                        This opinion will be unpublished and
                        may not be cited except as provided by
                        Minn. Stat. § 480A.08, subd. 3 (2012).

                             STATE OF MINNESOTA
                             IN COURT OF APPEALS
                                   A13-2318

                                 State of Minnesota,
                                    Respondent,

                                         vs.

                               Kenny Dewayne Cooper,
                                     Appellant.

                              Filed December 15, 2014
                                     Affirmed
                                    Reyes, Judge

                           Hennepin County District Court
                              File No. 27CR1240953

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

Michael O. Freeman, Hennepin County Attorney, Jean E. Burdorf, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Michael W. Kunkel, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

       Considered and decided by Reyes, Presiding Judge; Peterson, Judge; and

Reilly, Judge.
                         UNPUBLISHED OPINION

REYES, Judge

       On appeal from his conviction of aiding and abetting first-degree aggravated

robbery, appellant argues that multiple incidents of prosecutorial misconduct affected the

jury’s verdict and deprived him of a fair trial. We affirm.

                                            FACTS

       On the evening of October 6, 2012, R.V. was in the front yard of his house when

he was approached by E.J., who was dressed in a light t-shirt, wore no shoes, and claimed

that he had just been robbed. The police were called, and E.J. stayed at the residence of

R.V. and M.V. until an officer responded. E.J. told the police that he had recently

purchased a car through Craigslist from an individual named “Jay,” but there was an

issue with getting title transferred to E.J.’s name. E.J. told the police that he had met up

with “Jay” to resolve the issue, but when he entered a vehicle occupied by “Jay” and

other individuals, he was robbed at gun point. The parties disagree about the events that

occurred prior to E.J. arriving at the residence of R.V. and M.V.

I.     Cooper’s Version

       Testifying on his own behalf, appellant Kenny Dewayne Cooper stated that in

early August of 2012, he was driving the Cutlass with a “For Sale” sign in the window

and was flagged down by E.J. The two discussed the car, and E.J. expressed a serious

interest in purchasing it. Approximately a week later, E.J. called Cooper and arranged to

meet at a service station to buy the car.




                                              2
         After test-driving the vehicle, E.J. agreed to purchase it, and Cooper called his

girlfriend to meet them with the title. Cooper testified that E.J. gave Cooper only $3,000

and stated that it was all the money he had with him. The two came to an agreement

where E.J. would owe Cooper the remaining $1,500 from the original sale price of

$4,500, and E.J. would be allowed to take possession of the car. Cooper, however, was

to retain the actual title to the car until the debt was paid. Cooper allowed E.J. to sign the

title as assurance that he would acquire ownership of the car once he had paid the full

amount.

         By the end of September, Cooper had not received the remaining $1,500. After

arguing over the phone about the money, Cooper told E.J. that he was going to report the

car stolen. Cooper testified that he reported the car stolen the day after their argument.

Cooper stated that he never saw E.J. again after the initial sale of the car and that he did

not rob him as E.J. claimed. Cooper admitted to lying to police initially when he was

arrested in connection with the robbery but explained that he did so because he was

concerned about having made the false report that the car had been stolen.

         At trial, Cooper’s brother, K.P., testified on behalf of Cooper and corroborated his

story.

II.      E.J.’s Version

         E.J. testified to the following at trial. After seeing a Craigslist posting for a 1987

Cutlass Supreme, E.J. called the number listed and spoke with a man who gave the names

“Jay” and “Supa.” At trial, E.J. identified this individual as Cooper. The two made

arrangements to meet up and discuss E.J.’s purchase of the car. On August 28, 2012, E.J.


                                                3
met Cooper at a service station and, after test driving the vehicle, E.J. agreed to purchase

the car. E.J. would pay the full asking price of $4,500 but demanded to be provided the

title before any payment was made. Cooper then called his girlfriend—the car’s actual

owner—and had her bring the title to the service station. Once he received the title, E.J.

gave Cooper $4,500 in cash, and Cooper gave him the keys to the car.

