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This opinion will be unpublished and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
A16-2053

State of Minnesota,
Respondent,

vs.

James Willard Murray,
Appellant.

Filed December 26, 2017
Affirmed
Johnson, Judge

Mille Lacs County District Court
File No. 48-CR-14-1754

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

Joe Walsh, Mille Lacs County Attorney, Milaca, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Lydia Maria Villalva Lijo,
Assistant Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Ross, Presiding Judge; Johnson, Judge; and Klaphake,
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
JOHNSON, Judge
A Mille Lacs County jury found James Willard Murray guilty of malicious
punishment of a child based on evidence that his five-month-old son sustained a serious
and permanent brain injury while in Murray’s care . We conclude that the evidence is
sufficient to support the conviction and that the prosecutor did not engage in misconduct
during opening statements or closing arguments. Therefore, we affirm.
FACTS
In July 2014, Murray lived in a townhome in Onamia with his girlfriend, C.A.S.-P.;
their five-month-old son, C.M. ; and C.A.S.-P.’s two -year-old child from a prior
relationship. C.A.S.-P. was employed; Murray cared for their baby while C.A.S.-P. was at
work. C.A.S.-P. frequently took C.M. to a pediatrician for check-ups and for issues such
as a respiratory infection , acid reflux, and pink eye , but C.M. essentially was a healthy
baby, though he often was fussy.
During the morning of Monday, July 28, 2014, Murray was at home with C.A.S.-P.
and C.M. A next -door neighbor and his three -year-old son visited. Murray and the
neighbor played video games in Murray’s home for a few hours before the neighbor left to
allow his son to take a nap. At approximately noon, C.A.S.-P. put C.M. down for a nap on
the couple’s bed . At approximately 1:00 p.m., she went to work. Murray stayed home
with C.M.
At approximately 2:00 p.m., a family friend who is C.M.’s godmother made a
spontaneous visit to Murray’s townhome. The godmother immediately saw Murray in a
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state of panic , pacing back and forth with C.M. in his arms . M urray gave C.M. to the
godmother. T he baby was not breathing . The godmother left the townhome with C.M.
and rushed him to the emergency room of a nearby hospital. Murray followed.
When C.M. arrived at the emergency room, he was “gasping” for air, his eyes were
rolled back, and he was limp and lifeless. He was flown by helicopter to Children’s
Hospital in Minneapolis. Medical professionals there observed retinal hemorrhages in both
of the baby’s eyes and a subdural hematoma (i.e., bleeding around the outside layer of the
brain).
Investigators from the Mille Lacs County Sheriff’s Office interviewed Murray four
times between July 28 and August 29, 2014. In the first interview, on July 30, 2014,
Murray said that he went upstairs to check on C.M. because he heard him fussing. He said
that he changed C.M.’s diaper and brought him downstairs. On his way down the stairs,
Murray said that C.M. “just went limp in [his] arms.” Murray said that C.M.’s godmother
then entered the townhome, and they took C.M. to the emergency room . In the second
interview, on August 20, 2014, Murray maintained that nothing unusual happened before
C.M. suddenly “stiffened up” and became limp as Murray brought him downstairs.
In the third interview , on August 29, 2014, Murray said that he earlier had “left a
detail out.” Murray said that when he brought C.M. downstairs, he placed him on his knee,
sitting upright, and began to “bounce him pretty hard .” Murray said that he became
frustrated after C.M. would not stop crying and bounced C.M. even harder. Murray said,
“I realized that I probably shook him too hard or something, and he was still cryin g so I
just grabbed him and I started soothing him . . . to pat him on his back and he had a seizure.”
4
In the fourth interview, approximately 20 minutes after the third, Murray reiterated that he
bounced C.M. after getting frustrated with his crying.
The state charged Murray with five offenses: (1) first-degree assault by inflicting
great bodily harm, in violation of Minn. Stat. § 609.221, subd. 1 (201 2); (2) third-degree
assault on a victim under the age of four, in violation of Minn. Stat. § 609.223, subd. 3
(2012); (3) domestic assault, in violation of Minn. Stat. § 609.2242, subd. 4 (201 2);
(4) malicious punishment of a child under the age of four years old, in violation of Minn.
