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This opinion is nonprecedential except as provided by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
A21-0844

State of Minnesota,
Respondent,

vs.
Gary Alvin Paananen,
Appellant.

Filed August 22, 2022
Affirmed in part, reversed in part , and remanded
Bryan, Judge

Washington County District Court
File No. 82-CR-19-2361

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

Kevin Magnuson, Washington County Attorney, Nicholas A. Hydukovich, Assistant
County Attorney, Stillwater, Minnesota (for respondent)

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

Considered and decided by Bryan, Presiding Judge; Gaïtas, Judge; and Klaphake,
Judge.
*

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
2
NONPRECEDENTIAL OPINION
BRYAN, Judge
In this direct appeal f rom two convictions of felony domestic assault , appellant
raises the following three arguments: (1) the evidence presented against him was
insufficient to support one of his convictions ; (2) he is entitled to a new trial as a result of
prosecutorial misconduct; and (3) the district court erred by imposing consecutive stayed
sentences. Because w e conclude that the evidence was sufficient to support appella nt’s
conviction and any prosecutorial misconduct was harmless beyond a reasonable d oubt, we
affirm appellant’s convictions. Because the district court erred in sentencing appellant to
consecutive sentences, however, we remand the case to the district court to impose a
concurrent sentence for the second conviction.
FACTS
In June 2019, police arrested appellant Gary Alvin Paananen in relation to an
altercation with R.M. and H.V. R espondent State of Minnesota charged Paananen with
two counts of felony domestic assault , one corresponding to each victim, in violation of
Minnesota Statutes se ction 609.2242, subdivision 4 (2018). The case proceeded to trial
and the jury found Paananen guilty of both charges. Paananen appeals. Given the
arguments raised, we summarize the pretrial ruling s, the events surrounding witness
interactions during the trial, and the evidence presented at trial.
Before Paananen’s trial, Paananen’s defense counsel requested “an order
sequestering witnesses,” under Rule 26.03, subdivision 7, of the Minnesota Rules of
Criminal Procedure. Paananen’s counsel also requested an order prohibiting the state from
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entering evidence of prior bad acts and an order “prohibiting any testimony or other
evidence regarding prior official or unofficial police contacts between [Paananen] and law
enforcement.” The district court granted Pa ananen’s requests.
At trial, the state presented testimony from R.M., H.V., and two police officers who
responded to the scene. According to this testimony, in June 2019, Paananen lived at a
home in Cottage Grove owned by his mother, S.P. Many family members also lived in the
home with Paananen and S.P., including Paananen’s wife, son, and two daughters, as well
as S.P.’s brother and R.M., Paananen’s 20-year-old nephew . In addition, R.M .’s 16-year-
old half-brother, H.V., often stayed at the house. H.V. is not a blood relative of Paananen.
According to R.M .’s testimony, H.V. had been living at the house in R.M.’s room “every
weekend” for the past several months. Specifically, when R.M. was asked “how long had
[H.V.] been living there on the weekends?” he answered: “Um, several months. I’d say at
least three.” R.M. denied that S.P. prevented him from having friends or family, such as
H.V., stay at the house, but R.M. did acknowledge that he would ask S.P. for permission
before having people over “as a courtesy.” When asked whether S.P. had told him that
H.V. did not have permission to be at the residence, R.M. stated that S.P. had not told him
that and instead, she gave her permission when he asked.
R.M. testified that he and Paananen would often argue, and on June 12, S.P. told
R.M. to clean a spill caused by R.M.’s truck. R.M. and Paananen began arguing when
R.M. flipped off Paananen. The altercation escalated. S.P. held Paananen back, but at one
point, she stepped aside and said, “F-ck it, kick his a --,” referring to R.M. Paananen then
punched R.M. When H.V. pulled Paananen off of R.M., Paananen then punched H.V. in
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the face. R.M. and Paananen continued to fight, and H.V. called 911. R.M. was recording
the events leading up to the fight, including the statements he and Paananen made.
At the end of R.M.’s testimony, there was a break in the trial. When the proceedings
resumed, the prosecutor ma de a record about an incident that happened in the hallway
during the break. The prosecutor explained that he had observed Paananen sitting next to
his son, who had been listed as a defense witness. The prosecutor also observed Paananen
walk by S.P. and talk to her. S.P. was also designated as a trial witness. The prosecutor
requested that the district court admonish Paananen. The district court reiterated its pretrial
sequestration ruling and explained to Paananen that by talking to potential witnesses, he
risked disqualifying those persons as witnesses and could also “be forfeiting his right to
testify, if he wants to testify.”
When testimony resumed, H.V. stated that he is not related to Paananen or S.P., but
shares a mother with R.M. H.V. testified that he stayed in Cottage Grove on weekends in
R.M.’s room every weekend for more than three months with S.P.’s permission. H.V.’s
testimony was consistent with R.M.’s description of the fight, although H.V. also admitted
that R.M. intimidated Paananen w hile they were arguing.
Officer Brandyn Graff also testified. He explained that he responded to the 911 call
and was first on the scene. During his testimony, Graff referenced that Paananen had prior
police contacts:
Q: And what was going on when you arr ived?
A: So just to kind of backtrack, dispatch did advise that a
male named “Gary” was involved.
Q: Okay.
5
A: So as I arrived on the scene, we’ve had other police
contacts with Gary. And as we arrived on the scene, I observed
Gary and his brother . . . in the driveway next to some vehicles.

