This opinion is nonprecedential except as provided by Minn. R. Civ. App. P. 136.01, subd. 1(c).
STATE OF MINNESOTA IN COURT OF APPEALS A25-1217
State of Minnesota, Respondent,
vs.
Chad Alan Blood Milhausen, Jr., Appellant.
Filed July 6, 2026 Affirmed in part, reversed in part, and remanded Bond, Judge
Redwood County District Court File No. 64-CR-24-136
Keith Ellison, Attorney General, St. Paul, Minnesota; and
Shannon M. Ness, Redwood County Attorney, Marissa Pacheco, Assistant County Attorney, Redwood Falls, Minnesota; and
Travis J. Smith, Special Assistant County Attorney, Slayton, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Jessica Merz Godes, Assistant Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Johnson, Presiding Judge; Bond, Judge; and Rasmusson,
Judge. NONPRECEDENTIAL OPINION
BOND, Judge
In this direct appeal from the judgment of conviction for five counts of
nonconsensual dissemination of private sexual images, appellant argues that he is entitled
to a new trial due to the cumulative effect of prosecutorial misconduct. Alternatively,
appellant argues that the warrant of commitment is incorrect. We affirm appellant’s
convictions, but we reverse and remand for the district court to correct the warrant of
commitment.
FACTS
Appellant Chad Alan Blood Milhausen, Jr. and A.O. were in an “on and off”
relationship for about six years. Early in the relationship, when A.O. was 19 or 20, they
consensually created sexually explicit photos and videos together using Milhausen’s
cellphone. The relationship later ended and A.O. moved out of Milhausen’s apartment in
May 2023. A.O. asked Milhausen to delete the photos and videos from his phone.
In February 2024, A.O. learned that sexually explicit photos and videos of her had
been posted to the website FetLife. 1 A.O. created a FetLife account so she could view the
materials and saw that six photos and three videos had been posted between June and
October 2023 on an account she identified as Milhausen’s. A.O. recognized her face or
body in several of the photos, and, while she could not fully watch the videos without
paying, she was certain they were the same videos that Milhausen had recorded during
1 FetLife is a “fetish site” which operates as a type of social-media platform where users can upload photos and videos to their own profile and communicate with others.
2 their relationship. A.O. believed that Milhausen posted the materials because he was the
only person with access to them. A.O. never gave Milhausen permission to post the photos
and videos online.
A.O. felt “really disgusted, really embarrassed, [and] confused” that Milhausen had
publicly posted sexually explicit material of her without her consent. And A.O. was
especially concerned that the general availability of the photos might become known to her
kids and would affect her “ability to interact and be a part of [her] community.”
In March 2024, respondent State of Minnesota charged Milhausen with nine counts
of nonconsensual dissemination of private sexual images in violation of Minn. Stat.
§ 617.261, subd. 1 (2022). The state later dismissed four of the charges. The remaining
five charges proceeded to a jury trial, at which A.O., a police investigator, and a crime-
victim services coordinator testified consistently with the above facts.
Milhausen testified in his defense. Milhausen testified that he only had a FetLife
account because A.O. had introduced him to the site while they were still together. Even
though Milhausen and A.O. were not in a romantic relationship when he posted the
materials, Milhausen maintained that A.O. gave him permission to post the photos and
videos on FetLife.
The jury found Milhausen guilty of all five counts. The district court convicted
Milhausen of counts one and two and sentenced him to concurrent, 22-month sentences on
each count.
Milhausen appeals.
3 DECISION
I. Milhausen is not entitled to a new trial because of the cumulative effect of prosecutorial misconduct.
Milhausen argues that he is entitled to a new trial because the prosecutor engaged
in multiple instances of prosecutorial misconduct. The right to due process includes the
right to a fair trial. State v. Duol, 25 N.W.3d 135, 141 (Minn. 2025). Prosecutors are
ministers of justice who “have an affirmative obligation to ensure that a defendant receives
a fair trial, no matter how strong the evidence of guilt.” State v. Ramey, 721 N.W.2d 294,
300 (Minn. 2006). Consequently, prosecutorial misconduct may result in the denial of a
fair trial. Id. (“The overarching concern regarding prosecutorial misconduct . . . is that
[the] misconduct may deny the defendant’s right to a fair trial.”).
