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This opinion is nonprecedential except as provided by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
A23-0907

State of Minnesota,
Respondent,

vs.

Robert Lester Caldwell, Jr.,
Appellant.

Filed July 29, 2024
Affirmed in part, reversed in part, and remanded
Johnson, Judge

Ramsey County District Court
File No. 62-CR-21-5436

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

John J. Choi, Ramsey County Attorney, Peter R. Marker, Assistant County Attorney, St.
Paul, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Steven P. Russett, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Johnson, Presiding Judge; Ross, Judge; and Reyes ,
Judge.
NONPRECEDENTIAL OPINION
JOHNSON, Judge
A Ramsey County jury found Robert Lester Caldwell Jr. guilty of first-degree
criminal sexual conduct. We conclude that (1) the district court did not err by excluding
some evidence concerning the victim ’s previous sexual conduct with Caldwell, (2) the
2
district court did not err by ruling that Caldwell could not cross-examine the victim about
whether she waived the statutory privilege protecting her therapy records, (3) Caldwell is
not entitled to a new trial on the ground of prosecutorial misconduct, (4) the district court
erred by entering two convictions because one offense is a lesser-included offense of the
other, (5) the district court did not err by denying Caldwell’s motion for a downward
dispositional departure, and (6) Caldwell’s pro se arguments do not warrant appellate
relief. Therefore, we affirm in part, reverse in part, and remand for resentencing.
FACTS
Caldwell was charged with and convicted of engaging in criminal sexual conduct
against a woman with whom he had an on-again-off -again sexual relationship for
approximately three years. Caldwell and S.D., who had met several years earlier, became
reacquainted and began a sexual relationship in early 2018. From then until 2021, they
regularly engaged in oral and vaginal sex, engaged in anal sex on a few occasions, and
often engaged in what they both characterized as “rough sex.”
S.D. testified at trial that, with the benefit of hindsight, her relationship with
Caldwell was not a good one. She testified that Caldwell frequently belittled, demeaned,
and manipulated her, and sometimes cheated on her, but that she nonetheless wanted to
continue the relationship with him, believing that she was at fault and hoping that he would
change. She also testified that Caldwell frequently was angry at her and that, to assuage
his anger, she tried to please him by making herself available for se x, especially sexual
activities that he preferred. To facilitate their sexual relationship, she sometimes sent him
explicit text messages, several of which were introduced into evidence.
3
In August 2021, S.D. met and talked with T.H., whom S.D. knew had previously
been in a sexual relationship with Caldwell that overlapped with S.D.’s sexual relationship
with Caldwell. T.H. told S.D. that she no longer was in a sexual relationship with Caldwell.
On August 30, 2021, Caldwell and S.D. exchanged text messages in which they
agreed to meet at an apartment belonging to one of Caldwell’s friends. S.D. testified about
what happened at the apartment as follows. After she arrived at the apartment, she sat on
Caldwell’s lap. Caldwell said that he was mad at her, without saying why. Caldwell
pushed her off his lap so that she was sitting on the floor between his legs. Caldwell
removed his pants and told her to “giv[e] him head.” S.D. began doing so. Caldwell then
said that he was mad at S.D. because she had talked to T.H. S.D. began to cry. She asked
Caldwell why he wanted to engage in oral sex with her if he was mad at her. Caldwell
responded by saying that he was “trying to see if [she] was worth keeping around for
anything.” S.D. told Caldwell that she did not want to continue, but Caldwell responded
by saying that he “did not care” and by pushing her head down to his crotch. S.D. said, “I
don’t want to do this,” while continuing to cry, and Caldwell again said that he did not
care.
Caldwell then stood up and pushed S.D. onto the floor and on her back. Caldwell
straddled her, grabbed her throat, and inserted his penis into her mouth. S.D. continued to
cry and squirmed in an attempt to get Caldwell off her, but he continued and again said that
he did not care.
Caldwell next picked up S.D., who continued to cry, and placed her on a bed so that
she was on her hands and knees. Caldwell inserted his penis into her vagina. Caldwell
4
then inserted his penis into her anus, without any lubricant, even though they had always
used a lubricant in the past when engaging in anal sex. S.D. testified that anal sex without
lubrication “really hurt.” She told Caldwell that she did not want to engage in anal sex
without lubrication. Caldwell told her to be quiet and that he did not care, and he continued
to engage in anal sex.