          E.J. went to the Department of Motor Vehicles (DMV) approximately one month

later to record the transfer of title for the car. E.J. was told that because he waited too

long to present the title to the DMV, he needed to get additional paperwork from the

seller of the vehicle. E.J. called Cooper and made arrangements to meet with him and his

girlfriend in a residential area of south Minneapolis to get their signatures on the

additional documents. When he arrived, E.J. was waved over to a vehicle occupied by

Cooper, Cooper’s girlfriend, and Cooper’s brother, and was told to get inside. Once

inside, E.J. gave Cooper the actual title and supplemental paperwork that needed signing.

After E.J. handed over the title, Cooper produced a handgun, pointed it at E.J.’s chest,

and demanded that he take off his jewelry, shoes, and jacket. Cooper’s brother reached

into E.J.’s pockets and removed his wallet and cell phone. When Cooper asked E.J. to

give up his car keys, E.J. ran from the car. After Cooper and the others left, E.J. went to

find help. A short time later, E.J. approached R.V. and asked for help in calling the

police.

          The state submitted other evidence to corroborate E.J.’s testimony. R.V., M.V.,

and the two responding police officers all testified regarding E.J.’s story. Evidence of the

subsequent investigation was provided, including a photo lineup identifying Cooper as


                                               4
the assailant, and phone records linking Cooper to the number E.J. called to arrange the

purchase of the car. The state also submitted bank statements, auto-repair receipts, and

elicited testimony of an auto-repair store owner, all of which corroborated E.J.’s version

of the events.

                                      DECISION

       Cooper advances several examples of the prosecutor committing misconduct by

eliciting prejudicial evidence of fear and by making multiple misrepresentations of the

state’s burden of proof. Allegations of unobjected-to prosecutorial misconduct are

reviewed under a modified plain-error test. State v. Ramey, 721 N.W.2d 294, 302 (Minn.

2006). There are three prongs to this test: (1) whether there was error; (2) whether the

error was plain; and (3) whether the plain error affected the defendant’s substantial rights.

State v. Griller, 583 N.W.2d 736, 740 (Minn 1998). If the three prongs are satisfied, this

court then assesses “whether [we] should address the error to ensure the fairness and

integrity of the judicial proceedings.” Griller, 583 N.W.2d at 740. The burden of proof

is on appellant to satisfy the first two prongs. Ramey, 721 N.W.2d at 302. An error is

plain if it contravenes case law, a rule, or a standard of conduct. Id. Upon making this

showing, the burden will shift to the state to prove that the error did not affect the

defendant’s substantial rights. Id. at 302. The third prong involves considering the

strength of the evidence against the defendant, the pervasiveness of the misconduct, and

whether the defendant had the opportunity or made efforts to rebut the impropriety. State

v. Hohenwald, 815 N.W.2d 823, 835 (Minn. 2012) (quoting State v. Davis, 735 N.W.2d

674, 682 (Minn. 2007)).


                                              5
I.     Claim of Prosecutorial Misconduct by Eliciting Evidence of Fear

       Cooper contends that the only purpose behind a particular portion of the state’s

line of questioning was to elicit a response showing that E.J. was afraid of Cooper.

Cooper claims that such prosecutorial misconduct was clearly prejudicial because it

insinuated that he possessed a violent character, which is particularly improper in a case

where—as here—credibility is at issue. We disagree.

       A.     Error.

       A prosecutor may commit misconduct by attempting to elicit or by actually

eliciting clearly inadmissible evidence, even if the district court does not rule on the

admissibility of the evidence. State v. Fields, 730 N.W.2d 777, 782 & n.1 (Minn. 2007).

Relevant evidence is generally admissible. Minn. R. Evid. 403. Evidence is relevant if it

has 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. “Bias, which may be induced by self-interest or by fear of

testifying for any reason, is almost always relevant because it is probative of witness

credibility.” State v. McArthur, 730 N.W.2d 44, 51 (Minn. 2007). However, even

relevant evidence “may be excluded if its probative value is substantially outweighed by

the danger of unfair prejudice.” Minn. R. Evid. 403. As such, district courts “should be

concerned that the evidence of fear is not used to create an inference that a defendant is a

bad person who is likely to commit a violent crime.” McArthur, 730 N.W.2d at 51.

