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This opinion is nonprecedential except as provided by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
A23-0506

State of Minnesota,
Respondent,

vs.

Cody Shawn Ash,
Appellant.

Filed January 16, 2024
Affirmed
Connolly, Judge

Freeborn County District Court
File No. 24-CR-21-1716

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

David J. Walker, Freeborn County Attorney, Albert Lea, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Julie L oftus Nelson, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Connolly, Presiding Judge; Reyes, Judge; and Reilly,
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NONPRECEDENTIAL OPINION
CONNOLLY, Judge
On appeal from his conviction of second -degree sale of a controlled substance,
appellant argues that (1) the prosecutor committed plain error during closing arguments by
misstating the law on entrapment and shifting the burden of proof, and (2) his counsel was
ineffective when he failed to object to the prosecutor’s misconduct. We affirm.
FACTS
In 2021, law enforcement conducted the following four controlled drug buys
involving a confidential informant (CI) and appellant Cody Ash: on September 9, 2021,
the CI purchased 4.5 grams of cocaine from Ash; on September 21, 2021, the CI purchased
2.2 grams of methamphetamine from Ash; on October 1, 2021, the CI purchased 8.6 grams
of methamphetamine from Ash; and on October 20, 2021, the CI arranged to buy 18 grams
of cocaine from Ash. Although the CI arranged to buy the 18 grams of cocaine from Ash,
the actual sale was handled by another individual and the amount purchased was 13.1
grams.
Respondent State of Minnesota charged Ash with one count of first -degree sale of
a controlled substance, and one count of second-degree sale of a controlled substance. Ash
subsequently filed notice of his intent to assert an entrapment defense pursuant to Minn. R.
Crim. P. 9.02, subd. 1(6), claiming that he “would not have participated in the charged
offense[s] but for the actions of [the CI].” The state responded by moving to preclude Ash
from raising or presenting the entrapment defense to the jury.
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The district court stated that it could not “determine if the ‘fair preponderance of the
evidence’ standard has been met” and, therefore, it would “permit [Ash] to address the
entrapment issue in his opening statement and during questioning of the State’s w itnesses
as he determines is necessary to meet his burden.” The district court concluded that it
would “reserve the issue of what evidence the State can use to meet its burden of proof, if
necessary, until the Court has sufficient time to review the proposed evidence.” The district
court later clarified on the record before trial that it was allowing the entrapment defense
“to be raised. If [Ash] meets the burden, then the burden shifts, and the State has to meet
it by proof beyond a reasonable doubt.”
At trial, the state presented evidence related to the controlled buys involving Ash
and the CI. Ash testified in his defense and claimed that, in September 2021, the CI
approached him about buying drugs through his cousin. According to Ash, he respond ed
by telling the CI that he did not want to get involved because it was “not [his] business.”
But Ash claimed that, after several days of being harassed by the CI, he finally agreed to
contact his cousin on the CI’s behalf. Ash also claimed that he finally relented because the
CI kept “telling me it was important,” and because the CI was helping fix his car. Ash
further testified that he ended up selling the CI the drugs because his “cousin never wanted
to deal with [the CI].” And Ash claimed that the CI pressured him to sell the drugs involved
in the prior transactions as well.
At the close of evidence, the district court
determined that, based on the evidence presented at trial, the
defense has at least raised the [entrapment] issue sufficiently
to permit it to go to the jury. By that finding, I’m not making
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a ruling on whether or not the defense has - - is sufficient to
lead to a “not guilty” finding; I’m simply saying it is an
appropriate question to give to the jury.

