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This opinion is nonprecedential except as provided by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
A24-1491

State of Minnesota,
Respondent,

vs.

Donta Jaboat Brown,
Appellant.

Filed September 8, 2025
Affirmed; motion denied
Smith, Tracy M., Judge

Hennepin County District Court
File No. 27-CR-23-10460

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

Mary F. Moriarty, Hennepin County Attorney, Britta Nicholson, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Eva F. Wailes, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Smith, Tracy M., Presiding Judge; Frisch, Chief Judge;
and Johnson, Judge.
NONPRECEDENTIAL OPINION
SMITH, TRACY M., Judge
In this direct appeal from a final judgment of conviction for second-degree
intentional murder for the benefit of a gang, appellant Donta Jaboat Brown argues that
(1) the district court abused its discretion by admitting a prior recorded statement of a
2
witness under the residual exception to the hearsay rule; (2) the district court abused its
discretion by admitting cumulative and prejudicial gang-related evidence; (3) the
prosecutor committed misconduct by eliciting hearsay, appealing to racial stereotypes,
injecting a personal opinion into the case to endorse the credibility of a witness, and
improperly making arguments in the opening statement; and (4) the cumulative effect of
these errors deprived Brown of a fair trial. Because we discern no error, we affirm.
FACTS
The following factual summary is drawn from Brown’s jury trial and relevant court
records.
The Shooting
Around 4:30 a.m. on April 9, 2023, Minneapolis police responded to a reported
shooting in north Minneapolis. Upon arriving at the scene, officers observed a handful of
people standing in front of a house. As the officers approached, they observed that the
people were surrounding a man who was lying on his back in the house’s front yard. The
man, who officers later identified as Q.Y., was bleeding from his head and neck area and
was nonresponsive. An officer began CPR on Q.Y. Soon thereafter, Q.Y. was transported
to the hospital where he was pronounced dead. An autopsy showed that Q.Y. was shot
twice—once in the head and once in the neck, both times near his left ear—from an
“intermediate range,” meaning somewhere between inches to a few feet away.
Police Investigation
During the subsequent police investigation, a forensic scientist identified Q.Y.’s
DNA on two discharged cartridge casings that police had found at the scene. Brown’s DNA
3
was not found on the casings. Police searched the house, and Brown’s DNA was not found
inside. Police determined that a nine-millimeter semi-automatic handgun was used to shoot
Q.Y., but the weapon was never found.
About four days after the shooting, police received a statement from E.A., who told
police that he had witnessed the shooting. According to police, E.A. stated that he was with
Q.Y. on the night of the shooting and that they had been at a house in north Minneapolis
for an “after-set party.” E.A. stated that he had been on the front-porch area of the house
when he observed the following: Brown left the house, Brown noticed that Q.Y. was in the
front yard, Q.Y. was kneeling down to tie his shoes, and Brown took out a handgun and
shot Q.Y. twice. E.A. knew it was Brown because E.A. had known Brown for over a
decade.
About a month later, on May 17, 2023, police received a statement from K.N., who
told police that he had been with Brown the night of the shooting. According to police,
K.N. stated that he and Brown had arrived at the party together and that, as they were
leaving, Brown shot Q.Y. while Q.Y. was bending down to tie his shoes. K.N. stated that
he had been close enough to the shooting that he believed that Q.Y.’s blood was on his
shoes. K.N. gave the police his shoes, and DNA testing confirmed that Q.Y.’s blood was
on K.N.’s left shoe.
In addition to the eyewitness reports, officers were familiar with Brown and Q.Y.
and knew that Brown was a member of the Stick Up Boys street gang, which is a sub-
clique of another gang, the Lows, and that Q.Y. had previous associations with rival gangs,
4
specifically, the gangs Taliban/Young N Thuggin (YNT), 1 which are sub-cliques of
another gang, the Highs. The Highs and the Lows are the predominant gangs in north
Minneapolis and “are in a war with each other”—members of each group refer to members
of the other as “ops,” meaning “opposition.” Further, police knew that reputation is a core
part of gang culture, and, if a gang member were to shoot an opposing or rival gang
member, that act would build both the shooter’s reputation and the reputation of their gang.
Brown’s Arrest and Charges
On May 17, 2023, the same day that K.N. made his report, police arrested Brown.
Two days later, the state charged Brown with one count of second-degree intentional
murder for the benefit of a gang, in violation of Minnesota Statutes sections 609.19,
subdivision 1(1), and 609.229 (2022), and with one count of second-degree intentional
murder, in violation of Minnesota Statutes section 609.19, subdivision 1(1).
K.R.’s Statement
In mid-July 2023, an inmate at the Hennepin County jail, K.R., provided two of the
homicide detectives assigned to Q.Y.’s case with a statement, which was recorded. In the
recording, K.R. stated that he had talked to Brown in the jail five days earlier, when both
K.R. and Brown were walking together to “medical.” K.R. stated that he knew Brown
because “everybody in the Lows knows him.” K.R. stated that Brown told K.R. about “the
op” Q.Y. and that Brown confessed to K.R. that he had shot Q.Y. outside when Q.Y. was
“snoozing” at the party. K.R. stated that Brown said that “any time he ever get a chance

1 According to police, the Taliban used to be a separate sub-clique of the Highs but
eventually became part of YNT.
