                          This opinion will be unpublished and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
                                     A15-1661

                                    State of Minnesota,
                                        Respondent,

                                            vs.

                                  Steven Kobena Ampah,
                                        Appellant.

                                Filed September 12, 2016
                                        Affirmed
                                    Bjorkman, Judge


                              Hennepin County District Court
                                File No. 27-CR-14-18601

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

Michael O. Freeman, Hennepin County Attorney, Elizabeth R. Johnston, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

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

         Considered and decided by Schellhas, Presiding Judge; Bjorkman, Judge; and Kirk,

Judge.

                         UNPUBLISHED OPINION

BJORKMAN, Judge

         Appellant challenges his conviction of second-degree assault, arguing that the

district court deprived him of his right to present a complete defense, the prosecutor
committed prejudicial misconduct during closing arguments, the district court plainly erred

by failing to caution the jury on the proper use of relationship evidence, he received

ineffective assistance of counsel, and the cumulative effect of these errors deprived him of

his right to a fair trial. We affirm.

                                         FACTS

       Appellant Steven Kobena Ampah and Q.L began dating in August 2011. In January

2012, Q.L. moved in with Ampah. According to Q.L, their relationship began to change

almost immediately. Ampah became controlling, criticized her appearance, threw away

her clothing, and pawned her jewelry. Over the next one-and-a-half years, Q.L. attempted

to leave Ampah many times, but Ampah always persuaded her to stay. During the final six

months of their relationship, Ampah became physically aggressive, grabbing Q.L.’s wrists

and arms to restrain her from leaving, and throwing her possessions, causing many to break.

       On the night of June 26, 2014, Q.L. confronted Ampah after a woman knocked on

the apartment door in the middle of the night. Ampah claimed he and the woman were just

friends. Q.L. returned to bed. The following morning, she woke up and checked her

e-mail. Ampah saw that one of the messages was from a male; he became upset and

accused Q.L. of being unfaithful, and the two began to argue.

       The dispute became physical and Q.L. told Ampah she wanted to leave. Ampah

pushed her down and grabbed her wrists and arms. Q.L. managed to break loose and ran

into the bedroom. She tried to call 911, but Ampah took her phone. Ampah then shoved

her against the dresser and told her he would not let her leave because he had “invested too

much time” in her and he “refuse[d] to let [her] live without [him].”


                                             2
       While Q.L. was gathering her possessions, Ampah approached her with a knife.

While holding the knife a few inches from her neck, he repeatedly told her he would kill

her and would not let her live without him. Q.L. screamed for a neighbor, but Ampah told

her the neighbor was not home. Q.L. then attempted to calm Ampah down, saying that she

was sorry and would stay. Eventually, Q.L. retrieved her phone, shoved Ampah aside, and

ran out of the building.

       Q.L. ran to a nearby motel and called 911. She told the dispatcher that Ampah had

a knife and tried to stab her, and that she thought she saw Ampah’s car approaching. The

dispatcher told her there was an officer on scene and instructed her to talk to the officer.

Richfield Police Officer Tianna Hadjiyiannis spoke with Q.L. about the incident and then

took her to the police station.

       Ampah was not at the motel or the apartment building when the officers arrived.

Officers gained access to the apartment using a master key. Officer Alex Blaine discovered

a knife on the desk in the bedroom. He also saw a broken TV on the floor. While the

police were searching the apartment, another resident, M.F., noticed Ampah sitting in his

car approximately one block away from the building. M.F. described Ampah as leaning

back in his seat “as if trying to hide.” Officers later located Ampah approximately six

blocks away. He was sitting in his car with the seat reclined all the way back.

       Respondent State of Minnesota charged Ampah with second-degree assault. During

a jury trial, Ampah sought to elicit testimony from neighbor S.H. that prior to the incident,

Q.L. told her “If my man crosses me, I will call his probation officer or the police and get

him in trouble.” The state argued the statement was inadmissible hearsay. The district


                                             3
court ruled that Ampah could ask S.H. if she had any conversations with Q.L. but could

not ask her about the content of those conversations.

       The jury found Ampah guilty. Ampah moved for a judgment of acquittal or a new

trial. The district court denied the motions and sentenced Ampah to 45 months in prison.

Ampah appeals.

                                      DECISION

I.     The district court did not abuse its discretion by excluding Q.L.’s out-of-court
       statement.

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

not be reversed absent a clear abuse of discretion. On appeal, the appellant has the burden

of establishing that the [district] court abused its discretion and that appellant was thereby

prejudiced.” State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003) (citation omitted).

