This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2014). STATE OF MINNESOTA IN COURT OF APPEALS A15-1317 State of Minnesota, Respondent,

vs. Michael Anthony Clark, Appellant. Filed August 15, 2016 Affirmed Schellhas, Judge Hennepin County District Court File No. 27-CR-15-2675 Lori Swanson, Attorney Gene ral, St. Paul, Minnesota; and Michael O. Freeman, Hennepin County Attorney, Lee W. Barry, Assistant County Attorney, Minneapolis, Minnesota (for respondent) Cathryn Middlebrook, Chief Ap pellate Public Defender, Benjamin J. Butler, Assistant Public Defender, St. Paul, Minnesota (for appellant) Considered and decided by Larkin, Pr esiding Judge; Schellh as, Judge; and Smith, John, Judge. *

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.2 U N P U B L I S H E D O P I N I O N SCHELLHAS , Judge Appellant challenges his conviction of th ird-degree criminal sexual conduct, arguing that the district court violated his Fi fth Amendment right against self-incrimination by admitting evidence of his prearrest silence and erroneously excluded evidence of the victim’s previous sexual conduct with him. A ppellant also argues pro se that the court erred by denying his motion to suppress DNA evid ence obtained under a search warrant. We affirm. FACTS Appellant Michael Anthony Clark attended el ementary and middle school with K.J. and D.W., and Clark and K.J. reconnected years later in De cember 2013. At that time, Clark lived with K.P., with whom he had one child; K.J. lived with D.W., with whom he had a nine-year-old son, L.K. 1 On February 15, 2014, Clark, K.P., and their child went to K.J. and D.W.’s apartment for a get-together that included cooking, playing dice, drinking, dancing, and playing between the children. K.J. drank heavily and eventually passed out in the living room; he did not remember anythi ng from the time he passed out until he awoke the following morning. D.W. consumed abou t eight or nine shots of brandy. Around midnight, D.W. accompanied Clark, K.P., and their child out of the apartment building. D.W. then returned to her apartment, feeling “[r]eally drunk” and “dizzy, unbalanced and

1 “L.K.” is an abbreviation of the child’s nic kname, which we use for clarity because L.K.’s initials are the same as his father’s.3 . . . tired.” She entered her bedroom and closed the door, removed her pants, and went to bed wearing a tank top, bra, and panties. After D.W. went to bed, L.K. heard the doorbell ring and responded because he could not wake D.W. or K.J. L.K. saw Clark, who told L.K. that he was looking for his charger; L.K. let Clark into the apartment, and Clark went straight into D.W.’s bedroom and closed the door. After about five minutes , L.K. went into D.W.’s bedroom and saw Clark pull the covers over D.W., who was asl eep. Clark told L.K. to go back into his bedroom, which L.K. did. At some point, D.W. awoke to fi nd a man standing beside her bed and rubbing her upper thigh. The man appear ed to be wearing some of the same clothes that Clark wore earlier in the ev ening. D.W. asked, “‘Mike, is that you?’” The man did not respond. After “maybe a minute,” D.W. fell asleep again. When D.W. awoke the next morning, she immediately rememb ered the man in her bedroom and noticed that her panties were on the floor near where the man had been standing. D.W. felt “throbbing” and “soreness” and had “leakage” in her vaginal area. Based on those sensations, she “knew [she] had been sexually penetrated.” D.W. reported the incident to police onFebruary 17, 2014, and an officer interviewed D.W., K.J., and L.K. and collected D.W.’s tank top, bra, and panties. A nurse performed a sexual-assault examin ation of D.W, which included swabs of D.W.’s internal and external genitalia. Police ob tained a search warrant and collected a saliva sample from Clark. A male DNA profile was found on D.W.’s genital swab s; Clark’s DNA matched the male DNA profile, while K.J. was exclude d as a contributor to the profile.4 Respondent State of Minnesot a charged Clark with third-degree criminal sexual conduct (sexual penetration with physically helpless complain ant). The case proceeded to a jury trial, and after jury selection, the di strict court granted Cl ark’s petition to proceed pro se and discharged his pub lic defender. The jury rejected Clark’s consent defense and found him guilty of third-degree criminal sexual conduct, and the court sentenced Clark to 117 