This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).






State of Minnesota,





David Heil,




Filed April 15, 2003


Randall, Judge



Hennepin County District Court

File No.  01076701



Mike Hatch, Minnesota Attorney General, 525 Park Street, Suite 500, St. Paul, MN  55103; and


Amy Klobuchar, Hennepin County Attorney, Jean E Burdorf, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)


John M. Stuart, State Public Defender, Davi E. Axelson, Assistant Public Defender, 2221 University Avenue Southeast, Suite 415, Minneapolis, MN  55414 (for appellant)



            Considered and decided by Shumaker, Presiding Judge, Randall, Judge, and Wright, Judge.


U N P U B L I S H E D   O P I N I O N


            In this appeal from a conviction for theft of a motor vehicle, appellant David Heil argues he was prejudiced at trial because the prosecutor improperly shifted the burden of proof during the rebuttal closing argument.  Because we find no error, we affirm.


            On September 12, 2001, Bloomington Police Officer Damon Bitney testified that he was on patrol in area 2 of Bloomington between 11:00 p.m. and 7:00 a.m.  At approximately 12:30 a.m., while driving south on Lyndale Avenue near 86th Street, Bitney noticed a white male backing a four-door 1989 Pontiac Sunbird into a parking space.  As he proceeded south on Lyndale, Bitney slowed down the patrol car and observed the person through his driver’s side window.  Bitney then lost sight of the person for two to four seconds.  Subsequently, Bitney completed a U-turn, and headed towards the car to further observe the individual.  As he was turning, Bitney watched the person exit the car from the driver’s side and shut the door.  Bitney then drove toward the parked car and, in the process, was able to observe the person’s face.  Although Bitney was approximately 20 to 30 feet away, he noticed that the person was wearing a T-shirt, dark colored pants (possibly blue jeans), and had a blue jacket or sweatshirt in his hands.

            The driver of the car proceeded to walk southbound on the grass next to the sidewalk on Lyndale Avenue.  In the meantime, Bitney drove past the parked car and typed the license plate number into his squad car’s laptop computer.  Approximately five seconds later, as Bitney approached the parking lot exit, he received a signal from the computer that the parked car was stolen.  Almost simultaneously, the person turned around and looked in Bitney’s direction, and then began to run from Bitney.  In response, Bitney contacted additional officers and informed them of the situation. 

            Officer James E. Ousley responded to the transmission and met Bitney at the fence where Bitney had last seen the suspect.  Additional Bloomington Police officers arrived shortly thereafter, and a perimeter was established around the area.  Bitney and Ousley then followed Ousley’s canine partner in an attempt to locate the fleeing suspect.  The officers followed the dog through a trailer park and towards a construction equipment lot.  Ousley removed the dog from the leash and the dog immediately located the suspect underneath a dump truck.  Bitney recognized the man as the same person he had observed exiting the stolen vehicle, and proceeded to apprehend the appellant.

             In contrast, appellant testified that on September 11, 2001, he went to the Schooner bar in South Minneapolis.  At the Schooner, appellant consumed a few beers and played pool with a man named Scott.  At some point during the evening, the two agreed to meet appellant’s friend at a SuperAmerica near 86th Avenue and Lyndale Avenue in order to purchase some marijuana.  Scott drove appellant to the SuperAmerica, dropped off appellant, and proceeded to park the car across the street.  After appellant purchased a bag of marijuana from his friend, appellant ran across the street to the parking lot where Scott had parked the car.  As appellant approached the parked car, Scott yelled “the cops,” jumped out of the car, and ran between two buildings.  Appellant then walked away from the car.  When he noticed that the squad car was approaching him, appellant fled and dumped the marijuana.  Appellant hid underneath a dump truck for about 10 to 15 minutes until he was finally apprehended by Bitney and Ousley.  Although appellant admitted at trial that he was a passenger in the stolen car and that he knew it was stolen, he denied ever driving the car.

            During closing arguments, the prosecutor ended her rebuttal closing argument by telling the jury, “the [Appellant] has not raised a reasonable doubt here in this matter, and the State has proven its case beyond a reasonable doubt.”  The district court overruled the defense’s objection to the prosecutor’s closing arguments, denying appellant’s motion for a new trial.  A jury found appellant guilty of theft of a motor vehicle.  Appellant now appeals, arguing that he was denied a fair trial because the prosecutor committed prosecutorial misconduct by improperly shifting the burden of proof during rebuttal.   


