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This opinion will be unpublished and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
A17-0856

State of Minnesota,
Respondent,

vs.

Anthony Ralph Mock,
Appellant.

Filed April 2, 2018
Affirmed
Bratvold, Judge

Marshall County District Court
File No. 45-CR-16-356

Lori Swanson, Attorney General, Edwin W. Stockmeyer, Assistant Attorney General,
St. Paul, Minnesota; and

Donald Aandal, Marshall County Attorney, Warren, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Roy G. Spurbeck, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Larkin, Presiding Judge; Bratvold, Judge; and Florey ,
Judge.
U N P U B L I S H E D O P I N I O N
BRATVOLD, Judge
Appellant challenges his conviction of fleeing a peace officer in a motor vehicle and
second-degree driving while impaired. He contends that the evidence was insufficient to
2
convict him of both crimes and that the prosecution committed prosecutorial misconduct.
We conclude, however, that the jury heard suff icient evidence to convict appellant. A nd
while the prosecutor committed prejudicial misconduct that amounted to plain error , the
error did not affect appellant’s substantial rights. As a result, we affirm.
FACTS
A little after midnight on November 3, 2016, Marshall County Sheriff’s Deputy
Mark Ellerbush and his partner, Deputy Adam Gast, were driving a marked squad pickup
while on patrol near Warren, Minnesota. The deputies saw a black minivan that was
traveling up to 103 miles per hour and “swerving back and forth, varying in speeds.” They
followed the van for two miles and saw the van cross the centerline and “kind of driv[e] a
little erratically back and forth.” The officers activated their emergency lights and siren,
but the van did not pull over, travelled at least 20 miles, and crossed the border into North
Dakota. After getting permission to cross the state line, the deputies remained “within a
hundred yards [of the van] the whole time.” Both Ellerbush and Gast testified that, while
in pursuit, they were not able to identify the driver. Eventually, the van turned onto a gravel
road, then onto a driveway that turned into “a prairie grass road.” The van became stuck in
mud and stopped. At this point, the deputies were “30 feet behind” the van.
With the headlights illuminating the van, Ellerbush saw appellant Anthony Ralph
Mock exit the driver’s side front door and run. Ellerbush pursued on foot, but eventually
lost sight of Mock. Gast stayed with the two passengers who remained in the van, one in
the front passenger seat and the other in the back seat. The van had “a couple of bucket
3
seats in the front and a bench seat in the back” and the middle two seats had been removed,
so there was “plenty of room [in which] to move around.”
Ellerbush called for ba ckup and two North Dakota police officers arrived with a
police dog to track Mock. The dog led the officers, including Ellerbush, close to Mock,
who surrendered. Ellerbush immediately recognized Mock and identified his clothing as
the same worn by the person who exited the van. A North Dakota officer, David Stromberg,
arrested Mock. Stromberg testified that Mock said he was drunk and had “eaten a large
amount of methamphetamine and taken a large amount of pills.” Mock denied driving the
van and said that he ran because he had outstanding arrest warrants.
While in custody, Mock refused a blood-alcohol test and was later convicted of test
refusal in North Dakota. In Minnesota, Mock faced charges of fleeing a peace officer in a
motor vehicle in violation of Minn. Stat. § 609.487, subd. 3 (2016), and second-degree
driving while under the influence of alcohol in violation of Mi nn. Stat. § 169A.25,
subd. 1(a) (2016).
In addition to the testimony summarized above, the state offered evidence that
Mock’s girlfriend owned the van. Mock’s test-refusal conviction was admitted and the
district court gave a limit ing instruction that directed the jury to consider the conviction
solely as evidence that Mock was the driver of the van. A jury found Mock guilty of both
charges. The district court convicted him and imposed an executed sentence of 19 months
for fleeing a peace officer in a motor vehicle and 365 days for second-degree driving while
impaired to be served concurrently. Mock appeals.
4
D E C I S I O N
I. The evidence was sufficient to convict Mock of fleeing a peace officer in a motor
vehicle and second-degree driving while impaired.

