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This opinion is nonprecedential except as provided by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
A23-1572

State of Minnesota,
Respondent,

vs.

Ricardo Marlon Curtis,
Appellant.

Filed September 16, 2024
Affirmed
Larson, Judge

Stearns County District Court
File No. 73-CR-23-1309

Keith Ellison, Attorney General, Peter Magnuson, Assistant Attorney General, St. Paul,
Minnesota; and

Janelle Kendall, Stearns County Attorney, St. Cloud, Minnesota (for respondent)

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

Considered and decided by Larson, Presiding Judge; Segal , Chief Judge; and
Klaphake, Judge.
∗

∗ Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
2
NONPRECEDENTIAL OPINION
LARSON, Judge
Appellant Ricardo Marlon Curtis challenges his conviction for felony domestic
assault, arguing: (1) the district court plainly erred when it offered an improper jury
instruction on the jurors’ ability to review audio/video exhibits outside the jury room;
(2) the district court plainly erred when it offered a pattern jury instruction on the elements
of self-defense; and (3) the state plainly erred when it committed prosecutorial misconduct
during closing argument. We affirm.
FACTS
In February 2023, respondent State of Minnesota charged Curtis with felony
domestic assault pursuant to Minn. Stat. § 609.2242, subd. 4 (2022), 1 arising from an
altercation between Curtis and his mother , D.W., inside a St. Cloud apartment. In May
2023, the case proceeded to a jury trial where D.W., D.W.’s friend, and two St. Cloud
police officers each testified. The witnesses testified to the following facts.
On February 12, 2023, Curtis stayed at D.W.’s apartment. Earlier in the day, Curtis
smoked methamphetamine that D.W. gave him. D.W. had a history of heroin addiction
and used heroin that morning. She had an appointment at a methadone clinic the next day.

1 Under Minn. Stat. § 609.2242, subd. 1 (2022), an assault occurs when a person, “against
a family or household member[,] . . . commits an act with intent to cause fear in another of
immediate bodily harm or death . . . [or] intentionally inflicts or attempts to inflict bodily
harm upon another.” Under the statute, a defendant is guilty of a felony when they violate
subdivision 1 “within ten years of the first of any combination of two or more previous
qualified domestic violence-related offense convictions . . . and may be sentenced to
imprisonment for not more than five years.” Id., subd. 4 (2022). At the beginning of trial,
Curtis stipulated to having two prior qualifying convictions.
3
Prior to the incident, D.W. did not feel “heavily impaired” and could “understand what was
going on.” After smoking the methamphetamine, Curtis left the apartment a couple of
times before returning that evening.
Eventually, Curtis started arguing with D.W. while she was in the shower. He said
D.W. gave him fake methamphetamine. 2 When D.W. exited the shower, Curtis followed
her into her bedroom and yelled that D.W. was trying to poison and kill him. Once D.W.
got dressed, Curtis put “his arm under [her] neck and [held her to] the wall.” Curtis
continued accusing D.W. of trying to poison and kill him, saying that D.W. knew “what
[she] did.” D.W. yelled as loud as she could to get Curtis to stop. She estimated that Curtis
pinned her against the wall for ten minutes.
D.W.’s friend lived in the same building directly below D.W. D.W.’s friend
testified that, on the night of the incident, she heard D.W. yell “[h]elp me” and a male voice
yell “[s]hut the f-ck up.”
When Curtis stopped holding D.W. to the wall, he continued to follow and smack
her in the face. Then both Curtis and D.W. went into Curtis’s bedroom where Curtis told
D.W. that she would sleep with him that night. D.W. intended to call 911 but did not have
access to her phone. Curtis prevented D.W. from leaving by using butcher knives to
barricade the front door. Eventually, D.W. fell asleep in the living room. When she awoke,
she remained frightened and tried to quietly remove the knives that Curtis had lodged in

