State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A17-2049

State of Minnesota,
Respondent,

vs.

Carlos Kendall Duncan,
Appellant.

Filed March 4, 2019
Affirmed
Cochran, Judge

Ramsey County District Court
File No. 62-CR-17-132

Keith Ellison, Attorney General, St. Paul, Minnesota; and

John Choi, Ramsey County Attorney, Adam E. Petras, 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 Hoote n, Presiding Judge; Rodenberg, Judge; and
Cochran, Judge.
U N P U B L I S H E D O P I N I O N
COCHRAN, Judge
Carlos Kendall Duncan filed this direct appeal following the e ntry of judgment of
conviction on two counts of attemp ted murder. Duncan argues th at (1) the district court

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erred in admitting evidence of two phone calls he made from jail; and (2) it was plain error
to admit testimony from three different police officers about p rior contacts with Duncan.
Duncan also raises several issues in his pro se supplemental br ief. We conclude that the
district court did not abuse its discretion in admitting eviden ce of the phone calls, the
officers’ testimony did not affect Duncan’s substantial rights, and Duncan’s pro se
arguments do not entitle him to relief. Accordingly, we affirm.
FACTS
Two men, X.S. and D.M., were sitting in a red sedan in the Doro thy Day Center
parking lot in St. Paul when a silver Mercedes SUV pulled up next to them. The driver of
the SUV pointed a gun out of the window and fired five shots in t o t h e s e d a n b e f o r e
speeding off. Both men were hit, but managed to drive to the hospital where they received
medical attention. Neither man died.
Two city sewer workers, who were working nearby, heard shots f ired and witnessed
the shooting. One called 911 to report the incident. He descr ibed the shooter as a stocky
black male, with “a scar or tattoo on his left eye,” driving a silver Mercedes. He was also
able to give the 911 operator the Mercedes’s license plate number.
Meanwhile, at the hospital, D.M. was interviewed by Officer Dia z. Initially D.M.
was not forthcoming, stating that an unknown man in an unknown vehicle shot him. But
as the conversation continued, D.M. gave more information, and eventually he described
the shooter as a black male with tattoos on his face driving a silver vehicle. Officer Diaz
was aware of a man known as “Los” who fit that description and had been seen around the
Dorothy Day Center driving a silver vehicle. When Officer Diaz asked D.M. if the shooter

3
was “possibly someone name[d] Los,” D.M. indicated that it was. Later, the officer
a d m i n i s t e r e d a p h o t o l i n e u p . I n that lineup, D.M identified ap pellant Carlos Kendall
Duncan (aka “Los”) as the shooter. A few days later, Duncan was arrested driving a silver
Mercedes SUV with a license plate number matching the one given by the city worker. He
was charged with assault and attempted murder.
During the course of the investigation, officers learned that t his was not the first
time that someone shot at D.M. Approximately a month before the Dorothy Day shooting,
D.M. and W.I. were the victims of a shooting on Bates Avenue. D.M. was not hit but W.I.
suffered a nonfatal wound. Unfortunately, at an unknown later date, W.I. was murdered in
Minneapolis.
At a pretrial hearing, the state gave notice of its intent to introduce Spreigl evidence
that Duncan was involved in the Bates Avenue shooting. The court ruled that the evidence
was inadmissible because it found that the state could not prov e by clear and convincing
evidence that Duncan was involved.
Before trial, the state served D.M. with a subpoena to testify. On August 16, 2017,
the first day of trial, D.M. failed to appear as ordered. D.M. indicated to the police that he
did not wish to testify. In order to secure his testimony, a w arrant was issued and D.M.
was arrested. D.M. was placed in the Ramsey County jail until he testified. Duncan was
a l s o h o u s e d i n t h e j a i l w h e n h e w a s n o t i n t h e c o u r t r o o m . D u r ing the lunch break on
August 17, Duncan attempted to convince D.M. not to testify. He was not successful, and
D.M. testified later that day.

