State of Minnesota, Respondent,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A20-0042

State of Minnesota,
Respondent,

vs.

Clifford Lamont Lea,
Appellant.

Filed April 26, 2021
Affirmed
Bratvold, Judge

Hennepin County District Court
File No. 27-CR-18-31411

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

Michael O. Freeman, Hennepin County Attorney, Linda M. Freyer, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Jennifer Workman Jesness,
Assistant Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Bjorkman, Presiding Judge; Segal, Chief Judge; and
Bratvold, Judge.
NONPRECEDENTIAL OPINION
BRATVOLD, Judge
In this direct appeal from a final judgment of conviction for first-degree cr iminal
sexual conduct, appellant claims the district court and prosecuting attorneys committed
prejudicial errors that entitle him to a new trial. Appellant raises three challenges: (1) the
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district court failed to advise the complainant about her Fifth Amendment privilege against
self-incrimination; (2) the district court abused its discretion by admitting Spreigl
evidence;1 and (3) prosecutorial misconduct affected the jury verdict . Because appellant
lacks standing to assert the complainant’s constitutional rights, the district court did not
abuse its discretion by admitting evidence of a prior assault b y appellant, and the
complained-of prosecutorial misconduct was either not misconduct or harmless error, we
affirm.
FACTS
Respondent State of Minnesota charged appellant Clifford Lamont Lea with
first-degree criminal sexual conduct (penetration by force or coercion) under Minn. Stat.
§ 609.342, subd. 1(e)(i) (2018). The following summarizes the evidence received during
the jury trial.
In July 2018, Lea met B.S. through an internet dating application. After exchanging
messages for a few days, they met in person and began dating. B.S. described their
relationship as “friends with benefits,” meaning that their relationship was sexual. At that
time, B.S. worked in Rochester for “Alternative to Traditional Incarceration of Citizens”
(ATTIC), as a case manager of parolees in transitional housing. B.S. understood that her
employer prohibited personal relationships between staff and ATTIC residents to avoid
conflicts of interest.

