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This opinion is nonprecedential except as provided by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
A23-0394

State of Minnesota,
Respondent,

vs.

Brandon Charles Brown,
Appellant.

Filed February 12, 2024
Affirmed
Bjorkman, Judge

Cass County District Court
File No. 11-CR-21-1238

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

Benjamin T. Lindstrom, Cass County Attorney, Chelsea Langton, Assistant County
Attorney, Walker, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Jenna Yauch-Erickson, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Ede, Presiding Judge; Worke, Judge; and Bjorkman,
Judge.
NONPRECEDENTIAL OPINION
BJORKMAN, Judge
Appellant challenges his convictions of aiding and abetting first-degree burglary
and fifth-degree possession of a controlled substance following a jury trial, arguing that the
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prosecutor committed misconduct by eliciting evidence of other crimes or bad acts without
satisfying the requirements of Minn. R. Evid. 404(b)(2). Because any claimed misconduct
did not affect appellant’s substantial rights, we affirm.
FACTS
At approximately 3:00 a.m. on July 28, 2021, a sheriff’s deputy responded to a
report of an assault and burglary at a residence on Onigum Road in Cass County. Upon
arriving at the scene, the deputy spoke with C.D. and his mother, C.A., with whom C.D.
was living at the time of the assault. C.A. told the deputy that David James Whitebird Jr.
and appellant Brandon Charles Brown assault ed C.D. in her home. The deputy observed
and took photos of a cut and blood on the back of C.D.’s head, and the blood on the floor,
wall, and bed in the back bedroom where C.D. was assaulted.
Later that morning, another officer found and arrested Brown, who had been
walking on Onigum R oad toward Walker. While booking Brown, the sergeant on duty
found crushed pills in Brown’s clothes. Testing revealed that the pills were Alprazolam, a
schedule IV controlled substance. Respondent State of Minnesota charged Brown with
aiding and abetting first-degree burglary and fifth-degree possession of a controlled
substance.
The case proceeded to trial. C.A. testified on direct-examination that on the night
of the offense, she had been asleep in a chair near the front door when she awoke to the
sound of K.W., her personal-care attendant and C.D.’s girlfriend, screaming. C.A.
recounted that she had heard her son “getting beat up” before she saw Whitebird hitting
C.D. in the back bedroom. She described C.D. as a “bloody mess” and saw blood on the
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comforter and the bedroom wall. C.A. found Brown “digging” in her closet. Brown
proceeded to grab C.A. and slam her against the door. C.A. then punched Brown and
pulled Whitebird off C.D. so that he could “jump up.” C.A. managed to get Whitebird and
Brown out of her home by “[y]elling and pushing them,” and immediately called the police.
On cross-examination, C.A. testified that neither Whitebird nor Brown had
permission to enter her house when “they came busting through the front door,” breaking
the lock. Defense counsel asked C.A. whether she “push[ed] [Whitebird and Brown] out
[of her house] at the same time or [if she] push[ed] one and then [the other].” C.A.
responded that Brown was “pretty much walking himself [be]cause he was cussing and
swearing and saying that he was going to kill [them] and kill the whole family.” Defense
counsel instructed C.A. to only answer the questions he asked her. C.A. explained that the
likely impetus for the incident was that Whitebird and K.W. had been in a relationship
before Whitebird went to prison, at which point K.W. began a relationship with C.D.
On re-direct examination, the prosecutor asked C.A. “what kinds of things” Brown
was saying as he was pushed out the door. C.A. responded that Brown said, “he was going
to kill them. Kill the whole family. Burn [her] house down. Burn [her] daughter’s house
down.” Defense counsel did not object to C.A.’s testimony. C.A. also testified that by the
time she removed Brown and Whitebird from the house, her six-yea r-old granddaughter
had picked up a spatula and a knife.
The defense called one witness, J.V., who lived near the location where the officer
found and arrested Brown. On the morning of the incident, J.V. told the police that Brown
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had left his house at approximately 4:00 a.m. that day. At trial, J.V. could not recall making
this statement, explaining that his later Fentanyl overdose made his mind “pretty foggy.”
During the state’s closing argument, the prosecutor told the jury that C.A. testified
that “Brown was threatening them and told them if they told the cops he would kill them
all.” During the defense’s closing argument, defense counsel primarily attacked C.A.’s
credibility. He suggested that C.A. had lied about the forced entry because she should have
