437 F.Supp.2d 1327 (2006)
Terry BENTLEY and Sandra Dillard, and as Executrices of the Estate of Dorothy Bentley, and Elaine Clemmer and Nancy Brown, Plaintiffs,
v.
CSX TRANSPORTATION, INC., Defendant.
Civil Action No. 2:05-CV-128-WCO.
United States District Court, N.D. Georgia, Gainesville Division.
June 26, 2006.
Donald L. Swift, III, John Michael McGarity, Elizabeth L. Clack-Freeman, Andersen Tate Mahaffey & McGarity, Lawrenceville, GA, for Plaintiffs.
James E. Gilson, Robert Edward Casey, Jr., Robert Sean McEvoy, Casey Gilson Leibel, Atlanta, GA, for Defendant.

ORDER
O'KELLEY, Senior District Judge.
The captioned case is before the court for consideration of defendant's motion to dismiss [10-1] pursuant to Federal Rule of Civil Procedure 12(b)(6).
I. Factual Background
On October 15, 2004, Dorothy Bentley was driving her vehicle southbound on Athens Street over a railroad grade crossing in Winder, Georgia. (Compl. ¶ 6.) At the same time, defendant's train was traveling westbound toward the same grade crossing. (Id. ¶ 7.) Upon entering the crossing, Ms. Bentley's vehicle was struck by defendant's train. (Id. ¶ 8.) She ultimately *1328 died from injuries received in the collision. (Id. ¶ 9.)
Plaintiffs are Ms. Bentley's surviving children and the executrices of her estate. (Id. ¶ 1-2.) They brought suit against defendant in the Superior Court of Barrow County, alleging that defendant is liable for the wrongful death of Ms. Bentley due to its negligence. (Id. ¶ 11.) Defendant removed the case to this court [1-1] pursuant to 28 U.S.C. §§ 1332 and 1441.
In the complaint, plaintiffs assert that defendant was negligent in, among other things, "failing to install adequate signal equipment at the crossing." (Id. ¶ 10.) Defendant now moves for dismissal of this claim for failure to state a claim upon which relief can be granted.
II. Standard for Motion to Dismiss
A motion to dismiss for failure to state a claim should not be granted "unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). The court "must take the complaint's allegations as true and read them in the light most favorable to the plaintiff[]." Duke v. Cleland, 5 F.3d 1399, 1402 (11th Cir.1993) (citation omitted). However, this court is not required to accept as true plaintiff's conclusions of law when considering a motion to dismiss but may make its own determinations of the legal issues. See Solis-Ramirez v. United States Dep't of Justice, 758 F.2d 1426, 1429 (11th Cir.1985). Consideration of matters beyond the complaint is improper. See Milburn v. United States, 734 F.2d 762, 765 (11th Cir.1984).
III. Defendant's Motion to Dismiss
In 1973, the Georgia Code of Public Transportation ("GCPT") was enacted "to revise, classify, consolidate, and repeal . . . other laws relating to all public roads [and] bridges, . . . and to establish new laws relating thereto. . . ." Kitchen v. CSX Transp., Inc., 265 Ga. 206, 207, 453 S.E.2d 712 (1995) (citing Ga. L.1973, p. 947; O.C.G.A. § 32-1-1 et seq.). The purpose and legislative intent of GCPT is "to provide a code of statutes for the public roads and other transportation facilities of the state, the counties, and municipalities of Georgia . . . [and] to provide an effective legal basis for the organization, administration, and operation of an efficient, modern system of public roads and other modes of transportation." O.C.G.A. § 32-1-2.
Georgia's common law provides generally that a railroad has the duty to exercise reasonable and ordinary care at public crossings and that it is a question for the jury as to whether and to what extent that duty required the railroad to maintain additional traffic control devices at these crossings. See Cent. Ga. Ry. v. Market, 200 Ga.App. 851, 854, 410 S.E.2d 437 (1991) (citing Isom v. Schettino, 129 Ga. App. 73, 75, 199 S.E.2d 89 (1973)). Under the GCPT, however, the duty to install adequate warning devices and signals at railroad crossings lies with the governmental body responsible for the road that crosses the railroad tracks. O.C.G.A. § 32-6-50. The statute provides, in relevant part:
(a) The department shall promulgate uniform regulations governing the erection and maintenance on the public roads of Georgia of signs, signals, markings, or other trafficcontrol devices, such uniform regulations to supplement and be consistent with the laws of this state. Insofar as practical, with due regard *1329 to the needs of the public roads of Georgia, such uniform regulations shall conform to the recommended regulations as approved by the American Association of State Highway and Transportation Officials.
