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This opinion is nonprecedential except as provided by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
A20-0826

State of Minnesota,
Respondent,

vs.

Lisa Beth Ellenberg,
Appellant.

Filed May 24, 2021
Affirmed
Slieter, Judge

Dakota County District Court
File No. 19HA-CR-18-1049

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

Kathryn M. Keena, Acting Dakota County Attorney, Anna Light, Heather D. Pipenhagen,
Assistant County Attorneys, Hastings, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Sara L. Martin, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Hooten, Pres iding Judge; Johnson, Judge; and Slieter,
Judge.
NONPRECEDENTIAL OPINION
SLIETER, Judge
In this direct appeal from final judg ment of conviction of one count of second-
degree burglary, appellant claims the conviction must be reversed and the matter remanded
for a new trial because three trial errors deprived her of a fair trial and because the district

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court erred in its resolution of appellant’s motions for in camera review. In her pro se
brief, appellant also claims that the district court erred by failing to provide an accomplice-
testimony instruction to the jury. Because no reversible errors occurred by the district court
during appellant’s trial and the district court properly considered appellant’s in camera
review motion, we affirm.
FACTS
Respondent State of Minnes ota charged appellant Lisa Beth Ellenberg with one
count of second-degree burglary, in violati on of Minn. Stat. § 60 9.582, subd. 2(a)(1)
(2018), after it was reported to police that a safe containing approximately $10,000 in cash
had been stolen from the victim’s home. The victim’s bother reported that the safe had
disappeared during the time the victim was being held in jail in Dakota County as a result
of allegations of sexual assault made by a ppellant. No charges we re brought against the
victim related to these allegations.
At appellant’s trial for second-degree bu rglary, the jury heard testimony from the
victim, several members of the victim’s family, a member of the Lakeville Police
Department, and several other related individuals.
Several witnesses testified that, becau se appellant had borrowed the victim’s
vehicle, which contained an opener for the victim’s attached garage, while the victim was
in jail, appellant had access to the victim’s home during the time of the robbery. Witnesses
testified that they had noticed new scuff marks inside the vehicle matching the paint color
of the safe which was reported stolen. These witnesses also testified that a number of seats
in the second and third rows of the vehicle had been folded flat (the victim testified that he

3
typically only kept one seat folded flat) and that a number of boxes in the victim’s garage
had been moved during the time he was in jail. Two witnesses, A.M. and K.F., testified
that appellant had confessed to them that she had removed items from the home and had
asked for their discretion in concealing the crime and aid with hiding a portion of the
money. The jury found appellant guilty of second-degree burglary. The district court
convicted appellant of the offense, stayed imposition of sentence, and placed appellant on
probation for three years. This appeal follows.
DECISION
I. Appellant received a fair trial.
Appellant argues that she was deprived of a fair trial due to three errors. These
errors include the district c ourt allowing witness A.M. to testify despite her purported
incompetence and allowing testimony that the victim would not be criminally charged with
sexual assault despite the allegations by a ppellant. Finally, appellant argues that the
prosecutor committed reversible error by insu fficiently preparing a police officer which
resulted in the officer making a prohibited statement regarding prior drug use by appellant.
Appellant argues that these errors require reversal and a remand for a new trial.
Alternatively, appellant argues that these errors, even if not justifying reversal individually,
do so when viewed collectively. We review each purported error in turn.
A. Testimony of A.M.
Prior to trial, and pursuant to Minn. St at. § 595.02, subd. 1(f) (2018), appellant
sought an order to prevent A.M.’s testimony due to her incompetence. In support of this
motion, appellant submitted 43 pages of text message and Facebook Messenger statements

4
from A.M. which detailed a series of ongoi ng delusions, includi ng one in which A.M.
stated that she believed that she had been implanted with a “voice-to-skull” chip in her
brain through which she was r eceiving communications. The district court conducted a
competency examinati on with A.M. prior to her testim ony and conclude d that A.M.’s
mental health was “not enough to find her incompetent.”
“Every person of sufficient understanding, including a party, may testify in any
action or proceeding, civil or criminal,” ex cept “[p]ersons of un sound mind and persons
intoxicated at the time of their production fo r examination are not competent witnesses if
they lack capacity to remember or to relate truthful ly facts respecti ng which they are
examined.” Minn. Stat. § 595. 02, subd. 1(f). A district c ourt must determine whether a
potential witness is able to bo th (1) understand the obligation of an oath made to testify
truthfully, and (2) correctly relate the fact s to which their testimony would pertain. State
v. Hunt, 615 N.W.2d 294, 300 (Minn. 2000). “The determination of a mentally ill person’s
competency to testify is usually made only after the [district] court’s preliminary
examination of the witness.” Id. Reviewing courts may look to the preliminary
examination as well as the testimony of the challenged witness to determine whether the
district court correctly found them to be competent. See State v. Struss, 404 N.W.2d 811,
814 (Minn. App. 1987), review denied (Minn. Jun. 9, 1987).
During the competency examination, the district court asked A.M. whether she
understood she would be “required to tell the truth about a ll of the issues involved in this
case,” whether she “underst[ood] the differe nce between telling the truth and not telling
the truth,” and whether she would be able to “tell the truth about all of the issues involved

