                        This opinion will be unpublished and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
                                   A15-0391

                                 State of Minnesota,
                                    Respondent,

                                         vs.

                    Michael Marshall Johnson, a/k/a Michael Tate,
                                     Appellant.

                                Filed March 7, 2016
                                      Affirmed
                                 Rodenberg, Judge

                           Hennepin County District Court
                             File No. 27-CR-13-35834

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

Michael O. Freeman, Hennepin County Attorney, Kelly O’Neill Moller, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Jennifer Workman Jesness,
Assistant Public Defender, St. Paul, Minnesota (for appellant)

      Considered and decided by Larkin, Presiding Judge; Rodenberg, Judge; and

Hooten, Judge.

                       UNPUBLISHED OPINION

RODENBERG, Judge

      On appeal from his conviction of being a prohibited person in possession of a

firearm, appellant Michael Marshall Johnson, n/k/a Michael Tate, challenges the
sufficiency of the evidence and argues that the prosecutor committed misconduct. We

affirm.

                                          FACTS

          In the early morning hours of October 28, 2013, gunshots were reported in North

Minneapolis. Within two to three minutes, Minneapolis Police Officers Jeff Sworski and

Will Gregory arrived at the scene and saw appellant limping across the street. Appellant

disobeyed the officers’ commands to stop and show his hands, instead continuing toward

a garbage can on the street corner. When appellant reached the garbage can, he dropped

a gun into it. Officer Sworski then knocked appellant to the ground, and the officers

physically restrained him.

          As the officers were restraining appellant, he said he had been shot and that

somebody had robbed him. Appellant told the officers that this occurred down the street.

An ambulance took appellant to the hospital, where a loaded .45-caliber handgun

magazine was recovered from appellant’s jacket. At the scene of appellant’s arrest,

police recovered a .45-caliber black pistol from the garbage can.

          Sergeant Stephen McCarty did follow-up investigation, interviewing appellant at

the hospital after reading him his Miranda rights. The interview was recorded and later

played in its entirety for the jury. Appellant told Sergeant McCarty that, while he was on

his way to his cousin’s ex-girlfriend’s house from a gas station, two men approached him

on the sidewalk and told him to “run [his] pockets,” meaning to empty them and turn

over anything of value. Appellant told Sergeant McCarty that he responded: “[I]s you

practicing[?] [C]ause they empty . . . [R]ob me, I ain’t got nothing.” The man closest to


                                             2
appellant then aimed a gun at appellant. According to appellant, he began trying to

wrestle the gun away from the first man. During that struggle, the second man came up

behind appellant and shot him in the leg. Appellant fell to the ground with the first man’s

gun. Appellant told Sergeant McCarty that he was then “shot . . . two more times.”

Appellant said that, at that point, he used the gun he wrestled from the first man to shoot

in the direction of the two men. The men ran away, and appellant began walking toward

his “cousin’s ex-girlfriend[’s] house,” taking the gun with him. Sergeant McCarty asked

appellant to describe the men, but appellant said he was unable to see the faces of the two

men, who wore hooded sweatshirts with the hoods up. As a result, appellant was able to

say little more than that one man was “probably [a] little shorter than [appellant],” and

weighed around 220 pounds.

       Sergeant McCarty followed up on appellant’s statements about the robbery, and

learned of a possible robbery at the same location, at around the same time that night.

Sergeant McCarty created a photo-identification lineup that included the two suspects

from that other possible robbery.     Appellant was unable to identify anyone in the

photographs. Sergeant McCarty also collected DNA samples from the two suspects in

the other possible robbery and of appellant to test against DNA collected on the gun

appellant had dropped into the garbage can. The results indicated that neither suspect’s

DNA sample matched the DNA on the gun, but that appellant’s DNA could not be

excluded as contributing to the mixture of DNA on the gun.

       Appellant was charged with one count of being a prohibited person in possession

of a firearm, in violation of Minn. Stat. § 624.713, subd. 1(2) (2012).          Appellant


                                            3
stipulated that he was ineligible to possess a firearm. Officer Sworski, Officer Gregory,

and appellant all testified at the jury trial that appellant possessed the gun and tossed it

into the garbage can. Appellant asserted the affirmative defense of necessity. The jury

was instructed accordingly.

         At trial, appellant’s necessity defense relied exclusively on his testimony. His trial

testimony was similar to what he told Sergeant McCarty in the hospital interview, with a

few variations and additions. For example, there were differences concerning when

appellant began shooting back at the men after he wrestled the gun away. Appellant was

also inconsistent in recounting the order of the injuries he received. Appellant also never

told Sergeant McCarty that the gun did not work the first time he tried to shoot it or that

he reloaded the gun at the end of the attempted robbery, as he claimed at trial. During

closing argument, the state emphasized these and other inconsistencies between

appellant’s various recitations of what happened.

