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This opinion will be unpublished and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
A18-0247

State of Minnesota,
Respondent,

vs.

Thomas Clifford Needham,
Appellant.

Filed January 28, 2019
Affirmed
Florey, Judge

Carlton County District Court
File No. 09-CR-17-134

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

Thomas Pertler, Carlton County A ttorney, Alexander W. Saumer, A ssistant County
Attorney, Carlton, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Julie Lof tus Nelson, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Reilly , Presiding Judge; Florey, Judge; and Kalitowski,
Judge.
*

* Retired judge of the Minnesota Court of Appeals, serving by ap pointment 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
FLOREY, Judge
Appellant challenges his convic tions of first-degree burglary and fifth-degree
assault, arguing that he is entitled to a new trial because the prosecutor committed
prejudicial misconduct. We affirm.
FACTS
On November 6, 2016, appellant Thomas Clifford Needham and his girlfriend, T.S.,
broke into H.D.’s house and assaulted her. They reportedly ent ered her residence by
kicking in H.D.’s side door, causing visible damage. Appellant and T.S. fled the scene in
a white four-door Pontiac after H.D. stated that she was going to call the police.
Officer Dixon and Sergeant Barney of the Fond du Lac (FDL) poli ce department
arrived at H.D.’s house within 5-7 minutes of receiving the cal l of the reported assault.
They testified that the reportin g party, H.D., named “Mo Needha m” as the perpetrator of
t h e a s s a u l t , a n d s h e r e p o r t e d t h a t h e f l e d t h e s c e n e w i t h a f e ma l e i n a w h i t e f o u r - d o o r
Pontiac. Prior to the call, both officers were familiar with appellant and understood that he
went by the name, “Mo Needham.” They also knew appellant to dr ive a white four-door
Pontiac Grand Prix.
Sergeant Barney was the first officer to arrive on scene. He observed visible damage
to H.D.’s side door as well as redness and “slight bruising” on H.D.’s cheek. He described
H.D. as “a little shaken up, a little distraught.” In a record ed interview with Sergeant
Barney, H.D. reported that she was in her basement when she heard her door being kicked

3
in.1 She reported that “she observed Mo at the top of the stairs,” and that he “charged down
the stairs at her . . . flinched at her and then ultimately sla pped her.” H.D. reported that
appellant grabbed her hair and “threw her on the ground.” She stated that she believed the
bruising on her cheek was from being slapped by appellant.
H.D. reported to Sergeant Barney that “she had a little bit of trouble with [appellant]
approximately a month ago but ha[d]n’t talked to him since, so she thought that was cleared
up.” She reported that appellant told her she “didn’t make it right” and asked whether
anyone else was in the house because “they could get knocked out also.”
When Officer Dixon arrived to the residence, Sergeant Barney was already speaking
with H.D., so he took the role of photographing the scene and collecting evidence. He took
multiple photographs of the damage to H.D.’s door as well as photographs of her injuries.
At trial, Officer Dixon described H.D.’s demeanor as “startled” and testified that she had
visible “redness on her left side of her cheek” as well as “slight swelling.” He also observed
redness and water in her eyes. After taking photographs, and s peaking with H.D., the
officers continued the investigation, but they were unable to locate appellant or his vehicle
that day.
Two days later, Sergeant Barney received a call that a vehicle “was being smashed
up” near a softball field just minutes away from H.D.’s home. The vehicle belonged to

1 Neither the audio recording nor a transcript of H.D.’s recorde d interview with Sergeant
Barney on the day of the inciden t was admitted into evidence. Thus, this summation
derives from Sergeant Barney’s trial testimony of H.D.’s statements to him. Appellant did
not object to Sergeant Barney’s testimony as hearsay, nor does appellant challenge the
officer’s testimony on appeal.

