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This opinion is nonprecedential except as provided by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
A20-0107

State of Minnesota,
Respondent,

vs.

Anthony Mitchell Spry,
Appellant.

Filed February 8, 2021
Affirmed
Bratvold, Judge

Hennepin County District Court
File No. 27-CR-18-11092

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

Michael O. Freeman, Hennepin County Attorney, Minneapolis, Minnesota; and

James R. Rowader, Jr. , Minneapolis City Attorney, Rebekah M. Murphy, Assistant City
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Christopher L. Mishek, St. Paul,
Minnesota (for appellant)

Considered and decided by Reilly, Presiding Judge; Worke, Judge; and Bratvold ,
Judge.
NONPRECEDENTIAL OPINION
BRATVOLD, Judge
Appellant seeks review of his final judgments of conviction, entered after a jury
found him guilty of interfering with the operation of a transit vehicle, Minn. Stat.
2
§ 609.855, subd. 2(a) (2016), and trespassing on “posted” private property, Minneapolis ,
Minn., Code of Ordinances (MCO) § 385.380, subd. (b)(3) (2017). Appellant argues that
(1) the record evidence is insufficient to support his conviction of interfering with the
operation of a transit vehicle; (2) the record evidence is insufficient to support his
conviction of trespass because the notice was not “posted” ; and (3) during closing
argument, the prosecuting attorney committed misconduct by impermissibly vouching for
the officers who testified. Because the evidence is sufficient to support appellant’s
convictions for both offenses , and because appellant was not prejudiced by any alleged
error in the prosecuting attorney’s closing argument, we affirm.
FACTS
These facts summarize the testimony and videotaped evidence received during trial.
On April 13, 2018, around 2:00 p.m., appellant Anthony Mitchell Spry was at the Hiawatha
Avenue and Lake Street light-rail transit station in Minneapolis. Spry walked to the north
end of the stat ion platform and stepped off the platform and onto the tracks. Spry began
walking north on the southbound tracks, which travelled along an overpass or bridge over
a city street. Spry continued walking on the tracks toward 26th street, about the distance of
four blocks from the station . Metro Transit officers arrested Spry when he reached 26th
street.
The state charged Spry with two counts —t respassing on a critica l public-service
facility, Minn. Stat. § 609.6055, subd. 2(a)(3) (2016) (count one), and interfering with the
operation of a transit vehicle (count two). The state later amended a tab-charge of trespass
by entering a poste d private property (count three). On the first day of trial, the state
3
dismissed count one because, as the prosecuting attorney stated , the state “cannot prove
beyond a reasonable doubt that the lettering on the no trespassing signs” was at least two
inches high, as required by the charging statute.
The state called three Metro Transit Police officers at trial. Officer Lor testified that
on April 13, she responded to a dispatch for a “priority-one rail trespass” near the light-rail
station on Lake Street, where “a party was observed walki ng northbound from the
platform” on the southbound tracks. Lor testified that a “priority -one” event means that
there is a public safety concern, so responding officers activate lights and sirens. Lor
explained that a person in a restricted area threatens public safety because light-rail trains
travel a t about 45 mph. Lor also testified that the light-rail track alarms trigger
automatically—a sensor on the platform alerts the dispatch center when an individual
rather than a train passes by. As Lor arrived a t 24th Street, she saw Spry walking on the
tracks and Lor helped other officers arrest Spry. Lor identified Spry in the courtroom.
During Lor’s testimony, the state played two videos, which were received into
evidence. First, the video from Lor’s squad car (first squad video) showed that, as officers
seized Spry, a light-rail train slowed to a stop and remained stopped for at least 20 minutes.
Second, the video from the Lake Street Station surveillance camera (surveillance video)
showed a man walking to the end of the platform, pausing, and then moving a barrier to
leave the platfo rm and walk alongside the light -rail tracks. During Lor’s testimony, she
identified the man in the surveillance video as Spry. Lor also testified that the platform sign
in the s econd video said “no trespassing.” Lor testified that this incident suspended
light-rail travel for 27 minutes.
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Officer Wright testified that he also responded to the trespass dispatch, echoing
Lor’s testimony. During Wright’s testimony, the state played a third video, taken from
Wright’s squad car after Spry was arrested (second squad video). In the second squad
video, Spry says he walked on the tracks because he wanted to “meditate” and “not be near
anyone.”
Lieutenant Dietz investigated the incident. D ietz testified that the Lake Street
platform had “no trespassing” signs on both the northbound and southbound sides. Th e
state showed Dietz two photographs created from the surveillance video , one of which
depicted Spry walking in the direction of the northbound “no trespassing” sign —though
the photograph is blurred. The second photograph showed the southbound “no trespassing”
sign. Both photos were received into evidence. Dietz testified that the southbound sign in
the photo is “the same” as the northbound sign on the platform. After the incident, the signs
were replaced with “more vibrant” signs, according to Dietz, but the previous signs were
“clear” on the date of the incident.
Spry maintained his right to remain silent and did not testify. The defense moved
for judgment of acquittal, which the district court denied. The jury found Spry guilty on
both counts. The district court adjudicated Spry guilty on both counts, and sentenced Spry
on count two to 90 days in jail, with credit for 90 days.
Spry appeals.
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DECISION
I. Sufficient evidence supports Spry’s conviction of interfering with the operation
of a transit vehicle.

