                        This opinion will be unpublished and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
                                   A14-0707

                                 State of Minnesota,
                                     Respondent,

                                         vs.

                               Bradley James Richards,
                                     Appellant.

                                 Filed June 8, 2015
                                     Affirmed
                                 Halbrooks, Judge


                            Freeborn County District Court
                                File No. 24-CR-13-788

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

Craig S. Nelson, Freeborn County Attorney, David J. Walker, Assistant County Attorney,
Albert Lea, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, St. Paul, Minnesota; and

Liz Kramer, Adine Momoh, Special Assistant Public Defenders, Minneapolis, Minnesota
(for appellant)

      Considered and decided by Halbrooks, Presiding Judge; Hooten, Judge; and

Klaphake, Judge.





 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
                         UNPUBLISHED OPINION

HALBROOKS, Judge

       On appeal from his conviction of fleeing a peace officer in a motor vehicle, 1

appellant argues that the district court improperly excluded a written statement as

inadmissible hearsay and that the cumulative effect of the district court’s errors and the

state’s prosecutorial misconduct deprived him of a fair trial. We affirm.

                                          FACTS

       On May 3, 2013, a lieutenant with the Albert Lea police department observed a

vehicle that he believed was associated with drug-related activity outside a residence also

connected to narcotics sales. The lieutenant followed the vehicle in an unmarked police

car, and the vehicle began to speed. A second officer used a radar gun to obtain a speed

result of 41 in a 30 mile-per-hour zone. The lieutenant activated the police car’s lights

and siren. The vehicle accelerated to 45 or 50 miles per hour and did not stop in response

to the lights and siren. The lieutenant continued to pursue the vehicle as it made a series

of turns until it eventually came to a stop on a dead-end street.

       The passenger quickly exited the vehicle and fled on foot. The driver then moved

to the passenger seat. The lieutenant arrested the driver, later identified as appellant

Bradley James Richards. The other officer pursued and eventually apprehended the

passenger, identified as C.J. The officer went back the next day to search the area where

he apprehended C.J. and found $641 in cash, drug paraphernalia, and pills that contained


1
 Richards is not challenging his speeding conviction that arose out of the same incident
and jury trial.

                                              2
hydrocodone.    Photographs were taken of the vehicle and the area where C.J. was

apprehended. The state charged Richards with one count of fleeing a peace officer in a

motor vehicle, in violation of Minn. Stat. § 609.487, subd. 3 (2012), and one count of

speeding, in violation of Minn. Stat. § 169.14, subd. 2(a) (2012).

       Before trial, Richards moved the district court to exclude the evidence found

where C.J. was apprehended and the evidence of Richards’s prior felony convictions.

The district court admitted the evidence found near the location of C.J.’s arrest, finding

that it had “some limited relevance” and was “neutral” evidence. The district court also

admitted Richards’s prior convictions for impeachment purposes but ruled that they

would only be referred to as unspecified “felony convictions.” Richards also moved the

district court to not allow the lieutenant to testify that he had previously observed the

same vehicle engaged in narcotics-related activities at a different location. The district

court allowed the lieutenant’s testimony “to give his full explanation of what raised his

suspicions regarding this vehicle.”

       At trial, the prosecutor called the lieutenant and the officer to testify.        The

lieutenant testified to his pursuit and arrest of Richards and stated that Richards told him

that C.J. thought that there was an active warrant for his arrest, did not want Richards to

stop the car, and “was threatening [Richards] with the metal baton.” The officer testified

to his pursuit and apprehension of C.J. and stated that he found the money, drugs, and

paraphernalia at the scene the following morning.

       Richards called C.J. to testify, but after speaking with an attorney, C.J. asserted his

Fifth Amendment right and declined to testify. Richards then offered a written statement


                                              3
by C.J. as a statement against interest under Minn. R. Evid. 804(b)(3). The district court

did not admit C.J.’s written statement, finding that Richards failed to provide independent

corroborating evidence to guarantee the statement’s trustworthiness.

