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This opinion is nonprecedential except as provided by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
A24-1222

State of Minnesota,
Respondent,

vs.

Mylene Vialard,
Appellant.

Filed August 18, 2025
Reversed and remanded
Cochran, Judge

Aitkin County District Court
File No. 01-CR-21-806

Keith Ellison, Attorney General, Ed Stockmeyer, Assistant Attorney General, St. Paul,
Minnesota; and

James P. Ratz, Aitkin County Attorney, Aitkin, Minnesota (for respondent)

Claire Nicole Glenn, Climate Defense Project, Minneapolis, Minnesota; and

Karmen McQuity, People’s Law Center, Minneapolis, Minnesota (for appellant)

Considered and decided by Schmidt, Presiding Judge; Reyes, Judge; and Cochran,
Judge.
NONPRECEDENTIAL OPINION
COCHRAN, Judge
In this direct appeal, appellant argues that her conviction of felony obstruction under
Minnesota Statutes section 609.50 (2020), should be reversed because the evidence was
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insufficient to prove her guilt beyond a reasonable doubt. Alternatively, appellant contends
that the prosecutor committed pervasive misconduct that requires a new trial. While we
disagree that the evidence was insufficient for the jury to find appellant guilty of felony
obstruction, we conclude that appellant is entitled to a new trial due to pervasive
prosecutorial misconduct. We therefore reverse and remand for a new trial.
FACTS
In August 2021, respondent State of Minnesota charged appellant Mylene Vialard
with felony obstruction of legal process or arrest in violation of Minnesota Statutes section
609.50, subdivision 1(2), and gross- misdemeanor trespass in violation of Minnesota
Statutes section 609.6055, subdivision 2(a)(3) (2020). The charges arose from Vialard’s
participation in a protest in Aitkin County over the installation of Line 3, a petroleum
pipeline owned by Enbridge. The district court dismissed the trespass charge for lack of
probable cause but found the obstruction charge was supported by probable cause. That
charge proceeded to trial.
At the five-day jury trial, the state called four witnesses: the Aitkin County Sheriff,
two sergeants with the sheriff’s department (Sergeant 1 and Sergeant 2), and an officer
with the local police department. The state introduced one photo exhibit from the day of
the protest, as well as three video exhibits that were played for the jury without audio.
Vialard testified in her own defense and introduced two physical exhibits—a banner and a
device called a “sleeping dragon.” The parties also stipulated to the admission of eight
photographs and a redacted police report. The following facts are drawn from the trial
evidence.
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The State’s Case
On a morning in August 2021, law enforcement responded to a disturbance in Aitkin
County on an access road that led to the Line 3 pump station. Upon arriving, Sergeant 1
observed an “aerial blockade” occupied by two people. The “aerial blockade” was a 25-
foot-tall structure composed of wire cables and bamboo poles, as pictured below.

The structure was mounted with three hammocks, two of which were occupied by
protestors. Law enforcement estimated that the protestors were 12 to 15 feet off the ground.
One of the protestors was later identified as Vialard. Four other protestors were at the base
of the bamboo structure; they had locked themselves to the structure.

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Sergeant 2 testified that, shortly after he arrived, he told all the protestors that they
were under arrest. Law enforcement first removed the protestors who were locked to the
base of the structure. After the protestors on the ground were safely removed, law
enforcement began the process of removing Vialard and the other protestor from the
bamboo structure. The parties refer to this process as an “extraction.” The sheriff and the
police officer ascended in a “bucket truck,” as pictured, to conduct the extraction.

Sergeant 1, who observed the extraction from the ground, saw Vialard and the other
protestor attach their arms to opposite ends of a “sleeping dragon” device while the bucket
truck ascended. The trial testimony established that a sleeping dragon is commonly used

