State of Minnesota v. Shane Joseph Gross - Criminal Appeal

This opinion is nonpre cedential except as pro vided by Minn. R. Civ. App. P. 1 36.01, subd. 1(c). STATE OF MINNES OTA IN COURT OF APP EALS A25-0434 State of Minnesota, Respondent, vs. Shane Joseph Gross, Appellant. Filed February 23, 20 26 Affirmed Ross, Judge Hennepin County District Court File No. 27 -CR- 23 -26113 Keith Ellison, Attorney General, St. Paul, Min nesota; and Mary F. Moriarty, Hennepin County Attorney, Matt hew D. Houg h, Assistant Count y Attorney, Minneapolis, Minnesota (for respon dent) Cathryn Middlebrook, Chief Appellate Public Defender, John Donovan, Assista nt Public Defender, St. Paul, Mi nnesota (for appellant) Considered and decide d by Ede, Presiding Judge; Ross, Judge; and Jo hnson, Judge. NONPRECEDENTI AL OPINION ROSS, Judge While Shane Gross w aited in jail to be tried on charges of drive - by shooting, ineligible possession of a firearm, and three counts of se cond - degree assault with a dangerous weapon, he made calls on a recorded telephone l ine ask ing a woman to “ hide” an unnamed item and complained that “Twin” and Twin’s “bitch” were cooperating wi th

2 police. The prosec utor told the jury during clo sing arguments that “T win” and “his b itch” were the victims in the car that had been chased, rammed by, and re peatedly shot at from the two cars that Gros s and his alleged acquain tance occupied. The pr osecutor also argued that the evidence establ ished that the gunshot v ictim testified truthfull y. In this appeal from his conviction on all counts, Gross argues that the district court abused its discretion by admitting evidence of the jail calls and that th e prosecutor’s closing argument cons tituted misconduct. Because t he district court did not abuse its disc retion by admitting evidence of the cal ls and the one remark that con stituted prosecutorial misconduct certai nly had no effect on the verdict, w e affirm. FACTS The mayhem initiating this case occurred in south Minn eapolis on a N ovember 2023 afternoon. A married couple, whom w e will call “Gary” and “Sarah” (names we h ave randomly chosen in the interest of protecting their privacy), were traveling in their car with a friend on Franklin Avenue. Gary navigated eventually onto 26th Street, when a white Ford Fus ion suddenly smashed into the rear of their car. Gary quic kly turned north onto Park Avenue, and a chase began. Gary raced north on Park Avenue. The Fusion pursued close ly behind. It repeatedly ramm ed Gary’s car. And as Gary ’s c ar entered the intersection of Park and Franklin Avenue, a grey Volks wagen Jetta slammed into it, T-boning the pa ssenger side of Gary’s car and joining t he chase. Gary continued to flee northbound. The Fusion chas e d from behind while the Jett a was positione d immediately along his passe nger side where Sarah

3 was sitting in the fr ont se at. Sara h looked from her window a t the Jetta and from about five feet away recognized it s driver, an acquaintance — Shane Gross. The chase continued wildly northward with the Fusion just behi nd and the Jetta immediately to the r ight of Gary’s car. That’s when Sarah heard ab out five gunshots r ing out from the Jetta. Some bullets pe netrat ed t heir fleeing car throu gh its doors. Anot her shattered a passenger window. And o ne round struck Sarah ’s hip. She told Gary that she was shot, a nd Gary turned quickly toward I nterstate 94 to escape. T he Fusion and Jetta gave way. Gary stayed on I - 94 until he reache d United Hospital, fro m which emergenc y- room staff rushed Sarah to Region s Hospital for urgent treatment. The bullet remains lodged near Sarah’s pelvis. Minneapolis police inv estigators interviewed Sarah and Gary at the hospital. Sarah initially denied knowin g who s hot her, but Gary interjecte d, “Tell the truth.” Sarah then told police that Shane Gross was the driver of the Jetta and the man who shot her. The state charged Gross with one cou nt of drive - by shooting i n violation of Minnesota Statutes sec tion 609. 66, subdivision 1 e(a)(2) (2022), one count of ineligible possession of a firearm in violation of Minneso ta Statutes section 624.713, subdivision 1(2) (Supp. 2023), and three counts of second - degree assault with a dangerous weap on in violation of Minnesota Statutes section 609.22 2, subdivision 1 (2022). During the ensuing tr ial, the district court ad mitted recorded portions of six pretrial telephone calls Gross made from jail, all of w hich arguably implicated him in the shooting. Two of them refere nce Gross’ s desire that s omething become hid den. Others seem to

