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This opinion is nonprecedential except as provided by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
A23-1712

State of Minnesota,
Respondent,

vs.

Christopher Gregory Roth,
Appellant.

Filed November 25, 2024
Affirmed
Harris, Judge

Ramsey County District Court
File No. 62-CR-23-60

Keith Ellison, St. Paul, Minnesota; and

John J. Choi, Ramsey County Attorney, Peter R. Marker, Assistant County Attorney,
St. Paul, Minnesota (for respondent)

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

Considered and decided by Harris, Presiding Judge; Larkin, Judge; and Smith,
Tracy M., Judge.
NONPRECEDENTIAL OPINION
HARRIS, Judge
Appellant Christopher Gregory Roth challenges his conviction, following a jury
trial, for domestic assault by strangulation. He contends the district court erred by
(1) allowing the state to introduce vouching testimony, (2) allowing the state to provide
2
testimony on rebuttal that exceeded the scope of the defense evidence, and (3) allowing the
jury to review body- worn-camera footage introduced as evidence of a prior inconsistent
statement. Additionally, Roth contends that the prosecutor committed misconduct by
suggesting through cross examination of Roth that he tailored his testimony. In the
alternative, Roth asserts that the cumulative effect of these errors requires a new trial.
Because we conclude that the district court did not err, and the prosecutor committed
misconduct that did not affect appellant’s substantial rights or deprive appellant of his right
to a fair trial, we affirm.
FACTS
In January 2023, respondent S tate of Minnesota charged appellant Christopher
Gregory Roth with domestic assault by strangulation, in violation of Minnesota Statutes
section 609.2247, subdivision 2 (2022), based on a domestic incident with his wife, M.O .
Roth pleaded not guilty and the matter proceeded to a jury trial.
The state introduced into evidence the 911 call made by M.O. on the day of the
incident. In the call, M.O. stated that her husband, Roth, choked her and twisted her neck
before leaving in his vehicle. M.O. told the dispatcher that Roth choked her in front of
their daughter, that she “wants a restraining order against him,” and that she “can’t do this
[anymore].” She denied needing an ambulance and stated that she was afraid to hang up
with the dispatcher until police arrived because Roth was “known to come back and hurt
[her] some more.” M.O. can be heard crying and breathing heavily for the entirety of the
911 call.
3
The state next called M.O.’s father, R.O., as a witness. He testified that on the day
of the incident, he awoke to yelling between M.O. and Roth. R.O. said that he heard M.O.’s
voice getting weaker and described hearing M.O trying to breathe. R.O. testified that he
saw Roth hit and grab M.O. and hold her in a chokehold. He stated that Roth acted “[l]ike
he was a tough guy” throughout the altercation that night, explaining that he carried a
“you’re gonna listen to me or you’re gonna . . . ” demeanor. R.O. added that Roth
“continued to choke” until “all of a sudden he quit and he ran.” Then, the police arrived.
The state next called M.O. as a witness. M.O. testified that, on the date of the
incident, she had been living with Roth, their three children, and her mother and father.
She testified that it was her father who called 911 and not she, but that she did speak with
Officer C.D that night. M.O. also testified that she was high and lied to Detective A.B.
about the entire incident.
The state introduced evidence of Officer C.D.’s body-worn camera (BWC). Before
playing the video, the court gave the following instruction:
So, ladies and gentlemen, . . . you’re about to hear some
evidence concerning statements that the witness allegedly
testify – or testified to earlier on. These statements may be
inconsistent. They’re considered prior inconsistent statements,
and you should consider that statement as evidence of the fact
referred to in a prior statement that is admitted into evidence.

