A20-0610

This opinion is nonprecedential except as provided by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
A20-0208
A20-0610

State of Minnesota,
Appellant (A20-0208),
Respondent (A20-0610),

vs.

John William Litzau,
Respondent (A20-0208),
Appellant (A20-0610).

Filed February 16, 2021
Affirmed
Florey, Judge

Becker County District Court
File No. 03-CR-18-1535

Keith Ellison, Attorney General, Edwin W. Stockmeyer, Assistant Attorney General,
St. Paul, Minnesota; and

Brian W. McDonald, Becker County Attorney, Detroit Lakes, Minnesot a (for appellant
State of Minnesota)

Mark D. Nyvold, Fridley, Minnesota (for respondent Litzau)

Considered and decided by Bryan, Presiding Judge; Ross, Judge; and Florey, Judge.
NONPRECEDENTIAL OPINION
FLOREY, Judge
The state appeals from the district court’s postverdict order vacating the jury’s guilty
verdict for first-degree criminal sexual conduct on the ground of insufficient evidence of

2
penetration. Litzau cross -appeals from the district court’s judgment of convicti on for
second-degree criminal sexual conduct, arguing that the prosecutor committed prejudicial
misconduct in closing and rebuttal argument. We affirm the district court’s postverdict
order and Litzau’s second-degree conviction.
FACTS
In July 2018, respon dent/cross-appellant John William Litzau was charged with
second-degree criminal sexual conduct based on allegations involving a young relative (the
victim). The charges stemmed from an initial report made by the victim to her grandmother
and a subsequent forensic interview that occurred with licensed social worker Debra Nagle,
where the victim stated that Litzau—a 43-year-old relative who lived in the same house as
the victim’s father, pulled down the victim’s clothes, including her underwear, and was
“tickling” her “butt”—the place she went “poop and pee”—after bringing the victim to an
unoccupied house. After the “tickling” ended, the victim reported that Litzau gave her ice
cream because she had “been so good” and directed her not to tell an yone she had gotten
the treat. After a later meeting with the victim, appellant State of Minnesota filed an
amended complaint in September 2019, adding a second charge of first -degree criminal
sexual conduct.
The rescheduled jury trial took place in ear ly December. The jury heard from the
victim’s grandmother, the victim’s father, forensic interviewer Debra Nagle, investigator
Jon Peterson, defense expert Jessica Mugge, Litzau’s cousin, Litzau’s brother-in-law, and
Litzau himself. The victim, who was s even years old at the time of trial, also testified
briefly. She was able to answer basic background questions but became less responsive

3
during questioning.1 The victim’s full videotaped forensic interview with Nagle was also
played for the jury.2
The jury found Litzau guilty of both first - and second-degree counts of criminal
sexual conduct. Litzau filed a motion for judgment of acquittal or alternatively a new trial,
arguing insufficiency of the evidence and prosecutorial misconduct. The district c ourt
granted Litzau’s motion for judgment of acquittal on count I (first -degree criminal sexual
conduct) based on insufficient evidence to support the inference of intentional penetration,
but denied his motion on count II (second -degree criminal sexual conduct), as well as his
request for a new trial. This appeal by the state and cross-appeal by Litzau follow.
DECISION
I. Insufficiency of the evidence on penetration
The state argues that the district court erred in granting Litzau’s motion for judgment
of ac quittal on first -degree criminal sexual conduct based on insufficient evidence of
penetration. “If the jury returns a verdict of guilty . . . a motion for a judgment of acquittal
may be brought within 15 days after the jury is discharged.” Minn. R. Crim. P. 26.03,
subd. 18(3)(b). Because it is “procedurally equivalent to a mo tion for a directed verdict,”
this court reviews a motion for judgment of acquittal de novo . State v. McCormick, 835
N.W.2d 498, 506 (Minn. App. 2013) (quoting State v. Slaughter, 691 N.W.2d 70, 74 (Minn.
2005), review denied (Minn. Oct. 15, 2013) ). “[T]he test to be applied is whether, after

1 During her testimony, the victim stated that she did not know or recognize anyone in t he
courtroom, including Litzau—a relative who had lived with her prior to the incident.
2 The interview and the grandmother’s testimony was admitted as substantive evidence
under Minn. Stat. § 595.02, subd. 3 (2018).

