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This opinion is nonprecedential except as provided by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
A23-1897

State of Minnesota,
Respondent,

vs.

Russell James Bankey,
Appellant.

Filed November 4, 2024
Affirmed
Frisch, Judge

Mille Lacs County District Court
File No. 48-CR-22-105

Keith Ellison, Attorney General, Jacob Campion, Assistant Attorney General, St. Paul,
Minnesota; and

Corey Haller, Mille Lacs County Attorney, Milaca, Minnesota (for respondent)

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

Considered and decided by Smith, Tracy M., Presiding Judge; Frisch, Judge; and
Schmidt, Judge.
NONPRECEDENTIAL OPINION
FRISCH, Judge
In this direct appeal following a conviction for first-degree criminal sexual conduct,
appellant argues that the prosecutor committed plain-error misconduct during closing
2
argument by impermissibly vouching for the credibility of a witness . Because the state
satisfied its burden to establish that there is no reasonable likelihood that the alleged
misconduct had a significant effect on the jury’s verdict, we affirm.
FACTS
Respondent State of Minnesota charged appellant Russell James Bankey with
first-degree criminal sexual conduct pursuant to Minn. Stat. § 609.342, subd. 1(h)(iii)
(2008). The following evidence was received during Bankey’s jury trial.
Bankey is M.B.’s grandfather. He engaged in frequent sexual conduct with M.B.
beginning when she was around six years old until she was 12 or 13 , including touching
her vagina with his mouth and hands, penetrating her vagina with his mouth, hands, and
penis, and making M.B. touch his penis. M.B. told a friend about the sexual contact when
she was in sixth or seventh grade but “didn’t tell her much” because she was “scared.”
Sometime between 2018 and 2019, M.B. told a family member about the sexual conduct
and that “nobody knew.” Several months later, M.B. told the family member that Bankey
was the person who had committed the sexual conduct.
On August 10, 2021, when M.B. was 18 years old, she told her parents that Bankey
“molested” her. M.B.’s father called the police and reported that Bankey had engaged in
sexual contact with M.B. A police officer spoke to M.B. over the phone and received a
statement from her. Another officer met with M.B. and received a statement in which M.B.
“described digital vaginal contact,” “attempted penile penetration ,” and “oral vaginal
contact and oral penile contact.” On August 21, M.B. called Bankey and, unbeknownst to
him, recorded their conversation. During the call, Bankey acknowledged the sexual
3
conduct, apologized to M.B., and expressed concern that M.B. would tell someone what
happened and that if she did, he would “be in a lot of trouble.” At trial, the jury heard the
recording and reviewed a transcript of the call.
Bankey testified in his own defense and denied M.B.’s allegations. When
questioned about the recorded conversation, Bankey testified that his communication style
sometimes caused confusion, and that he wore hearing aids and misunderstood what M.B.
was asking him about on the call. Bankey also testified that he believed M.B. was dishonest
and that the touching referenced during the recorded call was about Bankey touching
M.B.’s knee.
The jury found Bankey guilty of first-degree criminal sexual conduct and
determined that M.B. was sexually penetrated in multiple ways—an aggravating
sentencing factor. The district court entered a conviction for the offense and sentenced
Bankey to 344 months’ imprisonment.
Bankey appeals.
DECISION
Bankey argues that the prosecutor committed misconduct during closing argument
by impermissibly vouching for M.B.’s credibility. Because Bankey did not object to th e
alleged misconduct at trial, we “review the prosecutor’s statements under a modified plain
error analysis.” State v. Davis, 982 N.W.2d 716, 726 (Minn. 2022). Under this analysis,
Bankey bears the burden to demonstrate an error that is plain. State v. Parker, 901 N.W.2d
917, 926 (Minn. 2017). “An error is plain if it was clear or obvious” and is typically
established where the prosecutor’s conduct “contravenes case law, a rule, or a standard of
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conduct.” State v. Ramey, 721 N.W.2d 294, 302 (Minn. 2006) (quotations omitted). If
Bankey establishes plain error, “the burden shifts to the S tate to demonstrate that [this]
error did not affect [his] substantial rights.” Parker, 901 N.W.2d at 926. “A plain error
affects a defendant’s substantial rights if it was prejudicial and affected the outcome of the
case.” Id. (quotation omitted). An error is prejudicial where “there is a reasonable
likelihood that the error had a significant effect on the jury’s verdict.” Id. (quotation
omitted). If the state does not satisfy its burden, we “consider whether the error should be
addressed to ensure fairness and the integrity of judicial proceedings.” Id.
Bankey argues that the prosecutor committed misconduct by vouching for M.B.’s
credibility during the initial closing argument and then again in rebuttal. A prosecutor
commits misconduct by “impl[ying] a guarantee of a witness’s truthfulness” or
“express[ing] a personal opinion as to a witness’s credibility.” State v. Martin, 773 N.W.2d
89, 106 (Minn. 2009) (quotation omitted). “While a prosecutor must not personally
