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This opinion is nonprecedential except as provided by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
A24-0311

State of Minnesota,
Respondent,

vs.

Richard Preston Blackwell,
Appellant.

Filed February 10, 2025
Affirmed
Bentley, Judge

Ramsey County District Court
File No. 62SU-CR-22-3767

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

Douglas R. Biglow, Roseville City Attorney, Erickson, Bell, Beckman, and Quinn PA,
Roseville, Minnesota (for respondent)

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

Considered and decided by Slieter, Presiding Judge; Larson, Judge; and Bentley,
Judge.
NONPRECEDENTIAL OPINION
BENTLEY, Judge
In this direct appeal from a judgment of conviction for misdemeanor disorderly
conduct and misdemeanor fifth -degree assault, appellant argues that his convictions must
be reversed for insufficient evidence that he did not act in self-defense. Alternatively, he
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argues that he is entitled to a new trial because the prosecutor committed plain-error
misconduct by eliciting vouching and ultimate-issue testimony from a police officer. We
conclude that the evidence was sufficient to support the convictions and, although we agree
that the prosecutor engaged in misconduct rising to the level of plain error, the error did
not affect appellant’s substantial rights. We therefore affirm.
FACTS
The following relevant facts were elicited at a jury trial in which appellant Richard
Preston Blackwell represented himself.
On the day of the incident, 70-year-old D.T. had just finished playing chess with a
friend at the Roseville Library. They sat at a table near a window on the second floor in a
common area shared with other patrons, including Blackwell. While the players were
discussing their chess game, Blackwell brought over a chair and sat right next to them.
Blackwell told D.T. and his friend that they were bothering him. Video footage recorded
on Blackwell’s cellphone reveals that the chess players expressed confusion over the
confrontation. They told Blackwell that if they had bothered him by talking too loudly, it
was unintentional. Blackwell responded, “You’re trying to bother m e, I’ma bother you,”
and, “Clearly you’re doing it on purpose.” As the conversation escalated, D.T. told
Blackwell to “[g]et the f--k out of here” and started to call for support from library staff.
Library surveillance video shows that, at about this time, D.T. stood up, grabbed his jacket,
and turned to leave. The verbal altercation persisted, and when Blackwell said that he was
recording the conversation, D.T. turned back and slapped the phone out of Blackwell’s
hand.
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Library surveillance footage shows that D.T. had again started to turn away when
Blackwell struck D.T. in the head. D.T. described Blackwell’s blow as a “mule kick” and
testified that he had “never been hit that hard.” Blackwell continued to hit D.T.’s face and
other parts of his body “[s]everal times” as D.T. eventually fell to the floor. D.T. testified
that his upper body was bruised, “[his] face was pretty beat up,” and he “couldn’t see for
several minutes.” A photo of D.T. after the incident shows that he had a bruised eye, a
bloody nose, and a bloodied face.
The state charged Blackwell with one count of fifth-degree assault in violation of
Minn. Stat. § 609.224.1(2) (2022), and one count of disorderly conduct in violation of
Minn. Stat. § 609.72, subd. 1(1) (2022). At trial, the state called one of the officers who
interviewed D.T. and other witnesses after the incident. When the prosecutor asked if the
officer’s experience made him “acquainted with whether people are telling . . . the truth or
not,” the officer said yes. The prosecutor then asked if the officer believed that D.T. and
the other witnesses had been truthful:
Q: The individuals that you spoke with on December 14th, did
you form an opinion on whether or not they were being
truthful?

A: I did.

Q: Would you say they were or were not?

A: Yes. . . . [D.T.] alleged that he’d been assaulted. Based on
what he said, what his witness said; the injuries that I directly
witnessed that he had sustained; I would say his claim that he
had been involved in a violent altercation, been assaulted[,] I
had no reason to disbelieve it.

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Q: Okay. What about the other individuals that you spoke to?
Did they display either truthful or nontruthful accounts?

A: Yes. I believe they were being accurate in what they
witnessed and I don’t know of any reason why they would’ve
had to have told me something that was not true.

The officer also testified about his own characterization of what happened and Blackwell’s
credibility:
Q: Did you have enough interaction with the defendant to
form a belief on whether he was being truthful or not?

