                        This opinion will be unpublished and
                        may not be cited except as provided by
                        Minn. Stat. § 480A.08, subd. 3 (2016).

                             STATE OF MINNESOTA
                             IN COURT OF APPEALS
                                   A16-0448

                                 State of Minnesota,
                                    Respondent,

                                         vs.

                                Chris Harry McIntosh,
                                      Appellant.

                              Filed February 27, 2017
                                     Affirmed
                                  Connolly, Judge

                           Hennepin County District Court
                             File No. 27-CR-14-25870


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, Rachel F. Bond, Assistant Public
Defender, St. Paul, Minnesota (for appellant)



      Considered and decided by Reilly, Presiding Judge; Connolly, Judge; and

Bjorkman, Judge.
                          UNPUBLISHED OPINION

CONNOLLY, Judge

       Appellant argues he is entitled to a new trial because the prosecutor committed error

that affected his substantial rights, and that his case should be remanded because the district

court failed to consider his request for a downward dispositional departure. Because the

objected-to error was harmless, the alleged unobjected-to conduct did not constitute plain

error, and the district court sufficiently considered appellant’s departure request, we affirm.

                                           FACTS

       Respondent State of Minnesota charged appellant Chris Harry McIntosh with felony

second-degree assault, felony terroristic threats, and felony carrying a pistol without a

permit. The charges arose out of an incident with victim O.M. on September 2, 2015. After

a jury trial, the jury convicted appellant of second-degree assault and terroristic threats, and

acquitted appellant of carrying a pistol without a permit. The district court sentenced

appellant to 36 months in prison for the second-degree-assault conviction and imposed no

sentence for the terroristic-threats conviction.      On appeal, appellant argues that the

prosecutor committed error at trial, and that the district court either did not exercise or

abused its discretion in failing to consider his motion for departure.




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                                      DECISION

I.     Did the prosecutor commit error in closing argument and in questioning a
       witness?

       Objected-to error

       Appellant contends the prosecutor inappropriately shifted the burden during closing

arguments by saying certain facts were “impossible for the defendant to deny or disprove,”

a statement to which defense counsel objected. When reviewing objected-to prosecutorial

error, the supreme court has historically used a two-tiered approach that depends on the

severity of the error. See State v. Caron, 300 Minn. 123, 127-28, 218 N.W.2d 197, 200

(1974). In cases involving serious prosecutorial error, the supreme court has required

certainty beyond a reasonable doubt that the error was harmless before affirming, but in

cases involving less serious error, the supreme court has considered whether the error likely

played a substantial part in influencing the jury to convict. Id. However, it is unclear

whether the two-tiered test still applies. State v. Carridine, 812 N.W.2d 130, 146 (Minn.

2012). Recently, the supreme court has applied the standard for severe error, certainty

beyond a reasonable doubt that the error was harmless, and concluded that if the error is

harmless under that standard, there is no reason to address the standard for less serious

error because it could not be satisfied. Id.

       Misstatement of the burden of proof constitutes error. State v. Coleman, 373

N.W.2d 777, 782 (Minn. 1985). However, immediately after the prosecutor said certain

facts were “impossible for the defendant to deny or disprove,” defense counsel objected to

the prosecutor’s suggestion that defense must disprove anything, the district court sustained



                                               3
the objection, and the prosecutor moved on to a different argument.              Though the

prosecutor’s statement constituted error, “corrective instructions by the [district] court can

cure prosecutorial error.” State v. McDaniel, 777 N.W.2d 739, 750 (Minn. 2010). The

district court instructed the jury on the burden of proof three times, both before and after

closing arguments. Defense counsel frequently reminded the jury in closing argument that

the burden rested on the state, and the prosecutor reiterated the same in his rebuttal.

Additionally, we review “the closing argument as a whole, rather than just selective phrases

or remarks that may be taken out of context or given undue prominence to determine

whether reversible error has occurred.” Id. at 751. Given the context of the numerous

statements and instructions to the jury that the state had the burden of proof, we conclude

that the objected-to statement was harmless beyond a reasonable doubt.

