State of Minnesota, Respondent,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A20-0011

State of Minnesota,
Respondent,

vs.

Tou Pheng Yang,
Appellant.

Filed February 1, 2021
Affirmed
Gaïtas, Judge

Washington County District Court
File No. 82-CR-17-3672

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

Pete Orput, Washington County Attorney, Nicholas A. Hy dukovich, Assistant County
Attorney, Stillwater, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Steven P. Russett, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Reyes, Pres iding Judge; Connolly, Judge; and Gaïtas,
Judge.
NONPRECEDENTIAL OPINION
GAÏTAS, Judge
Appellant Tou Pheng Yang appeals his multiple convictions for controlled-
substance crimes following a ju ry trial. He argues that he should receive a new trial
because the prosecutor’s misconduct unfairly prejudiced the jury and impacted the verdicts.

2
Yang claims that the prosecutor improperly asked police officers for their expert opinions
about whether he intended to sell, and not simply use, controlled substances. And he claims
that the prosecutor committed misconduct during closing argument by asking the jury to
“care” about the community and hold him accountable. Yang acknowledges that his trial
attorney did not object to the prosecutor’s conduct, limiting this court to plain-error review.
We conclude that the prosecutor commi tted plain error by asking several police
witnesses to give expert opinions about Yang’s intent, and that some of the prosecutor’s
remarks during closing arguments constitu ted misconduct. But because there was
overwhelming evidence of Yang’s guilt, the prosecutor’s misconduct did not affect Yang’s
substantial rights, and therefore, Yang is not entitled to a new trial. We affirm.
FACTS1
Yang’s convictions stem from two traffic st ops that occurred about six weeks apart.
The first traffic stop happened at night in late August 2017. Woodbury Police Officer
Tommy Satele saw a maroon Lexus SUV weave in its lane and cross over the fog line
several times.2 Officer Satele stopped the SUV. Ya ng was the driver, and his girlfriend,
the vehicle’s registered owner, was in the pa ssenger seat. Officer Satele discovered that
Yang had an arrest warrant related to a misd emeanor traffic offense. He called Officer
Veronica Giese to assist him. When she arri ved, the officers took Yang out of the SUV
and handcuffed him.

1 Our summary of the facts is based on the record of Yang’s jury trial.

2 We identify the officers involved in Yang’s case only to facilitate our later discussion of
the prosecutor’s questions to these officers during Yang’s jury trial.

3
Officer Satele searched Yang’s pockets and found a rolled up piece of paper, about
$1,500 in cash, and three c ounterfeit $100 bills. The paper was wrapped around a small
amount of methamphetamine. After this discovery, police brought a drug-sniffing dog to
the scene. Following the dog sniff, Officer Sate le searched the SUV’s interior. In the
backseat, he found a brown designer backpack containing a loaded gun, a gun magazine, a
plastic bag containing a white substance la ter confirmed to be about 24 grams of
methamphetamine, and a black substance later confirmed to be a mixture of about 1.2
grams of morphine and codein e. Subsequent testing revealed the presence of DNA
consistent with Yang’s DNA on the gun. Th e backpack also contained documents in
Yang’s name, including a bank deposit slip, a letter addressed to Yang, a vehicle title, and
a paper version of Yang’s driver’s license.
During the search of the vehicle, Officer Giese noticed a cellphone in the SUV’s
center console openly displaying messages that seemed to reference a drug exchange.
When the police examin ed the phone after obt aining a warrant, they discovered a photo
showing bags of marijuana positioned next to a leather bag and keys to a BMW vehicle,
and other photos showing bund les of cash, firearms in black cases, and Yang’s driver’s
license. The phone also contained text messa ges that suggested to police that Yang was
selling marijuana.
The second traffic stop happened in ea rly October 2017 when Yang was driving his
own silver BMW sedan without a valid drive r’s license. The police pulled Yang over,
arrested him, and took him to jail. After the arrest, officers searched Yang’s car and found
several items in the trunk. This time, they found a loaded gun inside a black designer

