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This opinion will be unpublished and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
A18-0992

State of Minnesota,
Respondent,

vs.

Lamar Darcell Coffee,
Appellant.

Filed April 29, 2019
Affirmed
Bjorkman, Judge

Hennepin County District Court
File No. 27-CR-17-10084

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

Michael O. Freeman, Hennepin County Attorney, Kelly O’Neill Moller, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Julie Loftus Nelson, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Florey, Presiding Judge; Connolly, Judge; and
Bjorkman, Judge.

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U N P U B L I S H E D O P I N I O N
BJORKMAN, Judge
Appellant challenges his convictions for making th reats of violence and second -
degree assault, arguing that he is entitled to a new trial based o n prosecutorial misconduct
during closing argument. We affirm.
FACTS
The circumstances underlying appellant Lamar Darcell Coffee ’s convictions flow
from lawful efforts to repossess his wife’s 2001 Honda Accord.1 On March 24, 2017, J.H.
drove a tow truck into the alley behind Coffee’s house. The tow truck bore the name and
telephone number of the towing company. J.H. parked the vehicle so it blocked access to
Coffee’s garage. Prior to his encounter with Coffee, J.H. saw the Honda enter the alley
then immediately turn around and leave.
Coffee’s eight-year-old son, D.B., was playing in the back yard when he saw a truck
pull up through the alley to their garage . J.H. parked the truck, got out, and stood in the
driveway talking on his phone. D.B. went upstairs and woke Coffee, who had worked the
night shift. It was not until later, while he watched the exchange between J.H. and Coffee
from an upstairs window, that D.B. noticed the vehicle was a tow truck.
Coffee testified that he awoke to see “a strange man standing in my driveway area”
about 20 yards from the house. Coffee went out to the porch to confront J.H., asking him
why he was on the property. J.H. responded that he was there to “collect the money” and

1 Just over two months earlier, the same towing company repossessed the same Honda.

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would not leave. Coffee “went back inside and grabbed [his wife’s registered] gun .” He
told the children to stay inside , took a call from his wife and described the unfolding
incident to her, and then called 911 but immediately hung up. Coffee explained that he
retrieved the gun and held it at his side for “intimidation purposes.” When police returned
his 911 call a few minutes later , Coffee told them that there was “a suspicious vehicle
outside.” Coffee denied noticing that the vehicle was a tow truck.
J.H. testified that he h ad been sitting in the tow truck a few minutes when Coffee
came out of the h ouse and told him to “get the f -ck out of here and get off our property.”
J.H. responded that he was there to repossess the Honda. Coffee went back into the house
and returned, this time with a gun at his side. He resumed yelling and cursing, raised and
cocked the gun, and pointed it at J.H. J.H. was not scared because “[y]ou could tell by his
demeanor that he had no intention of using [the gun].” But he called 911. Officers arrived
within minutes and arrested Coffee.
At trial, the following exchange occurred between Coffee and the prosecutor:
Q: You . . . said that your kids were there so you weren’t going
to shoot the guy. That’s what you testified to earlier—
A. Yes.
. . . .
Q: So does that mean you just would have shot him if the kids
weren’t there?
A. If he proceeded onto my property, yes.
Q. Just—just—you just would have shot him, point blank?
A. If he’s not leaving and I don’t know who you are, you on
my property, I keep telling you to leave, eventually I probably
would have. Because I don’t know your intentions.
Q. Before calling the police? Before doing anything else?
Before going inside the house, you jus t would have shot him;
is that—
A. At that—

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Q. —what you said?
A. —time when my kids is in dire need or jeopardy, feel like
they’re in danger, the first thing on my mind is not to call cops.
It was to protect my family.
Q. Well, you just said you’d do it if your kids weren’t there,
that you would have shot him if your kids weren’t there.
A. That’s hypothetical.

On redirect, Coffee explained that he wanted to intimidate J.H. so he would leave.
During closing argument, the prosecutor commented on three aspects of Coffee’s
testimony. Coffee did not object. The jury found Coffee guilty of both charged offenses.
Coffee appeals.
D E C I S I O N
We review unobjected -to prosecutorial misconduct under a modified plain -error
test. State v. Parker, 901 N.W.2d 917, 926 (Minn. 2017). The appellant must show that
the prosecutor erred and that the error was plain. Id. An error is plain if it “contravenes
case law, a rule, or a standard of conduct.” State v. Ramey, 721 N.W.2d 294, 302 (Minn.
2006). If the appellant establishes plain erro r, the burden shifts to the state to show that
the appellant was not prejudiced. Id. “To warrant reversal for a new trial, the prosecutor’s
misconduct—placed into the context of the entire trial—must be so serious and prejudicial
that it impairs a person ’s constitutional right to a fair trial.” State v. Banks, 875 N.W.2d
338, 348 (Minn. App. 2016), review denied (Minn. Sept. 28, 2016).
I. The prosecutor did not commit misconduct in closing argument.
During closing argument, a prosecutor may “present all legitimate arguments on the
evidence and all proper inferences that can be drawn from that evidence.” State v. Munt,
831 N.W.2d 569, 587 (Minn. 2013) (quotation omitted). Prosecutorial misconduct “occurs

