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This opinion is nonprecedential except as provided by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
A23-1933

State of Minnesota,
Respondent,

vs.

Thomas James Horton, Jr.,
Appellant.

Filed December 16, 2024
Affirmed
Johnson, Judge

Olmsted County District Court
File No. 55-CR-23-3651

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

Mark A. Ostrem, Olmsted County Attorney, James E. Haase, Senior Assistant County
Attorney, Rochester, Minnesota (for respondent)

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

Considered and decided by Bentley, Presiding Judge; Segal , Chief Judge; and
Johnson, Judge.
NONPRECEDENTIAL OPINION
JOHNSON, Judge
An Olmsted County jury found Thomas James Horton Jr. guilty of felony domestic
assault based on evidence that he hit his former girlfriend in the nose. We conclude that
the prosecutor did not engage in misconduct that requires a new trial. Therefore, we affirm.
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FACTS
In the early morning hours of May 30, 2023, Horton and his former girlfriend, K.P.,
were parked at a Kwik Trip store in Rochester. A Kwik Trip employee, G.S., was sitting
in his parked car nearby while on a break from work. G.S. heard a woman yelling inside
Horton’s car. He saw K.P. exit the car, yell “help me,” and walk into the store. G.S. also
saw a man, later identified as Horton, exit the car, follow K.P. for a short time, and then
leave on foot.
G.S. entered the Kwik Trip store and saw that K.P.’s face was bloody and that she
was crying. K.P. spoke to other store employees, one of whom called 911. Officer Bowron
responded to the call. K.P. told the officer that she had an argument with her former
boyfriend and that he had hit her in the nose. K.P. was crying, with tears “rolling down
her face” and a bloody nose that was dripping blood onto her chest. A different police
officer arrested Horton in a nearby park approximately one hour later.
The state charged Horton with felony domestic assault, in violation of Minn. Stat.
§ 609.2242, subd. 4 (2022). The case was tried to a jury on five days in July and August
2023. The state called eight witnesses, including G.S., Officer Bowron, and K.P. The state
played for the jury excerpt s of a videorecording made by Officer Bowron’s body-worn
camera. The videorecording shows that K.P. was upset and was crying, that she repeatedly
wiped her nose with paper napkins, and that blood was visible on her upper chest. Officer
Bowron asked K.P. numerous questions about the cause of her injuries and the surrounding
circumstances, including her relationship with Horton. K.P. said, among other things, that
Horton is “an evil person” and that “out of nowhere [he] decked me in the face.” She later
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clarified that Horton hit her “right in the nose.” The state also introduced photographs
depicting K.P.’s injuries, including her bloody nose.
K.P. testified that she had discontinued her romantic relationship with Horton before
the incident at the Kwik Trip but met him that night so that she could return a car that he
had lent her. Notably, K.P. testified that the statements she made to the Kwik Trip
employees and to Officer Bowron inside the store were not true. She explained that she
had a bloody nose that night because she reached for her purse in the back seat of Horton’s
car and when she pulled on the purse strap, it broke, causing her to hit herself in the face
