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This opinion will be unpublished and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
A18-0663

State of Minnesota,
Respondent,

vs.

Joseph James Nolan,
Appellant.

Filed May 20, 2019
Affirmed
Ross, Judge

Hennepin County District Court
File No. 27-CR-17-17904

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

Michael O. Freeman, Hennepin County Attorney, Jean E. Burdorf, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Deborah Ellis, Ellis Law Office, St. Paul, Minnesota (for appellant)

Considered and decided by Johnson, Presiding Judge; Ross, Judge; and Jesson,
Judge.
U N P U B L I S H E D O P I N I O N
ROSS, Judge
A jury found Joseph Nolan guilty of second-degree criminal sexual conduct for
fondling the genitals of his nine-year-old niece in his basement. Nolan appeals, arguing
that there was insufficient evidence to convict him, that the prosecutor engaged in
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misconduct during closing arguments, and that the district court erred by denying his
motion for a mistrial after a juror admitted to conducting outside research. None of his
arguments succeed and we affirm.
FACTS
The state charged Joseph Nolan in 2017 and 2018 with both first- and second-degree
criminal sexual conduct occurring in 2013. According to trial testimony leading to Nolan’s
conviction of second-degree criminal sexual conduct, Nolan was babysitting six children
in late 2013 when he followed his nine-year-old niece into the basement. Nolan pushed her
onto the couch and touched her genitals, first over and then under her clothing. The girl did
not discuss the incident until May 2017, when she told her mother that her uncle had
touched her. The girl then spoke with her therapist, who reported the incident to police.
At the close of the trial, the prosecutor argued that the jury should not believe
Nolan’s testimony because he had an interest in the outcome of the case. The prosecutor
also emphasized that statements made by Nolan’s attorney about documents not presented
to the jury were not evidence. During deliberation, the foreperson sent the trial judge a note
inquiring whether it violated the rules for a juror to consult a legal dictionary for the
meaning of a legal term—“reasonable doubt.” The judge brought the foreperson into the
courtroom and answered the inquiry, explaining that a juror’s conducting additional
research violates the court’s instructions. T he judge brought the entire jury into the
courtroom, repeated the same admonition, and instructed the jury not to allow any outside
research to influence its decision. Nolan moved unsuccessfully for a mistrial. On the
prosecutor’s request, the judge called the researching juror into the courtroom,
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reemphasized that no outside research should be performed, and instructed him to rely
solely on the evidence in the case and the legal instructions given by the judge. The juror
apologized and said he understood.
The jury found Nolan guilty. He appeals.
D E C I S I O N
Nolan raises three arguments on appeal. None succeed.
I
Nolan argues first that the state offered insufficient evidence for the jury to find him
guilty of second-degree criminal sexual conduct. We review insufficient-evidence claims
by examining whether the evidence, viewed in the light most favorable to the conviction,
could support the jury’s verdict of guilt beyond a reasonable doubt. State v. Olhausen,
681 N.W.2d 21, 25 (Minn. 2004). We assume that the jury believed the state’s witnesses
and disbelieved contrary evidence. Id.
The eyewitness account is sufficient. A person commits second-degree criminal
sexual conduct if he engages in sexual contact with a person who is under 13 years old and
he is more than 36 months older than she is . Minn. Stat. § 609.343, subd. 1(a) (2012 ).
Sexual contact includes “the intentional touching by the actor of the complainant’s intimate
parts.” Minn. Stat. § 609.341, subd. 11(a)(i) (2012). The jury heard the victim testify that,
when she was nine years old, Nolan touched her genitals both over and under her clothing.
A victim’s testimony alone can support a conviction of second-degree criminal sexual
conduct. Minn. Stat. § 609.347, subd. 1 (2018); see also State v. Hill, 172 N.W.2d 406, 407
(Minn. 1969). The state provided sufficient evidence to allow the jury to find him guilty.
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Nolan asks for a different outcome, urging that the complainant’s testimony is “not
reliable or w orthy of belief .” He i mplores, “[S] urely this Court cannot agree that [the
complainant’s] testimony alone established a case against appellant beyond a reasonable
doubt.” Nolan’s argument overlooks that it is the jury’s “exclusive function” to determine
witness credibility. Dereje v. State, 837 N.W.2d 714, 725 (Minn. 2013). Our deference
rests on the reality that “[o]bviously the trial court is in a far better position than we are to
evaluate the various factors bearing on the credibility of the witnesses, such as their
demeanor, disposition, and character.” Albertson v. Albertson, 67 N.W.2d 463, 466
(Minn. 1954); see also Dereje, 837 N.W.2d at 726 (applying Albertson’s observation in an
appeal challenging a criminal conviction). Nolan’s urging depends on our making a
credibility determination and then substituting it for the jury’s. This we cannot do. We see
gaps in the complainant’s account as Nolan’s attorney emphasized during closing
arguments. But our duty to defer to the jury’s credibility finding as implied by its guilty
verdict leads us to decline assessing credibility further except to say that Nolan has not
identified a circumstance indicating that the complainant’s testimony is incredible as a
matter of law.
II
Nolan argues next that the prosecutor erred by saying that Nolan has “the most
interest” in the outcome of the case and by asking the jury not to consider Nolan’s
attorney’s interpretation of documents not entered into evidence. Because Nolan did not
object to the prosecutor’s arguments at trial, we review both a rguments under a modified
plain-error standard. State v. Ramey, 721 N.W.2d 294, 302 (Minn. 2006). Under this
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standard, Nolan must first show that the prosecutor committed plain error. See id. If he is
successful, the burden shifts to the state to prove that the error did not affect Nolan’s
substantial rights. See id. Because no error occurred, our analysis ends there.
Nolan maintains that the prosecutor erred by urging the jury to consider Nolan’s
interest in the outcome of the case at closing arguments, contending that commenting on a
defendant’s interest in the outcome of a case violates his constitutional rights. Both the
United States Constitution and the Minnesota State Constitution protect the right of a
defendant to remain silent at his own criminal trial. U.S. Const. amend. V; Minn. Const.
art. I, § 7. Both the United States Supreme Court and the Minnesota Supreme Court have
held that the prosecution cannot comment on the defendant’s right to remain silent.
Griffin v. California, 380 U.S. 609, 615, 85 S. Ct. 1229, 1233 (1965); State v. Whittaker,
568 N.W.2d 440, 451 (Minn. 1997). Nolan argues that, just as the prosecution cannot
comment on a defendant’s right to remain silent, it also cannot attack the credibility of a
testifying defendant on the basis that the defendant has an interest in the outcome of the
case. The argument is unconvincing.
In contrast to when a defendant exercises his right to remain silent, when a defendant
testifies at trial, he is willingly acting as a witness and exposing himself to credibility
challenges. State v. Silvers, 40 N.W.2d 630, 632 (Minn. 1950). By choosing to testify,
Nolan exposed himself to the same credibility challenges that face any other witness,
including questions of bias. A witness’s bias through self -interest bears on his credibility.
State v. McArthur, 730 N.W.2d 44, 51 (Minn. 2007). And it is “gene rally permissible for
counsel to attempt to discredit a criminal defendant by emphasizing that he is a party and
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has an interest in the outcome.” City of St. Paul v. Willier, 231 N.W.2d 488, 489 (Minn.
1975). That the prosecutor called attention to Nolan’s interest in the outcome of the
criminal trial did not violate Nolan’s constitutional rights.
Nolan maintains also that the prosecutor erred by telling the jury to disregard his
attorney’s arguments about documents not admitted into evidence. Before this argument,
the district court had instructed jurors that “the arguments or other remarks of an
attorney are not evidence.” This fits the maxim that attorney arguments are not evidence.
See State v. McCoy, 682 N.W.2d 153, 158 (Minn. 2004). Nolan’s attorney’s interpretation
of the documents is not evidence, and the prosecutor did not improperly inform the jury
that neither the attorney’s description nor his interpretation of documents constituted
evidence.
Nolan complains that the prosecutor’s argument implied that Nolan’s attorney was
manufacturing evidence. The prosecutor’s actual argument dispels the contention:
A lot of . . . [Nolan]’s closing argument here was explaining to
you sort of back scene things from his perspective. He was
making an argument about reports and things that he looked at
that you didn’t see. So if you didn’t see it, if it’s not an exhibit
here and it didn’t come out of the mouth of a witness, it’s not
evidence.