5
in this case.” A.M. answered all these questions affirmativel y. The district court judge
asked no follow-up questions, but then inquired into A.M.’s mental health and how it would
impact her ability to relate th e facts of this case. A.M. confirmed that she believed
“[appellant] and maybe another individual had been involved in putting a chip in [her]
brain” and indicated her belief that she was “working with a bioengineer . . . in Australia,”
“ha[d] a detective working for [her],” and “h a[d] a referral to the Mayo Clinic.” A.M.
indicated that she felt she was “able to give the [c]ourt and the jury information about other
aspects of this case.” The district court foun d A.M. to be competen t to testify and ruled
that appellant’s counsel could “inquir[e] into [A.M.] on her mental illness for credibility or
bias purposes.” We discern no error by the district court in so ruling.
The district court properly assessed A. M.’s competency and concluded the issue
raised by appellant to be one of credibility and not competency . “A competency
determination is not the same as a credibility determination.” State v. Sime, 669 N.W.2d
922, 926 (Minn. App. 2003). Though a witne ss’s competency to testify is determined by
the district court, credibility—which speaks to “the weight to assign the testimony”—is
solely the province of the finder of fact. Id. (quoting State v. Lanam, 459 N.W.2d 656,
660 (Minn. 1990)). Once the district court had made its findings that A.M. understood her
oath and could correctly relate the facts to which she would testify, the issue of competency
was resolved. Hunt, 615 N.W.2d at 300. Any further questions regarding the veracity of
A.M.’s testimony were questions of credibility—an issue solely within the province of the
jury. Sime, 669 N.W.2d at 926. The jury was ma de aware of A.M.’s delusions and they
were free to take them into account when weighing the cred ibility and value of A.M.’s

6
testimony. The district court did not abuse its discretion in finding A.M. competent to
testify.
B. Lack of Criminal Charges Against Victim

Though appellant agreed th e jury may hear evidence that she had made allegations
that the victim sexually assaulted her, which resulted in his subsequent arrest and detention,
appellant argues that the district court erred wh en it allowed the jury to also learn that no
criminal charges against the victim resulte d from her allegations. Appellant’s primary
argument is that this evidence, which “sug gested [appellant] fabricated very serious
charges against [the victim] and caused him to spend several days in jail” in order to
“facilitate the burglary,” was highly prejudicial and theref ore inadmissible pursuant to
Minn. R. Evid. 403 because “ its probative value [was] subs tantially outweighed by the
danger of unfair prejudice.” She argues that th is evidence invited speculation by the jury
that she had fabricated the sexual assa ult claims to fac ilitate the burglary. 1 The district
court allowed the evidence, concluding that th e “[t]here is some pr obative value to this
information,” as it would help contextualize the facts of this case, and “[t]he potential for
unfair prejudice [was] low.”
“Rulings on evidentiary matters rest within the sound discretion of the district court
and will not be reversed on appeal absent a clear abuse of discretion.” In re Source Code

1 Appellant argues additionally that admission of this evidence constituted impermissible
vouching for the victim’s credibility. We are not convinced. The state may not vouch for
or against the credibility of any witness. State v. Koskela, 536 N.W.2d 625, 630 (Minn.
1995). Instead of vouching, th e jury was accurately told that the victim was not charged
with the crime alleged by appellant.

