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This opinion is nonprecedential except as provided by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
A24-1927

State of Minnesota,
Respondent,

vs.

Ajee Arylce King,
Appellant.

Filed January 20, 2026
Affirmed
Slieter, Judge

Hennepin County District Court
File No. 27-CR-21-19250

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

Mary F. Moriarty, Hennepin County Attorney, Nicole Cornale, Assistant County Attorney,
Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Jennifer Workman Jesness,
Assistant Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Smith, Tracy M., Presiding Judge; Slieter, Judge; and
Harris, Judge.
NONPRECEDENTIAL OPINION
SLIETER, Judge
In this direct appeal from the judgment of conviction for second-degree criminal
sexual conduct, appellant argues that the district court plainly erred by violating the
law-of-the-case doctrine and by admitting prejudicial relationship evidence and that the
2
prosecutor committed prosecutorial error during his closing -argument rebuttal by
misstating the law and evidence, vouching for the truthfulness of witnesses, disparaging
the defense, and inflaming the passions and prejudices of the jury. Because we conclude
that the district court did not plainly err in its application of the law by admitting
relationship evidence and the prosecutor did not commit prosecutorial error, we affirm.
FACTS
This case arises from allegations that appellant A’jee Arylce King1 inappropriately
touched his girlfriend’s niece, D.H., on the butt and breast while she was in bed in their
home. Respondent State of Minnesota charged King with second-degree criminal sexual
conduct in violation of Minn. Stat. § 609.343, subd. 1(a) (2018), in connection with this
event. At trial, King argued that D.H. fabricated the allegations so that she could live with
a different family member who was less strict.
King had two jury trials, the first of which ended in a mistrial. Following the jury’s
guilty verdict in the second trial, the district court convicted King and imposed a 36-month
sentence, execution of which was stayed for three years with probationary conditions.
Background Facts
The victim, D.H., and her sister, K.H., lived in Minneapolis for several years with
their aunt. Their aunt’s boyfriend, King, and the couple’s two children also lived in the
home with them. Around 2019 or 2020, King entered D.H. and K.H.’s shared bedroom.
King placed his hand under D.H.’s dress, touched her butt over her underwear, and

1 In appellant’s brief to this court, his first name is spelled “A’jee” with an apostrophe. We
use that spelling of his name even though it differs from the spelling in the case caption.
3
squeezed. D.H. adjusted herself by rolling over and fixing the covers to deter King. After
leaving the room King returned, pulled the covers down, reached under D.H.’s dress with
his hand, and touched and squeezed her left breast. King left the bedroom and closed the
door. K.H. observed this conduct. The girls told their aunt about King’s conduct, but she
did not believe them.
Several months later, D.H. reported King’s conduct to a school counselor who
reported it to Hennepin County Child Protective Services (CPS). Shortly thereafter, D.H.
explained the incident to a Hennepin County CPS investigator. After conducting an
investigation, which included CornerHouse forensic interviews of D.H. and K.H., the state
charged King with second-degree criminal sexual conduct (victim under 13, actor greater
than 36 months older) under Minn. Stat. § 609.343, subd. 1(a), second-degree crimina l
sexual conduct (victim 13-15, position of authority) under Minn. Stat. § 609.343, subd.
1(b) (2018), and two counts of malicious punishment of a child under Minn. Stat.
§ 609.377, subd. 1 (2018).
Prior to King’s first trial, the state agreed with King to sever the
malicious-punishment charges and filed an amended complaint charging only the
criminal-sexual-conduct offenses. The state later dismissed one of the
criminal-sexual-conduct charges.
King’s First Trial
King’s first trial was held in early 2024. Prior to opening statements, the prosecutor
raised concerns that, because of the parties’ agreement to sever the malicious-punishment
charges, he had prepared for trial with the anticipation that the parties would focus only on
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the sexual-abuse allegation and present no evidence of other physical abuse. He explained,
however, that King’s defense—that D.H. and K.H. fabricated sexual- abuse allegations as
a means to escape King and their aunt’s strict rules— might open the door to other
physical-abuse evidence. The prosecutor further explained that he likely could not
effectively counter King’s defense without introducing evidence of other physical abuse.
