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This opinion will be unpublished and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
A17-0324

State of Minnesota,
Respondent,

vs.

Shane Lee Olson,
Appellant.

Filed January 16, 2018
Affirmed
Halbrooks, Judge

Stearns County District Court
File No. 73-CR-16-2963

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

Cynthia R. Kirchoff, St. Cloud City Attorney, Mark C. Hansen, Assistant City Attorney,
St. Cloud, Minnesota (for respondent)

Mark D. Nyvold, Fridley, Minnesota (for appellant)

Considered and decided by Halbrooks, Presiding Judge; Schellhas, Judge; and Kirk,
Judge.
U N P U B L I S H E D O P I N I O N
HALBROOKS, Judge
Appellant challenges his conviction of misdemeanor theft based on his allegation of
prosecutorial misconduct. We affirm.

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FACTS
Appellant Shane Lee Olson lived in a house in St. Cloud with his wife, teenage
daughter, and brother. M.V. lived for seven years in a rental house located across the alley
from Olson. M.V. moved out in December 2015. After obtaining permission from the
manager of the rental property, M.V. left her basketball hoop in the driveway for the next
family moving in.
C.E., her daughter, and her teenage son , M.W., moved into the r ental house on or
around January 15, 2016. At approximately 11:00 p.m. on January 17, 2016, M.W.
observed a man walk into their backyard, grab the basketball hoop, and drag the hoo p by
its rim across the alley and into a different backyard.
The next day, a shouting match unrelated to the basketball hoop developed in the
alley between C.E., Olson, and other neighbors . Two police officers, Susan Proshek and
Mike Warner, responded to the incident . Before Officers Proshek and Warner left, C.E.
advised Officer Prohsek that Olson had taken the basketball hoop from C.E.’s driveway
the night before. C.E. identified a basketball hoop in Olson’s driveway as the one that was
taken.
Officer Proshek saw two basketball hoops on Olson’s driveway and questioned him.
Olson admitted taking the basketball hoop from C.E.’s house. Officer Warner heard Olson
admit, “Yes, I took the basketball hoop, it was mine before. I took it back.” Officer
Proshek subsequently confirmed with M.W., C.E., M.V., and the property manager that
Olson did not own the basketball hoop or have permission to take it.

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At trial, Olson testified that he did not take the basketball hoop. He stated that when
he told the officer that he had taken it, he was being sarcastic. At the close of evidence,
the prosecutor began his closing argument with:
[A]s I think about the facts that came before this, the testimony,
I was thinking of some of my experiences in Afghanistan
where, in that case, part of the mission of the government was
to try to build rule of law. And we talk about that all the time
here and what a blessing it is to have the rule of law.

And over there, there was a person in a rural part by
himself in his hut who was under surveillance for a few days
and eventually searched and they found contraband of an IED-
type nature. And in part of the job was to build the rule of law.
He was taken in front of the Afghan court systems where they
have a judge, not a jury, and the people testified, the soldiers
testified, the Afghan enforcement people testified. It was
there, they found it, there was pictures of it.

And the person, the defendant, testified and said, “I’d
never do this,” or something along those lines, and his relatives
were there and the judge found him not guilty. And eventually
I talked to the judge and I’m like, “It was there, h ow did you
do it?” He was like, “Well, maybe the angel Gabriel put it
there.” And I submit to you, that’s a struggl e with the rule of
law and that’ s going to be a struggle with the country with
Afghanistan.

But we are blessed here because the Judge has just read
much of the rule of law. And I ask you to go through this
because first thing, as we look at the elements, what do we
know?

The prosecutor then stated the elements of the crime of misdemeanor theft and
highlighted the evidence that supported a conviction, including corroborating testimony by
the state’s witnesses, confli cting testimony by the defense witnesses, and Olson’s

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admission that he took the basketball hoop . The prosecutor ended his closing argument
with:
Look at the thoroughness of the police because they did not
rush to judgment here, they did not issue a ticket there. They
investigated it and let the process work out. I submit to you
that’s the rule of law at work. I submit there is credible
evidence beyond a reasonable doubt t hat [Olson] took this
basketball hoop.

Now, as we go forward, they could argue oh, the
garbage people took it. Well, that does not make sense. They
could argue somebody else took it. There’s no evidence of that
because [M.W.] and [C.E.] knew it was t here so it was
obviously there when they moved in, plus they said they saw it
in [Olson]’s yard.

