This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2012).

STATE OF MINNESOTA

IN COURT OF APPEALS

A13-1263

State of Minnesota,

Respondent,

vs.

Jimmy Lee Morris,

Appellant.

Filed July 21, 2014

Affirmed

Kirk, Judge

St. Louis County District Court

File No. 69DU-CR-12-1751

Lori Swanson, Attorney General, James B. Early, Assistant Attorney General, St. Paul, 

Minnesota; and 

Mark S. Rubin, St. Louis County Attorney, Duluth, Minnesota (for respondent)

William M. Ward, Hennepin County Chief Public Defender, Paul J. Maravigli, Assistant 

Public Defender, Minneapolis, Minnesota (for appellant)

Considered and decided by Kirk, Presiding Judge; Hooten, Judge; and Willis, 

Judge.



 

 

 Retired judge of the Minnesota Court of Appeals, serving by appointment under Minn. 

Const. art. VI, § 10.
2

U N P U B L I S H E D O P I N I O N

KIRK, Judge

On appeal from his convictions of aiding and abetting first-degree criminal sexual 

conduct, appellant argues that the district court erred by admitting evidence gathered 

during an un-Mirandized police interview and that the prosecutor committed prejudicial 

misconduct warranting a new trial. We affirm.

FACTS

During the early morning hours of March 19, 2011, a border-patrol agent saw six 

men standing around a silver Chrysler Concorde near an apartment building at Fourth 

Street and Seventh Avenue East in Duluth and took note of the vehicle’s Wisconsin 

license-plate number. From a distance, the agent watched one of the men carry an 

incapacitated woman from the car toward the building, return to the car, and leave with 

two other men. Shortly thereafter, the agent encountered Officer Nathaniel Hughes of the 

Duluth Police Department, told Officer Hughes what he had seen, and provided 

descriptions of the woman and the car. Officer Hughes then responded to a report of a 

woman lying in an alley behind 625 East Fourth Street and found S.A., extremely 

intoxicated, with numerous cuts, scrapes, and bruises. S.A. matched the border-patrol 

agent’s description of the woman who had been carried from the car. An ambulance took 

S.A. to a hospital, where she told officers she had been sexually assaulted by a group of 

men and underwent a sexual-assault examination.

At about 1:30 a.m. the next day, Officer Hughes saw the silver Chrysler 

approaching a freeway entrance ramp in the same area. He followed the car and 
3

conducted a traffic stop on the freeway. Officer Hughes approached the car, told the 

driver that the car had been seen in the vicinity of a rape the night before, and stated that 

he wanted to know if the occupants had seen anything or were potentially involved. The 

driver identified himself as appellant Jimmy Lee Morris and admitted that he did not have 

a valid driver’s license. Officer Hughes verified appellant’s identity and found that his 

license was suspended. As appellant sat in the driver’s seat of the Chrysler, Officer 

Hughes asked him if he was in Duluth the previous night—appellant said he was—and 

whether he had loaned the car to anyone—appellant said he had not. 

After receiving word from his sergeant that the Chrysler would be towed, Officer 

Hughes asked appellant if he would be willing to sit in the back seat of Hughes’s squad 

car. Appellant agreed, and Officer Hughes put him in the back seat. Officer Hughes 

gave appellant a ticket for driving after suspension, but did not search him or handcuff 

him. He also did not give appellant a Miranda warning. Officer Hughes told appellant 

that he was not under arrest, and was free to go, but said he had some additional 

questions about where the Chrysler had been the night before. Appellant agreed to 

answer the questions. 

In response to Officer Hughes’s questions, appellant said that on the previous 

night he and a friend were in the Chrysler when they encountered a group of men with a 

woman and stopped to talk with them, then left the area. Officer Hughes asked appellant 

if he would be willing to provide a DNA sample. Appellant said he would and that he 

had no reason not to because his DNA would not match anything. Appellant also agreed 

to ride with Officer Hughes and point out a few relevant locations. Appellant directed 
4

Officer Hughes to at least two locations: the friend’s house and the place where they had 

seen the group of men with the woman. Officer Hughes then drove to the policedepartment parking lot and continued the conversation. When they had finished their 

conversation, Officer Hughes drove appellant to his home in Superior, Wisconsin, and

dropped him off there.

