Mario Cianflone, Appellant, vs. Independent School District No. 112, Chaska, Minnesota, Respondent.

may not be cited except as provided by

Minn. Stat § 480 A. 08, subd. 3 (1996)

 STATE OF MINNESOTA

 IN COURT OF APPEALS

  C2-97-1806

State of Minnesota,

Respondent,

vs.

Kou Lor,

Appellant.

  Filed September 8, 1998

 Affirmed

  Lansing, Judge

Stearns County District Court

File No. K69750

Hubert H. Humphrey III, Attorney General, Catherine M. Keane, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent)

Roger Van Heel, Stearns County Attorney, Administration Center, 705 Courthouse, St. Cloud, MN 56303 (for respondent)

John D. Ellenbecker, 101 Seventh Avenue South, St. Cloud, MN 56302-9192 (for appellant)

Considered and decided by Lansing, Presiding Judge, Harten, Judge, and Thoreen, Judge.*

  U N P U B L I S H E D O P I N I O N

 LANSING, Judge

In an appeal from conviction for third degree criminal sexual conduct, Kou Lor raises constitutional and evidentiary challenges to the trial procedures. We conclude that he did not make a prima facie showing of systematic exclusion of Asian-Americans from the jury venire, that the evidence sufficiently supports his conviction, and that neither the evidentiary rulings nor the prosecutor's statements constitutes reversible error. We affirm.

  FACTS

A Stearns County jury found 23-year-old Kou Lor guilty of third degree criminal sexual conduct for having sexual intercourse with 13-year-old S.D. The state presented testimony from six witnesses: S.D., her mother, two juveniles who knew both S.D. and Kou Lor, a probation officer, and a police investigator who took a statement from S.D. The defense presented testimony from two additional witnesses: a second police investigator who interviewed S.D. and a friend of Kou Lor's who also knew S.D.

Before trial, Kou Lor's attorney moved to strike the jury venire, arguing that the panel did not represent a fair cross-section of the community because Asian-Americans were underrepresented. After examining demographic reports and a census printout, the district court denied the motion.

During the trial Kou Lor objected to the introduction of Spreigl evidence of a 1992 conviction for second degree criminal sexual conduct with a 12-year-old girl, objected to the admission of a statement made to a probation officer in connection with that conviction, and objected to the district court's ruling that a videotape of S.D.'s statement to a police investigator would not be admitted. During the state's closing argument, Kou Lor objected to the prosecutor's referring to S.D. as a vulnerable girl in need of protection. After the jury returned a verdict of guilty, Kou Lor moved for a new trial. The district court denied the motion.

Kou Lor appeals and we address, in order, his challenges to (1) the jury venire, (2) the sufficiency of the evidence to support the conviction, (3) the exclusion of S.D.'s taped interview, (4) the admission of Spreigl evidence and a statement made to a probation officer, and (5) statements in the prosecutor's closing argument.

  D E C I S I O N

  I

"The Sixth Amendment requires that the pool from which a jury is drawn reflect a representative cross-section of the community." Hennepin County v. Perry, 561 N.W.2d 889, 895 (Minn. 1997) (citing Taylor v. Louisiana, 419 U.S. 522, 527-28, 95 S. Ct. 692, 696-97 (1975)). But the Sixth Amendment does not guarantee a defendant a jury of a particular racial composition. Id. To establish that the composition of the jury pool infringes constitutional protections, a defendant must first make a prima facie showing that (1) the group allegedly excluded is a "distinctive" group in the community; (2) the group was not fairly represented in the venire; and (3) the underrepresentation resulted from systematic exclusion. State v. Williams, 525 N.W.2d 538, 542 (Minn. 1994) (citing Duren v. Missouri, 439 U.S. 357, 364-67, 99 S. Ct. 664, 668-70 (1979)).

To demonstrate that Asian-Americans were a distinctive group not fairly represented in the venire, Kou Lor introduced two documents: "Stearns County Jury Services Demographic Analysis" and a printout of Stearns County census data entitled "1990 Census of Population and Housing Summary." The documents establish the population of Asian-Americans, but are confusing on representation in the jury pool. Kou Lor's attorney could not definitively interpret the reports as demonstrating underrepresentation and admitted it was possible that Asian-Americans were adequately represented.

The district court found that Asian-Americans are a distinctive group in Stearns County, making up approximately seven-tenths of one percent of the population. The court further found that the percentage of the population was too low to demonstrate absolute disparity but, in any case, any underrepresentation was not caused by systematic exclusion. Stearns County's jury pool is selected from the county's voter registration lists and driver's license records. These procedures comply with Minnesota's Jury Management Rules. See Minn. R. Gen. Pract. 806(b) (county's voter registration and driver's license list must serve as jury source list).

