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This opinion is nonprecedential except as provided by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
A20-0321

State of Minnesota,
Respondent,

vs.

Terry Lee Johnson,
Appellant.

Filed March 29, 2021
Affirmed
Cochran, Judge

Mille Lacs County District Court
File No. 48-CR-18-329

Keith Ellison, Attorney Genera l, Matthew Frank, Assistant Attorney General, St. Paul,
Minnesota; and

Joe J. Walsh, Mille Lacs County Attorney, Milaca, Minnesota (for respondent)

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

Considered and decide d by Cochran, Presiding Judge; Gaïtas, Judge; and
Cleary, Judge.


 Retired judge of the Minnesota Court of A ppeals, serving by appoi ntment pursuant to
Minn. Const. art. VI, § 10.

2
NONPRECEDENTIAL OPINION
COCHRAN, Judge
On appeal from conviction of second-de gree assault, appellant argues that the
district court erred by instructing the jury that he had a duty to retreat if reasonably possible
before acting in self-defense in his driveway . Appellant also argues that the prosecutor
committed misconduct by repeatedly implying that appellant had the burden to present
evidence at trial. Because we conclude that the district court did not err in its instructions
to the jury and that the pros ecutorial misconduct identified by appellant did not affect the
jury’s verdict, we affirm.
FACTS
The state charged appellant Terry Lee Johnson with second-degree assault and
third-degree assault following an altercation on his property . The following facts were
established at trial.
In early 2018, Johnson was separated from his wife. Although separated, Johnson
and his wife continued to live on the same property—Johnson’s wife lived in the house
while Johnson stayed in a camper parked in the driveway. Because the camper had no gas
or water supply, Johnson entered the house to cook and to use the bathroom. The property
also had a small cabin located across the driveway from the camper.
At some time prior to the separation, Johnson’s wife became romantically involved
with another man, S.L. Johnson’s wife co ntinued to see S.L. after her separation from
Johnson.

3
On February 2, 2018, S.L. visited Johnson’s wife at the residence. Johnson’s wife
later left the property, leaving S.L. alone in the cabin. Thereafter, Johnson arrived with a
friend to retrieve some items from the camper. To avoid a confrontation with Johnson’s
wife, the pair parked in the pa rking lot of a bowling alley lo cated next to the property.
While Johnson was inside the camper, his frie nd noticed S.L. in the cabin and alerted
Johnson to S.L.’s presence. S hortly afterward, S.L. came out of the cabin and walked to
his car, which was parked in the driveway. While S.L. was standing near his car, Johnson
exited the camper.
Both standing in the driveway, Johnson and S.L. exchanged “heated words,” each
asking the other what he was doing on the pr operty. They then began throwing punches,
and Johnson and S.L. each struck the other at least one time. S.L. testified that after about
15 seconds, Johnson fell to the ground and st ood back up. Johnson then pulled a knife
from his pocket and stabbed S.L. Johnson testified that he swung the knife once, striking
S.L. “on the left side of the chest, gut.” S.L. testified that Johnson swung a “silver” object
at him twice, hitting him in the ribs on the left side and on the left hand. Johnson’s friend
then said to him “we got to go,” and Johnson and his friend left the property.
S.L. called 911 and was taken by ambulan ce to the hospital. He arrived with a
five-centimeter wound to his chest and a laceration on his left hand involving a tendon and
a nerve. He received stitches fo r both wounds. At the hospital, S.L. told an investigator
that Johnson had stabbed him with “somethi ng sharp”—possibly a sc rewdriver, but S.L.
was not certain what the object was.

4
The state charged Johnson with one count of second-degree assault with a dangerous
weapon resulting in substantial bodily harm and one count of third-degree assault resulting
in substantial bodily harm. At trial, Johnson argued that he acted in self-defense. The jury
heard testimony from Johnson, S.L., and Jo hnson’s friend who was present during the
altercation, as well as law enforcement i nvolved in the investigation and a doctor who
treated S.L. at the hospital. Although John son testified that he stabbed S.L. with a
pocketknife, the knife was not in troduced as an exhibit. Jo hnson’s testimony at trial was
the first time the prosecution was made aware that Johnson had used a knife in the stabbing.
After both parties rested, the district court granted the state’s request to add a third count—
second-degree assault with a dangerous weapon—as a lesser-included offense.
The district court provided a jury inst ruction on self-defense , which included the
duty to retreat if reasonably possible before using reasonable force. The court denied a
request by Johnson’s counsel to sp ecify in its instructions that there is no duty to retreat
from one’s home.
The jury found Johnson guilty on all three counts. The district court convicted
Johnson of only one offense: second-degree assault with a dangerous weapon resulting in
substantial bodily harm. J ohnson subsequently moved for downward dispositional and
durational departures. The di strict court denied the moti ons and imposed an executed
sentence of 21 months.
Johnson appeals.

