                          This opinion will be unpublished and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
                                     A15-0023

                                   State of Minnesota,
                                      Respondent,

                                           vs.

                                 Duane Thomas Mizner,
                                      Appellant.

                                Filed October 19, 2015
                   Affirmed in part, reversed in part, and remanded
                                     Larkin, Judge

                              Aitkin County District Court
                                File No. 01-CR-13-207


Lori Swanson, Attorney General, Michael Everson, Assistant Attorney General, St. Paul,
Minnesota; and

Jim Ratz, Aitkin County Attorney, Aitkin, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Steven P. Russett, Assistant
Public Defender, St. Paul, Minnesota (for appellant)


         Considered and decided by Chutich, Presiding Judge; Ross, Judge; and Larkin,

Judge.
                         UNPUBLISHED OPINION

LARKIN, Judge

       Appellant challenges his conviction of fourth-degree criminal sexual conduct,

arguing that (1) the prosecutor plainly erred by eliciting testimony that appellant wanted

an attorney when asked by police to give a statement, (2) the district court plainly erred

by failing to instruct the jury on the intent element, and (3) the district court erred and

inadvertently departed by imposing a consecutive sentence. Because the prosecutor did

not err by eliciting the contested testimony and the district court’s erroneous jury

instruction did not affect appellant’s substantial rights, we affirm in part. But because the

district court erred by imposing a consecutive sentence, we reverse in part and remand for

imposition of a concurrent sentence.

                                          FACTS

       The Aitkin Police Department received a report that appellant Duane Thomas

Mizner, a massage therapist at a spa and wellness center in Aitkin, touched D.S.’s vaginal

area during a massage. D.S. told the police that Mizner touched “way too far up her

thigh,” rubbed her groin area and underwear, and put his fingers inside her vagina.

Aitkin Police Chief Timothy Catlin went to the spa and wellness center to interview

Mizner. Mizner admitted that he had given D.S. a massage earlier that day, but denied

that anything inappropriate happened during the massage. A few days later, Chief Catlin

again contacted Mizner to take a second statement. Mizner declined to speak to him and

stated that he wanted to talk to an attorney. Respondent State of Minnesota charged



                                             2
Mizner with third- and fourth-degree criminal sexual conduct. The case was tried to a

jury.

        At trial, Mizner testified that, during the massage, his hands never touched D.S.’s

crotch or vagina. Mizner’s attorney argued to the jury that D.S.’s statements regarding

the incident were inconsistent. The attorney contrasted D.S.’s inconsistent statements

with Mizner’s consistent denials and openness with Chief Catlin.

        During his opening statement, Mizner’s attorney pointed out that Mizner “sat

down with Chief Catlin, [and] gave a full and frank interview. He didn’t call an attorney.

He didn’t flee.”    During Mizner’s cross-examination of Chief Catlin, the following

exchange occurred:

              Q: . . . You told [Mizner] that there could be potential
              criminal charges against him, correct?
              A: Correct.
              Q: Okay. Mr. Mizner agreed to talk to you, correct?
              A: Correct.
              Q: Okay. You informed Mr. Mizner that he had the right to
              remain silent?
              A: Yes.
              Q: He could consult with an attorney.
              A: Yes.
              Q: Mr. Mizner agreed to talk to you, didn’t he?
              A: Yes, he did.
              Q: He answered all your questions.
              A: Yes, he did.
              Q: He didn’t contact an attorney, did he?
              A: No, he did not.

        On redirect, the prosecutor asked Chief Catlin if he contacted Mizner again a few

days later for a follow-up interview. Chief Catlin stated “yes” and testified that “[a]t that

time [Mizner] wanted to talk to an attorney.” Mizner did not object.


                                             3
       Mizner testified on direct examination that Chief Catlin came to the spa and

wellness center, asked for a statement, and read him his Miranda rights. Mizner testified

that he provided a statement and did not call an attorney. On cross-examination, the

following exchange occurred between the prosecutor and Mizner:

              Q: But [Chief Catlin] attempted to talk to you a few days
              later and you refused.
              A: That—well, I didn’t refuse, I told him—
              Q: Wait, yes or no?
              A: —that my lawyer—
              Q: You refused to give the statement at that time.
              A: No.
              Q: You did not refuse.
              A: I did not.
              Q: So you gave, you’d never gave a second statement.
              A: That’s correct.

Mizner did not object to the prosecutor’s questions.

       D.S. testified that during the massage, Mizner skimmed her underwear, slipped his

hand underneath her underwear, and “started to” put one finger inside her vagina, at

which point she pushed his hand away and said “no, thank you.” D.S. testified that

Mizner left the room, and she put on her clothes and left. The owner of the spa and

wellness center testified that D.S. was angry and slammed the door as she left the

building. D.S.’s fiancée testified that D.S. was “hysterically crying” when she returned to

their cabin after the massage.

       The jury found Mizner not guilty of third-degree criminal sexual conduct but

guilty of fourth-degree criminal sexual conduct. The district court imposed a 24-month

stayed prison sentence, which was to run consecutively to Mizner’s previously imposed

prison term for a second-degree-assault conviction. This appeal follows.

