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This opinion will be unpublished and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
A17-2006

State of Minnesota,
Respondent,

vs.

Robert Allen Oliver,
Appellant.

Filed November 19, 2018
Affirmed
Hooten, Judge

Polk County District Court
File No. 60-CR-16-1470

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

Greg Widseth, Polk County Attorney, Scott A. Buhler, Assistant County Attorney,
Crookston, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Jessica Merz Godes, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Hooten, Presiding Judge; Halbrooks, Judge; and
Bjorkman, Judge.

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U N P U B L I S H E D O P I N I O N
HOOTEN, Judge
Appellant argues that his conviction must be reversed because the state committed
prosecutorial misconduct by misstating the evidence and by vouching for the credibility of
the victim witness. We affirm.
FACTS
On August 8, 2016, appellant Robert Allen Oliver w ent to the home of his third
cousin, C.W., around 9:30 at nigh t. Upset over his recent break up, Oliver wanted to talk
to C.W. He brought a bottle of vodka with him and continued to drink while the two talked
in C.W.’s bedroom. Oliver became increasingly agitated throughout the evening. C.W.
told Oliver he needed to calm down or he would have to leave, which angered Oliver even
more. At 1:50 a .m., C.W. texted a friend, stating, “F ---, Oliver is drunk.” One minute
later, she texted her friend again, “He kinda scarying me.” Oliver told her he was not
leaving without having sex. When she told him “no,” he proceeded to grab her, throw her
down on her bed, and penetrate her vaginally with his fingers. C.W. managed to kick him
off, grab her phone, and flee from the room. She texted her friend again at 2:13 a .m.,
stating, “I need help to scared to call the cops he just tried to f--- me . can you call them for
me and send them to my place please.”
Notified by dispatch, Officer David Grabowski of the Crookston Police Department
found Oliver inside C.W.’s home with his pants unzipped and his penis partially exposed.
Oliver was arrested and charged with criminal sexual conduct in the second, third, and
fourth degree and felony domestic assault. After trial, the jury found Oliver guilty on all

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four charges and the district court entered a judgment of conviction of second -degree
criminal sexual conduct and felony domestic assault. This appeal follows.
D E C I S I O N
Oliver argues that the prosecutor committed prosecutorial misconduct on two
occasions during closing arguments. We reverse a district court’s determination regarding
alleged prosecutorial misconduct “only when the misconduct, considered in the context of
the trial as a whole, was so serious and prejudicial that the defendant’s constitutional right
to a fair trial was impaired.” State v. Johnson , 616 N.W.2d 720, 727 –28 (Minn. 2000).
We use a harmless-error test or a modified plain-error test depending on whether the
alleged misconduct was objected to at trial. State v. Dobbins, 725 N.W.2d 492, 506 (Minn.
2006).
Misstating the Evidence
Oliver argues that during closing arguments , the prosecutor misstated evidence of
Oliver’s statements to the police by suggesting that Oliver called C.W. one of his “bitches.”
Officer Grabrowski testified that after his arrest and on the way to the jail, Oliver said “that
he doesn’t need to take bitches, bitches come to him.” Once at the jail, Oliver referred to
C.W. as one of his girls, but explained that he meant she was one of his friends. Oliver
also alleged that C.W. made sexual advances towards him, but then contradicted his earlier
statement. Finally, he said, “I got—I got women. If I want to call some girls tonight, I got
girls I can call right now that’d come get me.”
Oliver challenges the following remarks made by the prosecutor during closing:

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[T]he defendant’s statements don’t make sense unless you
conclude that [C.W.] actually is his girl, that he’s —she’s one
of his bitches, and that’s she’s the instigator of this sexual
conduct. . . . And I wou ld ask that you conclude that [C.W.]
isn’t, in fact, one of Mr. Oliver’s bitches but is one of his
victims.

