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This opinion will be unpublished and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
A17-0513

State of Minnesota,
Respondent,

vs.

Patricia Jean Ryerson,
Appellant.

Filed December 18, 2017
Affirmed
Florey, Judge

Hennepin County District Court
File No. 27-CR-16-25226

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

Steven M. Tallen, Medina City Attorney, Tallen & Baertschi, Minneapolis, Minnesota (for
respondent)

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

Considered and decided by Connolly, Presiding Judge; Jesson, Judge; and Florey,
Judge.
U N P U B L I S H E D O P I N I O N
FLOREY, Judge
On appeal from her conviction of disorder ly conduct, appellant argues that (1) the
district court committed plain error by adm itting evidence of her prior behavior at a
2
restaurant and (2) the prosecutor committ ed prejudicial misconduct during closing
arguments when he misstated the evidence. We affirm.
FACTS
Appellant Patricia Jean Ryerson was issued a citation for disorderly conduct, under
Minn. Stat. § 609.72, subd. 1(3) (2016), after the operator of a restaurant complained to
police that a customer had caused a disturba nce. The owner contacted the police, but by
the time officers arrived, the customer had left the restaurant in a taxi. An officer contacted
the taxi company, but the company was unable to provide the officer with the name of the
driver or passenger. The next day, the officer received appellant’s address and name from
an individual involved in an unrelated civil matter. The individual told the officer that he
frequently gave appellant rides to the restaura nt. The officer issued appellant a trespass
notice and citation for disorderly contact. Appellant denied having been to the restaurant
in three years. The officer noted that appellant matched the witnesses’ descriptions of the
customer who had caused the disturbance.
At trial, the owner of the restaurant identified appellant as the person at the
restaurant on the day of the inci dent. She testified that appe llant had yelled at one of her
employees. She testified that she asked appell ant to leave when she saw appellant taking
too much Parmesan for her pizza slice. She testified that she had seen appellant at the
restaurant approximately eight times and that appellant is “in the habit of emptying out all
the Parmesan shakers in the place into her container of one pizza slice.” The owner testified
that appellant began yelling and swearing at her when she asked her to leave and that
appellant also cursed at multiple customers. The owner testified th at potential customers
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left the restaurant during this time and other customers encouraged the woman to leave the
restaurant.
The assistant manager also identified appella nt at trial as the person who caused a
disturbance at the restaurant. She testified that she has had six interactions with appellant,
and that appellant used vulgar language du ring those interactions, complained about the
food and cost, would “dump Pa rmesan” into her food contai ner, and would arrive at the
restaurant in a taxi. She testified that othe r employees had also witnessed appellant curse
at them and take things while in the restaurant. She testified that, on the day of the incident,
appellant entered the restaurant and compla ined about the food options and cost. She
testified that appellant used the “F-word” and “B-word” and said “sh-t a few different times
to a few . . . other customers.” She tes tified that she witnessed appellant have a
confrontation with two different customers, one of whom had young children with her. She
testified that appellant called the customer a “sh--ty mother” who “was being a b---h.”
A customer also testified during the trial. She identified appellant as the person with
whom she interacted. She testified that sh e intervened when appellant called another
customer a “piece of sh-t” and complained about the employees. She testified that
appellant then called her “an ugly piece of sh-t.” The customer testified that the incident
left her five-year-old son “fla bbergasted” and that he talked about the incident for days
afterward.
The district court instructed the jury that disorderly conduct includes conduct that is
offensive, obscene, abusive, bo isterous or noisy, or abusiv e language that qualifies as
“fighting words.” During closing arguments, the state argued that appellant’s conduct
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alone met the elements of disorderly conduct, but that appellant also used “fighting words”
that caused an immediate breach of the peace. The state also discussed the evidence that
identified appellant as the person who had caused a disturbance at the restaurant. The state
referenced the witnesses’ identifications of appellant based on their past experiences with
her and her pattern of behavior. The state also indicated that a taxi driver had repeatedly
taken appellant to the restaurant. The jury returned a guilty verdict.
This appeal followed.
D E C I S I O N
I.
Appellant argues that the district court plainly erred by permitting the prosecutor to