A: As far as the extent of his story I did not—I was not the one
directly interviewing him, as I said, when I first got there. So,
I did not get his full story. But I would say based on everything
I’d seen, it was very clear that when this incident occurred there
was an assailant and there was a victim; and that [D.T.] was the
victim and that [Blackwell] was the assailant. And this did not
appear to be a case of mutual combatants.

Q: Why do you say that?

A: Because, like I said, [Blackwell] had no apparent injuries.
Did not seem to be upset. And based upon what I had gleaned
from the independent witnesses at the library, and from what
[D.T.] and his friend’s statement was, it was apparent to me
that this was a one-way incident. That this was an assault
directed against the victim. This was not something where they
engaged in mutual—mutual sparring.

Q: And, again, . . . who would you say in your investigation
was the assailant?

A: That’d be [Blackwell].

During closing arguments, the prosecutor referenced the officer’s testimony “[t]hat
he came; he interviewed some individuals; and in his 28 years of experience, applying it to
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the information that he gathered, it was his determination that Mr. Blackwell had assaulted
[D.T.]; and that this was not a usual fight.”
After a four-day trial, the district court instructed the jury, including on the issue of
self-defense.1 The jury found Blackwell guilty of disorderly conduct and fifth-degree
assault. The district court entered a judgment of conviction on both counts and then
sentenced Blackwell only on the assault conviction to 45 days’ incarceration.
Blackwell appeals.
DECISION
Blackwell argues that there was insufficient evidence for the jury to find that the
state disproved any of the elements of his self-defense claim. He also argues that he is
entitled to a new trial because the prosecutor elicited vouching and ultimate-issue
testimony that constituted plain-error misconduct. We address each issue in turn.
I
We first consider Blackwell’s sufficiency-of-the-evidence challenge . The district
court concluded that Blackwell was entitled to a jury instruction on self-defense, which
required the state to disprove, beyond a reasonable doubt, at least one of the elements of
self-defense. State v. Basting, 572 N.W.2d 281, 285-86 (Minn. 1997); see also State v.
McKissic, 415 N.W.2d 341, 344 (Minn. App. 1987) (“The state need only prove the

1 Blackwell asserted self-defense with respect to both the assault and disorderly conduct
charges. A self-defense claim can apply to a disorderly conduct charge if the behavior
involves bodily harm or presents a threat of bodily harm. See State v. Soukup, 656 N.W.2d
424, 426 (Minn. App. 2003), rev. denied (Minn. Apr. 29, 2003).
6
absence of one element of self-defense to sustain a conviction.”). The elements of
self-defense are
(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 death or great 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.

