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This opinion will be unpublished and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
A17-1590

State of Minnesota,
Respondent,

vs.

Nicholas Sean Perkins,
Appellant

Filed September 24, 2018
Affirmed; motion granted
Smith, John, Judge*

Washington County District Court
File No. 82-CR-16-4122

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

Pete Orput, Washington County Attorney, Nicholas A. Hydukovich, Assistant County
Attorney, Stillwater, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Charles F. Clippert, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Schellhas, Presiding Judge; Larkin, Judge; and Smith,
John, Judge.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.

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U N P U B L I S H E D O P I N I O N
SMITH, JOHN, Judge
We affirm appellant Nic holas Sean Perkins’ s conviction of first -degree criminal
sexual conduct because the district court did not abuse its discretion in admitting evidence,
the prosecutor did not commit misconduct , and Perkins did not receive ineffective
assistance of counsel.
FACTS
While staying at a hotel, S.A. and her husband, J.A., went out for dinner at a
restaurant, where they met appellant Nicholas Sean Perkins and Kyle Ka zle, who were
sitting at a nearby table. Following some pleasant conversation, S.A. and J.A. invited
Perkins and Kazle to come to the hotel to go swimming with them, and Perkins and Kazle
accepted the invitation. In the hotel room, Perkins took some pills, which he identified as
Xanax. Perkins asked S.A. and J.A. if they minded what he had done or were going to
report him, and S.A. and J.A. responded that they did not do that but were not going to
judge him.
The group brought alcoholic drinks down to t he pool and swam and used the hot
tub. After the group had been swimming for two or three hours, Perkins’s girlfriend came
to the hotel, and the two left together. Perkins returned alone a short time later, and the
group continued swimming for about another hour. At that point, Kazle was making rude
comments to S.A., and Perkins was acting “hyper.” S.A. told Kazle and Perkins that they
needed to leave . J.A. brought Kazle up to the room to get his belongings , and S.A. and
Perkins remained in the hotel courtyard.

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When J.A. and Kazle went up to the room, Perkins sat down next to S.A. on a bench
in the courtyard and put his hand on her leg and squeezed. S.A. pushed his hand away and
texted J.A. to hurry up and get back to the courtyard. Perkins then put h is hand on S.A.’s
chin, pulled her face into his, and kissed her. S.A. again pushed Perkins away. J.A. came
out onto the balcony from the hotel room, which overlooked the courtyard, and asked about
Perkins’s backpack. S.A. said that it was in the pool area and told J.A. twice that he needed
to hurry and get back to the courtyard. A room key was needed to enter the hotel from the
courtyard, and S.A. did not have her room key with her. S.A. was concerned, but she
thought she had made clear to Perkins that she was not interested in his advances.
When J.A. went back into the hotel room, Perkins pushed on S.A.’s neck and
collarbone to get her head down toward the bench. S.A. sent a text message to 911 but
received a response that she had to call 911. S.A. then texted J.A., but J.A.’s phone was
charging, and he did not see the message. S.A. remembered that Perkins’s girlfriend came
from the back of the courtyard, so she shoved Perkins off of her and tried to find a way out
of the courtyard.
Perkins came after S.A. and pushed her in the back, causing her to fall to her knees.
S.A. tried to crawl toward the door, but Perkins shoved her back into the ground and pulled
her hair. S.A. rolled over to try to get Perkins off of her, and he scratched her face. S. A.
tried to crawl back toward the pool where it was lighted, hoping that J.A. might see her
from the balcony . Perkins grabbed S.A. by the hips, pulled aside the bottom of her
swimsuit, preventing her from escaping, and repeatedly penetrated her an ally and
vaginally.

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The courtyard door opened, and Perkins “instantly” got off of S.A. As J.A.
approached, he saw Perkins standing over S.A. with “[o]ne foot on each side of her,
standing on her -- over her back, [near] her hips.” Perkins claimed that S.A. had slipped
and fallen. J.A. helped S.A. off the ground. S.A. was shaking and crying, and she told J.A.
that Perkins had attacked her, raped her, and hurt her.
S.A. sat down in the courtyard, and Kazle sat next to her and said, “I’m sorry this
happened to yo u. I knew this was going to happen. That’s why we wanted to leave, but
please, wait to call 9 -1-1 until we leave. I know you’re entitled to call 9 -1-1, but wait.”
S.A. went to the hotel’s front desk, and a clerk called 911. S.A.’s fingers were covered i n
dirt, and she had scratches and bruises on her arms.
Woodbury Police Officer Lucas Rogers talked to S.A. at the hotel. Rogers described
S.A. as “very upset,” “noticeably shaking,” and “crying” with dirt and grass on her body .
S.A. told Rogers she had been sexually assaulted by a male named Nick. Rogers called an
ambulance for S.A.
At the hospital, S.A. was evaluated by Rebecca Richardson, a Sexual Assault Nurse
Examiner. Richardson saw that S.A. had dirt on her neck and face an d in her fingernails.
S.A.’s face was covered with dirt, and S.A. had dirt in her mouth. S.A. was upset and cried
periodically during the exam. Richardson noted abrasions, bruises, and scratches in
numerous places on S.A.’s body. S.A.’s description of the sexual assault to R ichardson
was consistent with S.A.’s trial testimony. During the physical examination, Richardson
observed bruising on one side of S.A.’s anal cavity.

