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This opinion is nonprecedential except as provided by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
A20-0284

State of Minnesota,
Respondent,

vs.

John Stephen Bense,
Appellant.

Filed February 1, 2021
Affirmed in part, reversed in part, and remanded
Florey, Judge

Blue Earth County District Court
File No. 07-CR-19-301

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

Patrick R. McDermott, Blue Earth County Attorney, Susan B. DeVos, Assistant County
Attorney, Mankato, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Gina D. Schulz, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Bryan, Presiding Judge; Ross, Judge; and Florey, Judge.
NONPRECEDENTIAL OPINION
FLOREY, Judge
Appellant argues that his misdemeanor theft convictions must be reversed because
the district court improperly limited the scope of defense counsel’s closing argument and
because the prosecutor committed prejudicial misconduct by mischaracterizing witness
testimony. Because the district court’s erroneous evidentiary decisions were harmless and

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the prosecutor did not commit misconduct, we affirm in part. However, because the district
court erred by entering convictions for both theft and aiding and abettin g theft involving
the same behavioral incident, we reverse and remand to vacate one conviction.
FACTS
The state charged appellant John Bense with one count of misdemeanor theft and
one count of aiding and abetting misdemeanor theft, in violation of Minn. Stat.
§ 609.52.2(a)(1) (2018), alleging that he stole or assisted his girlfriend, Kelly Nielsen, in
stealing nail polish and vitamins from a Hy-Vee grocery store.
A jury trial was held on January 23, 2020. Officer Jesse Gilbertson testified as to
his involvement in the investigation. Gilbertson explained that he received a photograph
image from the grocery store’s video footage of the suspects —appellant and Nielsen —a
receipt from the EBT purchase, and an EBT account number, which allowed him to obtain
a search warrant for the rest of the account information. Appellant and Nielsen were listed
as account holders. Upon matching appellant’s driver’s license photograph with the image
from the video footage, Gilbertson issued citations to both appellant and Nielsen.
On cross -examination, defense counsel asked whether Gilbertson watched the
surveillance video, to which he responded “no.” Gilbertson stated that he relied on the
citizen arrest paperwork, the EBT receipt, and the image of the video footage. D efense
counsel then asked whether Gilbertson attempted to contact appellant or Nielsen to discuss
the incident, to which he responded “[n]o, I believe that once they received the citation if
they want to discuss anything with it, my name and information is on that citation and they

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can reach out to me.” On redirect, Gilbertson clarified that it was standard procedure to
mail citations without making phone calls or house visits.
Nielsen had previously pleaded guilty to stealing the nail polish and vitamin s from
the grocery store and was convicted of misdemeanor theft. At appellant’s trial, she testified
that she was responsible for the theft and appellant was unaware of it until they got home.
Defense counsel asked Nielsen why the jury should believe that she was being truthful and
not lying under oath for her long-term boyfriend, to which she responded:
Because I plead[ed] guilty I – never at one point tried to say
that I didn’t do it. I don’t have a history of doing it but I learned
my lesson and I ha ve paid my fines and I have – it is not
something I would ever do again and it is something that
[appellant] told me specifically to grow up and not do and it
has affected our relationship since – because he is in trouble –
because of me.

The state interpreted this testimony to mean that “she has never done this before,” and
moved to impeach her statement with a second theft conviction that had been entered on
the same day as the first for shoplifting at another store. The district court g ranted the
state’s motion over defense’s objection. During cross-examination, Nielsen stated that she
had stolen again at Walmart after stealing from Hy-Vee. She explained:
When the Hy-Vee incident had happened, I wasn’t aware that
it had happened, they had mailed me a ticket so I didn’t –
someone didn’t stop me at the door, there wasn’t a police
officer, I didn’t speak to anybody, I was mailed a ticket and
then I was to go to court. When I had gotten caught at Walmart,
that is the only one I thought I had so, when I went to court for
the Walmart one that is when I learned about the Hy -Vee one.
Ever since the Walmart I haven’t done anything at all that was
a lessoned learned for me – big time because it wasn’t just the
Walmart it was the Hy-Vee as well that I did not know about,

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they mailed me a ticket. I had no knowledge of the Hy -Vee
theft until the Walmart.

