This opinion will be unpublished and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

A15-0029

State of Minnesota, 

Respondent, 

vs. 

Raymond Joseph Traylor, 

Appellant.

Filed March 7, 2016

Affirmed

Halbrooks, Judge

Ramsey County District Court

File No. 62-CR-14-3082

Lori Swanson, Attorney General, St. Paul, Minnesota; and 

John J. Choi, Ramsey County Attorney, Peter R. Marker, Assistant County Attorney, 

St. Paul, Minnesota (for respondent)

Raymond Joseph Traylor, Rush City, Minnesota (pro se appellant)

Considered and decided by Halbrooks, Presiding Judge; Chutich, Judge; and 

Randall, 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

HALBROOKS, Judge

Appellant challenges his two convictions of first-degree criminal sexual conduct

on various grounds and raises several pro se arguments. We affirm.

FACTS

Appellant Raymond Joseph Traylor encountered D.W. at a liquor store on the 

morning of April 30, 2014. After talking about smoking some marijuana, they purchased 

a six-pack of beer and drove in Traylor’s vehicle to S.B.’s home. D.W. and S.B. were 

close friends and D.W. sometimes spent time with S.B. at her home. After realizing that 

S.B. did not have any marijuana, D.W. and Traylor left to go find some in the 

neighborhood. Unable to find any marijuana, they returned to S.B.’s home. Traylor, 

D.W., and S.B. sat in S.B.’s kitchen and talked while Traylor and D.W. drank beer. At 

some point, Traylor made derogatory remarks to S.B. about white people. S.B. told 

Traylor that she was offended, and Traylor apologized. 

According to D.W. and S.B., Traylor’s demeanor dramatically changed shortly 

after his comments about race. They testified that Traylor slapped D.W. so hard that she 

fell to the ground before Traylor proceeded to brutally rape and assault both D.W. and 

S.B. Photos taken by police after their arrival on the scene confirm that the two women 

sustained multiple physical injuries. D.W. was eventually knocked unconscious. At one 

point, Traylor locked S.B. in a bathroom that was adjacent to the kitchen. S.B. assumed 

that he did so in order to kill D.W. before turning his attention back to her.
3

S.B. had been expecting the arrival of her friend, R.N., during the time of the 

assault. R.N. and S.B. had been together earlier that morning, and R.N. had left to run 

errands before coming back to watch a movie with her. R.N. testified that the side door 

was locked when he arrived. He found that unusual because S.B. was expecting him, and 

he normally walked right in. R.N. immediately called 911 after hearing S.B. screaming 

and calling for him. 

About two minutes after he called 911, R.N. saw an African American male leave 

the front of the house. R.N. ran to the front of the house and relayed the license-plate 

number to the 911 dispatch operator in a second call. R.N. then went inside the house 

and found S.B., who had visible injuries, and D.W., who was unconscious on the floor. 

When D.W. regained consciousness, she cried out that the two women had been raped.

Traylor testified at trial that the sex with D.W. and S.B. was consensual in 

exchange for money and that the victims’ injuries were a result of needing to defend 

himself. He claimed that D.W. hit him with a purse that contained a small dog when he 

declined to take her to dinner and a movie later that week and that the two women teamed 

up like “Cagney and Lacey” to continue attacking Traylor as part of a scheme to rob him. 

Traylor testified that when he heard S.B. screaming for R.N., he concluded that R.N. was 

there to assist with the robbery, so he ran out the front door and left in his van.

Traylor was charged by complaint with two counts of first-degree criminal sexual 

conduct under Minn. Stat. § 609.342, subd. 1(e)(i) (2014). Although he was originally 

represented by a public defender, he fired his attorney and continued pro se with courtappointed standby counsel. A jury found Traylor guilty of both counts, and the district 
4

court sentenced him to 373 months in prison and a total fine of $10,000. Traylor brought 

several posttrial motions, which the district court denied. This appeal follows.1

D E C I S I O N

I.

