                        This opinion will be unpublished and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
                                   A13-1263

                                 State of Minnesota,
                                    Respondent,

                                          vs.

                                  Jimmy Lee Morris,
                                     Appellant.

                                 Filed July 21, 2014
                                      Affirmed
                                     Kirk, Judge

                            St. Louis County District Court
                             File No. 69DU-CR-12-1751


Lori Swanson, Attorney General, James B. Early, Assistant Attorney General, St. Paul,
Minnesota; and

Mark S. Rubin, St. Louis County Attorney, Duluth, Minnesota (for respondent)

William M. Ward, Hennepin County Chief Public Defender, Paul J. Maravigli, Assistant
Public Defender, Minneapolis, Minnesota (for appellant)


      Considered and decided by Kirk, Presiding Judge; Hooten, Judge; and Willis,

Judge.




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                        UNPUBLISHED OPINION

KIRK, Judge

      On appeal from his convictions of aiding and abetting first-degree criminal sexual

conduct, appellant argues that the district court erred by admitting evidence gathered

during an un-Mirandized police interview and that the prosecutor committed prejudicial

misconduct warranting a new trial. We affirm.

                                        FACTS

      During the early morning hours of March 19, 2011, a border-patrol agent saw six

men standing around a silver Chrysler Concorde near an apartment building at Fourth

Street and Seventh Avenue East in Duluth and took note of the vehicle’s Wisconsin

license-plate number. From a distance, the agent watched one of the men carry an

incapacitated woman from the car toward the building, return to the car, and leave with

two other men. Shortly thereafter, the agent encountered Officer Nathaniel Hughes of the

Duluth Police Department, told Officer Hughes what he had seen, and provided

descriptions of the woman and the car. Officer Hughes then responded to a report of a

woman lying in an alley behind 625 East Fourth Street and found S.A., extremely

intoxicated, with numerous cuts, scrapes, and bruises. S.A. matched the border-patrol

agent’s description of the woman who had been carried from the car. An ambulance took

S.A. to a hospital, where she told officers she had been sexually assaulted by a group of

men and underwent a sexual-assault examination.

      At about 1:30 a.m. the next day, Officer Hughes saw the silver Chrysler

approaching a freeway entrance ramp in the same area.         He followed the car and


                                           2
conducted a traffic stop on the freeway. Officer Hughes approached the car, told the

driver that the car had been seen in the vicinity of a rape the night before, and stated that

he wanted to know if the occupants had seen anything or were potentially involved. The

driver identified himself as appellant Jimmy Lee Morris and admitted that he did not have

a valid driver’s license. Officer Hughes verified appellant’s identity and found that his

license was suspended. As appellant sat in the driver’s seat of the Chrysler, Officer

Hughes asked him if he was in Duluth the previous night—appellant said he was—and

whether he had loaned the car to anyone—appellant said he had not.

       After receiving word from his sergeant that the Chrysler would be towed, Officer

Hughes asked appellant if he would be willing to sit in the back seat of Hughes’s squad

car. Appellant agreed, and Officer Hughes put him in the back seat. Officer Hughes

gave appellant a ticket for driving after suspension, but did not search him or handcuff

him. He also did not give appellant a Miranda warning. Officer Hughes told appellant

that he was not under arrest, and was free to go, but said he had some additional

questions about where the Chrysler had been the night before. Appellant agreed to

answer the questions.

       In response to Officer Hughes’s questions, appellant said that on the previous

night he and a friend were in the Chrysler when they encountered a group of men with a

woman and stopped to talk with them, then left the area. Officer Hughes asked appellant

if he would be willing to provide a DNA sample. Appellant said he would and that he

had no reason not to because his DNA would not match anything. Appellant also agreed

to ride with Officer Hughes and point out a few relevant locations. Appellant directed


                                             3
Officer Hughes to at least two locations: the friend’s house and the place where they had

seen the group of men with the woman. Officer Hughes then drove to the police-

department parking lot and continued the conversation. When they had finished their

conversation, Officer Hughes drove appellant to his home in Superior, Wisconsin, and

dropped him off there.