Appellant also testified on his own behalf and detailed his version of events. He
testified that he did not steal anything and was not aware that Nielsen had stolen anything
until they got home from Hy -Vee. On cross -examination, the state impeached appellant
with three prior “sanitized” felony convictions.
In closing, the state again attacked the credibility of appellant and Nielsen:
[E]ven if what [appellant] and Ms. Nielsen stated, in their
testimony, contradicts everything the State has provided. They
are not credible. Judge Johnson gave you criteria to evaluate
the credibility of individuals; I am not saying that [appellant]
is a bad guy, the reality of the situation is that he – he is a felon
– he has been convicted of three felonies in the last 10 years.
That is the reality of the situation . . . that doesn’t make him
more or less likely that he committed this crime, it does
impeach his testimony. Judge Johnson told you that. That is
the law.

The state then attacked Nielsen’s credibility, asserting that she lied under oath regarding
the second theft incident.
In closing, defense counsel addressed the state’s witness -credibility arguments.
First, defense counsel acknowledged that appellant had three felony convictions from 2010
and 2012, and implied that these past offenses should not immediately discredit appellant’s
testimony. The state objected, and during a sidebar conversation stated: “[t]his is the law.
Impeachment is decided by the Minnesota Supreme Court.” The district court agreed and
cautioned defense counsel that she was going “a little bit too far” and the jury “can’t know
more about it.” Defense counsel then proceeded to make a witness -credibility argument

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pertaining to Nielsen by imploring the jurors to consider for themselves whether she
actually lied on the stand based on their own recollection of her testimony.
Defense counsel then argued that the evidence was insufficient to convict appellant
and began to critique the state’s investigation:
[Officer Wilken] did not even bother to watch the video
himself; did not bother to call the suspects t o get their side of
the story; fish for an admission; to get an explanation; to get
some kind of corroborative evidence for what Mr. Wilkens told
him on the video that he in fact did not watch. Mr. Wilkens
stands up here today and he testifies that his na rrative, that he
developed in his head when he called the police was the
following: that [appellant] and his girlfriend [Nielsen] came
into the store; they were standing around health and beauty,
they concealed those items; they concealed those items insid e
of coats that they then took out into the car and put in the car
and that is the theft. And what he said was he stopped
recording the video and stopped gathering the footage because
the theft had already occurred when they went in to continue
doing their shopping.

The state objected, arguing that defense counsel was misleading the jury. Defense counsel
explained that she was using the evidence to demonstrate a lack of investigation, which
went to the state’s burden of proof. Reasoning that the issue should have been raised prior
to trial, the district court prohibited defense counsel from making any further argument
concerning what the police officer did.
Following the trial, appellant was convicted of both charges. The district court
entered convictions on both counts and sentenced appellant to 30 days stayed for one year
and a $150 fine. This appeal follows.

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DECISION
I. Scope of closing argument
The first issue we address is whether the district court abused its discretion in
limiting the scope of closing argument by preventing defense counsel from fully contesting
the state’s impeachment evidence and critiquing the state’s investigation. This court
reviews a district court’s ruling on the scope of arguments for an abuse of discretion. State
v. Romine, 757 N.W.2d 884, 892 (Minn. App. 2008).
In limiting the scope of closing argument, a district court should recognize that a
criminal defendant has a constitutional right to be “afforded a meaningful opportunity to
present a complete defense.” State v. Richards , 495 N.W.2d 187, 191 (Minn. 1992)
(quotation omitted). While this right encompasses the “right to make all legitimate
arguments on the evidence, to explain the evidence, and to present all proper inferences to
be drawn therefrom,” it i s not absolute. State v. Atkinson, 774, N.W.2d 584, 589 (Minn.
2009) (quotation omitted). As such, the district court has discretion to limit the scope of
closing argument to safeguard the jury from misleading inferences. Id.
Two limitations are at issue here. First, appellant argues that the district court erred
by impeding defense counsel’s ability to fully address the state’s impeachment arguments.
During closing argument, defense counsel responded to the state’s witness -credibility
argument by noting that appellant’s prior convictions were almost ten years old and stated:
[W]hat kind of world do you want to live in where a person
who is accused almost a decade later, of a totally separate
crime, cannot stand up in front of their peers and tell yo u
something without the State telling you immediately that they

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are automatically not credible and believable as witnesses
because of something they did almost a decade ago.

