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State of Minnesota v. Dao Xiong

April 24, 2013

STATE OF MINNESOTA, RESPONDENT,
v.
DAO XIONG, APPELLANT.



SYLLABUS BY THE COURT

SYLLABUS 1. The district court properly admitted a medical examiner's expert testimony that, based on his autopsy of the victim, the victim's manner of death was homicide. 2. A firearms examiner's expert testimony that the gun used to shoot the victim could not be discharged without pulling the trigger was properly admitted by the district court because the testimony was based on tests that the firearms examiner performed on the gun used to shoot the victim and the testimony was relevant to a contested issue of fact.

The opinion of the court was delivered by: Wright, Justice.

Washington County Wright, J.

Office of Appellate Courts

Affirmed.

OPINION

Appellant Dao Xiong was found guilty by a jury of first-degree premeditated murder, Minn. Stat. § 609.185(a)(1) (2012), second-degree intentional murder, Minn. Stat. § 609.19, subd. 1(1) (2012), and second-degree unintentional murder while committing a felony, Minn. Stat. § 609.19, subd. 2(1) (2012), arising out of the death of Youa Ty Lor. On appeal, Xiong seeks reversal of his convictions and a new trial based on the district court's admission of expert testimony offered by a medical examiner and a firearms examiner. As to both, Xiong argues that the testimony was erroneously admitted because it improperly intruded on the fact-finding role of the jury. Xiong, who did not object to the testimony at trial, argues that admission of the testimony was plain error affecting his substantial rights. Our careful review of the record establishes that the district court did not err. We, therefore, affirm Xiong's conviction.

I.

Youa Ty Lor, a car enthusiast who had recently moved with his family from Pennsylvania to Minnesota, decided to sell his Nissan 350Z in order to obtain money to start an auto-repair business. Lor asked his wife to post an advertisement on Craigslist for the car, which he stored in a friend's garage. The advertisement listed several modifications that had been made to the car and itemized the cost of each modification.

When Xiong saw the Craigslist advertisement, he decided to steal the car. The car's twin turbo engine was of particular interest to Xiong. Xiong planned to strip Lor's car and use the parts in a Nissan 350Z that Xiong already owned.

On September 6, 2010, Xiong sent several text messages to his friend, Keng Thao. In those messages, Xiong asked about removing a twin turbo engine. After answering Xiong's questions, Thao inquired by text message, "y u asking, got somethin in mind?" Xiong replied, "Yeah. Stealing a turboed z and stripping it and putting the stuff in mines." Thao asked, "lol, ha-ha where u gonna find a turbo z n how u gonna take it?" "Dont worry bout that. U wanna help? lol," Xiong responded. Thao's reply stated: "after we get me my winter tires lol." The two men continued to exchange text messages about when they planned to "do mines," apparently referring to the two schemes-getting winter tires for Thao and stealing and stripping the "turbo z" for Xiong.

Xiong purchased a prepaid cell phone on September 7, 2010. That same day, he sent another message from his personal phone to Thao, asking "U wanna kill a guy with me?" Thao responded, "just let me know lol." Xiong called Lor that evening from the prepaid cell phone. The next day, Xiong and Thao met Lor at the home of Lor's friend. They looked at Lor's Nissan 350Z, which he stored at that location. That evening, Xiong sent a text message to Thao advising, "Imma do it bro."

Xiong next contacted Lor on September 9, 2010, again using the prepaid cell phone. Xiong met Lor at the location where the Nissan 350Z was stored. This time Xiong went alone and brought a .40 caliber semi-automatic handgun. Xiong told Lor that he wanted to buy the car, but he did not have the purchase money with him. Xiong wanted to test drive the vehicle. If he liked it, Xiong proposed, they could go to his house where he would retrieve the money and pay for the car. Lor first drove Xiong to an auto shop where Lor worked so that Lor could show Xiong additional items available for sale with the car. When Xiong and Lor left the auto shop in the 350Z, Xiong drove east on Highway 36. After driving for some time, as a ploy to get Lor out of the car, Xiong asked Lor if he heard a "rubbing noise." Xiong pulled over and parked the car on the right shoulder of the road, and the two men left the car to determine the source of the noise.

After discussing the car, Xiong claimed he had to relieve himself. Xiong fabricated this excuse to create the opportunity to move the gun from his jacket to his pants pocket. Xiong next asked to use Lor's cell phone and pretended to call Driver and Vehicle Services about the title to the car. Then Xiong pulled the gun on Lor. In his later statement to the police, Xiong gave two explanations-he fired ...


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