This opinion will be unpublished and may not be cited except as provided by Minn.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 A15-1499
State of Minnesota, Respondent,
vs.
Andrea Deshawn Wilkes, Appellant.
Filed August 15, 2016 Affirmed Bjorkman, Judge
Hennepin County District Court File No. 27-CR-14-29878
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Michael O. Freeman, Hennepin County Attorney, Jean Burdorf, Assistant County Attorney, Minneapolis, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Richard Schmitz, Assistant Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Rodenberg, Presiding Judge; Peterson, Judge; and
Bjorkman, Judge.
UNPUBLISHED OPINION
BJORKMAN, Judge
Appellant challenges his criminal-sexual-conduct conviction, arguing that the
district court abused its discretion by denying his motion for a mistrial and that the prosecutor committed reversible misconduct by eliciting improper testimony and
impermissibly focusing on appellant’s body odor. We affirm.
FACTS
On September 23, 2014, S.M. entered a hospital reporting that she had been
sexually assaulted. A sexual-assault nurse observed that S.M. had injuries in multiple
locations, including the back of her head, arms, hands, and legs. Hospital personnel
contacted law enforcement, who interviewed S.M. at the hospital. S.M. reported that she
was walking on Hennepin Avenue in downtown Minneapolis at approximately 1:00 a.m.
when a man approached her from behind and stuck something “hard and metallic”
against her back. He instructed her to follow him, grabbed her arm, and led her into a
nearby parking lot where he forced her to perform oral sex. S.M. described her assailant
as an African-American male with a scruffy beard and an eye patch, and stated that he
“smelled homeless.” She further reported that he was wearing a white t-shirt and black
shorts that appeared to be either swim trunks or basketball shorts.
The officer who interviewed S.M. later encountered appellant Andrea Deshawn
Wilkes. After reviewing a photographic lineup, S.M. identified Wilkes as the individual
who had sexually assaulted her. Respondent State of Minnesota charged Wilkes with one
count of first-degree criminal sexual conduct (fear of great bodily harm) and one count of
third-degree criminal sexual conduct (use of force or coercion). The complaint was later
amended to add one count of first-degree criminal sexual conduct (use of a dangerous
weapon) and one count of first-degree criminal sexual conduct (use of force or coercion
with injury).
2 S.M.’s trial testimony was generally consistent with her initial account to police.
The sexual-assault nurse and the police officer who interviewed S.M. also testified. Both
indicated that S.M. was visibly upset during the examination and interview. Wilkes
testified in his own defense, stating that on the night in question he met S.M. outside a
bar in downtown Minneapolis. The two began talking and he informed her that he had
some marijuana and asked if she wanted to smoke in a nearby parking area. S.M.
eventually agreed to perform oral sex. Thereafter, S.M. invited him to her house, but he
was unable to accompany her because his bus pass did not have sufficient funds.
The jury found appellant guilty on three of the charges: first-degree criminal
sexual conduct (fear of great bodily harm), first-degree criminal sexual conduct (force or
coercion with injury), and third-degree criminal sexual conduct (force or coercion). The
district court imposed a presumptive sentence on the count of first-degree criminal sexual
conduct (fear of great bodily harm). Wilkes appeals.
DECISION
I. The district court did not abuse its discretion by denying Wilkes’s motion for a mistrial.
A mistrial should be granted only if there is a reasonable probability that the
outcome of the trial would have been different had the incident resulting in the motion
not occurred. State v. Manthey, 711 N.W.2d 498, 506 (Minn. 2006). We review the
denial of a mistrial motion for abuse of discretion. State v. Jorgensen, 660 N.W.2d 127,
133 (Minn. 2003).
3 At trial, the prosecutor asked a police officer, “At some point for DNA purposes a
buccal swab was taken from [Wilkes], right?” The officer answered, “No. A buccal
swab was declined by [Wilkes].” Defense counsel objected. The district court sustained
the objection and instructed the jury to disregard the question and answer. Wilkes argues
the reference was so prejudicial as to deny him a fair trial. We are not persuaded.
