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This opinion is nonprecedential except as provided by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
A24-1310

State of Minnesota,
Respondent,

vs.

Anthony Jabri Santos,
Appellant.

Filed June 30, 2025
Affirmed
Bjorkman, Judge

Dakota County District Court
File No. 19HA-CR-23-545

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

Kathryn M. Keena, Dakota County Attorney, Todd P. Zettler, Assistant County Attorney,
Hastings, Minnesota (for respondent)

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

Considered and decided by Bratvold, Presiding Judge; Bjorkman, Judge; and Harris,
Judge.
NONPRECEDENTIAL OPINION
BJORKMAN, Judge
Appellant challenges his conviction of aiding and abetting first-degree aggravated
robbery, arguing that the cumulative effect of evidentiary errors, violation of the district
2
court’s sequestration order, and unobjected-to prosecutorial misconduct denied him a fair
trial. We affirm.
FACTS
During the morning of November 21, 2021, J.S. was starting his vehicle outside his
apartment building when a silver four-door sedan with tinted windows pulled up next to
him. Three or four men got out of the sedan and “put guns all over [him].” J.S. recognized
one of the men as Eugene Santos, a long-time friend with whom he had a recent falling
out, but did not recognize the other men. The men began rifling through J.S.’s car. He
tried to flee, but they hit him in the head. The men took J.S.’s wallet, which contained his
driver’s license and money, and his backpack.
J.S.’s neighbor, M.N., heard yelling and looked out her window to see what was
going on. She saw three or four men pushing and pulling on J.S. and heard J.S. yelling,
“No, no, no.” She also thought she saw one of the men holding a gun. The men noticed
M.N. watching and drove off in their vehicle. M.N. called out to J.S. to ask if he wanted
her to call police; he said yes. She called 911, and an officer responded in a few minutes
and asked J.S. about the incident. As he spoke with J.S., he learned that another officer
had stopped a vehicle matching the description of the suspects’ vehicle. The officer then
left the scene with J.S. to identify the people in the stopped vehicle.
The officer who had stopped the vehicle, Officer Emily Danner, identified the driver
as appellant Anthony Jabri Santos. At one point, when Officer Danner expressed concern
about a passenger, Santos said, “That’s my uncle.” But before Officer Danner was able to
identify the others in the vehicle, and before the officer with J.S. had arrived, Santos drove
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off. Police briefly pursued the vehicle but ended the pursuit for public-safety reasons.
Officer Danner later confirmed that one of the backseat passengers was Eugene Santos,
whom J.S. had named as one of the suspects.
That afternoon, Officer Tristan Jakobson responded to an abandoned vehicle
“associated with [a] call” that a partner of his was “working on.” He photographed the
vehicle and had it towed to the police evidence bay. The vehicle was the same one Santos
had been driving.
Almost two weeks later, police met with J.S. to return his wallet and backpack to
him, which were located in the recovered vehicle. They also took a formal, video-recorded
statement from him about the incident.
Santos was charged with aiding and abetting first-degree aggravated robbery. At
trial, J.S. and M.N. testified consistent with the facts above. So did several officers
involved in responding to and investigating the incident, including Officer Danner an d
Officer Jakobson, over Santos’s objection that those two witnesses violated the court’s
sequestration order. Also over Santos’s objection, the district court admitted the audio
recording of M.N.’s 911 call and the video recording of J.S.’s statement to police. The jury
found Santos guilty, and the district court sentenced him to 58 months in prison.
Santos appeals.

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DECISION
I. The district court did not abuse its discretion by admitting the audio recording
of M.N.’s 911 call and the video recording of J.S.’s statement to police.

