State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A16-0533

State of Minnesota,
Respondent,

vs.

Michael Robert Weldon,
Appellant.

Filed June 12, 2017
Reversed and remanded
Johnson, Judge
Concurring specially, Bjorkman, Judge

Olmsted County District Court
File No. 55-CR-15-3248

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

Mark A. Ostrem, Olmsted County Attorney, James P. Spencer, Assistant County Attorney,
Rochester, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Davi E. Axelson, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Bjorkman, Presiding Judge; Johnson, Judge; and
Randall, Judge.

Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant
to Minn. Const. art. VI, § 10.
2
U N P U B L I S H E D O P I N I O N
JOHNSON, Judge
An Olmsted County jury found Michael Robert Weldon guilty of violating a
domestic-abuse no -contact order. The statute setting forth the offense requires proof
beyond a reasonable doubt that a defendant knew of the existence of the order. The statute
also defines the word “know” to mean that a person “believes that the specified fact exists.”
Weldon argues on appeal that (1) the district court erred by limiting his testimony as to
whether he believed that the domestic-abuse no-contact order was in effect, (2) the district
court erred by declining to instruct the jury on the statutory definition of the word “know,”
and (3) the prosecutor engaged in misconduct by misstating the law in closing argument.
With respect to the first issue, we conclude that the district co urt erred in its evidentiary
ruling, but we also conclude that the error is harmless. With respect to the second and third
issues, we conclude that the district court erred in its jury instructions and that the
prosecutor misstated the law in closing arguments. Therefore, we reverse and remand for
a new trial.
FACTS
Weldon and P.B. have been married since 2004. On February 17, 2015, they had a
physical altercation at their residence. P.B. called the police, who arrested Weldon.
The next day, the stat e charged Weldon with one count of domestic assault, in
violation of Minn. Stat. § 609.2242, subd. 2 (2014). At Weldon’s first appearance on
February 19, 2015, the district court issued a domestic -abuse no-contact order (DANCO)
that prohibited Weldon from contacting P.B.
3
On March 27, 2015, Weldon pleaded guilty to the domestic -assault charge. At the
plea hearing, the district court advised Weldon that the DANCO would remain in effect.
The district court also said to the prosecutor, “ [I]f you hear something differently on that,
that can be addressed in a letter to the Court.”
On May 12, 2015, the district court received a letter that was handwritten by P.B.
The letter was undated and was not addressed to any particular person. In the letter, P.B.
identified herself as Weldon’s wife and wrote: “I would like to request DANCO be lifted—
ASAP! Thank-you—questions please feel free to contact me! . . . Defendant is Michael
Robert Weldon. Please do this ASAP & notify me at above phone #.”
On May 17, 2015, law -enforcement officers received a report of an argument at
Weldon’s and P.B.’s residence. An Olmsted County Deputy Sheriff responded to the
report. Before arriving, the deputy learned that a DANCO prohibited Weldon from having
contact with P.B. After arriving at the residence and speaking with Weldon and P.B., the
deputy arrested Weldon.
The next day, the state charged Weldon with one count of a felony violation of a
DANCO, in violation of Minn. Stat. § 629.75, subd. 2(d)(1) (2014). The state later
amended the complaint to allege three counts of felony violations of a DANCO. Count 1
is based on an allegation that Weldon had contact with P.B. between May 1 and May 11,
2015. Count 2 is based on an allegation that Weldon had contact with P.B. between May 12
and May 16, 2015. Count 3 is based on an allegation that Weldon had contact with P.B.
on May 17, 2015.
4
The three DANCO-violation charges were tried to a jury on three days in November
2015. The parties stipulated that the DANCO existed on the dates that Weldon was alleged
to have contacted P.B. and that Weldon had two or more qualify ing prior offenses, which
enhanced the charges to felonies. The only disputed issue at trial was whether Weldon
knew of the existence of the DANCO at the time of the alleged offenses.
