This opinion will be unpublished and may not be cited except as provided by Minn.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 A14-0688
State of Minnesota, Respondent,
vs.
Amy Andrea Horsfield, Appellant.
Filed May 18, 2015 Affirmed Chutich, Judge
Hennepin County District Court File No. 27-CR-13-14752
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Susan L. Segal, Minneapolis City Attorney, Jennifer Saunders, Assistant City Attorney, Lisa M. Godon, Assistant City Attorney, Minneapolis, Minnesota (for respondent)
Robert M. Paule, Robert M. Paule, P.A., Minneapolis, Minnesota (for appellant)
Considered and decided by Chutich, Presiding Judge; Rodenberg, Judge; and
Reyes, Judge.
UNPUBLISHED OPINION
CHUTICH, Judge
Appellant Amy Andrea Horsfield challenges the district court’s denial of her
motion for a new trial, arguing that numerous instances of prosecutorial misconduct prejudiced her substantial rights. She further argues that the district court abused its
discretion in allowing the state to re-open its case to present evidence on an element of
her criminal abuse charge and in erroneously instructing the jury. Because the alleged
instances of prosecutorial misconduct did not substantially prejudice her rights, and the
district court properly exercised its discretion in admitting evidence on an element of her
crime and instructing the jury, we affirm.
FACTS
In 2010, Horsfield worked as a program director at the Salvation Army Beacon
Program (Beacon), an inpatient and outpatient chemical dependency program for adults.
In October or November 2010, Horsfield initiated sexually explicit communications with
A.B., an inpatient resident at Beacon, through texts and emails. In November 2010,
Horsfield and A.B. began a sexual relationship. It ended in April 2011, and A.B. left
Beacon later in 2011.
Also in 2011, Horsfield began similar sexual communications with another
Beacon patient, C.G.1 Several Beacon employees suspected that Horsfield had a sexual
relationship with C.G. and reported these suspicions to Beacon’s business director, who
was Horsfield’s direct supervisor and good friend. After a “cursory investigation,” no
significant disciplinary action was taken against Horsfield.
1 Horsfield’s relationship with C.G. was admitted as evidence of another crime, wrong, or bad act. See Minn. R. Evid. 404(b).
2 In February 2012, the business director read letters from C.G. to Horsfield that
contained sexual references. The business director gave the letters to the executive
director, who said that he did not read the letters but merely passed them along to “legal.”
A.B. returned to Beacon in 2012 and in September, a Beacon employee filed an
anonymous report with authorities claiming Horsfield was engaging in a sexual
relationship with A.B. At the time, Horsfield and A.B. did not have a sexual relationship.
The Minnesota Department of Human Services and A.B.’s parole officer investigated the
claim, and when A.B.’s parole officer questioned him, he confirmed his past sexual
relationship with Horsfield.
The parole officer contacted Sergeant Martinson at the Minneapolis Police
Department to report what A.B. had told her. Sergeant Martinson took a statement from
A.B. Sergeant Martinson then corroborated A.B.’s statement with hotel receipts
matching the dates that A.B. said he stayed at a hotel with Horsfield and by locating a
pair of underwear on A.B.’s property that A.B. said Horsfield had given him. The
Minnesota Bureau of Criminal Apprehension conducted a DNA analysis of the
underwear, and the results showed that Horsfield “could not be excluded from being a
possible contributor” whereas 96.8% of the general population could be excluded.
On May 3, 2013, Horsfield was charged with gross misdemeanor criminal abuse.
See Minn. Stat. § 609.2325, subd. 1(b) (2012) (caregiver to vulnerable adult). In June
2013, while the charges against her were pending, Horsfield began corresponding with
C.G.’s brother, J.G., an inmate at the Lino Lakes correctional facility. Sergeant
Martinson and an investigator at the department of corrections were concerned that
3 Horsfield was using J.G. for witness tampering and began to monitor the communications
between Horsfield and J.G. No witness tampering was discovered, but police seized
several letters of a graphic, sexual nature from J.G.’s prison cell that Horsfield had
written him. The sexual phrases in these letters matched the phrases A.B. claimed
Horsfield used to initiate a sexual relationship with him. The letters also referenced
Horsfield’s previous sexual relationship with C.G.
