                        This opinion will be unpublished and
                        may not be cited except as provided by
                        Minn. Stat. § 480A.08, subd. 3 (2012).

                             STATE OF MINNESOTA
                             IN COURT OF APPEALS
                                   A13-2355

                                  State of Minnesota,
                                      Respondent,

                                          vs.

                                 Shelby Ivan Charles,
                                      Appellant.

                               Filed December 29, 2014
                                      Affirmed
                                   Crippen, Judge

                            Hennepin County District Court
                              File No. 27-CR-12-37597


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

Michael O. Freeman, Hennepin County Attorney, Linda K. Jenny, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Glenn P. Bruder, Mitchell, Bruder and Johnson, Edina, Minnesota (for appellant)


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

Crippen, Judge.




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                         UNPUBLISHED OPINION

CRIPPEN, Judge

       Challenging his conviction of first-degree criminal sexual conduct, appellant’s

primary contention centers on his spouse’s decision not to testify after she recanted an

accusatory statement to police. He alleges that the state threatened to prosecute his

spouse if she testified and thereby violated his constitutional right to present a full and

complete defense. Appellant also maintains that the district court abused its discretion by

admitting prejudicial evidence and by denying his motion for a mistrial, that the evidence

was insufficient to support his conviction, and that the district court plainly erred by

failing to instruct the jury on the defense of voluntary intoxication. Because the record

does not establish that the prosecutor substantially interfered with the witness’s decision

to testify, and because appellant’s remaining claims are without merit, we affirm.

                                         FACTS

       On October 21, 2012, J.R. told her great aunt T.C. that T.C.’s husband, appellant

Shelby Ivan Charles, had “tried to touch [J.R.’s] private part.” T.C. reported J.R.’s

allegation to child protection, and the matter was referred to law enforcement for

investigation.   J.R. was subsequently interviewed by a forensic investigator at

CornerHouse and examined by a pediatrician. J.R. told the investigator that appellant

asked to see her “jammy sue,” and stated that appellant “touched inside [her] jammy

sue,” and “on the skin.” The investigator asked J.R. what she was referring to by “jammy

sue.” J.R. indicated that she was referring to her vagina.




                                             2
       Appellant was arrested and charged with one count of first-degree criminal sexual

conduct. At trial, J.R. testified that appellant entered her bedroom, told her to show him

her “pussy” and put his finger “inside [her] private part.” J.R. believed that appellant was

intoxicated; she testified that he smelled like alcohol and stated that he told her that he

would buy her an “airplane” and a “whole bunch of stuff” if she let him touch her.

       Appellant denied engaging in sexual penetration of J.R. He testified that he and

T.C. had recently fought about whether J.R. should continue to live in their residence.

Appellant stated that he asked T.C. to return J.R. to her mother and that T.C. and J.R. left

the home shortly thereafter. Appellant testified that T.C. falsified the sexual abuse

allegations so that appellant would be removed from the home and T.C. could continue to

care for J.R.

       J.R.’s examining pediatrician testified that J.R. told her that appellant had

“touched [her] down there” and that J.R. “vaguely pointed” to her vagina.                The

pediatrician also testified that J.R. did not inform her that appellant digitally penetrated

her and that she did not locate any evidence of physical injury on J.R. She did testify,

however, that she would not expect physical injury from digital penetration and that it

was possible that J.R.’s perception regarding penetration was inaccurate.

       Both parties anticipated that T.C. would testify at trial. But prior to jury selection,

T.C.’s attorney informed the district court that T.C. would exercise her Fifth Amendment

right against self-incrimination and decline to testify. The district court ordered that

neither party make reference to out-of-court statements made by T.C. or to T.C.’s




                                              3
decision not to testify. The jury found appellant guilty of first-degree criminal sexual

conduct. This appeal follows.

                                      DECISION

                                              1.

       Appellant argues that the state violated his right to present a full and complete

defense because the prosecutor substantially interfered with T.C.’s decision to testify.

Prior to trial, T.C. signed and had notarized a statement in which she recanted the

allegations that she made against appellant. T.C. stated that appellant told her that she

had to choose between J.R. and him, that she fabricated the allegations against appellant

in order to “keep [J.R.] and get rid of [appellant],” and that she instructed J.R. to tell the

doctor that appellant touched her.      T.C. stated that she wanted to recant her prior

allegations because she “[had] gotten [appellant] in trouble for something he didn’t do.”

