STATE OF MINNESOTA IN COURT OF APPEALS A14 - 0358 State of Minnesota, Respondent,

vs. Brian Kenneth Moore, Appellant. Filed May 11, 2015 Affirmed Johnson , Judge Sherburne County District Court File No. 71

- CR

- 11

- 1862 Lori Swanson, Attorney General, Matthew Frank, Assistant Attorney General, St. Paul, Minnesota; and Kathleen A. Heaney, Sherburne County Attorney, Leah G. Emmans, Assistant County Attorney, Elk River, Minnesota (for respondent) Cathryn Middlebrook, Chief Appellate Public Defender, Jenna Yauch

- Erickson, Assistant Public Defender, St. Paul, Minnesota (for appellant) Considered and decided by Johnson , Presiding Judge; Halbrooks , Judge; and Larkin , Judge

. S Y L L A B U S A district court must instruct the jury on the statutory definition of “force” in Minnesota Statutes section 609.341, subdivision 3, if a defendant is charge d with third

degree criminal sexual conduct in violation of Minnesota Statutes section 609.344, subdivision 1(c), which requires evidence that the defendant used “ force or coercion to2

accomplish [sexual] penetration ,” and if the state seeks to prove that the defendant used force to accomplis h the penetration

. O P I N I O N JOHNSON , Judge Brian Kenneth Moore was charged with third

- degree criminal sexual conduct in violation of section 609.344, subdivision 1(c), of the Minnesota Statutes. Th at particular form of third

- degree criminal sexual conduct requires proof that a defendant used “ force or coercion to accomplish [sexual] penetration .” In this case, the state sought to persuade the jury that Moore used force, but not coercion, to accomplish sex ual penetration. A Sherburne County jury returned a verdict of guilty. On appeal , Moore ’s primary argument is that the district court erred by not instructing the jury on the statutory definition of the word “force,” which he contends is different from the common understanding of th e word. Moore makes the argument for the first time on appeal because he did not object to the district court’s instruction on that ground

. We conclude that the district court erred because the jury instruction stating the elements of the charged offense did not include the legislature’s definition of “for ce,” which is meaningfully different from the lay definition. W e conclude , however, that the district court’s error is not plain and, furthermore, did not affect Moore’s substantial rights. We also conclude that the district court did not err in excludin g certain evidence that Moore sought to introduce

. T h erefore, we affirm the conviction.3 FACTS Moore was convicted of committing criminal sexual conduct against a woman, P.B. , with whom he previously had had a consensual sexual relationship . Th at relationship began in another state in 2004 , when P.B. was married to another man

. Both Moore and P.B. later moved to different state s , but they maintained contact and occasionally met and engaged in consensual sex ual conduct

. On a few of those occasions , according to P.B. ’s trial testimony, they engaged in “rough sex” and in sexual conduct that she described as domination and submission. Certain sexual episodes also involved the infliction of physical pain through slapping and hair pulling. Th is sexual relationsh ip continued until 2009. Moore and P.B. saw each other in December 2010, when Moore was living in Minnesota and P.B. was visiting relatives in the state. They met at a mall in St. Cloud, accompanied by P.B.’s daughter, but did not engage in sex ual conduct

. Moore and P.B. saw each other again the following year. Moore was in a sexual relationship with and living with a nother woman, A.W. P.B. was living in the eastern United States , was engaged to be married to another man, and was 26 w eeks pregnant. In July 2011, P.B. was required to be in Minnesota for a court hearing concerning the custody of two children from her prior marriage. Before her trip, she contacted Moore by instant message and text message and asked for assist ance with t ransportation and other
matters
. In one text message to P.B. , Moore wrote that he was looking forward to having sex with her, and P.B. re sponded that she did not want to have sex with him because she

was committed to her fiancé. Moore and P.B. later exchanged additional text messages4

that were sexually suggestive. In one text message, P.B. wrote: “stop tempting me. It is hard enough. ” In another text message, P.B. wrote: “I want to but my heart and conscience are telling me no. I know that I will tell [my fiancé]. I can’t risk losing him.” P.B. arrived in Minnesota on July 5, 2011. Moore picked her up at the airport , drove her to a hotel in the city of Elk River , and helped her check in

. They spent time together t he next day , along with P.B.’s two children and A.W. and her child. Moore also ran errands for P.B. In the late afternoon, P.B. went back to her hotel room, while Moore and A.W. went to a bar to play volleyball with friends

