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This opinion is nonprecedential except as provided by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
A25-0055

State of Minnesota,
Respondent,

vs.

Edward Alexander Cox,
Appellant.

Filed January 26, 2026
Affirmed
Larson, Judge

Wadena County District Court
File No. 80-CR-24-342

Keith Ellison, Attorney General, Timothy C. Rank, Assistant Attorney General, St. Paul,
Minnesota; and

Kyra L. Ladd, Wadena County Attorney, Wadena, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Davi E. Axelson, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Reyes, Presiding Judge; Larkin, Judge; and Larson, Judge.
NONPRECEDENTIAL OPINION
LARSON, Judge
Appellant Edward Alexander Cox was convicted on one count of felon in possession
of ammunition and on one count of second-degree assault with a dangerous weapon. Cox
raises two arguments in this direct appeal. First, he argues the state produced insufficient
evidence to prove beyond a reasonable doubt that he possessed ammunition. Second, he
2
argues his convictions must be reversed because the prosecutor engaged in multiple
instances of prosecutorial misconduct. We affirm.
FACTS
The following factual summary is based on the evidence received at Cox’s jury trial.
On May 22, 2024, Cox was living in a bedroom located in the southwest corner of a house
(the southwest bedroom) owned by K.B. (homeowner). That morning, C.R. (victim)
arrived at the house to pick up homeowner. Victim knocked on the door, and Cox
answered. At the time, Cox and his girlfriend (girlfriend) had been living in the southwest
bedroom for approximately eight months.
When victim entered the house, he noticed that homeowner’s dogs were whining.
Victim, who was familiar with the dogs, believed they needed to relieve themselves, so he
let the dogs out of their kennel and followed them outside. While outside with the dogs,
Cox confronted victim because he was upset that victim let the dogs out. Cox became
aggressive and began yelling at victim, telling him that he was no longer welcome at the
house.
Victim tried to get back into the house to retrieve homeowner, but Cox stopped
victim from entering. Victim yelled for homeowner. Cox and victim came chest-to-chest
with one another. Victim shoved Cox, and Cox pushed back . The two men then entered
the house, and Cox grabbed a hammer. Cox and victim were about fifteen to twenty feet
away from one another when Cox began swinging the hammer at victim.
After several swings, Cox put down the hammer down, walked to his bedroom, and
grabbed a machete. When Cox returned, he swung the machete at victim several times,
3
coming within a foot of victim. Victim testified that he believed Cox was trying to kill
him. Homeowner entered the room and yelled at Cox to stop. Cox eventually stopped
swinging the machete and returned to the southwest bedroom.
Victim informed homeowner that he planned to report the incident to the police.
Later that day , victim met with Wadena County Sheriff’s Deputies and provided a
statement. The deputies went to the house to execute a search warrant and arrest Cox. At
the house, a deputy spoke to Cox through an open window and presented the signed search
warrant. Before leaving the house, Cox returned to the southwest bedroom to put on pants.
Cox then exited the house and was arrested.
The deputies searched the house. They located a hammer in the kitchen. In the
southwest bedroom, they located mail addressed to Cox that listed the house as Cox’s home
address, along with men’s clothing and items belonging to girlfriend. They also located a
machete behind a dresser in the southwest bedroom.
During their search, the deputies saw a box of ammunition sitting “in the open” atop
a mini-fridge in the southwest bedroom. They also found a clear plastic bag on the floor
of the southwest bedroom containing a prescription bottle with the name of one of
homeowner’s children. One of homeowner’s children, and possibly one of girlfriend’s
children, had previously occupied the southwest bedroom.
The state filed an amended complaint charging Cox with five counts: (1) felon in
possession of ammunition under Minn. Stat. § 624.713, subd. 1(2) (2022); (2) second-
degree assault (fear) with a dangerous weapon under Minn. Stat. § 609.222, subd. 1 (2022),
related to the hammer incident; (3) second-degree assault (harm) with a dangerous weapon
4
under Minn. Stat. § 609.222, subd. 1, related to the hammer incident; (4) second-degree
assault (fear) with a dangerous weapon under Minn. Stat. § 609.222, subd. 1, related to the
machete incident; and (5) second-degree assault (harm) with a dangerous weapon under
Minn. Stat. § 609.222, subd. 1, related to the machete incident. Cox moved to have the
charges dismissed, which the district court denied. The matter proceeded to a two-day jury
trial.
At trial, victim, homeowner, girlfriend, and four responding deputies testified on
behalf of the state consistent with the above facts. As relevant to possession of the
ammunition, girlfriend testified that she and Cox kept their clothes and possessions in the
southwest bedroom. Girlfriend stated that she had seen the ammunition on the mini-fridge.
Girlfriend denied that the ammunition belonged to her and stated that she believed it
belonged to Cox. Girlfriend also testified that Cox told her that he owned a gun.
Homeowner also denied that the ammunition belonged to him.
Cox invoked his right not to testify. At the close of evidence, Cox moved for
acquittal on the felon-in -possession-of-ammunition charge. The district court denied his
motion. The jury acquitted Cox on the second-degree assault (harm) with a dangerous
weapon count related to the hammer incident and returned guilty verdicts on the remaining
four counts. The district court then entered convictions on and sentenced Cox to a 60-
month prison term for the felon-in-possession-of-ammunition count and a 39-month prison
term for one count of second-degree assault, to be served concurrently. The district court
did not adjudicate the other two counts. See Minn. Stat. § 609.04 (2024).
Cox appeals.
5
DECISION
Cox raises two arguments in this direct appeal. First, he argues the state presented
insufficient evidence to prove that he possessed the ammunition found in the southwest
bedroom. Second, he asserts the prosecutor engaged in prosecutorial misconduct that
warrants a new trial. We address each argument in turn.
I.
Cox first argues the state presented insufficient evidence to prove that he possessed
the ammunition found in the southwest bedroom. When evaluating the sufficiency of the
evidence, we review the evidence presented at trial “to determine whether the facts in the
record and the legitimate inferences drawn from them would permit the jury to reasonably
conclude that the defendant was guilty beyond a reasonable doubt of the offense of which
he was convicted.” State v. Al-Naseer, 788 N.W.2d 469, 473 (Minn. 2010) (quotation
omitted). Section 624.713, subdivision 1(2), prohibits persons “convicted of . . . a crime
of violence” from possessing ammunition. Minn. Stat. § 624.713, subd. 1(2). Cox admits
that he was prohibited from possessing ammunition on the date of the offense but argues
that the state failed to prove that he, in fact, possessed the ammunition.
The state can prove Cox’s guilt by establishing that Cox actually or constructively
possessed the ammunition. State v. Loyd, 321 N.W.2d 901, 902 (Minn. 1982). The state
proves actual possession when it presents evidence that the defendant had “direct physical
control” over the contraband. State v. Barker , 888 N.W.2d 348, 353 (Minn. App. 2016)
(quotation omitted). The state proves constructive possession in cases in which it “cannot
prove actual possession, but the inference is strong that the defendant physically possessed
6
the [contraband] at one time and did not abandon [their] possessory interest in it.” State v.
Smith, 619 N.W.2d 766, 770 (Minn. App. 2000), rev. denied (Minn. Jan. 16, 2001). The
state can prove constructive possession when either (1) the contraband was found “in a
place under [the] defendant’s exclusive control to which other people did not normally
have access,” or (2) if the contraband was found “in a place to which others had access,
there is a strong probability (inferable from other evidence) that [the] defendant was at the
time consciously exercising dominion and control over it.” State v. Florine, 226 N.W.2d
609, 611 (Minn. 1975).
The parties assert, and we agree, that the state did not prove Cox had actual
possession of the ammunition. Therefore, we must determine whether the state proved
Cox had constructive possession over the ammunition. 1 The state can prove constructive
possession with either direct or circumstantial evidence. See State v. German, 929 N.W.2d
466, 472 (Minn. App. 2019). 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 factfinder can infer whether the facts in dispute existed or did
not exist.” Id. (quotation omitted).

