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This opinion is nonprecedential except as provided by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
A21-1258

State of Minnesota,
Respondent,

vs.

Eric Lee Fry,
Appellant.

Filed September 6, 2022
Affirmed
Wheelock, Judge

Koochiching County District Court
File No. 36-CR-20-739

Keith Ellison, Attorney General, Peter Magnuson, Assistant Attorney General, St. Paul,
Minnesota; and

Jeffrey Naglosky, Koochiching County Attorney, International Falls, Minnesota (for
respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Jessica Merz Godes, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Wheelock, Presiding Judge; Reyes , Judge; and
Klaphake, Judge.
*

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
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NONPRECEDENTIAL OPINION
WHEELOCK, Judge
Appellant challenges his conviction following a jury trial for one count of
first-degree burglary of an occupied dwelling and one count of first-degree burglary
involving an assault, alleging prosecutorial misconduct based on statements the state made
during its closing argument. Appellant raises additional arguments in a pro se
supplemental brief, alleging ineffective assistance of counsel, insufficient evidence, jury
bias, and prejudice resulting from COVID-19 social-distancing protocols in the courtroom.
Because the prosecutor’s statements were permissible inferences supported by facts in the
record and thus did not constitute error, and because the pro se arguments are not
adequately briefed and are not otherwise supported by the record, we affirm.
FACTS
After a May 2021 jury trial, the district court convicted appellant Eric Lee Fry of
one count of first-degree burglary of an occupied dwelling and one count of first- degree
burglary involving an assault.
At trial, the victim, K.J., testified that he answered a knock on the door to find Fry
and an acquaintance there. He heard Fry say, “[Y]ou thought I forgot,” and at that point
K.J. attempted to close the door, but the two men forced their way into the kitchen and
began punching him. K.J.’s roommate heard the fight and entered the kitchen, where she
saw Fry and the acquaintance hitting K.J. and pulling out his hair. The roommate called
the police. Fry and the acquaintance left the home, and K.J. followed them. Police then
intercepted K.J., who told the responding officer that Fry had forced his way into the
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residence and assaulted him. K.J. also testified that he and Fry had a previous physical
altercation and that he understood Fry’s statement, “[Y]ou thought I forgot,” to be a
reference to the prior dispute.
The investigating officer appeared as a witness for the state. He testified that just
after the incident, Fry commented that the fight was about K.J. having pushed Fry’s
motorcycle over, scratching the gas tank. The officer testified that he returned to the scene
of the assault and took photographs depicting broken glass and clumps of K.J.’s hair on the
floor. The photographs were entered into evidence. The officer also took a statement from
the roommate.
In the state’s closing argument, the prosecutor claimed that “Mr. Fry had a grievance
with [K.J.]” dating back to an incident with a scratched motorcycle and that Fry “got” the
other individual and went to the residence where K.J. was staying to “extract some street
justice.” Fry did not object to the prosecutor’s statement. The jury returned a verdict of
guilty on both counts, and Fry was sentenced to a 41-month prison term. Fry appeals.
DECISION
I. The state did not commit prosecutorial misconduct based on statements in its
closing argument.

