State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-0169

State of Minnesota,
Respondent,

vs.

Terry Lovell Arrington,
Appellant.

Filed January 28, 2019
Affirmed
Slieter, Judge

Ramsey County District Court
File No. 62-CR-17-2612

Keith M. Ellison, Attorney General, St. Paul, Minnesota; and

John Choi, Ramsey County Attorney, Thomas R. Ragatz, Assistant County Attorney, St.
Paul, Minnesota (for respondent)

Frederick J. Goetz, Goetz & Eckland P.A., Minneapolis, Minnesota (for appellant)

Considered and decided by Smith, Tracy M. , Presiding Judge; Ross, Judge; and
Slieter, Judge.
U N P U B L I S H E D O P I N I O N
SLIETER, Judge
Appellant challenges his convictions of two counts of first -degree criminal sexual
conduct, arguing that (1) the prosecutor committed reversible misconduct, (2) the district
court abused its discretion by admitting evidence of possible witness tampering and by

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denying his mistrial motion, and (3) the cumulative effect of trial errors deprived him of a
fair trial. We affirm.
FACTS
St. Paul police received a report on February 20, 2017, from the Midwest Children’s
Resource Center (MCRC), that 11-year-old T.A. had been sexually assaulted by her father,
appellant Terry Lovell Arrington. T.A. had told her mother, J.H., of the abuse in response
to her mother’s questions about the sleeping arrangements at a family reunion held at a
hotel on February 19. I n response to a question about whether she had been touched
inappropriately by any of her young male relatives, T.A. stated that none of the m had
touched her, but that Arrington had touched her in the past and told her to keep it a secret.
J.H. drove T.A. directly to MCRC, where T.A. participated in a recorded interview
with a sexual -assault nurse examiner , which was later admitted at trial. T.A. was also
examined by an MCRC doctor; the examination revealed no physical injuries. Arrington
was ultimately charged with two counts of first -degree criminal sexual conduct under
Minn. Stat. § 609.342, subd. 1(h) (iii) (2016), for conduct that occurred between July 5,
2013 and October 31, 2016.
During Arrington’s jury trial, T.A. testified that Arrington touched her “ten times or
less” and described specific sex acts that first occurred when she was in kindergarten and
continued at various times until she reached the sixth grade. She stated that on different
occasions Arrington rubbed her privates with his hands, plac ed his penis “by my butt” or
“open[ed] up my legs a little bit and lay it down on my legs and it felt like I peed on
myself,” “push[ed]” his penis in “either my butt in like the middle or my butt hole ,” and

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said she “could feel something long with lines in the middle and wetness.” She also
described Arrington placing his penis in her mouth on several occasions and ej aculating.
She testified that Arrington told her that if she told anyone what had occurred, he could go
to jail and she could be placed in a foster home. T.A.’s descriptions of Arrington’s conduct
were consistent with her statements to her mother, grandmother, and MCRC medical staff.
J.H.’s mother, M .P., testified that T.A. had described the sexual assaults to her.
During M.P.’s testimony, she stated that after news of the assault allegations became
known, she did not want to be at J.H.’s residence because she was “scared” that Arrington
or his family or friends “would come and do something to us” because Arrington was “from
the streets.” On the morning after M.P. testified, the district court judge disclosed that a
juror had contacted her and “indi cated that the jurors were concerned that either the
defendant or the defense would have their addresses.” Defense counsel moved for a
mistrial on the ground of jury bias. The district court denied the motion and instructed the
jury that their addresses were not public, their names would be called only when they
rendered a verdict, the likelihood that anyone was interested in their names was “low,” and
they should base their decision on evidence offered at trial.
G.C., J.H.’s “cousin” and a distant relative by marriage, testified that she lived with
J.H.’s family from 2015 to 2017 and was also recently involved in a romantic relationship
with Arrington’s brother, J.A., who lived with the family occasionally. She testified that
J.A. contacted her by phone the night before she was to testify, asked if she was going to
testify for the state , and kept yelling that question until she hung up. The district court

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cautioned the jury that evidence of J .A.’s conduct was admissible only to establish his
credibility if he later decided to testify.1
Arrington testified in his own defense and suggested that J.H. influenced T.A. to
falsely accuse him of sexual assault after they had a relationship -ending argument. He
stated that on the evening of February 19, he and J. H. had a “real, real heated” argument
and “all hell broke loose.” She was extremely critical of him, and he “got real tired of it
and . . . told her how [he] really felt,” which included that he “hate[d] her” and believed
that she did not have “long to liv e.”2 Arrington testified that he was “done . . . with her”
“at that moment.” Arrington stated that, contrary to their usual practice of riding together
on errands, J.H. refused to let him ride in her car to pick up the ir children from the hotel
the next morning , almost hit him with her car, and it was obvious to him that their
relationship was truly over. Two or three hours later, he learned of T.A.’s sexual-assault
allegations.
The jury found Arrington guilty of both counts, and the district court imposed a n
executed 280-month sentence on one count. Arrington appeals, arguing that some of the
prosecutor’s statements constituted misconduct and denied him a fair trial. He also argues
that the district court abused its discretion by admitting evidence that J .A. attempted to
tamper with G.C. before she testified at trial, that the district court abused its discretion by

1 J.A. did later testify for the defense at trial. J.A. described J.H. as “untruthful” and
“violent,” and the relationship between J.H. and Arrington as “not good” and “scary,”
because they argued “every day.” J.A. also testified to hearing J.H. and Arrington arguing
on the morning of February 20 and said that both individuals “appeared still mad” when
J.H. left the house.
2 J.H. is chronically ill.

