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This opinion will be unpublished and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
A19-0520

State of Minnesota,
Respondent,

vs.

Abner Otwoma Momanyi,
Appellant.

Filed April 27, 2020
Affirmed in part and remanded
Smith, Tracy M., Judge

Hennepin County District Court
File No. 27-CR-17-22606

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

Michael O. Freeman, Hennepin County Attorney, Sean Patr ick Cahill, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Davi E. Axelson, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Hooten, Pr esiding Judge; Connolly, Judge; and Smith,
Tracy M., Judge.
U N P U B L I S H E D O P I N I O N
SMITH, TRACY M., Judge
On direct appeal of his conviction fo r second-degree criminal sexual conduct,
appellant Abner Otwoma Momanyi challenges his conviction, arguing that (1) the district

2
court abused its discretion by permitting test imony about a prior interaction between him
and the victim and (2) the prosecutor committed misconduct by inflaming the passions of
the jury in her closing argument. Momanyi also challenges his sentence, arguing that he is
entitled to a shorter sentence based on changes to the senten cing guidelines. We reject
appellant’s arguments challenging his conviction, but we agree that he may be entitled to
resentencing under the revised guidelines. We therefore affirm in part and remand.
FACTS
The facts are drawn from Momanyi’s criminal trial. On an afternoon in July 2017,
nine-year-old T.M., together with her mother and younger siblings, went to the home of
family friends to memorialize the friends’ relative who had recently died. About 30 people
visited the home throughout the day, including Momanyi, his wife, and their three children.
T.M. referred to Momanyi as her uncle, out of respect, but they were not related and had
only met twice previously.
At the home, T.M. went to the basement to play with the other children present,
while her mother went to the kitchen to help with the dishes. Momanyi was in the basement,
too. While in the basement, T.M. played with Momanyi’s daughter. Momanyi’s son was
also in the basement, but, according to T.M., the boy left after Momanyi said something to
him. Although Momanyi spoke in a language that T.M. did not understand, she assumed
that Momanyi told his son to leave. Momanyi spoke to his daughter and T.M. about T.M.
coming to their home for a sleepover.
T.M. then tried to go upstairs, but Momanyi physically stopped her. Momanyi then
told T.M., “Come sit on my lap.” T.M. testified that, though she did not want to do it, she

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agreed to sit on Momanyi’s lap to avoid being disrespectful to an elder. Once T.M. was on
his lap, Momanyi kissed her left cheek, licke d her earlobe, and touc hed her breast under
her shirt. T.M. “felt uncomfortable,” so she got off of Momanyi’s lap and went upstairs to
the bathroom to wipe off his saliva. After wiping off the sa liva, she sat in the bathroom
breathing in and out to calm herself.
T.M. tried to tell her mother what had happened, but her mother was speaking with
the hosts in the kitchen and told T.M. that she would talk with her later. 1 T.M. then went
outside to play with the other children. During this time, Momanyi had come upstairs from
the basement. Once T.M. had gone outside, Momanyi approached T.M.’s mother and
started asking her “weird questio ns.” Momanyi told T.M.’s moth er that he needed to tell
her something “really troubling” about her husband. As T.M. and her family were leaving
the event, Momanyi tried to arrange a meeting with her mother the next day, saying it was
about something urgent and that he did not wa nt to talk about it over the phone. T.M.’s
mother testified that, looking back at the incident, she be lieves Momanyi was trying to
distract her from T.M.
As T.M.’s mother was driving her family home, T.M. told her mother that she did
not like Momanyi and that he was “weird.” Her mother agreed that he was weird but then
asked T.M. why she thought that. T.M. responded that he has red eyes and keeps following
her. Her mother asked her if that was all, an d T.M. told her what had happened in the
basement. T.M.’s mother turn ed the car around and return ed to the home to confront

1 T.M. testified that she went to the bathroom first and then sought out her mother. T.M.’s
mother stated that T.M. went to the bathroom after speaking with her.

