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This opinion is nonprecedential except as provided by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
A23-1196

State of Minnesota,
Respondent,

vs.

Janelle Lorraine Johnson,
Appellant.

Filed July 15, 2024
Affirmed
Kirk, Judge *

Beltrami County District Court
File No. 04-CR-20-3462

Keith Ellison, Attorney General, Thomas R. Ragatz, Assistant Attorney General, St. Paul,
Minnesota; and

David Hanson, Beltrami County Attorney, Bemidji, Minnesota (for respondent)

Daniel J. Koewler, Charles A. Ramsay, Ramsay Law Firm, P.L.L.C., Roseville, Minnesota
(for appellant)

Considered and decided by Bratvold , Presiding Judge; Larkin, Judge; and
Kirk, 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NONPRECEDENTIAL OPINION
KIRK, Judge
Appellant challenges her conviction for second -degree intentional murder, arguing
that the prosecutor committed misconduct by misstating the law regarding the presumption
of innocence during closing arguments, that the district court erred by answering a jury
question outside of her presence, and that the cumulative effect of these errors deprived her
of a fair trial. Because the prosecutor did not err and the district court’s error was harmless,
we affirm.
FACTS
Respondent State of Minnesota charged appellant Janelle Lorraine Johnson with
second-degree intentional murder in violation of Minn. Stat. § 609.19, subd. 1(1) (2020)
for causing the death of her brother-in-law. The matter p roceeded to a jury trial. The facts
elicited at trial are as follows.
On December 25, 2020, Johnson hosted a family gathering that J.F.—Johnson’s
sister and the victim’s wife—attended. The victim was not invited to Johnson’s gathering.
During the family gathering, Johnson was drinking “[a] lot.”
J.F. returned to Johnson’s home shortly after going home for the night. When asked
why she came back to Johnson’s house, J.F. said that nothing happened and that she just
wanted to go to bed. A family member recalled J.F. stating that J.F. “got into it” with the
victim and “had to push her way out of the door and grab her keys and go.” J.F.’s family
members were aware of issues with J.F. and the victim’s marriage, including physical
abuse.
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Johnson told J.F. that Johnson and her husband, A.J., were going to go to J.F.’s
home. J.F. suspected that Johnson and A.J. took a firearm with them because Johnson told
A.J., “upstairs” and “top drawer.” Johnson had experience shooting weapons, including a
357-caliber revolver. Johnson and A.J. went to J.F.’s home and returned about an hour
later. Johnson and A.J. went upstairs. A.J. put the firearm away and Johnson grabbed a
glass of alcohol.
A family member testified that Johnson said that she shot the victim. Johnson told
her family that Johnson and A.J. spoke with the victim outside. A.J. and the victim argued,
and the victim pushed A.J. Johnson tried to intervene, was pushed down, jumped back up,
grabbed the gun from A.J.’s side pocket, and shot the victim.
Just after midnight on December 26, Johnson called a non- emergency line of the
sheriff’s office and told the dispatcher that she shot at the victim and that the victim was
possibly injured. The dispatcher sent officers to Johnson’s location and officers and
medical personnel to the victim’s location. When officers arrived at Johnson’s location,
she told officers that she had shot at the victim and turned herself in because of that. One
officer observed that Johnson appeared intoxicated.
Officers interviewed Johnson and A.J. at the law enforcement center. When officers
first tried to interview Johnson around 4:45 a.m. on December 26, “it was apparent that she
was under the influence of alcohol.” Johnson confirmed that she drank alcohol around the
time she contacted law enforcement. Officers returned to interview Johnson at around
11:30 a.m. Johnson told the officers that she grabbed A.J.’s gun and shot the victim three
times.
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When officers arrived at the victim’s location, they observed victim’s body outsid e
about 25- 30 yards away from the home. The medical examiner testified t hat the victim
suffered three gunshot wounds, that the victim’s cause of death was “gunshot wounds of
trunk,” and the manner of death was homicide. Officers recovered a 357 -caliber revolver
and ammunition from Johnson’s home. Bullets recovered from the s cene and from the
victim’s body were fired from the 357-caliber revolver recovered from Johnson’s home.
Johnson testified in support of her defense. Johnson estimated that she began
drinking around noon on December 25 and continued through the evening. Johnson asked
A.J. to come with her to talk to the victim because she had been drinking. Johnson recalled
that she initially spoke with the victim in the kitchen. When the conversation became more
“verbally abusive,” Johnson, A.J., and the victim went outside. A.J. and Johnson “got
pushed down.” Johnson testified that she got up and started walking toward her car, heard
“loud noises,” turned to yell, and saw A.J. walking toward the truck. They then went home.
Johnson specified that she only recalled hearing two shots. Johnson testified that she did
not bring a gun, but that A.J. did. Johnson denied shooting the victim or the gun. Johnson
testified that “[A.J.] shot [the victim].” She testified that she lied about who shot the victim
to protect her husband, and that she was telling the truth at trial because her family and the
community needed to know what happened, because of her religious beliefs, and to set an
example. On cross-examination, Johnson agreed that she lied to her family members about
what happened but had no reason to do so.
The jury found Johnson guilty of second -degree intentional murder. The district
court convicted Johnson and sentenced her to 343 months’ imprisonment.
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Johnson appeals.
DECISION
Johnson asserts that the prosecutor committed misconduct by misstating the law
during closing arguments, that the district court erred by answering a jury question outside
of her presence, and that the cumulative effect of these errors deprived her of a fair trial.
We address each argument in turn.
I. The prosecutor did not commit plain-error prosecutorial misconduct .

