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This opinion is nonprecedential except as provided by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
A24-0063

State of Minnesota,
Respondent,

vs.

Renan Guandique,
Appellant.

Filed January 21, 2025
Reversed and remanded
Larkin, Judge

Hennepin County District Court
File No. 27-CR-21-14547

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

Mary F. Moriarty, Hennepin County Attorney, Nicholas G. Kimball, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Jennifer Workman Jesness,
Assistant Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Connolly, Presiding Judge; Larkin, Judge; and Jesson,
Judge.

 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.

NONPRECEDENTIAL OPINION
LARKIN, Judge
Appellant challenges his convictions of two counts of first -degree criminal sexual
conduct, arguing that the prosecutor plainly erred by beginning his rebuttal closing
argument with an assertion that “[t]he presumption of innocence is gone.” We apply the
supreme court’s decision in State v. Portillo, 998 N.W.2d 242 (Minn. 2023), and conclude
that reversal is required under the plain-error standard of review.
FACTS
This case stems from appellant Renan Guandique’s convictions of two counts of
first-degree criminal sexual conduct, which are based on allegations that he sexually abused
two of his minor grandsons. Respondent State of Minnesota filed the original charge of
second-degree criminal sexual conduct in August 2021. In May 2023, the state added two
counts of first -degree criminal sexual conduct and an additional count of second -degree
criminal sexual conduct. In August 2023, the state amended the complaint to modify the
first-degree criminal-sexual-conduct charges. The charges were tried to a jury that month.
The evidence at trial indicated that appellant is originally from Honduras, where his
daughter—the complaining witnesses’ mother—was born. Appellant moved to the United
States when his daughter was two years old. Appellant did not see his daughter again until
she was a teenager. Appellant married in 1994, and in 1998, appellant and his wife moved
to Minnesota, where they work ed as pastors at a church. The complaining witnesses and
their mother moved to Minnesota in 2017 and lived with appellant for appr oximately six
3
months. The complaining witnesses were seven and four years old when they arrived from
Honduras.
Each of the complaining witnesses testified at trial and described the alleged sexual
abuse. The older child testified that appellant began abusing him shortly after he moved
to Minnesota. The older child disclosed the alleged abuse to his mother in September 2020.
The younger child testified that appellant began abusing him when he turned seven or eight
years old. The younger child disclosed the alleged abuse to his mother around February
2021.
The children’s mother did not immediately report the older child’s accusation to the
police. Instead, when she took him to see a doctor over four months later in February 2021,
the child told the doctor that his grandfather had sexually abused him. A report was made
to child-protection services and law enforcement.
The children’s mother testified regarding each child’s initial disclosure of the
alleged abuse and the additional disclosures that each had made over time. The children
were interviewed by professionals regarding their allegations, the interviews were
recorded, and the recordings were received as evidence at trial. An expert witness on child
sexual abuse testified about delayed and incremental disclosure, as well as grooming
behaviors.
As to the defense, appellant testified that his relationship with his daughter was
strained because of his absence during her childhood and his attention towards his wife’s
daughters. Appellant said that his daughter stormed out of a family Thanksgiving
4
celebration in 2019 and threatened to ruin him and his reputation. Appellant denied
sexually abusing the children.
Appellant’s former son-in-law testified that appellant is honorable and truthful. He
also testified that he was present at the 2019 Thanksgiving celebration and confirmed that
appellant’s daughter threatened to ruin appellant’s reputation and family.
Appellant’s defense focused heavily on the children’s credibility, as did closing
arguments. The prosecutor began his rebuttal closing argument by stating: “The