4
handbag. They also found a brown designer handbag containing about 42 grams of
marijuana wrapped in plastic, empty small plas tic bags, and thousands of dollars in cash
and counterfeit bills.
Based on the evidence found during the tw o traffic stops, Yang was charged with
first-degree possession of 17 or more grams of methamphetamine with intent to sell under
Minn. Stat. § 152.021, subd. 1( 1) (2016) (count one); seco nd-degree possession of 10 or
more grams of methamphetamine while in possession of a firearm under Minn. Stat.
§ 152.022, subd. 2(a)(2)(i) (2016) (count two) ; third-degree possession of 10 or more
grams of a narcotic other than heroin, Minn. Stat. § 152.023, subd. 2(a)(1) (2016) (count
three); fifth-degree possession of a controlled substance (morphine), Minn. Stat. § 152.025,
subd. 2(1) (2016) (count four); and fifth-degree possession of marijuana with intent to sell,
Minn. Stat. § 152.025, subd. 1(1) (2016) (count five). The state also gave notice of its
intent to seek a sentencing enhancement under Minnesota Statutes section 609.11,
subdivisions 5(a) and 9 (2016), on counts one, three, and four based on Yang’s alleged
commission of the drug offenses while possessing firearms. Yang pleaded not guilty and
had a single jury trial involving the charges stemming from both traffic stops.
During the state’s case-in-ch ief, five police officers and two Minnesota Bureau of
Criminal Apprehension scientists testified, and the prosecutor offered 44 exhibits into
evidence. On direct examina tion, the prosecutor asked the five police officers for their
opinions about whether Yang possessed the drugs for personal use or to sell, phrasing the
questions differently for each officer. The fi ve officers testified that the evidence was
consistent with intent to sell both methamphetamine and marijuana. Defense counsel made

5
some objections during the officers’ test imony on the grounds of “speculation” and
“foundation.” But defense counsel did not object to the substance of the officers’ opinions.
Yang testified that most of the items seized during the two arrests—the cellphone,
the firearms and magazine, the backpack c ontaining 24 grams of methamphetamine, and
the handbag containing 42 gr ams marijuana—did not belong to him. He did admit,
however, that the cash and small amount of me thamphetamine found in the paper in his
pockets during the first stop were his, as was some of the marijuana and cash found during
the second stop. Yang also admitted that he knew there was a gun in his car during the
second stop. But he denied that the gun be longed to him, and he denied knowing who
owned the gun.
During closing arguments, the prosecutor emphasized a theme of public safety and
personal accountability to the jury. The prosecutor argued that Yang was a danger to the
community and did not care about the community . He asked the juro rs to care about the
community and to “do the right thing” by holding Yang accoun table with their verdicts.
Defense counsel made no objection to the state’s closing argument.
The jury found Yang guilty of all five c ounts. At sentencing, the district court
sentenced Yang to 110 months in prison for count one and concurrent 36-month terms for
counts four and five. This appeal follows.
DECISION
Yang argues that the prosecutor committed two types of misconduct that prejudiced
the jury and ultimately affected the verdicts. First, he conte nds that the prosecutor asked

