                        This opinion will be unpublished and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
                                   A14-1917

                                 State of Minnesota,
                                     Respondent,

                                         vs.

                              Brandon Allen Anderson,
                                    Appellant

                             Filed November 16, 2015
                       Affirmed in part and reversed in part
                                   Worke, Judge

                            Chisago County District Court
                               File No. 13-CR-13-479

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

Janet Reiter, Chisago County Attorney, David W. Hemming, Assistant County Attorney,
Center City, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Jessica Merz Godes, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

      Considered and decided by Hooten, Presiding Judge; Halbrooks, Judge; and

Worke, Judge.

                       UNPUBLISHED OPINION

WORKE, Judge

      Appellant challenges his convictions of domestic assault and violation of a

domestic abuse no contact order (DANCO), arguing that the prosecutor committed
misconduct during closing argument by arguing a fact not in evidence, the evidence fails

to show that he knowingly violated the DANCO, and the district court failed to make

findings on an element of the DANCO-violation offense.           We affirm appellant’s

domestic-assault conviction, but because the prosecutor committed prejudicial

misconduct and the evidence fails to support the DANCO-violation conviction, we

reverse appellant’s DANCO-violation conviction.

                                        FACTS

      On June 19, 2013, police officers were dispatched on a report of a domestic

assault. C.Z. reported that appellant Brandon Allen Anderson, her boyfriend, smashed

her cell phone, pushed her, and stomped on her foot. She also reported that there was an

active DANCO that prohibited Anderson from having contact with her absent the

presence of an adult third party. Anderson was charged with felony domestic assault

(bodily harm), felony domestic assault (intent to cause fear), and violation of a DANCO.

      At Anderson’s court trial, C.Z.’s testimony was inconsistent with her prior

statements. The district court heard C.Z.’s 911 call, in which she stated that Anderson

smashed her phone and hit her. The 911 operator testified that C.Z. sounded “[v]ery

scared[,] . . . was crying [and] needed some assistance immediately.” The district court

also received a transcript of C.Z.’s statement to the responding officer, Deputy Rick

Lonetti. C.Z. told Deputy Lonetti that she was at Anderson’s home, but he got upset and

left. She asked Anderson if he was coming back, but he told her to stop texting him.

When he returned, C.Z. asked Anderson if he was coming to sleep in the bedroom.

Anderson entered the bedroom, ripped C.Z.’s phone out of her hand, smashed the phone


                                            2
on a dresser next to C.Z.’s face, pushed her on the bed, screamed at her, and stomped on

her foot. C.Z. stated that she was so scared of Anderson that she wet her pants. Deputy

Lonetti testified that C.Z. was “hysterical,” “crying,” and “very upset” during the

interview.

       But C.Z. testified at trial that on June 19, she and Anderson argued and she “was

really terrible to him.” C.Z. did not recall telling Deputy Lonetti that Anderson ripped

her phone out of her hand and smashed it and claimed that Anderson did not do that.

Initially, she also denied that Anderson pushed her. After the district court gave the

prosecutor permission to treat C.Z. as a hostile witness, she agreed that Anderson pushed

her on the bed, screamed at her, and smashed her phone on the nightstand next to her

face. But she denied that Anderson stomped on her foot. C.Z. stated that she was not

scared of Anderson and called 911 only because she was upset. She also claimed that

D.C. was present on the night of the incident. C.Z. admitted that she did not want to

testify and was there only because she was subpoenaed. C.Z. did not want Anderson to

be convicted because they share a young daughter who would not be able to see him, he

could lose his job, and C.Z. would lose his financial support.

       A transcript of Investigator Phillip Johnson’s in-custody interview with Anderson

was received by the district court. Anderson stated that he and C.Z. had been trying to

get the DANCO dropped. He stated that on the night in question his roommate, D.C.,

was home. Anderson stated that he arrived home at 4:00 p.m. and C.Z. was at his house.

Anderson and C.Z. argued, and he removed himself from the situation. When he returned

home, Anderson decided to sleep on the couch because C.Z. was in the bedroom. C.Z.


                                             3
sent Anderson text messages throughout the night. He initially ignored the messages, but

eventually went into the bedroom and told her to leave. Anderson admitted to taking

C.Z.’s phone, but denied smashing it, claiming that it had been cracked for weeks.

