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This opinion will be unpublished and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
A18-0306

State of Minnesota,
Respondent,

vs.

Blayon Lawrence Yuoh,
Appellant.

Filed February 19, 2019
Affirmed in part, reversed in part, and remanded
Jesson, Judge

Hennepin County District Court
File No. 27-CR-17-4475

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

Michael O. Freeman, Hennepin Coun ty Attorney, Linda K. Jenny, A ssistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Jodi Lynn Proulx, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Bratvold, Presiding Judge; Halbrooks , Judge; and
Jesson, Judge.
U N P U B L I S H E D O P I N I O N
JESSON, Judge
Appellant Blayon Lawrence Yuoh challenges his convictions of f irst, third, and
fifth-degree criminal sexual conduct stemming from his alleged sexual assault of a

2
homeless, 17-year-old girl. Because sufficient evidence suppor ts Yuoh’s conviction of
first-degree criminal sexual cond uct and because any prosecutor ial misconduct does not
warrant a new trial, we affirm Yuoh’s conviction of first-degre e criminal sexual conduct.
But we reverse Yuoh’s convictions for third and fifth-degree cr iminal sexual conduct
because they are lesser-included offenses and remand for correc tion of the warrant of
commitment.
FACTS
On August 16, 2016, 17-year-old A.K. went to West Broadway in Minneapolis “to
get high and drunk.” Although she was homeless at the time and had no money, she was
able to get drugs and alcohol from friends in the area. A.K. d rank alcohol, smoked
marijuana, and used PCP.1
On that day, A.K. met 26-year-o ld appellant Blayon Lawrence Yuoh at a park in the
area. A.K. testified that Yuoh was also doing drugs. At some point, it began to rain, and
A.K. testified that Yuoh asked her if she wanted to go with him to his sister’s house. A.K.
agreed, and the two took a bus to Robbinsdale, ending up at an apartment where Yuoh’s
friend lived. Two older men were at the apartment, and A.K. co ntinued to drink alcohol
and smoke marijuana. Eventually, Yuoh left the apartment, but A.K. spent the night there.
When she woke up the next day, A.K. continued drinking alcohol. At some point
Yuoh returned, and A.K. left the apartment with him. A.K. thought they were going to the
store, but Yuoh led her to a different part of the apartment bu ilding, where the two began

1 PCP is a common name for the illegal drug phencyclidine, which can cause hallucinations.

3
kissing. Eventually, Yuoh took A. K. to a stairwell and asked h er to perform oral sex on
him. A.K. told him no. Yuoh asked her if she wanted to have s ex, but she told him that
she did not want to and that she was on her period and she thou ght that was “disgusting.”
Yuoh then turned A.K. to face the wall, pulled her pants down, and anally penetrated her.
A.K. left the building and took a bus to see her former probat ion officer. Because
he was not there, she went to a nearby store where she began to eat snack food without
paying for it. The store owner called the police. When they arrived, A.K. told officers that
she had just been sexually assaulted by a man with a tattoo tha t said “Blaze” on his right
arm. Officers took A.K. to the hospital where a nurse performe d a sexual-assault exam.
The nurse also swabbed A.K.’s neck after she told the nurse that Yuoh kissed her there.
A few days later, based on A.K .’s statement to police, officers put together a photo
identification lineup that included a picture of Yuoh. A.K. identified Yuoh as the man who
assaulted her. The state filed a complaint charging Yuoh with third-degree criminal sexual
conduct, and amended the complaint before trial to include a charge of first-degree criminal
sexual conduct.
At trial, A.K. testified about the assault, including that she refused to perform oral
sex on Yuoh or have sexual intercourse with him. A.K. then des cribed how Yuoh turned
her around to face the wall, pulled down her pants, and anally penetrated her for 10 to 15
seconds. According to A.K., the assault hurt her, and she told Yuoh that she did not want
to do that. A.K. also testified about her drug and alcohol use that day and acknowledged
that PCP sometimes affects her memory and causes her to “space out.” But A.K. explained
that she clearly remembers Yuoh sexually assaulting her because it impacted her entire life.

