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This opinion will be unpublished and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
A17-0824

State of Minnesota,
Respondent,

vs.

Joseph Stevie Lewis,
Appellant

Filed May 7, 2018
Affirmed in part, reversed in part, and remanded
Worke, Judge

Hennepin County District Court
File No. 27-CR-16-18404

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

Michael O. Freeman, Hennepin County Attorney, Kelly O’Neill Moller, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Adam Lozeau, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Worke, Presiding Judge; Peterson, Judge; and Ross,
Judge.
U N P U B L I S H E D O P I N I O N
WORKE, Judge
Appellant argues that he is entitled to a new trial because the state committed
prosecutorial misconduct during closing argument. He also argues that the district court

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incorrectly calculated his criminal-history score and erroneously convicted him of multiple
crimes arising from a single behavioral incident. We affirm in part, reverse in part, and
remand.
FACTS
In the early morning of December 17, 2015, p olice responded to a call from J.I.
reporting a sexual assault. J.I. identified her attacker as Joe Miller and described him and
his vehicle. She told police that Miller pinned her against a wall, then placed her in a chair
and inserted his penis into her vagina. J.I. told police th at she repeatedly communicated
her lack of consent and told Miller to stop.
Police t ransported J.I. to the hospital where a nurse conducted a sexual-assault
examination. During th e examination, J.I. appeared tearful, tense, anxious, and was
wringing her hands. The nurse observed bruising on J.I.’s wrist, an abrasion to her mouth,
and vaginal tearing.
In the early morning of December 20, J.I. called the police when Miller returned to
her home. Police identified Joe Miller as appellant Joseph Stevie Lewi s. Lewis was
charged with one count each of first- and third-degree criminal sexual conduct.
At his trial, Lewis testified that he and J.I. engaged in consensual, “fairly
aggressive” sex. He also admitted to telling multiple lies during his interaction with J.I.
and the subsequent investigation. The jury found Lewis guilty on both counts. The district
court sentenced Lewis to 156 months in prison based on a criminal -history score of one.
Lewis did not contest his criminal-history score, which was based on a 2008 conviction for
domestic battery from Illinois. The only documentation of that conviction was Lewis’s

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presentence investigation (PSI) and sentencing worksheet. The district court did not
sentence Lewis for third -degree criminal sexual conduct, but the warrant of commitment
indicates that Lewis was convicted of both first- and third-degree criminal sexual conduct.
This appeal followed.
D E C I S I O N
Prosecutorial misconduct
Lewis argues that the state committed pervasive, serious misconduct in closing
argument. A prosecutor commits prosecutorial misconduct when she “violates clear or
established standards of conduct, e.g., rules, laws, orders by a district court, or clear
commands in this state’s case law.” State v. Smith, 876 N.W.2d 310, 334-35 (Minn. 2016)
(quotation omitted). To determine whether a prosecutor engaged in misconduct during
closing argument, this court looks at the closing argument “as a whole, rather than to
selected phrases or remarks.” Id. at 335 (quotation omitted).
Because Lewis did not object to the alleged prosecutorial misconduct, this court
applies a modified plain -error standard. See State v. Carridine , 812 N.W.2d 130, 146
(Minn. 2012). Under this standard, the appellant must demonstrate that the misconduct
constituted error and that the error was plain. State v. Ramey, 721 N.W.2d 294, 302 (Minn.
2006). An error is plain if it “contravenes case law, a rule, or a standard of conduct.” Id.
If the appellant satisfies these first two elements, the burden shifts to the state to show that
the error did not affect the appellant’s substantial rights. Carridine, 812 N.W.2d at 146.
To satisfy that burden, “the state would need to show that there is no reasonable likelihood