(b) In conformity with its uniform regulations, the department shall place and maintain, or cause to be placed and maintained, such traffic-control devices upon the public roads of the state highway system as it shall deem necessary to regulate, warn, or guide traffic, except that the department shall place and maintain a sign for each railroad crossing at grade on the state highway system, warning motorists of such crossing, provided that each railroad company shall also erect and maintain a railroad crossbuck sign on its right of way at every such crossing. The department may remove or direct removal of all traffic-control devices and signs which are erected on the state highway system by any governing authority without the permission of the department.
(c) In conformity with the uniform regulations of the department: (1) Counties and municipalities shall place and maintain upon the public roads of their respective public road systems such traffic-control devices as are necessary to regulate, warn, or guide traffic except that counties and municipalities also shall erect and maintain a sign for each railroad crossing at grade on their respective county road or municipal street systems, warning motorists of such crossing. Furthermore, each railroad company shall erect and maintain a railroad crossbuck sign on its right of way at all such crossings. . . .
O.C.G.A. § 32-6-50(a)-(c). Additionally, the GCPT provides:
(a) It shall be unlawful for any person to erect, place, or maintain within the right of way of any public road any sign, signal, or other device except as authorized by subsection (d) of this Code section or as required or authorized by Code Section 32-6-50 or any other law.
O.C.G.A. § 32-6-51(a). Furthermore, the GCPT delegates the responsibility for installing protective devices on public roads to the governmental entity:
Whenever, in the judgment of the department in respect to the state highway system, a county in respect to its county road system, or a municipality in respect to its municipal street system, such protection is reasonably necessary for the safety of the traveling public, the department or the county or the municipality may order the protection of a grade crossing by the installation of protective devices.
O.C.G.A. § 32-6-200.
Defendant argues that the GCPT places the exclusive authority to install traffic control devices at public railroad crossings with the governmental body responsible for the public road that crosses the railroad tracks. Plaintiffs, however, claim that railroads still have a common law duty of care with respect to the installation of such traffic control devices. To determine whether this common law duty has been precluded by statute, the court must examine recent case law involving the GCPT.
This court previously addressed the question of whether O.C.G.A. §§ 32-6-50 *1330 and 32-6-51(a) abrogated the railroad company's common law duty to install traffic control and warning devices at grade crossings in CSX Transportation, Inc. v. Trism Specialized Carriers, Inc., 9 F.Supp.2d 1374 (N.D.Ga.1998). The court found that the GCPT superseded this state common law duty. 9 F.Supp.2d at 1379. This court based its decision, in part, on the Georgia Supreme Court's decision in Kitchen. See id. at 1376, 1379.
In Kitchen, the Georgia Supreme Court held that, pursuant to O.C.G.A. § 32-6-197(b), the county had the exclusive duty to maintain the public road and any warning devices thereon leading to the abandoned bridge that ran over the railroad track. 265 Ga. at 208, 453 S.E.2d 712. The Supreme Court then stated in a footnote that its holding was "bolstered by O.C.G.A. §§ 32-6-50 and 32-6-51(a), which place the exclusive duty on the governmental body to install and maintain traffic control devices on public roads (including railroad crossings), and which statutorily prohibit private entities, including railroads, from placing traffic control devices on the public roads." Id. at 208, n. 6, 453 S.E.2d 712.
Following this court's ruling in Trism, the Georgia Court of Appeals addressed the railroad's common-law duty to install protective devices at grade crossings on public roads in Evans Timber Company, Inc. v. Central of Georgia Railroad Company, 239 Ga.App. 262, 519 S.E.2d 706 (1999). The Georgia Court of Appeals determined that the GCPT precludes such a common-law cause of action against a railroad company. Id.
The Georgia Supreme Court most recently addressed the GCPT and its effect on common law duties owed by private citizens in Fortner v. Town of Register, 278 Ga. 625, 604 S.E.2d 175 (2004). In this particular case, the court confronted the issue of whether the GCPT precluded a common law action against a landowner with regard to the placement or maintenance of any structure that obstructed a clear view from a public road. 278 Ga. at 625-26, 604 S.E.2d 175. The Supreme Court determined that O.C.G.A. § 32-6-51(b)[1] did not change the common law duty to prevent vegetation from obstructing vision at a railroad crossing. Id at 627, 604 S.E.2d 175.