. At approximately 7:00 p.m., P.B.
sent a text message to Mo ore , asking , “ If it’s not too late, will you stop by? ” P.B. later testified that she wanted to ask Moore whether she could stay at the home he shared with A.W. on the following night , P.B.’s last night in Minnesota, in which case she would check out of her hotel in the morning

. Moore re sponded by writing that he would stop by the hotel later that night. He and A.W. spent the evening with friends at two bars

. At approximately 11:30 p.m., P.B. sen t another text messag e to Moore, saying, “come see me if you can , ” and “I need to talk to you.” Moore and A.W. went to P.B.’s hotel at approximately 1:30 a.m. A.W. waited in the car while Moore went in side the hotel. Moore entered P.B.’s hotel room with an extra key card that she had given him earlier, when he ran errands for her

. P.B. was sleeping but a woke to a “ sharp pain ” in her breast and realized that Moore was on top of her and was biting her breast . She tried to si t up but could not do so because Moore was holding her arms down with his hands and was pressing one of his leg s against her stomach

. Moore then rubbed and licked one of P.B.’s thigh s . She was “astonished” and5

told him “no” repeatedly while crying . Moore pushed her onto her stomach . She pull ed her legs underneath her to protect her pr egnant belly

. When P.B. cried into her pillow , Moore pulled her head up by her hair and told her th at it was merely a dream. Moore penetrated he r vagina with his penis for a couple of minutes until he ejaculated. P.B. experienced pain while Moore was pe netrating her. A.W. testified at trial that Moore returned to the car after approximately ten minutes, and her testimony on that point was corroborated by hotel surveillance cameras. After Moore left the hotel room , P.B. called her fiancé and told him tha t Moore had raped her . Her fiancé said that she should call the police , and they agreed that he would do so

. P olice officers came to P.B.’s hotel room shortly thereafter to take her statement and gather evidence

. P.B. was transported by ambulance to a h ospital, where a

nurse performed a sexual

- assault exam ination. The nurse observed five small lacerations

o n the walls of P.B.’s vagina that are consistent with a sexual assault

. Meanwhile, police officers brought Moore and A.W. to the police station for questioning . Moore initially said that he had only kiss ed P.B. O n further questioning , he said that they had had consensual sex. In December 2011, t he state charged Moore with third

- degree criminal sexual conduct, in violation of Minn. Stat. § 60 9.344, subd. 1(c) (2010) . The case was tried over
two day s in October 2013. The state called five witnesses: P.B. , the nurse who performed the sexual

- assault exam, two Elk River police officers, and A.W. The defense called one witness : a former employee of the hotel who also was Moore’s neighbor. The jury found Moore guilty. The district court imposed a sentence of 48 months of6

im prison ment but stayed execution of the sentence , ordered jail t ime with credit for time in detention , and placed Moore on pr obation for 15 years

. The district court’s sentence is a downward dispositional departure from the presumptive guidelines sentence of 41 to 58 months of imprisonment . Moore appeals. ISSUES I. Did the district court err by excluding evidence of P.B.’s mental

- health diagnosis? II. Is Moore entitled to a new trial because the district court did not instruct the jury on the statutory definition of the word “force,” as used in the third

- degree criminal

sexual

- conduct statute? ANALYSIS I. Moore argues that the district court erred by excluding evidence of P.B.’s mental

health diagnosis. In April 2012, Moore moved to compel discovery of P.B.’s psychotherapy records. T he district court ordered that the records be produced for an in camera inspection before the omnibus hearing. In October 2012, the district court ordered that some of the psychotherapy records be produced to Moore because they contained information that was relevant to the proceeding. In March 2013, Moore filed a motion in limine in which he sought, among other things, a ruling that evidence concerning P.B.’s mental health was admissible. T he district court ruled that either party could examine P.B. about certain aspects of her7

medical history, which the district court ide ntified in a confidential attachment to its order. But t he district court also ruled that Moore could not introduce evidence of , among other things, P.B.’s mental

- health diagnosis. 1 The district court reasoned that evidence of P.B.’s mental

- health diagno sis and certain other subjects would be “highly prejudicial, offer little relevance to the issues the jury will have to decide, and will distract the jury from the issues raised in the case.” Consistent with its in limine ruling, the district court allowed Moore’s trial counsel to examine P.B. about some of the symptoms of her diagnosis, such as specific incidents in the past when she could not remember events that she had experienced. The district court also allowed Moor e’s trial counsel to examine P.B. about her responses to a questionnaire adminis tered by her psychotherapist. But Moore’s trial counsel was not allowed to examine P.B. about her mental

- health diagnosis or to introduce certain other evidence explaining th e diagnosis. When ruling on Moore’s motion in limine , the district court applied the following statute, which is captioned, “ Psychotherapy evidence ”:

(a) In a prosecution under sections 609.342 to 609.3451 .