. . . .
The question is do you believe [C.W.] or if what you find what
the defendant told you—or told Officer Grabowski, excuse me,
that night in those two statements makes sense—someone who
says that she’s one of his women, that she came onto him, that
she wanted to sexually touch him, that bitches don’t —he
doesn’t have —bitches—or he doesn’t have to go to bitches,
bitches come to him, or something to that effect?

Oliver objected to the alleged misstatements of the evidence. We review objected-
to prosecutorial m isconduct for harmless error under a two -tiered test based on the
seriousness of the misconduct . State v. Hunt , 615 N.W.2d 294, 302 (Minn. 2000 ). We
review claims of unusually -serious prosecutorial misconduct for certainty beyond a
reasonable doubt that the conduct was harmless, while we review less -serious claims of
misconduct to determine if the misconduct likely played a substantial part in influencing
the jury to convict. State v. Yang, 774 N.W.2d 539, 559 (Minn. 2009).1
During closing argument s, a prosecutor may present “all legitimate arguments on
the evidence and all proper inferences that ca n be drawn from that evidence. ” State v.
Nissalke, 801 N.W.2d 82, 105 (Minn. 2011) (quotation omitted). But a prosecutor may not
argue facts not in evidence . State v. Lehman , 749 N.W.2d 76, 86 (Minn. App. 2008) ,

1 The supreme court has questioned whether this two -tiered approach is still good law,
while declining to decide the question. See State v. McDaniel, 777 N.W.2d 739, 749 (Minn.
2010); see also State v. Carridine, 812 N.W.2d 130, 146 (Minn. 2012).

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review denied (Minn. Aug. 5, 2008). A prosecutor may not intentionally misstate evidence
or advance arguments calculated t o inflame the jury’s passions. State v. Salitros , 499
N.W.2d 815, 817 (Minn. 1993).
Contrary to Oliver’s arguments, the prosecutor did not misstate the evidence of
Oliver’s statements to the police. The prosecutor did not expressly state that Oliver called
C.W. one of his “bitches.” Instead, the prosecutor alluded to Oliv er’s statement that
“bitches come to him” and his accusation (which he then retracted) that C.W. initiated the
sexual conduct. As in State v. Rose , the prosecutor made a “fair comment on [the]
evidence.” 353 N.W.2d 565 , 569 (Minn. App. 1984) , review deni ed (Minn. Sept. 12,
1984). The prosecutor used Oliver’s statement referring to his lack of want for “bitches,”
tied with Oliver’s accusation that C.W. initiated sex with him, to argue that C.W. was not
one of his “bitches” but one of his victims. This is a reasonable comment based on the
cumulative nature of his statements to the police. We conclude that the prosecutor did not
misstate the evidence.
Oliver further argues that the prosecutor’s statement about Oliver’s “bitches” was
calculated to prejudice the jury against him, evoking an emotional rather than dispassionate
review of the evidence. In State v. Porter , the supreme court found prosecutorial
misconduct because the state’s closing argument was “a blatant attempt to impinge on juror
independence” by referencing “the James Porter School of Sex Education” where no such
school existed in a criminal sexual conduct case involving a victim under the age of 16.
526 N.W.2d 359, 364 (Minn. 1995). The supreme court considered these statements “could
only have been intended to inflame the jury’s passions and prejudices . . . and were not