presumption of innocence is gone. [ The children’s] credible testimony proves this case
beyond a reasonable doubt.”
The jury found appellant guilty as charged. The district court entered judgments of
conviction on two counts of first-degree criminal sexual conduct and imposed consecutive
executed prison sentences of 172 months.
This appeal followed.
DECISION
Because the outcome of this case is controlled by the Minnesota Supreme Court’s
recent decision in Portillo, which was decided after the trial in this case, we begin with an
overview of that decision. The Portillo defendant was charged with and convicted of
criminal sexual conduct for sexually abusing a child over a number of years. 998 N.W.2d
at 245-46. The state began its rebuttal closing argument as follows:
The presumption of innocence comes with an individual
accused, unless and until the state proves its case beyond a
reasonable doubt. [Defense counsel] correctly told you that.
But it leaves him when the state has proven its case beyond a
reasonable doubt. He no longer has that presumption. You’ve
5
heard all the evidence. You’ve heard all of the state ’s case
against Mr. Portillo. He no longer has that presumption of
innocence. He has been proven guilty beyond a reasonable
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. at 246-47 (emphases added). Portillo did not object to the state’s argument in district
court. Id. at 247. Instead, he challenged the argument as prosecutorial misconduct on
appeal. Id.
The Portillo court applied the four-step modified plain-error standard of review that
applies to claims of unobjected -to prosecutorial misconduct , as articulated in State v.
Ramey, 721 N.W.2d 294 (Minn. 2006). Id. at 248. Under that standard, the defendant
must demonstrate that the alleged misconduct constitutes “(1) error, (2) that was plain.”
Id. (quotation omitted). An error is “plain” if it “contravenes case law, a rule, or a standard
of conduct.” Id. at 250 (quotation omitted). If the defendant establishes an error that is
plain, “the burden then shifts to the [s]tate,” under the third step, “to demonstrate that the
error did not affect the defendant ’s substantial rights.” Id. at 248 (quotation omitted). In
assessing that factor, we ask “whether there is a reasonable likelihood that the prosecutor’s
error had a significant effect on the verdict,” and “we consider the strength of the evidence
against the defendant, the pervasiveness of the improper suggestions, and whether the
defendant had an opportunity to (or made efforts to) rebut the improper suggestions.” Id.
at 251-52 (quotation omitted). If the state fails to meet its burden, we proceed to the fourth
step of the test and determine “whether the error should be addressed to ensure fairness and
the integrity of the judicial proceedings.” Id. at 248 (quotation omitted).
6
The Portillo court began its analysis with a recognition that “[i]t is axiomatic that
criminal defendants are presumed innocent until proven guilty beyond a reasonable doubt.”
Id. at 248-49. “Moreover, it has long been held that one accused of crime has the right to
have the jury take the presumption of innocence to the jury room with them as the voice of
the law.” Id. at 249 (quotations omitted). The Portillo court stated that the prosecutor’s
statement during rebuttal was inconsistent with Minnesota law because the prosecutor
“erroneously suggested that Portillo, at the time the prosecutor made this statement, had
been proven guilty beyond a reasonable doubt and was therefore no longer entitled to the
presumption of innocence. ” Id. at 250 (emphasis omitted). The supreme court clarified
that “[a] defendant is only proven guilty beyond a reasonable doubt, however, when the
jury has deliberated and reached that conclusion, not before.” Id.; see Moore v. State, 945
N.W.2d 421, 434 (Minn. App. 2020) (“[O]nly once the jury reaches the conclusion that a
defendant is guilty beyond a reasonable doubt has the presumption [of innocence] been
lost.”), rev. denied (Minn. Aug. 11, 2020).
The Portillo court was very clear regarding its reasoning:
The prosecutor told the jury, during the [s]tate’s
closing-argument rebuttal, that Portillo no longer had the
presumption of innocence before the jury began deliberating.
Because this assertion is not correct and is contrary to the
constitutional protections afforded criminal defendants under
the U.S. and Minnesota Constitutions, we conclude that the
prosecutor’s statement was an error.

