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This opinion is nonprecedential except as provided by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
A22-1194

State of Minnesota,
Respondent,

vs.

Gerald Floyd Crain, Jr.,
Appellant.

Filed July 31, 2023
Reversed and remanded
Wheelock, Judge

Otter Tail County District Court
File No. 56-CR-20-1459

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

Michelle Eldien, Otter Tail County Attorney, Fergus Falls, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Benjamin J. Butler, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Frisch, Presiding Judge; Cochran, Judge; and Wheelock,
Judge.
NONPRECEDENTIAL OPINION
WHEELOCK, Judge
In this direct appeal from convictions for criminal sexual conduct, appellant raises
three issues: (1) the prosecutor committed misconduct by misstating the presumption of
innocence; (2) the district court abused its discretion by admitting evidence of prior bad
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acts; and (3) the district court abused its discretion by allowing inadmissible expert
testimony. He also raises five issues in his pro se supplemental brief. Because the
prosecutor committed plain error prejudicing the appellant’s substantial rights and the error
impacts the fairness, integrity, and public reputation of judicial proceedings, we reverse
and remand for a new trial.
FACTS
Respondent State of Minnesota charged appellant Gerald Floyd Crain Jr. with three
counts of first-degree criminal sexual conduct under Minn. Stat. § 609.342, subd. 1(a), (g),
(h)(iii) (2018), and two counts of second-degree criminal sexual conduct under Minn. Stat.
§ 609.343, subd. 1(a), (g) (2018), following a report that he sexually abused his grandniece,
M.W. The state later dismissed one count of first-degree criminal sexual conduct.
In June 2020, a family member told M.W.’s parents that Crain had touched M.W.’s
cousin, K.G., on her genitals and buttocks. M.W.’s parents then asked M.W. if anything
inappropriate had happened when Crain visited their family the previous March. M.W.
stated that Crain had “touched [her] bottoms and licked.” M.W.’s parents reported the
abuse to law enforcement, and M.W. repeated the allegations in a forensic interview.
After the state filed criminal charges, the state sought to introduce evidence at trial
of other alleged misconduct from court files in Anoka and Sibley Counties. Crain faced
criminal charges in Anoka County based on K.G.’s allegations, and he previously had
received a stay of adjudication in Sibley County based on allegations of criminal sexual
conduct from 2005. Crain opposed the admission of this prior-bad-act evidence, also
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referred to as “Spreigl evidence.”1 The district court granted the state permission to present
the evidence with specific limitations, including that the state not refer to certain incidents
that were dissimilar to the alleged abuse of M.W.
Crain also filed a motion in limine to exclude or limit the expert testimony the state
planned to introduce at trial, including that of expert witness Barbara Kern Pieh. Kern Pieh
is a certified nurse-midwife and sexual-assault nurse examiner with more than 40 years of
healthcare experience and was the first sexual-assault nurse examiner in Minnesota to
specialize in child examinations. The district court determined that Kern Pieh’s testimony
was admissible regarding “the matters of delayed reporting and alleged victims’ reasons
for delaying any reporting” along with “any process of sexual abuse disclosure by alleged
victims as well as characteristics of a sexually abused child,” and it denied Crain’s motion.
The state called K.G. as a witness at trial, who testified that Crain had touched her
“crotch and butt.” The district court instructed the jury that this testimony was “offered for
the limited purpose of assisting you in determining whether the defendant committed those
acts with which the defendant is charged in the complaint”— the criminal sexual conduct
against M.W. J urors received instructions regarding the appropriate use of the evidence
before K.G. testified and again before their deliberations.
The state also called Kern Pieh, whose testimony focused on her experience working
with sexual-abuse victims, including her work with CornerHouse, a child-advocacy center

1 Evidence of other crimes or bad acts is known in Minnesota as “Spreigl evidence.” State
v. Kennedy, 585 N.W.2d 385, 389 (Minn. 1998) (citing State v. Spreigl, 139 N.W.2d 167
(Minn. 1965)).
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in Minneapolis. Kern Pieh answered questions about the types of responses a child M.W.’s
age would be expected to give to a forensic interviewer. The state also asked Kern Pieh to
explain the concept of grooming.
At the conclusion of the trial, the district court provided jury instructions, including
the following instruction regarding the presumption of innocence:
The defendant is presumed innocent of the charge or
charges made. This presumption remains with the defendant
unless and until the defendant has been proven guilty beyond a
reasonable doubt. . . . The burden of proving guilt is on the
State. The defendant does not have to prove innocence.

