                          This opinion will be unpublished and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
                                     A13-2328

                                    State of Minnesota,
                                       Respondent,

                                            vs.

                                   Willie Ellis Bardney,
                                        Appellant.

                                Filed November 17, 2014
                                       Affirmed
                                      Reilly, Judge

                             Hennepin County District Court
                               File No. 27-CR-13-15952

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

Michael O. Freeman, Hennepin County Attorney, Jean Burdorf, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Rachel F. Bond, Assistant
Public Defender, St. Paul, Minnesota (for appellant)


         Considered and decided by Reyes, Presiding Judge; Peterson, Judge; and Reilly,

Judge.

                         UNPUBLISHED OPINION

REILLY, Judge

         Appellant Willie Bardney challenges his second-degree assault conviction,

asserting that the district court plainly erred when it interrupted appellant’s testimony at
trial to remind the jury of the credibility instruction, and that the prosecutor committed

misconduct. We affirm the jury’s verdict because the credibility instruction did not affect

Bardney’s substantial rights, and the prosecutor did not commit misconduct.

                                          FACTS

       Respondent State of Minnesota charged Bardney with second-degree assault for an

altercation that occurred between Bardney and his neighbor, V.G., over odiferous drugs.

On May 18, 2013, Bardney resided with his girlfriend, A.A., in an upstairs unit of a

Minneapolis duplex. V.G. lived in the first-floor unit of the same duplex with a friend,

M.H., and her son. Throughout the day and evening on May 18, Bardney and A.A.

drank alcohol. During the day, Bardney went downstairs to speak to V.G. about the drug

smells that were floating up into the upper unit.

       Later the same day, after continuing to smell drugs Bardney went downstairs to

speak with V.G. During the second encounter, Bardney spoke with M.H. on the front

porch of V.G.’s unit. Bardney then left the downstairs unit and went upstairs to his unit.

Bardney grabbed a kitchen knife and put it in his pocket. Soon after, Bardney went back

downstairs, entered V.G.’s unit through the unit’s front door, and stabbed V.G.

       Both V.G. and Bardney testified at trial. V.G. testified that during the second

encounter, while Bardney and M.H. spoke on the front porch, Bardney was yelling and

“talking about killing me, my family, calling me all kinds of names.” V.G. testified that,

once Bardney was inside his unit, he asked where “that motherf--ker [V.G.] is” and

charged and swung at V.G.; V.G. ducked, swung back, and pushed Bardney away.

Bardney then stabbed V.G. three times in both the bicep and chest areas and told V.G.,


                                             2
“Motherf--ker, I’m going to kill you.” During this altercation, Bardney used a kitchen

knife and some other object that put a “hole” in V.G.’s arm. V.G. backed away, grabbed a

box cutter, and swung at Bardney. Bardney then ran out the door and upstairs to his unit.

       Bardney asserted a self-defense claim. His testimony at trial differed from V.G.’s

testimony in the following significant ways: (1) that after arguing back and forth, V.G.

pushed Bardney first; (2) that V.G. swung the box cutter and cut Bardney on his left

hand before Bardney stabbed V.G. in the arm or chest areas; (3) that Bardney attempted

to back away from V.G., but V.G. ran up to Bardney and Bardney then stabbed V.G. in

the left arm; (4) that V.G. “[came] at” Bardney again, and Bardney stabbed V.G. in the

chest; and (5) that Bardney attempted to leave V.G.’s unit, but V.G. blocked him inside

the unit. After Bardney left V.G.’s unit, he ran upstairs to his unit, kicked out the kitchen

window, and jumped out of the window.

       The jury found Bardney guilty of second-degree assault. This appeal follows.

                                      DECISION

                                              I.

       Bardney contends that he is entitled to a new trial because his rights were

substantially affected when the district court interrupted his testimony to remind the jury

of the court’s credibility instruction. A review of the trial transcript shows no objection

by Bardney to the district court’s statement at the time it was made. “Ordinarily, the

defendant’s failure to object to an error at trial forfeits appellate consideration of the

issue.” State v. Ramey, 721 N.W.2d 294, 297 (Minn. 2006). This court may review

unobjected-to instructions if the instruction constitutes plain error that affects substantial


                                              3
rights or is an error of fundamental law. State v. Scruggs, 822 N.W.2d 631, 642 (Minn.

2012).

