STATE OF MINNESOTA
IN SUPREME COURT
A14-1452
Pope County Dietzen, J.
Took no part, Hudson, J.
State of Minnesota,
Respondent,
vs. Filed: February 10, 2016
Office of Appellate Courts
Amanda Lea Peltier,
Appellant.
_______________________
Lori Swanson, Attorney General, Michael T. Everson, Assistant Attorney General, Saint
Paul, Minnesota; and
Neil Nelson, Pope County Attorney, Glenwood, Minnesota, for respondent.
Cathryn Middlebrook, Chief Appellate Public Defender, Rochelle R. Winn, Assistant
Appellate Public Defender, Saint Paul, Minnesota, for appellant.
_______________________
SYLLABUS
1. The instruction given to the jury describing the elements of first-degree child
abuse murder, Minn. Stat. § 609.185(a)(5) (2014), including malicious punishment of a
child as a type of child abuse, constituted plain error because the instruction failed to
include the elements of malicious punishment of a child under Minn. Stat. § 609.377, subd.
1 (2014). The appellant, however, failed to establish that the erroneous jury instruction
affected her substantial rights.
1
2. The district court did not err in admitting expert testimony that commented
on the form of abuse because there was no reasonable likelihood that testimony
significantly affected the verdict.
3. The prosecutor made several remarks that were improper, but those remarks
did not affect the defendant’s substantial rights.
Affirmed.
OPINION
DIETZEN, Justice.
Appellant Amanda Lea Peltier was found guilty by a Pope County jury of first-
degree murder while committing child abuse, second-degree felony murder, and second-
degree manslaughter, arising out of the death of Eric D. on February 28, 2013. The district
court convicted Peltier of first-degree murder while committing child abuse and imposed
a life sentence with the possibility of supervised release after 30 years. On direct appeal
Peltier argues: (1) the jury instruction omitted essential elements of the charged offense,
denying her a fair trial; (2) the district court abused its discretion in allowing a state expert
to testify that biting a child is a “particularly vicious” form of child abuse; and (3) the
prosecutor engaged in misconduct during closing argument that deprived Peltier of a fair
trial. For the reasons that follow, we affirm the conviction.
On the evening of February 27, 2013, police responded to a 911 call from Peltier’s
home that her stepson, four-year-old Eric, was unresponsive. Upon arrival, an emergency
2
medical technician immediately administered CPR1 and transported Eric to the local
hospital. The child was intubated with a ventilator to assist his breathing, and a nasogastric
tube was inserted into his stomach to help stabilize him. Subsequently, Eric was
transported by helicopter to St. Cloud Hospital, where he died after medical efforts to save
his life proved unsuccessful.
Dr. Michael McGee performed an autopsy on Eric’s body that revealed a series of
four crescent-shaped injuries on Eric’s scalp, as well as swelling of the soft tissue of the
scalp. These injuries were consistent with an adult biting Eric’s head 2 to 3 days prior to
his death. The child’s body had 11 separate bruises on the forehead, including two that
could have been caused by an object striking Eric. Also, his body had a significant injury
to the lips, a hemorrhage on the left ear, and inner-ear injuries to the right ear.
Dr. McGee concluded that the cause of death was peritonitis, which was the result
of a perforated bowel. Peritonitis occurs when bacteria are released into the abdominal
cavity, producing an inflammatory response. Dr. McGee concluded that the perforation of
the bowel probably occurred within three days before Eric’s death and was the result of
blunt force trauma to Eric’s abdomen.
Peltier was questioned about the events leading up to Eric’s death by investigators
from the Minnesota Bureau of Criminal Apprehension (BCA) on February 28 and March
5, 2013. She told them that on Tuesday, February 26, after leaving Eric on the couch, she
heard him scream and returned to find his lip bleeding. Peltier said that Eric began
1
“CPR” is an abbreviation for cardiopulmonary resuscitation.
3
vomiting around 1:30 p.m. that day, and that he continued vomiting all afternoon and into
the evening. Eric also complained of pain in his stomach and back.
