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This opinion is nonprecedential except as provided by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
A25-0087

State of Minnesota,
Respondent,

vs.

Benard Mogaka Okero,
Appellant.

Filed February 2, 2026
Affirmed
Ede, Judge

Goodhue County District Court
File No. 25-CR-22-1887

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

Stephen F. O’Keefe, Goodhue County Attorney, Erin L. Kuester, Assistant County
Attorney, Red Wing, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Chang Y. Lau, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Johnson, Presiding Judge; Ross, Judge; and Ede, Judge.
NONPRECEDENTIAL OPINION
EDE, Judge
This is an appeal from a final judgment of conviction for fifth-degree criminal
sexual conduct. Appellant asks that we reverse and remand for a new trial, claiming that
respondent committed plain-error prosecutorial misconduct by (A) arguing to the jury that
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his conduct caused “spiritual” and “soul harm,” (B) misusing Spreigl evidence,1 (C) asking
the jury to protect society, and (D) contending that, if the jury believed the victim, he is
guilty. We affirm.
FACTS
Respondent State of Minnesota charged appellant Benard Mogaka Okero with fifth-
degree criminal sexual conduct, in violation of Minnesota Statutes section 609.3451,
subdivision 1a(1) (2022), and fifth-degree assault, in violation of Minnesota Statutes
section 609.224, subdivision 1(2) (2022). These charges relate to allegations that Okero
sexually assaulted E.E. in 2021. The matter proceeded to a two-day jury trial, at which the
following witnesses testified: E.E.; E.E.’s mother, K.E.; a Spreigl witness, J.M.; an
investigator with the Red Wing Police Department; and Okero. The district court also
admitted a video recording of the investigator interviewing E.E. and received a redacted
transcript of the interview as a court exhibit. The following summary of facts relevant to
this appeal and consistent with the jury’s verdict stems from the trial record.
The incident underlying the charges occurred when E.E. was 16 years old and during
her first job as a certified nursing assistant at an assisted living facility in Red Wing. On
November 6, 2021, while E.E. was in training and working with Okero—who was a

1 Minnesota Rule of Evidence 404(b)(1) provides that “[e]vidence of another crime, wrong,
or act is not admissible to prove the character of a person in order to show action in
conformity therewith.” But such evidence may be admissible “for other purposes, such as
proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of
mistake or accident.” Minn. R. Evid. 404(b)(1). Evidence offered for one of these other
purposes is called Spreigl evidence. State v. McLeod, 705 N.W.2d 776, 780 n.1 (Minn.
2005) (citing State v. Spreigl, 139 N.W.2d 167, 173 (Minn. 1965)) (other citation omitted).
3
registered nurse— E.E. and Okero responded to a call from a resident. After E.E. and Okero
assisted the resident to the bathroom and closed the bathroom door , and while E.E. and
Okero were alone in the resident’s room, Okero began touching E.E. by “massaging [her]
shoulders.” He also “bent [her] over” while “rubbing his . . . penis on [her] . . . butt” and
“dug his . . . face into [her] neck,” asking: “[Y]ou’re not going to tell your mom about this,
are you?”2 E.E. “didn’t know what to say” and was “shocked” that the incident occurred
“because [she] was just trying to do [her] job” and she “didn’t think anything like that could
happen.” The incident ended when E.E. and Okero helped the resident out of the bathroom
and E.E. returned to a break area. E.E. cried while testifying about what had occurred.
Although she did not report the matter to the assisted living facility because “there
was nobody really around” and she “was just so shocked that . . . [the incident] happened
with someone that [she was] just trying to work with,” E.E. later told her mother, K.E.,
what Okero had done. K.E. reported the incident to law enforcement.
When E.E. was asked at trial why she stopped working at the assisted living facility,
she started crying. She later explained that, because of the incident, she quit. In the months
that followed, E.E. began smoking “weed” and drinking “every day.” She skipped school
and “started doing really bad.” E.E. testified that she never wanted to work alone with men
again and that the incident had caused her, and continued to cause her, “emotional and
physical harm.”