The standard of review for prosecutorial misconduct depends on whether the
defendant objected to the alleged misconduct. “For objected-to prosecutorial misconduct,
[courts] have utilized a harmless error test, the application of which varies based on the
severity of the misconduct.” State v. Wren, 738 N.W.2d 378, 389 (Minn. 2007). When a
defendant does not object to the alleged misconduct at trial, we apply the “modified plain-
error test.” State v. Portillo, 998 N.W.2d 242, 248 (Minn. 2023) (quotation omitted).
Under this test, the defendant must show that the prosecutor’s conduct constituted (1) error
and (2) that the error was plain. Id. “An error is plain if it [is] clear or obvious,” which is
usually established “if the error contravenes case law, a rule, or a standard of conduct.”
Ramey, 721 N.W.2d at 302 (quotation omitted).
4 Milhausen argues that the prosecutor engaged in prosecutorial misconduct during
the state’s case-in-chief by introducing evidence in violation of the district court’s pretrial
order. Milhausen also contends that the prosecutor committed misconduct during closing
argument by (1) misstating a witness’s testimony, (2) inflaming the passions and prejudices
of the jury, and (3) relying on facts not in evidence. Milhausen does not clearly apply
either the plain-error or the harmless-error standard of review, nor does he argue that any
individual instance of misconduct is sufficiently prejudicial to warrant reversal. Rather, he
asserts that the cumulative effect of the alleged prosecutorial misconduct deprived him of
a fair trial. We therefore first consider whether the conduct identified by Milhausen
constitutes prosecutorial misconduct under the applicable standard of review and we then
consider whether the cumulative impact of any misconduct entitles him to a new trial.
Violation of Pretrial Order
Milhausen argues that the prosecutor engaged in prosecutorial misconduct by
introducing an unredacted warrant of commitment contrary to the district court’s pretrial
order. A prosecutor engages in misconduct when they introduce evidence the district court
previously ruled inadmissible. See State v. Ray, 659 N.W.2d 736, 744-46 (Minn. 2003).
Before trial, Milhausen moved in limine to exclude any reference to his prior
convictions or, alternatively, to limit any such evidence to “unspecified convictions.” The
state moved to impeach Milhausen with evidence of three felony convictions. The district
court ruled that, if Milhausen testified, the state could impeach him with evidence that he
had a felony conviction for failure to register as a predatory offender as well as two other
unspecified felony convictions. But the district court ordered that the warrant of
5 commitment for the failure-to-register conviction must be “redacted to remove sentencing
components and/or dismissed charges.” Despite the court’s pretrial order, the state offered
the unredacted warrant of commitment as an exhibit at trial. The unredacted warrant of
commitment contained the length of Milhausen’s prison sentence and listed more than 15
sentencing conditions. The district court admitted the unredacted warrant of commitment
into evidence. 2
The state concedes that the prosecutor erred by failing to redact the warrant of
commitment as ordered by the district court. Because the district court’s pretrial order
ruled that the sentencing details contained in the warrant of commitment were inadmissible
and must be redacted, we agree that the prosecutor committed misconduct by introducing
the unredacted warrant of commitment. See id.
Closing Argument
Milhausen argues that the prosecutor engaged in multiple instances of prosecutorial
misconduct during closing argument. “In closing arguments, counsel has the right to
present to the jury all legitimate arguments on the evidence, to analyze and explain the
evidence, and to present all proper inferences to be drawn therefrom.” State v. Smith, 541
N.W.2d 584, 589 (Minn. 1996); see also State v. Porter, 526 N.W.2d 359, 363 (Minn.