Traylor argues that the district court erred by denying his motion for a mistrial and 

his alternative request for curative instructions after D.W., during Traylor’s pro se crossexamination of her, (1) called him a sex offender, (2) derided his choice to represent 

himself, and (3) urged the jury to look online at his lengthy criminal history. The denial 

of a motion for a mistrial is reviewed for abuse of discretion. State v. Jorgensen, 660 

N.W.2d 127, 133 (Minn. 2003); State v. Spann, 574 N.W.2d 47, 52 (Minn. 1998). A 

mistrial “should not be granted unless there is a reasonable probability that the outcome 

of the trial would be different.” Spann, 574 N.W.2d at 53. As with a motion for a 

mistrial, rulings concerning jury instructions are reviewed for abuse of discretion. State 

v. Cole, 542 N.W.2d 43, 50 (Minn. 1996) (“The refusal to give a requested jury 

instruction lies within the discretion of the district court and no error results if no abuse of 

discretion is shown.”).

“[T]he state has an obligation to caution its witnesses against making prejudicial 

testimony.” State v. Manthey, 711 N.W.2d 498, 506 (Minn. 2006). In Manthey, the 

 

1 Traylor’s principal brief was filed by an assistant appellate public defender. After the 

brief was filed, Traylor moved to dismiss his appellate counsel. This court granted that 

motion, noting that he had complied with the requirements as set forth in Minn. R. Crim. 

P. 28.02, subd. 5. Although Traylor continues pro se, this court “must consider the brief 

filed by the State Public Defender’s office on the defendant’s behalf.” Minn. R. Crim. 

P. 28.02, subd. 5(17).
5

supreme court found that the state did not fail its obligation with regard to witness 

testimony because the witness’s “potentially prejudicial comment was made during 

intense, emotional cross-examination, and does not appear to have been prompted by a 

desire to prejudice [the defendant].” Id. Similar circumstances exist here—all of D.W.’s 

potentially prejudicial comments that Traylor now objects to were elicited by Traylor 

during intense cross-examination when he pointedly questioned D.W. about events 

leading up to the assault and the specific sexual acts that occurred during the assault.

Nothing in the record suggests that the prosecutor attempted to elicit objectionable 

or prejudicial statements. In fact, before the prosecutor called D.W. to the stand, he 

advised the district court outside the presence of the jury that D.W. was very “animated” 

and “upset,” noting that the victim might have to take a break during her testimony. The 

district court agreed to break if necessary and cautioned Traylor to be aware of how he 

interacted with D.W. in front of the jury. Despite this, Traylor immediately objected

when D.W. entered the courtroom because she was holding the hand of her victim 

advocate.

Traylor points to three different kinds of comments made by D.W. during her 

cross-examination as particularly prejudicial. The first involves references to Traylor as 

a sex offender. Traylor asked D.W. whether her presence at the liquor store during 

morning hours meant that she is an alcoholic. She responded by asking Traylor if he was 

a sex offender. D.W. repeated the question again, and the district court cautioned her to 

answer Traylor’s question. Later during her cross-examination, D.W. again referred to 

Traylor as a sex offender when he showed her a picture of herself after the attack. 
6

Traylor contends that this was a reference to “a title that implied he had formally been 

classified as such based on his previous actions.” The state argues that D.W.’s use of the 

words “sex offender” referred to the sexual assault that Traylor was on trial for. We 

agree. D.W. and S.B. testified that they had never met Traylor before April 30, 2014. 

Not knowing Traylor before the day of the sexual assault, it is likely that D.W.’s reason 

for calling Traylor a sex offender was the result of what happened on April 30 rather than 

any knowledge of Traylor’s past charges or convictions.

