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This opinion will be unpublished and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
A19-0858

State of Minnesota,
Respondent,

vs.

Tarrence Antwon Brown,
Appellant.

Filed November 30, 2020
Affirmed
Cochran, Judge

Hennepin County District Court
File No. 27-CR-18-24156

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

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

Cathryn Middlebrook, Chief Appellate Public Defender, Jenna Yauch-Erickson, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Slieter, Presiding Judge; Bratvold, Judge; and
Cochran, Judge.
U N P U B L I S H E D O P I N I O N
COCHRAN, Judge
A jury found appellant guilty of first-de gree assault, two counts of second-degree
assault, first-degree aggravated robbery, a ttempted first-degree aggravated robbery, and

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unlawful possession of a firearm. The district court entered convictions for all of the
offenses except one of the two second-degree assault offenses.
In this direct appeal, appe llant argues that he is entitle d to a new trial because the
district court abused its discretion by admitting evidence that he had recently been in prison
and by admitting alleged vouching testimony. He also argues that he is entitled to a new
trial on the grounds of prosecutorial misconduct. Alternatively, appellant contends that the
case should be remanded to the district court to vacate his second-degree assault conviction
because the district court erred by convicting him of both second-degree assault and first-
degree aggravated robbery against the sa me victim. Because appellant has not
demonstrated that he is entitled to a new trial and the district court did not err by entering
the second-degree assault conviction, we affirm.
FACTS
This case began when a man approached D.C. and A.L. as they sat in a car talking
one night in September 2018. D.C. later tes tified that he recognized the man and invited
him over to the car. The man stood outside of the car conversing with D.C. for just over
two minutes. The man then produced a pistol and pointed it at D.C., demanding that D.C.
and A.L. give him “everything” they had. A.L. handed over her purse. D.C. tried to grab
the gun. During the struggle, the gun fired and a bullet struck D.C. in his torso. The man
fled, and A.L. drove D.C. to the nearest hospital.
On the way to the hospital, A.L. asked D.C. about the shooter. D.C. testified that
he told A.L. that the shooter was named “Antwon.” A.L. testified that D.C. identified the
shooter as “Twon.” The morning after bringing D.C. to the hospital, A.L. searched

3
Facebook for the name “Twon.” She testified to finding the Facebook profile of a person
who she recognized as the shooter. A.L. testified that she showed the profile to D.C., who
also recognized the assailant.
Two days after the shooting, A.L. sent screen-shots of the Facebook profile to the
police investigator assigned to the case. The investigator reviewed the profile, which bore
the name “Twon Thomas” and included the individual’s birthdate. The investigator linked
the profile to appellant Tarrence Antwon Brown because jail records confirmed that Brown
had the same birthdate, and tattoos on his hands matched those of the person depicted on
Facebook.
The state charged Brown with two counts of first-degree aggravated robbery and
one count of possession of a firearm by an ine ligible person. The state later amended the
complaint to add one count of first-degree assault and two counts of second-degree assault.
Before trial, the state moved to admit testimony that D.C. knew that Brown had been
released from prison shortly before the incident and to admit records of deposits made into
Brown’s prison account by Brown’s alibi witness and others. The state sought to admit the
evidence to corroborate D.C.’s identification of Brown and to show th e potential bias of
Brown’s alibi witness. The district court granted the motion.
At trial, A.L. testified that she “instan tly” recognized Brown as the shooter when
she saw his Facebook profile. D.C. testified that he recognized Brown because they had
spent time together at the Mall of America. The investigator testif ied that he showed a
photo of Brown to both victims. The photo was different than the Facebook photo. Both
victims independently confirmed that Brown wa s the assailant. Th e investigator also