Fry requests a new trial on the basis of unobjected-to prosecutorial misconduct in
the form of remarks during closing argument. We review a prosecutor’s unobjected-to
alleged prosecutorial misconduct using the modified plain-error test. State v. Peltier,
874 N.W.2d 792, 803 (Minn. 2016). To apply the test, we consider whether there is
“(1) error, (2) that is plain, and (3) affects substantial rights.” State v. Ramey, 721 N.W.2d
4
294, 302 (Minn. 2006). Error is plain when it is “clear or obvious,” which is generally
established when the error “contravenes case law, a rule, or a standard of conduct.” Id.
(quotation omitted). If the defendant establishes the existence of plain error, “the burden
shifts to the State to establish that the plain error did not affect the defendant’s substantial
rights.” State v. Epps, 964 N.W.2d 419, 423 (Minn. 2021). Plain error affects substantial
rights if it affects the outcome of the case. State v. Griller, 583 N.W.2d 736, 741 (Minn.
1998). Even where misconduct occurs, this court will reverse only when the defendant
was denied a fair trial. State v. Porter, 526 N.W.2d 359, 365 (Minn. 1995).
We first review whether the prosecutor’s statements constitute error . “[T]he State
may present all legitimate arguments on the evidence and all proper inferences that can be
drawn from that evidence in its closing argument.” State v. Munt, 831 N.W.2d 569, 587
(Minn. 2013) (quotation omitted). However, a prosecutor may not speculate without a
factual basis, and a prosecutor who intentionally misstates the evidence or misleads the
jury as to the inferences it may draw engages in misconduct. Peltier, 874 N.W.2d at
804-05. Inferences not adequately supported by the facts in evidence are improper. Id. at
805. When reviewing a closing argument for prosecutorial misconduct, “we look to the
closing argument as a whole, rather than to selected phrases and remarks.” State v.
McCray, 753 N.W.2d 746, 751 (Minn. 2008) (quotation omitted).
Fry specifically argues that the prosecutor’s assertions in the state’s closing
argument that Fry enlisted a friend and went to the house with the intent to get even with
K.J. for the prior altercation were not supported by facts in the record and were therefore
improper inferences.
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The state made the following statement in its closing argument:
Mr. Fry had a grievance with [K.J]. I believe [the officer]
testified that Mr. Fry made the comment after he was arrested
that this dates back to an incident involving a tipped over
motorcycle and a scuffed up or scratched gas tank. There’s
ways to deal with that; the right way and the wrong way. Mr.
Fry decided to deal with it the wrong way. When he had the
first altercation with [K.J.], and then when he got [the other
individual] and a second time went and had an altercation with
[K.J.]. Knew where he was, went to [the roommate’s] home,
without anybodies [sic] permission forced his way in, and
assaulted [K.J.]. Gonna extract some street justice. There are
two ways to do things; the right way and the wrong way. And
that is the wrong way.
(Emphases added.) The state further referred to Fry’s entering the house without consent
and with the intent to assault K.J., stating:
When [K.J.] opens the door and sees [the other individual] and
Mr. Fry standing there, and hears Mr. Fry say, “I bet you
thought I forgot” he knew what was coming. He tried to close
the door. He was not giving consent. He was denying consent
to enter [the] home. They didn’t accept that denial. They
forced their way in. And what happened? The next thing they
were there to do, commit an assault. He had a grudge, and he
was gonna get even one way or the other. . . . He’s got a lot of
options. The legal options do not include getting his buddy,
going to [the] house, forcing their way in and beating up the
person on the inside. So, when they formulated that intent, you
know what, you and me, let’s go, we’re gonna go there and
we’re gonna get him. They went with the intent to commit a
crime.

(Emphases added.)

Fry argues that the prosecutor’s statements about his “plan and purpose” in going to
K.J.’s house with another individual are not adequately supported by facts in evidence. He