Caldwell next forced S.D . to engage in oral sex again. S.D. continued to cry and
asked Caldwell to stop, but he continued. Caldwell ejaculated in S.D.’s mouth. Because
it was time for Caldwell to go to work, both stood up to leave, and Caldwell said that he
would call her that evening.
S.D. got dressed, left the apartment, went to her car, and called her best friend and
said that Caldwell had raped her. S.D. went to a hospital for a sexual-assault examination.
She texted two other friends about the incident while at the hospital. S.D. reported the
incident to law enforcement later that day.
In late September 2021, the state charged Caldwell with first-degree criminal sexual
conduct using force or coercion and causing personal injury, in violation of Minn. Stat.
§ 609.342, subd. 1(e)(i) (2020). The state later amended the complaint to add charges of
third-degree and fourth-degree criminal sexual conduct using force or coercion, in violation
of Minn. Stat. §§ 609.344, subd. 1(c), .345, subd. 1(c) (2020), based on the same alleged
conduct. The state voluntarily dismissed the fourth-degree charge immediately before trial.
The case was tried to a jury on three days in November 2022. The state called seven
witnesses. S.D. testified to the facts stated above, among other things. Caldwell testified
in his own defense. He admitted that he and S.D. engaged in oral, vaginal, and anal sex on
5
August 30, 2021, but stated that it was consensual and that it was typical of their prior
sexual encounters.
Caldwell also called T.H., who testified that she was in a relationship with Caldwell
during some of the time period in which Caldwell was in a relationship with S.D. T.H.
also testified that S.D. shared with her a video-recording of text messages between S.D.
and Caldwell to prove the existence of her relationship with Caldwell and that T.H. passed
the video-recording along to Caldwell.
The jury found Caldwell guilty on both the first-degree charge and the third-degree
charge. The district court imposed a sentence of 144 months of imprisonment. Caldwell
appeals.
DECISION
I. Victim’s Previous Sexual Conduct
Caldwell first argues that the district court erred by denying part of his motion for
leave to introduce evidence of S.D.’s previous sexual conduct. He argues that the district
court’s ruling violated his constitutional right to present a complete defense. This court
generally applies an abuse-of-discretion standard of review to a district court’s evidentiary
rulings. State v. Hallmark, 927 N.W.2d 281, 291 (Minn. 2019). This standard of review
applies even if an appellant argues that an evidentiary ruling is a violation of his
constitutional rights. State v. Wenthe, 865 N.W.2d 293, 306 (Minn. 2015).
The applicable law is found in both a statute and a rule of evidence. The statute
generally provides that, in a prosecution for criminal sexual conduct, “evidence of the
victim’s previous sexual conduct shall not be admitted nor shall any reference to such
6
conduct be made in the presence of the jury, except by court order.” Minn. Stat. § 609.347,
subd. 3 (2022). Such evidence “can be admitted only if the probative value of the evidence
is not substantially outweighed by its inflammatory or prejudicial nature and only in”
certain circumstances. Id.
When consent of the victim is a defense in the case, the
following evidence is admissible:

(i) evidence of the victim’s previous sexual conduct
tending to establish a common scheme or plan of similar sexual
conduct under circumstances similar to the case at issue. In
order to find a common scheme or plan, the judge must find
that the victim made prior allegations of sexual assault which
were fabricated; and

(ii) evidence of the victim’s previous sexual conduct
with the accused.

Id., subd. 3(a).
Substantially similar language exists in a rule of evidence. See Minn. R. Evid.
412(1), (1)(A) ; see also Minn. R. Evid. 412, advisory committee comments. Both the
statute and the rule are frequently called “the rape-shield law.” Wenthe, 865 N.W.2d at
306. The general purpose of the rape-shield law is to make evidence of the complainant’s
sexual history irrelevant in most cases, but such evidence may be relevant and admissible
if “admission is constitutionally required by the defendant’s right to due process, his right
to confront accusers, or his right to offer evidence in his own defense.” Id. at 306 (quotation
omitted).