woken up when the men allegedly broke into the house—right next to her chair where she
was sleeping—and that the deputy should have taken pictures of the broken door. And he
stated that there was no evidence that Brown assisted, advised, counseled, or encouraged
Whitebird to assault C.D. The jury found Brown guilty on both counts.
Brown appeals.
DECISION
Brown argues that the prosecutor committed misconduct by eliciting inadmissible
evidence of other crimes or bad acts. Because Brown did not object to any of the
challenged statements at trial, we apply a modified plain-error test. 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.” Id. If Brown shows plain error, “[t]he burden then shifts to the State
to demonstrate that the error did not affect the defendant’s substantial rights.” State v.
Carridine, 812 N.W.2d 130, 146 (Minn. 2012). The state meets this burden if it shows
“that there is no reasonable likelihood that the absence of the misconduct in question would
have had a significant effect on the verdict.” State v. Matthews, 779 N.W.2d 543, 551
(Minn. 2010) (quotation omitted). If the state fails to meet its burden, we consider “whether
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the error should be addressed to ensure fairness and the integrity of the judicial
proceedings.” Id. But we need not decide whether plain error occurred if any error did not
affect the defendant’s substantial rights. See State v. Manley, 664 N.W.2d 275, 283 (Minn.
2003) (noting that while “[n]ormally, we would consider each prong of the plain-error test
in order,” the court is not required to do so when the claimed error did not affect the
defendant’s substantial rights).
Evidence of a person’s other crimes or bad acts is not admissible to prove the
defendant’s character for purposes of showing that he acted in conformity with that
character. Minn. R. Evid. 404(b)(1); State v. Ness, 707 N.W.2d 676, 684 (Minn. 2006)
(referring to evidence of other crimes or bad acts as “Spreigl evidence,” based on State v.
Spreigl, 139 N.W.2d 167, 169 (Minn. 1965) ). But it may be admissible for other limited
purposes. Minn. R. Evid. 404(b)(1). A prosecutor has a duty to prepare their witnesses to
avoid improper testimony. State v. McNeil, 658 N.W.2d 228, 232 (Minn. App. 2003). If
a prosecutor attempts to elicit or elicits inadmissible evidence, they may have engaged in
misconduct. State v. Fields, 730 N.W.2d 777, 782 (Minn. 2007).
Brown asserts that the prosecutor did just that by eliciting Spreigl evidence from
C.A. without satisfying the conditions under Minn. R. Evid. 404(b)(2) (listing requirements
for admitting Spreigl evidence). He contends that his statements that “he was going to kill
them. Kill the whole family. Burn [C.A.’s] house down. Burn [her] daughter’s house
down,” are bad acts because they (1) constitute threats of violence and (2) frightened a six-
year-old witness. See State v. McLeod, 705 N.W.2d 776, 788 (Minn. 2005) (noting Spreigl
evidence encompasses bad acts in general; “the prior bad act need not constitute a crime”).
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The state does not dispute Brown’s contentions, but asserts that Spreigl does not apply
because C.A.’s testimony is admissible as either immediate-episode evidence or as intrinsic
evidence. See State v. Fardan, 773 N.W.2d 303, 315-16 (Minn. 2009) (recognizing the
admissibility of “evidence which relates to offenses that were part of the immediate episode
for which [a] defendant is being tried” (quotation omitted)); State v. Hollins, 765 N.W.2d
125, 131 (Minn. App. 2009) (concluding that “a rule 404(b) analysis is unnecessary if the
evidence of another crime is intrinsic to the crime charged”). And the state argues that the
challenged testimony did not affect Brown’s substantial rights. We agree with the state’s
second argument.
When deciding whether the state has met its burden to demonstrate 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 (quotation
omitted), we consider “(1) the strength of the evidence against the defendant ; (2) the
pervasiveness of the improper conduct; and (3) whether the defendant had an opportunity
(or made efforts) to rebut the prosecutor’s improper suggestions,” State v. Hill, 801 N.W.2d
646, 654-55 (Minn. 2011). Analysis of these considerations convinces us that the state met
its burden.
First, the evidence against Brown is strong. Both C.A. and C.D. identified Brown
in the courtroom and gave the same account of the incident: Whitebird and Brown entered
their home without permission; Whitebird and Brown assaulted C.D. in the back bedroom
of their home; C.A. pulled Whitebird and Brown off C.D.; C.D. sustained an injury to the
back of the head that left blood on his person, on the bed, and on the wall of the back
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bedroom; C.A. pushed Whitebird and Brown out of their home; and afterward, C.A. called
