                          This opinion will be unpublished and
                          may not be cited except as provided by
                          Minn. Stat. § 480A.08, subd. 3 (2012).

                               STATE OF MINNESOTA
                               IN COURT OF APPEALS
                                     A13-1450

                                    State of Minnesota,
                                       Respondent,

                                             vs.

                                  Dontrell Dyna Flowers,
                                        Appellant.

                                    Filed July 28, 2014
                                         Affirmed
                                       Reyes, Judge

                             Hennepin County District Court
                                File No. 27CR1113822

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Michael O. Freeman, Hennepin County Attorney, Linda K. Jenny, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Jenna Yauch-Erickson,
Assistant Public Defender, St. Paul, Minnesota (for appellant)

       Considered and decided by Kirk, Presiding Judge; Hooten, Judge; and

Reyes, Judge.

                         UNPUBLISHED OPINION

REYES, Judge

       On appeal from his conviction for being a prohibited person in possession of a

firearm, appellant argues that the district court erred by (1) denying his motion to
suppress evidence based on a confidential informant’s tip; (2) suppressing evidence

related to his defense; (3) ruling that his prior felony conviction could be used for

impeachment purposes; and (4) denying his request for an evidentiary hearing regarding

jury misconduct. Appellant also alleges several instances of prosecutorial misconduct.

Because we conclude that the district court did not err, and any prosecutorial misconduct

did not result in prejudice to appellant, we affirm.

                                           FACTS

       On the evening of May 10, 2011, after receiving a tip from a confidential

informant that appellant Dontrell Dyna Flowers was always in possession of a gun, two

police officers engaged in surveillance of a house located in north Minneapolis, which

was the residence of C.P., Flowers’s girlfriend. From their position on the street, the

officers saw a black suburban parked behind the residence and observed Flowers walk

from the house to the vehicle while carrying a multi-colored light-and-dark-blue towel or

two towels. The officers saw Flowers lean into the vehicle at the driver’s door for several

seconds, emerging empty-handed. Flowers got into the vehicle, and police followed him

as he drove away. Another officer initiated a traffic stop and ordered Flowers out of the

vehicle.

       Police searched the vehicle, finding a blue towel in the bottom compartment of the

center console, which was wrapped around a handgun and an extra magazine. Another

towel, in a darker shade of blue, was found on the backseat. When questioned, Flowers

told an officer that he had been at his girlfriend’s house, that he left to go wash her car,




                                              2
and he did not know that the gun was in the car. He also stated that his DNA would not

be on the gun. The recovered gun was never tested for fingerprints or DNA evidence.

       Flowers was charged under Minn. Stat. § 624.713, subds. 1(2) and 2(b) (2010), as

a prohibited person in possession of a firearm. Flowers moved to suppress evidence

obtained as a result of the search and seizure, arguing that the information received from

the confidential informant was not reliable and that police did not have probable cause to

stop, arrest, or search Flowers. The district court denied this motion.

       Before trial, Flowers stipulated that he was a person prohibited from possessing a

firearm. He also moved to suppress evidence of his prior conviction from being used as

impeachment evidence and moved to admit evidence about the history of the gun,

including its link to two prior incidents. The court denied both motions, but limited the

state to impeachment using an unspecified felony conviction only.

       At trial, jurors heard testimony from C.P. and three police officers. C.P. testified

that Flowers was driving her car when he was stopped. She also testified that the

recovered gun was hers, claiming that she had bought it on the street from someone she

knew a couple of weeks before the stop for safety reasons and that she had forgotten to

take it out of her car that day. Flowers waived his right to testify. The jury found

Flowers guilty of being a prohibited person in possession of a firearm.

       After trial, the jury foreperson wrote to the judge expressing concern that one juror

acquiesced to the rest in finding Flowers guilty. Flowers moved for a new trial and a

hearing to impeach the verdict. The district court denied the motions and sentenced

Flowers to 60 months in prison. This appeal followed.


                                             3
                                      DECISION

  I.   Motion to suppress

       On appeal, Flowers states that there was insufficient corroboration of the tip

provided by the confidential informant to establish probable cause for the stop and

search. But because Flowers did not provide an argument with relevant legal authority in

his brief, this issue is waived.

