State of Minnesota, Respondent, vs. Martell Antonio Bloxson, Appellant.

.. I
This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. l(c).
STATE OF MINNESOTA
IN COURT OF APPEALS
A20-1054
State of Minnesota,
Respondent,
vs.
Martell Antonio Bloxson,
Appellant.
Filed July 19, 2021
Affirmed
Johnson, Judge
Hennepin County District Court
File No. 27-CR-19-19067
Keith Ellison, Attorney General, St. Paul, Minnesota; and
Michael 0. Freeman, Hennepin County Attorney, Jacqueline Bailey, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Sara L. Martin, Assistant Public
Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Worke, Presiding Judge; Johnson, Judge; and GaYtas,
Judge.
NONPRECEDENTIAL OPINION
JOHNSON, Judge
A Hennepin County jury found Martell Antonio Bloxson guilty of first-degree
criminal sexual conduct based on evidence that he sexually assaulted a young girl. We
conclude that Bloxson is not entitled to a new trial on the ground of prosecutorial
misconduct. We also conclude that the district court did not err by granting the state's
motion for an upward durational departure from the presumptive sentencing range.
Therefore, we affirm.
FACTS
At various times between 2016 and 2018, Bloxson lived with L.M., her three young
children, and some of L.M. 's relatives. Bloxson sometimes watched and cared for L.M. 's
children while L.M. was at work.
One day, while Bloxson was watching L.M.'s children, Bloxson called J.M.Y. into
his bedroom and talked to her about her getting into trouble at school. Bloxson told J.M.Y.
to lie on her back and to undress. He penetrated her vagina with his penis. While he
penetrated her, he told her that misbehavior at school has consequences. After he stopped
penetrating her, he told her that no one would believe her if she were to tell others about
the incident. Later that day, he told her that she was "off punishment" but that she should
remember that misbehavior has consequences.
In June 2019, J.M.Y. told her father that she had been raped by Bloxson. J.M.Y.'s
father contacted law enforcement. J.M.Y. was interviewed by a child-protection
investigator and a police officer, was examined by a pediatrician, and was interviewed by
a trained forensic interviewer.
In August 2019, the state charged Bloxson with one count of first-degree criminal
sexual conduct, in violation of Minn. Stat.§ 609.342, subd. l(a) (2016). The case was tried
to a jury over three days in February 2020. The state called seven witnesses, including
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J.M.Y. and her mother and her father. Bloxson testified in his own defense and denied
engaging in any sexual conduct toward J.M.Y.
The jury found Bloxson guilty. In addition, the jury found one aggravating factor:
that Bloxson was in a position of authority over J.M.Y. when he committed the offense.
At sentencing, the district court granted the state's motion for an upward durational
departure from the presumptive sentencing range. The district court imposed a sentence of
230 months of imprisonment, which is 14 months longer than the longest presumptive
sentence. Bloxson appeals.
DECISION
I. Claims of Prosecutorial Misconduct
Bloxson first argues that he is entitled to a new trial on the ground that the prosecutor
engaged in misconduct on two occasions. The right to due process of law includes the right
to a fair trial. Spann v. State, 704 N.W.2d 486, 493 (Minn. 2005). Prosecutorial
misconduct may violate a defendant's right to a fair trial. State v. Nissalke, 801 N.W.2d
82, 103 (Minn. 2011).
A. Cross-Examination Question
First, Bloxson argues that the prosecutor committed misconduct by attempting to
elicit inadmissible character evidence by asking him on cross-examination whether he had
been charged with a crime. One way in which a prosecutor may engage in misconduct is
"to knowingly offer inadmissible evidence for the purpose of bringing it to the jury's
attention." State v. Mosley, 853 N.W.2d 789, 801 (Minn. 2014) (quotation omitted).