. . , evidence of the patient’s personal or med ical history is not admissible except when:

1 The district court’s order was filed under seal. On appeal, Moore submitted the district court’s order to this court in a confidential addendum, as required by the rules of appellat e procedure. See Minn. R. Civ. App. P. 112.01, subd. 1; see also Minn. R. Civ. App. P. 112 .03. In this opinion, we refer to the mental

- health issues in only a general way because we strive to maintain the confidentiality of the detailed information that has been filed under seal in the district court and in this court. See Minn. R. Civ. App. P. 112.01, subd. 1; Minn. R. Pub. Access to Recs. of Jud. Branch 4, subd. 1(g)(2); see also Coursolle v. EMC Ins. Grp., Inc. , 794 N.W.2d 652, 655 n.1 (Minn. App. 2011).8 (1) the accused requests a hearing at least three business days prior to trial and makes an offer of proof of the relevancy of the history; and (2) the court finds that the history is relevant and that the pro bative value of the history outweighs its prejudicial value. (b) The court shall allow the admission only of specific information or examples of conduct of the victim that are determined by the court to be relevant. The court’s order shall detail the inf

ormation or conduct that is admissible and no other evidence of the history may be introduced. Minn. Stat. § 609.347, subd. 6 (2014). This statute essentially requires a district court to conduct the type of balancing that is required by rule 403 of the Minnesota Rules of Evidence. Compare id. , subd. 6(a)(2), with Minn. R. Evid. 403. In this case, the district court did so by referring to the probative value and the potential ly prejudicial nature of the challenged evidence. The district court also cons idered the potential for the evidence to distract the jury from the issues it was required to decide. In addition, t he district court complied with the first sentence of subdivision 6(b) by expressly permitting Moore to introduce relevant evidence of spec ific incidents in which P.B. exhibited symptoms of her mental

- hea lth issues. Moore agrees that the admissibility of his proffered evidence is governed by section 609.347, subdivision 6. 2 He acknowledges that this court applies an abuse

- of

-

2 In framing his appellate argument, Moore refers to a criminal defendant’ s constitutional right to a meaningful opportunity to present a complete defense , which is protected by t he Due Process Clause of the United States Constitution. S ee S tate v. Jenkins , 782 N.W.2d 211, 225

- 26 (Minn. 2010) . The United States Supreme Court caselaw holds that an evidentiary rule that “infringes upon a weighty interest of the accused and is arbitrary or disproportionate to the purposes the rule is designed to serve”9

discretion standard of review to the district court’s evidentiary ruling. See State v. Vang , 774 N.W.2d 566, 576

- 77 (Minn. 2009) (applying Minn. R. Evid. 403) ; State v. Morris , 606 N.W.2d 430 , 435 (Minn. 200 0 ) (applying section 609.347, subdivision 3 )

. He contends that the district court erred by limiting his cross

- examination of P.B. on the subject of her mental

- health diagnosis and by limiting his extrinsic evidence relating to that particular diagnosis. He contends that the evidence is relevant and h ighly probative “because it is key to the central issue of this trial: consent.” Moore further contends that evidence of P.B.’s mental

- health diagnosis wo uld not be highly prejudicial. In response, the state contends that the district court did not err i n its ruling, in large part because the district court allowed Moore ’s trial counsel to question P.B. extensively about her

m ental

- health issues. We agree with the state that it is appropriate to put Moore’s argument in context by consider ing the evidenc e that the district court allowed Moore to introduce on the same subject and closely related subjects. See , e.g. , State v. Nissalke , 801 N.W.2d 82, 102

