                             This opinion will be unpublished and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
                                        A13-1463

                                      State of Minnesota,
                                         Respondent,

                                              vs.

                                          John Yang,
                                          Appellant.

                                    Filed January 20, 2015
                                           Affirmed
                                         Reilly, Judge

                                 Ramsey County District Court
                                   File No. 62-CR-12-5714

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

John J. Choi, Ramsey County Attorney, Thomas R. Ragatz, Assistant County Attorney,
St. Paul, Minnesota (for respondent)

Craig E. Cascarano, Minneapolis, Minnesota (for appellant)

         Considered and decided by Chutich, Presiding Judge; Stauber, Judge; and Reilly,

Judge.

                         UNPUBLISHED OPINION

REILLY, Judge

         Appellant John Yang challenges the sufficiency of the evidence supporting his

conviction of attempted second-degree murder, arguing that the state failed to prove

intent to kill. We affirm.
                                          FACTS

       A jury heard the following facts and found appellant guilty of attempted second-

degree murder and second-degree assault. On July 11, 2012, four males picked up L.V.

and drove him to 1244 Burr Street, appellant’s residence1 in St. Paul. Once at 1244 Burr

Street, L.V. got out of the car and walked towards the house. A group of men surrounded

L.V. These men started kicking, punching, and pushing L.V. down the driveway toward

the house’s garage. Soon after, appellant left the house and followed the group down the

driveway. Appellant carried a gun.

       Appellant approached L.V. and held the gun against his forehead and told him that

he “need[ed] to go towards the garage.” L.V. claimed that he was looking directly at

appellant and that appellant was “furious.” L.V. believed that if his assailants got him to

the garage that they would kill him. At some point during the assault, L.V. managed to

escape from the group, ran down the driveway, and crossed the street. The group of men

chased him. In the process of fleeing his assailants, L.V. heard appellant yell, in Hmong,

that “they are going to come kill [L.V.], shoot [L.V.] in [his] house.”

       While running, L.V. heard one gunshot and then heard a second gunshot. One

gunshot hit the front side of the 1233 Burr Street residence.2 The other gunshot shattered

the back window of a Ford Explorer parked in the driveway of 1233 Burr Street. L.V.




1
  Officers learned that L.V. had previously been identified as a suspect in a burglary that
occurred at 1244 Burr Street two days earlier.
2
  1233 Burr Street is located on the opposite side of the street as 1244 Burr Street, to the
southwest.

                                             2
was running on the sidewalk opposite of appellant, directly behind the Ford Explorer,

when the car window was shattered.

       L.V. then ran up to the front door of 1233 Burr Street, knocked on the door, and

asked for help. The homeowner came to the door and saw the shattered window. At this

time, L.V. looked back in the direction of the assault and saw individuals getting into cars

and driving away. L.V. believed that if the homeowner had not answered the door, the

men would have continued chasing him.            The homeowner called 911, and told the

dispatcher that his car window was shot out, and that he saw people leaving in a “little

red car.”

       St. Paul police officers responded to the call. An officer described L.V. as looking

confused and shocked, with scratches on his shoulder. Officers found a bullet slug near

the Ford Explorer and a bullet hole six inches below the homeowner’s living room

window. The bullet passed through the interior wall of the home and struck a loveseat in

the living room. The homeowner testified that the bullet hole near the living room

window was about two and a half to three feet from the ground. He also estimated that

the height of the bullet that hit the Ford Explorer was “around [his] ribcage.”

       Officer Justin Rangel testified that he collected two spent casings from the

driveway of 1244 Burr Street. Officer Rangel opined that, based on the location of where

the bullets hit, they came from a northeast direction. L.V. indicated to an officer that the

shots were fired near the driveway of 1244 Burr Street and the street.

       Soon after the homeowner’s 911 call, the St. Paul police stopped a small red car

about a half a mile away from 1233 and 1244 Burr Street. An officer drove L.V. to the


                                             3
scene of the traffic stop for a “show-up.” L.V. positively identified appellant and three

other occupants of the car as his assailants.

