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This opinion is nonprecedential except as provided by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
A20-0897

State of Minnesota,
Respondent,

vs.

Shuxin Lan,
Appellant.

Filed May 10, 2021
Affirmed
Florey, Judge

Washington County District Court
File No. 82-CR-18-3783

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

Pete Orput, Washington County Attorney, Nicholas A. Hydukovich, Assistant County
Attorney, Stillwater, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Melissa Sheridan, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Frisch, Presiding Judge; Reilly, Judge; and Florey,
Judge.
NONPRECEDENTIAL OPINION
FLOREY, Judge
In this direct appeal from final judgments of conviction for two counts of promoting
the prostitution of an individual and two counts of receiving profits from prostitution ,
appellant argues that she is entitled to a new trial because it was plain error affecting her
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substantial rights for the prosecutor in closing argument to encourage jurors to consider the
broad social problem of sex trafficking and to invite jurors to put themselves in the victims’
shoes. Because we determine the state did not commit prosecutorial misconduct, we
affirm.
FACTS
Appellant Shuxin Lan owned and opera ted two massage businesses. Following an
approximately yearlong investigation into the businesses, the state charged Lan with two
counts of promoting the prostitution of an individual and two counts of receiving profits
from prostitution, one count for each of the two massage parlors.
In his opening statement, defense counsel made the following statement:
Sex trafficking, human trafficking, massage parl ors,
they are great buzz words, you hear a bout them on the news.
Suddenly someone gets arrested and it’s all over. Prosecutors
walk her out on the perp walk.

. . . .

And somehow [Lan] got caught up in this country and
this — our national hysteria with sex trafficking. What you’re
going to hear from is a lot of experts — so called experts. They
are going to tell you all sorts of stuff about sex trafficking. You
know what they are not going to tell you about? Anything my
client did wrong.

In his closing argument, the prosecutor made the following comments:

Human trafficking is a problem. And we have heard about that
problem now on our fourth day. It’s a problem in Minnesota
and it’s a problem in Washington County.

Human trafficking takes different forms. Some of those
forms involve force — and we heard from police officers like
[the detective] on cases he’ s investigate d involving that
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force —fraud, coercive acts and also those that ar e promoted.
That’s the umbrella of human trafficking.

Now imagine this: Imagine a female being recruited
online, offered up to $6,000.00 a month, travelling one-way to
Minnesota, being picked up from the airpo rt and dropped off
at a massage parlor and working a 12 -hour day, six to seven
days a week.

Now imagine that same fema le not speaking English,
having no ties to the community and li ving in the same place.
Working every day, 12 hours. We heard from t he defendant
how difficult that was because she’s done it before.

And the only way that they get paid is if they have
enough clients and they get enough tips. There is no hourly
rate. There is no commission. It’s who you bring in the door
every single day.

Now imagine waking up in that parlor, turning the open
sign on and [men] coming in. That’s what these f emales
endure every single day.

In his closing argument, Lan’s counsel said:

Now, the State opened their closing by telling you that
human [trafficking] is a problem. Okay. My first thought was
“why?” Why is it a problem? And when did it suddenly
become a problem? Well, we all know the answer. Last three
or four years, human trafficking, everywhere in the news. And
when you hear the words “human trafficking,” and the State
[alluded] to this, you don’t think of Chinese massage parlors
you think o f women chained to a bed coming in cargo
containers. That’s what you think of.

You hear about these horrible, horrible st ories about
how these women are rescued from these horrible people that
are trafficking them and that’s what we hear about. Whether
that’s true or false is irrelevant, but that is what you hear about.

And then what happens? And what’s happened? Well,
we have this problem. Why? State says we have a problem.
Very important. So we have a problem as a nation. What do
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we do? We create a task force. We’ve got to do something
about it. And that’s what happened.

. . . .

And when you interview [the victim -employees],
according to [the detective], not only do they think they are not
victims, they are going to tell you nothing happened. So these
women are too stupi d to know that they are a victim. That’s
what the State is telling you. That’s what human [trafficking]
— that’s the entire basis. These women don’t know they are
victims.

In his rebuttal, the prosecutor commented:

Human trafficking is a problem. This is rea l. It’s happening
in Washington County. These three pages tell you it’s
happening.

If you all don’t think or believe that human trafficking
is a problem and think what [defense counsel] said that this is
all made up, I don’t know what a problem is, then.