The state called two witnesses: first, the deputy who arrested Weldon on May 17
and, second, P.B. The deputy testified that when he arrived at P.B.’s and Weldon’s
residence on May 17, P.B. told him that Weldon lived in the home. The deputy also
testified that P.B. may have told him that a DANCO prohibited Weldon from havi ng
contact with her.
P.B. testified as follows: Weldon cannot read because of a permanent vision
impairment, so he relies on her to read documents aloud to him. Before Weldon’s first
appearance on the underlying domestic-assault charge, she told a victim advocate that she
wished to maintain contact with Weldon, but Weldon nonetheless moved out after the
district court issued the DANCO. After Weldon’s first appearance on the underlying
domestic-assault charge, she wrote a letter to the county attorney in which she asked that
the DANCO be lifted. She does not remember when she wrote the letter, except that she
sent it approximately two weeks after writing it. She does not recall whether she mailed
the letter or hand-delivered it to the county attorney. After sending the letter, she did not
appear in court and did not have any communication with the district court. In late April
2015, she told Weldon about the letter and “told him that he was welcome to come home.”
5
Weldon returned home approximately two or three weeks before he was arrested on May
17. P.B. suffers from Wernicke’s disease, which impairs her memory.
The state’s evidence included several exhibits, including the DANCO that was
issued by the district court on February 19, an amended DANCO issued by the district
court on March 27, P.B.’s handwritten letter requesting that the DANCO be lifted, and
audio-recordings of the pre-trial hearings on February 19 and March 27.
In the defense case, Weldon testified as follows: He understood that th e district
court had issued a DANCO, and he understood that the DANCO prohibited him from
contacting P.B. Consequently, he did not live with P.B. and had no contact with her after
the district court issued the DANCO. Because of the district court’s comments at the March
27 hearing, he believed that the DANCO could be lifted by making a request to the county
attorney’s office. He typically relies on P.B. to read his written correspondence because
of his vision impairment. On a date he cannot remember, P.B. called him and told him that
she had written a letter and that “it was taken care of, and . . . I could come home.” P.B.
read the letter to him over the telephone. He did not receive any written communication
from the district court saying that the DANCO had been cancelled. He does not remember
when he moved back into the home. He was surprised when he was arrested on May 17
because he believed that the DANCO had been cancelled. Weldon did not call any other
witnesses.
The jury found Weldon guilty on all three counts. The district court pronounced a
sentence of 18 months of imprisonment on count 3, which concerned Weldo n’s contact
with P.B. on May 17, but stayed imposition of the sentence for five years and placed
6
Weldon on probation. The district court dismissed counts 1 and 2 without an adjudication.
Weldon appeals.
D E C I S I O N
Weldon argues that he should receiv e a new trial for three reasons: (1) the district
court erred by excluding some of his testimony as to whether he believed in May 2015 that
the DANCO was in effect, (2) the district court erred by not instructing the jury on the
statutory definition of the word “knows,” and (3) the prosecutor engaged in misconduct by
misstating the law in closing argument.1
Weldon’s three arguments are inter-related. Each argument depends on the meaning
of the statute that sets forth the offense of which he was convicted. The statute provides
that a person commits a crime if he “knows of the existence of a domestic abuse no contact
order issued against the person an d violates the order.” Minn. Stat. § 629.75, subd. 2(b)
(2014). In State v. Watkins, 840 N.W.2d 21 (Minn. 2013), the supreme court interpreted a

1Because the district court pronounced a sentence on count 3 but dismissed counts
1 and 2, we consider Weldon’s arguments only with respect to count 3. In general, a
defendant may pursue a direct appeal “from any adverse final judgment.” Minn. R. Crim.
P. 28.02, subd. 2(1). “A final judgment within the meaning of these rules occurs when the
district court enters a judgment of conviction and imposes or stays a sentence.” Id. “The
record of a judgment of conviction must contain,” among other things, the “sentence.”