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Momanyi. Upon being confronted, Momanyi responded that T.M. was lying and that it was
a “setup.” Both T.M. and her mother slapped Momanyi. They then left, with T.M.’s mother
threatening to call the police.
At home, T.M.’s mother called the police, and T.M. and her mother went to the
police station to report what had happened . An employee of the child-advocacy center
CornerHouse also interviewed T.M. a few week s later. In the interview, T.M. recounted
the events in the basement with Momanyi.
The state charged Momanyi with second-degree criminal sexual conduct, and a jury
found Momanyi guilty. The district court sentenced Momanyi to 48 months’ imprisonment
and 10 years of conditional release but stayed execution of the sentence for five years.
This appeal follows.
D E C I S I O N
I. Spreigl Evidence
Momanyi argues that the district court co mmitted reversible error when, over his
objection, the district court permitted T.M. to testify abou t a prior incident in which
Momanyi kissed her and her friend on their necks.
Evidence of other crimes or acts is gove rned by Minn. R. Evid. 404(b). Such
evidence is commonly referred to as “ Spreigl evidence,” based on the supreme court’s
decision in State v. Spreigl, 139 N.W.2d 167 (Minn. 1965). State v. Kennedy, 585 N.W.2d
385, 389 (Minn. 1998). “A district court’s decision to admit Spreigl evidence is reviewed
for an abuse of discretion.” State v. Griffin , 887 N.W.2d 257, 261 (Minn. 2016). “A
defendant who claims the [distr ict] court erred in admitting evidence bears the burden of

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showing an error occurred an d any resulting prejudice.” Id. “Evidentiary errors warrant
reversal if there is any reasonable doubt th e result would have been different had the
evidence not been admitted.” State v. Grayson , 546 N.W.2d 731, 736 (Minn. 1996)
(quotation omitted).
Spreigl evidence may be admitted only in some cases. Minn. R. Evid. 404(b); State
v. Ness, 707 N.W.2d 676, 682, 685 (Minn. 2006). First, the evidence has to be relevant for
a valid purpose “such as proof of motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident” and “is not admissible to prove the character
of a person in order to show action in conf ormity therewith.” Minn . R. Evid. 404(b)(1).
Second, these conditions also have to be met:
(1) the state must give notice of its intent to admit the evidence;
(2) the state must clearly indi cate what the evidence will be
offered to prove; (3) there must be clear and convincing
evidence that the defendant participated in the prior act; (4) the
evidence must be relevant and material to the state’s case; and
(5) the probative value of the evidence must not be outweighed
by its potential prejudice to the defendant.

Ness, 707 N.W.2d at 686.
But even if the Spreigl evidence is not admissible under rule 404(b), a court may
permit inquiry into a prior act when a defe ndant “opens the door” on the subject. State v.
Guzman, 892 N.W.2d 801, 814-15 (Minn. 2017). “Opening the door occurs when one party
by introducing certain material creates in the opponent a right to respond with material that
would otherwise have been inadmissible.” State v. Valtierra, 718 N.W.2d 425, 436 (Minn.
2006) (quotation omitted). “The opening-the-door doctrine is essentially one of fairness
and common sense, based on th e proposition that one party should not have an unfair

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advantage and that the factfinder should not be presented with a mi sleading or distorted
representation of reality.” Id. (quotation omitted).
At trial, the prior-act evidence arose during T.M.’s testimony. During cross-
examination, the defense asked T.M. a bout whether she felt uncomfortable around
Momanyi in general, leading to this exchange:
Q: And so at any sort of touch, even if it were incidental or
friendly, you might just feel uncomfortable about it?
. . . .
A: No. But most things that he did, I don’t -- I don’t believe it
was rough or gentle. Like one time there was this occasion --
Q: I’ll just stop you there. That’s not responsive. But I’m just
asking about whether or not you felt uncomfortable with him
prior to that day.
T.M. responded that she had felt uncomfortab le around Momanyi before the day of the
incident. On redirect, the state then asked T.M. if Momanyi had ever touched her in a way
that made her feel uncomfortable. Over the defense’s objection, the district court permitted
T.M. to explain that she had been uncomf ortable on a previous occasion when Momanyi
had kissed the back of her neck and left saliva. T.M. also testified that Momanyi had kissed
another child’s neck on the same occasion an d that the two children had discussed how it
made them feel uncomfortable.
Momanyi argues that the state failed to meet the Spreigl conditions in order to admit
prior-act evidence. He argues that the state failed to provide notice that it intended to
introduce Spreigl evidence, even though the prosecutor’s questions implied that she was
aware of the information. But the state onl y asked about the prior act after Momanyi’s
counsel brought up T.M.’s general discomfort around Momanyi. Momanyi’s counsel’s line

