                                STATE OF MINNESOTA

                                 IN SUPREME COURT

                                        A13-1494


Hennepin County                                                                Dietzen, J.


State of Minnesota,

                      Respondent,

vs.                                                             Filed: September 24, 2014
                                                                Office of Appellate Courts
Eddie Matthew Mosley,

                      Appellant.
                              ________________________

Lori Swanson, Attorney General, Saint 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, Bridget Kearns Sabo, Assistant
State Public Defender, Saint Paul, Minnesota, for appellant.
                              ________________________

                                     SYLLABUS

       1.     The district court did not abuse its discretion in admitting a witness’s in-

court identification of appellant because the testimony did not violate appellant’s due

process rights and was relevant and not unfairly prejudicial.

       2.     The district court did not abuse its discretion in excluding appellant’s

proposed expert testimony on the problems with eyewitness identification because the




                                             1
proffered testimony would not be helpful to the trier of fact, and other safeguards were

present to protect appellant against unreliable in-court identification testimony.

       3.     Appellant’s claims of prosecutorial misconduct lack merit.

       Affirmed.

                                       OPINION

DIETZEN, Justice.

       Appellant Eddie Matthew Mosley was indicted by a Hennepin County grand jury

on three counts of first-degree premeditated murder, three counts of first-degree felony

murder (burglary of an occupied dwelling), and three counts of first-degree felony

murder (burglary while possessing a firearm), arising out of the shooting deaths of

DeLois Brown, James Bolden, and Clover Bolden. Following a bench trial, Mosley was

convicted of three counts of first-degree premeditated murder, and the district court

imposed three consecutive life sentences without the possibility of release. On direct

appeal, Mosley argues that the erroneous admission of an in-court identification, the

exclusion of his proposed expert testimony on eyewitness identification, and

prosecutorial misconduct deprived him of a fair trial. We affirm Mosley’s convictions.

       This case involves the murder of DeLois Brown and her parents, Clover and James

Bolden. Brown and her daughter, W.H., lived in Minnesota. W.H. is the half-sister of

Mosley. Mosley lived in St. Louis, Missouri, but occasionally traveled to Minnesota to

see W.H. and her family. When Mosley travelled to Minnesota, he stayed with W.H. or

Brown, and Brown treated him as a son.




                                              2
        Brown ran a licensed daycare from her home on College Park Drive in Brooklyn

Park. Brown’s parents, Clover and James Bolden, moved into the house in March 2012

so that Brown could help care for them. Mosley had been to Brown’s home many times

and was familiar with the family’s daily routine, which included W.H. dropping her

children off at Brown’s residence around 6:15 a.m. in order to get to work on time.

        On April 9, 2012, the Boldens and Brown were found shot to death in Brown’s

house. Following a police investigation, Mosley was indicted on three counts of first-

degree premeditated murder, in violation of Minn. Stat. § 609.185(a)(1) (2012), three

counts of first-degree felony murder (burglary of an occupied dwelling), in violation of

Minn. Stat. §§ 609.185(a)(3), .582, subd. 1(a) (2012), and three counts of first-degree

felony murder (burglary while possessing a firearm), in violation of Minn. Stat.

§§ 609.185(a)(3), .582, subd. 1(b) (2012). Mosley waived his right to a jury trial, and the

district court held a bench trial.

        At trial, the State presented evidence that in November 2011, W.H. reported to

police that her daughter had been sexually molested by Mosley. On April 3, 2012, a

criminal complaint charging Mosley with first-degree criminal sexual conduct was

mailed to his residence in St. Louis. On April 5, 2012, W.H. received 25 phone calls and

13 text messages from Mosley in which he stated, among other things, that “30 years . . .

that’s life,” “we family sis this not the way,” and asked W.H. to make the charges go

away.

        M.T., a long-time friend of Mosley, testified that three days later Mosley asked

him to take a trip to Minnesota, and M.T. agreed. They left St. Louis in the early evening


                                            3
of April 8, 2012, in Mosley’s black sports utility vehicle (SUV) on a trip to Minnesota.

Mosley did all the driving on the trip and gave M.T. cash to pay for the gas. Mosley did

not leave the SUV during the trip.