At the time appellant initially agreed to answer Officer Hughes’s questions, 

Hughes’s squad car was parked on the side of the freeway, and appellant was sitting in 

the back seat. Officer Hughes later testified that if appellant had declined to speak with 

him at the outset, he would not have let appellant out of the car because it is illegal and 

unsafe to walk on the side of the freeway, and he would not have let appellant return to 

the Chrysler because his license was suspended. Instead, he would have told appellant 

that he could call for a ride or would have given him a ride to a safe place. But appellant 

did not call for a ride or ask to do so, and Officer Hughes did not inform him of that 

option. During the interview, as they drove to the locations appellant had identified, 

appellant never asked to get out of the car. Officer Hughes testified that if appellant had 

done so, he would have let him out near a gas station or the friend’s house because those 

would be safe places to walk. 

Police later linked DNA evidence recovered during the sexual-assault examination 

of S.A. to appellant, and in May 2012, respondent State of Minnesota charged him with 

first-degree criminal sexual conduct, in violation of Minn. Stat. § 609.342, subd. 1(f)(1). 

The state amended the complaint in February 2013, adding count two: aiding and abetting 

first-degree criminal sexual conduct, in violation of Minn. Stat. § 609.342, subd. 1(e)(i) 
5

(use of force), and count three: aiding and abetting first-degree criminal sexual conduct,

in violation of Minn. Stat. § 609.342, subd. 1(e)(ii) (impaired, incapacitated, or helpless 

victim).

At a contested omnibus hearing, appellant moved to suppress information gathered 

during the un-Mirandized interview. The district court denied the motion, finding that 

the interview “was not a custodial interview and was not subject to Miranda.” After a 

five-day jury trial in February 2013, the jury deadlocked on count one, and the district 

court declared a mistrial as to that count. The jury returned guilty verdicts on counts two 

and three. The district court accepted the guilty verdicts, adjudicated guilt on both, 

sentenced appellant to 173 months for count two, and imposed no sentence for count 

three. This appeal follows.

D E C I S I O N

I. Appellant was not in custody during the interview.

“The issue of whether a suspect is ‘in custody’ and therefore entitled to a Miranda 

warning ‘presents a mixed question of law and fact qualifying for independent review.’” 

State v. Sterling, 834 N.W.2d 162, 167 (Minn. 2013) (quoting Thompson v. Keohane, 516 

U.S. 99, 102, 116 S. Ct. 457, 460 (1995)). We review the district court’s “findings of 

historical fact relating to the circumstances of the interrogation” for clear error, but we 

“make[] an independent review of the [district] court[’]s determination regarding custody 

and the need for a Miranda warning.” Id. at 167–68 (quotation omitted). Because the 

facts of this case are not disputed, the task before us is to independently apply the law to 
6

the facts to decide whether the district court erred by ruling that appellant was not in 

custody at the time of the interview. 

The United States Constitution and the Minnesota Constitution both provide that 

“[n]o person” shall “be compelled in any criminal case to be a witness against himself.” 

U.S. Const. amend V; Minn. Const. art. 1, § 7. In Miranda v. Arizona, the United States

Supreme Court held that the constitutional protection against self-incrimination attaches 

when a defendant is subjected to “custodial interrogation,” meaning “questioning 

initiated by law enforcement officers after a person has been taken into custody or 

otherwise deprived of his freedom of action in any significant way.” 384 U.S. 436, 444, 

86 S. Ct. 1602, 1612 (1966). “Subsequent [United States Supreme Court] decisions have 

narrowed this language.” State v. Rosse, 478 N.W.2d 482, 484 (Minn. 1991). In Rosse, 

the Minnesota Supreme Court expressly adopted a narrower custody test than that stated

by the United States Supreme Court. Id. (citing Berkemer v McCarty, 468 U.S. 420, 

440–441, 104 S. Ct. 3138, 3150–51 (1984)). “[That] test is whether a reasonable person 

under the circumstances would believe that he or she was in police custody of the degree 

associated with formal arrest. The test is not whether a reasonable person would believe 

he or she was not free to leave.” State v. Champion, 533 N.W.2d 40, 43 (Minn. 1995)