The state objected, arguing that this was a misstatement of the law or an impermissible
challenge to the current law, which is to be decided solely by the Minnesota Supreme
Court. The district court implicitly affirmed the state’s objection by cautioning defense
counsel that she was going “a little bit too far” and directing her that the jury “can’t know
more about it.” This evidentiary determination was a clear abuse of discretion. Defense
counsel was addressing the weight the jury should give a nearly ten-year-old conviction
when evaluating witness credibility, not challenging or contradicting the established law
of impeachment. Because the objection that was raised here was misplaced, the district
court erred in limiting defense counsel’s impeachment argument on this issue.
Appellant next argues that the district court’s second error was precluding defense
counsel’s critique of the state’s investigation. The state objected to defens e counsel’s
summary of the investigating officer’s testimony, arguing that it was misleading the jury.
The district court sustained this objection and prohibited defense counsel from making
further arguments challenging the police investigation, reasoning that such issues should
have been raised at an omnibus hearing or another point before trial. Again, we conclude
the district court erred in this evidentiary ruling. Defense counsel was appropriately
arguing that the state did not thoroughly investigate the matter, and thus, failed to prove its
case beyond a reasonable doubt. A general challenge to the adequacy of an investigation
need not be raised at an omnibus hearing , and defense counsel was entitled to discuss the

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shortcomings of the investigation at trial, including her closing argument. The district court
abused its discretion in limiting the scope of argument on this issue.
The above errors are subject to a harmless -error analysis; accordingly, we next
consider “whether the guilty verdict actually rendered was surely unattributable to the
error[s].” State v. Larson, 788 N.W.2d 25, 32 (Minn. 2010).
The potential impact that the district court’s evidentiary rulings had on defense
counsel’s closing argument cannot be fully discerned after the fact, but it appears to be
fairly limited after considering defense counsel’s full closing statements in light of the trial
record as a whole. While the district court did prevent defense counsel from further arguing
that the state’s investigation was insufficient, that limitation was imposed only after
defense counsel had already made various statements to the jury suggesting the overall
inadequacy of the investigation. Likewise, the district court cautioned defense counsel that
her impeachment argument was going “too far,” but again, that warning was given only
after defense counsel had implored the jury to consider the amount of weight the older
convictions should have in making credibility determinations. Moreover, the district court
did not instruct the jury to disregard any of counsel’s arguments, and so appellant was
permitted at least in part to present them. Because defense counsel’s closing does not
appear to be considerably different from what it might have been without the district court’s
restrictions, we conclude that the errors here were harmless beyond a reasonable doubt and
had no impact on the verdict.

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II. Prosecutorial misconduct
The next issue raised by appellant is whether the prosecutor committed prejudicial
misconduct that deprived appellant of his constitutional right to a fair trial.
This court reviews claims of unobjected -to-prosecutorial misconduct using a
modified plain-error test. State v. McDaniel, 777 N.W.2d 739, 749 (Minn. 2010). Under
the modified plain -error test, appellant must show that there was an error that was plain.
State v. Ramey, 721 N.W.2d 294, 299 (Minn. 2006). A plain error is one that is “clear or
obvious.” Id. at 302. Once such an error is established, the burden then shifts to the state
to show the plain error did not affect appellant’s substantial rights. Id. “An error affects a
defendant’s substantial rights if there is a reasonable likelihood that the error actua lly
impacted the verdict.” McDaniel, 777 N.W.2d at 749. If the reviewing court determines
that a plain error affected the defendant’s substantial rights, it “then assesses whether the
error should be addressed to ensure fairness and the integrity of the judicial proceedings.”
Ramey, 721 N.W.2d at 302.
Prosecutorial misconduct occurs when a prosecutor intentionally misstates
evidence. State v. Mayhorn , 720 N.W.2d 776, 787 -88 (Minn. 2006). In recognition of
inadvertent misstatements, the law only requires that closing arguments be “proper, not
perfect.” State v. Atkins, 543 N.W.2d 642, 648 (Minn. 1996). The state “may present all
legitimate arguments on the evidence and all proper inferences that can be drawn from that
evidence in its closing argument.” State v. Munt, 831 N.W.2d 569, 587 (Minn. 2013).

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Appellant argues the prosecutor committed misconduct by repeatedly
mischaracterizing Nielsen’s testimony during cross -examination and closing argument.
The prosecutor’s cross-examination of Nielsen went as follows:
Q: Now you testified that [appellant] talked to you that this
was a one time thing and you hadn’t done it before and
you have never done it since then, is that correct?
A: Can you say that again?
Q. You testified – you just told the jury that [appellant],
after finding out that you stole, told you that you should
never do it again and you said you had never done it
before and that you are not gonna do it again, that is
what you told [appellant] is that correct? That is what
you just testified to?
A: Can you repeat that – I am sorry.
Q: You were asked – answering [defense counsel’s]
question is that correct?
A: Yes.
Q: While answering [defense counsel’s] questions you
stated that [appellant] said that you should not steal
before – you should never steal again is that correct?
A: Yes.
Q: And you said that it is a one -time thing, that you never
did steal again is that correct?
A: From Hy-Vee?
Q: Well I am asking you what you said.
A: I don’t recall being asked that.
Q: I am asking you what was said, not what was asked.
A: I did not say that I have – that [appellant] never told me
to steal again.
Q: Did you tell this jury that it was a one -time thing that
you had never stolen before or after?
A: No, I did not tell the jury that.
Q: You did not testify that [appellant] told you not to steal
and that you needed to stop?
A: He had told me that once before any of this, that is why
I hadn’t – that is why I it wasn’t together on – that is
why I did this behind [appellant’s] back because he told
me not to.
Q: Is it true that this is not the only theft conviction on your
record?

