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This opinion is nonprecedential except as provided by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
A20-1006

State of Minnesota,
Respondent,

vs.

Brian Kenneth Larkins,
Appellant.

Filed August 23, 2021
Reversed and remanded
Frisch, Judge

Freeborn County District Court
File No. 24-CR-19-1336

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

David J. Walker, Freeborn County Attorney, Abigail H. Lambert, Assistant County
Attorney, Albert Lea, Minnesota (for respondent)

Cathryn Middlebrook , Chief Appellate Public Defender, Benjamin J. Butler, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Johnson, Presiding Judge; Bryan, Judge; and Frisch,
Judge.
NONPRECEDENTIAL OPINION
FRISCH, Judge
Appellant argues that hi s domestic-assault conviction should be (1) reversed
because the state’s evidence is insufficient to sustain the jury’s verdict , or alternatively,
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(2) reversed and remanded because the prosecutor committed misconduct by misstating the
elements of the offen se during her closing argument. We reject appellant’s sufficiency
challenge. But because the prosecutor committed plain error prejudicing appellant’s
substantial rights, we reverse and remand for a new trial to protect the integrity of the
proceeding.
FACTS
Domestic-Assault Charge and Pretrial Proceedings
The state charged appellant Brian Kenneth Larkins with one count of felony
domestic assault in violation of Minn. Stat. § 609.2242, subds. 1, 4 (2018), alleging
generally that “[o]n or about July 28, 2019 . . . the defendant did intentionally inflict or
attempt to inflict bodily harm upon a family or household member . . . within ten years of
the first of any combination of two or more previous qualified domestic violence -related
offense convictions.”
One day before the scheduled trial, the state filed a list of proposed jury instructions.
The state requested a model instructi on defining the crime of domestic assault generally
and a model instruction defining the specific elements of domestic assault with intent to
cause fear. The model definition of the general crime provides :
Under Minnesota law, whoever, within ten years of the
first of any combination of two or more previous qualified
domestic violence-related offense [convictions . . . ],

[1] commits an act with intent to cause fear in another
of immediate bodily harm or death

[or]

3
[2] intentionally inflicts or attempts to inflict bodily
harm upon another

is guilty of a crime, if the person assaulted is a member of the
defendant ’s family or household.
10 Minnesota Practice, CRIMJIG 13.49 (2020). The model definition requested by the
state as to the elements of the offe nse provides, in relevant part:
The elements of domestic assault are:

First, the defendant assaulted [the victim].

The term “assault” as used in this (case) (charge) means
an act done with intent to cause (the victim) to fear immediate
bodily harm or death.

“Bodily harm” means physical pain or injury, illness, or
any impairment of a person ’s physical condition. It is not
necessary for the State to prove that the defendant intended to
inflict bodily harm or death, but only that the de fendant acted
with intent that [the victim] would fear that the defendant
would so act. In order for an assault to have been committed,
it is not necessary that there have been any physical contact
with the body of the person assaulted.