1995) (“While the state’s argument need not be colorless, it must be based on the evidence
2 Milhausen did not renew his objection at the time the state offered the unredacted warrant of commitment. But because the district court made a definitive ruling on Milhausen’s motion in limine, the parties agree that Milhausen preserved his objection to admission of the unredacted exhibit. See Minn. R. Evid. 103(a) (providing that once the district court makes a definitive pretrial ruling admitting or excluding evidence, a party need not renew an objection to preserve a claim of error).
6 produced at trial, or the reasonable inferences from that evidence.” (quotation omitted)).
When analyzing a claim of prosecutorial misconduct during closing argument, we consider
the argument “as a whole,” not “selected phrases and remarks.” State v. Smith, 876 N.W.2d
310, 335 (Minn. 2016) (quotation omitted).
Milhausen contends that the prosecutor committed misconduct during closing
argument by (1) misstating a witness’s testimony, (2) making two statements that inflamed
the passions and prejudices of the jury, and (3) making three statements referencing facts
not in evidence. We consider each argument in turn.
Misstatement of Testimony
Milhausen argues that the prosecutor committed misconduct by intentionally
misstating the testimony of a former roommate of Milhausen and A.O., who testified as
part of the defense case. “It is unprofessional conduct for the prosecutor intentionally to
misstate the evidence or mislead the jury as to the inferences it may draw.” State v. Peltier,
874 N.W.2d 792, 805 (Minn. 2016) (quotation omitted).
During his testimony, the roommate stated that Milhausen told him that Milhausen
and A.O. had been on FetLife together in an attempt to keep their relationship together.
During closing argument, the prosecutor used the roommate’s testimony to highlight
inconsistencies in Milhausen’s testimony, stating:
One interesting thing, however, that [Milhausen] told [roommate], that he did not tell you, however, is that [Milhausen] was posting these images to save their relationship. Now that’s a different story than what we heard, isn’t it ladies and gentlemen? We heard that he posted these after the relationship ended, and she just allowed him to do that. That’s a different story.
7 Milhausen objected after closing arguments. The district court noted the objection
and, after discussing potential curative instructions with counsel, began its final
instructions by instructing the jury that statements of attorneys are not evidence.
On appeal, Milhausen maintains that the prosecutor intentionally misstated evidence
because, while the roommate testified that Milhausen said he and A.O. were on the website
together to attempt to keep their relationship together, the roommate did not testify that
Milhausen said he was “posting these images” to save the relationship. The state maintains
that the prosecutor’s remarks, while imprecise, were not an intentional mischaracterization
of the roommate’s testimony so as to constitute misconduct. We agree with the state.
The roommate testified that Milhausen told him that “it”—Milhausen’s FetLife
profile—was an attempt to keep Milhausen and A.O.’s relationship together. But it is
unclear from the roommate’s testimony whether “it” referred specifically to the creation of
the profile, the parties’ engagement with the profile, or the contents of the profile, which
included sexually explicit material. While the prosecutor’s characterization of the
roommate’s testimony may have been imprecise or even slightly inaccurate, the record
does not support a conclusion that the prosecutor intentionally misstated the evidence. See
State v. Barthman, 917 N.W.2d 119, 126 (Minn. App. 2018), aff’d on other grounds, 938
N.W.2d 257 (Minn. Feb. 5, 2020) (concluding that prosecutor did not intentionally mislead
the jury when they “slightly misstated” a witness’s testimony during closing argument).
To support his argument, Milhausen relies on State v. Young. In that case, the
prosecutor told the jury during closing argument that a witness testified that her relationship
8 ended in October, when in fact the witness testified that it ended in August. 710 N.W.2d
272, 281 (Minn. 2006). The prosecutor used the inaccurate date as support for their
argument that the defendant was the father of the witness’s baby, born the following July.
