State of Minnesota v. Curtis Dwayne Thurston

This opinion is nonprecedential except as provided by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
A23-0172

State of Minnesota,
Respondent,

vs.

Curtis Dwayne Thurston,
Appellant.

Filed December 4, 2023
Affirmed
Ede, Judge

Hennepin County District Court
File No. 27-CR-21-11457

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

Mary F. Moriarty, Hennepin County Attorney, Kelly O’Neill Moller, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Suzanne M. Senecal-Hill,
Assistant Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Cochran, Presiding Judge; Johnson, Judge; and Ede,

Judge.

NONPRECEDENTIAL OPINION

EDE, Judge

In this direct appeal from first- and fifth-degree criminal sexual conduct convictions,

appellant argues that he is entitled to a new trial because the prosecutor committed

prejudicial misconduct during closing argument by asserting that the victim was telling the
truth. Appellant further maintains that the district court abused its discretion by admitting

a recording of the victim’s out-of-court interview as a prior consistent statement and by

excluding evidence of the victim’s prior abuse and behavioral issues. In a pro se

supplemental brief, appellant raises additional issues. Because all of appellant’s

contentions are unavailing, we affirm.

FACTS

The convictions underlying this appeal concern sexual abuse of the victim A.S. by

the appellant Curtis Dwayne Thurston that occurred when A.S. was 10 to 11 years old.

During a March 2021 videotaped forensic interview at CornerHouse Interagency

Child Abuse Evaluation and Training Center, A.S. described abuse by Thurston. Thurston

was a former neighbor and friend of A.S.’s mother. He briefly lived with A.S. and his

mother in 2019 and 2020. The abuse included separate incidents of Thurston exposing his

penis to A.S. and requiring A.S. to perform oral sex on Thurston in a Walmart parking lot.

Respondent State of Minnesota charged Thurston with first-degree criminal sexual

conduct—penetration or contact with a person under 13 while the actor is 36 months older,

in violation of Minnesota Statutes section 609.342, subdivision 1(a) (2018), and fifth-

degree criminal sexual conduct—lewd exhibition with a person under 16 present, in

violation of Minnesota Statutes section 609.3451, subdivision 1(2) (2018).

Prior to trial, Thurston filed a motion in limine seeking to exclude the recording of

A.S.’s CornerHouse interview. At trial, the district court admitted the recorded interview,

which the state offered as a prior consistent statement under Minnesota Rule of Evidence

801(d)(1)(B) (2022).

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 Thurston moved for the admission of evidence relating to A.S.’s prior physical and

sexual abuse, as well as information regarding A.S.’s mental health and behavioral issues.

The state objected and filed a motion in limine to exclude the evidence. The district court

denied Thurston’s motion and granted the state’s motion, excluding the evidence per

Minnesota Rules of Evidence 402, which provides that irrelevant evidence is inadmissible;

403, which allows the court to exclude relevant evidence on grounds of prejudice,

confusion, or waste of time; 404, which generally prohibits the admission of character

evidence to prove conduct; 412, the “rape-shield law,”1 which governs the admissibility of

past conduct evidence for victims of certain sex offenses; and 802, which is the rule against

hearsay.

The jury heard testimony from several witnesses, including A.S. The state did not

offer physical evidence or eyewitness testimony corroborating the abuse allegations. Much

of the testimony concerned A.S.’s disclosure of the sexual abuse to medical professionals

and law enforcement. Thurston testified and denied the allegations.

During closing arguments, the prosecutor directly addressed A.S.’s credibility,

repeatedly asserting that a key task for the jury was deciding “if” they “believe” A.S. For

example, at the outset and conclusion of the state’s summation, the prosecutor argued:

[I]f you listen to [A.S.] and, if you believe him, the State
has proven this case beyond a reasonable doubt, and the
defendant is guilty.

....