       On the day of trial, T.C.’s attorney informed the district court that the state had

informed T.C. that it “would prosecute her whatever she testifies to,” that “he’s going to

prosecute her with either giving false statements to the police or prosecute her for

perjury.”   Likewise, the prosecutor also indicated that “[T.C.]’ll be prosecuted.          It

depends on the outcome.” No record was made of the conversation, if any, that the

prosecutor had with T.C. or her attorney, and no offer of proof was made regarding what

T.C. would have testified to after she exercised her Fifth Amendment rights.

       “Due process requires that defendants be afforded meaningful opportunity to

present a complete defense.” State v. McArthur, 730 N.W.2d 44, 54 (Minn. 2007). The

right to present a complete defense includes “the right to present the defendant’s version


                                              4
of the facts through the testimony of witnesses.” State v. Richardson, 670 N.W.2d 267,

277 (Minn. 2003). But a defendant does not possess the right to compel a prospective

witness to waive his or her Fifth Amendment privilege against self-incrimination. State

v. Moose, 266 N.W.2d 521, 525 (Minn. 1978).

       Prosecutors are expected to ensure that witnesses understand their Fifth

Amendment right against self-incrimination and to warn witnesses about the risks of

committing perjury. State v. Graham, 764 N.W.2d 340, 349 (Minn. 2009).              But the

prosecutor, in making such a warning, cannot “exert such distress on the witness’ mind”

as to prevent the witness from making a voluntary choice to testify. Id.

       In determining whether the state improperly threatened a witness, we are to

consider whether the state’s interference with the witness’s decision to testify was

substantial. Id. This determination is fact specific and includes consideration of “the

manner in which the prosecutor . . . raises the issue, the language of the warnings, and the

prosecutor’s . . . basis in the record for believing the witness might lie.” Id. at 350

(quotations omitted). Whether a due process violation has occurred is a question of

constitutional law, which we review de novo. State v. Bobo, 770 N.W.2d 129, 139

(Minn. 2009).

       In the circumstances of this case, the risk that T.C. would commit perjury was

evident; she had made several conflicting statements and would be required to testify at

trial that one of them was false.      Thus, the prosecutor’s duty to ensure that T.C.

understood her right against self-incrimination was implicated, and the prosecutor was

required to warn T.C. about the dangers of testifying falsely.             The prosecutor


                                             5
subsequently informed T.C.’s attorney about the risks that T.C. faced if she testified,

including the possibility of criminal prosecution. But nothing in the record indicates that

the prosecutor’s warning was made for the purpose of coercing T.C., and there is no

information in the record that demonstrates that the manner in which the prosecutor made

the warning was intimidating or otherwise excessive. Based upon this record, we cannot

conclude that the prosecutor’s warnings caused T.C. such distress as to prevent her from

deciding to testify freely and voluntary.

       In addition, there are several other factors demonstrating that T.C. made her

decision not to testify freely and voluntarily. T.C. retained her own attorney and spoke to

him regarding her rights and the consequences of her decision to testify. The opportunity

to consult with counsel demonstrates that the witness’s decision whether or not to testify

was made freely and voluntarily.        Graham, 764 N.W.2d at 351.         Moreover, T.C.

acknowledged, before she retained counsel or spoke to the prosecutor, that she knew the

risks she faced regarding her decision to recant. In her statement to appellant’s trial

counsel, T.C. admitted that her recantation was inconsistent with the allegations that she

made to law enforcement and indicated that she understood that her statement could lead

to “additional problems.”     For these reasons as well, we conclude that the state’s

interference with the witness’s decision to testify was not substantial.

       Finally, even if we were to conclude that the state substantially interfered with

T.C.’s decision to testify, reversal would not be warranted because the record does not

demonstrate that appellant suffered prejudice. Generally, a defendant is not entitled to a

new trial in the absence of prejudicial error. State v. Beecroft, 813 N.W.2d 814, 846


                                              6
(Minn. 2012).        Here, T.C.’s attorney stated that T.C. would only tell “the truth,”

“[w]hatever the truth is.” The prosecutor stated before trial that he believed T.C. would

“recant her recantation,” and appellant assumes on appeal that T.C. would have testified

in his favor.       No offer of proof was made regarding the substance of T.C.’s trial

testimony. Because we cannot identify the harm that appellant suffered from the loss of

T.C.’s testimony, we cannot conclude that appellant was prejudiced by T.C.’s decision

not to testify.