1 Evidence of other crimes and prior bad acts is “often referred to as Spreigl evidence after
the supreme court’s decision in State v. Spreigl.” State v. Babcock, 685 N.W.2d 36, 40
(Minn. App. 2004); see generally State v. Spreigl, 139 N.W.2d 167, 170-71 (Minn. 1965);
Minn. R. Evid. 404(b).
3
B.S. did not realize that, when they started dating, Lea was an ATTIC resident in
the Twin Cities. Once B.S. learned where Lea was living, she did not meet him at his
ATTIC residence. But a few weeks after they started dating, Lea moved to a new residence
in Minneapolis that a different company operated. Because of Lea’s move, B.S. believed
she no longer had a conflict of interest, and she began visiting Lea at his new residence.
B.S. testified that she and Lea engaged in consensual sexual relations, which she
described as sometimes “freaky” and involving “love bites.” B.S. also related two
incidents to describe her relationship with Lea. First, B.S. regularly saw her medical
providers because she was recovering from a stroke that happened before she met Lea. One
time, Lea picked her up from a medical appointment and then pressured her to have sex,
but she declined. Second, in October, B.S. slept with Lea at his place, but they did not have
sex. The next morning, Lea expected “some sort of sexual activity.” B.S. declined and Lea
became “quite physical” with her by hold ing her down and putting his hands near her
neck. B.S. believed that Lea “was going to . . . rape [her] or something.” Lea eventually
let her up and “laughed it off.” B.S. told Lea that type of behavior “wasn’t acceptable.”
Still, they continued their relationship because B.S. felt Lea “understood.” But they saw
each other less often.
On November 25, Lea sent a text message to B.S. and invited her to come over to
help him with “something.” B.S. hesitated but packed an overnight bag and went to Lea’s
house. When she arrived, B.S. told Lea that “sex wasn’t on the table” that night, in part,
because she was seeing someone new. They watched a football game in Lea’s bedroom,
and B.S. started setting up her computer to help him with a resume, because she understood
4
that was what he wanted. Lea said he no longer needed her help, so B.S. began packing up
her things and told him she was going home.
Lea stood up, told B.S., “no, you’re not, ” and instructed B.S. to take off her
clothes. B.S. testified that this was not uncommon, because there were “rules” when she
visited Lea. Lea often told B.S. to take her clothes off and remain naked in his
bedroom. B.S. also explained that Lea would not allow her to put on clothes when using
the bathroom, even though other residents shared the bathroom.
B.S. “just complied” and got into Lea’s bed because she did not want to upset him.
Lea also undressed, got into bed, and tried to begin intercourse. B.S. felt uneasy and told
him, “no.” Lea persisted and, ultimately, vaginally penetrated B.S. over her objection. B.S.
did not physically resist, but tried to leave. Lea told her to get back into bed. B.S. obeyed
and fell asleep. B.S. again tried to leave the next morning, but Lea refused to let her dress
or leave. B.S. tried to go to the bathroom, but Lea told her to get back into bed. They began
to argue.
As B.S. sat on the bed, Lea demanded anal or oral sex from her. Lea rolled B.S. onto
her stomach, placed his body on top of B.S., and started to choke her with his left
hand. B.S. fought back and banged on the wall; she cried and screamed “no” while trying
to keep her legs together. Lea forced her legs apart and pressed on her windpipe using his
forearm, making it difficult for her to breathe. B.S. resisted and Lea bit her on the shoulder
blade repeatedly. B.S. thought he was trying to “brand[]” her.
B.S. believed she might die, so she stopped resisting and put her hands up to show
that she would comply. Lea forcibly penetrated B.S. anally. Because she was in pain, B.S.
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asked to retrieve personal lubricant from her purse and Lea let her. Lea resumed and B.S.
believed that he was recording her with his cell-phone camera. B.S. testified that Lea
penetrated her for about 20 minutes. Lea called B.S. derogatory names and threatened her
family if she told anyone about what happened.
B.S. tried to leave yet again. Lea refused, but this time allowed her to use the
bathroom. B.S. finally left Lea’s residence after she convinced him that she had a medical
appointment. As B.S. collected her belongings, Lea laughed and said, “ submission looks
good on [you].” After B.S. left, Lea called her cell phone and sent her text messages. Lea
also sent B.S. a photograph of a map showing her relative’s home. B.S. interpreted this as
a threat.