On February 10, 2014, Horsfield’s jury trial began, and it lasted over a week.
After deliberating for approximately one hour, the jury found Horsfield guilty of criminal
abuse.
Horsfield moved for a new trial, arguing that her substantial rights were prejudiced
by numerous instances of prosecutorial misconduct. Horsfield further argued that the
district court abused its discretion in allowing the state to reopen its case to present
evidence on an essential element of the charge. She claimed, in addition, that the district
court erroneously defined an element of her charge in the jury instructions. The district
court denied Horsfield’s motion. Horsfield appealed.
DECISION
I. Prosecutorial Misconduct
Horsfield argues that the prosecutor engaged in several instances of prosecutorial
misconduct at trial, including improperly eliciting vouching testimony, implying through
questioning that Horsfield had tampered with witnesses, implying through questioning
that Horsfield had a sexual relationship with Beacon’s executive director, and
impermissibly vouching for A.B.’s credibility in closing arguments. After carefully
4 reviewing each alleged episode of misconduct, we conclude that none of the alleged
behavior, either separately or cumulatively, affected the jury’s verdict.
Horsfield’s objected-to claims of prosecutorial misconduct are examined first. For
objected-to prosecutorial misconduct, this court applies a two-tiered harmless-error test,
“the application of which varies based on the severity of the misconduct.” 2 State v.
McDaniel, 777 N.W.2d 739, 749 (Minn. 2010) ( quotation omitted). Serious misconduct
is “harmless beyond a reasonable doubt if the verdict rendered was surely unattributable
to the error,” while less serious misconduct is harmless unless “the misconduct likely
played a substantial part in influencing the jury to convict.” State v. Powers, 654 N.W.2d
667, 678 (Minn. 2003) (quotation omitted).
Vouching Testimony
A prosecutor must not intentionally elicit vouching testimony at trial. Van Buren
v. State, 556 N.W.2d 548, 551 (Minn. 1996). Whether a witness is credible is a question
for the jury to decide. State v. Ferguson, 581 N.W.2d 824, 835 (Minn. 1998). “[O]ne
witness cannot vouch for or against the credibility of another witness.” Id.
Horsfield argues that the prosecutor elicited improper vouching testimony three
separate times—twice in the examination of A.B.’s parole officer and once in the
examination of Sergeant Martinson.
During the direct examination of the parole officer, the prosecutor asked, “Did you
believe him[?]” in reference to whether the parole officer believed A.B.’s confession
2 The supreme court has questioned the viability of this two-tiered test but has not yet overruled it. McDaniel, 777 N.W.2d at 749; State v. Tayari-Garrett, 841 N.W.2d 644, 651 (Minn. App. 2014), review denied (Minn. Mar. 26, 2014).
5 regarding his sexual relationship with Horsfield. The prosecutor also asked, “Was there
anything about the events that [A.B.] recounted to you or your knowledge of him or your
knowledge of [Horsfield] that led you to give credence to [A.B.]’s claims?” Horsfield
objected to both of these questions before the parole officer could answer, and the district
court sustained the objections.
Here, the prosecutor asked whether the parole officer “believed” A.B. or gave
credence to his claims. These questions were attempts to elicit improper vouching
testimony, and it was misconduct for the prosecutor to ask them. See Ferguson, 581
N.W.2d at 835. But even when we apply the more serious harmless-error test, any
resulting error was harmless: these two questions were posed within the context of a
week-long trial, Horsfield objected to both of them, and most importantly, the district
court sustained the objections before the witness answered. Accordingly, Horsfield’s
guilty verdict was “surely unattributable to the error[s].” Powers, 654 N.W.2d at 678
(quotation omitted).
The third alleged instance of vouching occurred on redirect of Sergeant Martinson
when the prosecutor asked, “When you spoke with [A.B.] on any of the occasions that
you talked to him, was it your impression that [he] was in this for money?” Horsfield
objected, and the district court sustained the objection and directed the prosecutor to
rephrase. The prosecutor then asked, “Did [A.B.] ever talk about money with you, that
he was after a certain amount of money or anything?” Horsfield did not object to this
rephrased question.