“With intent to” or “with intent t hat” means that the
actor either has a purpose to do the thing or cause the result
specified, believes that the act, if successful, will cause that
result.
10 Minnesota Practice , CRIMJIG 13.50 (2020). The state did not request the model
instruction regarding a felony offense based on the actual or attempted infliction of bodily
harm. See 10 Minnesota Practice, CRIMJIG 13.51 (2020).
The following evidence was received at trial.
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The Victim’s Testimony
The victim testified that on July 28, 2019, she live d in her home with her son, her
daughter, her son’s friend, and Larkins —her boyfriend at the time. The victim recalled
that on the evening of July 28, she was in her bedroom with one of her son’s friends
(A.V.H.) and Larkins. At some point, Larkins told A.V.H. to “shut the f -ck up.” The
victim told Larkins “that he could not talk to [her] friend that way.” Larkins elbowed the
victim in the face, grabbed her phone, and left the room.
The victim’s son exited his bedroom , confronted Larkins, and attempted to retrieve
the victim’s phone. A.V.H. meanwhile dialed 9 -1-1. Larkins allegedly went downstairs,
sat on the couch, and began punching himself while yelling, “She is hitting me.” The son
and Larkin s “tussle[d]” and the victim followed them to the dining room. The victim
recalled that Larkins “proceeded to hit me, come at me, threatening me. And I was trying
to calm him down . . . [a]nd he did not. And he swung at me and hit me in the face.” The
victim testified that Larkin s hit her “[w]ith a closed fist on [her] right cheek . . . [p]retty
hard. And it hurt really bad.” When asked what was going through her mind, the victim
stated, “At that point I was scared and didn’t know what was going to hap pen.” Police
officers arrived soon after, and the victim ran outside. She recalled speaking to the officers,
describing what had happened, and being “[d]istraught” at the time: “I was nervous, scared,
and I had just gotten assaulted.”
The victim also te stified about past domestic conduct involving Larkins. She
recalled an incident that occurred “about two weeks” before the reported domestic assault
where “it had gotten really rocky.” Larkins had allegedly told the victim she “had no choice
5
but to go wi th him” to Janesville, where he was working, and that he “stood over [her],
packed a bag for [her], and told [her she] was going with him.” She described him as
“towering” over her, “puffed up and big . . . like, he was a big[] old bull dog or something
that was just going to attack at any minute.” The victim recalled being “really scared” that
Larkins “was going to hit [her] or something,” and so she went with him. 1
The Victim’s Recorded Interview
A responding officer interviewed the victim in her fr ont yard and recorded the
interview on his body -worn camera. The jury viewed a portion of the recording. In the
interview, the victim denied hitting Larkins and claimed that Larkins hit her. She recalled
that she and Larkins had “been arguing for days” and that she had “been trying to get him
to leave for days” but that “he wo [uld]n’t leave.” She later stated, “I just wanted him to
leave for a couple hours and he wouldn’t even do that. He wouldn’t give me peace in my
own room, he wouldn’t give me anyth ing.” The victim told the officer that Larkins
“pinched the sh-t out of [her] and left a bruise on [her] t-t” the day before, showing the
officer a bruised spot on the upper -left portion of her chest.
In describing the alleged assault, the victim claimed, “He got into [ A.V.H.]’s face,
got into my face, jerked my phone from me , and punched me in the face.” The victim
described how she “turned and [Larkins] hit [her].” The officer asked the victim why she
turned, and she explained, “Because I saw him coming. He was coming at me and I turned

1 The district court gave the jury a cautionary instruction regarding the limited purpose of
the relationship evidence. See Minn. Stat. § 634.20 (2018) (providing that evidence of
domestic conduct is generally admissible).
6
to get away , and I just wanted my phone.” The victim stated, “He came downstairs. . . .
And he said we were beating him and we weren’t beating him. I was trying to get away
from him, trying to get my phone from him. And he wouldn’t give me my phone.” 2
The Son’s Testimony and Recorded Interview
The victim’s son testified that he was in his room when he heard the victim begin
screaming at Larkins. The son went to the victim’s room and Larkins “pushed [him] out
of the way and went downstairs .” The son followed Larkins and “grabbed the [victim’s]
phone out of [Larkins’] hand.” The son then watched as the victim attempted to calm
Larkins, standing approximat ely three feet from Larkins and holding her hands in the air .
Larkins then punched the victim in the face. The police arrived soon after, and the son
described the victim as “[c]rying, screaming, mad, [and] upset.” A responding officer
conducted a video-recorded interview with the son, and the state published portions of the
interview to the jury. The son’s statements in the interview were generally consistent with
his testimony.
The son also testified about past domestic conduct with Larkins. He claim ed that
sometime in the month or two preceding the alleged assault, Larkins “got mad at [him]
because [he] was not doing the dishes.” The son testified, “[H]e started yelling at me, he
had got up in my face, he had chest bumped me back towards the thing.” When asked to

