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This opinion will be unpublished and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
A17-1680

State of Minnesota,
Respondent,

vs.

Shane Lester Gullickson,
Appellant.

Filed September 10, 2018
Affirmed
Kirk, Judge

Wabasha County District Court
File No. 79-CR-17-6

Lori Swanson, Attorney General, Michael Everson, Assistant Attorney General, St. Paul,
Minnesota; and

Karen Kelly, Wabasha County Attorney, Wabasha, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Veronica M. Surges, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Ross, Presiding Judg e; Schellhas, Judge; and Kirk,
Judge.
U N P U B L I S H E D O P I N I O N
KIRK, Judge
Appellant challenges his convictions of criminal-vehicular operation and second-
degree assault with a dangerous weapon, arguing that the district court erred in denying his

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proposed jury instruction defining a dangerous weapon , the prosecutor committed
misconduct by misstating the evidence and using inflammatory language , and the
cumulative effect of these trial errors deprived him of his due -process right to a fair trial .
Appellant also raises several pro se arguments. We affirm.
FACTS
On December 31, 2016, appellant Shane Lester Gullickson and his girlfriend S .T.
went out to lunch. S.T. testified that appellant ordered a Long Island iced tea, but they left
the restaurant when the food arrived because of an issue with the se rvice. Appellant was
angry about the situation and drove to a second restaurant, but S .T. refused to get out of
the vehicle, causing appellant to get even angrier.
S.T. testified that appellant then started driving home and sped up to 80 miles per
hour in a 55 mile per hour zone . As appellant drove, S .T. called K.H., a mutual friend.
S.T. told K.H. that appellant was driving at a high rate of speed and had crossed the
centerline but that he had pulled back over before the other car was near them. At some
point during the drive, appellant told S.T. that he would kill them both . They stopped on
the way home, and appellant went into a bar, leaving S.T. in the car.
K.H. and her husband J.H. drove to the bar. J.H., who had known appellant for over
ten years, went inside the bar and found appellant sitting at the bar with a beer and a shot
of liquor in front of him . J.H. testified that appellant had bloodshot eyes, smelled like
alcohol, and appeared to be intoxicated. J.H. described appellant’s emotio nal state as
“threatening,” and he was concerned that appellant might hurt himself or others. S.T. and
K.H. also went inside the bar briefly. When appellant decided to leave the bar, S.T., J.H.,

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and K.H. followed him out to his car . J .H. testified that he tried unsuccessfully to take
appellant’s car keys from him because he thought appellant should not be driving.
Appellant got into the driver’s seat of the car and turned on the engine. In an effort
to prevent appellant from driving, S .T. got partway into the driver’s side and tried to take
the keys from the ignition. As appellant and S.T. struggled for the keys, appellant punched
S.T. in the ribs . While S.T. and J.H. were still standing next to the open driver’s door,
appellant put the vehicle in reverse and backed up, striking S.T. and J.H. with the door and
injuring them both. Appellant then drove away. As he was driving southbound, he swerved
into the northbound lane and struck another vehicle, injuring the driver.
A resident of a nearby house heard the impact of the crash and looked outside to see
what had happened. The resident observed appellant quickly walking away from the scene.
Emergency personnel responded to the scene. Appellant was not present but law
enforcement located him later that evening. During a police interview that same evening,
appellant characterized himself as being very angry and frustrated that day, stating “I was
more angry than I think I ’ve been ever.” Appellant acknowledged that his anger got the
best of him that day.
The state charged appellant with three counts of criminal-vehicular operation under
Minn. Stat. § 609.2113, subd. 2 (2016), and two counts of second-degree assault with a
dangerous weapon under Minn. Stat. § 609.222, subd. 1 (2016) . Following a jury trial,
appellant was found guilty on all charges. This appeal follows.

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D E C I S I O N
I. The district court did not err in its jury instruction on the definition of
“dangerous weapon.”

