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This opinion is nonprecedential except as provided by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
A21-0446

State of Minnesota,
Respondent,

vs.

Christopher Scott Bailey,
Appellant.

Filed February 22, 2022
Affirmed in part, reversed in part, and remanded
Cochran, Judge

St. Louis County District Court
File No. 69HI-CR-19-386

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

Kimberly J. Maki, St. Louis County At torney, Stacey Sundquist, Assistant County
Attorney, Hibbing, Minnesota (for respondent)

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

Considered and decided by Cochran, Pr esiding Judge; Connolly, Judge; and Smith,
John, Judge.


 Retired judge of the Minnesota Court of A ppeals, serving by appoi ntment pursuant to
Minn. Const. art. VI, § 10.
2
NONPRECEDENTIAL OPINION
COCHRAN, Judge
Following a jury trial, appe llant was convicted of two co unts of first-degree drug
sale, one count of first-degree drug possessi on, and one count of second-degree drug
possession. In this direct appeal, appellant argues that he is entitled to a new trial because
the prosecutor committed misconduct. Alternatively, appellant argues that his conviction
of second-degree drug possession must be vaca ted because it is a le sser-included offense
of one of his first-degree drug-sale convictions.
We first conclude that the alleged pr osecutorial misconduct does not warrant
reversal of his convictions a nd a new trial. We next conc lude that the second-degree
drug-possession charge is a le sser-included offense of one of appellant’s first-degree
drug-sale convictions and, therefore, the district court erred when it convicted appellant of
that offense. Accordingly, we affirm in part, reverse in part, and remand with instructions
to vacate the conviction of second-degree drug possession.
FACTS
The state charged appellant Christopher Bailey with two counts of first-degree sale
of a controlled substance, one count of firs t-degree possession of a controlled substance,
and one count of second-degree possession of a controlled substance following a search of
Bailey’s residence in Hibbing, Minnesota. The following facts were established at Bailey’s
jury trial.
On May 20, 2019, officers with the Lake Superior Drug and Violence Task Force
executed a search warrant at Bailey’s resi dence. Officers from the St. Louis County
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sheriff’s office and the Hibbing police department assisted. The search warrant authorized
officers to search Bailey’s person, house, an d two detached garages for illegal drugs and
other evidence of illegal drug activity. Officers apprehended Bailey and a second
individual, S.J., in the house.1
Officers found the following items in the house: methamphetamine, heroin,
marijuana, mushrooms, more than $9,000 in ca sh, digital scales, and drug paraphernalia.
In one of the detached garages, officers found more methamphetamine and a scale.
Officers also found a key on Bailey’s person that opened a padlock located on the detached
garage where the methamphetamine was found.
Officers submitted some of the drugs found during the search for testing. The
methamphetamine submitted for testing weighed over 3,000 gr ams. The heroin weighed
over ten grams. Six bags that contained drugs found during the search were also submitted
for DNA testing. One bag, which contained heroin, showed a mixture of DNA from two
or more individuals with the “[m]ajor male DNA profile” matching Bailey. Another bag,
which contained methamphetamine, showed a major mixture of DNA profiles from which
Bailey could not be excluded as “a possible contributor,” but an estimated 99.99999994%
of the general population could be excluded.
The state initially charged Bailey with two counts of first-degree sale of a controlled
substance—17 grams or more of methamphetamine (count one) and ten grams or more of
heroin (count two)—in violation of Minn. Stat. § 152.021, subds. 1(1), (3) (2018). At trial,

