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This opinion is nonprecedential except as provided by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
A21-0502

State of Minnesota,
Respondent,

vs.

Michael Lashone Ferguson,
Appellant.

Filed May 16, 2022
Affirmed
Ross, Judge

Hennepin County District Court
File No. 27-CR-19-22574

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

Michael O. Freeman, Hennepin County Atto rney, Nicole Cornal e, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

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

Considered and decided by Ross, Presiding Judge; Worke, Judge; and Kirk, Judge.
*
NONPRECEDENTIAL OPINION
ROSS, Judge
A jury found Michael Ferg uson guilty of second-degree murder while committing
a drive-by shooting. Ferguson challenges the su fficiency of the evid ence disproving he

* Retired judge of the Minnesota Court of A ppeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
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acted in self-defense, contends that the distri ct court wrongly denied his request for jury
instructions on two lesser-included offenses, argues that the district court improperly
instructed the jury on self-defense, and identifies five in stances of alleged prosecutorial
misconduct. Because direct evidence considered in the light most favorable to the verdict
of guilt beyond a reasonable doubt established that Ferguson lacked reasonable grounds to
fear bodily harm when he fired the fatal sh ot, and because neither the district court’s
instruction error nor any alleged prosecutorial misconduct unfairly prejudiced Ferguson’s
defense, we affirm the conviction.
FACTS
Michael Ferguson shot and killed a man, whom we will call Adam in the interest of
privacy. The August 2019 shooting occurre d outside a Minneapolis church, whose
surveillance camera captured the incident on video. Ferguson fired “three [or] four” times
from a car as it pulled away, k illing Adam, who had been standing beside the car arguing
with Ferguson. Ferguson left the scene, and he also fled Minneapolis to Milwaukee, where
police arrested him. The State of Minnesota charged Ferguson with first-degree murder
while committing a drive-by shooting, se cond-degree inten tional murder, and
second-degree murder while committing a driv e-by shooting. Ferguson’s two-day trial
included investigator testimony, the surveillance video, and Ferguson’s testimony.
The district court resolved various disputes over jury instructions. It rejected
Ferguson’s request to include instructions on third-degree murder and second-degree
manslaughter. It gave an instruction on the elements of general self-defense. On Ferguson’s
request, the district court also instructed the jury on justifiable-taking-of-life self-defense.
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The jury rejected Ferguson’s argument that he shot Adam in self-defense. It found
him guilty of second-degree murder while committing a driv e-by shooting but not guilty
on the two other charges.
Ferguson appeals.
DECISION
Ferguson gives five reasons we should re verse his conviction. He argues first that
the state presented insufficient evidence to disprove he shot Adam in self-defense. He
argues second that the district court wron gly refused to instru ct the jury on two
lesser-included offenses. He argues third that its self-defense instruction was flawed. He
argues fourth that the prosecut or engaged in five instances of prosecutorial misconduct.
And he argues fifth that the cumulative effect of the district court’s errors deprived him of
a fair trial. The arguments do not lead us to reverse.
I
We first address Ferguson’s contention that the state’s evidence was insufficient to
support the jury’s verdict. Ferguson tacitly concedes that the evidence meets the elements
of second-degree murder while committing a drive-by shooting. He contends only that the
evidence did not disprove that he acted in self-defense. The record belies his contention.
We must decide whether the state offere d sufficient evidence to prove beyond a
reasonable doubt that Ferguson lacked the requi site mental state to support his claim of
self-defense. Force against another can be ju stified as self-defense in two alternative
statutorily based circumstances, one requiring reasonable grounds for the actor to believe
he is in danger of bodily harm, and the other requiring reasonable grounds for the actor to
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believe he is in danger of grea t bodily harm or death. Minn . Stat. §§ 609.06, subd. 1(3)
(bodily harm, as interpreted by caselaw, see State v. Devens, 852 N.W.2d 255, 258 (Minn.
2014)), 609.065 (great bodily harm or deat h) (2018). For the following reasons, we are
satisfied that the jury receiv ed sufficient eviden ce to find that Ferguson lacked any
reasonable grounds to believe th at he was in any danger of harm at all when he fatally
wounded Adam.
After Ferguson proffered “reasonable evidence” on the elements of self-defense, the
burden shifted to the state to disprove any element of self-defense beyond a reasonable
doubt. See State v. Basting , 572 N.W.2d 281, 286 (M inn. 1997). We apply a
direct-evidence standard of review if the evidence directly supports a challenged element,
but we apply a circumstantial-evidence standa rd of review when the evidence only
inferentially supports a challenged element. See State v. Harris , 895 N.W.2d 592, 599
(Minn. 2017) (restating that direct evid ence “is based on personal knowledge or
observation and . . . proves a fact without inference or presumption”). We need look only
to direct evidence to decide whether the state offered suffici ent evidence on the issue of
self-defense. Our review of th e record informs us that the security-camera video footage
constitutes direct evidence indicating whet her, objectively considered, Ferguson had any
reasonable grounds to believe he was in danger of harm when he fired the fatal shot.
The video footage, which the state show ed the jury, is di rect evidence that
circumstances provided Ferguson no reasonabl e ground to believe that he was in any
danger when he killed Adam. We reach this conclusion afte r considering whether this
evidence, viewed in the light most favorable to the conviction, is sufficient to support the
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guilty verdict. State v. Horst , 880 N.W.2d 24, 40 (Minn. 2016). The footage, which we
describe below, leaves no room to reasona bly doubt that Fergus on did not fire in
self-defense.
The video footage as explained by u ndisputed witness testimony (including
Ferguson’s) depicts eight minutes leading up to the shooting and its immediate aftermath.
Jurors watched Ferguson and his brother standing on the sidewalk near a black car on the
street beside the church. Ferguson was there to meet Adam’s brother, who wanted to fight
Ferguson. A considerable crowd of about 20 people gathered and milled about. Ferguson
argued with Adam and his brother. Ferguson entered the car, sat in the front passenger’s
seat, and closed the door.
The entire shooting spanned several seconds from Ferguson’s first shot to the shot
that struck and killed Adam. Adam had been standing on the sidewalk beside the car after
Ferguson entered it. Ferguson brandished a handgun. Then Ferguson fired the handgun out
of the car’s window. The moment Ferguson fired the first shot is evident, as the bystanders
suddenly and simultaneously all flinched in apparent shock and began running away. With
Adam on foot and Ferguson in the car, Adam and Ferguson moved quickly apart in opposite
directions after the first shot. Ferguson continued shooting from the car window in Adam’s
direction while Adam and others fled. The car had moved a si gnificant distance (at least
100 feet) and completely out of the camera’s view, and Adam had taken seven steps before
Ferguson’s fatal shot struck Adam’s head and dropped him motionless to the ground.
This video evidence directly informed the jury of four circumstances foreclosing the
possibility that Ferguson had a ny reasonable belief that he wa s in danger the moment he
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fired the fatal shot. First, a significant distance separate d Adam from Ferguson when he
fired that shot. Second, Adam had begun moving and was co ntinuing to move on foot
rapidly away from Ferguson, with his back to Ferguson. Third, Ferguson had begun
moving and was continuing to move by car rapidly away from Adam. And fourth, five