       Richards testified that C.J. “started freaking out” and told him to keep driving

when the lieutenant activated the lights and siren. Richards stated that C.J. “tried to grab

the wheel and put his foot over the thing to try to press on the gas.” Richards testified

that he felt threatened and was afraid of what C.J. would do if he pulled over.

       During closing argument, Richards’s counsel characterized the police’s role as

“looking for reasonable suspicion . . . [and] probable cause,” and stated, “These are

much, much, much lower standards” than proof beyond a reasonable doubt. On rebuttal,

the prosecutor responded, “Of course, [the police] don’t want to arrest an innocent

person. . . . There is no reason for you to think that [the lieutenant] was somehow

unprofessional or improper in the way he approached this case. He wanted to arrest a

guilty person.” Richards moved for a curative instruction. The district court denied the

motion, finding that the prosecutor did not vouch for the officers and that any confusion

regarding the state’s burden of proof would be covered by the jury instruction on

reasonable doubt.

       The jury returned guilty verdicts on both counts. Before sentencing, Richards

filed a post-verdict motion for a new trial. Richards argued that the district court should

grant a new trial because the district court (1) improperly excluded C.J.’s written

statement, (2) should have given a curative instruction after the prosecutor committed

misconduct, (3) improperly allowed the lieutenant to testify about previously observing


                                             4
the vehicle in an area known for drug activity, and (4) should not have admitted the

evidence found where C.J. was apprehended. The district court denied the motion for a

new trial and sentenced Richards to 17 months in prison, staying imposition of that

sentence for three years. This appeal follows.

                                     DECISION

                                             I.

       Richards argues that the district court should have admitted C.J.’s written

statement as a statement against interest under Minn. R. Evid. 804(b)(3). “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).

On review, Richards bears the burden of establishing that the district court abused its

discretion and that he suffered prejudice. Id.

       Richards called C.J. as a witness, and C.J. asserted his Fifth Amendment right to

not testify. Richards then offered a written statement by C.J. as a statement against

interest. C.J.’s handwritten statement reads: “I [C.J.] told brad richards not to stop [and]

put my foot on the gas and when he got the car stopped I jumped out of car and took off

running again stopped him from pulling over right away.” The district court found that

the statement was not sufficiently corroborated to guarantee its trustworthiness and

excluded it.

       Hearsay is an out-of-court statement “offered in evidence to prove the truth of the

matter asserted.” Minn. R. Evid. 801(c). Generally, hearsay is not admissible unless it

meets a recognized exception under the rules of evidence. Minn. R. Evid. 802. One


                                             5
exception to the hearsay rule is when the declarant is unavailable as a witness and the

statement is “so far contrary to the declarant’s pecuniary or proprietary interest, or so far

tended to subject the declarant to civil or criminal liability, . . . that a reasonable person in

the declarant’s position would not have made the statement unless believing it to be true.”

Minn. R. Evid. 804(b)(3). “A statement tending to expose the declarant to criminal

liability and offered to exculpate the accused” is only admissible under this exception if

“corroborating circumstances clearly indicate the trustworthiness of the statement.” Id.;

see also Dobbins v. State, 845 N.W.2d 148, 152 (Minn. 2013) (discussing Minn. R. Evid.

804(b)(3)), cert. denied, 134 S. Ct. 1913 (2014).

       When determining whether a statement against interest is sufficiently

corroborated, we consider six factors:

              (1) whether other evidence corroborates the facts in the
              hearsay statement; (2) the extent to which the hearsay
              statement is consistent with the declarant’s prior testimony
              and other statements; (3) the relationship between the
              declarant and other witnesses and parties, including the
              defendant; (4) whether the declarant has reason to fabricate
              the statement; (5) the overall credibility and character of the
              declarant; and (6) the timing of the statement.

Ferguson v. State, 826 N.W.2d 808, 813 (Minn. 2013).

       Richards argues that his own testimony corroborated the statement. The district

court ruled that Richards’s own testimony, without more, could not corroborate the

statement because “the independent corroborating evidence has to be something

independent of [Richards].” In an effort to provide independent corroborating evidence,

Richards’s brother, N.R., testified outside the presence of the jury. N.R. stated that C.J.