When addressing a sufficiency -of-the-evidence challenge, we undertake “a
painstaking analysis of the record to determine whether the evidence, when viewed in a
light most favorable to the conviction, was sufficient to permit the jurors to reach the
verdict which they did.” State v. Webb , 440 N.W.2d 426, 430 (Minn. 1989). We assume
that “the jury believed the state’s witnesses and disbelieved any evidence to the contrary.”
State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989). “[I]f the jury, acting with due regard
for the presumption of innocence” and the need for proof beyond a reasonable doubt, could
reasonably conclude that the defendant was guilty of the offense, then we affirm the
conviction. Bernhardt v. State, 684 N.W.2d 465, 476-77 (Minn. 2004) (quotation omitted).
In reviewing the sufficiency of the evidence, we defer to the jury’s credibility
determinations and weighing of the presented evidence. State v. Hanson, 800 N.W.2d 618,
622 (Minn. 2011).
Spry was convicted under Minn. Stat. § 609.855, subd. 2(a), which requires the state
to prove beyond a reasonable doubt that the defendant “intentionally commit[ted] an act
that interferes with or obstructs, or tends to interfere with or obstruct, the operation of a
transit veh icle.” Spry argues that the evidence cannot support his conviction for two
reasons.
First, Spry contends that the video evidence showed a light-rail train freely moving
when he was on the tracks and, because officers quickly removed him from the tracks, the
6
state failed to prove that he interfered with the operation of a transit vehicle. Spry relies on
the surveillance video and Lor’s testimony that the trains did not stop. Spry is correct that
the surveillance video shows a southbound light-rail train moving as he walks alongside
the track. And Lor testified , while watching the surveillance video, that the trains “were
not stopped yet.” Lor also testified that the trains were stopped for 27 minutes.
We are not persuaded by Spry’s argument. The first squad video, which recorded
events at about the time Spry was arrested , shows a different train slowing to a stop and
remaining stopped for at least 20 minutes. Th us, the surveillance video does not conflict
with the first squad video, as the videos depict different times and different trains. Even if
we assume that the two videos conflict, on appellate review, we view the evidence in a
light favorable to the jury’s verdict and do not second-guess the jury’s role in weighing the
evidence. See Webb, 440 N.W.2d at 430.
Second, Spry argues that Lor’s testimony about the 27-minute delay cannot support
the conviction. Lor agreed on cross-examination that she had no personal knowledge about
how long train movement was suspended. Lor explained that she relied on information
relayed to her by the rail transit-control center. Spry did not object to Lor’s lack of personal
knowledge during trial, but argues th at this court cannot rel y on the testimony about the
27-minute delay.
We disagree. Spry is mistaken about what the state needed to prove. The statute does
not require proof of the length of delay, only that Spry’s actions “tend[ed] to interfere”
with operation of a transit vehicle. Minn. Stat. § 609.855, subd. 2(a). Also, Spry’s argument
relies on a hearsay analysis of Lor’s testimony and plain-error review. We generally decline
7
to review hearsay issues on plain-error review because, had the objection been made during
trial, the state would have had the opportunity to lay more foundation or establish
admissibility under a hearsay exception. See State v. Manthey , 711 N.W.2d 498, 504
(Minn. 2006) (noting that unobjected -to hearsay is particularly difficul t to deem
inadmissible on plain-error review due to the many hearsay exceptions and the lack of a
clear ruling on the issue at trial). Finally, even if we disrega rd Lor’s testimony about the
27-minute delay, the first squad video shows that a train was stopped for at least 20 minutes.
Thus, we conclude that the evidence i s sufficient to support Spry’s conviction of
interfering with the operation of a transit vehicle.
II. Sufficient evidence supports Spry’s conviction of trespass.