       Flowers’s attempt to incorporate a 15-page memorandum into a brief that is

already 41 pages long is a clear violation of the rules of this court. See Minn. R. Civ.

App. P. 132.01, subd. 3 (providing that, except with good cause and permission of the

court, a principal brief must not exceed 45 pages, unless it contains no more than 14,000

words or 1,300 lines of text and is accompanied by a certificate of compliance with one

of these exceptions). Flowers did not obtain permission from this court to file a brief in

excess of the 45 page limit, nor did he certify that his brief complied with one of the

exceptions to this page limit. In a similar circumstance, the supreme court stated:

               This is a novel, but nonetheless unacceptable attempt to
               expand the page limitation for appellate briefs set out in Rule
               132.01, subd. 3 (1992) of our Rules of Civil Appellate
               Procedure. To be absolutely clear, if these issues were
               important enough to have been reviewed, they should have
               been set forth with specificity within the ample page limit our
               rules permit. As it is, having these issues before the court in
               the manner in which they were raised has not been at all
               helpful in reviewing [the appellant’s] petition.

Indep. Sch. Dist. No. 622 v. Keene Corp., 511 N.W.2d 728, 733-34 (Minn. 1994)

(emphasis added), overruled on other grounds by Jensen v. Walsh, 623 N.W.2d 247

(Minn. 2001). Because Flowers did not brief his probable-cause argument on appeal, it is


                                             4
waived. See State v. Butcher, 563 N.W.2d 776, 780 (Minn. App. 1997) (stating that

issues not briefed on appeal are waived), review denied (Minn. Aug. 5, 1997).

       Even considering this issue in the interest of justice, we find no merit in Flowers’s

contention that the stop and search of the vehicle was unreasonable because the police

lacked probable cause. The district court determined that the stop was justified under the

Terry warrant exception, which requires only a showing of reasonable suspicion, a less-

demanding threshold than probable cause. Terry v. Ohio, 392 U.S. 1, 20-21, 88 S. Ct.

1868, 1879-80 (1968); see State v. Flowers, 734 N.W.2d 239, 351 (Minn. 2007) (stating

that Terry applies to investigative vehicle stops and allows a limited search of a vehicle

for weapons based on reasonable suspicion that the person stopped is engaged in criminal

activity and may gain control of a weapon). Therefore, we conclude that the issue of

probable cause is irrelevant.

II.    Gun history

       Flowers contends that, because he has a constitutional right to present a defense,

the district court erred by not allowing him to present the gun’s history. We disagree.

       Evidentiary rulings rest within the sound discretion of the district court and will

not be overturned absent a clear abuse of discretion, “even when constitutional rights are

implicated.” State v. Pendleton, 706 N.W.2d 500, 510 (Minn. 2005). The district court

“must allow defendants to present evidence that is material and favorable to their theory

of the case,” as long as it is relevant and its probative value outweighs any prejudicial

effect. State v. Crims, 540 N.W.2d 860, 866 (Minn. App. 1995), review denied (Minn.




                                              5
Jan. 23, 1996). The appealing party has the burden to establish an abuse of discretion by

the district court and prejudice resulting from the error. Pendleton, 706 N.W.2d at 510.

       At trial, Flowers sought to admit the testimony of (1) a ballistics expert who would

testify that the gun was used in two prior shooting incidents; (2) a police officer who

would link the gun to a shooting in south Minneapolis in September 2010 and testify to

the suspect’s physical description, which did not match Flowers’s; and (3) a witness to

that incident who would also describe the suspect. The district court refused admission

of this testimony, determining that “[t]he fact that [the gun] apparently was fired at some

point 8 months prior” is not relevant and “the fact that the gun was used in a prior

incident, perhaps a crime,” is prejudicial.