6
questions designed to elicit inadmissible expert-opinion testimony. And second, he claims
that the prosecutor made improper remarks during closing arguments.
In reviewing prosecutorial-misconduct clai ms, our standard of review depends on
whether defense counsel objected to the misconduct at trial. See State v. Ramey , 721
N.W.2d 294, 302 (Minn. 2006). Because defense counsel did not object to the prosecutor’s
questions on the ground that they called fo r inadmissible expert testimony, and did not
object to the prosecutor’s remarks during clos ing argument, we review these claims for
plain error. See State v. Griller , 583 N.W.2d 736, 740 (Minn. 1998) (holding that errors
not preserved with a trial objection are reviewed under the plain-error standard of review).
The Minnesota Supreme Court has adopte d a modified plain-error standard of
review for claims of pr osecutorial misconduct. Ramey, 721 N.W.2d at 302. Under the
modified plain-error standard , a defendant must show that the prosecutor engaged in
conduct constituting an error that was plain. Id. An error is plain if it is “clear or obvious,”
meaning that it “contravenes case law, a rule, or a standard of conduct.” State v. Sanchez-
Sanchez, 879 N.W.2d 324, 330 (Minn. 2016) (quotations omitted). If plain error is shown,
the burden then shifts to the state to demonstrate that the error did not affect the defendant’s
substantial rights. Ramey, 721 N.W.2d at 302. To demonstrate that the error did not impact
the defendant’s substantial rights, “the [s]t ate must show that there is no reasonable
likelihood that the absence of the misconduct in question wo uld have had a significant
effect on the verdict of the jury.” State v. Matthews, 779 N.W.2d 543, 551 (Minn. 2010)
(quotation omitted). Finally, if the state fails to satisfy its burden, the appellate court

7
considers “whether the error should be addressed to ensure fairness and the integrity of the
judicial proceedings.” Id.
We now turn to Yang’s claims, consider ing each allegation of misconduct in turn.3
I. Eliciting Inadmissible Expert-Opinion Testimony

In determining whether the prosecutor elicited improper expert-opinion testimony,
we first consider whether the prosecutor’s conduct was plainly erroneous. The state “may
not seek a conviction at any price” because prosecutors are “minister[s] of justice whose
obligation is to guard the rights of the accused as well as to enforce the rights of the public.”
Ramey, 721 N.W.2d at 300 (quoting State v. Penkaty, 708 N.W.2d 185, 196 (Minn. 2006)).
That is why “[w]e expect th at prosecutors . . . are awar e of our caselaw proscribing
particular conduct as well as the standa rds of conduct prescribed by the ABA.” Ramey,
721 N.W.2d at 300-01. One expectation set fo rth in the caselaw is that prosecutors must
not elicit inadmissible trial testimony. State v. Mosley, 853 N.W.2d 789, 801 (Minn. 2014);
Ramey, 721 N.W.2d at 300; State v. Harris, 521 N.W.2d 348, 353-54 (Minn. 1994); State
v. Valentine, 787 N.W.2d 630, 642 (Minn. App. 2010), review denied (Minn. Nov. 16,
2010).

3 We use the term “prosecutorial misconduct” here to refer to trial errors committed by the
prosecutor because this is the term used in the caselaw. Our use of this term should not
suggest that we are ascribing any particular intent to the prosecutor’s conduct. Nor do we
intend to equate prosecutorial misconduct with attorney ethics. See State v. Leutschaft, 759
N.W.2d 414, 418 (Minn. App. 2009) (dis cussing distinction between prosecutorial
misconduct and prosecutorial error but appl ying plain-error review regardless of
characterization of prosecutor’s condu ct when no objection was made), review denied
(Minn. Mar. 17, 2009).

8
The Minnesota Rules of Evid ence govern the admissibility of evidence. Rule 702
allows an expert witness to testify “in the form of an opinion” if the witness’s “scientific,
technical, or other specialized knowledge will assist the trie r of fact to understand the
evidence or to determine a fact in issue. ” Under rule 704, which concerns opinion
testimony in general, “[t]estimony in the fo rm 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. Indeed, “[e]xpert and lay witnesses will not be precluded
from giving an opinion merely because the opinion embraces an ultimate fact issue to be
determined by the jury.” Id., 1977 comm. cmt. Expert-opi nion testimony on an ultimate
issue is therefore generally ad missible so long as it is helpful to the factfinder. State v.
Moore, 699 N.W.2d 733, 740 (Minn. 2005) (citing Minn. R. Evid. 704)).
At the same time, the Minnesota Supreme Court has “consistently expressed . . .
concern that expert testimony be carefully monitored in criminal cases so that a jury is not
dissuaded from exercising its own independent judgment.” State v. DeShay, 669 N.W.2d
878, 885 (Minn. 2003). The supreme court has been “very reluctant” to allow experts to
testify regarding “matters that are generally for the jury’s determination.” Id. (quotation
omitted). For instance, casela w provides that expert witnesses may not offer legal
conclusions or give an opinion on a defendant’s subjective state of mind. See, e.g., State
v. Provost , 490 N.W.2d 93, 101-02 (Mi nn. 1992) (discussing in admissible psychiatric
opinion on defendant’s criminal intent); State v. DeWald , 463 N.W.2d 741, 744 (Minn.
1990) (determining whether officer offered a legal or factual conclusion); State v. Stewart,
923 N.W.2d 668, 677 (Minn. App. 2019) (“An expert witness may not offer an opinion as