4
The state also presented testimony from the lead investigator, who testified that
Yuoh contacted police after the alleged assault. Yuoh asked if A.K.’s allegations against
him involved sex before the inves tigator told him that A.K. all eged that he sexually
assaulted her. During a subsequent voluntary interview at the police station, Yuoh initially
denied knowing A.K. but eventually told the investigator that he had hung out with her for
a couple of hours.2
The police officers who picked up A.K. at the convenience store and met her at the
hospital also testified, describi ng what A.K. disclosed about t h e a s s a u l t , w h i c h w a s
consistent with her testimony. And the officers testified about their investigation, including
that no physical evidence was fo und in the apartment stairwell, that surveillance video
footage at the apartment did not show Yuoh and A.K. outside together, and that police did
not attempt to find or photograph the apartment where A.K. spent the night. Nor did they
attempt to find or interview any witnesses.
The sexual assault nurse who examined A.K. testified about what A.K. disclosed to
her, which was consistent with A.K.’s testimony. The nurse stated that although A.K. was
quiet and kind of “shut down,” she was alert and able to answer her questions. During the
exam, the nurse noted a half-centimeter tear in A.K.’s perineum (the area between the anus
and vagina) and two 3.5 centimeter tears on A.K.’s anal verge ( the tissue where external
tissue transitions to internal tissue). The nurse also testified that she noticed two areas of
blood inside A.K.’s rectum. The nurse testified that A.K.’s injuries were consistent with a

2 At the end of this interview, police executed a search warrant and collected a DNA sample
from Yuoh.

5
penis being forced into the an us. Although the nurse acknowled ged that these injuries
could be caused by constipation or a hard bowel movement, she testified that A.K. did not
report either of these conditions.
Two Bureau of Criminal Apprehension (BCA) scientists testified about the testing
results from A.K.’s sexual-assault exam. The BCA found semen on the swab from A.K.’s
perianal region, but there was not a sufficient amount of male DNA to generate a profile.
The swab from A.K.’s neck contained DNA from a mixture of three or more people. The
BCA scientist testified that alth ough 99.9997 percent of the ge neral population could be
excluded as a contributor, Yuoh could not be excluded.
Yuoh testified on his own behalf. He stated that he was having a barbecue with
some friends when A.K. came and sat down next to him “out of th e blue.” According to
Yuoh, he was not smoking or drinking and was just talking to A.K. When it started to rain,
Yuoh offered to take A.K. to a friend’s apartment, and at some point the two were
consensually kissing. Yuoh left A.K. at his friend’s apartment and returned the next day.
Yuoh testified that he never had any form of sexual intercourse with A.K., and that he did
not do anything sexual other than kissing her. When asked how A.K. may have gotten the
injuries the sexual assault nurse t e s t i f i e d a b o u t , Y u o h t e s t i f ied that A.K. was in the
bathroom for 20 to 25 minutes on the day of the alleged assault, was constipated, and that
she told him “whew, that was a rough one” when she exited the bathroom.3 Yuoh testified

3 When questioned by defense couns el about whether she was in th e bathroom “for an
extended period of time” on the day of the alleged assault, A.K. testified that she “was on
[her] period.”

6
that he originally denied knowing A.K. because he was “playing [the police] for info” and
admitted that he lied to police, but stated that A.K. lied to the jury during her testimony.
During closing arguments, the state commented on Yuoh’s alleged “big poop
defense,” and the defense objected, arguing that this constituted improper burden shifting.
The district court sustained the objection, but denied Yuoh’s s ubsequent motion for a
mistrial after clarification from the state regarding the burde n of proof and specific
instructions to the jury. Before the case was submitted to the jur y, Yuoh requested an
instruction on fifth-degree criminal sexual conduct, which the district court granted.
The jury found Yuoh guilty of first, third, and fifth-degree criminal sexual conduct,
and the district court adjudicated Yuoh guilty on all three cou nts. On the count of
first-degree criminal sexual conduct, the district court senten ced Yuoh to 144 months in
prison. Yuoh appeals.
D E C I S I O N
Yuoh challenges his convictions on three grounds. First, Yuoh contends that his
conviction is not supported by sufficient evidence. Second, Yuoh argues that prosecutorial
misconduct during closing argument warrants a new trial. Finally, Yuoh asserts that it was
error for the district court to adjudicate him guilty of third and fifth-degree criminal sexual
conduct because those offenses are lesser-included offenses of the first-degree
criminal-sexual-conduct offense. We review each argument in turn.