acknowledges the testimony of the investigating officer, in which the officer recalled that
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Fry made a statement to him that the fight was a result of K.J. scratching Fry’s motorcycle
gas tank. But Fry characterizes this testimony as the “single piece of evidence” supporting
the inference that he entered the house with the intent to retaliate against K.J. Fry claims
that because this “single piece” of evidence of his intent to commit the assault was a hearsay
statement, there was “no basis” in the record to infer that Fry’s actions were motivated by
a grudge and that he entered the house to “get even” with K.J.
Fry fails to account for K.J.’s testimony (1) that K.J. and Fry had previously fought
and (2) that when Fry said, “[Y]ou thought I forgot,” K.J. understood him to be referring
to the previous altercation, which K.J. stated “didn’t end so good” for Fry. While it is true
that K.J. did not testify that the earlier fight was about a motorcycle specifically, he testified
that there was an earlier fight about something that did not have anything to do with K.J.
He also testified that when he heard Fry say, “[Y]ou thought I forgot,” he “tried to hurry
up and shut the door,” but the men forced their way through the door and into the house.
We therefore conclude that the prosecutor’s inference that Fry had a grievance with K.J.
and went to the house with the intent to assault K.J. was reasonable and adequately
supported by evidence in the record.
Fry contends that here, as in Peltier, the prosecutor’s inference is a “psychological
hypothesis” not supported by evidence. 874 N.W.2d at 805. In Peltier, however, the
impermissible conjectures implying the defendant’s commonality with other offenders had
no basis in evidence. Id. Here, the prosecutor’s argument inferred Fry’s intent from
circumstances established by the record, as we previously concluded.
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We note, and Fry points out, that the prosecutor’s recounting of the events leading
up to the assault includes an assertion that Fry enlisted an accomplice, stating that Fry “got”
the other individual and “went and had an altercation with [K.J.].” We discern no factual
basis in the record supporting the assertion that Fry sought out the other person or
explaining how the two arrived at the residence together at the time of the assault.
Nonetheless, we concl ude that this statement about the accomplice is irrelevant to the
reasonableness of the inference of Fry’s intent for going to K.J.’s residence given the other
facts in the record.
Finally, Fry argues that because there was no evidence of when the alleged
motorcycle incident occurred, there is no factual basis to support a reasonable inference
that the assault was motivated by a desire to “extract some street justice” for damage to the
motorcycle. Other testimony, however, clearly suggests that some conflict had occurred
that predated the assault. Thus, the prosecutor’s inference that Fry’s motivation for the
assault was related to an earlier conflict was reasonable and supported by evidence in the
record. See State v. Smith, 876 N.W.2d 310, 335 (Minn. 2016) (prosecutors may argue all
reasonable inferences from evidence in the record).
We conclude that the prosecutor’s statements during the state’s closing argument
regarding Fry’s intent to assault K.J. because of a grudge from a previous encounter are
based on an inference supported by evidence in the record and thus do not constitute error.
Because the first prong of the modified plain- error test is not satisfied, we need not reach
the questions of whether an er ror was plain or whether Fry’s substantial rights were
affected. See State v. Lilienthal, 88 9 N.W.2d 780, 785 (Minn. 2017) (stating that if the
8
court finds that any one of the plain-error prongs is not satisfied, it need not address the
others). Fry’s allegation of prosecutorial misconduct therefore fails.
II. Fry’s claims of ineffective assistance of counsel, insufficient evidence,
improperly suppressed evidence, jury bias, and prejudice resulting from
COVID-19 social-distancing protocols in the courtroom are not supported by
the record.