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of questioning implied that T.M.’s discom fort was something she always felt around
Momanyi and that she would ha ve felt that way even if the contact between them was
innocent. The state used T.M.’s explanation of what happened to rebut this implication, as
it showed T.M. had a reasonable basis for being uncomfortable around Momanyi. The state
did not continue questioning on th e subject or raise the prior act again. We conclude that
the district court did not abuse its discretion in permitting the testimony on the prior act to
fairly respond to the defense’s cross-examin ation of T.M. after the defense opened the
door.
II. Prosecutorial Misconduct
Momanyi also argues that the prosecutor committed misconduct by trying to inflame
the passions of the jury. A prosecutor has “an affirmative obligation to ensure that a
defendant receives a fair trial, no matter how strong the evidence of guilt.” State v. Ramey,
721 N.W.2d 294, 300 (Minn. 2006) . Attorneys have considerable latitude in closing
arguments. State v. Smith, 541 N.W.2d 584, 589 (Minn. 1996). But a prosecutor’s closing
arguments “must be based on the evidence prod uced at trial, or the reasonable inferences
from that evidence.” State v. Porter , 526 N.W.2d 359, 363 (Minn. 1995). A prosecutor
must not “appeal to the passions of the jury.” State v. Mayhorn, 720 N.W.2d 776, 786-87
(Minn. 2006).
When credibility is a central issue, appe llate courts pay special attention to
statements that may inflam e or prejudice the jury. Porter, 526 N.W.2d at 363. In sexual
abuse cases in particular, prosecutors “must abide by the highest behavior.” State v. Rucker,
752 N.W.2d 538, 551 (Minn. App. 2008), review denied (Minn. Sept. 23, 2008) (quotation

8
omitted). But a prosecutor may still argue that certain witnesses are believable, so long as
they do not vouch for the witness. Id. at 552. A prosecutor has a right “to analyze the
evidence and vigorously argue that the state’s witnesses were worthy of credibility whereas
defendant and his witnesses were not.” State v. Googins , 255 N.W.2d 805, 806 (Minn.
1977).
When reviewing whether a prosecutor’s argument went too far, appellate courts
consider “the argument as a whole, rather than focusing on particular phrases or remarks.”
State v. Jones, 753 N.W.2d 677, 691 (Minn. 2008) (quotations omitted).
Momanyi highlights three parts of the prosecutor’s closing argument. First, without
objection, the prosecutor said:
[S]he doesn’t know what the defendant’s choice to violate her
means about him and means ab out how little value he placed
on her as a person. Children a nd vulnerable populations are
targets for precisely that r eason. Because if you don’t know
that something bad has just happened, then you don’t know to
tell anyone about it. And kids learn what is right and wrong
and what is good and what is bad by looking to the adults
around them; by trusting that they know what they’re doing
and that they’ll keep you safe. The defendant took that trust, he
used it, and he used it for his own perversion.
The prosecutor then said, over the defense’ s objection, that, when child-abuse victims
speak up,
[they enter a] world filled with adult concepts, ideas that they
don’t entirely understand. And in order to tell their stories, they
are forced upon a new language, right, so they’re putting their
vague, sort of, undefined concepts and feelings into words that
are given to them. And the whole drama plays out in grown-up
context, right, so the grownups always have the upper hand.

