                           This opinion will be unpublished and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
                                      A14-0550

                                    State of Minnesota,
                                        Respondent,

                                             vs.

                                  Daniel Thomas Labarre,
                                        Appellant.

                                  Filed February 2, 2015
                                         Affirmed
                                    Rodenberg, Judge

                               Ramsey County District Court
                                 File No. 62-CR-13-6748

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, Bridget Kearns Sabo, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

         Considered and decided by Hooten, Presiding Judge; Rodenberg, Judge; and Kirk,

Judge.

                          UNPUBLISHED OPINION

RODENBERG, Judge

         Appellant Daniel Labarre challenges his conviction for fleeing a police officer by

motor vehicle, arguing that the district court erred in admitting hearsay and Spreigl
evidence and that the state committed prosecutorial misconduct. Appellant also argues

that the cumulative effect of these errors requires reversal. We affirm.

                                          FACTS

       In the early afternoon of September 3, 2013, four officers in the St. Paul Police

Department’s Focusing Our Resources on Community Enforcement (FORCE) unit were

patrolling in an unmarked sports-utility vehicle (SUV) on Edgerton Avenue in east

St. Paul. Two of the St. Paul police officers were the only witnesses at trial. Officer

Bilek testified that he was driving the SUV and that, as he drove southbound on Edgerton

Avenue, the officer in the front passenger seat, Officer Dunaski, “observed the defendant

. . . I believe he said he was on a motorcycle.” Officer Bilek also testified that he “saw a

white male on a motorcycle, on the sidewalk -- like the sidewalk going up to the house.”

Officer Bilek later testified that the man he saw was appellant. The officers were aware

that there was an outstanding warrant for appellant’s arrest.

       Officer Bilek turned the SUV around to approach appellant.            Officer Bilek

testified that, after he turned around and while traveling northbound on Edgerton, the

man on the motorcycle began to drive away, also northbound on Edgerton. Officer Bilek

then activated his emergency lights and siren.        The motorcycle did not stop.        It

accelerated. Officer Bilek testified that his vehicle was “within maybe 30 yards” of the

motorcycle but the motorcycle then “really, really accelerated past us [at an] estimated

speed to be about 50 to 60 miles an hour as we tried to close distance.” Officer Bilek

testified that he followed the motorcycle northbound on Edgerton until ending the chase

near Larpenteur Avenue because Officer Bilek was concerned about public safety, he was


                                             2
confident that the man was appellant, and the man had entered Maplewood, another

jurisdiction.

       St. Paul police arrested appellant later that night. Appellant was charged with one

felony count of fleeing a police officer in a motor vehicle in violation of Minn. Stat.

§ 609.487, subd. 3 (2012). At trial, the identity of the man on the motorcycle was the

principal issue in dispute.

       Officer Dunaski’s trial testimony largely corroborated Officer Bilek’s testimony.

He testified that his job at the time involved regularly reviewing active arrest warrant lists

to “see who the current wanted people are before I go out on my shift.” Officer Dunaski

testified that he saw appellant’s name and photo on the active-warrant list on the morning

of September 3, that he knew who appellant was and what he looked like, and that he had

interacted with appellant “at least 10, 12 times.”

       At trial, appellant objected on hearsay grounds when Officer Bilek testified that

Officer Dunaski “looked at the residence and observed the defendant . . . I believe he

said he was on a motorcycle.” After this objection, the prosecutor said, “So let me stop

you there” and asked Officer Bilek, “So he observed somebody in the yard?” and

continued with questioning. The district court never ruled on the objection. During

Officer Dunaski’s examination, appellant did not object to similar testimony when

Officer Dunaski stated, “One of the guys in the car said, ‘That’s Danny LaBarre [sic],

Danny Boy on his motorcycle.’”

       Appellant also objected, without providing grounds for the objection, when

Officer Dunaski appeared to start providing the reason for the arrest warrant for


                                              3
appellant: “Q: . . . there was an active warrant for the arrest of Daniel LaBarre [sic]?

