State v. Jones

State of Minnesota, Respondent, v. Davion Lee Jones, Appellant.

A19-1625

STATE OF MINNESOTA IN COURT OF APPEALS

January 4, 2021

This opinion is nonprecedential except as provided by Minn. R. Civ. App. P. 136.01, subd.1(c).

Affirmed

Bratvold, Judge

Washington County District Court

File No. 82-CR-18-1220

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Pete Orput, Washington County Attorney, Nicholas A. Hydukovich, Assistant County Attorney, Stillwater, Minnesota (for respondent)

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

Considered and decided by Worke, Presiding Judge; Reilly, Judge; and Bratvold, Judge.

NONPRECEDENTIAL OPINION

BRATVOLD, Judge

In this appeal following the final judgments of conviction for drive-by shooting and first-degree assault, appellant argues that (1) the district court erred by refusing to instruct the jury that a witness, Z.S., was an accomplice as a matter of law; (2) the evidence is insufficient to sustain the convictions because the accomplice testimony was uncorroborated; (3) the district court abused its discretion by admitting videos of appellant with firearms as Spreigl evidence; and (4) the district court erred by sentencing appellant twice for a single behavioral incident. Because the record evidence conflicted as to whether Z.S. was an accomplice, the district court did not abuse its discretion by instructing the jury on accomplice corroboration. We also determine that the record evidence sufficiently corroborated the accomplice testimony and sustained appellant's conviction, and the district court did not abuse its discretion by admitting the videos as Spreigl evidence or imposing two sentences for the drive-by shooting and assault. We therefore affirm.

FACTS

The following summarizes the evidence presented at appellant Davion Lee Jones's jury trial, which we view in a light favorable to the jury verdict.

On March 3, 2018, Jones travelled from Chicago to Minneapolis to attend a ceremony for the recently deceased father of his ex-girlfriend, Courtney.¹ Courtney was upset when some friends, including S.R., did not attend the ceremony. Her social media status stated the ceremony "was a very important day of my life and that for my friends who didn't attend, you know, I don't really have anything to say to them." Using a messaging platform on March 4, S.R. and Courtney argued and threatened each other; S.R.made disparaging remarks about Courtney's father. Around the same time, Courtney's brother called S.R. and told him "I'm going to shoot your dad and kill you."

Courtney decided to go to S.R.'s house in Woodbury and "fight him." Jones, Courtney's brother, Z.S., D.B., and at least three others accompanied Courtney.² Before they left, Courtney told the group "nobody shoot nobody." The group traveled in two vehicles: a pickup truck, and Z.S.'s car. While en route, Courtney's brother asked Z.S. to switch vehicles: Courtney's brother drove Z.S.'s car with Jones as a passenger, while Courtney, Z.S., D.B., and the others drove in the truck.

S.R.'s home is on a corner lot: the front door faces Lake Ridge Drive, and the garage and kitchen window face Addison Way. At around 6 p.m., the pickup truck parked in front of the house on Lake Ridge Drive, while the car parked on Addison Way facing Lake Ridge Drive.

Courtney, Z.S., and the others exited the pickup truck. By text message, Courtney told S.R. to come outside, but he remained inside. S.R.'s father overheard S.R. on the phone with 911. S.R.'s father looked out the front door and saw a group of "five or six Black women." He then went to his kitchen window and saw two Black men sitting in the car parked on Addison Way. S.R.'s father closed the blinds, turned around, and heard gunshots, and one bullet struck him in the back. The bullet fragmented, requiring surgery and a week-long hospital stay.

Just before the gunshots, Z.S., who was with Courtney in front of the house, heard a male voice say, "get back into the car." As Z.S. got back into the pickup truck with Courtney and the others, she heard gunshots. After the gunshots, both groups left S.R.'s home: Courtney's brother and Jones in the car, and the others in the pickup truck. A neighbor's security camera recorded the pickup truck leaving the area at 6:16 p.m., followed by the car.

As they drove off, Z.S. panicked because her "car was just basically at a scene with people outside and gunshots just happening and my car was literally dead smack in front of this person's house . . . ." Z.S. decided she wanted her car, and both vehicles pulled over. Z.S. testified that Courtney's brother was in the driver's seat and Jones was in the front passenger seat. Z.S. got into her car with D.B., while Courtney's brother and Jones moved to the pickup truck.