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by protestors as a delay tactic. It consists of a pipe that a protestor can “lock” into by
putting their arm into the pipe and clipping onto a pin inside the pipe with a carabiner.
Only the user of a sleeping dragon can unclip themselves from the device. According to
Sergeant 1, if the user does not unclip themselves, “there’s no way to remove [a sleeping
dragon] without having specially trained people use power tools . . . to cut apart the pipe.”
The sheriff testified that law enforcement’s “first goal” during the extraction was
“to remove the sleeping dragon” from Vialard and the other protestor. The sheriff “asked
[Vialard] a couple times to unhook from the device and climb down on her own free will.”
According to the sheriff, Vialard responded that “she wasn’t going to get down.” Similarly,
the police officer testified that Vialard refused to unclip herself from the sleeping dragon.
The officer felt that Vialard’s conduct “frustrated or hindered” his “purpose” during the
extraction.
Because Vialard and the other protestor declined to come down from the structure
voluntarily, the sheriff and officer opted to physically extract them. They approached the
other protestor first by moving the bucket truck as close to his position as possible. The
other protestor “pulled away from” the bucket truck, which caused the entire bamboo
structure to “wiggle.” When the structure started moving, Vialard, whose arm was tethered
to the other protestor by the sleeping dragon, told the officers that she did not feel safe.
Eventually, the other protestor unclipped himself from the sleeping dragon, which allowed
the officer to remove Vialard’s arm from the other end of the sleeping dragon. The sheriff
and the officer then extracted Vialard and the other protestor from the structure and lowered
them to the ground in the bucket truck. The state admitted two video exhibits into evidence
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that depicted portions of the extraction process, including the moment when Vialard first
attached her arm to the sleeping dragon while the sheriff and officer ascended to begin the
extraction process.
Sergeant 2 estimated that he was at the protest site from about 6:30 a.m. to 11:30
a.m. that day and Vialard was in the structure for approximately two to three hours while
he was on site. The sheriff testified that law enforcement removed the protestors on the
ground “long before” he and the officer went up in the bucket truck to extract Vialard. The
sheriff estimated that he and the officer were elevated in the bucket truck for 25 to 30
minutes during the extraction process.
Given the height of the bamboo structure, several of the law-enforcement witnesses
had concerns for the safety of Vialard and “the personnel on scene” during the extraction.
According to the sheriff, a fall from the bamboo structure could have been “catastrophic”
given the height of the structure and because, if someone did fall, the structure’s cables and
wires “[c]ould cause cuts or burns or maybe even . . . decapitation.” But the sheriff
clarified that he was never concerned about his own safety during the extraction—he was
only worried about Vialard’s safety.
Vialard’s Version of the Events
Vialard elected to testify in her own defense. Vialard, who is a United States citizen
and lives in Colorado, was born and raised in France. Vialard has a French accent. Vialard
testified that she travelled to Minnesota in August 2021 to participate in a protest of
Enbridge’s Line 3 pipeline. Vialard met with other individuals to coordinate the protest.
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Vialard, who has a background in rock climbing, was asked to climb the bamboo structure
during the protest.
Vialard testified about the preparation that went into the bamboo structure.
According to her, the protestors performed a “weight check” on the structure and practiced
setting up the structure and climbing it “a lot” before the actual protest. Vialard used
climbing slings and clips to anchor herself to the structure. She also wore a harness and
helmet for “basic safety.”
Vialard then described what happened the day she was arrested. She testified that
the protestors got to the site early in the morning. By the time law enforcement arrived,
the protestors had erected the bamboo structure and Vialard and the other protestor had
already climbed up into the structure. Vialard heard law enforcement tell the group of
protestors that they were all under arrest and she assumed that the announcement applied
to her as well. While officers were removing protestors from the base of the structure,
Vialard and the other protestor in the structure prepared to lock themselves into the sleeping
dragon. According to Vialard, she was “not really paying attention to what was going on
below.” But Vialard conceded that she clipped her arm into the sleeping dragon while the
bucket truck was ascending with the sheriff and police officer. And Vialard acknowledged
that this fact “might have looked bad.” But she maintained that her plan was always to
lock herself into the sleeping dragon as a “statement” against Enbridge, regardless of any
law-enforcement activity.
Vialard added that she did not refuse to unclip from the sleeping dragon. Instead,
she asserted that she told law enforcement she could not release her arm from it because
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she was in an extremely uncomfortable position and could not reach the release pin within
the sleeping dragon. Soon after Vialard told law enforcement that she could not release
her arm, the other protestor unclipped from the sleeping dragon. At that point, Vialard was
able to “get out of the [device].” Law enforcement then extracted Vialard from the bamboo
structure, lowered her down to the ground, and transferred her to a vehicle.
Vialard’s Objections to the Prosecutor’s Tactics
During the trial, Vialard objected to certain questions on the basis that the prosecutor
sought to elicit evidence that the district court had previously ruled inadmissible . Before
trial, the district court granted several of Vialard’s motions in limine, including her request
to prohibit the state’s law-enforcement witnesses “from making irrelevant self-
aggrandizing statements to improperly bolster and vouch for their own testimony” and her
request to exclude all evidence of injuries allegedly sustained by law-enforcement officers
while removing other individuals from the protest.
While examining the state’s witnesses, the prosecutor asked multiple questions
related to these inadmissible topics. For instance, Vialard objected when the prosecutor
asked Sergeant 1 on redirect examination whether he had “ever been subject to any sort of
ethical violations.” Vialard asserted that she had not alleged that Sergeant 1 had any ethical
violations. In response, the prosecutor argued in the jury’s presence that Sergeant 1’s
answer was relevant to “further validate” his testimony. The district court sustained the
objection. The prosecutor also asked Sergeant 2 on direct examination whether he suffered
injuries on the day of the protest. After Sergeant 2 answered affirmatively, the prosecutor
asked him to describe his injuries. Vialard objected on the ground that the sergeant’s
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injuries were unrelated to Vialard’s extraction. The district court then sustained the
objection.
During closing arguments, Vialard also objected to several of the prosecutor’s
statements on the basis that they touched on inadmissible topics. Among the objected-to
statements were the prosecutor’s assertions to the jury that (1) if the state had “perfect”
body-camera footage of Vialard’s extraction, the state would not be “at liberty to discuss
whether or not this case would be taken to trial,” (2) the sheriff was elected to protect “the
members of [the sheriff’s] community, of our community,” and (3) the jury could “draw
reasonable inferences off of what’s not in evidence.” Vialard specifically interrupted the
prosecutor’s rebuttal argument to object to his statement about making inferences about
nonevidence, but the district court instructed Vialard to “[w]ithhold objection.” Only after
the jury began deliberating did the district court permit Vialard to discuss her objections to
the state’s closing argument. The district court considered Vialard’s objections, opted to
take no curative measures, and told the parties, “We’ll let the jury continue to deliberate.”
Verdict
The jury found Vialard guilty of felony obstruction of legal process or arrest. After
a sentencing hearing, the district court entered judgment of conviction and sentenced
Vialard to one year of probation. Vialard appeals.
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DECISION
Vialard seeks reversal of her conviction, challenging the sufficiency of the evidence
supporting her conviction of felony obstruction. In the alternative, Vialard argues that the
prosecutor’s misconduct requires a new trial.1
I. The state’s evidence was sufficient for the jury to find beyond a reasonable
doubt that Vialard committed felony obstruction of legal process or arrest.

