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This opinion will be unpublished and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
A20-0039

State of Minnesota,
Respondent,

vs.

Michael-Paul Aaron Smith,
Appellant.

Filed December 14, 2020
Affirmed
Gaïtas, Judge

Beltrami County District Court
File No. 04-CR-19-1942

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

David L. Hanson, Beltrami County Attorney, Bemidji, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Jessica Merz Godes, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Connolly, Pr esiding Judge; Reyes, Judge; and Gaïtas,
Judge.
U N P U B L I S H E D O P I N I O N
GAÏTAS, Judge
Appellant Michael-Paul Aaron Smith cha llenges his felony fifth-degree assault
conviction and seeks a new trial, arguing that the district c ourt abused its discretion in
allowing a witness for the state to provide opinion testimony. Specifically, Smith alleges

2
that the district court erred in allowing a police officer, who was also an eyewitness to the
charged offense, to testify th at Smith’s conduct appeared to be intentional, when Smith’s
intent was the ultimate issue to be decided by the jury. The record sh ows, however, that
the disputed testimony was rationally based on the officer’s own perceptions as a fact
witness. We therefore concl ude that the district court di d not abuse its discretion in
overruling Smith’s objection to the officer’s testimony. And, even if the testimony was
erroneously admitted, any error was harmless given the strength of the other trial evidence.
We affirm.
FACTS
On June 27, 2019, at around 9:30 p.m. Bemidji Police Officers Joseph Lorenzi and
G.Z. responded to an assault call at a residence. The officers encountered and detained two
males, one of whom was identified as Smith. Both men had minor injuries. Lorenzi noted
that Smith appeared “highly intoxicated.” Medical professionals soon arrived and took
Smith to the hospital. The officers stayed behind and continued to investigate the alleged
assault, which purportedly involved Smith and the other man.
A few hours later, the officer s went to the hospital to arrest Smith. They found him
lying in a hospital bed, asleep and snoring. When hospital staff cleared Smith for release,
the officers woke him and told him he was under arrest for assault. At that point, Smith’s
“demeanor changed”; he grew confrontational. He refused to get up, keeping his eyes
closed, but no longer snoring. Given his relu ctance, the officers wh eeled Smith to their
squad car on a gurney.

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At the squad car, both officers tried to gain Smith’s cooperation. They gave several
loud commands for him to get up from the gurne y. When that did not work, they tried
shaking his body. Smith did not respond. The officers believed Smith was feigning sleep
and purposefully ignoring their requests. G.Z. eventually tried to lift Smith’s feet from the
gurney. Smith began kicking his legs. While kicking, Smith pulled one leg inward toward
his chest and released a kick to G.Z.’s ches t, causing G.Z. to stumble backwards and lose
his breath. Smith continued kicking and threw his hands in G.Z.’s direction. The officers
tried to physically restrain him, and ordered him to stop struggling, warning that they would
use their stun guns.
Suddenly, Smith acted startled, yelled prof anities, and said “stop.” He asked the
officers what had just happened . Smith then stood up and the officers directed him into
the backseat of the squad car. The officers closed the car door behind him. Smith banged
his head and hands against the car window. The officers drove Smith to the jail.
Following this incident, th e state charged Smith with two counts of felony fifth-
degree assault, Minn. Stat. § 609.224, subd. 4(b) (2018),1 one for the initial assault at the
residence (count one), and the other for the in cident involving G.Z. at the hospital (count
two).2 Smith pleaded not guilty and demanded a speedy jury trial.

1 We note that Smith was charged with a felony under subdivision 4(b), rather than with a
misdemeanor under subdivision 1 or a gross misdemeanor under subdivision 2(b), because
he had two or more prior convict ions for assaultive offenses. See Minn. Stat. § 609.224,
subds.1, 2(b), 4(b) (2018).

2 The original complaint charged Smith with felony fifth-degree assault (count one) and
gross misdemeanor fourth-degree assault on a peace officer (count two), but the state
amended count two a few months later to felony fifth-degree assault on a peace officer.

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On day one of trial, the state dismissed count one due to witness unavailability. The
trial proceeded on count two—the alleged assault against G.Z. at the hospital. The state’s
theory was that Smith intentionally kicked G.Z. while on the gurney. During the trial, the
prosecutor called both arresting officers as witnesses and published footage from their
body-worn cameras for the jury. As a defe nse, Smith claimed that his actions were
involuntary because he was sleeping immediat ely before the alleged assault and reacted
reflexively when awakened. Smith testified and offered one exhibit, a photograph showing
the abrasions to his face before he was treated at the hospital.
The jury found Smith guilty of fifth-degr ee assault. Following the verdict, the
district court sentenced Smith to 36 months in prison. Smith appeals.
D E C I S I O N
Smith argues that his conv iction should be reversed because the district court
allowed inadmissible testimony that improperly prejudiced the jury. We will only reverse
a district court’s evidentiary ruling where the district court abused its discretion. Moore v.
State, 945 N.W.2d 421, 428 (Minn. App. 2020), review denied (Minn. Aug. 11, 2020). “A
district court abuses its discretion when its de cision is based on an erroneous view of the
law or is against logic and the facts in the record.” State v. Hallmark, 927 N.W.2d 281,
291 (Minn. 2019) (quota tion omitted). Even where the dist rict court mistakenly admits
improper testimony, the error “is harmless if there is no reasonable possibility that the
wrongfully admitted evidence signifi cantly affected the verdict.” State v. Swinger , 800
N.W.2d 833, 838 (Minn. App. 2011) (quotation omitted), review denied (Minn. Sept. 28,
2011).

