                         This opinion will be unpublished and
                         may not be cited except as provided by
                         Minn. Stat. § 480A.08, subd. 3 (2014).

                               STATE OF MINNESOTA
                               IN COURT OF APPEALS
                                     A15-1352

                                   State of Minnesota,
                                      Respondent,

                                            vs.

                                 Cornelius Kinte Payton,
                                       Appellant.

                                   Filed July 25, 2016
                                        Affirmed
                                      Reilly, Judge

                              Stearns County District Court
                                File No. 73-CR-14-5802

Lori Swanson, Attorney General, Karen B. Andrews, Assistant Attorney General, St. Paul,
Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Andrea Barts, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

      Considered and decided by Reilly, Presiding Judge; Worke, Judge; and Smith,

Tracy M., Judge.

                        UNPUBLISHED OPINION
REILLY, Judge

      Appellant Cornelius Kinte Payton challenges the sufficiency of the evidence

supporting his convictions of aiding and abetting attempted first-degree murder with intent

while committing an aggravated robbery (dangerous weapon), aiding and abetting first-

degree aggravated robbery (dangerous weapon), and being a prohibited person in
possession of a firearm. Because direct evidence in the record supports appellant’s

convictions, we affirm.

                                           FACTS

       This action arises from a shooting that occurred in July 2014. T.G. and S.N.-S.

agreed to meet with T.S. in a St. Cloud parking lot, where T.G. agreed to sell marijuana to

T.S. T.G. and S.N.-S. pulled into the parking lot in T.G.’s car, and T.S. arrived in a truck

with appellant and a third man. Appellant and T.S. got into the backseat of T.G.’s car, with

T.S. seated behind S.N.-S. and appellant seated behind T.G. T.G. drove to another location

and parked the car. As T.G. was weighing the marijuana, he heard a gun load from behind

him. Appellant “tapped” T.G. on the head with the gun and ordered T.G. and S.N.-S. to

hand him the money, the drugs, and everything in their possession, including a briefcase

located in the front seat. Appellant threatened to shoot T.G. and S.N.-S. if they did not

comply. T.G. threw the marijuana into the backseat and emptied his pockets, and T.S.

searched S.N.-S.’s pockets.

       After searching S.N.-S.’s pockets, T.S. got out of the car and walked toward T.G.’s

door to get the briefcase out of the front seat. T.G. drove away from T.S. Appellant fired

two shots at T.G. and then opened the car door and “bailed from” the car. T.G. estimated

the shots were fired a few seconds apart. S.N.-S. testified that appellant fired the first shot

when T.G. drove away from T.S., and fired the second shot while T.G. was still driving.

T.G. did not recall being hit by a bullet, although he became aware of a “warm sensation”

on his neck. T.G. stopped his car and “crawled his way” to the median to sit down. St.

Cloud Police Officers arrived and noticed one bullet hole in T.G.’s neck and another bullet


                                              2
hole in the back of his shoulder. T.G. was taken by ambulance to the hospital. Although

the injuries were life-threatening, T.G. survived the gunshot wounds. Police officers

apprehended appellant and found a handgun, which the Bureau of Criminal Apprehension

linked to the cartridge casings found at the scene.

       The state charged appellant by amended complaint with aiding and abetting

attempted first-degree murder with intent while committing an aggravated robbery

(dangerous weapon) (count one); attempted second-degree murder with intent (dangerous

weapon) (count two); aiding and abetting first-degree aggravated robbery (dangerous

weapon) (count three); second-degree assault of T.G. (count four); second-degree assault

of S.N.-S. (count five); and being a prohibited person in possession of a firearm (count six).

       Appellant waived his right to a jury trial on (1) the issue of guilt, and (2) the question

of whether he used a firearm during the course of the offense for purposes of the firearm-

enhancement statute. See Minn. Stat. § 609.11, subd. 5(a)(2014); Blakely v. Washington,

542 U.S. 296, 124 S. Ct. 2531 (2004). The matter proceeded to a bench trial and the district

court convicted appellant of all six offenses. At sentencing, the district court adjudicated

appellant guilty of count one aiding and abetting attempted first-degree murder with intent

while committing an aggravated robbery (dangerous weapon); count three, aiding and

abetting first-degree aggravated robbery (dangerous weapon); and count six, being a

prohibited person in possession of a firearm, but did not adjudicate counts two, four, or

five as lesser-included offenses. The presentence investigation report recommended a total

aggregate sentence of 301 months. The district court sentenced appellant to 164 months

on count one, 111 months on count three, and 60 months on count six. The district court


                                               3
ordered count one to run consecutive to the sentence imposed for count 3, and ordered

counts 3 and 6 to run concurrently to one another, for a total commit of 275 months in

prison.

