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This opinion will be unpublished and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
A18-0272

State of Minnesota,
Respondent,

vs.

Tavean Greggory McRelly,
Appellant.

Filed January 28, 2019
Affirmed
Reyes, Judge

Blue Earth County District Court
File No. 07-CR-17-4718

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

Patrick R. McDermott, Blue Earth County Attorney, Susan B. DeVo s, Assistant County
Attorney, Mankato, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Kathryn J. Lockwood, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Larkin, Presiding Judge; Connolly, 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
On appeal from a final judgment of conviction in a misdemeanor case, appellant
seeks a new trial, arguing that the prosecutor engaged in misconduct by failing to prepare

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its witness to ensure compliance with the district court’s orde r excluding references to
appellant’s prior misconduct, in cluding the existence of an ext raditable warrant. We
affirm.
FACTS
In December 2017, appellant Tavean Gregory McRelly and B.M. we re in an on-
and-off romantic relationship. On December 4, 2017, B.M. drove to visit appellant at his
mother’s apartment. B.M., appe llant, and appellant’s younger b rother smoked marijuana
in B.M.’s car, then B.M. and appellant’s younger brother return ed to the apartment for
dinner. Appellant remained in the car with B.M.’s cellphone an d car keys. Appellant’s
and B.M.’s testimony provided conflicting accounts during the jury trial of the events that
followed.
B.M. testified that appellant r eturned to the apartment visibly angry and ordered her
to leave. As B.M. gathered her belongings, appellant grabbed her by her neck and carried
her into the hallway. Appellant punched B.M. on the side of her face. The parties left the
apartment in B.M.’s car, and appellant threw B.M.’s cellphone out of the car. In appellant’s
version of the events, when he r eturned to the apartment, he asked B.M. to leave and slid
her phone to her across the kitchen counter. Appellant denied grabbing B.M. by the neck,
carrying her out of the apartment, punching her, and throwing her cellphone out of the car.
An officer responded to B.M.’s 911 call made from another apartment. He issued a citation
to appellant and jailed him based on an active extraditable war rant for his arrest out of
Missouri.

3
The district court set a date f or trial, and appellant’s counsel filed motions in limine,
including one with a draft order to prevent the state from elic iting information about
appellant’s prior misconduct, including the extraditable warran t from Missouri. The
district court granted this motion.
During cross-examination of the officer, defense counsel inqui red as to the grounds
for appellant’s arrest:
Q. Okay. [Officer], when [the prosecution] is asking you
about probable cause. In this instance, you spoke with
[B.M.], you took her at her word, and that was the basis
of arresting [appellant]?
A. There was probable cause for fifth degree domestic
assault.
Q. And that probable cause w as based on her statement?
A. That is correct.
Q. That is correct.
A. And nothing else?
1
Q. At that time it was probable cause fifth degree domestic
based on her statements and an extraditable war---

The district court interrupted the officer midsentence. Durin g a bench conference,
defense counsel stated that she sought testimony about the prob able cause for the fifth-
degree assault, not the probable cause for the arrest. The district court advised that it was
“not going to even entertain [a] mistrial at this point,” and o ffered to provide a curative
instruction. Appellant declined. Neither party mentioned the extraditable warrant for the

1 There appears to be an error in the transcript with respect to the last two answers and
questions. While the phrase “[a] nd nothing else?” is designate d as an answer in the trial
transcript, the parties do not dispute that this phrase was a question from defense counsel,
and the following statement was the officer’s answer.

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rest of the trial. The jury found appellant guilty of domestic assault with intent to inflict
bodily harm. This appeal follows.
D E C I S I O N
Appellant argues that the district court abused its discretion in refusing to consider
a motion for mistrial because the prosecutor failed to satisfy his absolute duty to prepare
his witness to ensure that the witness’s testimony complied wit h the court’s order. We
disagree.
When reviewing a claim of prosecutorial misconduct, the standar d of review
depends on whether the defendant made an objection at trial to the claimed misconduct.
State v. McDaniel , 777 N.W.2d 739, 749 (Minn. 201 0 ) . H e r e , w e r e v i e w t h e a l l e g ed
misconduct under the standard for objected-to misconduct because, although appellant did
not object at trial to the officer’s statement, he brought motions in limine, including one to
prevent the state from eliciting information about appellant’s prior misconduct. Such a
pretrial motion operates as a timely objection, precluding the need for further objection to
preserve the issue for review. State v. McNeil , 658 N.W.2d 228, 232 n.1 (Minn. App.
2003).
For objected-to misconduct, State v. Caron provides a two-tier harmless-error
standard of review. 218 N.W.2d 197, 200 (Minn. 1974). 2 For unusually serious

2 The supreme court has called into doubt the viability of Caron’s two-tiered approach for
objected-to prosecutorial misconduct, but it has yet to decide this issue. See e.g., State v.
Whitson, 876 N.W.2d 297, 304 n.2 (Minn. 2016); State v. Carridine, 812 N.W.2d 130, 146
(Minn. 2012) (applying standard for “unusually serious” misconduct without deciding the
continued applicability of the Caron test).