Vialard argues that the evidence at trial was insufficient for a jury to find beyond a
reasonable doubt that she obstructed her arrest in violation of section 609.50,
subdivision 1(2). To convict Vialard under section 609.50, subdivision 1(2), the state had
to prove that Vialard “intentionally . . . obstruct[ed], resist[ed], or interfere[d] with a peace
officer while the officer [was] engaged in the performance of official duties.” We focus
our analysis on Vialard’s act of locking her arm into the sleeping dragon while police
ascended in the bucket truck.
We have narrowly interpreted the language in section 609.50 , subdivision 1(2), “to
proscribe conduct directed at [a] [law-enforcement] officer that obstructs, resists, or
interferes with the [law-enforcement] officer in the performance of official duties.”
State v. Morin, 736 N.W.2d 691, 698 (Minn. App. 2007) (emphasis added) (quotation
marks omitted), rev. denied (Minn. Sept. 18, 2007). Accordingly, the state had to prove
that Vialard’s use of the sleeping dragon was “directed at” a law-enforcement officer. We
also assume, without deciding, that the legislature’s inclusion of the word “intentionally”

1 Vialard also contends that she is entitled to a new trial on the grounds of erroneous jury
instructions and due-process concerns. Because we reverse Vialard’s conviction and
remand for a new trial based on prosecutorial misconduct, we need not reach these issues.
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in section 609.50, subdivision 1, required proof that Vialard specifically intended her use
of the sleeping dragon to obstruct law enforcement. 2 Lastly, because it charged Vialard
with felony obstruction, the state also had to prove that Vialard “knew or had reason to
know” that engaging the sleeping dragon “created a risk of death, substantial bodily harm,
or serious property damage.” Minn. Stat. § 609.50, subd. 2(1). The state was required to
prove each of these elements beyond a reasonable doubt to satisfy due process .
State v. Beganovic, 991 N.W.2d 638, 654 (Minn. 2023).
Vialard challenges the sufficiency of the evidence supporting each of these three
elements. First, Vialard asserts that the state failed to prove that her allegedly obstructive
act of clipping into the sleeping dragon was directed at law enforcement. Second, Vialard
argues that the state failed to prove that she specifically intended to obstruct her arrest by
using the sleeping dragon. Third, Vialard contends that the state did not prove that she

2 Section 609.50 criminalizes conduct that is done “intentionally.” Minn. Stat. § 609.50,
subd. 1. Vialard contends that obstruction under section 609.50 is therefore a specific-
intent offense. Specific-intent crimes require the state to prove that the offender had “an
intent to cause a particular result.” State v. Fleck, 810 N.W.2d 303, 308 (Minn. 2012)
(quotation omitted). The state responds that section 609.50 requires only a showing of
general intent. General-intent offenses require the state to prove that the defendant
“intentionally engag[ed] in the prohibited conduct.” Id. (quotation omitted). The state
contends it therefore had to prove only that Vialard volitionally used the sleeping dragon,
not that she used the sleeping dragon with the specific intent to obstruct law enforcement.
There is no binding precedent on whether obstruction under section 609.50 is a
specific- or general-intent offense. We acknowledge that another panel of this court
recently observed in a nonprecedential decision that obstruction under section 609.50 is a
general-intent offense. State v. Sprowls, No. A24-1584, 2025 WL 2042275, at *6-7 (Minn.
App. July 21, 2025). We need not resolve this legal question for purposes of our analysis
because we conclude that the state satisfied its burden under the more onerous specific-
intent standard. We therefore assume without deciding that obstruction is a specific-intent
offense.
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knew or had reason to know that her use of the sleeping dragon created a risk of harm. We
first discuss the applicable standard of review and then turn to each of Vialard’s arguments.
Standard of Review
The supreme court has “adopted two tests for evaluating a sufficiency-of-the -
evidence” argument—t he traditional test and the heightened two-step test. State v. Jones,
4 N.W.3d 495, 500 (Minn. 2024). Under the traditional test, we conduct “a painstaking
analysis of the record to determine whether the evidence, when viewed in a light most
favorable to the conviction, was sufficient to permit the jurors to reach the verdict which
they did.” State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). The traditional test applies
when a disputed element is proved by direct evidence. Jones, 4 N.W.3d at 500. But, when
a disputed element is proved at least in part by circumstantial evidence, appellate courts
apply the heightened two-step test. Id.; Loving v. State, 891 N.W.2d 638, 643 (Minn.
2017). This test is also known as the circumstantial-evidence standard of review. Loving,
891 N.W.2d at 643.
Here, the state relied on circumstantial evidence to prove the disputed elements of
Vialard’s obstruction conviction. Circumstantial evidence is “evidence from which the
factfinder can infer whether the facts in dispute existed or did not exist.” State v. Harris ,
895 N.W.2d 592, 599 (Minn. 2017) (quotations omitted). By contrast, direct evidence
“proves a fact without inference or presumption.” Id. (quotation omitted). In other words,
circumstantial evidence, unlike direct evidence, “always requires an inferential step to
prove a fact.” Id.
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The state offered no direct evidence that Vialard’s use of the sleeping dragon (1) was
directed at law enforcement, (2) was specifically intended to obstruct, and (3) created a risk
of harm that she knew of or should have known of. Instead, the jury was required to infer
the existence of these elements from the state’s evidence. Accordingly, the state’s proof
of these elements depended on circumstantial evidence, and so we apply that heightened
two-step standard of review. Jones, 4 N.W.3d at 500. Under the two-step circumstantial-
evidence test, an appellate court’s first step is to “identify the circumstances proved by the
state.” Loving, 891 N.W.2d at 643. In doing so, we “winnow down the evidence presented
at trial by resolving all questions of fact in favor of the jury’s verdict, resulting in a subset
of facts that constitute ‘the circumstances proved.’” Harris, 895 N.W.2d at 600. At step
two, we “independently examine the reasonableness of all inferences that might be drawn
from the circumstances proved,” giving no deference to the jury verdict. Loving, 891
N.W.2d at 643 (quotation omitted). “To sustain the conviction, the circumstances proved,
when viewed as a whole, must be consistent with a reasonable inference that the accused
is guilty and inconsistent with any rational hypothesis except that of guilt.” Harris, 895
N.W.2d at 601.
With our standard of review in mind, we turn to Vialard’s specific arguments
regarding the sufficiency of the state’s evidence. We begin by identifying the
circumstances proved. We then consider for each challenged element whether the
circumstances proved are consistent with guilt and inconsistent with any rational
hypothesis other than guilt.
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Step 1 - Circumstances Proved
In identifying the circumstances proved, we defer to the jury’s fact-finding and
disregard any evidence that is inconsistent with the verdict. Id. at 600-01. The
circumstances proved “do not include every circumstance as to which there may be some
testimony in the case, but only such circumstances as the jury finds proved by the
evidence.” State v. Stein, 776 N.W.2d 709, 715 (Minn. 2010) (quotation omitted).
Based on our review of the trial record, we determine that the state proved the
following circumstances:
• In August 2021, Vialard participated in a protest of Enbridge’s Line 3
pipeline in Aitkin County. As part of the protest, a bamboo structure was
erected on an access road.
• Before the protest, Vialard and other protestors practiced using the bamboo
structure “a lot.”
• On the day of the protest, Vialard, who is an experienced climber, used
climbing slings, a harness, and a helmet for “basic safety.”
• When law enforcement arrived at the protest, Vialard and another protestor
were already elevated in the bamboo structure and other protestors had
locked themselves to the base of the structure. Vialard was suspended from
the structure at a height of between 12 to 15 feet. There was a banner hanging
from the bamboo structure displaying the words “Stop Line 3” and
“Resistance is Love.”
• Law enforcement informed all the protestors that they were under arrest.
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• “Long before” the sheriff and an officer ascended in a bucket truck to extract
Vialard, law enforcement removed the other protestors from the base of the
structure.
• When the sheriff and officer began ascending in the bucket truck to perform
the extraction, Vialard and the other protestor each locked one of their arms
into opposite ends of one sleeping dragon.
• A sleeping dragon is a tool used by protestors as a delay tactic. Only the
protestor can release their arm from the device without the use of special
tools.
• The sleeping dragon put Vialard and the other protestor in “ extremely
uncomfortable” positions. While locked into the sleeping dragon, Vialard
said that she felt unsafe and it was difficult for her to move.
• Vialard refused to unclip from the sleeping dragon when asked to do so by
law enforcement. Vialard’s use of the sleeping dragon made it difficult to
arrest her.
• Vialard was suspended from the bamboo structure for a total of two to three
hours, and her extraction took 25 to 30 minutes.
• Multiple law-enforcement officers were concerned for Vialard’s safety.
• A fall from the structure could be “catastrophic” and cause injuries including
cuts, burns, and decapitation.
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Step 2- Sufficiency of the Evidence for the Challenged Elements