The second type of comment concerned references to Traylor’s lack of a legal 

education. Specifically, D.W. made two statements about his lack of legal training: “This 

boy is going to be the most legal problem. I swear to God, you need to go to legal 

school. Make sure you go to legal school when you go to prison,” and “You don’t 

remember, but you’re supposed to be your own lawyer.” Traylor argues that D.W.’s 

statements “drew undue attention to [his] exercise of rights that are constitutionally 

protected.” But D.W.’s references to his lack of legal education immediately followed 

questions by Traylor that were very volatile and confusing to D.W. For example, he 

asked her, “[D]o you remember telling the officer . . . when he arrived on the scene that 

when you woke up from being knocked unconscious . . . that you stated . . . he raped me, 

quote, he raped you, too, unquote?” D.W. responded that she did not understand and

interpreted Traylor’s question to mean whether D.W., upon waking, had asked the officer

whether he had been raped too. After seeking clarification, D.W. followed with the 

statement regarding Traylor’s lack of legal training. 
7

There were also several times when D.W. answered Traylor’s questions with 

questions. The judge repeatedly instructed her to answer Traylor’s questions regardless 

of how difficult it was to do so. At one point, she asked the judge whether she had a right 

to cross-examine Traylor. It is tenuous at best to conclude that D.W.’s statements were 

improper commentary on Traylor’s constitutional right to represent himself at trial, 

especially in light of the fact that Traylor did not object to these statements when they 

were made. It is more likely, as the record reflects, that D.W. was confused by the 

questions and became frustrated by Traylor’s repetitive questioning.

The third reference occurred during a heated exchange between Traylor and D.W. 

after Traylor asked D.W. to identify herself in pictures showing close-ups of her injuries. 

D.W. urged the jury to look up Traylor’s history on the Internet. Although the district 

court did not immediately give a curative instruction, on at least one occasion before 

D.W.’s testimony and several times after it, the district court instructed the jury not to do 

any Internet research. The district court also admonished the jury to “keep an open mind 

until you’ve heard or seen all of the evidence in this case, and we also need to have you 

decide this case solely based on the testimony and exhibits that are received here in this 

courtroom and from nowhere else.” Nothing in the record indicates that any juror 

violated the district court’s instructions by accessing the Internet.

D.W.’s comments were made during intense, emotional cross-examination in 

response to very intimate, detailed questions concerning the sexual assault. Many of 

D.W.’s comments were made in response to Traylor’s questions reflecting his theory of 

defense, such as “[D]o you remember receiving $60 in cash from the defendant, 
8

Mr. Traylor, for sexual acts for Mr. Traylor that you would take for yourself and [S.B.]?” 

and “[D]o you remember having sex—consensual sex with the defendant . . . ?” D.W.’s 

responses were rooted in a clear, angry disagreement with his version of events, and the 

jury was given an opportunity to weigh the competing versions because Traylor testified 

on his own behalf. 

Even if we were to conclude that D.W.’s testimony was prejudicial, Traylor 

cannot demonstrate that the specific comments reasonably affected the outcome of the 

trial. The evidence against Traylor was overwhelming: the jury heard testimony from 

two victims who gave consistent accounts of the events; the nurse who examined the 

victims provided testimony that was consistent with their testimony; the victims had 

extensive documented injuries; R.N. provided consistent testimony and identified 

appellant at trial as the man he saw leave the house; the audio from the police officers 

who responded to the scene reflects that one of the women became highly emotional and 

exclaimed that they had both been raped; and Traylor’s DNA was found on S.B.

The record reflects that, although D.W. was highly emotional during most of her 

cross-examination, the district court appropriately attempted to control her outbursts by 

repeatedly directing her to contain her answers to the questions asked. Additionally, it 

could also reasonably be construed that D.W.’s outbursts were not unfavorable to 

Traylor. The jury was free to determine whether or not D.W. was a credible witness.

We conclude that D.W.’s comments did not reasonably affect the outcome of the 

trial. The district court properly exercised its discretion by denying a mistrial or 

declining to issue a curative instruction in response to this testimony.
9
10

II.

