                          This opinion will be unpublished and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
                                     A15-0003

                                   State of Minnesota,
                                      Respondent,

                                           vs.

                                  Cartrell Ismail Smith,
                                       Appellant.

                                 Filed January 25, 2016
                                        Affirmed
                                     Larkin, Judge

                             Hennepin County District Court
                               File No. 27-CR-13-32807


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

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

Julie Loftus Nelson, Nelson Criminal Defense & Appeals, PLLC, Minneapolis, Minnesota
(for appellant)


         Considered and decided by Bjorkman, Presiding Judge; Ross, Judge; and Larkin,

Judge.
                         UNPUBLISHED OPINION

LARKIN, Judge

       Appellant challenges his convictions of aiding and abetting attempted second-

degree murder, and aiding and abetting second-degree assault, arguing that the district

court erred by allowing the state to introduce its theory regarding the motive for the crimes,

that the prosecutor committed misconduct, and that the district court erred by admitting a

photo lineup into evidence. We affirm.

                                          FACTS

       Respondent State of Minnesota charged appellant Cartrell Ismail Smith with aiding

and abetting attempted second-degree murder, aiding and abetting second-degree assault,

and attempted first-degree aggravated robbery. The complaint alleged that in July 2013,

Smith, Lorenzo Washington, and O.W., chased D.P. and shot him in the buttocks. The

district court joined Smith’s and Washington’s cases for trial, and the cases were tried to a

jury. The jury acquitted Smith and Washington of the aggravated-robbery charges but

deadlocked on the other charges. Smith and Washington were retried on the charges of

aiding and abetting attempted second-degree murder, and aiding and abetting second-

degree assault.

       At the second trial, D.P. testified that he was familiar with Smith and Washington

“[t]hrough the streets” and knew them by their nicknames. D.P. knew Smith as “Pumo”

and Washington as “Zomo.” D.P. testified that one of Smith and Washington’s associates,

J.O., shot D.P. in the stomach in 2010 or 2011, when D.P. was 15 years old. J.O.’s

nickname was “Skitz.” D.P. never told the police that J.O. shot him because he did not


                                              2
want to be called a snitch. J.O. was later shot and killed. D.P. testified that he knew Smith

was acquainted with J.O. because Smith had told him so, and because he had seen Smith

and J.O. together. D.P. had also seen Smith and Washington together. In addition, D.P.

testified that he was in a treatment facility with Washington in 2012. D.P. testified that he

did not get along with Washington because Washington called J.O. his brother and told

people at the treatment facility that J.O. shot D.P.’s “balls off.”

       D.P. testified that on July 11, 2013, he was biking to a CVS store when “a whole

bunch of kids riding around in circles on . . . bikes” confronted him and that he “knew it

was trouble.” D.P. testified that “a couple more kids came out [of] the alley” and one of

them stopped him and asked what was in his pockets. Someone in the group said the name

“Skitz.” D.P. recognized Smith, Washington, and O.W. in the group. D.P. fled on his

bicycle, and the group chased him. D.P. headed for a friend’s house. When he was a block

away, he heard gunshots and a “ting” sound on his bike. D.P. got off his bike and ran

toward his friend’s house. He knocked on the door and on a window, but his friend did not

answer. D.P. started to leave but encountered Smith in the backyard; Smith was holding a

gun. D.P. saw Washington in the front of the house. D.P. testified that he “[s]aw their

faces” and “[t]ried to run.” D.P. heard Washington say, “there he goes, there he goes,” and

Smith fired four shots. The last shot struck D.P.’s buttocks.

       During closing argument, the state described D.P.’s “beef” with J.O. as a motive for

the shooting. The prosecutor stated: “The beef with [J.O.] did not die when [J.O.] died.

Like many rivalries, the issues between [J.O.] and [D.P.] didn’t simply end, they were

passed on to Mr. Washington and then passed on to Mr. Smith.” The prosecutor argued


                                               3
that it was clear that the people who chased and attacked D.P. were aligned with J.O.

because one of them yelled the name “Skitz” during the attack. The jury found Smith and

Washington guilty on all counts, and the district court sentenced Smith to serve 131 months

in prison. Smith appeals.

                                     DECISION

                                             I.

       Smith contends that the district court “committed reversible error when it allowed

the state to introduce its theory of an alleged motive for the shooting when the state lacked

a good faith basis for believing that its theory would be supported by witness testimony.”