Graff described his investigation, including the interviews he conducted with R.M. and
H.V., the photographs he took of their injuries, and the circumstances of Paananen’s arrest.
Graff then testified to the physicality of the fight , referring to Paananen as the “primary
aggressor:”
Q: You didn’t hear anything other than the defendant made
this verbal altercation physical; is that right?
A: Yes.
Q: He’s the one that took it from words to physicality;
correct?
A: During my investigation that is what me and my partner
determined, that he was our primary aggressor.
DEFENSE COUNSEL: Objection, . . . He’s making a
conclusion.
THE COURT: Well, that’s his investigation, that’s what
he concluded. And you can cross-examine him on that if you
choose to do that.

At the end of Graff’s testimony, Paananen’s counsel made a record about Graff’s reference
to previous police contacts and use of the term “primary aggressor.” After discussion with
counsel, the dist rict court directed the jury to disregard this portion of Graff’s testimony:
Officer Graff, in his testimony yesterday, opined that the
Defendant was, quote, “primary aggressor” closed quote. That
testimony should be disregarded by this jury, and your jur y
should rely only upon all of the testimony and exhibits and
evidence that was received in this case when making its
determination in your jury deliberations.

Paananen’s son, Paananen’s daughter, and S.P. testified for the defense , and
Paananen testified on his own behalf. Paananen’s son testified that he lives with S.P.,
S.P.’s brother, his parents, and his sisters. Paananen’s son overheard R.M. saying on the
6
phone that he wanted to kick in Paananen’s knees before the fight but was not present in
the house at the time of the argument. Paananen’s daughter testified that she lives with
S.P., her brother, her sister, S.P.’s brother, and her parents. Paananen’s daughter testified
that she was at the house on June 12 and was asleep but woke up when she hea rd fighting.
S.P. testified that the people who live with her at her house are Paananen, his wife,
his son, his daughters, and S.P.’s brother. S.P. testified that R.M. lived with her for about
two-and-a-half-years, but as a condition of R.M. continuing to live in the house, S.P.
required R.M. to have a job and pay rent. S.P. testified that because R.M. quit his job and
had not obtained another job yet, she asked him to leave the house. On June 12, S.P. heard
R.M. and Paananen arguing, so she tried to bre ak up the argument. She testified that she
ultimately decided to let them fight , and R.M. “lunged” at Paananen. S.P. also testified
that she did not know H.V. was in the house and that R.M. would not ask for permission
for H.V. to stay at the house. Dur ing S.P.’s cross-examination, the prosecutor questioned
S.P. about her conversation in the hallway during trial . S.P. testified that nobody told her
speaking with Paananen would violate a court order and she could not remember Paananen
saying anything to her or speaking to his son or daughter.
Finally, Paananen testified on his own behalf. He stated that R.M. was living at
S.P.’s house and that he thought R.M. planned to attack him. Paananen admitted to being
intoxicated at the time . Paananen conceded t hat their conversation escalated, but he
believed that R.M. was the aggressor and he blamed R.M. for the fight “a hundred percent.”
Paananen denied hitting H.V. Paananen also testified that H.V. never lived in the house,
and that R.M. would sneak H.V. into the house without S.P.’s permission.
7
Paananen moved for a mistrial because of S.P.’s testimony regarding the
sequestration order, and because of Graff’s statements that Paananen was the primary
aggressor. The district court denied the motion. Among the other jury instructions, the
district court instructed the jury regarding the elements of the offense, explaining that “[t]he
statutes define a family or household member as including persons related by blood, or
persons who are presently residing together, or who have resided together in the past .”
During closing argument, the prosecutor highlighted the credibility and testimony
