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This opinion will be unpublished and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
A18-0777

State of Minnesota,
Respondent,

vs.

Kaylen Demond Nelson,
Appellant.

Filed June 17, 2019
Affirmed
Smith, Tracy M., Judge

Anoka County District Court
File No. 02-CR-16-4007

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

Anthony C. Palumbo, Anoka County Attorney, Kelsey R. Kelley, As sistant County
Attorney, Anoka, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appe llate Public Defender, Anders J. Erickson, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Smith , Tracy M., Presiding Judge; La rkin, Judge; and
Smith, John, Judge.


 Retired judge of the Minnesota Court of Appeals, serving by app ointment pursuant to
Minn. Const. art. VI, § 10.

2
U N P U B L I S H E D O P I N I O N
SMITH, TRACY M., Judge
Appellant Kaylen Nelson was living with M.S.B. and her daughter , K.M.B., when
injuries suggesting that K.M.B. was being abused were discovere d. Nelson was charged
with and convicted of third-degree assault and neglect of a chi ld. A jury found him guilty
under both direct- and accomplice-liability theories for each c rime. In this direct appeal,
Nelson argues that he was denied a speedy trial, that the evide nce was insufficient to
establish beyond a reasonable do ubt that he committed third-deg ree assault under either
theory of liability, and that the prosecutor committed reversib le misconduct by
misrepresenting the law to the jury. We affirm.
FACTS
This case concerns the abuse of a 22-month-old child, K.M.B., b etween February
and late April 2016. In January 2016, Nelson met and began living with M.S.B., the mother
of K.M.B. Not long afterward, Nel son began watching K.M.B. whil e M.S.B. was out of
the house. This arrangement lasted until mid-April, when M.S.B.’s sister, K.S.B., and her
sister’s boyfriend, T.E., visited the apartment and discovered signs that K.M.B. was being
abused. Specifically, K.S.B. noticed bruising on K.M.B.’s neck and face, an injury to the
inside of her ear, scratches and bruising on her torso, as well as an unspecified injury to the
child’s vaginal area. T.E. saw scratches and bruising on the ch ild’s neck, bruising on her
legs, and a fresh bruise on her ar m. After K.S.B. and T.E. info rmed relatives about what
they saw, K.M.B. was taken to the hospital, where the injuries were reported to police and
child protection.

3
At the hospital, it was discovered that K.M.B. also had two fractures in her forearm
that were healing but untreated; the breaks were estimated to b e three to four weeks old.
Blood analysis revealed an elevated level of creatine phosphoki nase, an enzyme that is
released from skeletal muscle when it is injured. Medical examination revealed numerous
bruises and scars that, in the doctor’s opinion, were consisten t with physical abuse
occurring on multiple occasions.
Just before K.M.B. was taken to the hospital, Nelson left the a partment and,
apparently, the state. In June 2016, Nelson was charged with first- and third-degree assault.
He was arrested in January 2017.
Though initially scheduled for February, Nelson’s omnibus hearing was continued
twice—once so that he could consider a plea offer, and once so that his new attorney could
familiarize himself with the evidence provided in discovery up to that point. On May 4,
Nelson waived the omnibus heari ng and demanded a speedy trial. A pretrial hearing was
set for May 16, and trial was set for June 12.
On May 22, the state amended the complaint. The amended complaint removed the
previous paragraphs charging first- and third-degree assault and added paragraphs charging
Nelson with aiding and abetting first- and third-degree assault as well as aiding and abetting
neglect of a child. Nelson responded by waiving his speedy-tria l demand in order to
challenge probable cause for the amended complaint. A contested omnibus hearing was
scheduled for June 27.
At the June 27 hearing, the state indicated that it intended to also charge those three
crimes under direct-liability the ories. Additionally, the court noted that the speedy-trial

