State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A17-1363

State of Minnesota,
Respondent,

vs.

Antonio Fransion Jenkins, Sr.,
Appellant.

Filed August 19, 2019
Affirmed
Johnson, Judge

Hennepin County District Court
File No. 27-CR-16-8250

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Michael O . Freeman, Hennepin County Attorney, Sean P. Cahill, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

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

Considered and decided by Cochran, Presiding Judge; Johnson, Judge; and Kirk,
Judge.

Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant
to Minn. Const. art. VI, § 10.

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U N P U B L I S H E D O P I N I O N
JOHNSON, Judge
A Hennepin County jury found Antonio Fransion Jenkins, Sr., guilty of attempted
second-degree murder and three other crimes based on evidence that he shot two men at
close range while they were sitting in a parked car . Jenkins later petitioned for post-
conviction relief based on newly discovered evidence, namely, that one of the victims
recanted the portion of his trial testimony in which he identified Jenkins, with whom he
previously was acquainted, as the shooter. The post-conviction court found that the victim-
witness’s trial testimony was not false and that his recantation is not genuine and,
accordingly, denied the post-conviction petition. We conclude that the post-conviction
court did not clearly err in its findings concerning the victim-witness’s trial testimony and
recantation and did not abuse its discretion by denying the post-conviction petition. We
also conclude that the prosecutor did not engage in misconduct at trial. Therefore, we
affirm.
FACTS
At approximately 5:30 a.m. on March 19, 2016, Minneapolis police off icers were
alerted to a shooting in south Minneapolis. When the officers arrived at the scene, one of
the victims had fled, and the other victim was lying on the street. The latter victim, K.H.-
W., told an officer that the person who shot him was “Tone.” During his subsequent
hospitalization, K.H.-W. told another officer that “Tone” shot him, and he later identified
Tone as Jenkins.

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The state charged Jenkins with four offenses: attempted second-degree murder, in
violation of Minn. Stat. §§ 609.17, subd. 2; .19, subd. 1(1) (2014); possession of a firearm
by an ineligible person, in violation of Minn. Stat. § 624.713, subd. 1(2) (2014); second -
degree assault with a dangerous weapon inf licting substantial bodily harm, in violation of
Minn. Stat. § 609.222, subd. 2 (2014); and second-degree assault with a dangerous weapon,
in violation of Minn. Stat. § 609.222, subd. 1 (2014).
The case was tried to a jury on three days in March 2017. The state called ten
witnesses. The state’s primary witness was K.H.-W., who testified as follows: In the early
morning on the day of the shooting, he and a relative, T.J., were sitting in a parked vehicle
near the intersection of East Lake Street and Bloomington Avenue South in Minneapolis.
K.H.-W. was sitting in the front passenger seat , and T.J. was sitting in the driver’s seat .
K.H.-W. saw a man approaching the passenger’s side of the vehicle whom he immediately
recognized as Jenkins. K.H.-W. said to him, “What up, Tone?” Moments later, Jenkins
fired a handgun at K.H.-W. and T.J., shooting K.H.-W. in his right arm and his face and
shooting T.J. in his back and a leg. T.J. ran away to evade Jenkins. K.H.-W. collapsed on
the street. Shortly thereafter, an officer arrived and asked who shot him . K.H.-W. said,
“Tone shot me.” Two days later, a different officer visited him while he was in an
intensive-care unit at a hospital. He told that officer that “Tone” shot him and later
identified him in an array of photographs . He was questioned again a few months later
when he was an inmate at the correctional facility in Rush City. He told the interviewing
officers that a man called “Uncle John” told him that Jenkins shot him because he believed
that K.H.-W. was responsible for the death of one of Jenkins’s associates. K.H.-W. also