Usually, when a defendant challenges the sufficiency of the evidence, we “conduct[]
‘a painstaking analysis of the record to determine whether the evidence, when viewed in
the light most favorable to the conviction,’ is sufficient to allow the jurors to reach a verdict
of guilty.” State v. Porte, 832 N.W.2d 303, 307 (Minn. App. 2013) (quoting State v. Ortega,
813 N.W.2d 86, 100 (Minn. 2012)). But the parties agree that Mock’s conviction rests on
circumstantial evidence, which we review under heightened scrutiny. State v. Nelson, 812
N.W.2d 184, 188 (Minn. App. 2012). In Minnesota, a two-part test evaluate s the
sufficiency of circumstantial evidence. State v. Harris, 895 N.W.2d 592, 598 (Minn. 2017).
First, we “identify the circumstances proved and independently consider the reasonable
inferences that can be drawn from those circumstances, when viewed as a whole.” Id. In
doing so, we defer to the jury’s decision to accept or reject evidence that is inconsistent
with the circumstances proved, according to the applicable standard of review. State v. Al-
Naseer, 788 N.W.2d 469, 473 (Minn. 2010).
Second, we must determine whether “the reasonable inferences that can be drawn
from the circumstances proved as a whole [are] consistent with the hypothesis that the
accused is guilty and inconsistent with any rational hypothesis except that of guilt.” State
v. Fox, 868 N.W.2d 206, 223 (Minn. 2015). Speculation or conjecture cannot be the basis
for a rational hypothesis inconsistent with guilt. Al-Naseer, 788 N.W.2d at 480.
5
To convict Mock of fleeing a peace officer in a motor vehicle, the state needed to
prove the following elements: (1) Mock fled or attempted to flee peace officers using a
motor vehicle, (2) the peace officers were lawfully discharging official duties, (3) Mock
knew or should have reasonably known that he was fleeing peace officers, and (4) Mock’s
act took place on or about November 3, 2016 , in Marshall County, Minnesota. See Minn.
Stat. § 609.487, subd. 3; 10A Minnesota Practice, CRIMJIG 24.17 (2015). To convict
Mock of second-degree driving while impaired, the state needed to prove the following
elements: (1) Mock drove or was in physical control of a motor vehicle, (2) while he was
under the influence of alcohol, and (3) Mock’s act took place on or about N ovember 3,
2016 in Marshall County, Minnesota.1 See Minn. Stat. § 169A.25, subd. 1(a) (referring to
Minn. Stat. § 169A.20, subd. 1, 1a, 1b, or 1c (2016)); 10A Minnesota Practice, CRIMJIG
29.02 (2015). Mock argues that the evidence was insufficient to prove that he was driving
the van, an element necessary to both offenses. See Minn. Stat. § 609.487, subd. 3; Minn.
Stat. § 169A.25, subd. 1(a).
The state proved the following circumstances. (1) Early in the m orning of
November 3, 2016, Ellerbush and Gast were on patrol in a marked squad pickup around
Warren, Minnesota, when they saw a black minivan swerve over the centerline at high