Smith argues that the state “lacked good faith for introducing its theory that the shooting

in this case was somehow linked to [J.O.’s] shooting of [D.P.] in 2010.” Smith relies on

State v. Strommen, which provides that “the state cannot be permitted to deprive a

defendant of a fair trial by means of insinuations and innuendoes which plant in the minds

of the jury a prejudicial belief in the existence of evidence which is otherwise

inadmissible.” 648 N.W.2d 681, 688 (Minn. 2002) (quotation omitted). Smith also relies

on State v. Nissalke, which provides that it is “‘improper for a prosecutor to refer to

evidence in an opening statement without a good-faith basis for believing the evidence is

admissible.’” 801 N.W.2d 82, 104 (Minn. 2011) (quoting State v. Smallwood, 594 N.W.2d

144, 150 (Minn. 1999)).

       In his opening statement, the prosecutor told the jury that J.O. shot D.P. in 2010,

that J.O. was later shot and killed, that Smith and Washington associated with J.O., and

that someone in the group that chased and shot D.P. yelled the name “Skitz,” which was


                                             4
J.O.’s nickname. The record establishes that the state had a good-faith basis to believe that

such evidence was admissible because the district court ruled that it was admissible before

trial. Smith had moved to “exclude all references to [J.O.] during trial.” The district court

ruled that “[D.P.’s] personal beef with [J.O.] and the fact that somehow it was inherited by

either of these defendants is admissible for motive if there’s anybody to testify to it.” The

district court further ruled:

               [J.O.’s] beef with [D.P.] can come in. The whole thing about
               the argument between one of these codefendants and [D.P.] at
               [the treatment center] about who got what shot off can come
               in. The . . . argument and any evidence from which an
               inference can be drawn that this shooting was in retaliation for
               [J.O.] can come in.

       Moreover, the state provided evidence at trial to back up its opening statement. D.P.

testified that J.O. shot him in 2010 or 2011, that someone later shot and killed J.O., that

Smith and Washington knew J.O., that Washington called J.O. his brother and mocked

D.P. for getting shot by J.O., and that one member of the group that confronted D.P.

announced the name “Skitz,” which was J.O.’s nickname. That evidence supported the

state’s theory that Smith was motivated to aid D.P.’s shooting based on the conflict

between D.P. and J.O.

       Smith also contends that the prosecutor committed misconduct when “he

deliberately used a leading question to elicit testimony about the alleged motive for the

shooting.” After D.P. testified that someone in the group said the name “Skitz” and he

believed he was in trouble, the prosecutor asked, “Did you believe that this may have

related to your past history with [J.O.] and Mr. Washington?” D.P. replied, “Yes.” The



                                              5
district court sustained an objection to the question as leading and ordered that the answer

be stricken. The district court later instructed the jury to “disregard all evidence I have

ordered stricken.”

       Smith relies on State v. White, which explains that:

              It is unprofessional conduct for either the prosecutor or defense
              counsel knowingly and for the purpose of bringing
              inadmissible matter to the attention of the judge or jury to offer
              inadmissible evidence, ask legally objectionable questions, or
              make other impermissible comments or arguments in the
              presence of the judge or jury. Similarly, it is unprofessional
              conduct to ask a question which implies a factual predicate
              which the examiner cannot support by evidence.

295 Minn. 217, 223, 203 N.W.2d 852, 857 (1973) (emphasis added) (citations omitted).

Smith also relies on State v. Henderson, which provides that “[i]t is improper for a

prosecutor to ask questions that are calculated to elicit or insinuate an inadmissible and

highly prejudicial answer.” 620 N.W.2d 688, 702 (Minn. 2001).               When reviewing

objected-to alleged prosecutorial misconduct, an appellate court utilizes a harmless-error

test. State v. Carridine, 812 N.W.2d 130, 146 (Minn. 2012).