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testified that D.C. mentioned the names of people who had deposited money into Brown’s
prison account. Similarly, D.C. testified that at one point he gave money to a third party
to give to Brown in prison.
During the defense’s case, Brown’s girlfrie nd testified as an a libi witness. She
testified that she and Brown ha ve a child together and that Brown occasionally stayed at
her home after he was released from prison in 2018. She further testified that, on the night
of the shooting, Brown was at her home for the entire evening and stayed through the night.
On direct examination, Brown’s girlfriend also testified that she gave Brown money while
he was in prison. On cross-examination, she acknowledged making numerous deposits in
Brown’s prison bank account as reflected in pr ison bank account records. After his
girlfriend completed her testim ony, Brown testified on his ow n behalf. He denied any
involvement in the shooting. On cross-examination, Brow n admitted that he told the
investigator that he did not remember his wh ereabouts on the night of the shooting when
interviewed shortly after the shooting.
After trial, the jury found Brown guilty on all six counts. The district court
convicted Brown of five of th e six counts, but did not adjudi cate him guilty of one count
of second-degree assault becaus e it was a lesser-included offense of first-degree assault.
This appeal follows.

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D E C I S I O N
I. The district court’s decision to admi t evidence relating to D.C.’s knowledge
that Brown had been in prison does not require a new trial because Brown has
not demonstrated any resulting prejudice.

Brown first argues that the district court abused its discretion by allowing the state
to introduce evidence relating to D.C.’s knowledge that Brown had been in prison prior to
the shooting. Brown contends that a new tr ial is required because he was prejudiced by
the admission of the evid ence. The state argues that th e evidence was pr operly admitted
and that, even if it was not, Brown has not su ffered any prejudice. We conclude that the
admission of the evidence does not require re versal because Brown has not demonstrated
any resulting prejudice.
“Evidentiary rulings rest within the soun d discretion of the trial court and will not
be reversed absent a clear abuse of discretion.” State v. Carridine, 812 N.W.2d 130, 141
(Minn. 2012) (quotation omitted). Moreover, even when improp er evidence is admitted,
we generally will not require a new trial “unless there is a reasonable possibility that the
wrongfully admitted evid ence significantly affected the verdict.” State v. Jaros ,
932 N.W.2d 466, 472 (Minn. 2019) (quotation omitted). Under this standard of review,
Brown bears the burden of proving both that the district court abused its discretion by
admitting the challenged evidence and that he was prejudiced as a result. State v. Swinger,
800 N.W.2d 833, 838 (Minn. App. 2011). To demonstrate prejudice, Brown must show “a
reasonable possibility that the jury would have reached a different verdict had the
wrongfully admitted testimony not come in.” Jaros, 932 N.W.2d at 472.

6
Prior to trial, the state moved to introduce evidence that D.C. knew that Brown was
previously incarcerated. The state also sought to introduce evidence regarding Brown’s
prison bank account because it anticipated showing that D.C. put money in Brown’s
account through a third party. The state sought to introduce this ev idence to corroborate
D.C.’s identification of Brow n. Brown’s counsel objecte d to the introduction of the
evidence, arguing it was prejudicial. The district court ruled the evidence was admissible.
The district court recognized the evidence coul d be prejudicial but concluded that “the
probative value substantially ou tweighs the danger of the unfair prejudice.” The district
court explained: “It is important for the jury to consider the eviden ce as they determine
whether [d]efendant is the person who committed these crimes.”
The district court also addressed the state’s request to cross-examine Brown’s alibi
witness with evidence that she had put money in Brown’s bank account. The district court
ruled that such evidence was “r elevant as it goes to the potential bias of a witness and is
admissible under Rule 616.”
At trial, the state elicited testimony fro m both D.C. and the police investigator
regarding D.C.’s knowledge that Brown was previously incarcerated. And the state elicited
testimony about D.C.’s payments to Brown’s bank account via a third person while Brown
was in prison. The state also cross-examined Brown’s alibi witness about her payments to
Brown while he was in prison —payments that she acknowle dged in her own direct
testimony.
Brown now argues that the district court abused its discretion by allowing the state
to introduce evidence showing that D.C. knew that Brown was in prison and evidence