We discern five distinct claims that Fry makes in his pro se supplemental brief, none
of which are supported by legal arguments or citations to legal authority. We do not
“consider pro se claims on appeal that are unsupported by either arguments or citations to
legal authority.” State v. Bartylla, 755 N.W.2d 8, 22 (Minn. 2008). Further, “[a]n
assignment of error based on mere assertion and not supported by any argument or
authorities in appellant’s brief is waived and will not be considered on appeal unless
prejudicial error is obvious on mere inspection.” State v. Yang, 774 N.W.2d 539, 552
(Minn. 2009) (quotation omitted). Because Fry’s claims are based on mere assertion, we
need not consider them; however, having carefully reviewed Fry’s claims and the record,
we conclude that Fry’s claims still fail.
First, Fry alleges his counsel was ineffective. We evaluate claims of ineffective
assistance of counsel using a two-pronged test that requires finding (1) that the attorney’s
performance fell below an objective standard of reasonableness and (2) that a reasonable
probability exists that the outcome would have been different but for counsel’s errors.
Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Mosley, 895 N.W.2d 585, 591
(Minn. 2017). “Counsel does not act unreasonably by not asserting claims that counsel
could have legitimately concluded would not prevail.” Wright v. State, 765 N.W.2d 85, 91
9
(Minn. 2009). Our review of a trial counsel’s performance does not extend to reviewing
trial strategy, which includes the examination of witnesses and the selection of evidence
presented to the jury. White v. State, 711 N.W.2d 106, 111 (Minn. 2006).
Fry specifically claims that his counsel should have entered into evidence K.J.’s
subsequent criminal conviction, that his counsel should have objected to the investigating
officer’s hearsay statement that Fry told him the previous fight was over a motorcycle, and
that his counsel should have questioned another witness further about elements of her
testimony. Fry’s claims do not demonstrate that his counsel’s performance fell below an
objectively reasonable standard. Fry’s counsel acted reasonably in determining whether
evidence of K.J.’s subsequent conviction would be permitted and its value to the
proceeding, as well as the importance of the investigating officer’s claim that Fry told him
the dispute arose from an issue with a motorcycle given other evidence in the record that
the two men had a prior dispute. The record shows that Fry’s counsel’s cross-examination
of the witness in question was thorough. Because Fry’s claims about his counsel’s
performance fall within trial strategy or otherwise fail to satisfy one or both prongs of
Strickland, his apparent argument that his counsel was ineffective fails.
Second, Fry asserts a lack of evidence against him, citing insufficient statements
from the victim and assailants; no DNA evidence; and the lack of photographs of the
house’s exterior, the door jamb, or a damaged television. When reviewing the sufficiency
of evidence, we carefully “examine the record to determine whether the facts and legitimate
inferences drawn from them would permit the jury to reasonably conclude that the
defendant was guilty beyond a reasonable doubt.” State v. Griffin, 887 N.W.2d 257, 263
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(Minn. 2016) (quotation omitted). “The evidence must be viewed in the light most
favorable to the verdict, and it must be assumed that the fact-finder disbelieved any
evidence that conflicted with the verdict.” Id. 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) (quotation omitted).
To convict Fry of first -degree burglary of an occupied dwelling, the state had to
prove beyond a reasonable doubt that Fry entered an occupied dwelling without consent
and with intent to commit a crime—in this instance, the crime of assault. See Minn. Stat.
§ 609.582, subd. 1(a) (2020). To convict Fry of first-degree burglary involving an assault,
the state had to prove beyond a reasonable doubt that Fry entered a building without
consent and assaulted a person inside the building. See id., subd. 1(c) (2020).
Here, the state presented photographic evidence of the house where the assault
occurred, showing a rug crumpled and pushed away from its place by the back door, clumps
of K.J.’s hair on the floor, and photographs of bruising to K.J.’s face. The jury heard
testimony from the investigating officer, a witness to the assault, and K.J. Viewed in a
light most favorable to the verdict, the facts and legitimate inferences from the evidence
and testimony sufficiently permit the jury to conclude that the elements of first-degree
burglary of an occupied dwelling and first- degree burglary involving an assault were
proved beyond a reasonable doubt. Therefore, Fry’s claim that the evidence was
insufficient fails.
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Third, Fry asserts that the district court improperly suppressed testimonial evidence
that K.J. possessed two knives when he followed the assailants away from the scene of the
assault, arguing that the excluded evidence is relevant to K.J.’s aggression and credibility
as a witness. “We largely defer to the trial court’s exercise of discretion in evidentiary
matters and will not lightly overturn a trial court’s evidentiary ruling.” State v. Robertson,
884 N.W.2d 864, 872 (Minn. 2016) (quotation omitted). “A defendant claiming error in
the district court’s reception of evidence has the burden of showing both the error and the
prejudice resulting from the error.” Holt v. State, 772 N.W.2d 470, 483 (Minn. 2009)
(quotation omitted).
While K.J.’s credibility was no doubt important to the state’s case, the defense
introduced other evidence of K.J.’s aggressive behavior toward his assailants following the
assault. Fry does not show how the court erred by excluding the specific testimony
regarding K.J.’s possession of knives, nor how its exclusion prejudiced Fry. Therefore, the
district court did not err in excluding the testimony in question.
Fourth, Fry alleges that the jury was biased based on the profile of the jurors selected
and the fact that a number of jurors had recently served on a previous jury for a different
first-degree-burglary trial. But Fry does not present any legal argument or point to any
facts demonstrating that actual prejudice resulted from the district court’s inclusion of the
selected jurors in the jury for his trial. A review of the record from voir dire shows that the
district court heard from the jurors in question regarding whether either their employment
or their relationship with the victim would impact their ability to be impartial and then
thoroughly considered whether to remove them for cause. Any jurors who had previously
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served on a jury for a first-degree-burglary trial were questioned about the impact of their
prior service on their ability to be impartial in a case with similar issues. The district court
determined that the jurors at issue were able to be impartial. Thus, the district court did not
err by seating the jurors selected to hear Fry’s case.
Finally, Fry argues that COVID -19 social -distancing protocols used in the
courtroom had “a huge effect on the jury” because the jurors were seated on uncomfortable
benches and because the distance between the jurors and the witn ess stand meant that the
jury could not see the witnesses’ faces or Fry’s face at counsel table. Fry , however, does
not point to any facts in the record indicating that the jurors were physically uncomfortable
or that they were unable to see the faces of witnesses. To the contrary, at the outset of trial,
the district court confirmed with the jurors that they were able to see and hear witnesses
and exhibits, and it instructed them to inform the court if at any time they were unable to
see or hear a portion of the proceeding. Fry points to no particular instance where the jury’s
ability to view testimony or evidence was compromised, nor does Fry demonstrate that any
prejudice resulted. Fry’s arguments in his pro se supplemental brief therefore fail to
persuade us that a new trial is warranted.
Affirmed.