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This opinion is nonprecedential except as provided by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
A20-1382

State of Minnesota,
Respondent,

vs.

Derrick Lemar Forest,
Appellant.

Filed May 9, 2022
Affirmed
Jesson, Judge

Hennepin County District Court
File No. 27-CR-19-32094

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

Michael O. Freeman, Hennepin County Attorn ey, Adam E. Petras , Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Davi E. Axelson, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Wheelock, Presiding Judge; Jesson, Judge; and
Bryan, Judge.
NONPRECEDENTIAL OPINION
JESSON, Judge
After being stabbed in a parking lot, appellant Derrick Lemar Forest drove his
sports-utility vehicle (SUV) into both the assailant and a brick wall at 16 miles per hour.
The state charged Forest with first- and second-degree murder. The jury found Forest not
2
guilty of first-degree murder but guilty of second-degree murder.1 Forest now appeals his
conviction, arguing that he received ineffe ctive assistance of counsel and challenging
various rulings by the district court. Because Forest did not receive ineffective assistance
of counsel, and because he has not otherwise shown error, we affirm.
FACTS
The charges against Forest stem fro m the events of a Sunday morning in
December 2019.2 Forest met a friend that morning in a parking lot by House of Charity.3
The parking lot is almost en tirely enclosed by walls or barricades except for a vehicle
entrance on one side and a pedestrian entrance in a corner on the opposite side of the lot.
Forest sat in the driver’s seat of his SUV and his friend sat in the passenger’s seat. All of
a sudden, a man—the decedent—approached Forest’s SUV. The decedent opened the
SUV door and grabbed, punched, and repeatedly stabbed Forest with a kitchen knife.
Forest resisted the assault. He manage d to get his door closed and the SUV into
gear. But Forest did not leave the parking lot. Instead, he drove in a wide circle around a
parked car, between two yellow markers, and a ttempted to strike the decedent with his
SUV. Forest ended up paralle l to the parked car with the decedent between the two
vehicles. The decedent pounded on Forest’s window with his fists. Forest backed up and

1 The jury also foun d Forest not guilty of first-degr ee heat-of-passion manslaughter, a
lesser-included offense requested by Forest’s counsel.
2 The following is summarized from the evidence produced at trial by the state.
3 House of Charity provides housing for persons struggling with homelessness and
chemical addiction.
3
angled his SUV towards the decedent again, but the decedent retreated to the other side of
the parked car.
Forest repositioned his SUV yet again, but the decedent kept the parked car between
himself and Forest. Eventually, Forest drove away from the decedent toward the parking
lot exit. The decedent began to walk away from the parked car to the opposite exit. But
instead of leaving th e parking lot, Forest turned hi s SUV around and aimed it at the
decedent. The d ecedent began to run toward the exit, but the walls pr evented him from
leaving the lot anywhere except the corner. Forest accelera ted and struck the decedent,
colliding with the wall behind him. The impact totaled Forest’s SUV, knocked bricks off
the wall, and inflicted injuries that caused the decedent’s death. A surveillance camera in
the parking lot captured most of Forest’s movements.
The passenger, who broke her ankle duri ng the crash, called 911. When police
arrived, Forest showed them his stab wounds. The first officer on the scene noted that
Forest was “severely bleeding.” Paramedics ultimately took Forest to the hospital to treat
his injuries. The decedent was also taken to the hospital and died shortly thereafter.
The state charged Forest w ith second-degree murder. Forest pleaded not guilty in
February 2020 and requested a speedy trial, a lthough he then agreed to a date slightly
outside the usual 60-day range. But in March, the Chief Justice of the Minnesota Supreme
Court suspended all jury trials that were not currently underway.4 Over Forest’s objection,
the district court found good cause to continue the trial until June 2 020. Separately, the

