This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2014).

STATE OF MINNESOTA

IN COURT OF APPEALS

A14-1619

State of Minnesota, 

Respondent, 

vs. 

Lori Ann Fulwiler, 

Appellant.

Filed April 6, 2015

Affirmed

Halbrooks, Judge

Mille Lacs County District Court

File No. 48-CR-12-2364

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

Janice Jude, Mille Lacs County Attorney, Brian D. Wold, Heather R. Van Zee, Assistant 

County Attorneys, Milaca, Minnesota (for respondent) 

Lori Ann Fulwiler, Isle, Minnesota (pro se appellant)

Considered and decided by Johnson, Presiding Judge; Halbrooks, Judge; and 

Larkin, Judge. 

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

HALBROOKS, Judge

Appellant, pro se, challenges her terroristic-threats conviction, arguing that (1) the 

evidence was insufficient to prove that she made terroristic threats, (2) the prosecutor 
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committed misconduct during closing argument, and (3) she received ineffective 

assistance of counsel. We affirm.

FACTS

On November 13, 2012, the state charged appellant Lori Ann Fulwiler with 

terroristic threats, in violation of Minn. Stat. § 609.713, subd. 1 (2012). The complaint 

states that, on or about November 1 or 2, 2012, Fulwiler entered the break room at the 

Grand Casino Mille Lacs, her place of employment, and stated that “she couldn’t wait to 

‘get out of this hell hole’” and that “on her last day she was going to ‘bash heads in, flip 

tables, and kill the people she didn’t like.’” A jury found Fulwiler guilty of terroristic 

threats. 

Fulwiler moved the district court for judgment of acquittal pursuant to Minn. R. 

Crim. P. 26.03, subd. 18(3), arguing that the evidence was insufficient to sustain the 

conviction, or in the alternative, for a new trial pursuant to Minn. R. Crim. P. 26.04, subd. 

1, based on ineffective assistance of counsel and prosecutorial misconduct. The district 

court granted an evidentiary hearing on Fulwiler’s ineffective-assistance-of-counsel claim 

but denied her motion for acquittal or new trial based on prosecutorial misconduct. The 

district court did not address the sufficiency-of-the-evidence claim. Following the 

evidentiary hearing, the district court denied Fulwiler’s motion for judgment of acquittal 

or new trial based on ineffective assistance of counsel. The district court sentenced 

Fulwiler, placing her on probation for a period of five years. This appeal follows.
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D E C I S I O N

I.

When addressing a sufficiency-of-the-evidence challenge, our review is limited to 

determining whether the evidence “was sufficient to permit the jurors to reach the verdict 

which they did.” State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). We “view the 

evidence in the light most favorable to the verdict and assume that the factfinder 

disbelieved any testimony conflicting with that verdict.” State v. Chavarria-Cruz, 839 

N.W.2d 515, 519 (Minn. 2013) (quotation omitted). This is particularly true when 

resolution of the matter depends on conflicting testimony “because weighing the 

credibility of witnesses is the exclusive function of the jury.” State v. Pieschke, 295 

N.W.2d 580, 584 (Minn. 1980). We will not reverse a conviction when “the jury, acting 

with due regard for the presumption of innocence and for the necessity of overcoming it 

by proof beyond a reasonable doubt,” could reasonably conclude that the appellant was 

proven guilty of the offense. Bernhardt v. State, 684 N.W.2d 465, 476 (Minn. 2004) 

(quotation omitted).

The elements of terroristic threats are (1) a person threatens (2) to commit a crime 

of violence (3) with purpose to terrorize another or in a reckless disregard of the risk of 

causing terror in another. State v. Bjergum, 771 N.W.2d 53, 55 (Minn. App. 2009)

(citing Minn. Stat. § 609.713, subd. 1), review denied (Minn. Nov. 17, 2009). A “crime 

of violence” includes murder and assault in the first, second, and third degrees. See 

Minn. Stat. § 609.713, subd. 1 (stating that “crime of violence” has the same meaning as 
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“violent crime” in Minn. Stat. § 609.1095, subd. 1(d), which lists, in part, all the degrees 

of murder and first- through third-degree assault).

At Fulwiler’s trial, co-worker A.L. testified that, on November 1 or 2, 2012, she 

observed Fulwiler enter the break room at the casino and heard her say that she “wanted 

to come in on her last day and bash people’s heads in and kill people that she did not 

like.” Co-worker S.R. testified that he heard Fulwiler say “on her last day she was going 

to come in and kill all the floors she didn’t like.” S.R. explained that “floors” refers to 

the pit supervisors at the casino. Co-worker K.S. testified that A.L. told her that Fulwiler 

threatened “flipping tables, bashing heads, whatever,” on her last day of work. K.S.’s 

supervisor, T.K., testified that K.S. told her that “she had heard from another associate 

that [Fulwiler] had said on her last day of work that the people she didn’t like she was 

going to shoot and take down.” 