We review a district court’s evidentiary rulings for an abuse of discretion. Dolo v.
State, 942 N.W.2d 357, 362 (Minn. 2020) . To obtain reversal, the appellant must
demonstrate both error and resulting prejudice. State v. Griffin, 846 N.W.2d 93, 103 (Minn.
App. 2014), rev. denied (Minn. Aug. 5, 2014).
The proponent of evidence must establish its relevance, including an adequate
foundation for its admission. Turnage v. State, 708 N.W.2d 535, 542 (Minn. 2006). “The
requirement of authentication or identification as a condition precedent to admissibility is
satisfied by evidence sufficient to support a finding that the matter in question is what its
proponent claims.” Minn. R. Evid. 901(a). One type of authentication is testimony from
a witness with knowledge that “a matter is what it is claimed to be.” Id. (b)(1). This type
of authentication is appropriate for evidence like photographs and video recordings if a
witness confirms that the evidence is a “representation” of something they observed. In re
Welfare of S.A.M., 570 N.W.2d 162, 164 (Minn. App. 1997); see Scott v. State, 390 N.W.2d
889, 893 (Minn. App. 1986) (concluding testimony of security guard who watched football
game was sufficient to authenticate video of the game).
The state presented this type of testimony to authenticate the audio recording of
M.N.’s 911 call and the video recording of J.S.’s statement to police, eliciting an
affirmation from each that the recording in question is a “ fair and accurate depiction” of
their statements and interaction with authorities. Santos asserts that this testimony did not
5
establish a sufficient foundation to admit the two recordings. We address each recording
in turn.
Audio Recording
Santos contends M.N.’s testimony that the audio recording is a “fair and accurate”
representation of her 911 call is insufficient to establish foundation for the recording
because the state did not fulfill the “seven foundational elements that must be established
before a tape recording can be admitted” that our supreme court announced in Turnage.
708 N.W.2d at 542 (quoting Furlev Sales & Assocs., Inc. v. N. Am. Auto. Warehouse, Inc.,
325 N.W.2d 20, 27 n.9 (Minn. 1982)). This argument is unavailing. Unlike this case,
Turnage did not involve authentication by participants in the recorded statements. It
involved a technician’s testimony purporting to authenticate a tape recording of prisoner
phone calls. Id. This distinction is significant. The authentication task in Turnage required
other foundational elements precisely because the state lacked what is present here—
witnesses who knew, based on personal experience, that the recording in question is what
it is claimed to be— a conversation in which they to ok part. Santos identifies no binding
authority applying Turnage (or otherwise applying the Furlev requirements) in such a
context. Nor have we discovered any. Rather, the plain language of Minn. R.
Evid. 901(b)(1), together with Scott and S.A.M., permit authentication of an audio (or
video) recording based on the testimony of a person with knowledge of the events captured
in the recording. As such, the district court did not abuse its discretion by admitting the
audio recording based on M.N.’s testimony that it fairly and accurately represents her 911
call.
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Video Recording
Santos’s only challenge to the video recording is that J.S. “could not” establish that
the recording had not been “altered or modified” and that it was, in fact, altered because
there is an “unexplained” lapse of five seconds in the recording. We are not persuaded.
Santos does not dispute that the recording is otherwise admissible under Minn. R.
Evid. 901(b)(1) based on J.S.’s testimony that it is, as the state argued, an accurate
depiction of the statement he made to police. And Santos identifies nothing in rule 901 or
caselaw that precludes admission of an otherwise admissible video recording simply
because it contains a brief lapse, particularly when the brevity of the lapse—five seconds
out of a seven-minute video—and the absence of any mention of it in the record shows that
it had no material impact on the fidelity of the recording. On this record, we discern no
abuse of discretion by the district court in admitting the video recording.
II. The district court did not abuse its discretion by declining to exclude the
testimony of the officers who violated the court’s sequestration order.

Minn. R. Crim. P. 26.03, subd. 8, permits district courts to “sequester witnesses
from the courtroom before their appearance.” Violation of a sequestration order does not
warrant a new trial unless “[p]rejudice resulting from [the] violation . . . [is] shown.” State
v. Erdman, 383 N.W.2d 331, 334 (Minn. App. 1986), rev. denied (Minn. Apr. 24, 1986);
see State v. Martin, 773 N.W.2d 89, 110 (Minn. 2009) (citing Erdman, 383 N.W.2d at 334).
It is undisputed that Officers Danner and Jakobson violated the sequestration order
by speaking to each other in the courtroom. Indeed, the prosecutor brought the violation
to the court’s attention, acknowledging it as such. But it is equally undisputed that the
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contact between the two was limited: Officer Danner approached Officer Jakobson and
said, “Hi. Long time no see.” Santos expressly “concedes that he did not demonstrate
prejudice” from the violation but urges us to conclude that the district court nevertheless
should have excluded the officers’ testimony as a sanction for the violation. On this record,
and given the plain parameters of binding caselaw, we discern no abuse of discretion by
the district court in declining to do so.
III. Santos has not demonstrated plain error in t he prosecutor ’s unobjected-to
rebuttal closing argument.

