David Wayne Benolt, petitioner, Appellant,

This opinion will be unpublished and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
A18-1364

David Wayne Benolt, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed May 13, 2019
Affirmed
Rodenberg, Judge

Isanti County District Court
File No. 30-CR-14-585

Cathryn Middlebrook, Chief Appellate Public Defender, Jenna Yauch-Erickson, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

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

Jeffrey R. Edblad, Isanti County Attorney, Cambridge, Minnesota; and

Scott A. Hersey, Special Assistant County Attorney, St. Paul, Minnesota (for respondent)

Considered and decided by Brat vold, Presiding Judge; Rodenberg , Judge; and
Reilly, Judge.
U N P U B L I S H E D O P I N I O N
RODENBERG, Judge
In this appeal from the district court’s order denying his petition for postconviction
relief, appellant argues that he is entitled to a new trial bas ed on the prosecutor’s plainly

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erroneous misconduct during summation by referring to a witness statement that was not
in the record. We affirm.
FACTS
Appellant went camping with an 11-year-old girl, O.M., who described appellant as
being like an uncle to her. O.M. lived with her father in Miss ouri but was visiting her
mother in Minnesota during the summer of 2014. O.M. and her ha lf-sister, T.W., had
planned to go on a camping trip with appellant but T.W had to work, so O.M. and appellant
went camping without T.W. Appella nt picked O.M. up at her moth er’s house. O.M.
testified that they stopped at a restaurant, a store, and a liq uor store before arriving at the
site where they would camp. After setting up camp, O.M. told appellant that she was thirsty
and appellant prepared a drink for her. O.M. thought that the drink “tasted weird,” and
appellant told her it was sprite and alcohol. O.M. testified that “I got sick and I threw up.”
O.M. was tired and went to sleep in the tent.
O.M. testified at trial that she woke to find one of appellant ’s hands grabbing her
breast underneath her bra, and appellant’s other hand on her bu ttocks beneath her
underwear. O.M. said that appellant unhooked her bra. O.M. moved away and, according
to O.M., appellant said, “I’m sorry, I thought that’s what you wanted.” O.M. testified that
she left the tent. Appellant left the tent and gave her a flas hlight so she would not trip.
O.M. said that she ran to the brightest house she could see and knocked on the door. K.P.
and J.S. answered the door and O.M. described what had happened.
K.P. testified that O.M. appeared scared, and O.M. said that she was on a camping
trip with someone “like an uncle” who started touching her inappropriately. K.P.’s mother,

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L.P., spoke with O.M. and then called the police. L.P. testifi ed that O.M. was without
socks or shoes and appeared to be scared and confused. While w aiting for the police to
arrive, L.P. testified that O.M. was fidgeting with her back because appellant had unclasped
her bra. Deputy Heiller arrived, and L.P, K.P., and J.S. stepp ed outside so that Deputy
Heiller could talk to O.M. privately. O.M. told Deputy Heiller that she woke up in a tent
with appellant’s hands down her pants and under her bra. O.M. told Deputy Heiller that
she got up to go the bathroom and then came to L.P.’s residence looking for help.
Deputy Heiller testified at trial that O.M. told him on the nig ht of the occurrence
that appellant gave her a drink with alcohol in it. O.M. told Deputy Heiller that the drink
made her throw up. Deputy Heiller administered a breath test, which revealed no alcohol
in O.M.’s system. Deputy Heiller testified that he was not sur prised that there was no
alcohol detected in O.M.’s system under the circumstances. Aft er talking with O.M.,
Deputy Heiller left her with the homeowner. Deputy Heiller then left and found appellant
walking down the road. Appellant told Deputy Heiller that he was camping with O.M. and
was looking for her because she had left the campsite. Deputy Heiller read appellant his
Miranda rights and placed him in custody. Deputy Heiller asked appellant about a sexual
assault and appellant replied that O.M. was probably being dram atic. Appellant did not
think it strange that he was camping with an 11-year-old girl, and he denied providing her
any alcohol. Appellant said that there was an unattended fire at the campsite, so Deputy
Heiller returned to the campsite with appellant. Deputy Heiller noticed the tent and a bottle
of baby oil inside it, and noticed alcohol and O.M.’s shoes out side of the tent. Deputy
Heiller took photographs for evidence.

