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This opinion will be unpublished and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
A16-0747

State of Minnesota,
Respondent,

vs.

Desmond Lamart Jones,
Appellant.

Filed April 3, 2017
Affirmed
Schellhas, Judge

Stearns County District Court
File No. 73-CR-15-5787

Lori Swanson, Attorney General, Karen B. McGillic, Assistant Attorney General, St. Paul,
Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Stan Keillor, Special Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Kirk, Presiding Judge; Schellhas, Judge; and Bratvold,
Judge.
U N P U B L I S H E D O P I N I O N
SCHELLHAS, Judge
Appellant challenges his conviction of first- degree arson, arguing that (1) the district
court violated his right of self-represent ation and erroneously admitted relationship

2
evidence, (2) the prosecutor committed misconduct, and (3) the evidence is insufficient to
support his conviction. We affirm.
FACTS
In June of 2015, appellant Desmond Lamart Jones frequently stayed at the St. Cloud
townhome of his girlfriend, V.W., who resided with her four children; her adult brother,
S.W.; and an uncle of V.W. and S.W. About June 22, V.W. ended her relationship with
Jones. Jones left V.W.’s townhome at her re quest but frequently ca lled and texted V.W.,
telling her that he did not want to end the relationship, asking her to return his belongings,
and seeking a place to stay temporarily. V.W. drove Jones to a storage garage in which to
put his belongings. During the drive, Jones sn atched the ignition key, jumped out of the
vehicle, and ran away (the key incident). The next morning, S.W. found a Snickers candy
bar stuffed into the fuel-filler neck of V.W.’s vehicle (the Snickers-bar incident). As a result
of these incidents, V.W. took her children to stay at her mother’s house on the evening of
June 24.
V.W. had a male guest in her townhome the evening of June 24, 2015, until shortly
after midnight and then went to her mother’s house. Around that time, Jones called and
texted V.W., implying with hostility that she was having sex with her house guest. About
1:36 a.m. on June 25, S.W. was awoken by a “whoosh” sound, looked out a window, and
discovered that the exterior of the townhome was aflame. S.W. exited the townhome and
saw a person, whom he believe d to be Jones, running away from the townhome. The fire
damaged the townhome’s siding and back door, and police determined that the fire had
been caused by arson. They arrested Jones later that day.

3
Respondent State of Minnesot a charged Jones with firs t-degree arson (dwelling).
On June 29, 2015, at a combined first appe arance on the arson charge and a violation-of-
release-conditions hearing in connection with an unrelated pending criminal case, Jones
stated that he wanted to fire his public de fender and represent himself. The district court
told Jones, “I’m not going to allow you to do that here toda y,” and Jones continued to be
represented by a public defender at all relevant times.
In November 2015, the state noticed its intent to introduce unspecified “evidence of
the relationship of [V.W.] and [Jones],” claiming admissi bility under Minn. R. Evid.
404(b), Minn. Stat. § 634.20 (2014), or “any other exception to the general exclusionary
rule.” The state subsequently supplemented its notice to includ e the introduction of
“evidence of the relationship of [V.W.] and [J ones],” specifically, that “approximately a
little over a month prior to the [a rson], [Jones] held a knife to V.W. because her brothers
called him a b-tch” (the knife incident). On D ecember 15, before the start of Jones’s jury
trial, the district court ruled that “some” evid ence “to get the context of the relationship”
was admissible but prohibited the state from introducing evidence of the knife incident.
During a three-day trial, the jury heard testimony from 11 prosecution witnesses and
considered more than 20 exhi bits, including surveillance video of Jones purchasing an
accelerant just before the fire occurred, audio recordings of Jones’s voicemail messages to
V.W., a covert recording of a call by V.W. to Jones, and a recording of V.W.’s 911 call. In
some of the exhibits, V.W. referenced the key incident, the Snickers-bar incident, and the
knife incident. V.W. also testified about the key incident, the Snickers-bar incident, and,
despite the district court’s ruling, the kn ife incident; twice mentioned Jones’s prior