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On direct examination, Bloxson testified that he had had "no complaints" in a prior
job working as a water-damage mitigation specialist before losing his certification. On
cross-exam ination, the prosecutor sought to clarify by asking, "I believe you said you've
never had any complaints at work?" Bloxson answered, "No, I've never had any to my
company. No, I have not." The prosecutor then asked, "Aren't you currently charged with
stealing from a fonner employer?" Bloxson's attorney objected, and the district court
sustained the objection. After a bench conference, the prosecutor revised the objectionable
question by asking Bloxson whether he had "ever been the subject of complaints ... as an
employee for any company," and Bloxson answered, "Yes, I have."
Bloxson contends that the prosecutor engaged in misconduct by seeking to introduce
inadmissible character evidence. In State v. Harris, 52 1 N.W.2d 348 (Minn. 1994), a
prosecutor sought to introduce evidence that was inadmissible pursuant to rule 404(b) of
the rules of evidence. Id. at 354. The supreme court stated:
Id.
We have made it clear that "[t]he state will not be
permitted to 'deprive a defendant of a fair trial by means of
insinuations and innuendos which plant in the minds of the jury
a prejudicial belief in the existence of evidence which is
otherwise inadmissible."' State v. Tahash, 280 Minn. 155,
157, 158 N.W.2d 504, 506 (1968) (quoting State v. Currie, 267
Minn. 294, 301, 12 6 N.W.2d 389, 395 (1964)). Use of such
insinuation and innuendo is reversible error "whether the
allusion to prior misconduct is contained in the question which
the prosecutor asks or in the answer which the witness gives."
The state contends, however, that Bloxson "opened the door" to the prosecutor's
question by testifying that there had been no complaints about him at work. "Opening the
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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 42 5, 436 (Minn. 2006) (quotation omitted). The purpose of the
doctrine is to ensure that one party does not gain an unfair advantage by introducing
testimony on a particular subject about which the other party may not introduce evidence
to refute or respond to the first party's testimony. Id.
The state is correct that Bloxson opened the door-to some extent-when he
testified that there had been no complaints against him at work. Bloxson's testimony on
direct examination permitted the state to inquire by challenging Bloxson's testimony on
that issue. But it was unnecessary for the prosecutor to ask Bloxson a question that might
be understood to inquire whether the state had charged him with a crime. The district court
appropriately sustained the objection before Bloxson answered the prosecutor's question.
After a bench conference, the prosecutor asked a narrower question concerning whether
Bloxson "had been the subject of complaints ... as an employee for any company," and
Bloxson answered in the affinnative. Nonetheless, the prosecutor's prior question about
whether Bloxson was "charged with stealing " went beyond the scope of Bloxson's
testimony on direct examination.
If a prosecutor intentionally elicits or attempts to elicit inadmissible evidence, a new
trial may, be ordered if "the misconduct appears to be inexcusable and so serious and
prejudicial that the defendant's right to a fair trial is denied." State v. Steward, 645 N.W.2d
115, 12 1 (Minn. 200 2). But a new trial is unnecessary if the misconduct was harmless.
State v. Whitson, 876 N.W.2d 297, 304 (Minn. 2016). "Prosecutorial misconduct is
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harmless beyond a reasonable doubt if the jury's verdict was surely unattributable to the
misconduct." Id. ( quotation omitted).
In this case, we do not consider any prejudice arising from Bloxson's answer to the
prosecutor's appropriate question about whether there had been any complaints against him
at work. Bloxson admitted that there had been such complaints, thereby contradicting his
testimony on direct examination. We consider only the prejudice arising from the
prosecutor's question about whether he was, at the time of trial, "charged with stealing
from a former employer." Bloxson's argument is based on the premise that the prosecutor
informed the jury that the state had charged him with the criminal offense of theft. But the
question is not so explicit; the jurors may or may not have understood it in that way.
