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This opinion is nonprecedential except as provided by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
A20-1607

State of Minnesota,
Respondent,

vs.

Marcus Anthony Baker,
Appellant.

Filed March 7, 2022
Affirmed
Bryan, Judge

Ramsey County District Court
File No. 62-CR-19-8403

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

John J. Choi, Ramsey County Attorney, Thomas R. Ragatz, Assistant County Attorney, St.
Paul, Minnesota (for respondent)

Frederick J. Goetz, Goetz & Eckland P.A., Minneapolis, Minnesota (for appellant)

Considered and decided by Bryan, Pres iding Judge; Worke, Judge; and Florey,
Judge.
NONPRECEDENTIAL OPINION
BRYAN, Judge
In this direct appeal of his convictions, appellant questions the sufficiency of the
circumstantial evidence presented against hi m, challenges the admissibility of certain
evidence, and argues that the prosecutor committed misconduct during the trial. Because
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the circumstantial evidence was sufficient to support the co nvictions and the state has
shown that any prejudice resulting from the ad mission of the challenged evidence or the
asserted prosecutorial misconduct was harmless, we affirm.
FACTS
In November 2019, respondent State of Minnesota charged appellant Marcus
Anthony Baker with one count of second-degree intentiona l murder in violation of
Minnesota Statutes section 60 9.19, subdivision 1(1) (2018), and one count of attempted
second-degree intentional murder in violati on of Minnesota Statutes section 609.19,
subdivision 1(1), and section 609.17, subdivi sion 1 (2018). The state later amended the
charges to include accomplice lia bility for the murder and a ttempted murder. The case
proceeded to trial and the jury found Baker guilty of both co unts. Baker appeals the two
convictions. Given the arguments on appeal , we summarize the ev idence presented and
the relevant portions of the trial transcript.
A. Evidence Presented at Trial
On October 27, 2019, police responded to reports of a shooting near the intersection
of Kent Street and Central Avenue in St. Paul, Minnesota. When they arrived at the scene,
police found a vehicle blocking the nearby in tersection of Dale Street and St. Anthony
Avenue. The driver of the vehicle, later id entified as S.J., was non-responsive and was
transported to a hospital where he later died from a gunshot wound. Police also
encountered a second individual, identified as W.J., who had been in a separate vehicle and
was also injured, but suffered non-life-threatening injuries. There were no witnesses to the
shooting who testified at trial.
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The state introduced evidence from a surveillance video showing the intersection of
Kent Street and Central Avenue. The surveillance video shows that at approximately 11:20
p.m., two vehicles stopped in the street faci ng opposite directions, one driven by S.J. and
the other by W.J. While the two vehicles waited there, a white van approached, slowed
down, and drove away without making a complete stop. Officers believed that an occupant
of the white van shot at S.J. and W.J., killing S.J. and inju ring W.J. Law enforcement
subsequently determined that the registered owner of the white van was Brandon Baker
(appellant’s brother). Investig ating officers also obtained video footage from Minnesota
Department of Transportation (MNDOT) camera s. The state introd uced evidence that,
using footage from these cameras, police were able to follow the route of the white van as
it headed east on Interstate 94, north on Interstate 35E, a nd east on Highway 36 before
exiting the freeway. Law enfo rcement also obtained video footage from an apartment
complex on Geneva Avenue (the Geneva residence), just a few blocks from where the van
exited Highway 36.
The surveillance video from th e Geneva residence introdu ced into the trial record
shows that at 11:34 p.m., th e white van entered the parking lot. The video shows the
passenger door opening and an individual exiting the white van wearing a black hooded
sweatshirt, grey pants, and lighter-colored shoes. The video also shows the driver exiting
the white van wearing a grey hooded sweatshirt, dark pants, and brown shoes. For the next
few minutes, the video shows the passenger and driver moving around the vehicle between
the middle and rear portions of the van. The driver hand ed something to the passenger
before the doors were closed, and both individuals walked away from the van. A separate
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surveillance video from the Gene va residence shows, at a pproximately 11:43 p.m., two
individuals walking to the detached parking garages in the apartment complex, opening a
garage door, and entering the garage. Afte r approximately two minutes, the video shows