7
Evidentiary Hearings, 816 N.W.2d 525, 537 (Minn. 2012). The district court did not abuse
its discretion in concluding this evidence shoul d be allowed. As the district court noted,
the parties had already “agreed to allow testimony of crimin al sexual conduct allegations
made by [appellant] against the victim.” Once the jury heard this evidence, it follows that
there is probative value in the jury learning that he was not charged with sexual assault.
Furthermore, rule 403 does not prevent ad mission of all prejudicial evidence—the
probative value must be “substantia lly outweighed by the danger of unfair prejudice.”
Minn. R. Evid. 403 (emphasis ad ded). “[T]he term prejudice in Rule 403 does not mean
the damage to the opponent’s case that resu lts from the legitimate pr obative force of the
evidence; rather, it refers to the unfair advantage that resu lts from the capacity of the
evidence to persuade [the jury] by illegitimate means.” State v. Mosley, 853 N.W.2d 789,
797 (Minn. 2014) (quotations omitted). Appellant has fail ed to demonstrate how the
evidence in question is “unfair.” Instead, it is evidence from whic h a jury could have
legitimately “drawn a logical inference assisting, even though remotely, the determination
of the issue in question.” See State v. Schulz, 691 N.W.2d 474, 478 (Minn. 2005). As such,
the district court correctly considered ru le 403 and did not abuse its discretion in
concluding that the probative value of this testimony was not substantially outweighed by
the danger of unfair prejudice.
C. Prosecutorial Misconduct

In a pretrial order, the district court prohibited any witness from testifying about
appellant’s prior drug use. However, durin g the testimony of a police officer who had
investigated the burglary, the following exchange occurred:

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Q: And did [K.F.] tell you how the [appellant] appeared
upon coming to her residence?
A: She looked like she was dirty like she was on drugs,
based on [K.F.’s] past experience of seeing the [appellant].

This testimony was a clear violation of the district court’s pretrial order.
Appellant claims that the prosecutor’s fa ilure to adequately prepare the witness was
misconduct. Because appellant alleges prosec utorial misconduct and did not object to it
during trial, we apply the modified plai n-error standard to the alleged error.
2 See State v.
Ramey, 721 N.W.2d 294, 302 (Mi nn.2006). By this standa rd, the defendant must
“demonstrate both that error occurred and that the error was plain.” Id. If such a showing
is made, the burden shifts to the prosecution to demonstrate a lack of prejudice; in other
words, that the misconduct did not affect substantial rights. Id. A prosecutor’s failure to
prepare their witnesses prior to trial and su bsequent eliciting of inadmissible testimony
may constitute misconduct. State v. Richmond, 214 N.W.2d 694, 695 (Minn. 1974).
We will assume without so finding that the prosecutor committed misconduct by
failing to adequately prepare the officer and we conclude this is plain error. However, we
conclude that the misconduct did not affect appellant’s substantial rights.
The eliciting of inadmissible evidence by a prosecutor due to inadequate preparation
of witnesses, even if unintentional, may in certain circumstances justify reversal. Id. at
695. However, the unintentional admission of inadmissible evidence is not reversible error

2 We note that appellant’s trial counsel stated that he “[did]n’t think that the county attorney
failed to prepare their witnesses.”

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if the statement was merely a “passing” reference, and the evidence against the defendant
was “overwhelming.” State v. Haglund, 267 N.W.2d 503, 505-06 (Minn. 1978).
The evidence was overwhelming. The st ate presented a plethora of evidence
supporting the jury’s determination including witness testimony which, placed appellant at
the victim’s home while he was away, estab lished that she had the victim’s car (and
therefore access to the victim’s garage and ho me), established that the victim’s car was
later found to have paint scratches in it matc hing the safe, and established that appellant
confessed to the theft of the safe and ha d hid money from the safe. Against this
“overwhelming” evidence must be weighed th e one inadmissible “passing” reference to
prior drug use. Id. This one reference in no way related to or negated any other evidence
considered by the jury. Theref ore, this error did not affect appellant’s substantial rights
and does not justify reversal.
D. Lack of Accumulated Errors
Appellant alternatively argues that the ab ove alleged errors, even if not justifying
reversal on their own, do so when viewed cumulatively. “Cumulative error exists when
the cumulative effect of the errors and indiscretions, none of which alone might have been
enough to tip the scales, operate to the defendant’s prejudice by producing a biased jury.”
State v. Penkaty, 708 N.W.2d 185, 200 (M inn. 2006) (quotations omitted). However, as
detailed in our above analysis, we have c oncluded only a single error is presumed—
prosecutorial misconduct. Because only a single error occurred, there exists a lack of errors
to accumulate upon which to base a reversal.

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II. The district court did not abuse its di scretion in deciding appellant’s motions
for in camera review.