A: Yes, he was -- he was wanted previously for a previous –[.]” The district court

responded to the objection, stating, “Just answer the question, please,” and the witness

responded, “Yes.” The district court then stated, “It was a yes or no question.” Appellant

also objected when the prosecutor asked Officer Dunaski how many times he had

interacted with appellant. The district court overruled the objection.

       Appellant also objected on relevance grounds to Officer Bilek’s testimony that he

and the other officers were “check[ing] on . . . one of our addresses we know to be a

problem property.” The district court overruled the objection.

       During summation, the prosecutor made four statements that appellant claims

amount to prosecutorial misconduct. The first such statement is:

              We have testimony from two officers that told you what
              happened that day. The officers who knew the defendant,
              who saw him that day and who saw him flee.

                    We have the word of the officers telling you what
              happened that day. And if you believe them, then we have
              enough evidence to convict the defendant.

The next three statements, made at the beginning of the prosecutor’s rebuttal argument,
are:

              All these cops were shady characters, weren’t they? They
              have a lot to think of up here and a lot to go after the
              defendant with apparently. The conspiracy theory that
              they’re out to get him.

                     Does it sound like they were out to get him or did they
              sound like a couple of cops who were just out doing their job?
              They were just telling you what they saw because there
              weren’t embellishments. They didn’t have every single little
              detail about it because we don’t have squad video telling us


                                             4
              what exactly happened. What we have is officers telling you
              what happened.

                     In contrary to the defense’s assertions, I would say that
              their testimony was clear, it was consistent and it was
              compelling about what happened that day.

(Emphasis added to identify the portions of which appellant complains).

       The jury found appellant guilty, and he was sentenced to serve 22 months in

prison. This appeal followed.

                                       DECISION

       Appellant argues that evidence of the arrest warrant for appellant and of his prior

contacts with the officers was improperly admitted Spreigl evidence. Appellant argues

that we should review for an abuse of discretion because he objected to these statements

at trial. See State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003) (stating that “[e]videntiary

rulings rest within the sound discretion of the [district] court” and that we will not

overturn “absent a clear abuse of discretion”). But because appellant did not identify

Minn. R. Evid. 404(b) as the basis of his objection, we review for plain error. State v.

Griller, 583 N.W.2d 736, 740 (Minn. 1998) (stating that unobjected-to errors are

reviewed under the plain-error test). Under a plain-error review, appellant must show an

“(1) error; (2) that is plain; and (3) the error must affect substantial rights.” Id.

       Appellant argues on appeal that evidence of appellant’s arrest warrant and of his

prior contacts with police officers was inadmissible as bad-acts evidence under rule

404(b). This argument was not raised in the district court. Respondent maintains that the




                                               5
evidence was necessary to prove an element of the charged crime: that the police were

acting in the lawful discharge of their official duty.

       To prove that appellant violated Minn. Stat. § 609.487, subd. 3, the state was

required prove that (1) appellant fled from police officers by motor vehicle; (2) the police

officers were acting in the lawful discharge of an official duty; (3) appellant knew or

reasonably should have known that he was fleeing from police officers; and (4) the

incident took place on September 3, 2013 in Ramsey County. Evidence is relevant when

it has “any tendency to make the existence of any fact that is of consequence to the

determination of the action more probable or less probable than it would be without the

evidence.” Minn. R. Evid. 401. “Evidence of another crime, wrong, or act is not

admissible to prove the character of a person in order to show action in conformity

therewith.” Minn. R. Evid. 404(b). Evidence of prior crimes or bad acts, or Spreigl

evidence, may “be admissible for other purposes, such as proof of motive, opportunity,

intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Id.

       Appellant objected to Officer Dunaski’s response to the question of whether there

was an active warrant for appellant, but did not identify the basis for the objection. The

objection was made after Officer Dunaski had answered that there was a warrant and

appears to have begun to answer another question that had not been asked concerning

why the warrant had been issued. The district court directed the witness to answer the

question that had been asked, and the witness stated, “Yes.” Apparently satisfied that the

witness had followed its instruction, the district court stated, “It was a yes or no

question.” Appellant made no further record to clarify his objection to more broadly


                                              6
include the testimony that a warrant existed at all. Appellant argues on appeal that the

district court “failed to engage in any analysis” regarding admissibility under rule 404(b).

