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This opinion is nonprecedential except as provided by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
A22-0761

State of Minnesota,
Respondent,

vs.

Antonio Albert Schally,
Appellant.

Filed March 27, 2023
Affirmed
Cleary, Judge*

Washington County District Court
File No. 82-CR-21-3359

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

Kevin Magnuson, Washington County Attorney, Kayla K. Wengronowitz, Assistant
County Attorney, Stillwater, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Michael McLaughlin, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Smith, Tracy M., Presiding Judge; Larkin, Judge; and
Cleary, 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NONPRECEDENTIAL OPINION
CLEARY, Judge
Appellant Antonio Albert Schally challenges his conviction for fleeing a police
officer in a motor vehicle, arguing that (1) the evidence was insufficient to prove that he
was the driver, (2) the district court violated his right against self-incrimination by ordering
him to reveal a tattoo, and (3) the prosecutor committed misconduct by shifting the burden
of proof. We affirm.
FACTS
On September 26, 2021, at approximately 9:30 a.m., a lieutenant on patrol observed
a maroon Chevy Tahoe pass him at a high speed. The lieutenant pursued the Tahoe for a
speed violation. The lieutenant activated his emergency lights, but the Tahoe sped up. The
lieutenant followed the Tahoe as it took an exit ramp and continued to a residential area.
The lieutenant discontinued active pursuit for safety reasons but followed the Tahoe at a
normal speed.
The lieutenant lost sight of the Tahoe for a short time before he observed it make a
U-turn and approach his squad car “head-on.” As the Tahoe passed, the lieutenant
observed the driver, “a white male” in a dark baseball hat with a “large tattoo or blob” on
his neck. The lieutenant noted the license-plate number. The lieutenant learned that
appellant was the vehicle’s registered owner and had two arrest warrants.
Officers were dispatched to locate the Tahoe. Around 11:00 a.m., an officer located
the Tahoe at an apartment complex. The officer saw an individual quickly enter a building.
The officer went to a rear entrance of the building where appellant exited and was arrested.
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A trooper heard of the pursuit over his radio and traveled to where the Tahoe was
found. The lieutenant had told the trooper that the driver had “a very distinctive neck
tattoo.” The trooper took photographs of appellant, one of which focused on appellant’s
neck tattoo. The trooper searched appellant and found keys to the Tahoe in appellant’s
pocket.
The trooper transported appellant to jail where he turned custody of appellant over
to the lieutenant. The lieutenant identified appellant as the driver. The state charged
appellant with fleeing a peace officer in a motor vehicle, in violation of Minn. Stat.
§ 609.487, subd. 3 (2020).
At appellant’s jury trial, the lieutenant testified that when he discontinued active
pursuit, he became “hyper-focused” on getting a visual of the driver for future
investigation. The lieutenant testified that he got “a good look at the driver” and had “[n]o
doubt at all” that appellant was the driver.
At trial, the district court admitted the photographs the trooper took of appellant at
the time of his arrest. The prosecutor asked appellant to “pull down his turtleneck” to
reveal any tattoo he might have. Appellant complied. The prosecutor asked the lieutenant:
“Is that the tattoo that you saw on the driver?” The lieutenant replied: “I just know that it
was a big tattoo on his neck. And I saw the defendant later; yes, same one.” The prosecutor
asked: “Regardless of whether you can specifically say that’s the tattoo, are you able to say
without a doubt that that is the driver?” The lieutenant testified: “A hundred percent.”
The jury found appellant guilt y as charged. The district court sentenced appellant
to 22 months in prison. This appeal follows.
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DECISION
I. The direct evidence is sufficient to sustain appellant’s conviction.
When evaluating the sufficiency of the evidence, this court views the evidence in
the light most favorable to the conviction. State v. Webb, 440 N.W.2d 426, 430 (Minn.
1989). We “carefully examine the record to determine whether the facts and the legitimate
