                           This opinion will be unpublished and
                           may not be cited except as provided by
                           Minn. Stat. § 480A.08, subd. 3 (2014).

                                STATE OF MINNESOTA
                                IN COURT OF APPEALS
                                      A14-1941

                                    State of Minnesota,
                                       Respondent,

                                             vs.

                                    Cedric Chappell, Jr.,
                                        Appellant.

                                 Filed January 4, 2016
                    Affirmed in part, reversed in part, and remanded
                                       Ross, Judge

                              Hennepin County District Court
                                File No. 27-CR-13-32197

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, St. Paul, Minnesota (for
appellant)


         Considered and decided by Ross, Presiding Judge; Chutich, Judge; and Hooten,

Judge.

                          UNPUBLISHED OPINION

ROSS, Judge

         This case arises from a Minneapolis shootout killing one man and injuring another.

A jury found Cedric Chappell Jr. guilty of second-degree murder and attempted murder for
the benefit of a gang and first-degree riot for his involvement in a shooting outside a

nightclub. Chappell contends that the state failed to prove beyond a reasonable doubt that

he engaged in the misconduct for the benefit of a gang and that he is entitled to a new trial

because of alleged deficiencies in the district court’s instructions and alleged prosecutorial

misconduct. Chappell also maintains that the district court erroneously sentenced him on

the first-degree riot conviction. We conclude that the verdict rests on sufficient evidence

and that the district court’s instructions did not prejudice Chappell’s substantial rights.

Although Chappell’s contention that the prosecutor committed misconduct finds support

in the record, we do not order a new trial because the prosecutor’s conduct did not infringe

Chappell’s substantial rights. But we reverse and remand for resentencing because, as the

state concedes, the district court committed plain error by sentencing Chappell for the first-

degree riot conviction.

                                          FACTS

       The state charged Cedric Chappell with first-degree riot, second-degree murder for

the benefit of a gang, and second-degree attempted murder for the benefit of a gang for a

shooting outside a nightclub in south Minneapolis. The melee began with a skirmish inside

the crowded Blue Nile at bar-closing time and then spilled outside where it erupted into

multiple brawls. Police arrived and officers showered the crowd with pepper spray to

suppress the fighting. Satisfied that the crowd was sufficiently diminished and the fight

was over, police left. But the group had not fully dispersed and within half an hour the

conflict intensified and police, still nearby, heard numerous gunshots and returned. The

shooting left one man dead and another wounded in the leg.


                                              2
       At trial M.H., the wounded man, testified about the fight that continued after police

left the immediate area. He said that Chappell ran up to him and W.S., the deceased man,

and shot them. Chappell testified differently. He said that he was present in the nightclub

when the skirmish began and present outside when the shooting occurred. He admitted that

he fired a gun, that he was standing near people who he knew were members of a gang,

and that he shot in the same direction they were shooting. But he said he was acting in self-

defense and never left his spot in a parking lot across the street from where M.H. and W.S.

were shot. The state did not commit to either theory particularly. It maintained alternatively

that Chappell was guilty because he ran up and killed W.S. and injured M.H. or because

he shot at them from across the street, possibly hitting them himself or at least aiding two

other shooters who were gang members who shot W.S. and M.H. The state also maintained

that, under either theory, the shooting resulted from an altercation between two gangs (the

“Tens” and the “DTs”).

       Chappell testified in his own defense. He explained that he grew up in Minneapolis

and was back in town visiting on a break from a North Dakota college where he attended

school and played football. He said he went to the Blue Nile to attend a rap performance

by a friend, A.W. He knew that his friends A.W., C.W., C.D., and others with them that

night, were members of a gang known as “the Tens.” He told the jury that he became

involved in an argument outside the nightclub, that he heard others mention going to get

guns, and that he crossed the street and entered a lot where his friend C.D. handed him a

gun from his car. He said that P.L., another Tens member, fired first, along with someone

he knew only as Malcolm (or Mauricio), also a Tens member. Chappell testified that during


                                              3
the shooting he saw men ducking behind cars coming toward him. He said that he thought

they might be the men he had argued with and that they might be shooting at him. Chappell

also testified that a man (who by his attire was apparently W.S., the man who was killed)

came out of the nightclub with a gun and began shooting. Chappell insisted that he was

defending himself, saying that he fired two or three times from the parking lot across from

the nightclub and then turned around and ran for his car. He denied that he ran toward M.H.

and shot him.

