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This opinion is nonprecedential except as provided by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
A21-0192

State of Minnesota,
Respondent,

vs

Christian Douglas Baron,
Appellant.

Filed March 28, 2022
Affirmed
Rodenberg, Judge*

Kandiyohi County District Court
File No. 34-CR-20-513

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

Shane D. Baker, Kandiyohi County Attorn ey, Julianna F. Passe, Assistant County
Attorney, Willmar, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Jenna Yauch-Erickson, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Segal, Chie f Judge; Slieter, Judge; and Rodenberg,
Judge.

* Retired judge of the Minnesota Court of Ap peals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.

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NONPRECEDENTIAL OPINION
RODENBERG, Judge
Appellant Christian Douglas Baron appe als from his convictio n of second-degree
assault, arguing that he is entitled to a new trial because plain error affected his substantial
rights when (1) the district court allowed th e state to constructively amend the complaint
during trial, and (2) the prosecutor elicited vouching testimony from two witnesses. We
affirm.
FACTS
On June 8, 2020, appellant was living in a camper on the property where his brother,
T.B., resided. That day, the two had a conf rontation about dirty di shes. Appellant later
called police to report verbal abuse from T.B. and told the dispatcher he would “stab [T.B.]
if it came down to it.” Appellant texted a simila r threat to T.B. Later that afternoon, T.B.,
in an attempt to “make [appellant] mad,” unplugged appellant’s camper to deprive
appellant of utilities.
As T.B. walked away from the camper, he heard the camper door open and then felt
a sharp pain, making him think he had been hit in the back. When T.B. reached his hand to
the pained area, he discovered that he was bleeding. T.B. pushed appellant away and saw
that appellant held a knife. T.B. then called the police and officers were dispatched.
When officers arrived, T.B. stood on th e driveway “with blood on his hands and
holding his side.” Appellant no longer had a knife in his hand s and officers arrested and
handcuffed appellant before “physically carry [ing] [him] to the squad car.” Appellant’s
father testified that he did not see what occurred but heard an argument, saw T.B. bleeding,
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and saw appellant holding a knife. Officers located a knife blade in the garbage can outside
the camper. At the jail, appellant spoke with an officer and stated that he did not stab T.B.,
but expressed that he wished he could. He expressed a belief that T.B. had stabbed himself.
Appellant was initially charge d with five counts: (1) se cond-degree assault with a
dangerous weapon; (2) threats of violence; (3 ) domestic assault; (4) fifth-degree assault;
and (5) obstruction of the legal process. Nine days later, the state amended the complaint
to eliminate the threats of violence charge and increase the severity of the assault charges.
The first count of the amende d complaint charged appellant with, “2nd Degree Assault-
Fear.” (Emphasis in original). The offense description stated that “defendant assaulted
another with a dangerous weapon, to-wit: [d]efendant stabbed T.B. with a knife.”
At a pretrial hearing on motions in limine, the district court heard arguments about
potential evidence concerning appellant’s mental state. During this he aring, the district
court commented that all of the assault char ges “are general intent offenses” and involve
“the infliction or [attempt to] inflict bodily harm rather than the more specific intent crime
of doing an act with intent to cause fear in another of immediate bodily harm.” Appellant’s
trial counsel did not object to the district court’s characterization of the charges.
After the jury was selected for appellant’s trial, the district court judge described the
first count as “2nd Degree Assault.” Appellant challenged the district court’s description
because the amended complaint by its terms charged assault-fear. The prosecutor clarified
that the state’s evidence would prove that a ppellant’s actions resulted in “[i]nfliction of
bodily harm.” The district court judge allowe d the state to proceed under an assault-harm
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theory and commented that “[t] he jury does not see [the co mplaint heading] and has not
seen it” and that the complaint does not allege “a fear-based offense.”
At trial, the prosecution elicited two pieces of testimony that appellant challenges
on appeal. First, the prosecutor asked the a rresting officer, “Based on your training and
experience do you believe [T.B.] to be telling you the truth?” to which the officer answered
“Yes.” Second, the physician’s assistant (PA) who treated T.B. was asked for her opinion
about T.B.’s stab wounds. The PA answered that the stab wounds “matched [T.B.’s] story.”
Appellant did not object to either of these que stions or answers. The jury found appellant
guilty of the four charged offenses.
This appeal followed.
DECISION
Appellate courts review a claim of error in the absence of any objection at trial under
the plain-error test. State v. Myhre, 875 N.W.2d 799, 804 (Minn. 2016). “In order to meet
the plain[-]error standard, a criminal defendan t must show that (1) there was an error,
(2) the error was plain, and (3) the error a ffected the defendant’s substantial rights.” Id.
(citing State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998)). “An error is plain if it is clear
or obvious, which is typically established if the error contravenes case law, a rule, or a
standard of conduct.” State v. Webster , 894 N.W.2d 782, 787 (M inn. 2017) (quotations
omitted). “With respect to the substantial-right s requirement, [the defendant] bears the
burden of establishing that ther e is a reasonable likelihood th at the absence of the error
would have had a significant effect on the jury’s verdict.” State v. Horst, 880 N.W.2d 24,
38 (Minn. 2016) (quotation omitted ). If the three elements of th e plain-error test are met,
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“the appellate court then assesses whether it should address the error to ensure fairness and
the integrity of the judicial proceedings.” Griller, 583 N.W.2d at 740.
Appellant argues that the district court plainly erred by allowing the state to
constructively amend its complain t at trial. Appellant further argues that he is entitled to
relief because the prosecutor elicited vouching testimony from the arresting officer and
because the PA was allowed to testify that T.B.’s injuries were consistent with his
statement that appellant had stabbed him. We address these arguments in turn.
A. The district court did not err when it allowed the state to correct a
careless clerical error.

