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This opinion is nonprecedential except as provided by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
A20-0047

State of Minnesota,
Respondent,

vs.

Larry Cregg,
Appellant.

Filed January 11, 2021
Affirmed
Reyes, Judge

Hennepin County District Court
File No. 27-CR-19-14378

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

Erik Nilsson, Minneapolis City Attorney, Zenaida Chico, Assistant City Attorney,
Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, M ichael McLaughlin, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Reyes, Presiding Judge; Connolly, Judge; and Gaïtas,
Judge.

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NONPRECEDENTIAL OPINION
REYES, Judge
Appellant argues on direct appeal that (1) insufficient evidence supports his
domestic-assault-fear conviction because he intended a contingent threat; (2) insufficient
evidence supports his disorderly conduct conviction because his threats di d not constitute
fighting words; and (3) he is entitled to a new trial because the pro secutor committed
misconduct by misstating witness testimony. We affirm.
FACTS
The following facts are based on the evidence and testimony presented at trial.
Appellant owns and lives in a house where his son, L.C., and L.C.’s girlfriend, L.P., rent a
room. After a prior rent dispute, appellant secured a temporary order for protection (OFP)
against L.C. and L.P. , who left the house. L.C. and L.P. lived in their vehicle while the
OFP was in place. By June 19, 2019, however, the di strict court had dismissed the OFP,
and L.C. and L.P. returned to appellant’s house.
Appellant, apparently not understanding that the district court dismissed the OFP,
called the police to have L.C. and L.P. removed from the house . Two police officers
arrived and told appellant that the OFP had been dismissed and that they lacked authority
to remove L.C. and L.P. from the property. Before leaving, the officers advised appellant
to use the formal eviction process to remove L.C. and L.P.
Minutes after the officers left, appellant “busted” into L.C. and L.P.’s room, threw
some of their belongings to the floor, and shoved L.C. “almost . . . across the room.”
Appellant threatened to have L.C. killed if they did not remove their belongings and vacate

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the room. L.C. tried to record appellant with his cell phone, but appellant knocked the
phone away. As appellant left the room, he said to L.C., “I’m gonna go get somebody right
now to come kill you.” L.C. and L.P. felt threatened by appellant’s behavio r and words,
so L.C. called 911.
The same two officers returned to appellant’s house approximately five minutes
after they had left. Appellant then made statements to the officers leading them to believe
that he might forcibly remove or harm L.C. The officers arrested appellant.
Respondent State of Minnesota charged appellant with misdemeanor domestic
assault-fear and disorderly conduct. A jury found him guilty of both charges. The district
court entered judgments of conviction of both charges and sentenced appellant to 90 days
in jail on the domestic -assault-fear conviction. It did not impose a sentence for the
disorderly conduct conviction. This appeal follows.
DECISION
I. Sufficient evidence supports appellant’s conviction of mis demeanor domestic
assault-fear.

Appellant argues that the state presented insufficient evidence to prove that he
intended to cause fear of immediate harm because the evidence supported the rational-
alternative hypothesis that appellant intended only contingent or future harm. We disagree.
Misdemeanor domestic assault -fear occurs when one commits an act against a
family or household member 1 “with intent to cause fear in another of immediate bodily

