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This opinion is nonprecedential except as provided by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
A22-1373

State of Minnesota,
Respondent,

vs.

Kristopher Daniel Schwabe,
Appellant.

Filed August 14, 2023
Affirmed
Cochran, Judge

Chisago County District Court
File No. 13-CR-21-1053

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

Janet Reiter, Chisago County Attorney, John L. Lovasz, Assistant County Attorney, Center
City, Minnesota (for respondent)

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

Considered and decided by Wheelock, Presiding Judge; Cochran, Judge; and
Frisch, Judge.
NONPRECEDENTIAL OPINION
COCHRAN, Judge
In this direct appeal of two convictions of domestic assault, appellant argues that he
is entitled to a new trial because the prosecutor engaged in prejudicial misconduct. While
we agree with appellant that the prosecutor engaged in misconduct, we conclude that the
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prosecutor’s misconduct did not affect appellant’s substantial rights such that he is entitled
to a new trial. We therefore affirm.
FACTS
In the spring of 2022, r espondent State of Minnesota charged appellant Kristopher
Schwabe with three counts of misdemeanor domestic assault, in violation of Minn.
Stat. § 609.2242, subd. 1(2) (2020) . These charges stemmed from allegations that
Schwabe physically assaulted three family members—his son, his girlfriend’s son, and his
ex-wife—on December 29, 2021. A jury found Schwabe guilty of assaulting his son and
his girlfriend’s son but acquitted him of assaulting his ex-wife.
At trial, the state presented testimony from two of the alleged victims: the son of
Schwabe’s girlfriend and Schwabe’s ex-wife. The third alleged victim— Schwabe’s
biological son—did not testify. The state also presented testimony from the person who
gave shelter to Schwabe’s son after the alleged assault and testimony from the police
officer who interviewed Schwabe’s girlfriend’s son about the alleged assault. In addition,
the state introduced three exhibits, which the district court admitted into evidence.
At trial, Schwabe’s girlfriend’s son (E.P.) testified about how Schwabe assaulted
him in the early morning hours of December 29. He also testified that Schwabe assaulted
his own son (L.S.) on the same morning. According to E.P., he was living in Schwabe’s
home with his mother, Schwabe, and L.S. on the date of the assaults. At that time, E.P.
and L.S. were both fourteen years of age.
Around 1:00 a.m. on December 29 , E.P. was in his room watching a movie.
Schwabe came into E.P.’s room and asked E.P. if he wanted to play video games in the
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living room. E.P. agreed. Schwabe then woke up L.S. Schwabe told the boys to look in
the garage for the game-unit controllers. E.P. went to the garage, but L.S. stayed in the
living room. From the garage, which is connected to the house, E.P. could hear Schwabe
yelling at L.S. E.P. then saw Schwabe “shove” L.S. into the garage. Schwabe followed
L.S. into the garage. He then started yelling at both boys about “how [they] didn’t respect”
E.P.’s mother. E.P. testified that, at the time, he was kneeling on the floor, still looking for
the controllers. Schwabe then “grabbed the back of [his] head so that [E.P.] would [look]
at him.” Next, Schwabe picked up a glass jar and smashed it on a counter, about a foot
from E.P.’s face. Glass went onto E.P.’s neck and head, and L.S. ended up stepping in
some of the glass. Schwabe then took both boys’ cell phones, put the phones in the house,
and returned to the garage.
According to E.P., Schwabe thereafter hit L.S. several times with an open hand “in
the side of the head and in the face.” E.P. testified that Schwabe hit L.S. hard, in a manner
that looked painful . E.P. also testified that “it sounded like a smack” and that
L.S. screamed.
After this escalation, Schwabe went back into the house. E.P. and L.S. went back
inside as well but to a different part of the house. Schwabe found the boys and started
yelling at them again. At that point, L.S. ran out the front door, and E.P. went to his room
“to assess everything that had happen[ed].” Schwabe then came into E.P.’s room and
continued to yell at him. Schwabe pinned E.P. against the doorframe between E.P.’s room
and the hallway, “got[] up in [E.P.’s] face,” grabbed E.P.’s hair, and pulled E.P.’s head up
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by his hair so that E.P. would meet his eyes. E.P. testified that it hurt when Schwabe
grabbed his head and that he was scared. He also testified that Schwabe smelled of alcohol.
After pinning E.P. to the doorframe and grabbing his hair, Schwabe walked away.
He came back about ten minutes later in a calmer state and told E.P. to get in the car so
they could go look for L.S. They were unable to find L.S. and returned home sometime
before 4:00 a.m. E.P. testified that his relationship with Schwabe before this incident was
“so-so” and that he “didn’t like him, but [he] had to deal with him.”
R.J., who is Schwabe’s ex-wife and L.S.’s mother, testified next. She testified that
she missed a call from L.S. at about 1:30 a.m. on December 29 . The call came via a
Facebook account belonging to L.S.’s ex-girlfriend, not from L.S.’s phone. L.S. also sent