       M.H. gave the jury a different account. M.H. hosted the rap concert and brought his

friend W.S. to the performance. He testified that when he and W.S. exited the nightclub

after closing, he saw two people pointing at something and then saw P.L. shooting, but not

in his direction. M.H. said that when the shooting began, he ducked in front of a car while

W.S. tried unsuccessfully to reenter the nightclub. M.H. said that he saw someone wearing

a red shirt and standing beside P.L., and he later learned that the man was Cedric Chappell.

M.H. said he started running down an alley and then heard footsteps behind him. He turned

around and saw Chappell. He told the jury that Chappell shot him in the leg, dropping him

to the ground. M.H. said that he got up and again began to run. He saw W.S. running

behind the nightclub.

       Sergeants Christopher Gaiters and Robert Dale testified about their interview with

Chappell. Both officers testified that Chappell said the underlying dispute was between

two gangs, naming the Tens and the DTs. Sergeant Gaiters testified that C.D., who

Chappell testified had handed him a handgun, was identified in law-enforcement databases

as being associated with the Tens. Sergeant Dale testified that Chappell had identified P.L.


                                             4
and Malcolm as other shooters and Tens members. Sergeant Dale also stated that Chappell

told them he heard from P.L. and Malcolm about a death from the shooting.

       P.L., a self-professed Tens member, also testified. P.L. admitted being present and

firing his gun. He told the jury he shot into the air. The jury learned that the state had

charged P.L. with two crimes for his involvement in the shooting: first-degree riot and

being a prohibited person in possession of a firearm. And the jury learned that P.L. received

a favorable plea deal in exchange for his testifying. P.L. testified that he began shooting

because others were arguing with the Tens. He said that Chappell knew that P.L. was a

member of the Tens and that Chappell was on the Tens’ side in the fight because he also

was arguing with and shooting at the competing group.

       P.L. shared a jail unit with C.R., whom the state called to testify. C.R. told the jury

that the Tens had fought with a group from north Minneapolis at the nightclub. C.R. stated

that P.L. told him that a guy named “Ced” had shot at and hit someone and chased another

person.

       Officer Jaclyn Tuma testified. She specializes in investigating gang crimes. Officer

Tuma described the Tens as a south-side Minneapolis gang and the DTs as a primarily

north-side Minneapolis gang. She explained that gang participation ranges from operating

in the gang as a member to merely currying favor with the gang as a nonmember. Officer

Tuma told the jury that one commonly gains a gang’s respect by being “especially violent,

to carry guns, to shoot guns, to kind of feud with other gang members, to act on perceived

slights.” She testified that Chappell had a documented history with P.L., A.W., C.W., and




                                              5
C.D., and that these four are all known Tens members. And she said that one of the rap

performers that night was associated with the DTs.

       The state presented physical evidence, primarily bullet casings found outside the

nightclub. A forensic scientist specializing in ballistics testified that the casings indicated

that the shooting involved at least four different guns. Three sets of casings were found in

a parking lot across from the nightclub and a fourth set of casings was found in a residential

area on a sidewalk north of the nightclub. Four shell casings were also found in the street

near the nightclub close to two of the groupings of casings in the parking lot, near where

M.H. testified he was shot. The ballistics expert testified that the casings in the street and

one grouping of casings in the parking lot across from the nightclub had matching features

consistent with being ejected from the same firearm.

       The jury found Chappell guilty of second-degree murder for the benefits of a gang,

attempted second-degree murder for the benefit of a gang, and first-degree riot. The district

court sentenced Chappell for second-degree murder (273 months) and attempted murder

(137 months), with the prison terms to run consecutively, and it sentenced him for first-

degree riot (75 months), with the prison term to run concurrent with the others.

       Chappell appeals.

                                      DECISION

       Chappell challenges his conviction and sentence. He contends that the state failed

to prove beyond a reasonable doubt that he engaged in the criminal conduct to benefit a

gang, that the district court plainly erred in its accomplice-liability and expansive-liability

jury instructions, that the prosecutor committed misconduct, and that the district court


                                              6
improperly sentenced him for rioting because that crime resulted from the same behavioral

incident as the murder charges. We are persuaded to reverse only on the sentencing

argument.

                                             I

       Chappell first contends that the state did not prove beyond a reasonable doubt that

the second-degree murder and attempted second-degree murder were committed for the

benefit of a gang. The state sought to establish the for-the-benefit-of-a-gang element

through circumstantial evidence. When we review a claim of insufficient evidence after the

state provided only circumstantial evidence, we first identify the circumstances proved,

deferring to the jury’s decision to accept these circumstances as proved and to its decision

to reject any evidence that conflicted with those circumstances proved. State v. Silvernail,

831 N.W.2d 594, 598–99 (Minn. 2013). In doing so, we construe conflicting evidence in

the light most favorable to the verdict, assuming the jury believed the state’s witnesses and

disbelieved the contrary witnesses. Id. at 599. We next determine whether the

circumstances proved are consistent only with guilt. Id. Under this approach, we will not

affirm merely because the inferences that point to guilt are reasonable. Id. That is, we

consider whether they are inconsistent with any reasonable theory other than guilt. Id.