Bloxson did not answer the question because his attorney promptly objected and the district
court sustained the objection. In her closing argument, the prosecutor did not refer to either
a "charge" of "stealing" or to Bloxson's conflicting testimony about complaints against
him at work. The prosecutor did refer to evidence ofBloxson's prior conviction of assault,
which was admitted into evidence and was the subject of a limiting instruction. Bloxson's
prior conviction likely had more of an impact on his credibility than a question that might
have been understood to refer to a pending criminal charge. All of these circumstances
indicate that the prosecutor's improper question about being "charged with stealing" was
a minor and momentary part of the trial. We conclude beyond a reasonable doubt that the
jury's verdict was surely unattributable to the prosecutor's impermissible question. See id.
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B. Rebuttal Argument
Second, Bloxson argues that the prosecutor committed misconduct in her rebuttal
closing argument by referring to facts that are not in the record and by vouching for the
credibility of J.M.Y.
In Bloxson's attorney's closing argument, she challenged the reliability of J.M.Y.'s
testimony by stating:
You heard from [J.M.Y.] that something happened after my
opening, [the prosecutor] met with her. And you heard her
agree and say many of those details unfolded ... when she
spoke to [the prosecutor] .. .. It's convenient that after I got
up and said I was at a loss of words, that there really wasn't
much evidence, that all of a sudden there was a lot more detail
than before.
Bloxson's attorney later stated that one particular detail of the alleged incident "came up
only after [J.M.Y.] spoke to [the prosecutor] and was not in any of the previous inter views."
The attorney further noted that "months passed from June of 2019 until the trial began, and
then [J.M.Y.] met with [the prosecutor] after opening, and [the prosecutor] is not trained
in the protocol." Bloxson's attorney continued by arguing that certain facts included in
J.M.Y.'s trial testimony were not mentioned in her pre-trial statements and were not
disclosed until J.M.Y.'s trial testimony. Bloxson's attorney said that "the details were
added when she spoke to" the prosecutor. Finally, Bloxson's attorney stated, "I submit to
you that the details came out when they did because the evidence was being sandpapered
for you."
At the beginning of her rebuttal argument, the prosecutor replied to Bloxson's
attorney's argument as follows:
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So the first thing that I think it's very important to
respond to and to emphasize is that the assertion that I
sandpapered witnesses, planted evidence in the mind of a child,
tried to elicit false details from a kid during a trial preparation
meeting, suggesting to her what I wanted to hear, questioned
her in an inappropriate manner, or did anything inappropriate
or unethical is entirely untrue and unsupported. To make those
allegations in a courtroom is actually a very serious thing. And
if I had done anything improper ....
Bloxson's attorney objected, and the district court overruled the objection. The prosecutor
continued with her rebuttal argument by stating, "If I had done anything improper, the
judge would have given you an instruction about it, or the evidence would have been
excluded." Bloxson's attorney again objected, and the district court again overruled the
objection. The prosecutor resumed her rebuttal argument as follows:
It is not improper for a lawyer trying a criminal case
involving sexual abuse of a child to meet with that child before
testimony, it is not improper to go through the questions that
that lawyer plans to ask the child so that that child isn't coming
in to a foreign place, an unfamiliar setting, with no idea about
what she's going to be asked ....
There's nothing improper about that. Believe you me,
if there was, you would have heard. And if I'd done anything
improper in this case, that evidence wouldn't have come in.
It's completely nonnal, straightforward trial preparation ....
And there was nothing improper about it. And any
suggestion to the contrary is an attempt to inflame you, is an
attempt to make you think I did something shady.
Bloxson contends that the prosecutor's rebuttal argument was improper because
"[t]here was nothing in the record to suggest that the court reviewed the circumstances of
the prosecutor's meeting with J.M.Y. or that the court would have given an instruction or
excluded evidence if the prosecutor had done something improper." Bloxson also contends
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that the prosecutor's rebuttal argument was improper because "the prosecutor implied that
J.M.Y.'s statement was credible because if it had not been, the trial court would have
excluded the evidence."