       At the time appellant initially agreed to answer Officer Hughes’s questions,

Hughes’s squad car was parked on the side of the freeway, and appellant was sitting in

the back seat. Officer Hughes later testified that if appellant had declined to speak with

him at the outset, he would not have let appellant out of the car because it is illegal and

unsafe to walk on the side of the freeway, and he would not have let appellant return to

the Chrysler because his license was suspended. Instead, he would have told appellant

that he could call for a ride or would have given him a ride to a safe place. But appellant

did not call for a ride or ask to do so, and Officer Hughes did not inform him of that

option. During the interview, as they drove to the locations appellant had identified,

appellant never asked to get out of the car. Officer Hughes testified that if appellant had

done so, he would have let him out near a gas station or the friend’s house because those

would be safe places to walk.

       Police later linked DNA evidence recovered during the sexual-assault examination

of S.A. to appellant, and in May 2012, respondent State of Minnesota charged him with

first-degree criminal sexual conduct, in violation of Minn. Stat. § 609.342, subd. 1(f)(1).

The state amended the complaint in February 2013, adding count two: aiding and abetting

first-degree criminal sexual conduct, in violation of Minn. Stat. § 609.342, subd. 1(e)(i)


                                            4
(use of force), and count three: aiding and abetting first-degree criminal sexual conduct,

in violation of Minn. Stat. § 609.342, subd. 1(e)(ii) (impaired, incapacitated, or helpless

victim).

       At a contested omnibus hearing, appellant moved to suppress information gathered

during the un-Mirandized interview. The district court denied the motion, finding that

the interview “was not a custodial interview and was not subject to Miranda.” After a

five-day jury trial in February 2013, the jury deadlocked on count one, and the district

court declared a mistrial as to that count. The jury returned guilty verdicts on counts two

and three. The district court accepted the guilty verdicts, adjudicated guilt on both,

sentenced appellant to 173 months for count two, and imposed no sentence for count

three. This appeal follows.

                                     DECISION

I.     Appellant was not in custody during the interview.

       “The issue of whether a suspect is ‘in custody’ and therefore entitled to a Miranda

warning ‘presents a mixed question of law and fact qualifying for independent review.’”

State v. Sterling, 834 N.W.2d 162, 167 (Minn. 2013) (quoting Thompson v. Keohane, 516

U.S. 99, 102, 116 S. Ct. 457, 460 (1995)). We review the district court’s “findings of

historical fact relating to the circumstances of the interrogation” for clear error, but we

“make[] an independent review of the [district] court[’]s determination regarding custody

and the need for a Miranda warning.” Id. at 167–68 (quotation omitted). Because the

facts of this case are not disputed, the task before us is to independently apply the law to




                                             5
the facts to decide whether the district court erred by ruling that appellant was not in

custody at the time of the interview.

       The United States Constitution and the Minnesota Constitution both provide that

“[n]o person” shall “be compelled in any criminal case to be a witness against himself.”

U.S. Const. amend V; Minn. Const. art. 1, § 7. In Miranda v. Arizona, the United States

Supreme Court held that the constitutional protection against self-incrimination attaches

when a defendant is subjected to “custodial interrogation,” meaning “questioning

initiated by law enforcement officers after a person has been taken into custody or

otherwise deprived of his freedom of action in any significant way.” 384 U.S. 436, 444,

86 S. Ct. 1602, 1612 (1966). “Subsequent [United States Supreme Court] decisions have

narrowed this language.” State v. Rosse, 478 N.W.2d 482, 484 (Minn. 1991). In Rosse,

the Minnesota Supreme Court expressly adopted a narrower custody test than that stated

by the United States Supreme Court. Id. (citing Berkemer v McCarty, 468 U.S. 420,

440–441, 104 S. Ct. 3138, 3150–51 (1984)). “[That] test is whether a reasonable person

under the circumstances would believe that he or she was in police custody of the degree

associated with formal arrest. The test is not whether a reasonable person would believe

he or she was not free to leave.” State v. Champion, 533 N.W.2d 40, 43 (Minn. 1995)