6 Here, the prosecutor’s question to Sergeant Martinson was meant to ascertain
A.B.’s potential bias. And Horsfield opened the door to this line of questioning when she
implied that A.B. had monetary motives based on a civil lawsuit that he had filed. See
State v. Bailey, 732 N.W.2d 612, 622 (Minn. 2007). Because the prosecutor’s question
was meant to refute Horsfield’s insinuation that A.B. was biased, it was not misconduct.
Witness Tampering Testimony
Horsfield next argues that the prosecutor impermissibly elicited testimony from
two witnesses that Horsfield had been investigated for witness tampering. Horsfield
contends that this line of questioning was misconduct because the prosecutor had no
good-faith basis for asking the questions and did not request the direction or permission
of the district court to elicit the testimony.
During trial, the following exchange occurred between the prosecutor and the
department of corrections investigator:
Q. All right. Did you monitor the substance of the conversations between [Horsfield] and [J.G.]? A. Yes. Q. Why did you do that? A. I was actually concerned about witness tampering because we knew there was a case that had been filed by [A.B.] and that Amy Horsfield was on the other side of that case. So we were concerned that -- I was concerned that there may be some witness tampering.
Horsfield objected, and the district court sustained the objection and said, “Members of
the Jury, I just want to strike the witness’[s] answer about a concern on the witness
tampering. So that is not any evidence in this case. You must disregard that. It is not
any evidence of anything.”
7 During the redirect of Sergeant Martinson, the following exchange occurred
between Sergeant Martinson and the prosecutor:
Q. All right. And once you learned about the fact that [J.G.] was at Lino Lakes, what did you do? A. I had contact with the Department of Corrections, [J.K.], an Investigator with the Department of Corrections. There were concerns that [J.G.] was having a relationship with Amy Horsfield by both telephone and visits, was believed that the possibility that [A.B.] might be either being intimidated or threatened by [J.G.], who was out at the prison with him.
Horsfield objected and the district court struck Sergeant Martinson’s last comment “about
a concern about [A.B.].” At the conclusion of Sergeant Martinson’s testimony, Horsfield
moved for a mistrial based on the two witness tampering statements, which the district
court denied. During the sidebar conference for the mistrial motion, the state offered to
recall the two witnesses to clarify that no actual witness tampering was observed.
Alternatively, the district court proposed a stipulation agreement in which both parties
would state that no evidence showed Horsfield attempted to tamper with witnesses.
Horsfield declined both suggestions, arguing that the prejudice caused by these two
statements could not be undone.
A prosecutor may commit misconduct through seeking to elicit or actually
eliciting inadmissible evidence. State v. Fields, 730 N.W.2d 777, 782 (Minn. 2007).
Here, the prosecutor knew the two witnesses had investigated Horsfield for witness
tampering, but critically Horsfield had not moved in limine to prohibit the state from
8 mentioning witness tampering, and the district court did not instruct the prosecutor to
limit her witnesses’ testimonies on the subject.
Even if we decided that these questions were misconduct, the district court
promptly issued curative instructions after both statements and no prejudicial error
resulted. See State v. McCurry, 770 N.W.2d 553, 558-59 (Minn. App. 2009) (noting that
Minnesota courts presume jurors follow the district court’s curative instructions), review
denied (Minn. Oct. 28, 2009). We also note that Horsfield declined the state’s offer to
recall the witnesses to clarify that no tampering had occurred and the district court’s
proposal for a stipulation agreement to the same effect. We therefore conclude that even
if the prosecutor’s questions were misconduct, no prejudicial error resulted.
Sexual Relationship Question
Horsfield also contends that the prosecutor engaged in misconduct when the
prosecutor asked the executive director if he had ever had a sexual relationship with
Horsfield, to which he immediately replied, “[a]bsolutely not.” Horsfield then objected,
and the district court struck the question and instructed the jury to disregard the
exchange. Horsfield moved for a mistrial, asserting that the prosecutor had no good-faith
basis to ask the executive director if he had a sexual relationship with Horsfield. The
prosecutor responded that a good-faith basis existed because the business director had
given a statement indicating that Horsfield and the executive director had a personal
relationship (although not sexual), another Beacon employee had heard rumors about a
sexual relationship between Horsfield and the executive director, and Horsfield told A.B.
that she had an affair with the executive director.
