A18-1579

This opinion will be unpublished and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
A18-1569
A18-1579

State of Minnesota,
Appellant (A18-1579),
Respondent (A18-1569),

vs.

William Cornell Walker,
Appellant (A18-1569),
Respondent (A18-1579).

Filed August 5, 2019
Affirmed
Cochran, Judge

Nobles County District Court
File No. 53-CR-17-1174

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

Kathleen A. Kusz, Nobles County Attorney, Worthington, Minnesota; and

Travis J. Smith, Special Assistan t County Attorney, Slayton, Mi nnesota (for State of
Minnesota)

Cathryn Middlebrook, Chief Appellate Public Defender, Rochelle R. Winn, Assistant
Public Defender, St. Paul, Minnesota (for William Cornell Walker)

Considered and decided by Florey, Presiding Judge; Worke, Judg e; and Cochran,
Judge.

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U N P U B L I S H E D O P I N I O N
COCHRAN, Judge
In these consolidated appeals, William Cornell Walker challenges his conviction for
third-degree criminal sexual conduct (CSC), and the state appeals from Walker’s sentence.
Walker argues that the prosecu tor committed misconduct constitu ting plain error by
eliciting testimony about Walker’s post- Miranda failure to tell officers that the sexual
contact was consensual. Walker also submitted a pro se supplemental brief claiming that
the state improperly introduced testimony and that the jury was not a jury of his peers. The
state argues that the district court abused its discretion by g ranting Walker’s motion for a
downward dispositional departure. Because we conclude that the prosecutor’s conduct did
not constitute plain error, that the district court did not abu se its discretion in granting the
departure, and that Walker’s pro se arguments are meritless, we affirm.
FACTS
The following evidence was presented at Walker’s jury trial on charges of
third-degree CSC. Walker is a semi-professional basketball player. In 2017, while Walker
was playing for a semi-professional team in Iowa, he met P.C. The two met through an
online dating app and became friends. In September 2017, Walke r moved into P.C.’s
apartment in Iowa. P.C. testified that they developed a “friends with benefits” relationship
during this time period. P.C. further testified that around Thanksgiving 2017, she decided
that they would be strictly friends, and their relationship would no longer be sexual.
In December 2017, Walker and P.C. traveled to Minnesota to cele brate Christmas
with P.C.’s family. They stayed with P.C.’s adult daughter. Walker and P.C. shared an air

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mattress in the living room. P.C . testified that while they we re lying on the air mattress,
Walker made sexual advances towards her. P.C. then got up and went to sleep on a love
seat. After Walker promised that he would leave her alone, P.C . agreed to come back to
the air mattress. P.C. testifie d that Walker then pinned her, pulled her sweatpants down,
and penetrated her anus with his p enis. P.C. testified that sh e tried to get away, asked
Walker to stop, and told him that he was hurting her, to which Walker responded, “I don’t
give a f--k.” P.C. then threatened to scream, and Walker released her.
P.C. did not initially go to police or mention the incident to her family because she
did not want to ruin Christmas for her family. On December 25, P.C. and Walker returned
to Iowa. The next day, P.C. went to work and sent Walker a message telling him to leave
her apartment. Walker emailed P.C. in response. He asked her to forgive him and wrote
that he did not remember much from the night of the incident because he had been drinking.
He also wrote:
“I do remember hearing you say no. I am not a rapist and I do
not hurt the people i have love for . . . . Theres no excuse f or
my actions I did what i did and I feel horrible about it bc i
betray and hurt (physically,mentally) you.”

Walker went on to write that he valued their friendship and stated that “[w]hat [he] did will
never happen again.” Walker then asked whether he could stay a t P.C.’s apartment for
another day or two.
P.C. went to the police station to ask an officer to go to her apartment to ensure that
Walker had left. A police officer asked P.C. about what was go ing on, and P.C. told him
that Walker had sexually assaulted her in Minnesota just before Christmas. P.C. also told