4
demand had been withdrawn but said that a trial date and briefing schedule could be set if
that was what Nelson wanted. Nelson’s attorney responded by rai sing a discovery issue.
The contested omnibus hearing was rescheduled to July 10 to acc ommodate the
amendment to the complaint.
The second amended complaint ch arging six counts was filed on J uly 10. At the
omnibus hearing on that same date, the parties agreed to argue Nelson’s motion to dismiss
based on lack of probable cause by simultaneously submitted briefs. In the event the motion
was denied, a pretrial hearing was scheduled for September 26 and trial was scheduled for
October 23. Nelson indicated at the July 10 hearing that, if hi s motion to dismiss was
denied, he intended to reassert his demand for a speedy trial.
The parties submitted briefs, and, on September 25, the distric t court denied
Nelson’s motion to dismiss for lack of probable cause. A pretri al hearing was held as
scheduled, at which Nelson reasse rted his speedy-trial demand. However, trial was
postponed until October 25 because the scheduled judge was unavailable. On October 25,
trial was again rescheduled, this time to December 11, because there were not enough
jurors available. Though Nelson objected to the second reschedu ling on the basis of his
speedy-trial demand, the court noted that the delay would be br ief—only 16 days beyond
the 60-day deadline, counting from September 25—and ruled that there was good cause to
delay, because the trial could not start without jurors. The trial began on December 11.
At trial, the state introduced evidence that no one had noticed injuries on K.M.B.
before Nelson moved in, that K.M.B.’s injuries occurred over a period of at least three to
four weeks, and that Nelson was taking care of K.M.B. on a dail y basis while living with

5
M.S.B., as well as testimony from M.S.B. that she witnessed Nelson “whooping [K.M.B.]
with a belt.” The state also int roduced evidence that M.S.B. ha d pleaded guilty to child
neglect for her role in the abuse of K.M.B. In its closing argu ment, the state argued that
Nelson should be found guilty if the jury believed that he had personally assaulted K.M.B.
and also should be found guilty if the jury believed that M.S.B . had assaulted K.M.B. but
Nelson had aided and abetted her by failing to intervene over the course of the abuse. The
jury found Nelson guilty of thir d-degree assault, neglect of a child, aiding and abetting
third-degree assault, and aiding and abetting neglect of a chil d. Nelson was acquitted of
first-degree assault and of aiding and abetting first-degree assault.
Nelson appeals.
D E C I S I O N
I. Nelson’s right to a speed y trial was not violated.

Nelson first argues that the district court erred in ruling that the state had not violated
his right to a speedy trial.
“Whether a defendant has been denied a speedy trial is a consti tutional question
subject to de novo review.” State v. Osorio , 891 N.W.2d 620, 627 (Minn. 2017). To
determine whether the right to a speedy trial has been denied, Minnesota courts use a four-
factor balancing test. See id. (citing Barker v. Wingo, 407 U.S. 514, 530-33, 92 S. Ct. 2182,
2192-93 (1972)). These factors are: “(1) the length of the delay; (2) the reason for the delay;
(3) whether the defendant asserted his or her right to a speedy trial; and (4) whether the
delay prejudiced the defendant.” State v. Windish, 590 N.W.2d 311, 315 (Minn. 1999). No
single factor is “a necessary or sufficient condition to the fi nding of a deprivation of the

6
right to a speedy trial.” Id. (quotation omitted). Rather, all of the factors must be considered.
Id.
A. Length of delay

The first factor is the length of the delay. The length of dela y functions as both a
factor and a triggering mechanism—there must be some “presumptively prejudicial” delay
before consideration of the rem aining factors is necessary. Barker, 407 U.S. at 530, 92
S. Ct. at 2192. The right to a speedy trial attaches either whe n a defendant is formally
charged or when a defendant is arrested. Osorio, 891 N.W.2d at 627. Delay is usually
calculated from the point of attachment; a six-month delay is presumptively prejudicial. Id.
at 628. However, if a defendant demands a speedy trial pursuant to Minn. R. Crim. P. 11.09,
a delay of more than 60 days from that demand is presumed preju dicial. Windish, 590
N.W.2d at 315-16.
Nelson made a speedy-trial demand on May 4, but he withdrew that demand in June.
Nelson re-asserted his right to a speedy trial on September 26, 76 days before his trial began
on December 11. There is no disput e that Nelson was not brought to trial within 60 days
of his speedy-trial demand and that there was a “presumptively prejudicial” delay,
requiring consideration of the remaining factors. See id. But the delay was also only 16
days longer than what is permitted by statute, so this factor barely weighs in Nelson’s favor.
B. Reasons for delay

