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This opinion will be unpublished and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
A19-1068

State of Minnesota,
Respondent,

vs.

Portia Renee Glover,
Appellant.

Filed June 15, 2020
Affirmed in part, reversed in part, and remanded
Reilly, Judge

Hennepin County District Court
File No. 27-CR-18-20360

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

Erik Nilsson, Acting Minneapolis City Attorney, Rebekah M. Murphy, Assistant City
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Gina D. Schulz, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Reilly, Presiding Judge; Smith, Tracy M., Judge; and
Florey, Judge.
U N P U B L I S H E D O P I N I O N

REILLY, Judge
Appellant challenges her convictions for fifth -degree assault arguing that (1) the
prosecutor committed misconduct, (2) the district court abused its discretion by denying

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her jury-instruction request, (3) the district court abused its discretion in its ev identiary
rulings, and (4) the district court erred in entering judgments of conviction for two counts
of fifth-degree assault from different sections of the same criminal statute. We determine
that the prosecutor did not commit misconduct and the distric t court did not abuse its
discretion in its rulings about the jury instructions or the admission of evidence. However,
we reverse and remand for correction of the warrant of commitment.
FACTS
In 2018, appellant Portia Renee Glover hit the victim, J.G., in the face during a
karaoke competition at a Minneapolis nightclub. 1 Appellant, appellant’s friend, and J.G.
were standing in the club’s dressing room. While J.G. and appellant’s friend were talking,
appellant hit J.G. J.G. fell into a table and landed o n the cement floor. Appellant and her
friend ran from the room and out of the club.
Another karaoke competitor, S.G.-M., walked into the dressing room and witnessed
a portion of the assault. S.G. -M. saw appellant “make one punch,” and saw J.G. “being
pushed over a table onto the floor.” S.G. -M. ran out of the dressing room and alerted
security. C.E., a security guard, ran toward the dressing room. C.E. saw two females run
past him from the direction of the dressing room and out into the street. In the dressing
room, C.E. saw a few tables and chairs knocked over and “a female [lying] on the ground”
with “a good amount of blood all over the place.” C.E. stated that J.G. appeared “very
scared and very frightened.” Security guard G.J. also ran toward the dressing room. As

1 The facts are based on witness testimony from the trial.

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he approached the dressing room, G.J. saw appellant “running past” him and “pushing her
friend to leave very quickly.” G.J. saw J.G. crying and lying “on the ground with . . . blood
coming out of her nose.”
Respondent State of Minnesot a charged appellant with fifth-degree assault (harm)
under Minn. Stat. § 609.224, subd. 1(2) (2016); fifth-degree assault (fear) under Minn. Stat.
§ 609.224, subd. 1(1) ( 2016); and disorderly conduct under Minn. Stat. § 609.72,
subd. 1(3) (2016). The dis trict court held a two -day jury trial, at which the jury heard
testimony from the victim J.G., security guards C.E. and G.J., eyewitness S.G.-M., and the
paramedic who transported J.G. to the hospital. Appellant did not testify. The jury found
appellant guilty of fifth-degree assault (harm) and fifth-degree assault (fear), but not guilty
of disorderly conduct. The district court entered convictions on both assault counts and
imposed sentence.
This appeal follows.
D E C I S I O N
I. The prosecutor did not commit misconduct during closing argument.
Appellant claims that the prosecutor committed misconduct by vouching for the
credibility of the state’s witnesses during closing argument. A prosecutor engages in
prosecutorial misconduct by violating “clear or established standards of conduct ” such as
“rules, laws, orders by a district court, or clear commands in this state’s case law.” State
v. McCray, 753 N.W.2d 746, 751 (Minn. 2008). The district court has broad discretion to
determine the propriety of a pr osecutor’s statements during closing argument. Id. at 751-
52. When, as here, the appellant does not object at trial, we apply a modified plain -error