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And the prosecutor shortly thereafter said: “The deck is stacked against child abuse victims
from the very beginning, which is, of course, why they make the most perfect victims; that
is what their abusers count on in the first place.”
Momanyi argues that the prosecutor’s closing argument focused on themes present
in a “typical child criminal sexual conduct case” but not present here. He argues that there
is no evidence that T.M. did no t understand the adult concepts present in this case or that
the case involved a “predator-prey theme” invoked by the prosecutor’s statements.
Momanyi alleges misconduct to which the defense objected and failed to object. For
conduct that was objected-to and was, in fact , prosecutorial misconduct, appellate courts
apply a harmless-error test. State v. McDaniel, 777 N.W.2d 739, 749 (Minn. 2010).
For claims of prosecutorial misconduct to which the defense did not object,
appellate courts apply the “modified plain-error test.” State v. Carridine, 812 N.W.2d 130,
146 (Minn. 2012). To prevail under the modi fied plain-error test, an appellant must
establish that there is an erro r and that the error is plain. Ramey, 721 N.W.2d at 302. An
error is plain if it “contravenes case la w, a rule, or a standard of conduct.” Id. We will
reverse under the modified plain-error standard if the state fails to demonstrate that the
error did not affect the appellant’s substantial rights and we conclude that the error should
be addressed to ensure the fairness and integrity of judicial proceedings. State v. Parker,
901 N.W.2d 917, 926 (Minn. 2017).
Before applying either of the above standards, we must first determine whether the
prosecutor committed misconduct. Our review of the closing arguments as a whole reveals
that the quotes that Momanyi highlights do not provide the full context of the statements.

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As the state points out, the additional contex t shows that the prosecutor was emphasizing
T.M.’s credibility and how her youth explained some minor inconsistencies or T.M.’s
emphasis on certain details, not the general child-predator themes described by Momanyi.
For instance, the prosecutor’s objected-to comment stated that children have to testify in
an adult world about adult concepts where adults always have the upper hand. As the state
points out, the prosecutor explained soon afterwards how these statements applied here and
went to T.M.’s credibility: specifically, the prosecutor discussed the CornerHouse
employee’s testimony that children pick out “idiosyncratic details” and use their own
language to describe situations that may appear differently to adults, and how the employee
used those details to assess the veracity of T.M.’s story.
Momanyi argues that there was no evidence that T.M. did not understand some of
the adult concepts involved in the case. But the record shows otherwise. T.M. talked during
the CornerHouse interview about a “muscle” pressing into her back when she sat on
Momanyi’s lap. She described the licking of her cheek and ear as “nasty” and “disgusting,”
not wrong. She referred to her breasts as her “unmentionables.” So while there are
indications that T.M. understood aspects of what was going on and that it made her feel
uncomfortable, there is certainly evidence that she was dealing with adult concepts that she
did not fully understand.

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Momanyi analogizes to several cases as relevant examples of prosecutorial
misconduct.2 See, e.g., State v. Myrland, 681 N.W.2d 415, 421 (Minn. App. 2004) (holding
that a prosecutor may not “attempt to divert the jury from the facts of the case by making
broad policy arguments”), review denied (Minn. Aug. 25, 2004); State v. Duncan , 608
N.W.2d 551, 556 (Minn. App. 2000) (concluding that argumen t in child-abuse case that
“[i]t’s time in this country that we start believing kids” was misconduct because it urged
jurors to “return a guilty verdict . . . to send a message generally affirming the allegations
of children”), review denied (Minn. May 16, 2000); State v. Peterson , 530 N.W.2d 843,
848 (Minn. App. 1995) (holding that it was improper for the prosecutor to “coerce or urge”
jurors to convict the defendant to send a message to victims “that we will protect you”).
But the prosecutor here did not step over the lines described in these cases. She did
not make broad policy arguments or suggest th at the jury should find Momanyi guilty to
send a message. She did not claim that the ju ry should simply believe T.M. without
considering the evidence. Instea d, she raised themes of ch ild sexual-assault victims to
explain why this particular child’s testimony was credible. We therefore conclude that the
prosecutor did not inappropriat ely inflame the passions of the jury. And, because the
prosecutor did not commit misco nduct, we need not consider the remaining portions of
either the harmless-error test or the plain-error test.