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appellant and matched H.D.’s description of the car that fled her residence. After officers
located the vehicle, it was reported stolen by appellant’s father. Appellant’s father reported
that it was appellant who informed him that the vehicle had been stolen.
Later that month, officers went to appellant’s residence in an attempt to apprehend
him. Appellant fled and could not be located, however, officer s arrested T.S., who was
present at that time. In January 2017, appellant was charged with first-degree burglary, in
violation of Minn. Stat. § 609.582, subd. 1(c) (2016), and fifth-degree assault, in violation
of Minn. Stat. § 609.224, subd. 1(2) (2016).
In May 2017, H.D. filed a notarized statement with the county a ttorney’s office
denying the allegations against appellant and T.S., and asking the court to drop all charges.
When Officer Foldesi of the FDL police department met with H.D. to follow up on the
November 6 incident, she declined to give a recorded statement. Officer Foldesi testified
that H.D. told him that “she just wanted to be done” with the case.
A two-day jury trial was held in October 2017. The state calle d officers Dixon,
Barney, and Foldesi, as well as H.D. to testify. 2 Prior to calling H.D. to the stand, the
prosecutor stated that he “anticipate[d]” H.D. was “not going to be a cooperative witness”
and that he intended to potentia lly impeach her. Appellant app eared pro se. He did not
testify or put on a defense.
At the start of H.D.’s direct examination, she testified consi stently with statements
she had given to FDL officers on the day of the offense. She d escribed where she lived,

2 T.S. was also a subpoenaed witness, but after her counsel advised her to invoke her Fifth
Amendment right, the state declined to call her to testify.

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the type of house she lived in, and how long she had lived ther e. She testified that she
remembered calling the police on the day of the incident and sp eaking with a responding
officer at her residence. When a sked about what took place bef ore she called the police,
H.D. began to offer inconsistent testimony. She testified that an individual by the name of
“Jeff Wise,” someone she was unfamiliar with at the time, came to her house with T.S.,
“one of [her] old friends.”
H.D. testified that she knew appellant, and identified him as going by the nickname,
“Mo,” but she denied being afraid of him. After H.D. affirmed that she provided a recorded
statement to Sergeant Barney on November 6, “just minutes after [she] called the police,”
the prosecutor read a portion of H.D.’s transcribed interview into the record:
I was sitting downstairs in my room when I heard my door get
kicked in. Um, I come to see who it was and Mo was standing
up there and he come charging downstairs and I tried to grab
my phone. . . . And he come at m e and he grabbed me by my
hair and his girlfriend [T.S.] come down. Him, um—he was
just yelling something. Never m aking it right or whatever.
Um, then he asked who was in the house and I told him I was
gonna call the cops or whatever and they left.

H.D. affirmed that she made the statement to Sergeant Barney. The prosecutor then asked
H.D. a series of questions about the incident, to which she den ied or stated she could not
recall:
S t a t e : D i d M r . N e e d — d i d — w e r e y o u i n t h e
bedroom—did you see Mr. Needham from your
downstairs up the stairs?

H.D. No.

6
State: Did Mr. Needham charge down the stairs at you,
grab you by your hair and throw you to the
ground?

H.D. (Pause.) I don’t recall.

State: Okay. You don’t recall whether or not that
occurred?

H.D. Correct.

Pursuant to Minnesota Rule of Evidence 612, the prosecutor asked H.D. if it would refresh
her recollection to review her tr anscribed statement to Sergean t Barney. H.D.
acknowledged that it would.
After reviewing the statement, H .D. testified to the following facts: appellant was
in her house and came downstairs on November 6; H.D. heard the sound of appellant
entering her home; her door was locked at the time appellant entered and was damaged by
appellant kicking it in; appellant drove a white Pontiac; and, on November 6, H.D. told
officers that she wanted to press charges. Appellant did not c ross-examine H.D., nor did
he object to any of the prosecutor’s questions or move to strike any of H.D.’s answers.
During the state’s closing argument, the prosecutor stated: “I believe the evidence
shows that [appellant] charged downstairs and he assaulted [H.D.]. He threw her down on
the ground and he slapped her and he flinched at her.” Focusin g on H.D.’s inconsistent
testimony, the prosecutor opined: “I think you’ll find that eve ntually [H.D.] came
clean. . . . And when she finally came clean, that, ladies and gentlemen, I argue to you,
satisfies the evidence.” Appellant did not object to the state’s closing argument.