When an appellant does not object during trial, we review claims of prosecutorial
misconduct under a modified plain-error standard. State v. Ramey, 721 N.W.2d 294, 302
(Minn. 2006). Under this standard, the appellant bears the burden of showing that there
was an error, and that it was plain. Id. If the appellant establishes plain error, “the burden
shifts to the [s]tate to demonstrate that the plain error did not affect the [appellant]’s
substantial rights.” State v. Parker, 901 N.W.2d 917, 926 (Minn. 2017).
Santos argues that the prosecutor committed plainly evident misconduct during
rebuttal closing argument by urging the jurors to place themselves in J.S.’s shoes. Santos
is correct that it is improper for the state to “invite the jurors to put themselves in the shoes
of the victim.” State v. Thompson, 578 N.W.2d 734, 742 (Minn. 1998) (quoting State v.
Johnson, 324 N.W.2d 199, 202 (Minn. 1982)). But this rule specifically prohibits urging
jurors to sympathize with the victim’s experience of the offense. See Thompson, 578
N.W.2d at 742 (discussing argument that victim was “awakened to probably one of the
most terrible sights that any mother can see”); Johnson, 324 N.W.2d at 202 (concluding no
8
error in argument urging jurors to consider whether they would be “put in fear if someone
followed them at night and shot at them” partially because it was not “calculated to cause
the jury to decide the case on the basis of passion rather than reason”). It does not preclude
asking jurors to call upon their own experience in assessing a victim’s credibility. State v.
Jones, 753 N.W.2d 677, 692 (Minn. 2008); see Martin, 773 N.W.2d at 106 (recognizing
that the state may “argue that a witness was or was not credible”). Nor does it preclude the
prosecutor from “fairly meet[ing]” defense arguments about a victim’s credibility. Martin,
773 N.W.2d at 106. In determining whether a prosecutor struck the appropriate balance,
we consider the closing argument as a whole. State v. Swanson, 707 N.W.2d 645, 656
(Minn. 2006).
Santos points to two segments of the prosecutor’s rebuttal as plain misconduct. In
the first segment, the prosecutor argued:
Ask yourself the question: When you got guns pointed at your
head, people ransacking the car, threatening to kill you, hitting
you in the head, are you really—is it reasonable for you to say
three or four [people], or do you have to be very specific about
that?

This argument responded to defense counsel’s statement that J.S. “vacillated, saying that
three or four or five people robbed him.” This statement challenged J.S.’s credibility, and
the prosecutor’s rebuttal responded to that challenge by asking the jurors to consider
whether the claimed “vacillat[ion]” was understandable under the circumstances or a mark
of dishonesty. Indeed, Santos seems to acknowledge as much by asserting, in discussing
prejudice, that the prosecutor’s comments were “clearly intended to directly counter
defense counsel’s argument and persuade the jury that the victim’s demeanor and
9
inconsistent statements were understandable under the circumstances.” As such, the
prosecutor’s argument was not error, let alone plain error.
In the second challenged segment, the prosecutor argued:
[Defense counsel] talked about [J.S.] not wanting to be here.
Would you? Would you want to be here testifying about the
time that you got robbed, having the Defendant sitting across
from you?

Just after the segment that Santos highlights, the prosecutor went on:
That he was rambling and—yeah, you’re right, I did have a
little hard time controlling him. But compare that with what
the first video that you saw with [the officer who responded to
the 911 call].

. . . .

. . . and compare it to the interview he did back at the
police station.

This argument plainly responded to defense counsel’s suggestion that J.S. did not tell the
jury “the full story” because he “didn’t want to be here,” he was “rambling and disjointed”
in his testimony, and the prosecutor “had a tough time keeping him on track.” Once again,
the prosecutor countered a defense challenge to J.S.’s credibility by asking the jury to
consider, based on their own experience, whether J.S.’s uncooperativeness was about
nerves rather than dissembling, and whether his rambling testimony was merely the way
he communicates (as indicated in the other evidence) or was a mark of fabrication. As
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such, it likewise was not erroneous. On this record, Santos is not entitled to relief based
on the prosecutor’s rebuttal argument.1
Affirmed.

1 Santos contends the claimed errors collectively denied him a fair trial. State v. Yang, 774
N.W.2d 539, 560 (Minn. 2009) (recognizing that demonstrated errors, “when taken
cumulatively,” may have the effect of “ denying [the] appellant a fair trial”). But as we
discuss above, the only trial error that Santos has identified is the nonprejudicial violation
of the sequestration order. As such, he is not entitled to relief based on cumulative error.