1 S.J. was the subject of an outstanding a rrest warrant for fifth-degree possession of a
controlled substance.
4
the state amended the complaint to add two more charges: first- degree possession of a
controlled substance—50 grams or more of methamphetamine—in violation of Minn.
Stat. § 152.021, subd. 2(a)(1) (2018) (cou nt three), and second-degree possession of a
controlled substance—six grams or more of heroin—in violation of Minn. Stat. § 152.022,
subd. 2(a)(3) (2018) (count four).
Before trial, Bailey filed several motions in limine including a re quest to prohibit
testimony about any investigation or surveilla nce operations involving Bailey prior to or
after the date that the drugs were discovered on his property. In his motion, Bailey argued
that any allegations relating to “surveillance, information, or investigation of Mr. Bailey
on any date prior to, or after, the date of the search in this case . . . are not relevant, unduly
prejudicial, and not properly admissible as ‘other crimes’ evidence.” At a pretrial motion
hearing, the state agreed to establish at trial only that Bailey had been under investigation
and that a search warrant had been issued for his residence.
Bailey’s main argument on appeal arises from the closing arguments made at trial.
During closing arguments, Bailey’s attorney argued that the drugs recovered from Bailey’s
residence belonged to S.J.—the other individual apprehended at the house—not to Bailey,
and that the state had failed to prove beyond a reasonable doubt that Bailey had actually or
constructively possessed the drugs. Bailey’s atto rney further argued that the officers that
executed the search warrant had an “agenda” to personally targ et and convict Bailey. In
response, the prosecutor made the following statement during rebuttal argument:
[Defense counsel] is right; the Task Force does have an agenda
and you heard about that. Their agenda is to investigate people
for selling and possessing da ngerous drugs within the
5
community. They weren’t spec ifically targeting Mr. Bailey
just because he was Mr. Bailey. They were targeting
Mr. Bailey because he was selling large quantities of
methamphetamine and heroin in the community.

Bailey’s attorney objected to the final senten ce of this statement on the grounds that it
asserted facts not in evidence and violated Minnesota Rule of Evidence 404(b). Bailey’s
attorney also moved for a mistrial on the same basis, arguing that the statement constituted
prosecutorial misconduct. The district cour t sustained the objection but denied Bailey’s
motion for a mistrial. The district court then repeated, as a curative instruction, a general
instruction reminding the jury that “attorneys are officers of the court” and that “arguments
or remarks of an attorney are not evidence.” The district court went on to remind the jury
that “[i]f the attorneys or [the district court] have made . . . any statement as to what the
evidence is which differs from your own recollection of the evidence, you should disregard
the statement.”
The jury found Bailey guilty on all four counts. The district court entered
convictions on all four counts and imposed sentences for the sale counts (one and two) but
not the possession counts (three and four).
Bailey then moved for a new trial. Th e motion was based in part on alleged
prosecutorial misconduct. Th e district court denied Baile y’s motion, concluding that
Bailey was not denied a fair trial.
DECISION
Bailey raises two arguments on appeal. First, he argues that this court should reverse
his convictions and remand for a new trial be cause the prosecutor engaged in misconduct
6
during closing argument.2 Second, and in the alternative, he argues that his conviction of
second-degree possession of six or more grams of heroin (count f our) must be vacated
because it is a lesser-included offense of his conviction of first-degree sale of ten or more
grams of heroin (count two). We address each argument in turn.
I. Bailey is not entitled to a new trial based on alleged prosecutorial misconduct
during closing argument.

A prosecutor engages in misconduct when they “violate[] clear or established
standards of conduct, e.g. rules, laws, orders by a district court, or clear commands in this
state’s case law.” State v. McCray , 753 N.W.2d 746, 751 (M inn. 2008) (quotation
omitted). When prosecutorial misconduct claims arise from a closing argument, courts
“look to the closing argument as a whole, rath er than to selected phrases and remarks.”
State v. Hallmark , 927 N.W.2d 281, 308 (Minn. 2019) (quotation omitted). “A
prosecutor’s closing argument should be based on the evidence presented at trial and
inferences reasonably drawn from that evidence.” State v. Bauer, 776 N.W.2d 462, 475
(Minn. App. 2009) (quotation omitted). A pr osecutor engages in mi sconduct when they
refer to facts that were not admitted as evidence. State v. Mayhorn , 720 N.W.2d 776,
788-89 (Minn. 2006).
Bailey argues that the prosecutor engaged in misconduct by arguing facts not in
evidence during closing argument. He specific ally contends that the prosecutor engaged
in misconduct when she stated in rebuttal argument that law enforcement was “targeting