4
viewing the evidence and all resulting inferences in the light most favorable to the state,
the evidence is sufficient to present a fact question for the jury.” McCormick, 835 N.W.2d
at 506 (quotation omitted).
On appeal, the s tate challenges the district court’s postverdict order vacating the
jury’s first-degree guilty verdict, arguing that sufficient evidence of penetration was
established at trial through the victim’s statements and gestures, particularly through the
forensic interview. Penetration is defined as “any intrusion however slight into the genital
or anal openings: (i) of the complainant’s body by any part of the actor’s body or any object
used by the actor for this purpose.” Minn. Stat. § 609.341, subd. 12(2)(i) (2018).
During the forensic interview, the following exchange took place with Nagle and
the victim, which served as a primary basis for the state’s criminal-sexual-conduct charges:
Q. So you told me [Litza u] pulled your clothes down.
What kind of clothes were you wearing?
A. Pants.
Q. Pants . . . and do you remember what pants you were
wearing?
A. I don’t know.
Q. That’s okay if you don’t know. Do you know if y ou
were wearing underwear that day?
A. I was wearing underwear.
Q. And what happened to your underwear?
A. It got in my pants.
Q. It got in your pants? So did – did your underwear come
down when your pants got pulled down?
A. Ah-huh.
Q. They did? Okay. So then when [Litzau] pulled your
pants down, did he pull your underwear down too? Did
I get that right? Okay. . . and then what happened after
he pulled your pants down?
A. He started tickling me.
Q. And what did he tickle you with?
A. His hand.

5
Q. His hand and what did his hand do when it was tickling
you?
A. I don’t know.
Q. Did it move or was it still?
A. It moved.

In addition, to support the specific element of intentional penetration required for first -
degree criminal sexual conduct, the state points to the following excerpt from later on
during the same forensic interview with the victim:
Q. Okay. Well let me ask just my few questions, okay? When
[Litzau] tickled the part that you showed me, what’s the
name of that part?
A. The butt.
Q. The butt and what do you use that butt – part of your
butt for?
A. Go poop or pee.
Q. To go poop or pee? Does poop and pee come out of the
same part or a different part?
A. You know the hole that you – that’s under here?3
Q. Ah-huh.
A. That’s the part.
Q. That’s the part?
A. Yeah.
Q. Okay and what comes out of that hole?
A. Poop or – poop and pee.
Q. Poop and pee and when [Litzau] tickled you, you said
he used his fingers, is that right? Did his fingers go inside
of that hole?
A. No.4

This type of appeal from the district court’s posttrial order —where an element of
the alleged offense relies on a series of inferences to be made from the direct evidence that

3 The video for this forensic interview shows the victim gesturing generally to her general
vaginal region when talking about the area that Litzau touched.
4 Litzau notes that during this portion of the forensic interview, the victim specifically
denied that his fingers went “inside of that hole,” thereby foreclosi ng any direct evidence
of actual penetration based on these statements.

6
was presented at trial—“requires us to conduct a de novo review of the s ufficiency of the
state’s circumstantial evidence.” McCormick, 835 N.W.2d at 506. Here, the district court
wrote a thorough memorandum explaining its decision to set aside t he first -degree
criminal-sexual-conduct conviction and why the chain of necessary inferences was too
attenuated on the element of intentional penetration to support the jury’s first-degree guilty
verdict.
In its postverdict order, the district court addressed why the victim’s gestures and
description of the area that Litzau touched during the forensic interview did not establish
conclusive evidence of the act of penetration:
During this exchange, [the victim] does not clearly express
what part of her, the butt or vaginal region, that [Litzau]
actually touche [d]. The State asserts it was [the victim’s]
vaginal region that was touched, as the video for this forens ic
interview shows [the victim] pointing to her vaginal region
when talking about the area [Litzau] touched. Even if [the
victim] was trying to point to her vaginal region, there is no
definitive evidence to support the act of penetration.

The district court further explained why the victim’s description of the “tickling” that
occurred and the “hole” that might have been touched during this reported contact still did
not definitively establish the inference that penetration occurred:
When [the victim] first mentions the “hole,” it is equally likely
that she was referring to the “hole” for the sole purpose of
answering Debra Nagle’s question about whether or not pee
and poop come out of the same body part. Even if the Court
made the assumption that [the victim] was referring to the area
[Litzau] touched, [the victim] still fails to describe that specific
part of her was “tickled” that would support a finding of
penetration.