         “The plain-error test requires: (1) an error; (2) that is plain; and (3) the error must

affect the defendant’s substantial rights.” State v. Larson, 787 N.W.2d 592, 600 (Minn.

2010). “An error is plain if it is clear or obvious, and usually this is shown if the error

contravenes case law, a rule, or a standard of conduct.” State v. Davis, 735 N.W.2d 674,

681 (Minn. 2007). If all three prongs are met, this court then determines whether the

error needs to be corrected to ensure the “fairness and the integrity of the judicial

proceedings.” Larson, 787 N.W.2d at 600.

         During Bardney’s direct testimony, the following exchange occurred:

                [Defense counsel]: What did you do?
                [Bardney]: Then [V.G.] went outside the door and he closed
                the door behind himself and put his foot on the door so I
                couldn’t get out. So I came to the door, I was at the door,
                [M.H.] was in front of me but she was on the phone calling
                the police -- 911 and he tried to keep me in there until the
                police get there. So I put my shoulder up against the door --
                [Prosecution]: Objection, calls for speculation.
                THE COURT: I’ll allow it.
                [Defense counsel]: So you’re putting --
                THE COURT: Members of the Jury, part of the credibility
                determination that I gave you earlier, the long instruction, had
                a number of factors that you could consider. Obviously that
                applies to Mr. Bardney’s testimony as well as the testimony
                of any other witness. You may proceed.
                [Defense counsel]: So what -- When you’re saying you’re
                putting your shoulder up against the door, what are you
                doing?




                                                4
Bardney alleges that the district court’s instruction improperly singled him out and cast

doubt on his testimony, constituting plain error. The state counters that no error was

made.

        Bardney relies on State v. Underwood, 281 N.W.2d 337, 339 (Minn. 1979), to

support his argument that plain error affecting his substantial rights was made by the

district court. We agree. In Underwood, the supreme court held that the district court’s

credibility instruction that went on at length about the defendant’s interest in the result of

the trial and his temptation to testify falsely singled out the defendant and was improper.

281 N.W.2d at 343-44. Similarly, the district court here improperly reminded the jury of

the credibility instruction during Bardney’s testimony, thus singling out Bardney. See

State v. Bishop, 289 Minn. 188, 195, 183 N.W.2d 536, 540 (1971) (“It is generally held

that it is improper for the court to single out particular witnesses and charge as to their

credibility.”). Accordingly, it was error to remind the jury of the credibility instruction

during Bardney’s testimony. The error was plain because this error contravenes caselaw.

State v. Ihle, 640 N.W.2d 910, 917 (Minn. 2002) (describing that “plain” is synonymous

with “clear” or “obvious”).

        Under the third prong of the plain-error analysis, the defendant bears the heavy

burden of proving that the error was prejudicial and affected the outcome of the case.

State v. Griller, 583 N.W.2d 736, 741 (Minn. 1998) holding modified by Ramey, 721

N.W.2d at 294. A plain error is prejudicial if there is a “reasonable likelihood that the

giving of the instruction in question would have had a significant effect on the verdict of

the jury.” Id.


                                              5
          Bardney’s reliance on Underwood does not satisfy his burden. In our eyes, the

challenged instruction in Underwood was much more concerning than the instruction at

issue here. 281 N.W.2d at 343. Additionally, even though the supreme court reversed

the defendant’s conviction in Underwood, the court noted that the combination of four

different trial errors required reversal due to the “closeness” of the case, id. at 340, and

that any of the errors standing alone would not require reversal, id. at 344.

          Here, unlike the district court’s credibility instruction in Underwood, the district

court did not address Bardney’s temptation to testify falsely nor did it go on at length

about Bardney’s interest in the case. The challenged instruction applied to Bardney’s

testimony as well as to other witnesses. Even though credibility was key in this case, the

facts of this case do not suggest it was as close as the facts in Underwood. The gist of the

witness testimony concerning the assault suggested that Bardney was the aggressor and

that his actions were not in self-defense. This conclusion is supported by the fact that

Bardney returned to his unit to retrieve a knife, and that V.G. suffered three stab wounds

while Bardney suffered only a small cut on his hand. Lastly, unlike the instruction in

Underwood, the district court’s instruction was not compounded by multiple other trial

errors.

