Abraham Deng Woi, 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This opinion will be unpublished and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
A17-1779

Abraham Deng Woi, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed August 27, 2018
Affirmed
Florey, Judge

Olmsted County District Court
File No. 55-CR-14-7477

Cathryn Middlebrook, Chief Ap pellate Public Defender, Sean M. McGuire, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

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

Mark A. Ostrem, Olmsted County Attorney, Jennifer D. Plante, Assistant County Attorney,
Rochester, Minnesota (for respondent)

Considered and decided by Reyes, Presidi ng Judge; Ross, Judge; and Florey, Judge.
U N P U B L I S H E D O P I N I O N
FLOREY, Judge
Appellant challenges the postconviction court’s denial of relief from his conviction
for domestic assault, arguing that the distri ct court committed structural error when it
dissuaded him from a court trial and the prosecutor committed misconduct during closing

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arguments by misstating the burden of proof and asking the jury to find appellant guilty to
protect appellant’s nonvictim children from future harm. We affirm.
FACTS
Appellant Abraham Deng Woi was charged with domestic assault by strangulation,
interference with a 911 call, and domestic assault (fear) after his wife, A.K., called police
to report an assault and told the responding officer that appellant struck her on her face and
body and strangled her when she called 911. The case proceeded to trial. Before the jury
was brought to the courtroom on the first day of trial, appellant indicated his intent to waive
a jury trial. The district court expressed frustration that appellant had waited until after a
prospective jury had appeared, but indicated it was appellant’s right to do so. The district
court then stated, “Frankly, I don’t particularly think it’s a great decision to ever waive a
jury trial but it’s his right, he’s consulted w ith [counsel] and that’s what he wants to
do . . . .”
Appellant’s attorney questioned appellant about his waiver of his right to a jury trial.
The district court then inquired further. The district court asked appellant if he understood
that (1) by waiving a jury trial, the state would only need to convince one person of guilt,
rather than 12; (2) the district court “may ha ve reviewed things in the case that a jury
would never see,” such as stat ements made after the assau lt; (3) the district court’s
exposure to evidence that he ruled inadmissible, while not be ing used in a determination
of guilt, “could certainly affect . . . [the di strict court’s] thinki ng unconsciously or
unintentionally”; (4) a jury, on the other hand, would not be exposed to evidence the district
court ruled inadmissible; (5) a waiver would re sult in the district court making a decision

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as to guilt and admissibility of evidence; and (6) although the district court would “separate
those roles . . . to the best of [its] ability,” it is “not the sa me as having the . . . admissible
evidence only heard by a jury.” After appellant confirmed his request to waive a jury trial,
defense counsel requested additional time to “go over the finer points” of the district court’s
questioning. After conferring with defense counsel, appellant decided to exercise his right
to a jury trial.
At trial, A.K. testified that she calle d the police because she was arguing with
appellant and wanted him to leave. She testified that appellant did not hit her, and she did
not recall telling police that he struck or strangled her. She testified that appellant did not
place his hands around her neck or remove the phone from her hands when she called 911.
She testified that blood on her chest was fro m biting her own lips. She denied telling the
police that appellant had assaulted her every year and that she had not previously reported
it because of their children.
The officer who responded to the 911 call i ndicated that dispatch received a call of
an adult female being struck by a male, and the phone disconnected during the call. When
he approached the apartment door, he could hear screaming, yelling, s ounds of a scuffle,
and a hysterical female. When the officer reached to open the door, the d eadbolt turned
and the door cracked open. The officer pushed the door open and observed an “extremely
upset” female facing him with teeth stained red with blood and with red drool on her face.
He observed appellant holding the woman by the shoulder and neck. The officer observed
children in the room.

