                                   STATE OF MINNESOTA

                                    IN SUPREME COURT

                                         A14-1452

Pope County                                                                      Dietzen, J.
                                                                   Took no part, Hudson, J.

State of Minnesota,

                      Respondent,

vs.                                                              Filed: February 10, 2016
                                                                Office of Appellate Courts
Amanda Lea Peltier,

                      Appellant.
                               _______________________

Lori Swanson, Attorney General, Michael T. Everson, Assistant Attorney General, Saint
Paul, Minnesota; and

Neil Nelson, Pope County Attorney, Glenwood, Minnesota, for respondent.

Cathryn Middlebrook, Chief Appellate Public Defender, Rochelle R. Winn, Assistant
Appellate Public Defender, Saint Paul, Minnesota, for appellant.
                             _______________________

                                      SYLLABUS

       1.     The instruction given to the jury describing the elements of first-degree child

abuse murder, Minn. Stat. § 609.185(a)(5) (2014), including malicious punishment of a

child as a type of child abuse, constituted plain error because the instruction failed to

include the elements of malicious punishment of a child under Minn. Stat. § 609.377, subd.

1 (2014). The appellant, however, failed to establish that the erroneous jury instruction

affected her substantial rights.



                                             1
       2.     The district court did not err in admitting expert testimony that commented

on the form of abuse because there was no reasonable likelihood that testimony

significantly affected the verdict.

       3.     The prosecutor made several remarks that were improper, but those remarks

did not affect the defendant’s substantial rights.

       Affirmed.

                                        OPINION

DIETZEN, Justice.

       Appellant Amanda Lea Peltier was found guilty by a Pope County jury of first-

degree murder while committing child abuse, second-degree felony murder, and second-

degree manslaughter, arising out of the death of Eric D. on February 28, 2013. The district

court convicted Peltier of first-degree murder while committing child abuse and imposed

a life sentence with the possibility of supervised release after 30 years. On direct appeal

Peltier argues: (1) the jury instruction omitted essential elements of the charged offense,

denying her a fair trial; (2) the district court abused its discretion in allowing a state expert

to testify that biting a child is a “particularly vicious” form of child abuse; and (3) the

prosecutor engaged in misconduct during closing argument that deprived Peltier of a fair

trial. For the reasons that follow, we affirm the conviction.

       On the evening of February 27, 2013, police responded to a 911 call from Peltier’s

home that her stepson, four-year-old Eric, was unresponsive. Upon arrival, an emergency




                                               2
medical technician immediately administered CPR1 and transported Eric to the local

hospital. The child was intubated with a ventilator to assist his breathing, and a nasogastric

tube was inserted into his stomach to help stabilize him.            Subsequently, Eric was

transported by helicopter to St. Cloud Hospital, where he died after medical efforts to save

his life proved unsuccessful.

       Dr. Michael McGee performed an autopsy on Eric’s body that revealed a series of

four crescent-shaped injuries on Eric’s scalp, as well as swelling of the soft tissue of the

scalp. These injuries were consistent with an adult biting Eric’s head 2 to 3 days prior to

his death. The child’s body had 11 separate bruises on the forehead, including two that

could have been caused by an object striking Eric. Also, his body had a significant injury

to the lips, a hemorrhage on the left ear, and inner-ear injuries to the right ear.

       Dr. McGee concluded that the cause of death was peritonitis, which was the result

of a perforated bowel. Peritonitis occurs when bacteria are released into the abdominal

cavity, producing an inflammatory response. Dr. McGee concluded that the perforation of

the bowel probably occurred within three days before Eric’s death and was the result of

blunt force trauma to Eric’s abdomen.

       Peltier was questioned about the events leading up to Eric’s death by investigators

from the Minnesota Bureau of Criminal Apprehension (BCA) on February 28 and March

5, 2013. She told them that on Tuesday, February 26, after leaving Eric on the couch, she

heard him scream and returned to find his lip bleeding. Peltier said that Eric began



1
       “CPR” is an abbreviation for cardiopulmonary resuscitation.

                                               3
vomiting around 1:30 p.m. that day, and that he continued vomiting all afternoon and into

the evening. Eric also complained of pain in his stomach and back.