“It is a violation of the defendant’s right to due process for a prosecutor to
comment on a defendant’s failure to consent to a warrantless search.” State v. Jones, 753
N.W.2d 677, 687 (Minn. 2008). Accordingly, it was improper for the prosecutor to elicit
testimony regarding Wilkes’s refusal to consent to a buccal swab. Because a
constitutional evidentiary error occurred, Wilkes is entitled to a new trial unless the error
was harmless beyond a reasonable doubt. State v. Larson, 788 N.W.2d 25, 32 (Minn.
2010). In determining whether such an error was harmless beyond a reasonable doubt,
we consider the manner in which the evidence was presented, whether the evidence was
highly persuasive, whether it was used in closing argument, whether the defendant was
able to effectively counter it, and the strength of the evidence against the defendant. Id.
The reference to Wilkes’s refusal to consent to a buccal swab was brief. The
district court immediately sustained the objection and instructed the jury to disregard the
question and answer. See State v. Budreau, 641 N.W.2d 919, 926 (Minn. 2002) (stating
there is a presumption that the jury follows the district court’s instructions). Wilkes’s
refusal to consent to a buccal swab was not mentioned again, and the prosecutor did not
suggest that Wilkes’s refusal was in any way indicative of his guilt. See State v. Hill, 801
N.W.2d 646, 656 (Minn. 2011) (determining a new trial was not required in part because
4 the state did not discuss the defendant’s failure to consent to a DNA test during either
opening or closing statements); Larson, 788 N.W.2d at 33 (concluding a new trial was
not required when the prosecutor did not mention the defendant’s test refusal during
closing arguments or argue it was indicative of guilt). Indeed, Wilkes did not deny
engaging in sexual contact with S.M.—he said it was consensual.
Finally, the case against Wilkes was strong. S.M.’s testimony was consistent with
the accounts she initially gave to the sexual-assault nurse and police officer. The various
injuries S.M. sustained are consistent with forcible, rather than consensual, sexual
contact. And Wilkes agreed that S.M. did not have a reason to lie about what happened.
The jury plainly credited S.M.’s version of events, and we defer to the jury’s credibility
findings. See State v. Myers, 359 N.W.2d 604, 609-10 (stating the credibility of
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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 A15-1499
State of Minnesota, Respondent,
vs.
Andrea Deshawn Wilkes, Appellant.
Filed August 15, 2016 Affirmed Bjorkman, Judge
Hennepin County District Court File No. 27-CR-14-29878
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Michael O. Freeman, Hennepin County Attorney, Jean Burdorf, Assistant County Attorney, Minneapolis, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Richard Schmitz, Assistant Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Rodenberg, Presiding Judge; Peterson, Judge; and
Bjorkman, Judge.
UNPUBLISHED OPINION
BJORKMAN, Judge
Appellant challenges his criminal-sexual-conduct conviction, arguing that the
district court abused its discretion by denying his motion for a mistrial and that the prosecutor committed reversible misconduct by eliciting improper testimony and
impermissibly focusing on appellant’s body odor. We affirm.
FACTS
On September 23, 2014, S.M. entered a hospital reporting that she had been
sexually assaulted. A sexual-assault nurse observed that S.M. had injuries in multiple
locations, including the back of her head, arms, hands, and legs. Hospital personnel
contacted law enforcement, who interviewed S.M. at the hospital. S.M. reported that she
was walking on Hennepin Avenue in downtown Minneapolis at approximately 1:00 a.m.
when a man approached her from behind and stuck something “hard and metallic”
against her back. He instructed her to follow him, grabbed her arm, and led her into a
nearby parking lot where he forced her to perform oral sex. S.M. described her assailant
as an African-American male with a scruffy beard and an eye patch, and stated that he
“smelled homeless.” She further reported that he was wearing a white t-shirt and black
shorts that appeared to be either swim trunks or basketball shorts.