1 Cox argues the state failed to prove constructive possession “because [the state] did not
prove that he ever actually possessed the contraband.” Cox effectively argues the state
needed to establish prior actual possession to prove constructive possession. Cox’s
argument is inconsistent with the legal concept of constructive possession, which requires
a “strong” inference “that the defendant physically possessed the [contraband] at one time
and did not abandon [their] possessory interest in it.” See Smith, 619 N.W.2d at 770.
7
Here, the parties assert, and we agree, that the state used circumstantial evidence to
prove constructive possession. When the state relies on circumstantial evidence, we apply
a heightened two-step standard. State v. Ortega, 813 N.W.2d 86, 100 (Minn. 2012). First,
we “identify the circumstances proved.” State v. Silvernail, 831 N.W.2d 594, 598 (Minn.
2013). The circumstances proved are “a subset of facts” identified “by resolving all
questions of fact in favor of the jury’s verdict.” Harris, 895 N.W.2d at 600. “[W]e defer
to the [factfinder’s] acceptance of the proof of these circumstances” and “assume that the
[factfinder] believed the State’s witnesses and disbelieved the defense witnesses.”
Silvernail, 831 N.W.2d at 598-99 (quotations omitted). Second, we determine whether the
circumstances proved, in their entirety, “are consistent with guilt and inconsistent with any
rational hypothesis except that of guilt,” and “not simply whether the inferences that point
to guilt are reasonable.” Id. at 599 (quotations omitted). During this step, we do not defer
“to the fact finder’s choice between reasonable inferences.” State v. Andersen, 784 N.W.2d
320, 329-30 (Minn. 2010) (quotation omitted). The circumstantial evidence the state
presents “must form a complete chain that, in view of the evidence as a whole, leads so
directly to the guilt of the defendant as to exclude beyond a reasonable doubt any
reasonable inference other than guilt.” Al-Naseer, 788 N.W.2d at 473 (quotation omitted).
Beginning with the first step, the state proved the following circumstances at trial:
(1) on the day the deputies executed the search warrant, Cox and girlfriend had lived in the
southwest bedroom of the house for approximately eight months; (2) before the deputies
executed the search warrant, Cox went to the southwest bedroom to put on his pants;
(3) when the deputies searched the southwest bedroom they found Cox’s personal items,
8
including Cox’s clothing and Cox’s mail addressed to him at the house; (4) the deputies
also found ammunition in the southwest bedroom, plainly visible sitting atop a mini-fridge;
(5) girlfriend believed the ammunition belonged to Cox; (6) the ammunition did not belong
to homeowner or girlfriend; and (7) Cox told girlfriend he owned a gun.
Moving to the second step, Cox first argues the circumstances proved are
inconsistent with guilt because the state failed to prove he exercised dominion and control
over the ammunition. On this argument, our decision in State v. Dickey is instructive.
827 N.W.2d 792 (Minn. App. 2013). There, we listed several facts that have previously
been deemed sufficient to prove constructive possession beyond a reasonable doubt,
including locating the contraband: (1) near papers and personal documents containing the
defendant’s name; (2) near the defendant’s clothing or personal property; or (3) in a room
used as the defendant’s bedroom. Id. at 797. All the facts discussed in Dickey are present
in this case. The ammunition was found near mail addressed to the house with Cox’s name
on it and Cox’s clothing, and in a room that Cox had used for his bedroom for
approximately eight months. Therefore, we conclude that the circumstances proved are
consistent with guilt.2
Cox argues in the alternative that, even if the facts are consistent with guilt, they
nonetheless support a reasonable inference other than guilt. Specifically, Cox contends the
evidence that children had previously occupied the southwest bedroom supports a

