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This opinion will be unpublished and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
A17-0760

State of Minnesota,
Respondent,

vs.

Yassin Ali Abdi,
Appellant.

Filed July 9, 2018
Affirmed
Florey, Judge

Olmsted County District Court
File No. 55-CR-15-16

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

Mark A. Ostrem, Olmsted County Attorney , Jennifer D. Plante, Associate County
Attorney, James P. Spencer, Senior Assistant County Attorney, Rochester, Minnesota (for
respondent)

Eric L. Newmark, Newmark Storms Law O ffice, L.L.C., Minneapolis, Minnesota (for
appellant)

Considered and decided by Rodenberg, Presiding Judge; Halbrooks, Judge; and
Florey, Judge.
U N P U B L I S H E D O P I N I O N
FLOREY, Judge
In this direct appeal from a judgment of conviction, appellant argues that the
prosecutor committed misconduct during his direct examination of a witness by implying

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personal knowledge of the witness’s truthfulness and in closing argument by arguing facts
not in evidence concerning that witness’s truthfulness. We affirm.
FACTS
Appellant Yassin Ali Abdi picked up his brother A.A. from work on New Year’s
Eve 2014. Appellant became angry because he had to wait for A.A. to finish his shift as a
cashier. He called A.A. and told him to “hurry up.” When A.A. left work and got into the
car with appellant, the two argued. Appellant began driving. At some point, appellant
snatched a cigarette out of A.A.’s hand, and A.A. spat on appellant. Appellant stopped the
car, and a physical altercation ensued.
Though it was dark ou tside, another driver observed pa rts of the altercation. She
saw the driver “hitting someone in the car” with his fist. She then saw individuals get out
of the car and one of the individuals being kicked while on the ground. The observer called
911, as did a second passerby. Law enfo rcement responded and interviewed A.A., who
stated that appellant punched, kicked, and choked him, and trie d to kill him. A.A. stated
that he could not breathe “for two minutes.” A.A. had injuries to his face and neck.
On January 2, 2015, appellant was charge d with three counts: felony domestic
assault by strangulation, under Minn. Stat. § 609.2247, subd. 2 (2014); misdemeanor
domestic assault (bodily harm), under Minn. Stat. § 609.2242, subd . 1(2) (2014); and
misdemeanor domestic assault (fear), under Minn. Stat. § 609.2242, subd. 1(1) (2014).
A jury trial was held on April 20 and 21, 2016. A.A. testified that appellant punched
him and that he punched appellant back. He acknowledged that he told law enforcement
that appellant tried to choke him, but qualif ied his prior statement by stating that he was

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“so mad” and that he did not know what he ha d told police. He testified that he “was
pretending [to be] a victim” and that appellant did not choke him.
During A.A.’s direct examination, the district cour t judge excused the jury after
being informed of a potential issue in the cour troom gallery. After the jury was excused,
the judge told the par ties that a woman in the gallery was “making signals or actually
talking to [A.A.].” The judge admitted that he had not seen all of the conduct but that a
woman was observed making a signal with her hand. The judge told the woman to cease
such conduct. The jury then returned, and the trial resumed.
The jury returned guilty verd icts on all three of the charged offenses. The district
court convicted appellant of domestic assault by strangulati on and sentenced him to 364
days in jail, which constituted a durational de parture. The district court did not enter
convictions on the lesser counts. This appeal followed.
D E C I S I O N
Appellant asserts that he is entitled to a new trial because of three instances of
prosecutorial misconduct, one during the di rect examination of A.A., and two during
closing-argument rebuttal. Appellant did not object to the alleged misconduct.
“[B]efore an appellate court reviews an unobjected-to error, there must be (1) error;
(2) that is plain; and (3) the erro r must affect substantial rights.” State v. Griller , 583
N.W.2d 736, 740 (Minn. 1998). For unobject ed-to prosecutorial misconduct, our review
is under a modified plain-error standard. State v. Ramey, 721 N.W.2d 294, 299-300 (Minn.
2006). If an appellant establishes that the prosecutorial misconduct is plain error, then the
burden shifts to the state to show that the misconduct di d not affect the appellant’s

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substantial rights. Id. at 302. This requires a show ing “that there is no reasonable
likelihood that the absence of the misconduct in question wo uld have had a significant
effect on the verdict of the jury.” Id. (quotations omitted). If all prongs of the modified
plain-error test are met, an appellate cour t “then assesses whether the error should be
addressed to ensure fairness and the integrity of the judicial proceedings.” Id.
I. Direct examination
A.A.’s trial testimony differed from hi s statement to law enforcement on New
Year’s Eve 2014. The prosecutor challenged A.A.’s trial testimony. During the direct
examination of A.A., the following exchange took place:
PROSECUTOR: And in fact we did meet in March,
specifically on March 9, 2016?
A.A.: Yes.
PROSECUTOR: A little over a month ago; is that right?
A.A.: Yes.
PROSECUTOR: And you at that time told me that your
family was against you and angry at you.
Didn’t you tell me that?
A.A.: I never say that. I don’t know you, but
the—you may misunderstand me or
somehow, but I was saying my mom,
she’s not happy about the whole thing,
how we started, but you maybe
understand wrong way.

