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This opinion is nonprecedential except as provided by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
A21-1370

State of Minnesota,
Respondent,

vs.

Kymone Leandre Scott,
Appellant.

Filed October 3, 2022
Affirmed
Bryan, Judge

Hennepin County District Court
File No. 27-CR-20-15685

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

Michael O. Freeman, Hennepin County Attorney, Minneapolis, Minnesota (for
respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, John Donovan, As sistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Bjorkman, Presiding Judge; Slieter, Judge; and Bryan,
Judge.
NONPRECEDENTIAL OPINION
BRYAN, Judge
In this direct appeal from conviction of possession of a firearm by a prohibited
person, appellant makes the following two arguments: (1) the district court plainly erred in
instructing the jury on the law concerning possession; and (2) the prosecutor committed
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misconduct in closing argument. Because we conclude that the district court did not err in
its jury instructions and that the prosecutor’s alleged misconduct did not affect appellant’s
substantial rights, we affirm the district court.
FACTS
On July 15, 2020, respondent State of Minnesota charged appellant Kymone
Leandre Scott with possession of a firearm by a prohibited person, in violation of
Minnesota Statutes section 624.713, subdivision 1(2) (2018). Given the issues on appeal,
we summarize the evidence presented at trial, the relevant portions of the jury instructions,
and the attorneys’ closing arguments.
At trial, the state presented the testimony of two eyewitnesses , six Minneapolis
Police Department officers, two Minneapolis crime lab unit employees, and two employees
of the Bureau of Criminal Apprehension. One witness, K.D., testified that she was in her
home when she received a voice message from her son, T.D., who can see K.D.’s backyard
from his house. T.D. stated that K.D. should not go into her backyard because there was a
man with a gun. K.D. testified that she looked out her window and saw a man holding a
gun, crouching in her backyard . K.D. then called 911 and officers arrived within a few
minutes after her call. T.D. testified that he heard gunshots nearby and saw a ma n run into
his mother’s backyard. T.D. stated that the man was wearing a black hat, white t-shirt, and
black shorts, which was consistent with the description given by K.D. during the 911 call .
T.D. did not see the man hold ing a gun but saw a heavy object in the pocket of his shorts
that he believed was a gun. T.D. further testified that he sent his mother a voice message
through his smart home device to tell her that there was a man with a gun in her backyard.
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Multiple Minneapolis police officers testified that they were on patrol, heard
multiple gunshots, and were given the information provided by K.D. in the 911 call. In the
area near K.D.’s backyard, responding officers found only one person. This person was
shirtless, wearing black shorts, and later identified as Scott. According to a video recording
from an officer’s body camera, Scott told officers that he was not alone but was with
another man. Scott also stated that he was “just running” nearby and that he “got nothing”
on his person. Under a bush cl ose to the location where officers encountered Scott, one
officer recovered a firearm wrapped in a white t -shirt. Officers also recovered a black hat
nearby. I nvestigators tested several items for DNA, including the sweatband of the hat;
the cuff, col lar, and a blood stain on the t-shirt; and the firearm. According to trial
testimony, t he major male DNA profile s from the samples collected from th e hat, shirt
collar, and blood stain on the shirt all matched Scott’s DNA. The DNA profiles from the
hat and t-shirt would not be expected to occur more than once among unrelated individuals
in the world’s population. The partial major male DNA profile fr om the firearm also
matched Scott’s DNA. The DNA profile from the firearm would not be expected to match
more than one out of every 58,000 people.
After the defense rested, the district court instructed the jury as follows on the law
of possession:
Under Minnesota law, whoever knowingly possesses a firearm
or ammunition and is a person prohibited from possessing a
firearm or ammunition is guilty of a crime.

Possession of a firearm or ammunition by a prohibited
person, elements: The elements of possession of a firearm or
ammunition are: First, the defendant knowingly possessed a
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firearm or ammunition or consciously exercised dominion and
control over it.