(citation omitted). In the 19 years since its Champion decision, the supreme court has 

restated and applied the narrower custody test many times. See, e.g., Sterling, 834 

N.W.2d at 168; State v. Scruggs, 822 N.W.2d 631, 637 (Minn. 2012); State v. Thompson, 

788 N.W.2d 485, 491 (Minn. 2010). 
7

When no formal arrest has occurred, we “examine all of the surrounding 

circumstances” to determine whether a person was in custody. State v. Flowers, 788 

N.W.2d 120, 129 (Minn. 2010). The supreme court summarized factors indicating 

custody and lack of custody, in State v. Staats, 658 N.W.2d 207, 211–12 (Minn. 2003), 

and reiterated them in Flowers, 788 N.W.2d at 129. As applicable to the facts of this 

case, the factors listed in Staats and Flowers include: (1) the location where the 

questioning occurs, such as at a police station, in the individual’s home, or some other 

place, and whether the location is a threatening environment; (2) the duration of the 

interview; (3) statements made by the officers, including whether they tell the individual

he or she is a suspect, or that he or she is not under arrest; (4) whether the individual

makes an incriminating statement; (5) whether the individual is physically restrained or 

actually free to leave at any time; (6) the number of officers present, and whether they 

have their weapons drawn; (7) whether the individual is freely permitted to leave at the 

end of the interview; and (8) whether the individual is free to make a phone call during 

the interview. See Flowers, 788 N.W.2d at 129; Staats, 658 N.W.2d at 211–12. No 

single factor is dispositive on its own. Flowers, 788 N.W.2d at 129; Staats, 658 N.W.2d 

at 211.

A. Location and environment

Interrogation in a police station tends to indicate custody, and interrogation at a 

person’s home tends to indicate a lack of custody. Flowers, 788 N.W.2d at 129; Staats, 

658 N.W.2d at 211–12. If those two environments are regarded as the opposite ends of a 

continuum, the back seat of a squad car falls closer to the police-station end of that 
8

continuum. But the supreme court has held that the fact that questioning occurs while the 

subject is in the back seat of a patrol car does not necessarily make an interrogation 

custodial. State v. Herem, 384 N.W.2d 880, 883 (Minn. 1986). And interrogations that 

occurred inside law-enforcement facilities have also been found non-custodial. E.g., 

State v. Marhoun, 323 N.W.2d 729, 731 (Minn. 1982) (holding that statements given at a 

police station and at the Bureau of Criminal Apprehension were not custodial when 

defendant went to those locations voluntarily and was informed that he was free to leave). 

Appellant has not argued that the location was a threatening environment, and the record 

includes no evidence to that effect. While it would be natural for a person in appellant’s 

circumstances to be concerned about the implications of talking with a police officer, the 

fact that appellant voluntarily got into the squad car suggests he was not overawed by 

what the United States Supreme Court has called “the aura of authority surrounding an 

armed, uniformed officer.” Berkemer, 468 U.S. at 438, 104 S. Ct. at 3149. Considering 

all these facts, we conclude that location and environment weigh marginally against the 

district court’s ruling that appellant was not in custody.

B. Duration

Officer Hughes testified that he stopped appellant at about 1:30 a.m., but he did 

not indicate what time appellant got into his squad car, what time he dropped appellant 

off at his home, or how long they were in the car together. The district court made no 

finding about the duration of the encounter. In State v. Seekon, we upheld the district 

court’s determination that a Miranda warning should have been given when a truck was 

stopped as part of a felony investigation and the passenger was questioned in the back of 
9

a squad car, even though the duration of the encounter was only about 15 minutes. 392 

N.W.2d 624, 625, 627 (Minn. App. 1986), review denied (Minn. Oct. 17, 1986). 

Although the facts in the record provide scant basis for review, we conclude that duration 

also weighs marginally against the district court’s decision.