Peltier told the BCA investigators that Eric’s illness persisted into Wednesday,
February 27, and that he started taking “short, quick” breaths at about 7:30 p.m. He also
had a slight fever at that time. Peltier stated that she brought Eric into her bed to keep an
eye on him, that he appeared confused, and that he repeatedly tried to drink out of his “puke
bucket.” Peltier left Eric in the bedroom and went to prepare a place for him to sleep on
the couch. When Peltier returned, Eric was on his back, choking on his own vomit. Peltier
began performing CPR, and Eric’s father, D.D., called 911.
Following an investigation, the matter was submitted to a grand jury. The grand
jury returned an indictment charging Peltier with murder in the first degree while
committing child abuse, Minn. Stat. § 609.185(a)(5) (2014), and murder in the second
degree while committing malicious punishment of a child, Minn. Stat. §§ 609.19, subd.
2(1) (2014), 609.377, subd. 6 (2014).
At trial, the State presented extensive testimony in support of its theory that Peltier
caused the death of her stepson, Eric, while committing child abuse. The State introduced
the results of Dr. McGee’s autopsy and the recordings of two interviews of Peltier by state
investigators. During one of the interviews, Peltier admitted to slapping Eric on the mouth
or the side of his head “a good 6 to 10 times” in the 2 days preceding his death.
Additionally, the staff at the daycare that Eric attended from December 2010 through
January 2012 testified that Eric appeared to be physically abused. Also, Dr. James Green,
an orthopedic surgeon, testified that Eric suffered a broken arm while in Peltier’s care.
4
Finally, Peltier’s neighbor, T.C., testified that, on the Saturday following Eric’s death,
Peltier told her that she was going to “go down for” Eric’s death.
Following trial, a Pope County jury found Peltier guilty of first-degree murder while
committing child abuse, second-degree murder while committing malicious punishment of
a child, and the lesser-included offense of second-degree manslaughter. The district court
imposed a life sentence with eligibility for supervised release after 30 years. This direct
appeal followed.
I.
Peltier first argues that the district court erred when it instructed the jury on the
definition of first-degree murder while committing child abuse under Minn. Stat.
§ 609.185(a)(5), and that the error denied her a fair trial. Specifically, Peltier contends that
the jury instructions omitted essential elements of the charged offense that allowed the jury
to find her guilty without finding that the State proved all the elements of the crime. The
State responds that Peltier failed to raise this argument below, and therefore it is subject to
plain-error review. Also, the State maintains that the district court did not err because it
properly instructed the jury on all the elements of first-degree child-abuse murder.
We review a district court’s jury instructions for an abuse of discretion. State v.
Mahkuk, 736 N.W.2d 675, 682 (Minn. 2007). The district court enjoys considerable
latitude in selecting jury instructions, including the specific language of those instructions.
See State v. Kelley, 855 N.W.2d 269, 274 (Minn. 2014). But the jury instructions must
fairly and adequately explain the law of the case and not materially misstate the law. State
v. Carridine, 812 N.W.2d 130, 142 (Minn. 2012); State v. Kuhnau, 622 N.W.2d 552, 556
5
(Minn. 2001). For example, a district court commits plain error if it fails to properly
instruct the jury on all elements of the offense charged. See State v. Vance, 734 N.W.2d
650, 658 (Minn. 2007) (explaining State v. Ihle, 640 N.W.2d 910, 912-17 (Minn. 2002));
Mahkuk, 736 N.W.2d at 682. We review the jury instructions as a whole to determine
whether they fairly and adequately explain the law. Kelley, 855 N.W.2d at 274.
Peltier was convicted of first-degree murder while committing child abuse. Minn.
Stat. § 609.185(a)(5); Minn. Stat. § 609.377. A person is guilty of this type of first-degree
murder if she:
causes the death of a minor while committing child abuse, when the
perpetrator has engaged in a past pattern of child abuse upon a child and
the death occurs under circumstances manifesting an extreme indifference
to human life.
Minn. Stat. § 609.185(a)(5). Under this statute, “child abuse” is defined as “an act
committed against a minor victim that constitutes a violation” of any one of twelve
enumerated statutes. Minn. Stat. § 609.185(d) (2014). The district court in this case
instructed the jury that “child abuse” includes first-degree assault, Minn. Stat. § 609.221
(2014); third-degree assault, Minn. Stat. § 609.223 (2014); fifth-degree assault, Minn. Stat.