       The legislature has chosen to impose additional punishment for crimes committed

“for the benefit of, at the direction of, in association with, or motivated by involvement

with a criminal gang.” Minn. Stat. § 609.229, subd. 2 (2012). The state must prove that

when the defendant committed the underlying crime, he had “the intent to promote, further,

or assist in criminal conduct by gang members.” Id. Because criminals seldom announce


                                             7
their specific intent, the intent to benefit a gang is generally proved using circumstances

that tend to imply that the actor was motivated to meet a gang’s conceptions of respect or

punishment. State v. Caldwell, 815 N.W.2d 512, 517 (Minn. App. 2012), review denied

(Minn. June 27, 2012). Chappell does not challenge this standard, but he essentially argues

that, to find a defendant guilty of committing a crime for the benefit of a gang, the state

must establish a specific gang-related motive for the underlying crime rather than a general,

gang-benefiting motive.

       Although it is true that some cases addressing a challenge to the for-the-benefit-of-

a-gang determination have identified a specific gang-related motive, others have observed

merely that some evidence connects the crime to gang purposes. See State v. Matelski, 622

N.W.2d 826, 829 (Minn. App. 2001) (upholding a benefit-of-a-gang conviction where the

defendant and his accomplice shouted “Villa Lobos for life!” “That’s what you get!” and

“Next time would be worse!” after a shooting), review denied (Minn. May 15, 2001); State

v. Yang, 774 N.W.2d 539, 550 (Minn. 2000) (upholding a benefit-of-a-gang conviction

where the defendant and other gang members made gang signs while yelling and swearing

at the victims shortly before attacking). We will therefore not limit our review to evidence

that establishes that Chappell intended to aid the gang in some specific way.

       We first identify the circumstances proved. The evidence considered in the light

most favorable to the verdict informs us that the following circumstances were proved.

Members of two gangs, the Tens and the DTs, were present at the nightclub. Chappell was

admittedly friends with the Tens. Chappell had come to the nightclub with his Tens-

member friends. Chappell perceived the underlying dispute as being between the Tens and


                                             8
the DTs. Chappell knew that the men shooting—other than the Tens members—were in a

gang from “over north.” Tens gang member P.L. was first to shoot on the Tens behalf and

described Chappell as being on their side in the fight against the DTs. Gangs foster varying

levels of participation, such as gang hopefuls committing violent acts for favor with the

gang, and gang members or supporters will back up the “personal beefs” that its members

have with members of rival gangs. During or immediately preceding the gun battle,

Chappell accepted a handgun from a Tens member, and he fired the gun in the same

direction that the Tens members were firing. An additional proved circumstance is that

Chappell murdered W.S. in the second-degree, which Chappell has conceded by

challenging only the element of whether his motive for doing so was to benefit the gang.

       These circumstances proved imply quite plainly that Chappell committed the

underlying crimes (which he does not dispute on appeal) and that he did so for the benefit

of the Tens gang. So we turn to consider whether one can rationally draw these inferences

only, leaving no other reasonable hypothesis as to his motive for committing the crimes.

       Chappell offers three other hypotheses, which he asserts are rational. He offers that

the circumstances instead prove that he acted in self-defense, or that he overreacted to a

perceived threat, or that he shot W.S. or M.H. mistaking them for the men he argued with

inside the nightclub earlier. None of these is a reasonable hypothesis because all would

contradict the circumstances proved.

       Regarding Chappell’s self-defense hypothesis, the jury rejected this affirmative

defense and found him guilty of murder and attempted murder—findings that Chappell has

not challenged on appeal. Although one can kill in self-defense, one cannot commit a


                                             9
murder in self-defense. The jury’s unchallenged determination that Chappell committed

murder is itself enough for us to reject Chappell’s first hypothesis as unreasonable under

the circumstances proved.

