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This opinion will be unpublished and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
A19-0514

State of Minnesota,
Respondent,

vs.

Curtis Akeem Banks,
Appellant.

Filed February 24, 2020
Affirmed
Segal, Judge

Anoka County District Court
File No. 02-CR-18-2919

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

Anthony C. Palumbo, Anoka County Attorney, Robert I. Yount, Kelsey R. Kelley,
Assistant County Attorneys, Anoka, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, St. Paul, Minnesota; and

Melissa Sheridan, Assistant Public Defender, Eagan, Minnesota (for appellant)

Considered and decided by Ross, Presiding Judge; Cochran, Judge; and Segal,
Judge.

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U N P U B L I S H E D O P I N I O N
SEGAL, Judge
In this direct appeal from final judgments of conviction of two counts of first-degree
controlled-substance crime, appellant argues that his convictions must be reversed and the
case remanded for a new trial because of prosecutorial misconduct. Specifically, appellant
claims that the prosecutor improperly belittled his defense theory. Because the prosecutor
did not commit misconduct, we affirm.
FACTS
In October 2017, a confidential informant (CI) contacted a detective from the
Washington County Drug Task Force with information that K.B. was selling narcotics. On
December 11, 2017, the detective had the CI contact K.B. to set up a controlled buy of
cocaine. Prior to the controlled buy, an undercover Washington County police officer met
with the detective and the CI. The controlled buy was originally to take place in St. Paul,
but the CI could not reach the person they planned to buy from, so the undercover officer
directed the CI to again call K.B. K.B. told the CI to drive to a gas station in Blaine and
meet a man named Curtis. The CI knew appellant Curtis Banks prior to the controlled buy,
although he had not known him by name. The CI showed the undercover officer a social
media photo of Banks so the of ficer would know who to look for at the gas station. The
undercover officer and the CI then drove to the controlled-buy location.
A black Chevy Tahoe , owned by K.B., parked next to the officer’s vehicle. The
driver exited the Tahoe and entered the undercover officer’s car. The man said his name
was Curtis and gave the CI a baggie of cocaine . The undercover officer gave Curtis the

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buy money. There was discussion about the price and about returning for a second buy to
purchase more cocaine or heroin. Banks left the car and the undercover officer and the CI
left the buy location. After the controlled buy, the detective showed both the CI and the
undercover officer a publicly available photo of Banks. Both confirmed it was Banks who
sold the cocaine.
On December 27, the detective contacted the CI to conduct a second controlled buy.
This second controlled buy was conducted with the same undercover officer and the CI,
and it was conducted at the same gas station. Banks arrived in a different vehicle owned
by K.B. Banks again got in the undercover officer’s car. The undercover officer
recognized Banks from the first controlled buy. The CI and undercover officer purchased
cocaine from Banks and again identified him from a photograph. Banks was charged with
two counts of first-degree sale of a controlled substance in violation of, respectively, Minn.
Stat. § 152.081, subds. 1(1), 3(a) and 3(c) (2016).
The case was tried to a jury and both parties presented closing arguments. During
the state’s rebuttal closing argument, the prosecutor told a childhood story about trying to
tune in to a baseball game on a transistor radio and having difficulty hearing the “signal”
through the “noise” of the static. The prosecutor went on to say, “The reason I te ll that
story is that’s what I think is so critical in your role is what is the signal and what is the
noise?” Banks did not object to the state’s closing argument. The jury found Banks guilty
of both counts. This appeal follows.

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D E C I S I O N
Banks argues that the state committed prosecutorial misconduct by belittling the
defense’s theory of the case when the prosecutor included the following story in his rebuttal
argument:
When I was young my family would go up north and
camp and I was a big baseball fan and I was so frustrated
because WCCO radio would not quite come in in those night
games and I had to know how my team was doing. So a lot of
you wouldn’t even think of this now. We have satellite radio
and everything is all—but I couldn’t get the game to come in.
I’d try so hard and I’ d get it and there would be all sorts of
static and all sorts of noise and I’d try to hear what’s going on
in the game. It would be hard. It would be hard to break
through the noise and to get the actual signal of what was going
on.