2 We further note that, even if the jury did not believe girlfriend’s testimony that she did
not possess the ammunition, the jury still could have found Cox jointly possessed the
ammunition with girlfriend. See Smith, 619 N.W.2d at 770 (“[C]onstructive possession
need not be exclusive, but may be shared.”).
9
reasonable inference other than guilt— namely, that the children had exclusive possession
of the ammunition. To support his argument, Cox relies on Harris and State v. Sanchez,
No. A20-0136, 2021 WL 318463 (Minn. App. Feb. 1, 2021).3 But both cases are readily
distinguishable. In Harris, law enforcement found hidden contraband in a vehicle the
defendant did not own. 895 N.W.2d at 602. And in Sanchez, the contraband was found in
a common area of a trailer home where the prior owner had left “pretty much everything
[he] owned.” 2021 WL 318463, at *1, 3. Here, the circumstances proved demonstrate that
Cox and girlfriend had been in possession of the southwest bedroom for eight months and
the ammunition was plainly visible in the southwest bedroom. 4 Accordingly, the
circumstances proved support only one reasonable inference —that Cox constructively
possessed the ammunition.
Because the state proved Cox constructively possessed the ammunition, we affirm
his felon-in-possession-of-ammunition conviction on sufficiency grounds.
II.
Cox argues second that he is entitled to a new trial because the prosecutor engaged
in six instances of prosecutorial misconduct: (1) eliciting improper opinion testimony
about his possession of ammunition (opinion testimony (possession)); (2) playing body-
camera footage referencing Cox’s prior jail time and probation status (jail-time and
probation evidence); (3) eliciting improper testimony about Cox’s “bad temper” (bad-

3 This opinion is nonprecedential and, therefore, not binding. We cite n onprecedential
opinions as persuasive authority only. See Minn. R. Civ. App. P. 136.01, subd. 1(c).
4 We further note that this case is substantially similar to our persuasive, nonprecedential
decision in State v. Lopez, No. A22-1211, 2023 WL 4861790 (Minn. App. July 31, 2023).
10
temper evidence); (4) eliciting improper vouching testimony (vouching testimony);
(5) eliciting improper opinion testimony tracking the elements of second-degree assault
(opinion testimony (elements)); and (6) improperly shifting the burden of proof during
closing argument (burden of proof).
The standard we apply when reviewing claims of prosecutorial misconduct depends
on whether the defendant objected at trial. State v. Wren, 738 N.W.2d 378, 389-90 (Minn.
2007). We first review the two alleged instances of objected-to prosecutorial misconduct
regarding the opinion testimony (possession), and jail-time and probation evidence. Then
we review the four instances of alleged unobjected-to prosecutorial misconduct regarding
the bad-temper evidence, vouching testimony, opinion testimony (elements), and burden
of proof. Finally, we address Cox’s argument that the cumulative instances of alleged
prosecutorial misconduct warrant a new trial.
A. Objected-To Prosecutorial Misconduct
We first address Cox’s arguments regarding the opinion testimony (possession), and
the jail-time and probation evidence.5 When reviewing objected -to prosecutorial
misconduct, we apply a harmless-error test, the application of which varies based on the
severity of the misconduct. State v. Carridine, 812 N.W.2d 130, 150 (Minn. 2012). “In
cases involving unusually serious prosecutorial misconduct, we require certainty beyond a