the individuals exiting the garage, closing the doors, and leaving the apartment complex in
separate vehicles. Police later learned that the garage used by th e two individuals was
rented by a female, D.H.; that the garage doors open and close with a remote control; and
that there was only one garage opener issued per apartment. Law enforcement officers also
determined that D.H. and Baker have a child together.
During the investigation, law enforcement located the Facebook page for appellant’s
brother. The state introduced evidence obt ained from the Facebook page, including
photographs of appellant’s brother weari ng a black baseball hat and a black hooded
sweatshirt, like the passenger of the white van was wearing at the time of the shooting.
Law enforcement also determined that appe llant’s brother was living in an apartment
complex on Hoffman Road in White Bear Lake (the Hoffman residence). Police obtained
surveillance videos from the Hoffman residence for October 27 and 28, 2019. Surveillance
videos from the morning of the shooting show that the white van was parked at the Hoffman
residence that morning and that appellant’s brother left an apartment at the Hoffman
residence wearing a black hooded sweatshirt and black pants, similar to what the passenger
of the white van was wearing at the time of the shooting. Surveillance video also shows
appellant’s brother returning to the Hoffman residence just before midnight wearing the
same clothes.
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In the week following the shooting, a police officer observed the white van parked
in the parking lot of an Applebee’s restau rant in Hudson, Wisconsin. Law enforcement
officers obtained surveillance video from the restaurant and introduced portions into
evidence at the trial. That evidence showed the white van entering the parking lot on
October 28 at 8:44 a.m. Law enforcement officers also obtained and introduced portions
of surveillance videos from the Geneva residence and the Hoffman residence recorded on
the morning of October 28, 2019, the day after the shooting. The surveillance video from
the Hoffman residence on that morning shows appellant’s brother wearing clothes similar
to what the passenger of the white van was wearing at the time of the shooting, exiting an
apartment, walking in the parking lot, and entering a dark green SUV with a silver stripe
(the dark green SUV) before driving away.
Surveillance video from the Geneva resi dence on the morning after the shooting
shows a person wearing a red jacket by an open garage near where the white van was
parked. The video then shows the dark gree n SUV approaching and parking next to the
open garage, the white van and the person wearing the red jacket stopping near a dumpster
for a few minutes, and both the white van and the dark green SUV driving away from the
Geneva residence. Surveillance footage from the Applebee’s parking lot on the morning
after the shooting shows both vehicles arriving, the driver of the white van exiting the van
and entering the dark green SUV, and the dark green SUV leaving the Applebee’s parking
lot. On November 5, 2019, police officers conducted a traffic stop on the dark green SUV
and arrested the occupants: Baker and his br other. At the time, Baker was wearing a red
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jacket that is the same colo r and style as the red jacket worn by the person seen on video
from the Geneva residence on the morning after the shooting.
The state presented evidence at trial regard ing the execution of search warrants at
the Hoffman residence, Baker’s residence,1 and the Geneva residence. From the Hoffman
residence, law enforcement officers recove red the title for the white van, .40 caliber
ammunition, and a Gloc k magazine loaded with .40 ca liber bullets. From Baker’s
residence, police recovered Ba ker’s driver’s license, a grey hooded sweatshirt with a
zipper, a pair of brown boots, a pair of black pants, and a used target from a shooting range
with smaller caliber bullet holes in it (similar to .22 calibe r). At the Geneva residence,
police photographed a birth certificate identifying Baker and D.H. as parents of a child.
Law enforcement also obtained surve illance video footage from the Geneva
residence in the days and weeks prior to the shooting. Portions of these videos were
introduced at trial. Accordi ng to the evidence presented by the state, the videos on more
than one occasion clearly show Baker’s face while he is wearing a grey hooded sweatshirt
and tan boots like what the driver of the white van was wearing at the time of the shooting.
The state offered the testimony of Sergeant Chou Jim Yang who reviewed the surveillance
videos showing Baker at the Geneva residence. Based on this knowledge, Yang provided
testimony regarding the video from the Gene va residence shortly after the shooting
occurred. Yang testified that he compared “the build and the movement and the gait to