2 To D.W.’s knowledge, the methamphetamine was real and was not laced with any other
controlled substances.
4
the door. She retrieved her phone from Curtis before she left the apartment for her
methadone appointment.
After D.W. attended her appointment, she called the police from a gas station across
the street from her apartment. Two St. Cloud police officers responded. The first officer
interviewed D.W. at the gas station. D.W. gave a statement consistent with her trial
testimony. While D.W. gave her statement, Curtis approached. Curtis told the first officer
that D.W. had tried to poison and kill him. At trial, the first officer testified that Curtis
seemed “very paranoid.” The state played a video of the first officer’s interaction with
Curtis from the officer’s body-worn camera. The video was consistent with the first
officer’s testimony.
When the second officer arrived at the gas station, he detained Curtis and placed
him in the back of his vehicle. The second officer then took a Mirandized, recorded
statement from Curtis. During his statement, Curtis mentioned contacting a dealer who
said D.W. did not give Curtis methamphetamine. At trial, the second officer described
Curtis as “sweating profusely” and “scattered.” The state played an audio recording of
Curtis’s statement that was consistent with the second officer’s testimony.
After the state and Curtis rested their cases, the district court proceeded to instruct
the jury before closing arguments. The district court emphasized that “[a]ttorneys are
officers of the Court. It is their duty to make objections they think proper and to argue
their client’s cause. However, the arguments or other remarks of an attorney are not
evidence.” The district court also instructed the jury that if an attorney made “any
5
statement of the law that differ[ed] from the law [the district court provided], disregard the
statement.”
In addition, the district court explained that Curtis was claiming self- defense. The
jury instructions provided:
No crime is committed when a person uses reasonable force to
resist an offense against the person if such an offense was being
committed or the person reasonably believed that [it] was.

An offense against the person means an offense of a
physical nature with the potential to cause bodily harm. Bodily
harm means physical pain or injury, illness, or any impairment
of physical condition. It is lawful for a person who is resisting
an offense against his person and who has reasonable grounds
to believe that bodily injury is about to be inflicted to defend
from an attack.

The district court also instructed the jury on the presumption of innocence, stating the
“presumption remains with the defendant unless and until the defendant has been proven
guilty beyond a reasonable doubt.”
The parties then delivered their closing arguments. The state made a series of
statements that Curtis challenges on appeal. First, during rebuttal, the state said:
At the beginning of this trial, [Curtis] is presumed innocent.
[Defense counsel] is right. I have the burden to prove beyond
a reasonable doubt that [Curtis] is guilty. We agree on that.
There is no question about it. But the fact of the matter is, you
now have the evidence. The evidence has been presented to
you. The presumption of innocence is not permanent.

Second, the state made a series of “we” statements throughout its argument,
including:
• “[I]f we believe [D.W. ] when she said [Curtis inflicted
bodily harm against her], then he is guilty.”
6
• Describing the domestic assault elements as “very
straightforward. I think we can agree on that.”

• “We got to know [D.W.] a little bit. This is . . . a case where
nobody is perfect.”

• “[W]e can safely infer that the male voice [ D.W.’s friend
heard] saying ‘Shut the f-ck up,’ [was] Mr. Curtis,” and
because D.W.’s friend has impaired hearing, “we can infer
Mr. Curtis [was] yelling it loudly.”

• “To understand whether we ruled out a possibility of
innocence, we can begin by imagining what a [possibility]
of innocence would look like. More specifically, what we
would have to believe in order to agree that there is
reasonable doubt.”

• “We have all these circumstance[ s] supporting a guilty
verdict.”