The second factor is the reason for delay; its purpose is to determine who caused the
delay and to weigh the responsib le party’s culpability in bring ing about the delay. See
Osorio, 891 N.W.2d at 628-29. Thus, if a delay is due to a defendant’s actions, “there is no

7
speedy trial violation.” Id. (quoting State v. Taylor, 869 N.W.2d 1, 20 (Minn. 2015)). But
when the delay is due to the government, the reason for the delay becomes more important.
The Supreme Court in Barker described three tiers of culpability: deliberate delay intended
to impede the defense is “weighted heavily against the governme nt”; “negligence or
overcrowded courts” weigh against the government, but not as strongly; and a good reason,
“such as a missing witness,” will justify a commensurate delay. 407 U.S. at 531, 92 S. Ct.
at 2192.
Nelson contends that the delay should be measured from one of t hree dates—
January 23, the date of his arrest; May 4, the date of his firs t speedy-trial demand; or
September 26, the date of his final speedy-trial demand.
If the delay is counted from either of the first two dates, bla me for the majority of
the delay falls on Nelson. Eleve n months passed between Nelson’ s arrest and his trial.
Much of this delay was at Nelson’s request. His omnibus hearing was scheduled to take
place on February 23, only a month after his arrest, but was continued at his request so that
he could consider a plea offer; it was continued again so that his new attorney could review
the evidence. Thus, the five-month delay between Nelson’s arres t and his speedy-trial
demand on May 4 is of his own doing, and that delay does not su pport a speedy-trial
violation. See Osorio, 891 N.W.2d at 628-29.
The delay between May 4 and September 26 is also Nelson’s responsibility. Nelson
argues that, if the state had not amended the complaint, he would have gone to trial in June,
as originally scheduled. According to Nelson’s argument, his decision to waive his speedy-
trial demand was caused by the state’s amendment of the complai n t , s o t h e s t a t e i s

8
responsible for any delay arisi ng from his waiver. That argumen t fails. Nelson does not
explain why the state’s amendment of the complaint—a legal and fairly common decision,
even if it changes th e offenses charged, see State v. Bluhm , 460 N.W.2d 22, 24 (Minn.
1990) (“[T]he [district] court is relatively free to permit amendments to charge additional
offenses before trial is commenced . . . .”), and particularly when the amendment only adds
an aiding-and-abetting theory, which is not a separate substant ive offense, State v.
DeVerney, 592 N.W.2d 837, 846 (Minn. 1999) —forced him to waive his spee dy-trial
demand. And he cites no caselaw supporting his position that the decision to amend shifts
responsibility for his decision to delay onto the state. Finall y, Nelson did, after the state’s
second amendment of the complaint, challenge probable cause for all of the counts against
him, including the two that had been charged when he demanded a speedy trial. Thus, he
appears to have gotten the benefit of waiving his speedy-trial demand in order to challenge
probable cause. We see no reason to hold that a defendant, having demanded a speedy trial,
is entitled to delay his trial in order to challenge probable cause and then have the charges
dismissed because of a speedy-trial violation if that challenge fails. Because the delay
between May 4 and September 26 was due to Nelson’s own decision, it does not support a
speedy-trial violation.
The final delay is from Nelson’s last speedy-trial demand, on S eptember 26, until
his trial began on December 11. Nelson’s trial was originally s cheduled for late October.
But on the morning of trial, not enough jurors were available to provide an adequate venire

9
from which to select the jury. Ne lson’s trial was therefore continued until December 11.1
Nelson notes that court congesti on is not good cause for delay “unless exceptional
circumstances exist.” State v. Griffin , 760 N.W.2d 336, 340 (Minn. App. 2009).
Summoning too few jurors may be somewhat closer to “exceptional” than is ordinary court
congestion. But even if it is merely a result of congestion, nothing suggests that the lack of
jurors resulted from anything other than inadvertency or neglig ence. Thus, the delay was
not intentional and weighs only lightly against the state. State v. Friberg, 435 N.W.2d 509,
514 (Minn. 1989) (“[T]he delay was caused by calendar congestio n . . . [;] a scheduling
delay over which the prosecutor had no control should not weigh heavily against the state
. . . .”).
C. Assertion of the right