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After being separated from appellant, A. K. demonstrated to the officer “the
universal choking position” when asked by the officer to describe how appellant assaulted
her. The officer testified that A.K. told him that appellant punched her in the face and all
over her body. The officer photographed blood on A.K.’s chest and the floor.
Appellant testified in his defense that hi s wife was yelling at him about money, so
he attempted to leave the house. He testified that when he tried to leave, she grabbed his
shirt to hold him back and then called 911. Appellant denied choking or hitting A.K. that
day or in the past.
During the prosecutor’s rebuttal summation, the prosecutor discussed his theme of
the case: courage. He argued:
[A.K.] told the po lice that she had b een abused in the
past by [appellant]. She told him that in the past
when . . . these assaults occurred she never called the police.
She didn’t have the courage to do that. That changed on
November 8, 2014. [A.K.] real ized that this abuse occurring
in front of her children at the hands of the defendant was
wrong. She did the right thing and she called the police. . . .
Unfortunately, that’s where [A.K.]’s courage ends. She came
in, she sat right here and just like I thought she would do, like
I predicted to you that she would do, she recanted her
statement that she gave on November 8, 2014. And just like I
told you yesterday, this case really comes down to what
version do you believe. Do you believe the statement that she
made to police on November 8, 2014, or do you believe what
she told you yesterday?
. . . .
There’s an instruction in th at jury packet about how
you’re supposed to evaluate the testimony and the
believability. I think when you lay those factors out and
compare them to the November statement, the testimony
yesterday from [A.K.] and the defendant’s testimony you’re
going to see that that scale tips— doesn’t just tip, it tips over

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to believing the version that was given to police on November
8th, 2014.
Real briefly. Briefly and in conclusion, [A.K.]’s period
of courage is over. It’s done. She doesn’t have the courage
anymore for her children to make sure this doesn’t happen in
the future. That torch, the courage, is being passed to you. I
want you to discuss the evidence. I want you to analyze it. I
want you to work together. I want you to ask each other
questions in deliberation. An d when you do all that I want
you all to have the courage to come back into this room and
find [appellant] guilty beyond a reasonable doubt of all
charges.

After the jury began to deliberate, defense counsel objected to the state’s
characterization of the burden of proof in summation as “saying this case comes down to
what version do you believe.” The district court overruled the objection.
The jury acquitted appellant of domestic assault by strangulation and interference
with a 911 call, but found him gu ilty of domestic assault. The district court convicted
appellant of the domestic-assault charge and stayed imposition of sentence.
In April 2017, appellant petitioned for postconvi ction relief. He argued that the
district court committed structural error by i ndicating that a court tr ial may be tainted by
inadmissible evidence. Appella nt also argued that the dist rict court erred in admitting
hearsay and that the prosecutor committed misconduct during trial and his closing
argument. The postconviction court summarily denied relief on all claims except one claim
of prosecutorial misconduct concerning whether the prosecutor erred in arguing that A.K.
no longer had courage for her children and that the torch (of courage) was passed to the
jury. After a hearing on that issue, the postconviction court denied relief, concluding that
the children could be considered victims in the case because it can be “reasonably infer[ed]

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that children are harmed by or suffer” from crimes committed in the home against their
mother. Any error, the postconviction court indicated, was not plain because whether the
argument was proper was “reasonably debatable.”
This appeal followed.
D E C I S I O N
We review a denial of a postconviction petition for an 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
v. State, 819 N.W.2d 162, 167 (Minn. 2012) (quotation omitted).
I. The district court did not commit structural error.
Appellant claims the postconviction court erred in denying relief because the district
court committed structural error when it interfered with his choice to waive a jury trial by
indicating it might not be impartial in a court trial.
Structural errors are “defects in the constitution of the trial mechanism, which defy
analysis by harmless-error standards” becau se “[t]he entire conduct of the trial from
beginning to end is obviously affected.” Arizona v. Fulminante, 499 U.S. 279, 309-10, 111
S. Ct. 1246, 1265 (1991) (quotation omitted). Such errors “affect[] the framework within
which the trial proceeds, rather than simply an error in the trial process itself” and “call[]
into question the reliability and fairness of the trial.” Id. at 310, 111 S. Ct. at 1265; State