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The jury found appellant guilty of both counts, and appellant w as sentenced to an
88-month prison term. This appeal followed.
D E C I S I O N
Appellant argues that he is entitled to a new trial because the prosecutor committed
prejudicial misconduct. He contends that the prosecutor committed prejudicial misconduct
during H.D.’s direct examination by (1) introducing H.D.’s prio r inconsistent statements
under the guise of impeachment, thereby violating the so-called Dexter rule, and
(2) “repeating the state’s theory of the case each time he pose d his questions to [H.D.].”
Appellant argues that the prosecutor also committed prejudicial misconduct during his
closing argument by (1) improperly endorsing the credibility of H.D.’s prior statement to
Sergeant Barney and (2) “using portions of her prior statement as substantive evidence of
[appellant’s] guilt.”
“A prosecutor engages in prosecu torial misconduct when the pros ecutor violates
clear or established standards of conduct, e.g., rules, laws, o rders 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) (quotations omitted). The standard of review depends on whether the defendant
objected to the alleged misconduct at trial. State v. McDaniel, 777 N.W.2d 739, 749 (Minn.
2010). When a defendant fails t o object during trial, allegati ons of prosecutorial
misconduct are reviewed under a modified plain-error standard. State v. Peltier , 874
N.W.2d 792, 803 (Minn. 2016).
Under this standard, the defendant bears the initial burden of establishing error that
is plain. State v. Ramey, 721 N.W.2d 294, 302 (Minn. 2006). A plain error is one that is

8
“clear or obvious.” Id. (quotation omitted). Once the defendant shows that the misconduct
constitutes an error that is plain, the burden then shifts to t he state to prove that any
misconduct did not prejudice the defendant’s substantial rights. Id. at 300, 302. To meet
this burden, the state must show that there is no reasonable li kelihood that the absence of
the misconduct would have had a significant impact on the jury’ s verdict. Id. at 302. In
determining whether the misconduc t affected appellant’s substan tial rights, we consider
various factors, including: “(1) the strength of the evidence against [the defendant]; (2) the
pervasiveness of the erroneous conduct; and (3) whether [the defendant] had an opportunity
to rebut any improper remarks.” Peltier, 874 N.W.2d at 805-06; see also State v. Parker,
901 N.W.2d 917, 926 (Minn. 2017).
We conclude that the alleged pr osecutorial misconduct did not a ffect appellant’s
substantial rights. As a result, we decline to determine wheth er any prosecutorial
misconduct actually occurred. That being said, the prosecutor’ s form of questioning and
his remarks in closing argument warrant some discussion. We fi rst address appellant’s
concern that the prosecutor introduced H.D.’s prior inconsistent statements under the guise
of impeachment.
Minnesota Rule of Evidence 607 provides for impeachment of witnesses, including
a party’s own witness. In State v. Dexter , the Minnesota Supreme Court construed rule
607, holding that the prosecutor’s attempt to impeach its witness with a prior inconsistent
statement was an impermissible pursuit “to present, in the guise of impeachment, evidence
which [was] not otherwise admissible.” 269 N.W.2d 721, 721 (Mi nn. 1978). Two years
later, citing to Dexter, the supreme court explained that if a prosecutor “plan[s] fro m the

