pr e-Miranda silence in the state’s case-in-chief was erroneous.” 466 N.W.2d 425, 428 (Minn.App.1991). Relying on Dunkel, appellant argues that the district court abused its discretion in allowing the officer to comment on his failure to reply to the letter. But Dunkel is distinguishable from the fact situation here because the pre-arrest silence discussed in Dunkel was counseled silence. Id. In contrast, the challenged testimony here was specifically limited to pre-coun-seled, pre-arrest, and pre-Miranda silence. Thus, the issue before us is whether pre-counseled, pre-arrest, and pr e-Miranda silence is admissible in the state’s case-in-chief. This is an issue that has not been definitively decided by the Minnesota Supreme Court. See State v. Jones, 753 N.W.2d 677, 688-89 (Minn.2008) (<HOLDING>). The state urges us to follow the Eight
holding that state constitution prohibits substantive use of prearrest silence holding that admission of the defendants prearrest silence before the defendant testified was not plain error because neither the minnesota supreme court nor the federal courts have conclusively resolved the issue holding that there can be no plain error where neither we nor the supreme court has addressed an issue holding that the government can use prearrest silence for impeachment purposes against a defendant because no government action induced the silence holding that substantive use of prearrest silence is contrary to fifth amendment