       Chappell’s second hypothesis, that he overreacted to a perceived threat to himself,

is a variation on the first. Under this hypothesis the jury implicitly accepted his contention

that he killed or attempted to kill the victims in order to save himself from a threat but

rejected his claim of self-defense specifically on the ground that he chose a level of force

that exceeded the level reasonably necessary for his self-protection. See State v. Glowacki,

630 N.W.2d 392, 399 (Minn. 2001) (stating that to find a defendant acted in self-defense a

jury must find that “the defendant reasonably believed that force was necessary and that

the defendant used only the level of force reasonably necessary to prevent the harm

feared”). The problem for Chappell here is that his challenge on appeal requires him to

present a reasonable hypothesis other than guilt, and this hypothesis, even if it we assume

it is reasonable, is not at all inconsistent with the jury’s challenged finding that he acted to

benefit the gang. One can both overreact to a perceived threat and act to benefit a gang in

doing so. The overreaction can benefit a gang. Chappell could have intended to benefit the

gang by his use of force that exceeded what was necessary to his supposed perceived threat

to himself. Chappell’s second hypothesis complements rather than contradicts the

hypothesis he challenges, and it is no ground for reversal.

       Chappell’s third hypothesis fares no better than the first two. The notion that he shot

W.S. or M.H. by mistaking them for men he had argued with at the nightclub earlier rather

than because they were part of the Tens’ rivals is implausible on the circumstances proved.


                                              10
Chappell was handed the handgun by a Tens member in the middle of the violent clash

between the Tens and a rival gang, and the only reasonable inference of that exchange is

that Chappell accepted the gun intending to use it in the context of the clash, participating

on the Tens’ behalf. Nothing in the circumstances proved suggests that Chappell was

handed the gun or received the gun to carry out some personal vendetta unrelated to the

interests of his friends—known gang members in a gang shootout. Chappell asks us

essentially to infer that when he shot the handgun in the same direction that the Tens gang

members were shooting their guns, he had some reason for shooting that differed from their

reason. We deem the hypothesis unreasonable.

       The only reasonable hypothesis in this case is the most obvious one. Chappell stood

and shot in concert with his friends and acquaintances—members of the Tens gang—in a

street battle against a rival gang. And whether he joined the gun fight to curry favor with

gang members, or to demonstrate his solidarity with gang members, or to help the gang

dominate another gang, the jury found that the resulting murder and attempted murder are

the consequence of his actions undertaken to benefit the Tens gang. We hold that

Chappell’s conduct was inconsistent with any rational hypothesis except his committing

the crimes for the benefit of a gang.

                                             II

       Chappell argues that the district court’s instructions about accomplice liability and

expansive liability were erroneous. But he did not object at trial. We therefore review only

for plain error. See State v. Vance, 734 N.W.2d 650, 655 (Minn. 2007), overruled on other

grounds by State v. Fleck, 810 N.W.2d 303 (Minn. 2012). We will reverse only if we


                                             11
identify an error, the error is plain, and the error affects Chappell’s substantial rights. Id. at

655–56. It is plain error for a district court to fail to properly instruct the jury on all elements

of the offense charged. Id. at 658.

Accomplice-Liability Instruction

       Chappell argues that the district court plainly erred by providing an accomplice-

liability instruction that did not contain the elements required by State v. Milton, instructing

the jury that Chappell knew that his alleged accomplices were going to commit the crime

or that he intentionally assisted in the crime. 821 N.W.2d 789, 805–06 (Minn. 2012). The

defendant bears the burden to show that “there is a reasonable likelihood the jury’s verdict

would have been different had the jurors been specifically instructed that they could not

find [the defendant] guilty unless they found that [he] knowingly and intentionally assisted

another to commit the crime.” Id. at 805. We need not decide whether the court committed

plain error, because the evidence of Chappell’s direct involvement as an actor was so

overwhelming that there is no reasonable likelihood the jury’s verdict would have changed

if the requested elements were included.

       M.H. identified Chappell as the man who ran up to him and W.S. and shot them.

M.H.’s testimony places Chappell as the principal, which would negate prejudice from an

improper accomplice-liability instruction. The jury also heard testimony supporting M.H.’s

account from C.R., who testified that P.L. talked about the incident in jail. C.R. testified

that P.L. told him that “Ced” opened fire and shot and hit one man and chased or advanced

on another man. C.R. recounted that P.L. had told him that Chappell had “kind of like

stepped forward and started going at the person that got shot in the leg.”


                                                12
         Even if we suppose that the jury disbelieved M.H.’s testimony or questioned his

ability to identify the shooter or dismissed C.R.’s hearsay as unreliable, the jury also heard

testimony regarding physical evidence corroborating M.H.’s story about someone coming

closer and shooting him. The ballistics specialist testified that the shell casings found in

the street matched one grouping of shell casings found in the parking lot across from the

nightclub. From this the jury would infer that one of the shooters, who M.H. testified was

Chappell, left the parking lot and entered the street and shot M.H. and W.S.

         Chappell does not meet his burden of showing that there is a reasonable likelihood

that the jury would have found him not guilty if it had been instructed with the elements

indicated by Milton.