7
relating to payments that D.C. allegedly made to Brown while in prison. Brown argues
that the district court abused its discretion because the probative value of the evidence was
substantially outweighed by its prejudicial nature. And Brown ma intains that he was
prejudiced as a result because the jury could have concluded, based on his past
incarceration, that he was more likely to have committed the crimes involved in this case.
We need not decide whethe r the district court abused its discretion by admitting the
challenged evidence because we conclude that Brown has not demonstrated that he was
prejudiced by its admission. See State v. Bustos , 861 N.W.2d 655, 666 (Minn. 2015)
(holding it was “unnecessary to decide whether the district court abused its discretion” in
excluding evidence because even if it did, “the error was harmless and does not warrant
reversal”). We reach this conclusion because the jury would have learned that Brown was
in prison even if the challenged evidence had not been admitted. On appeal, Brown does
not challenge the district court’s ruling that the state could cross-examine Brown’s alibi
witness with evidence that she had put mone y in Brown’s prison bank account. And at
trial, Brown’s alibi witness testified to putting money in Brown’s prison account both on
cross-examination and in her direct testimony. She also testified that Brown occasionally
stayed with her after being released from prison in 2018. Thus, even if the district court
had sustained Brown’s objection to the evidence introduced by the state during its case in
chief, the jury would still have learned that Brown was in prison through proper
cross-examination of his alib i witness as well as through her own direct testimony.
Accordingly, there is not a reasonable possi bility that the jury would have reached a
different verdict had the cha llenged evidence not been admitted. With no resulting

8
prejudice to Brown, there is no basis for reversing the district court’s decision to admit the
challenged testimony. See Carridine, 812 N.W.2d at 141 (stati ng that an appellate court
will not reverse a district court’s evidenti ary ruling “unless the error substantially
influenced the jury’s verdict”).
II. The district court’s decision to admit the police investigator’s alleged vouching
testimony does not require a new trial.

Brown next argues that the district c ourt abused its discretion by allowing the
prosecutor to elicit vouching testimony from the police investigator over Brown’s
objection. The state argues that the testimony in question was properly admitted and that
Brown did not suffer any prejudice from its admission. We agree with the state that Brown
did not suffer prejudice from the challenged te stimony and consequently conclude that a
new trial is not required based on its admission.
As discussed above, we review a district court’s admission of evidence for a clear
abuse of discretion. Id. A district court abuses its discretion when it admits testimony by
one witness that expresses an opinion about the credibility of another, commonly known
as vouching testimony. See State v. Ellert , 301 N.W.2d 320, 323 (Minn. 1981) (holding
that the district court abused its discre tion by admitting testimony from a police officer
opining that the defendant lied to him). To receive a new trial based on the admission of
vouching testimony, Brown must also show th at he was prejudiced as a result of the
admission of the challenged testimony. See Van Buren v. State, 556 N.W.2d 548, 549-50
(Minn. 1996) (reversing for a new trial be cause the defendant was prejudiced by the
admission of vouching testimony). Prejudice exists where there is “a reasonable possibility

9
that the jury would have reached a different verdict had the wrongfully admitted testimony
not come in.” Jaros, 932 N.W.2d at 472.
At trial, the prosecutor asked the police inve stigator a series of questions about his
discussion with D.C. while D.C. was in the hospital. The in vestigator testified that he
spoke with D.C. about the shooting, about whether D.C. knew the shooter, and about D.C.’s
prior interactions with the sh ooter. The prosecutor then as ked the investigator: “At that
time, were you satisfi ed that [D.C.] knew —knew this person?” Brown objected to the
question on the basis of vouc hing. The district court overruled the objection and the
investigator went on to testify that he “believe[d] that [D.C.] did know this person, yes.”
On appeal, Brown contends that the district court abused its discretion by overruling
his objection to the question “were you satisfied that [D.C.] knew—knew this person,” and
allowing the investigator’s re sponse to be admitted. Brow n argues that the testimony
amounts to impermissible vouching testimony. The state maintains that the question and
the investigator’s response were intended to explain the course of the investigation into the
shooting, not to vouch for D.C.’s credibility.
One witness cannot vouch for the credib ility of another witness because “the
credibility of a witness is fo r the jury to decide.” State v. Ferguson , 581 N.W.2d 824,
835 (Minn. 1998) (quoting State v. Koskela , 536 N.W.2d 625, 630 (Minn. 1995)). The
admission of improper vouching testimony in a case that tu rns on witness credibility can
deprive a defendant of a fair trial. Van Buren, 556 N.W.2d at 551-52. But reversal is not
required where the admission of vouchi ng testimony is not prejudicial. See Ellert ,