And then you have [Olson]’s admissions at the time. So
when we come to the rule of law and what I submit makes this
country great, is the Judge gives it to you. Because the defense
can argue anything fanciful and capricious. And you look at
places where struggling is, I submit they would say, “Well the
Angel Gabriel did it.” That’s not the case here. In this case
[Olson] took that hoop. Thank you.

During the defense’s closing, Olson’s counsel attempted to create doubt by arguing
that (1) someone else took the basketball hoop , (2) the police did not conduct a thorough
investigation, and (3) M.W. could not see Olson through his kitchen window . The
prosecutor did not mention the Afghanistan story during his rebuttal argument. After a
two-day trial involving ten witnesses, the jury convicted Olson of misdemeanor theft under
Minn. Stat. § 609.52, subd. 2(a)(1) (2014), with reference to Minn. Stat. § 609.52, subd.
3(5) (2014). This appeal follows.

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D E C I S I O N
Olson, who claims on appeal that the prosecutor committed misconduct, did not
object to the prosecutor’s closing argument during trial. Therefore, our standard of review
is one of modified plain error. State v. Ramey, 721 N.W.2d 294, 300 (Minn. 2006). Olson
has the burden to establish that the prosecutor committed an error that contravenes caselaw,
a rule, or a standard of conduct, or is otherwise plain. Id. at 302. If Olson demonstrates
plain error, the burden shifts to the state to demonstrate that its misconduct did not affect
Olson’s substantial rights. Id. Misconduct does not affect a defendant’s substantial rights
if “there is no reasonable likelihood that the absence of the misconduct in question would
have had a significant effect on the verdict.” Id. (quotations omitted). We will reverse a
conviction due to prosecutorial misconduct only if, in light of the whole trial, the
misconduct impaired the defendant’s right to a fair trial. State v. Powers, 654 N.W.2d 667,
678 (Minn. 2003).
Olson contends that the prosecutor committed plain error by (1) referencing non -
record, personal experiences and asserting his own credibility; (2) conveying personal
knowledge as an unsworn witness; and (3) diverting the jury from its duty by disparaging
Olson’s defense theory. The state maintains that the prosecutor’s story “was relevant to
rebutting defense themes mentioned throughout the trial.”
Relying on ABA, Criminal Justice Standards for the Prosecution Function ,
§§ 3-6.8(a), 3-6.9 (4th ed. 2015) ( ABA Standards), Olson first argues that the prosecutor
improperly stated non-record facts during his closing argument, reasoning the argument
“had no connection to the events contained in the trial record .” Prosecutors have

6
“considerable latitude” during closing argument and are not required “to make a colorless
argument.” State v. Williams , 586 N.W.2d 123, 127 (Minn. 1998). But although “ the
state’s argument need not be ‘colorless,’ it must be based on the evidence produced at trial,
or the reasonable inferences from that evidence. ” State v. Morton, 701 N.W.2d 225, 237
(Minn. 2005) ; see ABA Standards , § 3-6.8(a) (“ In closing argument to a jury, . . . the
prosecutor may argue all reasonable inferences from the evidence in the record.”); see also
ABA Standards, § 3-6.9 (“[T]he prosecutor should not knowingly refer to, or argue on the
basis of , facts outside the record , unless such facts are m atters of common public
knowledge based on ordinary human experience, or are matters of which a court may take
judicial notice.”).
Here, the prosecutor did not suggest to the jurors that they rely on or make inferences
from the underlying facts of his story arising out of his military service in Afghanistan.
The prosecutor, instead, responding to Olson’s theory that Olson did not take the basketball
hoop, used the story as a way to underscore the importance of the jury’s role in applying
the rule of law and, in so doing, addressed each element of the crime of misdemeanor theft
with evidence that supported each one.
Additionally, t he district court properly instructed the jury on the elements of
misdemeanor theft and the the state’s burden to prove each element beyond a reasonable
doubt. The district court further instructed the jury that the attorneys’ arguments were not
evidence. We “presume that the jury followed the [district] court’s instruction.” State v.
Taylor, 650 N.W.2d 190, 207 (Minn. 2002); see State v. Gassler , 505 N.W.2d 62, 69

