                          This opinion will be unpublished and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
                                     A13-2256

                                   State of Minnesota,
                                       Respondent,

                                           vs.

                                   Malcolm Roy Evans,
                                       Appellant.

                                Filed December 15, 2014
                                       Affirmed
                                    Halbrooks, Judge
                                Dissenting, Ross, Judge

                                Clay County District Court
                                 File No. 14-CR-13-2607

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

Brian J. Melton, Clay County Attorney, Lori H. Conroy, Assistant County Attorney,
Moorhead, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Erik Irving Withall, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

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

Judge.

                         UNPUBLISHED OPINION

HALBROOKS, Judge

         Appellant Malcolm Roy Evans challenges his conviction of misdemeanor

domestic assault–harm, arguing that the district court erroneously instructed the jury on
the elements of the crime and that the prosecutor committed misconduct by eliciting

inadmissible testimony and misstating the law in closing argument. We affirm.

                                        FACTS

      Mid-morning on August 4, 2013, Evans arrived home after a night of drinking and

woke his wife, D.E. They argued about his intention to take her malt liquor to drink it

with another woman.1 After “mock punching” the air next to D.E.’s face about three

times on each side, D.E. moved and Evans struck D.E. in the face. She then backed

away, and Evans placed his hands around her neck and squeezed.            Evans left the

apartment, and D.E. called 911, reporting that Evans had hit and choked her.

      Moorhead police officers responded to D.E.’s 911 call within minutes.         One

officer interviewed D.E. and photographed bruising that he observed on her neck and

face. A second officer checked the area for Evans, arresting him less than an hour later.

The state charged Evans with violating Minn. Stat. § 609.2242, subd. 1(2) (2012)

(domestic assault–harm).

      At a jury trial in which Evans represented himself, D.E. and the two responding

police officers testified. During D.E.’s testimony, the prosecutor played recordings of

1
   The following exchange occurred during cross-examination of D.E. by the self-
represented defendant:

             Q: So I was going to take your Sparks and go . . . drink them
             with another female and you did not appreciate that.
             A: Correct.
             Q: And as you so beautifully pointed out, I was up all night
             drinking Windsor, and I drunk a 1.75 bottle of Windsor
             straight, so I was—would drunk be a fair statement to say?
             A: Yes.


                                            2
D.E.’s 911 call and the statement she gave to police on August 4.                  Two sets of

photographs of D.E.’s face and neck injuries were admitted into evidence—the first set

from August 4 and the second set taken eight days later. The district court instructed the

jury on the elements of domestic assault generally and provided the standard domestic

assault–harm instruction as well as an excerpt from the standard domestic assault–fear

instruction. Neither party objected to the jury instructions.

       In closing argument, the prosecutor focused on evidence that Evans had purposely

choked D.E., which hurt her and left bruises on her neck. The prosecutor also argued that

D.E. was afraid after Evans punched her face, which supported the argument that the

subsequent choking was not part of any mock fighting or an attempt by Evans to get past

D.E. and leave the apartment. Evans argued that his contact with D.E.’s face was

accidental, her injuries were minor, and the state had not proved the element of intent.

On rebuttal, the prosecutor argued:

              [T]he state is not focused on the hit [to D.E.’s face]. The
              state is focused on what happened after that. The state’s
              theory in this case is not that the hit was the intentional act in
              this case. The hit caused [D.E.] to fear. The hit caused her to
              start backing up. And then what happened?

                      How do we know that the defendant did something
              intentionally? Well, the defendant intentionally put his hands
              around his wife’s neck to the extent that they left fingerprint
              type bruise marks on her neck. Ladies and gentlemen of the
              jury, that establishes intent.

After 25 minutes of deliberation, the jury found Evans guilty, and the district court

convicted Evans of violating Minn. Stat. § 609.2242, subd. 1(2) (domestic assault–harm).

Evans now appeals.


                                              3
                                      DECISION

                                              I.

       Although it is an issue on appeal, Evans did not object to the jury instructions at

trial. We review unobjected-to jury instructions for plain error. State v. Hayes, 831

N.W.2d 546, 555 (Minn. 2013). In applying the plain-error analysis to jury instructions,

we will reverse only if the appellant establishes that the district court (1) committed an

error; (2) that was plain; (3) that affected the appellant’s substantial rights; and (4) that

seriously affects the fairness, integrity, or public reputation of judicial proceedings.

Montanaro v. State, 802 N.W.2d 726, 732 (Minn. 2011).