5
DECISION
Johnson argues that his conviction must be reversed and remanded for a new trial
because (1) the district court erred by instructing the jury that Johnson had a duty to retreat
from his own property before using reasonable force in self-defense, and (2) the prosecutor
committed misconduct by repeatedly implying that Johnson had the burden to present the
knife used in the stabbing as evidence at trial. Each of these arguments is addressed in turn
below.
I. The district court did not err by inst ructing the jury that Johnson had a duty
to retreat if reasonably possible before acting in self-defense.

Johnson first argues that the district c ourt erred by instructing the jury, over his
objection, that he had a duty to retreat before acting in sel f-defense. He contends that he
did not have a duty to retreat because the fight occurred on his own property.
A district court generally has broad discre tion in crafting jury instructions, but “a
jury instruction is erroneous if it materially misstates the law.” State v. Devens ,
852 N.W.2d 255, 257 (Minn. 2014). Whether the duty to retreat applies in a particular case
is a question of law that we review de novo. Id. An erroneous duty-to-retreat instruction
included as part of a self-defense inst ruction may constitute reversible error. See
State v. Baird, 654 N.W.2d 105, 113-14 (Minn. 2002) (affirming an order for a new trial
based on an erroneous duty-to-retreat instruction); see also State v. Koppi ,
798 N.W.2d 358, 366 (Minn. 2011) (granting a new trial based on an objected-to
instructional error where the error was not harmless beyond a reasonable doubt).

6
The right of self-defense is codified in Minn. Stat. § 609.06, subd. 1(3) (2016). That
provision provides, in relevant part, that reasonable force may be used upon another
without the other’s consent “when used by any person in resi sting . . . an offense against
the person.” Minn. Stat. § 609.06, subd. 1(3). The supreme court has interpreted the right
of self-defense to include four elements:
(1) the absence of aggression or provocation on the part of the
defendant; (2) the defendant’s actual and honest belief that he
or she was in imminent danger of . . . bodily harm; (3) the
existence of reasonable grounds for that belief; and (4) the
absence of a reasonable possibility of retreat to avoid the
danger.

Devens, 852 N.W.2d at 258 (emphasis added) (quotation omitted). The supreme court has
also held that the fourth el ement—the duty to retreat—is not required when a defendant
argues that he acted in self-defense in his home. Id. Under the so-called “castle doctrine,”
a person is not obligated to retreat from his or her home before acting in self-defense
because a person’s home is a “s anctuary” and a “place critic al for the protection of the
family.” Id. (quotation omitted). Accordingly, “[r]equiring retreat from the home before
acting in self-defense would require one to leave one’s safest place.” Id. (quotation
omitted). Conversely, “if a person is outside hi s or her home and can sa fely retreat, then
the person’s use of force is unreasonable as a matter of law.” Id.
At trial, the state requested that the dist rict court’s self-defen se jury instruction
include an instruction on the duty to retreat. Johnson’s counsel argued that the instruction
should reflect that a defendant has no duty to retreat when he is at his home. Johnson’s
counsel also asserted that case law suggests that a person’s “d riveway is still part of the

7
home” and therefore Johnson did not have a duty to retreat. The district court rejected
defense counsel’s argument. It reasoned that the standard duty-to-retreat instruction was
proper because the fight between Johnson and S.L. “happened outside,” rather than in the
camper or house, and the fight did not involve the defense of a dwelling.
The court thereafter provided a detailed self-defense instruction to the jury on each
of the three counts. As part of the self-defense instruction, the district court specified that
self-defense involves “the absence of the re asonable possibility of retreat to avoid the
danger” and that one who acts in self-defense has a “duty to retreat or avoid the danger if
reasonably possible.”
On appeal, Johnson argues that the dist rict court erred by including the duty-to-
retreat language as part of the self-defense in struction to the jury. He acknowledges that
the stabbing occurred outdoors on his property but argues that the case law supports his
position that the castle doctrine “extends beyond the four walls of the physical home and
onto his surrounding property.” The state contends that the district court did not err by
including the standard duty-to-retreat language because the case law limits application of
the castle doctrine to the interior of the home. Based on our review of the case law, we
conclude that there are no precedential Minne sota cases clearly extending the castle
doctrine beyond the dwelling itself. Although Johnson cites several cases that he contends
support his argument that his driveway is hi s “home” for the purpose of self-defense, his
reliance on those cases is misplaced.
The principal case on wh ich Johnson relies is Devens. In Devens, the supreme court
addressed whether the castle doctrine extended to the hallway of an apartment complex.