. . . .

The law recognizes two kinds of possession: actual
possession and constructive possession. A person is in actual
possession of a firearm or ammunition if he has it on his person
or is exercising direct physical control over the firearm or
ammunition at a given time. A person is in constructive
possession of a firearm or ammunition if the firearm or
ammunition was in a place under his exclusive control to which
other people did not normally have access, or if found in a
place to which others had access, the person knowingly
exercised dominion and control over the firearm or
ammunition. You may find that the element of possession, as
that term is used in these instructions, is present if you find
beyond a reasonable doubt that the defendant had actual or
constructive possession.

During Scott’s closing argument, defense counsel a nticipated an argument the state
might make on rebuttal regarding officers not conducting a n in -person or “show -up”
identification of Scott . Defense counsel stated: “[The state’s] going to say: Well, that’s
really a red herring. That doesn’t mean anything. That doesn’t mean anything. They don’t
need to do that . . . . I mean, some steps that even you as members of the jury might think
is something that would be important to do, even if you’re not police officers.”
In its rebuttal argument, the state made th e following statement:
I want to address some things that the defendant does
say when the officers are arriving on scene and taking him into
custody. You can hear him say in the body camera: I was just
running. I was just with the person. To which the officers
reply: Well, where did he go? That’s because the defendant
panics when the officers arrive and points the other way: I was
just with someone. He’s running somewhere else. I’m just
running. I didn’t have anything to do with anything. But,
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members of the jury, he’s lying. He’s lying because he’s about
to get caught.

. . . .

His statement that: There was somebody else there, and
I was just running, and they ran away. [Defense counsel] is
right. It’s the defense [’s] feeble attempt at creating a red
herring. But the reality is no one else was there .

Scott’s counsel did not object during the state’s rebuttal argument. The jury found Scott
guilty. The district court sentenced Scott to 60 months in prison. Scott appeals.
DECISION
Scott challenges the jury instructions regarding constructive possession and the
prosecutor’s statement in its rebuttal argument. We conclude that the district court did not
commit plain error when it instructed the jury and that Scott’s substantial rights were not
affected by any error committed by the prosecutor in rebuttal argument. 1
I. Jury Instructions
Scott argues that his conviction for unlawful possession of a firearm must be
reversed because the district court plainly erred in its jury instructions. Because the district
court’s instructions did not confuse, mislead, or materially misstate the law , we conclude
that the district court did not plainly err when it instructed the jury on the law of possession.