       Because jury instructions must define the crime charged and explain the elements

of the offense, State v. Kuhnau, 622 N.W.2d 552, 556 (Minn. 2001), “failure to properly

instruct the jury on all elements of the offense charged” can constitute plain error, State v.

Gunderson, 812 N.W.2d 156, 161 (Minn. App. 2012) (quotation omitted).                 “[I]t is

sufficient that the error is plain at the time of the appeal.” State v. Ihle, 640 N.W.2d 910,

917 (Minn. 2002) (quotation omitted). But plainly erroneous jury instructions warrant

reversal only if the error demonstrably affected the defendant’s substantial rights. Id. An

error affects substantial rights if “there is a reasonable likelihood that the error had a

significant effect on the jury’s verdict.” State v. Milton, 821 N.W.2d 789, 809 (Minn.

2012) (quotations omitted).

       Evans argues that the district court’s instructions to the jury were plainly

erroneous because they permitted the jury to find him guilty of domestic assault–fear,

with which Evans was not specifically charged. The state concedes that the charging


                                              4
citation references only bodily harm but argues that even if the jury instructions

referencing fear were erroneous, the error was neither plain nor affected Evans’s

substantial rights.

       District courts enjoy “broad discretion and considerable latitude in choosing the

language of jury instructions.” State v. Smith, 674 N.W.2d 398, 400 (Minn. 2004).

Appellate courts “review the jury instructions in their entirety to determine whether the

instructions fairly and adequately explain the law of the case.” Milton, 821 N.W.2d at

805 (quotation omitted).

       “Jury verdicts in all criminal cases must be unanimous.” State v. Pendleton, 725

N.W.2d 717, 730 (Minn. 2007) (citing Minn. R. Crim. P. 26.01, subd. 1(5)). The jury

must unanimously agree that the state proved each element of the charged offense. Id. at

730-31.    But unanimity is not required with respect to alternate means or ways of

satisfying an element of the offense. Ihle, 640 N.W.2d at 918. We have held that the two

subparts of Minn. Stat. § 609.2242, subd. 1, present alternative means of committing the

offense of domestic assault. State v. Dalbec, 789 N.W.2d 508, 512-13 (Minn. App.

2010), review denied (Minn. Dec. 22, 2010).

       A defendant is guilty of misdemeanor domestic assault if he “(1) commits an act

with intent to cause fear in [a family or household member] of immediate bodily harm or

death; or (2) intentionally inflicts or attempts to inflict bodily harm upon [a family or

household member].” Minn. Stat. § 609.2242, subd. 1. The standard jury instructions for

misdemeanor domestic assault closely track Minn. Stat. § 609.2242, subd. 1,

distinguishing the two subparts. See 10 Minnesota Practice, CRIMJIG 13.44-.46 (2006).


                                           5
The district court here instructed the jury by giving the entire standard instruction relating

to bodily harm as well as part of the instruction relating to fear.

       Had Evans been charged with a violation of subdivision one generally, the

instructions given by the district court may have fairly and adequately explained the law

of the case. But Evans was only charged with subpart two (bodily harm). Because the

district court unnecessarily instructed the jury on assault–fear when Evans was

specifically charged with assault–harm, we conclude that Evans has met his burden of

showing that the jury instructions misstated the law. We next consider whether the error

was plain.

       “[E]rror is plain if it is clear or obvious” or “if the error contravenes case law, a

rule, or a standard of conduct.” State v. Vance, 734 N.W.2d 650, 658 (Minn. 2007)

(quotations omitted), overruled on other grounds by State v. Fleck, 810 N.W.2d 303

(Minn. 2012).     Evans argues that the district court’s error here is plain because

“Minnesota courts agree that the two subparts of the domestic-assault statute represent

separate crimes.” We disagree, as our case law provides that the two subparts are

alternative means of proving the same offense. Dalbec, 789 N.W.2d at 512-13. We

therefore conclude that Evans has not met his burden of showing that the error was plain.

       Evans also argues that his substantial rights were affected by the erroneous jury

instructions because he was not on notice of the charge of domestic assault–fear and the

instruction relieved the state of its burden of proving each element of domestic assault–

harm. The state responds that there is no reasonable likelihood that the instruction had a

significant effect on the jury’s verdict. As with the first two plain-error requirements,


                                               6
Evans bears the burden of persuasion on the third prong, which is a “heavy burden.”

State v. Griller, 583 N.W.2d 736, 741 (Minn. 1998).