"A prosecutor's closing argument should be based on the evidence presented at trial
and inferences reasonably drawn from that evidence." State v. De Wald, 463 N.W.2d 741,
744 (Minn. 1990). In this case, the evidence introduced at trial does not include specifics
about the conversations between J.M.Y. and the prosecutor before trial. Bloxson's attorney
asked the jury to infer that the prosecutor had improperly persuaded J.M.Y. to expand on
her pre-trial statements by adding details that did not reflect the truth. Having asked the
jury to draw such inferences, Bloxson cannot complain that the state asked the jury to draw
contrary inferences from the same evidentiary record.
The prosecutor's rebuttal argument also is justified by the fact that Bloxson's
attorney rather overtly challenged the propriety of the prosecutor's communications with
J.M.Y. In such a situation, a prosecutor is permitted to reply in some way. In determining
whether a prosecutor's reply was misconduct, the prosecutor's "remarks must be examined
within the context of the trial," which requires consideration of"defense counsel's conduct,
as well as the nature of the prosecutor's response." United States v. Young, 470 U.S. 1, 12,
105 S. Ct. 1038, 1044 (1985). Appellate courts generally are disinclined "to reverse
convictions where prosecutors have responded reasonably in closing argument to defense
counsel's attacks, thus rendering it unlikely that the jury was led astray." Id. Accordingly,
it is appropriate to "not only weigh the impact of the prosecutor's remarks, but must also
take into account defense counsel's opening salvo" such that "if the prosecutor's remarks
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were 'invited,' and did no more than respond substantially in order to 'right the scale,' such
cmmnents would not warrant reversing a conviction." Id. at 12"-13, 105 S. Ct. at 1045. In
the present situation, the prosecutor's rebuttal argument was an appropriate and
proportional reply to Bloxson's closing argument.
Bloxson contends in the alternative that the prosecutor improperly vouched for
J.M.Y.'s credibility. Whether a witness is credible or not credible is "strictly the domain
of the jury." State v. Blanche, 696 N.W.2d 351, 374 (Minn. 2005). Accordingly, a
prosecutor may not "vouch for the veracity of any particular evidence." State v. McArthur,
730 N.W.2d 44, 53 (Minn. 2007). Vouching occurs "when the government implies a
guarantee of a witness's truthfulness, refers to facts outside the record, or expresses a
personal opinion as to a witness's credibility." State v. Patterson, 577 N.W.2d 494, 497
(Minn. 1998) ( quotation omitted). A prosecutor may "argue that the state's witnesses were
worthy of credibility" but "may not express a personal opinion about the witnesses'
credibility." State v. Yang, 627N.W.2d 666, 679 (Minn. App. 2001) (citing State v. Porter,
526 N.W.2d 359, 364 (Minn. 1995)), review denied (Minn. July 24, 2001).
The challenged statements by the prosecutor were focused on the prosecutor's own
actions, not on J.M.Y. 's veracity. The prosecutor's purpose was to persuade the jury that
J.M.Y. was not lacking credibility as a result of her conversation with the prosecutor. The
prosecutor did not express her own personal opinion about J.M.Y.'s credibility. The
prosecutor simply did not vouch for the credibility of J.M.Y.'s testimony. See Yang, 627
N.W.2d at 679.
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Thus, Bloxson 1s not entitled to a new trial on the ground of prosecutorial
misconduct.
II. Upward Durational Departure
Bloxson also argues that the district court erred by granting the state's motion for
an upward durational departure from the presumptive sentencing range.
The Minnesota Sentencing Guidelines specify presumptive sentences for felony
offenses. Minn. Sent. Guidelines 2.C (2016). For any particular felony offense, the
presumptive sentence is "presumed to be appropriate for all typical cases sharing criminal
history and offense severity characteristics." Minn. Sent. Guidelines 1.B.13 (2016). A
district court "must pronounce a sentence ... within the applicable [presumptive] range
unless there exist identifiable, substantial, and compelling circumstances to support a
departure." Minn. Sent. Guidelines 2.D.l (2016). "Accordingly, a sentencing court can
exercise its discretion to depart from the guidelines only if aggravating or mitigating
circumstances are present and those circumstances provide a substantial[] and compelling
reason not to impose a guidelines sentence." State v. Soto, 855 N.W.2d 303, 308 (Minn.