       Flowers contends that this evidence is relevant to “the theory of defense . . . that

[C.P.] plausibly could have bought, without a permit, a gun floating around on the streets

that had no connection to [Flowers] and was never obtained or used by him.” But to

prove that Flowers was a prohibited person in possession of a firearm, the state only had

to prove that Flowers knowingly possessed the gun on the date that he was stopped. See

10A Minnesota Practice, CRIMJIG 32.17 (2013) (listing the elements of felon in

possession of a firearm). Whether C.P. owned the gun, though not dispositive, is relevant

to Flowers’s knowledge of the gun. But the gun’s involvement in a crime several months

earlier, before C.P. purchased it, does not have any tendency to make the existence of

Flowers’s knowledge of possession or C.P.’s purchase of the gun on the street more or

less probable than it would be without the testimony. See Minn. R. Evid. 401 (defining

“relevant evidence” as “evidence having any tendency to make the existence of any fact


                                              6
that is of consequence to the determination of the action more probable or less probable

than it would be without the evidence”).

       Flowers also argues that any prejudice created by this evidence would have been

to the state, making it unfair for the court to impede his constitutional right to present a

defense. But even if the gun’s history had some probative value, the undue prejudice and

confusion to the jury caused by admitting evidence of potential criminal activity, which

was unrelated to the issues at trial, outweighed any probative value. Moreover, the

district court allowed C.P.’s testimony about how, where, and why she bought the gun on

the street, which directly related to Flowers’s defense. The district court did not abuse its

discretion by excluding evidence about the gun’s history prior to C.P.’s purchase.

III.   Impeachment evidence

       Flowers argues that the district court erred by ruling that his prior conviction could

be used as impeachment evidence if he chose to testify, contending that it undermined his

right to stipulate that he was a person prohibited from possessing a firearm. Flowers also

asserts that the district court’s reference to State v. Hill, 801 N.W.2d 646 (Minn. 2011), to

explain its decision to limit impeachment by reference to an unspecified felony

conviction, improperly negates the Jones analysis. State v. Jones, 271 N.W.2d 534, 538

(Minn. 1978) (listing five factors that the district court must consider in determining

whether to admit impeachment evidence against a defendant). We disagree.

       The district court’s ruling on the impeachment of a witness by prior conviction is

reviewed, as are other evidentiary rulings, under a clear-abuse-of-discretion standard.

State v. Ihnot, 575 N.W.2d 581, 584 (Minn. 1998). Evidence that a defendant has been


                                              7
convicted of a felony is admissible for impeachment if the district court “determines that

the probative value of admitting this evidence outweighs its prejudicial effect.” Minn. R.

Evid. 609(a)(1). In making this determination, the court considers the Jones factors:

              (1) the impeachment value of the prior crime, (2) the date of
              the conviction and the defendant’s subsequent history, (3) the
              similarity of the past crime with the charged crime (the
              greater the similarity, the greater the reason for not permitting
              use of the prior crime to impeach), (4) the importance of
              defendant’s testimony, and (5) the centrality of the credibility
              issue.

State v. Swanson, 707 N.W.2d 645, 654 (Minn. 2006) (quoting Jones, 271 N.W.2d at

538). “If a court finds that the prejudicial effect of disclosing the nature of a felony

conviction outweighs its probative value, then it may still allow a party to impeach a

witness with an unspecified felony conviction if the use of the unspecified conviction

satisfies the balancing test of Rule 609(a)(1).” Hill, 801 N.W.2d at 652-53.

       Flowers contends that the court’s analysis of the Jones factors “was nothing short

of boilerplate reasoning.” But the record shows that the district court gave adequate

consideration to each factor. In deciding whether to allow Flowers’s prior conviction to

be used as impeachment evidence, the district court determined that (1) admitting

evidence of Flowers’s prior conviction would allow “the jury to see the whole person of

the defendant and better evaluate his or her truthfulness,” Swanson, 707 N.W.2d at 655

(quotation omitted); (2) the prior conviction was remote and Flowers did not have much

subsequent criminal history, weighing against admissibility; (3) the charged crime of

being a prohibited person in possession of a firearm was very different from the prior

conviction for aiding and abetting a homicide; (4) because Flowers had other witnesses to


                                              8
tell his story, his testimony was not as important; and (5) credibility was a key issue in

this case.