       Evans contends that although the state focused generally on evidence relating to

bodily harm, it altered its strategy in closing argument to focus on fear. Having reviewed

the trial transcript in its entirety, we disagree. The prosecutor focused squarely on bodily

harm and specifically on the evidence that Evans grabbed D.E. by the neck, causing pain

and leaving bruises that were visible and photographed. The prosecutor did not mention

fear in her opening statement. In closing argument, the prosecutor summarized the case

as follows:

              And, ladies and gentlemen of the jury, that is what the
              testimony and the evidence shows. That the defendant,
              Malcolm Evans, laid hands on his wife with intent to cause
              her harm. He was angry. She was not letting him do
              something that he wanted to do. They were fighting. It
              wasn’t a move to get her out of the way. It was grabbing her
              around the neck and squeezing in anger. That is intent to
              cause bodily harm. And it did cause [her] bodily harm. It
              caused her pain and it caused her bruising.

       Evans then gave his closing argument, focusing mostly on bodily harm, but

stating, “Was she scared? She said she was scared, so I don’t know what she feels. If she

says she was scared, she was scared. But was it my intent to make her scared? That’s

what it comes down to.”

       The prosecutor in rebuttal argued that the evidence that D.E. was afraid and

backing away was offered to prove intent with respect to the subsequent choking. The

prosecutor did not argue that Evans laid hands on D.E. in an effort to scare her. In the

context of the overwhelming evidence supporting a conviction of domestic assault–harm,


                                             7
we conclude that there is no reasonable likelihood that the erroneous instruction had a

significant effect on the jury’s verdict.

       We also reject Evans’s argument that the erroneous instruction relieved the state of

its burden to prove a required element of the charged crime. The prosecutor’s final

entreaty to the jury before deliberations began was that Evans intended to cause bodily

harm and did cause bodily harm to D.E. We conclude that Evans has not met his heavy

burden of showing that his substantial rights were affected by the erroneous jury

instruction.

                                                II.

       Evans contends that the prosecutor committed misconduct by eliciting

inadmissible testimony and by misstating the law in closing argument. Evans did not

object to the claimed errors at trial. We review a claim of unobjected-to trial error under

the plain-error standard. State v. Ramey, 721 N.W.2d 294, 302 (Minn. 2006). This

standard requires (1) error, (2) that is plain, and (3) that affects substantial rights. Griller,

583 N.W.2d at 740. If the three plain-error elements are established, we then consider

whether a new trial is necessary to ensure fairness and the integrity of the judicial

proceedings. Id. In the context of prosecutorial error, if the appellant establishes an error

that is plain, the burden shifts to the state to prove the third prong. Ramey, 721 N.W.2d

at 302. The state must show that there is no reasonable likelihood that the error had a

significant effect on the jury’s verdict. Id.




                                                8
       Eliciting Inadmissible Testimony

       Evans argues that the prosecutor committed error when she elicited inadmissible

testimony from the two police officers about safety concerns related to domestic-assault

calls, domestic-assault patterns, and the nature of the location where Evans was arrested.

Evans does not argue that the district court erred in admitting the testimony, only that the

prosecutor erred in eliciting it.

       By seeking to elicit clearly inadmissible evidence, a prosecutor may commit

misconduct. State v. Fields, 730 N.W.2d 777, 782 (Minn. 2007). Having reviewed the

trial transcript, we conclude that, even if the challenged testimony was not strictly

necessary, there is no indication from the progression or phrasing of the prosecutor’s

questions that she sought to elicit it. We also note that, after the challenged testimony

was given, the prosecutor promptly changed course to other topics.            We therefore

conclude that the prosecutor did not plainly err in eliciting the challenged testimony.

       Recordings of 911 Call and Statement

       Evans argues that the prosecutor elicited inadmissible evidence by offering into

evidence the recordings of D.E.’s 911 call and the statement that she gave to a responding

officer. Evans specifically argues that it was improper to offer this evidence during

D.E.’s testimony in the state’s case-in-chief because D.E.’s credibility had not yet been

challenged. As a threshold matter, 911 call recordings are frequently admitted into

evidence on a variety of bases unrelated to bolstering credibility. E.g., State v. Taylor,

650 N.W.2d 190, 205 (Minn. 2002) (“The district court did not abuse its discretion in

concluding that the 911 tape was relevant evidence. The tape provided evidence of


                                             9
appellant’s state of mind near the time of the murder and undermined the defense theory

that appellant was calm during the family dispute. As to the hearsay objection to the

tape, the district court properly ruled that the tape qualified as a present sense impression

under Rule 801(d)(1)(D), an excited utterance under Rule 803(2), and an admission by a

party-opponent under Rule 801(d)(2)(A).”).