“The court may permit an indictment or complaint to be amended at any time before
verdict or finding if no additio nal or different offense is ch arged and if the defendant’s
substantial rights are not prejudiced.” Minn. R. Crim. P. 17.05. A constructive amendment
occurs when “the record demonstrates that a defendant is con fronted with [a different or]
additional charge after trial has begun.” State v. Guerra, 562 N.W.2d 10, 13 (Minn. App.
1997).
Appellant argues that the state construc tively amended its complaint when the
district court permitted the state to amend the first (and most serious) count of the complaint
from assault-fear to assault-harm after jury selection, and that the amendment affected
appellant’s substantial right to have “tim ely notice and an opportunity to prepare a
defense.”
In State v. Fleck , 810 N.W.2d 303, 308-10 (Min n. 2012), the supreme court
discussed the difference between assault-fear and assault-harm under Minn. Stat. §609.02,
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subd. 10. It held that assault -fear is a specific-i ntent crime, and that assault-harm is a
general-intent crime. Id. at 309-10.
The state’s reference to assault-fear in the amended complaint’s offense heading
appears to have been a carel ess drafting error. The only reas onable reading of the totality
of the amended complaint is that the reference to assau lt-fear was inadvertent. The
probable-cause portion of the complaint clearly alleges a knife attack on T.B. from behind,
causing him bodily harm. The facts alleged in the complaint would seemingly fail to
support an assault-fear charge , because there is nothing in the complaint from which to
believe that T.B. was in fear before bodily harm was inflicted by the stabbing. He was
stabbed from behind and did not realize that he had been stabbed until he felt blood when
he put his hand to his back.
Appellant cites State v. Gisege to support the argument that allowing the state to
amend the first count of the complaint from a ssault-fear to assault-harm violated the
principle that a defendant “can not be held to answer a ch arge not contained in the
indictment brought against him.” 561 N.W.2d 152, 156 (Minn. 1997) (quotation omitted).
But appellant’s argument ignores the charge description in the amended complaint, which
specifically describes the criminal act as being that “[d]efendant stabbed T.B. with a knife.”
In a pretrial hearing on motions in limine, the district court commented that the charges
involve an allegation of assault-harm and not the “specific intent crime of doing an act with
intent to cause fear in another of immediate bodily harm.” It is evident from the record that
the district court correctly discerned before tr ial that the essence of the first count of the
complaint was an allegation of assault-harm. We see no error in the district court permitting
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the state to correct the obvious—and previously commented-upon—drafting error and try
the case under an assault-harm theory.
Even if we were to conclude that the district court erred in allowing the amendment
at trial, the error was neither plain nor did it affect appellant’s substantial rights. While
plain-error appeals always involve claims of error without the alleged error having been
brought to the district court’s attention, th e issue here was discussed before trial and
appellant expressed no concern about the dist rict court’s pretrial comment on the essence
of what the state alleged. Likewise, appella nt’s counsel expressed no confusion when the
district court stated the case involved an allegation of assault-harm. Any error was not
plain.
Appellant also argues that his substantial right of having adequate notice to prepare
a defense was affected because “[a] defense against assault-fear looks much different than
a defense against assault-harm.” But this argument ignores that the probable-cause portion
of the amended complaint clearly alleged bodily injury caused by stabbing and the
complaint also included charges of fifth- degree assault and domestic assault against
appellant. Those counts of the complaint clea rly alleged general-intent crimes committed
in the same course of events described in the second-degree assault charge. Appellant had
ample notice of the state’s inte nt to prove that appellant st abbed T.B. with a knife and
inflicted bodily harm.
Appellant’s substantial rights were not affected by the di strict court allowing the
state to correct the offense description in co unt one of the complaint so that it conformed
to what everyone involved seems to have known: that this is an assault-harm case.
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B. Any vouching testimony did not aff ect the substantial rights of the
appellant.

