                        This opinion will be unpublished and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
                                   A15-1317

                                 State of Minnesota,
                                    Respondent,

                                         vs.

                               Michael Anthony Clark,
                                    Appellant.

                                Filed August 15, 2016
                                      Affirmed
                                   Schellhas, Judge

                           Hennepin County District Court
                              File No. 27-CR-15-2675

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

Michael O. Freeman, Hennepin County Attorney, Lee W. Barry, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Benjamin J. Butler, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

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

John, Judge.*




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                          UNPUBLISHED OPINION

SCHELLHAS, Judge

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

arguing that the district court violated his Fifth Amendment right against self-incrimination

by admitting evidence of his prearrest silence and erroneously excluded evidence of the

victim’s previous sexual conduct with him. Appellant also argues pro se that the court erred

by denying his motion to suppress DNA evidence obtained under a search warrant. We

affirm.

                                          FACTS

          Appellant Michael Anthony Clark attended elementary and middle school with K.J.

and D.W., and Clark and K.J. reconnected years later in December 2013. At that time,

Clark lived with K.P., with whom he had one child; K.J. lived with D.W., with whom he

had a nine-year-old son, L.K.1 On February 15, 2014, Clark, K.P., and their child went to

K.J. and D.W.’s apartment for a get-together that included cooking, playing dice, drinking,

dancing, and playing between the children. K.J. drank heavily and eventually passed out in

the living room; he did not remember anything from the time he passed out until he awoke

the following morning. D.W. consumed about eight or nine shots of brandy. Around

midnight, D.W. accompanied Clark, K.P., and their child out of the apartment building.

D.W. then returned to her apartment, feeling “[r]eally drunk” and “dizzy, unbalanced and




1
  “L.K.” is an abbreviation of the child’s nickname, which we use for clarity because L.K.’s
initials are the same as his father’s.

                                             2
. . . tired.” She entered her bedroom and closed the door, removed her pants, and went to

bed wearing a tank top, bra, and panties.

       After D.W. went to bed, L.K. heard the doorbell ring and responded because he

could not wake D.W. or K.J. L.K. saw Clark, who told L.K. that he was looking for his

charger; L.K. let Clark into the apartment, and Clark went straight into D.W.’s bedroom

and closed the door. After about five minutes, L.K. went into D.W.’s bedroom and saw

Clark pull the covers over D.W., who was asleep. Clark told L.K. to go back into his

bedroom, which L.K. did. At some point, D.W. awoke to find a man standing beside her

bed and rubbing her upper thigh. The man appeared to be wearing some of the same clothes

that Clark wore earlier in the evening. D.W. asked, “‘Mike, is that you?’” The man did not

respond. After “maybe a minute,” D.W. fell asleep again. When D.W. awoke the next

morning, she immediately remembered the man in her bedroom and noticed that her panties

were on the floor near where the man had been standing. D.W. felt “throbbing” and

“soreness” and had “leakage” in her vaginal area. Based on those sensations, she “knew

[she] had been sexually penetrated.”

       D.W. reported the incident to police on February 17, 2014, and an officer

interviewed D.W., K.J., and L.K. and collected D.W.’s tank top, bra, and panties. A nurse

performed a sexual-assault examination of D.W, which included swabs of D.W.’s internal

and external genitalia. Police obtained a search warrant and collected a saliva sample from

Clark. A male DNA profile was found on D.W.’s genital swabs; Clark’s DNA matched the

male DNA profile, while K.J. was excluded as a contributor to the profile.




                                            3
       Respondent State of Minnesota charged Clark with third-degree criminal sexual

conduct (sexual penetration with physically helpless complainant). The case proceeded to

a jury trial, and after jury selection, the district court granted Clark’s petition to proceed

pro se and discharged his public defender. The jury rejected Clark’s consent defense and

found him guilty of third-degree criminal sexual conduct, and the court sentenced Clark to

117 months’ imprisonment.

       This appeal follows.

