                         This opinion will be unpublished and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
                                    A15-0127

                                  State of Minnesota,
                                     Respondent,

                                           vs.

                               Michael David Henderson,
                                      Appellant.

                                Filed January 19, 2016
                                       Affirmed
                                      Ross, Judge

                            Hennepin County District Court
                              File No. 27-CR-14-8400

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

Michael O. Freeman, Hennepin County Attorney, Elizabeth R. Johnston, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Suzanne M. Senecal-Hill,
Assistant Public Defender, St. Paul, Minnesota (for appellant)


      Considered and decided by Ross, Presiding Judge; Halbrooks, Judge; and

Chutich, Judge.

                        UNPUBLISHED OPINION

ROSS, Judge

      Former Sam’s Club employee Michael Henderson was attempting to rob the Sam’s

Club store at gunpoint when he trained his .22 caliber handgun at an employee’s chest and
pulled the trigger. A malfunction prevented the gun from discharging. A jury found

Henderson guilty of attempted second-degree murder, and Henderson appeals his

conviction. He argues that the evidence is insufficient to prove that he attempted to fire the

gun at the employee because the store’s surveillance video footage does not show the

employees reacting as if he did. Sufficient testimonial evidence defeats Henderson’s

argument, and we affirm his conviction.

                                          FACTS

       A Bloomington Sam’s Club supervisor was closing the store on a March 2014

evening when a man outside walked up to the door wearing a black ski mask, a Sam’s Club

vest, and black gloves. The masked man told P.B., the supervisor, that he was an overnight

employee. It was a cold night, so the gloves and ski mask caused P.B. no immediate

suspicion. He let the man inside.

       The masked man walked upstairs and into a room where the store’s assistant

manager, M.O., was participating on a conference call. He told M.O. he needed help putting

his walkie-talkie away. M.O. supposed that the man was a new cart attendant. So he led

him to a room and pointed to the walkie-talkie chargers. The masked man then brandished

a handgun, pointed it at M.O.’s face, and told M.O. to empty the safe or be shot. M.O.

opened the safe and the man ordered him to put the money into a plastic bag the man was

carrying. M.O. complied.

       The masked man collected the money and left the office. M.O. dialed 9-1-1.

       The man walked back downstairs and toward the store’s exit. He was carrying the

bag full of money. N.H., another employee, was also walking toward the exit, just ahead


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of the masked man. P.B. was still stationed near the exit, and, in keeping with store

practice, he asked the man to open his bag so he could check it, presumably for any stolen

merchandise.

       The masked man again drew his handgun. He pointed it at P.B., then at N.H.’s face,

then back at P.B.’s chest. He told the two employees to step back. N.H. then recognized

the masked man’s voice as belonging to Michael Henderson, his former coworker at the

store. While Henderson trained the gun at P.B.’s chest, P.B. and N.H. heard a “click” sound,

and both believed Henderson had just pulled the trigger. The gun did not fire. One of the

two men saw Henderson pull the trigger again while he pointed the gun at P.B.’s chest, and

again the gun did not fire.

       The two employee’s watched as the masked man retreated into the store, and P.B.

radioed M.O. for help. M.O. told P.B. to open the door and let the robber leave. P.B. let

him out but followed him into the parking lot, hoping to identify the license plate of any

escape vehicle.

       Henderson, still masked, instead jumped a nearby fence and fled across Interstate

Highway 494. Police arrived and saw a man trying to stop and enter a car on the highway,

but the driver sped away. Police apprehended the man and identified him as Michael

Henderson. They found his gloves stuck in the fence, his vest and ski mask near the

highway, and his plastic bag with the stolen money and a .22 caliber semi-automatic

handgun also near the highway.




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       Police examined the gun. It was operable and its safety had been placed in the firing

position. But a spent cartridge casing was lodged in the barrel, preventing a live round from

entering and the gun from firing.

       The state charged Henderson with one count of first-degree aggravated robbery, two

counts of attempted second-degree murder, one count of attempted first-degree aggravated

robbery, and one count of second-degree assault. Henderson conceded at trial that he

committed first-degree aggravated robbery. The jury found him guilty of attempted second-

degree murder of P.B. It did not find him guilty of attempted murder of N.H., but it did

find him guilty of the lesser-included offense of second-degree assault. Henderson was

acquitted of attempted first-degree aggravated robbery and second-degree assault of the

highway driver.

       Henderson appeals his attempted second-degree murder conviction and his

sentence.

