                          This opinion will be unpublished and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
                                     A14-1049

                                   State of Minnesota,
                                      Respondent,

                                           vs.

                                 Daron A-Saad Johnson,
                                       Appellant.

                                 Filed August 10, 2015
                                       Affirmed
                                      Kirk, Judge

                              Douglas County District Court
                                 File No. 21-CR-13-239


Lori Swanson, Attorney General, Michael Everson, Assistant Attorney General, St. Paul,
Minnesota; and

Chad M. Larson, Douglas County Attorney, Alexandria, Minnesota (for respondent)

Bradford Colbert, Legal Assistance to Minnesota Prisoners, St. Paul, Minnesota (for
appellant)


         Considered and decided by Chutich, Presiding Judge; Connolly, Judge; and Kirk,

Judge.
                          UNPUBLISHED OPINION

KIRK, Judge

       A jury convicted appellant Daron A-Saad Johnson of first-degree controlled-

substance crime for the benefit of a gang, second-degree controlled-substance crime for

the benefit of a gang, and possession of stolen property. Appellant argues that (1) there

was insufficient evidence that he committed the first two counts for the benefit of a

criminal gang; (2) as a result, he is entitled to a new trial on the lesser-included

controlled-substance crimes due to the admission of “extremely prejudicial” gang-related

evidence; and (3) the district court abused its discretion in imposing a sentence at the top

of the presumptive range. We affirm.

                                         FACTS

       On February 11, 2013, J.S., a second woman, Anthony Shannon, and appellant

were traveling on Interstate 94 in northwest Minnesota towards Minneapolis, in a vehicle

driven by Brandon Thomas. During the trip, the men left the women at a McDonald’s

restaurant in Fergus Falls without warning, taking the women’s personal property with

them. J.S. immediately called law enforcement to report the theft and that there was

cocaine in the vehicle.

       Trooper Richard Homan of the Minnesota State Patrol responded to J.S.’s call and

stopped the vehicle. After obtaining a search warrant, officers searched the passenger-

side front door of the vehicle, locating baggies of crack cocaine, a plastic bag containing

multiple small baggies of cocaine, and a digital scale. Trooper Homan testified that the

small baggies and digital scale were indicative of drug sales activity. After obtaining a


                                             2
search warrant to search appellant’s cell phone, officers discovered numerous

photographs of drugs, guns, and large sums of currency on the phone. There were also

multiple photographs of appellant, Shannon, Thomas, and other individuals flashing gang

signs or hand signs disrespecting rival gangs.

       J.S. testified that appellant, Shannon, and Thomas are members of a gang called

YNT, which stands for “Young and Thuggin.” Minneapolis Police Officer David Ligneel

testified as an expert for respondent State of Minnesota about Minneapolis gangs,

particularly YNT.

       After a three-day trial, the jury found appellant guilty of first-degree controlled-

substance crime, second-degree controlled-substance crime, and gross misdemeanor

possession of stolen property. The district court sentenced him to 142 months in prison,

near the top of the presumptive sentencing range. He also received a concurrent 365-day

sentence for the possession-of-stolen-property conviction.        Appellant appeals the

controlled-substance-offense convictions and sentence.

                                     DECISION

I.     The evidence is sufficient to sustain appellant’s convictions for the first- and
       second-degree controlled-substance crimes committed for the benefit of a
       gang.

       In 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 jury to reach its verdict. State v.

Webb, 440 N.W.2d 426, 430 (Minn. 1989). We must assume that “the jury believed the

state’s witnesses and disbelieved any evidence to the contrary.” State v. Moore, 438


                                             3
N.W.2d 101, 108 (Minn. 1989). Ordinarily, this court 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

proven guilty of the charged offense. Bernhardt v. State, 684 N.W.2d 465, 476–77

(Minn. 2004).

       In reviewing a conviction based on circumstantial evidence, however, we apply a

two-step analysis. State v. Hanson, 800 N.W.2d 618, 622 (Minn. 2011). Direct evidence

is “evidence that is based on personal knowledge or observation and that, if true, proves a

fact without inference or presumption,” while circumstantial evidence is “evidence based

on inference and not on personal knowledge or observation.” Bernhardt, 684 N.W.2d at

477 n.11 (quotation marks and alterations omitted) (quoting Black’s Law Dictionary

595–96 (8th ed. 2004)).