7
I. Sufficient evidence supporte d Yuoh’s first-degree criminal-s exual-conduct
conviction.

In sufficiency-of-the-evidence challenges, if an element of the offense is supported
by direct evidence, appellate courts examine the record to dete rmine if the evidence is
sufficient to permit jurors to reach their verdict when “viewed in the light most favorable
to the conviction.” State v. Horst, 880 N.W.2d 24, 40 (Minn. 2016) (citing State v. Webb,
440 N.W.2d 426, 430 (Minn. 1989)). In doing so, a reviewing court assumes that the jury
believed the state’s witnesses and did not believe contrary evi dence. State v. Olhausen ,
681 N.W.2d 21, 25 (Minn. 2004) (citations omitted). If the jury, acting with regard for the
presumption of innocence and the requirement of proof beyond a reasonable doubt, could
reasonably conclude that the de fendant was guilty of the charge d offense, this court will
not disturb the verdict. Id. at 25-26.
In order to convict Yuoh of firs t-degree criminal sexual conduc t, the state was
required to prove that (1) Yuoh intentionally penetrated A.K., (2) A.K. did not consent to
the penetration, (3) Yuoh caused personal injury to A.K., and ( 4) Yuoh used force or
coercion to accomplish the penetration. Minn. Stat. § 609.342, subd. 1(e)(i) (2016). Yuoh
argues that the state failed to prove the first element: that h e engaged in criminal sexual
conduct with A.K. Alternatively, he contends that the state fa iled to prove that he used
force or coercion. We address each argument in turn.
a. Evidence of criminal sexual conduct with A.K.

In order to address Yuoh’s argument that the state failed to p rove that he engaged
in criminal sexual conduct with A.K., we first review the evidence that the state presented

8
at trial. On this element, the state presented significant dir ect evidence in the form of
A.K.’s testimony that Yuoh put his penis in her “butt” after sh e told him that she did not
want to do that. This evidence was corroborated by testimony f rom the sexual assault
nurse, who testified that the injuries A.K. suffered were consistent with a penis being forced
into the anus. Further, two police officers and the sexual assault nurse testified about how
A.K. described the assault to them, which was generally consistent with A.K.’s testimony.
This evidence, considered in the light most favorable to the co nviction, was sufficient for
the jury to conclude that Yuoh engaged in criminal sexual condu ct with A.K. Horst, 880
N.W.2d at 40.
Despite this evidence, Yuoh contends that the state failed to p rove that he engaged
in criminal sexual conduct with A.K. because (1) A.K. was not a credible witness and
(2) the corroborating evidence was lacking and circumstantial.
Yuoh’s argument that A.K. was not credible rests on his assert ion that A.K.’s drug
use prior to the assault made her recollection unreliable. Alt hough Yuoh is correct that
A.K. did testify that when she was under the influence of PCP, she would sometimes “space
out” and have difficulty with time frames, A.K. also testified that she remembered the
assault because it significantly affected her life. Further, the sexual assault nurse testified
that A.K. was alert and oriented and able to answer her questions. Ultimately, the jury was
presented with all of this testimony, and it is the jury’s role to determine the credibility of
witnesses. State v. Foreman, 680 N.W.2d 536, 539 (Minn. 2004). The jury found A.K.
credible, which is within its purview.