998 N.W.2d at 250.
The Portillo court rejected the state’s argument that the error was not plain,
reasoning:
7
Our court has made clear that the presumption of
innocence is a fundamental component of a fair trial under our
criminal justice system, a bedrock axiomatic and elementary
principle whose enforcement lies at the foundation of the
administration of our criminal law. Only once a defendant has
been afforded a fair trial and convicted of the offense for which
he was charged does the presumption disappear. None of the
decisions that the [s]tate cites to support its position—namely,
that the law is unsettled with regard to how far a prosecutor can
go in saying that a defendant has lost the presumption of
innocence prior to a jury ’s deliberations —approved of
language that corresponds with the language that the
prosecutor used here.

Id. at 251 (quotations and citations omitted).
As to the third step of the modified plain -error standard, the Portillo court
determined that the state did not meet its burden t o “show 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.” Id. at 251, 254 (quotations omitted). The supreme court
reasoned:
We agree with Portillo that the evidence of guilt here
was not strong. Portillo is correct that the allegations are based
solely on the testimony of J.G. without any corroborating
testimony, physical evidence, or other witnesses to the abuse.
Moreover, the testimony at trial was given more than 10 years
after the alleged conduct occurred. Portillo also correctly notes
that J.G.’s statements regarding the abuse have been
inconsistent on several occasions.

Id. at 252 (footnote omitted). The supreme court explained that “[c]ases in which our court
has concluded that the evidence against a defendant was strong enough to counteract any
alleged prosecutorial errors have tended to show more than the evidence here.” Id. It also
emphasized that the “strength of the case is not determinative, and prosecutorial error may
8
deprive a defendant of a fair trial even in a case in which the evidence of guilt is strong.”
Id. at 253.
The Portillo court acknowledged that the prosecutor’s misstatement occurred three
times in just over “half a page of the six -page rebuttal and the 20 -page total closing
argument,” but it noted that the misstatements occurred during the state’s rebuttal closing
argument and “were part of the last argument that the jury heard before the district court
gave the jury its final instructions.” Id. The supreme court determined that the district
court’s final instructions were insufficient to remedy any prejudice that the misstatements
caused, reasoning that
although the district court ’s instruction on the presumption of
innocence was a correct statement of the law, the instruction
did not contradict or otherwise instruct the jury to ignore the
prosecutor’s misstatement that Portillo had already lost the
presumption of innocence before deliberations. In other
words, the district court ’s statement that “[t]he presumption
remains with the defendant unless and until the defendant has
been proven guilty beyond a reasonable doubt” does not
obviously and clearly correct the prosecutor ’s erroneous
statement that Po rtillo “has been proven guilty beyond a
reasonable doubt . . . . [H]e no longer has that presumption of
innocence.”

Id. at 254 (emphasis omitted).
The Portillo court’s reasoning was clear:
On balance, although the prosecutor ’s misstatement
may not have been in bad faith or pervasive, the [s]tate cannot
meet its burden of showing 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.”
Ramey, 721 N.W.2d at 302 (citation omitted) (internal
quotation marks omitted). The [s]tate’s case against Portillo
was not strong, the misstatement occurred at the end of closing
9
argument just prior to jury instructions and deliberations, and
the district court’s instructions did not correct the prosecutor’s
misstatement of the presumption of innocence. Thus, a
reasonable likelihood exists that the prosecutor’s misstatement
may have had a significant effect on the verdict of the jury.

Id. (citing Estelle v. Williams, 425 U.S. 501, 504 (1976) (“The actual impact of a particular
practice on the judgment of jurors cannot always be fully determined. But this Court has
left no doubt that the probability of deleterious effects on fundamental rights calls for close
judicial scrutiny.”)).
Finally, as to the fourth part of the modified plain -error test, the Portillo court held
that reversal was required to preserve the fairness and integrity of the judicial proceedings.
Id. at 256. The supreme court noted that the “pivotal question is whether addressing the
prosecutorial error will serve to enforce the constitutional protections afforded to all
criminal defendants.” Id. at 255. The court explained that “[t]he uncorrected, erroneous
statement that Portillo was not entitled to the presumption of innocence as the jury
deliberated deprived Portillo of the ability to present his defense and have the charges
against him considered under the proper, correct instructions.” Id. at 256. The court stated
that if such errors were “[l]eft unchecked,” they would “have a substantial and deleterious
effect on future trials and undercut the historic standard of proof imposed on the [s]tate in
criminal trials.” Id. (quotation omitted). “Consequently, Portillo [was] entitled to a new
trial.” Id.
Because the relevant circumstances in this case are not meaningfully distinguishable
from those in Portillo, our application of the modified plain-error standard of review results
in the same outcome: appellant is entitled to a new trial.
10