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The sexual assault evidence collection kit, S.A.’s swimsuit, and articles of Perkins’s
clothing were br ought to the Minnesota Bureau of Criminal Apprehension for analysis.
Semen was not found in the sexual assault evidence collection kit or S.A.’s swimsuit. But
DNA that matched Perkins’s was found on swabs taken from S.A.’s neck and S.A.’s left
arm. DNA that matched S.A.’s was found inside the crotch area of Perkins’s shorts.
The jury found Perkins guilty of first -degree criminal sexual conduct. The district
court denied Perkins’s new-trial motion.
D E C I S I O N
I.
Kazle made statements to S.A. shortly after Perkins assaulted her. Perkins objected
to the admission of Kazle’s statements as hearsay, not as a violation of his right to confront
witnesses. “[W]hether the admission of evidence violates a criminal defendant’s rights
under the Confrontation Clause is a question of law,” which this court reviews de novo.
State v. Caulfield, 722 N.W.2d 304, 308 (Minn. 2006). The supreme court has indicated
that plain-error review may apply when a defendant at trial objects to ev idence as hearsay
but not as a violation of the Confrontation Clause. State v. Hull , 788 N.W.2d 91, 100
(Minn. 2010) (noting that “other state courts have held that a hearsay objection at trial is
not sufficient to preserve a confrontation clause objectio n on appeal” but declining “to
decide the effect, if any, of the hearsay objection on the appropriate standard of review on
appeal” when both parties agreed that plain-error review applied (quotation omitted)); see
also Minn. R. Evid. 103(a)(1) (stating th at to preserve an objection to the admission of
evidence, a defendant must “timely object[]” and “stat[e] the specific ground of objection,

6
if the specific ground was not apparent from the context”). Under the plain-error standard,
a defendant must show t hat there is “(1) error, (2) that is plain, and (3) that affects
substantial rights.” State v. Martinez, 725 N.W.2d 733, 738 (Minn. 2007) ; see also State
v. Ramey, 721 N.W.2d 294, 300 (Minn. 2006) (stating that the defendant has the burden of
showing that each of the three prongs is satisfied).
The Confrontation Clause provides a criminal defendant the right “to be confronted
with the witnesses against him.” U.S. Const. amend. VI; see also Minn. Const. art. I, § 6;
see also Hull, 788 N.W.2d at 100 (stating that analysis of a Confrontation–Clause claim is
the same under either the federal or Minnesota constitution). “A successful Confrontation
Clause claim has three prerequisites: the statement in question was testimonial, the
statement was admitted for the truth of the matter asserted, and the defendant was unable
to cross-examine the declarant.” Andersen v. State, 830 N.W.2d 1, 9 (Minn. 2013) (citing
Crawford v. Washington , 541 U.S. 36, 59 & n.9, 124 S. Ct. 1354, 1369 & n.9 (2004)).
“Statements made to nongovernment questioners, who are not acting in concert with or as
an agent of the government, are considered nontestimonial.” State v. Ahmed, 782 N.W.2d
253, 259 (Minn. App. 2010) (quotation omitted).
Kazle made the statements to S.A. shortly after Perkins sexually assaulted her. S.A.
was not acting in concert with or as a government agent, and the statement was made before
she contacted law enforcement. A detective also testified about Kazle’s statement, stating
that S.A. said that Kazle said that he knew something bad was going to happen and asked
her to wait to call 911. Even though the detective was a government agent, her testimony
did not implicate the Confrontation Clause because the detective was testifying about