       Mosley and M.T. arrived in Brooklyn Park in the early morning hours of April 9,

2012, and parked the SUV in a residential neighborhood near Brown’s residence. M.T.

testified that Mosley changed his clothes, put on a grey hooded sweatshirt with stripes

down the arm, and then retrieved a bicycle from the SUV. Mosley told M.T. to purchase

coffee and cigarettes and then meet him back where they had parked. As M.T. drove to a

nearby gas station, he saw Mosley pedal the bicycle in the direction of a nearby store

parking lot. Brown’s residence was located two blocks northeast of the store. At about 6

a.m., a garbage truck driver observed an African-American male wearing a grey hooded

sweatshirt take a bicycle out of a SUV near the residential neighborhood in which Mosley

had parked. Video surveillance from the store confirmed the driver’s testimony that the

person then bicycled out of the neighborhood and toward the store. Surveillance from the

gas station confirmed M.T.’s testimony that he drove the SUV to the gas station around

6:07 a.m. and left at 6:14 a.m.

       A daycare parent testified that when she dropped her child at Brown’s home that

morning, she observed an African-American male wearing a sweatshirt with a grey hood

and stripes over the shoulders riding a bicycle in front of Brown’s house. As the parent

was driving away, she noticed that the male had changed direction and was pedaling

toward Brown’s house. The parent called Brown to alert her that a suspicious male was

in her neighborhood. During the phone call, she heard Brown say, “Hey you stop!” and


                                           4
then the phone went dead. The parent drove back to Brown’s house, noticed a bicycle

lying on the ground in front of the house, and dialed 911. While speaking with the 911

dispatcher, the parent saw the male with the hooded sweatshirt come out of Brown’s

house, stuff something into his clothes, get on the bicycle, and ride across Brown’s front

yard onto the street.

       The daycare parent followed the male on the street in her car until he turned

around and looked directly at her and then rode over a berm and into the store parking lot.

The parent returned to Brown’s house and found Brown and the Boldens dead in an

upstairs bedroom.1 The store surveillance video confirmed that at about 6:30 a.m. a

person rode a bicycle from the store parking lot, crossed the parking lot, and then traveled

toward the residential neighborhood where Mosley had instructed M.T. to meet him.

Two other witnesses who were driving to work at approximately 6:30 that morning

observed a male wearing a dark-colored hooded sweatshirt riding a bicycle in the same

residential neighborhood.

       Mosley returned to the designated location, put the bicycle in the SUV, and sat in

the driver’s seat. M.T. noticed that Mosley had blood on his face and asked Mosley what

had happened. Mosley, who was wearing black leather gloves over blue rubber gloves,

responded, “I f---ed up,” and placed a 9mm handgun on the center console.




1
      The medical examiner who performed the autopsies of all three victims
determined that each victim had been shot twice in the head at close range and that these
wounds had caused their deaths.


                                             5
      During the return trip to St. Louis, M.T. observed Mosley dispose of various items

of evidence. When they stopped for gas, Mosley instructed M.T. to purchase orange

juice and a map, and then Mosley poured out the orange juice and had M.T. fill the bottle

with gas. At a different gas station, Mosley used the gas to burn his clothes, shoes, and

gloves. Investigators later located the remains of some of the burned material near a

dumpster. M.T. saw Mosley flick ammunition out of his window, try to break the gun

apart using a wooden-handled hammer, and then throw the gun into a river. Mosley also

wiped down the bicycle and left it in a grassy area near another gas station. During a

search of Mosley’s vehicle, investigators found a wooden-handled hammer and four blue

latex gloves. The State introduced cell tower records to show that M.T.’s cell phone

travelled between St. Louis and Brooklyn Park on the dates in question.

      The defense presented an alibi witness who testified that he saw Mosley at a

family party in St. Louis on the night of April 8, 2012. Two women who lived with

Mosley testified, however, that they did not see Mosley or his SUV from the evening of

April 8, 2012, until later in the day on April 9, 2012.       Additionally, the defense

introduced cell phone records to establish that Mosley’s cell phone did not leave the

St. Louis area during the relevant time period. Specifically, Mosley’s cell phone records

showed that a call was made from his cell phone in St. Louis to one of the women on

April 9, 2012, at 11:42 a.m. This woman testified, however, that she did not speak to

Mosley at that time. The State argued that Mosley’s cell phone was available to anyone

who lived with him in St. Louis.