      D.C. testified that on June 19, 2013, he was at work during his normal hours,

which were 7:30 a.m. to 4:00 p.m. D.C. was aware of the DANCO, but could not recall

if there was any time on June 19 when C.Z. and Anderson were alone in the house. D.C.

testified that he heard C.Z. and Anderson arguing on June 19, but he did not hear

anything that indicated he should intervene.

      The district court found Anderson not guilty of felony domestic assault involving

bodily harm, but found him guilty of felony domestic assault involving intent to cause

fear and of violating a DANCO. This appeal follows.

                                    DECISION

Prosecutorial misconduct

      Anderson first argues that the prosecutor committed prejudicial misconduct in her

written closing argument by misstating the evidence. She stated that it was impossible

for D.C. to have been at the residence with C.Z. and Anderson because he logistically

worked too far away to have present during the altercation, but she referred to an

incorrect city of employment.     Anderson did not object to the prosecutor’s closing

argument. This court reviews unobjected-to prosecutorial misconduct under a modified

plain-error standard. State v. Ramey, 721 N.W.2d 294, 302 (Minn. 2006). The appellant

must first establish that the prosecutor committed error that is plain. Id. “A prosecutor

commits misconduct by intentionally misstating evidence,” State v. Mayhorn, 720


                                               4
N.W.2d 776, 788 (Minn. 2006), and by basing a closing argument on facts not in

evidence. State v. Stofflet, 281 N.W.2d 494, 497 (Minn. 1979).

       The prosecutor in this case argued:

              [D.C.] testified that on the date of the assault, he was
              employed by a business located in the city of Wyoming.
              [D.C.] also testified that he worked . . . from 7:30 a.m. to 4:00
              p.m. . . . The City of Wyoming is located approximately 25
              miles from Rush City. Even assuming that [D.C.] left his
              place of employment at exactly 4:00 p.m. and drove directly
              to his home in Rush City, it is not physically possible that
              [D.C.] made it home prior to, or at, 4:00 p.m. on the date of
              the assault. Therefore, based on the statements of [Anderson
              and D.C.], there was at least a short period of time in which
              [Anderson] and [C.Z.] were alone at the Rush City residence.

In her rebuttal, the prosecutor reiterated: “[D.C.] testified that he was working in

Wyoming, 25 miles south of Rush City, from 7:30 a.m. to 4 p.m. . . . [Anderson

stated] . . . that he arrived home at 4 p.m. on the day of the assault and [C.Z.] was already

present in the home.” Finally, the prosecutor stated that “the [c]ourt must recognize that

there is no possible way that [D.C.] was present in the home precisely at 4 p.m. when

[Anderson] returned home.”

       But, contrary to the prosecutor’s argument, D.C. testified that on June 19, 2013, he

was employed elsewhere, and worked his normal hours of 7:30 a.m. to 4:00 p.m. D.C.

did not testify that “he was employed by a business located in the city of Wyoming” or

that he “was working in Wyoming, 25 miles south of Rush City.” The prosecutor thus

committed misconduct when she based her closing argument on facts not in evidence.




                                             5
See id. Anderson established that the prosecutor committed an error that is plain.1 See

Ramey, 721 N.W.2d at 302 (stating that an error is plain if it “contravenes case law, a

rule, or a standard of conduct”); Stofflet, 281 N.W.2d at 497 (“The rule is that a

prosecutor should not base [her] argument on facts not in evidence.”).

       Because Anderson met his burden of showing plain error, the state must show that

the misconduct did not affect Anderson’s substantial rights. See Ramey, 721 N.W.2d at

302; see also State v. Griller, 583 N.W.2d 736, 741 (Minn. 1998) (stating that an error

does not affect substantial rights if it did not affect the outcome of the case). Anderson

asserts that absent the prosecutor’s misstatement, “there is a reasonable likelihood that

the court would have found Anderson not guilty of violating the DANCO because [C.Z.]

and Anderson testified that [D.C.] was home at all relevant times, and there was no other

evidence to contradict this testimony.” The state argues that it is irrelevant where D.C.

works because the record shows that there is some amount of time when Anderson and

