                           This opinion will be unpublished and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
                                      A14-1658

                                     State of Minnesota,
                                        Respondent,

                                             vs.

                                     Paul Andrew Skog,
                                         Appellant.

                                 Filed September 28, 2015
                                         Affirmed
                                       Reilly, Judge

                                Martin County District Court
                                 File No. 46-CR-13-1131

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

Elizabeth W. Bloomquist, Fairmont City Attorney, Fairmont, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Chang Y. Lau, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

         Considered and decided by Johnson, Presiding Judge; Kirk, Judge; and Reilly,

Judge.

                          UNPUBLISHED OPINION

REILLY, Judge

         Appellant challenges his conviction of misdemeanor theft, arguing that the district

court erred by allowing the state to elicit testimony concerning appellant’s previous

interaction with law enforcement, by allowing the state’s key witness to testify to a legal
conclusion, and that the prosecutor committed misconduct during closing argument. We

affirm.

                                          FACTS

          On November 29, 2013, appellant and his mother Nanci Skog were shopping at a

Wal-Mart store in Fairmont, Minnesota. Ms. Skog was on a motorized scooter and

appellant was pushing a shopping cart beside her. Wal-Mart’s asset protection manager

saw appellant put “handfuls” of merchandise into a backpack, including multiple packs of

Kool-Aid and sausages. Appellant placed the backpack in the front of Ms. Skog’s

motorized cart and concealed it under dark clothing. Ms. Skog passed the last point of

sale without paying for the merchandise. The asset protection manager contacted a law

enforcement officer, who took both appellant and Ms. Skog into custody. The state

subsequently charged appellant with one count of misdemeanor shoplifting in violation of

Minn. Stat. § 609.52, subd. 1a(1), and the case proceeded to a jury trial.1 The jury found

appellant guilty of misdemeanor shoplifting and the district court sentenced him to jail.

This appeal followed.


1
  Section 609.52, subdivision 1, is the definitional section for theft-related offenses, while
subdivision 2(a)(1) provides that a person who “intentionally and without claim of right
takes, uses, transfers, conceals or retains possession of movable property of another
without the other’s consent and with intent to deprive the owner permanently of
possession of the property” is guilty of theft. Appellant does not raise this issue on
appeal. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (declining to consider
matters not argued to and not considered by the district court). And although the state
failed to cite the correct subdivision in the complaint, we have previously recognized that
a defendant is not entitled to reversal where, as here, the complaint made it clear what
crime the state was charging the defendant with and there was “no possibility that
defendant was confused as to the nature of the charges.” State v. DeFoe, 280 N.W.2d 38,
40 (Minn. 1979).

                                              2
                                     DECISION

       Appellant raises four arguments on appeal. First, appellant claims that the district

court abused its discretion by failing to declare a mistrial when a witness testified that

appellant had previous contact with law enforcement officers. Second, appellant claims

that the district court erred by allowing a lay-witness to testify to a legal conclusion.

Third, appellant argues that the prosecutor committed misconduct by making improper

statements during closing argument. Lastly, appellant argues that the cumulative effect

of the errors deprived him of the right to a fair trial. We address each argument in turn.

                                       ANALYSIS

                                             I.

       Appellant argues that the district court erred by denying his motion for a mistrial

following the unintentional elicitation of testimony that appellant had a “history” with

law enforcement.     A mistrial should not be granted unless there is a “reasonable

probability that the outcome of the trial would be different.” State v. Spann, 574 N.W.2d

47, 53 (Minn. 1998). We review a district court’s denial of a mistrial motion for an abuse

of discretion. Id.

       In his initial report, the asset protection manager identified appellant as someone

who “was known to Wal-Mart security as having a history with law enforcement.”

Before the beginning of trial, the defense moved to prohibit any testimony that appellant

“was known . . . as having history with law enforcement,” on the ground that the

statement was vague and implicated prior bad acts. The district court judge asked the

witness if he had personal knowledge of appellant’s prior criminal history. The witness


                                             3
conceded that his statement regarding appellant’s “history with law enforcement” was not

based on his own personal knowledge. The district court stated: “I’m going to instruct

that there not be any comment as to information conveyed to [the asset protection

manager] by the other associate, only that he may say he was alerted to the subject . . .

and leave it at that.” During trial, the following testimony occurred:

              [Prosecutor]: So on November 29th of 2013, did you have
              anything unusual happen around 10:00 o’clock in the
              morning?