(citation omitted). In the 19 years since its Champion decision, the supreme court has

restated and applied the narrower custody test many times. See, e.g., Sterling, 834

N.W.2d at 168; State v. Scruggs, 822 N.W.2d 631, 637 (Minn. 2012); State v. Thompson,

788 N.W.2d 485, 491 (Minn. 2010).




                                           6
          When no formal arrest has occurred, we “examine all of the surrounding

circumstances” to determine whether a person was in custody. State v. Flowers, 788

N.W.2d 120, 129 (Minn. 2010).           The supreme court summarized factors indicating

custody and lack of custody, in State v. Staats, 658 N.W.2d 207, 211–12 (Minn. 2003),

and reiterated them in Flowers, 788 N.W.2d at 129. As applicable to the facts of this

case, the factors listed in Staats and Flowers include: (1) the location where the

questioning occurs, such as at a police station, in the individual’s home, or some other

place, and whether the location is a threatening environment; (2) the duration of the

interview; (3) statements made by the officers, including whether they tell the individual

he or she is a suspect, or that he or she is not under arrest; (4) whether the individual

makes an incriminating statement; (5) whether the individual is physically restrained or

actually free to leave at any time; (6) the number of officers present, and whether they

have their weapons drawn; (7) whether the individual is freely permitted to leave at the

end of the interview; and (8) whether the individual is free to make a phone call during

the interview. See Flowers, 788 N.W.2d at 129; Staats, 658 N.W.2d at 211–12. No

single factor is dispositive on its own. Flowers, 788 N.W.2d at 129; Staats, 658 N.W.2d

at 211.

          A.    Location and environment

          Interrogation in a police station tends to indicate custody, and interrogation at a

person’s home tends to indicate a lack of custody. Flowers, 788 N.W.2d at 129; Staats,

658 N.W.2d at 211–12. If those two environments are regarded as the opposite ends of a

continuum, the back seat of a squad car falls closer to the police-station end of that


                                               7
continuum. But the supreme court has held that the fact that questioning occurs while the

subject is in the back seat of a patrol car does not necessarily make an interrogation

custodial. State v. Herem, 384 N.W.2d 880, 883 (Minn. 1986). And interrogations that

occurred inside law-enforcement facilities have also been found non-custodial. E.g.,

State v. Marhoun, 323 N.W.2d 729, 731 (Minn. 1982) (holding that statements given at a

police station and at the Bureau of Criminal Apprehension were not custodial when

defendant went to those locations voluntarily and was informed that he was free to leave).

Appellant has not argued that the location was a threatening environment, and the record

includes no evidence to that effect. While it would be natural for a person in appellant’s

circumstances to be concerned about the implications of talking with a police officer, the

fact that appellant voluntarily got into the squad car suggests he was not overawed by

what the United States Supreme Court has called “the aura of authority surrounding an

armed, uniformed officer.” Berkemer, 468 U.S. at 438, 104 S. Ct. at 3149. Considering

all these facts, we conclude that location and environment weigh marginally against the

district court’s ruling that appellant was not in custody.

       B.   Duration

       Officer Hughes testified that he stopped appellant at about 1:30 a.m., but he did

not indicate what time appellant got into his squad car, what time he dropped appellant

off at his home, or how long they were in the car together. The district court made no

finding about the duration of the encounter. In State v. Seekon, we upheld the district

court’s determination that a Miranda warning should have been given when a truck was

stopped as part of a felony investigation and the passenger was questioned in the back of


                                              8
a squad car, even though the duration of the encounter was only about 15 minutes. 392

N.W.2d 624, 625, 627 (Minn. App. 1986), review denied (Minn. Oct. 17, 1986).

Although the facts in the record provide scant basis for review, we conclude that duration

also weighs marginally against the district court’s decision.

       C.     Statements made by police

       Officer Hughes told appellant at the outset that he was free to go and that he was

not under arrest. The state argues that we should weigh this factor more heavily than

others because the Eighth Circuit appears to have done so. See United States v. Czichray,

378 F.3d 822, 826 (8th Cir. 2004) (identifying such statements as “powerful evidence that

a reasonable person would have understood that he was free to terminate the interview”).