       On direct examination by the state, E.J. was asked where he was employed. E.J.

replied that he would “rather not mention” the specific location. Then, on cross-


                                              6
examination, E.J. testified that he placed the title to the vehicle in a safe but again refused

to answer when asked by defense counsel about the safe’s location. On redirect, the

prosecutor asked E.J. about his reluctance to answer these two questions:

              Q:     [ E.J.], . . . I asked you where you worked; you didn’t
              want to tell me. The defense attorney is asking you about the
              location of the safe; you didn’t want to say. Could you tell us
              why you didn’t want to answer those questions?

              A:     Just concerned about with the defendant being in the
              room of any of my whereabouts or places that I may be going,
              don’t want him to know at all.

Cooper argues that because E.J.’s employment and the location of the safe were both

irrelevant as to whether an aggravated robbery actually occurred, the reasons why E.J.

was reluctant to provide that information was also irrelevant. Therefore, Cooper

maintains, the only purpose behind the prosecutor’s question was to elicit a response

exhibiting E.J.’s fear of Cooper.

       The prosecutor did not err in asking E.J. about his reluctance to answer every

question. In McArthur, the supreme court noted that “[e]vidence of [a witness’s] fears of

testifying both tend to be relevant to general witness credibility or to explain a witness’s

reluctance to testify or inconsistencies in a witness’s story.” 730 N.W.2d at 52. Here, the

prosecutor’s question was aimed at clarifying the incomplete portions of E.J.’s testimony

rather than exposing E.J.’s fearfulness. E.J.’s testimony that he did not want to answer

the previous questions in the presence of Cooper served to explain his previous

reluctance during direct examination and cross-examination. Furthermore, the

prosecution followed the supreme court’s previous guidance and limited E.J.’s testimony



                                               7
about his fear to redirect examination. State v. Hayes, 826 N.W.2d 799, 807 (Minn.

2013) (“[T]he best practice in most cases is to limit a witness’s testimony about … fear to

redirect examination.”). Accordingly, the prosecutor’s question did not constitute error.

II.    Claim of the Prosecutor Misrepresenting the Burden of Proof

       Cooper next argues that, during the state’s closing argument, the prosecutor

misrepresented the burden of proof by (1) encouraging the jury to use consciousness-of-

guilt evidence as a presumption of guilt and (2) stating that if the jury believed E.J.’s

testimony, then Cooper must be guilty.

       A.     Consciousness-of-Guilt Evidence

              1.     Error.

       In its closing argument, the prosecution told the jury the following:

              If you disbelieve the defendant, that you believe he got up
              there and told you a lie, which the evidence shows he did, you
              need to answer some questions. He backtracked. Well, yeah,
              I lied to police. Well, it really wasn’t a lie. It was Sergeant
              Sanden asked the wrong questions. He couldn’t keep the
              story straight.

              Well, he’s the one that has a reason to lie. If he has a reason
              to lie, that means he’s guilty because why else would he lie?

Cooper argues that the statement, “If he has a reason to lie, that means he’s guilty” is an

impermissible misrepresentation of the state’s burden of proof. This statement, Cooper

contends, suggested to the jury that Cooper’s admitted dishonesty was sufficient evidence

in and of itself to support a conviction. Cooper argues that such a suggestion was

improper given Minnesota’s stance on consciousness-of-guilt evidence.




                                              8
       Minnesota has recognized that evidence of a defendant’s conduct subsequent to an

offense is generally admissible. State v. McTague, 252 N.W. 446, 190 Minn. 449 (Minn.

1934). However, the McTague court specified that subsequent conduct is “a

circumstance to be considered—not as a presumption of guilt, but as something for the

jury—as suggestive of a consciousness of guilt.” 252 N.W. at 448, 190 Minn. at 453

(emphasis added). While Cooper’s dishonesty with the police is certainly admissible as a

“circumstance to be considered” by the jury in making a credibility determination,

McTague makes clear that such dishonesty should not burden a defendant with a

“presumption of guilt.” But the prosecutor’s statement that “[i]f he has a reason to lie,

that means he’s guilty” suggests that Cooper’s subsequent conduct—his dishonesty—

should be sufficient to show that he is guilty. Such a statement suggests that Cooper’s

subsequent conduct be considered a “presumption of guilt” rather than simply a

“circumstance to be considered” by the jury. Given McTague, the prosecutor’s statement

constituted an error.