          This appeal follows.

                                       DECISION

          Our review of a sufficiency-of-the-evidence challenge is “limited to a painstaking

analysis of the record to determine whether the evidence, when viewed in a light most

favorable to the conviction, was sufficient to permit the [fact-finder] to reach the verdict

which [it] did.” State v. DeRosier, 695 N.W.2d 97, 108 (Minn. 2005) (quotation omitted).

We assume that the fact-finder “believed the state’s witnesses and disbelieved any evidence

to the contrary.” State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989). Inconsistencies in

testimony go to witness credibility, which is an issue for the fact-finder. State v. Pendleton,

706 N.W.2d 500, 512 (Minn. 2005). A guilty verdict will not be reversed “if, giving due

regard to the presumption of innocence and to the prosecution’s burden of proving guilt

beyond a reasonable doubt, the [fact-finder] could reasonably have found the defendant

guilty of the charged offense.” State v. Vang, 847 N.W.2d 248, 258 (Minn. 2014)

(quotation omitted).

          Because the gun did not discharge until T.S. got out of the car with the money and

the marijuana, and T.G. drove away, appellant asserts that the state failed to prove beyond

a reasonable doubt that he fired the gun while committing aggravated robbery. A person

commits simple robbery if he “having knowledge of not being entitled to it, takes personal

property from the person or in the presence of another and uses or threatens the imminent


                                              4
use of force against any person to overcome the person’s resistance or powers of resistance

to, or to compel acquiescence in, the taking or carrying away of the property. . . .” Minn.

Stat. § 609.24 (2014). A person is guilty of first-degree aggravated robbery if he aids

another person in committing a robbery while “armed with a dangerous weapon.” Minn.

Stat. §§ 609.245, subd. 1, 609.05 (2014). A person is guilty of attempt to commit a crime

when he, “with intent to commit [the] crime, does an act which is a substantial step toward,

and more than preparation for, the commission of the crime.” Minn. Stat. § 609.17, subd.

1 (2014). Minnesota’s first-degree felony-murder statute provides that:

                        Whoever does any of the following is guilty of murder
              in the first degree and shall be sentenced to imprisonment for
              life: . . . causes the death of a human being with intent to effect
              the death of the person or another, while committing or
              attempting to commit . . . aggravated robbery. . . .

Minn. Stat. § 609.185(a)(3) (2014).

       The Minnesota Supreme Court held that in order to establish the necessary nexus

between the murder or attempted-murder and the underlying felony, “the state must prove

that the fatal wound was inflicted during the same chain of events [in which the underlying

felony took place] so that the requisite time, distance, and causal relationship between the

felony and killing are established.” State v. Harris, 589 N.W.2d 782, 791-92 (Minn. 1999)

(quotation and citations omitted). Thus, as long as the underlying felony and the murder

“are part of one continuous transaction, it is irrelevant whether the felony took place before,

after, or during the killing.” Id. at 792 (citing State v. Peou, 579 N.W.2d 471, 475-76

(1998)).




                                              5
       The crux of the dispute revolves around whether the first-degree felony-murder rule

applies, that is, whether the attempted murder and the underlying felony, aggravated

robbery, occurred during one continuous chain of events. See State v. Arrendondo, 531

N.W.2d 841, 844-45 (Minn. 1995). Appellant argues that the state failed to prove beyond

a reasonable doubt that he fired the gun during the commission of an aggravated robbery.

Appellant asserts two arguments to support his position: first, that the robbery was

complete prior to the shooting, and second, that the events were not part of a single,

continuous transaction.

                                              A.

       A person is guilty of attempt when he takes a “substantial step” toward the

commission of the crime. Minn. Stat. § 609.17, subd. 1. Appellant argues that the

“substantial step” did not occur until appellant fired two shots at T.G., after T.S. got out of

the car with the money and the drugs. The district court disagreed, finding:

              [Appellant] did an act that was a substantial step toward, and
              more than mere preparation for, the commission of that crime
              based on the testimony that [appellant] pulled out a firearm,
              told [T.G.] and [S.N.-S.] to give him what they had, pointed a
              firearm at [T.G.], told [T.G.] that he would shoot him, and fired
              two shots at [T.G.], which hit [T.G.] in his shoulder and neck.
              ...

