State of Minnesota v. Eddie Lee Harper

STATE OF MINNESOTA
IN COURT OF APPEALS
A25-1443

State of Minnesota,
Respondent,

vs.

Eddie Lee Harper,
Appellant.

Filed August 31, 2026
Reversed and remanded
Ross, Judge

Hennepin County District Court
File No. 27-CR-24-28222

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, Jenna Yauch-Erickson, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Ross, Presiding Judge; Larson, Judge; and Beane, Judge.

SYLLABUS

Domestic assault that results from a defendant’s act intending to cause fear under

Minnesota Statutes section 609.2242 (2024), and domestic assault arising from a

defendant’s intentional act inflicting harm under the same statute, are different crimes and

not merely different means of committing the same crime, and jurors therefore may find a

defendant guilty of either crime only on a unanimous verdict.

OPINION

ROSS, Judge

The prosecutor at Eddie Lee Harper’s trial for felony domestic assault told the jurors

that they may find Harper guilty even if they do not unanimously choose between whether

he committed the assault by inflicting bodily harm or by intentionally causing fear of

imminent bodily harm. Harper objected, asserting that the prosecutor misstated the law,

but the district court overruled the objection in the jury’s presence. The jury found Harper

guilty. Because the prosecutor misstated the law on jury unanimity and the state has not

met its burden to prove that the misstatement was harmless beyond a reasonable doubt, we

reverse Harper’s conviction and remand for a new trial.

FACTS

Alleging that Eddie Lee Harper brandished a knife at his fiancée, threatened to “fuck

[her] up,” threw her to the ground, and slapped her face, the state charged Harper with a

single count of felony domestic assault in violation of Minnesota Statutes section 609.2242,

subdivision 4 (2024). We will call his fiancée “Connie,” a name we have randomly chosen

in the interest of protecting her privacy.

The state supported these allegations with evidence at Harper’s trial, for which

Connie was subpoenaed to testify but did not appear. It introduced a recording of Connie’s

9-1-1 call in which she identified “Eddie Lee Harper” as her attacker. It showed body-

camera footage of Connie telling a responding Minneapolis police officer that “Eddie”

threw her down in the living room, struck her, and threw her down again in the kitchen,

causing her to hit her face on the counter and drawers. Connie reported that, before Harper

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threw her down, he showed her one of her kitchen knives and told her, “I’m gonna fuck

you up.” The footage includes Connie giving the responding officers Harper’s full name,

date of birth, and a picture of him. The state also introduced photographs depicting

Connie’s injuries, including swelling under her eye, a broken fingernail, blood under her

ear, and a lump above her eyebrow. A paramedic opined that the “swelling and shininess”

of Connie’s injuries indicated that they were very likely “fresh.” The state played a

recording of Harper’s telephone call to Connie from jail, during which Harper urged

Connie not to cooperate with the state’s investigation.

The state also introduced evidence of Connie’s communication with a victim-

services specialist. The day after Harper’s call from jail, Connie told the specialist that she

had not made the report against Harper, that she wanted the charges dropped, that the

incident did not happen, that Harper is a good person, and that she was pregnant with

Harper’s child. Connie then emailed the specialist, insisting that she was “NOT a victim”

and that Harper was jailed because of a “fake” matter.

The district court’s jury instructions defined the elements of domestic assault and

explained that Harper was guilty if the jury found either that he “committed an act with

intent to cause [Connie] to fear immediate harm or death” or “intentionally inflicted bodily

harm upon [Connie].” And the district court told the jurors that they could find Harper

guilty only if they did so unanimously.

The prosecutor elaborated about unanimity in the segment of her closing argument

that is at the center of this appeal. She first told the jurors that “there are two ways to prove

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domestic assault under Minnesota law.” Then she advised that they did not need to decide

unanimously which of the two occurred:

You as a jury don’t have to be unanimous as to which
you believe occurred or has been proven beyond a reasonable
doubt. As it applies to this case, half of you can believe that the
defendant intentionally hit [Connie] and caused her bodily
harm. The other half of you can believe that he only intended
to cause her fear. Well, that in itself proves the defendant
guilty.

You don’t all have to agree to which one occurred. You
only have to be unanimous in the fact that one or the other was
present and that it was proved beyond a reasonable doubt.

The prosecutor concluded by arguing both theories: domestic assault based on harm and

domestic assault based on fear. After the argument and in the jury’s presence, Harper

objected to the prosecutor’s comments on jury unanimity as an “improper argument of

law.” The district court overruled the objection, also in the jury’s presence.

The jury found Harper guilty of felony domestic assault. And the district court

sentenced him to serve 27 months in prison. Harper appeals.

ISSUE

Did the prosecutor’s closing argument constitute reversible misconduct by

misstating the law on jury unanimity?