                                               6
told him that he prevented Richards from stopping the vehicle and asked N.R. how to

“put a statement in.” N.R. stated that C.J. was not under duress when he was talking to

him. But N.R. admitted that he was not present when C.J. wrote the statement and that he

did not know when or where C.J. wrote the statement. The district court ruled that

Richards failed to provide the type of corroborating evidence necessary to demonstrate

that the statement was trustworthy because both Richards and his brother had strong self-

interests in corroborating C.J.’s statement.

        “The purpose of the corroborating evidence requirement is to protect against the

possibility that a statement will be fabricated to exculpate the accused.” Riley v. State,

819 N.W.2d 162, 169 (Minn. 2012). Therefore, the district court properly required more

corroboration than the accused’s own testimony to establish that the statement was

trustworthy. Similarly, N.R. had a self-interest in exculpating his brother. In addition,

N.R. was not present in the vehicle during the incident or when C.J. wrote the statement.

Therefore, the district court properly ruled that N.R.’s testimony did not provide the

necessary independent corroborating evidence.

        The district court also found that the photographs of the vehicle did not

corroborate C.J.’s statement that he “put [his] foot on the gas” because the photographs

show:

              [a] McDonald’s pop glass sitting in that center console clearly
              undisturbed. I just can’t fathom how a person could have
              climbed over that center console, stepped on that gas pedal, as
              described, without somehow disturbing that. That would
              corroborate it for me if that pop glass was crushed or if that
              straw was bent sideways or something.



                                               7
         Richards argues that the district court abused its discretion by weighing the

evidence.      But the district court must find that there is independent evidence

corroborating a statement before it can admit the statement under rule 804(b)(3). Thus,

the district court did not improperly weigh the evidence; instead, it “properly assumed the

duty of determining whether there had been a sufficient showing of trustworthiness to

admit the statement into evidence.” See State v. Jackson, 655 N.W.2d 828, 834-35

(Minn. App. 2003) (stating that while the district court cannot assess the credibility of

witnesses in making a 804(b)(3) determination, it must look at the evidence to determine

whether the evidence corroborates the statement), review denied (Minn. Apr. 15, 2003).

         We conclude that the district court did not abuse its discretion by excluding C.J.’s

statement under the statement-against-interest exception to the hearsay rule because

Richards has not shown that the statement is “trustworthy by independent corroborating

evidence that bespeaks reliability.” See Miles v. State, 840 N.W.2d 195, 203 (Minn.

2013).

         Richards argues for the first time on appeal that C.J.’s statement is admissible

under the residual hearsay exception articulated in Minn. R. Evid. 807 and that the

district court’s exclusion of C.J.’s statement violated his due-process right to present a

meaningful defense. Because Richards did not raise either of these arguments to the

district court, he has waived them on appeal, and we will not address them. See Roby v.

State, 547 N.W.2d 354, 357 (Minn. 1996).




                                              8
                                            II.

       Richards argues that the cumulative effect of the district court’s other evidentiary

errors and the prosecutor’s misconduct deprived him of a fair trial. Richards contends

that the district court abused its discretion by (1) admitting evidence of drugs, money, and

drug paraphernalia found where C.J. was apprehended; (2) allowing testimony that the

lieutenant had previously observed the vehicle in narcotics-related activities;

(3) admitting his prior felony convictions for impeachment; and (4) failing to give a

curative instruction after the prosecutor committed misconduct.

Admission of Drugs, Money, and Paraphernalia

       Richards argues that the evidence found near the location of C.J.’s arrest should

have been excluded because it was irrelevant and highly prejudicial. We review a district

court’s evidentiary rulings for an abuse of discretion, and Richards has the burden of

proving both that the district court abused its discretion and that prejudice resulted.

Amos, 658 N.W.2d at 203.