This issue first arose i n February 2022, when Caldwell filed a motion for leave to
introduce evidence of S.D.’s previous sexual conduct. See Minn. Stat. § 609.347, subd. 4
7
(specifying procedures for introduction of evidence of previous sexual conduct); Minn. R.
Evid. 412(2) (same). Caldwell submitted a confidential offer of proof, which referred to
four categories of evidence: (1) the existence of an on-again- off-again sexual relationship
between Caldwell and S.D., including the nature of their sexual activities; (2) numerous
explicit text messages that S.D. sent to Caldwell; (3) numerous explicit photographs of
S.D. that she texted to Caldwell; and (4) the fact that Caldwell and S.D. had engaged in
“threesomes” with two other persons, whom the defense sought to call as witnesses to
testify about “the nature of the sexual intercourse and whether [S.D.] expressed a
preference for rough sex during the threesome.” In a memorandum of law, Caldwell stated
that the defense would argue at trial that S.D. had consented to sexual penetration on
August 30, 2021.
The district court conducted a hearing on Caldwell’s motion in March 2022. In June
2022, the district court filed an order in which it granted Caldwell’s motion with respect to
the first and second categories of evidence and denied the motion with respect to the third
and fourth categories. With respect to the fourth category—the only category at issue on
appeal—the district court first reasoned that the rape-shield provision on which Caldwell
relies does not apply because it is limited to evidence of the victim’s previous sexual
conduct “with the accused” but does not encompass the victim’s previous sexual conduct
with the accused and another person. In the alternative, the district court reasoned that the
probative value of the evidence was low, that “the prejudicial nature of the threesomes . . .
would humiliate the alleged victim and . . . would be too inflammatory,” and that the
prejudicial nature of the evidence “highly outweighs” its limited probative value.
8
Five months later, during voir dire, Caldwell asked the district court to reconsider
the earlier order (which had been made by a different judge) with respect to the fourth
category of evidence of the victim’s previous sexual conduct. Caldwell argued that the
district court earlier had misinterpreted the rape-shield law and also had erred by reasoning
that prejudice would arise from humiliation as opposed to persuasion by illegitimate means.
Caldwell argued that he wished to rebut S.D.’s anticipated testi mony that Caldwell had
engaged in coercive conduct in the past by presenting the testimony of two persons who
would testify that, on prior occasions, they had observed Caldwell and S.D. engaging in
sexual conduct that was not coercive. Caldwell’s attorney asserted that the two persons
could give such testimony without referring to the existence of a threesome. The district
court declined to change the earlier ruling, reasoning that the evidence had limited
probative value because Caldwell’s purpose— to show that S.D. preferred or was not averse
to “rough sex”—was not responsive to the state’s allegations.
On appeal, Caldwell challenges both reasons stated by the district court in its June
2022 order: first, that the evidence does not refer to S.D.’s previous sexual conduct “with
the accused ” and, second, that the probative value of the evidence is substantially
outweighed by its inflammatory or prejudicial nature. In response, the state first notes that
Caldwell does not cite any caselaw for the proposition that section 609.347, subdivision
3(a)(ii), and rule 412(1)(A)(ii) apply to evidence of a complainant’s previous sexual
conduct with the accused and a third person. The state also argues— with greater emphasis
and at greater length— that the district court did not abuse its discretion by ruling that the
9
probative value of the evidence was substantially outweighed by its inflammatory or
prejudicial nature.
We need not determine whether the district court properly interpreted section
609.347, subdivision 3(a)(ii), and rule 412(1)(A)(ii) to not apply to evidence of a
complainant’s previous sexual conduct with the accused and a third person. Even if that
part of the ruling was erroneous, the district court did not err in its alternative reasoning.
As the state argues, there was a considerable amount of other evidence that, on prior
occasions, S.D. willfully engaged in “rough sex” with Caldwell. S.D. testified that, more
often than not, she and Caldwell engaged in rough sex. On the other hand, Caldwell did
not characterize the sexual activity on August 30, 2021, as being rough. Furthermore, and
most importantly, Caldwell’s conviction rests primarily on evidence that he engaged in
sexual penetration without S.D.’s consent. S.D. testified that on August 30, 2021, she did
not consent and told Caldwell to stop but that he did not do so. For these reasons, the
evidence of S.D.’s previous sexual conduct with Caldwell was low in probative value,
which supports the district court’s reasoning that the probative value of the evidence was
substantially outweighed by its inflammatory or prejudicial nature.
