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This opinion is nonprecedential except as provided by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
A22-0772

State of Minnesota,
Respondent,

vs.

Alexander James Mueller,
Appellant.

Filed May 1, 2023
Affirmed
Bratvold, Judge

Hennepin County District Court
File No. 27-CR-21-1241

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

Mary F. Moriarty, Hennepin County Attorney, Kelly O’Neill Moller, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

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

Considered and decided by Bratvold, Presiding Judge; Johnson, Judge; and Bryan,
Judge.
NONPRECEDENTIAL OPINION
BRATVOLD, Judge
Appellant challenges his conviction for second-degree assault with a dangerous
weapon, arguing that the prosecuting attorney committed misconduct during closing
argument. Because we conclude that most of the prosecuting attorney’s arguments were
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not plainly erroneous and that the state met its burden to show that any plain error did not
prejudice appellant, we affirm.
FACTS
The following summarizes evidence received during the jury trial. On January 18,
2021, appellant Alexander James Mueller was in Minneapolis visiting his friends, P.V. and
H.T., who lived together in a downtown Minneapolis apartment. Mueller and P.V. spent
“most of the day” drinking at a bar. In the evening, H.T. and his girlfriend, A.A., met the
pair at the bar. After a few drinks, the four friends returned to P.V. and H.T.’s apartment.
Mueller was “pretty drunk” and required assistance walking but appeared to be “having a
good time.”
The four friends went into P.V.’s bedroom to avoid disturbing a Bible study that
was meeting in the living room. While in the bedroom, Mueller began to get
“rambunctious, wanting to leave, and he started to get a little agitated.” The three friends
tried to “calm [Mueller] down and just coax him into staying in that room because [they]
only had a few minutes left till everyone [in the Bible study] left.”
Mueller became increasingly agitated and made threatening statements, such as ,
“I’m going to f--king kill you. I am going to bite your liver.” H.T. again tried to calm
Mueller down. About 15-20 minutes later, the Bible study ended, and the four friends were
alone in the apartment. Mueller left the bedroom. H.T. hid the kitchen knives because
Mueller “was starting to get very odd.”
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The group moved to the living room. Mueller fluctuated between saying “how much
he loved” P.V. and H.T. and saying “he wanted to kill” P.V., H.T., and A.A. This went on
for about eight minutes until the friends persuaded Mueller to sit on the couch.
A.A. brought Mueller his phone and placed it in front of him on the coffee table.
Mueller lunged toward A.A., stating, “Get the f--k away from me. I am going to f-- king
kill you.” A.A. retreated to the bedroom while P.V. and H.T. attempted, again, to calm
Mueller down. About one minute later, Mueller walked into the bedroom, did not talk to
A.A., went directly to his jacket, unzipped a pocket, pulled out a gun, unholstered it, and
pointed the gun at A.A.’s head. A.A. stood about a foot and a half in front of Mueller.
P.V. and H.T. had followed Mueller into the bedroom. H.T. grabbed Mueller’s
shoulder as Mueller squeezed the trigger. Two shots fired, and A.A. ran out of the room
uninjured. P.V. and H.T. tackled Mueller to the ground, and the gun fired several more
times. The gun either jammed or ran out of bullets; P.V. and H.T. ran from the bedroom.
P.V., H.T., and A.A. fled from the apartment to the lobby.
Sometime after the three friends left the apartment, Mueller dialed 911 and
requested a “swat team” for an “armed robbery.” Mueller shouted expletives during the
911 call. A short time later, Mueller exited the elevator and stood in the lobby, waving and
firing the gun. Police officers ordered Mueller to drop the gun and lie down on the ground.
Mueller complied and was arrested.
On January 20, 2021, respondent State of Minnesota charged Mueller with three
counts of second-degree assault with a dangerous weapon under Minn. Stat. § 609.222,
subd. 1 (2020)— one count for each of the three friends— P.V., H.T., and A.A. Before trial,
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Mueller moved for a jury instruction on the defense of voluntary intoxication. The state did
not object.
During the jury trial in January 2022, the state called six witnesses: P.V., H.T., A.A.,
two police officers, and a forensic scientist. The forensic scientist testified that there were
two bullet defects in the lobby and multiple bullet defects, casings, and fragments
recovered from inside the apartment that matched the 9mm gun police took from Mueller.
A recording of Mueller’s 911 call and a surveillance video of Mueller exiting the elevator
into the lobby while holding a gun were also admitted into evidence. After resting its case,
the state moved to dismiss counts 2 and 3— the counts alleging assault against P.V. and
H.T.
Mueller did not testify. Mueller offered expert testimony from a forensic