2 Bailey does not challenge the district court’s denial of his motion for a new trial. Instead,
he directly challenges the district court’s de termination during trial that the prosecutor’s
alleged misconduct in closing argument did not require a new trial.
7
Mr. Bailey because he was selling large quantities of methamphetamine and heroin in the
community.” He argues that this statement asserted facts not in evidence because it implied
that Bailey was under prior investigation by law enforcement for drug activity—evidence
that the state had expressly agreed not to introduce at trial. Bailey also argues that the
statement improperly introduced evidence of prior bad acts in violation of Minnesota Rule
of Evidence 404(b). The stat e contends that the prosecutor’s statement did not constitute
misconduct but rather was a justified rebuttal argument “entirely supported” by the facts in
evidence. The district cour t concluded that, “although a close call,” the statement did
constitute prosecutorial misco nduct by interjecting other-cri mes evidence in to the jury
trial.
Assuming without deciding that the prosecutor’s statement constituted misconduct,
we turn to the standards of review applied to determine whether prosecutorial misconduct
warrants a new trial. The standard of review for a prosecutorial-misconduct claim depends
on whether the defendant objected during trial. State v. Nissalke, 801 N.W.2d 82, 103, 105
(Minn. 2011). Where, as here, the defendant has objected to alleged misconduct, we apply
“a two-tiered harmless-error test under which th e standard of review varies based on the
seriousness of the misconduct.” State v. Whitson, 876 N.W.2d 297, 304 (Minn. 2016).3 In

3 We note that recent supreme court cases have questioned whether the two-tiered standard
for reviewing objected-to misconduct remains viable. See State v. Carridine, 812 N.W.2d
130, 150 (Minn. 2012) (discussing State v. Caron , 218 N.W.2d 197, 200 (Minn. 1974),
which sets forth the two-tiered approach); Whitson, 876 N.W.2d at 304 n.2 (stating that
“[r]ecent cases have questioned whether the two-tiered Caron standard . . . remains viable”
but declining to resolve the i ssue). But no supreme court ca se has expressly rejected or
revised the two-tiered standard set forth in Caron. Therefore, the existing two-tiered
8
cases involving “unusually serious” objected-to prosecutorial misconduct, appellate courts
must be certain beyond a reasonable doubt that the misconduct was harmless before
affirming. Carridine, 812 N.W.2d at 150. In cases involving “less serious” objected-to
prosecutorial misconduct, appellate courts mu st analyze “whether the misconduct likely
played a substantial part in influencing the jury to convict.” Id.
Bailey argues that the prosecutor’s stat ement constituted “unusually serious”
misconduct because it violated bo th a rule of evidence and the state’s agreement not to
introduce certain evidence at trial. The stat e contends that the prosecutor’s statement
should be treated as “less serious” misconduct.
We conclude that the standard for “less se rious” misconduct applies. As an initial
matter, the district court’s acknowledgement th at it was a “close call” as to whether
misconduct occurred at all supp orts the conclusion that th e alleged misconduct was “less
serious.” More significantly, the prosecuto r’s statement was not so egregious that it
constitutes “unusually serious” misconduct under Minnesota case law.
Minnesota courts have generally found se rious prosecutorial misconduct only in
extreme circumstances. In State v. Porter, for example, the supreme court found that “[t]o
the extent that the closing argument suggested to the jurors that they would be suckers if
they acquitted [the defendant],” the prosecutor engaged in serious misconduct that “struck
at the heart of the jury syst em.” 526 N.W.2d 359, 365 (M inn. 1995). Similarly, in
State v. Hoppe, this court found that statements made by the prosecutor during closing

