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This opinion will be unpublished and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
A18-1985

State of Minnesota,
Respondent,

vs.

Ronald James Lipe,
Appellant.

Filed September 30, 2019
Affirmed in part and remanded
Rodenberg, Judge

Carver County District Court
File No. 10-CR-17-706

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

Mark Metz, Carver County Attorney, Christopher James Filipski, Assistant County
Attorney, Chaska, Minnesota (for respondent)

Christina Zauhar, Marsh J. Halberg, Halberg Criminal Defense, Bloomington, Minnesota
(for appellant)

Considered and decided by Sche llhas, Presiding Judge; Rodenberg, Judge; and
Kirk, Judge.


 Retired judge of the Minnesota Court of Appeals, serving by app ointment pursuant to
Minn. Const. art. VI, § 10.

2
U N P U B L I S H E D O P I N I O N
RODENBERG , Judge
In this direct appeal from his conviction for second-degree cr iminal sexual conduct,
appellant Ronald Lipe argues that the district court abused its discretion by denying his
pretrial continuance request, that the state committed a Brady violation, that the evidence
is insufficient to prove the requisite sexual intent, that the district court abused its discretion
by denying his motion to present c haracter evidence, and that t he prosecutor committed
misconduct during summation. We affirm appellant’s conviction based on the record as
constituted, and remand to the district court to reconsider app ellant’s continuance motion
using the proper legal standard and, if appropriate, to allow discovery concerning the late-
disclosed evidence of arguably si milar conduct involving the co mplainant. If additional
admissible evidence is discovered, the district court on remand shall also determine if a
new trial is required.
FACTS
In July 2017, seven-year old E.J.B. told her mother, J.B., that she “had a secret with”
appellant. When appellant babysat her, he would touch her vagi na. Following E.J.B.’s
disclosure of the touching to a counselor and a later report to child protection services, the
state charged appellant with eight counts of second-degree criminal sexual conduct under
Minn. Stat. § 609.343, subd. 1(h)(iii) (2016), (count one) and Minn. Stat. § 609.343, subd.
1(a) (2016), (counts two through eight). The state dismissed c ounts three through eight
before trial.

3
Appellant’s trial was set to begin June 12, 2018. On June 7, the prosecutor notified
appellant’s attorneys that E.J.B . had been involved in another touching incident. The
state’s email notified counsel that “during a phone conversation with [J.B.], she stated that
after this incident was reported and investigated, there was an incident where [E.J.B.] and
a same aged friend engaged in touching.” The email provided no further detail. The next
day, five calendar days and two business days before trial, app ellant requested that the
district court continue the tri al so that appellant could inves tigate the newly disclosed
touching incident.
The district court reserved ruling on the continuance motion until trial. On the day
trial was set to begin, the district court (a different judge than the one who had previously
presided in the case) heard argum ents on the continuance motion . Neither the state nor
appellant presented further inf ormation concerning the newly di sclosed touching at the
hearing. The district court denied the motion to continue the trial. It reasoned that, because
the other-touching evidence would be more prejudicial than probative, and would therefore
be inadmissible at trial, there was no reason for further investigation.
At trial, E.J.B. testified that when she was at appellant’s home, she would sit on the
couch with appellant and her brother, A.B., and the three would watch “Justin Time,” a
television program. She testified that while they were on the couch, appellant would
unbutton her pants and touch her vagina under her clothes. She explained that appellant
touched her vagina more than once and that he touched her “breast” once.1