a message through the Facebook account that said, “This is [L.S.]. You need to answer.”
R.J. did not get L.S.’s message until she woke up at about 5:00 a.m. She was worried by
the message but was not able to reach L.S. until later that morning. R.J. eventually picked
up L.S. at his ex-girlfriend’s house, where he had gone after leaving Schwabe’s house.
L.S. explained to R.J. what had happened with Schwabe the night before. She drove L.S.
back to Schwabe’s house so he could “pack a bag” and to see if they could find E.P.
Schwabe was not there when they arrived but came home before they left. When Schwabe
pulled into the driveway, L.S. ran out of the house to his mother’s car. He waited there
while she talked with Schwabe.
R.J. testified that Schwabe asked her why she was at his house. She responded by
asking Schwabe why he had not told her that their son left Schwabe’s house in the middle
of the night without his phone or a jacket. According to R.J., Schwabe then “came rushing
5
towards [her], grabbed [her] arms, started shaking [her],” and scream ed in her face: “[I]s
this why the kids are so scared of me . . . because I do this?” and “I don’t understand why
they just don’t listen to me.” R.J. was only able to get back to her car when Schwabe
became distracted by his girlfriend, who was also at Schwabe’s house. As R.J. was backing
up the car, Schwabe pounded on the hood of the car and R.J.’s window. Schwabe followed
the car for about 50 feet, still screaming and hitting the car, before they were able to drive
away. R.J. and L.S. then went to the police department to report the incident.
J.P., the mother of L.S.’s ex-girlfriend, testified next. She testified that she awoke
in the middle of the night on December 29 to a loud banging sound. The sound was being
made by L.S., who was banging on the side of the house and asking J.P.’s daughter to let
him in. L.S. was wearing a T-shirt, jeans, and socks but no shoes. J.P. testified that L.S.
had “specks of blood on him” and that he was “very distraught.” J.P. let L.S. into the
house, where he unsuccessfully tried to contact his mother. L.S. and his ex-girlfriend left
for a short time to look for E.P ., but L.S. otherwise stayed at J.P.’s house until his mother
picked him up in the morning. According to J.P., this was the first time that L.S. had come
to their house in the middle of the night.
The last witness for the state was the police officer who took a recorded statement
from E.P. on the day after the alleged assault. The recording of E.P.’s statement was played
for the jury. In the recorded statement, E.P. told the officer that Schwabe was very angry
the night before, that he was yelling loudly, and that he hit L.S. and “put his hands on
[E.P.].” E.P. clarified for the officer that he first heard Schwabe yelling at L.S., and then
Schwabe started yelling at E.P. too. E.P. told the officer that he both heard and saw
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Schwabe hit L.S. in the head. And E.P. told the officer that after L.S. had left the house
and E.P. had gone to his room, Schwabe came back upstairs to E.P.’s room, pinned E.P.
against the doorframe between his room and the hallway, and grabbed E.P.’s hair to pull
his head back while continuing to yell at him. E.P. told the officer that Schwabe then
walked away but came back later and told E.P. to help him look for L.S. E.P. also told the
officer that Schwabe smelled of alcohol.
On cross-examination, defense counsel asked the officer—who was also a student
resource officer at the local high school—some questions about the truthfulness of minors.
First, defense counsel asked the officer if “any kid that you’re investigating [has] lied to
[you] before?” The officer said, “Yes.” Defense counsel also asked the officer if he would
agree that “minors can lie to police officers” and if the officer had experienced that before
in his job. The officer said, “Yes.” On re-direct, the prosecutor noted the officer’s
testimony that students at the local high school “will sometimes lie” and asked the officer
if students are also “sometimes truthful?” The officer said, “Yes.” He testified that
students are more often truthful. The prosecutor then asked the officer: “Did anything lead
you to think that [E.P.] was lying to you when you talked to him?” The officer said, “No.”
After the state rested, Schwabe testified in his own defense. On direct examination,
Schwabe did not testify in detail about what happened with the two boys, but he described
his later interaction with R.J. Schwabe testified that he found R.J. at his house on the
morning of December 29 and that she was “distraught” and accused Schwabe of lying
about what had happened with the boys the night before. Schwabe testified that he walked
up to R.J. and “was showing her what [he] did to [L.S.] because [he] just kind of
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straightened [L.S.] out a little bit.” He further testified that he “wasn’t hurting her” and
“wasn’t coming at her in an aggressive manner.”
On cross -examination, Schwabe seemed to dispute the testimony of the state’s
witnesses regarding the timing of certain events, such as when L.S. left the house. When
the prosecutor asked Schwabe how he knew the timing of these events, Schwabe