       Peltier told the BCA investigators that Eric’s illness persisted into Wednesday,

February 27, and that he started taking “short, quick” breaths at about 7:30 p.m. He also

had a slight fever at that time. Peltier stated that she brought Eric into her bed to keep an

eye on him, that he appeared confused, and that he repeatedly tried to drink out of his “puke

bucket.” Peltier left Eric in the bedroom and went to prepare a place for him to sleep on

the couch. When Peltier returned, Eric was on his back, choking on his own vomit. Peltier

began performing CPR, and Eric’s father, D.D., called 911.

       Following an investigation, the matter was submitted to a grand jury. The grand

jury returned an indictment charging Peltier with murder in the first degree while

committing child abuse, Minn. Stat. § 609.185(a)(5) (2014), and murder in the second

degree while committing malicious punishment of a child, Minn. Stat. §§ 609.19, subd.

2(1) (2014), 609.377, subd. 6 (2014).

       At trial, the State presented extensive testimony in support of its theory that Peltier

caused the death of her stepson, Eric, while committing child abuse. The State introduced

the results of Dr. McGee’s autopsy and the recordings of two interviews of Peltier by state

investigators. During one of the interviews, Peltier admitted to slapping Eric on the mouth

or the side of his head “a good 6 to 10 times” in the 2 days preceding his death.

Additionally, the staff at the daycare that Eric attended from December 2010 through

January 2012 testified that Eric appeared to be physically abused. Also, Dr. James Green,

an orthopedic surgeon, testified that Eric suffered a broken arm while in Peltier’s care.


                                              4
Finally, Peltier’s neighbor, T.C., testified that, on the Saturday following Eric’s death,

Peltier told her that she was going to “go down for” Eric’s death.

       Following trial, a Pope County jury found Peltier guilty of first-degree murder while

committing child abuse, second-degree murder while committing malicious punishment of

a child, and the lesser-included offense of second-degree manslaughter. The district court

imposed a life sentence with eligibility for supervised release after 30 years. This direct

appeal followed.

                                               I.

       Peltier first argues that the district court erred when it instructed the jury on the

definition of first-degree murder while committing child abuse under Minn. Stat.

§ 609.185(a)(5), and that the error denied her a fair trial. Specifically, Peltier contends that

the jury instructions omitted essential elements of the charged offense that allowed the jury

to find her guilty without finding that the State proved all the elements of the crime. The

State responds that Peltier failed to raise this argument below, and therefore it is subject to

plain-error review. Also, the State maintains that the district court did not err because it

properly instructed the jury on all the elements of first-degree child-abuse murder.

       We review a district court’s jury instructions for an abuse of discretion. State v.

Mahkuk, 736 N.W.2d 675, 682 (Minn. 2007). The district court enjoys considerable

latitude in selecting jury instructions, including the specific language of those instructions.

See State v. Kelley, 855 N.W.2d 269, 274 (Minn. 2014). But the jury instructions must

fairly and adequately explain the law of the case and not materially misstate the law. State

v. Carridine, 812 N.W.2d 130, 142 (Minn. 2012); State v. Kuhnau, 622 N.W.2d 552, 556


                                               5
(Minn. 2001). For example, a district court commits plain error if it fails to properly

instruct the jury on all elements of the offense charged. See State v. Vance, 734 N.W.2d

650, 658 (Minn. 2007) (explaining State v. Ihle, 640 N.W.2d 910, 912-17 (Minn. 2002));

Mahkuk, 736 N.W.2d at 682. We review the jury instructions as a whole to determine

whether they fairly and adequately explain the law. Kelley, 855 N.W.2d at 274.

       Peltier was convicted of first-degree murder while committing child abuse. Minn.

Stat. § 609.185(a)(5); Minn. Stat. § 609.377. A person is guilty of this type of first-degree

murder if she:

       causes the death of a minor while committing child abuse, when the
       perpetrator has engaged in a past pattern of child abuse upon a child and
       the death occurs under circumstances manifesting an extreme indifference
       to human life.

Minn. Stat. § 609.185(a)(5). Under this statute, “child abuse” is defined as “an act

committed against a minor victim that constitutes a violation” of any one of twelve

enumerated statutes. Minn. Stat. § 609.185(d) (2014). The district court in this case

instructed the jury that “child abuse” includes first-degree assault, Minn. Stat. § 609.221

(2014); third-degree assault, Minn. Stat. § 609.223 (2014); fifth-degree assault, Minn. Stat.

