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This opinion is nonprecedential except as provided by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
A24-1378

State of Minnesota,
Respondent,

vs.

Josiah David Delvecchio,
Appellant.

Filed August 25, 2025
Affirmed
Larson, Judge

St. Louis County District Court
File No. 69VI-CR-21-1391

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

Kimberly J. Maki, St. Louis County Attorney, Chris Florey, Assistant County Attorney,
Virginia, Minnesota (for respondent)

Andrew C. Wilson, Wilson & Clas, Minneapolis, Minnesota (for appellant)

Considered and decided by Larson, Presiding Judge; Larkin, Judge; and Bentley,
Judge.
NONPRECEDENTIAL OPINION
LARSON, Judge
This appeal arises from appellant Josiah David Delvecchio’s convictions for
conspiracy to commit first-degree premeditated murder, aiding-or-abetting attempted first-
degree premeditated murder, aiding-or-abetting first-degree assault, and aiding-or-abetting
2
second-degree assault. See Minn. Stat. §§ 609.17, sub ds. 1, 4(1), .175, subd. 2(2),
.185(a)(1), .221, subd. 1, .222, subd. 1 (2020). On appeal, Delvecchio argues
(1) respondent State of Minnesota presented insufficient evidence to sustain the conspiracy
conviction and (2) the district court erred when it denied his motion for a new trial based
on juror bias. Delvecchio also argues in his supplemental brief that the prosecutor engaged
in prosecutorial misconduct. We affirm.
FACTS
On July 10, 2021, L.M.B. (victim) was stabbed at a printshop she operated in
Babbitt, Minnesota. The state charged Delvecchio with four separate counts in connection
with the incident: (1) conspiracy to commit first-degree premeditated murder (count I);
(2) attempted first-degree premeditated murder, or—in the alternative —aiding-or -abetting
attempted first-degree premeditated murder (count II); (3) first-degree assault, or—in the
alternative—aiding- or-abetting first -degree assault (count III); and (4) second- degree
assault, or—in the alternative—aiding-or-abetting second-degree assault (count IV). See
Minn. Stat. §§ 609.17, subds. 1, 4(1), .175, subd. 2(2), .185(a)(1), .221, subd. 1, .222,
subd. 1. The jury found Delvecchio guilty of count I and the aiding-or-abetting alternatives
for counts II-IV. The district court sentenced Delvecchio on count I to 204 months in
prison. For counts II and III, the district court adjudicated Delvecchio “guilty without
sentence pursuant to agreement of the parties” under Minn. Stat. § 609.035 (2020). The
district court did not adjudicate count IV because it is an included offense of count III under
Minn. Stat. § 609.04 (2020).
3
The following facts relate to the specific claims raised in this appeal and are derived
from the trial record and posttrial proceedings.
I. Evidence Presented at Trial
The victim had been in a relationship with F.M. (boyfriend), an inmate at the
Minnesota Correctional Facility at Rush City (MCF-RC). The boyfriend, along with
Delvecchio’s codefendants Donald James Miller—who was also an inmate at MCF-RC—
and Dylan Thomas Peterson, were members of a group known as “Northern Empire.” In
the weeks prior to the stabbing, Miller and Peterson grew increasingly frustrated with the
victim and her operation of the printshop. These frustrations were captured on recorded
phone calls Miller made from prison to his girlfriend and Peterson.
In the phone calls, Miller and Peterson ultimately agreed that “[the victim]’s gotta
go” and “[s]he gotta lose everything.” They stated that they would “send a nuclear bomb
over there.” Miller and Peterson also discussed their system of “seekers,” including the
reward received if Peterson tells one of his seekers to “go do this deadly damage . . . [a]nd
he does that deadly damage.”
On July 9, 2021, Miller and Peterson confirmed their plan. Miller said to Peterson
that he told the boyfriend, “I’m gonna handle that shop and [the victim’s] goin with it . . .
I told him he better kill me, . . . cuz if I touch the streets, you know what’s up.” Peterson
responded that he was “gonna send the nuclear bomb.” To which Miller replied, “[I]t looks
all that much better . . . be like bro it wasn’t even me.” Peterson then said he had obtained
“a seeker” and that the seeker was either going to “make his mettle or . . . something[’] s
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gonna happen.” The call ended with Miller and Peterson “vot[ing] yes” to send the
“nuclear bomb.”
The next day, in the early afternoon of July 10, 2021, Peterson and Delvecchio
exchanged a series of social-media messages. The conversation largely discussed a
camping trip the two had planned for the weekend. Around 2:10 p.m., Peterson messaged
Delvecchio that he was going to “go grab that thing.” At 4:50 p.m., Delvecchio messaged