The officer who interviewed S.M. later encountered appellant Andrea Deshawn
Wilkes. After reviewing a photographic lineup, S.M. identified Wilkes as the individual
who had sexually assaulted her. Respondent State of Minnesota charged Wilkes with one
count of first-degree criminal sexual conduct (fear of great bodily harm) and one count of
third-degree criminal sexual conduct (use of force or coercion). The complaint was later
amended to add one count of first-degree criminal sexual conduct (use of a dangerous
weapon) and one count of first-degree criminal sexual conduct (use of force or coercion
with injury).
2 S.M.’s trial testimony was generally consistent with her initial account to police.
The sexual-assault nurse and the police officer who interviewed S.M. also testified. Both
indicated that S.M. was visibly upset during the examination and interview. Wilkes
testified in his own defense, stating that on the night in question he met S.M. outside a
bar in downtown Minneapolis. The two began talking and he informed her that he had
some marijuana and asked if she wanted to smoke in a nearby parking area. S.M.
eventually agreed to perform oral sex. Thereafter, S.M. invited him to her house, but he
was unable to accompany her because his bus pass did not have sufficient funds.
The jury found appellant guilty on three of the charges: first-degree criminal
sexual conduct (fear of great bodily harm), first-degree criminal sexual conduct (force or
coercion with injury), and third-degree criminal sexual conduct (force or coercion). The
district court imposed a presumptive sentence on the count of first-degree criminal sexual
conduct (fear of great bodily harm). Wilkes appeals.
DECISION
I. The district court did not abuse its discretion by denying Wilkes’s motion for a mistrial.
A mistrial should be granted only if there is a reasonable probability that the
outcome of the trial would have been different had the incident resulting in the motion
not occurred. State v. Manthey, 711 N.W.2d 498, 506 (Minn. 2006). We review the
denial of a mistrial motion for abuse of discretion. State v. Jorgensen, 660 N.W.2d 127,
133 (Minn. 2003).
3 At trial, the prosecutor asked a police officer, “At some point for DNA purposes a
buccal swab was taken from [Wilkes], right?” The officer answered, “No. A buccal
swab was declined by [Wilkes].” Defense counsel objected. The district court sustained
the objection and instructed the jury to disregard the question and answer. Wilkes argues
the reference was so prejudicial as to deny him a fair trial. We are not persuaded.
“It is a violation of the defendant’s right to due process for a prosecutor to
comment on a defendant’s failure to consent to a warrantless search.” State v. Jones, 753
N.W.2d 677, 687 (Minn. 2008). Accordingly, it was improper for the prosecutor to elicit
testimony regarding Wilkes’s refusal to consent to a buccal swab. Because a
constitutional evidentiary error occurred, Wilkes is entitled to a new trial unless the error
was harmless beyond a reasonable doubt. State v. Larson, 788 N.W.2d 25, 32 (Minn.
2010). In determining whether such an error was harmless beyond a reasonable doubt,
we consider the manner in which the evidence was presented, whether the evidence was
highly persuasive, whether it was used in closing argument, whether the defendant was
able to effectively counter it, and the strength of the evidence against the defendant. Id.
The reference to Wilkes’s refusal to consent to a buccal swab was brief. The
district court immediately sustained the objection and instructed the jury to disregard the
question and answer. See State v. Budreau, 641 N.W.2d 919, 926 (Minn. 2002) (stating
there is a presumption that the jury follows the district court’s instructions). Wilkes’s
refusal to consent to a buccal swab was not mentioned again, and the prosecutor did not
suggest that Wilkes’s refusal was in any way indicative of his guilt. See State v. Hill, 801
N.W.2d 646, 656 (Minn. 2011) (determining a new trial was not required in part because
4 the state did not discuss the defendant’s failure to consent to a DNA test during either
opening or closing statements); Larson, 788 N.W.2d at 33 (concluding a new trial was
not required when the prosecutor did not mention the defendant’s test refusal during
closing arguments or argue it was indicative of guilt). Indeed, Wilkes did not deny
engaging in sexual contact with S.M.—he said it was consensual.