The first district court judge deferred a definitive ruling. He stated that the amount
of physical-abuse evidence he would allow the state to admit during trial depended on what
and how much evidence King presented to support his defense. The judge acknowledged
that if King “question[ed] [the girls’] motive for leaving” the home, then it may be fair for
the state to “add context to that” and “bring up other experiences they had that may have
motivated them to leave.” The judge offered to provide a clearer ruling during testimony.
During the first trial, D.H. testified about physical abuse in the home. She stated
that her aunt would physically punish her when she broke the rules and that King beat her
when he discovered that she had stolen items from a store. D.H. further testified that King
physically disciplined the younger children. King objected to D.H.’s testimony about the
other children, and the court sustained it and read a limiting instruction.
King’s first trial ended in a mistrial.
King’s Second Trial
King’s second trial was held in May 2024 before a different district court judge. At
the start of the trial, the district court judge stated, “Counsel made me aware of the motions
[in limine] that had been disputed in front of [the first district court judge] when this case
5
had its first trial, and I indicated that I agreed with all of [the first judge’s] decisions, and
so those would be the way we’d be going forward in this trial as well.”
During trial, D.H. testified about the conduct related to the alleged offense. She
explained that King entered her bedroom, put his hand on her butt, and then touched her
chest. On cross-examination, D.H. stated that while living with King and her aunt she was
not allowed to use her phone much or take it to school. D.H. stated that both King and her
aunt controlled her behavior and appearance and were strict. On redirect, D.H. explained
that her aunt would use physical violence against her. She stated that “everything” King
and her aunt did made her want to leave the home.
K.H. also testified during trial. K.H. corroborated D.H.’s testimony about King’s
conduct. During her testimony, K.H. affirmed that the children in King and her aunt’s
household sometimes received physical punishments for failing to follow the rules.
The Hennepin County CPS investigator, who had met with D.H. in September 2021,
testified. The CPS investigator testified that D.H. told her about physical abuse in the
home. The investigator also testified that D.H. had told her that “there was physical abuse
against all of the children in the home” that included “whoopings, being hit with a belt,
being hit in the face, being slapped, pushed around against a wall, [and] being punched in
the head.” She testified that King and the aunt both committed this abuse. The investigator
confirmed that she personally observed King and the aunt’s three-year-old child who had
“marks that were congruent with a belt on her body.”
Later, outside the presence of the jury, the district court explained that it had allowed
the witnesses to discuss the physical abuse of the other children because King opened the
6
door to such evidence by asking questions about the problems in the house and why D.H.
wanted to leave. The district court ruled that the state was allowed to introduce this
evidence as relationship evidence under Minn. Stat. § 634.20 (2024) to give context for
why D.H. wanted to leave King and her aunt’s house. The district court noted that there
was no objection from King about this evidence. When the jury returned, the district court
gave the jury a limiting instruction on the proper use of the relationship evidence.
Each party presented a closing argument, after which the jury entered a guilty
verdict. The district court sentenced appellant to 36 months in prison stayed for three years
on probation.
King appeals.
DECISION
I. The district court did not commit plain error based on either the
law-of-the-case doctrine or its application of Minnesota Statutes section 634.20.
King argues that the district court erred when it allowed the state to admit evidence
that he committed physical abuse against the other children in the household. He argues
that the district court’s decision deviated from two legal rules: law-of-the-case doctrine and
Minn. Stat. § 634.20.
King did not object to the admission of this relationship evidence at his second jury
trial. Appellate courts review an unobjected-to error under the “plain error test.” State v.
Myhre, 875 N.W.2d 799, 804 (Minn. 2016); see also State v. Vasquez, 912 N.W.2d 642,
649-50 (Minn. 2018) (articulating that plain-error review applies to forfeited issues, such
as where defendant fails to object to state’s admission of evidence). “In order to meet the
7
plain error standard, a criminal defendant must show that (1) there was an error, (2) the
error was plain, and (3) the error affected the defendant’s substantial rights.” Myhre, 875
N.W.2d at 804. An error is a “deviation from a legal rule unless the rule has been waived.”