B.S. went to the police station and gave a detailed report about the sexual assault
and then went to a hospital for a sexual-assault examination. Medical testimony established
B.S.’s injuries, which included abrasions to her genitalia, bruises across her body, and bite
marks on her back. Forensic testimony established that the DNA on swabs from B.S.’s
body matched Lea’s DNA profile.
On her way to the police station, B.S. spoke with her ATTIC supervisor, G.C.,
disclosed her relationship with Lea, and described the sexual assault. B.S. told G.C. that
she feared losing her job because Lea had once been an ATTIC resident. After their
conversation ended, G.C., who was in charge of Lea’s current residence through a different
employer, contacted Lea’s parole agent. An arrest warrant followed, and Lea was taken
into custody for violating parole. During police interviews, Lea admitted having sex with
B.S. on November 25 and 26, but maintained it was consensual.
6
Before trial, the state filed a Spreigl notice and moved to admit evidence of Lea’s
2016 domestic-assault-by-strangulation conviction, which involved another woman, P.R.
The district court overruled Lea’s objections and admitted the Spreigl evidence.
The state called 11 witnesses and offered about 60 exhibits during trial, most of
which is summarized above. The state’s evidence included testimony from P.R., a certified
copy of Lea’s prior conviction, and his petition to plead guilty to that offense. Lea exercised
his right to remain silent and called no witnesses. The jury found Lea guilty of first-degree
criminal sexual conduct.
Lea waived a jury trial on aggravated sentencing factors and the district court
granted, in part, the state’s motion for an upward departure from the sentencing guidelines
on a stipulated record. Based on two aggravating factors, the district court sentenced Lea
to 300 months in prison, with ten years of conditional release. Lea appeals.
DECISION
I. Lea lacks standing to challenge the district court’s decision not to advise B.S.
about her Fifth Amendment rights and privileges.

After opening statements and just before B.S. took the stand, Lea’s counsel urged
the district court to advise B.S. of her rights under the Fifth Amendment. Lea’s counsel
insisted that B.S.’s relationship with Lea while he was an ATTIC resident would likel y
have adverse consequences for B.S., both professionally and criminally, including liability
for third-degree criminal sexual conduct, see Minn. Stat. § 609.344, subd. 1(m) (2018).
The district court refused the request, reasoning that an advisory was unnecessary because
B.S. was aware of the possible adverse consequences. Lea argues that the district court
7
erred and that he is entitled to a new trial.
We conclude that Lea lacks standing to raise this issue. Both parties discussed
standing in the briefs submitted to this court. Standing is a prerequisite to jurisdiction.
Minn. Sands, LLC v. County of Winona, 940 N.W.2d 183, 192 n.9 (Minn. 2020), cert.
denied, 141 S. Ct. 1054 (2021). “Jurisdiction is fundamental to the exercise of judicial
power” and we review standing de novo. Glaze v. State, 909 N.W.2d 322, 325 (Minn.
2018). Parties in litigation must have standing at each stage of the case, including appeal.
Id. Thus, “the absence of a party’s standing ‘bars consideration of the claim by the court.’”
Id. (quoting In re Custody of D.T.R., 796 N.W.2d 509, 512 (Minn. 2011)).
“Generally, one does not have standing to assert the constitutional rights of a third
party.” In re Welfare of Children of J.R.B., 805 N.W.2d 895, 906 (Minn. App. 2011)
(quotation omitted), review denied (Minn. Jan. 6, 2012). The reason being: “constitutional
rights are personal and may not be asserted vicariously.” State v. Gray, 413 N.W.2d 107,
112 (Minn. 1987) (quoting Broadrick v. Okl ahoma, 413 U.S. 601, 610, 93 S. Ct. 2908,
2915 (1973)). Moreover, a constitutional “‘[p]rivilege is personal to those to whom it
belongs and is waived unless asserted by them.’” Martin v. State, 865 N.W.2d 282, 288
(Minn. 2015) (quoting Esser v. Brophey, 3 N.W.2d 3, 4 (Minn. 1942)). Thus, “[a] party
may not invoke the privilege of [a] witness.” Esser, 3 N.W.2d at 4.
The law is settled that Lea lacks standing to assert B.S.’s constitutional rights and
privileges: “[A] defendant does not have standing to challenge a district court’ s
determination that a witness has or does not have a Fifth Amendment privilege against
8
self-incrimination.” State v. Booker, 770 N.W.2d 161, 167 (Minn. App. 2009), review
denied (Minn. Oct. 20, 2009). Thus, we lack appellate jurisdiction to consider this issue.
II. The district court did not abuse its discretion by admitting Lea’s 2016 assault
of P.R. as Spreigl evidence.

