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This opinion is nonprecedential except as provided by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
A25-1041

State of Minnesota,
Respondent,

vs.

Lebert Clair McDowell,
Appellant.

Filed June 29, 2026
Affirmed
Larson, Judge

Hennepin County District Court
File No. 27-CR-24-22536

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

Kristyn Anderson, Minneapolis City Attorney, Lindsey Danielson, Assistant City
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Erik I. Withall, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Wheelock, Presiding Judge; Larson, Judge; and Harris,
Judge.
NONPRECEDENTIAL OPINION
LARSON, Judge
In this direct appeal, a ppellant Lebert Clair McDowell challenges his domestic-
assault conviction on three grounds. First, he argues respondent State of Minnesota
presented insufficient evidence to prove that he caused L.B.’s (victim) injuries. Second,
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he asserts the state committed prosecutorial misconduct during closing argument. Finally,
he contends the district court violated the Confrontation Clause when it admitted
testimonial hearsay. We affirm.
FACTS
In October 2024, the state charged McDowell with misdemeanor domestic assault
under Minn. Stat. § 609.2242, subd. 1(2) (2024) (domestic assault-harm). The state alleged
that McDowell intentionally inflicted bodily harm on victim , his fiancé, during an
argument in victim’s apartment where McDowell resided. The following facts were
elicited at a jury trial.
On the day of the incident, McDowell and victim began drinking alcohol around
9:30 a.m. Later, McDowell and victim began arguing, during which McDowell “put his
hands on” victim. Victim called 911 and contemporaneously recounted the incident to the
911 operator. Victim stated that an unidentified man “put his hands on” her and “he [was]
drunk as hell.” After the 911 operator reiterated that the man “put his hands on” her that
day, victim responded, “[y]es he did. I’ll show you all the bruises.” Victim then yelled at
the man “get out,” and told the operator, “[d]amn, he done cut my finger.” Victim
identified the man as her fiancé during the 911 call.
1 After the 911 call, McDowell left the
apartment and walked to a nearby bus stop.
Responding to the 911 call, Officer C.S. (officer) and his partner arrived at the
apartment and knocked on the door . They heard a person crying and what sounded like

1 At trial, McDowell confirmed that he was victim’s fiancé.
3
someone stepping on broken glass. Victim answered the door. Upon entering and while
performing a protective sweep, officer asked victim whether her assailant was still in the
apartment; victim responded that he had left. While in the apartment, officer observed
bruising on victim’s arm and shoulder area, along with a cut on her finger. Officer took
photographs of the bruises and cut. Victim again confirmed that her assailant had left.
Officer’s body-worn camera recorded this interaction (the apartment statement).
Officer and his partner left the apartment and went to the nearby bus stop where
they approached McDowell. Officer asked McDowell for identification; McDowell
refused. Officer told McDowell that he was under arrest for domestic assault. McDowell
refused to stand up and told officer he needed an arrest warrant. Officer responded, “I
don’t need an arrest warrant, the ma’am said you assaulted her” (the bus-stop statement).
Officer and his partner arrested McDowell.
Pretrial, the parties disputed the admissibility of two statements. First, McDowell
argued the apartment statement was inadmissible because it was testimonial and if
admitted, would violate the Confrontation Clause.2 The district court allowed the state to
present the apartment statement via the body-camera footage, reasoning that the apartment
statement was made during an ongoing emergency. Second, McDowell asserted that the
bus-stop statement was inadmissible hearsay. The district court disagreed and allowed the
state to admit the bus- stop statement via the body-camera footage as non-hearsay. The