The prosecutor then delivered the state’s closing argument, in which he reviewed the
elements of the charged offenses and spoke about the witnesses’ credibility. During
Crain’s closing argument, his attorney advised the jury “not [to] waver from the law’s
demands upon the State to prove guilt beyond a reasonable doubt” and reminded the jury
that Crain “retains the presumption of innocence” until the state meets its burden of proof.
The prosecutor responded to this point in the state’s rebuttal argument:
As far as the presumption of innocence is concerned, as
soon as the State starts putting on witnesses and offering
evidence into—into the court record, that presumption of
innocence goes away. After the State rests its case, that
presumption of innocence, gone. When [M.W.] sat up here and
testified that [Crain] licked her bottom, presumption of
innocence is gone. If you believe her . . . you have to find the
defendant guilty.

Crain did not object to these statements.
The jury found Crain guilty of all four counts. The district court sentenced him to
160 months in prison on one count of first-degree criminal sexual conduct.
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Crain appeals.
DECISION
Crain argues that the prosecutor committed plain misconduct warranting a new trial
and that the district court abused its discretion by admitting Spreigl evidence and
expert-witness testimony about the common behaviors of child-sexual-abuse perpetrators.
The state argues that the prosecutor’s plain error did not affect Crain’s substantial rights
and that the district court did not abuse its discretion by admitting the Spreigl evidence and
the challenged expert-witness testimony. We agree with Crain’s prosecutorial-error claim
and address it first.
Crain did not object to the prosecutor’s statements during the state’s rebuttal closing
argument. Appellate courts review unobjected-to prosecutorial error under a modified
plain-error test. State v. Martin, 773 N.W.2d 89, 104 (Minn. 2009) (citing State v. Ramey,
721 N.W.2d 294, 302 (Minn. 2006)). The appellant bears the burden of satisfying the first
two prongs of the test to show that “an error was made that was plain.” Id. Subsequently,
“the burden shifts to the [state] to demonstrate that the error did not affect substantial
rights.” Id. If a plain error affected the appellant’s substantial rights, then we assess
“whether the error should be addressed to ensure fairness and the integrity of the judicial
proceedings.” Id.; see also Pulczinski v. State, 972 N.W.2d 347, 356 (Minn. 2022) (“When
the [appellant] satisfies these requirements [of the plain-error doctrine], an appellate court
may correct the error only when it seriously affects the fairness, integrity, or public
reputation of judicial proceedings.”).
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A. The prosecutor’s statements regarding the presumption of innocence
constituted plain error.

We first assess whether Crain demonstrated a plain error. See Martin, 773 N.W.2d
at 104. “An error is plain if it was ‘clear ’ or ‘obvious,’” and plain error may be
demonstrated “if the error contravenes case law, a rule, or a standard of conduct.” Ramey,
721 N.W.2d at 302 (quoting State v. Strommen, 648 N.W.2d 681, 688 (Minn. 2002)) .
Crain argues that the prosecutor misstated the presumption of innocence multiple times
during his rebuttal closing argument. In its brief, the state concedes that the prosecutor
committed plain error, citing Moore v. State, 945 N.W.2d 421, 434 (Minn. App. 2020)
(concluding that it was plain error for the prosecutor to state to the jury that “now that all
of the evidence is in, and as you begin deliberations, [the defendant’s] no longer entitled to
that presumption” of innocence), rev. denied (Minn. Aug. 11, 2020), but it does not
concede that the prosecutor engaged in misconduct.2
Few concepts are more central to our criminal -justice system than the presumption
of innocence. Our caselaw establishes that “[t]he presumption of innocence is a basic
component of the fundamental right to a fair trial.” State v. Bowles, 530 N.W.2d 521, 529
(Minn. 1995). Therefore, a misstatement of the presumption of innocence in a closing
argument is improper. See, e.g., State v. Bohlsen, 526 N.W.2d 49, 49-50 (Minn. 1994);