1
See also Minn. Stat. § 609.347, subd. 3 (2022).

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 . . . And, if you listen and, if you believe him, the State
has proven beyond a reasonable doubt that the defendant
intentionally sexually penetrated [A.S.] and lewdly and
willfully exposed his penis to [A.S.] when [A.S.] was under 13
between May 1st of 2019 and August 31st of 2020 while [A.S.]
was living in Hennepin County. If you believe [A.S.], the
defendant is guilty. Thank you.

Throughout the state’s closing, the prosecutor addressed various factors that the

district court had instructed the jury to consider in weighing witness credibility.2 Regarding

“frankness and sincerity[,]” the prosecutor argued that the jury “should . . . believe” A.S.

because

when [A.S.] told you what happened to him, he gave you an
honest recollection of what his experience was. . . . I told him,
“Tell the truth.” And he said that’s exactly what he did. He
demonstrated for you how the defendant put his hand behind
his head and pushed his head down. That’s how you know he
is telling the truth. He did this really, really, hard thing when
I’m sure he would have rather been doing anything else.

(Emphasis added.) Addressing “interest or lack thereof in the outcome of the case[,]” the

prosecutor maintained that A.S.’s

only interest was in coming here and telling you the truth. He
didn’t want to do it. He’s not getting anything out of it. He’s a
13-year-old boy going into eighth grade. He doesn’t stand to
gain or lose anything depending on how this case is decided.
He has no reason to make any of this up.

(Emphasis added.) Turning to “consistency[,]” the prosecutor pointed out that A.S. “has

been consistent in his disclosure from the very start[,]” that “[h]e hasn’t wavered on what

happened to him[,]” and that “[h]is recounting of this experience in this Walmart parking

2
Thurston did not object to the state’s summation. The portions of the prosecutor’s closing
arguments that Thurston challenges on appeal are italicized in the text that follows.

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lot has been the same because that’s what happened” and “[b]ecause that is the truth.”

(Emphasis added.) The prosecutor also contended that, when A.S. made his first disclosure

of the abuse in February 2021, he answered a “[p]ointblank” and “[d]irect” question—

whether he had ever been sexually abused—by giving “a direct answer[,]” i.e., “Yes.” The

prosecutor continued:

. . . [T]hat direct question got a direct answer. A direct
and honest answer from [A.S.] “Yes, I have been sexually
abused.” This makes sense. He’s . . . 11 at this point. He’s a
few months away from being 12. He’s [going to] give that
direct answer.

(Emphasis added.)

The jury returned guilty verdicts on both counts of criminal sexual conduct. The

district court sentenced Thurston to 144 months in prison.

Thurston appeals.

DECISION

I. The prosecutor did not commit misconduct in closing argument.

Thurston contends that the prosecutor committed prejudicial misconduct during

closing argument by repeatedly telling the jury that A.S. was telling the truth. We disagree.

This court ordinarily reviews an unobjected-to error under the “plain error test[,]”

under which “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.” State v. Myhre, 875

N.W.2d 799, 804 (Minn. 2016) (citing State v. Griller, 583 N.W.2d 736, 740 (Minn.

1998)).

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 When a defendant does not object to alleged prosecutorial misconduct during

closing arguments, “[w]e review the prosecutor’s statements under a modified plain error

analysis.” State v. Davis, 982 N.W.2d 716, 726 (Minn. 2022). “Under this approach, the

defendant must establish the existence of an error that was plain, and then the burden shifts

to the State to establish that the plain error did not affect the defendant’s substantial rights.”

State v. Epps, 964 N.W.2d 419, 423 (Minn. 2021) (citing State v. Ramey, 721 N.W.2d 294,

302 (Minn. 2006)). “Notably, a negative answer to any one of the three parts of the plain

error doctrine may end our analysis and a defendant’s quest for relief.”3 Id. (citing State v.

Jones, 753 N.W.2d 677, 689 (Minn. 2008) (granting no relief for the defendant because

the alleged error could not have been plain); State v. Ihle, 640 N.W.2d 910, 917-19 (Minn.