4
told the officer s that, three days after the shooting, he saw Jenkins in a blue Chevrolet
Tahoe at a gas station.
The state called eight law-enforcement officers as w itnesses, and they generally
corroborated K.H.-W.’s testimony. Officer Schliesing testified that, after he arrived at the
scene of the shooting, K.H.-W. identified “Tone” as the shooter. Sergeant Metcalf testified
that K.H.-W. told her on multiple occasions that “Tone” shot him and that his recollection
of the incident was consistent each time he spoke with her. Sergeant Freeman testified that
he was with Sergeant Metcalf at the Rush City prison when K.H.-W. told them that Jenkins
had shot him.
Jenkins called four witnesses. His wife testified that she owns a blue GMC Yukon
but that the vehicle was impounded at the time of the shooting. She also testified that
Jenkins was asleep at their home at approximately 5:00 a.m. or 6:00 a.m. on the day of the
shooting. Jenkins did not testify.
The jury found Jenkins guilty on all counts. In May 2017, the district court imposed
a sentence of 240 months of imprisonment on count 1, a concurrent sentence of 60 months
of imprisonment on count 2, and a consecutive sentence of 60 months of imprisonment on
count 4.
Shortly after being sentenced, Jenkins was imprisoned at the correctional facility in
St. Cloud. Coincidentally, K.H.-W. also was imprisoned there, and the two men were
inadvertently assigned to adjacent prison cells for five days in June 2017. During that five-
day period, Jenkins made two telephone calls to persons outside the prison in which he
described his interactions with K.H.-W. In the first telephone call, Jenkins told the other

5
person that he and K.H.-W. were in adjacent cells and that he told K.H.-W. to “sign this
affidavit and to tell the truth.” In the second telephone call, Jenkins told his wife that h e
needed to talk to a lawyer about an affidavit. During the same time period, K.H.-W. wrote
a letter to his wife saying that the man who shot him was in the same prison. Shortly
thereafter, K.H.-W.’s wife called the prison to express her concern. A few weeks later,
K.H.-W. thanked his wife by telephone for contacting the department of corrections. In
that same telephone call, K.H.-W. told his wife that Jenkins had entered his cell, apologized
for shooting him, offered him money, and placed money into his canteen account.
In August 2017, Jenkins filed a notice of appeal fr om his conviction and sentence.
In January 2018, while his direct appeal was pending, Jenkins moved to stay the appeal so
that he could pursue post-conviction proceedings. This court granted the motion.
In March 2018, Jenkins filed a petition for post-conviction relief. The petition was
based on an affidavit that K .H.-W. had executed a couple weeks earlier in which he
recanted significant portions of his trial testimony, including his identification of Jenkins
as the man who shot him. The affidavit stated that his “statement to police at the scene of
the shooting and [his] testimony at Mr. Jenkins’s trial were not the truth.” He stated, “I did
not see who shot me on March 19th,” and “I thought it could have been Mr. Jenkins because
of our past relationship, but I never saw Mr. Jenkins on March 19th.” He also stated, “I
later testified that Mr. Jenkins shot me because I did not want to change my story from
what I first told police.” He further stated that he did not see Jenkins at a gas station in a
Chevrolet Tahoe and that he fabricated th at event to show that he was able to identify
Jenkins.

6
The district court scheduled an evidentiary hearing on the petition. The parties
appeared before the district court in August 2018. The parties stipulated to the
admissibility of numerous exhibits, one of which is K.H.-W.’s affidavit. The parties also
stipulated that, if K.H.-W. were called as a witness, he would refuse to testify based on his
Fifth Amendment right against self -incrimination. Because neither party offered any
testimony, the matter was submitted based on the stipulated exhibits and the trial record.
Most of the exhibits in the post-conviction record were offered by the state to rebut
K.H.-W.’s affidavit. Included among the exhibits ar e audio-recordings and transcripts of
the telephone calls made by Jenkins and K.H.-W. from the St. Cloud prison in mid -2017,
which are described above. Also included among the exhibits is a recording and a transcript
of a telephone call between K.H.-W. and his wife in which she confronted him about his
recantation. In response, K.H.-W. acknowledged to his wife that Jenkins shot him, that he
was telling the truth when he testified at trial, and that he was “under stress” when he sent
the January 22, 2018 letter.
In October 2018, the post-conviction court filed a ten-page order in which it denied
Jenkins’s post-conviction petition. The district court concluded that it was “not reasonably
well satisfied that [K.H.-W.’s] trial testimony was false or that his recantation is genuine.”
Jenkins moved to dissolve the stay and reinstate his direct appeal, and this court granted
the motion.

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D E C I S I O N
I. Newly Discovered Evidence
Jenkins first argues that the district court erred by denying his pet ition for post-
conviction relief. He contends that he is entitled to a new trial on the ground that newly
discovered evidence shows that K.H.-W. testified falsely at trial.
If a criminal offender seeks a new trial based on a trial witness’s recantation of trial
testimony, a post-conviction court should grant a new trial if:
(1) the court is reasonably well -satisfied that the testimony
given by a material witness is false; (2) without it the jury
might have reached a different conclusion; and (3) the party
seeking the new trial was taken by surprise when the false
testimony was given and was unable to meet it or did not know
of its falsity until after the trial.