C. Statements made by police

Officer Hughes told appellant at the outset that he was free to go and that he was 

not under arrest. The state argues that we should weigh this factor more heavily than 

others because the Eighth Circuit appears to have done so. See United States v. Czichray, 

378 F.3d 822, 826 (8th Cir. 2004) (identifying such statements as “powerful evidence that 

a reasonable person would have understood that he was free to terminate the interview”). 

We reject the approach the state suggests because Eighth Circuit cases are not binding on 

this court and because we find no authority showing that Minnesota appellate courts have 

followed Czichray. Nonetheless, a reasonable person, told by an officer that he is not 

under arrest and is free to go, would most likely believe he was not in custody. 

Additionally, Officer Hughes did not tell appellant that he was a suspect. We therefore 

conclude that this factor weighs in favor of the district court’s ruling.

D. Statements made by appellant

There is some indication in the record, outside of the omnibus testimony, that 

appellant told Officer Hughes that he was driving the Chrysler around Duluth on the 

night before the sexual assault. This statement may have implicated appellant for driving 

after suspension, but appellant made no inculpatory statements about the sexual assault. 

To the contrary, he indirectly asserted his innocence by telling Officer Hughes he had no 
10

reason to resist a DNA test because his DNA would not match. We conclude that this 

factor weighs in favor of the district court’s decision that appellant was not in custody. 

E. Physical restraints and freedom to leave

When the interview began, appellant was seated in the back seat of Officer 

Hughes’s squad car on the side of the freeway. The district court noted that appellant 

could not have opened the squad car’s rear doors from the inside, and Officer Hughes 

testified that he would not have let appellant leave at that point because it is unsafe and

illegal to walk along the freeway. These restrictions on appellant’s freedom would weigh

against the district court’s decision except that there were legitimate non-custody reasons 

for them, namely, it is unsafe and illegal to walk along the freeway. Those restrictions 

apply to everyone, and not only to individuals who are in police custody. And once 

Officer Hughes left the freeway, the balance shifted so that this factor weighs in favor of 

the district court’s decision. Officer Hughes testified that if appellant had terminated the 

interview or asked to get out of the car, he would have dropped appellant off at a safe 

location. Under the unique facts of this case, appellant’s inability to leave the scene at 

the beginning of the interview was based on safety and legality, not custody. And once 

the car was in a safe location, appellant was free to leave, although he did not ask to do 

so. We therefore conclude that this factor weighs in favor of the district court’s ruling 

that appellant was not in custody during the interview.

F. Number of officers and use of weapons

The reasoning behind these factors seems to be that the presence of multiple 

officers or a show of force suggests willingness to use force to keep the subject where he 
11

is, which strengthens the inference that the subject is in custody. See Flowers, 788 

N.W.2d at 130 (noting that during an interview deemed noncustodial, there were no 

officers guarding the door of the interview room); Rosse, 478 N.W.2d at 486 (concluding

interrogation was custodial where subject was not handcuffed, but was seated in a car in 

the presence of several officers who had confronted her with guns drawn, and several

other indicia of custody were present). Because Officer Hughes was the only officer 

present and never drew his weapon, we conclude that these factors weigh in favor of the 

district court’s decision.

G. Freedom to leave after the interview

Appellant was not only free to leave after the interview, but Officer Hughes 

actually drove him home. This factor supports the district court’s conclusion that 

appellant was not in custody. 

H. Freedom to make phone calls

The record does not indicate whether appellant had a cell phone on his person 

during the interview, but Officer Hughes testified that he would not have prevented 

appellant from making a phone call. We conclude that the facts are not sufficient for us 

to weigh this factor, and we therefore consider it neutral. 

To summarize our independent analysis, location and duration weigh marginally 

against the district court’s decision. Officer Hughes’s statements to appellant, appellant’s 

statements, and all the other factors weigh in favor of the district court’s decision, except

for freedom to make phone calls, which we consider neutral. We therefore conclude that 

the district court did not err by finding that appellant was not in custody during the 
12

interview. Because he was not in custody, no Miranda warning was required. We 

accordingly affirm the district court’s decision to deny appellant’s suppression motion.

