State v. McCormick

CONNOLLY, Judge

(concurring in part, dissenting in part).

I concur with part II of the decision, but I respectfully dissent from part I. I would affirm the district court’s decision to deny appellant’s motion for judgment of acquittal. I believe that, under the appropriate *511 standard of review, the evidence was sufficient to support the jury’s verdict.

“A motion for judgment of acquittal is properly denied where the evidence, viewed in the light most favorable to the State, is sufficient to sustain a conviction.” State v. Simion, 745 N.W.2d 830, 841 (Minn.2008); see also Minn. R.Crim. P. 26.03, subd. 18(1), (3) (providing that a defendant may move for judgment of acquittal at the close of evidence of either party “if the evidence is insufficient to sustain a conviction” or within 15 days after the jury is discharged if the jury returns a verdict of guilty). As the supreme court’s statement in Simion demonstrates, a post-verdict motion for judgment of acquittal is a motion challenging the sufficiency of the evidence to sustain the conviction. “In assessing the sufficiency of the evidence, we review the evidence to determine whether the facts in the record and the legitimate inferences drawn from them would permit the jury to reasonably conclude that the defendant was guilty beyond a reasonable doubt of the offense of which he was convicted.” State v. Al-Naseer, 788 N.W.2d 469, 473 (Minn.2010) (quotation omitted). “The jury’s verdict will be upheld if, giving due regard to the presumption of innocence and to the state’s burden of proof beyond a reasonable doubt, the jury could reasonably have found the defendant guilty.” Id. (quotation omitted). I believe this articulation of the appropriate standard of review is properly more deferential to the jury’s verdict.

I disagree that the circumstances proved are consistent with a rational hypothesis of innocence, specifically that appellant did not act with culpable negligence and that his actions were not the proximate cause of J.B.’s death. I believe that when viewing the verdict with the proper deference, the only rational hypotheses supported by the reasonable inferences drawn from the circumstances proved are that appellant acted with culpable negligence and that his actions were the proximate cause of J.B.’s death.

To establish second-degree manslaughter, the state was required to prove beyond a reasonable doubt that appellant acted with (1) objective gross negligence; and (2) subjective “recklessness in the form of an actual conscious disregard of the risk created by the conduct.” State v. Frost, 342 N.W.2d 317, 320 (Minn.1983). Here, there was direct evidence of appellant’s objective gross negligence. And I disagree that there are “rational inferences other than that appellant intentionally or in conscious disregard of the risk toppled the deer stand.”

First, the state did not need to prove that appellant intentionally toppled the deer stand. Rather, the state was required to prove beyond a reasonable doubt that appellant acted with subjective recklessness. This element required that the jury have sufficient evidence to make a finding as to appellant’s state of mind. As the supreme court has noted, “[a] state of mind generally is proved circumstantially, by inference from words and acts of the actor both before and after the incident. A [fact-finder] is permitted to infer that a person intends the natural and probable consequences of their actions.” State v. Johnson, 616 N.W.2d 720, 726 (Minn.2000) (citation omitted). Because the state relied on circumstantial evidence to prove appellant acted with subjective recklessness, “the circumstances proved must be consistent with the hypothesis that the accused is guilty and inconsistent with any other rational hypothesis except that of guilt.” Al-Naseer, 788 N.W.2d at 473 (quotation omitted).

The circumstances proved in this case are as follows. On the evening of November 5, appellant approached J.B.’s hunting *512 party and angrily informed them that a deer stand was trespassing on his property. The deer stand was a scaffold between approximately 10 feet high constructed from one-inch metal tubing, with a plywood floorboard. The seating area at the top of the stand was surrounded by a metal rail wrapped in a canvas tarp. On the morning of November 6, members of a different hunting party overheard an argument coming from the vicinity of J.B.’s deer stand. They heard an angry voice make accusations of trespassing and then shout “get out.” They the'n heard a loud crash and one of them heard someone apologizing. In a 911 call, appellant reported that “as I climbed up his stand to remove his tarp his whole stand and me and him tipped over.” 5 In a video reenactment, appellant pulls over the deer stand with one hand.

In my view, the circumstances proved are inconsistent with a rational hypothesis other than guilt. Appellant’s actions before the incident indicate that he was very angry about the deer stand trespassing on his land. Other hunters in the area overheard him angrily confront J.B. and shout “get out.” He admitted on the 911 call that he climbed on the stand to remove the tarp that wrapped around the railing. It was clear that the deer stand was unsteady when appellant simply placed a hand or foot on the stand. We infer that a person intends the natural and probable consequences of his actions. Johnson, 616 N.W.2d at 726 . The circumstances proved demonstrate that, in climbing the deer stand to remove the tarp, appellant acted with a conscious disregard of the risk created by his conduct. There are no reasonable inferences from appellant’s actions on that morning that are inconsistent with subjective recklessness.

I also disagree that there are rational inferences other than that appellant’s actions were not the proximate cause of J.B.’s death. The circumstances proved regarding proximate cause were as follows. Appellant angrily confronted J.B. at the deer stand, and other hunters heard a loud crash or thud. J.B. fell from the tree stand and remained on the ground for approximately five minutes after his fall. Appellant called 911 to report that the tree stand had tipped over and that J.B. had fallen from the stand. Back at the campsite, a member of J.B.’s party observed J.B. get out of his truck, walk very slowly, and sit down in a chair that had been set up for him. J.B. was uncharacteristically quiet at lunch, and his face was flushed. 6 After lunch, another member of the party walked with J.B. to a different hunting stand. J.B. walked slowly, hung onto tree branches, and stopped frequently to catch his breath. A member of J.B.’s hunting party found him hours later that day back at the cabin in severe pain and distress.

Appellant argues that the circumstances proved support an inference that J.B. fell from, or was injured at, a second tree stand in the afternoon. But this is pure speculation. “We will not overturn a conviction based on circumstantial evidence on the basis of mere conjecture.” Al-Naseer, 788 N.W.2d at 473 (quotation omitted). While a soda can and heater were found in the second tree stand and J.B.’s hat and *513 chair were found below the tree stand, there is absolutely no evidence whatsoever of a second fall. There is no evidence, for example, of an impression in the ground from a second fall, or that the chair and hat were lying haphazardly, as if they had fallen from the tree stand. This is not like Al-Naseer , where the supreme court held that the circumstances proved were consistent with a rational hypothesis other than that Al-Naseer had known that he had hit a person or a vehicle because there was some evidence to indicate that Al-Naseer had been asleep at the wheel. Id. at 477 . Rather, this case is comparable to State v. Tscheu, 758 N.W.2d 849, 861 (Minn.2008), in which the supreme court stated that, “Tscheu’s hypothesis that he engaged in consensual vaginal sex with Thoms and that Thoms was subsequently attacked and murdered by a different person is not reasonable.” Similarly, here, appellant’s hypothesis that J.B. fell out of one tree stand in the morning due to appellant’s actions, and subsequently fell out of a second tree stand in the afternoon, is not reasonable. In fact, it is simply incredible.

Because the record contains competent evidence reasonably tending to sustain the verdict, and because the circumstances proved are inconsistent with a rational hypothesis of innocence, I would affirm the district court’s denial of appellant’s motion for judgment of acquittal.

. Although appellant later changed his story and argued that he had simply been handing appellant his business card, in accordance with our standard of review, we must view the facts in the light most favorable to the state. See Simion, 745 N.W.2d at 841 .

. I am not persuaded that J.B.’s ability to fire a gun over the lunch hour disproves that he was injured from his fall from the deer stand. The jury heard this evidence and was similarly unpersuaded. The human body's ability to mask pain with adrenaline has been well documented.