ANALYSIS

Harper argues that the prosecutor committed prejudicial misconduct by misstating

the law. Because Harper objected at trial, we review the alleged misconduct using “a two-

tiered harmless-error test under which the standard of review varies based on the

seriousness of the misconduct.” State v. Whitson, 876 N.W.2d 297, 304 (Minn. 2016).

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Because the alleged misstatement of law concerns jury unanimity, it involves Harper’s

constitutional due-process rights. State v. Yang, ___ N.W.3d ___, ___, No. A24-0228, 2026

WL 2104912, at *5 (Minn. July 22, 2026). Because errors implicating constitutional rights

are severe, we will apply the more stringent standard of review and order a new trial if we

determine that an error occurred and that it was not “harmless beyond a reasonable doubt.”

See State v. Davis, 820 N.W.2d 525, 533 (Minn. 2012); see also Whitson, 876 N.W.2d at

304. Under this standard, the burden shifts to the state to prove that the error was harmless.

State v. Conklin, 444 N.W.2d 268, 275 (Minn. 1989). For the following reasons, we hold

that the prosecutor misstated the law on jury unanimity and that the state has not met its

burden of proving that the error was harmless beyond a reasonable doubt.

A. The prosecutor’s statement on jury unanimity misstated the law.

Harper contends that the prosecutor misstated the law on jury unanimity. Criminal

jury verdicts in Minnesota must be unanimous. Minn. R. Crim. P. 26.01, subd. 1(5); State

v. Pendleton, 725 N.W.2d 717, 730 (Minn. 2007). This unanimity requirement allows a

jury to find a defendant guilty only when “it unanimously finds that the government has

proved each element of the offense.” State v. Ihle, 640 N.W.2d 910, 918 (Minn. 2002). But

the jury “need not always decide unanimously which of several possible means the

defendant used to commit the offense in order to conclude that an element has been proved

beyond a reasonable doubt.” Id. The offense of domestic assault allows for a conviction

based on either an intentional act that causes harm or an act intended to cause fear:

Whoever does any of the following against a family or
household member . . . commits an assault and is guilty of a
misdemeanor: (1) commits an act with intent to cause fear in

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another of immediate bodily harm or death; or (2) intentionally
inflicts or attempts to inflict bodily harm upon another.

Minn. Stat. § 609.2242, subd. 1 (2024). Because Harper had been convicted of two prior

qualified domestic-violence-related offenses within the preceding ten years, he was

charged with felony-level domestic assault under Minnesota Statutes section 609.2242,

subdivision 4, rather than misdemeanor domestic assault. The same statutory language

applies. Id., subd. 4. Harper’s contention raises the question of whether assault-harm and

assault-fear are means to commit domestic assault or whether they are instead separate

offenses consisting of different elements. This presents a question of law, and we therefore

review the issue de novo. State v. Dorn, 887 N.W.2d 826, 830 (Minn. 2016).

The state would have us decide the issue by relying on our decision in State v.

Dalbec, 789 N.W.2d 508 (Minn. App. 2010), rev. denied (Minn. Dec. 22, 2010). We held

in Dalbec that “assault can be committed in any of three ways,” specifically, assault-fear,

assault-harm, or assault-attempt. 789 N.W.2d at 512–13. Under that holding, assault-fear

and assault-harm are alternative means of committing domestic assault and would not

require jury unanimity as to which of the two the defendant committed. Id. at 513. The

state is correct that, if our Dalbec holding remains good law, the prosecutor here accurately

summarized the jury’s duty in her closing argument, and we should affirm.

But the state is incorrect; our Dalbec holding has been indirectly overruled by the

supreme court. About 16 months after Dalbec, the supreme court decided State v. Fleck,

ruling that assault-harm and assault-fear are separate “crimes” or “offenses” involving

different intent elements. 810 N.W.2d 303, 306, 309–10 (Minn. 2012). The Fleck court

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held that assault-harm is a general-intent crime with a mens rea element requiring proof

only that a defendant’s physical act was voluntary. Id. at 309. By contrast, the Fleck court

held that assault-fear is a specific-intent crime requiring proof of the defendant’s specific

intent to cause the victim to fear imminent harm. Id. That these offenses involve different

elements “carries certain legal consequences,” one of which is that each distinct element

must be proved beyond a reasonable doubt. Richardson v. United States, 526 U.S. 813, 817

(1999). Fleck nowhere mentions our Dalbec decision. But it necessarily follows that

assault-fear and assault-harm cannot constitute both alternative means to commit the crime

of assault and separate assault crimes consisting of different elements.