Appellant argues that the district court erred in denying his proposed jury instruction
defining a dangerous weapon. This court “review[s] a district court ’s refusal to give a
requested jury instruction for abuse of discretion.” State v. Scruggs, 822 N.W.2d 631, 640
(Minn. 2012). A district court properly exercis es its discretion “if the instructions read as
a whole ‘correctly state[] the law in language that can be understood by the jury. ’” Id. at
642 (quoting State v. Anderson , 789 N.W.2d 227, 239 (Minn. 2010)) (alteration in
original). Under Minn. Stat. § 609. 02, subd. 6 (2016), a dangerous weapon includes any
“device or instrumentality that, in the manner it is used or intended to be used, is calculated
or likely to produce death or great bodily harm[.]”
Here, the district court instructed the jury on the de finition of a dangerous weapon
as defined in the Minnesota Practice Criminal Jury Instruction Guide: “A ‘dangerous
weapon’ is . . . anything else that, in the manner it is used or intended to be used, is known
to be capable of producing death or great bodily harm.” 10 Minnesota Practice, CRIMJIG
13.10 (2015). Appellant argues that CRIMJIG 13.10 incorrectly states the law because the
statute uses the phrase “calculated or likely to” and CRIMJIG 13.10 uses the phrase
“known to be capable of.” This court addressed this argument in State v. Weyaus, holding
that “CRIMJIG 13.10 correctly states the statutory dangerous -weapon definition in
language that a jury can understand.” 836 N.W.2d 579, 583 (Minn. App. 2013) (applying
10 Minnesota Practice, CRIMJIG 13 .10 (2006)), review denied (Minn. Nov. 13, 2013).

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Appellant argues that Weyaus is not applicable because in that case there was no request
for a different jury instruction at the district court. Despite the lack of an objection at the
district court in Weyaus, appellant’s argument is unavailing. This court fully analyzed the
difference between the statutory language and CRIMJIG 13.10, and we agree with our prior
analysis. Id. at 582-85.
II. The prosecutor did not commit misconduct.

Appellant argues that the prosecutor committed prosecutorial misconduct by
suggesting S.T. was a victim of domestic violence and referencing appellant’s anger during
closing argument. Appellant did not object to the prosecutor’s closing argument below .
“[B]efore an appellate court reviews an unobjected -to error, there must be (1) error; (2)
that is plain; and (3) the error must affect substantial rights.” State v. Griller, 583 N.W.2d
736, 740 (Minn. 1998). For unobjected-to prosecutorial misconduct, our review is under a
modified plain-error standard. State v. Ramey, 721 N.W.2d 294, 302 (Minn. 2006). If an
appellant establishes that the prosecutorial misconduct is plain error, then the burden shifts
to the state to show that the misconduct did not affect the appellant’s substantial rights. Id.
If all prongs of the modified plain-error standard are met, “the court then assesses whether
the error should be addressed to ensure fairness and the integrity of the judicial
proceedings.” Id. (citing Griller, 583 N.W.2d at 740).
During closing argument, a prosecutor “may present all legitimate arguments on the
evidence and all proper inferences that can be drawn from that evidence.” State v. Pearson,
775 N.W.2d 155, 163 (Minn. 2009). But a prosecutor may not argue facts not in evidence.
State v. Lehman , 749 N.W.2d 76, 86 (Minn. App. 2008) , review denied (Minn. Aug. 5,

6
2008). A prosecutor may not intentionally misstate the evidence or advance arguments
calculated to inflame the jury ’s passions. State v. Salitros , 499 N.W.2d 815, 817 (Minn.
1993).
Here, appellant argues that the prosecutor made reference to facts not in evidence
by suggesting that S.T. may have been reluctant to testify honestly because she was a victim
of domestic violence. However, the jury heard testimony that appellant and S.T. were in a
relationship and that appellant punched her in the ribs and then backed into her with his car
door during the incident . These allegations could constitute domestic violence, an d the
prosecutor did not refer to any other incidents of domestic violence. See Minn. S tat.
§ 518.01B, subd. 2 (2016) (defining “domestic abuse” to include physical harm against a
person involved in a significant romantic or sexual relationship). On this record, appellant
has not shown that the prosecutor committed misconduct by referring to facts not in
evidence.
Appellant also argues that the prosecutor committed misconduct by repeatedly
referring to appellant’s anger because the comments were intended to inflame the jury’s
passions and prejudices. The state argued to the jury that appellant assaulted S.T. and J.H.
by intentionally inflicting bodily harm on them. See Minn. Stat. § 609.02, subd. 10(2)
(2016) (defining assault). Our review of the record shows that the prosecutor’s references
to appellant’s anger and frustration went directly to his state of mind and presented an
argument for why appellant intentionally inflicted bodily harm on his girlfriend and long-
time friend . On this record, appellant has not shown that the prosecutor committed
misconduct by advancing arguments calculated to inflame the jury’s passions.