                                           6
       After trial, the district court filed findings of fact and conclusions of law, which

found Mosley guilty of all nine counts of first-degree murder. Mosley was convicted of

three counts of first-degree premeditated murder and sentenced to three consecutive

terms of life imprisonment without possibility of release. This direct appeal followed.

       On appeal, Mosley argues that he is entitled to a new trial because (1) the district

court erred in admitting the daycare parent’s in-court identification of him; (2) the district

court erred in excluding his proposed expert testimony regarding the problems with

eyewitness identification; and (3) the prosecutor committed misconduct.

                                              I.

       Mosley first argues that the district court erred in admitting, over his objection, the

daycare parent’s in-court identification of him on the ground that it violated his right to

due process. According to Mosley, the in-court identification of him was the product of

an unnecessarily suggestive environment that deprived him of a fair trial. Additionally,

Mosley argues that the identification testimony should have been excluded under Minn.

R. Evid. 403 because the testimony lacked reliability and was unfairly prejudicial. We

will address each argument in turn.

                                             A.

       We must first determine whether the admission of the in-court eyewitness

identification violated Mosley’s right to due process. If the evidence was erroneously

admitted in violation of Mosley’s constitutional right to due process, we then review

whether the constitutional violation was harmless. See State v. Ferguson, 804 N.W.2d

586, 590 (Minn. 2011).


                                              7
       Recently, the United States Supreme Court considered whether the admission of

eyewitness identification testimony violated a defendant’s due process rights when the

identification was made under suggestive circumstances not arranged by law enforcement

officers. Perry v. New Hampshire, __ U.S. __, 132 S. Ct. 716, 722 (2012). The Court

held that eyewitness identification testimony only implicates a defendant’s due process

rights when the identification of the defendant by the witness was arranged by law

enforcement under unnecessarily suggestive circumstances. Id. at __, 132 S. Ct. at 730.

Because the eyewitness identification at issue in Perry was not arranged by law

enforcement—the eyewitness had spontaneously identified the defendant who was

standing in a parking lot—the Court concluded that the admission of the identification at

trial, “without a preliminary judicial assessment of its reliability,” did not violate the

defendant’s right to due process. Id. at __, 132 S. Ct. at 722, 730.

       In this case, the daycare parent testified on direct examination that she saw an

African-American male wearing a grey hooded sweatshirt bicycling towards Brown’s

house on the morning of the murders; and that she saw the same man come out of

Brown’s house, get back on the bicycle, and pedal down the street and over a berm

leading to a store parking lot. During the morning recess, the daycare parent approached

a witness advocate from the Hennepin County Attorney’s Office and told her that she

recognized Mosley as the person she had seen on the bicycle. When her testimony

resumed, the prosecutor asked the daycare parent if she recognized Mosley, and she

responded that Mosley was the person she had seen on the bicycle on the morning of the

murders. She stated: “I saw his profile on different occasions. And then I saw him


                                             8
looking at me. And [Mosley] was the person I saw.” Further, she stated that she

recognized Mosley “[t]he minute [she] walked into the court[room]” and that she was 98

percent sure that Mosley was the man she had seen.

       We conclude that Mosley’s due process claim lacks merit. The daycare parent

spontaneously identified Mosley the moment she walked into the courtroom without any

involvement by law enforcement. The State did not show her a picture of Mosley or ask

her to identify Mosley prior to trial. Because the State did not arrange the witness’s

identification of Mosley, the admission of the identification did not violate Mosley’s due

process rights.

                                              B.

       Mosley next argues that the in-court identification testimony should have been

excluded under Minn. R. Evid. 403 on the ground that it lacked reliability and was

unfairly prejudicial. Mosley failed to object to the identification testimony on the ground

that the testimony should have been excluded under Rule 403, and therefore Mosley

forfeited the right to raise the issue on appeal, subject to the application of the plain-error

doctrine.2 See State v. Goodloe, 718 N.W.2d 413, 420 (Minn. 2006). Under the plain-


2
       Mosley objected to the identification testimony only on the ground that it violated
his due process rights. But to properly preserve a claim that evidence should be excluded
under the Minnesota Rules of Evidence, a defendant must “timely object[]” and “state[]
the specific ground of objection.” Minn. R. Evid. 103(a)(1) (emphasis added). Because
the specific ground for Mosley’s objection did not include Rule 403, we review Mosley’s
claim for plain error. See State v. Brown, 792 N.W.2d 815, 820 (Minn. 2011) (“We are
unable to determine the specific ground for the objection from the context and, therefore,
analyze whether the district court erred in admitting Brown’s omnibus-hearing statement
under a plain-error analysis.”).