In Fortner, the Georgia Supreme Court also noted that its footnote in Kitchen regarding O.C.G.A. §§ 32-6-50 and 32-6-51 was dicta. Id. at. 626, 604 S.E.2d 175 (citing 265 Ga. at 208, n. 6, 453 S.E.2d 712). The court also noted that the Georgia Court of Appeals relied to some extent on the Kitchens dicta in its opinion in Evans Timber. Id. (citing 239 Ga.App. at 263-64, 519 S.E.2d 706). Thus, the Supreme Court stated that "[t]o the extent that the holding of Evans Timber is based on that dicta, it is overruled." Id. at 626, 519 S.E.2d 706.
Plaintiffs now argue that under Fortner railroads still have a common law duty of care with respect to the installation of protective devices at railroad crossings. Plaintiffs argue that the holding in Evans *1331 Timber that O.C.G.A. § 32-6-200 preempts the common law duty of railroads to install such devices has been overruled by Fortner. The Georgia Supreme Court, however, overruled Evans Timber only "No the extent that the holding . . . is based on . . . dicta [from the Kitchens footnoted" 278 Ga. at 626, 604 S.E.2d 175 (emphasis added). Thus, this court must determine to what extent the Court of Appeals' decision in Evans Timber was based on this dicta.
In Evans Timber, although the Court of Appeals noted that the Kitchens decision "provide[d] insightful guidance," the court based its opinion on the express language of the statute, trial testimony,[2] and the legislative intent behind the enactment of the GCPT.[3] 239 Ga.App. at 264-67, 519 S.E.2d 706. As Fortner overruled only the rationale of Evans Timber that relied upon the Kitchens dicta, Fortner did not overrule the underlying holding in Evans Timber: that the common law duty of railroads to initiate and authorize the installation of protective devices at grade crossings on public roads has been preempted by 0.C.G.A. § 32-6-200.
Moreover, the Fortner court did not reject the assertion that the GCPT makes it unlawful for a private entity to install traffic control devices on the public roadway. Rather, the Georgia Supreme Court contemplated whether a railroad company had a duty to initiate the installation of protective devices at grade crossings as opposed to a duty to actually install such devices without governmental authority. 278 Ga. at 626-27, 604 S.E.2d 175. The Georgia Supreme Court's discussion with respect to these duties, however, is dicta. The underlying issue in the case at hand, the duty to install protective devices at grade crossings on public roads, was not at issue in Fortner. See 278 Ga. 625, 604 S.E.2d 175 (addressing whether the GCPT precluded a common law action for failure to keep railroad right-of-way free of visual obstructions). Therefore, to the extent that Fortner addresses this duty and the preemption thereof under the GCPT, such language is merely dicta upon which this court cannot confidently rely.
After reviewing the case law and statutory construction, this court concludes that the common law duty for a railroad company to initiate the installation of protective devices at grade crossings on public roads has been abrogated by the GCPT. Under the plain language of O.C.G.A. § 32-6-51, the railroad company acts in violation of Georgia law if it erects traffic signals on a public road unless it is required or authorized to do so by O.C.G.A. § 32-6-51(d), O.C.G.A. § 32-6-50, or some "other law." Furthermore, the GCPT delegates responsibility for the installation of protective devices on public roads to the appropriate governmental entity. O.C.G.A. § 32-6-200.
The court also notes that neither the Trism rationale nor the case's holding have been overruled by the Fortner decision.[4] Furthermore, any discussion of *1332 O.C.G.A. §§ 32-6-50, 32-6-51(a), or 32-6-200 by the Georgia Supreme Court in Fortner is dicta. Therefore, this court concludes that the law remains that the GCPT precludes a claim against a railraod for failure to install protective devices at grade crossings on public roads. Thus, plaintiffs' claim against defendant for negligence in "failing to install adequate signal equipment at the crossing" fails as a matter of law. (Compl. ¶ 10(b).) Accordingly, defendant's motion to dismiss this claim under Rule 12(b)(6) is hereby GRANTED.
IV. Conclusion
Based on the foregoing, defendant's motion to dismiss plaintiffs' negligence claim for failure to install adequate signal equipment at the crossing is hereby [10-1] GRANTED.
NOTES
[1]  O.C.G.A. § 32-6-51(b) states in relevant part:

It shall be unlawful for any person to erect, place, or maintain in a place or position visible from any public road any unauthorized sign, signal, device, or other structure which . . . (3)[o]bstructs a clear view from any public road to any other portion of such public road, to intersecting or adjoining public roads, or to property abutting such public road in such a manner as to constitute a hazard to traffic on such roads.
[2]  "The testimony at trial showed that a railroad could not unilaterally install a protective device on a public road. Instead, the appropriate governmental entities first had to order and approve the device." Evans Timber, 239 Ga.App. at 265, 519 S.E.2d 706.
[3]  "[T]he comprehensive and pervasive legislation of the GCPT demonstrates the General Assembly's intent to preempt the common law duty of the railroad to install protective devices at public grade crossings." Id. at 267, 519 S.E.2d 706.
[4]  The Eleventh Circuit Court of Appeals affirmed this court's decision in Trism. CSX Transp., Inc. v. Trism Specialized Carriers, Inc., 182 F.3d 788 (11th Cir.1999).


                       UNITED STATES DISTRICT COURT
                       FOR THE DISTRICT OF COLUMBIA
____________________________________
                                     )
MIDDLE EAST FORUM,                  )
                                     )  Case No. 17-cv-0767 (RCL/GMH)
                  Plaintiff,         )
                                     )
v.                                   )
                                     )
U.S. DEPARTMENT OF HOMELAND )
SECURITY,                           )
                                     )
                  Defendant.        )
____________________________________)

                         MEMORANDUM OPINION AND ORDER

       In this case, Plaintiff Middle East Forum seeks information from Defendant United States

Department of Homeland Security (“Defendant” or “DHS”) pursuant to the Freedom of

Information Act (“FOIA”), 5 U.S.C. § 552. On March 5, 2018, resolving a dispute between the

parties on the rate of the government’s production of documents in response to Plaintiff’s FOIA

requests, the undersigned ordered the government to “process records responsive to Plaintiff’s

requests at a rate of at least 500 per month,” make its first production on March 30, 2018, and on

a rolling basis every 30 days until production is complete, as well as file periodic status updates.

Middle East Forum v. U.S. Dep’t of Homeland Security, 297 F. Supp. 3d 183, 187 (D.D.C. 2018).

       On April 30, 2018, Plaintiff claimed that the March 30, 2018 production was defective

because “all the records released [on that date] were previously released in November 2017, and

such re-release of material was not in keeping” with the order of March 5, 2018. [Dkt. 32, ¶ 3].

The parties have not resolved that dispute, and Plaintiff therefore sought the intervention of the

Court “to compel production of the ordered March 2018 release.” [Dkt. 33, ¶ 3; Dkt. 34 at 4].

Defendant explains that the Court need not consider Plaintiff’s application because, as noted in a
status report filed prior to the order of March 5, 2018, “the parties had agreed to prioritize a subset

of records consisting of 3,368 potentially responsive pages,” and the production of those

documents will be completed this month. [Dkt. 35 at 1].

       Defendant’s point is well-taken. Considerations of judicial efficiency counsel against the

Court wading into a dispute that will soon be resolved without its input. But Defendant’s argument

also indicates another reason to deny Plaintiff’s requested relief. Prior to ruling on the parties’

original dispute as to the rate of the government’s production of documents to Plaintiff. The Court

ordered the parties to “meet and confer to attempt to reduce the range of potentially responsive

documents” from the 27,000 that the government had previously identified. Minute Order (Jan.

25, 2018). In response, Plaintiff “proposed and agreed to further narrow its request by reducing

the number of custodians from five to three individuals,” and also “requested that [Defendant]

further prioritize review from those three individuals to records containing additional search terms

that [Plaintiff] provided.”    [Dkt. 25, ¶ 2].     Implementation of those requests resulted in

identification of 3,368 potentially responsive pages. Id., ¶ 3. It was in the context of that reduction

in scope to “approximately 3,400” responsive documents that the order of March 5, 2018, was

decided. Middle East Forum, 297 F. Supp. 3d at 194.

       There is no suggestion that the pages the government produced in its March 30, 2018

production were not from that collection of documents, culled in compliance with the parties’

agreement. And the government has adequately countered Plaintiff’s accusation that Defendant

“merely redid work already done and directed [P]laintiff to the original results” [Dkt. 34 at 3],

asserting that in response to the agreement on search terms and custodians, Defendant “ran the

revised search on all the potentially responsive records that had originally been located.” [Dkt. 35

at 1–2]. Rather, for the March production, it reviewed a 650-page document that comprised some

                                                  2

material that had previously been reviewed and some that had not. Id. The document had to be

evaluated to see what could be released, as well as to determine whether any of its subparts had

been released previously. Id. at 2. The government explains that it took “a significant amount of

time and effort to figure out that some of the records had already been released or withheld and to

ensure that its March production was consistent with prior releases.” Id. at 2.

       Because Defendant has complied with the order of March 5, 2018, the undersigned will

not grant Plaintiff’s request that the Court order Defendant to “properly process the 500 records it

should have for March 2018 and release such records subject to the appropriate exemptions to

FOIA.” [Dkt. 34 at 4].

       It is therefore

       ORDERED that the parties shall submit their July status report as directed in the order of

March 5, 2018; it is further

       ORDERED that, by August 10, 2018, the parties shall meet and confer and determine

whether additional productions or searches are necessary; it is further

       ORDERED that the parties shall submit a status report on or before August 10, 2018, to

report on the outcome of those discussions; it is further

       ORDERED that a status conference shall be held on August 14, 2018, at 11:00 a.m., in

Courtroom 6 at the E. Barrett Prettyman Courthouse.