Error that is Plain
The state’s remark that “[t]he presumption of innocence is gone” constitutes plain
error under Portillo because it erroneously suggested that appellant had lost the
presumption of innocence prior to any jury deliberations regarding his guilt. See id. at 250
(finding plain error because “[a] defendant is only proven guilty beyond a reasonable
doubt . . . when the jury has deliberated and reached that conclusion, not before”).
The state argues that the prosecutor’s statement here is more like the statements
found not to be plain error in State v. Young, 710 N.W.2d 272 (Minn. 2006), and State v.
Vue, 797 N.W.2d 5 (Minn. 2011). But the Portillo court distinguished both of those cases,
and those distinctions apply here. Id. at 249-51.
As to Young, the Portillo court noted that the prosecutor “never explicitly mentioned
the presumption of innocence in the portion of the [s]tate’s closing argument at issue; even
in the context of the argument as a whole, the prosecutor only stated that the evidence was
sufficient to find the defendant guilty, so ‘[h]e’s no long[er] an innocent man.’” Id. at 249-
50 (quoting Young, 710 N.W.2d at 280) . Unlike the circumstances in Young and like the
circumstances in Portillo, the prosecutor in this case expr essly told the jury that “[t]he
presumption of innocence is gone” before the jury began its deliberations.
As to Vue, the prosecutor in that case argued that the defendant “has now lost that
presumption of innocence as a result of the evidence that you have heard.” 797 N.W.2d at
13. The Portillo court distinguished this statement , explaining that the Vue prosecutor
essentially argued t hat the state “had produced sufficient evidence to overcome the
11
presumption” rather than argued “that the defendant was not entitled to the presumption.”
998 N.W.2d at 251 (quotation omitted). Because the prosecutor ’s statement in this case
that “[t]he presumption of innocence is gone” is virtually identical to the prosecutor ’s
statement in Portillo that the defendant “no longer has th[e] presumption of innocence,”
we conclude that the statement here was plainly erroneous under Portillo, regardless of the
outcome in Vue. Id. at 250 (“ An error is plain if it contraven es a principle that is
conclusively resolved at the time of appeal.” (quotation omitted)).
This court’s nonprecedential decisions applying Portillo are instructive as to
application of Portillo. See Minn. R. Civ. App. P. 136.01, subd. 1(c) (stating that, although
nonbinding, “nonprecedential opinions may be cited as persuasive authority”). For
example, in State v. Perez-Robles, we concluded that a prosecutor misstated the burden of
proof in his rebuttal closing argument by stating, “[t]he presumption of innocence is gone”
and that the misstatement constituted plain error that require d reversal under Portillo.
No. A23-1216, 2024 WL 3877492, at *1 (Minn. App. Aug. 19, 2024). We reasoned that
the misstatement in Perez-Robles was “virtually indistinguishable from the statements the
supreme court deemed to be plain error in Portillo.” Id. at *3. In this case, the challenged
statement is identical to the rebuttal argument justifying reversal in Perez-Robles, and we
discern no reason for a different outcome in this case.
Conversely, in State v. Johnson , we rejected a defendant’s argument that the
prosecutor plainly erred by misstating the presumption of innocence during closing
argument. No. A23 -1196, 2024 WL 3407693, at *3 ( Minn. App. July 15, 2024), rev.
denied (Minn. Oct. 15, 2024). The Johnson prosecutor argued in closing that “as the
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[j]udge instructed you” the defendant is “presumed innocent of [the] charges. But that
presumption only remains with her until the [s]tate 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.” Id.
In concluding that the prosecutor’s argument in Johnson did not constitute plain
error under Portillo, we reasoned that “the prosecutor did not assert that Johnson was not
entitled to the presumption at the time of closing arguments.” Id. Instead, “the prosecutor
stated that . . . the presumption does not remain when the state proves the essential
elements beyond a reasonable doubt.” Id. The statement in this case is readily
distinguishable from the one in Johnson. The prosecutor here did not argue that appellant
retained the presumption of innocence until such time as the jury determined, beyond a
reasonable doubt, that the state had proved his guilt. Instead, the prosecutor here informed
the jury that “[t]he presumption of innocence is gone,” indicating that the presumption was
inapplicable during the jury’s deliberations.
We also rejected a Portillo challenge in State v. Shines. No. A23-1794, 2024 WL
4344953, at *5-7 (Minn. App. Sept. 30, 2024), petition for rev. filed (Minn. Oct. 30, 2024).
In closing argument in that case, the prosecutor described the presumption of innocence as
a “legal default position that the defendant is presumed innocent unless and until you
determine that the [s]tate has proven its case beyond a reasonable doubt.” Id. at *6. We
concluded that the state’s argument did “not rise to the level of misstatement that the
supreme court rebuffed in Portillo,” reasoning:
13
The prosecutor did not assert that Shines was not entitled to the
presumption of innocence before the jury began deliberating.
Instead, the prosecutor stated that Shines “is presumed
innocent unless and until you determine that the [s]tate has
proven its case beyond a reasonable doubt.”