Stat. § 609.377, subd. 4 (2012); and (5) malicious punishment of a child by inflicting great
bodily harm, in violation of Minn. Stat. § 609.377, subd. 6 (2012).
The case was tried on seven days in June 2016. The state called 11 witnesses.
C.A.S.-P. testified that C.M. had not experienced any traumatic events immediately before
July 28, 2014. The neighbor testified that when he left Murray’s townhome, C.M. was
fussy but otherwise normal. Jason Gallion, an investigator with the Mille Lacs County
Sheriff’s Office, testified that, based on his interviews of Murray, C.A.S.-P., and the
neighbor, he determined that C.M. was uninjured when C.A.S.-P. left for work at
approximately 1:00 p.m. and that Murray was alone with C.M. until C.M.’s godmother
arrived. During Gallion’s testimony, the state played for the jury the four audio-recorded
interviews of Murray. C.M.’s godmother testified that when she arrived at the townhome,
she noticed that the infant was not breathing, that his legs were blotchy red, and that his
arms were limp. On cross-examination, she explained that while C.M. was being airlifted,
C.M.’s breathing tube slipped out of his throat and medical personnel administered
cardiopulmonary resuscitation (CPR).
5
The state also presented the testimony of four medical professionals who treated
C.M. and one medical professional who testified as an expert witness. Erik Rivers, who
was employed as a physician’s assistan t in the Mille Lacs emergency room on July 28,
2014, and saw C.M. immediately upon his arrival, testified that C.M. was unconscious and
having difficulty breathing and that the medical professionals in the trauma bay used a bag
mask to pump oxygen into his lungs. Rivers explained that “trauma” occurs “when the
body has suffered some form of insult, external to the body,” such as a “fall, physical abuse
like a fist fight or . . . an accident.”
Dr. Richard Patterson, a pediatric radiologist at Children’s Hospital who specializes
in neuro-imaging, testified that C.M .’s brain scans showed bleeding around the brain,
which initially raised suspicion of abusive head trauma because such trauma is a leading
cause of subdural hem atoma in infants. Dr. Patterson testified that an expansion of fluid
around the brain typically occurs in the first day after the injury. Dr. Patterson also testified
that C.M. did not show signs of a skull fracture or scalp swelling, which would indicate an
external force. Rather, C.M.’s injuries were “intracranial,” which suggests “abusive
trauma,” which he defined as “neuro -trauma injury to the brain, its coverings, the spinal
cord” as “a result of . . . physical maltreatment.” On cross -examination, Dr. Patterson
testified that C.M.’s injuries were similar but not identical to injuries caused by suffocation
or drowning, which involves a lack of oxygen.
Dr. Michael Vespasiano, a pediatric critical -care physician at Children’s Hospital,
testified that he referred C.M. to the Midwest Children’s Resource Center (MCRC) due to
his concern about possible child abuse. Dr. Vespasiano testified that C.M.’s injuries were
6
“non-accidental in nature” because there was no report of a fall, car accident, or other injury
and because C.M.’s condition developed in a short period of time.
Laurel Edinburgh, a nurse and assistant clinical director of the MCRC, testified that
she examined C.M. on July 29, 2014, and concluded that his injuries were “strongly
concerning for child physical abuse. ” Edinburgh determined that C.M.’s injuries were
caused by “significant head trauma” because retinal hemorrhages do not occur as a result
of a “tiny fall” and because C.M. lacked any medical history that would indicate any other
significant incident, such as a motor-vehicle accident.