7
v. Dalbec, 800 N.W.2d 624, 627 (Minn. 2011). Structural errors require automatic reversal.
Dalbec, 800 N.W.2d at 627.
The Supreme Court has recognized that it is structural error for a defendant to be
tried before a partial judge. Fulminante, 499 U.S. at 309, 111 S. Ct. at 1265 (citing Tumey
v. Ohio, 273 U.S. 510, 531-532, 47 S. Ct. 437, 444 (1927) (holding due process is denied
to defendants if the judge has a pecuniary interest in a finding of guilt)). Likewise,
“[p]ermitting a biased juror to serve is structural error requiring automatic reversal.” State
v. Fraga, 864 N.W.2d 615, 623 (Minn. 2015). In State v. Dorsey, the supreme court held
that it is structural error for a judge, acting as factfinder, to independently investigate a
factual assertion made by a witness. 701 N. W.2d 238, 253 (Minn. 2005). The supreme
court held that, by conducting its own research, the district court deprived the defendant of
“a fair trial and an impartial finder of fact.” Id.
A defendant has a constitutional right to a ju ry trial, and this is the “normal and
preferable mode of dis posing of issues of fact in crimin al cases,” but no such right to a
court trial exists. Singer v. United States, 380 U.S. 24, 34-36, 85 S. Ct. 783, 790 (1965);
see State v. Kilburn , 304 Minn. 217, 225, 231 N.W.2d 61, 65 (1975) . Under Minn. R.
Crim. P. 26.01, subd. 1(2)(a), a defendant may waive a jury trial on the issue of guilt “with
the approval of the court” after being advise d by the court of his rights and after an
opportunity to consult with counsel. The defendant’s waiver must be knowing, intelligent
and voluntary, and the district court “must be satisfied that the defendant was informed of
his rights and that the waiver was voluntary.” State v. Ross, 472 N.W.2d 651, 653 (Minn.
1991) (quotation omitted). Whether to accept a defendant’s waiver of the right to a jury

8
trial is within the district court’s discretion. State v. Linder, 304 N.W.2d 902, 905 (Minn.
1981). A district court may deny a waiver of a jury trial if there is a “legitimate concern
for [the] defendant’s right to a fair trial.” Id. For example, in Linder, the district court was
within its discretion to deny a request for a court trial when every judge in the district had
been involved in the defendant’s case, includi ng with suppressed confessions and issues
surrounding the defendant’s mental health, an issue to be determined in the second phase
of trial. Id.
We are convinced that the district c ourt did not commit structural error in
questioning appellant about his understanding of the protections afforded by a jury trial. A
district court is required to inquire into whether the waiver is intelligently made, and such
inquiry may vary with the circumstances of the case. The district court is permitted to deny
a waiver and require a jury trial if there is a risk that the defendant will be denied a fair trial
because of the district court’s in volvement in pretrial decisions. See id. Bringing these
considerations to the defendant’s attention when inquiring into th e intelligence of the
defendant’s waiver, therefore, does not impinge any of his constitutional rights or deprive
him of his constitutional right to a fair trial—particularly in light of the fact that he availed
himself of that right by rescinding the wa iver. Here, no error in the trial mechanism
permeated the trial from start to finish such that we should declare the district court’s
inquiry structural error.

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II. Appellant is not entitled to a new trial for prosecutorial misconduct.
Appellant argues that the postconviction court erred in denying his petition for relief
because the prosecutor misstated the burden of proof and made an improper argument
concerning his and A.K.’s nonvictim children.
“A prosecutor engages in prosecutorial mi sconduct when the prosecutor violates
clear or established standards of conduct, e.g., rules, laws, orders by a district court, or
clear commands in this state’s case law.” State v. Smith, 876 N.W.2d 310, 334-35 (Minn.
2016) (quotations omitted). When reviewing closing arguments for possible prosecutorial
misconduct, this court considers “the argumen t as a whole, rather than focusing on
particular phrases or remarks that may be taken out of context or given undue prominence.”
State v. Jones, 753 N.W.2d 677, 691 (Minn. 2008) (quotation omitted).
A. Misstatement of the burden of proof
Appellant argues that the prosecutor misstated the burden of proof when he argued
to the jury that resolution of the case would come down to “what version do you believe.”
Appellate courts apply two harmless-error standards for objected-to prosecutorial
misconduct. State v. Nissalke , 801 N.W.2d 82, 105 (Minn. 2011). For “less serious
prosecutorial misconduct,” we determine “w hether 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). “W e will find an error to
be harmless beyond a reasona ble 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