months’ imprisonment. This appeal follows. D E C I S I O N Clark’s prearrest silence Detective Mike Lutz testified at trial th at he left Clark a voicemail on March 18, 2014, asking Clark to return his call. When Clark did not re spond, Detective Lutz again called Clark on April 30 and re ached him. The district court allowed the state to play a recording of the call for the jury and admitte d the recording into evidence. Clark objected to admission of the recording and Detectiv e Lutz’s testimony on Fifth Amendment and relevance grounds. The reco rding relays the following: DETECTIVE LUTZ: Hi . Uh, I’m trying to contact Michael Clark. CLARK: Yes. This is Michael Clark. DETECTIVE LUTZ: Mr. Clark, my name is Mike Lutz. I am a detective with the Edina Polic e Department. Um, I would like to have gotten to this matter earlie r, but uh I just wasn’t able to get to it because of other things. That being said, um our department took a complaint um, in regard uh, to you and a uh [D.W.]. A [D.W.]. (Dial tone indicating that the call was disconnected.)5 Detective Lutz testified that he immediat ely called Clark again and received Clark’s voicemail. Clark argues that the recording refl ects that he “unequivocally invoked his Fifth Amendment right to silence,” that admissi on of the recording and Detective Lutz’s testimony violated his Fifth Am endment right against self-i ncrimination, and that we therefore must reverse his convic tion and grant him a new trial.
In State v. Borg , a case of first impression, a po lice officer sent a letter to the defendant, then an un charged, noncustodial suspect, which read: I would like to speak w ith you regarding an investigation that I am conduc ting. When I spoke with you briefly [previously], you indi cated that you had hired an attorney to represent you. Please have your attorney contact me as soon as possible to arrange an intervie w appointment. Thank you very much. 806 N.W.2d 535, 539 (Minn. 20 11) (quotation omitted). During the state’s case in chief, the officer testified that he did not receive a response to the letter. Id. at 540. A jury found the defendant guilty of third-degree criminal sexual conduct, and the defendant appealed his conviction, arguing that admission of eviden ce of his prearrest silence violated his Fifth Amendment right against self-incrimination. Id. at 537, 541. The su preme court disagreed, stating: The letter is not questioning, a nd the letter compels nothing. The letter is what [the officer] testified it was: a written attempt to interview [the defendant]. [The defendant]’s voluntary decision not to respond to the letter, assuming he received it, raises no issue under the Fifth Amendment. We conclude that the privilege against compelle d self-incrimination did not prevent the State from presenting evidence during the State’s case in chief of [the defendant]’s failure to respond to the letter.6 Id. at 543. The court held that “if a defendant’s silence is not in response to a choice compelled by the government to speak or remain silent, then testimony about the defendant’s silence presents a routine evidentiary question that turns on the probative significance of that evidence.” Id. (quotation omitted). Clark acknowledges the holding in Borg but argues that Salinas v. Texas , 133 S. Ct. 2174 (2013), abrogated Borg . According to Clark, “the relevant inqui ry has changed from the ‘compulsion’ inquiry of Borg to the ‘invocation’ inquiry of the Salinas plurality.” We disagree. In Salinas , the United States Supreme Court granted certiorari “to resolve a division of authority in the lower courts over whether the prosecution may use a defendant’s assertion of the privilege agains t self-incrimination during a noncustodial police interview as part of its case in chief.” 