2 Victim was unavailable to testify at trial.
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district court reasoned that the bus-stop statement was consistent with victim’s statements
during the 911 call.
The jury returned a guilty verdict. The district court then convicted McDowell and
sentenced him to 75 days in jail, with credit for time-served.
McDowell appeals.
DECISION
McDowell raises three arguments on appeal. First, he argues the state presented
insufficient evidence to sustain his conviction. Second, he asserts that he is entitled to a
new trial because the state committed prosecutorial misconduct during closing arguments.
Finally, he contends that he is entitled to a new trial because the district court violated the
Confrontation Clause when it allowed the state to admit the bus-stop statement. We review
each argument in turn.
I.
McDowell first argues the state presented insufficient evidence to sustain his
conviction. To prove McDowell committed domestic assault-harm, the state had to prove
that McDowell “intentionally inflict[ed] or attempt[ed] to inflict bodily harm” on victim.
Minn. Stat. § 609.2242, subd. 1(2). “Bodily harm” is defined as any “physical pain or
injury, illness, or any impairment of physical condition.” Minn. Stat. § 609.02, subd. 7
(2018). A “minimal amount of physical pain or injury” satisfies the definition of bodily
harm. State v. Jarvis, 665 N.W.2d 518, 522 (Minn. 2003). Assault-harm is a general intent
crime. State v. Fleck, 810 N.W.2d 303, 309 -10 (Minn. 2012). This means that, although
the state must prove that McDowell “intended to do the physical act forbidden,” the state
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does not need to prove that “[he] meant to or knew that [he] would violate the law or cause
a particular result.” State v. Dorn, 887 N.W.2d 826, 830 (Minn. 2016).
Here, McDowell argues the state failed to prove beyond a reasonable doubt that he
caused victim’s injuries. To prove this element, the state needed to demonstrate that
McDowell’s application of force to victim was not done “accidentally or involuntarily,”
State v. Lampkin, 994 N.W.2d 280, 291 (Minn. 2023), and that his application of force
resulted in victim’s injury, see Minn. Stat. § 609.2242, subd. 1(2).
Because McDowell challenges the sufficiency of the evidence, we must first
determine whether the state used direct or circumstantial evidence to prove McDowell
caused victim’s bodily harm. See State v. Horst, 880 N.W.2d 24, 39 (Minn. 2016). Direct
evidence is evidence “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).
McDowell contends the state relied on circumstantial evidence to prove McDowell
caused victim bodily harm. Relying on Dorn , McDowell argues that victim’s statements
in the 911 call are only circumstantial evidence that McDowell caused victim’s injuries.
In Dorn, the supreme court concluded that, even though the victim stumbled on debris,
Dorn pushing the victim constituted a battery directly causing the victim’s injuries. 887
N.W.2d at 833. McDowell asserts that, unlike Dorn, the only evidence linking victim’s
injury to McDowell’s actions was victim’s statements in the 911 call, which requires an
inference. We are not persuaded. Victim’s statement that a man—her fiancé—inflicted
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the bodily harm, McDowell’s confirmation at trial that he was victim’s fiancé, and
photographs depicting victim’s injuries are direct evidence linking McDowell’s application
of force on victim to her injuries. See Harris, 895 N.W.2d at 599 ( stating that personal
knowledge, if true, is direct evidence because it does not require additional inferences or
presumptions); see also State v. Ortley, No. A22-0783, 2023 WL 3445472, *5 (Minn. App.
May 15, 2023) (applying the direct-evidence standard after determining, as relevant here,
that statements in a 911 call were direct evidence), rev. denied (Minn. Aug. 22, 2023). 3
Therefore, we apply the direct-evidence test.
When the state relies on direct evidence, we apply “the traditional standard for
evaluating the sufficiency of the evidence.” State v. Jones, 4 N.W.3d 495, 501 (Minn.
2024). Under this standard, “we limit our review to a painstaking analysis of the record to
determine whether the evidence, when viewed in a light most favorable to the conviction,
was sufficient to permit the jurors to reach the verdict which they did.” Horst, 880 N.W.2d
at 40 (quotation omitted). When viewing the evidence in the light most favorable to the
conviction, we “assume[] that the [factfinder] believed the state’s witnesses and
disbelieved any contrary evidence.” State v. Olson, 982 N.W.2d 491, 495 (Minn. App.
2022).
We conclude the state presented sufficient direct evidence to prove beyond a
reasonable doubt that McDowell’s application of force caused victim bodily harm. Victim
stated in the 911 call that an unidentified man “put his hands on” her and “he [was] drunk

