                          This opinion will be unpublished and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
                                     A15-0190

                                   State of Minnesota,
                                      Respondent,

                                           vs.

                                   Philip Lee Carlson,
                                        Appellant.

                                  Filed March 14, 2016
                                        Affirmed
                                    Schellhas, Judge

                             Hennepin County District Court
                               File No. 27-CR-11-29604

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

Michael O. Freeman, Hennepin County Attorney, Brittany D. Lawonn, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Michael W. Kunkel, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

         Considered and decided by Worke, Presiding Judge; Schellhas, Judge; and Reyes,

Judge.
                         UNPUBLISHED OPINION

SCHELLHAS, Judge

       On appeal from his conviction of felony theft by swindle, appellant argues that the

district court committed plain error that affected his substantial rights when instructing the

jury on accomplice liability. Appellant also makes numerous pro se arguments. We affirm.

                                          FACTS

       Appellant Philip Lee Carlson and his wife Virginia Marie Carlson owned

Sugarwoods Office Center LLC, which owned 49% of Amber Woods Office Center LLC.1

In September 2006, Amber Woods and First Commercial Bank closed on a construction

loan to build an office condominium (Amber Woods project). The loan agreement provided

that loan funds would be disbursed over time in response to requests to pay for completed

work on the Amber Woods project (draw requests) and supporting documents regarding

completed work, including invoices and lien waivers from subcontractors.

       Interspace, an entity owned by Philip Carlson and Virginia Carlson, was the general

contractor for the Amber Woods project. In or around October 2007, the bank received

draw request one from Interspace. Draw request one was unsigned; Amber Woods and

Interspace were listed below the blank signature lines. Draw request one was accompanied

by supporting documents including an invoice purportedly from Sundblad Construction

(Sundblad) and a lien waiver signed by Virginia Carlson for Interspace and purportedly



1
 The remaining 51% of Amber Woods was owned by Hilloway East LLC, which was
owned by Robert Roos, Michael Leuer, and James Fenning.


                                              2
signed by John Sundblad for Sundblad. In reliance on draw request one and its supporting

documents, the bank released $173,988.73 in loan funds; the funds were disbursed by a

check payable to “Sunblad [sic] & Interspace.” John Sundblad purportedly endorsed the

check, and the funds were deposited into an Interspace account. Interspace subsequently

issued a check, signed by Virginia Carlson, to “Sunblad [sic]” in the amount of $55,860.91.

       In or around November 2007, the bank received draw request two from Interspace.

Draw request two was signed by Philip Carlson for Interspace and Amber Woods. Draw

request two was accompanied by supporting documents including an invoice purportedly

from Sundblad and a lien waiver signed by Virginia Carlson for Interspace and purportedly

signed by John Sundblad for Sundblad. The supporting documents also included an invoice

purportedly from Alpine Landscape Inc. and a lien waiver signed by Virginia Carlson for

Interspace and unsigned by any Alpine agent. In reliance on draw request two and its

supporting documents, the bank made two distinct releases of loan funds: a $224,689.64

check whose payees were “Interspace & Sunbald [sic],” and a $38,126.25 check whose

payees were “Interspace & Alpine.” The larger check was endorsed by John Sundblad; the

smaller check was endorsed “Interspace Logan Ryan, for Alpine.” Both checks were

deposited into an Interspace account. Interspace subsequently issued a check, signed by

Virginia Carlson, to Sundblad in the amount of $121,686.57. Alpine received no portion

of the released funds.

       In or around January 2008, the bank received draw request three from Interspace.

Draw request three was signed by Philip Carlson for Interspace and Amber Woods. Draw

request three was accompanied by supporting documents including an invoice from Logan


                                            3
Ryan Corporation, which was owned by Philip Carlson and Virginia Carlson, and a lien

waiver signed by Virginia Carlson for Interspace and illegibly signed on behalf of Logan

Ryan.2 In or around February 2008, in reliance on draw request three and its supporting

documents, the bank released $31,985 in loan funds; the funds were disbursed by a check

whose payee was Logan Ryan. The check was endorsed “Logan Ryan Corporation,” and

the funds were deposited into a Logan Ryan account.

