                          This opinion will be unpublished and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
                                     A14-1275

                                   State of Minnesota,
                                      Respondent,

                                           vs.

                                James Michael Soderbeck,
                                       Appellant.

                                Filed December 28, 2015
                                       Affirmed
                                     Larkin, Judge

                              Ramsey County District Court
                                File No. 62-CR-13-8317


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

John J. Choi, Ramsey County Attorney, Kaarin Long, Assistant County Attorney, St. Paul,
Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Andrea Barts, Assistant Public
Defender, St. Paul, Minnesota (for appellant)


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

Judge.
                          UNPUBLISHED OPINION

LARKIN, Judge

       On remand from the Minnesota Supreme Court, appellant argues that the cumulative

effect of several trial errors denied him a fair trial and that his resulting convictions should

therefore be reversed. Because the errors are not egregious compared to those in the

relevant supreme court cases, and because the evidence supporting appellant’s convictions

is strong, we affirm.

                                       DECISION

       A jury found appellant James Michael Soderbeck guilty of possession of a firearm

by an ineligible person and two counts of terroristic threats based on evidence that

Soderbeck threatened to kill his mother, D.S., and his nephew, A.S., and that D.S. found a

shotgun in a closet in Soderbeck’s bedroom after the threats were made.

       Soderbeck appealed to this court, and we affirmed. State v. Soderbeck, No. A14-

1275, 2015 WL 3822892, at *1 (Minn. App. June 22, 2015), vacated in part and remanded,

No. A14-1275 (Minn. Sept. 15, 2015) (order). Although we determined that there were

several evidentiary errors at Soderbeck’s trial, we only considered the objected-to errors in

our cumulative-error analysis. Id. at *9-10. We held that the cumulative effect of those

errors did not warrant reversal. Id. at *10-11.

       The supreme court granted Soderbeck’s petition for further review and vacated the

portion of our opinion “addressing the cumulative effect of the district court’s objected-to

and unobjected-to errors,” and remanded to this court “solely for the purpose of re-

considering the cumulative effect of the district court’s objected-to and unobjected-to


                                               2
errors in light of State v. Bustos, 861 N.W.2d 655 (Minn. 2015), State v. Mayhorn, 720

N.W.2d 776 (Minn. 2006), and State v. Strommen, 648 N.W.2d 681 (Minn. 2002).” State

v. Soderbeck, No. A14-1275 (Minn. Sept. 15, 2015) (order). That precedent suggests that

all trial errors are considered when conducting a cumulative-error analysis, including

unobjected-to errors.      See Mayhorn, 720 N.W.2d at 792 (considering objected-to

evidentiary errors and unobjected-to prosecutorial misconduct in a cumulative-error

analysis).

       We previously concluded that there were three evidentiary errors at Soderbeck’s

trial: (1) the admission of testimony from the arresting officer regarding his concern for

his safety while he searched for Soderbeck; (2) the admission of evidence that Soderbeck

refused to voluntarily provide a sample of his DNA for analysis, and (3) the admission of

testimony from the interviewing officer that Soderbeck made threatening comments during

his in-custody interview. Soderbeck, 2015 WL 3822892, at *6-9. We did not decide

whether the district court erred by admitting evidence that the firearm in Soderbeck’s

bedroom was loaded because Soderbeck did “not explain how admission of [that]

testimony affected his substantial rights.” Id. at *6-7; see State v. Griller, 583 N.W.2d 736,

740 (Minn. 1998) (stating that an appellate court may review an issue not raised in the

district court if there was plain error affecting substantial rights and that under this standard,

we consider (1) whether there was an error, (2) whether such error was plain, and

(3) whether it affected the defendant’s substantial rights).          For the purpose of our

cumulative-error analysis on remand, we assume without deciding that admission of the

loaded-firearm evidence was error, bringing the total number of trial errors to four.


                                                3
       “An appellant is entitled to a new trial if . . . errors, when taken cumulatively, had

the effect of denying appellant a fair trial.” State v. Jackson, 714 N.W.2d 681, 698 (Minn.