4 Order Continuing Operations of the Courts of the State of Minnesota Under a Statewide
Peacetime Declaration of Emergency, No. ADM20-8001 (Minn. Mar. 20, 2020).
4
state sought to convene a gra nd jury proceeding to indict Forest for first-degree murder,
which was also delayed. Eventually, the gra nd jury returned an indictment, and the state
charged Forest with first-degree premeditated murder.
At trial in June 2020, the state began by calling three eyewitnesses to testify. The
first two were neighbors who observed some or all of the incident. The third was the
passenger, who relayed her perception of events from inside Forest’s SUV. The state
played the surveillance footage from the parking lot for th e jury. Then th e state called
police officers to testify, among them a polic e sergeant who reviewed the pre-crash data
collected by Forest’s vehicle. The sergeant explained that the airbag-control module in the
SUV took internal measur ements of the vehicle that went back five seconds before the
airbags deployed. This pre-crash data showed that Forest began accelerating at 4.4 seconds
before impact, reached a top speed of 22 miles per hour while heading towards the
decedent, applied the br akes at 0.5 seconds before imp act, and was traveling at 16 miles
per hour at the time of the collision.
Forest did not testify or present witnesses in his defense. Forest’s counsel requested
that the district court give a lesser-included jury instruction of first-degree heat-of-passion
manslaughter, and the court gr anted the request. The jury found Forest not guilty of
first-degree murder and first-degree heat-of-passion manslaughter but found him guilty of
second-degree intentional murder.
After the verdict, Forest moved for a downward durational departure. The state
opposed the motion and argued that the district court shou ld sentence Forest to the
5
maximum amount of time allowed by the pres umptive range. The district court denied
Forest’s departure motion and sentenced him to a term of 386 months in prison.
Forest appealed, and we granted his moti on to stay his direct appeal to pursue
postconviction relief. The distri ct court denied Forest’s pe tition for postconviction relief
without an evidentiary hearing. We dissolved the stay and now address Forest’s appeal.
DECISION
Forest argues that he is entitled to a ne w trial because he received ineffective
assistance of counsel in various respects. In a pro se supplemental brief, Forest further
contends that his conviction is not supported by sufficient evidence, that the district court
abused its discretion by excluding evidence of the decedent’s intoxication, that his right to
a speedy trial was violated, that the district court’s jury instructions were plainly erroneous,
that the prosecutor committed misconduct, and that the district court abused its discretion
by denying his motion for a durational departur e. We consider each claim in turn,
beginning with ineffective assistance of counsel.
I. Forest did not receive ineffe ctive assistance of counsel.
Forest’s appellate counsel contends that his trial counsel was ineffective for failing
to request a jury instructio n on second-degree unintentiona l felony murder, which is a
lesser-included offense of second-degree intentional murder. And Forest’s counsel argues
that his trial counsel was ineffective for failing to object to testimony by the passenger. In
his pro se brief, Forest asserts that coun sel was ineffective fo r failing to request a
self-defense instruction, for allegedly coercing Forest into waiving his right to testify, and
for requesting the first-degree heat-of-passion manslaughter lesser-included instruction.
6
To address these claims, we turn first to the Sixth Amendment of the United States
Constitution, which guarantees criminal defenda nts the right to effective assistance of
counsel. Strickland v. Washington , 466 U.S. 668, 684-86 (1984 ). We review claims of
ineffective assistance of counsel de novo. Taylor v. State , 887 N.W.2d 821, 823
(Minn. 2016).5 A defendant must satisfy the two-pronged Strickland test to prove a claim
of ineffective assistance of counsel: (1) th at “counsel’s representation fell below an
objective standard of reasonableness,” and (2) that “there is a reasonable probability that,
but for counsel’s unprofessional errors, the re sult of the proceeding would have been
different.” Zumberge v. State, 937 N.W.2d 406, 413 (Minn. 2019) (quotations omitted).
If a claim does not satisfy one of the Strickland prongs, the claim fails and we need not
reach the second prong. Swaney v. State, 882 N.W.2d 207, 217 (Minn. 2016).
The lack of an unintentional-murder instruction did not prejudice Forest.
To receive a new trial, Forest must s how that his counsel’s performance fell below
an objective standard of reasonableness by failing to request the second-degree
unintentional-murder instruction, and that there is a reasonable probability that the outcome
of his trial would have been different had his counsel requested the instruction. Zumberge,
937 N.W.2d at 413. We analyze whether Forest has shown this reasonable probability with
regard to the outcome of his trial in light of the totality of the evid ence presented to the
jury. Gates v. State, 398 N.W.2d 558, 562-63 (Minn. 1987).