inferences drawn from them would permit the [jury] to reasonably conclude that the
defendant was guilty beyond a reasonable doubt.” State v. Waiters, 929 N.W.2d 895, 900
(Minn. 2019) (quotation omitted).
Appellant argues that the evidence was insuff icient to establish his identity as the
driver. While appellant claims that the state relied on direct and circumstantial evidence
to prove that he was the driver, we conclude that the state sufficiently proved that appellant
was the driver with direct evidence alone. See State v. Horst, 880 N.W.2d 24, 39 (Minn.
2016) (stating that “when a disputed element is sufficiently proven by direct evidence alone
. . . it is the traditional standard, rather than the circumstantial-evidence standard, that
governs”). “Direct evidence” is “based on personal knowledge or observation and that, if
true, proves a fact without inference or presumption.” Bernhardt v. State, 684 N.W.2d 465,
477 n.11 (Minn. 2004) (quotation omitted).
Here, the lieutenant testified about his observations. He testified that after the Tahoe
completed a U-turn and approached him head-on, he was “hyper-focused” on getting a
visual of the driver . As the Tahoe passed, the lieutenant got a “good look at the driver.”
When the lieutenant saw appellant at the jail, appellant was wearing the same hat that the
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driver was wearing and had the same neck tattoo. The lieutenant testified that he had “[n]o
doubt at all” that appellant was the driver.
The “assessment of witness credibility is a jury function.” State v. Reese, 692
N.W.2d 736, 741 (Minn. 2005). And “a conviction can rest upon the testimony of a single
credible witness.” State v. Bliss , 457 N.W.2d 385, 390 (Minn. 1990). The lieutenant
provided direct evidence that appellant was the driver. The jury found the lieutenant to be
credible. This record permits the jury to reasonably conclude that appellant was the driver.
II. The district court did not violate appellant’s right against self-incrimination.
We review constitutional questions de novo. See State v. Borg, 806 N.W.2d 535,
541 (Minn. 2011) (reviewing de novo whether Fifth Amendment privilege prohibits
eliciting certain testimony).
The Fifth Amendment guarantees that “[n]o person . . . shall be compelled in any
criminal case to be a witness against himself.” U.S. Const. amend. V. “The privilege
against self-incrimination bars the state from (1) compelling a defendant (2) to make a
testimonial communication . . . (3) that is incriminating.” State v. Diamond, 905 N.W.2d
870, 873 (Minn. 2018). But making a defendant “the source of ‘real or physical evidence’
does not violate [the privilege].” Schmerber v. California, 384 U.S. 757, 764 (1966); see
Diamond, 905 N.W.2d at 875-76 (concluding that compelling defendant to provide
fingerprint was not testimonial communication because it is akin to gathering evidence of
defendant’s physical characteristics). The disputed issue here is whether appellant’s tattoo
is testimonial. We conclude that it is not.
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Appellant argues that his tattoo is testimonial because it could be seen as conveying
a belief he held; specifically, his “B.$.” tattoo communicated that he distrusted authority
and was unlikely to respect an officer’s demand to pull over. But as the state asserts, there
was no testimony at trial regarding the belief that the tattoo represents. Rather, the tattoo
was merely a physical feature used to identify appellant as the driver.
The lieutenant testified that he saw a “big tattoo on [the driver’s] neck” that was a
“dollar sign symbol and then some other markings.” The state requested that appellant
“pull down the collar of his turtleneck to reveal” his tattoo because the lieutenant got a
good look at the driver’s “very distinctive” neck tattoo. Appellant’s neck tattoo was offered
as a physical feature to prove that he had a distinctive tattoo on his neck in the same location
as the driver.
Moreover, appellant cannot show any prejudice because the lieutenant testified that
he was “[a] hundred percent” sure that appellant was the driver “[r] egardless of whether
[he could] specifically say that’s the [same] tattoo.” Even if the district court had not
compelled appellant to show his tattoo, the state was still able to provide evidence showing
that appellant was the driver. The district court did not violate appellant’s right against
self-incrimination.