4 reflect Gross’s attem pt to coach the listener on what to say to investigators and to express his anger that Sarah an d Gary were cooperatin g in the investigation a gainst him. In two of the calls, Gross directed one woman to have another woman “hide” something. Police had never found the gu n fired from the Jetta. Alm ost immediately after the first of tho se cal ls beg an, Gross sp oke rapidly, sayi ng, “I need yo u to call—I need yo u to get in touch with [a named woman] I need to get her nu mber.” After the fir st woman said she had spok en with the named woman “ yesterday,” Gros s spoke excitedly, “ You got her number? You get her number? You got he r number?” He continued, “Tell her I need to, um, I need to tell he r to hide that thing o ut there and sh i t just in c ase . . . they to ok my keys and they had a warrant for my car . . . t hey had a warrant for my car and they had a warrant for me.” Gross asked the fir st woman i f the assault charges a gainst him i nvolved a weapon, and when sh e said they did not, h e replied, “That’s bec ause they don’t ha ve nothing.” In the second of those calls, th e named woman c ame on the line and Gross asked her, “Did you do that what I said?” After the woman said, “Yup I did it,” Gross clarif ied, “You hid it?” The woman said, “Yeah,” and Gross added instructi ons to her: “Don’t get rid of it, but hide it.” Two other jail-call recordings captured Gro ss reacting to his criminal charges and complaining about Ga ry and Sarah. The criminal c harge s referred to Gary and S arah without naming the m. The c omplaint dubbe d Gary as “Victim 2.” It referenced Sarah, s tating, “Victim 1 was hit by one round in her lower back and was ta ken to the hospita l. ” And it revealed Sarah’s cooperation wit h police, stating, “Victim 1 recognized the driv er of the grey Volkswagen as SHANE JO SEPH GROSS . . . Defendant herein.” Gross angrily

5 declare d in the recorded call, “I jus t got my charge papers. Why is the bitch - ass bitch an d the bitch - ass [expletive male ] snitching on me?” He said, “They charged me for each [of the three people ] . . . in the ca r.” The first w oman asked Gross who was in the car, and Gross indicated that he had not know n that anyone other t han Gary and Sarah we re in the car, adding, “I gue ss they . . . picked up a person too.” I n a relate d recording that a lso focused on the criminal complaint, Gross said, “They both snitching on me. I’m r eading the paper. It says, ‘Victim 1 was hit by one round in her lower back and was taken to the hospital.’” He added, “ I’m reading it r ight now. Both of them doing it. They both snitching. They both saying it. Th ey both gotta come to c ourt.” The woman asked, “Twin and who?” Gross answered, “And his bitch.” Other recorded jail call s capture Gross saying, “I don’t know if you remember or not . . . listen to my drift, okay?” He m ade multiple stat ements directing a woman to “remember” certain fac ts about his whereabouts and other circumstances that, if be lieved, could help fabricate a n alibi defense. Sarah testified at trial, recounting t he incident summarize d above and identifyin g Gross as the Jetta’s driver and th e shooter. She pointed out Gary’s car and the two chasing cars in video footage of the chase capture d on a security camera. She also testified that Gross called Gary a fte r the shooting a nd threatened to kill them if they coope rated with police. Multiple investi gators also testified tha t Sarah’s st ory remained consisten t through a series of interviews and that Gr oss admitted to them that he drives a Jetta. The investigators shared photographic evidence of Gary’s and Gross’s damaged cars consiste nt

6 with Sarah’s testimo ny. They testif ied that they foun d.40- caliber discharged cartridge casings in Gross’s Jetta but had never locate d a gun. The prosecutor r elied on Gross’ s jail calls during his closing argumen t, contending that Gross’s directing others to hide “that th ing” explains why the investigators never recovered the firearm that had been fired from the Jetta. He also argued “Twin” and “his bitch” were Gary an d Sarah. The pr osecutor maintained too that Sa rah’s testimony was credible, stating, “She told you she wa s advised to tell the truth, and s o she did,” referring to Gary’ s ins truction to cooper ate with the p olice at the hospita l. He added, “I show [ed] that exhibit to show tha t she told the truth, ” aft er he replay ed the surveillance footage. The jury found Gross guilty on all counts. The district court fou nd that Gross qualified as a dangero us offender and depart ed upwardly from the presumptive sentence under the sentencing g uidelines, sentencing hi m to serve 144 mo nths in prison. Gross appeals. DECISION Gross offers two princ ipal arg uments on app eal to challenge his conviction. H e argues first that the dist rict court improperly admitt ed evidence of the jail calls in which he gave instructions to hide “that thing.” He argues sec ond that t he prosecutor commi tted misconduct in his closing argument by vouc hing for Sarah ’s credibili ty and by identifying Gary and Sarah as “ Twin” and “his bitch” when Gros s had not men tioned the “snitches” by name. Gross adds a third argument, whic h is that the cumulative effect of these errors warrants a new trial ev en if they individually do not. The argume nts fail.

