County Office of Appellate Courts
Ellison, Attorney General, Saint Paul, Minnesota; Karin
Sonneman, Winona County Attorney, Winona, Minnesota; and
Scott A. Hersey, Special Assistant Winona County Attorney,
Saint Paul, Minnesota, for respondent.
Cathryn Middlebrook, Chief Appellate Public Defender, Leslie
J. Rosenberg, Assistant Public Defender, Saint Paul,
Minnesota, for appellant.
State presented evidence sufficient to prove beyond a
reasonable doubt that appellant discharged a firearm
"toward" a building.
prosecutor did not commit prosecutorial misconduct when
reminding the jury of its duty to decide the case based on
the evidence, rather than on the emotional appeals made by
defense counsel during closing argument.
Appellant's pro se claims are without merit.
Ricky Darnell Waiters shot two customers in a bar parking
lot, killing one and wounding the other. He was charged and
convicted of several offenses, including first-degree felony
murder, attempted first-degree felony murder, and drive-by
shooting (the underlying felony). On appeal, Waiters argues
that the evidence was insufficient to prove that he
discharged a firearm "at or toward" a building or
vehicle-a necessary element of drive-by shooting. He also
argues that the prosecutor engaged in prosecutorial
misconduct when she argued during her rebuttal that
Waiters's closing argument was trying to play on the
jury's emotions. Finally, Waiters raises three additional
arguments in his pro se supplemental brief. We conclude that
there is sufficient evidence in the record for a reasonable
jury to find that Waiters discharged a firearm
"toward" a building, the prosecutor did not commit
prosecutorial misconduct, and Waiters's pro se arguments
are without merit. Accordingly, we affirm.
facts of this case center on a bar parking lot located in
Winona and depicted below:
features of the parking lot are relevant here: (1) on the
north side of E.B.'s Corner Bar is a door facing the lot;
(2) on the western edge of the lot is a house with a privacy
fence that separates the house from the parking lot; (3) on
the northern edge of the lot is an alley that provides access
into the parking lot; (4) on the eastern edge of the lot is a
semitrailer that is parked parallel to Ewing Street; (5) an
approximately 9-foot gap exists between the front of the
semitrailer and the rear wall of the bar; and (6) two covered
picnic tables are located near the back door of the bar,
which is approximately 18 feet from Ewing Street.
this scene in mind, we turn to the events of the early
morning of July 27, 2016. At approximately 1:00 a.m., Waiters
pulled into the parking lot of E.B.'s Corner Bar using
the alley entrance on the northern edge of the lot. As
Waiters parked his car, two of the bar's customers
approached Waiters's vehicle and told him he was parked
the wrong way.Waiters then put his car in reverse, pulled
back into the alley, and turned right onto Ewing Street.
After driving a few yards, Waiters stopped his car at the
9-foot gap between the semitrailer and the bar. According to
several eyewitnesses, when Waiters reached the gap, he pulled
out a gun, and, sweeping from left to right, fired six shots
toward two groups of bar customers. The first group ...