The court then clarified its instruction:
[T]he evidence that has just been received, Exhibit 3,
concerning the statement that is allegedly to have been made
sometime before [M.O.] testified here is admitted only for the
light it may cast on the truth of her testimony at trial. You must
not consider this statement as evidence of the facts referred to
in the statement itself.
4
The state played video and audio footage of Officer C.D.’s BWC for the jury. The
footage shows Officer C.D. speaking with M.O. shortly after midnight. Officer C.D. asked
M.O. whether Roth ever threatened or tried to kill her, to which she responded
affirmatively. M.O. then testified that she is “the one who gets physical,” she “was a hot
mess in that video,” and that she would “be the first to tell [that she] was high as hell.”
Roth testified in his own defense. He testified that he has been married to M.O. for
eight years and they have three children together. Roth explained that M.O. suffers from
physical and mental illnesses, that M.O. has assaulted him in the past, and that M.O. has
instructed him that “the only way to get her to calm down if she’s in a mania from bipolar
is to hold her, and then to tell her that I love her and everything else.”
Roth explained that, on the night of the incident, he picked up their daughter from
school and then learned from M.O. that the police were called to their residence earlier that
day. When he arrived home, he was met by one of the police officers who explained that
M.O. and R.O. had gotten into an altercation and that things were physically escalating.
Roth got M.O. to calm down in a separate room, but M.O. continued to yell back and forth
with her parents. He said that M.O. expected him to defend her by telling her parents to
“stop talking about [them].” Roth testified that he told M.O., “It’s enough. [You]’ve got
to stop. This has got to stop.” Roth then turned away from her to face the television when
he felt M.O. push him from behind and hit him with something. When he turned around
his arm hit M.O. Roth told M.O. that he was going to leave and that they could not continue
this anymore, but she became upset and would not let him leave. According to Roth, M.O.
then pushed him and hit him in the back of the head with something.
5
Roth additionally testified that he has had to call 911 multiple times for
disturbances. He explained that he does not always call 911 due to M.O.’s behavior
because she has an extensive history and worries that the next call may get her arrested and
their children do not deserve to see a parent “behind bars.”
During rebuttal, the state called Detective A.B. The detective testified that he has
worked for the White Bear Lake Police Department for twelve years. He also testified that,
based on his experience and training, “if a couple’s involved in long term abusive
relationships, domestic assaults tend to increase over time.” “Those begin from arguments
to punching, hitting, and eventually strangulation.” Detective A.B. explained that a victim
may report that they were assaulted but then recant because they overexaggerated, lied
about the situation, or because they don’t want to see their partner get in trouble. Detective
A.B. also testified that the police department has responded more than 40 times to
situations between M.O. and Roth since 2015.
Detective A.B. testified that, during a meeting with M.O. in June 2023, M.O.
admitted that she lied about the incident, that she was high, and that Roth did nothing
wrong. M.O. also denied that Roth choked her. The state introduced photos of M.O.’s
neck and arm. Detective A.B. testified that the bruising on M.O. was consistent with being
assaulted, hit, or strongly held. When the prosecutor asked whether he was surprised at
M.O.’s recantation during the June 2023 meeting, Detective A.B. stated, “No, . . . [b]ecause
that’s – she has done that in the past, where she’s called saying that [Roth] has done
something; we respond to the address. She’ll either, one, say nothing happened or become
uncooperative. So, again, yeah, I’m not surprised when she said that.”
6
The jury returned a guilty verdict. The district court sentenced Roth to 12 months
and a day, stayed execution of that sentence, and placed him on supervised probation for
three years. Roth appeals.
DECISION
Roth challenges his conviction on two grounds. First, Roth argues that the district
court plainly erred when it: (1) allowed testimony from Detective A.B. vouching against
M.O’s credibility; (2) allowed Detective A.B. to provide testimony on rebuttal that
exceeded the scope of the defense evidence; and (3) played BWC footage introduced as
evidence of a prior inconsistent statement for the jury during jury deliberation. Second,
Roth asserts that the prosecutor committed misconduct by suggesting through cross-
examination of Roth that Roth had tailored his testimony. Roth did not object at trail to
any of the actions that he challenged now. We address each argument in turn.
I. The district court did not commit plain error.
A. Standard of Review.
We review unobjected -to admissions for plain error. State v. Kelley, 855 N.W.2d
269, 273 (Minn. 2014). Under the plain error standard, the appellant must demonstrate that
(1) there was an error; (2) the error was plain; and (3) the error affected appellants
substantial rights. State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998). “An error is plain
if it is clear or obvious, which is typically established if the error contravenes case law, a
rule, or a standard of conduct.” State v. Webster, 894 N.W.2d 782, 787 (Minn. 2017)
(quotation omitted). If each prong is satisfied, we will then determine whether the error
requires reversal to “ensure fairness and the integrity of the judicial proceedings.” Griller,
7
583 N.W.2d at 740. But “[i]f the [appellant] fails to establish that the claimed error affected
his substantial rights, we need not consider the other plain error factors.” State v. Matthews,
800 N.W.2d 629, 634 (Minn. 2011).
B. The district court did not commit plain error because Detective A.B.’s
testimony did not vouch for or against M.O.’s credibility.