       “‘Relevant evidence’ means evidence having 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. Relevant evidence

is generally admissible, but it “may be excluded if its probative value is substantially

outweighed by the danger of unfair prejudice.”        Minn. R. Evid. 402, 403. “When

balancing the probative value against the potential prejudice, unfair prejudice is not

merely damaging evidence, even severely damaging evidence; rather, unfair prejudice is

evidence that persuades by illegitimate means, giving one party an unfair advantage.”


                                             9
State v. Swinger, 800 N.W.2d 833, 839 (Minn. App. 2011) (quotation omitted), review

denied (Minn. Sept. 28, 2011).

       Here, the district court found that the evidence had some relevance:

              It does show that there were some activities that [maybe]
              Defendant might have been afraid to be associated with and
              further it does, I think, show a complete picture of the
              incident and the . . . completion of [law enforcement’s]
              investigation. It’s clearly tied . . . directly to the event itself,
              at least, based on all of the circumstantial evidence.

The district court also found that the evidence was “neutral” because it supported both the

state’s burden of proving that Richards intended to flee and Richards’s defense theory

that C.J. forced him to flee.

       The record supports the district court’s conclusion. The lieutenant testified on

direct examination that Richards stayed in the vehicle until he was arrested and that

Richards could not have placed the drugs, money, and paraphernalia in the field where

they were found. During cross-examination of the officer, Richards’s counsel asked, “So

if anybody put those items out in that field, it couldn’t have been Mr. Richards, right?”

And the officer answered, “Correct.” Because the officers’ testimony clearly indicates

that C.J.—not Richards—placed the evidence in the field, we conclude that the probative

value of the evidence was not substantially outweighed by the danger of unfair prejudice

and the district court did not abuse its discretion by admitting the evidence.

Testimony that Lieutenant Previously Observed Vehicle in Narcotics-Related Area

       Richards argues that the district court should not have allowed the lieutenant to

testify that he had seen a “known drug user” get in and out of the vehicle in a Walmart



                                              10
parking lot a week and a half prior to Richards’s arrest because the probative value of the

testimony was substantially outweighed by the danger of unfair prejudice. We review the

district court’s ruling for an abuse of discretion. See id. at 838.

       The prosecutor argued that the testimony was relevant to prove an essential

element of Richards’s fleeing charge: that the lieutenant was acting in lawful discharge of

an official duty when he followed Richards’s vehicle. “[His] interest in the vehicle is that

he related it to an incident that he saw in the Walmart parking lot about a week and a half

prior when he saw a person who he knew to be a methamphetamine user sitting in a

parked car in the Walmart parking lot.” The prosecutor further argued, “I don’t think it’s

realistic to . . . assume that the jury will just give the officer the benefit of the doubt and

assuming that he was doing what he was supposed to do. I think I have to prove that.”

The district court allowed the testimony, reasoning that the state was required to prove

that the officer was lawfully performing his duties and that “it’s certainly fair for [the

lieutenant] to explain his heighten[ed] suspicions based on prior—ah, innocent and

innocuous acts that though might connect this vehicle to drug activity.”

       The lieutenant testified that he had previously observed the vehicle in the Walmart

parking lot and saw a “known meth user” get into the vehicle. But he also testified that

he did not observe any criminal behavior at that time and did not see who was driving the

vehicle on that occasion.     Because the lieutenant’s testimony does not directly link

Richards to a drug crime, his testimony supports the district court’s conclusion that the

probative value of the evidence was not substantially outweighed by the danger of unfair




                                              11
prejudice. We conclude that the district court did not abuse its discretion by allowing the

lieutenant to testify to his previous observations concerning the same vehicle.

Prior Felony Convictions

       Richards argues that the district court erred by admitting evidence of his prior

felony convictions for impeachment purposes. We review a district court’s ruling on the

impeachment of a witness by prior conviction for a clear abuse of discretion. State v.