1 Appellant refers to the residence on Parkwa y Drive as “Marcus Baker’s residence” and
“appellant’s apartment.”
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known footage of [Baker]” and that they were “definitely” consistent. In his opinion, Baker
was the driver of the white van on the day of the shooting.
B. Admission of Challenged Evidence and Use of Leading Questions
The surviving victim, W.J., did not testify at trial, and the parties discussed the
admissibility of testimony regarding fear of retaliation and gang affiliation. Specifically,
prior to presenting its case-in-chief, the stat e notified the district court that it was not
introducing gang or intimidation evidence. The district court then instructed both parties
“not to elicit any testimony regarding any reta liation or gang affiliation, and instruct the
witnesses to do the same and not elicit—or not volunteer that information until either party
has brought that to the [c]ourt’s attention fo r a ruling and the [c]our t has ruled on how to
have that information into the trial.”
During direct examination, Yang testified that he had worked “quite often” on cases
in which witnesses or victims were reluctant to speak with police. After the district court
overruled a relevancy objection, Yang gave the following testimony:
Quite often, a lot of time witnesses don’t stay behind because
they don’t want to be involved, they don’t want to be linked
into it. They’re scared for their relationship to be part of it.
Victims, sometimes, they don’ t corroborate because they’re
[sic] fear of retaliation. They’re fearful that –”

Baker’s counsel objected and asked to approach the bench. After a brief bench conference,
the district court overruled the objection and Yang continued:
[T]here are many times, especially the victims, they don’t want
to be continuing it, fearing that the suspects or the person who
may have caused harm to them may come back and retaliate or
come hurt then [sic] them agai n. Sometimes they also don’t
want to participate in it because they’re fearful of their address
8
and their information, which is detailed in the police report
because of the facts of the inci dent will be di scovered. And
those are stuff that most of the time they’re fearful of.

Yang also testified specifically about his contacts with W.J. during the investigation.
The district court overruled a hearsay objec tion about W.J.’s overall demeanor and Yang
testified that W.J. “was reluctant to share information. He was sharing that he was kind of
withholding information.” Defense renewed its hearsay objection and the district court
sustained and struck the last portion of Yang ’s answer. Yang then described his other
encounters with W.J., testifying that each time W.J. appeared reluctant to share information
and that as trial approached, he was “worse” a nd did not “want to be part of anything at
all.”
Towards the end of Yang’s testimony, th e district court sustained a series of
objections to the state’s leading questions:
Q. Does [the white van] drive by coming to a slow roll but
never a complete stop?
A. Yes.
Q. And does it pepper [S.J.’s] car with shots over –
BAKER’S COUNSEL: Objection; leading, Your Honor.
THE COURT: Sustained.

. . . .

Q. And comparing it to the MnDOT video, does it show the
vehicle to travel at a very high rate of speed?
A. Yes.
BAKER’S COUNSEL: Objection; leading.
THE COURT: I’m going to have you just pause between the
question. I’ll overrule the objection. You’ve already
answered “yes.” Counsel, ask your next question.

. . . .

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Q. And then you know that Brandon Baker left the next
morning from his apartment on Hoffman?
A. Yes.
Q. Picked up by this defendant in that blazer?
BAKER’S COUNSEL: Objection; leading and speculation.
THE COURT: Sustained.

. . . .

Q. All right. Thank you for that clarification. And is Brandon
then dropped back at Geneva?
BAKER’S COUNSEL: Objection; leading. This whole line of
questioning is leading, Your Honor.
THE COURT: Sustained.
Q. Do you see – does the tim ing line up from when Brandon
Baker left Hoffman to when his vehicle – the vehicle he
got into arrives at Geneva?
A. Yes.
Q. Is he still wearing a black sweatshirt and grey sweatpants?
A. Yes.
Q. And does that person then ge t into the van and drive it to
Hudson?
BAKER’S COUNSEL: Objection; leading.
THE COURT: Sustained.
Q. Is that vehicle seen driving first to the dumpsters at Geneva?
A. Yes.
Q. And then to Hudson?
A. Yes.
Q. Where he gets back—the driv er of the van gets back into
the SUV?
BAKER’S COUNSEL: Objection; leading.
THE COURT: Sustained.
Q. And then when a search wa rrant was executed of Brandon
Baker’s vehicle, did they find .40 caliber rounds?
A. Yes.
Q. And a ma—
BAKER’S COUNSEL: Objection; Your Honor.
THE COURT: Sustained. Counsel, do you want to approach?
THE COURT: Counsel, you can proceed.
BAKER’S COUNSEL: Thank you.
Q. Again, Sergeant, was th ere ammunition found at the
apartment of Brandon Baker?
A. Yes.
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Q. What caliber?
A. .40, 9 and—
BAKER’S COUNSEL: Objection, Your Honor; outside the
scope.
THE COURT: Sustained.

