Cited by

See Nissalke, d at 106-07 (determining no prosecutorial misconduct occurred when comments were on the absence of evidence to support the defense’s theories); (“Prosecutors are allowed to argue that there is no merit to the specific defense raised by the defendant.”); (determining a prosecutor’s remark concerning the lack of evidence and challenging one of the defense’s 9 rebuttal theories did not shift the burden of proof).

17 But unlike the concurrence, the concurrence/dissent does not resolve 16 In discussing the inconsistent statements Firkus made during his police interview, the concurrence/

However, “a prosecutor’s comment on the lack of evidence supporting a defense theory does not improperly shift the burden.” Id.; (“The prosecutor’s remarks concerning the lack of, or paucity of, evidence of vandalism, then, is viewed as not shifting burden to the defense, but rather as challenging one of the defense’s rebuttal theories.”).

“The prosecutor may not shift the burden of proof to the accused by commenting about his failure to call witnesses or to present evidence.”

Appellate courts must consider the facts and “legitimate inferences” drawn from those facts and determine if “a jury could reasonably conclude that the defendant was guilty of the offense charged.” d 656, 661 (Minn. 1986) (quotation omitted).

However, “corrective instructions by the court can cure prosecutorial error.” McDaniel, d at 750; (stating that the trial court’s reiteration of the correct burden of proof cured any improper comments by the prosecutor).

In some instances, however, “corrective instructions by the court can cure prosecutorial error.” McDaniel, d at 750; accord State v. Race, 15 (stating that the district court’s reiteration of the correct burden of proof cured prosecutor’s improper comments).

at 750; (stating that the trial court’s reiteration of the correct burden of proof cured any improper comments by the prosecutor).

See, (when the defense’s theory was that a life raft had been 5 vandalized, “[t]he prosecutor’s remarks concerning the lack of, or paucity of, evidence of vandalism, then, is viewed as not shifting [the] burden to the defense, but rather as challenging one of the defense’s rebuttal theories”); State v

(concluding that the allegedly improper statements by the prosecutor were mitigated because the “trial court, in its final instructions, reiterated that the burden of proving guilt rests with the state and that the defendant has no burden of proving innocence”).

“The prosecutor may not shift the burden of proof to the accused by commenting about his failure to call witnesses or to present evidence.”

(quotation omitted) (“Significant inconsistencies in [defendant]’s statements to authorities substantially diminished the credibility of his [exculpatory] assertion .

Although the state has the burden to prove all elements of the offense, the 8 prosecution is not required to make a colorless argument, d 123, 127 (Minn. 1998).

But “a remark by a prosecutor on the lack of evidence regarding the defense’s theory [does] not shift the burden of proof to the defense.” ().

7 A. When we review whether the evidence is sufficient to sustain a conviction, we determine “ ‘whether, under the facts in the record and any legitimate inferences that can be drawn from them, a jury could reasonably conclude that the defendant was guilty of the offense charged.’ ” ().

This stricter standard, though, “still recognizes a jury is in the best position to evaluate the circumstantial evidence surrounding the crime * * *.”

A fact-finder is in the best position to evaluate the circumstantial evidence surrounding the crime, and a verdict based on circumstantial evidence is entitled to “due deference.”

(“Counsel’s choice of strategy in closing argument should not be ‘second-guessed.’ ”); (appellant not denied effective assistance of counsel merely because counsel waives an opening statement).

E.g., Bias, d at 484-86 (deferring to the jury’s presumed credibility evaluations and upholding a conviction for first-degree felony murder based on circumstantial evidence)