                          This opinion will be unpublished and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
                                     A15-0031

                                    State of Minnesota,
                                        Respondent,

                                            vs.

                              Lorenzo Leontay Washington,
                                       Appellant.

                                Filed February 16, 2016
                                       Affirmed
                                   Bjorkman, Judge


                             Hennepin County District Court
                               File No. 27-CR-13-29611

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

Michael O. Freeman, Hennepin County Attorney, Linda K. Jenny, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Charles F. Clippert, St. Paul, Minnesota (for appellant)

         Considered and decided by Bjorkman, Presiding Judge; Ross, Judge; and Larkin,

Judge.

                         UNPUBLISHED OPINION

BJORKMAN, Judge

         Appellant challenges his convictions of aiding and abetting attempted second-

degree murder and aiding and abetting second-degree assault, arguing that the district court
improperly admitted Spreigl evidence, the prosecutor engaged in prejudicial misconduct,

the evidence was insufficient to sustain the attempted-murder conviction, and the district

court’s sentencing decision was improperly influenced by appellant’s exercise of his trial

rights. We affirm.

                                          FACTS

        Appellant Lorenzo Leontay Washington was charged with aiding and abetting

second-degree assault, aiding and abetting attempted first-degree aggravated robbery, and

aiding and abetting attempted second-degree murder following a July 11, 2013 incident.

The state alleged that on that day, Washington, Cartrell Smith, and O.W. confronted D.P.,

chased him for several blocks on their bicycles, and then shot him. Washington and

Smith’s cases were joined for trial. The jury acquitted both men of attempted aggravated

robbery, but could not agree on a verdict on the other charges. Washington and Smith were

retried together on the assault and attempted second-degree-murder charges.

        At the second trial, D.P. testified about the relationships among the various

individuals. In 2010 or 2011, Juwon Osborne—also known as “Skitz”—shot D.P. D.P.

did not report this incident to the police because he did not want to be called a “snitch.”1

He knew that Osborne and Washington were associated, and he had issues with

Washington. In 2012, D.P. and Washington resided together at a treatment facility. While

at the facility, the two argued after Washington told other residents that Osborne shot D.P.’s

testicles off. D.P. described himself and Washington as “always . . . in a conflict.”



1
    Subsequently, Osborne was fatally shot.

                                              2
       D.P. also testified about the July 11, 2013 shooting. On that day, he was confronted

by a group of individuals on bicycles, one of whom called out the name “Skitz.” D.P.

recognized several of the individuals, including Washington, Smith, and O.W. D.P. fled

on his bicycle, and the group followed. When D.P. was approximately one block from his

friend J.J.’s house, he heard gunshots and a “ting sound” on his bicycle, which he thought

was made by a bullet. D.P. attempted to enter J.J.’s house, but no one responded when he

knocked on the door and windows. While standing in J.J.’s backyard, D.P. saw Smith

holding a gun in the middle of the street and Washington standing near the front of the

house. D.P. attempted to run and heard Washington say, “there he goes, there he goes.”

Smith shot at D.P. four times, hitting him in the buttocks. The group then rode away on

their bicycles.

       After he was shot, D.P. saw a police car approaching and went to the officer for

help. D.P. told Officer Michael Killebrew that he had been shot and that Washington and

O.W. were members of the group that shot him. D.P. testified that he did not identify the

shooter at that time because he did not “want to be telling on nobody.” D.P. was then

transported to North Memorial Hospital.

       Sergeant Kelly O’Rourke testified that he spoke with D.P. in the hospital five days

after the shooting. D.P. reported that Washington and O.W. were in the group that

confronted him, and that Smith shot him. D.P. again stated that a member of the group

called out “Skitz,” and that Washington was the person who said “there he is, there he is”

before the shots were fired. On July 18, Sergeant O’Rourke returned to the hospital with




                                            3
his partner, who administered a photo lineup. D.P. again identified Washington, Smith,

and O.W., and stated that Smith was the shooter.2

       Sergeant O’Rourke also testified that he reviewed video footage from public-safety

cameras located in close proximity to the shooting, but the footage did not contain relevant

information. A defense investigator also reviewed the footage and testified that it did not

show any type of chase, but revealed one or two people riding bicycles in a casual manner.

A map showing the location of the cameras demonstrates that none are present at the

intersection where the shooting occurred.

       The jury found Washington guilty of aiding and abetting second-degree assault and

aiding and abetting attempted second-degree murder. Washington moved for a downward

dispositional sentencing departure. The district court denied the motion and imposed a

presumptive 131-month sentence. Washington appeals.

                                         DECISION

I.     The district court did not abuse its discretion by admitting evidence of prior
       contact between Washington and D.P. without conducting a Spreigl analysis.

       As a general rule, relevant evidence is admissible. Minn. R. Evid. 402; State v.

