                          This opinion will be unpublished and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
                                     A15-1981

                                   State of Minnesota,
                                      Respondent,

                                            vs.

                                   Shawn Patrick Rush,
                                       Appellant.

                                 Filed October 11, 2016
                                        Affirmed
                                     Stauber, Judge

                              Ramsey County District Court
                                File No. 62-CR-15-253

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

John J. Choi, Ramsey County Attorney, Peter R. Marker, Assistant County Attorney, St.
Paul, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Roy G. Spurbeck, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

       Considered and decided by Jesson, Presiding Judge; Stauber, Judge; and

Reilly, Judge.

                        UNPUBLISHED OPINION

STAUBER, Judge

       On appeal from his conviction of possession of a theft tool, appellant argues that

the prosecutor committed prejudicial misconduct when he argued during his rebuttal
closing argument that the jury could consider that appellant failed to call a witness

referenced in appellant’s testimony when evaluating his credibility. Because the state

demonstrated that there was no reasonable possibility that the misconduct significantly

affected the jury’s verdict, we affirm.

                                           FACTS

       In January 2015, appellant Shawn Rush was charged with possession of a theft tool

in violation of Minn. Stat. § 609.59 (2014). At trial, A.K.A. testified that he is the owner of

an auto-body-repair shop in Maplewood. According to A.K.A., his business is “connected”

to a car-wash business, and, depending on how busy he is, he may have anywhere from 10

to 30 cars parked in the parking lot.

       A.K.A. testified that on November 7, 2014, he noticed something moving underneath

one of his Jeep Grand Cherokees, but that he “didn’t pay attention” to it because he was

moving a car for a customer. A few minutes later, however, when he returned with another

vehicle, A.K.A. observed the Jeep “wobbling,” and when he looked down, he saw two legs

sticking out from underneath the Jeep. According to A.K.A., a person later identified as

appellant, was lying on his back with his “toes pointed up in the air.” A.K.A. could also

hear sounds coming from under the Jeep like “something . . . metal to metal.”

       A.K.A. testified that he yelled at appellant, and when appellant stood up, he was

holding a pipe cutter. Appellant then tried to run away, but A.K.A. and his employees were

able to detain him until the police arrived. Further investigation revealed that one side of

the Jeep’s catalytic converter had been “cut off,” and “the other side was almost cut off.”




                                               2
A.K.A. claimed that “a lot” of catalytic converters had been stolen from his and a nearby

business property and that a used catalytic converter can garner $100 to $150 in cash.

       Appellant denied possessing the pipe cutter or trying to steal the catalytic converter.

Instead, appellant explained that he was at the car wash next to A.K.A.’s body shop with his

friend B.P. According to appellant, he decided to walk home from the car wash because he

was tired of waiting while B.P. cleaned his car. Appellant claimed that as he “cut between

the cars” on A.K.A.’s lot, he dropped his cigarette lighter, and when he “crawled”

underneath the car to pick it up, he noticed a tool next to his lighter. Appellant testified that

as he was retrieving his lighter, he heard someone yelling at him and that when he crawled

out from underneath the vehicle, A.K.A. and his employees detained him.

       Appellant did not call his friend B.P. as a witness in his defense. During rebuttal

closing argument, the prosecutor mentioned B.P.’s absence from the proceedings and

invited the jury to judge the credibility of appellant’s story based on B.P.’s absence from the

trial. Appellant did not object to the prosecutor’s comments. The jury subsequently found

appellant guilty of the charged offense. The district court then stayed imposition of

sentence and placed appellant on probation. This appeal followed.

                                       DECISION

       This court reviews unobjected-to alleged prosecutorial misconduct under a

modified plain-error test. State v. Carridine, 812 N.W.2d 130, 146 (Minn. 2012). Three

prongs must be satisfied under this test: there must be error, that is plain, and that affected

the defendant’s substantial rights. State v. Ramey, 721 N.W.2d 294, 302 (Minn. 2006).

The defendant must establish the first two prongs of the test before the burden shifts to


                                                3
the state to prove that the error did not affect the defendant’s substantial rights.

Carridine, 812 N.W.2d at 146. If we determine that a plain error affected the defendant’s

substantial rights, we “may correct the error only if it seriously affects the fairness,

integrity or public reputation of judicial proceedings.” State v. Mosley, 853 N.W.2d 789,

801 (Minn. 2014), cert denied 135 S. Ct. 1185 (2015) (quotations omitted)

       A prosecutor has “considerable latitude” in a closing argument. State v. Williams,

586 N.W.2d 123, 127 (Minn. 1998). But “[i]t is well settled that a prosecutor may not

comment on a defendant’s failure to call a witness.” State v. Mayhorn, 720 N.W.2d 776,

787 (Minn. 2006). The supreme court has provided two reasons for this rule: “(1) the

comment suggests that the defendant bears some burden of proof; and (2) the comment

suggests that the defendant did not call the witness because his or her testimony would be

unfavorable.” Id.

       Appellant argues that it was plain error for the prosecutor to comment on

appellant’s failure to call B.P. as a witness. The state concedes that the “prosecutor’s

argument was plainly erroneous.” But the state argues that the error did not affect

appellant’s substantial rights because the evidence against him was “overwhelming.”

       We agree. The state bears the burden to “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.” Ramey, 721 N.W.2d at 302 (quotation omitted). 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. Davis, 735 N.W.2d 674, 682 (Minn. 2007).


                                               4
       Here, the evidence against appellant was very strong. A.K.A. testified that on the

date of the alleged offense, he initially observed movement under a Jeep while moving a

vehicle, and, when he returned to the Jeep a few minutes later, he observed appellant

underneath the vehicle. According to A.K.A., appellant was lying underneath the vehicle

with his toes pointed in the air as if he was doing something to the undercarriage of the

Jeep. A.K.A testified that when he yelled, appellant emerged from underneath the

vehicle holding a pipe cutter and tried to flee the scene. A.K.A. testified that his body

shop does not use pipe cutters and does not work on vehicles outside due to city

regulations. Further evidence showed that the exhaust pipe next to the catalytic converter

had fresh cut marks, and A.K.A testified that a used catalytic converter can garner $100

to $150 in cash. A.K.A. also testified that “a lot” of catalytic converters had been stolen

from his and a nearby business property. Thus, the prosecutor’s comment noting

appellant’s failure to produce B.P. as a witness had very little impact on the case.

       Moreover, a review of the record demonstrates that the misconduct was not

pervasive. The misconduct was brief, at the end of trial, and there are no other

allegations of prosecutorial misconduct. Although appellant did not have the opportunity

to rebut the argument because the misconduct occurred during rebuttal, the state’s

demonstration that its case was very strong and that the misconduct was not pervasive

show that the error did not affect appellant’s substantial rights. Therefore, appellant is

not entitled to a new trial.

       Affirmed.




                                              5