                                                 2.

       Appellant also argues that the district court erred by admitting portions of a

telephone call that he made to T.C. following her decision to exercise her Fifth

Amendment right. At trial, the state played the following segment:

                  T.C.: I’m, I’m not against you.

                  Appellant: Here’s what I’m telling you. You’re not helping
                  me. That’s not helping me. That’s against me. It’s not going
                  to work out [T.C.]. Now that’s two things that I can do here.
                  If you can get Ella to say that none of this shit happened, that
                  the girl didn’t tell her that. Or I can always say you was in
                  there helping me. See I can tell them people, look, here my
                  wife helped me do this. Now, do you want that to happen?

                  T.C.: No.

                  Appellant: Ok then, so don’t think you’re outta the woods yet,
                  [T.C.], cause you’re not. And you think you’re smart, and you
                  don’t give a fuck about me.

Appellant argues that the district court should have reviewed the entire recording to

determine whether additional portions should have been played for contextual purposes




                                                 7
or that the district court should have excluded the portion that was played because it was

unfairly prejudicial.

       “Evidentiary rulings rest within the sound discretion of the [district] court and will

not be reversed absent a clear abuse of discretion.” State v. Amos, 658 N.W.2d 201, 203

(Minn. 2003). But the erroneous admission of evidence does not warrant reversal unless

the error “substantially influence[d] the jury’s decision.” State v. Nunn, 561 N.W.2d 902,

907 (Minn. 1997). On review, appellant bears the burden of establishing that the district

court abused its discretion and that appellant suffered prejudice. Id.

       When a party introduces into evidence part of a recorded statement, the adverse

party may require the introduction of any other part of the recorded statement which

should be considered contemporaneously with it. Minn. R. Evid. 106. The “rule of

completeness” applies only when additional portions of the recorded statement are

necessary to give the jury the full understanding of the facts. State v. Mills, 562 N.W.2d

276, 286–87 (Minn. 1997). The rule of completeness may not be used to introduce

statements that are irrelevant to the issues at hand. Id.

       At trial, appellant conceded that additional portions of the recording included

several statements by T.C. that had previously been excluded by the district court’s pre-

trial order. The rule of completeness does not permit parties to introduce additional

portions of a recording if those portions include inadmissible evidence. State v. Bauer,

598 N.W.2d 352, 368 (Minn. 1999). And appellant has not reported any other portions of

the conversation that might be admissible; as a result, it was not an abuse of the district




                                              8
court’s discretion to exclude additional portions of the recording from evidence, and

appellant has failed to demonstrate prejudice.

       Appellant contends that the district court should have reviewed the entire

recording to determine whether additional portions should have been played for the jury.

But under rule 106, the burden is on the party objecting to the recording to disclose the

additional portions the objecting party believes should be played. See Minn. R. Evid. 106

(stating that “an adverse party may require the introduction . . . of any other part” of the

statement); see also State v. Grigsby, 806 N.W.2d 101, 114 (Minn. App. 2011) (requiring

party seeking review to disclose record of unredacted statement to permit meaningful

appellate review), aff’d, 818 N.W.2d 511 (Minn. 2012). Appellant did not disclose to the

district court the portions of the recording that he wished the jury to hear at trial and does

not identify on appeal the portions that the district court should have played.1

       For similar reasons, appellant’s claim that the admission of the redacted recording

was unfairly prejudicial also fails. Relevant evidence may be excluded if its probative

value is substantially outweighed by the danger of unfair prejudice. Minn. R. Evid. 403.

“[U]nfair prejudice is not merely damaging evidence, even severely damaging evidence;

rather, unfair prejudice is evidence that persuades by illegitimate means, giving one party

an unfair advantage.” State v. Bell, 719 N.W.2d 635, 641 (Minn. 2006) (quotation

omitted). Rule 403 generally favors the admission of relevant evidence. State v. Schulz,

691 N.W.2d 474, 478 (Minn. 2005).

1
  Appellant notes that the state never provided his trial counsel a full copy of the
recording, but he does not argue on appeal that the state violated its discovery
obligations.