Expansive Liability Instruction

         We reject Chappell’s argument that the district court plainly erred by including an

expansive-liability instruction without identifying what other crime Chappell intentionally

aided. The supreme court recently held that a district court does not commit plain error

where it fails to specify the originally intended crime in the jury instructions. State v.

Taylor, 869 N.W.2d 1, 17 (Minn. 2015). Following Taylor, we hold that the district court

did not plainly err by failing to identify the underlying crime that Chappell intentionally

aided.

                                             III

         Chappell maintains that many of the prosecutor’s statements were improper in

misstating the law, vouching for credibility, disparaging the defense, and shifting the

burden of proof. Most of his challenges are to statements that garnered no objection. Our


                                             13
standard of review for improper statements made by a prosecutor depends on whether

Chappell objected at trial. State v. McDaniel, 777 N.W.2d 739, 749 (Minn. 2010). When a

defendant objected, we apply a two-tiered harmless-error test. Id. Under this test, if the

misconduct is less severe, we consider whether the improper statement likely substantially

influenced the jury’s verdict. Id. And if the misconduct is more serious, we will reverse

unless the misconduct is harmless beyond a reasonable doubt. Id.

       When prosecutorial misconduct is not objected to, however, a modified, burden-

shifting plain-error standard applies. State v. Ramey, 721 N.W.2d 294, 296 (Minn. 2006).

The defendant must show that an error occurred and that the error was plain. Id. at 298.

“An error is ‘plain’ if it is clear or obvious,” and typically “contravenes case law, a rule, or

a standard of conduct.” State v. Cao, 788 N.W.2d 710, 715 (Minn. 2010). If the appealing

defendant proves the first two elements, the burden shifts to the state to establish that the

misconduct did not prejudice the defendant’s substantial rights. Ramey, 721 N.W.2d at 302.

That is, the state must 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.

(quotation omitted). Whether this burden is met depends on the strength of evidence against

the defendant, the pervasiveness of the misconduct, and the appellant’s opportunity and

effort to rebut the improper conduct. State v. Davis, 735 N.W.2d 674, 682 (Minn. 2007).

When the alleged misconduct occurs during a prosecutor’s closing argument, we review

the closing as a whole rather than consider only the allegedly offending segment in

isolation. State v. Carridine, 812 N.W.2d 130, 148 (Minn. 2012). If the state fails to

establish that the appellant’s substantial rights were not affected, still reversal is not certain.


                                                14
Then we would determine if fairness and integrity in judicial proceedings compel us to

correct the error. Davis, 735 N.W.2d at 682.

Misstating the Law

       Chappell argues that the prosecutor misstated the law twice during his closing

argument, first by generalizing the specific intent required for second-degree murder and

next by misstating the standard for accomplice liability. These challenged statements were

not objected to during trial. So we will apply the modified plain-error test. Chappell argues

that the prosecutor misstated the law with an analogy to assault, confusing a general-intent

crime (assault) with a specific-intent crime (second-degree murder):

              But let’s say hypothetically you saw me in the course of trial
              punch [Chappell’s attorney] in the head, that’s an assault. An
              act with the intent to cause bodily harm. Well, what if I said
              wait a minute, I wasn’t trying to cause him bodily harm, I was
              just showing him that I was upset with that cross-examination
              of Dr. Baker where he was haranguing him for not doing gun
              shot residue testing to see if this guy who had this gunshot
              wound in his back had committed suicide. And that may be
              why I punched him, but in criminal court we always intend the
              natural consequences of our actions. We don’t care why I did
              it, we care did I mean to do it.

The prosecutor continued, “Same thing here. These weren’t accidental shots. We don’t care

why you say you were doing it.” Chappell also takes issue with the prosecutor’s later

reminder to the jury in concluding, “Remember what I told you about intent, there’s only

one intent when you are pointing a 9 mm at somebody and pulling the trigger multiple

times.”

       It is prosecutorial misconduct to mislead the jury about the law. State v. Salyers,

842 N.W.2d 28, 36 (Minn. App. 2014), aff’d, 858 N.W.2d 156 (Minn. 2015). The


                                             15
prosecutor’s analogy is strange and confusing. But the analogy did not affect Chappell’s

substantial rights. The district court judge instructed the jury both at the beginning and end

of the trial that the judge’s instructions, not the attorneys’ statements, are the law.

Immediately before the prosecutor’s closing statements the judge told the jury, “If an

attorney’s argument contains any statement of the law that differs from the law that I give

you, you should disregard that statement.” We presume that the jury follows the district

court’s instructions. State v. Taylor, 650 N.W.2d 190, 207 (Minn. 2002).

