                        This opinion will be unpublished and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
                                   A13-1479

                                 State of Minnesota,
                                    Respondent,

                                         vs.

                              Emmanuel Trokon Brown,
                                   Appellant.

                                 Filed July 28, 2014
                                      Affirmed
                                  Connolly, Judge

                           Hennepin County District Court
                              File No. 27-CR-13-439


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

Michael O. Freeman, Hennepin County Attorney, Michael Richardson, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Rochelle R. Winn, Assistant
Public Defender, St. Paul, Minnesota (for appellant)


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

Willis, Judge.




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                           UNPUBLISHED OPINION

CONNOLLY, Judge

         Appellant challenges his conviction of violation of a domestic-abuse no-contact

order (DANCO), arguing that the prosecutor committed serious misconduct by eliciting

testimony that appellant had been in and out of jail and by commenting on that testimony

during closing argument. Because we see no error in the prosecutor’s conduct and no

prejudice to appellant, we affirm.

                                           FACTS

         In November 2012, a DANCO was issued prohibiting appellant Emmanuel Brown

from directly or indirectly contacting D.D., his former girlfriend. On January 3, 2013,

D.D.’s neighbor, who lived in the apartment next to hers, called 911 because he heard

screaming and yelling, including “help me” and “stop hitting me” in D.D.’s voice, and,

when he looked through the peephole in his door, he saw appellant grab D.D. and bring

her back into her apartment. When the police arrived, the neighbor told them what he

had seen and heard.

         Appellant was arrested and charged with violation of the DANCO; the complaint

was later amended to add charges of felony domestic assault and misdemeanor giving

false information to the police. At trial, the prosecutor presented D.D.’s neighbor as a

witness.     Appellant’s attorney cross-examined the neighbor about the relationship

between D.D. and appellant.1



1
    Appellant is represented by different counsel on appeal.

                                               2
              Q.     Were you aware that [D.D.] and [appellant] were no
                     longer in a relationship [on January 3, 2013] ?
              A.     If that was true I would have been aware of it.
              Q.     . . . [Y]ou don’t believe that to be true?
              A.     No.

On redirect examination, the prosecutor returned to the topic of appellant’s relationship

with D.D. on January 3, 2013.

              Q.     So what was your understanding of their situation?
              A.     [Appellant] got arrested like usual, got out, went back
                     home [i.e., to D.D.’s apartment].
              Q.     Had you seen [appellant] in the building prior to
                     January 3?
              A.     Yes.
              Q.     And how often were you seeing him in the building
                     prior to January 3rd?
              A.     I’d say about every other day.

Appellant’s attorney did not object to these questions.

       In closing argument, the prosecutor told the jury, “[R]ecall what [the neighbor]

said about [appellant and D.D.’s] relationship, it was not over, he’d get arrested and he’d

keep coming back. This was not the first and only time [appellant] was violating that

[DANCO].” Appellant’s attorney objected; the district court overruled the objection.

The district court offered to give a curative instruction on “evidence of other crimes,” but

appellant’s attorney declined the offer on the ground that it would call further attention to

the issue.

       Following trial, the jury found appellant guilty of all three charges, and he was

sentenced to 15 months in prison for the DANCO violation.                He challenges his

conviction, arguing that he was prejudiced by prosecutorial misconduct during

examination of a witness and closing argument.


                                             3
                                     DECISION

       1.        Cross-examination

       Appellant argues that the prosecutor committed misconduct by questioning the

neighbor about the relationship between appellant and D.D. and eliciting the information

that appellant, despite the DANCO, was seen at D.D.’s apartment “about every other

day.” Because the alleged error was not objected to, the standard of review is plain error.

See State v. Ramey, 721 N.W.2d 294, 302 (Minn. 2006) (stating that defendant must

demonstrate that error occurred and that error was plain, but prosecution must show lack

of prejudice).

       Appellant’s counsel opened the door to the prosecutor’s questions on redirect

examination by asking the neighbor about the relationship on cross-examination.

“Opening the door occurs when one party by introducing certain material . . . creates in

the opponent a right to respond with material that would otherwise have been

inadmissible.” State v. Bailey, 732 N.W.2d 612, 622 (Minn. 2007) (quotation omitted);

State v. DeZeler, 230 Minn. 39, 45, 41 N.W.2d 313, 318 (1950) (“Where one party

introduces inadmissible evidence, he cannot complain if the court permits his opponent in

rebuttal to introduce similar inadmissible evidence.”) Therefore, there was no error,

much less plain error, in the prosecutor questioning a witness about matters previously

explored by appellant’s attorney.

       Moreover, because the jury had already heard the neighbor testify that he did not

believe the relationship between appellant and D.D. was over by January 3, 2013, the

information that appellant and D.D. were still seeing each other would not have been


                                            4
prejudicial; the prosecution can meet its burden of showing lack of prejudice.        See

Ramey, 721 N.W.2d at 302.

      2.     Closing argument

      Appellant’s attorney objected to the alleged misconduct during closing argument.

The district court overruled the objection and offered to give a curative instruction;

appellant’s attorney rejected the offer.   The determination of whether a prosecutor

committed misconduct during closing argument is within the district court’s discretion.

State v. Ray, 659 N.W.2d 736, 746 (Minn. 2003).

      Appellant argues that the prosecutor’s closing-argument reference to the

neighbor’s testimony about appellant’s frequent presence at D.D.’s apartment and her

comment that “This was not the first and only time [appellant] was violating that

[DANCO]” were “unusually serious misconduct” that entitles appellant to a reversal of

his conviction. But prosecutorial misconduct requires a violation of “clear or established

standards of conduct, e.g., rules, laws, orders by a district court, or clear commands in

this state’s case law.” State v. McCray, 753 N.W.2d 746, 751 (Minn. 2008) (quotation

omitted). Appellant has shown no such violation. Moreover, even serious misconduct

will not result in a new trial if the misconduct is harmless beyond a reasonable doubt.

See State v. Mayhorn, 720 N.W.2d 776, 785 (Minn. 2006) (noting that the harmless-

beyond-a-reasonable-doubt standard is appropriate when there has been an objection to

prosecutorial misconduct).

      Because the prosecutor was entitled to question the neighbor about his knowledge

of appellant and D.D.’s ongoing relationship after appellant opened the door to this line


                                            5
of inquiry, she was also entitled to comment on the matter in closing argument. See State

v. Wahlberg, 296 N.W.2d 408, 419 (Minn. 1980) (noting that prosecutor has the “right to

present to the jury all legitimate arguments on the evidence, to analyze and explain the

evidence, and to present all proper inferences to be drawn therefrom”).

       Even assuming that the prosecutor’s closing-argument statement was plain error,

the error was harmless beyond a reasonable doubt. Before closing argument, the jury had

heard that a DANCO had been issued that prohibited appellant from direct or indirect

contact with D.D., that D.D.’s neighbor believed appellant and D.D. were still in a

relationship, that appellant was frequently at D.D.’s apartment, and that appellant had

repeatedly been charged with DANCO violations, incarcerated, and returned to D.D.

Particularly when the trial is considered as a whole, appellant was not harmed by the

prosecutor’s statement. See State v. Milton, 821 N.W.2d 789, 802 (Minn. 2012) (noting

that appellate courts review claims of prosecutorial misconduct to determine whether the

conduct, in light of the whole trial, impaired the defendant’s right to a fair trial).

       Neither the prosecutor’s questioning of D.D.’s neighbor nor her statement in

closing argument was error, and neither resulted in prejudice to appellant.

       Affirmed.




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