                        This opinion will be unpublished and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
                                   A14-1539

                                 State of Minnesota,
                                    Respondent,

                                         vs.

                                Jesse Davis Holloman,
                                      Appellant

                                Filed August 17, 2015
                                      Reversed
                                     Ross, Judge

                            Ramsey County District Court
                              File No. 62-CR-11-10084

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

John J. Choi, Ramsey County Attorney, Elizabeth Lamin, Assistant County Attorney, St.
Paul, Minnesota (for respondent)

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

      Considered and decided by Ross, Presiding Judge; Cleary, Chief Judge; and

Johnson, Judge.

                       UNPUBLISHED OPINION

ROSS, Judge

      The district court found Jesse Holloman guilty of reckless discharge of a firearm

within a municipality after it determined that he possessed a loaded gun in a bedroom
across the hall from an in-home daycare and that this same gun fired and wounded a

woman in the arm. Because the circumstances proved by the state do not rule out the

reasonable possibility that the gun discharged as a result of an accidental or unintentional

act, we reverse Holloman’s conviction.

                                           FACTS

       Police received a call in the early afternoon of December 19, 2011, that a woman

had been shot in the arm at a residence on Albemarle Street in St. Paul. The house served

as both a residence and a daycare where the injured woman, M.A., was caring for three

small children.

       M.A. told police that she did not know who shot her or where the shot originated.

Police found that the only other adult present during the shooting was Jesse Holloman,

the homeowner’s son. Police arrested Holloman, and the state charged him with reckless

discharge of a firearm within a municipality and with two fifth-degree controlled-

substance crimes. A jury found Holloman not guilty of the controlled-substance crimes

and could not reach a verdict on the reckless-discharge count. Holloman waived his right

to a jury for the retrial on that count and was tried before the district court in April 2014.

       M.A. testified. She explained that the daycare was run out of a space in the

basement, where there were also two bedrooms and a bathroom. She said that she knew

that Holloman was in the southwest basement bedroom. At one point after she served

lunch to the daycare children, M.A. entered the basement hallway to throw something

away. She said she felt a “nudge” and heard a noise, but she could not determine what the

noise was. She explained how she discovered that she had been shot: “And then I looked


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at my arm, and my arm was messed up. And then I seen a hole in my arm where it was

bleeding.” M.A. recalled that the door to the bedroom where she had seen Holloman was

closed.

       M.A. was shot in the arm just above her left elbow. She sat on the steps and called

her husband. She testified that she saw Holloman while she was sitting and that she

thought Holloman called for emergency help. The recording of the emergency call

confirmed that Holloman did make the call.

       The state introduced overwhelming evidence that the gunshot originated inside the

house. St. Paul Police Sergeant Kenneth Jensen testified that he investigated the shooting.

He said that Holloman had asserted that the bullet entered the home through a window in

the southwest basement bedroom. But the sergeant found that, although the window was

broken, the screen covering the window had no hole, and glass from the broken window

was lying outside rather than inside. Officer Michael Polski testified that when he arrived

he noticed that Holloman’s hand was bleeding. Holloman had told him that he cut

himself on the broken window where the bullet supposedly entered, but, like Sergeant

Jensen, Officer Polski testified that he found no hole in the screen. St. Paul crime lab

sergeant Shay Shackle testified that he determined the bullet’s trajectory based on a bullet

hole in the bedroom door. It had certainly not passed from the outside through the

bedroom window. Sergeant Shackle concluded instead that the “approximate origination

point of the firearm . . . would have been on the -- near the floor by the box spring and the

mattress” in the bedroom.




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       Although police did not find the gun that shot Adams, video footage apparently

explains why. The home’s surveillance camera recorded Holloman going to the garage

with a backpack near the time of the shooting. The footage shows that, about five minutes

later, Holloman retrieved the backpack and gave it to the driver of a van that appeared in

front of the house. Holloman reentered the home without the backpack just before police

arrived.

       Holloman testified in his defense. He offered a version of events that had him in

the southwest basement bedroom waiting for a ride to the hospital to visit his brother. He

claimed that he went to the garage with items he intended to return to the person who was

coming to drive him to the hospital. He said that he then went upstairs to a different

bedroom and got dressed to leave. He told the court that, while he was dressing, he heard

“one, maybe two shots” and then heard M.A. scream. He found M.A. in the basement

with the daycare children, saw that she had been shot, and dialed 9-1-1. Holloman

testified that the driver arrived to pick him up, at which point Holloman went outside and

told him what had happened. According to Holloman, the driver wanted his possessions,

so Holloman directed him to the garage to retrieve them.

       Holloman denied handling any gun that day. He testified that the bullet hole in the

door to the southwest basement bedroom was from a previous shooting one or two years

prior to M.A.’s shooting. He acknowledged that he knew that M.A. was a substitute

daycare provider that day and that children were in the basement.

       Based on this evidence, the district court found Holloman guilty of reckless

discharge of a firearm within a municipality. It did not believe Holloman’s claim to have


                                            4
been upstairs when the shot occurred. It found that he was instead in the southwest

basement bedroom and that the firearm was discharged inside that room. The court

further found that, after the shooting, Holloman took the gun to the garage. It found that

the discharge was reckless based on the following reasoning:

                    Defendant knew that the southwest bedroom was
             across the hall from a room where day care was operating,
             caring for small children who were present. Defendant also
             knew [M.A.] was present at the day care across the hallway.