- 03 (Minn. 2011) (concluding that exclusion of alternat iv e - perpetrator evidence was
not error because de fendant introduced other evidence relevant to that theory). We also
violates the defendant’s constitutional right to present a complete defense. State v. Pass , 832 N.W.2d 836, 84 1

- 4 2 (Minn. 2013) (quoting Holmes v. South Carolina , 547 U.S. 319, 324

- 25, 126 S. Ct. 1727, 1731 (2006)) (alterations omitted). But “evidentiar y rules designed to permit the exclusion of unfairly prejudicial, confusing, or misleading evidence are unquestionably constitutional.” Id. (quotations omitted). Moore does not develop an argument that section 609.347, subdivision 6, is inconsistent with the constitutional right to a meaningful opportunity to present a complete defense

. Accordingly, we construe Moore’s argument to contend that the district court erred in its application of Minnesota law concerning the admissibility of evidence about P.B. ’ s psychotherapy.10

agree that Moore’s trial counsel devoted a significant portion of his cross

- examination of P.B. to question s concerning her mental

- health issues and memory issues. S pecifically, Moore wa s allowed to introduce a substantial amount of evidence concerning symptoms and behaviors arising from P.B.’s mental

- health diagnosis

. T he district court appropriately reasoned that the evidence directly related to P.B.’s diagnosis has less probative valu e. In doing so, the district court appropriately heeded the statutory command that it “shall allow the admission only of specific information or examples of conduct of the victim that are determined by the court to be relevant.” Minn. Stat. § 609.347, su bd. 6(b). The district court also appropriately reasoned that P.B.’s privacy interests weigh against admission of the evidence. That consideration is evident in the purpose of section 609.347, subdivision 6. Indeed, Moore’s trial counsel acknowledged
to the district court that the “stigma” associated with a mental

- health diagnosis is a reason that favors exclusi on of the evidence. Moreover, the district court’s concern about juror distraction was reasonable because P.B.’s mental health was of secondary importance. The district court’s written order states that consent was “the most critical fact to be determined by the jury , ” and the district court reasoned that the history of Moore’s and P.B.’s sexual practices was most probative of the issue of consen t. In light of the evidence of P.B.’s mental

- health symptoms that the district court admitted, the district court weighed the proper factors in concluding that her mental

- health diagnosis would be substantially more prejudicial than probative. Thus, the district court did not abuse its discretion by excluding evidence of P.B’s mental

- health diagnosis.11 II. Moore argues that the district court erred by not including the statutory definition of the word “force” in the jury instruction that explains the eleme nts of the offense with which he was charged. A district court must instruct the jury in a way that “fairly and adequately explain[s] the law of the case” and does not “materially misstate[] the applicable law.” State v. Koppi , 798 N.W.2d 358, 362 (Min n. 2011). An appellate court reviews jury instructions “ as a whole to determine whether [they] accurately state the law in a manner that can be understood by the jury. ” State v. Kelley , 855 N.W.2d 269, 274 (Minn. 2014). A district court has “considerabl e latitude” in selecting the language of jury instructions. State v. Gatson , 801 N.W.2d 134, 147 (Minn. 2011). Accordingly, t his court applies an abuse

- of

- discretion standard of review to a district court’s jury instructions. Koppi , 798 N.W.2d at 361. At the instructions conference, the prosecutor raised a question as to whether the district court’s instruction on third

- degree criminal sexual conduct should include the statutory definition of the word “coercion.” After Moore’s trial counsel objected, t he prosecutor withdrew the request, noting that a definition of “coercion” is unnecessary because the state’s theory is that Moore penetrated P.B. using force, not coercion. Neither the prosecutor nor Moore’s trial counsel raised a question concerning the definition of the word “force.” The district court gave the following jury instruction to explain the charge of third

degree criminal sexual conduct:12 The statutes of Minnesota provide that whoever intentionally engages in sexual penetration with another person and uses force or coercion to accomplish the penetration is guilty of a crime. The elements of criminal sexual conduct in the third degree are first, the defendant intentionally sexual penetrated [P.B.]. Sexual intercourse constitutes sexual pene tration if there is any intrusion, however slight, of the penis into the female genital opening. Cunnilingus constitutes sexual penetration if there is any contact between the female genital opening of one person and the mouth, tongue or lips of another p erson. Second, the sexual penetration occurred without the consent of [P.B.]. Consent means a person’s words or overt actions that indicate a freely given present agreement to perform a particular sexual act with the defendant. Consent does not mean the existence of a prior or current social relationship between the defendant and [P.B.], or that [P.B.] failed to resist a particular sexual act. Third, the defendant used force or coercion to accomplish penetration. Fourth, the defendant’s act took place on or about July 7, 2011, in Sherburne County. If you find that each of these elements has been proved beyond a reasonable doubt the defendant is guilty. If you find that any element has not been proven beyond a reasonable doubt, the defendant is not gui lty. This instruction is nearly identical to a pattern jury instruction for third

