Paul Miguel Engen, 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This opinion will be unpublished and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
A17-1440

Paul Miguel Engen, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed March 19, 2018
Affirmed
Rodenberg, Judge

Hennepin County District Court
File No. 27-CR-14-8289

Cathryn Middlebrook, Chief Appellate Public Defender, Rachel F. Bond, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

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

Michael O. Freeman, Hennepin County Attorney, Linda M. Freyer, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Considered and decided by Rodenberg, Presiding Judge; Bjorkman, Judge; and
Smith, Tracy M., Judge.
U N P U B L I S H E D O P I N I O N
RODENBERG, Judge
Appellant Paul Miguel Engen appeals from the district court’s denial of his petition
for postconviction relief. Appellant argues th at the prosecutor committed misconduct by

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improperly shifting the burden of proof during rebuttal argument and, because of that, he
should have a new trial. We affirm the district court’s denial of appellant’s petition.
FACTS
N.G.’s car was parked on a city street while she visited a relative. While N.G. stood
on the sidewalk talking to her brother, she heard a vehicle accelerate and then heard a crash.
A Chevrolet Tahoe had slammed into her car. N.G. saw a man, later identified as appellant,
exit the driver’s side of the Tahoe. She sa w another man exit from the passenger’s side.
Appellant apologized to N.G. and asked that she not call the police, but N.G.’s brother
called the police. When police arrived, appellant first told them that the other man was
driving. When that man becam e upset, appellant admitted that he had been the driver.
Appellant’s breath registered a 0.216 alcohol concentration on a preliminary breath test.
Appellant had poor balance, slow and slurred speech, and an odor of alcohol on his breath.
Appellant was arrested and taken to the police station where, after being read the Minnesota
Implied Consent Advisory, he refused to take a breath test. The state charged appellant
with one count of felony driving while impaired (DWI) and one count of felony refusal to
submit to a chemical test.
At trial to a jury, appellant testified that he was not driving the Tahoe when it
crashed. He claimed that he had exited via the driver’s side door because the passenger’s
side door was inoperable after the crash. Appellant had said nothing of this on the night of
the crash, and instead had admitted shortly afte r the crash that he had been driving. In
rebuttal argument, the prosecutor mentioned that the only evidence of the passenger’s side
door having been jammed was appellant’s trial testimony. The prosecutor said:

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It would have been nice, admittedly, to have some work done
on his truck, have some photogra phs of the accident. I wish
we had them. But keep in mind the first time anyone from the
State of Minnesota heard that story about [appellant] crawling
over because the passenger door wouldn’t open was the same
time you all heard it and this accident took place last February.

Defense counsel moved for a mistrial, claiming that the prosecutor’s statements improperly
shifted the burden of proof to appellant by implying that appellant was responsible for
proving that the passenger’s side door was inop erable. The trial court denied appellant’s
motion for a mistrial. The ju ry acquitted appellant of the DWI, but found him guilty of
felony test refusal. The district court sentenced appellant to 36 months in prison.
Appellant filed a petition for postconvicti on relief, seeking a new trial, on account
of prosecutorial misconduct.1 The postconviction court denied appellant’s petition.
This appeal followed.
D E C I S I O N
We review denial of a postconvicti on petition for abuse of discretion. Matakis v.
State, 862 N.W.2d 33, 36 (Minn. 2015). We review the postconviction court’s legal
conclusions de novo, “but on factual issues our review is limited to whether there is
sufficient evidence in the r ecord to sustain the postcon viction court’s findings.” Id.
(quotation omitted). “A postconviction court abuses its discretion when its decision is
based on an erroneous view of the law or is against logic and the facts in the record.” Riley

1 Appellant did not file a dire ct appeal from his conviction. Therefore, the issues that
appellant could have raised on direct appeal are available by postconviction petition. See
Deegan v. State, 711 N.W.2d 89, 94 (Minn. 2006) (stating that a postconviction petitioner
can raise “nearly the same br eadth” of issues in a postconviction proceeding that could
have been brought in a direct appeal).