                                            4
                                     DECISION

                                             I.

       Mizner argues that “the prosecutor committed reversible plain error by eliciting

testimony that [he] wanted to talk to an attorney when asked by police to give a second

statement.”   “Prosecutors have an affirmative obligation to ensure that a defendant

receives a fair trial, no matter how strong the evidence of guilt.” State v. Ramey, 721

N.W.2d 294, 300 (Minn. 2006). And it is improper for prosecutors to elicit inadmissible

evidence. Id. “[I]t has long been recognized that a defendant’s decision to exercise his

constitutional rights to silence and to counsel may not be used against him at trial.” State

v. Litzau, 650 N.W.2d 177, 185 (Minn. 2002). “This is so because a jury would be likely

to infer from the testimony that the defendant was concealing his guilt.” Id. (quotation

omitted).

       A defendant who fails to object to alleged prosecutorial misconduct ordinarily

forfeits the right to appellate review of the purported misconduct. State v. Ture, 353

N.W.2d 502, 516 (Minn. 1984).        This court has discretion to review unobjected-to

prosecutorial misconduct if plain error is shown. Minn. R. Crim. P. 31.02; Ramey, 721

N.W.2d at 297-99. A plain-error claim based on prosecutorial misconduct has three

requirements: the prosecutor’s unobjected-to act must constitute error, the error must be

plain, and the error must affect the defendant’s substantial rights. Ramey, 721 N.W.2d at

302. The burden rests with the defendant to demonstrate error that is plain. Id. “An

error is plain if it was clear or obvious,” which is usually shown “if the error contravenes

case law, a rule, or a standard of conduct.” Id. (quotation omitted). If the defendant

                                             5
satisfies his burden, the burden shifts to the state to demonstrate that the error did not

affect the defendant’s substantial rights. Id. “The third prong, requiring that the error

affect substantial rights, is satisfied if the error was prejudicial and affected the outcome

of the case.” State v. Griller, 583 N.W.2d 736, 741 (Minn. 1998). “If these three prongs

are satisfied, [this] court then assesses whether the error should be addressed to ensure

fairness and the integrity of the judicial proceedings.” Ramey, 721 N.W.2d at 302.

       In this case, the prosecutor elicited testimony from Chief Catlin that Mizner

declined a second interview and stated that he wanted to contact an attorney. The

prosecutor also asked Mizner if he refused to talk to Chief Catlin and elicited testimony

from Mizner that the second interview never happened. The state argues that Mizner

opened the door to evidence regarding Mizner’s decision to exercise his constitutional

rights to silence and to counsel. We agree.

              Opening the door occurs when one party by introducing
              certain material creates in the opponent a right to respond
              with material that would otherwise have been inadmissible.
              The doctrine is essentially one of fairness and common sense,
              based on the proposition that one party should not have an
              unfair advantage and that the factfinder should not be
              presented with a misleading or distorted representation of
              reality.

State v. Bailey, 732 N.W.2d 612, 622 (Minn. 2007) (citations and quotations omitted).

       Here, the prosecutor elicited evidence that Mizner declined a second interview and

wanted to speak to an attorney after (1) Mizner’s attorney stated in his opening remarks

that Mizner participated in a full and frank interview with Chief Catlin and did not ask for

an attorney, (2) Mizner’s attorney elicited testimony from Chief Catlin on cross-


                                              6
examination that Mizner answered all of Chief Catlin’s questions and did not ask for an

attorney, and (3) Mizner testified that he provided a statement to Chief Catlin and did not

ask for an attorney. Mizner’s approach created a misleading representation that he fully

cooperated with the police and never exercised his right to remain silent or his right to an

attorney. Under the circumstances, the state had a right to respond with evidence that

otherwise would have been inadmissible. See State v. McCullum, 289 N.W.2d 89, 92-93

(Minn. 1979) (stating that the defendant opened the door to testimony “that defendant

refused to give a written statement until he had talked to an attorney” because defense

counsel “had elicited from other police officers that defendant had been courteous and

cooperative with the police” and “[s]imilar testimony was also elicited from another

witness”). Had the state not done so, Mizner’s misleading representation would have

given him an unfair advantage at trial. In sum, Mizner opened the door to the evidence,

and the prosecutor did not err by presenting it.

                                              II.

       Mizner argues that the district court “committed prejudicial plain error by failing

to instruct the jury [that] the state had to prove [he] intentionally touched the

complainant’s intimate parts ‘with sexual or aggressive intent.’” Mizner did not object to

the contested jury instruction.

       An unobjected-to, erroneous jury instruction is subject to plain-error analysis.

State v. Baird, 654 N.W.2d 105, 113 (Minn. 2002). To obtain relief, Mizner must

establish (1) an error, (2) that is plain, and (3) that affects his substantial rights. Griller,



                                               7
583 N.W.2d at 740. An error is plain if it “contravenes case law, a rule, or a standard of

conduct.” Ramey, 721 N.W.2d at 302.