8
852 N.W.2d at 258-60. After emphasizing th at a person’s home is his “sanctuary,” his
“safest place,” and “critical for the protection of the family,” the court explained that “the
castle doctrine extends to a house, an apartment or part of a structure where [the] defendant
lives and where others are ordinarily excluded—the antithesis of which is routine access to
or use of an area by strangers.” Id. at 258-59 (quotations omitted). The court then centered
its analysis on the extent to which Devens exercised “exclusive possession and control”
over the hallway in his apartment complex. Id. at 259-60 (quotation omitted). Reasoning
that “Devens did not exercise exclusive (or anything clos e to exclusive) possession and
control over the apartment hallway,” the court concluded that the hallway of the apartment
complex “was not [Devens’s] safest place or his sanctuary” and that Devens, therefore, had
a duty to retreat. Id. at 259.
Based on his reading of Devens, Johnson urges this court to conclude that his
driveway is his home for the purpose of th e castle doctrine because he had “exclusive
possession and control” of the land on his property. But nothing in Devens suggests that
the castle doctrine applies where, as here, th e altercation occurred outside of the physical
structure in which the defe ndant-appellant lives. The Devens court was careful to
emphasize that it was “not . . . resolv[ing] for all time the contours of what is ‘home’”
within the meaning of the castle doctrine. Id. at 260. And Devens dealt with a specific
situation—an altercation that took place within the encl osed shared hallway of an
apartment complex. Id. at 256. Within that context, it was necessary for the supreme court
to examine whether Devens had exclusive possession and control over the hallway to
determine whether that space, contained with in the larger struct ure of the apartment

9
complex, constituted Devens ’s “sanctuary” and “safest place.” The facts of Devens are
very different from the facts of this case, wh ere the altercation occurred in the open-air
driveway of Johnson’s property. Johnson provides no compelling rationale for applying
Devens’s “exclusive possession and control” anal ysis to an area located outside of a
building or structure in which the defendant lives.
Moreover, while we recognize that the Devens court did not expressly limit the
application of the castle doctrine to the interior of the home, the court noted that the “castle
doctrine extends to a house, an apartment or part of a structure where [the] defendant
lives.” Id. at 259 (emphasis added) (quotation omitted). This statement is consistent with
cases preceding Devens, which have exclusively applied the castle doctrine to the interior
of the home. See, e.g., State v. Glowacki, 630 N.W.2d 392, 402 (Minn. 2001) (stating that
“when acting in self-defense in the home, a person should not be required to retreat from
the home before using reasonable force to defend himself” (emphasis added));
State v. Carothers, 594 N.W.2d 897, 900 (Minn. 1999) (s tating that there is no duty to
retreat “for people engaging in self-defense within their homes” (emphasis added)).
Devens does not support Johnson’s argument.
The remaining cases on which Johnson relie s are also inapposite. Johnson cites
State v. Gardner, 104 N.W. 971 (Minn. 1905), for his contention that the duty to retreat is
inapplicable when a person acts in self-def ense on the lands surrounding his home.
However, contrary to Johnson’s assertion, the use of force at issue in Gardner occurred on
the victim’s property, not the defendant’s. See 104 N.W. at 972 (discussing that Gardner
shot the victim outside the victim’s cab in, which was located 2.5 miles away from