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Furthermore, even if we were to conclude that the state committed prosecutorial
misconduct here, there is nothing in the record to establish that it had a substantial impact
on the jury’s verdict, which was overwhelmingly supported by the record.
III. Appellant failed to show any error warranting a new trial.

An appellant is entitled to a new trial if the cumulat ive effect of the trial errors
effectively denied the appellant a fair trial. State v. Jackson, 714 N.W.2d 681, 698 (Minn.
2006). “Cumulative error exists when the cumulative effect of the errors and indiscretions,
none of which alone might have been eno ugh to tip the scales, operate to the defendant’s
prejudice by producing a biased jury.” State v. Penkaty , 708 N.W.2 d 185, 200 (Minn.
2006) (quotation omitted ). Because we find neither trial error nor prosecutorial
misconduct, there was no error here, and appellant’s argument that he is entitled to a new
trial based on cumulative trial errors must fail.
IV. Appellant’s pro se arguments lack merit.

Appellant raises a number of arguments in his pro se supplemental brief. Appellant
first argues that he received ineffective assistance of counsel. To prevail on an ineffective-
assistance-of-counsel claim, appellant “must affirmatively prove that his counsel’s
representation ‘fell below an objective standard of reasonableness’ and ‘that there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.’” Gates v. State , 398 N.W.2d 558, 561 (Minn.
1987) (quoting Strickland v. Washington, 466 U.S. 668, 688, 104 S. Ct. 2052, 2064 (1984)).
Careful review of the record indicates that appellant’s counsel’s representation did not fall
below an objective standard of reasonableness.

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Appellant next argues that the evidence in this case is insufficient to sustain his
convictions. “We limit our re view of the sufficiency of the evidence to ascertaining
whether the jury , giving due regard to the presumption of innocence and to the state’s
burden of proving guilt beyond a reasonable doubt, could reasonably have found the
[appellant] guilty.” State v. Webster, 894 N.W.2d 782, 785 (Minn. 2017) (alteration in
original) (quotation omitted). This involves adopting “the view of the evidence most
favorable to the state [and] assuming the jury believed the state’s witnesses and disbelieved
any contradictory evidence.” Id. (quotation omitted). Appellant’s arguments go to the
weight of the evidence and whether certain evidence was contradicted or unconvincing.
However, viewing the evidence in the light most favorable to the state and disbelieving any
contradictory evidence, the evidence here is sufficient to sustain all three of appellant’s
convictions.
Appellant also argues that he should not have been sentenced for multiple charges
arising out of the same conduct. Although Minn. Stat. § 609.035, subd. 1 (2016), provides
that a court may only enter a sentence for one crime arising out of a single behavioral
incident, “courts are not prevented from giving a defendant multiple sentences for multiple
crimes arising out of a single behavioral incident if: (1) the crimes affect multiple victims;
and (2) multiple sentences do not unfairly exaggerate the criminality of the defendant ’s
conduct.” State v. Skipintheday , 717 N.W.2d 423 , 426 (M inn. 2006). Here, the district
court entered sentence s for appellant’s three convictions , each of which related to a
different victim . The sentences are concurrent and do not unfairly exaggerate the
criminality of appellant’s conduct.

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Finally, appellant argues that the prosecutor vindictively prosecuted him and that
the district court judge made inappropriate comments as the jury was exiting the courtroom
to deliberate. The record does not support appellant ’s contention that the district court
judge made any inappropriate comments in front of the jury or that the prosecutor’s
charging decision was vindictive.
Affirmed.