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This opinion is nonprecedential except as provided by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
A25-1348

State of Minnesota,
Respondent,

vs.

Tony Dean Boos,
Appellant.

Filed June 22, 2026
Affirmed
Schmidt, Judge

Hennepin County District Court
File No. 27-CR-22-20223

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

Mary F. Moriarty, Hennepin County Attorney, Nicholas G. Kimball, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

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

Considered and decided by Schmidt, Presiding Judge; Smith, Tracy M., Judge; and
Beane, Judge.
NONPRECEDENTIAL OPINION
SCHMIDT, Judge
Appellant Tony Dean Boos argues that she is entitled to a new trial because the
prosecutor committed reversible misconduct. Boos also raises arguments in a pro se
supplemental brief. We affirm.
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FACTS
Law enforcement and the fire department responded to a call from a hotel that had
an active fire in room 311. Officers went to the third floor to evacuate guests and saw Boos
wandering the hallway and “peering” into room 311. Inside room 311, the sprinkler heads
were covered with towels and the smoke detector was covered with a plastic baggie. Hotel
staff told officers that Boos was the most recent tenant in room 311.
Shortly thereafter, officers found Boos in room 325. When an officer spoke with
Boos, she did not answer the officer’s questions about the fire. Instead, she “spoke about
UFOs and aliens and NASA.” Boos told the officer that she had stayed in room 311, but
it “had maintenance issues, and so she got switched to [r]oom 325.”
While one officer stayed in room 325 with Boos, another officer confirmed that
room 311 was still registered to Boos, but she had relocated to room 325. The officer also
reviewed surveillance footage, which showed Boos entering room 311 early in the morning
and then, a few hours later, the hallway beginning to fill with smoke.
After speaking with her for nearly an hour, officers released Boos. But she stayed
at the scene. After confirming that Boos still had access to room 311, reviewing the
surveillance footage, and determining that Boos was a suspect, officers arrested her.
By amended complaint, respondent State of Minnesota charged Boos with one count
of first-degree arson. After a three-day trial, the jury found Boos guilty. The district court
sentenced Boos to 50 months in prison.
Boos appeals.
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DECISION
Boos argues that her conviction must be reversed and that she is entitled to a new
trial because the prosecutor committed reversible misconduct. Boos also submitted a
supplemental pro se brief. We first address the issues raised in Boos’ counseled brief and
then turn to her pro se arguments.
I. The prosecutor did not commit reversible misconduct.
Boos argues that the prosecutor committed reversible misconduct by: (1) telling the
jury they could not consider law enforcement’s failure to investigate other individuals;
(2) telling the jury it could not consider the absence of a motive; (3) disparaging defense
counsel’s argument; (4) eliciting inadmissible profile evidence about arsonists; and
(5) arguing irrelevant facts not in the record and diluting the state’s burden of proof. Of
the specific incidents raised, defense counsel only objected to the prosecutor’s comments
about law enforcement’s failure to investigate other individuals. Defense counsel raised
no objection to the other four incidents. We address each challenge in turn.
“Prosecutors have an affirmative obligation to ensure that a defendant receives a
fair trial.” State v. Jones, 753 N.W.2d 677, 686 (Minn. 2008) (quotation omitted).
Consequently, prosecutorial misconduct may result in the denial of a fair trial.
State v. Ramey, 721 N.W.2d 294, 300 (Minn. 2006). “A prosecutor engages in
prosecutorial misconduct when he violates clear or established standards of conduct, e.g.,
rules, laws, orders by a district court, or clear commands in this state’s case law.”
State v. McCray, 753 N.W.2d 746, 751 (Minn. 2008) (quotation omitted).
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A. The prosecutor did not commit reversible misconduct in discussing law
enforcement’s investigation of the charged offense.