                                              9
       Here, the redacted recording helped establish that appellant attempted to influence

a potential witness’s testimony, which is evidence that is relevant both to appellant’s guilt

and credibility. See State v. Thao, 649 N.W.2d 414, 420–21 (Minn. 2002) (stating that

defendant’s attempt to influence testimony supported finding of guilt). Because the

credibility of appellant was a key issue to be decided by the jury, the redacted recording

was highly probative. And appellant has failed to show that the evidence was unfair,

either in its content or in omitting relevant evidence. The district court did not abuse its

discretion by admitting the redacted portion of the recording into evidence.

                                              3.

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

following the testimony of an investigator with the county attorney’s office. During cross

examination of the investigator, appellant’s trial counsel asked whether he was aware that

the events surrounding his investigation were alleged to have occurred in October. The

investigator responded:

              That’s what I – it didn’t say that in the intake. It just said that
              she told – I believe it says that he told – [appellant] told the
              aunt that something happened and the aunt asked [J.R.].
              That’s what that said.

The district court struck the investigator’s answer from the record.                Appellant

subsequently moved for a mistrial, arguing that the statement constituted inadmissible

hearsay, that it contradicted the district court’s order excluding T.C.’s out-of-court

statements, and that the statement was unfairly prejudicial. The district court denied




                                              10
appellant’s motion and offered to provide a curative instruction if appellant requested.

Appellant did not request an instruction.

       We review the denial of a motion for a mistrial for an abuse of discretion. State v.

Jorgensen, 660 N.W.2d 127, 133 (Minn. 2003). The district court is in the best position

to evaluate whether an inadvertent outburst caused a defendant prejudice, or whether

there is a reasonable probability that the outcome of the trial would be different had the

outburst not occurred.     State v. Manthey, 711 N.W.2d 498, 506 (Minn. 2006).             In

determining whether potentially prejudicial, but inadvertent, testimony deprived a

defendant of the right to a fair trial, we consider: “the nature and source of the prejudicial

matter, the number of jurors exposed to the influence, the weight of evidence properly

before the jury, and the likelihood that curative measures were effective in reducing the

prejudice.” State v. Hogetvedt, 623 N.W.2d 909, 914 (Minn. App. 2001) (quotation

omitted), review denied (Minn. May 29, 2001). Generally, “unintended responses under

unplanned circumstances . . . do not require a new trial.” State v. Hagen, 361 N.W.2d

407, 413 (Minn. App. 1985), review denied (Minn. Apr. 18, 1985).

       Appellant challenged testimony from a state witness that was well beyond the

scope of the question posed by appellant’s trial counsel. There is no showing that the

state was responsible for eliciting the testimony, and the remark itself was brief and

relatively vague; the investigator testified that appellant told T.C. that “something

happened.” The district court immediately ordered the remark stricken from the record.

No curative instruction was requested, and no additional reference was made to the




                                             11
statement. Under these circumstances, the district court did not abuse its discretion in

denying appellant’s motion for a mistrial.

                                             4.

       Appellant also asserts that the evidence presented at trial was insufficient to

support his conviction for first-degree criminal sexual conduct. Specifically, he asserts

that the state failed to meet its burden to prove that appellant sexually penetrated J.R. or

that appellant was more than 36 months older than J.R.

       In reviewing a claim of insufficient evidence, we conduct “a painstaking analysis

of the record to determine whether the evidence, when viewed in the light most favorable

to the conviction,” is sufficient to allow the jurors to reach a guilty verdict. State v.

Ortega, 813 N.W.2d 86, 100 (Minn. 2012) (quotation omitted). To convict of first-

degree criminal sexual conduct under the relevant provision, the state must prove that

appellant engaged in sexual penetration with another person who was under the age of 13

and that appellant was more than 36 months older than the other person. Minn. Stat.

§ 609.342, subd. 1(a) (2012).    Sexual penetration is defined as any intrusion, however

slight, of any part of one person’s body into the genital openings of another person’s

body. Minn. Stat. § 609.341, subd. 12.