seconds elapsed between the moment that Ferguson and Adam had been in close proximity
to one another and the moment that Fer guson shot and killed Adam. No person in
Ferguson’s shoes could have r easonably perceived any danger of harm when he fired the
fatal shot. Ferguson told the ju ry that he feared that Adam might have a gun and that he
overheard Adam or Adam’s brother use a slang phrase implying that they intended to shoot
at him. For the purpose of our review, we ca n assume that the jury believed these claims.
And we can also assume that the jury thought that Ferguson’s concern was reasonable. But
his claim of self-defense failed based on the di rect evidence showing that, when he fired
the fatal shot, the circumstances left him no reason to still believe th at Adam could harm
him. In sum, the video foot age constituted sufficient direct evidence to prove beyond a
reasonable doubt that Ferguson did not kill Adam in self-defense.
II
Turning to Ferguson’s first jury-instruc tion challenge, we are unpersuaded by his
contention that the district court incorrectly denied his re quest to instru ct the jury on
third-degree murder and second-degree mansla ughter. We review a denial of a requested
lesser-included-offense instruction for an abuse of discretion. State v. Dahlin, 695 N.W.2d
588, 597 (Minn. 2005). But the district court has no discretion to deny a defendant’s request
for a lesser-included-offense instruction if “t he lesser offense is included in the charged
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offense,” “the evidence provides a rational basis for acquitting the defendant of the offense
charged,” and “the evidence provides a rati onal basis for convicting the defendant of the
lesser-included offense.” Id. at 598. The last two elements defeat Ferguson’s challenge.
The evidence here allows for no rational ba sis to acquit Ferguson of the charged
offense of second-degree murder while committing a drive-by shooting and convict him of
either of the included offe nses—third-degree murder or second-degree manslaughter.
Analyzing whether a rational basis existed for the jury to acquit on the greater charge and
convict of the lesser charge, we consider the evidence in the light that most favors the
defendant. Id. The evidence could not have allowed for Ferguson’s conviction on either of
the lesser offenses without also resulting in a conviction of second-degree murder while
committing a drive-by shooting. Only the ma nner of the homicidal action differentiates
third-degree murder from second-degree murder while committing a drive-by shooting. In
the latter, the death of anothe r is caused by “committing or attempting to commit a drive
by shooting.” Minn. Stat. § 609.19, subd. 1( 2) (2018). And a drive-by shooting occurs
when a person, “while in or having just exited from a motor vehicle, recklessly discharges
a firearm at or toward another motor vehicle or a building . . . or toward a person.” Minn.
Stat. § 609.66, subd. 1e(a), (b) (2018). The killing in a third-degree murder is caused by
“an act eminently danger ous to others and evincing a de praved mind, without regard for
human life.” Minn. Stat. § 609.195(a) (2018). Fe rguson asserts that a rational basis exists
for acquitting him of second- degree murder while committing a drive-by shooting and
convicting him of third-degree murder because, he argues, the evidence shows that he fired
his gun into a crowd of people. But his firing into a crowd also satisfies the elements of
8
second-degree murder while committing a driv e-by shooting because he fired, killing
Adam, from inside the car. The evidence gave the ju ry no rational basi s to acquit on the
charged offense and convict on the lesser offense.
The same is so regarding the lesser offe nse of second-degree manslaughter. In a
second-degree manslaughter, th e death of another results from an act of culpable
negligence, which is gross negligence or re cklessness. Minn. Stat. § 609.205(1) (2018);
State v. Schnagl , 907 N.W.2d 188, 202 (Minn. App. 2017), rev. denied (Minn. Feb. 28,
2018). Killing another by recklessly firing into a crowd from a car, as it occurred here,
affords no rational opportunity for the jury to convict for a reckless killing while acquitting
for a drive-by killing.
III
We turn next to Ferguson’s challenges to the district court’s jury instructions on
self-defense. He contends the district court should have in structed the ju ry only on
self-defense generally, not on both self-def ense generally and justifiable-taking-of-life
self-defense. But he asked for both instructi ons, affecting our review standard. Although
we review a district court’s jury instructions for an abuse of discretion, we review only for
plain error where, as here, a pa rty invites the alleged mistake. State v. Carridine , 812
N.W.2d 130, 142 (Minn. 2012). To prevail un der plain-error review, an appellant must
establish that an error occurred, that the error was plain, an d that the error affected his
substantial rights. State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998). If he meets all three
elements, we will reverse only if reversal is necessary to ensure the fairness and integrity
of the judicial proceedings. Id. The state correctly concedes that the district court
9
committed a plain error by giving both instructions. An error is “plain” if it is clear or
obvious, such as when the error contravenes caselaw, a rule, or a standard of conduct. State
v. Ramey, 721 N.W.2d 294, 302 (Minn. 2006). And it is settled that a district court errs by
instructing the jury on justifiable-taking-of-life self-defense when the defendant asserts, as
Ferguson asserted, that the killing was unintentional. State v. Pollard , 900 N.W.2d 175,
179 (Minn. App. 2017). We therefore consider whether the plain error affected Ferguson’s
substantial rights.
The erroneous instruction di d not affect Ferguson’s subs tantial rights. A plainly
erroneous jury instruction affects substantial rights if there is a “reasonable likelihood that
giving the instruction . . . had a signi ficant effect on the jury verdict.” State v. Gomez ,
721 N.W.2d 871, 880 (Minn. 2006). The jury could not have credited Ferguson’s claim of
self-defense under either inst ruction unless it first found that Ferguson reasonably feared
that Adam would harm him. And as outlined above in our discu ssion of the evidence
against Ferguson’s claim of self-defense, it is not reasonably likely that the jury would have
entered a verdict of not guilty if it received only the general self-defense instruction.
Because the erroneous instruc tion did not affect Ferguson’s substantial rights, the error
does not support reversal.
IV
Ferguson cites five instances of alleged prosecutorial misconduct, only one of which
drew his objection during trial. We revi ew the first four on ly for plain error, Ramey,
721 N.W.2d at 302, and the objected-to inst ance for harmless error beyond a reasonable
10
doubt, State v. Swanson, 707 N.W.2d 645, 658 (Minn. 20 06). None of the instances lead
us to reverse.
Misconduct in Opening Statements?
Ferguson’s assertion of prosecutorial mi sconduct during opening statements fails.
He asks us to fault the prosecutor for saying that a named participant at the scene had “said,
‘We’re going to have a fist fight .’” It is true that a prosecut or cannot refer to information
in an opening st atement if the prosecuto r has some indication that the witness who can
attest to the facts would not testify. State v. Gaitan, 536 N.W.2d 11, 16 (Minn. 1995). The
prosecutor did not intend to (and did not) call the named partic ipant to testify, but he did
call a police sergeant who testified that Fergus on told him that the person threatened to
fight him. The statement does not constitute misconduct.
Misconduct in Three Lines of Cross-Examination?
Ferguson’s three assertions of prosecut orial misconduct during cross-examination
succeed partially in that two of them involve improper ques tioning. But neither of these
two affected his substantial rights.
1. Cross-Examination: Two Prior Felonies
The first of the three allegedly improper lines of questioning called attention to
Ferguson’s prior felonies, as follows:
Q: What makes the felonies of [Adam] and [another
participant] so much scarier than your own felonies?
A: Mine’s was a robbery.
Q: You mentioned their reputation for carrying guns?
A: Yes.
Q: That’s a reputation you have as well, isn’t it?
A: No.
11
Q: Was your 2015 conviction not an armed robbery?
A: Yeah, it was.