       In State v. Wren, the Minnesota Supreme Court outlined a number of factors for

consideration when determining whether error is harmless beyond a reasonable doubt,

including “how the improper evidence was presented, whether the state emphasized it

during the trial, whether the evidence was highly persuasive or circumstantial, and whether

the defendant countered it.” 738 N.W.2d 378, 394 (Minn. 2007). The prosecutor’s

argument was not evidence, and the objected-to statement was brief, not referred to again,

and not persuasive as to appellant’s guilt. The analysis of these factors further supports the

conclusion that the objected-to statement was harmless beyond a reasonable doubt.

       Unobjected-to error

       Appellant alleges three unobjected-to instances of prosecutorial error: the

prosecutor described evidence as “undisputed and irrefutable” in closing, elicited


                                              4
testimony that one witness was surprised at another’s testimony, and invited the jury to

convict based on appellant’s confession. With respect to allegations of unobjected-to

prosecutorial error, appellate courts apply a modified plain-error test. State v. Ramey, 721

N.W.2d 294, 302 (Minn. 2006). Under this test, appellant must still establish that the

misconduct constitutes error and that the error was plain, which can be shown if the

misconduct contravenes caselaw, a rule, or a standard of conduct. Id. But the burden then

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

Id. This third prong “is satisfied if the error was prejudicial and affected the outcome of

the case.” State v. Griller, 583 N.W.2d 736, 741 (Minn. 1998). Even if the above three

prongs are met, this court will correct the error “only if the fairness, integrity, or public

reputation of the judicial proceeding is seriously affected.” State v. Jones, 678 N.W.2d 1,

18 (Minn. 2004).

       “Undisputed and irrefutable”

       The prosecutor referred to certain evidence as “undisputed and irrefutable” four

times, and the last two times indicated that that evidence was appellant’s own admissions.

Appellant argues this was improper because “[i]n a long line of cases, Minnesota’s courts

have held that it is prosecutorial misconduct to characterize the state’s evidence as

‘undisputed’ or ‘uncontradicted.’” Appellant relies on State v. DeVere and State v.

Streeter. State v. DeVere, 261 N.W.2d 604, 606 (Minn. 1977); State v. Streeter, 377

N.W.2d 498, 501 (Minn. App. 1985).

       In DeVere, the Minnesota Supreme Court reasoned that “prosecutors should avoid

using the word ‘uncontradicted’ when referring to the state’s evidence in closing argument


                                               5
because the danger exists that it will improperly suggest to the jury that the defendant has

an obligation to call witnesses.” 261 N.W.2d at 606. However, the supreme court went on

to note that the use of the term in context did not suggest to the jury that the defendant

should have called witnesses, and the district court had clarified that issue in its

instructions. Id. As a result, DeVere does not hold that the use of the term “uncontradicted”

necessarily constitutes error, as appellant argues. Further, the concern with the term

“uncontradicted” is that it implies a defendant has the duty to contradict the prosecution’s

evidence by calling witnesses. But the terms at issue here are “undisputed and irrefutable,”

which do not as strongly imply a requirement for a defendant to act in any given way,

particularly when combined with the repeated clarification by all involved that the state

carries the burden of proof. The context of these terms does not support a finding of plain

error.

         In Streeter, the prosecutor “characterized the State’s evidence as ‘uncontradicted’

or ‘undisputed’ at least eight times during the course of what was probably a ten-minute

closing argument,” and the theme of the prosecutor’s closing argument was that “the

defendant did not challenge the State’s case.” 377 N.W.2d at 501. Immediately after the

district court issued a cautionary instruction, the prosecutor in Streeter used the terms

again, and went on to directly state that there was no evidence and no testimony indicating

the facts as the state presented them were untrue. Id. In the case at hand, however, the

allegedly problematic terms were used three times in a closing argument that spans 27

transcript pages and once in a rebuttal that spans four transcript pages. This prosecutor’s

general theme in closing was that appellant confessed and witness testimony corroborated


                                              6
those confessions, not that appellant had failed to disprove the state’s case. And both

defense counsel and the prosecutor explicitly stated that appellant did not have to prove

anything and that the state had the burden of proof.

