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State v. DuBray

Court of Appeals of Minnesota

October 15, 2013

State of Minnesota, Respondent,
v.
Jossiye Marvin DuBray, Appellant.

UNPUBLISHED OPINION

Mille Lacs County District Court File No. 48-CR-12-544.

Lori Swanson, Attorney General, James B. Early, Assistant Attorney General, St. Paul, Minnesota; and Janice S. Jude, Mille Lacs County Attorney, Mille Lacs, Minnesota (for respondent).

David W. Merchant, Chief Appellate Public Defender, Benjamin J. Butler, Assistant Public Defender, St. Paul, Minnesota (for appellant).

Considered and decided by Kalitowski, Presiding Judge; Chutich, Judge; and Harten, Judge.[*]

KALITOWSKI, Judge.

Appellant Jossiye Marvin DuBray challenges his convictions of terroristic threats and stalking. Appellant argues (1) there is insufficient evidence to support the verdicts; (2) the district court erred by failing to instruct the jury on all elements of the crime of stalking; (3) the terroristic threats conviction must be vacated because it is based on the same conduct as the stalking conviction; and (4) the district court abused its discretion by imposing as conditions of probation that appellant avoid all use or possession of alcohol and submit to random testing. We affirm.

DECISION

I.

Appellant argues that there is insufficient evidence to support the jury's verdicts finding him guilty of terroristic threats and stalking. We disagree.

"When considering a claim of insufficient evidence, we conduct a painstaking review of the record to determine whether the evidence and reasonable inferences drawn therefrom, viewed in a light most favorable to the verdict, were sufficient to allow the jury to reach its verdict." State v. Hohenwald, 815 N.W.2d 823, 832 (Minn. 2012) (quotation omitted). In conducting that review, we must assume "the jury believed the state's witnesses and disbelieved any evidence to the contrary." State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989). We 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 the defendant was guilty of the charged offense. Bernhardt v. State, 684 N.W.2d 465, 476-77 (Minn. 2004).

A conviction based on circumstantial evidence receives "heightened scrutiny" on appellate review. State v. Al-Naseer, 788 N.W.2d 469, 473 (Minn. 2010). But when the state introduced direct evidence on each element of an offense, we do not apply the heightened standard. State v. Porte, 832 N.W.2d 303, 309 (Minn.App. 2013).

Terroristic threats

"Whoever threatens, directly or indirectly, to commit any crime of violence with purpose to terrorize another . . . or in a reckless disregard of the risk of causing such terror" is guilty of the crime of terroristic threats. Minn. Stat. § 609.713, subd. 1 (2012). "Crime of violence" means any "violent crime, " as defined in Minn. Stat. § 609.1095, subd. 1(d) (2012). Id. Third-degree assault is a violent crime. Minn. Stat. § 609.1095, subd. 1(d). We have previously held that "[a] threat to 'kick the sh-t out of a person, throw someone down the stairs, and/or hit someone" constitutes a threat to commit third-degree assault. State v. Jorgenson, 758 N.W.2d 316, 322 (Minn.App. 2008), review denied (Minn. Feb. 17, 2009).

Appellant argues the state presented only circumstantial evidence on the crime-of-violence element and, therefore, the heightened standard of review is appropriate here. We disagree.

Direct evidence is "[e]vidence that is based on personal knowledge or observation and that, if true, proves a fact without inference or presumption." Bernhardt, 684 N.W.2d at 477 n.11 (quotation omitted). Here, the state introduced direct evidence of appellant's threat: L.D. testified that during her phone call with appellant, appellant threatened to "beat the sh-t out of" her. We therefore decline to apply the heightened standard of review.

Under the applicable standard of review, we assume the jury believed L.D.'s testimony and disbelieved any evidence to the contrary. Moore, 438 N.W.2d at 108. Therefore, the jury could reasonably find that appellant threatened to commit a crime of violence. See Jorgenson, 758 N.W.2d at 322 (holding "[a] threat to 'kick the sh-t out of a person" could be viewed as a threat to commit third-degree assault). Viewing the evidence in the light most favorable to the verdict, we ...


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