10
Gardner’s property). And the Gardner court’s analysis did not focus on the location of the
use of force, but rather focused on the practicability of retreat. Id. at 975 (“It was apparently
as dangerous for him to retreat as to stand his ground. . . . It was accordingly reversible
error . . . for the trial court to have charged upon the subject of escape or retreat.”).
Johnson also cites State v. McCuiston, in which the appellant shot the victim while
the appellant was standing inside the doorway to his home and the victim was on the porch.
514 N.W.2d 802, 803 (Minn. App. 1994), review denied (Minn. June 15, 1994). But
McCuiston solely concerned the district court’s refusal to provide a defense-of-dwelling
instruction; the case did not address the scope of the duty-to-retreat exception. See id. at
804.
Johnson further relies upon State v. Penkaty , 708 N.W.2d 185 (Minn. 2006),
contending that the case provided that an open-air deck was part of defendant’s dwelling
and he had no duty to retreat. In Penkaty, the appellant stabbed the victim while both men
were on the appellant’s deck. 708 N.W.2d at 207. On appeal, Penkaty argued that “the
jury instructions on self-defense, defense of others, and defense of dwelling, when read as
a whole, were confusing and suggested that Penkaty had a duty to retreat despite being on
the front deck of his own home.” Id. The supreme court explained that “[g]enerally, there
is a duty to retreat if reasonabl y possible when acting in self-def ense . . . [b]ut there is no
duty to retreat when acting in defense of dwelling.” Id. The supreme court then noted that
“[t]he district court concluded as a matter of law that the front deck was a part of Penkaty’s
dwelling.” Id. The supreme court also recognized th at the district court’s instructions
“state[d] in two places that Pentaky had no duty to retreat from his own home” and

11
concluded that the “jury instru ctions did not materially mi sstate the law because they
repeatedly stated that Penkaty had no duty to retreat from his own home.” Id. Here, unlike
in Penkaty, there was no defense-of-dwelling claim. T h i s c a s e i s a l s o f a c t u a l l y
distinguishable from Penkaty because Johnson was not on a deck or other structure attached
to his home at the time of his actions. In sum, Penkaty lends no support to Johnson’s
argument. Penkaty did not extend the castle doctrine to a person’s driveway or yard.
Lastly, Johnson cites the United Stat es Supreme Court’s 1895 opinion in
Beard v. United States , 158 U.S. 550, 15 S. Ct. 962 (1895). In Beard, the Court
examined the self-defense jury instruction provided in a federal criminal trial. 158 U.S.
at 551, 15 S. Ct. at 962. The Court ordered a new trial on the basis that the jury was
improperly instructed that Beard had a legal dut y to retreat from an “orchard lot” located
about 50 to 60 yards from his house before acting in self-defense. Id. at 552, 563-64, 15
S. Ct. at 962, 967. The Court stated: “[W] e cannot agree that the accused was under any
greater obligation when on his own premises, near his dwellin g house, to retreat or run
away from his assailant, than he would have been if attacked within his dwelling house.”
Id. at 559-60, 15 S. Ct. at 965. While we are mindful of Beard, we apply Minnesota state
law “[e]xcept in matters governed by the Fede ral Constitution or by acts of Congress.”
Erie R.R. Co. v. Tompkins , 304 U.S. 64, 78, 58 S. Ct. 81 7, 822 (1938). Accordingly,
because the right to self-defen se and the application of the castle doctrine is a matter of
state law, Beard does not dictate the result of the present case.1 See Minn. Stat. § 609.06,

1 At oral argument, Johnson’ s counsel also referenced Baird, in which the defendant
assaulted a co-resident of the defendant’s motor home. 654 N.W.2d at 108. The supreme

12
subd. 1(3) (setting forth the right to self-defense); Devens, 852 N.W.2d at 258 (discussing
the statutory right to self-defense).
Minnesota case law is clear that one’s “ home” within the mean ing of the castle
doctrine is one’s “safest place” and “sanctuary.” Devens, 852 N.W.2d at 258. This court
applied that principle in State v. Clayborne, where Clayborne stood in the open doorway
of his house and shot the victim who, in turn, was standing in the yard on the sidewalk to
Clayborne’s house. 404 N.W.2d 38 5, 386-87 (Minn. App. 1987), review denied (Minn.
May 28, 1987). We concluded that the distri ct court did not err by providing a duty-to-
retreat instruction even where Clayborne was standing in his own doorway. Id. at 387.
In light of precedential Minne sota case law, we cannot conclude that the district
court erred by instructing the jury that Johnson had a duty to retreat if reasonably possible
before acting in self-defense. Johnson, who was standing in his driveway at the time of the
stabbing, was not located in his safest place or sanctuary. At trial, Johnson testified that
the fight occurred while he was standing “about five or six feet away from the door of the
camper” in which he was living at the time. He also indicated that he was standing between
the camper and S.L., meaning that S.L. was not blocking his path to the camper during the
fight. Accordingly, Johnson had at least two options of locations to which to retreat: into
the camper or, alternatively, into the house located on the property. Both of those locations

court held that the district court erred by instructing the jury that the defendant had a duty
to retreat before acting in self-defense. Id. at 113-14. Baird is inapposite to this case
because, while the dispute between the residents began outside the motor home, the use of
force constituting self-defense occurred inside the motor home. Id. at 108.