       SO ORDERED.
                                                                  G. Michael Harvey
                                                                  2018.07.12 11:25:33
                                                                  -04'00'
Date: July 12, 2018                           ___________________________________
                                              G. MICHAEL HARVEY
                                              UNITED STATES MAGISTRATE JUDGE

                                                 3


924 N.E.2d 455 (2010)
235 Ill.2d 587
FAKHOURY
v.
PAPPAS.
No. 109412.
Supreme Court of Illinois.
January 1, 2010.
Disposition of Petition for Leave to Appeal[*] Denied.
NOTES
[*]  For Cumulative Leave to Appeal Tables see preliminary pages of advance sheets and Annual Illinois Cumulative Leave to Appeal Table.


                                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.

                                            19
                                             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.

                                             20
      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

                                           21
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

                                            22
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.

                                           23


        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                 AT KNOXVILLE
                        Assigned on Briefs February 23, 2010

              DANIEL LEE DRAPER v. STATE OF TENNESSEE

             Direct Appeal from the Criminal Court for Sullivan County
                        No. S45,106    R. Jerry Beck, Judge

              No. E2009-00952-CCA-R3-PC - Filed December 21, 2010

The petitioner, Daniel Lee Draper, appeals the Sullivan County Criminal Court’s denial of
his petition for writ of error coram nobis, arguing that the court should have appointed
counsel and afforded him an evidentiary hearing. Upon review of the record and the parties’
briefs, we affirm the judgment of the coram nobis court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court is Affirmed.

N ORMA M CG EE O GLE, J., delivered the opinion of the court, in which D. K ELLY T HOMAS,
J R., J., joined. J OSEPH M. T IPTON, P.J., filed a concurring opinion.

Daniel Lee Draper, Whiteville, Tennessee, Pro se.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney
General; and H. Greeley Wells, Jr., District Attorney General, for the appellee, State of
Tennessee.

                                        OPINION

                                 I. Factual Background

        We glean the following facts from the record before us and this court’s opinion on
appeal from the denial of post-conviction relief: In 2001, the petitioner was charged by
presentment in the Sullivan County Criminal Court with first degree premeditated murder,
first degree felony murder committed during the perpetration of aggravated child abuse, and
aggravated child abuse against the victim, his infant daughter. The State filed a notice of
intent to seek the death penalty. At some point during the investigation into the victim’s
death, the petitioner had given a confession to the police. During a pretrial suppression
hearing, the trial court ruled that the petitioner’s confession was voluntary and denied his
motion to suppress it. On September 26, 2002, the petitioner pled guilty to first degree
felony murder and aggravated child abuse, and the trial court sentenced him to concurrent
sentences of life and twenty-five years, respectively. Daniel Lee Draper v. State, No.
E2007-01485-CCA-R3-PC, 2008 Tenn. Crim. App. LEXIS 943, at *1 (Knoxville, Dec. 5,
2008), perm. to appeal denied, (Tenn. May 4, 2009).

        The petitioner filed a petition for post-conviction relief but voluntarily dismissed the
petition on September 8, 2005, when the trial court denied his motion to disqualify the
district attorney’s office. Id. at **1-2. He then filed a motion to reopen the petition on
August 22, 2006, but the trial court denied the motion. Id. at *2. This court denied the
petitioner’s application to appeal the trial court’s denial of the motion to reopen. Id. (citing
State v. Daniel L. Draper, No. E2006-02167-CCA-R28-PC, Sullivan County (Tenn. Crim.
App. Jan. 25, 2007) (order)). On May 14, 2007, the petitioner filed a petition for post-
conviction relief, alleging

              that he was entitled to relief because (1) the association between
              agents of the State and a member of the victim’s family led to
              “biased mishandling” of the case to the petitioner’s detriment,
              including coercion of an involuntary confession from the
              petitioner, (2) trial counsel had a conflict of interest with the
              petitioner because a member of the district attorney general’s
              staff was a former employee of trial counsel, and (3) he entered
              an unknowing and involuntary guilty plea after the State failed
              to disclose exculpatory evidence. The petitioner alleged that his
              claims were based upon newly discovered evidence which he
              said consisted of information from (1) depositions of members
              of the victim’s family that were taken in another action in May
              and June 2006, which detailed the extent of the involvement of
              the defendant’s former father-in-law, who was the victim’s
              grandfather, . . . in the investigation and association with a
              member of the district attorney general’s staff and a police
              investigator, and (2) the September 2005 investigation of the
              medical evidence by his previous post-conviction counsel, the
              import of which was that the medical examiner who conducted
              the victim’s autopsy gave conflicting opinions regarding the
              victim’s injuries and death and the significance of which the
              petitioner claimed he did not understand until he received a
              February 9, 2006 letter from his former counsel. The petitioner
              also alleged that his request for dismissal of his original

                                              -2-
                post-conviction claim was based upon his belief that he did not
                have sufficient evidence to prove his claims. He alleged that his
                claims were not previously determined because he never had a
                full and fair hearing on the merits, either in the proceedings on
                the first petition or in his unsuccessful attempt to reopen those
                proceedings.