9
to a defendant’s intent.”), review denied (Minn. Apr. 16, 2019). Moreover, courts must be
mindful of the fact that “[a]n expert with special knowledge has the potential to influence
a jury unduly.” State v. Grecinger, 569 N.W.2d 189, 193 (Minn. 1997); see also DeShay,
669 N.W.2d at 885-86 (Minn. 2003) (discussing perils of expert testimony, and concluding
that law enforcement officer’s expert testimony on gangs was improperly admitted).
These evidentiary principles apply to drug-sale prosecutions involving expert-
opinion testimony on a defendant’s inte nt to sell controlled substances. See State v.
Collard, 414 N.W.2d 733, 736 (Minn. App. 1987) (affirming admission of opinion that
large quantity of drugs was indicative of sale because the testimony was “not expressed as
a legal conclusion or in otherwise conclusive terms”), review denied (Minn. Jan. 15,
1988).4 Accordingly, when a prosecutor asks a law enforcement officer a question during
trial that is calculated to elic it the officer’s conclusive e xpert opinion about whether the
defendant had an intent to sell drugs, th e prosecutor may commit misconduct depending
on the specific question asked.

4 We recognize that the parties have cited a number of unpublished decisions from this
court. Haaland v. State, A10-1124, 2011 WL 781229, at *4 (Minn. App. Mar. 8, 2011);
State v. Martin , A08-1523, 2009 WL 33642 36, at *2, *7-9 (Minn. App. Oct. 20, 2009),
review denied (Minn. Jan. 19, 2010); State v. Belgarde, A08-101, 2009 WL 511140, at *8
(Minn. App. March 3, 2009); State v. Dukes, A04-2423, 2006 WL 278906, at *2-3 (Minn.
App. Feb. 7, 2006), review denied (Minn. May 16, 2006). While not precedential, we agree
that these cases have some persuasive valu e in relation to the prosecutorial misconduct
claim currently before us. Kruse v. Comm’r of Pub. Safety, 906 N.W.2d 554, 559 (Minn.
App. 2018) (“‘Unpublished opinions of the Court of Appeals are not precedential,’ but they
may be persuasive.” (quoting Minn. Stat. § 480A.08, subd. 3(c) (2016)). In particular,
these unpublished decisions further illustrate that the admissibility of expert testimony on
a defendant’s intent to sell controlled substa nces depends on the conclusiveness of the
opinions offered and the overall helpfulness of the testimony.

10
With these standards guiding our review , we now consider the prosecutor’s
questions to the law enforcement officers at Yang’s trial.
The prosecutor opened his case-in-chief with a direct examination of Officer Satele,
a patrol officer with three years of law-enfo rcement experience. After establishing the
basis for Officer Satele’s decision to stop Ya ng, the prosecutor questioned him about the
items found inside the SUV, including “a very large amount of white crystal rock.” The
following exchange then occurred:
PROSECUTOR: [I]n your training and experience, did the
amount of crystal -- is the amount of that crystal substance that
you located in that backpack, is that consistent with personal
consumption?
OFFICER SATELE: Absolutely not.