5 Cox objected to admission of the opinion testimony (possession) , and the jail-time and
probation evidence pursuant to a motion in limine which the district court granted, and,
therefore, he preserved these objected-to claims on appeal. See State v. Litzau, 650 N.W.2d
177, 183 (Minn. 2002 ) (“[A] party need not renew an objection to the admission of
evidence to preserve a claim of error for appeal following a ruling on a motion in limine.”).
11
reasonable doubt that the misconduct was harmless before we affirm.” Id. “On the other
hand, in cases involving less serious prosecutorial misconduct, we apply the test of whether
the misconduct likely played a substantial part in influencing the jury to convict.” Id.
Cox contends that the alleged objected-to prosecutorial misconduct in this case was
serious, warranting the more stringent harmless-error test. The state does not take a clear
position on which harmless-error standard applies. We need not resolve this question
because we conclude that Cox cannot establish that he is entitled to relief under the more
demanding test that applies to objected-to and unusually serious misconduct.
Under the more stringent harmless-error test, “[p]rosecutorial misconduct is
harmless beyond a reasonable doubt if the jury’s verdict was surely unattributable to the
misconduct.” State v. Whitson, 876 N.W.2d 297, 304 (Minn. 2016) (quotation omitted).
In State v. Bigbear, the supreme court clarified that when evaluating harmlessness, “the
question is not whether the [other] evidence was sufficient to support the conviction, but
rather whether the error substantially influenced the verdict.” 10 N.W.3d 48, 54 (Minn.
2024) (quotation omitted). The supreme court provided a list of “non-exclusive” factors
to assist in determining whether a “reasonable possibility exists that the erroneously
admitted evidence significantly affected the jury’s verdict,” including: “(1) the manner in
which the party presented the evidence, (2) whether the evidence was highly persuasive,
(3) whether the party who offered the evidence used it in closing argument, and (4) whether
the defense effectively countered the evidence.” Id. (quotation omitted). We may also
consider the strength of the state’s evidence. Id. (“Strong evidence of guilt undermines the
persuasive value of wrongly admitted evidence.” (quotation omitted)).
12
1. Opinion Testimony (Possession)
Cox asserts the prosecutor committed misconduct when they introduced a deputy’s
opinion testimony that Cox possessed the ammunition. Specifically, Cox challenges the
following exchange:
PROSECUTOR: And why do you believe that Mr. Cox
possessed this ammunition?

DEPUTY: It was – it was very much in plain view
when we entered the room. And based on
the information that we believe Mr. Cox
was staying there; it was well within his
bedroom and possession.

A prosecutor engages in misconduct when they introduce evidence the district court
previously ruled inadmissible. See State v. Ray, 659 N.W.2d 736, 744-46 (Minn. 2003).
Here, the district court granted Cox’s motion in limine to exclude witnesses from offering
opinion testimony as to whether Cox possessed the ammunition. Because the prosecutor’s
question elicited testimony the district court ruled was inadmissible, we conclude the
prosecutor engaged in misconduct . We, therefore, must assess whether the misconduct
was harmless beyond a reasonable doubt.
For the foregoing reasons, we conclude the verdict is “surely unattributable” to the
challenged exchange. See Bigbear, 10 N.W.3d at 54. Reviewing the record, the prosecutor
did not emphasize the testimony or the improper premise of its question, and the prosecutor
did not rely on or feature the testimony in its closing arguments. Furthermore, viewing the
question in context, the prosecutor did not present the testimony for its conclusive value.
Rather, the exchange was the first in a series of questions regarding the objects discovered
13
in the southwest bedroom. Moreover, the prosecutor relied on the testimony from multiple
witnesses and other corroborating evidence to demonstrate Cox’s guilt for the possession
offense. And, finally, the district court gave extensive jury instructions regarding the
elements of constructive possession . Therefore, we conclude that the jury’s verdict was
“surely unattributable” to the opinion testimony.
2. Jail-Time and Probation Evidence
Cox next argues the prosecutor engaged in misconduct when they admitted the jail-
time and probation evidence. See Minn. R. Evid. 404(b) (prohibiting admission of
“[e]vidence of another crime, wrong, or act . . . to prove the character of a person in order
to show action in conformity therewith”) ; see also State v. Ness, 707 N.W.2d 676, 682
(Minn. 2006) (stating evidence of other crimes, wrongs, or acts, often referred to
as Spreigl evidence). Specifically, Cox challenges the state’s admission of body-camera
footage in which Cox and a deputy discuss his probation status and prior jail time.
As explained above, a prosecutor engages in misconduct when they introduce
evidence the district court previously ruled inadmissible. See Ray, 659 N.W.2d at 744-46.
Here, the district court issued a pretrial order that prohibited the state from discussing Cox’s
prior jail time and probationary status. Thus, the prosecutor engaged in misconduct when
they introduced this portion of the body-camera footage. 6 We, therefore, must assess
whether the misconduct was harmless beyond a reasonable doubt.