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that the absence of the misconduct in question would have had a significant effect on the
verdict of the jury.” Ramey, 721 N.W.2d at 302 (quotation omitted).
Error
After careful review of the record and arguments , we conclude that the state
committed misconduct by (1) vouching for the truth of J.I.’s testimony and suggesting that
Lewis was trying to fool the jury, (2) commenting on social issues outside of Lewis’s guilt
or innocence, (3) encouraging jurors to place themselves in J.I.’s shoes, and (4) aligning
the jury with the state. See Ture v. State, 681 N.W.2d 9, 20 ( Minn. 2004) (stating that
although a prosecutor may argue a witness’s credibility, she may not interject her personal
opinion so as to attach herself to the cause she represents); State v. Coleman, 560 N.W.2d
717, 721 (Minn. App. 1997) (stating that it is misconduct for a prosecutor to characterize
the defendant as “deliberately attempting to ‘mislead’ the jury”); State v. Duncan, 608
N.W.2d 551, 556 (Minn. App. 2000) (stating that it is misconduct for a prosecutor to “make
statements urging the jury to protect society or to send a message with its verdict”), review
denied (Minn. May 16, 2000) ; State v. Thompson , 578 N.W.2d 734, 742 (Minn. 1998)
(stating that arguments inviting the jur ors to put themselves in the victim’s shoes are
generally improper); Nunn v. State, 753 N.W.2d 657, 663 (Minn. 2008) (stating that it is
misconduct for a prosecutor to use the term “we” to desc ribe the prosecutor and jury as
members of a group that excludes the defendant). Lewis also argues that the state misstated
the evidence and disparaged the defense.

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Misstating evidence
Lewis argues that the prosecutor repeatedly misstat ed the evidence duri ng closing
argument. Prosecutors may “argue all reasonable inferences from evidence in the record.”
Smith, 876 N.W.2d at 335 (quotation omitted). However, it is misconduct for a prosecutor
to intentionally “misstate the evidence or mislead the jury as to the inferences it may draw.”
Id. (quotation omitted).
First, Lewis argues that the prosecutor incorrectly asserted that Lewis knew that he
gave J.I. a false phone number and also that Lewis never explained why he returned to
J.I.’s home on December 20. During closing argument, the prosecutor asserted that J.I.
could not have called Lewis on December 20 because he gave her a false phone number.
On direct examination, Lewis admitted that he gave J.I. a fake number, but he also asserted
that she already had his real phone number because they had exchanged numbers at the
bar. The record reveals that the prosecutor’s assertion was based on the assumption that
Lewis’s testimony was not credible. The prosecutor asserted that Lewis’s version of events
was “not true” and that “there is no way [J.I.] called him.” The prosecutor did not misstate
the evidence in the record, but instead argued a reasonable inference from Lewis’s
testimony. Similarly, although the prosecutor asserted that Lewis “d idn’t tell” the jury
“why he actually went back [to J.I.’s home] on 12/20,” when read in context, this statement
was also premised upon the inference that Lewis’s testimony was not credible. The
prosecutor argued that, because Lewis’s explanation for returning to the home was not true,
it was not clear from the record why he returned.

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Second, Lewis argues that the prosecutor misstated the evidence in the record when
she asserted that J.I. was comfortable with short-term sexual relationships and role playing.
The prosecutor asked J.I. about her conversation with Lewis about sex. J.I. testified that
Lewis told her that he “like[d] forcible sex” and that she “wanted to know what he meant
by that.” She also testified that she assumed that Lewis was “probably going to tell [her]
. . . he like[d] role playing, something like that.” The prosecutor asserted in closing
argument that “[t]his isn’t a boyfriend done wrong. There is no basis for her to make up a
rape accusation. . . . There is no hurt pride. [ J.I.] is not a woman who would be ashamed
about having a sexual relationship with somebody; she is up there talking about role
playing.”
J.I. did not specifically testify that she was comfortable with short -term sexual
relationships or role-playing. However, the prosecutor’s statements could have been based
on J.I.’s demeanor while describing her conversation with Lewis. On this record, we
cannot conclude that the prosecutor’s statements constitute misconduct.
Disparaging the defense
Lewis argues that the prosecutor disparaged the defense and defense counsel. “The
[s]tate has a right to vigorously argue its case and it can argue that the evidence does not
support particular defenses.” State v. Graham , 764 N.W.2d 340, 356 (Minn. 2009)
(quotation omitted). “A prosecutor may [also] argue that there is no merit to a particular
defense.” State v. Martin, 773 N.W.2d 89, 108 (Minn. 2009). However, the state may not
“belittle the defense, either in the abstract or by suggesting that the de fense was raised
because it was the only defense that might succeed.” Id.