Traylor argues that the prosecutor committed prejudicial misconduct during his 

closing argument when he (1) stated that Traylor revictimized D.W. and S.B. while he 

was cross-examining them and (2) suggested to the jury that Traylor tailored his 

testimony based on the evidence he heard during trial. Traylor did not object during the 

closing. Accordingly, “an unobjected-to error can be reviewed only if it constitutes plain 

error affecting substantial rights.” State v. Ramey, 721 N.W.2d 294, 297 (Minn. 2006)

(citing Minn. R. Crim. P. 31.02). “In applying plain error analysis, we will reverse trial 

error only if there is (1) error, (2) that is plain, and (3) the error affects the defendant’s 

substantial rights.” State v. Hill, 801 N.W.2d 646, 654 (Minn. 2011). “An error is plain 

if it was clear or obvious.” State v. Strommen, 648 N.W.2d 681, 688 (Minn. 2002) 

(quotations omitted). 

Upon a showing of plain error, the burden shifts to the state to show that the error 

did not affect the defendant’s substantial rights. Ramey, 721 N.W.2d at 302. If the plainerror test is satisfied, this court “will correct the error only if the fairness, integrity, or 

public reputation of the judicial proceeding is seriously affected.” State v. Dobbins, 725 

N.W.2d 492, 508 (Minn. 2006) (quotation omitted). When assessing alleged 

prosecutorial misconduct during a closing argument, “we look to the closing argument as 

a whole, rather than to selected phrases and remarks.” Ture v. State, 681 N.W.2d 9, 19 

(Minn. 2004).
11

Revictimization

Traylor takes issue with the prosecutor’s statement that Traylor “revictimized” 

D.W. and S.B. during his cross-examinations of them. The United States and Minnesota 

Constitutions guarantee a defendant the right to due process. U.S. Const. amend. XIV; 

Minn. Const. art. I, § 7. A defendant is also guaranteed the right to a public trial by an 

impartial jury and to confront witnesses against him. U.S. Const. amend. VI; Minn. 

Const. art. I, § 6. 

The state argues that the prosecutor’s comment addressed D.W.’s and S.B.’s 

credibility and was not an attack on Traylor’s decision to confront his witnesses. 

“Although prosecutors may not personally endorse witnesses, the [s]tate is free to argue 

that a particular witness is credible.” State v. Pendleton, 759 N.W.2d 900, 912 (Minn. 

2009). But “[i]t is misconduct for a prosecutor to attack a defendant for exercising his 

right to a fair trial and to encourage the jury to punish him for what the prosecutor 

perceives as further victimization of the victim.” State v. McNeil, 658 N.W.2d 228, 235 

(Minn. App. 2003). The record here supports the conclusion that the prosecutor was 

addressing the victims’ credibility.

The prosecutor’s comment was couched in an extensive discussion about 

credibility. In fact, the prosecutor used the word directly after a commentary on the role 

of the jury in weighing witness credibility:

[O]ne of the things that you can take into consideration 

when—there’s a list of—a nonexclusive list that you can take 

into consideration when you’re evaluating the credibility of 

the witnesses here. Essentially: The manner; their ability to 

remember and know the facts in the case; their interest or lack 
12

of interest in a case; the reasonableness of their testimony in 

light of all of the other evidence; and any other factors that 

bear on believability and weight. What it really comes down 

to is, you need to use your common sense and good judgment.

. . . .

Now, just to add insult to injury, they had to be 

questioned by the very man who did this to them. They had 

to endure his repeated questions, essentially revictimizing 

them once again. Keep that in mind when you evaluate their 

testimony. . . .

. . . .

It’s the State’s burden to prove that the defendant did 

these crimes, and the burden is proof beyond a reasonable 

doubt. It’s the same burden that is in place for every criminal 

trial.

Because the comment was directly related to the victims’ credibility, we conclude that the 

term was not used to punish Traylor for exercising his right to confront his accusers.

