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STATE OF MINNESOTA IN SUPREME COURT A06-857 Court of Appeals Anderson, G. Barry, J. Took no part, Magnuson, C.J.

State of Minnesota, Appellant, vs. Charles Howard McCray, II, Respondent. SYLLABUS The prosecutor did not commit misconduct by discussing the inconsistency between the alleged victims pretrial statement to police and her trial testimony when the district court dismissed one charge based on this inconsistency and instructed the jury that neither the court nor the attorneys would "address these matters further." Reversed. Heard, considered, and decided by the court en banc. OPINION ANDERSON, G. Barry, Justice. Respondent Charles Howard McCray II was charged with first- and second-degree criminal sexual conduct against T.C., the 7-year-old daughter of his girlfriend. But because T.C.s trial testimony was inconsistent with her pretrial statement regarding 1 Filed: July 31, 2008 Office of Appellate Courts

penetration, the district court dismissed the first-degree charge.

Before closing

arguments, the court instructed the jury that the penetration matter had been resolved and that "[n]either the attorneys nor I will address these matters further." During the States closing argument, however, the prosecutor made several references to T.C.s pretrial statement regarding penetration. McCray argued that these references violated the

courts instruction. Although the court did not find that the prosecutor violated the courts order or otherwise committed misconduct, the court nonetheless permitted McCray to address matters pertaining to penetration as a "cure" for any confusion that had been created. The court of appeals held that the references to penetration during the States closing argument constituted prosecutorial misconduct, and that this misconduct warranted a new trial. State v. McCray, No. A06-857, 2007 WL 2034268, at *1-2 (Minn. App. July 17, 2007). We conclude that the prosecutor did not violate the district courts instruction or otherwise engage in misconduct in this case. Accordingly, we reverse. In September 2005, McCray was living with his girlfriend, S.C., and her three children. McCray took care of the children while S.C. was working and attending nursing school. Because S.C. had nursing clinicals on Thursday and Friday mornings, McCray was responsible for getting the children ready for school on those days. At some point during September, S.C. noticed changes in the behavior of T.C., her 7-year-old daughter, and began to suspect that T.C. had been sexually abused. On September 24, S.C. asked T.C. whether anyone had ever touched her; T.C. answered, "Yes." During the ensuing conversation, T.C. told S.C. that near the beginning of the school year, McCray 2

asked her to come downstairs to his bedroom, take off her nightgown, and crawl into bed with him. T.C. told S.C. that McCray "touched her privates, and then he put her on top of him, and he was moving her back and forth." T.C. repeated this account during an interview with a police officer later that night. She also informed the officer that when McCray touched her private parts, he had his hand under her underwear and that "[h]e took his hands and put it inside of me." In response to a later question from the officer, T.C. agreed that McCray had "put his finger inside [her] private part." Although T.C. could not remember the exact date of the incident, she stated that it was "[n]ot so long ago," it was in the morning on a school day, and her mom was at work. Based on T.C.s allegations, McCray was charged with one count of first-degree criminal sexual conduct pursuant to Minn. Stat.

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