                     Defendant’s actions in connection with the discharge
             of the firearm in the southwest bedroom of the home were
             reckless in that they created a substantial and unjustifiable
             risk that Defendant was aware of and disregarded.

      Holloman appeals his conviction.

                                     DECISION

      Holloman argues that his conviction cannot stand because the state did not prove

that he acted recklessly in discharging the firearm. Holloman’s conviction rests on

circumstantial evidence. We assess the sufficiency of circumstantial evidence supporting

a conviction in two stages. We first identify the circumstances proved, “defer[ring] to the

fact-finder’s acceptance of the proof of these circumstances,” and rejecting evidence

contrary to the circumstances proved. State v. Hokanson, 821 N.W.2d 340, 354 (Minn.

2012), cert. denied, 133 S. Ct. 1741 (2013). We next independently examine “the

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

including any inferences that support hypotheses other than guilt. State v. Andersen, 784

N.W.2d 320, 329 (Minn. 2010) (quotation omitted). We will affirm the conviction only if




                                            5
the circumstances proved are consistent with guilt and inconsistent with any other

rational hypothesis. State v. Fairbanks, 842 N.W.2d 297, 307 (Minn. 2014).

       The legislature has criminalized the reckless discharge of a firearm within a

municipality. Minn. Stat. § 609.66, subd. 1a(a)(3) (2014). To act recklessly within the

meaning of the statute, a person must create a “substantial and unjustifiable risk” that he

is aware of and disregards. State v. Engle, 743 N.W.2d 592, 595 (Minn. 2008). The

accused does not need to intend to discharge a firearm to be convicted of this crime, but

he must commit “a conscious or intentional act in connection with the discharge of a

firearm that creates a substantial and unjustifiable risk that he is aware of and disregards.”

Id. at 596. In other words, the statute criminalizes intentional acts “that increase the

likelihood that the gun will discharge accidentally, involuntarily, or reflexively.” Id.

       The circumstances proved, as found by the district court, are that Holloman

discharged the gun in the southwest bedroom “from a location on or just off the bed.” It

also found that Holloman knew “that the southwest bedroom was across the hall from a

room where a day care was operating” and that M.A. was caring for the daycare children.

And the court determined that, after the discharge, Holloman moved the gun from the

bedroom to the garage. Again, the court concluded that Holloman’s actions “were

reckless in that they created a substantial and unjustifiable risk that Defendant was aware

of and disregarded.” Its memorandum explained how it concluded that Holloman had

participated somehow in the gun’s discharge: “Guns simply do not load themselves and

discharge without human intervention. [Holloman] created a substantial and unjustifiable

risk with the loaded firearm in proximity to M.A. and an operating day care where


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[Holloman] knew children were present.” Based on this reasoning, the district court

found that Holloman’s act of possessing a loaded gun near daycare children satisfied the

statutory mens rea requirement, and it therefore convicted him of reckless discharge.

       The district court’s reasoning that Holloman was involved in the gun’s discharge

is faultless. But neither the district court’s reasoning nor the circumstances proved at trial

rule out the possibility that the “human intervention” that precipitated the discharge was

something less than reckless conduct. Given that a conviction requires proof that

Holloman engaged in a “conscious or intentional act in connection with the discharge”

that “increase[d] the likelihood that the gun [would] discharge accidentally, involuntarily,

or reflexively,” Engle, 743 N.W.2d at 596, we will affirm if the circumstantial evidence

would allow only for such a finding. But the district court did not make any finding as to

what Holloman was doing with the gun when it discharged, or how he was doing it, and

the record does not allow for anything other than speculation as to what that conduct

might have been.

       The district court seems to say that Holloman’s merely possessing or handling the

loaded gun inside the occupied daycare is sufficient to establish recklessness. The state

does not support that theory with any legal authority. And as a matter of law, we know

that loaded guns can indeed be possessed where people are present. See Minn. Stat.

§ 624.714, subds. 1(a) (permitting a person to carry a pistol in public with a permit), 9(1)

(allowing a person to carry a pistol in his dwelling or place of business without a permit)

(2014). Obviously, intentionally discharging a firearm without reason inside the occupied

house would have been reckless, as would intentionally twirling it around, or engaging in


                                              7
a host of other foolish conduct. But again, the district court made no findings as to any

act, let alone an intentional or reckless act by Holloman, and the only basis for its

decision—the gun’s mere close proximity to people—does not by itself constitute

reckless behavior, even if those people are children or those caring for them.

       Given the lack of any finding or evidence about what Holloman was doing with

the gun when it discharged, a reasonable fact finder cannot rule out the possibility that the

gun was fired by accident rather than in connection with a “conscious or intentional act”

that made it more likely that the gun would discharge. It is true that Holloman’s moving

the gun from the bedroom to the garage and ultimately out of the house after the

discharge implies a guilty conscience. But negligent or accidental conduct could

reasonably precipitate the same guilt-based concealment and deceit, and this is conduct

that the district court’s findings and reasoning do not exclude.

       Because the district court’s findings and rationale allow for a reasonable, innocent

hypothesis, we hold that the circumstantial evidence presented at trial cannot support

Holloman’s conviction. Holloman cites alleged constitutional trial errors in a pro se

supplemental brief. Our holding renders those alleged errors irrelevant, and we do not

consider them.

       Reversed.




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