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A: Yes.

Then in closing, the prosecutor stated:
[Nielsen] lied to me – she came – she was under oath, she lied
to you, she said she never been – she had never stolen before,
she would never steal again and then when I pressed her on it,
she equivocated, she said oh no that is not what I said, you were
here you know what she said.

The parties dispute whether these instances constitute misstatements of Nielsen’s
testimony. The answers elicited from Nielsen, who was seemingly defensive and
uncooperative during cross -examination, were reasonably subject to different
interpretations. Appellant argues that the state incorrectly construed Nielsen’s testimony
to mean that she had never stolen before and asserts that she actually meant “she learned
her lesson after facing criminal consequences for stealing, which happened at the same
time for both offenses.” Appellant’s proposed interpretation is admittedly based on
“[r]eading only slightly between the lines of [Nielsen’s] testimony,” and is a possible
inference drawn from the testimony. However, because a reasonable person could also
interpret Nielsen’s testimony to involve some dishonesty based on her indirect,
inconsistent, and vague answers, the record supports the prosecutor’s characterization of
her testimony. Because the prosecutor’s characterization is based on a reasonable inference
and was not an intentional misstatement of the evidence, there is no error here.
We further note that even if there was an error, it did not affect appellant’s
substantial rights. See Ramey, 721 N.W.2d at 302. This case involved ample evidence on
which the jury could have based its verdict, including surveillance footage of the theft and
the various witness testimonies presente d throughout the trial. Moreover , as t he state

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emphasizes, the district court adequately informed the jury that statements made by the
attorneys do not constitute evidence, at both the start of the trial and during final
instructions. Additionally, immediately after asserting that Nielsen was lying, the
prosecutor reminded the jury to follow the court’s criteria in evaluating witness credibility.
III. Multiple convictions
The final issue is whether one of appellant’s convictions must be vacated. The
district court entered convictions on appellant’s misdemeanor-theft offense and his aiding-
and-abetting-misdemeanor-theft offense. Appellant argues that this amounts to reversible
error because both offenses are violations of the same statute and arose from a single
behavioral incident. “Whether a defendant’s offense occurred as part of a single course of
conduct is a mixed question of law and fact.” State v. Jones, 848 N.W.2d 528, 533 (Minn.
2014). This court reviews a district court’s finding of fact under a clearly erroneous
standard, and its application of the law to those facts is de novo. Id.
The supreme court has interpreted Minn. Stat. § 609.04 (2018) to bar “multiple
convictions under different sections of a criminal statute for acts committed during a single
behavioral incident.” State v. Clark, 486 N.W.2d 166, 170 -71 (Minn. App. 1992) (citing
State v. Jackson , 363 N.W.2d 758, 760 (Minn. 1985)). In determining whether two
criminal acts constitute a single behavioral incident, courts consider the time and place of
the crimes and whether the conduct was motivated by a desire to obtain a single criminal
objective. State v. Bauer, 792 N.W.2d 825, 828 (Minn. 2011). It is the state’s burden to
establish by a preponderance of the evidence that the two offenses were not part of a single
behavioral incident. State v. Williams, 608 N.W.2d 837, 841-42 (Minn. 2000).

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Here, appellant was convicted of misdemeanor theft as well as aiding and abetting
misdemeanor theft—both violations of Minn. Stat. § 609.52.2(a)(1). And the jury relied
on the same factual basis to find appellant guilty of both charges. Appellant’s offenses
occurred at the same location and time and were presumably motivated by a single criminal
objective, demonstrating a continuous course of conduct. Because the district court did not
find separate acts of theft to support separate convictions, appellant was improperly
convicted twice under the same criminal statute for the same single act of theft.
While the district court properly sentenced appellant for only one conviction, it erred
in formally adjudicating him guilty of both counts. See State v. Pflepsen, 590 N.W.2d 759,
766 (Minn. 1999) (explaining that if a jury convicts a defendant of more than one offense
from a single course of conduct, “the court [is] to adjudicate formally and impose sentence
on one count only.”). One of appellant’s convictions must be vacated.
Affirmed in part, reversed in part, and remanded.