1 The term “breast” was used both in the Complaint and in E.J.B.’s trail testimony, so we
use it here.

4
Appellant also testified at trial. He admitted that he touched E.J.B., but testified that
he touched E.J.B. because E.J.B. would grab his hand and force it down her pants.
Chaska Police Detective Personius also testified at trial. He testified that he
attempted to speak with A.B. before trial. He explained that h e was unable to get any
information from A.B. because A.B. would not speak with him and was sucking his thumb
during the entirety of the interaction. This unsuccessful atte mpt to speak with A.B. had
not been disclosed before trial.
The jury found appellant guilty o f both counts of second-degree criminal sexual
conduct. Appellant moved for a new trial, arguing that seven a spects of the prosecutor’s
summation were misconduct and that the state committed a Brady violation by failing to
disclose Detective Personius’s attempted interview with A.B.
The district court found two instances of prosecutorial misconduct, but determined
that there was no reasonable likelihood that the two instances of prosecutorial misconduct
substantially affected the verdict. It also found that the state’s argument in summation that
E.J.B. was “not acting out like this towards anyone else” was n ot misconduct because the
other-touching evidence disclosed in the email on June 7 had no t been admitted at trial.
Concerning the claimed Brady violation, the district court determined that the state should
have immediately disclosed its attempted interview with A.B., b ut also determined that
appellant was not prejudiced because the information was not exculpatory, impeaching, or
material, and the result of the trial would not have been diffe rent had the evidence been
disclosed before trial.

5
The district court sentenced appellant to a 90-month prison term on count one. This
appeal followed.
D E C I S I O N
Appellant argues (1) that the district court abused its discre tion by denying his
request for a continuance to cond uct additional discovery, (2) that the state committed a
Brady violation by not disclosing the attempted interview of A.B., (3 ) that the evidence
presented at trial is insufficient to prove that he acted with sexual or aggressive intent,
(4) that the district court erred in denying his motion to pres ent character evidence, and
(5) that the prosecutor committed misconduct during summation. Because the district court
denied appellant’s continuance motion using an improper legal s tandard which might, in
turn, require reconsideration of the possible prosecutorial mis conduct by referring to the
absence of evidence of similar incidents, we first analyze the issues identified by appellant
as issues (2), (3), and (4).
The state’s failure to disclose De tective Personius’s interacti o n w i t h A . B . d i d n o t
amount to a Brady violation.

The state must disclose evidence possessed by it that is favora ble to the defense.
Brady v. Maryland, 373 U.S. 83, 87-88, 83 S. Ct. 1194, 1196-97 (1963); see Minn. R. Crim.
P. 9.01, subd. 1(6). To establish a Brady violation, an appellant must show: (1) the
evidence at issue is favorable t o the accused, either because i t is exculpatory or it is
impeaching; (2) the evidence wa s willfully or inadvertently sup pressed by the state; and
(3) prejudice to the accused resulted. Pederson v. State , 692 N.W.2d 452, 460 (Minn.
2005) (stating that rule 9.01 embodies the first two components of the test for alleged Brady

6
violations). We review a district court’s denial of a motion for a new trial for an abuse of
discretion, State v. Green, 747 N.W.2d 912, 917 (Minn. 2008), and a new trial is warranted
upon a Brady violation only if there is a reasonable probability that, had the evidence been
disclosed to the defense, the result of the proceeding would have been different, Pederson,
692 N.W.2d at 460.
Appellant argues that the prosecution’s nondisclosure of Detect ive Personius’s
attempt to interview A.B. violated Brady. But Detective Personius’s attempted interview
with A.B. was unsuccessful and revealed no details about the facts of this case. Detective
Personius testified that he attempted to speak with A.B. about a week before trial. He
described A.B. as “tough to talk to” and testified that A.B. “r eally wouldn’t talk” and he
was sucking on his thumb. The d etective further testified that his interaction with A.B.
was brief, and described that A.B . “just kind of stared” while the detective attempted to
talk to him.
This attempted interaction was he lpful to neither the state nor appellant. The
attempted interview revealed no information that would have been favorable to appellant.
It therefore does not meet the first element needed to establish a Brady violation.
We agree with the district court that, although the state shoul d have disclosed the
attempted interview, on this record, it cannot be said either that the state failed to disclose
evidence favorable to the defense or that, if A.B.’s incapacity had been disclosed (a fact
already known to appellant), the result of the trial would have been different. The district
court did not err in denying appellant’s posttrial Brady motion.