4
incarceration; and three times expressed her personal belief that Jones had committed the
arson. S.W. testified and identified Jones as the person whom he saw running away from
the scene of the fire and briefly mentioned the key incident. The prosecutor referenced the
key incident in her opening statement. Jone s did not request, and th e court did not give,
any cautionary instruction on relationship evidence.
The jury found Jones guilty as charged, and the district court sentenced him to 132
months’ imprisonment. This appeal follows.
D E C I S I O N
I.
Jones first argues that the district court violated his right to represent himself when
it denied his June 29, 2015 request to discharge his public defender and represent himself.
We read this argument to include Jones’s claim that the district court violated his right to
represent himself at his first appearance and at every subsequent stage of the criminal
process, including trial. A criminal defenda nt has a Sixth Amendment right to represent
himself in state court. State v. Rhoads, 813 N.W.2d 880, 885 (Minn. 2012) (citing Faretta
v. California , 422 U.S. 806, 819, 95 S. Ct. 2525, 2533 (1975)). The defendant’s first
appearance is a critical stage in the criminal process. Rothgery v. Gillespie Cty., Tex., 554
U.S. 191, 212–13, 128 S. Ct. 2578, 2591–92 (2008). We assume without deciding that the
defendant’s right of self-representation applies at all critical stages of the criminal process.
See Marshall v. Rodgers, 133 S. Ct. 1446, 1449 (2013) (“It is beyond dispute that the Sixth
Amendment safeguards . . . the right to counsel at all critical stag es of the criminal
process.” (quotation omitted)); United States v. Conklin, 835 F.3d 800, 804 (8th Cir. 2016)

5
(describing right of self-representation as “alternative” to right to counsel); State v.
Camacho, 561 N.W.2d 160, 170 (Minn. 1997) (des cribing right of self-representation as
“reciprocal[]” to right to counsel).
The right of self-representation is not abso lute; a district court may refuse a request
for self-representation under some circumstances. State v. Blom , 682 N.W.2d 578, 613
(Minn. 2004). “When a criminal defendant asks to represent himself, the court must
determine (1) whether the request is clear, unequivocal, and timely, and (2) whether the
defendant knowingly and intelligently waives his right to counsel.” Id. (quotation omitted).
The court bears “the responsibility to clarify and address a defendant’s request to discharge
counsel.” State v. Paige, 765 N.W.2d 134, 139 (Minn. App. 2009). And the court cannot
deny a request for self-representation solely because the defendant is unable to be an
effective legal advocate. See State v. Richards , 456 N.W.2d 260, 2 64–65 (Minn. 1990)
(stating that a defendant’s inability to “con duct his own defense” does not invalidate his
knowing and intelligent waiver of the right to counsel). We review a refusal of a self-
representation request for clear error, and a clea rly erroneous refusal is a violation of the
right of self-representation. Blom, 682 N.W.2d at 613.
Denial of a defendant’s right to represent himself at trial is a structural error that
results in automatic reversal. Colbert v. State, 870 N.W.2d 616, 624 (Minn. 2015) (citing
McKaskle v. Wiggins, 465 U.S. 168, 177 n.8, 104 S. Ct . 944, 950 n.8 (1984)). But denial
of the defendant’s right to represent himself at another stage of the criminal process is not
a structural error unless it unde rmines the fairness of the criminal proceeding as a whole.
See Arizona v. Fulminante, 499 U.S. 279, 309–10, 111 S. Ct. 1246, 1265 (1991) (describing

6
structural error as “structural defects in the constitution of the trial mechanism” that affect
“[t]he entire conduct of the trial from beginning to end” and identifying as structural error
denial of “the right to self-representation at trial” (emphasis added) (citing McKaskle, 465
U.S. at 177–78 & n.8, 104 S. Ct. at 950–51 & n.8)).
Here, at Jones’s first appearance on June 29, 2015, the district court confirmed that
Jones had read and understood the “Fel ony/Gross Misdemeanor First Appearance
Statement of Rights” and noted that Jones had applied for a p ublic defender and that the
public defender standing next to him was his attorney. The prosecutor requested a
domestic-abuse no-contact order (DANCO) in connection with the arson charge and
alleged that Jones had violated his conditions of release in the unrelated pending criminal
case by drinking alcohol at a bar on the night of the fire. Jones then interjected, asking
about the prosecutor’s statem ents regarding a DANCO and why he was “being charged
with an OFP” when he “did not have an OFP. ” The prosecutor clarified that the state was
not charging Jones with a DANCO violation, and Jones again interjected with a question,
told the district court that he did not understand what hi s public defender was doing, and
said, “He’s just standing here.” The following colloquy between the court and Jones then
occurred:
THE COURT: That’s what he’s supposed to do.
JONES: Well, then I’m firing him. I want to represent myself
pro se. Get out of here.
THE COURT: No. Sir, I’m not going to allow you to do that
here today.
JONES: How come I can’t? It’s my right.
THE COURT: Because we’re not here to argue all those issues.
Those are later on. We’re he re only to address release
conditions. And I would advise you not to say anything

7
because anything you say can be used against you. I understand
you’re confused, you don’t underst and the process, but this is
just how it goes.

