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This opinion will be unpublished and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
A18-1729

State of Minnesota,
Respondent,

vs.

Marquise Davonte Cox,
Appellant.

Filed December 16, 2019
Affirmed
Stauber, Judge*

Hennepin County District Court
File No. 27-CR-17-25789

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

Michael O. Freeman, Hennepin County Attorney, Patrick R. Lofton, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Richard Schmitz, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Worke, Presiding Judge; Connolly, Judge; and Stauber,
Judge.

* Retired judge of the Minnesota Court of Appeals, serving by appointment 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
STAUBER, Judge
Appellant Marquise Davonte Cox appeals his judgment of conviction for two counts
of first -degree criminal sexual conduct under Minn. Stat. § 609.342, subd. 1(a) (2014).
Appellant argues that the district court abused its discretion when it limited the defense’s
cross-examination of the state’s expert witness and that the prosecutor committed
misconduct during closing argument. Because the district court’s evidentiary ruling and
the prosecutor’s statements did not prejudice appellant, we affirm.
FACTS
Appellant resided with his girlfriend and her two children. In March 2016, appellant
began sexually abusing his girlfriend’s six -year-old daughter, A.B. The abuse lasted for
roughly 19 months, until A.B. disclosed the abuse to her school’s social worker. The social
worker reported the abuse to child protection services and the police , who scheduled a
CornerHouse interview. At CornerHouse, A.B. was interviewed by a forensic interviewer,
A.L. In the interview, A.B. described the sexual contact, both vaginal and anal penetration.
While drawing a picture of appellant’s “private parts,” A.B. drew a black dot in the same
area that appellant later testified he has a birthmark. A.B.’s physical exa m did not reveal
any physical injuries.
The state charged appellant with one count of first -degree criminal sexual conduct
(penetration) and later amended the complaint to add a second count of first -degree
criminal sexual conduct (contact).

3
At trial, the state elicited testimony from A.L. about the natur e of child-sex-abuse
reporting. Specifically, A.L. commented on how it may be difficult for a child to recall the
passage of time or retrieve memories, and discussed how a child’s communication is often
less organized than an adult’s. A.L. also described the variety of reasons a child may delay
reporting sexual abuse, why a child may disclose small pieces of information at a time, and
what a child’s demeanor may be like during disclosure.
During cross-examination of A.L., the state objected to defense coun sel’s question
about an article A.L. co-authored. Defense counsel read the statement it wished to ask A.L.
about to the court: “Although the importance of a child’s statement within the forensic
interview is irrefutable, investigators should not rely solely on forensic interviews to prove
or disprove allegations of child sexual abuse.” Defense counsel argued that questioning
about this statement is relevant because it supports the defense’s theory that A.B. was not
truthful and that the state could not corroborate A.B.’s testimony. The district court barred
the testimony. It reasoned that the testimony invaded the jury’s duty to determine whether
there was sufficient evidence to prove the offense because it would elicit an opinion about
what kind of evidence or how much evidence is needed to support a conviction.
The prosecutor’s closing argument began with commonly used statements b y the
Hennepin County Attorney’s Office about why children are the “perfect victim [s],” and
why appellant “preyed upon [A.B.].” The prosecutor argued, “[S]he’s telling the truth
about this abuse,” and ended with “[t]he defendant has lost his presumption of innocence;
find him guilty.” The jury convicted appellant of both counts. This appeal followed.

4
D E C I S I O N
I. Evidentiary ruling
“We will reverse evidentiary rulings only if the district court clearly abused its
discretion and the defendant was thereby prejudiced.” State v. Caine, 746 N.W.2d 339, 349
(Minn. 2008). But when an evidentiary ruling implicates a defendant’s right to present
evidence, this court determines whether the error was “harmless beyond a reasonable
doubt.” State v. Bustos, 861 N.W.2d 655, 666 (Minn. 2015). Appellant argues the district
court improperly barred him from asking A.L. “whether investigators should rely
exclusively on forensic interviews to prove or disprove child sex abuse allegations ,” and
from confronting A.L. about a statement in an article she co -authored discussing forensic
interviews. The state argues the evidence was properly excluded because it “would have
amounted to an expert opinion on the burden of proof.”
A.L. testified that she has worked at CornerHouse for about 25 years and has
conducted 3000 to 4000 forensic interviews. The defense’s inquiry was relevant to A.L.’s
knowledge and experience as a forensic interviewer. We see no reason why the testimony
should not have been admitted. The district court’s exclusion likely amounts to an abuse
of discretion, but given A.L.’s consistent testimony, we are persuaded that the error was
harmless beyond a reasonable doubt. See State v. Post, 512 N.W.2d 99, 102 (Minn. 1994)
(stating the harmless beyond a reasonable doubt standard is applied when an evidentiary
ruling concerns a defendant’s right to present evidence).
An error is harmless beyond a reasonable doubt if “a reasonable jury would have
reached the same verdict if the evidence had been admitted.” State v. Blom, 682 N.W.2d