4
v. State, 819 N.W.2d 162, 167 (Min n. 2012) (quotation omitted). A postconviction court
also abuses its discretion by acting in an arbitrary or capricious manner. Reed v. State, 793
N.W.2d 725, 729 (Minn. 2010).
Appellant argues that he is entitled to a new trial because the prosecutor committed
prejudicial misconduct by improperly shifting the burden of proof during closing argument.
We disagree. The prosecutor’s rebuttal argu ment was not misconduct and was, in any
event, harmless beyond a reasonable doubt.
Prosecutors have “considerable latitude” during closing arguments and are “not
required to make a colorless argument.” State v. Williams, 586 N.W.2d 123, 127 (Minn.
1998). Prosecutors also have “the right to fa irly meet the arguments of the defendant.”
State v. Martin, 773 N.W.2d 89, 106 (Minn. 2009). But a prosecutor’s “misstatements of
the burden of proof are highly improper and constitute prosecutorial misconduct.” State v.
Coleman, 373 N.W.2d 777, 782 (Minn. 1985).
The challenged statements were made in response to appellant’s trial testimony and
argument that he climbed out of the driver’s door because the passenger’s side door was
jammed. The prosecutor pointed out that the only evidence that the passenger’s side door
was jammed was appellant’s testimony. This claim had never been mentioned before trial
and was inconsistent with appellant’s own on-the-scene confession that he had been driving
the Tahoe. A prosecutor can fairly comment on a witness’s interest in the case. The district
court properly instructed the jury that it could properly consider each “witness’s interest or
lack of interest in the outcome of the case.” See 10 Minnesota Practice, CRIMJIG 3.12
(2015). Prosecutors may also properly comment on a defendant’s trial testimony that is

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inconsistent with earlier statements to law enforcement. State v. Dupay, 405 N.W.2d 444,
450 (Minn. App. 1987). A prosecutor’s co mment concerning the absence of evidence
supporting a defendant’s theory of the case does not necessarily amount to burden shifting.
State v. Race, 383 N.W.2d 656, 664 (Minn. 1986).
Here, the prosecutor noted that it would have been “nice to have” pictures of the
truck. But the prosecutor did not attribute this lack of evidence to appellant; instead, he
merely noted that there was no evidence about the condition of the passenger’s side door
apart from appellant’s testimony, and explained the absence of evidence in the state’s case
concerning the passenger’s side door because, until trial, no question had been raised by
anyone about that issue. This argument does not constitute misconduct.
Even assuming that the prosecutor’s stat ements constitute misconduct, appellant
would not be entitled to a new tr ial in any event, because ther e is no possibility that this
isolated comment made any difference. We apply two harmless-error standards of review
for objected-to prosecutorial misconduct. State v. Nissalke, 801 N.W.2d 82, 105 (Minn.
2011). For “less serious prosecutorial misconduct,” we determine “whether the misconduct
likely played a substantial part in influencing the jury to convict.” Id. (quotation omitted).
When reviewing “unusually serious” misconduct, we ask “whether the alleged misconduct
was harmless beyond a reasonable doubt.” Id. (quotation omitted). “We will find an error
to be harmless beyond a reasonable doubt only if the verdict rendered was ‘surely
unattributable to the error.’” Id. at 105-06 (quoting State v. McCray, 753 N.W.2d 746, 751
(Minn. 2008)). However, “the prejudicial effe ct of misconduct can be cured by proper
instructions to the jury.” State v. Whitson, 876 N.W.2d 297, 304 (Minn. 2016).

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If we were to apply the stricter test fo r serious misconduct, we would consider
whether the challenged statements are harmless beyond a reasonable doubt. Nissalke, 801
N.W.2d at 105-06. Here, the district court properly instructed th e jury both before the
alleged misconduct and after it, curing any potential prejudice. Appellant does not claim
any error whatsoever in the jury instructions. Before closing arguments, the district court
told the jury that “ne ither the arguments nor the remarks of the attorneys are evidence in
this case.” After closing arguments and appe llant’s objection to the prosecutor’s rebuttal
statements, the district court repeated this in struction and instructed the jury to disregard
the attorneys’ statements to th e extent that they differ from the court’s instructions. The
district court further instructed the jury that appellant is presumed to be not guilty, that the
burden is on the state to prove his guilt beyond a reasonable doubt, and that appellant “has
no obligation” to present evidence or prove his innocence. These instructions came after
the alleged misconduct and be fore jury deliberations. While appellant argues that
cautionary instructions do not eliminate the prejudicial effect of improper statements, “[w]e
presume that jurors follow the trial court’s instructions.” State v. Martin, 614 N.W.2d 214,
227 (Minn. 2000).
We also observe that the challenged argu ment consists of only a few lines of
argument in a trial that involved overwhelming evidence that appellant crashed the Tahoe
into N.G.’s car. N.G. saw appellant exit the driver’s side door. Appellant admitted to the
police that he was driving. The prosecutor made but fleeti ng reference to the absence of
evidence other than appellant’s testimony supporting his theory that he was not the driver—
this was surely harmless. Moreover, the ju ry acquitted appellant of the offense that

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required proof of his ha ving been the driver of the Tahoe. It convicted him of the test-
refusal charge, requiring only that police have probable cause to believe he was the driver.
Minn. Stat. §§ 169A.20, subd. 2, .51, subd. 1(b) (2016). Th e prosecutor’s statement did
not have the effect that appellant claims it had. The comment was harmless beyond any
reasonable doubt.
Because we see no prosecutorial misconduct, and because any misconduct that can
even be theorized was harmle ss beyond a reasonable doubt, the postconviction court did
not abuse its discretion in denying appellant’s petition.
Affirmed.