              [Asset protection manager]: I was, got alerted by an associate
              in the lawn and garden area about a person known to her as
              having history with law, with law enforcement.

The defense immediately objected and a discussion was held off the record. The district

court did not address the statement with the jury. After the close of the state’s case, the

defense moved for a mistrial. The district court denied the motion given the “totality of

the evidence” in the case.

       Appellant argues that the district court erred by failing to declare a mistrial based

on the witness’s testimony. As a general rule, testimony from which a jury may infer that

a defendant has a prior criminal record is inadmissible. State v. Richmond, 214 N.W.2d

694, 695 (Minn. 1974).       In cases where such evidence is erroneously admitted, a

reviewing court “attach[es] importance to whether the prosecutor intentionally elicited

such testimony.” Id. We reverse “more readily” when the prosecutor intentionally elicits

other-crimes evidence, knowing it is inadmissible. State v. Haglund, 267 N.W.2d 503,

506 (Minn. 1978).     However, even when the prosecutor unintentionally elicits such

testimony, we will reverse if the evidence is prejudicial. Richmond, 214 N.W.2d at 695.


                                             4
       Here, the state did not intentionally elicit testimony regarding appellant’s criminal

history.   The prosecutor asked the asset protection manager if “anything unusual”

happened on the date of the offense, a question which did not appear calculated to prompt

testimony about appellant’s past interaction with law enforcement. Thus, the dispositive

issue for this court is whether the evidence was prejudicial. Richmond, 214 N.W.2d at

695. We determine that it was not.

       The record demonstrates that there was strong evidence of appellant’s guilt. The

asset protection manager testified that he observed appellant put “handfuls” of store

merchandise into a backpack and then conceal the backpack. Given this evidence, the

witness’s single reference to appellant’s “history” with law enforcement did not play a

substantial role in convincing the jury of his guilt. See Richmond, 214 N.W.2d at 695

(determining that unintentional elicitation of past crimes was not prejudicial in light of

other, strong evidence of defendant’s guilt); Haglund, 267 N.W.2d at 506 (affirming

conviction where reference to criminal history was brief and strong evidence of crime

supported conviction).

       The witness was present during the pretrial conference and knew that he was not

supposed to testify regarding appellant’s history with law enforcement. It is troubling

that the witness chose to testify to appellant’s past interactions with law enforcement,

even after the district court instructed him against it. The district court could have

foreclosed the issue by giving a curative instruction to the jury. See, e.g., State v. Miller,

573 N.W.2d 661, 675-76 (Minn. 1998) (affirming denial of mistrial motion where district

court immediately gave curative instruction to jury following witness’s testimony


                                              5
regarding appellant’s prior criminal acts).        Nevertheless, viewed in the light most

favorable to the jury’s verdict, Spann, 574 N.W.2d at 54, the error was not prejudicial and

the district court did not abuse its discretion in denying appellant’s mistrial motion.

                                             II.

       Appellant argues that the district court abused its discretion by allowing the asset

protection manager to testify that he believed appellant committed theft.            A party

challenging an evidentiary ruling bears the burden of establishing that the district court

abused its discretion and that the party was prejudiced thereby. State v. Amos, 658

N.W.2d 201, 203 (Minn. 2003). We review rulings concerning the admissibility of

evidence under an abuse-of-discretion standard. Bernhardt v. State, 684 N.W.2d 465,

474 (Minn. 2004).

       During the state’s direct examination, the prosecutor engaged in the following

exchange with the asset protection manager:

              [Prosecutor]: [A]s a result of your experience as an asset
              protection manager and your observations that day of the two
              people in the Wal-Mart and the entire series of events, what
              was your conclusion with respect to what was happening?

              [Asset protection manager]: That my conclusion was that they
              both acted in the theft. The defendant here now had the
              merchandise, he touched the merchandise, he concealed the
              merchandise. He didn’t leave the store with the concealed
              merchandise but his mother did.