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when the [prosecutor] . . . expresses a personal opinion as to a witness’s credibility.” State
v. Patterson, 577 N.W.2d 494, 497 (Minn. 1998) (quotation omitted); see State v. Mayhorn,
720 N.W.2d 776, 791 (Minn. 2006) (finding prosecutorial misconduct when prosecutor
referred to a defense witness named “Lyra” as aptly named). A prosecutor also commits
misconduct by intentionally misstating the evidence. See State v. Bobo, 770 N.W.2d 129,
142 (Minn. 2009) (stating it is prosecutorial misconduct to intentionally misstate the
evidence or make arguments unsupported by the evidence). In evaluating a claim of
prosecutorial misconduct, we consider the prosecutor’s closing argument as a whole,
declining to focus “on particular phrases or remarks that may be taken out of context or
given undue prominence.” State v. Jones, 753 N.W.2d 677, 691 (Minn. 2008) (quotation
omitted).
Coffee challenges three portions of the prosecutor’s closing argument. We address
each in turn.
The prosecutor first stated:
Instead of doing the things that he could have done,
called the tow truck company, call the police, he inserted
himself in the situation, he became the aggressor in the
situation, he got the gun and he walked out and he was there
for—to intimidate [J.H.]. That’s what he said. Heck, he said,
“I would have shot the guy if my kids weren’t there. I would
have shot the guy if my kids weren’t there.” Shot him. For
asking for money. He didn’t do any of those things. The
defendant was not playing defense. He was playing offense.
[J.H.] d idn’t trespass. He aborted his duty to retreat just to
reengage [J.H.], this time with a firearm.

Coffee argues that this statement does not accurately reflect his testimony. We disagree.
Coffee repeatedly testified that he would use a gun to defend hi s property. And he

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acknowledged that J.H. told him he was there “for the money .” Given this testimony, it
was reasonable for the prosecutor to argue that Coffee had no basis to claim self -defense
and that his conduct demonstrated his intent to assault an d terrorize J.H. While the
prosecutor’s statement that Coffee testified that he would have “shot the guy ” for “asking
for money” may mischaracterize the overall tenor of Coffee’s testimony —which
emphasized his belief that he faced a larger threat than a simple request for money—we do
not view this isolated comment as unfair. We are persuaded that the prosecutor’s “recap”
was a fair argument based on Coffee’s testimony.
The prosecutor next questioned Coffee’s wife’s testimony that Coffee does not have
a reputation for being aggressive. In regard to that testimony, the prosecutor said, “She
wasn’t in [the courtroom] when the defendant said on the stand that he would have shot
that guy for asking for money. Is that not being aggressive? Maybe she doesn’t know her
own husband or maybe she’s not telling you what she knows about her own husband.”
Coffee contends this statement mischaracterizes his testimony and improperly suggests his
wife lied during her testimony. We disagree. The prosecutor’s effort to discredit the
testimony of Coffee’s wife was reasonable in light of undisputed evidence that Coffee was
aggressive during his encounter with J.H.
Finally, the prosecutor labeled as “ inconsistent from one another” Coffee’s
testimony that he never saw the tow truck with D.B.’s testimony that he was able to see the
tow truck from an upstairs window. We reject Coffee’s contention that this statement
mischaracterizes the witnesses’ testimony. It did not. And t he prosecutor was under no
obligation to resolv e the inconsistency in favor of Coffee. Rather, the prosecutor was

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entitled to, and did, make all reasonable arguments derived from the evidence. Munt, 831
N.W.2d at 587. The prosecutor did not commit misconduct during closing argument.
II. Coffee was not prejudiced by the prosecutor’s closing argument.
Even if we viewed the prosecutor’s statements as misconduct, Coffee is not entitled
to a new trial. A person commits second-degree assault when he “assault[s] another with
a dangerous weapon.” Minn. Stat. § 609.222, subd. 1 (2016). An “assault” includes “an
act done with intent to cause fear in another of immediate bodily harm or death.” Minn.
Stat. § 609.02, subd. 10(1) (2016). And a person makes threats of violence when he
“threatens, directly or indirectly, to commit any crime of violence with purpose to terrorize
another.” Minn. Stat. § 609.713, subd. 1 (2016). Coffee’s testimony that he brandished
the gun to intimidate J.H. so he would leave the property is direct evidence of his intent to
cause fear. See State v. Horst , 880 N.W.2d 24, 40 (Minn. 2016) (stating that Horst’s
statement “I want him dead” is direct evidence of mens rea). This statement, along with
J.H.’s testimony, are sufficient to convict Coffee of making threats of violence and second-
degree assault.
Moreover, the claimed misconduct comprises only a small part of the prosecutor’s
nearly 20-page closing argument. See State v. Lewis, 547 N.W.2d 360, 364 (Minn. 1996)
(holding that there was no reversible prosecutorial miscond uct when the alleged error
comprised only a small portion of the prosecutor’s argument). Finally, the district court
instructed the jury that “the arguments or other remarks of an attorney are not evidence. If
the attorneys or I have made any statement a bout what the evidence is that differs from
your recollection of the evidence, you should disregard the statement and rely solely on

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your own memory.” See State v. Johnson, 616 N.W.2d 720, 728 (Minn. 2000) (ruling that
attorney argument based on facts not in evidence did not prejudice the defendant because
the jury was instructed that attorneys’ arguments were not evidence). Juries are presumed
to “follow instructions given by the court.” State v. Matthews , 779 N.W.2d 543, 550
(Minn. 2010).
In sum, our careful review of the record reveals no prosecutorial misconduct. The
prosecutor’s closing argument, considered as a whole, reflects legitimate comment on the
evidence and the reasonable inferences the evidence supports. And we conclude that any
claimed misconduct did not prejudice Coffee.
Affirmed.