text:
    Kevin T. HANNON, petitioner, Appellant, v. STATE of Minnesota, Respondent.
    No. A07-1784.
    Supreme Court of Minnesota.
    July 17, 2008.

      Kevin Terrance Hannon, Stillwater, MN, Pro Appellant.
    Lori Swanson, Attorney General, St. Paul, MN, Janelle P. Kendall, Stearns County Attorney, Michael J. Lieberg, Assistant County Attorney, St. Cloud, MN, for Respondent.
   OPINION

PAGE, Justice.

Appellant Kevin Hannon was found guilty and convicted of first-degree murder in 2000 in connection with the 1999 death of Deborah Tolhurst. On direct appeal, we held that the trial court’s admission of statements Hannon made during police questioning after an unequivocal request for an attorney required that his conviction be reversed and that he be given a new trial. State v. Hannon (.Hannon I), 636 N.W.2d 796, 799, 807 (Minn.2001). At Hannon’s retrial, he was again found guilty and convicted of first-degree murder. State v. Hannon (Hannon II), 703 N.W.2d 498, 504 (Minn.2005). On direct appeal, we affirmed the conviction.

In December 2006, Hannon filed a petition for postconviction relief alleging: (1) his indictment was insufficient because it was based on recanted testimony and subsequently suppressed statements; (2) infringement of his right to testify; (3) bias on the part of the trial judge; (4) ineffective assistance of counsel; (5) prosecutorial misconduct; (6) exclusion of alternative perpetrator evidence; and (7) admission of prior testimony of an unavailable witness.

The postconviction court held a hearing limited to Hannon’s claim that he was denied the right to testify at his second trial. After the hearing, the court concluded that all the claims raised in Hannon’s petition were either meritless or procedurally barred and denied the petition. In addition to appealing the denial of each of the claims raised in his petition, Hannon also asks that we grant him post-conviction relief based on a new allegation that his trial counsel did not consult him before rejecting a plea offer made by the State during his second trial. We affirm.

When reviewing postconviction proceedings, we “ ‘extend a broad review’ ” of legal and factual questions. Butala v. State, 664 N.W.2d 333, 338 (Minn.2003) (quoting State ex rel. Pittman v. Tahash, 284 Minn. 365, 368, 170 N.W.2d 445, 447 (1969)). We review legal issues de novo, but our review of factual matters is limited to whether there is sufficient evidence in the record to sustain the postconviction court’s findings. Id. A petitioner has the burden of establishing by a preponderance of the evidence facts that would warrant relief. Ferguson v. State, 645 N.W.2d 437, 442 (Minn.2002).

“Once a direct appeal has been taken, all claims raised in that appeal, all claims known at the time of that appeal, and all claims that should have been known at the time of that appeal will not be considered in a subsequent petition for postconvietion relief.” Leake v. State, 737 N.W.2d 531, 535 (Minn.2007) (citing Black v. State, 560 N.W.2d 83, 85 (Minn.1997), and State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976)). There are two exceptions to this rule: “(1) if a novel legal issue is presented, or (2) if the interests of justice require review.” White v. State, 711 N.W.2d 106, 109 (Minn.2006).

All of Hannon’s claims, except the ineffective assistance of counsel claim, are procedurally barred under Knaffla. First, Hannon contends that he is entitled to postconviction relief because his indictment was based on recanted testimony and suppressed custodial statements. Hannon argues that Kenneth Paul Herbert, who was in jail with Hannon, testified falsely against Hannon before the grand jury. In support of his argument, Hannon attaches an affidavit from Herbert, dated April 25, 2001, in which Herbert states he was “coerced and manipulated” and “threatened with jail time” if he did not provide false statements. Hannon also contends that the statements he made to the police that we subsequently suppressed were used to obtain the indictment against him.

On the record presented, we conclude that Hannon knew of the claim that his indictment was based on recanted testimony at the time of both his second trial and direct appeal. The Herbert affidavit on which Hannon relies is dated April 25, 2001, which was nearly 8 months before we reversed Hannon’s first conviction, and he moved to admit the affidavit at his second trial. However, he did not raise the issue of Herbert’s recantation in his subsequent direct appeal. • Moreover, Hannon clearly knew at the time of his retrial that we had suppressed his custodial statements but failed to raise any issue regarding the effect the suppressed statements had on his indictment in his subsequent direct appeal. The claim therefore is procedurally barred by Knaffla.

Hannon also argues that the grand jury was not impartial because of publicity surrounding his case and because the prosecutor obtained perjured testimony from jailhouse informants whose benefits for testifying were not disclosed to the grand jury. Hannon raised this issue during his second trial but did not raise it in his direct appeal. Therefore, the claim is Knaffla-barred.

Hannon next argues that he was deprived of his constitutional right to testify when his trial counsel told him “you can’t testify,” which Hannon allegedly understood to mean that the judge had ruled that Hannon was not allowed to testify. Obviously, Hannon knew or should have known of any issues related to his claimed denial of the right to testify during his second trial. He did not, however, raise any such issues on direct appeal. Therefore, the claim is procedurally barred by Knaffla.

Hannon next argues that the judge who presided at his trial was biased against him because she allegedly had a social relationship with the victim’s friend and that he therefore is entitled to a hearing to determine the existence of any judicial bias. In July 2003, Hannon sued the judge in federal court for a civil rights violation based in part on the alleged judicial bias. Also in July 2003, Hannon unsuccessfully moved in state court to remove the judge from his trial based in part on this same claim of bias. In denying the motion, the district court found Hannon’s claims meritless. Again, as with the previous claims, Hannon did not raise this judicial-bias claim on direct appeal after his conviction. The claim is therefore Knaff-la-barred.

Hannon’s claim of ineffective assistance of counsel is based on his trial counsel’s failure to object to the alleged judicial bias. As the lower court found when it denied Hannon’s motion to remove the trial judge, this claim lacks merit. The United States Supreme Court has held that a criminal defendant has a constitutional right to a fair and impartial judge. See Cuypers v. State, 711 N.W.2d 100, 104 (Minn.2006) (citing Bracy v. Gramley, 520 U.S. 899, 904-05, 117 S.Ct. 1793, 138 L.Ed.2d 97 (1997)). In reviewing claims of judicial bias, we have considered whether the trial judge considered arguments and motions made by both sides, ruled in favor of a complaining defendant on any issue, and took actions to minimize prejudice to the defendant. See id.; State v. Mems, 708 N.W.2d 526, 533 (Minn.2006). Also, we presume that a judge has discharged her duties properly. Mems, 708 N.W.2d at 533. Previous adverse rulings by themselves do not demonstrate judicial bias. Id. Rather, the bias must be proved in light of the record as a whole. State v. Morgan, 296 N.W.2d 397, 404 (Minn.1980). Although Hannon alleges that the trial judge had a personal relationship with one of the witnesses at the first trial, the judge stated on the record that the witness and her husband used to rent property from the trial judge in the mid-90s. The judge also stated that she personally did not know or have contact with the witness. Furthermore, a review of the record discloses multiple rulings in Hannon’s favor. Notably, the judge granted Hannon’s motion to suppress DNA evidence, a ruling which was overturned by the court of appeals. State v. Hannon, No. C8-02-904, 2003 WL 21500311, at *1 (Minn.App. July 1, 2003). The judge also granted Hannon’s requests to preclude attorneys and witnesses from referring to his suppressed statements, to preclude testimony about tainted evidence, to preclude any reference to a harassment restraining order obtained against Hannon, and to preclude opinion testimony that a certain shirt was owned by Hannon or worn on the date of the murder. Hannon’s assertions of personal prejudice are not supported by the record, and he fails to overcome the presumption that the judge has discharged her duties properly.

Because Hannon’s claim of judicial bias is meritless, his claim of ineffective assistance of counsel based on counsel’s failure to raise the claim necessarily fails. See State v. Doppler, 590 N.W.2d 627, 633 (Minn.1999) (“[A] defendant must show by a preponderance of the evidence that his counsel’s performance was deficient, i.e., that his counsel’s performance ‘fell below an objective standard of reasonableness.’ ” (quoting Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984))).

Hannon next asserts that he is entitled to postconviction relief because of prosecutorial misconduct. The alleged misconduct includes vindictive prosecution, seeking excessive restitution, using tainted and false expert witness testimony, and withholding evidence relevant to his defense of diminished capacity. Our review of the record leads us to conclude that these claims were either known or should have been known to Hannon at the time of his direct appeal but were not raised. Therefore, Hannon’s prosecutorial misconduct claims are proeedurally barred by Knajfla.

Hannon next claims that the trial court violated his constitutional right to due process by excluding certain alternative-perpetrator evidence at trial. Again, it is obvious that Hannon knew at the time of his direct appeal that the evidence at issue was excluded at trial, but he failed to raise the issue as part of that direct appeal. Therefore, the claim is barred under Knajfla.

Finally, Hannon argues that the trial court erred in allowing the transcript of a deceased former witness’s testimony to be read into the record.- Because this issue was raised unsuccessfully on direct appeal, Hannon II, 703 N.W.2d at 506-07, it is proeedurally barred by Knaffla.

Because Hannon has failed to show that he is entitled to postconviction relief on any of his claims, we affirm his conviction.

Affirmed.

MAGNUSON, C.J., not having been a member of this court at the time of the submission, took no part in the consideration or decision of this case.

      . The facts surrounding the murder are detailed in our opinions reversing Hannon's conviction after his first trial, Hannon I, 636 N.W.2d at 799-803, and affirming Hannon's conviction after his second trial, Hannon II, 703 N.W.2d at 502-04.

      . We note that a judge different from the judge who presided at Hannon's trial presided over the postconviction proceedings.

      . Because Hannon did not raise the plea bargain issue in his postconviction petition, that issue has been forfeited, and we decline to consider it here. See Schleicher v. State, 718 N.W.2d 440, 445 (Minn.2006); Azure v. State, 700 N.W.2d 443, 447 (Minn.2005).