§ 609.224 (2014); malicious punishment of a child, Minn. Stat. § 609.377; and neglect of

a child, Minn. Stat. § 609.378 (2014). At issue in the present appeal are the district court’s

instructions to the jury with respect to malicious punishment of a child.

       Malicious punishment of a child is defined, in relevant part, as “an intentional act

or a series of intentional acts with respect to a child,” committed by “[a] parent, legal

guardian, or caretaker,” that “evidences unreasonable force or cruel discipline that is



                                              6
excessive under the circumstances.” Minn. Stat. § 609.377, subd. 1. Malicious punishment

is either a gross misdemeanor or a felony, depending upon the offender’s record of prior

offenses, the nature and extent of any injury inflicted, and the age of the child. Id., subds.

2-6. Section 609.377, subdivision 4, provides that malicious punishment is a felony when

“the punishment is to a child under the age of four and causes bodily harm to the head,

eyes, neck, or otherwise causes multiple bruises to the body.” Id., subd. 4.

       The district court’s jury instructions on the elements of first-degree murder while

committing child abuse addressed malicious punishment twice.2 The court first discussed

malicious punishment as part of its instruction on the “child abuse” element. It identified,

and defined, each of the five forms of child abuse that were alleged by the State: first-,

third-, and fifth-degree assault; malicious punishment of a child; and child neglect. With

respect to malicious punishment, the court gave each of the three elements: (1) “parent,

legal guardian, or caretaker”; (2) “intentional act or series of intentional acts with respect

to a child”; and (3) “evidences unreasonable force or cruel discipline that is excessive under

the circumstances.” The court defined the terms “unreasonable force,” “cruelty,” and

“caretaker.” Finally, the court advised the jury that a person is not guilty of malicious

punishment if the person has used “reasonable force” to “restrain or correct” a child.




2
        The district court also set forth the elements of malicious punishment of a child in
its instruction for second-degree murder while committing malicious punishment of a
child.

                                              7
       The court addressed malicious punishment a second time, as part of its instructions

on the “past pattern of child abuse” element. The court’s instructions included the

following relevant language:

       [T]he defendant engaged in a past pattern of child abuse upon [Eric]. A “past
       pattern” consists of prior acts of child abuse which form a reliable sample of
       observable traits or acts which characterize an individual’s behavior. More
       than one prior act of child abuse is required for there to be a past pattern.

       For the purpose of determining a past pattern of child abuse you can consider
       all the crimes described in subparagraphs A-E under element number three
       above, as well as these additional definitions of third degree assault and
       malicious punishment of a child:

       ....

       Malicious punishment can also be committed when the punishment is to a
       child under the age of four and causes bodily harm to the head, eye, neck, or
       otherwise causes multiple bruises to the body of the child.

(Emphasis added.)

       Peltier contends that the italicized language relating to felony malicious punishment

of a child under Minn. Stat. § 609.377, subd. 4, misstated the law because it omitted the

elements of malicious punishment that are set forth in Minn. Stat. § 609.377, subd. 1. The

two factors contained in the instruction—the child’s age and the nature or location of any

injury inflicted—are not themselves elements of the crime; instead they are circumstances

that, when present, will elevate the conduct to a felony offense under Minn. Stat. § 609.377,

subd. 4. Peltier asserts that the omission of the actual offense elements allowed the jury to

find that she committed malicious punishment of a child without finding that her conduct

was intentional, or that her conduct evidenced unreasonable force or cruel discipline that

was excessive under the circumstances.


                                             8
       Initially, we must determine whether Peltier preserved her jury instruction omission

claim for appeal. The record reflects that, while Peltier objected to portions of the court’s

proposed jury instructions, she did so on grounds unrelated to those she raises in this

appeal. Peltier objected to the court’s first-degree-murder instruction as a whole on the

ground that it was “cumbersome, burdensome, and confusing.” She pointed specifically to

the court’s use of the phrase “other serious bodily harm,” in lieu of the phrase “other great

bodily harm,” when defining first-degree assault. Peltier also argued, with respect to the

instruction on malicious punishment of a child, that it would confuse the jury because Eric

was more than 4 years old at the time of his death. Peltier also objected on the ground that

the phrase, “under circumstances that manifested an extreme indifference to human life,”

was vague. The district court overruled all of these objections.