6 The state argues that the prosecutor did not engage in misconduct because defense counsel
was charged with redacting the body-camera footage. We find this argument unpersuasive
because the prosecutor is responsible for the evidence they present for admission at trial.
14
For the foregoing reasons, we conclude the verdict is “surely unattributable” to the
challenged exchange. See Bigbear, 10 N.W.3d at 54. The exchange comprised less than
ten seconds of body-camera footage that was played for over an hour, and the state did not
emphasize the references in its arguments. Further, the evidence was not highly persuasive
in the context of the trial evidence as a whole, given the strong evidence that Cox was
guilty of the charged crimes. Therefore, we conclude that the jury’s verdict was “surely
unattributable” to the jail-time and probation evidence.
B. Unobjected-To Prosecutorial Misconduct
We next address Cox’s arguments regarding the alleged bad-temper evidence,
vouching testimony, opinion testimony (elements), and burden of proof. When a defendant
fails to object to alleged prosecutorial misconduct at trial, we apply a modified plain-error
test. State v. Portillo, 998 N.W.2d 242, 248 (Minn. 2023). Under this test, the defendant
must show that the prosecutor’s conduct constituted (1) an error (2) that was plain. Id. An
error is plain if it “contravenes case law, a rule, or a standard of conduct.” State v. Ramey,
721 N.W.2d 294, 302 (Minn 2006). “If the defendant is successful, the burden then shifts
to the State to demonstrate that the error did not affect the defendant’s substantial rights.”
Portillo, 998 N.W.2d at 248 (quotation omitted). Misconduct does not affect substantial
rights if “there is no reasonable likelihood that the absence of the misconduct in question
would have had a significant effect on the verdict of the jury.” Ramey, 721 N.W.2d at 302.
To determine whether a reasonable likelihood exists, “we consider the strength of the
evidence against the defendant, the pervasiveness of the improper suggestions, and whether
the defendant had an opportunity to (or made efforts to) rebut the improper suggestions.”
15
Portillo, 998 N.W.2d at 251 (quotation omitted). If the state fails to meet its burden , we
“will not grant relief to correct the error unless our failure to do so will cause the public to
seriously question the fairness and integrity of our judicial system.” Pulczinski v. State,
972 N.W.2d 347, 359 (Minn. 2022).
1. Bad-Temper Evidence
Cox argues the prosecutor committed plain-error misconduct when they elicited
testimony describing Cox as a “hothead” with a “bad temper.” Specifically, during direct
examination, the prosecutor asked homeowner and girlfriend whether Cox had a “short
fuse” or a “bad temper.” Both gave affirmative responses. Then, during closing
arguments, the prosecutor called Cox a “hothead.” And, following this statement, the
district court gave a cautionary instruction to the jury, stating that evidence of “[Cox’s]
character or his propensity for any type of character trait, is not something you should
consider, when determining if Mr. Cox did the acts that he is charged with doing today.”
Cox asserts the testimony was Spreigl evidence and required notice prior to its
admission, which the state did not provide.
7 Spreigl evidence refers to evidence of a
defendant’s prior crimes, wrongs, or bad acts. See Minn. R. Evid. 404(b); see also Ness,
707 N.W.2d at 682 (stating evidence of other crimes, wrongs, or acts, often is referred to
as Spreigl evidence). The state contends the relevant testimony is not Spreigl evidence but
is instead character evidence governed by Minn. R. Evid. 404(a).

