The only misconduct here is the trial court's grant of a verdict of acquittal

State v. McCray, II, 753 N.W.2d 746, Minn., July 31, 2008

The state charged Mr. McCray with first and second degree criminal sexual conduct against the seven year old daughter of his girlfriend. The seven year old’s trial testimony regarding penetration, however, was inconsistent – indeed, just the opposite – of her statement to police so the trial court dismissed the first degree count; penetration was an element of that offense.

The Court of Appeals reversed Mr. McCray’s conviction on the basis of prosecutorial misconduct and remanded for a new trial. The Supreme Court reinstates the conviction. Along the way, it chides the trial court for its dismissal of the first degree count. The court points out that the seven year old’s statement to police had been admitted as substantive evidence under Minn.Stat. 595.02. Consequently, the trial inconsistency in her testimony became a fact/credibility issue for the jury to determine:

Because [the seven year old’s] prior statement alleging penetration was not admitted under the residual hearsay exception, it is unclear how the state’s failure to satisfy the [State v.] Ortlepp, [363 N.W.2d 39 (Minn. 1985)] factors could impact the decision of whether to dismiss the first-degree penetration charge.

Presumably, the court draws this conclusion, in order to chastise the lower court, because trial counsel either failed to object to the admission of the police statement or failed to request a limiting instruction.