                                              9
error doctrine, an appellant may be entitled to a new trial provided that he establishes

there was (1) an error; (2) that is plain; and (3) the error must affect substantial rights.

State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998). If the appellant satisfies the first

three prongs of the plain-error doctrine, “we may correct the error only if it ‘seriously

affect[s] the fairness, integrity, or public reputation of judicial proceedings.’ ” State v.

Crowsbreast, 629 N.W.2d 433, 437 (Minn. 2001) (quoting Johnson v. United States, 520

U.S. 461, 467 (1997)); accord State v. Bahtuoh, 840 N.W.2d 804, 811 (Minn. 2013).

       To satisfy the first prong of the plain-error doctrine, Mosley must establish an

error, which is a “[d]eviation from a legal rule . . . unless the rule has been waived.”

United States v. Olano, 507 U.S. 725, 732-33 (1993). Here, the legal rule at issue is

Minn. R. Evid. 403, which provides that relevant evidence may be excluded if its

probative value is substantially outweighed by the danger of, among other things, unfair

prejudice. Because such a determination is within the discretion of the district court,

Mosley must show that the district court abused its discretion in admitting the challenged

testimony to satisfy the first prong of the plain-error doctrine. See State v. Hayes, 826

N.W.2d 799, 807-08 (Minn. 2013); State v. Schulz, 691 N.W.2d 474, 477 (Minn. 2005).

       Generally, evidence is relevant and has probative value when it logically tends to

prove or disprove a material fact in issue. Schulz, 691 N.W.2d at 478 (citing State v. Lee,

282 N.W.2d 896, 901 (Minn. 1979)). Rule 403 “favors admission of relevant evidence,

as the probative value of the evidence must be ‘substantially’ outweighed by prejudice.”

Schulz, 691 N.W.2d at 478. We have explained that the term “prejudice” in Rule 403

“does not mean the damage to the opponent’s case that results from the legitimate


                                            10
probative force of the evidence; rather, it refers to the unfair advantage that results from

the capacity of the evidence to persuade by illegitimate means.” State v. Cermak, 365

N.W.2d 243, 247 n.2 (Minn. 1985) (citation omitted) (internal quotation marks omitted);

see Schulz, 691 N.W.2d at 479 (concluding that incriminating voicemail message “had a

devastating impact on the defendant’s case” but there was no support in the record that

the evidence gave the State an unfair advantage).

       Mosley relies on State v. Ostrem, 535 N.W.2d 916 (Minn. 1995),3 to argue that the

daycare parent’s identification testimony should have been excluded under Rule 403 on

the ground that it lacked reliability. Specifically, Mosley relies on a five-factor reliability

test that we used in Ostrem to analyze a claim that unnecessarily suggestive identification

testimony violated the defendant’s due process rights.4 Ostrem, 535 N.W.2d at 921. But

we have never used the Ostrem reliability test to determine whether eyewitness

identification testimony is admissible under Rule 403. Instead, we have repeatedly

concluded that the reliability of identification testimony goes to the weight to be afforded

3
       This case does not require us to determine what effect, if any, Perry has on the
five-factor test expressed in Ostrem. Perry v. New Hampshire, ___ U.S. ___, 132 S. Ct.
716 (2012).
4
       These five factors are:

       1. The opportunity of the witness to view the criminal at the time of the
          crime;
       2. The witness’ degree of attention;
       3. The accuracy of the witness’ prior description of the criminal;
       4. The level of certainty demonstrated by the witness at the photo display;
       5. The time between the crime and the confrontation.

Ostrem, 535 N.W.2d at 921.


                                              11
the testimony by the trier of fact, not to its admissibility. E.g., State v. Otten, 292 Minn.