         The prosecutor also said during closing argument that “to accept this defense of

necessity, you must buy the whole story hook, line, and sinker. You got to buy the whole

thing.    If you don’t buy part of it, [appellant] hasn’t met his burden and he’s not

credible.”    The prosecutor also noted that “[t]here is no independent evidence that

corroborates [appellant’s] rather fanciful tale,” that appellant’s statements were

inconsistent concerning where he was living at the time of the incident, and that appellant

did not identify the suspects in the photo-identification lineup because “if he confirms the

identities of the suspects, there are people that might come and tell a different story about

what happened that night.”


                                               4
      The jury found appellant guilty, and the district court sentenced appellant to 60

months in prison. This appeal followed.

                                    DECISION

I.    Sufficiency of the evidence

      Appellant argues that the evidence is insufficient to support his conviction of

being a prohibited person in possession of a firearm because his possession of the gun

was a necessity. In reviewing the sufficiency of the evidence, we “review the evidence to

determine whether the facts in the record and the legitimate inferences drawn from them

would permit the jury to reasonably conclude that the defendant was guilty beyond a

reasonable doubt of the offense of which he was convicted.” State v. Al-Naseer, 788

N.W.2d 469, 473 (Minn. 2010) (quotation omitted). We assume “the jury believed the

state’s witnesses and disbelieved any evidence to the contrary.” State v. Moore, 438

N.W.2d 101, 108 (Minn. 1989). Inconsistencies in testimony go to witness credibility,

which is an issue for the fact-finder, not the reviewing court. State v. Pendleton, 706

N.W.2d 500, 512 (Minn. 2005).

      Appellant was convicted under Minn. Stat. § 624.713, subd. 1(2), which prohibits

certain people from possessing firearms, and appellant stipulated to being ineligible to

possess a firearm. Officer Sworski, Officer Gregory, and appellant all testified that

appellant possessed the gun on October 28, 2013.         Appellant’s sufficiency-of-the-

evidence argument therefore only concerns his necessity defense.




                                           5
       The necessity defense “applies only in emergency situations where the peril is

instant, overwhelming, and leaves no alternative but the conduct in question.” State v.

Johnson, 289 Minn. 196, 199, 183 N.W.2d 541, 543 (1971).

              To successfully assert the defense, a criminal defendant must
              show that the harm that would have resulted from obeying the
              law would have significantly exceeded the harm actually
              caused by breaking the law, there was no legal alternative to
              breaking the law, the defendant was in danger of imminent
              physical harm, and there was a direct causal connection
              between breaking the law and preventing the harm.

Axelberg v. Comm’r of Pub. Safety, 831 N.W.2d 682, 685 (Minn. App. 2013), aff’d, 848

N.W.2d 206 (Minn. 2014).

       Here, appellant’s version of wrestling the gun away from one of his would-be

robbers would, if believed, support a conclusion that appellant had “no legal alternative

to breaking the law,” “the harm to be prevented [was] imminent,” and “a direct, causal

connection [existed] between breaking the law and preventing the harm.”            See id.

(defining the elements of the necessity defense). But whether the necessity defense

applies depends on the credibility of appellant’s testimony. That determination is for the

jury, and not for a reviewing court. Pendleton, 706 N.W.2d at 512. The jury was

instructed on the necessity defense, and appellant does not challenge those instructions on

appeal. The jury found appellant guilty of being a prohibited person in possession of a

firearm. To reach that verdict, the jury necessarily disbelieved appellant’s testimony, and

found it more likely than not to be untrue.




                                              6
       Our thorough review of the record reveals nothing that would warrant overturning

the jury’s credibility determinations. The evidence is sufficient to support appellant’s

conviction.

II.    Prosecutorial misconduct

       Appellant argues that the prosecutor committed misconduct during summation.

“[W]e reverse only if the misconduct, when considered in light of the whole trial,

impaired the [appellant’s] right to a fair trial.” State v. Swanson, 707 N.W.2d 645, 658

(Minn. 2006). Where, as here, a defendant fails to object at trial to claimed prosecutorial

error or misconduct, we review under a modified plain-error standard. State v. Ramey,

721 N.W.2d 294, 302 (Minn. 2006). This two-tiered test first requires appellant to

establish that the prosecution committed error that is plain in that the prosecutor’s

conduct contravenes caselaw, a rule, or a standard of conduct. Id. If appellant makes this

showing, the burden shifts to the state to demonstrate that the error did not affect

appellant’s substantial rights. Id. “Plain error is considered prejudicial if there is a

reasonable likelihood that the error had a significant effect on the jury’s verdict.” State v.