Having identified the circumstances proved, we next consider the reasonable
inferences that might be drawn from these circumstances with regard to the challenged
elements of the obstruction offense , including inferences other than guilt. See Loving,
891 N.W.2d at 643. “We do not defer to the jury at this stage, but rather we independently
examine the reasonableness of all inferences that might be drawn from the circumstances
proved, including inferences consistent with a hypothesis other than guilt.” Id. (quotation
omitted). If the circumstances proved are consistent with guilt and inconsistent with any
rational hypothesis except that of guilt, the evidence is sufficient to sustain the conviction.
State v. Tscheu, 758 N.W.2d 849, 857 (Minn. 2008).
We begin by addressing the circumstances proved that relate to whether Vialard’s
conduct was directed at law enforcement and whether she intended to obstruct her arrest.
We address these two elements in tandem because the same circumstances proved are
relevant to both. We then turn to the third element disputed by Vialard—whether she knew
or should have known that using the sleeping dragon created a risk of substantial bodily
harm. We conclude that the circumstances proved are consistent with the jury’s verdict on
each of the three disputed elements and inconsistent with any other rational hypothesis.
A. The only rational hypothesis from the circumstances proved is that
Vialard’s use of the sleeping dragon was directed at law enforcement
and specifically intended to obstruct her arrest.