The third factor is whether and when the defendant asserted his right to a speedy
trial. While a defendant is not required to “bring himself to t rial,” Osorio, 891 N.W.2d at
629 (quoting Barker, 407 U.S. at 527, 92 S. Ct. at 2190), he does have some responsibility
to assert the right; the promptness and vigor with which a defendant demands a speedy trial
carries “strong evidentiary weigh t” when courts evaluate this f actor, Barker, 407 U.S. at
531-32, 92 S. Ct. at 2192-93. We consider “[t]he circumstances surrounding the frequency

1 When explaining this decision, t he district court also stated that the delay would ensure
that defense counsel “has the opportunity to fully explore the medical records of the witness
and see whether that is helpful in the defense of your case.” Nelson strongly objects to that
reason, noting that his counsel had not asked for more time to look at medical records. But
the fact that the district court provided a bad reason for dela y along with a more neutral
one does not make the better reason invalid.

10
and intensity of a defendant’s assertion of a speedy trial demand—including the import of
defense decisions to seek delays.” Windish, 590 N.W.2d at 318.
Nelson argues that he strongly asserted his right to a speedy trial, starting on May 4,
and again on July 10, September 26, October 10, October 25, and December 11. But simply
listing the dates of his demands does not adequately illustrate t h e c i r c u m s t a n c e s
surrounding those demands. Nelson did not demand a speedy trial until May 4, over four
months after his January arrest. And, after asserting his right to a speedy trial in May, he
then waived it. When Nelson expressed an intent to demand a spe edy trial in July, the
assertion was contingent on the outcome of his motion to dismiss, so he truly reasserted his
demand only after his probable-cause challenge was denied in September. The fact that he
then asserted his demand several times during the next 60 days does not change the fact
that he did not consistently seek a speedy trial and caused delays much longer than the 16
days that he now asserts violated his right to a speedy trial. This factor weighs against
Nelson.
D. Prejudice

The final factor in the Barker test is prejudice, which must be analyzed in light of
three interests: first, preven ting “oppressive pretrial incarce ration,” second, minimizing
“anxiety and concern of the accus ed,” and third, preventing the defense from being
impaired. 407 U.S. at 532, 92 S. Ct. at 2193. The third interest is the most important of the
three. Id.; Osorio, 891 N.W.2d at 631.
Nelson argues that all three interests were prejudiced by the delay in trying his case.

11
1. Oppressive pretrial incarceration

Nelson first asserts he suffered “oppressive pretrial incarcera tion” because he was
jailed for ten months. The only fact Nelson relies on to assert that his pretrial incarceration
was oppressive is its length. H e cites no caselaw supporting th e claim that ten months’
pretrial incarceration is oppressive. But, while no reported Mi nnesota case provides a
definition of “oppressive” in this context, if delay is due to a defendant’s own decisions,
that fact weighs against concludi ng that incarceration was oppr essive. State v. Johnson ,
498 N.W.2d 10, 16 (Minn. 1993). Nelson is primarily responsible for the length of the
pretrial proceedings, and he identifies no fact other than leng th to argue that his
incarceration was oppressive. While we acknowledge that the len gth of the pretrial
incarceration was unfortunate, it was not oppressive here.
2. Anxiety and concern

Nelson next argues that he suffered the sort of anxiety and concern that the right to
a speedy trial is intended to protect against. When analyzing w hether delay causes
prejudice to a defendant’s interest in avoiding undue anxiety a nd concern, the question is
whether a defendant suffers anxiet y t h a t “ i s g r e a t e r t h a n t h e anxiety of any other
defendant.” State v. Hahn, 799 N.W.2d 25, 33 (Minn. App. 2011), review denied (Minn.
Aug. 24, 2011). Nelson argues that he was prejudicially anxious, pointing to his statement
to the district court on May 4, when he first made his speedy-trial demand: “I’m just really
curious why I’m in custody. There’s no evidence against me. I’v e been sitting over 100
days with no evidence, nothing at all. I’m innocent. This is driving me crazy. That’s all. . . .
I just need to get it off my b ack. . . . It is very frustrating .” But the anxiety caused by a