       Ampah argues that the district court abused its discretion by excluding as hearsay a

statement Q.L. allegedly made to her neighbor, S.H. Although the record does not contain

the precise statement, both parties summarize it as “If my man crosses me, I will call his

probation officer or the police and get him in trouble.” Ampah assigns four errors, arguing

that the statement is not hearsay, falls within the exception for statements against interest,

is admissible for impeachment purposes, and its exclusion violated his constitutional right

to present a complete defense. These arguments are unavailing.

       First, the proffered statement is hearsay. Hearsay is an out-of-court statement

offered to prove the truth of the matter asserted. Minn. R. Evid. 801(c). Ampah’s theory

of defense was that Q.L. fabricated the assault because she was mad at him. The substance



                                              4
of the statement Ampah sought to introduce—“If my man crosses me, I will call his

probation officer or the police and get him in trouble”—directly implicates his defense.

The defense’s theory was that Q.L. acted in accordance with her out-of-court statement.

Because Ampah offered the statement for its content, it is hearsay.

       Second, we are not persuaded that the statement goes against Q.L.’s interests. A

statement against interest is one that, at the time of its making, is “so far tended to subject

the declarant to civil or criminal liability” that a reasonable person would not make the

statement. Minn. R. Evid. 804(b)(3). The district court correctly observed that a declarant

must be unavailable as a witness to admit a statement under this exception. Id. Ampah

argues that the availability of a witness is a technicality, and that the statement goes against

Q.L.’s interest because it indicates her willingness to file a false release report to get Ampah

in trouble. We are not persuaded.

       Rule 804(b)(3), by its terms, only applies to statements of unavailable witnesses.

Ampah has not convinced us to ignore the rule’s clear language. The record does not

indicate when, or under what circumstances, the statement was made. And the statement

does not, on its face, demonstrate Q.L.’s intent to file a false police report and expose

herself to criminal liability. Given Q.L.’s testimony that the relationship deteriorated

rapidly over the final six months and that Ampah began physically restraining her and

shoving her, the statement could reasonably be interpreted to suggest she would contact

Ampah’s probation officer if he repeated such behavior.




                                               5
       Third, Ampah was permitted to impeach Q.L.’s testimony that she did not have any

personal conversations with S.H. The district court ruled that the defense could inquire

generally about such conversations, but not about the substance of the communication.

This ruling did not limit Ampah’s ability to impeach Q.L.’s testimony that she was “not

close to [S.H.]” and had “never sat down and had a real conversation with her.” Defense

counsel elicited S.H.’s contrary testimony that she “considered [Q.L.] to be a friend” and

that they spoke on a regular basis about personal subjects, including Q.L.’s relationship

with Ampah. S.H.’s testimony impeached Q.L.’s assertion that she and S.H. were not close

and did not speak regularly.1

       Finally, the exclusion of Q.L.’s statement did not violate Ampah’s constitutional

right to present a complete defense. A criminal defendant has the right to present a

complete defense. State v. Munt, 831 N.W.2d 569, 585 (Minn. 2013). But the right is not

absolute, and a defendant “must still comply with established rules of evidence designed

to assure both fairness and reliability in assessing guilt or innocence.” Id. (quotation

omitted). Because the statement is hearsay and does not fall within an exception to the

hearsay rule, its exclusion did not violate Ampah’s right to present a complete defense. In


1
  Ampah also argues that the statement was admissible as a statement of Q.L.’s then-
existing state of mind under Minn. R. Evid. 803(3). To be admissible under the state-of-
mind exception to the hearsay rule, a statement must be made contemporaneously with the
mental state sought to be proven, not be made under suspicious circumstances, and the
declarant’s state of mind must be at issue. State v. DeRosier, 695 N.W.2d 97, 104-05
(Minn. 2005). Ampah first argued the state-of-mind exception in his motion for a new
trial. Because the record does not indicate when the statement was made or supply
sufficient detail surrounding what may have motivated the statement, the district court
denied Ampah’s request for relief based on this claimed evidentiary error. We discern no
abuse of discretion.

                                            6
sum, we discern no abuse of discretion by the district court in excluding Q.L.’s out-of-

court statement.

II.    The prosecutor did not commit prejudicial misconduct during closing
       arguments.

       We look at a trial as a whole to determine whether prosecutorial misconduct

warrants a new trial. State v. Johnson, 616 N.W.2d 720, 727-28 (Minn. 2000); see also

State v. Hoppe, 641 N.W.2d 315, 321-22 (Minn. App. 2002) (holding that a new trial was

warranted after considering all instances of prosecutorial misconduct), review denied

(Minn. May 14, 2002). Ampah alleges that the prosecutor made two statements that

constitute prosecutorial misconduct. Because he only objected to one statement, and we

apply different standards of review to objected-to and unobjected-to misconduct, we

address each in turn.