       Because Peltier did not raise the objection in the district court that she now raises

on appeal, her jury instruction omission claim is subject to plain-error analysis. See State

v. Watkins, 840 N.W.2d 21, 27-28 (Minn. 2013) (citing State v. Milton, 821 N.W.2d 789,

808-10 & n.14 (Minn. 2012) (applying plain-error analysis to determine whether a failure

to instruct the jury on the intent element of accomplice liability affected the defendant’s

substantial rights); State v. Baird, 654 N.W.2d 105, 113 (Minn. 2002) (concluding that

plain-error analysis is applicable to unobjected-to erroneous jury instruction)).

       Under plain-error analysis, Peltier is required to establish (1) an error, (2) that is

plain, and (3) that affects her substantial rights. Id. at 28 (citing State v. Griller, 583

N.W.2d 736, 740 (Minn. 1998)). If all three of these requirements are met, we then assess

whether reversal is required to ensure “the fairness, integrity, or public reputation of


                                             9
judicial proceedings.” State v. Scruggs, 822 N.W.2d 631, 642 (Minn. 2012) (citation

omitted) (internal quotation marks omitted); State v. Crowsbreast, 629 N.W.2d 433, 437

(Minn. 2001) (citing Johnson v. United States, 520 U.S. 461, 467 (1997)). An error is

“plain” if it is clear or obvious. State v. Cao, 788 N.W.2d 710, 715 (Minn. 2010).

Typically, a “plain” error contravenes case law, a rule, or a standard of conduct. Id.

       The instruction in this case properly instructed the jury that felony malicious

punishment of a child under Minn. Stat. § 609.377, subd. 4, is a crime that may constitute

a past pattern of child abuse under Minn. Stat. § 609.185(a)(5). But the jury instruction

omitted the offense elements of the crime of malicious punishment of a child: that the

conduct involved “an intentional act or series of intentional acts” that “evidences

unreasonable force or cruel discipline that is excessive under the circumstances.” Minn.

Stat. § 609.377, subd. 1.      Because the jury instruction describing felony malicious

punishment of a child under Minn. Stat. § 609.377, subd. 4 as a type of child abuse omitted

the elements of the offense set forth in Minn. Stat. § 609.377, subd. 1, the instruction was

plainly erroneous.

       We next examine whether Peltier has established that the plain error affected her

substantial rights. See Watkins, 840 N.W.2d at 28 (reaffirming “that the omission of an

element of a crime in a jury instruction does not automatically require a new trial”). “An

error in instructing the jury is prejudicial if there is a reasonable likelihood that giving the

instruction in question had a significant effect on the jury’s verdict.” Id. (quoting State v.

Gomez, 721 N.W.2d 871, 880 (Minn. 2006)).




                                              10
       To determine whether this error affected Peltier’s substantial rights, we look to all

relevant factors including, but not limited to: (1) whether Peltier contested the omitted

elements at trial and submitted evidence to support a contrary finding; (2) whether the State

presented overwhelming evidence to prove those elements; and (3) whether the jury’s

verdict nonetheless encompassed a finding on those elements notwithstanding their

omission from the jury instructions. Watkins, 840 N.W.2d at 29. We will examine these

three factors in turn.

       As to the first factor, Peltier does not contest that her physical abuse of Eric was

intentional and excessive. Indeed, she admitted that she physically abused Eric. Peltier’s

neighbor, T.C., testified that Peltier admitted that she threw Eric into a corner a short time

before his death, and that Peltier “hit him in the face and buttocks,” leaving bruises. Peltier

also admitted that she had bitten Eric on the head. Peltier’s seven-year-old son, J.P.,

testified that he saw Peltier choke, bite, and throw Eric. Peltier also admitted to State

investigators that she slapped Eric on the mouth and the side of his head “a good 6 to 10

times” in the 2 days leading up to his death. Peltier admitted to biting Eric on his head and

face, and that she grabbed Eric by the arm and threw him into the wall. Peltier attempted

to deflect some of the blame to Eric, but not once did Peltier argue to the jury that her acts

were unintentional or reasonable rather than cruel and excessive under the circumstances.