II. Appellant’s prosecutorial-misconduct claims lack merit.

Appellant asserts that the prosecutor committed misconduct warranting a new trial 

by eliciting vouching testimony and vouching for S.A. during closing argument, and by 

accusing appellant of tailoring his testimony to fit what he learned from observing the 

testimony of other witnesses.

Vouching testimony occurs when one witness expresses an opinion about whether 

another witness is telling the truth. State v. Ferguson, 581 N.W.2d 824, 835 (Minn. 

1998). Elicitation of vouching testimony is a type of attorney misconduct in which an 

attorney asks questions that prompt a witness to opine about whether another witness is 

telling the truth, often by asking the first witness if the second witness was lying. See 

State v. Mayhorn, 720 N.W.2d 776, 788 (Minn. 2006) (acknowledging that there is no 

“blanket prohibition” on “were they lying” questions, but holding that under the facts of 

the case, the prosecutor committed misconduct by posing such questions); State v. Pilot, 

595 N.W.2d 511, 516 (Minn. 1999) (discussing the impropriety of “were they lying”

questions). 

Appellant argues that the prosecutor “committed misconduct” by “elicit[ing] 

vouching testimony” and asserts that the prosecutor “delv[ed] into whether two police 

officers . . . believed [S.A.] truthfully reported a rape.” We reject this argument because 

we conclude that none of the disputed testimony constituted vouching.
13

The first statements appellant challenges, from the direct examination of Duluth 

Police Officer Jacob Peterson, concern the officer’s interactions with S.A. at the hospital. 

After Officer Peterson described S.A.’s state of intoxication and how the interview was 

frequently interrupted by medical staff, the prosecutor questioned Officer Peterson as 

follows:

Q: [W]as [S.A.] having trouble tracking and recalling 

events?

A: She was, yes.

Q: Was the story—was she able to tell the story in a 

chronological fashion?

A: No.

Q: Did she seem uncertain about the things that she was 

saying?

A: Yes.

Q: And did some of that seem to be due to her level of 

intoxication?

A: Yes.

Appellant characterizes this testimony as an elicitation of vouching testimony 

because the prosecutor got Officer Peterson “to assert that any uncertainty was due to 

intoxication.” We disagree. Officer Peterson did not express an opinion about whether 

S.A. was telling the truth or lying. Instead, he expressed an opinion about whether her 

state of intoxication affected her ability to tell the story in a clear, chronological fashion. 

The second disputed section of testimony is also from the direct examination of 

Officer Peterson. In this testimony, Officer Peterson described S.A.’s graphic statements 

and her difficulty answering his questions.

Q: Okay. Did—so [S.A.] told you, um, quote, “They 

made me f--- all of them”; is that true?

A: Yes.

Q: Um, did she explain that?
14

A: She did not. Again, I tried asking follow-up questions 

and she was unable to—to provide any more answers.

Q: Same question about the statement, “They all made me 

give them blow jobs,” did she explain that at all?

A: Ah, she did elaborate, saying that she had provided 

oral sex to one of the individuals in the alley, and then 

when we began to talk about the vehicle, she also said 

that she performed oral sex on one of the individuals in 

the backseat of the car.

Q: Did she tell you or indicate to you whether any of this 

sexual activity was consensual?

A: She did not specifically say, no.

Q: Okay. Were you able to tell from any of the context or

anything else that she told you?

A: Based upon her crying and generally how upset she 

was, I inferred that it was indeed not consensual.

Appellant asserts that Officer Peterson’s statement, “I inferred that [the sexual 

contact] was indeed not consensual,” constitutes vouching testimony. But that statement 

is not an expression of Officer Peterson’s opinion regarding S.A.’s truthfulness or 

credibility. Instead, it is a statement of Officer Peterson’s conclusion about the nature of 

the sexual contact, based on evidence provided by his own observations and S.A.’s 

statements, including her repeated use of the phrase “they made me.” (Emphasis added.) 

The prosecutor did not ask whether Officer Peterson thought S.A. was being truthful 

when she made those statements, and Officer Peterson did not express an opinion about 

her truthfulness.