Young, 710 N.W.2d 272, 280 (Minn. 2006) (quotations omitted). Even where error

occurs, we will reverse only when an appellant was denied a fair trial. State v. Porter,

526 N.W.2d 359, 365 (Minn. 1995).

       We review closing arguments in their entirety when determining whether

prosecutorial misconduct occurred. State v. Vue, 797 N.W.2d 5, 15 (Minn. 2011); see

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

this court should consider “the closing argument as a whole rather than focus on


                                              7
particular phrases or remarks that may be taken out of context or given undue

prominence”). A prosecutor is allowed “considerable latitude” in closing and is not

required to make a “colorless” argument. State v. Smith, 541 N.W.2d 584, 589 (Minn.

1996). However, “[m]isstatements of the burden of proof are highly improper and would,

if demonstrated, constitute prosecutorial misconduct.” State v. Hunt, 615 N.W.2d 294,

302 (Minn. 2000).

       Appellant challenges four portions of the prosecutor’s closing argument. We

review each of those portions in turn, applying the modified plain-error standard.

       A. Independent corroborating evidence

       Appellant challenges the prosecutor’s statement that “there is no independent

evidence that corroborates [appellant’s] rather fanciful tale.” Appellant argues that this

statement was error because it implied that appellant has the burden of producing

evidence to prove his innocence.

       Here, appellant’s entire defense at trial amounted to his claim that he possessed the

gun out of necessity. Appellant had the burden of proving the elements of necessity by a

preponderance of the evidence. In that context, the prosecutor’s statement was part of the

state’s legitimate, broader effort to argue that appellant’s affirmative defense lacked

merit. See State v. MacLennan, 702 N.W.2d 219, 236 (Minn. 2005) (“As part of the

state’s right to vigorously argue its case, it may specifically argue that there is no merit to

the particular defense. . . .”). Specifically, because appellant’s hospital interview and

testimony were the only pieces of evidence supporting appellant’s version of events,

because other evidence was inconsistent with appellant’s testimony, and because


                                              8
appellant had the burden of proof concerning the necessity defense, the prosecutor’s

commentary concerning the lack of independent corroborating evidence concerning the

defense of necessity was proper. The comment was not error, much less plain error.

       B. Statement concerning identification of possible robbery suspects

       Appellant argues that the prosecutor improperly attacked appellant’s character

with his statement: “[I]f he confirms the identities of the suspects, there are people that

might come and tell a different story about what happened that night.” Appellant asserts

that this comment was designed to imply that appellant was a liar and to inflame the

jury’s passions.

       A prosecutor may not make arguments that are not supported by the evidence or

that are designed to inflame the jury’s passions or prejudices against the defendant. State

v. Rucker, 752 N.W.2d 538, 551 (Minn. App. 2008), review denied (Minn. Sept. 23,

2008). Prosecutors may present “all legitimate arguments on the evidence, to analyze

and explain the evidence, and to present all proper inferences to be drawn therefrom,”

Smith, 541 N.W.2d at 589, but it is “unprofessional conduct for the prosecutor

intentionally to misstate the evidence or mislead the jury as to the inferences it may

draw.” State v. Bobo, 770 N.W.2d 129, 142 (Minn. 2009) (quotations omitted).

       Appellant frames the prosecutor’s statement as commentary on appellant’s “failure

to call a witness.” Were it so, that would be impermissible. See State v. Mayhorn, 720

N.W.2d 776, 787 (Minn. 2006) (explaining how such a comment prejudices a criminal

defendant).




                                            9
       In context, the prosecutor was recounting certain pieces of evidence immediately

before making the statement, including the discrepancies between appellant’s statements

and appellant’s ultimate inability to identify the two suspects when Sergeant McCarty

presented him with a photo-identification lineup. The prosecutor made no comment on

appellant’s decision not to call those suspects as trial witnesses. Instead, the comment

was a reasonable argument concerning why appellant did not identify the two suspects in

the photo-identification lineup.

       We conclude that the prosecutor’s statement was a reasonable inference based on

the evidence. As such, it was not error. See State v. Jones, 753 N.W.2d 677, 691-92

(Minn. 2008) (“A prosecutor’s closing argument need not be colorless, so long as it is

based on the evidence or reasonable inferences from that evidence.”).

       C. Statement concerning obstruction of investigation

       Appellant next argues that the prosecutor improperly suggested that appellant

obstructed the police’s investigation by stating:

              Isn’t that what [appellant is] doing in this entire case, is
              telling half-truths? I want you to consider that. He says he’d
              been living in abandoned houses. That’s what he tells the
              officer, sends him off to Dupont Avenue as to where he gets
              his mail and stuff like that, occasionally goes there to take a
              shower. He tells you on the stand that he’s living in Crystal,
              frequently spends time with a cousin on Aldrich Avenue and
              33rd. Nowhere did he tell that to the officers. If indeed that
              was true when he was on the stand, he didn’t tell it to the
              officer at the time. And why wouldn’t he do that? Well,
              police can execute search warrants. They can go to places
              where people live. They can look for evidence that supports
              the crime. But if you don’t tell them where you live, you
              don’t give the police the information they need to be able to
              further investigate a crime.