§ 609.224 (2014); malicious punishment of a child, Minn. Stat. § 609.377; and neglect of
a child, Minn. Stat. § 609.378 (2014). At issue in the present appeal are the district court’s
instructions to the jury with respect to malicious punishment of a child.
Malicious punishment of a child is defined, in relevant part, as “an intentional act
or a series of intentional acts with respect to a child,” committed by “[a] parent, legal
guardian, or caretaker,” that “evidences unreasonable force or cruel discipline that is
6
excessive under the circumstances.” Minn. Stat. § 609.377, subd. 1. Malicious punishment
is either a gross misdemeanor or a felony, depending upon the offender’s record of prior
offenses, the nature and extent of any injury inflicted, and the age of the child. Id., subds.
2-6. Section 609.377, subdivision 4, provides that malicious punishment is a felony when
“the punishment is to a child under the age of four and causes bodily harm to the head,
eyes, neck, or otherwise causes multiple bruises to the body.” Id., subd. 4.
The district court’s jury instructions on the elements of first-degree murder while
committing child abuse addressed malicious punishment twice.2 The court first discussed
malicious punishment as part of its instruction on the “child abuse” element. It identified,
and defined, each of the five forms of child abuse that were alleged by the State: first-,
third-, and fifth-degree assault; malicious punishment of a child; and child neglect. With
respect to malicious punishment, the court gave each of the three elements: (1) “parent,
legal guardian, or caretaker”; (2) “intentional act or series of intentional acts with respect
to a child”; and (3) “evidences unreasonable force or cruel discipline that is excessive under
the circumstances.” The court defined the terms “unreasonable force,” “cruelty,” and
“caretaker.” Finally, the court advised the jury that a person is not guilty of malicious
punishment if the person has used “reasonable force” to “restrain or correct” a child.
2
The district court also set forth the elements of malicious punishment of a child in
its instruction for second-degree murder while committing malicious punishment of a
child.
7
The court addressed malicious punishment a second time, as part of its instructions
on the “past pattern of child abuse” element. The court’s instructions included the
following relevant language:
[T]he defendant engaged in a past pattern of child abuse upon [Eric]. A “past
pattern” consists of prior acts of child abuse which form a reliable sample of
observable traits or acts which characterize an individual’s behavior. More
than one prior act of child abuse is required for there to be a past pattern.
For the purpose of determining a past pattern of child abuse you can consider
all the crimes described in subparagraphs A-E under element number three
above, as well as these additional definitions of third degree assault and
malicious punishment of a child:
....
Malicious punishment can also be committed when the punishment is to a
child under the age of four and causes bodily harm to the head, eye, neck, or
otherwise causes multiple bruises to the body of the child.
(Emphasis added.)
Peltier contends that the italicized language relating to felony malicious punishment
of a child under Minn. Stat. § 609.377, subd. 4, misstated the law because it omitted the
elements of malicious punishment that are set forth in Minn. Stat. § 609.377, subd. 1. The
two factors contained in the instruction—the child’s age and the nature or location of any
injury inflicted—are not themselves elements of the crime; instead they are circumstances
that, when present, will elevate the conduct to a felony offense under Minn. Stat. § 609.377,
subd. 4. Peltier asserts that the omission of the actual offense elements allowed the jury to
find that she committed malicious punishment of a child without finding that her conduct
was intentional, or that her conduct evidenced unreasonable force or cruel discipline that
was excessive under the circumstances.
8
Initially, we must determine whether Peltier preserved her jury instruction omission
claim for appeal. The record reflects that, while Peltier objected to portions of the court’s
proposed jury instructions, she did so on grounds unrelated to those she raises in this
appeal. Peltier objected to the court’s first-degree-murder instruction as a whole on the
ground that it was “cumbersome, burdensome, and confusing.” She pointed specifically to
the court’s use of the phrase “other serious bodily harm,” in lieu of the phrase “other great
bodily harm,” when defining first-degree assault. Peltier also argued, with respect to the
instruction on malicious punishment of a child, that it would confuse the jury because Eric
was more than 4 years old at the time of his death. Peltier also objected on the ground that
the phrase, “under circumstances that manifested an extreme indifference to human life,”
was vague. The district court overruled all of these objections.
