                          This opinion will be unpublished and
                          may not be cited except as provided by
                          Minn. Stat. § 480A.08, subd. 3 (2012).

                               STATE OF MINNESOTA
                               IN COURT OF APPEALS
                                     A13-1522

                                    State of Minnesota,
                                       Respondent,

                                            vs.

                                   Devon Scott Martin,
                                       Appellant.

                                 Filed September 2, 2014
                             Affirmed in part and remanded
                                       Ross, Judge

                              St. Louis County District Court
                               File No.: 69DU-CR-12-3002

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Mark S. Rubin, St. Louis County Attorney, Jonathan D. Holets, Assistant County
Attorney, Duluth, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Rachel F. Bond, Assistant
Public Defender, St. Paul, Minnesota (for appellant)


         Considered and decided by Reilly, Presiding Judge; Ross, Judge; and Bjorkman,

Judge.

                         UNPUBLISHED OPINION

ROSS, Judge

         A jury convicted Devon Martin of second-degree assault, terroristic threats, and

felony domestic assault after he seized his two-year-old daughter, threateningly gestured
to her mother with his fists when she tried to intervene, and brandished a handgun when

she called the police. Because the state offered sufficient evidence that Martin possessed

the requisite specific intent for second-degree assault, we affirm his conviction. But

because the state concedes that both of his assault convictions stemmed from the same

behavioral incident and that the district court should not have sentenced Martin on both

convictions, we remand for the district court to modify the sentence.

                                         FACTS

      St. Louis County charged Devon Martin with second-degree assault, terroristic

threats, and felony domestic assault after an altercation between Martin, his two-year-old

daughter, and her mother, C.W. At Martin’s trial, the jury heard testimony describing the

following events.

      Martin and C.W. had an on-again, off-again romantic relationship that spanned

several years, and they had two children together. Although Martin did not have legal

custody of the children, he saw them regularly, usually several times a week and always

with C.W. present. C.W. arranged to meet a friend in a Duluth park one evening in

August 2012, and she brought one of the children along, a two-year-old girl. She had no

plans to meet Martin, but she encountered him in the park. Martin called to his daughter,

and she ran to him. Martin picked her up and began carrying her away. C.W. objected,

repeatedly asking Martin to return the girl. Martin refused. He walked out of the park

toward nearby woods. C.W. followed. Martin raised his fist, threatening to hit C.W.

whenever she got close.




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       C.W. dialed 9-1-1 and activated the speakerphone feature. Martin released their

daughter. As C.W. gathered her up, Martin brandished a black handgun and said, “You’re

really going to call the cops when I . . . have this, you stupid bitch?” The jury heard a

recording of C.W.’s 9-1-1 call reflecting part of the verbal exchange. C.W. was unsure

whether Martin actually aimed the gun at her, not having been watching him as she

walked away with the girl.

       C.W. went home and spoke with Duluth Police Officer Michael Saburn,

recounting the events. C.W. said that she asked Martin, upon seeing his gun, if he “was

going to . . . shoot up [her] house.” She said that Martin responded that she would “see

what’s coming” if she “[f - - - ed] with [him] again.” The jury heard a recording of

C.W.’s discussion with Officer Saburn.

       Martin did not testify. The jury found him guilty of all three offenses charged. The

district court dismissed the charge of terroristic threats at sentencing because the state had

acknowledged that it arose from the same behavioral conduct as the second-degree

assault offense. But the state contended, during trial and at sentencing, that Martin’s act

of raising his fist and threatening to hit C.W. provided a separate basis for the domestic

assault charge. Applying the sentencing guidelines and following the recommendations

of the presentence investigation report, the district court sentenced Martin to 36 months

in prison for the second-degree assault conviction and to 15 months in prison for the

domestic-assault conviction, the prison terms to be served concurrently.

       Martin appeals.




                                              3
                                     DECISION

                                             I

       Martin argues that the state did not prove that he specifically intended to instill in

C.W. the fear of death or immediate bodily harm. The assault charged is a specific intent

offense, State v. Fleck, 810 N.W.2d 303, 309 (Minn. 2012), so the state must prove that

Martin intended to cause C.W. to fear immediate bodily harm or death, see Minn. Stat.

§ 609.02, subd. 10(1) (2012). When a defendant’s intent is an element of the offense, the

conviction ordinarily relies on the circumstantial evidence offered to prove the intent, and

we apply a heightened standard on review of convictions that rest on circumstantial

evidence. State v. Porte, 832 N.W.2d 303, 309 (Minn. App. 2013).

       Our circumstantial-evidence review follows a two-step analysis. We first identify

the circumstances proved. State v. Andersen, 784 N.W.2d 320, 329 (Minn. 2010). In

doing so, we defer to the jury’s decision to accept circumstances as proved and to reject

evidence that contradicts them. Id. We then independently examine “the reasonableness

of all inferences that might be drawn from the circumstances proved,” including any

inferences that support hypotheses other than guilt. Id. We will affirm if the

circumstances proved are consistent with guilt and “inconsistent with any other rational

hypothesis.” State v. Al-Naseer, 788 N.W.2d 469, 473 (Minn. 2010) (quotation omitted).