The state also inquired of Sergeant Mich ael Dunaski regarding the recovery of a
shooting range target, which was admitted ove r Baker’s objection. For example, to
establish foundation for a series of exhibits, the state asked Dunaski what was depicted in
the photographs taken at the time that law enforcement exec uted the search warrant at
Baker’s residence: “[Exhibit] 288? A: A gun range style target picture.” After the exhibits
were received, the state asked a nearly identical question of the same witness: “288? A: A
photograph, including a picture of a silhouette target from a gun range.” The state also
introduced the item itself through the same witness:
Q. Sergeant, this is Exhibit 420. What should be inside of that
bag?
A. Item 64, indoor shooting ra nge target from the first floor
bedroom.
Q. Will you please open the bag and identify the contents?
A. (The witness opens the package.)
Q. Can you hold it up, please?
A. (Complies.)
Q. And that is a shooting range target?
A. Correct.
Q. All right. Thank you.

On cross-examination, Baker’s counsel asked a few substantive questions and the
state followed up on redirect examination:
Q. I’m going to hand you Exhibit 420. Is that the gun range
target?
A. Yes, sir.
Q. There’s some holes in it, right?
A. Yes, there were.
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Q. I know you can’t probably te ll the caliber of the gun, but
can you tell me the general si ze of the holes, what you
would expect the caliber of that gun to be that made
that? I don’t expect you to be perfect.
A: Yeah. I’m not a ballistics expert, but it looks to be a smaller
caliber, like a .22 or something.
Q. A larger gun would leave a larger hole, right?
A. Yes, sir.
Q. Possibly tear the paper a little bit differently than what’s
shown on there, right?
A. Possibly, yes, sir.
BAKER’S COUNSEL: I have no further questions.
THE COURT: Any redirect?
REDIRECT EXAMINATION BY THE STATE:
Q. To what degree of certainty can you say that that’s a .22?
A. Once again, I’m not a ballistic s expert known to matching
up the paper to targets, but the hole seems consistent
with a smaller—a smaller caliber.

The parties did not inquire furt her regarding the shooting target . In total, the transcript
from the ten days of trial proceedings exceed s 1,450 pages, including approximately 600
pages of testimony.
In closing arguments, the parties focused on what inferences the jury could make
from evidence whose admission is not challenged on appeal. The state’s closing arguments
included nearly 5,700 words and Baker’s closing argument included approximately 2,700
words. The state’s atto rney briefly mentioned that at th e scene of the incident, W.J. was
“reluctant to tell what happened,” and the attorney made a single, passing reference to the
recovery of the shooting range target as part of a list of items recovered from the various
search warrants: “And they found a shooting target.”
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DECISION
I. Sufficiency of Circumstantial Evidence
Baker argues that the circumstantial evidence presented is insufficient to support his
convictions because it does no t prove the identity of those in volved in the sh ooting. In
response, the state contends that the circumst antial evidence proves that Baker drove the
white van. We agree with the state and c onclude that the circumstances proved are
consistent with guilt and inconsistent with any inference to the contrary.
Where, as here, “the direct evidence of guilt on a particular element is not alone
sufficient to sustain the verdict,” we apply the circumstantial-evidence standard of review.
Loving v. State, 891 N.W.2d 638, 643 (Minn. 2017). Circumstantial evidence is “evidence
from which the factfinder can infe r whether the facts in dispute existed or did not exist.”
State v. Harris, 895 N.W.2d 592, 599 (Minn. 2017) (quotation omitted). “[C]ircumstantial
evidence always requires an inferential step to prove a fact that is not required with direct
evidence.” Id. In assessing the sufficiency of circumstantial evidence, we conduct a two-
part analysis. State v. Andersen, 784 N.W.2d 320, 329-30 (Minn. 2010). First, we “identify
the circumstances proved,” id. at 329, deferring to the jury’s credibility determinations and
weighing of the evidence, Harris, 895 N.W.2d at 600. Second, we consider whether the
circumstances proved are consistent with guilt and inconsistent with a rational hypothesis
other than guilt. Andersen, 784 N.W.2d at 329-30. “Circumstantial evidence must form a
complete chain that, in view of the evidence as a whole, leads so directly to the guilt of the
defendant as to exclude beyond a reasonable doubt any reasonable inference other than
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guilt.” State v. Al-Naseer, 788 N.W.2d 469, 473 (Minn. 2010) (quotation omitted). In this
second step, no deference is given to the jury’s verdict. Loving, 891 N.W.2d at 643.
In this case, the state proved the following circumstances:
 On October 27, 2019, an occupant of a white van registered
to appellant’s brother shot at S.J. and W.J. near the
intersection of Kent Street and Central Avenue in St. Paul,
Minnesota. S.J. died as a result of the gunshot wound.