1 In addition to these elements, second-degree driving while impaired requires proving the
existence of two or more “aggregating factors.” Minn. Stat. § 169A.25, subd. 1(a).
Aggravating factors include “qualified impaired driving incident” within ten years of the
offense at issue. Minn. Stat. § 169A.03, subd. 3(1) (2016). A qualified impaired driving
incident is a “prior impaired driving convictions.” Minn. Stat. § 169A.03, subd. 22 (2016).
The parties stipulated that Mock was previously convicted of two qualified impaired
driving incidents within the last ten years.
6
speed. (2) The deputies followed the van and remained within one hundred yards for
approximately 20 miles, but could not identify the driver . (3) Eventually, the van turned
onto a gravel road where it became stuck in mud. (4) Mock exited the driver’s door and
started running away. (5) In the van, two passengers remained, one in the front passenger
seat and the other in the back seat. (6) Police found Mock hiding nearby and arrested him.
(7) Mock’s girlfriend owed the van. (8) Mock said he ran because of his outstanding arrest
warrants. (9) Mock told police that he was drunk, had ingested methamphetamine, and he
that he did not drive the van. (10) Mock refused chemical testing and was subsequently
convicted in North Dakota for test refusal related to these events.
Mock argues that these circumstances support a reasonable hypothesi s inconsistent
with his guilt: one of the van’s other passengers was driving the van as they fled police. As
the van stopped, Mock switched seats with the driver and exited the van through the
driver’s door. He fled the police on foot because he believed he was the subject of active
warrants or because he either possessed or ingested methamphetamine.
Mock’s hypothesis is unreasonable for three reasons. First, it is illogical to believe
that Mock would have agreed to the switch with the driver— taking on additional
culpability—if he already feared police capture for warrants and/or drug possession.
Second, if Mock did not switch so he could pretend to be the driver, then it is unreasonable
to conclude that Mock would have exited from the driver’s door when every second he
remained in the van increased his chances of apprehension. Third, Mock’s refusal to take
a chemical test is inconsistent with the alternative hypothesis that he was not the driver.
7
Mock argues that two cases support his position. In Al-Naseer, the supreme court
reversed a conviction after determining that the proven circumstances supported a
reasonable hypothesis other than guilt. 788 N.W.2d at 478, 481. While driving, Al-Naseer
hit a person on the side of the road. Id. at 476. To convict him of leaving the scene of a
criminal vehicular homicide, the state had to prove that Al-Naseer knew that an accident
had occurred. Id. at 475. The supreme court determined that the circumstances proved
supported Al-Naseer’s alternative hypothesis that he was asleep or otherwise unconscious
at the time he hit the bystander and did not know an accident had occurred until after he
had left the scene. Id. at 478.
But Al-Naseer is distinguishable from Mock’s case for two reasons. First, in Al-
Naseer, no evidence established that Al-Naseer was aware of the collision. See id. at 478.
In contrast, the state proved that Mock exited the van from the driver’s door, which
suggests that he was driving the van while fleeing the police. See id. at 478- 79. Second,
there was evidence in the record supporting Al -Naseer’s alternative hypothesis. After the
collision, “Al-Naseer’s vehicle did not react to either the noise or jolt of the impact; it did
not swerve, brake, or accelerate, but rather drifted past [the victim ’s] vehicle along the
shoulder of the road for another 150 feet, and then gradually returned to the highway.” Id.
at 479. In Mock’s case, there was no record evidence supporting his alternative hypothesis,
besides the presence of other people in the van.
Next, Mock argues that State v. Sam supports his position because this court
reversed a drug-possession conviction based on circumstantial evidence. 859 N.W.2d 825,
835-36 (Minn. App. 2015). In that case, police searched a car that Sam and another
8
passenger occupied. Id. at 828- 29. Among other contraband, officers found
methamphetamine in the glove compartment. Id. at 829. Sam reasoned that the
circumstances proved supported the alternative hypothesis that the methamphetamine
belonged to the car’s other occupant or the owner. Id. at 835-36.
Sam is also distinguishable from Mock’s case. In Sam, this court noted that “no
direct evidence tied [Sam] to possession of the contraband.” Id. at 835. Instead, record
evidence implicated Sam’s passenger: police saw the passenger moving “toward the center
of the car” while Sam “made no movements towards the center of the car,” and police
found methamphetamine on the passenger’s person. Id. at 834-35. In contrast, in Mock’s
case, there was evidence directly linking him with the necessary element: officers saw him
exit the van from the driver’s door, he refused a chemical test eve n though he denied
driving the van, and the van was registered to Mock’s girlfriend. Further, there was no
evidence that either of the other two van passengers drove.
We conclude that Mock’s alternative hypothesis that he was not driving the van is
unreasonable. We also conclude that the evidence was sufficient to convict him of fleeing
a peace officer in a motor vehicle and second-degree driving while impaired.
II. Any prosecutorial misconduct did not affect Mock’s substantial rights.

Mock argues that the prosecutor committed prosecutorial misconduct by eliciting
testimony from Ellerbush about the state’s efforts to subpoena the two van passengers,
neither of whom were present at trial. The state responds that the prosecutor’s questions
were not plain error, and even if they were, they did not affect the jury’s verdict and thus
did not affect Mock’s substantial rights.
9
Before trial, Mock successfully moved to exclude the passengers’ statements to
police investigators, as well as any related questions; both statements suggested that Mock
was driving the van. The district court granted the motion because neither passenger was
available to testify . The district court agreed with Mock’s argument that allow ing the
statements would violate Crawford v. Washington, 541 U.S. 36, 59, 124 S. Ct. 1354, 1369
(2004).
During opening statements, defense counsel suggested that one of the other two
passengers was driving the van. Later, the prosecutor entered into the following exchange
with Ellerbush:
PROSECUTOR: What happened with [the two passengers,]
Mr. Dale Mock and Ms. Nicole Vondal?
DEPUTY: They were brought back to their residence by
another Marshall County deputy.
PROSECUTOR: Have you been attempting to serve Mr. Dale
Mock with a subpoena?
DEPUTY: Yes we have. I tried three times and I know another
deputy tried two or three times and we could not locate him.
PROSECUTOR: Is Ms. Vondal in the area any longer?
DEPUTY: She is not.

The prosecutor made no further mention of subpoenaing the passengers in the van.
On cross-examination of Ellerbush, defense counsel asked the following questions:
DEFENSE: And the whereabouts, at least as far as you know,
of the other two folks are not known at this time?
DEPUTY: No. We could not—we could not locate them.