13
more squarely fit the definition of Johnson ’s “safest place” or “sanctuary” than his
driveway.
In sum, none of the Minnesota cases that Johnson relies upon hold that the castle
doctrine applies beyond the dwelling itself. And we are aware of no precedential
Minnesota cases that support his argument. As an error-correcting court, we must “apply
the best law available to us.” State v. Kelley, 832 N.W.2d 447, 456 (Minn. App. 2013),
aff’d, 855 N.W.2d 269 (Minn. 2014). We therefore decline Johnson’s suggestion that we
extend the parameters of the castle doctrine to a homeowner’s driveway, and we conclude
that the district court did not err by instructing the jury that Johnson had a duty to retreat if
reasonably possible.
II. The prosecutorial miscon duct identified by Johnson does not require reversal
because it did not affect the jury’s verdict.

Johnson next argues that the prosecutor engaged in misconduct by twice implying
that Johnson had the burden to present the knife used in the st abbing as evidence at trial.
The first instance occurred during the prosecutor’s cross-examination of Johnson, and the
second instance occurred during the prosecutor’s closing argument. Johnson contends that
the alleged misconduct, both alone and cumula tively with the duty-to-retreat instruction,
deprived him of a fair trial and therefore requires reversal. Because Johnson did not object
to the first instance of alleged misconduct bu t did object to the second, we address each
instance separately under the applicable standard of review.

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A. Cross-Examination Questions
The first instance of alleged mi sconduct occurred during the state’s
cross-examination of Johnson. On direct ex amination, Johnson tes tified that he stabbed
S.L. in the chest or gut with a pocketknife. On cross-examination, the prosecutor asked
Johnson several questions about the knife, which resulted in the following exchange:
Q: Okay. Well, what—you still haven’t told me what the knife
is. What kind of knife are we talking about? You said it’s a
pocket knife.

A: Yeah, a—

Q: What does that mean?

A: A little swiss army kind of style knife. The blade’s—

Q: How long is the blade?

A: A few inches or something.

Q: Just a few inches?

A: Yeah. Yes.

Q: Did you bring the knife here today?

A: No.

Q: Okay. So we just kind of take your word for it?

A: Yes.

Defense counsel did not object to the prosecutor’s questions.
When a defendant fails to object to a prosecutor’s questions during trial,
prosecutorial misconduct alleged on appeal is reviewed under a modified plain-error
standard. State v. Ramey, 721 N.W.2d 294, 302 (Minn. 20 06). Under this standard, the

15
appellant-defendant bears the burden of establishing an error by the prosecutor that is plain.
Id. An error is plain if it “contravenes case law, a rule, or a standard of conduct.” Id. If
the appellant makes the required showing, the bur den shifts to the state to prove that the
error did not affect the appellant’s substantial rights. Id.
Here, Johnson argues that the prosecuto r’s questions concerning the knife on
cross-examination constituted plain error base d on this court’s previous decision in
State v. Montgomery, 707 N.W.2d 392 (Minn. App. 2005). In Montgomery, a jury found
the appellant guilty of selling a controlled subs tance. 707 N.W.2d at 395. At trial,
Montgomery argued that he was present in the car where the drug sale occurred but did not
know that drugs were in the car and was unaware that the sale was taking place. Id. at 396.
On cross-examination, the prosecutor asked Montgomery wh ether he had subpoenaed a
witness who was also in the car during the sale but who did not testify at trial:
Q. We don’t hear that from Shawntan, do we?