133 S. Ct. at 2179 (plurality opinion). But the Court did not resolve that issue. Id. A three-justice plurality c oncluded that the defendant failed to invoke his Fifth Amendment right agai nst self-incrimination during his interview and stated that the Court “ha[s] long held th at a witness who desires the protection of the privilege must claim it at the time he relies on it.” Id. (quotations omitted ). Two concurring justices did not join the plura lity’s opinion, instead concluding that “[the defendant’s] claim would fail even if he had invoked the privilege because the prosecutor’s comments regarding his precustodial silence did not compel him to give self-incriminating testimony.” Id. at 2184 (Thomas, J., concurring). And four justices dissented, pointing to cases in which the Court has held that “an individual, when silent, need not expressly7 invoke the Fifth Amendm ent if there are inherently comp elling pressures not to do so.” Id. at 2185, 2188 (Breyer, J., disse nting) (quotation omitted). “When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concu rred in the judgments on the narrowest grounds.” Marks v. United States , 430 U.S. 188, 193, 97 S. Ct. 990, 993 (1977) (quotation omitted). Because Salinas lacks a single rationale supported by a majority of the Justices, Borg remains binding authority for us. See State v. Allinder , 746 N.W.2d 923, 925 (Minn. App. 2008) (stating that “this court is bound to follow supreme court precedent”). Based

on Borg , we conclude that the district court’s admission of evidence of Clark’s prearrest silence during the state’s case in chief did no t violate his Fifth Amendment right against self-incrimination. 2 Under the supreme court’s holding in Borg , the admissibility of Detective Lutz’s testimony and the recording of the call presents “a routine evidentiary question that turns on the probative signifi cance of that evidence.” Borg , 806 N.W.2d at 543 (quotation omitted). “Evidentiary rulings re st within the sound discretion of the trial court and will not be reversed absent a clear abuse of discretion.” State v. Carridine , 812 N.W.2d 130,

2 Because Clark does not invoke the Minnesot a Constitution, we do not consider whether admission of the evidence of Clark’s prearres t silence violated his right against selfincrimination under the Minnesota Constitution. See Minn. Const. art. 1, § 7 (“No person shall . . . be compelled in an y criminal case to be a witn ess against himself . . . .”); State v. Johnson , 811 N.W.2d 136, 146 n.2 (Minn. App. 2012) (addressing only Fifth Amendment when appellant mentioned article I, section 7, of Minnesota Constitution in his brief but based arguments only on Fifth Amendment), review denied (Minn. Mar. 28, 2012).8 141 (Minn. 2012) (quotation om itted). “[T]he appellant has th e burden of establishing that the trial court abused its discretion and that appellant was thereby prejudiced.” State v. Holliday , 745 N.W.2d 556, 568 (Min n. 2008) (quotation omitted). Here, Borg presents no argument based on evidentiary rather than c onstitutional grounds that the district court abused its discretion by admitti ng evidence of Clark’s prearre st silence. We therefore conclude that Borg has failed to establish a clear abuse of discretion in the admission of that evidence. D.W.’s previous sexual conduct Clark argues that the district court errone ously excluded evidence of previous sexual conduct between Clark and D.W. “Due process requires that every de fendant be afforded a meaningful opportunity to present a complete defense.” State v. Richardson , 670 N.W.2d 267, 277 (Minn. 2003) (quotations omitted). Bu t “[t]he right to present a defense is not without limitations.” Id. “[B]oth the accused and the state must comply with procedural and evidentiary rules designed to ensure both fairness and re liability in the ascertainment of guilt and innocence.” Id. (quotation omitted). “E videntiary rulings are reviewed for an abuse of discretion, even when a constitutional violation is alleged.” State v. Wenthe , 865 N.W.2d 293, 306 (Minn. 2015). Minnesota’s rape-shield law provides that , in a prosecution for criminal sexual conduct, “evidence of the victim ’s previous sexual conduct sh all not be admitted nor shall any reference to such conduct be made in th e presence of the jury.” Minn. Stat. § 609.347, subd. 3 (2012); Minn. R. Evid . 412(1). Such eviden ce may be admissible when the consent of the victim is a defense in the case. Minn. Stat. § 609.347, subd. 3; Minn. R. Evid. 412(1).9 But the evidence can be admitte d only if its probative value is not substantially outweighed by its inflammatory or prejudicial nature. Minn. Stat. § 609.347, subd. 3; Minn. R. Evid. 412(1). Under the rape-shield law, a defendant may not offer evidence of the victim’s previous sexual conduct except acco rding to a specified proce dure. Minn. Stat. § 609.347, subd. 4 (2012); Minn. R. Evid . 