Id. at **2-4.

        The post-conviction court dismissed the petition without appointing counsel or
conducting an evidentiary hearing, determining that the petition was barred by the one-year
statute of limitations and that the petitioner’s claims had been determined previously on the
merits by this court’s order dismissing the motion to reopen. Id. at *4. On appeal, this court
affirmed the post-conviction court’s dismissal of the petition. Id. at *11. Specifically, this
court concluded that the petitioner had one year from the date his judgments of conviction
became final, October 26, 2002, to file his petition for post-conviction relief. Id. at **6-7.
The petition, which was filed more than three years after that date was, therefore, time-
barred, and due process did not toll the statute of limitations. Id. at *7. This court noted that
although the petitioner raised claims of newly discovered evidence, the “typical framework”
for such claims was through a writ of error coram nobis and that it was inappropriate to
consider such claims in the post-conviction petition. Id. at **8-9.

        The petitioner filed a petition for writ of error coram nobis on February 3, 2009,
essentially alleging the same claims of new evidence that he had raised in the post-conviction
petition. The State argued in a written motion to dismiss that the petition was time-barred
by Tennessee Code Annotated section 27-7-103, which provides that a writ of error coram
nobis must be filed within one year after the judgments of conviction become final. The
State also argued that the evidence described in the petition was not newly discovered and
that the petitioner raised the same issues in his previous post-conviction petitions. The error
coram nobis court dismissed the petition without appointing counsel or conducting an
evidentiary hearing, holding that the petitioner was attempting to reopen the motion to
suppress his confession, that the evidence described in the petition was not new, that the
ineffectiveness of his trial counsel was not a proper ground for relief, and that he raised
similar issues in his petition for post-conviction relief. The court also held that the petition
was barred by the statute of limitations. The petitioner appeals, claiming that the coram
nobis court should have at least appointed counsel and conducted an evidentiary hearing.

                                         II. Analysis

                                   A. Statute of Limitations

                                               -3-
        The State maintains that the coram nobis court properly dismissed the petition because
the petitioner filed it more than one year after the judgments of conviction became final. We
note that the State properly preserved this issue by arguing in its motion to dismiss the
petition that the petitioner filed it well-outside the one-year statute of limitations. See Harris
v. State, 102 S.W.3d 587, 593 (Tenn. 2003) (stating that “the State bears the burden of
raising the bar of the statute of limitations as an affirmative defense”). The petitioner argues
for the first time on appeal that Tennessee Code Annotated section 27-7-103 has been
“repealed” by Tennessee Rule of Civil Procedure 60.02. Issues raised for the first time on
appeal are typically waived. State v. Adkisson, 899 S.W.2d 626, 635 (Tenn. Crim. App.
1994). However, we will briefly address the petitioner’s argument.

       Tennessee Code Annotated section 40-26-105(a) makes available to convicted felons
“a proceeding in the nature of a writ of error coram nobis, to be governed by the same rules
and procedure applicable to the writ of error coram nobis in civil cases.” Tennessee Code
Annotated section 27-7-101 provides for writ of error coram nobis in civil cases while
Tennessee Rule of Civil Procedure 60.02 states that writs of error coram nobis are
“abolished” in civil cases. However, as our supreme court has explained,

               Though the writ of error coram nobis in civil cases was
               superseded when Rule 60 of the Tennessee Rules of Civil
               Procedure became effective in 1971, the adoption of Rule 60 did
               not diminish or supersede the statute which extended the writ as
               an available remedy in criminal proceedings. . . . The
               anomalous result is that the writ of error coram nobis continues
               to be an available remedy in criminal actions, but the procedure
               governing the remedy is based upon the civil writ of error coram
               nobis which has been abolished for almost 28 years.

State v. Mixon, 983 S.W.2d 661, 668 (Tenn. 1999) (footnotes omitted). Therefore, coram
nobis claims in criminal cases remain subject to the one-year statute of limitations.

       Although the petition was filed outside the one-year statute of limitations, due process
can require tolling the statute. Workman v. State, 41 S.W.3d 100, 101 (Tenn. 2001). As
explained in Workman, a court must weigh the petitioner’s interest in obtaining a hearing to
present a later-arising ground for relief against the State’s interest in preventing stale and
groundless claims. Id. at 103. Courts should use the following three-step process to balance
these interests:

               (1) determine when the limitations period would normally have
               begun to run;

                                               -4-
              (2) determine whether the grounds for relief actually arose after
              the limitations period would normally have commenced; and

              (3) if the grounds are “later-arising,” determine if, under the
              facts of the case, a strict application of the limitations period
              would effectively deny the petitioner a reasonable opportunity
              to present the claim.

