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This opinion will be unpublished and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
A16-1859

State of Minnesota,
Respondent,

vs.

Steven Bernard Edwards,
Appellant.

Filed September 25, 2017
Affirmed
Schellhas, Judge

Hennepin County District Court
File No. 27-CR-15-6336

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

Michael O. Freeman, Hennepin County Attorney, Linda M. Freyer, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

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

Considered and decided by Schellhas , Presiding Judge; Ross, Judge; and
Kalitowski, Judge.
*

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.

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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, and sentence for, first-degree arson, arguing
that (1) the district court abused its discretion by allowing certain expert testimony; (2) the
prosecutor committed misconduct; and (3) the district court abused its discretion by
denying appellant’s motion for a downward dispositional departure. We affirm.
FACTS
Just after midnight on an August evening in 2014, police and firefighters responded
to a fire in a Minneapolis home where appellant Steven Edwards resided with his girlfriend,
D.F.; their two minor children; and D.F.’s daughter. D.F. and the children were not in the
home when the fire started, but one of the ch ildren saw Edwards leav ing the house as it
was burning. Respondent State of Minnesota charged Edwards with one count of first-
degree arson in violation of Minn. Stat. § 609 .561, subd.1 (2014). A jury found Edwards
guilty as charged and the district court sentenced him to 78 months’ imprisonment.
This appeal follows.
D E C I S I O N
I
Minnesota Rule of Evidence 702 governs th e admissibility of expert testimony.
Under rule 702, “expert testimony is admissible if: (1) the witness is qualified as an expert;
(2) the expert’s opinion has foundational relia bility; (3) the expert testimony is helpful to
the jury; and (4) if the testimony involves a novel scientific theory, it must satisfy the Frye-
Mack standard.” State v. Obeta , 796 N.W.2d 282, 289 (Minn. 2011). We review the

3
admission of expert testimony fo r an abuse of discretion. State v. Mosley , 853 N.W.2d
789, 798–99 (Minn. 2014). “Evi dentiary rulings rest within the sound discretion of the
[district] court and will not be reversed absent a clear abuse of discretion. On appeal, the
appellant has the burden of establishing that the [district] court abused its discretion and
that appellant was thereby prejudiced.” State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003)
(citation omitted).
In a written pretrial order, the district court found that Mark Bishop, a licensed fire
investigator, qualified as an expert in fire investigations, and that his expert opinion about
the origin and cause of the fire (combustib les coming into contac t with the energized
burner) would assist the jury and had foundational reliability. 1 But the court granted
Edwards’s motion to exclude Bish op’s opinions that (1) “the first fuel was brought into
contact with the energized burner by human intervention,” and (2) “the starting of the fire
was a deliberate act.” Edwards argues on appeal that the court abused its discretion by
allowing Bishop to testify because his testimony lacked adequate foundation. But Edwards
did not make this general argument about Bishop ’s qualifications in the district court and
therefore has forfeited the argument. See State v. Beaulieu , 859 N.W.2d 275, 278 & n.3
(Minn. 2015) (explaining that, “[a] constitutional right, or a right of any other sort, may be
forfeited in criminal as well as civil cases by the failure to make tim ely assertion of the

1 Because neither party argued to the district court, or to this court, that the disputed
testimony involves novel scien tific theory, the district c ourt did not address nor do we
address the Frye-Mack standard.

