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This opinion will be unpublished and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
A19-0397

State of Minnesota,
Respondent,

vs.

Elizabeth Rose Osterbauer,
Appellant.

Filed February 18, 2020
Affirmed
Slieter, Judge

Hennepin County District Court
File No. 27-CR-16-32250

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

Michael O. Freeman, Hennepin County Attorney, Sarah J. Vokes, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Sara L. Martin, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Slieter, Presiding Judge; Larkin, Judge; and Reyes,
Judge.
U N P U B L I S H E D O P I N I O N
SLIETER, Judge
In this direct appeal from final judgment, appellant Elizabeth Rose Osterbauer
argues that her convictions for two counts of burglary must be reversed because the district

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court abused its discretion by denying her motion to sever the two burglary counts for trial.
Osterbauer also argues that the prosecutor committed prosecutorial misconduct in closing
argument by making a personal attack on the defense attorney and by commenting on the
fact that Osterbauer did not call a specific witness. Because the district court’s decision
not to sever the burglary charges was harmless error and the prosecutor ’s statements in
closing argument did not affect Osterbauer’s substantial rights, we affirm.
FACTS
Osterbauer and victim S.B. have been in an on-and-off relationship since 2008.
Both worked with rescue animals and both fostered animals . T heir relationship was
somewhat one-sided, with Osterbauer “constantly profess[ing] her love” for S.B., but S.B.
telling Osterbauer she did not feel the same.
The two had an argument over Osterbauer’s feelings for S.B. on December 9, 2015.
The next day, while S.B. was at work, S.B.’s friend went to S.B.’s house to check on her
dogs. He noticed S.B.’s miniature pinscher, Ducky Mo-Mo, was missing. He texted S.B.,
and S.B. searched for Ducky, but to no avail. Due to their argument the night before, S.B.
suspected Osterbauer, but S.B. did not contact the police.
In June 2016, S.B. moved to North Dakota but kept her Minneapolis home. On June
6, a friend of S.B.’s checked on S.B.’s Minneapolis home; the friend found cat litter and
oil spread throughout the house and a clogged sink and toilet. Several possessions were
also missing, i ncluding dog -food bowls, pet medication, two sweatshirts, and a Rapala
fishing knife. S.B. called the police, but officers did not pursue an investigation at that
time.

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Later in June 2016, Osterbauer filed an order for protection (OFP) against S.B. S.B.
did not object to the OFP because she hoped it would lead to Osterbauer leaving her alone.
S.B. violated the OFP in August 2016 by contacting Osterbauer.
On November 2, 2016, a woman named M.M. messaged S.B. on Facebook. M.M.,
Osterbauer’s friend, told S.B. that she had information about Ducky.
One month after talking to S.B., M.M. went to the police. The police reopened the
investigation into the June burglary, and interviewed M .M. and several others with
knowledge of Osterbauer’s actions.
In December 2016, police executed a search warrant for Osterbauer’s home. Police
found S.B.’s sweatshirts and a fishing knife. The state charged Osterbauer with two counts
of second-degree burglary (dwelling), in violation of Minn. Stat. § 609.582, subd. 2(a)(1)
(2014), based on the December 2015 and June 2016 incidents. The state amended the
complaint to add a count of mistreatment of animals (torture), in violation of Minn. Stat.
§ 343.21, subd. 1 (2014) , and a count of stalking, in violation of Minn. Stat. § 609.749,
subd. 5(a) (2014).
Prior to trial, Osterbauer moved to sever the two burglary offenses. The district
court denied the motion to sever. The case proceeded to trial.
During trial, M.M. testified about the December 2015 burglary and described what
happened to Ducky. M.M. testified that she drove Osterbauer to S.B.’s home, where
Osterbauer stole Ducky. M.M. and Osterbauer then drove to a remote area, and Osterbauer
kept Ducky in a pillowcase while she drowned him in a body of water. M.M. testified that
after drowning Ducky, Osterbauer “was very much on top of the world” and bragged about

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killing Ducky. M .M. also testified that Osterbauer gave her live updates about the June
2016 burglary, explaining that she took several of S.B.’s items, including sweatshirts, and
spread cat litter and oil throughout the house.
Two other witnesses testified about Osterbauer’s actions. A friend of M.M.’s, M.Z.-
E. testified that Osterbauer told him about both burglaries, and that one of Osterbauer’s
brothers, helped with the June 2016 burgla ry. K .V. also testified about the June 2016
burglary stating that Osterbauer told him that she broke into S.B.’s home and “tore up the
house and flooded the sink.”
The jury convicted Osterbauer on all counts. The district court sentenced
Osterbauer on the burglary counts to stayed execution of prison terms of 18 and 23 months.
The district court did not impose sentence on the remaining counts.
This appeal follows.
D E C I S I O N
I. The district court did not reversibly err by denying the motion to sever.
Osterbauer argues that the district court erroneously failed to sever the burglary
charges. Minnesota Rule of Criminal Procedure 17.03, subdivision 3(1), governs
severance of joined criminal offenses.
On motion of the prosecutor or the defendant, the court must
sever offenses or charges if:
(a) the offenses or charges are not related;
(b) before trial, the court determines severance is
appropriate to promote a fair determi nation of the defendant’s
guilt or innocence of each offense or charge; or
(c) during trial, with the defendant’s consent or on a
finding of manifest necessity, the court determines severance

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is necessary to fair ly determinate the defendant’s guilt or
innocence of each offense or charge.

