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This opinion will be unpublished and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
A19-0726

State of Minnesota,
Respondent,

vs.

Joshua Daniel Luten,
Appellant.

Filed April 20, 2020
Affirmed
Bryan, Judge

Hennepin County District Court
File No. 27-CR-17-22361

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

Michael O. Freeman, Hennepin County Attorney, Mark V. Griffin, Senior Assistant
County Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook , Chief Appellate Public Defender, Roy G. Spurbeck, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Bratvold, Presiding Judge; Cochran, Judge; and Bryan,
Judge.
U N P U B L I S H E D O P I N I O N
BRYAN, Judge
Appellant argues that the prosecutor committed misconduct during closing
argument by m isstating the burden and standard of proof . We affirm b ecause the

2
prosecutor’s argument does not amount to plain error and because the prosecutor’s
argument did not affect appellant’s substantial rights.
FACTS
In June 2017, a ppellant began staying with his sister, T.H., and her 14-year-old
daughter, K.H.W., at their studio apartment in Minneapolis . Sometime between then and
August 15, 2017, appellant put his hand down K.H.W.’s pants wh ile she was sleeping .
K.H.W. moved his hand away and went back to sleep becaus e she thought she was
dreaming. On August 15, 2017, K.H.W. told T.H. about the incident. T.H. then confronted
appellant about the incident. Both K.H.W. and T.H. testified that appellant did not appear
shocked or surprised when confronted , and K.H.W. testified that appellant replied “your
uncle is sorry.” K.H.W. had no further contact with appellant. A few days later, K.H.W.
had a forensic interview at CornerHou se. During the interview , K.H.W. stated that
appellant touched her “inside” her “body” and that it still hurt on the “inside” the next day.
A medical doctor at CornerHouse also examined K.H.W. and testified that K.H.W. also
told her that appellant touched and caused pain to her genital area. The doctor stated that
she did not find any physical injury to K.H.W. Appellant did not testify at trial.
Before the commencement of trial and before closing arguments, the district cou rt
instructed the jury on the standard and burden of proof. For example, the district court
stated, “[t] he State must convince you by evidence beyond a reasonable doubt that the
defendant is guilty of the crime charged. The defendant has no obligation to prove
innocence.” Immediately before closing arguments, the district court stated, “[i]f you find
that each of these elements is proven beyond a reasonable doubt , the defendant is guilty.

3
If you find any element has not been proven beyond a reasonable doubt , the defendant is
not guilty.”
In her closing argument, the prosecutor stated:
Yesterday morning [ K.H.W.] took this witness stand and she
told you what happened on that summer night in 2017. It’s
been l8 months, almost everything about her life has changed
in the meantime , but she came here in front of dozens of
strangers, lawyers, a judge, an unfamiliar environment, with
the man who did this once again staring at her from across the
room, and she told you what she experienced. And if you
believed her, ladies and gentleme n, this case is proven. And
that is the best evidence you are ever going to have of an act
like this. The victim who experienced it telling you what she
experienced. If you believed her, he is guilty.

(Emphasis added) . Appellant did not object to this statement. The prosecutor then
reminded the jurors that appellant is presumed innocent, that it is the state’s burden to prove
each element of the charged offense, and that they , the jury, are the fact finders. The jury
found appellant guilty of first -degree criminal sexual conduct in violation of Minnesota
Statutes, section 609.342, subdivision 1(g) (2016).
D E C I S I O N
Appellant argues that the prosecutor committed misconduct during closing
argument. Specifically, ap pellant argues that the prosecutor misstated the burden and
standard of proof when the prosecutor told the jury that if they believed K.H.W., then
appellant was guilty. In addition, appellant argues that these comments suggested that the
jury could reach a guilty verdict based on a preponderance of the evidence. We conclude
that the prosecutor did not misstate the burden o r standard o f proof during the closing
argument.