C.Z. were together without D.C.2

       Because the district court relied on the prosecutor’s misstatement of the evidence

in concluding that Anderson violated the DANCO, we conclude that Anderson’s

substantial rights were affected. For example, the district court’s findings of fact state

1
  The state concedes that the prosecutor erred and that this court “could find this to be an
error that was plain.”
2
   Anderson’s argument that the prosecutor’s misstatement affected Anderson’s
substantial rights appears limited to the DANCO violation and does not explain how the
misstatement affected Anderson’s substantial rights with respect to the assault charge.
We therefore limit our analysis to the DANCO. See McKenzie v. State, 583 N.W.2d 744,
746 n.1 (Minn. 1998) (applying the rule that arguments not briefed are forfeited in a case
where appellant “allude[d] to” an issue but “fail[ed] to address [it] in the argument
portion of his brief”).

                                             6
that D.C. testified that he lived with Anderson in Rush City and worked on the day of the

incident from 7:30 a.m. to 4:00 p.m. in Wyoming, MN. The court relied on this finding

to conclude that Anderson violated the term of the DANCO that required a third party be

present during contact between Anderson and C.Z.

                     [D.C.] testified that he worked every day that week
              from 7:00 a.m. [sic] to 4:00 p.m. in Wyoming, MN.
              [Anderson] told Investigator Johnson that he arrived home at
              4:00 p.m. on June 19, 2013 and [C.Z.] was already at his
              residence. Thus, [Anderson] and [C.Z.] were unsupervised in
              violation of the DANCO on June 19, 2013 from 4:00 p.m.
              until [D.C.] returned home from work.

       Having concluded that the prosecutorial misconduct affected Anderson’s

substantial rights, we would ordinarily be required to consider the fourth prong of the

plain-error test: “whether a new trial is required to ensure the fairness, integrity, and

public reputation of judicial proceedings.” State v. Watkins, 840 N.W.2d 21, 31 (Minn.

2013). But given our conclusion that the state failed to prove that Anderson knowingly

violated the DANCO, the evidence is insufficient to support the conviction, and it is

unnecessary to address the fourth prong. See State v. Bustos, 861 N.W.2d 655, 662

(Minn. 2015) (concluding it was plain error to restrict defense counsel’s closing

argument, but noting it was unnecessary to address whether the error affected substantial

rights because the combined effect of this error and another error required a new trial).

Sufficiency of the evidence

       Anderson also challenges the sufficiency of the evidence to support his

convictions of domestic assault and violation of a DANCO.              When addressing a

sufficiency-of-the-evidence challenge, this court’s review is limited to determining


                                             7
whether the evidence was sufficient to permit the fact-finder to reach its verdict. State v.

Webb, 440 N.W.2d 426, 430 (Minn. 1989).

       Anderson first argues that the state failed to establish that he “knowingly” violated

the DANCO.3 The elements of the DANCO-violation offense require proof that there

was a DANCO, Anderson knew about the DANCO, and Anderson knowingly violated

the DANCO. Minn. Stat. § 629.75, subd. 2(b), 2(d)(1) (2012). 4

       As a state of mind, knowledge “generally is proved circumstantially, by inference

from words and acts of the actor both before and after the incident.” State v. Johnson,

616 N.W.2d 720, 726 (Minn. 2000). “A conviction based on circumstantial evidence . . .

warrants heightened scrutiny” compared to a conviction based on direct evidence. State

v. Al-Naseer, 788 N.W.2d 469, 473 (Minn. 2010). Because of the heightened scrutiny,

this court examines “whether the circumstances proved are consistent with guilt and

inconsistent with any rational hypothesis except that of guilt.” State v. Silvernail, 831

N.W.2d 594, 599 (Minn. 2013) (quotation omitted). “Circumstantial evidence must form

a complete chain that, as a whole, leads so directly to the guilt of the defendant as to



3
  Anderson’s final claim of error on appeal is that his DANCO-violation conviction
should be reversed and remanded for a new trial because the district court failed to make
findings that Anderson knowingly violated the DANCO statute. See Watkins, 840
N.W.2d at 31 (reversing and remanding for new trial, after considering plain-error test,
where the jury instructions omitted the “knowingly” element). Because we conclude that
the evidence is insufficient to establish the “knowingly” element of the offense, it is
unnecessary to address this issue.
4
  This offense occurred in June 2013, before the Minnesota Legislature amended the
statute to omit the “knowingly” element. 2013 Minn. Laws ch. 47, §§ 5, 6, at 207-208.
Under current law, the state is not required to prove that the offender knowingly violated
a DANCO. Minn. Stat. § 629.75, subd. 2(c), (d) (2014).