A reasonable inference from the circumstances proved is that Vialard’s act of
locking her arm into the sleeping dragon was directed at law enforcement and was
specifically intended to obstruct her arrest. The circumstances proved establish that
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Vialard was suspended from the bamboo structure for a total of two to three hours while
law enforcement was on site. Vialard engaged the sleeping dragon only when law
enforcement ascended in the bucket truck to extract her from the bamboo structure. And
the extraction, which took only 20 to 30 minutes, occurred well after law enforcement
removed protestors from the base of the structure. A reasonable inference from these
circumstances proved is that Vialard was in the bamboo structure for more than one hour
while law enforcement was on site, and she only engaged the sleeping dragon once law
enforcement began their attempt to extract her from the structure. Additionally, the
circumstances proved include that a sleeping dragon is a tool used as a delay tactic by
protestors and that Vialard’s use of the sleeping dragon made it difficult to arrest her. From
these circumstances proved, the jury could reasonably infer that Vialard’s conduct was
both directed at law enforcement and specifically intended to obstruct her arrest.
Having concluded that the circumstances proved as to these two elements are
consistent with guilt, we next consider whether these circumstances proved support a
rational hypothesis other than guilt. See id. Vialard argues that one such rational
hypothesis is that her use of the sleeping dragon was not directed at law enforcement but
rather at Enbridge. Similarly, she argues that a rational inference is that her specific intent
in using the sleeping dragon was to protest Enbridge, not to obstruct her arrest.
In support of her argument, Vialard primarily relies on her own testimony that she
locked into the sleeping dragon to protest Enbridge’s construction of Line 3. But, as
Vialard acknowledges in her brief, her testimony in this regard is inconsistent with the
jury’s verdict. Consequently, we must disregard this testimony in our analysis of whether
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there is a rational alternative hypothesis other than guilt because Vialard’s testimony on
this point is not a circumstance proved. See Harris, 895 N.W.2d at 600 (providing that we
resolve all questions of fact in favor of the verdict when identifying the circumstances
proved and only consider the circumstances proved at the second step). 3
In addition to her testimony, Vialard relies on the fact that a banner was hanging
from the bamboo structure, which is a circumstance proved, to support her argument that
her conduct of clipping into the sleeping dragon was directed at Enbridge, not law
enforcement. But she focuses on this circumstance in isolation from the other
circumstances proved. Vialard emphasizes the banner that hung from the bamboo structure
and displayed the phrases “Stop Line 3” and “Resistance is Love.” She contends that the
existence of the banner supports an inference that her use of the sleeping dragon was a
component of the larger protest aimed at Enbridge. Vialard’s reliance on the banner is not
persuasive because we “review the circumstantial evidence not as isolated facts, but as a
whole.” State v. Silvernail, 831 N.W.2d 594, 599 (Minn. 2013). And the whole of the
circumstances proved demonstrate that Vialard only engaged the sleeping dragon after law
enforcement ascended to extract Vialard, as discussed above. The mere existence of the

3 Vialard also cites the sheriff’s testimony that her participation in the protest “was directed
at Enbridge” or in “support of her daughter.” We note that the sheriff’s testimony was
ambiguous and did not refer specifically to Vialard’s use of the sleeping dragon. But even
if we assume that the circumstances proved lead to the rational inference that Vialard’s use
of the sleeping dragon was directed at and intended to protest Enbridge, that inference is
not inconsistent with guilt. The inference that Vialard’s use of the sleeping dragon was
part of a broader protest of Enbridge is not inconsistent with the inference that the act was
simultaneously directed at and meant to obstruct law enforcement. Thus, Vialard’s
alternative inference is not inconsistent with guilt. See Harris, 895 N.W.2d at 601.
19
banner is inconsequential to whether Vialard’s particular act of locking into the sleeping
dragon while law enforcement ascended to extract her was directed at and intended to
obstruct law enforcement. Accordingly, the existence of the banner does not support a
rational inference other than guilt on the elements of conduct and intent.
Vialard also argues that there is a rational alternative hypothesis on whether she
intended to obstruct her arrest because the circumstances proved are devoid of any evidence
that she made “disparaging or violent statements toward law enforcement.” But “the
absence of evidence in the record regarding a certain circumstance does not constitute a
circumstance proved.” State v. German, 929 N.W.2d 466, 473-74 (Minn. App. 2019).
Moreover, Vialard offers no legal authority suggesting that an act is not obstructive within
the meaning of section 609.50 if not accompanied by “disparaging or violent statements
toward law enforcement.” Vialard’s reliance on her lack of violent statements is therefore
unavailing.
In sum, Vialard has not demonstrated that the circumstances proved, taken as a
whole, are consistent with any rational inference other than that her use of the sleeping
dragon was directed at law enforcement with the specific intent of obstructing her arrest.
The evidence supporting these elements was therefore sufficient.
B. The only rational inference from the circumstances proved is that
Vialard knew or should have known that using the sleeping dragon
created a risk of substantial bodily harm.