A. Pardon me?

Q. We hear that from you, right?

A. Yes.

Q. And you know Shawntan Sm ith is refusing to talk to
anybody, don’t you?

A. Like . . . .
Q. You know that, don’t you?
A. What do you mean?
Q. He is refusing to talk.

16
A. No, I don’t know that.
Q. And you didn’t subpoena him, did you?
A. No, I did not.
Id. at 396-97. This court determined th at the prosecutor’s questioning constituted
misconduct that deprived Montgomery of a fair trial. Id. at 400-01. We stated that “[a]
defendant is not required to pres ent evidence in his own behalf, and any suggestion or
insinuation to the contrary is improper .” Id. at 400 (emphasis added). And we reasoned
that by asking Montgomery wh ether he subpoenaed the witness, the prosecutor “clearly
implied that, if Montgomery were going to be believed, he had a duty to subpoena Smith
to testify.” Id. We concluded that the question wa s “serious prosecutorial misconduct”
because it “suggested that Montgomery had a duty to present evidence on his own behalf.”
Id.
Johnson contends that the prosecutor’s questions in the present case constitute plain
error because they “mirror the question this [c]ourt found to be misconduct in
State v. Montgomery.” We agree. Similar to the prosecutor’s question in Montgomery, the
prosecutor’s questions in this case clearly im plied that if Johnson were to be believed
regarding the size and appearance of the knife, he had a duty to present the knife at trial.
We therefore conclude that the prosecutor’s questions improperly suggested that Johnson
had a duty to present evidence on his own behalf and that those questions constitute error
that is plain.
Having concluded that the prosecutor’s ques tions were plainly erroneous, we next
consider whether the state has met its burden to show that the error did not affect Johnson’s

17
substantial rights. Ramey, 721 N.W.2d at 302. To meet its burden, the state must show
that “there is no reasonable likelihood that the absence of the misconduct . . . would have
had a significant effect on the verdict of the jury.” Id. (quotation omitted). In evaluating
the effect on substantial rights, this court c onsiders “the strength of evidence against the
defendant, the pervasiveness of improper su ggestions, and whether the defendant had an
opportunity to (or made efforts to ) rebut the improper suggestions.” State v. Cao ,
788 N.W.2d 710, 717 (Minn. 2010).
Here, the state has met its burden to show that the improper questions did not affect
Johnson’s substantial rights. First, the ev idence presented agains t Johnson at trial was
strong. Johnson was found guilty of (1) seco nd-degree assault with a dangerous weapon
resulting in substantial bodily harm; (2) third-degree assault resulting in substantial bodily
harm; and (3) second-degree assault with a dangerous weapon. To meet its burden of proof
on those counts collectively, the state needed to establish that Johnson assaulted another
person with a dangerous we apon and inflicted substan tial bodily harm. Minn.
Stat. §§ 609.222, .223, subd. 1 (2016). Duri ng Johnson’s own testim ony, he admitted to
stabbing S.L. with a knife and stated that he did so in part because he “wanted to keep
fighting.” In addition, the trial testimony furt her tended to show that the stabbing caused
substantial bodily harm, as S.L. continued to experience numbness in his left hand at the
time of trial. See Minn. Stat. § 609.02, subd. 7a (2016) (providing that the definition of
“substantial bodily harm” incl udes “bodily injury . . . wh ich causes a temporary but
substantial loss or impairment of the function of any bodily member or organ”). And the
prosecution elicited testimony refuting Johnson’ s claim of self-defense. The testimony

18
demonstrated that Johnson had an opportunity to re treat from the alter cation prior to the
stabbing, based both on the location of the fight and the amount of time it must have taken
for Johnson to reach into his pocket and open the knife. Given the strength of the evidence
against Johnson, the prosecutor’s statements were likely inconsequential to the verdict.
Second, the prosecutor’s comments about Johnson’s failure to present the knife at
trial were brief. The improper questions make up a few lines out of a nearly 450-page trial
transcript. And, even if the cross-examination questions are considered together with the
prosecutor’s comments in closing argument discussed below, the statements were brief and
not pervasive. The prosecutor emphasized the state’s burden of proof in his opening
argument and twice reminded the jury of that burden during his closing argument. And the
district court repeatedly inst ructed the jury abou t the state’s burden of proof and defined
“reasonable doubt.” See State v. Hall, 764 N.W.2d 837, 845 (Minn. 2009) (presuming that
jurors will follow instructions from the district court).
Third, defense counsel had an opportunity to rebut the improper comments, and did
so. In her own closing argument, defense counsel stated:
I will just remind you there were a couple comments during the
State’s closing—but just to remind the Court and the jury—
Mr. Johnson has nothing to prove. There is no duty for him to
prove anything at this point. He does not need to put on any
evidence. He does not need to bring any evidence. There’s no
requirement for that.

Defense counsel’s comments made it clear to the jury that Johnson had no duty to produce
any evidence at trial.