2 The state introduced the victim’s recorded interview without objection, and the published
portion of the interview therefore became substantive evidence regardless of potential
objections which were not raised. See State v. Jackson, 655 N.W.2d 828, 833 (Minn. App.
2003), review denied (Minn. Apr. 15, 2003).
7
elaborate, the son testified that Larkins had come “within centimeters” of the son’s no se,
that Larkins was taller, and that Larkins “physically pushed” the son with his chest.
A.V.H.’s Testimony and Recorded Interview
A.V.H. testified tha t she was in the hallway outside the victim’s bedroom when
Larkins told her to “shut the f-ck up” and that she left the room when Larkins and the victim
started arguing. A.V.H. went into the son’s room, heard the victim tell Larkins “not to hit
her or lay a hand . . . on her,” returned to the hall, and saw the victim “very upset” and
“crying and yelling.” A.V.H. also testified that Larkins was “yelling” and “very angry.”
A.V.H. next described how she, the victim, the victim’s son, and Larkins began “figh ting”
in the hallway about the victim’s phone. She claimed that Larkins then “started to push us
around.” After everyone moved downstairs, A.V.H. dialed 9-1-1. She watched Larkins
begin to hit himself, screaming that he was being hit and that the others had guns, all while
A.V.H. was on the phone. A.V.H. claimed that Larkins “was pushing” the victim. Soon
after, she saw Larkins “hit [the victim] in the face. ” A responding officer conducted a
video-recorded interview with A.V.H. The jury heard A.V.H.’s statements in the
interview, which were generally consistent with her trial testimony.
Officer Testimony
Officers with the Albert Lea Police Department testified about their investigation
and observations. A responding officer testified that the victim “was very hysterical,
agitated, visibly shaking.” The victim told the officer that Larkins had punched her and
pointed to her face. The officer observed “bruising and some redness on her face.” A
responding sergeant arrived and spoke with the vic tim’s son and heard him describe how
8
Larkins had punched the victim. Another officer spoke with A.V.H., who described her
observations of the altercation. Responding officers eventually arrested Larkins.
Jury Instructions
Larkins chose not to testify at trial. The parties proceeded to review and edit the
jury instructions, and neither attorney raised any issues regarding the finalized instructions.
The district court defined the crime of domestic assault as follows:
Under Minnesota law, whoever commit s an act with
intent to cause fear in another of immediate bodily harm or
death or intentionally inflicts or attempts to inflict bodily harm
upon another is guilty of a crime, if the person assaulted is a
member of the defendant’s family or household.
The district court then defined the assault element of the crime in the following
manner, consistent with the model instruction proposed by the state :
The term “assault” as used in this case means an act
done with intent to cause [the victim] to fear immedia te bodily
harm or death.
“Bodily harm” means physical pain or injury, illness, or
any impairment of a person’s physical condition. It is not
necessary for the State to prove that the defendant intended to
inflict bodily harm or death, but only that the de fendant acted
with intent that [the victim] would fear that the defendant
would so act. In order for an assault to have been committed,
it is not necessary that there have been any physical contact
with the body of the person assaulted.
“With intent to” o r “with intent that” means that the
defendant either has a purpose to do the thing or cause the
result specified [or] believes that the act, if successful, will
cause that result.
(Emphasis added.) Neither party objected. After defining the elements of t he crime, the
district court instructed the jury, “If you find that each of these elements has been proven
9
beyond a reasonable doubt, the defendant is guilty. If you find that any element has not
been proven beyond a reasonable doubt, the defendant is not guilty.”
Closing Arguments
The prosecutor urged the jury to find Larkins guilty, emphasizing testimony that
Larkins pushed multiple people, shouted, took the victim’s phone, and punched the victim
in the face. The prosecutor framed the assault element a s follows: “The State needs to
prove [Larkins] intentionally inflicted or attempted to inflict bodily harm on [the victim].”
Larkins did not object. The prosecutor proceeded to argue that testimony and other
evidence demonstrated the intentional inflicti on of bodily harm as follows:
You have three witnesses stating that [Larkins] was the
aggressor and that he assaulted [the victim] and inflicted bodily
harm onto her. [The victim] testified she was just simply trying
to calm [Larkins] down and was feet aw ay from him when
[Larkins] came up to her and punched her in the right side of
the face near the jawline area.
[A.V.H.] told you . . . she did see [Larkins] hit [the
victim] in the face.
[The son] told you that [Larkins] ran up to his mom and
punched her in the face.
The prosecutor also argued that photographs of the victim’s face and her testimony
regarding her pain were consistent with the infliction of actual bodily harm. She urged that
“[t]he testimony and evidence in this case proves that [Larkins] intentionally caused bodily
harm to [the victim]. Element 1 is met.”
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Verdict, Conviction, Sentence, Appeal, and Postconviction Proceedings
The jury found Larkins guilty. The district court adjudicated Larkins guilty and
sentenced him to 30 months’ imprisonment. Larkins appealed and we stayed the appeal so
Larkins could pursue postconviction relief . Larkins secured an amended sentence of 26
months’ imprisonment and we reinstated this appeal.
DECISION
Larkins contends that the evidence is insufficient to sustain his conviction or,
alternatively, that the prosecutor committed misconduct during her closing argument
warranting a new trial. The state argues that the evidence is sufficient to sustain the
conviction and that the prosecutor did not commit prejudicial, plainly erroneous
misconduct.
I. The circumstantial evidence is sufficient to sustain the conviction.
Larkins urges us to reverse his conviction because the state failed to prove that he
committed an act with the specific intent to cause fear. The state urges us to affirm because
the evidence is sufficient to support a verdict based on either or both means of domestic
assault—an act with intent to cause fear or the actual infliction of harm. Larkins insists
that domestic -assault-fear and domestic -assault-harm are separate offenses and that we
must review the sufficiency of the evidence with respect to domestic -assault-fear because
11
it was the crime defined to the jury. 3 The parties’ disagreement as to the nature of the
offense and the focus of our review potentially present threshold questions.
A. We assume without deciding that we must review the sufficiency of th e
evidence as to the elements of domestic -assault-fear.
Minn. Stat. § 609.2242, subd. 4, provides, “ Whoever violates the provisions of this
section . . . within ten years of the first of any combination of two or more previous
qualified domestic violence -related offense convictions . . . is guilty of a felony .” Minn.
Stat. § 609.2242, subd. 1, provides :
Whoever does any of the following again st a family or
household member . . . commits an assault . . . :
(1) commits an act with intent to cause fear in another
of immediate bodily harm or death; or
(2) intentionally inflicts or attempts to inflict bodily
harm upon another.