During its case -in-chief, the state introduced evidence to refute the anticipated
defense theory that C.M.’s injuries were caused by a lack of oxygen when the breathing
tube was dislodged during the flight from Onamia to Minneapolis. Dr. Vespasiano testified
that C.M.’s injuries could not have been caused by the intubation issues that occurred
during C.M.’s transport from Mille Lacs to Children’s Hospital. Rivers testified that a lack
of oxygen might cause damage to a child but would not cause the severe head trauma that
C.M. sustained. Dr. Mark Hudson, who was qualified as an expert witness, testified that,
based on C.M.’s age, immobility, and lack of medical history of trauma, the cause of his
injuries was “abuse.” Dr. Hudson explained that C.M.’s retinal hemorrhages and bleeding
on the brain were “highly suggestive” of severe trauma. He explained that, because a five-
month-old infant is non-mobile, “it is almost impossible for an infant to have trauma where
a caregiv er does not know about it.” Dr. Hudson further testified that C.M.’s injuries
occurred “ prior to medical intervention” and could not have been caused by a lack of
oxygen.
7
The state also offered evidence of the after -effects of C.M.’s injuries. Dr. Karil yn
Avery, a pediatrician in Little Falls, testified that she examined C.M. on five occasions ,
beginning when he was nine months old. Dr. Avery testified that, at nine months, C.M.
was unable to sit up, to focus his eyes, to move his arms, and to vocalize as would be
expected of a nine -month-old child. Dr. Avery further testified that, during her last
examination, when C.M. was almost two years old, he “was not interacting like a normally
developing almost 2 year old.” She explained that C.M. should have been able to interact,
to speak a few simple words, to respond to commands, to walk, and to learn, but that he
was not demonstrating any of those normal two-year-old behaviors.
The defense re-called C.A.S.-P. and also called two expert witnesses. Dr. Thomas
Young, a clinical and forensic pathologist, testified that C.M.’s injuries could not have been
caused by bouncing an infant on a person’s knee three times . Dr. Young testified that
C.M.’s injuries likely were caused by oxygen deprivation when “the breathing tube stopped
functioning.” Dr. John Plunkett, a pathologist, testified that C.M.’s brain injury was caused
by a lack of oxygen when his breathing tube became plugged or dislodged.
The jury found Murray guilty on counts 4 and 5 . The jury was unable to reach
verdicts on counts 1, 2, and 3 . The district court imposed a sentence of 68 months of
imprisonment on count 5, the charge of malicious punishment of a child by inflicting great
bodily harm. Murray appeals.
8
D E C I S I O N
I. Sufficiency of the Evidence
Murray argues that the evidence is insufficient to support his conviction. His
argument has two parts. First, he argues that the evidence is insuf ficient to prove beyond
a reasonable doubt that he engaged in discipline or punishment. Second, he argues that the
evidence is insufficient to prove beyond a reasonable doubt that he caused the bodily harm
that C.M. suffered.
When reviewing whether there is sufficient evidence to support a conviction, this
court undertakes a “painstaking analysis of the record to determine whether the evidence,
when viewed in the light most favorable to the conviction, was sufficient” to support the
conviction. State v. Ortega, 813 N.W.2d 86, 100 (Minn. 2012) (quotation omitted). We
assume that “the jury believed the state’s witnesses and disbelieved any evidence to the
contrary.” State v. Caldwell, 803 N.W.2d 373, 384 (Minn. 2011) (quotation omitted). We
“will not disturb the verdict if the jury, acting with due regard for the presumption of
innocence and the requirement of proof beyond a reasonable doubt, could reasonably
conclude that the defend ant was guilty of the charged offense.” Ortega, 813 N.W.2d at
100.
The statute setting forth the offense of conviction provides as follows: “ A parent,
legal guardian, or caretaker who, by an intentional act or a series of intentional acts with
respect to a child, evidences unreasonable force or cruel discipline that is excessive under
the circumstances is guilty of malicious punishment of a child . . . .” Minn. Stat. § 609.377,
subd. 1. The offense is a felony “[i]f the punishment is to a child under the age of four and
9
causes bodily harm to the head, eyes, neck, or otherwise causes multiple bruises to the
body,” id., subd. 4, or “[i]f the punishment results in great bodily harm,” id., subd. 6. In this
case, the state charged Murray in counts 4 and 5 wit h the felony offenses authorized by
subdivisions 4 and 6. The jury found Murray guilty of both offenses, and the district court
sentenced him on count 5.