5
like that, he gonna take it every time.” During K.R.’s statement, an officer asked for
clarification about the word “snoozing,” and K.R. agreed that “snoozing” meant that Q.Y.
was not paying attention.
Jury Trial and Sentencing
The district court held a jury trial in May 2024. The state initially called 19
witnesses. Among the state’s witnesses were the two eyewitnesses, E.A. and K.N., who
recounted what they had reported to police —that they witnessed Brown shoot Q.Y. The
state also called K.R., but he initially refused to answer questions and then recanted his
recorded statement, claiming that he was forced by police to make the statement about
Brown confessing to shooting Q.Y. Nevertheless, one of the homicide detectives assigned
to Q.Y.’s case, Sergeant Andrew Schroeder, testified that K.R. had provided him with a
statement that Brown confessed to killing Q.Y., and the district court subsequently
admitted the recording of K.R.’s statement into evidence. Sergeant Schroeder also provided
other testimony about the investigation as well as expert testimony about the gangs in north
Minneapolis. Finally, another detective who testified as a witness for the state provided
evidence showing that a phone that Brown had been known to use “was in the immediate
area consistent with [the house where the shooting occurred] at the time of the homicide.”
The defense then called three witnesses who testified that Brown was not at the party when
Q.Y. was shot. After that, the state called two additional witnesses to rebut Brown’s alibi.
The jury returned a verdict of guilty on both counts. The district court entered a
conviction for second- degree intentional murder for the benefit of a gang and sentenced
Brown to the presumptive sentence of 438 months in prison.
6
Brown appeals.
DECISION
Brown makes four arguments on appeal, challenging (1) the admission of K.R.’s
prior recorded statement, (2) the admission of gang-related expert testimony and photos,
(3) several aspects of the prosecutor’s conduct, and (4) whether Brown received a fair trial
given the cumulative effect of the errors. We address each of Brown’s arguments in turn.
I. The district court did not abuse its discretion by admitting K.R.’s prior
recorded statement under the residual exception to the hearsay rule.
Brown argues that the district court abused its discretion by admitting, over his
objection, the prior recorded statement of K.R. under the residual exception to the hearsay
rule because K.R.’s “statement lacked circumstantial guarantees of trustworthiness, was
not more probative than other evidence, and did not serve the interests of justice.”
Evidentiary rulings are reviewed for a clear abuse of discretion. State v. Ali, 855
N.W.2d 235, 249 (Minn. 2014). To obtain reversal based on an objected-to evidentiary
error that does not implicate a constitutional right, an appellant “must prove that there is a
reasonable possibility that the wrongfully admitted evidence significantly affected the
verdict.” State v. Peltier, 874 N.W.2d 792, 802 (Minn. 2016) (quotation omitted).
Hearsay “is a statement, other than one made by the declarant while testifying at the
trial or hearing, offered in evidence to prove the truth of the matter asserted.” Minn. R.
Evid. 801(c). It is generally “not admissible except as provided by [the Minnesota Rules
of Evidence] or by other rules prescribed by the [Minnesota] Supreme Court or by the
Legislature.” Minn. R. Evid. 802. Hearsay that is not covered by a specific exception may
7
still be admitted under the residual hearsay exception provided by Minnesota Rule of
Evidence 807. State v. Hallmark, 927 N.W.2d 281, 291 (Minn. 2019). Rule 807 provides:
A statement not specifically covered by Rule 803 or 804
but having equivalent circumstantial guarantees of
trustworthiness, is not excluded by the hearsay rule, if the court
determines that (A) the statement is offered as evidence of a
material fact; (B) the statement is more probative on the point
for which it is offered than any other evidence which the
proponent can procure through reasonable efforts; and (C) the
general purposes of these rules and the interests of justice will
best be served by admission of the statement into evidence.

To determine whether to admit a hearsay statement under rule 807, the district court
conducts a two-step analysis. Id. at 292. “First, the district court must look at the totality
of the circumstances to determine whether the hearsay statement has circumstantial
guarantees of trustworthiness.” Id. (quotations omitted). Second, it must determine whether
requirements (A) through (C) listed in rule 807 are met. Id. at 293. If the district court
evaluates some, but not all, aspects of rule 807, appellate courts may independently review
the record to determine whether the statement at issue is admissible under the rule.2 See id.
at 294-97.

2 Brown argues for the first time in his reply brief that the district court’s failure to explicitly
address the three enumerated requirements of rule 807 is reversible error. Brown bases his
argument on State v. Wersinger, a nonprecedential opinion in which we decided not to
conduct an independent review of the facts to determine whether the requirements under
rule 807 were met because “[t]he district court provided no legal analysis on rule 807, and
the record [was] also devoid of any findings or analysis concerning the recorded statement
itself.” No. A19-0738, 2020 WL 2703718, at *4 (Minn. App. May 26, 2020). The state has
moved to strike this argument, claiming that this is a new procedural argument that was
not raised in Brown’s principal brief.