       As to the second factor, the evidence that the physical abuse was intentional and

excessive is overwhelming. In addition to Peltier’s admissions, employees at the daycare

Eric attended from December 2010 until January 2012 testified that Peltier treated Eric

harshly, and did not show him warmth or affection. Peltier frequently complained to them


                                              11
about Eric’s behavior, spoke angrily to him, and sometimes asked daycare staff to make

Eric spend the day by himself at a table if he had misbehaved the previous evening. The

staff noticed that Eric often had bruises, scratches, and bite marks on his body, and that the

number and frequency of these injuries was unusually high compared to other children. In

late October 2011, Eric arrived at daycare with multiple bite marks on his cheek and ear.

He also had bruises and scratches on his body. In mid-November 2011, Eric had a large

bump on his head, surrounded by puncture wounds. When asked about the injury, Eric

responded first by blaming his brother, but later said that Peltier was responsible. A

daycare provider subsequently filed a report with child protection.

       Dr. James Green, an orthopedic surgeon, testified that he had previously treated Eric

for a broken arm. Dr. Green determined that Eric had a spiral fracture of his right humerus

and noted a developing black eye. Because spiral fractures are rare in young children and

often indicate abuse, the injury was reported to child protection. A witness from Pope

County Social Services, K.L.T., who investigated Eric’s broken arm, testified that Peltier

told her Eric sustained the injury after falling down the stairs. After consulting with a

different doctor, K.L.T. decided not to pursue the matter.

       Peltier subsequently removed Eric from the daycare provider and placed him in

C.M.’s in-home daycare. C.M. testified she noticed bruising and bite marks on Eric within

days of his placement with her. M.D., who provided special education services to Eric at

the daycare, testified Eric told her the bite marks on his face were self-inflicted. M.D. took

photos of the marks and filed a report with child protection in January 2012.




                                             12
       K.L.T. testified that she met with Eric twice in 2012, and that his demeanor changed

between the meetings. At the first meeting, Eric was interactive, but at the second visit,

Eric was withdrawn, would not make eye contact, and “looked very sad.” When asked by

K.L.T., Peltier denied that she physically disciplined her children.          Instead, Peltier

suggested that Eric had vision problems that made him clumsy and that he bruised easily.

During a subsequent examination, doctors determined that Eric had no major vision

problems and that there was nothing abnormal about his propensity to bruise.

       Taken together, this evidence overwhelmingly demonstrates that Peltier engaged in

a pattern of malicious punishment of Eric prior to his death. Contrary to Peltier’s assertions

on appeal, the conduct on display here does not present a close call.

       As to the third factor in the Watkins prejudice analysis, we agree with Peltier that

the jury’s verdict did not otherwise encompass a finding that the abuse was intentional and

excessive under the circumstances.3 See Minn. Stat. § 609.377, subd. 1. Thus, this factor

favors Peltier.

       The Watkins factors are not exclusive, do not comprise a rigid test, and it does not

necessarily follow that each must be satisfied. See 840 N.W.2d at 29. We observe that this

is not a case in which the jury was never instructed on the essential elements of malicious

punishment of a child. In fact, as discussed above, the district court’s instructions on “child



3
       The jury’s verdict on count two, second-degree murder while committing malicious
punishment of a child, reflects the jury’s conclusion that Peltier committed malicious
punishment of a child when she killed Eric. However, the jury’s determination that Peltier
engaged in malicious punishment of a child on this one occasion is insufficient to find a
past pattern of child abuse under Minn. Stat. § 609.185(a)(5).

                                              13
abuse” included all of the statutory elements of malicious punishment of a child, as did its

instruction on second-degree murder while committing malicious punishment of a child.

While these portions of the instructions were not sufficient to cure the court’s error, they

do inform our conclusion as to the nature and extent of any prejudice.

       We conclude the instruction given to the jury describing the elements of first-degree

child abuse murder, Minn. Stat. § 609.185(a)(5), including malicious punishment of a child

as a type of child abuse, constituted plain error because the instruction failed to include the

elements of malicious punishment of a child under Minn. Stat. § 609.377, subd. 1. The

appellant, however, failed to establish that the erroneous jury instruction affected her

substantial rights. While it is true in this case that the jury’s verdict did not otherwise

encompass a finding on the omitted elements, that factor is greatly outweighed by Peltier’s

failure to contest the omitted elements of malicious punishment of a child and the State’s

presentation of overwhelming evidence to prove those elements.

                                              II.