       Flowers maintains that the whole-person theory for evaluating impeachment value

should be rejected by this court, but this is an accepted analysis on just one factor to be

considered by the district court and does weigh in favor of admissibility. Swanson, 707

N.W.2d at 655. Additionally, the fact that Flowers’s prior conviction was remote is not

dispositive because he was released from prison in 2004, so it fell within the 10-year

window of admissibility. See Minn. R. Evid. 609 (“Evidence of a conviction . . . is not

admissible if a period of more than ten years has elapsed since the date of the conviction

or of the release of the witness from the confinement imposed for that conviction . . . .”).

And because Flowers intended to introduce his defense-theory evidence through C.P.,

Flowers’s testimony was not of central importance since he expressed that he would just

corroborate C.P.’s testimony. Finally, credibility was key, as Flowers concedes, because

he was the only person in the car when police recovered the gun and knowledge of the

gun was central to the charged crime. See State v. Smith, 669 N.W.2d 19, 29 (Minn.

2003) (citing Ihnot, 575 N.W.2d at 587) (stating that the fourth and fifth factors of the

Jones analysis are satisfied if the defendant’s credibility is a central issue in the case),

overruled by State v. Leake, 699 N.W.2d 312 (Minn. 2005); State v. Gassler, 505 N.W.2d

62, 67 (Minn. 1993) (stating that the importance-of-defendant’s-testimony factor supports

exclusion of impeachment evidence if, by admitting it, a defendant’s account of the

events would not be heard by the jury).




                                               9
       Flowers also contends that, because his prior conviction and the present charge

involve guns, admitting the prior conviction would lead the jury to believe that he is a

person who is around guns. This argument has no merit because the state was not

allowed to impeach with the substance of the prior crime. See State v. Pendleton, 725

N.W.2d 717, 728-29 (Minn. 2007) (“The concern weighing against admission with this

factor is that the jury will use the convictions as substantive evidence, in addition to

impeachment evidence.”). The district court used the nature of Flowers’s prior

conviction to determine that it had probative value under Jones and weighed this against

its assessment that “[t]he title of the prior conviction is . . . highly prejudicial to the

defendant” in deciding that the state could impeach with an unspecified felony conviction

only. This follows the ruling in Hill, where the supreme court determined that the district

court did not abuse its discretion by allowing an unspecified felony conviction to be used

for impeachment purposes after “[w]eighing all of the [Jones] factors [and] conclud [ing]

that the probative impeachment value of a sanitized version of Hill’s felony conviction

outweighed its prejudicial effect.” 801 N.W.2d at 653. Likewise, the district court did

not abuse its discretion by allowing Flowers to be impeached with his prior conviction

based on the court’s determination that the probative value of the prior conviction

outweighed the risk of prejudicial effect of admitting an unspecified felony conviction.

IV.    Juror misconduct

       Flowers argues that the district court erred by denying his request for a Schwartz

evidentiary hearing regarding juror misconduct, alleging that his constitutional right to a

fair trial by an impartial jury had been violated. We disagree.


                                               10
       This court reviews the denial of a Schwartz hearing for an abuse of discretion.

State v. Church, 577 N.W.2d 715, 721 (Minn. 1998). The purpose of a Schwartz hearing

is “to avoid harassment of jurors and to provide a record on appeal in cases where, after

the jury renders the verdict, the losing party becomes aware of facts which indicate the

possibility of jury misconduct.” State v. Larson, 281 N.W.2d 481, 484 (Minn. 1979)

(quotation omitted). The requesting defendant must establish a prima facie case of juror

misconduct by submitting “sufficient evidence which, standing alone and unchallenged,

would warrant the conclusion of jury misconduct.” Id.

       Flowers only cites the jury foreperson’s letter as evidence of potential juror

misconduct. In his letter, the foreperson expressed concern that after a series of split

votes and at the end of the day on a Friday, the sole remaining not-guilty-voting juror

acquiesced to the other jurors, even though he stated that he did not believe there was

enough proof to establish that Flowers knew the gun was in the vehicle. This is not

sufficient evidence to establish a prima facie case of juror misconduct. “Evidence of

what happened in the jury room is inadmissible, except that evidence of improper

extraneous prejudicial information, outside influence, or threats of violence or violent

acts is admissible. Evidence of psychological intimidation, coercion, and persuasion is

not admissible.” State v. Jackson, 615 N.W.2d 391, 396 (Minn. App. 2000) (citing Minn.