This was improper impeachment. The trial cour t had allowed the pros ecutor to introduce
two sanitized felonies as impeachment evid ence if Ferguson testified. Impeachment
evidence of a previous felony conviction is sanitized when it is admitted “without revealing
the nature or details of the convi ction at the time of impeachment.” State v. Hill ,
801 N.W.2d 646, 650 n.1 (Minn. 2011). By di recting Ferguson to describe why others’
convictions were “scarier” than his, the pr osecutor led Ferguson to identify one of his
felonies as a “robbery.” He then immediately introduced Ferguson’s reputation for carrying
guns and followed by announcing that the conviction was for an armed robbery. The state
defends this conduct first by asserting that Fe rguson “spontaneously offered the name of
his 2015 offense” and second by asserting that Ferguson “opened the door” to questioning
about details of his felonies. We reject both assertions.
Ferguson did not “spontaneously” announce the nature of the prior conviction; the
prosecutor’s questions prompted him to describe why his were not as scary as the others’
violent crimes. And the prosecutor, not Ferguson, specified that the “robbery” was “an
armed robbery.” Nor did Ferguson open the door to discuss the nature of the prior felonies.
The door is opened when “one party by introducing certain ma terial . . . creates in the
opponent a right to respond with material th at would have otherwise been inadmissible.”
State v. Valtierra , 718 N.W.2d 425, 436 (Minn. 2006). We have examined Ferguson’s
direct examination and see nothing in his discussion of the behavior of Adam and the other
named participant that introduced the information about Ferg uson’s prior convictions the
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prosecutor sought to get before the jury. Nor did Ferguson testify about his own character
in a way that invited the excursion. The line of questioning was improper.
But we hold that the improper questioni ng did not affect Fe rguson’s substantial
rights. We so hold after “we [have] c onsider[ed] various factors, including the
pervasiveness of improper suggestions and the strength of evidence against the defendant.”
State v. Parker, 901 N.W.2d 917, 926 (Minn. 2017). Although the inquiry was limited, the
district court had already implicitly determin ed that revealing any details of the prior
convictions would be unfair, re quiring only sanitized refere nces for impeachment. The
evidence of Ferguson’s guilt, however, was so overwhelming that the only possible avenue
of acquittal was a self-defense theory that was almost entirely implausible considering the
video footage depict ing Ferguson killing th e fleeing and nonthr eatening Adam. The
footage was not the only obstacl e to the jury’s believing Ferg uson’s claimed fear for his
own life; the claim depended on Ferguson’s credibility, which the state brought into serious
doubt with undisputed evidence that Ferguson ha d fled the scene, fled the state, lied to
police about being at the scene, and lied to police about his reason for being there.
2. Cross-Examination: Ineligibility to Possess Firearm
The second challenged line of cross-examin ation regarded the gun Ferguson used
to kill Adam and was also improper. It went as follows:
Q: You don’t recall how you got this loaded gun?
A: No.
Q: And you weren’t supposed to be carrying a loaded gun
anyways, were you?
A: No.
Q: In fact, you can’t possess a firearm for the rest of your life,
correct, not legally?
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A: Not legally.
Q: But you do it anyways, right?
A: Yeah.
Q: Okay. So you’re carrying this gun you ’re not supposed to
have on August 24th and you go to meet [Adam’s brother]?
A: Yes.