Wersinger is not persuasive here. See Minn. R. Civ. App. P. 136.01, subd. 1(c)
(stating that nonprecedential opinions may be considered for their persuasive value). As
8
We address both steps in our analysis of the district court’s admission of K.R.’s
statement. But before doing so, we provide the following additional details about t he
circumstances that inform our analysis.
K.R. initially refused to testify at trial. A fter a discussion between the parties, the
district court ordered K.R. to the stand for the prosecutor to ask whether K.R. knew Brown
and whether K.R. spoke to an officer in July 2023. K.R. refused to answer the prosecutor’s
questions, but he responded to defense counsel on cross-examination, agreeing that he
never had a meeting with Brown, that police had given him the information that he then
gave the detectives in his recorded statement, and that he felt coerced into saying that he
met with Brown.
Sergeant Schroeder testified after K.R. and stated that he took a recorded statement
from K.R. in July 2023, that K.R. was the one who reached out and voluntarily provided
the statement, that K.R. was not fed information or pressured to make a statement, that
K.R. had provided truthful information in the past, and that K.R. did not request or receive
any benefit in exchange for making the statement. But Sergeant Schroeder did note that,
when K.R. made his statement, he was facing criminal charges and he provided information

described below, the record here is not completely devoid of analysis related to rule 807 ;
rather, Brown’s case is comparable to Hallmark, in which the district court admitted a prior
recorded statement based on factors related to circumstantial guarantees of trustworthiness
and “without discussing the three prongs of Rule 807 itself.” 927 N.W.2d at 294.
Accordingly, like in Hallmark, because the district court made some findings related to the
first step of the rule 807 analysis, we conclude that we may conduct an independent review
of the record to determine whether there was an abuse of discretion in admitting the
recorded statement, even though the district court did not explicitly address the enumerated
requirements under rule 807. See id. And, as a result, we deny the state’s motion to strike
as moot.
9
“to try and help himself out.” After the sergeant’s testimony, the district court admitted the
audio recording of K.R.’s statement as substantive evidence under rule 807. The recording
was then played for the jury.
A. Circumstantial Guarantees of Trustworthiness
When determining whether a statement has circumstantial guarantees of
trustworthiness, courts generally consider four factors, known as the Ortlepp factors. Id. at
292-93. These factors are (1) whether there is a Confrontation Clause issue, (2) whether
“the statement is recorded, removing any real dispute about what the declarant said,”
(3) whether “the statement is against the declarant’s penal interest,” and (4) whether the
statement is consistent with other evidence “ pointing strongly toward” guilt. Id. at 293;
State v. Ortlepp, 363 N.W.2d 39, 44 (Minn. 1985). Since deciding Ortlepp, the supreme
court has noted additional relevant factors, including whether the statement was made
voluntarily; whether it was made under oath and subject to cross-examination; the
declarant’s motivation for making the statement, relationship to the parties in the litigation,
and personal knowledge of the statement; whether the declarant recanted; whether there is
corroborating evidence; and the declarant’s reputation for honesty. State v. Vangrevenhof,
941 N.W.2d 730, 736 (Minn. 2020) (explaining that the Ortlepp factors are nonexclusive
and are merely meant to represent the totality of the circumstances).
In considering whether to admit K.R.’s statement, the district court noted the
following circumstances: defense counsel had cross-examined K.R., who answered
defense counsel’s questions, and, as a result, there was no issue under the Confrontation
Clause; K.R. had previously provided truthful information to Sergeant Schroeder; K.R. had
10
recanted his statement, stating at trial that police forced him to make it; and K.R. had a
self-interest in providing useful information because he was in jail and facing charges.
Weighing these circumstances, the district court “[found] that the circumstances [were]
sufficiently reliable to allow admission.”
Brown argues that the district court incorrectly weighed the relevant circumstances
and that it should have found that K.R.’s statement lacked sufficient guarantees of
trustworthiness because K.R.’s statement was not sworn, the statement was made under
duress, K.R. had a reason to lie, and K.R. testified at trial that the conversation between
him and Brown never happened. The argument is unavailing.
With the exception of K.R.’s statement not being sworn, the district court explicitly
took into account the circumstances cited by Brown. It weighed those circumstances
against other factors indicating reliability and determined that the statement was
sufficiently reliable. The fact that the statement was not sworn does not invalidate the
district court’s determination of reliability. Additionally, K.R.’s statement was recorded,
preventing any argument about what K.R. told the officer, and K.R.’s statement that Brown
confessed that Brown shot Q.Y. when Q.Y. was “snoozing” outside of a party is consistent
with eyewitness accounts that Q.Y. was shot while he was bending down to tie his shoes
outside of a party. See Ortlepp, 363 N.W.2d at 44.