19
In his brief, Johnson suggests that the prosecutor’s questions regarding the knife
implicated the credibility of his self-defense claim because the jury may have inferred from
the questions that “Johnson didn’t simply reach for his utility knife in a moment of fear,
but rather brought a larger knife from the camp er specifically in an ticipation of fighting
S.L.” But even if the jury were to make such an indirect inference from the prosecutor’s
improper questions, it is improbable that the inference would have significantly affected
the jury’s verdict given the st rength of the other evidence pr esented against Johnson. In
light of the strength of the evidence agains t Johnson, the brevity of the prosecutor’s
comments about the knife, and the reminders by both partie s and the district court of the
state’s burden of proof, we conclude that the prosecutor’s improper questions did not have
a reasonable likelihood of significantly affec ting the jury’s verdict. Accordingly, the
prosecutorial misconduct duri ng questioning of Johnson on cross-examination does not
warrant a new trial.
B. Closing Argument Comments
The second instance of alleged misconduc t took place during the state’s closing
argument. There, the prosecutor stated:
[A]nd I would note we don’t ha ve that blade. Don’t know
where that blade is. Never ev en heard about that blade until
today. Pretty easy to bring it in, show it. Blade and a half—
inch and a half. Maybe not. I don’t know. Maybe it’s lost.

After the prosecutor finished his remarks and the jurors ex ited the courtroom, Johnson’s
attorney objected to the prosecutor’s statement, saying:
I wanted to object to part of the State’s closing where they were
talking about “not bringing the knife. It would be easy to bring

20
in the knife,” just as a reminder it’s not defense’s duty to prove
anything in this case or bring in evidence. So I felt like that
was shifting the burden.

Because defense counsel objected to the pros ecutor’s comments, we review the alleged
prosecutorial misconduct for harmless error. State v. Wren, 738 N.W.2d 378, 389
(Minn. 2007).
As with the prosecutor’s questions duri ng cross-examination, the prosecutor’s
comments during his closing argu ment constitute error. In particular, the prosecutor’s
statement that the knife would be “[p]retty eas y to bring” to court suggested that Johnson
would have presented the knife at trial if his testimony regarding the size of the knife were
true. This comment amounts to prosecutorial misconduct because it implied that Johnson
had a duty to present ev idence on his own behalf. See Montgomery, 707 N.W.2d at 400
(“A defendant is not required to present evidence in his own behalf, and any suggestion or
insinuation to the contrary is improper.”).
Having concluded that the prosecutor’s cl osing-argument comments were error, we
must address whether the objected-to co mments were nonetheless harmless error. Wren,
738 N.W.2d at 389 (providing that objected-to prosecutorial misconduct is reviewed for
harmless error). In assessing whether an error is harmless in the cont ext of prosecutorial
misconduct, we must look at the severity of the misconduct. State v. Hunt ,
615 N.W.2d 294, 302 (Minn. 2000). In case s involving less serious misconduct, we
examine “whether the misconduct likely played a substantial part in influencing the jury to
convict.” Wren, 738 N.W.2d at 390 n.8 (quotation omitted). In contrast, in cases of serious

21
misconduct, the misconduct must be “harmless beyond a reasonable doubt,” meaning that
“the verdict rendered was surely unattributable to the error.” Hunt, 615 N.W.2d at 302.
Assuming, without deciding, that the pros ecutorial misconduct in this case qualifies
as serious misconduct, we conclude that the misconduct was harmless beyond a reasonable
doubt. As discussed with re spect to the prosecutor’s cr oss-examination questions, the
improper statements made during the prosecu tor’s closing argument were brief when
considered in the context of the closing argume nt as a whole. The evidence of Johnson’s
guilt was overwhelming. And de fense counsel countered the improper statements in her
own closing argument. Accordingly, we c onclude that the jury’s verdict was not
attributable to the prosecutor’s improper statements.
Johnson also contends that the instan ces of prosecutorial misconduct, when
considered together along with the district court’s duty-to-retreat instruction, had the
cumulative effect of denying Johnson a fair tria l. But, because we have determined that
the district court did not err by instructing th e jury that Johnson ha d a duty to retreat if
reasonably possible and that the prosecutorial misconduct did not affect the jury’s verdict,
we conclude that Johnson was not deprived of a fair trial. We therefore conclude that
Johnson’s arguments do not require reversal.
Affirmed.