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test. State v. Ramey, 721 N.W.2d 294, 302 (Minn. 2006) . Appellant must show that the
misconduct constitutes error and that the error was plain. Id. Appellant may establish plain
error by demonstrating that the misconduct violates case law, a rule, or a standard of
conduct. Id. If appellant establishes plain error, the burden shifts to the state to prove that
the error did not affect appellant ’s substantial rights. Id. If all three prongs are satisfied,
we may correct the error “only if it seriously affect[s] the fairness, integrity, or public
reputation of judicial proceedings.” State v. Peltier, 874 N.W.2d 792, 804 (Minn. 2016)
(citation and quotations omitted). Generally, reversal is warranted only if the misconduct
is so prejudi cial that it impaired appellant’ s right to a fair trial. State v. Johnson , 616
N.W.2d 720, 727-28 (Minn. 2000). A prosecutor may not “personally endorse a witness’s
credibility” in closing arguments. State v. Jackson , 773 N.W.2d 111, 123 (Minn. 2009)
(citation omitted). That said, the prosecutor may “argue that a witness was or was not
credible.” Id. Statements that a witness is “very sincere” or “very frank” do not constitute
impermissible vouching. State v. Smith, 825 N.W.2d 131, 139 (Minn. App. 2012), review
denied (Minn. Mar. 19, 2013).
The prosecutor made these statements during closing argument:
You heard from . . . [S.G.-M.] that [appellant] appeared
- - and he was honest with you. He wasn’t certain. But, in that
moment, what he saw - - that it was [appellant] who appeared
to be the aggressor. That is con sistent with [J.G.’s] testimony
- - that [she] did nothing to provoke this.
You heard from [J.G.] that her head hit the floor. She
was honest with you. She couldn’t say with certainty whether
[appellant] punched her while she was on the floor or whether
her head just hit the floor, but [S.G. -M.] knew what happened

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because he saw it. He wasn’t on the floor. He told you that
[appellant] . . . struck [J.G.’s] head on the cement floor.
You can also look at a guilty conscience. [Appellant]
ran away. You heard from . . . the security guards . . . that
[appellant] ran away that night. They didn’t see the assault that
night. They couldn’t say [with] certainty tha t [appellant] was
the assaulter - - was the person who assaulted. But they were
honest with you, and they told you that they did see [appellant]
and her friend running.

. . . .

Now, [J.G.] was honest with you. She said she did not
know what [appellant] was even saying when she was being
rambunctious [during the competition]. But [J.G.] testified that
she remembered it was [appellant] who was being
rambunctious earlier in the contest, and it was the same person
in the dressing room.

. . . .

[Security guard G.J.] did not testify that he saw the assault. He
admitted to you that he could not say who the assailant was.
That’s not a lack of identificati on. That’s him being honest
with you. He did say, however, that he saw [appellant] leave
the room; and that’s exactly what the video shows.
We discern no error in these statements. A statement that a witness is “very
believable” does not constitute a direct endorsement when the prosecutor does not directly
vouch for the witness and when the statements are “made within a discussion of factors
affecting the credibility of the witnesses.” State v. Swanson, 707 N.W.2d 645, 656 (Minn.
2006)2; see also State v. Googins , 255 N.W.2d 805, 806 (Minn. 1977) (stating that

2 The prosecutor made several statements during closing argument related to witness
credibility. Id. at 656. The prosecutor stated, “[Witness 1], very believable. Very
believable witness.” Id. The prosecutor also stated, “The believability of [Witness 2]. The
state believes she is very believable, primarily because her case is done.” Id. The

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prosecution has right to analyze evidence and “vigorously argue” state’s witnes ses are
worthy of credibility).
Here, the prosecutor did not express a personal opinion about the credibility of the
witnesses. Instead, the prosecutor’s statements addressed the factors a jury may consider
in determining the weight to accord to the witness statements. In each instance, the
prosecutor noted that the witnesses acknowledged that they could not remember po rtions
of the evening, or could not say with certainty what occurred at various times in the
dressing room. The prosecutor suggested that these statements lent credibility to the
witnesses’ accounts of the evening.
While the prosecutor’s statements may ha ve been “inartful,” they do not constitute
misconduct. State v. Fields , 7 30 N.W.2d 777, 786 (Minn. 2007) (“[P]rosecutor’s
argument, though inartful, did not constitute misconduct and instead made permissible
arguments . . . and reasonable inferences based on the evidence.”). Because appellant failed
to show that an error occurred, we do not address the remaining plain -error factors. See
State v. Lilienthal, 889 N.W.2d 780, 785 (Minn. 2017) (recognizing that if “any one of the
requirements” of the plain -error test is not satisfied, we “need not address any of the
others”). Appellant is not entitled to reversal based on prosecutorial misconduct.

prosecutor also stated, “[Witness 2] is very believable.” Id. The Swanson court held that
the statement , “[t]he state believes [Witness 2] is very believable” amounted to
impermissible vouching on its face because the state directly endorsed the credibility of
that witness, but that the error was not sufficiently prejudicial. Id. It did not conclude that
the other statements constituted impermissible vouching. Id.