5
578, 622 -23 (Minn. 2004) (quotation omitted) . The state presented eight witnesses,
evidence seized from appellant’s home, and A.B.’s videotaped CornerHouse interview. We
conclude that if A.L.’s testimony had been admitted, the jury would have reached the same
verdict.
II. Prosecutorial misconduct
Because appellant did not object during closing argument, this court reviews the
prosecutor’s statements for plain error. State v. Ramey , 721 N.W.2d 294, 297 -98 (Minn.
2006). Under this standard, the appellant must first establish an error that was plain. Id. at
302. The burden then shifts to the state to demonstrate that the error did not affect the
defendant’s substantial rights. Id. This court then determines whether the error should be
addressed to uphold “fairness and the integrity of the judicial proceedings.” Id.
This court consider s the “closing argument as a whole.” State v. Swanson , 707
N.W.2d 645, 656 (Minn. 2006). Prosecutors “must refrain from making statements that
will inflame the passions or prejudices of the jury.” State v. Duncan, 608 N.W.2d 551, 556
(Minn. App. 2000), review denied (Minn. May 16, 2000). A prosecutor may not “urge the
jury to protect society with its verdict.” State v. Hoppe, 641 N.W.2d 315, 320 (Minn. App.
2002), review denied (Minn. May 14, 2002). Sexual abuse cases require the “highest
behavior” by prosecutors because the cases “inescapably evoke an emotional re action.”
State v. Jahnke, 353 N.W.2d 606, 611 (Minn. App. 1984).
Appellant argues the prosecutor used scripted language not supported by the
evidence at trial, vouched for A.B.’s credibility, and improperly stated the appellant lost
his presumption of innocence.

6
This court, in unpublished opinions, has repeatedly determined that similar language
in closing arguments is plain error and we have cautioned the county attorney from using
the language.1 We conclude that the prosecutor’s statements amount to plain error because
the statements appeal to the jury’s passions by portraying appellant as a predator. However,
we conclude that the statements did not affect appellant’s substantial rights. The contested
language accounted for only a page or two of the prosecutor’s 32-page argument, and we
conclude that the state presented evidence of guilt that is beyond a reasonable doubt. Thus,
we conclude any error did not affect appellant’s substantial rights.
Appellant argues that the prosecutor’s closing argument misstated the presumption
of innocence. We do not agree with appellant’s contention because, when taken in context,
the prosecutor argued that the state had produced enough evidence of guilt to overcome the
presumption. See State v. Vue , 797 N.W.2d 5, 14 ( Minn. 2011) ( concluding the state’s
remark that “the [d]efendant has lost his presumption of innocence” was not plain error
because it was made in the context of arguing there was sufficient evidence of guilt ).
Additionally, the district court instructed t he jury that the closing arguments are not
evidence, that appellant is presumed innocent, and that the “presumption remains with
[appellant] unless or until [he] has been proven guilty beyond a reasonable doubt.”
Therefore, we affirm.
Affirmed.

1 See State v. Danquah , No. A18 -1581, 2019 WL 3293790, *4 -7 (Minn. App. July 22,
2019), review denied (Minn. Oct. 15, 2019); Garcia v. State , No. A18 -1907, 2019 WL
3545814, *2-4 (Minn. App. Aug. 5, 2019), review denied (Minn. Oct. 29, 2019); State v.
Ciriaco-Martinez, No. A18-1415, 2019 WL 2999783, *2 (Minn. App. July 1, 2019).