4
In a criminal trial, misstatements about the burden or standard of proof are highly
improper. State v. Hunt , 615 N.W.2d 294, 302 ( Minn. 2000). Such prosecutorial
misconduct may deny a defendant’s right to a fair trial. See State v. Ferguson, 729 N.W.2d
604, 616 (Minn. App. 2007), review denied (Minn. June 19, 2007). “When reviewing
claims of prosecutorial misconduct during closing argument, we consider the argument as
a whole, rather than focusing on particular phrases or remarks that may be taken out of
context or given undue prominence.” State v. Jones, 753 N.W.2d 677, 691 ( Minn. 2008)
(quotations omitted). Because appellant failed to object to the prosecutor’s statement
during trial, we review this allegation of prosecutorial misconduct under a modified plain-
error standard. See State v. Ramey, 721 N.W.2d 294, 302 (Minn. 2006). Appellant bears
the burden of establishing an error occurred and that the error is “clear or obvious,” which
usually “means an error that violates or contradicts case law, a rule, or an applicable
standard of conduct.” State v. Bustos , 861 N.W.2d 655, 660 –61 (Minn. 2015); see also,
e.g., Ramey, 721 N.W.2d at 302. If the appellant demonstrates an error that is plain, then
the state has the burden to show that the misconduct did not affect the appellant’s
substantial rights. Ramey, 721 N.W.2d at 302.
I. Absence of Clear and Obvious Error
Appellant relies on the holding in State v. Strommen to establish that a clear and
obvious error was made during the prosecutor’s closing argument. 1 In State v. Strommen,

1 Appellant also relies on United States v. Vargas, 583 F.2d 380, 387 -88 (7th Cir.
1978) (reversing conviction for prosecutorial misconduct in closing argument) and United
States v. Stanfield, 521 F.2d 1122, 1126-27 (9th Cir. 1975). Appellant correctly observes
that neither case is binding on this court. See Minneapolis Grand, LLC v. Galt Funding

5
the prosecutor stated during closing: “ When we have difficult cases like this, sometimes
the only way to deal with [difficult cases] is just to weigh the story in each hand and decide
which one is most reasonable, which one makes the most sense.” 648 N.W.2d 681, 685
(Minn. 2002). The Minnesota Supreme C ourt held that the prosecutor in Strommen
misstated the state’s burden to prove each element of the crime charged beyond a
reasonable doubt. Id. at 690 . By asking the jury to weigh wh ich story was more
“reasonable,” the prosecutor in Strommen misstated the standard of proof , implying that
the jury could reach a guilty verdict based only on a preponderance of the evidence . See
id. at 685. In addition, these comments suggest that the defendant has the burden to prove
a “reasonable story” or to disprove the state’s “story.” See id. at 685.
The prosecutor, however, did not misstate the standard of proof or shift the burden
of proof to the defendant. In this case, unlike the prosecutor in Strommen, the prosecutor
did not suggest that the jury must convict if the st ate’s evidence is “reasonable,” or if the

LLC, 791 N.W.2d 549, 556 (Minn. App. 2010 ). We observe that even if Vargas carried
precedential weight, it would not apply to the prosecutor’s statements here . The Seventh
Circuit has since distinguished Vargas because the prosecutor’s argument there presented
a false biconditional statement, which is not the case in our record . See United States v.
Common, 818 F.3d 323, 332 (7th Cir. 2016) (distinguishing Vargas and United States v.
Cornett, 232 F.3d 570, 573-74 (7th Cir. 2000)). Therefore, we decline to apply Vargas.
We also conclude that t he conduct of the trial court in Stanfield renders that case
inapplicable to the facts before us. In Stanfield, the Ninth Circuit reversed the conviction
because the trial judge “undertook to deviate from the traditional trial format” and, over
appropriate objections, made opening statemen ts to the jury on behalf of the parties. 521
F.2d at 1126-27. In his “opening statements,” the trial judge placed the government and
the defendant on equal footing, instructing the jury that they will “be called upon . . . to
judge which is right and whi ch is wrong,” and to determine “what you will think in your
own mind is the truthful version.” Id. at 1125, n.1. No such conduct occurred here and the
appellant does not allege that the district court misstated the burden or standard of proof.
Therefore, we also decline to apply Stanfield.