2014) (quotations omitted) (citing State v. Best, 449 N.W.2d 426, 427 (Minn. 1989), and
Minn. Sent. Guidelines 2.D.1.). "Substantial and compelling circumstances are those
demonstrating that the defendant's conduct in the offense of conviction was sign ificantly
more or less serious than that typically involved in the commission of the crime in
question." State v. Hicks, 864 N.W.2d 153, 157 (Minn. 2015) (quotation omitted). In
reviewing a departure from the applicable sentencing range, this court generally applies an
abuse-of-discretion standard of review. Soto, 855 N.W.2d at 307-08.
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A district court may base an upward departure on one or more of the aggravating
factors identified by statute or by the sentencing guidelines, although the district court is
not limited to those factors. See Minn. Stat. § 244.10, subd. 5a(a), (c) (2016); Minn. Sent.
Guidelines 2.D.3 (2016). In this case, the jury found one aggravating factor: that Bloxson
was in a position of authority over J.M.Y. at the time he committed the offense. That fact
is recognized as an aggravating factor that may support an upward durational departure.
See State v. Carpenter, 459 N.W.2d 121, 128 (Minn. 1990); State v. Cermak, 344 N.W.2d
833, 839 (Minn. 1984); State v. Griffith, 480 N.W.2d 347, 351 (Minn. App. 1992), review
denied (Minn. Mar. 19, 1992); State v. Skinner, 450 N.W.2d 648, 654 (Minn. App. 1990),
review denied (Minn. Feb. 28, 1990).
Bloxson contends that an upward departure was improper because his offense "was
not more serious than the typical first-degree criminal sexual conduct offense." But the
evidence introduced at trial indicates that Bloxson's abuse of his position of authority
provided the district court with substantial and compelling reasons to depart. Bloxson was
in a position of authority over J.M.Y. because her mother entrusted Bloxson to watch and
care for her three children while she was at work. To facilitate the offense, Bloxson called
J.M.Y. into his bedroom, ostensibly for the purpose of talking to her, as a person in a
position of authority, about her misbehavior at school. Bloxson told J.M.Y. to lie on her
back and remove her clothes. While he was penetrating her, he said to her, "If you do bad
in school, bad things happen," or "Bad things have consequences," or words to that effect,
as if his sexual conduct was a proper punishment for her misbehavior. After the criminal
act was complete, Bloxson told J.M.Y. that no one would believe her if she were to tell
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others about the incident. Later that day, Bloxson told J.M.Y. that she was "off
punishment," thereby using his position of authority to conceal the offense. These facts
demonstrate that Bloxson abused his position of authority in committing the crime in a way
that makes his offense significantly more serious than the typical offense. Consequently,
Bloxson's abuse of his position of authority over J.M.Y. provides substantial and
compelling reasons to not impose a sentence in the presumptive range.
Bloxson contends that his offense was less serious than the typical first-degree
criminal-sexual-conduct offense because it was "an isolated, one-time incident." But that
was true as well in Carpenter, in which the defendant was a youth pastor who was
convicted of criminal sexual conduct based on one incident with a 14-year -old girl.
459 N.W.2d at 122-24. The district court sentenced the defendant to an upward departure
based on one aggravating factor: abuse of a position of trust and authority. Id. at 127. The
supreme court affinned the sentence. Id. at 128.
Bloxson also contends that his offense was not accompanied by "gratuitous
violence, extensive grooming, or multiple acts." But the absence of other aggravating
factors does not negate the presence of the aggravating factor found by the jury. Indeed,
the presence of a single aggravating factor may be sufficient to support an upward
departure. State v. Ayala-Leyva, 848 N.W.2d 546, 558 (Minn. App. 2014), review denied
(Minn. Aug. 11, 2015).
Thus, the district court did not err by granting the state's motion to impose an
upward durational departure.
Affirmed.
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