7
The evidence presented at trial i s sufficient to prove that app ellant touched E.J.B.
with sexual intent.

Appellant does not deny that he touched E.J.B.’s genital area, but instead argues
that the state’s evidence is insufficient to prove that he did so with sexual intent.
Because the record contains no direct evidence of appellant’s sexual intent, we apply
the circumstantial-evidence standard of review. State v. Al-Naseer, 788 N.W.2d 469, 473
(Minn. 2010). When the state’s proof of an element consists on ly of circumstantial
evidence, we apply a two-step analysis to the sufficiency of the proof of that element, first
determining the circumstances proved by resolving all questions of fact in favor of the
verdict, and then determining whether a reasonable inference inconsistent with guilt can be
drawn from those circumstances. State v. Harris, 895 N.W.2d 592, 600 (Minn. 2017). In
applying this standard, we defer to the fact-finder’s credibility determinations. Id.
Both charging statutes required that the state prove that appellant engaged in sexual
contact. Minn. Stat. § 609.343, subd. 1(a), (h)(iii). The sta te was required to prove that
appellant engaged in the “inten tional touching by the actor of the complainant’s intimate
parts” and that he did so “with sexual or aggressive intent.” Minn. Stat. § 609.341, subd.
11(a)(i) (2016). “[A]n act is committed with sexual intent when the actor perceives himself
to be acting based on sexual desire or in pursuit of sexual gra tification.” State v. Austin,
788 N.W.2d 788, 792 (Minn. App. 2010), review denied (Minn. Dec. 14, 2010). A showing
of sexual intent does not require direct evidence of the defendant’s desires or gratification
because a subjective sexual intent typically must be inferred from the nature of the conduct

8
itself. Id.; see State v. Fardan , 773 N.W.2d 303, 321 (Minn. 2009) (stating that intent is
an inference drawn by the jury from the totality of the circumstances).
Here, the circumstances proved that are consistent with the jur y’s verdict include
that appellant unbuttoned E.J.B.’s pants and touched her vagina under her clothing, that
appellant touched E.J.B.’s breast with his hand, that appellant’s hand was moving when he
touched E.J.B.’s vagina and breast, that E.J.B. never asked app ellant to touch her vagina
or breast, and that E.J.B. did not grab appellant’s hand. Appellant testified at trial, but the
jury’s verdict reflects that it concluded beyond a reasonable doubt that appellant’s version
of the events was untrue. Our review of the circumstances prov ed readily leads to the
reasonable inference that appellant acted with sexual intent wh en he touched E.J.B.’s
vagina and breast.
The second step of our analysis requires that we determine whet her the
circumstances proved support any reasonable hypothesis inconsistent with guilt. State v.
Petersen, 910 N.W.2d 1, 7 (Minn. 2018). Appellant argues that the circumstances proved
are consistent with a rational h ypothesis that the touching was innocent. But appellant’s
alternative hypothesis relies on his own testimony, which was rejected by the jury.2

2 We have held in several cases, including a recent unpublished decision, that when
considering on appeal the circumstances proved at trial, the ci rcumstances proved do not
include the testimony of a defendant who has been found guilty by the finder of fact. See,
e.g., State v. Bradley , No. A17-1659, 2019 WL 3412314, at *6-7 (Minn. App. Jul. 29,
2019). Although unpublished opinions are not precedential under Minn. Stat. § 480A.08,
subd. 3 (2018), they may be of persuasive value. Dynamic Air, Inc. v. Bloch, 502 N.W.2d
796, 800-01 (Minn. App. 1993). To the extent that we consider a convicted defendant’s
testimony at all, we consider only that the finder of fact rejected the testimony inconsistent
with guilt. Put another way, th e circumstances proved in a cas e such as this include that

9
Because the jury concluded, beyo nd a reasonable doubt, that app ellant’s proposed
theory was not believable, and there is no reasonable inference from the facts proved that
is inconsistent with appellant’s guilt, the evidence is sufficient to support the jury’s verdict.
The district court acted within its discretion by denying appel lant’s pretrial motion
to introduce evidence of his character for truthfulness.