       Lay-witness testimony “in the form of opinion or inferences is limited to those

opinions or inferences which are (a) rationally based on the perception of the witness and

(b) helpful to a clear understanding of the witness’ testimony or the determination of a fact

in issue.” Minn. R. Evid. 701. “A lay witness’s opinion or inference testimony may help

the jury by illustrating the witness’s perception in a way that the mere recitation of

objective observations cannot.” State v. Pak, 787 N.W.2d 623, 629 (Minn. App. 2010);

see also Abar v. Ramsey Motor Serv., Inc., 195 Minn. 597, 599, 263 N.W. 917, 918 (1935)



                                              6
(“Words may fail to convey to the jury the actual situation as the witness saw it, but by

expressing his opinion or conclusion as to the cause of the situation the jury may be able

to comprehend what he saw.”). “Motive is not an element of most crimes, but the state is

usually entitled to prove motive because motive explains the reason for an act and can be

important to a required state of mind.” State v. Ness, 707 N.W.2d 676, 687 (Minn. 2006)

(quotation omitted).

       D.P.’s opinion regarding why he was in danger was admissible to establish motive.

Moreover, the factual predicate implied by the prosecutor’s leading question was supported

by D.P.’s testimony about his history with J.O. and Washington. In sum, the prosecutor

did not engage in unprofessional conduct under White or Henderson.

                                              II.

       Smith next contends that his convictions must be reversed “because . . . multiple

instances of prosecutorial misconduct denied him . . . his right to a fair trial.”

                      The prosecutor is an officer of the court charged with
              the affirmative obligation to achieve justice and fair
              adjudication, not merely convictions.               Generally, a
              prosecutor’s acts may constitute misconduct if they have the
              effect of materially undermining the fairness of a trial. Also,
              misconduct results from violations of clear or established
              standards of conduct, e.g., rules, laws, orders by a district court,
              or clear commands in this state’s case law. Further, [the
              supreme court has] held that attempting to elicit or actually
              eliciting clearly inadmissible evidence may constitute
              misconduct.

State v. Fields, 730 N.W.2d 777, 782 (Minn. 2007) (citations omitted).

       Smith once again assigns error to the prosecutor’s use of leading questions. He

argues that the prosecutor committed misconduct “throughout the trial when he


                                               7
continuously posed leading questions that were designed to elicit key testimony in support

of the state’s theory of the case.”

                       Leading questions should not be used on the direct
               examination of a witness except as may be necessary to
               develop the witness testimony. Ordinarily leading questions
               should be permitted on cross-examination. When a party calls
               a hostile witness, an adverse party, or a witness identified with
               an adverse party, interrogation may be by leading questions.

Minn. R. Evid. 611(c).

       As support for his prosecutorial-misconduct claim, Smith identifies 15 leading

questions in the nearly 600-page trial transcript. The defense objected to each question, and

the district court sustained the objections. But Smith does not establish that the prosecutor’s

use of leading questions violated clear or established standards of conduct, that the

prosecutor attempted to elicit clearly inadmissible evidence, or that the prosecutor’s

questions had the effect of materially undermining the fairness of the trial. See Fields, 730

N.W.2d at 782. In sum, Smith has not established that the prosecutor’s use of leading

questions constitutes misconduct.

       Smith also argues that the prosecutor committed misconduct during his opening and

closing statements “by repeatedly instructing the jury that its duty was ‘to find the truth.’”

The prosecutor told the jury, during his opening statement, closing argument, and rebuttal,

that it should “listen to the testimony, weigh it with reason and common sense, and find

the truth in the case”; that the jurors were “the finders of fact, and [their] goal is to find the

truth in the evidence”; and that the jury’s “job is to find the truth.” Smith did not object to

any of these comments when they were made.



                                                8
       A defendant who fails to object to alleged prosecutorial misconduct ordinarily forfeits

the right to appellate review of the purported misconduct. State v. Ture, 353 N.W.2d 502,

516 (Minn. 1984). This court has discretion to review unobjected-to prosecutorial misconduct

if plain error is shown. Minn. R. Crim. P. 31.02; State v. Ramey, 721 N.W.2d 294, 297-99

(Minn. 2006). A plain-error claim based on prosecutorial misconduct has three requirements:

(1) the prosecutor’s unobjected-to act must constitute error, (2) the error must be plain, and

(3) the error must affect the defendant’s substantial rights. Ramey, 721 N.W.2d at 302. The

burden rests with the defendant to demonstrate error that is plain. Id. “An error is plain if it

was clear or obvious,” which is usually shown “if the error contravenes case law, a rule, or a

standard of conduct.” Id. (quotation omitted). If the defendant satisfies his burden, the burden

shifts to the state to demonstrate that the error did not affect the defendant’s substantial rights.