4
right before a tribunal having jurisdiction to determine it”). We decline to address this
argument.
Edwards also argues that the district court abused its discretion by admitting
Bishop’s testimony about the first fuel ignited because it was based on untested
speculation.
In the challenged testimony, Bishop described what he found in the kitchen debris
and explained that he ruled out unattended cooking because he did not find any evidence
of cooking activity, such as grease in a pan. Bishop then testified that, at the bottom of the
debris pile in the kitchen, he found charred “envelopes, pieces of paper, things that have
clearly either been in an envelope or were the envelope themselves.” Bishop opined that
this finding was significant because “if these things were at the bottom, this is the first stuff
that came off the top of the range.” Bishop then describe d how the pile was built during
the firefighters’ efforts to extinguish the fire after which the following colloquy occurred,
in relevant part, about the cause of the fire:
THE STATE: Are you able to ex clude or eliminate any other
potential combustibles that were in the kitchen?
BISHOP: I am able to say th at I couldn’t come up with
anything else that was a competent first fuel, the first thing that
this hot burner could ignite. The contents of all of the cabinets
were in that pile on the floor. Boxes of pasta and, I mean, all
the things people have in thei r kitchens, and they were quite
recognizable as boxes of pasta and all the other things. So,
there was really a lack of any other fuel, but I think once I got
to the -- I don’t have cooking. I was bothered by the idea that
the burner was on. Realistically , you can turn a range burner
on, and it will never ignite the cab inets above it or to the side
of it. It can’t get them that hot. So, there had to be an
introduction of something to ge t enough fire to get these

5
cabinets burning and to do the damage that’s reflected in my
photographs.
. . . .

THE STATE: Were you able to hypothesize a natural way by
which the combustible would have gotten to that burner?
BISHOP: I considered the po ssibility that, you know, by
opening a door or window or whatever, that these things could
have blown over there, and there was just no way that I could
convince myself that that would have worked.
. . . .

THE STATE: Can you hypothes ize or were you able to
hypothesize a mechanism other than a person or a human that
would have gotten the combustible to the burner?
BISHOP: I was not. It’s the only way I could see it happening
. . . .

Although Bishop did not opine that the fire started because a human placed the first
fuel ignited on the burner or that the fire started because of a deliberate act, such an
inference would be reasonabl e based on his testimony. Bu t Bishop acknowledged during
cross-examination that he was not certain what combustible was the first fuel ignited:
DEFENSE: And you don’t know which one of those things
was the first fuel ignited. You can’t tell [be]cause they were all
burned in some way and were competent co mbustibles,
correct?
BISHOP: Correct.
DEFENSE: And previously, you testified that you got a little
too excited about the letters because of your conversation with
[D.F.], correct?
BISHOP: Yes.

We conclude that Edwards’s argument that th e district court abused its discretion by
admitting Bishop’s testimony about the first fuel ignited because it was based on untested
speculation lacks merit.

6
But Edwards is correct that Bishop’s testim ony exceeded the scope of the pretrial
order when he said that “my construct is that there’s a pile of letters. They’re just kind of
dumped on top of the range, the burner is turned on and off it goes.” Construct, as a noun,
means “an image, idea, or th eory, especially a complex one formed from a number of
simpler elements.” Dictionary.com, http://www.dictionary.com/browse/construct (last
visited August 25, 2017). Becau se “construct” means the sa me thing as “opinion,” the
district court abused its discretion by admitting Bishop’s above-noted testimony because it
violated the court’s pretrial order.
But, even though the district court erred by admitting Bishop’s above-noted
testimony, Edwards must establish th at he was prejudiced by the error. See Amos, 658
N.W.2d at 203; s ee also State v. Nunn , 561 N.W.2d 902, 907 (Minn. 1997) (stating that,
“[r]eversal is warranted only when the error substantially influences the jury’s decision”).
“The defendant bears the burden on appeal of showing both the abuse of discretion and the
prejudice justifying reversal.” State v. Jackson, 770 N.W.2d 470, 482 (Minn. 2009). Here,
after the court admitted the testimony, the cour t read the following curative instruction to
the jury twice:
To the extent that you unders tood the last witness, Mr.
Bishop, to express an opinion th at the first fuel was brought
into contact with the burner by human intervention or that the
starting of the fire was a delib erate act, you should disregard
that opinion, and it should play no part in your deliberations.