2 During his testimony, Okero denied this conduct.
4
As a Spreigl witness, J.M. testified about a separate incident of sexual assault by
Okero in the workplace. 3 In early 2020, J.M. worked as a certified nursing assistant in a
long-term care facility in Edina. Okero was her supervisor. On her first or second day of
work, J.M. and Okero were assisting a resident when Okero reached around J.M., put his
hand up her shirt, grabbed her breasts, and began kissing her neck. Okero “didn’t stop when
[J.M.] said, ‘Stop.’” Because J.M. was trained not to “freak out in front of [her] residents,”
she “just kind of stood there” until Okero “finally stopped” and left.
The parties’ opening statements and closing arguments reflect that E.E.’s credibility
and Okero’s intent were disputed throughout the trial. In his opening statement, Okero
asserted:
There [were] no witnesses. And you will hear [E.E.’s]
experience that night or that evening. And as we go
forward, . . . you just have to ask yourself, was it really sexual
contact? Is there any reason not to believe the witness?
Did . . . Okero have sexual or aggressive intent? If there wasn’t
sexual contact or if you determine that . . . Okero did not have
sexual or aggressive intent, then you must acquit on the
criminal sexual conduct charge. And we leave it up to you to
make that decision. . . .

3 Before trial, the district court ruled that this Spreigl evidence was admissible to show
Okero’s “intent, lack of mistake, and common plan or scheme.” When J.M. testified, the
district court provided a cautionary instruction that the “evidence [was] being offered for
the limited purpose of assisting [the jury] in determining whether . . . [Okero] committed
those acts with which . . . [Okero was] charged here in this complaint,” that the evidence
was “not to be used to prove the character of . . . [Okero] or that . . . [Okero] acted in
conformity with such character,” that Okero was “not being tried for and may not be
convicted of any offense other than the charged offense,” and that the jury was “not to
convict . . . [Okero] on the basis of any conduct on a separate occasion” because “[t]o do
so might result in unjust double punishment.”
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And throughout cross-examination, Okero’s counsel challenged E.E.’s credibility,
including by: stating that Okero was “foreign” and asking whether E.E. “resent[ed] people
from other countries that come over here”; questioning whether, “around the date of the
incident, . . . [E.E. was] experimenting with drugs or alcohol”; and inquiring about
perceived discrepancies between E.E.’s direct testimony and her responses on cross-
examination.
During its summation and without objection, the state discussed the elements of
fifth-degree criminal sexual conduct, provided a detailed review of how E.E.’s testimony
satisfied each of those elements, and argued as follows:
In looking at all of the circumstances, reviewing the testimony,
you’re asked to determine who you believe; and when looking
at who you believe, let us look at the full circumstances. Let us
look at the why, let us look at who has the most to lose and who
has nothing to lose because they’ve already lost so much of
themselves.

. . . .

When we look at the element of harm, you think of a
harm in the way that maybe when you look at it from a first
dimension, maybe harm is bruises, broken bones, maybe it is a
cut. We know that broken bones heal. We know that bruises
fade. We know that cuts become scars and maybe they lighten
in time. And then we look at the harm that we heard described
yesterday over and over and over again. There are some types
of physical harm, sexual harm that cause harm on all the levels
of the being. The physical harm, the emotional harm, the
spiritual harm. This is harm of the soul. This is what we
collectively heard and saw described in December of 2021 and
in July of 2024, harm of the soul. Because there are some
injuries that we can’t capture on a photograph, that video
doesn’t show; but the body knows those scars and carries
[them], and we collectively in this room saw the pain that those
scars . . . leave behind. That sexual assault that happened on
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November 6th, 2021, defined [E.E.], not because it was just her
first job, not because she didn’t understand what . . . happened
to her, it’s because it harmed the soul and has continued to this
day.

. . . .

