                          This opinion will be unpublished and
                          may not be cited except as provided by
                          Minn. Stat. § 480A.08, subd. 3 (2014).

                               STATE OF MINNESOTA
                               IN COURT OF APPEALS
                                     A14-0595

                                   State of Minnesota,
                                      Respondent,

                                            vs.

                                 Spidel Wayne Browder,
                                        Appellant.

                                  Filed March 2, 2015
                                        Affirmed
                                   Schellhas, Judge

                             Hennepin County District Court
                               File No. 27-CR-13-24713

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

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

Cathryn Middlebrook, Chief Appellate Public Defender, Julie Loftus Nelson, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

       Considered and decided by Schellhas, Presiding Judge; Stauber, Judge; and

Hooten, Judge.

                        UNPUBLISHED OPINION

SCHELLHAS, Judge

       Appellant challenges the district court’s refusal to instruct the jury on voluntary

intoxication and raises additional claims in his pro se supplemental brief. We affirm.
                                        FACTS

      Around 8:00 p.m. on July 30, 2013, the Minneapolis Police Department

dispatched officers to Loring Greenway in Minneapolis regarding a possible sexual

assault underway. A witness directed the officers to a location where, according to the

witness, “a female [was] getting raped.” As two officers approached that location, one of

the officers observed a male, later identified as Joseph Carlson, flee the scene. That

officer unsuccessfully pursued Carlson and returned to the scene. The other officer

approached appellant Spidel Browder. Browder was sitting with a female, J.H.B., whose

dress was hiked up high on her thighs. The officer observed that J.H.B. was not wearing

underpants. Browder told the officer that J.H.B. was okay, that she was just drunk, and

that he was taking care of her. The officer observed that J.H.B. was limp like a ragdoll

and nonresponsive. Her breathing was very shallow, and the officer was unable to find

her pulse. But J.H.B. provided a sign of life when the officer pulled back her eyelids—

her eyes fluttered. The officer instructed Browder to lay J.H.B. on the ground and called

for an ambulance. J.H.B. did not regain consciousness until about 8:30 a.m. the next day

and has no memory of the events at Loring Greenway.

      While J.H.B. was unconscious, a sexual-assault nurse examined her and took skin,

urine, perineal, blood, and other samples. The nurse also examined Browder and took

fingernail, penile, scrotal, and blood samples. Based on the samples, a forensic scientist

determined that J.H.B.’s alcohol concentration was .27 at 1:30 a.m. on July 31, 2013. Her

perineal sample contained a mixture of DNA from two or more males, and Browder and




                                            2
Carlson cannot be excluded as possible contributors to the mixture. Browder’s penile and

hand samples contained a predominant female DNA profile that matches J.H.B.

      Respondent State of Minnesota charged Browder with aiding and abetting third-

degree criminal sexual conduct under Minn. Stat. §§ 609.05, subd. 1, .344, subd. 1(d)

(mentally or physically helpless complainant) (2012). Browder noticed defenses of

consent and voluntary intoxication. At Browder’s Rasmussen hearing, the district court

heard argument on a voluntary-intoxication jury instruction and deferred its ruling. The

state noticed its intent to amend the complaint to add a count of third-degree criminal

sexual conduct under section 609.344, subdivision 1(d), and subsequently filed an

amended complaint.

      J.H.B. testified that she weighed 125 pounds, and that on July 30, 2013, she

walked around downtown Minneapolis with friends, consumed about seven shots, and

met Carlson and Browder. J.H.B. was not acquainted with Carlson or Browder before

that day. Eventually, J.H.B.’s group of friends disbanded, leaving her alone with Carlson

and Browder. J.H.B. has no memory of consenting to sexual contact with Carlson or

Browder and no memory of the sexual contact.

