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This opinion will be unpublished and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
A18-0092

State of Minnesota,
Respondent,

vs.

Jamere Gene Reese,
Appellant.

Filed December 17, 2018
Affirmed
Reyes, Judge

Ramsey County District Court
File No. 62-CR-17-2080

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

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

Cathryn Middlebrook, Chief Appellate Public Defender, John Dono van, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Connolly, Presiding Judge; Larkin, J udge; and Reyes,
Judge.
U N P U B L I S H E D O P I N I O N
REYES, Judge
Appellant challenges his conviction of possession of a firearm by an ineligible
person, arguing that the distri ct court plainly erred by provid ing a no-adverse-inference

2
instruction to the jury regardin g his decision not to testify w ithout first obtaining his on-
the-record consent to giving such an instruction. We affirm.
FACTS
On February 22, 2017, appellant Jamere Gene Reese visited his f riend, K.V., at
K.V.’s apartment in St. Paul. The two men talked for a short time, then K.V. told appellant
that he was going to take a nap in the bedroom. Appellant rema ined in the living room.
After a few minutes, K.V. heard a gunshot sound. Upon returnin g to the living room, he
discovered a shattered window and the smell of gun smoke. He f ound appellant standing
by the apartment door, in a state of shock. Appellant fled but, before he did, K.V. witnessed
something resembling a small black gun in appellant’s hand.
S.M. lived down the hall from K. V.’s apartment. He also heard the gunshot that
day and described it as “unmista kable.” After hearing the soun d, S.M. looked out of his
window, which faced the area behind the apartment complex, and witnessed a man exit the
building and run towards a chai n-link fence. S.M. described th e man as a black male, in
his mid-twenties, between 5’10- 6’0 tall, wearing a black dress shirt and black pants. S.M.
observed the man attempt to climb the chain-link fence and drop what S.M. perceived to
be a black .45 handgun. The man retrieved the gun and hastily walked away. S.M. called
911.
When the police arrived, they knoc ked on the door of the apartm ent they believed
the gunshot came from. K.V. opened the door and recounted his version of the events to
the police. He provided to police a description of appellant w hich matched S.M.’s

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description of the man he saw from his apartment window. The police eventually arrested
appellant, and the state charged him with possession of a firearm by an ineligible person.
The district court held a two-day jury trial. Before voir dire , the district court
presented appellant and his counsel with draft jury instruction s for their review.
Appellant’s counsel told the district court that he reviewed th e draft jury instructions a
second time and had nothing to add. At no time did the district court ask appellant on the
record whether he wanted to have the no-adverse-inference instruction read to the jury.
During trial, S.M., K.V., and several officers testified on beh alf of the state. The
state played for the jury footage from a surveillance video that corroborated what S.M. saw
from his apartment window. Appellant did not testify, present any evidence, or call any
witnesses. Appellant and his counsel reviewed on the record th e formal waiver of
appellant’s right not to testify. When asked by his counsel wh ether all of his questions
about the waiver had been answered, appellant responded affirmatively.
After both parties rested, the di strict court instructed the ju ry. In regard to
appellant’s right to remain silent, the district court instructed the jury that, “The defendant
has a right not to testify. This right is guaranteed by federa l and the state constitutions.
You should not draw any inference from the fact that the defendant has not testified in this
case.” Appellant did not object to the giving of this instruction. The jury found appellant
guilty. This appeal follows.

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D E C I S I O N
Appellant seeks reversal of his conviction and remand for a new trial because the
district court erroneously gave a no-adverse-inference instruct ion without his personal
consent on the record.
Because appellant did not object when the district court gave t he no-adverse-
inference instruction, this court reviews appellant’s argument for plain error. State v.
Gomez, 721 N.W.2d 871, 880 (Minn. 2006 ). Under the plain-error anal ysis, we must
determine whether (1) there was error; (2) that was plain; and (3) that affected appellant’s
substantial rights. State v. Kuhlmann, 806 N.W.2d 844, 852 (Minn. 2011). Error is “plain”
if it is clear or obvious. Id. The third prong is satisfied if the error was prejudicial an d
affected the outcome of the case. Gomez, 721 N.W.2d at 880. If all three prongs are met,
then this court assesses whethe r it should address the error to ensure the fairness and
integrity of the judicial proceedings. Kuhlmann, 806 N.W.2d at 852-853. If one prong of
the plain-error test is not met, there is no need to consider the other prongs. Id. at 853.
A defendant’s failure to testify shall not be alluded to by the district court. Minn.
Stat. § 611.11 (2018). The district court may instruct the jur y not to draw any inferences
from the fact that defendant did not testify only if defendant requests that the district court
do so. Gomez, 721 N.W.2d at 880 (emphasis added). The parties agree, as do we, that the
district court plainly erred in giving a no-adverse-inference instruction without appellant’s
on-the-record consent. However, the state argues that appellant nevertheless fails to meet
the “heavy burden” of showing that the error affected his subst antial rights. See State v.
Darris, 648 N.W.2d 232, 240 (Minn. 2002). Appellant presents two arguments in support