toxicologist about common behaviors exhibited under various levels of intoxication,
including “exaggerated emotions” and “hallucinat[ions]” at higher alcohol concentrations.
During closing argument, Mueller’s attorney contended Mueller was too intoxicated to
form the specific intent required to be guilty of second-degree assault because “[i]t’s clear
he was hallucinating. ” Mueller’s attorney argued the state failed to prove that Mueller
intended to cause A.A. fear of bodily harm or death when he pointed the gun at her head.
The jury found Mueller guilty of second-degree assault with a dangerous weapon.
The district court sentenced Mueller to 36 months in prison.
Mueller appeals.
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DECISION
Mueller argues that the prosecuting attorney committed misconduct during closing
argument. Mueller did not object to the arguments during trial. Appellate courts review
unobjected-to error for plain error affecting a defendant’s substantial rights. Minn. R. Crim.
P. 31.02. An appellate court reviews unobjected-to prosecutorial misconduct under a
modified plain-error standard. State v. Ramey , 721 N.W.2d 294, 299-300 (Minn. 2006).
Under the modified plain-error standard, the defendant must show that (1) there was error,
and (2) the error was plain. Id. at 302 (citing State v. Griller, 583 N.W.2d 736, 740 (Minn.
1998)). “An error is plain if it was clear or obvious.” State v. Strommen, 648 N.W.2d 681,
688 (Minn. 2002) (quotation omitted). This is usually shown when the error “contravenes
case law, a rule, or a standard of conduct.” Ramey, 721 N.W.2d at 302.
Once plain error is established, the burden shifts to the state to show a lack of
prejudice to the defendant. Id. To do so, “the state would need to show that there is no
reasonable likelihood that the absence of the misconduct in question would have had a
significant effect on the verdict of the jury.” Id. (quotation omitted).
If an appellate court determines that any one of the three factors is not satisfied, it
need not address the other two factors. State v. Lilienthal, 889 N.W.2d 780, 785 (Minn.
2017). If all three factors are satisfied, the appellate court “then assesses whether the error
should be addressed to ensure fairness and the integrity of the judicial proceedings.”
Ramey, 721 N.W.2d at 302. We first address whether the re was error that was plain, then
we analyze whether the state showed the absence of prejudice.
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“When evaluating prosecutorial misconduct during a closing argument, [an
appellate court] look[s] to the closing argument as a whole, rather than to selected phrases
or remarks.” State v. Smith, 876 N.W.2d 310, 335 (Minn. 2016) (quotation omitted).
Prosecuting attorneys have “considerable latitude in closing argument” and are not
“required to make a colorless argument.” State v. Smith, 541 N.W.2d 584, 589 (Minn.
1996). “In closing arguments, counsel has the right to present to the jury all legitimate
arguments on the evidence, to analyze and explain the evidence, and to present all proper
inferences to be drawn therefrom.” Id.
Mueller contends the prosecuting attorney made three types of improper statements
during closing argument and that each statement was plain error. Mueller identifies these
three types of statements: misstating the law, inflaming the jury, and shifting the burden of
proof. We address each type of statement in turn.
A. Misstating the Law
A prosecuting attorney may not misstate the law in closing arguments. Strommen,
648 N.W.2d at 689. Mueller contends that the prosecuting attorney’s argument that Mueller
did not show voluntary intoxication as a defense misstated the law by stating that
intoxication “cannot be a legal defense,” intoxication did not “actually appl[y]” to this case,
and intoxication does “nothing for the analysis” of Mueller’s intent. A criminal defendant
may raise intoxication as a defense “when a particular intent or other state of mind is a
necessary element to constitute a particular crime.” Minn. Stat. § 609.075 (2020). To prove
assault, the state must establish beyond a reasonable doubt that Mueller acted “with intent
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to cause fear in another of immediate bodily harm or death.” Minn. Stat. § 609.02,
subd. 10(1) (2020) (emphasis added).
Mueller relies on Strommen, 648 N.W.2d at 689, arguing it shows a similar instance
of a prosecuting attorney misstating the law. The state tried Strommen for attempted
robbery, and he argued that he had voluntarily abandoned the attempt. Strommen,
648 N.W.2d at 684. During closing arguments, the prosecuting attorney stated, “As soon
as they walked in the store with that mask on, with the intent to commit a crime, boom, the
crime is committed. It doesn’t matter what happened after that.” Id. at 685. Defense counsel
objected, and the district court gave a curative instruction to the jury. Id. The supreme court
determined that “it was improper for the prosecutor to state, during his closing argument,
that it did not matter what happened after Strommen walked into the store.” Id. at 689. The
supreme court reasoned that what happened after Strommen walked into the store “was