Spreigl evidence is generally “not admissible to show that a defendant acted in
conformity with such behavior.” State v. Tomlinson, 938 N.W.2d 279, 286 (Minn. App.
2019), review denied (Minn. Feb. 26, 2020); see Spreigl, 139 N.W.2d 167. Spreigl
evidence may be admissible, however, for another purpose (e.g., to show proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or
accident). Minn. R. Evid. 404(b)(1).
The state sought to introduce evidence of Lea’s 2016 assault of P.R. under the
common scheme or plan exception to Minn. R. Evid. 404(b)(1). Lea argues on appeal that
the district court’s decision to admit the Spreigl evidence was prejudicial error. The state
argues that the district court did not abuse its discretion because the Spreigl evidence tends
to prove that Lea’s sexual conduct with B.S. was nonconsensual and that B.S. did not
fabricate the allegation, as Lea claimed during the trial.
We review a district court’s decision to admit Spreigl evidence for abuse of
discretion. State v. Griffin, 887 N.W.2d 257, 261 (Minn. 2016). To prevail on evidentiary
error, an appellant must show two things: the district court erred by admitting the evidence
and resulting prejudice. See, e.g., State v. Smith, 940 N.W.2d 497, 505-06 (Minn. 2020)
(requiring a showing of error and prejudice). Prejudice requires that “there is a reasonable
probability that the wrongfully admitted evidence significantly affected the verdict.”
9
Griffin, 887 N.W.2d at 262. “Prejudice does not mean the damage to the opponent’s case
that results from the legitimate probative force of the evidence; rather, it refers to the unfair
advantage that results from the capacity of the evidence to persuade by illegitimate means.”
State v. Welle, 870 N.W.2d 360, 366 (Minn. 2015) (quotations omitted).
We first examine the disputed evidence and then address Lea’s specific arguments.
A. The Spreigl evidence
In the summer of 2016, Lea met P.R. through the same dating application that he
later used to meet B.S. Their relationship soon led to consensual intercourse. In fall 2016,
P.R. ended things with Lea. Even so, P.R. went to see Lea one evening in early September
after Lea threatened to send a sexually explicit photograph of P.R. to her family unless she
came over. P.R. was pregnant with Lea’s child at the time.
Lea brought P.R. to his bedroom, threw her on the bed, and told her that he was
“going to have his friends come over and rape [her] all weekend.” Lea then pinned P.R.
down with his body while she screamed and cried for help. Lea used his hands and knees
to choke P.R., making it difficult for her to breathe. At some point, Lea tried to put his
penis in P.R.’s mouth but she refused. Lea ripped P.R.’s shirt off, pulled her pants down,
and tried to penetrate her anally, but P.R. resisted. Lea placed handcuffs on P.R.’s wrists
and tried to gag her while she continued to struggle. Lea eventually gave up and let P.R.
leave.
P.R. ran outside, told a neighbor about the assault, police responded, and P.R. told
them what happened. The state charged Lea with domestic assault by strangulation under
Minn. Stat. § 609.2247 (2016), along with another charge. Lea pleaded guilty to the
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strangulation charge, the state agreed to dismiss the other charge, and Lea received a
28-month prison sentence in December 2016. Lea was released from prison and placed on
parole in March 2018. He met B.S. about four months later.
B. The Spreigl factors