A. Whether Murray Disciplined C.M.
Murray first argues that the evidence is insufficient to prove beyond a reasonable
doubt that he engaged in discipline or punishment, which he contends is necessary to satisfy
the statutory definition of the offense. He elaborates by asserting that his pre -trial
statements, which were admitted into evidence, “showed that he was not punishing C.M.
but was trying to soothe and calm him.”
Murray’s argument is based on the statutory requirement that he engaged in
“unreasonable force or cruel discipline .” See Minn. Stat. § 609.377, subd. 1. The two
terms — “unreasonable force” and “cruel discipline” — are alternatives. State v. Broten,
836 N.W.2d 573, 577 (Minn. App. 2013), review denied (Minn. Nov. 12, 2013) .
Accordingly, the evidence wo .uld be sufficient if it showed that Murray’s actions
constituted either “ unreasonable force” or “cruel discipline.” See Minn. Stat. § 609.377,
subd. 1; Broten, 836 N.W.2d at 577.
To the extent that Murray’s argument assumes that the state must prove “discipline,”
his argument is based on an incorrect premise. As a matter of law, proof of “discipline” is
unnecessary if there is proof of “unreasonable force.” See Minn. Stat. § 609.377, subd. 1;
10
Broten, 836 N.W.2d at 577. Murray does not contend that the evidence is insufficient to
prove that his actions constitute “unreasonable force.”
To the extent that Murray’s argument assumes that, to satisfy the applicable statute,
the state must prove “punishment,” his argument is based on another incorrect premise. As
a matter of law, proof of “punishment” is unnecessary because it is n ot included in the
operative language of the statute. See Minn. Stat. § 609.377, subd. 1. Murray relies on a
pattern jury instruction, which defines “unreasonable force” to mean “such force used in
the course of punishment as would appear to a reasonable person to be excessive under the
circumstances.” See 10 Minnesota Dist. Judges ’ Ass’n, Minnesota Practice —Jury
Instruction Guides, § 13.85, at 655 (Thomson Reuters 6th ed. 2015) (emphasis added). The
pattern jury instruction on which Murray relies is among the pattern jury instructions
published by the Minnesota District Judges’ Association and is a resource for district court
judges and attorneys. See Minnesota Practice —Jury Instruction Guides , supra, at iii-v;
Rowe v. Munye , 702 N.W.2d 729, 734 n.1 (Minn. 2005). The pattern jury instructions
“express the opinion of the Minnesota District Judges Association Committee on Criminal
Jury Instruction Guides.” State v. Broulik, 606 N.W.2d 64, 70 (Minn. 2000). The pattern
jury instructions are not, in and of themselves, binding law. See State v. Peterson , 673
N.W.2d 482, 484 n.1 (Minn. 2004); Rowe, 702 N.W.2d at 734 n.1; Broulik, 606 N.W.2d at
70. Furthermore, it is irrelevant that the term “punishment” is used in the caption of the
statute. The legisla ture has expressly instructed the courts to disregard the captions of
statutes: “The headnotes printed in boldface type before sections and subdivisions in
editions of Minnesota Statutes are mere catchwords to indicate the contents of the section
11
or subdiv ision and are not part of the statute.” Minn. Stat. § 645.49 (2016); see also
Associated Builders & Contractors v. Ventura , 610 N.W.2d 293, 303 n.23 (Minn. 2000)
(stating that “revisor’s headnotes are not part of the statute and thus do not determine its
scope or meaning”). The plain language of section 609.377, subdivision 1, does not require
the state to prove that Murray “punished” C.M.
Thus, the evidence is sufficient to prove that Murray engaged in the conduct
required by the statute, “ unreasonable force or cruel discipline ,” because the evidence is
sufficient to prove that he used unreasonable force. See Minn. Stat. § 609.377, subd. 1.
B. Whether Murray Caused C.M.’s Bodily Harm
Murray next argues that the evidence is insufficient to prove beyond a reasonable
doubt that he caused bodily harm to C.M. He elaborates by asserting that “[t]he state
specifically argued to the jury that appellant committed malicious punishment of a chil d
by bouncing C.M. on his lap” and that such conduct “caused bodily harm” but that “the
state’s theory was not supported by the testimony of the state’s medical experts,” who
testified that C.M.’s injuries were caused by “abusive head trauma.”
