Joseph Paul Myers, petitioner, Appellant,

This opinion will be unpublished and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
A17-1052

Joseph Paul Myers, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed January 16, 2018
Affirmed
Halbrooks, Judge

Anoka County District Court
File No. 02-CR-14-5468

Cathryn Middlebrook, Chief Appellate Public Defender, Susan J. Andrews, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

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

Sarah M. Kimball, Allison T. Mehawej, Newquist & Kimball Law Offices, P.C., Fridley,
Minnesota (for respondent)

Considered and decided by Halbrooks, Presiding Judge; Schellhas, Judge; and Kirk,
Judge.

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U N P U B L I S H E D O P I N I O N
HALBROOKS, Judge
Appellant challenges the postconviction court’s denial of his petition seeking a new
trial following his conviction of misd emeanor theft. Because we conclude that the
postconviction court acted within its discretion, we affirm.
FACTS
When appellant Joseph Paul Myers entered a Walmart store , two loss-prevention
officers, G.P. and C.J., noticed that he was carrying an empty shopping bag. G.P. and C.J.
followed Myers and saw him walk into two aisles, pick up two sets of curtains , and walk
out of the view of the security cameras . G.P. and C.J. continued to follow Meyers as he
walked away and watched him put both sets of curtains into his empty bag. Myers then
went to the customer service desk, presented a receipt from an earlier purchase, and sought
to return the curtains that he had just taken off the shelves. The customer service
representative accepted the return, and Myers received $36.42 in cash for the curtains.
G.P., C.J., and another employee approached Myers as he left and asked him to
return to the store because they had witnessed him commit theft. After Myers refused to
cooperate, G.P. and C.J. called law enforcement. Officer Bridget McBride arrived and
detained Myers, and G.P. and C.J. recounted the details of the incident for Officer McBride.
Officer McBride questioned Myers and discovered that he had cash in the front pocket of
his pants. Officer McBride retrieved the money from Myers and issued him a theft citation
before releasing him.

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Myers was charged with misdemeanor theft in violation of Minn. Stat. § 609.52,
subd. 2(1) (2014). Myers waived a jury trial and opted for a court trial. During trial, the
prosecutor called C.J., G.P ., and Officer McBride as witnesses and introduced into
evidence a surveillance video clip showing Myers’s movements in the store and photos of
the cash and curtains. The district court convicted Myers of misdemeanor theft. Myers
petitioned for postconviction relief, requesting a new trial based on prosecutorial
misconduct. Myers argued that the prosecutor committed two instances of misconduct by
(1) failing to adequately prepare G.P. and by eliciting testimony from G.P. that referred to
past incidents of appellant’s suspected shoplifting and (2) impermissibly expressing her
personal opinion about Myers’s credibility during closing argument . The postconviction
court denied Myers’s postconviction petition. This appeal follows.
D E C I S I O N
I.
We review a postconviction court’s denial of a petition for postconviction relief for
an abuse of discretion. Erickson v. State , 842 N.W.2d 314, 318 (Minn. 2014). “A
postconviction court abuses its discretion when it has exercised its discretion in an arbitrary
or capricious manner, based its ruling on an erroneous view of the law, or made clearly
erroneous factual findings.” Pearson v. State , 891 N.W.2d 590, 596 (Minn. 2017)
(quotation omitted).
Myers did not object at trial to the prosecutor’s alleged misconduct. Consequently,
we review this claim under the modified plain-error standard articulated in State v. Ramey,
721 N.W.2d 294, 302 (Minn. 2006). Myers has the burden to establish that the prosecutor

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committed an error that contravenes caselaw, a rule, or a standard of conduct, or is
otherwise plain. Id. If Myers demonstrates plain error, the burden shifts to the state t o
demonstrate that its misconduct did not affect Myers’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. (quotation omitted). If all three prongs are satisfied, we then assess “whether
the error should be addressed to ensure fair ness and the integrity of the judicial
proceedings.” Id. at 302.
G.P.’s Testimony
Myers contends that the prosecutor engaged in misconduct during her direct
examination of G.P. The prosecutor questioned G.P. about the reasons that he noticed
Myers when Myers entered the store. The following exchange occurred:
Q: And did a certain person come to your attention at that
point?
A: Yes, this male (indicating). He had an empty bag. I think
it was a Walgreens bag.
Q: Okay. And anything else?
A: We ju st had some previous incidents with him. We had
suspected him of shoplifting prior to that and then with him
having that empty Walgreens bag backed our suspicion.