Minn. R. Crim. P. 27.03, subd. 8. If a defendant is found guilty of an offense but the district
court has neither imposed a sentence nor stayed imposition of a sentence, the defendant
has not been convicted of that offense and, t hus, does not have a right to pursue a direct
appeal with respect to that offense. See State v. Hoelzel, 639 N.W.2d 605, 609-10 (Minn.
2002) (holding that verdict of guilt, without recorded judgment of conviction, is not final,
appealable judgment); State v. Ashland, 287 N.W.2d 649, 650 (Minn. 1979) (declining to
address sufficiency-of-evidence argument with respect to counts on which defendant was
found guilty but not formally adjudicated or sentenced). Thus, we will not consider
Weldon’s arguments as they relate to counts 1 and 2.
7
prior version of the statute, which provided that, in a felony DANCO-violation prosecution,
the state was required to prove that the defendant knew of the order and knowingly violated
the order. Id. at 25 n.2 (citing Minn. Stat. § 629.75, subd. 2(d) (2012)). The supreme court
concluded that, to knowingly violate a DANCO, a defendant must “perceive directly” that
his contact violates a DANCO and that a defendant’s “reasonable belief that his contact
did not violate the DANCO could negate the mental state of the charged offense. ” Id. at
29. Shortly after Watkins, the legislature amended the statute by deleting the word
“knowingly.” 2013 Minn. Laws 203 ch. 47, § 5, at 207-08. As a result, the state no longer
must prove that a defendant knowingly violated a DANCO. See id. But the state still must
prove that a defendant knew of the existence of a DANCO and violated it. See Minn. Stat.
§ 629.75, subd. 2(b) (2014).
Weldon’s theory at trial was that he did not know of th e existence of the DANCO
because, even though he knew that it had been issued, he believed that it had been cancelled
in some way. In opening statements, his attorney stated, “At the end of the day, this case
[is] about what Mr. Weldon knew, or what he th ought he knew, and why he thought it.”
During the evidentiary phase of the case, Weldon introduced evidence (as described above)
that P.B. told him that she had written a letter to the county attorney to ask that the DANCO
be cancelled and that Weldon believed that her letter caused the DANCO to be cancelled.
In closing argument, Weldon’s trial attorney argued to the jury that Weldon did not know
that the DANCO continued to exist on the date of his arrest because he relied on and trusted
in P.B.’s stateme nts that the DANCO had been cancelled. Meanwhile, the prosecutor
argued to the jury that Weldon’s subjective belief concerning the effectiveness of the
8
DANCO is irrelevant. On appeal, Weldon contends that he was prevented from persuading
the jury that he should be found not guilty on the ground that he believed that the DANCO
no longer was in effect. In response, the state contends that, to prove that Weldon knew of
“the existence of” the DANCO, the state need prove only that Weldon knew that the
DANCO had been issued but need not prove that Weldon knew that the DANCO was valid
or that it still was in effect at the time of the alleged criminal conduct.
The parties’ contentions raise an issue of statutory interpretation. We begin the task
of interpretin g a statute by asking “whether the statute’s language, on its face, is
ambiguous.” American Tower, L.P. v. City of Grant, 636 N.W.2d 309, 312 (Minn. 2001).
A statute is unambiguous if it “is susceptible to only one reasonable interpretation.” Nelson
v. Schlener, 859 N.W.2d 288, 292 (Minn. 2015). If a statute is unambiguous, we “interpret
the words and phrases in the statute according to their plain and ordinary meanings.”
Graves v. Wayman, 859 N.W.2d 791, 798 (Minn. 2015). A statute is ambiguous, however,
if it has “more than one interpretation.” Lietz v. Northern States Power Co. , 718 N.W.2d
865, 870 (Minn. 2006) (quotation omitted). If a statute is ambiguous, we apply “the canons
of statutory construction to determine its meaning.” County of Dakota v. Cameron , 839
N.W.2d 700, 705 (Minn. 2013). We apply a de novo standard of review to a district court’s
interpretation of a statute. Caldas v. Affordable Granite & Stone , Inc., 820 N.W.2d 826,
836 (Minn. 2012).