Murray’s argument is based on the premise that the jury found him guilty because
of his own pre-trial statements, in which he admitted that he bounced C.M. on his knee too
vigorously. That is an incorrect premise, for two reasons. First, the prosecutor did not
limit her argument to the evidence of Murray’s pre -trial statements. The prosecutor did
mention Murray’s pre -trial statements when discussing counts 4 and 5 . But she also
referred to the evidence provided by the medical professionals who testified that C.M.’ s
injuries were the result of “non-accidental abusive head trauma,” which she previously had
12
described in greater detail. Second, even if the prosecutor’s closing argument had relied
solely on Murray’s pre-trial statements about bouncing C.M. too hard, our appellate review
would not be limited to the scope of the prosecutor’s argument. Our duty is to determine
whether the evidence is sufficient to satisfy the requirements of the applicable law, and we
are obligated to review the entire evidentiary record, not just the evidence that the
prosecutor chose to highlight in closing argument.
In its respons ive brief, t he state relies on evidence other than Murray’s pre -trial
statements. For example, the state notes that “[m]ultiple doctors and other medical
professionals involved in C.M.’s treatment testified that severe head trauma causes the
combination of injuries seen in C.M.; namely, retinal hemorrhages and subdural
hematoma.” The state’s reliance on the testimony of its medical witnesses indicates that it
seeks to establish causation with circumstantial evidence. Accordingly, we must apply the
standard of review that is appropriate for convictions based on circumstantial evidence.
See State v. Horst, 880 N.W.2d 24, 39-40 (Minn. 2016); State v. Salyers, 858 N.W.2d 156,
160-61 (Minn. 2015); State v. Flowers, 788 N.W.2d 120, 133 n.2 (Minn. 2010).
When reviewing a conviction based on circumstantial evidence, this court applies a
two-step analysis to determine the sufficiency of the evidence. State v. Moore, 846 N.W.2d
83, 88 (Minn. 2014). First, we “identify the circumstances proved.” Id. (citing State v.
Andersen, 784 N.W.2d 320, 329 -30 (Minn. 2010)). “In identifying the circumstances
proved, we assume that the jury resolved any factual disputes in a manner that is consistent
with the jury’s verdict.” Id. (citing Andersen, 784 N.W.2d at 329). Second, we “examine
independently the reasonableness of the inferences that might be drawn from the
13
circumstances proved” and “determine whether the circumstances proved are consistent
with guilt and inconsistent with any rational hy pothesis except that of guilt.” Id.
(quotations omitted). We must consider the evidence as a whole and not examine each
piece of evidence in isolation. State v. Taylor, 650 N.W.2d 190, 206 (Minn. 2002). “To
sustain a conviction based on circumstantial evidence, the reasonable inferences that can
be drawn from the circumstances proved as a whole must be consistent with the hypothesis
that the accused is guilty and inconsistent with any rational hypothesis except that of guilt.”
State v. Harris, 895 N.W.2d 592, 598 (Minn. 2017) (internal quotation omitted).
At the first step of the circumstantial -evidence analysis, we must identify the
circumstances proved that are relevant to the question whether Murray caused C.M.’s
bodily injuries. See Moore, 846 N.W.2d at 88. The relevant circumstances are as follows:
Murray is the father of C.M. On July 28, 2014, Murray was caring for C.M., who was five
months old at the time. A neighbor visited Murray’s townhome that morning, and C.M.
was normal when the neighbo r left. C.A.S.-P. placed C.M. down for a nap at noon. The
infant was uninjured when C.A.S.-P. left for work at approximately 1:00 p.m. C.M.’s
godmother visited the townhome an hour later and saw Murray holding C.M., who was
limp. The godmother immediately brought C.M. to a nearby hospital emergency room.
