                        This opinion will be unpublished and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
                                   A15-1157


                                 State of Minnesota,
                                     Respondent,

                                         vs.

                                Khalil Anwar Dykes,
                                     Appellant.


                                 Filed June 20, 2016
                                      Affirmed
                                  Bjorkman, Judge


                           Hennepin County District Court
                             File No. 27-CR-14-28294

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

Michael O. Freeman, Hennepin County Attorney, Kelly O’Neill Moller, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Jessica Merz Godes, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

      Considered and decided by Peterson, Presiding Judge; Bjorkman, Judge; and

Rodenberg, Judge.
                          UNPUBLISHED OPINION

BJORKMAN, Judge

       Appellant challenges his conviction of first-degree criminal sexual conduct, arguing

that he was deprived of a fair trial because the prosecutor committed prejudicial misconduct

while cross-examining him. We affirm.

                                          FACTS

       On September 24, 2014, A.P. called 911 to report that she had just been raped in her

home. She described the assailant as an African-American male wearing black Converse

sneakers with white laces, and reported that he might have a box cutter. She did not see

his face, but indicated that her roommate, A.H., might know him. When the police arrived,

A.P. stated that the assailant’s voice sounded like that of A.H.’s boyfriend, appellant Khalil

Anwar Dykes. A.P. recounted the assault and then went to the hospital to be examined by

a sexual-assault nurse.

       Hennepin County Sherriff’s Deputy Ethan Weinzierl and his canine partner assisted

by tracking the assailant. During the search, witness A.A. reported that earlier in the day

he had observed an African-American male walking down the alley and looking back and

forth in a “shifty” manner. The man threw something onto the ground near the end of the

alley and then drove away in a red car. Deputy Weinzierl and his canine partner discovered

a used condom in a planter located in the area described by A.A.

       Two Richfield police officers at the scene noticed a car drive by that matched the

description provided by A.A. They stopped the car, identified Dykes as the driver, and

arrested him. A search of the car revealed a pair of black sneakers with white laces.


                                              2
       While in custody, Dykes initially denied being at A.P.’s residence earlier that day.

He explained that he had not been welcome at the residence since the previous winter, and

provided a detailed account of where he had been that morning. When the interviewing

officers told Dykes that a witness saw an individual matching his description get into a red

car near A.P.’s house, Dykes responded that he had parked near the house but he had not

gone inside. When the officers told Dykes they found a used condom and were testing it

for DNA, Dykes replied that he did not carry condoms and that the used condom would

not contain his DNA.

       Dykes’s story continued to evolve as the interview progressed. He eventually

admitted having sexual intercourse with A.P. in her residence. But he claimed it was

consensual. He also admitted throwing the condom into the weeds. Later that day, officers

interviewed Dykes a second time. When asked if he held a box cutter to A.P.’s throat

during the sexual encounter, Dykes denied having any sort of weapon.                But he

acknowledged keeping a screwdriver in his backpack for protection because he lived in

North Minneapolis. A screwdriver and condoms were found in the same pocket of his

backpack.

       Respondent State of Minnesota charged Dykes with first-degree criminal sexual

conduct. At trial, A.P. testified that on the day of the assault she was at home writing a

letter to her boyfriend, who was away at boot camp. She heard a knocking sound. No one

was at the front door, so she checked the back door and discovered it was slightly ajar. She

closed it and returned to her room. As she was passing A.H.’s room, she looked inside and

saw someone hiding under a comforter. The person then threw the comforter over her head


                                             3
and dragged her into the bathroom while holding something sharp against her neck. In an

effort to stop the assailant, A.P. stated that she had just had a miscarriage. But the assailant

did not stop and forcibly penetrated her. She did not see his face, but saw that he was

wearing black Converse sneakers with white laces and that he was African American. She

identified the shoes discovered in Dykes’s car as the shoes the assailant was wearing. A.P.

testified that the assailant then dragged her into A.H.’s room and told her not to move until

he was gone or he would kill her.

       The sexual-assault nurse testified that when she met A.P. in the emergency room,

A.P. was crying hard and having a difficult time speaking. During the examination, the

nurse discovered a three centimeter laceration at the bottom of A.P.’s vaginal opening. The

nurse opined that such an injury is rare and caused by forceful impact.

       Dykes testified that on the date in question, he dropped off A.H. at work and then

went to A.P.’s house and asked her if she “want[ed] to kick it today,” to which A.P.

responded she did. The two ate breakfast together, and then A.P. asked if he had a condom.