       First, we “identify the circumstances proved,” deferring to the jury’s acceptance of

proof of those circumstances and rejection of evidence conflicting with those

circumstances.   State v. Silvernail, 831 N.W.2d 594, 598–99 (Minn. 2013).            “We

recognize that the trier of fact is in the best position to determine credibility and weigh

the evidence.” State v. Al–Naseer, 788 N.W.2d 469, 473 (Minn. 2010). In the second

step, we “examine independently the reasonableness of all inferences that might be drawn

from the circumstances proved” to “determine whether the circumstances proved are

consistent with guilt and inconsistent with any rational hypothesis except that of guilt.”

Silvernail, 831 N.W.2d at 599 (quotations omitted). We do not defer to the fact-finder’s

choice between reasonable inferences drawn from the circumstances proved. Id.


                                            4
“Circumstantial evidence must form a complete chain that, as a whole, leads so directly

to the guilt of the defendant as to exclude beyond a reasonable doubt any reasonable

inference other than guilt.” Hanson, 800 N.W.2d at 622 (quotation omitted).

       In a case in which the state offered both direct and circumstantial evidence on a

disputed element, appellate courts may apply the traditional standard to review the

sufficiency of the direct evidence, standing alone, to prove the element; only if the direct

evidence is insufficient to prove the disputed element must appellate courts apply the

two-step standard to review the sufficiency of the evidence to prove the element. See

Silvernail, 831 N.W.2d at 605 (Stras, J., concurring in part) (reasoning that “there is no

reason to evaluate the reasonableness of inferences that the jury is never required to

make” and concluding that “the ‘circumstantial evidence standard’ does not apply to our

review of an element of a criminal offense that the State has proven by direct evidence”);

State v. Porte, 832 N.W.2d 303, 309 (Minn. App. 2013) (stating that “[w]hether we apply

the standard of review applicable to circumstantial evidence depends on whether the

conviction necessarily depends on circumstantial evidence” and concluding that

“[b]ecause the state’s direct evidence is insufficient by itself to prove [defendant]’s intent

. . . , we must consider the state’s circumstantial evidence, which requires that we engage

in the type of heightened scrutiny that is appropriate for circumstantial evidence”).

       To prove the commission of the first-degree controlled-substance crime for the

benefit a gang in this case, the state needed to prove that: (1) on one or more occasions

within a 90-day period, appellant unlawfully sold one or more mixtures of a total weight

of ten grams or more containing cocaine; (2) appellant knew or believed the substance


                                              5
sold was a mixture containing cocaine; and (3) appellant sold cocaine for the benefit of,

at the direction of, in association with, or motivated by involvement with a criminal gang

with the intent to promote, further, or assist in criminal conduct by gang members. See

Minn. Stat. §§ 152.021, subd. 1(1), 609.229, subd. 2 (2012); 10 Minnesota Practice,

CRIMJIG 20.02 (2012). To “sell” cocaine includes possession of cocaine with intent to

sell. Minn. Stat. § 152.01, subd. 15a (2012). To prove the second-degree controlled-

substance crime, the state needed to prove that appellant: (1) knowingly possessed one or

more mixtures of a total weight of six grams or more containing cocaine; (2) knew or

believed that the substance possessed was cocaine; and (3) possessed cocaine for the

benefit of, at the direction of, in association with, or motivated by involvement with a

criminal gang with the intent to promote, further, or assist in criminal conduct by gang

members. See Minn. Stat. §§ 152.022, subd. 2(a)(1), 609.229, subd. 2; 10 Minnesota

Practice, CRIMJIG 20.14 (2012).       Appellant challenges only the sufficiency of the

evidence for the third element of each crime.

      A.     Criminal gang.

      Under Minnesota law, a criminal gang is:

             [A]ny ongoing organization, association, or group of three or
             more persons, whether formal or informal, that: (1) has, as
             one of its primary activities, the commission of one or more
             of the offenses listed in section 609.11, subdivision 9; (2) has
             a common name or common identifying sign or symbol; and
             (3) includes members who individually or collectively engage
             in or have engaged in a pattern of criminal activity.

