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This opinion will be unpublished and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
A19-1506

State of Minnesota,
Respondent,

vs.

Corey Edward Fisherman,
Appellant.

Filed June 8, 2020
Affirmed
Worke, Judge

Chisago County District Court
File No. 13-CR-18-780

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

Janet Reiter, Chisago County A ttorney, David M. Classen, Assistant Coun ty Attorney,
Center City, Minnesota (for respondent)

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

Considered and decided by Hooten, Presiding Judge; Worke, Judge; and Jesson,
Judge.
U N P U B L I S H E D O P I N I O N
WORKE, Judge
Appellant challenges his third-degree assault conviction, arguing that the prosecutor
committed misconduct during closing argument. We affirm.

2
FACTS
On June 18, 2018, S.H. and appellant Corey Edward Fisherman, both inmates at the
Rush City prison, got into a disagreement over a food exchange. Fisherman “blindsided”
S.H. and punched him in the fa ce. S.H. suffered nasal and orbital fractures. Fisherman
was charged with third-degree assault, infliction of substantial bodily harm.
In her opening statement at Fisherman’s jury trial, Fisherman’s attorney stated that
the Rush City prison “may as well be planet Mars” because it has its “own code of
conduct,” “its own social mores,” “its own ecosystem,” and its own policies for holding
inmates accountable for breaking rules. On cross-examination, Fisherman’s attorney asked
corrections officers who testified about the in cident if the Rush City prison had any
nicknames. Officers responded that the Ru sh City prison was nicknamed “gladiator
school” and “fight club” because many assaults and altercations oc cur. In her closing
argument, Fisherman’s attorney reminded the jury that the Rush City prison is referred to
as “gladiator school,” and stated: “[W]e are here for a prison fight at gladiator school where
it happens all of the time.” In his rebuttal closing argument, the prosecutor stated:
[The Rush City prison is] a place . . . where the law of the State
of Minnesota applies. Right? Where it’s against the law for a
man to intentionally hit another man in the face and break the
bones in his face.
We need that law to apply, Ladies and Gentlemen. The
guards need it in order to maintain order in that place for their
own safety. We all need it. You might not care much for [S.H.]
We all certainly don’t care much for his criminal history. You
know what? This case isn’t really about him. It’s about what
[Fisherman] did on June 18 of 2018.
So this case is really about law and order. The laws of
the State of Minnesota apply in that facility. We need them to.
All of us.

3

The jury found Fisherman guilty as charged. The district court sentenced Fisherman
to 18 months in prison. This appeal followed.
D E C I S I O N
Fisherman argues that th e prosecutor committed misc onduct in rebuttal closing
argument. Because Fisherman did not object at trial, we review his claim under a modified
plain-error test. See State v. Ramey , 721 N.W.2d 294, 302 (Minn. 2006) (holding that
appellate courts review unobj ected-to prosecutorial miscon duct under a modified plain-
error test). Under this test, it is Fisherman’s heavy burden to establish an error that is plain.
See id. “An error is plain if it was clear or obvious.” Id. (quotation omitted). Plain error
“contravenes case law, a rule, or a standard of conduct.” Id. If Fisherman demonstrates
that the prosecutor committed plain error, the burden shifts to the state to demonstrate that
the error was not prejudicial. See id. The state demonstrates a lack of prejudice by showing
that “there is no reasonable likelihood that th e absence of the misconduct . . . would have
had a significant effect on the verdict.” Id. (quotation omitted).
Fisherman claims that the prosecutor “explicitly told the jury that the case was not
about [his] guilt or inno cence,” and instead, it was about “law and order in the prisons to
protect prison guards.” A “prosecutor must avoid inflaming the jury’s passions and
prejudices against the defendant.” State v. Porter , 526 N.W.2d 359, 363 (Minn. 1995).
And a prosecutor is to refrain from making an argument that would divert the jury from
deciding a case on the evidence by “injecting i ssues broader than a defendant’s guilt or
innocence.” State v. Dobbins, 725 N.W.2d 492, 512 (Minn. 2006). A prosecutor’s closing

4
argument should be based on the evidence a nd the reasonable inferences drawn from the
evidence. State v. DeWald, 463 N.W.2d 741, 744 (Minn. 1990).
Fisherman cites caselaw in support of his argument that the prosecutor’s argument
was improper. See State v. Threinen , 328 N.W.2d 154, 157 (Minn. 1983) (argued
misconduct for prosecutor to suggest that “jur y represented the people of the community
and that their verdict would determine what kind of conduc t would be tolerated on the
streets”); State v. Clark , 296 N.W.2d 372, 377 (Minn. 1980) (argued misconduct for
prosecutor to suggest that jury “should convict the defendant because of the crime problem
in general, as opposed to his indivi dual guilt based on the evidence”); State v. Clark, 189
N.W.2d 167, 169-70 (Minn. 1971) (argue d misconduct for prosecutor to refer to
“breakdown of law and order, with the apparent implication that defendants thought they
were a law unto themselves”).
But in each of those cases, while no ting that the challenged comments are
discouraged, the supreme court determined that there was no prejudice. See Threinen, 328
N.W.2d at 157 (concluding no pr ejudice because district cour t sustained objection to the
comment and gave curative instruction, th e comment was an isolated instance, and
evidence of guilt was strong); Clark, 296 N.W.2d at 377 (concl uding record as a whole
showed that comment did not play a subs tantial part in infl uencing the jury); Clark, 189
N.W.2d at 170 (concluding law-and-order comment, within context of defendants’
conduct, not “grossly inflammatory”).
Here, Fisherman’s attorney stated in her closing argument that because the prison is
a “gladiator school,” a “fight club,” and a “d angerous place” where fights happen all the

5
time, the jury should find Fisherman not guilty. But the prosecutor countered that, even if
the prison has a different culture, Minnesota law applies. The prosecutor commented that
the laws had to apply in the prison in order to protect everyone. We conclude that
Fisherman fails to establish that these comments constitute plain error because the
prosecutor’s argument did not stray from the evidence. And the prosecutor argued that the
case was about Fisherman’s guilt or innocence when he stated that the case was about what
Fisherman did.
Finally, even if we were to consider pr ejudice, it does not exist in this case.
Fisherman claims that the prosecutor’s co mments were prejudicial because there were
newspaper articles published in 2018 about prisoners assaulting and killing prison guards.
But these articles are not part of the district court record, and there is nothing in the record
showing that jurors read the articles or were aw are of the attacks. And this case is about
an inmate assaulting another inmate, not abou t an assault of a prison guard. Moreover,
Fisherman has failed to meet his burden to esta blish plain error; thus , we do not need to
consider prejudice.
Affirmed.