Swinger, 800 N.W.2d 833, 839 (Minn. App. 2011), review denied (Minn. Sept. 28, 2011).

Evidence of motive is typically relevant—even when not an element of the charged

offense—because it can explain the reason for a person’s actions. See State v. Ness, 707



2
  D.P. previously testified at O.W.’s trial that Washington, Smith, and O.W. were present
at the scene, but he did not know the identity of the shooter. At Washington and Smith’s
second trial, D.P. explained that he did not identify Smith as the shooter at O.W.’s trial
because he did not want to be a “snitch,” and he was concerned for his safety.

                                             4
N.W.2d 676, 687 (Minn. 2006). But “[e]vidence of another crime, wrong, or act is not

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

therewith.” Minn. R. Evid. 404(b). Such evidence may be admissible for another purpose,

such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or

absence of mistake. Id.; State v. Spreigl, 272 Minn. 488, 491, 139 N.W.2d 167, 169 (1965).

We review a district court’s evidentiary ruling for an abuse of discretion. State v. Loving,

775 N.W.2d 872, 879 (Minn. 2009).

       Washington challenges the admission of D.P.’s testimony that Washington

associated with Osborne, that D.P. and Washington argued in 2012 at a treatment facility,

and that D.P. and Washington were “always . . . in a conflict.” The testimony did not

include details of the contacts and relationship between Washington and D.P., and did not

reference criminal acts or gang affiliation. In short, the challenged testimony provided

background about how D.P. and Washington knew each other, and Washington’s potential

motive for the shooting. Because we conclude that this does not constitute Spreigl

evidence, the district court was not required to conduct the five-step process for admitting

such evidence. See Ness, 707 N.W.2d at 686 (stating the five-step analysis for admitting

Spreigl evidence). And even if this evidence did constitute Spreigl evidence, it was

admissible because it explained the relationship between Washington and D.P. and

established a motive for the commission of the offense. State v. Schweppe, 306 Minn. 395,

402, 237 N.W.2d 609, 615 (1975); see also Ness, 707 N.W.2d at 687 (stating that although

motive is not an element of most crimes, the state is usually entitled to present motive

evidence to help explain the reason for an act).


                                             5
       Although we discern no abuse of discretion by the district court in admitting this

evidence, we note that any prejudicial effect is minimal. The court did not permit any

references to gang affiliations and there was no suggestion that Washington’s prior

encounters with D.P. constituted criminal activity. Moreover, any prejudice that occurred

by admitting evidence of the incident at the treatment facility and the continued animosity

between Washington and D.P. also worked against the state. The strained relationship

between Washington and D.P. could provide an incentive for D.P. to lie, which the defense

expressly asserted in its closing argument.

II.    The prosecutor did not commit prejudicial misconduct.

       Washington argues that the prosecutor engaged in both unobjected-to and objected-

to misconduct. We look at the trial as a whole to determine whether prosecutorial

misconduct warrants a new trial. See State v. Johnson, 616 N.W.2d 720, 727-28 (Minn.

2000) (stating when courts consider claims of prosecutorial misconduct in closing

argument the arguments are considered as a whole); see also State v. Hoppe, 641 N.W.2d

315, 321-22 (Minn. App. 2002) (holding that a new trial was warranted after considering

all instances of prosecutorial misconduct), review denied (Minn. May 14, 2002). We apply

a different standard of review to unobjected-to and objected-to misconduct. Accordingly,

we address each category in turn.

       Unobjected-to misconduct

       We review unobjected-to prosecutorial misconduct under a modified plain-error

standard, considering whether there is “(1) error, (2) that is plain, and (3) affects substantial

rights.” State v. Ramey, 721 N.W.2d 294, 302 (Minn. 2006). On the third element, the


                                               6
state bears the burden of proving that the misconduct did not affect the defendant’s

substantial rights. Id.

       Washington first argues that the prosecutor disparaged the defense when he stated

that one of its theories was “absurd” and argued that the defense investigator “cherry-

picked” the photographs he described. We are not persuaded. In Hoppe, we held that a

prosecutor committed misconduct when he stated the defendant’s argument was

“ridiculous” and told the jury not to be “snowed” by the defense. 641 N.W.2d at 321. But

in State v. Matthews, our supreme court held that a prosecutor did not engage in misconduct

by describing the defense’s explanation of events as “concocted,” “ridiculous,” and

“unbelievable.” 779 N.W.2d 543, 552 (Minn. 2010). The supreme court reasoned that the

prosecutor’s statement was directed at witness credibility rather than the defendant’s

broader theory of defense. Id. We conclude this case is more like Matthews. The

prosecutor’s statements, considered in context, urged the jurors to find D.P.’s testimony

credible. As such, they do not amount to misconduct.