- degree criminal sexual conduct. See 10 Minnesota Dist. Judges’ Ass’n, Minnesota Practice

– Jury Instruction Guides , § 12.21, at 301 ( 5th ed. 20 06 )

. Moore concedes that he did not object to the jury instruction on the ground he now
argues on appeal and that this court should review only for plain error. See Minn. R. Crim. P. 31.02; Gatson , 801 N.W.2d at 146

- 47. Under the plain

- error test, an appellan t is entitled to relief on an issue to which no objection was made at trial only if (1) there is an13

error, (2) the error is plain, and (3) the error affects the appellant’s substantial rights. State v. Griller , 583 N.W.2d 736, 740 (Minn. 1998). If these three requirements are satisfied, an appellant also must satisfy a fourth requirement, that the error “seriously affects the fairness and integrity of the judicial proceedings.” State v. Little , 851 N.W.2d 878, 884 (Minn. 2014). If an appellate court con cludes that any requirement of the plain

error test is not satisfied, the appellate court need not consider the other requirements. State v. Brown , 815 N.W.2d 609, 620 (Minn. 2012). A. Whether District Court Erred We begin by considering whether the district court committed an error. See Griller , 583 N.W.2d at 740. As stated above, a district court’s jury instructions must “fairly and adequately explain the law of the case” and must not “materially misstate the
ap plicable law.” Koppi , 798 N.W.2d at 362. Moore relies on State v. Vance , 734 N.W.2d 650 (Minn. 2007), overruled on other grounds by State v. Fleck , 810 N.W.2d 303, 311 (Minn. 2012), for the proposition that “jury instructions must define the crime charge d and explain the elements of the offense to the jury.” Id. at 656; see also State v. Milton , 821 N.W.2d 789, 806 (Minn. 2012). Moore essentially asks this court to conclude that the jury instructions did not say enough to “fairly and adequately explain” the crime of which he was charged, Koppi , 798 N.W.2d at 362, or did not say enough to “define the crime charged and explain the elements of the offense to the jury,” Vance , 7 34 N.W.2d at 656. The extent to which a district court must explain the law of th e case , define the crime charged , and explain the elements of the offense naturally depends on both the14

facts and the law in a particular case and, thus, is not well suited to a bright

- line rule. In Peterson v. State , 282 N.W.2d 878 (Minn. 1979), the supr eme court stated that “the elements of the crime should be explained, but detailed definitions of the elements to the crime need not be given in the jury instructions if the instructions do not mislead the jury or allow it to speculate over the meaning of the elements.” I d. at 881. The qualifier in that statement suggests that detailed definitions of an element of an offense may be necessary if, without the additional detail, the instructions could mislead the jury or cause the jury to speculate about wha t the state must prove to obtain a guilty verdict. See id. Moore contends that, in this case, the district court’s instruction on third

- degree criminal sexual conduct needed additional details concerning the definition of the word “force,” for two reasons . First, he asserts that the legislature defined the word “force” for purposes of the criminal

- sexual

- conduct statute and, thus, gave the word a specific meaning as a matter of law. See Minn. Stat. § 609.341, subd. 3. Second, he a sserts that the statutory definition of force is narrower than the common understanding of the word, which jurors are more likely to know and apply in their deliberati ons, absent an instruction on the statutory definition

. He contends that t h e differences between the statutory definition and the lay definition give rise to the possibility that a jury might find a defendant guilty based on conduct that is within the lay definition but not within the statutory definition. For these reasons, Moore contends t hat the district court’s instruction in this case , which did not provide any definition of “force,” did not adequately explain the law to the jury.15