said: “Because it’s on video.” Schwabe explained that he has a “video thing” at his home
that looks down on the front yard and part of the driveway. Schwabe confirmed that he
had never provided this video to the state.
The prosecutor then asked Schwabe a series of questions about whether the state’s
witnesses were lying and whether they were engaged in a conspiracy against Schwabe.
The prosecutor first noted Schwabe’s disagreement with the other witnesses’ testimony on
the timing of events on December 29 and then asked if Schwabe was asserting that
“because [the witnesses] were off by an hour, none of it happened?” Schwabe disagreed
with this characterization of his position and acknowledged that “some of it happened” and
that he did yell at the boys. But he asserted that the state’s witnesses were “incorrect about
the fact that there was any physical violence.” The prosecutor then asked, “So is it your
testimony today that [L.S.], [E.P.] and [R.J.] are all conspiring against you to get you in
trouble for three separate assaults that you did not commit?” Schwabe responded, “In a
sense, yes.” The prosecutor asked again if Schwabe was asserting that “they’re all lying
about you physically assaulting them.” Schwabe said, “Yes.” The prosecutor then asked
if “they all conspired together to do this?” And Schwabe responded, “Not necessarily
together. It was kind of a team project though, yes.”
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In closing argument, the prosecutor summarized the testimony of the state’s
witnesses in detail and argued that the state’s evidence supported a guilty verdict for each
of the three domestic- assault counts against Schwabe. When discussing the evidence
supporting the first count—the charge that Schwabe assaulted L.S., the prosecutor
argued: “All of this evidence does not support [that] there’s some vast conspiracy for all of
these victims to come forward.” In addressing the second count—the charge that Schwabe
assaulted E.P., the prosecutor argued that, even if E.P. did not have a great relationship
with Schwabe, “That does not mean that he should be disbelieved or that because he’s a
teenager we can’t believe him.” And t he prosecutor again noted that Schwabe had not
presented any video from his home video monitoring system, which apparently has a view
of his front yard and driveway, as relevant evidence. The prosecutor concluded by asking
the jury to focus on the testimony that they heard, including: E.P.’s description of what
happened on the night in question , J.P.’s testimony that she awoke to L.S. seeking shelter
at her house in the middle of the night, and R.J.’s explanation of what occurred when she
and L.S. returned to Schwabe’s house.
The jury found Schwabe guilty of domestic assault of the two boys, L.S. and E.P.
The jury found Schwabe not guilty of domestic assault of his ex- wife, R.J. The district
court sentenced Schwabe to two concurrent 90-day jail terms for the two convictions.
Schwabe appeals.
DECISION
Schwabe seeks reversal of his convictions and a new trial on the ground that the
prosecutor engaged in prejudicial misconduct. Schwabe argues that the prosecutor
9
engaged in misconduct that prejudiced his right to a fair trial by (1) asking Schwabe if the
alleged victims were lying, (2) eliciting “vouching” testimony from the police officer,
(3) aligning with the jury by referring to the prosecutor and jury as “we,” and
(4) commenting on Schwabe’s failure to produce the video evidence. Schwabe did not
object to any of the alleged misconduct at trial.
We review unobjected -to prosecutorial misconduct under a modified plain-error
standard. State v. Parker, 901 N.W.2d 917, 925-26 (Minn. 2017). Under this standard, a
defendant has the burden of proving that the alleged misconduct constitutes an error that is
plain. Id. at 926 (citing State v. Ramey, 721 N.W.2d 294, 302 (Minn. 2006)). An error is
plain if it “contravenes case law, a rule, or a standard of conduct.” Ramey, 721 N.W.2d at
302. If a defendant establishes that the misconduct constitutes plain error, then the burden
shifts to the state to prove that the misconduct did not affect the defendant’s substantial
rights—in other words, “that there is no reasonable likelihood that the absence of the
misconduct . . . would have had a significant effect on the verdict.” Id. (quotation omitted).
If the state meets its burden, that ends our inquiry. See id. But if the state fails to prove
that the error did not affect the defendant’s substantial rights, then we must decide whether
to “address the error to ensure fairness and the integrity of the judicial proceedings.”
Caldwell v. State, 886 N.W.2d 491, 500 (Minn. 2016).
We first address whether any of the four claims of misconduct alleged by Schwabe
constitute plain error. Because we conclude that three of the four claims of prosecutorial
misconduct constitute plain error, we next consider whether the state met its burden to
prove that the prosecutor’s misconduct did not affect Schwabe’s substantial rights. W e
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ultimately conclude that the prosecutor’s misconduct did not affect Schwabe’s substantial
rights such that he is entitled to a new trial, although we recognize that this is a close case.
I. Schwabe has demonstrated that the prosecutor engaged in conduct that
constitutes plain error.