of R.M. and H.V., emphasizing that Paananen was intoxicated and could not recall many
details of the incident. The defense argued that Paananen acted in self-defense and that the
defense witnesses were nervous because they are “not legally savvy.” During jury
deliberation, the jury asked the district court the following questions: “What is the law in
being a resident of a household?” and “What is the Minnesota Statute definition of being a
household resident?” In answering these questions, t he district court instructed the jury
that they had been given all the applicable law in the case. The jury found Paananen guilty
of both counts. The district court sentenced Paananen to two, consecutive prison sentences,
each for 12 months and one day. The district court stayed execution and placed Paananen
on probation for three years. Paananen appeals.
DECISION
I. Sufficiency of Evidence
Paananen argues that the evidence presented is insufficient to support his conviction
for assaulting H.V. because the evidence shows that H.V. was “only an occasional
overnight guest [ of R.M.]” and “only when [R.M.] asked [ S.P.] permission for [H.V.] to
8
stay over.” In response, the state contends that the evidence proves that H.V. stayed at the
home every weekend for months . Because we conclude that the evidence presented was
sufficient to establish this element of the offense, we affirm Paananen’s conviction
regarding the assault of H.V.
Minnesota law prohibits domestic assault and provides that a person commits a
felony when, within ten years of committin g two or more previous qualified domestic
violence-related offenses, that person assaults a family or household member. Minn. Stat.
§ 609.2242, subds. 1, 4 (incorporating the definition of “family or household member”
from Minnesota Statutes section 518B.01, subdivision 2 (2018)). The statutory definition
of “family or household member” includes “persons who are presently residing together or
who have re sided together in the past.” Minn. Stat. § 518B.01, subd . 2(4) (2018). To
determine whether the evidence presented was sufficient to establish this element, we view
the evidence in the “ light most favorable to the conviction” and determine whether the
evidence “was sufficient to permit the jurors to reach the verdict which they did.” State v.
Webb, 440 N.W.2d 426, 430 (Minn. 1989). This court assumes that “the jury believed the
state’s witnesses and disbelieved any evidence to the contrary.” State v. M oore, 438
N.W.2d 101, 108 (Minn. 1989). We will not reverse a conviction for insufficient evidence
“if the jury, acting with due regard for the presumption of innocence” and the need for
proof beyond a reasonable doubt, could reasonably conclude that the defendant was guilty
of the offense. Bernhardt v. State, 684 N.W.2d 465, 476- 77 (Minn. 2004).
Paananen challenges his conviction of felony domestic assault relating to H.V.,
arguing that the evidence presented showed that H.V. was an “overnight guest,” who “only
9
stayed at [S.P.’s] house as [R.M.’s] guest on an occasional weekend,” and that R.M. “would
often sneak H.V. into the house without asking [S.P.’s] permission.” Viewing the evidence
in the light most favorable to the verdict, we do not agree with Paananen’s characterization
of H.V.’s residential arrangements. 1 Both R.M. and H.V. testified that H.V. “had been
living” with R.M. at the residence “ every weekend ” for the past “several months.” R.M.
also testified that he asked permission for H.V. to s tay at the residence “as a courtesy.”
Although this testimony conflicts with testimony presented in Paananen’s defense, 2 on
appellate review, we assume that “the jury believed the state’s witnesses and disbelieved
any evidence to the contrary.” Moore, 438 N.W.2d at 108. Similarly, we assume that the
jury believed R.M. and H.V.’s testimony regarding S.P.’s permission, and we disregard
evidence to the con trary. In his brief, Paananen correctly points out that the state could
have presented additional evidence to indicate that H.V. lived at the residence, including
testimony regarding the location of H.V.’s belongings and H.V.’s sleeping arrangements .