10
301 N.W.2d at 323 (holding that the distri ct court abused its discretion by admitting
vouching testimony, but the error was harmless under the circumstances).
Here, we do not need to d ecide whether the district court abused its discretion by
admitting this testimony because there is no reasonable possibility that the jury would have
reached a different verdict absent the investigator’s statement. We reach this conclusion
for several reasons. First, both D.C. and A.L. provided strong, credible testimony
supporting their identification of Brown as the assailant. D.C. and A.L. both testified that
the assailant approached them in their vehicle, that they had a good opportunity to see his
face, and that Brown was the assailant. In addition, both victims’ testimony about the
general sequence of events is confirmed by th e available surveillance video. And D.C.
testified that he knew Brown from prior interactions.
Second, the challenged statement by the investigator was made in the context of the
investigator’s description of his discussion with D.C. at the hospital and consists of only a
single line out of 37 transcribed pages of tes timony. And, on redirect, the investigator
explained that whether a vic tim knows the assailant can im pact investigatory decisions
such as whether the investigator uses “a sequential photo lineup or a confirmatory
photograph.” Here, the investigator decided to use a confirmatory photograph.
Third, the state did not rely on the investigator’s statement in its closing argument.
Instead, the state argued that the identification of Brown by D.C. and A.L. was credible
based on the strength of their testimony and the corroborating evidence.
Given the persuasive nature of the victims’ testimony and the limited nature of the
challenged statement, there is not a reasonable possibility that the jury would have returned

11
a different verdict had the district court sust ained his objection. Because there was no
resulting prejudice, the admission of the inves tigator’s statement does not require a new
trial.
III. The alleged prosecutorial miscondu ct does not require a new trial.

Brown further claims that the prosecutor committed misconduct during the state’s
closing argument requiring a new trial. Th e state counters that the prosecutor did not
commit misconduct and that, even assuming th ere was misconduct, Brown’s substantial
rights were not affected. We agree with the state.
Brown alleges that the prosecutor committed misconduct by (1) inflaming the jury’s
passions against him, (2) person ally vouching against the cred ibility of his alibi witness,
and (3) disparaging his defense. Brown did not object to an y of the alleged prosecutorial
misconduct at trial.
Because Brown did not object at trial, we apply a modified plain-error standard of
review. State v. Ramey, 721 N.W.2d 294, 302 (Minn. 2006). Under this modified standard,
Brown must show (1) an error that (2) is plain. State v. Peltier , 874 N.W.2d 792, 799
(Minn. 2016). “An error is plain if it was clear or obvious.” Ramey, 721 N.W.2d at 302
(quotation omitted). “Usually this is shown if the error c ontravenes case law, a rule, or a
standard of conduct.” Id. If Brown shows an error that is plain, the burden shifts to the
state to show that the error did not affect his substantial rights. Peltier, 847 N.W.2d at 803.
An error affects a defendant’s substantial rights if there is a reasonable likelihood that the
error significantly influenced the jury’s verdict. Montanaro v. State , 802 N.W.2d 726,
734 (Minn. 2011). Finally, if the state fails to meet its burden, we will order a new trial