      Browder testified that on July 30, 2013, he began drinking alcohol at about 2:30

p.m. in Saint Paul and then went to Minneapolis, where he continued drinking and met

Carlson and eventually a group of people that included J.H.B. He testified that after

Carlson, J.H.B., and he arrived at Loring Greenway, J.H.B. approached Carlson and they

began kissing. Browder also testified that J.H.B. stuck her hand in Browder’s pants and

underwear and that he responded by reaching up her dress and touching the outside of her


                                           3
vagina. Browder maintained that the sexual contact was consensual. He testified that after

a couple minutes, he moved away from Carlson and J.H.B. but was intoxicated and did

not feel comfortable walking, so he sat down nearby. According to Browder, J.H.B. had

sat next to him and was leaning against him when police arrived.

      Three eyewitnesses testified about what they saw while walking through the

Loring Greenway area on July 30, 2013. Collectively, they testified that they saw

Browder sitting or leaning against a wall or fence and holding an unconscious or semi-

unconscious woman, who was bent over at the waist with her head facing him. They saw

a second man behind the woman, holding her up by the hips. The woman was limp and

moaning in a manner that suggested distress or intoxication, and her clothes were pulled

down or up over her waist. The second man’s pants were partially down, and he was

gyrating against the woman. The second man gestured to passersby to leave and

attempted to reassure them that everything was fine. Browder was laughing and cursing.

When one of the witnesses called 911, Browder and the second man called him a “snitch”

and a “mark.”

      After the close of evidence, the district court denied Browder’s request for a

voluntary-intoxication jury instruction. The jury found Browder guilty of aiding and

abetting third-degree criminal sexual conduct and acquitted him of third-degree criminal

sexual conduct. The district court sentenced Browder to 74 months’ imprisonment.

      This appeal follows.




                                            4
                                      DECISION

Voluntary-intoxication jury instruction

       The district court denied Browder’s request for a voluntary intoxication jury

instruction on the grounds that (1) third-degree criminal sexual conduct under section

609.344, subdivision 1(d), is not a specific-intent crime; (2) aiding and abetting is not a

specific-intent crime; and (3) Browder did not offer intoxication as an explanation for his

actions. Browder argues that the district court committed reversible error by refusing to

instruct the jury on voluntary intoxication.

       “[Appellate courts] review a trial court’s refusal to issue a requested instruction for

abuse of discretion, focusing on whether the refusal resulted in error.” State v. Torres,

632 N.W.2d 609, 616 (Minn. 2001). “[W]hen a particular intent or other state of mind is

a necessary element to constitute a particular crime, the fact of intoxication may be taken

into consideration in determining such intent or state of mind.” Minn. Stat. § 609.075

(2012). But

              to receive a requested voluntary intoxication jury instruction:
              (1) the defendant must be charged with a specific-intent
              crime; (2) there must be evidence sufficient to support a jury
              finding, by a preponderance of the evidence, that the
              defendant was intoxicated; and (3) the defendant must offer
              intoxication as an explanation for his actions.

Torres, 632 N.W.2d at 616.

       Specific-intent crime

       “[Appellate courts] apply common law principles when determining whether a

statute is a general-intent or a specific-intent crime.” State v. Wilson, 830 N.W.2d 849,



                                               5
853 (Minn. 2013). “When a statute simply prohibits a person from intentionally engaging

in the prohibited conduct, the crime is considered a general-intent crime.” State v. Fleck,

810 N.W.2d 303, 308 (Minn. 2012). “[A] specific-intent crime requires an intent to cause

a particular result.” Id. (quotation omitted). “[T]he most common usage of ‘specific

intent’ is to designate a special mental element which is required above and beyond any

mental state required with respect to the actus reus of the crime.” Id. (quotation omitted).

       The jury found Browder guilty of aiding and abetting third-degree criminal sexual

conduct under Minn. Stat. §§ 609.05, subd. 1, .344, subd. 1(d). Section 609.344,

subdivision 1(d), provides that third-degree criminal sexual conduct includes sexual

penetration with a complainant who “the actor knows or has reason to know . . . is

mentally impaired, mentally incapacitated, or physically helpless.” Under section 609.05,

subdivision 1, a person is criminally liable for another’s crime if he “intentionally aids”

the other to commit that crime, which the supreme court has explained “embodies two

important and necessary principles: (1) the defendant knew that his alleged accomplices

were going to commit a crime, and (2) the defendant intended his presence or actions to

further the commission of that crime.” State v. Milton, 821 N.W.2d 789, 805 (Minn.