The district court's findings accurately assess the evidence. Kou Lor did not meet the burden of establishing a prima facie case of either underrepresentation or systematic exclusion of Asian-Americans, and the court properly denied the motion to strike the jury panel.

  II

Evidence is sufficient to support a conviction if, given the facts in the record and the legitimate inferences drawn from those facts, a jury could reasonably find that each element of the offense has been proved beyond a reasonable doubt. State v. Robinson, 539 N.W.2d 231, 238 (Minn. 1995). We view the evidence in the light most favorable to the verdict and assume the jury believed the evidence supporting the conviction and disbelieved any contrary evidence. State v. Pieschke, 295 N.W.2d 580, 584 (Minn. 1980). Credibility determinations are within the sole province of the jury and are not reweighed in appellate review. See State v. Engholm, 290 N.W.2d 780, 784 (Minn. 1980).

In addition to the jurisdictional elements of time and place, Kou Lor's conviction for third degree sexual conduct required the state to prove sexual penetration of a person 24 months younger who was under the age of 16. Minn. Stat. § 609.344, subd. 1(b) (1996). It was immaterial whether the person under 16 consented. Id. Kou Lor does not challenge the age disparity, but contends that S.D.'s testimony was so inconsistent that it cannot support his conviction.

S.D. testified specifically to one incident of sexual intercourse with Kou Lor. S.D. was an uncooperative witness who did not want to testify. She admitted in her testimony that her statements to police investigators were inconsistent and that she initially denied that she and Kou Lor had sexual intercourse. She further admitted that her statements on the number of times they had intercourse ranged between two and four.

In addition to S.D.'s unequivocal testimony on sexual intercourse, the state presented other probative evidence. C.B., who knew both S.D. and Kou Lor, testified that she was at Kou Lor's apartment when the sexual acts in the complaint took place. She testified that S.D. and Kou Lor were in the room alone; when S.D. and Kou Lor came out of the bedroom, Kou Lor said they had had intercourse; S.D. later told her they had intercourse; and that when S.D. and Kou Lor were in the bedroom she heard noises that sounded like people having sex. Other witnesses testified to Kou Lor's and S.D.'s boyfriend-girlfriend relationship, and the state introduced Kou Lor's 1992 conviction for second degree criminal sexual conduct with a 12-year-old girl.

The evidence was sufficient for the jury to find Kou Lor committed third degree criminal sexual conduct.

  III

During S.D.'s testimony, Kou Lor attempted to introduce the tape of a police interview of S.D. that apparently demonstrated a discrepancy between S.D.'s trial testimony of how she met Kou Lor and her statement to the police. The tape also demonstrated S.D.'s initial denial that she ever had intercourse with Kou Lor.

"Appellate courts largely defer to the trial court's exercise of discretion in evidentiary matters and will not lightly overturn a trial court's evidentiary ruling." State v. Kelly, 435 N.W.2d 807, 813 (Minn. 1989). Prior inconsistent statements are admissible if made under oath, and, subject to certain conditions, extrinsic evidence of a prior inconsistent statement may be admissible. See Minn. R. Evid. 613, 801(d)(1).

For a number of reasons, the district court's exclusionary ruling was well within its discretion: (1) the statement had not been transcribed; (2) there is no indication the statement was made under oath; (3) the way in which Kou Lor and S.D. met was not a central or contested issue; (4) S.D. acknowledged that she had provided variant testimony on the number of times (ranging between two and four) that she and Kou Lor had intercourse; (5) the district court had excluded Spreigl evidence of Kou Lor's pending charges of intercourse with another 12-year-old, N.H., and the tape contained unredacted references to that charge; (6) because the relationship with N.H. had been excluded because of its highly prejudicial value, S.D. could not explain that her denials occurred before she learned of Kou Lor's relationship with N.H. and that it was this knowledge that prompted her to give a truthful statement; and (7) Kou Lor was able to cross-examine S.D. and to call as a witness the police investigator who conducted the interview.

  IV

"Evidence of another crime, wrong, or act is not admissible to prove the character of a person in order to show action in conformity therewith." Minn. R. Evid. 404(b). It may, however, be admissible "to establish motive, intent, absence of mistake or accident, identity or common scheme or plan." State v. Slowinski, 450 N.W.2d 107, 113 (Minn. 1990) (citing State v. Spreigl, 272 Minn. 488, 491, 131 N.W.2d 167, 169 (1965)). The district court's decision to admit such evidence, which is commonly known as Spreigl evidence, will not be reversed on appeal absent a clear abuse of discretion. State v. Drieman, 457 N.W.2d 703, 709 (Minn. 1990).