A. The prosecutor engaged in misconduct that constitutes plain error by asking
“were they lying” questions.

Schwabe first argues that the prosecutor engaged in misconduct by asking Schwabe
“were they lying” questions. “Were they lying” questions are generally posed by the state
to a criminal defendant on cross-examination. State v. Pilot, 595 N.W.2d 511, 516 n.1
(Minn. 1999). “Typically, the prosecutor will first ask the defendant if [they] heard the
testimony of . . . the state’s witnesses. Then the prosecutor will ask the defendant if the
witnesses’ testimony was accurate.” Id. If the defendant disputes the witnesses’ testimony,
then “the prosecutor will ask the defendant to comment on the veracity of the witnesses’
testimony by asking the defendant, ‘Were they lying?’” Id.
As a general rule, it is inappropriate for the state to ask a criminal defendant “were
they lying” questions because such questions “are perceived as unfairly giving the jury the
impression that in order to acquit, it must determine that the witness whose testimony
contradicts the defendant’s testimony is lyin g.” State v. Morton, 701 N.W.2d 225, 233
(Minn. 2005) (citing Pilot, 595 N.W.2d at 51 6). However, “‘were they lying ’ questions
are permissible when the defendant holds the issue of the credibility of the state’s witnesses
in central focus.” Id. (emphasis added) (quotation omitted). In Pilot, for example, “the
focus of the defense was that the state’s witnesses were lying and that the evidence against
[the defendant] was fabricated as part of a vast conspiracy to convict him of a crime he did
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not commit.” 595 N.W.2d at 518. Therefore, the supreme court concluded that the
prosecutor did not engage in misconduct by asking the defendant “were they lying”
questions because, under the circumstances, the prosecutor’s questions “could well have
assisted the jury in weighing [the defendant’s] own veracity and in evaluating his
conspiracy theory.” Id. In State v. Leutschaft, we clarified that the “central focus” test
established in Pilot and reaffirmed in Morton “appears to apply [only] when the defense
expressly accuses opposing witnesses of falsehoods or fabrications.” 759 N.W.2d 414, 422
(Minn. App. 2009), rev. denied (Minn. Mar. 17, 2009).
Here, during cross-examination, the prosecutor initiated the following exchange
with Schwabe about the timing of certain events on the night of December 29 and the
credibility of the state’s witnesses:
Q: And now you’re saying that because [the video] shows
12:24 [as the time] that [L.S.] left, all of this was made up. Not
one or 1:30 like they were saying. Because they were off by
an hour none of it happened is that what you’re saying?
A: No, that’s not what I’m saying.
Q: Okay. So some of it happened?
A: Some of it absolutely, yeah.
Q: They’re just wrong about the dates—or the times?
A: No. They’re also incorrect about the fact that there was any
physical violence.
Q: Okay. So you did yell at them, yes?
A: Absolutely, I did.
Q: Okay. So is it your testimony today that [L.S.], [E.P.] and
[R.J.] are all conspiring against you to get y ou in trouble for
three separate assaults that you did not commit; is that right?
A: In a sense, yes.
Q: In a sense. What sense?
A: Well, the sense that, well, my son [L.S.], he had just broke
up with his girlfriend. He was very emotional . . . .
. . . .
12
Q: So —so they’re all lying about you physically assaulting
them; is that right?
A: Yes.
Q: Okay. And they all conspired together to do this?
A: Not necessarily together. It was kind of a team project
though, yes.
Q: A team project but not necessarily all together?
A: I’m not sure how I can explain.
Q: Please do.
A: Okay. Well—
Q: How do you think they conspired to make this up against
you?
A: Well, because I believe my son was under some emotional
distress because of his first relationship ending. I believe that
turned him into wanting to kind of get the victim stance on
things . . . .