9
Nor are we persuaded by Yuoh’s contention that the absence of corroboration in this
case warrants a determination that insufficient evidence suppor ted his conviction. In
general, “a conviction can rest on the uncorroborated testimony of a single credible
witness.” State v. Hill , 172 N.W.2d 406, 407 (Minn. 1969). And in criminal-sexual-
conduct cases, a victim’s testimony does not require corroboration. Minn. Stat. § 609.347,
subd. 1 (2016). Because it appears that the jury found A.K. to be a credible witness, further
evidence corroborating her testimony was not required. But eve n though corroborating
evidence was not required, the state presented evidence of A.K. ’s injuries and of A.K.’s
prior consistent statements abou t the sexual assault, each of w hich corroborated A.K.’s
testimony at trial. The fact that no physical evidence conclus ively established that Yuoh
sexually assaulted A.K. and that no video footage showed them t ogether outside the
apartment building does not change the fact that the evidence that the state presented was
sufficient for the jury to conclude that Yuoh engaged in criminal sexual conduct with A.K.
b. Evidence of sexual penetration through force or coercion.

To address Yuoh’s alternative ar gument that the state failed to prove that he sexually
penetrated A.K. by using force or coercion, we review the evidence that the state presented
on this element at trial. A.K. testified that after she told Yuoh that she did not want t o
engage in sexual activity with him, he turned her around to face the wall, pulled her pants
down, and put his penis in her “butt.” She further testified that it hurt when Yuoh put his
penis inside her “butt,” and the sexual assault nurse stated th at A.K.’s injuries were
consistent with a penis being forced into an anus. This evidence was sufficient to establish
that Yuoh inflicted bodily harm on A.K. which caused her to sub mit to sexual activity,

10
meeting the statutory definition of force. See Minn. Stat. § 609.341, subd. 3 (2016)
(defining “force”); State v. Brouillette, 286 N.W.2d 702, 706 (Minn. 1979) (finding force
where defendant forcefully grabbed victim by the shoulders, tur ned her around, and
grabbed her in the buttocks and vaginal area and the victim testified that she was afraid the
defendant might hurt her).
But Yuoh argues that A.K.’s testimony that “[a]nd he didn’t like force really hard
to grab me, but he turned me around to the wall” establishes that Yuoh did not use force to
assault A.K. Further, Yuoh contends that A.K. did not testify that she was scared and that
the state did not establish that Yuoh was significantly larger than A.K. Although Yuoh is
correct that A.K. testified that Yuoh did not “force really har d to grab [her],” the sexual
assault nurse testified that A.K. suffered injuries consistent with a penis being forced into
her anus. And A.K.’s testimony that Yuoh turned her around to face a wall, pulled down
her pants, and caused her physical pain while anally penetratin g her, is sufficient to meet
the statutory definition of force. See Minn. Stat. § 609.341, subd. 3; State v. Meech, 400
N.W.2d 166, 167-68 (Minn. App. 1987) (upholding a conviction for third-degree criminal
sexual conduct where defendant t old the victim to “shut up,” pu shed up her nightgown,
and held her hands down during th e assault). Accordingly, we c onclude that the state
presented sufficient evidence th at Yuoh sexually penetrated A.K . by using force or
coercion.

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II. Although the prosecutor committed misconduct amounting to p lain error
during his closing argument, the error did not affect Yuoh’s substantial rights.

Yuoh argues that during closing argument, the prosecutor commit ted several
instances of misconduct which denied Yuoh his right to a fair t r i a l . B e c a u s e Y o u h ’ s
argument contains both instances of unobjected-to and objected-to misconduct, we review
each category of allegations separately.
a. Unobjected-to allegations of prosecutorial misconduct
A prosecutor commits misconduct if he violates established stan dards of conduct,
including caselaw, rules, or orders by a district court. State v. Fields, 730 N.W.2d 777, 782
(Minn. 2007). Yuoh alleges three instances of unobjected-to prosecutorial misconduct that
were plain error: the prosecuto r’s speculation about the events of the sexual assault, the
prosecutor’s attack on the veracity of Yuoh’s testimony, and th e prosecutor’s decision to
attack the defendant’s character and inject his personal opinion into the trial.
When the defendant fails to object during trial, we review alle gations of
prosecutorial misconduct under a modified plain-error standard. State v. Ramey , 721
N.W.2d 294, 302 (Minn. 2006). Under this standard of review, the appellant must establish
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. If the appellant establishes plain error, the burden then shifts to the state to demonstrate
that the misconduct did not affect the appellant’s substantial rights. Id. If all three elements
of the test are met, “[this court] may correct the error only i f it seriously affect[s] the