Thus, the district court did not err by denying Caldwell’s motion for leave to
introduce the fourth category of evidence of S.D.’s previous sexual conduct.
II. Victim’s Therapy Records
Caldwell also argues that the district court erred by sustaining the state’s objection
during Caldwell’s cross-examination of S.D. to a question concerning the records of her
visits with a therapist.
10
Before trial, Caldwell filed a motion for in camera review of S.D.’s therapy records.
He later withdrew the motion in light of the then-recent opinion in In re Hope Coalition,
977 N.W.2d 651 (Minn. 2022), in which the supreme court held that the sexual-assault-
counselor privilege in Minnesota Statutes section 595.02, subdivision 1(k), prevents a
criminal defendant from obtaining disclosure or in camera review of records of therapy
with a sexual-assault-counselor without the consent of the person who sought therapy. Id.
at 657-62.
At trial, S.D. testified that she texted and spoke with her therapist about a 2019
incident in which she and Caldwell engaged in sex. The state did not ask S.D. about the
therapy itself, either with respect to the 2019 incident or the 2021 incident at issue in this
case. On cross-examination, Caldwell asked S.D. whether the prosecutors had asked her
to sign a waiver “so that that information could be used in this trial. ” The state objected,
and the district court sustained the objection after a sidebar conference. The district court
reasoned that S.D. was not obligated to sign the waiver and that her refusal to waive the
privilege should not allow Caldwell to question the credibility of her testimony.
In Caldwell’s motion for a new trial, he argued that the district court erred by
prohibiting cross-examination about the therapy records because it prevented him from
testing S.D.’s credibility. The district court denied the motion by reiterating its earlier
reasoning and by stating that S.D. “testified to just about anything I can imagine would be
coming out in a therapeutic intervention.” The district court did not cite any legal authority,
other than Hope Coalition, in connection with its ruling. It appears that the district court
reasoned that the information sought by Caldwell either was not relevant or had little
11
probative value and that any probative value was outweighed by the potential for unfair
prejudice. See Minn. R. Evid. 401-403.
Caldwell contends that the district court erred on the ground that the question did
not implicate or undermine the sexual-assault-counselor privilege because he did not
attempt to elicit information about the therapy itself but only the fact that she did not waive
the privilege and allow the disclosure of the records of her therapy sessions. Caldwell also
contends that the district court erred on the ground that he should be allowed to ask the jury
to draw an adverse inference from S.D.’s reliance on the statutory privilege. The district
court’s ruling is consistent with the purpose of the statutory privilege and the holding in
Hope Coalition. A contrary ruling might chill the assertion of the privilege and subject a
witness to unfair attacks on the witness’s credibility. Caldwell further contends that the
district court erred on the ground that the state opened the door by asking S.D. questions
about her therapy. But the state did not elicit testimony about the substance of S.D.’s
therapy sessions, so the state did not gain an unfair advantage due to S.D.’s decision to not
disclose her therapy records. For these reasons, the district court did not abuse its discretion
in sustaining the state’s objection.
Thus, the district court did not err by excluding evidence concerning whether S.D.
waived the statutory privilege protecting the records of her therapy sessions.
III. Prosecutorial Misconduct
Caldwell next argues that the prosecutor engaged in misconduct on four occasions
during the trial.
12
The right to due process of law includes the right to a fair trial, and the right to a fair
trial includes the absence of prosecutorial misconduct. Spann v. State, 704 N.W.2d 486,
493 (Minn. 2005); State v. Ferguson, 729 N.W.2d 604, 616 (Minn. App. 2007), rev. denied
(Minn. June 19, 2007). “Prosecutors have an affirmative obligation to ensure that a
defendant receives a fair trial.” State v. Jones, 753 N.W.2d 677, 686 (Minn. 2008)
(quotation omitted).
The state concedes that the prosecutor engaged in misconduct on two of the four
occasions identified by Caldwell. First, the state concedes that the prosecutor engaged in
misconduct by twice eliciting testimony that, on one occasion between 2019 and 2021,
Caldwell bit S.D.’s breast during sex, even though the district court previously had ruled
that that evidence was inadmissible. The prosecutor explained that she had instructed the
state’s witnesses to not mention that incident, and the district court found that the attempt
to introduce inadmissible evidence was unintentional.