Roth argues that the district court committed plain error because it permitted
vouching testimony by Detective A.B. during the state’s redirect examination. Roth alleges
that Detective A.B.’s testimony about his experience with domestic violence victims and
lack of surprise that M.O. recanted her statement was vouching testimony. R oth asserts
that this testimony communicated to the jury that M.O.’s trial testimony was not credible.
The state argues that Detective A.B.’s testimony was not erroneously admitted because he
did not vouch for or against M.O.’s credibility or opine on her truthfulness.
“The credibility of a witness is for the jury to decide.” State v. Ferguson, 581
N.W.2d 824, 835 (Minn. 1998) (quotation omitted). A witness testifying for or against the
credibility of another witness is improper vouching testimony. Ferguson, 581 N.W.2d at
835; see State v. Koskela, 536 N.W.2d 625, 630 (Minn. 1995) (concluding it was improper
to admit a police officer’s testimony that he was certain he was taking a truthful statement,
but also finding no prejudice because other evidence revealed the opi nion on truthfulness
was little more than corroborative ); State v. Ellert, 301 N.W.2d 320, 323 (Minn. 1981)
(holding the district court erroneously admitted a police officer’s testimony that he believed
the defendant lied when making her statement to the police).
8
In Ferguson, the supreme court held that a police officer who testified that an
informant had provided law enforcement with information on prior occasions was not
vouching testimony. 581 N.W.2d at 836. The court stated that the officer “did not testify
that [the informant] was telling the truth or that he believed one witness over another.” Id.
Similarly, here, Detective A.B. did not testify that he believed M.O. was lying or
telling the truth during the June 2023 meeting. He instead testified about his experience
working in domestic violence cases and that victims may recant earlier statements because
they either lied, exaggerated, or loved their partners. And based on his prior dealings with
M.O., he testified that he was not surprised that M.O. recanted her statement. For these
reasons, we reject Roth’s assertion that Detective A.B. vouched against M.O.’s testimony
and conclude there was no plain error.
C. The district court did not commit plain error by permitting the state to
present rebuttal testimony of Detective A. B. because the testimony did
not exceed the scope of the defense evidence.

Next, Roth argues that Detective A.B.’s rebuttal testimony exceeded the scope of
his defense evidence and effectively allowed the state to re-emphasize its case-in-chief.
Minnesota Rules of Criminal Procedure 26.03, subdivision 12(g), permits the state
to “rebut the defense evidence” after the defense presents its case. “[R]ebuttal evidence
consists of that which explains, contradicts, or refutes the defendant’s evidence . . . and the
determination of what constitutes proper rebuttal evidence rests almost wholly in the
discretion of the trial court.” State v. Swanson, 498 N.W.2d 435, 440 (Minn. 1993)
(quotation omitted). The purpose of rebuttal evidence “is to cut down defendant’s case and
not merely to confirm the case in chief through restatement or new facts.” State v. Walker,
9
235 N.W.2d 810, 815 (Minn. 1975). “It is the jury’s role to assess the credibility of the
evidence and the state may present rebuttal evidence for the jury to consider in making its
decision.” State v. Blom, 682 N.W.2d 578, 622 (Minn. 2004).
The state argues that Detective A.B.’s testimony was proper because Roth’s
testimony corroborated M.O.’s recantation that Roth had done nothing wrong and,
therefore, the state needed to present evidence for the jury to credit her initial report of the
incident during the 911 call.
Here, Roth testified generally about his relationship with M.O. and the January 2023
incident. Detective A.B. testified that domestic-abuse victims often recant earlier
complaints either because they exaggerated, lied, or did not want to see their loved ones
get in trouble. He also testified that the police department had responded to disputes
between Roth and M.O. over 40 times, that M.O. recanted in the past, and that the bruising
on her arms was consistent with being assaulted.
We reject Roth’s assertion that the state presented rebuttal evidence far beyond the
scope of the defense’s case. Roth’s testimony corroborated M.O.’s recantation, which
speaks to their credibility as witnesses. The state then introduced Detective A.B.’s
testimony that could explain, contradict, or refute Roth’s testimony that tended to align
with M.O.’s recanted statement. In sum, the district court did not plainly err by admitting
the state’s rebuttal testimony.

10
D. The district court did not commit plain error when it permitted the jury
to review Officer C.D.’s BWC video during deliberations.

Roth next argues that the district court committed plain error when it played Officer
C.D.’s BWC footage during jury deliberations. A district court “must permit received
exhibits or copies into the jury room including audio or video exhibits. The court may
exclude audio or video exhibits from the jury room . . . if the court determines that allowing
the exhibits into the jury room is not feasible,” or if “a party objects that allowing the
exhibits into the jury room will result in prejudice.” Minn. R. Crim. P. 26.03,
subd. 20(1)(a)-(b). “The court must not permit into the jury room . . . audio and video
exhibits that contain oral statements that would unfairly deemphasize live testimony.” Id.,
subd. 20(20(b). The court may allow the jury to review specific evidence under the
following circumstances:
(a) If the jury requests review of specific evidence
during deliberations, the court may permit review of that
evidence after notice to the parties and an opportunity to be
heard.
(b) Any jury review of depositions admitted in lieu
of testimony, and audio or video exhibits not permitted in the
jury room under paragraph (1) of this rule, must occur in open
court. The court must instruct the jury to suspend deliberations
during the review.