with her own hand. Horton did not testify and did not present any other form of evidence.
The jury found Horton guilty. The district court imposed a sentence of 33 months
of imprisonment. Horton appeals.
DECISION
Horton argues that he was denied a fair trial because the prosecutor engaged in two
types of misconduct. First, he argues that the prosecutor improperly elicited evidence that
Horton had used methamphetamine on one prior occasion. Second, he argues that the
prosecutor improperly aligned himself with jurors during closing argument by using the
word “we” to refer to himself and the jurors.
The right to due process of law includes the right to a fair trial. Spann v. State, 704
N.W.2d 486, 493 (Minn. 2005); State v. Ferguson, 729 N.W.2d 604, 616 (Minn. App.
2007), rev. denied (Minn. June 19, 2007). “Prosecutors have an affirmative obligation to
ensure that a defendant receives a fair trial.” State v. Jones, 753 N.W.2d 677, 686 (Minn.
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2008) (quotation omitted). Consequently, prosecutorial misconduct may result in the
denial of a fair trial. State v. Ramey, 721 N.W.2d 294, 300 (Minn. 2006).
The parties agree that Horton did not object at trial to the alleged misconduct that
he challenges on appeal. Accordingly, we apply the modified plain-error test. State v.
Carridine, 812 N.W.2d 130, 146 (Minn. 2012). To prevail under the modified plain-error
test, an appellant must establish that there is prosecutorial misconduct and that it is plain.
Ramey, 721 N.W.2d at 302. “A prosecutor engages in prosecutorial misconduct when he
violates ‘clear or established standards of conduct, e.g., rules, laws, orders by a district
court, or clear commands in this state’s case law.’” State v. McCray, 753 N.W.2d 746, 751
(Minn. 2008) (quoting State v. Fields, 730 N.W.2d 777, 782 (Minn. 2007)). Prosecutorial
misconduct is plain if there is “conduct the prosecutor should know is improper.” Ramey,
721 N.W.2d. at 300.
If a prosecutor engages in misconduct that is plain, the burden shifts to the state to
show “that there is no reasonable likelihood that the absence of the misconduct in question
would have a significant effect on the verdict of the jury.” Id. at 302 (quotation omitted).
If the state satisfies that burden, an appellate court then must determine whether the plain
misconduct should result in a new trial to ensure the “fairness, integrity, or public
reputation of judicial proceedings.” Pulczinski v. State, 972 N.W.2d 347, 356 (Minn.
2022).
A.
Horton first argues that the prosecutor engaged in misconduct by wrongfully
eliciting evidence that Horton had used methamphetamine on one prior occasion. This
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issue arose during the testimony of a police officer who was called to testify about the
relationship between Horton and K.P. See Minn. Stat. § 634 .20 (2022). The officer
testified that, in May 2021, he was dispatched to K.P.’s home because of a report that
Horton and K.P. were engaged in a domestic disturbance. The officer testified that, when
he arrived at K.P.’s home, K.P. was upset and had a bloody, swollen lip. The officer
testified that Horton said that he and K.P. had argued and that Horton admitted that he
“might have” struck K.P.’s face. The prosecutor followed up by asking the officer
additional questions about a subsequent conversation with Horton:
Q: Now, is it true that you also spoke with [Horton]
a little bit later that day as well?