Following Officer Satele’s response, the prosec utor did not ask Officer Satele to explain
his response. He continued asking about items found during the search.
At the end of the direct examination, and after cataloguing all of the items found in
the SUV, the prosecutor asked Officer Satele for his opinion on Yang’s intent.
PROSECUTOR: Officer, in your training and experience,
when you’re dealing with narcotics activity -- you have that
experience. When you take a look at methamphetamine and
the amount set forth here in Exhi bit 22; you take a look at the
fake cash and the amount of cash that was located on the
defendant; when you ta ke a look at this firearm that was
located, what if anything -- and the presence of morphine in the
backpack, the smalle r bindle of methamphetamine in his
pocket -- what, if anything, doe s that suggest to you about
defendant’s intentions based on your training and experience?
OFFICER SATELE: Based on my training and experience, I
believe he was involved in the sale of controlled substances.

The prosecutor questioned the next witness, Officer Giese, in similar fashion.

11
PROSECUTOR: [I]n your training and experience here, your
twelve years in law enforcem ent, multiple cases involving
controlled substance, the discussion that we just had about drug
dealing, when you take a look at the bag, substantial bag of
crystal substance in front of you --
OFFICER GIESE: Um hum.
PROSECUTOR: -- you take a look at the firearm, take a look
at the language on the phone at the time, the amount of cash
that the defendant had on him, the other morphine in the
backpack, the spindl e [sic] of methamphetamine in the
defendant’s pocket; in your training and experience, what does
that all say, if anything, about what the defendant’s intentions
were?

Defense counsel objected on th e grounds of “[s]peculation, foundation,” and the district
court overruled the objection. Officer Giese began to discuss how the firearm was designed
for conceal and carry, and the district cour t prompted the prosecutor to rephrase the
question.
5
PROSECUTOR: Officer Giese, is the amount of crystal
substance in the bag right in front of you consistent with
personal consumption?
OFFICER GIESE: No, it is not.
PROSECUTOR: The evidence that we’ve talked about today,
is any of it, in your training and experience, indicia of drug
dealing activity?
OFFICER GIESE: Yes, they are all indicators of drug activity.

Following Officer Giese’s testimony, the prosecutor asked similar questions of three
more police officers. Those questions included whether the amount of methamphetamine

5 We note that the district court intervened once again durin g the prosecutor’s attempt to
rephrase the question and held a bench conference with the attorneys off the record. The
state concedes in its brief to this court that during the benc h conference the district court
“likely instructed the prosecutor that he shou ld rephrase his questions regarding evidence
of intent to sell.” The matters discussed during the bench conference are not in the record,
however, and we do not speculate about what transpired.

12
seized was “consistent with personal use” or “indicative of drug sale activity,” and whether
the evidence in totality is “i ndicative of drug sale activity.” The officers gave brief
responses, opining that the amount of drugs seized was indicative of sale and “[n]ot at all”
consistent with personal use, and that th e evidence as a whole in dicated that Yang was
involved in “drug sale activity.”
Yang argues that the prosecutor comm itted misconduct by eliciting five separate
expert opinions from five witnesses on an ul timate issue in the tr ial—whether Yang had
the intent to sell the methamphe tamine and marijuana. He contends that these expert
opinions “went well beyond providing the jury information . . . from which the jury could
decide for itself whether Yang intended to sell drugs.” Yang specifically points to Officer
Satele’s testimony: “I believe [Yang] was invol ved in the sale of controlled substances.”
Further, Yang maintains that the officers’ conc lusive legal opinions regarding his intent
were “plainly inadmissible” and were not helpful to the jury, citing Collard, 414 N.W.2d
733.
The state responds that the prosecutor did not knowingly elicit inadmissible
evidence because the officers’ testimony was admissible, or, at best, its admissibility was
“reasonably debatable.”6 According to the state, Collard allows a police officer to testify
that the evidence “indicate[s] an intent to sell rather than to retain for personal use.” 414

6 The state argues that Yang must show th at the prosecutor intentionally committed
misconduct by knowingly eliciting inadmissible evidence. But we apply plain-error
analysis regardless of the prosecutor’s intent. See Leutschaft, 759 N.W.2d at 418; see also
Ramey, 721 N.W.2d at 299-300. T hus, we reject the state’s contention that Yang must
show that the prosecutor intentionally committed misconduct in order to show plain error.