State v. Kelley, 855 N.W.2d 269, 274 (Minn. 2014) (quotation omitted). “The party
asserting plain error has the burden of establishing all three elements.” State v. Hollins ,
765 N.W.2d 125, 131 (Minn. App. 2009). “If these three prongs are met, 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). We
address each of the grounds for King’s plain-error claim in turn.
King first argues that pretrial evidentiary rulings made before a mistrial are
generally considered the law of the case in later trials under State v. Ferguson, 729 N.W.2d
604, 612 (Minn. App. 2007), rev. denied (Minn. June 19, 2007). King contends that the
second district court judge reversed the first district court judge’s previous ruling that
excluded evidence of physical abuse against the other children, and that this decision
constituted plain error. The state counters that Ferguson is inapposite and that the
law-of-the-case doctrine does not apply under the circumstances of this case.
In Ferguson, we addressed whether the district court abused its discretion when, in
Ferguson’s subsequent trial following an earlier mistrial, it empaneled an anonymous jury.
729 N.W.2d at 610-12. Following our conclusion that the district court acted within its
discretion when, like the district court in the previous trial, it empaneled an anonymous
jury, we stated:
8
Pretrial evidentiary decisions made before a mistrial are
generally viewed as the law of the case and may be reapplied
absent clear error or a change in circumstances. United States
v. Tham, 960 F.2d 1391, 1397 n.3 (9th Cir. 1991). Evidentiary
decisions and anonymous-jury decisions are similar in
requiring a case- by-case determination. Thus, absent clear
error or a change in circumstances, the district court’s reliance
on the previous determination did not constitute prejudicial
error.
Ferguson, 729 N.W.2d at 612. King relies on the first sentence of this quotation to support
his claim that the law-of-the-case doctrine applies here. But in Ferguson we did not, and
were not asked to, decide whether the law-of- the-case doctrine binds a later district court
to the evidentiary rulings of a first district court. See Dahlin v. Kroening, 784 N.W.2d 406,
410 (Minn. App. 2010) (explaining that dicta, meaning a court’s expressions that are not
applicable to the facts before it, are “not binding in subsequent cases” (quotation omitted)),
aff’d, 796 N.W.2d 503 (Minn. 2011). Because Ferguson did not address whether the
law-of-the-case doctrine applies under the circumstances of this case, and King has cited
no legal authority for this proposition, nor have we found any, King has not shown that the
district court erred. Accordingly, we need not consider the other prongs of the plain-error
test.
King next argues that the district court committed plain error by deviating from
Minn. Stat. § 634.20. First, King, quoting State v. Matthews, 779 N.W.2d 543, 549 (Minn.
2010) (quotation omitted), contends that section 634.20 prohibits the admission of evidence
of physical abuse against the other children because “[r]elationship evidence is only
relevant to ‘illuminate the history of the relationship between the victim and defendant and
may also help prove motive or assist the jury in assessing witness credibility.’” He argues
9
that the evidence was irrelevant because it did not “illuminate the relationship between
[himself] and D.H.” and constituted inadmissible propensity evidence under Minn. R. Evid.
404(b). Second, King asserts that section 634.20 prohibits the admission of the evidence
because its probative value is substantially outweighed by its potential for prejudice.
Minnesota Statutes section 634.20 provides that “[e]vidence of domestic conduct by
the accused against the victim of domestic conduct, or against other family or household
members, is admissible unless the probative value is substantially outweighed by the
danger of unfair prejudice, confusion of the issue, or misleading the jury, or by
considerations of undue delay, waste of time, or needless presentation of cumulative
evidence.” (Emphasis added.)2
Although King correctly identifies the rationale for admitting relationship evidence
under section 634.20, see State v. Valentine, 787 N.W.2d 630, 637 (Minn. App. 2010)
(citing McCoy, 682 N.W.2d at 159) (“[T]he rationale for admitting relationship evidence
under section 634.20 is to illuminate the relationship between the defendant and the alleged
victim and to put the alleged crime in the context of that relationship.”), rev. denied (Minn.