This is a case about who you believe. You’re asked to
look at all of the facts, all of the circumstances; and, yes, you’re
asked to look at what that person said happened. [E.E.] made a
report to her mom, made a report to law enforcement. She came
into this courtroom three-plus years later. She answered
questions about a sexual assault, private questions from me and
intrusive questions from the defense. We are all doing our job,
and yet she didn’t back down, she maintained what she has
from the very beginni ng. That she was alone in a resident’s
room with a registered nurse, . . . Okero, someone she didn’t
even know what his last name was because they had worked
such a short time together; that he positioned the bodies and
that he intentionally ground his penis on her while telling her,
you’re not going to tell your mother. What more could she do?
She’s come into the courtroom, she’s faced cross examination,
and yet she’s maintained . . . what her experiences [were] from
2021 all the way until today and at great cost to her. We’ve
heard what her life was before and the soul harm that happened
after, and we’ve heard about the struggle that she did every
single day to get herself back to where she was before she was
sexually assaulted by . . .
[Okero].

. . . .

. . . What is an experience that causes soul harm? It
comes down to who you believe. [E.E.] was 16, only days on
the job, her first job. [Okero] was an adult, a supervisor. On so
many levels he had more power than her. It wasn’t so simply a
40-year-old versus a 16-year -old, a registered nurse versus a
trainee. It was the fact that he was the adult in power at the time
and took advantage of that power. This isn’t a situation where
they knew each other. They were basically strangers who
happened to work in the same building . . . for days, not weeks,
not years. These are two individuals that were only brought
together by . . . [Okero’s] actions. [E.E.] was chosen. . . . [S]he
was chosen by . . . [Okero], yes, for her age, yes, for the
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opportunity that presented itself, yes, for the power imbalance;
but most of all, she was chosen because he believed that she
wouldn’t tell anyone. Remember the statement, you’re not
going to tell your mom, are you? Because he also believed that
no one would believe her if she did.

We are here asking you to believe [E.E.] If you believe
[E.E.], . . . [Okero] is guilty. That’s as simple as the law is. And
doesn’t [E.E.] warrant belief? [E.E.] and [J.M.], two people
who should never have passed. [J.M.] in 2020; [E.E.] in 2021.
[J.M.], two days on the job; [E.E.], maybe four days on the job.
[J.M.], 23 years of age; [E.E.], 16 years of age. [J.M.], Edina,
Minnesota; [E.E.], Red Wing, Minnesota. Fast forward three
years. [J.M.], state of Georgia; [E.E.], Red Wing, Minnesota.
Never shall these two pass. Two women, two lifetimes away,
two different communities, two different states, brought
together by one shared, soul-harming experience, brought
together because they were sexually assaulted by . . . Okero.
Both went to the police asking that . . . Okero never be able to
do this again.

I ask you to review the instructions, to look at the two
charges in front of you. I ask you to believe [E.E.],
find . . . [Okero] guilty, ensure that no one else has to
experience this level of harm to the soul. Thank you.

Okero did not object to these closing arguments by the state.
During the defense summation, Okero’s counsel maintained his challenges to E.E.’s
credibility and the state’s evidence of his intent, arguing:
This . . . decision, I’d like you to base it on what you heard
today, take into consideration the lack of eyewitnesses, the
alleged victim’s testimony[,] . . . Okero’s testimony, the
investigator’s testimony, . . . as well as [E.E.’s] mom, her
testimony, you’re the ones that determine who to believe. We
heard the mother and investigator attest to . . . [E.E.’s] story,
and they weren’t eyewitnesses. There were no eyewitnesses.

We heard how the incident impacted [E.E.] She told the
investigator that she had been made aware that . . . Okero was
a creep. . . . And . . . in her testimony yesterday, she also left
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out that people at her work considered . . . Okero to be a creep.
So [E.E.] . . . already had a negative perception of . . . Okero
before the incident. She testified, she left some things out, she
added some things from her forensic interview with [the]
investigator. . . .

. . . Okero’s hands were never on a breast or a butt,
[E.E.’s] breasts or butt. No clothes were taken off either, [E.E.]
or . . . Okero. . . . You decide the additional details that came
out in [E.E.’s] testimony after hearing the forensic interview.

