                          This opinion will be unpublished and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
                                     A14-1317

                                   State of Minnesota,
                                      Respondent,

                                           vs.

                                   John Paul Warzecha,
                                        Appellant.

                                   Filed June 15, 2015
                                        Affirmed
                                      Minge, Judge

                             Mille Lacs County District Court
                                 File No. 48-CR-12-1806


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

Joe Walsh, Mille Lacs County Attorney, Milaca, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Rochelle R. Winn, Assistant
Public Defender, St. Paul, Minnesota (for appellant)


         Considered and decided by Schellhas, Presiding Judge; Larkin, Judge; and Minge,

Judge.





 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
                        UNPUBLISHED OPINION

MINGE, Judge

       Appellant John Warzecha was convicted of third- and fourth-degree criminal

sexual conduct for actions perpetrated against K.G. Appellant asserts that the prosecutor

committed misconduct during her closing statement by disparaging appellant’s consent

defense. Because the prosecutor did not commit plain error, we affirm.

                                         FACTS

       On August 18, 2012, K.G. and some friends walked to Muggs, a local bar in

Wahkon, Minnesota. K.G. testified that appellant, whom K.G. had never met, approached

her at Muggs, offered her a hundred dollar check, said: “This is to come home with me

tonight,” and that she told appellant to leave her alone. After Muggs closed, K.G. walked

to her apartment building with one of her friends.

       K.G.’s apartment was small. The living room was divided by a curtain that had an

area that served as a makeshift bedroom. K.G. slept in this area. Her three teenage boys

slept in the regular bedroom. During the weekend of August 18-19, 2012, only K.G.’s

oldest son, 18-year-old B.G., was at the apartment. After K.G. arrived at her apartment,

she discovered that appellant had gone to the apartment building with some of her

friends, who also lived there, because he needed a place to sleep. After some discussion

among the friends, K.G. agreed to let appellant sleep on her couch in the living room

area. K.G. went into her makeshift bedroom area, and appellant stayed on the couch. B.G.

was in the boys’ bedroom listening to music with earphones.




                                            2
      K.G. testified that she awoke to appellant kissing her, that she told him to “go

away, to just stop,” but that appellant continued kissing her on the face and “further

down,” that appellant then removed the blankets and began performing oral sex on her,

that she told appellant to stop and attempted to scream, but that he covered her mouth

with a pillow, and that appellant penetrated K.G. with his fingers and penis. During this

incident having heard some unusual sounds, K.G.’s male friend from downstairs entered

her apartment, saw appellant in K.G.’s bed, and pulled him off K.G. Hearing the activity,

B.G. entered the living room. The male friend and B.G. pushed appellant out of the

apartment and forced him down the stairs and out to the parking lot. B.G. called the

police. K.G. was taken to a hospital where an examination was performed and a DNA

sample was taken. Minnesota Bureau of Criminal Apprehension test results later

disclosed appellant’s DNA was on K.G.’s face and neck.

      Appellant disputes K.G.’s version of events. Appellant claimed that K.G.

approached him at Muggs on two different occasions. He denied writing her a check.

Appellant claims that K.G. invited him into her apartment and came from her sleeping

area in the middle of the night and tried to kiss him. Appellant insisted that any sexual

acts were consensual.

      The state charged appellant with third- and fourth-degree criminal sexual conduct.

Appellant pleaded not guilty and the matter proceeded to trial. The jury found appellant

guilty and the district court imposed a 74-month prison sentence. This appeal followed.




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                                     DECISION

       The issue on appeal is whether certain unobjected-to statements by the prosecutor

constituted such misconduct as to call for reversal. In reviewing claims of unobjected-to

prosecutorial misconduct, we apply a modified four part plain-error test. State v. Ramey,

721 N.W.2d 294, 298-99 (Minn. 2006). To establish plain error, appellant must first

prove that the prosecutor’s conduct constituted error and second that the error was

plain—that is, “[it] contravenes case law, a rule, or a standard of conduct.” Id. at 302.

Then, if appellant satisfies his burden, the third prong requires the state to prove that the

error did not affect appellant’s substantial rights. Id. The state must show there is no

reasonable likelihood that the absence of the misconduct would have a significant effect

on the jury’s verdict. Id.; see State v. Griller, 583 N.W.2d 736, 741 (Minn. 1998) (noting

that an error affects substantial rights when it is “prejudicial and affect[s] the outcome of

the case”). If all of the first three prongs are met, the fourth prong requires that the

reviewing court assess whether the error must “be addressed to ensure fairness and the

integrity of the judicial proceedings.” Ramey, 721 N.W.2d at 302. Ultimately, we will

reverse a conviction “only if the [prosecutorial] misconduct, when considered in light of

the whole trial, impaired [appellant’s] right to a fair trial.” State v. Powers, 654 N.W.2d

667, 678 (Minn. 2003).