We have on several occasions questioned in precedential and nonprecedential

opinions whether Fleck overruled Dalbec, but never under circumstances that required us

to decide the answer. See, e.g., State v. Collins, 24 N.W.3d 693, 707–08 (Minn. App. 2025),

rev. denied (Minn. Sept. 17, 2025); State v. Patzold, 917 N.W.2d 798, 811–12 (Minn. App.

2018), rev. denied (Minn. Nov. 27, 2018); State v. Evans, No. A13-2256, 2014 WL

7011130, at *2–3 (Minn. App. Dec. 15, 2014), rev. granted (Minn. Feb. 25, 2015) and ord.

granting rev. vacated (Minn. Aug. 11, 2015). We have observed that Fleck “implicitly

call[ed] into question” but did not “expressly overrul[e] Dalbec’s holding.” Collins, 24

N.W.3d at 708; see also State v. Moallin, No. A14-0329, 2014 WL 7237037, at *6 (Minn.

App. Dec. 22, 2014) (Ross, J., dissenting) (“Fleck at least undermines our rationale in

Dalbec, and it may implicitly overrule it.”), rev. granted (Minn. Feb. 25, 2015) and ord.

granting rev. vacated (Minn. Aug. 11, 2015). We have recognized that it has remained “an

open question” whether assault-harm and assault-fear are alternative means to commit the

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same offense or are separate offenses. State v. Dow, No. A22-1779, 2023 WL 7119124, at

*2 (Minn. App. Oct. 30, 2023), rev. denied (Minn. Jan. 16, 2024). Today we answer the

question: Fleck, and two other supreme court cases decided after our Dalbec decision—

Dorn and State v. Oliver, 28 N.W.3d 445 (Minn. 2025)—inform us that Dalbec no longer

controls.

Again, the Fleck decision characterized assault-harm and assault-fear not merely as

means, but as “crimes” and “offenses.” 810 N.W.2d at 306–08. Then in Dorn, the supreme

court, citing Fleck, stated that assault-harm had “mens rea and actus reus elements.” 887

N.W.2d at 831 (emphasis added). Unlike the means the defendant employed, on which a

jury need not unanimously agree, whether all elements are proved requires jury unanimity.

Richardson, 526 U.S. at 817. And finally, in Oliver, the supreme court again interpreted

assault-harm and assault-attempt as “crimes” and “offenses.” 28 N.W.3d at 453–55. These

cases together lead us to conclude that our Dalbec holding has been implicitly overruled.

We acknowledge that the Fleck decision interpreted assault-harm and assault-fear

under the general definition of “assault” in Minnesota Statutes section 609.02, subdivision

10 (2010), 810 N.W.2d at 308, and that this case instead involves domestic-assault-harm

and domestic-assault-fear as defined in Minnesota Statutes section 609.2242, subdivision

1. But it is self-evident that when the legislature made domestic assault a separate category

of assault in 1995, it incorporated the extant definition of assault from the general

definition. See 1995 Minn. Laws ch. 259, art. 3, § 15, at 2783 (codified at Minn. Stat.

§ 609.2242, subd. 1). Because both definitions use the same material terms to distinguish

and define assault-harm and assault-fear, the Fleck court’s reasoning applies to domestic

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assault in the same way it applies to assault generally. And domestic assault based on an

offender’s intentional actions causing bodily harm under Minnesota Statutes section

609.2242, subdivision 1(2), is therefore a different crime than domestic assault based on

an offender’s conduct specifically intended to cause fear under Minnesota Statutes section

609.2242, subdivision 1(1). In sum, we hold that domestic assault that results from a

defendant’s act intending to cause fear and domestic assault arising from a defendant’s

intentional act inflicting harm are different crimes and not merely different means of

committing the same crime, and that jurors therefore may not find a defendant guilty of

either one unless it does so unanimously.

We are not persuaded otherwise by the state’s reliance on Schad v. Arizona, 501

U.S. 624 (1991). In Schad, a plurality of the United States Supreme Court reasoned that

states may “define different . . . states of mind . . . as merely alternative means of

committing a single offense.” 501 U.S. at 632. In its recent decision in State v. Keyes, the

Minnesota Supreme Court seems to have adopted Schad’s unanimity reasoning. ___

N.W.3d ___, ___, No. A23-1400, 2026 WL 2053029, at *7–8, *15 (Minn. July 15, 2026).

The Schad plurality recognized that it is up to state law to determine whether variations in

a defendant’s mental state should be framed as merely different means of committing one

offense or as elements of different offenses. 501 U.S. at 632. And Fleck necessarily implies

that the Minnesota legislature did exactly that when it comes to assault-harm and assault-

fear. 810 N.W.2d at 309–10. They are different crimes because they involve different

mental-state elements. See id. at 309; see also Dorn, 887 N.W.2d at 831. Schad supports

our conclusion.