       Although the district court’s instruction will not always save a prosecutor’s

misstatement of law, we do not believe the prosecutor’s statements here deviated from the

law to the extent that it affected Chappell’s substantial rights. Again, a great deal of

evidence demonstrates Chappell’s guilt either as the principal or an accomplice to the

murder. We also recognize that because this statement occurred in the prosecutor’s closing

argument, as opposed to on rebuttal, Chappell’s attorneys had the opportunity to address

the statements, working against Chappell’s claim of prejudice. We hold that the jury would

not likely have acquitted Chappell if the prosecutor had not delivered the analogy.

       Chappell also argues that the prosecutor misstated the law of accomplice liability

using another hypothetical, this time illustrating a robbery with the prosecutor putatively

driving a car and P.L. killing a cashier. The prosecutor’s added explanatory comments tried

to close the analogy, and he concluded by explaining that no evidence indicated that P.L.

or Malcolm was the principal but that, if they were, the evidence demonstrated that

Chappell aided them. Although the attempted parallel is again odd and was not presented

very clearly, we do not see how unfair prejudice would arise from the argument.


                                             16
Vouching

       Chappell maintains that several of the prosecutor’s closing statements constituted

impermissible vouching for the strength of the state’s case and the credibility of the state’s

witnesses. Again, Chappell did not object to any of these statements, so we review them

for plain error.

       During closing arguments, a prosecutor may not personally endorse a witness’s

credibility. State v. Porter, 526 N.W.2d 359, 364 (Minn. 1995). Impermissible vouching

occurs when the state “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. Lopez-

Rios, 669 N.W.2d 603, 614 (Minn. 2003) (quotation omitted). But the state may argue that

a witness is credible or incredible. State v. Pendleton, 759 N.W.2d 900, 912 (Minn. 2009).

That is, counsel may “point to circumstances which cast doubt on a witness’ veracity or

which corroborates his or her testimony, but he may not throw onto the scales of credibility

the weight of his own personal opinion.” State v. Ture, 353 N.W.2d 502, 516 (Minn. 1984).

       The line between a permissible supporting argument and an impermissible vouching

statement can be hard to find, but we agree with Chappell that the prosecutor stepped over

it here. When recounting Chappell’s association with Tens members, the prosecutor

announced, “I don’t know how anybody could conclude that he did not commit this for the

benefit of a gang.” This statement essentially informs the jurors that the prosecutor would

personally suppose any of them doltish for failing to find Chappell’s criminal intent—a

central disputed element at trial. The prosecutor opined that although he was certain that

none of the jurors “would[] trust [C.R.] with [their] children,” when “[P.L.] is in the jail


                                              17
unit bragging that they were shooting 9 mms, and he saw Ced advancing on these two guys,

I think the evidence is you can take that to the bank.” This is a slightly closer question but

the answer is the same. The prosecutor drew the jurors far too personally into the case by

opining about how they might feel about placing their children in the care of a testifying,

incarcerated witness. Cf. State v. Mayhorn, 720 N.W.2d 776, 786–87 (Minn. 2006) (“A

prosecutor must not appeal to the passions of the jury.”). We have said that a prosecutor’s

statement, “I suggest to you that Ms. Ruschmeyer was a very credible witness in this case,”

was not plain error because it was equivalent to the permissible expression of opinion “I

submit.” State v. Anderson, 720 N.W.2d 854, 864–65 (Minn. App. 2006), aff’d on other

grounds, 733 N.W.2d 128 (Minn. 2007). But the statement here is not a mere suggestion

(“I suggest”) or a statement that clearly yields to the jury’s role as fact finder (“I submit”).

It is instead informative, revealing what the prosecutor personally believes the jury’s proper

finding should be (“I think”). We would be troubled by that statement even if it were made

in isolation, and here it is aggravated by the other vouching statements. The prosecutor also

declared, “[P.L.], on his face, is not a believable person. But when he got up on the stand

and said [Chappell] was on our side, only the defense is going to argue with that.” In

context, the statement, “only the defense is going to argue with that,” essentially declares

the attorney’s view that no reasonable, unbiased person could ever find the generally

incredible witness incredible concerning his statement about Chappell’s gang allegiance.

The statement invites jurors to approach the credibility question with bias and to assume

that any of them who dissents from the state’s view is either irrational or partial. The




                                              18
statement in context is misconduct, particularly considering all the vouching statements

together. They constitute plain error.