Peterson that he would be on his way to meet Peterson at the campground soon. Delvecchio
immediately followed up this message by asking if Peterson got “that long sleeve shirt and
sh-t . . . ?” Peterson responded affirmatively. Delvecchio and Peterson exchanged a few
more messages, and the conversation ended around 5:50 p.m. The campground discussed
in the messages is about 30 to 40 minutes from the printshop.
At about 7:45 p.m., while the victim, J.V. (bystander), and A.H. (friend) were in the
back of the printshop making shirts, a blue Dodge Ram pickup truck entered the printshop
parking lot. A person wearing a long-sleeve t-shirt, pants, and an ATV helmet exited the
vehicle (assailant). The assailant entered the printsho p and stabbed the victim with an
icepick. At trial, the victim testified that the assailant “stabbed [her] in the stomach three
times,” in the leg one time, and in the thumb one time. The friend testified that the assailant
stabbed the victim “three different times.” And the state submitted photographic evidence
of the victim’s injuries to her leg and thumb. During opening and closing arguments, the
state said the assailant stabbed the victim five times.
5
Also at trial, the victim and friend offered testimony regarding their belief as to the
identity of the assailant. Both identified Peterson, based on their recollection of the
assailant’s height, build, gait, arm tattoo, and helmet.
Following the stabbing, the assailant fled the store, entered the truck, and drove
away. The bystander followed the assailant out of the store and used a handgun to fire
multiple shots into the truck as it drove away. The friend immediately called 911 and
provided aid to the victim. Police arrived, and the victim went to the hospital.
Later that evening, M.W. (witness)—who lived about two miles from the
printshop—had just sat down for dinner when he noticed a blue Dodge Ram pickup truck
drive down his dead-end road. The truck parked between the witness’s garages, and the
witness “went outside to see what was going on.” The witness noticed the truck had a flat
tire and was leaking gasoline. The driver—Delvecchio—was the truck’s sole occupant and
told the witness that the truck was damaged while four-wheeling. Delvecchio asked for
assistance contacting a friend, and the two went inside the witness’s house to wait. Soon
after, a sheriff’s deputy arrived at the witness’s house and asked the witness if he “had
heard of anybody having a blue truck shot at in town.” The witness did not mention the
damaged truck parked between his two garages. After the deputy left, the witness asked
Delvecchio “what was really going on” and Delvecchio told the witness “that somebody
had emptied a clip from a gun into his truck.” A little while later, a male in a black car —
Peterson— picked up Delvecchio.
After Peterson and Delvecchio left, the witness called 911, and the deputy returned
to question the witness. The deputy had the truck towed. While searching the truck, law
6
enforcement noted damage consistent with bullet holes and found items containing
Delvecchio’s name and picture. Law enforcement also determined that the truck matched
an image from Delvecchio’s June 16, 2021 social-media message where he stated he “[g]ot
a truck now too.”
That night, officers arrested Peterson in connection with the stabbing. The next day,
July 11, 2021, the witness received threatening phone calls and text messages from
Delvecchio’s phone number. A few days later, on July 15, 2021, a local news station
received a social-media message from Delvecchio’s account.1 The message claimed the
news station improperly identified the assailant and requested a phone call. A news-station
employee later spoke with a male claiming to be Delvecchio. The male said he stabbed
the victim. The news -station employee called the police and relayed the conversation.
Delvecchio was arrested five months later.
II. Voir Dire and Posttrial Proceedings
A. Voir Dire
Before jury selection began, the parties jointly requested and prepared a written jury
questionnaire for potential jurors. Three questions on the questionnaire, and one juror’s
answers to those questions, were described by the district court as follows:
(34) Have you, a family member, or anyone close to you
ever been a suspect in, arrested for, or charged with a criminal
offense (not including minor parking or speeding-type traffic
offenses)? [The juror] checked “no.”

1 The messages were not located on Delvecchio’s social-media account when law
enforcement executed a search warrant.
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(43) Have you or any of your close friends or family
members ever been accused of harming, assaulting, or
planning to harm or assault another person? [The juror]
checked “no.”