12
fairness, integrity, or public reputation of judicial proceedin gs.” State v. Peltier , 874
N.W.2d 792, 804 (Minn. 2016) (quotations omitted).
First, Yuoh argues the prosecutor committed misconduct by spec ulating about
Yuoh’s motives for committing a sexual assault. The prosecutor argued:
The defendant selected the victim because he knew that
she didn’t have any resources, he knew that she was homeless,
he knew that she was using drugs, he knew that she had no
money, no cell phone, seemed like she didn't have any family
that cared about her. He figured that he would get away with
it because, after all, who is going to believe her? He probably
figured she wouldn’t even come in to testify yesterday. The
defendant selected the victim in this case because of her
particular vulnerabilities. Hopefully he doesn’t get away with
it.

Yuoh argues that there was no ev idence in the record to support the prosecutor’s
speculation about his k n o w l e d g e o f A . K . ’ s s i t u a t i o n , a n d t h a t this argument and the
prosecutor’s statement that “hopefully he doesn’t get away with it” only served to inflame
the passions of the jury.
Caselaw is clear that prosecutors m a y n o t s p e c u l a t e a b o u t e v e nts that occurred
during the crime without a factual basis in the record. State v. Bradford, 618 N.W.2d 782,
799 (Minn. 2000). Further, a pr osecutor’s closing argument mus t not be intended to
“inflame the passions and prejudices of the jury against the defendant.” State v. Clark, 296
N.W.2d 359, 371 (Minn. 1980). But prosecutors may draw reasonable inferences from the
evidence presented at trial. State v. Porter, 526 N.W.2d 359, 363 (Minn. 1995).
The prosecutor’s statement that “[h]opefully he doesn’t get away with it” constitutes
clear misconduct amounting to plain error. This statement may have served to inflame the

13
jury’s passions and prejudice against Yuoh. But testimony esta blished that Yuoh knew
A.K. did not have a place to go and that A.K. was under the influence of several substances,
making her vulnerable, and it was reasonable for the prosecutor to infer from this testimony
that Yuoh targeted A.K. becau se of those vulnerabilities. Acco rdingly, the remainder of
the prosecutor’s statements are reasonable inferences from the evidence presented at trial.
Yuoh’s second allegation of prosecutorial misconduct involves comments from the
prosecutor about the veracity of his testimony. The prosecutor argued:
Do you believe [A.K.] or do you believe the defendant,
a two-time felon who was obviously lying yesterday?

The defendant’s testimony yesterday seemed to almost
trivialize the sexual assault. He testified that the injuries on
[A.K.] must have come from a big bowel movement because
he himself had a big bowel movement three days ago.

. . . .

His explanation of [A.K.’s] multiple injuries to her
perineum and her anal verge was that she was in the bathroom
for a long time on August 17, 2016. Again, his testimony of
having a
big poop and then his own testimony that he himself
had a big poop three days ago, it trivializes what happened to
[A.K], it trivializes the sexual assault that occurred in this case.

Yuoh contends that these statemen ts were inappropriate comments on the veracity of his
testimony and constituted the prosecutor improperly giving his own opinion about Yuoh’s
credibility.
During closing arguments, pros ecutors are permitted “to analyz e the evidence and
argue that particular witnesses were or were not credible. State v. Wright , 719 N.W.2d
910, 918-19 (Minn. 2006). But it is improper for a prosecutor to give his own opinion