The reason I tell that story is that’ s what I think is so
critical in your role is what is the signal and what is the noise?
You heard a lot from [defense counsel] about evidence that the
State does not have. And there may be times when you’ re
deliberating when you ask yourself why doesn’t the State have
that evidence? There may be times in your deliberation where
you conclude the State should have that evidence. I don’ t
know, but you might. But your role is to determine whether or
not the State has proven its case beyond a reasonable doubt
with the evidence that you did hear. So at the end of the day it
comes back to [the undercover officer] and [the CI’s]
identification of the defendant.

Banks argues that this rebuttal argument constitutes improper “belittling” by
characterizing his defense theory as “noise” and that this was meant to “distract the jury
from the ‘signal.’” Unobjected-to prosecutorial misconduct is reviewed under a modified
plain-error standard. State v. Ramey, 721 N.W.2d 294, 302 (Minn. 2006). The defendant
bears the burden of establishing that an error occurred and that it qualifies as a “plain error.”

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Id. The burden then shifts to the state to prove that there is no reasonable li kelihood that
the absence of the misconduct would have had a significant effect on the jury’s verdict. Id.
An error is plain if it is “clear or obvious.” State v. Sanchez -Sanchez, 879 N.W.2d 324,
330 (Minn. 2016) (quoting State v. Peltier, 874 N.W.2d 792, 799 (Minn. 2016)). “When
reviewing claims of prosecutorial misconduct during closing argument, we con sider the
argument as a whole, rather than focusing on particular phrases or remarks that may be
taken out of conte xt or given undue prominence.” State v. Jones , 753 N.W.2d 677,
691(Minn. 2008) (quotations omitted).
The state may not disparage or belittle the defense theory of the case in the abstract.
It is permissible, however, for the prosecution to argue there is no merit to the specific
defense raised by the defendant. State v. Waiters , 929 N.W.2d 895, 902 (Minn. 2019).
Improper belittlement occurs when the prosecution goes further and makes suggestions
that a defendant is putting forth a particul ar defense because it is the only one that “might
work” or encourages jurors to look at their own experience to show that a defense is not
believable. State v. Williams, 525 N.W.2d 538, 549 (Minn. 1994). It is also “belittling the
defense” to tell the jurors they “would be ‘suckers’ if they believed the defense.” State v.
Johnson, 616 N.W.2d 720, 730 (Minn. 2000). However, it is not improper belittling when
the prosecutor’s statements are designed to point out attempts by the defense to distract the
jury from the issues at trial. State v. Simion, 745 N.W.2d 830, 844 (Minn. 2008). Nor is it
belittling to remind the jury of their duty to base their decision on evidence and not on
emotional appeals. Waiters, 929 N.W.2d at 902.

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Here, the prosecutor did not belittle the defense theory in the abstract. Nor did the
prosecutor make other improper suggestions to the jury. Moreover, just a few sentences
after the “static and noise” story, the prosecutor accurately reminded the jury, “[Y]our role
is to determine whether or not the state has proven its case beyond a reasonable doubt with
the evidence that you did hear.” As the supreme court recently concluded in Waiters, when
“[c]onsidered in context,” the prosecutor’s argument did not improperly belittle the
appellant’s claims; the argument “reminded the jury of its duty to decide the case based on
the evidence” presented. Id. The state’s rebuttal argument thus did not improperly
“distract the jury from its proper role of deciding whether the state has met i ts burden.”
State v. Ashby, 567 N.W.2d 21, 27 (Minn. 1997). While analogizing the defense’s closing
argument to radio static may be colorful language, it does not constitute misconduct. A
“prosecutor has considerable latitude and is not required to make a colorless argument.”
State v. Williams, 586 N.W.2d 123, 127 (Minn. 1998).
The prosecutor did not improperly belittle the defense’s theory of the case in its
rebuttal argument and, consequently, did not commit misconduct.
Affirmed.