Minn. Stat. § 609.229, subd. 1 (2012).      “When feasible, it is best to use firsthand

knowledge to establish the for-the-benefit-of-a-gang element.” State v. Mahkuk, 736


                                            6
N.W.2d 675, 686 (Minn. 2007).        We have also advised against the use of expert

testimony to prove gang membership by expert opinion.          State v. Lopez-Rios, 669

N.W.2d 603, 612–13 (Minn. 2003).

      Because direct evidence reasonably supports the jury’s finding that YNT meets the

statutory definition of a criminal gang, we need not apply the circumstantial evidence

standard on this issue. See Silvernail, 831 N.W.2d at 605 (Stras, J., concurring in part);

Porte, 832 N.W.2d at 309.      Here, J.S. testified that YNT is a known gang in her

neighborhood with an identifiable territory, establishing that YNT has a common name.

Officer Ligneel testified that YNT is a commonly recognized street gang in north

Minneapolis with over 100 members or associates. He described the hand gesture, or

gang sign, associated with YNT, and described the “TC” logo of the Minnesota Twins

baseball team as a symbol affiliated with “YNT Taliban,” which stands for “Taliban

crazy.” The state presented photographs found on appellant’s cell phone consistent with

Officer Ligneel’s testimony regarding YNT’s use of gang signs.

      Officer Ligneel further testified, based on his experience investigating YNT, that

its primary activities include the ongoing sale of narcotics and firearms, as well as the

commission of aggravated assaults and robberies. This testimony is consistent with

photographs found on appellant’s cell phone and social media showing known YNT

members with drugs and large sums of currency. See State v. Barajas, 817 N.W.2d 204,

221 (Minn. App. 2012) (stating that photographs showing a defendant with unusually

large sums of money are relevant to establishing intent to sell controlled substances),

review denied (Minn. Oct. 16, 2012). Officer Ligneel described the “loosely structured”


                                            7
nature of YNT, and YNT members’ frequent transportation of narcotics to northern

Minnesota, where they can sell them for considerably more money than in the Twin

Cities. He also testified that YNT members will direct other members to sell illegal drugs

and then collect the proceeds from the seller, and that YNT members will share resources

by putting money “on the books” for members to use at the commissary while

incarcerated.

       B.       For the benefit of a gang.

       The state presented largely circumstantial evidence to prove that the controlled-

substance crimes were committed for the benefit of a gang. “Intent must generally be

proved by inferences from the defendant’s conduct and the surrounding circumstances.”

State v. Caldwell, 815 N.W.2d 512, 517 (Minn. App. 2012), review denied (Minn. June

27, 2012). We are persuaded that the only rational inference from the circumstances

proved is that appellant possessed and sold cocaine for the benefit of, at the direction of,

in association with, or motivated by involvement with YNT and/or an affiliated gang with

the intent to promote, further, or assist in illegal drug possession and sales by that gang.

       Appellant argues that the evidence was “inconsistent and contradictory” about

whether he belonged to YNT, Taliban, or another gang, and therefore it was legally

insufficient to show involvement with a gang. However, as explained by Officer Ligneel,

YNT and Taliban and other associated gangs are loosely structured and closely related

organizations. The statutory definition of “criminal gang” allows for the association to be

either “formal or informal.” Minn. Stat. § 609.229, subd. 1.




                                              8
       Appellant cites two opinions of the California Court of Appeal holding that an

individual’s membership in a gang, by itself, was insufficient to prove the commission of

a crime for the benefit of a gang. However, these cases are not precedential, and there is

significant evidence beyond appellant’s involvement in a gang in this case from which to

reasonably infer that the controlled-substance crimes were for the benefit of a gang.

       Based upon the verdict, the jury found the following facts to be proved, in addition

to those discussed above. Appellant, Shannon, and Thomas were each either members of

YNT or another criminal gang closely associated with YNT. On the day in question,

after appellant, Shannon, and Thomas stopped at an apartment building for approximately

15 minutes, appellant openly possessed cocaine as he and Shannon returned to the

vehicle. Appellant hid the cocaine in the side panel in the vehicle, near the front-

passenger seat where he had been sitting. It was later discovered by law enforcement,

along with a digital scale with residue matching appellant’s DNA. The cocaine was

packaged in multiple baggies, weighing 22.2 grams in total.