A.B., the director of human resources, testified that K.S. was very scared when she 

talked to her and that K.S. had been told by coworkers that Fulwiler “was going to bring 

a gun into the work place and shoot the people she didn’t like.” A sergeant with the 

Mille Lacs Tribal Police Department testified that he responded to a threats complaint at 

the casino on November 10, 2012. The sergeant further testified that he gathered 

information that “an employee had resigned and made some threats that on her last day of 

employment which was coming due, that she would cause harm to employees that she 

didn’t care for.” Fulwiler took the stand and also called M.S. to testify in her defense.1

 

1

Fulwiler did not provide a transcript of her own testimony or M.S.’s testimony for 

appellate review. 
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Fulwiler contends on appeal that she did not make the threatening statements and 

that the state’s witnesses were lying, pointing to inconsistencies in the witnesses’ 

testimony regarding whether the threat included the use of a gun versus “bashing heads 

in.” But “[i]nconsistencies or conflicts between one witness and another do not 

necessarily constitute false testimony or serve as a basis for reversal.” State v. Mems, 708 

N.W.2d 526, 531 (Minn. 2006). “[B]oth credibility determinations and the weighing of 

evidence are tasks reserved to the jury.” State v. Dahlin, 695 N.W.2d 588, 596 (Minn. 

2005). 

While the witnesses’ statements may have been inconsistent regarding whether 

Fulwiler threatened to shoot people or “bash heads in,” “all inconsistencies in the 

evidence are . . . resolved in favor of the state.” State v. Budreau, 641 N.W.2d 919, 929 

(Minn. 2002) (quoting State v. Bergeron, 452 N.W.2d 918, 924 (Minn. 1990)). Further, 

the jury could have concluded that both shooting someone and “bashing heads in” 

constitute, at a minimum, an assault in the third degree, which requires “substantial 

bodily harm.” Minn. Stat. § 609.223, subd. 1 (2012); see also Minn. Stat. § 609.02, subd. 

7a (2012) (“‘Substantial bodily harm’ means bodily injury which involves a temporary 

but substantial disfigurement, or which causes a temporary but substantial loss or 

impairment of the function of any bodily member or organ, or which causes a fracture of 

any bodily member.”). 

The jury, after having the opportunity to evaluate the credibility of all the 

witnesses’ testimony, found that the state proved beyond a reasonable doubt that Fulwiler 

threatened to commit a crime of violence with the purpose of terrorizing another or in 
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reckless disregard of causing terror in another. We conclude that the evidence is 

sufficient to sustain Fulwiler’s terroristic-threats conviction.

II.

Fulwiler argues that the prosecutor committed misconduct in her closing argument 

by referencing unrelated shootings and commenting on the credibility of witnesses. We 

review closing arguments in their entirety to determine whether prosecutorial misconduct 

occurred. State v. Vue, 797 N.W.2d 5, 15 (Minn. 2011). The prosecutor has 

“considerable latitude” in making a closing argument, and the argument is not required to 

be “colorless.” State v. Williams, 586 N.W.2d 123, 127 (Minn. 1998). Fulwiler did not 

object to any of the alleged misconduct during the trial, but she moved the district court 

for a new trial based on prosecutorial misconduct in a posttrial motion. The district court 

denied Fulwiler’s posttrial motion. We review a district court’s denial of a posttrial 

motion for a new trial based on prosecutorial misconduct for an abuse of discretion. State 

v. Smith, 464 N.W.2d 730, 734 (Minn. App. 1991), aff’d, 476 N.W.2d 511 (Minn. 1991).

Whether a new trial should be granted because of misconduct 

of the prosecuting attorney is governed by no fixed rules but 

rests within the discretion of the trial judge, who is in the best 

position to appraise its effect. The [district] court’s 

determination should be reversed on appeal only where the 

misconduct, viewed in the light of the whole record, appears 

to be inexcusable and so serious and prejudicial that 

defendant’s right to a fair trial was denied.

State v. Wahlberg, 296 N.W.2d 408, 420 (Minn. 1980). 
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Inflaming the Passions or Prejudices of the Jury

Prosecutors “should not use arguments calculated to inflame the passions or 

prejudices of the jury” and should not “divert the jury from its duty to decide the case on 

the evidence, by injecting issues broader than the guilt or innocence of the accused under 

the controlling law.” State v. Clark, 291 Minn. 79, 82, 189 N.W.2d 167, 170 (1971) 

(quotation omitted). We “pay special attention to statements that may inflame or 

prejudice the jury where credibility is a central issue.” State v. Porter, 526 N.W.2d 359, 

363 (Minn. 1995).

Fulwiler argues that the prosecutor committed misconduct when she stated:

I can’t come up with a reason or a scenario where that would 

not be in reckless disregard that somebody would take that 

comment and have concern, be fearful or worried that hey, 

that’s—what we read about in the papers, the naval yard 

shooting, school shooting, work place shootings—every day 

it seems like. People don’t know what people are going to 

actually follow through on those kinds of threats but people 

know better than to make those kinds of threats.