The state proposed, and the district court gave, instructions defining the elements of
felony domestic assault based on the commissio n of “an act with intent to cause fear in
another of immediate bodily harm or death.” Minn. Stat. § 609.2242, subd. 1(1). The state
contends that subdivision 1(1) and 1(2) define separate means of committing domestic
assault and that we may review the su fficiency of the evidence as to either or both means.
Larkins argues that the two provisions define separate offenses but that regardless of that
distinction, our review should be limited to the elements of the crime defined by the district

3 Larkins does not argue that the district court plainly erred in instructing the jury on the
elements of the crime or that the district court erred by constructively amending the charge
against him.

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court.4 We need not decide either question because, even if we accept Larkins’s framing
and limit our review to the evidence of his specific intent to cause fear, we conclude that
the evidence is sufficient to sustain the conviction.
B. The circumstantial-evidence test applies.
We must first determine the appropriate standard of review. To prove Larkins guilty
of felony domestic -assault-fear, the state was required to establish beyond a reasonable
doubt that: (1) Larkins committed an act with intent to cause the victim to fear immediate
bodily harm or death, ( 2) the victim was a household member, and ( 3) the assault took
place on or about July 28, 2019, in Hennepin County. Minn. Stat. § 609.2242, subd. 1(1). 5
The phrase “‘[b]odily harm’ means physical pain or injury, illness, or any impairment of
physical condition.” Minn. Stat. § 609.02, subd. 7 (2018). The phrase “‘with intent to’ . . .
means that the actor either has a purpose to do the thing or cause the result specified or
believes that the act, if successful, will cause the result.” Id., subd. 9(4) ( 2018). A
domestic-assault-fear offense is a specific-intent crime. Fleck, 810 N.W.2d at 309. Larkins
challenges the sufficiency of the evidence only as to the assault -fear element.

4 The first issue implicates the validity of our holding in State v. Dalbec , in which we
explained that the domestic -assault statute defines “alternative means by which an assault
may be committed.” 789 N.W.2d 508, 512 -13 (Minn. App. 2010) (emphasis ad ded),
review denied (Minn. Dec. 22, 2010). The supreme court subsequently decided State v.
Fleck, explaining that assault -harm is a general -intent crime whereas assault -fear is a
specific-intent crime. 810 N.W.2d 303, 309 -12 (Minn. 2012). We have not ye t decided
whether Fleck abrogated Dalbec by implication, and we need not decide the question here.