12
only if the error “seriously affects the fairness , integrity, or public reputation of judicial
proceedings.” Peltier, 874 N.W.2d at 804 (quotation omitted).
We address each instance of alleged prosecutorial misconduct in turn to determine
whether the conduct amounts to an error that is plain, and then consider whether Brown’s
substantial rights were affected by any error. Because we discern no plain error affecting
Brown’s substantial rights, we do not reach the question of whether any error warrants a
new trial.
A. Inflaming the Jury’s Passions
First, Brown argues that the prosecutor inflamed the jury’s passions against him by
asking the jury to hold Brown “accountable.” We are not persuaded.
A prosecutor has a duty to avoid inflaming the jury’s passions against the defendant.
State v. Porter, 526 N.W.2d 359, 363 (Minn. 1995). Inflammatory statements are carefully
scrutinized where, as here, credibility is a central issue at trial. Id. (citing State v. Turnbull,
127 N.W.2d 157, 162 (Minn. 1964)). Yet a prosecutor does not inflame the jury’s passions
by arguing that society benefits from holdi ng people accountable for their actions. See
State v. Gates , 615 N.W.2d 331, 341 (Minn. 2000), overruled on other grounds by
Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354 (2004).
In Gates, the supreme court held that the prosecutor did not commit misconduct by
stating “[e]veryone loses if the persons responsible are not held accountable.” Id. The
supreme court explained that the statement did not rise to the level of improper argument.
Id. Here, Brown alleges that the prosecutor inflamed the jury against him by stating
“everyone loses if the person responsible is not held accountable.” This language is nearly

13
identical to the language at issue in Gates, which was found to be permissible.
Accordingly, consistent with Gates, we conclude that the pros ecutor’s statement at issue
here does not amount to misconduct.
B. Prosecutorial Vouching
Second, Brown argues that the pros ecutor committed misconduct by personally
vouching against the cr edibility of his alibi w itness during the state’s closing argument.
The state counters that the prosecutor did not vouch against the credibility of Brown’s alibi
witness, but rather argued that the evidence did not support her testimony. We agree that
the prosecutor did not vouch against Brown’s witness.
A prosecutor vouches for or against the cr edibility of a witness by “express[ing] a
personal opinion as to a witness’s credibility.” State v. Smith , 825 N.W.2d 131,
139 (Minn. 2012) (quotation omitted). A prosecutor does not express a personal opinion
as to a witness’s credibility by analyzing the evidence and arguing th at a witness is not
credible on that basis. State v. Wright, 719 N.W.2d 910, 918-19 (Minn. 2006).
Brown claims that the prosecutor person ally vouched against his alibi witness
during the prosecutor’s closing argument when the prosecutor stated, “[s]he’s not telling
the truth.” But the record reveals that the prosecutor made this statement in the context of
analyzing the evidence. Before making the statement, the pr osecutor highlighted that the
witness’s alibi was uncorroborated, noted that the witness was interested in the outcome of
the case, and emphasized that the witness did not come forward to police with the alibi
until several months after Brow n was charged. After walkin g through this evidence, the
prosecutor asserted that the alibi witness was not telling the truth. Because the prosecutor

14
was arguing credibility based on evidence in the r ecord, the prosecutor’s statement does
not constitute impermissible vouching. See id. (holding that the prosecutor did not commit
misconduct by analyzing the evidence and argui ng that it did not support the defendant’s
version of events).
C. Disparaging the Defense
Third, Brown argues that the prosecutor disparaged his defense by characterizing
his alibi as “weak” and suggesting that Brow n’s alibi witness “pitched” his defense for
him. The state counters that the challenged statements were not misconduct because the
prosecutor was arguing that the evidence did not support Brown’s alibi.
The state has a right to vigorously argue its case. Carridine, 812 N.W.2d at 149.
The state may vigorously prosecute its case by arguing that the evidence does not support
a given defense, but it crosses the line into misconduct by suggesting that the defense itself
was raised as a last resort. Peltier, 874 N.W.2d at 804. In reviewing alleged misconduct,
we “view the prosecutor’s statem ents as a whole, rather than just selective phrases or
remarks that may be taken out of context or given undue prominence to determine whether
reversible error has occurred.” State v. Waiters , 929 N.W.2d 895, 901 (Minn. 2019)
(quotation omitted).
Here, Brown contends that, taken togethe r, the two challenged statements invited
the jury to speculate that he raised his alibi defense as a la st resort. The state maintains
that the prosecutor was simply arguing, ba sed on the evidence, that Brown had not
presented a solid defense. The state’s positi on is supported by th e record. During the
state’s closing argument, the prosecutor asserted that Brown’s alibi was “weak” because it