2 Momanyi also analogizes to State v. Danquah, No. A18-1581, 2019 WL 3293790 (Minn.
App. 2019), review denied (Minn. Oct. 5, 2019). Danquah is an unpublished opinion and
thus not precedential. Dynamic Air, Inc. v. Bloch, 502 N.W.2d 796, 800 (Minn. App. 1993).

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III. Sentence
The district court sentenced Momanyi to the presumptive sentence of a stayed 48-
month term of imprisonment. This sentence was based on Momanyi’s criminal-history
score of one, which in turn was based on a custody-status point of one. But Momanyi argues
that he is entitled to the benefit of a recent revision to the Minnesota Sentencing Guidelines,
which would eliminate that custody-status point, and he requests resentencing. A party can
raise an issue with a criminal-history score even if the party did not raise the issue with the
district court. See State v. Strobel, 932 N.W.2d 303, 305-06 (Minn. 2019).
Under the sentencing guidelines at the time of his offense, a custody-status point
was assigned “if the offender is discharged from probation but commits an offense within
the initial period of probation pronounced by the court.” Minn. Sent. Guidelines 2.B.2.a.(4)
(2016). Momanyi states that his custody-stat us point was assigned under this provision
because the present offense occurred during an initial period of probation for a 2015
conviction, even though he had been discharged from probation before the offense date.
In 2019, the Minnesota Sentencing Guidelines Commission amended the sentencing
guidelines. The previous language about “initial period[s] of probation” no longer appears.
See Minn. Sent. Guidelines 2.B.2 (Supp. 2019). The parties agree that, under the amended
guidelines, offenders actively on probation receive a custody- status point but offenders
discharged from probation do not. Momanyi clai ms that he should r eceive the benefit of
this change, which would reduce his presumptive 48-month sentence to a 36-month one.
Momanyi argues that he is entitled to relief under the amelioration doctrine. Under
that doctrine, a defendant is entitled to the sentencing benefits of later amendments to the

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criminal law—including the sentencing guidelines—that mitigate punishment, so long as
final judgment has not been reached. State v. Kirby, 899 N.W.2d 485, 489, 491-94 (Minn.
2017). The amelioration doctrine applies to crimes co mmitted before an amendment’s
effective date if “(1) there is no statement by the Legislature that clearly establishes its
intent to abrogate the amelioration doctrine; (2) the amendment mitigates punishment; and
(3) final judgment has not been entere d when the amendment takes effect.” State v. Otto,
899 N.W.2d 501, 503 (Minn. 2017).
The state concedes that conditions (2) and (3) are met: the change to the sentencing
guidelines would mitigate Momanyi’s punishment by reducing his criminal-history score,
and Momanyi’s judgment is not final because his appeal is still pending. See Luna-Pliego
v. State, 904 N.W.2d 916, 919 (Minn. App. 2017). The parties only dispute condition (1):
whether the legislature clearly stated its intent to abrogate the amelioration doctrine in
connection with the 2019 amendments.
After the briefing in this case, we answer ed this question in a published decision
concerning the identical issue here—the assignment of a custody-status point to an offender
who had been discharged from probation. We concluded that there is no statement by the
legislature clearly establishing its intent to abrogate the amelioration doctrine and that the
amelioration doctrine may apply in this context. State v. Robinette , __ N.W.2d __, No.
A19-0679, slip op. (Minn. App. Apr. 20, 2020). We follow that decision here.
Thus, if Momanyi would have a lower criminal-history score under the 2019
modification to the sentencing guidelines, the doctrine of am elioration entitles him to be
resentenced with that lower sc ore. But, while the state app ears to concede that Momanyi

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would receive a more lenient sentence under the 2019 guidelines and there is some
reference in the record to Momanyi’s early discharge from probation, the record is not clear
to us that Momanyi had in fact been discha rged from probation at the time of his offense
here. We therefore remand the matter to the di strict court to determine whether Momanyi
had been discharged from probation at the time of his offense and, if so, to resentence him
in accordance with the amended sentencing guidelines.
Affirmed in part and remanded.