9
inception to call the witness fo r the purpose of introducing he r prior statements, the
prosecutor [is] guilty of misusing the rule to expose the jury to hearsay under the theory of
impeachment.” State v. Anderson , 298 N.W.2d 63, 65 (Minn. 1980). Taking into
consideration the fact that “the prosecutor was not sure the witness would deny defendant’s
guilt when she took the stand,” the Anderson court held that the defendant was not
prejudiced by the state’s impeachment of its witness. Id.; see also State v. Thames, 599
N.W.2d 122, 125-26 (Minn. 1999). Because there is no evidence that the prosecutor was
certain H.D. was going to testify at trial inconsistently, we c onclude there was no Dexter
violation.
We next address the prosecutor’s manner in which he refreshed H .D.’s memory.
M i n n e s o t a R u l e o f E v i d e n c e 6 1 2 g o v e r n s t h e u s e o f a w r i t i n g t o refresh a witness’s
recollection. A writing should not be used to refresh a witness’s memory “unless it is first
ascertained whether the witness can recall the events in questi on without resort to a
memorandum.” City of Minneapolis v. Price, 159 N.W.2d 776, 781 (Minn. 1968). If the
writing does not refresh the witness’s recollection, it may be read into evidence, under the
recorded recollection exception to hearsay, provided certain re quirements are met. See
State v. Stone, 784 N.W.2d 367, 371 (Minn. 2010) (“A memorandum or record can only
qualify as a recorded recollection if, upon a witness’s use of a writing to refresh memory
for the purpose of testifying . . . a witness has an insufficie nt recollection to testify fully
and accurately.” (quotation omitted)).
In order to be admitted as a recorded recollection under Minnesota Rule of Evidence
803(5), “the court must be satisfied, first, that the memorandu m reflects the firsthand

10
knowledge of its author; second, that the recording was made wh ile the facts were fairly
fresh in his mind; third, that the record is a true and accurate account of what he perceived.”
Walker v. Larson , 169 N.W.2d 737, 741-42 (Minn. 1969). In the present case, th e
prosecutor improperly read into the record a part of H.D.’s pri or statement before either
ascertaining whether H.D. needed to review the statement in order to testify to its content
in her own words, or laying the proper foundation under rule 803(5).3
Furthermore, a number of the pro secutor’s questions, as well as remarks in his
closing argument, assumed facts not in evidence. For example, the prosecutor asked H.D.:
“Did Mr. Needham charge down the stairs at you, grab you by your hair and throw you to
the ground?” H.D. responded: “I don’t recall.” The prosecutor a s k e d H . D . w h e t h e r
reviewing her prior statement would refresh her recollection, a nd after H.D. stated that it
would, and was given the opportunity, the following exchange took place:
State: Okay. Now, the question I had asked you prior
to [your review of your statement] that I believe
your response was that you didn’t remember was
whether or not Mr. Needham grabbed you by the
hair and threw you to the ground.

H.D. Yeah. Yes.

It is unclear whether H.D.’s affirmative answer is in response to the prosecutor’s inquiry
of whether she remembers his previous question, or whether she is affirming that appellant

3 We note, however, that shortly a fter improperly reading a part of H.D.’s statement into
the record, the prosecutor did, properly, inquire into whether it would refresh H.D.’s
recollection to review it. H.D. acknowledged that it would and, thereafter, affirmed many
of the accusations contained therein.

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did, indeed, grab her by the hair and/or throw her to the groun d. Despite this ambiguity,
the prosecutor’s subsequent questions assumed H.D. had affirmed the accusations:
State: Let me ask you another specific—a specific
question. After Mr. Needham threw you—
grabbed you by the hair and threw you to the
ground, did he strike you?

H.D. I don’t remember.

. . . .

State: Okay. But after Mr. Needham threw you to the
ground, you say it’s hard to remember if he
slapped you?

H.D. It’s hard to remember the whole incident. Like,
it was a long time ago. Um, and I have, like,
problems with, like, memory. My memory.

State: Did you tell Sergeant Barney that Mr. Needham,
after he threw you to the ground, flinched at you
and then slapped you?

H.D. That’s what was said—that’s what he said.

State: Do you recall that happening?

H.D. I don’t—like I said, I don’t remember.

. . . .

State: Did Mr. Needham say anything to you after he
threw you to the ground?

H.D. (Pause.) I don’t remember.

. . . . .

