This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).







State of Minnesota,





Beth Ann Rademacher,




Filed January 31, 2006

Crippen, Judge


Hennepin County District Court

File No. 03048608


Mike Hatch, Attorney General, Thomas R. Ragatz, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101; and


Amy Klobuchar, Hennepin County Attorney, Donna J. Wolfson, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN  55487 (for respondent)


John M. Stuart, State Public Defender, Davi E. Axelson, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for appellant)


            Considered and decided by Klaphake, Presiding Judge, Halbrooks, Judge, and Crippen, Judge.

U N P U B L I S H E D   O P I N I O N


Appellant Beth Rademacher, convicted of criminal vehicular homicide, argues that the prosecutor committed prejudicial misconduct during closing argument by diminishing the state’s burden of proof and by suggesting, in a case in which appellant did not testify, that appellant had the burden to present evidence.  Because we conclude that the prosecutor did not commit prejudicial misconduct, we affirm.



            In April 2003, appellant was involved in a car accident that resulted in the death of Marvin Lindsey.  The accident occurred after appellant’s driving angered another driver and they exchanged words and proceeded to engage in a game of “chicken,” speeding and changing lanes while proceeding in the same direction.  Eventually, the other driver forced appellant onto the shoulder, causing her to lose control of her car.  The car flipped over and Lindsey, appellant’s front-seat passenger, was thrown into a ditch.  Two children were in the back seat.

A jury found appellant guilty of criminal vehicular homicide and child endangerment.  This appeal followed.      



The district court has broad discretion in determining whether a prosecutor committed prejudicial misconduct during closing argument.  State v. Robinson, 604 N.W.2d 355, 361 (Minn. 2000).  A reviewing court will reverse a conviction on the ground of prosecutorial misconduct only when the misconduct, viewed in light of the entire record, is of such a serious and prejudicial nature that a defendant’s right to a fair trial was impaired.  Id.  In cases involving less-serious prosecutorial misconduct, a reviewing court will reverse only if the misconduct substantially influenced the jury to convict.  State v. Hunt, 615 N.W.2d 294, 302 (Minn. 2000).

1.  Shifting Burden

Misstatements of the burden of proof constitute misconduct.  Id.  But comments on the adequacy of the evidence and the credibility of witnesses who testify for the defendant are permissible.  See, e.g., Robinson, 604 N.W.2d at 362 (holding prosecutor commented on adequacy of evidence rather than on defendant’s burden of proof when asking why no witness confirmed defendant’s alibi); State v. Salitros, 499 N.W.2d 815, 818 (Minn. 1993) (stating “prosecutor is free to specifically argue there is no merit to a particular defense”); State v. Tate, 682 N.W.2d 169, 178 (Minn. App. 2004) (holding prosecutor did not improperly shift the burden of proof when stating defendant must “explain away” the state’s evidence), review denied (Minn. Sept. 29, 2004).  And error may be adequately averted by carefully worded instructions on the state’s burden of proof.  Robinson, 604 N.W.2d at 362 (fine line between fair and inappropriate comment on the absence of evidence adequately protected by district court’s “repeated instruction on the state’s burden to prove the defendant’s guilt . . . beyond a reasonable doubt”); see also State v. Trimble, 371 N.W.2d 921, 926-27 (Minn. App. 1985) (concluding misstatement of burden of proof does not require reversal when district court fully instructs jury on correct burden), review denied (Minn. Oct. 11, 1985).

Appellant first argues that the prosecutor shifted the burden of proof when he stated that there was no evidence to support an assertion defense counsel made during his opening statement, the comment that appellant thought the other driver was turning when appellant went off the road.  But the prosecutor’s statement did not shift the burden of proof; it merely highlighted the lack of evidence to support defense counsel’s argument.  Moreover, the prosecutor was also careful to put the statement in the context of the jury’s duty to base its decision on the evidence rather than on the assertions of counsel.  See State v. Ashby, 567 N.W.2d 21, 28 (Minn. 1997) (stating prosecutor may point out that “allegations are easy to make, but the jury must look at the evidence”).

            Appellant also argues that the prosecutor shifted the burden of proof when, after recounting the testimony of three eyewitnesses, he characterized the evidence as “undisputed,” adding that it was for the jury to decide all issues of credibility.  Appellant argues that the prosecutor’s statement implied that appellant failed to present witnesses at trial.  This characterization of evidence by the prosecutor may have wrongfully suggested a burden on the defendant to contradict testimony.  See State v. Gassler, 505 N.W.2d 62, 69 (Minn. 1993) (noting that “a prosecutor may not comment on a defendant’s failure to call witnesses”).  But we observe, relative to a discussion of prejudice later in this opinion, that the prosecutor only once engaged in the improper portrayal of the unsafe-driving evidence as “undisputed.”  Cf. State v. Streeter, 377 N.W.2d 498, 501 (Minn. App. 1985) (emphasizing importance of repeated references to evidence as “undisputed” or “uncontradicted” in holding references constituted misconduct).  And the prosecutor’s characterization of the evidence as undisputed was factually accurate and tempered by the prosecutor’s admonition that the jury was obligated to judge the credibility of all evidence.

2.  Minimizing Burden

            Relying on State v. Hunt, appellant also argues that the prosecutor minimized the state’s burden of proof when he told the jury that thousands of people were convicted despite the presumption of innocence and the state’s burden of proof.  But in Hunt the court held that a reference to the Greek jury system, in which a stone was placed on either side of a scale for each successful argument made by one party or another, although “questionable” and “arguably confusing,” did not amount to plain error.  615 N.W.2d at 302.  In this case, the reference to the fact that many people are convicted despite the state’s heavy burden of proof was neither questionable nor arguably confusing. 

            Significantly, the reference was immediately preceded by the prosecutor’s characterization of the state’s burden of proof as “heavy,” as “well it should be.”  And the prosecutor began these comments by asking that the jury hold the state to its burden of proof and twice more observed that the state had the burden of proving the offense beyond a reasonable doubt.  Accordingly, it is unlikely that the prosecutor’s statement would have caused the jury to be confused about the state’s burden of proof. 

3.  Prejudice

            Insofar as the prosecutor’s comments constituted error, they did not prejudice appellant.  First, the district court clearly and thoroughly instructed the jury regarding the burden of proof.  See State v. McDonough, 631 N.W.2d 373, 389 n.2 (Minn. 2001) (stating prosecutor’s attempt to shift the burden of proof is “often nonprejudicial and harmless where, as here, the district court clearly and thoroughly instructed the jury regarding the burden of proof”); State v. Buggs, 581 N.W.2d 329, 341-42 (Minn. 1998)(holding erroneous comment nonprejudicial and harmless in light of trial court’s clear and thorough instructions stating appellant had no burden of proof or duty to produce evidence).  Second, the prosecutor’s comments were isolated.  Third, the prosecutor’s argument, as a whole, emphasized rather than minimized the state’s burden of proof.  See State v. Stewart, 514 N.W.2d 559, 564 (Minn. 1994) (stating reviewing court must consider the prosecutor’s closing argument as a whole).  Finally, the evidence against appellant was substantial.  See State v. Atkins, 543 N.W.2d 642, 648 (Minn. 1996) (stating substantial evidence against appellant ensured alleged misconduct harmless beyond a reasonable doubt).  The prosecutor’s comments do not warrant reversal of appellant’s conviction.


* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.