12
belief in one’s innocence and a belief that the charges are not supported by evidence is
likely no greater than that suffered by any other defendant who chooses to go to trial. And
the fact that Nelson had been in jail for some time was, at tha t point, entirely due to his
own requests for continuances. Ne lson has not demonstrated that he suffered the sort of
anxiety or concern that the right to a speedy trial is intended to protect against.
3. Prejudice to the defense

The final, and most significant, factor is whether the delay im paired the defense.
“[C]onsideration of prejudice i s not limited to the specificall y demonstrable, and . . .
affirmative proof of particularized prejudice is not essential to every speedy trial claim.”
Doggett v. United States, 505 U.S. 647, 655, 112 S. Ct. 2686, 2692 (1992). A presumption
of prejudice, which does not require any specific showing of harm to a defense, may result
from “excessive delay.” State v. Strobel, 921 N.W.2d 563, 571 (Minn. App. 2018) (quoting
Doggett, 505 U.S. at 655, 112 S. Ct. at 2693), review granted (Minn. Jan. 29, 2019).
Nelson’s sole argument that his defense has been prejudiced is his contention that
the delay was excessive such that prejudice to his defense shou ld be presumed. But while
exceeding the 60-day period may be described as “presumptively prejudicial” for the
purposes of triggering analysis of the remaining factors, a del ay must be longer—
“excessive”—before we presume that the delay impaired the defen se. Id. (“Presumptive
prejudice [to a defense] . . . results only from ‘excessive delay.’” (emphasis added)). A
delay of just 16 days beyond th e 60-day presumptive period is n ot “excessive.” See State
v. Jefferson, No. A18-0122, 2019 WL 908269, at *4-5 (Minn. App. Feb. 25, 2019) (holding
that a delay of 59 days beyond the 60-day period was not excessive), review denied (Minn.

13
May 14, 2019); State v. Davis , No. A13-0267, 2014 WL 502849, at *2 (Minn. App.
Feb. 10, 2014) (holding that a delay of 22 days beyond the 60-d ay period was not
excessive).2
Nelson has neither asserted that he suffered an identifiable prejudice to his defense
nor has he shown that we should p resume his defense was prejudi ced merely because of
the delay.
Thus, while the first and second factors weigh lightly in Nelso n’s favor, the third
and fourth weigh against him. Nelson’s right to a speedy trial was not violated.
II. The evidence was sufficien t to prove third-degree assault.

Nelson next argues that there was insufficient evidence to prove that he committed
third-degree assault or that he aided and abetted third-degree assault. When reviewing a
challenge to the sufficiency of the evidence, appellate courts view the evidence “in the light
most favorable to the conviction” and give deference to the jury’s opportunity to weigh the
credibility of the evidence. State v. Robinson , 921 N.W.2d 755, 761 (Minn. 2019). If,
“giving due regard to the presumption of innocence and the state’s burden of proof beyond
a reasonable doubt, [the jury] c ould reasonably have found the defendant guilty,” a
reviewing court will affirm. State v. Al-Naseer , 788 N.W.2d 469, 473 (Minn. 2010)
(alteration in original) (quoting State v. Pierson, 530 N.W.2d 784, 787 (Minn. 1995)).

2 We acknowledge that these cases are not precedential. Minn. Stat. § 480A.08, subd. 3(c).
While we are not bound by them, we nonetheless find them persua sive in this case, as
illustrative of the principle tha t delay beyond 60 days is not necessarily “excessive.” See
Donnelly Bros. Constr. Co. v. St ate Auto Prop. & Cas. Ins. Co. , 759 N.W.2d 651, 659
(Minn. App. 2009) (“[U]npublished opinions may be persuasive.”), review denied (Minn.
Apr. 21, 2009).