493, 494, 195 N.W.2d 590, 591 (1972) (“ ‘The factors affecting the reliability of

eyewitness testimony, such as time for observation and circumstances under which the

observation was made, go to the weight to be accorded the testimony, not to its

admissibility.’ ” (quoting State v. Senske, 291 Minn. 228, 230, 190 N.W.2d 658, 660

(1971))); accord State v. Farmer, 179 Minn. 516, 518, 229 N.W. 789, 790 (1930).

Ostrem did not consider the admissibility of the identification under Rule 403. As a

result, the Ostrem reliability test, 535 N.W.2d at 521, does not apply when determining

whether evidence should be excluded under Rule 403.

       We conclude that the district court did not abuse its discretion under Rule 403 by

admitting the daycare parent’s in-court identification testimony. The testimony was

relevant to prove the identity of the shooter and to prove Mosley’s guilt, and the

probative value of the identification testimony was not substantially outweighed by unfair

prejudice. See Minn. R. Evid. 403. The testimony of an eyewitness that the accused is

the person who committed the crime is a legitimate means of proving a defendant’s guilt.

See State v. Sutton, 272 Minn. 399, 401, 138 N.W.2d 46, 47 (1965) (“The law is clear.

Opinion evidence is admissible as proof that an accused is the person who committed the

offense.”). Any details affecting the reliability of the testimony, such as the opportunity

of the witness to observe the defendant at the time in question, go to the weight the trier

of fact should give to the testimony, not to its admissibility.

       Consequently, we reject Mosley’s argument that the daycare parent’s

identification testimony should have been excluded under Rule 403. Mosley’s claim fails


                                              12
to satisfy the first prong of the plain-error test, and it is thus not necessary for us to

consider the remaining prongs of the plain-error doctrine. See Hayes, 826 N.W.2d at

808.

                                              II.

       Mosley argues that the district court abused its discretion, and violated his

constitutional right to present a complete defense, by excluding his proposed expert

testimony regarding the problems with eyewitness identification. A criminal defendant

has the constitutional due process right to call and examine witnesses, including expert

witnesses, subject to the limitations imposed by the rules of evidence. State v. Hanks,

817 N.W.2d 663, 667 (Minn. 2012).            Rulings concerning the admission of expert

testimony generally rest within the sound discretion of the district court and will not be

reversed absent a clear abuse of discretion. Id.; see also State v. Anderson, 789 N.W.2d

227, 234-35 (Minn. 2010).

       Minnesota Rule of Evidence 702 governs the admission of expert testimony. It

provides, in part, that “[i]f scientific, technical, or other specialized knowledge will assist

the trier of fact to understand the evidence or to determine a fact in issue, a witness

qualified as an expert by knowledge, skill, experience, training, or education, may testify

thereto in the form of an opinion or otherwise.” Minn. R. Evid. 702. Under this rule,

expert testimony is admissible if, among other things, it is helpful to the trier of fact.

State v. Obeta, 796 N.W.2d 282, 289 (Minn. 2011).

       We have addressed the admissibility of expert testimony regarding the accuracy

of eyewitness identifications in several cases. E.g., State v. Miles, 585 N.W.2d 368


                                              13
(Minn. 1998); State v. Helterbridle, 301 N.W.2d 545 (Minn. 1980). In Helterbridle, we

concluded that whether to admit expert testimony regarding eyewitness identification was

within the discretion of the district court. 301 N.W.2d at 547. We reasoned that there are

a number of safeguards available to prevent convictions of the innocent based on

unreliable eyewitness identification, and that these safeguards alleviate the need to

require district courts to admit expert testimony on the issue.         Id.   The available

safeguards include effective cross-examination, persuasive closing arguments, and jury

instructions on the factors relevant to evaluating eyewitness identification testimony. Id.

       In Miles, we again considered whether the district court had abused its discretion

in excluding expert testimony regarding the accuracy of eyewitness identification. 585

N.W.2d at 371-72. We held that the district court did not abuse its discretion because

many of the safeguards listed in Helterbridle were present. Miles, 585 N.W.2d at 372.