Evidentiary rulings lie within the district court’s discretion and “will not be reversed
absent a clear abuse of discretion,” and the appellant has the burden of showing that he was
prejudiced by such an abuse of discretion. State v. Amos , 658 N.W.2d 201, 203 (Minn.
2003). The general rule governi ng character evidence is that “ [e]vidence of a person’s
character or a trait of character is not admissible for the pur pose of proving action in
conformity therewith on a partic ular occasion.” Minn. R. Evid. 404(a). Under Minn. R.
Evid. 608(a), “[t]he credibility of a witness may be attacked o r supported by evidence in
the form of opinion or reputation, ” provided that the evidence refers to the witness’s
character for truthfulness or untruthfulness and the witness’s character for truthfulness has
been attacked by reputation or opinion evidence.
Before trial, the district court informed the parties that it w ould allow appellant to
present evidence of his character for truthfulness if the state attacked his character.
Appellant argues that the state’s cross-examination questions attacked his character
for truthfulness and he therefore should have been allowed to i ntroduce evidence on the
issue. The complained-of questioning included challenging whether appellant agreed that

the finder of fact concluded beyo nd all reasonable doubt that t he defendant’s testimony
was untrue.

10
“if he touched [E.J.B.’s] vagina with sexual intent, that would be a crime” and whether
“people that perpetrate sexual assaults on children don’t generally run around telling people
about it.” Appellant neither moved the district court to revisit its pretrial ruling nor objected
to the state’s line of questioning.3
These questions, asked during the state’s cross-examination of appellant, do not
attack appellant’s character for truthfulness. There is no err or. We are unaware of any
authority for the notion that cross-examination of this type amounts to a sufficient basis for
the admission of character evidence of truthfulness.
The district court acted within its discretion by denying appellant’s pretrial motion
to admit evidence of his truthful character.
The district court erred by employing an admissibility analysis when it denied
appellant’s motion for a trial continuance.

Appellant argues that the district court erred when it denied his continuance motion.
The district court conducted an admissibility analysis
We review a district court’s decision to grant or deny a motion for a continuance for
abuse of discretion. State v. Rainer, 411 N.W.2d 490, 495 (Minn. 1987). We consider the
circumstances that existed in the district court when it made its continuance decision. State
v. Turnipseed, 297 N.W.2d 308, 311 (Minn. 1980). We will not reverse a conviction unless
the appellant shows that the de nial of the requested continuanc e materially affected the
trial’s outcome. State v. Barnes, 713 N.W.2d 325, 333 (Minn. 2006).

3 Although the questions may have been argumentative, appellant did not object at trial and
does not argue on appeal that the state’s argumentative questio ns entitle him to appellate
relief.

11
Two business days before trial, on June 7, the state informed a ppellant’s attorneys
that “during a phone conversation with [J.B.], she stated that after this incident was reported
and investigated, there was an incident where [E.J.B.] and a same aged friend engaged in
touching.” The next day, appellant moved to continue the trial to conduct discovery
concerning the other-touching evidence or, in the alternative, for the court to examine the
material in camera under State v. Paradee, 403 N.W.2d 640, 642 (Minn. 1987).
The district court reserved ruling on the motion until trial an d heard argument on
the motion on the morning trial was set to begin. A different district court judge, who had
not previously presided in the case, heard the motion. 4 The district court acknowledged
that appellant was seeking time to conduct discovery, but engag ed in an admissibility
analysis under the rape-shield statute and rule in denying the motion.
The district court reasoned that, because a child of E.J.B.’s age could not effectively
consent to sexual contact, and because there was no evidence of fabrication or of semen,
the evidence would be inadmissible under Minn. R. Evid. 412 and Minn. Stat. § 609.347
(2016). The district court further reasoned that, because the other-touching evidence
occurred after the incident leading to the charges in this case, the evidence would be more
prejudicial than probative.
This admissibility analysis was error. The only information t hat the district court
and the parties had at the time of the motion was a one-sentence email stating that “[E.J.B.]

