This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA

IN COURT OF APPEALS

A16-0448

State of Minnesota,

Respondent,

vs.

Chris Harry McIntosh,

Appellant.

Filed February 27, 2017

Affirmed

Connolly, Judge

Hennepin County District Court

File No. 27-CR-14-25870

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Michael O. Freeman, Hennepin County Attorney, Kelly O’Neill Moller, Assistant County 

Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Rachel F. Bond, Assistant Public 

Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Reilly, Presiding Judge; Connolly, Judge; and 

Bjorkman, Judge. 
2

U N P U B L I S H E D O P I N I O N

CONNOLLY, Judge

Appellant argues he is entitled to a new trial because the prosecutor committed error

that affected his substantial rights, and that his case should be remanded because the district 

court failed to consider his request for a downward dispositional departure. Because the 

objected-to error was harmless, the alleged unobjected-to conduct did not constitute plain 

error, and the district court sufficiently considered appellant’s departure request, we affirm.

FACTS

Respondent State of Minnesota charged appellant Chris Harry McIntosh with felony 

second-degree assault, felony terroristic threats, and felony carrying a pistol without a 

permit. The charges arose out of an incident with victim O.M. on September 2, 2015. After 

a jury trial, the jury convicted appellant of second-degree assault and terroristic threats, and 

acquitted appellant of carrying a pistol without a permit. The district court sentenced 

appellant to 36 months in prison for the second-degree-assault conviction and imposed no 

sentence for the terroristic-threats conviction. On appeal, appellant argues that the 

prosecutor committed error at trial, and that the district court either did not exercise or 

abused its discretion in failing to consider his motion for departure. 
3

D E C I S I O N

I. Did the prosecutor commit error in closing argument and in questioning a 

witness?

Objected-to error

Appellant contends the prosecutor inappropriately shifted the burden during closing 

arguments by saying certain facts were “impossible for the defendant to deny or disprove,” 

a statement to which defense counsel objected. When reviewing objected-to prosecutorial 

error, the supreme court has historically used a two-tiered approach that depends on the 

severity of the error. See State v. Caron, 300 Minn. 123, 127-28, 218 N.W.2d 197, 200 

(1974). In cases involving serious prosecutorial error, the supreme court has required 

certainty beyond a reasonable doubt that the error was harmless before affirming, but in 

cases involving less serious error, the supreme court has considered whether the error likely 

played a substantial part in influencing the jury to convict. Id. However, it is unclear 

whether the two-tiered test still applies. State v. Carridine, 812 N.W.2d 130, 146 (Minn. 

2012). Recently, the supreme court has applied the standard for severe error, certainty 

beyond a reasonable doubt that the error was harmless, and concluded that if the error is 

harmless under that standard, there is no reason to address the standard for less serious 

error because it could not be satisfied. Id.

Misstatement of the burden of proof constitutes error. State v. Coleman, 373 

N.W.2d 777, 782 (Minn. 1985). However, immediately after the prosecutor said certain 

facts were “impossible for the defendant to deny or disprove,” defense counsel objected to 

the prosecutor’s suggestion that defense must disprove anything, the district court sustained 
4

the objection, and the prosecutor moved on to a different argument. Though the 

prosecutor’s statement constituted error, “corrective instructions by the [district] court can 

cure prosecutorial error.” State v. McDaniel, 777 N.W.2d 739, 750 (Minn. 2010). The 

district court instructed the jury on the burden of proof three times, both before and after 

closing arguments. Defense counsel frequently reminded the jury in closing argument that 

the burden rested on the state, and the prosecutor reiterated the same in his rebuttal. 

Additionally, we review “the closing argument as a whole, rather than just selective phrases 

or remarks that may be taken out of context or given undue prominence to determine 

whether reversible error has occurred.” Id. at 751. Given the context of the numerous 

statements and instructions to the jury that the state had the burden of proof, we conclude 

that the objected-to statement was harmless beyond a reasonable doubt.