5 When an appellant stays direct appeal to pursue postconviction relief, we review the
postconviction court’s decision using the same standard we would apply to a direct appeal.
State v. Maurstad, 733 N.W.2d 141, 146 (Minn. 2007).
7
Here, we need not decide whether Forest ’s trial counsel’s performance fell below
an objective standard of competence because our review of the evidence convinces us that
Forest did not prove that, had counsel requ ested the second-degree unintentional-murder
instruction, the result of his tr ial would have been different. See Strickland, 466 U.S. at
697 (explaining that courts need not de termine whether counsel’s performance was
deficient before considering the prej udice actually suffered by defendant); Gates,
398 N.W.2d at 561-62.
We so conclude because the evidence of Forest’s intent to kill the decedent is
overwhelming. The surveillance-video evidence alone is highly pers uasive evidence of
Forest’s intent to kill. It shows Forest circling the decedent in the parking lot for about two
minutes in an attempt to strike him, while the decedent sought to keep a parked car between
himself and Forest’s SUV. This cat-and- mouse game continued until Forest suddenly
accelerated toward the exit of the parking lot in an apparent retreat. But after the decedent
left his position of relative safety behind the parked car, Forest spun his SUV around, aimed
it at the decedent, and crashed into both him and a brick wall.
And the surveillance video do es not stand alone. The pre-crash data recorded by
the airbag-control module further corroborates Forest’s intent to kill. It shows that Forest
began to accelerate at 4.4 seconds before impact. By the time that he was 2.2 seconds away
from impact, Forest was depressing the accelera tor to around 90% of its total range. He
kept the accelerator at that position until 0.8 seconds before impact, at which point he had
reached a speed of 22 miles per hour. And Forest did not touch the brakes until 0.5 seconds
8
before impact. When Forest struck the dece dent and the brick wall, he was traveling at
16 miles per hour.6
Finally, the passenger’s testimony is powe rful evidence of Fore st’s intent. The
passenger saw the entirety of the events in the parking lot unfold, from the decedent’s initial
attack on Forest, through the parking-lot maneuvers, to the collision. After explaining the
decedent’s attack on Forest, the passenger testified that Fore st was able to pull away. At
the time, the passenger thought that Forest wa s heading for the parking lot exit. She was
“shocked and confused” when Forest turned around instead of leaving. And in describing
the collision, the passenger stated that Forest “went really fa st and scary.” She testified
that Forest did not stop or swerve, “except for when he was chasing” the decedent. And
when she was asked if it appeared to her that Forest hit the decedent on purpose, she replied
“yes.” She testified that she had no hesitation about that answer.
In sum, Forest has not shown a reasonabl e probability that the verdict would have
been different had his trial counsel request ed the second-degree unintentional-murder
instruction. The evidence of Forest’s intent to kill is simply too strong. See id. at 563
(explaining that defendant ha d not shown prejudice in part because the “evidence of
defendant’s guilt was very strong, consisting of positive eyewitness identification of him
as the gunman and of strong corroborating evidence”).
To persuade us otherwise, Forest argues that he was prejudiced because the jury was
forced to either convict him of intentiona l murder or acquit him entirely, instead of