Ihnot, 575 N.W.2d 581, 584 (Minn. 1998). Whether the probative value of the prior

convictions outweighs their prejudicial effect is a matter within the discretion of the

district court. State v. Graham, 371 N.W.2d 204, 208 (Minn. 1985). The district court

may permit evidence of a witness’s past conviction for impeachment purposes if the

crime was punishable by imprisonment in excess of one year and the district court

determines that the probative value of admitting the evidence outweighs its prejudicial

effect. Minn. R. Evid. 609(a)(1). When making this determination, the district court

considers five factors:

              (1) the impeachment value of the prior crime, (2) the date of
              the conviction and the defendant’s subsequent history, (3) the
              similarity of the past crime with the charged crime (the
              greater the similarity, the greater the reason for not permitting
              use of the prior crime to impeach), (4) the importance of
              defendant’s testimony, and (5) the centrality of the credibility
              issue.

State v. Jones, 271 N.W.2d 534, 537-38 (Minn. 1978).

       After the prosecutor and Richards’s counsel each thoroughly analyzed the Jones

factors during their arguments for and against admission of the prior convictions, the

district court ruled that it would admit the prior felony convictions for impeachment


                                             12
purposes “but they can only be referred to as felony convictions. We will not use the

labels.” The district court reasoned:

                         Frankly, there is so much . . . drug behavior type
                evidence swirling about this and this is not a drug crime that
                . . . if we allow too much of that in, we are creating prejudice
                and we are inviting the jury to speculate beyond what—ah,
                the Defendant is charged with. So I’m just—I’m going to
                leave out reference to controlled substance crimes. I do find,
                however, that it’s fair for the jury to know the whole person.

       Richards argues that the district court erred by failing to make a record of the

Jones-factors analysis. The Minnesota Supreme Court has ruled “that a district court

should demonstrate on the record that it has considered and weighed the Jones factors.”

State v. Swanson, 707 N.W.2d 645, 655 (Minn. 2006). “[F]ailure to place the analysis on

the record makes review of the district court’s exercise of discretion more speculative and

difficult. Put another way, absent an analysis on the record of the Jones factors, an

appellate court does not know the reasons for the district court’s decision.” Id. But when

a district court errs “by failing to make a record of the Jones factor analysis,” appellate

courts review those factors as applied to the matter to determine whether the error was

harmless. Id.

       Impeachment value of the prior crime

       Richards’s prior convictions do not directly relate to his truthfulness because they

do not involve crimes of dishonesty. But a prior felony conviction has impeachment

value by helping the jury see the “whole person” of the defendant and better evaluate his

or her truthfulness. State v. Gassler, 505 N.W.2d 62, 66-67 (Minn. 1993). Here, the

district court stated that it was admitting the prior convictions to allow the jury to see


                                              13
Richards’s “whole person.” Under Gassler, this is a proper basis for determining that the

prior convictions have impeachment value.

       Date of conviction and Richards’s subsequent history

       Convictions occurring within ten years of trial are presumptively not stale. Minn.

R. Evid. 609(b); Gassler, 505 N.W.2d at 67. Here, all of Richards’s convictions occurred

within ten years of his trial. “Because [the] convictions show a pattern of lawlessness

and because the convictions were all less than 10 years old, the dates of the convictions

do not weigh against admission of the prior convictions.” See Swanson, 707 N.W.2d at

655.

       Similarity of the past crime to the crime charged

       “The more similar the alleged offense and the crime underlying a past conviction,

the more likely it is that the conviction is more prejudicial than probative.” Id. Richards

concedes that the prior convictions were not similar to the charged offense. In addition,

the district court only allowed the jury to hear that Richards had prior felony convictions;

the jury was not permitted to hear what type of offenses Richards had previously

committed. These circumstances limit the prejudicial effect of the prior convictions and

weigh in favor of admission. See State v. Hill, 801 N.W.2d 646, 652-53 (Minn. 2011)

(holding that a party may impeach a witness with an unspecified felony conviction).

       Importance of Richards’s testimony and centrality of credibility

       If credibility is a central issue in the case, the fourth and fifth Jones factors weigh

in favor of admission of the prior convictions. Swanson, 707 N.W.2d at 655; Ihnot, 575

N.W.2d at 587. Here, the jury had to determine whether to believe Richards’s testimony.