7 The prosecutor submitted two Spreigl notices, but neither related to Cox’s “bad temper.”
16
We agree with the state that the challenged evidence is properly categorized as
character evidence—not Spreigl evidence—because the testimony did not relate to specific
incidents and, instead, conveyed Cox’s propensity for having a bad temper more generally.
See Minn. R. Evid. 404(a). Nevertheless, we conclude the prosecutor plainly committed
misconduct when they introduced this evidence, as rule 404(a) provides that character
evidence is inadmissible “for the purpose of proving action in conformity therewith on a
particular occasion.” Here, the prosecutor introduced this evidence and stated in closing
argument that Cox was a “hothead” to support the state’s theory that Cox lost his temper
during the incident—like he had in the past— making it more likely that he committed the
assaults. The introduction of the bad-temper evidence was plain error.
Having identified a plain error, the burden shifts to the state to demonstrate that this
error did not affect Cox’s substantial rights. We conclude the state met its burden here.
Cox’s assault conviction was amply supported by other record evidence and witness
accounts of the incident. And while the prosecutor referenced the testimony in their closing
argument, the district court contemporaneously paused the argument and gave a cautionary
instruction to the jury to disregard this evidence. The supreme court has previously stated
that appropriate cautionary instructions lessen the impact of improper comments. See State
v. Hawkins, 511 N.W.2d 9, 13 (Minn. 1994) (stating that the court’s instructions “lessened
the impact of the [prosecutor’s] improper comments”). Finally, “[w]here the jury has
acquitted the appellant of some counts, but convicted the appellant of others, we view the
verdicts as an indica[tion] that the members of the jury were not unduly inflamed by the
17
prosecutor’s comments.” State v. Washington, 521 N.W.2d 35, 40 (Minn. 1994) (quotation
omitted). Here, the jury acquitted Cox on one count of second-degree assault.
For these reasons, we conclude the plain-error misconduct did not affect Cox’s
substantial rights.
2. Vouching Testimony
Cox next argues that the prosecutor improperly elicited testimony from deputies on
multiple occasions that “vouched” for victim’s testimony. “Prosecutors may not elicit
credibility-vouching testimony from trial witnesses.” State v. Robideau, 783 N.W.2d 390,
400 (Minn. App. 2010), rev’d on other grounds, 796 N.W.2d 147 (Minn. 2011). Improper
vouching occurs when one witness testifies that another witness is telling the truth or is
more believable than another witness. See State v. Ferguson, 581 N.W.2d 824, 835 (Minn.
1998); see also State v. Koskela, 536 N.W.2d 625, 630 (Minn. 1995) (stating that vouching
generally occurs when one witness makes an explicit statement about credibility of another
witness). Vouching is improper because “the credibility of a witness is for the jury to
decide, not [another] witness.” Koskela, 536 N.W.2d at 630.
Cox argues the following exchanges were improper vouching testimony. Cox
highlights testimony regarding the deputy’s decision not to charge victim with a crime:
PROSECUTOR: [D]id you ultimately cite [victim ] with
anything?

DEPUTY: I did not.

PROSECUTOR: Why not?

DEPUTY: It was determined there was no evidence
or witnesses to support any of that.
18

Cox contends the “vouching” continued when the prosecutor asked another deputy
whether, “[i]n that version of events by Mr. Cox, did that support the facts as you knew
them at that time?” The deputy responded: “They did not.” Cox then asserts that the
prosecutor engaged in improper vouching when they asked one deputy how Cox
“was . . . trying to portray his involvement in the incident.” The deputy responded that
“[t]o [him], it seemed [Cox] was attempting to shift the blame off of himself and onto
[victim].” When the prosecutor asked the deputy why he believed that Cox was “trying to
shift or divert that blame,” the deputy replied, “[b]ecause [Cox] made mention of [victim].
I don’t remember the exact words, but coming at him first, and that he was ending up going
to jail for it.” Finally, Cox contends that the prosecutor elicited improper vouching
testimony when they asked a deputy whether Cox mentioned anything that “appeared to
[him] that [Cox] was trying to minimize the incident when he was in the house.” The
deputy responded, “Mr. Cox came back into the kitchen area where the window was, with
a chrome-colored shower head in his hand, and said that that is what he had in his hand at
the time of the incident.”
For the following reasons, we are not persuaded that the above testimony constitutes
improper vouching. First, in a persuasive, nonprecedential opinion, we recently concluded
that similar testimony did not constitute vouching. See State v. Dorsey, No. A24-0816,
2025 WL 1430522, at *1 (Minn. App. May 19, 2025), rev. denied (Minn. Aug. 12, 2025).
In Dorsey, we examined the following exchange:
PROSECUTOR: Did you ever take any action against
[witness] for filing a false police report?
19

DEPUTY: No, I did not.

PROSECUTOR: And is that based on your review of the
evidence in this case?

DEPUTY: Yes.