      In or around May 2008, the bank received draw request four from Interspace. Draw

request four was signed by Philip Carlson for Amber Woods and was signed by Virginia

Carlson for Interspace and Amber Woods. Draw request four was accompanied by

supporting documents including an invoice from Logan Ryan and a lien waiver illegibly

signed on behalf of Logan Ryan.3 In reliance on draw request four and its supporting

documents, the bank released $164,522 in loan funds; the funds were disbursed by a check

whose payee was Logan Ryan. The check was endorsed “partial” and “Logan Ryan Corp.,”

and the funds were deposited into a Logan Ryan account.

      In or around July 2008, the bank received draw request five from Interspace. Draw

request five was unsigned; Interspace, Amber Woods, Roos, Leuer, and Fenning were

listed below the blank signature lines. Draw request five was accompanied by supporting

documents including an invoice from Logan Ryan and a financial statement purportedly


2
  The lien waiver may have been signed “Rory Synstelien” on behalf of Logan Ryan.
Synstelien, who is Virginia Carlson’s son and Philip Carlson’s stepson, testified that he
had no association with Logan Ryan and did not sign the lien waiver.
3
 The lien waiver may have been signed “Rory Synstelien” on behalf of Logan Ryan.
Synstelien testified that he did not sign the lien waiver.

                                           4
from Palo Companies Inc. The bank released no loan funds in reliance on draw request five

and its supporting documents because subcontractors had begun to file liens against the

Amber Woods project. Work stopped on the Amber Woods project in late 2008 or early

2009.

        In or around October 2010, Roos and an agent of the bank went to police and

reported suspected fraud by Philip Carlson and Virginia Carlson. Police investigated and

determined that Philip Carlson and Virginia Carlson had committed “some fraud . . . or

some theft by swindle” in connection with the five draw requests. In September 2011,

respondent State of Minnesota charged Philip Carlson with four counts of felony theft by

swindle and one count of attempted felony theft by swindle, under Minn. Stat. § 609.52,

subds. 2(4), 3(1) (2006); each count was charged with reference to Minn. Stat. § 609.05

(2006), the accomplice-liability statute.4 Virginia Carlson was identically charged, and the

district court granted the state’s motion to join the cases against Philip Carlson and Virginia

Carlson.

        The district court conducted a consolidated jury trial in August 2014. The state

presented evidence that the five draw requests and their supporting documents were

fraudulent in that the Sundblad, Alpine, and Palo invoices/statements did not originate from

those companies; the Sundblad and Palo invoices/statements overreported the work

completed by and the amounts owed to those companies; the Logan Ryan invoices reflected



4
  Count one was based on draw request one; counts two and three were based on draw
request two; count four was based on draw requests three and four; and count five was
based on draw request five.

                                              5
work that was not completed by that company and sought amounts that consequently were

not owed to that company; and the lien waivers reflected payments that, in whole or in part,

were not actually made to the companies whose waivers were sought. The state also

presented evidence that each of the first four draw requests resulted in the bank’s release

of loan funds that ultimately came into the possession of Philip Carlson and Virginia

Carlson. The jury found Philip Carlson and Virginia Carlson guilty as charged, and Philip

Carlson and Virginia Carlson each were convicted of a single count (count one) of felony

theft by swindle and sentenced to 21 months’ imprisonment, with execution stayed for 5

years and 365 days’ local confinement.