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(Minn. 2008)). A new trial will only be grante d based on objected -to prosecutorial
misconduct if the misconduct, “viewed in the light of the whole record, appears to be
inexcusable and so serious and prejudicial that the defendant’s right to a fair trial was
denied.” State v. Palubicki, 700 N.W.2d 476, 489 (Minn. 2005) (quotation omitted).
“[M]isstatements of the burden of proof are highly improper and constitute
prosecutorial misconduct.” State v. Coleman, 373 N.W.2d 777, 782 (Minn. 1985). But a
“prosecutor may pose rhetorical questions to the jury, aski ng it to use common sense to
determine whether the defense presented is reasonable.” State v. Bauer, 776 N.W.2d 462,
474 (Minn. App. 2009), aff’d, 792 N.W.2d 825 (Minn. 2011).
Appellant relies on State v. Strommen, 648 N.W.2d 681 (Minn. 2002), to argue that
the prosecutor committed misconduct by reduc ing the entire case to two versions and
directing the jury to believe one or the other. In Strommen, the prosecutor told the jury to
“weigh the story in each hand and decide which one is most reasonable, which one makes
the most sense.” 648 N.W.2d at 690. The supreme court he ld that the statement was a
misstatement of the state’s burden of proof, and in the context of that trial, may have played
a role in the guilty verdict. Id.
While it is true that the prosecutor argued to the jury that there were two versions of
events presented during trial, he did not argue that the jury need only decide which version
is the “most reasonable,” like in Strommen. Rather, the prosecutor discussed the
requirement of proof beyond a reasonable doub t in both his initial closing and in his
rebuttal. He also discussed the evidence that would support his theory of the case at length.
In doing so, he pointed out the credibility issues in appellant’s version of events. He then

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asked the jury to consider whether that version was believable in light of all of the state’s
evidence supporting its version of events. Th e prosecutor essentially asked the jury to
decide if appellant’s version was reasonable in comparison to the state’s version.
Further, while we do not find that the pros ecutor erred, even if he had, it was
harmless in the context of this case. First, the jury ultimately reje cted the prosecutor’s
claims that the case came down to two versi ons of events—either A.K.’s statement to
police or A.K.’s testimony—because the jury rejected large portions of both in acquitting
appellant of strangulation and interference with a 911 call, and in finding him guilty of
assault.
Second, “the prejudicial effect of misconduct can be cured by proper instructions to
the jury.” State v. Whitson, 876 N.W.2d 297, 304 (Minn. 2016); see State v. Trimble, 371
N.W.2d 921, 926-27 (Minn. App. 1985) (concluding that “the prosecutor’s misstatement
of the standard [did] not require reversal beca use the [district] cour t fully instructed the
jury on [the] presumption of innocence”), review denied (Minn. Oct. 11, 1985).1 Similarly,
the risk of prejudice is reduced if appellant addresses the misstatement of the burden during
closing arguments. See Trimble, 371 N.W.2d at 926-27. Here, defense counsel argued at
length about the prosecutor’s burden of proo f beyond a reasonable doubt and what that
meant in the context of the case.

1 In Strommen, the supreme court indicated that prope r instructions by the district court
were not sufficient to correct the burden-of-proof error. See 648 N.W.2d at 690. But that
trial suffered from a variety of reversible errors, and the prosecutorial-misconduct claim
was only considered as part of a directive to the district court on remand for a new trial.
See id.

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B. Reference to nonvictim children
Appellant argues that the prosecutor committed reversible misconduct by directing
the jury to return a guilty ve rdict to protect A.K. and appellant’s nonvictim children from
future harm.
When, as here, an appellant claims prosecutorial misconduct based on unobjected-
to conduct, this court applies a modified plain-error test. State v. Ramey, 721 N.W.2d 294,
299-300 (Minn. 2006). The test requires that appellant establish that the misconduct was
error and that the error was plain. Id. at 302. The burden then sh ifts to the state to show
that there is no reasonable likelihood that th e misconduct significantly affected the jury’s
verdict. Id. Finally, this court determines “whether to address the error to ensure fairness
and integrity in judicial proceedings.” State v. Cao, 788 N.W.2d 710, 715 (Minn. 2010).
The prosecutor is permitted to present “all legitimate arguments on the evidence and
all proper inferences that can be drawn from that evidence in . . . closing argument.”
Nissalke, 801 N.W.2d at 105 (quotatio n omitted). But, a pros ecutor may not seek a
conviction at any price. State v. Salitros , 499 N.W.2d 815, 817 (Minn. 1993). “The
prosecutor’s closing arguments must not distract the jury from its prop er role of deciding
whether the state has met its burden.” State v. Duncan, 608 N.W.2d 551, 555 (Minn. App.
2000) (quotation omitted), review denied (Minn. May 16, 2000). And the prosecutor must
avoid inflaming the jury’s passions and prejudices against the defendant. State v. Morgan, 235 Minn. 388, 391, 51 N.W.2d 61, 63 (1952 ). This court will pay special attention to
statements that may inflame or prejudice the jury when credibility is a central issue. See
State v. Turnbull, 267 Minn. 428, 435, 127 N.W.2d 157, 162 (1964).