Specifically, the defendant was not prosecuted until police had more than an eyewitness

identification linking him to the crime; the jury members were queried during voir dire

about the frailties of eyewitness identifications and were instructed by the district court

on the factors to take into account when assessing eyewitness testimony; the eyewitnesses

were all cross-examined as to the reliability of their testimony; and in closing arguments

defense counsel urged the jury to view the identifications with skepticism. Id.5



5
       In three other cases we also affirmed the district court’s decision to exclude expert
testimony regarding the problems with eyewitness identifications. State v. Barlow, 541
N.W.2d 309, 313 (Minn. 1995); State v. Saxton, 331 N.W.2d 240, 242 (Minn. 1983);
State v. St. John, 299 N.W.2d 737, 738 (Minn. 1980).


                                            14
       With these principles in mind, we turn to Mosley’s proposed expert testimony.

When the State rested, Mosley’s counsel proffered the following expert testimony on

eyewitness identification:

       He would testify to that the human mind is not like a recorder. We don’t
       record things like you would a video and play it back. There are certain
       things that disrupt our memory. You know, as briefly covered by Detective
       Ryan, when someone is reaching for something, the lighting conditions, the
       ability to describe facial features, the suggestiveness of certain photos or
       potential displays . . . . And that is what is expected that expert would
       testify to.

Mosley’s counsel acknowledged that the “unreliability” of the daycare parent’s in-court

identification would be part of its closing argument. The court offered Mosley the

opportunity to recall and further cross-examine the daycare parent regarding her

identification, but defense counsel declined the opportunity. The court subsequently

denied Mosley’s request to present expert testimony on eyewitness identification stating,

“I don’t believe that that expert can assist me in this trial or has anything to add.”

       We conclude that the district court did not abuse its discretion in excluding

Mosley’s proposed expert testimony for two reasons. First, Mosley did not establish that

the proposed expert testimony would be helpful to the trier of fact. Mosley’s proffer was

very general and nonspecific to his case. Instead, the proffered testimony related only to

how memory is fallible and eyewitness identification is unreliable. Notably, the proposed

testimony did not go to the particular circumstances surrounding the daycare parent’s

perceptions on the morning of April 9, 2012, or the circumstances surrounding her in-

court identification. See State v. Barlow, 541 N.W.2d 309, 313 (Minn. 1995) (concluding

that a district court did not abuse its discretion in excluding expert testimony on the


                                              15
problems with eyewitness identification where “the proffered testimony did not go to the

reliability of any particular witness or the particular circumstances of the identification,

and its potential for helpfulness was minimal at best”).

       Second, most of the safeguards listed in Helterbridle and Miles were present in

this case to protect Mosley against unreliable in-court identification testimony.

Specifically, the State charged Mosley with a crime and had substantial evidence of his

guilt long before the daycare parent first identified him; defense counsel cross-examined

the daycare parent, and the court gave Mosley an opportunity to recall the daycare parent

and ask her further questions after the State had rested. Thereafter, defense counsel

challenged the reliability of the daycare parent’s identification testimony in closing

arguments, arguing that the daycare parent was unable to identify to police any unique

characteristics of the suspect, that she focused on what she thought to be a weapon in the

suspect’s hand and not his face, and that her testimony regarding the type of pants the

suspect was wearing differed from another witness’s account. The district court, acting

as trier of fact, was presumably aware of the standard cautionary instruction on

eyewitness identification testimony, 10 Minn. Dist. Judges Ass’n, Minnesota Practice—

Jury Instruction Guides, Criminal, CRIMJIG 3.19 (5th ed. 2006).

       Mosley argues, however, that the district court misapplied Rule 702’s helpfulness

standard by treating it as a subjective rather than an objective test. Specifically, Mosley

contends that the district court failed to consider the admissibility of the expert testimony

from an evidentiary standpoint, and instead considered its admissibility from a personal

standpoint. It is true that the standard for assessing the helpfulness of proposed expert


                                             16
testimony under Rule 702 is an objective standard. See State v. Dao Xiong, 829 N.W.2d

391, 396 (Minn. 2013) (“An expert opinion is helpful if the members of the jury, having

the knowledge and general experience common to every member of the community,

would be aided in the consideration of the issues by the offered testimony.” (citation

omitted) (internal quotation marks omitted)).      Here, the district court applied the

helpfulness test and concluded that the proffered expert testimony did not go beyond

common knowledge and would not be helpful to the fact-finder.

