                          This opinion will be unpublished and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
                                     A13-1358

                                   State of Minnesota,
                                      Respondent,

                                           vs.

                               Lamar George Houston, Jr.,
                                      Appellant.

                                 Filed October 20, 2014
                                        Affirmed
                                       Ross, Judge


                             Hennepin County District Court
                               File No. 27-CR-12-20391

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

Michael O. Freeman, Hennepin County Attorney, Mark V. Griffin, Assistant County
Attorney, Jean E. Burdorf, Assistant County Attorney, Minneapolis, Minnesota (for
respondent)

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


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

Judge.
                         UNPUBLISHED OPINION

ROSS, Judge

       A woman told police that two men raped her in a North Minneapolis barbershop

bathroom. The state charged Lamont Houston with third-degree criminal sexual conduct

after the woman identified Houston as one of the rapists, and a jury found him guilty.

Houston claims error in the district court’s failure to give the jury a cautionary instruction

about evidence of his prior convictions, in its decision to order his co-defendant to testify

after the co-defendant claimed a constitutional right not to testify, and in its failure to

correct prohibited statements that the prosecutor made during closing arguments. Because

we conclude that the district court’s instruction error did not prejudice Houston, that

Houston lacks standing to assert his co-defendant’s Fifth Amendment rights, and that the

prosecutor’s statements do not constitute misconduct, we affirm.

                                          FACTS

       Hennepin County charged Lamont Houston with one count of third-degree

criminal sexual conduct stemming from a December 2011 incident in a North

Minneapolis barbershop. The jury at Houston’s trial heard the following testimony

describing the events.

       L.O. testified that she was walking in downtown Minneapolis with another woman

one morning when a car pulled up and the driver asked if L.O. wanted some type of job.

L.O. pointed out Houston to the jury, indicating that he was the driver. L.O. got in

Houston’s car. Houston drove to a barbershop in North Minneapolis and told L.O. that he

had to make a “pit stop.”


                                              2
      They both went inside, and Houston spoke with the owner, James Spencer. The

men told L.O. to wait in the bathroom so they could speak privately.

      L.O. described for the jury how both men came into the bathroom successively

and raped her. Houston was first. He came in the bathroom several minutes after L.O. had

entered. He yelled at her, demanding that she take off her pants. She was afraid and

complied. She said that Houston produced a condom, put it on, and penetrated her

vaginally against her will. Houston left L.O. crying on the bathroom floor. Soon Spencer

entered, and he also penetrated her vaginally against her will. He used the same kind of

condom that Houston used. She said that both men threw their condom wrappers into the

bathroom garbage can.

      L.O. testified that she left the barbershop with Houston, shaking badly. He drove

her to a drugstore parking lot and left her there. An employee found L.O. and called

police. The police helped L.O. locate the barbershop, and she identified Spencer as one of

her assailants. She later identified Houston from surveillance photos taken downtown

near where she first encountered him. L.O. denied ever offering to engage in sex or even

discussing sex with Houston.

      The two officers who responded to the call testified, corroborating L.O.’s account.

One officer described L.O. as being very emotional, “rocking back and forth” at first, and

very nervous when they found the barbershop. The officers found two condom wrappers

in the bathroom garbage can and one used condom floating in the toilet. They identified

Spencer from L.O.’s description.




                                            3
      A nurse who examined L.O. testified that her examination revealed vaginal tearing

and bleeding, which are both consistent with L.O.’s description of a sexual assault. And

the state introduced forensic evidence establishing that the condom that police found in

the barbershop bathroom contained both L.O.’s and Spencer’s DNA.

      The state called Spencer to testify. Spencer came to court from prison, having

already been convicted for his role. Outside the jury’s presence, Spencer implicitly

invoked his Fifth Amendment right not to testify, stating that he wanted to wait until the

attorney handling his appeal arrived. But the district court ordered him to testify, and

Spencer obeyed the order. He told the jury that Houston came to his barbershop with a

woman who matched L.O.’s description and that Houston asked if they could use the

bathroom. He described, “It wouldn’t take [a] rocket scientist to know that they were

having sex in there.” Spencer conceded that he had sex with L.O., but he denied hearing

anyone yelling beforehand while Houston and L.O. were in the bathroom. He said that

L.O. was not disheveled when he went in the bathroom and that she left voluntarily in

Houston’s car. He acknowledged that he had testified at his own trial that he thought

Houston had paid L.O. for sex before they arrived.

