Opinion
No. C1-96-2256.
Filed August 12, 1997.
Appeal from the District Court, Hennepin County, File No. 96010478.
John M. Stuart, State Public Defender, Sharon Jacks, Assistant Public Defender, (for appellant)
Hubert H. Humphrey, III, Attorney General, and
Michael O. Freeman, Hennepin County Attorney, Linda M. Freyer, Assistant County Attorney, (for respondent)
Considered and decided by Parker, Presiding Judge, Crippen, Judge, and Short, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1996).
UNPUBLISHED OPINION
A jury convicted Kris Alyn Walker of third-degree criminal sexual conduct in violation of Minn. Stat. § 609.344, subd. 1(c). On appeal, Walker argues: (1) the evidence is insufficient to support his conviction; and (2) the prosecutor committed prejudicial misconduct by making improper statements of opinion regarding witness credibility during closing argument. We affirm.
DECISION
When evaluating the sufficiency of the evidence supporting a conviction, our review is limited to whether a jury could reasonably have found the defendant guilty of the charged offense. State v. Davidson , 481 N.W.2d 51, 58 (Minn. 1992) (quoting State v. Alton , 432 N.W.2d 754, 756 (Minn. 1988)). We view the evidence in the light most favorable to the verdict, and assume the jury believed the state's witnesses while disbelieving any contrary evidence. State v. McKenzie , 511 N.W.2d 14, 17 (Minn. 1994).
Walker argues the state presented insufficient evidence to show his sexual penetration of the victim was accomplished by force or coercion. See Minn. Stat. § 609.344, subd. 1(c) (1996) (defining third-degree criminal sexual conduct as the use of force or coercion to accomplish sexual penetration of another person). However, the record demonstrates: (1) the victim called her friend and the police almost immediately after the incident, and was crying and hysterical; (2) despite minor inconsistencies and omissions, the victim's testimony regarding Walker's attack matched the statements she gave police immediately after the incident; (3) during a sexual trauma examination of the victim shortly after the incident, a nurse discovered a great deal of redness and swelling and a tear in the lower part of the victim's vaginal opening; (4) the nurse testified the tear was indicative of "forceful contact," and the redness and swelling were consistent with abrasion and soft tissue trauma, suggesting some "forceful impact"; (5) Walker's testimony at trial directly contradicted the statement he initially gave the police; and (6) four individuals, including two police officers, a friend, and the examining nurse, provided testimony regarding the victim's statements that corroborated the victim's testimony. Given these facts, we cannot say the evidence was insufficient to support Walker's conviction. See State v. Pieschke , 295 N.W.2d 580, 584 (Minn. 1980) (recognizing weighing credibility of witnesses is exclusive function of jury, and holding inconsistencies in state's case do not require reversal of jury verdict).
Walker also argues the prosecutor committed prejudicial misconduct during her closing argument by making statements of personal opinion regarding witness credibility. See State v. Porter , 526 N.W.2d 359, 364 (Minn. 1995) (recognizing it is improper for prosecutor in closing argument to personally endorse credibility of witnesses or inject his or her personal opinion regarding same). We disagree. Although the prosecutor made overt statements questioning the veracity of Walker's testimony, the record shows: (1) the prosecutor supported her statements with objective evidence presented at trial; (2) she did not misstate or fabricate any testimony; (3) Walker's defense counsel did not object to the statements or request cautionary instructions regarding them; and (4) the trial court properly instructed the jury that statements of counsel were not evidence, and the jury could base its verdict only on the evidence. Under these circumstances, we cannot say the prosecutor's statements constituted a clear violation of the personal opinion rule. See State v. Everett , 472 N.W.2d 864, 870 (Minn. 1991) (noting purpose of rule is to prevent attorney from becoming unsworn witness to proceeding, and affirming conviction where prosecutor's statements did not "clearly and plainly" violate rule); see also State v. Schultz , 262 N.W.2d 411, 416 (Minn. 1978) (holding statements of personal opinion constituted harmless error where trial court gave proper cautionary instructions regarding evidence). Walker is not entitled to a new trial.