1 Portions of Paananen’s brief invite this court to interpret the meaning of “residing.”
Paananen, however, does not explain how the applicable statute has more than one
reasonable meaning and instead, the argument presented centers on a dispute of fact based
on conflicting evidence concerning whether S.P. gave permission to H.V. and the
frequency, duration, and consistency of the time that H.V. spent at the house. Further,
Paananen does not challenge on appeal the definitions in the jury instructions or otherwise
assert legal error by the district court . Finally, “a trial court need not define every phrase
or word used in the [jury] instructions, especially when they are used in their ordinary sense
and are commonly understood.” State v. Davis , 864 N.W.2d 171, 177 n.3 (Minn. 2015);
see also, e.g., State v. Heinzer , 347 N.W.2d 535, 537 (Minn. App. 1984) (“Words of
common usage within the ordinar y understanding of a juror need not be defined by the
court.”), rev. denied (Minn. July 26, 1984).
2 For example, according to Paananen’s son and daughter , neither R.M. nor H.V. live d at
the residence. According to S.P., R.M. used to live there, but she informally evicted him.
According to Paananen, R.M. lived at the residence, but H.V. did not.
10
The possibility that additional evidence could have been offered , however, does not alter
our analysis given the standard of review applied to factual disputes stemming from
conflicting evidence. In sum, t he jury, acting with due regard for the presumption of
innocence and the need for proof beyond a reasonable doubt, could reasonably conclude
that H.V. was residing with Paananen because both R.M. and H.V. testified that H.V. had
been living at the house every weekend for months.
II. Alleged Prosecutorial Misconduct
Paananen next alleges three instances of prosecutorial misconduct : (1) the state’s
cross-examination of S.P. insinuated that Paananen violated the pretrial sequestration
order; (2) Graff stated that Paananen was the “primary aggressor;” and (3) Graff referenced
Paananen’s prior police contacts .3 Because the state established that any errors were
harmless beyond a reasonable doubt, we affirm the district court.
The right to due process of law includes the right to a fair trial. Spann v. State, 704
N.W.2d 486, 493 (Minn. 2005); State v. Ferguson, 729 N.W.2d 604, 616 (Minn. App.
2007), rev. denied (Minn. June 19, 2007). “Prosecutors have an affirmative obligation to
ensure that a defendant receives a fair trial.” State v. Jones, 753 N.W.2d 677, 686 (Minn.
2008) (quotation omitted). Consequently, prosecutorial misconduct may deny the
defendant his right to a fair trial. State v. Ramey , 721 N.W.2d 294, 300 (Minn. 2006).
Paananen’s counsel objected to each of the three alleged instances of misconduct.
For objected -to prosecutorial misconduct , appellate courts have applied one of two