14
Direct and circumstantial evidence are different means of proving the elements of a
crime and are subject to different standards of review. State v. Harris, 895 N.W.2d 592,
598, 600-01 (Minn. 2017) (reaffi rming the circumstantial-eviden ce standard). Direct
evidence is “[e]vidence that is based on personal knowledge or observation and that, if true,
proves a fact without inference or presumption.” Id. at 599 (alteration in original) (quoting
State v. Clark, 739 N.W.2d 412, 421 n.4 (Mi nn. 2007)). When reviewing the suf ficiency
of direct evidence to support a conviction, we “assume that the factfinder believed the
state’s witnesses and disbelieved any evidence to the contrary.” State v. Brazil, 906 N.W.2d
274, 279 (Minn. App. 2017) (quotation omitted), review denied (Minn. Mar. 20, 2018).
Then, viewing that evidence in the light most favorable to the verdict, appellate courts ask
whether the evidence “was suffici ent to permit the jurors to re ach the verdict which they
did.” State v. Horst , 880 N.W.2d 24, 40 (Minn. 2016 ) (quotation omitted). Under thi s
standard, if the state introduces direct evidence of an element of the offense, we assume
that the jury credited that evidence and therefore treat the element as proved.
In contrast to direct evidence, circumstantial evidence always requires an inference
to prove the relevant fact. Harris, 895 N.W.2d at 599. When reviewing the sufficiency of
circumstantial evidence, appellate courts first “identify the c ircumstances proved.” Id. at
601 (quotation omitted). The circ umstances proved are “those ci rcumstances that are
consistent with the verdict.” State v. Silvernail, 831 N.W.2d 594, 599 (Minn. 2013). Then,
a reviewing court considers whether, viewed as a whole, the cir cumstances proved allow
for a reasonable inference of guilt and are “inconsistent with any rational hypothesis except
that of guilt.” Harris, 895 N.W.2d at 601.

15
Aiding and abetting a crime is not a separate substantive offen se from the crime
itself. See DeVerney , 592 N.W.2d at 846. Because the two charges are no more than
separate theories for how Nelson committed a single crime, if the evidence is sufficient to
support either theory, his conviction for third-degree assault will be affirmed. But because
the evidence supports the jury’s verdict on the state’s theory of principal liability—the
theory on which the district court actually convicted Nelson—we need not consider
whether there was sufficient evid ence to support the jury’s ver dict on the aiding-and-
abetting count. See State v. Ashland , 287 N.W.2d 649, 650 (Minn. 1979) (holding that,
when the evidence supports the t heory on which a defendant was convicted, alternative
theories of guilt need not be addressed).
Nelson argues that the state failed to prove that he committed third-degree assault
because the only direct evidence that he personally injured K.M.B. was the uncorroborated
testimony of an accomplice—namely, M.S.B.
Minnesota law prohibits convicti ons on the uncorroborated testi mony of an
accomplice. Minn. Stat. § 634.04 (2018) (“A conviction cannot be had upon the testimony
of an accomplice, unless it is corroborated . . . .”). There are two main requirements for the
corroboration under the statute. First, the corroborating evide nce must “tend[] to convict
the defendant of the commission of the offense.” Id. Second, the corroboration must do
more than show that the offense was committed or the circumstan ces under which the
offense was committed. Id. Corroborating evidence “must link or connect the defendant to
the crime” and “must point to th e defendant’s guilt in some sub stantial degree.” State v.
Scruggs, 421 N.W.2d 707, 713 (Minn. 1988) (quotation omitted). But the corroborating