. . . [A]nd it’s going to be your duty . . . to decide
whether to believe beyond a reasonable doubt that the acts
happened. And so when we talk about reasonable doubt, it’s
not a hunch, it’s not more likely than not. It’s a really high
standard, it’s . . . beyond a reasonable doubt. Changing stories
should raise doubt.

Further, you’re going to have to determine whether
beyond a reasonable doubt . . . Okero had sexual or aggressive
intent during this incident. . . . [H]e was in close quarters with
[E.E.] in this incident. And [in] these close quarters, there was
a machine with them. And . . . he testified that after he
deposited the resident in the bathroom, that he extracted this
machine, and . . . I can see . . . Okero pulling back the machine
(indicating) and possibly making a grunt sound.

But it’s up to you who to believe; and . . . if you don’t
think that . . . beyond a reasonable doubt there was sexual
conduct, then you must acquit. But that decision is for you to
make. . . .

The jury found Okero guilty of gross misdemeanor fifth- degree criminal sexual
conduct and not guilty of misdemeanor fifth- degree assault. The district court sentenced
Okero to 364 days in jail, with credit for 109 days served. Okero appeals.
DECISION
Okero contends that the state committed plain-error prosecutorial misconduct by
(A) arguing to the jury that his conduct caused “spiritual” and “soul harm,” (B) misusing
9
the Spreigl evidence, (C) asking the jury to protect society, and (D) contending that, if the
jury believed E.E., he is guilty.
When a defendant fails to object—including during summation, as is the case here—
appellate courts review claims of prosecutorial misconduct under a modified plain-error
standard. State v. Ramey, 721 N.W.2d 294, 302 (Minn. 2006). Under that standard, a
defendant bears the initial burden of establishing error that is plain. Id. “For an error to be
plain, the issue must have been clear or obvious.” State v. Portillo, 998 N.W.2d 242, 250
(Minn. 2023) (quotation omitted). “Usually this is shown if the error contravenes case law,
a rule, or a standard of conduct.” Id. (quotation omitted). “An error is plain if it contravenes
a principle that is conclusively resolved at the time of appeal.” Id. (quotation omitted).
A successful demonstration of plain-error prosecutorial misconduct by the
defendant shifts the burden to the state to show that the error did not affect the defendant’s
substantial rights. Id. at 248. “To meet its burden, the State must show 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.” State v. Thompson, 3 N.W.3d 257, 264 (Minn.
2024). “To determine whether there is a reasonable likelihood that the prosecutor’s error
had a significant effect on the verdict, [appellate courts] 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) rebu t the improper suggestions.”
Portillo, 998 N.W.2d at 251 (quotation omitted). In addition, “[t]he impact of a
prosecutor’s improper remarks during closing argument may be lessened by the district
court’s jury instructions.” State v. Segura, 2 N.W.3d 142, 163 (Minn. 2024). “If the State
10
fails to demonstrate that the alleged error did not affect the defendant’s substantial rights,
[appellate courts] 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).
“A reviewing court considers the closing argument as a whole and does not focus
on selective phrases or remarks.” State v. Chauvin, 989 N.W.2d 1, 34 (Minn. App. 2023)
(quoting State v. Taylor, 650 N.W.2d 190, 208 (Minn. 2002)), rev. denied (Minn. July 18,
2023). “‘The state has a right to vigorously argue its case’ and its argument ‘is not required
to be colorless.’” Id. (quoting State v. Davis, 735 N.W.2d 674, 682 (Minn. 2007)). While
the state may neither “inflame[e] the passions and prejudices of the jury” nor
“misstat[e] . . . the burden of proof,” Ramey, 721 N.W.2d at 300, “the [s]tate may present
all legitimate arguments on the evidence and all proper inferences that can be drawn from
that evidence,” State v. Westrom, 6 N.W.3d 145, 157 (Minn. 2024), cert. denied, 145 S. Ct.
418 (2024).
We address each of Okero’s arguments in turn.
A. Okero has not carried his burden of establishing that the state
committed plain-error prosecutorial misconduct in arguing that Okero
caused “soul” and “spiritual harm.”