      . We note that neither exception to the Knaff-la rule applies to any of Hannon's procedurally barred claims. None of the issues involve legal issues so novel that they were unavailable at the time of direct appeal, and our review of the record satisfies us that the interests of justice do not require review. See White, 711 N.W.2d at 109.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    In re Petition for DISCIPLINARY ACTION AGAINST Nuro Bedhaso DEDEFO, a Minnesota Attorney, Registration No. 309989.
    No. A07-573.
    Supreme Court of Minnesota.
    July 17, 2008.

      Martin A. Cole, Director Office of Lawyers Professional Responsibility, Cassie Hanson, Senior Assistant Director, St. Paul, MN, for Appellant.
    William E. Sjoholm, Debra M. Newel, Thomsen & Nybeck, P.A., Edina, MN, for Respondent.
   OPINION

PER CURIAM.

In March 2007, the Director of the Office of Lawyers Professional Responsibility -(the Director) filed a petition for disciplinary action against respondent Nuro Bedhaso Dedefo. We appointed a referee to conduct a hearing and make findings of fact and recommendations for discipline, if necessary. After the hearing, the referee found that Dedefo violated various rules of professional conduct by: (1) improperly maintaining client trust accounts, books, and records; (2) incompetently representing himself; (3) obstructing another party’s access to relevant evidence; (4) knowingly offering false evidence; and (5) engaging in conduct prejudicial to the administration of justice. Based on those findings, the referee recommended Dede-fo be suspended from the practice of law in the State of Minnesota and be ineligible to petition for reinstatement for a minimum of 6 months. Dedefo now challenges the referee’s evidentiary rulings, findings of fact and conclusions of law, and disciplinary recommendation. We conclude that the appropriate discipline for Dedefo’s misconduct is the indefinite suspension of Dedefo’s license to practice law with no right to petition for reinstatement for a minimum of 6 months.

In 1995, Dedefo moved to the United States from Ethiopia. B.G., Dedefo’s wife, joined him in the United States in 1999. Dedefo graduated from Hamline University Law School and was admitted to practice law in Minnesota in October 2001. Since early 2002, he has maintained a general practice focusing on personal injury law.

In February 2001, B.G. sought an order for protection (OFP) against Dedefo, claiming that he had hit her in the eye, choked her, and pulled out clumps of her hair. At a hearing on the OFP petition, B.G. testified that Dedefo abused her and produced photographs of her injuries. De-defo denied that any abuse occurred. The district court issued the OFP, finding B.G.’s testimony more credible than Dede-fo’s.

Dedefo blamed three former friends for encouraging B.G. to seek the OFP. As a result, Dedefo commenced legal action (the lawsuit) against the three, alleging defamation, misrepresentation, intentional infliction of emotional distress, and interference with marital relationship. The defendants deposed Dedefo. During the deposition, Dedefo refused to disclose the factual basis for the allegations in his complaint on the ground that the information was protected by the work product doctrine. He also refused to answer questions about his relationship with B.G., saying, “I’m not here to talk about my wife. I’m here to talk about what they did to me.” He responded to questions about his claims with such statements as, “Be specific”; “It’s already stated in the complaint”; and “I will produce evidence when time is right. So I’m not here to tell you how I got the evidence.” At the end of the deposition, Dedefo demanded to be paid for his time.

Defendants moved for summary judgment. In opposition to the motion, Dedefo prepared and submitted, among other things, an affidavit signed by B.G. The affidavit retracted B.G.’s allegations of abuse and stated that the three defendants “influenced me to falsely accuse [Dedefo].” The district court granted the defendants’ summary judgment motion but denied defendants’ request for sanctions against De-defo. Defendants incurred some $7,500 in attorney fees; Dedefo does not dispute the referee’s finding that those fees “placed substantial financial burden” on the defendants.

In February 2003, the Director received notification of an overdraft on Dedefo’s trust account and opened a disciplinary file. During the Director’s investigation, B.G. met with an attorney in the Director’s office. Dedefo drove her to the meeting and waited for her in the lobby. At the meeting, B.G. retracted her statements that Dedefo had abused her and stated that the three defendants coerced her into seeking the OFP. B.G. later testified that she made these statements because “I feared for my life, and at that time I was also pregnant. * * * I afraid he might hit me, or I don’t know what would happen to me.”

B.G. secured a second OFP against De-defo in August 2003 after a contested hearing. Dedefo did not contest the issuance of a third OFP in October 2004, although he continued to deny ever abusing B.G. Dedefo eventually filed for dissolution, which was finalized in 2005.

In 2007, the Director petitioned for disciplinary action based on alleged trust account violations, obstruction of the defendants’ access to evidence in the defamation case, and knowing presentation of a false affidavit to the court. We appointed a referee, who conducted a hearing. The parties stipulated to factual findings regarding the trust account violations, but Dedefo challenged the allegations of obstructing access to evidence and filing a false affidavit. B.G., Dedefo, and Dedefo’s mother and daughter testified at the hearing.

Following the hearing, the referee found that Dedefo had commingled personal and client funds in his trust account and had negligently misappropriated client funds. The referee concluded that Dedefo had violated Minn. R. Prof. Conduct 1.15(h) by “failing to maintain proper trust account records.” The referee further concluded that the Director had proved by clear and convincing evidence that in the defamation lawsuit against his former friends Dedefo: (1) incompetently represented himself in violation of Minn. R. Prof. Conduct 1.1; (2) obstructed the defendants’ access to evidence in violation of Minn. R. Prof. Conduct 3.4(a); (3) knowingly offered evidence that he knew to be false in violation of Minn. R. Prof. Conduct 3.3(a)(3); and (4) engaged in conduct prejudicial to the administration of justice in violation of Minn. R. Prof. Conduct 8.4(d). The referee recommended that Dedefo be suspended from the practice of law and ineligible to apply for reinstatement for a minimum of 6 months.

Dedefo ordered a transcript of the hearing; therefore, the referee’s findings are not binding on this court. Rule 14(e), Rules on Lawyers Professional Responsibility (RLPR). In this proceeding, Dedefo raises three issues. First, he argues that evidence relating to his relationships with B.G. and the three defendants in the lawsuit was not relevant and that the referee erred in admitting it. Second, Dedefo argues that the referee’s findings of fact regarding obstruction of access to evidence, the false affidavit, and incompetent representation were clearly erroneous and that therefore the referee’s conclusion that Dedefo violated the rules of professional conduct is not supported by clear and convincing evidence. Finally, he argues that the recommended discipline is excessive.

I.

We turn first to Dedefo’s argument that evidence relating to his relationships with the defendants in the lawsuit and his ex-wife was not relevant to any of the issues in the case and, therefore, the referee erred in admitting it. The evidence at issue includes the testimony of B.G. and two of the three defendants in the lawsuit; evidence relating to the OFPs, including the petitions, hearing transcripts, and the OFPs themselves; and the court of appeals opinion adjudicating Dedefo’s challenge to the second OFP.

The Minnesota Rules of Evidence apply to disciplinary hearings. Rule 9(i)(4), RLPR; In re Wood, 716 N.W.2d 341, 346 (Minn.2006). Only relevant evidence is admissible. Minn. R. Evid. 402. “ ‘Relevant evidence’ means evidence having 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. A referee may exclude evidence if the danger of unfair prejudice substantially outweighs its probative value. Minn. R. Evid. 403. We will not reverse a referee’s evidentiary rulings absent an abuse of discretion. Wood, 716 N.W.2d at 346.

We agree with the referee that the evidence regarding Dedefo’s abuse of B.G. is relevant to whether Dedefo filed an affidavit that he knew contained false testimony. Specifically, the evidence supports the Director’s contention that Dedefo knew the following statements in B.G.’s affidavit were false: that Dedefo never abused her, that the three defendants in the lawsuit coerced her into making false claims of abuse, and that B.G. gave false testimony during the domestic abuse hearing. The evidence tends to show that the abuse occurred, which in turn shows that B.G.’s denials of it were false and that Dedefo must have known the denials were false. The evidence is also relevant as impeachment of Dedefo’s testimony before the referee. We believe the significant probative value of the evidence outweighs any potential unfair prejudice. We therefore conclude that the referee did not abuse his discretion by admitting evidence of Dede-fo’s personal relationships.

II.

We next examine whether the referee’s findings of fact and conclusions of law that Dedefo obstructed the defendants’ access to evidence in the lawsuit and knowingly filed a false affidavit were clearly erroneous. “On review, this court will uphold a referee’s findings and conclusions unless they are clearly erroneous.” In re Erickson, 653 N.W.2d 184, 189 (Minn.2002); see Rule 14(e), RLPR. “In other words, findings of fact will be reversed ‘only if, upon review of the entire evidence, a reviewing court is left with the definite and firm conviction that a mistake has been made.’ ” Erickson, 653 N.W.2d at 189 quoting In re Pinotti, 585 N.W.2d 55, 62 (Minn.1998). Further, a referee’s findings merit particular deference when they “rest on disputed testimony or on the respondent’s credibility or sincerity.” Id. “Allegations of professional misconduct must be proven by ‘full, clear and convincing evidence.’ ” Id. (quoting In re Ruhland, 442 N.W.2d 783, 785 (Minn.1989)). “The clear and convincing standard of proof is met “where the truth of the facts asserted is highly probable.’ ” Id. (quoting In re Moeller, 582 N.W.2d 554, 557 (Minn.1998)).

We first address the referee’s findings and conclusions regarding Dedefo’s obstruction of defendants’ access to evidence during discovery in the defamation lawsuit. Parties are ordinarily entitled to discovery of all relevant information. See Minn. R. Civ. P. 26.02(a). The information defendants sought at Dedefo’s deposition, which included the witnesses and documents that would support Dedefo’s claim that the defendants induced B.G. to falsely accuse him, went to the very heart of Dedefo’s allegations and as such was clearly relevant and therefore discoverable. Thus, Dedefo was obliged to produce it unless he could show an exception applied.