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of his position that the district court’s error affected his substantial rights. Each argument
will be addressed in turn.
Appellant first argues that, because the state failed to present sufficient evidence to
support his conviction, the no-adverse-inference instruction had a significant effect on the
outcome of the case. We disagree.
Appellant relies on Gomez for the proposition that a district court’s error has no
effect on the outcome of a case if the state produces an overwhelming amount of evidence.
721 N.W.2d at 881-82. Appellant contends here that the state’s evidence was lacking
because it failed to submit an actual firearm into evidence, it lacked forensic evidence
connecting him to the crime scene, the state found a bullet cas ing at the scene but DNA
evidence could not connect it to appellant, the surveillance-vi deo footage did not show a
clear view of the suspect’s face and did not feature sufficient detail to affirmatively identify
appellant, S.M. could not identify appellant as the man he observed from his window, and
K.V.’s testimony was inconsistent and not credible.
The state produced sufficient ev idence which, observed in its t otality, supported
appellant’s conviction. The evide nce included a bullet casing found in the living room
where appellant was at the time K.V. heard the gunshot. It also included S.M.’s testimony
that, after hearing the gunshot, he first observed the flash of a person running down the hall
through the peephole of his front door, then he observed the suspect from his window. The
surveillance-video footage corroborated S.M.’s testimony. Both appellant and the man in
the surveillance-video footage were dressed in all black and ap peared to have the same

6
length of hair. S.M.’s experience with firearms reinforced his identification of the object
dropped by the man as a black .45 caliber handgun.
K.V.’s testimony, although somewhat inconsistent, also provided support for the
state’s case. K.V. maintained that he observed something small and black in appellant’s
hand before appellant fled his apartment, even though K.V. could not confirm that what he
saw was a firearm. On the day of the incident, K.V. told police that appellant was dressed
in all black clothing, consistent with what S.M. saw from his window.
Second, appellant argues that the no-adverse-inference instruct ion exacerbated the
jury’s natural inclination to connect appellant’s silence with guilt. We are not persuaded.
Appellant argues that K.V.’s inconsistent testimony left many u nanswered
questions in the minds of jurors and that this increased the ju ry’s need to hear appellant’s
version of events to assist in clarifying those questions. He contends that the no-adverse-
inference instruction impermissibly reminded the jury that he w as not going to provide a
valid explanation of the incident.1
By its terms, a no-adverse-infere nce instruction calls a defend ant’s silence to the
jury’s attention. McCollum v. State, 640 N.W.2d 610, 617 (Minn. 2002). However, this
court presumes that jurors follow instructions. State v. Griffin , 887 N.W.2d 257, 262

1 Appellant relies on Justice Steven’s dissent in Lakeside v. Oregon for the proposition that,
while jurors have a natural inclination to associate a defendan t’s silence with guilt, in
circumstances where the jury has in fact overlooked the silence , giving a no-adverse-
inference instruction is like “t elling [the jury] not to think of a white bear.” Lakeside v.
Oregon, 435 U.S. 333, 345 (1978) (Stevens, J., dissenting) (emphasis added). Justice
Stevens stated that a jury might overlook the defendant’s failure to testify when the whole
story has been told by several other witnesses or when the pros ecutor’s case is especially
weak. Id. Neither of these circumstances exist in appellant’s case.

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(Minn. 2016). Speculation as to prejudice caused by a no-adverse-inference instruction is
insufficient on plain-error review. State v. Johnson, 915 N.W.2d 740, 746 (Minn. 2018).
Here, appellant’s speculation as t o the alleged prejudice he su ffered is insufficient
to overcome the presumption that jurors follow instructions giv en by the district court.
A n d , a s w e h a v e a l r e a d y d i s c u s s e d , t h e s t a t e p r o d u c e d s u b s t a n t ial evidence against
appellant. Therefore, we conclude that the jury would not have reached a different verdict
but for the no-adverse-inference instruction.
Since appellant has failed to p rove that the no-adverse-inference instruction caused
him prejudice or affected the outcome of the verdict, this cour t need not assess whether it
should address the error to ensure the fairness and integrity of the judicial proceedings.
Affirmed.