Id. We reasoned that, because the prosecutor asked the deputy if he based his decision on
“the evidence in this case,” and not whether he believed or found the defendant credible,
there was no “explicit or implied vouching for [the witness’s] credibility.” Id. Here, the
prosecutor’s questions, and the deputy’s response, are similarly premised on a lack of
evidence. Because the testimony was based on the deputy’s knowledge of the evidence in
the case, there was no improper vouching.
Cox further argues that, even if explicit vouching did not occur, the testimony
impliedly vouched for victim’s testimony, relying on State v. Nowels, 941 N.W.2d 430
(Minn. App. 2020), rev. denied (Minn. June 16, 2020) and State v. Richardson, 514 N.W.2d
573 (Minn. App. 1994). In Nowels, we concluded implied vouching occurred when the
prosecutor stated the witness “didn’t lie.” 941 N.W.2d at 438-39. And in Richardson, we
concluded the prosecutor engaged in implied vouching when he asked a witness-attorney
if he was aware that attorneys are ethically prohibited from “put[ting] a witness on the
stand who is going to perjure himself or herself?” 514 N.W.2d at 578.
We are not persuaded that the prosecutor’s questioning in this case implied a
“guarantee of a witness’s truthfulness” like in Nowels and Richardson. See Nowels, 941
N.W.2d at 438 (quotation omitted); see also Richardson, 514 N.W.2d at 578. The
challenged testimony does not reference either the deputy’s or the prosecutor’s personal
20
opinions about the veracity of victim’s testimony. And the deputy did not testify about any
ethical codes. We therefore conclude Cox did not meet his burden to demonstrate a plain
error.8
3. Opinion Testimony (Elements)
Cox also argues that the prosecutor elicited improper opinion testimony when they
asked witnesses questions that mirrored the elements for second-degree a ssault with a
dangerous weapon.9 Under Minn. R. Evid. 701, lay witnesses can provide opinion
testimony, but only to opinions “which are (a) rationally based on the perception of the
witness; (b) helpful to a clear understanding of the witness’ testimony or the determination
of a fact in issue; and (c) not based on scientific, technical, or other specialized knowledge.”
In general, lay opinion testimony is not objectionable merely because “it embraces an
ultimate issue to be decided by the trier of fact.” Minn. R. Evid. 704. Opinion testimony
is helpful to the trier of fact if it concerns factual matters. See id., cmt. 1977.

8 Cox also argues that the prosecutor elicited improper vouching testimony when they
asked victim whether girlfriend yelled at him for his actions during the altercation. Victim
testified that “[girlfriend] was very cordial . . . she felt like I was the victim more.” This is
not improper vouching because it does not involve one witness testifying that another
witness is telling the truth or is more believable than another witnes s. See Ferguson, 581
N.W.2d at 835. The question elicited testimony from victim about why he believed
girlfriend was not upset with victim following the incident.
9 Under Minn. Stat. § 609.222, subd. 1, a person is guilty of second- degree assault if they
“assault[] another with a dangerous weapon.” And under Minn. Stat. § 609.02, subd. 6
(2022), a “dangerous weapon” includes “any device designed as a weapon and capable of
producing death or great bodily harm.”
21
Here, the record shows that the prosecutor asked victim, homeowner, and two
deputies10 questions that ultimately tracked the language of the elements for second-degree
assault with a dangerous weapon. We conclude most of this testimony does not constitute
plain error because the testimony was from lay witnesses, based upon their rational
perceptions of the events, and therefore was helpful to the jury’s understanding of the
weapons used during the incident. 11 Moreover, we have concluded that whether an item
used in the course of second-degree assault could “constitute a dangerous weapon” is “a
question of fact .” See State v. Davis, 540 N.W.2d 88, 89-90 (Minn. App. 1995) (stating
that whether defendant’s use of hands or feet as dangerous weapon is question of fact), rev.
denied (Minn. Jan. 31, 1996). As such, we are satisfied that most of the challenged
testimony is not objectionable and, therefore, Cox did not meet his burden to demonstrate
plain error.
However, Cox highlights three instances in which the prosecutor specifically asked
victim to offer his opinion regarding Cox’s intent during the altercation:

10 Law-enforcement testimony is properly considered lay testimony where it is “based on
personal observations” and helpful to the jury. See State v. Ards, 816 N.W.2d 679, 685
(Minn. App. 2012) (concluding that officer’s personal observations of defendant’s alcohol
impairment was helpful to jury).
11 The prosecutor asked victim: “And in the way that Mr. Cox was using the hammer that
morning, do you feel like he was using the hammer in a manner that would be likely to
produce death or great bodily harm to you?” and “And when Mr. Cox approached you with
that hammer cocked up by his head, were you in fear of imminent bodily harm?” The
prosecutor asked homeowner: “And based on the manner in which Mr. Cox was swinging
that machete at [victim], do you feel if Mr. Cox would have made contact, he would have
caused [victim], immediate bodily harm?” The prosecutor also asked the deputies whether
the hammer and machete they found during their search of the house could have caused
“death or great bodily harm.”
22
PROSECUTOR: And by raising the hammer and coming
after you, do you believe that that was an
intentional act by Mr. Cox where he was
trying to put you in fear of immediate
bodily harm?

PROSECUTOR: And do you feel like he was trying to
inflict bodily harm upon you at that time?

PROSECUTOR: Do you feel that Mr. Cox intended to put
you in fear of immediate bodily harm or
death?