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Here, the prosecutor stated, “The only thing counsel has got, she didn’t get to go to
Denny’s. She didn’t [get] to go to Denny’s so she fabricated a sexual assault. She
manufactured a vaginal tear.” Immediately after making this statement, the prosecutor
argued that, based on J.I.’s testimony, there was no merit to the argument that J.I. fabricated
the sexual assault . The prosecutor asked the jury to consider the implic ations of that
argument: “Think about it, contriving a serious criminal sexual conduct charge. Tearing
her own vagina, is that what she did?” The prosecutor did not disparage the defense or
defense counsel. Rather, the prosecutor permissibly argued that, based on the evidence in
the record, there was no merit to Lewis’s defense.
Lewis asserts that the prosecutor also committed misconduct by commenting on the
defense’s failure to call an expert witness to testify about mixing alcohol with J.I.’s
medications. “In general, it is improper for a prosecutor to comment on a defendant’s
failure to call a witness or contradict testimony.” State v. Johnson, 672 N.W.2d 235, 240
(Minn. App. 2003), review denied (Minn. Mar. 16, 2004).
In her rebuttal, the prosecutor s tated, “Counsel talked about mixing alcohol and
medication. You heard no expert testimony about what effect, if any, mixing [J.I.’s]
alcohol with the medications she is on had. So why talk about it? Well, one, it makes her
look bad, doesn’t it?” Although the prosecutor comment ed on the absence of expert
testimony, she did not specifically state that the defense failed to call an expert witness.
Rather, she stated that the jury had heard no evidence about how alcohol and J.I.’s
medications interact. Fur thermore, the prosecutor only addressed the absence of expert
testimony after defense counsel asked, in his closing argument,

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Are there some questions about [J.I.’s] story? Could she be
wrong? Could her memory be wrong about what happened,
given the fac t she is on alcohol and medication? . . . What
happens when you are on – drinking alcohol and on pain
medication? There are things that you normally wouldn’t do
and you regret what happened because you feel the
consequence of what happened.

A prosecutor “is free to argue that there is no merit to a particular defense or
argument.” State v. Ashby, 567 N.W.2d 21, 28 (Minn. 1997). Also, it is not misconduct
to highlight the lack of evidence supporting the defense’s theory. State v. Gassler, 505
N.W.2d 62, 69 (Minn. 1993). Here, given that Lewis raised the issue of alcohol interacting
with medication and asked the jury to consider how that interaction could play a role in
J.I.’s memory, we conclude that the prosecutor did not commit misconduct.
The errors were plain
To determine whether an error was plain, this court looks to the law in existence at
the time of appellate review. State v. Kelley, 855 N.W.2d 269, 277 (Minn. 2014). The law
with regard to the four instances of misconduct identified earlier i n this opinion was plain
at the time of appellate review. Therefore, Lewis has satisfied the first two steps of the
modified plain-error test.
Prejudice
We must now decide whether the state has met its burden in establishing that the
misconduct did not affect Lewis’s substantial rights. See Carridine, 812 N.W.2d at 146.
To decide whether a plain error affected a n appellant’s substantial rights, this court
considers three factors: “(1) the strength of the evidence against the defendant; (2) the
pervasiveness of the improper conduct; and (3) whether the defendant had an opportunity