       Philip Carlson appeals.5

                                       DECISION

Accomplice-liability instruction

       “[A] failure to object to jury instructions precludes review unless the appellant can

show that there was a plain error affecting substantial rights.” Gulbertson v. State, 843

N.W.2d 240, 247 (Minn. 2014). Such an error is grounds for reversal “only if it seriously

affects the fairness, integrity, or public reputation of judicial proceedings.” State v. Taylor,

869 N.W.2d 1, 15 (Minn. 2015) (quotations omitted). “An error is plain if it is clear or

obvious; this means an error that violates or contradicts case law, a rule, or an applicable

standard of conduct.” State v. Mosley, 853 N.W.2d 789, 801 (Minn. 2014), cert. denied,


5
 We declined to consolidate this appeal with Virginia Carlson’s appeal of her conviction.
State v. Philip Carlson, No. A15-0190 (Minn. App. Oct. 13, 2015) (order). We therefore
address Virginia Carlson’s appeal separately. State v. Virginia Carlson, No. A15-0179, slip
op. (Minn. App. Mar. 14, 2016).

                                               6
135 S. Ct. 1185 (2015). “An error affects a defendant’s substantial rights when there is a

reasonable likelihood that the instruction had a significant effect on the jury verdict.” State

v. Davis, 864 N.W.2d 171, 178 (Minn. 2015). An appellant bears the heavy burden of

proving that an erroneous jury instruction had a significant effect on the verdict. State v.

Wenthe, 865 N.W.2d 293, 299 (Minn. 2015), cert. denied, 136 S. Ct. 595 (2015).

       In this case, the district court instructed the jury on accomplice liability with regard

to Philip Carlson:

                     Liability for crimes of another. Defendant Philip
              Carlson is guilty of a crime committed by another person when
              he has intentionally aided the other person in committing it or
              has intentionally advised, hired, counseled, conspired with or
              otherwise procured the other person to commit it. Defendant
              Philip Carlson is guilty of a crime, however, only if the other
              person commits the crime. Defendant Philip Carlson is not
              liable criminally for aiding, advising, hiring, counseling,
              conspiring or otherwise procuring the commission of a crime
              unless some crime, including an attempt, is actually
              committed.

The court gave a nearly identical instruction with regard to Virginia Carlson. Philip Carlson

did not object to these instructions, which tracked the language of the accomplice-liability

statute. See Minn. Stat. § 609.05, subd. 1 (“A person is criminally liable for a crime

committed by another if the person intentionally aids, advises, hires, counsels, or conspires

with or otherwise procures the other to commit the crime.”). But the court also was required

to

              explain to the jury that in order to find a defendant guilty as an
              accomplice, the jury must find beyond a reasonable doubt that
              the defendant knew his alleged accomplice was going to
              commit a crime and the defendant intended his presence or
              actions to further the commission of that crime.


                                              7
State v. Milton, 821 N.W.2d 789, 808 (Minn. 2012). The court’s failure to so explain is

plain error. State v. Kelley, 855 N.W.2d 269, 277–78 (Minn. 2014). The state rightly

concedes this point.

       The issue before us is whether the district court’s plain error affected Philip

Carlson’s substantial rights; that is, whether a reasonable likelihood exists that the jury’s

verdict would have been different had the court properly instructed the jury regarding

accomplice liability. Philip Carlson argues that

              [t]hough the evidence demonstrated that each of the Carlsons
              signed documents and took actions that ultimately became
              components of a fraud perpetrated against [the bank], the state
              nevertheless had difficulty establishing that any of the
              individual acts by either of the [Carlsons] was undertaken with
              either (1) the knowledge that a crime was being committed, or
              (2) the intent that such an act would aid in its commission.

According to Philip Carlson, the state’s purported difficulty establishing that he acted with

knowledge of the crimes and intent to aid their commission shows that a reasonable

likelihood exists that the jury would not have found him guilty had it been instructed

properly under Milton.