But appellant did not object under rule 404(b).

       Evidence of the existence of a warrant for appellant’s arrest was relevant and

material to prove an element of the crime. See Minn. R. Evid. 401. Evidence that the

warrant existed tended to prove that the police were acting in lawful discharge of an

official duty in pursuing appellant on the motorcycle. The officers’ belief that appellant

had an active arrest warrant tended to prove that the officers were acting within their

lawful duty to enforce warrants.1 The district court properly confined Officer Dunaski’s

testimony to the subject of whether there was an arrest warrant for appellant. We

therefore conclude that it was not plain error for the district court to decline to sua sponte

exclude the evidence under rule 404(b).

       We also conclude that the district court did not abuse its discretion in admitting

evidence of the existence of appellant’s active arrest warrant on hearsay grounds, as the

evidence was not offered to prove the matter asserted. Rather, it was offered to prove

that the officers were lawfully discharging their official duty to enforce warrants by

acting on information that appellant had an arrest warrant. Moreover, appellant made no

further record concerning the hearsay objection.2 See State v. Manthey, 711 N.W.2d 498,



1
  Officer Dunaski testified that he spent “the last nine years doing high risk warrants,”
and Officer Bilek affirmatively responded to the prosecutor’s question, “Is it your job to
enforce warrants?”
2
  During discussion after the state rested, outside the presence of the jury, the district
court asked if there was “anything else we need to put on the record at this point,” and

                                              7
504 (Minn. 2006) (stating that hearsay objections require particular attention to “the

creation of a record of the trial court’s decision-making process in either admitting or

excluding a given statement”). “It is well to bear in mind that on appeal error is never

presumed” and that “the burden of showing error rests upon the one who relies upon it.”

Loth v. Loth, 227 Minn. 387, 392, 35 N.W.2d 542, 546 (1949) (quotation omitted).

      Appellant also argues that the evidence that Officer Dunaski had interacted with

him “10, 12 times” was duplicative and inadmissible.        Appellant relies on State v.

Strommen, 648 N.W.2d 681 (Minn. 2002), to support his contention. In Strommen, the

defendant was charged with attempted robbery of a gas station, and his defense theory

was that he did not intend to rob the gas station and that when asked to leave, he did so,

abandoning any effort to commit the robbery. 648 N.W.2d at 682, 684. The supreme

court stated: “From a review of the record, Strommen’s identification does not appear to

have been the intended purpose of the questions eliciting the officer’s testimony

regarding ‘prior contacts and incidents’” and that “the officer had been asked and had

answered questions identifying Strommen as matching the general description” as the

suspect. Id. at 687-88. The supreme court then stated: “[T]o the extent that the questions

were intended to establish that the person the officer arrested was indeed Strommen, the

questions were unnecessary.”      Id. at 688.     The supreme court also stated that

“Strommen’s identity does not appear to have been an issue in this case” and that the real




appellant’s counsel answered, “I know I had some objections and the Court sustained
some and overruled others, but I have no specific record to make in that regard.”

                                            8
purpose of the offending questions was to suggest that “Strommen was a person of bad

character who had frequent contacts with the police.” Id.

       Here, however, the identity of the driver of the motorcycle was a disputed element

at trial. The number of prior contacts these officers had with appellant is material and

relevant to the question of whether the officers knew appellant sufficiently to identify

him as the man on the motorcycle. Evidence of the number of times the officers had

interacted with appellant tends to prove that the officers were able to recognize appellant

from their vehicle. Admission of the prior-contact testimony was not plainly erroneous.

       Appellant also argues that “prior interactions” connotes “run-ins” with the officers

and that the jury would have presumed the contacts were evidence of prior bad acts. But

there was no evidence or argument concerning appellant’s role in these interactions.

Neither we nor the jury know from this record whether any or all of appellant’s contacts

with these specific officers were for crimes or bad acts. We conclude that the district

court did not err in admitting evidence that the officers had prior interactions with

appellant.