                                      DECISION

Clark’s prearrest silence

       Detective Mike Lutz testified at trial that he left Clark a voicemail on March 18,

2014, asking Clark to return his call. When Clark did not respond, Detective Lutz again

called Clark on April 30 and reached him. The district court allowed the state to play a

recording of the call for the jury and admitted the recording into evidence. Clark objected

to admission of the recording and Detective Lutz’s testimony on Fifth Amendment and

relevance grounds. The recording relays the following:

              DETECTIVE LUTZ: Hi. Uh, I’m trying to contact Michael
              Clark.
              CLARK: Yes. This is Michael Clark.
              DETECTIVE LUTZ: Mr. Clark, my name is Mike Lutz. I am
              a detective with the Edina Police Department. Um, I would like
              to have gotten to this matter earlier, but uh I just wasn’t able to
              get to it because of other things. That being said, um our
              department took a complaint um, in regard uh, to you and a uh
              [D.W.]. A [D.W.].

              (Dial tone indicating that the call was disconnected.)




                                              4
Detective Lutz testified that he immediately called Clark again and received Clark’s

voicemail. Clark argues that the recording reflects that he “unequivocally invoked his Fifth

Amendment right to silence,” that admission of the recording and Detective Lutz’s

testimony violated his Fifth Amendment right against self-incrimination, and that we

therefore must reverse his conviction and grant him a new trial.

       In State v. Borg, a case of first impression, a police officer sent a letter to the

defendant, then an uncharged, noncustodial suspect, which read:

                     I would like to speak with you regarding an
              investigation that I am conducting. When I spoke with you
              briefly [previously], you indicated that you had hired an
              attorney to represent you.

                     Please have your attorney contact me as soon as
              possible to arrange an interview appointment. Thank you very
              much.

806 N.W.2d 535, 539 (Minn. 2011) (quotation omitted). During the state’s case in chief,

the officer testified that he did not receive a response to the letter. Id. at 540. A jury found

the defendant guilty of third-degree criminal sexual conduct, and the defendant appealed

his conviction, arguing that admission of evidence of his prearrest silence violated his Fifth

Amendment right against self-incrimination. Id. at 537, 541. The supreme court disagreed,

stating:

              The letter is not questioning, and the letter compels nothing.
              The letter is what [the officer] testified it was: a written attempt
              to interview [the defendant]. [The defendant]’s voluntary
              decision not to respond to the letter, assuming he received it,
              raises no issue under the Fifth Amendment. We conclude that
              the privilege against compelled self-incrimination did not
              prevent the State from presenting evidence during the State’s
              case in chief of [the defendant]’s failure to respond to the letter.


                                               5
Id. at 543. The court held that “if a defendant’s silence is not in response to a choice

compelled by the government to speak or remain silent, then testimony about the

defendant’s silence presents a routine evidentiary question that turns on the probative

significance of that evidence.” Id. (quotation omitted).

       Clark acknowledges the holding in Borg but argues that Salinas v. Texas, 133 S. Ct.

2174 (2013), abrogated Borg. According to Clark, “the relevant inquiry has changed from

the ‘compulsion’ inquiry of Borg to the ‘invocation’ inquiry of the Salinas plurality.” We

disagree. In Salinas, the United States Supreme Court granted certiorari “to resolve a

division of authority in the lower courts over whether the prosecution may use a

defendant’s assertion of the privilege against self-incrimination during a noncustodial

police interview as part of its case in chief.” 133 S. Ct. at 2179 (plurality opinion). But the

Court did not resolve that issue. Id. A three-justice plurality concluded that the defendant

failed to invoke his Fifth Amendment right against self-incrimination during his interview

and stated that the Court “ha[s] long held that a witness who desires the protection of the

privilege must claim it at the time he relies on it.” Id. (quotations omitted). Two concurring

justices did not join the plurality’s opinion, instead concluding that “[the defendant’s] claim

would fail even if he had invoked the privilege because the prosecutor’s comments

regarding his precustodial silence did not compel him to give self-incriminating

testimony.” Id. at 2184 (Thomas, J., concurring). And four justices dissented, pointing to

cases in which the Court has held that “an individual, when silent, need not expressly




                                              6
invoke the Fifth Amendment if there are inherently compelling pressures not to do so.” Id.

at 2185, 2188 (Breyer, J., dissenting) (quotation omitted).