      Houston testified in his own defense. He said that he had been downtown looking

for a friend when he noticed L.O. and her companion. According to Houston, L.O.

offered to perform oral sex for $20. He accepted her offer and drove to find seclusion. He

testified that they ended up in a parking lot outside Spencer’s barbershop. He asserted

that he removed a condom from its wrapper, put the wrapper in his pocket, and had begun

putting the condom on when Spencer walked up. He said that Spencer also wanted to


                                            4
engage in sex with L.O., so the three went into the barbershop. He testified that, before

they entered, he discarded the condom in a garbage can. Also according to Houston’s

testimony, L.O. said that she wanted to engage in vaginal sex rather than oral sex. They

then went inside the bathroom, where Houston threw away the previously discarded

condom’s wrapper and opened the wrapper of another condom. He told the jury that he

then noticed that L.O. had “a smell . . . that wasn’t right,” and he therefore declined to

have sex with her. He said he left the bathroom and gave the condom to Spencer.

Houston acknowledged on direct examination that he had previously pleaded guilty to

two unrelated felonies.

       After Houston finished giving his account, the prosecutor played the jury a

recording of an interview Houston gave to the investigating officer. In that interview,

Houston initially denied any sexual behavior with L.O. He stated that he had taken a

black woman to the barbershop but denied having had sex with anyone. Houston changed

his story after the interviewing officer told him that Spencer had given a different account

and that footage from a security camera put him at the scene where L.O. said he picked

her up; Houston then said that he had picked up two white women. He claimed that

L.O.’s companion gave him $10 to drive her to a drugstore, and he asserted that he and

the two women had been accompanied by two of Houston’s male friends. Houston had

also claimed that he dropped off L.O.’s friend, leaving Houston, L.O., and Houston’s two

friends in the car. He said that the four of them went to Spencer’s barbershop, where they

all smoked marijuana. Houston said that he left the barbershop alone, leaving behind L.O.




                                             5
and his two friends. He told the interviewing officer that he never had sex with L.O. or

anyone else, and he suggested that someone must be trying to frame him.

       After hearing the interview recording at trial, Houston attempted to explain the

discrepancies between his interview account and his trial testimony. He testified that the

investigator had not asked the questions that would have prompted him to give the details

that he provided at trial. The prosecutor asked about his prior convictions, which Houston

acknowledged were of second-degree sale of a controlled substance and felony domestic

assault.

       During his closing argument, the prosecutor urged the jury to consider Houston’s

two felony convictions when assessing his credibility, but the district court never gave a

limiting instruction requiring the jury to so limit its consideration of the convictions.

       The jury found Houston guilty. He appeals.

                                      DECISION

       Houston rests his appeal on several arguments. Only his first argument is

convincing, but it does not require reversal. He contends that the district court erred by

failing to caution the jury not to improperly consider his prior convictions. He next faults

the district court for forcing Spencer to testify after Spencer had asserted his Fifth

Amendment privilege not to incriminate himself. He also argues that the prosecutor

committed misconduct by making various prejudicial statements in his closing argument.

Houston raises additional issues in a supplemental pro se brief.




                                              6
                                            I

       Houston’s most compelling argument is his first, that the district court erred by

failing to caution the jury to limit its use of his prior-conviction evidence. Because

Houston did not request the limiting instruction, we review the district court’s decision

not to give the instruction for plain error. State v. Irby, 820 N.W.2d 30, 38 (Minn. App.

2012), aff’d on other grounds, 848 N.W.2d 515 (Minn. 2014). He can prevail on that

standard only if he shows that an unobjected-to error occurred, that the error was plain,

and that the error affected his substantial rights. See State v. Griller, 583 N.W.2d 736,

740 (Minn. 1998). If he meets these elements, we will reverse only if the error poses

serious consequences to the “fairness and integrity of” the judicial proceedings. Id. at

742.

       Houston argues that the district court should have instructed the jury that the

evidence of his prior convictions was admissible only for the limited purpose of

impeaching his credibility. Houston is correct. Evidence that a testifying defendant was

convicted of a crime is admissible only to undermine his credibility and, unless the crime

involved dishonesty, only if the probative value of the evidence outweighs its prejudicial

effect. Minn. R. Evid. 609(a). The district court should instruct the jury of this limited

purpose of the prior-conviction evidence even if neither party requests the limiting

instruction. Id. 1989 comm. cmt.; State v. Bissell, 368 N.W.2d 281, 283 (Minn. 1985).