7
S.A.’s statement to her; Kazle did not make a statement to the detective, S.A. testified and
was subject to cross -examination, and the detective’s testimony did not add anything to
S.A.’s testimony about Kazle’s statement. The detective also testified that she listened to
a statement that Kazle made to another officer, but the contents of that statement w ere not
disclosed at trial. The fact that Kazle made a statement to a police officer, the contents of
which were not disclosed at trial, does not make his statement to S.A. testimonial. Because
Perkins has failed to show that Kazle’s statement to S.A. was testimonial, we cannot
conclude that the district court erred in admitting the testimony about the statement.
In his reply brief, Perkins argues that eve n if the admission of Kazle’s statements
did not violate the Confrontation Clause, he should be granted a new trial because the
statements were inadmissible hearsay. We decline to address this issue. See S tate v.
Thompson, 873 N.W.2d 873, 876 n.1 (Minn. App. 2015) (“Generally, issues not raised or
argued in an appellant’s principal brief cannot be revived in a reply brief.”) , aff’d, 886
N.W.2d 224 (Minn. 2016).
And we grant the state ’s motion to strike this argument from Perkins ’s reply
brief. See Minn. R. Civ. App. P. 128.02, subd. 3; State v. Yang , 774 N.W.2d 539, 558
(Minn. 2009) (granting motion to strike argument raised for the first time in appellant ’s
reply brief).
II.
Perkins argues that the prosecutor committed misconduct by eliciting evidence that
S.A. and J.A. did not engage in anal sex. Perkins did not object to the elicitation of the
evidence at trial. Unobjected-to claims of prosecutorial misconduct are generally reviewed

8
under a modified plain -error analysis. Ramey, 721 N.W.2d at 302. The defendant
continues to have the burden to “demonstrate both that error occurred and that the error
was plain.” Id. If the defendant meets this burden, the burden then shift s to the s tate to
show that the misconduct did not affect the defendant’s substantial rights. Id.
A prosecutor may not “knowingly and for the purpose of bringing inadmissible
matter to the attention of the judge or jury to offer inadmissible evidence, as k legally
objectionable questions, or make other impermissible comments or arguments in the
presence of the judge or jury.” State v. White, 203 N.W.2d 852, 857 (Minn. 1973). In a
criminal-sexual-conduct case, “evidence of the victim’s previous sexual conduct shall not
be admitted nor shall any reference to such conduct be made in the presence of the jury”
unless an enumerated exception applies and “the probative value of the evidence is not
substantially outweighed by its inflammatory or prejudicial nature.” Minn. Stat. § 609.347,
subd. 3 (2016); Minn. R. Evid. 412 . The rape-shield law applies to both the prosecution
and defense. State v. Wenthe, 865 N.W.2d 293, 306-07 (Minn. 2015).
During her testimony, S.A. spontaneously stated that she and J.A. did not engage in
anal sex. Later, the prosecutor asked J.A. if he and S.A. had engaged in anal sex, and J.A.
said that they had never done that. Finally, the prosecutor asked the nurse examiner about
the section of her report in which she asked S.A. for her physical and emotional reactions
to the sexual assault. The nurse examiner testified that S.A. said, “I was in a lot of pain. I
was very sore, and my bottom hurts so bad. I didn’t even let my husband do that.”
Although the evidence in this case does not come within an enumerated exception,
the supreme court has stated that “[t]he rape -shield law serves to emphasize the general

9
irrelevance of a victim ’s sexual history, not to remove relevant evidence from the jury ’s
consideration.” Wenthe, 865 N.W.2d at 306 (quotation omitted); see also State v. Crims,
540 N.W.2d 860, 867 (Minn. App. 1995) (stating that the rape-shield law “serves to remind
the bench that the victim’s sexual history is normally irrelevant in a sexual assault
prosecution”), review denied (Minn. Jan. 23, 1996). The evidence in this case was relevant
to show that Perkins caused personal injury to S.A. , which is an element of first -degree
criminal sexual conduct. See Minn. Stat. § 609.342, subd. 1(e)(i) (2016). Thus, admission
of the evidence was consistent with the purpose of the rape-shield law and the probative
value outweighs any prejudice. Perkins, therefore, has failed to meet his burden of showing
that plain error occurred. See State v. Sanchez -Sanchez, 879 N.W.2d 324, 330 (Mi nn.
2016) (stating that “[a] plain error is an error that is clear or obvious at the time of appeal,”
meaning that “it contravenes case law, a rule, or a standard of conduct” (quotations
omitted)).1
III.
A prosecutor is not required to make a colorless closing argument and “has the right
to present to the jury all legitimate arguments on the evidence, to analyze and explain the
evidence, and to present all proper inferences to be drawn therefrom.” State v. Williams,

1 The state argues that a defendant a sserting that a prosecutor committed misconduct by
offering inadmissible evidence “has imposed on himself a higher threshold than plain
error,” which would apply to a claim that the district court erred by failing to exclude
unobjected-to evidence, and “must also show that the state had no good-faith basis to argue
for admissibility and elicited the testimony knowing that it was inadmissible.” State v.
Jackson, 714 N.W.2d 681, 698 (Minn. 2006) (Hanson, J., concurring). Because Perkins is
not entitled to reversal under the plain-error standard, we need not address this issue.