5 Larkins stipulated to the existence of at least two qualifying domestic -violence-related
convictions for the purposes of felony enhancement pursuant to M inn. Stat. § 609.2242,
subd. 4.
13
In considering the sufficiency of the evidence, the applicable standard of review
depends on whether the jury reached its finding of guilt based on direct evidence or
circumstantial evidence. State v. Petersen , 910 N.W.2d 1, 6 (Minn. 2018). If the state
proves a disputed element through circumstantial evidence, we first determine the
circumstances proved by the state and then consider whether those circumstances preclude
any reasonable inference other than guilt. Loving v. State, 891 N.W.2d 638, 643 (Minn.
2017). Circumstantial evid ence is “evidence from which the factfinder can infer whether
the facts in dispute existed or did not exist” and “requires an inferential step to prove a
fact.” State v. Harris, 895 N.W.2d 592, 599 (Minn. 2017) (quotation omitted). “[I]ntent
is a state of mind that is usually proved with circumstantial evidence.” State v. Balandin,
944 N.W.2d 204, 217 (Minn. 2020). “ Intent is inf erred from words and acts of the actor
both before and after the incident.” Id. (quotation omitted); see also State v. Cooper, 561
N.W.2d 175, 179 (Minn. 1997). Because the state presented only circumstantial evidence
of Larkins’s specific intent to cause the victim to fear immediate bodily harm or death, we
apply the circumstantial-evidence test.
C. The state proved extensive circumstances consistent with the verdict.
In the first step, we identify the circumstances proved by the state. Loving, 891
N.W.2d at 643. “We defer at this stage to the jury’s acceptance of the [s]tate’s evidence
and its rejection of any evidence in the record that is inconsistent with the circumstances
proved by the [s]tate.” Id. The state proved the following relevant circumstances.
Sometime in either June or July of 2019, Larkins yelled at the victim’s son, got
within centimeters of t he son’s face, and pushed the son backwards with his chest.
14
Approximately two weeks before the alleged assault, Larkins engaged in intimidating
behavior by ordering the victim to pack a bag while “towering” over her, “puffed up and
big” like he was “going to attack at any minute,” causing the victim to fear that he would
hit her. Larkins and the victim had “been arguing for days” before the assault and she “had
been trying to get him to leave” without success . The day before the assault, Larkins
pinched and bruised the victim’s breast. On the day of the assault, Larkins told A.V.H. to
“shut the f -ck up.” Larkins “got into [ A.V.H.]’s face” and “got into [the victim’s] face.”
The victim told Larkins “that he could not talk to [her] friend that way ,” and Larkins hit
the victim in the face. Larkins then took the victim’s phone and left the room. When
A.V.H. dialed 9 -1-1, Larkins began punching himself, screaming that he was being
punched and that the others in the home had guns. The son and Larkins “tussle[d]” and the
victim followed them to the dining room. The victim held her hands up in the air and
attempted to calm Larkins. Larkins “c[a]me at” the victim, “threatening” her. Further, the
victim “was scared and didn’t know what was going to hap pen.”6