       But the state proved that in July 2007, Philip Carlson and Virginia Carlson

complained that they had been “den[ied] . . . any type of payment that they requested” from

the bank and that “they wanted to find a way . . . to get money through somebody else’s

invoice.” On the same occasion, “[Philip Carlson and Virginia Carlson] talked about asking

[John] Sundblad to put their fee onto his invoice and then [John] Sundblad could pay them

for what they thought they were owed.” About three months after Philip Carlson and

Virginia Carlson made those statements, Interspace caused the first of five fraudulent draw


                                             8
requests to be transmitted to the bank, and the first two fraudulent draw requests involved

John Sundblad.

       The state also proved that Philip Carlson and Virginia Carlson owned Interspace,

acted on behalf of Interspace, “were the only ones submitting and putting together draw

requests” in connection with the Amber Woods project, “knew all the specific line items”

on the draw requests, “knew all the detail of the [draw requests and the supporting]

documents,” and “talked about the documents as if they had prepared them.” Philip Carlson

personally signed draw requests two, three, and four, and Virginia Carlson personally

signed supporting documents in connection with draw requests one, two, three, and four

and checks in connection with draw requests one and two. In connection with draw request

two, Philip Carlson induced John Sundblad to endorse a check disbursing loan funds in an

amount that was not owed to Sundblad; the check then was deposited into an Interspace

account. And each of the first four draw requests resulted in the bank’s release of loan

funds that ultimately came into the possession of Philip Carlson and Virginia Carlson.

       Moreover, Philip Carlson’s defense was not that he did not know that Virginia

Carlson was going to commit theft by swindle; neither was Philip Carlson’s defense that

he did not intend his presence or actions to further Virginia Carlson’s commission of theft

by swindle. Rather, Philip Carlson’s defense was that “[t]here [wa]s no theft by swindle.”

Philip Carlson attempted to characterize the fraudulent draw requests as the result of “poor

business practices,” “very sloppy bookkeeping,” and “less-than-meticulous attention to

detail.” This defense strategy was consistent with that of Virginia Carlson, including her




                                             9
presentation of expert testimony by a certified public accountant that “more money went

out for the [Amber Woods] project than what came in.”

       We look to supreme court caselaw for guidance here. In Kelley, the appellant

challenged his conviction of first-degree aggravated robbery based on an unobjected-to

jury instruction on accomplice liability. Id. at 272. The supreme court concluded that the

district court plainly erred in “fail[ing] to explain the intentionally aiding element [of

accomplice liability] as required by Milton.” Id. at 275, 277–78. Yet the supreme court also

concluded that “there is no reasonable likelihood that the erroneous jury instruction had a

significant effect on the jury verdict because there is considerable evidence of [the

appellant]’s guilt, and his defense did not focus on accomplice liability.” Id. at 284. The

court noted that “[the appellant] did not argue that he did not know the other person was

going to commit the crime, or that he did not intend his presence to further the commission

of the crime.” Id.

       Similarly in this case, the state presented strong evidence that Philip Carlson and

Virginia Carlson formed and executed a plan to trick the bank into releasing loan funds and

to gain possession of those funds. And Philip Carlson made no claim that he was unaware

of Virginia Carlson’s crimes or that he had no intent to aid Virginia Carlson’s commission

of the crimes; instead, he argued that no crimes were committed. Philip Carlson has not

met his heavy burden to prove a reasonable likelihood that the jury would not have found

him guilty had it been instructed properly under Milton. The district court’s plain error

therefore did not affect Philip Carlson’s substantial rights and is not grounds for reversal.




                                             10
Pro se arguments

       Sufficiency of the evidence

       “It is axiomatic that it is the State’s burden to prove every element of the charged

offense.” State v. Struzyk, 869 N.W.2d 280, 289 (Minn. 2015). “The elements of theft by

swindle are: (i) the owner of the property gave up possession of the property due to the

swindle; (ii) the defendant intended to obtain for himself or someone else possession of the

property; and (iii) the defendant’s act was a swindle.” State v. Pratt, 813 N.W.2d 868, 873