But even if we were to conclude that the prosecutor’s comment was not a 

reflection on the victims’ credibility, Traylor is not automatically entitled to a reversal of 

his conviction. We must also determine that the error had a significant effect on the 

jury’s verdict. 

In assessing whether there is a reasonable likelihood that the 

absence of the misconduct would have had a significant effect 

on the jury’s verdict, we consider the strength of the evidence 

against the defendant, the pervasiveness of the improper 

suggestions, and whether the defendant had an opportunity to 

(or made efforts to) rebut the improper suggestions.

State v. Davis, 735 N.W.2d 674, 682 (Minn. 2007). The comment was isolated, and the 

evidence against Traylor was very strong. In addition to the strength of the evidence, a 
13

prosecutor’s error is mitigated by the issuance of proper jury instructions when “the trial 

judge cautioned the jury that it should consider only the evidence and that counsel’s final 

argument statements were not evidence, where the evidence of guilt was adequate, and 

where the prosecutor’s argument was otherwise proper.” State v. Ture, 353 N.W.2d 502, 

517 (Minn. 1984). Here, the district court advised the jury that “the arguments or other 

remarks of an attorney are not evidence,” stating that “[i]f the attorneys or I have made or 

should make any statement as to what the evidence is which differs from your 

recollection of the evidence, you should disregard the statement and rely solely on your 

own memory.” Additionally, the prosecutor reminded the jury:

Now, you are the sole judges of the facts in this case, 

and I’ll caution you right up front, what I say to you right 

now and what the defendant says to you while he’s up here is 

not in evidence. I want you to rely on your own recollection 

of what the witnesses testified to.

In light of the prosecutor’s closing argument as a whole and the strength of the 

evidence presented at trial, Traylor has not demonstrated that the prosecutor’s statements 

had a significant effect on the jury’s verdict.

Tailoring Testimony

Traylor argues that the prosecutor committed prejudicial misconduct by telling the 

jury that he tailored his testimony based on the evidence he heard at trial. A prosecutor 

“cannot use a defendant’s exercise of his right of confrontation to impeach the credibility 

of his testimony, at least in the absence of evidence that the defendant has tailored his 

testimony to fit the state’s case.” State v. Swanson, 707 N.W.2d 645, 657-58 (Minn. 

2006). “Without specific evidence of tailoring, such questions and comments by the 
14

prosecution imply that all defendants are less believable simply as a result of exercising 

the right of confrontation.” Id. at 658. In other words, if evidence of tailoring can be 

found in a review of the record, then such allegations are not improper.

Here, the record demonstrates that Traylor tailored his testimony on two different, 

but related, points. Traylor asserted the defense of medical impossibility during his 

opening statement, claiming that he suffers from priapism, which has rendered him 

impotent and unable to become aroused. He explained to the jury that, as a result, he was 

unable to penetrate with the force required to commit first-degree criminal sexual

conduct. He claimed that he and D.W. engaged in consensual sex in exchange for $60. 

Despite this theory, Traylor consistently argued in pretrial motions, posttrial motions,

during sentencing, and in his appeal that the DNA evidence taken from the victims did 

not match his. Related to his alleged priapism, he told the district court that “[t]he DNA 

evidence is that I cannot—it could not have been my DNA for the mere fact that . . . I 

wasn’t even able to get an erection.”

During the trial, D.W. and S.B. testified during direct examination that Traylor’s

penis was soft. Traylor cross-examined S.B. about whether his penis was erect or not. 

The state also questioned the nurse who first examined the victims, asking whether, 

“based on [her] training and experience, is it possible for a male to either ejaculate or 

expel semen without having an erect penis?” She responded that it is. After hearing 

D.W. and S.B. describe his penis as soft and the nurse’s explanation that DNA evidence 

can be obtained even if a penis is not erect, Traylor eliminated his defense of medical 

impossibility and focused on the theory of consensual sexual contact with the victims, 
15

stating that “[a]t this time, my penis is erect—my penis has been erect. [D.W.] had given 

me oral sex until my penis became erect.”