       Appellant relies primarily on the pediatrician’s testimony to argue that the

evidence is insufficient to establish that he sexually penetrated J.R.         At trial, the

pediatrician testified that J.R. told her that appellant touched her with his palm and stated

that J.R. never informed her that appellant digitally penetrated her. The pediatrician also

testified that it was possible that “what [J.R.] perceived as being something that went into


                                             12
the actual vaginal opening maybe was just onto it instead of into it.” Appellant asserts

that this testimony disproves J.R.’s testimony that appellant digitally penetrated her.

       But a complainant’s testimony in a criminal sexual conduct case generally does

not require corroboration, and corroboration of a child’s allegations is required “only if

the evidence otherwise adduced is insufficient to sustain conviction.” State v. Myers, 359

N.W.2d 604, 608 (Minn. 1984). Here, J.R. testified that appellant digitally penetrated

her, and her testimony was consistent with the statements she made during her interview

with a forensic investigator. J.R. was able to describe when and where the assault took

place; her testimony appeared detailed, thorough, and sufficient to establish the elements

of the charged offense. Although the pediatrician was unable to determine whether

appellant digitally penetrated J.R., the pediatrician did not testify that it was impossible

for penetration to have occurred or that J.R.’s testimony was inconsistent with what J.R.

told her during the examination. Instead, the pediatrician testified that it was possible

that J.R.’s perception of whether penetration actually occurred was inaccurate. The

jury’s verdict indicates that it believed J.R.’s testimony, and we defer to the jury’s

credibility determinations. State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).

       Likewise, there is sufficient evidence to support the jury’s finding that appellant

was more than 36 months older than J.R. Because J.R. testified that she was born on

April 27, 2003, the jury must have found that appellant was born before April 27, 2000.

Appellant admitted, in his own testimony, that he had been convicted of offenses in 1998

and 1999. Based upon his testimony, the jury could reasonably infer that appellant was

alive in both years and, thus, more than 36 months older than J.R. Moreover, the jury


                                             13
observed both J.R. and appellant in the courtroom, and inferences the jury was free to

make from their appearance were not disputed during the trial.

                                           5.

       Finally, appellant argues that the district court should have instructed the jury on

the defense of voluntary intoxication. Because appellant did not request this instruction

at trial, we review whether the district court’s failure to sua sponte give the instruction

constituted plain error. State v. Laine, 715 N.W.2d 425, 432 (Minn. 2006). To establish

plain error, appellant must demonstrate that there is an error, the error is plain, and the

error affects substantial rights. State v. Ramey, 721 N.W.2d 294, 302 (Minn. 2006).

       To receive a voluntary intoxication instruction, a defendant must demonstrate that:

(1) the defendant is charged with a specific-intent crime; (2) there is sufficient evidence

to support a jury finding by a preponderance of the evidence that the defendant was

intoxicated; and (3) the defendant offered intoxication as an explanation for his actions.

State v. Torres, 632 N.W.2d 609, 616 (Minn. 2001). And generally, the intoxication

defense is unavailable to those who deny that sexual contact occurred. See State v.

Austin, 788 N.W.2d 788, 794 n.5 (Minn. App. 2010). But the intoxication defense may

be implied if there is “overwhelming” evidence of intoxication that “constitute[s] the

effective offer of the defense.” Id.

       Because appellant did not offer intoxication as an explanation for his actions, he

must demonstrate that there was overwhelming evidence of intoxication to warrant a

voluntary intoxication instruction. At trial, there was ample evidence demonstrating that

appellant consumed alcohol on the night of the incident. But appellant repeatedly denied


                                            14
being intoxicated—he admitted he felt the effects of liquor, but testified that he was not a

“mad drunk,” nor “out of [his] mind.” Instead, appellant asserted, in several instances,

that he retained control of his actions and that he remembered everything that occurred on

the night of the incident. Evidence that a defendant consumed alcohol is insufficient to

demonstrate that intoxication was the reason for the defendant’s actions. See Torres, 632

N.W.2d at 617 (stating that a defendant’s consumption of intoxicants “does not create a

presumption of intoxication . . . and does not create the presumption that a defendant is

rendered incapable of intending to do a certain act”).      On this record, the district court

did not plainly err by failing to instruct the jury on the defense of voluntary intoxication.2

       Affirmed.




2
  Because of our conclusion on this issue, we do not reach the question of whether
appellant was charged with a specific-intent crime that would allow him to assert this
defense.

                                              15