Minnesota courts use a five-factor test to determine whether Spreigl evidence is
admissible: (1) the state must give proper notice of the intent to admit the evidence; (2) the
state must indicate the purpose of the evidence by specifying what the evidence will prove;
(3) the state must provide clear and convincing evidence of the prior bad act that involved
the defendant; (4) the state must indicate how the evidence is relevant and material to the
current case; and (5) the probative value must outweigh the risk of unfair prejudice to the
defendant. See State v. Ness, 707 N.W.2d 676, 685- 86 (Minn. 2006); Minn. R. Evid.
404(b)(2). Lea does not challenge the state’s notice, but argues that the district court erred
because factors two through five weighed against admission.
Starting with the second factor, evidence of a prior bad act may be admitted to show
a common scheme or plan. Minn. R. Evid. 404(a), (b)(1). “Offenses that have a ‘marked
similarity’ to the charged offense can be used to show a common scheme or plan.”
Tomlinson, 938 N.W.2d at 286.
Lea argues that the Spreigl evidence shares only general similarities with the assault
on B.S. and the two events were not similar enough to satisfy the common scheme or plan
exception. He claims the two incidents were not close in time or location, and the 2016
assault involved an attempted sexual penetration, unlike the 2018 assault. Lea also points
11
out that B.S. alleged he bit her, which did not happen in 2016, and that B.S. did not allege
that he used handcuffs, as did P.R. in 2016.
The state counters that the two assault s have many similarities because, in both
instances, Lea: (1) became angry and aggressive with a romantic partner he met over the
internet; (2) assaulted both women in his bedroom; (3) used intimidation, threats, and
confinement; (4) used his size and strength to overpower both women; (5) strangled both
women; (6) engaged in, or attempted, anal penetration; and (7) later accused the women of
fabricating their allegations. The state also observes that, after setting aside the time Lea
was confined in prison, the assaults were “separated by mere months.”
We agree with the state on the second factor. These two assaults were similar
enough to fall under the common scheme or plan exception. Moreover, as the state asserts,
the Spreigl evidence corroborated B.S.’s testimony by showing Lea’s sexual conduct was
nonconsensual and that B.S. did not fabricate the allegations. And the two assaults were
close in time when we consider Lea’s confinement. See State v. Wermerskirchen,
497 N.W.2d 235, 242 n.3 (Minn. 1993) (“[T]he passage of a number of years may be
without real significance if it turns out that the defendant was in prison in the interval
between the prior offense and the current offense and was incapacitated from committing
crime.”).
On the third factor, Lea appears to concede that the state offered clear and
convincing evidence of the 2016 domestic assault. But he asserts that P.R. should not have
been allowed to testify about the attempted sexual assault because those facts were not part
of his guilty plea to domestic assault. “[A] defendant’s participation in a Spreigl incident
12
may be considered clear and convincing when it is highly probable that the facts sought to
be admitted are truthful.” Ness, 707 N.W.2d at 686. This standard does not demand that
the state corroborate every detail of the Spreigl evidence as a precondition to its admission.
State v. Kennedy, 585 N.W.2d 385, 390 (Minn. 1998) (“[W]e see no reason why
corroboration of the Spreigl victim’s testimony is necessary as a matter of law to meet the
clear and convincing standard.”).
Together with P.R.’s testimony, the state introduced clear and convincing evidence
of the 2016 domestic assault: Lea’s petition to plead guilty to the 2016 assault and a
certified copy of his conviction. But simply because Lea did not plead guilty to the
attempted sexual assault does not mean P.R.’s testimon y did not satisfy the clear and
convincing standard. The state offered to present additional witnesses to corroborate P.R.’s
testimony, including Lea’s neighbors and police officers who would verify P.R.’s
allegations and that they observed marks on her wrists consistent with handcuffs. The
district court found that P.R.’s proffered testimony was clear and convincing evidence of
the attempted 2016 sexual assault. The district court also stated that “depending on how
vigorously [P.R.’s] account is challenged,” additional witnesses might be needed to
corroborate her testimony. There was no objection during P.R.’s testimon y and the need
for other witnesses was never revisited. We see no error in the district court’s determination
that P.R.’s testimony provided clear and convincing evidence of the 2016 sexual assault.
See, e.g., Kennedy, 585 N.W.2d at 390 (explaining Spreigl witness is not required to testify
at a hearing before the trial court may exercise its broad discretion and rule on admissibility
of Spreigl evidence).
13
On the fourth factor, Lea argues that the 2016 assault was irrelevant to whether B.S.
consented to his sexual conduct in 2018. He accordingly insists that the real purpose of the
evidence was to “persuade the jury by illegitimate means” and “show that [he] acted in
conformity with a bad character trait.” His argument, however, mischaracterizes the record
and overlooks important details about the disputed evidence that enhances its probative
value. Lea claimed during trial that B.S. fabricated the assault and her conflict of interest
gave her a motive to file a false report against him. To be sure, Lea challenged B.S.’s
credibility during cross-examination.
Caselaw recognizes that Spreigl evidence may be relevant to rebut a charge of
fabrication. “[W]hen a defendant contends that the conduct on which the charge was based
was a fabrication, Spreigl evidence is admissible to rebut that contention as long as the
district court is satisfied that the evidence is sufficiently relevant to the charged crime.”
State v. Clark, 738 N.W.2d 316, 346 (Minn. 2007) (quotation omitted).
While the 2016 assault on P.R. did not directly prove whether B.S. consented to
Lea’s sexual conduct in 2018, it was circumstantial evidence that corroborated B.S.’s
testimony about Lea’s behavior. And much like our discussion of factor two, the 2016
assault was probative to evaluate Lea’s pattern of claiming fabrication when faced with
similar criminal allegations.
On the fifth factor, Lea argues that “[t]he prejudicial effect of the Spreigl evidence
greatly outweighed its probative value.” He claims that the state did not “need” the
evidence, which posed a serious risk of misleading the jury, and the evidence was unduly
prejudicial because it involved an assault on a pregnant woman. “[T]he need for the
14
evidence is among a number of factors, perhaps even the major factor, to be considered in
deciding whether the danger of unfair prejudice outweighs the probative value of other-acts
evidence.” Ness, 707 N.W.2d at 690.
We conclude that the state needed the evidence of the 2016 assault. Lea’s defense
suggested to the jury that B.S. knowingly engaged in an improper relationship with Lea
and fabricated the assault to save herself from possible adverse consequences. Lea sought
to undermine B.S.’s credibility, which underscores the state’s need for the Sprei gl
evidence. See State v. Scruggs, 822 N.W.2d 631, 644 (Minn. 2012) (considering the state’s
need for Spreigl evidence “to strengthen weak or inadequate proof in the case” (quotation
omitted)); Wermerskirchen, 497 N.W.2d at 241-42 (ratifying use of Spreigl evidence to
counter a defendant’s theory of fabrication). Given the probative value of the Spreigl
evidence to rebut specific arguments made by Lea, we conclude that evidence of the 2016
assault did not give the state an unfair advantage or persuade the jury by illegitimate means.
We are also satisfied that the district court’s cautionary instructions appropriately
mitigated the risk of the jury being misled by the Spreigl evidence. The district court gave
two standard instructions on how to properly consider evidence of a defendant’s prior bad
act so the jury could evaluate the pending charge and refrain from improperly finding Lea
guilty because of his past conduct. See 10 Minnesota Practice, CRIMJIG 2.01, 3.16 (2020).
We assume that jurors understand and follow the instructions provided to them, and see no
15
reason to conclude that this jury did not do so.2 See State v. Campbell, 861 N.W.2d 95, 103
(Minn. 2015).
Even so, we agree with Lea that P.R.’s testimony about being pregnant at the time
of the 2016 assault had no probative value. 3 We conclude, however, that any prejudice
stemming from P.R.’s testimony about her pregnancy was harmless. See Griffin,
887 N.W.2d at 262. P.R. briefly mentioned being pregnant, the state did not emphasize it,
and the district court gave limiting instructions to the jury on how to properly consider
P.R.’s testimony. Moreover, regardless of the Spreigl evidence, the state presented a strong
case through ten other witnesses during a two-week long trial.
In sum, the district court carefully applied the five-factor test before admitting the
Spreigl evidence and we discern no abuse of discretion.