6 Data taken by the module, as well as a physical examination of the SUV, revealed that all
systems were working as normal.
9
convicting him for unintentional murder. In support of this contention, he cites
State v. Harris, 713 N.W.2d 844 (Minn. 2006) and State v. Leinweber , 228 N.W.2d 120
(Minn. 1975). But these cases address the analysis used when a district court refuses to
grant a requested lesser-included instruction. That analysis differs from the examination of
whether a defendant was prejudiced by counsel’s performance. Compare State v. Dahlin,
695 N.W.2d 588, 599 (Minn. 2005) (consideri ng only instructions actually given and
verdict rendered to determine prejudice from denial of requested instruction), with Gates,
398 N.W.2d at 563 (considering totality of ev idence presented to jury to determine
prejudice from allegedly ineffective represen tation). And the tota lity of the evidence
produced here persuades us that Forest has not shown prejudice.
Next, Forest argues that the difference in sentence alone between second-degree
intentional murder and second-degree unintentional murder proves that he was prejudiced.
But the case he relies upon fo r this argument also addresses when a district court refuses
to grant a requested instruction. State v. Johnson , 719 N.W.2d 619, 629 (Minn. 2006).
Further, the rule that Forest proposes—that the failure to request an instruction with a lesser
presumptive sentence is always pr ejudicial—would run afoul of the Strickland court’s
admonition to avoid “mechanical rules” be cause the ultimate in quiry is about the
fundamental fairness of the proceeding. 466 U.S. at 696. The difference in sentence alone,
without a showing of a reasonable probability of a different verdict, is insufficient to prove
that Forest was prejudiced.
10
In sum, we are not persuaded that Forest was prejudiced by the failure to request an
unintentional-murder instruction.7
Counsel reasonably declined to object to the passenger’s testimony.
Next, Forest contends that he should have r eceived an evidentiary hearing on his
claim that his counsel was ineffective for failing to object to the passenger’s testimony that
it seemed to her that Forest intentionally drove into the decedent. To receive an evidentiary
hearing, an appellant must allege facts th at, if proven by a fair preponderance of the
evidence, would satisfy the two-pronged Strickland test set forth above. Thoreson v. State,
965 N.W.2d 295, 309 (Minn. 20 21). And as before, we need not consider both prongs if
one is dispositive of Forest’s claim. Swaney, 882 N.W.2d at 217.
To analyze Forest’s argumen t, which involves a lay person’s opinion, we turn to our
evidentiary rules. Those provide that a lay witness can testify about an opinion that is
rationally based on the witness’s perception and helpful to the determination of a fact in
issue, so long as the opinion is not based on specialized knowledge. Minn. R. Evid. 701.
And such opinion testimony is not inadmissible just because it relates to an ultimate issue
in the case. Minn. R. Evid. 704. In anal yzing the admissibility of lay opinion testimony,