16
evidence need not “establish a pr ima facie case of the defendan t’s guilt.” Id. (quotation
omitted). All it is required to do is to “restore confidence in the accomplice’s testimony”
in a way that suggests the defendant’s guilt. State v. Hooper, 620 N.W.2d 31, 39 (Minn.
2000). Thus, corroborating eviden ce may take the form of “evide nce of the accused’s
relationship with the accomplice,” evidence of “opportunity and motive,” and evidence of
a defendant’s “proximity to the place where the crime was commi tted.” State v. Nelson ,
632 N.W.2d 193, 202 (Minn. 2001) (quotation omitted).
Nelson argues that the state fa iled to prove beyond a reasonabl e doubt that he,
personally, assaulted K.M.B., as it was required to do in order to prove guilt under its theory
of direct liability. See Minn. Stat. § 609.223, subd. 3 (2014) (creating criminal penalties for
a person who assaults a victim under the age of four, causing a certain degree of harm).
M.S.B. testified that she saw Nelson hitting K.M.B. with a belt, providing direct evidence
that Nelson personally assaulted K.M.B. But M.S.B. was an accomplice to Nelson’s crime.
She had previously pleaded guilty to child neglect based on her complicity in the assaults
on K.M.B. Thus, for M.S.B.’s testimony to be a basis on which t he jury could convict
Nelson of third-degree assault under a direct-liability theory, the state was required to
corroborate M.S.B.’s testimony. See Minn. Stat. § 634.04.
Nelson argues that the state fa iled to corroborate M.S.B.’s tes timony that she had
seen him hit K.M.B. because the circumstantial evidence did not rule out the inference that
M.S.B. was the one who actually committed the assault and that he was not involved. In
doing so, Nelson wrongly combines two distinct concepts. Corroboration makes M.S.B.’s
direct evidence of Nelson’s guilt competent. See Minn. Stat. § 634.04. Circumstantial

17
evidence would be a separate basis for finding guilt, even in the absence of direct evidence.
If the circumstantial evidence that Nelson personally assaulted K.M.B. is sufficient to rule
out any rational hypothesis other than guilt, that evidence would be sufficient to sustain a
guilty verdict. Al-Naseer, 788 N.W.2d at 473. In that case, the direct evidence of Nelson’s
guilt—M.S.B.’s testimony—would be unnecessary to support the ve rdict. But
corroborative evidence need not m ake a prima facie case of the defendant’s guilt, much
less provide an independent basis for conviction; rather, it ne ed only “point[] to the
defendant’s guilt in some substantial way.” Hooper, 620 N.W.2d at 39 (quotation omitted);
Scruggs, 421 N.W.2d at 713. We reject Nelson’s attempt to raise the ba r for accomplice
corroboration by applying the circ umstantial-evidence standard for reviewing the
sufficiency of evidence to support a conviction.
Applying the proper standard, adequate evidence corroborates M.S.B.’s testimony.
Nelson admits that he stayed at M.S.B.’s residence and watched K.M.B., often alone,
during the time that K.M.B. was injured; and that, after the injuries were reported, he fled,
suggesting consciousness of guilt. See State v. McDaniel , 777 N.W.2d 739, 747 (Minn.
2010) (holding that flight sug gests consciousness of guilt and that evidence of other
motivations for flight goes to the weight, not the admissibility, of the evidence of the flight).
These facts implicitly link Nelson to the crime and point to his guilt. They provide evidence
of Nelson’s relationship with M.S.B., show that he had “opportu nity and motive,” and
establish his “proximity to th e place where the crime was commi tted.” See Nelson, 632
N.W.2d at 202 (quotation omitted). And M.S.B. testified to those same facts. Because those

18
facts are suggestive of guilt and align with M.S.B.’s trial tes timony, they are sufficiently
corroborative of M.S.B.’s testimony. See Scruggs, 421 N.W.2d at 713.
Because M.S.B.’s testimony that she saw Nelson assaulting K.M.B. was adequately
corroborated, there was direct evidence of Nelson’s guilt. Because that direct evidence was
sufficient for the jury to find that Nelson committed third-deg ree assault, we need not
consider whether any circumstantial evidence would also have been sufficient. See State v.
Salyers, 858 N.W.2d 156, 161 (Minn. 2015 ) (holding that the circumstan tial-evidence
standard of review need not be applied when direct evidence est ablishes the challenged
element).
III. The prosecutor’s purported misstatement of the law during closing arguments
does not require reversal.