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After the court had adjourned fo r the day, Duncan was returned to jail where he
made several phone calls. Inmat es at the jail are informed tha t all calls are recorded.
During two of the calls, Duncan discussed his communications wi th D.M. while in jail.
The prosecutor learned of the calls that night and informed Duncan’s attorney that the state
intended to introduce portions of the call recordings into evidence.
The next morning the judge heard from counsel regarding the sta t e ’ s r e q u e s t t o
introduce evidence of the calls. The state sought to introduce a portion of the first call
where Duncan recounted that he told D.M.: “Hey, man, you ain’t got to do this sh-t, bro. I
don’t even have no problem with you. It wasn’t personal. The [person] I had a problem
with, he dead, bro.” From the second phone call, the state sou ght to offer a clip where
Duncan again expressed that he to ld D.M. “it wasn’t personal.” Finally, the state sought
to introduce another portion of the second call where Duncan instructed the person whom
he called to tell “TLo, to put on Facebook that [D.M.] just testified.” The state provided a
transcript of the portions of the two calls that it sought to introduce.
The state argued that the judge should allow these passages to be admitted because
they are relevant to the issue of the identity of the shooter. T h e s t a t e m a i n t a i n e d t h a t
Duncan was referring to the Dorothy Day shooting during both ca lls and that Duncan’s
statements demonstrate that he was the shooter. The state also argued that the probative
value of the passages outweighed any prejudice.
Duncan objected to the admission of the recordings. He argued the statements made
during the calls could not be about the Dorothy Day shooting because they reference a dead
person and no one had died in the Dorothy Day shooting. Duncan maintained the

5
statements must instead be about some other event where someone eventually died such as
the Bates Avenue shooting and thus are inadmissible under Minn. R. Evid. 404(b) as other-
bad-act evidence. Duncan also argued the evidence was inadmissible under Minn. R. Evid.
403 as unfairly prejudicial and confusing to the jury.
The district court determined tha t Duncan was talking about the Dorothy Day
shooting, not another incident, in both calls when he said “it wasn’t personal” and was
attempting to intimidate the witness. The district court found that the statements by Duncan
were relevant to the issues of identity and intent, and “may re present an admission by
Mr. Duncan that he shot into the car that day, that he didn’t h ave a beef with [D.M.], that
it was really about someone or something else.” The district c ourt concluded that the
probative value outwe ighed the potential prejudice under rule 4 03,1 and ruled the clips
could be introduced by the state if the proper foundation was laid.
The clips of the two phone calls were played during trial over Duncan’s objection.
Prior to playing the clips, the judge provided a limiting instruction to the jury as requested
by Duncan. At the request of the jurors, the clips were played again during jury
deliberations. The jury returned a verdict of guilty on all counts.

1 The district court also examined admissibility under rule 404( b), stating “even if I were
to evaluate the admissibility of both of these calls under 404( b), I believe it would be
admissible nonetheless.” The dis trict court concluded that eve n assuming Duncan was
referring to another act in the calls, not the Dorothy Day shooting, the evidence would be
admissible under rule 404(b) for purposes of demonstrating intent and identity.

6
D E C I S I O N
I. The district court did not abuse its discretion in admitting evidence of
Duncan’s phone calls from jail.

On appeal, Duncan argues that t he following portions of the recordings of the calls
were improperly introduced into evidence.
Call 1
I get to hitting the door, I’m hitting the wall, like “Hey, [D.M.].
Hey, [D.M.]” The n-gg-r ignoring me, right? I’m like, “Hey
man, you ain’t got to do this sh-t, bro. I don’t even have no
problem with you. It wasn’t personal. The n-gg-r I had a
problem with, he dead, bro.” I ain’t, get off that sh-t fam. That
n-gg-r came in there, looked at me mean as hell, and testified
on me, man.

Call 2

I’m like “Hey, [D.M]. Look, dude, it wasn’t personal. I’m like
man, whatever, dude is dead. I ain’t got no problem with you,
fam. Dude dead, you know, it wasn’t personal.”