In State v. Wren, the Minnesota Supreme Court outlined a number of factors for 

consideration when determining whether error is harmless beyond a reasonable doubt, 

including “how the improper evidence was presented, whether the state emphasized it 

during the trial, whether the evidence was highly persuasive or circumstantial, and whether 

the defendant countered it.” 738 N.W.2d 378, 394 (Minn. 2007). The prosecutor’s 

argument was not evidence, and the objected-to statement was brief, not referred to again, 

and not persuasive as to appellant’s guilt. The analysis of these factors further supports the

conclusion that the objected-to statement was harmless beyond a reasonable doubt. 

Unobjected-to error

Appellant alleges three unobjected-to instances of prosecutorial error: the 

prosecutor described evidence as “undisputed and irrefutable” in closing, elicited 
5

testimony that one witness was surprised at another’s testimony, and invited the jury to 

convict based on appellant’s confession. With respect to allegations of unobjected-to 

prosecutorial error, appellate courts apply a modified plain-error test. State v. Ramey, 721 

N.W.2d 294, 302 (Minn. 2006). Under this test, appellant must still establish that the 

misconduct constitutes error and that the error was plain, which can be shown if the 

misconduct contravenes caselaw, a rule, or a standard of conduct. Id. But the burden then 

shifts to the state to demonstrate that the error did not affect appellant’s substantial rights. 

Id. This third prong “is satisfied if the error was prejudicial and affected the outcome of 

the case.” State v. Griller, 583 N.W.2d 736, 741 (Minn. 1998). Even if the above three 

prongs are met, this court will correct the error “only if the fairness, integrity, or public 

reputation of the judicial proceeding is seriously affected.” State v. Jones, 678 N.W.2d 1, 

18 (Minn. 2004). 

“Undisputed and irrefutable”

The prosecutor referred to certain evidence as “undisputed and irrefutable” four 

times, and the last two times indicated that that evidence was appellant’s own admissions. 

Appellant argues this was improper because “[i]n a long line of cases, Minnesota’s courts 

have held that it is prosecutorial misconduct to characterize the state’s evidence as 

‘undisputed’ or ‘uncontradicted.’” Appellant relies on State v. DeVere and State v. 

Streeter. State v. DeVere, 261 N.W.2d 604, 606 (Minn. 1977); State v. Streeter, 377 

N.W.2d 498, 501 (Minn. App. 1985).

In DeVere, the Minnesota Supreme Court reasoned that “prosecutors should avoid 

using the word ‘uncontradicted’ when referring to the state’s evidence in closing argument 
6

because the danger exists that it will improperly suggest to the jury that the defendant has 

an obligation to call witnesses.” 261 N.W.2d at 606. However, the supreme court went on 

to note that the use of the term in context did not suggest to the jury that the defendant 

should have called witnesses, and the district court had clarified that issue in its 

instructions. Id. As a result, DeVere does not hold that the use of the term “uncontradicted” 

necessarily constitutes error, as appellant argues. Further, the concern with the term

“uncontradicted” is that it implies a defendant has the duty to contradict the prosecution’s 

evidence by calling witnesses. But the terms at issue here are “undisputed and irrefutable,” 

which do not as strongly imply a requirement for a defendant to act in any given way, 

particularly when combined with the repeated clarification by all involved that the state

carries the burden of proof. The context of these terms does not support a finding of plain

error.

In Streeter, the prosecutor “characterized the State’s evidence as ‘uncontradicted’ 

or ‘undisputed’ at least eight times during the course of what was probably a ten-minute 

closing argument,” and the theme of the prosecutor’s closing argument was that “the 

defendant did not challenge the State’s case.” 377 N.W.2d at 501. Immediately after the 

district court issued a cautionary instruction, the prosecutor in Streeter used the terms 

again, and went on to directly state that there was no evidence and no testimony indicating 

the facts as the state presented them were untrue. Id. In the case at hand, however, the 

allegedly problematic terms were used three times in a closing argument that spans 27 

transcript pages and once in a rebuttal that spans four transcript pages. This prosecutor’s 

general theme in closing was that appellant confessed and witness testimony corroborated 
7

those confessions, not that appellant had failed to disprove the state’s case. And both 

defense counsel and the prosecutor explicitly stated that appellant did not have to prove 

anything and that the state had the burden of proof. 