      In sum, the district court did not abuse its discretion in excluding Mosley’s

proposed expert testimony on the problems with eyewitness identifications. As a result,

Mosley’s right to present a complete defense was not infringed by the exclusion of the

proposed expert testimony.

                                           III.

      Finally, Mosley argues that he is entitled to a new trial because of prosecutorial

misconduct in eliciting three types of inadmissible character evidence. Because Mosley

did not object to the conduct at issue, 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); State v. Martin, 773 N.W.2d 89, 104 (Minn. 2009). 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). An error is plain if it is

clear or obvious; this means an error that violates or contradicts case law, a rule, or an

applicable standard of conduct. Ramey, 721 N.W.2d at 302. If plain error is established,

the burden then shifts to the State to demonstrate that the error did not affect the


                                            17
defendant’s substantial rights. Matthews, 779 N.W.2d at 551; Ramey, 721 N.W.2d at

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 (citation omitted) (internal quotation marks

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.’ ”

State v. Crowsbreast, 629 N.W.2d 433, 437 (Minn. 2001) (quoting Johnson v. United

States, 520 U.S. 461, 467 (1997)).

       It is generally misconduct for a prosecutor to “knowingly offer inadmissible

evidence for the purpose of bringing it to the jury’s attention.” State v. Milton, 821

N.W.2d 789, 804 (Minn. 2012) (citation omitted) (internal quotation marks omitted). But

when evidence is admissible under the Minnesota Rules of Evidence, a prosecutor does

not commit misconduct by introducing the evidence at trial. See State v. Swaney, 787

N.W.2d 541, 560-61 (Minn. 2010) (concluding a prosecutor did not commit misconduct

by eliciting certain testimony because the evidence was relevant and admissible). We

will separately examine Mosley’s three arguments.

                                             A.

       Mosley argues that the prosecutor improperly elicited inadmissible character

evidence that Mosley was likely a drug dealer. Specifically, he argues that the prosecutor

elicited testimony from M.T. that Mosley was talking about drugs when they stopped at

another residence prior to leaving St. Louis; and that when asked by the prosecutor why




                                             18
he thought they were going to Minnesota, M.T. responded that he thought they were

going to get drugs.

       During M.T.’s direct examination, the State asked him where he met Mosley on

April 8, 2012, prior to leaving for Minnesota. M.T. responded that they met at a mutual

friend’s house and that the conversation there was about “drugs.” Later during direct

examination, the State asked M.T. if he knew where Mosley was driving, and M.T.

responded that he did not know, but that at some point during the drive he asked Mosley

where they were going, and Mosley responded “sota,” and that it was M.T.’s assumption

that they were going to Minnesota to “get drugs.”

       Assuming without deciding the reference to drugs in M.T.’s direct examination

was plain error, we conclude that the testimony did not affect Mosley’s substantial rights.

Although the testimony was largely irrelevant, it was very limited. Moreover, the other

evidence that supported the conviction was overwhelming.          This evidence included

W.H.’s testimony regarding Mosley’s motive; M.T.’s detailed testimony placing Mosley

near the scene of the crime at the time of the murders, his testimony that Mosley returned

with blood on his face, and that Mosley then disposed of various pieces of incriminating

evidence during the journey back to St. Louis; the daycare parent’s testimony that she

saw Mosley on a bicycle in front of Brown’s house and then saw him leave Brown’s

house moments before she discovered the bodies of the three victims; and the various

surveillance videos and eyewitness testimony that corroborated M.T.’s and the daycare

parent’s accounts.




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                                             B.

       Mosley argues that the prosecutor improperly elicited testimony that he lived with

and engaged in sexual relationships with three women; that the three women were all

pregnant with Mosley’s children; that Mosley did not have his own bedroom in his

residence but slept in whatever room and with whichever girlfriend suited him at the

time; and that there were several small children living at his residence. Mosley contends

that this testimony constituted irrelevant character evidence “designed to paint Mosley as,

at best, lecherous and irresponsible and, at worst, a criminal.”