Duncan offers two reasons as to why the court erred in admittin g these statements. First,
he asserts that these statements were inadmissible other-bad-ac ts evidence under rule
404(b). Next, Duncan argues that the probative value of the ev idence is substantially
outweighed by the potential for confusion or unfair prejudice under rule 403.
The district court’s evidentiary rulings are reviewed for an abuse of discretion. State
v. Amos, 658 N.W.2d 201, 203 (Minn. 2003). To obtain relief, Duncan m ust show there
was an abuse of discretion and he was prejudiced as a result. Id. A district court abuses
its discretion “when its decision is based on an erroneous view of the law or is against logic

7
and facts in the record.” State v. Guzman, 892 N.W.2d 801, 810 (Minn. 2017). We address
Duncan’s two arguments in turn below.
A. Rule 404(b) analysis
Duncan argues that the statements were evidence of another crime or wrongful act.
“Evidence of another crime, wrong, or act is not admissible to prove the character of a
person in order to show action in conformity therewith.” Minn. R. Evid. 404(b). Such
evidence is commonly referred to as “ Spreigl evidence.”2 State v. Kennedy, 585 N.W.2d
385, 389 (Minn. 1998). The district court disagreed and found that the statements were not
evidence of another crime but instead evidence of the crime cha rged. In other words, the
district court found that the statements were not Spreigl evidence. On appeal, Duncan
argues this determination was an abuse of discretion.
We conclude that the district court did not abuse its discretio n in finding that
Duncan’s comments were referring to the Dorothy Day shooting. It is clear from the
statements that Duncan was attempting to dissuade D.M. from testifying about the Dorothy
Day shooting. In this context, it is reasonable to interpret “ I don’t even have no problem
with you. It wasn’t personal” as relating to the Dorothy Day shooting. This is true despite
the comment that a person is dead and the fact that no one died in the Dorothy Day
shooting.
The reference to a dead person a lone is not evidence of a crime or wrong. The
statements do not suggest that the person died of foul play. N or do they suggest that

2 State v. Spreigl, 139 N.W.2d 167 (Minn. 1965).

8
Duncan was involved in the death of this other person at all—they were simply statements
that a person is dead. And the state did not present evidence or suggest that Duncan was
somehow involved in the wrongful death of anyone. Cf. State v. Taylor, 910 N.W.2d 60,
67 (Minn. App. 2018) (“Because th e evidence of the prior shooti ng related only to [the
gang’s] prior actions, and not to a prior act committed by [the defendant], we conclude that
the evidence was not improperly used by the state as Spreigl evidence.”), review denied
(Minn. June 19, 2018). Based on the record, the district court’s interpretation of Duncan’s
statements is a reasonable one. The district court did not abuse its discretion in determining
that the statements were not Spreigl evidence.
B. Rule 403 analysis
Duncan argues that even if the statements were not Spreigl evidence, the district
court abused its discretion by n ot excluding them under rule 40 3. Relevant evidence is
generally admissible. Minn. R. Evid. 402. But under rule 403, relevant evidence may be
excluded if the probative value of the evidence is substantially outweighed by the danger
of unfair prejudice or confusion of the issues. Minn. R. Evid. 403.
Here, the district court did not abuse its discretion in admitting the clips of the phone
calls into evidence because the p robative value was strong and was not substantially
outweighed by the danger of unfair prejudice. As the district court correctly found,
Duncan’s statements made during these calls help to show identity. Duncan’s defense was
that he was not the shooter. But it is reasonable to infer fro m the statement “it wasn’t
personal” that Duncan was admitting to shooting D.M. Additionally, the statement telling
D.M. that he does not have “to do this” is probative of consciousness of guilt. See State v.

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Harris, 521 N.W.2d 348, 353 (Minn. 1994) (stating that evidence of a defendant’s witness
tampering is relevant to show defendant’s consciousness of guil t). Finally, Duncan had
attacked the credibility of D.M. during cross-examination and pointed to inconsistencies in
D.M.’s story. To counter this, the state tried to show that D.M. was reluctant to testify and
had inconsistencies in his testimony because he was afraid of r etaliation. Showing that
Duncan had attempted to dissuade D.M. from testifying is an app ropriate way to explain
D.M.’s reluctance to testify and the inconsistencies in his sto ry. State v. McArthur , 730
N.W.2d 44, 52 (Minn. 2007). For these reasons, the record demo nstrates that the
statements made by Duncan during the calls have substantial probative value.
Duncan argues that the potential prejudice outweighs any probat ive value. He
maintains this evidence is unfairly prejudicial because there is a danger the jury would see
him as a bad person. He also argues the statements are confusing because they reference a
dead person, but this case did no t involve a dead person. It a ppears that Duncan believes
that the jury would assume that he was involved in the Bates Av enue shooting or W.I.’s
eventual death. But the jury did not hear evidence of the Bate s Avenue shooting and had
no knowledge of W.I. or his death. Nor did the state present any evidence that Duncan was
involved in the death of anyone else. Moreover, the district c ourt properly gave the jury
the limiting instruction that Duncan requested. That instruction informed the jury that the
evidence of the calls was “being offered for the limited purpos e of assisting [the jury] in
determining whether the defendant committed those acts with whi ch he is charged in the
complaint” and further provided that the defendant was “not bei ng tried for and may not
be convicted of any offense othe r than the offense charged in t he complaint.” This