As stated above, a person may not be convicted of violating a DANCO unless the
person “knows of the existence of a domestic abuse no contact order issued against the
person.” Minn. Stat. § 629.75, subd. 2(b). By definition, a co urt order is “a command or
9
direction” that requires a person to take certain action or refrain from taking certain action.
See Garner’s Dictionary of Legal Usage 640 (3d ed. 2011). If an order has been vacated,
a person who previously was subject to the order no longer is required to take action or
refrain from taking action. In that situation, the order would cease to exist because there
no longer would be an effective command or direction. The interpretation urged by the
state would continue to recognize the existence of an order even after it had been vacated,
apparently because a piece of paper signed by a judge continues to exist. But an order is
in existence, in the sense used in section 629.75, subdivision 2(b), only if the order remains
in effect such that a person is required to comply with the terms of the order. Thus, a
person “knows of the existence of a domestic abuse no contact order,” Minn. Stat. § 629.75,
subd. 2(b), only if the person knows that a DANCO has been issued and knows that it
continues to be in effect at the time of the alleged violation.
I. Evidentiary Ruling
Weldon argues that the district court erred by excluding his testimony concerning
whether be believed that a DANCO was in effect when he had contact with P.B. During
Weldon’s direct examination, his attorney asked, “When you were at [ P.B.]’s, did you
believe—when you had returned home in May of 2015, did you believe there was an active
DANCO?” Weldon answered, “No.” The state objected on the ground of lack of
relevance. The district court sustained the objection and instructed the jury to disregard
Weldon’s answer.
On appeal, Weldon contends that the district court’s ruling on the state’s objection
violated his constitutional right to present a complete defense. Weldon did not present that
10
particular theory to the district court at trial. Nonetheless, a criminal defendant’s due
process right to present a complete defense generally “ yields to the application of an
evidentiary rule unless the rule ‘infringe[s] upon a weighty interest of the accused and [is]
arbitrary or disproportionate to the purposes [the rule is] designed to serve ’” or unless the
rules of evidence “‘serve no legitimate purpose or . . . are disproportionate to the ends that
they are asserted to promote.’” State v. Pass, 832 N.W.2d 836, 841 -42 (Minn. 2013)
(quoting Holmes v. South Carolina , 547 U.S. 319, 324 -26, 126 S. Ct. 1727, 1731-32
(2006)) (alterations in original). Because there is no argument in this case that the district
court applied an evidentiary rule that is arbitrary or disproportionate or serves no legitimate
purpose, we will apply the rules of evidence concerning relevance.
“‘Relevant evidence’ means evidence having any tendency to make the existence of
any fact that is of consequ ence to the determination of the action more probable or less
probable than it would be without the evidence.” Minn. R. Evid. 401. With some
exceptions, “[a]ll relevant evidence is admissible,” and “[e]vidence which is not relevant
is not admissible.” Minn. R. Evid. 402. Furthermore, relevant evidence “may be excluded
if its probative value is substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury, or by considerations of undue delay, waste
of time, or needless presentation of cumulative evidence.” Minn. R. Evid. 403. This court
applies an abuse -of-discretion standard of review to a district court ’s evidentiary ruling
based on relevance. State v. Schulz, 691 N.W.2d 474, 477 (Minn. 2005).
As described above, a person may be found guilty of violating a DANCO if the state
proves that the person “knows of the existence of a [DANCO] issued against the person
11
and violates the order.” Minn. Stat. § 629.75, subd. 2(b). Furthermore, the legislature has
defined the word “know” as follows: “‘Know’ requires only that the actor believes that the
specified fact exists.” Minn. Stat. § 609.02, subd. 9(2) (2014) (emphasis added).
Accordingly, evidence concerning whether Weldon believed that the DANCO was in effect
when he had contact with P.B. is directly relevant to the factual issue that the jury was
asked to determine. Thus, the district court erred by sustaining the state’s relevance
objection to Weldon’s attorney’s question concerning whether Weldon believed that the
DANCO was in effect.
The state does not argue in the alternative that any error would be a harmless error.