Because Peltier did not raise the objection in the district court that she now raises
on appeal, her jury instruction omission claim is subject to plain-error analysis. See State
v. Watkins, 840 N.W.2d 21, 27-28 (Minn. 2013) (citing State v. Milton, 821 N.W.2d 789,
808-10 & n.14 (Minn. 2012) (applying plain-error analysis to determine whether a failure
to instruct the jury on the intent element of accomplice liability affected the defendant’s
substantial rights); State v. Baird, 654 N.W.2d 105, 113 (Minn. 2002) (concluding that
plain-error analysis is applicable to unobjected-to erroneous jury instruction)).
Under plain-error analysis, Peltier is required to establish (1) an error, (2) that is
plain, and (3) that affects her substantial rights. Id. at 28 (citing State v. Griller, 583
N.W.2d 736, 740 (Minn. 1998)). If all three of these requirements are met, we then assess
whether reversal is required to ensure “the fairness, integrity, or public reputation of
9
judicial proceedings.” State v. Scruggs, 822 N.W.2d 631, 642 (Minn. 2012) (citation
omitted) (internal quotation marks omitted); State v. Crowsbreast, 629 N.W.2d 433, 437
(Minn. 2001) (citing Johnson v. United States, 520 U.S. 461, 467 (1997)). An error is
“plain” if it is clear or obvious. State v. Cao, 788 N.W.2d 710, 715 (Minn. 2010).
Typically, a “plain” error contravenes case law, a rule, or a standard of conduct. Id.
The instruction in this case properly instructed the jury that felony malicious
punishment of a child under Minn. Stat. § 609.377, subd. 4, is a crime that may constitute
a past pattern of child abuse under Minn. Stat. § 609.185(a)(5). But the jury instruction
omitted the offense elements of the crime of malicious punishment of a child: that the
conduct involved “an intentional act or series of intentional acts” that “evidences
unreasonable force or cruel discipline that is excessive under the circumstances.” Minn.
Stat. § 609.377, subd. 1. Because the jury instruction describing felony malicious
punishment of a child under Minn. Stat. § 609.377, subd. 4 as a type of child abuse omitted
the elements of the offense set forth in Minn. Stat. § 609.377, subd. 1, the instruction was
plainly erroneous.
We next examine whether Peltier has established that the plain error affected her
substantial rights. See Watkins, 840 N.W.2d at 28 (reaffirming “that the omission of an
element of a crime in a jury instruction does not automatically require a new trial”). “An
error in instructing the jury is prejudicial if there is a reasonable likelihood that giving the
instruction in question had a significant effect on the jury’s verdict.” Id. (quoting State v.
Gomez, 721 N.W.2d 871, 880 (Minn. 2006)).
10
To determine whether this error affected Peltier’s substantial rights, we look to all
relevant factors including, but not limited to: (1) whether Peltier contested the omitted
elements at trial and submitted evidence to support a contrary finding; (2) whether the State
presented overwhelming evidence to prove those elements; and (3) whether the jury’s
verdict nonetheless encompassed a finding on those elements notwithstanding their
omission from the jury instructions. Watkins, 840 N.W.2d at 29. We will examine these
three factors in turn.
As to the first factor, Peltier does not contest that her physical abuse of Eric was
intentional and excessive. Indeed, she admitted that she physically abused Eric. Peltier’s
neighbor, T.C., testified that Peltier admitted that she threw Eric into a corner a short time
before his death, and that Peltier “hit him in the face and buttocks,” leaving bruises. Peltier
also admitted that she had bitten Eric on the head. Peltier’s seven-year-old son, J.P.,
testified that he saw Peltier choke, bite, and throw Eric. Peltier also admitted to State
investigators that she slapped Eric on the mouth and the side of his head “a good 6 to 10
times” in the 2 days leading up to his death. Peltier admitted to biting Eric on his head and
face, and that she grabbed Eric by the arm and threw him into the wall. Peltier attempted
to deflect some of the blame to Eric, but not once did Peltier argue to the jury that her acts
were unintentional or reasonable rather than cruel and excessive under the circumstances.