After closing arguments, the district court instructed the jury about deliberation.
The district court stated: “While you will have certain exhibits with you in the exhibit
room, it is not feasible to send the audio/video exhibits to the jury deliberation room,
because we don’t have equipment to allow you to play those exhibits in the jury room.” In
its instructions to the jury on interacting with jury attendants, the district court stated: “You
may talk with jury attendants about scheduling. . . . [B]ut you may not discuss the evidence,
these instructions, or other substantive issues [with them].”
After deliberations, the jury returned a guilty verdict. The district court convicted
Curtis and sentenced him to 24 months in prison. Curtis appeals.
DECISION
Curtis raises three challenges to his felony domestic-assault conviction: (1) the
district court offered an improper jury instruction regarding access to audio/video exhibits;
7
(2) the district court erroneously offered the standard jury instruction on the elements of
self-defense; and (3) the state committed prosecutorial misconduct during closing
argument. Because Curtis did not object to these alleged errors at trial, we review for plain
error. See State v. Milton, 821 N.W.2d 789, 805 (Minn. 2012) (jury instructions); State v.
Ramey, 721 N.W.2d 294, 302 (Minn. 2006) (prosecutorial misconduct). 3
A district court commits plain error when there was “(1) [an] error; (2) that is plain;
and (3) the error . . . affect[s] substantial rights.” State v. Griller, 583 N.W.2d 736, 740
(Minn. 1998). “An error is plain if it is clear or obvious,” usually when the district court
contravened “case law, a rule, or a standard of conduct.” State v. Sontoya, 788 N.W.2d
868, 872 (Minn. 2010) (quotation omitted). Plain error affects substantial rights when it is
“prejudicial” and impacts “the outcome of the case.” Id. If an appellant demonstrates plain
error that affects substantial rights, we then determine whether to “address the error to
ensure fairness and the integrity of the judicial proceedings.” Bernhardt v. State, 684
N.W.2d 465, 475 (Minn. 2004) (quotation omitted).
I.
Curtis challenges the district court’s instructions—or lack thereof—regarding
access to the audio/video exhibits. Specifically, Curtis challenges the district court’s
“infeasibility instruction”—“[w]hile you will have certain exhibits with you in the exhibit
room, it is not feasible to send the audio/video exhibits to the jury deliberation room,
because we don’t have equipment to allow you to play those exhibits in the jury room.”

3 As described in part III, a modified plain-error standard applies to prosecutorial
misconduct. See Ramey, 721 N.W.2d at 302.
8
Under Minn. R. Crim. P. 26.03, subd. 20(1):
Except as provided in this rule, the [district] court must permit
received exhibits or copies into the jury room including audio
or video exhibits. The [district] court may exclude audio or
video exhibits from the jury room . . . if the [district] court
determines that allowing the exhibits into the jury room is not
feasible . . . .

In addition, a district “court may allow the jury to review specific evidence” that is not in
the jury room. Id., subd. 20(2). “[J]ury review of . . . audio or video exhibits not permitted
in the jury room . . . must occur in open court.” Id., subd. 20(2)(b).
Curtis first argues the district court’s use of the infeasibility instruction constituted
plain error because the district court did not expand the instruction and explain that the jury
could ask to review the audio/video exhibits in open court (“review-in-open-court
instruction”). In other words, Curtis makes the novel argument that a review-in-open-court
instruction must accompany an infeasibility instruction. But there is no legal authority
requiring the district court to give a review-in-open-court instruction. See State v. Lutz,
No. A23-1668, 2024 WL 3755942, at *4 n.2 (Minn. App. Aug. 12, 2024) (describing the
same argument as “novel”). 4 And on plain-error review, we only correct errors that are
“clear or obvious.” Sontoya, 788 N.W.2d at 872. Because there is no precedent requiring
a review -in-open-court instruction, we cannot conclude the district court plainly erred
when it failed to give that instruction. State v. Webster, 894 N.W.2d 782, 787 (Minn. 2017)