Id. “The third prong, requiring that the error affect substantial rights, is satisfied if the error

was prejudicial and affected the outcome of the case.” State v. Griller, 583 N.W.2d 736, 741

(Minn. 1998). “If these three prongs are satisfied, [appellate courts] then assess[] whether the

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

Ramey, 721 N.W.2d at 302.

       In State v. Bailey, the supreme court considered a challenge to a closing argument

in which the prosecutor urged the jurors, “as the truth seekers, search for the truth in the

evidence; don’t search for doubt in the evidence, because you are the truth seekers. Search

for the truth in the evidence, but give the defendant the benefit of any reasonable doubt.”

677 N.W.2d 380, 403 (Minn. 2004). The Bailey court concluded that the prosecutor’s

statements did not amount to prosecutorial misconduct because although the statements


                                                 9
were “somewhat confusing, [they] were not a clear misstatement of the burden of proof

and, in such event, would be superseded by the court’s jury instructions on burden of

proof.” Id. Because caselaw has allowed similar comments during a prosecutor’s closing

argument, Smith has not demonstrated error that is plain, and he therefore is not entitled to

relief under the plain-error standard of review.

                                             III.

       Lastly, Smith contends that the district court erred “when it permitted the state to

introduce evidence of [his] photo lineup when it was unnecessary to prove identity and

unfairly prejudicial.” Prior to trial, Smith moved the district court, under Minn. R. Evid.

403, to exclude photo lineups that included “mug shots depicting Mr. Smith and

Mr. Washington in jail attire within six-packs of other young men in jail attire.” The

district court denied the motion, stating:

              The photo lineups were litigated prior to trial the last time. I
              don’t anticipate the evidence would be any different. And
              those were admissible at the last trial and will be at this trial.
              Identification is not really an issue because the defendants were
              known to the victim in this case, so there’s not much prejudice
              there.

       “Although relevant, evidence may be excluded if its probative value is substantially

outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the

jury. . . .” Minn. R. Evid. 403. Unfair prejudice has been defined as “an undue tendency

to suggest decision on an improper basis, commonly, though not necessarily, an emotional

one.” State v. Bott, 310 Minn. 331, 338 n.3, 246 N.W.2d 48, 53 n.3 (1976). “[T]he main

reason for generally excluding police photographs is that the jurors might infer from them



                                             10
that the defendant has been involved in prior criminal conduct.” State v. McAdoo, 330

N.W.2d 104, 107 (Minn. 1983). “[I]n determining whether to admit such photographs, [the

district court] must decide whether their probative value is substantially outweighed by the

potential of the photographs for unfair prejudice.” Id. “Evidentiary rulings rest within the

sound discretion of the [district] court and will not be reversed absent a clear abuse of

discretion.” State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003).

       At trial, a photo lineup containing Smith’s photo was admitted during the testimony

of a police investigator. The investigator testified that he showed D.P. the lineup because

D.P. had only provided nicknames to identify his assailants and the investigator wanted

D.P. “to confirm that these were the people that we were talking about.” Smith argues that

the photo-lineup evidence was unnecessary and lacked probative value because D.P. knew

Smith and identified him prior to viewing the lineup. Smith further argues that “showing

the jury a mug shot of [him] in jail garb, grouped with other young, black males in jail

garb, unduly prejudiced the jury into concluding, without any other evidence, that [he] was

a criminal.”

       For the reasons that follow, we hold that the probative value of the photo-lineup

evidence in this case is not substantially outweighed by the potential for unfair prejudice.

D.P. initially identified Smith by a nickname. The photo lineup verified that D.P. had

actually identified Smith. Moreover, D.P. had previously recanted his identification of

Smith as the shooter at O.W.’s trial, testifying that Smith did not shoot him. The photo-

lineup identification enhanced D.P.’s credibility and tended to corroborate his testimony at

Smith’s trial that Smith had shot him. See State v. Axford, 417 N.W.2d 88, 93 (Minn. 1987)


                                            11
(“Absent some rule of exclusion or some tendency of the evidence to produce an

overbalancing amount of unfair prejudice, corroborating evidence is admissible.”). Under

the circumstances, the district court did not abuse its discretion by admitting the photo-

lineup evidence.

      Affirmed.




                                           12