2012) (quotations omitted). The intent requirements for aiding and abetting go “beyond

any mental state required with respect to the actus reus of the crime.” See Fleck, 810

N.W.2d at 308. We conclude that aiding and abetting third-degree criminal sexual

conduct is a specific-intent crime. See State v. Wenthe, 845 N.W.2d 222, 232 (Minn. App.

2014) (“Third-degree criminal sexual conduct involving an impaired victim who is

incapable of consenting also requires proof of specific intent because it requires proof


                                             6
that the defendant either knows or has reason to know of the victim’s condition.”), review

granted on other grounds (Minn. June 25, 2014).

       Sufficiency of evidence to support jury finding

       The second requirement for a voluntary-intoxication jury instruction is that the

“evidence [be] sufficient to support a jury finding, by a preponderance of the evidence,

that the defendant was intoxicated.” Torres, 632 N.W.2d at 616. “A party must satisfy the

burden of production before that party is entitled to a voluntary intoxication jury

instruction.” Wilson, 830 N.W.2d at 854. The evidence produced must be “consider[ed]

. . . in a light most favorable to the defendant.” Id. at 855.

       Browder testified that he began drinking at 2:30 p.m. on July 30, 2013, and that he

felt “very intoxicated” when he, Carlson, and J.H.B. arrived at Loring Greenway. He

testified that he “had to sit down for a while” and that he was “uncomfortable with

walking because [he] was intoxicated.” One of the police officers testified that Browder

showed indications of intoxication, which included that Browder smelled of alcohol. The

officer had no doubt that Browder had been drinking. Another officer testified that

Browder’s “eyes appeared red and maybe a little bloodshot.” Viewing the evidence of

Browder’s intoxication in the light most favorable to him, we conclude that Browder

satisfied his burden of production on his claim of intoxication.

       Intoxication as explanation for actions

       The third requirement for a voluntary-intoxication jury instruction is that the

defendant “offer intoxication as an explanation for his actions.” Torres, 632 N.W.2d at

616. A defendant offers intoxication as an explanation for his actions by making “an offer


                                               7
of proof to support her theory that she was so intoxicated that she was unable to form

intent.” Wilson, 830 N.W.2d at 856. Even without an offer of proof, “it may be that there

is some point at which evidence of a defendant’s intoxication, whether by consumption of

intoxicants alone or in combination with other evidence, is so overwhelming as to

constitute the effective offer of intoxication as an explanation for the defendant’s

actions.” Torres, 632 N.W.2d at 617. But “the mere fact of a person’s drinking does not

create a presumption of intoxication, and the possibility of intoxication does not create

the presumption that a person is incapable of forming a specific intent.” Wilson, 830

N.W.2d at 856 (quotation omitted).

      Here, Browder concedes that he “did not explicitly offer intoxication as an

explanation for his actions” but argues that “th[e] explanation was implied.” After the

close of evidence, he argued that he had offered evidence of his intoxication “as an

excuse or explanation for his actions” and that this was so because “he was saying he was

drinking and that his memory was affected by the drinking as the evening progressed.”

But Browder’s testimony regarding the effect of alcohol on his memory was unrelated to

his conduct. Rather, his testimony regarding the effect of alcohol on his memory related

only to the timing of certain events during the evening of July 30. His testimony did not

call into doubt his ability to form intent to aid and abet third-degree criminal sexual

conduct under Minn. Stat. §§ 609.05, subd. 1, .344, subd. 1(d).