In State v. Witucki, we concluded that “it is improper to testify as to the subjective
intention or knowledge of another.” 420 N.W.2d 217, 222 (Minn. App. 1988) (citing State
v. Salazar, 289 N.W.2d 753, 755 (Minn. 1980)), rev. denied (Minn. Apr. 15, 1988). The
questions above plainly required victim to testify about his views of Cox’s subjective
intent.
12 As such, we conclude the prosecutor engaged in plain-error misconduct when
they asked these questions.
Therefore, the burden shifts to the state to prove this misconduct did not have an
impact on Cox’s substantial rights. See Ramey, 721 N.W.2d at 302. We conclude the state
met its burden here. T he improper questioning was not pervasive; it was limited to three
questions. And, although Cox did not testify, given the strength of the state’s evidence, we
conclude that there is no reasonable likelihood that this brief misconduct affected Cox’s
substantial rights.

12 Intent is relevant to Cox’s assault (fear) charges under Minn. Stat. § 609.222, subd. 1.
Assault fear is defined as “an act done with intent to cause fear in another of immediate
bodily harm or death.” Minn. Stat. § 609.02, subd. 10 (2022).
23
4. Burden of Proof
Lastly, Cox argues the prosecutor committed misconduct when they allegedly
shifted the burden of proof in closing argument, stating: “And when you add up all of the
testimony of the witnesses here, you consider that with [girlfriend] and [ homeowner],
there’s one consistent story here.” Cox asserts that, by asking the jury to “add up” the
testimony of the witnesses, the prosecutor misled the jury into thinking that proof beyond
a reasonable doubt depends on the quantity of evidence or the number of witnesses.
Our caselaw recognizes that “[m]isstatements of the burden of proof are highly
improper and would, if demonstrated, constitute prosecutorial misconduct.” State v. Hunt,
615 N.W.2d 294, 302 (Minn. 2000). However, “courts must look at the closing argument
as a whole, rather than just selective phrases or remarks that may be taken out of context
or given undue prominence to determine whether reversible error has occurred.” State v.
McDaniel, 777 N.W.2d 739, 751 (Minn. 2010) (quotation omitted).
Cox argues the prosecutor’s statement is analogous to a metaphor offered in State
v. Trimble. 371 N.W.2d 921, 926 (Minn. App. 1985), rev. denied (Minn. Oct. 11, 1985).
There, the prosecutor stated during closing arguments:
Presumption of innocence is like a blank chalkboard. There is
nothing on there against the defendant, and until you go into
the jury room and start determining what evidence is credible
and what evidence there is against the defendant, that
presumption stays with him. . . . As more and more evidence
against the defendant is found to be credible, gradually the
presumption of innocence disappears.

24
Id. We determined that the prosecutor’s statement was “troublesome” because “the legal
standard for conviction is proof beyond a reasonable doubt, and that standard does not
depend on quantity.” Id.
Cox argues that, like the Trimble metaphor, the prosecutor’s statement suggested
that, once a large amount of evidence has been presented, the defendant loses the
presumption of innocence. We disagree. U nlike Trimble, the prosecutor’s statement did
not instruct the jury on the presumption of innocence; the prosecutor did not reference the
burden of proof in conjunction with the remark.
Instead, we conclude th e prosecutor’s statement in this case is more analogous to
Hunt. 615 N.W.2d at 302. There, during closing argument the prosecutor “made an
analogy to the ancient Greek juries, the substance of which implied that Greek juries would
place a stone on either side of a scale for each successful argument by one party or the
other.” Id. The supreme court found the analogy “questionable” but held that the argument
did “not rise to the level of plain error.” Id. Like in Hunt, the prosecutor’s statement was
not an attempt to instruct the jury on the burden of proof. We therefore conclude the
prosecutor’s statement did not rise to the level of plain error.
C. Cumulative Error
Finally, Cox argues that he was deprived of his right to a fair trial because of the
cumulative errors in the proceedings. A defendant “may be entitled to a new trial in rare
cases where the errors, when taken cumulatively, have the effect of denying [the] appellant
a fair trial.” State v. Fraga, 898 N.W.2d 263, 278 (Minn. 2017) (quotation omitted).
25
“When considering a claim of cumulative error, we look to the egregiousness of the errors
and the strength of the State’s case.” Id.
In this case we identified that four errors occurred that did not affect the verdict
separately— opinion testimony (possession), jail-time and probation evidence, bad-temper
evidence, and opinion testimony (elements). Viewing the errors together, we reach the
same conclusion. Even collectively, the errors amounted to very little of the entire trial,
and other than the bad-temper evidence—to which the district court swiftly gave a
cautionary instruction—the state did not rely on the improper evidence during closing
argument.
Moreover, the supreme court has stated that we should be more inclined to order a
new trial “in very close factual cases.” Id. at 279. We do not discern that we have such a
case here. With regard to the assault conviction, the state presented evidence in the form
of testimony from victim, homeowner, girlfriend, and four responding deputies regarding
the incident. And, as described in Part I, while circumstantial, the evidence presented
regarding possession of the ammunition was strong given its location in Cox’s bedroom
near his possessions. Based upon this record, we cannot conclude that the errors, when
considered cumulatively, denied Cox a fair trial.
Affirmed.