                                             8
exclude beyond a reasonable doubt any reasonable inference other than guilt.” State v.

Hanson, 800 N.W.2d 618, 622 (Minn. 2011).

      The circumstances proved show that there was an active DANCO that provided

that Anderson could have contact with C.Z. only in the presence of a third party.

Anderson knew of the order, stating that he and C.Z. were trying to get the DANCO

dropped. C.Z. testified that D.C. was present at the home on the night of the incident.

And D.C. testified that although he was at work until 4:00, he could not recall if there

was any time on June 19 when C.Z. and Anderson were alone at the residence, but he

remembered hearing them argue.5

      The circumstances proved establish the first two elements of the offense—proof

that there was a DANCO and that Anderson knew about the DANCO. See Minn. Stat.

§ 629.75, subd. 2(b). But the district court did not make any findings that Anderson

knowingly violated the DANCO. And the circumstances proved are consistent with

C.Z.’s testimony that D.C. was home at the time, and Anderson’s statement to an

investigator that he did not knowingly violate the DANCO because a third party was

present. We therefore conclude that the evidence is insufficient to sustain Anderson’s

conviction for violating the DANCO.

      Anderson also argues that the evidence was insufficient to sustain his domestic-

assault conviction because of C.Z.’s shifting statements about what happened that night.



5
  Because the prosecutor misstated the evidence regarding the location of D.C.’s work,
we do not consider the district court’s finding that D.C. could not have been home at the
time of the argument.

                                            9
A person is guilty of domestic assault when he “commits an act with intent to cause fear

in another of immediate bodily harm or death.” Minn. Stat. § 609.2242, subd. 1(1)

(2012). Anderson appears to argue that his assault conviction must be reversed because

C.Z. was an unreliable witness, and her testimony was not corroborated. Although C.Z.’s

trial testimony contradicted her statement to the deputy, Anderson ignores the fact that

the district court could consider C.Z.’s out-of-court statements to the deputy and the 911

operator as substantive evidence. See Minn. R. Evid. 803(2) (“A statement relating to a

startling event or condition made while the declarant was under the stress of excitement

caused by the event or condition.”).

       The district court’s findings of fact rely on the 911 operator’s testimony that C.Z.

was very scared, crying, and difficult to understand, as well as the 911 recording in which

C.Z. said that, “he’s never going to stop doing this to me,” and Anderson “smashed [her]

phone.” The district court also relied on Deputy Lonetti’s testimony that C.Z. was

“hysterical and crying,” and C.Z.’s statements to Deputy Lonetti shortly after the incident

that Anderson smashed her phone on the dresser next to her face, pushed her on the bed

while screaming, and that she was scared for herself and her daughter.

       Although C.Z. testified that she was not scared of Anderson and called 911 only

because she was upset, she also admitted that she did not want to testify and only did so

because she was subpoenaed. C.Z. did not want Anderson to go to jail because their

daughter would not be able to see him, he could lose his job, and C.Z. would lose his

financial support. The district court’s findings of fact reflect that it did not rely on C.Z.’s

inconsistent trial testimony in finding Anderson guilty.         See State v. Johnson, 568


                                              10
N.W.2d 426, 436 (Minn. 1997) (stating that the fact-finder is “free to accept part and

reject part of a witness’ testimony”) (quotation omitted). C.Z.’s statements to the deputy

are sufficient to support Anderson’s domestic-assault conviction for committing an act

with intent to cause fear of immediate bodily harm.

      We affirm Anderson’s domestic-assault conviction, but given the prosecutor’s

misconduct in misstating evidence relevant to Anderson’s DANCO-violation conviction,

we conclude that the evidence does not sufficiently support this conviction. We therefore

reverse Anderson’s DANCO-violation conviction.

      Affirmed in part and reversed in part.




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