offer evidence of appellant’s pr ior visits and behavior at th e restaurant without providing
notice of its intent to offer the evidence under Minn. R. Evid. 404(b).
We typically review a district court’s admission of evidence of a defendant’s prior
bad acts for an abuse of discretion. Ture v. State, 681 N.W.2d 9, 15 (Minn. 2004). But
because appellant did not object to admission of the evidence on rule 404(b) grounds during
the trial, we apply a plain-error standard of review on appeal. See Minn. R. Crim. P. 31.02
(permitting appellate review of issues not rais ed to the district c ourt for “[p]lain error
affecting a substantial right”); State v. Word, 755 N.W.2d 776, 781 (Minn. App. 2008).
Under the plain-error standard, the defendant must establish (1) an error, (2) that is
plain, and (3) that affects substantial rights. State v. Griller, 583 N.W.2d 736, 740 (Minn.
1998). “An error is plain if it is clear or obv ious, and usually this is shown if the error
contravenes case law, a rule, or a standard of conduct.” State v. Davis, 735 N.W.2d 674,
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681 (Minn. 2007) (quotation om itted). If the three prongs of the plain-error test are
satisfied, we will reverse if it is necessary to ensure the fairness and integrity of the judicial
proceedings. Griller, 583 N.W.2d at 740.
Minn. R. Evid. 404(b) prohibits the use of evidence of another crime, wrong, or act
“to prove the character of a person in order to show action in conformity therewith.” Such
evidence, commonly known as Spreigl evidence in Minnesota, is generally excluded
because “it might . . . suggest[] that the defendant has a propensity to commit the crime or
that the defendant is a proper candidate fo r punishment for his or her past acts.” State v.
Fardan, 773 N.W.2d 303, 315 (Minn. 2009) (quotations omitted); see State v. Spreigl, 272
Minn. 488, 490, 139 N.W.2d 167, 169 (19 65) (providing the common-law exclusionary
rule regarding prior crimes). But evidence of another crime, wrong, or act is admissible
for limited purposes, including, among others, proof of motive, opportunity, intent, or
identity. Minn. R. Evid . 404(b). The state must give no tice of its intent to offer such
evidence, explain its relevance, support the offer with clear and convincing evidence, and
demonstrate that the evidence’s probative value outweighs its prejudicial effect. Id.; State
v. Ness, 707 N.W.2d 676, 685-86 (Minn. 2006).
Appellant argues that the evidence should have been excluded at trial because the
state did not follow the procedures for the admission of Spreigl evidence. The state argues
that appellant’s behavior at the restaurant on previous occasions was not criminal in nature
and was not offered to prove that appellant had a propensity “to swear and behave badly.”
The state argues that the evidence was releva nt to demonstrate that the employees knew
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and recognized appellant on the day of the in cident, since appellant claimed she had not
been at the restaurant for three years.
To be excluded under rule 404(b), an “act” need not constitute a crime. State v.
McLeod, 705 N.W.2d 776, 787-88 (Minn. 2005). Rather, the act is required to have been
a “bad” act. Id. The supreme court has established that evidence is not Spreigl evidence
if “there is nothing per se wrong” with the act. See Ture, 681 N.W.2d at 17 (concluding
that evidence of the defendant’s collection of personal information about women was not
bad-act evidence because there was nothing per se wrong with the habit).
The challenged evidence esta blished that appellant frequented the restaurant and
complained, used vulgar language, and took ex cessive amounts of Parmesan while there.
But there is nothing intrinsically wrong with these acts. Th e employees’ descriptions did
not suggest that on prior occasions her behavi or had escalated to the point of yelling and
engaging in abusive and obs cene language directed at mu ltiple customers within the
restaurant. Because we are not persuaded that the prior behavior was a bad act, the state
was not required to comply with rule 404(b)’s procedural requirements before offering the
evidence.
Even if appellant’s prior behavior qualified as bad acts under rule 404(b), appellant
has not satisfied her burden of establishing that her substantial rights were affected. “An
error affects substantial rights if there is a reasonable likelihood that it substantially affected
the verdict.” State v. Rossberg, 851 N.W.2d 609, 618 (Minn. 2014) (quotation omitted).
We consider three factors when determining if erroneously admitted rule 404(b) evidence
significantly affected a verdict: (1) whether other evidence was presented on the issue for
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which rule 404(b) evidence was offered; (2) whether the court gave a limiting instruction;
and (3) whether the state dwelled on the evidence in its closing argument. Fardan, 773
N.W.2d at 320.
Here, the evidence was offered to demonstr ate that the witnesses were familiar with
appellant on the day of the inci dent and could adequately iden tify her at the trial. Even