Ortega v. State , 856 N.W.2d 98, 103 (Minn . 2014) (citing Larrison v. United States ,
24 F.2d 82, 87 -88 (7th Cir. 1928)). “While the first two prongs must be met for the
petitioner to be entitled to a new trial, the third prong is a relevant factor to be considered,
but not an absolute condition p recedent for granting a new trial.” Ferguson v. State ,
779 N.W.2d 555, 559 (Minn. 2010) (quotation omitted). “The first prong of Larrison is
met only when the court is reasonably certain that the recantation is genuine.” Id. at 559-60
(quotation omitted). The circumstances surrounding a recantation may be considered when
determining whether the recantation is genuine. See State v. Walker, 358 N.W.2d 660, 661
(Minn. 1984).
A post-conviction petitioner bears the burden of establishing that he or she is entitled
to relief. Pippitt v. State, 737 N.W.2d 221, 226 (Minn. 2007). This court generally applies

8
an abuse -of-discretion standard of review to the denial of a post-conviction petition.
Matakis v. State , 862 N.W.2d 33, 36 (Minn. 2015). We apply a clear-error standard of
review to determine “‘whether there is sufficient evidence in the record to sustain the post-
conviction court’s findings.’” Id. (quoting Vance v. State , 752 N.W.2d 509, 512
(Minn. 2008)).
In its order denying Jenkins’s petition , the post-conviction court began its analysis
by stating that the second requirement is satisfied and that the third requirement is not
satisfied. The post-conviction court noted that only the first prong of the Larrison test was
at issue. The post-conviction court reviewed K.H.-W.’s testimony at trial and stated that
he “repeatedly identified Petitioner as the man who shot him.” The post-conviction court
described the circumstances surrounding K.H.-W.’s recantation as “highly suspicious and
indicative of pressure placed on him by Petitioner.” Specifically, the post-conviction court
stated that a January 22, 2018 handwritten letter signed by K.H. -W., stating that he
“provided false testimony” at trial and that he “would like to take [his] statement back . . .
to help an innocent man come home,” is “inherently suspicious” because it contains two
different forms of handwriting, thus providing “very strong evidence that [ K.H.-W.] did
not write the substance of the recantation letter.” The post-conviction court also stated
that, even after K.H.-W. signed the January 2018 handwritten letter and executed the March
2018 affidavit, he “ continued to acknowledge that Petitioner shot him.” The post-
conviction court concluded as follows:
Considering all of the inf ormation in the record, the
Court is not reasonably well satisfied that [ K.H.-W.’s] trial
testimony was false and that his recantation is genuine. Rather,

9
the evidence heavily supports that [K.H.-W.] was pressured by
petitioner to recant during the days t hey were inadvertently
housed next to each other at Minnesota Cor rectional Facility-
St. Cloud.

On appeal, Jenkins contends that the post-conviction court erred because K.H.-W.’s
“sworn affidavit proves that his trial testimony identifying Appellant as the shooter was
false.” He also contends that the exhibits introduced by the state at the post-conviction
hearing do not undermine K.H.-W.’s affidavit. These contentions collide head-on with the
post-conviction court’s finding that K.H.-W.’s affidavit is not credible and that the
circumstances surrounding the affidavit indicate that Jenkins pressured K.H.-W. to execute
it. The same judge presided over the trial and over post-conviction proceedings, and the
judge simply did not believe K.H.-W.’s affidavit. The post-conviction court’s ultimate
finding is supported by voluminous evidence of statements made by Jenkins and K.H.-W.
after the trial that strongly suggest that Jenkins pressured K.H.-W. to execute the affidavit
recanting his trial testimony. The post-conviction court is in a better position than this
court to assess the credibility and reliability of K.H.-W.’s trial testimony and his
subsequent affidavit. See McDonough v. St ate, 8 27 N.W.2d 423, 426 (Minn. 2013);
Opsahl v. State, 710 N.W.2d 776, 782 (Minn. 2006).
Thus, the post-conviction court did not clearly err in its finding with respect to the
first requirement of the Larrison test. Accordingly, the post-conviction court did not err
by denying Jenkins’s petition for post-conviction relief.