Basting, 572 N.W.2d at 285.
Before we reach the merits of Blackwell’s argument, we briefly address the
applicable standard of review. A r eview for sufficiency of the evidence entails a
“painstaking analysis of the record to determine whether the evidence . . . was sufficient”
to support the jury’s verdict. State v. Kremmin, 889 N.W.2d 318, 320 (Minn. App. 2017)
(citing State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989)), rev. denied (Minn. Mar. 28,
2017). With respect to determinations of guilt based on direct evidence, as compared to
circumstantial evidence, appellate courts “view[] the evidence and any reasonable
inferences that could be drawn therefrom in a light most favorable to the state” and
determine whether “the jury could reasonably find the defendant guilty beyond a
reasonable doubt.” State v. Buchanan, 431 N.W.2d 542, 547 (Minn. 1988). In that analysis,
we “assume[] the jury believed the state’s witnesses and disbelieved evidence to the
contrary.” Id.
We apply the direct-evidence standard here because, if direct evidence is sufficient
to disprove an element of self-defense, an appellate court need not apply the heighted
standard of review that applies to determinations of guilt based on circumstantial evidence.
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See State v. Salyers, 858 N.W.2d 156, 160-61 (Minn. 2015). Considering the direct
evidence in the case, we conclude that the evidence is sufficient to disprove two of the
elements of self -defense: absence of aggression or provocation, and absence of a
reasonable possibility of retreat. That conclusion, as to either element, defeats Blackwell’s
argument for reversal. See McKissic, 415 N.W.2d at 344.
Absence of Aggression or Provocation
Generally, “[a]n aggressor in an incident has no right to a claim of self-defense.”
Bellcourt v. State, 390 N.W.2d 269, 272 (Minn. 1986). And if the defendant is the original
aggressor, the defense is available “only if he actually and in good faith withdraws from
the conflict and communicates that withdrawal, expressly or impliedly, to his intended
victim.” Id.
Blackwell first argues that there is insufficient evidence to prove that he was the
initial aggressor. Considering the direct evidence in the record, we disagree. D.T. testified
that Blackwell approached him before he had even noticed Blackwell and that Blackwell
said, “you’re bothering me,” unprompted. Blackwell testified that he “called [D.T. ] a
coward” and told him that “talk[ing] . . . behind a person’s back” was a “coward move,”
and that “rapists are cowards.” In the video from Blackwell’s cellphone, D.T. or his friend
can be heard telling Blackwell they do not know what he is talking about, asking if they
were talking too loudly, and saying that if they were, it was unintentional. Blackwell
responded to D.T. and his friend, “You’re trying to bother me, I’ma bother you,” and
“Clearly you’re doing it on purpose.” Assuming, as we must, that the jury believed D.T.
that Blackwell approached them unprompted and disbelieved Blackwell’s testimony that
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that he approached the chess players because he “had a feeling” that they intended to
provoke him, see Buchanan, 431 N.W.2d at 547, the jury reasonably could have concluded
beyond a reasonable doubt that Blackwell’s statements and conduct made him the initial
aggressor. Buchanan, 431 N.W.2d at 547; s ee also State v. Carridine, 812 N.W.2d 130,
144-45 (Minn. 2012) (suggesting that “initiat[ing] [a] verbal argument” can render
someone the initial aggressor).
Blackwell next argues that, even if he was the initial aggressor, the state failed to
disprove that he withdrew from the conflict and revived his right to self-defense. Again,
we disagree. Video footage shows that Blackwell did not withdraw, physically or verbally,
when D.T. and his friend asked in a nonconfrontational tone if they had been speaking too
loudly. Instead, Blackwell continued provok ing D.T., even after D.T. repeatedly asked
Blackwell to “get . . . out of here” and called for library staff to intervene. Blackwell
continued this conduct until D.T. knocked Blackwell’s phone out of his hand. At that point,
the interaction quickly escalated. Library surveillance footage shows that Blackwell did
not attempt to withdraw from the altercation at any point.
We conclude, considering the direct evidence presented at trial, that the jury
reasonably could have found beyond a reasonable doubt that Blackwell did not “actually
and in good faith withdraw[] from the conflict and communicate[] that withdrawal,
expressly or impliedly, to his intended victim.” Bellcourt, 390 N.W.2d at 272.
Absence of a Reasonable Possibility of Retreat
A valid self -defense claim requires “the absence of a reasonable possibility of retreat
to avoid the danger.” Basting, 572 N.W.2d at 285. A reasonable opportunity for safe retreat
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exists if there are “options for escape or avoidance of peril . . . rather than directly
confronting” someone. State v. Austin, 332 N.W.2d 21, 24 (Minn. 1983).
The direct evidence shows that Blackwell had multiple opportunities to retreat
safely but instead directly confronted D.T. T he video evidence shows that D.T. and his
friend remained nonconfrontational for almost 20 seconds after Blackwell initiated the
confrontation by approaching D.T.’s table. Blackwell could have reasonably retreated at
any point in that timeframe, including when D.T. told him to leave. The video also shows
that D.T. stood up and began to turn away, giving Blackwell another chance to retreat. And
the video shows that, after D.T. slapped the cellphone out of Blackwell’s hand, D.T. again
began to turn away, providing yet another opportunity for Blackwell to retreat. Instead of
retreating at any of these points, Blackwell struck D.T. multiple times, even after D.T. fell.
We conclude, based on direct evidence in the record, that the jury reasonably could have
found, beyond a reasonable doubt, that Blackwell had a reasonable possibility of retreat.
In sum, the evi dence was sufficient for a jury to find that the state disproved the first
and fourth elements of Blackwell’s self-defense claim beyond a reasonable doubt. Basting,
572 N.W.2d at 285. Our conclusion with respect to either of those elements means that the
evidence was sufficient to support the jury’s verdict. Buchanan, 431 N.W.2d at 548.
II
Alternatively, Blackwell argues that he is entitled to a new trial because the state
committed prosecutorial misconduct by eliciting vouching and ultimate-issue testimony
from the responding officer, who testified that Blackwell assaulted D.T. and that D.T. and
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the other witnesses he interviewed were truthful. Blackwell did not object to the officer’s
testimony at trial.
Unobjected-to prosecutorial misconduct is reviewed under a modified plain-error
test. State v. Waiters, 929 N.W.2d 895, 901 (Minn. 2019). The test first “requires the
defendant to show an error was made that was plain,” or “clear or obvious.” Id. (quotation