6
based on evidence produced at the trial.” Id. The prosecutor’s statements that C.W. was
not one of Oliver’s “bitches” do not constitute a bla tant attempt to impinge on jury
independence or distort the testimony.
The statement was also not intended or calculated to cause an emotional response.
In State v. Mayhorn, the supreme court found prosecutorial misconduct when the state
intentionally misstated the evidence. 720 N.W.2d 776, 787–88 (Minn. 2006). The witness
testified that her brother told her he had been shot at before, but the prosecutor added to
her testimony that “she knew of a shootout that [defendant] and her brother were in in
Kokomo.” Id. Because the prosecutor had earlier argued about the admissibility of
evidence regarding these facts, the prosecutor should have been sufficiently familiar with
the testimony to “avoid inadvertently misstating it.” Id. at 788. Again, there is nothing to
show, and Oliver does not argue, how the prosecutor’s statements about Oliver’s “bitches”
in any way were intentional misstatements of the evidence or that the prosecutor should
have avoided potentially misstating it. Earlier in his closing argument, the prosecutor
referred to the statements made by Oliver:
Did [C.W.] make sexual advances towards him? He was asked
that question by the officer. He said, “Yes.” . . . What did he
say? “All women do.” But what did he do then? Then he
denied that she did anything to him. Now, does that make any
sense to you? “Yeah, she touched him tonight—or she wanted
to touch him. Of course, she made sexual advances towards
him. All women do.” What else did he tell the officer when
he’s being transported? “He doesn’t need to take bitches,
bitches come to him.” . . . The question is, who do you believe?

The prosecutor clearly understood that these statements were made separately , and in no
way misled the jury by stating that Oliver called C.W. one of his “bitches.”

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We conclude that the prosecutor did not commit prosecutorial misconduct by
misstating the evidence, intentionally or unintentionally. We therefore need not address
the seriousness of the statements, as no misconduct occurred.
But even if misconduct occurred, the statements were harmless beyond a reasonable
doubt because the weight of evidence against Oliver far surpassed the prosecutor’ s
reference to his statement about bitches . In State v. Caulfield , the supreme court noted
several factors relevant to the harmless-error-beyond-a-reasonable-doubt standard for more
serious misconduct. 722 N.W.2d 304, 317 (Minn. 2006). We look to how the evidence
was presented, whether the state emphasized it, whether the evidence was h ighly
persuasive or circumstantial, and whether the defendant countered it. State v. Wren, 738
N.W.2d 378 , 394 (Minn. 2007) (applying the factors in Caulfield in the context of
prosecutorial misconduct).
The prosecutor’s statements were brief; he did no t emphasize or dwell on Oliver’s
comment about bitches. The prosecution referenced Oliver’s statements to the officer in
closing and concluded his argument by asking the jury to find that C.W. was not one of
Oliver’s bitches. It would not be any more persuasive had the prosecutor, in actuality, told
the jury that Oliver said that C.W. was one of his bitches. The jury reasonably could infer
that Oliver cons idered C.W. one of his bitches. Further, Oliver did not counter the
prosecution’s statements in his closing statement. We conclude that the jury’s verdict was
surely not attributable to the prosecution’s reference to Oliver’s statement in closing given
the weight of evidence against Oliver.

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Vouching for the Credibility of the Witness
Oliver next argues that the prosecutor endorsed C.W.’s credibility . At trial, C.W.
testified that three weeks prior to the incident with Oliver, her husband had strangled her,
and was subsequently convicted and incarcerated. Oliver challenges the prosecutor’s
following statements in closing:
What’s [C.W.’s] motive to make this up other than she’d been
the victim of a sexual assault? And what’s her motive to make
it up? Well, [defense counsel] asked lots of questions of her of
this incident that occurred three weeks before this. It’s totally
unrelated. It really has nothing to do with this case. But what
does she do there? She reported her husband for doing what?
Assaulting her and strangling her. You know there was this
other individual that the same thing happened to, the mother of
his child, and he was on top of when she came downstairs.
Something coincidentally she reported to the cops and
coincidentally the gentleman was convicted of. Does this seem
like someone that makes up stories to get people in tro uble?
And why she tells, at least a truthful story with respect to her
husband, why would you conclude that she’s any less truthful
with respect to her cousin?