As to the second factor, the evidence that the physical abuse was intentional and
excessive is overwhelming. In addition to Peltier’s admissions, employees at the daycare
Eric attended from December 2010 until January 2012 testified that Peltier treated Eric
harshly, and did not show him warmth or affection. Peltier frequently complained to them
11
about Eric’s behavior, spoke angrily to him, and sometimes asked daycare staff to make
Eric spend the day by himself at a table if he had misbehaved the previous evening. The
staff noticed that Eric often had bruises, scratches, and bite marks on his body, and that the
number and frequency of these injuries was unusually high compared to other children. In
late October 2011, Eric arrived at daycare with multiple bite marks on his cheek and ear.
He also had bruises and scratches on his body. In mid-November 2011, Eric had a large
bump on his head, surrounded by puncture wounds. When asked about the injury, Eric
responded first by blaming his brother, but later said that Peltier was responsible. A
daycare provider subsequently filed a report with child protection.
Dr. James Green, an orthopedic surgeon, testified that he had previously treated Eric
for a broken arm. Dr. Green determined that Eric had a spiral fracture of his right humerus
and noted a developing black eye. Because spiral fractures are rare in young children and
often indicate abuse, the injury was reported to child protection. A witness from Pope
County Social Services, K.L.T., who investigated Eric’s broken arm, testified that Peltier
told her Eric sustained the injury after falling down the stairs. After consulting with a
different doctor, K.L.T. decided not to pursue the matter.
Peltier subsequently removed Eric from the daycare provider and placed him in
C.M.’s in-home daycare. C.M. testified she noticed bruising and bite marks on Eric within
days of his placement with her. M.D., who provided special education services to Eric at
the daycare, testified Eric told her the bite marks on his face were self-inflicted. M.D. took
photos of the marks and filed a report with child protection in January 2012.
12
K.L.T. testified that she met with Eric twice in 2012, and that his demeanor changed
between the meetings. At the first meeting, Eric was interactive, but at the second visit,
Eric was withdrawn, would not make eye contact, and “looked very sad.” When asked by
K.L.T., Peltier denied that she physically disciplined her children. Instead, Peltier
suggested that Eric had vision problems that made him clumsy and that he bruised easily.
During a subsequent examination, doctors determined that Eric had no major vision
problems and that there was nothing abnormal about his propensity to bruise.
Taken together, this evidence overwhelmingly demonstrates that Peltier engaged in
a pattern of malicious punishment of Eric prior to his death. Contrary to Peltier’s assertions
on appeal, the conduct on display here does not present a close call.
As to the third factor in the Watkins prejudice analysis, we agree with Peltier that
the jury’s verdict did not otherwise encompass a finding that the abuse was intentional and
excessive under the circumstances.3 See Minn. Stat. § 609.377, subd. 1. Thus, this factor
favors Peltier.
The Watkins factors are not exclusive, do not comprise a rigid test, and it does not
necessarily follow that each must be satisfied. See 840 N.W.2d at 29. We observe that this
is not a case in which the jury was never instructed on the essential elements of malicious
punishment of a child. In fact, as discussed above, the district court’s instructions on “child
3
The jury’s verdict on count two, second-degree murder while committing malicious
punishment of a child, reflects the jury’s conclusion that Peltier committed malicious
punishment of a child when she killed Eric. However, the jury’s determination that Peltier
engaged in malicious punishment of a child on this one occasion is insufficient to find a
past pattern of child abuse under Minn. Stat. § 609.185(a)(5).
13
abuse” included all of the statutory elements of malicious punishment of a child, as did its
instruction on second-degree murder while committing malicious punishment of a child.
While these portions of the instructions were not sufficient to cure the court’s error, they
do inform our conclusion as to the nature and extent of any prejudice.
We conclude the instruction given to the jury describing the elements of first-degree
child abuse murder, Minn. Stat. § 609.185(a)(5), including malicious punishment of a child
as a type of child abuse, constituted plain error because the instruction failed to include the
elements of malicious punishment of a child under Minn. Stat. § 609.377, subd. 1. The
appellant, however, failed to establish that the erroneous jury instruction affected her
substantial rights. While it is true in this case that the jury’s verdict did not otherwise
encompass a finding on the omitted elements, that factor is greatly outweighed by Peltier’s
failure to contest the omitted elements of malicious punishment of a child and the State’s
presentation of overwhelming evidence to prove those elements.
II.
Peltier next argues the district court abused its discretion in permitting Dr. Mark
Hudson, a pediatrician specializing in child abuse at Children’s Hospital and Clinics of
Minnesota, to offer his expert opinion that biting constitutes a “particularly vicious” form
of child abuse. She contends the testimony should have been excluded because it was of
low probative value, inflammatory, and not helpful to the jury.