1 Neither party disputes that L.C. is appellant’s son, meeting the requirement of a family or
household member.

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harm or death.” Minn. Stat. § 609.2242, subd. 1(1) (2018). Assault-fear is a specific-intent
crime. State v. Fleck , 810 N.W.2d 303, 309 (Minn. 2012). The state generally proves
intent circumstantially “ from the defendant’s words and actions in light of the totality of
the circumstances.” State v. Cooper, 561 N.W.2d 175, 179 (Minn. 1997). Circumstantial
evidence is “evidence from which the factfinder can infer whether the facts in dispute
existed or did not exist.” State v. Harris, 895 N.W.2d 592, 599 (Minn. 2017) (quotation
omitted). In contrast, dire ct evidence is evidence “based on personal knowledge or
observation” that “if true, proves a fact without inference.” Id. (quotation omitted).
We apply a heightened standard of review , involving a two -step process, to a
conviction based on circumstantial evidence. Id. at 598 -601. First, we id entify the
circumstances proved, which are the subset of facts supporting the jury’s verdict. Id. at
600. We “assume that the jury believed the State’s witnesses an d disbelieved contrary
evidence.” State v. Hughes , 749 N.W.2d 307, 312 (Minn. 2008) (quotation omitted) .
Second, we determine whether the circumstances proved are consistent with a reasonable
inference that the accused is guilty and inconsistent with any rational hypothesis except
that of guilt. Harris, 895 N.W.2d at 601. We do not defer to the jury’s choice between
reasonable inferences. Id. “[A] possibilit[y] of innocence does not require reversal . . . so
long as the evidence taken as a whole makes [] theories [of innocence] seem unreasonable.”
State v. Taylor, 650 N.W.2d 190, 206 (Minn. 2002).
A. Circumstances proved
The circumstances proved include the following. Appellant called the police to
remove L.C. and L.P. from his house. The OFP against L.C. and L.P. had been dismissed,

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so when the of ficers arrived, they told appellant they could not remove L.C. and L.P.
Appellant appeared agitated and angry, talked loudly, and told the officers that he would
throw L.C. and L.P. out. Before leaving, the officers told appellant to go through the formal
eviction process to remove L.C. and L.P. from the house.
After the officers left, appellant “busted” into L.C. and L.P.’s room. He grabbed
and threw some of their belongings to the floor. L.C. tried to block appellant from entering
the room, but appellant shoved him. Appellant told L.C. that he would “get s omebody
right now to come kill you .” Both L.C. and L.P. felt threatened, alarmed, and afraid, so
L.C. called 911 to report these e vents. The officers returned just minutes after they had
left. Appellant continued to make threats and behave aggressively, and the officers arrested
him. L.C. provided internally consistent testimony about these events : his testimony at
trial matched his statements to the 911 dispatcher as well as his statements to the officers
on the date of the incident.
Appellant emphasizes his testimony that he did not threaten L.C. and that he
intended only to force L.C. to leave the house by the end of the day. B ut appellant’s
testimony conflicts with the jury’s verdict, so it is not a circumstance proved. Harris, 895
N.W.2d at 600. Appellant also argues that no evidence corroborates L.C.’s testimony of
appellant’s threat to “get somebody right now to come kill” L.C. But we assume the jury
believed the state’s evidence, including L.C.’s consistent statements and testimony.
Hughes, 749 N.W.2d at 312. Appellant also argues that the prosecutor’s misstatement of
witness testimony during closing argument impermissibly bolstered L.C.’s credibility.
However, the jury could have reasonably believed L.C.’s testimony even without the

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misstatement, and we do not reassess credibility on appeal. See Harris, 895 N.W.2d at
599-601. In sum, the circumstances proved support the inference that appellant intended
to cause fear of immediate bodily harm or death.
B. Rational hypotheses drawn from the circumstances proved

Appellant argues that the circumstances proved support the alternative hypothe sis
that he intended only contingent harm if L.C. did not leave by the end of the day. But even
if appellant initially meant only a contingent threat, he then “busted” into L.C. and L.P.’s
room, threw property, shoved L.C., and threatened to “get somebody right now to come
kill” L.C., supporting an inference that he subsequently intended to cause fear of immediate
harm. Appellant’s alternative hypothesis is not reasonable. Taylor, 650 N.W.2d at 206.
Appellant asserts that any threatened harm was not immediate, arguing that
“immediate” means “wit hout any contingency between.” But appellant’s aggressive
behavior as he entered L.C. and L.P.’s room and his threat to get somebody “right now”
showed that the possibility of bodily harm no longer depended on L.C. vacating the
premises. Appellant also relies on the Merriam-Webster Dictionary definition of
“immediate” as “accomplished without loss or interval of time” to argue that the threatened
harm must come “without delay” in order to be immediate. Merriam-Webster Dictionary
620 (11th ed. 2014). But not all definitions of “immediate” require instantaneous action.
Merriam-Webster also defines “immediate” as “ near to or related to the present.” Id. at
621. The common usage of “immediate” often anticipates some appreciable passage of
time more than an instant. See State v. Milliman, 802 N.W.2d 776, 779 (Minn. App. 2011)
(stating that we refer to common usage of words to identify plain meaning ); Great N. Ins.