See Minn. R. Crim. P. 31.01. This court nonetheless has discretion to conduct a harmless-
error analysis if the error obviously is harmless or if certain factors are present. State v.
Porte, 832 N.W.2d 303, 312-14 (Minn. App. 2013). In the circumstances of this case, the
error obviously is harmless. In other parts of his direct examination, Weldon was allowed
to testify extensively and without objection to his belief that the DANCO had been
cancelled before he had contact with P.B. For example, before the district court sustained
the state’s relevance objection, Weldon’s attorney asked him, “Do you believe the
[DANCO] had been cancelled or lifted somehow?” Weldon responded, “Yes.” Shortly
thereafter, Weldon testified about his belief that the DANCO could be cancelled by writing
a letter to the county attorney and that he believed that the DANCO had been cancelled
because P.B. had told him that she had written such a letter. Later, after the district court
sustained the state’s relevance objection, Weldon’ s attorney asked him about his reaction
when he was arrested on May 17, and Weldon testified that he was surprised because “I
12
didn’t think there was any [DANCO].” Despite the district court’s single erroneous ruling,
it is obvious that Weldon was allowed to give essentially the same testimony at other times
during his direct examination.
Thus, the district court erred by excluding part of Weldon’s testimony as to whether
he believed that the DANCO was in effect, but the error was harmless.
II. Jury Instruction
Weldon argues that the district court erred by denying his request for a jury
instruction that would have explained the charged offense by informing the jury of the
statutory definition of the word “know.” As stated above, the legislature has defined the
word “know” as follows: “‘Know’ requires only that the actor believes that the specified
fact exists.” Minn. Stat. § 609.02, subd. 9(2).
A district court must instruct the jury in a way that “fairly and adequately explain[s]
the law of the case” and does not “materially misstate[] the applicable law.” State v. Koppi,
798 N.W.2d 358, 362 (Minn. 2011). To accomplish those goals, “jury instructions must
define the crime charged and explain the elements of the offense to the jury.” State v.
Vance, 734 N.W.2d 650, 656 (Minn. 2007), overruled on other grounds by State v. Fleck,
810 N.W.2d 303, 311 (Minn. 2012); see also State v. Milton, 821 N.W.2d 789, 806 (Minn.
2012). A jury instruction may inaccurately define the charged offense and inaccuratel y
explain the elements of the offense by omitting a statutory definition. State v. Bustos, 861
N.W.2d 655, 66 2-63 (Minn. 2015). In explaining the elements of an offense, “detailed
definitions of the elements to the crime need not be given . . . if the in structions do not
mislead the jury or allow it to speculate over the meaning of the elements.” Peterson v.
13
State, 282 N.W.2d 878, 881 (Minn. 1979). However, “detailed definitions of an element
of an offense may be necessary if, without the additional det ail, the instructions could
mislead the jury or cause the jury to speculate about what the state must prove to obtain a
guilty verdict.” State v. Moore, 863 N.W.2d 111, 120 (Minn. App. 2015), review denied
(Minn. July 21, 2015). This court applies an abu se-of-discretion standard of review to a
district court’s jury instructions, Koppi, 798 N.W.2d at 361, reviewing them “as a whole to
determine whether [they] accurately state the law in a manner that can be understood by
the jury,” State v. Kelley, 855 N.W.2d 269, 274 (Minn. 2014).
In this case, the district court instructed the jury that the first element of the charged
offense is that “there was an existing Domestic Abuse No -Contact Order.” The district
court further instructed the jury that “[t]he parties have stipulated that there was an existing
Domestic Abuse No-Contact Order” and, thus, the first element “has been proved beyond
a reasonable doubt.” The district court then instructed the jury that the second element of
the offense is that “the Defendant knew of the existence of the order.” The district court’s
instruction concerning the elements of the offense is nearly identical to commonly used
pattern instructions for this offense. See 10 Minn. Dist. Judges’ Ass’n, Minnesota
Practice—Jury Instruction Guides §§ 13.53, .54, at 501, 502-03 (5th ed. 2006).