412(2). The defendant must bring a motion setting forth an offer of proof of the evidence that he intends to o ffer “at least three business days prior to trial, unless later for good cause shown.” Minn. Stat. § 609.347, subd. 4(a). If the district court deems the defendant’s offer of proof to be sufficient, the court must order a hearing outside the presence of the jury to allow the defendant to make a full presentation of the offer of proof. Minn. Stat. § 609.347, subd. 4(b); Minn. R. Evid. 412(2)(B). After the hearing, if the court determin es that the offered evidence is admissible under one of the exceptions in the rape-shield law and that the probative value of the evidence is not substantially outweighed by its inflammatory or prejudicial na ture, the court must issue an order stating the extent to wh ich the evidence is admissible. Minn. Stat. § 609.347, subd. 4(c); Minn. R. Evid. 412(2)(C). In this case, on the second day of trial and following D. W.’s testimony, Clark gave notice of his intent to testify that he and D.W. engaged in sexual conduct together when they were in middle school an d again in 2000. The district court treated this notice as a motion to admit otherwise-inad missible evidence under an exception in the rape-shield law. Regarding the evidence of sexual conduct between Clark and D.W. when they were in middle school, the court said, “I wouldn’t let that in. It’s too remote to this instance to10 be relevant on the issue of present consent. ” And as to the eviden ce of sexual conduct between Clark and D.W. in 2000, the court sa id, “I’m also going to deny that motion for both reasons— lack of notice pretrial and because I think it’s too remote to be relevant on the issue of consent under Rule 412.” (Empha sis added.) Clark nevertheless argues that “[t]he court affirmatively did not exclude the evidence [of pr evious sexual conduct between Clark and D.W.] because of any timing problems with when it was offered.” 3 Clark is wrong. The court prohibited Clar k from introducing th e evidence both be cause he failed to provide the required pretrial notice and because the instances of previous sexual conduct were “too remote” to be relevant to this case . The court neither disc laimed reliance on the

3 Clark bases his argument on th e following statements in the court’s written order after its ruling on the record: [Clark] . . . presented his motion three days into trial. Although precedent would support denying [Clark]’s request on procedural grounds, this Court is reluctant to deny a defendant’s motion based so lely on his ignorance of procedure. In the interest of protec ting [Clark]’s constitutional rights, the Court assessed the motion in a light most favorable to [Clark], and opines that deni al of the motion is appropriate, irrespective of timeliness. [Clark] moved to present evidence of a sexual relationship between himself and [D.W.] eighteen years ago and again fourteen years ago. Although evidence of a sexual relationship between [Clark] and [D.W.] may be probative, the Court finds the a lleged encounters too remote in time. There is limited probative valu e in offering evidence of a prior sexual history betw een [Clark] and [D.W.] to demonstrate consent, more than a decade later. (Second emphasis added.)11 untimely notice as a basis for denying Clark’ s “motion” nor found good cause for the untimeliness of the notice. The court merely noted its reluctance to deny Clark’s motion solely on the basis of the untimely notice. As to the substantive admi ssibility of the evidence of previous sexual conduct between Clark and D.W., th e district court stated in its or der that “in a physically helpless case consent is not an issue” and therefore “t he existence of a prior relationship is not relevant.” Under Minnesota law, “[a] pers on who engages in sexual penetration with another person is guilty of criminal sexual conduct in the thir d degree if . . . the actor knows or has reason to know that the complainant is . . . physically helpless.” Minn. Stat. § 609.344, subd. 1 (2012). “‘Physically helpless’ means that a person is (a) asleep or not conscious, (b) unable to wit hhold consent or to withdraw consent because of a physical condition, or (c) unable to communicate n onconsent and the co ndition is known or reasonably should have been known to the actor.” Minn. Stat. § 609.341, subd. 9 (2012). Because the definition of “physically help less” includes a compla inant’s inability to withhold or withdraw consent or communicat e nonconsent, the district court erred in concluding that D.W.’s allege d consent was irrelevant to the charges in this case. See State