4 At oral argument, appellant’s counsel indicated that the chang e in district court judges
was attributed to the district court judge assigned to the case not having sufficient time to
hear the continuance motion before trial.

12
and a same-aged friend had engage d in touching” and that this o ther touching had been
“after this incident [involving appellant] was reported and inv e s t i g a t e d . ” B u t t h i s
information is insufficient to d etermine whether this evidence or additional evidence
resulting from further discovery would be precluded under the rape-shield statute and rule.
With such little information, the re is an inadequate basis on w hich to determine whether
E.J.B.’s other conduct was different than or similar to the con duct of E.J.B. that appellant
alleged had occurred.
Appellant was seeking a continuance for discovery or, in the al ternative, for in
camera review of the evidence. The rules of criminal procedure allow for broad discovery,
Minn. R. Crim. P. 9.01, and provide that all material and infor mation to which a party is
entitled “must be disclosed in time to afford counsel the opportunity to make beneficial use
of it.” Minn. R. Crim. P. 9.03, subd. 2(a).
The state argues that any error was harmless. Had the district court given appellant
the opportunity to further investigate the other-touching evide nce, or had it reviewed the
existing information in chambers—which would result in the evid ence becoming part of
the record available to us upon r eview—we would be able to eval uate the state’s
harmlessness argument. But because the record does not reveal of what the other touching
consisted, we are unable to assess the state’s argument.
Similarly, appellant argues that we should reverse and remand for a new trial. That,
too, would be improper on this record—on appeal, appellant must demonstrate both error
and prejudice. See State v. Tate , 682 N.W.2d 169, 175 (Minn. App. 2004) (stating that
“[o]rdinarily, a criminal defendant seeking a new trial bears the burden of proving not only

13
that error occurred but also that it was prejudicial”), review denied (Minn. Sept. 29, 2004).
Appellant has demonstrated the former but, because of the lack of information, he cannot
on this record demonstrate the latter.
Because the record is insufficient to determine whether appellant is entitled to a new
trial, we remand this issue to the district court. State v. Lynch, 392 N.W.2d 700, 706 (Minn.
App. 1986). On remand, the district court shall receive evidence and argument concerning
the other-touching incident and evaluate whether appellant shou l d h a v e b e e n g r a n t e d a
continuance to conduct further investigation and discovery. If the district court determines
that, using the proper standard , additional discovery should have been permitted, it must
then consider the parties’ arguments concerning whether appellant is entitled to a new trial.
Additionally, and as discussed be low, the district court shall reconsider appellant’s
prosecutorial-misconduct argumen ts in light of the disposition of the reconsidered
continuance request.
We do not by this disposition and remand suggest that the other-touching evidence
should have resulted in a conti nuance or that there will ultima tely be any other evidence
that would have been admissible at trial. But because the dist rict court used an improper
legal standard to analyze the continuance motion, resulting in the record being insufficient
for us to review the issue on appeal, remand is the only appropriate disposition.5

5 Appellant might have been better served by bringing this issue to the district court’s
attention via a petition for postconviction relief, but we take the appeal as it comes to us.
It would make little sense to require appellant to file a separate postconviction petition now
that the issue has been raised and argued on appeal. See Minn. R. Crim. P. 28.02, subd.
4(4) (permitting a stay-and-remand procedure if a postconvictio n petition is filed after a
direct appeal has been perfected).

14
The prosecutor committed misconduct during summation, and the district court, on
remand, should address whether, in light of the reconsidered continuance motion, the
misconduct had an effect on the jury’s verdict.