6 Larkins contends that “[t]he fact that the alleged victim may or may not have been scared
is irrelevant; what matters is the defendant’s intent to cause such fear.” It is true that “t he
intent of the actor, as contrasted with the effect upon the victim, [is] the focal point for
inquiry.” State v. Ott, 189 N.W.2d 377, 379 (Minn. 1971). But Larkins conflates relevance
with sufficiency. The victim’s fear is neither necessary nor sufficient to prove Larkins’s
intent. See State v. Hough , 585 N.W.2d 393, 396 (Minn. 1998) (explaining that evidence
of effect on victim is frequently introduced but “not essential”). But a victim’s fear remains
relevant. See State v. Schweppe , 237 N.W.2d 609, 614 ( Minn. 1975) (explaining that
victim’s reaction to threat was circumstantial evidence relevant to defendant’s intent in
making the threat). Here, the victim’s reaction to Larkins’s conduct was a relevant, but not
dispositive, circumstance proved consistent with the j ury’s verdict.
15
D. The circumstances proved preclude any reasonable inference other than
guilt.
We next consider whether the circumstances proved preclude any reasonable
hypothesis inconsistent with guilt. Loving, 891 N.W.2d at 643. “We give no deference to
the jury’s choice between reasonable inferences at this second step.” Harris, 895 N.W.2d
at 601. “We review the circumstantial evidence not as isolated facts, but as a whole.” State
v. Silvernail, 831 N.W.2d 594, 599 (Minn. 2013).
Larkins suggests that the circumstances do not support a finding of an act committed
with specific intent to cause fear because Larkins did not “overtly or impliedly threaten”
the victim, “cock his fist ,” brandish a weapon, or “imply that he might hit [ the victim] if
she did not do wh at he wanted.” Larkins asserts that he “did not do any of the things that
underlie assault-fear convictions.” Similarly, Larkins compares the evidence of the alleged
assault with the relationship evidence of his intimidating behaviors, arguing that the
relationship evidence was a more plausible showing of domestic -assault-fear. But the fact
that other circumstances might have demonstrated specific intent to cause fear more
definitively is not dispositive of whether the circumstances proved demonstrate sp ecific
intent to cause fear . The question is whether the circumstances in their totality supported
a reasonable inference of guilt and precluded any reasonable inconsistent hypothesis.
Loving, 891 N.W.2d at 643.
On this record, the circumstances proved do exactly that . The state presented
relationship evidence of Larkins’s past intimidating conduct toward both the victim and
the victim’s son, which served to “illuminate the history of the relationship” and “put the
16
crime charged in the context of the relationship between the two.” State v. McCoy , 682
N.W.2d 153, 159 (Minn. 2004). The prior context is an important circumstance proved
because, “[o]bviously, evidence showing how a defendant treats his . . . household
members . . . sheds light on how the defendant interacts with those close to him, which in
turn suggests how the defendant may interact with the victim.” State v. Valentine , 787
N.W.2d 630, 637 (Minn. App. 2010), review denied (Minn. Nov. 16, 2010). Similar to
previous threatening domestic conduct, the jurors heard how Larkins “got into [ A.V.H.’s
and the victim’s] face[s].” Larkins was hostile to A.V.H., and when the victim told Larkins
not to speak to A.V.H. in that manner, Larkins struck her in the face. He followed t hat
hostility by taking the victim’s phone away from her and fleeing downstairs. When A.V.H.
called the police, Larkins pivoted in an attempt to paint others in the house as the
aggressors. And despite the victim’s attempts to calm Larkins , his violent b ehavior
continued to escalate, culminating when he punched the victim in the face.
Context matters, see Silvernail, 831 N.W.2d at 599, and in this case, the jury heard
how Larkins’s conduct escalated from aggressive posturing and shouting to striking the
victim in the face. Larkins’s behavior became more erratic as he took the victim’s phone,
pushed the others in the hallway, punched himself repeatedly while screaming, and
grappled with the victim’s son. These actions were so frightening that A.V.H. sought
emergency police assistance. And even after the victim tried to calm Larkins, holding her
hands in the air, the situation escalated to the point that Larkins came at the victim,
“threatening” her, and punched her in the face. Viewed in totality, the ci rcumstances
proved are consistent with only one rational hypothesis: that Larkins committed an act with
17
the specific intent to cause the victim to fear immediate bodily harm or death. Any oth er
hypothesis is unreasonable.
II. The pro secutor plainly erred by m isstating the elements of the offense,
prejudicing Larkins’s substantial rights and requiring a new trial.
Larkins contends that the prosecutor committed misconduct by misstating the
elements of the offense during closing arguments and informing the jury that it could find
Larkins guilty of assault-harm. The state contends that the prosecutor did not commit plain
error and that any potential misconduct did not prejudice Larkins’s substantial rights or
affect the fairness or integrity of the proceeding.
Larkins did not object to the prosecutor ’s statements during closing argument. We
review unobjected -to claims of prosecutorial misconduct under a modified plain -error
framework. State v. Dobbins, 725 N.W.2d 492, 508 (Minn. 2006). Under that framework,
the defendant “must demonstrate that the stated conduct constitutes an error that is plain.”
Id. If the defendant demonstrates an error that is plain, the burden shifts t o the state to
demonstrate that the error did not affect the defendant’s substantial rights. Id. If the state
fails to carry its burden, then “[w]e will correct the error only if the fairness, integrity, or
public reputation of the judicial proceeding is seriously affected.” Id.
A. The prosecutor plainly erred by contradict ing the district court’s
instructions regarding a necessary element and urging the jury to find
Larkins guilty on that basis.
Larkins bears the initial burden of demonstrating that the prosecutor committed
plainly erroneous misconduct. State v. Wren , 738 N.W.2d 378, 39 3 (Minn. 2007). He
contends that the prosecutor plainly erred by contradicting the district court’s instructions
18
on the assault element of the offe nse, materially misstating the law on the element, and
urging the jury to find him guilty on the basis of actual infliction of harm. The state
contends that the prosecutor’s remarks were not plainly erroneous. 7
An error is plain if it “contravenes case l aw, a rule, or a standard of conduct .” Id.
(quotation omitted) . A prosecutor “may reference the law during trial” but may not
misstate the law . State v. Cao , 788 N.W.2d 710, 716 (Minn. 2010); see also State v.
McDaniel, 777 N.W.2d 739, 751 (Minn. 2010); Minn. R. Crim. P. 26.03, subd. 19(3) (“Any
party may refer to the instructions during final argument.”) . A misstatement of law may
constitute plainly erroneous misconduct. E.g., State v. Strommen, 648 N.W.2d 681, 689-90
(Minn. 2002) (addressing mi sstatements of law on abandonment and burden of proof) ;
State v. Shannon , 514 N.W.2d 790, 791 -92 (Minn. 1994) (addressing misstatement of
elements of heat -of-passion manslaughter). Further, “it is solely the responsibility of the
court to instruct juries on the law necessary to render a verdict. ” Cao, 788 N.W.2d at 716.
“When evaluating prosecutorial misconduct during a closing argument, we look to the
closing argument as a whole, rather than t o selected phrases and remarks.” State v. Smith,
876 N.W.2d 310, 335 (Minn. 2016) (quotation omitted).