During his closing argument, Traylor told the jury that he had created a false story 

about priapism in order to protect himself from what he thought was malicious 

prosecution. He told the jury:

My penis was fully erect. When I started here today, I said 

that my penis was not erect. I said I had a medical condition 

called erectile dysfunction. I was claiming impossibilities 

with this statement. I did that to protect myself from such 

malicious prosecution, and I knew that I did not want it to be 

discovered that these people were lying until I was allowed to 

let the victims get on the stand and tell you, the people of the 

jury, that my penis was soft. I made that up. That was 

conjured out of my own mind, on protecting myself from lies. 

I shot that to attorneys, I shot that to judges, I shot that to 

prosecutors, because I knew they was maliciously prosecuting 

me for these women’s lies. There was perfectly nothing 

wrong with my penis the day we had sex, nothing at all, but 

[S.B.] and [D.W.] got on the stand and screamed his penis 

was soft—your penis was soft.

Traylor continued, “Their stories changed dramatically. They followed a figment of my 

imagination, ladies and gentleman, to fit their story to match my medical impossibilities.”

Because the record clearly reflects that Traylor tailored his testimony to the state’s 

evidence, it was not plain error for the prosecutor to tell the jury that Traylor tailored his 

testimony. Because Traylor has not established an error that was plain, we need not 

consider the remaining prongs of the plain-error analysis.

III.

Traylor argues that the district court violated his right to a complete defense by 

excluding all evidence pertaining to D.W.’s 2009 misdemeanor prostitution conviction. 
16

In reviewing a district court’s evidentiary rulings, we examine the record for abuse of 

discretion. State v. Crims, 540 N.W.2d 860, 864 (Minn. App. 1995), review denied

(Minn. Jan. 23, 1996). We will reverse an evidentiary error affecting an appellant’s 

constitutional rights unless it is harmless beyond a reasonable doubt. State v. Richardson, 

670 N.W.2d 267, 277 (Minn. 2003).

In cases involving criminal-sexual-conduct charges, evidence of a victim’s 

previous sexual conduct is generally inadmissible except by court order. Minn. Stat. 

§ 609.347, subd. 3 (2014); Minn. R. Evid. 412(1). But when consent of the victim is a 

defense in the case, a victim’s past sexual conduct may be admissible (1) “to establish a 

common scheme or plan of similar sexual conduct under circumstances similar to the 

case at issue” or (2) if there is evidence of the victim’s previous sexual conduct with the 

accused. Minn. Stat. § 609.347, subd. 3(a) (2014). Even then, the evidence “can be 

admitted only if the probative value . . . is not substantially outweighed by its 

inflammatory or prejudicial nature.” Minn. Stat. § 609.347, subd. 3; Minn. R. Evid. 

412(1). The burden falls on the defendant to establish the admissibility of sexual-history 

evidence. Crims, 540 N.W.2d at 868.

Traylor must demonstrate that the admission of D.W.’s misdemeanor prostitution 

conviction was relevant to his defense because it established a “common scheme or plan 

of similar sexual conduct under circumstances similar to the case at issue.” See Minn. R. 

Evid. 412(1)(A)(i). “To qualify as a pattern of clearly similar sexual behavior, the sexual 

conduct must occur regularly and be similar in all material respects.” State v. Davis, 546 

N.W.2d 30, 34 (Minn. App. 1996), review denied (Minn. May 21, 1996). Evidence of 
17

D.W.’s 2009 misdemeanor conviction for prostitution is not enough to support Traylor’s 

conclusory statement that “D.W.’s prior conviction was adequate to establish a common 

scheme or plan.” Traylor offers no other evidentiary support to bolster his claim that he 

agreed to pay D.W. for sex. In fact, a number of facts in the record belie this argument.