The work product doctrine is an exception to the rule that all relevant evidence is subject to discovery. The work product doctrine provides that “an attorney’s mental impressions, trial strategy, and legal theories in preparing a case for trial” are not discoverable. Dennie v. Metro. Med. Ctr., 387 N.W.2d 401, 406 (Minn.1986). “[MJaterials prepared in anticipation of litigation that do not contain opinions, conclusions, legal theories, or mental impressions of counsel are not work product and are discoverable under Minn. R. Civ. P. 26.02(3).” Id. Here, the defendants sought not information protected by the work product doctrine — that is, Dedefo’s mental impressions or trial preparation materials — but rather the factual basis for Dedefo’s claims. Dedefo’s work product objection prevented the defendants in the lawsuit from obtaining the discovery necessary to investigate Dede-fo’s claims and to prepare a defense to those claims. We therefore conclude that Dedefo’s conduct at the deposition was both incompetent and obstructive and violated Minn. R. Prof. Conduct 1.1, 3.4(a), and 8.4(d). |

We next consider whether the referee clearly erred in finding that Dedefo knowingly filed a false affidavit in violation of Minn. R. Prof. Conduct 3.3(a)(3). At the hearing, B.G. testified that the statements in the affidavit were false and were created by Dedefo. The referee concluded that B.G.’s testimony was “credible.” The referee noted that the affidavit “is replete with near direct quotes from [Dedefo’s] self-drafted complaint in the matter.” Finally, the referee found that Dedefo’s denials were “not credible in light of B.G.’s testimony, the February 21, 2001, OFP and judicial findings of abuse, and [Dede-fo’s] continued pattern of physical abuse of [B.G.].” The referee also found that Dedefo coerced B.G. into making false statements to the Director, crediting B.G.’s testimony at the hearing that her statements at the Director’s office were “false and made under duress.”

We conclude that the record amply supports the referee’s findings and conclusions. B.G. testified that Dedefo physically abused her and coerced her into signing a false affidavit, and the referee found B.G.’s testimony credible. In addition, the February 21, 2001, OFP supports the referee’s findings. The OFP itself is not conclusive, because OFPs issue upon a showing by the preponderance of the evidence, see, e.g., Johnson ex rel. Johnson v. Johnson, 726 N.W.2d 516, 518 (Minn.App.2007), whereas disciplinary proceedings require proof by clear and convincing evidence, Erickson, 653 N.W.2d at 189. Nevertheless, we conclude that the totality of the evidence in this case is sufficient to show that Dedefo knowingly filed a false affidavit in violation of Minn. R. Prof. Conduct 3.3(a).

We conclude that clear and convincing evidence shows that Dedefo negligently misappropriated client funds, commingled client and personal funds, and failed to maintain proper trust account books and records in violation of Minn. R. Prof. Conduct 1.15(a), (b), and (h); incompetently represented himself in violation of Minn. R. Prof. Conduct 1.1; obstructed another party’s access to evidence in violation of Minn. R. Prof. Conduct 3.4(a); knowingly offered evidence that he knew to be false in violation of Minn. R. Prof. Conduct 3.3(a)(3); and engaged in conduct prejudicial to the administration of justice in violation of Minn. R. Prof. Conduct 8.4(d).

III.

Finally, we turn to the question of the appropriate discipline in light of Dede-fo’s violations. Dedefo argues that the referee’s recommendation to suspend him from the practice of law for a minimum of 6 months is overly harsh compared to the discipline administered in comparable cases in the past. He asserts as mitigating factors financial hardship, his pro bono services to the Oromo ethnic community, and the fact that no clients were harmed. The Director argues that Dedefo’s litigation misconduct was intentional and dishonest and therefore warrants a lengthy suspension. The Director further argues that Dedefo has never expressed remorse for his misconduct.

“We impose sanctions to protect the public, to guard the administration of justice, and to deter future misconduct.” In re Jensen, 542 N.W.2d 627, 632 (Minn.1996). The appropriate sanction depends on four factors: “(1) the nature of the misconduct, (2) the cumulative weight of the violations of the rules of professional conduct, (3) the harm to the public, and (4) the harm to the legal profession.” In re Brooks, 696 N.W.2d 84, 88 (Minn.2005). “We impose disciplinary sanctions on a case-by-case basis, considering the specific acts of misconduct and any aggravating or mitigating circumstances, while looking to similar cases for guidance.” Id. Although we give great weight to the referee’s recommendation, we alone “retain[ ] final responsibility for determining appropriate sanctions.” Jensen, 542 N.W.2d at 632. Lawyer dishonesty is a particularly serious disciplinary violation, and “we should not hesitate to impose severe discipline when a lawyer demonstrates a lack of truthfulness and candor.” In re Ganley, 549 N.W.2d 368, 370 (Minn.1996) (internal quotation marks omitted). “Suspension is warranted when the lawyer knowingly engages in conduct that violates a duty to the profession and causes injury to the client, the public, or the legal system.” Id.

Although each case must be determined on its own facts, in this case the referee’s recommendation falls squarely within the range of sanctions we have imposed in cases of similar misconduct. E.g., In re Fuller, 621 N.W.2d 460 (Minn.2001) (indefinite suspension for presenting false evidence and other violations); In re Dvorak, 620 N.W.2d 908 (Minn.2001) (1-year suspension for obstructing another party’s access to evidence and other litigation misconduct); In re Thedens, 602 N.W.2d 863 (Minn.1999) (indefinite suspension for a minimum of 5 years for presentation of false evidence and discovery violations); In re Orlins, 574 N.W.2d 445 (Minn.1998) (disbarment for trust account violations and submission of false evidence); In re Margolis, 570 N.W.2d 688 (1-year suspension for forged retainer agreement and fabricated evidence); Ganley, 549 N.W.2d at 371 (6-month suspension for trust account violations and for alteration and false notarization of client affidavit); In re Selmer, 568 N.W.2d 702 (Minn.1997) (1-year suspension for discovery violations); Jensen, 542 N.W.2d at 633-34 (indefinite suspension for “harassing and frivolous litigation, neglecting professional obligations, and misrepresentations to judicial officers”); In re Salmen, 484 N.W.2d 253 (Minn.1992) (1-year suspension for false testimony).

The facts in this case are similar to those in Ganley, in which we imposed a 6-month suspension, the same penalty the referee recommended for Dedefo. See 549 N.W.2d at 371. In Ganley, the attorney, like Dedefo, had committed trust account violations involving negligent misappropriation of relatively small amounts ($120) of client funds, although Dedefo’s infractions involved multiple clients and Ganley’s only one. See id. at 369. Also, after receiving from a client a completed form seeking leave to file in forma pauperis, Ganley altered the client’s income figure so that she would qualify for IFP status. Id. Gan-ley then notarized the form even though the client had not signed it in his presence and was not aware of the alteration. Id. This behavior is analogous to Dedefo’s filing of the false affidavit: Dedefo improperly obtained a person’s signature to an affidavit and used it to oppose a motion for summary judgment. Dedefo’s case, however, involved the additional infraction of obstructing access to evidence.

In view of Dedefo’s various acts of misconduct, we conclude that the appropriate sanction is indefinite suspension of his license to practice law in Minnesota. In so concluding, we are mindful of the fact that Dedefo’s trust account violations caused no specific harm to Dedefo’s clients. Although the trust account violations are serious, they would not by themselves likely warrant suspension. But Dedefo’s other misconduct is more troubling. He has abused the legal process and thereby harmed the legal system. Further, the referee found that Dedefo “has refused to acknowledge the wrongful nature of his misconduct” at the deposition. He refused to acknowledge that his conduct in his deposition was discovery abuse, acknowledging only that “looking at the matter in hindsight, he might have handled it differently.” Both at the referee hearing and before this court, Dedefo continued to vehemently deny abusing B.G. Dedefo used his abusive relationship with B.G. to file a false affidavit with the district court. AI-though Dedefo cites as a mitigating factor his pro bono services to the Oromo ethnic community, his behavior inflicted substantial financial harm upon the defendants in his lawsuit, who are members of that very community.

We take dishonesty by lawyers seriously and have repeatedly held that a lack of truthfulness or candor warrants severe discipline. Therefore, we hereby suspend Dedefo’s license to practice law indefinitely. Dedefo shall have no right to petition for reinstatement for 6 months from the date of this opinion. Dedefo shall comply with the requirements set forth in Rules 18(a)-(e) and 26, RLPR. Dedefo shall also pay $900 in costs pursuant to Rule 24(a), RLPR.

It is so ordered.

MAGNUSON, C.J.', not having been a member of this court at the time of the argument and submission, took no part in the consideration or decision of this case.

DIETZEN, J., took no part in the decision of this case.

      . "A lawyer shall not: (a) unlawfully obstruct another party’s access to evidence * * Minn. R. Prof. Conduct 3.4. “It is professional misconduct for a lawyer to * * * engage in conduct that is prejudicial to the administration of justice * * Minn. R. Prof. Conduct 8.4(d).

      . Rule 3.3(a)(3) provides that "[a] lawyer shall not knowingly * * * offer evidence that the lawyer knows to be false.”

      . The Director also challenges the referee’s conclusions of law on the limited ground that the referee clearly erred by not concluding that Dedefo violated Minn. R. Prof. Conduct 1.15(a) and (b) as well as 1.15(h), which governs the keeping of trust account books and records. We agree with the Director that the referee's findings of fact support a conclusion that Dedefo improperly disbursed funds from one client's trust funds to cover another client’s transactions and, therefore, violated Rule 1.15(a). We also agree that the finding that Dedefo commingled personal and client funds in his trust account supports a conclusion that Dedefo violated Rule 1.15(b). In light of our disposition of the matter, however, these additional violations are of negligible effect.


author: COLLINS, Judge.

text:
    STATE of Minnesota, Appellant, v. Dale Allen MOEN, Respondent.
    No. A07-2365.
    Court of Appeals of Minnesota.
    July 8, 2008.