9 Horsfield argues that the prosecutor’s question was unethical because it was
intended to advance an improper inference to the jury. We disagree because the question
was an appropriate inquiry into the executive director’s potential bias.
“Evidence of bias ‘is almost always relevant because the jury, as finder of fact and
weigher of credibility, has historically been entitled to assess all evidence which might
bear on the accuracy and truth of a witness’[s] testimony.’” State v. Clifton, 701 N.W.2d
793, 797 (Minn. 2005) (quoting United States v. Abel, 469 U.S. 45, 52, 105 S. Ct. 465,
469 (1984)). Bias includes attitudes, feelings, or emotions of a witness that might affect a
witness’s testimony. State v. Lanz-Terry, 535 N.W.2d 635, 640 (Minn. 1995).
Here, the executive director was Horsfield’s superior, and whether he had a sexual
relationship with Horsfield was relevant as to his bias. Horsfield argues that even if the
question was relevant, Minnesota Rule of Evidence 608(b) would have prohibited
admission of any extrinsic evidence to prove otherwise. But Horsfield’s reliance on rule
608 is misplaced because “[i]n contrast to extrinsic evidence bearing on veracity, Rule
608(b) does not bar the use of extrinsic evidence to prove a witness’[s] bias.” State v.
Garceau, 370 N.W.2d 34, 40 (Minn. App. 1985), review denied (Minn. Sept. 13, 1985);
see also Minn. R. Evid. 616. Accordingly, we conclude that the prosecutor’s question
here was not misconduct.
Prosecutor’s Closing Arguments
Horsfield next contends that the prosecutor impermissibly vouched for A.B.’s
credibility in closing arguments. Because Horsfield did not object to these statements in
closing, we review them under a modified plain-error test. See State v. Carridine, 812
10 N.W.2d 130, 146 (Minn. 2012) (citing State v. Ramey, 721 N.W.2d 294, 302 (Minn.
2006)). Horsfield must show “both that the misconduct constitutes error and that the
error was plain.” Id. An error is plain if it “contravenes case law, a rule, or a standard of
conduct.” Ramey, 721 N.W.2d at 302. “The burden then shifts to the State to
demonstrate that the error did not affect the defendant’s substantial rights.” Carridine,
812 N.W.2d at 146.
The first instance of alleged vouching occurred when the prosecutor was arguing
that A.B.’s ongoing civil lawsuit did not affect his credibility. The prosecutor stated,
“His story is consistent, it’s clear, it’s believable.” The remaining instances of alleged
vouching all occurred during the prosecutor’s rebuttal closing argument.
Horsfield’s closing argument, given immediately before the prosecutor’s rebuttal,
stressed that the state had not yet proven Horsfield’s guilt beyond a reasonable doubt and
argued that A.B. was not a credible witness. In response to Horsfield’s contention that
the state had not met its burden of proof, the prosecutor stated, “We submit to you that
we have met that burden in this case. The evidence is strong, it’s clear, and you heard me
recount it. I’m not going to go [through] that again. But we have met that burden. And I
submit to you that that is true.”
The prosecutor next argued that A.B. was credible and that the evidence supported
his version of events when she stated, “Why should you believe him? Because he told
you the truth. It was consistent with the corroborating evidence that came out. The
corroboration supports it. There is plenty of evidence that does. It’s consistent. It has
11 been consistent over time.” The prosecutor continued to defend the credibility of A.B.’s
story when she stated,
If [A.B.] wanted to come in here and lie to you about what happened, wouldn’t he have told you a more interesting story? . . . Why didn’t he say that they had sex the third time? Because he was telling the truth. He didn’t overblow it. He told you the truth . . . That’s why you should believe him.