The defense objected to this testimony and the district court overruled the objection. On

appeal, appellant claims that the district court erred in admitting this testimony because it




                                              6
was an “improper legal conclusion” and “infringed upon the jury’s role as the ultimate

fact-finder.”

       The evidence was proper under Rule 701 of the Minnesota Rules of Evidence

governing lay opinion testimony. Generally, a witness may testify as to matters of which

he has personal firsthand knowledge. Minn. R. Evid. 602. In the case of a lay witness:

                the witness’ testimony in the form of opinion or inferences is
                limited to those opinions or inferences which are
                (a) rationally based on the perception of the witness and
                (b) helpful to a clear understanding of the witness’ testimony
                or the determination of a fact in issue.

Minn. R. Evid. 701.

       The key question is whether “the witness personally knows what he or she is

talking about and whether the testimony will be helpful to the jury.” State v. Post, 512

N.W.2d 99, 101 (Minn. 1994). Here, the district court did not abuse its discretion by

allowing the asset protection manager to testify that he believed appellant was stealing

merchandise.      The witness testified as to matters within his personal, firsthand

knowledge—namely, that he personally saw appellant place merchandise into a backpack

and conceal it under dark clothing in his mother’s motorized cart. This testimony was

proper under evidentiary rules 602 and 701 and we conclude that the district court did not

err by admitting the witness’s testimony.

                                             III.

       Appellant argues that the prosecutor committed misconduct by making an

improper remark during closing argument.            The standard of review for claims of

prosecutorial error depends on whether an objection was raised at the time of the alleged


                                              7
error. State v. Yang, 774 N.W.2d 539, 559 (Minn. 2009). The defense objected to the

prosecutor’s statement and we therefore utilize a harmless-error test, “the application of

which varies based on the severity of the misconduct.” State v. Wren, 738 N.W.2d 378,

389 (Minn. 2007). In cases involving “unusually serious prosecutorial misconduct,” we

consider whether it is certain beyond a reasonable doubt that the misconduct was

harmless. State v. Carridine, 812 N.W.2d 130, 150 (Minn. 2012). In cases involving

less-serious prosecutorial misconduct, we ask whether the misconduct “likely played a

substantial part in influencing the jury to convict.” Id. Here, the prosecutor’s conduct is

harmless even under the stricter standard of review.

       At trial, the prosecutor asked the asset protection manager during direct

examination if “shoplifting is a big problem for Wal-Mart.” The witness stated that “it is

. . . [m]illions and millions of dollars each year.”      The witness also testified that

shoplifting could be problematic in the Fairmont, Minnesota, store. The prosecutor stated

during closing argument that appellant and Ms. Skog “were working together to rip off

Wal-Mart. This is called shoplifting and it needs to stop because it’s costing all of us a

lot of money.” Appellant claims that the prosecutor’s closing statement was designed to

inflame the passions and prejudices of the jury and constituted “an unusually serious act

of misconduct on the part of the state.”

       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 “legitimate arguments on the evidence, to analyze and


                                            8
explain the evidence, and to present all proper inferences to be drawn therefrom,” State v.

Smith, 541 N.W.2d 584, 589 (Minn. 1996), 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) (citation omitted). Here,

there was some evidence that shoplifting could be problematic for the Wal-Mart store in

Fairmont, Minnesota.     However, the prosecutor’s statement that appellant’s actions

“need[] to stop because it’s costing all of us a lot of money” is not supported by the

evidence and was designed to inflame the jury’s passion against appellant.              The

prosecutor’s comment was therefore inappropriate.

       However, even though the prosecutor’s statement was inappropriate, we determine

that it is harmless because the comment was a brief statement when the closing argument

is viewed as a whole. 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 also State v. Jackson, 714 N.W.2d 681, 694 (Minn. 2006) (noting that this

court should consider “the closing argument as a whole rather than focus on 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. Smith, 541 N.W.2d at 589. Here, the objectionable comment

totaled one sentence in the closing argument. The prosecutor’s inappropriate statement

does not amount to misconduct entitling appellant to relief when the closing argument is

reviewed as a whole.




                                             9
                                             IV.

       Appellant argues that he is entitled to a new trial because the cumulative effect of

the misconduct deprived him of his right to a fair trial. Because any errors that occurred

were harmless, appellant was not deprived of his right to a fair trial.

       Affirmed.




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