Ferguson accurately contends that this line of questioning about his ineligibility to possess
a firearm exposed evidence of a prior bad act under Minnesota Rule of Evidence 404(b),
which required the state to provide prior noti ce of its intent to introduce it. The state’s
counter contentions are specious. It maintains that the prosecutor di d not venture into a
prior bad act requiring notice under rule 404( b) because the prosecutor never actually
mentioned “the charge of possession of a fi rearm by an ineligible person” but merely
“referred to a consequence of the convic tions about which [Ferguson] had already
testified.” The state also maintains that intr oducing this evidence was fair to impeach
Ferguson’s testimony that he did not have a reputation for carrying guns.
The state’s claim that the prosecutor re ferenced only “the consequence” of the
conviction that Ferguson himself introduced fails for two reas ons. The first reason is that
the prosecutor referred to more than the cons equence (meaning, presumably, the fact of
Ferguson’s ineligibility to possess a firearm resulting from the armed robbery conviction);
the prosecutor referred instead to Ferguson’s failure to abide by the consequence—twice
informing the jury that Ferguson had been doing what he was “not supposed” to be doing,
violating a firearm restriction that was in plac e “for the rest of [his] life.” And we have
already explained why we reject the state’s contention that Fergus on, rather than the
prosecutor, instigated the evidence of Ferguson’s armed robbery. The second reason is that
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this line of questioning never explored anything about Ferguson’s “reputation” for carrying
guns; it explored only the wrongfulness of his carrying guns.
This line of questioning cons titutes plain-error prosecutorial misconduct. But the
misconduct did not affect Ferguson’s substantial rights for the same reasons the other line
of improper questioning is not prejudicial. And the district court also immediately
cautioned the jury not to convict Ferguson based on the prior bad acts and then later offered
to instruct the jury more formally in that regard. Ferguson declined.
3. Cross-Examination: Finger-as-Gun Demonstration
We see no misconduct in the third challenged line of cross-examination. It went as
follows:
Q: Could you point at me right now, Mr. Ferguson.
A: Can I point at you?
Q: Point at me.
A: (The witness complies)
Q: You pointed at me with your right hand, right?
A: Yeah.
Q: Let’s say hypothetically I had a gun, I don’t, but if I did do
you think you could shoot me from where you’re sitting?
A: Maybe.
Q: Now, if you wanted to s care me why would you have to
pull the trigger?
A: If I wanted to scare you why would I pull the trigger?
Q: Right, don’t you think I’d be scared eno ugh with a gun
pointed at me?
A: No.