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denying his mistrial motion, and that cumulative trial errors were not harmless and also
denied him a fair trial.
D E C I S I O N
I. Prosecutorial Misconduct
Prosecutorial misconduct occurs when “the prosecutor’s acts have the effect of
materially undermining the fairness of a trial.” State v. Smith, 876 N.W.2d 310, 334 (Minn.
2016) (quotation omitted). When a p arty does not object to alleged prosecutorial
misconduct, the reviewing court applies a modified plain -error test. State v. Parker, 901
N.W.2d 917, 926 (Minn. 2017); State v. Longo, 909 N.W.2d 599, 609 (Minn. App. 2018).
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. A plain error a ffects a defendant’s
substantial rights if it was prejudicial and affected the outcome
of the case. An error is prejudicial if there is a reasonable
likelihood that the error had a significant effect on the jury’s
verdict. To evaluate the effect on subst antial rights, we
consider various factors, including the pervasiveness of
improper suggestions and the strength of evidence against the
defendant. If the State fails to demonstrate that the alleged
error did not affect the defendant’s substantial rights, we
consider whether the error should be addressed to ensure
fairness and the integrity of judicial proceedings. On the other
hand, if the State meets its burden, we need not decide whether
the prosecutor committed an error that was plain.

Parker, 901 N.W.2d at 926 (quotations omitted). “To warrant reversal for a new trial, the
prosecutor’s misconduct—placed into the context of the entire trial —must be so serious
and prejudicial that it impairs a person’s constitutional right to a fair trial.” State v. Banks,
875 N.W.2d 338, 348 (Minn. App. 2016), review denied (Minn. Sept. 28, 2016).

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Arrington submits that “[p]rosecutorial misconduct occurred when the prosecutor
inflamed the passions and prejudices of the jurors, personally endorsed the credibility of
witnesses, argued the consequences of the jury’s verdict, disparaged the defendant, and
brought inadmissible matters to the attention of the jury.” These allegations encompass
the following conduct by the prosecutor: (1) eliciting testimony from G .C. about how
J.H.’s life changed for the better after T.A. disclosed the abuse; (2) suggesting to G.C. that
she could not have obs erved any sexual abuse of T.A. because it occurred at night;
(3) eliciting testimony from the nurse examiner that continuing contact between T.A. and
an offender would not be safe for her; (4) disparaging Arrington during cross-examination
by suggesting th at she “missed the tears” that he purportedly shed upon viewing T.A.’s
recorded interview at trial; (5) declaring in her closing argument her opinion on the
truthfulness of the state’s witnesses; and (6) stating in closing argument that T.A. “is safe,
safe from her biological father, who will never, ever, ever be able to touch her again.” We
pay “special attention” to statements that may inflame or prejudice the jury when credibility
is a central trial issue, as it is in this case. State v. Porter , 526 N. W.2d 359, 363 (Minn.
1995); see State v. Jahnke, 3 53 N.W.2d 606, 6 11 (Minn. App. 198 4) (“Prosecutors in
sexual abuse cases must abide by the highest behavior.”).
Although we are mindful of the serious allegations of misconduct in this case, we
decline to consider or analyze them individually because, under the third prong of the plain-
error test , we conclude that any misconduct by the prosecutor could not have affected
Arrington’s substantial rights. All three prongs of the plain -error test must be satisfi ed to
merit reversal of a conviction, and if an appellate court “find[s] that any one of the

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requirements is not satisfied, [it] need not address any of the others.” Montanaro v. State,
802 N.W.2d 726, 732 (Minn. 2011) ; see Parker, 901 N.W.2d at 926. Whether an alleged
trial error affects a defendant’s substantial rights merits consideration of “(1) the strength
of the state’s evidence; (2) the pervasiveness of the erroneous conduct; and (3) whether the
defendant had an opportunity to rebut any improper remarks.” Longo, 909 N.W.2d at 609
(quotations omitted).
As Arrington concede s to this court, the evidence against him was strong. T.A.
provided consistent, unwavering, and precise trial testimony and statements to her mother,
grandmother, and medica l staff about Arrington’s sexual assaults. The alleged instances
of prosecutorial misconduct were also not pervasive and many were ameliorated by the
district court’s curative instructions. See State v. Budreau , 641 N.W.2d 919, 926 (Minn.
2002) (stating that the jury is presumed to follow the district court’s curative instructions).
For example, the prosecutor’s closing arguments and rebuttal included 67 pages of
transcription, and any improper statements constituted only a very small portion of her
argument. Moreover, Arrington’s attorney did rebut some of the prosecutor’s statements.
On this record, Arrington’s substantial rights were not affected by any improper
statements made by the prosecutor. See State v. Swanson, 707 N.W.2d 645, 656 (Minn.
2008) (rejecting a claim of prosecutorial misconduct when the evidence of defendant’s
guilt was strong and the prosecutor’s misconduct isolated); State v. Ture, 353 N.W.2d 503,
517 (Minn. 1984) (noting that even when a prosecutor improperly commented on a
defendant’s guilt or the truthfulness of a witness’s testimony, the appellate court will affirm

