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This opinion will be unpublished and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
A17-1898

State of Minnesota,
Respondent,

vs.

Shawn Michael Peterson,
Appellant.

Filed September 10, 2018
Affirmed
Klaphake, Judge*

Chisago County District Court
File No. 13-CR-17-293

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

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

Cathryn Middlebrook, Chief Appellate Public Defender, Steven P. Russett, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Worke, Presiding Judge; Jesson, Judge; and Klaphake,
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
KLAPHAKE, Judge
Appellant Shawn Michael Peterson challenges his conviction for first-degree
criminal sexual conduct in violation of Minn. Stat. § 609.342, subd. 1(a) (2016) , arguing
that the district court abused its discretion by excluding alternative perpetrator/alternative
source-of-knowledge evidence, and that the prosecutor committed prejudicial misconduct
during closing argument. Because any abuse of discretion in the exclusion of the evidence
was harmless and because the prosecutor did not commit prejudicial misconduct, we
affirm.
D E C I S I O N
Exclusion of Evidence

“Evidentiary rulings rest within the sound discretion of the trial court and will not
be reversed absent a clear abuse of that discretion.” State v. Amos, 658 N.W.2d 201, 203
(Minn. 2003).
In a pretrial ruling, the district court excluded Peterson’s proffered evidence that
D.D.’s husband had sexually assaulted K.O., the mother of the child victim S. O., when
K.O. was a child . It also excluded Peterson’s proffered evidence that K.O.’s previous
boyfriend had been in the apartment before K.O. became romantically involved with
Peterson, and the previous boyfriend had “inappropriate” contact with S.O.
Courts may admit evidence of “a victim’s past sexual conduct[,] in all cases in which
admission is constitutionally required by the defendant’s right to due process, his right to
confront his accusers, or his right to offer evidence in his own defense.” State v. Benedict,

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397 N.W.2d 337, 341 (Minn. 1986). Accordingly, “[d]espite the prohibition of a rape -
shield law or rule, a trial court has discretion to admit evidence tending to establish a source
of knowledge of or familiarity with sexual matters in cir cumstances where the jury
otherwise would likely infer that the defendant was the source of the knowledge.” Id.
Before admitting such evidence, the district court must still “balance the probative value
of the evidence against its potential for causing unfair prejudice” and may exclude the
evidence based on that determination. Id.
The rationale for the district court’s exclusion of the evidence is unclear from the
district court record. T he district court may have determined the proffered evidence was
inadmissible under the rape-shield law, Minn. Stat. § 609.347, subd. 3 (2016), which would
constitute an abuse of discretion because the exclusion of the evidence would have violated
Peterson’s constitutional right to present a defense. Id. at 341. The existing record also
does not establish whether the district court balanced the probative and pr ejudicial nature
of the evidence, as required to properly determine its admissibility. Further, the record
suggests that the district court may have erred by addressing only Peterson’s alternative -
perpetrator argument and failing to address his alternative-source-of-knowledge argument.
See State v. DeLaCruz, 884 N.W.2d 878, 888 (Minn. App. 2016). Finally, the district court
may have misapplied the requirements for admitting reverse-Spreigl evidence,1 which are
different from those applicable to alternative-source-of-knowledge evidence. See Jones,

1 Reverse-Spreigl evidence is evidence of an alternative perpetrator committing prior bad
acts, which tends to show that the alternative perpetrator committed the crime in question.
See State v. Jones, 753 N.W.2d 677, 696 (Minn. 2008).

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753 N.W.2d at 696 (stating that reverse-Spreigl evidence is admissible only if the defendant
has shown, among other requirements, “clear and convincing evidence” that the alternative
perpetrator “participated in the incident”).
We determine, however, that any abuse of discretion by the district court in
excluding the evidence was harmless. This abuse of discretion is harmless if the reviewing
court is satisfied “beyond a reasonable doubt that if the e vidence had been admitted and
the damaging potential of the evidence fully realized, an average jury ( i.e., a reasonable
jury) would have reached the same verdict.” State v. Post , 512 N.W.2d 99, 102 (Minn.
1994). We are satisfied that such is the case he re. S.O. made a spontaneous report of the
abuse, the jury received evidence of her repeated and consistent statements to two police
officers on two occasions, and S.O. testified at trial. This case is similar to State v. Kroshus,
in which this court dete rmined that the erroneous exclu sion of the victim’s alternative -
source-of-knowledge evidence w as harmless. 447 N.W.2d 203, 205 (Minn. App. 1989),
review denied (Minn. Dec. 20, 1989). We are confident beyond a reasonable doubt that a
reasonable jury would have reached the same conclusion even if Peterson’s proffered
evidence had been admitted.
Prosecutorial Misconduct