without evidence of appellant’s prior behavio r, three eyewitnesses identified appellant at
trial as the person who had caused a disturbance at the restaurant. The state did not dwell
on the evidence during closing arguments, only stating that the prior cheese behavior and
complaints were “very unique, very memorable” to the employees. The district court did
not provide, sua sponte, a limiting instruction. But the supreme court has previously stated
that a district court’s failure to sua sponte instruct the jury is not reversible error. State v.
Vick, 632 N.W.2d 676, 687 (Minn. 2001). On the record as a whole, there is no reasonable
possibility that the challenged evidence substantially influenced the jury’s verdict.
II.
The next issue raised by appellant is whet her the prosecutor engaged in prejudicial
misconduct. Appellant argues that the prosecutor misstated the evidence when he argued,
“[T]here was a statement from an iHail taxi dr iver that [the officer] spoke with and yeah,
there was repeatedly taking this person to [the restaurant]. . . . [A]n iHail taxi was the
vehicle that the defendant came in, so it all really adds up very neatly.”
The right to due process of law includes the right to a fair trial, and the right to a fair
trial includes the absence of prosecutorial misconduct. Spann v. State, 704 N.W.2d 486,
493 (Minn. 2005); State v. Ferguson , 729 N.W.2d 604, 616 (Minn. App. 2007), review
8
denied (Minn. June 19, 2007). A prosecutor engages in misconduct if he or she
intentionally misstates the evid ence during closing argument. State v. McArthur , 730
N.W.2d 44, 53 (Minn. 2007).
Appellant did not object to the prosecutor’s alleged misstatement. Accordingly, we
apply a modified plain-error test. State v. Carridine, 812 N.W.2d 130, 146 (Minn. 2012).
To prevail, appellant must establish that there was an error and that the error is plain. State
v. Ramey, 721 N.W.2d 294, 302 (Minn. 2006). If appellant establishes plain error, the
burden shifts to the state to show that the pl ain error did not affect appellant’s substantial
rights. Id. “If all three prongs of the test are me t, 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 (M inn. 2016) (quotation omitte d). We will reverse a
conviction “only if the [prosecutorial] misconduct, when considered in light of the whole
trial, impaired [appellant’s] right to a fair trial.” State v. Powers , 654 N.W.2d 667, 678
(Minn. 2003). In reviewing allegations of prosecutorial miscond uct during a closing
argument, “we look to the closing argument as a whole, rather than to selected phrases and
remarks.” State v. Graham, 764 N.W.2d 340, 356 (Minn. 2009) (quotation omitted).
The prosecutor’s comments do appear to mi sstate the evidence. The officer testified
that an individual gave him appellant’s firs t name and address “and told [him] that he
frequently gave her rides to [the restaurant].” The officer did not testify that the individual
was an iHail taxi driver. But nothing in the record indicates that the prosecutor
intentionally misstated the record . For example, in State v. Mayhorn, the supreme court
considered whether a prosecutor intentio nally misstated evidence during the cross-
9
examination of the defendant. 720 N.W.2d 776, 787-88 (Minn. 2006). The supreme court
concluded that the prosecutor intentionally misstated a witness’s testimony because the
admissibility of the subject of the testimony ha d been previously argued to the district
court, and therefore the prosecutor should have been sufficiently familiar with the
testimony. Id. at 788.
But even if the comments were improper, they do not require reversal. Cf. State v.
Yang, 627 N.W.2d 666, 679 , 683 (Minn. App. 2001) (c oncluding that the prosecutor
misstated the evidence during closing ar guments, but “minor misstatements of
evidence . . . do not warrant reversal”), review denied (Minn. July 24, 2001). When
determining whether the state has met its burden of establishing that the error did not affect
the defendant’s substantial rights, “we consid er: (1) the strength of the evidence against
[appellant]; (2) the pervasiveness of the erroneous conduct; and (3) whether [appellant] had
an opportunity to rebut any improper remarks.” Peltier, 874 N.W.2d 805-06.
The state argues that there is overwhelmi ng evidence identifying appellant as the
person who caused the disturbance. We agree. Three eyewitnesses identified appellant as
the person at the restaurant, and the officer testified that appellant matched the description
that the witnesses had given him, despite vigorous questioning about discrepancies in
appellant’s appearance. The misstatement wa s not pervasive. It was a brief comment
during the prosecutor’s discussion of all of th e evidence that proved identity. Moreover,
the misstatement upon which appellant relie s was rebutted by defe nse counsel during
closing arguments when counsel drew attenti on to the inconsistency and argued that the
officer should have investigated the issue more thoroughly.
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Based on the record before us, we conclu de that the prosecutor’s misstatements did
not deny appellant her right to a fair trial.
Affirmed.