7
(Minn. 1993) (concluding that no error occurred where district court instructed the jury that
arguments were not evidence).
Second, Olson argues the prosecutor asserted his own credibility and put himself in
the position of an unsworn witness, reasoning that the prosecutor expressed his personal
opinion and conveyed facts without personal knowledge . We disagree. “The personal
opinion rule is designed to prevent . . . a prosecutor . . . from becoming an unsworn witness
and otherwise personally attaching himself . . . to the cause which he . . . represents.” State
v. Everett, 472 N.W.2d 864, 870 (Minn. 1991). The prosecutor did not inject his personal
opinion that Olson took the basketball hoop or state to the jury that Olson was not credible.
Third, Olson contends that the prosecutor diverted the jury from its duty and unfairly
disparaged Olson’s defense strategy, arguing that the prosecutor sought “to have the jurors
believe that if they acquitted Olson, they would be acting as contrary to the rule of law as
had the judge in the Afghan trial .” “While the prosecutor is free to argue that there is no
merit to a particular defense or argument, and prosecutors are free to anticipate arguments
defense counsel will make, the prosecutor may not generally belittle a particular defense
in the abstract. ” State v. Ashby , 567 N.W.2d 21, 28 (Minn. 1997) . “Prosecutors act
improperly when they suggest that the arguments of defense counsel are part of some so rt
of syndrome of standard arguments that one finds defense counsel making in cases of this
sort.” State v. Rucker , 752 N.W.2d 538, 553 (Minn. App. 2008) (quotations omitted) ,
review denied (Minn. Sept. 23, 2008).
But a prosecutor may attack a defense theory on its merits. See Ashby, 567 N.W.2d
at 28 (concluding that prosecutor’s comments that “ allegations are easy to make, but the

8
jury must look at the evidence” were not improper but instead “more properly characterized
as addressing the defense’s main theory—that someone else committed the crime”). Here,
the prosecutor told the story of the Afghan trial not to disparage defense counsel but rather
to combat Olson’s theory that someone else had taken the basketball hoop. The prosecutor
then painstakingly discussed how eyewitness trial testimony undermined that theory.
Olson also asserts that “the jury did not fairly evaluate the evidence and hold the
prosecution to its burden of proof beyond a reasonable doubt.” We disagree. T he
prosecutor took the jury through each element of the offense, discussed what testimony
supported each element, and argued that there was “credible evidence beyond a reasonable
doubt that the defendant took this basketball hoop .” (Emphasis added.) The prosecutor
did not misstate the state’s burden of proof. See State v. Hunt, 615 N.W.2d 294, 302 (Minn.
2000) (concluding that a prosecutor’s closing argument in which the prosecutor made “a n
analogy to the ancient Greek juries, the substance of which implied that Greek juries would
place a stone on either side of a scale for each successful arg ument by one party or the
other” did not constitute plain error). Because the prosecutor did not rely on non-record
evidence, inject himself as an unsworn witness, or disparage Olson’s defense theory, Olson
has not met his burden to demonstrate plain error.
But even assuming that the prosecutor’s argument constituted plain error, any error
did not prejudice Olson. “An error is prejudicial if there is a reasonable likelihood that the
error had a significant effect on the jury’s verdict.” State v. Cao , 788 N.W.2d 710, 717
(Minn. 2010). On review, we “consider the strength of evidence against the defendant, the
pervasiveness of improper suggestions, and whether the defendant had an opportunity to

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(or made efforts to) rebut the improper suggestions.” Id. M.V. testified she did not give
Olson permission to take the basketball hoop. M.W. provided eyewitness testimony that
Olson took the basketball hoop. Officer Proshek and C.E. both testified that they saw the
basketball hoop in Olson’s yard . And Officer Proshek and Officer Warner testified that
Olson admitted to taking the basketball hoop. The evidence supports Olson’s conviction.
Cao, 788 N.W.2d at 717-18.
In determining whether misconduct affected a defendant’s substantial rights, we
review the ar gument as a whole. State v. Graham, 764 N.W.2d 340, 356 (Minn. 2009).
Considering the length of the Afghan story relative to the entire argument, the prosecutor’s
27-line story within a 227-line argument was not pervasive. See Cao, 788 N.W.2d at 718
(determining that the prosecutor’s statement covering 3 lines of a 15-page closing argument
did not affect the defendant’s substantial rights) . We therefore conclude that no
prosecutorial misconduct occurred.
Affirmed.