The argument reiterated that an attorney’s arguments are not evidence. We see no
misconduct here, even if Nolan’s attorney believes the argument questioned his integrity.
III
Nolan next argues that the district court erred by denying his mistrial motion after a
juror consulted a legal dictionary for the definition of “reasonable doubt.” We review a
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denial of a motion for mistrial for an abuse of discretion. State v. Griffin, 887 N.W.2d 257,
262 (Minn. 2016). The state does not defend the juror’s conduct, but it defends the district
court’s decision not to order a mistrial. The district court should grant a mistrial motion
only if there is a reasonable probability that an error created sufficient prejudice to deny
the defendant a fair trial. Id. The district court took multiple remedial steps to minimize
any potential impact of the juror’s improper behavior, leading us to conclude that it did not
abuse its discretion by denying the motion.
The record reveals the district court’s reaction to the juror’s research activity. As
soon as the district court learned of it, it told the foreperson that researching legal
terminology contradicted the court’s directives. It then summoned all jurors and repeated
what it had told the foreperson. It also reinstructed the jury to rely solely on the evidence
heard in court and the admitted exhibits. And it summoned the offending juror individually
and told him that he was not permitted to conduct research, that he must rely on the district
court’s instructions on the law, and that he should disregard whatever he learned in his
research. Nolan points to nothing in the record suggesting that the district court’s corrective
admonition was ineffective, and he instead asks us to conclude that the outside research
affected the jury’s verdict so significantly that it necessitated a mistrial.
We reje ct Nolan’s argument. Factors bearing on whether outside information
affected the jury’s verdict include the nature and source of the material, the number of
exposed jurors, and the effectiveness of the curative measures taken to reduce prejudice.
State v. Cox, 322 N.W.2d 555, 559 (Minn. 1982). Neither party found it necessary to
inquire into what the juror’s research revealed. The record therefore discloses nothing from
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which we can infer that the research misinformed the juror about reasonable doubt.
Nor does it suggest that any other juror learned the content of the research or that the district
court’s prompt curative measures failed to fix any problem. We have no reason to suppose
that the lone juror’s improper research so prejudiced Nolan’s defense that it infected the
verdict.
Affirmed.