Okero argues that the prosecutor “inflame[d] the passions and prejudices of the
jury” by improperly appealing to religious prejudice through references to “soul” and
“spiritual harm” in summation. This argument is unavailing.
To support his position, Okero relies on the Minnesota Supreme Court’s decision in
State v. Wangberg, 136 N.W.2d 853 (Minn. 1965). In Wangberg, “the state asked for a
conviction under Divine law even if the defendant was innocent under Minnesota law,”
11
and the supreme court held that the “argument constituted an unwarranted and improper
appeal to religious prejudice [that] require[d] a new trial.” 136 N.W.2d at 855. But
considering the closing arguments here as a whole rather than focusing on selective phrases
or remarks, see Chauvin, 989 N.W.2d at 34, we conclude that the prosecution’s references
to “soul” and “spiritual harm” are ambiguous rather than overt appeals to religious
prejudice, as in Wangberg.
Soul is defined as “[a] part of humans regarded as immaterial, immortal, separable
from the body at death, capable of moral judgment, and susceptible to happiness or misery
in a future state.” The American Heritage Dictionary of the English Language 1672 (5th
ed. 2018). And spiritual is defined as “[o]f, concerned with, or affecting the soul.” Id. at
1689. Taken together and in context, the prosecution’s references to “soul” and “spiritual
harm” are not unwarranted and improper appeals to religious prejudice. See Wangberg,
136 N.W.2d at 855. E.E.’s testimony—during which she cried —established several ways
that the incident had caused her, and continued to cause her, “emotional and physical
harm,” including: leading her to quit working at the assisted living facility and to avoid
working alone with men; smoking “weed” and drinking “every day”; skipping school; and
“doing really bad.” Because the totality of the state’s summation used this testimony in
“asking [the jury] to believe” E.E., we conclude that the prosecutor made “legitimate
arguments on the evidence and all proper inferences that can be drawn from that evidence”
as to the credibility of E.E.’s account. Westrom, 6 N.W.3d at 157.
The Minnesota Supreme Court’s decision in State v. Hanson is instructive. 176
N.W.2d 607 (Minn. 1970). In Hanson, the supreme court characterized Wangberg as
12
“concerning the mischief [that] results when jurors are urged to apply sanctions for the
enforcement of divine law,” yet ruled that a “reference by the prosecution in . . . closing
argument to the words of the Fifth Commandment, ‘Thou shalt not kill,’ was, at best,
inappropriate.” Id. at 615. Considering “the entire argument of the prosecuting attorney in
light of . . . Wangberg,” the supreme court described the state’s summation as “temperate,”
and, “[f]or the most part[,] . . . an objective analysis of the evidence,” reasoning that “[t]he
reference to the Fifth Commandment was very much incidental to its main thrust.” Id.
Consequently, the supreme court held that the prosecution’s closing arguments did “not
constitute a prejudicially erroneous appeal to bias and prejudice” and the court did “not
consider it a basis for reversal.” Id.
Given the supreme court’s decision in Hanson that the state’s reference to the Fifth
Commandment in closing argument was not reversible error, we cannot say that Okero has
carried his initial burden of establishing plain error as to the prosecutor’s discussion of the
“soul” and “spiritual harm” that E.E. experienced here, which was incidental to the
summation’s main thrust—that E.E.’s account is credible. See Ramey, 721 N.W.2d at 302.
Put differently, the state’s closing arguments do not amount to “clear or obvious” error by
“contraven[ing] case law, a rule, or a standard of conduct,” and it did not violate “a
principle that is conclusively resolved at the time of appeal.” Portillo, 998 N.W.2d at 250
(quotations omitted). We therefore conclude that the state did not commit plain-error
prosecutorial misconduct in arguing that Okero caused “soul” and “spiritual harm.”

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B. Okero has not carried his burden of showing that the state committed
plain-error prosecutorial misconduct in its closing argument about the
Spreigl evidence.