The district court then instructed the jury on the entrapment defense.
The jury found Ash guilty of second -degree sale of a controlled substance, but not
guilty of first-degree sale of a controlled substance. Ash was then sentenced to 98 months
in prison. This appeal follows.
DECISION
I.
Ash argues that the prosecutor committed misconduct during closing and rebuttal
arguments by misstating the law on entrapment and shifting the burden of proof. But
appellant did not object to the prosecutor’s arguments at trial. This court re views claims
of unobjected -to prosecutorial misconduct using a modified plain -error test. State v.
McDaniel, 777 N.W.2d 739, 749 (Minn. 2010). Under the modified plain -error test, an
appellant must show that there was an error that was plain. State v. Ramey, 721 N.W.2d
294, 302 (Minn. 2006). A plain error is one that is “clear or obvious.” Id. at 302. Once
such an error is established, the burden then shifts to the state to show t he plain error did
not affect appellant ’s substantial rights. Id. “An error affects a defendant ’s substantial
rights if there is a reasonable likelihood that the error actually impacted the verdict.”
McDaniel, 777 N.W.2d at 749. If we determine that a plain error affected the defendant’s
substantial rights, then we must assess “whether the error should be addressed to ensure
fairness and the integrity of the judicial proceedings.” Ramey, 721 N.W.2d at 302.
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Prosecutors 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). They
have “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.
But a prosecutor may not misstate the law. State v. Strommen, 648 N.W.2d 681, 689 (Minn.
2002). Comments that misstate or dilute the state ’s burden of proof are “highly improper
and con stitute[] prosecutorial misconduct.” McDaniel, 777 N.W.2d at 750 (quotation
omitted). In determining whether a prosecutor misstated the law, this court reviews their
arguments “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).
Ash asserted the affirmative defense of entrapment . A defendant asserting such a
defense must “establish by a fair preponderance of the e vidence that the state induced the
defendant to commit the offense by improper pressure, badgering, or persuasion.” State v.
Bauer, 776 N.W.2d 462, 470 (Minn. App. 2009), aff’d, 792 N.W.2d 825 (Minn. 2011). It
is not enough that the state merely solicite d or provided an opportunity for the defendant
to commit the crime. State v. Olkon, 299 N.W.2d 89, 107 (Minn. 1980). If the defendant
establishes that he was induced to commit the crime, the “burden shifts to the state to prove
beyond a reasonable doubt that the defendant was predisposed to commit the offense.”
Bauer, 776 N.W.2d at 470 ; see also State v. Vaughn , 361 N.W .2d 54, 57 (Minn. 1985 ).
“Predisposition may be established by (1): the defendant’s active solicitation to commit the
crime; (2) the defendant’s prior criminal convictions; (3) the defendant’s prior criminal
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activity not resulting in a conviction; (4) the defendant’s criminal reputation; or (5) any
other adequate means.” State v. Johnson, 511 N.W.2d 753, 755 (Minn. App. 1994) , rev.
denied (Minn. Apr. 19, 1994).
Here, t he district court instructed the jury on entrapment using the model jury
instruction. The prosecutor then argued at length during closing and rebuttal arguments
that Ash was not coerced, persuaded, or induced into committing the alleged offenses.
Ash contends that the prosecutor’s argument misstated the law and shifted the
burden of proof to Ash because Ash had already met his burden of production on the first
prong of the entrapment analysis —that the state induced Ash to commit the offense. In
other words, Ash argues that because the “district court ru led that Ash had satisfied his
burden of production by a preponderance of the evidence that [the CI] had induced him
into selling drugs,” the burden then “shifted to the state to prove beyond a reasonable doubt
that Ash was predisposed to selling drugs prior to being approached by [the CI].” But Ash
contends that instead of focusing on the predisposition prong of the entrapment analysis
during closing arguments, the prosecutor improperly focused on the inducement prong of
the analysis. Thus, Ash contends that the prosecutor’s closing and rebuttal arguments
constituted plain error.
Ash’s argument relies on the premise that, by instructing the jury on the defense of
entrapment, the district court implicitly found that Ash had met his burden of production
on the inducement prong of the entrapment analysis. But this argument was rejected in
Bauer. See 776 N.W.2d at 470. In that case, this court noted that “‘[a] party is entitled to
an instruction on his theory of the case if there is evidence to support it. ’” Id. (quoting
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State v. Ruud , 259 N.W.2d 567, 578 (Minn. 1977)). The court then stated: “[t]hat the
district court instructed the jury on [the defendant’s] entrapment theory does not establish
that the evidence is of sufficient weight to meet [the defe ndant’s] burden of proof on the
inducement element. Rather, it merely indicates that some evidence exists in support of
inducement.” Id.
Here, as in Bauer, the fact that the district court gave the entrapment instruction
does not establish that Ash had satisfied his burden of proof on the inducement element; it
simply means that there was some evidence to support the inducement element. See id.
And the district court never found that the inducement element had been satisfied.
Consequently, the state was free to argue to the jury that Ash was not induced into
committing the alleged offenses. In fact, this court in Bauer specifically recognized that
“[a] prosecutor may properly argue that a CI’s conduct did not constitute entrapment when,
as here, an entrapment defense is raised.” Id. at 437.
In his reply brief, Ash argues that Bauer is not dispositive because, unlike the jury
instruction in that case, “the instruction given to the jury in this case . . . said that the jury
should decide only the sec ond element of entrapment.” We disagree. Nowhere does the
jury instruction state that the jury should decide only the predisposition element. Rather,
the instruction provided to the jury begins by stating that
[a] person is entrapped when he commits an act or engages in
conduct otherwise criminal if the criminal design does not
originate with the person, but is conceived in the mind of a
government agent, and the person is . . . by coercion,
persuasion, deceitful representation or inducement, lured into
committing an act . . . the person otherwise could not have
committed.
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This language indicates that the inducement question was presented to the jury for it to
decide. The instruction discusses the second prong of the entrapment analysis and states
that the “State must prove beyond a reasonable doubt that the defendant had the ready
willingness to commit the act.” As such, Ash’s attempt to distinguish Bauer from this case
fails.1
Ash further argues that the prosecutor committed plain error by providing the jury
with the wrong definition of “inducement” as it relates to entrapment, and by asserting that
the CI’s repeated attempts to convince Ash to sell him drugs did not amount to persuasion.
These arguments are unpersuasive. As to the element of inducement, “the evidence must
show that the state did something more than merely solicit the commission of a crime” —
conduct more akin to “persuasion, badgering, or pressure” must occur. Olkon, 299 N.W.2d
at 107. Merely supplying a defendant with the opportunity to commit a crime is not enough
to establish that the government actor induced the crime. Vaughn, 361 N.W.2d at 57.
In his closing argument, the prosecutor argued that the CI wa s not “deceitful,” did
not threaten Ash, and did not coerce him. He also argued that the CI’s repeated requests
did not amount to persuasion because “[r]epeating the question is not persuasion . . ., it is