The caselaw on which appellant relies is distinguishable and does not in fact 

establish that the words “undisputed and irrefutable” necessarily constitute error. 

Appellant has failed to show that the prosecutor’s use of these words in context constituted 

plain error.

Victim advocate’s surprise at O.M.’s testimony

Appellant next contends that the prosecutor elicited inadmissible testimony by 

asking “a witness to express an opinion on the truth of another witness’s testimony, 

or . . . to comment on another witness’s testimony.” Appellant cites State v. Pilot as 

support for the impropriety of this type of question, but the Minnesota Supreme Court 

explicitly stated in Pilot that it had not adopted a blanket rule of law indicating the 

impermissibility of such questions. 595 N.W.2d 511, 518 (Minn. 1999). The Pilot court 

found no error when the prosecutor in that case directly asked “were they lying” questions. 

Id. Pilot does not support the argument for which it is cited. Such questions do not 

necessarily constitute error.

Further, the prosecutor here did not directly elicit testimony as to the truth of another 

witness’s testimony. Earlier in the trial, O.M. testified to a completely different version of 

the facts than that which he described in his previous statements to police and to the 

prosecutor’s office. In his testimony, O.M. said that a man named H.D. pointed a gun at 

O.M. O.M. also testified that he spoke with the victim advocate “several times about being 
8

a part of this case,” including one instance in which he allegedly told her “somebody else 

pointed a gun at [him] other than [appellant].” On direct examination of the victim 

advocate, the prosecutor inquired as to whether O.M. ever mentioned H.D. before testifying 

and she answered, “Never ever.” He next asked what her “response . . . [or] natural 

reaction [was] when [she] heard that information.” The victim advocate responded that 

she was “surprised and kind of amazed.” 

Though the difference is slight, the prosecutor’s question here was not a “were they 

lying” question focused on eliciting the victim advocate’s opinion of another witness’s 

testimony as appellant contends. Rather, the question seeks an alternative perspective on 

events to which O.M. had testified. By asking such a question, the prosecutor responded 

to O.M.’s implied questioning of the victim advocate’s credibility and offered more 

evidence to permit the jury to make its own credibility determinations. Appellant has failed 

to demonstrate that the prosecutor’s question to the victim advocate constituted plain error. 

Prosecutor’s reference to appellant’s confession

Appellant next contends that “the prosecutor committed misconduct by misstating 

the law.” Because Minnesota statutorily prohibits convicting a defendant on the basis of 

confessions alone and requires other corroborating evidence, appellant argues that the 

prosecutor’s repeated reference to appellant’s confession as satisfying all elements was 

erroneous. Minn. Stat. § 634.03 (2014). However, a prosecutor can rely on confession 

evidence in conjunction with other evidence, and the “evidence needed to corroborate a 

confession to police is not required to address every element of the charged offense.” State 

v. Heiges, 779 N.W.2d 904, 912 (Minn. App. 2010), aff’d, 806 N.W.2d 1 (Minn. 2011). 
9

“The state’s task is to bolster the confession by independent evidence of trustworthiness.” 

Id. (quotation omitted). The prosecutor remarked on evidence other than the confession in 

closing, in some instances noting that the jury could rely on evidence beyond the confession 

and in other instances describing the corroborating evidence provided at trial. Had the

prosecutor argued for conviction solely on the basis of appellant’s confession, that would 

have constituted error. But that is not the case here, and we review statements in closing 

arguments in the context of the entire argument. McDaniel, 777 N.W.2d at 751. Appellant 

has failed to demonstrate that the prosecutor’s repeated reference to the confession 

constituted plain error.

In sum, the objected-to error was harmless beyond a reasonable doubt. And 

appellant has failed to satisfy the first two prongs of the modified plain-error test to 

establish the alleged unobjected-to prosecutorial errors. Appellant is therefore not entitled 

to a new trial. 

II. Did the district court abuse its discretion in sentencing by failing to thoroughly 

consider a dispositional departure on the record?