We reject the approach the state suggests because Eighth Circuit cases are not binding on

this court and because we find no authority showing that Minnesota appellate courts have

followed Czichray. Nonetheless, a reasonable person, told by an officer that he is not

under arrest and is free to go, would most likely believe he was not in custody.

Additionally, Officer Hughes did not tell appellant that he was a suspect. We therefore

conclude that this factor weighs in favor of the district court’s ruling.

       D.     Statements made by appellant

       There is some indication in the record, outside of the omnibus testimony, that

appellant told Officer Hughes that he was driving the Chrysler around Duluth on the

night before the sexual assault. This statement may have implicated appellant for driving

after suspension, but appellant made no inculpatory statements about the sexual assault.

To the contrary, he indirectly asserted his innocence by telling Officer Hughes he had no


                                              9
reason to resist a DNA test because his DNA would not match. We conclude that this

factor weighs in favor of the district court’s decision that appellant was not in custody.

       E.     Physical restraints and freedom to leave

       When the interview began, appellant was seated in the back seat of Officer

Hughes’s squad car on the side of the freeway. The district court noted that appellant

could not have opened the squad car’s rear doors from the inside, and Officer Hughes

testified that he would not have let appellant leave at that point because it is unsafe and

illegal to walk along the freeway. These restrictions on appellant’s freedom would weigh

against the district court’s decision except that there were legitimate non-custody reasons

for them, namely, it is unsafe and illegal to walk along the freeway. Those restrictions

apply to everyone, and not only to individuals who are in police custody. And once

Officer Hughes left the freeway, the balance shifted so that this factor weighs in favor of

the district court’s decision. Officer Hughes testified that if appellant had terminated the

interview or asked to get out of the car, he would have dropped appellant off at a safe

location. Under the unique facts of this case, appellant’s inability to leave the scene at

the beginning of the interview was based on safety and legality, not custody. And once

the car was in a safe location, appellant was free to leave, although he did not ask to do

so. We therefore conclude that this factor weighs in favor of the district court’s ruling

that appellant was not in custody during the interview.

       F.     Number of officers and use of weapons

       The reasoning behind these factors seems to be that the presence of multiple

officers or a show of force suggests willingness to use force to keep the subject where he


                                             10
is, which strengthens the inference that the subject is in custody. See Flowers, 788

N.W.2d at 130 (noting that during an interview deemed noncustodial, there were no

officers guarding the door of the interview room); Rosse, 478 N.W.2d at 486 (concluding

interrogation was custodial where subject was not handcuffed, but was seated in a car in

the presence of several officers who had confronted her with guns drawn, and several

other indicia of custody were present). Because Officer Hughes was the only officer

present and never drew his weapon, we conclude that these factors weigh in favor of the

district court’s decision.

       G.     Freedom to leave after the interview

       Appellant was not only free to leave after the interview, but Officer Hughes

actually drove him home.        This factor supports the district court’s conclusion that

appellant was not in custody.

       H.     Freedom to make phone calls

       The record does not indicate whether appellant had a cell phone on his person

during the interview, but Officer Hughes testified that he would not have prevented

appellant from making a phone call. We conclude that the facts are not sufficient for us

to weigh this factor, and we therefore consider it neutral.

       To summarize our independent analysis, location and duration weigh marginally

against the district court’s decision. Officer Hughes’s statements to appellant, appellant’s

statements, and all the other factors weigh in favor of the district court’s decision, except

for freedom to make phone calls, which we consider neutral. We therefore conclude that

the district court did not err by finding that appellant was not in custody during the


                                             11
interview. Because he was not in custody, no Miranda warning was required. We

accordingly affirm the district court’s decision to deny appellant’s suppression motion.

II.    Appellant’s prosecutorial-misconduct claims lack merit.

       Appellant asserts that the prosecutor committed misconduct warranting a new trial

by eliciting vouching testimony and vouching for S.A. during closing argument, and by

accusing appellant of tailoring his testimony to fit what he learned from observing the

testimony of other witnesses.