2002) (analyzing the underlying legal questions and finding no error) (other citation

omitted)); see also Davis, 982 N.W.2d at 727 (analyzing only the first prong—whether

there was an error—and holding that, “[b]ecause the prosecutor’s statements [in closing

argument] were not misconduct, . . . Davis is not entitled to relief on his prosecutorial

misconduct claims”). “An error is plain if it is clear or obvious, which is typically

established if the error contravenes case law, a rule, or a standard of conduct.” State v.

Webster, 894 N.W.2d 782, 787 (Minn. 2017) (quotation omitted).

3
“If the first three prongs are satisfied, we must consider a fourth factor, ‘whether [we]
should address the error to ensure fairness and the integrity of the judicial proceedings.’”
Myhre, 875 N.W.2d at 804-05 (quoting Griller, 583 N.W.2d at 740). As discussed below,
because we conclude that there was no plain error here, we neither address whether the
alleged error affected Thurston’s substantial rights, nor whether failure to address the
alleged error would cause the public to seriously question the fairness and integrity of our
judicial system.

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 “When assessing alleged prosecutorial misconduct during a closing argument, we

look to the closing argument as a whole, rather than to selected phrases and remarks.” State

v. Graham, 764 N.W.2d 340, 356 (Minn. 2009) (quotation omitted). “The State has a right

to vigorously argue its case, including during closing arguments.” Davis, 982 N.W.2d at

726 (quotation omitted). But “a prosecutor should not . . . vouch for the veracity of any

particular evidence.” State v. McArthur, 730 N.W.2d 44, 53 (Minn. 2007). Impermissible

vouching occurs when the state implies a guarantee of a witness’s truthfulness, refers to

facts not in the record, or expresses a personal opinion about the credibility of the witness.

State v. Gail, 713 N.W.2d 851, 866 (Minn. 2006). The prosecutor is not prohibited,

however, “from arguing that particular witnesses were or were not credible.” State v.

Everett, 472 N.W.2d 864, 870 (Minn. 1991). “The use of the first-person pronoun ‘I’

indicates that the prosecutor has injected his or her personal opinion into an argument.”

State v. Leutschaft, 759 N.W.2d 414, 425 (Minn. App. 2009) (citation omitted). “The

personal opinion rule is designed to prevent an attorney, whether a prosecutor or a defense

attorney, from becoming an unsworn witness and otherwise personally attaching himself

or herself to the cause which he or she represents.” Everett, 472 N.W.2d at 870.

Here, the prosecutor’s closing argument regarding A.S.’s credibility did not violate

the “personal opinion rule” discussed in Everett, nor did it constitute impermissible

vouching. Instead, the prosecutor discussed certain factors bearing on credibility that the

district court had provided to the jury in its instructions. Thurston did not object to the

district court’s credibility instructions at trial and he does not challenge them on appeal. In

summation, the prosecutor reviewed the trial evidence with the jury, focusing on aspects

7
of the record relating to the credibility factors set forth in the jury instructions. The

prosecutor asked the jury to consider the evidence and credibility factors in evaluating the

testimony of A.S. and Thurston, arguing that the jury should conclude A.S. was credible

and Thurston was not.

Looking to the closing argument as a whole—rather than to the selected phrases and

remarks Thurston questions on appeal—there is no clear or obvious error here. The

summation did not “contravene[] case law, a rule, or a standard of conduct.” Webster, 894

N.W.2d at 787. More specifically, the prosecutor did not use “I” statements to interject a

personal opinion about witness credibility into the argument; she did not refer to facts

outside the record; and she did not imply a guarantee of A.S.’s truthfulness. To the contrary,

the prosecutor repeatedly reminded the jury that the outcome depended on the jury’s

assessment of “if” they “believe” A.S.

Because the prosecutor did not commit misconduct in closing argument, there was

no plain error, and Thurston is not entitled to relief on his prosecutorial misconduct claim.