The third disputed section of testimony is from the redirect examination of Duluth 

Police Investigator Christopher Lofstuen. On direct examination, Investigator Lofstuen 

testified that S.A. told him “somebody was forcing her to perform oral sex.” On crossexamination, defense counsel highlighted the fact that Investigator Lofstuen’s report did 
15

not include the word “forced.” On redirect, the prosecutor elicited Investigator

Lofstuen’s acknowledgement that the word “forced” was not in his report, and this 

exchange followed:

Q: Okay. Um, is that your recollection that [S.A.] was 

telling you that this was—encounter was forced?

A: If she didn’t say that as a quote, I mean, the—that was 

the—the gist of the whole—you know, I was—I mean,

I was there to investigate a sexual assault so, um, yeah, 

I couldn’t tell you right now, two years later, if she 

said that word exactly . . . .

Q: The—in any event, the—the scope and the 

understanding of the conversation is that you were 

there to investigate a sexual assault?

A: Yes.

Q: And that would be something that was done against 

[S.A.]’s will?

A: Yes.

Appellant asserts that the prosecutor elicited vouching testimony by getting 

Investigator Lofstuen to testify about the “gist” of S.A.’s story, and his own

“understanding” that sex was forced. This assertion fails for the same reason as the other 

two: the witness did not express, and the prosecutor did not ask for, an opinion about 

whether S.A. was telling the truth. Instead, Investigator Lofstuen stated a conclusion he 

reached based on evidence from S.A.’s statements. On direct examination, Investigator 

Lofstuen testified that S.A. told him she had been “sexually assaulted in an alley,” and 

“sexually assaulted in a bathroom.” The prosecutor never asked Investigator Lofstuen 

for, and he never offered, his opinion about the veracity of those reports.

Appellant’s second prosecutorial-misconduct claim is that the prosecutor vouched 

for S.A.’s credibility during closing argument. Vouching by counsel occurs when 
16

counsel expresses a personal opinion as to a witness’s credibility, or implies a guarantee 

of a witness’s truthfulness. State v. Lopez-Rios, 669 N.W.2d 603, 614 (Minn. 2003). 

Vouching by counsel is particularly problematic when done by a prosecutor, because the 

jury may regard the prosecutor’s opinion as the opinion of the state. See State v. Cole, 

240 Minn. 52, 58, 59 N.W.2d 919, 922 (1953) (holding that “it is improper for a 

prosecuting attorney in his closing argument, after emphasizing his role as representative 

of the state, to offer his own opinion as evidence tending to prove defendant’s guilt”). 

But it is not improper for a prosecutor to argue credibility of witnesses, provided that the 

argument is based on evidence and the law, and not on the prosecutor’s opinion. E.g., 

State v. Everett, 472 N.W.2d 864, 870 (Minn. 1991) (holding that prosecutor’s closingargument comments were not improper when he urged the jury to consider the witness 

credible based on his demeanor during his testimony). 

Appellant’s specific argument is that the prosecutor “used a substantial portion of 

his [closing argument] rebuttal to tell the jury repeatedly that [S.A.] was credible,” 

“repeatedly asserted that [S.A.] would not lie,” and “vouch[ed] for [S.A.] as a credible

person who did not lie.” Appellant does not identify particular statements from the 

rebuttal, but apparently objects to the following statement:

[Defense counsel] spoke that [S.A.] made a bad 

decision and made a number of bad decisions, getting 

intoxicated, getting involved with her therapist, peripheral 

issues, he says, and the Defense argues that this makes her not 

believable. Doesn’t that make her more believable in a way? 

If she was going to come in here and lie to you, why didn’t 

she make up a better story? If she’s going to come in here 

and lie to you, why didn’t she just tell you, that’s the guy 

sitting right there, I remember him? She didn’t do that[.] She 
17

told you, looks like the profile of the driver but I’m not sure[.]

If she is so incredible, why didn’t she make up a more graphic 

or gruesome story, like, say, somebody put a gun to my head?

Look at all the things she did tell you about herself, 

these things that were quite revealing[.] She did tell you she 

drank too much[.] She relapsed[.] She smoked marijuana 

with her therapist, and she put herself in a vulnerable 

position. She came in here and told that to you all[.] Does 

that sound like someone who’s lying or just laying out the 

facts?