Accordingly, while some factors weigh against admitting K.R.’s statement, we
conclude that the district court did not abuse its discretion by determining that the first step
of rule 807 was satisfied. See id.; Vangrevenhof, 941 N.W.2d at 736.
11
B. Enumerated Requirements Under Rule 807
Next, Brown argues that two of the enumerated requirements under rule 807 were
not met.3 Although the district court did not address these requirements before admitting
the statement, the record supports that these requirements were met.
Brown argues that the second enumerated requirement under rule 807—that “the
statement is more probative on the point for which it is offered than any other evidence
which the proponent can procure through reasonable efforts”— was not met because K.R.’s
statement “was not more probative than other evidence, namely, [K.R.’s] in-person
courtroom testimony.” To satisfy the second requirement under rule 807, courts should
“consider whether other admissible evidence on the same point could be obtained through
reasonable efforts.” Hallmark, 927 N.W.2d at 294.
During the trial, K.R. was asked leading questions by both the prosecutor and
defense counsel; he provided contradictory answers about what he said when he talked to
police; and he never described what he told Sergeant Schroeder about Brown in July 2023,
despite being given multiple opportunities to do so. For example, some of K.R.’s responses
regarding his statement to Sergeant Schroeder were as follows:
Q: You told [Sergeant Schroeder] that you had a statement or
you talked about [Brown] on the way to the infirmary or the
medical center in the jail, correct?
A: No.
Q: You didn’t tell him that?

3 Brown concedes that the first enumerated requirement under rule 807 was satisfied
because K.R.’s statement was offered to establish that Brown confessed to killing Q.Y.,
which is a material fact. See Minn. E. Evid. 807.
12
A: No.
. . . .
Q: Did the conversation [with Sergeant Schroeder in July]
happen?
A: I don’t remember.
. . . .
Q: So you told Sergeant Schroeder that you [and Brown] had
gone down to the medical unit . . . ; is that correct?
A: Yes.
. . . .
Q: So when you told Sergeant Schro eder that [Brown] told
you that he shot [Q.Y.], that never happened?
A: I was forced. He told me what —what supposedly
happened.
Due to the contradictory nature of K.R.’s testimony, the most probative way to
address what K.R. told Sergeant Schroeder about Brown, including what K.R. stated that
Brown confessed to, was through the recorded statement. For these reasons, the recorded
statement was more probative on the point for which it was offered— namely, what Brown
allegedly confessed to—than any other evidence that could have been procured and, as a
result, it satisfied the second requirement under rule 807. Whether K.R. truthfully made
that statement or was forced to do so was a separate question for the jury. Compare Minn.
R. Evid. 104(a) (stating that “[p]reliminary questions concerning . . . the admissibility of
evidence shall be determined by the court”), with State v. Blanche, 696 N.W.2d 351, 374
(Minn. 2005) (“Witness credibility determinations are strictly the domain of the jury.”).
Brown also argues that the third enumerated requirement under r ule 807—that
admission would serve “the general purposes of [the Minnesota Rules of Evidence] and
the interests of justice ”—was not met because the state presented other evidence of the
13
crime, and, therefore, admission of the recorded statement was unnecessary, cumulative
evidence. Minn. R. Evid. 807. The purpose of the third requirement of rule 807 is “to
promote the growth and development of the law of evidence to the end that the truth may
be ascertained and proceedings justly determined.” See Hallmark, 927 N.W.2d at 294
(quotation omitted).
Even though the state had produced other evidence of the crime, including the
testimony of two eyewitnesses, evidence of a confession by Brown and of Brown’s
motivation for the crime remained relevant evidence that could have helped the jury
ascertain the truth about who committed the murder and whether it was committed for the
benefit of a gang. Therefore, we conclude that admission of the recorded statement served
the purposes of the evidentiary rules and the interests of justice and satisfied the third
enumerated requirement.
In sum, the district court did not abuse its discretion by admitting K.R.’s recorded
statement.
II. The district court did not abuse its discretion by admitting certain gang-related
expert testimony and photos.
Brown argues that the district court abused its discretion by admitting, over his
objection, gang-related evidence—namely, expert testimony from Sergeant Schroeder
about north Minneapolis gangs and photos suggesting that K.R. and Brown were associated
with gangs—because the evidence was unhelpful to the jury, duplicative, and more
prejudicial than probative. We address each piece of evidence in turn.
14
A. Expert Testimony
An expert may testify “in the form of an opinion” if the expert ’s “scientific,
technical, or other specialized knowledge will assist the trier of fact to understand the
evidence or to determine a fact in issue.” Minn. R. Evid. 702. Generally, expert testimony
about gangs is admissible when a defendant is charged with committing an offense for the
benefit of a gang and the expert testimony will add “precision or depth to the jury’s ability
to reach conclusions about matters that are not within its experienc e.” State v. Thao, 875
N.W.2d 834, 840 -41 (Minn. 2016) (quotation omitted). “The ultimate question of
admissibility under Rule 702 is whether the expert’s testimony will help the jury evaluate
the evidence or resolve factual issues.” Id. at 841 (quotation omitted). Even relevant
evidence “may be excluded if its probative value is substantially outweighed by the danger
of unfair prejudice . . . or needless presentation of cumulative evidence.” Minn. R. Evid.