      Lori Swanson, Attorney General, St. Paul, MN; and Brian J. Melton, Clay County Attorney, Pamela L. Harris, Assistant County Attorney, Moorhead, MN, for Appellant.
    Lindsey D. Haugen, Larivee & Light, Fargo, MN, for Respondent.
    Considered and decided by ROSS, Presiding Judge; CONNOLLY, Judge; and COLLINS, Judge.
   OPINION

COLLINS, Judge.

The State of Minnesota challenges the district court’s dismissal of the felony domestic-violence charge against respondent. We reverse and remand.

FACTS

Respondent Dale Allen Moen was arrested on September 8, 2007, after he hit the 16-year-old child of his live-in girlfriend on the head with his closed fist. The child resided with Moen and the child’s mother. Moen admitted to police that he struck the child, explaining that he did so because he thought the child was lying to him. Moen was charged with felony domestic assault and gross-misdemeanor child endangerment. The felony enhancement was based on Moen’s convictions in March 1998 in North Dakota of felony assault against a peace officer and misdemeanor assault against a different victim.

Moen moved for dismissal of the felony charge, contending that “the [sjtate has failed to allege [Moen] committed the [offense] within ten years of the first of any combination of two or more previous qualified domestic violence-related offense convictions.” Moen argued that his North Dakota convictions did not constitute qualified domestic violence-related offenses because “[i]t is unclear whether either of [Moen’s] convictions ... arose out of a situation involving domestic violence.” In the alternative, Moen argued that his North Dakota conviction of assaulting a peace officer was dissimilar to fourth-degree assault under Minnesota law.

The state argued that (1) the plain statutory meaning of “[q]ualified domestic violence-related offense” includes any offense enumerated in Minn.Stat. § 609.02, subd. 16 (2006); (2) legislative history supports broadening the offense of felony-level domestic assault; and (3) the relevant North Dakota statutes are similar to Minnesota statutes enumerated as “[q]ualified domestic violence-related offense[s].”

The district court dismissed the charge for lack of probable cause, reasoning:

For those other offenses [lacking an explicit domestic-violence component], that nexus with domestic violence is key; it is not enough that a conviction under a given statute is listed [in the definition of a qualified domestic-violence related offense], the conviction must also arise out of an incident involving domestic violence. Before an offense can be considered a qualified domestic-violence related offense, it must be a domestic-violence related offense.

Further, the district court found that “[a]n interpretation of [the definition of a ‘[q]ual-ified domestic-violence related offense’] that would characterize, for example, a fifth degree assault conviction as a ‘qualified domestic-violence related offense’ conviction even if it did not involve domestic violence, would be an absurd result.” The district court did not address whether the North Dakota and Minnesota statutes are similar. This appeal followed.

ISSUES

I. Does Minn.Stat. § 609.02, subd. 16 (2006), require an enumerated offense to have a nexus to domestic violence to constitute a “[qualified domestic violence-related offense?”

II. Are respondent’s North Dakota convictions similar to enumerated Minnesota offenses?

ANALYSIS

I.

As an initial matter, we must address whether the dismissal of the felony charge has a critical impact on the prosecution of this case. See State v. Scott, 584 N.W.2d 412, 416 (Minn.1998) (stating critical impact must be established before this court determines whether the district court’s pretrial determination was erroneous). The standard for critical impact is that the dismissal “significantly reduces the likelihood of a successful prosecution.” State v. Kim, 398 N.W.2d 544, 551 (Minn.1987). Here, although the state can still prosecute Moen under the gross-misdemeanor child-endangerment charge, we conclude that the dismissal of the felony domestic-violence charge had a critical impact on this case. See State v. Kiminski, 474 N.W.2d 385, 389 (Minn.App.1991) (holding that the possibility of an alternative prosecution did not preclude the state’s ability to appeal the dismissed charge it would prefer to prosecute), review denied (Minn. Oct. 11, 1991).

The state argues that the district court erred in determining that the statutory definition of a “[qualified domestic violence-related offense” requires a domestic-violence nexus. We agree.

Statutory-construction questions are reviewed de novo. Brookfield Trade Ctr., Inc. v. County of Ramsey, 584 N.W.2d 390, 393 (Minn.1998). We begin by examining the statutory language; a statute is applied according to its plain meaning unless its meaning is ambiguous. Harrison ex rel. Harrison v. Harrison, 733 N.W.2d 451, 453 (Minn.2007); see also Minn.Stat. § 645.16 (2006) (“When the words of a law in their application to an existing situation are clear and free from all ambiguity, the letter of the law shall not be disregarded under the pretext of pursuing the spirit.”)- Ambiguity exists if the statute “is subject to more than one reasonable interpretation.” Am. Family Ins. Group v. Schroedl, 616 N.W.2d 273, 277 (Minn.2000). If a statute is ambiguous, then its interpretation is guided by the legislature’s intent. Minn.Stat. § 645.16. In ascertaining legislative intent, it may be presumed that “the legislature does not intend a result that is absurd, impossible of execution, or unreasonable” and that the legislature intended all statutory provisions to have meaning. Minn. Stat. § 645.17 (2006). Finally, penal statutes are construed strictly; any reasonable doubt regarding legislative intent is resolved in favor of the accused. State v. Colvin, 645 N.W.2d 449, 452 (Minn.2002). However, the rule of strict construction does not compel the narrowest possible construction of the statute. State v. Zacher, 504 N.W.2d 468, 473 (Minn.1993).

A person who commits domestic assault against a family or household member in violation of Minn.Stat. § 609.2242 (2006) or who commits assault in the fifth degree in violation of Minn.Stat. § 609.224, subd. 1 (2006), “within ten years of the first of any combination of two or more previous qualified domestic violence-related offense convictions ... is guilty of a felony.” Minn. Stat. § 609.2242, subd. 4. “‘Qualified domestic violence-related offense’ includes a violation of or an attempt to violate sections ... 609.2231 (fourth-degree assault); 609.224 (fifth-degree assault) ... and similar laws of other states....” Minn.Stat. § 609.02, subd. 16 (Supp.2007).

Because Moen intentionally inflicted bodily harm on a household member, his assault of his girlfriend’s child constituted domestic assault in violation of Minn.Stat. § 609.2242, subd. 1.

We conclude that Minn.Stat. § 609.02, subd. 16, is not ambiguous. By its plain text, violation of any enumerated offense including Minn.Stat. §§ 609.2231 and .224 constitutes a “[qualified domestic violence-related offense.” Id. The district court’s conclusion that a domestic-violence “nexus” is required is not supported by the statutory language. Moreover, requiring a nexus would render portions of the statutory language superfluous. The legislature chose to list domestic assault and the five degrees of assault as separate qualifying offenses. Minn.Stat. § 609.02, subd. 16. Requiring a domestic-violence nexus would absorb the other five assault offenses into the domestic-assault offense. See Minn.Stat. § 645.17 (stating the presumption that the legislature intends all statutory provisions to have meaning). Contrary to the district court’s finding, the result that we reach is not absurd. Arguably, any behavior indicating an individual’s propensity for violence is related to domestic violence. And because the statute is unambiguous, the rule of construction that compels resolving any doubts in favor of Moen is not applicable. Colvin, 645 N.W.2d at 452. And this court cannot add further limitations on the term “[qualified domestic violence-related offense” that the legislature has not chosen to impose. See generally State v. Koperski, 611 N.W.2d 569, 573 (Minn.App.2000).

We conclude that the district court’s construction of Minn.Stat. § 609.02, subd. 16, was erroneous because it was contrary to the plain meaning of an unambiguous statute.

II.

Next, we must determine whether Moen’s North Dakota convictions are similar to qualified Minnesota offenses.

Again, the list of Minnesota crimes that constitute “[qualified domestic violence-related offense[s]” specifies that “similar laws of other states” are included in its definition. Minn.Stat. § 609 .02, subd. 16 (2006). Nontechnical words “are construed according to rules of grammar and according to their common and approved usage.” Minn.Stat. § 645.08 (2006). “Similar” is defined as “[r]elated in appearance or nature; alike though not identical.” The American Heritage College Dictionary 1292 (4th ed.2007).

Moen was convicted in North Dakota of a “class C felony” for assaulting a peace officer and of a “class B misdemeanor” for assault:

1. A person is guilty of an offense if that person:
a. Willfully causes bodily injury to another human being; or
b. Negligently causes bodily injury to another human being by means of a firearm, destructive device, or other weapon, the use of which against a human being is likely to cause death or serious bodily injury.
2. The offense [of assault] is a class B misdemeanor except when the victim is a peace officer ... acting in an official capacity, which the actor knows to be a fact, ... in which case the offense is a class C felony.

N.D. Cent.Code § 12.1-17-01 (1995).

The state argues that Moen’s conviction of assaulting a peace officer in North Dakota is similar to Minnesota’s offense of assaulting a peace officer. We agree.

Minnesota law provides that:

Whoever physically assaults a peace officer licensed under section 626.845, subdivision 1, when that officer is effecting a lawful arrest or executing any other duty imposed by law is guilty of a gross misdemeanor [fourth-degree assault] and may be sentenced to imprisonment for not more than one year or to payment of a fine of not more than $3,000, or both. If the assault inflicts demonstrable bodily harm ... the person is guilty of a felony.

Minn.Stat. § 609.2231, subd. 1 (2006).

These laws are similar because they both involve assaulting a peace officer. Although Moen argues that the laws are dissimilar because “[u]nder the North Dakota statute, a defendant must have willfully caused bodily injury to a peace officer,” the statute requires only bodily injury caused by willfulness or negligence. (Emphasis added.) N.D. Cent. Code § 12.1-17-01. And although Moen argues that bodily injury is not required in Minnesota for the fourth-degree-assault charge, when bodily injury results the offense is enhanced to a felony. Minnesota’s felony assault is the relevant offense to compare to Moen’s North Dakota felony assault. Minn.Stat. § 609.2231, subd. 1. Moen’s argument that the statutes are dissimilar because of Minnesota’s licensure requirement also lacks merit. In Minnesota, individuals “who have satisfactorily completed certified basic training programs, and passed examinations as required by the board” may be licensed as peace officers. Minn. Stat. § 626.845, subd. 1(d) (2006). And similarly, in North Dakota “ ‘peace officer’ means a public servant authorized by law or by a government agency or branch to enforce the law and to conduct or engage in investigations or prosecutions for violations of law.” N.D. Cent. Code § 12.1-01-04(17) (1995). The fact that the Minnesota assault statute explicitly refers to the licensure requirement is not such a distinction as to render the laws of the respective states dissimilar.