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Our holding today that assault-harm and assault-fear are different crimes leads us to

conclude that the prosecutor’s closing statements materially misstated the law. And

“[p]rosecutors may not materially misstate the law in closing arguments.” State v. Fravel,

34 N.W.3d 309, 330 (Minn. 2026). It is axiomatic 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). Because assault-fear and

assault-harm are separate crimes requiring jury unanimity, the prosecutor misstated the law

by advising the jury that it need not unanimously determine which of the two Harper

committed. She therefore diluted the state’s burden of proof and committed misconduct.

Because we hold that the prosecutor committed an error, the burden shifts to the state to

prove that the error was harmless beyond a reasonable doubt.

B. The state did not meet its burden to prove that the error was harmless
beyond a reasonable doubt.

The state maintains that it met its burden to prove that the error was harmless beyond

a reasonable doubt. The serious, unobjected-to error was not harmless beyond a reasonable

doubt unless the guilty verdict was surely unattributable to it. State v. Bigbear, 10 N.W.3d

48, 54 (Minn. 2024). To assess whether Harper was prejudiced, we consider factors such

as the strength of the evidence, how the error was presented, whether the defense could

effectively counter the error, the persuasive value of the error, and whether the error

occurred in closing argument. Id.; cf. State v. Courtney, 696 N.W.2d 73, 80 (Minn. 2005).

On the first factor, we have no difficulty agreeing that the state had a strong case

against Harper as to assault-harm. It presented photographic evidence of Connie’s injuries,

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testimony from the responding officer and paramedic about the recentness of Connie’s

injuries, and a 9-1-1 call and body-camera footage in which Connie repeatedly identifies

Harper as her assailant. And the state presented the recording of Harper’s jail call with

Connie, the substance of which would both imply Harper’s consciousness of guilt in his

urging her not to participate in the investigation and explain Connie’s absence from trial.

But contrary to the state’s contention that the strength of the evidence has

“eliminated any reasonable doubt about the assault-harm theory” and therefore that “[a]ny

error in the prosecutor’s statement about unanimity was harmless,” the strength of the

evidence cannot by itself resolve the issue of whether the guilty verdict is surely

unattributable to the error. Put differently, the fact that the state’s evidence is strong enough

to support the guilty verdict does not by itself mitigate a prosecutor’s misconduct. State v.

Mayhorn, 720 N.W.2d 776, 791 (Minn. 2006). This is because “even the strongest evidence

of guilt does not eliminate a defendant’s right to a fair trial.” Id. The record demonstrates

that the evidence strongly supports Harper’s guilt based on his having intentionally caused

Connie harm when he threw her down, but it also strongly supports Harper’s guilt based

on his having intended to cause her to fear when he brandished the knife. We have no way

of knowing, and no reason to suppose, that the jurors unanimously determined Harper’s

guilt on either offense especially because of the erroneous argument. The strength of the

evidence cannot prove the error harmless beyond a reasonable doubt.

Particularly significant is the manner the error was presented at Harper’s trial, given

the error’s nature. The district court’s actual instruction on unanimity was at best

ambiguous in the context of the charges. The prosecutor then gave the misleading half-is-

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enough elaboration on the district court’s instruction. And the district court overruled the

objection openly before the jury. This bears sharply on the factor of whether Harper was

able to effectively counter the misstatement of law. He was not. Although the “district court

is in the best position to attempt to remedy the effects of [any] misconduct,” such as by

offering curative instructions, State v. Ramey, 721 N.W.2d 294, 299 (Minn. 2006), no

curative instruction followed the prosecutor’s misstatement of law here. The error went to

the essence of the jury’s decision-making role, misdirecting them from the unanimity

requirement that sits at the heart of Harper’s right to due process in a Minnesota criminal

trial. It misaligned the deliberative fulcrum by misadvising jurors how to come to their

verdict. Where, as here, the error “was aimed at having an impact on the verdict, we cannot

say that the verdict was surely unattributable to the error.” State v. Litzau, 650 N.W.2d 177,

184 (Minn. 2002). Intensifying the error’s effect, the jurors might have reasonably inferred

that the district court endorsed it based on the sequence of events: They heard the judge

instruct that a unanimous verdict is required; they heard the prosecutor invite an erroneous

application of that instruction; they heard the defense attorney object to the invitation as a

misstatement of law; and then they heard the district court overrule that objection. Despite

the propriety of the district court’s general instruction that the court rather than the lawyers

defines the law, this sequence of events related to the misstatement defeats the state’s

assertion that the misstatement was harmless beyond a reasonable doubt.

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DECISION

The prosecutor misstated the law on jury unanimity. The state has failed to prove

that the error was harmless beyond a reasonable doubt. We therefore reverse Harper’s

conviction of felony domestic assault and remand for a new trial.

Reversed and remanded.

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