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instruction reduced the risk of any potential prejudice as we p resume jurors follow the
court’s instructions. Zornes v. State , 880 N.W.2d 363, 373 (Minn. 2016). Because the
probative value of the evidence was high and the risk of unfair prejudice and confusion
was low, the district court did not abuse its discretion in finding the evidence was not barred
by rule 403.
II. The district court did not commit plain error when it allowed officers to
testify about prior contacts with Duncan.

Duncan asserts that it was error for the district court to allow three officers to testify
about prior contacts they had with Duncan and the vehicle in qu estion. Officer Diaz
testified that he knew of a man named “Los” who fit the descrip tion that D.M. had given.
Officer Holte testified that he had contacts with a man named C arlos Duncan in a silver
Mercedes. And finally, Sergeant Feroni testified that he “had received information from
one of the officers that works Central District that he knows t hat vehicle, that vehicle is
familiar to him, and he had stopped the defendant in that vehicle in the past.” 3
Because Duncan did not object to this testimony at trial, this court reviews the
admission of the testimony for plain error. State v. Manthey, 711 N.W.2d 498, 504 (Minn.
2006). “Under the plain-error doctrine, the appellant must show that there was (1) an error;
(2) that is plain; and (3) the error affected substantial rights.” State v. Huber, 877 N.W.2d

3 At a pretrial hearing, Duncan and the state agreed that an off icer could testify that he
recognized the license plate number of the SUV based on prior c ontacts with Duncan but
the officer would not testify as to the reason for those prior contacts. The state asserts that
due to this agreement any argument regarding the officers’ prio r contacts testimony is
waived. Because some of the off icers’ testimony appears to go beyond the scope of the
parties’ agreement, we consider Duncan’s argument on the merits.

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519, 522 (Minn. 2016). If all three prongs are satisfied, the reviewing court correc ts the
error only if it “seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” Id. (quotation omitted).
We conclude that Duncan is not entitled to relief under the plain-error analysis. “An
error is plain if it is clear or obvious, which is typically established if the error contravenes
case law, a rule, or a standard of conduct.” State v. Webster, 894 N.W.2d 782, 787 (Minn.
2017) (quotation omitted). “Eliciting an officer’s testimony t hat he knows the defendant
from prior contacts is error if the defendant’s identity is not an issue in the case.” State v.
Valentine, 787 N.W.2d 630, 641 (Minn. App. 2010) (emphasis added) (citin g State v.
Strommen, 648 N.W.2d 681, 688 (Minn. 2002)), review denied (Minn. Nov. 16, 2010).
In this case, the identity of th e shooter was a disputed issue and the officers’
testimony was relevant to that issue. Officer Diaz testified t hat he knew someone named
“Los” that fit D.M.’s description of the shooter in order to ex plain why he asked D.M. if
“Los” was the shooter. Officer Holte testified that he had pre vious contacts with Duncan
and a silver Mercedes to explai n the connection between Duncan and the vehicle, and to
explain how the investigation le d to Duncan. And Sergeant Fero ni’s testimony was
necessary to explain the course of the investigation and why the sergeant issued a pick-up-
and-hold for Duncan. Because the testimony of these three offi cers was offered for the
purpose of showing identity, the admission of the testimony was not error that was plain.
But even assuming it was error th at was plain, the error did no t affect Duncan’s
substantial rights. In order to show the error affected his su bstantial rights, Duncan bears
the burden of showing that there is a reasonable likelihood that the error had a significant