       Vouching testimony occurs when one witness expresses an opinion about whether

another witness is telling the truth. State v. Ferguson, 581 N.W.2d 824, 835 (Minn.

1998). Elicitation of vouching testimony is a type of attorney misconduct in which an

attorney asks questions that prompt a witness to opine about whether another witness is

telling the truth, often by asking the first witness if the second witness was lying. See

State v. Mayhorn, 720 N.W.2d 776, 788 (Minn. 2006) (acknowledging that there is no

“blanket prohibition” on “were they lying” questions, but holding that under the facts of

the case, the prosecutor committed misconduct by posing such questions); State v. Pilot,

595 N.W.2d 511, 516 (Minn. 1999) (discussing the impropriety of “were they lying”

questions).

       Appellant argues that the prosecutor “committed misconduct” by “elicit[ing]

vouching testimony” and asserts that the prosecutor “delv[ed] into whether two police

officers . . . believed [S.A.] truthfully reported a rape.” We reject this argument because

we conclude that none of the disputed testimony constituted vouching.




                                            12
       The first statements appellant challenges, from the direct examination of Duluth

Police Officer Jacob Peterson, concern the officer’s interactions with S.A. at the hospital.

After Officer Peterson described S.A.’s state of intoxication and how the interview was

frequently interrupted by medical staff, the prosecutor questioned Officer Peterson as

follows:

              Q:      [W]as [S.A.] having trouble tracking and recalling
                      events?
              A:      She was, yes.
              Q:      Was the story—was she able to tell the story in a
                      chronological fashion?
              A:      No.
              Q:      Did she seem uncertain about the things that she was
                      saying?
              A:      Yes.
              Q:      And did some of that seem to be due to her level of
                      intoxication?
              A:      Yes.

       Appellant characterizes this testimony as an elicitation of vouching testimony

because the prosecutor got Officer Peterson “to assert that any uncertainty was due to

intoxication.” We disagree. Officer Peterson did not express an opinion about whether

S.A. was telling the truth or lying. Instead, he expressed an opinion about whether her

state of intoxication affected her ability to tell the story in a clear, chronological fashion.

       The second disputed section of testimony is also from the direct examination of

Officer Peterson. In this testimony, Officer Peterson described S.A.’s graphic statements

and her difficulty answering his questions.

              Q:      Okay. Did—so [S.A.] told you, um, quote, “They
                      made me f--- all of them”; is that true?
              A:      Yes.
              Q:      Um, did she explain that?


                                               13
              A:     She did not. Again, I tried asking follow-up questions
                     and she was unable to—to provide any more answers.
              Q:     Same question about the statement, “They all made me
                     give them blow jobs,” did she explain that at all?
              A:     Ah, she did elaborate, saying that she had provided
                     oral sex to one of the individuals in the alley, and then
                     when we began to talk about the vehicle, she also said
                     that she performed oral sex on one of the individuals in
                     the backseat of the car.
              Q:     Did she tell you or indicate to you whether any of this
                     sexual activity was consensual?
              A:     She did not specifically say, no.
              Q:     Okay. Were you able to tell from any of the context or
                     anything else that she told you?
              A:     Based upon her crying and generally how upset she
                     was, I inferred that it was indeed not consensual.

       Appellant asserts that Officer Peterson’s statement, “I inferred that [the sexual

contact] was indeed not consensual,” constitutes vouching testimony. But that statement

is not an expression of Officer Peterson’s opinion regarding S.A.’s truthfulness or

credibility. Instead, it is a statement of Officer Peterson’s conclusion about the nature of

the sexual contact, based on evidence provided by his own observations and S.A.’s

statements, including her repeated use of the phrase “they made me.” (Emphasis added.)

The prosecutor did not ask whether Officer Peterson thought S.A. was being truthful

when she made those statements, and Officer Peterson did not express an opinion about

her truthfulness.