       The caselaw on which appellant relies is distinguishable and does not in fact

establish that the words “undisputed and irrefutable” necessarily constitute error.

Appellant has failed to show that the prosecutor’s use of these words in context constituted

plain error.

       Victim advocate’s surprise at O.M.’s testimony

       Appellant next contends that the prosecutor elicited inadmissible testimony by

asking “a witness to express an opinion on the truth of another witness’s testimony,

or . . . to comment on another witness’s testimony.” Appellant cites State v. Pilot as

support for the impropriety of this type of question, but the Minnesota Supreme Court

explicitly stated in Pilot that it had not adopted a blanket rule of law indicating the

impermissibility of such questions. 595 N.W.2d 511, 518 (Minn. 1999). The Pilot court

found no error when the prosecutor in that case directly asked “were they lying” questions.

Id. Pilot does not support the argument for which it is cited. Such questions do not

necessarily constitute error.

       Further, the prosecutor here did not directly elicit testimony as to the truth of another

witness’s testimony. Earlier in the trial, O.M. testified to a completely different version of

the facts than that which he described in his previous statements to police and to the

prosecutor’s office. In his testimony, O.M. said that a man named H.D. pointed a gun at

O.M. O.M. also testified that he spoke with the victim advocate “several times about being


                                               7
a part of this case,” including one instance in which he allegedly told her “somebody else

pointed a gun at [him] other than [appellant].” On direct examination of the victim

advocate, the prosecutor inquired as to whether O.M. ever mentioned H.D. before testifying

and she answered, “Never ever.” He next asked what her “response . . . [or] natural

reaction [was] when [she] heard that information.” The victim advocate responded that

she was “surprised and kind of amazed.”

       Though the difference is slight, the prosecutor’s question here was not a “were they

lying” question focused on eliciting the victim advocate’s opinion of another witness’s

testimony as appellant contends. Rather, the question seeks an alternative perspective on

events to which O.M. had testified. By asking such a question, the prosecutor responded

to O.M.’s implied questioning of the victim advocate’s credibility and offered more

evidence to permit the jury to make its own credibility determinations. Appellant has failed

to demonstrate that the prosecutor’s question to the victim advocate constituted plain error.

       Prosecutor’s reference to appellant’s confession

       Appellant next contends that “the prosecutor committed misconduct by misstating

the law.” Because Minnesota statutorily prohibits convicting a defendant on the basis of

confessions alone and requires other corroborating evidence, appellant argues that the

prosecutor’s repeated reference to appellant’s confession as satisfying all elements was

erroneous. Minn. Stat. § 634.03 (2014). However, a prosecutor can rely on confession

evidence in conjunction with other evidence, and the “evidence needed to corroborate a

confession to police is not required to address every element of the charged offense.” State

v. Heiges, 779 N.W.2d 904, 912 (Minn. App. 2010), aff’d, 806 N.W.2d 1 (Minn. 2011).


                                             8
“The state’s task is to bolster the confession by independent evidence of trustworthiness.”

Id. (quotation omitted). The prosecutor remarked on evidence other than the confession in

closing, in some instances noting that the jury could rely on evidence beyond the confession

and in other instances describing the corroborating evidence provided at trial. Had the

prosecutor argued for conviction solely on the basis of appellant’s confession, that would

have constituted error. But that is not the case here, and we review statements in closing

arguments in the context of the entire argument. McDaniel, 777 N.W.2d at 751. Appellant

has failed to demonstrate that the prosecutor’s repeated reference to the confession

constituted plain error.

       In sum, the objected-to error was harmless beyond a reasonable doubt. And

appellant has failed to satisfy the first two prongs of the modified plain-error test to

establish the alleged unobjected-to prosecutorial errors. Appellant is therefore not entitled

to a new trial.

II.    Did the district court abuse its discretion in sentencing by failing to thoroughly
       consider a dispositional departure on the record?