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Smith’s argument on appeal is based on the following exchange, which happened
when the prosecutor questioned Lorenzi about the video from his body-worn camera:
PROSECUTOR: Now, Officer Lo renzi, I’m just pausing the
video at this point to get y our impression of what we’re
observing. Um, what did you observe happen just then?
LORENZI: Um, well I observed, uh, Officer [G.Z.] moving
Mr. Smith’s legs over. And if you notice, he brought his left
leg back. In my opinion, it was to have a better –
DEFENSE COUNSEL: Objection. Officer is limited to the
facts he saw not his opinion.
THE COURT: Overruled.
LORENZI: Um, I believe, Mr. Smith was moving his leg back
to have a better angle to strike Officer [G.Z.].

Moments later Lorenzi testified, “I believe [S mith] was trying to hit [G.Z.].” There were
no other objections to this line of testimony.
Smith contends that Lorenz i “essentially told the jury that Smith intentionally
applied force to Officer [G.Z.] without his consent, the ment al state required to convict
Smith of assault-harm.” He argues that th is particular testimony was not allowed under
relevant caselaw and significantly influenced the jury’s verdict. We disagree.
I. The district court did not abuse its discretion in allowing the testimony.

First, we conclude that the district c ourt did not abuse its discretion in overruling
defense counsel’s objection and allowing Lorenzi’s answer. Although a police officer may
sometimes testify as an expert witness, Lore nzi did not. Instead, as an eyewitness to the
incident underlying Smith’s charge, he testified as a lay witness. Thus, Minnesota Rule of
Evidence 701, which addresses the opinions of lay witnesses, guides our analysis.
Under rule 701, a lay witne ss may testify “in the form of opinions or inferences” so
long as the subject matter is (a) rationally based on their perception, (b) helpful to

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understanding the testimony or a fa ct in issue, and (c) not base d on expert or specialized
knowledge. Minn. R. Evid. 701. Opinion te stimony from either a layperson or an expert
has limits, however. For exam ple, witness opinions on the ultimate issues in a case are
often unhelpful and thus inadmissible. See, e.g., State v. Provost, 490 N.W.2d 93, 101-02
(Minn. 1992) (rejecting expert psychiatric opinion for embracing issue of criminal intent);
State v. DeWald, 463 N.W.2d 741, 744 (Minn. 1990) (explaining that testimony should not
embrace “legal conclusions or terms of art”). At the same time, “[ t]estimony in the form
of an opinion or inference otherwise admiss ible is not objectionable because it embraces
an ultimate issue to be decided by the trier of fact[,]” which in this case was the jury. Minn.
R. Evid. 704. Even a lay witness
will not be precluded from givi ng an opinion merely because
the opinion embraces an ultimate fact issue to be determined
by the jury. If the witness is qualified and the opinion would
be helpful to or assist the jury as provided in Rules 701-703,
the opinion testimony should be permitted.

Id., 1977 comm. cmt.
Smith argues that Lorenzi’s “opinion” exceeded the limits imposed by rules 701 and
704. He asserts that Lorenzi improperly gave the jury his opinion on the ultimate issue in
the case, Smith’s state of mind—or mens rea—when he kicked G.Z. According to Smith,
caselaw, including State v. Chambers, 507 N.W.2d 237, 239 (Minn. 1993); DeWald, 463
N.W.2d at 744; and State v. Hogetvedt, 623 N.W.2d 909, 915 (Minn. App. 2001), review
denied (Minn. May 29, 2001), prohibits such testimony.
The caselaw does not support Smith’s argum ent, however. “While it is improper to
testify as to the subjective intention or knowledge of another, it is proper for the prosecutor