Id. The prosecutor’s argument was acceptable under Portillo because “the prosecutor did
not assert that Shines was no longer entitled to the presumption of innocence at the time of
the prosecutor’s closing argument .” Id. Once again, this case is distinguishable because
the prosecutor here explicitly told the jury, in rebuttal argument, that “[t]he presumption of
innocence [was] gone” before the jury began its deliberations.
In sum, Portillo establishes that it is plain error for a prosecutor to argue that a
defendant has lost the presumption of innocence prior to jury deliberations. U nder the
reasoning of Portillo, and consistent with our nonprecedential decisions applying Portillo,
we conclude that the prosecutor erroneously stated that appellant had lost the presumption
of innocence prior to jury deliberations and that the error was plain.
Affects Substantial Rights
We next consider whether the state has established that there is no reasonable
likelihood that the prosecutor ’s error had a significant effect on the verdict . See Portillo,
998 N.W.2d at 251. The state argues that it has met its burden for these reasons: (1) it
presented a strong case, (2) its statement regarding the presumption of innocence was not
pervasive, (3) the district court correctly instructed the jury regarding the presumption of
innocence, and (4) appellant was given the opportunity to rebut the prosecutor’s statement
regarding the presumption of innocence.
14
As to the strength of the state’s case, the state concedes that the complaining
witnesses’ credibility was central and argues that “[i]f the jury credited the victims’
testimony, the case simply was not a close call.” The state further argues that “[i]f the jury
credited the victims’ testimony, the evidence of [a]ppellant ‘repeatedly sexually abus[ing]
those two boys over and over’ was significant.” Finally, the state notes that the “jury’s
verdicts show the jury found the victims’ testimony credible.” The state’s argument on
this point is not persuasive because it does not recognize that the presumption of innocence
could have impacted the jury’s credibility determination s. See State v. Peterson , 673
N.W.2d 482, 48 6-87 (Minn. 2004) (stating that the “reasonable doubt standard of proof
provides concrete substance for the presumption of innocence,” and “a misdescription of
the burden of proof . . . vitiates all the jury’s findings, leaving the reviewing court only to
speculate on its own as to what a reasonable jury would have done” (quotations omitted)).
Indeed, t he Portillo court was not swayed by the state’s argument that the jury
“clearly found [the alleged victim] to be credible” and that its credibility determination was
entitled to deference. 998 N.W.2d at 252. Instead, the Portillo court determined that the
evidence of guilt was not strong. Id. It noted that the child-sexual-abuse allegations were
based solely on the testimony of the alleged victim, “without any corroborating testimony,
physical evidence, or other witnesses to the abuse.” Id. The Portillo court also noted that
the alleged victim’s testimony at trial was given “more than 10 years” after the alleged
abuse occurred and that the alleged victim’s statements regarding the abuse had been
inconsistent on several occasions. Id.
15
Although the child-sex-abuse allegations in this case regarded conduct that
allegedly occurred closer in time to trial , the convictions here heavily depended on the
complaining witnesses’ credibility. Like the circumstances in Portillo—and as is often the
case in a prosecut ion for child sexual abuse —there were no firsthand witnesses to the
alleged sexual assaults and no physical evidence. We have considered that the jury in this
case heard testimony from two alleged child victims and that the y reported similar sexual
misconduct by appellant. But given the Portillo court’s reminder that “strength of the case
is not determinative, and prosecutorial error may deprive a defendant of a fair trial even in
a case in which the evidence of guilt is strong,” we are not persuaded that the strength of
the state’s case here is adequate to establish that it is unlikely that the error impacted the
verdict. Id. at 253.
As to the pervasiveness of the prosecutor’s error in this case, we agree with the state
that the error was not pervasive. Unlike the Portillo prosecutor, who thrice said during
rebuttal argument that Portillo no longer had the presumption of innocence, the prosecutor
in this case made the erroneous statement only once. However, like the circumstances in
Portillo, the district court’s instructions regarding the presumption of innocence were
inadequate to correct the prosecutor’s misstatement of the relevant constitutional principle.
As explained in Portillo:
Moreover, although the district court ’s instruction on
the presumption of innocence was a correct statement of the
law, the instruction did not contradict or otherwise instruct the
jury to ignore the prosecutor ’s misstatement that Portillo had
already lost the presumption of innocence before
deliberations. In other words, the district court’s statement that
“[t]he presumption remains with the defendant unless and until
16
the defendant has been proven guilty beyond a reasonable
doubt” does not obviously and clearly correct the prosecutor’s
erroneous statement that Portillo “has been proven guilty
beyond a reasonable doubt . . . . [H]e no longer has that
presumption of innocence.”