3 This opinion is nonprecedential and, therefore, not binding. We cite nonprecedential
opinions only as persuasive authority. See Minn. R. Civ. App. P. 136.01, subd. 1(c).
7
as hell.” After the 911 operator reiterated that the man “put his hands on” her that day,
victim responded, “[y]es he did. I’ll show you all the bruises.” Victim then yelled at the
man “get out,” and told the 911 operator, “[d]amn, he done cut my finger.” Victim
identified the man as her fiancé during the 911 call. At trial, McDowell confirmed that he
was victim’s fiancé. Upon arriving at the apartment, officer observed and documented the
bruising on victim’s arm and shoulder area, and the cut on victim’s finger. This is sufficient
direct evidence to prove McDowell caused victim bodily harm. See State v. Johnson, 152
N.W.2d 768, 773 (Minn. 1967) (concluding that there was sufficient evidence to constitute
“bodily harm” when the victim experienced pain from being struck); see also State v.
Mattson, 376 N.W.2d 413, 415 (Minn. 1985) (finding sufficient evidence of physical injury
based on a bruise).
For these reasons, we affirm the domestic-assault conviction.
II.
McDowell next argues that he is entitled to a new trial because the state committed
prosecutorial misconduct. Specifically, McDowell argues the prosecutor improperly
shifted the burden of proof to McDowell when she stated during closing argument:
“McDowell testified he did not provide any other reason for [victim’s] bruising on her arm
or for the cut on her finger.”
Because McDowell did not object to the prosecutor’s statement at trial, we apply
the 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
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conduct.” State v. Ramey, 721 N.W.2d 294 , 302 (Minn 2006). “If the defendant is
successful, the burden then shifts to the [s]tate to demonstrate that the error did not affect
the defendant’s substantial rights.” Portillo, 998 N.W.2d at 248 (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).
“[M]isstatements of the burden of proof are highly improper.” State v. Strommen,
648 N.W.2d 681, 690 (Minn. 2002) (quotation omitted). A prosecutor improperly shifts
the burden of proof “when they imply that a defendant has the burden of proving his
innocence.” State v. McDaniel, 777 N.W.2d 739, 750 (Minn. 2010) (quotation omitted).
However, a prosecutor does not improperly shift the burden of proof if they point to the
absence of evidence to support a defendant’s alternative theory. See State v. Nissalke, 801
N.W.2d 82, 106-07 (Minn. 2011).
We conclude that McDowell failed to meet his burden to demonstrate that the
prosecutor plainly erred. See Ramey, 721 N.W.2d at 302. Under existing caselaw, a
prosecutor can appropriately note the absence of evidence without inappropriately shifting
the burden of proof. See Nissalke, 801 N.W.2d at 106-07 (determining no prosecutorial
misconduct occurred when comments were on the absence of evidence to support the
defense’s theories); see also State v. Matthews, 779 N.W.2d 543, 552 (Minn. 2010)
(“Prosecutors are allowed to argue that there is no merit to the specific defense raised by
the defendant.”); State v. Race, 383 N.W.2d 656, 664 (Minn. 1986) (determining a
prosecutor’s remark concerning the lack of evidence and challenging one of the defense’s
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rebuttal theories did not shift the burden of proof). The prosecutor’s statement in this case
that McDowell “did not provide any other reason for [victim’s] bruising on her arm or for
the cut on her finger” is analogous and, therefore, did not contravene existing caselaw.
Accordingly, we conclude McDowell is not entitled to a new trial based on
prosecutorial misconduct.
III.
Finally, McDowell argues the district court violated the Confrontation Clause when
it allowed the state to admit the bus-stop statement. The Sixth Amendment guarantees a
criminal defendant the right to be confronted with the witnesses against them. U.S. Const.
amend. VI; see also Minn. Const. art. 1, § 6. This protection applies to the states through
the Due Process Clause of the Fourteenth Amendment to the U nited States Constitution.
See Pointer v. Texas, 380 U.S. 400, 403 (1965). A defendant ’s rights under the
Confrontation Clause are violated when a court admits a statement and (1) “the statement
. . . was testimonial,” (2) “the statement was admitted for the truth of the matter asserted,”
and (3) “the defendant was unable to cross-examine the declarant.” State v. Sutter , 959
N.W.2d 760, 765 (Minn. 2021) (quotation omitted).
The parties dispute the appropriate standard of review. McDowell argues the
harmless-error test applies because he alleges a constitutional violation. The state contends
the plain-error test applies because McDowell did not challenge the bus-stop statement
before the district court on constitutional grounds. We agree with the state. The record
shows McDowell challenged the bus-stop statement only on hearsay grounds. Therefore,
we review for plain error. See State v. Rossberg, 851 N.W.2d 609, 618 (Minn. 2014)
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(reviewing for plain error when the defendant made a hearsay objection, but not a
Confrontation Clause objection); see also State v. Vasquez, 912 N.W.2d 642, 650 (Minn.
2018) (applying plain-error standard of review to forfeited evidentiary objection).
“Under the plain-error standard, relief is available only if there is (1) error, (2) that
was plain, and (3) that affected the defendant’s substantial rights.” Rossberg, 851 N.W.2d
at 618 (quotation omitted). If the defendant meets their burden on all three elements, we
“may correct the error only when it seriously affects the fairness, integrity, or public
reputation of judicial proceedings.” Pulczinski, 972 N.W.2d at 356 (emphasis omitted).
We assume without deciding that admitting the bus -stop statement violated the
Confrontation Clause because any error did not affect McDowell’s substantial rights. See
State v. Goelz, 743 N.W.2d 249, 258 (Minn. 2007) (“If a defendant fails to establish that
the claimed error affected his substantial rights, we need not consider the other factors.”).
“An error affects substantial rights if there is a reasonable likelihood that it substantially
affected the verdict.” Rossberg, 851 N.W.2d at 618 (quotation omitted). Here, the bus-
stop statement was duplicative of properly admitted evidence in the record. Specifically,
the bus-stop statement was duplicative of victim’s statements in the 911 call that McDowell
“put his hands on” her and “cut [her] finger,” McDowell’s testimony that he applied force
to victim, and the photographs of victim’s bruises and the cut on her finger. In light of this
evidence, it is not reasonably likely that the bus-stop statement substantially affected the
jury’s verdict.

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For these reasons, we conclude McDowell is not entitled to a new trial based up on
the admission of the bus-stop statement.
Affirmed.