C.M. was unconscious and having difficulty breathing. C.M. was flown from Onamia to
Minneapolis. Medical professionals in Minneapolis diagnosed C.M. with retinal
hemorrhages and a subdural hematoma. C.M. had no history of a prior trauma. C.M. did
not sustain any bruising, fractures, or broken bones on his skull. C.M.’s brain injuries are
consistent with non-accidental abusive trauma.
14
At the second step of the analysis, we must “examine independently the
reasonableness of the inferences that might be drawn from the circumstances proved” and
“determine whether the circumstances proved are consistent with guilt.” See id.
(quotations omitted). In light of the circumstances proved, one inference is that Murray
caused C.M.’s bodily injuries by a means other than bouncing the baby on his knee, such
as by shaking the baby violently. This is a reasonable inference in light of the medical
evidence about the nature of C.M.’s injuries, the evidence that other causes are impossible
or implausible, the evidence that C.M.’s injuries were sustained shortly before he arrived
at the emergency room, the evidence that C.M. was uninjured only two hours before he
arrived at the emergency room, and the evidence that Murray was the only other person
with C.M. before the symptoms appeared.
At the second step of the analysis, we also must determine whether the
circumstances proved are “inconsistent with any rat ional hypothesis except that of guilt.”
Id. (quotation omitted). Murray cites evidence that C.M.’s injuries may have been caused
by a lack of oxygen due to the failure of the breathing tube during the airlift to Minneapolis
or by the use of CPR to revive him when he stopped breathing. Either hypothesis is too
implausible to be rational given the testimony of multiple medical professionals that C.M.’s
injuries were severe and were inconsistent with an injury caused by a lack of oxygen. The
overwhelming evidence shows that non-accidental abusive head trauma is the only rational
hypothesis concerning the cause of C.M.’s injuries , and that hypothesis is consistent with
Murray’s guilt.
15
Thus, the circumstantial evidence is sufficient to support Murray’s convic tion of
malicious punishment of a child.
II. Prosecutorial Misconduct
Murray argues that he is entitled to a new trial on the ground that the prosecutor
committed misconduct in three ways during trial: (1) by stating in opening statements that
the defense likely would call two expert witnesses, (2) by referring to the defense’s expert
witnesses in both opening statements and closing arguments as paid consultants, and (3) by
suggesting in closing arguments that jurors rely on the philosophical rule of Occam’s razor
when considering the evidence.
A. Burden of Proof
Prosecutorial misconduct may deprive a defendant of a fair trial and, thus, may
require a new trial. State v. Porter , 526 N.W.2d 359, 365-66 (Minn. 1995). Whether an
objected-to error depriv ed the defendant of a fair trial is determined according to a two-
tiered approach. State v. McDaniel , 777 N.W.2d 739, 74 9 (Minn. 2010) (citing State v.
Caron, 300 Minn. 123, 127 -28, 218 N.W.2d 197, 200 (1974)). If “the case involves less
serious prosecut orial misconduct, [the court examines ] ‘whether the misconduct likely
played a substantial part in influencing the jury to convict.’” Id. (quoting Caron, 300 Minn.
at 128, 218 N.W.2d at 200). If the case involves more serious misconduct, courts will
reverse “unless the misconduct is harmless beyond a reasonable doubt.” Id. (citing Caron,
300 Minn. at 127, 218 N.W.2d at 200).
Murray contends that the prosecutor engaged in misconduct during her opening
statement by making the following statement to the jury: “You’re also likely going to hear
16
from some doctors that have been hired by Defense Counsel to come in and review
[C.M.’s] medical records.” Murray’s counsel objected, saying, “Your Honor, we’re going
to object to that. . . . [T]he Defense has no obligation to present any evidence and for the
State to comment on potential witnesses we may or may not call is inappropriate.” The
district court sustained the obj ection. Murray ’s counsel did not request a curative
instruction and did not move for a mistrial. See State v. Ramey , 721 N.W.2d 294, 299
(Minn. 2006) (stating that “the district court is in the best position to attempt to remedy the
effects of the misconduct, and it should be given this opportunity in the first instance”).
