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This opinion will be unpublished and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
A19-0110

State of Minnesota,
Respondent,

vs.

Hussen Hassan Hussen,
Appellant.

Filed November 18, 2019
Affirmed
Connolly, Judge

Olmsted County District Court
File No. 55-CR-17-3654

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

Mark A. Ostrem, Olmsted County Attorney, Jennifer D. Plante, Senior Assistant County
Attorney, Rochester, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Jenna Yauch-Erickson, 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
CONNOLLY, Judge
In a direct appeal from his conviction of fifth -degree criminal sexual conduct,
appellant argues that he is entitled to a new trial because the prosecutor committed plain
error in closing argument by ( 1) shifting the burden of proof, (2) misstating the law on
consent, and (3) violating the presumption of innocence. Because there was no plain error,
we affirm.
FACTS
In February 2018, following trial, a jury found appellant guilty of fifth -degree
criminal sexual conduct —nonconsensual s exual contact in violation of Minn. Stat.
§ 609.3451, subd. 1(1) (2016). According to trial testimony, i n February 2017, appellant
Hussen Hassan Hussen, then 25, and his 20-year-old victim, A.B., arranged to “hang out”
at A.B.’s home. A.B.’s grandmother was at the home, but not with the pair when the
incident occurred. A.B. testified that, as she was playing a game on her cell phone,
appellant kissed her without invitation or permission. She said she physically backed away,
but appellant then grabbed her breast area between layers of clothing. She tried to get away
from appellant by “pushing him and trying to back up,” but appellant continued to touch
her breast after she told him to stop. A.B. said that, despite her telling him to stop
repeatedly, appellant pulled her by her hair towards his genital area; she then backed away
and ran to her grandmother’s room. A.B.’s grandmother testified that A.B. was sobbing,
shaking, and upset after the incident. When asked if she remembered consenting to any
kind of contact, A.B. testified she “did not consent to any of it.”
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An investigator testified that appellant said he went to A.B.’s home “wanting
physical contact, wanting sex,” and, after A.B. stopped him , he told her, “I don’t want to
be here then, I don’t want to watch a movie, you know, I’m not here for that.” According
to the investigator, appellant admitted to kissing A.B. and touching her breast, but said both
acts were consensual. Appellant did not testify at trial.
Before closing arguments, the district court instructed the jury that: (1) a defendant
is presumed innocent of the charges made unless and until he has been proven guilty
beyond a reasonable doubt; (2) the burden of proving guilt beyon d a reasonable doubt is
on the state, and a defendant does not need to prove his innocence; (3) it is the judge’s duty
to give the jury the rules of law to use in finding a verdict; (4) “the attorneys may discuss
their understanding of the applicable law;” and (5) “if an attorney’s argument contains any
statement of the law that differs from the law that I give you, you are to disregard their
statement.” The district court also instructed the jury on each element of the crime ,
including defining consent as “a person’s words or overt actions that indicate a freely given
present agreement to perform a particular sexual act with the defendant.” For a third time,
the district court noted that, if th e jury finds each element proved beyond a reasonable
doubt, the defendant is guilty and, if not, the defendant is not guilty. Appellant did not
object to any jury instructions.
In closing argument, the prosecutor directed the jury to consider the judge’s
explanation of consent and repeated, “it means a person’s words or overt act ions that
indicate a freely given present agreement to perform a particular sexual act with the
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defendant.” While applying the definition of consent to the evidence , the prosecutor told
the jury:
[W]hen you read the definition of consent and you look at t he
evidence and you recall her testimony , the issue is not when
did she say no, did she say no only after he started touching her
breasts. That’s not the issue. The real issue is when did she
say yes, when did she overtly agree to sexual contact. And the
record is void of that. She never, through words or any overt
action, consented to this defendant touching her breasts that
day. There is no such thing as a presumption of consent until
you are rebuked. That’s not the law. And this defendant
touched her intimate parts without an overt present agreement
to do so. That’s what the evidence shows.