At the instructions conference, Weldon asked the district court to insert one sentence
after the instruction on the second element to incorporate the statutory definition of the
word “know.” Weldon requested this instruction: “‘To know’ requires only that the actor
believes that the specified fact exists.” See 10 Minn. Dist. Judges’ Ass’n, Minnesota
Practice—Jury Instructions Guides § 7.10, at 124 (5th ed. 2006). The instruction requested
14
by Weldon is virtually identical to the statutory definition. See Minn. Stat. § 609.02,
subd. 9(2). The state opposed the requested instruction. The district court expressed doubt
that a defendant could avoid criminal liability if a jury found that the defendant believed,
but did not know, that a DANCO was not in existence. After extensive discussion with
counsel, the district court declined to include the statutory definition in the instructions on
the ground that the statutory definition would not clarify the second element of the offense.
On appeal, Weldon contends that he should be found not guilty if he were able to
convince a jury that he believed that the order no longer was in existence on May 17, even
if he was not certain that the DANCO no longer was in existence on that date. Weldon
relies on Moore, in which this court concluded that a district court erred by not including a
statutory definition of the word “force” in its instruction s on the elements of third -degree
criminal sexual conduct. 863 N.W.2d at 119 -20. We reached that conclusion for two
reasons. First, the legislature had defined the word within the statute and, thus, had given
the word a specific meaning as a matter of law. Id. at 120. Second, the statutory definition
was significantly different from the common understanding of the word, which might have
caused jurors to find a defendant guilty based on facts that are within the lay definition of
the word but not within the statutory definition of the word. Id. at 120-21. We noted ,
“Such an outcome would be inconsistent with a defendant’s right to ‘a jury determination
that he is guilty of every element of the crime with which he is charged.’” Id. at 121
(quoting State v. Caldwell , 803 N.W.2d 373, 384 (Minn. 2011) (citing Apprendi v. New
Jersey, 530 U.S. 466, 477, 120 S. Ct. 2348, 2356 (2000), and In re Winship, 397 U.S. 358,
364, 90 S. Ct. 1068, 1072 (1970))).
15
The statutory definition of the word “know” that Weldon so ught to include in the
instruction is meaningfully different from the common understanding of the word such
that, without the statutory definition, the instructions might “mislead the jury or allow it to
speculate over the meaning of the elements.” See P eterson, 282 N.W.2d at 881. The
common understanding of the word “know” reflects the concept of certainty. The supreme
court adopted such a definition in Watkins, stating that the word “know” means ‘ “to
perceive directly; grasp in mind with clarity or certainty.’” 840 N.W.2d at 29 (quoting The
American Heritage Dictionary of the English Language 970 (4th ed. 2006)) (emphasis
added). The dictionary cited in Watkins goes further by also defining the word “know” to
mean, “To regard as true beyond doubt.” American Heritage, supra, at 970. Another
leading dictionary also defines the word in a way that incorporates the concept of certainty:
“To perceive or apprehend as true; . . . to have mental certitude in regard to, together with
clear, comprehension of.” Webster’s New International Dictionary 1372 (2d ed. 1946).
Thus, when jurors were asked to decide whether Weldon “knew” of the existence of the
DANCO, the jurors likely understood the instruction to ask whether Weldon knew with
certainty that the DANCO no longer was in existence. That is the question that the
prosecutor suggested to the jury in closing argument.2

2We acknowledge that, in a different case, the state (rather than the defendant) might
prefer that the district court include the statutory definition in the instructions. Such an
instruction might allow the state to argue that, if there was doubt or ambiguity as to whether
a DANCO had been vacated, the jury should find that the defendant nonetheless continued
to believe that a DANCO was in existence ( rather than that the defendant did not believe
that it was not in existence). But that was not the state’s position at trial in this case, and it
is not the state’s position on appeal.