State: Did you have any thou ght in your mind as to why
Mr. Needham had kicked in your door, charged

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down your stairs, thrown you to the ground and
hit you?

H.D. No.

. . . .

State: You told ‘em you were gonna call the police.
After Mr. Needham threw you to the ground,
slapped you, did they leave?

H.D. Yeah, they left.

In his closing argument, the prose cutor opined: “I believe the evidence shows that
[appellant] charged downstairs and he assaulted [H.D.]. He threw her down on the ground
and he slapped her and he flinched at her.” He also argued:
I think you’ll find that eventually [H.D.] came clean. She gave
good answers. She—no, Mr. Needham wasn’t there. No, it
was someone named Jeff Wise. Eventually, yes, Mr. Needham
was there. Yes, he charged down the stairs. Yes, the redness
on my face was from his assault. Yes, he kicked in the door.
Yes, he did the damage.

While we affirm appellant’s convictions, our decision should be construed as neither
an endorsement of the prosecutor’s manner in which he examined H.D., nor an approval
of his remarks in closing argum ent. However, because we conclu de that appellant’s
substantial rights were not prejudiced, we need not determine w hether the prosecutor’s
conduct reached the level of plain error.
First, the evidence against appe llant was strong. Both of the responding officers
testified at trial. They descri bed the visible damage to H.D.’ s door, as well as H.D.’s
demeanor and physical appearance within minutes of her call to 9-1-1. The officers’

13
unobjected-to testimony was admitted as substantive evidence of appellant’s guilt, as were
photographs of H.D.’s door and the visible injuries to her face.
Further, the jury heard testimony about appellant’s car—details of which implicated
appellant to the charged burglary and assault. The jury learned that appellant’s car matched
H.D.’s description of the vehicle that fled her residence, that h i s c a r w a s l a t e r f o u n d
severely damaged just a few minutes from H.D.’s home, and that appellant’s father had
reported the vehicle stolen because that is what appellant told him. The jury also heard
from Officer Foldesi who testified that H.D. told him “she just wanted to be done” with the
case.
And finally, the jury heard from H.D., who affirmed she made the statements in the
transcribed interview with Sergeant Barney, and testified that it was, in fact, appellant who
entered her home, without consent, and came downstairs on November 6; that her door had
been locked and was damaged by appellant kicking it in; that appellant was driving a white
Pontiac at the time; and that she called the police, spoke with officers, and wished to press
charges on the day of the offense.
Second, the pervasiveness of the alleged prosecutorial misconduct did not prejudice
appellant. In addition to H.D.’s testimony, the jury heard from officers Dixon and Barney,
both of whom corroborated H.D.’s prior statements. The jury was also instructed on what
constituted evidence, as well as on its role and responsibility as factfinder. See State v.
Washington, 521 N.W.2d 35, 40 (Minn. 1994) (“The trial court’s instructio ns to the jury
are also relevant in determining whether the jury was unduly in fluenced by the improper
comments.”). The court instructed the jury that neither H.D.’s prior statements, nor the

14
statements of the prosecutor, constituted evidence. The court, and the prosecutor himself,
instructed the jurors that they were the “sole judges of whether a witness is to be believed
and of the weight to be given a witness’s testimony.” These instructions were sufficient to
protect against any prejudice that may have resulted from the prosecutor’s conduct. See In
re Welfare of D.D.R. , 713 N.W.2d 891, 900 (Minn. App. 2006) (holding that the jury
instructions “were sufficient to negate . . . any prejudice that may have occurred as a result
of misconduct”).
Third, appellant was not denied the opportunity to rebut any al legedly improper
statements. Although appellant appeared pro se, the record sho ws that he was advised
many times throughout the course of the proceedings to reconsid er representing himself.
The record also shows that appe llant was appointed advisory cou nsel and that he
discharged his advisory counsel before trial. Because the alleged prosecutorial misconduct
did not affect appellant’s substantial rights, appellant is not entitled to a new trial.
Affirmed.