v. Berrios , 788 N.W.2d 135, 141–43 (Minn. App. 2010) (acknowledgi ng by implication relevance of victim’s alleged consent in cha llenge to sufficiency of evidence to support conviction of third-degree criminal sexual co nduct (physically help less complainant)), review denied (Minn. Nov. 16, 2010). But even if evidence of previous se xual conduct between Clark and D.W. was relevant, the evidence was admi ssible “only if the probative value of the evidence [wa]s12 not substantially outweighed by its inflamma tory or prejudicial nature.” Minn. Stat. § 609.347, subd. 3; Minn. R. Evid. 412(1). In its order, the district court stated: To assume that [D.W.]’s consen t to sexual encounters eighteen and fourteen years ago would show her propensity to engage in a sexual relationship with [C lark] in February 2014, would be placing a great burden on a jury to assess the varying degrees of human nature. Suchevidence would be highly prejudicial to [D.W.]’s right to deny a sexual partner at the age of thirty-two. The Court does no t believe these instances would provide the jury with any information conducive to their factfinding inquiry. The prior relatio nship, if true, occurred half a lifetime ago for [Clark] and [D.W.]. Youthful indiscretions long before motherhood, adulthood, and a long term monogamous relationship are of limited probative value fourteen and eighteen years later. The court clearly determined th at the probative value of the evidence of previous sexual conduct between Clark and D. W. was substantially outw eighed by the evidence’s inflammatory or prejudicial impact. We review the district court’s ev identiary ruling for an abuse of discretion. Wenthe , 865 N.W.2d at 306. Due to the length of time between Clark and D.W.’s purported pr evious sexual conduct and the date of the offense in this case, we conclude that the district court did not abuse its discretion by ruling that the evidence of previous sexual conduct between Cl ark and D.W. was inadmissible. Search warrant In an application for a search warrant for a sample of Cl ark’s saliva, Detective Lutz related facts gained through an other officer’s interviews of D.W., K.J., and L.K. Two days before trial, Clark moved to suppress any DNA evidence obtained as a result of the search warrant, arguing that the appl ication contained “reckless misrepresentations of fact material to the findings of prob able cause.” The district court denied the motion. In a pro13 se supplemental brief, Clark argues that the c ourt erred by denying his suppression motion. Specifically, Clark complains that some of L. K.’s statements during his interview with police were contradictory, revealed improper involvement of D.W. in the interview, and indicated that L.K. did not ob serve the interactions betwee n Clark and D.W. in D.W.’s bedroom. Clark contends that Detective Lutz ma de materially false statements in reckless disregard for the truth by relying on L.K.’s st atements in the application. Clark further contends that, without L.K.’s statements, the application was insufficient to support probable cause for the search warrant. Clark cites no legal authority in his pro se supplemental brief, and we therefore may decline to consider his claim of error regarding the denial of his suppression motion. See State v. Taylor , 869 N.W.2d 1, 22 (Minn. 2015) (“We deem arguments waived on appeal if a pro se supplemental brief contains no argu ment or citation to legal authority in support of the allegations.” (quotatio n omitted)). But if prejudicial error is obvious on mere inspection of the record, we may consider an unsupported allegation of error. Id. Here, prejudicial error is not obvious on mere in spection of L.K.’s inte rview statements and Detective Lutz’s search-warrant application. We conclude that the district court did not clearly err by finding that the search-warrant application did not include statements that were knowingly and intentionally false or ma de with reckless disregard for the truth. See State v. Andersen , 784 N.W.2d 320, 326–27 (Minn. 20 10) (reviewing validity of search warrant and stating that “the cl early erroneous standard contro ls our review of a district14 court’s findings on the issue of whether the a ffiant deliberately made statements that were false or in reckless disregard of the truth”). Affirmed.