403. Appellate courts “review evidentiary rulings, including those related to the
admissibility of expert testimony, for an abuse of discretion.” Thao, 875 N.W.2d at 840.
Brown was charged with second-degree murder for the benefit of a gang in violation
of Minnesota Statutes section 609.19, subdivision 1(1), with reference to Minnesota
Statutes section 609.229. To be sentenced for a crime under section 609.229, subdivision
3(a), the defendant must have “commit[ted] a crime for the benefit of, at the direction of,
in association with, or motivated by involvement with a criminal gang, with the intent to
promote, further, or assist in criminal conduct by gang members.” Minn. Stat. § 609.229,
subd. 2. A “criminal gang,” for the purposes of this section, is defined as follows:
15
[A]ny ongoing organization, association, or group of three or
more persons . . . that:
(1) has, as one of its primary activities, the commission
of one or more of the offenses listed in section 609.11,
subdivision 9;
(2) has a common name or common identifying sign or
symbol; and
(3) includes members who individually or collectively
engage in or have engaged in a pattern of criminal activity.
Id., subd. 1.
Brown argues that Sergeant Schroeder’s gang-related testimony was inadmissible
because it was too general, duplicative, and prejudicial. We disagree.
First, the fact that testimony is general in nature does not necessarily make it
inadmissible so long as it is helpful to the jury. In State v. Jackson , the supreme court
determined that expert testimony about general aspects of gang culture, such as the role of
respect, was admissible “[b]ecause jurors are unlikely to be familiar with gang culture” and
such testimony can be “helpful to establish the ‘for the benefit of a gang’ element and to
explain the state’s theory of motive.” 714 N.W.2d 681, 692 (Minn. 2006). Similarly, here,
Sergeant Schroeder’s testimony about the history, structure, and activities of the north
Minneapolis gangs would have assisted the jury in resolving whether the groups fell within
the statutory definition of “criminal gang.” See Minn. Stat. § 609.229, subd. 1. And his
testimony about territorial boundaries and culture, including the importance of reputation,
would have helped jurors to evaluate whether the offense was motivated by involvement
with a criminal gang. See id., subd. 2.
Second, although other witnesses discussed gang culture during their testimony,
Sergeant Schroeder’s testimony was not cumulative. Sergeant Schroeder’s testimony
16
provided a comprehensive overview about the history, structure, activities, and culture of
the gangs in north Minneapolis, much of which was not fully covered by other witnesses’
testimony. And, for the same reasons discussed above, such a comprehensive overview
would have been helpful to the jury. See Jackson, 714 N.W.2d at 692.
Finally, Sergeant Schroeder’s testimony was more probative than prejudicial. The
supreme court has acknowledged that “[m]ost evidence introduced to prove the ‘for the
benefit of a gang’ element is likely to be improperly prejudicial to some degree by
suggesting guilt based on gang membership alone.” Id. But all such evidence can not be
prohibited without “rendering convictions under [section 609.229] nearly impossible to
obtain.” Id. In Jackson, the supreme court determined that, “while [the sheriff’s] testimony
about gang culture and the Bloods gang may h ave posed some risk of prejudice, it did not
require exclusion under Minn. R. Evid. 403 because it had significant probative value.” Id.
Similarly, here, Sergeant Schroeder’s expert testimony about the history and culture of the
gangs was highly probative regarding whether the groups at issue should be considered
“criminal gangs” under section 609.229 and whether Brown’s alleged acts were for the
benefit of a criminal gang. Therefore, to the extent that the testimony may have been
prejudicial, that prejudice was outweighed by its probative value. Accordingly, the district
court did not abuse its discretion by permitting Sergeant Schroeder ’s expert testimony
about gangs in north Minneapolis.
B. Photos
Brown also argues that the photos of K.R. and Brown that were admitted during
Sergeant Schroeder’s testimony to show that both men were affiliated with gangs were
17
“redundant, cumulative, misleading, confusing, and with an unknown timeframe.” Brown
asserts that the district court abused its discretion by admitting the photos because they
were more prejudicial than probative. See Minn. R. Evid. 403. Again, we review the district
court’s evidentiary rulings for an abuse of discretion. Ali, 855 N.W.2d at 249.
The district court admitted five photos of K.R. One photo shows K.R. alone while
the other four show him with other men. In all the photos, at least one person is making a
sign with their hands. Sergeant Schroeder testified about who was in the photos, that most
of the individuals pictured were associated with the Lows, and about what the various hand
signs meant. Because K.R. recanted his testimony, having five images showing that K.R.
had some affiliation with the Lows, which is the same gang that Brown was associated
with, would have been helpful for the jury in determining how to assess K.R.’s credibility,
particularly in light of K.R.’s testimony that he did not know Brown and only said that he
did because he was “forced” to by police. And, while Sergeant Schroeder testified that K.R.
was a member of the Lows, the photos would have helped bolster the credibility of
Schroeder’s testimony and, given the relatively small number of photos, were not
cumulative.