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Deputy Heiller then returned to the home where he had left O.M., with appellant in
the back of his squad car. L.P. testified that O.M. appeared f rightened when she heard
Deputy Heiller say that appellant was in the car.
Investigator Carlson testified at trial that he collected an overnight bag that appellant
had in the tent, and found thr ee bottles of Cinnabon Roll liquo r and two bottles of pink
Kinky liquor, which he photographed. This evidence corroborated what O.M. had told him
about vomiting after having a drink mixed with a pink liquid. In addition to the bottle of
baby oil that Deputy Heiller observed inside the tent, Investigator Carlson found petroleum
jelly and feminine hygiene wipes in appellant’s bag. Investiga tor Carlson observed that
there was one air mattress and two unzipped sleeping bags insid e the tent, which
corroborated O.M.’s account of not necessarily being in a sleeping bag but having covers.
O.M.’s mother, M.B. testified at trial. M.B. testified that a ppellant was a friend of
her father and her father’s girlfriend, D.B. After M.B.’s fath er passed away, appellant
began to live with D.B. M.B. testified that she understood O.M. was going camping with
T.W. and appellant, and that she would not have allowed O.M. to go camping if she had
known T.W. was not going to be present.
D.B. testified at trial that appellant and O.M.’s half-sister, T.W., live with her. D.B.
considers appellant to be like a son. D.B. was in a relationsh ip with O.M.’s grandfather
for 30 years and considers O.M. to be her grandchild. Appellant moved in with D.B. after
O.M.’s grandfather passed away and helps D.B. maintain the hous e and assists her with
errands. D.B. testified that she asked O.M. to look her in the eye and tell her what happened
in the camping incident, but O.M. could not do it. When D.B. asked O.M. if appellant had

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done something to her, O.M. said “oh, yeah, he did.” D.B. beli eves that O.M. was mad
that appellant would not take her on rides at the Mall of America and accused appellant of
improperly touching her to get revenge.
D.B. testified at trial that appellant never told her about wha t happened in the tent
with O.M. The prosecutor then showed D.B. a summary of a pretr ial conversation that
D.B. had with the prosecutor. The written summary indicated that D.B. and appellant had
discussed what happened in the tent. The prosecutor referenced t h e p r i o r s t a t e m e n t ,
claiming that D.B. had said that appellant told her O.M. got ti red, went in the tent, and
came back out to the fire about 15 to 20 minutes later to go th e bathroom. The statement
was used to refresh D.B.’s recollection. D.B. acknowledged the inconsistencies between
her trial testimony and the writte n summary, but she insisted t hat she had not told the
prosecutor what the summary stated. Instead, she testified tha t she did not get this
information from appellant, but rather from speaking with anoth er person. The summary
was not admitted into evidence a nd no witness other than D.B. t estified about this
conversation with the prosecuto r. As noted, D.B. testified tha t she had not told the
prosecutor what the summary reported.
Appellant also testified at trial. Appellant testified that th e camping trip as
originally planned was to includ e O.M., T.W., and T.W.’s boyfri end. For sleeping
arrangements, appellant stated that some people would have stay ed indoors because they
were camping outside of appellant’s friend’s home, to which app ellant was welcome and
had a key. Appellant testified that T.W. told him she could no t go camping because she
had to work. Appellant picked up O.M. from her mother’s house and the two of them

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travelled together and set up camp. According to appellant, O.M. said she wanted to go to
sleep at around 9:00 p.m., approximately two hours after they had arrived. Appellant said
the two of them went in the tent and laid down, O.M. tried to get close to him, and he told
her to “get the hell away” because he does not like being warm. Appellant testified that
O.M. was watching videos on appellant’s phone for 20 to 30 minutes before falling asleep.
Appellant said he decided to go outside and have a drink and li ght the fire. Appellant
testified that he was outside f or several hours and “consumed n early a liter of brandy”
before going back to the tent to get something. Appellant stated that, in addition to drinking
the brandy, he put the Kinky liquor into his wine cooler. According to appellant, when he
returned to the tent, O.M. was not there. He looked around the area and in the house, but
could not find O.M. Appellant said he took a flashlight to go look for her and that is when
he encountered Deputy Heiller.
Appellant denied having ever touched O.M. inappropriately. He also denied giving
O.M. alcohol. On cross-examina tion, appellant denied having to ld D.B. that O.M. went
into the tent, came out 15 to 20 minutes later to go the bathro om, got a flashlight from
appellant, but never came back.
In closing argument, the pros ecutor referenced and relied on D.B.’s prior statement,
arguing:
[D.B.] I asked her some pretty specific questions about a
statement that she had given a few weeks back at which she
now disagreed with, but in tha t initial statement and what I
asked her was what the [appellant] first told her, and what she
had provided was that [appellant ] told [D.B. that] [O.M.] was
tired and went in the tent, 15 to 20 minutes later she comes out
of the tent, says I have to go to the bathroom, he says, take a

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lantern or a light and she never comes back. That’s not even
close to what he told Deputy Heiller. We’re talking about 15
to 20 minutes verses an hour t o an hour and a half. We’re
talking about [O.M.] saying this is what I’m going to do in the
version of [D.B.] versus in the version of Deputy Heiller, I left
and she was gone. Now, [D.B.] y esterday told you guys that
well, only the beginning and the end of what I originally told
you is true, the rest came from [T.W.’s boyfriend], which kind
of came out of nowhere, but that ultimately the [appellant]
simply said, I don’t know why I’m being charged, I don’t know
what’s going on, which, again, is not true.