omitted). “Usually, prosecutorial error is clear or obvious if the prosecutor’s conduct
contravenes case law, a rule, or a standard of conduct.” State v. Jones, 753 N.W.2d 677,
686 (Minn. 2008). “If the defendant satisfies this burden, the burden shifts to the State to
establish that the un-objected to misconduct did not affect substantial rights.” Waiters, 929
N.W.2d at 901 (quotation omitted).
The substantial-rights prong of the modified plain-error test “is the equivalent of a
harmless error analysis.” State v. Matthews, 800 N.W.2d 629, 634 (Minn. 2011). “A plain
error affects the substantial rights of the defendant when there is a reasonable likelihood
that the error substantially affected the verdict.” Id. (quotation omitted). In other words, the
state must show “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.” State v. Ramey,
721 N.W.2d 294, 302 (Minn. 2006) (quotation omitted). In making this determination, a
reviewing court considers “(1) the strength of the evidence against [the defendant]; (2) the
pervasiveness of the erroneous conduct; and (3) whether [the defendant] had an
opportunity to rebut any improper remarks.” State v. Peltier, 874 N.W.2d 792, 805-06
(Minn. 2016). If the prosecutorial misconduct was plain error that affected substantial
rights, “the appellate court then assesses whether it should address the error to ensure
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fairness and the integrity of the judicial proceedings.” Ramey, 721 N.W.2d at 298 (quoting
State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998)).
A. Plain Error
Here, the parties do not dispute that the officer’s improper testimony rose to the
level of plain error. We agree. On its face, the officer’s testimony about the witnesses’
truthfulness encroached on the jury’s duty to assess credibility and constituted vouching
testimony. State v. Myers, 359 N.W.2d 604, 609-10 (Minn. 1984) (explaining that “[w]ith
respect to most crimes the credibility of a witness is peculiarly within the competence of
the jury, whose common experience affords sufficient basis for the assessment of
credibility”). Also, the officer testified that the altercation “was a one-way inc ident,” that
“this was an assault directed against the victim,” and that Blackwell was the assailant. This
amounted to “ultimate issue testimony” that “merely [told] the jury what result to reach.”
State v. Lopez-Rios, 669 N.W.2d 603, 613 (Minn. 2003). The prosecutor’s conduct in
drawing out that testimony “contravene[d] case law” holding that vouching and ultimate-
issue testimony is improper, Jones, 753 N.W.2d at 686, and it therefore constituted plain
error.
B. Substantial Rights
We nevertheless conclude that the misconduct did not affect Blackwell’s substantial
rights because “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 (quotation omitted). We address each substantial-rights factor in turn.
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Strength of the Evidence
The evidence against Blackwell was strong. Peltier, 874 N.W.2d at 805.
Considering the video evidence alone, there was ample evidence to support the jury’s
verdict that Blackwell was guilty of the assault and disorderly-conduct charges and that he
did not act in self-defense.
With respect to the fifth-degree assault charge, the government had to prove that
Blackwell intentionally inflicted or attempted to inflict bodily harm upon D.T. See Minn.
Stat. § 609.224.1(2). The video and photo evidence show s that Blackwell struck D.T.
multiple times with enough force to bruise D.T.’s face, even after he fell. Blackwell
testified that he participated in the altercation and admitted to hitting D.T. intentionally,
though he claimed it was in self-defense.
With respect to the disorderly conduct charge, the state had to prove that Blackwell
(1) engaged in brawling or fighting; (2) in a public or private place; (3) knowing, or having
reasonable grounds to know, that his conduct would alarm, anger or disturb others or
provoke an assault or breach of the peace. See Minn. Stat. § 609.72, subd. 1(1). The video
from Blackwell’s cellphone reveals that Blackwell approached D.T. and his friend in a
public library and repeated provocative statements. In the video, you can hear D.T. calling
for support from library staff, and the surveillance video shows that library staff attempted
to intervene and that other patrons were onlooking. In these circumstances, there was
substantial evidence to support the jury’s finding that Blackwell knew or should have
known that his actions would anger or disturb others. Blackwell persisted to raise his voice
and eventually struck D.T. multiple times.
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Finally, with respect to self-defense, even excluding consideration of the improper
testimony, there is no reasonable likelihood that the jury could have found that Blackwell
acted in self-defense. Self-defense requires, at least, the absence of aggression or
provocation by Blackwell—or, if he was the initial aggressor, that he withdrew from the
conflict—and the absence of a reasonable possibility of retreat . Basting, 572 N.W.2d at
285. But again, video evidence establishes that Blackwell was the initial aggressor when
he initiated a verbal confrontation by approaching D.T. and his friend’s table and making
provocative statements. At no point did Blackwell attempt to withdraw from the
altercation. Rather, despite reasonable possibilities for retreat, Blackwell escalated the
situation. Based on the video footage alone, it is apparent that Blackwell could have safely
retreated when D.T. told Blackwell to leave or when D.T. started to turn away from
Blackwell in at least two instances.
In short, the evidence of Blackwell’s guilt was “overwhelming.” State v. Valentine,
787 N.W.2d 630, 641 (Minn. App. 2010), rev. denied (Minn. Nov. 16, 2010).
Pervasiveness and Opportunity for Rebuttal
Regarding the remaining two factors in our substantial-rights analysis, the
misconduct was pervasive, but Blackwell had an opportunity to rebut the improper
testimony.
With respect to pervasiveness, the prosecutor elicited improper vouching and
ultimate-issue testimony in multiple instances through deliberate lines of questioning that
spanned multiple pages of the trial transcript. The prosecutor also relied on that improper
testimony in closing argument: “We’ve got [the officer’s] testimony. That he came; he
14
interviewed some individuals; and in his 28 years of experience, applying it to the
information that he gathered, it was his determination that Mr. Blackwell had assaulted
[D.T.]; and that this was not a usual fight.”
However, Blackwell “ had an opportunity to rebut [those] improper remarks,”
Peltier, 874 N.W.2d at 806, when he cross- and recross-examined the officer and presented
his own closing argument.2 For example, during the cross-examination, Blackwell showed
a video clip of the officer’s interview with D.T. and then questioned the officer about
whether D.T. was being truthful:
Q: [I]s it your position that . . . [D.T.] was telling the truth at
this moment?