2 The state further asserts that because the modified plain-error standard applies to both
prosecutorial error and misconduct, State v. Epps, 964 N.W.2d 419, 423 n.4 (Minn. 2021),
the characterization of whether the prosecutor here engaged in error or misconduct is
immaterial to our resolution of the issue. We agree. Within the modified plain-error
framework, the question is whether the misconduct constitutes error that is “clearly
contrary to the law at the time of appeal.” State v. Dobbins, 725 N.W.2d 492, 513 (Minn.
2006) (quoting Johnson v. United States, 520 U.S. 461, 468 (1997)).
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State v. Jensen, 242 N.W.2d 109, 111 (Minn. 1976); Moore , 945 N.W.2d at 433-34;
Finnegan v. State, 764 N.W.2d 856, 863 (Minn. App. 2009), aff’d on other grounds,
784 N.W.2d 243 (Minn. 2010); see also State v. Thomas, 239 N.W.2d 455, 456-57 (Minn.
1976) (discussing the critical role of the presumption of innocence and the burden of proof).
Here, the prosecutor misstated the presumption of innocence and the state’s burden
of proof. Crain identifies specific statements the prosecutor made that contravene law,
including that “as soon as the State starts putting on witnesses and offering
evidence . . . [the] presumption of innocence goes away.” Although prosecutors have
“considerable latitude” in making a closing argument and the argument is not required to
be “colorless,” State v. Williams, 586 N.W.2d 123, 127 (Minn. 1998), “[m]isstatements of
the burden of proof are highl y improper and would, if demonstrated, constitute
prosecutorial misconduct,” State v. Hunt, 615 N.W.2d 294, 302 (Minn. 2000). We agree
with the parties that the prosecutor’s misstatements of the presumption of innocence and
the state’s burden of proof constitute plain error.
B. The plain error affected Crain’s substantial rights.
We next assess whether the state has shown that the plain error did not affect Crain’s
substantial rights. See Martin, 773 N.W.2d at 104. An error affects an appellant’s
substantial rights if “there is a reasonable likelihood that the error had a significant effect
on the jury’s verdict” and the error “affected the outcome of the case.” State v. Parker,
901 N.W.2d 917, 926 (Minn. 2017) (quotations omitted). The state’s burden is therefore
“to show that there is no reasonable likelihood that the absence of the misconduct in
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question would have had a significant effect on the jury.” Ramey, 721 N.W.2d at 302
(quotations omitted).
We consider three factors when determining whether prosecutorial error affected an
appellant’s substantial rights: “(1) the strength of the evidence against [the appellant];
(2) the pervasiveness of the erroneous conduct; and (3) whether [the appellant] had an
opportunity to rebut any improper remarks” at trial. State v. Peltier, 874 N.W.2d 792,
805-06 (Minn. 2016) (citing State v. Davis, 735 N.W.2d 674, 682 (Minn. 2007)).
The state contends that when we view the record in its entirety, as we must, it is
clear that the prosecutor’s closing argument only urged the jury to assess M.W.’s credibility
to find Crain guilty. The state argues that the misstatement was brief, the district court’s
jury instructions were sufficient to protect Crain from any risk of prejudice, an d the
evidence of Crain’s guilt was overwhelming. Crain contends that the error was prejudicial
because the presumption of innocence is fundamental, particularly in a case in which the
jury must make credibility determinations as between witnesses testifying to different
versions of what occurred. Crain posits that the question was not just whether the jury
believed M.W. or believed Crain, but whether the jury believed M.W. with the degree of
confidence necessary to overcome the presumption that Crain was innocent.
We are required to “consider the closing arguments in their entirety in determining
whether prosecutorial misconduct occurred,” State v. Vue, 797 N.W.2d 5, 15 (Minn. 2011),
and here, the content and context of the misstatements are concerning. The prosecutor
made misstatements about the presumption of innocence three times for emphasis: “As far
as the presumption of innocence is concerned, as soon as the State starts putting on
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witnesses and offering evidence into—into the court record, that presumption of innocence
goes away”; “After the State rests its case, that presumption of innocence, gone”; “When
[M.W.] sat up here and testified that [Crain] licked her bottom, presumption of innocence
is gone. If you believe her if you believe [another witness] if you believe [M.W.], you have
to find the defendant guilty.” It is notable that these misstatements were made in rebuttal,
immediately before jury deliberations, when Crain would have had to move the court for
an opportunity to respond3 and that the jury did not receive any corrective instruction about
the law after hearing the prosecutor’s misstatements. Thus, the last thing the jury heard
before deliberating was that the “presumption of innocence [was] gone” and that if the jury
believed the victim, “[it had] to find the defendant guilty”— which is the prosecutor asking
the jury to find the appellant guilty because he was no longer presumed innocent. This is
the backdrop against which we consider the substantial-rights factors identified above.
On the first factor— the strength of the evidence against Crain— the state’s evidence
was not especially strong; the case rested entirely on witness credibility as to multiple
witnesses’ testimonies. The presumption of innocence is particularly important when
credibility is in question because it is the jury’s responsibility to make credibility
determinations. See State v. Pendleton, 759 N.W.2d 900, 909 (Minn. 2009) (“Assessing
witness credibility and the weight given to witness testimony is exclusively the province
of the jury.”); State v. Trimble, 371 N.W.2d 921, 926 (Minn. App. 1985) (“The legal