Spry was also convicted of trespassing on the property of another under MCO
§ 385.380, subd. (b)(3), which requires the s tate to prove beyond a reasonable doubt that
the defendant “enter[ed] o r remain[ed] upon or within the . . . posted property of
another . . . without claim of right or consent of a lawful possessor or his or her agent.”
The ordinance does not define the word “posted.” After opening statements, the
parties agreed that the district court did not need to instruct the jury on the meaning of
“posted property,” and the district court stated that “posted property has [a] common
ordinary meaning.” Spry contends that the state, though, failed to offer evidence that the
light-rail property was posted. Spry argues that the state’s proof is insufficient because
“[t]he lettering on the sign in question was not discernable in the surveillance video or the
video still shots.”
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Spry’s argument asks us, in part, to interpret the ordinance, an issue we review de
novo. State v. Vasko, 889 N.W.2d 551, 556 (Minn. 2017). Our purpose in interpreting an
ordinance is the same as interpreting a statute—“to ascertain the intent of the Legislature.”
Id. When an ordinance is unambiguous, w e give words and phrases “their plain and
ordinary meaning.” Id. (quotation omitted). Spry does not argue that the Minneapolis
ordinance is ambiguous and we see no ambiguity.
First, Spry agrees that the ordinary meaning of posted applies and initially turns to
dictionary definitions. We agree that it may help to “look to dictionary definitions to
determine a term’s plain and ordinary meaning,” but we also keep in mind that “the plain
meaning of a statutory phrase is also dependent upon context.” State v. Gibson ,
945 N.W.2d 855, 858 (Minn. 2020). Spry relies on on line dictionaries that define posted
as “[t]o put up signs on (property) warning against trespassing.” This is the same as the
definition of posted in a recent printed edition: “ [t]o put up signs on (property) warning
against trespassing.” The American Heritage Dictionary of the English Language 1376
(5th ed. 2011).
Expanding his argument , Spry argues that posted means “conspicuous” and
“readable.” Spry relies on Minn. Stat. §§ 609.605, subd. 1(5), .6055, subd. 3 (2018), both
of which define posted for the trespass statutes .1 Minn. Stat. § 609.605, subd. 3, for
example, provides that the sign stating “no trespassing” must “display letters at least two
inches high” and be “posted in a conspicuous place.”

1 As discussed above, the state charged Spry with violating a subdivision of section
609.6055, but dismissed the charge on the first day of trial.
9
We disagree with Spry’s interpretation of posted for MCO § 385.380, subd. (b)(3).
Neither conspicuous nor readable is found in the ordinance or in the common meaning of
posted. In effect, Spry asks us to add words from the state trespass statute and apply them
to an unambiguous city ordinance . We decline to do so. County of Dakota v. Cameron ,
839 N.W.2d 700, 709 (Minn. 2013) (courts cannot “add words or phrases to an
unambiguous statute .”). We note, however, that t he jury was free to consider Spry’s
argument that the sign was not readable based on the vi deo or photos. But we do not
re-weigh evidence on appeal. See State v. Pratt, 813 N.W.2d 868, 874 (Minn. 2012) (“The
trier of fact is in the best position to determine credibility and weigh the evidence.”).
Second, Spry argues that Dietz testified that the “no trespassing” sign was “faded”
and was replaced soon after the incident. Although that is an accurate description of Dietz’s
testimony, Spry fails to view the evidence in a light favorable to the jury verdict. See Webb,
440 N.W.2d at 430. Dietz also testified that the part of the sign that was faded was the red
color stating “danger,” not the black and white lettering that stated “no trespassing.”
Thus, we conclude that the evidence i s sufficient to support Spry’s conviction of
trespass.
III. The state has shown that any error in closing argument did not substantially
affect the jury’s verdict.

Spry argues that he is entitled to a new trial because the prosecuting attorney
committed misconduct during closing arguments, which affected Spry’s substantial rights.
Because our standard of review depends on whether an objection was made , we first
10
observe that Spry’s counsel did not object during the state’s closing argument. Caselaw
sets out the steps for a correct analysis.
When a defendant alleges unobjected -to prosecutorial
misconduct, we apply a modified plain -error standard that
requires the defendant to show an error was made that was
plain. If the defendant satisfies this burden, the burden shifts to
the [s]tate to establish that t he un-objected to misconduct did
not affect substantial rights.