See Leutschaft, 759 N.W.2d at 425 (“find[ing] no impropriety in the prosecutor’s

arguments[,]” where the prosecutor “called the jury’s attention to T.B.’s testimony and

suggested that it was plausible and that she testified honestly[,]” the prosecutor “did not

interject personal opinion or intimate that he had any particular knowledge of her

truthfulness[,]” and the prosecutor “invited the jury to make its assessment on the basis of

what it heard and saw in the courtroom”); see also Davis, 982 N.W.2d at 727.4

4
As noted above, because there are “negative answer[s]” to the first two “parts of the plain
error doctrine[,]” that “end[s] our analysis[.]” Epps, 964 N.W.2d at 423.

8
II. The district court did not abuse its discretion in its evidentiary rulings.

Thurston also requests a new trial based on his argument that the district court

abused its discretion by admitting (A) the CornerHouse interview and by excluding

(B) evidence of A.S.’s prior abuse and (C) behavioral issues. The state responds that the

CornerHouse interview was admissible as a prior consistent statement under Minnesota

Rule of Evidence 801(d)(1)(B), and that the district court properly excluded the challenged

evidence because it was irrelevant and unfairly prejudicial, and because it violated the rape-

shield law and the rule against hearsay. We agree with the state.

“Evidentiary rulings rest within the sound discretion of the district court, and we

will not reverse an evidentiary ruling absent a clear abuse of discretion.” State v. Ali, 855

N.W.2d 235, 249 (Minn. 2014). “The defendant has the burden to establish both that the

district court abused its discretion and that the error was prejudicial.” State v. Miller, 754

N.W.2d 686, 700 (Minn. 2008).

A. The district court did not abuse its discretion by admitting the
CornerHouse interview.

Hearsay is an out-of-court statement, made by a declarant, that is offered to prove

the truth of the matter asserted. Minn. R. Evid. 801(c). Generally, hearsay statements are

inadmissible at trial, unless an exception exists. Minn. R. Evid. 802. Under rule

801(d)(1)(B), a statement is not hearsay if (1) the declarant testifies at the trial or hearing,

(2) the declarant is subject to cross-examination concerning the statement, (3) the statement

is consistent with the declarant’s testimony, and (4) the statement is helpful to the trier of

fact in evaluating the declarant’s credibility as a witness. Before admitting a prior

9
consistent statement, the district court must first determine (1) that the declarant-witness’s

credibility was challenged, and (2) that the statement bolsters the declarant-witness’s

credibility with respect to that aspect of the declarant-witness’s credibility that was

challenged. State v. Nunn, 561 N.W.2d 902, 909 (Minn. 1997).

“The trial testimony and the prior statement need not be verbatim.” State v. Bakken,

604 N.W.2d 106, 109 (Minn. App. 2000), rev. denied (Minn. Feb. 24, 2000). In fact, we

have held that a prior statement that is reasonably consistent with the declarant-witness’s

trial testimony is admissible under rule 801(d)(1)(B). See In re Welfare of K.A.S., 585

N.W.2d 71, 76 (Minn. App. 1998) (holding that a videotaped interview was admissible

even though statements made therein were more detailed than the declarant-witness’s trial

testimony). But prior statements are not admissible “where inconsistencies directly affect

the elements of the criminal charge[.]” Bakken, 604 N.W.2d at 110.

In the present matter, Thurston’s counsel broadly challenged A.S.’s credibility

throughout his opening statement at trial. Defense counsel told the jury that there was no

physical evidence or eyewitness testimony and that the facts surrounding the alleged abuse

were “inconsistent” due to A.S.’s prior statements. Although A.S.’s trial testimony and the

CornerHouse interview were not verbatim, the prior statement was reasonably consistent

with A.S.’s trial testimony. Any inconsistencies did not directly affect the elements of the

crimes charged against Thurston.

More specifically, A.S. testified at trial that the abuse underlying Count I occurred

at Walmart. Likewise, in the CornerHouse interview, A.S. told the interviewer that

Thurston put his penis into A.S.’s mouth and the incident happened at Walmart. In both his

10
trial testimony and the CornerHouse interview, A.S. stated that he kicked Thurston in the

groin during the Walmart incident. And in both A.S.’s trial testimony and the CornerHouse

interview, A.S. said that Thurston made comments to A.S. about the size of his penis while

Thurston was at A.S. and his mother’s residence.