Minn. R. Crim. P. 26.03, subd. 20(2)(a)-(b). Here, the district court gave notice and an
opportunity to both parties to state their positions on the jury’s request to review the BWC
footage. Neither party objected.
Roth insists, however, that under State v. Kraushaar, 470 N.W.2d 509, 515 (Minn.
1991), the district court was required to consider “(i) whether the material [would] aid the
11
jury in proper consideration of the case; ( ii) whether any party [would ] be unduly
prejudiced by submission of the material; and (iii) whether the material may be subjected
to improper use by the jury.” His reliance on Kraushaar is misguided. There, the jury
requested and was permitted to review video evidence in the jury room. Kraushaar, 470
N.W.2d at 515. The supreme court outlined three considerations that district courts “should
take into account in exercising its discretion.” Id. (emphasis added). The supreme court
added that, while the district court likely did not abuse its discretion, “it would have been
preferable for the review to have taken place in the courtroom rather than in the jury room.”
Id. at 516.
In contrast, here, the district court permitted the jury to view the BWC video in the
courtroom rather than in the jury room. Moreover, the BWC video was admitted into
evidence during trial.
Roth additionally argues that playing the video was improper because the BWC
footage was only admitted for prior inconsistent statements. “A witness’s prior
inconsistent statement is admissible for impeachment purposes, but it is generally not
admissible as substantive evidence.” In re Welfare of D.D.R., 713 N.W.2d 891, 901 (Minn.
App. 2006). However, the district court offered a limiting instruction to the jury:
And I just want to clarify in earlier instructions, the
evidence that has just been received, Exhibit 3, concerning the
statement that is allegedly to have been made sometime before
[M.O.] testified here is admitted only for the light it may cast
on the truth of her testimony at trial. You must not consider
this statement as evidence of the facts referred to in the
statement itself.

12
Still, Roth asserts that he had no method to counter the evidence during
deliberations, and that the jury was “allowed to use non-substantive evidence for any
purpose [it] saw fit.” However, we presume “that the jury follows the court’s instructions.”
State v. Pendleton, 706 N.W.2d 500, 509 (Minn. 2005). And here, the district court gave
a limiting instruction when the footage was first introduced. As noted earlier, neither party
objected to the BWC video and Roth’s Miranda statement being played again since the
jury had just returned after a long weekend. Roth could have objected or requested the
court to read a cautionary instruction again, but he did not.
In sum, it was not plain error for the district court to permit the jury to review the
video evidence in open court after deliberations began.
II. The prosecutor committed misconduct by suggesting that Roth tailored his
testimony but the plain error did not affect his substantial rights.

Roth argues that the prosecutor engaged in prosecutorial misconduct by implying
that Roth tailored his testimony after listening to the state’s case-in-chief. The state asserts
that, although the issue is a “close one,” there was no plain error because the prosecutor
had evidentiary grounds to suggest Roth tailored his testimony.
Defendants have the right “to be present at trial under the Confrontation Clause of
the Sixth Amendment and the Due Process Clause of the Fourteenth Amendment.”
Swanson, 707 N.W.2d at 657-58. The prosecution may not “use a defendant’s exercise of
his right of confrontation to impeach the credibility of his testimony, at least in the absence
of evidence that the defendant has tailored his testimony to fit the state’s case.” Id.
13
When the defendant fails to object during trial, prosecutorial misconduct is reviewed
under a modified plain-error standard. State v. Ramey, 721 N.W.2d 294, 302 (Minn. 2006).
The defendant bears the burden of establishing error that is plain, but upon doing so the
burden shifts to the state to prove that there is no reasonable likelihood that the absence of
the misconduct would have had a significant effect on the jury’s verdict. Id.at 299-300.
During Roth’s cross-examination, the prosecutor asked the following questions:
Q: And you had a chance to listen to the recording in its entirety
that was played in court earlier today; is that right?
A: Yes.

Q: And at the time when Officer [C.D.] spoke with you, you
hadn’t heard what [M.O.] had told police officers; is that right?
A: Right.

Q: And you hadn’t heard the 911 call at that time; is that right?
A: Right.

Q: And you hadn’t heard what [M.O.]’s father stated to police
on the date of the incident; is that right?
A: Right.