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effect on the jury’s verdict. State v. Horst , 880 N.W.2d 24, 38 (Minn. 2016). 4 W he n
evaluating the likelihood that the erroneously admitted evidence significantly affected the
verdict, the court considers the persuasiveness of the objectio nable evidence and the
manner in which it is presented. State v. Jackson, 764 N.W.2d 612, 620 (Minn. App. 2009),
review denied (Minn. July 22, 2009).
Upon review of these factors, we conclude there is no substantial likelihood that any
error had a significant effect on the verdict. The officers’ t estimony regarding their prior
contacts with Duncan was not pervasive or persuasive. The test imony at issue was brief.
A n d , t h e s t a t e d i d n o t e m p h a s i z e o r r e p e a t t h e s t a t e m e n t s . F u rther, there are many
non-criminal reasons why officers have contact with citizens. While Sergeant Feroni did
testify that Duncan had been “stopped” before, he did not indic ate that Duncan was ever
arrested or charged with a crime in the past. Finally, the jur y heard other compelling
evidence of Duncan’s guilt. Cf. State v. Kelley , 855 N.W.2d 269, 284 (Minn. 2014)
(concluding that an erroneous jur y instruction did not have an effect on the defendant’s
substantial rights when there was other considerable evidence o f guilt). A city wor ker

4 In a footnote in his brief, Duncan asserts that elicitation of the officers’ testimony “is also
prosecutorial misconduct.” We will not consider arguments that are not fully briefed. State
v. Butcher, 563 N.W.2d 776, 780 (Minn. App. 1997), review denied (Minn. Aug. 5, 1997).
Even assuming Duncan demonstrated prosecutorial misconduct that constitutes an error
that is plain and, as a result, the burden shifts to the state on the third factor, we would
reach the same result because the record fails to demonstrate t hat any error affected
Duncan’s substantial rights as discussed infra in the body of this opinion. See State v.
Ramey, 721 N.W.2d 294, 302 (Minn. 2006) (stating “when the defendant demonstrates that
the prosecutor’s conduct constitute s an error that is plain, th e burden would then shift to
the state to demonstrate lack of prejudice; that is, the misconduct did not affect substantial
rights”).

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described the shooter as a black male with “a scar or tattoo on his left eye;” Duncan is a
black male with a tattoo near his left eye. Duncan was arreste d in an SUV matching the
description and license plate number given by the witnesses. A nd, although D.M. was at
times inconsistent and not forthcoming, he did identify Duncan as the shooter in a picture
lineup and in court. Given that the state presented a strong c ase against Duncan and the
officers’ testimony about prior contacts was not pervasive, the admission of the testimony
did not affect Duncan’s substantial rights.
III. Duncan’s pro se arguments do not entitle him to relief.
Duncan makes several arguments in his pro se brief that are unpersuasive. First he
argues that the district court committed plain error by allowin g the state to introduce
portions of the phone calls without introducing the full calls in violation of the rule of
completeness. Neither recordings nor transcripts of the full p hone calls were ever filed
with the district court and therefore are not part of the recor d. See Minn. R. Civ. App. P.
110.01 (stating that the record on appeal consists of papers fi led in the district court,
exhibits, and transcripts of the proceeding). “[A]n appellate court may not base its decision
on matters outside the record on appeal.” See Holt v. State , 772 N.W.2d 470, 481 n.5
(Minn. 2009) (quoting Thiele v. Stich , 425 N.W.2d 580, 582–83 (Minn. 1988)).
Accordingly, this court cannot review the issue.5
Duncan also argues that: the prosecutor committed misconduct by improperly
eliciting testimony; the telephone calls were admitted without proper authentication; the

5 It is this court’s opinion that Duncan is free to pursue this claim in postconviction
proceedings.

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admission of a video showing the street around the Dorothy Day center at the time of the
shooting violated his right to c onfrontation; the district cour t erred when it admitted a
Facebook video showing him threat ening the victim; the district court failed to give a
cautionary instruction on conscio usness of guilt; and Officer D iaz’s testimony regarding
his interview with D.M. was prejudicial. Because these claims are not supported by legal
argument or citations to appropriate legal authority, this court will not consider them. See
State v. Bartylla , 755 N.W.2d 8, 22 (Minn. 2008) (stating appellate courts “will n o t
consider pro se claims on appeal that are unsupported by either arguments or citations to
legal authority”).
Affirmed.