          Moreover, the district court’s instruction referred back to its original credibility

instruction, which instructed the jury that it “must decide what testimony to believe and

how much weight to give it.” The district court also told the jury that had the court “said

or done anything that you think would seem to indicate any opinion by [the court], you

should disregard that.” Thus, this error did not have a significant effect on the jury’s


                                               6
verdict. Accordingly, Bardney has not met the heavy burden of proving that the district

court’s instruction substantially affected his rights.

                                              II.

       Bardney argues for the first time on appeal that the prosecutor committed

misconduct that deprived him of a fair trial. Where, as is the case here, an appellant

challenges unobjected-to prosecutorial conduct, we apply a modified plain-error test on

appeal. Ramey, 721 N.W.2d at 302. Under the modified plain-error test, the defendant

must first prove that a plain error was made. State v. Martin, 773 N.W.2d 89, 104 (Minn.

2009). “If plain error is established, the burden shifts to the prosecution to demonstrate

that the error did not affect substantial rights. An error affects a defendant’s substantial

rights only if there is a reasonable probability that the error actually impacted the

verdict.” Id. If these burdens are met, this court then “assesses whether the error should

be addressed to ensure fairness and the integrity of the judicial proceedings.”          Id.

Bardney alleges two instances of prosecutorial misconduct.

       First, Bardney contends that the prosecutor’s questions during his cross-

examination were misconduct because they sought legal conclusions and factual

determinations regarding elements of the second-degree assault charge. In sole support

of his argument, Bardney relies on two factually distinct cases. In both cases cited by

Bardney, State v. Moore, 699 N.W.2d 733, 739 (Minn. 2005), and State v. Sontoya, 788

N.W.2d 868, 873 (Minn. 2010), the issue was the admission of opinion testimony by an

expert witness. Specifically, the experts in both cases gave testimony involving legal

conclusions. Here, the prosecution asked Bardney whether he used the knife as a weapon


                                               7
and whether the knife was “capable of producing death or great bodily harm.” Although

the prosecution’s questioning did ask Bardney to make a legal conclusion involving

whether he used a dangerous weapon during the assault, this element of the offense was

not in dispute at trial.

       Moreover, the concern that opinion testimony may “unduly influence a jury” is not

implicated here. Sontoya, 788 N.W.2d at 877. Indeed, the Minnesota Rules of Evidence

permit opinions on ultimate issues if such testimony is helpful to the fact-finder. Minn.

R. Evid. 704 (“Testimony in the form of an opinion or inference otherwise admissible is

not objectionable because it embraces an ultimate issue to be decided by the trier of

fact.”). Because the primary issue at trial was not whether the state proved each element

of the charge but whether Bardney acted in self-defense, it was likely helpful to the jury

to establish the underlying charge and focus on the proffered defense. We see no undue

influence with allowing a defendant to testify about the object he used during the assault

and the possibility of inflicting bodily harm from such object. Therefore, appellant

cannot establish that questioning him about the knife used in the assault was plain error.

       Second, Bardney claims that the prosecutor improperly shifted the burden of proof

in two different instances. A prosecutor can improperly shift the burden of proof if he or

she implies that the defendant has the burden of proving his innocence. Martin, 773

N.W.2d at 105. “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). To determine whether the prosecutor improperly shifted the burden of

proof, this court reviews “the closing argument as a whole, rather than just selective


                                             8
phrases or remarks that may be taken out of context or given undue prominence.” State

v. Carridine, 812 N.W.2d 130, 148 (Minn. 2012). The first alleged misconduct occurred

in the prosecutor’s closing argument:

             In light of all the evidence he had to admit he had a dangerous
             weapon, that he used a dangerous weapon that he
             intentionally inflicted bodily harm on [V.G.] when he
             repeatedly stabbed him. But while he admitted those things,
             he denies he’s guilty of the offense of second degree assault.
                     And his denial comes in the form of a claim that he
             acted in self-defense. And he wants you to believe -- No,
             strike that. He needs you to believe he acted in self-defense
             because if he did not act in self-defense, and most assuredly
             he did not, he is guilty of the charge before you, assault in the
             second degree.
                     And as sure as I stand here today, [defense counsel]
             will get up before you at the conclusion of my summation and
             submit two things to you on behalf of his client. He will
             suggest to you that the evidence shows the defendant acted in
             self-defense.