endorse a witness’s credibility, the S tate may, in closing argument, argue that a witness
was or was not credible.” Id.; see also State v. Fields, 730 N.W.2d 777, 786 (Minn. 2007)
(discerning no prosecutorial misconduct where challenged statements were about “the
credibility of witnesses in the context of the evidence before the court and the conclusions
that can be drawn from that evidence”).
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During the state’s closing argument, the prosecutor addressed an anticipated
argument from Bankey that M.B. was lying based on inconsistencies in her testimony and
prior statements, stating:
If she is going to lie, why wouldn’t she lie better?
Right? Why wouldn’t she say, “Nobody was around when this
happened.” Why wouldn’t she just say, “You know, he only
used his fingers. That’s it.” Wouldn’t that be a better lie? Why
wouldn’t she say it was just from five to ten, some nice round
numbers? Why wouldn’t she say it only happened one or two
times? So not as to make this overblown. Right? She had a
long time to think about it, but that’s not what she did. She told
you what happened.
During the state’s rebuttal and in response to Bankey’s closing argument, the prosecutor
stated with regard to M.B. that “[a]ttorneys have an ethical duty to put people on the stand
that they believe will tell the truth.” Bankey argues that these statements amounted to
prosecutorial plain error, and the state concedes that the prosecutor plainly erred by
personally vouching for M.B.’s credibility in rebuttal. We assume without deciding that
both statements constitute prosecutorial plain error.
But we conclude that the state has satisfied its burden to establish that there is no
reasonable likelihood that the absence of the misconduct in question would have had a
significant effect on the jury’s verdict. See State v. Portillo, 998 N.W.2d 242, 251 (Minn.
2023). “To determine whether there is a reasonable likelihood that the prosecutor’s error
had a significant effect on the verdict,” we consider: (1) “the strength of the evidence
against the defendant,” (2) “the pervasiveness of the improper suggestions,” and
(3) “whether the defendant had an opportunity to (or made efforts to) rebut the improper
suggestions.” Id. at 251-52 (quotation omitted).
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The state’s evidence was strong. M.B. testified at length about the sexual conduct,
including detailed instances of abuse occurring throughout Bankey’s home and camper,
and when M.B. was on vacations with Bankey. The jury then heard the recorded phone
call between Bankey and M.B. During the call, Bankey apologized to M.B. multiple times
and acknowledged that he “did some dumb stuff” when M.B. was a child. When M.B.
stated that “[t]here was no reason to touch me as a child,” Bankey responded, “I understand,
I agree with you,” and that “it wasn’t [her] fault.” And additional witnesses testified that
M.B. had told them about the sexual conduct.
The misconduct was not pervasive. The identified vouching by the prosecutor was
limited to the above-described passages during closing arguments spanning 33 transcript
pages. And the prosecutor also reminded the jury during both the principal and rebuttal
argument that the jury was responsible for determining the credibility of witnesses.
Additionally, any improper suggestions by the prosecutor about M.B.’s credibility
were rebutted or mitigated by the defense. While Bankey did not have a specific
opportunity to respond to the vouching during rebuttal, our review of the closing argument
as a whole reveals that Bankey’s closing argument consisted of a fulsome defense of his
credibility and impeachment of M.B.’s credibility. See State v. Johnson, 616 N.W.2d 720,
728 (Minn. 2000) (“With respect to claims of prosecutorial misconduct arising out of
closing argument, we consider the closing argument as a whole rather than focus on
particular phrases or remarks that may be taken out of context or given undue prominence.”
7
(quotation omitted)). And the prosecutor blunted the impact of the witness vouching by
reminding the jury:
You get to make the determination on credibility. It’s
right there. The Judge read you all the rules, including
presumption of innocence, including proof beyond a
reasonable doubt, including credibility and what you get to
take into account on who to believe, because there’s two very
different stories. One is [M.B.’s] and one is [Bankey’s].
In sum, the state met its burden to show that there is no reasonable likelihood that
the prosecutor’s error had a significant effect on the verdict.1 See Portillo, 998 N.W.2d at
251.
Affirmed.

1 Even if the prosecutor’s error had a significant effect on the verdict, reversal is not
warranted to ensure the fairness or integrity of the judicial system. Bankey argues that if
we take no remedial action, the public is “likely to seriously question whether our court
system has integrity and generally offers accused persons a fair trial.” See Pulczinski v.
State, 972 N.W.2d 347, 356 (Minn. 2022). But Bankey offers no rationale as to how or
why public trust in the judicial system would be undermined in the absence of reversal.
Because any misconduct by the prosecutor was not pervasive, and the evidence of
Bankey’s guilt was otherwise strong, we need not address the error “to ensure the fairness
and the integrity of judicial proceedings.” See Parker, 901 N.W.2d at 926.