(54) Do you have any concerns that might unduly
preoccupy you or prevent you from participating as a juror in
this trial? [The juror] checked yes and wrote in . . . “May know
both parties. May have gone to high school with victim and
may know Defendant from [the juror’s place of employment].
Also believe [I] had Defendant’s sister as a foster child.”

During voir dire, counsel for both parties questioned the juror individually, based
on the answers provided in the questionnaire. During questioning, the juror admitted that
he thought someone with the surname Delvecchio may have been incarcerated at his place
of employment—a correctional facility. But the juror explained that Delvecchio would not
have been under his supervision, and he did not personally remember Delvecchio. The
juror also stated that he recognized the victim’s name from high school, but noted that they
were not acquaintances. Finally, the juror said that Delvecchio’s sister (S) may have been
his foster child, and the following colloquy occurred:
STATE: Okay. And then you also mentioned . . . that [you]
also believe [you] had [Delvecchio’s] sister as a foster child?

JUROR: Possibly.

STATE: Can you tell me a little bit about that?

JUROR: All I remember about her was, around 2014 or
something, her name was [S]. She was about twelve years old.

STATE: [S]. And do you remember [S ]’s last name to be
Delvecchio?

JUROR: I do not. No. I don’t think it was.

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STATE: Okay. . . . [W]hat made you think that you might have
had his sister as a foster child? Was it the name that you
recognized, or was it –?

JUROR: The way I remember it, while I was there, she said
one of her brothers was at [the juror’s place of employment]
and did I know. I said he wasn’t on my crew. So, it all kind of
– I tried to piece it all together but –

STATE: Yup. Yup. If you don’t mind me asking, how long
was [S] in your care?

JUROR: A few months.

Following this conversation, the juror confirmed that none of these connections would
impact his decisionmaking in the case. Neither party moved to strike the juror for cause,
and Delvecchio did not use a peremptory challenge.
B. Posttrial Proceedings
After trial, Delvecchio filed a motion for a new trial, alleging juror misconduct and
structural error based on the juror’s “lack of candor” at voir dire.
2 In the alternative,
Delvecchio requested a Schwartz hearing. See Schwartz v. Minneapolis Suburban Bus Co.,
104 N.W.2d 301, 303 (Minn. 1960).3
The district court granted Delvecchio’s request for a Schwartz hearing. At the
Schwartz hearing, the juror testified that he still did not know if S was Delvecchio’s sister.

2 We note that Delvecchio’s motion included information filed under seal. While we do
not disclose the sealed information in this opinion, we have nevertheless reviewed the
information. See Minn. R. Civ. App. P. 112.02 , subd. 1 (“Materials filed in the [district]
court as ‘confidential’ or ‘sealed’ . . . will remain non-public on appeal . . . .”).
3 The purpose of a Schwartz hearing “is to avoid harassment of jurors and to provide a
record on appeal in cases where, after the jury renders the verdict, the losing party becomes
aware of facts which indicate the possibility of jury misconduct.” Zimmerman v. Witte
Transp. Co., 259 N.W.2d 260, 262 (Minn. 1977). When a losing party becomes aware of
9
After the juror denied knowing why S left his care, the juror was asked whether he was
“aware of any allegations [S] made against [him].” The juror indicated that it was possible
that S made an “inappropriate touch” allegation. The juror then explained that he spoke
with a caseworker about the allegation, told them nothing happened, “[a]nd that was the
end of it.” When asked why, despite this allegation, he responded “no” on the questionnaire
to the question about previously being “a suspect in, arrested for, or charged with a criminal
offense,” the juror responded that he “was never charged with anything.” The juror then
confirmed that, even if he had been certain during trial that S was Delvecchio’s sister, it
would not have affected his decision or “ability to be fair and impartial.” The juror
explained: “We had very strict orders from [the district court], instructions, and I took
them very seriously. Whoever he’s related to wouldn’t matter in the case.”
In an April 16, 2024 order, the district court denied Delvecchio’s motion for a new
trial. The district court determined that Delvecchio’s “right to a fair and impartial jury was
not violated” and “[s]tructural error did not occur” because the juror did not lack candor,
did not provide false or misleading information, and was not biased “even if [the juror] was
found to lack candor.” The district court explained that the juror’s answers to the
questionnaire “indicate[d] a desire to be candid,” because he “alerted” the parties to the
possible past relationship with Delvecchio’s sister and revealed more information when
asked additional questions.