And the court should instruct the jury accordingly as soon as the evidence is introduced.

Bissell, 368 N.W.2d at 283. This is so even if the defendant rather than the state

introduces the conviction evidence. State v. Word, 755 N.W.2d 776, 787 (Minn. App.


                                            7
2008). The requirement for a prompt, sua sponte instruction is well settled, and the

district court’s failure to provide the instruction here therefore constitutes a plain error.

The district court compounded that plain error by failing to issue a limiting instruction

even at the end of the trial in its final instructions. Cf. Bissell, 368 N.W.2d at 283

(holding that the district court can mitigate the potential prejudice arising from its failure

to give the limiting instruction promptly by giving the instruction during its final

instructions).

       Under these circumstances, Houston makes a nearly successful argument for

reversal. We do not reverse on this ground, however, because the evidence of Houston’s

guilt is so overwhelming that any prejudicial effect by the district court’s failure to

properly instruct the jury is marginal by comparison. The jury heard L.O.’s account that

Houston and Spencer raped her. It heard the corroborating testimony of the responding

police and the examining nurse. The jury learned that the DNA evidence also

corroborated L.O.’s account. In contrast to the consistent evidence of Houston’s guilt, the

jury also heard Houston’s multiple irreconcilable accounts of his own behavior, including

the recording of his nonsensical rendition in the police interview. In that interview,

Houston first insisted to the officer that he had brought “a black girl” to the barbershop

and that he “never picked up a white girl.” But police then revealed to Houston that

Spencer had already told them that the woman Houston brought to the barbershop was

white (like L.O.), and not black, and that Spencer told them that Houston had sex with the

woman in the bathroom. Houston’s story then instantly transformed: “Now . . . I’m

seeming to remember. I picked up two white girls, it was two white girls.” Between


                                              8
Houston’s vacillating police interview and his trial testimony, the jury heard at least three

fundamentally inconsistent and contradictory accounts that differed wildly on the most

basic facts, including whether he had others in his car, whether he took anyone to the

barbershop, whether he picked up one woman or two women, whether the woman he

picked up was a stranger, whether he knew that the second woman’s name was “Kathy,”

whether the woman he took to the barbershop was white or black, whether he first saw

Spencer while in the car or in the barbershop, whether Houston ever went into the

bathroom with the woman, whether he and the woman discussed engaging in a sex act,

and whether he left the barbershop before Spencer emerged from the bathroom.

Houston’s varying stories stumbled down different paths to different conclusions; he was

simply an incredible witness in the face of the very compelling evidence of his guilt. On

this record it is impossible for us to suppose that the jury improperly convicted Houston

because of his prior convictions rather than because of the evidence that he had sex with

L.O. against her will.

       This is a close case because of the importance of a contemporaneous limiting

instruction. But the overwhelming evidence of Houston’s guilt and the slight (and proper)

reference to the evidence of Houston’s prior convictions in the trial convinces us that the

district court’s plain error did not affect Houston’s substantial rights.

                                              II

       Houston next argues that the district court erred by requiring co-defendant Spencer

to testify on the state’s behalf after Spencer asserted his Fifth Amendment right not to




                                               9
testify. Houston did not object at trial, so again we apply our plain-error review. See

Griller, 583 N.W.2d at 740.

      The Fifth Amendment protects a person from being compelled in a criminal case

to testify against himself. U.S. Const. amend. V; Minn. Const. art. I, § 7. But although

there are exceptions (for circumstances not present here), “[t]he general rule is that the

fifth amendment privilege against self incrimination is personal to the witness.” State v.

Rice, 411 N.W.2d 260, 262 (Minn. App. 1987). We therefore reject Houston’s argument.

      Houston’s citing of State v. Morales, 788 N.W.2d 737, 751 (Minn. 2010), does not

convince us otherwise. In Morales, a prosecutor questioned Morales’s co-defendant about

answers he gave when he testified at his own trial, and the co-defendant repeatedly

refused to answer in front of Morales’s jury. 788 N.W.2d at 744. The supreme court

deemed the co-defendant’s testimony unfairly prejudicial to Morales, id. at 760, but the

distinction from this case is obvious. The Morales court dealt with the prejudicial effect

of the jury hearing the witness repeatedly invoking the Fifth Amendment and with the

negative factual inferences that resulted. Morales did not rely on the Fifth Amendment

rights of his co-defendant, as Houston attempts to do. Here, Spencer invoked his Fifth

Amendment privilege outside the jury’s presence. And he never refused to answer

questions on the stand. The jury here was never exposed to the kind of repeated

invocations of the Fifth Amendment and the negative inferences that unfairly prejudiced

Morales.