Finally, appellant alleges prosecutorial misconduct during summ ation. Because
appellant raised these arguments to the district court in a pos ttrial motion, we review the
alleged misconduct under the harmless-error standard of review. State v. Banks , 875
N.W.2d 338, 348 (Minn. App. 2016), review denied (Minn. Sept. 28, 2016). For objected-
to prosecutorial misconduct, we apply a two-tiered harmless-err or test, the application of
which varies based upon the severity of the misconduct.6 State v. McDaniel, 777 N.W.2d
739, 749 (Minn. 2010). Serious misconduct is harmless beyond a reasonable doubt if the
jury’s verdict was surely unattributable to the error, while le ss serious misconduct is
harmless unless the misconduct likely played a substantial part in influencing the jury. Id.
A prosecutor engages in misconduct when she violates clear or established standards
of conduct, i.e. rules, laws, orders by a district court, or cl ear commands in this state’s
caselaw. State v. McCray, 753 N.W.2d 746, 751 (Minn. 2008). When reviewing claims
of prosecutorial misconduct during summation, we consider the summation as a whole. Id.
Determination of the propriety o f a prosecutor’s summation is w ithin the district court’s
discretion. Id. at 751-52

6 The supreme court has questioned the viability of this two-tiered test but has not overruled
it. See State v. Carridine , 812 N.W.2d 130, 146 (Minn. 2 012) (noting unsettled state of
law, but declining to decide whether the two-tiered Caron standard should apply to cases
of objected-to prosecutorial misconduct); see also State v. Tayari-Garrett , 841 N.W.2d
644, 651 (Minn. App. 2014), review denied (Minn. Mar. 26, 2014).

15
Appellant moved the district court for a new trial on the basis that the prosecutor
committed misconduct seven times during summation. The distric t court thoroughly
addressed each claim of misconduct and determined that the pros ecutor committed
misconduct in two instances, but that the misconduct in those t wo instances did not
substantially influence the jury’s decision.
We first address appellant’s arguments concerning the misconduct allegations that
the district court found to be unsupported by the record.
Personal Opinion
During summation, the prosecutor argued that “[i]t’s impossible for both
[appellant’s] version and [E.J.B.’s] version of what happened a t [appellant’s] house to be
true” and that it is “not believable that [appellant] would not notice or be able to stop this
child before she not only got her hand over, but also under two separate layers of clothing
and onto her vaginal area.” The prosecutor continued that “[i]t’s also not rational to believe
that she grabbed [appellant]’s hand numerous times and forced o r tried to force it to her
vagina and that he didn’t tell anyone.” Appellant alleges that this amounted to improper
expression of personal opinion.
During summation, it is improper for a prosecutor to give her own opinion about the
defendant’s credibility. State v. Wright , 719 N.W.2d 910, 918 (Minn. 2006). But
prosecutors are permitted to analyze the evidence and argue that particular witnesses were
or were not credible. Id. at 918-19.
We agree with the district court that the prosecutor’s statements in this instance were
not misconduct. The prosecutor was not personally vouching for the credibility of a

16
witness. The prosecutor properly argued from the evidence that appellant’s testimony was
not credible.
Inflaming the Passions of the Jury; Evoking Sympathy for the Victim
Appellant asserts that the prosecutor inflamed the jury’s passi ons and improperly
evoked sympathy for the victim. The prosecutor stated that “[Appellant’s] testimony was
that he wanted to have a conversation with [J.B.] about [E.J.B.’s grabbing his hand to touch
her], so it seems more likely that it would be a conversation t hat you would want to have
p r i v a t e l y w i t h [ J . B . ] . ” A p p e l l a n t a l s o t a k e s i s s u e w i t h t h e p rosecutor’s surrebuttal
argument that “If you ask a child what did he touch it with? A seven-year-old child is
going to have no idea what it is that you’re talking about.”
It is improper for a prosecutor to evoke sympathy for a victim. State v. McNeil, 658
N.W.2d 228, 236 (Minn. App. 2003 ). Nor may a prosecutor “appea l to the passions and
prejudices of the jury or otherwise seek to distract the jury from its proper role of deciding
whether the state has met its burden of proof.” State v. Jackson , 714 N.W.2d 681, 694
(Minn. 2006).
The district court concluded that these statements appear to be rhetorical references
to general understanding and not specific references to E.J.B. It is not improper to ask the
jury to consider whether trial testimony makes sense in light of their collective experience
and common sense. The prosecutor’s statements in this instance were not misconduct.
Appellant also argues that the p rosecutor sought to evoke sympa thy for E.J.B. by
commenting, “This is a child that loves [appellant]. She has no reason to want to get him
in trouble, to want to say anything bad about him, to want anything bad to happen to him.”