The district court also admitted 14 photos and one video without audio that either
show Brown or were posted on Brown’s social media. All show gang-related hand signs
or tattoos. Although other witnesses had testified that Brown was associated with gangs,
the photos and video would have helped support the credibility of those witnesses’
testimony by providing evidence showing Brown associating with gangs. Further, the
photos of K.R. and the photos and video of Brown helped to demonstrate that the gangs
18
that both men associated with, including the Lows, had a “common identifying sign or
symbol”— namely, a common hand signal— which is an element of the statutory definition
of “criminal gang.” Minn. Stat. § 609.229, subd. 1(2).
Therefore, we conclude that the district court did not abuse its discretion by
admitting the photos because the evidence was not needlessly cumulative, and its probative
value was not outweighed by the danger of unfair prejudice. See Minn. R. Evid. 403;
Jackson, 714 N.W.2d at 692.
III. The prosecutor did not commit plain misconduct.
“A prosecutor engages in prosecutorial misconduct when he violates clear or
established standards of conduct, e.g., rules, laws, orders by a district court, or clear
commands in this state’s case law.” State v. McCray, 753 N.W.2d 746, 751 (Minn. 2008)
(quotation omitted). When, as here, the defendant fails to object during trial, prosecutorial
misconduct is reviewed under a modified plain-error standard. See State v. Ramey, 721
N.W.2d 294, 302 (Minn. 2006); State v. Matthews, 779 N.W.2d 543, 551 (Minn. 2010)
(referring to the standard outlined in Ramey as “the modified plain-error test”). Under this
standard, the defendant bears the burden of establishing error that is plain. Ramey, 721
N.W.2d at 302. An error is plain if it “contravenes case law, a rule, or a standard of
conduct.” Id. If the defendant meets their burden, the burden shifts to the state “to show
that there is no reasonable likelihood that the absence of the misconduct in question would
have had a significant effect on the verdict.” Id. (quotation omitted). “If the state fails to
demonstrate that substantial rights were not affected, the appellate court then assesses
19
whether it should address the error to ensure fairness and the integrity of the judicial
proceedings.” State v. Davis, 735 N.W.2d 674, 682 (Minn. 2007) (quotation omitted).
Brown argues that the prosecutor committed reversible plain prosecutorial
misconduct by eliciting hearsay, appealing to racial stereotypes, injecting a personal
opinion into the case to endorse the credibility of a witness, and making improper
arguments in the opening statement. We address each argument in turn.
A. Eliciting Hearsay from a Witness
First, Brown contends that the prosecutor plainly erred by eliciting hearsay from
Sergeant Schroeder about what K.R. said in his recorded statement before the statement
was admitted.
Absent an exception, hearsay is generally not admissible in a criminal trial. Minn.
R. Evid. 802. And “[i]t is generally misconduct for a prosecutor to knowingly offer
inadmissible evidence for the purpose of bringing it to the jury’s attention.” State v. Mosley,
853 N.W.2d 789, 801 (Minn. 2014) (quotation omitted).
Before Sergeant Schroeder testified, the district court stated, “As to the hearsay rule,
I am applying . . . Ortlepp and if I believe that the statement was taken under sufficiently
reliable circumstances under 807, I will allow it in.” The parties then agreed that Sergeant
Schroeder would testify about the circumstances under which K.R.’s statement was taken
for the purposes of determining whether the recorded statement would be admissible under
rule 807 and agreed that the jury could be in the courtroom for that testimony. During the
subsequent direct examination of Sergeant Schroeder, but before the district court admitted
20
K.R.’s recorded statement, the prosecutor elicited the following statements from Sergeant
Schroeder:
Q: What types of things were discussed in the conversation on
July 17, 2023?
A: I met with [K.R.]. He told me he had information which,
from my memory, he told me what —murder of [Q.Y.]. And I
knew that— or from my memory, he was in jail at the time, so
I was a little bit curious how he could have information about
it. He proceeded to tell me that him and [Brown]—he used the
term—his nickname DeBo—met at the medical cart or medical
office and that they were actually in adjoining cellblocks.
. . . .
Q: When they went to this medical location together, what did
[K.R.] say happened?
A: The CliffsNotes version is he said that [Brown]—well, that
[Brown] confessed to him.
Q: And when he confessed to him, is that in the homicide of
[Q.Y.]?
A: Correct.
Q: Did [K.R.] give you detailed information that allowed you
to understand he knew the exact homicide and exact facts that
were presented in this homicide?
A: Yes.
Q: Do you recall what those facts were?
A: He said that [Brown] admitted catching, I believe he used
the word “op” outside, which [Q.Y.] was killed outside. And
caught him—[K.R.] used the term “lacking,” and I asked for
clarification. I said, “what does that mean?” And he said, “you
know, he caught him, like, snoozing, asleep, not paying
attention.” And that was exactly the facts of the homicide from
our investigation.