2 We are not persuaded by Lea’s argument that the jury did not understand how to properly
consider the Spreigl evidence simply because one juror asked, “Could you repeat what you
told us before [P.R.] came up? You read something. I’m not sure I understood that.” The
district court repeated the instruction near the end of trial. At best, this shows that one
particular juror did not fully understand the instruction when it was read the first time. But
nothing in the record suggests that any other juror misunderstood the first instruction, or
that the second instruction confused any of the jurors.

3 It is not clear whether Lea objected to P.R.’s testimony about being pregnant or whether
we should review this evidence for plain error. While the state included P.R.’s pregnancy
in its Spreigl notice, the state did not include this fact in its motion to admit the 2016 assault
as Spreigl evidence. Lea’s attorney did not specifically mention the potential prejudice of
P.R’s pregnancy when opposing admission of the Spreigl evidence, but generally argued
the evidence was more prejudicial than probative. Furthermore, Lea’s attorney did not
object during P.R.’s testimony. Because we find any error harmless, we need not decide
whether Lea preserved this error.
16
III. The prosecution did not engage in reversible misconduct.

The standard of review for claims of prosecutorial misconduct depends on whether
the defendant objected during trial. See State v. Nissalke, 801 N.W.2d 82, 103-05 (Minn.
2011). If the defendant objected, we apply a two-tiered harmless-error test that
differentiates between “less serious” and “unusually serious” instances of misconduct. Id.
at 105. “Less serious” misconduct is reversible if it “played a substantial part in influencing
the jury to convict.” Id. (quotation omitted). “Unusually serious” misconduct is reversible
unless its admission was “harmless beyond a reasonable doubt.” Id. (quotations omitted).
Misconduct is harmless beyond a reasonable doubt when the jury’s verdict was “surely
unattributable to the error.” Id. at 106 (quotation omitted).
If the defendant did not object to the prosecutorial misconduct, a modified
plain-error test applies. Id. at 103. “Under this test, the defendant has the burden of proving
(1) that an error was made and (2) that it was plain.” Id. If the defendant meets this burden,
the burden shifts, and the state must show “that the error did not affect the defendant’s
substantial rights.” Id.; see also State v. Ramey, 721 N.W.2d 294, 302 (Minn. 2006).
Lea claims the prosecuting attorneys engaged in five instances of misconduct. Lea
objected to the first four instances, so we apply the two-tiered harmless-error test. But we
review his fifth misconduct claim under the modified plain-error test because Lea did not
object to that instance.
A. Misstating the burden of proof
Lea contends that the prosecuting attorneys misstated the burden of proof during
opening statements and closing arguments. “A prosecutor’s misstatement of the burden of
17
proof is highly improper and constitutes misconduct.” State v. Martin, 773 N.W.2d 89, 105
(Minn. 2009) (quotation omitted). A prosecuting attorney improperly shifts the burden of
proof by implying “that a defendant has the burden of proving his innocence.” Nissalke,
801 N.W.2d at 106 (quotation omitted). For instance, a prosecuting attorney who
comments on the defendant’s failure to call a witness implicitly suggests to the jury that
the defendant neglected to prove his innocence. See State v. Mayhorn, 720 N.W.2d 776,
787 (Minn. 2006).
1. Opening statements
During opening statements, the prosecuting attorney stated that B.S. believed Lea
had recorded her with his cell phone during the sexual assault: “[B.S. will] testify that,
when she’s on the ground, crying, . . . she looks up, and he’s recording her with his
camera—with his cell phone.” Then, while discussing the delay that occurred after B.S.
reported the assault and before the police investigation of the assault, the prosecuting
attorney stated:
You will hear and learn about a time delay between when
[B.S.] reported this to [police] and when an investigator was
assigned. And that time delay will be explained by [B.S.]
calling and saying, is anyone going to do anything? Does
anyone care about my case? By the time [an investigator] was
assigned, you’ll learn that a considerable amount of time had
passed—over a week. In that time, [ B.S.] was saying, can
somebody look into this? I want—I want someone to look at
[Lea’s] phones. He was recording me.

Lea’s counsel objected, a bench conference was held off the record, and Lea’s phone was
not mentioned again during the prosecuting attorney’s opening statement. Lea claims that
the district court “clearly ruled in pre-trial motions that the state was not allowed” to
18
mention his phone because the state was unable to produce the phone, which was missing.
Lea insists the prosecuting attorney’s remarks about his phone “shifted the burden of proof
by implying that [Lea] was responsible for the missing phone[].” For two reasons, we are
unpersuaded.
First, the district court did not prohibit the state from mentioning the missing phone
before opening statements. The district court ruled after opening statements and directed
the state not to suggest that Lea orchestrated the phone’s disappearance. Second, the
prosecuting attorney ’s comment did not shift the burden of proof to Lea. Instead, the
prosecuting attorney addressed the reason for the delay in the police investigation of B.S.’s
allegations.
We note, however, that the better practice is to obtain a ruling before using
challenged evidence in opening statements. See State v. Smallwood, 594 N.W.2d 144, 150
(Minn. 1999) (explaining, “if the evidence sought to be admitted is questionable, a
prosecutor should obtain a ruling from the trial court before commenting on the evidence”);
see also State v. Milton, 821 N.W.2d 789, 804 (Minn. 2012) (warning prosecuting attorneys
not to refer to evidence without good-faith basis that the evidence is admissible). Because
the prosecuting attorney ’s opening statement commented on the delayed investigation
without wrongly suggesting that Lea either disposed of incriminating evidence or had the
burden to produce the phone to prove his innocence, we conclude that the prosecuting
attorney did not commit misconduct.
19
2. Closing arguments
Lea’s second claim concerns the prosecuting attorney’s closing argument. After
reviewing the conflicting versions of events, the prosecuting attorney told the jury:
“[E]ither [B.S.] is lying about what happened there, or the Defendant was lying about what
happened. If you believe her, he’s guilty. If you believe him . . . .” Lea’s counsel objected,
a bench conference was held, and the issue was discussed outside the presence of the jury.
Lea contends this argument improperly shifted the burden of proof. He also maintains the
prosecuting attorney misstated the law because “the [state’s] burden of proof is not satisfied
by proof that the complainant told the truth.”
The state responds, first, that B.S.’s testimony addressed each element of the offense
and was sufficient for the jury to find Lea guilty beyond a reasonable doubt. The state is
correct. A thorough review of the record reveals that B.S. testified about each element of
first-degree criminal sexual conduct: (A) penetration; (B) without B.S.’s consent;
(C) personal injury to B.S.; (D) use of force or coercion; and (E) venue. See Minn. Stat.
§ 609.342, subd. 1(e)(i). The state also argues that the jury believed B.S., as shown by the
verdict, and that her testimony alone proved Lea guilty beyond a reasonable doubt. 4
Still, the prosecuting attorney’s argument gives us pause. We are mindful that
prosecuting attorneys must tread lightly when discussing the burden of proof and, as