Moore’s argument has merit. The word “force,” as used in the statute that Moore is charged with violating, has a specific meaning. The legislature has determined that, in this particular context, “force” means:

the infliction, attempted infliction, or threatened infliction by the actor of bodily harm or commission or threat of any other crime by the actor agai nst the complainant or another, which (a) causes the complainant to reasonably believe that the actor has the present ability to execute the threat and (b) if the actor does not have a significant relationship to the complainant, also causes the complainan t to submit. Minn. Stat. § 609.341, subd. 3. 3 The term “bodily harm” is defined in the criminal code to mean “physical pain or injury, illness, or any impairment of physical condition.” Minn. Stat. § 609.02, subd. 7. Meanwhile, the lay definition of th e word “force” is different in significant ways. When used as a noun, the word traditionally meant “1. Strength or energy; active power; vigor,” or “3. Power, violence, compulsion, or constraint exerted upon a person or thing.” Webster’s New Internationa l Dictionary 985 (2d ed. 194 6 ) ; see also Webster’s Ninth New Collegiate Dictionary 482 (9th ed. 1986) (stating nearly identical definition) . A more contemporary dictionary defines the word similarly to mean, “[2.]b. The use of physical power or violence t o compel or restrain.” The American Heritage Dictionary of the English Language 68 5 ( 5 th ed. 20 11 ). Another dictionary defines the word as “2. strength or power exerted upon an object; physical

3 This definition is reflected in a pattern jury instruction. See 10 Minnesota Dist. Judges’ Ass’n, Minnesota Practice

– Jury Instruction Guides , § 12.01, at 264

- 65 (5th ed. 2006). The pattern instruction for the elements of third

- degree criminal sexual conduct makes a cross

- reference to the pattern instruction stating the definition of “force , ” without stating clearly that the definition should be included in the jury instructions

. See Minnesota Practice

– Jury Instruction Guides , § 12.21, at 301 n.1 ( citing Minnesota Practice

– Jury Instruction Guides , § 12.01, at 264

- 65).16

coercion; violence.” The Random House Dictionary of the Eng lish Language 7 48 (2d ed. 1983). We have found only one dictionary that includes a sense of the word that resembles the statutory definition: “[3.]c. violence or such threat or display of physical aggression toward a person as reasonably inspires fear of pain, bodily harm, or death.” Webster’s Third New International Dictionary 887 (3d ed. 1961). We agree with Moore that the most

- common lay definition of the word “force” is different from, and in some ways broader than , the statutory definition. In the context of this case, the legislature’s definition of the word require s proof that a defendant either inflict ed , attempt ed to inflict , or threaten ed to inflict bodily harm to P.B. 4 See Minn. Stat. § 609.341, subd. 3. As stated above, “bodily harm” mean s “physical pain or injury, illness, or any impairment of physical condition.” Minn. Stat. § 609.02, subd. 7. But the lay definitions of “ force ” usually do not reference bodily harm , physical pain , injury, illness, or phy sical impairment , either by those terms or similar terms . Thus, a jury appl ying the common understanding of the word “force” to the elements of third

- degree criminal sexual conduct could f ind a defendant guilty of the offense merely by concluding that he exerted “strength,” “energy,” or “power” against a victim, without any actual, attempted, or threatened infliction of bodily harm , as required by the legislature. Such an outcome would be inconsistent with a defendant ’s right to “a jury determination that he is guilty of every element of the crime with which he is charged.” State v. Caldwell , 803 N.W.2d 373, 384 (Minn. 2011) (citing Apprendi v. New Jersey , 530 U.S.

4 We confine our analysis to the first part of the definition because, in this case, there is no suggestion that Moore committed another crime against P.B. or thre atened to do so.17

466, 477, 120 S. Ct. 2348, 2356 (2000) , and In re Winship , 397 U.S. 358, 364, 90 S. Ct. 1068, 1072 (19 70)) (other citations omitted). For these reasons, this case is different from Peterson , in which the supreme court concluded that the challenged instruction , which omitt ed a statutory definition , was not

erroneous . See , 282 N.W.2d at 882. I n Peterson , “the commonly understood meaning of ‘great bodily harm’ was sufficient to convey the essentials of the element to the jury” and, significantly, was consistent with the statutory definition of that term. See id. at 881