7
These observations and conclusions by the district court are supported by the record.
While the state clearly presented sufficient evidence that sexual touching occurred to an
intimate part of the victim, the inference that the “tickle” the victim described to her “butt”
amounted to a breach of the genital or anal opening—even the “outer folds” of this intimate
area—is a link too far removed in the series of inferences necessary to reasonably find
intentional penetration here, as is required to sustain a first-degree criminal-sexual-conduct
conviction. Cf. State v. Shamp , 422 N.W.2 d 520, 523 (Minn. App. 1988) (affirming
sufficient evidence of penetration for first -degree criminal sexual conduct where “[the
victim] never testified as to penile penetration, but stated that appellant would place his
fingers on her anus and in her vaginal area and that he would move his fingers between the
folds of skin covering her vagina”). The circumstances proved here by the state—that there
was some touching to the victim’s genital area causing her discomfort or even pain —do
not exclude an alternat ive explanation of mere contact without penetration. Because the
victim’s statements were too ambiguous to unequivocally establish the necessary inference
of penetration, even under the broader Shamp definition, the district court did not err in
granting Litzau’s motion for judgment of acquittal on first-degree criminal sexual conduct.
II. Prosecutorial misconduct in closing argument
As a cross -appeal, Litzau argues that the prosecutor committed prejudicial
misconduct in his closing and rebuttal arguments by (1) speculating that the young victim’s
reluctance to testify was due to Litzau’s presence in the courtroom and (2) implying that
the victim lacked prior sexual knowledge or experience despite the district court’s pretrial
order prohibiting such evidence.

8
Appellate courts consider the closing argument as a whole when evaluating alleged
prosecutorial misconduct. State v. Pendleton , 759 N.W.2d 900, 911 (Minn. 2009). The
standard of review for prosecutorial misconduct depends on whethe r the defendant
objected at trial. State v. Martin, 773 N.W.2d 89, 104 (Minn. 2009). When the defendant
objects, this court applies a two-tiered harmless-error analysis. Id. For cases that involve
“unusually serious prosecutorial misconduct,” this cour t determines whether the
misconduct was harmle ss beyond a reasonable doubt. Id. For less-serious misconduct,
this court determines whether the misconduct “likely played a substantial part in
influencing the jury to convict.” Id.
However, when the defendant does not object at trial, this court applies a modified
plain-error test. Id. (citing State v. Ramey , 721 N.W.2d 294, 302 (Minn. 2006)). Under
that test, the defendant must demonstrate that there was an error that was plain. Id. If plain
error is established, then the state has the burden to demonstrate that the error did not affect
the defendant’s substantial rights. Id. If those prongs are established, then this court
determines whether to address the error “to ensure fairness and the integrity of the judicial
proceedings.” Id. (quotation omitted).
A. Reluctance to testify
At the beginning of closing argument, the prosecutor began by stating:
At the start of this trial I told you that this case was about
silencing [the victim]. That effort to silence [the victim] began
with ice cream, telling her that she was a good girl and not to
tell.
[The victim] felt that pressure in this room. She came
in, she had a seat, she froze. I want you to keep in mind the
other opening comments I made to you. In opening comments

9
I also told you that I didn’t know how she was going to
perform. She might be shy. She might be nonresponsive. She
might be here to tell you. That is what I told you. It’s almost
like I knew to expect she wouldn’t be able to say much in the
courtroom.
You had to watch her struggle and deny basic truths that
she should know, like, do you know anyone in the room? And
that all occurred while the defendant had opportunity to sit
between two attorneys and stare at her throughout trial. But
[the victim’s] silence is deafening.

Later in closing argument, the prosecutor further addressed the victim’s testimony and
demeanor at trial:
On December 12, 2019, [the victim] comes in this
courtroom. She comes through these swinging gates, and she
looks all confident. She walks in. She goes to have a seat. But
something was different about this occasion. She gets up here,
and she was silenced. She even failed to provide us basic truths
that we know she knew. And you can infer from that that what
Ms. Nagle and what Ms. Mugge told you about the chilling
effect on children, of coming in and having to sit in a room of
authoritative people or their offender, what that does to a
child’s ability to disclose. It discourages it.
But even then she gave us basic information. Maybe
not a lot, but she gave us some basic stuff. And some of that
stuff is the intangible things you get to weigh. You have been
instructed you get to look at a witness’s demeanor and their
behavior, all those things, so it’s not just the words coming out
of people’s mouths. You get to watch their body language.
You got to see her. Where did she look when she first
came in? She focused on the Judge. She didn’t look away
from the Judge until I asked her about that ball in my hand.
And once I got her attention with the ball , her eyes caught the
defense table and she couldn’t unlock. She was frozen. She
was petrified up there. That is silencing. But you can read into
that body language and see that, and that speaks to the sincerity
and reliability of her disclosures that she made previously.