critical to whether the jury could properly convict Strommen of attempted robbery.” Id.
The supreme court reversed Strommen’s conviction based on evidentiary errors as well as
prosecutorial misconduct. Id. at 690.
Mueller argues that the prosecuting attorney ’s arguments are analogous to the
improper arguments made in Strommen and thus were plain error. Mueller argues that
because his intoxication negated the intent element of the charged offense, the prosecuting
attorney’s argument “that the intoxication defense did not ‘apply’ to the facts of this case”
misstated the law. The state argues that Mueller “takes the prosecutor’s comments out of
context” and that the prosecuting attorney prefaced his comment by “referencing the jury
instruction that the court had just provided.”
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With Strommen in mind, we examine each of the three statem ents Mueller
challenges. First, Mueller challenges the prosecuting attorney’s argument that intoxication
“is not, and it cannot be a legal defense.” We conclude that this statement paraphrased the
jury instruction on the defense of voluntary intoxication, which began, “The defendant has
asserted a defense of intoxication. It is generally not a defense to a crime that the defendant
was intoxicated at the time of the act if the defendant voluntarily became intoxicated. ”
Here, the prosecuting attorney referred to the jury instructions just before commenting that
intoxication “is not, and it cannot be a legal defense.” Shortly after making this statement,
the prosecuting attorney added, “The instructions say you can consider intoxication when
determining whether the defendant could form the requisite intent . . . .” Based on this
context, we conclude that the prosecuting attorney’s statement was referring to voluntary
intoxication generally and not arguing that intoxication is not a defense to the intent
element in this case. In contrast, the improper statement in Strommen was not clarified by
its context.
Second, Mueller challenges the prosecuting attorney’s argument that the
intoxication instruction “might apply” in another case but did not “actually appl[y]” to this
case. We conclude that this statement conveys a hypothetical scenario as an example of
when the intoxication defense “might apply.” The prosecuting attorney distinguished
between the hypothetical scenario and the evidence in Mueller’s case. Thus, we conclude
the second statement did not misstate the law.
Third, Mueller challenges the prosecuting attorney’s argument that “extreme
intoxication” does “nothing for the analysis of what [Mueller’s] intent was.” We conclude
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this statement must be viewed in context. Mueller’s defense theory throughout the case
was that Mueller could not have formed the necessary intent because “he was
hallucinating.” During closing argument, the prosecuting attorney stated, “However,
hallucinations, even if they are authentic, do nothing for the analysis of what his intent was.
Hallucination and/or extreme intoxication were the motive for his drunken rage.” Mueller’s
brief to this court inaccurately paraphrases the prosecuting attorney’s argument. The
prosecuting attorney was addressing the hallucination theory and not stating that Mueller’s
intoxication does not weigh into the analysis of the intent element. Thus, the prosecuting
attorney was arguing the jury should reject the defense attorney’s argument, which is not a
misstatement of the law.
When we review the challenged statements in context, we conclude that the
prosecuting attorney was distinguishing the facts of this case from other instances of
voluntary intoxication. Thus, the prosecuting attorney did not misstate the law.
B. Inflaming the Jury
“The prosecutor must avoid inflaming the jury’s passions and prejudices against the
defendant.” State v. Porter, 526 N.W.2d 359, 363 (Minn. 1995). We have stated that it is
“improper for a prosecutor to urge the jury to protect society with its verdict.” State v.
Hoppe, 641 N.W.2d 315, 320 (Minn. App. 2002), rev. denied (Minn. May 14, 2002). A
prosecuting attorney must not “distract the jury from its proper role of deciding whether
the state has met its burden.” State v. Ashby, 567 N.W.2d 21, 27 (Minn. 1997).
Mueller argues that the prosecuting attorney committed plain error by “inflam[ing]
the jury’s passions and prejudices” and making statements “that the jury should convict
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Mueller to protect society.” In his brief to this court, Mueller contends that the prosecuting
attorney’s statements “could be construed as asking the jury to send a message, via guilty
verdict, to Mueller specifically and to ‘criminals’ generally that they cannot escape
criminal liability by ‘get[ting] really drunk before [they] commit a crime.’” The state
responds that the arguments were not improper.
Mueller’s challenge focuses on these two passages from the prosecuting attorney’s
closing argument:
[1] You think there aren’t enough criminals out there who can’t
handle their alcohol without legally encouraging them just to
make sure you get really drunk before you commit a crime?