(Emphasis added.) Later in the closing argument, the prosecutor stated:

             And when he became aware the police were coming, . . . he
             half dressed jumps out a window to get away. What does
             your common sense tell you about that?
                    In a moment [defense counsel] will get up before you
             and argue strenuously that this was self-defense. He will try
             to convince you, to sell you. I submit to you the evidence is
             such that you should not be. There is a Latin term, Caveat
             emptor, let the buyer be ware [sic]. The evidence in this case
             is overwhelming, and it’s the totality between all the
             witnesses and in combination together with the exhibits
             which cannot be changed, between the testimonial evidence
             and the standalone physical evidence.

(Emphasis added.)

      Caselaw has held that similar statements made during a closing argument did not

shift the burden of proof. In Carridine, the prosecution told the jury that the defendant


                                            9
“needs you to believe it because if you don’t believe it, he’s guilty of murder in the first

degree,” and “the defendant needs you to believe there was a gun.” 812 N.W.2d at 147-

48. The supreme court found that these types of comments did not shift the burden of

proof and, even if the burden was shifted, it did not affect the appellant’s substantial

rights because the jury was properly instructed on the burden of proof. Id. Because these

statements did not shift the burden of proof, Bardney cannot establish plain error.

       The second alleged instance of burden-shifting occurred during the prosecutor’s

rebuttal closing argument:

                       [Defense] asked you would you rely on the testimony
              of [V.G.], [M.H.], and [C.M.] . . . in an important decision
              that you make. And that’s where he left it. Three witnesses.
              The State yesterday alone called nine witnesses and several
              witness[es] the day before that. Several witnesses this
              morning. There is no one witness in this case, and the State is
              certainly not asking you to rely on [V.G.], [M.H.], and [C.M.]
              alone.
                       And, in fact, I told you that in my initial summation
              that it is the totality of all the evidence, of all the witnesses, of
              all the physical evidence which you can consider. We’re
              looking for the whole truth and not the half truth.
                       Look at everything in conjunction with each other and
              in relationship to other items of evidence. That’s what a fact
              finder does. The proof is in the details. And while
              sometimes this is not the most exciting process, the State has
              the burden of proof and took the time necessary to bring
              forward witness after witness, point after point to give you
              all the facts, to give you the totality.

Bardney claims that this statement “misled the jury into thinking that proof beyond a

reasonable doubt depends on the quantity of evidence or the number of witnesses.” In

making this claim, Bardney’s brief only reproduced the first paragraph.




                                               10
       Bardney relies on State v. Trimble, 371 N.W.2d 921, 926 (Minn. App. 1985),

review denied (Minn. Oct. 11, 1985), to support his “quantity” argument. In Trimble, we

highlighted that statements arguing that quantities of evidence to rebut the presumption of

innocence are improper. Id. at 926-27. Reversal, however, was not required because the

district court properly instructed the jury on the presumption of innocence, the defendant

argued against the prosecutor’s theory, and the court told the jury that the prosecutor’s

argument was an incorrect statement of law. Id.

       Here, the state never argued that the presumption of innocence disappeared.

Rather, the state emphasized that the jury should consider the totality of the evidence, and

it appears that the challenged statements emphasized the central question in this case—

whether Bardney was acting in self-defense. Accordingly, these statements did not shift

the burden of proof and Bardney cannot establish plain error.

       Even if Bardney could establish plain error, viewing the record on the whole, the

error would not have had a significant effect on the jury’s verdict. To determine the

effect of the error, we consider “the strength of the evidence against the defendant, the

pervasiveness of the improper suggestions, and whether the defendant had an opportunity

to (or made efforts to) rebut the improper suggestions.” State v. Hohenwald, 815 N.W.2d

823, 835 (Minn. 2012). We will reverse only when the alleged prosecutorial misconduct,

“viewed in light of the entire record, is of such serious and prejudicial nature that

appellant’s constitutional right to a fair trial was impaired.” State v. Haynes, 725 N.W.2d

524, 529 (Minn. 2007).




                                            11
       After closing arguments, the district court instructed the jury, “Mr. Bardney is

presumed innocent of the charge made. This presumption remains with him unless and

until he has been proven guilty.” In addition, the district court told the jury, “If an

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

you, guess what, you disregard the law they give you and follow the law that I give you.”

See State v. Shoen, 578 N.W.2d 708, 718 (Minn. 1998) (holding that this court presumes

that the jurors follow the district court’s instructions). Therefore, the district court’s

instructions negated any error. See State v. Pendleton, 706 N.W.2d 500, 509 (Minn.

2005) (holding that prosecutorial misconduct may be cured by district court instruction).

       Affirmed.




                                            12