First, Traylor claims that he was somehow lured to S.B.’s home for paid sex with 

both D.W. and S.B. D.W.’s conviction does not establish a common scheme or plan that 

involves bringing men to S.B.’s home for sex. 

Second, the admission of D.W.’s prior misdemeanor conviction would not have 

helped to explain the victims’ injuries.

Third, Traylor argued posttrial that he fabricated the story about exchanging sex 

for money, stating that his pretrial attorney told him to say that he had consensual sex 

with her. The district court cautioned Traylor to think carefully before saying anything 

else because he was admitting to having perjured himself before the jury. Even at the 

sentencing hearing, Traylor denied having sex with the victims, stating that “I would just 

like to say that I just hope that they forgive me for getting into a fight with them, but I did 

not have sex with these people at all. At all.”

Even if the district court erred by excluding D.W.’s misdemeanor conviction, this 

error was harmless beyond a reasonable doubt because the conviction was referred to at 

other times, and the district court did not instruct the jury to disregard the comments on 

those occasions. During Traylor’s cross-examination of D.W., he attempted to establish 

that D.W. was a prostitute through the following exchange:
18

Q: . . . [D]o you remember making a statement to me that 

you was a prostitute and that you were willing to have sex for 

money?

A: No, sweetheart, I don’t mess with—first of all, I 

don’t—objection—

. . . .

A: They said me and him weren’t going to talk about that.

A little later during her cross-examination, D.W. admitted that she had “one prostitution 

situation.” Therefore, the jury heard on at least two occasions that D.W. had a history as 

a prostitute. For these reasons, the district court did not abuse its discretion by 

determining that D.W.’s misdemeanor prostitution conviction was inadmissible under 

Minn. Stat. § 609.347, subd. 3 and Minn. R. Evid. 412(1).

IV.

Traylor argues that the district court’s imposition of $5,000 in fines per conviction

is excessive because (1) the district court did not consider his indigency and (2) the fines 

are punitive. The United States and Minnesota Constitutions prohibit excessive fines. 

U.S. Const. amend. VIII; Minn. Const. art. 1, § 5. This court reviews de novo whether 

the imposition of a fine violates a defendant’s constitutional rights. State v. Kujak, 639 

N.W.2d 878, 883 (Minn. App. 2002), review denied (Minn. Mar. 25, 2002).

The test of whether a fine is excessive is proportionality: “[A] fine is 

unconstitutionally excessive if it is grossly disproportional to the gravity of the offense.” 

State v. Rewitzer, 617 N.W.2d 407, 413 (Minn. 2000). The proportionality analysis 

considers three factors: (1) the gravity of the offense and the harshness of the penalty, 

(2) a comparison of the contested fine with fines imposed for the commission of other 

crimes in the same jurisdiction, and (3) a comparison of the contested fine with fines 
19

imposed for commission of the same crime in other jurisdictions. Id. The district court 

need not make a finding that the defendant has the ability to pay before imposing a fine 

as part of a sentence. Perkins v. State, 559 N.W.2d 678, 693 (Minn. 1997).

In Minnesota, a defendant convicted of first-degree criminal sexual conduct under 

Minn. Stat. § 609.342, subd. 1, “may be sentenced to imprisonment of not more than 30 

years or to a payment of a fine of not more than $40,000, or both.” Minn. Stat. 

§ 609.342, subd. 2(a) (2014). First-degree criminal sexual conduct was previously a 

severity level 9 offense.2 See Minn. Sent. Guidelines IV (2004). Other level-9 crimes 

generally carry fines in the range of $30,000-$50,000. See, e.g., Minn. Stat. 

§§ 609.195(b) (max $40,000 for murder 3); .221 (max $30,000 fine for assault 1); .25, 

subd. 2(2) (max $50,000 fine for kidnapping with great bodily harm) (2014). The 

sentencing guidelines were revised in 2006, and criminal sexual conduct is now depicted 

on a separate chart. See Minn. Sent. Guidelines 4.B (2014).