During closing arguments, defense counsel made the following statements: “Who
was driving? Well, funny, we didn’t hear the state call for testimony from the other two
10
saying Mr. Mock was driving, it wasn’t us. Where are they? They’re gone. So it’s just as
possible that one of the other two was the driver.”
Mock did not object to the prosecutor’s questions at trial. As a result , we evaluate
the questions under the modified plain-error test, which requires the appellant to prove
(1) that there was error and (2) that the error was plain. State v. Parker, 901 N.W.2d 917,
926 (Minn. 2017). If the appellant proves these two prongs, the n the burden shifts to the
state to “demonstrate lack of prejudice; that is, the misconduct did not affect [the
defendant’s] substantial rights.” State v. Ramey, 721 N.W.2d 294, 302 (Minn. 2006). In
effect, the state must show that there is no “reasonable likelihood that the absence of the
misconduct in question would have had a significant effect on the verdict of the jury.” Id.
(quotations omitted). Finally, if the state is unable to show that the “alleged error did not
affect the defendant’s substantial rights, [ we consider] whether the error should be
addressed to ensure fairness and the integrity of judicial proceedings.” Parker, 901 N.W.2d
at 926.
A. The prosecutor committed plain error.

A prosecutor engages in misconduct if his acts “materially undermin[e] the fairness
of [the] trial.” State v. Fields, 730 N.W.2d 77 7, 782 (Minn. 2007). This may occur when
the prosecutor “violates ‘clear or established standards of conduct.’” State v. McCray, 753
N.W.2d 746, 751 (Minn. 2008) (quoting Fields, 730 N.W.2d at 782). Generally, it is plain
error for the state to refer to an uncalled witness.
2 See State v. Shupe, 293 Minn. 395, 396-

2 There are exceptions to this general rule, but none apply here. For example, the state may
refer to uncalled witnesses if they would merely “support the testimony of other witnesses.”
11
97, 196 N.W.2d 127, 128 (Minn. 1972); State v. Page, 386 N.W.2d 330, 336 (Minn. App.
1986), review denied (Minn. June 30, 1986). Here, the prosecutor elicited testimony about
the van’s two passengers, neither of whom testified at Mock’s trial. Precedent establishes
that this was plain error.3
In Shupe, the prosecutor argued during closing, “I was going to call a series of
witnesses. Several of the witnesses I did not call . . . due to unexpected illness and
hospitalization so it’s unfortunate that this supplementary testimony could not come in, but
things like that happen.” 293 Minn. at 396, 196 N.W.2d at 128. The supreme court reversed
and granted a new trial, concluding that the jury may have been “influenced by the
prosecutor’s reference to the asserted fact that there was other testimony bearing upon [the]
defendant’s guilt which he was prevented from submitting.” Id. In Page, the prosecutor
argued in closing that the defendant was not charged with robbery because the victim “was
unavailable to testify because he live[d] in Switzerland.” 386 N.W.2d at 336. This court
reversed and granted a new trial, concluding that the prosecutor’s statements, in
conjunction with “the wrongful admission of hearsay evidence,” were grounds for a new

State v. Thomas, 305 Minn. 513, 515-16, 232 N.W.2d 766, 768 (Minn. 1975). But the state
does not allege that the van’s two passengers would have provided duplicative testimony.

3 Mock also argues that two unpublished decision from this court support his position. But
unpublished cases are not precedential. Minn. Stat. § 480A.08, subd. 3 (2016); State v.
Ellis-Strong, 899 N.W.2d 531, 537 (Minn. App. 2017).

12
trial. Id. We cannot meaningfully distinguish the prosecutor’s conduct in Shupe or Page
from the prosecutor’s conduct here.4
The state attempts to distinguish Shupe and Page by arguing that the prosecutor’s
questions properly responded to Mock’s suggestion that the witnesses’ absence implies
their testimony would have been unfavorable to the state. It points to three cases in which
a court has allowed a prosecutor to ask otherwise imper missible questions, or make
otherwise impermissible statements, to preempt an argument from the defense.
The first case does not support the state’s position. In State v. Dickson, the
prosecutor mentioned the codefendant, who did not testify, and suggested that the
defendant would question the veracity of the charges because the state did not call the
codefendant to testify. 309 Minn. 463, 468- 70, 244 N.W.2d 738, 742-43 (1976). The
prosecutor then implied that the codefendant would refuse to testify because he would not
want to incriminate himself. Id. at 467-68, 244 N.W.2d at 741-42 (“You think for one
minute [the codefendant] is going to take that stand? For one minute?”). The supreme court
declined to grant a new trial after characterizing the prosecutor’s comments as anticipating
“an argument from defense counsel regarding the prosecution’s failure to call a witness,”
and attempting “to minimize to the jury the importance of speculating on what the witness