       “When a fragmented Court decides a case and no single rationale explaining the

result enjoys the assent of five Justices, the holding of the Court may be viewed as that

position taken by those Members who concurred in the judgments on the narrowest

grounds.” Marks v. United States, 430 U.S. 188, 193, 97 S. Ct. 990, 993 (1977) (quotation

omitted). Because Salinas lacks a single rationale supported by a majority of the Justices,

Borg remains binding authority for us. See State v. Allinder, 746 N.W.2d 923, 925 (Minn.

App. 2008) (stating that “this court is bound to follow supreme court precedent”). Based

on Borg, we conclude that the district court’s admission of evidence of Clark’s prearrest

silence during the state’s case in chief did not violate his Fifth Amendment right against

self-incrimination.2

       Under the supreme court’s holding in Borg, the admissibility of Detective Lutz’s

testimony and the recording of the call presents “a routine evidentiary question that turns

on the probative significance of that evidence.” Borg, 806 N.W.2d at 543 (quotation

omitted). “Evidentiary rulings rest within the sound discretion of the trial court and will

not be reversed absent a clear abuse of discretion.” State v. Carridine, 812 N.W.2d 130,



2
  Because Clark does not invoke the Minnesota Constitution, we do not consider whether
admission of the evidence of Clark’s prearrest silence violated his right against self-
incrimination under the Minnesota Constitution. See Minn. Const. art. 1, § 7 (“No person
shall . . . be compelled in any criminal case to be a witness against himself . . . .”); State v.
Johnson, 811 N.W.2d 136, 146 n.2 (Minn. App. 2012) (addressing only Fifth Amendment
when appellant mentioned article I, section 7, of Minnesota Constitution in his brief but
based arguments only on Fifth Amendment), review denied (Minn. Mar. 28, 2012).

                                               7
141 (Minn. 2012) (quotation omitted). “[T]he appellant has the burden of establishing that

the trial court abused its discretion and that appellant was thereby prejudiced.” State v.

Holliday, 745 N.W.2d 556, 568 (Minn. 2008) (quotation omitted). Here, Borg presents no

argument based on evidentiary rather than constitutional grounds that the district court

abused its discretion by admitting evidence of Clark’s prearrest silence. We therefore

conclude that Borg has failed to establish a clear abuse of discretion in the admission of

that evidence.

D.W.’s previous sexual conduct

       Clark argues that the district court erroneously excluded evidence of previous sexual

conduct between Clark and D.W. “Due process requires that every defendant be afforded

a meaningful opportunity to present a complete defense.” State v. Richardson, 670 N.W.2d

267, 277 (Minn. 2003) (quotations omitted). But “[t]he right to present a defense is not

without limitations.” Id. “[B]oth the accused and the state must comply with procedural

and evidentiary rules designed to ensure both fairness and reliability in the ascertainment

of guilt and innocence.” Id. (quotation omitted). “Evidentiary rulings are reviewed for an

abuse of discretion, even when a constitutional violation is alleged.” State v. Wenthe, 865

N.W.2d 293, 306 (Minn. 2015).

       Minnesota’s rape-shield law provides that, in a prosecution for criminal sexual

conduct, “evidence of the victim’s previous sexual conduct shall not be admitted nor shall

any reference to such conduct be made in the presence of the jury.” Minn. Stat. § 609.347,

subd. 3 (2012); Minn. R. Evid. 412(1). Such evidence may be admissible when the consent

of the victim is a defense in the case. Minn. Stat. § 609.347, subd. 3; Minn. R. Evid. 412(1).


                                              8
But the evidence can be admitted only if its probative value is not substantially outweighed

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

412(1).