. . . .

Q: And then as part of [the] proceedings, you got to see the
evidence that the State had gathered in this case; is that right?
A: Not all of it.

Q: But you had a chance to review the evidence in this case and
know what existed; is that right?
A: Very minimum.

Q: Yes or no?
A: Some.
Q: So, yes, you had a chance to review the evidence in this
case, even a part of it?
A: Yes.

14
Q: And you had a chance to discuss all of that, right, and review
it?
A: Yes.

Q: And, in fact, you’re the only witness in this whole trial that
has had a chance to review all the evidence, and then, in fact,
hear all the evidence; is that right?
A: I believe so.

The prosecutor proceeded to ask Roth whether he was in court when the 911 operator,
M.O., M.O.’s father, and Officer C.D. testified, to which Roth answered affirmatively.
We conclude that the prosecutor plainly erred by suggesting that Roth tailored his
testimony. The state maintains that the prosecutor did not commit plain error because
Roth’s testimony at trial was more detailed than his police statements after hearing M.O.’s
testimony. The state relies on State v. Leutschaft, 759 N.W.2d 414, 419 (Minn. App. 2009),
in which we held that even though the prosecutor came “dangerously close” to violating
the Swanson rule, “there was at least an arguable suspicion of tailoring.” We concluded
that the “facts omitted by Leutschaft in his statements to the police were significant enough
that it would be reasonable to expect an arrested person to disclose them if they were true.”
Id. Notably, the line of questioning that was “dangerously close” consisted of the following
exchange:
Q: You got to listen to the testimony here of [T.B.], right?
A: Yes, I did.

Q: She didn’t get to listen to yours, right?
A: I don’t know that.

Id. at 419. Here, however, the prosecutor asked 12 questions “to imply that [Roth] had an
opportunity to adjust his version of the incident after hearing the state’s evidence.” Id.
15
Because the prosecutor committed plain error, the state must demonstrate that the error did
not violate Roth’s substantial rights. The state argues that the prosecutor’s questions were
limited, did not directly accuse Roth of tailoring, and did not suggest in closing argument
that Roth tailored his testimony.
“To evaluate the effect on substantial rights, we consider various factors, including
the pervasiveness of improper suggestions and the strength of evidence against the
defendant.” State v. Parker, 901 N.W.2d 917, 926 (Minn. 2017) (quotation omitted).
Moreover, “[i]f the State fails to demonstrate that the alleged error did not affect the
defendant’s substantial rights, we consider whether the error should be addressed to ensure
fairness and the integrity of judicial proceedings.” Id.
Of the prosecutor’s six-page cross-examination of Roth, two pages consisted of
improper suggestions. While we cannot say that the improper suggestions were not
pervasive, we nevertheless conclude that Roth’s substantial rights were not affected given
the strength of the evidence. At trial, the state presented the 911 call by M.O., when she
can be heard crying and breathing heavily, and reporting that Roth choked her and twisted
her neck. The state also presented Officer C.D.’s BWC footage interviewing M.O. the
night of the incident, which showed M.O. was clearly distraught while describing the
incident. R.O. also testified to hearing yelling and M.O.’s voice getting weaker and
described her breathing difficulty. Although the testimony of R.O. was inconsistent at
times, “it is for the jury, not this court, to determine the credibility and weight to be given
to the testimony of witnesses.” Pendleton, 706 N.W. 2d at 512. And “[e]ven [when]
witness credibility has been challenged, the jury may nonetheless believe the witness.” Id.
16
“We assume that the jury believed the witnesses whose testimony supports the verdict and
that the jury did not believe evidence to the contrary.” Id.
In sum, while the state’s questions were improper, we conclude that the state met
its burden to demonstrate that the improper questioning did not affect Roth’s substantial
rights. And this single error is not enough to deprive Roth of a fair trial.
III. Roth is not entitled to a new trial due to the cumulative effect of the alleged
errors.
Roth argues that he should be granted a new trial based upon the cumulative effect of
all the alleged errors. “[An] appellant 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.’”
State v. Fraga, 898 N.W.2d 263, 278 (Minn. 2017) (quoting State v. Yang, 774 N.W.2d 539,
560 (Minn. 2009)). We have concluded that the district court did not err in its evidentiary
rulings. See supra part I. Because we have concluded that there is only one error,
prosecutorial misconduct, the cumulative-error rule does not apply. See State v. Mayhorn,
720 N.W.2d 776, 791-792 (Minn. 2006) (reversing and remanding for new trial based on
combination of multiple evidentiary errors and multiple incidents and types of
prosecutorial misconduct).
Affirmed.