Vialard also challenges the sufficiency of the evidence as to a third element of the
offense—whether she “knew or had reason to know” that her act of using the sleeping
dragon “created a risk of death, substantial bodily harm, or serious property damage.”
20
Minn. Stat. § 609.50, subd. 2(1). “Substantial bodily harm” is defined as “bodily injury
which involves a temporary but substantial disfigurement, or which causes a temporary but
substantial loss or impairment of the function of any bodily member or organ, or which
causes a fracture of any bodily member.” Minn. Stat. § 609.02, subd. 7a (2020). Examples
of substantial bodily harm include cuts that leave scars, bruises that leave permanent
discoloration, and chipped teeth. State v. Harlin, 771 N.W.2d 46, 51 (Minn. App. 2009),
rev. denied (Minn. Nov. 17, 2009). The loss of consciousness or a concussion also rise to
substantial bodily harm. State v. Larkin, 620 N.W.2d 335, 337-38 (Minn. App. 2001).
Based on these examples, a reasonable inference from the circumstances proved is
that Vialard’s use of the sleeping dragon created a risk of substantial bodily harm to both
her and the other protestor. Although Vialard is an experienced climber, she wore safety
gear and practiced “a lot” with the bamboo structure, indicating that she was aware of
safety risks associated with climbing the structure. And the circumstances proved include
that attaching her arm to the other protestor’s arm with the sleeping dragon caused her to
contort her arm into an uncomfortable position. Vialard also told law enforcement that she
felt unsafe when she was still attached to the sleeping dragon.
From the circumstances proved, the jury could reasonably infer that Vialard’s use
of the sleeping dragon increased the risk that she or the other protestor would suffer a
“catastrophic” fall from the bamboo structure. And it is reasonable to infer that a 12 - to
15-foot fall from the bamboo structure could result in substantial bodily injury, such as
fractured bones, a concussion, chipped teeth, or cuts that leave permanent scars. See Minn.
Stat. § 609.02, subd. 7a; Harlin, 771 N.W.2d at 51; Larkin, 620 N.W.2d at 337-38. Another
21
reasonable inference from the circumstances proved is that Vialard could have suffered
substantial bodily harm during the extraction as a result of her arm being locked into the
sleeping dragon. Lastly, the jury could reasonably infer that Vialard knew or had reason
to know of these risks, given her climbing experience, her use of protective gear, and the
amount of precaution she used in implementing the bamboo structure. Accordingly, the
circumstances proved are consistent with the jury’s verdict on the risk-of-injury element.
Vialard contends that her use of climbing equipment supports the alternative
inference that she “took appropriate safety precautions to remove risks of danger, rather
than that she knowingly created a danger.” As before, we are not persuaded by Vialard’s
focus on isolated circumstances. See Silvernail, 831 N.W.2d at 599. A rational inference
based on Vialard’s use of safety precautions is that she reduced, but did not completely
remove, the overall risk of injury during the protest. And this inference is not inconsistent
with the inference that her obstructive act of engaging the sleeping dragon nonetheless
“created a risk” of her or the other protestor suffering substantial bodily harm, regardless
of the safety precautions that they took. See Minn. Stat. § 609.50, subd. 2(1). For instance,
although a helmet may have protected her head, it would not have prevented Vialard from
suffering broken bones or cuts in the event of a fall during the extraction process. See
Minn. Stat. § 609.02, subd. 7a (defining “substantial bodily harm” to include “temporary
but substantial loss or impairment of the function of any bodily member or organ” and “a
fracture of any bodily member”). And, by clipping her arm into the sleeping dragon,
Vialard complicated the extraction process and thereby increased the risk of harm to herself
notwithstanding her safety precautions. We therefore disagree with Vialard that the
22
circumstances proved support a rational inference that Vialard did not know or have reason
to know that locking her arm into the sleeping dragon while suspended from the structure
would create “a risk” of substantial bodily harm. See Minn. Stat. § 609.50, subd. 2(1). In
sum, Vialard’s proposed alternative hypothesis is not inconsistent with guilt.
Vialard also argues that the risk of harm referred to in section 609.50,
subdivision 2(1), cannot include the risk of harming oneself. But the plain language of
section 609.50 required the state to prove only that Vialard knew or had reason to know
that her obstructive act created “a risk” of substantial bodily harm. Minn. Stat. § 609.50,
subd. 2(1) (emphasis added). “‘A’ is an indefinite article, meaning that it does not refer to
a specific person or thing.” State v. Walton , 14 N.W.3d 840, 844 (Minn. App. 2024).
Accordingly, “a risk” of substantial bodily harm under section 609.50 includes a risk of
substantial bodily harm to anyone, including the obstructor. We therefore reject Vialard’s
interpretation of section 609.50.4
In conclusion, the circumstances proved are consistent with the rational inference
that Vialard knew or had reason to know that engaging the sleeping dragon while
suspended from the bamboo structure created a risk of substantial bodily harm. Vialard
has not established a rational alternative hypothesis to guilt that is based on the
circumstances proved. The evidence was therefore sufficient for the jury to find Vialard
guilty of felony obstruction beyond a reasonable doubt.

4 Regardless, Vialard cannot reasonably dispute that her obstructive act of attaching herself
to the other protestor in the structure also created a risk that the other protestor would suffer
substantial bodily harm.
23
II. The prosecutor committed pervasive misconduct that deprived Vialard of a
fair trial.

Next, Vialard argues that the prosecutor engaged in repeated and flagrant
misconduct at trial that deprived her of her right to a fair trial. Vialard alleges over 20
instances of prosecutorial misconduct. The state concedes that five of the instances amount
to misconduct. We conclude that the five conceded acts of misconduct had the effect of
depriving Vialard of a fair trial and warrant reversal. Accordingly, we focus our analysis
on those five instances.
5
“Prosecutors have an affirmative obligation to ensure that a defendant receives a
fair trial, no matter how strong the evidence of guilt.” State v. Ramey, 721 N.W.2d 294,
300 (Minn. 2006). And prosecutors are “minister[s] of justice” who “may not seek a
conviction at any price.” Id. (quotation omitted). For these reasons, prosecutors must
refrain from conduct such as endorsing a witness’s credibility, State v. Martin, 773 N.W.2d
89, 106 (Minn. 2009), attempting to bring inadmissible evidence to the attention of the
jury, State v. White, 203 N.W.2d 852, 857 (Minn. 1973), “inflaming the jury’s passions
and prejudices against the defendant,” State v. Morton, 701 N.W.2d 225, 236 (Minn. 2005)
(quotation omitted), and discussing facts not in evidence during closing argument, State v.
Bobo, 770 N.W.2d 129, 142 (Minn. 2009).
The state concedes that the prosecutor committed misconduct while examining
witnesses on two occasions and three times during the state’s closing arguments.