(Emphasis added). Appellant did not object to this portion of the closing argument. The
jury found appellant guilty of fifth-degree criminal sexual conduct.
D E C I S I O N
Because appellant did not object to the prosecutor’s discussion of consent at trial,
the alleged prosecutorial misconduct is reviewed under a modified plain -error standard.
State v. Ramey, 721 N.W.2d 294, 302 (Minn. 2006). Appellant bears the burden of showing
that the prosecutor committed an error that was plain. Id. A “plain” error is one that is
clear or obvious and typically contravenes caselaw, a rule, or a standard of conduct. Id. If
a defendant shows plain e rror, the burden shifts to the s tate to prove that there is no
reasonable likelihood that the alleged error affected the defendant’s substantial rights. Id.
We consider “various factors, including the pervasiveness of improper suggestions and the
strength of evidence against the defendant,” to determine whether a defendant’s substantial
rights were affected. State v. Parker , 901 N.W.2d 917, 926 (Minn. 2017) (quotations
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omitted). We also evaluate a defendant’s opportunity to rebut alleged misconduct in
closing arguments. State v. Peltier, 874 N.W.2d 792, 805-06 (Minn. 2016).
Appellant contends that two statements in the prosecutor’s closing argument, “The
issue is not when did she say no . . . the real issue is when did she say yes, when did she
overtly agree to sexual c ontact” and “There is no such thing as a presumption of consent
until you are rebuked. That’s not the law[,]” constituted plain error and affected appellant’s
substantial rights. In his closing argument, the prosecutor expla ined each element of the
charge, provided the proper definition of consent, and directed the jury to review the district
court’s instructions. As explained by the district court, t he elements of fifth -degree
criminal sexual conduct are (1) the defendant’s intentional touching of intimate parts or
clothing over the immediate area of intimate parts, (2) without consent, (3) with sexual or
aggressive intent, (4) in Minnesota. 10 Minnesota Practice, CRIMJIG 12.52 (2016); see
also Minn. Stat. § 609.3451, subd. 1 (1). Because the victim’s nonconsent is a major
element of fifth-degree criminal sexual conduct, the prosecutor spent significant time
discussing consent. See Minn. Stat. § 609.341, subd. 4(a) (2016) (definition of consent).
Appellant argues that the two statements were plain error because they shifted the burden
of proof, misstated the law, and violated the presumption of innocence. The state contends
that these statements were not plain error because they occurred in the context of explaining
the evidence and were a de minimis portion of the closing argument as a whole.
In closing argument, a prosecutor is allowed “considerable latitude and is not
required to make a colorless argument. ” State v. Williams, 586 N.W.2d 123, 127 (Minn.
1998). Specific remarks in a prosecutor’s closing argument may be “inartful” without
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constituting misconduct. State v. Fields, 730 N.W.2d 777, 786 (Minn. 2007). Ultimately,
it is within a prosecutor’s “right to present to the jury all legitimate arguments on the
evidence, to analyze and explain the evidence, and to present all proper inferences to be
drawn therefrom.” State v. Smith, 541 N.W.2d 584, 589 (Minn. 1996). Given this latitude,
a prosecutor’s closing argument may constitute plain erro r if the prosecutor contravened
caselaw, a rule, or a standard of conduct. Ramey, 721 N.W.2d at 302. In evaluating alleged
misconduct, we look to the closing argument as a whole, rather than evaluating specific
“phrases or remarks that may be taken out o f context or given undue prominence.” State
v. Johnson, 616 N.W.2d 720, 728 (Minn. 2000) (quotation and citations omitted).
1. Prosecutor Did Not Shift the Burden of Proof
Appellant claims the prosecutor shifted the burden of proof by telling the jury that
(1) “the issue is not when did [A.B.] say no . . . . The real issue is when did she say yes,
when did she overtly agree to sexual contact” and (2) “there is no . . . presumption of
consent until you are rebuked. That’s not the law.” Appellant’s theory is that these
statements told the jury that appellant had to prove A.B. affirmatively consented, rather
than that the state had to prove that A.B. did not consent. We disagree.
Appellant is correct that misstatements about the burd en of proof are highly
improper. See State v. Coleman , 373 N.W.2d 777, 782 (Minn. 1985) . The state, rather
than appellant, needed to prove lack of A.B.’s consent beyond a reasonable doubt. See
Finnegan v. State, 764 N.W.2d 856, 864 (Minn. App. 2009), aff’d, 784 N.W.2d 243 (Minn.
2010). But, the prosecutor’s statements do not clearly or obviously shift the burden of
proof; cases finding a shift in the burden are distinguishable. See, e.g., State v. Strommen,