A: So, again, my job is to collect information and he admitted
that yes, he knocked the phone out of your hand. Or grabbed at
your phone. Something to that effect. And that you had words
back and forth. So that’s the information that I was working
with.

Blackwell proceeded to ask the officer questions aimed at undermining the truthfulness of
D.T.’s statements to the officer. And during his closing argument, Blackwell addressed the
credibility of the officers who responded to the scene:
And the police officers . . . did not begin to even try to
investigate the case to know if I was doing anything wrong. Or
to know if [D.T.] was even lying. They didn’t look at my video.
They didn’t even try to review the video. I mean, you heard
them openly admit they didn’t even watch the video in the
library. So, they don’t even know what happened. They merely

2 We acknowledge that Blackwell was self-represented at trial. But that does not affect our
analysis because, as the district court told Blackwell, self-represented criminal defendants
are held to the same standard as attorneys. See State v. Bonkowske, 957 N.W.2d 437, 440,
442 (Minn. App. 2021) (acknowledging that criminal defendants who waive their right to
counsel “will be bound by the same rules as an attorney”).
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said that [D.T.] made a statement and it resulted in a citation
being issued.

Considering together the strength of the evidence, the pervasiveness of the
misconduct, and the opportunity for rebuttal, we conclude that the state met its burden to
show that the misconduct did not affect Blackwell’s substantial rights. The jury was
instructed on self-defense and considered Blackwell’s version of the events and his
arguments that D.T.’s version of the events was untrue. Yet, even excluding the improper
testimony, the strength of the evidence of Blackwell’s guilt was strong and there was
substantial evidence to disprove at least two elements of self-defense. It follows 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 (quotation
omitted).3
Affirmed.

3 Because the error did not affect Blackwell’s substantial rights, we do not address the final
prong of the modified-plain-error test regarding whether this court “should address the
error to ensure fairness and the integrity of the judicial proceedings.” Ramey, 721 N.W.2d
at 298.