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Appellant argues that the prosecutor violated three rules: (1) he directed the jury to
step out of the fact-finding role in order to prevent future ha rm; (2) he asked the jury to
protect nonvictims from harm; and (3) he referenced children solely to inflame the passions
of the jury.
In Duncan, this court indicated that it is misconduct for a prosecutor to direct a jury
to return a guilty verdict to protect others from future harm. 608 N.W.2d at 556; see also
State v. Friend, 385 N.W.2d 313, 322 (Minn. App. 1986) (holding it was misconduct for a
prosecutor to refer to the jurors as “protectors of youn g girls” when the alleged victims
were four young girls, and to ask during voir dire whether the jurors had heard of cases in
which a defendant was charge d, acquitted, and then subs equently committed additional
crimes). Likewise, arguments indicating the jury should return a guilty verdict to convey
a message to society or other individuals may constitute misconduct because they divert
the jury’s attention from the fact-finding role. State v. Peterson , 530 N.W.2d 843, 848
(Minn. App. 1995) (concluding a prosecutor’s remarks about multiple child victims, when
the defendant was only charged with assaulting one victim, were improper); see also State
v. Hoppe, 641 N.W.2d 315, 320 (Min n. App. 2002). However, it is not misconduct for a
prosecutor to discuss the victim’s suffering. Nunn v. State, 753 N.W.2d 657, 662 (Minn.
2008).
The prosecutor’s final argument to the jury encouraged the jury to “have courage”
and return a guilty verdict because A.K. “doesn’t have the courage anymore for her children
to make sure this doesn’t happen in the future.” The argument of the prosecutor is clearly
directed at encouraging the jury to find appellant guilty, not on the basis of the evidence,

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but in order to protect the children from futu re harm or from growing up in a home with
violence. The postconviction court reasoned that the argument was not error because the
children could be construed as victims of the assault under a dictionary definition of the
term “victim.” We disagree. The prosecutor’s ethical or moral directive to protect A.K.’s
children from “future harm,” when there is no evidence in the record that they were victims
of appellant’s violent behavior, is contrary to established Minnes ota precedent that a
prosecutor should not make arguments encouraging the jury to find guilt to protect others,
as to do so may inflame the passions of the jury and divert the ju ry from the role of
determining whether the state satisfied its burden of proving guilt beyond a reasonable
doubt. See Saltiros, 499 N.W.2d at 819; Duncan, 608 N.W.2d at 556; see also State v.
Myrland, 681 N.W.2d 415, 421 (Minn. App. 2004) (concluding the prosecutor committed
misconduct by arguing that a victim of child pornography is revictimized every time the
pornography is viewed because it was a distraction from the issue of guilt), review denied
(Minn. Aug. 25, 2004). The prosecutor’s co mments were plainly intended to inflame the
passions of the jury, and thus were plain error under established Minnesota law. See State
v. Kelley, 855 N.W.2d 269, 277 (Minn. 2014) (indicating that this court looks to the law as
it exists at the time of appellate review when considering whether an error is plain).
We next turn to the impact the statements had on the fairness of appellant’s trial.
The state, in its brief to this court, made no effort at carrying its burden of showing that the
error had no significant impact on the jury’s verdict, inst ead calling appellant’s assertion
of error “a bit baffling” and resting on the postconviction court’s conclusion that the error

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was “not ‘plain’ enough.” We must assume that the state thus concedes that the error was
prejudicial.
We must therefore assess “w hether to address the erro r to ensure fairness and
integrity in judicial proceedings.” Cao, 788 N.W.2d at 715. “A new trial based on
prosecutorial misconduct will only be granted if ‘the misconduct, considered in the context
of the trial as a whole, was so serious and prejudicial that the defendant’s constitutional
right to a fair trial was impaired.’” Myrland, 681 N.W.2d at 421 (quoting State v. Johnson,
616 N.W.2d 720, 727-28 (Minn. 2000)). Examin ing the misconduct in the context of the
whole trial, we cannot agree that we must reve rse for a new trial. The misconduct in this
case was limited to two sentences, the impact of which is questionable. The jury’s passions
were obviously not so inflamed as to convict appellant of all of the charges heard at trial—
he was acquitted of two charges. The jury wa s therefore not distract ed from its role of
determining guilt. The only guilty verdict the jury did return was supported by the strongest
evidence—the physical result of force exerted onto A.K.’s mouth which caused red-stained
drool to smear across her face and blood to drip upon her chest and the floor. On the basis
of the record as a whole, we decline to reverse appellant’s conviction.
Affirmed.