4 In a sexual-assault prosecution, the complainant’s account need not be corroborated by
other evidence. See Minn. Stat. § 609.347, subd. 1 (2018) (“In a prosecution under sections
609.342 . . . the testimony of a victim need not be corroborated.”); State v. Wright,
679 N.W.2d 186, 190 (Minn. App. 2004) (“Corroboration is not required in criminal sexual
conduct cases.”), review denied (Minn. June 29, 2004).
20
discussed, the state is prohibited from shifting that burden to the accused. See Nissalke,
801 N.W.2d at 106. Here, before making the challenged argument, the prosecuting attorney
correctly addressed the burden of proof by stating that it was the state’s burden to prove
Lea guilty “beyond a reasonable doubt.” And during the bench conference, defense counsel
stated, “there was corrective action and . . . the rest of the [ prosecuting attorney’s]
statement did not go there.” Thus, because the prosecuting attorney correctly stated the
state’s burden of proof and did not frame the evidence as an ultimatum for the jury to
believe either B.S. or Lea, we conclude that the challenged argument does not amount to
prosecutorial misconduct.
B. Emphasizing improper character evidence
Lea contends the prosecuting attorney erred in rebuttal by highlighting the Spreigl
evidence. The state urges us to consider the prosecuting attorney’s argument in context.
We agree with the state’s approach. Rather than focusing on “selective phrases or remarks
that may be taken out of context or given undue prominence,” precedent requires that we
examine closing arguments “as a whole.” State v. Walsh, 495 N.W.2d 602, 607 (Minn.
1993).
Lea’s counsel addressed the jury with the following closing argument:
[B]ringing [ P.R.] in at the end of the State’s case to tell her
story about a past offense Mr. Lea co mmitted—that he pled
guilty to, that he did his ti me for —it’s a last-ditch effort to
convince you that Mr. Lea raped [ B.S.]. And that’s because
[B.S.] isn’t reliable. She’s not credible.

(Emphasis added.) On rebuttal, the prosecuting attorney replied:
21
The Defense talked about [ P.R.] and suggested that . . . it’s
maybe unfair to call her and have her relate what happened to
her. But . . . I suggest to you, members of the jury, you deserve
to know that. You deserve to know what the Defendant had
done in his past . . . .

(Emphasis added.) Lea claims that the prosecuting attorney exploited the Spreigl evidence
“to imply in the rebuttal closing that [he] had the propensity to engage in similar violent
acts and acted in conformity with that trait in this case.” He asserts that the rebuttal attacked
his character and misused the Spreigl evidence. The state argues the prosecuting attorney
was responding to defense counsel’s claims that P.R.’s testimony was a “last-ditch effort”
by the state and that B.S. was neither “reliable” nor “credible.”
“Prosecutors have considerable latitude during closing arguments and are not
required to make a colorless argument.” State v. Patzold, 917 N.W.2d 798, 808 (Minn.
App. 2018) (quotations omitted), review denied (Minn. Nov. 27, 2018). Lea compares this
prosecuting attorney ’s remarks to those in State v. Peterson, where we reversed a
defendant’s conviction because the prosecuting attorney’s closing argument essentially put
the defendant on trial for crimes against the victim and the Spreigl witness. Peterson,
530 N.W.2d 843, 847-49 (Minn. App. 1995). But unlike the closing in Peterson, rebuttal
here did not put Lea on trial for the 2016 assault against P.R. The jury received evidence
that Lea had been held accountable for the 2016 assault. Moreover, the prosecuting attorney
in Peterson was not responding to the defense’s closing argument, as happened here.
Even though this prosecuting attorney could have phrased the rebuttal argument
more carefully, we conclude that the challenged argument directly responded to defense
counsel’s closing argument and no misconduct occurred under these circumstances.
22
C. Arguing facts not in evidence to inflame the jury’s passions
On his fourth claim, Lea circles back to the state’s opening statement and challenges
the prosecuting attorney’s introduction of B.S.:
I want to tell you a little bit about [ B.S.]. You’re going
to hear from her next. She’s the first witness that the State is
going to call, and she’s going to testify . . . .
She will tell you that, last summer—a little bit more
about [B.S.,] she suffered a stroke; so she has some cognitive
impairments. And you might even hear evidence that Mr. Lea
himself—

Defense counsel: Objection, Your Honor. . . . .

(Bench conference held off the record.)

Prosecuting attorney: You’ll hear evidence that [ B.S.] is a
vulnerable adult, looking at obtaining social security—

Defense counsel: Objection, Your Honor.
. . . .
Prosecuting attorney: And, ladies and gentlemen,
understanding her medical condition is important for you to
understand [B.S.] as she presents in this courtroom —as she’s
testifying, as she’s talking. So it’s important to know—and
she’ll talk about this —her medical history, to that extent.
And—so I will ask you to consider that when you’re evaluating
her testimony.