      On appeal, Browder argues that “the evidence was consistent and overwhelming

that [he] was intoxicated and that his intoxication affected both his judgment and his

actions.” When determining whether evidence “is so overwhelming as to constitute the


                                            8
effective offer of intoxication as an explanation,” the supreme court has examined

supportive evidence in conjunction with evidence contradicting intoxication and lack of

intent. Torres, 632 N.W.2d at 617. As evidence of his intoxication, Browder emphasizes

that the presence of police officers did not prompt him to pull J.H.B.’s dress down to

cover her, that he repeatedly told police officers that J.H.B. was just drunk and that he

was taking care of her, that he did not provide police officers with J.H.B.’s name, and

that “[i]t did not occur to him that [J.H.B.] needed medical attention.” The state aptly

notes that Browder’s conduct could have been an attempt to assure police officers that no

criminal activity had occurred rather than evidence of his intoxication.

       We conclude that Browder’s testimony about the effect of alcohol on his memory

did not constitute an offer of poof that his level of intoxication rendered him unable to

form specific intent to commit the crime of aiding and abetting third-degree criminal

sexual conduct. The record contains no evidence that Browder ever told any law-

enforcement officer that his intoxication undermined his judgment. And although officers

testified about Browder’s indicia of intoxication, they also testified that he was able to

stand up on his own, did not stumble or slur his words and was able to talk coherently,

and was not “highly intoxicated” because “he could talk and walk and all that.” Browder

testified at trial to specific events that occurred on the evening of July 30. Viewing all the

evidence of Browder’s intoxication in a light most favorable to him, we conclude that the

evidence was not so overwhelming as to constitute the effective offer of intoxication as

an explanation.




                                              9
       In addition to his failure to make an adequate offer of proof of intoxication in the

district court, Browder’s claim of intoxication as a defense is undercut by the general-

denial defense that he presented to the jury. “When a defendant denies that conduct

occurred, the intoxication defense is unavailable because he has not placed intent at

issue.” State v. Austin, 788 N.W.2d 788, 794 n.5 (Minn. App. 2010), review denied

(Minn. Dec. 14, 2010). Browder denied that J.H.B. was “[p]inned” between Carlson and

him or even that she was between the two of them. He testified that he had not done

“anything wrong.”

       Because Browder offered a general denial as a defense and did not proffer any

evidence that his intoxication rendered him unable to know or have reason to know that

J.H.B. was mentally impaired, mentally incapacitated, or physically helpless, or to know

that Carlson was going to commit a crime, or to intend his presence or actions to further

the commission of that crime, the district court did not err by declining to instruct the jury

on voluntary intoxication.

Pro se arguments

       Jury coercion by expert witnesses

       Browder argues that many expert witnesses coerced the jury into reaching a guilty

verdict. We broadly interpret Browder’s argument as a challenge to the admissibility of

the expert testimony given by the witnesses. “A defendant appealing the admission of

evidence has the burden to show the admission was both erroneous and prejudicial.” State

v. Riddley, 776 N.W.2d 419, 424 (Minn. 2009). Browder has failed to meet his burden.

He identifies no testimony as either inadmissible or prejudicial. Moreover, by failing to


                                             10
make any legal argument or cite to any relevant legal authority, Browder has waived this

argument. See State v. Bartylla, 755 N.W.2d 8, 22 (Minn. 2008) (stating that “[supreme

court] will not consider pro se claims on appeal that are unsupported by either arguments

or citations to legal authority”).

       Inconsistent testimony

       Browder argues that the evidence was insufficient to support the jury finding of

guilt because of purported inconsistencies in the testimony of five witnesses. But

“[i]nconsistencies in the state’s case are not grounds for reversing the jury verdict.” State

v. Robinson, 604 N.W.2d 355, 366 (Minn. 2000); see also State v. Suhon, 742 N.W.2d

16, 20 (Minn. App. 2007) (“Inconsistencies in prosecution evidence do not require

reversal.”), review denied (Minn. Feb. 19, 2008). “[I]nconsistencies in testimony go to

witness credibility, which is an issue for the factfinder, not [an appellate] court.” State v.

Juarez, 837 N.W.2d 473, 487 (Minn. 2013). “The jury is free to accept part and reject

part of a witness’s testimony.” State v. Mems, 708 N.W.2d 526, 531 (Minn. 2006). The

jury was free to believe or disbelieve any portion of any witness’s testimony, whether or

not inconsistent with other testimony. Browder’s argument therefore fails.

