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This opinion will be unpublished and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
A19-1012

State of Minnesota,
Respondent,

vs.

Amber Lynn Flash,
Appellant.

Filed March 23, 2020
Affirmed
Bjorkman, Judge

Crow Wing County District Court
File No. 18-CR-18-1867

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

Donald F. Ryan, Crow Wing County Attorney, Candace Prigge, Assistant County
Attorney, Brainerd, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Rochelle R. Winn, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Bjorkman, Presiding Judge; Jesson, Judge; and Kirk,
Judge.

 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.

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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 her conviction s of offering a forged check, arguing that the
prosecutor committed misconduct during closing argument by shifting the burden of proof.
We affirm.
FACTS
Appellant Amber Flash worked for P.N. ’s cabin remodeling and repair company.
P.N. paid his employees by the hour, issuing weekly paychecks from a QuickBooks
program. Flash and P.N. shared an office, and Flash had access to his computer and blank
checks while he was out of the office.
In earl y April 2018, P.N. was reconciling his books and noticed that Flash had
received two paychecks during one pay period. Further review revealed five suspicious
checks, totaling $1,712.30, issued to and deposited by Flash between January and March.
The checks were not recorded in QuickBooks, as they would have been if he had issued
them. And the signature on the checks was “just scribbled,” unlike his own. P.N. noticed
that the check dated January 3 bore a higher check number than had been issued to him at
that time. Another reflected payment for a week that Flash had not worked.
P.N. advised Flash by text message that she should not report for work; he did not
state a reason. Flash may have called the following day to confirm whether she was
supposed to work, but she made no further contact with him after that. P.N. reported the
checks to his bank as fraudulent, and the funds were removed from Flash’s account, leaving
her with a negative balance.

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Police investigated the reported checks, and Flash acknow ledged endorsing and
depositing them. Flash was charged with five counts of offering a forged check. A jury
found her guilty on all counts. Flash appeals.
D E C I S I O N
When, as here, defense counsel objected to alleged prosecutorial misconduct at trial,
we determine whether the p rosecutor committed misconduct and, if so, whether it was
harmless. State v. Jackson, 773 N.W.2d 111, 121 (Minn. 2009). For claims of misconduct
during closing argument, we consider the argument “as a whole, rather than just selective
phrases or remarks that may be taken out of context or given undue prominence.” State v.
McDaniel, 777 N.W.2d 739, 751 (Minn. 2010) (quotation omitted). If the argument was
improper, we apply a “two-tiered harmless-error analysis,” depending on the seriousness
of the misconduct. Jackson, 773 N.W.2d at 121.
Flash argues that the prosecutor committed misconduct during closing argument by
shifting the burden of proof. “ It is highly improper for a prosecutor to shift the burden of
proof to the defendant during closing arguments. ” State v. Nissalke, 801 N.W.2d 82, 106
(Minn. 2011) (quotation omitted). A prosecutor shifts the burden of proof if she implies
that the defendant has the burden of proving her innocence. State v. Martin, 773 N.W.2d
89, 105 (Minn. 2009).
Flash asserts that the prosecutor implied such a burden by pointing out that she did
not contact P.N. to ask why he terminated her employment or why more than $1,700 had
been removed from her bank account. And she points to the prosecutor’s use of rhetorical
questions:

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And you need to look, as the Judge said, use your reason
and common sense. Would a person that had received checks
and they were then taken out of their account contact their
employer if they felt that they were legitimate checks and ask
about them? Why aren’t these in my checking, what happened
with these? And the evidence is that she didn’t contact him at
all. So again, that goes to whether she knew that they were not
legitimate checks, and whether she —and so whether she
intended to offer these forged checks.

Flash contends this argument suggested that she should have come forward with “a
reasonable explanation for why she did not call her employer, as an innocent person would
have done, under the same circumstances.” We are not persuaded.
A prosecutor does not improperly shift the burden of proof by commenting on “the
lack of evidence supporting a defense theory. ” McDaniel, 777 N.W.2d at 750. And a
prosecutor may “pose rhetorical que stions to the jury, asking it to use common sense to
determine whether the defense presented is reasonable.” State v. Bauer, 776 N.W.2d 462,
474 (Minn. App. 2009), aff’d, 792 N.W.2d 825 (Minn. 2011). That is what occurred here.
The challenged statements fairly countered the defense theory that P.N. mistakenly
issued the checks and Flash had no reason to believe she was not entitled to the money.
The prosecutor pointed to specific evidence in the record and asked the jury to appl y
common sense to assess Flash’s actions and inactions. She did not argue that Flash failed
to prove her innocence by not testifying or otherwise explaining her actions . Rather, the
prosecutor cited Flash’s failure to act in response to being fired and having money removed
from her bank account as evidence that she offered the checks “with intent to defraud .”
See Minn. Stat. § 609.631, subd. 3 (2016). And the prosecutor followed the challenged

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argument by acknowledging the state’s burden to prove its case beyond a reasonable doubt.
On this record, we discern no error in the prosecutor’s argument.
Affirmed.