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This opinion is nonprecedential except as provided by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
A24-0243

State of Minnesota,
Respondent,

vs.

Romaine Temor-Lemarc Johnson,
Appellant.

Filed February 24, 2025
Affirmed
Worke, Judge

Hennepin County District Court
File No. 27-CR-23-9146

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

Mary F. Moriarty, Hennepin County Attorney, Nicole Cornale, Assistant County Attorney,
Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Anders J. Erickson, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Bentley, Presiding Judge; Worke, Judge; and Slieter,
Judge.
NONPRECEDENTIAL OPINION
WORKE, Judge
Appellant challenges his convictions for second-degree assault and unlawful
possession of a firearm, arguing that the prosecutor committed misconduct by accusing
appellant of tailoring his testimony to the state’s evidence. We affirm.
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FACTS
In April 2023, police officers responded to a shooting and found A.L. with multiple
gunshot wounds. Their investigation led them to the nearby apartment of L.B., with whom
A.L. was acquainted. At L.B.’s building, officers observed bullet holes in the exterior door
and spent bullet casings in the hallway and on the floor inside L.B.’s apartment. Officers
found appellant Romaine Temor -Lemarc Johnson in a bedroom and placed him under
arrest. Officers found a firearm hidden in the apartment that matched the caliber of the
spent bullet casings. Johnson’s DNA matched the major DNA profile on the firearm.
Johnson was charged with attempted murder, second- degree assault, and unlawful
possession of a firearm.
At trial, Johnson initially advanced an alternative-perpetrator defense. In his
opening statement, he argued that it would have been easy for someone else to have shot
A.L. and escape before first responders arrived. Johnson also suggested that the DNA
evidence was unreliable.
The state called L.B. and A.L. as witnesses. L.B. testified that she heard A.L. and
Johnson arguing but did not witness the shooting. She also testified that she told police
that “Johnson had a gun” that night.
It was unclear whether A.L. could testify because he was recovering from his
wounds, but on the second day of trial, A.L. appeared to testify. Immediately prior to A.L.
taking the stand, Johnson abandoned his alternative-perpetrator defense and notified the
district court that he intended to assert self-defense. The district court noted that the late
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disclosure was prejudicial to the state’s case, but took the request for a self-defense jury
instruction under advisement.
A.L. testified that he had been staying at L.B.’s apartment and was asleep when
Johnson arrived. He testified that when he awoke, Johnson threatened him with a gun, and
when he attempted to leave, Johnson shot him.
Johnson testified that he arrived at L.B.’s apartment unarmed. He testified that L.B.
and A.L. were arguing, and that when he intervened, A.L. reached for a gun in his
waistband. Johnson stated that he slammed A.L. against a wall. As they struggled over
the gun, a shot was fired, and Johnson realized that A.L. had shot himself. Johnson pulled
the gun out of A.L.’s hand and fired shots at A.L. as A.L. ran out of the building.
Prior to closing statements, the state moved the district court for permission to argue
that Johnson tailored his testimony to the state’s evidence. Johnson objected. The district
court granted the state’s request and granted Johnson’s request for a self-defense jury
instruction.
The state argued in closing:
[Johnson’s] defense came out of nowhere during the
trial. Nobody . . . expected that we were going to be able to get
[A.L.] to come into this courtroom and testify. . . . We
prepared and anticipated a largely circumstantial case, without
the direct evidence of the victim . . . . But you know what, he
showed up.
The only other person in that room that night showed
up. [A.L.] identified [Johnson] as the shooter and that’s when
it became a self-defense case all of a sudden. Think about that.
Think about how the evidence presented during this trial varied
from what we all expected and how they responded, how his
story changed, how the defense changed.
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Once [Johnson] knew that the only other person in that
room was going to come in here and testify about what
happened, all of a sudden, it’s a self-defense case. What does
that mean? It undermines the credibility of the self-defense
claim.