              2.        Plain.

       “An error is plain if it is clear and obvious at the time of appeal. An error is clear

or obvious if it contravenes case law, a rule, or a standard of conduct.” State v. Little,

851 N.W.2d 878, 884 (Minn. 2014) (quotations omitted). Here, the error was plain

because it violated a recognized standard of conduct announced by McTague, a decision

issued in 1934.




                                             9
              3.     Substantial Rights.

       Next, we determine whether the comment was prejudicial to Cooper’s substantial

rights. A prosecutor’s attempt to shift the burden is nonprejudicial and harmless if the

district court properly and thoroughly instructs the jury regarding the burden of proof.

State v. Buggs, 581 N.W.2d 329, 341-42 (Minn. 1998). The district court here informed

the jury of the state’s burden and gave a proper definition of reasonable doubt. The jury

was also instructed that statements by attorneys are not evidence. Furthermore, the

statement that “[i]f he has a reason to lie, that means he’s guilty” was the only improper

consciousness-of-guilt argument the prosecutor made. Because “courts must look at the

closing argument as a whole, rather than just selective phrases or remarks that may be

taken out of context,” the prosecutor’s statement did not impair Cooper’s substantial

rights. State v. McDaniel, 777 N.W.2d 739, 751 (Minn. 2010) (quotation omitted).

       B.     Prosecutor’s Arguments that Belief in the Victim Necessitates Finding
              of Cooper’s Guilt

              1.     Error.

       Cooper argues that the prosecutor misrepresented the state’s burden of proof when

he made several arguments to the jury, all of which were some variation of “if you

believe when [E.J.] got up in here and told you his testimony, if you believe that is true,

[Cooper] is guilty.” The prosecutor made this type of argument in three other instances




                                             10
during his closing argument.1 Cooper concedes that while a single credible witness may

be sufficient—on review—to support a jury’s finding of guilt beyond a reasonable doubt,

Cooper argues that Minnesota law does not permit juries to be told that the state has

necessarily met its burden of proof simply if the jury believes a particular witness’s

testimony.

       Minnesota law supports Cooper’s interpretation. Cooper rightly points out that the

phrase, “If E.J. is telling the truth, then Cooper is guilty” necessarily implies the phrase,

“If Cooper is not guilty, then E.J. is not telling the truth.” But the jury does not need to

find E.J. untruthful in order to acquit Cooper. The supreme court has previously noted

the dangers inherent in such an argument when analyzing the validity of “were they

lying” questions. See generally State v. Pilot, 595 N.W.2d 511 (Minn. 1999). The court

acknowledged that such questions are “perceived as unfairly giving the jury the

impressions that in order to acquit, they must determine that witnesses whose testimony

is at odds with the testimony of the defendant are lying.” Id. at 516.

       The dangers inherent in “were they lying” questions are similarly present in the

prosecutor’s “If E.J. is telling the truth, then Cooper is guilty” argument. As this court

stated in State v. Leutschaft, “credibility is a broader concept than truthfulness versus

lying.” 759 N.W.2d 414, 422 (Minn. App. 2009), review denied (Minn. Mar. 17, 2009)


1
  At various points, the prosecutor argued: “No different than in a domestic assault. If
you are sitting here and a wife comes in and says her husband hit her, and you believe
her, that is all the evidence you need to find that husband guilty.” . . . “If you believe
[E.J.], as I said, the defendant is guilty.” . . . “If you believe he was honest with you,
there’s no reason not to, and the defendant has been proven guilty beyond a reasonable
doubt.”