       Evidence in the record supports the district court’s finding that appellant took

several “substantial steps” during the commission of the aggravated robbery by threatening

to shoot T.G. and S.N.-S. if they did not comply. T.G. and S.N.-S. testified that appellant

“racked” a gun, pointed it at them, and threatened to shoot them if they did not turn over

their belongings. T.G. and S.N.-S. also testified that appellant shot T.G. while he was


                                              6
trying to drive away. We assume that the district court, acting as fact-finder, credited this

testimony. See Gulbertson v. State, 843 N.W.2d 240, 245 (Minn. 2014) (recognizing that

a court reviewing the sufficiency of the evidence assumes that the fact-finder believed the

state’s witnesses).

       Moreover, at the time of the shooting, appellant and T.S. were still attempting to rob

T.G. of the briefcase, which they believed contained money and drugs. Appellant testified

during trial that after T.S. took S.N.-S.’s wallet, appellant noticed the briefcase in the center

console and ordered T.S. to get it, at which point T.S. “exited the vehicle from his side and

went around to the driver’s side” to get the briefcase from T.G. Appellant testified that

T.G. put the car into drive “in the midst of [T.S.] talking and trying to get the briefcase.”

According to S.N.-S.’s testimony, appellant fired the first shot as T.S. struggled to open

T.G.’s car door. The district court, as fact-finder, reasonably inferred that the robbery was

still in progress when appellant shot T.G. See State v. Russell, 503 N.W.2d 110, 114 (Minn.

1993) (“In making its factual determination, the [fact-finder] was entitled to make

reasonable inferences from the evidence, including inferences based on their experiences

or common sense.” (quotation omitted)). The evidence presented at trial was sufficient to

permit the district court to convict appellant of aiding and abetting attempted first-degree

murder while committing an aggravated robbery.

       Appellant relies on State v. Solomon, 359 N.W.2d 19, 20 (Minn. 1984), to support

his argument that the felony-murder rule cannot apply because the aggravated robbery was

complete before he fired the gun. In Solomon, the defendant threatened a convenience-

store clerk with a gun and took the cash drawer. Id. at 20. As the defendant was turning


                                               7
to leave the store, he saw police officers outside and dropped the money, discarded his gun,

and fled. Id. The supreme court determined that the evidence established the completed

offense of aggravated robbery because one of the elements of robbery is the element of

“taking or carrying away” property, and the defendant had “control or dominion over the

money,” if only for a few seconds. Id. at 21. Appellant argues that, applying Solomon, the

“robbery was complete” when T.G. got out of the car with the money and the marijuana

and, “[b]y the time [appellant] fired the shots, the aggravated robbery was over.” We are

not persuaded by this argument. Solomon is factually distinguishable because it does not

address the issue of whether a murder or an attempted murder occurred during the

commission of an aggravated robbery. Moreover, the issue before the Solomon court was

whether the district court erroneously submitted a lesser-included offense to the jury. Id.

at 20. Because, here the robbery was ongoing, as T.S. was still trying to obtain the

briefcase, Solomon is not instructive.

                                             B.

       Appellant argues that the felony-murder analysis does not apply because the

aggravated robbery and the attempted murder were not part of a continuous chain of events.

The factual record belies appellant’s claim. Appellant pulled the trigger within seconds of

T.G. attempting to drive away from T.S., who was opening the driver-side door to steal

T.G.’s briefcase. The second shot occurred a few seconds after the first. The events took

place during the same time frame, and in the same location—T.G.’s car. Moreover, a “short

period of time and short distance between the two crimes are not enough to sever the single

chain of events as pertains to the act of the underlying felony.” State v. Darris, 648 N.W.2d


                                             8
232, 239 (Minn. 2002) (citing Harris, 589 N.W.2d at 793); see also Arrendondo, 531

N.W.2d at 845 (determining there was sufficient evidence presented at trial that victim’s

drowning death occurred during the course of a continuous chain of events that began with

offenders’ attempt to drug him); Russell, 503 N.W.2d at 113 (holding robbery and murder

of victim “were parts of a single, continuous transaction or chain of events because the

activities occurred within a short period of time, at the same location, and as part of the act

of robbing [the victim]”). Sufficient evidence in the record supports the district court’s

determination that appellant “intended to commit the crime of Murder in the First Degree

– While Committing a Robbery” at the time he pointed a firearm at T.G. and at S.N.-S. and

threatened to kill them.

       Appellant raises additional arguments in his reply brief regarding the chain of events

leading up to the shooting. Because we determine that the aggravated robbery and the

attempted murder were part of a continuous chain of events, it is not necessary to consider

these additional arguments.

       Affirmed.




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