The exchange continues with the prosecutor asking Ferguson about ways he could shoot
the gun so as only to frighten rather than kill.
We are unpersuaded by Ferguson’s argument that th is questioning was unfairly
inflammatory and served no legitimate pu rpose. The questioni ng led Ferguson to
15
demonstrate that he knew he could fire a weapon in a direction that would cause no harm.
This was relevant both to the elements of the offense and the elements of Ferguson’s
self-defense claim. And asking Ferguson to use his finger in the demonstration was
certainly not inflammatory in a case involving a real gun fired into a crowd. We hold that
this questioning was not improper under our plain-error review.
Misconduct in Closing Arguments?
Ferguson objected during trial concerning his final allegation of prosecutorial
misconduct, which involved the prosecutor’s statements dur ing closing arguments. We
conclude that the alleged misconduct was harmless beyond a reasonable doubt. Ferguson
contends that the prosecutor improperly asked the jury to consider the fact that the shooting
took place near a church by saying, “I hope it’s not lost on everyone, he was lighting up a
church with that firearm.” Ferguson objected, and the district court directed the prosecutor
to move on. The prosecutor used the same phrasing later, saying, “He lit up a church.”
Ferguson asks us to consider the fact that faith is deeply personal and that highlighting the
setting of this shooting “implicitly invited the jurors to reflect on their own religious
practices or fears they might have about the increase in violence and fatal shootings in
places of worship.” The prosec utor’s comment did not merely provide context about the
location of the shooting; it instead included inflammatory verbiage calling special attention
to a circumstance that was not germane to an y of the elements of the offense or of
self-defense. Stressing that Ferguson “was lighting up a church with a firearm” and
emphasizing his “hope [that] it’s not lost on everyone” (meaning, every one of the jurors),
was needlessly inflammatory. But we hold th at it was also harmless beyond a reasonable
16
doubt given its isolated use and the overwhel ming evidence of Fe rguson’s guilt, already
discussed.
V
Ferguson argues finally that, even if no i ndividual trial error warrants reversal, the
cumulative effect of all the errors does. But three of the seven alleged errors were not errors
at all, and the four errors we have recognized could not on their own or in the aggregate
have reasonably affected the verdict under the circumstances of this case.
Affirmed.