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II. Claim of Prosecutorial Misconduct
Jenkins also argues that he is entitled to a new trial on the ground that the prosecutor
engaged in misconduct at trial. Specifically, Jenkins argues that the prosecutor engaged in
misconduct in his direct -examination of a witness, in his closing argument, and in his
rebuttal closing argument.
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
denied (Minn. June 19, 2007). T his court applies “a modified plain -error test” to
unobjected-to claims of prosecutorial misconduct. State v. Carridine , 812 N.W.2d 130,
146 (Minn. 2012). To prevail under the modified plain -error test, an appellant must
establish that there is an error and that the error is plain. State v. Ramey, 721 N.W.2d 294,
302 (Minn. 2006). An error is plain if it “contravenes case law, a rule, or a standard of
conduct.” Id. If there is a plain error, the state bears the burden of showing that the plain
error did not affect an appellant’s substantial r ights, i.e., “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. (quotation omitted). “If the state fails to demonstrate
that substantial rights were not affected, ‘the appellate court then assesses whether it should
address the error to ensure fairness and the integrity of the judicial proceedings.’” State v.
Davis, 735 N.W.2d 674, 682 (Minn. 2007) (quoting State v. Griller, 583 N.W.2d 736, 740
(Minn. 1998)).

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A. Direct Examination of Witness
Jenkins argues that the prosecutor engaged in misconduct by not preparing one of
the state’s witnesses to refrain from testifying about inadmissible character evidence.
During the state’s case -in-chief, the pros ecutor examined Sergeant Metcalf about the
process by which she prepared the photographic array that was presented to K.H.-W. When
asked, “how do you develop the photo lineup? ,” Sergeant Metcalf testified, “There is a
database we call MRAP . . . that holds thousands of booking photos.” Jenkins objected on
the ground that the testimony suggested that he had previously been arrested, and he moved
for a mistrial. The district court denied Jenkins’s motion for a mistrial but granted his
request for a curative instruction.
“It is generally misconduct for a prosecutor to ‘knowingly offer inadmissible
evidence for the purpose of bringing it to the jury’s attention.’” State v. Mosley , 853
N.W.2d 789, 801 (Minn. 2014) (quoting State v. Milton , 821 N.W.2d 789, 804 (Minn.
2012)). If a prosecutor intentionally elicits inadmissible evidence from a state’s witness, a
new trial may be appropriate if the inadmissible evidence was prejudicial in the sense that
it “played a substantial part in influencing the jury to convict.” See State v. McDaniel ,
777 N.W.2d 739, 749 (Minn. 2010) (quotation omitted) ; see also State v. McNeil , 658
N.W.2d 228, 231 -32 (Minn. App. 2003); cf. State v. Mahkuk , 736 N.W.2d 675, 689 -90
(Minn. 2007) (cautioning that reversal may be appropriate re medy for intentionally
eliciting inadmissible evidence even if not prejudicial).
If a prosecutor unintentionally elicits inadmissible evidence, a defendant may be
entitled to a new trial if the inadmissible evidence “prejudiced the defendant’s case.” State

12
v. Richmond, 214 N.W.2d 694, 695 (Minn. 1974) . This is so because a prosecutor “has a
duty to properly prepare its own witnesses prior to trial.” State v. Underwood, 281 N.W.2d
337, 342 (Minn. 1979). “The fact that the prejudicial information was volu nteered by the
witness does not render it less harmful to defendant. ” State v. Huffstutler , 130 N.W.2d
347, 348 (Minn. 1964). But the admission of inadmissible and prejudicial evidence is not
reversible error if the prosecutor did not intentionally elicit the testimony, the statement at
issue was merely a “passing” reference, and the evidence supporting guilt was
“overwhelming.” State v. Haglund, 267 N.W.2d 503, 506 (Minn. 1978). In addition, the
unintentional eliciting of inadmissible and prejudicial e vidence is not reversible error if it
is harmless beyond a reasonable doubt because “the jury’s verdict was surely unattributable
to the misconduct.” State v. Whitson , 876 N.W.2d 297, 304 (Minn. 2016) (quotation
omitted).
In this case, the state concedes that evidence concerning a prior booking photograph
of Jenkins is inadmissible but contends that its disclosure was inadvertent and did not affect
the jury’s verdict. There is nothing in the record to indicate that the prosecutor intentionally
elicited Sergeant Metcalf’s reference to Jenkins’s booking photograph, and Jenkins does
not argue that it was intentional. The district court gave a curative instruction by telling
the jury to disregard the answer, which, we presume, mitigated the prejudicial effect of the
evidence. See State v. Budreau , 641 N.W.2d 919, 926 (Minn. 2002); see also State v.
Manthey, 711 N.W.2d 498, 505 -06 (Minn. 2006). In light of K.H.-W.’s testimony
identifying Jenkins as the shooter, the brief reference to inadmissible evidence likely had
very little impact on the jury’s verdict. See Ture v. State , 353 N.W.2d 518 , 524 (Minn.