Second, the state concedes that the prosecutor engaged in misconduct by eliciting
hearsay testimony concerning the reasons why a witness was not available for trial.
Specifically, S.D. testified that, immediately after the incident, s he called her best friend
and said that Caldwell had raped her. The prosecutor continued by asking S.D. where the
friend was at the time of trial and whether the friend was available to testify. S.D. stated
that the friend was living abroad and was unable to return to Minnesota at that time. The
state asserts that the prosecutor’s act of eliciting that evidence is “probable error.”
In addition, Caldwell contends that the prosecutor engaged in misconduct on two
other occasions. His third contention is that the prosecutor engaged in misconduct by
13
eliciting evidence that inaccurately suggested that Caldwell had used surreptitious means
to gain access to S.D.’s cell phone and obtain a video-recording of text messages between
him and S.D. Caldwell contends that the prosecutor violated the principle that the state
may not “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. Harris, 521 N.W.2d 348, 354 (Minn. 1994) (quotation
omitted). The prosecutor may not have anticipated S.D.’s testimony because the prosecutor
asked a relatively broad question. For that reason, we are unable to conclude that the
prosecutor engaged in misconduct with respect to this issue. Furthermore, Caldwell’s
attorney later elicited evidence that S.D. had given the video-recording to T.H. and that
T.H. had passed it along to Caldwell. Caldwell’s attorney effectively rebutted any
lingering suggestions in closing argument.
Caldwell’s fourth contention is that the prosecutor improperly impeached him with
statements in a police report that was prepared by an officer who did not testify at trial.
Caldwell objected, and the district court sustained the objection. The state contends that,
despite the district court’s ruling, the prosecutor’s attempt to impeach Caldwell is justified
by caselaw stating that a prosecutor may impeach a witness with the statement of a non -
testifying third party so long as the impeachment is not “simply an attempt by the
prosecutor to use innuendo.” State v. Ostlund, 416 N.W.2d 755, 761-762 (Minn. App.
1987) (quoting State v. Stofflet, 281 N.W.2d 494, 497 (Minn. 1979)), rev. denied (Minn.
Feb. 24, 1988). Caldwell acknowledges this caselaw but asserts that it is no longer good
law in light of State v. Scales, 518 N.W.2d 587 (Minn. 1994). But Caldwell has not
14
identified any caselaw expressly overruling Ostlund or Stofflet. For that reason, we are
unable to conclude that the prosecutor engaged in misconduct with respect to this issue.
The state argues that Caldwell is not entitled to a new trial for the two instances of
prosecutorial misconduct that are conceded. Whether objected-to prosecutorial
misconduct deprived the defendant of a fair trial is determined according to a two-tier
approach. State v. McDaniel, 777 N.W.2d 739, 749 (Minn. 2010). If “the case involves
less serious prosecutorial misconduct, [the court examines] whether the misconduct likely
played a substantial part in influencing the jury to convict.” Id. (quotation omitted). If the
case involves more serious misconduct, courts will reverse “unless the misconduct is
harmless beyond a reasonable doubt.” Id. The state contends that the conceded misconduct
falls in the less-serious category. Caldwell does not dispute the state’s argument.
The evidence that Caldwell once bit S.D.’s breast might have placed him in a bad
light. But Caldwell’s conduct in that incident did not resemble Caldwell’s conduct on
August 30, 2021. In addition, the district court gave the jury a curative instruction with
respect to the first mention of biting, and Caldwell declined a curative instruction with
respect to the second. We presume that the jury followed the district court’s curative
instructions and disregarded this evidence. See State v. Steward , 645 N.W.2d 115, 122
(Minn. 2002). The unavailability of S.D.’s best friend to testify at trial does not appear to
have had any impact on the verdict. Two other witnesses testified that S.D. texted them
about this incident soon afterward. With respect to both instances of conceded misconduct,
the district court sustained Caldwell’s objection. Accordingly, it appears unlikely that
15
prosecutorial misconduct played a substantial part in influencing the jury to convict. Thus,
Caldwell is not entitled to a new trial due to prosecutorial misconduct.