Id. The supreme court concluded that, while not ordinarily a basis for a claim of
prosecutorial misconduct, “absent the incorrect date, the prosecutor’s argument becomes
implausible.” Id.
The facts here are readily distinguishable. Unlike Young, the prosecutor’s
misstatement does not form the basis of an otherwise implausible argument. Rather, it
reflects a reasonable inference from the roommate’s testimony. See Smith, 541 N.W.2d at
589 (stating that during closing argument counsel may present to the jury “all legitimate
arguments on the evidence” and “all proper inferences to be drawn therefrom”). The
prosecutor therefore did not commit prosecutorial misconduct by intentionally misstating
the evidence.
Inflammatory Statements
Milhausen next contends that the prosecutor committed misconduct by inflaming
the jury’s passions and prejudices. A prosecutor “must refrain from making statements
that will inflame the passions or prejudices of the jury.” State v. Duncan, 608 N.W.2d 551,
556 (Minn. App. 2000), rev. denied (Minn. May 16, 2000). When credibility is a central
issue in a case, reviewing courts “pay special attention to statements that may inflame or
prejudice the jury.” State v. Morton, 701 N.W.2d 225, 236 (Minn. 2005).
Milhausen challenges two statements by the prosecutor as improperly inflaming the
passions and prejudices of the jury because the statements “improperly shifted the jury’s
9 focus” to an “emotionally charged narrative.” First, the prosecutor stated, “do you really
think a young mother in a small community wants these types of images shared with the
world? No, she doesn’t.” Second, the prosecutor argued to the jury that “pornography is
usually paid for. . . . Somebody got paid because people are watching these videos, and
you have to pay to watch the videos. It wasn’t [A.O.]. She wasn’t the one getting paid.”
Milhausen objected after closing arguments to the first statement characterizing A.O. “as
a young mother in a small community” but did not object to the second statement.
We are not convinced that the prosecutor’s statements constitute misconduct under
the standard for either objected-to or unobjected-to misconduct. The challenged statements
were couched within the prosecutor’s broader discussion about credibility and the
reasonableness of the defense’s theory. Immediately before describing A.O. as a young
mother in a small town, the prosecutor argued that Milhausen’s testimony that A.O.
consented to disseminating the images was not reasonable considering A.O.’s testimony
that she was concerned that posting the images would impact her children and her ability
to interact with her community. Considering the closing argument as a whole, we conclude
that the prosecutor’s argument was a permissible reference to inferences that could
reasonably be drawn from the evidence presented at trial. See Smith, 876 N.W.2d. at 335.
Accordingly, the prosecutor did not commit misconduct.
We reach the same conclusion regarding the second challenged statement. Multiple
witnesses testified that FetLife users must pay to watch video content and A.O. testified
that she made a temporary account for purposes of verifying the photos and videos but
otherwise did not use FetLife. After stating that someone was paid for the videos but it
10 was not A.O., the prosecutor argued, “[j]ust because lots of people consent to these things
being posted doesn’t mean A.O. does or did because she didn’t.” Given the context and
the contested trial issue of whether A.O. consented to the material’s dissemination, the
prosecutor’s argument was properly based on the evidence and the legitimate inferences to
be drawn from that evidence. See Smith, 541 N.W.2d at 589.
References to Facts Not in Evidence
Milhausen contends that the prosecutor improperly referred to facts not in evidence
during closing argument. As already discussed, a prosecutor’s closing argument must be
based on the evidence presented at trial and inferences reasonably drawn from that
evidence. Peltier, 874 N.W.2d at 804; see also State v. Bobo, 770 N.W.2d 129, 143 (Minn.
2009) (“Prosecutors may not make arguments that are not supported by evidence.”).
Milhausen’s argument concerns the prosecutor’s repeated references to matters that
the jurors had agreed to during voir dire. Specifically, the prosecutor stated:
So, how do we know [A.O.] had a reasonable expectation of privacy? I think that is pretty crystal clear, ladies and gentlemen. And I think you all agreed in [v]oir [d]ire that what happens in the bedroom is private.