On appeal, Murray contends that the prosecutor’s statement is misconduct because
she implied that the defense bore a burden of proof. Murray relies on cases in which
prosecutors, in closing arguments, commented on the lack of evidence offered by the
defense, which implied that the defense had a burden to introduce evidence and failed to
do so. See, e.g., State v. Coleman, 373 N.W.2d 777, 782-83 (Minn. 1985). Murray has not
cited any caselaw stating that a prosecutor engages in misconduct by stating in opening
statements that the defense is likely to call certain witnesses. M urray had included expert
witnesses on his witness list before trial. In these circumstances, we do not perceive any
prosecutorial misconduct.
Even if the prosecutor’s statement was improper, it is apparent that the statement
did not have any effect on the verdi ct. Murray’s trial counsel made a detailed objection,
and the district court sustained the objection, which likely cl arified for the jury that the
defense did not bear a burden of proof. See State v. Dobbins , 725 N.W.2d 492, 507 -08
(Minn. 2006). Also, Murray did in fact call expert witnesses to testify, which effectively
17
prevented the harm that the caselaw seeks to avoid. See State v. Mayhorn, 720 N.W.2d
776, 787 (Minn. 2006) ; Coleman, 373 N.W.2d at 782. In addition, the district court
instructed the jury on the burden of proof, both in its preliminary instructions and in its
final instructions. See, e.g., State v. Bauer, 776 N.W.2d 462, 471-72, 474-75 (Minn. App.
2009) (reasoning that jury is presumed to follow instructions if prosecutor makes improper
statement), aff’d, 792 N.W.2d 825 (Minn. 2011).
Thus, the prosecutor did not engage in misconduct in opening statements by stating
that the defense likely would call expert witnesses , and even if she did, Murray is not
entitled to a new trial because of the statement.
B. Comments on Defense Experts
Murray contends that the prosecutor engaged in misconduct by making three
comments to the jury concerning his expert witnesses, one during opening statement and
two during closing argument. Murray contends that the prosecutor’s comments disparaged
the experts and impugned their integrity.
The first statement is the same statement at issue above: “You’re also likely going
to hear from some doctors that have been hired by Defense Counsel to come in and review
[C.M.’s] medical records.” The second statement is as follows:
Another relationship that’s important to consider would be the
relationship that some of the defense experts have to the
opinion they’re brought in to give. They are here as
consultants. They were brought in for a specific reason to say
a specific thing. And that’s a relationship that you have to
consider. There’s a money relationship there.

18
The third statement is that the defense experts “haven’t seen a live client in nearly 10 years
and perform only consulting work at the request of someone for potentially a court trial or
something else.”
Murray’s trial counsel did not object to these statements. Accordingly, this court
applies a modified plain -error test. State v. Mosley, 853 N.W.2d 789, 801 (Minn. 2014) .
To prevail, Murray must establish that there was an error and that the error is plain. See
Ramey, 721 N.W.2d at 302. If Murray can establish a plain error, the burden would shift
to the state to show that the plain error did not affect his 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 judicial proceedings.” State v. Peltier, 874 N.W.2d 792,
804 (Minn. 2016) (alteration in original) (quotations omitted).
Murray relies on three cases in which the supreme court concluded that prosecutors
made inappropriate comments about defense experts. Each of those cases is
distinguishable from this case. In State v. Wahlberg, 296 N.W.2d 408 (Minn. 1980), t he
prosecutor commented in closing argument that a defense expert was paid to give a
diagnosis favorable to the defendant. Id. at 419-20. The supreme court reasoned that the
prosecutor’s remarks “were improper” because “[t]hey were not justified by the evidence.”
Id. at 420. In State v. Bailey, 677 N.W.2d 380 (Minn. 2004), the prosecutor commented in
opening statements that a defense expert “continues to walk around the country
advocating” for a particular theory “because he gets paid for it” and reiter ated in closing
arguments that “in fact, all he is, is a paid witness by the Defense in criminal cases.” Id. at
404. The supreme court reasoned that “it was improper for the prosecutor to go beyond
19
the testimony of the expert witness by making these references to the witness’s character.”