Okero maintains that the prosecutor sought to “inflam[e] the passions and prejudices
of the jury” by improperly using the Spreigl evidence “to imply that [he] had a propensity
for sexually assaulting young women.” We conclude that Okero has not carried his burden
of showing that the state’s closing argument about the Spreigl evidence amounted to plain-
error prosecutorial misconduct.
On appeal, Okero has not challenged the district court’s pretrial ruling admitting the
Spreigl evidence for the purposes proffered by the state—intent, lack of mistake, and
common plan or scheme. See Minn. R. Evid. 404(b)(1). In fact, he concedes that “it was
appropriate for the state to argue [that Okero] perpetrated the alleged sexual assault against
E.E. in light of the similarity in the circumstances under which J.M. and E.E. claimed to
have been assaulted.” Although Okero relies on our decision in State v. Peterson to claim
that the state used the Spreigl evidence in “an improper manner,” we conclude that
Peterson is distinguishable and that the prosecutor appropriately referred to J.M.’s
testimony to argue that Okero committed the charged conduct. 530 N.W.2d 843 (Minn.
App. 1995).
In Peterson, the prosecutor argued in closing that the alleged victim and a Spreigl
witness “reported what happened to them at the hands of [the defendant,] totally
independent of each other, and the idea that this [was] somehow one big coincidence just
stretche[d] reality and common sense too far.” Id. at 848. Reasoning that “[t]his argument
turned Spreigl evidence into improper substantive evidence” by “turn[ing] the case from
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one in which [the defendant] was on trial for molesting [the alleged victim of the charged
conduct] to one in which the jury was deciding whether [the defendant] molested” both the
alleged victim and the Spreigl witness, we held that “[t]he prosecutor’s comments
impermissibly implied that the jury would be defying common sense if they did not
convict” the defendant. Id.
Unlike the prosecutor in Peterson, however, the prosecutor here argued that Okero
was guilty of the charged conduct by properly using the Spreigl evidence for the admitted
purposes of showing intent—which Okero had contested throughout the trial —as well as
lack of mistake and common plan or scheme. The prosecutor highlighted the similarities
between the circumstances of E.E.’s and J.M.’s experiences with Okero, including when
and where they encountered him, how long they had been on the job, and their relative ages
at the time. And consistent with both Minnesota Rule of Evidence 404(b)(1) and the district
court’s cautionary instruction, the state did not use the Spreigl evidence to prove Okero’s
character and argued neither that he acted in conformity with such character nor that he
was being tried for and could be convicted based on his conduct against J.M.
Okero has failed to carry his initial burden of establishing plain error that is clear or
obvious. See Portillo, 998 N.W.2d at 250; Ramey, 721 N.W.2d at 302. Thus, we conclude
that Okero has not shown that the state committed plain-error prosecutorial misconduct in
its closing arguments about the Spreigl evidence.

15
C. The state has carried its burden of showing that the prosecutor’s plainly
erroneous argument s about protecting society did not affect Okero’s
substantial rights.