The jury found Lan guilty all four charged offenses. This appeal follows.
DECISION
Lan argues that she is entitled to a new trial because the prosecutor committed
prejudicial misconduct during closing argument by “encourag[ing] the jurors to consider
broad social issues” and “invit[ing] jurors to put themselves in the victim’s shoes.”
Because Lan did not object to the statements at trial, we review under a modified
plain-error standard. State v. Ramey , 721 N.W.2d 294, 302 (Minn. 2006). Under that
standard, the defendant must demonstrate error that is plain because it “contravenes case
law, a rule, or a standard of conduct.” Id. at 302. If the defendant is able to make this
showing, the burden shifts to the state to demonstrate a lack of prejudice by showing “that
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there is no reasonable likelihood that the absence of the misconduct in question would have
had a significant effect on the verdict of the jury.” Id. (quotations omitted). “In assessing
whether there is a reasonable likelihood that the absence of the misconduct would have had
a significant effect on the jury’s verdict, we consider the strength of the evidence against
the defendant, the pervasiveness of the improper suggestion s, and whether the defendant
had an opportunity to (or made efforts to) rebut the improper suggestions.” State v. Davis,
735 N.W.2d 674, 682 (Minn. 2007). If the state fails to demonstrate that substantial rights
were not affected, “the appellate court then assesses whether it should address the error to
ensure fairness and the integrity of the judicial proceedings.” State v. Griller, 583 N.W.2d
736, 740 (Minn. 1998). When reviewing alleged misconduct in closing statements, this
court must look at the w hole argument in context, not just selective phrases or remarks.
State v. Walsh, 495 N.W.2d 602, 607 (Minn. 1993).
Societal issue
Lan argues that the prosecutor committed misconduct by “by encouraging the jurors
to consider broad social issues to decide whether to convict ” during closing argument.
Specifically, Lan argues that the prosecutor “exhort[ed] the jurors to address the broad
social problem of sex trafficking” by telling jurors “they would be part of a societal
problem if they did not believe t hat human trafficking is a problem, and if they did not
convict Lan to address that problem.”
Generally, “it is improper for the prosecutor to urge the jury to protect society with
its verdict,” or to make closing arguments that “attempt to divert the jury from the facts of
the case by making broad policy arguments.” State v. Myrland , 681 N.W.2d 415, 421
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(Minn. App. 2004) (quotation omitted), review denied (Minn. Aug. 25, 2004) . But a
defendant might make certain arguments or introduce material that “opens the door” to
allow the state to “respond with material that would otherwise have been inadmissible.”
State v. Bailey, 732 N.W.2d 612, 622 (Minn. 2007) (quotation omitted). The opening-the-
door doctrine “is essentially one of fairness and common sense” so that one party does not
gain an unfair advantage by introducing misleading or distorted information. Id. (quotation
omitted).
Lan argues the prosecutor committed misconduct by making the following
statement:
Human trafficking is a problem. And we have heard about that
problem now on our fourth day. It’s a problem in Minnesota
and it’s a problem in Washington County.

But our review of the record shows defense counsel “opened the door” to the prosecutor’s
comments on the social problem of sex-trafficking in his opening statement by insinuating
that sex-trafficking is nothing more than “buzz words” contributing to “our national
hysteria with sex trafficking.” See Bailey, 732 N.W.2d at 622. Had the district court sua
sponte prohibited the prosecutor from making his argument in response to defense
counsel’s opening statement, it could have created an unfair advantage. Furthermore, the
prosecutor’s comments were brief, covering only two pages of the 45 -page closing
statement, and defense counsel addressed them during his own closing argument when he
emphasized that sex-trafficking has only become a “problem” because “[the] State says we
have a problem.” Therefore, we conclude the state did not engage in prosecutorial
misconduct during his closing argument.
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Placing jurors in the victims’ shoes

Lan next argues that the prosecutor committed misconduct during closing argument
by inviting jurors to put themselves in the victims’ shoes. Generally, “arguments that invite
the jurors to put th emselves in the shoes of the victim are considered improper.” State v.
Johnson, 324 N.W.2d 199, 202 (Minn. 1982); see State v. McNeil, 658 N.W.2d 228, 236
(Minn. App. 2003) (stating that it is misconduct for prosecutor to evoke sympathy for the
victim).
Lan argues that the prosecutor impermissibly asked the members of the jury to place
themselves in the victims’ shoes in the following portion of the state’s closing argument:
Now imagine this: Imagine a female being recruited
online, offered up to $6,000.00 a month, travelling one-way to
Minnesota, being picked up from the airpo rt and dropped off
at a massage parlor and working a 12 -hour day, six to seven
days a week.

Now imagine that same fema le not s peaking English,
having no ties to the community and li ving in the same place.
Working every day, 12 hours. We heard from t he defendant
how difficult that was because she’s done it before.

And the only way that they get paid is if they have
enough clients and they get enough tips. There is no hourly
rate. There is no commission. It’s who you bring in the door
every single day.

Now imagine waking up in that parlor, turning the open
sign on and [men] coming in. That’s what these f emales
endure every single day.

Review of the prosecutor’s closing argument as a whole shows that, in making these
statements, the prosecutor was inviting jurors to consider what it was like for the female
victim-employees in this case. We determined that this type of comment is proper in State
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v. Bashire, 606 N.W.2d 449, 454 (Minn. App. 2000), review denied (Minn. Mar. 28, 2000).
There, we explained that it would be improper if a prosecutor directed the jurors to imagine
themselves as victims of a crime, but it was not improper to ask the jurors to consider the
effect of the crime on the actual victim. Id. Here, because the prosecutor invited jurors to
imagine what it was like for the victim-employees to experience the sex-trafficking crimes
at issue, not the jurors individually, we determine no prosecutorial misconduct occurred.1
Because Lan has not demonstrated error in the prosecutor’s closing argument, we
need not reach the other prongs of the plain-error test.
Affirmed.

1 We note that while the final paragraph of the prosecutor’s closing argume nt arguably
shifted in tone, when read in the context of the passage as a whole, while inartfully stated,
it was not meant to be an invitation to the jury to place themselves in the victims’ shoes.