Nov. 16, 2010), he incorrectly assumes that this rationale limits the evidence to his physical
abuse of D.H. This claim is not supported by either the plain language of the statute or

2 In State v. McCoy, the supreme court explicitly adopted Minnesota Statutes § 634.20 as
a rule of evidence. 682 N.W.2d 153, 161 (Minn. 2004). In doing so, the court differentiated
between relationship evidence admissible under Minn. Stat. § 634.20 and evidence
admissible for noncharacter purposes under Minnesota Rule of Evidence 404. McCoy, 682
N.W.2d at 161. The court clarified that the former “provides for the admission of similar
conduct in domestic abuse cases without requiring the heightened standard that the
evidence be clear and convincing.” Id. at 159.
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caselaw interpreting the statute. Section 634.20 itself provides that “[e]vidence of domestic
conduct by the accused against . . . other family or household members, is admissible.”
The statute defines “domestic conduct” to include “evidence of domestic abuse” as defined
in another statute. Minn. Stat. § 634.20; see also Minn. Stat. § 518B.01, subd. 2(a)(1)
(2024) (defining “domestic abuse” to include “physical harm, bodily injury, or assault”).
Under the language of the statute, then, evidence of physical harm that King committed
against the other children in the household is admissible. Furthermore, we have explained
that “evidence showing how a defendant treats his family or household members . . . sheds
light on how the defendant interacts with those close to him, which in turn suggests how
the defendant may interact with the victim.” Valentine, 787 N.W.2d at 637. The evidence
of King’s physical abuse of other children in the household sheds light on how King
interacts with those close to him, including D.H. We conclude that it was not error for the
district court to consider the evidence as relationship evidence . We next consider King’s
argument about the weight of the evidence.
King next argues that the district court erred because the probative value of the
relationship evidence was substantially outweighed by the danger of unfair prejudice. The
supreme court has explained that “[w] hen balancing the probative value against the
potential prejudice, unfair prejudice is not merely damaging evidence, even severely
damaging evidence; rather, unfair prejudice is evidence that persuades by illegitimate
means, giving one party an unfair advantage.” State v. Bell, 719 N.W.2d 635, 641 (Minn.
2006) (quotation omitted). Even assuming evidence of King’s physical abuse of the other
children in the household had the potential to persuade by illegitimate means, the district
11
court sought to mitigate any unfair prejudice. After the evidence had been admitted, the
district court gave a limiting instruction. The district court explained that the evidence
“was offered for the limited purpose of demonstrating the nature and extent of the
relationship between [King and D.H.]” and that the jury could not “convict [King] on the
basis of the conduct.” The district court’s limiting instruction mitigated the risk of unfair
prejudice such that it did not substantially outweigh the evidence’s probative value. See
State v. Lindsey, 755 N.W.2d 752, 755-57 (Minn. App. 2008) (affirming the admission of
relationship evidence and explaining that a limiting instruction “lessened the probability of
undue weight being given by the jury to the evidence” (quotation omitted)), rev. denied
(Minn. Oct. 29, 2008). Accordingly, we conclude that the district court did not err when it
admitted the evidence under section 634.20. Because there was no error, we need not
consider the other prongs of the plain-error test.
II. The prosecutor did not commit prosecutorial error during rebuttal.
King argues that the prosecutor committed prosecutorial error at several points
during his closing-argument rebuttal. First, he argues that the prosecutor misstated the law;
second, he argues that the prosecutor vouched for the truthfulness of the witnesses and
belittled his chosen defense; and third, he argues that the prosecutor misstated the evidence,
which inflamed the passions of the jury.
“The overarching concern regarding prosecutorial misconduct . . . is that [the]
misconduct may deny the defendant’s right to a fair trial.” State v. Ramey, 721 N.W.2d
294, 300 (Minn. 2006). Prosecutors are ministers of justice who “have an affirmative
12
obligation to ensure that a defendant receives a fair trial, no matter how strong the evidence
of guilt.” Id.