       Objected-to statement

       When an objection is made at trial, we first determine whether the prosecutor

engaged in misconduct, and, if so, we apply a “two-tiered harmless-error analysis.” State

v. Jackson, 773 N.W.2d 111, 121 (Minn. 2009). If the misconduct is unusually serious, we

decide whether it was harmless beyond a reasonable doubt. Id. If the misconduct is less

serious, we consider whether it likely played a substantial part in influencing the jury’s

verdict. Id.

       During closing arguments, defense counsel focused on the lack of evidence

corroborating Q.L.’s testimony. Defense counsel further argued that Q.L. was angry that

her relationship with Ampah was over and “was going to give him what was coming for



                                            7
leaving.” During rebuttal argument, the prosecutor reminded the jury that statements of

counsel are not evidence, and that several statements made by defense counsel reflected

his speculation, not the evidence. The prosecutor then stated “Don’t speculate on things

that are not before you. That’s not your job as a juror. Your job as a juror is to focus on

the evidence that was presented to you.” Ampah moved for a mistrial, arguing the

prosecutor’s statement impermissibly shifted the burden of proof by leading the jury to

believe it could not consider the lack of corroborating evidence. The district court denied

the motion.

       Ampah argues that he was prejudiced because the prosecutor misstated the law with

respect to the state’s burden of proof. We disagree. The prosecutor’s assertions that the

statements of counsel are not evidence and that the jury should focus on the evidence that

was presented to it did not misstate the law. At the outset of the trial, the district court

instructed the jury that it should “base [its] verdict on the evidence in this case and not on

evidence that is not presented in the case” and that the verdict “must be based on the

evidence [it] hear[s] during the trial.” After closing arguments, the district court instructed

the jury that the statements of counsel are not evidence. The court further told the jury that

it “must consider all the evidence [it has] heard and seen in this trial” and stressed that the

state must convince the jury “by evidence beyond a reasonable doubt that [Ampah] is guilty

of the crime charged.” Because the prosecutor’s statements regarding speculation and the

jurors’ responsibility to focus on the evidence are consistent with these instructions, and

did not misstate the law regarding the state’s burden of proof, we discern no misconduct.




                                              8
       Unobjected-to statement

       We review unobjected-to prosecutorial misconduct under a modified plain-error

standard, considering whether there is “(1) error, (2) that is plain, and (3) affects substantial

rights.” State v. Ramey, 721 N.W.2d 294, 302 (Minn. 2006). On this third prong, the state

has the burden of proving that any misconduct did not affect the defendant’s substantial

rights. State v. Hill, 801 N.W.2d 646, 654 (Minn. 2011). When deciding whether the state

has met this burden, we consider (1) the strength of the evidence against the defendant,

(2) the pervasiveness of the misconduct, and (3) whether the defendant had the opportunity,

or made efforts, to rebut the prosecutor’s improper suggestions. Id. at 654-55. “If we

conclude that any prong of the plain error analysis is not satisfied, we need not consider

the other prongs.” State v. Brown, 815 N.W.2d 609, 620 (Minn. 2012).

       Ampah argues that the statement “if you believe [Q.L.] was telling you the truth,

that is proof beyond a reasonable doubt” was plain error because it impermissibly

suggested the jury must find that a witness is lying to acquit the defendant and distorted

the state’s burden of proof. We are not persuaded. When reviewing the challenged

statement, we must consider the closing arguments as a whole. Johnson, 616 N.W.2d at

728. In doing so, we conclude the prosecutor did not misstate the law or lower the state’s

burden of proof.

       The prosecutor explained the three elements the state had to prove and then how the

state had proven each element. The prosecutor anticipated that the defense would focus on

the lack of evidence corroborating Q.L.’s testimony, stating that there was some

corroborating evidence, and noting that the law does not require corroboration. This is not


                                               9
a misstatement of the law. A conviction may be based on the uncorroborated testimony of

a single, credible witness. State v. Foreman, 680 N.W.2d 536, 539 (Minn. 2004). The

prosecutor then explained how Q.L.’s testimony addressed each element of the crime and

urged the jury to “critically analyze” Q.L.’s testimony. This did not improperly lower the

burden of proof.

       Moreover, both the prosecutor and the district court explained the reasonable-doubt

standard. A district court’s “repeated instruction on the state’s burden to prove the

defendant’s guilt leaves no doubt that the jury could not have been misled that it was the

burden of the state to prove each element of the charged crime beyond a reasonable doubt.”