Appellant asserts that this exchange evidences misconduct because the prosecutor implied
that he had personal knowledge about whether A.A. was telling the truth at trial. We
discern no plain-error misconduct in the exchange.
A prosecutor may not interject personal opi nion, become an unsworn witness, or
“personally attach[] himself or herself to the cause which he or she represents.” State v.

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Everett, 472 N.W.2d 864, 870 (Minn. 1991). In the challenged exchange, there is no such
conduct that constitutes a clear or obvious error.
The prosecutor asked leading questions. Leading questions generally should not be
used on direct examination. Minn. R. Evid. 611(c). Howe ver, the unobjected-to leading
questions did not render the exchange plainly erroneous. Whether to permit leading
questions on direct examinati on depends on the circumstances of each case, and it is an
issue best left to the discretion of the district court. State v. Axilrod, 248 Minn. 204, 209,
79 N.W.2d 677, 681 (1956). The prosecutor’s limited use of unobjected-to leading
questions did not violate “clear or established standards of conduct.” State v. McCray, 753
N.W.2d 746, 751 (Minn. 2008) (quotation omitted).
The questions concerned a prior conversa tion between the prosecutor and A.A.
Appellant fails to offer caselaw indicating that a prosecutor’s reference to a prior
conversation with a witness during the examination of that witness constitutes misconduct.
The prosecutor did not insert his personal op inion or challenge the veracity of A.A.’s
response. We discern no plain error.
Appellant cites one case, State v. Richardson, 514 N.W.2d 573 (Minn. App. 1994),
to support his assertion that “[i]t is improper for a prosecutor to imply he or she has personal
knowledge [about] whether a witness is telling the truth.” In Richardson, a case pervaded
with misconduct, the prosecutor asked a lawyer-witness at trial if he was aware that lawyers
cannot ethically call witnesses who are going to commit perjury. 514 N.W.2d at 578. This
court determined that the question was misconduct because it “implied to the jury that the
witnesses called by the prosecution to prove th e state’s case were telling the truth” and

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“implied that the prosecutor had personal knowledge that [a witness] was telling the truth.”
Id. This case is distinguishable from Richardson, in which the prosecutor was effectively
vouching for the state’s witnesses. Here, the prosecutor offered no personal opinion about
the veracity of A.A’s testimony. He merely presented A.A. with a question concerning
family pressures and allowed A.A. to freely answer.
Even if the exchange constituted plain error, appellant’s substantial rights were not
affected. In determining whether substan tial rights were affected, appellate courts
“consider the strength of the evidence against the defendant , the pervasiveness of the
improper suggestions, and whether the defendant had an opportunity to (or made efforts
to) rebut the improper suggestions.” State v. Davis, 735 N.W.2d 674, 682 (Minn. 2007).
To the degree that the lim ited exchange concerned the credibility of A.A.’s trial
testimony, other more illustrati ve evidence indicated that A. A.’s trial testimony was less
credible than his prior statement. A.A. te stified that appellant did not choke him, but
photographs admitted into ev idence showed injuries to A.A.’s neck. The photos
corroborate the version of events relayed to law enforcement directly after the assault. The
prosecutor focused on this corroborating evidence during closing arguments. Additionally,
at trial, appellant characterized his altercati on with appellant as back and forth “boxing,”
but a passerby testified that she observed someone being kicked while on the ground, which
is more consistent with A.A.’s statement to law en forcement. It is not reasonably likely
that the verdict would have been different had the limited exchange not occurred.

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II. Closing argument
During closing-argument rebuttal, the pr osecutor stated that it was a “reasonable
inference to conclude” that the difference between A.A.’s trial testimony and his statement
to law enforcement on New Year’s Eve 2014 was “a result of family pressure.” Appellant
contends that there was insufficient evidence to support this assertion.
During closing argument, prosecutors ma y “argue all reasonable inferences from
evidence in the record.” State v. Smith , 876 N.W.2d 310, 335 (Minn. 2016) (quotation
omitted). It is misconduct fo r a prosecutor to intentionally “misstate the evidence or
mislead the jury as to the inferences it may draw.” Id. (quotation omitted).
The prosecutor’s statement in closing argu ment regarding family pressure was not
plain-error misconduct. Evidence in the record indicates that A.A. got into an altercation
with his brother, appellant. At the time of the altercation, A.A. was living with appellant.
Immediately after the altercati on, A.A. told police that his brother had choked him and
tried to kill him. At trial, he retracted his previous allegations. The record indicates that
A.A. was maintaining contact with his brothe r after the altercation, and it was A.A. who
bailed appellant out of jail. It is therefore reasonable to in fer from the record that A.A.
changed his story because of “family pressu res” or compassion for his brother. The
prosecutor’s statement did not constitute plain error because it was a reasonable inference
based upon evidence in the record.
Appellant also challenges statements made by the prosecut or during closing-
argument rebuttal concerning A.A. being coached by his family during his testimony. The
prosecutor stated as follows:

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In the courtroom today while he was testifying there were
gestures being made from the fr ont row toward [A.A.] as he
was testifying. Okay. So it is a reasonable inference and easily
explains to you folks why there was a change here. The change
isn’t because he’s under oath, th e change is because there is
pressure and loyalty to the family which has prevented [A.A.]
from telling you what actually happened on Ne w Year’s Eve
2014.