       After taking the suspects to the Ramsey County Law Enforcement Center, an

officer interviewed appellant. Appellant initially denied knowing anything about the

assault or shootings and claimed he had not handled a gun in a long time. Shortly

thereafter, appellant claimed to have gone hunting the day before. The state charged

appellant with attempted second-degree intentional murder, in violation of Minn. Stat.

§ 609.19, subd. 1(1) (2010), and second-degree assault with a dangerous weapon, in

violation of Minn. Stat. § 609.222, subd. 1 (2010).

       A jury trial was held in March 2013. At trial, counsel for appellant argued that

there was not enough evidence to prove that appellant actually possessed or fired the gun.

Appellant did not testify at trial. The jury found appellant guilty of assault in the second

degree with a dangerous weapon and attempted murder in the second degree. The district

court sentenced appellant to 135 months in prison.

       Appellant appeals.

                                      DECISION

       Appellant argues that the evidence is insufficient to prove beyond a reasonable

doubt that he intended to kill L.V. The state contends that the evidence is sufficient

because appellant’s behavior and words clearly demonstrated intent to kill.

       An appellate court reviews a sufficiency-of-the-evidence challenge to “determine

whether the evidence, when viewed in the light most favorable to the conviction, was

sufficient to allow a jury to reach a guilty verdict.” State v. Hurd, 819 N.W.2d 591, 598


                                                4
(Minn. 2012).     We must assume that “the jury believed the state’s witnesses and

disbelieved any evidence to the contrary.” State v. Caldwell, 803 N.W.2d 373, 384

(Minn. 2011). The verdict will not be disturbed “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 guilty of the charged offense.” State v.

Ortega, 813 N.W.2d 86, 100 (Minn. 2012).

       To convict a defendant on a charge of attempted second-degree intentional murder

the state must prove beyond a reasonable doubt that the defendant acted with intent to

effect the death of the victim. Minn. Stat. § 609.19, subd. 1(1). An attempt to commit a

crime is “an act which is a substantial step toward, and more than preparation for, the

commission of the crime . . . .” Minn. Stat. § 609.17, subd. 1 (2010). To convict

appellant of attempted second-degree intentional murder, the state had to prove that

(1) his acts constituted a substantial step toward, and more than preparation to murder

L.V., and (2) appellant intended to kill L.V.

       Minnesota defines “intent” to mean “the actor either has a purpose to do the thing

or cause the result specified or believes that the act, if successful, will cause that result.”

Minn. Stat. § 609.02, subd. 9(4) (2010). Courts have often observed that because intent

is a state of mind, it is generally provable only by inferences drawn from a person’s

words or actions in light of the surrounding circumstances. See, e.g., State v. Cooper,

561 N.W.2d 175, 179 (Minn. 1997) (taking into account the number of shots fired and the

location of the shooter in its intent determination). In this case, although the state offered

some direct evidence of intent, the state primarily relied on circumstantial evidence to


                                                5
prove that appellant intended to kill L.V. See Bernhardt v. State, 684 N.W.2d 465, 477

n.11 (Minn. 2004) (defining direct evidence as “evidence that is based on personal

knowledge or observation and that, if true, proves a fact without inference or

presumption”).

       In reviewing sufficiency-of-the-evidence claims, we generally apply a heightened

standard of review if the state’s evidence on one or more elements of the offense consists

solely of circumstantial evidence. State v. Porte, 832 N.W.2d 303, 309 (Minn. App.

2013) (citing State v. Al-Naseer, 788 N.W.2d 469, 473 (Minn. 2010)). This court reviews

the sufficiency of circumstantial evidence by (1) identifying the circumstances proved,

and (2) examining independently the reasonableness of all inferences that might be drawn

from those circumstances, including inferences not consistent with guilt.         State v.

Anderson, 789 N.W.2d 227, 241-42 (Minn. 2010). Under the heightened standard, “the

circumstances proved [must be] consistent with guilt and inconsistent with any rational

hypothesis except that of guilt. Id. at 242. But a conviction based on circumstantial

evidence will not be overturned “on the basis of mere conjecture.” Id.