Based on the above statements, Litzau argues that “the State’s denigration of Litzau’s
constitutional right to be present by portraying him as intimidating [the victim] into not

10
testifying” amounted to prejudicial misconduct undermining the fairness of his trial. Litzau
did not object to these closing statements at trial ; accordingly, we review this challenge
under the modified-plain-error test. See Ramey, 721 N.W.2d at 302.
Overall, these observations by the prosecutor, which were grounded in evidence
already presented to the jury, certainly did not rise to the level of misconduct. The
prosecutor did not misstate evidence; rather he appropriately encouraged the jury to make
a reasonable inference based on two prior expert’s testimony and the victim’s observable
demeanor in the courtroom. This was not foundationless speculation. Further, it is evident
from the transcript that the prosecutor described the courtroom setting as a whole, not just
Litzau’s presence, as possibly intimidating or “silencing” the young victim during her
testimony. As the state emphasizes, the victim’s credibility was a central issue in this case
and “[w]h en viewed as a whole, the prosecutor’s reference to the courtroom setting,
including Litzau’s presence, was a proper element of the argument that the jury should find
[the victim’s] out-of-court allegations to be credible.” We see no error here.
B. Prior sexual knowledge or experience
Litzau also challenges a second remark made by the prosecutor near the end of trial.
During rebuttal, the prosecutor stated:
Remember the video. When [the victim] went to describe the
tickling she was using her fingers. Finger is part of the hand,
for a child who describes tickling “down here.” Rubbing over
the labia w ith one’ s hand, getting through those folds with
one’s hand, would that not feel like tickling? Would that not
feel like tickling to a girl who has no other experience?

11
Litzau argues that, “[b]ecause the State . . . knew that a factual basis existed to believe that
[the victim] had sexual knowledge, and that this evidence had been ruled inadmissible, it
was improper to argue that [the victim] had ‘no other experience’ to explain why she would
say ‘tickles’ to describe a sexual touch.” The parties agree that Litzau objected to this
portion of the state’s rebuttal argument at trial, so we apply a harmless -error analysis to
this prosecutorial-misconduct challenge. See Martin, 773 N.W.2d at 104.
Litzau points to the pretrial order from the district court which stated that discussion
of any prior sexual knowledge by the victim would not be permitted at trial unless the state
opened the door to this issue. Specifically, the district court’s order stated:
Neither party may introduce evidence regarding the child
victim’s sexual history or previous sexual conduct.
‘Alternative source of knowledge’ evidence may only be
admitted if the State introduces evidence su ggesting that
Defendant is the sole source of the victim’s knowledge of
sexual matters.

In response, the state argues that the prosecutor’s no-other-experience comment did
not violate the district court’s order, because “[b]y those express terms [in the above quoted
order], the state was permitted to offer evidence (and therefore argue in closing) that Litzau
was the only source of [the victim’s] ‘knowledge of sexual matters.’” Further, the state
emphasizes that the lack-of-sexual-experience statement i n closing was not the first time
the issue of the victim’s prior sexual experience had been raised at trial; the portion of the
forensic interview where the victim stated another unidentified person had inappropriately
touched her was repeatedly read aloud to the jury by defense counsel. Thus, the state argues

12
that Litzau “opened the door by repeatedly implying that [the victim] had been sexually
touched on another occasion.”
We need not determine whether the challenged statement was a violation of the
pretrial order. This isolated statement certainly did not rise to the level of “unusually
serious prosecutorial misconduct” and was harmless beyond a reasonable doubt to the
second-degree criminal -conduct conviction. There was substantial evidence throughout
the trial record establishing sexual touching by Litzau to the victim’s intimate parts ,
including the victim’s direct statements describing the act to both her grandmother and the
forensic interviewer. Litzau is not entitled to a new trial on this second-degree conviction.
Affirmed.