Finally, Nelson argues that this court must reverse his convict ion for third-degree
assault because the prosecutor committed misconduct by telling the jury that it could find
him guilty of the aiding-and-abe tting crimes based on his failu re to stop M.S.B. from
assaulting K.M.B.
A. Standard of review

As an initial matter, the parties disagree about what standard of review applies.
Nelson, citing State v. Nissalke , 801 N.W.2d 82, 105-06 (Minn. 2011), argues that this
court should apply the Caron standard of harmless-error review, because defense counsel
objected to the prosecutor’s arguments. See State v. Caron, 218 N.W.2d 197, 200 (Minn.
1974) (creating a harmless-error standard of review for objecte d-to prosecutorial
misconduct in which one level of scrutiny is applied to less serious misconduct and another

19
level is applied to more serious misconduct). But the state argues that defense counsel did
not object during the closing argument; the objection was raised only after the state had
finished both its main closing argument and its rebuttal argument, as a basis for requesting
surrebuttal. The state therefore argues that the plain-error standard applies.
The state relies most heavily on State v. Ramey , 721 N.W.2d 294, 298-99 (Minn.
2006), for the proposition that a timely objection is required to preserve an assertion of
error. But Ramey does not expressly define “timely,” and its facts are dissimil ar because
“Ramey did not object at trial.” Ramey, 721 N.W.2d at 297. The state does not cite any
other case showing that an objection made at the end of a closing argument is untimely or
does not occur “at trial.” Further, Ramey’s explanation of why a timely objection is
required indicates that this obj ection was sufficiently timely. According to Ramey, the
threat of plain-error review being applied to assertions of err or that were not timely
objected to “encourages defendants to object at trial.” Id. at 298. Objections at trial are
valuable because lack of “a contemporaneous objection” deprives the district court of “the
opportunity to rule on the misconduct or make a determination a s to whether a corrective
instruction is required or appropriate.” Id. at 298-99. Here, Nelson’s objection was made
at trial and gave the district court the opportunity to rule on w h e t h e r t h e p r o s e c u t o r ’ s
comments were appropriate. Because the objection was made before final instructions, the
district court could have given a corrective instruction if it decided that one was warranted.
The district court could have “cure[d] the effect of alleged prosecutorial misconduct,” had
it believed there was any. See id. at 299 (quoting Rairdon v. State, 557 N.W.2d 318, 323
n.5 (Minn. 1996)). Nelson’s objection was timely, and harmless-error review applies.

20
The exact form of that harmless-error review is an unsettled qu estion. Ramey casts
doubt on the continued applicability of Caron’s two-tiered standard to harmless-error
review. Id. at 299 n.4 (“We leave for another day the question of whether the Caron two-
tiered approach should continue t o apply to cases involving obj ected-to prosecutorial
misconduct.”). And recent cases have not needed to answer the q uestion because any
misconduct was harmless beyond a reasonable doubt, thus satisfy ing either standard of
harmlessness. State v. Whitson , 876 N.W.2d 297, 304 & n.2 (Minn. 2016); State v.
Carridine, 812 N.W.2d 130, 146 (Minn. 2012). We also need not resolve the question here.
Regardless of the seriousness of the alleged misconduct, the fi rst question is whether the
prosecutor engaged in misconduct at all. See State v. Powers , 654 N.W.2d 667, 678-79
(Minn. 2003) (ending analysis of one claim of misconduct upon d etermining that the
statement did not amount to misconduct). Because he did not, we need not determine
exactly what standard of review would apply to objected-to misconduct.
B. Propriety of the argument

Nelson argues that the prosecu tor committed misconduct by misstating the law on
accomplice liability by arguing that Nelson is guilty of aiding and abetting assault if he
knew of the ongoing abuse and di d nothing to stop it. Nelson ar gues that a person cannot
be guilty of aiding and abetting by “mere presence” and that his living in the residence and
looking after K.M.B. on a daily basis constitutes just such mer e presence. But, under
Morrison, a jury can reasonably infer th e requisite mens rea to aid and abet from the fact
that a person with a duty to care for a child ignored a pattern of abuse. Morrison, 437
N.W.2d at 426-27. The state’s closing argument accurately summa rized that rule.

21
Continuing to look after a child who is being abused without taking any preventative action
allows the inference that one knows of the abuse and is intendi ng to further it. The
prosecutor’s closing argument asked the jury to infer the requi site mens rea from the
ongoing nature of the abuse and the facts surrounding Nelson’s status as a caretaker. Thus,
the prosecutor’s closing argument accurately described the law and was not misconduct.
Affirmed.