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the police officer about a previous incident in Iowa involving Walker earlier in December,
which she described as Walker forcing her to have sex. P.C. la ter described the incident
as Walker pestering or badgering her for sex to which she eventually consented.
The police officer then went to P.C.’s apartment, where he enco untered Walker.
The police officer told Walker that P.C. claimed he had sexuall y assaulted her, informed
him of his right to remain silent, and asked whether Walker would speak with him. Walker
agreed to speak to the police officer and confirmed that he sent the email to P.C. The police
officer then arrested Walker for the previous incident in Iowa. A few days later, Walker
was charged in Minnesota with thi rd-degree CSC for the incident that occurred in
Minnesota.
During Walker’s trial, the police officer testified in the state’s case-in-chief and as
a rebuttal witness after Walker testified. The police officer testified that on the drive to the
police station, after he arrested Walker, Walker told him that things got out of hand in
Minnesota and that he took things too far. The police officer also testified that Walker told
him that the incident earlier in December in Iowa was consensual but did not indicate that
the Minnesota incident was either consensual or a misunderstanding. Walker did not object
to this testimony at trial.
The jury found Walker guilty. Fo llowing the trial, the distric t court ordered a
presentence investigation (PSI) report. The PSI report showed that Walker, who was born
in 1984, was fined in connection with five different misdemeano r charges, including
shoplifting in 2016 and public intoxication in 2017, but had a criminal history score of
zero. The PSI report also noted that Walker has a good relatio nship with his parents and

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siblings and wanted to move back to Ohio to live with his broth e r . T h e P S I r e p o r t
recommended that Walker receive the presumptive 48-month executed sentence. Walker
also completed a psychosexual assessment.
Walker moved for a downward dispositional departure from the pr esumptive
sentence on the grounds that he is particularly amenable to pro bation. In addition to the
PSI report and the psychosexual assessment, the district court received letters of support
from Walker’s parents, his brother, and a registered nurse who knows Walker personally.
The district court granted the motion for a downward dispositional departure. The district
court stated that its reasons for departing included informatio n contained in the
psychosexual report, Walker’s fam ily support system, Walker’s a ge, Walker’s criminal
history score, Walker’s attitude i n court, and Walker’s coopera tion with the court
proceeding, including returning from a trip that the court allowed him to take to Ohio. The
district court imposed a 48-month sentence, stayed for ten years.
Following the sentencing hearing, Walker appealed his convictio n, and the state
appealed the district court’s decision to grant Walker’s departure motion.
D E C I S I O N
I. The prosecutor’s conduct did not constitute plain error.

Walker argues that the prosecutor committed misconduct constituting plain error by
eliciting testimony of his post-Miranda silence for substantive and impeachment purposes.
The state counters that, because Walker spoke to police about t he incident after the
Miranda warning, the prosecutor was entitled to present evidence of what Walker did and
did not say while speaking with police.

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Because Walker did not object to the evidence at trial, his cla im of prosecutorial
misconduct is reviewed under a modified plain-error standard. State v. Ramey, 721 N.W.2d
294, 302 (Minn. 2006). Under t he modified plain-error standard , the appellant bears the
burden to show that there was (1) an error; (2) that is plain. Id. An error that is plain is
one that is “clear or obvious at the time of appeal.” State v. Sanchez-Sanchez, 879 N.W.2d
324, 330 (Minn. 2016) (quotation omitted). “Typically, a ‘plain’ error contravenes case
law, a rule, or a standard of conduct.” State v. Peltier, 874 N.W.2d 792, 799 (Minn. 2016).
If an appellant establishes that the prosecutorial misconduct is error that is plain, the
burden shifts to the state to show that the misconduct did not affect the appellant’s
substantial rights. Ramey, 721 N.W.2d at 302. If the state fails to show that the misconduct
did not affect the appellant’s substantial rights, “the court t hen assesses whether the error
should be addressed to ensure fairness and the integrity of the judicial proceedings.” Id.
A. Use of post-Miranda silence for impeachment purposes.
Walker argues that the prosecutor violated the United States an d Minnesota
Constitutions by impeaching Walk er’s testimony with evidence th at he did not tell the
police officer that the incident in Minnesota was consensual. Both the United States and
Minnesota Constitutions guarantee the right of a person in a cr iminal matter to remain
silent. U.S. Const. amend. V; Minn. Const. art. I, § 7. In Doyle v. Ohio, the Supreme Court
held that impeaching a defendant on the basis of his silence following a Miranda warning
violates the defendant’s right to due process. 426 U.S. 610, 6 11, 96 S. Ct. 2240, 2241
(1976). But the Supreme Court clarified in Anderson v. Charles that when a defendant
makes a statement to police after receiving a Miranda warning, the defendant can be