4 This case is nonprecedential and, therefore, not binding. We cite nonprecedential cases
for persuasive authority only. See Minn. R. Civ. App. P. 136.01, subd. 1(c).
9
(concluding district court did not plainly err when it gave an instruction that did not
contravene existing caselaw).
Second, Curtis argues the district court plainly erred when it gave the infeasibility
instruction coupled with the “jury-attendant instruction”—“You may talk with jury
attendants about scheduling. . . . [B]ut you may not discuss the evidence, these instructions,
or other substantive issues [with them].” According to Curtis, read together, the two
instructions “plainly implied that there was no way” to request review of the audio/video
exhibits.
Curtis relies on State v. Spaulding, 296 N.W.2d 870 (Minn. 1980) to support this
argument. In Spaulding, despite a rule allowing the jury to request rereading testimony,
the district court instructed the jury at the outset that “no testimony would be reread.” 296
N.W.2d at 877-78. The supreme court concluded that the district court abused its discretion
because it “categorically refused to honor any requests for rereading evidence.” Id. at 878.
This case is distinguishable from Spaulding. Unlike Spaulding, the jury-attendant
instruction did not directly contradict the rule that jurors could ask the judge to review the
audio/video exhibits. Instead, the jury-attendant instruction appropriately informed the
jurors not to talk about the substance of the case with the jury attendants and was silent
with respect to the jury’s ability to request reviewing the audio/video exhibits. And, as set
forth above, there was no legal authority requiring the district court to give a review-in-
open-court instruction. See Lutz, 2024 WL 3755942, at *4 n.2. Again, without any such
legal authority, we cannot conclude the district court plainly erred. See Webster, 894
N.W.2d at 787.
10
For these reasons, we conclude the district court did not plainly err when it issued
its jury instructions regarding access to audio/video exhibits.
II.
Curtis next argues the district court plainly erred when it used a standard jury
instruction to instruct the jurors on the elements of self-defense. District courts generally
have wide latitude to articulate jury instructions in so far as the instructions do not “confuse,
mislead, or materially misstate the law.” State v. Taylor, 869 N.W.2d 1, 14-15 (Minn.
2015) (quotation omitted).
Under Minn. Stat. § 609.06, subd. 1(3) (2022), a person may use “reasonable force
. . . upon or toward the person of another without the other’s consent . . . to resist an offense
against the person.” The elements of self-defense include:
(1) the absence of aggression or provocation on the part of the
defendant; (2) the defendant’s actual and honest belief that he
or she was in imminent danger of bodily harm; (3) the
existence of reasonable grounds for that belief; and (4) the
absence of a reasonable possibility of retreat to avoid the
danger.
State v. Devens, 852 N.W.2d 255, 258 (Minn. 2014) (quotation omitted).
Here, the district court instructed the jury that “[a]n offense against the person
means an offense of a physical nature with the potential to cause bodily harm” and “[i]t is
lawful for a person who is resisting an offense against his person and who has reasonable
grounds to believe that bodily injury is about to be inflicted to defend from an attack.”
(Emphasis added.) This instruction mirrored the standard jury instruction in effect at the
time of trial. See 10 Minnesota Practice, CRIMJIG 7.13 (Supp. 2022).
11
Curtis challenges the district court’s wording that the offense must be “of a physical
nature” and that self-defense is only lawful to “defend from an attack.” He argues that both
phrases imply that an assault must occur and preclude a defense based on D.W. providing
him with dangerous narcotics. To support his argument, Curtis relies primarily on State v.
Lampkin, 994 N.W.2d 280 (Minn. 2023).
In Lampkin, the state charged the defendant with felony domestic assault. 994
N.W.2d at 283. The defendant claimed self-defense, arguing that he was protecting himself
from assault. Id. at 283-84. The district court instructed the jury that “[i]t is lawful for a
person who is resisting an assault against his person and who has reasonable grounds to
believe that bodily injury is about to be inflicted upon the person to defend from an attack.”
Id. at 284. After the jury found him guilty, the defendant appealed, arguing that the district
court plainly erred when it used this jury instruction becau se it “stated that he could only
use reasonable force to defend against an ‘assault’ rather than any ‘offense against the
person.’” Id. at 284 . Upon review, the supreme court acknowledged that the word
“assault” does not cover the broader range of acts that might constitute “an offense against
the person” threatening bodily harm. Id. at 290. But the supreme court concluded the
instruction was not plainly erroneous because it “fit the contentions of the parties .” Id.
(quotation omitted).
Here, like in Lampkin, if the provision of dangerous drugs can amount to an “offense
against the person,” the district court’s formulation adequately “fit the contentions of the
parties.” See id. (quotation omitted). Curtis argues that he acted in self-defense because
D.W. poisoned and intended to kill him. Assuming Curtis’s allegations about D.W. are
12
true, words like “of a physical nature” and “attack” fit under the umbrella of the behavior
he describes. Further, wording like “of a physical nature” and “attack” fit the basic
elements of self-defense, which required Curtis to have an “honest belief” that D.W. put
him “in imminent danger of bodily harm. ” See Devens, 852 N.W.2d at 258) (quotation
omitted). And the instruction was consistent with the standard jury instruction in effect at
the time of trial. See Webster, 894 N.W.2d at 787 (noting the import of a district court
using a standard jury instruction on plain-error review).
For these reasons, we conclude the district court did not plainly err when it
instructed the jury on self-defense.
III.
Finally, Curtis argues the state engaged in prosecutorial misconduct during closing
argument.5 When a defendant d oes not object to alleged prosecutorial misconduct, we
apply a modified plain-error review. See Ramey, 721 N.W.2d at 302. This standard differs
from traditional plain-error review because, if the defendant meets their burden to show an
error that is plain, the burden shifts to the state to demonstrate “no reasonable likelihood
that the absence of the misconduct in question would have had a significant effect on the
verdict.” Id. (quotation omitted). Whether the state met its burden depends on factors like