Lastly, the prosecutor also stated, “This lawsuit and all of this stuff about money . . . who
knows if he is ever going to see a cent . . . But he told you that that was not his motive.
He said he wanted to come clean, and he did. You should believe [A.B.].”
“[I]t is not misconduct for the state to analyze the evidence and argue that
particular witnesses were or were not credible.” State v. Wright, 719 N.W.2d 910, 918–
19 (Minn. 2006); see also State v. Smith, 825 N.W.2d 131, 139 (Minn. App. 2012)
(holding that a prosecutor’s statements that a particular witness was “very sincere” and
“very frank in his testimony” were arguments regarding the witness’s credibility and not
improper vouching), review denied (Minn. Mar. 19, 2013). But see State v. Gail, 713
N.W.2d 851, 866 (Minn. 2006) (stating that vouching occurs if the state implies a
guarantee of a witness’s truthfulness or expresses a personal opinion regarding a
witness’s credibility).
We recognize that these statements, especially when considered in isolation, walk
a fine line between arguing that A.B. was credible and guaranteeing his truthfulness. See
Gail, 713 N.W.2d at 866. But we examine a prosecutor’s closing statement as a whole
because “particular phrases or remarks . . . may be taken out of context or given undue
prominence.” State v. Jackson, 714 N.W.2d 681, 694 (Minn. 2006) (quotation omitted).
12 Here, the prosecutor’s closing argument stressed the believability of A.B.’s story in the
overall framework of discussing how the evidence supported A.B.’s story. And although
the prosecutor emphasized A.B.’s credibility, this emphasis was closely tethered to the
evidence and was offered to rebut Horsfield’s contention that A.B. lacked credibility. See
Wright, 719 N.W.2d at 918-19. We therefore conclude that Horsfield cannot show error
here.
Cumulative Effects of Misconduct
Horsfield contends that even if she is not entitled to a mistrial based on a single
episode of misconduct, the cumulative effects of prosecutorial misconduct warrant a new
trial. We are not persuaded.
To warrant reversal for a new trial, the prosecutor’s misconduct—placed into the
context of the entire trial—must be so serious and prejudicial that it impairs a person’s
constitutional right to a fair trial. State v. Johnson, 616 N.W.2d 720, 727-28 (Minn.
2000).
Horsfield analogizes her situation to cases where the supreme court has granted a
new trial based on the cumulative effects of prosecutorial misconduct. The misconduct
here, however, was considerably less pervasive and prejudicial than the conduct in the
cases that Horsfield cites. See State v. Mayhorn, 720 N.W.2d 776, 791 (Minn. 2006)
(noting that at least 20 pages of the prosecutor’s 80-page cross examination showed
prosecutorial misconduct); State v. Porter, 526 N.W.2d 359, 363-66 (Minn. 1995)
(stating that several inappropriate remarks by the prosecutor in his closing warranted a
new trial, including suggesting that no salve exists for the conscience of the jury
13 members should they acquit and referring seven times to “[defendant’s] School of Sex
Education” in closing, although this title was not based on any evidence or any
reasonable inference from the evidence); State v. Harris, 521 N.W.2d 348, 352 (Minn.
1994) (concluding that prosecutor’s examination of three witnesses improperly implied
that the defendant caused them all to enter witness protection).
The two isolated instances of misconduct here—considered in the context of a
week-long trial and the salutary effect of the district court’s rulings—were not similar in
frequency or severity to the cumulative misconduct in Mayhorn, Porter, or Harris. And
while “the strongest evidence of guilt does not eliminate a defendant’s right to a fair
trial,” Mayhorn, 720 N.W.2d at 791, we note that the evidence against Horsfield,
including persuasive physical evidence, was strong. The constitution guarantees a fair
trial, not an error-free trial. Id. at 792. Because the instances of misconduct were
isolated and not prejudicial, Horsfield received a fair trial.
II. Reopening of Case to Prove Essential Element
Horsfield argues that the district court abused its discretion when it allowed the
state to reopen its case and present evidence that Beacon was a licensed facility—an
element of Horsfield’s criminal abuse charge. This court reviews for an abuse of
discretion the district court’s granting of a party’s request to reopen its case after the
party has rested. State v. Caine, 746 N.W.2d 339, 352-53 (Minn. 2008).