3 Paananen does not assert error in the district court’s rulings on objections, pretrial
decisions, or handling of the alleged improper conduct by the state.
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standards of prejudice. See State v. Caron, 218 N.W.2d 197, 200 (Minn. 1974) (holding
that for claims of serious prosecutorial misconduct, appellate courts determine whether the
misconduct was harmless beyond a reasonable doubt , but for less serious prosecutorial
misconduct, appellate courts determine whether the misconduct likely played a substantial
part in influencing the jury to convict ). Since Caron, however, the Minnesota Supreme
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), and 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 many “cases ha ve 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 evidence was presented, whether i t was highly
persuasive, whether it was used in closing argument, 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 statement was only two sentences 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
12
not require a new trial because “the remarks were 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). We address each of the three asserted instances of misconduct in turn.
Assuming without deciding the presence of mis conduct, we conclude that the state has
established that the misconduct was harmless beyond a reasonable doubt. 4
Paananen first argues that the prosecutor improperly insinuated that he violated the
sequestration order. Even assuming that questioning S.P. about speaking with Paananen
during the trial constitutes misconduct, the questioning was harmless. There was nothing
out of the ordinary in the manner of the examination and S.P. answered that she could not
recall whether she or other wi tnesses spoke with Paananen. The state spent the majority
of its time cross-examining S.P. regarding her relationship with R.M., her conduct during
the altercation (including stepping aside and saying “F -ck it, kick his a --”), and aspects of
her testimony that conflicted with the audio recording of the altercation. In addition, the
prosecutor did not reference these isolated questions or S.P.’s answers in closing argument.
Next, Paananen argues that it was improper for Graff to testify that he believed
Paananen to be the “primary aggressor” because that statement led the jury to reject
Paananen’s theory that he acted in self -defense. We discern nothing about the manner in
which the statement was made that would draw undue attention to it, and i n closing

4 Given this determination, we need not address the viability of the two -tiered approach.
13
argument, the state did not mention this statement, use the term “ primary aggressor,” or
otherwise refer to this isolated portion of Graff’s testimony. Moreover, the district court
directed the jury to disregard this portion of Graff’s testimony, and t he defense countered
this testimony by presenting evidence that supported Paananen’s self -defense claim, such
as H.V.’s admission that R.M. was intimidating Paananen, S.P.’s testimony that R.M.
lunged at Paananen first, and R.M.’s plan to attack Paananen and target his knees.
Finally, Paananen argues that Graff improperly referred to Paananen’s prior police
contacts. Like the reference to Paananen being the aggressor, Graff’s passing reference to
knowledge about Paananen did not occur in a manner that drew any particular attention
and was not brought up again at any point or otherwise mentioned in closing argument.
Paananen also presented evidence that countered Graff’s passing comment, such as
testimony concerning Paananen’s various health and mobi lity problems and relationships
with his immediate family.
In sum, we conclude that based on the Townsend factors, and the other evidence in
the case, the state established that any errors were harmless beyond a reasonable doubt.
III. Permissive Consecutive Sentencing
Paananen argues that the district court erred by imposing a consecutive stayed
sentence for the second count of domestic assault . The state agrees that the district court
erred and recommends reversing and remanding for the imposition of concurrent sentences.
The Minnesota Sentencing Guidelines provide that consecutive sentences are
permissive (may be given without departure) “if the presumptive disposition for the current
offense(s) is commitment.” Minn. Sent. Guidelines 2.D.2.a(1) (2018); see also Minn. Sent.
14
Guidelines 2.F.205 (2018) (“Consecutive sentences are permissive for multiple current
felony convictions . . . only when the presumptive disposition is commitment.”). This court
reviews the interpretation of the sentencing guidelines under a de novo standard of review.
State v. Williams, 771 N.W.2d 514, 520 (Minn. 2009).
In this case, the presumptive sentence for count one was a 12- month stayed prison
sentence, and the presumptive sentence for count two was a 15- month stayed prison
sentence. See Minn. Sent. Guidelines 4.A (2018), 5.A (2018). Thus, the district court erred
by imposing a consecutive stayed sentence for count two. We reverse the sentence imposed
for count two and remand to the district court to impose a concurrent stayed sentence for
this offense.
Affirmed in part, reversed in part, and remanded.