The state argues that Moen’s other North Dakota conviction of misdemeanor assault is similar to Minnesota’s offense of fifth-degree assault. We agree.

Minnesota law provides that: “Whoever does any of the following commits an assault and is guilty of a misdemeanor: (1) commits an act with intent to cause fear in another of immediate bodily harm or death; or (2) intentionally inflicts or attempts to inflict bodily harm upon another.” MinmStat. § 609.224, subd. 1 (2006).

This offense is similar to Moen’s North Dakota assault conviction because both offenses address intentionally inflicting bodily harm on another. Although Minnesota’s statute appears to be broader because it encompasses an “attempt [] to inflict bodily harm,” id,., North Dakota law provides that “[cjriminal attempt is an offense of the same class as the offense attempted.” N.D. Cent. Code § 12.1-06-01(3) (1995).

We conclude that Moen’s March 1998 convictions under N.D. Cent.Code § 12.1-17-01 constitute two “[qualified domestic violence-related offense[s]” because the offenses are similar to two Minnesota offenses enumerated in MinmStat. § 609.02, subd. 16.

DECISION

The plain language of the text of Minn. Stat. § 609.02, subd. 16 (2006), does not require a domestic-violence nexus for an offense enumerated in the subdivision to constitute a “[qualified domestic violence-related offense.” Because Moen was convicted of two offenses similar to offenses listed therein within ten years before the current offense, the district court erred in dismissing the felony domestic-violence charge for lack of probable cause.

Reversed and remanded.

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

      . "Family or household member” includes "persons who are presently residing together.” Minn.Stat. § 518B.01, subd. 2(b)(4) (2006).

      . In contrast, misdemeanor and gross-misdemeanor domestic assault expressly require that the offense be committed against "a family or household member.” Minn.Stat. § 609.2242, subds. 1, 2 (2006).

      . We note that after stating that Minn.Stat. § 609.2231 is a qualifying offense the legislature added “fourth-degree assault” in parentheses. Minn.Stat. § 609.02, subd. 16. But it appears that the parentheticals merely list the heading of the statutory section, and it was not intended to exclude any enhancements contained within. Moreover, it would be an absurd result if a more serious violation of an enumerated statutory section would not qualify. See Minn.Stat. § 645.17 (stating that we may presume the legislature did not intend an absurd result).

      . Before the district court, Moen did not argue that the simple-assault statutes were dissimilar. Generally, this court does not consider matters not raised before the district court. Roby v. State, 547 N.W.2d 354, 357 (Minn.1996). And respondent failed to brief this issue. See State v. Butcher, 563 N.W.2d 776, 780 (Minn.App.1997) (holding that issues not briefed on appeal are waived), review denied (Aug. 5, 1997). But because the issue was implied in the district court and has constitutional implications, we conclude that justice requires addressing it here. Minn. R. Civ.App. P. 103.04 (stating that this court has discretion to consider any issue on appeal).


author: SCHELLHAS, Judge.

text:
    STATE of Minnesota, Respondent, v. Richard Parnell RUCKER, Appellant.
    No. A07-0773.
    Court of Appeals of Minnesota.
    July 15, 2008.

      Lori Swanson, Attorney General, St. Paul, MN; and Doug Johnson, Washington County Attorney, Michael Hutchinson, Assistant County Attorney, Stillwater, MN, for Respondent.
    Lawrence Hammerling, Chief Appellate Public Defender, Jessica Godes, Assistant Public Defender, St. Paul, MN, for Appellant.
    Considered and decided by SHUMAKER, Presiding Judge; SCHELLHAS, Judge; and MUEHLBERG, Judge.

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

   OPINION

SCHELLHAS, Judge.

Appellant Richard Parnell Rucker challenges his convictions of two counts of first-degree criminal sexual conduct and two counts of second-degree criminal sexual conduct arising out of his relationships with two minor females. On appeal, appellant argues that: (1) he was not in a position of authority over the girls; (2) the jury was not adequately instructed as to the meaning of the applicable venue statute; (3) the district court erred in not instructing the jury to unanimously determine which specific acts appellant committed; (4) Spreigl evidence was improperly admitted; and (5) the prosecutor’s misconduct during closing arguments warrants a new trial. We hold that: (1) appellant was in a position of authority over the girls; (2) the venue statute allowed the prosecution of appellant in the county where his victims resided either at the time he abused them or at the time they reported the abuse; (3) the charged offenses stemmed from two courses of conduct and did not require jury unanimity on the specific acts; (4) Spreigl evidence was relevant and not unfairly prejudicial to appellant and, therefore, admissible; and (5) any prosecutorial misconduct failed to meet the threshold of reversible error, and, therefore, we affirm.

FACTS

In April 2003, appellant was hired as a co-facilitator of Project Alliance (PA), an after-school program designed to help junior-high-school students who needed academic help in the South Washington County School District. N.L., a student at Lake Junior High School, was referred to PA by her school’s guidance counselor. A.K., a student at Cottage Grove Junior High School, was referred to PA by her principal. During the 2003-2004 school year, both N.L. and A.K. had contact with appellant through their participation in PA. Appellant and his co-facilitator provided their phone numbers and e-mail addresses to the PA students. Both N.L. and A.K. began communicating with appellant outside of PA classroom hours. During their participation in PA, both N.L. and A.K. were experiencing family trauma: N.L.’s father was diagnosed with cancer, and A.K.’s parents were about to divorce. N.L. expressed suicidal thoughts in a letter and when appellant saw the letter during a PA session, he spoke with N.L. in a hallway, telling her that he had “lost angels in his life” and encouraged N.L. to contact him outside of PA hours.

At trial, N.L. described several incidents of sexual contact she had with appellant. N.L. testified that during her ninth-grade school year, appellant took her to a movie theater, where he rubbed his hands over her pants on her vagina. N.L. also testified about one other incident at a movie theater when appellant digitally penetrated N.L.’s vagina. N.L. also testified that during her ninth-grade school year, while at his apartment in Hennepin County, appellant put his penis inside her vagina. N.L. further testified that on Valentine’s Day of 2004 or 2005, while at his apartment, appellant placed his tongue on her vagina and that from the fall of 2003 to the fall of 2005, she went to appellant’s apartment “probably around 40” times and engaged in vaginal or oral intercourse “just about every time.” N.L. testified as to these and other specific acts of sexual penetration and an estimated 40 additional acts of penetration occurring on 40 additional dates. Appellant testified that he had taken N.L. shopping and had purchased clothes for her.

A.K. described similar incidents at trial. A.K. testified that appellant told her he would take her out to celebrate her 14th birthday if she worked hard to improve her grades. With the permission of A.K.’s parents, appellant took A.K. to a movie theater and a restaurant; appellant testified that he could not remember where the theater and restaurant were located. A.K. testified that on this occasion, appellant digitally penetrated her vagina twice. A.K. also testified that on Valentine’s Day, 2004, while at appellant’s apartment, appellant penetrated A.K.’s vagina with his finger and his tongue and then rubbed his penis on top of, but not inside, her vagina. A.K. testified that on “maybe three or four” occasions, appellant digitally penetrated her vagina while parked in his car on her block before dropping her off after PA, and that between Valentine’s Day 2004 and February 2005, appellant would “do stuff sexually” with A.K. at his apartment in Minneapolis, including digital penetration of her vagina. A.K.’s testimony recounted between seven and eight specific acts of sexual penetration on five or six different dates, and estimated that several additional acts of penetration occurred. A.K. also testified that, in addition to taking her to a movie, appellant gave her a pair of diamond earrings that he told her cost $200. A.K.’s sexual relationship with appellant ended after A.K. moved from her home in Washington County to Dakota County.

Coincidentally, N.L. and A.K. had known of each other in elementary school and became reacquainted after meeting at a PA function in August 2005. They communicated afterward and discovered that both had relationships with appellant outside of PA. After months of communicating with N.L., when A.K. had moved from Washington County to Dakota County, A.K. told her father about her sexual contact with appellant. A.K.’s father told her to notify the police, who in the course of investigating A.K.’s allegations, contacted N.L., who still resided in Washington County and continued to reside there at the time of appellant’s trial.

Appellant was tried in Washington County on two counts of first-degree criminal sexual conduct and two counts of second-degree criminal sexual conduct. The issue of venue was a point of contention between the prosecution and appellant. The prosecution and defense disagreed on the meaning of “where the child is found” as used in Minn.Stat. § 627.15 (2002), which allows a criminal action for alleged child abuse to be prosecuted either in the county where the alleged abuse occurred or the county “where the child is found.” The defense wanted the statutory language to be submitted to the jury without interpretation. The defense also wanted to present an argument to the jury as to when a child has to be found in a county to allow prosecution in that county, which was relevant because A.K. moved out of Washington County before the abuse was reported. The district court ruled in favor of the defense and instructed the jury that a child may be “found” and abuse may be prosecuted “in the county where the alleged abuse occurred” or the county where the child resides. In closing, the prosecutor argued that the element of venue was satisfied because one act of penetration occurred at a theater in Washington County and because A.K. lived in Washington County during the time that appellant abused her. The defense argued that since A.K. did not reside in Washington County when she reported the abuse, he could not be prosecuted in Washington County for sexually abusing A.K. in Hen-nepin County.