When, as is the case here, a defendant does not object to alleged prosecutorial error,
an appellate court reviews for plain error under a modified standard of review. See id. at
302; see also State v. Epps, 964 N.W.2d 419, 423 n.4 (Minn. 2021) (explaining that
modified plain-error standard applies to claims of both prosecutorial error and prosecutorial
misconduct). Plain error requires “(1) [an] error; (2) that is plain; and
(3) [that] . . . affect[s] substantial rights.” Griller, 583 N.W.2d at 740. Even if an appellate
court identifies a plain error that affects substantial rights, reversal is warranted only if it
is necessary to “address the error to ensure fairness and the integrity of the judicial
proceedings.” Bernhardt v. State, 684 N.W.2d 465, 475 (Minn. 2004) (quotation omitted).
Modified plain error differs from traditional plain error because, if the defendant shows
plain error, the burden shifts to the state on the third step of the analysis; that is, the state
must demonstrate “no reasonable likelihood that the absence of the misconduct in question
would have had a significant effect on the verdict.” See Ramey, 721 N.W.2d at 302
(quotation omitted).
A. The prosecutor did not misstate the law.
During closing-argument rebuttal, the prosecutor stated, “A couple other things I
want to get straight. [D.H.] is a victim, she’s not a complaining witness.” This comment
responded to a statement defense counsel made during its closing argument: “And I’ll -- as
I work towards other examples here, we go back to the testimony from the complaining
witness here, [D.H.]”
13
King first claims that the prosecutor plainly erred by misstating the law. King
argues that the prosecutor’s statement that D.H. was a “victim” was a misstatement of the
law because it suggested that King had lost the presumption of innocence before the jury
had completed its deliberation.
Criminal defendants are afforded certain protections under the U.S. and Minnesota
Constitutions, including the presumption that they are innocent until proven guilty beyond
a reasonable doubt. E.g., In re Winship, 397 U.S. 358, 363-64 (1970); State v. Portillo,
998 N.W.2d 242, 248-49 (Minn. 2023). “[I]t has long been held that one accused of crime
has the right to have the jury take the presumption of innocence to the jury room with them
as the voice of the law.” Portillo, 998 N.W.2d at 249 (quotation omitted).
King cites Portillo to support his claim of prosecutorial error. In Portillo, the
supreme court held that a prosecutor committed plain error when the prosecutor “said on
three separate occasions during the closing- argument rebuttal that [the defendant] had
already lost the presumption of innocence.” Id. (emphasis omitted). Specifically, the
prosecutor stated that:
[The defendant] no longer has that presumption.
You’ve heard all of the evidence. You’ve heard all of the
state’s case against [him.] He no longer has that presumption
of innocence. He has been proven guilty beyond a reasonable
doubt. We’ve gone through those elements. You’ll be able to
talk and consider each other’s thoughts and the information
you heard throughout the course of the case, but he no longer
has that presumption of innocence.
Id. The supreme court reasoned that a “defendant is only proven guilty beyond a reasonable
doubt . . . when the jury has deliberated and reached that conclusion, not before.” Id. at
14
250. Thus, the suggestion that the defendant was not entitled to the presumption at the
time of closing arguments was a misstatement of the law that constituted plain error. Id. at
250-51.
While analyzing the statements in Portillo, the supreme court distinguished the
prosecutor’s statements from those made in State v. Young, 710 N.W.2d 272, 280 (Minn.
2006). Id. at 251. In Young, the prosecutor never explicitly mentioned the presumption of
innocence in the portion of the state’s closing argument at issue. Young, 710 N.W.2d at
280-81. Specifically, the prosecutor stated that:
When the trial began, the Court told you that that young man
right there is an innocent man. He was. Until the defense stood
up and rested. Because at that time the state had presented to
you sufficient evidence to find the defendant guilty of all the
crimes that the Court just gave you the—instructions on. He’s
no long [sic] an innocent man. The evidence that’s been
presented to you by the state has shown you that he’s guilty
beyond a reasonable doubt. Let me tell you why[.]