       Appellant argues that the district court erred by failing to consider his motion for a

downward dispositional departure at sentencing. “We afford the [district] court great

discretion in the imposition of sentences and reverse sentencing decisions only for an abuse

of that discretion.” State v. Soto, 855 N.W.2d 303, 307-08 (Minn. 2014) (quotation

omitted). A district court is not generally required to provide an explanation when it

considers reasons for departure but imposes a presumptive sentence. State v. Van Ruler,

378 N.W.2d 77, 80 (Minn. App. 1985). “Only the rare case will merit reversal based on



                                             9
the district court’s refusal to depart. When the record contains evidence of factors

supporting departure, which could have been, but were not, considered by the district court,

we may remand for consideration of those factors.” State v. Johnson, 831 N.W.2d 917,

925-26 (Minn. App. 2013) (emphasis added) (quotation omitted), review denied, (Minn.

Sept. 17, 2013).

       Appellant contends the district court failed to exercise its discretion by failing to

consider valid departure factors as the district court did in State v. Curtiss, 353 N.W.2d 262

(Minn. App. 1984). In Curtiss, the district court said only that there was “no justifiable

reason to deviate,” apparently precluding arguments for and against departure. 353

N.W.2d at 263. Here, the district court continued sentencing for the purpose of accepting

briefing on the very issues of departure and the applicability of mandatory minimums, and

to allow the district court time to read and research the arguments of counsel. We do not

assume that the district court intended to waste everyone’s time by continuing the

sentencing for briefing and then ignored both the briefs and the entire question of whether

a departure was appropriate.

       Alternatively, appellant contends the district court abused its discretion in denying

his motion for departure. Appellant contends there was evidence of factors supporting

departure before the district court; namely that appellant was “particularly amenable to

probation, as demonstrated by his acceptance of responsibility, his lack of any violent

criminal history, his relatively young age, and the state’s decision to extend an offer of a

probationary sentence before trial.” Appellant’s sentencing memorandum relied on the




                                             10
presentence investigation report (PSI), contending the PSI “provide[d] an ample basis to

depart in this case.” However, the evaluative summary in the PSI stated:

              Clearly, [appellant] has made attempts to make changes in his
              life, but his ability to sustain positive change is questionable at
              this time as it appears that, when not under direct scrutiny, he
              reverts to previously established patterns. For this reason, this
              Officer cannot find [appellant] amenable to probation or
              further community based services.

Based on this analysis, the PSI writer recommended sentencing pursuant to the Minnesota

Sentencing Guidelines, which presumed a commitment to the commissioner of corrections.

       The PSI recommendation did not consider application of any mandatory-minimum-

sentencing provisions, but the district court accepted briefing on the issue. The district

court determined appellant was subject to a mandatory-minimum sentence resulting from

the possession or use of a firearm in the commission of the offense. Minn. Stat. § 609.11,

subd. 5 (2014). But a district court may depart from a mandatory-minimum sentence if it

“finds substantial and compelling reasons to do so.” Minn. Stat. § 609.11, subd. 8(a)

(2014). If such reasons exist, the district court should deliberately consider them. Curtiss,

353 N.W.2d at 264.

       Here, the record supports the district court’s conclusion that there are not substantial

and compelling reasons to depart from the mandatory-minimum sentence. Appellant

argues that he is remorseful, youthful, and has a minimal criminal history. But as noted in

the PSI, he does not have the support of family, failed a urinalysis test, missed

appointments during his release, and had additional contact with law enforcement after

being charged with this offense. While some factors may arguably support amenability to



                                              11
probation, they do not reach the required showing of particular amenability to probation.

Soto, 855 N.W.2d at 308-09. The district court did not abuse its discretion in denying

appellant’s departure motion.

       Because the objected-to prosecutorial error was harmless beyond a reasonable doubt

and appellant failed to establish that unobjected-to conduct constituted plain error,

appellant is not entitled to a new trial. Because the district court sufficiently considered

appellant’s sentencing arguments and found no substantial and compelling reasons to

depart from the presumptive guideline sentence, it did not abuse its discretion in denying

appellant’s departure motion.

       Affirmed.




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