Minn. R. Crim. P. 17.03(1).
“Rule 17.03, subdivision 3(1)(a), requires severance of offenses that are ‘not
related,’ and Rule 17.03, subdivision 3(1)(b) and (c), require severance of related offenses
under some circumstances.” State v. Ross, 732 N.W.2d 274, 278 (Minn. 2007). Presuming,
without deciding, that the district court erred by not severing the burglary offenses, see id.
(applying the single -behavioral-incident test to address whether offenses are related for
severance), we conclude that any error was harmless.1
The supreme court has “held that i mproper joinder of two offenses was not
prejudicial when evidence of either o ffense could have been properly admitted as Spreigl
evidence[2] in the trial of the other offense.” Id. at 280. “Evidence of other crimes, wrongs,
or bad acts, while not admissible to show the defendant’s bad character, may be admissible
to show motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of

1 Osterbauer argues that the failure to sever the burglary charges prejudiced her because it
precluded her from testifying. In part, Osterbauer asserts the decision not to sever the
offense would have allowed the state to impeach her with a withdrawn plea agreement, if
she had chosen to testify . Osterbauer’s claim is not accurate. See State v. Blom , 682
N.W.2d 578, 616 (Minn. 2004) (recognizing that Minn. R. Evid. 4 10’s “plain language
gives a district court little discretion to admit a defendant’s statem ent if the statement is
made in connection with a plea or plea offer”) (quotation marks omitted).

2 In Minnesota, courts often refer to other -crime evidence as Spreigl evidence after the
supreme court’s decision in State v. Spreigl , 139 N.W.2d 167 (Minn. 1965), disallowing
the use of other-crime evidence except under certain circumstances. State v. Kennedy, 585
N.W.2d 385, 389 (Minn. 1998).

6
mistake or accident.” Id. at 282. In order for Spreigl evidence to be admissible, the
following conditions must be met:
(1) the state must give notice of its intent to admit the evidence;
(2) the state must clearly indicate what the evidence will be
offered to prove; (3) there must be clear and convincing
evidence that the defendant participated in the prior act; (4) the
evidence must be relevant and material to the state’s case; and
(5) the probative value of the evidence must not be outweighed
by its potential prejudice to the defendant.

Id. (quotation omitted). When analyzing “whether prejudice resulted from improper
joinder, [appellate courts] focus on the third, fourth, and fifth conditions.” See id.
There was clear-and-convincing evidence that Osterbauer committed the June 2016
incident. Several witness testified that Osterbauer detailed the burglaries to them, and a
search warrant uncovered S.B.’s missing sweatshirts. Police also discovered a fishing
knife, though S.B. was unable to positively identify it as hers.
The evidence of each burglary offense is relevant and material to the other burglary
offense. Evidence is relevant if it has “any tendency to make the existence of any fact that
is of consequence to the determination of the action more probable or less probable than it
would be without the evidence.” Minn. R. Evid. 401. Evidence connecting Osterbauer to
either burglary makes her involvement in the other burglary more probable “by shedding
light not only on [her] intent and participation, but also on [her] knowledge, opportunity,
and preparation, as well as the common plan used in each offense.” See Ross, 732 N.W.2d
at 282.

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And finally, the probative value of the evidence is outweighed by its potential
prejudice. The burglaries are connected to each other and are probative of Osterbauer’s
scheme to terrorize S.B.
In sum, because the burglary offenses are admissible as Spreigl evidence and would
have been admissible even if the burglary offenses had been severed for trial, any error that
the district court committed by denying Osterbauer’s request to sever was harmless.
II. The prosecutor did not commit prosecutorial misconduct warranting a new
trial.

Osterbauer contends that the prosecutor committed two instances of misconduct .
Osterbauer objected to one instance but not the other. Because the standard of review
depends on whether the appellant objected to the misconduct, each is addressed in turn.
A. Objected-to misconduct
When reviewing objected -to prosecutorial misconduct, appellate courts utilize a
harmless-error test—known as the Caron test—“the application of which varies based on
the severity of the misconduct.” See State v. Wren, 738 N.W.2d 378, 389 (Minn. 2007) ;
see also State v. Caron, 218 N.W.2d 197, 200 (Minn. 1974). The supreme court has
expressed skepticism of the Caron test, but it has not overturned it as it relates to objected-
to misconduct. See State v. Ramey, 721 N.W.2d 294, 299 n. 4 (Minn. 2006) (“Our decision
today leads us to conclude that the Caron two-tiered standard is no longer applicable to
cases involving unobjected-to prosecutorial misconduct. . . . We leave for another day the
question of whether the Caron two-tiered approach should continue to apply to cases
involving objected-to prosecutorial misconduct.”). Because Osterbauer’s claim fails under