13
N.W.2d at 735. The state also observes th at the caselaw in this area is unclear, and
accordingly argues that there can be no plain error.7
We conclude that two of the prosecuto r’s questions were plainly improper because
they were calculated to elicit inadmissible expert opinion testimony about Yang’s intent to
sell. First, the prosecutor’s final questi on to Officer Satele—summarizing the evidence
and then inquiring “what, if anything, does that suggest to you about defendant’s intentions
based on your training and experience”—clearly called for a legal conclusion and invaded
the jury’s fact-finding role. Moreover, given th at the prosecutor established virtually no
foundation for Officer Satele’s opinion, Offi cer Satele’s response—“I believe he was
involved in the sale of cont rolled substances”—was not helpfu l to the jury. Second, for
the same reasons, the prosecutor’s question to Officer Giese—summarizing the evidence
at great length and then asking, “what does that all say, if anything, about what the
defendant’s intentions were”—was improper. Because the prosecutor’s questions to
Officer Satele and Officer Gi ese were designed to elicit in admissible expert testimony in
contravention of the Minnesota Rules of Evidence and caselaw, they constituted
misconduct.
The prosecutor’s follow-up qu estion to Officer Giese, a nd the other questions that
Yang brings to our attention, are not, in a nd of themselves, improper questions. These
questions inquired whether sp ecific evidence was “indica tive of” or “consistent with”

7 The state does not challenge Yang’s asserti on that the prosecutor’s questions sought the
officers’ expert opinions—opinions base d on their training and experience as law
enforcement officers.

14
personal use or with sale. Collard suggests that such questions are permissible. 414
N.W.2d at 736 (concluding that officer’s tes timony about the amount of drugs consistent
with personal use was not im proper). For that reason, we cannot conclude that the
prosecutor’s questions in that vein amounted to misconduct. But we do observe that where
there is no foundation for an o fficer’s opinion, as was the case with the majority of such
questions here, an officer’s opinion that the evidence shows a particular intent is not
helpful. And yet, because it is cloaked in expertise, this type of opinion may unfairly
persuade the jury. See Grecinger, 569 N.W.2d at 193. We therefore encourage prosecutors
to establish proper foundation for expert testimony touching on the ultimate issues to avoid
crossing the line into misconduct.8
Because we have concluded that two of the prosecutor’s questions were calculated
to elicit inadmissible expert-opinion testimony and constituted misconduct, we must next
consider the question of prejudice. As noted, under the modified plain-error analysis, the
burden shifts to the state to prove that Yang was not prejudiced. Ramey, 721 N.W.2d at
302. An error is “prejudicial” if there is a “reasonable likelihoo d that the error had a
significant effect on the jury’s verdict.” State v. Cao, 788 N.W.2d 710, 717 (Minn. 2010).
When examining a claim of prejudicial error, appellate courts focus on the strength of the

8 Although Yang frames his lega l complaint as prosecutorial misconduct, he also alleges
that some of the officers’ responses to questi ons were plain error. For example, he notes
that one officer, when asked whether 24 grams of methamphetamine was consistent with
selling drugs, responded, “Based on my traini ng and experience, absolutely.” We do not
find that these responses to appropriate questions amounted to plain error.