7 I We first address Gros s’s contention that th e district court erroneously admitted evidence of the jail calls in which he dir ected the hiding of “tha t thing.” We review preserved objections to a district court’s e videntiary ruling s for an abuse of discretion and will only reverse when an erroneous evide ntiary ruling prejudiced the appellant’s defe nse. State v. Nunn, 561 N. W.2d 902, 906 – 07 (Minn. 1997). Gros s argues specifically that the district court abused its discretion by adm itting evidence of the jail ca lls about hiding an object because the evidence is not relevant and risks unfair prejudice by inviting the jury to speculate about what the “thing” is. For the following rea sons, we conclude that the evidence is neither irrel evant nor unfairly prej udicial. Evidence of Gross’s jailhouse - dir ected hiding of an object is certa inly relevant. Evidence is relevant if it tends to make a fact o f consequence more or less probable. Minn. R. Evid. 401. Thi s includes evi dence supporti ng logical infe rences a bout a triable factual issue. State v. Schulz, 691 N.W.2 d 474, 478 (Minn. 2005). The challenged call recordings were relevant for at least two reasons. The first reason is that the reco rdings could help the jury understand why p olice did not find a firearm inside Gross’s Jetta when they searched it nearly a week after the shooting, des pite the evidence that t he shooter had fired at Gary and Sarah from inside t he Jetta. See State v. Hallmark, 927 N.W.2d 281, 305 (Minn. 2 019) (explaining that eviden ce is relevant when it helps explai n the police investigation). The second reason is that a jailed defendant’s cryptically directing a person to hide any obje ct during the course of his criminal investigatio n implies the defendant’s attempt to conceal or suppress evidence, which is in turn relevant evidence of his consci ousness of guilt. State

8 v. Mayhorn, 720 N.W.2d 776, 78 3 – 84 (Minn. 2006) (explai ning that evidence demonstrative of a defendant’s co nsciousness of guilt i s relevant). The low bar for relevancy is easily met here. This does not end our i nquiry. Although r elev ant evidence is gen erally admissible, it should be excl uded if its probativ e value is s ubstantially outweighe d by its risk of unfair prejudice. Minn. R. Evid. 402, 403. We recognize the concern that a ris k of unfair prejudice might arise from juror s speculating about wh at “that thing” is and then punis hing Gross merely for directing another to hi de it. But there’s a difference between preventi ng unfounded speculation and allowing reasoned inferences. The jurors heard the calls w ith Gross’s barely shrou ded and repeated efforts to urge a witness to “r emember” (as i n wholly fabricate) factual detai ls that placed him som ewhere other than behind the wh eel of the Jetta during the chase and shooting. They heard him refer to those identified in the complaint as having “ snitched” on (as in truthfully rep orted) him for the s hooting. And they heard him a nswer the first woman’s que stion about who had been in Gary’s car by referencing Gary and Sarah rather than indicating that he did not kno w because he was not there. We evaluate risk of unfair prej udice in the context of the state’ s entire presentation of the evidence. See State v. Barajas, 817 N.W.2d 204, 221 – 22 (Minn. App. 2012), rev. denied (Minn. Oct. 16, 2012). And in this case, we see no risk that the jury would draw any unreasonable inferen ces about what Gr oss wanted to hide or that the jurors’ inferring that the “thing” was in fact a gun would result in a ny unfair prejudice to Gross’s defense.

9 II We next address Gross ’s argume nt that the prosecutor committed two acts of misconduct in his closing argument. We revie w unobjected - to prosecutorial miscon duct by applying a modified pl ain - error test. State v. Ramey, 721 N.W. 2d 294, 302 (Minn. 2006). Under that test, if the a ppellant identifies an error that is plain, the bur den shifts to the state to prove that the error did not affect the defendant’s substan tial rights. Id. If the state fails to meet that burden, we correct the er ror if doing so is necessary to ensure fairness and judicial integrity. Id. As applied to the two inc idents of alleged misc onduct in this case, the test ends at the first an d third steps, respec tively, because Gross i dentifies no error. Gross contends spec ifically tha t the prosecut or improperly argued based on facts not in evidence that Gr oss was referr ing to Sa rah and Gary during his jail calls whe n he railed angrily against “ Twin” and “his bitch.” The contention fails because prosecu tors may argue to jurors ba sed on reason ed inferences f rom the evidence. State v. M unt, 831 N.W.2d 569, 587 (Minn. 20 13). And the fact that Gross was r eferring to Gary and Sarah when he complained that “Twin ” and “his bitch” ha d “snitched” on h im is not just a reasonable inference, it seems to us to be the only reason able inference fro m the admitted evidence. The criminal complaint referred to “Victi m 2 ” as a man and to “Vic tim 1 ” as that man’s wife who had been sh ot and who identified Gross as the shooter. And Gross’s jailh ouse recordings demonstrate that, as he was readin g the criminal complai nt, he was accusing Victim 1 and Victim 2 of snitching. This beli es Gross’s argument th at the jury would have needed the criminal complaint against Gros s, which was not in evidence, to draw this