       Peltier next argues the district court abused its discretion in permitting Dr. Mark

Hudson, a pediatrician specializing in child abuse at Children’s Hospital and Clinics of

Minnesota, to offer his expert opinion that biting constitutes a “particularly vicious” form

of child abuse. She contends the testimony should have been excluded because it was of

low probative value, inflammatory, and not helpful to the jury.

       We review the district court’s evidentiary rulings for an abuse of discretion.

Mahkuk, 736 N.W.2d at 686. Peltier bears the burden of demonstrating both that the district

court abused its discretion in admitting the evidence at issue here, and that she was


                                              14
prejudiced by its admission. State v. Sanders, 775 N.W.2d 883, 887 (Minn. 2009). Peltier

made a timely objection to Dr. Hudson’s testimony, and therefore the harmless-error

standard applies. Id. Under the harmless-error standard, an appellant who alleges an error

in the admission of evidence that does not implicate a constitutional right must prove that

there is “a reasonable possibility that the wrongfully admitted evidence significantly

affected the verdict.” State v. Matthews, 800 N.W.2d 629, 633 (Minn. 2011) (citation

omitted) (internal quotation marks omitted). We look to the following factors when

determining whether testimony significantly affected a verdict: (1) the manner in which

the State presented the testimony; (2) whether the testimony was highly persuasive;

(3) whether the State used the testimony in closing argument; and (4) whether the defense

effectively countered the testimony. Id. at 634.

       An expert witness is permitted to testify in the form of an opinion when: (1) the

testimony will assist the factfinder; (2) the witness is qualified to provide expert testimony

because of his knowledge, skill, experience, training, or education; and (3) the expert’s

opinion has foundational reliability. Minn. R. Evid. 702; Doe v. Archdiocese of St. Paul,

817 N.W.2d 150, 164-65 (Minn. 2012). Opinion testimony is not objectionable merely

because it embraces an ultimate issue to be decided by the jury. Minn. R. Evid. 704. In

exercising its discretion, the district court must examine whether the expert is qualified to

express an opinion, and whether the opinion “will assist the trier of fact to understand the

evidence or to determine a fact in issue.” Minn. R. Evid. 702. “Expert testimony may be

excluded if its probative value is substantially outweighed by the danger of unfair




                                             15
prejudice, confusion, or misleading the jury.” State v. Sontoya, 788 N.W.2d 868, 872-73

(Minn. 2010).

      The relevant portion of Dr. Hudson’s testimony was as follows:

      PROSECUTOR: Is an adult biting a child a common or uncommon form of
          child abuse?

      THE WITNESS: Uncommon. I’ve been doing full time child abuse
          evaluations for the last 10 plus years and I’ve probably evaluated only
          a handful of children who -- where they are abusively bitten,
          repeatedly bitten.

      PROSECUTOR: What would that suggest to you when an adult bites a child?

      DEFENSE COUNSEL: Objection, speculation.

      THE COURT: Overruled.

      THE WITNESS: I think that adults biting children is very unusual,
          particularly in my opinion particularly vicious.

      DEFENSE COUNSEL: Objection, argumentative.

      THE COURT: Overruled.

      THE WITNESS: I think it’s not typical of what happens when people get
           frustrated and slap a child or spank a child which is a more common
           form of inflicting injury on children, and so I think it’s -- it speaks to
           a very unusual and maybe even cruel form of child abuse.

      DEFENSE COUNSEL: Your Honor, I’m going to object to that. That’s
          inflammatory and it is argumentative.

      THE COURT: I’ll sustain the objection. The jury should disregard the last
           comment.

      Whether the district court erred in admitting the “particularly vicious” statement is

a close call. Assuming without deciding that the district court abused its discretion in

admitting this testimony, we conclude that there is no reasonable likelihood that the


                                            16
objected-to testimony significantly affected the verdict in this case. While the first short

statement was admitted into evidence, the court sustained an objection to the more

substantive testimony that followed. That testimony described how biting a child is

different from more “typical” acts of abuse that occur when a parent or caretaker lashes out

in frustration. Further, the “particularly vicious” statement occupies just three lines in the

transcript, while Dr. Hudson’s full testimony runs to 69 pages. In addition, Dr. Hudson

was only one of several witnesses who testified as experts for the State. The State did not

mention the contested testimony in its closing argument. And, while the defense had ample

opportunity to attack the disputed testimony, both on cross-examination and during closing

argument, it declined to do so. Lastly, the prejudicial effect of this testimony was no doubt

blunted because Dr. Hudson was only stating the obvious. See State v. Bowers, 482

N.W.2d 774, 778 (Minn. 1992) (stating that medical examiner’s testimony that the depth

of the victim’s stab wound indicated that the stabbing was an intentional act “was only

stating the obvious,” given that the knife blade was shorter than the wound was long).