While A.S. made some inconsistent statements in the CornerHouse interview, those

statements do not relate to the Walmart incident and referred to conduct that does not

elevate the degree of either charge against Thurston. This distinguishes the present matter

from Bakken, where we determined that the inconsistencies “were not minor discrepancies”

but rather “significant because, if the jury believed the inconsistent videotaped statements,

the criminal conduct would legally escalate from third-degree [criminal sexual conduct] to

first-degree.” Bakken, 604 N.W.2d at 110. By contrast, A.S.’s prior statements during the

CornerHouse interview did nothing more than lend credence to A.S.’s trial testimony.

Because the CornerHouse interview was reasonably consistent with A.S.’s trial

testimony and tended to bolster A.S.’s credibility with respect to an aspect of A.S.’s

credibility that Thurston broadly challenged, we conclude that the district court did not

abuse its discretion by admitting the interview pursuant to rule 801(d)(1)(B).

B. The district court did not abuse its discretion by excluding evidence of
prior physical and sexual abuse.

Generally, “[a]ll relevant evidence is admissible, except as otherwise provided” by

law. Minn. R. Evid. 402. Evidence is relevant if it tends to make the existence of any fact

or consequence more or less probable than it would be without the evidence. Minn. R.

Evid. 401. But relevant evidence “may be excluded if its probative value is substantially

11
outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the

jury.” Minn. R. Evid. 403. The district court is afforded “discretion in balancing the

probative value of evidence against its prejudicial effect.” State v. Gassler, 505 N.W.2d

62, 70 (Minn. 1993).

A victim’s prior sexual conduct is generally inadmissible in a prosecution of

criminal sexual conduct. See Minn. Stat. § 609.347, subd. 3; Minn. R. Evid. 412; State v.

Wenthe, 865 N.W.2d 293, 306 (Minn. 2015). Under the rape-shield law, “evidence of the

victim’s previous sexual conduct shall not be admitted nor shall any reference to such

conduct be made in the presence of the jury, except by court order . . . .” Minn. R.

Evid. 412(1); see also Minn. Stat. § 609.347, subd. 3. Prior sexual conduct includes prior

allegations of sexual abuse. See State v. Kobow, 466 N.W.2d 747, 750 (Minn. App. 1991)

(agreeing “with the trial court that the term ‘sexual conduct’ as used in Minn. Stat.

§ 609.347 includes ‘allegations of sexual abuse’”), rev. denied (Minn. Apr. 18, 1991).

An exception to the rape-shield law applies if (1) the probative value of the evidence

is not substantially outweighed by its inflammatory or prejudicial nature, and (2) either

consent is a defense, or the prosecution’s case includes evidence of semen, pregnancy, or

disease at the time of the incident. Minn. R. Evid. 412(1). Furthermore, the district court

may receive evidence of a victim’s past sexual conduct where such evidence is

constitutionally required. See State v. Caswell, 320 N.W.2d 417, 419 (Minn. 1982). And

“[d]espite the prohibition of a rape-shield law or rule, a trial court has discretion to admit

evidence tending to establish a source of knowledge of or familiarity with sexual matters

12
in circumstances where the jury otherwise would likely infer that the defendant was the

source of the knowledge.” State v. Benedict, 397 N.W.2d 337, 341 (Minn. 1986).

We have held that a district court’s exclusion of prior false allegations of sexual

abuse evidence violates a defendant’s constitutional right to present a defense. See State v.

Goldenstein, 505 N.W.2d 332, 340 (Minn. App. 1993), rev. denied (Minn. Oct. 19, 1993).

But we have also held that a district court does not abuse its discretion by excluding

testimony regarding a victim’s allegations of prior sexual abuse when the defendant cannot

not show that the prior allegations were false. See Kobow, 466 N.W.2d at 751.