                                              11
(“[Credibility] encompasses honest inaccuracy stemming from deficiencies in the ability

or the opportunity to acquire personal knowledge of the facts; honest but faulty recall;

and honest but inadequate narrative on the witness stand, which may have numerous

linguistic, cultural, and cognitive influences.”). The prosecutor’s argument creates a

“structural unfairness by providing only two choices when others not only might exist but

also might be more likely.” Id. Simply put, the jury did not need to first find that E.J.

was lying in order to acquit Cooper. State v. Morton, 701 N.W.2d 225, 235 (Minn. 2005)

(holding that the use of “were they lying” questions was improper because “the state

shifted the jury's focus by creating the impression that the jury must conclude that these

two witnesses were lying in order to acquit Morton”). Thus, these types of arguments

were made in error.

              2.      Plain.

       As the previous analysis illustrates, the law on “were they lying” was well settled

at the time of Cooper’s trial and appeal. Accordingly, the error was plain. Little, 851

N.W.2d at 884.

              3.      Substantial Rights.

       Because Cooper has established plain error, the burden shifts to the state to show

that the error did not affect Cooper’s substantial rights. State v. Carridine, 812 N.W.2d

130, 146 (Minn. 2012). However, the state’s brief lacks any discussion on the effect of

the potential errors on Cooper’s substantial rights. The issue is now whether the state’s

failure to brief the issue should result in a waiver of any argument that the plain error did

not affect Cooper’s substantial rights.


                                             12
       When prosecutorial misconduct is alleged, the burden of persuasion falls squarely

on the state to show that any misconduct did not affect Cooper’s substantial rights.

Ramey, 721 N.W.2d at 300 (“We conclude that prosecutorial misconduct is the type of

trial error that justifies a shift in the burden for determining whether the plain error

affected the defendant’s substantial rights.”). The decision to employ a modified plain-

error analysis for instances of prosecutorial misconduct—as opposed to the traditional

plain-error analysis in which the burden of persuasion is placed upon the defendant for all

three prongs—is motivated by the “affirmative obligation [of prosecutors] to ensure that a

defendant receives a fair trial, no matter how strong the evidence of guilt.” Id.

Moreover, in State v. Porte this court considered whether the state waived a harmless-

error argument by failing to assert it in its responsive brief and we concluded that the

state’s failure to raise the argument did constitute a waiver of the issue and reversed and

remanded for a new trial. 832 N.W.2d 303, 312-14 (Minn. App. 2013). Notably, Porte

involved an objected-to error in which the defendant bore the burden to show that the

error was not harmless. The matter at hand involves unobjected-to prosecutorial

misconduct, meaning the state has the burden of showing that the error was harmless.

Ramey, 721 N.W.2d at 302. Despite its clear burden of persuasion, the state did not brief

this issue at all. As such, the state waived any argument that the error did not affect

Cooper’s substantial rights.

              4.      Fairness and Integrity of Judicial Proceedings.

       Because all three prongs of the plain-error test have been satisfied, we must next

address whether a reversal is required “to ensure the fairness and integrity of the judicial


                                              13
proceedings.” Hill, 801 N.W.2d at 654. A reversal is not required to preserve the

integrity of judicial proceedings if granting a defendant a new trial would be an “exercise

in futility.” Griller, 583 N.W.2d at 742.

       Although it was improper for the prosecutor to argue that believing E.J.’s

testimony necessitates a guilty verdict, it is unlikely that such an argument affected the

outcome. Davis, 735 N.W.2d at 682. The supreme court’s reasoning in Griller informs

our analysis in the current matter. In Griller, the court concluded that granting a new trial

would be a “miscarriage of justice” because “Griller was afforded a complete adversarial

trial that lasted eight days. During his trial, Griller thoroughly presented his self-defense

theory of the case. The jury considered and rejected Griller’s far-fetched version of

events.” Griller, 583 N.W.2d at 742. The same can be said here—Cooper was afforded

a complete adversarial trial, Cooper presented his theory of the case, and the jury

considered and rejected Cooper’s version of the events. The jury’s decision to find E.J.’s

version more credible is supported by the additional evidence presented by the state,

including testimony and exhibits which corroborated E.J.’s version of the events. As was

the conclusion in Griller, granting a new trial under these circumstances “would be an

exercise in futility and a waste of judicial resources.” Id. Therefore, a reversal is not

warranted.

       Affirmed.




                                             14