(Emphasis added.)
The prosecutor later asked Schwabe about R.J.’s testimony specifically:
Q: [Y]our position is that you didn’t shake [R.J.] or cause her
pain?
A: Absolutely not, no.
Q: And she was lying about that too?
A: Yes. I mean, I don’t know what level of pain she has,
but . . . it was a very light touch before she backed up.

(Emphasis added.)

On appeal, Schwabe argues that the pr osecutor’s “were they lying” questions
constitute plain error because “the defense theory [of the case] was not that the witnesses
against Schwabe were lying,” and “Schwabe did not put [E.P.’s] or [R.J.’s] credibility in
central focus.” (Emphasis added.) We agree.
We conclude that the prosecutor engaged in misconduct that constitutes plain error
by asking Schwabe “were they lying” questions on cross-examination because the
prosecutor did not have a proper basis for doing so. Schwabe did not expressly accuse any
13
of the state’s witnesses of lying about the relevant events or accuse them of conspiring
against him during his direct testimony or at any time before the prosecutor initiated that
line of questioning during cross-examination.1 See Leutschaft, 759 N.W.2d at 422. In fact,
Schwabe did not testify much at all about the alleged assaults of L.S. and E.P. during direct
examination, and he initially only disputed the timing of the alleged events, not the events
themselves, during cross-examination. Therefore, even though the credibility of the state’s
witnesses was important to the state’s case, these circumstances do not meet the “central
focus” test as clarified in Leutschaft. See id. For this reason, we conclude that the
prosecutor engaged in misconduct that constitutes plain error by asking Schwabe “were
they lying” questions on cross-examination.
B. The prosecutor did not elicit improper vouching testimony that amounts to
plain error.

Next, Schwabe argues that the prosecution engaged in misconduct that constitutes
plain error by eliciting vouching testimony from the police officer who took E.P.’s
statement. The state counters that the prosecutor did not engage in misconduct because
Schwabe opened the door to the prosecutor’s questioning.

1 Defense counsel did challenge the credibility of E.P.’s testimony while questioning him
on cross-examination. But, even assuming without deciding that this challenge passes the
“central focus” test as clarified in Leutschaft, defense counsel only directly challenged the
credibility of E.P.’s testimony. Neither Schwabe nor his defense counsel asserted at any
point before the prosecutor began asking the “were they lying” questions that any of the
other state’s witnesses were lying or that they were engaged in a conspiracy against
Schwabe. Yet the prosecutor asked Schwabe if L.S., E.P., and R.J. were all conspiring
against him and if R.J. was lying, despite the fact that L.S. did not testify at trial.
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Because “[t]he credibility of a witness is for the jury to decide,” prosecutors may
not elicit testimony from one witness vouching for or against the credibility of another
witness at trial. State v. Ferguson, 581 N.W.2d 824, 835 (Minn. 1998) (quotation omitted);
see, e.g., State v. Koskela, 536 N.W.2d 625, 630 (Minn. 1995) (noting the supreme court’s
concern about a police officer’s testimony, regarding a defendant’s confession, that the
officer “had no doubt whatsoever that [he] was taking a truthful statement”). But, where
the defense opens the door, the state may “respond with material that would otherwise have
been inadmissible.” State v. Bailey , 732 N.W.2d 612, 622 (Minn. 2007) (quotation
omitted). The opening-the-door doctrine “is essentially one of fairness and common sense,
based on the proposition that one party should not have an unfair advantage and that the
factfinder should not be presented with a misleading or distorted representation of reality.”
Id. (quotation omitted). Whether the door was opened as to any particular subject “depends
on the effect of questioning on the jury, not the intentions of counsel.” Id. at 622 n.4.
Here, defense counsel asked a series of questions when examining the police officer
that called into doubt E.P.’s credibility. During cross-examination, defense counsel asked
the officer if “any kid that you’re investigating [has] lied to [you] before?” The officer
said, “Yes.” Defense counsel asked the officer if he would agree that “minors can lie to
police officers” and if the officer had experienced that before in his job. The officer said,
“Yes.” Defense counsel asked, “Not uncommon is it?” The officer responded: “It
depends.” Defense counsel’s next question was: “During the course of this investigation
you spoke with [E.P.], correct?”
15
In response to this line of questioning, on re-direct, the prosecutor first
acknowledged the officer’s testimony that students “will sometimes lie” and then asked the
officer if students are also “sometimes truthful?” The officer said, “Yes.” The officer then
testified that students are more often truthful. The prosecutor then asked the officer: “Did
anything lead you to think that [E.P.] was lying to you when you talked to him?” The
officer said, “No.”
We conclude that the prosecutor’s question did not elicit improper vouching
testimony because defense counsel opened the door to the testimony at issue here. Defense
counsel initiated the line of questioning about the truthfulness of teenage witnesses by
asking the officer if students that he had investigated had lied to him and if he agreed that
“minors can lie to police officers.” After the officer said yes, the prosecutor followed up
with: “Not uncommon is it?” The officer responded: “It depends.” The prosecutor’s next
question was: “During the course of this investigation you spoke with [E.P.], correct?” The
clear implication of this questioning was that E.P. might be an unreliable or untruthful
witness because “minors can lie to police officers.” Thus, defense counsel opened the door
to the prosecutor’s follow-up question, on re -direct, about whether the officer had any
reason to believe that E.P. was lying when he gave his statement. In other words, defense
counsel’s questioning on cross-examination presented “a misleading or distorted
representation of reality” to the jury that, in fairness, the state was entitled to rebut. See id.
at 622. We therefore conclude that the prosecutor did not engage in misconduct or commit
plain error by eliciting vouching testimony from the officer about E.P.’s credibility.
16
C. The prosecutor engaged in misconduct that constitutes plain error by
improperly aligning the prosecution with the jury.