17
The prosecutor also told the jury that, “you heard she is sad t hat she doesn’t get to see
[appellant].”
We agree with the district court’ s determination that the “clea r purpose for these
statements was to bolster the credibility of the victim’s testi mony.” The prosecutor was
arguing that the evidence revealed no motive for E.J.B. to lie. And the record reveals no
such motive. These statements were not misconduct.
Misstating the Law—Shifting the Burden
Prosecutors improperly shift the burden of proof by implying th at a defendant has
the burden of proving innocence, and a misstatement of this burden is highly improper and
is misconduct. McDaniel, 777 N.W.2d at 750. But a prosecutor’s comment on the lack of
evidence supporting a defense theory does not impermissibly shift the burden. Id.
Appellant first takes issue with the prosecutor’s statement that “[i]t’s in [appellant’s]
best interest to get up with this version now that there was no sexual or aggressive intent.
And there’s no corroboration of a ny of his statements.” Appell ant argues that these
statements imply that appellant is required to prove and corroborate the absence of sexual
intent in touching E.J.B.
Here, the prosecutor appears to have been commenting on appell ant’s “[i]nterest or
lack of interest in the outcome o f the case,” something Minnesota has long recognized as
proper, and which is part of the standard jury instruction conc erning the evaluation of
testimony. 10 Minnesota Practice, CRIMJIG 3.12 (2015). We also agree with the district
court that any resulting prejudice was remediated because appel lant’s counsel addressed

18
the argument in closing. Even if this fleeting argument in summation could be considered
improper, the verdict was surely unaffected by it.
Next, appellant challenges the propriety of the prosecutor’s c omment concerning
reasonable doubt, that “when you make those decisions, you never have all the information
or all the answers that you can possibly have. You base those decisions on what you know,
and what you feel, and what you think.” These statements conce rn the meaning of proof
beyond reasonable doubt. And the district court’s reasonable-doubt instruction was proper
and is unchallenged. This brief snippet of argument was not misconduct.
Appellant also argues that the prosecutor’s surrebuttal statem ent that “[i]f you
believe [E.J.B.], that is enough for proof beyond a reasonable doubt. That is the only
evidence that you need to convict [appellant]” and that, “[i]f you believe [E.J.B.], find
[appellant] guilty of both counts. ” These statements did not m isstate the law. The state
was arguing, and correctly so, that a conviction can rest on th e uncorroborated testimony
of a single witness. State v. Foreman, 680 N.W.2d 536, 539 (Minn. 2004).
Tailoring Testimony
Where there is no evidence that the defendant actually tailore d his testimony to fit
the evidence previously presented at trial, the prosecution cannot use a defendant’s exercise
of his right of confrontation to impeach the credibility of his testimony. State v. Mayhorn,
720 N.W.2d 776, 790 (Minn. 2006). “Without specific evidence o f tailoring, such
questions and comments by the pros ecution imply that all defend ants are less believable
simply as a result of exercising the right of confrontation.” Id. (quotation omitted).