       During the trip, Thomas sent appellant a text message asking him how much to

charge for a quarter ounce of drugs. While sitting in a squad vehicle after the stop,

appellant and Shannon’s conversation was recorded by a microphone in a video camera

located in the vehicle. They discussed “stashing the shit[,]” and commented that they

were “fucked.” Appellant’s text messages on the day of the offenses include multiple

uses of the phrases “on da gang” and “on da squad,” which Officer Ligneel explained as

akin to swearing on the Bible, and that “they’re telling the truth, and they want to do

this.” The jury could have reasonably inferred that these were specific references to the


                                             9
men’s gang as they transported drugs in Thomas’s vehicle, which they intended to sell for

the benefit of the gang. Further, YNT members improve their status in the gang by

earning money through drug sales, and appellant’s phone included numerous photographs

of appellant and others flashing gang signs and holding large sums of money.

       These facts are consistent with appellant knowingly possessing and selling drugs

during the trip in association with, or motivated by involvement with, YNT or another

criminal gang, and with intent to promote, further, or assist in criminal conduct by gang

members. See Minn. Stat. § 609.229, subd. 2. They are inconsistent with any other

rational hypothesis. Id. Therefore, when viewed in the light most favorable to the

verdict, the evidence is sufficient to allow the jury to reach its verdict. Webb, 440

N.W.2d at 430.

II.    Because there was sufficient evidence to find that appellant committed the
       controlled-substance offenses for the benefit of a gang, we do not reach his
       argument that he is entitled to a new trial on the lesser-included controlled-
       substance crimes due to the admission of “extremely prejudicial” gang-
       related evidence.

       Alternatively, appellant argues that, because there was insufficient evidence to

find that the controlled-substance offenses were committed for the benefit of a gang, the

district court should have excluded evidence that he committed the controlled-substance

crime to benefit a gang as “extremely prejudicial” and “completely unnecessary,”

focusing on Officer Ligneel’s testimony. Therefore, appellant asserts, if we do not

reverse his convictions for insufficient evidence, he is entitled to a new trial on the lesser-

included controlled-substance crimes.




                                              10
      Because we conclude that there was sufficient evidence to find that the controlled-

substance offenses were committed for the benefit of a gang, we do not reach this

argument. However, we note that, in order to prove either the first-degree or second-

degree controlled-substance crime for the benefit a gang, it was necessary to present

evidence proving that a criminal gang exists and that the controlled-substance crime was

connected to the gang as required by the statute. See State v. Jackson, 714 N.W.2d 681,

692 (Minn. 2006) (recognizing that evidence about a defendant’s involvement in a gang,

including expert testimony about gang culture and a particular gang, was admissible

because it “had significant probative value” to an essential element of the crime under

section 609.229, and that exclusion of such evidence would “render[] convictions under

[that section] nearly impossible to obtain”); State v. Vang, 774 N.W.2d 566, 576–77

(Minn. 2009) (holding that, despite danger of unfair prejudice, expert testimony about

gangs was admissible to prove that the defendant committed murder to benefit a gang);

State v. Ferguson, 581 N.W.2d 824, 834–35 (Minn. 1998) (holding that evidence of gang

graffiti in defendant’s bedroom was highly prejudicial but admissible in first-degree

murder case because it was “essential” to prove motive). Here, the district court correctly

limited gang-related expert testimony to specific gangs involved in this case and

purposefully avoided duplication of J.S.’s testimony. See Lopez-Rios, 669 N.W.2d at

612–13 (describing improper expert gang testimony as that “which was duplicative, was

related to general gang activity and affiliations, was extraneous to the factual issues

before the jury, and was prejudicial”); State v. DeShay, 669 N.W.2d 878, 884–88 (Minn.

2003) (holding gang expert testimony to be inadmissible because it was duplicative of


                                            11
testimony given by witnesses with first-hand knowledge, such as DeShay’s association

with a gang, that the gang’s primary activity was drug trafficking, and that the gang used

nonmember drug addicts in the commission of crimes).