       Next, Washington contends that the prosecutor committed misconduct by telling the

jury that their duty was to find the truth. In State v. Ashby, the supreme court concluded

that the prosecutor’s admonition to the jury to “keep its eyes on the prize” of truth was not

misconduct because the statement was made in the context of the jury’s duty to evaluate

witness credibility. 567 N.W.2d 21, 28 (Minn. 1997). Similarly, in State v. Bailey, the

supreme court held that it was not misconduct for the prosecutor to tell the jurors they were

“truth seekers” and to argue that they should “search for the truth in the evidence.” 677

N.W.2d 380, 403 (Minn. 2004). Here, the prosecutor referred to the jury’s duty to find the


                                             7
“truth” or render a “true verdict” on at least eight occasions. But the majority of these

references were made in the context of evaluating the credibility of witness testimony,

particularly D.P.’s credibility, on which the state’s case largely turned. On this record, we

discern no misconduct.

       Washington also asserts that the prosecutor improperly shifted the burden of proof

to the defense by arguing that “if someone wanted to challenge [D.P.]’s assessment that

[Washington and Osborne] were aligned, someone could have done that.” This argument

has merit. A prosecutor may not comment on a defendant’s failure to contradict testimony.

State v. Porter, 526 N.W.2d 359, 365 (Minn. 1995) (concluding that arguing testimony is

“uncontradicted” or is “without impeachment by any cross-examination” constitutes

misconduct). By suggesting that Washington should have presented evidence regarding

Washington’s claimed association with Osborne, the prosecutor violated clear precedent,

thereby committing misconduct.

       Because we conclude that the prosecutor committed misconduct, we must determine

whether Washington’s substantial rights were affected. See Ramey, 721 N.W.2d at 302

(stating that the state must prove there is no reasonable likelihood that the absence of the

misconduct would have significantly affected the jury’s verdict). Washington cites Porter,

where our supreme court held that the prosecutor’s misconduct was not harmless beyond a

reasonable doubt. 526 N.W.2d at 365-66. But that conclusion was not solely based on the

prosecutor’s improper burden-shifting comment. Id. Rather, the prosecutor’s misconduct

in Porter included appealing to the passions and prejudices of the jury, arguing the

consequences of the jury’s verdict, bolstering the credibility of the state’s expert witness,


                                             8
distorting the burden of truth, and alluding to the defendant’s failure to contradict certain

testimony. Id. (stating that the prosecutor’s misconduct “permeated the entire closing

argument”).

       In contrast, the prosecutor’s misconduct here falls substantially short of Porter’s

mark. The misconduct consisted of one improper burden-shifting statement; it did not

permeate the entire closing argument. The improper statement was only one sentence out

of a closing argument and rebuttal that spanned approximately 45 pages. See Matthews,

779 N.W.2d at 552 (stating misconduct limited to “a few lines in a 48-page closing

argument” did not affect defendant’s substantial rights). Accordingly, we conclude that

the misconduct did not affect Washington’s substantial rights.

       Objected-to misconduct

       When an objection is made at trial, we first determine whether the prosecutor

engaged in misconduct, and then apply a “two-tiered harmless-error analysis.” State v.

Jackson, 773 N.W.2d 111, 121 (Minn. 2009). If the misconduct is unusually serious, the

court must decide whether it was harmless beyond a reasonable doubt.             Id. If the

misconduct is less serious, we consider whether it likely played a substantial part in

influencing the jury’s verdict. Id.

       Washington argues that the prosecutor committed misconduct by asking the defense

investigator, on cross-examination, “[s]o your job isn’t to find the truth, right?”

Washington offered no legal basis for his objection, but asserts on appeal that the question

disparaged the defense. Washington points to State v. Griese for the proposition that

disparagement occurs when the prosecutor argues that a particular defense was presented


                                             9
because it was the only one that could succeed. 565 N.W.2d 419, 427 (Minn. 1997).

Because the prosecutor made no such argument, we are not persuaded. Washington also

argues that the question implied that the investigator was not testifying truthfully. The

prosecutor asked the investigator about his job duties, if he worked for the defense, and

whether his job was to assist the defense. The objected-to question may have more directly

challenged the investigator’s credibility but we do not view this as outside the scope of

permissible cross-examination. Moreover, the state essentially conceded the primary

substance of the investigator’s testimony—that the chase and the shooting did not appear

on any of the video footage. On this record, we discern no prejudicial error.

III.   The evidence was sufficient to prove that Washington aided and abetted
       attempted second-degree murder.

       When considering a sufficiency-of-the-evidence challenge, our review is limited to

determining whether the evidence was sufficient to permit the jury to reach the verdict that

it did. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). We review the evidence in the

light most favorable to the verdict and assume that the fact-finder disbelieved any

testimony conflicting with that verdict. State v. Chavarria-Cruz, 839 N.W.2d 515, 519

(Minn. 2013); State v. Hokanson, 821 N.W.2d 340, 353 (Minn. 2012). We defer to the

fact-finder’s credibility determinations, State v. Buckingham, 772 N.W.2d 64, 71 (Minn.

