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This opinion will be unpublished and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
A17-1877

State of Minnesota,
Respondent,

vs.

Terry Marcell Allen,
Appellant.

Filed October 1, 2018
Affirmed
Smith, John, Judge*

Traverse County District Court
File Nos. 78-CR-16-106, 78-CR-17-43

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

Matthew P. Franzese, Traverse County Attorney, Wheaton, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Jessica Merz Godes, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Halbrooks, Presiding Judge; Hooten, Judge; and Smith,
John, 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
SMITH, JOHN, Judge
We affirm appellant’s conviction of terroristic threats because the prosecutor did
not commit misconduct during closing arguments.
FACTS
Appellant Terry Marcell Allen and his housemate B.N. engaged in a verbal and
physical altercation. During the altercation, Allen entered B.N.’s bedroom, where she was
sitting on her bed. He hit the left side of her face with his fist. They continued yelling at
each other, and B.N. activated the recor der on her cell phone. Allen then approached her
again, and she said, “Would you wanna hit this side now?” Allen responded, “I might kill
you.” The statement made B.N. feel scared; she left the house and later reported the
incident to the police. Allen was charged with domestic assault and terroristic threats.
After a jury trial, he was convicted of both charges and sentenced to 16 months’
imprisonment.
D E C I S I O N
When, as here, an appellant claims prosecutorial misconduct based on unobjected -
to conduct, we apply a modified plain-error test. State v. Ramey, 721 N.W.2d 294, 299 -
300 (Minn. 2006). The test requires that the appellant establish that the misconduct was
error and that the error was plain . Id. at 302. Then the burden shifts to the sta te to show
that there is no reasonable likelihood that the misconduct had a significant effect on the
jury’s verdict. Id. Finally, we determine “whether to address the error to ensure fairness
and integrity in judicial proceedings.” State v. Cao, 788 N.W.2d 710, 715 (Minn. 2010).

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A prosecutor commits misconduct by misstating the law or the state’s burden to
prove each element of the charged crime beyond a reasonable doubt. State v. Strommen,
648 N.W.2d 681, 690 (Minn. 2002). But in determining whether a prosecutor’s argument
misstates the law or burden of proof, we do not focus on isolated phrases; we consider the
argument as a whole . See State v. Jones , 753 N.W.2d 677, 691 (Minn. 2008) . T he
prosecutor is afforded leeway to present “all legitimate arguments on the evidence and all
proper inferences that can be drawn from that evidence in . . . closing argument.” State v.
Nissalke, 801 N.W.2d 82, 105 (Minn. 2011) (quotation omitted).
Allen contends that the prosecutor ’s closing argument misstated the state’s burden
of proving each element of terroristic threats by arguing that the state needed to prove only
the “mere act” of Allen saying threatening words .1 This argument is unavailing. The
prosecutor used the phrase “mere act” three times in closing argument:
It does not need to be proven to you that the defendant actually
intended to carry out the threat. Words matter. What the focus
should be is the mere act of him saying the words. I might kill
you after are you going to hit me in the other side of the
face. . . . We don’t need to prove that the defendant had the
actual intent of carrying out the threat. The mere act of saying
it is what’s important. He said [in his testimony] it was a joke.
I submit to you that’s not a joke and he was not joking when
he said that but it doesn’t matter. The mere act of him saying
it in the context of what was going on is what matters and that’s
the only thing you should be focused on.

(Emphases added.) Viewed in context of the entire argument , the phras e appropriately
asserts that Allen’s act of saying “I might kill you” establishes the first element of terroristic

1 Allen does not challenge his domestic-assault conviction.

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threats: threatening a crime of violence . See Minn. Stat. § 609.713, subd. 1 (2016). The
prosecutor also used the phrase to accurately distinguish between proving that element and
proving that Allen intended to follow through on the threat, which is not an element of
terroristic threats. See 10 Minnesota Practice, CRIMJIG 13.107 (2015) (“It need not be
proven that the defendant had the a ctual intention of carrying out the threat.”) . And the
prosecutor accompanied references to the “mere act” of Allen saying threatening words
with references to the mens rea element of terroristic threats , urging the jury to find that
Allen said the words with reckless disregard for their likely terrorizing effect. See Minn.
Stat. § 609.713, subd. 1 . The prosecutor did not misstate the law of terroristic threats or
diminish the state’s burden of proving each element of that offense.
Allen also asserts that the prosecutor misstated the state’s burden of proof by
invoking a biblical standard of judgment that “allows condemnation by one’s words
alone.”2 This argument is similarly unavailing. The prosecutor ended his argument with
the following:
In closing I want to leave you with a quote from
Matthew’s gospel, chapter twelve, verses thirty -six through
thirty-seven. But I tell you that everyone will have to give
account in the day of judgment for every empty word they have
spoken. For by your words will you be acquitted and by your
words will you be condemned. Today is the defendant’s day of
judgment for what he did on May 19, 2016. By the defendant’s
words you should find him guilty of terroristic threats and by

2 Notably, while Allen suggests that he was prejudiced by the comments because of
“inherent” prejudice in a prosecutor quoting religious authority, Allen disavows any claim
of impropriety in the mere reference to or quotation of a religious text. Cf. State v.
Wangberg, 136 N.W.2d 853, 855 (Minn. 1965) (holding prosecutor committed misconduct
by invoking scripture as a basis for conviction).

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the photographs find him guilty of domestic assault. The facts
are clear but more importantly, the law is clear. Thank you.

Viewed in context, this reference to judgment “by your words” is not misleading; it simply
reiterates the prosecutor’s earlier accurate statements that All en’s “mere words” establish
the threat element of the offense.
In sum, the prosecutor emphasized throughout his closing argument precisely what
Allen urges on appeal: that a terroristic threat involves both an act (the threat) and a mens
rea (either inten t or reckless disregard). And the prosecutor’s argument, as a whole,
accurately articulated the state’s burden to prove these elements. Accordingly, Allen ’s
plain-error claim of prosecutorial misconduct fails.
Affirmed.