      And we will not infer from Morales—a case that analyzed the substance of a co-

defendant’s Fifth Amendment rights without invoking any jurisdictional questions—that


                                           10
the supreme court was also holding that a defendant can assert the Fifth Amendment

rights of another. See Hagans v. Lavine, 415 U.S. 528, 535 n.5, 94 S. Ct. 1372, 1377

(1974) (“[W]hen questions of jurisdiction have been passed on in prior decisions sub

silentio, this Court has never considered itself bound when a subsequent case finally

brings the jurisdictional issue before us.”); Group Health Plan, Inc. v. Philip Morris Inc.,

621 N.W.2d 2, 9 (Minn. 2001) (noting that the court was “disinclined to reach a

conclusion about the resolution of this issue from [caselaw] where the precise issue was

not raised but arguably is implicit in our holding”). And jurisdiction is an issue that we

may raise sua sponte if necessary. Jarvis & Sons, Inc. v. Int’l Marine Underwriters, 768

N.W.2d 365, 369 (Minn. App. 2009). It is clear to us that Houston lacks standing to raise

Spencer’s Fifth Amendment rights and that he has no constitutional right to be free of any

incrimination from Spencer’s testimony.

                                            III

       Houston next contends that he did not receive a fair trial because the prosecutor

committed misconduct during his closing argument. We apply plain-error review to

unobjected-to alleged prosecutorial misconduct. State v. Ramey, 721 N.W.2d 294, 298–

99 (Minn. 2006). We assess the closing argument as a whole when considering claimed

instances of misconduct, not individual remarks removed from context. State v. Johnson,

616 N.W.2d 720, 728 (Minn. 2000). If we spot misconduct, we consider the record as a

whole when determining whether the error denied the defendant’s right to a fair trial.

State v. Booker, 348 N.W.2d 753, 755 (Minn. 1984).




                                            11
Accountability

         Houston challenges the prosecutor’s statement about holding criminals

accountable. The prosecutor made a single reference to accountability:

               [E]verybody loses if people who are responsible for crimes
               are not held accountable, and what the State is asking you to
               do is to render a verdict that is fair and just, a verdict that is a
               confirmation of the truth, and that is that the defendant
               sexually assaulted [L.O.].

It is not inherently improper for a prosecutor to discuss accountability in his closing

argument, and we will not reverse if the reference does not distract the jury from its true

function of deciding whether the state has proved its case. State v. Montjoy, 366 N.W.2d

103, 109 (Minn. 1985). It is true that the jury’s role is to decide the case based on the

evidence, not to enforce the law or fashion a verdict designed to send moral messages to

society. See State v. Salitros, 499 N.W.2d 815, 819 (Minn. 1993) (ordering new trial

where prosecutor argued that the case “boiled down into one word, accountability”). The

prosecutor’s statement here falls short of the type of improper statements that merit

reversal. The prosecutor made a general, brief reference to accountability. He then

qualified the statement by urging the jury to reach a “fair and just” verdict, maintaining

the focus on the jury’s role as fact finder. The challenged statement in context was not

error.

Exercising Right to Trial

         Houston argues that the prosecutor improperly criticized him for exercising his

right to a trial. Houston is correct that a prosecutor acts improperly by criticizing a

defendant for exercising his constitutional right to a trial. See State v. McNeil, 658


                                               12
N.W.2d 228, 235–36 (Minn. App. 2003) (holding it was improper for prosecutor to argue

that the defendant’s insistence on a trial victimized the victim of criminal sexual conduct

a second time by forcing her to testify). Houston cites the following statement by the

prosecutor as representing this sort of improper criticism: “It’s unfortunate that not every

individual who comes before the criminal justice system does not admit that they

committed a crime, and that is what Mr. Houston did.” This statement, ambiguous and

confusingly worded, does seem to imply that it would have been better if Houston had

simply admitted his guilt. But the statement falls short of the explicit argument in McNeil

that the defendant, by insisting on a trial, was visiting new harm on his victim. The

prosecutor here never expressly referred to or criticized Houston’s insistence on a trial.