7
questioned about later inconsistent testimony. 447 U.S. 404, 4 08, 100 S. Ct. 2180, 2182
(1980).
Relying on Anderson, the Minnesota Supreme Court held that “where the record
clearly shows that the defendant chose not to rely on his right to remain silent, but instead
made statements to police, the prosecution may show and comment upon the defendant’s
failure to relate to police crucial exculpatory statements recited by the defendant at trial.”
State v. Darveaux, 318 N.W.2d 44, 49-50 (Minn. 1982) (quotation omitted). In Darveaux,
the defendant, after receiving a Miranda warning, told police that he could not have
committed the crime in question because he had never been to th e location of the crime.
Id. at 49. The defendant did not mention an alibi when speaking with the police but testified
at trial that he had an alibi for the time of the crime. Id. The Minnesota Supreme Court
held that the prosecutor was entitled to show and comment on th e defendant’s failure to
communicate the alibi to police to impeach the defendant’s test imony. Id. at 50. The
supreme court noted that a defendant “has no right to remain silent selectively.” Id. at 49.
In this case, Walker voluntarily spoke to police following the Miranda warning,
stating that he “took things too far,” that “things got out of hand,” and that he was “really
drunk.” But during trial, Walker testified that the sexual con tact in Minnesota was
consensual. Walker has no right to remain selectively silent, and, under Darveaux, the
prosecutor was entitled to impeach Walker’s testimony by introd ucing evidence of
Walker’s failure to tell police that the sexual contact was consensual.

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B. Use of post-Miranda silence for substantive purposes.
During oral arguments, Walker argued that we should distinguish Darveaux because
that case involved evide nce of Darveaux’s post- Miranda silence only for impeachment
purposes. Walker did not make this argument in his brief or su ggest in his brief that we
should apply a different rule when evidence of post- Miranda silence is introduced in the
state’s case-in-chief rather than for impeachment purposes. Ma tters not addressed in an
appellant’s brief are not properly before this court. See State v. Yang , 774 N.W.2d 539,
558 (Minn. 2009) (holding that issues raised for the first time in an appellant’s reply brief
were deemed waived); State v. Butcher, 563 N.W.2d 776, 780 (Minn. App. 1997) (noting
that inadequately briefed issues are not properly before an appellate court), review denied
(Minn. Aug. 5, 1997). Because Walker did not brief this issue, it is not properly before
this court.
But even if we did consider this issue, Walker did not cite to any precedent, even
during oral arguments, establishing that Darveaux’s rule that a defendant does not have a
right to stay selectively silent is limited to cases involving impeachment. In the absence
of any such caselaw, we cannot say that the prosecutor’s conduct contravened “caselaw, a
rule, or a standard of conduct.” Ramey, 721 N.W.2d at 302. Accordingly, we cannot say
that the prosecutor’s conduct constituted error that is plain.
II. The district court did not abuse its discretion in granting Wal ker’s motion
for a downward dispositional departure.

Appellate courts afford a district court “great discretion in t he imposition of
sentences” and reverse only for an abuse of that discretion. State v. Soto, 855 N.W.2d 303,

9
307-08 (Minn. 2014) (quotation omitted). Appellate courts rarely hold that a district court
has abused its discretion in sentencing. Id. at 305. A district court may depart from the
presumptive sentence provided by the Minnesota Sentencing Guide lines when there are
“substantial and compelling” reasons justifying a departure. State v. Kindem, 313 N.W.2d
6, 7 (Minn. 1981); see also Minn. Sent. Guidelines 2.D.1 (20 16). A district court abuses
its discretion if its reasons for departing are “improper or in sufficient and there is
insufficient evidence of record to justify the departure.” Soto, 855 N.W.2d at 308
(quotations omitted). Although appellate courts “afford the trial court great discretion over
decisions to depart,” an appella te court’s deferential review “ is not a limitless grant of
power to the trial court.” Id. at 312 (quotations omitted).
“When the district court gives improper or inadequate reasons f o r a d o w n w a r d
departure, [a reviewing court] m ay scrutinize the record to det ermine whether alternative
grounds support the departure.” State v. Solberg , 882 N.W.2d 618, 623 (Minn. 2016)
(emphasis omitted). “[A] defendant’s particular amenability to individualized treatment in
a probationary setting will justif y departure in the form of a stay of execution of a
presumptively executed sentence.” State v. Trog , 323 N.W.2d 28, 31 (Minn. 1982).
“Numerous factors, including the defendant’s age, his prior rec ord, his remorse, his
cooperation, his attitude while in court, and the support of fr iends and/or family, are
relevant to a determination [of] whether a defendant is particu larly suitable to
individualized treatment in a probationary setting.” Id.
In this case, the district court granted Walker’s motion for a downward dispositional
departure based on his particul ar amenability to probation. In granting Walker’s motion,