. . . .

[2] If the defendant had shot and killed [A.A.], would anyone
seriously consider the argument that he didn’t intend to kill
her? Intentional murder is a specific-intent crime. “Oh, but I
was really drunk.” Would you consider that? Why should it be
any different just because he was tackled prior to firing the gun
several times, and the answer is it is not.

We agree with Mueller that the first statement was plain error because it could reasonably
be understood as urging the jury to protect society by emphasizing the negative
consequences of “legally encouraging” intoxication before engaging in criminal conduct.
The prosecuting attorney committed misconduct by arguing about the societal implications
of acquitting defendants who assert voluntary intoxication as a defense, which was plain
error. See, e.g., Hoppe, 641 N.W.2d at 320-22 (reversing and remanding after determining
prosecuting attorney’s statements implied the jury should protect their “loved ones” from
drunk driving).
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The second statement, however, was a valid way to frame a hypothetical argument
about Mueller’s intent. Witness testimony supports the prosecuting attorney’s hypothetical
scenario, in which A.A. was struck and killed by a bullet because P.V. and H.T. did not
intervene in time. The second statement is not inflammatory because the hypothetical
scenario is supported by evidence.
C. Shifting the Burden of Proof
A misstatement of the burden of proof is “highly improper and constitutes
prosecutorial misconduct.” State v. McDaniel, 777 N.W.2d 739, 750 (Minn. 2010)
(quotation omitted). A prosecuting attorney improperly shifts the burden of proof “when
they imply that the defendant has the burden of proving his innocence.” Id. (quotation
omitted). “But ‘a prosecutor’s comment on a lack of evidence supporting a defense theory
does not improperly shift the burden.’” State v. Nissalke, 801 N.W.2d 82, 106 (Minn. 2011)
(quoting McDaniel, 777 N.W.2d at 750).
Mueller argues that the prosecuting attorney’s rebuttal argument improperly shifted
the burden of proof by stating that Mueller must affirmatively disprove the element of
intent. The state responds that no error occurred because the prosecuting attorney was
responding to an argument made during Mueller’s closing argument.
The prosecuting attorney stated, during rebuttal:
[Defense] counsel says I ignored intent. What I said was what
other intent could you have when you point a loaded weapon
at somebody’s face. Did you hear him come up with an
answer? I didn’t hear it. Maybe you guys can come up with
one.