A.P. then got a condom, retrieved the comforter from A.H.’s room, and started kissing him.

The two engaged in consensual sexual intercourse in the bathroom, until A.P. stated,

“Maybe I shouldn’t be doing this. I just had a miscarriage.” Dykes immediately stopped

and looked into A.H.’s room, noticing flowers he had given her; it then dawned on him

that he was cheating on her again. Dykes immediately left to tell A.H. what happened, but

was stopped by the police.




                                               4
      The jury found Dykes guilty. Dykes moved for judgment of acquittal and a new

trial. The district court denied the motions and sentenced Dykes to 172 months in prison.

Dykes appeals.

                                    DECISION

      Dykes argues that the prosecutor engaged in misconduct while cross-examining him

warranting a new trial. Specifically, Dykes argues that his cross-examination “was

saturated with argumentative statements, snide comments, and remarks communicating

disbelief in Dykes’s testimony.” He argues that the prosecutor “intentionally engaged in

an argumentative tactic for cross-examination” that was “designed to inflame the passion

and prejudice of the jury against [Dykes].”

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

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

that courts consider a prosecutor’s closing argument as a whole when determining whether

misconduct occurred); 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). Dykes alleges both

unobjected-to and objected-to misconduct.         Because we review unobjected-to and

objected-to misconduct under different standards, we address each category in turn.

I.    Any objected-to misconduct was harmless.

      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


                                              5
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. The fact that an objection is sustained is not by itself evidence of prosecutorial

misconduct. State v. Steward, 645 N.W.2d 115, 122 (Minn. 2002).

       Defense counsel objected to four of the prosecutor’s lines of inquiry. First, after

asking why Dykes and A.P. had sexual intercourse in the bathroom, rather than the nearby

bedroom, the prosecutor commented, “I guess when you’ve got this romantic setting, who

would want to go into a bedroom.” The prosecutor immediately withdrew the statement.

       Second, while inquiring about how Dykes and A.P. initially started spending time

together, the prosecutor began a question with “Wait. All right. I definitely get the sense

that from what you’re saying you’ve got this way with the ladies but—.” The district court

sustained defense counsel’s objection.        Third, defense counsel objected when the

prosecutor referred to a screwdriver found in Dykes’s backpack as a “self-defense

weapon.” The district court sustained the objection on the ground that the question

mischaracterized the evidence.

       Finally, at the conclusion of cross-examination, Dykes explained why his version

of events had changed over time. He said he was nervous on the date of the offense because

the police were pointing a gun at him, and he was just trying to please them. And he

explained that his account changed because he had time to think while he was sitting in

jail. The prosecutor concluded by stating, “I do have to admit you thought on it and you

came up with something better. I have no further questions.” Defense counsel moved to




                                              6
strike the comment as argumentative. The district court agreed, immediately instructing

the jurors to disregard the comment.

       None of these alleged instances of misconduct are unusually serious. And even if

they constitute less serious misconduct, we conclude they did not play a substantial part in

influencing the jury’s verdict. The first three objections relate to issues Dykes or his

counsel raised. During direct examination, defense counsel asked Dykes why he and A.P.

had intercourse in the bathroom. Dykes expressed admiration for women during his direct

testimony, stating that he did not turn down A.P. even though he was dating her best friend

“[b]ecause [he] love[s] women.” And he testified on direct that he kept the screwdriver in

his backpack for safety reasons.          Because the objected-to questions and comments

concerned evidence Dykes presented, any misconduct is not likely to have played a

substantial role in the jury’s verdict.

       Moreover, the district court timely addressed each objection.        And the court

immediately instructed the jury to disregard the prosecutor’s final statement. See State v.

Ferguson, 581 N.W.2d 824, 833 (Minn. 1998) (stating that we assume the jury follows a

district court’s instructions). Finally, Dykes’s allegations of misconduct do not overcome

the strength of the evidence, as discussed below. In sum, Dykes is not entitled to a new

trial based on objected-to prosecutorial misconduct.

II.    Unobjected-to misconduct did not affect Dykes’s substantial rights.

       Dykes asserts that the prosecutor made many argumentative and demeaning remarks

during cross-examination that, when taken as a whole, deprived him of a fair trial. For

example, Dykes argues that it was inappropriate for the prosecutor to preface questions


                                                7
with the statements “let me understand this” and “let me get this straight.” And he

challenges the prosecutor’s response to several of his answers with comments such as

“wow” and “convenient.”