15
arose late in the investigation, was testified to by a witness with a personal stake in the
litigation, and was not independ ently corroborated. The pros ecutor’s characterization of
the alibi as “weak” wa s directly tied to th e evidence in the reco rd. We acknowledge,
however, that the prosecutor’s assertion that Brown’s girlfriend “pitched” the defense is at
least on the line between misconduct and vigoro us prosecution because it is unrelated to
any particular item of evidence . Viewed in isolation, the prosecutor’s use of the word
“pitched” is troubling, but viewed in the context of the whole argument it is clear that the
state was arguing that the evidence did not su pport Brown’s alibi defense. Thus, while
Brown has identified a statement that approaches misconduct, we conclude that he has not
shown that the prosecutor committed error when the statement is considered in the context
of the closing argument as a whole.
D. Substantial Rights
As discussed above, the record demonstr ates that the challenged conduct does not
rise to the level of error that was plain. But, even assuming any or all of the alleged
misconduct rose to that level, it would not require a new trial because the state has shown
that there is no reasonable likelihood that the absence of the challenged statements would
have had a substantial effect on the verdict. See Montanaro, 802 N.W.2d at 734 (stating
that an error affects a defendant’s substantial rights if there is a reasonable likelihood that
the error significantly influenced the jury’s verdict). We reach this conclusion because the
challenged statements carry little weight relativ e to the strong evidence of Brown’s guilt.
Both victims identified Brow n as the assailant, their te stimony was interlocking and
reinforcing, and their testimony was corroborated by the available surveillance video. In

16
addition, D.C. knew Brown prior to the incide nt, lending support to his identification of
Brown. In sum, the record includes strong evidence to support the identification of Brown
as the assailant. In addition, the challenged statements constituted only a few lines out of
a very lengthy closing argument, making it unlikely that the statements had a real effect on
the verdict. On this record, the alleged prosecutorial misconduct provides no basis for
reversal. See id. (concluding that alleged prosec utorial misconduct “did not have a
significant effect on the jury’s verdict and t hus did not affect [a ppellant’s] substantial
rights”).
IV. The district court did not err by co nvicting Brown of both second-degree
assault and first-degree aggravated robbery against the same victim.

Lastly, Brown claims that the district c ourt erred by convicting him of two offenses
against the same victim—second-degree assault and first-degree aggravated robbery. He
argues that the district court could not prop erly convict him of bo th offenses because
second-degree assault is a lesser-included offense of first-degree aggravated robbery. We
disagree with Brown’s view of the law.
“Upon prosecution for a crime, the actor may be convicted of either the crime
charged or an included offense, but not both.” Minn. Stat. § 609.04, subd. 1 (2018). One
type of “included offense” is “a crime necessarily prove d if the crime charged were
proved.” Id., subd. 1(4). Whether an offense is ne cessarily proved by proof of another
offense is a question of law which we review de novo. State v. Degroot, 946 N.W.2d 354,
364 (Minn. 2020).

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Relying on State v. Bobo, 414 N.W.2d 490 (Minn. App. 1987), review denied (Minn.
Dec. 22, 1987), Brown contends that his se cond-degree assault o ffense was necessarily
proved when the state proved the first-degree aggravated robbery offense against the same
victim. In Bobo, the appellant argued that his two s econd-degree assault offenses were
lesser-included offenses of an aggravated robbery offense. Id. at 494. We agreed but did
not provide any legal analysis to support our conclusion. Id.
More recently, we have clarified that “s econd-degree assault is not a lesser-included
offense of first-degree aggravated robbery” because “it is possible to commit first-degree
robbery without also committing second-degree assault.” State v. Brown, 597 N.W.2d 299,
304 (Minn. App. 1999), review denied (Minn. Sept. 14, 1999). We explained that “[i]n
determining whether an offense is a necessarily included offense, a reviewing court looks
at the elements of the offense” rather than facts of a specific case. Id. And, we explicitly
declined to follow Bobo. Id. Consistent with our more recent precedent, we conclude that
the district court did not err when it convict ed Brown of both second-degree assault and
first-degree aggravated robbery.
Affirmed.