13
1984) (concluding that evidence of identification from “mug shots” was “unfortunate” but
not prejudicial).
B. Arguments Concerning Burden of Proof
Jenkins next argues that the prosecutor engaged in misconduct by shifting or
misstating the burden of proof on four occasions during closing argument. On three of
those occasions, he did not object.
First, Jenkins argues that the prosecutor improperly shifted the burden of proof to
him by arguing that Jenkins’s alibi defense (that he was asleep at home when the shooting
occurred) is “ not supported by any credible evidence.” A prosecutor may argue that a
defense or a defendant’s argument lacks merit , and a prosecutor may proactively argue
against arguments that defense counsel might make. State v. Salitros , 499 N.W.2d 815,
818 (Minn. 1993); see also State v. Martin, 773 N.W.2d 89, 106 (Minn. 2009). In addition,
“the state is free to argue that part icular witnesses were or were not credible.” State v.
McCray, 753 N.W.2d 746, 752 (Minn. 2008) (quotation omitted). Furthermore, the
supreme court has specifically stated that “a prosecutor’s comment on the lack of evidence
supporting a defense theory does not improperly shift the burden.” McDaniel, 777 N.W.2d
at 750. For these reasons, the prosecutor did not improperly shift the burden by arguing
that Jenkins’s alibi defense is not supported by credible evidence.
Second, Jenkins argues that the prosecutor improperly shifted the burden of proof
by suggesting that Jenkins did not produce evidence to support his theory that K.H. -W.
fabricated the incident at the gas station. In the challenged statements, the prosecutor noted
that Jenkins ’s attorney did no t show K.H.-W. a photograph of the GMC Yukon and

14
questioned whether it was the same vehicle that Jenkins’s wife said was impounded. The
district court overruled Jenkins’s objection to the prosecutor’s argument. On appeal,
Jenkins contends that the prosecutor implied that he had the burden to prove that the vehicle
K.H.-W. claimed to see at the gas station was the same vehicle that was impounded. The
prosecutor’s statements do not shift the burden at all; they merely argue that there was an
absence of evidence to support Jenkins ’s theory that K.H.-W. was lying about the gas -
station incident. See State v. Nissalke , 801 N.W.2d 82, 106 -07 (Minn. 2011); McDaniel,
777 N.W.2d at 750.
Third, Jenkins argues that the prosecutor improperly shifted the burden of proof by
arguing that the jurors should vote to acquit Jenkins if they did not believe K.H. -W.’s
testimony. The relevant excerpt is as follows:
What motive would [K.H. -W.] have to lie? What the
defense is asking you to believe is that when he is sho t, laying
on the ground about to die, he’s going to make up a story that
Antonio Jenkins was the one that shot him. If you believe that,
then acquit him.

Jenkins contends that the prosecutor’s statement improperly suggested that the jury had to
decide between two alternatives. He cites State v. Strommen , 648 N.W.2d 681 (Minn.
2002), in which the supreme court concluded that the prosecutor misstated the sta te’s
burden of proof by telling the jury to “weigh the story in each hand and decide which one
is most reasonable, which one makes the most sense.” Id. at 690. Jenkins’s argument
assumes that the jury was given a binary choice , i.e., that the jury must acquit Jenkins if
they did not believe K.H. -W.’s testimony and, thus, must convict Jenkins if they believed
K.H.-W.’s testimony. But the prosecutor’s statement did not suggest that the jury had only

15
two choices and did not refer to the burden of proof. T he prosecutor’s statement simply
invited the jury to determine whether they found K.H. -W.’s testimony credible, which is
permissible. See State v. Fields, 730 N.W.2d 777, 785-86 (Minn. 2007).
Fourth, Jenkins argues that the prosecutor misstated the burden of proof by making
the following argument:
Now, [Jenkins’s attorney] also talked about a significant
burden, okay? Beyond a reasonable doubt. That is the burden
that the State of Minnesota does not take lightly. But, ladies
and gentlemen, bey ond a reasonable doubt, there is nothing
magical about that standard. That’s a standard that we’ve had
in this justice system for approximately 200 years. That’s a
standard that’s met in courtrooms just like this all across the
country. Do not be intimidated by that standard.