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to inquire of the [witness] wh at was going through his mind when the actions occurred.”
State v. Witucki, 420 N.W.2d 217, 222 (Minn. App. 1988) (emphasis added), review denied
(Minn. Apr. 15, 1988). “A lay witness’s opinion or inference testimony may help the jury
by illustrating the witness’s pe rception in a way that the me re recitation of objective
observations cannot.” State v. Pak, 787 N.W.2d 623, 629 (Minn. App. 2010). For these
reasons, a witness’s explanation of their perceived experience—meaning what that witness
heard, saw, felt, and believed at a particular time—is distinguishable from that of a witness
who offers a retrospective opinion on events they did not experience firsthand. Compare
Chambers, 507 N.W.2d at 238-39 (concluding that expert’s opinion that victim’s stab
wounds showed defendant’s intent to kill was inadmissible), and Hogetvedt, 623 N.W.2d
at 915 (reversing conviction where officer, who di d not witness altercation, testified that
accused “assaulted” the victim), with State v. Patzold, 917 N.W.2d 798, 808 (Minn. App.
2018) (holding there was no e rror in officers’ lay opinions th at assault occurred because
officer testimony was rationally based on perceptions in investigating crime scene), review
denied (Minn. Nov. 27, 2018), Pak, 787 N.W.2d at 629 (deter mining no error occurred
where deputy offered opinion that, based on his own on-scene observations, alleged victim
“had been assaulted”), State v. Washington , 725 N.W.2d 125, 137 (Minn. App. 2006)
(holding 911 operator’s lay opinion that caller was being assaulted was admissible because
it complied with rule 701), review denied (Minn. Mar. 20, 2007), and Witucki, 420 N.W.2d
at 222.
Here, while viewing his body-worn camera video, Lorenzi explained to the jury
what he experienced during his interactions with Smith, including what he believed based

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on his perceptions. He “testified only as to what meaning the action conveyed to him under
the circumstances.” Witucki, 420 N.W.2d at 222. This te stimony was within the bounds
established by caselaw and the rules of evidence, and was not improper. See id. (stating
that testimony interpreting what the witness perceived was properly admitted where it was
“not based on something beyond [the witness’s] own knowledge”). Lorenzi’s initial choice
of words preceding the objecti on—“in my opinion”—does not change our analysis. His
opinion did not concern Smith’s state of mind. Rather, it was his interpretation of his own
observations, which was admissible evidence.
The challenged testimony was directly and rationally based on Lorenzi’s own
perception of the struggle with Smith at th e hospital; it was not an improper opinion on
whether Smith had the requisite intent to commit an assault. The district court did not
abuse its discretion in allowing the testimony.
II. Even if presumed erro neous, the challenged evid ence did not significantly
affect the jury’s verdict.

Although we conclude that the district court did not err in allowing Lorenzi’s
testimony, we also note that the testimony does not warrant reversal of Smith’s conviction,
even if improper. “Under the harmless erro r standard, a defendant who alleges an error
that does not implicate a cons titutional right must prove ther e is a reasonable possibility
that the wrongfully adm itted evidence significantly a ffected the verdict.” State v. Smith,
940 N.W.2d 497, 505 (Minn. 2020) (quotation omitted). In considering the effect of
erroneously admitted evidence , we examine “the manner in which the evidence was
presented, whether it was highly persuasive, whether it was used in closing argument, and

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whether the defense eff ectively countered it.” Townsend v. State, 646 N.W.2d 218, 223
(Minn. 2002).
Smith argues that Lorenzi’s testimony unde rcut his defense, which was that the kick
to G.Z.’s chest was not intent ional but was a “reflex reaction[]” to being awakened. He
also notes that the prosecut or exacerbated the district c ourt’s error in allowing the
testimony by emphasizing it during closing ar gument. The state, on the other hand,
contends that “there is ample other evidence of [Smith]’s intent to assault Officer [G.Z.]”
and any error was therefore harmless.
We agree with the state. The disputed portion of Lorenzi’s testimony was fleeting
and its persuasive value was sparse compared to the other trial evid ence that supports
Smith’s conviction, including Lorenzi’s undis puted testimony, G.Z.’s testimony, and the
video evidence.
Smith observes that the prosecutor esse ntially repeated Lorenzi’s testimony in
closing argument when he stated: “In the video you can, actually, see Mr. Smith move his
leg backward to get a better angle to kick O fficer [G.Z.] with.” But the prosecutor’s
argument was a fair inferenc e from the video evidence. See State v. Peltier , 874 N.W.2d
792, 804 (Minn. 2016) (“[T]he State may present all legitimate arguments on the evidence
and all proper inferences that can be draw n from that evid ence in its closing argument.”
(quotation omitted)). And in discussing this inference, the prosecutor did not reference
Lorenzi’s testimony.

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Smith also had ample opportunity to rebut Lorenzi’s testimony. He elected to testify
and present evidence at the tr ial. After assessing witness credibility and weighing the
evidence, the jury ultimately rejected Smith’s defense.
We conclude that Smith is not entitled to a new trial. Because the district court did
not abuse its discretion and there is no reasonable possibility that the challenged evidence
substantially influenced the jury’s verdict, we affirm.
Affirmed.