Id. at 254 (emphasis added). The Portillo court emphasized that a standard instruction
regarding the presumption of innocence could not cure the prosecutor’s erroneous
statement that the defendant had lost the presumption prior to jury deliberations ,
explaining:
[T]he instructions given by the district court failed to properly
counter the prosecutor ’s misstatement of the law. The jury
instructions given by the district court were a generic recitation
of black-letter law and lacked sufficient specificity to cure that
error. To put it more directly, the instructions never mention
the prosecutorial error regarding the fundamental principle of
the presumption of innocence and fail to tell the jury to
disregard the prosecutor ’s statement that the defendant no
longer was entitled to the presumption of innocence.

Id. at 255. Thus, “the jury instructions did not correct the prosecutor’s misstatement.” Id.
Finally, we are not persuaded by the state’s argument s that appellant had “the
opportunity to rebut the improper suggestion but chose not to do so” and that appellant “did
not raise any objections and did not request any curative instructions regarding the
presumption of innocence.” The same could have been said of the Portillo defendant. But
the supreme court did not do so and instead stated:
On balance, although the prosecutor ’s misstatement
may not have been in bad faith or pervasive, the [s]tate cannot
meet its burden of showing 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.”
Ramey, 721 N.W.2d at 302 (citation omitted) (internal
quotation marks omitted). The [s]tate’s case against Portillo
17
was not strong, the misstatement occurred at the end of closing
argument just prior to jury instructions and deliberations, and
the district court’s instructions did not correct the prosecutor’s
misstatement of the presumption of innocence. Thus, a
reasonable likelihood exists that the prosecutor’s misstatement
may have had a significant effect on the verdict of the jury. See
Estelle[, 425 U.S. at 504] (“The actual impact of a particular
practice on the judgment of jurors cannot always be fully
determined. But this Court has left no doubt that the
probability of deleterious effects on fundamental rights calls
for close judicial scrutiny.”).