The prosecution sought to introduce Spreigl evidence regarding a 1993 incident between appellant and a 15-year-old girl, S.M., for which appellant was convicted of gross-misdemeanor fifth-degree criminal sexual conduct. Appellant met S.M., who was a runaway, when he was a bass-guitar player for a choir in which S.M. sang. Appellant and S.M. had sexual intercourse in appellant’s Minneapolis apartment, the same apartment to which appellant took N.L. and A.K. As a result of his sexual contact with S.M., appellant was convicted in 1994, but his conviction was later expunged from his record. The district court found that because that incident and the charged offenses involved sexual conduct at appellant’s apartment with minor girls who were considerably younger than appellant, the evidence was admissible to show a “common scheme and plan.” The prosecution and the defense eventually stipulated that in lieu of S.M.’s live testimony, the jury would receive copies of documents related to the 1993 incident and would be told that the resulting conviction was expunged from his record. The district court instructed the jury that the evidence was only to be used to determine if appellant committed the charged offenses, and not to judge the defendant’s character.

Appellant consistently testified at his trial that he had no sexual contact with N.L. or A.K. At the conclusion of the trial, the prosecution began its closing argument by describing a hypothetical personal advertisement for appellant:

If the defendant Rucker placed a classified ad in a newspaper it would read as follows: Adult male working for out-of-the-box homework club program seeks females ages thirteen to fifteen for sexual gratification. Problems at home and thoughts about committing suicide a plus. Must be able to work weekends and week days. Excellent fringe benefits including movies, dinner, jewelry, and clothing.

The prosecutor also suggested the motives behind some of appellant’s statements. For example, the prosecutor said, in reference to an e-mail message admitted as evidence:

Look at the exhibit and see what his response was. “Not on the computer.” I’m not going to tell you on the computer how I feel. This might become adverse to me later on if I do it on the computer as a paper trail. Somebody seeing that might think that what you’re saying is true and I don’t want to be locked into that.

At the end of his argument, the prosecutor stated, “[t]his is a search for the truth. A search for the truth is what we do in criminal court. And that’s what those two girls testified to.” The defense argued in closing that the police “rushed to judgment” in not verifying the victims’ statements. In rebuttal, the prosecution stated, “[t]hey suggest that the police engaged in a rush to judgment. Boy, that term’s never been used in a courtroom before.”

The jury convicted appellant on all four charges, and this appeal followed.

ISSUES

I. Was appellant in a position of authority over his victims when he abused them?

II. For purposes of the venue statute, can a child be “found” in a county if he or she resided there at the time the abuse occurred?

III. Did the district court err in not instructing the jury to unanimously agree on the acts of which it was convicting the defendant?

TV. Was Spreigl evidence from a 1993 incident erroneously admitted?

V. Did the prosecutor commit misconduct sufficient to warrant a new trial?

ANALYSIS

I. Position of Authority

To convict appellant of first-degree criminal sexual conduct, the state had to prove that he was in a position of authority over the victims at the time of the acts. Construction of a criminal statute is a question of law subject to de novo review. State v. Murphy, 545 N.W.2d 909, 914 (Minn.1996). A statute is to be construed according to its plain language. Minn.Stat. § 645.16 (2002). If the language of a statute is ambiguous, the intent of the legislature controls. Id. “A rule of strict construction applies to penal statutes,” so as to “guard against the creation of criminal offenses outside the contemplation of the legislature, under the guise of judicial construction.” State v. Colvin, 645 N.W.2d 449, 452 (Minn.2002) (quotation omitted). “[A]ll reasonable doubt concerning legislative intent should be resolved in favor of the defendant.” Id.

Minnesota Statutes, section 609.341, subdivision 10 (2002), provides that a person in a “ ‘position of authority’ includes but is not limited to”: (1) “any person who is a parent or acting in the place of a parent and charged with any of a parent’s rights, duties or responsibilities to a child”; and (2) “a person who is charged with any duty or responsibility for the health, welfare, or supervision of a child, either independently or through another, no matter how brief, at the time of the act.” Appellant argues that as a matter of law, he was not in a position of authority over either victim at the time of the abuse. Appellant asserts that the first example in section 609.341 does not apply here because he was not acting in the place of a parent. Appellant asserts that the second example does not apply because he was not accused of abusing the victims during PA hours, which appellant argues are the only times he could have been in a position of authority over them. But the circumstances in which a person is in a position of authority are not limited to the examples of “position of authority” described in section 609.341, subdivision 10. Id. This court has held that “position of authority” is “broadly defined” under this statute, State v. Willette, 421 N.W.2d 342, 345 (Minn.App.1988), review denied (Minn. May 16,1988), and that the statutory definition “does not contain an exclusive list of persons in a position of authority,” State v. Larson, 520 N.W.2d 456, 461 (Minn.App.1994), review denied (Minn. Oct. 14, 1994).

Here, appellant supervised both N.L. and A.K. while they participated in PA. Through PA, appellant exchanged personal contact information with the victims, encouraging his victims to use the information to maintain their relationships with appellant outside of PA hours. On at least one occasion, appellant pulled N.L. aside during PA hours and encouraged her to contact him personally. On at least one other occasion, appellant took A.K. away from her home with her parents’ permission outside of PA hours as a reward for her success in the PA program. Several of the incidents of abuse involving A.K. occurred when appellant was dropping her off at home outside PA hours. Given the broad reading of the statutory definition of “position of authority,” these facts support a determination that appellant was in a position of authority over both N.L. and A.K. Therefore, we conclude that appellant was in a position of authority over the course of his sexual abuse of A.K. and N.L.

II. Venue

Appellant argues that the district court erred by not properly instructing the jury as to the element of venue. A district court has “considerable latitude in selecting the language of jury instructions.” State v. Baird, 654 N.W.2d 105, 113 (Minn.2002). Jury instructions must define the elements of the crime charged and “it is desirable for the court to explain the elements of the offense rather than simply to read statutes.” State v. Kuhnau, 622 N.W.2d 552, 556 (Minn.2001). If the jury instructions correctly state the law in language that can be understood by the jury, there is no reversible error. State v. Peon, 579 N.W.2d 471, 475 (Minn.1998).

Generally, in a criminal trial, the accused has the right to be tried “by an impartial jury of the county or district wherein the crime shall have been committed.” Minn. Const, art. I, § 6. But a criminal action arising out of an incident of alleged child abuse may be prosecuted either in the county where the alleged abuse occurred or the county where the child is found. Minn.Stat. § 627.15 (2002) (emphasis added). In Larson, this court held that the legislature intended that a child could be “found” in his or her county of residence. 520 N.W.2d at 460. The district court relied on Larson when it instructed the jury that as to each charge of criminal sexual conduct, appellant may be prosecuted “in the county where the child resides.” In this case, A.K. moved from Washington County to Dakota County before she reported abuse that occurred when she lived in Washington County. Thus, appellant argues that the district court should have instructed the jury as to when it was necessary for A.K. to have resided in Washington County in order to be “found” there. Instead, the district court permitted the prosecution to argue in closing that “where the child resides” could mean where the child resided when the abuse occurred and permitted appellant to argue that “where the child resides” could only mean where the child resided when the abuse was reported.

The phrase “where the child resides” is vague with respect to time, and no published authority defines when a child must reside in a county in order for abuse of the child to be prosecuted in the county. But as this court noted in Larson, id., the supreme court’s holding in State v. Krejci, 458 N.W.2d 407, 411 (Minn.1990), implies that the venue statute is to be interpreted liberally. In Krejci, the child-victim was physically assaulted in Renville County, and the abuse was discovered in Henne-pin County. 458 N.W.2d at 408-09. The supreme court held that because authorities discovered the abuse in Hennepin County, the child was “found” there even though the abuse itself occurred in a different county. Id. at 412. Additionally, the supreme court described many of the situations specific to child-abuse cases that necessitate a liberal construction of the venue statute. Id. at 411. For example, incidents of child abuse may not be immediately or accurately reported; the child may not be aware of where the abuse occurred; or the child may be moved to another county against his or her will. Id. The Krejd court noted that the legislature enacted section 627.15, in part, because the “hidden nature of child abuse” gives rise to difficulty in establishing venue. Id.

In Larson, where the child-victim who resided in Goodhue County was sexually abused in Renville County and Goodhue County, this court relied on the reasoning in Krejci. 520 N.W.2d at 459. In response to the defendant’s argument that the child could not be “found” in her county of residence, we held that “[t]he plain language of section 627.15 does not support such a limited interpretation.” Id. at 460. We further held that a child could be “found” in her county of residence because “[t]he statute contains no terms limiting how or where a child may be ‘found,’ ” and the legislature intended that a child could be “found” in her county of residence. Id. (citing Hearing on S.F. No. 1291 Before the Senate Judiciary Committee, Criminal Law Division (Apr. 19,1977)).

Because in Larson, we did not establish the point in time at which a child must reside in a county in order to be “found” there, confusion exists about the proper application of the venue statute in this case. The liberal construction of the venue statute, advocated by the Krejd and Larson courts, does not support a narrow interpretation that a child can be “found” only in the county in which she resided at the time the abuse was discovered and not in the county in which she resided at the time the abuse occurred. Such a narrow interpretation of the venue statute would fail to address the particular difficulty in establishing venue in child-abuse cases as described in Krejd. Therefore, we hold that for the purpose of establishing venue in the limited area of child-abuse, a child can be “found” in the county where the child resided either when the abuse occurred or when the abuse was discovered. In this case, the jury was properly instructed as to the element of venue.

III. Jury Unanimity

“A unanimous verdict shall be required in all cases.” Minn. R.Crim. P. 26.01, subd. 1(5). But a jury need not agree unanimously with respect to the alternative means or ways in which a crime can be committed. State v. Begbie, 415 N.W.2d 103, 106 (Minn.App.1987), review denied (Minn. Jan. 20, 1988). Generally, specific dates need not be proved in cases charging criminal sexual conduct over an extended period of time. See State v. Becker, 351 N.W.2d 923, 927 (Minn.1984) (holding that a defendant can be convicted of sexual abuse if the prosecution proves abuse occurred within a reasonable period of time; specific dates of abuse need not be proven); State v. Poole, 489 N.W.2d 537, 543 (Minn.App.1992) (providing “specific dates need not be charged or proven in a sexual abuse case”), aff'd, 499 N.W.2d 31 (Minn.1993). But if each act itself constitutes an element of the crime, “the jury must unanimously agree on which acts the defendant committed.” State v. Stempf, 627 N.W.2d 352, 355 (Minn.App.2001).