10
586 N.W.2d 123, 127 (Minn. 1998). A prosecutor may point to circumstances that cast
doubt on a witness’s credibility or that corroborate his or her testimony. State v. Smith ,
825 N.W.2d 131, 139 (Minn. App. 2012) (quotation omitted), review denied (Minn. Mar.
19, 2013). It is not improper f or a prosecutor “to analyze the evidence and argue that
particular witnesses were or were not credible.” State v. Wright, 719 N.W.2d 910, 918-19
(Minn. 2006). We consider a closing argument as a whole rather than focusing on
particular statements in isolation. State v. Johnson, 616 N.W.2d 720, 728 (Minn. 2000).
Perkins objected at trial to two statements that occurred at the beginning of rebuttal.
The rebuttal begins with the prosecutor saying, “Are you buying what he says? Because
here’s what he’s say ing to you: I didn’t penetrate her.” The district court overruled
Perkins’s objection, and the prosecutor continued:
PROSECUTOR: Here’s what he’s telling us: I didn’t
penetrate her, but if you found out that I did, then it was
consensual, and I didn’t u se force. That was the defense’s
argument. But now they’re consent —now they’re agreeing
and conceding that there was penetration. Wait a minute.
When did [Perkins] say that? He didn’t. Expressly denied all
sexual contact, but now they’re admitting it, right? Now
they’re admitting it. Counsel said many things that were just
flat-out inaccurate about what the evidence showed.
DEFENSE COUNSEL: Objection, improper argument.
DISTRICT COURT: Sustained.
PROSECUTOR: [Defense Counsel] said that there were
multiple anal penetrations. That’s not the testimony. He
penetrated her one time anally, five to ten times vaginally.
That’s just flat out wrong what he was saying. He also said
that—also said that [S.A.] and her husband wouldn’t concede
to drinking. Absolutely they told you they were drinking.
Absolutely. In fact, she said she poured stiff drinks, three -to-
one—four-to-one, excuse me. And she did have a number of
drinks, but they kept being taken from her, so she kept having

11
to fill it back up. [J.A.] didn’t deny drinking that night. He did
tell you he was in more control than [Perkins] was.

Although the district court sustained an objection to the prosecutor’s statement that
Perkins’s counsel said things that were “flat -out inaccurate about what the evidence
showed,” the prosecutor then gave two specific examples of Perkins’s counsel misstating
the evidence during closing argument. Read as a whole, this argument goes to Perkins’s
credibility and was not improper.
Perkins a lso argues that the prosecutor committed misconduct by “repeatedly
referr[ing] to the victim’s prior sexual conduct to bolster her credibility ” and by referring
to Kazle’s statement that he “knew this was going to happen.” Perkins did not object to
this a rgument at trial, so it is reviewed under the modified plain -error test already
discussed. See Ramey, 721 N.W.2d at 302. During closing argument, the prosecutor noted
that the bruising in S.A.’s anus could not have been caused by J.A. and was consistent with
S.A.’s account of the sexual assault. The prosecutor mentioned Kazle’s statement only
briefly.
Because admission of the evidence was not plain error, it was not plain error for the
prosecutor to refer to it during closing argument. And any error in referring to the evidence
did not affect Perkins’s substantial rights. See State v. Davis, 735 N.W.2d 674, 682 (Minn.
2007) (stating that when determining whether a reasonable likelihood exists that
prosecutorial misconduct had a significant effect on the verdict, appellate courts “consider
the strength of the evidence against the defendant, the pervasiveness of the improper
suggestions, and whether the defendant had an opportunity to (or made efforts to) rebut the

