Hennepin County District Court File No. 27-CR-11-5352
Lori Swanson, Attorney General, St. Paul, Minnesota; and Michael O. Freeman, Hennepin County Attorney, Michael Richardson, Assistant County Attorney, Minneapolis, Minnesota (for respondent)
Bradford Colbert, Legal Assistance to MN Prisoners, St. Paul, Minnesota (for appellant)
Considered and decided by Kalitowski, Presiding Judge; Johnson, Chief Judge; and Hooten, Judge.
JOHNSON, Chief Judge
A Hennepin County jury found Joseph Duane Gustafson, Jr., guilty of racketeering, terroristic threats, kidnapping, controlled-substance offenses, possession of firearms by a prohibited person, and theft by swindle. Gustafson argues that the evidence is insufficient to sustain his conviction of racketeering and that the district court erred by admitting certain evidence offered by the state. Gustafson also argues that the district court erred at sentencing in determining the severity level of the racketeering offense and his criminal history score. Gustafson makes several additional arguments in a pro se supplemental brief. We affirm Gustafson's conviction but reverse and remand for a redetermination of his criminal history score. Therefore, we affirm in part, reverse in part, and remand for resentencing.
In February 2011, the state charged Gustafson with 13 offenses: racketeering, assault, terroristic threats, kidnapping, three counts of controlled-substance offenses, two counts of possession of a firearm by a prohibited person, and four counts of theft by swindle. The complaint alleged that Gustafson committed these offenses with other members of the "Beat-Down Posse" (BDP), a group of persons allegedly led by Gustafson and his father.
The case was tried for 12 days in March 2012. The jury found Gustafson not guilty of assault but found him guilty of the other 12 charges. The district court sentenced Gustafson to 210 months of imprisonment on the racketeering conviction and imposed concurrent sentences of shorter durations on the remaining 11 offenses. Gustafson appeals.
Gustafson argues that the evidence is insufficient to support his conviction of racketeering. He contends that the state's evidence is insufficient to prove that he participated in a pattern of criminal activity.
When considering a claim of insufficient evidence, this court conducts "a painstaking analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, " is sufficient to allow the jurors to reach a verdict of guilty. State v. Ortega, 813 N.W.2d 86, 100 (Minn. 2012) (quotation omitted). We must assume that "the jury believed the state's witnesses and disbelieved any evidence to the contrary." State v. Caldwell, 803 N.W.2d 373, 384 (Minn. 2011) (quotation omitted). "[W]e will not disturb the verdict if the jury, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude that the defendant was guilty of the charged offense." Ortega, 813 N.W.2d at 100.
A person is guilty of racketeering if the person "is employed by or associated with an enterprise and intentionally conducts or participates in the affairs of the enterprise by participating in a pattern of criminal activity." Minn. Stat. § 609.903, subd. 1(1) (2008). Two key terms in this statute are defined elsewhere in chapter 609. First, an "enterprise" is defined to mean "a sole proprietorship, partnership, corporation, trust, or other legal entity, or a union, governmental entity, association, or group of persons, associated in fact although not a legal entity, and includes illicit as well as legitimate enterprises." Minn. Stat. ...