 The white van traveled to th e Geneva residence. Two
occupants exited the vehicle: the driver wore a grey hooded
sweatshirt, black pants, and tan boots, and the passenger
wore a black sweatshirt, grey pants, and lighter shoes.
Using a remote garage door op ener issued to D.H. (the
mother of Baker’s child), the driver of the white van entered
a garage rented by D.H.

 Additional videos depict Baker at the Geneva residence in
the past and videos show him wearing clothes like what the
driver wore at the time of the shooting. The videos from
more than one occasion clea rly show Baker’s face and
show him wearing a grey hooded sweatshirt and tan boots.

 Law enforcement officers recovered a grey hooded
sweatshirt, black pants, and tan boots from Baker’s
residence.

 In addition to wearing clothes like Baker’s, the driver of the
white van has a build like Baker’s and walks with a gait that
is notably similar to what Baker looks like when he is
walking. Officer Yang be lieved that, based on this
information, Baker was the driver of the white van.

 In addition, on the morning of the shooting, the white van
was parked at the Hoffman residence and appellant’s
brother left the Hoffman residence wearing clothes that
match what the passenger wore at the time of the shooting.
Appellant’s brother returned to the apartment just before
midnight and approximately forty minutes after the
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shooting. He was still wearing the clothes that match what
the passenger was wearing at the time of the shooting.

 Law enforcement officers recovered the title for the white
van, .40 caliber ammunition, and a Glock magazine loaded
with .40 caliber bullets from the Hoffman residence.

 On the morning after the shooting, appellant’s brother left
the Hoffman residence in th e dark green SUV, again
wearing a black sweatshirt and grey sweatpants like what
the passenger of the white va n wore at the time of the
shooting. Appellant’s brot her arrived at the Geneva
residence where he met with a person wearing a red jacket
by the open garage near where the white van was parked.
After stopping near a dumpster for a few minutes, both the
white van and the dark green SUV left the Geneva
residence. The white van and the dark green SUV traveled
to the Applebee’s parking lot in Hudson, Wisconsin. After
parking the white van, the driver exited the van and entered
the dark green SUV before the dark green SUV drove away
from the parking lot.

 On November 5, 2019, police officers stopped the dark
green SUV and arrested Baker and his brother. At the time,
Baker was wearing a red jacket that is the same color and
style as the red jacket worn by the person seen at the
Geneva residence near the wh ite van on the morning after
the shooting.