Minnesota courts “presume that juries follow instructions given by the court.” State
v. Matthews, 779 N.W.2d 543, 550 (Minn. 2010). Because the district court gave a curative
instruction to the jury , we conclude that Edwards has not met his burden of establishing

7
that he was prejudiced by the erroneous testimony. See State v. Swanson, 307 Minn. 412,
422, 240 N.W.2d 822, 828 (1 976) (holding that the erro r of admitting “irrelevant and
possibly harmful” evidence about unrelated criminal conduct was nonprejudicial because
of the cautionary instruction).
II
Edwards argues that the prosecutor committed misconduct during closing argument
and rebuttal by stating facts not in evidence and by attempting to shift the burden of proof.
We are not persuaded. Edwards concedes that he did not object to the prosecutor’s alleged
misconduct at the time it occurred. For unobjected-to prosecutorial misconduct, this court
applies a modified plain-error test. State v. Ramey , 721 N.W.2d 294, 299–300 (Minn.
2006). To prevail, Edwards must establish that there was an error and that the error is plain.
Id. at 302. An error is plain “if the error contravenes case law, a rule, or a standard of
conduct.” State v. Wren , 738 N.W.2d 378, 393 (Minn. 2007) (quotation omitted). If
Edwards can establish a plain er ror, the burden shifts to the state to show that the plain
error did not affect Edwards’s substantial rights. Ramey, 721 N.W.2d at 302. “If all three
parts of the test are met, we may correct the error only if it seriously affects the fairness,
integrity, or public reputation of judicial proceedings.” State v. Peltier, 874 N.W.2d 792,
804 (Minn. 2016) (quotation omitted).
Edwards argues that the prosecutor comm itted misconduct by “embellish[ing] the
testimony of both Bishop and [L .E.], adding details that neither witness had testified to,”
and “argu[ing] in rebuttal that [Edward]’s theory of the case was ‘evil,’ and impl[ying] that
[Edwards] needed to show that the victim, D.F. was ‘ev il.’” D.F. testified that she ended

8
her 12-year relationship with Edwards on th e morning of August 14, 2014, and that
Edwards was drunk and angry with her that evening because she went to a bar with a friend.
Edwards told D.F. that he would do something to her house if she did not come home. D.F.
did not go home, and L.E., one of Edwards’s children, testified that on the day that the fire
started, Edwards said that he “was going to” burn down the house. (Emphasis added.) On
cross-examination, L.E. initially testified that he saw smoke as he and Edwards walked
away from the house, which, Edwards argues, suggested that the house was not on fire. But
L.E. later testified that the house was on fire, or at least smoking, when he left it. The
prosecutor told the jury that “[L.E.] did correct himself a number of times.”
The prosecutor began her closing argument as follows:
Ladies and gentlemen, the defendant said he was going to do it
and then he did it. He gave [D.F.] an ultimatum. If you don’t
come home right now, I’m going to do something to your
house, and he was perfectly clear with his intentions and when
she did not comply, he followed through on his terms.
He turned on a burner, gra bbed some mail, whatever
else he could find, put it on top of the ignited burner, and he
did it because he was drunk and he was angry and he wanted
to hurt [D.F.].

We conclude that the prosecutor’s statement was not clearly erroneous because the
record supports the assertion that L.E. co rrected himself a number of times and because
Edwards admitted on direct examination that he had been drinki ng, and that he turned on
a stove burner. He thereby implicitly conced ed that the prosecutor’s inference was
reasonable by acknowledging that “the pros ecutor, based on Bishop’s observations,
descriptions and photographs, may have been able to argue that the letters were placed on
the burner by human hands and then fell to the kitchen floor.”