standard applies in this case. See State v. Curtis , 921 N.W.2d 342, 346 (Minn. 2018)
(explaining that the court of appeals is bound by supreme court precedent).
9
argument “far exceeded the bounds of an ethical professional summation” where the
prosecutor inappropriately referred to charac ter evidence, suggested that the defendant
would continue to engage in criminal activ ity unless convicted, implied that a conviction
was necessary to protect societ y, disparaged the defense by stating that the defendant’s
argument was ridiculous, and warned the jury no t to be “snowed” by the defense.
641 N.W.2d 315, 319-22 (Minn. App. 2002), rev. denied (Minn. May 14, 2002). In State v.
Steward, by contrast, the supreme court held that a prosecutor’s patte rn of misconduct,
which included improperly introducing eviden ce of a defendant’s prior bad acts and
suggesting that the jury draw inferences from facts not in evidence, did not amount to
serious misconduct. 645 N.W.2d 115, 121-25 (Minn. 2002). The supreme court reached
this conclusion in part because the prosecutor’s theme, “in context, [could] be seen as
refuting appellant’s self-defense theory.” Id. at 125.
With these examples in mi nd, we conclude that the severity of the misconduct
alleged in this case—the prosecutor’s violati on of a pretrial agreem ent not to introduce
certain evidence and the rule against introd ucing evidence of prior bad acts—is most
similar to the misconduct at issue in Steward. The prosecutor’s statement could have
reasonably been understood by the jury as re futing Bailey’s own argument regarding law
enforcement’s “agenda” against him and as a reference to facts al ready in evidence—
namely, that he had been ch arged with multiple counts of drug sale and possession.
Therefore, the prosecutor’s alleged miscon duct here does not approximate the level of
severity, illustrated in other examples relayed above, that would be sufficient to categorize
it as “unusually serious.”
10
Having determined that the prosecutor’s a lleged misconduct is “less serious,” we
next apply the relevant harmless-error standard—“whether the misconduct likely played a
substantial part in influenc ing the jury to convict.” Carridine, 812 N.W.2d at 150. To
make this determination, we “examine the re cord as a whole and consider the strength
of the state’s evidence and the we akness of any defense evidence.” State v. Borg ,
806 N.W.2d 535, 557 (Minn. 2011) (quotation omitted).
Bailey contends that the pr osecutor’s alleged misconduct was not harmless. He
argues that the statement deprived him of a fair trial because (1) the district court’s
“rereading of a generic instruction did not cu re the misconduct,” (2) the evidence against
Bailey “was not so strong that the prosecuto rial misconduct did not impact the jury’s
decision to convict,” and (3) th e jury’s quick verdict did not suggest, as the district court
reasoned in denying Bailey’s motion for a new trial, that the prosecutor’s statement did not
have significant impact. The state counters that the defense “invited” the prosecutor’s
statement about law enforcem ent’s motives by asserting that law enforcement had an
“agenda” against Bailey. The state further argues that the alleged misconduct was harmless
because the evidence against Bailey was so overwhelming that the prosecutor’s statement
could not have affected the verdict.
For two primary reasons, we conclude th at it was unlikely that the misconduct
played a substantial part in influencing the ju ry to convict. First, viewing the closing
argument as a whole, the prosecutor’s statement was brief and did not “permeate the entire
argument” or establish a “theme.” See State v. Matthews , 779 N.W.2d 543, 552
(Minn. 2010) (finding that defendant’s substantial rights were not affected by prosecutor’s
11
alleged misconduct during closing arguments where prosecutor’s improper statements did
not “permeate the entire argument”); State v. Johnson , 616 N.W.2d 720, 729-30
(Minn. 2000) (finding no prosec utorial misconduct in part because prosecutor did not
emphasize allegedly inadmissible testimony and “that testimony in no way provided a
theme”). The statement at issue here consis ted of only a single sentence of the rebuttal
argument. On the other hand, the entire clos ing argument (including rebuttal) spanned
approximately 13 pages of transcribed argument. This brief statement is unlikely to have
had a substantial part in influencing the jury’s decision to convict. See State v. Wren ,
738 N.W.2d 378, 392 (Minn. 2007) (finding th at misconduct spanning three pages in a
70-page closing argument did not affect defendant’s substantial rights).
Second, the strength of the record evidence against Bailey supports the conclusion
that the prosecutor’s statement was harmless. “As a general rule, the stronger the evidence
of guilt, the less likely that any error is prejudicial.” State v. Dillon, 532 N.W.2d 558, 558
(Minn. 1995). And overwhelming evidence ag ainst an appellant may be enough to
establish that a prosecutor’s improper statement in closing argument did not substantially
prejudice a jury and impair a defendant’s right to a fair trial. See, e.g., State v. McNeil ,
658 N.W.2d 228, 236 (Minn. App. 2003) (finding that prosecutor’s improper statements in
closing arguments did not impair defendant’s ri ght to fair trial “giv en the extraordinary
weight of the evidence”).
Here, the record reflects that the office rs who executed the search warrant at
Bailey’s residence discovered large amounts of methamphetamine, heroin, and cash along
with digital scales, drug paraphernalia and other drugs. Bailey’s DNA was present on two
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of the bags containing illegal substances. And, significantly, the state introduced evidence
that the property belonged to Bailey and recordings of calls Bailey made from jail in which
he made comments suggesting that he had engaged in se lling methamphetamine—strong
circumstantial evidence supporting a th eory of constructive possession. See
State v. Barker, 888 N.W.2d 348, 353-54 (Minn. App. 2016) (explaining that constructive
possession may be established “by proof of a strong probability that the defendant was at
the time consciously exercising dominion and control over [the relevant item], even if the
item was in a place to which others had access” (quotation omitted)).
In sum, the minimal role of the prosecutor’s statement in the closing argument as a
whole and the strength of the evidence against Bailey lead us to conclude that the alleged
prosecutorial misconduct did not play a substantial part in influencing the jury to convict.
Accordingly, the alleged prosecutorial misc onduct was harmless and does not require
reversal.4