7 In a related pro se argument , Forest contends that his conviction is not supported by
sufficient evidence becau se the evidence does not prove that he acted intentionally. An
intentional killing is supported by sufficient evidence if a re asonable jury could conclude
that the only reasonable conclusion from the evidence, viewed in the light most favorable
to the state, is that the killing was intentional. State v. Cooper, 561 N.W.2d 175, 179 (Minn.
1997). Here, viewing the video, the pre-cras h data, and the passenger’s testimony in the
light most favorable to the state, a reasonable jury could conclude that the only reasonable
conclusion was that Forest intended to kill the decedent. Accordingly, sufficient evidence
supports his conviction.
11
the emphasis is on whether the witness personally knows the information, and whether the
testimony will assist the jury. State v. Post, 512 N.W.2d 99, 101 (Minn. 1994).
Here, Forest has not shown that his counsel ’s failure to object to this lay testimony
fell below an objective level of reasonablene ss for two reasons. First, the passenger’s
testimony was admissible because it was base d on her perception from inside Forest’s
SUV. Id. at 101-02; Minn. R. Evid. 701. That her opinion touches on the issue of Forest’s
intent does not make it inadmissible. Mi nn. R. Evid. 704. C ounsel does not act
unreasonably by failing to make an objection that would not succeed. State v. Bobo ,
770 N.W.2d 129, 138 (Minn. 2009). Second, the decision of whether to object to testimony
is a matter of trial strategy. Id. We generally do not review claims of ineffective assistance
that implicate matters of trial strategy. Andersen v. State, 830 N.W.2d 1, 10 (Minn. 2013).
Because Forest’s counsel did not act unreasonab ly by failing to object to this testimony,
Forest has not shown that he was entitled to an evidentiary hearing.
Forest has not otherwise shown that his trial counsel’s performance was
unreasonable.
Finally, we consider Forest’s additional assertions of ineffective assistance of
counsel. First, Forest argues that his c ounsel was ineffective fo r failing to request a
self-defense instruction. But Forest’s c ounsel concluded that the instruction was not
supported by the evidence. To receive a self-defense instruction, the defendant must show
four elements: (1) the absence of aggression or provocation on the defendant’s part, (2) an
actual and honest belief that the defendant was in imminent danger of death or great bodily
harm, (3) reasonable grounds for that belief, and (4) the absence of a reasonable possibility
12
of retreat. Johnson, 719 N.W.2d at 629. Forest cannot show the fourth element because,
after getting the decedent out of his car, Forest could have retreated. He did not.
Second, Forest alleges that his counsel co erced him into waiving the right to testify
in an “off the record communication.” But the record shows that Forest decided to waive
his right to testify after being given an additional hour to consult with counsel. When the
record reflects that the defendant decided to waive his right to testify after consulting with
counsel, an after-the-fact claim of coercion fails. State v. Thomas, 590 N.W.2d 755, 759
(Minn. 1999). Forest has not shown that his counsel coerced him into not testifying.
Third, Forest contends that counsel wa s ineffective for requesting a lesser-included
instruction of first-degree heat-of-passion ma nslaughter because he contends that the
evidence does not support the in struction. But the evidence provided a rational basis to
support the instruction. Dahlin, 695 N.W.2d at 598. A heat-of-passion defense requires
proof that defendant killed in the heat of passion, meaning that the killing was provoked
by the acts of another that would provoke a person of ordinary self-control under the
circumstances. Johnson, 719 N.W.2d at 626. Here, the decedent’s sudden assault of Forest
could provoke a person of ordinary self-control. Accord ingly, Forest has not shown that
his counsel’s performance fell below an objec tive level of reasonableness because the
evidence does not support a self-defense in struction but supports the heat-of-passion
instruction, and because the record contradicts Forest’s assertion that he was coerced into
not testifying.
In sum, Forest did not receive ineffectiv e assistance of counsel. Assuming, without
deciding, that Forest’s counsel erred by not requesting the unintentional-murder
13
instruction, Forest has not shown a reasona ble probability of a different outcome. And
Forest’s counsel did not perfo rm unreasonably in declining to object to the passenger’s
testimony, not requesting a self-defense instru ction, counseling Forest about his right to
testify, or by requesting the heat-of-passion-manslaughter instruction.
II. The district court did not abuse its di scretion by excluding evidence of the
decedent’s intoxication.
Forest argues that the district court shou ld have let him pres ent evidence of the
victim’s intoxication to the jury. A district court has wide discretion to determine whether
evidence is relevant. State v. Hallmark, 927 N.W.2d 281, 298 (Minn. 2019). Evidence is
relevant when it has any tendency to make a ma terial fact more or less likely to exist.
Minn. R. Evid. 401.
Here, the state moved the district court to prohibit Forest’s counsel from introducing
evidence of the decedent’ s intoxication. Forest’s counsel argued that the decedent’s
intoxication was relevant to show that the decedent—allegedly acting erratically because