       Appellant also argues that the district court erred in admitting hearsay evidence

concerning what various officers in the SUV said. And, while appellant objected to

Officer Bilek’s testimony that Officer Dunaski “observed [appellant] in the -- in the

yard,” he did not object to Officer Dunaski’s testimony that another officer stated:

“That’s Danny LaBarre [sic], Danny Boy on his motorcycle.” On appeal, appellant does

not challenge the admission of the first statement from Officer Bilek on hearsay grounds.

Because there was no objection to Officer Dunaski’s testimony regarding the


                                            9
identification of appellant, we review the admission of that testimony for plain error.

Griller, 583 N.W.2d at 740.

       Hearsay evidence is “a statement, other than one made by the declarant while

testifying at the trial or hearing, offered in evidence to prove the truth of the matter

asserted.” Minn. R. Evid. 801(c). Hearsay is generally inadmissible unless an exception

exists in rule or statute. Minn. R. Evid. 802. Respondent argues that the officers’

testimony concerning the warrant was not offered for the truth of the matter asserted but

rather as evidence that the police officers believed that the person on the motorcycle was

appellant, who had a warrant for his arrest. Appellant argues that, because the district

court did not provide a limiting instruction, the statement was offered as a statement

supporting the truth of the matter asserted. We see no plain error where, as here, the

evidence in question was not objected to, and had an evident non-hearsay purpose.

       Appellant also argues that the district court plainly erred in allowing Officer

Dunaski to testify that another officer in the car stated: “That’s Danny LaBarre [sic],

Danny Boy on his motorcycle.” As with the testimony concerning the warrant, this

evidence had a non-hearsay purpose: proving that police believed the person on the

motorcycle to be appellant, for whom an arrest warrant had been issued, and tending to

prove that the officers were therefore lawfully discharging their duties in pursuing him.

We conclude that the district court did not plainly err in declining to strike the testimony

sua sponte. See State v. Vick, 632 N.W.2d 676, 687 (Minn. 2001) (stating that “failure to

sua sponte strike or instruct is not [ordinarily] reversible error”). Even if we did conclude

that the statement was offered to prove that appellant was the man on the motorcycle, the


                                             10
state may have argued one or more exceptions to the rule against hearsay. It did not have

the chance to do so as appellant’s trial counsel never made the objection. We cannot

conclude that error, if any existed, was plain. See Strommen, 648 N.W.2d at 688 (stating

that an error must be clear or obvious to be plain).

       Appellant next argues that the prosecutor committed misconduct during

summation. Appellant concedes that he did not object to these statements at trial. We

therefore review under a modified plain-error standard. State v. Ramey, 721 N.W.2d 294,

302 (Minn. 2006). This two-tiered test requires appellant to first establish that the

prosecutor committed plain error, one that contravenes caselaw, a rule, or a standard of

conduct.   Id.   If appellant makes this showing, the burden shifts to the state to

demonstrate that its misconduct did not affect appellant’s substantial rights. Id. When

misconduct is demonstrated, we consider whether an appellant’s substantial rights have

been affected. See State v. Porter, 526 N.W.2d 359, 365 (Minn. 1995); see also State v.

Reed, 737 N.W.2d 572, 583 (Minn. 2007) (“The ‘affects substantial rights’ language of

the third plain error factor is the same language used to define harmless error.”).

       It is prosecutorial misconduct for the prosecutor to “bolster the credibility of the

state’s witnesses with the prosecutor’s own opinion.” State v. Hobbs, 713 N.W.2d 884,

888 (Minn. App. 2006), vacated in part on other grounds (Minn. Dec. 12, 2006). But

“[m]erely arguing that the witness has no interest in the case . . . is not interjecting the

prosecutor’s opinion into the credibility analysis.” Id. at 889. When reviewing for

prosecutorial misconduct in the summation, we consider the argument as a whole. State

v. Powers, 654 N.W.2d 667, 678 (Minn. 2003).


                                             11
       Appellant argues that the prosecutor improperly endorsed the witnesses’

credibility. Respondent maintains that the statements are not prosecutorial misconduct

when examined in the context of the full closing argument. The statements include the

prosecutor’s statements that the officers “told you what happened that day” and that they

“were just telling you what they saw” and “telling you what happened that day.” The

prosecutor also stated that, “I would say that their testimony was clear, it was consistent

and it was compelling about what happened that day.”