19
During summation in this case, the prosecutor referred to appe l l a n t ’ s v e r s i o n o f
events as his “now version.” The prosecutor stated that appell ant’s testimony was “a
different version” and that he “got up on the stand and told [t he jury] after a year’s worth
of time when he’s had time to think about what his testimony would be, and what the best
story to get up and tell . . . would be.” The prosecutor continued, that when appellant “got
up and testified before [the jury], he knew what everyone had said. He had time to evaluate
everyone else’s—.”
The district court concluded, and we agree, that the argument that appellant changed
his story was not misconduct. Pointing out inconsistency betwe en prior statements and
trial testimony is entirely proper. As to the second portion, that appellant had heard and
evaluated the other trial testimony, the district court determi ned that the prosecutor’s
argument was improper and amounted to an unsupported assertion of tailoring We agree
with the district court that this was misconduct.
Belittling the Defense
A prosecutor may argue that there is no merit to a particular defense, but may not
belittle the defense, either in the abstract or by suggesting t hat the defense was raised
because it was the only defense that might succeed. State v. Waiters, 929 N.W.2d 895, 902
(Minn. 2019). Examples of such misconduct include labeling a d efense “soddy” or
suggesting that jurors would be “suckers” if they believed the defense. State v. Davis, 735
N.W.2d 674, 683 (Minn. 2007); State v. Johnson, 616 N.W.2d 720, 730 (Minn. 2000).
Appellant argues that the prose cutor’s argument—that appellant’ s “only option”
was to “tell [the jury] that he didn’t have sexual or aggressiv e intent”—was misconduct.

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Specifically, appellant takes issue with the prosecutor’s statement that appellant “can’t get
up here and tell [the jury] that it didn’t happen, because he a lready acknowledged and
admitted that it happened in the t ext messages. It’s in his be st interest to get up with this
version now that there was no sexual or aggressive intent.”
The district court found, and the trial transcript supports, t hat the prosecutor
suggested that appellant’s defense was raised because it was th e only defense that could
succeed. We again agree with the district court that these statements were misconduct.
The district court determined that these two instances of misconduct—belittling the
defense and suggesting in summa tion, without record support, th at appellant’s testimony
was tailored—surely had no effect o n t h e j u r y ’ s v e r d i c t . W e s ee no error in that
determination. The misconduct was only a small part of summation consisting of 14 pages
of trial transcript. Cf. State v. Matthews, 779 N.W.2d 543, 552 (Minn. 2010) (concluding
that the alleged misconduct did not permeate the entire argumen t because it was “limited
to a few lines in a 48–page closing argument”). Appellant had and availed himself of the
opportunity to rebut the statements, which were not severe or pervasive and surely had no
effect on the jury’s verdict. Cf. State v. Wren, 738 N.W.2d 378, 394 (Minn. 2007) (stating
that whether a defendant countered the misconduct is one factor relevant to the harmless-
error-beyond-a-reasonable-doubt standard).
Misstating the Evidence
While we agree with the district court’s conclusions concerning the above-discussed
misconduct, we cannot on this record affirm the district court’ s determination that the

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prosecutor’s argument in summation that E.J.B. was “not acting out like this towards
anyone else” was proper.
During summation, the prosecutor argued that E.J.B. was “not ac ting out like this
towards anyone else. She’s not grabbing other people’s hands and making them touch her
vagina, so why would she be doing this with [appellant] and no one else?”
It is true, as the district court concluded, that, at the time it was made, this was an
accurate statement of the record as constituted. But, as discu ssed above, the record is
incomplete and insufficient for us to review the question of whether appellant should have
been afforded more time to inves tigate reports of E.J.B.’s invo lvement in other touching
incidents. The state, having opposed appellant’s pretrial effo rts to conduct further
discovery concerning it, by this comment drew conspicuous attention to the absence of any
similar conduct. And the district court, applying an incorrect legal standard, had previously
denied appellant’s continuance request. Against that backgroun d, we cannot affirm the
propriety of this argument in summation. If there existed admissible evidence making the
prosecution’s summation on this p oint inaccurate, then the dist rict court must also
determine whether, in that light, this argument was improper and requires a new trial.
On remand, and after reconsideration of the continuance issue c onsistent with our
foregoing instructions, the district court shall reconsider whe ther this portion of the
prosecutor’s summation was misconduct and, if so, whether a new trial is warranted.
Affirmed in part and remanded.