We will reverse a district court’s decision to overrule an objection based on an
allegation of prosecutorial misconduct when, “considered in the context of the trial as a
whole,” the misconduct was so serious “that the defendant’s constitutional right to a fair
trial was impaired.” State v. Johnson, 616 N.W.2d 720, 727-28 (Minn. 2000). When
assessing objected-to alleged misconduct in a prosecutor’s closing argument, we look to
the argument “as a whole rather than focus on particular phrases or remarks that may be
taken out of context or given undue prominence.” Id. at 728 (quotation omitted).
Minnesota appellate courts have found “prejudicial prosecutorial misconduct only in
extreme circumstances[.]” State v. McDaniel, 777 N.W.2d 739, 752 (Minn. 2010).
Boos argues that the prosecutor committed reversible misconduct based upon the
following closing argument:
STATE: Let’s also talk about this “let’s blame the
investigation, let’s blame the police,” right? Police did a bad
job, blame them. One, the police are not on trial here, so a
verdict based on that is totally inappropriate. Second, they
didn’t interview all these other people here. How many other
people were seen on video coming and going from 311? Zero,
only Ms. Boos. Who did they interview? Ms. Boos.

. . . .

STATE: As I just said to you, you’re not to speculate about
things from outside of this courtroom. Only consider the
evidence before you. These statements about other people
potentially having the card? Speculation. About what other
witnesses might have said? Speculation. That is not evidence,
folks. The evidence is what you heard from these witnesses
and from the exhibits you received.

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In overruling defense counsel’s objection, the district court made the following ruling:
THE COURT: . . . first, with regard to the speculation, I said at
bench conference, which is then what [the prosecutor] came
back and said, which is that it’s true that jurors are instructed
that they are only to consider the evidence they heard in court,
and I did think that was fair to say in response to the defense’s
statements about they—they didn’t talk to other witnesses.

And there is case law that if the witnesses are equally available
it should not be—essentially, the State should not be dinged in
argument for not having brought them, and therefore, that’s a,
you know, fatal flaw in their case. So I think that the
speculation statement was legitimate in terms of they have all
the instructions, they know what they’re to consider, they also
know they can —that the State has to prove its case beyond a
reasonable doubt. We’ve reiterated that over and over.

And so I think together that shows them that they can’t
speculate about things that aren’t evidence, that evidence has
to meet the appropriate standard, it has to be enough. And if
the holes that [defense] raised cause them to question that
evidence, then that would be reasonable doubt and that’s what
he was arguing. So that’s a long way of saying I think it was
within the bounds of the law so that’s why I asked him to
mention that they have to consider the evidence in the
courtroom and not speculate about things that were not
evidence.

With regard to the inappropriate to consider the police. I took
it in the way that [the prosecutor] just said, which is that,
essentially, you can’t render a verdict just because you don’t
like cops. Now, I understand your point, [defense counsel],
that you felt like he was saying it’s inappropriate to consider
sloppy police work. That’s a huge defense for a lot of people.
I took it as the way [the prosecutor] described it. I understand
it was a little bit ambiguous, but I think the instructions were
clear enough. And I don’t know if you’re looking to bring
them back to remind them of the burden, but I do think the
instructions were very clear. I think you both hammered on the
burden, but I do think the instructions were very clear. I think
you both hammered on the burden of proof, so I think that
we’re in a fair position, but I understand your concern.
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In considering the prosecutor’s closing argument as a whole, we agree with the
district court’s well-reasoned ruling that the prosecutor’s argument was appropriate. In the
context of the entire argument, the prosecutor told the jury that evidence does not include
speculation or attorney statements. As the district court noted, that is an accurate recitation
of the law and consistent with the instructions provided to the jury.
B. Boos’ Unobjected-To Allegations of Prosecutorial Misconduct
Boos also asserts four unobjected-to incidents of alleged prosecutorial
misconduct: (1) telling the jury that it could not consider the absence of a motive;
(2) disparaging defense counsel’s argument; (3) eliciting inadmissible profile evidence;
and (4) arguing facts not in the record and diluting the state’s burden of proof.
We review unobjected-to allegations of prosecutorial misconduct under a modified
plain-error standard. Ramey, 721 N.W.2d at 302. The defendant must first demonstrate an
error that is plain. Id. Upon establishing plain error, the burden shifts to the state to show
that the error did not affect the defendant’s substantial rights. Id. If the state fails to meet
its burden, we then “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).
1. The prosecutor’s discussion of motive during closing arguments
did not constitute plain error.