Johnson argues that the prosecutor committed plain- error prosecutorial misconduct
by asserting in closing arguments that she was no longer entitl ed to the presumption of
innocence. “ It is axiomatic that criminal defendants are presumed innocent until proven
guilty beyond a reasonable doubt .” State v. Portillo , 998 N.W.2d 242, 248- 49 (Minn.
2023). And a defendant “has the right to have the jury t ake the presumption of innocence
to the jury room with them.” Id. at 249 (quotation omitted).
Because Johnson did not object to the prosecutor’s statement, we “apply the
modified plain-error test .” Id. at 248 (quotation omitted). Under that test, Johns on “has
the burden to demonstrate that the misconduct constitutes (1) error, (2) that was plain.” Id.
(quotation omitted). If Johnson establishes plain error, “the burden then shifts to the State
to demonstrate that the error did not affect [her] substantial rights.” Id. (quotation omitted).
We then evaluate “whether the error should be addressed to ensure fairness and the integrity
of the judicial proceedings.” Id. (quotation omitted).
Johnson cites a recent supreme court decision, Portillo, 998 N.W.2d 242, to support
her assertion of misconduct. In Portillo , the supreme court held that a prosecutor
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committed plain-error misconduct when the prosecutor “said on three separate occasions
during the closing-argument rebuttal that [the defendant] had already lost the presumption
of innocence.” Id. at 249. Specifically, the prosecutor stated that:
He no longer has that presumption. You’ve heard all of
the evidence. You’ve heard all of the state ’s case against [the
defendant] . He no longer has that presumption of innocence .
He has been proven guilty beyond a re asonable doubt. We’ve
gone through those elements. You’ll be able to talk and
consider each other ’s thoughts and the information you heard
throughout the course of the case, but he no longer has that
presumption of innocence.

Id. The supreme court reasoned that a “defendant is only proven guilty beyond a reasonable
doubt,” “when the jury has deliberated and reached that conclusion, not before.” Id. at 250.
Thus, the suggestion that the defendant was not entitled to the presumption at the time of
closing arguments was a misstatement of the law. Id at 250-51.
In his closing argument, the prosecutor here stated:
Now, for her actions in shooting [the victim], [Johnson
is] charged with Second Degree Intentional Murder. And as the
Judge instructed you, and as we talked about in jury selection,
she is presumed innocent of those charges. But that
presumption only remains with her until the State has proven
the essential elements by proof beyond a reasonable doubt.
Once the essential elements are proven, that presumption goes
away and you must find her guilty.