      Mizner was charged with fourth-degree criminal sexual conduct under Minn. Stat.

§ 609.345, subd. 1(o) (2012), which provides:

             A person who engages in sexual contact with another person
             is guilty of criminal sexual conduct in the fourth degree if . . .
             the actor performs massage or other bodywork for hire, the
             complainant was a user of one of those services, and
             nonconsensual sexual contact occurred during or immediately
             before or after the actor performed or was hired to perform
             one of those services for the complainant.

“Sexual contact” for the purposes of section 609.345, subdivision 1(o),

             includes any of the following acts committed without the
             complainant’s consent, except in those cases where consent is
             not a defense, and committed with sexual or aggressive intent:
             (i) the intentional touching by the actor of the complainant’s
             intimate parts, or . . . (iv) in any of the cases above, the
             touching of the clothing covering the immediate area of the
             intimate parts . . . .

Minn. Stat. § 609.341, subd. 11 (i), (iv) (2012) (emphasis added).

      The district court instructed the jury consistent with 10 Minnesota Practice,

CRIMJIG 12.123 (2012), which fails to explain that the actor’s touching must be

committed with sexual or aggressive intent. The “CRIMJIGs are not precedential or

binding” and “[w]hen the plain language of the statute conflicts with the CRIMJIG, the

district court is expected to depart from the CRIMJIG and properly instruct the jury

regarding the elements of the crime.” State v. Gunderson, 812 N.W.2d 156, 162 (Minn.

App. 2012) (quotation omitted). Here, the parties agree, and we hold, that the jury

instruction was plainly erroneous.

                                             8
       But Mizner has not demonstrated that the error affects his substantial rights. “An

error affects a defendant’s substantial rights if the error was prejudicial and affected the

outcome of the case. An error in instructing the jury is prejudicial if there is a reasonable

likelihood that giving the instruction in question had a significant effect on the jury’s

verdict.” State v. Watkins, 840 N.W.2d 21, 28 (Minn. 2013) (citation and quotation

omitted).

                        [T]he omission of an element of a crime in a jury
                instruction does not automatically require a new trial.
                Instead, the reviewing court must conduct a thorough
                examination of the record to determine whether the omission
                of an element of a charged offense from the jury instruction
                was sufficiently prejudicial in light of the standard of review.
                The reviewing court may consider, among other factors,
                whether: (1) the defendant contested the omitted element and
                submitted evidence to support a contrary finding, (2) the State
                submitted overwhelming evidence to prove that element, and
                (3) the jury’s verdict nonetheless encompassed a finding on
                that element.

Id. at 28-29.

       Mizner did not testify or argue that he massaged D.S.’s vagina or touched her

underwear without sexual or aggressive intent.1 Instead, he testified and argued that he

did not touch D.S.’s vagina or crotch. Moreover, D.S.’s testimony that Mizner touched

her vagina and her underwear over her vagina was strong evidence of sexual intent. See

State v. Ness, 707 N.W.2d 676, 687 (Minn. 2006) (stating that “sexual or aggressive

intent can readily be inferred from the contacts themselves”). There could be no other

reason for Mizner to touch D.S.’s vagina. Mizner himself testified that there is a “rule”

1
 Mizner at one point testified that he did not touch D.S. in “any sexual manner.” An
objection to that testimony was sustained.
                                               9
to stay “four inches . . . away from the groin area” when performing a massage. See id.

(noting that “there could be no other reason for [the defendant] to touch [the victim’s]

intimate parts”). On this record, Mizner has not demonstrated that there is a reasonable

likelihood that failing to give the sexual-intent instruction had a significant effect on the

jury’s verdict.

                                            III.

       Mizner argues that the district court erred and inadvertently departed by imposing

a consecutive sentence. “[W]hether . . . consecutive sentences imposed were permissive

under the sentencing guidelines or whether they constitute an upward departure . . . is a

question of law subject to de novo review.” State v. Rannow, 703 N.W.2d 575, 577

(Minn. App. 2005).

       The parties agree, as do we, that consecutive sentencing was not permissive

because the presumptive disposition for Mizner’s fourth-degree criminal-sexual-conduct

conviction is a stayed prison term. See Minn. Sent. Guidelines 2.F.2.a.(1) (2012) (stating

that “[c]onsecutive sentences are permissive if the presumptive disposition for the current

offense(s) is commitment”). The parties also agree, and we conclude, that because the

district court did not state grounds for a sentencing departure, Mizner’s fourth-degree

criminal-sexual-conduct sentence should have been concurrent to his previously imposed

second-degree-assault sentence. See State v. Geller, 665 N.W.2d 514, 516 (Minn. 2003)

(“If no reasons for departure are stated on the record at the time of sentencing, no




                                             10
departure will be allowed.”) (emphasis omitted). We therefore reverse Mizner’s sentence

and remand for imposition of the presumptive concurrent sentence.

      Affirmed in part, reversed in part, and remanded.




                                          11