Caldwell also argues that he is entitled to a new trial on the ground of cumulative
errors relating to both prosecutorial misconduct and the district court’s evidentiary rulings.
The cumulative-error rule applies if an appellant establishes two or more errors, none of
which individually requires reversal but which have the cumulative effect of denying the
appellant a fair trial and requiring a new trial. State v. Jackson, 714 N.W.2d 681, 698
(Minn. 2006); State v. Penkaty, 708 N.W.2d 185, 200 (Minn. 2006). But we have
concluded that the district court did not err in its evidentiary rulings. See supra parts I-II.
Because we have concluded that there is only one error, prosecutorial misconduct, the
cumulative-error rule does not apply. See State v. Mayhorn, 720 N.W.2d 776, 791-792
(Minn. 2006) (reversing and remanding for new trial based on combination of multiple
evidentiary errors and multiple incidents and types of prosecutorial misconduct).
IV. Multiple Convictions
Caldwell next argues, in the alternative, that the district court erred by entering
convictions on both count 1 and count 2 on the ground that the latter offense is included in
the former offense.
A criminal defendant “may be convicted of either the crime charged or an included
offense, but not both.” Minn. Stat. § 609.04, subd. 1 (2022). Caldwell contends that count
2 is an included offense because it is a “lesser degree of the same crime” charged in count
1 and because it is a “ crime necessarily proved if the crime charged [in count 1] were
proved.” See i d., subds. 1(1), 1(4). In determining whether an offense is an “included
16
offense” under section 609.04, courts examine “the elements of the offense instead of the
facts of the particular case.” State v. Bertsch, 707 N.W.2d 660, 664 (Minn. 2006). This
court applies a de novo standard of review to the application of section 609.04. State v.
Chavarria-Cruz, 839 N.W.2d 515, 522 (Minn. 2013).
The state concedes that the offense in count 2 is a lesser-included offense and that
the district court erred by entering convictions on both count 1 and count 2. But the parties
take slightly different positions concerning the appropriate appellate remedy. Caldwell
asks this court to vacate the conviction on count 2 and remand to the district court with
instructions to issue an amended sentencing order. The state asks this court to vacate the
conviction on count 2 without remanding. Consistent with this court’s customary remedy,
we reverse the entry of the conviction on count 2 and remand to the district court with
instructions to vacate the conviction on count 2 while leaving the adjudication of guilt
intact and to issue an amended warrant of commitment reflecting a single conviction on
count 1. See State v. Bonkowske, 957 N.W.2d 437, 443-44, 446 (Minn. App. 2021); see
also State v. Jones, No. A23-0950, 2024 WL 3024993, at *3 (Minn. App. June 17, 2024);
State v. Skinaway, No. A19-1324, 2020 WL 1910179, at *1, 5 (Minn. App. Apr. 20, 2020);
State v. Rogers, No A17-1373, 2018 WL 3716086, at *2 (Minn. App. Aug. 6, 2018); Minn.
R. Civ. App. P. 136.01, subd. 1(c) (stating that “nonprecedential opinions may be cited as
persuasive authority”).
V. Motion for Downward Dispositional Departure
Caldwell next argues, again in the alternative, that the district court erred by denying
his motion for a downward dispositional departure and imposing the presumptive sentence.
17
The Minnesota Sentencing Guidelines prescribe presumptive sentences for felony
offenses. Minn. Sent’g Guidelines 2.C (2022). For any particular offense, the guidelines
sentence is “presumed to be appropriate for all typical cases sharing criminal history and
offense severity characteristics.” Minn. Sent’g Guidelines 1.B.13 (2022). Accordingly, 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’g Guidelines 2.D.1 (2022).
If a district court departs from the presumptive sentence, the district court is required
to state the reason or reasons for the departure. Minn. Sent’ g Guidelines 2.D.1.c (2022).
But if the district court does not depart, the district court is not required to state reasons for
imposing a presumptive sentence. State v. Johnson, 831 N.W.2d 917, 925 (Minn. App.
2013), rev. denied (Minn. Sept. 17, 2013); State v. Van Ruler, 378 N.W.2d 77, 80 (Minn.