14
about the credibility of a witness during closing argument. State v. Mayhorn, 720 N.W.2d
776, 791 (Minn. 2006). Here, the prosecutor went beyond arguin g that Yuoh was not
credible and gave his own opini on about Yuoh’s credibility by s tating that he “was
obviously lying yesterday.”
Still, the state argues that the prosecutor’s comment was prop er, noting that Yuoh
opened up the issue of his credibility by voluntarily testifying on his own behalf. See State
v. Sharich, 209 N.W.2d 907, 911 (Minn. 1973) (noting that by voluntarily testifying on his
own behalf, a defendant opens up the issue of only his credibil ity). Although Yuoh’s
decision to testify did open the door to the issue of his credibility, the prosecutor’s comment
that Yuoh was “obviously lying” goes beyond arguing that Yuoh w as not a credible
witness. Instead, the prosecutor offered his own opinion about Yuoh’s credibility: that he
was obviously lying. Because th e prosecutor violated a standar d established by caselaw,
by giving his own opinion about Yuoh’s credibility, his statement is misconduct amounting
to plain error. See Ramey, 721 N.W.2d at 302.
Finally, Yuoh maintains that the prosecutor attacked his character and injected his
personal opinion into his closing argument by arguing:
What the defendant did to [A.K.] is criminal, it is wrong,
and it has been wrong and criminal since the very first time
h u m a n s e v e n w r o t e a l e g a l c o d e m o r e t h a n 4 0 0 0 y e a r s a g o ,
nearly 4000 years ago, when the crime of rape was specifically
spelled out and punishable. I mean, for a grown man to
sexually assault a homeless teenage girl has got to be one of
the lowest things you can do.

Yuoh contends that this statement attacked his character and am ounted to the prosecutor
injecting his personal opinion into the closing argument.

15
Prosecutors may not inject their personal opinions into a case . State v. Blanche, 696
N.W.2d 351, 375 (Minn. 2005). Preventing prosecutors from expr essing their own
opinions serves “to prevent exploitation of the influence of th e prosecutor’s office.” Id.
(quotation omitted). Here, the p rosecutor’s statement that “I mean, for a grown man to
sexually assault a homeless teenage girl has got to be one of the lowest things you can do”
is injecting the prosecutor’s own personal opinion into the case. As such, the prosecutor’s
comment violated caselaw, which constitutes prosecutorial misconduct amounting to plain
error. See id., (cautioning the state to avoid any language constituting the prosecutor’s
personal opinion).
In sum, the prosecutor’s comments about hoping Yuoh did not ge t away with
sexually assaulting A.K. and his comments that Yuoh was “obviou sly lying” and that “I
mean, for a grown man to sexually assault a homeless teenage girl has got to be one of the
lowest things you can do” constituted prosecutorial misconduct amounting to plain error.
Because Yuoh established plain error, the burden shifts to the state to establish that
the error did not affect Yuoh’s substantial rights. See Ramey, 721 N.W.2d at 302. A plain
error affects a defendant’s substantial rights when “it was pre judicial and affected the
outcome of the case.” State v. Parker , 901 N.W.2d 917, 926 (Minn. 2017) (quotation
omitted). An error is prejudicial when “there is a reasonable likelihood that the error had
a significant effect on the jury’s verdict.” Id. (quotation omitted). When evaluating the
effect of prosecutorial misconduct on substantial rights, we co nsider various factors,
including “the pervasiveness of improper suggestions and the st rength of the evidence
against the defendant.” Id. (quotations omitted).

16
The state contends that any e rror did not affect Yuoh’s substa ntial rights because
the comments were brief and not pervasive and because the judge properly instructed the
jury. See State v. James, 520 N.W.2d 399, 405 (Minn. 1994) (noting that in the context of
the entire proceeding, a prosecu tor’s improper comment was harm less). Based on our
review of the entire record, we agree.
When considering the closing ar guments as a whole, the prosecu tor’s comments
amounting to error were fundamentally troubling yet relatively brief, amounting to three
sentences in the context of a nearly 25 page closing argument. The vast majority of the
prosecutor’s closing argument ap propriately focused on outlinin g the law and the state’s
case and summarizing the evidence presented. See State v. Johnson, 616 N.W.2d 720, 729
(Minn. 2000) (noting that a prosecutor’s comments must be consi dered in the context of
the entire closing argument). More critically, the state prese nted a strong case against
Yuoh, including: A.K.’s testimony, evidence of her injuries, forensic testimony that Yuoh
could not be excluded as a cont ributor to the saliva found on A .K.’s neck, evidence that
A.K. identified Yuoh in a photo line-up as the man who assaulted her, and testimony from
two police officers and the sexual assault nurse about how A.K. described the assault to
them, which was consistent with A.K.’s testimony. See id. at 730 (noting that when
reviewing not just the prosecut or’s closing argument but the re cord as a whole, the
defendant was not prejudiced by the prosecutor’s comments). Given that the prosecutor’s
comments were brief and the stre ngth of the evidence against Yu oh, the state has
sufficiently demonstrated that a ny error did not affect Yuoh’s substantial rights.
Accordingly, a new trial on the basis of prosecutorial misconduct is not warranted.

