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This opinion will be unpublished and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
A17-1458

State of Minnesota,
Respondent,

vs.

Benjamin Lee Harris,
Appellant.

Filed September 4, 2018
Affirmed; motion granted
Kalitowski, Judge*

Ramsey County District Court
File No. 62-CR-16-6443

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

John Choi, Ramsey County Attorney, Thomas R. Ragatz, Assistant County Attorney, St.
Paul, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Jenna Yauch-Erickson, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Florey, Presiding Judge; Halbrooks, Judge; and
Kalitowski, 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
KALITOWSKI, Judge
Appellant Be njamin Lee Harris challenges his convictions and sentences for
second-degree murder and first -degree attempted aggravated robbery, arguing that the
district court violated his constitutional due-process rights by allowing the Bureau of
Criminal Apprehension (BCA) to consume swabs from the decedent’s car door handle for
DNA testing. We affirm.
D E C I S I O N
Appellant was charged with two counts of second -degree murder and one count of
first-degree attempted aggravated robbery. The complain t alleged that appellant
approached a male and female sitting in a car parked on the street and demanded the
couple’s money. The male and female got out of the car, and the male attempted to disarm
appellant. Appellant shot the male twice and then ran away. Police collected two swabs of
DNA from the driver side door handle of the victim’s car.
The state notified defense counsel pursuant to Minn. R. Crim. P. 9.01 that it intended
to consume the entire DNA sample of evidence collected from the driver side door of the
victim’s car. The BCA, responsible for testing the swabs, concluded that one of the swabs
had a low amount of DNA and requ ested to consume the second swab in an attempt to
increase the chances of having enough DNA to extract a profile. Defense counsel objected
to the consumption . The district court denied appellant’s motion objecting to the
consumption of the DNA evidence f rom the driver side door. The BCA consumed both

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DNA samples, but the test produced no interpretable result “ [d]ue to insufficient genetic
information.”
Subsequently, t he district court found appellant guilty of all three counts. It
sentenced appellant t o 480 months in prison for count I and 44 months, concurrent, for
count III. It did not enter a conviction for count II, finding it was a lesser-included offense
of count I.
Appellant argues that his constitutional due -process rights were violated when th e
district court denied his motion objecting to the consumption of both DNA samples. This
court applies the de novo standard of review when determining whether a constitutional
violation has occurred. State v. Burkland , 775 N.W.2d 372, 374 (Minn. App. 20 09).
“[E]rrors violating constitutional rights can be divided into two categories: ‘trial errors’
and ‘structural defects.’” State v. Dorsey , 701 N.W.2d 238, 25 2 (Minn. 2005) (citation
omitted). In cases involving trial errors, appellate courts apply a “harmless error” test. Id.
“An error is harmless beyond a reasonable doubt if the jury’s verdict was surely
unattributable to the error.” State v. Davis, 820 N.W.2d 525, 533 (Minn. 2012) (cita tion
and quotation omitted). If there is a reasonable possibility that the verdict might have been
different without the error, that error is prejudicial and reversal is warranted. State v. Post,
512 N.W.2d 99, 102 (Minn. 1994). On the other hand, “[s]tructural errors require reversal”
without a showing of prejudice because they cannot be classified as harmless error.
Dorsey, 701 N.W.2d at 253. “[S]tructural errors are defects in the constitution of the trial
mechanism, which de fy analysis by harmless -error standards.” Id. at 252 (quotation
omitted).

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In his main brief, appellant raises no argument that the denial of his motion objecting
to the consumption of the DNA evidence was prejudicial. And he further fails to make an
argument concerning structural error in his main brief . Appellant addresses the issues of
prejudice and structural error for the first time in his reply brief, stating that “[a] standard
prejudice analysis simply cannot apply” and acknowledging he cannot show prejudice or
what impa ct, if any, the error he alleges had on the verdict. Because appellant
acknowledges he cannot show prejudice, which is necessary for reversal due to a trial error,
we only consider appellant’s attempted structural-error argument.
Generally, we may decline to review issues raised for the first time in an appellant’s
reply brief because they are “not proper subject matter” for the reply brief . State v. Yang,
774 N.W.2d 539, 558 (Minn. 2009). We review forfeited issues for plain error. State v.
Vasquez, 912 N.W.2d 642, 650 (Minn. 2018). “A defendant is entitled to relief from plain
error if (1) there was an error (2) the error was plain , and (3) the error affected [his]
substantial rights.” Id. An error affects a defendant’s substantial rights “if it significantly
influences the verdict by going to a critical issue at the trial or is central to the prosecution’s
case.” Id.
We conclude that appellant forfeited his arguments concerning structur al error
because he failed to raise a structural -error argument in his main brief. And the district
court’s denial of appellant’s motion objecting to the consumption of DNA swabs is not
plain error because appellant’s substantial rights were not affected by the consumption of
the evidence. The DNA evidence was not central to the prosecution’s case or critical to a
determination of appellant’s guilt because the results of the testing w ere inconclusive.

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Further, appellant acknowledges that he cannot demonstrate what impact the consumption
of both swabs had on the verdict.
Appellant also raises an argument for the first tim e on appeal that a balancing test
should be applied to the proposed consumption of DNA evidence. The supreme court has
stated that “[a] defendant’s objection to the admission of evidence preserves review only
for the stated basis for the objection or a basis apparent from the context of the objection.”
Vasquez, 912 N.W.2d at 649 . In the district court , appel lant objected to the st ate’s
consumption of both swabs, arguing consumption would violate his right to due process
and would destroy evidence that must be preserved. He did not argue for a balancing test
in his motion objecting to the consumption of the DNA evidence. We conclude that this
issue is also forfeited.
We note that a ppellant received proper notice of the BCA’s intent to consume the
entire DNA sample and of his right to have an expert present at the testing. Minn. R. Crim.
P. 9.01, subd. 1(4)(b) provides that
the prosecutor must allow the defendant to conduct reasonable
tests. If a test or experiment, other than those conducted under
Minn. St at. ch. 169A , might preclude any further tests or
experiments, the prosecutor must give reasonable notice and
opportunity t o the defense so that a qualified expert may
observe the test or experiment.

In interpreting this rule, the supreme court has held that
[i]deally, a defendant should be provided with the actual DNA
sample(s) in order to reproduce the tests. As a practical matter,
this may not be possible because forensic samples are often so
small that the entire sample is used in testing. Consequently,
access to the data, methodology, and actual results is crucial so

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a defendant has at least an opportunity for i ndependent expert
review.

State v. Schwartz, 447 N.W.2d 422, 427 (Minn. 1989). We conclude that the district court
did not err in denying appellant’s motion objecting to the consumption of both DNA
samples.
The state filed a motion to strike new arguments in appellant’s reply brief
concerning structural error. Because we conclude these arguments are forfeited for the
reasons discussed here, the state’s motion to strike is granted.
Affirmed; motion granted.