3 Minnesota Rule of Criminal Procedure 26.03(k) provides that “[o]n motion, the court may
allow a defense rebuttal if the court finds the prosecution made a misstatement of law or
fact or an inflammatory or prejudicial statement in rebuttal.” Crain did not object to the
misstatements or move for a defense rebuttal, and the misstatements went uncorrected.
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standard for conviction is proof beyond a reasonable doubt, and that standard . . . depends
completely on the jury’s evaluation of whatever [evidence] is presented.”), rev. denied
(Minn. Oct. 11, 1985). Therefore, this factor suggests the error affected Crain’s substantial
rights.
On the second factor— the pervasiveness of the erroneous conduct—the prosecutor
misstated the presumption-of-innocence principle multiple times during his rebuttal
argument, and these misstatements were among the last things the jury heard before
deliberation. Although the misstatements appear in a small percentage of the closing
argument and rebuttal , the timing of the statements i s problematic—giving them more
significance than if they had occurred early in the closing argument— and the district court
did not provide corrective jury instructions after rebuttal that accurately stated the
presumption. In light of caselaw measuring the pervasiveness of misconduct by comparing
the amount of the error in a closing argument to the total length of the argument, see, e.g.,
Epps, 964 N.W.2d at 424 (considering that prosecutor’s error comprised only four
sentences of 28 pages of closing-argument transcript), we conclude that this factor does
not weigh in favor of or against the error affecting Crain’s substantial rights.
As to the final factor —whether Crain had the opportunity to rebut any improper
remarks at trial— Crain did not automatically have an opportunity to rebut the prosecutor’s
misstatements because they occurred during the state’s rebuttal closing argument. Cf. State
v. Cao, 788 N.W.2d 710, 718 (Minn. 2010) (reasoning that this factor weighed in favor of
a conclusion that prosecutorial error did not affect appellant’s substantial rights in part
because appellant rebutted the state’s claims in closing argument). As noted above, Crain
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would have had to move for an opportunity to respond and did not; as a result, the
misstatements regarding the presumption of innocence went unrebutted. Thus, this factor
weighs heavily in favor of a conclusion that the error affected Crain’s substantial rights.
For the foregoing reasons, we conclude that the state did not carry its burden to show
that there is no reasonable likelihood that the prosecutor’s plain-error misstatements about
the presumption of innocence did not affect the jury’s verdict. Therefore, the error affected
Crain’s substantial rights.
C. Crain is entitled to a new trial to ensure the fairness and integrity of
judicial proceedings.

When we determine that an appellant’s substantial rights were affected, we must
decide whether to reverse. And we reverse when “failing to correct the error would have
an impact beyond the current case by causing the public to seriously question whether our
court system has integrity and generally offers accused persons a fair trial.” Pulczinski,
972 N.W.2d at 356 (citing State v. Bustos, 861 N.W.2d 655, 663-64 (Minn. 2015) (“A plain
error affecting substantial rights warrants reversal only if the error must be addressed to
ensure the fairness, integrity, or public reputation of the judicial proceedings.”)).
Here, the error relates to the presumption of innocence, and that presumption —
alongside the requirement to prove guilt beyond a reasonable doubt—is central to our
judicial system. State v. Peterson, 673 N.W.2d 482, 486-87 (Minn. 2004). The timing of
the misstatements and the lack of rebuttal or any corrective instruction afterwar ds show
that the error is more than a “passing misdescription,” as the state argues. Rather, the error
here directly impacts the fairness, integrity, and public reputation of the judicial system.
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Because the presumption of innocence is a cornerstone of our criminal-justice system,
failure to reverse based on prejudicial misstatements of the presumption simply because
the error was not preserved at trial would undermine the fairness and integrity of judicial
proceedings.
In sum, we conclude that the state’s misstatements in its rebuttal closing argument
regarding the presumption of innocence prejudiced Crain and affected his substantial rights
and that the fairness and integrity of judicial proceedings are implicated by the error. We
therefore reverse Crain’s convictions and remand to the district court for a new trial.
Because we are reversing and remanding for a new trial, we do not reach appellant’s other
arguments for relief.
Reversed and remanded.