The district court excluded the Spreigl evidence of Kou Lor's sexual relationship with N.H. even though it found that it was clear, convincing, and probative, because it could possibly have too strong an effect on the jury. The court allowed evidence of his 1992 conviction for criminal sexual conduct in the second degree. The 1992 conviction involved sexual contact with a 12-year-old female. Kou Lor does not dispute the clear and convincing nature of the evidence but that its probative value is outweighed by its prejudicial effect.

During the trial, Kou Lor attempted to show through cross-examination that another person was known by his same nickname of "Buddha." The court indicated that it would allow the Spreigl evidence to establish identity, respond to a possible defense of mistake, and to show an ongoing pattern of taking advantage of young girls. See State v. Wermerskirchen, 497 N.W.2d 235, 242 (Minn. 1993) (allowing Spreigl evidence that showed a design or pattern of opportunistic sexual exploitation of young girls). The district court gave a cautionary instruction at the time the evidence was introduced and at the close of evidence. The district court's allowing the Spreigl evidence was not an abuse of discretion. The district court also allowed the probation officer on the 1992 charge to testify to Kou Lor's statement that in sexual relations age did not matter so long as a girl had reached sexual maturity. We are not persuaded that the evidence is relevant to demonstrate state of mind, and no other basis for relevancy is argued on appeal. Nonetheless, in light of the admissibility of the conviction itself, there is no reasonable possibility that the statement significantly affected the verdict. See State v. Bolte, 530 N.W.2d 191, 198 (Minn. 1995) (wrongfully admitted evidence constitutes prejudicial error where there is "reasonable possibility" the verdict would have been more favorable if evidence not admitted) (citing State v. Post, 512 N.W.2d 99, 102 n.2 (Minn. 1994)).

  V

The district court's decision not to grant a new trial on the basis of prosecutorial misconduct should be reversed "only where the misconduct, viewed in the light of the whole record, appears to be inexcusable and so serious and prejudicial that defendant's right to a fair trial was denied." State v. Wahlberg, 296 N.W.2d 408, 420 (Minn. 1980). If an argument is improper, it is reviewed using a two-tier analysis that varies with the seriousness of the alleged improper argument. State v. Boitnott, 443 N.W.2d 527, 534 (Minn. 1989). In cases involving serious prosecutorial misconduct, this court must determine beyond a reasonable doubt that the misconduct was harmless. Id. But when the alleged improper conduct is less serious, we ask whether the misconduct played a substantial part in influencing the jury to convict. Id.

Kou Lor alleges four instances of prosecutorial misconduct, only one of which triggered an objection. See State v. Atkins, 543 N.W.2d 642, 647 (Minn.1996) (generally failure to object or seek a curative instruction for a prosecutor's improper statement forfeits a defendant's right to have the issue considered on appeal). That objection was raised to a prosecutorial reference to S.D. as "an unfortunate, messed-up, hostile young woman." The prosecutor then said, "Can you think of anyone more deserving and more needy of protection from the Kou Lors of the world than * * * ?"

At that point, Lor's attorney objected on grounds the statement could be interpreted as an impermissible request for victim sympathy. But in the context of this trial, it was more likely directed at an explanation of why the state proceeded on the prosecution despite S.D.'s noncooperation. The prosecutor disputed the "sympathy" characterization, but finished the argument without any similar references. On these facts, the statement was not improper and, in any event, would not have played a substantial part in influencing the jury to convict.

The remaining comments, all unobjected to, are equally inconsequential. The prosecutor stated that on this evidence the jury "will feel a strong feeling right--right here, right here in your gut, that this man had sexual intercourse with [S.D.] in Stearns County during the time alleged in the Complaint when she was 13 and he was 23. That strong feeling is proof beyond a reasonable doubt and why you will find Mr. Lor guilty." The comment was illustrative, and we do not find it improper. Defense counsel fully explained the burden of proof during his closing argument, and the court fully instructed on the burden of proof.

Kou Lor claims misconduct by the prosecutor in stating that the testimony of some of the state's witnesses was unimpeached. A prosecutor should avoid referring to the evidence as "uncontradicted" or unimpeached. State v. Bettin, 309 Minn. 578, 579, 244 N.W.2d 652, 654 (1976). S.D.'s impeachment was, however, the major issue at trial and the reference was to the testimony of two corroborating witnesses. The court in its instructions, and defense counsel during his closing argument, carefully explained that the state had the burden of proving its case and that the defense did not have to prove anything.

Finally, Kou Lor claims that the prosecutor improperly made repeated attacks on Kou Lor's character. Kou Lor has failed to identify any specific remarks, and our reading of the transcript of the argument does not disclose impermissible attacks on character. None of the prosecutor's comments constitute misconduct that requires intervention on review.

Affirmed.

*Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. Art. VI, § 10.