       But we conclude that the prosecutor’s misconduct did not prejudice Chappell’s

substantial rights. Chappell had an opportunity through his attorney to point out the

unreliability of P.L.’s and C.R.’s testimony, and his attorney did so with regard to P.L.’s

statement that Chappell was on the Tens’ side and with regard to P.L.’s and C.R.’s

credibility in general. In addition to Chappell’s having the opportunity to respond to the

prosecutor’s improper vouching statements, the jury heard overwhelming and largely

uncontested evidence of Chappell’s conduct in relation to the other combatants. The

prosecutorial vouching, though inappropriate, was slight by comparison to the weight of

evidence of guilt, largely on Chappell’s own pretrial admissions and incriminating trial

testimony. Without any dispute, Chappell attended the nightclub on the invitation of a

known Tens gang member; was friends with several of the Tens who also attended;

attended specifically in order to hear his friend, a Tens member, perform; participated in a

violent melee in which Tens members were pitted against members of a different gang;

accepted a handgun from a Tens member during the melee; witnessed Tens members

opening fire on people from “over north” where the DTs were from; and fired shots in the

same direction that Tens members were firing shots. The prosecutor’s improper vouching

on the question of Chappell’s intent to benefit the gang avoids being a reversible error

because of the overwhelming evidence of Chappell’s intent. We hold that the misconduct

by the prosecutor was plain error but that it did not prejudice Chappell’s substantial rights.




                                             19
Disparaging the Defense

       Chappell argues that the prosecutor several times disparaged the defendant

personally, his attorneys, and the defense he advanced. He made only one objection, which

the district court sustained.

       A prosecutor may argue bluntly that a particular defense being offered is meritless.

State v. Martin, 773 N.W.2d 89, 108 (Minn. 2009). And he can make any argument rooted

in the trial evidence. See State v. MacLennan, 702 N.W.2d 219, 236 (Minn. 2005). But the

prosecutor may not belittle the defense abstractly or by suggesting that it was presented in

desperation. Id.

       Chappell maintains that the prosecutor disparaged him personally, comparing one

witness to Chappell by saying, “Now, compare that body language to what you saw from

the hot mess you saw on that stand yesterday. Which individual do you think was more

sincere or genuine in their responses?” Chappell also objects to the comment, “There was

only one person you heard from, in the course of this trial, that has the oldest, strongest,

and most insidious motive to lie in the history of planet Earth. To lie to avoid consequences

for actions you knew were wrong.” Referring to Chappell or his testimony as “a hot mess”

pushes the limits of tolerable courtroom behavior. But in context, the prosecutor tied his

hyperbolic and flamboyant comments to the evidence, including the demeanor of witnesses

presenting testimony in relation to the witnesses’ credibility. See Martin, 773 N.W.2d at

106 (reaffirming that a prosecutor in closing argument may argue that a witness was not

credible). In context we do not conclude that these statements constituted misconduct.




                                             20
       Chappell maintains that the prosecutor demeaned his theory of the defense. When

discussing the fact that C.D. handed Chappell the gun before driving off in his car, the

prosecutor stated:

              I’m not trying to denigrate the defense or what the Defendant
              said, but I would submit if we’re going to seek justice, at some
              point we have to be realistic. And even if you want to buy that
              story, it kind of pokes a little bit about the assertion of self-
              defense does it not?

Later the prosecutor added:

              You heard the Defendant admit he was moving away from him
              when he fired in that direction. Nobody who shot [W.S.],
              whether it was this unidentified Malcolm, or whether it was the
              Defendant, was defending themselves. Never in the history of
              planet Earth has anybody been shot in the back righteously.

       Chappell argues that both of these comments suggested to the jurors that they would

be fools to believe Chappell’s version of events, which embodied the self-defense

argument, and that they also belittled Chappell’s defense theory. We agree with the charge.

Beginning an argument with “I’m not trying to denigrate the defense . . . but” and then

ending it with, “Never in the history of the planet Earth” is sort of like beginning a debate

line with “with all due respect” and then ending it with “moronic and perverted.” But the

main problem is that the argument offends the rule that “the prosecutor may not generally

belittle a particular defense in the abstract.” State v. Ashby, 567 N.W.2d 21, 28 (Minn.

1997). The proposition that no one in history has ever acted in self-defense while wounding

an attacker in the back regardless of any other facts is one that can probably fall to multiple

hypothetical examples. We need not offer any because, even if this were not so, the

categorical declaration denouncing the defense is not proper argument to a jury. And the


                                              21
term “righteously” suggests improperly that the question of self-defense hangs on a moral

standard rather than a legal standard.