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the district court discussed the factors that it considered, bu t did not explicitly state that it
found Walker to be “particularly amenable to probation.” In th e absence of an explicit
finding that Walker is particularly amenable to probation, we may scrutinize the record to
determine whether it supports such a finding. See Soto, 855 N.W.2d at 308-14 (scrutinizing
the record after determining that the district court erred by granting a downward departure
after finding that the defendant was “amenable to probation,” r ather than “particularly
amenable to probation”).
In this case, the district court noted Walker’s age, his criminal history score of zero,
and his attitude in court and cooperation with the court proceedings. The district court also
considered the psychosexual report and Walker’s strong family support system. These are
potentially relevant factors in determining whether an individu al is particularly amenable
to probation. See Soto, 855 N.W.2d at 310 (recognizing a variety of factors relevant to
determining whether a defendant is particularly amenable to probation); Trog, 323 N.W.2d
28, 31.
The state argues that several of these factors, particularly Wa lker’s age, Walker’s
criminal history, and the psyc hosexual report do not support a finding that Walker is
particularly amenable to probation. Although we agree that those factors may be of limited
w e i g h t u n d e r t h e s p e c i f i c c i r c u m s t a n c e s o f t h i s c a s e , t h e d i s t rict court did not base its
decision solely on those factors. Rather, the district court also considered Walker’s attitude
in court and cooperation with the court proceedings, as well as his strong family support.
The district court considered all of these factors in combinati on when determining that a
departure was warranted. We conclude that the record supports a finding that Walker is

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particularly amenable to probation and that the district court did not abuse its discretion in
granting Walker’s motion for a downward dispositional departure.
III. Walker’s pro se claims are without merit.

Walker’s pro se supplemental brief is without legal citation or reference to the
r e c o r d . “ A n a s s i g n m e n t o f e r r o r b a s e d o n m e r e a s s e r t i o n a n d n ot supported by any
argument or authorities . . . is waived and will not be conside red on appeal unless
prejudicial error is obvious on mere inspection.” State v. Andersen, 871 N.W.2d 910, 915
(Minn. 2015). We discern no prejudicial error on mere inspecti on. While we could end
our analysis here, we briefly address Walker’s arguments.
Walker first argues that the police officer should not have bee n allowed to testify
about the incident that took place in Iowa because it prejudice d the jury against him. But
the defense filed a motion in limine requesting that evidence a bout the Iowa incident be
admitted, arguing that the incid ent “put[] the alleged crime in the context of that
relationship.” During pretrial discussions, defense counsel ex plained that “this incident
t h a t h a p p e n e d i n I o w a i s a m a j o r p a r t o f t h e d e f e n s e c a s e . ” “ Under the invited error
doctrine, a party cannot assert on appeal an error that he invi ted,” unless he can establish
that the “error meets the plain error test.” State v. Carridine , 812 N.W.2d 130, 142
(Minn. 2012). Here, defense counsel made a strategic decision to introduce evidence of
the Iowa incident. We discern no error, much less plain error, in the district court’s decision
to allow the police officer to testify about the incident that took place in Iowa.
Walker also argues that the jury did not constitute a jury of his peers. Walker’s pro
se brief includes statements about the jurors’ ages and various comments that he alleges

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that the jurors made. But the jurors’ ages and alleged comments are not in the record. The
record on appeal consists of the documents, exhibits, and transcript from the district court
proceeding. Minn. R. Civ. App. P. 110.01. Appellate courts may not base their decisions
on matters outside the record on appeal. State v. Manley , 664 N.W.2d 275, 286
(Minn. 2003). Walker’s allegations about improper comments by the jurors are outside the
record on appeal and not properly before this court.
Affirmed.