5 While we focus our analysis on the five instances of misconduct conceded by the state,
we note that many of the other alleged instances of prosecutorial misconduct raise serious
concerns.
24
Specifically, the state admits that the prosecutor committed misconduct when he
(1) attempted to bolster Sergeant 1’s testimony by asking him about his lack of ethical
violations; (2) asked Sergeant 2 about the injuries he sustained that were unrelated to
Vialard; (3) suggested to the jury that Vialard would have pleaded guilty had the state’s
video evidence been better; (4) aligned himself and the state’s witness with the jury by
telling the jury that the sheriff was elected to protect “our community”; and (5) invited the
jury to “draw reasonable inferences off of what’s not in evidence.” And the state does not
dispute that Vialard objected to each of the five instances of conceded misconduct.
Objected-to misconduct is reviewed under a “two-tiered,” harmless-error approach
adopted by the supreme court. State v. McDaniel, 777 N.W.2d 739, 749 (Minn. 2010). For
“less serious prosecutorial misconduct,” the appellant must establish that the misconduct
“likely played a substantial part in influencing the jury to convict.” Id. (quotation omitted).
“For more serious prosecutorial misconduct, we have reversed unless the misconduct is
harmless beyond a reasonable doubt.” Id.
6
Based on our review of the record, we conclude that all three instances of conceded
misconduct arising from the state’s closing argument are “more serious” for purposes of

6 Since adopting the two-tiered harmless error approach, the supreme court has expressed
skepticism regarding the viability of the approach. See, e.g., State v. Whitson, 876 N.W.2d
297, 304 n.2 (Minn. 2016) (“Recent cases have questioned whether the two-
tiered . . . standard for reviewing objected-to misconduct remains viable.”); McDaniel,
777 N.W.2d at 749 (“We have not yet decided whether this two-tiered
approach . . . remains viable.”). But the supreme court has not expressly rejected or
modified the approach, and so we are bound to apply it here. See State v. Curtis,
921 N.W.2d 342, 346 (Minn. 2018) (“The court of appeals is bound by supreme court
precedent.”).
25
the two-tiered harmless-error test. 7 We reach this conclusion for the following reasons.
Two of the three instances of misconduct involved the prosecutor suggesting to the jury
that the jury was not limited to considering the evidence at trial in deciding whether to
convict Vialard of obstructing her arrest. First, during closing argument, the prosecutor
told the jury that he was “not at liberty to discuss whether or not this case would be taken
to trial” if better body -camera footage existed, intentionally implying that such footage
would have forced Vialard to plead guilty. Later, during rebuttal, the prosecutor invited
the jury to make inferences based on facts not in evidence when he told the jury that “in
addition to the evidence you’re allowed to draw reasonable inferences off of what’s not in
evidence.” It is well established that prosecutors may not make arguments that are not
supported by the evidence before the jury. Bobo, 770 N.W.2d at 142. It is extremely
troubling that the prosecutor made explicit arguments during the state’s closing and rebuttal
encouraging the jury to base its verdict on facts outside the record. Indeed, the state
concedes that “there is no defense” for these comments.
Likewise, the prosecutor’s use of the word “our” during the state’s closing argument
is particularly serious given the context of this case. His reference to “our community”
when discussing the sheriff’s testimony only served to align the state and its witnesses,
who were all members of local law enforcement, with the jury. This comment was
especially improper because Vialard travelled from Colorado to Minnesota to participate
in the protest. Vialard also speaks English with a French accent. By using the word “our,”