       An out-of-court statement such as a 911 call or statement to an investigator can

also be admissible as substantive evidence if (1) “the declarant testifies at the trial or

hearing”; (2) the declarant “is subject to cross-examination concerning the statement”;

(3) the statement is “consistent with the declarant’s testimony”; and (4) the statement is

“helpful to the trier of fact in evaluating the declarant’s credibility as a witness.” State v.

Nunn, 561 N.W.2d 902, 908 (Minn. 1997) (quotation omitted). Here, D.E. testified and

was subject to cross-examination concerning the recordings, which were consistent with

her trial testimony.

       Evans is correct that the statements were offered before he had challenged D.E.’s

credibility through cross-examination, but credibility was a central issue in the case from

the beginning. In his opening statement, Evans made pointed comments to the jury about

his negative opinion of D.E.’s mental health. During his cross-examination of D.E.,

Evans inquired about her recollection, motives, mental health, and medication. We

conclude that Evans has not met his burden of showing that the prosecutor committed

plain error by offering into evidence the recorded 911 call and D.E.’s recorded statement.

In any event, Evans was not prejudiced by the timing of the offering because the evidence




                                              10
would undoubtedly have been properly admitted (albeit less efficiently) after Evans’s

cross-examination of D.E.

       Misstating the Law in Closing Argument

       Evans argues that the prosecutor misstated the law during closing argument.

Misstatements of law constitute prosecutorial misconduct.        State v. Strommen, 648

N.W.2d 681, 686 (Minn. 2002) (holding that “the prosecutor engaged in misconduct

when he . . . misstated the law”).     Neither party cites any case law addressing the

circumstances here, where the district court provided an erroneous instruction, and the

prosecutor merely repeated the instruction in the context of addressing the evidence

presented at trial. Although we have concluded that the instruction was erroneous, this is

not a case in which the prosecutor attempted to capitalize on a known error—or even a

disputed instruction.     We conclude under the facts of this case that re-reading the

unobjected-to but erroneous jury instruction in closing argument does not rise to the level

of prosecutorial error.

       Affirmed.




                                            11
ROSS, Judge (dissenting)

       I respectfully dissent in part. I would remand for a new trial on the sole ground

that the district court committed what I believe is plain, reversible error when it instructed

the jury that it could convict Evans of the charged crime even if it did not find that he

committed an element of the specifically charged crime in the criminal complaint.

       The majority accurately describes the underlying law. By rule in Minnesota,

criminal jury verdicts must be unanimous. Minn. R. Crim. P. 26.01, subd. 1(5); State v.

Pendleton, 725 N.W.2d 717, 730 (Minn. 2007). We apply this rule the same way the

federal courts have applied a similar federal rule. In Richardson v. United States, the

federal Supreme Court surveyed earlier cases and concluded that “a jury in a federal

criminal case cannot convict unless it unanimously finds that the Government has proved

each element” of the crime of conviction. 526 U.S. 813, 817, 119 S. Ct. 1707, 1710

(1999). Borrowing from federal precedent to construe the state’s unanimous-verdict rule,

our state supreme court echoes exactly that “a jury must unanimously find that the

government has proved each element of the offense.” Pendleton, 725 N.W.2d 717, 730–

31 (quotation omitted).

       The majority also accurately observes that the rule requires jury unanimity only as

to whether the state has proved each element; it does not require jury unanimity as to the

means by which the state has proved each element. See id. at 731; See also Richardson,

526 U.S. at 817, 119 S. Ct. at 1710. And the majority reasonably highlights our decision

in State v. Dalbec, where we held that the different subparts of the domestic abuse

subdivision were “alternative means by which an assault may be committed, either by


                                            D-1
intentionally causing fear of immediate bodily harm . . . or intentionally inflicting . . .

bodily harm.” 789 N.W.2d 508, 512–13 (Minn. App. 2010), review denied (Minn.

Dec. 22, 2010). My problem with the conviction here is that the state’s very specific

criminal complaint did not charge Evans broadly and alternatively with either

intentionally causing fear of bodily harm or intentionally inflicting bodily harm; it

particularly charged him only with intentionally inflicting bodily harm. The state’s choice

to identify only one of the two alternative grounds for domestic assault fundamentally

distinguishes this case from Dalbec. In Dalbec, we decided only whether the district

court plainly erred by failing to instruct the jury that it must “unanimously determine

which action, among several proved, supported the element of assault in a charge of

domestic assault.” Id. at 513 (emphasis added).