2006) (quotation omitted)).     When determining whether cumulative error denied a

defendant a fair trial, “reviewing courts balance the egregiousness of the errors against the

weight of proof against the defendant.” State v. Swinger, 800 N.W.2d 833, 840-41 (Minn.

App. 2011), review denied (Minn. Sept. 28, 2011).

       Egregiousness of the Errors

       We consider the egregiousness of the errors in this case in light of the supreme

court’s decisions in Bustos, Mayhorn, and Strommen, consistent with the supreme court’s

remand instructions. See State v. Soderbeck, No. A14-1275 (Minn. Sept. 15, 2015) (order).

       In Bustos, the supreme court determined that the district court erred by precluding

defense counsel from arguing that the state failed to prove any alleged prior domestic-abuse

incident beyond a reasonable doubt and by providing a broader definition of “domestic

abuse” in its jury instruction than set forth in statute. 861 N.W.2d at 657, 663. In

determining whether the errors, taken cumulatively, affected Bustos’s substantial rights,

the supreme court reasoned that “[b]oth errors related to the jury’s determination of the

same element: whether Bustos engaged in a past pattern of domestic abuse” and that

because the “record does not contain overwhelming evidence of a pattern of domestic abuse

and Bustos contested the existence of a pattern of domestic abuse at trial,” it is reasonably

likely that the errors had a significant effect on the verdict. Id. at 663. The supreme court

said that “because of the interrelatedness and serious nature of the errors,” a new trial was

“necessary to ensure fundamental fairness.” Id. at 665. The supreme court emphasized


                                             4
that “[p]rohibiting counsel from arguing that the State has failed in its essential duty to

prove a defendant’s guilt beyond a reasonable doubt is no ordinary error.” Id. at 664

(emphasis added).

       The evidentiary errors in this case are not as egregious as the errors in Bustos. Here,

the district court did not prohibit defense counsel from arguing that the state failed to prove

the defendant’s guilt beyond a reasonable doubt. Moreover, there was no interrelated

instructional error at Soderbeck’s trial.

       In Mayhorn, the supreme court found numerous errors including (1) admission of

evidence regarding an irrelevant phone call, (2) admission of evidence regarding a prior

bad act, (3) the prosecutor’s comments regarding Mayhorn’s credibility, (4) the

prosecutor’s appeal to the passions of the jury, (5) the prosecutor’s comments regarding

Mayhorn’s failure to call a witness, (6) the prosecutor’s intentional misstatement of

evidence, (7) the prosecutor’s use of a “were they lying” question, (8) the prosecutor’s

reference to threats not in evidence, (9) the prosecutor’s alignment of herself with the jury,

(10) the prosecutor’s improper attack on Mayhorn’s character, (11) the prosecutor’s

comments regarding Mayhorn’s opportunity to tailor his testimony, and (12) the

prosecutor’s comments regarding the credibility of a witness. 720 N.W.2d at 779.

       The supreme court acknowledged that “[t]he state had a strong case against

Mayhorn,” but emphasized that “even the strongest evidence of guilt does not eliminate a

defendant’s right to a fair trial.” Id. at 791. The supreme court explained that because of

“the number of errors and the seriousness of some of them,” it was “unable to determine

whether the jury based its verdict on the admissible evidence and the reasonable inferences


                                              5
derived therefrom, or on the state’s pervasive misconduct and the consideration of evidence

that should have been excluded” and that “the cumulative effect of the prosecutorial

misconduct and evidentiary errors” therefore denied Mayhorn a fair trial. Id. at 792.

       Mayhorn is readily distinguishable from this case given the sheer number of errors

and the unprecedented prosecutorial misconduct in Mayhorn. See id. at 791-92 (describing

the prosecutorial misconduct as “pervasive” and “unprecedented”). The four evidentiary

errors in this case pale in comparison to the 12 errors in Mayhorn. Moreover, Soderbeck

does not assert that the prosecutor in this case engaged in misconduct.