A similar argument was made in Martin, in which “the prosecutor told jurors that ‘when
liberty interests are at stake it’s only fair’ that the burden rests with the prosecution, but
even with the presumption of innocence, many peop le are still convicted and that proof
beyond a reasonable doubt was ‘a stiff burden.’” 773 N.W.2d at 105. The supreme court
concluded that the prosecutor’s argument did not misstate the burden of proof because “it
was a legitimate explanation of the Stat e’s burden.” Id. The same is true of the
prosecutor’s argument in this case.
C. Argument Concerning Society
Jenkins argues that the prosecutor engaged in misconduct by urging the jury to find
him guilty to protect society. In the challenged statement, the prosecutor said to the jury:
Now, obviously, [K.H.-W.] has had his own issues with
the courts and the criminal justice system. You as jurors can
only imagine why he wouldn’t want to come in and use the
courts to settle his differences with a man who tried to kill him.

16
Sometimes, the State of Minnesota is forced to use its subpoena
power to compel reluctant witnesses to testify even when they
don’t want to. You saw [ K.H.-W.]. You saw his demeanor.
He didn’t want to be here. At times, he was just out right
hostile. But, you know what, at the end of the day, he told you
who shot him. Now, regardless of what labels we want to put
on people or our opinions of them and their lifestyle, we are all
human beings. Every one of us. Different in every way. When
one human being pulls out a gun on the streets and tries to kill
another human being, all of us in society are harmed. As
human beings and people, we all know that regardless of who
we are, when we’re mortally wounded laying on the ground
and gasping for air . . ., the last thing you’re going to do is make
up a story about who did this to you.

A prosecutor’s closing argument must be based on the evidence introduced at trial
or reasonable inferences from the evidence. State v. Morton, 701 N.W.2d 225, 237 (Minn.
2005); State v. Crane , 766 N.W.2d 68, 74 (Minn. App. 2009), review denied (Minn.
Aug. 26, 2009). “It is improper for the prosecutor to make statements urging the jury to
protect society or to send a message with its verdict.” State v. Duncan, 608 N.W.2d 551,
556 (Minn. App. 2000), review denied (Minn. May 16, 2000). In this case, the state
contends that the prosecutor’s purpose was not “to send a message” but, rather, to argue
that K.H.-W. was credible “despite his hostility on the stand, his desire not to testify, and
his desire not to cooperate with the criminal justice system.” The state compares this case
to Ferguson, in which this court approved of a closing argument in which the prosecutor
argued with particularity why the state called reluctant witnesses. See 729 N.W.2d at 616.
The state’s position is corroborated by the fact that, immediately before the challenged
statement, the prosecutor commented that K.H.-W. was reluctant to testify against someone

17
who had shot him. In light of the state’s justification for the prosecutor’s argument, we
cannot conclude that the argument is plainly erroneous.
Even if the argument were plainly erroneous, we nonetheless would conclude that
Jenkins was not prejudiced by the argument. Jenkins contends that the statement that “all
of us in society are harmed” was “highly prejudicial because there was no debate regarding
the fact that a very serious crime took place; someone shot and almost killed” K.H.-W.
Jenkins’s contention actually suggests that the prosecutor’s statement was not prejudicial.
The jury knew that someone shot K.H.-W. because both parties acknowledged that fact at
trial. The issue for the jury was the identity of the shooter. K.H.-W. testified that Jenkins
was the shooter. We believe that “there is no reasonable likelihood that” the prosecutor’s
statement that “all of us in society are harmed” had “a significant effect on the verdict of
the jury.” See Ramey, 721 N.W.2d at 302 (quotation omitted).
Thus, Jenkins is not entitled to a new trial on the ground that the prosecutor engaged
in misconduct.
Affirmed.