(Minn. 2012); see also Minn. Stat. § 609.52, subd. 2(4) (providing that a person commits

theft who “by swindling, whether by artifice, trick, device, or any other means, obtains

property or services from another person”).6 “The essence of a swindle is the defrauding

of another of his property by deliberate artifice.” State v. Olkon, 299 N.W.2d 89, 106

(Minn. 1980). “[P]ermanent deprivation [of the property] is not an element of theft by

swindle.” Pratt, 813 N.W.2d at 875 (quotation marks omitted). And the state need not

prove that the swindler acted without claim of right to the property. See State v. Ray, 390

N.W.2d 843, 846–47 (Minn. App. 1986) (rejecting appellant’s argument that he had a right

to trick victims into paying him for legal services and concluding that swindle was

complete “when appellant intentionally tricked [victims] into giving $10,000 for an appeal

bond,” reasoning that “[w]hether [victims] received legal services, either before or after




6
  Because Philip Carlson was convicted of felony theft by swindle, the state was required
to prove an additional element: that “the value of the property or services stolen is more
than $35,000.” Minn. Stat. § 609.52, subd. 3(1). But Philip Carlson does not contest the
sufficiency of the evidence to prove the value element of felony theft by swindle.

                                            11
they gave the $10,000, is immaterial to the criminal charge because they gave the $10,000

for a bond, not in payment for legal services”).

       “A person is criminally liable for a crime committed by another if the person

intentionally aids, advises, hires, counsels, or conspires with or otherwise procures the

other to commit the crime.” Minn. Stat. § 609.05, subd. 1. “‘[I]ntentionally aids’ includes

two important and necessary principles: (1) that the defendant knew that his alleged

accomplices were going to commit a crime, and (2) that the defendant intended his presence

or actions to further the commission of that crime.” State v. McAllister, 862 N.W.2d 49, 52

(Minn. 2015) (quotations omitted). “Intent generally is proved circumstantially, by

inference from words and acts of the actor both before and after the incident.” State v. Cox,

798 N.W.2d 517, 537 (Minn. 2011) (quotation omitted).

       Philip Carlson makes various arguments that appear to attack the sufficiency of the

circumstantial evidence to support his conviction of felony theft by swindle. We evaluate

the sufficiency of circumstantial evidence using a two-step test. State v. Fox, 868 N.W.2d

206, 223 (Minn. 2015), cert. denied, 136 S. Ct. 509 (2015). We first identify the

circumstances proved, “defer[ring] to the fact-finder’s acceptance of the proof of these

circumstances and the fact-finder’s rejection of evidence in the record that conflicts with

the circumstances proved by the State.” Id. Then we “examine independently the

reasonable inferences that might be drawn from the circumstances proved.” Id. “To sustain

a conviction based on circumstantial evidence, the reasonable inferences that can be drawn

from the circumstances proved as a whole must be consistent with the hypothesis that the

accused is guilty and inconsistent with any rational hypothesis except that of guilt.” Id.


                                             12
       In our analysis of the jury-instruction issue, we already have identified the

circumstances proved in this case. We conclude that these circumstances are consistent

with the hypothesis that Philip Carlson intentionally aided or conspired with Virginia

Carlson in each count of commission and attempted commission of theft by swindle. We

further conclude that these circumstances are inconsistent with any rational hypothesis

except that Philip Carlson intentionally aided or conspired with Virginia Carlson in each

count of commission and attempted commission of theft by swindle. We therefore reject

Philip Carlson’s sufficiency-of-the-evidence arguments.

       Prosecutorial misconduct

       Philip Carlson also argues that the prosecutor committed misconduct by referring

to the draw requests and their supporting documents as “false,” “fake,” and “fraudulent”;

claiming that Philip Carlson and Virginia Carlson planned to swindle the bank; presenting

false testimony and exhibits; and arguing in closing that “this case is not about how Philip

[Carlson] and Virginia Carlson used the loan funds, nor is it about whether the defendants

claim to have a right to the loan funds.” “In reviewing a claim of prosecutorial misconduct,

we first examine the challenged conduct to determine whether any error occurred.” State

v. Mogler, 719 N.W.2d 201, 211 (Minn. App. 2006). We have examined closely the

challenged conduct and conclude that the prosecutor’s arguments and presentation of

evidence did not constitute error.