                                     DECISION

                                              I

       Henderson argues that the lack of evidence requires us to reverse his conviction for

attempted second-degree murder. When considering an insufficient-evidence argument on

appeal, we review to determine whether the record contains evidence that, when viewed in

a light most favorable to the conviction, supports the verdict. State v. Ortega, 813 N.W.2d

86, 100 (Minn. 2012). We assume that the jury believed the state’s witnesses and

disbelieved contrary evidence. Id. We will not reverse the conviction if the jury, honoring




                                             4
the presumption of innocence and its duty not to convict without proof beyond a reasonable

doubt, could reasonably find the defendant guilty. Id.

       Henderson’s argument relies substantially on footage from the surveillance video.

He first maintains that the video fails to show that P.B. or N.H. reacted as though they had

actually witnessed him pulling the handgun’s trigger. The argument might persuade a fact-

finder to reject P.B.’s and N.H.’s testimony as incredible. But on appeal, we do not look to

the evidence to determine whether it could have led a reasonable jury to acquit; we look to

determine whether it could have led a reasonable jury to convict. In this case, we therefore

consider whether the evidence could have led the jury reasonably to find that Henderson

attempted to murder P.B.       An attempted-murder conviction requires proof that the

defendant took a substantial step toward committing murder. See Minn. Stat. § 609.17,

subd. 1 (2012); Minn. Stat. § 609.19, subd. 1(1) (2012). The state presented evidence that

Henderson took a substantial step by pulling the handgun’s trigger while he pointed the

gun at P.B.’s chest. We may uphold a conviction even on a single eyewitness’s testimony.

See, e.g., Caldwell v. State, 347 N.W.2d 824, 828 (Minn. App. 1984). Among other

evidence, P.B. testified, “I saw him pull the trigger and I heard the sound.” N.H. also

testified to hearing a “click” sound while Henderson pointed the gun at P.B. Our standard

of review requires us to assume that the jury believed this testimony despite the employees’

lack of reaction on the surveillance footage. This leads us to sustain the conviction.

       Henderson argues also that P.B.’s following him outside after the confrontation also

indicates that P.B. had not really seen Henderson pull the trigger. In light of the testimony

and our deferential standard of review, again, we must assume that the jury believed P.B.’s


                                             5
testimony regardless of whether P.B.’s behavior confirmed the testimony. The argument

must therefore fail. And we add that the result would likely be the same even under a less-

deferential standard of review. This is because P.B.’s following Henderson outside does

not apparently conflict with his testimony that he witnessed Henderson pull the trigger.

Rather, it corroborates the testimony. P.B.’s following the gun-wielding robber outside

suggests that P.B. had some reason not to fear the robber’s gun. A jury could conclude that

Henderson supplied that reason by pulling the trigger with no discharge. In other words,

the jury could reasonably infer that P.B. knew he could safely pursue Henderson because

he had just witnessed Henderson do something that convinced him that Henderson’s gun

was no threat—something like, for example, twice pulling the trigger with no discharge.

                                             II

       Henderson argues in his pro se supplemental brief that the district court should

modify his sentences because they are excessive and must run in concurrent terms rather

than consecutively.

       He first argues that his sentencing did not adequately reflect his intoxicated state

during the crime. But the sentencing guidelines reject voluntary alcohol use as a mitigating

factor in sentencing. Minn. Sent. Guidelines 2.D.3.a.(3) (2013). We therefore find no error

on this basis.

       Henderson also argues that his sentence fails to take into account aspects of his

personal history, including his education, volunteer work, and lack of prior criminal

history. The district court imposed presumptive sentences for Henderson’s convictions.

The district court has such wide sentencing discretion that we generally do not review a


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district court’s decision imposing a sentence within the guidelines presumptive range. State

v. Delk, 781 N.W.2d 426, 428 (Minn. App. 2010), review denied (Minn. July 20, 2010).

This is in part because “[t]he sentence ranges provided in the [Sentencing Guidelines] Grids

are presumed to be appropriate.” Minn. Sent. Guidelines 2.D.1 (2013). The supreme court

in dicta predicted that a sentence within the presumptive guidelines range would be

reversed only in “rare” cases. State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981). We will not

exercise our authority to alter a sentence within the presumptive sentence range unless

“compelling circumstances” warrant it. State v. Freyer, 328 N.W.2d 140, 142 (Minn.

1982). Our review of the record convinces us that the district court sufficiently evaluated

Henderson’s personal history in making its sentencing decision and that Henderson

presents no compelling circumstance warranting a reversal and a different sentence.

       Henderson maintains that the probation officer who prepared his presentence

investigation report was biased. But he points us to no evidence of this alleged bias and has

not developed the argument that the bias would require a different sentence.

       Affirmed.




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