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STATE OF MINNESOTA IN COURT OF APPEALS A09-243 State of Minnesota, Respondent, vs. Brett David Borg, Appellant. Filed March 9, 2010 Reversed and remanded Stauber, Judge Mille Lacs County District Court File No. 48K604001375 Lori Swanson, Attorney General, St. Paul, Minnesota; and Jan Kolb, Mille Lacs County Attorney, Milaca, Minnesota (for respondent) Marie Wolf, Interim Chief Public Defender, Jodie L. Carlson, Assistant Public Defender, St. Paul, Minnesota (for appellant) Considered and decided by Minge, Presiding Judge; Schellhas, Judge; and Stauber, Judge. SYLLABUS Testimony in the states case-in-chief concerning the accuseds pre-counseled, pre-arrest, and pre-Miranda silence is not admissible. OPINION STAUBER, Judge Appellant challenges his conviction of third-degree criminal sexual conduct on the grounds that: (1) the evidence was insufficient to sustain his conviction; (2) the district

court erred in ruling that the state could elicit evidence of appellants pre-arrest silence in the states case-in-chief before appellant testified; (3) the prosecutor engaged in prejudicial misconduct; (4) the district court abused its discretion in refusing to impose a dispositional departure based on appellants lack of remorse when the record otherwise supported a departure; and (5) he is entitled to specific performance of the states plea offer. Because the district court erred in allowing the state to comment on appellants pre-arrest silence and because we conclude the error was not harmless, we reverse and remand. FACTS On May 6, 2004, J.S. celebrated her 18th birthday at Grand Casino in Mille Lacs with her 18-year-old girlfriends, K.K. and D.C., and her 19-year-old girlfriend, M.W. D.C.s mother provided the girls with a room at the casino hotel, and D.C.s 25-year-old brother, S.C., along with his 24-year-old friends, Brett Borg (appellant) and T.B., met the girls at the casino. J.S. and S.C. were dating, and M.W. and appellant had met a few times previously. In light of their previous contact, M.W. considered appellant to be an acquaintance. The group gambled at the casino and drank beer and Grape Pucker (an alcoholic beverage) in the hotel room and then decided to go swimming at nearby Eddys Resort. They stayed at Eddys for about an hour, "goofin around" and having fun at the pool. Some brought beer to the pool, and appellant poured M.W. a beer. After swimming, the group returned to their hotel. J.S. and S.C. retired to their own room, and the rest of the group stayed in the room that had been "reserved for [the] 2

girls." D.C. and K.K. slept in one bed, and T.B., M.W., and appellant slept in the other bed. Shortly after going to bed, appellant and M.W. had sexual intercourse. The next morning, J.S. came into the room and told M.W. that she heard that M.W. had sex with appellant. M.W. responded by telling J.S. that she could not have had sex because she was menstruating. However, M.W. then realized that she was missing her tampon. According to M.W., she became very upset and told J.S. that she had not consented to sex with appellant. J.S. and M.W. subsequently discussed the possibility that appellant had used a date-rape drug, and that theory was relayed to D.C., who had been in the casino gambling. D.C. then confronted appellant, who was still sleeping, by hitting him in the face. "[S]hocked" by the punch and the allegations, appellant got out of bed and left the hotel. M.W.s parents arrived at the hotel and took M.W. to the hospital where a sexual assault examination was performed and M.W. was tested for three common date-rape drugs. The tests for the date-rape drugs came back negative, but the sexual-assault examination showed the presence of semen. Subsequent tests revealed that the DNA in the semen matched the DNA sample provided by appellant. Based on M.W.s allegation that she did not consent to sex, appellant was arrested and charged with one count of third-degree criminal sexual conduct in violation of Minn. Stat.

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