- 82. But i n the present case, the lay definition of the word “force” is different from the statutory definition because the lay definition describes some conduct tha t is not within the statutory definition. For that reason, the jury instruction in this case did not accurately st ate the applicable definition of the word “force.” See State v. Bustos , ____ N.W.2d ____, 2015 WL 1452894 , *6 (Minn. Apr. 1, 2015) (concluding that jury instruction wa s erroneous because it was broader than statutory definition of “ domestic abuse”) ; State v. Ihle , 640 N.W.2d 910 , 91 6

- 1 7 (Minn. 2002) ( conclud ing that jury instruction was erroneous because it did not reflect narrow limits of prior supreme court opinion)

. Thus, the district court erred by not including the statutory definition of “force” in the jury instruction on third

- degree criminal sexual conduct. B . Whether Err or Is Plain We next must determine whether the district court’s error is plain. See Griller , 583 N.W.2d at 740. An error is “plain” if it is clear or obvious, and an error is cle ar or obvious if it “contravenes a rule, case law, or a standard of conduct, or when it disregards18

well

- established and longstanding legal principles.” State v. Brown , 792 N.W.2d 815, 823 (Minn. 2011) (citation omitted)

. To determine whether an error is plain, t his court “examines the law in existence at the time of appellate review.” State v. Kelley , 85 5 N.W.2d 269, 277 (Minn. 2014). Neither the supreme court nor this court previously has held that a jury instruction on third

- degree criminal sexual cond uct in violation of section 609.344, subdivision 1(c), must include the statutory definition of “force.” Similarly, neither the supreme court nor this court previously has held in any other type of prosecution that a jury instruction was erroneous because the instruction did not include a statutory definition of a word in the elements of the offense. 5 In Peterson , the supreme court provided useful guidance but nonetheless approved of the instruction given in that case

. 282 N.W.2d 881

- 82. Thus, the Peter son opinion did not provide clear warning that the jury instruction in this case must include the statutory definition of “force.” Similarly , the Ihle opinion involved an analogous situation but did not answer the question presented by Moore ’s appeal because the Ihle court was not concerned with a statutory definition

. See 640 N.W.2d at 917. Indeed, Moore’s appellate brief cites Ihle but not with emphasis

. In addition, t he Bustos

5 In several other states, appellate courts have held that a district court’s jury instructions were erroneous because they omitted a legal or statutory definition of a word in the elements of the offense. See, e.g. , McKee v. State , 488 P. 2d 1039, 1043 (Alaska 1971); Griego v. People , 19 P.3d 1, 7 (Colo. 2001); Abercrombie v. State , 478 N.E.2d 1236, 1239 (Ind. 1985); State v. Kellogg, 542 N.W.2d 514, 518 (Iowa 1996) In re Pouncy , 229 P.3d 678, 682 (Wash. 2010); Lucero v. State , 14 P.3d 920, 923 (Wyo. 2000). Similarly, some s tate appellate courts have stated that definitions should be included in jury instructions if the lay definition of a key word differs from the statutory or legal definition of that word

. See, e.g. , People v. Griffin , 9 4 P.3d 1089, 1093 (Cal. 2004); Kitchens v. State , 279 S.W.3d 733, 737 (Tex. Crim. App. 2007); State v. Dix , 273 N.W.2d 250, 256

- 57 (Wis. 1979).19

opinion does not speak to the issue presented by Moore ’s appeal becau se Bustos concerns a jury instruction that makes an affirmative misstatement of law. 2015 WL 1452894 at *6; see also Koppi , 798 N.W.2d at 362

- 64; State v. Kuhnau , 622 N.W.2d 552, 556

- 57 (Minn. 2001). In the present case, the district court did not misstate the elements of the charged offense but, rather, failed to includ e detail s that are necessary to fully expla in the applicable law. Accordingly, the pre - existing caselaw did not “clearly require [] ” a district court to include a statutory defini tion in its jury instructions in the present circumstances

. See Milton , 821 N.W.2d at 807 (concluding that error is not plain). Thus, the district court’s error is not plain. This conclusion is sufficient to u phold the conviction. C . Whether Instruction Affected Moore’s Substantial Rights Although we need not do so, see Brown , 815 N.W.2d at 620, we next consider whether the district court’s error affected Moore’s substantial rights. Griller , 583 N.W.2d at 74 0

. An error affects a defendant’s substantial rights “if the error was prejudicial and affected the outcome of the case.” Id. at 741. “In the context of jury instructions, we have held that an error affects substantial rights when there is a reasonable likelihood that a more accurate instruction would have changed the outcome in this case