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Co. v. Honeywell Int’l, 911 N.W.2d 510, 516 (Minn. 2018) (noting that we construe “words
and phrases . . . according to . . . their common and approved usage”). Here, the threatened
harm is immediate because it is near in time to the acts, including appellant’s behavior and
threat, causing fear of harm . The jury could reasonably infer that appellant intended to
cause fear of immediate harm. We therefore conclude that sufficient evidence supports
appellant’s misdemeanor domestic assault-fear conviction.
II. Sufficient evidence supports appellant’s conviction of disorderly conduct.

Appellant argues that , because his spoken threats did not constitute “fighting
words,” he did not engage in disorderly conduct. Appellant’s argument is misguided.
A person is guilty of disorderly conduct if, (1) while in a public or private place and
(2) knowing or having reasonable grounds to know the person’s conduct will “alarm, anger
or disturb others or provoke assault or breach of the peace,” the person (3) “engages in
offensive, obscene, abusive, boisterous, or noisy conduct or in offensive, obscene, or
abusive language tending reasonably to arouse alarm, anger, or resentment in others.”
Minn. Stat. § 609.72, subd. 1(3) (2018) (emphasis added). Appellant correctly states t hat
the content of his speech is not punishable as disorderly conduct unless it consists of
“fighting words.” In re Welfare of S.L.J. , 263 N.W.2d 412, 418 -19 (Minn. App. 1978).
But because the disorderly conduct statute is written in the disjunctive, either speech that
consists of “fighting words” or conduct that is offensive, obscene, abusive, boisterous, or
noisy may constitute disorderly conduct. See State v. Loge, 608 N.W.2d 152, 155 (Minn.
2000) (noting that “or” is generally disjunctive); In re Welfare of T.L.S., 713 N.W.2d 877,
881 (Minn. App. 2006) (noting that manner of speaking, independent of content, may

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trigger disorderly conduct statute); cf. S.L.J., 263 N.W.2d at 419, n.6 (noting that conduct
alone would have warranted disorderly conduct conviction in prior case).
Here, appellant “busted” into L.C. and L.P.’s room, threw their belongings, and
pushed L.C. Both officers testified that appellant appeared agitated and angry and talked
loudly. From this evidence, the jury could reasonably conclude that appellant’s conduct
was offensive, abusive, boisterous, and noisy. Because appellant does not challenge or
address the other elements of the disorderly conduct conviction, we conclude that the state
presented sufficient evidence to support the conviction.
III. The prosecutor’s misstatement of witness testimony did not affect appellant’s
substantial rights.

Appellant argues that the prosecutor misstated witness testimony, constituting
prosecutorial misconduct that entitles him to a new trial. We disagree.
At trial, L.P. testified that appellant “threatened that he’s gonna call people to come
and remove [ L.C.] from his house,” and that she fe lt this to be a “real threat.” The
prosecutor told the jury during closing arguments that L.P. said “she heard the defendant
threaten the life of [L.C.]” and that L.P. “ believed it to be a real threat on [L.C.’s] life.”
(Emphasis added).
Appellant did not object to the prosecutor’s misstatement of testimony at trial. We
review unobjected-to misconduct under a modified plain -error standard. State v. Ramey,
721 N.W.2d 294, 302 (Minn. 2006). Appellant must first show that the prosecutor’s
misstatement constitutes (1) error (2) that is plain. State v. Matthews , 779 N.W.2d 543,