possible juror misconduct, they must bring it to the district court’s attention “and, if it
appears that the facts justify doing so, the [district] court may then summon the
juror . . . and permit an examination in the presence of counsel for all interested parties and
the [district court] judge under proper safeguards.” Schwartz, 104 N.W.2d at 303.
10
DECISION
Delvecchio raises three arguments in this direct appeal. First, Delvecchio asserts
that the state presented insufficient evidence to sustain his conviction for conspiracy to
commit first-degree premeditated murder. Second, he argues the district court erred when
it denied his motion for a new trial on the basis that the juror exhibited bias and a lack of
candor during voir dire. Last, Delvecchio claims the prosecutor engaged in misconduct.
We address each argument in turn.
I.

Delvecchio first argues the state presented insufficient evidence to sustain his
conviction for conspiracy to commit first-degree premeditated murder. To find Delvecchio
guilty of conspiracy, the state needed to prove: “(1) an agreement between two or more
people to commit a crime and (2) an overt act in furtherance of the conspiracy.” State v.
Kuhnau, 622 N.W.2d 552, 556 (Minn. 2001); see also Minn. Stat. § 609.175, subd. 2
(2020).
Delvecchio argues the state presented insufficient evidence on the first element—
agreement. “Proof of a formal agreement to commit a crime is not required for a conspiracy
conviction.” State v. Hatfield, 639 N.W.2d 372, 376 (Minn. 2002). “If several persons
commit separate acts which form parts of a connected whole,” the jury may infer an
agreement between the participants. State v. Longo, 909 N.W.2d 599, 607 (Minn. App.
2018) (quotation omitted). “The parts or acts done by each must . . . not only tend to show
a prior unlawful combination, but negative the idea of lawful undertaking or purpos e.”
State v. Burns, 9 N.W.2d 518, 522 (Minn. 1943). There must be evidence presented for
11
“both knowledge of an agreement and . . . intent to commit the crime or act that is the
object of the conspiracy.” State v. Tracy , 667 N.W.2d 141, 146 (Minn. App. 2003)
(quotation omitted).
We must first determine whether the state used direct or circumstantial evidence to
prove the agreement element. Direct evidence is “based on personal knowledge or
observation and . . . if true, proves a fact without inference or presumption.” State v. Harris,
895 N.W.2d 592, 599 (Minn. 2017) (quotation omitted). Circumstantial evidence is
evidence from which the jury “can infer whether the facts in dispute existed or did not
exist.” Id. (quotation omitted).
Here, the parties contend, and we agree, that the state relied on circumstantial
evidence to prove an agreement. Therefore, we apply the heightened circumstantial-
evidence test. We first “identify the circumstances proved.” State v. Silvernail,
831 N.W.2d 594, 598 (Minn. 2013). In doing so, we “defer” to the factfinder’s “acceptance
of the proof of these circumstances and rejection of evidence in the record that conflicted
with the circumstances proved by the State.” State v. Hawes, 801 N.W.2d 659, 668 (Minn.
2011) (quotation omitted). Second, we must “determine whether the circumstances proved
are consistent with the hypothesis that the accused is guilty and inconsistent with any
rational hypothesis except that of . . . guilt.” Id. at 669 (quotation omitted). In this step,
we do not defer to the factfinder’s “choice between reasonable inferences” and “do not
review each circumstance proved in isolation.” Id. (quotation omitted). “Instead, we must
consider whether the circumstances presented are consistent with guilt and inconsistent, on
12
the whole, with any reasonable hypothesis of innocence.” State v. Andersen, 784 N.W.2d
320, 332 (Minn. 2010) (quotation omitted).
Beginning with the circumstances proved, the state established that: (1) Peterson
and Miller sought to murder the victim; (2) Peterson told Miller he had “a seeker” to do
the “deadly damage” and who would prove “his mettle”; (3) Peterson and Delvecchio were
friends; (4) on the day of the incident, Peterson told Delvecchio he was going to “go grab
that thing”; (5) Delvecchio responded to Peterson that he was on his way to meet Peterson
soon; (6) Delvecchio confirmed that Peterson got “that long sleeve shirt and sh-t”; (7) the
assailant arrived at the printshop in a blue Dodge Ram pickup truck; (8) the assailant
concealed their identity by wearing a long-sleeve t-shirt, pants, and an ATV helmet; (9) the
assailant stabbed the victim multiple times with an icepick; (10) the assailant fled in the
truck; (11) the bystander shot at the truck multiple times as it left the printshop;
(12) Delvecchio drove the truck to the witness’s residence two miles away from the
printshop later that evening; (13) Delvecchio told the witness that someone “emptied a clip
from a gun into his truck”; (14) Delvecchio was picked up by Peterson; (1 5) a search of
the truck revealed damage consistent with bullet holes, and items containing Delvecchio’s
name and picture; (16 ) social-media messages reflect Delvecchio owned a blue Dodge
Ram pickup truck as of June 16, 2021; (17) the witness received threatening messages from
Delvecchio’s phone number after law enforcement towed the truck; (18) a local news
station received a social-media message from Delvecchio’s account about the suspect in
13
the case; and (19) a male claiming to be Delvecchio called the news station and stated that
he stabbed the victim.4
We next analyze whether the circumstances proved are consistent with guilt. We
conclude that, based on these circumstances proved, it is reasonable to infer that
Delvecchio knew of, and was part of, the conspiracy to commit premeditated murder. The
evidence shows Delvecchio’s involvement with the conspiracy before, during, and after
the incident. Specifically, the social-media messages demonstrate that Delvecchio assisted
in collecting materials for the crime, Delvecchio’s truck was used in the commission of the
crime, and Delvecchio was located soon after the crime attempting to abandon the truck.
This circumstantial “evidence of a common plan, concerted conduct, [and] prior
involvement with [a] . . . co-conspirator” supports an inference that Delvecchio agreed with
Peterson and Miller to commit premeditated murder. Hatfield, 639 N.W.2d at 377; see
also Burns, 9 N.W.2d at 521 (“[A] conspiracy need not be established by direct evidence.
It may be inferred from the circumstances.”).
Delvecchio argues that even if the circumstances proved are consistent with guilt,
they do not exclude a reasonable inference other than guilt— that Delvecchio agreed to
commit an offense less serious than premeditated murder. We are not persuaded. Under
existing law, “[i]f several persons commit separate acts which form parts of a connected