       The circumstances proved here establish that Martin encountered C.W. and their

daughter in the park and that he called to his daughter and attempted to take her from

C.W. They establish that Martin raised his fist threatening to strike C.W. while she

followed and pleaded with him to return the child to her. Martin argues that the evidence


                                             4
does not prove that he intended to threaten C.W. with the gun. He does not dispute that he

took out the gun and called C.W. a “stupid bitch” for “call[ing] the cops when [he] . . .

ha[d] this,” referring to the handgun. He argues that the circumstances do not prove his

specific intent to harm C.W. because they do not establish that he pointed the gun at C.W.

and because C.W. was moving away from him when he made his comment about the

gun.

       This is a close issue on the facts presented, but Martin’s arguments are ultimately

unconvincing. By the time Martin brandished his handgun, he had already created a tense

and threatening environment, having cocked his fist at C.W. as she pleaded for him to

release the child back to her. His drawing the gun was his immediate response to C.W.’s

calling the police, and his brandishing and comment sharply rebuking her for calling the

police while he had the handgun could readily be understood to imply that she should

have known better than to provoke him to immediately use the gun. We recognize that

other interpretations of his motive might exist, but we are persuaded that this is the only

reasonable interpretation available.

       Martin’s general-intent argument, based on the fact that he may not have aimed

his gun directly at C.W., misreads our decision in In re Welfare of T.N.Y., 632 N.W.2d

765 (Minn. App. 2001). In T.N.Y. a 13-year-old boy holding a handgun emerged from a

room and encountered three armed police officers shielded behind a portable bunker and

pointing their weapons at him. Id. at 767. The boy did not point the gun at the officers or

otherwise act as if he was tempted to shoot, and, after briefly hesitating, he dropped the

gun at the officers’ command. Id. at 767–68. We held that these facts were insufficient to


                                            5
show the intent necessary to prove second-degree assault. Id. at 770. But this case is

different. Here Martin brandished the gun while making a hostile comment that would

inform anyone in C.W.’s shoes that she has just provoked the immediate use of the

firearm.

       Martin makes a distance-based argument, and it is less persuasive. We have noted

that imminent fear depends not on the space that separates the parties but on “[t]he threat

to use [the weapon] and the ability to use it immediately.” State v. Kastner, 429 N.W.2d

274, 275 (Minn. App. 1988) (holding that jury could reasonably infer intent to cause fear

of immediate bodily harm where defendant wielded scissors and screwdriver, assumed an

offensive position, and said she could strike at any time), review denied (Minn. Nov. 16,

1988); see also State v. Patton, 414 N.W.2d 572, 574 (Minn. App. 1987) (affirming

finding of intent where defendant brandished buck knife and testimony indicated he held

it one or two feet from victim); State v. Soine, 348 N.W.2d 824, 827 (Minn. App. 1984)

(affirming intent to cause fear where defendant, standing several feet from victim,

wielded and threatened to use a knife while in striking distance of victim), review denied

(Minn. Sept. 12, 1984). That C.W. was retreating from Martin when he threatened her

with the gun is irrelevant to whether he intended his brandishing and comment to instill

fear. Unlike a knife or screwdriver, a handgun’s lethality does not depend on the

wielder’s reach. Given the nature of firearms, Martin was close enough to C.W. to inflict

the same injury on her that he could inflict within an arm’s length.

       We hold that the evidence is sufficient to prove that Martin possessed the requisite

intent, and we therefore affirm his second-degree assault conviction.


                                             6
                                            II

       Martin also contends that the district court erred by sentencing him for both his

second-degree assault conviction and his domestic-assault conviction because they arose

from the same behavioral incident. Because the facts are undisputed, we review de novo

whether Martin’s assault convictions arose from a single behavioral incident. State v.

McCauley, 820 N.W.2d 577, 591 (Minn. App. 2012), review denied (Minn. Oct. 24,

2012); and see Minn. Stat. § 609.035, subd. 1 (2012) (establishing that when a person’s

conduct constitutes multiple offenses, he may be punished for only one of those

offenses).

       Martin’s contention is persuasive. The prosecutor told the jury that it could find

Martin guilty of second-degree assault or terroristic threats by virtue of brandishing the

handgun. He also argued that it could find Martin guilty of felony domestic assault either

because he waved a gun at C.W. or because he repeatedly threatened her with his fists.

Because the state proposed no other theory, the jury must have convicted Martin of

second-degree assault because he menaced C.W. with the gun. But the state offered

alternative theories for the domestic-assault charge, including Martin’s brandishing of the

gun, and the jury did not specify which theory it accepted. The state concedes that it did

not meet its burden here, and it agrees that Martin’s domestic-assault sentence must

therefore be vacated. We vacate Martin’s 15-month sentence and remand to the district

court for resentencing.

       Affirmed in part and remanded.




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