7 The state suggests that the district court also instructed the jury on domestic -assault-
harm. Although the district court gave an instruction defining the general crime, it gave
instructions only as to the elements of domestic -assault-fear and clarified those elements’
application to the charge against Larkins, stating: “The term ‘assault’ as used in this case
means an act done with intent to cause [the victim] to fear immediate bodily harm or death.”
(Emphasis added.) And immediately f ollowing the instructions regarding the elements of
the offense, the district court instructed the jury: “If you find that each of these elements
has been proven beyond a reasonable doubt, the defendant is guilty. If you find that any
element has not been proven beyond a reasonable doubt, the defendant is not guilty.”
(Emphasis added.)
19
Here, the prosecutor plainly erred by contradicting the instruction given by the
district court regarding a necessary element of the offense . It is the district court’s duty to
instruct the jury on the law. Cao, 788 N.W.2d at 716. And though a prosecutor may
properly refer to the law, see id., the prosecutor’s closing argument here went far beyond
mere reference. The district court defined only the elements of domestic -assault-fear and
did not define the elements of domestic -assault-harm. Yet the prosecutor twice
characterized the first element of domestic assault as one of assault-harm, stating (1) “[t]he
[s]tate needs to prove [Larkins] intentionally inflicted or attempted to inf lict bodily harm
on [the victim]” and (2) “[t]he testimony and evidence in this case proves that [Larkins]
intentionally caused bodily harm to [the victim]. Element 1 is met.” This case is therefore
distinguishable from the circumstances in Cao, where the prosecutor’s challenge d
statement was rhetorical and not tantamount to a jury instruction. Id.
The state suggests that the prosecutor did not plainly err because her argument was
consistent with the charge set forth in the complaint , and Larkins had not ice of the state’s
assault-harm theory. And the state repeats its alternative -means argument, relying on
Dalbec to claim that the prosecutor’s statements were not error because the statute provides
alternative means of committing domestic assault. But th ese arguments do nothing to
justify a prosecutor’s act of defining a necessary element of the crime in contravention of
the district court’s instruction. And notably, the state fails to acknowledge that the
prosecutor argued in contravention of the state’ s own proposed jury instructions. We see
no merit in the state’s contention because, regardless of the charging language in the
complaint, the charge submitted to the jury was limited on its elements to one of domestic
20
assault based on an act committed wi th the specific intent to cause the victim to fear
immediate bodily harm or death. We conclude that t he prosecutor plainly erred by giving
a contradictory instruction on a necessary element and urging the jury to find Larkins guilty
on that basis.
B. The error prejudiced Larkins’s substantial rights.
Because Larkins has demonstrated plainly erroneous misconduct, the state bears the
burden of demonstrating that the error did not affect Larkins’s substantial rights. Dobbins,
725 N.W.2d at 508. “[T]he [s]tate must show that there is no reasonable likelihood that
the absence of the misconduct in question would have had a significant effect on the
verdict.” State v. Peltier, 874 N.W.2d 792, 803 -04 (Minn. 2016) (quotation omit ted). In
assessing prejudice to substantial rights, we may consider the strength of the state’s
evidence, the pervasiveness of the erroneous conduct, and the defendant’s ability to rebut
improper remarks. Id. at 805-06.
The state contends that any potent ial misconduct was not prejudicial because its
case was strong, defense counsel failed to object, and Larkins responded to the assault -
harm theory. Larkins contends that the error was prejudicial because (1) the state’s proof
of Larkins’s intent to cause the victim to fear immediate bodily harm or death was weak
and (2) the jury likely found Larkins guilty on a domestic -assault-harm theory because the
evidence for that charge was much stronger.
The strength of the evidence weighs in the state’s favor, but not overwhelmingly so.
Through witness testimony and video -recorded interviews, the state introduced ample
evidence from which the jury could infer Larkins’s specific intent to cause fear. Although
21
we have concluded that the evidence is sufficient to s ustain a conviction for domestic -
assault-fear, our review in that context differs from our consideration of the strength of the
state’s evidence on a claim of prosecutorial misconduct. Our sufficiency review requires
us to assume, on the basis of the guil ty verdict, that the jury accepted the state’s evidence
as true. See Loving, 891 N.W.2d at 643. But on a claim of prosecutorial misconduct, we
consider the strength of evidence to assess how a claimed error might have influenced the
verdict. See Peltier, 874 N.W.2d at 803 -04.8 Here, there were numerous inconsistencies
between testimony and recorded statements, and as Larkins has emphasized, there was no
direct evidence of clearer types of intent to cause fear, such as intimidation with weapons
or threats of violence.
The pervasiveness of the misconduct weighs heavily in Larkins’s favor. The
prosecutor (1) defined the assault -harm element, (2) recounted each witness’s testimony
and emphasized the physical act of Larkins punching the victim, (3) emphasi zed
corroborating evidence that the physical assault occurred, (4) argued that the redness on
the victim’s face and the fact of her pain “is enough . . . to find a defendant caused bodily
harm,” (5) argued that Larkins “intentionally caused ” this bodily harm, and (6) concluded
that the evidence proved the element based on the intentional infliction of bodily harm.
The prosecutor made limited references to the victim’s panic and distress, but the
arguments were aimed at preempting responsive arguments regar ding witness credibility.