Oliver contends that the prosecutor implied that because she told the truth about her
husband, which led to his conviction, the jury should find that C.W. told the truth about
Oliver and should convict him. Oliver did not object to these statements at trial.
We review unobjected -to prosecutorial misconduct under a modified plain -error
standard. State v. Ramey, 721 N.W.2d 294, 302 (Minn. 2006). The burden is on Oliver to
show that there was plain error . Id. An err or is plain when the prosecutor’ s conduct
“contravenes case law, a rule, or a standard of conduct.” Id. If Oliver is able to show that
the misconduct constituted plain error, then the burden shifts to the state to show that the
“misconduct did not prejudice [his] substantial rights.” Id. at 300. If Oliver’s substantial

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rights were affected, then we must decide whether “fairness and the integrity of the judicial
proceedings” require a reversal. State v. Matthews, 779 N.W.2d 543, 551 (Minn. 2010).
A prosecutor may not personally vouch for the credibility of a witness. State v.
Swanson, 707 N.W.2d 645, 656 (Minn. 2006). A prosecutor vouches for a witness “when
the government implies a guarantee of a witness’s truthfulness, refers to facts outside the
record, or expresses a personal opinion as to a witness’s credibility. ” State v. Patterson,
577 N.W.2d 494, 497 (Minn. 1998) (quotation omitted). But a prosecutor is permitted to
argue that particular witnesses are or are not credible. State v. Fields , 730 N.W.2d 777,
785 (Minn. 2007) . The supreme court distinguished permissibly addressing witness
credibility and impermissibly vouching for a witness in Swanson. 707 N.W.2d at 656. A
prosecutor may discuss “factors affecting the credibility of the witnesses” but may not
imply the state endorses a witness’s credibility. State v. Rucker , 752 N.W.2d 538, 552
(Minn. App. 2008) (quoting Swanson, 707 N.W.2d at 656), review denied (Minn. Sept. 23,
2008). Here, the prosecutor addressed C.W.’s husband’s conviction in response to defense
counsel’s cross-examination regarding the incident three weeks prior, indicating “it [was]
totally unrelated.” The prosecutor did not personally opine that C.W. was credible, and the
prosecutor did not imply that the state guaranteed her truthfulness. Instead, the statements
address a factor for the jury to use in determining the weight of her credibility in response
to defense counsel’s line of questioning . The prosecution’s statements do not amount to
plain error.
Even if the prosecutor did plainly err, the error did not affect Oliver’s substantial
rights. To determine if Oliver’s substantial rights were affected, we consider the strength

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of evidence, the pervasiveness of the erroneous conduct, and whether Oliver had an
opportunity to rebut any improper remarks. State v. Peltier, 874 N.W.2d 792, 806 (Minn.
2016). First, after reviewing the record, we conclude that the evidence against Oliver was
strong. C.W.’s testimony, corroborated by the text -message exchange with her friend
throughout the evening and the testimony of the officer who found Oliver in C.W.’s home
with his pants down and his penis partially exposed, exhibiting signs of intoxication and
being aggressive with the officers, shows that the jury’s decision was supported by ample
evidence. Second, the prosecution’s statement regarding C.W.’s ex -husband was not
pervasive, especially in light of the prosecution’s extensive analysis of the credibility
factors. Third, Oliver had the ability to refute the prosecution’s statements, but did not
address the state’s reference to the prior convictions of C.W.’s husba nd in closing
arguments.
Cumulative Error

Oliver argues that the cumulative effect of the alleged errors was prejudicial and
warrants a new trial. When “the number of errors and the seriousness of some of them”
render this court “unable to determine whether the jury based its verdict on the admissible
evidence and the reasonable inferences derived therefrom,” we may determine that a
defendant was deprived of a procedurally fair trial. Mayhorn, 720 N.W.2d at 792. To find
cumulative error, we must find multiple errors that, when combined, tip the scales to
operate as prejudice against the defendant. State v. Penkaty, 708 N.W.2d 185, 200 (Minn.

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2006). Because we conclude that there was no prosecutorial misconduct , we determine
that Oliver was not denied a fair trial.
Affirmed.