       Appellant asserts that the misconduct was statements by the prosecutor that

improperly disparaged his defense. Appellant points to the prosecutor’s statement “that

because ‘we have DNA . . . the defendant has to claim it was consensual. He can’t deny




                                             4
he was there.’” This statement was contained in the following part of the prosecutor’s

closing argument:

              He wants you to believe there are no eye witnesses, but there
              were. There were witnesses that heard key important things.
              [The friend downstairs] heard the muffled sounds and are
              consistent with what [K.G.] told you, that the pillow was
              being put over her mouth or that the [appellant] kept putting
              his fists in her mouth to stop her from yelling out, and that
              would be creating muffled sounds. [The friend] heard that. He
              told the responding officer that initially on August 19th. He
              told Deputy Barnes that a few days later, and [B.G.] also did
              the same thing. [B.G.] heard his mom yelling out. She said
              repeatedly [the friend’s] name, and he said when asked, was
              she yelling? As you recall, he had his music playing, but he
              said it definitely was not a conversational tone and that it was
              repeated and obviously we have the DNA, so of course the
              defendant has to claim it was consensual. He can’t deny he
              was there.
                      Now, we have corroboration, corroboration to support
              what [K.G.] is saying.

(Emphasis added.)

       Appellant argues that these statements so disparaged his consent defense as to

deny him a fair trial. Appellant correctly argues that disparaging a defense can constitute

prosecutorial misconduct. State v. Salitros, 499 N.W.2d 815, 818 (Minn. 1993).

However, prosecutors may argue that a defense theory has no merit or is implausible in

view of the evidence offered at trial. Id.

       Here, the prosecutor did not characterize appellant’s consent defense as a formula-

driven stock defense. Rather, the prosecutor’s statements suggested that appellant was

claiming consent because the strength of evidence presented at trial—the friend’s and

B.G.’s eyewitness testimony, along with the DNA test results—was enough to prove that



                                             5
appellant engaged in a sexual act with K.G. In this setting, an obvious issue would be

whether appellant’s sexual contact with K.G. was consensual.

      Although the prosecutor’s specific comment may have been direct and strong, it

was harmless because the comment was brief in light of the closing argument as a whole.

We review closing arguments in their entirety when determining whether prosecutorial

misconduct occurred. State v. Vue, 797 N.W.2d 5, 15 (Minn. 2011). Here, the

prosecutor’s closing argument spanned 15 pages in the trial transcript. Appellant

challenged a single phrase, which was minor with the prosecutor’s entire closing

argument. Moreover, consent was the central issue at trial. The jury heard evidence from

K.G., from the eyewitnesses that corroborated her testimony, and from appellant. In this

context, the prosecutor’s comment did not dismiss appellant’s consent defense, but

merely explained the parties’ arguments based on the developments in the investigation

of the incident and the evidence presented at trial. We therefore conclude that the

prosecutor did not commit plain error that affected appellant’s substantial rights or

impaired appellant’s right to a fair trial. Because the state met its burden, we do not

address prong four.

      Appellant filed a pro se supplemental brief presenting eight alternative claims

without discussion or legal argument. None of the claims was presented to the district

court. We generally refuse to consider arguments that are not presented to and decided by

the district court, Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996), but exceptions may

be made for pro se criminal appellants. See Dale v. State, 535 N.W.2d 619, 624 (Minn.

1995) (considering pro se arguments raised on appeal).


                                           6
       Seven of appellant’s claims assert ineffective assistance of counsel. A defendant

has the right to effective assistance of counsel, which we examine under a two-prong

analysis. State v. Bobo, 770 N.W.2d 129, 137 (Minn. 2009). First, a “defendant must

show that counsel’s representation fell below an objective standard of reasonableness.”

Strickland v. Washington, 446 U.S. 668, 687–88, 104 S. Ct. 2052, 2064 (1984). We apply

“a strong presumption that counsel’s conduct falls within the wide range of reasonable

professional assistance.” Id. at 689, 104 S. Ct. at 2065. Second, a “defendant must show

that there is a reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different.” Id. at 694, 104 S. Ct. at 2068.

       In reviewing appellant’s ineffective-assistance-of-counsel claims, we observe that

they focus on defense counsel’s trial strategy. We ordinarily “give trial counsel wide

latitude to determine the best strategy for the client.” State v. Nicks, 831 N.W.2d 493, 506

(Minn. 2013). “Particular deference is given to the decisions of counsel regarding trial

strategy. ‘Which witnesses to call at trial and what information to present to the jury are

questions that lie within the proper discretion of the trial counsel.’” State v. Lahue, 585

N.W.2d 785, 789–90 (Minn. 1998) (quoting State v. Heinkel, 322 N.W.2d 322, 326

(Minn. 1982)). When considering trial counsel’s performance in this case, appellant’s

claims are not persuasive and do not satisfy the two-prong analysis.

       Appellant also claims that the district court abused its discretion by sentencing him

to 74 months. Generally, we will not “review a district court’s exercise of its discretion to

sentence a defendant when the sentence imposed is within the presumptive guidelines

range.” State v. Delk, 781 N.W.2d 426, 428 (Minn. App. 2010), review denied (Minn.


                                             7
July 20, 2010). Because the district court sentenced appellant within the range provided

in the applicable box on the sentencing guidelines’ grid and because appellant made no

showing of compelling reasons to depart from the presumptive range, we conclude that

the district court did not abuse its discretion when sentencing appellant to 74 months.

       Affirmed.




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