4 Because the jury found Delvecchio guilty of the aiding-or-abetting alternatives for
counts II-IV, the parties dispute whether the state proved Delvecchio was the assailant. In
particular, the state asks us to rely on the friend’s testimony that they saw a “blue-eyed
kind of thing” inside the assailant’s helmet and evidence that Delvecchio has blue eyes.
Because we need not determine that Delvecchio was the assailant to find that he agreed to
engage in this conspiracy, we exclude this evidence from the circumstances proved.
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whole,” the jury may infer an agreement between the participants. Longo, 909 N.W.2d at
607 (quotation omitted). Here, the evidence presented at trial proved that Delvecchio took
specific acts to aid the conspiracy, including providing his truck and transporting clothing
for the assailant to use during the commission of the crime. Based on Delvecchio’s level
of involvement in the commission of the crime, it is unreasonable to infer that Delvecchio
conspired with Miller and Peterson to commit a less-serious crime than that which Miller
and Peterson had themselves agreed to commit. Thus, we conclude the circumstances
proved do not support any reasonable inference other than guilt.
Accordingly, we conclude the state presented sufficient evidence to sustain
Delvecchio’s conspiracy conviction.
II.
Delvecchio next argues the district court abused its discretion when it denied his
motion for a new trial following the Schwartz hearing. “A [district] court’s decision to
deny a motion for a new trial on the basis of jury misconduct will not be overturned absent
an abuse of discretion.” State v. Kelley, 517 N.W.2d 905, 910 (Minn. 1994). “A district
court abuses its discretion when its decision is based on an erroneous view of the law or is
against logic and the facts in the record.” State v. Hallmark, 927 N.W.2d 281, 291 (Minn.
2019) (quotation omitted).
A party seeking to obtain a new trial based on juror bias “bears the burden of
demonstrating actual bias” at a Schwartz hearing. State v. Evans, 756 N.W.2d 854, 870
(Minn. 2008). Actual bias refers to “a state of mind on the part of the juror, in reference to
the case or to either party, which would prevent the juror from trying the issue impartially
15
and without prejudice to the substantial rights of either party.” Id. (quotation omitted).
“Actual bias is a question of fact, which the district court is in the best [position] to
evaluate.” Id. (citations omitted). The district court’s finding that a juror lacked actual
bias is based on its “determinations of demeanor and credibility and, thus, entitled to
deference.” Id. (quotation omitted). We review the district court’s factual findings for
clear error. Id. “The clearly erroneous standard requi res that we be left with the definite
and firm conviction that a mistake has been made.” Id. (quotation omitted).
Delvecchio first argues the district court clearly erred when it found the juror never
“lacked candor” and that the juror’s testimony during voir dire and the Schwartz hearing
were “consistent.” Because the record supports the district court’s findings, we are not
persuaded. See State v. Beer, 367 N.W.2d 532, 535 (Minn. 1985); cf. State v. Benedict,
397 N.W.2d 337, 340 (Minn. 1986); State v. Chauvin, 989 N.W.2d 1, 23-24 (Minn. App.
2023), rev. denied (Minn. July 18, 2023).
Here, the record reflects that the juror responded truthfully on the questionnaire.
With regard to the question about the criminal offense, the juror explained that he answered
“no” because S’s allegation did not involve any actual charges. Thus, the two answers
were not inconsistent and did not indicate any untruthfulness. And, as the district court
observed, the questionnaire did “not ask[] if he had ever been accused of a crime.” With
respect to the question about being accused of assault, Delvecchio did not ask any specific
