, lifted M.O.’s legs into his lap, and
began stroking them. At some point, Bean got off the couch and took off his pants to “show
[M.O.] how strong his legs were.” M.O. texted her boyfriend, telling him Bean had touched
her breast and taken off his pants. M.O. also placed a video call to her boyfriend, because
she wanted Bean to “see [her] boyfriend.” Bean, M.O., and M.O.’s boyfriend talked for a
while, and then M.O. hung up and eventually fell asleep on the couch.
M.O. next remembered waking up with B ean on top of her. One of Bean’s hands
was up M.O.’s shirt on her breast; the other was down her pants. When M.O. woke up,
Bean took his hand out from her pants, licked his fingers, and then tried to put his hand

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back down her pants. M.O. rolled off the couch and began crawling away. Bean tried to
stop her, but M.O. was able to get away and leave his house.
Bean was charged with th ird-degree criminal sexual conduct and fourth-degree
criminal sexual conduct. A jury acquitted Bean of the third-degree charge but found him
guilty of fourth-degree criminal sexual conduct. The district court stayed imposition of a
sentence and placed Bean on five years’ probation.
Bean appeals the judgment of conviction.
D E C I S I O N
I. Presenting unobjected-to vouching testimony from several witnesses was not
plain error.

Bean alleges the state engaged in prosecu torial misconduct when it elicited the
following testimony and referred to it in closing argument:
 Testimony from M.O. that, “after she had spoken with her mother, father,
grandfather, grandmother, and [a fam ily friend], they all supported her
decision to report . . . Bean to the police”;
 Testimony from M.O. that her boy friend had “been supportive of her
through this process”;
 Testimony from M.O.’s boyfriend that he never had any reason to doubt
M.O.;
 Testimony from M.O.’s mother that she had no reason to doubt M.O. when
M.O. told her about the incident; and

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 Testimony from M.O.’s uncle (Bean’s brother) that he had never known
M.O. to lie about something this extreme.
At trial, Bean did not object to this test imony or the references to it in closing
argument. When a defendant does not object at trial, claimed prosecutorial misconduct is
reviewed under a modified plain-error standard. Caldwell v. State, 886 N.W.2d 491, 501
n.6 (Minn. 2016); State v. Ramey , 721 N.W.2d 294, 302 (Minn. 2006). “Under this
modified test, the defendant has the burden to prove the existence of an error that is plain.
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.” State v. Parker, 901
N.W.2d 917, 926 (Minn. 2017). “If the State fails to demonstrate that the alleged error did
not affect the defendant’s substantial rights,” appellate courts consider “whether the error
should be addressed to ensure fairness and the integrity of judicial proceedings.” Id. If
“any one of the requirements” fo r plain error is not satisfied , appellate courts “need not
address any of the others.” State v. Lilienthal , 889 N.W.2d 780, 785 (Minn. 2017)
(quotation omitted).
“A prosecutor engages in prosecutorial mi sconduct when the prosecutor violates
clear or established standards of conduct . . . .” State v. Smith, 876 N.W.2d 310, 334-35
(Minn. 2016) (quotation omitte d). Applying this rule, this court has held that
“[p]rosecutors may not elicit credibility-vouc hing testimony from trial witnesses.” State
v. Robideau , 783 N.W.2d 390, 400 (Minn. App. 2010), rev’d on other grounds , 796
N.W.2d 147 (Minn. 2011). Such vouching occurs when one witness testifies “for or against
the credibility of another witness.” See State v. Vick, 632 N.W.2d 676, 689 (Minn. 2001).

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However, “a defendant might make certain arguments or introduce material that ‘opens the
door’ to allow the state to ‘respond with material that would otherwise have been
inadmissible.’” Robideau, 783 N.W.2d at 400 (quoting State v. Bailey, 732 N.W.2d 612,
622 (Minn. 2007)). “The opening-the-door doc trine ‘is essentially one of fairness and
common sense’ so that one party does not gain an unfair advantage by introducing
misleading or distorted information.” Id. (quoting Bailey, 732 N.W.2d at 622).
The state concedes that at least some of the testimony Bean complains of constituted
vouching. However, the state argues that Be an opened the door to vouching testimony
through his opening statement and questioning of M.O. (who was the first trial witness)
and that, if there was any error, it was not plain. Although we have concerns that vouching
testimony pervaded Bean’s trial, we agree w ith the state that Bean’s opening statement
opened the door and, in any event, the error was not plain.
In Bean’s opening statement, Bean told the jury they would hear that the detective
who interviewed M.O. “appear[ed] to find he r whole story somewhat preposterous.”
Additionally, Bean told the jury they would hear that “regardless of what he has to say, it
will be apparent by his actions . . . that [M.O .’s boyfriend] simply didn’t believe [M.O.]”
Looking at the statements in context, th ey previewed vouching testimony that Bean
expected to elicit for the jury. By previewing vouchi ng testimony against M.O.’s
credibility, Bean opened the doo r for the state to respond with vouching testimony for
M.O.’s credibility. Cf. State v. Glidden, 459 N.W.2d 136, 141 (Minn. App. 1990) (holding
that defendant opened the door to expert-w itness testimony by statements made during
opening statement).