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(or made efforts) to rebut the prosecutor’s improper suggestions.” State v. Hill , 801
N.W.2d 646, 654-55 (Minn. 2011).
First, the evidence against Lewis was strong. J.I. testified that Lewis touched her
breasts over her clothing and that she slapped his hands away and told him “I’m not having
sex with you.” J.I. testified that Lewis pushed her against a wall and started kissing her “to
where it felt like he was trying to shove his tongue down [her] throat.” Then, Lewis started
kissing J.I. more forcefully, creating soreness from her dentures and cutting the inside of
her lip. J.I. “tr[ied] to tell [Lewis] no.” J.I. testified that Lewis “kind of whipped [her]
around and threw [her] into [a] chair.” She ended up with her head “crunched into the side
of the chair.” J.I. testified that this hurt, she was scared, and she tried to fight Lewis by
pushing him away. J.I. testified that Lewis put his penis inside her and that i t “felt like he
was ripping [her] apart.”
An officer who responded to J.I.’s 911 call testified that J.I. was “upset, distraught,
[and] emotional” and she “would just randomly start to cry ” when reporting the assault.
J.I. reported that she had been grab bed by the wrists, and the officer testified that he
observed a small bruise on her wrist.
A sexual assault nurse examiner (SANE) testified that, during her examination, J.I.
was tearful, tense, anxious, and wringing her hands. The SANE testified that J.I. identified
the assailant as someone she had met at a bar that night. The SANE testified that J.I. had
bruising on her right inner wrist, an abrasion on the corner of her mouth, and a tear to the
“inner fold of her labia into the labia minora and the la bia majora.” The SANE testified
that J.I.’s vaginal injury could be consistent with forced penetration.

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Lewis testified in his own defense, but he admitted to lying numerous times,
including: giving J.I. a false name; telling J.I. he was not married; tel ling J.I. he had no
children; giving J.I. a fake phone number; telling J.I. he thought he could start a relationship
with her; initially telling the police that he never touched J.I.; telling the police that his
semen would be nowhere in J.I.’s home; and telling the police on a separate occasion that
he ejaculated on J.I.’s breasts but did not sexually penetrate her. This evidence, taken
together, weighs heavily against the conclusion that Lewis was prejudiced by the
prosecutorial misconduct in closing argument.
Nonetheless, the prosecutor engaged in multiple, separate instances of misconduct
during closing argument. Lewis compares this case to State v. Mayhorn , in which the
supreme court reversed the appellant’s conviction, despite the state’s “strong ca se against
[him],” because “[t]he prosecutor’s misconduct was a pervasive force at trial.” 720 N.W.2d
776, 791 (Minn. 2006). The supreme court noted that the prosecutor
commented on the defendant’s credibility, appealed to the
passions of the jury, commented on [the defendant]’s failure to
call a witness, intentionally misstated evidence, asked a “were
they lying” question, referred to threats made by [the
defendant] not in evidence, aligned herself with the jury,
improperly attacked [the defendant]’s ch aracter, commented
on [the defendant]’s opportunity to tailor his testimony, and
commented on the credibility of a witness.

Id. Due to the number of errors and the seriousness of some of them, the supreme court
concluded that it could not determine wheth er the jury’s verdict was based on admissible
evidence and reasonable inferences, or if it was based on the state’s “pervasive
misconduct.” Id. at 792. Although Lewis correctly points to select phrases or remarks