Boos argues that the prosecutor misstated the law and misled the jury by stating:
STATE: The State can’t tell you motive of why Ms. Boos did
what she did. At the beginning of this trial, [defense counsel]
told you [to] “think about that.” You shouldn’t think about that
because that is not an element that you are to consider. There
is not an element hidden in there that says, “why did Ms. Boos
set this hotel room on fire? What was her motive in starting
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this hotel room on fire?” I don’t need to prove that to you.
That is not an element for you to consider.

As I said with intent, we rarely see into the minds of people.
People every single day commit crimes that make no sense and
have very little reason behind it. They still do it. And I don’t
need to prove [] that to you why she did it. I just need to prove
to you that she did it, and she did.

The prosecutor did not misstate the law by noting that motive is not an element of
first-degree arson. See Zornes v. State, 880 N.W.2d 363, 372 (2016) (holding that a
prosecutor did not commit misconduct by arguing that “it would be nice to know a motive
for these brutal homicides”). The prosecutor’s statement does not constitute plain error.
2. The prosecutor’s comments about defense counsel’s presentation
of defenses do not constitute plain error.

Boos argues that the prosecutor committed plain error by commenting on defense
counsel’s conflicting theories during closing arguments:
STATE: Now, the defense also might bring this up, “well there
could have been somebody else who did it.” But Ms. Boos
didn’t act intentionally if it did happen. So it is this “or”
argument, the alternative. So it’s either another person did it
that we never capture or Ms. Boos didn’t act intentionally.
Which one is it, folks? Because you can’t have it both ways.
This isn’t fast food, you got to pick one. And the evidence is
this was an intentional act. The evidence is that this was only
one person, and that’s Ms. Boos.

The prosecutor’s comments, here, do not rise to the level of belittlement or attacking
defense counsel’s credibility. The argument was a permissible statement that the defense
theories lacked merit. See McDaniel, 777 N.W.2d at 752 (“[A] prosecutor can argue that
a particular defense has no merit.”); see also State v. Martin, 773 N.W.2d 89, 108
(Minn. 2009) (“A prosecutor may argue that there is no merit to a particular defense.”).
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3. The prosecutor’s elicitation of profile evidence did not constitute
plain error.

Boos argues that the prosecutor committed plain error by eliciting improper profile
evidence. A prosecutor may not elicit impermissible testimony that a defendant fits the
profile of a certain type of criminal. See, e.g., State v. Williams, 525 N.W.2d 538, 545-48
(Minn. 1994). Boos argues the prosecutor did just that:
STATE: Will you also document the people that are at the
scene?

DETECTIVE: Yep. So especially if there’s different clues in
the radio communications of a suspicious fire or multiple areas
of origin, that’s kind of making the hairs on my neck go up.
Okay, I’d better take a few pictures outside and see if there’s
people kind of standing around in the background. Some fire
setters are known to stay in the area and kind of watch. They
get the excitement from just the whole excitement of the
incident itself.

STATE: So there’s, from your knowledge, people who start
fires will either return or stay at the scene of the fire they set?

DETECTIVE: Correct.

STATE: Even though they set that fire?

DETECTIVE: Correct, yeah.

Boos also argues that the state exacerbated the error during closing argument when
summarizing the testimony:
STATE: . . . the fire inspector [told] you that it is common
amongst arsonist[s] or firebugs to go back and stay at the scene
to watch what they’ve done, to see what they’ve done.

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The state argues that the testimony and closing argument were appropriate because
defense counsel opened the door to such evidence when counsel questioned why Boos
would remain at the scene during the opening statement at trial:
DEFENSE COUNSEL: They already got a statement from
Ms. Boos. They already had a feeling this fire was
intentionally set when that officer decided to let my client go,
and even then, Ms. Boos sticks around. And why does she
stick around? Because that’s where she’s staying. That’s
where she’s living at the moment.

And so, again, if this is a person who just committed a very
serious arson, why hang around? Why talk to the police? Why
wait to get caught? Well, the reason she stuck around is
because she didn’t do this. It’s because she’s innocent.