Okero contends that the state “urged the jury to convict him to ‘ensure’ he did not
continue in [a] pattern of [sexually assaultive] behavior,” which he asserts was “plain
misconduct” that was “aimed at inflaming the passions and prejudices of the jury” by
“ask[ing] the jury to protect society with its verdict.” This contention does not merit
reversal.
As Okero points out, we have held that “[i]t is improper for the prosecutor to make
statements urging the jury to protect society or send a message with its verdict.” See State
v. Duncan, 608 N.W.2d 551, 556 (Minn. App. 2000) (citing State v. Salitros, 499 N.W.2d
815, 819 (Minn. 1993) ) (other citation omitted), rev. denied (Minn. May 16, 2000); see
also State v. Hoppe, 641 N.W.2d 315, 320 (Minn. App. 2002) (“It is improper for a
prosecutor to urge the jury to protect society with its verdict.”), rev. denied (Minn. May
14, 2002). Here, the prosecutor argued that E.E. and J.M. “went to the police asking
that . . . Okero never be able to do this again” and requested that the jury “ensure that no
one else has to experience this level of harm to the soul.” These arguments are clearly and
obviously erroneous because they contravene caselaw and violate “a principle that is
conclusively resolved at the time of appeal.” Portillo, 998 N.W.2d at 250 (quotation
omitted). Accordingly, Okero has carried his initial burden of establishing that the state’s
closing arguments constituted plain-error prosecutorial misconduct. See Ramey, 721
N.W.2d at 302.
16
But the state has met its burden to show that this plain error did not affect Okero’s
substantial rights. See Portillo, 998 N.W.2d at 248. Based on the strength of the evidence
against Okero, the limited nature of the prosecutor’s improper suggestions, and Okero’s
opportunity and efforts to rebut the state’s initial closing argument, there is no reasonable
likelihood that the plain-error prosecutorial misconduct had a significant effect on the
verdict. See id. at 251.
The evidence against Okero was relatively strong. E.E.’s trial testimony about
Okero’s conduct largely aligned with her statements to her mother, K.E., and to the
investigator during her interview, which was video recorded and received as an exhibit.
The state also presented evidence of Okero’s intent, lack of mistake, and common plan or
scheme through J.M.’s testimony about her similar experience of sexual assault by Okero
in the workplace.
The improper suggestions about protecting society were limited rather than
pervasive. The prosecutor’s statement about E.E. and J.M. asking police that “Okero never
be able to do this again” and the prosecutor’s request that the jury “ensure that no one else
has to experience this level of harm to the soul” are constrained to four lines on one page
of the trial transcript. By contrast, the state’s initial and rebuttal closing arguments span
235 lines across ten transcript pages, and the entire trial transcr ipt is 285 pages long. See
State v. Davis, 735 N.W.2d 674, 682 (Minn. 2007) (concluding that “the prosecutor’s
improper suggestions were not pervasive” because they “cover[ed] less than one of the 64
pages of the transcript”).
17
Because the prosecutor made the challenged statements during the state’s initial
closing argument, Okero had the opportunity to rebut improper suggestions during the
defense summation. And Okero did so, including by maintaining that his “hands were never
on . . . [E.E.’s] breasts or butt,” that E.E.’s “[c]hanging stories should raise doubt,” and that
he “possibly ma[de] a grunt sound” while “pulling back the machine” after helping the
resident to the bathroom while “in close quarters with” E.E., which suggested that he did
not have “sexual or aggressive intent during this incident.”
As a result, we conclude that the state has carried its burden of showing that the
prosecutor’s plainly erroneous arguments about protecting society did not affect Okero’s
substantial rights. See id.
D. Okero has not carried his burden of showing that the state committed
plain-error prosecutorial misconduct in its closing arguments that, if the
jury believed E.E., he is guilty.

Okero argues that “[ t]he prosecutor committed plain misconduct by diluting the
state’s burden of proof” in asking the jury to believe E.E. and asserting that, if the jury
believed E.E., he is guilty. We conclude that, on this issue, Okero has not met his initial
burden of identifying plain-error prosecutorial misconduct.
In support of his claim that the prosecutor committed “clear or obvious” error by
“contraven[ing] case law” and violating “a principle that is conclusively resolved at the
time of appeal,” Portillo, 998 N.W.2d at 250 (quotations omitted), Okero relies on our
nonprecedential and therefore nonbinding decision in State v. Cooper, No. A13-2318, 2014
WL 7011140 (Minn. App. Dec. 15, 2014) . See Minn. R. Civ. App. P. 136.01, subd. 1(c)
(“Nonprecedential opinions . . . are not binding authority except as law of the case, res
18
judicata or collateral estoppel, but nonprecedential opinions may be cited as persuasive
authority.”). In Cooper, we concluded that the prosecutor plainly erred in making “several
arguments to the jury, all of which were some variation of[:] ‘[I]f you believe when [the
victim] got up in here and told you his testimony, if you believe that is true, [the defendant]
is guilty.’” 2014 WL 7011140, at *5.4 Here, Cooper is not persuasive authority because it
is distinguishable.
Considering the state’s closing arguments as a whole rather than focusing on the
challenged phrases that Okero highlights, see Chauvin, 989 N.W.2d at 34, we conclude
that—unlike Cooper— the prosecutor here did not “necessarily impl[y]” that, if Okero was
not guilty, then E.E. was not telling the truth, 2014 WL 7011140, at *5. Instead, the totality
of the state’s summation shows that the prosecutor informed the jury that it could find
Okero guilty if it believed E.E. The prosecutor responded to Okero’s challenges to E.E.’s
credibility throughout the trial, which began during his opening statement and continued
through cross-examination and summation. The state’s closing arguments included a
discussion of the elements of fifth- degree criminal sexual conduct, a detailed review of
how E.E.’s testimony satisfied each of those elements, a request that the jury believe E.E.,
and an explanation of why, based on all the trial evidence, E.E. “warrant[ed] belief.”