5
misconduct, the reviewing court must determine whether the error was harmless beyond a
reasonable doubt. State v. Nissalke, 801 N.W.2d 82, 105 (Minn. 2011) (quotation omitted).
For less-serious misconduct, we must ask whether the misconduct likely played a
substantial part in influencing the jury to find the defendant guilty. Id. (quotation omitted).
While courts continue to use Caron’s two-tier harmless-error test, caselaw is silent as to
how to distinguish between “unusually serious” and “less serious” objected-to misconduct.
Instead, courts generally default to analyzing any objected-to misconduct under the higher,
“unusually serious” standard. See State v. Wren , 738 N.W.2d 378, 394 (Minn. 2007)
(utilizing higher standard).
When applying this higher standard, several factors are relevant to the analysis. Id.
These factors include (1) how the improper evidence was present ed; (2) whether the state
emphasized it during trial; (3) whether the defendant effective ly countered it; (4) the
strength of the evidence against defendant; and (5) whether the evidence was highly
persuasive or circumstantial. Id. A new trial will be granted based on objected-to
misconduct only if, when viewed in the light of the whole recor d, the error appears to be
so inexcusable, serious, and prejudicial that it denied defendant the right to a fair trial. State
v. Palubicki, 700 N.W.2d 476, 489 (Minn. 2005).
With regard to the first factor , unlike most cases of prosecutorial misconduct, here
defense counsel elicited the testimony. Defense counsel asked an open-ended question,
“[a]nd nothing else?,” which prompted the officer to volunteer both grounds for appellant’s
arrest; B.M.’s statements and the extraditable warrant. The district court noted during the
bench conference, and we agree, that the officer would have provided inaccurate testimony

6
had he answered differently. F urther, the improper testimony w as not presented to
establish a critical element of the offense. Cf. State v. Caulfield , 722 N.W.2d 304, 314
(Minn. 2006) (finding that erroneously admitted lab report impacted verdict because state
presented report as definitive ev idence of an element of the of fense). Because defense
counsel elicited the improper, non-critical testimony, this fac tor weighs strongly in favor
of the state.
On the second factor, neither party referred to the testimony for the remainder of the
trial. Therefore, the second factor weighs in favor of the state.
With regard to the third factor, defense counsel did not counte r the improper
evidence because it did not get r aised again, and defense couns e l d e c l i n e d a c u r a t i v e
instruction by the district court. The third factor is neutral.
As to the fourth factor, overwhelming evidence against an appe llant may be enough
to establish that the jury’s exposure to prejudicial testimony did not substantially affect its
decision. McNeil, 658 N.W.2d at 233. In cases that are factually close, it is possible that
any error might have prejudicially influenced the jury and warr ant a new trial. State v.
Blasus, 445 N.W.2d 535, 541 (Minn. 1989). Here, the state did not pr esent an
overwhelming amount of evidence. The only physical evidence introduced at trial included
a transcript and audio of B.M.’s 911 call, the purchase contract of B.M.’s cell phone, and
four indiscernible photographs of B.M.’s alleged injuries. Thi s case is not squarely a
factually close one either because the outcome ultimately depen ded on the relative
credibility of appellant’s and B.M.’s testimony. Therefore, this factor is neutral.

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With regard to the fifth factor, we conclude that the improper evidence was not
highly persuasive. Testimony by a law-enforcement officer is r ecognized as having the
potential to unduly influence the jury. State v. Hogetvedt, 623 N.W.2d. 909, 915 (Minn.
App. 2001), review denied (Minn. May 29, 2001). However, the improper testimony
elicited from the officer was not a complete statement because the jury did not hear the
word ‘warrant’ in its entirety. Therefore, any allegations of resulting prejudice would be
speculative because it is uncerta in whether the jury understood the context of the
incomplete statement or even wha t an extraditable warrant is. For these reasons, we
conclude that factor five weighs slightly in favor of the state.
Based on the analysis of the Wren factors and the record in its entirety, we conclude
that any alleged error is harmless beyond a reasonable doubt. Because the higher harmless-
error standard is met, we need not undertake the analysis of th e lesser harmless-error
standard.
Affirmed.