       Chappell also argues that the prosecutor committed misconduct in his

characterizing of the questioning or arguments of Chappell’s attorney. For example, the

prosecutor asked M.H. if he remembered Chappell’s counsel “beating [him] up on cross-

examination.” He also described Chappell’s cross-examination of the medical examiner as

“haranguing.” And he criticized the defense as having wrongly portrayed the victim, W.S.,

as a “mad beast.” These are mere characterizations, albeit colorful and perhaps overstated

characterizations, that Chappell had the opportunity to rebut and that the jury was free to

reject. We do not see them as either reaching the level of misconduct or prejudicing

Chappell’s substantial rights. And as to the prosecutor’s statement that was objected to and

sustained, we again presume that the jury follows the district court’s instructions to

disregard objected to statements. State v. Pendleton, 706 N.W.2d 500, 509 (Minn. 2005).

Shifting the Burden of Proof

       Chappell argues that the prosecutor made various improper statements that shifted

the burden of proof to the defense. Chappell objected and was overruled on one of the

statements. We review the propriety of this statement under the two-tiered harmless error

test already outlined. Chappell’s attorney argued in closing that the prosecutor was more

concerned with closing the case than seeking truth, citing the police’s failure to recover a

gun from C.D. The prosecutor rebutted by stating that Chappell had not given them C.D.’s

last name so they were unable to locate the gun. The prosecutor stated:




                                            22
              The cops should have done a search warrant on [C.D.]. Did he
              identify him as [C.D.]? No, he tried to do that same thing he
              did with Malcolm. It’s [C.D.], I don’t know who it is. Now, he
              comes here and he knows darn right it’s [C.D.]. Maybe if he’d
              have said this is [C.D], so the officers didn’t have to do a
              subsequent investigation, they could have got a search warrant
              in a timely manner and found that gun. And the proposition
              that this investigation failed because they didn’t find the
              murder weapon, he’s the one who gave it back to [C.D.].

       Chappell argues that the prosecutor’s argument implied that Chappell had a duty to

turn the gun over in order to clear himself of the charges, effectively shifting the burden of

proof from the state to Chappell. A prosecutor commits misconduct by commenting on a

defendant’s failure to call a witness or by contradicting testimony so as to suggest to the

jury that the defendant bears some burden of proof. Porter, 526 N.W.2d at 365. Although

the challenged statement could be similarly interpreted as shifting a burden of proof, it is

counterbalanced by the fact that “the prosecutor has the right to respond to the arguments

made by the defendant.” State v. Vue, 797 N.W.2d 5, 16 (Minn. 2011). Because this

statement was made during rebuttal and addressed an argument made by defense counsel

that the police did not undertake a thorough investigation after Chappell’s interview, we

cannot consider the statement burden-shifting misconduct.

       Chappell also contends that two statements in the prosecutor’s opening argument

shifted the burden of proof to the defense. Chappell first asserts that the prosecutor shifted

the burden of proof by emphasizing gang retaliation for “snitching,” which effectively

excused any gaps in the state’s case. Chappell points to the prosecutor’s comments that

gangs have “[o]ne essential rule that they follow with military-like discipline, you don’t

snitch ever. . . . This trial, you will see a textbook example of the don’t snitch code in


                                             23
action.” Chappell similarly claims burden shifting occurred based on the comment, “Now,

because he got rid of the murder weapon, we can’t match these discharged casings up with

any particular weapon.” Chappell did not object.

       We hold that there is no reasonable likelihood that the jury would have entered a

verdict of not guilty but for these statements. The district court’s written instructions stated

several times that the state bore the burden. Even if the comments hint of burden shifting,

they did not affect Chappell’s substantial rights.

       Although we do not reverse for the reasons stated, we repeat that Chappell’s

argument for prosecutorial misconduct is not without merit. Nothing in our affirming

implies our approval of the prosecutor’s language or tactics, which, but for the

circumstances here, may have required reversal.

                                              IV

       Chappell challenges his sentence for the first-degree riot conviction. He argues that

the sentence should be vacated because it punishes conduct that was part of the same

behavioral incident as the murder and attempted-murder convictions. The state agrees with

Chappell’s argument. Our de novo review on the undisputed facts convinces us that the

argument prevails. When a defendant’s conduct constitutes more than one offense, he may

be punished only for one of the offenses. Minn. Stat. § 609.035, subd. 1 (2012).

       The district court made no findings as to the time, place, and motivation of the riot

charge as compared to those of the other offenses. A comparison of these elements drives

our review. See State v. Soto, 562 N.W.2d 299, 304 (Minn. 1997). Because all the riotous

and murderous conduct occurred within the same episode, at the same location, at about


                                              24
the same time, and with the same combative intent, the district court should not have

sentenced Chappell on the riot conviction after sentencing him on the murder and

attempted-murder convictions.

       We therefore affirm in all respects except that we reverse and remand for the district

court to correct the sentence.

       Affirmed in part, reversed in part, and remanded.




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