       Appellant cites Hobbs to support his argument that statements from the prosecutor

that the officers “were just telling you what they saw” and “telling you what happened

that day” constitutes prosecutorial misconduct. In Hobbs, the prosecutor stated that one

of the officers “told you what she saw, what happened” and we concluded that this was

improper. 713 N.W.2d at 889; see also State v. Ture, 353 N.W.2d 502, 516 (Minn. 1984)

(concluding that “portions of the final argument of the prosecutor endorsing the

credibility of the state's witnesses and injecting personal opinion as to defendant’s

credibility were clearly improper”).

       While the prosecutors’ statements in Hobbs and Ture were deemed to be

misconduct, context is important and unique in each case. See Powers, 654 N.W.2d at

679. Upon review, in context of the closing argument and rebuttal, the prosecutor’s

comments here appear to be explanatory and arguing inferences from the testimony at

trial. Specifically, the statements that the officers “told you what happened that day” and

that they “were just telling you what they saw” fairly characterize the officers’ testimony

as arising from routine, professional observations. The officers’ testimony was the only


                                            12
evidence available, as there was no squad video or physical evidence. The prosecutor

began her closing argument by stating, “The evidence in this case is not complicated, it’s

not extensive. We have testimony from two officers that told you what happened that

day. The officers who knew the defendant, who saw him that day and who saw him flee.

That’s the evidence . . . .” In this context, the statements were not an endorsement of

credibility.

       At the beginning of the prosecutor’s rebuttal, she responded to appellant’s attacks

on the officers’ credibility by saying:

               Does it sound like they were out to get him or did they sound
               like a couple of cops who were just out doing their job? They
               were just telling you what they saw because there weren’t
               embellishments. They didn’t have every single little detail
               about it because we don’t have squad video telling us what
               exactly happened. What we have is officers telling you what
               happened.

(Emphasis added.) Appellant argues that these comments were improper and “made up a

significant portion of her closing argument,” citing State v. Davis, 735 N.W.2d 674, 682

(Minn. 2007) (stating that misconduct was not pervasive when it covered less than one

page of a 64-page argument). But as discussed above, the statements appear to be a

legitimate effort to focus the jury’s attention on the evidence in the record, and arguing

that the evidence so understood was sufficient to find appellant guilty. The statements at

issue, when combined, amount to approximately one page of the 11-page summation.

       Even if we were to conclude that the statements were plain error, we conclude that

appellant’s substantial rights were not affected in any event. The evidence in this case

was very strong. Officer Dunaski testified that he had been “face to face” with appellant


                                            13
previously and that he was “one hundred percent” certain that the man on the motorcycle

was appellant.    This was strong evidence establishing appellant’s identity.     Officer

Dunaski’s testimony corroborated much of Officer Bilek’s testimony about the

subsequent chase. We cannot conclude on this record that appellant’s substantial rights

were affected by the prosecutor’s statements in summation. The result would have been

the same with or without the challenged statements.

      Appellant also argues that the alleged errors, when taken together, demonstrate

that he did not receive a fair trial. When “the number of errors and the seriousness of

some of them” render this court “unable to determine whether the jury based its verdict

on the admissible evidence and the reasonable inferences derived therefrom,” we may

determine that the defendant was deprived of a procedurally fair trial. State v. Mayhorn,

720 N.W.2d 776, 792 (Minn. 2006). To find cumulative error, we must find multiple

errors that, when combined, are more prejudicial than each of the errors separately. State

v. Penkaty, 708 N.W.2d 185, 200 (Minn. 2006).

      As discussed above, we do not conclude that the district court erred. However,

even if there were errors, appellant has failed to demonstrate that his substantial rights

were affected or that he was deprived of a procedurally fair trial. The district court

properly instructed the jury, and we presume that the jury followed these instructions.

We therefore conclude that any cumulative error did not prejudice appellant.

      Affirmed.




                                           14