       The third disputed section of testimony is from the redirect examination of Duluth

Police Investigator Christopher Lofstuen. On direct examination, Investigator Lofstuen

testified that S.A. told him “somebody was forcing her to perform oral sex.” On cross-

examination, defense counsel highlighted the fact that Investigator Lofstuen’s report did



                                            14
not include the word “forced.”        On redirect, the prosecutor elicited Investigator

Lofstuen’s acknowledgement that the word “forced” was not in his report, and this

exchange followed:

              Q:     Okay. Um, is that your recollection that [S.A.] was
                     telling you that this was—encounter was forced?
              A:     If she didn’t say that as a quote, I mean, the—that was
                     the—the gist of the whole—you know, I was—I mean,
                     I was there to investigate a sexual assault so, um, yeah,
                     I couldn’t tell you right now, two years later, if she
                     said that word exactly . . . .
              Q:     The—in any event, the—the scope and the
                     understanding of the conversation is that you were
                     there to investigate a sexual assault?
              A:     Yes.
              Q:     And that would be something that was done against
                     [S.A.]’s will?
              A:     Yes.

       Appellant asserts that the prosecutor elicited vouching testimony by getting

Investigator Lofstuen to testify about the “gist” of S.A.’s story, and his own

“understanding” that sex was forced. This assertion fails for the same reason as the other

two: the witness did not express, and the prosecutor did not ask for, an opinion about

whether S.A. was telling the truth. Instead, Investigator Lofstuen stated a conclusion he

reached based on evidence from S.A.’s statements. On direct examination, Investigator

Lofstuen testified that S.A. told him she had been “sexually assaulted in an alley,” and

“sexually assaulted in a bathroom.” The prosecutor never asked Investigator Lofstuen

for, and he never offered, his opinion about the veracity of those reports.

       Appellant’s second prosecutorial-misconduct claim is that the prosecutor vouched

for S.A.’s credibility during closing argument.       Vouching by counsel occurs when



                                             15
counsel expresses a personal opinion as to a witness’s credibility, or implies a guarantee

of a witness’s truthfulness. State v. Lopez-Rios, 669 N.W.2d 603, 614 (Minn. 2003).

Vouching by counsel is particularly problematic when done by a prosecutor, because the

jury may regard the prosecutor’s opinion as the opinion of the state. See State v. Cole,

240 Minn. 52, 58, 59 N.W.2d 919, 922 (1953) (holding that “it is improper for a

prosecuting attorney in his closing argument, after emphasizing his role as representative

of the state, to offer his own opinion as evidence tending to prove defendant’s guilt”).

But it is not improper for a prosecutor to argue credibility of witnesses, provided that the

argument is based on evidence and the law, and not on the prosecutor’s opinion. E.g.,

State v. Everett, 472 N.W.2d 864, 870 (Minn. 1991) (holding that prosecutor’s closing-

argument comments were not improper when he urged the jury to consider the witness

credible based on his demeanor during his testimony).

       Appellant’s specific argument is that the prosecutor “used a substantial portion of

his [closing argument] rebuttal to tell the jury repeatedly that [S.A.] was credible,”

“repeatedly asserted that [S.A.] would not lie,” and “vouch[ed] for [S.A.] as a credible

person who did not lie.” Appellant does not identify particular statements from the

rebuttal, but apparently objects to the following statement:

                       [Defense counsel] spoke that [S.A.] made a bad
              decision and made a number of bad decisions, getting
              intoxicated, getting involved with her therapist, peripheral
              issues, he says, and the Defense argues that this makes her not
              believable. Doesn’t that make her more believable in a way?
              If she was going to come in here and lie to you, why didn’t
              she make up a better story? If she’s going to come in here
              and lie to you, why didn’t she just tell you, that’s the guy
              sitting right there, I remember him? She didn’t do that[.] She


                                            16
              told you, looks like the profile of the driver but I’m not sure[.]
              If she is so incredible, why didn’t she make up a more graphic
              or gruesome story, like, say, somebody put a gun to my head?
                      Look at all the things she did tell you about herself,
              these things that were quite revealing[.] She did tell you she
              drank too much[.] She relapsed[.] She smoked marijuana
              with her therapist, and she put herself in a vulnerable
              position. She came in here and told that to you all[.] Does
              that sound like someone who’s lying or just laying out the
              facts?