Id. Likewise, in State v. Griese, 565 N.W.2d 419 (Minn. 1997), the prosecutor described
a defense expert with inflammatory language and suggested that the defense had improper
motives in hiring the expert. Id. at 426-28. In this case, the prosecutor’s opening statement
was a simple statement of fact , and t he prosecutor’s closing argument was appropriately
focused on the jury’s task of assessing the cr edibility of witnesses . Furthermore , the
prosecutor’s comments were much less inflammatory and more respectful and did not go
beyond the evidentiary record. In fact, the prosecutor’s comments in closing argument
were based on evidence that she had elicited from the defense experts during cross -
examination.
Thus, the prosecutor did not engage in misconduct by making disparaging
comments about the defense experts.
C. Reference to Occam’s Razor
Murray contends that the prosecutor engaged in misconduct during closing
argument by referring to the principle known as Occam’s razor. The relevant part of the
prosecutor’s closing argument is as follows:
[T]he simplest answer is often the most likely. The solution
that requires the least amount of assumptions to get there and
the most factual representations to get there i s the correct or
most likely one. . . . Let’s say that 2 trees fall down on a windy
evening. . . . [O]ne explanation would be well, it’s a windy
evening, the wind knocked them over. Another explanation
would be it’s possible that a meteorite came down and hit one
tree just right so that it fell into the other tree just right and the
other tree then fell down just right and both trees fell down on
the same windy evening. . . . The idea of Occam’s razor is that
common sense tells us that the wind explanation is more
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reasonable. We didn’t have to assume very much to get there;
it was a windy evening, both trees blew over, the wind knocked
them over . There’s no need to assume all that stuff in the
middle. Just because something is possible or remotely likely,
doesn’t mean that it’s reasonable.

Murray contends that this part of the prosecutor’s closing argument is improper
because it tends to dilute the state’s burden of proof. Murray relies on State v. Strommen,
648 N.W.2d 681 (Minn. 2002), in which the prosecutor urged the jury to “weigh the story
in each hand and decide which one is most reasonable, which one makes the most sense.”
Id. at 690. The supreme court in Strommen reasoned that th e prosecutor made “a
misstatement of the state’s burde n to prove each element of the crime charged beyond a
reasonable doubt,” which “may have played a role in the decision to convict.” Id.
The state contends that the reference to Occam’s razor is not equivalent to the
misstatement in Strommen, which was necessarily inconsistent with the state’s burden of
proof. We agree with the state that the prosecutor’s reference to Occam’s razor is different
from the misstatement in Strommen. The prosecutor did not make a statement that is
contrary to the state’s burden of proof or contrary to the jury’s task of weighing conflicting
evidence. Both before and after the comment at issue, the prosecutor properly stated that
the state bears the burden of proving each element of the charged offense s beyond a
reasonable doubt. In addition, the district court instructed the jury on the state’s burden to
prove each element beyond a reasonable doubt.
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Thus, the prosecutor did not engage in misconduct by referring to the principle of
Occam’s razor.1
Affirmed.

1We note that our conclusion is consistent with the conclusions reached by other
panels of this court that have considered similar challenges to similar closing arguments.
See State v. Tabaka , No. A05-1899, 2007 WL 1120523, *8 (Minn. App. Apr. 17, 2007)
(concluding that prosecutor’s reference to Occam’s razor was “crude but accurate
description on how to draw an inference from circumstantial evidence”) , review denied
(Minn. June 27, 2007); State v. Tykwinski, No. C3-99-1608, 2000 WL 1051919, *4 (Minn.
App. Aug. 1, 2000) (concluding that prosecutor’s reference to Occam’s razor was harmless
error because burden of proof was correctly stated three other times during trial) , review
denied (Minn. Sept. 27, 2000) . We also note that unpublished opinions of this co urt are
not precedential. See Minn. Stat. § 480A.08, subd. 3(c) (2016); Vlahos v. R&I Constr.,
Inc., 676 N.W.2d 672, 676 n.3 (Minn. 2004); State v. Porte , 832 N.W.2d 303, 312 n.1
(Minn. App. 2013).