Relying on Stempf, appellant argues that the jury should have been instructed to reach a unanimous verdict as to which specific acts appellant committed. In Stempf, the defendant was charged with a single count of methamphetamine possession. Id. at 354. The state introduced evidence at trial that the defendant possessed methamphetamine on two separate occasions and told the jury in closing arguments that it could convict the defendant even if it could not agree on which occasion the defendant possessed methamphetamine. Id. The defendant had separate defenses for each of the occasions on which he was accused of possessing methamphetamine. Id. On appeal, this court reversed Stempf s conviction, stating that “[bjecause the state did not elect which act of possession it was relying on for conviction” the district court’s refusal to give a specific unanimity instruction violated the defendant’s right to a unanimous verdict. Id. at 358. But in Stempf, although only one offense was charged, the defendant’s conduct occurred in two different, known locations. Id. at 354. In this case, appellant was convicted of one count of first-degree criminal sexual conduct and one count of second-degree criminal sexual conduct as to each victim whom he was alleged to have abused over a two-year period, and the jury was instructed only to find whether the acts occurred between August 2003 and August 2005. Unlike Stempf, the prosecution here did not emphasize certain incidents, distinguish as to the proof of some incidents compared to others, or encourage the jury to find certain incidents were more likely to have occurred than other incidents, and appellant did not present separate defenses for each incident of alleged sexual abuse; rather, he simply maintained throughout his trial that he never had sexual contact with either child-victim. The victims referred to a few specific dates in their testimony on which incidents of abuse occurred, but with respect to their testimony and the state’s case as a whole, these recollections served as examples of appellant’s conduct and not distinct allegations of sexual abuse. Based on the particular facts of this case, we conclude that the district court did not err in not instructing the jury that it must unanimously agree on which specific incidents formed the basis of appellant’s convictions.

Appellant attempts to make a separate argument that the jury verdict was unfair because it provides him no way of knowing the alleged act or acts on which he was convicted. He argues that because there was insufficient evidence of some of the alleged acts, his convictions must be reversed. Appellant cites no caselaw supporting his argument and none appears to exist. On the contrary, in State v. Shamp, the supreme court considered this court’s ruling that “it cannot be said with certainty that the jury did not base its finding of guilt partially” on incidents outside the limitations period. 427 N.W.2d 228, 230-31 (Minn.1988) (quotation omitted). The supreme court reversed this court’s ruling, determining that there was “no reasonable likelihood that the jury somehow discredited the victim’s testimony relating to abuse” before the limitations period, yet credited the victim’s testimony relating to abuse after it. Id. at 231. Moreover, a holding that appellant is entitled to know the specifically alleged acts of which he was convicted would run counter to the holding in Becker, that specific dates need not be proven for a defendant to be convicted of sexual abuse. We conclude that appellant’s argument has no merit.

IV. Spreigl Evidence

We review the district court’s decision to admit evidence of past crimes for an abuse of discretion. State v. Gomez, 721 N.W.2d 871, 877 (Minn.2006). Evidence of past crimes or bad acts, referred to as Spreigl evidence, is generally not admissible to show the defendant’s character for committing crimes, but can be admitted to show motive, intent, absence of mistake, identity, or common scheme or plan. Minn. R. Evid. 404(b); State v. Spreigl, 272 Minn. 488, 493, 139 N.W.2d 167, 170 (1965). Spreigl evidence can be admitted only if:

(1) notice is given that the state intends to use the evidence; (2) the state clearly indicates what the evidence is being offered to prove; (3) the evidence is clear and convincing that the defendant participated in the other offense; (4) the Spreigl evidence is relevant and material to the state’s case; and (5) the probative value of the Spreigl evidence is not outweighed by its potential for unfair prejudice.

Gomez, 721 N.W.2d at 877 (quoting State v. Kennedy, 585 N.W.2d 385, 389 (Minn.1998)). “If it is unclear whether Spreigl evidence is admissible, the benefit of the doubt should be given to the defendant and the evidence should be excluded.” Id. “Spreigl evidence ... [must be] substantially similar to the charged offense — determined by time, place and modus oper-andi,” but need not be identical to the charged offense. Kennedy, 585 N.W.2d at 391. But when Spreigl evidence is introduced to show a common plan or scheme, as in this case, it must have a “marked similarity in modus operandi to the charged offense.” State v. Clark, 738 N.W.2d 316, 346 (Minn.2007). Appellant bears the burden of showing the error and any prejudice resulting from it. Kennedy, 585 N.W.2d at 389. When a district court errs in admitting Spreigl evidence, a reviewing court will not reverse unless there is a reasonable possibility that the evidence significantly affected the verdict. Clark, 738 N.W.2d at 347.

Here, the jury was allowed to see limited evidence of appellant’s 1994 gross-misdemeanor conviction for fifth-degree criminal sexual conduct that was later expunged. The Spreigl incident involved appellant, at age 30, and a 15-year-old girl, whom appellant met through a choir. The prosecution and defense stipulated to the manner of presenting this evidence after the district court determined that the evidence was admissible to show a “common scheme.” Appellant now argues that this evidence was admitted erroneously because it was too remote in time, was not “markedly similar” to the charged offense, and was unduly prejudicial to appellant.

As to remoteness in time, the supreme court has upheld the admission of Spreigl evidence as old as 19 years. See State v. Wermerskirchen, 497 N.W.2d 235, 242-43 (Minn.1993) (admitting evidence of several past incidents of abuse against the defendant, the oldest of which occurred 19 years before trial). “The ultimate issue is not the temporal relationship but relevance,” which “generally must be determined by the trial court, with review limited to whether the trial court abused its discretion.” Id. at 242 n. 3. Where, as here, the defendant denies that any sexual contact occurred, and claims fabrication or mistake, the district court may admit Spreigl evidence if it “is satisfied that the other crime is sufficiently relevant to the charged crime.” Id. Nonetheless, “the more distant the Spreigl act is in terms of time, the greater the similarities as to place and modus operandi must be to retain relevance.” State v. Washington, 693 N.W.2d 195, 202 (Minn.2005).

In this case, the places where the incidents occurred are either geographically close or identical; both the 1993 incident and some of the incidents underlying the charged offenses occurred at appellant’s Minneapolis apartment, while the balance of the charged offenses occurred elsewhere in Hennepin and Washington counties. As to similarities in modus operandi, both the Spreigl incident and the charged offenses involved appellant’s sexual abuse of vulnerable minors of similar ages, whom he met through social organizations, at appellant’s apartment. Appellant’s position relative to the victims, as a bass player in a church choir in 1993 and as an after-school program worker in the charged offenses, is not a significant difference. Further, while the 1993 incident was a single incident, the record also shows that the victim in that incident was brought to the police a day after the incident occurred. We conclude that the 1993 incident was sufficiently similar to the charged offenses and, thus, relevant.

Appellant cites State v. Ness, 707 N.W.2d 676, 688 (Minn.2006), in which Spreigl evidence that the defendant had touched the “intimate parts” of a child in the past was held to be irrelevant and, therefore, inadmissible, to support his argument that the Spreigl evidence here is irrelevant. But in Ness, some of the Spreigl evidence was 35 years old and the “[t]he state’s case was strong overall and especially so with regard to dispelling any sense that” the victim’s testimony was fabricated. Id. at 680, 688. In other cases, the admission of Spreigl evidence to rebut the defendant’s charge that a witness’s testimony was fabricated has been affirmed. See Kennedy, 585 N.W.2d at 391; Wermerskirchen, 497 N.W.2d at 242. Here, although the state’s case included a number of witnesses and exhibits, there is no indication that the state’s case was “especially” strong regarding appellant’s primary defense that the victims’ testimony was fabricated.

Appellant also cites Ness in support of his argument that the Spreigl evidence was unfairly prejudicial because the prosecution’s case against him was too strong to justify the admission of Spreigl evidence and because the Spreigl evidence unfairly casts him as a predator of teenage girls. But in Ness, the state already had the testimony of a “very credible” eyewitness to establish a “particularly” strong case as to the issue the Spreigl evidence was admitted to bolster, i.e., the victim’s credibility. 707 N.W.2d at 688. The record here shows no evidence that makes the state’s case “particularly” strong as to whether N.L.’s or A.K.’s accounts of sexual abuse were credible, and the fact that N.L. and A.K. knew each other before their experiences with appellant and communicated with one another before reporting the incidents to authorities may have called into question their credibility, weakening the state’s case. Although the portrayal of appellant as a predator of teenage girls was likely prejudicial to appellant, our analysis of the admissibility of Spreigl evidence focuses on the potential for unfair prejudice, “the capacity of the evidence to persuade by illegitimate means.” Gomez, 721 N.W.2d at 879 (quotation omitted). In this case, there were substantial safeguards against illegitimate persuasion. After initially limiting the prosecution to eliciting only certain facts, the district court accepted the joint stipulation of the prosecution and defense that only the sentencing documents and a copy of the victim’s statement from the 1993 offense would be presented to the jury in lieu of live testimony. The jury was also informed that the conviction was expunged from appellant’s record, and it was properly instructed as to the limited purpose for which the Spreigl evidence could be used. Based on the careful presentation of the Spreigl evidence in this case, we conclude that its potential for unfair prejudice did not outweigh its probative value.

