                         This opinion will be unpublished and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
                                    A15-0807

                                  State of Minnesota,
                                      Respondent,

                                          vs.

                                Maxwell Robert Flynn,
                                    Appellant

                                 Filed April 11, 2016
                                      Affirmed
                                    Worke, Judge

                             Olmsted County District Court
                                File No. 55-CR-13-678

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

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

Cathryn M. Middlebrook, Chief Appellate Public Defender, Michael W. Kunkel,
Assistant Public Defender, St. Paul, Minnesota (for appellant)

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

Johnson, Judge.

                        UNPUBLISHED OPINION

WORKE, Judge

      Appellant challenges his criminal-sexual-conduct conviction, arguing that the

prosecutor improperly vouched for the truthfulness of the victim’s testimony. We affirm.
                                      DECISION

       A jury found appellant Maxwell Robert Flynn guilty of third- and fourth-degree

criminal sexual conduct—sexual penetration and sexual contact with a complainant who

is mentally impaired, mentally incapacitated, or physically helpless. See Minn. Stat.

§§ 609.344, subd. 1(d), .345 subd. 1(d) (2012). He argues that the prosecutor committed

prejudicial misconduct by vouching for the victim’s testimony in closing argument.

       Flynn did not object to the alleged misconduct. This court reviews unobjected-to

alleged prosecutorial misconduct under a modified plain-error test. State v. Carridine,

812 N.W.2d 130, 146 (Minn. 2012). Three prongs must be satisfied under this test: there

must be error, that is plain, and that affected the defendant’s substantial rights. State v.

Griller, 583 N.W.2d 736, 740 (Minn. 1998). The defendant must establish the first two

prongs of the test before the burden shifts to the state to prove that the error did not affect

the defendant’s substantial rights. Carridine, 812 N.W.2d at 146. If the three prongs are

satisfied, this court assesses “whether it should address the error to ensure fairness and

the integrity of the judicial proceedings.” Griller, 583 N.W.2d at 740.

       A prosecutor has “considerable latitude” in a closing argument. State v. Williams,

586 N.W.2d 123, 127 (Minn. 1998). In analyzing whether a prosecutor committed

misconduct during closing argument, this court considers “the closing argument as a

whole rather than focus[ing] on particular phrases or remarks that may be taken out of

context or given undue prominence.” State v. Jackson, 714 N.W.2d 681, 694 (Minn.

2006) (quotations omitted).       A conviction will be reversed due to prosecutorial

misconduct “only if the misconduct, when considered in light of the whole trial, impaired


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the defendant’s right to a fair trial.” State v. Swanson, 707 N.W.2d 645, 658 (Minn.

2006).

         We must first determine whether the prosecutor’s comment constituted error.

Flynn argues that the prosecutor improperly vouched for the victim’s truthfulness by

making the following statement: “She swore an oath to tell the truth, she was here to

testify about what happened . . . and that’s what she did . . . .”

         “A prosecutor may not personally endorse the credibility of a witness or impliedly

guarantee a witness’s truthfulness.” Jackson, 714 N.W.2d at 696. But a prosecutor may

make arguments about a witness’s credibility. State v. Fields, 730 N.W.2d 777, 785

(Minn. 2007). A prosecutor’s comments that a witness was “very sincere” and “very

frank in his testimony” do not constitute improper vouching. State v. Smith, 825 N.W.2d

131, 139 (Minn. App. 2012), review denied (Minn. Mar. 19, 2013).

         Here, Flynn fails to show error. The prosecutor stated that the victim “swore an

oath to tell the truth.” She took that oath. Then he stated that “she was here to testify

about what happened . . . and that’s what she did.” This is not vouching for the victim’s

truthfulness; instead, it is a statement regarding what happened—the victim gave her

account about what happened. Because Flynn fails on the first prong of the plain-error

test, our analysis concludes here.

         Affirmed.




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