These factors, taken together, lead us to conclude that there was no reasonable likelihood

that the objected-to testimony significantly affected the verdict in this case.

                                             III.

        Peltier next argues the prosecutor engaged in unobjected-to misconduct during

closing argument by (1) disparaging the defense, (2) arguing facts not in evidence, and

(3) misstating the law. According to Peltier, the prosecutor’s alleged misconduct deprived

her of a fair trial.




                                             17
       Because Peltier did not object to the prosecutor’s remarks during closing argument,

we review the alleged prosecutorial misconduct under the modified plain-error test. See

State v. Ramey, 721 N.W.2d 294, 299-300 (Minn. 2006). “Under that test, the defendant

has the burden to demonstrate that the misconduct constitutes (1) error, (2) that is plain.”

State v. Matthews, 779 N.W.2d 543, 551 (Minn. 2010). If plain error is established, the

burden then shifts to the State to demonstrate that the error did not affect the defendant’s

substantial rights. Matthews, 779 N.W.2d at 551; Ramey, 721 N.W.2d at 300, 302. To

meet the third prong, the State must show that there is “no reasonable likelihood that the

absence of the misconduct in question would have had a significant effect on the verdict.”

Ramey, 721 N.W.2d at 302 (citations omitted). If all three prongs of the test are met, “we

may correct the error only if it ‘seriously affect[s] the fairness, integrity, or public

reputation of judicial proceedings.’ ” Crowsbreast, 629 N.W.2d at 437 (quoting Johnson,

520 U.S. at 467).

                                             A.

       Peltier first claims the prosecutor disparaged her right to a jury trial. It is well-

settled that the State has the right to vigorously argue its case. State v. MacLennan, 702

N.W.2d 219, 236 (Minn. 2005). But a prosecutor is not permitted to disparage the defense

in closing argument. See State v. McDaniel, 777 N.W.2d 739, 752 (Minn. 2010). The

State may argue that there is no merit in a particular defense, but it may not belittle that

defense either in the abstract or by suggesting that the defendant raised the defense because

it was the only one with any hope for success. MacLennan, 702 N.W.2d at 236.




                                             18
       The prosecutor argued in closing:

       [T]he defendant has an absolute right to have the State prove its case by proof
       beyond a reasonable doubt to you because anything can happen during a trial.
       Witnesses may become unavailable. Evidence may not be admitted.
       Witnesses may not remember and recollect. You know, we had witnesses
       from out-of-state, maybe they wouldn’t come. But none of that happened in
       this case, and you did hear all the evidence, and you’re never going to have
       all the evidence, all the facts, because we don’t have video cameras inside
       people’s houses so you have to depend on the statements of witnesses.

       The federal and state constitutions and our adversarial process protect the right of

the accused to contest the evidence presented by the government. See Washington v. Texas,

388 U.S. 14, 19 (1967). Indeed, the right to confront and cross-examine the government’s

witnesses is a “fundamental right” that allows a defendant to clarify or correct the

testimony of the State’s witnesses. Pointer v. Texas, 380 U.S. 400, 403 (1965).

       We conclude that the prosecutor’s remarks mischaracterized the reason for a trial.

Implicit in the prosecutor’s remarks is the suggestion that the only reason Peltier exercised

her right to a trial was because she hoped some unforeseen circumstance might upset the

State’s case, or that the only way Peltier could be found not guilty would be if the State

made a mistake. The comments further imply that Peltier only exercised her right to trial

in a desperate attempt to “roll the dice,” rather than to robustly confront the State’s

allegations with a meritorious defense. These statements were untrue and disparaging, and

constituted misconduct.




                                             19
                                             B.

         Peltier next contends the prosecutor argued facts not in evidence: (1) that Peltier

learned the abusive behavior from an ex-boyfriend, and (2) that Peltier exhibited a trait

common to child abusers when she engaged in victim-blaming.