A: Correct. At the hospital.
Q: Now, when you say at the hospital, I want to be
clear. Was he at the hospital for like an injury?

A: No. He informed officers on scene, if I’m not
mistaken, that he ingested methamphetamine prior to our
arrest.

Q: Okay. So, I want to ask you about what he told
you at the hospital. And how long was that conversation?

A: 10 seconds.

Q: What was the topic of that conversation?

A: Just casual talk. I wasn’t asking him anything in
relation to the case at all. I just said, “Hey, Tom, where are
you living at nowadays,” and he told me where he was. Then
I asked, “Is [K.P. ] living there too, as well,” and he said —he
nodded. He didn’ t say yes or no, he just nodded yes.
(Emphasis added.)

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Horton contends that the prosecutor engaged in misconduct by eliciting Spreigl
evidence that was unnoticed, inadmissible, and highly prejudicial. Horton cites rule 404(b)
of the rules of evidence and Fields. In Fields, however, the supreme court rejected the
appellant’s argument on the ground that the challenged evidence was admissible under rule
608. 730 N.W.2d at 783-84. Horton also cites State v. Harris, 521 N.W.2d 348 (Minn.
1994). In that case, the supreme court reversed a conviction on multiple grounds, including
the fact that the prosecutor intentionally and repeatedly elicited multiple forms of
inadmissible evidence. Id. at 351-55.
In response, the state acknowledges caselaw stating that a prosecutor “has some
responsibility for preparing his witnesses in such a way that they will not blurt out anything
that might be inadmissible and prejudicial.” State v. Carlson, 264 N.W.2d 639, 641 (Minn.
1978). But the state also cites caselaw stating that “unintended responses under unplanned
circumstances ordinarily do not require a new trial.” State v. Hagen, 361 N.W.2d 407, 413
(Minn. App. 1985), rev. denied (Minn. Apr. 18, 1985).
“It is generally misconduct for a prosecutor to ‘knowingly offer inadmissible
evidence for the purpose of bringing it to the jury’s attention.’” State v. Mosley, 853
N.W.2d 789, 801 (Minn. 2014) (quoting State v. Milton, 821 N.W.2d 789, 804 (Minn.
2012)). If a prosecutor intentionally elicits inadmissible evidence from a state’s witness, a
new trial may be appropriate if the inadmissible evidence was prejudicial in the sense that
it “played a substantial part in influencing the jury to convict. ” See State v. McDaniel,
777 N.W.2d 739, 749 (Minn. 2010) (quotation omitted); see also State v. McNeil,
658 N.W.2d 228, 231 -32 (Minn. App. 2003). If a prosecutor un intentionally elicits
7
inadmissible evidence, a defendant is entitled to a new trial only if the inadmissible
evidence “prejudiced the defendant’s case. ” State v. Richmond, 214 N.W.2d 694, 695
(Minn. 1974). The admission of inadmissible evidence is not reversible error if the
prosecutor did not intentionally elicit the testimony, the statement at issue was merely a
“passing” reference, and the evidence supporting guilt was “overwhelming.” State v.
Haglund, 267 N.W.2d 503, 506 (Minn. 1978).
In this case, it appears that the prosecutor did not intend to elicit testimony about
Horton’s prior drug use. The transcript indicates that the prosecutor asked the police officer
a yes-or-no question about whether Horton was at the hospital because of an injury. The
officer could have simply answered that question in the negative and then stopped. Instead,
the officer gratuitously expanded on his negative answer by testifying that Horton had said
that he “ingested methamphetamine.” The prosecutor did not ask any additional questions
about methamphetamine but, rather, asked the officer about Horton and K.P.’s relationship,
which was the reason why the officer was called. The prosecutor did not mention Horton’s
drug use in closing argument.
The prejudicial effect of the evidence of Horton’s prior drug use must be determined
in light of the strength of the state’s evidence of guilt. See id. The state introduced strong
evidence of guilt, including the testimony of Officer Bowron and a body-worn- camera
videorecording made shortly after the 911 call, in which K.P. states that Horton hit her. In
addition, the state called G.S., the Kwik Trip employee who heard K.P. yell while in
Horton’s car, saw her walk from the car to the store, and also heard her say, shortly after
the incident, that Horton hit her. Granted, K.P. testified that her statements in the Kwik
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Trip store were untrue. But that testimony is unpersuasive in light of the contemporaneous
videorecording of her statements and the visual evidence of her injuries. In the
videorecording, K.P. clearly states that Horton hit her, and she describes the incident while
upset and while crying, with blood dripping from her nose onto her chest. Her answers to
the officer’s numerous questions indicate that she and Horton had a troublesome
relationship. In addition, a purse is easily visible in front of her body, and both purse
straps—a long strap and a short strap—appear to be unbroken.
Because the prosecutor did not intentionally elicit the inadmissible evidence,
because the challenged evidence was merely a “passing” reference, and because the
evidence supporting guilt was “ overwhelming,” this case is like Haglund, in which the
supreme court concluded that there was no reversible error. See id.; see also Hagen, 361
N.W.2d at 413 (concluding that prosecutor did not intentionally offer inadmissible
evidence because witness’s answer was “an unintended and unexpected explanatory
answer to a question calling for a yes or no response”).
B.
Horton also argues that the prosecutor engaged in misconduct by repeatedly using
the word “we” in closing argument, thereby improperly aligning himself with jurors.
In his principal brief, Horton quotes the following excerpts from the transcript of
the prosecutor’s closing argument:
There can be an emotional temptation to think, well, if
[K.P.] doesn’t want [Horton] to get in trouble, then why should
we? Why should we care?

. . . .
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And when we continue with that, let’s talk about what
is to be believed. Do we believe what originally happened that
night or do we believe the recantation that you heard on the
stand this week.

. . . .

Consider as she sat here today [K.P.’s] interest. She
wanted to protect Mr. Horton. We know that because from the
very beginning she was saying she didn’t want him to get in
trouble. We know that because of everything about her—about
her behavior about everything that happened this week. We
know that she has an interest in the outcome of the case.