While the prosecutor’s questions elicited testimony from Sergeant Schroeder about
what K.R. said on the recording before the recording was admitted, the prosecutor’s
questions about K.R.’s statements addressed the requirements of rule 807, which the
21
district court needed to evaluate to decide whether to admit the statement. The questions
about the “types of things” discussed between Sergeant Schroeder and K.R. and whether
K.R.’s statement included him stating that Brown had confessed to K.R. that Brown shot
Q.Y. both address the point for which the state wanted to offer the statement—to show that
Brown confessed to shooting Q.Y. See Minn. R. Evid. 807 (requiring that “the statement
is more probative on the point for which it is offered than any other evidence which the
proponent can procure through reasonable efforts”). And the questions asking about the
facts that allowed Sergeant Schroeder to know that K.R. was talking about this “exact
homicide” address whether K.R.’s statement in the recording was consistent with other
eyewitnesses’ testimony. See Ortlepp, 363 N.W.2d at 44 (considering, as part of the rule
807 analysis, whether the statement at issue was consistent with other evidence pointing
toward guilt). Although the relevant factors for rule 807 purposes likely could have been
addressed with less detailed testimony from the sergeant about the content of K.R.’s
statement, we cannot say that the prosecutor’s questioning constituted plain error.
B. Appealing to Racial Stereotypes
Second, Brown contends that the prosecutor committed plain misconduct by
appealing to racial stereotypes and playing to the passions and prejudices of the jury during
closing argument.
4

4 Brown notes another instance of racial stereotyping that occurred during voir dire, but he
does not appear to assert that it requires reversal. The statement at issue was made by the
prosecutor during an exchange with a potential juror. It took place outside the presence of
the other potential jurors, the potential juror in question did not serve on the jury, and the
district court chastised the prosecutor for the statement. Accordingly, to the extent that
Brown argues that this statement constituted reversible misconduct, we disagree.
22
“[T]he prosecutor and the defense have considerable latitude in closing argument,
for neither is required to make a colorless argument.” State v. Smith, 541 N.W.2d 584, 589
(Minn. 1996). Even “dramatic characterizations” may be permissible “when the evidence
at trial supported those characterizations.” Matthews, 779 N.W.2d at 551 (quotation
omitted). However, parties may not inject race into their arguments when the issue is not
relevant. State v. Ray, 659 N.W.2d 736, 747 (Minn. 2003). “[R]acial considerati ons, in
particular, can affect a juror’s impartiality and must be removed from courtroom
proceedings to the fullest extent possible.” State v. Varner, 643 N.W.2d 298, 304 (Minn.
2002). In evaluating alleged misconduct during a closing argument, appellate courts
consider “the closing argument as a whole, rather than just selective phrases or remarks
that may be taken out of context or given undue prominence.” State v. Munt, 831 N.W.2d
569, 587 (Minn. 2013) (quotation omitted).
Brown asserts that the prosecutor committed plain error when they started their
closing argument by stating: “In the State of Minnesota, we enjoy hunting. But the only
location—the City of Minneapolis—where hunting for sport is of human beings. You’ve
heard, through the testimony throughout this trial—killing for sport in North Minneapolis
is for a score.” Brown argues that this statement implied that the jury should fear north
Minneapolis, and because north Minneapolis has a large Black population, the prosecutor
was inserting racial bias into their argument.
We note that the prosecutor did not mention race in their statement and Brown does
not point to any evidence presented at trial about the racial composition of north
Minneapolis. And, importantly, the prosecutor was apparently trying to call the jury’s
23
attention back to Sergeant Schroeder’s testimony that gang members “go hunt each other
down” when they experience disrespect from rival gangs and that gang members “keep
score or often brag about” killing members from other gangs. Accordingly, we conclude
that the prosecutor’s closing argument, while dramatic, was not plain error because the
statement had a basis in the record and was not an appeal to racial stereotypes. See
Matthews, 779 N.W.2d at 551; see also State v. Paul, 716 N.W.2d 329, 340- 41 (Minn.
2006) (holding that it was not plain error for prosecutor to argue that murder took place in
“real world” when prosecutor did not mention race or culture and where remarks were brief
and not demeaning); Jackson, 714 N.W.2d at 695 (holding that prosecutor’s references to
“gang world” were proper where designed to introduce jurors to unfamiliar behaviors of
gang culture).
C. Injecting Personal Opinion and Endorsing a Witness’s Credibility
Third, Brown contends that the prosecutor committed plain misconduct by injecting
their personal opinion into the case and endorsing the credibility of K.N. during closing
argument.