4 On the fairness-and-integrity prong of the modified plain-error standard, we ultimately
affirmed the defendant’s conviction based on our conclusion that “reversal [was] not
warranted” because “granting a new trial under [the] circumstances [of that case] would
[have] be[en] an exercise in futility and a waste of judicial resources.” Id. at *6 (quotation
omitted).
19
Cooper is also distinguishable because, in that opinion, we relied on Minnesota
Supreme Court caselaw that “noted the dangers inherent in . . . [the challenged closing]
argument when analyzing the validity of ‘were they lying’ questions.” 2014 WL 7011140,
at *5 (citing State v. Pilot, 595 N.W.2d 511 (Minn. 1999)). 5 But after its decision in Pilot,
the supreme court later characterized that case as “indicat[ing] that [were-they-lying]
questions are permitted in the circumstance when the defendant ‘[holds] the issue of the
credibility of the state’s witnesses in central focus.’” State v. Morton, 701 N.W.2d 225, 235
(Minn. 2005) (quoting Pilot, 595 N.W.2d at 517). This occurs “when the defense . . . by
unmistakable insinuation accuses a witness of a falsehood.” Leutschaft, 759 N.W.2d at 423.
Cooper did not analyze whether the defense had “unmistakably insinuated” that the victim
was not credible. 2014 WL 7011140, at *5. Here, however, Okero held the issue of E.E.’s
credibility in central focus throughout the trial, concluding with his closing argument that
unmistakably insinuated E.E. had testified falsely. Okero asserted that E.E. “already had a

5 In Pilot, the supreme court explained that

“[w]ere they lying” questions, in general, are questions the
state poses to a criminal defendant on cross-examination.
Typically, the prosecutor will first ask the defendant if he heard
the testimony of one or more of the state’s witnesses. Then the
prosecutor will ask the defendant if the witnesses’ testimony
was accurate. If the defendant states that the witnesses’
testimony was not accurate, the prosecutor will ask the
defendant to comment on the veracity of the witnesses’
testimony by asking the defendant, “Were they lying?”

595 N.W.2d at 516 n.1. Minnesota is in the minority of jurisdictions that “have held that
such questions are generally improper, but have opted to decline a bright-line prohibition
in favor of case-by-case resolution through the exercise of judicial discretion.” State v.
Leutschaft, 759 N.W.2d 414, 421 (Minn. App. 2009), rev. denied (Minn. Mar. 17, 2009).
20
negative perception of . . . Okero before the incident,” that “she left some things out” and
“added some things from her forensic interview with [the] investigator,” and that she was
“[c]hanging stories” about conduct that Okero had denied and for which “[t]here were no
eyewitnesses.”
Finally, following its decision in Pilot, the supreme court held that “[t]he State
telling jury members during closing arguments that they must decide who they believe is
not analogous to ‘were they lying’ questions of witnesses on the stand.” State v. Caine, 746
N.W.2d 339, 360 (Minn. 2008). Consistent with Caine, the prosecutor here appropriately
told the jury during closing arguments that, “[i]n looking at all of the circumstances,
reviewing the testimony, [the jury was] asked to determine who [it] believe[d.]”
For these reasons, we conclude that Cooper is distinguishable and that Okero has
not carried his initial burden of showing that the state committed plain-error prosecutorial
misconduct in its closing arguments that, if the jury believed E.E., he is guilty. See Portillo,
998 N.W.2d at 250; Ramey, 721 N.W.2d at 302.
Affirmed.