Appellant did not object or request a curative instruction concerning this argument.
The jury found appellant guilty o f two counts of second-degree criminal sexual
conduct. Appellant petitioned for postconviction relief, arguing that his convictions were
based upon prosecutorial misconduct and other trial errors. Ap pellant did not request an
evidentiary hearing. The postconviction court denied appellant’s petition.
This appeal followed, challenging only the prosecutorial-misconduct issue.
D E C I S I O N
Appellant argues on appeal that the state committed prosecutori al misconduct
during summation by referring to D.B.’s prior statement, a stat ement that D.B. denied
making (as to the relevant details) and that was not admitted in evidence.
To warrant reversal for a new tr ial, a prosecutor’s misconduct, placed into the
context of the entire trial, must be so serious as to impair th e defendant’s constitutional
right to a fair trial. State v. Johnson, 616 N.W.2d 720, 727-28 (Minn. 2000).
Generally, a defendant forfeits the right to raise an issue concerning the prosecutor’s
closing argument if the defendant fails to object or seek a cau tionary instruction at trial.
State v. Steward, 645 N.W.2d 115, 121 (Minn. 2002). When the defendant fails t o object

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during trial, prosecutorial misco nduct is reviewed under a modi fied plain-error standard.
State v. Wren, 738 N.W.2d 378, 389 (Minn. 2007). The defendant must first demonstrate
error that is plain; upon doing so, the burden shifts to the st ate to prove that the error did
not affect the defendant’s substantial rights. Id. at 393. Stated differently, the state must
show that there is no reasonable likelihood that the misconduct had a significant effect on
the verdict. State v. Ramey, 721 N.W.2d 294, 302 (Minn. 2006). In evaluating the effect
of an error on substantial rights, an appellate court considers various factors, including the
pervasiveness of improper sugge stions and the strength of the o ther evidence against the
defendant. State v. Parker , 901 N.W.2d 917, 926 (Minn. 2017). “If the State fails to
demonstrate that the alleged erro r did not affect the defendant ’s substantial rights, we
consider whether the error should be addressed to ensure fairne ss and the integrity of
judicial proceedings.” Id.
The postconviction court determined the prosecutor’s summation included error that
is plain. We agree.
An error is plain if it is clear or obvious. State v. Vue , 797 N.W.2d 5, 13 (Minn.
2011). “Typically, a plain error contravenes case law, a rule, or a standard of conduct.”
Id. “A statement not given under oath is not admissible substantively, but may be admitted
under Rule 607 for impeachment purposes.” State v. Thames, 599 N.W.2d 122, 125 (Minn.
1999).
As discussed, the prosecutor’s summation referenced D.B.’s pret rial conversation
with the prosecutor, and the prosecutor argued that the pretria l conversation was
inconsistent with D.B.’s trial testimony.

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The state argues on appeal that the manner in which the state presented D.B.’s prior
statement comported with the rul es of evidence. Specifically, the state argues that the
prosecutor successfully impeached D.B. with a prior statement, and therefore, it was not
error to reference the statemen t in summation. The state also argues that evidence of the
prior statement was admissible under the residual exception to the hearsay rule.
The state misconstrues both what transpired at trial and the ap plicable law. The
state did not successfully impeach D.B., who de nied having told the prosecut or anything
inconsistent with her trial tes timony. The residual exception to the hearsay rule has no
application to statements that w ere neither offered nor receive d into evidence. And the
prosecutor’s reference in summation to matters not in evidence was improper and plainly
so.
Under Minn. R. Evid. 613(b), on which the state relies, “[e]xt rinsic evidence of a
prior inconsistent statement by a witness is not admissible unless the witness is afforded a
prior opportunity to explain or deny the same and the opposite party is afforded an
opportunity to interrogate the witness thereon, or the interests of justice otherwise require.”
Minn. R. Evid. 613(b). The comment to the rule explains that, where a prior inconsistent
statement is offered for impeachment purposes by means of extri nsic evidence, a party
need not prove the prior inconsistent statement by extrinsic evidence if the witness admits
making the inconsistent statement. Minn. R. Evid. 613(b) 1977 comm. cmt.
Here, D.B. denied having made the statement in question—that sh e learned about
what happened at the campsite fro m appellant. D.B. acknowledge d that this is what the
summary of her prior statements said, but was adamant that the information came from