R. Evid. 606(b) and cmt. (emphasis omitted)), review denied (Minn. Oct. 17, 2000). We

expect that jurors commonly feel pressure at some point during deliberations, which may

have been the situation in this case, but there is no evidence of extraneous prejudicial

information, outside influence, or threats of violence here. Because the only evidence


                                             11
presented to the district court does not establish juror misconduct, it did not abuse its

discretion by denying Flowers a Schwartz hearing.

 V.    Prosecutorial misconduct

       Flowers argues that the prosecutor committed misconduct, denying him a fair trial,

by (1) failing to prepare witnesses; (2) failing to prepare for the case; (3) vouching for

witnesses; (4) inflaming the jury’s passions; and (5) misstating the burden of proof.

       “We review prosecutorial misconduct to determine whether the conduct, in light of

the whole trial, impaired the defendant’s right to a fair trial.” State v. Milton, 821

N.W.2d 789, 802 (Minn. 2012) (quotation omitted). When comments made in closing

argument are challenged, this court will evaluate the closing argument as a whole.

Swanson, 707 N.W.2d at 656.

       For objected-to prosecutorial-misconduct claims, this court applies one of two

harmless-error standards. State v. Watson, 829 N.W.2d 626, 630 (Minn. App. 2013)

(citing State v. Caron, 300 Minn. 123, 127-28, 218 N.W.2d 197, 200 (1974)), review

denied (Minn. June 26, 2013). In cases involving less-serious prosecutorial misconduct,

this court considers “whether the misconduct likely played a substantial part in

influencing the jury to convict.” Caron, 300 Minn. at 128, 218 N.W.2d at 200. In cases

involving “unusually serious” misconduct, this court asks if it is certain beyond a

reasonable doubt that the misconduct was harmless. Id. For unobjected-to prosecutorial

misconduct, we have discretion to review for plain error. Minn. R. Crim. P. 31.02; State

v. Ramey, 721 N.W.2d 294, 299 (Minn. 2006). To establish plain error, the appellant

must demonstrate that the prosecutor’s unobjected-to act constitutes error and the error


                                              12
was plain. Ramey, 721 N.W.2d at 302. “Usually [plain error] is shown if the error

contravenes case law, a rule, or a standard of conduct.” Id. If the appellant establishes

plain error, the burden then shifts to the state to demonstrate lack of prejudice on the

defendant’s substantial rights from the error. State v. Martin, 773 N.W.2d 89, 104 (Minn.

2009). This burden is met if the state can show that there is no reasonable likelihood that

the misconduct had an effect on the jury’s verdict. Ramey, 721 N.W.2d at 302.

       A.     Failing to prepare

       “The state has a duty to prepare its witnesses, prior to testifying, to avoid

inadmissible or prejudicial statements.” State v. McNeil, 658 N.W.2d 228, 232 (Minn.

App. 2003). And a prosecutor may not intentionally elicit inadmissible testimony from

the state’s witnesses. State v. Haglund, 267 N.W.2d 503, 506 (Minn. 1978). But

“unintended responses under unplanned circumstances ordinarily do not require a new

trial.” State v. Hagen, 361 N.W.2d 407, 413 (Minn. App. 1985), review denied (Minn.

Apr. 18, 1985).

       Flowers contends that the prosecutor committed misconduct by failing to instruct

to an officer, who almost testified about the confidential informant despite the district

court’s order that such evidence was inadmissible. But this was an unintentional

response to the prosecutor’s question and the defense interrupted with an objection before

the officer said anything about the confidential informant or even used those words. The

record shows that the prosecutor instructed the state’s witnesses not to refer to the

confidential informant, and the jury never heard any mention of the confidential

informant at trial. As a result, there was no error.


                                             13
       Flowers also contends that the prosecutor committed misconduct by admitting

magazines and ammunition into evidence without verifying the chain of custody.