Here, the district court did not abuse its discretion in determining that the probative

value of evidence of prior physical and sexual abuse was substantially outweighed by its

inflammatory or prejudicial nature. This case is unlike Goldstein and more analogous to

Kobow. Thurston did not assert that A.S. had made false allegations of abuse in the past.

Instead, Thurston maintains that the evidence of past sexual abuse was necessary for his

defense at trial to prove a source of knowledge other than the alleged abuse by Thurston,

and that such evidence would impeach A.S.’s credibility.

But A.S.’s source of knowledge was not a disputed issue in this case. A.S. was 13

at the time of the trial, and he was between the ages of 10 and 11 when the alleged abuse

occurred. In Benedict, the supreme court held that the district court did not abuse its

discretion by excluding source-of-knowledge evidence relating to a five-year-old, even

after testimony from an expert witness “that the victim exhibited an unusual knowledge of

sexual activities for someone his age and that it was the result of the boy having been given

an education by somebody.” 397 N.W.2d at 340-41. We likewise conclude Thurston’s

13
source-of-knowledge argument does not support a determination that the district court

abused its discretion in excluding evidence of past sexual abuse. Moreover, consent is not

a defense to the charged offenses in this case and the prosecution’s case did not include

evidence of semen, pregnancy, or disease. Thus, evidence of the prior allegations or

incidents of sexual abuse does not qualify for the rape-shield exception provided in rule

412(1).

Lastly, because A.S. testified at trial and Thurston had the opportunity to cross-

examine him, there are no confrontation issues implicated by the district court’s exclusion

of the prior instances of sexual abuse that would otherwise indicate their admission was

constitutionally required. Based on the record, the district court did not abuse its discretion

in determining that the probative value of the evidence of prior physical and sexual abuse

was not outweighed by its inflammatory or prejudicial nature. We therefore conclude that

the district court did not abuse its discretion in excluding the evidence.

C. The district court did not abuse its discretion by excluding evidence of
mental health and behavioral issues.

Thurston argues that the district court abused its discretion by excluding evidence

of A.S.’s mental health and past behavioral issues, claiming that such evidence is relevant

and admissible because it would have allowed the jury to evaluate A.S.’s credibility.

Thurston had sought to impeach A.S. by establishing that A.S. accused Thurston of abuse

to “distract from his own wrongdoing[.]”

As noted above, “[w]e review a district court’s evidentiary rulings for abuse of

discretion, even when, as here, the defendant claims that the exclusion of evidence deprived

14
him of his constitutional right to a meaningful opportunity to present a complete defense.”

State v. Zumberge, 888 N.W.2d 688, 694 (Minn. 2017).

In this case, the district court evaluated Thurston’s request to admit evidence of

A.S.’s mental health and behavioral issues at the start of trial. The court determined that

such evidence was highly prejudicial because “[i]t paints the child as a bad and unreliable

person.” Thurston has not shown that the district court abused its discretion in its analysis

of the potential prejudice. In addition, Thurston has failed to demonstrate how admission

of this evidence tended to prove that A.S. was not credible. We conclude that the district

court did not abuse its discretion in weighing the probative value of the evidence against

its prejudicial impact and determining that it was not admissible.

III. The alleged errors in Thurston’s pro se supplemental brief are deemed waived.

Thurston submitted a pro se supplemental brief stating that he did not receive

medication before picking the jury and that the jury did not hear from certain witnesses.

Thurston’s pro se brief contains no arguments or citations to legal authority. In cases where

a party’s “brief contains no argument or citation to legal authority in support of the

allegations” of error, the supreme court has held that the alleged errors are “deem[ed] . . .

waived.” State v. Krosch, 642 N.W.2d 713, 719 (Minn. 2002). “Such arguments will not

[be] considered unless prejudicial error is obvious on mere inspection.” State v. Montano,

956 N.W.2d 643, 650-51 (Minn. 2021). On mere inspection, we discern no obvious

prejudicial error. We therefore deem Thurston’s pro se arguments waived and we decline

to review them.

Affirmed.

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