9
The state has a right to vigorously argue its case, and it may argue in individual
cases that the evidence does not support particular defenses. State v. Davis, 735 N.W.2d
674, 682 (Minn. 2007). In closing argume nts, prosecutors may argue all reasonable
inferences that may be drawn from the evidence. State v. Bobo , 770 N.W.2d 129, 142
(Minn. 2009). Prosecutors have no obligation to give a colorless argument. State v. Porter,
526 N.W.2d 359, 363 (Minn. 1995). But prosec utors may not obtain a conviction at any
price, for example, by intentionally missta ting the evidence or misleading the jury about
the inferences to be drawn from the evidence. Peltier, 874 N.W.2d at 805. This court must
look “at the closing argument as a whole, rather than just selective phrases or remarks that
may be taken out of context or given undue prominence.” State v. Walsh, 495 N.W.2d 602,
607 (Minn. 1993). “Even if an argument is in some respects out-of-bounds, it is normally
regarded as harmless error unless the misconduc t played a substantial part in influencing
the jury to convict the defendant.” Id.
Here, the prosecutor’s statement set forth he r theory of the case and our review of
the record confirms that it was based on re asonable inferences from the totality of the
evidence. We therefore conclude that Edwards’s prosecutorial-misconduct argument fails.
Edwards also argues that the prosecutor committed misconduct during her rebuttal
argument by arguing that by his testimony, Ed wards was asking the jury to believe that
D.F. had gotten both her daughter and son to lie and implying that to avoid a guilty verdict,
Edwards had to show that D.F. was “evil” by prompting her children to lie. Edwards argues
that the prosecutor wrongfully shifted the burden of proof to the defense to discredit the
state’s witnesses and that he was thereby prejudiced. We disagree. Our review of the record

10
suggests that the prosecutor was merely arguing that the testimony and other evidence did
not support the defense’s theory of the case. Rather than “shifting the burden to defense”
to discredit the witnesse s, the state was simply asking th e jurors to reconcile the state’s
version of the events with the demeanor of D.F. and the totality of the evidence.
We conclude that Edwards has failed to meet his burden of proving that the
prosecutor made an error that was plain duri ng her closing statement. We therefore need
not analyze whether any error was prejudicial. And even if the prosecutor did err, any error
was unlikely to have changed the jury’s deci sion because the record evidence about the
sequence of events on that night when the fire started, who said what to whom before the
fire started, and whether Edwards told L.E. that he planned to bur n the house down is
conflicting. The jury was required to resolve the conflicts in the evidence in arriving at its
verdict.
III
Finally, Edwards argues that the district court abused its discretion by denying his
motion for a downward dispositional departure. We disagree. This court “afford[s] the
[district] court great discreti on in the imposition of sentence s’ and reverse[s] sentencing
decisions only for an abuse of that discretion.” State v. Soto , 855 N.W.2d 303, 307–08
(Minn. 2014) (quotation and footnote omitted ). The Minnesota Sentencing Guidelines
provide sentencing ranges that are “presumed to be appropriate for the crimes to which
they apply.” Minn. Sent. Guidelines 2.D.1 (Supp. 2015). “[A] court must impose the
presumptive sentence—that is, a sentence w ithin the applicable disposition and range—
‘unless there exist identifiable, substantial, and compelling circumstances to support a

11
departure.’” State v. Fleming , 883 N.W.2d 790, 795 (Minn. 2016) (quoting Minn. Sent.
Guidelines 2.D.1). “Substantia l and compelling circumstances for a durational departure
are those which demonstrate that the defendan t’s conduct was significantly more or less
serious than that typically involved in the commission of the crime in question.” State v.
Rund, 896 N.W.2d 527, 532 (Minn. 2017) (quotations omitted).
“[T]he presence of mitiga ting factors does ‘not oblig ate the court to place a
defendant on probation or impose a shor ter term than the presumptive term.’” Wells v.
State, 839 N.W.2d 775, 781 (Minn. App. 2013) (quoting State v. Wall, 343 N.W.2d 22, 25
(Minn. 1984)), review denied (Minn. Feb. 18, 2014). If one or more mitigating factors is
shown, “[w]hether to depart [downward] from the sentencing guidelin es rests within the
district court’s discretion, and the district court will not be reversed absent an abuse of that
discretion.” State v. Pegel , 795 N.W.2d 251, 253–54 (M inn. App. 2011) (citing State v.
Spain, 590 N.W.2d 85, 88 (Minn. 1999)). “Only in a rare case will a reviewing court reverse
the imposition of a presumptive sentence.” Id. at 253 (citing State v. Kindem, 313 N.W.2d
6, 7 (Minn. 1981)). But “[i]f the district court has discretion to depart from a presumptive
sentence, it must exercise that discretion by deliberately considering circumstances for and
against departure.” Id. (quotation omitted). “When the record demonstrates that an exercise
of discretion has not occurred, the case must be remanded for a hearing on sentencing and
for consideration of the departure issue.” Id.
Edwards asked the district court for a downward dispositional departure from the
presumptive executed sentence to probation based on his alleged amenability to probation.
He argued that the Trog factors support probation in this case. “[A] defendant’s particular