State v. Robinson, 604 N.W.2d 355, 364 (Minn. 2000). On this record, we conclude that

the prosecutor’s statement does not constitute plain error.

III.   The district court’s error in not instructing the jury on the proper use of
       relationship evidence was harmless.

       The district court admitted relationship evidence under Minn. Stat. § 634.20 (2014)

but did not give a cautionary instruction on the limited and proper use of such evidence.

Ampah did not request a cautionary instruction, but “even in the absence of a request from

counsel, the district court should provide a cautionary instruction when the [relationship]

evidence is admitted, and again during its final charge to the jury.” State v. Meldrum, 724

N.W.2d 15, 21 (Minn. App. 2006), review denied (Minn. Jan. 24, 2007). A district court’s

failure to provide a cautionary instruction does not automatically require reversal. State v.

Barnslater, 786 N.W.2d 646, 653 (Minn. App. 2010), review denied (Minn. Oct. 27, 2010).

This is particularly true when the other evidence makes it clear that the probative value



                                             10
outweighs the potential prejudice. Id. We also consider whether the prosecutor urged the

jury to use the relationship evidence in an improper way. State v. Word, 755 N.W.2d 776,

786 (Minn. App. 2008).

       Ampah argues that the absence of a cautionary instruction requires reversal because

the prosecutor urged the jury to use the relationship evidence for an improper purpose—

portraying him as a controlling boyfriend. We disagree. The purpose of relationship

evidence is to “illuminate the history of the relationship” and “put the crime charged in the

context of the relationship between the two.” State v. McCoy, 682 N.W.2d 153, 159 (Minn.

2004). Here, the relationship evidence provided a general overview of the history and

dynamic of the relationship between Ampah and Q.L. This is not an improper purpose.

       Ampah next argues that the risk of unfair prejudice was high because the

relationship evidence was “dramatic.” We are not persuaded. Q.L. plainly presented

Ampah as increasingly controlling and aggressive. But her testimony was very general

and did not include allegations that Ampah used weapons. Q.L.’s testimony that Ampah

had grabbed her arms in the past and her assertion that Ampah held a knife within inches

of her body and threatened to kill her on the day in question are markedly different. It is

unlikely the jury would convict Ampah based on his past conduct that was substantially

different from and not nearly as serious as the charged offense.

       Because the risk of unfair prejudice was low and the prosecutor did not urge the jury

to use the relationship evidence in an improper way, the district court’s failure to provide

a cautionary instruction does not entitle Ampah to a new trial.




                                             11
IV.    Amaph did not receive ineffective assistance of counsel.

       To prevail on a claim of ineffective assistance of counsel, Ampah must demonstrate

“(1) that his counsel’s representation ‘fell below an objective standard of reasonableness’;

and (2) ‘there is a reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different.’” Nissalke v. State, 861 N.W.2d 88,

94 (Minn. 2015) (quoting Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S. Ct.

2052, 2064, 2068 (1984)). An attorney provides reasonable assistance when he exercises

the customary skills and diligence that a reasonably competent attorney would exercise

under the circumstances. Dukes v. State, 621 N.W.2d 246, 252 (Minn. 2001). A trial

counsel’s performance is presumed to be reasonable. State v. Vang, 847 N.W.2d 248, 266

(Minn. 2014).

       In a pro se supplemental brief, Ampah argues that his counsel was ineffective

because he did not tell Ampah that he could change his mind after he waived his right to

testify. This argument is unavailing. The record indicates that before waiving his right to

testify, there was a recess to allow Ampah and his attorney to discuss the issue. After the

discussion, Ampah waived his right to testify on the record, acknowledging that he had

sufficient time to discuss the decision with his attorney, that his attorney had answered all

of his questions, and that he personally decided to give up his right to testify. Nothing in

the record supports Ampah’s assertion that he would have testified if he had known the

district court was going to exclude Q.L.’s out-of-court statement. Because Ampah did not




                                             12
indicate he had any questions and counsel’s performance is presumed to be reasonable, we

conclude Ampah has failed to establish he received ineffective assistance of counsel.2

      Affirmed.




2
  Ampah also argues cumulative error entitles him to a new trial. A new trial may be
granted when the cumulative effect of the errors, none of which alone might have been
sufficient to warrant reversal, deprived a defendant of an unbiased jury. State v. Johnson,
441 N.W.2d 460, 466 (Minn. 1989). Because we conclude the only error was the district
court’s failure to give a cautionary instruction on the use of relationship evidence,
cumulative error does not entitle Ampah to relief.

                                            13