1 Ash also argues in his reply brief that “if [the state] is correct and the jury is supposed to
decide both prongs of the entrapment defense, then the jury instruction is erroneous.” But
a “reply brief must be confined to new matters raised in the brief of the respondent.” Minn.
R. Civ. App. P. 128.02, subd. 3. If an argument is raised in a reply brief but not raised in
an appellant ’s main brief , and it exceeds the scope of the respondent ’s brief, it is not
properly before this court and may be stricken f rom the reply brief. Berg v. State , 557
N.W.2d 593, 596 (Minn. App. 1996). Because Ash’s challenge to the jury instruction was
made for the first time in his reply brief, the argument is not properly before us.
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just repetition” and does not amount to persuasio n. The prosecutor’s argument that the
CI’s conduct did not amount to persuasion is not a misstatement of the law. Rather, it was
a factual argument that, under the evidence presented at trial, the CI’s conduct does not fit
within the purview of “badgerin g or pressure” because the CI was merely supplying Ash
with the opportunity to commit the offense.
Similarly, the prosecutor’s statement to the jury that “[i]nducement could be
something like offering to pay extra money” was not erroneous. Rather, when read in the
context of the prosecutor’s closing argument as a whole, the prosecutor was explaining that
the CI was not attempting to induce Ash to purchase the drugs by offering more money
than “market value.” Instead, the prosecutor argued that the CI was attempting to negotiate
a reasonable purchase price for the drugs. In other words, the prosecutor was arguing that,
under the facts of the case, the CI’s conduct did not amount to improper inducement.
Because the jury was the finder of fact in decidin g whether Ash was entrapped, the
prosecutor’s arguments relating to the facts of the case were not improper. Ash, therefore,
cannot show that the prosecutor’s statements during closing and rebuttal arguments are
inconsistent with the law.
In sum, this court’s analysis in Bauer, when applied to this case, demonstrates that
the prosecutor did not shift the burden of proof in his closing and rebuttal arguments. And
the prosecutor’s closing and rebuttal arguments, when read as a whole, did not misstate the
law. Ash, therefore, cannot establish error, much less plain error. See Ramey, 721 N.W.2d
at 302 (stating that an error is plain if it “contravenes case law, a rule, or a standard of
conduct”).
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II.
Ash also contends that he was denied the effective assistance of counsel because his
trial counsel failed to object to the prosecutor’s closing and rebuttal arguments. We analyze
a claim of ineffective assistance of counsel under the two-prong test set forth in Strickland
v. Washington, 466 U.S. 668, 687 (1984). Peltier v. State, 946 N.W.2d 369, 372 (Minn.
2020). To prevail on a claim of ineffective assistance of counsel, the appellant must show
that (1) “counsel’s performance fell below an objective standard of reasonableness”; and
(2) “there was a reas onable probability that, but for counsel ’s errors, the result of the
proceedings would have been different.” Id. (quotation omitted) (relying on Strickland,
466 U.S. at 694). “Application of the Strickland test involves a mixed question of law and
fact, which we review de novo.” State v. Mouelle , 922 N.W.2d 706, 715 (Minn. 2019) .
We need not address both prongs of the test if one prong is determinative. Id.
Here, Ash is unable to satisfy the first prong of the Strickland test. As addressed
above, the prosecutor did not misstate the law or shift the burden of proof in his closing
arguments. As such, Ash’s trial counsel’s failure to object to the closing arguments was
not objectively unreasonable. Moreover, “[d]ecisions about objections at trial are matters
of trial strategy.” Leake v. State , 737 N.W.2d 531, 542 (Minn. 2007). Appellate courts
generally do not review for competence the decisions of counsel that are based on trial
strategy. State v. Bobo, 770 N.W.2d 129, 138 (Minn. 2009). Because Ash’s ineffective-
assistance-of-counsel argument relates to counsel’s failure to object, it is a matter of trial

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strategy that is not reviewable. Therefore, Ash cannot establish that he was denied the
effective assistance of counsel.
Affirmed.