                                             14
Because credibility was a central issue, the fourth and fifth Jones factors weigh in favor

of admission.

       We conclude that the district court’s failure to make a thorough record of its

Jones-factors analysis was harmless because the Jones factors weigh in favor of

admitting the prior unspecified felony convictions.

Failure to Give Curative Instruction After Prosecutorial Misconduct

       Richards contends that the district court erred by failing to give a curative

instruction in response to the prosecutor’s misconduct during closing arguments.

Richards argues that the prosecutor improperly created confusion regarding the

reasonable-doubt standard and impermissibly vouched for the police investigation.

Richards requested a curative instruction explaining reasonable suspicion and probable

cause and how those standards differ from proof beyond a reasonable doubt. The district

court found that the prosecutor did not vouch for the police investigation and stated that it

would be giving an instruction on reasonable doubt, so “that will cover” any confusion

caused by the prosecutor’s statement regarding the standard of proof.

       Prosecutorial misconduct

       When determining whether prosecutorial misconduct occurred during a closing

argument, we “consider the closing argument as a whole rather than focus[ing] on

particular phrases or remarks that may be taken out of context or given undue

prominence.” State v. Jackson, 714 N.W.2d 681, 694 (Minn. 2006) (quotations omitted).

The prosecutor “has the right to present to the jury all legitimate arguments on the

evidence, to analyze and explain the evidence, and to present all proper inferences to be


                                             15
drawn therefrom.”     State v. Williams, 586 N.W.2d 123, 127 (Minn. 1998).           The

prosecutor has “considerable latitude” in making a closing argument and need not make a

colorless argument. Id. Impermissible vouching occurs “when the government implies a

guarantee of a witness’s truthfulness, refers to facts outside the record, or expresses a

personal opinion as to a witness’s credibility.” State v. Lopez-Rios, 669 N.W.2d 603, 614

(Minn. 2003) (quotations omitted). But a prosecutor is permitted to argue that particular

witnesses are or are not credible. Id. “Misstatements of the burden of proof also

constitute prosecutorial misconduct.”   State v. Fields, 730 N.W.2d 777, 786 (Minn.

2007).

         Because Richards requested a curative instruction immediately after the

prosecutor’s rebuttal argument, we review for harmless error. Cf. State v. Morton, 701

N.W.2d 225, 234 (Minn. 2005) (applying plain-error review when a defendant fails to

request curative instructions). If the claim involves “unusually serious prosecutorial

misconduct, there must be certainty beyond a reasonable doubt that misconduct was

harmless.” State v. Yang, 774 N.W.2d 539, 559 (Minn. 2009). But if the claim involves

less serious prosecutorial misconduct, we review “to determine whether the misconduct

likely played a substantial part in influencing the jury to convict.” Id. Caselaw has not

consistently applied the “unusually serious” versus “less serious” analysis. See State v.

Wren, 738 N.W.2d 378, 390 n.9 (Minn. 2007) (discussing the inconsistent standards

applied in various cases). Because we conclude that any misconduct here is harmless

beyond a reasonable doubt, we need not determine whether the prosecutor engaged in




                                           16
unusually serious or less serious misconduct. See State v. Carridine, 812 N.W.2d 130,

146, 150 (Minn. 2012).

       Richards argues that the prosecutor vouched for his witnesses by asserting that the

police had already determined guilt beyond a reasonable doubt and that the officers

wanted to arrest a guilty person. The state argues that the prosecutor was correcting a

statement made in Richards’s closing argument.

       In closing argument, Richards’s counsel stated:

              [The lieutenant is] looking for reasonable suspicion. He’s
              looking for probable cause. These are much, much, much
              lower standards. . . . [T]hey are looking for what evidence is
              there that—that will support a charge. They aren’t looking
              for proof beyond a reasonable doubt at this point. . . .
              Officers cannot work that way. So they go on a much lower
              standard. They—they find a conclusion. They’ll get the
              evidence that matches the conclusion.

       On rebuttal, the prosecutor stated that Richards’s counsel’s criticism “that the

officer has a low standard; he doesn’t care what happened here; only the defendant wants

to tell us the truth” was unfounded.