The hearing then continued and Jones’s public defender informed the district court
that Jones would be unable to post any bail, asked for an omnibus hearing, and made a
speedy-trial demand. The prosecutor proceeded with a bail argument, alleging that Jones
was “in violation of his conditions of release because he didn’t sign up for the [electronic
home monitoring] alcohol sensitive.” Jones interjected:
JONES: I suffer from a [traumatic brain injury].
THE COURT: The Court will set bail—
JONES: It doesn’t matter. I can’t make it. She can set it at a
billion dollars.

The court set bail and conditions, and Jones once more interjected:
JONES: I have one question. She said I didn’t set up the
monitoring thing when I did.
THE PUBLIC DEFENDER: You’ll have your opportunity to
dispute all that.

The hearing concluded without further interjection by Jones.
The record reflects that the district cour t flatly denied Jones’s self-representation
request without any analysis. In so doing, the court erred, denying Jones his Sixth
Amendment right to represent himself at his first appearance on J une 29, 2015. But the
district court’s error was harmless beyond a reasonable doubt. See Davis v. Ayala, 135 S.
Ct. 2187, 2197, reh’g denied, 136 S. Ct. 14 (2015) (“Before a federal constitutional error
can be held harmless, the court must be able to declare a belief that it was harmless beyond
a reasonable doubt.” (quotati on omitted)). Jones’s public de fender preserved Jones’s
omnibus issues, asserted his speedy-trial right, and did nothing that compromised Jones’s

8
position at any subsequent stage of the criminal process. Because the denial of Jones’s right
to represent himself at the June 29, 2015 hearing was harmless beyond a reasonable doubt,
we conclude that reversal of Jones’s conviction is not warranted on that ground.
And the denial of Jones’s ri ght to represent himself at the June 29, 2015 hearing did
not deny him his right to represent himself at any subsequent stage of the criminal process.
On June 29, the attorney who represented Jones was only standing in for Jones’s attorney,
whom the district court had appointed to repr esent him in the unrela ted pending criminal
case and who represented Jones at every subs equent stage of the arson case. At no time
subsequent to the June 29 hearing did Jones seek to dismiss his attorney and represent
himself. Indeed, at his July 27, 2015 omnibus hearing, when Jones’s attorney informed the
court that Jones wanted him to file “som e motions” and to wit hdraw the speedy-trial
demand, Jones affirmed that he was in agreement with his attorney’s statements. Similarly,
at a December 10 motion hearing, Jones affirmed that his attorney’s statements regarding
his rejection of the state’s plea offer were correct. On these facts, we are confident that the
district court’s denial of Jones’s right to represent himself was limited to the June 29
hearing and that the court’s error was harmless beyond a reasonable doubt.
II.
Jones next argues that the district court committed plain error that warrants reversal
of his conviction by admitting evidence of the Snickers-bar incident and failing to give the
jury a cautionary instruction on relationship evidence.1 According to Jones, evidence of the

1 Jones implicitly concedes the admissibility of evidence of the key incident.

9
Snickers-bar incident was no t admissible under Minn. R. Evid. 404(b) or Minn. Stat.
§ 634.20, and it was not admissible as a distin ct type of relationship evidence. Jones did
not object to the state’s introduction of evid ence of the Snickers-bar incident and did not
request a midtrial or final instruction cautioning the jury about the limitations on its use of
relationship evidence. The partie s agree that the plain-error st andard of review therefore
applies. Under that standard, th e defendant must show “(1) e rror; (2) that is plain; and
(3) the error must affect substantial rights.” State v. Griller, 583 N.W.2d 736, 740 (Minn.
1998). “With respect to the substantial-rights requirement, [the defendant] bears the burden
of establishing that there is a reasonable likelihood that the absence of the error would have
had a significant effect on the jury’s verdict.” State v. Horst, 880 N.W.2d 24, 38 (Minn.
2016) (quotation omitted).
“Evidence of another crime, wrong, or ac t is not admissible to prove the character
of a person in order to show action in conformity therewith.” Minn. R. Evid. 404(b). Such
evidence may be admitted “for other purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or accident,” but only if
(1) the prosecutor gives notice of its intent to admit the
evidence consistent with the rules of criminal procedure;
(2) the prosecutor clearly indicates what the evidence will
be offered to prove; (3) the other crime, wrong, or act and
the participation in it by a rele vant person are proven by
clear and convincing evidence; (4) the evidence is relevant
to the prosecutor’s case; and (5) the probative value of the
evidence is not outweighed by its potential for unfair
prejudice to the defendant.