Unlike in Portillo , the prosecutor did not assert that Johnson was not entitled to the
presumption at the time of closing arguments. Id. at 249. Instead, the prosecutor stated
that “she is presumed innocent of those charges,” but that the presumption does not remain
when the state proves the essential elements beyond a reasonable doubt. Thi s is a correct
statement of the law. We also note that the prosecutor later repeated that Johnson “is
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presumed innocent of these charges.” Reviewing the closing argument as a whole, the
prosecutor did not assert that Johnson was no longer entitled to the presumption of
innocence at the time of the prosecutor’s closing argument. Id. at 250; see also State v.
Johnson, 616 N.W.2d 720, 728 (Minn. 2000) (explaining that we “ consider the closing
argument as a whole rather than focus on particular phrases or re marks that may be taken
out of context or given undue prominence” when reviewing prosecutorial-miscond uct
claims (quotation omitted) ).
Because the prosecutor did not err in his statement of the law regarding the
presumption of innocence, we need not address the remaining prongs of modified
plain-error review. State v. Epps, 964 N.W.2d 419, 423 (Minn. 2021) (stating that we may
end our analysis on “ a negative answer to any one of the three parts of the plain error
doctrine”).
II. The district court err oneously responded to a jury question outside of
Johnson’s presence, but this error was harmless.
Johnson argues that the district court erred by answering a jury question outside of
her presence. A district court violates a defendant’s right to be present at trial by
communicating with the jury during deliberations without the defendant. See State v .
Sessions, 621 N.W.2d 751, 755-56 (Minn. 2001) (stating that “the general rule is that a trial
court judge should have no communication with the jury after deliberations begin unless
that communication is in open court and in the defendant’s presence” and concluding that
the district court violated the defendant’s right to be present by responding to a jury
question in the defendant’s absence). And a district court must respond to jury questions
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in the courtroom. Minn. R. Crim. P. 26.03, subd. 20(3); see also Sessions, 621 N.W.2d at
756 (concluding that the district court violated the Minnesota Rules of Criminal Procedure
by responding to the jury in writing outside of open court).
During deliberations, the jury sent a note to the district court asking, “Regarding the
third element, could it be proven beyond a reasonable doubt that the defendant has acted
with the intent to effect the death of a person who died by gunshot if it is not clear as to
who pulled the trigge r?” The district court met with counsel in chambers. Counsel for
both parties and the district court agreed on a response.1 The district court then wrote back
to the jury, “The Court would refer you back to the instructions you have been provided.”
Because the district court responded to the jury’s question in writing and outside of
Johnson’s presence, the district court’s communication to the jury was erroneous.
But Johnson is only entitled to a new trial if she shows that there is a reasonable
likelihood that this error affected her substantial rights. See State v. Matthews, 800 N.W.2d
629, 633-34 (Minn. 2011) (describing harmless -error and plain -error review); Sessions,
621 N.W.2d at 756 (applying harmless-error review to an improper jury communication). 2
An error affects substantial rights when “t here is a reasonable likelihood that the error

1 A defendant may waive their right to be present at trial, and the waiver need not be
explicit. State v. Martin, 723 N.W.2d 613, 619- 21 (Minn. 2006). Because the record is
unclear as to whether Johnson waived her right, we do not consider the right waived.

2 The parties suggest that the asserted error may be subjected to plain-error review, but we
need not specify whether we are applying harmless-error or plain-error review here because
both frameworks ask whether a defendant’s substantial rights were affected, and we
ultimately conclude that Johnson’s were not. Matthews, 800 N.W.2d at 634 (“[T]he third
prong of the plain error test is the equivalent of a harmless error analysis .”).
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substantially affected the verdict. ” Matthews, 800 N.W.2d at 634 (quotation omitted).
“When considering whether the erroneous exclusion of a defe ndant from judge -jury
communications constitutes harmless error, we consider the strength of the evidence . . .
and substance of the judge’s response.” Sessions, 621 N.W.2d at 756.
In this case, we are particularly persuaded that there is no reasonable likelihood that
Johnson’s substantial rights were affected based on the substance of the district court’s
response to the jury question. In response to the jury’s question, the district court referred
the jury back to the jury instructions consistent with Minn. R. Crim. P. 26.03, subd.
20(3)(b), which provides that the district court “may reread portions of the original
instructions.” And the response did not contain new information or favor either party. See
Sessions, 621 N.W.2d at 756-57 (noting that “[t]he court did not issue any new instructions
in its responses, and the instruction repeated did not favor the prosecution or defense ”).
Johnson asserts that the judge’s response was improper because the jury asked a fact
question, which the distric t court should have answered by advising the jury that “it was
their duty to determine, beyond a reasonable doubt, ‘who pulled the trigger.’” But the jury
did not ask “who” pulled the trigger. Rather, the jury asked whether it could find that
Johnson int ended to affect the victim’s death if they could not decide who had shot the
firearm. This is a question of law. Cf. State v. Colvin, 645 N.W.2d 449, 452 (Minn. 2002)
(analyzing whether the state could prove an element of a charge in a particular way de novo
because the construction of a criminal statute is a question of law).
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Because Johnson did not show a reasonable likelihood that the district court’s error
in communicating with the jury outside of her presence affected her substantial rights, she
is not entitled to a new trial on this error.
III. Johnson did not establish cumulative error.
Johnson argues that the cumulative effect of the prosecutorial -misconduct and
jury-instruction errors was to deny her a fair trial because the state’s case was weak, and
the jury notes indicate that it struggled reach a verdict. Because Johnson has only
established one error, her claim for cumulative error fails. See State v. Fraga, 898 N.W.2d
263, 278 (Minn. 2017) (stating a defendant may be entitled to a new trial “in rare cases
where the errors, when taken cumulatively, have the effect of denying the appellant a fair
trial” (quotation omitted) (emphasis added)).
Affirmed.