          Under the rape-shield law, a defendant may not offer evidence of the victim’s

previous sexual conduct except according to a specified procedure. Minn. Stat. § 609.347,

subd. 4 (2012); Minn. R. Evid. 412(2). The defendant must bring a motion setting forth an

offer of proof of the evidence that he intends to offer “at least three business days prior to

trial, unless later for good cause shown.” Minn. Stat. § 609.347, subd. 4(a). If the district

court deems the defendant’s offer of proof to be sufficient, the court must order a hearing

outside the presence of the jury to allow the defendant to make a full presentation of the

offer of proof. Minn. Stat. § 609.347, subd. 4(b); Minn. R. Evid. 412(2)(B). After the

hearing, if the court determines that the offered evidence is admissible under one of the

exceptions in the rape-shield law and that the probative value of the evidence is not

substantially outweighed by its inflammatory or prejudicial nature, the court must issue an

order stating the extent to which the evidence is admissible. Minn. Stat. § 609.347, subd.

4(c); Minn. R. Evid. 412(2)(C).

       In this case, on the second day of trial and following D.W.’s testimony, Clark gave

notice of his intent to testify that he and D.W. engaged in sexual conduct together when

they were in middle school and again in 2000. The district court treated this notice as a

motion to admit otherwise-inadmissible evidence under an exception in the rape-shield

law. Regarding the evidence of sexual conduct between Clark and D.W. when they were

in middle school, the court said, “I wouldn’t let that in. It’s too remote to this instance to


                                              9
be relevant on the issue of present consent.” And as to the evidence of sexual conduct

between Clark and D.W. in 2000, the court said, “I’m also going to deny that motion for

both reasons—lack of notice pretrial and because I think it’s too remote to be relevant on

the issue of consent under Rule 412.” (Emphasis added.) Clark nevertheless argues that

“[t]he court affirmatively did not exclude the evidence [of previous sexual conduct between

Clark and D.W.] because of any timing problems with when it was offered.”3 Clark is

wrong. The court prohibited Clark from introducing the evidence both because he failed to

provide the required pretrial notice and because the instances of previous sexual conduct

were “too remote” to be relevant to this case. The court neither disclaimed reliance on the




3
 Clark bases his argument on the following statements in the court’s written order after its
ruling on the record:

                      [Clark] . . . presented his motion three days into trial.
              Although precedent would support denying [Clark]’s request
              on procedural grounds, this Court is reluctant to deny a
              defendant’s motion based solely on his ignorance of
              procedure. In the interest of protecting [Clark]’s constitutional
              rights, the Court assessed the motion in a light most favorable
              to [Clark], and opines that denial of the motion is appropriate,
              irrespective of timeliness. [Clark] moved to present evidence
              of a sexual relationship between himself and [D.W.] eighteen
              years ago and again fourteen years ago. Although evidence of
              a sexual relationship between [Clark] and [D.W.] may be
              probative, the Court finds the alleged encounters too remote in
              time. There is limited probative value in offering evidence of a
              prior sexual history between [Clark] and [D.W.] to
              demonstrate consent, more than a decade later.

(Second emphasis added.)




                                             10
untimely notice as a basis for denying Clark’s “motion” nor found good cause for the

untimeliness of the notice. The court merely noted its reluctance to deny Clark’s motion

solely on the basis of the untimely notice.

       As to the substantive admissibility of the evidence of previous sexual conduct

between Clark and D.W., the district court stated in its order that “in a physically helpless

case consent is not an issue” and therefore “the existence of a prior relationship is not

relevant.” Under Minnesota law, “[a] person who engages in sexual penetration with

another person is guilty of criminal sexual conduct in the third degree if . . . the actor knows

or has reason to know that the complainant is . . . physically helpless.” Minn. Stat.

§ 609.344, subd. 1 (2012). “‘Physically helpless’ means that a person is (a) asleep or not

conscious, (b) unable to withhold consent or to withdraw consent because of a physical

condition, or (c) unable to communicate nonconsent and the condition is known or

reasonably should have been known to the actor.” Minn. Stat. § 609.341, subd. 9 (2012).