During the police investigation, S.R. identified Courtney and disclosed their messages. Police arrested Jones and Courtney together as they hid from police at Courtney's workplace. The state charged Jones with aiding and abetting (1) drive-by shooting, Minn. Stat § 609.66, subd. 1e(b) (2016); (2) first-degree assault, Minn. Stat. § 609.221, subd. 1 (2016); and (3) second-degree assault, Minn. Stat. § 609.222, subd. 1 (2016). The state also charged Courtney and her brother with aiding and abetting the drive-by shooting and assault.

Before Jones's jury trial, the state moved to admit seven videos from Jones's social media account showing that Jones "had access to firearms and [had] the ability and knowledge to use a firearm." Jones opposed the motion. The district court admitted threeredacted videos on the condition that the state lay sufficient foundation.³ Two of the videos showed Jones with handguns and bullets and the other video showed him firing a handgun at a shooting range. Later, all three videos were received into evidence.

During trial, the state presented evidence of its investigation. Police investigators testified that they found seven bullet holes on the house exterior. They also found two bullet fragments in the front yard and determined that one bullet went through the kitchen window before hitting S.R.'s father. An expert testified that all shots were fired from the side of S.R.'s home where Z.S.'s car was parked with Courtney's brother and Jones. Trajectory analysis showed that three rounds might have been fired from the street or sidewalk area in front of the house, suggesting that the shooter was likely moving. A forensic examination of Z.S.'s car determined that no shots were fired from inside her car.

Police investigators testified that they recovered seven .45-caliber shell casings between Addison Way and S.R.'s home, but they never found the firearm. An expert testified that the .45-caliber casings were all fired from the same firearm. The expert also testified that the firearm used in the shooting was, in his opinion, one of 58 models of firearms.

The state also called Courtney, Z.S., and D.B. to testify. Courtney's brother did not testify. D.B.'s testimony about the shooting was similar to Z.S.'s testimony. Z.S. was theonly witness to testify that, after they returned to Courtney's house, Jones told her "everything would be fine. Nothing happened in [her] car."

During Courtney's testimony, her account vacillated on what Jones told her as they hid from police just before their arrest.⁴ As she responded to questions about her recorded police statement, she agreed that she said Jones talked to her about the shooting and she asked Jones whether he thought someone had been shot at S.R.'s home. Courtney also agreed she told police that Jones responded, "I just fired at the first person I seen in the window." Courtney testified, however, that Jones only told her that "he [saw] a man in the window looking at them," and he "didn't know if somebody got hit." Courtney also testified Jones told her that after shots were fired "he jumped in the car" through the window because "the doors couldn't open or they don't know how to use [Z.S.'s] car to open the door."

Jones testified in his own defense that he was not at S.R.'s home in Woodbury, did not shoot a gun "at S.R.'s house," and did not "help anyone else . . . shoot at the house." He also testified that he hid from police because he was scared. Finally, Jones testified that the handguns in two of the state's videos were replicas that he used to make music videos. He also testified that the bag of loose ammunition in one video was 9mm caliber.

At the conclusion of testimony, the district court instructed the jury that Courtney's testimony must be corroborated because she was an accomplice. The district court declined to instruct the jury that Z.S. and D.B. were accomplices, but did instruct that "[i]f you findthat any person who has testified in this case is a person who could be charged with the same crimes as the Defendant, you cannot find the Defendant guilty of a crime on that testimony unless that testimony is corroborated."

The jury found Jones guilty on all counts. The district court convicted Jones on two counts and sentenced him to 135 months for the first-degree assault, concurrent with 81 months for the drive-by shooting. The district court did not convict Jones or impose a sentence for the second-degree assault conviction.

Jones appeals.

DECISION

Jones raises four issues on appeal. Because the district court's determination that Z.S. was not an accomplice as a matter of law relates to our analysis of evidence corroborating Courtney's accomplice testimony, we address this issue first. Then we turn to the sufficiency of the evidence, followed by the admission of Spreigl evidence, and conclude with the sentencing issue.

I. The district court did not abuse its discretion by denying Jones's request for a jury instruction that Z.S. was an accomplice as a matter of law.

We review a district court's decision to decline a requested jury instruction for abuse of discretion. State v. Cox, 820...