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Bean, however, argues that he was entitled to preview vouching testimony—without
opening any door—because the state had alre ady opened the door to vouching testimony
during its opening statement. The state, during its opening statement and without objection
from Bean, referenced anticipated testimony from M.O.’s grandmother (who is also Bean’s
mother), saying, “[I]nitially she was supportive of [M.O.].” However, again looking at the
context in which this statement was made, th e anticipated testimony was not described in
order to vouch for M.O.’s cred ibility, but rather to explain the family dynamics between
Bean, M.O., and M.O.’s grandmother.1 We conclude that the st ate did not open the door
to vouching testimony in its opening statement.
Additionally, even if it is debatable wh ich party opened th e door to vouching
testimony in their respective opening statements, the fact that it is debatable indicates there
was no “clear” violation of estab lished standards of conduct. See State v. Manthey , 711
N.W.2d 498, 504 (Minn. 2006) (declining to find plain error where defendant did not object
to hearsay, because statemen ts arguably c ould have come in u nder one of the many

1 The full context of the prosecutor’s statement was:

You [are] going to hear family drama; you may hear some
because the family is somewhat split, but what you will hear is
just that some family members asked Mr. Bean as soon as this
happened: What happened? You will hear from [M.O.’s
grandmother], and I said earlier that she was initially
supportive. That has somewhat changed. You will be the
judges of that, but just be prep ared for that, but what you will
learn is that initially she was supportive of [M.O.] and advised
her to tell the story, but she al so wanted to get the story from
Mr. Bean.

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exceptions to the hearsay rule). Thus, in any event, the erro r Bean alleges regarding the
unobjected-to vouching testimony is not plain and is not a basis for reversal.
II. Eliciting objected-to vouching testimony from M.O.’s uncle and from M.O. was
not reversible prosecutorial misconduct.

Bean argues that two instances of obj ected-to vouching te stimony constituted
prosecutorial misconduct requiring reversal. When reviewing claims involving objected-
to prosecutorial misconduct, appellate courts apply a two-tiered approach determined by
the severity of the misconduct. See State v. Caron, 300 Minn. 123, 127-28, 218 N.W.2d
197, 200 (1974). Under this approach, if a claim involves “unusually serious prosecutorial
misconduct,” an appellate court reviews the conduct to determine whether it was harmless
beyond a reasonable doubt. See id. at 127, 218 N.W. 2d at 200. If a cl aim involves less
serious misconduct, an appellate court review s to determine whether the conduct “likely
played a substantial part in influencing the jury to convict.” Id. at 128, 218 N.W.2d at 200;
see also State v. Wren, 738 N.W.2d 378, 390 n.9 (Minn. 2007) (elaborating on two-tiered
approach). It is unclear whether th is two-tiered standard still applies. See State v.
Carridine, 812 N.W.2d 130, 146 (Minn. 2012) (concluding that, because “the one instance
of objected-to prosecutorial misconduct here is harmless even under the standard for more
serious misconduct, we do not reach the i ssue of the continued applicability of the Caron
test to objected-to prosecutorial misconduct” ). Here, because we conclude the first
instance of objected-to vouching testimony wa s not misconduct and the second instance
was promptly remedied with a curative jury instruction, making any misconduct harmless
beyond a reasonable doubt, reversal is not warranted under either standard.

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A. Eliciting testimony from M.O.’s unc le was not prosecutorial misconduct.
Bean alleges the state engaged in pros ecutorial misconduct when it elicited
testimony from M.O.’s uncle (Bean’s brother) that he had “remained supportive of [M.O.]”
because he believed her. Bean objected to th is testimony, but the district court overruled
his objection.
Prior to M.O.’s uncle testifying, Bean had elicited testimony from M.O. that her
boyfriend’s behavior “suggested that he didn’t believe [M.O.]” and testimony from the
boyfriend himself that, during the investigation, he had told the police, “The reason I sound
irritated is because I don’t believe what [M.O.] is saying at this point.” Thus, by the time
the uncle was testifying, a vouching contes t was well underway. Although it may be
unclear whether the door to vouching was open during M.O.’s direct examination, the door
was certainly open by the time the state exam ined M.O.’s uncle. Because Bean elicited
vouching testimony from M.O. and her boyfriend, it was not improper for the state to elicit
vouching testimony from M.O.’s uncle. See State v. DeSchoatz , 280 Minn. 3, 13, 157
N.W.2d 517, 524-25 (1968) (holding that once a defendant had opened the door to hearsay
testimony through one witness, the state c ould elicit related hearsay statements from
subsequent witnesses). The state did not commit prosecutorial misconduct by eliciting the
testimony in question.
B. The district court’s instruction to the jury proper ly addressed any
misconduct in eliciting M.O.’s order-for-protection testimony.

Bean alleges the state engaged in pros ecutorial misconduct when it elicited
testimony from M.O. that she obtained an orde r for protection based on a “statement the

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same as you described to the jury today.” B ean objected to this testimony. Initially the
district court overruled Bean’s objection; ho wever, after a bench conference, the district
court instructed the jury, “The line of questi oning for the order for protection . . . is not
something that you should consider in the matter that is . . . at hand.” Once the jury left
the courtroom, the district court indicated that, if Bean wanted to flesh out the instruction
during jury instructions, the court would cons ider additional language proposed by Bean.
Bean never proposed any additional language.
“We presume that jurors follow the court’s instructions.” Zornes v. State , 880
N.W.2d 363, 373 (Minn. 2016). In this case, the district court promptly instructed the jury
to disregard the testimony in question. Bean argues that the instruction given was
insufficient. We disagree. The district cour t appropriately instructed the jury at the time
the testimony was elicited, and, after the testimony was excluded, it was never again
referenced by either party. There is no ev idence to indicate the jury disobeyed the
instruction to disregard the order-for-protec tion testimony. We thus adhere to the
presumption that the jury followed the court’s instruction and conclude that, assuming the
order-for-protection testimony was improperl y elicited, the misconduct was harmless
beyond a reasonable doubt because the testim ony was not considered by the jury in
reaching its verdict.
Affirmed.