            A district court’s denial of a new trial motion based on alleged prosecutorial misconduct will be reversed only “when the misconduct, considered in the context of the trial as a whole, was so serious and prejudicial that the defendant’s constitutional right to a fair trial was impaired.”  State v. Johnson, 616 N.W.2d 720, 727-28 (Minn. 2000) (citations omitted).  The test for determining whether prosecutorial misconduct was harmless depends partly on the type of misconduct.  State v. Powers, 654 N.W.2d 667, 678 (Minn. 2003).  For serious prosecutorial misconduct, “the misconduct is harmless beyond a reasonable doubt if the verdict rendered was surely unattributable to the error.” State v. Hunt, 615 N.W.2d 294, 302 (Minn. 2000).  For less serious misconduct, the standard is "whether the misconduct likely played a substantial part in influencing the jury to convict." Id.  With respect to claims of prosecutorial misconduct arising out of closing argument, we consider the closing argument as a whole.  State v. Walsh, 495 N.W.2d 602, 607 (Minn. 1993).           

            Appellant argues that the prosecutor’s comments improperly shifted the burden of proof and denied him a fair trial.  Misstatements of the burden of proof are highly improper and would, if demonstrated, constitute prosecutorial misconduct.  State v. Coleman, 373 N.W.2d 777, 782 (Minn. 1985).  It is improper for a prosecutor to comment on a defendant's failure to contradict testimony.  State v. Porter, 526 N.W.2d 359, 365 (Minn. 1995).  Thus, a prosecutor may "specifically argue that there was no merit to the defense," but the prosecutor is not allowed to belittle the defense.  State v. Williams, 525 N.W.2d 538, 549 (Minn. 1994).  Having said that, a prosecutor may challenge a defendant's rebuttal theory without shifting the burden of proof to the defense.  State v. Race, 383 N.W.2d 656, 664 (Minn. 1986).  But it must be done carefully.  In State v. Stepp, No.  C3-96-1237, 1997 WL 132969 at *1 (Minn. App. March 25, 1997), a case similar to the case at hand, the defendant alleged he was denied a fair trial because the prosecution misstated the state’s burden of proof during closing arguments.  Specifically, the prosecutor stated:

Ten witnesses for defense.  Are you satisfied with their explanation as to who done it?  Did it create reasonable doubt? I would respectfully request, ladies and gentlemen of the jury, that the testimony of the defense witnesses did not create that reasonable doubt.


Id. at *2.  Although the court was troubled by the improper shifting of the burden of proof, the court noted that the prosecution later correctly stated the burden of proof.  Id.  Further, the court stated that the confusion was corrected by: (1) the defendant’s attorney emphasizing the appropriate burden of proof in his closing argument; and (2) the trial court’s proper instructions.  Id.  Therefore, viewing the prosecutor’s statements in light of the whole record, the court held the defendant was not denied a fair trial.  Id. 

            We find Stepp persuasive.  It is settled that the closing argument as a whole must be examined as a whole when determining whether it provides a basis for reversal.  State v. Daniels, 332 N.W.2d 172, 180 (Minn. 1983).  On our facts, we do not find obvious error, but as in Stepp, we are troubled by an inference that the burden of proof improperly shifted from the state to the defendant. 

            As a note of caution, in its closing argument, the state is better off steering clear of attempting to fine-tune a defendant’s right to a trial based on proof beyond a reasonable doubt.  Defendants have no duty to affirmatively rebut the state's case.  It seems whenever the state's final argument spends a long time trying to define a defendant's right to proof beyond a reasonable doubt before a guilty verdict can be returned, the state steers dangerously close to the right of inferring that once the state's case is in, and not affirmatively rebutted, the presumptive has disappeared.  That is a constitutionally impermissible argument.  The state knows full well that the district court will define proof beyond a reasonable doubt at least once, and normally more than once, in any criminal trial.  The state is assured of that.   

            Here, the prosecutor ended the statement at issue by expressing the proper burden of proof.  The district court did properly instruct the jury on the appropriate burden of proof.  We conclude that appellant was not denied a fair trial.