       Brady violation

       “A failure by the State to disclose material, exculpatory evidence justifies a new

trial.” State v. Brown, 815 N.W.2d 609, 622 (Minn. 2012) (citing Brady v. Maryland, 373


                                            13
U.S. 83, 87–88, 83 S. Ct. 1194, 1196–97 (1963)). “To establish a Brady violation, it must

be true that: (1) the evidence at issue is favorable to the accused, either because it is

exculpatory or it is impeaching; (2) the evidence was willfully or inadvertently suppressed

by the State; and (3) prejudice to the accused resulted.” Id. “Whether a discovery violation

occurred presents a question of law, which [appellate courts] review de novo.” State v.

Colbert, 716 N.W.2d 647, 654 (Minn. 2006).

       Philip Carlson appears to argue that the state committed a Brady violation by

delaying its subpoena of documents regarding the Amber Woods project from the Federal

Deposit Insurance Corporation (FDIC documents) and by failing to more thoroughly

investigate and disclose the financial details of the project. Philip Carlson generally asserts

that the allegedly suppressed evidence is favorable to him, but he makes no attempt to

identify particular evidence that is either exculpatory or impeaching. Moreover, he

provides no authority for his argument that the timing of the state’s subpoena and the scope

of the state’s investigation constitute suppression of evidence under Brady. Finally, while

he baldly asserts that the alleged suppression was prejudicial, he does not attempt to explain

how prejudice resulted. We conclude that Philip Carlson has failed to establish any element

of a Brady violation.

       Right to testify

       “A defendant’s right to testify is protected by the Due Process Clause of the United

States Constitution and Minnesota law.” Andersen v. State, 830 N.W.2d 1, 11 (Minn.

2013). “The defendant’s waiver [of that right] must be knowingly and voluntarily made.”

Id. “The defendant has the burden of proving that he or she did not voluntarily and


                                              14
knowingly waive the right to testify.” Id. “Absent a finding to the contrary, [appellate

courts] presume that the defendant waived the right to testify for the reasons stated on the

record.” Id.; see also State v. Smith, 299 N.W.2d 504, 506 (Minn. 1980) (“Without anything

in the record suggesting otherwise, we must presume that the decision not to testify was

made by defendant voluntarily and intelligently.”)

       Philip Carlson argues that the state “filed a second case of attempted theft by swindle

against [him] days before trial as a virtual ‘gag order’ to prevent [him] from testifying on

[his] own behalf under the threat of perjury and/or impeachment.” But the record shows

that, prior to Philip Carlson’s waiver of his right to testify, the district court addressed him

personally regarding the existence and substance of his testimonial rights. Philip Carlson

affirmed that he understood his rights and that he had no questions about what the court

had said. Philip Carlson also engaged in the following colloquy immediately prior to

waiving his right to testify:

              THE COURT: Mr. Philip Carlson, have you had enough time
              to talk with your lawyer about this?
              PHILIP CARLSON: Yes.
              THE COURT: Has your lawyer answered all of your
              questions?
              PHILIP CARLSON: Yes.
              THE COURT: Okay. Then what is it you would like to do?
              Testify or not testify?
              PHILIP CARLSON: Not testify.
              THE COURT: Is it your own personal choice not to testify?
              PHILIP CARLSON: Yes.

Because nothing in the record suggests that Philip Carlson’s waiver of his right to testify

was coerced by the state or otherwise was not knowing and voluntary, we reject his

argument to the contrary.