Next, Schwabe argues that the prosecutor engaged in misconduct that constitute s
plain error by improperly aligning with the jury when they made a statement during closing
argument that referred to the prosecutor and the jury as “we.”
Because “a prosecutor is not a member of the jury,” a prosecutor’s use of “we”
statements in closing argument “is inappropriate.” State v. Mayhorn, 720 N.W.2d 776, 790
(Minn. 2006). In Mayhorn, the supreme court concluded that the prosecutor had engaged
in misconduct by stating: “This is kind of foreign for all of us, I believe, because we’re not
really accustomed to this drug world.” Id. at 789 (emphasis added). The supreme court
was concerned that the prosecutor’s comment “aligned [the prosecutor] with the jury” and
against the defendant and that the statement highlighted “cultural differences between the
predominantly white jury and the defendant.” Id. at 789-90.
But a prosecutor’s use of “we” statements does not automatically constitute
misconduct. Nunn v. State, 753 N.W.2d 657, 663 (Minn. 2008). In Nunn, for example, the
supreme court determined that the prosecutor’s use of “we” statements during closing
argument was not misconduct, noting that the statements were used to summarize the
evidence presented at trial, and that the use of the pronoun “we” could reasonably be
interpreted to refer to everyone who was in the courtroom when the evidence was presented
and did not necessarily exclude the defendant. Id.
Here, while discussing E.P.’s testimony during closing argument, the prosecutor
contended that, even if E.P. did not have a great relationship with Schwabe, it was not
17
atypical for a teenager to have a difficult relationship with a parental figure. The prosecutor
then argued: “That does not mean that [E.P.] should be disbelieved or that because he’s a
teenager we can’t believe him.” (Emphasis added.)
Schwabe argues that the prosecutor used “we” in the above statement to improperly
align the prosecution with the jury, citing Mayhorn. The state argues that “[t]he challenged
statement, in this case, is more like those in Nunn than those in Mayhorn” because the
prosecutor was just “summarizing the evidence to the jury,” not attempting to highlight
differences between the jury and the defendant.
We conclude that the prosecutor’s “we” statement was misconduct that constitutes
plain error. The state is correct that the prosecutor made no attempt to highlight differences
between the jury and the defendant, as the prosecutor did in Mayhorn. But the prosecutor’s
statement here was part of an argument about E.P.’s credibility, not just a summary of the
evidence. The prosecutor’s phrasing —“[t]hat does not mean that [E.P.] should be
disbelieved or that because he’s a teenager we can’t believe him”— did improperly align
the prosecutor with the jury. (Emphasis added.) And the prosecutor’s statement is
meaningfully distinguishable from those at issue in Nunn, where the supreme court
explained that the prosecutor’s use of “we” during the closing argument “could reasonably
be interpreted . . . to refer to everybody who was in court when the evidence was
presented,” including the defendant. 753 N.W.2d at 663. Here, the prosecutor was
emphasizing E.P.’s credibility in contrast to Schwabe’s. Thus, we conclude that the
prosecutor improperly aligned themselves with the jury and engaged in misconduct that
constitutes plain error by referring to the prosecution and the jury as “we.”
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D. The prosecutor engaged in misconduct that constitutes plain error by
commenting on Schwabe’s failure to present evidence.