       Prosecutorial error

       Browder argues that reversal is warranted because the prosecutor committed four

errors to which Browder did not object. “When an objection was not made to alleged

prosecutorial misconduct, [appellate courts] review under a modified plain-error test.”

State v. Martin, 773 N.W.2d 89, 104 (Minn. 2009). “Under that test, the defendant has

the burden to demonstrate that the misconduct constitutes (1) error, (2) that is plain.”


                                             11
State v. Mosley, 853 N.W.2d 789, 801 (Minn. 2014). “If the defendant is successful, the

burden then shifts to the State to demonstrate that the error did not affect the defendant’s

substantial rights.” State v. Matthews, 779 N.W.2d 543, 551 (Minn. 2010). “If all three

prongs of the test are met, [appellate courts] may correct the error only if it seriously

affects the fairness, integrity or public reputation of judicial proceedings.” Mosley, 853

N.W.2d at 801 (quotations omitted).

       Browder argues that the prosecutor erred by stating during his rebuttal argument

that “you know that [Browder] sexually penetrated [J.H.B.] while she was unconscious.”

Browder argues that the prosecutor’s statement was an improper expression of his

opinion in violation of established professional standards adopted by the American Bar

Association (ABA). “The prosecutor should not express his or her personal belief or

opinion as to the truth or falsity of any testimony or evidence or the guilt of the

defendant.” ABA Standards for Criminal Justice: Prosecution Function and Defense

Function, Standard 3-5.8(b) (3d ed. 1993). But “[i]n closing argument, a lawyer may

present all legitimate arguments on the evidence and all proper inferences that can be

drawn from that evidence.” State v. Pearson, 775 N.W.2d 155, 163 (Minn. 2009). The

prosecutor’s statement constituted argument about a permissible inference based on the

testimony of eyewitnesses, forensic scientists, and a nurse. This was not plain error.

       Browder argues that the prosecutor erred by stating that “whether or not [Browder]

was intoxicated is irrelevant. It is not an excuse, it is not a defense. It does not excuse his

crime.” A prosecutor may reference the law during trial as long as the prosecutor does not

misstate the law. See State v. Cao, 788 N.W.2d 710, 716 (Minn. 2010) (“Attorneys may


                                              12
reference the law during trial.”). “When a defendant denies that conduct occurred, the

intoxication defense is unavailable because he has not placed intent at issue.” Austin, 788

N.W.2d at 794 n.5. Here, rather than place intent at issue, Browder denied the alleged

conduct. The prosecutor’s statement was not plain error.

       Browder argues that the prosecutor erred by eliciting testimony from a police

officer about what the officer believed to be true regarding the incident. “It is improper

for a prosecutor to ask questions that are calculated to elicit or insinuate an inadmissible

and highly prejudicial answer.” State v. Henderson, 620 N.W.2d 688, 702 (Minn. 2001).

But a competent witness may testify as to matters of which he has personal knowledge.

Minn. R. Evid. 601, 602. The prosecutor questioned two police officers about their

personal knowledge, using primarily open-ended questions. The officers provided no

inadmissible testimony. This was not plain error.

       Browder argues that the prosecutor erred by stating that Browder had admitted to

putting his fingers inside of J.H.B. The state correctly notes that the prosecutor did not

claim that Browder had admitted to putting his fingers inside of J.H.B. Rather, the

prosecutor stated that the only explanation for the “amount of [J.H.B.’s] contribution” of

DNA that was found on Browder’s hands was that Browder put his fingers inside

J.G.B.’s vagina. “In closing argument, a lawyer may present all legitimate arguments on

the evidence and all proper inferences that can be drawn from that evidence.” Pearson,

775 N.W.2d at 163. The prosecutor’s statement constituted argument about a permissible

inference drawn from testimony about DNA testing and results. This was not plain error.

       Affirmed.


                                            13