15
evidence, the pervasiveness of the error, and whether the defendant rebutted the improper
evidence. State v. Davis, 735 N.W.2d 674, 682 (Minn. 2007).
At the outset, we note that although the prosecutor asked two questions designed to
elicit inadmissible expert-opinion testimony, only one of those questions received the
intended response. The seco nd improper question—requestin g Officer Giese’s opinion
about whether Yang intended to sell methamphetamine—initially received a
nonresponsive answer, and ultimately went unanswered. The question, which was leading
and suggested the answer (yes), was nevertheless problematic and created an unnecessary
risk of influencing jurors. See Minn. R. Evid. 611(c) (“Le ading questions should not be
used on the direct examination of a witness except as may be necessary to develop the
witness’ testimony.”); State v. Ray , 659 N.W.2d 736, 744-45 (Minn. 2003) (discussing
impropriety of a prosecutor using leading questions to elicit inadmissible testimony). But
because there was no response, its capacity for prejudice was mitigated.
Against this backdrop, we consider the stre ngth of the state’s case. The evidence of
Yang’s guilt was overwhelming. Police found guns and large quantities of drugs in Yang’s
possession during two separate traffic stops—24 grams of methamphetamine, 42 grams of
marijuana, a mixture of 1.2 grams of morphine and codeine, loaded firearms, and firearm
magazines. Additionally, the state presented significant evidence connecting these items
to Yang, including cash and the small amount of metham phetamine found inside his
pockets, Yang’s official paperwork located in the same bag as the methamphetamine, and
evidence of Yang’s DNA on a firearm. Fina lly, there was ample circumstantial evidence
of Yang’s intent to sell the drugs, includin g large amounts of real and counterfeit cash,

16
small empty plastic bags, and a cellphone containing phot ographs of large amounts of
drugs, cash, and firearms, and a photograph of Yang’s driver’s license. That same
cellphone contained text messages implicating Yang in a marijuana sale.
Given this evidence, the state has satis fied its burden to establish that the
prosecutor’s improper questions, and Officer Satele’s inadmissible expert opinion that
Yang intended to sell the drugs, had no signifi cant effect on the jury’s verdicts. The
prosecutor did revisit the problematic testimony in closing argument, and Yang’s counsel
did little to rebut the expert testimony. N onetheless, the sheer volume of admissible
evidence establishing Yang’s guilt convinces us that the misconduct did not significantly
affect the jury’s verdicts. And because we find no prejudice, we ne ed not reach the final
prong in the plain-error analysis. See State v. Lilienthal , 889 N.W.2d 780 , 786 (Minn.
2017) (declining to address latter prongs of plain-error test when former prong failed).
II. Improper closing arguments

Yang’s second allegation of misconduct involves remarks made by the prosecutor
during his principal and rebutta l closing arguments. “Prosecutors have ‘considerable
latitude’ during closing arguments and are ‘not required to make a colorless argument.’”
State v. Patzold, 917 N.W.2d 798, 808 (Minn. App. 2018) (quoting State v. Williams, 586
N.W.2d 123, 127 (Minn. 1998)), review denied (Minn. Nov. 27, 2018). But a prosecutor’s
argument must adhere to the evidence presented during trial and any reasonable inferences
that may be drawn from the evidence. DeWald, 463 N.W.2d at 744.
Yang contends that the prosecutor committed misconduct by suggesting to the jury
that guilty verdicts were necessary to protect the community and by emphasizing the need

17
to hold Yang accountable. Prosecutors must avoid statements that are “calculated to
inflame the passions of the jury or prejudice the jury against the defendant.” Id. at 744-45.
It is misconduct for a prosecutor to suggest “that the jury represent[s] the people of the
community and that their verdict [will] determine what kind of conduct would be tolerated
on the streets.” State v. Threinen , 328 N.W.2d 154, 157 (Min n. 1983). Likewise, a
prosecutor commits misconduct by urging the ju ry to “protect their ‘loved ones’ and
Minnesota’s citizens from future harm.” State v. Hoppe , 641 N.W.2d 315, 320 (Minn.
App. 2002), review denied (Minn. May 14, 2002). Prosecutors similarly must not
overemphasize the notion of accountability. State v. Montjoy, 366 N.W.2d 103, 109 (Minn.
1985). A prosecutor cannot ask the jury to send a message or teach the defendant a lesson
by way of a guilty verdict. See State v. Salitros , 499 N.W.2d 815, 819 (Minn. 1993)
(explaining that juries do not “enforce the law or teach defendants lessons”).
Because defense counsel made no objectio n to the prosecutor’s closing argument,
we review this claim of prosecutorial misc onduct under the same modified plain-error
standard applied to Yang’s first claim. See Ramey, 721 N.W.2d at 302. We first consider
the alleged instances of misconduct.
The central theme of the prosecutor’s closing argument was public safety and
accountability; the prosecu tor addressed these concepts at the beginning a nd end of his
closing argument, and again on rebuttal. Yang argues that the follow ing portions of the
prosecutor’s principal closing argument were improper:
PROSECUTOR: Ladies and ge ntlemen, State versus Tou
Yang is about all of this, all of this. Overwhelming evidence
of drug sale, drug possession. Overwhelming. Evidence that