Flowers argues that these items were “effectively published” to the jury when the

prosecutor asked two officers to identify the exhibits, and Flowers contends that the error

was not harmless because the jury expressed interest in seeing the magazines during

deliberations. We are unconvinced that there was any error here because these exhibits

were not actually admitted into evidence or published to the jury, and there is nothing in

the record suggesting that the prosecutor knowingly tried to admit inadmissible evidence.

       But even if the prosecutor committed misconduct by failing to verify the chain of

custody before trial, it was harmless. Photos of the magazines and ammunition were

admitted into evidence without objection and defense witness, C.P., commented on the

magazines several times in her testimony. Additionally, aside from asking witnesses to

identify the magazines and ammunition for evidentiary purposes, the state did not

comment on these items. See Tucker v. State, 309 Minn. 482, 487, 245 N.W.2d 199, 202

(1976) (holding that there was no reversible error where a shotgun was displayed in the

courtroom because there was other evidence relating to the shotgun and “the prosecutor

did not in any way call the weapon to the jury’s attention or suggest anything about it.”).

       B.     Vouching for witnesses

       “A prosecutor may not personally endorse the credibility of a witness or impliedly

guarantee a witness’s truthfulness.” State v. Jackson, 714 N.W.2d 681, 696 (Minn.

2006). But, during closing arguments, a prosecutor may properly present arguments

about why particular witnesses should be perceived as credible or incredible so long as he


                                            14
does not “impl[y] a guarantee of a witness’s truthfulness, refer[] to facts outside the

record, or express[] a personal opinion as to a witness’s credibility.” State v. Patterson,

577 N.W.2d 494, 497 (Minn. 1998) (quotation omitted).

       Flowers argues that the prosecutor committed misconduct in his closing argument

by vouching for the honesty of the police officers who testified by contending that the

officers had no motive to fabricate their testimony and by stating, “[t]hey were not

polished witnesses. And they were not polished witnesses despite some of my efforts

pretrial to polish them up a bit. . . . And I submit to you that in their simplicity, you find

their honesty.” Flowers did not object at trial.

       The prosecutor’s statements did not constitute impermissible vouching because he

merely argued that the officers were credible, not that he or the state believes they were

credible. See Swanson, 707 N.W.2d at 656 (holding that a prosecutor’s statement that a

person had made a “[v]ery believable witness” was permissible, while the prosecutor’s

statement that the “state believes [that a second witness] is very believable” was

impermissible). Though the use of “I” statements typically indicates the prosecutor’s

personal opinion, State v. Leutschaft, 759 N.W.2d 414, 425 (Minn. App. 2009), review

denied (Minn. Mar 17, 2009), and the prosecutor in this case briefly went outside of the

record by stating that he tried to polish up the officers’ testimony, these statements were

not an endorsement of the officers’ credibility, relating instead to the prosecutor’s general

argument as to why the jury should perceive these witnesses as credible. Though the

prosecutor was walking a fine line, Flowers has not met his burden of demonstrating that




                                              15
the prosecutor committed an error in violation of a law, rule, or standard of conduct, and

therefore, Flowers did not establish plain error.

       C.     Inflaming passions of jury

       A “prosecutor must avoid inflaming the jury’s passions and prejudices against the

defendant.” State v. Porter, 526 N.W.2d 359, 363 (Minn. 1995). “The state should

refrain from . . . making arguments that would divert the jury from its duty to decide a

case on the evidence by injecting issues broader than a defendant’s guilt or innocence

into the trial.” State v. Dobbins, 725 N.W.2d 492, 512 (Minn. 2006) (citation omitted).

“It is well-settled that the state has a right to vigorously argue its case, but the state may

not denigrate a particular type of defense.” State v. MacLennan, 702 N.W.2d 219, 236

(Minn. 2005) (citations omitted). “A prosecutor’s closing argument should be based on

the evidence presented at trial and inferences reasonably drawn from that evidence.”

State v. DeWald, 463 N.W.2d 741, 744 (Minn. 1990).