he was under the influence of controlled substances—ran into the way of Forest’s vehicle.
But the district court, after reviewing the video of the incident, rejected defense counsel’s
characterization of the events, and concluded that the decedent’s toxicology report was not
relevant.
Forest has not shown that the district c ourt abused its discretion by so concluding.
The surveillance video clearly shows the decedent walking in a straight line, and then
running to avoid the SUV before Forest strikes him. It does not depict the decedent running
14
into the path of Forest’s SUV. Because the decedent did not run into his path, Forest has
not shown that the evidence of the decedent’s intoxication was relevant to a material fact.
III. Forest’s right to a speed y trial was not violated.
Forest contends that his right to a speedy trial was violated in two respects: his trial
was delayed from the original date of Ap ril 27, 2020, until June 22, 2020, and his
indictment for first-degree murder was delayed in violation of Minnesota Rule of Criminal
Procedure 8.02. To resolve these claims, we turn to our precedent interpreting the
speedy-trial right.
A criminal defendant is entitled to a sp eedy trial under both the Sixth Amendment
to the United States Constitution and Article 1, Section 6, of the Mi nnesota Constitution.
We review de novo whether a defendant’s ri ght to a speedy trial has been violated.
State v. Taylor, 869 N.W.2d 1, 19 (Minn. 2015). To answer this question, we consider four
factors: (1) the length of the delay, (2) the reason for the delay, (3) the defendant’s assertion
of the right to a speedy trial, and (4) the prejudice to the defendant as a consequence of the
delay. State v. Mikell, 960 N.W.2d 230, 245 (Minn. 2021). Finally, we balance the above
factors to determine whether Forest’s speedy-trial right was violated.
First, we consider the length of the delay. A defendant must be tried within 60 days
of a speedy-trial demand following a not-guilty plea “unless the court finds good cause for
a later trial date.” Minn. R. Crim. P. 11.09(b). As a result, a delay of more than 60 days is
presumed to be prejudicial. Mikell, 960 N.W.2d at 246.
Here, Forest pleaded not guilty to th e charge of second-degree murder on
February 5, 2020. But Forest agreed to a trial date of April 27, 2020, which was more than
15
60 days after his not-guilty plea. The parties then ag reed to a new date of June 8, 2020,
subject to Forest’s waiver of his speedy-trial right. Forest objected to the delay, but the
district court found good caus e to continue the trial. An d the court, because of the
requirements for conducting a jury trial under the pilot program during the pandemic, had
to continue Forest’s trial once more to June 25, 2020. Accordingly, Forest’s trial was
delayed for 124 days from his not guilty plea. This delay is presumptively prejudicial. Id.
Second, we determine whether the delay is attributable to the state or the defendant.
Id. at 250-51. Recently, we concluded that wh en the delay is “solely attributable to the
COVID-19 pandemic,” the delay “is not attributable to either party.” State v. Jackson ,
968 N.W.2d 55, 61 (Minn. App. 2021), rev. granted (Minn. Jan. 18, 2022). Forest does
not identify a reason for the delay other than th e pandemic. Accordingly, this factor does
not weigh in his favor.
Third, we consider how the defendant a sserted his right to a speedy trial. Mikell,
960 N.W.2d at 252. Forest inconsistently asserted th is right. Although he asserted the
right upon pleading not guilty, he agreed to a date outside of the 60-day deadline at the
same hearing. And Forest did not renew his sp eedy-trial demand until June 5, 2020.
Inconsistent assertions of the right to a speedy trial dilutes the impact of an initial demand
in the balancing of the speedy-trial factors. Id. at 253. Thus, this factor does not weigh in
Forest’s favor.
Fourth, we determine whether the de fendant was prejudiced by the delay,
considering three interests: “(1) preven ting oppressive pretrial incarceration;
(2) minimizing the anxiety and concern of the accused; and (3) preventing the possibility
16
that the defense will be impaired.” Id. (quotation omitted). Impairment to the defense
generally consists of memory loss or witness unavailability. Id. Forest does not
specifically assert how he was prejudiced by the delay. Because Forest did not present any
evidence in his defense, he has not shown any impairment. And while Forest undoubtedly
suffered anxiety while awaiting trial, the usua l stress and anxiety experienced by anyone
who stands trial is insufficient to show prejudice. State v. Friberg , 435 N.W.2d 509
(Minn. 1989). Accordingly, this factor also does not weigh in Forest’s favor.
Finally, we consider, in light of the abov e factors, whether the state brought the
defendant to trial quickly enough that the values protected by the speedy-trial right are not
endangered. Mikell, 960 N.W.2d at 255. Here, the stat e brought Forest to trial quickly
enough. While the 124-day delay is presumptively prejudicial, the delay is not attributable
to the state, Forest inconsiste ntly asserted his right, and he has not shown prejudice. In
sum, his speedy-trial right was not violated by the delay.8
IV. The district court did not plainly err by not giving an accomplice instruction
to the jury.
Forest contends that the district court sh ould have given an accomplice instruction
to the jury regarding the passenger. A co nviction may not be based solely on the
uncorroborated testimony of an accomplice. Minn. Stat. § 634.04 (2020). District courts