2009), and will not disturb a verdict if the jury, acting with due regard for the presumption

of innocence and the requirement of proof beyond a reasonable doubt, could reasonably

conclude that the defendant was guilty of the charged offense. Bernhardt v. State, 684

N.W.2d 465, 476-77 (Minn. 2004).



                                             10
       Washington asserts that the evidence was insufficient to prove that he was involved

in the shooting. We disagree. Identification is a question of fact for the jury to decide.

State v. Oates, 611 N.W.2d 580, 586 (Minn. App. 2000), review denied (Minn. Aug. 22,

2000). D.P. testified that Washington was one of the individuals who pursued him on the

day in question and that Washington shouted “there he goes, there he goes” immediately

before Smith shot him. D.P. identified Washington in his initial contact with Officer

Killebrew, his interview with Sgt. O’Rourke at the hospital, during a photo lineup, during

O.W.’s trial, and again in court during Washington’s trial. Whether D.P.’s testimony was

credible is a jury determination to which we must defer. Buckingham, 772 N.W.2d at 71.

Because a verdict can be based on the testimony of a single credible witness, we conclude

that the evidence is sufficient to support Washington’s conviction. See Caldwell v. State,

347 N.W.2d 824, 828 (Minn. App. 1984).

IV.    The district court’s sentencing decision was not improperly influenced by
       Washington’s decision to exercise his constitutional trial rights.

       We review sentences imposed by a district court for abuse of discretion. State v.

Delk, 781 N.W.2d 426, 428 (Minn. App. 2010), review denied (Minn. July 20, 2010). It is

a “rare” case in which we reverse a sentence within the presumptive guidelines range. Id.

But the fact that a defendant exercises his constitutional trial rights must have no bearing

on his sentence. State v. Mollberg, 310 Minn. 376, 388, 246 N.W.2d 463, 471 (1976). On

appeal, the record must show that the district court sentenced the defendant based on the

facts of the case and his personal history, and not as a punishment for pleading not guilty.

State v. Knaak, 396 N.W.2d 684, 689 (Minn. App. 1986).



                                            11
       Washington argues that the district court imposed a 131-month presumptive

sentence based, at least in part, on Washington’s decision to exercise his trial rights. He

points out that during a May 5, 2014 pretrial hearing, the district court stated the following

while in chambers:

              So I don’t know what a jury would do, but I think that under
              the circumstances probation is a reasonable offer given the fact
              [that the defendants have] already spent a year in. And I’m not
              saying that [the state] should do that. I’m saying that under the
              circumstances on a straight plea I would do that . . . .

Washington asserts that these statements create an inference that the district court punished

him for pleading not guilty and going to trial.

       Washington cites United States v. Medina-Cervantes to support his assertion that

his sentence was improperly influenced by his decision to stand trial. 690 F.2d 715, 716-

17 (9th Cir. 1982). In that case, the sentencing judge stated that the defendant’s insistence

on proceeding to trial cost the government money, and reflected the defendant “thumbing

his nose at [the] judicial system.” Id. at 716. The Ninth Circuit vacated the defendant’s

sentence because there was nothing in the record to rebut the inference that a more severe

sentence was imposed because the defendant exercised his trial rights. Id. at 716-17. In

contrast to Medina-Cervantes, the record before us rebuts the inference that Washington

was punished for pleading not guilty.

       First, the district court’s statement concerning a probationary sentence was made in

the context of the parties’ plea negotiations. On May 5, the district court ruled on various

pretrial motions—primarily evidentiary motions—in open court. The attorneys and the

judge then continued discussing the trial in chambers. The conversation in chambers


                                             12
largely focused on whether the state intended to proceed with trial. In light of that

discussion, the judge’s statements appear to have been directed toward the state to advance

a settlement offer, rather than toward Washington to encourage him to plead guilty.3

       Second, the district court articulated several grounds for its decision at the

sentencing hearing. These reasons included Washington’s rehabilitative-treatment history,

criminal history, known gang affiliation, and present conviction. This shows that the

district court based its sentencing decision on the facts of the case and Washington’s

personal history. On this record, we conclude that Washington was not punished for

exercising his trial rights.

       Affirmed.




3
  The district court was encouraging plea negotiations, but the parties do not contend that
the court’s involvement in the negotiations was excessive. See State v. Anyanwu, 681
N.W.2d 411, 414-15 (Minn. App. 2004) (stating that a court should not inject itself into
plea negotiations and step into the position of one of the parties to the negotiation).

                                            13