....
It’s not uncommon for people to be sharing and taking these kind of images for each other, and that’s the agreement, right? And you all agreed to this yesterday, that once a relationship ends, those images should be deleted, or at the very least not shared with others, and that’s exactly what [A.O.] believed as well[.]
....
11 [Y]ou all agreed in [v]oir [d]ire when we talked yesterday morning that sexual images between two individuals should stay between two individuals. That is a universal truth. A universal truth. They are not to be shared or published without explicit consent. An explicit agreement. In this case, [A.O.] is saying that there was no consent given in this, on these images, and that is pretty clear[.]
Because Milhausen did not object to these statements, our review is for plain error.
Portillo, 998 N.W.2d at 248. “An error is plain if it [i]s clear or obvious,” which is usually
established “if the error contravenes case law, a rule, or a standard of conduct.” Ramey,
721 N.W.2d at 302 (quotation omitted). Here, we agree with Milhausen that the
prosecutor’s repeated references to “what jurors agreed to in voir dire” was plain error
because it contravenes well-established caselaw.
In State v. Bauer, the prosecutor referred to answers that jurors gave during voir
dire, including jurors’ answers about what they would do if someone asked them to sell
drugs. 776 N.W.2d 462, 475 (Minn. App. 2009). The prosecutor then used those answers
to attack the reasonableness of the defendant’s version of events. Id. We concluded that
while a prosecutor may urge the jury to rely on common sense, the prosecutor “improperly
asked the jurors to use the answers that they gave during voir dire as a means to determine
the credibility of [the] defense.” Id.
Like the prosecutor’s statements in Bauer, the prosecutor’s statements in this case
went beyond the evidence presented at trial by referencing jurors’ answers during voir dire
on the issue of whether, in their experience, sexually explicit images should be shared
outside a relationship. The prosecutor urged jurors to rely on those answers to assess
Milhausen’s credibility on the issue of whether A.O. consented to Milhausen’s
12 dissemination of the sexually explicit images and videos. In so doing, the prosecutor
plainly erred and committed prosecutorial misconduct. See id.; see also Wren, 738 N.W.2d
at 392 (holding that references to jurors’ responses in a pretrial jury questionnaire went
“beyond the evidence” and indicated prosecutorial misconduct).
Cumulative Error
Milhausen argues that the cumulative effect of the prosecutorial misconduct entitles
him to relief. A defendant “may be entitled to a new trial in rare cases where the errors,
when taken cumulatively, have the effect of denying the appellant a fair trial.” State v.
Fraga, 898 N.W.2d 263, 278 (Minn. 2017) (quotation omitted). “When considering a
claim of cumulative error, we look to the egregiousness of the errors and the strength of
the State’s case.” Id. We also consider whether the misconduct was isolated or mitigated
either by the district court’s instructions or defense counsel’s closing argument. Id.
(determining that errors at trial were not egregious on the basis that instances of misconduct
were “brief[]” and “accompanied by a limiting instruction”).
In this case, we identified two instances of prosecutorial misconduct: introducing
the unredacted warrant of commitment contrary to the district court’s pretrial order and
relying on facts not in evidence during closing argument. Milhausen does not argue that
either instance of misconduct was individually sufficiently prejudicial to warrant a new
trial. Our careful review of the record convinces us that this is not the “rare case” in which
the cumulative effect of the misconduct requires reversal. See id.
First, the errors were isolated. The state offered the unredacted warrant of
commitment for the sole purpose of impeachment and did not reference any of the
13 sentencing details when the document was introduced or during closing argument. See
Peltier, 874 N.W.2d at 806 (stating that a prosecutor’s improper remarks were not
egregious when the state did not “emphasize, or repeat, any of these points, and none of
them [were] central to the State’s case”). As far as the prosecutor’s argument referring to
the juror’s answers during voir dire, the prosecutor’s three statements consist of
approximately half a transcript page in a closing argument otherwise spanning over 15
pages. See id. (holding that improper statements spanning one full page were not egregious
in light of a 39-page closing argument).