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the conviction if the district court cautioned the jury, evidence of guilt was strong, and “the
prosecutor’s argument was otherwise proper”).
II. Evidentiary Rulings
Arrington argues that the district court abused its discretion by allowing G .C. to
testify about the phone conversation she had with J.A. just before she testified for the state.
G.C. testified that when J.A. discovered that she would testify, J.A. repeatedly yelled at her
“was [she] a witness” until she hung up. The district court instructed the jury to consider
this evidence only if J .A. testified, and only as bearing on his propensity for truthfulness.
When asked by defense counsel on cr oss-examination whether she had “any reason to
believe” that J.A.’s emotional response to the case originated with Arrington, she
answered, “No.” She also described J.A. as “conflicted” about the case.
A district court may exclude relevant evidence “if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the
jury.” Minn. R. Evid. 403. “Evidentiary . . . rulings generally rest within the district court’s
discretion and will not be rever sed absent a clear abuse of discretion.” Holt v. State, 772
N.W.2d 470, 481 (Minn. 2009) (quotation omitted). J.A.’s conversation with G.C. could
demonstrate his bias, and such evidence is admissible under Minn. R. Evid. 616. We
observe no abuse of discretion in the district court’s admission of the testimony ,
particularly given the district court’s limiting instruction.
III. Mistrial Motion
An appellate court “review[s] a district court’s decision to deny a mistrial for an
abuse of discretion” and should grant such a motion only if “there is a reasonable

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probability that the outcome of the trial would be different.” State v. Chavez-Nelson, 882
N.W.2d 579, 590 (Minn. 2016) (quotation omitted) . “[T]he district court is in the best
position to evaluate the prejudicial impact, if any, of an event occurring during the trial.”
State v. Bahtuoh, 840 N.W.2d 804, 819 (Minn. 2013).
Before the second day of trial, following a juror’s disclosure “that the jurors were
concerned that either the defendant or t he defense would have their addresses ,” defense
counsel moved for a mistrial, arguing that the jury was biased against Arrington. The
district court denied the motion, stating, “There is no indication, based on the concern that
the jurors have about their addresses being public, that it is based on some sort of fear of
Mr. Arrington.” The district court then informed the jury that their addresses were not
public, their names would not be called until they rendered a verdict, and the parties or
others were unlikely to recall their names after trial. The district court also reminded the
jury that they were to base their decision only on the evidence received at trial.
We observe no abuse of discretion in the district court’s denial of the mistrial
motion. As noted, the evidence against Arrington was strong , and there is no reasonable
likelihood that the jury’s verdict was due to their fear of reprisal from Arrington or his
family. See id. at 819-20 (evaluating the strength of the state’s case in denying a mistrial
motion); State v. Mitchell , 881 N.W.2d 558, 562 (Minn. App. 2016) (deferring to the
district court’s “evaluation of prejudicial impact” in denying mistrial motion), review

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denied (Minn. Aug. 23, 2016). Again, the jury is presumed to have followe d the district
court’s curative instructions. See Budreau, 641 N.W.2d at 926.3
IV. Cumulative Effect of Trial Errors
Arrington argues that all of the trial errors, including “[m]ultiple instances of
prosecutorial misconduct together with multiple evidentiary errors,” deprived him of a fair
trial. See State v. Davis, 820 N.W.2d 525, 538-39 (Minn. 2012). “Cumulative error exists
when the cumulative effect of the errors and indiscretions, none of which alone might have
been enough to tip the scales, opera te to the defendant’s prejudice by producing a biased
jury.” Colbert v. State, 870 N.W.2d 616, 627 n.10 (Minn. 2015) (quotation omitted). The
supreme court recently noted that it has applied this rule rarely in cases involving multiple
trial errors and i n factually “close” cases when even a small error may prejudice the
defendant. Davis, 820 N.W.2d at 538-39. As we have noted, this is not a factually “close”
case. To the extent there were any defects in Arrington’s trial, he has not shown that he
was denied a fair trial because of their cumulative effect.
Affirmed.

3 Arrington also argues that the district court failed to apply the correct prejudice -to-the-
defendant standard for evaluating the mistrial motion and instead applied the “manifest
necessity” standard for mistrials declared without the defendant’s consent. See State v.
Long, 562 N.W.2d 292, 296 (Minn. 1997) (stating that when a mistrial is ordered without
the defendant’s consent, the mistrial must be necessitated by “the ends of public justice,”
or “manifest necessity” (quotations omitted)). Because the district court clearly evaluated
the prejudicial impact to Arrington in reaching its decision, this character ization of the
district court’s actions is inaccurate.