10 inference. The prosecutor did not arg ue facts not in evidence by m aking the challenged argument during his cl osing. Gross also contends that the prosecut or improperly vouc hed for Sarah’ s truthfulness in stating that she “was advised to tell the trut h, and so she did,” and that he presented the jury “that exhibit to show that she told the trut h[.]” We agree that this argument was error. Prosecutors may argue for a witness’s cre dibility in closing. State v. Martin, 773 N.W.2d 89, 106 (Minn. 200 9). But pros ecutors may no t personally vouch fo r a witness’s credi bility. Id. Declaring that Sara h “was advised to tell the truth, and so she did” was erro r because the unequivocal statement that s he “did” te ll the truth consists on ly of the prosecutor ’s opinion about her trut hfulness. See State v. Hobbs, 713 N.W.2d 8 84, 889 (Minn. App. 2006) (holding that a prosecutor stating that a witness “told you t he truth” qualifies as impermissible vouchin g), remanded mem. (Minn. Aug. 15, 2006) (concerning other grounds), aff’d (Minn. App. May 1, 200 7), rev. denied (Minn. J uly 17, 2007). This conduct is prosecutorial misconduct, and the error is pl ain. See Ramey, 721 N.W.2d at 302; State v. Lilienthal, 889 N. W.2d 780, 785 (Minn. 2017) (explaining that an error is plain if it violates established caselaw). T his holding shifts the b urden to the state to e stablish that the er ror was not prejudicial. The state has met this burden. The strength o f the state’s case against Gross was overwhelming, the prosecutor’s mis conduct was minimal, and Gross rebutted the misconduct directly. Se e State v. Portillo, 998 N.W.2d 242, 251– 5 2 (Minn. 2023); State v. Hill, 801 N.W.2d 646, 654 – 55 (Mi nn. 2011). The st ate’s evidence a gainst Gross made a very strong case for his guilt. Sarah, who was acquainted with Gross, saw him and

11 positively identified him as the Jetta ’s driver and her shooter. Gross angrily referred t o Sarah and Gary a s snitch es, no t as liars. Sarah reported to juror s that Gross had called and threatened their lives if they cooperate d with the invest igation. Police found bullet casin gs in Gross’s car, which matched Sar ah’s description and which jurors saw on vid eo chasing Gary’s car. In a panicky deportment, Gross i mmediately sought to know how to con tact someone whom he wanted to urge to hide an object, and he followed up from jail to assure himself that she had hid den the thing as h e had instructed. This and other evidence presented to the jury is more than enough for u s to conclude that the st ate presented strong evidence of Gross’s guilt. See Sta te v. Maye, 6 N.W.3d 103, 11 1 – 12 (Minn. 2024) (recognizing strong evidence of guilt in a single eyewitness ’s tes timony consistent wit h a police inter view, photo s showing damage to a car consistent with eyewitness’s account, and the defendant’s de ceit during the investi gation). T his factor weighs heavi ly against reversing. The misc onduct was also not pervasive. The supreme court has co ncluded that misconduct comprising one page of a 28 - page closing argu ment was not perva sive. State v. Segura, 2 N.W.3d 142, 162 – 6 3 (Minn. 2024). By co mparison, the prosecutor’ s slightly vouching statement w as only part of a two - line sente nce in the sta te’s 29 - page closing argument and rebuttal. We add that a de fendant’s having the opportunity to address a prosecutor’s improper closing statements miti gates prejudice, State v. Peltier, 874 N.W.2d 792, 806 (Minn. 2016), and in this case Gross not only had the rebuttal opportuni ty, he availed himself of it. His closing included arguments contesting the misco nduct and focused substantially on underminin g Sarah’s credibility. Cons idering the entire trial and

12 exploring the gravity of the prosecutor’ s statement in that c ontext, we hold that the erroneous statement di d not affect Gross’s substantial rights. III All that remains is Gross ’s argume nt that the cumulative effec t of the contested trial’s errors require s r eversal. See State v. Penkaty, 708 N.W.2d 185, 200 (Minn. 2006) (explaining the cumulat ive - error doctrine). But we have found only one error, and we have already considered its e ffect and rated it incons equential. Affirmed.