                                              15
        Miscellaneous arguments

        Philip Carlson argues that he was entitled to dismissal of the indictment against him

because the state failed to disclose exculpatory evidence to the grand jury. But Philip

Carlson was charged by complaint, not by indictment. Philip Carlson identifies no

deficiency in the complaint. Consequently, this argument warrants no further

consideration.

        Philip Carlson argues that the draw requests and their supporting documents were

inadmissible under Minn. R. Evid. 408. That rule provides that

                      [e]vidence of (1) furnishing or offering or promising to
               furnish, or (2) accepting or offering or promising to accept, a
               valuable consideration in compromising or attempting to
               compromise a claim which was disputed as to either validity or
               amount, is not admissible to prove liability for or invalidity of
               the claim or its amount.

Minn. R. Evid. 408. The rule mandates exclusion in a civil suit of evidence of settlement

negotiations regarding the claims underlying that suit; it has no application in this criminal

case.

        Philip Carlson argues that the district court erred in ruling that the FDIC documents

not be used at trial. The court actually ruled that the state could not use the FDIC documents

in its case in chief; Philip Carlson and Virginia Carlson, on the other hand, were given an

additional week to review the FDIC documents for possible use in their defenses. In any

event, Philip Carlson fails to explain why the court’s ruling was erroneous. We therefore

do not give further consideration to this general assignment of error. See State v. Andersen,

871 N.W.2d 910, 915 (Minn. 2015) (“An assignment of error based on mere assertion and



                                              16
not supported by any argument or authorities in appellant’s brief is waived and will not be

considered on appeal unless prejudicial error is obvious on mere inspection.” (quotation

omitted)).

       Philip Carlson asserts that “alternative perpetrators committed the crime of theft by

swindle.” A district court may abuse its discretion by excluding evidence that an alternative

perpetrator committed the crime for which the defendant is being prosecuted. Davis, 864

N.W.2d at 180–81. Yet Philip Carlson does not claim that the district court excluded any

alternative-perpetrator evidence. Instead, Philip Carlson essentially raises a new defense

for our consideration, asserting that Roos, Leuer, and Fenning are guilty of theft by

swindle. This assertion is not cognizable on appeal. Cf. State v. Porte, 832 N.W.2d 303,

308–09 (Minn. App. 2013) (noting appellant’s assertion that it is more likely that controlled

substance belonged to alternative perpetrators, characterizing assertion as “essentially

ask[ing] this court to reweigh the evidence,” and declining to do so).

       Philip Carlson appears to make a public-policy argument against his conviction,

claiming that “if left to stand [the conviction] creates a fatal defect to civil law.” Philip

Carlson’s failure to identify reversible error cannot be overcome by public-policy

arguments. See State v. Christenson, 827 N.W.2d 436, 441 n.2 (Minn. App. 2012)

(“Because this court is limited in its function to correcting errors it cannot create public

policy.” (quotation omitted)), review denied (Minn. Feb. 19, 2013).

       Philip Carlson argues against restitution. Although the prosecutor initially argued

for restitution at the sentencing hearing, the state ultimately did not seek a restitution order,




                                               17
and the district court issued no restitution order. Here, Philip Carlson makes no allegation

of error for our review.

       Finally, Philip Carlson’s pro se reply brief raises several issues, none of which were

addressed in his counseled brief or in his lengthy principal pro se brief. “Failure to brief or

argue an issue on appeal results in waiver of that issue on appeal.” Ouk v. State, 847 N.W.2d

698, 701 n.7 (Minn. 2014), cert. denied, 135 S. Ct. 1429 (2015). “Issues not raised or

argued in appellant’s [principal] brief cannot be revived in a reply brief.” State v. Petersen,

799 N.W.2d 653, 660 (Minn. App. 2011) (citing State v. Yang, 774 N.W.2d 539, 558

(Minn. 2009)), review denied (Minn. Sept. 28, 2011). We decline to address the issues

raised in Philip Carlson’s pro se reply brief because Philip Carlson forfeited their appellate

consideration.

       Affirmed.




                                              18