App. 1985). This court applies an abuse- of-discretion standard of review to a district
court’s denial of a defendant’s motion for a downward departure. State v. Bertsch, 707
N.W.2d 660, 668 (Minn. 2006). Only in a “rare case ” will we reverse a district court’s
imposition of a presumptive sentence. Id.; State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981).
Before sentencing, Caldwell moved for either a downward dispositional departure
or a downward durational departure. He argued in a memorandum that he is particularly
amenable to probation because of his age, his lack of criminal history, his remorse, his
cooperation, his attitude, and his support from family and friends. His attorney repeated
those arguments at the sentencing hearing. The district court stated that it had reviewed
the motion and the relevant caselaw and factual materials. The district court referred to the
18
report of a psycho-sexual examination, which discussed Caldwell’s need for services. The
district court denied the motion after stating, “I do not find . . . that there are substantial or
compelling reasons . . . for a dispositional departure.”
On appeal, Caldwell reiterates the arguments that he presented to the district court.
He has not established that the district court abused its discretion in finding that there are
no substantial or compelling reasons for a downward dispositional departure. Thus, the
district court did not err by denying Caldwell’s motion for a downward dispositional
departure and imposing a presumptive sentence.
VI. Pro Se Arguments
Caldwell has filed a pro se supplemental brief in which he makes four additional
arguments for relief.
First, Caldwell argues that the district court erred by not imposing sanctions on the
state for its alleged failure to respond to Caldwell’s discovery requests seeking contact
information for all persons whom the state intended to call as witnesses. The state argues
in response that it served Caldwell with a witness list by the court-ordered deadline and
that Caldwell has not established that he was prejudiced by any violation of a discovery
rule. Caldwell refers to two persons whom the state called as witnesses at trial. Both
witnesses are friends of S.D. who testified about their communications with her and about
text messages that the state introduced into evidence. Caldwell has offered nothing more
than speculation that his trial attorney was prejudiced by the lack of a more detailed or
more timely disclosure by the state. Caldwell has not established prejudicial error arising
from a discovery violation. See State v. Palubicki, 700 N.W.2d 476, 489 (Minn. 2005).
19
Second, Caldwell argues that the district court erred by admitting testimony of the
state’s forensic analyst concerning the results of an alcohol-concentration test of S.D.’s
urine, which the forensic analyst had not analyzed. Caldwell argues that the admission of
this testimony violated his Sixth Amendment right to confront his accusers. The state
responds that Caldwell did not object to the testimony at trial. Consequently, we review
only for plain error. See Minn. R. Crim. P. 31.02; State v. Griller, 583 N.W.2d 736, 740
(Minn. 1998). Caldwell does not explain how the testimony about the test result, which
was negative for alcohol, affected his substantial rights. Caldwell has not established
reversible plain error in the admission of the forensic analyst’s testimony.
Third, Caldwell argues that he received ineffective assistance of counsel because
his trial attorney did not object to the above- described testimony of the forensic analyst.
To establish ineffective assistance of counsel, Caldwell must show, first, that his trial
attorney’s performance was below an objective standard of reasonableness and, second,
that there is a reasonable probability that, but for his attorney’s poor performance, the result
of the proceedings would have been different. See Strickland v. Washington, 466 U.S. 668,
687 (1984). Again, Caldwell does not explain how the result of the proceedings would
have been different if his trial attorney had objected to the forensic analyst’s testimony.
Caldwell is not entitled to a new trial on the ground of ineffective assistance of counsel.
Fourth, Caldwell argues that the prosecutor made improper comments in closing
argument that belittled his defense. Caselaw provides that a prosecutor may not denigrate
or belittle a particular type of defense in the abstract. See State v. Griese, 565 N.W.2d 419,
428 (Minn. 1997); State v. Williams, 525 N.W.2d 538, 549 (Minn. 1994); State v. Salitros,
20
499 N.W.2d 815, 818 (Minn. 1993). But the state is free to make arguments that are based
on the evidence presented at trial. See State v. MacLennan, 702 N.W.2d 219, 236 (Minn.
2005). In this case, the comments about which Caldwell complains are arguments based
on evidence that was introduced at trial. Caldwell is not entitled to a new trial on the
ground that the prosecutor made comments belittling the defense.
Thus, Caldwell is not entitled to appellate relief on any of his pro se arguments.
Affirmed in part, reversed in part, and remanded.