                        This opinion will be unpublished and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
                                   A15-0719

                                 State of Minnesota,
                                     Respondent,

                                         vs.

                                Jason Wyatt Mindrup,
                                      Appellant

                                Filed August 29, 2016
                                      Affirmed
                                    Worke, Judge

                            Mower County District Court
                             File No. 50-CR-13-2441

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

Mark A. Ostrem, Olmsted County Attorney, James P. Spencer, Assistant County
Attorney, Rochester, Minnesota (for respondent)

Duane A. Kennedy, Kennedy Law Office, Rochester, Minnesota (for appellant)

       Considered and decided by Smith, Tracy M., Presiding Judge; Worke, 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                          UNPUBLISHED OPINION

WORKE, Judge

          Appellant challenges his second- and third-degree criminal-sexual-conduct

convictions, arguing that the prosecutor committed misconduct and that he received

ineffective assistance of counsel. We affirm.

                                          FACTS

          On the evening of August 30, 2013, G.S. went to a bar. Appellant Jason Wyatt

Mindrup, an off-duty peace officer, was also at the bar. G.S. left the bar to show an

acquaintance her place of employment, which was two blocks away. While G.S. stood

outside of her place of employment, Mindrup arrived in a truck and offered to return G.S.

to the bar. G.S. entered Mindrup’s vehicle, but the acquaintance did not.

          Rather than return to the bar, Mindrup drove G.S. down a gravel road. After

stopping the truck, Mindrup pulled down G.S.’s dress, sucked on her right breast, and

digitally penetrated her vagina before returning G.S. to the bar. G.S. called 911, and an

ambulance transported her to a hospital. The nurse who examined G.S. indicated that

G.S. had bilateral pain on her breasts and that G.S.’s vaginal area was tender.

          A jury found Mindrup guilty of second- and third-degree criminal sexual conduct,

and the district court sentenced Mindrup to 90 months in prison. Mindrup filed a notice

of appeal, but subsequently moved to stay the appeal in order to pursue postconviction

relief.     After we granted Mindrup’s motion, he petitioned the district court for

postconviction relief. The district court denied Mindrup’s petition. Mindrup then moved

this court to dissolve the stay of his direct appeal, and this court granted the motion.


                                              2
                                     DECISION

       “When a defendant initially files a direct appeal and then moves for a stay to

pursue postconviction relief, [an appellate court] review[s] the postconviction court’s

decisions using the same standard that [it] appl[ies] on direct appeal.” State v. Beecroft,

813 N.W.2d 814, 836 (Minn. 2012).

Prosecutorial misconduct

       Mindrup argues that the prosecutor committed misconduct by failing to disclose

that G.S. had a 2006 misdemeanor conviction for providing a false name to a peace

officer. “The overarching problem presented by prosecutorial misconduct is that it may

deny the defendant’s right to a fair trial.” State v. Washington, 725 N.W.2d 125, 133

(Minn. App. 2006), review denied (Minn. Mar. 20, 2007). In felony cases, a prosecutor

must disclose “[t]he names and addresses of witnesses who may be called at trial, along

with their record of convictions, if any, within the prosecutor’s actual knowledge.”

Minn. R. Crim. P. 9.01, subd. 1(1)(a). But a prosecutor’s failure to disclose a witness’s

criminal record does not necessarily require reversal if the error was not prejudicial.

State v. Jackson, 346 N.W.2d 634, 638 (Minn. 1984). When the state presents additional

inculpatory evidence, it “decreases the likelihood that any error was prejudicial.” Id.

       The state concedes that it failed to disclose G.S.’s prior conviction. But Mindrup’s

argument is still unpersuasive. First, the record does not indicate that the state acted in

bad faith. Generally, when discovery violations appear to be the result of “oversight or

mistake” and “not deliberate attempts to hide facts or surprise the defense,” the defendant

is not deprived of a fair trial. See State v. Scanlon, 719 N.W.2d 674, 687 (Minn. 2006);


                                             3
see also State v. Miller, 754 N.W.2d 686, 706 (Minn. 2008) (stating that a discovery

violation did not prejudice the defendant when the prosecutor “followed his office’s usual

practice for obtaining criminal history records”).

       Second, Mindrup was not prejudiced by the state’s inadvertence. See State v.