16
In contrast, the word “believe,” which is the operative verb in the statutory definition
of “know,” connotes a degree of unc ertainty. A leading contemporary dictionary defines
“believe” to mean, “To have faith, confidence, or trust,” and “To have confidence in the
truth or value of something.” American Heritage, supra, at 169; see also Webster’s New
International, supra, at 248 (providing similar definitions). Accordingly, if jurors had been
asked to decide whether Weldon believed in the existence of the DANCO, the jurors likely
would have understood the instruction to ask whether Weldon had confidence or trusted
that the DAN CO no longer was in existence. The jury might have decided that Weldon
did not believe that a DANCO existed based on the evidence that he heard the district court
say that the DANCO could be lifted by writing a letter, the evidence that P.B. had told him
that she had written such a letter and that “it was taken care of,” and Weldon’s testimony
that he believed that the DANCO had been cancelled.
The difference between the statutory definition of “know” and the common
definition of the word may be subtle, but it was a meaningful difference in the
circumstances of this case. W hether Weldon knew of the existence of the DANCO was
the sole issue in dispute . Weldon presented evidence that, even though he knew that a
DANCO had been issued, he believed that it h ad been cancelled. The statutory definition
of the word “know” would have supported his theory of the defense. But without an
instruction on the statutory definition, his attorney was unable to fully present the theory
to the jury. Meanwhile, the prosecutor took advantage of the absence of such an instruction
by arguing that Weldon’s belief was not a valid defense. See infra part III.
17
For these reasons, we conclude that the district court erred by denying Weldon’s
request to include the statutory definition of “know” in the jury instructions. The statutory
definition of “know” is law and, furthermore, is meaningfully different from the common
definition of the word. The absence of the statutory definition might have “misl[ed] the
jury or allow[ed] it to speculate over the meaning of the elements.” See Peterson, 282
N.W.2d at 881. The state does not argue in the alternative that any error would be harmless,
and the error does not obviously appear to be harmless, see Porte, 832 N.W.2d at 312-14.
Therefore, Weldon is entitled to a new trial with a properly instructed jury.
III. Closing Argument
Weldon argues that the prosecutor committed misconduct by misstating the law
during closing argument.
The right to due process of law includes the right to a fair trial, and the right to a fair
trial includes the absence of prosecutorial misconduct. Spann v. State , 704 N.W.2d 486,
493 (Minn. 2005); State v. Ferguson , 729 N.W.2d 604, 616 (Minn. App. 2007), review
denied (Minn. June 19, 2007). A prosecutor engages in misconduct if he or she misstates
the applicable law in closing argument. State v. Cao, 788 N.W.2d 710, 715 (Minn. 2010);
State v. Strommen, 648 N.W.2d 681, 689-90 (Minn. 2002).
Weldon concedes that he did not object to the prosecutor’s alleged misstatement of
the law at the time that it occurred. Accordingly, this court must apply a modified plain -
error test. State v. Carr idine, 812 N.W.2d 130, 146 (Minn. 2012). To prevail, Weldon
must esta blish that there was an error and that the error is plain. State v. Ramey , 721
N.W.2d 294, 302 (Minn. 2006). If Weldon can establish a plain error, the burden would
18
shift to the state to show that the plain error did not affect Weldon’s substantial rights. Id.
“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 judicia l proceedings.” State v. Peltier, 874
N.W.2d 792, 804 (Minn. 2016).
In his closing argument, the prosecutor emphasized the state’s position that Weldon
could not escape criminal liability on the ground that he believed that the DANCO was not
in effect when he had contact with P.B. For example, the prosecutor stated to the jury that
Weldon could not defend against the charges by saying , “I thought the DANCO had been
cancelled” because such a belief “simply does not give rise to a defense under these
circumstances in this case.” The prosecutor also stated,
[O]nce the Defendant has been notified of this order, that he
knows of the existence, that he is on notice that this is now the
Defendant’s responsibility. And it’s the Defendant’s
responsibility to ascertain once and for all if this order is in
effect before he has contact with the victim, or he assumes the
risk of the consequences in doing so.