In his closing, Johnson claimed that he did not initially assert self-defense because
he did not want to be labeled a snitch.
The jury found Johnson guilty of second-degree assault and unlawful possession of
a firearm, and not guilty of attempted murder. The district court imposed concurrent prison
sentences of 132 months for the unlawful possession conviction and 71 months for the
assault conviction. This appeal followed.
DECISION
Johnson argues that the prosecutor committed misconduct by suggesting that
Johnson tailored his defense to fit the state’s evidence.
We review objected-to prosecutorial misconduct for harmless error, and we will not
reverse a conviction if the misconduct was harmless beyond a reasonable doubt. State v.
Swanson, 707 N.W.2d 645, 658 (Minn. 2006). “[M]isconduct is harmless beyond a
reasonable doubt if the verdict rendered is surely unattributable to the error.” State v. Hunt,
615 N.W.2d 294, 302 (Minn. 2000).
Tailoring occurs when a defendant shapes his testimony to fit the state’s version of
the case. State v. Leutschaft, 759 N.W.2d 414, 419 (Minn. App. 2009), rev. denied (Minn.
Mar. 17, 2009). Tailored testimony is “fair game for attack,” id., because “[a] defendant’s
credibility is subject to impeachment . . . once the defendant takes the stand and testifies.”
Swanson, 707 N.W.2d at 657 (Minn. 2006). But a defendant has the right under the
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Confrontation Clause to be present at trial and hear the testimony against him. Id. It is
prosecutorial misconduct to “use a defendant’s exercise of his right of confrontation to
impeach the credibility of his testimony,” unless the state has evidence that a defendant
tailored his testimony to the state’s case. Id. at 657-58.
Because the state does not dispute that the prosecutor accused Johnson of tailoring
his testimony, we turn directly to the question of whether there was sufficient evidence to
justify the accusation.
To justify a tailoring accusation, the state must cite “specific evidence” that
demonstrates a “fit” between the defendant’s testimony and the state’s evidence against
him. Id. Evidence of tailoring exists when a defendant significantly changes his version
of events after hearing the state’s evidence against him. State v. Ferguson, 729 N.W.2d
604, 617 (Minn. App. 2007), rev. denied (Minn. June 19, 2007).
The state argues that there was sufficient evidence to accuse Johnson of tailoring
his testimony, and we agree. The record reflects that Johnson initially advanced an
alternative-perpetrator defense. Then, after hearing L.B.’s damaging testimony, and
learning that A.L. planned to testify, Johnson changed his story and admitted, for the first
time, that he was involved in A.L.’s shooting. That version of events differs significantly
from Johnson’s original version, and it also fit s the state’s evidence against him. In fact,
self-defense appears to be the only plausible explanation that Johnson could offer to rebut
the fact that he was found at the scene of the crime, that the major DNA profile on the gun
matched his own, that A.L. identified him as the shooter, and that L.B. told police that
Johnson had a gun.
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Johnson does not challenge the state’s tailoring evidence, arguing instead that when
a district court grants a defendant’s request to assert self-defense, the state is then precluded
from arguing that the defendant has tailored his testimony. Johnson offers no authority for
his claim and asks this court to adopt it as a new rule of law. As an error-correcting court,
that is not our role. See Lake George Park, L.L.C. v. IBM Mid-Am . Emps. Fed. Credit
Union, 576 N.W.2d 463, 466 (Minn. App. 1998), rev. denied (Minn. June 17, 1998).
However, even if the prosecutor’s tailoring accusation did constitute misconduct,
we conclude that it was harmless beyond a reasonable doubt. To determine whether
misconduct was harmless beyond a reasonable doubt, we consider, among other things, the
strength of the other evidence supporting the verdict, whether the state’s argument was
emphasized, and whether the defendant countered it. State v. Whitson, 876 N.W.2d 297,
304 (Minn. 2016). Here, the prosecutor limited the tailoring accusation to a few paragraphs
in closing argument, Johnson countered it in his closing argument, and the evidence against
Johnson was strong.
Finally, the holding in Swanson serves to safeguard a defendant’s rights under the
Confrontation Clause, and the record in this case demonstrates that the parties were
cognizant of those rights and took steps to uphold them. The prosecutor sought the district
court’s permission before making the tailoring accusation ; defense counsel preserved the
issue through timely objection; and the district court deliberated on the prosecutor’s
request, ultimately providing a well-reasoned decision consistent with caselaw.
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Because there was specific evidence that Johnson tailored his testimony to fit the
state’s evidence against him, we conclude that the prosecutor did not commit misconduct.
Affirmed.