Palubicki, 700 N.W.2d 476, 489 (Minn. 2005) (stating that “without a showing of

prejudice to the defendant, the state’s violation of a discovery rule will not result in a new

trial”). Here, several witnesses provided testimony consistent with G.S.’s testimony. For

example, G.S. testified that Mindrup caused her pain by sucking on her breast, and the

nurse who examined G.S. indicated that G.S. had redness on her areola. Mindrup’s

testimony was not as consistent; Mindrup testified that his face contacted G.S.’s breast

for a “second” at the bar and that he did not touch G.S.’s areolas. Therefore, Mindrup’s

prosecutorial-misconduct argument is unpersuasive because the failure to disclose the

criminal record was inadvertent and nonprejudicial. 1

Ineffective assistance of counsel

       Mindrup argues that he received ineffective assistance of counsel. Ineffective-

assistance-of-counsel claims are reviewed de novo. Opsahl v. State, 677 N.W.2d 414,

420 (Minn. 2004).       To establish ineffective assistance of counsel, Mindrup must

demonstrate that “counsel’s performance fell below an objective standard of


1
  Mindrup also argues that the prosecutor committed misconduct by failing to examine
three witnesses who, allegedly, could have impeached G.S. But Mindrup does not cite
any authority or provide any argument explaining why the prosecutor was compelled to
call the witnesses, and prejudicial error is not obvious on mere inspection. See State v.
Wembley, 712 N.W.2d 783, 795 (Minn. App. 2006), aff’d, 728 N.W.2d 243 (Minn.
2007).

                                              4
reasonableness, and that a reasonable probability exists that the outcome would have

been different but for counsel’s errors.” State v. Rhodes, 657 N.W.2d 823, 842 (Minn.

2003) (quotation omitted).      A reasonable probability is “a probability sufficient to

undermine confidence in the outcome.” Id. (quotation omitted).

      A. Right to remain silent

      Mindrup first argues that his attorney was ineffective because he: (1) subjected

him to interrogation by two police officers during the investigation and (2) told him that

he “must testify” during trial. We are not persuaded.

      First, Mindrup forfeited these arguments. See State v. Myhre, 875 N.W.2d 799,

806 (Minn. 2016) (stating that an appellate court may deem issues raised in a brief, but

“not adequately argued or explained,” forfeited on appeal). “An assignment of error in a

brief based on mere assertion and not supported by argument or authority is [forfeited]

unless prejudicial error is obvious on mere inspection.” State v. Wembley, 712 N.W.2d

783, 795 (Minn. App. 2006) (quotation omitted), aff’d, 728 N.W.2d 243 (Minn. 2007).

Here, Mindrup briefly states his arguments and cites four irrelevant cases in the “Legal

Issues” section of his brief.     Mindrup does not further argue or explain his bald

assertions. Moreover, prejudicial error is not obvious on mere inspection; Mindrup’s

attorney may have felt that speaking with the police and testifying were in Mindrup’s best

interests because the state possessed and presented a significant amount of incriminating

evidence.

      Additionally, Mindrup informed the district court that he understood and wished to

waive his right to remain silent, and that nobody coerced him into waiving his right to


                                            5
remain silent. Therefore, Mindrup did not receive ineffective assistance of counsel when

he was interrogated and subsequently chose to testify.

       B. Failure to impeach a witness with prior conviction

       Mindrup argues that his attorney failed to “find and use [G.S.’s] conviction for

lying to a peace officer” for impeachment purposes. But Mindrup simply states this

claim in the “Legal Issues” section of his brief and cites two irrelevant cases. Therefore,

Mindrup forfeited this argument because it is not “supported by argument or authority”

and prejudicial error is not obvious on mere inspection. See id.

       C. Failure to call additional witnesses

       Mindrup argues that his attorney failed to call three witnesses. Mindrup asserts

that one witness could have testified that G.S. previously made threatening statements

regarding Mindrup and the other two could have testified that G.S. recanted her

allegation.   Mindrup again forfeited this argument because it is not “supported by

argument or authority” and prejudicial error is not obvious on mere inspection. See id.

       Additionally, determining which witnesses to call constitutes trial strategy, “which

lie[s] within the proper discretion of trial counsel and will generally not be reviewed later

for competence.” See State v. Bobo, 770 N.W.2d 129, 138 (Minn. 2009); see also State v.

Voorhees, 596 N.W.2d 241, 255 (Minn. 1999) (stating that counsel’s decision regarding

which witnesses to call involves “trial strategy that [an appellate court] will not review”).

       D. Failure to adequately cross-examine a witness and introduce evidence

       Mindrup argues that his attorney failed to adequately cross-examine the nurse who

examined G.S.     An appellate court typically will not review an attorney’s decision


                                              6
regarding what evidence to present to the jury, including the extent of cross-examination.

See Reed v. State, 793 N.W.2d 725, 733, 736 (Minn. 2010); State v. Miller, 666 N.W.2d

703, 717 (Minn. 2003) (rejecting an ineffective-assistance-of-counsel claim based, in

part, on ineffective cross-examination).