4 The state argues that Page is distinguishable because the reversal was based on “the
cumulative effect of multiple errors.” It is true that Page granted a new trial based on more
than one error, but it did not rule out granting a new trial solely on the basis of prosecutorial
misconduct. Id. The state cites an unpublished case suggesting otherwise, but unpublished
cases are not precedent. See Minn. Stat. § 480A.08, subd. 3; Ellis-Strong, 899 N.W.2d at
537. Moreover, Shupe granted a new trial solely based on the prosecution’s reference to an
uncalled witness. 293 Minn. at 396-97, 196 N.W.2d at 128.
13
might state.” 309 Minn. at 470, 244 N.W.2d at 742-43. The supreme court did not conclude,
however, that the prosecutor’s statements were not in error. Rather , the supreme court
determined that the statements were “not so prejudicial as to require a new trial.” Id., 244
N.W.2d at 743. Because Dickson focuses on prejudicial effect and not error, it does not
persuade us that the prosecutor’s questions in Mock’s case were proper.
The state’s other cases are distinguishable. State v. Cermak and State v. Banks held
that the prosecutors did not err by making otherwise impermissible statements because they
did so to directly rebut the defendant’s arguments. State v. Cermak, 365 N.W.2d 243, 247-
48 (Minn. 1985); State v. Banks, 875 N.W.2d 338, 349 (Minn. App. 2016), review denied
(Minn. Sept. 28, 2016). But in both cases, the defense signaled its intent to make the
argument that the prosecutor was rebutting. See Cermak, 365 N.W.2d at 247 (allowing
questions about convictions of accomplices but only after Cermak “made an issue of the
adequacy of the investigation”); Banks, 875 N.W.2d at 349 (allowing statements about
race, but only after Banks raised the issue of race “throughout trial”). In Mock’s case,
defense counsel did not mention the absence of uncalled witnesses until closing argument.5
We determine that Mock did not signal his intent to argue that the uncalled witnesses’
testimony would have been unfavorable to the state.

5 As previously mentioned, Mock successfully moved to exclude the passengers’ out -of-
court statements to police. In opening statements, defense counsel argued that one of the
passengers was driving, but he did not refer to their absence. Mock cross- examined
Ellerbush about the uncalled witnesses only after the prosecutor had asked his
impermissible questions.
14
Moreover, we note that in Cermak and Banks, the prosecutors did not mention the
absence of uncalled witnesses; rather, the prosecutor offered evidence about witnesses that
were not called. Cermak, 365 N.W.2d at 247; Banks, 875 N.W.2d at 348-49. Shupe and
Page are founded on the concern that in most cases, the state could argue that it needs to
mention the whereabouts of uncalled witnesses to rebut the defense argument that the
missing witnesses would have offered exculpatory testimony. In other words, the exception
proposed by the state would swallow the rule. We conclude that the prosecutor plainly
erred by eliciting testimony about the whereabouts of the van’s two passengers.
B. The plain error did not affect Mock’s substantial rights.

When considering if prosecutorial misconduct substantially affected the appellant’s
rights, we consider “the pervasiveness of improper suggestions and the strength of evidence
against the defendant.” Parker, 901 N.W.2d at 926 (quotation omitted). We may also
consider “whether the defendant had an opportunity to (or made efforts to) rebut the
improper suggestions.” State v. Cao, 788 N.W.2d 710, 717 (Minn. 2010).
The plain error did not affect Mock’s substantial rights for three reasons. First, the
state’s evidence against Mock was strong. The jury heard testimony from officer Ellerbush
that Mock exited the d river’s door when he ran from the police. This is strong evidence
that Mock drove the van. Second, the misconduct was not pervasive. The alleged
misconduct took up 11 lines of a 116 page trial transcript. Third, defense counsel asked
follow-up questions of the deputy about the uncalled witnesses and then, at closing, argued
that the absence of the other two occupants of the van generated reasonable doubt .
Accordingly, the state has shown that any error did not affect Mock’s substantial rights.
15
Because the state has successfully shown that any error did not affect Mock’s
substantial rights, we do not address the fourth prong of the modified plain-error test.
Affirmed.