We review the district court’s evidentiary rulings for an abuse of discretion.
Mahkuk, 736 N.W.2d at 686. Peltier bears the burden of demonstrating both that the district
court abused its discretion in admitting the evidence at issue here, and that she was
14
prejudiced by its admission. State v. Sanders, 775 N.W.2d 883, 887 (Minn. 2009). Peltier
made a timely objection to Dr. Hudson’s testimony, and therefore the harmless-error
standard applies. Id. Under the harmless-error standard, an appellant who alleges an error
in the admission of evidence that does not implicate a constitutional right must prove that
there is “a reasonable possibility that the wrongfully admitted evidence significantly
affected the verdict.” State v. Matthews, 800 N.W.2d 629, 633 (Minn. 2011) (citation
omitted) (internal quotation marks omitted). We look to the following factors when
determining whether testimony significantly affected a verdict: (1) the manner in which
the State presented the testimony; (2) whether the testimony was highly persuasive;
(3) whether the State used the testimony in closing argument; and (4) whether the defense
effectively countered the testimony. Id. at 634.
An expert witness is permitted to testify in the form of an opinion when: (1) the
testimony will assist the factfinder; (2) the witness is qualified to provide expert testimony
because of his knowledge, skill, experience, training, or education; and (3) the expert’s
opinion has foundational reliability. Minn. R. Evid. 702; Doe v. Archdiocese of St. Paul,
817 N.W.2d 150, 164-65 (Minn. 2012). Opinion testimony is not objectionable merely
because it embraces an ultimate issue to be decided by the jury. Minn. R. Evid. 704. In
exercising its discretion, the district court must examine whether the expert is qualified to
express an opinion, and whether the opinion “will assist the trier of fact to understand the
evidence or to determine a fact in issue.” Minn. R. Evid. 702. “Expert testimony may be
excluded if its probative value is substantially outweighed by the danger of unfair
15
prejudice, confusion, or misleading the jury.” State v. Sontoya, 788 N.W.2d 868, 872-73
(Minn. 2010).
The relevant portion of Dr. Hudson’s testimony was as follows:
PROSECUTOR: Is an adult biting a child a common or uncommon form of
child abuse?
THE WITNESS: Uncommon. I’ve been doing full time child abuse
evaluations for the last 10 plus years and I’ve probably evaluated only
a handful of children who -- where they are abusively bitten,
repeatedly bitten.
PROSECUTOR: What would that suggest to you when an adult bites a child?
DEFENSE COUNSEL: Objection, speculation.
THE COURT: Overruled.
THE WITNESS: I think that adults biting children is very unusual,
particularly in my opinion particularly vicious.
DEFENSE COUNSEL: Objection, argumentative.
THE COURT: Overruled.
THE WITNESS: I think it’s not typical of what happens when people get
frustrated and slap a child or spank a child which is a more common
form of inflicting injury on children, and so I think it’s -- it speaks to
a very unusual and maybe even cruel form of child abuse.
DEFENSE COUNSEL: Your Honor, I’m going to object to that. That’s
inflammatory and it is argumentative.
THE COURT: I’ll sustain the objection. The jury should disregard the last
comment.
Whether the district court erred in admitting the “particularly vicious” statement is
a close call. Assuming without deciding that the district court abused its discretion in
admitting this testimony, we conclude that there is no reasonable likelihood that the
16
objected-to testimony significantly affected the verdict in this case. While the first short
statement was admitted into evidence, the court sustained an objection to the more
substantive testimony that followed. That testimony described how biting a child is
different from more “typical” acts of abuse that occur when a parent or caretaker lashes out
in frustration. Further, the “particularly vicious” statement occupies just three lines in the
transcript, while Dr. Hudson’s full testimony runs to 69 pages. In addition, Dr. Hudson
was only one of several witnesses who testified as experts for the State. The State did not
mention the contested testimony in its closing argument. And, while the defense had ample
opportunity to attack the disputed testimony, both on cross-examination and during closing
argument, it declined to do so. Lastly, the prejudicial effect of this testimony was no doubt
blunted because Dr. Hudson was only stating the obvious. See State v. Bowers, 482
N.W.2d 774, 778 (Minn. 1992) (stating that medical examiner’s testimony that the depth
of the victim’s stab wound indicated that the stabbing was an intentional act “was only
stating the obvious,” given that the knife blade was shorter than the wound was long).