A prosecutor engages in misconduct if her acts “materially undermin[e] the fairness
of a trial.” State v. Fields, 730 N.W.2d 777, 782 (Minn. 2007). This may occur when the
prosecutor “violates clear or established standards of conduct.” State v. McCray , 753
N.W.2d 746, 751 (Minn. 2008) (quotation omitted). When evaluating a prosecutor’s
closing remarks, this court examines “the closing argument as a whole, rather than selected

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phrases and remarks.” State v. Graham , 764 N.W.2d 340, 356 (Minn. 2009) (quotation
omitted). Misstating the presumption of innocence or the burden of proof is misconduct.
State v. Ramey, 721 N.W.2d 294, 302 (Minn. 2006).
Because Peterson did not object to two alleged instances of prosecutorial
misconduct, we review this issue under the modified plain-error test. Id. Under this test,
the appellant must show both that there was (1) error and (2) that the error was plain. Id.
Plain error is one that was clear or obvious, which may be the case if the error “contravenes
case law, a rule, or a standard of conduct.” Id. Then, once the appellant has prove d the
first and second parts of the test, the bur den shifts to the state to (3) “demonstrate lack of
prejudice; that is, the misconduct did not affect substantial rights.” Id. To do so, the state
must show that there is no “reasonable likelihood that the absence of the misconduct in
question would have had a significant effect on the verdict of the jury.” Id. (quotations
omitted). “If all three [parts] of the test are met, [this court] may correct the error only if
it seriously affect[s] the fairness, integrity, or public reputation of judicial procee dings.”
State v. Peltier, 874 N.W.2d 792, 804 (Minn. 2016) (quotations omitted).
At closing, the prosecutor said, “If you believe [S.O.’s testimony] then the [s]tate
has proven its case, beyond a reasonable doubt.” Peterson argues that the prosecutor
“misstated the state’s burden of proof.” While Peterson concedes that the testimony of a
single sexual-assault complainant can be sufficient to convict a defendant, see Minn. Stat.
§ 609.347, subd. 1 (2016), he relies on State v. Huss for the proposition that this is not
always the case. 506 N.W.2d 290, 292-93 (Minn. 1993). In Huss, the supreme court held
that the sole inculpatory testimony of a three -year-old victim was insufficient to convict a

6
defendant of criminal sexual conduct. Id. Since Huss, the supreme court has clarified that
a conviction may be sustained upon uncorroborated testimony unless there are “additional
reasons to question the victim’s credibility.” State v. For eman, 680 N.W.2d 536, 539
(Minn. 2004). U nlike the child victim in Huss, S.O.’s testimony was not obviously
unreliable; she gave consistent and detailed testimony. The evidence presented at
Peterson’s trial did not implicate Huss, and the prosecutor did not commit misconduct by
arguing to the jury that S.O.’s testimony was sufficient to find Peterson guilty.
We also reject Peterson’s assertion that the prosecutor’s statement amounted to an
impermissible “were they lying” question. See State v. Caine, 746 N.W.2d 339, 360 (Minn.
2008). Such questions “are permissible when the defendant holds the issue of the
credibility of the state’s witnesses in central focus.” State v. Morton, 701 N.W.2d 225, 233
(Minn. 2005) (quotation and alteration omitted), and this court has approved their use when
“the defense expressly or by unmistakable insinuation accuses a witness of a falsehood.”
State v. Leutschaft, 759 N.W.2d 414, 423 (Minn. App. 2009), review denied (Minn. Mar.
17, 2009). Here, the defense elicited testimony during trial that S.O. was not truthful.
In the second alleged instance of prosecutorial misconduct, the prosecutor stated
that Peterson had “lost that presumption of innocence and you should find him guilty.”
Peterson argues that this statement had the effect of misstating the proper burden of proof.
Again, we disagree. When the state “produce[s] sufficient evidence of [the defendant’s]
guilt to overcome the presumption of innocence,” the prosecutor may make such a
statement without altering the state’s burden to prove guilt beyond a reasonab le doubt.
State v. Young, 710 N.W.2d 272, 280-81 (Minn. 2006). Further, any error in making such

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a statement is “not plain or obvious.” State v. Vue, 797 N.W.2d 5, 14 (Minn. 2011). Here,
the prosecutor’s comments were similar to those made by the prose cutors in Young and
Vue, and, accordingly, the prosecutor did not commit misconduct amounting to plain error.
Finally, even if the prosecutor did plainly err, the error did not affect Peterson’s substantial
rights because the evidence against him was strong, any prosecutorial misconduct was not
pervasive, and defense counsel was generally able to rebut the misconduct. See Peltier,
874 N.W.2d at 806.
Affirmed.