The district court concluded that the prosecutor’s reference to the naval yard 

shooting, school shooting, and work place shootings was improper and constituted error 

because it referred to unrelated events not in evidence at trial. But the district court 

concluded that the prosecutor did not refer to the unrelated shootings to encourage the 

jury to consider extraneous facts; rather, the prosecutor sought to provide context for why 

Fulwiler’s statements were in reckless disregard of causing terror in others. The district 

court concluded that the prosecutor committed harmless error because one reference to 
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the other shootings in a 29-minute closing argument “did not influence the jury in any 

prejudicial manner so as to deny [Fulwiler] a fair trial.” 

We agree with the district court’s analysis. The prosecutor’s reference to the naval 

yard shooting constitutes error—particularly because that incident occurred only eight 

days before this trial. If the prosecutor had provided a detailed account of the shooting or 

had repeatedly reminded the jury of other recent shootings, the reference may have been 

prejudicial to Fulwiler. But, here, the prosecutor only referenced the other shootings

once in the course of a two-day trial. Therefore, we conclude that the prosecutor’s error 

was harmless.

Commenting on the Credibility of the Witnesses

Fulwiler also argues that the prosecutor committed misconduct when she 

commented on the credibility of the witnesses. “It is improper for a prosecutor in closing 

argument to personally endorse the credibility of witnesses.” Id. at 364. “Disparaging 

the defense or its witnesses” is prosecutorial misconduct, as is “bolster[ing] the 

credibility of the state’s witnesses with the prosecutor’s own opinion.” State v. Hobbs, 

713 N.W.2d 884, 887-88 (Minn. App. 2006), vacated in part on other grounds (Minn. 

Dec. 12, 2006). But the prosecutor may “analyze the evidence and vigorously argue that 

the state’s witnesses were worthy of credibility whereas defendant and his witnesses were 

not” and “urge the jury to consider defendant’s interest in the outcome in assessing his 

credibility.” State v. Googins, 255 N.W.2d 805, 806 (Minn. 1977). 

Here, the prosecutor summarized the testimony and suggested explanations for the 

discrepancies in the witnesses’ testimony. After summarizing Fulwiler’s testimony, the 
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prosecutor asked the jury, “[I]s that credible? Does that make sense to you?” The 

prosecutor pointed to Fulwiler’s interest in the outcome of the case, stating, “Does she 

have motive to lie? You bet.” But a prosecutor may properly acknowledge that the 

defendant has a stake in the outcome of the case. See id. In addition, the prosecutor 

repeatedly reminded the jury that the state carried the burden of proof and that it was the 

jury’s job to assess the credibility of the witnesses. Therefore, the prosecutor did not 

improperly comment on the credibility of the witnesses. We conclude that the district 

court did not abuse its discretion by denying Fulwiler’s motion for a new trial based on

prosecutorial misconduct.

III.

Fulwiler argues that she received ineffective assistance of counsel because her 

counsel advised her against testifying to certain facts and did not call any character 

witnesses in her defense. “[I]neffective assistance of counsel claims involve mixed 

questions of law and fact,” which we review de novo. State v. Rhodes, 657 N.W.2d 823, 

842 (Minn. 2003). The Sixth Amendment guarantees criminal defendants the right to 

effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 

2052, 2063 (1984). To prevail on her claim, Fulwiler must show “that counsel’s 

performance fell below an objective standard of reasonableness, and that a reasonable 

probability exists that the outcome would have been different but for counsel’s errors.” 

Rhodes, 657 N.W.2d at 842. We apply “a strong presumption that counsel’s conduct falls 

within the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689, 

104 S. Ct. at 2065. Generally, we will not review an ineffective-assistance-of-counsel
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claim based on trial strategy, which includes decisions such as what evidence to present 

and what witnesses to call at trial. State v. Bobo, 770 N.W.2d 129, 138 (Minn. 2009).

Fulwiler did not provide the transcript of her own testimony at trial or the 

transcript of the February 7, 2014 evidentiary hearing. Our review is limited to the 

partial transcripts from the jury trial and the district court’s order denying Fulwiler’s

motion based on ineffective assistance of counsel. The district court found that 

Fulwiler’s trial counsel’s testimony at the February 7 evidentiary hearing was credible 

and that her counsel spoke with her on a number of occasions and appeared with her at all 

court proceedings. The district court noted that Fulwiler’s counsel “seemed well 

prepared [at trial], and he vigorously advocated on behalf of his client.” 

Fulwiler’s claims involve strategic trial decisions—namely that her counsel 

advised her to not make certain statements during her testimony and declined to call 

certain witnesses. The partial transcripts available in the record demonstrate that 

Fulwiler’s counsel advocated for her, maintained her innocence, adequately crossexamined the state’s witnesses, and otherwise conducted himself in an objectively 

reasonable manner. His advice and decisions during trial were discretionary trial-strategy 

tactics, which we decline to review. Based on the limited record before us, Fulwiler has 

failed to demonstrate that her counsel’s performance fell below an objective standard of 

reasonableness and that a reasonable probability exists that the outcome would have been 

different but for counsel’s alleged errors. 

Affirmed.