Harris v. State, 301 S.W.3d 141, 145 (Tenn. 2010) (quoting Sands v. State, 903 S.W.2d 297,
301 (Tenn. 1995)).

       The statute of limitations in this case normally would have begun to run on October
26, 2002, thirty days after the judgments of conviction became final. Therefore, the statute
of limitations would have expired on October 26, 2003, more than five years before the
petitioner filed his petition for writ of error coram nobis.

        Next, we must determine whether the petitioner’s grounds for relief arose after the
limitations period normally would have commenced. In his petition, the petitioner cites as
“new evidence” information contained in the Department of Children’s Services’ Service
Activity Report, the Sullivan County Sheriff Department’s investigative report, a two-page
statement given by the victim’s mother in 2001, and a 2002 letter from District Attorney
General H. Greeley Wells to the petitioner’s trial attorney. However, the petitioner
acknowledges that his defense counsel received those documents prior to his guilty plea.
“[T]he fact that the documents had indeed been disclosed to the defense prior to the
petitioner’s guilty plea establishes that the documents are not newly discovered evidence.”
Arthur W. Stamey, III v. State, No. E2009-00996-CCA-R3-CD, 2010 Tenn. Crim. App.
LEXIS 119, at *16 (Knoxville, Feb. 11, 2010). The petitioner’s remaining items of “new
evidence” include depositions given by various witnesses in the civil case in 2003, 2006, and
2007, and a letter written by the petitioner’s post-conviction attorney to the petitioner in
2006. Most of those documents were not available to the petitioner until after the one-year
statute of limitations had expired.

        Finally, we must determine if, under the facts of this case, a strict application of the
limitations period would effectively deny the petitioner a reasonable opportunity to present
his claims. According to the petitioner, he received some of the depositions from the civil
case in July 2006 and the letter from his post-conviction attorney in February 2006. He filed
a petition for post-conviction relief on May 14, 2007, ten months after he received the
depositions and fifteen months after he received the letter. It is evident from this court’s
opinion on appeal from the denial of post-conviction relief that the petitioner raised new

                                              -5-
evidence claims, including claims about information in the depositions and the letter, in his
post-conviction petition. This court noted in its opinion that the proper avenue for relief
regarding claims of new evidence was a writ of error coram nobis, not a petition for post-
conviction relief. This court affirmed the denial of post-conviction relief on December 5,
2008, and the petitioner filed his petition for error coram nobis shortly thereafter on February
3, 2009. The delay was not unreasonable, and due process tolled the statute of limitations
in this case.

                                      B. New Evidence

       The petitioner argues that the coram nobis court erred by denying his petition on the
merits but that in any event, he was entitled to the appointment of counsel and an evidentiary
hearing. The State contends that the court properly dismissed the petition because the
evidence at issue was not newly discovered. We conclude that the court properly dismissed
the petition.

        The writ of error coram nobis is a post-conviction mechanism that has a long history
in the common law and the State of Tennessee. See, e.g., State v. Vasques, 221 S.W.3d 514,
524-26 (Tenn. 2007). It is now codified in Tennessee Code Annotated section 40-26-105.
The writ “is an extraordinary procedural remedy . . . [that] fills only a slight gap into which
few cases fall.” State v. Mixon, 983 S.W.2d 661, 672 (Tenn. 1999). By its terms, the statute
is “confined” to cases in which errors exist outside the record and to matters that were not
previously litigated. Tenn. Code Ann. § 40-26-105(b). Where the case involves a matter that
has been previously litigated, the writ will not lie unless the petitioner demonstrates that he
was without fault in failing to present the evidence and that the evidence “may have resulted
in a different judgment.” Id.

       Our supreme court outlined the procedure that a trial court considering a petition for
a writ of error coram nobis is to follow:

              [T]he trial judge must first consider the newly discovered
              evidence and be “reasonably well satisfied” with its veracity. If
              the defendant is “without fault” in the sense that the exercise of
              reasonable diligence would not have led to a timely discovery of
              the new information, the trial judge must then consider both the
              evidence at trial and that offered at the coram nobis proceeding
              in order to determine whether the new evidence may have led to
              a different result.