Id. at 254.
On balance, we do not discern a meaningful way to distinguish the circumstances
of this case from those in Portillo when applying the third part of the modified plain-error
test. We therefore conclude that t he prosecutor’s misstatement likely affected the jury’s
verdict because it invited the jury to deliberate without giving appellant the benefit of the
presumption of innocence.
Fairness and Integrity of Judicial Proceedings
Having concluded that the prosecutor plainly erred and that the state has not shown
that there is no reasonable likelihood that the prosecutor’s error had a significant effect on
the verdict, we next consider the final part of the modified plain -error test: “whether the
error should be addressed to ensure fairness and the integrity of the judicial proceedings.”
Id. at 255 (quotation omitted).
Appellant argues that we must address the error “because it implicates the principles
of due process and affects the public’s trust in whether a defendant can receive a fair trial.”
The state does not address this factor.
The Portillo court found a need to address the error, explaining:
18
Ultimately, we conclude that the prosecutorial error
here must be addressed to ensure the fairness and integrity of
judicial proceedings. The [s]tate, as noted above, has failed to
show that there is no reasonable likelihood that the
prosecutor’s misstatement did not affect the jury’s verdict, and
the error in misstating the presumption of innocence strikes at
that bedrock axiomatic and elementary principle whose
enforcement lies at the foundation of the administration of our
criminal law. When there is a reasonable likelihood that but
for the error, the result would be different, affirming Portillo’s
conviction would adversely affect the public ’s confidence in
the fairness and integrity of judicial proceedings. Fairness
requires that a defendant be given an opportunity to present his
account to a jury under the proper instructions. The
uncorrected, erroneous statement that Portillo was not enti tled
to the presumption of innocence as the jury deliberated
deprived Portillo of the ability to present his defense and have
the charges against him considered under the proper, correct
instructions. Left unchecked, such errors would also have a
substantial and deleterious effect on future trials and undercut
the historic standard of proof imposed on the [s]tate in criminal
trials. Consequently, Portillo is entitled to a new trial.

Id. at 256 (quotations and citations omitted).
Once again, we do not discern—and the state has not suggested—a principled basis
to reach a different conclusion in this case. We therefore conclude that the prosecutor’s
error should be addressed to ensure fairness and the integrity of judicial proceedings. Thus,
we reverse and remand for a new trial, without addressing appellant’s second argument
that the district court committed prejudicial plain error by admitting multiple recorded
interviews with the complaining witnesses. We also do not address the assertions in
appellant’s pro se brief, which do not establish an additional basis for relief. See Brooks v.
State, 897 N.W.2d 811, 818 (Minn. App. 2017) (“An assignment of error based on mere
19
assertion and not supported by legal authority or argument is waived unless prejudicial
error is obvious on mere inspection.”), rev. denied (Minn. Aug. 8, 2017).
In conclusion, we acknowledge that our decision will likely cause distress to the
complainants and their family. But the Portillo court has clearly spoken regarding the
circumstances that necessitate a new trial based on a prosecutor’s erroneous closing-
argument rebuttal statement regarding the presumption of innocence . The circumstances
here align with those in Portillo, and we are obligated to follow the law. See State v. Curtis,
921 N.W.2d 342, 343 (Minn. 2018) (“ The court of appeals is bound by supreme court
precedent.”).
Reversed and remanded.