questions at the Schwartz hearing about the juror’s questionnaire answer—aside from the
general question about whether any “allegations” were made against him by S. Thus, there
is no indication the questionnaire answer was not truthful or consistent with the
16
explanations given. Finally, we agree with the district court’s determination that the juror
flagging his potential past relationship with S “indicate[d] a desire to be candid.” And the
record shows that the juror demonstrated a willingness to reveal more information upon
further questioning during voir dire and the Schwartz hearing. Based upon this record, the
district court did not clearly err when it found the juror candidly answered the questionnaire
and testified at voir dire.
Delvecchio disagrees, relying strongly on the juror’s statement during voir dire that
he provided “[a]ll” of the information he remembered about S. According to Delvecchio,
because the juror revealed more details at the Schwartz hearing, the juror’s statement
during voir dire lacked candor. We are not persuaded. As the supreme court explained in
Beer, a juror does not lack candor simply because more specific probing at a Schwartz
hearing elicits a more detailed response. 367 N.W.2d at 535 (explaining defense counsel
failed to “ask the right question at voir dire to elicit [specific] information” received at
posttrial questioning); cf. Pulczinski v. State, 972 N.W.2d 347, 362 (Minn. 2022) (“The
proper remedy for teasing out potential juror bias during voir dire is for lawyers to ask
probing questions of the juror”); Benedict, 397 N.W.2d at 340 (concluding district court
properly denied Schwartz hearing request because defen se counsel failed to “ask the sort
of clear question that, absent a lack of credibility on the juror’ s part, necessarily would
have elicited the disclosure of the sort of information that the foreman withheld”); Chauvin,
989 N.W.2d at 23 (concluding district court properly denied Schwartz hearing request
because jury questionnaire did not contain “type of probing questions[s] that would elicit
a specific response”). And, reviewing the record, Delvecchio did not ask the kind of
17
probing questions during voir dire that would have elicited the same responses the juror
provided at the Schwartz hearing. We, therefore, conclude the district court did not clearly
err when it found the juror never “lacked candor.”5
Delvecchio next argues that the district court applied an incorrect legal standard
when it denied his motion for a new trial following the Schwartz hearing. To make this
argument, Delvecchio targets a single sentence from the conclusion paragraph in the
district court’s order, asserting the district court only analyzed whether the juror was biased
“towards [Delvecchio]” rather than “towards ‘the case.’” (Emphasis omitted.) We review
this issue de novo. State v. Varner, 643 N.W.2d 298, 303 (Minn. 2002).
Under Minn. R. Crim. P. 26.02, subd. 5(1), parties may challenge a juror for cause
if “[t]he juror’s state of mind – in reference to the case or to either party – satisfies the court
that the juror cannot try the case impartially and without prejudice to the substantial rights
of the challenging party.” Here, the district court articulated this legal standard, identifying
bias as “a state of mind on the part of the juror, in reference to the case or to either party,
which would prevent the juror from trying the issue impartially and without prejudice to
the substantial rights of either party.” (Emphasis added) (quoting State v. Brown, 732
N.W.2d 625, 629 n. 2 (Minn. 2007)). The district court then applied that legal standard to
Delvecchio’s arguments. See Caldwell v. State, 853 N.W.2d 766, 773 (Minn. 2014)
(explaining that the district court must both accurately state and correctly apply the legal
standard). While it is true that the district court’s conclusion paragraph mentioned bias