State v. Waiters, 929 N.W.2d 895, 901 (Minn. 2019) (quotation omitted). An error is plain
if it is “clear or obvious.” Id. (quoting State v. Sanchez -Sanchez, 879 N.W.2d 324, 330
(Minn. 2016)). Thus, Spry must establish plain error under the modified standard, after
which the burden shifts to the state to show that Spry’s substantial rights were unaffected.
See id.
Spry contends the prosecuting attorney’s closing arguments included three instances
of improper vouching. During closing arguments, a prosecuting attorney may “analyze the
evidence and argue that particular witnesses were or were not credible.” State v. Wright ,
719 N.W.2d 910, 918-19 (Minn. 2006). A prosecuting attorney’s argument about witness
credibility becomes misconduct when the attorney vouches for a witness by an argument
that “implies a guarantee of a witness’s truthfulness, refers to facts outside the record, or
expresses a personal opinion as to a witness’s credibility.” State v. Smith, 825 N.W.2d 131,
139 (Minn. 2012) (quotation omitted).
Spry identifies three instances: (1) The prosecuting attorney’s closing argument
referred to the Metro Transit officers who testified as “seasoned,” and argued they “seemed
honest and prepared.” (2) On rebuttal, the prosecuting attorney argued that the officers
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were “qualified witnesses,” and (3) referred to Lor’s testimony as “unimpeached.” We
consider each instance in turn.
First, the supreme court has held that a pr osecuting attorney’s argument that a
witness is “very believable” is vouching and plain error. State v. Swanson , 707 N.W.2d
645, 656 (Minn. 2006). Here, the prosecuting attorney’s argument that the transit officers
were “honest” is like saying a witness is “very believable.” For that reason, this argument
is vouching and plain error.
Second, Spry argues that the prosecuting attorney committed further misconduct
during rebuttal by arguing the officers were “qualified” and “seasoned.” “Qualified” is one
adjective to describe the officers’ testimony about their education and experience. The
same can be said of the prosecuting attorney’s argument that the officers were “seasoned.”
And a witness’s education and experien ce are relevant to credibility. S ee 10 Minnesota
Practice CRIMJIG 3.12 ( 2019) (listing experience as one consideration in determining
witness credibility); State v. Larson, 281 N.W.2d 481, 485 (Minn. 1979) (directing that
criminal juries be instructed on appropriate considerations for det ermining witness
credibility). We conclude that the prosecuting attorney’s argument that the officers were
“qualified” or “seasoned” is an argument about the ir experience and not improper
vouching.
Third, Spry argues that the prosecuting attorney’s argument during rebuttal that
Lor’s testimony was “unimpeached” was improper vouching. Caselaw supports Spry’s
claim of error. See State v. Porter, 526 N.W.2d 359, 364-65 (Minn. 1995) (determining a
prosecuting attorney committed misconduct when arguing that the testimony of a witness
12
was “without impeachment”). While different from vouching for a witness’s credibility, a
prosecuting attorney’s argument that a witness i s “unimpeached” is improper because it
comments on the defendant’s failure to call witnesses or contradict testimony, suggesting
that the defendant bears some burden of proof. Id. at 365. Here, the prosecuting attorney
plainly erred when arguing that “we have the unimpeached testimony of Officer Lor who
told us the light-rail runs at 45-miles-an-hour here.”
Thus, we conclude that two of the prosecuting attorney’s statements during closing
arguments were plain error. Despite having clearly erred , we determine that the state met
its burden to prove that any error did not affect Spry’s substantial rights . To determine
whether reversible error has occurred, this court considers the closing argument as a whole,
rather than “selective phrases or remarks that may be taken out of context or given un due
prominence.” State v. McDaniel, 777 N.W.2d 739, 751 (Minn. 2010) (quotation omitted).
Here, the improper argument that the transit officers were “honest” was minimized by the
prosecuting attorney in this case. Reviewing the statement in context, the prosecuting
attorney said, “[t]hey seemed honest and prepared— well, you can decide, but these are the
factors to look at, and when you’re thinking about whether they give you credible
testimony, you can think about these questions . . .” The prosecuting atto rney urged the
jury to decide the officers’ credibility, which is proper argument. See Wright, 719 N.W.2d
at 918-19.
Also, the state’s case against Spry was strong. The jury viewed a video of Spry
stepping off the light -rail platform and walking on the tra cks. The jury viewed ano ther
video showing that a light-rail train was stopped for about 20 minutes. Dietz testified that
13
the text of the “no trespassing” sign was clear. Finally, the prosecuting attorney’s improper
arguments were a small portion of a 1 4-page closing argument. We therefore determine
that the state met its burden of proving that the prosecuting attorney’s clear error did not
affect Spry’s substantial rights.
In sum, the record contains sufficient evidence to support Spry’s convictions for
interfering with the operation of a transit vehicle, Minn. Stat. § 609.855, subd. 2(a), and
trespassing on posted private property, MCO § 385.380, subd. (b)(3). Also, any error
during the prosecuting attorney’s closing argument did not affect Spry’s substantial rights.
Thus, we affirm.
Affirmed.