Because the definition of “physically helpless” includes a complainant’s inability to

withhold or withdraw consent or communicate nonconsent, the district court erred in

concluding that D.W.’s alleged consent was irrelevant to the charges in this case. See State

v. Berrios, 788 N.W.2d 135, 141–43 (Minn. App. 2010) (acknowledging by implication

relevance of victim’s alleged consent in challenge to sufficiency of evidence to support

conviction of third-degree criminal sexual conduct (physically helpless complainant)),

review denied (Minn. Nov. 16, 2010).

       But even if evidence of previous sexual conduct between Clark and D.W. was

relevant, the evidence was admissible “only if the probative value of the evidence [wa]s


                                              11
not substantially outweighed by its inflammatory or prejudicial nature.” Minn. Stat.

§ 609.347, subd. 3; Minn. R. Evid. 412(1). In its order, the district court stated:

              To assume that [D.W.]’s consent to sexual encounters eighteen
              and fourteen years ago would show her propensity to engage
              in a sexual relationship with [Clark] in February 2014, would
              be placing a great burden on a jury to assess the varying
              degrees of human nature. Such evidence would be highly
              prejudicial to [D.W.]’s right to deny a sexual partner at the age
              of thirty-two. The Court does not believe these instances would
              provide the jury with any information conducive to their fact-
              finding inquiry. The prior relationship, if true, occurred half a
              lifetime ago for [Clark] and [D.W.]. Youthful indiscretions
              long before motherhood, adulthood, and a long term
              monogamous relationship are of limited probative value
              fourteen and eighteen years later.

The court clearly determined that the probative value of the evidence of previous sexual

conduct between Clark and D.W. was substantially outweighed by the evidence’s

inflammatory or prejudicial impact. We review the district court’s evidentiary ruling for an

abuse of discretion. Wenthe, 865 N.W.2d at 306. Due to the length of time between Clark

and D.W.’s purported previous sexual conduct and the date of the offense in this case, we

conclude that the district court did not abuse its discretion by ruling that the evidence of

previous sexual conduct between Clark and D.W. was inadmissible.

Search warrant

       In an application for a search warrant for a sample of Clark’s saliva, Detective Lutz

related facts gained through another officer’s interviews of D.W., K.J., and L.K. Two days

before trial, Clark moved to suppress any DNA evidence obtained as a result of the search

warrant, arguing that the application contained “reckless misrepresentations of fact

material to the findings of probable cause.” The district court denied the motion. In a pro


                                             12
se supplemental brief, Clark argues that the court erred by denying his suppression motion.

Specifically, Clark complains that some of L.K.’s statements during his interview with

police were contradictory, revealed improper involvement of D.W. in the interview, and

indicated that L.K. did not observe the interactions between Clark and D.W. in D.W.’s

bedroom. Clark contends that Detective Lutz made materially false statements in reckless

disregard for the truth by relying on L.K.’s statements in the application. Clark further

contends that, without L.K.’s statements, the application was insufficient to support

probable cause for the search warrant.

       Clark cites no legal authority in his pro se supplemental brief, and we therefore may

decline to consider his claim of error regarding the denial of his suppression motion. See

State v. Taylor, 869 N.W.2d 1, 22 (Minn. 2015) (“We deem arguments waived on appeal

if a pro se supplemental brief contains no argument or citation to legal authority in support

of the allegations.” (quotation omitted)). But if prejudicial error is obvious on mere

inspection of the record, we may consider an unsupported allegation of error. Id. Here,

prejudicial error is not obvious on mere inspection of L.K.’s interview statements and

Detective Lutz’s search-warrant application. We conclude that the district court did not

clearly err by finding that the search-warrant application did not include statements that

were knowingly and intentionally false or made with reckless disregard for the truth. See

State v. Andersen, 784 N.W.2d 320, 326–27 (Minn. 2010) (reviewing validity of search

warrant and stating that “the clearly erroneous standard controls our review of a district




                                             13
court’s findings on the issue of whether the affiant deliberately made statements that were

false or in reckless disregard of the truth”).

       Affirmed.




                                                 14