8
the “enhanced harmless-error standard,” the uncertainty of the Caron test does not affect
our analysis. See id. at 301.
Osterbauer contends that the prosecutor committed misconduct by making a remark
about defense counsel. “[T]he [s]tate has the right to vigorously argue its case . But a
prosecutor is not permitted to disparage the defense in closing argument.” State v. Peltier,
874 N.W.2d 792, 804 (Minn. 2016) (citation omitted).
During closing a rguments, the prosecutor said, “[I have] [k]nown [the defense
attorney] for a lot of years. Obviously, he’s very good at what he does. I don’t believe for
one second he’s proud of the cross -examination of those three kids you saw who had the
guts to get up there.” The defense objected, and the court instructed the jury that, “To the
extent that there were comments that could be considered personal at tacks, you are to
disregard those comments.” The district court also reminded the jury that the “evidence is
what the witnesses tell you under oath. . . . What is not evidence is anything that the
attorneys are telling you in opening or closing arguments.”
Presuming, without deciding, that this statement constitutes misconduct , we
conclude it is harmless beyond a reasonable doubt . Ample evidence supports the jury’s
conviction. M.M. testified about the December 2015 burglary and Osterbauer’s killing of
Ducky. M.M. also testified that Osterbauer gave her live updates of her actions in the June
2016 burglary. M.Z.-E. testified that Osterbauer told him about both the December 2015
burglary of S.B.’s home and killing of Ducky, and the June 2016 burglary. K.V. testified
that Osterbauer told him about the 2016 burglary.

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Even accepting Osterbauer’s assertion tha t the prosecutor’s statement constitutes
misconduct, the prosecutor did not belabor the point and the evidence points strongly to
Osterbauer’s guilt. This behavior is insufficient to warrant reversal.
B. Unobjected-to misconduct

With unobjected-to prosecutorial misconduct, we apply a modified plain-error test.
See Ramey , 721 N.W.2d at 302. Under this test, the defendant must establish that
(1) misconduct constitutes error, and (2) that the error was plain. Id. The defendant
generally shows the error was plain “if the error contravenes case law, a rule, or a standard
of conduct.” Id. If plain error is shown, the burden then shifts to the state to demonstrate
that the error did not affect the defendant ’s substantial rights. Id. “If the three prongs of
the plain error test are met, [the reviewing court] will then [assess] whether [ it] should
address the error to ensure fairness and the integrity of the judicial proceedings.” See State
v. Dobbins, 725 N.W.2d 492, 508 (Minn. 2006) (second alteration in original) (quotations
omitted). “[The reviewing court] will correct the error only if the fairness, integrity, or
public reputation of the judicial proceeding is seriously affected. ” See i d. (quotation
omitted).
Osterbauer claims that the prosecutor committed misconduct during closing
argument by suggesting the defense failed to call a key witness. “A prosecutor commits
misconduct by commenting on a defendant’s failure to call a witness , because such a
comment suggests that the defendant has some sort of burden of proof.” State v. McDaniel,
777 N.W.2d 739, 750 (Minn. 2010).
During the closing argument, the prosecutor stated:

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There was all this talk about they have proven —the defense
had no burden to proven [sic] anything. Let’s get that straight.
They don’t have to prove anything and they didn’t. They
brought . . . one of the four siblings that the defendant has. I’m
not being flippant about this. He was a cute kid . . . I don’t
think he’s lying. But who’s the sibling that counts in this case,
[Osterbauer’s other brother].
Even if we accept that Osterbauer has shown that the prosecutor’s comment was
plain error , it is not reversible if t he state shows that it did not affect Osterbauer’s
substantial rights. To meet this burden, “the state would need to show that there is no
reasonable likelihood that the absence of the misconduct in question would have had a
significant effect on the verdict of the jury.” Ramey, 721 N.W.2d at 302 (quotation
omitted). We conclude the state met its burden.
The state argues that any error here did not affect Osterbauer’s substantial rights
because the district court instructed the jury about the burden of proof and the prosecutor’s
comments were not pervasive throughout closing. We agree. First, “[f]ailure to object or
to seek a curative instruction weighs heavily against granting the remedy of a new trial. ”
State v. Griese, 565 N.W.2d 419, 428 (Minn. 1997). Osterbauer did neither here. Second,
the prosecutor’s asserted misconduct did not “permeate[] the entire closing.” Id. (quotation
omitted). The purported misconduct was an isolated statement, and the district court
reminded the jury that the opening and closing statements were not evidence. Third, there
was ample evidence supporting Osterbauer’s conviction, including several witnesses who
testified about Osterbauer’s involvement in the burglaries, and police discovered S.B.’s
missing sweatshirts in a search of Osterbauer’s home. Finally, the district court reminded

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the jury that the state bears the burden; moreover, the prosecutor also reminded the jury
that the state bore the burden immediately before making the statement.
Considering the entirety of the closing argument, the prosecutor’s statement did not
affect Osterbauer’s substantial rights, and reversal is not required.
Affirmed.