17
b. Objected-to allegations of prosecutorial misconduct
Yuoh also alleges that he was deprived of a fair trial due to prosecutorial misconduct
that he objected to at trial. We review objected-to allegations of prosecutorial misconduct
for harmless error. State v. Hunt, 615 N.W.2d 294, 302 (Minn. 2 000). But the standard
for determining whether an error was harmless varies based upon t h e s e v e r i t y o f t h e
misconduct, requiring certainty beyond a reasonable doubt that misconduct was harmless
in cases involving unusually ser ious prosecutorial misconduct a nd, in less serious cases,
reviewing whether the misconduct likely “played a substantial part in influencing the jury
to convict.”4 State v. Caron, 218 N.W.2d 197, 200 (Minn. 1974).
Yuoh argues that the prosecutor committed misconduct during closing argument by
belittling the defense and improperly shifting the burden of proof. The prosecutor argued:
The defendant in his testimony suggested that maybe
one of his buddies, Tim or Todd, the O.G., could have possibly
sexually assaulted [A.K.]. That’ s the first we heard of that.
And if the defendant truly be lieves that was a possibility it
would have made sense for him to mention it to Investigator
Gates when Investigator Gates interviewed the defendant about
this? Because remember, the de fendant testified that he was
playing Investigator Gates because he knew that there was a
setup coming. So wouldn’t the defendant explain to
Investigator Gates these
alternative perpet rators, Tim and
Todd, the O.G., when he was interviewed by the investigator?

. . . .

The defendant has the right to a trial and he has the right
to an attorney. And before the defendant testified yesterday it
was evident what type of strategy [defense counsel] was using

4 The Minnesota Supreme Court has questioned whether this two-ti ered 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).

18
in a case where there was strong evidence against his client.
[Defense counsel’s] strategy was to discredit [A.K.] and to
suggest that the investigation was insufficient.

I t w a s a t w o - p r o n g e d a p p r o a c h . [ D e f e n s e c o u n s e l ]
questioned Robbinsdale Police Officer Casey Landherr asking
why he didn’t knock on eight y to ninety doors at the
Robinwood apartment building until he found Tim. [Defense
c o u n s e l ] t r i e d t o s u g g e s t t h a t t h e B C A d i d n ’ t d o a f u l l j o b
because they didn’t do blood t yping on the sperm cell which
[the BCA scientist] testif ied is a type of forensic
science that
hasn’t been used in at least twen ty years and she only learned
about as a historical thing. So the strategy was discredit [A.K.]
and try to demonstrate that the i nvestigation and the forensic
science was somehow insufficient.

And then the defendant testified, really threw a monkey
wrench into things. It will be interesting to see how [defense
counsel] incorporates the big poop defense in his closing
argument, or the grand conspiracy among who knows how
many people. How will [defense counsel] handle the fact that
the defendant admitted that he did kiss [A.K.]?

At this point, defense counsel objected, and the district court sustained the objection. The
prosecutor then reminded the jury that Yuoh had no burden in th e case, meaning that he
did not have to testify, present any evidence, or give a closing argument, and that the state
needed to prove everything beyond a reasonable doubt. But Yuoh contends that comments
in the prosecutor’s rebuttal also amounted to belittling his defense:
So this is the state’s opportunity to respond to
arguments made by the defense in their closing argument. This
is not a second closing argument from me.

