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This opinion will be unpublished and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
A18-1650

State of Minnesota,
Respondent,

vs.

Jerwulu D. Wright,
Appellant.

Filed August 26, 2019
Affirmed
Jesson, Judge

Dakota County District Court
File No. 19WS-CR-16-13578

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

Jerome M. Porter, Eagan City Pro secutor, Alina Schwartz, Assist ant City Prosecutor,
Campbell Knutson Professional Association, Eagan, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Veronica M. Surges, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Smith, Tracy M., Presiding Judge; Sc hellhas, Judge; and
Jesson, Judge.
U N P U B L I S H E D O P I N I O N
JESSON, Judge
Appellant Jerwulu D. Wright challenges his theft conviction st emming from a
shoplifting incident at the Eagan outlet mall. First, he argue s t h a t t h e t w o w i t n e s s e s

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identifying him lacked credibility . Second, he asserts that th e prosecutor improperly
aligned himself with the jury by u s i n g t h e t e r m “ w e ” n u m e r o u s times in his closing
argument. Because sufficient evid ence supports Wright’s convic tion, and because any
prosecutorial misconduct does not warrant a new trial, we affirm.
FACTS
In November 2016, the loss-prev ention officer for Saks Fifth Av enue, located in
Eagan, noticed a man behaving su spiciously. On a surveillance camera, the officer
observed the man take several pairs of socks and a suit coat, which he concealed under his
own jacket. At this point, the loss-prevention officer contacted the police, who told him to
continue watching the man. The man left the store with the items and the loss-prevention
officer followed him until he was confronted by law enforcement in the parking lot.
After being surrounded by two police cars, the man stopped, quickly took the stolen
pairs of socks out of his jacket, and placed them on the hood o f one of the cars while an
officer was getting out. Once out of the car, the officer told the man he was under arrest.
As the officer approached the man, she noticed he was wearing t he stolen suit coat
underneath his jacket. The man then cooperated while officers handcuffed and removed
his jacket. Eventually, he admitted that he took the items without paying. At that time, the
store’s loss-prevention officer valued the recovered stolen items at $108.
During the parking lot interaction, the police officer found a driver’s license in the
man’s wallet identifying him as appellant Jerwulu D. Wright. Using this information, the
officer pulled up Wright’s information on her computer, where the search showed the same
photo as the one on the driver’s license, along with the same height, weight, and eye color

3
information. When asked by the officer, the man identified himself as Wright and provided
his date of birth, phone number, and address. The officer later took Wright’s photo while
he was sitting in the back of her police car.
At trial, both the loss-prevention officer and the arresting of ficer identified Wright
as the person who stole the items. The jury was also able to compare the photo the officer
took with Wright’s enlarged driver’s license photo. At the end of the jury trial, the parties
presented closing arguments. Wright did not object at any point during the state’s closing
argument.
The jury found Wright guilty of t heft. The district court sentenced Wright to a stay
of imposition with four days in jail, with credit for one day. Wright appeals.
D E C I S I O N
Wright first argues that insufficient evidence supports his con viction because the
witnesses identifying him lacked credibility. Second, he conte nds that the prosecutor
committed misconduct during his closing argument by using “we” statements. We address
each argument in turn.
I. Sufficient evidence supports Wright’s theft conviction.
Wright argues that his convicti on is not supported by sufficien t evidence.
Specifically, Wright contends that the state failed to prove beyond a reasonable doubt that
he was the person who stole the clothing items from Saks Fifth Avenue. Rather, Wright
postulates, the culprit could have been his brother or someone physically similar.
In sufficiency-of-the-evidence challenges, if an element of the offense is supported
by direct evidence, we examine th e record to determine if the e vidence is sufficient to