       A.     Circumstances Proved

       In identifying the circumstances proved, we consider only those circumstances

consistent with the verdict and reject the evidence in the record that conflicts with the

circumstances proved by the state. State v. Hawes, 801 N.W.2d 659, 670 (Minn. 2011).

In convicting appellant, the jury found that the state proved the elements of second-

degree assault and attempted second-degree murder beyond a reasonable doubt. The

following circumstances are consistent with the verdicts: that (1) appellant was present at


                                            6
1244 Burr Street on July 11, 2012, (2) appellant was involved in a physical altercation

involving L.V. in the driveway of 1244 Burr Street, (3) appellant brought a gun and held

the gun to L.V.’s forehead, (4) the men chased appellant as he ran away from the

altercation, (5) appellant fired two shots at L.V. as L.V. ran away from the altercation,

(6) the two bullets fired were in the general proximity of L.V., and (7) appellant told L.V.

that he was going to kill him.

       B.     Rational Inferences

       The second step of the analysis is to determine whether there are any rational

inferences that are consistent with the proven circumstances and yet inconsistent with

guilt. Anderson, 789 N.W.2d at 242. Appellant contends that although one reasonable

inference is that he attempted to kill L.V., it is also reasonable to infer that appellant did

not intend to hit L.V. or that he was only attempting a first-degree assault. We disagree.

       Although there was some direct evidence from appellant’s own statement that he

would kill L.V., proof of intent primarily depended on inferences from circumstantial

evidence—from appellant’s acts. Appellant supports his argument by pointing out that

there was no evidence submitted detailing the trajectory of the shooting, and the only

testimony regarding the shooting was from L.V. and the neighbors. The record, however,

shows that officers found bullet casings in the driveway of 1244 Burr Street, and L.V.

testified that he was on the sidewalk in front of the Ford Explorer when the shots were

fired. Moreover, a conviction may rest on the testimony of a single, credible witness.

State v. Foreman, 680 N.W.2d 536, 539 (Minn. 2004).




                                              7
       Our caselaw has upheld the inference of intent to kill in several gunshot scenarios.

In State v. Chuon, this court concluded that intent to kill may be inferred from the firing

of a single shot. 596 N.W.2d 267, 271 (Minn. App. 1999), review denied (Minn. Aug. 25,

1999). In Chuon, the defendant fired at the victim, striking him in the shoulder blade

from a distance of about six to eight feet. Id. In State v. Whisonant, the supreme court

found intent to kill when the defendant fired a single shot from a “pen gun” at two police

officers 12 feet away, even though one of the officers was only hit by particles from the

discharge. 331 N.W.2d 766, 768 (Minn. 1983).          In State v. Berg, this court found

sufficient evidence of intent when the defendant threatened two victims, pointed a gun at

one, and later fired shots through a door at the victims. 358 N.W.2d 443, 446 (Minn.

App. 1984), review denied (Minn. Feb. 5, 1985).

       Here, the evidence reasonably supports a jury’s finding that appellant intended to

cause the death of a human being and that he took a significant step toward doing so by

shooting at L.V. And the facts legitimately support the inference that appellant intended

the natural and probable consequences of shooting a gun at another person. See State v.

Johnson, 616 N.W.2d 720, 726 (Minn. 2000). Although one inference is that appellant

only intended to scare L.V. by shooting the gun at him, when considering the facts in

conjunction with appellant’s statements about killing L.V., it is not a reasonable inference

that appellant’s intent was only to scare L.V. See State v. Ness, 431 N.W.2d 125, 126

(Minn. 1988) (discussing the availability of direct intent evidence in the form of witness

testimony about prior threats or statements).




                                                8
       We conclude that the circumstantial evidence is consistent with appellant’s guilt

and not consistent with any alternative rational hypothesis. Consequently, the evidence is

sufficient to sustain appellant’s conviction.

       Affirmed.




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