The prosecutor also stated that it would be impractical to prove “what he believed or didn’t
believe” and that the state need only prove that Weldon “knew about the order and violated
it.” These are mer e examples; an incorrect principle of law permeated the prosecutor’s
closing argument.
The first question is whether the prosecutor committed an error by misstating the
applicable law. In Strommen, the prosecutor committed misconduct by misstating the law
of abandonment, which was the defendant’s defense at trial. 648 N.W.2d at 689. This case
is similar in that the prosecutor misstated the law concerning Weldon’s state of mind with
19
respect to the effectiveness of the DANCO. The state contends that t he prosecutor’s
closing argument was consistent with the jury instructions and with the district court’s
comments during the instructions conference. But, as discussed above in part II, the district
court’s jury instructions were erroneous. In any event, the focus of the analysis “is the
fairness of the trial, not the culpability of the prosecutor.” Smith v. Phillips, 455 U.S. 209,
219, 102 S. Ct. 940 , 947 (1982). Thus, we conclude that the prosecutor engaged in
misconduct by misstating the applicable law in his closing argument.
The second question is whether the error is plain. A misstatement of law in closing
argument is plain if the statement cle arly “contravenes case law, a rule, or a standard of
conduct.” Cao, 788 N.W.2d at 715; see also Strommen, 648 N.W.2d at 689. As explained
above, the state must prove that a defendant “knows of the existence” of the DANCO,
Minn. Stat. § 629.75, subd. 2(b), and the word “knows” is defined by statute to mean that
the defendant “ believes that the specified fact exists,” Minn. Stat. § 609.02, subd. 9(2)
(emphasis added). The prosecutor’s closing argument plainly is inconsistent with the
statute setting forth the offense of conviction, which includes a statutory definition of
“know.” Thus, we conclude that the error is plain.
The third question is whether the state has shown that the plain error did not affect
Weldon’s substantial rights. Ramey, 721 N.W.2d at 302. The state does not attempt to
make such a showing. Its responsive brief addresses the first and second requirements of
the modified plain-error test but goes no further. Accordingly the state has not carried its
burden of showing that the plain er ror did not affect Weldon’s substantial rights. See
Ramey, 721 N.W.2d at 302. Furthermore, the prosecutor’s plain error “seriously affect[s]
20
the fairness, integrity, or public reputation of” Weldon’s trial. See Peltier, 874 N.W.2d at
804.
Thus, we must conclude that the prosecutor’s plain error is a reversible error. Thus,
the prosecutor’s plain error in misstating the law in closing argument also requires a new
trial.
Reversed and remanded.

CS-1

BJORKMAN, Judge (concurring specially)
I concur in the result and join in parts I and III of the court’s opinion. I do not join
in part II because I discern no abuse of discretion by the district court. The jury
instructions, when viewed as a whole, “accurately state t he law in a manner that can be
understood by the jury.” State v. Kelley, 855 N.W.2d 269, 274 (Minn. 2014). In my view,
the common understanding of the phrase “to know of” does not so far depart from the
statutory elements of the domestic -abuse no -contact order (DANCO) offense or the
statutory definition of “know” to confuse the jury or alter the state’s burden of proof. But
I agree that the prosecutor’s closing argument misstated the law in a way that affected
Weldon’s substantial rights.
After objecting to Weldon’s testimony and opposing his request that the jury be
instructed on the Minn. Stat. § 609.02, subd. 9(2) (2014) definition of “know” —requiring
only that a person “believes that the specified fact exists” —the prosecutor chose to frame
his closing argument around the notion that Weldon cannot escape criminal responsibility
based on his subjective belief that the DANCO had been cancelled. The state cannot have
it both ways. As noted in part I, to establish a DANCO violation, the state must prove that
the defendant “knows of the existence of a [DANCO]” at the time of the alleged violation.
Whether “know” is construed as a belief, awareness, understanding, or certain knowledge,
the state must prove the defendant was cognizant that the DANCO existed at the time of
the offense. The prosecutor’s contrary argument to the jury constitutes prejudicial plain
error.