Finally, the case against Wilkes was strong. S.M.’s testimony was consistent with
the accounts she initially gave to the sexual-assault nurse and police officer. The various
injuries S.M. sustained are consistent with forcible, rather than consensual, sexual
contact. And Wilkes agreed that S.M. did not have a reason to lie about what happened.
The jury plainly credited S.M.’s version of events, and we defer to the jury’s credibility
findings. See State v. Myers, 359 N.W.2d 604, 609-10 (stating the credibility of
witnesses is within the competence of the jury).
On this record, the prosecutor’s brief reference to Wilkes’s refusal to consent to a
buccal swab was harmless beyond a reasonable doubt. Accordingly, the district court did
not abuse its discretion by denying Wilkes’s motion for a mistrial.
II. The prosecutor did not commit prejudicial misconduct.
Wilkes argues that the prosecutor committed reversible misconduct by eliciting
testimony regarding Wilkes’s body odor from S.M., the sexual-assault nurse, and a police
officer, and by commenting on this testimony during opening and closing arguments.
Because Wilkes did not object to the challenged testimony at trial, we consider
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). Error is plain if it “contravenes case law, a
5 rule, or a standard of conduct.” Id. On the third element, the state bears the burden of
proving that the 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. Hill, 801 N.W.2d at 654-55. Even where misconduct occurs, we will
reverse only when the defendant was denied a fair trial. State v. Porter, 526 N.W.2d 359,
365 (Minn. 1995).
Wilkes argues that the references to his body odor were plain error because a
prosecutor may not highlight a defendant’s socioeconomic status. State v. Mayhorn, 720
N.W.2d 776, 789 (Minn. 2006). He contends that testimony about his body odor is
irrelevant and constitutes a thinly veiled character attack based on his socioeconomic
status. We disagree because we are persuaded that the testimony is relevant to his
consent defense.
Relevant evidence is evidence that has “any tendency to make the existence of any
fact that is of consequence to the determination of the action more probable or less
probable than it would be without the evidence.” Minn. R. Evid. 401. Evidence
regarding Wilkes’s body odor meets the rule 401 standard. Wilkes’s trial defense was
premised on his contention that S.M. consented to performing oral sex. S.M.’s various
statements and testimony that she was put off by Wilkes’s strong body odor is highly
probative on the issue of her alleged consent. She reported brushing her teeth to try to get
rid of the smell, and spontaneously told the sexual-assault nurse that she felt like she
6 could still smell him. The police officer’s testimony that he could smell Wilkes from 15-
20 feet away corroborates S.M.’s assertion that his body odor was overwhelming. In
short, evidence of Wilkes’s notable body odor and S.M.’s strong negative reaction to it
does not highlight his socioeconomic status; it is highly probative evidence refuting
Wilkes’s consent defense. See State v. Moore, 493 N.W.2d 606, 609 (Minn. App. 1992)
(noting that the “complainant’s knowledge of a scab or sore on [the defendant’s] penis
greatly diminishes the credibility of [the consent defense]”), review denied (Minn. Feb.
12, 1993).
Wilkes also points to two instances of objected-to misconduct that he argues
warrant reversal. 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 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).
First, Wilkes objected when the prosecutor asked the forensic scientist to describe
the smell of Wilkes’s clothing items that she analyzed. The district court overruled the
relevancy objection. As discussed above, evidence of Wilkes’s body odor is relevant to
whether the sexual contact was consensual. Accordingly, the prosecutor’s question was
not improper. Second, Wilkes objected when the prosecutor elicited testimony about his
7 refusal to consent to a buccal swab. It was improper for the prosecutor to elicit this
testimony. But because we have already concluded that the error was harmless beyond a
reasonable doubt, Wilkes is not entitled to reversal of his convictions on this basis.
Finally, Wilkes asserts various arguments in a pro se supplemental brief. We have
carefully reviewed the arguments and conclude that they lack merit.
Affirmed.