These factors, taken together, lead us to conclude that there was no reasonable likelihood
that the objected-to testimony significantly affected the verdict in this case.
III.
Peltier next argues the prosecutor engaged in unobjected-to misconduct during
closing argument by (1) disparaging the defense, (2) arguing facts not in evidence, and
(3) misstating the law. According to Peltier, the prosecutor’s alleged misconduct deprived
her of a fair trial.
17
Because Peltier did not object to the prosecutor’s remarks during closing argument,
we review the alleged prosecutorial misconduct under the modified plain-error test. See
State v. Ramey, 721 N.W.2d 294, 299-300 (Minn. 2006). “Under that test, the defendant
has the burden to demonstrate that the misconduct constitutes (1) error, (2) that is plain.”
State v. Matthews, 779 N.W.2d 543, 551 (Minn. 2010). If plain error is established, the
burden then shifts to the State to demonstrate that the error did not affect the defendant’s
substantial rights. Matthews, 779 N.W.2d at 551; Ramey, 721 N.W.2d at 300, 302. To
meet the third prong, the State must show that there is “no reasonable likelihood that the
absence of the misconduct in question would have had a significant effect on the verdict.”
Ramey, 721 N.W.2d at 302 (citations omitted). If all three prongs of the test are met, “we
may correct the error only if it ‘seriously affect[s] the fairness, integrity, or public
reputation of judicial proceedings.’ ” Crowsbreast, 629 N.W.2d at 437 (quoting Johnson,
520 U.S. at 467).
A.
Peltier first claims the prosecutor disparaged her right to a jury trial. It is well-
settled that the State has the right to vigorously argue its case. State v. MacLennan, 702
N.W.2d 219, 236 (Minn. 2005). But a prosecutor is not permitted to disparage the defense
in closing argument. See State v. McDaniel, 777 N.W.2d 739, 752 (Minn. 2010). The
State may argue that there is no merit in a particular defense, but it may not belittle that
defense either in the abstract or by suggesting that the defendant raised the defense because
it was the only one with any hope for success. MacLennan, 702 N.W.2d at 236.
18
The prosecutor argued in closing:
[T]he defendant has an absolute right to have the State prove its case by proof
beyond a reasonable doubt to you because anything can happen during a trial.
Witnesses may become unavailable. Evidence may not be admitted.
Witnesses may not remember and recollect. You know, we had witnesses
from out-of-state, maybe they wouldn’t come. But none of that happened in
this case, and you did hear all the evidence, and you’re never going to have
all the evidence, all the facts, because we don’t have video cameras inside
people’s houses so you have to depend on the statements of witnesses.
The federal and state constitutions and our adversarial process protect the right of
the accused to contest the evidence presented by the government. See Washington v. Texas,
388 U.S. 14, 19 (1967). Indeed, the right to confront and cross-examine the government’s
witnesses is a “fundamental right” that allows a defendant to clarify or correct the
testimony of the State’s witnesses. Pointer v. Texas, 380 U.S. 400, 403 (1965).
We conclude that the prosecutor’s remarks mischaracterized the reason for a trial.
Implicit in the prosecutor’s remarks is the suggestion that the only reason Peltier exercised
her right to a trial was because she hoped some unforeseen circumstance might upset the
State’s case, or that the only way Peltier could be found not guilty would be if the State
made a mistake. The comments further imply that Peltier only exercised her right to trial
in a desperate attempt to “roll the dice,” rather than to robustly confront the State’s
allegations with a meritorious defense. These statements were untrue and disparaging, and
constituted misconduct.
19
B.
Peltier next contends the prosecutor argued facts not in evidence: (1) that Peltier
learned the abusive behavior from an ex-boyfriend, and (2) that Peltier exhibited a trait
common to child abusers when she engaged in victim-blaming.