9
551 (Minn. 2010) (citing Ramey, 721 N.W.2d at 300). Then, the burden shifts to the state
to prove (3) that the error did not affect appellant’s substantial rights. Id.
A. The misstatement constitutes plain error.
The state concedes that the prosecutor misstated L.P.’s testimony, but disputes
whether the misstatement constitutes plain error. “An error is plain if it [is] clear or
obvious,” such as when it “contraven [es] case law, a rule, or a standard of conduct.”
Ramey, 721 N.W.2d at 302. A prosecutor “should not make a statement of fact . . . that the
prosecutor does not reasonably believe to be true.” A.B.A., Crim. Just. Standards for the
Prosecution Function 3-1.4(b) (4 th ed. 2017). Here, t he prosecutor had no reasonable
ground to believe that L.P. testified that appellant threatened L.C.’s life. The prosecutor’s
misstatement violated a standard of conduct, and therefore constitutes plain error. 2
B. The error did not affect appellant’s substantial rights.
The state must show that there is no reasonable likelihood that the misconduct
significantly affected the jury’s verdict. Ramey, 721 N.W.2d at 302. In determining
whether the state has met its burden, we consider “(1) the strength of the evidence against
[appellant]; (2) the pervasiveness of the erroneous conduct; and (3) whether [appellant] had

2 Appellant characterizes the prosecutor’s misstatement as “misconduct” and asserts that
the misconduct was intentional. But “t here is an important distinction . . . between
prosecutorial misconduct and prosecutorial error.” State v. Leutschaft , 759 N.W.2d 414,
418 (Minn. App. 2009). Misconduct “implies a deliberate violation of a rule or practice,
or perhaps a grossly negligent transgression” while error “suggests merely a
mistake . . . [or] misstep of a type all trial lawyers make from time to time.” Id. While
there is no evidence here that the prosecutor’s actions were intentional, the standard of
review for prosecutorial mi sconduct is “equally applicable to prosecutorial error,” so for
clarity and consistency we use the term “prosecutorial misconduct.” Id.

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an opportunity to rebut any improper remarks.” State v. Peltier, 874 N.W.2d 792, 806-807
(Minn. 2016).
1. Strength of the evidence
If the state’s evidence is strong, it can overcome the prejudice caused by
misconduct. See State v. Huber, 877 N.W.2d 519, 527 (Minn. 2016) (analyzing plain error
in jury instructions). Here, the record contains ample evidence supporting appellant’s
convictions. Both officers testif ied that appellant made threats, appeared agitated, and
talked loudly. Both L.C. and L.P. testified that appellant “busted” into their room, threw
their belongings, shoved L.C., and yelled threats. As discussed above, L.C. provided
internally consistent testimony. Finally, while appellant is correct that L.P. and the officers
did not corroborate L.C.’s testimony that appellant threatened to “get somebody right now
to come kill” L.C., they corroborated L.C.’s other testimony about additional threats and
appellant’s aggressive behavior. We therefore conclude that strong evi dence supports
appellant’s convictions.
2. Pervasiveness of the misconduct
Appellant makes no argument on this factor, but the state argues that the misconduct
was not pervasive. We agree with the state.
In determining the pervasiveness of prosecutorial misconduct, courts look to factors
such as whether the misconduct is isolated, short or long in duration, and counterbalanced
by instruction from the district court. See, e.g., State v. Mayhorn , 720 N.W.2d 776, 7 91
(Minn. 2006) (noting several types of mi sconduct in single trial) ; Matthews, 779 N.W.2d
at 552-53 (noting short duration of misconduct and district court’s mitigating instructions).

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Here, appellant alleges only one instance and type of prosecutorial misconduct:
misstatement of testimony in closing argument. The prosecutor’s misstatement consists of
three lines of an eight -page closing argument. The prosecutor did not use inflammatory
language or draw attention to the misstated testimony. When discussing evidence that
corroborated L.C.’s testimony in closing argument, the prosecutor did not mention L.P’s
testimony. Further, the district court instructed the jury that statements of attorneys are not
evidence and that they should weigh witness credibility based on their own experience,
judgment, and common sense. As a result, we conclude that the misconduct was not
pervasive.
3. Whether appellant had an opportunity to rebut the misconduct
Neither party addresses this factor on appeal. Appellant could have objected to or
rebutted the misstatement in his closing argument, but he did neither. See Peltier, 874
N.W.2d at 806 ( concluding that prosecutorial misconduct did not affect appellant’s
substantial rights in part because defendant had ample opportunity to rebut erroneous
statements in closing arguments but failed to do so).
In sum , we conclude that there is no reasonable likelihood that the prosecutor’s
misstatement of witness testimony significantly affected the jury’s verdict . We therefore
affirm appellant’s convictions of domestic assault-fear and disorderly conduct.
Affirmed.