8 Forest also asserts that the delay in his indictment violated his speedy-trial rights. Because
Forest did not object before the district court, we review this claim for plain error, meaning
that Forest must show a plain error th at affected his substantial rights. State v. Hayes ,
826 N.W.2d 799, 807 (Minn. 2013). A plain e rror affects a defendant’s substantial rights
if it affected the outcome of the case. State v. Parker, 901 N.W.2d 917, 926 (Minn. 2017).
Because Forest was not found gu ilty of first-degree murder, any error in the indictment
process did not affect his substantial rights. Id. Accordingly, he has not shown plain error.
17
must instruct juries on accomplice testimony when it is reasonable to consider the witness
to be the defendant’s accomplice. State v. Horst, 880 N.W.2d 24, 37 (Minn. 2016). When
the defendant does not request an accomplice instruction, appellate courts review the lack
of such an instruction for plain error. Id. at 38. Under the plain-error standard, Forest must
show (1) an error, (2) that is plain, and (3) that affected his substantial rights. Id.
Here, Forest has not shown plain error. Forest alleges that the passenger was an
accomplice of the decedent and lured him to the parking lot. But Forest has not shown that
the passenger was an accomplice of his killing of the decedent. Id. at 37. Accordingly, the
district court did not plainly err by not giving an accomplice instruction to the jury.
V. The prosecutor did not commit misconduct.
Next, Forest argues that the prosecutor disparaged his defense and misrepresented
evidence to the jury. Prosecutors have an affirmative ob ligation to ensure the fairness of
criminal trials, and misconduct ma y deny a defendant that right. State v. Ramey ,
721 N.W.2d 294, 300 (Minn. 2006). This court reviews claims of unobjected-to
prosecutorial misconduct for plain error. Id.
Again, Forest has not shown plain erro r. First, he does not explain how the
prosecutor disparaged his defense and a review of the trial transcript shows that the
prosecutor did not do so. Second, Forest’s claims of misrepresentation of the evidence are
not persuasive. He claims that the state mi srepresented the evidence by saying that he
could have called 911 instead of striking the victim with his car, that he could have driven
away once he got his car door closed, and that the passenger testified that he intentionally
18
struck the decedent without hesitation. All of these statements are supported by testimony
at trial. Thus, Forest has not shown that the prosecutor committed misconduct.
VI. The district court did not abuse its dis cretion by denying Forest’s motion for a
durational departure.
Finally, Forest argues that the district court should have granted his motion for a
downward durational departure. We review this claim for an abuse of the “great discretion”
given to district courts in the im position of criminal sentences. State v. Rund ,
896 N.W.2d 527, 532 (Minn. 2017) (quota tion omitted). And onl y rarely would we
interfere with a term that is with in the presumptive sentence range. State v. Kangbateh ,
868 N.W.2d 10, 14 (Minn. 2015).
Here, Forest moved for a durational depa rture because the decedent was the initial
aggressor, and he asserted that he lacked capacity at the time of the offense because he was
in shock. The district court denied Forest’s motion because it did not find any substantial
or compelling reasons to give him a departure. The cour t found that Forest was the
aggressor in the second, fatal, altercation because he could have driven away, and the court
did not credit his claim that he was not at full capacity during the offense. Accordingly,
the district court sentenced Forest to the presumptive term of 386 months.
Forest has not shown that th e district court abused its discretion. While the decedent
indisputably assaulted Forest, the district c ourt was not persuaded that this fact was a
substantial and compelling reason to depart be cause Forest had the opportunity to retreat
safely. Instead, he pursed the decedent with his vehicle before striking and killing him.
19
The district court was well within its disc retion to sentence Forest to a term of
imprisonment within the presumptive sentencing range.
Affirmed.