Myers argues that G.P.’s reference to “some previous incidents” constitutes Spreigl
evidence and that the prosecutor intentionally elicit ed inadmissible character evidence
without following proper Spreigl procedures or failed to adequately prepare G.P. to testify.
A pros ecutor has a duty to prepare her witness prior to testifying in order to avoid
inadmissible statements and to define the acceptable limits of permissible testimony for the

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witness. State v. McNeil, 658 N.W.2d 228, 232 (Minn. App. 2003). It is “improper for a
prosecutor to intentionally elicit inadmissible and highly preju dicial testimony.” State v.
Jackson, 714 N.W.2d 681, 690 (Minn. 2006). The postconviction court concluded that the
prosecutor did not intentionally elicit G.P.’s testimony about Myers’s previous conduct.
We agree.
Although G.P. volunteered an improper comment on Myers’s involvement in prior
shoplifting incidents , we do not conclude, based on this record, that the prosecutor
intentionally elicited this testimony by asking G.P. an open-ended question: whether there
was “anything else” that drew his initial attention to Myers. Nor does the record support
Myers’s claim that the prosecutor failed to adequately prepare G.P. simply because G .P.
made one improper comment. Myers has not met his burden of establishing plain error.
But even assuming, alternatively, that the reference in G.P.’s testimony to Myers’s
previous incidents was arguably improper, as the postconviction court did, the
postconviction court determined that the prosecutor’s conduct did not affect Myers’s
substantial rights. Again, we agree. This was a court trial, and the district cou rt heard
testimony from G.P. , C.J., and Myers and made credibility findings in its post -verdict
order. The district court found G.P. and C.J.’s testimony to be credible and Myers’s
testimony to be no t credible. The district court also viewed the surveillance video that
captured Myers pick ing up two sets of curtains, walk ing out of the range of the security
camera, and presenting an old receipt to the customer-service desk to return the unpaid-for
curtains.

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Prosecutor’s Closing Argument
Myers also contends that the prosecutor engaged in misconduct by expressing her
personal opinion of Myers’s credibility by stating in her closing argument , “I don’t think
[Myers’s] testimony is credible. ” A prosecutor engages in misconduct by expressing her
personal opinion on the defendant’s credibility. State v. Powers , 654 N.W.2d 667, 679
(Minn. 2003). The postconviction court determined that Myers met his burden to
demonstrate that the prosecutor plainly erred by expressing her personal opinion of
Myers’s credibility.
But the postconviction court further determined that the state demonstrated that the
verdict was not significantly affected by the prosecutor’s comment. Although Myers
argues that the prosecutor’s comment prevented the district court from fairly analyzing his
credibility at trial, as the postconviction court noted, “The written verdict sets forth the
[district c ourt’s] reasoning in reaching its verdict, and that reasoning indicated that the
[district court] did not base its verdict solely or substantially on the improper testimony or
the prosecutor’s opinion about [Myers’s] credibility.”
The postconviction court cited State v. Ture in which the supreme court held that
the prosecutor’s expression of a personal opinion of the accused’ s guilt or the veracity of
witnesses was harmless when the district court “cautioned the jury that it should consider
only the evidence and that c ounsel’s final argument statements were not evidence, where
the evidence of guilt was ade quate, and where the prosecutor’ s argument was otherwise
proper.” 353 N.W.2d 502, 517 (Minn. 1984). The postconviction court noted that this was

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a bench trial, whereas Ture involved a jury trial. But the postconviction court applied the
Ture analysis to a bench trial, stating:
In a bench trial, improper remarks and testimony have less
effect than in a trial by jury, as the [district court] is itself the
fact finder and can determine what evidence is admissible and
which comments are proper and determine the weight of such
comments without the necessity of curative instructions.

And similar to Ture, the other evidence in the record adequately supports Myers’s
conviction. We agree with the postconviction court that Myers’s conviction was not
significantly affected by the prosecutor’s improper expression of her personal opinion.
We conclude that the postconviction court properly exercised its discretion in
denying Myers’s petition for a new trial.
Affirmed.