Id. Notwithstanding Minn. R. Ev id. 404(b), Minnesota law provides that “[e]vidence of
domestic conduct by the accused ag ainst the victim of domestic conduct, or against other

10
family or household members, is admissible unless the probative value is substantially
outweighed by the danger of unfair prejudice.” Minn. Stat. § 634.20.
Here, the state has abandoned its argument made in the district court that evidence
of the Snickers-bar incident was admissible under Minn. R. Evid. 4 04(b) or Minn. Stat.
§ 634.20. We note that the state neither met the generally applicable procedural
requirements for admission of evidence under rule 404(b) nor established that Jones’s
underlying conduct constitutes do mestic abuse, as required fo r admission of evidence of
the Snickers-bar incident as section 634.20 relationship evidence. See State v. Barnslater,
786 N.W.2d 646, 651 (Minn. App. 2010), review denied (Minn. Oct. 27, 2010) (stating that
admissibility of relationship evidence under section 634.20 is base d on whether “the
accused’s underlying conduct constitutes domestic abuse” (emphasis omitted)). “Domestic
abuse” is defined for this purpose as “(1) phy sical harm, bodily injury, or assault; (2) the
infliction of fear of imminent physical harm , bodily injury, or assault; or (3) terroristic
threats, . . . criminal sexual conduct, . . . or interference with an emergency call,” where
such conduct is “committed against a fam ily or household member by a family or
household member.” Minn. Stat . § 518B.01, subd. 2 (2014); see Minn. Stat. § 634.20
(expressly adopting section 518B.01’s definition of “domestic abuse”).
The state nevertheless argues that the distri ct court properly admitted evidence of
the Snickers-bar incident because Minnesota common law permits the admission of a
distinct type of relationship evidence and that evidence of the Snickers-bar incident met
the requirements for such admission. The state is only partially correct. Minnesota Rule of
Evidence 404(b) describes a class of evidence, also known as Spreigl evidence, regarding

11
a person’s other bad acts. State v. Rossberg, 851 N.W.2d 609, 615 (Minn. 2014). “Within
this class of evidence of other bad acts, [the supreme court] ha[s] distinguished traditional
‘collateral’ Spreigl evidence, which concerns an unrel ated crime against another person,
not the present victim, from evidence that illuminates the history of the relationship
between an accused and a victim. ” Id. (quotation omitted). This latter type of Spreigl
evidence, i.e., relationship evidence, “is trea ted differently than other evidence offered
under Minn. R. Evid. 404(b). The notice requirement under Minn. R. Evid. 404(b) is not a
condition for admissibility of evidence directly pertaini ng to the relationship history
between the defendant and the victim.” State v. Loving, 775 N.W.2d 872, 880 (Minn. 2009)
(citation omitted); see also State v. Hormann , 805 N.W.2d 883, 89 0 (Minn. App. 2011)
(stating that “Minnesota precedent [does not] require[] . . . Spreigl/rule 404(b) notice prior
to the introduction of relationship evidence”), review denied (Minn. Jan. 17, 2012).
But unless relationship evidence is inde pendently admissible under Minn. Stat.
§ 634.20, such evidence is admissible only on the district court’s determinations that “there
is clear and convincing evidence that the defendant committed the prior bad act” and “the
probative value of the evidence outweig hs any potential for unfair prejudice .” State v.
Bauer, 598 N.W.2d 352, 3 64 (Minn. 1999); see Minn. Stat. § 634.20 (providing for
admissibility of relationship evidence “unl ess the probative value is substantially
outweighed by the danger of unfair prejudice”); State v. Word , 755 N.W.2d 776, 784
(Minn. App. 2008) (stating that admissibility of section 634.20 relationship evidence does
not require clear and convin cing evidence that defendant committed the other domestic
conduct). And because relationship evidence is a form of Spreigl evidence, its admission

12
generally should trigger a cautionary instruction “prior to the admission of [the] evidence
and again at the end of trial to help ensure that the jury does not us e the evidence for an
improper purpose.” Bauer, 598 N.W.2d at 365. A cautionary instruction ordinarily should
be given even if it is not requested by the defendant. Id.
In this case, the district court did not determine that clear and convincing evidence
showed that Jones was responsible for the Snickers-bar incident. And we cannot conclude
that the state’s evidence about the Snickers-bar incident was clear and convincing. Because
the state did not prove Jones’s responsibility for th e Snickers-bar incident by clear and
convincing evidence, Snickers -bar-incident evidence was not admissible as relationship
evidence. See State v. Mayhorn, 720 N.W.2d 776, 784 (Minn. 2006) (“If the state intends
to present relationship evidence, it bears the bur den of proving that the incident at issue
actually involved the relevant parties in the present case. The evidence otherwise has no
probative value as relationship evidence.”). Moreover, the district court provided no
cautionary instruction regarding the limitations on the jury’s use of relationship evidence
about the key incident or the Snickers-bar incident.
Even if the district court plainly erred by admitting evidence of the Snickers-bar
incident and failing to give a cautionary inst ruction on relationship evidence, the record
belies Jones’s assertion that the inadmissibl e relationship evidence was extensive. The
state’s evidence of the Snicke rs-bar incident was limited to (1) three brief, general
references by V.W. in recordings of her 911 call and her covert recorded call to Jones, and
(2) a single exchange between the prosecutor and V.W., as follows:

13
THE PROSECUTOR: [D]id [Jones] come to your residence
and do anything else other than try to get his stuff back?
V.W.: No. He just try. He was, like, sleeping at the park down
the street from my house and ju st been around my residence.
Then he put a Snicker [sic] in my gas tank.
THE PROSECUTOR: A Snicker, right?
V.W.: Yeah.
THE PROSECUTOR: Some people say Sneaker.
V.W.: Yeah, a candy bar in my tank.

These brief references to the Snickers-bar incident were, by their nature, unlikely to inflame
the passions and prejudices of the jury. On cross-examination, Jones’s attorney effectively
dismantled the state’s evidence of the Snicke rs-bar incident, and th e prosecutor did not
mention the Snickers-bar incident in her clos ing argument. On these facts, we conclude
that Jones’s substantial rights were not affected by any plain error in the court’s admission
of evidence of the Snickers-bar incident and failure to give the jury a cautionary instruction
on relationship evidence.
III.
Jones seeks reversal of his conviction ba sed on alleged prejudicial prosecutorial
misconduct in the form of elicitation of inad missible testimony from V.W. and failure to
prepare V.W. in order to avoid inadmissible testimony.
2 Jones complains about V.W.’s

2 The state takes umbrage with Jones’s use of the phrase “prosecutorial misconduct” rather
than the phrase “pros ecutorial error” and urges us to use the latter phrase here. We have
stated that “[w]e agree that there is an important dis tinction to be made between
prosecutorial misconduct and prosecutorial error,” in that “[t]he former implies a deliberate
violation of a rule of practice, or perhaps a grossly negligent transgression,” while the latter
“suggests merely a mistake of some sort, a misstep of a type all trial lawyers make from
time to time.” State v. Leutschaft, 759 N.W.2d 414, 418 (Minn. App. 2009), review denied
(Minn. Mar. 17, 2009). But the phrases “prose cutorial misconduct” and “prosecutorial
error” largely have been used interchangeably by this court and by the supreme court. See,
e.g., State v. Yang , 774 N.W.2d 539, 559 (Minn. 2009) (using the two phrases

14
testimony about the Snickers-bar incident, Jone s’s prior incarceration, the knife incident,
and V.W.’s personal belief that Jones had committed the arson.
A prosecutor commits misconduct by “seek[ ing] to introduce evidence that has
previously been ruled inadmissible by the district court.” State v. Fields, 730 N.W.2d 777,
782 n.1 (Minn. 2007). And a prosecutor’s “attempts to elicit clearly inadmissible evidence,
even if that evidence was not previously ru led inadmissible by the district court, may
constitute misconduct.” Id. Moreover, “[t]he state has a duty to prepare its witnesses, prior
to testifying, to avoid inadmissible or prejudicial statements.” State v. McNeil, 658 N.W.2d
228, 232 (Minn. App. 2003) (citing State v. Carlson, 264 N.W.2d 639, 641 (Minn. 1978)),
review denied (Minn. June 25, 2003); see also State v. Hogetvedt , 623 N.W.2d 909, 914
(Minn. App. 2001) (“The state has a duty to ensure that its witnesses know the limits of
permissible testimony.”), review denied (Minn. May 29, 2001). As a result, improper
testimony by a witness for the st ate—even if not purposely elicited by the prosecutor—
may constitute prosecutorial misconduct. See State v. Mahkuk , 736 N.W.2d 675, 689
(Minn. 2007) (concluding that whether the stat e’s witness’s “violation of the trial court’s
order” prohibiting the witness from testifying about a gang’s possession of firearms “was

interchangeably); State v. Simion , 745 N.W.2d 830, 844 (Minn. 2008) (same); State v.
Smith, 825 N.W.2d 131, 139 (Mi nn. App. 2012) (same), review denied (Minn. Mar. 19,
2013); State v. Ferguson, 729 N.W.2d 604, 616 (Minn. App. 2007) (same), review denied
(Minn. June 19, 2007). And in Leutschaft itself, we noted that “[t]he standard for
prosecutorial misconduct . . . would seem equa lly applicable to pros ecutorial error.” 759
N.W.2d at 418. Moreover, the supreme court recently referred to an appellant’s claim that
“the prosecutor committed prejudicial misconduc t by failing to adequately prepare [the
state’s witness] to testify and eliciting inad missible testimony from him” as a claim of
“prosecutorial misconduct.” State v. Whitson , 876 N.W.2d 297, 30 4 (Minn. 2016). We
follow that example here.