12
improper suggestions”). The state’s case was extremely strong, as already discussed ; the
references to the victim’s sexual history and Kazl e’s statements were isolated and brief;
and Perkins had the opportunity to respond to the argument.
IV.
In a pro se supplemental brief, Perkins makes additional claims of prosecutorial
misconduct. Perkins argues that the prosecutor disparaged the defense by noting that S.A.
broke down after defense counsel asked her the same question numerous times. The district
court sustained an objection to that remark and instructed the jury to disregard it. Jurors
are “presumed to have followed the district court’s instruction to disregard statements as
to which an objection has been sustained.” State v. Bauer, 776 N.W.2d 462, 472 (Minn.
App. 2009), aff’d. 792 N.W.2d 825 (Minn. Jan. 5, 2011).
Perkins also argues that the prosecutor erred by using the words “monster” and
“sinister” to describe him. The prosecutor discussed S.A. and J.A. being trusting and
perhaps naïve to explain why they would invite Pe rkins and Kazle back to the hotel to go
swimming with them. The prosecutor noted that , at first, S.A. and J.A. were having fun
with Perkins and Kazle and then Perkins’s behavior changed as the evening progressed,
ending with Perkins sexually assaulting S.A. The prosecutor described Perkins as a man
who “turned out to be a monster.” When addressing the details of the sexual assault, the
prosecutor described Perkins’s motive in pushing S.A. to the ground as “sinister.” Whe n
read in context, the prosecutor’s description of Perkins showed how he deceived S.A. and
J.A. Perkins did not object to this argument at trial, and any impropriety in it did not affect
Perkins’s substantial rights.

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Perkins argues that the prosecutor ex amined the detective in a way that “distorted
. . . reality” by implying that scratches on Perkins neck were defensive wounds. Perkins
does not explain how the questioning distorted reality or implied that Perkins’s injuries
were defensive or why that would have been improper. This court will not consider pro se
claims unsupported by argument or legal authority. State v. Bartylla , 755 N.W.2d 8, 22
(Minn. 2008).
When multiple trial errors are alleged, an appellant is entitled to a new trial if the
cumulative effect of the errors effectively denied him a fair trial. Jackson, 714 N.W.2d at
698. “Cumulative error exists when the cumulative effect of the errors and indiscretions,
none of which alone might have been enough to tip the scales, operate to the d efendant’s
prejudice by producing a biased jury.” State v. Penkaty , 708 N.W.2d 185, 200 (Minn.
2006) (quotation omitted)). A new trial is only awarded “in rare cases.” State v. Fraga,
898 N.W.2d 263, 278 (Minn. 2017). A reviewing court is “more incline d to order a new
trial for cumulative errors in very close factual cases.” Id. at 279.
To the extent that any errors occurred, they were few, minor, and isolated. The
state’s case was extremely strong. Perkins received a fair trial.
Finally, in his pro se brief, Perkins argues that he received ineffective assistance of
counsel because there was a mistake in the PowerPoint presentation counsel used during
closing argument and because counsel made an unauthorized admission of guilt. Whether
trial counsel was ineffective presents a mixed question of law and fact, and is therefore
reviewed de novo. Griffin v. State , 883 N.W.2d 282, 287 (Minn. 2016). Counsel’s
performance presumably falls “within a wide range of reasonable representation.” Evans

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v. State , 788 N.W.2d 38, 45 (Minn. 2010). “Which witnesses to call at trial and what
information to present to the jury are questions that lie within the proper discretion of the
trial counsel. Such trial tactics should not be reviewed by an appellate court, which, unlike
[trial] counsel, has the benefit of hindsight.” State v. Jones, 392 N.W.2d 224, 236 (Minn.
1986).
Defense counsel is ineffective if counsel “admits a defendant’s guilt without
permission or acquiescence.” State v. Pilcher , 472 N.W.2d 327, 337 (Minn. 1991). A
defendant acquiesces to an admission of guilt by counsel if the admission is an
“understandable” trial strategy, the defendant was present when the admission was made,
the defendant understood that guilt was being conceded, and t he defendant did not object.
State v. Prtine, 784 N.W.2d 303, 318 (Minn. 2010).
Defense counsel stated during closing argument:
The question is whether or not there was penetration without
consent, causing personal injury, using force or coercion. I put
the green up there to show the part that has been proven.
Penetration, however slight, is considered penetration. The
rest of it, I argue to you now and I will continue arguing to you,
that the government hasn’t proved it.

The PowerPoint presentation is not in the record, but it appears that defense counsel
was conceding slight penetration. As the state argues, it would have been difficult to
credibly argue otherwise when S.A.’s DNA was inside the crotch area of Perkins’s shorts.

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Defense counsel a rgued mainly that the state failed to prove that Perkins engaged in
nonconsensual and forceful or coercive sex with S.A. Given the evidence, this was a
reasonable trial strategy, and Perkins did not object to the apparent and limited concession
during trial.
Affirmed; motion granted.