6
jury weighs two competing theories and concludes “one makes the most sense.” The
prosecutor in this case, argued that the testimony of a single witness , K.H.W., was
sufficient to establish the elements of the offense : “And if you believed her , ladies and
gentlemen, this case is proven. And that is the best evidence you are ever going to have of
an act like this. The victim who experienced it telling you what she experienced. If you
believed her, he is guilty.” It would have been preferable for the prosecutor to have stated
“And if you believed her , beyond a reasonable doubt , ladies and gentlemen, this case is
proven.” Failure to insert the standard of proof at that point in the argument however, does
not result in error, given th at K.H.W.’s testimony constituted direct evidence of the
elements of the offense.2
In addition, any error was not plain because after making the statements in question,
the prosecutor r eminded the jurors that appellant is presumed innocent and that it is the
state’s burden to prove each element of the charged offense beyond a reasonable doubt.
The prosecutor’s comments did not suggest a reduced standard of proof or imply that
appellant had a burden of proof. We conclude that the closing argument does not constitute
prosecutorial misconduct. Therefore, appellant did not establish that a plain error occurred
in this case.
II. Appellant’s Substantial Rights
Because we conclude that the prosecutor’s statement did not constitute plain error,
we are not required to also analyze appellant’s argument that this statement affected his

2 A conviction for criminal sexual conduct can be based on the testimony of a single
credible witness. Minn. Stat. § 609.347, subd. 1 (2016).

7
substantial rights. Nevertheless, we have considered appellant’s argument and conclude
that even if a plain error occurred, it did not affect appellant’s substantial rights.
To determine the impact on appellant’s substanti al rights, we look to the
pervasiveness of the misconduct, the strength of th e evidence against appellant, and
whether a criminal defendant had the opportunity, or made efforts, to rebut the prosecutor’s
improper suggestions. State v. Hill, 801 N.W.2d 646, 654–55 (Minn. 2011). In this case,
application of each of the three factors supports a conclusion that the prosecutor’s conduct
did not affect appellant’s substantial rights.
First, the conduct was not pervasive. The prosecutor’s statements came at the
beginning of her closing argument, were brief, and occurred in only one short paragraph of
the state’s seventeen -page closing argument transcript. The prose cutor and the district
court both told the jurors that appellant had no burden to prove innocence and that it was
the state’s burden to prove each element of the charged offense beyond a reasonable doubt.
Second, t he state also presented strong evidence against appellant, including testimony
from K.H.W., T.H., a medical doctor, and the forensic interviewer. In addition, the state
presented evidence of appellant’s reaction when confronted with the accusations : he did
not appear shocked or sur prised and replied “your uncle is sorry.” Third, through his
counsel, appellant made the most of the opportunity afforded to him to rebut the
prosecutor’s arguments, telling the jury that the prosecutor was wrong and directing them
to the written jury instructions. Considering each of the Hill factors, we conclude that even
if the prosecutor committed error, and even if the error was plain, the plain error did not
affect appellant’s substantial rights.

8
III. Appellant’s pro se supplemental brief.
Finally, appellant raises four additional claims of error in his pro se supplemental
brief. As best as we can determine from that brief, he asserts that: (1) the jury selection
was prejudicial because of the “me too” movement and certain prospective juror s were
victims of sexual assault; (2) he received ineffective assistance of counsel because his
counsel did not adequately prepare for the expert witness testimony and did not object to
the prosecutor’s inappropriate tactics; (3) the prosecutor committed additional misconduct
by eliciting hearsay, implying appellant’s guilt through the police officer’s and the doctor’s
testimony, and violating the rules of discovery by coaching K.H.W. and T.H. without
notifying the defense; and (4) the judge improperly admi tted the CornerHouse video
because it confused the jury.
Each of these assertions lacks either an argument to support it or citations to legal
authority or both. As such, we deem these claims waived, and we will not consider them
unless “prejudicial error is obvious on mere inspection.” See State v. Palmer, 803 N.W.2d
727, 741 (Minn. 2011) (“Claims contained in a pro se supplemental brief with no argument
or citation to legal authority in support of the allegations are deemed waived”) (quotation
omitted); State v. Bartylla, 755 N.W.2d 8, 22 (Minn. 2008) (“We will not consider pro se
claims on appeal that are unsupported by either arguments or citations to legal authority”).
Affirmed.