Appellant argues that the district court erred by failing to consider his motion for a 

downward dispositional departure at sentencing. “We afford the [district] court great 

discretion in the imposition of sentences and reverse sentencing decisions only for an abuse 

of that discretion.” State v. Soto, 855 N.W.2d 303, 307-08 (Minn. 2014) (quotation 

omitted). A district court is not generally required to provide an explanation when it 

considers reasons for departure but imposes a presumptive sentence. State v. Van Ruler, 

378 N.W.2d 77, 80 (Minn. App. 1985). “Only the rare case will merit reversal based on 
10

the district court’s refusal to depart. When the record contains evidence of factors 

supporting departure, which could have been, but were not, considered by the district court, 

we may remand for consideration of those factors.” State v. Johnson, 831 N.W.2d 917,

925-26 (Minn. App. 2013) (emphasis added) (quotation omitted), review denied, (Minn. 

Sept. 17, 2013).

Appellant contends the district court failed to exercise its discretion by failing to 

consider valid departure factors as the district court did in State v. Curtiss, 353 N.W.2d 262 

(Minn. App. 1984). In Curtiss, the district court said only that there was “no justifiable 

reason to deviate,” apparently precluding arguments for and against departure. 353 

N.W.2d at 263. Here, the district court continued sentencing for the purpose of accepting 

briefing on the very issues of departure and the applicability of mandatory minimums, and 

to allow the district court time to read and research the arguments of counsel. We do not 

assume that the district court intended to waste everyone’s time by continuing the

sentencing for briefing and then ignored both the briefs and the entire question of whether 

a departure was appropriate.

Alternatively, appellant contends the district court abused its discretion in denying 

his motion for departure. Appellant contends there was evidence of factors supporting 

departure before the district court; namely that appellant was “particularly amenable to 

probation, as demonstrated by his acceptance of responsibility, his lack of any violent 

criminal history, his relatively young age, and the state’s decision to extend an offer of a 

probationary sentence before trial.” Appellant’s sentencing memorandum relied on the 
11

presentence investigation report (PSI), contending the PSI “provide[d] an ample basis to 

depart in this case.” However, the evaluative summary in the PSI stated:

Clearly, [appellant] has made attempts to make changes in his 

life, but his ability to sustain positive change is questionable at 

this time as it appears that, when not under direct scrutiny, he 

reverts to previously established patterns. For this reason, this 

Officer cannot find [appellant] amenable to probation or 

further community based services.

Based on this analysis, the PSI writer recommended sentencing pursuant to the Minnesota 

Sentencing Guidelines, which presumed a commitment to the commissioner of corrections. 

The PSI recommendation did not consider application of any mandatory-minimumsentencing provisions, but the district court accepted briefing on the issue. The district 

court determined appellant was subject to a mandatory-minimum sentence resulting from 

the possession or use of a firearm in the commission of the offense. Minn. Stat. § 609.11, 

subd. 5 (2014). But a district court may depart from a mandatory-minimum sentence if it 

“finds substantial and compelling reasons to do so.” Minn. Stat. § 609.11, subd. 8(a) 

(2014). If such reasons exist, the district court should deliberately consider them. Curtiss, 

353 N.W.2d at 264. 

Here, the record supports the district court’s conclusion that there are not substantial 

and compelling reasons to depart from the mandatory-minimum sentence. Appellant 

argues that he is remorseful, youthful, and has a minimal criminal history. But as noted in 

the PSI, he does not have the support of family, failed a urinalysis test, missed 

appointments during his release, and had additional contact with law enforcement after 

being charged with this offense. While some factors may arguably support amenability to 
12

probation, they do not reach the required showing of particular amenability to probation. 

Soto, 855 N.W.2d at 308-09. The district court did not abuse its discretion in denying 

appellant’s departure motion.

Because the objected-to prosecutorial error was harmless beyond a reasonable doubt 

and appellant failed to establish that unobjected-to conduct constituted plain error, 

appellant is not entitled to a new trial. Because the district court sufficiently considered 

appellant’s sentencing arguments and found no substantial and compelling reasons to 

depart from the presumptive guideline sentence, it did not abuse its discretion in denying 

appellant’s departure motion. 

Affirmed.