V. Prosecutorial Misconduct

Appellant argues that the prosecutor committed misconduct in characterizing and dramatizing aspects of his actions, by vouching for witness credibility, and by denigrating the defense. Appellant did not object to this conduct at trial. The failure to object implies that the appellant found nothing improper in the closing argument. State v. Daniels, 332 N.W.2d 172, 180 (Minn.1983). This court will not review unobjeeted-to prosecutorial misconduct unless it amounts to error that is (1) plain, i.e., clear or obvious, and (2) affects the defendant’s substantial rights. State v. Ramey, 721 N.W.2d 294, 302 (Minn.2006). The burden is on the defendant to prove that error occurred and that the error was plain. Id. But once the defendant has satisfied this burden, the burden shifts to the state to show that there is “no reasonable likelihood that the absence of the misconduct in question would have had a significant effect on the verdict of the jury.” Id. (quotations omitted). Examples of such misconduct are inflaming the passions and prejudices of the jury, vouching for the credibility of witnesses, and denigrating the defense. Id. at 300.

A prosecutor is not required to make a colorless closing argument. State v. Williams, 586 N.W.2d 123, 127 (Minn.1998). Rather, a prosecutor “has the right to present to the jury all legitimate arguments on the evidence, to analyze and explain the evidence, and to present all proper inferences” that the jury may draw from it. Id. (quotation omitted). But a “prosecutor must avoid inflaming the jury’s passions and prejudices against the defendant.” State v. MacLennan, 702 N.W.2d 219, 235 (Minn.2005) (quotation omitted). The court looks at the closing argument as a whole when considering claims of prosecutorial misconduct. State v. Walsh, 495 N.W.2d 602, 607 (Minn.1993). In cases where credibility is the central issue, as here, special attention should be paid to statements that may prejudice or inflame the jury. State v. Porter, 526 N.W.2d 359, 363 (Minn.1995). “Prosecutors in sexual abuse cases must abide by the highest behavior.” State v. Danielson, 377 N.W.2d 59, 61 (Minn.App.1985) (quotation omitted). Because sexual-abuse cases generally evoke emotional reactions, an attempt by the prosecutor to exacerbate such reactions by making “any emotive appeal” to the jury “is likely to be highly prejudicial.” Id. (quotation omitted).

Appellant argues that the prosecutor’s closing remarks, characterizing his conduct in the form of a classified ad, inflamed the passion and prejudice of the jury. Appellant also argues that the prosecutor’s closing remarks argued facts not in the evidence. See State v. Ferguson, 729 N.W.2d 604, 616 (Minn.App.2007) (holding that it is improper for a prosecutor to mischaracterize evidence or make arguments unsupported by the record), review denied (Minn. June 19, 2007). But a prosecutor may make reasonable inferences from the facts. State v. Gulbrandsen, 238 Minn. 508, 511, 57 N.W.2d 419, 422 (1953). In closing, in addition to quoting from appellant’s e-mail to A.K., the prosecutor described appellant’s conversation with N.L.:

The fact of the matter is he took her outside and he said, [“] I’ve lost angels in my life.[”] That’s the first step. [Let’s] get going with her the same way I got it going with [A.KJ. You fit the criteria, you’re under the age of 16 and you’re in my class and you’re a girl and you’ve got problems at home, baby. I can work with that. I can work with somebody [who’s] down and out, [who’s] thinking about killing herself. Come to me, all you who labor. Come to my apartment.

The prosecution’s reference to the “classified ad” was hypothetical and phrased to the jury as such. In the hypothetical ad, the prosecutor referred to facts on the record, including that appellant bought jewelry and clothing for the victims, treated them to movies, treated A.K. to dinner, and that N.L. had suicidal thoughts. The prosecution’s use of a hypothetical device based on evidence to express its argument to the jury has been held to be permissible conduct. See State v. Barnes, 713 N.W.2d 325, 336 (Minn.2006) (holding that a hypothetical “blow-by-blow” account of an un-witnessed fight in the prosecutor’s closing argument, using qualified language and based on evidence, was not prosecutorial misconduct). In the other examples appellant presents, the statements directly attributable to appellant comprise a small part of the prosecutor’s account of them, and the prosecutor appears to have been characterizing appellant’s motivations in making these statements. Prosecutors are permitted to make reasonable inferences from evidence on the record, to analyze or explain the evidence, and to make legitimate arguments to the jury based on the evidence. State v. Roman Nose, 667 N.W.2d 386, 402 (Minn.2003). The prosecutor’s use of these dramatic devices was an attempt to make reasonable inferences from the record in a persuasive fashion and, as such, was not misconduct.

Appellant also argues that the prosecutor’s closing remarks improperly vouched for the credibility of the complainants. “[V]ouching occurs when the government implies a guarantee of a witness’s truthfulness, refers to facts outside the record, or expresses a personal opinion as to a witness’s credibility.” State v. Patterson, 577 N.W.2d 494, 497 (Minn.1998) (quotation omitted). It is improper for a prosecutor to “personally [endorse] the credibility of the state’s witnesses [or to inject] personal opinion.” State v. Parker, 353 N.W.2d 122, 128 (Minn.1984). In closing, the prosecutor stated, “[t]his is a search for the truth. A search for the truth is what we do in criminal court. And that’s what those two girls testified to.” Appellant argues that in making these statements, the prosecutor improperly vouched for N.L.’s and A.K.’s credibility.

But prosecutors are not prohibited from arguing that certain witnesses are believable. See State v. Gail, 713 N.W.2d 851, 866 (Minn.2006) (concluding that calling a witness “a believable person” and “frank and sincere” was not improper vouching). In State v. Swanson, 707 N.W.2d 645, 656 (Minn.2006), the supreme court drew an important distinction between permissibly addressing witness credibility and impermissibly vouching for a witness. In Swanson, the supreme court held that the prosecutor was not vouching for witnesses by stating that witnesses were “very believable,” but was impermis-sibly vouching for one witness by saying “[t]he state believes [the witness] is very believable.” Id. The Swanson court held that the prosecution may discuss “factors affecting the credibility of the witnesses,” but may not imply that the state endorses a witness’s credibility. Id.; see also State v. Googins, 255 N.W.2d 805, 806 (Minn.1977) (“[A prosecutor has] a right to analyze the evidence and vigorously argue that the state’s witnesses were worthy of credibility.”). In light of Swanson, we determine that the prosecutor here was permissibly arguing in favor of the witnesses’ credibility.

Moreover, the prosecutor followed these statements by arguing that the jury “can look at [the victims’] frankness and their sincerity from the standpoint of how difficult it was for them to be subjected to direct examination by the State and also [cross-examined] by [appellant’s] lawyers.” Placed in this context, the prosecutor’s statement that N.L. and A.K. testified truthfully was a prelude to reminding the jury of the facts they could consider in evaluating the credibility of the victims’ testimony. As such, these statements arguably refer to factors for the jury to consider in assessing credibility, rather than directly vouching for their credibility. See Googins, 255 N.W.2d at 806 (stating prosecution has right to vigorously argue state’s witnesses are credible). Because these statements were used in the context of reviewing the evidence and urging the jury to find N.L. and A.K. credible, we conclude that they were not improper.

Finally, appellant argues that the prosecutor’s closing remarks improperly denigrated the defense. A prosecutor may argue that a defense has no merit in view of the evidence, but may not denigrate a particular defense in the abstract. State v. Salitros, 499 N.W.2d 815, 818 (Minn.1993). Prosecutors act improperly when they “suggest that the arguments of defense counsel are part of some sort of syndrome of standard arguments that one finds defense counsel making in ‘cases of this sort.’ ” Id. In this case, the defense’s closing argument alluded to several incidents where it suggested that the police did not diligently pursue evidence that would have strengthened the state’s case. The prosecutor said in closing that “[the defense suggests] that the police engaged in a rush to judgment. Boy, that term’s never been used in a courtroom before.” While denigrating a particular kind of defense in general is impermissible, a prosecutor may attack the defense’s arguments on their merits. State v. Ashby, 567 N.W.2d 21, 28 (Minn.1997). But here, the prosecutor did not follow this statement by referring to evidence that would rebut the charge that the police “engaged in a rush to judgment,” nor did the prosecution address the facts that the defense used in support of this claim in its closing. Because this statement did not address the merits of the defense’s argument, we conclude that it impermissibly denigrated the defense and amounts to plain error.

Where unobjected-to prosecutorial misconduct results in plain error, the state has the burden to prove that there was no reasonable likelihood that the error could have affected the jury’s verdict. Ramey, 721 N.W.2d at 302. In this case, the statements at issue amounted to two lines in a 29-rpage closing argument. See State v. Tate, 682 N.W.2d 169,178 (Minn.App.2004) (holding that jury was not unduly influenced by improper statements in prosecution’s closing argument amounting to 13 lines of a closing argument transcript that was 25 pages long), review denied (Minn. Sept. 29, 2004). In addition, the record includes substantial evidence against appellant, including the testimony of the victims and several pieces of documentary evidence. The strength of the evidence against appellant indicates that these statements in the closing argument did not have a substantial effect on appellant’s right to a fair trial. See Ashby, 567 N.W.2d at 28 (concluding prosecutorial error was harmless given the strength of evidence against defendant); Walsh, 495 N.W.2d at 607 (concluding that, even where closing argument was “in some respects out-of-bounds,” it is regarded as harmless error unless the misconduct played a substantial role in jury’s decision to convict). We conclude that the state has satisfied its burden of showing that the prosecutor’s denigration of the defense, although it was plain error, did not substantially affect appellant’s rights.

DECISION

Because the record shows that appellant was in a position of authority over his victims; because a child may be “found” under Minn.Stat. § 627.15 where he or she resides, either when the child was abused or when the child reported the abuse; because unanimity of the jury as to specific acts was not-required in this case; because Spreigl evidence of the 1993 incident was not so remote in time or dissimilar to the charged offenses, nor potentially so unfairly prejudicial, as to be inadmissible; and because the prosecutor’s comments were either proper or failed to meet the legal standard for reversible error, we affirm.

Affirmed.

      . First-degree criminal sexual conduct includes sexual penetration with a complainant who is at least 13 years of age but less than 16 years of age and the actor is more than 48 months older than the complainant and in a position of authority over the complainant. Minn.Stat. § 609.342, subd. 1(b) (2002).