These circumstances connect Baker on the day of the shooting to the white van, to
the Geneva residence, to D.H.’s parking gara ge, and to his brother. The circumstances
proved also tie Baker to the white van, the Geneva residen ce, the dark green SUV, the
Applebee’s restaurant, and his brother on the morning after the shooting. In particular, the
clothes that Baker wore on multiple previous occasions match the ones that the driver of
the white van wore on the day of the shooting, and the red jacket Baker was wearing when
he was arrested matches the on e that the person wore who wa s with the white van on the
15
morning after the shooting. Finally, Baker ha s the same build and the same gait as the
driver of the white van. When viewed as a whole, we conclude that the only rational
inferences to draw from these circumstances are consistent with Baker’s guilty verdicts.
II. Remaining Arguments
Baker also challenges the admission of certain evidence and argues that the
prosecutor’s conduct compels reversal. In addition, Baker argues that the cumulative effect
of the trial errors and the prosecutor’s conduct vi olated his right to a fair trial. The state
argues that the district court did not err, that the prosecutor’s conduct was proper, and that
none of these alleged errors impacted the jury ’s verdict. We concl ude that the state has
established that the asserted errors are harmless.
Erroneous admission of evidence and pros ecutorial misconduct warrant reversal
only when prejudicial. For ob jected-to evidence, as at issu e in this case, we determine
whether the error substantially influenced the jury to convict. E.g., State v. Loebach, 310
N.W.2d 58, 64 (Minn. 1981) (noting that the erroneous admission of evidence warrants
reversal only when the error substantially influences the jury to convict).
For objected-to prosecutorial misconduct, we apply one of two standards of
prejudice. If the case involves claims of serious prosecutorial misconduct, appellate courts
do not reverse if the misconduct is harmless beyond a reasonable doubt. State v. Caron,
218 N.W.2d 197, 200 (Minn. 1974). For less serious pros ecutorial misconduct, appellate
courts apply the same standard as used when evaluating claims of objected-to admission
of evidence: determining whether the misco nduct likely played a substantial part in
influencing the jury to convict. Id. at 200. Since Caron, however, the Minnesota Supreme
16
Court decided State v. Mayhorn, 720 N.W.2d 776, 785 (Minn. 2006), and State v. Swanson,
707 N.W.2d 645, 658 (Minn. 2006). The “continued viability of the two-tiered approach
set forth in State v. Caron . . . remains to be decided.” State v. McCray, 753 N.W.2d 746,
754, n.2 (Minn. 2008); see also State v. Whitson, 876 N.W.2d 297, 304 n.2 (Minn. 2016)
(noting that “[r]ecent cases have questioned whether the two-tiered Caron standard for
reviewing objected-to misconduct remains viable,” and listing cases); State v. Graham, 764
N.W.2d 340, 348 (Minn. 2009) (noting that the Minnesota Supreme Court has “yet to
decide whether the two-tiered approach for objected-to prosecutorial misconduct as set
forth in State v. Caron remains viable”).
In deciding what effect challenged evidence or conduct had on the verdict, this court
considers “the manner in which the evid ence was presented, whether it was highly
persuasive, whether it was used in closing ar gument, and whether the defense effectively
countered it.” Townsend v. State , 646 N.W.2d 218, 223 (Minn. 2002); see also State v.
Powers, 654 N.W.2d 667, 679 (Minn. 2003) (holding that a statement did not amount to
misconduct because “[t]he improper statem ent was only two sent ences in a closing
argument that amounted to over 20 transcribed pages”); State v. Glaze, 452 N.W.2d 655,
662 (Minn. 1990) (holding that alleged prosecutorial misconduct in closing arguments did
not require a new trial because “the remarks we re isolated and not representative of the
closing argument when reviewed in its entirety”); State v. Johnson, 616 N.W.2d 720, 728
(Minn. 2000) (concluding that alleged prosecutorial misconduct was not prejudicial in part
because the jury was properly instructed that remarks made by the attorneys in closing were
not evidence).
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In this case, Baker argues that we should vacate his convictions because of the
erroneous admission of general testimony regarding reluctant witnesses, the admission of
evidence regarding a used shoo ting range target, and the prosecutor’s use of leading
questions. Assuming without deciding the presence of error and prosecutorial misconduct,
we conclude that the state ha s established that the errors and misconduct were harmless
beyond a reasonable doubt. 2 The challenged portion of Yang’s testimony comprises
approximately four pages of trial transcript, out of more than 700 pages of testimony. The
state’s attorney made one passing reference in closing argument, stating that at the scene
of the incident, W.J. was “reluctant to tell what happened.” The relevant testimony
regarding the shooting range target makes up ev en fewer pages of transcript than Yang’s
general testimony regarding reluctant witne sses, and the only substantive testimony
occurred during Baker’s cross-ex amination of Dunaski. In the state’s closing argument,
counsel made a single, passing reference to the recovery of the shooting range target during
the recitation of the items recovered from the various search warrants: “And they found a
shooting target.” Although the state’s closing arguments included nearly 5,700 words, only
these six related to the shooting range target . Given the manner of presentation and the
lack of emphasis by the state, these statements are harmless beyond a reasonable doubt.
In addition, although the state did ask a series of leading questions, these questions
asked Yang to affirm what was depicted on a video and about the recovery of .40 caliber
casings. The district court admitted into evidence the video itself, as well as the .40 caliber

2 Given this determination, we need not address whether the two-tiered approach is viable,
whether the district court erred, or whether the prosecutor committed any misconduct.
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casings, photographs of the casings, and additional testimony regarding the casings. Baker
does not challenge the admission of these items on appeal. In addition, the district court
instructed the jury before and after the trial that attorneys’ questions were not evidence.
For these reasons, we conclude that the state established that the alleged errors and
misconduct—even when considered together —were harmless and did not deprive Baker
of a fair trial.
Affirmed.