Prior to trial, appellant requested that the district court conduct an in camera review
of the following documents: (1) A.M.’s mental -health records, and (2 ) the recordings of
calls made by the victim while he was in jail. Appellant sought disclosure of all of those
records which the district court determined were relevant to this matter pursuant to State v.
Paradee, 403 N.W.2d 640, 642 (Minn. 1987). The district court declined to review the
mental-health records and, after in camera review of the jail call recordings, disclosed two
of fifteen recordings to appellant. Appellant challenges these decisions.
A. Mental-Health Records
The district court declined to review A. M.’s mental-health records, concluding that
appellant “ha[d] not made a plausible showing that [A.M.]’s psychological records [we]re
material and favorable to her defense” because “[A.M.] did not start showing any signs of
a mental condition until after [appellant] allege dly confessed to her.” A district court’s
denial of a motion for in camera review is reviewed for an abuse of discretion. State v.
Hokanson, 821 N.W.2d 340, 349 (Minn. 2012).
“Criminal defendants have a broad right to discovery in order to prepare and present
a defense.” Id. However, in camera review is not an absolute right. Hokanson, 821
N.W.2d at 349. Against this right must be balanced an individuals’ rights to privacy in
their privileged and confidential information, id., including A.M.’s right to privacy in her
personal mental-health records, made confid ential by the Minnesota Government Data
Practices Act, Minn. Stat. § 13.384 (2020), and the Minnesota Health Records Act, Minn.

11
Stat. § 144.294 (2020). In camera review strikes the proper balance between these
competing interests. Id. To justify review, “the defendant must first establish a plausible
showing that the information sought would be both material and favorable to his defense.”
Id.
The district court did not abuse its disc retion in declining to review A.M.’s
mental-health records. As we describe above, the district court properly concluded that,
despite A.M.’s delusions, she was competent to testify. Appellant did not make “a
plausible showing that the information sought would be both material and favorable to his
defense.” See id. The district court did not abuse its discretion in declining to conduct an
in camera review of A.M.’s mental-health records.
B. Review of Victim’s Jail Calls
The district court judge, pursuant to Paradee, 403 N.W.2d 640 , conducted an in
camera review of calls made by the victim while in jail. Once a pa rty has established a
“plausible showing that the information sought would be both material and favorable to his
defense,” the district c ourt should conduct an in camera review of such information.
Hokanson, 821 N.W.2d at 349-50. In conducting an in camera review, a district court must
“determin[e] what if any of the information in the records might help in the defense,” and
only disclose such information or documents to the requesting party. Id. at 350 (quotation
omitted). Information that is “irrelevant” or “duplicative” need not be disclosed. Id. On
appeal, “the relevant question is whether the di strict court abused its discretion in either
failing to disclose some records requested by appellant or in not allowing such records to
be used at trial.” Id.

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In this matter, the district court review ed recordings of these telephone calls,
determined that only two of the calls contained information that was relevant and useful to
appellant’s defense, and ordered them releas ed to appellant. We have obtained and
reviewed the recordings of all the telephone calls reviewed in camera by the district court.
Based on our independent review of these recordings, we conclude the withheld recordings
would have been neither relevant nor helpful to appellant’s defense. As such, the district
court did not abuse its discretion in restricti ng defense counsel’s access to all but two of
them. See id.
III. Appellant’s Pro Se Arguments

Finally, appellant raises a number of issues in a pro se brief. However, all but one
of the claims contained therein are mere rest atements of the arguments already made by
her counsel in her primary brief and we do not readdress those claims. As to the new issue
raised by appellant, she claims that witne sses K.F. and A.M. we re accomplices and,
therefore, the district court erred by failing to instruct the jury on the law regarding
accomplice testimony. State v. Strommen, 648 N.W.2d 681, 689 (Minn. 2002) (“As a rule,
[district] courts have a duty to instruct juries on accomplice testimony in any criminal case
in which it is reasonable to consider a ny witness against the defendant to be an
accomplice.”).
The threshold question which must be an swered is whether K.F. and A.M. may
legally be considered “accomplices” of appella nt. “The general test for determining
whether a witness is an accomplice for purposes of section 634.04 is whether he could have

13
been indicted and convicted for the crime with which the accused is charged.” State v. Lee,
683 N.W.2d 309, 314 (Minn. 2004) (quotations and citations omitted).
Appellant argues that K.F. and A.M. be came accomplices as a result of their
complicity in concealing the crim e and aiding appellant in hi ding a portion of the stolen
money. Because the record re flects that neither K.F. nor A. M. became involved in the
handling of the stolen mone y until after the crime had be en committed, they are not
accomplices to the crime committed by appellant. Neither of them played any part in the
burglary (i.e. the taking of the safe from the victim’s home) itself. Furthermore, while the
record reflects that K.F. may have been present in the victim’s home with appellant at some
point, “mere presence at the scene” does not result in an individual automatically becoming
an accomplice. State v. Palubicki, 700 N.W.2d 476, 487 (Minn. 2005) (quotation omitted).
Because K.F. and A.M. were not accomplices, the district court did not err in not giving an
accomplice-testimony instruction to the jury.
Affirmed.