                                              -6-
Vasques, 221 S.W.3d at 527. In determining whether the new information may have led to
a different result, the question before the court is “‘whether a reasonable basis exists for
concluding that had the evidence been presented at trial, the result of the proceeding might
have been different.’”             Id. (quoting State v. Roberto Vasques, No.
M2004-00166-CCA-R3-CD, 2005 Tenn. Crim. App. LEXIS 1100, at **36-37 (Nashville,
Oct. 7, 2005)). However, there are limits to the types of evidence that may warrant the
issuance of a writ of error coram nobis. See, e.g., State v. Hart, 911 S.W.2d 371, 375 (Tenn.
Crim. App. 1995). Aside from the fact that the evidence must be both admissible and
material to the issues raised in the petition,

              [a]s a general rule, subsequently or newly discovered evidence
              which is simply cumulative to other evidence in the record or
              serves no other purpose than to contradict or impeach the
              evidence adduced during the course of the trial will not justify
              the granting of a petition . . . when the evidence . . . would not
              have resulted in a different judgment.

Id. (citations omitted).

        In the context of a guilty plea, “in order for a writ to issue, the appellant [has] to
present newly discovered evidence which would show that his plea was not voluntarily or
knowingly entered.” Newsome v. State, 995 S.W.2d 129, 134. (Tenn. Crim. App. 1998).
Thus, the coram nobis court must consider the impact of the newly discovered evidence on
the validity of the petitioner’s plea. A decision whether to grant a writ rests within the sound
discretion of the coram nobis court. See Hart, 911 S.W.2d at 375.

        We are cognizant of the supreme court’s recent order granting a defendant’s
application to appeal a coram nobis case involving a guilty plea. Stephen Bernard Wlodarz
v. State, No. E2008-02179-SC-R11-CO, 2010 Tenn. LEXIS 697, at *1 (Knoxville, Aug. 25,
2010) (order) (stating that for purposes of supplemental briefing and oral argument, the court
was particularly interested in whether the writ of error coram nobis could be used to
challenge a guilty plea conviction). Irrespective of what the supreme court will hold in that
case, the petitioner in the instant case has failed to point to “new” evidence of actual
innocence within the meaning of the coram nobis statute. As stated previously, the defense
possessed the Department of Children’s Services’ Service Activity Report, the Sullivan
County Sheriff Department’s investigative report, the two-page statement given by the
victim’s mother, and the letter from District Attorney General H. Greeley Wells to the
petitioner’s trial attorney prior to the petitioner’s plea. Therefore, those documents do not
constitute new evidence. Regarding the remaining “new” evidence, i.e., the civil depositions
and the letter written by the petitioner’s post-conviction attorney, the petitioner claims that

                                              -7-
the evidence would have shown at trial that an inappropriate association existed between a
member of the victim’s family and the State; would have called into question the victim’s
actual cause of death; would have revealed that any one of ten other suspects, including the
victim’s mother, could have killed the victim; and would have shown at the suppression
hearing that the petitioner’s confession was the result of an illegal arrest. As the coram nobis
court noted in its dismissal of the petition, the petitioner’s “theory seems to go to cross
examination points if he had gone to trial.” Evidence used simply to impeach or contradict
evidence that was presented at the suppression hearing or that would have been presented at
trial does not justify granting a petition for writ of error coram nobis. Regarding any claim
that the petitioner received the ineffective assistance of trial counsel, such an issue also is not
an appropriate ground for relief pursuant to a writ of error coram nobis. Domingo Ponce v.
State, No. M2004-02257-CCA-R3-CO, 2005 Tenn. Crim. App. LEXIS 540, at **7-8
(Nashville, May 31, 2005). The record reflects that the coram nobis court did not abuse its
discretion in dismissing the petition.

                                        III. Conclusion

       Based upon the record and the parties’ briefs, we affirm the judgment of the coram
nobis court.

                                                      ___________________________________
                                                      NORMA McGEE OGLE, JUDGE

                                                -8-


                                                                               FILE COPY

                                  M A N D A T E

TO THE 93RD DISTRICT COURT of HIDALGO COUNTY, GREETINGS:

Before our Court of Appeals for the Thirteenth District of Texas, on the 18th day of
June, 2015, the cause upon appeal to revise or reverse your judgment between

Castillo and Sons, Inc., Roberto                                             Appellants,
Castillo, and Robert Carlos Castillo,
                                            v.
Suretec Insurance Company                                                      Appellee.
CAUSE NO. 13-14-00745-CV                                         (Tr.Ct.No. C-2271-11-B)

was determined; and therein our said Court made its order in these words:

 THE THIRTEENTH COURT OF APPEALS, having considered this cause on appeal,
concludes the appeal should be DISMISSED. The Court orders the appeal DISMISSED
in accordance with its opinion.

We further order this decision certified below for observance.

                                        

WHEREFORE, WE COMMAND YOU to observe the order of our said Court of Appeals
for the Thirteenth District of Texas, in this behalf, and in all things have it duly
recognized, obeyed and executed.

WITNESS, the Hon. Rogelio Valdez, Chief Justice of our Court of Appeals, with the seal
thereof affixed, at the City of Edinburg, Texas this 25th day of November, 2015.

                                                 Dorian E. Ramirez, CLERK