1 Scott also raises a third argument: that the cumulative effect of the two asserted errors
denied him a fair trial. See State v. Fraga, 898 N.W.2d 263, 278 (Minn. 2017) (noting that
a defendant may be entitled to a new trial “in rare cases where the error s, when taken
cumulatively, have the effect of denying the [defendant] a fair trial” (quotation omitted) ).
Because we conclude that the district court did not plainly err and that any error by the
prosecutor did not affect the verdict , we necessarily conclude that the cumulative effects
of these alleged errors did not deny Scott a fair trial.
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“[J]ury instructions must define the crime charged and explain the elements of that
crime to the jury,” and we typically afford the district court “broad discretion and
considerable latitude in choosing the language of jury instructions.” State v. Milton, 821
N.W.2d 789, 805 (Minn. 2012) (quotations omitted). A district court abuses this discretion
if it provides instructions that “confuse, mislead, or materially misstate the law,” State v.
Taylor, 869 N.W.2d 1, 14- 15 (Minn. 2015) (quotation omitted), or if they omit an element
of the charged offense, State v. Stay , 935 N.W.2d 428, 430 (Minn. 2019). Under this
analysis, we typicall y determine whether the error was harmless beyond a reasonable
doubt. State v. Pollard, 900 N.W.2d 175, 181 (Minn. App. 2017). In this case, however,
Scott did not object to the jury instructions at trial. Absent a n objection, we review the
district court’s jury instructions for plain error. Milton, 821 N.W.2d at 805. Under a plain-
error analysis, we consider whether the jury instructions contained “an (1) error (2) that
was plain and (3) that affected the defendant’s substantial rights.” Id. “If these three prongs
. . . are met, we then decide whether we must address the error to ensure fairness and the
integrity of the judicial proceedings.” Id . (quotation omitted).
Scott’s argument focuses on the first portion of the district court’s instruction, which
explained that the state must prove that “the defendant knowingly possessed a firearm or
ammunition or consciously exercised dominion and control over it.” We are not convinced
that the instructions constitute plain error for two reasons. First, this court determined that
very similar jury instructions did not misstate the law or constitute plain error in State v.
Peralta, No. A17-0027, 2017 WL 6567652, at *7 (Minn. App. 2017), rev. denied (Minn.
Mar. 20, 2018). Just as in this case, the district court in Peralta explained that the first
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element requires the state to prove that the defendant “knowingly possessed ammunition
or consciously exercised dominion and control over it.” Id. While we acknowledged that
this portion of the instruction was “ not precise,” we determined that it was not “materially
wrong” because both knowingly possessing ammunition and cons ciously exercising
dominion and control over ammunition can establish guilt. Id. (citing State v. Harris, 895
N.W.2d 592, 601 (Minn. 2017)) . Although Peralta was nonprecedential, we believe its
analysis is persuasive, see Minn. R. Civ. App. P. 136.01, subd. 1(c), and we reach the same
conclusion here. See Harris, 895 N.W.2d at 601 (stating that to establish guilt, “the State
must show that . . . the defendant was consciously or knowingly exercising dominion and
control over [the firearm].”). This portion of the instruction is a correct statement of law .
Second, any misunderstanding that the first portion of the instruction might have
created was resolved by the remainder of the instruction. The district court explained that
Minnesota law “recognizes two kinds of possession” and defined both types, correctly
stating the mens rea for constructive possession. Thus , we conclude that the district court
did not plainly err by providing instructions that “confuse, mislead, or materially misstate
the law.” Taylor, 869 N.W.2d at 14- 15.
II. Prosecutorial Misconduct
Scott argues that the prosecutor committed misconduct during closing argument that
entitles him to a new trial. Because we conclude that any such misconduct did not affect
Scott’s substantial rights, we affirm the district court.
Scott did not object at trial to the prosecutor’s argument , so we apply a modified
plain-error test to review his claims of misconduct. State v. Peltier, 874 N.W.2d 792, 803
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(Minn. 2016); see also State v. Ramey, 721 N.W.2d 294, 302 (Minn. 2006) (extending the
plain-error doctrine to unobjected -to claims of prosecutorial misconduct). “Under this
approach, the defendant must establish the existence of an error that was plain, and then
the burden shifts to the State to establish that the plain err or did not affect the defendant’s
substantial rights.” State v. Epps, 964 N.W.2d 419, 423 (Minn. 2021) (citing Ramey, 721
N.W.2d at 302). An error affects the defendant’s substantial rights “if there is a reasonable
likelihood that the error substantially affected the verdict.” State v. Strommen, 648 N.W.2d
681, 688 (Minn. 2002); see also State v. Matthews, 800 N.W.2d 629, 634 (Minn. 2011)
(“The court’s analysis under the third prong of the plain error test is the equivalent of a
harmless error analysis.”). If any element of the plain -error test is not satisfied, we need
not consider the others. State v. Webster , 894 N.W.2d 782, 786 (Minn. 2017).
Scott argues that the prosecutor committed misconduct during the state’s closing
argument by making two improper statements. Scott challenges the portion of the state’s
rebuttal closing argument during which the prosecutor told the jury that the defendant was
lying to police officers who initially encountered him at the scene of the arrest : “You can
hear him say in the body camera: I was just running. I was just with the person . . . . I’m
just running. I didn’t have anything to do with anything. But, members of the jury, he’s
lying. He’s lying because he’s about to get caught.” Scott also asserts misconduct in the
portion of the rebuttal argument during which the prosecutor addressed defense counsel’s
criticism that the officers did not conduct a show-up identification.2 The prosecutor stated:

2 We observe that defense counsel prompted these comments by anticipating that the state
would label this a “red herring” on rebuttal: “[The state’s] going to say: Well, that’s really
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“[Defense co unsel] is right. It’s the defense [’s] feeble attempt at creating a red herring.
But the reality is no one else was there.”
Scott is correct that, in certain circumstances, a prosecutor commits misconduct by
stating that a witness is lying, see State v. M ayhorn, 720 N.W.2d 776, 791 (Minn. 2006)
(concluding that the prosecutor committed misconduct by making a personal assessment
of a witness’s credibility),3 or by disparaging the defense, Peltier, 874 N.W.2d at 804; State
v. Pearson, 775 N.W.2d 155, 164 (M inn. 2009) (noting that prosecutors “may not belittle
a line of defense”). We need not determine whether the prosecutor’s statements constitute
misconduct, however, because the state has established that Scott’s substantial rights were
not affected by any error.
The evidence presented against Scott included the testimony of T.D. and K.D., the
video recording from multiple responding officer s’ body cameras, and DNA evidence.

a red herring. That doesn’t mean anything. That doesn’t mean anything.” These comments
place the prosecutor’s rebuttal arguments in a different context than those in State v.
Moseng, 379 N.W.2d 154, 156 (Minn. App. 1985) (rejecting appellant’s argument of
prosecutorial misconduct when prosecutor used the phrase “red herring” to describe
“aspects of the evidence that the state need not prove at all but [to which] the defense [is
expected to] attach unwarranted significance”). Because we conclude that the reference to
a “red herring” in this case did not affect Scott’s substantial rights, we need not determine
whether Moseng permits the state’s use of the phrase “feeble attempt at creating a red
herring” or whether defense counsel’s invitation and introduction of the term “red herring”
justifies the state’s subsequent use of the term.
3 We also note that a prosecutor does not commit misconduct by referring to a defendant ’s
statements as lies when there is “a clear basis in the record” for that argument. See State
v. Washington, 725 N.W.2d 125, 134 (Minn. App. 2006) (holding that the prosecutor di d
not commit misconduct by calling the defendant a liar in closing argument when referring
to defendant’s prior conviction for providing false information to a police officer) , rev.
denied (Minn. Mar. 20, 2007). Given our determination that Scott’s substantial rights were
not affected by this statement , we need not determine whether there was a clear basis in
the record for the prosecutor’s statement.
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Specifically, T.D. testified that he heard gunshots very close by and saw a man wearing a
black hat, white t -shirt, and black shorts run into K.D.’s backyard. In the 911 call, K.D.
described looking into her backyard and seeing a man holding a gun and wearing a black
hat, white shirt, and black shorts or pants . Officers arrived within minutes of K.D.’s 911
call and encountered only one person near the backyard, Scott. He was not wearing a shirt
when officers encountered him . Officers retrieved a firearm wrapped in a white t -shirt
from under a bush nearby. They also recovered a black hat in the area. The DNA samples
collected from the hat, shirt, and firearm all matched Scott’s DNA. The DNA profiles from
the hat and shirt would not be expected to occur more than once among unrelated
individuals in the world’s population. Similarly, the DNA profile from the firearm would
not match more than one person out of every 58,000 people. Given the testimony of K.D.
and T.D., the proximity of Scott to the firearm , the fact that he was alone and not wearing
a shirt, the fact that the firearm was wrapped in the t-shirt, and the DNA evidence from the
shirt, hat, and firearm , we conclude that there is no reasonable likelihood that the jury’s
verdict would have been diff erent had the prosecutor not made the challenged statements
in the rebuttal closing argument. Any misconduct, therefore, did not affect Scott’s
substantial rights.
Affirmed.