Appellant argues that there were two inst ances of vouching testimony which were
plainly erroneous misconduct by the prosecu tion which affected appellant’s substantial
rights. First, appellant argues that the prosecutor plainly erred by asking a police officer if
he believed appellant. Second, appellant ar gues that the PA’s testimony was plainly
erroneous because by stating that the wounds “matched” T.B.’s story, the PA made a
credibility determination of another witness.
The modified plain-error standard applies to the testimony elicited from the officer.
State. v. Ramey , 721 N.W.2d 294, 302 (Minn. 20 06). If the “nonobjecting defendant”
demonstrates “that [an] error occurred and that the error was plain,” then the burden shifts
to the state “to demonstrate lack of prejudi ce; that is, the misconduct did not affect
substantial rights.” Id. “Error is prejudicial if there is a reasonable likelihood that the
absence of the misconduct in question would have had a significant effect on the verdict of
the jury.” State v. MacLennan , 702 N.W.2d 219, 236 (Minn. 2005) (quotation omitted).
Appellate courts also consider “the streng th of evidence against the defendant, the
pervasiveness of improper sugge stions, and whether the defenda nt had an opportunity to
(or made efforts to) rebut the improper suggestions. State v. Cao , 788 N.W.2d 710, 717
(Minn. 2010).
Credibility of a witness is “to be determined by the jury.” State v. Ture, 353 N.W.2d
502, 516 (Minn. 1984). “One witness may not vouch for or against the credibility of another
witness.” State v. Vick , 632 N.W.2d 676, 689 (Minn. 2001) (quotation omitted). A
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prosecutor elicits improper vouching testimony if they ask one witness if they believe
another witness. Van Buren v. State, 556 N.W.2d 548, 550-52 (Minn. 1996).
The state concedes that it was error that is plain for the prosecutor to have asked if
the officer believed T.B. Therefore, the burden shifts to the state to show that the error did
not affect appellant’s substantial rights. The state argues the error did not affect appellant’s
substantial rights because “the [s]tate’s evidence here was strong” and “the prosecutor did
not refer to the relevant part of the officer’s testimony during closing argument.” Appellant
contends his substantial rights were impacted because appellant’s theory of the case was
that T.B. stabbed himself to “get [appella nt] out of the house,” making “credibility []
central in this trial.”
The state’s evidence against appellant was substantial. Beyond T.B.’s testimony,
appellant’s father testified that he saw appellant holding a knife immediately after T.B. was
stabbed, the blade of a knife was found in a garbage can near appellant’s camper, and
appellant communicated twice before the stabbing that he intended to stab his brother. As
the state argues, “a few lines of more than 200 pages of testimony” likely did not have “a
significant effect on the verdict of the jury.” See MacLennan, 702 N.W.2d at 236 (quotation
omitted). We agree. The state has met its burden of demonstrati ng that appellant’s
substantial rights were not affected by the officer’s improper vouching testimony.
Appellant also contends that the tes timony from the PA constitutes plain error
because it is inappropriate vouching testimo ny. The plain-error test applies to this
unobjected-to testimony. See Myhre, 875 N.W.2d at 804.
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Appellant cites State v. Blanche, 696 N.W.2d 351, 374 (Minn. 2005) in support of
his argument that the PA’s testimony that T.B.’s injuries were consistent with T.B.’s claim
of having been stabbed by appellant from behind was plain error. In Blanche, a gang expert
testified that he “never had experience with gang members falsely accusing their own gang
members of crimes.” Id. at 362. The supreme court noted it was “especially troubled” by
this testimony and that it “bordered on” vouching testimony. Id. at 374.
This case is not like that one. Here, the testimony from the PA was limited to her
opinion as a treating health-care professional concerning the source of the injuries for
which she was treating T.B.
As the state argues, the PA “did not testif y as to who inflicted the injuries or the
circumstances under which the w ounds were inflicted.” The st ate needed to prove T.B.’s
wounds were caused by stabbing and not by some other force or mechanism, and the PA
expressed her medical opinion that T.B.’s wounds were consistent with being stabbed from
behind. This type of testimony is typical in cases involving bodily injury. The district court
did not err in admitting the PA’s testimony.
Moreover, even if we were to conclude that admission of the PA’s testimony was
error, such error wa s not plain. Unlike Blanche, where a gang expert opined that a gang
member would not tes tify against a fellow gang member, this case involved a PA giving
an opinion as a health-care provider that T.B.’s injuries were consistent with being stabbed.
And, finally, even if appellant could clear the hurdles of demonstrating error and
that the error is plain, any su ch error did not affect appellant’s substantial rights for the
reasons already discussed. Police arrived at the scene to find appellant—who had made
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threats that very day to stab his brother—ne ar a knife in a garbage can. And appellant’s
father saw appellant holding a knife immediately after the stabbing. The case against
appellant was a strong one and the jury’s verdict was surely unattributable to the PA’s brief
testimony.
In sum, the district court did not err in e ither allowing the state to correct its careless
use of an incorrect offense description in count one of the ame nded complaint or in
allowing the medical testimony of the PA describing T.B.’s wounds and their apparent
cause. The state’s having improperly elicited vouching testimony from a police officer was
error that is plain, but it is not grounds for reversal because appellant’s substantial rights
were not affected by the brief impropriety that surely had no significant effect on the jury’s
verdict.
Affirmed.