                                             10
       The state’s argument properly emphasized that appellant gave inconsistent

statements concerning where he was living at the time of the offense. In context, where

appellant’s credibility was crucial, the argument was not improper.

       D. Burden of proof

       Finally, appellant argues that the prosecutor committed misconduct by stating:

“[T]o accept this defense of necessity, you must buy the whole story hook, line, and

sinker. You got to buy the whole thing. If you don’t buy part of it, [appellant] hasn’t met

his burden and he’s not credible.” We note that appellant’s initial brief framed this issue

as one of a misstatement of appellant’s burden. In his reply brief, appellant re-casts the

issue as one of an improper shifting of the burden of persuasion to appellant. Because

appellant did not raise the burden-shifting argument until his reply brief, the argument is

not properly preserved. Minn. R. Civ. P. 128.02, subd. 3; see State v. Thompson, __

N.W.2d __, __, 2015 WL 9437538 at *2 n.1 (Minn. App. Dec. 28, 2015) (“Generally,

issues not raised or argued in appellant’s principal brief cannot be revived in a reply

brief.”).

       On its merits, appellant’s creative burden-shifting argument relies on State v.

Hage, in which the Minnesota Supreme Court held that a criminal defendant bears the

burden of production, but not persuasion, when a necessity defense negates an element of

the crime. 595 N.W.2d 200, 204-07 (Minn. 1999). Appellant argued in his reply brief

that the necessity defense negates the “entitled to possess” element of Minn. Stat.

§ 624.713, subd. 1.



                                            11
       Even if the burden-shifting argument were considered to have been preserved,

appellant stipulated to the element in question at the district court. He agreed that he was

not a person entitled to possess a firearm.        He cannot argue on appeal that the

prosecutor’s comments impermissibly shifted the burden on an element to which he

stipulated at trial.   We therefore turn to appellant’s argument that the prosecutor’s

statement was a misstatement of appellant’s burden.

              1. The prosecutor’s statement was plain error.

       Appellant’s burden concerning his necessity defense did not require him to prove

his innocence, but only required that he prove it to be more likely than not that he acted

out of necessity. Hage, 595 N.W.2d at 204-05 (“[O]nce the state has met its burden of

proving beyond a reasonable doubt every element of the crime charged, the state may . . .

impose upon a criminal defendant the burden of proving by a preponderance of the

evidence that her conduct should be excused by some mitigating circumstance or issue.”).

       Despite the latitude afforded a prosecutor’s closing argument, the “hook, line, and

sinker” statement misstates the burden of proof. The jury plainly did not need to believe

every detail of appellant’s story. The necessity defense required only that the jury find it

more likely than not that appellant possessed the gun because he wrestled it away from a

would-be robber. The prosecutor’s statement instead suggested that the jury needed to

believe every detail of appellant’s story. The prosecutor’s “hook, line, and sinker”

comment was plainly erroneous.




                                            12
              2. The plain error did not affect appellant’s substantial rights.

       Under the modified plain-error standard, the state bears the burden of showing a

lack of prejudice where the prosecutor committed plain error. Ramey, 721 N.W.2d at

302. We consider “the strength of the evidence against the defendant, the pervasiveness

of the improper suggestions, and whether the defendant had an opportunity to (or made

efforts to) rebut the improper suggestions.” State v. Hohenwald, 815 N.W.2d 823, 835

(Minn. 2012) (quotation omitted). Additionally, “a prosecutor’s attempts to shift the

burden of proof are often nonprejudicial and harmless where, as here, the district court

clearly and thoroughly instructed the jury regarding the burden of proof.” State v.

McDonough, 631 N.W.2d 373, 389 n.2 (Minn. 2001).

       The prosecutor’s “hook, line, and sinker” comment was a single line in what

amounted to 34 pages of closing argument and rebuttal by the prosecutor. Upon careful

review of the closing argument, we conclude that the “hook, line, and sinker” comment

was the only instance where the prosecutor misstated the law. Both the prosecutor and

the district court correctly explained to the jury that the state had the burden of proving

appellant was guilty beyond a reasonable doubt and that appellant has the burden of

proving necessity by a preponderance of the evidence. And finally, appellant’s trial

counsel had the opportunity to rebut the misstatement, which occurred during the

prosecutor’s main closing argument. Appellant’s trial counsel took the opportunity in

closing to clarify the necessity defense and the preponderance-of-the-evidence standard.




                                            13
       Even though the prosecutor committed plain error with the “hook, line, and

sinker” comment, we conclude that the comment did not substantially influence the jury

to convict appellant.

       Affirmed.




                                         14