The $10,000 fine for the convictions falls well below the maximum allowable 

statutory fine and is comparable to other fines in the state. As for fines in other 

jurisdictions, Traylor points only to federal caselaw supporting a consideration of a 

defendant’s indigency. He does not provide authority for the proposition that 

Minnesota’s schedule of fines is unconstitutionally defective in comparison to fines for 

 

2 Traylor asserts that criminal sexual conduct in the first degree was previously 

categorized as a level 8 offense, but this is incorrect. It appears that Traylor is 

referencing a criminal-sexual-conduct conviction under the same statute but under the 

subdivision that governs conduct with a victim under the age of 13, which was previously 

a level 8 offense.
20

first-degree criminal-sexual-conduct convictions in other jurisdictions. For these reasons, 

the two $5,000 fines imposed by the district court are not constitutionally excessive. 

V.

Traylor raises six additional arguments in his pro se supplemental brief. He argues 

that (1) the state framed him by planting DNA evidence, (2) there was no probable cause 

to proceed to trial, (3) the prosecutor improperly elicited false testimony from the 

victims, (4) he was the subject of malicious prosecution, (5) the state forfeited its briefs 

by filing past the deadline, and (6) he was prejudiced when D.W. and S.B. walked 

through the jury box.

DNA Evidence

In the first of Traylor’s pro se claims, he asserts that the state framed him by 

fraudulently and illegally planting DNA evidence so that he would be charged with 

criminal sexual conduct. He argues that his DNA was planted on the scene and that the 

City of St. Paul conspired to entrap him, going so far as to say that D.W. and S.B. were 

“paid actors” enlisted by the government. This claim is without merit.

The state called two DNA forensic scientists who tested the evidence collected 

from D.W. and S.B., and they confirmed that the sample matched Traylor’s DNA. 

Traylor declined to cross-examine them. He made no effort to discredit witness 

testimony at trial concerning his DNA. In both his posttrial motion to the district court 

and his appeal to this court, Traylor offers no factual or legal evidence supporting his 

claim that his DNA was planted. Nor does he offer an explanation of his decision not to 

cross-examine the Bureau of Criminal Apprehension forensic scientists. 
21

Probable Cause

Traylor claims that there was no probable cause to proceed to trial because there 

was no police report filed with the district court. This claim is without merit. Traylor 

was charged by complaint in Ramsey County District Court. There is nothing atypical 

about this document.

False Testimony

Traylor argues that the prosecutor committed misconduct by improperly feeding 

the victims information about his erectile dysfunction that Traylor says he told his 

defense attorney in order to determine whether he was being framed. This argument is 

without merit. No evidence supports a contention that the witnesses were fed information 

to frame Traylor. To the contrary, the record supports the conclusion that Traylor 

tailored his testimony to fit the state’s case.

Malicious Prosecution

Traylor claims that he was the subject of malicious prosecution. This claim is 

without merit. Traylor seems to consolidate his other claims into one overarching claim 

of malicious prosecution, noting that the prosecutor could have dismissed the charges, but 

did not. Traylor offers no legal or factual support for his contention that he was the 

subject of malicious prosecution.

Filing Deadline and Prejudice

Traylor’s final two arguments are waived, as they were raised for the first time in 

his pro se supplemental reply brief. Issues not raised or argued in appellant’s principal 

brief cannot be revived in a reply brief. McIntire v. State, 458 N.W.2d 714, 717 n.2 
22

(Minn. App. 1990), review denied (Minn. Sept. 28, 1990). Similarly, issues raised “for 

the first time in [an appellant’s reply brief in a criminal appeal],” having not been raised 

in the respondent’s brief, are “not proper subject matter for [the] appellant’s reply brief,” 

and they may be deemed “waived” and be “stricken” by an appellate court. State v. 

Vang, 774 N.W.2d 539, 558 (Minn. 2009). 

Affirmed.