Id. at 280. The supreme court concluded that “the prosecutor’s argument appears to be that
the state had produced sufficient evidence of Young’s guilt to overcome the presumption
of innocence, not that he was not entitled to the presumption in the absence of proof beyond
a reasonable doubt.” Id. at 280-81; see also State v. Vue, 797 N.W.2d 5, 13-14 (Minn.
2011) (holding that prosecutor’s statement that defendant “has now lost that presumption
of innocence as a result of the evidence that you have heard” was not a “plain or obvious”
error). Thus, the prosecutor’s argument was not a misstatement of the law and did not
constitute error.
15
Here, the prosecutor’s statement does not expressly nor implicitly reference the
presumption of innocence. Thus, the prosecutor’s statements are more similar to those in
Young than Portillo. Under Minnesota caselaw, the mere statement that an alleged victim
is a “victim,” without the qualifying adjective “alleged,” is not sufficient to constitute error
by deviating from the constitutional presumption that criminal defendants are innocent
until proven guilty beyond a reasonable doubt. Accordingly, we conclude that the
prosecutor did not commit prosecutorial error.
B. The prosecutor did not vouch for the truthfulness of the witness or
belittle King’s chosen defense.
During closing-argument rebuttal, the prosecutor, referencing D.H. and K.H.’s
desires to stop living with King and their aunt, also stated:
[Defense counsel] would have you believe that it is
because they want more phone privileges, they want to make
TikTok videos. They want to be able to talk to boys on their
phone, that this is what this is all about, that that’s why they
made up this story. You would have to think pretty little of
[D.H. and K.H.] to believe that story. You would have to think
pretty little of them to believe that they are that petty and
manipulative.
You’d also have to believe that they are absolute
pathological liars. That they would come up with this story
and they would stick with it and they would be consistent with
the details over and over and over again. Also, if the whole
point of the story, the whole plan, the whole idea is to get them
out of the house, that’s why they’re doing it.
(Emphases added.)
King claims that the prosecutor plainly erred here by vouching for the truthfulness
of certain witnesses and belittling his chosen defense. King asserts that the prosecutor’s
16
argument improperly vouched for the veracity of D.H.’s and K.H.’s testimony by
“impliedly guaranteeing” they were truthful, deviating from the rule under State v.
McArthur, 730 N.W.2d 44, 53 (Minn. 2007) that a prosecutor must not “vouch for the
veracity of any particular evidence.” King, relying on State v. MacLennan, 702 N.W.2d
219, 236 (Minn. 2005), further argues that the prosecutor belittled his chosen defense,
deviating from the rule that the prosecutor must not “denigrate a particular type of defense,
either explicitly or in the abstract.”
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, 497-98 (Minn. 1998) (quoting
United States v. Beasley, 102 F.3d 1440, 1449 (8th Cir. 1996)). It is prosecutorial
misconduct to bolster the credibility of the state’s witnesses with the prosecutor’s own
opinion: an advocate “may not throw onto the scales of credibility the weight of his own
personal opinion.” State v. Ture, 353 N.W.2d 502, 516 (Minn. 1984).
King cites two Minnesota Supreme Court cases to support his claim that the
prosecutor erred by vouching for the truthfulness of the witnesses. See McArthur, 730
N.W.2d at 53; Patterson, 577 N.W.2d at 497-98. In McArthur, the supreme court
concluded that the prosecutor did not vouch for the validity of a witness’s fears where the
witness testified about her concerns that testifying could create intrafamily conflict or result
in harm. 730 N.W.2d at 53. Similarly, in Patterson, the supreme court concluded that the
prosecutor did not vouch for the truthfulness of a witness where the prosecutor elicited
testimony from the witness related to a plea agreement with a truthfulness provision. 577
17
N.W.2d at 497-99. King does not explain why his case is distinguishable from these cases
to demonstrate error. As the party asserting error, he bears the burden of proving this
element. Hollins, 765 N.W.2d at 131. Accordingly, we conclude that King has failed to
establish that, under Minnesota law, the prosecutor’s statements constitute error.