During closing argument, a prosecutor may argue whether a witness is credible but
“must not personally endorse a witness’s credibility.” State v. Martin, 773 N.W.2d 89, 106
(Minn. 2009). Specifically, appellate courts have discouraged the use of the first-person
“I,” but they have acknowledged that the use of “I” does not always constitute prosecutorial
misconduct. See Blanche, 696 N.W.2d at 375 (cautioning against use of first-person
statements but concluding that prosecutor who prefaced 18 statements with “I suggest to
you,” “I think,” or “I submit to you” did not commit plain error). In Blanche, the supreme
24
court determined that there was not plain error where “the prosecutor’s use of [first-person]
phrases was inadvertent and rooted in the prosecutor’s rhetorical idiosyncrasies and . . . the
prosecutor’s comments were not such that a jury would view the prosecutor as taking on
the role of a witness.” Id. (quotation omitted).
Here, the prosecutor described how one of the eyewitnesses, K.N., had been hesitant
to say that Brown shot Q.Y. when making his statement to police and offered reasons why
that may have been the case, stating:
[K.N.] said, I saw the guy in the blue and the white jacket lift
up his arm and shoot the guy in front of me. And the guy in the
blue and the white jacket was [Brown]. That’s what he said.
. . . [Y]ou also heard [K.N.] describe to you that, after
this shooting, he heard who [Brown] is and what he does. Yeah.
I’d probably want to minimize too. If you’re worried about
picking out that name of that gang member —say just enough
to be helpful because of this horrible situation that you just saw
in front of you, but try and protect yourself a little.
Because what if he finds out? So maybe I’ll just tell you
what the guy was wearing, where he was standing. Said he was
right in front of me —and that that was the shooter and that—
that’s what he was wearing. Connect the dots so I don’t have
to say the name.
(Emphasis added.) Brown asserts that the italicized statements are the prosecutor’s
personal opinion and that they endorsed K.N.’s credibility “by telling the jurors that [the
prosecutor] would act in the same way and say the same things that the witness did.” We
are not persuaded.
While an advocate’s use of “I” should be avoided during closing argument, here,
the prosecutor was not expressing their approval of K.N.’s actions; rather, they were trying
to describe what K.N. might have been thinking when he gave his statement to police and
25
why that may have led him to act the way that he did. The state argues that this was
“inadvertent, rhetorical phrasing” based on the evidence. We agree and, as a result,
conclude that this was not plain error. See id.
D. Making Improper Arguments in Opening Statement
Fourth, Brown contends that the prosecutor committed misconduct by improperly
arguing during opening statement.
This court has stated that “[a]n opening statement may not contain argument but
rather must be confined to a description or outline of the facts a party expects to prove.”
State v. Montgomery, 707 N.W.2d 392, 399 (Minn. App. 2005). The prosecutor’s opening
statement should be
a recital of factual claims expressed with an intention and
expectation that testimony will be offered and received to
support them. If the facts are stated in good faith with
reasonable grounds to believe that the evidence to be offered
in proof of such facts is admissible, no error is committed.
Tucker v. State , 245 N.W.2d 199, 202 (Minn. 1976) (emphasis omitted) (quotation
omitted).
Here, during the opening statement, the prosecutor stated:
You’re not going to see a murder weapon because people don’t
hold onto guns that they use to kill people. . . .
On top of that, what you’ll see is [t hat] cell phone records
show that just minutes after executing [Q.Y.] in the front yard
of that party, this defendant cut off his phone, we would argue,
to prevent further detection of his movements from that point
on.
26
(Emphasis added.) Brown asserts that both italicized remarks are improper because they
were “not limited to a description or outline of the facts the state expected to prove at trial”
and were not intended to help the jury track the trial testimony. We are not persuaded.
The first statement that “people don’t hold onto guns that they use to kill people,”
is information that the prosecutor could have reasonably expected one of the witnesses to
testify about—for example, Sergeant Schroeder could have discussed what he has
commonly seen during his years of experience in law enforcement. As to the second
statement, the prosecutor prefaced the idea about the phone being shut off to prevent further
detection by stating that it was something that the state “would argue.” It is apparent that
the prosecutor was previewing an argument that the state planned to make in closing
argument based on cell-phone evidence that would be presented showing that a phone, with
a number commonly used by Brown, was in the immediate area of the homicide when it
occurred and that, shortly thereafter, the phone was either turned off or put in airplane
mode, making it untraceable. In context, we conclude that neither statement was plain error.
See id.
Because we conclude that the prosecutor did not commit plain error, we do not
address the remaining elements of the modified plain-error standard. See Ramey, 721
N.W.2d at 302.
IV. The cumulative effect of the alleged errors does not warrant a new trial.
Brown argues that, even if each error by itself was harmless, the cumulative effect
of the errors deprived Brown of a fair trial. “An appellant may be entitled to a new trial in
rare cases where the errors, when taken cumulatively, have the effect of denying the
27
appellant a fair trial.” State v. Fraga, 898 N.W.2d 263, 278 (Minn. 2017) (quotation
omitted). Because we determine that the district court did not err by admitting K.R.’s prior
recorded statement or the gang-related expert testimony and photos and the prosecutor’s
conduct was not plainly erroneous, there were no errors that collectively resulted in an
unfair trial.
Affirmed; motion denied.