         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). “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). The focus of our analysis is the third

prong, in which the state bears the burden of proving that any misconduct did not affect

the defendant’s substantial rights. Id. 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. State v. Hill, 801 N.W.2d 646, 654-55 (Minn.

2011).

         As to the first factor, our review of the record shows that the case against Dykes was

strong. While Dykes is correct that the case essentially boiled down to which version of

events the jury believed, his account was marred by changing stories and inconsistent

statements. See State v. Jones, 753 N.W.2d 677, 693 (Minn. 2008) (stating the defendant’s

credibility was “seriously undermined” by the inconsistent statements he made to the

police). During his custodial interview, Dykes stated that he and A.P. had never been

alone, and that on the date in question they engaged in consensual intercourse almost

immediately after he arrived at the residence. He also said that A.P. was wearing pants


                                               8
when he got to her house and that she did not kiss him at any point. At trial, Dykes testified

that he and A.P. had been alone on three prior occasions, and that on the date in question

they ate breakfast and watched television together before their sexual encounter. He also

testified that she was not wearing pants at any point and kissed him during the encounter.

In contrast, A.P.’s account of the incident was generally consistent throughout her

interactions with the police, the sexual-assault examination, and her trial testimony. And

her testimony was corroborated by other witnesses and the physical evidence of forceful

penetration.

       With respect to the pervasiveness factor, Dykes argues that the cross-examination

was “saturated” with conduct and comments attempting to convey the prosecutor’s

disbelief in Dykes’s testimony. We are not convinced that any misconduct was pervasive.

We first note that the allegations of misconduct are limited to the prosecutor’s cross-

examination of Dykes; there is no claim of misconduct during opening statements, closing

arguments, or the examination of other witnesses. We next observe that a prosecutor is not

required to be impartial, particularly when cross-examining a defense witness.              A

prosecutor “may strike hard blows, [but] he is not at liberty to strike foul ones.” State v.

Jones, 277 Minn. 174, 188, 152 N.W.2d 67, 78 (1967) (quoting Berger v. United States,

295 U.S. 78, 88, 55 S. Ct. 629, 633 (1935)). Courts allow a wide range of inquiry on cross-

examination, particularly when “there is a sharp conflict in the evidence . . . [and] the

credibility of the defendant and complainant are critical.” State v. McDaniel, 534 N.W.2d

290, 293 (Minn. App. 1995), review denied (Minn. Sept. 20, 1995). Such is the case here.

The prosecutor was entitled to and did vigorously cross-examine Dykes. It was not


                                              9
improper to press Dykes on the myriad inconsistencies in his various accounts to law

enforcement and his long and detailed trial testimony. See id. (noting “[t]he prosecutor is

allowed to explore discrepancies in testimony”). Given the centrality of the credibility

issue, the prosecutor acted properly within his role by attempting to discredit Dykes’s

testimony.

       We agree with Dykes that it was improper for the prosecutor to respond to three of

Dykes’s answers with the word “wow.” While it is possible that, as the state argues, the

comment was a reflexive verbal tic, it simply has no place in cross-examination. But the

prosecutor said “wow” three times during a 59-page cross-examination. We are not

persuaded that these isolated comments were sufficiently pervasive to taint the otherwise

proper cross-examination.

       Finally, we are persuaded that Dykes had the opportunity, or made efforts, to rebut

the prosecutor’s challenged suggestions. Hill, 801 N.W.2d at 654-55. To the extent Dykes

argues that the prosecutor was implicitly trying to communicate to the jury that his story

was not credible, he had the opportunity to explain his version of events and why his

accounts had changed over time. His own attorney questioned him extensively on the

discrepancies in his accounts of the incident. During both direct and cross-examination,

Dykes explained that he initially lied to the police because he was nervous, but decided to

tell the truth after he realized that lying was not making the situation better. Defense

counsel also responded during closing argument, asserting that Dykes had told the true

story for the first time during his direct testimony, and that “[the prosecutor] couldn’t shake

[Dykes], couldn’t get him upset, couldn’t catch any inconsistencies.” Not only did defense


                                              10
counsel rebut the prosecutor’s allegedly improper cross-examination, he actually used it to

argue that Dykes’s trial testimony was credible.

       On this record, we conclude that unobjected-to misconduct did not affect Dykes’s

substantial rights and that he is not entitled to a new trial.

       Affirmed.




                                               11