Nor did he imply that Houston’s decision had any adverse effects on L.O.               This

statement, which drew no objection, does not amount to plain, reversible error.

Defendant Lied

       Houston also argues that it was misconduct for the prosecutor to tell the jury that

Houston lied. It is unprofessional for a prosecutor to express his personal beliefs about

testimony. Salitros, 499 N.W.2d at 817. But arguing in closing that the defendant lied

during his testimony is not necessarily misconduct. Booker, 348 N.W.2d at 755. Houston

asks us to reverse based on the prosecutor’s description of the inconsistencies between

Houston’s police-interview statements and his trial testimony:

              The defendant characterized it as incorrect statements . . .
              regarding the discrepancies in the statements that he gave to
              [police] . . . and . . . the testimony he gave [at trial]. Ladies
              and gentlemen, they weren’t incorrect statements. They were
              lies. He blatantly lied in his statements.


                                             13
This closing argument does not emphasize the prosecutor’s personal belief that Houston

lied to the jury. It instead argues that Houston lied, and the prosecutor supported the

argument with facts presented to the jury—the apparently irreconcilable contradictions in

Houston’s accounts. The jury had the duty to determine whether Houston testified

accurately, and the state had the right to argue from the facts that the witness testified

using intentionally false statements of fact. We see no error.

Characterization of Presumption of Innocence

       Houston finally contends that the prosecutor mischaracterized the presumption of

innocence. Misstating the presumption of innocence is prosecutorial misconduct. Ramey,

721 N.W.2d at 300. But arguing that the evidence overcomes the presumption of

innocence and proves the defendant’s guilt does not misstate the presumption. State v.

Young, 710 N.W.2d 272, 280–81 (Minn. 2006). Houston highlights the prosecutor’s

statement that “the presumption of innocence is there, but as I stated earlier, it does not

remain forever.” Houston omits the prosecutor’s preceding statement, which we think is

necessary to keep the challenged statement in its true context: “But what is important to

remember about that presumption of innocence is that it does not remain forever. The

presumption of innocence remains with the defendant unless and until the defendant has

been proven guilty beyond a reasonable doubt.” This statement repeats nearly exactly the

language from the sample jury instruction that the supreme court endorsed in Young. See

id. at 281. The prosecutor did not misstate the presumption of innocence.




                                             14
                                             IV

       Houston raises three arguments in his supplemental pro se brief. He first argues

that he received ineffective assistance of counsel based on his attorney’s failure to request

a cautionary instruction after he referred, during cross-examination, to the fact that

Spencer testified at his own trial. Houston’s ineffective-assistance-of-counsel claim can

succeed only if he proves that his attorney’s conduct was objectively unreasonable and

shows a reasonable probability that the outcome of his trial would have been different but

for his attorney’s error. State v. Nicks, 831 N.W.2d 493, 504 (Minn. 2013). Even if his

trial counsel acted unreasonably in failing to request this instruction, the overwhelming

weight of the evidence against Houston convinces us that the error did not affect the

outcome of the trial.

       He also argues that the district court judge, who had presided over Spencer’s trial,

erred by not recusing himself from Houston’s trial. He bases this argument on State v.

Osterkamp, No. A11-1103, 2012 WL 3262953 (Minn. App. Aug. 6, 2012), review denied

(Minn. Oct. 16, 2012), a case in which we held that a district court judge should have

recused himself from presiding over a defendant’s bench trial because the judge had

heard the defendant make incriminating admissions at a plea hearing on issues that were

later contested at trial. Id. at *6. Osterkamp is not binding on us because it is not a

published opinion, and its reasoning is inapposite where, as here, the challenged judge

was not the fact-finder in the challenging defendant’s trial. See State v. Pero, 590 N.W.2d

319, 326–27 (Minn. 1999) (affirming trial judge’s decision not to recuse after refusing to




                                             15
accept guilty plea and noting that the accused retained the right to have a jury serve as

fact-finder).

       Houston last contends that the district court erred by allowing Spencer to testify in

prison attire. He is correct that “an incarcerated defendant or witness must not appear . . .

in the distinctive attire of a prisoner” at trial. Minn. R. Crim. P. 26.03, subd. 2(b). But his

argument is factually unsupported because, as he conceded through counsel at oral

argument, the record does not establish that Spencer appeared in prison attire.

       Affirmed.




                                              16