4
permit jurors to reach their verdi ct “when viewed in a light mo st favorable to the
conviction.” State v. Horst, 880 N.W.2d 24, 40 (Minn. 2016) (quotation omitted). When
examining the record, this court assumes that the jury believed the state’s witnesses and
did not believe contrary evidence. State v. Olhausen, 681 N.W.2d 21, 25 (Minn. 2004). If
the jury, acting with regard for the presumption of innocence and the requirement of proof
beyond a reasonable doubt, could “reasonably conclude that the defendant was guilty of
the charged offense,” this court will not disturb the verdict. Id. at 25-26.
Under Minnesota law, a conviction for theft requires that the s tate prove the
defendant intentionally and wrongfully took the property of another witho ut consent and
with the intent to permanently deprive the owner of possession. Minn. Stat. § 609.52,
subd. 2(a)(1) (2016). Here, our review of the record leads us to conclude the state presented
significant evidence at trial reg arding the identity of the thi ef. First, the store’s
loss-prevention officer identified Wright in court as the same man he observed conceal the
items, leave the store, and get confronted by the police. Like wise, the arresting officer
identified Wright as the same man she arrested that day. This testimony provided direct
evidence based on personal knowledge that, if believed, proved Wright was the man who
stole the items. See Bernhardt v. State, 684 N.W.2d 465, 477 n.11 (Minn. 2004) (defining
direct evidence). Accordingly, sufficient evidence supports the verdict.
Still, Wright argues that the two witnesses were not credible. He first points to the
possibility that the loss-preventio n officer may have been mult itasking when he initially
saw the man on camera. Also, he notes the loss-prevention offi cer testified that he only
s a w t h e m a n f r o m 2 0 o r 2 5 f e e t a w a y . B u t t h e s e c o n c e r n s w e r e brought to the jury’s

5
attention during cross-examination and closing argument. And i t is well established that
weighing evidence and determin ing credibility are proper tasks for the jury.
State v. Dahlin, 695 N.W.2d 588, 596 (Minn. 2005). As such, it was within the jury’s
discretion to conclude that the loss-prevention officer’s testimony was credible.
Next, Wright asserts that the police officer was not credible because she should have
done more to verify Wright’s ide ntity than simply match the ind ividual with the picture
and information on the driver’s license. But the officer testified that she got a “good look”
at the man’s face and was confident in the man’s identity with no reason to dispute it. Here,
again, the jury properly viewed the officer’s testimony as cred ible and reasonably
concluded from the evidence that Wright committed the theft.
Finally, Wright argues that both the witnesses’ in-court identifications are inherently
doubtful both because of a significant lapse in time between th e events and the trial and
because he was the only African-A merican man in the courtroom. A reasonable doubt,
Wright claims, persists in the possibility that Wright’s brothe r or another similar-looking
individual took Wright’s drive r’s license and faked his identit y after getting caught
stealing. But nothing prevented Wright from attempting to pers uade the jury that the
identifications were not credible. Indeed, both the passage of time and the possibility that
a similar-looking man could have stolen Wr ight’s identity were brought to the jury’s
attention. It nonetheless deemed the witnesses’ identifications credible. And after having
the opportunity to evaluate the credibility of both witnesses, the jury found that the state
proved beyond a reasonable doub t that Wright was the individual w h o s t o l e t h e i t e m s .
Because the evidence here allowed the jury to reasonably conclu de that Wright and the

6
man arrested were the same individual, we do not disturb the ve rdict. See Olhausen,
681 N.W.2d at 25-26. Accordingly, the evidence is sufficient t o sustain Wright’s theft
conviction.
II. The prosecutor’s alleged misconduct during closing argument does not amount
to prejudicial error.
Wright argues that he was denied a fair trial because the prose cutor committed
misconduct during his closing ar gument. Specifically, he conte nds that the prosecutor’s
use of the word “we” during closing argument improperly aligned the prosecution and the
jury. Wright did not object to these statements at trial.
A prosecutor is a “minister of justice” with an obligation “to guard the rights of the
accused as well as to enforce the rights of the public. State v. Mayhorn, 720 N.W.2d 776,
790 (Minn. 2006) (quotations omitted). Serving in this role, a prosecutor commits
misconduct if he violates established standards of conduct, inc luding caselaw, rules, or
orders by a district court. State v. Fields, 730 N.W.2d 777, 782 (Minn. 2007). When the
defendant fails to object during trial, allegations of prosecutorial misconduct are reviewed
under a modified plain-error standard. State v. Ramey, 721 N.W.2d 294, 302 (Minn. 2006).
Under this standard of review, the appellant must establish (1) error and (2) that the error
was plain. Id. Plain error is one that was clear or obvious. Id. If misconduct reaches the
level of plain error, the burden shifts to the state to demonstrate that the misconduct did not
affect the defendant’s substantial rights. Id. If all three elements of the test are met, “[this
court] may correct the error on ly if it seriously affect[s] the fairness, integrity, or public