18
proves that the defendant has [no] regard. He doesn’t care. He
doesn’t care for public safety, other people that are out there
on the streets. Other families out there in Washington County.
He doesn’t care about the law. He hasn’t proved that because
after he was caught on August 26th, 2017 with
methamphetamine in his pocket, a larger amount was in arm’s
reach, a loaded firearm, morphine. Forty three days later he
gets caught again. More drugs. More loaded firearms. Drive
around Washington County. Methamphetamine. Morphine.
Marijuana. Loaded firearms. Fo lks, fortunately this case is
about accountability. Accountability for his actions.
. . . .
PROSECUTOR: It’s all there folk s. Every crime. The State
has proven it all beyond a reasonable doubt. I’m now asking
you to hold the defendant acc ountable for his actions because
in this case -- because in this case, the evidence proves that he
does whatever he wants. He needs to be held accountable.
Why? Based on the overwhelming -- overwhelming evidence
of drug dealing, drug possession. It’s all there. Hold him
accountable. Find him guilty of all five counts. Thank you.

And during rebuttal, the prosecutor argued:

PROSECUTOR: Folks, at the end it comes down to this. Is it
reasonable that he had no idea about the methamphetamine
right behind him when he’s got some in his pocket? No, it’s
not. It’s absolutely not. What ’s the evidence that’s clear?
Defendant has demonstrated he has no regard. The State is
asking you to do just the opposite . Care about this case. Do
the right thing, based on th e evidence wh ich prove the
defendant’s guilty be yond a reasonable do ubt. Find the
defendant guilty of all five counts. Thank you.

Yang argues that the prosecutor committed misconduct by suggesting that he does
not care about the surrounding co mmunity, implying that he is a public safety risk, and
then urging the jury to care and “do the right thing” by holding him accountable with guilty
verdicts. The state counters that the prosecutor merely linked the theme of accountability
to the “overwhelming evidence of drug dealing and drug possession.”

19
Although the prosecutor walked the line in pressing the jury to do the “right thing”
and hold Yang accountable, we do not believe these remarks amounted to misconduct. But
the prosecutor’s remarks that appealed to th e jury’s concern for th eir families and public
safety were improper under the caselaw. See Salitros, 499 N.W.2d at 819; Montjoy, 366
N.W.2d at 109; Threinen, 328 N.W.2d at 157; Hoppe, 641 N.W.2d at 320. We therefore
conclude that the prosecutor engaged in plainly erroneous misconduct.
The misconduct does not warrant reversal of Yang’s convictions, however. Again,
the evidence of Yang’s guilt was significant. And the prosecutor’s comments were not so
pervasive or egregious as to have unduly influenced the jury’s verdicts. The district court
instructed the jury on the state’s burden of proof and that the remarks of counsel were not
evidence. Given these circumstances, it is very unlikely that the jury would have reached
a different result without the misconduct. Because we find no prejudice, we do not reach
the final prong in the plain-error analysis. See Lilienthal, 889 N.W.2d at 786.
We conclude that there is no reasonable likelihood that the prosecutor’s misconduct
had a significant effect on the jury’s verdicts. Thus, we affirm Yang’s convictions.
Affirmed.