4 We note that even if we were to apply the stricter standard of review for “unusually
serious” misconduct under Caron, we would reach the same result. “Unusually serious”
misconduct is reviewed to determine whet her the misconduct was harmless beyond a
reasonable doubt. Whitson, 876 N.W.2d at 304. Misc onduct is harmless beyond a
reasonable doubt “if the verdict actually rendere d was surely unattributab le to the error.”
State v. Cabrera, 700 N.W.2d 469, 474 (Minn. 2005) (quotation omitted). As discussed in
detail above, the minimal role of the prosecutor’s statement in the closing argument as a
whole and the strength of the ev idence against Bailey would lead us to conclude that the
jury’s verdict was “surely unattributable” to the prosecutor’s statement and the alleged
misconduct was therefore harmless beyond a reasonable doubt.
13
II. The district court erred by convicting Bailey of second-degree possession of
heroin because it is an included offense of first-degree sale of heroin.

Bailey argues that the district court erred by convicting him of second-degree
possession of heroin (count four) because it is a lesser-included offense of first-degree sale
of heroin (count two). He c ontends that his conviction on c ount four should therefore be
vacated. The state agrees, as do we.
Under Minnesota law, a defendant “may be convicted of either the crime charged
or an included offense, but not both.” Minn. Stat. § 609.04, subd. 1 (2020). An “included
offense” is defined in part as “a crime ne cessarily proved if the crime charged were
proved.” Id., subd. 1(4). To determine whether one offense is “necessarily proved” by the
proof of another, courts compare the st atutory definitions of the offenses. State v. Carr,
692 N.W.2d 98, 102 (Minn. App. 2005).
Comparing the statutory definitions at i ssue here, second-degree possession of six
or more grams of heroin is necessarily proved when first-degree sale of ten or more grams
of heroin is proved. A person is guilty of the first-degree sale offense if they “unlawfully
sell one or more mixtures of a total weight of ten grams or more containing heroin” within
a 90-day period in violation of Minn. Stat. § 152.021, subd. 1(3). A person is guilty of the
second-degree possession offense if they “unlaw fully possess one or more mixtures of a
total weight of six grams or more containing heroin” in violation of Minn. Stat. § 152.022,
subd. 2(a)(3). Because Bailey could not have possessed ten or more grams of heroin with
intent to sell (count two) with out possessing at least six grams of heroin (count four), he
cannot be separately convicte d on count four. We theref ore reverse and remand with
14
instructions to vacate the judgment of conviction of second-degree possession of six grams
or more of heroin but otherwise leave the ju ry’s guilty verdict for that offense intact. See
Loving v. State, 891 N.W.2d 638, 649 (Minn. 2017) (explaining that the supreme court has
typically “vacated convictions of unsentenced, duplicative offenses and left the jury’s
guilty verdicts on those counts intact”).5
Conclusion
In sum, we conclude that the prosecutorial misco nduct Bailey alleges does not
warrant reversal of his convictions. Howe ver, the district court erred by entering a
conviction on count four because it is a lesser-included offense of count two. Therefore,
we reverse and remand to the district court to vacate Bailey’s conviction on count four.
Affirmed in part, reversed in part, and remanded.

5 According to the supreme cour t, “the proper procedure to be followed by the [district]
court when the defendant is convicted on more than one charge for the same act is for the
court to adjudicate formally and impose sent ence on one count only. The remaining
conviction(s) should not be adjudicated at [that] time. If the adjudicated conviction is later
vacated for a reason not relevant to the remaining unadjudicated conviction(s), one of the
remaining unadjudicated convictions can th en be formally adjudicated and sentence
imposed . . . .” State v. LaTourelle, 343 N.W.2d 277, 284 (Minn. 1984).