       The State elicited testimony from T.W., one of the women that lived at Mosley’s

residence, regarding his domestic relationships and children. Later during T.W.’s direct

examination, the State elicited testimony that the three women had their own bedrooms at

Mosley’s house and that Mosley stayed “wherever he wanted,” sleeping in one bedroom

one night and in another the next. The State elicited similar testimony from M.W.,

another woman who lived at Mosley’s residence.

       Mosley’s defense was that he was in St. Louis and not in Brooklyn Park on the

date in question. A witness testified for the defense that he saw Mosley at a family party

in St. Louis on the evening of April 8, 2012, and that Mosely was still at the party when it

was dark outside. The State responded with the testimony of T.W. and M.W. that they

did not see Mosley on the evening of April 8 or the morning of April 9. The fact that

Mosley slept in the women’s rooms, and yet the two women did not see him during the

time in question, was relevant to rebut Mosley’s alibi defense.




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      Mosley also introduced evidence that his cell phone called one of these women on

the morning of April 9 from St. Louis to establish that he was in St. Louis at the time.

The evidence that multiple women and children lived at Mosley’s residence was relevant

to show that any of the individuals in the house could have made the call on Mosley’s

cell phone. Because the cell phone was not password protected, even the small children

in the house could have made the call while playing with the phone.

      On this record, it was not plain error for the prosecutor to elicit the testimony

regarding Mosley’s living arrangements and domestic relationships.

                                           C.

      Finally, Mosley argues that the prosecutor committed misconduct by introducing

an exhibit containing Mosley’s text messages. The exhibit in question contained 2,785

text messages sent or received by Mosley between October 17, 2011, and April 13, 2012.

Mosley concedes that many of the messages are banal, but contends that some of the

messages are sexually graphic and highly inflammatory.

      The State contends that the exhibit is relevant to establish Mosley’s motive. W.H.

testified, and her phone records confirmed, that Mosley texted her 13 times on April 5,

2012, and she texted him 4 times. The messages from Mosley included “sis that’s life in

jail,” and “we family sis this not the way.” These messages reveal that Mosley was

aware of the pending first-degree criminal sexual conduct charges filed against him, and

he wanted W.H. to make them go away.

      Even though W.H.’s phone records showed that she received 13 messages from

Mosley on April 5, there were no messages recovered from Mosley’s phone that were


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either received from or sent to W.H. on April 5, 2012. The fact that none of the text

messages between Mosley and W.H. were recovered from Mosley’s phone indicates that

he deleted them, which incriminated Mosley because the content of the messages went to

his motive.

       Although we conclude that the record of Mosley’s text messages was clearly

relevant to prove motive, we are nonetheless troubled that the prosecutor chose not to

redact some of the messages. Specifically, some of the text messages contain graphic

sexual references and possible references to prostitution. The content of all of Mosley’s

text messages was not necessary for the underlying purpose of proving that Mosley

deleted the messages sent to and received from W.H.

       Assuming without deciding that the State’s failure to redact the content of some of

Mosley’s text messages constituted plain error, we conclude that the State has established

that any error did not affect Mosley’s substantial rights. When considering whether an

error affected a defendant’s substantial rights, “we consider ‘the strength of the evidence

against the defendant, the pervasiveness of the improper suggestions, and whether the

defendant had an opportunity to (or made efforts to) rebut the improper suggestions.’ ”

State v. Hohenwald, 815 N.W.2d 823, 835 (Minn. 2012) (quoting State v. Davis, 735

N.W.2d 674, 682 (Minn. 2007)).

       Here, the evidence against Mosley was strong. Moreover, the prosecutor did not

rely on the content of the inflammatory text messages. The State did not elicit any

testimony regarding the content of Mosley’s text messages. Instead, the State focused




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exclusively on the relevant evidence from the exhibit—namely, that Mosley had deleted

all texts from and to W.H. dated April 5, 2012.

      Finally, the district court made detailed findings of fact and referenced significant

evidence pointing to Mosley’s guilt. The court did not, however, reference any of the

allegedly inadmissible character evidence.        Consequently, there is no reasonable

likelihood that the content of the text messages had a significant effect on the judge’s

conclusion of guilt. We therefore hold that Mosley is not entitled to a new trial based on

alleged prosecutorial misconduct.

      Affirmed.




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