       In my view, it is critical that the state chose to limit the complaint and charge

Evans with assault only on the ground that Evans intentionally physically harmed his

wife, not that he generally committed domestic assault (as in Dalbec) or that he

intentionally put her in fear of harm. Because of this, I believe that the district court

unintentionally but materially misled the jury when it instructed it to deem Evans guilty

of assault if it found he meant only to put her in fear, even if he did not “intend[] to inflict

bodily harm or death.” I therefore disagree with the majority that Dalbec saves the

district court’s error from being characterized as plain. I think a district court plainly errs

when it tells a jury that it can convict a defendant based on conduct that the state omitted

from its narrowly drafted criminal complaint.




                                             D-2
       I add that even if this case presented the same question we answered in our Dalbec

decision, the answer might be different today because the continued viability of our

holding in Dalbec may be in doubt. After we decided Dalbec, the supreme court decided

State v. Fleck, 810 N.W.2d 303 (Minn. 2012). The Fleck court did not suggest that

assault-by-fear and assault-by-bodily-harm are the same offense, as we held in Dalbec

and as the state urges in this case. It instead treated these separately, as two distinct

offenses, not merely as two distinct means of committing the same offense. See id. at

308. It addressed the general assault provision of section 609.02, which defines

“[a]ssault” as “(1) an act done with intent to cause fear in another of immediate bodily

harm or death; or (2) the intentional infliction of or attempt to inflict bodily harm upon

another.” Minn. Stat. § 609.02, subd. 10 (2012). This wording is substantively identical to

the wording of the domestic abuse statute, which criminalizes “(1) . . . an act with intent

to cause fear in another of immediate bodily harm or death; or (2) [an act that]

intentionally inflicts or attempts to inflict bodily harm upon another.” Minn. Stat.

§ 609.2242, subd. 1 (2012). More than a dozen times, the Fleck court referred to these as

separate offenses, not merely as different means to complete the same offense, calling one

“an assault-fear offense” and the other “an assault-harm offense.” 810 N.W.2d 303, 303–

12. This repeated distinction culminated with the court’s describing each as a separate

“crime”: “We now clarify that assault-harm, Minn. Stat. § 609.02, subd. 10(2)

(prohibiting the intentional infliction of bodily harm), is a general-intent crime, that

assault-fear, Minn. Stat. § 609.02, subd. 10(1) (prohibiting an act done with the intent to

cause fear in another of immediate bodily harm or death) is a specific-intent crime.” Id. at


                                            D-3
312. The supreme court’s post-Dalbec analysis in Fleck adds to my view that the district

court committed plain error.

       I also believe that this plain error is the kind that warrants reversal for a new trial.

Although the prosecutor’s closing argument appropriately discussed the relevant question

of whether Evans intentionally physically harmed his wife, it also emphasized the district

court’s erroneous instruction that the jury need not find intentional bodily harm to

convict:

              Let’s look at the elements of the offense. The first element is
              that the defendant intentionally inflicted or attempted to
              inflict bodily harm. Bodily harm is physical pain or injury,
              illness, and any impairment of physical condition. The
              instruction also goes on to note that it’s not necessary if
              the defendant intended to inflict bodily harm or death but
              that the defendant intended that Mrs. Evans would fear
              that.

So in the same statement in which the prosecutor mentioned the relevant elements, he

also emphasized the false instruction that it was “not necessary” to a guilty verdict for the

jury to find that the only charged element had been proved. This erroneous reference by

the prosecutor compounded the prejudice created by the district court’s instructional

error, and it followed several questions by the prosecutor during trial eliciting Evans’s

wife to testify that she was fearful during the episode.

       Given the district court’s erroneous instruction (that intentionally-caused fear is

enough to convict), the prosecutor’s questioning (eliciting testimony that Evans caused

fear), and the prosecutor’s closing argument (that the jury could convict based solely on

intentionally-caused fear), I would reverse the conviction as the fruit of a plain error. I



                                             D-4
agree with the majority that evidence of actual bodily harm existed (the officer testified to

bruising), but this evidence was not so overwhelming to avoid reversal. This is because

one or more juror might not have been persuaded by the state’s evidence of intentional

harm; this hypothetical juror may have relied instead on the testimony about fear and

been persuaded to convict by the repeated instruction “that it’s not necessary if the

defendant intended to inflict bodily harm or death but that the defendant intended that

Mrs. Evans would fear that.”

       I think the compounded mistake require us to reverse and order a new trial.




                                            D-5