5 Though there is a distinction between prosecutorial error and prosecutorial misconduct,
the same standard applies to both. See State v. Leutschaft, 759 N.W.2d 414, 418 (Minn.
App. 2009) (distinguishing between prosecutorial misconduct and prosecutorial error but
applying modified plain-error standard regardless of the characterization), rev. denied
(Minn. Mar. 17, 2009). Because Curtis characterizes his argument as one for prosecutorial
misconduct, we address his argument under that framing.
13
the strength of the state’s evidence and the error’s pervasiveness. State v. Davis, 735
N.W.2d. 674, 682 (Minn. 2007).
Here, Curtis challenges a prosecutor statement that he argues misconstrued the
presumption of innocence. Curtis relies on State v. Portillo, where the supreme court
concluded a prosecutor engaged in misconduct by stating the defendant “no longer” had
the presumption of innocence. 998 N.W.2d 242, 250-51 (Minn. 2023) (emphasis added).
Curtis also challenges a series of “we” statements the prosecutors used during
closing arguments. For support, Curtis invokes State v. Mayhorn, where the supreme court
held a prosecutor may not “describe [themself] and the jury as a group of which the
defendant is not a part, ” and that prosecutor’s use of ‘“we’ and ‘us’ is inappropriate and
may be an effort to appeal to the jury’s passions.” 720 N.W.2d 776, 790 (Minn. 2006).
We first consider whether the state met its burden to show that there is no reasonable
likelihood that the absence of these statements would have had a significant impact on the
verdict. See Ramey, 721 N.W.2d at 302. If we conclude the state met its burden, we need
not decide whether the prosecutor’s statements constituted plain error. See State v.
Garland, 942 N.W.2d 732, 750 (Minn. 2020).
On this record, we conclude that the state met its burden. The state ’s case against
Curtis was overwhelming. The state presented multiple witnesses, along with audio/video
evidence supporting D.W.’s assault allegation.
6 Moreover, “[w]e presume that jurors

6 We note that this is distinguishable from Portillo where the state failed to meet its burden,
in part, because the state relied on a single witness’s testimony a decade after the alleged
conduct occurred “without any corroborating testimony, physical evidence, or other
witnesses to the abuse.” 998 N.W.2d at 252.
14
follow a judge’s instructions.” State v. Miller, 573 N.W.2d 661, 675 (Minn. 1998). And
here, the district court cautioned the jurors that the “remarks of an attorney [were] not
evidence,” and instructed the jury that if an attorney made “any statement of the law that
differ[ed] from the law [the district court provided], disregard the statement.” The district
court also provided a correct instruction on the presumption of innocence, stating the
defendant was presumed innocent “unless and until the defendant has been proven guilty
beyond a reasonable doubt.” And, upon our inspection of the prosecutor’s “we”
statements, we do not discern that the prosecutor intended to use the statements to appeal
to the jury’s passions. See Mayhorn, 720 N.W.2d at 790.
For these reasons, we conclude the state met its burden to show that, if the
prosecutor’s statements amounted to misconduct, there is no reasonable likelihood that the
absence of such statements would have had a significant effect on the verdict.
Affirmed.