The parties cite no caselaw, and we have unearthed none, addressing whether the
state may admit profile evidence to prove guilt when a defense counsel “open s the door”
during opening statements. Because there is no caselaw that holds these circumstances
constitute misconduct, we conclude that there is no plain error. See State v. Webster,
894 N.W.2d 782, 787 (Minn. 2017) (concluding no plain error because the supreme court
had not “clearly” ruled that un-objected-to appellate issue constituted an error).
4. The prosecutor’s statements about its burden of proof did not
constitute plain error.

Boos argues that the prosecutor committed plain error by misstating the state’s
burden of proof during closing argument. Boos identifies the following portion of the
prosecutor’s closing argument:
STATE: I want to talk to you about proof beyond a reasonable
doubt. Now, at the start of the case, you heard the defense
mention extraordinary claims take extraordinary evidence.
That’s not the standard in the State of Minnesota. It’s not the
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standard in the United States. The standard is proof beyond a
reasonable doubt. It’s whether there is sufficient evidence to
prove each element beyond a reasonable doubt, not
extraordinary evidence, regular evidence, the same evidence
you heard in this case.

You also heard me in voir dire and my opening talk about
common sense, because you all raised your hand and said you
have good common sense. I asked you in my opening to keep
that common sense in mind when you listen to the testimony
and you heard the evidence. I’m asking you again now to rely
on your common sense in your good reason when you go back
to that jury deliberation room, because proof beyond a
reasonable doubt is doubt based on reason and common sense.
It is not doubt that is fanciful or capricious. Use that common
sense.

On rebuttal, the state continued:

STATE: Let’s talk about a few things, ladies and gentlemen.
Let’s talk about proof beyond a reasonable doubt quick. We
talked about how high a burden this is, highest burden in the
world. Guess what? People are found guilty every single day
in courthouses in every single state across this country. It
happens right here in this building on the 24 floors that occupy
it. It’s not that hard to do, ladies and gentlemen, if you use
your common sense and reason and if the State has proven it
beyond a reasonable doubt.

This is not some extraordinarily difficult task. It happens all
the time, every day.

These statements are similar to those made in Martin. In Martin, for example, the
Minnesota Supreme Court concluded that a prosecutor does not misstate or shift the burden
of proof by arguing that “even with the presumption of innocence, many people are still
convicted and that proof beyond a reasonable doubt was ‘a stiff burden.’” Martin,
773 N.W.2d at 105. The supreme court held that the statements were “a legitimate
explanation of the State’s burden.” Id.; see also McDaniel, 777 N.W.2d at 751 (concluding
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that prosecutor’s argument that other defendants have been found guilty was not improper
as it suggested “to the jury that the State’s burden is not an impossible one”). We conclude
that the prosecutor’s similar closing arguments, here, do not constitute plain error.
II. Boos’ Pro Se Supplemental Arguments
Boos asserts that police took her cell phone when they arrested her, which
she alleges contained exculpatory evidence. Boos argues that the state violated
Brady v. Maryland, 373 U.S. 83 (1963), by not disclosing her cell phone.
Boos did not raise this argument to the district court. A “party may not raise issues
for the first time on appeal.” Taylor v. State, 910 N.W.2d 35, 38 (Minn. 2018) (quotation
omitted). As such, Boos has forfeited appellate review of that issue. Id.
Even if we reviewed the issue for plain error, we conclude that the record does not
support any Brady violations by the state. To prove a Brady violation, Boos must establish
that: (1) the evidence was favorable to her because it would have been either exculpatory
or impeaching , (2) the evidence was intentionally, or otherwise, suppressed by the
prosecution, and (3) the evidence was material, i.e., the absence of the evidence caused
prejudice to Boos. Walen v. State, 777 N.W.2d 213, 216 (Minn. 2010) (citation omitted).
We discern no Brady violation. There is nothing in this record to show that the
contents of Boos’ phone were either exculpatory or impeaching. Most importantly, there
is nothing in the record to suggest that the state reviewed the contents of Boos’ phone,
discovered exculpatory or impeaching contents, and then suppressed the evidence. As
such, we conclude that Boos’ argument does not satisfy the elements under Brady.
Affirmed.