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648 N.W.2d 681, 690 (Minn. 2002) (telling the jury to “weigh the story in each hand and
decide which one is most reasonable, whi ch one makes the most sense ”); State v. Jensen,
242 N.W.2d 109, 111 (Minn. 1976) (saying that the presumption of innocence is a shield
for the innocent but not a cloak for the guilty); State v. Trimble , 371 N.W.2d 921, 926
(Minn. App. 1985) (saying that the presumption of innocence is something that disappears
gradually and, after a large amount of evidence is presented, disa ppears completely) ,
review denied (Minn. Oct. 11, 1985). Moreover, statements regarding the lack of evidence
for the defense’s theory generally do not shift the burden of proof. State v. Gassler, 505
N.W.2d 62, 69 (Minn. 1993).
By framing the issue as whether A.B. “overtly agree[d] to sexual contact,” the
prosecutor highlighted the state’s evidence of nonconsent, which suggests that A.B. did not
overtly agree to sexual contact. Contrary to appellant’s assertion, the prosecutor never told
the jury that appellant had to prove A.B. consented.
Appellant further argues that the prosecutor told the jury “there was no
‘presumption’ that [the nonconsent] element was not satisfied” (emphasis in original). But,
appellant takes the prosecutor’s comment out of context and con flates the separate
concepts of presumption o f innocence and consent to sexual contact. The prosecutor’s
remarks were within his “right to present to the jury all legitimate arguments on the
evidence, to analyze and explain the evidence, and to present all proper inference to be
drawn therefrom.” Smith, 541 N.W.2d at 589. Therefore, the prosecutor did not clearly or
obviously shift the burden of proof.
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2. Prosecutor Did Not Misstate the Law
Appellant argues the prosecutor misstated the law because his “real issue” statement
removed the nonconsent element and “im properly told the jury that non -consent was not
an element the state had to prove.” For this argument, appellant relies on Strommen, 648
N.W.2d 681, 689-90 (holding that a prosecutor plainly erred when he clearly and directly
contradicted the statute at issue). But , Strommen is distinguishable: neither the
prosecutor’s “real issue” statement nor his “presumption of consent” statement clearly or
directly contradicts the law.
As the s tate notes, the “real issue” statement was a juxtaposition of the district
court’s definition of consent with the evidence that A.B. did not say “yes” and did not
consent. When the prosecutor’s closing argument is viewed as a whole, see Swanson, 707
N.W.2d at 656, it is clear that the prosecutor correctly outlined each element of the crime
and spent a significant amount of time on the consent element.
3. Prosecutor Did Not Violate the Presumption of Innocence
Appellant argues that the “presumption of consent” statement violate d the
presumption of innocence, claiming that the prosecutor t old “the jury to disregard the
presumption of innocence as to the non -consent element.” For this argument, a ppellant
relies on State v. DeVere, 261 N.W.2d 604, 606 (Minn. 1977) (noting that a prosecutor
“should try to adhere as closely as possible to the normal statement of presumption” when
talking about the presumption of innocence ). But, DeVere is distinguishable: the
prosecutor’s statement there referred to the presumption of innocence and did not warrant
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reversal, although it was considered “misleading.” Id. Here, the prosecutor’s statement
referring to the “presumption of consent” did not concern the presumption of innocence.
Appellant conflates two separate ideas based on their use of the shared word
“presumption.” The prosecutor’s point was that no legal standard allows an actor to assume
that a person consents to sexual contact unless and until that person rejects the actor. The
prosecutor even restated the “pres umption of consent” remark: “[Appellant] doesn’t have
the legal opportunity to make a pass at a woman until she has rebuked. That’s not the law.
It has to be a present overt agreement for sexual contact, and the record is void of that.”
These comments can be understood as a general statement about consent to sexual contact,
which is a matter entirely separate from the presumption-of-innocence standard in criminal
proceedings. While the prosecutor may have “inartfully” used a key word that typically
attaches to a legal standard (i.e. “presumption” attaches to “of innocence”), it was not a
clear or obvious error that contravened caselaw, a rule, or a standard of conduct. See Fields,
730 N.W.2d at 786 (“[P]rosecutor’s argument, though inartful, did not constitute
misconduct and instead made permissible arguments . . . and reasonable inferences based
on the evidence.”).
In conclusion, the prosecutor did not commit plain error in his closing argument by
shifting the burden of proof, misstating the law, or violating the presumption of innocence.
Affirmed.