III.   The district court did not abuse its discretion in imposing a sentence near the
       top of the presumptive range.

       “A sentence within the range provided in the appropriate box on the sentencing

guidelines grid is not a departure from the presumptive sentence.” State v. Delk, 781

N.W.2d 426, 428–29 (Minn. App. 2010), review denied (Minn. July 20, 2010). An

appellate court “will not generally review a district court’s exercise of its discretion to

sentence a defendant when the sentence imposed is within the presumptive guidelines

range.” Id. at 428. Only in a “rare” case will this court reverse a district court’s

imposition of a presumptive sentence. State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981).

       Appellant argues that his sentence should be vacated because the district court

erred when it relied on several improper factors in imposing his sentence, including that

appellant had prior assaults as a juvenile, was on supervised release for a prior crime of

violence, had shown no remorse for his instant crimes, and made numerous false

statements at trial. The district court, the agent authoring the presentence investigation

report and sentencing worksheet, and the parties all considered appellant’s 142-month

sentence to be at the top of the presumptive prison sentence range under the Minnesota

Sentencing Guidelines. The presumptive sentence for an offender with a criminal-history

score of two who is convicted of a first-degree controlled-substance crime, a severity-

level-nine offense, is 110 months, with a presumptive range of 94 to 132 months. See



                                            12
Minn. Sent. Guidelines 4.A (2012). When an offender is sentenced for a completed

offense committed for the benefit of a gang under Minn. Stat. § 609.229, subd. 3(a), and

there is no victim under the age of 18, as is the case here, 12 months is added to each

presumptive duration and range figure. See Minn. Sent. Guidelines 2.G.10.b(2) (2012).1

Therefore, the presumptive sentence was 122 months, with a range of 106 to 144 months.

      Juvenile offenses prior to age 14 are not considered in calculating a criminal-

history score.   See Minn. Sent. Guidelines 2.B.4 (2012).      However, nothing in the

sentencing guidelines or caselaw precludes a district court from considering juvenile

offenses in sentencing. Further, the district court considered appellant’s custody status,

lack of remorse, and false testimony when imposing a sentence within the presumptive

range, and the court’s consideration of these factors did not violate appellant’s

constitutional rights. Cf. State v. Chaklos, 528 N.W.2d 225, 228 (Minn. 1995) (stating

that, generally, the offender-related factor of particular unamenability to treatment in a

probationary setting may be used to justify a dispositional departure, but not an upward

durational departure, while offense-related aggravating factors may be used to support

both a dispositional departure and an upward durational departure); State v. Calmes, 632

N.W.2d 641, 645 (Minn. 2001) (“The United States and Minnesota Constitutions,


1
  This subsection applies if “the victim was eighteen or older.” If there were a victim
under the age of 18 years, 24 months would be added. Minn. Sent. Guidelines
2.G.10.b(1) (2012). Because there was no victim here, the lesser addition applies. See
State v. Collins, 580 N.W.2d 36, 41 (Minn. App. 1998) (stating that an ambiguity in a
criminal statute should be resolved in favor of leniency to the defendant), review denied
(Minn. July 16, 1998). Notably, in 2014, the “eighteen or older” category was modified
to explicitly include circumstances where the offense does not involve a victim. See
Minn. Sent. Guidelines 2.G.10.b(1) (2014).

                                           13
through their due process clauses, ensure that sentencing proceedings observe the

standards of fundamental fairness essential to justice.”) (quotation omitted). Therefore, it

was not improper to consider these factors.

       This court generally will not interfere with a sentence where it is clear that the

district court “deliberately considered circumstances . . . and exercised its discretion.”

State v. Pegel, 795 N.W.2d 251, 255 (Minn. App. 2011); see also State v. Van Ruler, 378

N.W.2d 77, 80–81 (Minn. App. 1985) (stating that the district court is not required to

give reasons when it elects to impose a presumptive sentence). The record reflects that

the district court did so in this case. It did not abuse its discretion in imposing appellant’s

sentence.

       Affirmed.




                                              14