Finally, Schwabe argues that the prosecutor engaged in misconduct that constitutes
plain error by commenting on Schwabe’s failure to present evidence—the video of
Schwabe’s front yard and driveway discussed during Schwabe’s cross-examination.
“The prosecutor may not shift the burden of proof to the accused by commenting
about his failure to call witnesses or to present evidence.” State v. Race, 383 N.W.2d 656,
664 (Minn. 1986). To do so “is highly improper and constitutes prosecutorial misconduct.”
State v. McDaniel, 777 N.W.2d 739, 750 (Minn. 2010) (quotation omitted). But “a remark
by a prosecutor on the lack of evidence regarding the defense’s theory [does] not shift the
burden of proof to the defense.” State v. Gassler, 505 N.W.2d 62, 69 (Minn. 1993) (citing
Race, 383 N.W.2d at 664). To determine whether the prosecutor misstated the burden of
proof in closing argument, we assess the argument “as a whole, rather than just selective
phrases or remarks that may be taken out of context or given undue prominence.”
State v. Carridine, 812 N.W.2d 130, 148 (Minn. 2012) (quotation omitted).
Here, Schwabe’s video evidence was first discussed during the prosecutor’s
cross-examination of Schwabe, when the prosecutor asked Schwabe the following:
Q: You would agree [the video] might be the best evidence on
what occurred that night, wouldn’t you?
A: It doesn’t show anything of the night.
Q: You would agree it would be the best evidence of what
occurred that night wouldn’t you?
A: Oh, yes. Mm-hmm.
Q: That it would tell the jury what occurred?
A: Mm-hmm.
Q: At least from your perspective, correct?
A: Yes.
19
Q: And you’ve waited [un]til now to disclo se that you have
one and you have never provided it to the State before, correct?
A: That’s correct.

The prosecutor addressed the video again during closing argument, saying:
The defendant took the stand in this case and he testified to a
vast conspiracy to set him up for these charges. I’d ask you
this about what would all have to go into that to make it true.
We have four distinct witnesses that testified to their own
experiences. Consistent statements with statements they made
earlier in the case to different individuals. And then we also
heard from the defendant just today that apparently there’s a
video that exists that shows exactly what happened except there
is no video and it’s not here and you can’t see it.

(Emphasis added.)
Schwabe argues that the prosecutor’s comment in closing argument about
Schwabe’s failure to present the video was misconduct because it “impermissibly
suggested that Schwabe had some burden in the case” and implied that he failed to meet
that burden by not presenting the video evidence. By contrast, the state asserts that
Schwabe mentioned the video during his testimony as a means of challenging E.P.’s
credibility as a witness and argues that the prosecutor was merely commenting on the
theory of Schwabe’s case—that E.P. was an unreliable witness—by mentioning the video
in closing argument.
We conclude that the prosecutor’s comment was misconduct that constitutes plain
error. Our review of the record shows that the prosecutor’s statement was not a permissible
comment on Schwabe’s theory of the case. Rather, it implied to the jury that Schwabe had
the burden to present the video evidence at trial because it might have proved his innocence.
That suggestion is “highly improper and constitutes prosecutorial misconduct.” McDaniel,
20
777 N.W.2d at 750 (quotation omitted). We therefore conclude that the prosecutor engaged
in misconduct that constitutes plain error by commenting on Schwabe’s failure to present
the video evidence.
II. The prosecutor’s misconduct did not affect Schwabe’s substantial rights.