. . . .

Another thing I’d like you to consider that we haven’t
talked about a whole lot but we know it’s true, what about Mr.
Horton hiding in the woods?

. . . .

The second point I’d like to make that I’ll make only
briefly is we don’t know. We have no reason to believe [K.P.]
talked to this EmPower employee.

. . . .

I’m only presenting my argument for what I advocate
that you look at here. But what we see here, this purse clearly
has a long strap for when you wear it over your shoulder and it
has a short strap for when you carry it in your hand at your side.
(Emphasis added.)

Horton relies on State v. Mayhorn, 720 N.W.2d 776 (Minn. 2006), in which the
supreme court recognized that “a prosecutor is not a member of the jury” and, thus, may
not “describe herself and the jury as a group of which the defendant is not a part.” Id. at
790. Specifically, the supreme court stated in Mayhorn that “to use ‘we’ and ‘us’ is
10
inappropriate and may be an effort to appeal to the jury’s passions.” Id. The state contends
that Mayhorn is distinguishable because the prosecutor in that case used the word “we”
along with other tactics to “highlight cultural differences between the predominantly white
jury and the [African American] defendant.” Id. at 789. The state also responds by citing
Nunn v. State, 753 N.W.2d 657 (Minn. 2008), in which the supreme court explained that
using the word “we” does not constitute prosecutorial misconduct per se and that the word
does not necessarily align the prosecutor with jurors if the word could reasonably be
interpreted to “refer to everybody who was in court when the evidence was presented.” Id.
at 663.
In this case, the prosecutor’s use of the word “we” does not appear to be “an effort
to appeal to the jury’s passions,” which is expressly forbidden by Mayhorn. 720 N.W.2d
at 790. To the contrary, it appears that the prosecutor used the word in a dispassionate
way. Arguably a prosecutor is forbidden from using the word “we” in a dispassionate way
if the prosecutor does so to improperly align himself or herself with jurors. Cf. id. On
some occasions, the prosecutor used the word as an innocuous rhetorical device, in a
manner similar to the word “one” or “a person.” On other occasions, the prosecutor used
the word in a way that encompassed everyone in the courtroom, including Horton, which
is expressly permitted by Nunn. 753 N.W.2d at 663. But a few of the prosecutor’s “we”
statements are more difficult to reconcile with Nunn because they appear to assume that
the prosecutor and jurors will share the same point of view with respect to disputed factual
issues. For purposes of this nonprecedential opinion, we assume without deciding that the
prosecutor engaged in misconduct and that the misconduct is plain.
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We next turn to the question of whether the state satisfied its burden of showing that
the misconduct did not affect Horton’s substantial rights, i.e., “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.” See Ramey, 721 N.W.2d at 302 (quotation omitted).
“When reviewing claims of prosecutorial misconduct during closing argument, we
consider the argument as a whole, rather than focusing on particular phrases or remarks
that may be taken out of context or given undue prominence.” Jones , 753 N.W.2d at 691
(quotation omitted).
We believe that there is no reasonable likelihood that the prosecutor’s occasional
use of the word “we” significantly affected the jury’s verdict. The 13 challenged instances
of “we” must be considered in the context of a relatively long closing argument, which
comprises over 16 pages of transcript. In addition, the prosecutor expressly stated to jurors
that they should make their decision based on intellect and reason rather than emotion.
Most importantly, the jury likely decided the case based on the state’s evidence, which was
strong. As stated above, the state introduced the testimony of Officer Bowron and a body-
worn-camera videorecording in which K.P. says, while upset and crying and bloody, that
Horton hit her in the nose. The state also called G.S., the Kwik Trip employee who was
present nearby during the incident and heard K.P. say, shortly after the incident, that Horton
hit her. The videorecording depicts a purse with two unbroken straps, which undermines
K.P.’s testimony that she injured her nose when she broke a purse strap. Consequently,
even if the prosecutor engaged in plain misconduct, the state has shown that the misconduct
did not affect Horton’s substantial rights.
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In sum, Horton is not entitled to a new trial on the ground of prosecutorial
misconduct.
Affirmed.