(Emphasis added.) After the second objection, the district court told the jury: “Whether or
not [B.S. is] vulnerable in a sense isn’t an issue that I expect you’re going to have to decide
on.”
Lea argues that the prosecuting attorney ’s comments included facts not in
evidence—that B.S. was vulnerable after suffering a stroke. Lea also claims that these
comments garnered sympathy for B.S. and inflamed the jury’s passions against him. The
23
state contends that Lea has taken the prosecuting attorney’s comments out of context. The
state also argues that the prosecuting attorney only mentioned these facts to prepare the
jury for any difficulties that B.S. may experience while testifying.
Prosecuting attorneys must “avoid inflaming the jury’ s passions and prejudices
against the defendant.” State v. Morton, 701 N.W.2d 225, 236 (Minn. 2005) (quotation
omitted). We heed statements that might inflame or prejudice jurors “[w]hen credibility is
a central issue.” Id.; see also State v. Bradford, 618 N.W.2d 782, 799 (Minn. 2000) (“[T]he
state may discuss the victim’s life if it does not attempt to influence the jury’s prejudice or
passion.”). Equally important, prosecuting attorneys must refrain from misstating evidence
or discussing facts not in evidence. State v. Bobo, 770 N.W.2d 129, 142 (Minn. 2009);
State v. McArthur, 730 N.W.2d 44, 53 (Minn. 2007).
Having considered the prosecuting attorney’s opening statements and relevant
caselaw, we see merit to both parties’ positions. The state later elicited testimony from B.S.
about her medical history— explaining that she suffered from a stroke before she met Lea.
B.S. also testified that Lea pressured her to have intercourse after he picked her up from a
doctor appointment and that, on the day of the sexual assault, she escaped from Lea by
telling him she needed to attend a medical appointment. Thus, the prosecuting attorney’s
opening statement about B.S.’s vulnerability was supported by B.S.’s testimony.
Lea validly points out, however, that the prosecuting attorney created sympathy for
B.S. by telling the jury that B.S. was “looking to obtain social security .” This comment
served no purpose other than to inflame the jury’s passions. But this comment was brief,
less serious misconduct, and did not play a substantial part in the jury’s verdict. For these
24
reasons, the prosecuting attorney ’s comments about B.S. seeking social security was
harmless and Lea has not met his burden to show reversal is warranted.
D. Excusing jury unanimity
Lea finally alleges prosecutorial misconduct during closing argument, based on the
prosecuting attorney’s description of the offense elements and jury unanimity:
Again, you don’t all have to agree— you know, 12 of you don’t
have to agree that there’s force or coercion—could be split, six
or six, on that one—just as long as all 12 of you agree beyond
a reasonable doubt the State has proven either one of those two
pieces of that element.

Lea argues that the prosecuting attorney misled the jury by telling them that they did not
need to agree unanimously on whether the state proved force or coercion during trial.
Defense counsel did not object, and Lea asserts that the prosecuting attorney ’s argument
amounts to prejudicial plain error. The state disagrees and relies on a recent unpublished
decision.
The state is correct, and State v. Epps is instructive to our decision. 949 N.W.2d 474
(Minn. App. 2020), review granted (Minn. Nov. 25, 2020); see also State v. Chauvin,
955 N.W.2d 684, 691 (Minn. App. 2021) (holding “a precedential opinion of this court has
immediate authoritative effect” even after the supreme court has granted review), review
denied (Minn. Mar. 10, 2021). Epps involved a prosecuting attorney’s closing argument
that resembles the argument here. See 949 N.W.2d at 480. There, we determined that “the
terms ‘force’ and ‘coercion’ establish alternative means of committing one element of the
first-degree criminal sexual conduct offense.” Id. at 485. We also clarified that “a jury need
not unanimously agree which of those means was used to commit the offense.” Id. at 486.
25
Thus, just as we concluded in Epps, this prosecuting attorney “did not misstate the law in
his closing argument so as to commit prosecutorial misconduct.”5 Id.
IV. Lea was not deprived of a fair trial b y the cumulative effect of the errors he
has alleged.

“Cumulative error exists when the cumulative effect of the errors and indiscretions,
none of which alone might have been enough to tip the scales, operate to the defendant’s
prejudice by producing a biased jury.” State v. Penkaty, 708 N.W.2d 185, 200 (Minn. 2006)
(quotations and alterations omitted). When faced with a claim of cumulative error,
appellate courts examine “the egregiousness of the errors and the strength of the State’s
case.” State v. Williams, 908 N.W.2d 362, 366 (Minn. 2018) (quotation omitted). If the
state presented strong evidence of the appellant’s guilt and the case was not a close call,
the reviewing court is unlikely to reverse the appellant’s conviction for a new trial based
on the aggregation of errors. Id.
Here, the state’s evidence against Lea was strong and the few errors raised by Lea
on appeal did not affect the jury’s verdict. The only errors that we recognize relate to P.R.’s
testimony about being pregnant in 2016 and the prosecuting attorney’s opening remarks
about B.S. seeking social security. But even when we consider these errors together, Lea
has not shown that the errors tipped the scales in the state’s favor during trial. Without a
demonstration of prejudice, Lea is not entitled to a new trial.
Affirmed.

5 We also note that jur y unanimity does not appear to be a critical issue. B.S.’s testimony
established that Lea’s assault involved both force and coercion, thus, the jury likely relied
on both theories to arrive at a unanimous verdict of guilty.