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II. The district court did not abuse its discretion by denying appellant’s request
for a jury instruction.
Appellant challenges the district court’s denial of her jury-instruction request. The
district court has “considerable latitude in selecting jury instructions, including the specific
language of those instructions.” Peltier, 874 N.W.2d at 797 . The refusal to give a
requested instruction lies within the discretion of the district court and will not be reversed
absent an abuse of discretion. State v. Cole, 542 N.W.2d 43, 50 (Minn. 1996). A district
court abuses its discretion when it refuses to give a requested instruction that the evidence
warrants. Turnage v. State, 708 N.W.2d 535, 546 (Minn. 2006).
Before trial started, appellant asserted that issues “related to race and sexuality could
possibly come up” and requested a jury instruction for implicit bias. Appellant did not
provide any Minnesota authority for the proposed implicit-bias instruction, and the district
court denied the request. A ppellant bears the burden of proving that the district court
abused its discretion by denying her request for a jury instruction and that the abuse
prejudiced the outcome of the case. State v. Huber, 877 N.W.2d 519, 525 (Minn. 2016).
Appellant has not satisfied that burden. Before trial, the district court addressed the
prospective jurors and advised them that appellant was “presumed innocent of the charges
made.” The district court recognized that jurors “bring certain attitudes and viewpoints
into any setting, including the courtroom,” a nd explained that the jury -selection process
permitted the court “to determine whether there is any reason to be concerned about
whether a prior life experience or viewpoint could interfere with [a juror’s] ability to be an
impartial juror in this case.” A close review of the record reveals that each juror was then

8
questioned by both the prosecutor and defense counsel. The jurors selected for the jury
panel agreed to listen carefully to the testimony of all the witnesses as they deliberated to
reach a verdict. After the district court empaneled the jury, it again advised the jurors that
appellant was “presumed innocent of the charges made.” The district court specifically
instructed the jury to evaluate the testimony of the witnesses carefully, and identified a
number of factors bearing on the believability and weight of a witness’s testimony. Given
this record, we conclude that the district court did not abuse its discretion by declining to
give appellant’s proposed jury instruction.
III. The district court did not abuse its discretion in its evidentiary rulings.
Appellant argues that the district court abused its discretion by permitting the
witnesses to identify appellant as one of the two people captured on the security videotape
in the nightclub. “Evidentiary rulings rest within the sound discretion of the district court,
and we will not reverse an evidentiary ruling absent a clear abuse of discretion.” State v.
Ali, 855 N.W.2d 235, 249 (Minn. 2014). Because appellant did not object to admission of
this evidence at trial, we review for plain error. State v. Griller , 583 N.W.2d 736, 740
(Minn. 1998) (describing plain -error test for evaluating an assertion of error not raised
before the district court). Appellant must show that there was an error, that the error was
plain, and that the error affected her substantial rights. Id. If the first three elements are
satisfied, we will reverse if the error seriously affects the fairness, integrity, or publi c
reputation of judicial proceedings. Id.
Here, a security camera in the hallway outside the dressing room showed two
women running down the hallway away from the dressing room. At trial, three witness es