III. The prosecutor did not shift the burden of proof.
Finally, appellant argues that the prosecutor committed misconduct by shifting the
burden of proof. Appellant did not object at trial. We review this alleged prosecutorial
misconduct under a modified plain-error test. See State v. Carridine, 812 N.W.2d 130, 146
(Minn. 2012) (citing State v. Ramey, 721 N.W.2d 294, 302 (Minn. 2006)).
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Under the modified plain-error test, appellant must show error that was plain. See
id. An error is plain if it “contravenes case law, a rule, or a standard of conduct.” Ramey,
721 N.W.2d at 302. If appellant shows plain error, the “burden then shifts to the [s]tate to
demonstrate that the error did not affect [appellant]’s substantial rights.” Carridine, 812
N.W.2d at 146. Plain error affects substantial rights “if the error was prejudicial and
affected the outcome of the case.” State v. Griller, 583 N.W.2d 736, 741 (Minn. 1998). If
prejudicial plain error exists, we will assess “whether the error sho uld be addressed to
ensure fairness and the integrity of the judicial proceedings.” Ramey, 721 N.W.2d at 302.
If the prosecutor shifted the burden of proof, it is “highly improper and constitutes
prosecutorial misconduct.” State v. McDaniel, 777 N.W.2d 739, 750 (Minn. 2010)
(quotation omitted). The prosecutor improperly shifts the burden of proof by implying that
a defendant has the burden of proving his innocence. Id. To determine whether the
prosecutor shifted the burden of proof, we look at the prosecutor’s closing argument “as a
whole, rather than just selective phrases or remarks that may be taken out of context or
given undue prominence.” Carridine, 812 N.W.2d at 148 (quotation omitted).
Here, the prosecutor stated to the jury in closing argument:
I want to talk for a minute about reasonable doubt. . . .
What does it really mean? Well, you have gotten the
instruction from the Judge that tells you what it means, and I
want to highlight two parts of it.
Number one is it’s a doubt based on reason and on
common sense. It’s something that isn’t just, [o]oh, my spidey
senses are tingling and I don’t know why. It’s a doubt based
on reason. It’s something that you can articulate. It isn’t just
this, [w]ell, geez, I don’t know why I have doubt, but I have
doubt. It’s something tangible. It’s something meaningful.
And it also doesn’t mean beyond all possibility of doubt. Think
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of it as a practical matter, it is really difficult to prove things
with absolute certainty. I mean, there was a period of time
when people thought it had been proven with absolute certainty
that the earth was flat. Guess what? They were wrong. We
are not talking about proving it beyond all shadow of a doubt,
all possibility of doubt. We are talking about proving it beyond
a reasonable doubt, to a reasonable certainty, that it happened.
And so it’s important that you keep that in mind. This doesn’t
mean, you know, prove it—it’s reasonable doubt. It’s a doubt
based on reason.

Appellant argues that the prosecutor shifted the burden of proof by saying that
reasonable doubt is “something that you can articulate.” He argues that to require someone
to “articulate” something imposes a legal burden. Appellant claims that this statement
implied to the jury that appellant had to articulate a reason why he was not the driver, that
he had to prove his innocence.
Appellant fails to meet his plain-error burden. The prosecutor did not shift the
burden. He merely explained that reasonable doubt is based on something concrete, not
just a feeling. And the prosecutor did not state that appellant had to articulate anything;
the suggestion was that the jurors should be able to explain, beyond a feeling, what led
them to the conclusion that their reasonable doubt was or was not satisfied. Additionally,
appellant challenges just a few words in an entire argument. And the district court
instructed the jury twice on the state’s burden of proof. See State v. Ferguson, 581 N.W.2d
824, 835 (Minn. 1998) (stating that juries are presumed to follow instructions). The district
court instructed: “The [s]tate must convince [the jury] by evidence beyond a reasonable
doubt that the defendant is guilty of the crime charged. The defendant has no obligation to
9
prove [his] innocence.” Based on this record, appellant has not shown plain error in the
prosecutor’s closing argument.
Affirmed.