Minnesota Rule of Criminal Procedure 26.03, subdivision 12(g) permits the
district court to allow either party to reopen its case to offer additional evidence in the
14 interests of justice. To “rest” is defined as, “to voluntarily conclude presenting evidence
in a trial.” Black’s Law Dictionary 1427 (9th ed. 2009).
The district court, in an abundance of caution, treated the state’s offer of proof as a
motion to reopen. It did so to avoid penalizing Horsfield for alerting the district court to
the state’s purported failure to prove that element. But the record shows that when the
state offered proof that Beacon was a licensed facility, it had not yet rested.
Consequently, nothing prohibited the state from offering additional evidence on this
issue.
III. Jury Instructions on Facility
Horsfield finally contends that the district court’s instruction regarding the
definition of facility, an element of the crime, materially misstated the law and intruded
into the province of the jury. This contention lacks merit.
The district court has broad discretion in determining jury instructions, and this
court will not reverse in the absence of an abuse of discretion. Hilligoss v. Cargill, Inc.,
649 N.W.2d 142, 147 (Minn. 2002). It is error for an instruction to materially misstate
the law. State v. Kuhnau, 622 N.W.2d 552, 556 (Minn. 2001). Instead, jury instructions
must define the crime charged and explain the elements of the offense rather than simply
restating the statutes. State v. Ihle, 640 N.W.2d 910, 916 (Minn. 2002). A new trial is
only required if the jury instructions were erroneous and the resulting error was
prejudicial or if the effect cannot be determined. Morlock v. St. Paul Guardian Ins. Co.,
650 N.W.2d 154, 159 (Minn. 2002).
15 The district court’s instructions to the jury defined facility as, “an entity required
to be licensed by the Minnesota Department of Human Services. It includes a residential
or nonresidential program that provides chemical dependency services to adults.” Before
the instructions were read to the jury, Horsfield objected to the definition of facility,
arguing that the statutory definition of facility did not include a chemical dependency
program. The district court overruled the objection and concluded as a matter of law that
the words “care,” “supervision,” “rehabilitation,” and “habilitation” used within the
definitions of “residential” and “nonresidential” properly encompassed chemical
dependency services.
Horsfield’s conviction of gross misdemeanor criminal abuse requires the
defendant to be a “caregiver” providing services “in a facility.” Minn. Stat. § 609.2325,
subd. 1(b). “Facility” is defined as “a residential or nonresidential facility required to be
licensed to serve adults under sections 245A.01 to 245A.16.” Minn. Stat. § 609.232,
subd. 3 (2012).
Under section 245A.02, subdivision 14 (2012), a residential program3 is a “24-
hour-a-day care, supervision, food, lodging, rehabilitation, training, education,
habilitation, or treatment outside a person’s own home including . . . chemical abuse
programs that are located in a hospital or nursing home and receive public funds . . . .” A
nonresidential program provides “care, supervision, rehabilitation, training or habilitation
3 As Horsfield notes in her brief, section 609.2325, subd. 1(b) references a residential or nonresidential facility as defined in sections 245A.01 to 245A.16, but sections 245A.01 to 245A.16 define residential and nonresidential programs. This discrepancy, however, is minor and does not render the statutory definition of facility ambiguous.
16 of a person provided outside the person’s own home and provided for fewer than 24
hours a day, including adult care programs; and chemical dependency or chemical abuse
programs that are located in a nursing home or hospital and receive public funds . . . .”
Minn. Stat. § 245A.02, subd. 10 (2012).
Here, the district court surmised that a chemical dependency program, like
Beacon, fell within the statutory definition of facility because Beacon provides care,
supervision, and rehabilitation to persons dealing with chemical dependency issues. The
district court’s instruction was not a material misstatement of the law; rather, it accurately
reflected the statutory definition of facility and reduced a cumbersome statutory scheme
into an easily understood instruction. Because the district court has broad discretion in
crafting jury instructions, and it properly exercised this discretion here, Horsfield’s
argument fails.
Affirmed.