7
reputation of judicial proceedings.” State v. Peltier, 874 N.W.2d 792, 804 (Minn. 2016)
(quotations omitted).
Prosecutors are not members of the jury, and they have separate roles in a criminal
trial. The supreme court has recognized the roles of the prose cutor and the jury must
remain distinct and stated that u sing phrases like “we” and “us ” may be an inappropriate
effort to appeal to the jury’s passions. Nunn v. State, 753 N.W.2d 657, 663 (Minn. 2008)
(quoting Mayhorn, 720 N.W.2d at 790). But while these types of “we” statements may be
disfavored generally, they are not prosecutorial misconduct per se. Id. The supreme court
has explained that speaking in terms of “we” may not necessarily exclude the defendant or
improperly align the prosecution with the jury if the “we” stat ement could reasonably be
interpreted “to refer to everybody who was in court when the evidence was presented.” Id.
Accordingly, the use of “we” statements to simply summarize facts presented to everyone
is not misconduct. Id.
Here, the prosecutor used “we” about 40 times during his closing argument. Almost
all of the “we” statements merely summarized facts that were presented to everyone, as in
Nunn. In that case, the prosecutor recounted several facts that “[w]e learned.” Id. at 662.
The bulk of the prosecutor’s state ments here—along the lines of “[w]e’ve heard
questioning,” “[w]e had a driver’s license,” or “[w]e have evidence”—are similar to Nunn
and therefore not misconduct. But one statement here is more t roubling. The statement
“we know that the person in the back of the squad car is Mr. Wright” cannot be reasonably
interpreted to refer to everyone in the courtroom. With that statement, the prosecutor was
not merely summarizing facts that were presented to everyone, but advancing a one-sided

8
view of the main contested issue in this case: the identity of the man who stole items from
Saks Fifth Avenue.
The problematic statement here is more similar to one that the supreme court in
Mayhorn concluded was misconduct. There, the prosecutor said, “[t]his is kind of foreign
for all of us, I believe, because we’re not really accustomed t o this drug world and drug
dealing.” Mayhorn, 720 N.W.2d at 789. While it may be permissible to describe a “drug
world” or another piece of evidence the jury might need help un derstanding, the supreme
court said it does not follow that the prosecutor may describe “herself and the jury as a
group of which the defendant is not a part.” Id. at 790. Here, the prosecutor similarly went
beyond merely describing a piece of evidence and instead excluded the defendant with his
“we” statement.
Assuming without deciding that the prosecutor’s statement amounted to plain error,
we conclude that Wright’s substantial rights were not affected. When misconduct amounts
to plain error, the burden shifts to the state to demonstrate that the misconduct did not affect
the defendant’s substantial rights. Ramey, 721 N.W.2d at 302. The state must show that
there is “no reasonable likelihood that the absence of miscondu ct in question would have
had a significant effect on the verdict of the jury.” Id. (quotation omitted). To evaluate the
effect on substantial rights, we examine factors including the pervasiveness of the
misconduct and the strength of evi dence against the defendant. State v. Parker ,
901 N.W.2d 917, 926 (Minn. 2017).
When considering the pervasive ness of the alleged misconduct, t he problematic
“we” statement here is more like an isolated remark rather than a pervasive, underlying

9
strategy. The closing argument consists of 18 pages out of a 264-page transcript. Although
the prosecutor used the term “we” around 40 times during closin g, only one instance is
troubling. As such, the alleged misconduct was not pervasive.
In weighing the next factor—the strength of the evidence—it is clear that
overwhelming evidence supports the case against Wright. Two ey ewitnesses identified
Wright as the same individual who shoplifted from the store. S everal photographs of the
man in question were entered into evidence, as well as a police car video showing him
confessing. Simply stated, there is ample evidence to support the verdict. The strength of
evidence here, as well as the isolation of the problematic remark, lead us to conclude that
Wright’s substantial rights were not violated.
In sum, sufficient direct evidence in the form of eyewitness testimony supported the
conviction in this case. And bec ause the alleged misconduct by the prosecutor was not
pervasive and pales against sign ificant evidence presented rega rding Wright’s identity,
Wright’s substantial rights were not affected.
Affirmed.