Second, the district court’s instructions mitigated the effect of the prosecutor’s
misconduct. After the state introduced the unredacted warrant of commitment, the district
court instructed the jury that “[e]vidence concerning a prior conviction of Mr. Milhausen
is admitted only for the purpose of considering whether he’s telling the truth in this case.
You must not consider . . . this conviction as evidence of character or conduct, except as
you think it may reflect on credibility.” As part of its final instructions, the district court
told the jury that statements by the attorneys are not evidence and that the jury should
disregard any statements which differ from its recollection of the evidence and instead
decide “factual issues solely [based] on your own memory.” We assume the jury followed
the district court’s instructions. See State v. Taylor, 650 N.W.2d 190, 207 (Minn. 2022)
(stating that a court’s instruction that jurors should rely on their own recollections mitigated
any impact of a prosecutor’s misstatements during closing argument).
Finally, the supreme court has stated that courts should be more inclined to order a
new trial “in very close factual cases.” Fraga, 898 N.W.2d at 279. Here, the state’s
14 evidence was relatively strong. The contested issue at trial was whether Milhausen posted
the photos and videos without A.O.’s consent. A.O. testified that she never consented to
Milhausen posting the photos online and she asked Milhausen to delete them once the
relationship ended. The state’s evidence established that, while Milhausen’s FetLife
profile was created when the parties were together, Milhausen posted the sexually explicit
material after A.O. had moved out and the relationship was over. A.O.’s testimony that
she was concerned that her children and other young people in the community would learn
about the photos and videos—which tends to show that she did not consent to public
posting—was corroborated by text messages and the investigator’s description of A.O.’s
reaction and demeanor upon learning that the material was online. Thus, while the jury
had to weigh the parties’ relative credibility, this is not the close factual case that requires
reversal for cumulative error. See id. at 278.
In sum, we conclude that the cumulative impact of the two instances of prosecutorial
misconduct—introducing the unredacted warrant of commitment and referring to facts not
in evidence—did not sufficiently “tip the scales” to deprive Milhausen of a fair trial. See
id. (quotation omitted).
II. The district court erred by listing convictions for all five counts on the warrant of commitment.
Milhausen argues, alternatively, that the warrant of commitment incorrectly lists
convictions for all five counts. The state agrees that we should reverse and remand for
correction of the warrant of commitment. We also agree.
15 Minnesota law provides that, “[u]pon prosecution for a crime, the actor may be
convicted of either the crime charged or an included offense, but not both.” Minn. Stat.
§ 609.04, subd. 1 (2022). Courts may correct clerical errors in the warrant of commitment
at any time. Minn. R. Crim. P. 27.03, subd. 10.
The jury found Milhausen guilty of all five counts. The district court adjudicated
Milhausen guilty on counts one and two while stating it was “specifically and intentionally”
not entering convictions or imposing sentences on counts three, four, and five. Contrary
to the court’s oral pronouncement, however, the warrant of commitment lists convictions
for all five counts. Generally, appellate courts “look to the official judgment of conviction
in the district court file as conclusive evidence of whether an offense has been formally
adjudicated.” Spann v. State, 740 N.W.2d 570, 573 (Minn. 2007) (quotations omitted).
But when a district court’s orally pronounced sentence differs from the warrant of
commitment, the oral pronouncement controls. State v. Statloch, 643 N.W.2d 329, 331
(Minn. App. 2002). Because the warrant of commitment conflicts with the district court’s
oral pronouncement by erroneously stating that Milhausen was convicted of all five counts,
we reverse and remand to the district court to correct the warrant of commitment so it
reflects convictions on counts one and two only.
Affirmed in part, reversed in part, and remanded.