15
intentional or not,” the witness’s “reference to firearms during hi s testimony” constituted
“misconduct attributable to the prosecutor” ). “Where such misconduct is alleged, the
standard of review depends on whethe r the defendant objected at trial.” Whitson, 876
N.W.2d at 304.
In this case, Jones did not object either to V.W.’s testimony about the Snickers-bar
incident or to V.W.’s testimony about Jones’s prior incarceration. We therefore apply the
standard of review for unobjected-to miscond uct to the prosecutor’s alleged acts and
omissions relating to that testimony. Because Jones did object both to V.W.’s testimony
about the knife incident and to one of V.W.’s testimonial st atements about her belief that
Jones was guilty of arson, we apply the standard of review for objected-to misconduct to
the prosecutor’s alleged acts and omissions relating to that testimony.
Unobjected-to misconduct
“When a defendant alleges unobjected-to prosecutorial misconduct, [appellate
courts] apply a modified plain-error standard that requires the defendant to show an error
was made that was plain.” Caldwell v. State, 886 N.W.2d 491, 501 n.6 (Minn. 2016). “An
error is plain if it is clear or obvious; this means an error that violates or contradicts case
law, a rule, or an applicable standard of conduct.” State v. Mosley, 853 N.W.2d 789, 801
(Minn. 2014). “If plain error is established, the burden then shif ts to the State to
demonstrate that the error did not affect the defendant’s substantial rights.” State v. Peltier,
874 N.W.2d 792, 803 (Minn. 2016). To do so , “the State must show that there is no
reasonable likelihood that the absence of th e misconduct in question would have had a
significant effect on the verdict.” Id. at 803–04 (quotation omitted).

16
As to the prosecutor’s alleged elicitation of inadmissible testimony from V.W. about
the Snickers-bar incident, as quoted above, Jones must show plain error. But we need not
determine whether the prosecutor committe d misconduct by allege dly eliciting this
evidence because no reasonable likelihood exists that V.W.’s testimony about the Snickers-
bar incident had a significant effect on the verdict.
As to the prosecutor’s alleged failure to prepare V.W. to avoid inadmissible
testimony about Jones’s prior incarceration, Jones must show plain error in the following
testimonial exchanges between his attorney and V.W.:
Q: You had his Biolife card, correct?
A: Correct. Because he gave it to me when he was in jail. He
told me to come pick it up.
. . . .
Q: [Y]ou kept his property.
A: It was in my truck.
. . . .
Q: It was all those things I listed, right?
A: Yeah.
Q: Including his Bio card, right?
A: He released his Bio card to me while he was incarcerated.
That’s how I got his Bio card.

We need not determine whether the prosecutor committed misconduct in connection with
this testimony because V.W.’s references to Jones’s prior incarceration were brief and
unaccompanied by any other evidence of his pr ior incarceration. The prosecutor did not
mention Jones’s prior incarceration in her opening statement or closing argument. On these
facts, we conclude that no reasonable likelihood exists that V.W.’s testimony about Jones’s
prior incarceration had a significant effect on the verdict.

17
Objected-to misconduct
For objected-to prosecutorial misconduct, “[appellate courts] have used a two-tiered
harmless-error test under which the standard of review varies based on the seriousness of
the misconduct.” Whitson, 876 N.W.2d at 304. “Under this test, unusually serious
prosecutorial misconduct is reviewed to de termine whether the misconduct was harmless
beyond a reasonable doubt.” Id. (quotation omitted).
Prosecutorial misconduct is harmless beyond a
reasonable doubt if the jury’s verdict was surely unattributable
to the misconduct. Factors rele vant to the determination of
whether prosecutorial misconduct is harmless beyond a
reasonable doubt include how the improper evidence was
presented, whether the State emphasized it, whether it was
highly persuasive, and whether the defendant countered it. The
strength of the other evidence su pporting the verdict is also a
factor in the analysis, but it is not dispositive. Finally, the
prejudicial effect of misconduct can be cured by proper
instructions to the jury.

Id. (quotation and citations omitted).

Knife Incident
The district court prohibited the state from introducing evidence of the knife
incident, and the prosecutor therefore had a duty to prepare V.W. to avoid any reference to
the knife incident. Yet the following exchange occurred between the prosecutor and V.W.
on redirect examination:
Q: Prior to the fire, did yo u call law enforcement about
anything other than the key taken from your ignition?
A: Yes.
Q: Okay. On [Jones] that week?
A: Yes.
Q: Okay. Why did you call?
A: ‘Cuz he pulled a knife on me.