       In Strommen, the supreme court identified three trial errors: (1) the admission of

evidence regarding Strommen’s prior interactions with police and prior misconduct,

including “testimony about [him] kicking in doors and killing someone”; (2) the district

court’s failure to instruct the jury regarding accomplice testimony; and (3) the prosecutor’s

misstatements regarding the state’s burden of proof and the law of abandonment. 648

N.W.2d at 682, 686-88. The supreme court concluded that the “erroneous admission of

testimony relating to Strommen’s other bad acts and interaction with the police”

substantially affected the verdict and that based on those errors, he did not receive a fair

trial. Id. at 688. After deciding that a new trial was necessary, the supreme court noted

that the district court erred by failing to instruct the jury regarding accomplice testimony

and that the prosecutor misstated the state’s burden of proof and the law of abandonment.

Id. at 689-90. The supreme court noted that these additional errors supported its conclusion

that the defendant was denied a fair trial. Id. at 690.




                                              6
       The errors in Strommen were more egregious than those in this case.              The

improperly admitted other-crimes evidence in Strommen included testimony that

Strommen had killed someone. Id. at 686-87. The improperly admitted evidence in this

case did not suggest that Soderbeck had previously committed a crime as serious as murder.

Moreover, the evidentiary errors in this case were not exacerbated by incomplete jury

instructions or misstatements of law by the prosecutor.

       In sum, the evidentiary errors in this case are not egregious compared to those in

Bustos, Mayhorn, and Strommen.

       Weight of the Proof

       As to the weight of the evidence against Soderbeck, the testimony of D.S. and A.S.

strongly supports the terroristic-threats convictions. D.S. testified that Soderbeck twice

told her that he wanted to kill her or murder her and that she was “in fear of [her] life and

[her] grandson’s life.” A.S. testified that Soderbeck told him, “I’m going to kill ya” and

then turned to D.S. and said, “I’m going to kill both of you.” A.S. also testified that

Soderbeck’s comments surprised him and “kind of got [him] scared.”

       Although the firearm possession count was proved with circumstantial evidence, the

circumstantial evidence was strong. D.S. testified that she found a shotgun in a closet in

Soderbeck’s bedroom—a room that he did not share with anyone else—and a forensic

scientist from the Minnesota Bureau of Criminal Apprehension testified that Soderbeck

could not be excluded as a contributor to DNA found on the shotgun’s grip and stock,

trigger and bolt action, and shotshell holder.

       Conclusion


                                                 7
       In conclusion, the four evidentiary errors in this case are not egregious compared to

the errors in Bustos, Mayhorn, and Strommen. Moreover, there is strong evidence of

Soderbeck’s guilt. We also consider the extent to which the prosecutor in this case

emphasized the erroneously admitted evidence in his closing argument. See Mayhorn, 720

N.W.2d at 785 (noting that “the state made numerous references to the erroneously-

admitted shoot-out evidence,” including “once during closing argument and once during

its rebuttal to [the defendant’s] closing argument”). Although the prosecutor argued that

Soderbeck’s refusal to voluntarily provide a DNA sample was “unusual,” the prosecutor

did not argue that Soderbeck’s refusal indicated guilt. And although the prosecutor referred

to the shotgun as “loaded” and to Soderbeck’s threatening statement during his in-custody

interview, the overwhelming majority of the prosecutor’s closing argument explained why

the properly admitted evidence proved Soderbeck’s guilt beyond a reasonable doubt.

       We recognize that the evidentiary errors were somewhat prejudicial.             But “a

defendant is entitled to a fair trial, not a perfect trial.” Danforth v. State, 761 N.W.2d 493,

499 (Minn. 2009). Reversal based on the cumulative effect of trial errors normally occurs

in cases involving trial errors more serious than the evidentiary errors here. See State v.

Peterson, 530 N.W.2d 843, 848 (Minn. App. 1995) (concluding that the cumulative effect

of the following errors required reversal: district court instructed jury to continue

deliberating until it reached a unanimous verdict; appellant’s confrontation rights were

violated; and prosecutor engaged in misconduct during closing argument, which turned

Spreigl evidence into improper substantive evidence). On balance, we hold that the




                                              8
cumulative impact of the four evidentiary errors in this case did not result in an unfair trial

warranting reversal. We therefore affirm.

       Affirmed.




                                              9