We reject appellant’s claim because this statement does not reflect the 

prosecutor’s opinion of S.A.’s credibility. Instead, it is an argument that the jury should 

believe her testimony because it included internal indicia of credibility. We therefore 

conclude that the prosecutor did not improperly vouch for S.A.

Appellant’s final prosecutorial-misconduct claim is that the prosecutor accused 

appellant of tailoring his testimony to fit what he learned from hearing the testimony of 

other witnesses. He points to a particular portion of the prosecutor’s closing-argument 

rebuttal. Appellant did not make a contemporaneous objection.

Because appellant did not object, we review his claim for plain error. State v. 

Davis, 735 N.W.2d 674, 681 (Minn. 2007). Under that standard, “[a]n error is plain if it 

is clear or obvious, and usually this is shown if the error contravenes case law, a rule, or a 

standard of conduct.” Id. (quotations omitted). Arguments that a defendant tailored his 

testimony to fit evidence presented at trial implicates a defendant’s right to be present at 

trial, which is protected by the Confrontation Clause of the Sixth Amendment to the 

United States Constitution. Id. Minnesota appellate courts have repeatedly held that in 

the absence of specific evidence of tailoring, it is misconduct for a prosecutor to argue 
18

that tailoring occurred. Davis, 735 N.W.2d at 681–82; State v. Swanson, 707 N.W.2d 

645, 657–58 (Minn. 2006); State v. Ferguson, 729 N.W.2d 604, 616–17 (Minn. App. 

2007), review denied (Minn. June 19, 2007). 

The challenged section of the rebuttal argument reads as follows: 

[Defense counsel] also talked about [appellant’s]

testimony saying that this was a consensual act, but 

remember, he didn’t say that at first[.] When you are 

considering testimony, something important to remember and 

important to think about is, what did he know when he said 

what he said? What did the person know when they said 

what they said?

Remember, he made multiple statements to Officer

Hughes and the quote is, He continually denied any

involvement other than giving [S.A.] a ride[.] He continually 

denied that his DNA would be matched against any of the 

DNA collected from the sex assault kit[.] What did he know 

when he said what he said? What did he know when he said 

that? Not much[.] His DNA had not been recovered yet[.]

His DNA had not been analyzed by the crime lab yet[.] His 

DNA had not been matched to the known sample he gave[.]

What did he know when he said what he said? Didn’t 

happen[.] Wasn’t me[.] Not going to find any evidence[.]

Now, his testimony is that, “I told Officer Hughes that 

I had consensual sex with her and of course you’ll find my 

DNA on her[.]” What does he know when he said what he 

said? And does that statement, that idea, even make sense, in 

light of all of the other evidence in the case? We have an 

officer investigating an incident of criminal sexual conduct[.] 

He finds the vehicle the very next day, speaks with a person 

who says, yes, I did have sex with her and you’re going to

find my DNA, and the officer gives him a ride home[.] What 

did he know when he said what he said? What did he know 

when he said what he said in court? You gotta explain how 

the DNA got there, so now the testimony is that it was 

consensual. 

Appellant’s claim fails because the relevant rule bars tailoring arguments only 

when there is no evidence that tailoring actually occurred. Here, there is ample evidence 
19

of tailoring. During the trial, the jury heard testimony from Officer Hughes about 

appellant’s statements during the squad-car interview. The prosecutor summarized those 

statements in his closing-argument rebuttal and urged the jury to compare them to 

appellant’s trial testimony. The statements appellant made in the squad car were 

inconsistent with his trial testimony, providing clear evidence of tailoring. This case is 

therefore like Ferguson, in which this court held that because the defendant’s “account of 

the events changed significantly as the investigation progressed,” the prosecutor “had

evidence of tailoring and could legitimately point out changes in [the defendant’s] story.” 

729 N.W.2d at 617.

We conclude that because there was clear evidence of tailoring, the prosecutor’s 

assertion that appellant tailored his trial testimony did not contravene “case law, a rule, or 

a standard of conduct.” See Davis, 735 N.W.2d at 681 (quotation omitted). There was 

therefore no plain error and no prosecutorial misconduct.

Affirmed.