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made during closing argument that contravene Minnesota law, we must look at the closing
argument as a whole. Smith, 876 N.W.2d at 3 35. Comparing Mayhorn to this case, we
conclude that the misconduct here does not rise to the level of “pervasive misconduct” that
would necessitate reversal and a new trial. See 720 N.W.2d at 792.
Defense counsel also addressed much of the prosecutor’s misconduct during his
own closing argument. Defense counsel argued that “it’s clear that [the prosecutor] is
relying on a whole lot of sympathy on your heart for [J.I.]” He also stated that “it sounded
like [the prosecutor] was starting to get into questions about women’s rights and how
women are mistreated and how women are not believed.” Defense counsel also explained
that “[t]his case isn’t about any of that. This case is about these two individ uals and how
they made a decision that affects my client’s life.”
Additionally, the district court’s jury instructions lessened any prejudice that
resulted from the misconduct. The district court’s jury instructions are relevant to
determining whether the jury was unduly influenced by prosecutorial misconduct. State v.
Washington, 521 N.W.2d 35, 40 (Minn. 1994). Here, the district court instructed the jury
that “the arguments or other remarks of an attorney are not evidence.” The district court
also instructed the jury that “[e]vidence is what the witnesses say and also any exhibits that
may be submitted to you.” These instructions helped to negate prejudice that may have
occurred as a result of the prosecutor’s misconduct. See In re Welfare of D.D. R., 713
N.W.2d 891, 900 (Minn. App. 2006) (“Overall, the instructions were sufficient to negate
. . . any prejudice that may have occurred as a result of misconduct.”).

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Finally, Lewis argues that the prosecutorial misconduct was particularly prejudicial
because the case hinged on the jury’s assessment of J.I.’s and Lewis’s credibility. When
“credibility is the central issue, . . . special attention should be paid to statements that may
prejudice or inflame the jury.” State v. Rucker, 752 N.W.2d 538, 551 (Minn. App. 2008),
review denied (Minn. Sept. 23, 2008). “Prosecutors in sexual abuse cases must abide by
the highest behavior.” State v. Danielson , 377 N.W.2d 59, 61 (Minn. App. 1985)
(quotation omitted). “Because sexual-abuse cases generally evoke emotional reactions, an
attempt by the prosecutor to exacerbate such reactions by making any emotive appeal to
the jury is likely to be highly prejudicial.” Rucker, 752 N.W.2d at 551 (quotations omitted).
Credibility was an important issue in this case, given that there were no witnesses
to the sexual contact other than J.I. and Lewis. However, J.I.’s testimony was corroborated
by physical evidence, including DNA. Additionally, multiple witnesses testified that after
J.I. called the police, she appeared to be emotional and highly upset. Lewis also admitted
to lying to the police on multiple occasions during the investigation.
Because the evidence against Lewis was strong, the prosecutor’s misconduct was
not pervasive, defense counsel countered much of t he misconduct, and the district court
properly instructed the jury, we conclude that the state met its burden of establishing that
the prosecutorial misconduct did not affect Lewis’s substantial rights. Lewis is not entitled
to a new trial.

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Criminal-history score
Lewis next challenges the criminal-history score used to determine his sentence .
We review the district court’s determination of a defendant’s criminal-history score for an
abuse of discretion. State v. Maley, 714 N.W.2d 708, 711 (Minn. App. 2006).
The district court may not use out -of-state convictions in calculating a defendant’s
criminal-history score unless the state lays proper foundation to do so. Id. The state must
establish the facts necessary to justify consideration of out -of-state c onvictions to
determine a criminal-history score. State v. McAdoo, 330 N.W.2d 104, 109 (Minn. 1983).
Specifically, t he state must prove by a preponderance of the evidence “that the prior
conviction was valid, the defendant was the person involved, and the crime would
constitute a felony in Minnesota.” Maley, 714 N.W.2d at 711. Minnesota Rule of Evidence
1005 identifies the appropriate standard to document a conviction:
The contents of an official record, or of a document
authorized to be recorded or filed and actually recorded or
filed, including data compilations in any form, if otherwise
admissible, may be proved by copy, certified as correct in
accordance with rule 902 or testified to be correct by a witness
who has compared it with the original. If a copy which
complies with the foregoing cannot be obtained by the exercise
of reasonable diligence, then other evi dence of the contents
may be given.