. ” State v. Gutierrez , 667 N.W.2d 426, 434

- 35 (Minn. 2003) (quotation omitted). An appellant bears a “heavy burden ” in seeking to satisfy the third requirement. State v. Davis , 820 N.W.2d 525, 535 (Minn. 2012). T o establish that Moore used “ force ” to accomplish sexual penetration, the state needed to prove that he either (1) inflicted, attempted to inflict, or threatened to inflict20

bodily harm on P.B. or (2) committed or threatened to commit another crime against P.B. See Minn. Stat. § 609.341, subd. 3. As previously noted, we may confine our analysis to the first part of the definition of “force , ” which is concerned with bodily harm, because there is no suggestion in this case that Moore committed or threatened another crime against P.B. Proof of “bodily harm” requires evidence of “physical pain or injury, illness, or any impairment of physical condition.” Minn. Stat. § 609.02, subd. 7. The state introduced evidenc e that Moore caused P.B. physical pain. She specifically testified that she awoke to a “sharp pain” because Moore was biting one of her breasts. In addition, she testified that Moore pulled her hair and that she and Moore previously had engaged in hair p ulling in past sexual encounters for the purpose of caus ing pain. Furthermore, the state introduced evidence that Moore caused P.B. physical injuries consisting of five small lacerations on the walls of her vagina. Accordingly, the state introduced evide nce that is sufficient to persuade a properly instructed jury that Moore used “ force ” in his sexual penetration of P.B. T he third requirement of the plain

- error test is not concerned solely with whether the evidence is sufficient to prove the elements of the charged offense. The key question is whether “there is a reasonable likelihood that a more accurate instruction would have changed the outcome in this case

. ” See Gutierrez , 667 N.W.2d at 434

- 35 (quotations omitted)

. Our analysis of this question must account for the reality that “force” was not the most important issue at trial. See Kelley , 855 N.W.2d at 284 (concluding that plain error in not giving accomplice

- liability jury instruction did not affect appellant’s substantial rights in part becau se defense “did not focus on accomplice liability”).21

Rather, c onsent was the most important issue . The district court said so when ruling on Moore’s motion in limine . In closing argument, the prosecutor emphasized P.B.’s text message to Moore that she d id not want to have sex with him, as well as her testimony that she told Moore “no” while he assaulted her. Likewise, Moore’s trial counsel emphasized Moore’s statement to officers that the sexual intercourse was consensual, P.B.’s suggestive text message s to Moore before she arrived in Minnesota, and P.B.’s motive to lie in order to explain her bruised breast and thereby preserve her relationship with her fiancé. In his appellate brief, Moore states that consent was the “central issue” at trial. I f Moor e had had the benefit of a more

- complete explanation of the elements of the charged offense, it appears that he still would have had the same difficulty in persuading the jury that P.B. consented to sexual conduct. Moore contends that the prosecutor’s clos ing argument demonstrates that the erroneous instruction affected his substantial rights. Specifically, he asserts that the prosecutor assumed and applied an incorrect understanding of force . Moore is correct that part of the prosecutor’s a rgument is inc onsistent with th e statutory definition of “force.” But that misstatement represents only one isolated comment in a closing argument that span s approximately 12 pages of the trial transcript

. E lsewhere in her closing argument, the prosecutor discussed fo rce in a way that is consistent with the statutory definition , by stating that Moore penetrated P.B. with “force so that she has injuries.” In any event, we must assume that, if the district court had instructed the jury on the statutory definition of for ce, the prosecutor would have conformed her argument to that definition. For the reasons discussed above, we are unable to conclude that there is a22

reasonabl e probability that a properly instructed jury would have considered the evidence and the statutory definition of “force” and reached the conclusion that Moore did not use force when he sexually penetrated P.B. See Milton , 821 N.W.2d at 809. Thus, the district court’s erroneous instruction did not affect Moore’s substantial rights. This conclusion also is sufficient to uphold the conviction. Therefore, Moore is not entitled to a new trial despite the district court ’s err or in instructing the jury. D E C I S I O N The district court did not err by excluding evidence of P.B.’s mental

- health diagnosis. The district court’s error in its jury instruction on the elements of the charged offense of third

- degree criminal sexual conduct was not plain and did not affect Moore’s substantial rights. Affirmed.