7 We note that the caselaw is silent as to how to distinguish between unusually serious and
less serious objected-to misconduct.
26
the prosecutor may have impermissibly inflamed the passions of the jury by creating an
“us versus them” scenario by painting Vialard as an outsider. See State v. Mayhorn ,
720 N.W.2d 776, 790 (Minn. 2006) (determining that prosecutor committed misconduct
when she attempted to “appeal to the jury’s passions” by using the words “we” and “us”).
Such conduct is egregious, especially because the state was attempting to prove Vialard
obstructed local law enforcement’s efforts to arrest her. Considering the transcript of the
closing argument as a whole, we can only conclude that the prosecutor’s tactics during
closing argument were an attempt to secure a guilty verdict by improperly influencing the
jury. This was particularly serious misconduct.
We next consider the two instances of conceded misconduct that occurred during
questioning of the witnesses, which involved the prosecutor inquiring into topics that the
district court previously ruled were inadmissible. We conclude that those two instances of
misconduct were less serious when examined in isolation but more serious when
considered in light of the other instances of misconduct discussed above. Notably, the state
admits that the prosecutor’s questions about Sergeant 1’s lack of ethical violations and
Sergeant 2’s injuries were in violation of the district court’s pretrial rulings. These
questions undoubtedly constitute misconduct. See White, 203 N.W.2d at 857 (stating that
it is misconduct for a prosecutor to knowingly attempt to bring inadmissible evidence to
the jury’s attention). And, while asking questions that the district court had prohibited does
not necessarily equate to serious misconduct, see State v. Steward, 645 N.W.2d 115, 123
(Minn. 2002), the prosecutor’s attempts here to elicit inadmissible evidence tie in with the
prosecutor’s more-serious misconduct during closing argument. Specifically, the
27
prosecutor’s questions played to the “us versus them” narrative argued during closing
argument by attempting to “further validate” Sergeant 1’s testimony and suggest that
Sergeant 2’s unrelated injuries were somehow related to Vialard’s extraction. Therefore,
while perhaps less serious in isolation, the prosecutor’s misconduct during questioning was
part of a pattern of unusually serious misconduct.
Having concluded that this case involves “more serious” misconduct, we must
determine whether the misconduct was harmless beyond a reasonable doubt. McDaniel,
777 N.W.2d at 749. A prosecutor’s misconduct is harmless beyond a reasonable doubt
when the guilty verdict is “surely unattributable” to the misconduct. State v. Dobbins,
725 N.W.2d 492, 507 (Minn. 2006) (quotation omitted). Factors relevant to this
consideration are the strength of the state’s evidence, the pervasiveness of the misconduct,
and whether the district court’s instructions addressed the misconduct. See McDaniel,
777 N.W.2d at 753 (concluding that misconduct was harmless based on the strength of the
evidence, the “sporadic, minimal” nature of the misconduct, and the district court’s
admonitions). “[W]e will reverse only where the misconduct, viewed in light of the entire
record, is of such serious and prejudicial nature that appellant’s constitutional right to a fair
trial was impaired.” State v. Haynes, 725 N.W.2d 524, 529 (Minn. 2007).
The state contends that its evidence was particularly strong. We disagree. Although
we concluded above that the state’s evidence was sufficient for the jury to find Vialard
guilty of felony obstruction, we reached that conclusion viewing the evidence in the light
most favorable to the verdict. See Loving, 891 N.W.2d at 643 (stating that under the
circumstantial-evidence test, appellate courts defer to the jury’s acceptance of the state’s
28
evidence and its rejection of any evidence that is inconsistent with that evidence). Without
that presumption, the state’s evidence was not particularly strong because the testimony of
the state’s witnesses was inconsistent at times and conflicted with Vialard’s testimony.
“Moreover, 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.”
State v. Portillo, 998 N.W.2d 242 , 253 (Minn. 2023). We therefore conclude that the
strength of the state’s evidence does not overcome the possibility that the prosecutor’s
serious misconduct influenced the jury’s verdict.
Regarding pervasiveness, the record reflects that the prosecutor’s misconduct was
not “sporadic” or “minimal.” See McDaniel, 777 N.W.2d at 753. The five instances of
conceded misconduct in this case were part of the prosecutor’s apparent strategy of
bolstering the state’s law-enforcement witnesses while appealing to the jury’s potential
biases against Vialard. We need not look further than the prosecutor’s statement to the
judge—in the presence of the jury—that his irrelevant question about a sergeant’s ethical
violations was meant to “further validate” the sergeant’s testimony. The prejudicial effects
of the prosecutor attempting to bolster the state’s witnesses and introduce inadmissible
evidence were amplified by the prosecutor’s statement in closing that the sheriff was
elected to protect “our community.” Consequently, each successive act of misconduct
during questioning and closing arguments magnified the previous misconduct, culminating
in the prosecutor’s improper remark during rebuttal on the jury’s ability to rely on facts
that were not in evidence. Because the prosecutor’s misconduct was pervasive, this factor
29
weighs heavily in favor of determining that the misconduct was not harmless beyond a
reasonable doubt.
Finally, we consider whether the district court’s instructions limited any prejudicial
effect of the misconduct. See id. The state contends that the district court’s instructions
mitigated the potential prejudice. The state points out that, during the state’s case in chief,
the district court specifically instructed the jury to “disregard any evidence that was given
about [law-enforcement injuries] because it was not in relation to Ms. Vialard and was held
by the court earlier to not be admissible at trial.” And, while instructing the jury after
closing arguments, the district court also issued general instructions that went to some of
the misconduct. For instance, the district court instructed the jury that it should (1) “not
permit sympathy, bias, [or] prejudice to affect [its] decision,” (2) “base [its] verdict entirely
upon the evidence that has been received,” (3) “disregard all evidence [the court had]
ordered stricken or that [the jury had] been told to disregard,” and (4) “disregard” any
statement by the attorneys that conflicts with the evidence or the law.
We are not convinced that these cautionary instructions sufficiently limited any
prejudicial effect of the prosecutor’s pervasive misconduct. We acknowledge that the
district court did specifically address one instance of misconduct by instructing the jury to
disregard the evidence of Sergeant 2’s injuries. And we typically presume that the jury
followed the district court’s instructions. Whitson, 876 N.W.2d at 305. But that instruction
only went to one of five conceded instances of prosecutorial misconduct. And “once the
jury’s prejudices or passions have been invoked, a cautionary instruction may not be
sufficient to undo the damage, particularly, where as here, the [district] court’s curative
30
instruction, while strong, addressed some but not all of the misconduct.” State v. Porter,
526 N.W.2d 359, 365 (Minn. 1995) (emphasis added) (citation omitted). We are therefore
not persuaded that the one instruction completely mitigated any potential prejudice
resulting from all five conceded instances of prosecutorial misconduct.
Likewise, the district court’s general instructions about bias and evidence were
insufficient to ameliorate any potential prejudice. Even if those general instructions
correctly stated the law, they did not “obviously and clearly correct” the prosecutor’s
statements about “our community” or how Vialard would have pleaded had there been
“perfect” video evidence. See Portillo, 998 N.W.2d at 253-54 (noting that generalized
instructions about the presumption of innocence did not adequately correct prosecutor’s
erroneous statement of the law regarding the presumption of innocence).
Lastly, the prosecutor’s statement inviting the jury to consider facts not in evidence
came during the state’s rebuttal argument. Thus, Vialard had no opportunity to effectively
rebut the misconduct and correctly explain the law to the jury.8 And the supreme court has
expressed concern about misconduct that occurs during rebuttal because such misconduct
is “part of the last argument that the jury hear[s] before the district court [gives] the jury its
final instructions.” Id. at 253.
Weighing the relevant factors, we conclude that the prosecutorial misconduct
conceded to by the state was not harmless beyond a reasonable doubt. The state’s evidence

8 Notably, Vialard attempted to object to the prosecutor’s evidentiary comment during the
state’s rebuttal, but the district court instructed Vialard to “[w]ithhold objection” until the
end of the argument. And the district court only addressed Vialard’s objections after the
jury began its deliberations, leaving no opportunity to issue a curative instruction.
31
against Vialard was not particularly strong, the misconduct was pervasive, and the district
court’s instructions did not cure any prejudicial effect of the misconduct. On this record,
we cannot say that the guilty verdict was surely unattributable to the prosecutor’s
misconduct. We therefore conclude that the prosecutor failed to meet his “affirmative
obligation to ensure that” Vialard received a fair trial, and instead sought “a conviction at
any price.” Ramey, 721 N.W.2d at 300 (quotations omitted). Accordingly, Vialard is
entitled to a new trial.
Reversed and remanded.