       We reject appellant’s claim because this statement does not reflect the

prosecutor’s opinion of S.A.’s credibility. Instead, it is an argument that the jury should

believe her testimony because it included internal indicia of credibility. We therefore

conclude that the prosecutor did not improperly vouch for S.A.

       Appellant’s final prosecutorial-misconduct claim is that the prosecutor accused

appellant of tailoring his testimony to fit what he learned from hearing the testimony of

other witnesses. He points to a particular portion of the prosecutor’s closing-argument

rebuttal. Appellant did not make a contemporaneous objection.

       Because appellant did not object, we review his claim for plain error. State v.

Davis, 735 N.W.2d 674, 681 (Minn. 2007). Under that standard, “[a]n error is plain if it

is clear or obvious, and usually this is shown if the error contravenes case law, a rule, or a

standard of conduct.” Id. (quotations omitted). Arguments that a defendant tailored his

testimony to fit evidence presented at trial implicates a defendant’s right to be present at

trial, which is protected by the Confrontation Clause of the Sixth Amendment to the

United States Constitution. Id. Minnesota appellate courts have repeatedly held that in

the absence of specific evidence of tailoring, it is misconduct for a prosecutor to argue



                                             17
that tailoring occurred. Davis, 735 N.W.2d at 681–82; State v. Swanson, 707 N.W.2d

645, 657–58 (Minn. 2006); State v. Ferguson, 729 N.W.2d 604, 616–17 (Minn. App.

2007), review denied (Minn. June 19, 2007).

      The challenged section of the rebuttal argument reads as follows:

                    [Defense counsel] also talked about [appellant’s]
             testimony saying that this was a consensual act, but
             remember, he didn’t say that at first[.] When you are
             considering testimony, something important to remember and
             important to think about is, what did he know when he said
             what he said? What did the person know when they said
             what they said?
                    Remember, he made multiple statements to Officer
             Hughes and the quote is, He continually denied any
             involvement other than giving [S.A.] a ride[.] He continually
             denied that his DNA would be matched against any of the
             DNA collected from the sex assault kit[.] What did he know
             when he said what he said? What did he know when he said
             that? Not much[.] His DNA had not been recovered yet[.]
             His DNA had not been analyzed by the crime lab yet[.] His
             DNA had not been matched to the known sample he gave[.]
             What did he know when he said what he said? Didn’t
             happen[.] Wasn’t me[.] Not going to find any evidence[.]
                    Now, his testimony is that, “I told Officer Hughes that
             I had consensual sex with her and of course you’ll find my
             DNA on her[.]” What does he know when he said what he
             said? And does that statement, that idea, even make sense, in
             light of all of the other evidence in the case? We have an
             officer investigating an incident of criminal sexual conduct[.]
             He finds the vehicle the very next day, speaks with a person
             who says, yes, I did have sex with her and you’re going to
             find my DNA, and the officer gives him a ride home[.] What
             did he know when he said what he said? What did he know
             when he said what he said in court? You gotta explain how
             the DNA got there, so now the testimony is that it was
             consensual.

      Appellant’s claim fails because the relevant rule bars tailoring arguments only

when there is no evidence that tailoring actually occurred. Here, there is ample evidence


                                           18
of tailoring.   During the trial, the jury heard testimony from Officer Hughes about

appellant’s statements during the squad-car interview. The prosecutor summarized those

statements in his closing-argument rebuttal and urged the jury to compare them to

appellant’s trial testimony.    The statements appellant made in the squad car were

inconsistent with his trial testimony, providing clear evidence of tailoring. This case is

therefore like Ferguson, in which this court held that because the defendant’s “account of

the events changed significantly as the investigation progressed,” the prosecutor “had

evidence of tailoring and could legitimately point out changes in [the defendant’s] story.”

729 N.W.2d at 617.

       We conclude that because there was clear evidence of tailoring, the prosecutor’s

assertion that appellant tailored his trial testimony did not contravene “case law, a rule, or

a standard of conduct.” See Davis, 735 N.W.2d at 681 (quotation omitted). There was

therefore no plain error and no prosecutorial misconduct.

       Affirmed.




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