the police. Their testimony was corroborated by the deputy’s testimony and the photos he
took of C.D.’s head injury and the blood in the bedroom.
In contrast, Brown’s alibi witness, J.V.—who initially told police that he was with
Brown at the time of the crime—repeatedly stated that he could not recall the events of
July 28, 2021, and was unsure of when Brown left his home because his later Fentanyl
overdose clouded his memory.
Second, we are not persuaded that the claimed error was pervasive simply because
the state referenced the challenged evidence during re-direct- examination of C.A. and
during closing argument. We first note that it was defense counsel who initially elicited
C.A.’s testimony that Brown was “pretty much walking himself [be]cause he was cussing
and swearing and saying that he was going to kill [them] and kill the whole family.” On
re-direct-examination, the prosecutor asked what kinds of things Brown said , and C.A.
recounted the specifics. While it may have been i mproper for the prosecutor to further
pursue this line of questioning, the jury had already heard C.A. testify to the events of the
burglary, which strengthened the case against Brown. The fact C.A. was the first of seven
witnesses to testify—none of whom were asked about Brown’s threats—further supports a
conclusion that the challenged evidence was not so pervasive as to taint what was otherwise
a fair trial.
Nor are we convinced that the claimed error was pervasive because the prosecutor
misstated C.A.’s testimony in closing argument by stating that C.A. testified that Brown
“told [her] if they told the cops he would kill them all.” We agree that “[a] prosecutor
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commits misconduct by intentionally misstating evidence.” State v. Mayhorn, 720 N.W.2d
776, 788 (Minn. 2006). But we review a prosecutor’s alleged misconduct during a 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).
Although the prosecutor partially misstated C.A.’s testimony, that portion pertained
only to Brown’s motive for making the threats: that he would kill them if they called the
police. The jury was told at the beginning and at the end of trial that the arguments or
remarks of attorneys are not evidence. And w e presume that juries follow the district
court’s instructions. State v. Forcier, 420 N.W.2d 884, 885 n.1 (Minn. 1988). On this
record, we are not persuaded that the prosecutor’s minor departure from the record during
closing argument mandates reversal. See Carridine, 812 N.W.2d at 148 (explaining we
must not give select phrases made during closing argument “undue prominence” (quotation
omitted)).
Third, Brown’s contention that responding to the prosecutor’s misstatement would
have “spotlighted the inadmissible evidence and risked compounding its prejudicial effect”
is unavailing. Brown cites State v. Bartel, No. A19-0022, 2020 WL 614242, at *5 (Minn.
App. Feb. 10, 2020), for the proposition that he had no real opportunity to rebut the
prosecutor’s misstatements because obtaining a curative instruction would have amplified
the effect of the improper statements. Bartel is neither binding nor persuasive. See Minn.
R. Civ. App. P. 136.01, subd. 1(c). In Bartel, we concluded that the state failed to meet its
burden of showing that evidence of Bartel’s involvement in a prior robbery did not affect
his substantial rights because the evidence of his guilt was not overwhelming, the evidence
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was “highly prejudicial,” and the district court’s limiting instruction aggravated the effect
of the improper evidence. 2020 WL 614242, at *5. Bartel is readily distinguishable from
this case.
As noted above, the evidence against Brown is strong . The jury heard consistent
testimony from victims C.A. and C.D. and C.A.’s personal-care attendant regarding the
events in question. Unlike in Bartel, the district court did not highlight the challenged
testimony by giving a limiting instruction. Defense counsel could have but chose not to
point out the prosecutor’s misstatement during the defense closing. Instead, defense
counsel cited C.A.’s challenged testimony as evidence that she was lying when she said
her granddaughter grabbed a knife during the incident.
Finally, Brown argues that the prosecutor’s claimed misconduct was prejudicial
because no limiting instruction was given to the jury. This argument is unavailing, as “the
failure to provide limiting instructions absent a request is not reversible error.” State v.
Williams, 593 N.W.2d 227, 237 (Minn. 1999); see also State v. Johnson, 616 N.W.2d 720,
729 (Minn. 2000) (reasoning that the defendant’s failure to request a limiting instruction
weighed against prejudice). Brown did not request a limiting instruction.
In sum, we conclude on this record that a new trial is not warranted because the
prosecutor’s elicitation of the challenged evidence di d not affect Brown’s substantial
rights.
Affirmed.