5 Because we conclude the juror did not lack candor, we need not address Delvecchio’s
argument that the juror’s lack of candor created a rebuttable presumption of bias.
18
towards Delvecchio, when read in context , the district court was clearly responding to
Delvecchio’s primary argument that the juror was biased towards Delvecchio because of
his past relationship with S. We, therefore, conclude the district court did not legally err.
For these reasons, we conclude the district court did not abuse its discretion when it
denied Delvecchio’s motion for a new trial following the Schwartz hearing.
III.
Finally, Delvecchio argues in his supplemental brief that the prosecutor engaged in
misconduct when he elicited false testimony from the victim. Specifically, Delvecchio
challenges the repeated assertions at trial that the victim was stabbed in the stomach
because the exhibits only “display a cut on a hand and a stab wound to the leg.”
We review unobjected -to prosecutorial misconduct under a modified plain-error
standard. State v. Ramey, 721 N.W.2d 294, 302 (Minn. 2006). The defendant bears the
burden of establishing an error that is plain. Id. “An error is plain if it . . . contravenes
case law, a rule, or a standard of conduct.” Id. (quotation omitted). If the defendant meets
this burden, the burden shifts to the state to prove that the error did not affect the
defendant’s substantial rights. See id. The state meets this burden if it shows that there is
“no reasonable likelihood that the absence of the misconduct in question would have had
a significant effect on the verdict of the jury.” Id. (quotation omitted). “If the State fails
to demonstrate that the alleged error did not affect the defendant’s substantial rights, we
consider whether the error should be addressed to ensure fairness and the integrity of
judicial proceedings.” State v. Parker, 901 N.W.2d 917, 926 (Minn. 2017).
19
“[A] conviction obtained through use of false evidence, known to be such by
representatives of the State, must fall under the Fourteenth Amendment.” Napue v. Illinois, 360 U.S. 264, 269 (1959). “[D]eliberate deception of a court and jurors by the presentation
of known false evidence is incompatible with rudimentary demands of justice.” Giglio v.
United States, 405 U.S. 150, 153 (1972) (quotation omitted). “A prosecutor commits
misconduct by intentionally misstating evidence,” State v. Mayhorn, 720 N.W.2d 776, 788
(Minn. 2006), and by “eliciting inadmissible evidence,” Ramey, 721 N.W.2d at 300 (citing
State v. Harris, 521 N.W.2d 348, 353-54 (Minn. 1994)). A new trial is required if false
testimony could, in any reasonable likelihood, have affected the judgment of the jury. See
Napue, 360 U.S. at 271-72.
Here, the prosecutor stated in opening and closing arguments that the victim was
stabbed a total of five times—three times in the stomach, once in the leg, and once in the
thumb. The victim’s testimony supported the prosecutor’s statements. While the friend
may have provided somewhat conflicting testimony, testimony from the victim is direct
evidence of the harm she suffered from the incident. See State v. Epps, 949 N.W.2d 474,
487 (Minn. App. 2020) (explaining that witness testimony, including victim testimony, “is
considered direct evidence because it is based on personal knowledge or observation and
that if true, proves a fact without inference or presumption.” (quotation omitted)), aff’d
(Minn. Sept. 15, 2021). And because the prosecutor’s arguments to the jury were “based
on the evidence produced at trial,” State v. Porter, 526 N.W.2d 359, 363 (Minn. 1995), we
conclude the state did not err when it described the victim’s wounds during opening and
closing arguments. Additionally, “when evidence is admissible under the Minnesota Rules
20
of Evidence, a prosecutor does not commit misconduct by introducing the evidence at
trial.” State v. Mosley, 853 N.W.2d 789, 801 (Minn. 2014). Therefore, the prosecutor did
not err when they asked the victim about the harm she suffered from the stabbing because
the relevant testimony was properly elicited under the rules of evidence. See Minn. R.
Evid. 401-402.
For these reasons, we conclude the prosecutor did not commit prosecutorial
misconduct.
Affirmed.