Having concluded that the prosecutor engaged in conduct that is plainly erroneous,
we next consider whether the prosecutor’s errors—asking Schwabe “were they lying”
questions, improperly aligning with the jury, and impermissibly commenting on Schwabe’s
failure to present evidence—cumulatively affected Schwabe’s substantial rights. “A plain
error affects a defendant’s substantial rights if it was prejudicial and affected the outcome
of the case.” Parker , 901 N.W.2d at 926 (quotation omitted). “An error is prejudicial if
there is a reasonable likelihood that the error had a significant effect on the jury’s verdict.”
Id. (quotation omitted). The state has the burden to prove that any plain errors did not
affect the defendant’s substantial rights. Ramey, 721 N.W.2d at 302.
In evaluating whether prosecutorial misconduct affected a defendant’s substantial
rights, we consider several factors, including: “(1) the strength of the evidence against [the
defendant]; (2) the pervasiveness of the erroneous conduct; and (3) whether [the defendant]
had an opportunity to rebut any improper remarks.” State v. Peltier, 874 N.W.2d 792,
805-06 (Min n. 2016). We also consider the cumulative effect of the prosecutor’s
misconduct on the defendant’s right to a fair trial. State v. Dobbins, 725 N.W.2d 492, 506
(Minn. 2006).
21
Based on our review of the relevant factors and the potential cumulative effect of
the errors, we acknowledge that this is a close case.2 But we are ultimately convinced that
the prosecutor’s plain errors did not affect Schwabe’s substantial rights. We reach this
conclusion for several reasons. First, the evidence against Schwabe was strong. The state
presented direct testimony from two eyewitnesses—E.P. and R.J. Their stories were
corroborated by additional testimony that L.S. showed up at his ex -girlfriend’s home on
the night of the incident without shoes or a jacket on, appearing distraught and with specks
of blood on him. The state also presented E.P.’s prior consistent statement to police and
other corroborating evidence, like confirmation that L.S. tried to reach his mother around
1:30 a.m. after the incident occurred.
Second, the prosecutor’s errors were not pervasive, even when considered together.
Although the prosecutor asked Schwabe a series of “were they lying” questions
(approximately six questions in total), that line of questioning is fairly limited when viewed
in the context of Schwabe’s entire cross-examination, which spans approximately 13
transcribed pages. The prosecutor’s single “we” statement, which improperly sought to
align the prosecutor with the jury, was also quite limited in the context of the entire closing
argument. The prosecutor used the “we” pronoun only one time and otherwise consistently

2 We are concerned by the state’s arguments on appeal asserting that the prosecutor did not
engage in any misconduct constituting plain error. We emphasize that Minnesota law
generally prohibits prosecutors from asking a defendant “were they lying” questions on
cross-examination, using “we” statements to refer to the prosecutor and the jury in closing
argument, and shifting the burden of proof by commenting on a defendant’s failure to
present evidence. Morton, 701 N.W.2d at 233; Mayhorn, 720 N.W.2d at 790; McDaniel,
777 N.W.2d at 750. And we underscore the seriousness of this misconduct.
22
referred to the jury as “you” throughout the argument. See Ture v. State, 681 N.W.2d 9,
19 (Minn. 2004) (explaining that when considering whether prosecutorial misconduct
prejudiced a defendant, we “look to the closing argument as a whole, rather than to selected
phrases and remarks”). And the prosecutor’s comment on Schwabe’s failure to present the
video evidence was similarly limited to a single statement. While the three errors are
necessarily more pervasive in combination, they are still limited in nature.
Third, any cumulative pervasiveness of the prosecutor’s misconduct was off-set by
defense counsel’s opportunity to rebut the prosecutor’s questions and comments and by the
district court’s curative jury instructions. Defense counsel had the opportunity to object to
the prosecutor’s “were they lying” questions or mitigate their effect by questioning
Schwabe on re-direct examination about why he believed the state’s witnesses were lying.
And defense counsel could have rebutted the prosecutor’s “we” statement and improper
comment on Schwabe’s failure to present the video evidence during closing argument. In
addition, the district court gave several relevant jury instructions, including that the
arguments of attorneys are not evidence, the jury is the sole judge of witness credibility,
the state has the burden to prove a defendant’s guilt, and a defendant does not have the
burden to prove his innocence. These instructions likely cured the prosecutor’s misconduct
during the closing argument. See Race, 383 N.W.2d at 664 (noting that “[p]rosecutorial
error is curable by corrective [jury] instructions”); State v. Henderson, 620 N.W.2d 688,
703 (Minn. 2001) (explaining that a prosecutor’s improper suggestion that a defendant has
the burden of proof may be cured by a jury instruction that the defendant does not have to
prove their innocence).
23
In sum, while we are concerned by the prosecutor’s misconduct, we are convinced
that the strength of the evidence against Schwabe outweighs the possibility of any
prejudicial effect from the prosecutor’s misconduct. Any prejudicial effect was also
tempered by defense counsel’s ability to rebut the prosecutor’s improper questions and
comments during re-direct examination and closing argument, and by the district court’s
curative jury instructions. We therefore conclude that there is no reasonable likelihood that
the absence of any of the prosecutor’s plain errors would have had a significant effect on
the jury’s verdict. This conclusion is reinforced by the fact that the jury acquitted Schwabe
of the charge of domestic assault on R.J., which shows that the jury was able to
independently evaluate the evidence presented and was not improperly swayed by the
prosecutor’s misconduct. Therefore, the state has met its burden to establish that
Schwabe’s substantial rights were not prejudiced.
Affirmed.