         “[T]he State may present all legitimate arguments on the evidence and all proper

inferences that can be drawn from that evidence in its closing argument.” State v. Munt,

831 N.W.2d 569, 587 (Minn. 2013) (quoting State v. Pearson, 775 N.W.2d 155, 163 (Minn.

2009)). However, a lawyer may not speculate without a factual basis. Pearson, 775

N.W.2d at 163. “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) (quoting State v. Salitros, 499 N.W.2d 815, 820 (Minn.

1993).

         The arguments that Peltier learned abusive behavior from a past romantic partner

and that she engaged in behavior common to child abusers are troubling. These claims

have no basis in the record. It is true that evidence at trial suggested that Peltier and her

children suffered abuse at the hands of her former partner, but no evidence was presented

to show that domestic abuse is learned and passed on between adults. Similarly, the

evidence is clear that Peltier publicly blamed Eric for his own injuries, but there is no

indication that she did so because she felt a need to justify her actions or that this is a

behavior common to child abusers.         Because these inferences go to psychological

hypotheses and are not adequately supported by either the facts in evidence or expert

testimony, we conclude that they were improper in this case.


                                             20
                                             C.

       Finally, Peltier alleges that the prosecutor misstated the law by arguing that a past

pattern of child abuse can include past child abuse committed by Peltier against another

child, J.P.

       Minn. Stat. § 609.185(a)(5) provides that a person is guilty of first-degree murder if

the person “causes the death of a minor while committing child abuse when the perpetrator

has engaged in a past pattern of child abuse upon a child and the death occurs under

circumstances manifesting an extreme indifference to human life.”           The Legislature

amended the past-pattern language in the statute in 2005 from “a past pattern of child abuse

upon the child” to “a past pattern of child abuse upon a child.” Act of June 2, 2005, ch.

136, art. 17, § 10, 2005 Minn. Laws 901, 1127-28 (emphasis added); Minn. Stat.

§ 609.185(a)(5) (emphasis added). This amendment aligns the child abuse provision of the

first-degree murder statute with the domestic-abuse provision of the same statute, which

allows for a pattern of domestic abuse to be found in instances in which “the perpetrator

has engaged in a past pattern of domestic abuse upon the victim or upon another family or

household member.” Minn. Stat. § 609.185(a)(6) (2014) (emphasis added). Because the

statutory definitions of first-degree child-abuse murder and first-degree domestic-abuse

murder have nearly identical language, we interpret the provisions in a similar fashion. See

State v. Johnson, 773 N.W.2d 81, 86 (Minn. 2009). In State v. Hayes, we affirmed a

conviction under the first-degree domestic-abuse murder provision that allows patterns of

abuse against two different persons to be used as past-pattern evidence. 831 N.W.2d 546,

554-55 (Minn. 2013).


                                             21
       We conclude that the Legislature’s amendment to Minn. Stat. § 609.185(a)(5)

extended the reach of the statute to a perpetrator who has engaged in a past pattern of child

abuse upon any child. Consequently, evidence of abuse against children other than the

victim is admissible as past-pattern evidence. The prosecutor, therefore, did not misstate

the law.

                                             D.

       We next examine whether the misconduct of disparaging the defense and arguing

facts not in evidence affected Peltier’s substantial rights. To answer this question, we

consider: (1) the strength of the evidence against Peltier; (2) the pervasiveness of the

erroneous conduct; and (3) whether Peltier had an opportunity to rebut any improper

remarks. State v. Davis, 735 N.W.2d 674, 682 (Minn. 2007).

       We conclude that the prosecutor’s improper remarks did not affect Peltier’s

substantial rights for three reasons. First, the evidence in support of the conviction is

overwhelming.     Second, the incidents of alleged misconduct were isolated, together

comprising approximately one page of a 39-page closing argument. The prosecutor did

not unduly emphasize, or repeat, any of these points, and none of them was central to the

State’s case. Finally, Peltier had ample opportunity to rebut the prosecutor’s erroneous

statements in her closing argument, even if she declined to do so. Thus, we conclude that

the prosecutorial misconduct here did not affect Peltier’s substantial rights.

                                             IV.

       For the foregoing reasons, we affirm Peltier’s conviction for first-degree murder

while committing child abuse.


                                             22
       Affirmed.


       HUDSON, J., not having been a member of this court at the time of submission,

took no part in the consideration or decision of this case.




                                             23