And, as predicted, the defense did make a closing
argument even though they are not required to. And, as
predicted, the defense did attack the credibility of [A.K.]. . . .

. . . .

19
You saw the blame the victim defense. Classic defense,
blame the victim. She should have gone to a homeless shelter,
she shouldn’t have been using drugs, she shouldn’t have eaten
that food she couldn’t afford, she had no money.

Assuming without deciding that t hese comments constituted error , any error was
harmless, even if we apply the mo re stringent harmless-beyond-a -reasonable-doubt
standard. As noted above, the state presented significant evid ence of Yuoh’s guilt to the
jury. Further, at the district court’s order, the prosecutor f ollowed his comments with a
reminder to the jury about the burden of proof, and the distric t court comprehensively
instructed the jury about the b urden of proof requirement. See State v. Budreau , 641
N.W.2d 919, 926 (Minn. 2002) (noting that the law presumes that jurors follow the district
court’s instructions). Accordingl y, given the strength of the evidence and the corrective
statements by both the prosecuto r and the district court, we di scern that any error was
harmless and does not warrant a new trial.
Finally, we note that the cumulative effect of any prosecutoria l misconduct during
closing arguments does not warrant a new trial. We find the identified comments from the
prosecutor disturbing. But upon review of the entire record, w e are satisfied that the
prosecutor’s comments did not prejudice Yuoh. The state presented a strong case against
Yuoh, including testimony from A.K. which was corroborated by n umerous other
witnesses who testified about wh at she disclosed to them. When the prosecutor’s brief,
isolated comments—considered cumulatively—are viewed in light of the entire record, we
discern no prejudice warranting a new trial on the basis of pro secutorial misconduct. See
Montanaro v. State, 802 N.W.2d 726, 734 (Minn. 2011) (concluding that after revie wing

20
the prosecutor’s closing argument in light of the entire record , any misconduct viewed in
isolation or collectively did not have a significant impact on the jury’s verdict and did not
affect the defendant’s substantial rights).
III. The district court erred by entering convictions for third and fifth-degree
criminal-sexual-conduct offenses because they are lesser-includ ed offenses of
the first-degree criminal-sexual-conduct offense.

Both Yuoh and the state agree th at the district court erred by entering convictions
for third and fifth-degree criminal-sexual-conduct offenses bec ause they are
lesser-included offenses of the first-degree criminal-sexual-conduct offense. We agree as
well.
Under Minnesota Statutes section 609.04, subdivision 1 (2016), an actor may be
convicted of “either the crime charged or an included offense, but not both.” An included
offense may be “a lesser degree of the same crime.” Minn. Stat . § 609.04, subd. 1(1).
Accordingly, a defendant cannot be convicted of two separate co unts of criminal sexual
conduct based on one act or course of conduct. State v. Folley , 438 N.W.2d 372, 373
(Minn. 1989).
Here, all of the criminal-sexual-conduct charges stemmed from a single act: Yuoh’s
sexual assault of A.K. in the apartment stairwell. Therefore, although the jury found Yuoh
guilty of all three counts, it was improper for the district court to adjudicate Yuoh guilty of
third and fifth-degree criminal sexual conduct because the third and fifth-degree criminal-
sexual-conduct offenses are lesse r-included offenses of the fir st-degree criminal-sexual-
conduct offense. As such, we reverse Yuoh’s convictions for th ird and fifth-degree

21
criminal sexual conduct and remand to the district court for co rrection of the warrant of
commitment.
In sum, sufficient evidence supported Yuoh’s conviction of fir st-degree criminal
sexual conduct and any prosecuto rial misconduct that occurred d oes not warrant a new
trial. Accordingly, we affirm Yuoh’s first-degree criminal-sexual-conduct conviction. But
we reverse his convictions for third and fifth-degree criminal sexual conduct because they
are lesser-included offenses of the first-degree criminal sexua l conduct and remand for
correction of the warrant of commitment.
Affirmed in part, reversed in part, remanded.