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Again, we examine the context. During closing argument, Mueller’s attorney contended
that the state failed to prove the intent element beyond a reasonable doubt. The challenged
statement by the prosecuting attorney asked the jury what other intent there possibly could
be when you point a gun at someone’s head: “Did you hear him come up with an answer?
I didn’t hear it.”
This question is reasonably understood to mean that it is Mueller’s responsibility to
produce evidence of an alternative intent, which improperly shifts the state’s burden to
prove intent beyond a reasonable doubt. See, e.g., Porter, 526 N.W.2d at 364-65 (reversing
and remanding after determining prosecuting attorney’s statements implied the defense
failed to impeach a state witness). For that reason, the prosecuting attorney’s rhetorical
question was plain error.
D. State’s Burden to Prove Absence of Prejudice
Because two of the prosecuting attorney’s statements were plainly erroneous, the
state bears the burden to show that “there is no reasonable likelihood that the absence of
the misconduct in question would have had a significant effect on the verdict of the jury.”
Ramey, 721 N.W.2d at 302 (quotations omitted). To evaluate whether the prosecuting
attorney’s statements affected Mueller’s substantial rights, an appellate court considers
(1) the strength of the evidence against Mueller, (2) the pervasiveness of the erroneous
conduct, and (3) whether Mueller had an opportunity to rebut improper remarks. State v.
Peltier, 874 N.W.2d 792, 805-06 (Minn. 2016).
Mueller argues that the state cannot show that the prosecutorial misconduct did not
affect his substantial rights because “whether the state met its burden of proving Mueller
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intended to cause A.A. to fear immediate bodily harm or death” was the “critical issue” in
this case. We disagree because the three factors discussed in Peltier weigh in the state’s
favor.
First, ample record evidence shows that Mueller intended to cause A.A. fear of
imminent harm or death: (1) A.A. testified that, right before pointing the gun at her head,
Mueller had threatened to kill her, and she felt that his agitation was directed at her
specifically; (2) immediately after Mueller threatened A.A., Mueller followed A.A. into
the bedroom and was “completely quiet”; (3) Mueller “walked directly toward his coat,”
retrieved his gun from the coat pocket, pointed it at A.A.’s face, and pulled the trigger;
(4) when in the apartment lobby, Mueller readily complied with police-officer commands
to drop his gun and lie on his stomach; and (5) Mueller asked police officers if “the guys
are okay” on the morning after the shooting. All of these facts supported the state’s burden
to prove that, despite Mueller’s intoxication, he understood that pointing a gun at A.A.’s
head would cause fear of imminent bodily harm or death, and Mueller intended to cause
that fear.
Second, the plainly erroneous remarks were brief and not pervasive. See State v.
Prtine, 784 N.W.2d 303, 315 -16 (Minn. 2010) (determining the prosecuting attorney’s
improper statements were brief and did not affect appellant’s substantial rights). Taken
together, all of the contested arguments by the prosecuting attorney amount to five brief
statements, which— as Mueller points out— appear “on just six transcript pages” and
“during [a] brief argument.”
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Third, Mueller had an opportunity to rebut some of the prosecuting attorney’s
improper remarks. During closing arguments, Mueller’s attorney stated:
Without intent the state can’t prove guilt because they have
chosen to charge assault, and assault has a specific definition.

. . . .

Your job is not to punish Mr. Mueller. Your job is not to ensure
that moving forward this doesn’t happen again. It’s not to
ensure he receives treatment or anything like that. Your job is
to determine whether the state has proven the crime that they
chose to charge Mr. Mueller with, and that is a specific crime.
That is assault, and assault requires intent. If the state has not
proven intent, they have failed to prove their case, they have
failed to . . . prove their case beyond a reasonable doubt.

In sum, Mueller’s substantial rights were not affected by the prosecuting attorney’s
improper statements during closing arguments. Even though two statements were plainly
erroneous, Mueller is not entitled to reversal of his conviction for second-degree assault
with a deadly weapon because t he state met its burden to prove there is no reasonable
likelihood that the lack of these statements would have made an impact on the jury verdict.
See Ramey, 721 N.W.2d at 302.
Affirmed.