“[T]he State may present all legitimate arguments on the evidence and all proper
inferences that can be drawn from that evidence in its closing argument.” State v. Munt,
831 N.W.2d 569, 587 (Minn. 2013) (quoting State v. Pearson, 775 N.W.2d 155, 163 (Minn.
2009)). However, a lawyer may not speculate without a factual basis. Pearson, 775
N.W.2d at 163. “It is unprofessional conduct for the prosecutor intentionally to misstate
the evidence or mislead the jury as to the inferences it may draw.” State v. Bobo, 770
N.W.2d 129, 142 (Minn. 2009) (quoting State v. Salitros, 499 N.W.2d 815, 820 (Minn.
1993).
The arguments that Peltier learned abusive behavior from a past romantic partner
and that she engaged in behavior common to child abusers are troubling. These claims
have no basis in the record. It is true that evidence at trial suggested that Peltier and her
children suffered abuse at the hands of her former partner, but no evidence was presented
to show that domestic abuse is learned and passed on between adults. Similarly, the
evidence is clear that Peltier publicly blamed Eric for his own injuries, but there is no
indication that she did so because she felt a need to justify her actions or that this is a
behavior common to child abusers. Because these inferences go to psychological
hypotheses and are not adequately supported by either the facts in evidence or expert
testimony, we conclude that they were improper in this case.
20
C.
Finally, Peltier alleges that the prosecutor misstated the law by arguing that a past
pattern of child abuse can include past child abuse committed by Peltier against another
child, J.P.
Minn. Stat. § 609.185(a)(5) provides that a person is guilty of first-degree murder if
the person “causes the death of a minor while committing child abuse when the perpetrator
has engaged in a past pattern of child abuse upon a child and the death occurs under
circumstances manifesting an extreme indifference to human life.” The Legislature
amended the past-pattern language in the statute in 2005 from “a past pattern of child abuse
upon the child” to “a past pattern of child abuse upon a child.” Act of June 2, 2005, ch.
136, art. 17, § 10, 2005 Minn. Laws 901, 1127-28 (emphasis added); Minn. Stat.
§ 609.185(a)(5) (emphasis added). This amendment aligns the child abuse provision of the
first-degree murder statute with the domestic-abuse provision of the same statute, which
allows for a pattern of domestic abuse to be found in instances in which “the perpetrator
has engaged in a past pattern of domestic abuse upon the victim or upon another family or
household member.” Minn. Stat. § 609.185(a)(6) (2014) (emphasis added). Because the
statutory definitions of first-degree child-abuse murder and first-degree domestic-abuse
murder have nearly identical language, we interpret the provisions in a similar fashion. See
State v. Johnson, 773 N.W.2d 81, 86 (Minn. 2009). In State v. Hayes, we affirmed a
conviction under the first-degree domestic-abuse murder provision that allows patterns of
abuse against two different persons to be used as past-pattern evidence. 831 N.W.2d 546,
554-55 (Minn. 2013).
21
We conclude that the Legislature’s amendment to Minn. Stat. § 609.185(a)(5)
extended the reach of the statute to a perpetrator who has engaged in a past pattern of child
abuse upon any child. Consequently, evidence of abuse against children other than the
victim is admissible as past-pattern evidence. The prosecutor, therefore, did not misstate
the law.
D.
We next examine whether the misconduct of disparaging the defense and arguing
facts not in evidence affected Peltier’s substantial rights. To answer this question, we
consider: (1) the strength of the evidence against Peltier; (2) the pervasiveness of the
erroneous conduct; and (3) whether Peltier had an opportunity to rebut any improper
remarks. State v. Davis, 735 N.W.2d 674, 682 (Minn. 2007).
We conclude that the prosecutor’s improper remarks did not affect Peltier’s
substantial rights for three reasons. First, the evidence in support of the conviction is
overwhelming. Second, the incidents of alleged misconduct were isolated, together
comprising approximately one page of a 39-page closing argument. The prosecutor did
not unduly emphasize, or repeat, any of these points, and none of them was central to the
State’s case. Finally, Peltier had ample opportunity to rebut the prosecutor’s erroneous
statements in her closing argument, even if she declined to do so. Thus, we conclude that
the prosecutorial misconduct here did not affect Peltier’s substantial rights.
IV.
For the foregoing reasons, we affirm Peltier’s conviction for first-degree murder
while committing child abuse.
22
Affirmed.
HUDSON, J., not having been a member of this court at the time of submission,
took no part in the consideration or decision of this case.
23