Minn. R. Evid. 1005; State v. Griffin, 336 N.W.2d 519, 525 (Minn. 1983) . The state may
also use oral testimony to prove the contents of official records. Maley, 714 N.W.2d at
712.
In State v. Outlaw, the appellant ch allenged the calculation of his criminal -history
score even though he had not previously objected to the district court’s determination that

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some of his out-of-state convictions were felonies. 748 N.W.2d 349, 356 (Minn. App.
2008), review denied (Minn. July 15, 2008). Although this court conclud ed that the state
had not proved that several of the appellant’s prior convictions were felonies under
Minnesota law, this court clarified that the state “is permitted to further develop the
sentencing record so that the district court can appropriately make its determination.” Id.
Here, the only documentation in the record supporting Lewis’s criminal -history
score is the PSI and Lewis’s sentencing worksheet. The PSI indicates that Lewis was
convicted of “[d]omes tic [b]attery” and sentenced to supervised probation for two years.
Neither the PSI nor the sentencing worksheet indicate the statute under which Lewis was
convicted. Like Outlaw, the state has not proved that Lewis’s conviction is a felony under
Minnesota law. Because Lewis did not previously challenge the calculation of his
criminal-history score, we reverse Lewis’s sentence and remand to the district court, where
the state may further develop the sentencing record so that the district court can
appropriately determine whether Lewis’s prior conviction would constitute a felony in
Minnesota. See id.
Lesser-included offense
Lewis argues that his conviction for third -degree criminal sexual conduct must be
vacated because it is an included offense of fir st-degree criminal sexual conduct. Minn.
Stat. § 609.04, subd. 1 (2016) provides that “[u]pon prosecution for a crime, the actor may
be convicted of either the crime charged or an included offense, but not both.” When a
defendant is found guilty on multi ple charges for the same act, the district court should
formally adjudicate and impose sentence on only one count. State v. LaTourelle , 343

15
N.W.2d 277, 284 (Minn. 1984). The other guilty verdicts should not be formally
adjudicated at that time. Id. “If the adjudicated conviction is later vacated for a reason not
relevant to the remaining unadjudicated [guilty verdicts ], one of [them] can then be
formally adjudicated and sentence imposed . . . .” Id. This court “look[s] to the official
judgment of conviction in the district court file as conclusive evidence of whether an
offense has been formally adjudicated.” Spann v. State, 740 N.W.2d 570, 573 (Minn. 2007)
(quotations omitted).
Lewis was convicted of first- and third-degree criminal sexual conduct. “[T]hird
degree criminal sexual conduct is an included offense of first degree criminal sexual
conduct.” State v. Hart, 477 N.W.2d 732, 737 (Minn. App. 1991) , review denied (Minn.
Jan. 16, 1992) . Ther efore, we reverse in part and remand to the district court with
instructions to vacate the conviction for third-degree criminal sexual conduct.
Pro se supplemental brief
Lewis raises numerous arguments in his pro se sup plemental brief, including:
(1) deprivation of an evidentiary hearing; (2) sufficiency of the evidence; (3) prosecutorial
misconduct; (4) ineffective assistance of counsel; (5) evidentiary violations; and
(6) sentencing violations. Lewis also raises “additional argumentative points,” which
appears to be a list of statements made at trial that Lewis claims are false. Finally, Lewis
raises a list of “plain and harmful errors,” in which he appears to argue that the district
court made numerous evidentiary errors and his Sixth Amendment rights were violated.
Lewis cites statutes, rules, and case law, but it is not clear from his brief how they
apply to his case. This court does “not consider pro se claims on appeal that are

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unsupported by either argument s or citations to legal authority.” State v. Bartylla , 755
N.W.2d 8, 22 (Minn. 2008). “An assignment of error based on mere assertion an d not
supported by any argument or authorities . . . is waived and will not be considered on appeal
unless prejudicial error is obvious on mere inspection. ” Id. at 23 (quoting Louden v.
Louden, 221 Minn. 338, 339, 22 N.W.2d 164, 166 (1946)).
Although Lewis cites a great deal of legal authority, he has not adequately argued
how those legal authorities entitle him to relief. We conclude that Lewis forfeited these
pro se claims.
Affirmed in part, reversed in part, and remanded.