The prosecutor later stated that A.A.’s trial testimony should be viewed “in the context of
the folks sitting in the front row and making gestures towards [A.A.] as he was testifying”
and “[t]he presence of the family in the courtroom can’t be ignored and you’ve seen what’s
gone on here.”
These statements constitute plain-error misconduct. Prosecutorial misconduct can
occur when the prosecutor argues facts not in evidence. State v. Peltier, 874 N.W.2d 792,
804-05 (Minn. 2016). It can al so occur when inadmi ssible evidence is referred to in an
effort to have jurors draw inferences from it. State v. Mayhorn, 720 N.W.2d 776, 788-89
(Minn. 2006). “When credibility is a central i ssue, this court pays special attention to
statements that may inflame or prejudice the jury.” Id. at 787.
The gestures from the gallery were not part of the evidence before the jury. It is not
clear from the record th at the gestures were readily appa rent to the jury . The jury was
deliberately excluded by the district court from discussions regarding those gestures. The
prosecutor therefore argued facts not in eviden ce and asked the jury to draw negative
inferences from those facts, thereby und ermining the fairness of the trial. See State v.
Fields, 730 N.W.2d 777, 782 (Minn. 2007) (“Generally, a prosecutor’s acts may constitute
misconduct if they have the effect of materially undermining the fairness of a trial.”).

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This court examined a similar scenario in State v. Lehman , a case in which a
defendant attacked his attorney in open court. 749 N. W.2d 76, 78 (Minn. App. 2008),
review denied (Minn. Aug. 5, 2008). The prosecutor referenced the attack in closing
argument. Id. at 86. We concluded th at the prosecutor’s statements did not constitute
misconduct. Id. at 87. However, in Lehman, the assault, which involved the defendant
punching his attorney repeatedly in the face, occurred in front of the jury, and the defendant
referred to the attack during his tes timony “by apologizing to the jury.” Id. at 79, 87. In
this case, it is not clear that the gestures were apparent to the jury, and unlike Lehman, there
was no testimony concerning the gestures. This case is therefore distinguishable.
In State v. Bobo, a drive-by-shooting murder case, a key witness refused to testify.
770 N.W.2d 129, 133, 135 (Minn. 2009). The prosecutor stated in closing argument that
the jury could consider whether the refusal to testify was a result of intimidation by a “sea
of people, people who had never been here at any other time in the trial and haven’t been
here since,” stating that “[t]hey filed in befo re his testimony, [and] they filed out after he
refused to testify.” Id. at 142. The supreme court concluded that the prosecutor’s
statements did not constitute misconduct be cause there was admitt ed evidence showing
intimidation of the witness. Id. Again, this case is distinguishable. Here, there was no
evidence indicating that A.A. was intimidated or pressured by individu als in the gallery.
And unlike Bobo, which involved a “sea of people,” it is unclear that the jury observed the
gestures. Although the prosecutor in this case stated that th e gestures were “being made
from the front row toward [A.A.], ” the record suggests that the prosecutor never actually
saw the gestures, as the judge stated to the attorneys outside of th e jury’s presence “you

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couldn’t have seen it, your backs [were] to it.” The prosecutor’s request that the jury draw
negative inferences about A.A.’s trial test imony based upon gestures from the gallery
constituted plain-error misconduct.
Having determined that plain-error misc onduct occurred, the burden shifts to the
state to show that appellant’s substantial rights were not affected. Ramey, 721 N.W.2d at
302. The state points to the evidence in this case, char acterizing it as extensive and
compelling. As previously discussed, A.A .’s detailed statement to law enforcement on
New Year’s Eve 2014 was corroborated by other evidence, including photographs showing
injuries to his neck, and testimony from a passerby, whose observations align with A.A.’s
statement to police.
The state also asserts that the statements were not pervasive. Indeed, the statements
at issue were not a substantial part of th e prosecutor’s closing arguments. And while
appellant did not have a chance to rebut the statements, the jury wa s instructed by the
district court that things sa id by the attorneys during closin g arguments are not evidence.
See State v. Taylor , 650 N.W.2d 190, 207 (Minn. 2002) (noting that we presume a jury
follows a district court’s instructions). Though plain-error prosecutorial misconduct
occurred, the state met its burden of establishi ng that appellant’s substantial rights were
not affected.
Affirmed.