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sources other than appellant. No evidence was admitted at trial tending to prove that D.B.
talked to appellant about what happened at the campsite.
As appellant argues, the state would be able to, at most, use D.B.’s prior statement
t o a r g u e t h a t D . B . w a s n o t c r e d i b l e . B u t t h e s t a t e u s e d t h e c ontents of D.B.’s prior
statement, which was not admitted as evidence, to counter appel lant’s testimony about
what happened at the campsite. This contradicts the clear rule that a prosecutor cannot
refer to evidence outside of the record in closing argument, State v. Morton, 701 N.W.2d
225, 237 (Minn. 2005), and cannot use impeachment evidence as s ubstantive evidence in
closing, State v. Radke , 821 N.W.2d 316, 329 (Minn. 2012). Consequently, the
postconviction court properly determined that the prosecutor’s statement regarding D.B.’s
prior statement was plain error.
We next consider whether the state has demonstrated that the er ror did not affect
appellant’s substantial 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 imp roper remarks.” State v.
Peltier, 874 N.W.2d 792, 805-06 (Minn. 2016). We agree with the postc onviction court
that the record demonstrates that the error did not affect appellant’s substantial rights.
Appellant argues that the misc onduct had a serious effect on th e jury’s verdict
because the prosecutor used the content of D.B.’s statement to argue that appellant had
made changing or contradictory statements over time, and that this inference was important
to a trial that hinged on credibility.

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We agree that the error related to appellant’s credibility, and that credibility was
important to this trial. But the prosecutor’s improper argument was but a small part of the
state’s case. And the state’s case was otherwise strong. O.M. testified unequivocally about
the alleged assault and gave consistent statements to several other people—the residents at
the home to which she fled, her mother, Deputy Heiller, and Inv estigator Carlson. O.M.
left a campsite at night, without shoes on, to seek help from strangers at the nearest bright
house, which corroborates her version of events. And the error, while plain, amounted to
a few comments in the context of a summation spanning 26 pages of transcript, at the end
of a three-day trial. Cf. Peltier, 874 N.W.2d at 806 (prosecutor’s improper remarks did not
affect defendant’s substantial rights because evidence of guilt was overwhelming, incidents
of misconduct were isolated, and state did not emphasize or repeat points). Also analogous
to Peltier, the state here did not unduly emphasize or repeat the imprope r content, and it
was not in any way central to the state’s case. Id. Finally, appellant had an opportunity to
rebut the prosecutor’s remarks in his own summation. We conclu de that the prosecutor’s
error in referencing D.B.’s prior out-of-court statement did no t significantly affect the
verdict.
Appellant also filed a pro se supplemental brief, arguing that there was collusion
between his attorney and the prosecution. Specifically, appell ant argues that his counsel
was ineffective because his public defender violated rules of p rofessional conduct by
refusing to accommodate appellant’s desired trial strategy. Ad ditionally, appellant raises
constitutional concerns about the seizure of his property from the crime scene. Lastly,
appellant argues that his attorney committed a federal crime by willfully depriving him, or

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conspiring to deprive him, of a constitutionally protected right. Appellant does not indicate
which constitutional right this might be.
A p p e l l a n t ’ s a r g u m e n t s a r e b a s e d primarily on assertions outside of the record.
Although perhaps an evidentiary hearing would have developed the record on these issues,
appellant did not request an evidentiary hearing. Appellant’s arguments also lack a proper
legal basis, other than his Fourth Amendment argument concerning the seizure of evidence
from the campsite. And appellant’s argument concerning the seizure of evidence was not
raised either to the district court or in his postconviction pe tition. Because each of
appellant’s pro se arguments are either premised on assertions outside the record, are not
adequately briefed, or were not r aised to the district court or postconviction court,
appellant’s pro se brief does not provide grounds for relief. See Roby v. State, 547 N.W.2d
354, 357 (Minn. 1996); State v. Butcher, 563 N.W.2d 776, 780 (Minn. App. 1997), review
denied (Minn. Aug. 5, 1997); Ganguli v. Univ. of Minn., 512 N.W.2d 918, 919 n.1 (Minn.
App. 1994) (stating that the court of appeals declines to addre ss allegations unsupported
by legal analysis or citation).
Affirmed.