18

While we do not know whether the prosecutor instructed V. W. to avoid such testimony,
we conclude that V.W.’s viol ation of the court’s prohibitio n of evidence of the knife
incident constitutes “misconduct attributable to the prosecutor.” See Mahkuk, 736 N.W.2d
at 689 (attributing misconduct to prosecutor where state’s witness made testimonial
reference to firearms in violation of district court’s ruling).
Immediately after Jones objected to V.W.’s testimony about the knife incident, the
district court instructed the jury: “[Y]ou are to strike the comments th at this witness just
stated.” The prosecutor placed no midtrial emphasis on V.W.’s testimony about the knife
incident, and the prosecutor made no menti on of the knife incident during her opening
statement or closing argument. We conclude that the court’s instruction cured any
prejudicial effect of the eviden ce about the knife incident a nd that the jury’s verdict was
surely unattributable to the misconduct. See Whitson, 876 N.W.2d at 304 (stating that “the
prejudicial effect of misconduct can be cured by proper instructions to the jury”).
V.W.’s opinion about Jones’s guilt
Although Jones objected to only one of V. W.’s three testimonial statements about
her belief that Jones was guilty of arson, we apply the standard of review for objected-to
misconduct to the prosecutor’s alleged acts and omissions relating to all three statements
by V.W. See State v. Nissalke, 801 N.W.2d 82, 105–07 (Minn. 2011) (treating as objected-
to misconduct each asserted instance of prosecutor “improperly shifting the burden of proof
to [defendant],” even though defendant objected only to “some of the asserted instances of
burden-shifting”); cf. State v. McDaniel, 777 N.W.2d 739, 749 (Minn. 2010) (assuming for

19
purposes of analysis that “all instances [of alleged prosecutorial misconduct] were objected
to” where defendant “generally made objections regarding the alleged misconduct during
witness examination” but “did not make any objections during the prosecutor’s opening
statement or closing argument”).
We conclude that the prosecutor comm itted misconduct by reason of V.W.’s
inadmissible opinions about Jones’s guilt, i.e., her testimony that Jone s “did that arson”;
that the night of June 24–25, 2015, was “[w]hen [Jones] did the arson”; and that “[Jones]
did the arson.” The state perp lexingly argues that V.W.’s lay opinion that Jones had
committed the arson was admissible evidence. The state is incorrect. See State v. Bonner, 275 Minn. 280, 28 7, 146 N.W.2d 7 70, 775–76 (1966) (“We ha ve held that voluntary
statements of a state’s witne ss before a jury which expresse d the witness’ opinion as to
defendant’s guilt . . . were prejudicial to the extent of denying the accused a fair trial . . . .”);
Hogetvedt, 623 N.W.2d at 915– 16 (concluding that appellant was entitled to new trial
where police officer’s testimony conveyed his personal belief that appellant was guilty as
charged).
We assume without deciding that the pros ecutor’s misconduct in this regard is
“unusually serious,” i.e., subject to “the most stringent standard of review.” See Whitson,
876 N.W.2d at 304 & n.2 (noting that “[r]ecent cases have questioned whether the two-
tiered . . . standard for reviewing objected-to misc onduct remains viable” and assuming
without deciding that unusually-serious standa rd applied to appellant’s claim that “the
prosecutor committed prejudicial misconduct by failing to adequa tely prepare [the state’s
witness] to testify and eliciting inadmissible testimony from him”).

20
Immediately after Jones objected to V.W.’s third and final testimonial opinion about
Jones’s guilt, the district court instructed the jury: “Just because she calls it an arson, that’s
what the whole trial is about. That’s for the jury to decide. That’s how she refers to [sic]
but that doesn’t necessarily mean that that’s what it is.” And shortly before the jury began
its deliberations, the court inst ructed the jury: “You are to disregard all evidence I have
ordered stricken or have told you to disregard.” We conclude that these instructions cured
any prejudicial effect of V.W .’s testimonial assessments of Jones’s guilt and that, under
the unusually-serious standard, the attri buted misconduct was harmless beyond a
reasonable doubt because the jury’s verdict was surely unattributable to the misconduct.
See id. at 304 (stating that “the prejudicial eff ect of misconduct can be cured by proper
instructions to the jury”).
IV.
Jones challenges the sufficiency of the ev idence to support his conviction, arguing
that because S.W.’s identification of Jones was based on his limited, fleeting observation,
the identification requires corroboration that is not in the record. Citing State v. Outlaw ,
748 N.W.2d 349 (Minn. App. 2008), review denied (Minn. July 15, 2008), Jones broadly
claims that “identification based on limited or fleeting observation requires corroboration.”
But that case actually states that “[c]orroboration is required when a single witness’s
identification of the defendant is made after only ‘fleeting or limited observation.’” Outlaw,
748 N.W.2d at 357 (emphasis added) (quoting State v. Walker, 310 N.W.2d 89, 90 (Minn.
1981)). Walker, in turn, notes:

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Although it is commonly stat ed that uncorroborated
eyewitness identification testimony of a single witness is
sufficient to support a guilty verdict, we have recognized that
not all single eyewitness cases are the same and have
emphasized that when the single witness’ identification of a
defendant is made after only fleeting or limited observation,
corroboration is required if the conviction is to be sustained.

310 N.W.2d at 90 (emphasis added) (citing State v. Spann , 287 N.W.2d 406, 407–08
(Minn. 1979)). The state’s identity evidence is insufficient if it consists of nothing more
than identification testimony by a single eyew itness whose observation of the perpetrator
was fleeting or limited. Cf. State v. Lloyd, 345 N.W.2d 240, 244 (Minn. 1984) (stating that
“[w]ith respect to identifying defendant as [the victim]’s mu rderer, the stat e’s evidence
essentially rested on the eyewitness identification of a single witness,” acknowledging that
the witness observed the murderer for as little as one minute from “approximately 85 feet
away” at night with limited lighting that re flected off snow, yet concluding that state’s
identity evidence wa s sufficient because “[s]hortly befo re the shooting occurred, it is
undisputed that defendant got into [the victim]’s car and they drove off alone,” and “[t]here
was also evidence tending to establish that de fendant was at the crime scene shortly after
the victim was killed”).
In this case, the identity of the arsonist was at issue—indeed, identity was the only
element of the crime that Jones disputed at trial. But even if we accept Jones’s
characterization of S.W.’s “limited” and “fleeting” observation of the person whom he saw
running away from the scene of the fire, the record shows th at the state presented other
evidence that Jones was the arsonist, because the state presented ad missible evidence of
Jones’s motive, means, and opportunity to set the fire. We view that evidence “in the light

22
most favorable to the State” and “assume that the jury belie ved the State’s witnesses and
disbelieved contrary evidence,” State v. Vue, 797 N.W.2d 5, 18 (M inn. 2011) (quotation
omitted), as follows.
Jones and V.W. had a somewhat tumultuous romantic relationship, and after V.W.
ended the relationship, Jones was homeless and had limited access to his belongings. In the
few days between the breakup and the fire, Jones frequently called and texted V.W., leaving
messages that expressed strong emotions and sometimes suggested that he was passing by
or lingering near the townhome. V.W. ignored Jones’s repeated requests to reconcile or to
let him stay temporarily at V.W.’s townhome or in her car. When V.W. tried to drive Jones
to a storage garage in which to put his belongings, Jones grabbed the key out of the ignition
and fled, temporarily disabling V.W.’s vehicle. He refused to give the key back for a time.
A few hours before the fire, V.W. had a male guest in her townhome. Around the
time that V.W. and the man left the townhome, Jones called and texted V.W.; the relevant
voicemails and text messages implied that V.W. was having sex with the man and
expressed hostility towards V.W., e.g., “I hope he gives you AIDS and you die” and “Die
of AIDS, B-tch.” About an hour later, Jones went to a gas station a short walking distance
from V.W.’s townhome. He acquired a gas can, purchased $3.50 in gas, pumped most of
the purchased gas into the can, and departed on foot in the general direction of the
townhome. About 15 minutes af ter that, gasoline was used to set fire to the townhome.
Gasoline was found on Jones’s shoes after his arrest.
In sum, the state presented circumstan tial evidence that corroborated S.W.’s
identification of Jones as the person whom he saw running away from the scene of the fire.

23
The state’s evidence of identity therefore consisted of more than identification testimony
by a single eyewitness whose observation of the perpetrator was fleeting or limited. See
Lloyd, 345 N.W.2d at 244– 45 (acknowledging that state’s evidence on identity was “not
particularly strong” but concluding that identity evidence was sufficient because “there is
some circumstantial evidence that tends to corroborate the identification” of defendant by
a single eyewitness with fleeting or limited observation). And any inconsistencies between
or gaps in S.W.’s identification testimony and the above-described corroborating evidence
do not undermine the corroborativ e force of that evidence. See id. at 245 (rejecting
defendant’s inconsistency-based attacks on single eyewitness’s identification testimony
because “[t]he resolution of c onflicting testimony is the excl usive function of the jury”).
We conclude that the state presented suffici ent evidence of Jones’s guilt of first-degree
arson.
Affirmed.