                     Of course, [the police] wanted to know exactly what
              happened. Of course, they don’t want to arrest an innocent
              person. To say that somehow he had some weird lower
              standard, whatever that is supposed to mean, and that he just
              investigated to that point, or was interested in the facts to that
              point, and then somehow he drew a conclusion and then
              ignored everything that—that didn’t corroborate the
              conclusion—that does not apply to this case. There is no
              reason for you to think that [the lieutenant] was somehow
              unprofessional or improper in the way he approached this
              case.
                     He wanted to arrest a guilty person. He wanted to
              arrest a person that he saw committing a crime in his very
              presence. Why would any of us think that he was there just


                                             17
              pursuing someone . . . because he drew a conclusion right
              away, and then pursued that conclusion. It makes no sense.
              There is no reason to think that that happened in this case.

       Taken in the context of both attorneys’ closing arguments, the prosecutor was not

guaranteeing the officers’ truthfulness, referring to facts outside the record, or expressing

a personal opinion as to the officers’ credibility. See Lopez-Rios, 669 N.W.2d at 614.

Instead, the prosecutor was arguing that the officers were credible and rebutting

Richards’s counsel’s argument that the police “get the evidence that matches the

conclusion.” Therefore, the prosecutor did not commit misconduct by impermissibly

vouching for the officers.

       Richards also argues that the prosecutor confused the jury by stating that police do

not operate under a lower standard than proof beyond a reasonable doubt. But Richards

mischaracterizes the prosecutor’s statement. The prosecutor said that officers do not

want to arrest an innocent person and want to arrest a guilty person. This is different than

stating that the officers would only arrest someone who is guilty beyond a reasonable

doubt. And the prosecutor’s statement about “some weird lower standard” was to rebut

Richards’s argument that police officers draw a conclusion and ignore all evidence

contrary to that conclusion because they operate under a “much, much, much lower

standard.”

       In addition, the prosecutor, Richards’s counsel, and the district court repeatedly

explained to the jury that the state had the burden of proving each element beyond a

reasonable doubt. Therefore, even if the prosecutor’s statement created confusion, we

conclude that any error was harmless beyond a reasonable doubt because the clear and


                                             18
thorough instructions on the burden of proof would have eliminated any confusion caused

by the prosecutor’s statements.

      Curative instruction

      We will uphold a district court’s decision regarding jury instructions absent an

abuse of discretion. State v. Houston, 654 N.W.2d 727, 734 (Minn. App. 2003), review

denied (Minn. Mar. 26, 2003). Here, the district court determined that the prosecutor’s

statement did not amount to vouching and that it would “be giving the instruction of

what . . . reasonable doubt is, and I will be giving the instruction that arguments by

counsel are not evidence. And that will cover it.”

      The district court provided the following instructions, in part, to the jury:

             The defendant is presumed innocent of the charge made. This
             presumption remains with the defendant unless and until the
             defendant has been proven guilty beyond a reasonable doubt.
             That the defendant has been brought before the Court by the
             ordinary processes of the law and is on trial should not be
             considered by you as in any way suggesting guilt. The
             burden of proving guilt is on the state.

                    ....

                     Proof beyond a reasonable doubt is such proof as
             ordinary—ordinarily prudent men and women would act upon
             in their most important affairs. A reasonable doubt is a doubt
             based upon reason and common sense.

                    ....

                    . . . [T]he arguments or other remarks of an attorney
             are not evidence.

                    . . . If an attorney’s argument contains a statement of
             the law that differs from the law I give you, disregard the
             statement.


                                            19
       Because the district court’s instructions were thorough and clear, we conclude that

the district court did not abuse its discretion by declining to provide an additional curative

instruction.

Cumulative Error

       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 an appellant

was deprived of a procedurally fair trial. See 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). Because we conclude that the district court did not

commit any error—except for failing to provide a record of its Jones-factors analysis—

we conclude that Richards was not denied a fair trial.

       Affirmed.




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