12
amenability to individualized tr eatment in a probationary setti ng will justify departure in
the form of a stay of execution of a presumptively executed sentence.” State v. Trog, 323
N.W.2d 28, 31 (Minn. 1982). “Numerous factors, including the defendant’s age, his prior
record, his remorse, his cooperation, his attitude while in court, and the support of friends
and/or family, are relevant to a determinatio n whether a defendant is particularly suitable
to individualized treatment in a probationary setting.” Id.
In Soto, the Minnesota Supreme Court clarified that it had “never said that merely
being amenable to probation—as opposed to being particularly amenable to probation—
can justify staying a presumptively execute d sentence.” 855 N.W.2d at 308. The court
explained the distinction as follows: “Our c onsistent use of the words ‘particular’ and
‘particularly’ in this context is not accidental.” Id. at 309. “‘Particular’ means ‘exceptional’
or ‘distinctive among others of the same gr oup,’ and ‘particularly’ means ‘especially’ or
‘specifically.’” Id. “By requiring a defendant to be particularly amenable to probation,
therefore, we ensure that the defendant’s amen ability to probation distinguishes the
defendant from most others and truly pr esents the ‘substantial[] and compelling
circumstances’ that are necessary to justify a departure.” Id. “At the same time, insisting
on particular amenability to probation limits th e number of departures and thus fosters
uniformity in sentencing, which is a primary purpose of the Sentencing Guidelines.” Id.
When the district court denied Edwards’s departure motion, it explained that:

I don’t find that you are particul arly amenable to probation.
And the word particularly means especially, more so than other
people. I don’t find that th e arguments in favor of your
amenability to probation provide a substantial and compelling

13
reason to depart downwards in your case. So I don’t find a basis
to depart.

Edwards argues that the court’s explanation was insufficient because it does not reflect that
the court exercised its sentencing discretion. Edwards does not cite to any authority for the
proposition that a court must make specific findings in th ese circumstances nor are we
aware of any. His argument fails.
Edwards also argues that the district c ourt erred in sentencing him because “the
prosecutor’s oral response [at sentencing] was full of legal errors,” and the court did not
correct the prosecutor’s misleading arguments about Edwards’s intoxication at the time of
the offense and subsequent remorse. The st ate argued that “remorse was not a valid
mitigating factor unless it ‘related back’ to the offense,” and “although intoxication at the
time of the offense is not a valid departure factor, a defendant’s chemical dependency may
be considered.” But Edwards’s argument fails because he challenges only the court’s denial
of a dispositional departure and the prosecut or made the statements now challenged in
response to Edwards’s request for a downward durational departure.
Finally, Edwards argues that the district court erred in denying his departure motion
because he “presented a strong case that his offense was less-serious than the typical first-
degree arson.” This argument also fails because, even if there are mitigating factors, the
district court has discretion to impose the presumptive sentence. See Wells, 839 N.W.2d at
781. And although Edwards’s crime may not have been more serious than a typical arson,
no record evidence establishes that his crime was less serious than the typical arson.
Affirmed.