       In his closing argument, after discussing a line of questioning posed by defense

counsel to one of the police officers about whether the gun was deliberately not tested for

DNA and fingerprints, the prosecutor urged the jury to reject any argument from the

defense that tried to “shake [their] faith in the police and their system of investigation and

evidence gathering,” and commented on a statement made by a juror during jury selection

that he has faith in the judicial system. Flowers did not object at the time, but on appeal

argues that this inflamed the passions of the jury by harnessing a theme about belief in

the justice system and “accus[ing] the defense of fabricating a police conspiracy to lie.”

We disagree because Flowers cannot satisfy the burden of establishing plain error.


                                              16
          While the prosecutor’s statements started by addressing a broader idea of the

integrity of the justice system, the prosecutor did not implore the jury to convict Flowers

based on their belief in the justice system, but pointed out that the evidence was sufficient

for conviction and the police had no motive to fabricate testimony, even though there

were mistakes in this case. Porter, 526 N.W.2d at 364 (stating that the state’s arguments

must be based on evidence produced at trial, or reasonable inferences from that evidence,

but need not be “colorless”); see State v. Graham, 764 N.W.2d 340, 356-57 (Minn. 2009)

(rejecting argument that the prosecutor engaged in misconduct by asking for justice for

the victims, concluding that the state asked the jury to seek justice based on the evidence

and not to inflame passions). In stating that defense counsel would try to shake the jury’s

faith in the justice system, the prosecutor permissibly addressed the merits of Flowers’s

defense, urging the jury to base its verdict on the evidence presented by the state and not

the inferences put forward by Flowers. See State v. McDaniel, 777 N.W.2d 739, 752

(Minn. 2010) (stating that arguing that a particular defense has no merit is permissible).

Flowers has not shown error.

          D.    Burden of proof

          “Misstatements of the burden of proof are highly improper and would, if

demonstrated, constitute prosecutorial misconduct.” State v. Hunt, 615 N.W.2d 294, 302

(Minn. 2000). Flowers contends that the prosecutor made unobjected-to misstatements

about the standard for proof beyond a reasonable doubt in his closing argument when he

stated:




                                              17
              In your lives when you’re facing such decisions, do you have
              doubts along the way? Certainly. And are your doubts
              reasonable? Certainly. But ultimately you’ve been able to
              make decisions to buy a house, to have children, to move, to
              have surgery, despite the reasonable doubts you had about
              your decisions. You’ve been able to make decisions despite
              not having certainty beyond all doubt.

And when he stated, “you’ll find that when you deliberate on this case, you will not go

beyond your reasonable doubts about it.” But in addition to these comments, the

prosecutor correctly told the jury that beyond a reasonable doubt is the state’s burden of

proof and articulated the difference between “beyond all doubt” and “beyond a

reasonable doubt.” And the prosecutor explained that in applying the latter standard, the

jury can reach a guilty verdict without forensic evidence because certainty beyond all

doubt is not necessary. Moreover, these comments were preceded by the prosecutor’s

statement that the standard is “beyond a reasonable doubt[,] [n]ot beyond all doubt.”

While the prosecutor’s closing argument contained some inartful statements about the

burden of proof, overall, his extensive discussion on the issue was not a misstatement of

the law. See State v. Taylor, 650 N.W.2d 190, 208 (Minn. 2002) (stating that “[a]

reviewing court considers the closing argument as a whole and does not focus on

selective phrases” taken out of context).

       Even if the prosecutor did misstate the law, the jury was properly and repeatedly

instructed on the state’s burden of proof by the district court. See State v. Trimble, 371

N.W.2d 921, 926-27 (Minn. App. 1985) (concluding that error in misstatement of

presumption of innocence was harmless where jury received proper instructions), review

denied (Minn. Oct. 11, 1985). The district court also instructed the jury to disregard any


                                             18
statement of law by an attorney that differed from that made by the court. See State v.

Shoen, 578 N.W.2d 708, 718 (Minn. 1998) (reviewing court will presume that jurors

follow the district court’s instructions). When the instructions are read as a whole and the

statements are taken in context, it is unlikely that any misstatements of law by the

prosecutor affected the jury’s verdict.

       Affirmed.




                                             19