We next turn to King’s argument that the prosecutor erred by belittling his chosen
defense that D.H. and K.H. fabricated the allegations of sexual abuse. “[T]he state has a
right to vigorously argue its case, ” and it may argue in individual cases that the evidence
does not support particular defenses. MacLennan, 702 N.W.2d at 236. Furthermore, the
state’s argument need not be “colorless.” State v. Bolstad , 686 N.W.2d 531, 544 (Minn.
2004). But the state “may not belittle the defense, either in the abstract or by suggesting
that the defendant raised the defense because it was the only defense that may be
successful.” MacLennan, 702 N.W.2d at 236.
Here, the prosecutor did not suggest that King raised his defense merely because it
was the only defense that may succeed . The tenor of the prosecutor’s comments is also
distinguishable from cases where the court has determined that the prosecutor committed
error. See, e.g. , State v. Porter, 526 N.W.2d 359, 363-64 (Minn. 1995) (holding
prosecutorial error occurred when the prosecutor told the jury members they were
“big . . . suckers” if they believed testimony that supported the defense); State v. Griese ,
565 N.W.2d 419, 426-28 (Minn. 1997) (collecting cases where Minnesota appellate courts
have concluded prosecutorial misconduct occurs when prosecutors suggest that a defense
is offered “when nothing else will work” (quotation omitted)). We therefore conclude that
the prosecutor did not commit error by belittling King’s chosen defense.
18
C. The prosecutor did not misstate the evidence.
During closing-argument rebuttal, the prosecutor also stated:
Lastly, the explanation simply isn’t reasonable, it’s not
supported by the evidence that they would make this up for
such petty reasons. So why? What other reasons could there
be? Well, it could be the fact that they’re suffering from
incredible abuse in that home. Is that something that might
make more sense? Is that something that explains the evidence
in this case that is reasonable? . . .
Beyond that, she is beaten in the home by [her aunt]. Beyond
that, there is other physical abuse in the home. A
three-year-old child who she sees as basically a sister is
covered in belt marks. She tells [the CPS investigator] that it
was the defendant whooping the three-year-old with a belt.
What makes more sense here? Why did they want out
of that house?
(Emphases added.)
King’s final claim is that the prosecutor plainly erred by misstating the evidence in
his description of physical abuse which inflamed the passions of the jury. Specifically, he
argues that the prosecutor’s statement that D.H. and K.H. “suffer[ed] from incredible abuse
in that home” was a misstatement about “who was abused and the frequency of that abuse”
because he alleges that there was no evidence K.H. suffered any physical abuse. King
further argues that the prosecutor’s statements about the three-year-old daughter were not
supported by evidence presented during trial.
“It is misconduct for a prosecutor to intentionally misstate evidence or to appeal to
the passions of the jury.” McArthur, 730 N.W.2d at 53. Prosecutors “should not refer to
facts not in evidence.” Id.
19
The record does not support King’s characterization of the prosecutor’s statements
or the facts in evidence. The prosecutor did not state that D.H. and K.H. suffered physical
abuse but rather made a general statement about abuse in the home. But even if the
prosecutor’s statement had focused on physical abuse, testimony admitted during trial
demonstrated that “there was physical abuse against all of the children in the home.”
Therefore, the evidence submitted at trial supports the prosecutor’s first contested
statement.
King also contends that there was “no evidence in the record about the severity of
the marks” on the three-year old and that there was “no evidence that [he] inflicted the belt
marks.” During trial, however, the CPS investigator testified that D.H. told her that the
physical abuse in the house included “being hit with a belt.” The investigator also testified
that D.H. told her that King used a belt on his three -year-old child. The investigator
personally observed “marks that were congruent with a belt” on this child. Although the
investigator did not describe the number of marks or the area covered with marks, the
prosecutor’s use of “covered” was a reasonable inference based on the evidence presented
at trial. State v. Crane, 766 N.W.2d 68, 74 (Minn. App. 2009) (“[A] prosecutor may make
‘reasonable inferences from [the] evidence’ presented at trial.” (quoting Young, 710
N.W.2d at 281 (Minn. 2006))), rev. denied (Minn. Aug. 26, 2009). Accordingly, we
conclude that the prosecutor did not misstate the evidence.
In sum, King has not established that the prosecutor committed error.
Affirmed.