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testified that appellant was one of the two women depicted on the surveillance video.
S.G.-M. personally witnessed the assault and saw appellant hit J.G. He watched the
surveillance video and identified one of the women in the footage as appellant, the same
person who punched J.G. Security guard C.E. also viewed the security footage and testified
that the women in the video were the same women who ran past him out of the dressing
room. Security guard G.J. testified that he saw appellant run out of the dressing room and
out of the club. G.J. identifie d appellant as one of the two women in the video running
away from the dressing room.
Appellant argues that the testimony from S.G. -M., C.E., and G.J. amounts to
inadmissible opinion testimony because the jury could view the video and determine for
itself whether appellant appeared in the video. We have upheld the use of lay opinion
testimony when it is “(a) rationally based on the perception of the witness; (b) helpful to a
clear understanding of the witness’ testimony or the determination of a fact in is sue; and
(c) not based on scientific, technical, or other specialized knowledge [under rule 702].”
Minn. R. Evid. 701. “Testimony in the form of an opinion or inference otherwise
admissible is not objectionable because it embraces an ultimate issue to be decided by the
trier of fact.” Minn. R. Evid. 704. To determine whether opinion testimony is helpful to
the jury, “a distinction should be made between opinions as to factual matters,” which are
helpful, “and opinions involving a legal analysis or mixed questions of law and fact,” which
are unhelpful. Id., 1977 comm. cmt.
Here, each witness personally saw appellant in the dressing room or in the hallway
immediately outside the dressing room. Each witness identified appellant as the person

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they saw. When the jury watched the video, the witnesses explained who was in the video
and what was occurring. This testimony assisted the jury by giving context for what was
happening in the video, explaining the layout of the nightclub and the locatio n of the
dressing room, and in assessing appellant’s role in the incident. See State v. Pak , 787
N.W.2d 623, 629 (Minn. App. 2010) (“A lay witness’s opinion or inference testimony may
help the jury by illustrating the witness ’s perception in a way that th e mere recitation of
objective observations cannot.”). The witnesses each testified about their personal
observations. And the witness testimony involved factual matters rather than opinions
involving a legal analysis. Appellant has not established that an error occurred.3 Because
appellant has not shown that an error occurred, we do not consider the remaining factors.
See State v. Brown, 815 N.W.2d 609, 620 (Minn. 2012) (noting that if an appellate court
determines that any prong of the plain -error analysis is not satisfied, it need not consider
the remaining prongs).4
IV. The district court erred by entering judgments on both fifth -degree assault
counts.
Appellant argues that the district court erred by entering judgment and imposing
sentence on both fift h-degree assault counts. We agree. A criminal defendant “may be
convicted of either the crime charged or an included offense, but not both.” Minn. Stat.

3 Appellant argues that the district court’s actions were inconsistent with federal caselaw
interpreting the federal rules of evidence. The cases cited by appellant are not binding on
this court, Swanson, 707 N.W.2d at 654, and appellant has not cited to relevant Minnesota
authority.
4 Appellant argues that the cumulative effect of the errors dep rived her of a fair trial.
Because we determine that there were no errors, we reject this argument.

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§ 609.04, subd. 1 (2018). Section 609.04 also “bars multiple convictions under different
sections of a criminal statute for acts committed during a single behavioral incident.” State
v. Jackson, 363 N.W.2d 758, 760 (Minn. 1985). Application of section 609.04 is a question
of law reviewed de novo. State v. Chavarria-Cruz, 839 N.W.2d 515, 522 (Minn. 2013).
The state charged appellant with fifth -degree assault (fear) under Minn. Stat.
§ 609.224, subd. 1(1) , and fifth-degree assault (harm) under Minn. Stat. § 609.224,
subd. 1(2). A conviction of fifth -degree assault (fear) requires the state to prove that the
defendant committed “an act with intent to cause fear in another of immediate bodily harm
or death.” Id., subd. 1(1). A conviction of fifth -degree assault (harm) requires a showing
that the defendant “intentionally inflict[ed] or attempt[ed] to inflict bodily harm upon
another.” Id., subd. 1(2). Because assault (harm) and assault (fear) are different sections
of the same criminal statute, the district court erred by formally adjudicating convictions
on both counts. See State v. Clark, 486 N.W.2d 166, 170 (Minn. App. 1992) (holding that
section 609.04 forbids “multiple convictions under different sections of a criminal statute
for acts committed during a single behavioral incident” (quotations omitted)). For these
reasons, we remand to the district court to vacate one of the domestic -assault convictions
and correct the warrant of commitment, leaving the jury’s finding of guilt on the vacated
count in place.
Affirmed in part, reversed in part, and remanded.