       Moreover, the record does not support Mindrup’s argument. Mindrup claims that

he was convicted of using coercion to accomplish criminal sexual conduct, but that G.S.

told the nurse that Mindrup did not threaten or coerce her. While the nurse’s report

contains a checked box indicating that the incident did not involve “[v]erbal

threats/coercion,” Mindrup was convicted of using “force or coercion” to accomplish the

act. See Minn. Stat. §§ 609.343, subd. 1(e)(i); .344, subd. 1(c) (2012) (emphasis added).

The jury could have concluded that Mindrup used force rather than coercion. Further, the

report indicates that G.S. did not consent to Mindrup’s actions, and counsel did cross-

examine the nurse regarding other portions of the report.

       Mindrup similarly argues that his attorney failed to introduce into evidence the

nurse’s report documenting G.S.’s examination. Again, an appellate court typically will

not review an attorney’s decision regarding what evidence to present to the jury. See

Reed, 793 N.W.2d at 733. Moreover, counsel’s decision was reasonable because the

report contains incriminating information. See State v. Lahue, 585 N.W.2d 785, 790

(Minn. 1998) (“Appellant does not explain how any of the items . . . would exonerate

him. In contrast, several pieces of physical evidence tie the appellant to the murder.”).




                                             7
       E. Failure to move for suppression of 911 recording

       Mindrup argues that his attorney failed to move for suppression or dismissal when

counsel discovered that “half of [the] 911 call was destroyed by the [s]tate.”           But

Mindrup, again, forfeited this claim because it is not “supported by argument or

authority” and prejudicial error is not obvious on mere inspection. See Wembley, 712

N.W.2d at 795.

       F. Failure to object when the prosecutor referred to “we” and “us”

       Mindrup argues that his attorney failed to object to the prosecutor’s use of the

words “we” and “us” during her opening and closing arguments. We are not persuaded.

       First, this court has consistently held that an attorney’s representation does not

“fall below an objective standard of reasonableness” when he decides not to object during

closing argument because such action constitutes trial strategy. See, e.g., Sanderson v.

State, 601 N.W.2d 219, 226 (Minn. App. 1999), review denied (Minn. Mar. 28, 2000).

       Second, Mindrup was not prejudiced by his attorney’s failure to object to the

prosecutor’s comments. “[A] prosecutor is not a member of the jury, so to use ‘we’ and

‘us’ is inappropriate and may be an effort to appeal to the jury’s passions.” State v.

Mayhorn, 720 N.W.2d 776, 790 (Minn. 2006). In Mayhorn, the prosecutor stated: “This

is kind of foreign for all of us, I believe, because we’re not really accustomed to this drug

world and drug dealing.” Id. at 789. The supreme court reasoned that “even to the extent

it is permissible to describe a ‘drug world’ of which the jury is not a part, it does not

follow that a prosecutor may describe herself and the jury as a group of which the

defendant is not a part.” Id. at 790.


                                             8
       The supreme court later stated that a prosecutor does not commit misconduct by

using “we” when “describing the evidence . . . presented at trial (i.e., ‘we learned’ various

facts from the trial testimony).” See Nunn v. State, 753 N.W.2d 657, 663 (Minn. 2008).

Here, the prosecutor used “we” in opening and closing arguments, however, all but two

of the instances are similar to the use permitted in Nunn. The prosecutor, however, twice

used “we” in an inappropriate manner. In her opening argument the prosecutor stated:

“This is a case about misplaced trust. About trust placed in police officers. The trust we

place in them to serve and protect people.” In her closing argument the prosecutor stated:

“I told you that [this case] was . . . about an abuse of trust. The trust we place in people

that we know to hold positions of authority . . . .”

       These two statements were inappropriate because Mindrup was a law-enforcement

officer at the time of the offense and the prosecutor used “we” to describe herself and the

jury as a group to which Mindrup was not a member—civilians who are not peace

officers. See Mayhorn, 720 N.W.2d at 790; see also Nunn, 753 N.W.2d at 663 (stating

that the prosecutor did not use “we” to place the defendant and prosecutor in separate

groups).   Nevertheless, Mindrup’s argument is still unpersuasive because the two

comments constitute less than one page of approximately 28 pages of arguments. See

Sanderson, 601 N.W.2d at 226–27 (stating that appellant did not receive ineffective

assistance because he failed to show that the verdict would have been different if his

attorney objected during closing argument); State v. Ture, 353 N.W.2d 502, 517 (Minn.

1984) (stating that objectionable comments did not constitute prosecutorial misconduct




                                              9
because they were isolated and made during a lengthy argument). Therefore, Mindrup

did not receive ineffective assistance of counsel.

       Affirmed.




                                             10