8 The state conflates these frameworks, quoting State v. Moore , 438 N.W.2d 101, 108
(Minn. 1989), for the proposition that we assume the jury believed the state’s witnesse s.
The relevant language from Moore concerns a challenge to the sufficiency of the evidence,
not a claim of prosecutorial misconduct.
22
The prosecutor’s emphasis on the actual physical harm continued to pervade her rebuttal
argument.
Larkins had an opportunity to rebut the prosecutor’s challenged remarks either by
objecting or in the responsive closing argument. He failed to do so. This factor weighs in
the state’s favor.
The state suggested during oral argument that any potential prejudice was mitigated
by the district court’s cautionary instructions to the jury indicating that they should follow
the law define d by the court and ignore inconsistent statements of the attorneys. But the
state did not raise this argument in its responsive brief, and so it is forfeited. See State v.
Tracy, 667 N.W.2d 141, 145 (Minn. App. 2003) (declining to consider argument raised for
first time at oral argument).
Larkins’s argument regarding the strength of the state’s case of domestic -assault-
harm is also persuasive. The potential prejudice of the prosecutor’s improper arguments
was magnified because the state presented overwhelming evidence of the actual infliction
of harm and then focused on this evidence during closing argument as the basis for
returning a guilty verdict . We weigh this factor in Larkins’s favor.
On this record, the state’s arguments fail to convince us that “there is no reasonable
likelihood that the absence of the misconduct . . . would have had a significant effect on
the verdict.” Peltier, 874 N.W.2d at 803 -04 (quotation omitted). The state t herefore has
failed to demonstrate that the improper remarks did not affect Larkins’s substantial rights.
23
C. Reversal and remand is necessary to protect the integrity of the judicial
proceeding.
“If all three prongs of the test are met, we may correct the error only if it seriously
affect[s] the fairness, integrity, or public reput ation of judicial proceedings. ” Id. at 804.
Larkins contends that we “cannot countenance” the prosecutor’s argument “that the j ury
should find Larkins guilty of a crime on which the court did not instruct the jury” because
the error deprived him of his right to a fair trial. We agree that a new trial is warranted to
protect the integrity of the judicial proceeding. “Prosecutors have an affirmative obligation
to ensure that a defendant receives a fair trial ” and are obliged “to guard the rights of the
accused.” State v. Ramey, 721 N.W.2d 294, 300 (Minn. 2006) (quotation omitted). Where
the prosecutor proposed an instruction defi ning assault -fear, failed to object to the
instruction when it was given to the jury , gave a contradictory instruction to the jury on
assault-harm, and urged the jury to find Larkins guilty on that basis, the error implicates
fundamental concerns of fairne ss and integrity of the proceeding, warranting a new trial .
Reversed and remanded.