State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A17-0838

State of Minnesota,
Respondent,

vs.

Antonio Odall Lewis,
Appellant.

Filed May 7, 2018
Affirmed
Johnson, Judge

Sherburne County District Court
File No. 71-CR-16-1021

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

Kathleen A. Heaney, Sherburne County Attorney, George R. Kennedy, Assistant County
Attorney, Elk River, Minnesota (for respondent)

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

Considered and decided by Hooten, Presiding Judge; Kirk, Judge; and Johnson,
Judge.
U N P U B L I S H E D O P I N I O N
JOHNSON, Judge
A Sherburne County jury found Antonio Odall Lewis guilty of three offenses,
including second-degree assault and possession of a firearm by an ineligible person. The
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jury’s verdicts are based on evidence that Lewis fired a handgun at a woman (but missed
her). Lewis challenges the sufficiency of the evidence on the assault conviction and the
district court’s decision not to give the jury an alibi instruction. We affirm.
FACTS
This appeal arises from a middle -of-the-night incident at a multi -unit apartment
building in the city of St. Cloud in which a shot was fired at a resident of the building while
she was standing in a hallway near her apartment.
After an investigation, t he state charged Lewis with three offenses: (1) possession
of a firearm by a prohibited person, in violation of Minn. Stat. § 624.713, subd. 1(2) (2016);
(2) second-degree assault with a dangerous weapon, in violation of Minn. Stat. § 609.222,
subd. 1 (2016); and (3) reckless discharge of a firearm within a municipality, in violation
of Minn. Stat. § 609.66, subd. 1a(a)(3) (2016). The case was tried to a jury on three days
in February 2017. The state called six witnesses, who testified as described below.
S.F. testified that, a t approximately 2:30 a.m. on July 27, 2016, she awoke to the
sound of an argument in her multi-unit apartment building. She walked out of her second-
floor apartment and saw several people gathered near the door of her next -door neighbor,
T.S.-L., with whom S.F. was very familiar. S.F. saw T.S.-L., T.S.-L.’s adult daughter, and
a young girl. T.S.-L. and her daughter were standing in the hallway, arguing with Lewis,
who was inside T.S. -L.’s apartment . S.F. previously had seen Lewis at the apartment
building on several occasions when he came to visit T.S.-L., and S.F. had given him rides
a few times. Based on those prior interactions, S.F. recognized Lewis’s voice on this
occasion. S.F. approached T.S.-L.’s apartment and asked the women if they were all right.
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Lewis told S.F., “Please go back into your apartment. You don’t know what I’m capable
of.” S.F. replied that she wanted to make sure that Lewis did not harm T.S.-L. or her
daughter. S.F. and Lewis argued, and Lewis referred to her by a derogatory word.
As S.F. turned around toward her own apartment, Lewis quickly went down a flight
of stairs and exited the building through a nearby exterior door, which was open . S.F.
talked to T.S.-L., her daughter, and the young girl to “mak[e] sure they were okay.” S.F.
then heard a loud bang, heard something whiz past her ear, smelled gunpowder, and fell to
the floor. Lewis said to her, “Oh, my God, . . . did I shoot you? Are you okay?” Lewis
then fled. S.F. crawled back to her apartment. She later called 911. Later that day, Lewis
called T.S.-L.’s cell phone and spoke with S.F. Lewis apologized to her , saying that “it
never meant to happen.” Lewis also offered S.F. “some money not to talk.”
M.A. testified that she lived in an apartment building across the street. On the night
in question, she was outside smoking a cigarette when she heard arguing and yelling. She
saw a man shoot a gun and heard a gunshot and a loud scream. She later saw the shooter
place an object between two mattresses that were leaning against a nearby dumpster. She
did not know who the shooter was but had seen him before at the multi-unit apartment
building across the street. Shortly thereafter, she saw a different, younger man reach under
the mattresses leaning against the dumpster and grab what she believed was a handgun.
She called 911.
Three police officers who responded to the 911 calls testified about their response
and subsequent investigation. Sergeant Koeniguer testified that officers searched the area
near the dumpster but did not find a handgun. Investigator Peters testified about his
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interview of S.F. and his conversation s with three witnesses . S.F. initially told him that
she did not know who shot at her. She later admitted that she had lied and that she did
know who shot at her. Because she was afraid, S.F. asked Investigator Peters to meet her
at a nearby parking lot, where she told him that she knew the shooter by his nicknames,
Cubby and Caba. Investigator Peters compiled a photo array of six persons. S.F. identified
the photo of Lewis as the shooter and said that she was “100 percent certain.”
Investigator Peters also testified about his interviews of Lewis, who said that he was
at his home throughout the night and early morning hours of July 26 and 27, 2016, and that
he had his cell phone with him. Investigator Peters further testified that he obtained data
concerning the cell phone that is registered to Lewis , which indicated that no calls were
made on the phone between 12:02 a.m. and 2:30 a.m. but that more than ten calls were
made on the phone between 2 :30 a.m. and 3:01 a.m. The data also showed that text
messages were sent from Lewis’s cell phone at approximately 2:38 a.m. asking two friends
for a ride.
Lewis called two witnesses. He first called his 18-year-old niece, with whom he
shares a home. She testified that she was at home throughout the night and early morning
hours of July 26 and 27, 2016; that she woke up at approximately 3:00 a.m. when she
received a phone call; and that she talked on the phone “for at least an hour or two” before
she saw a police officer drive by. She testified that she went downstairs to check on family
members and saw Lewis sleeping on the living-room floor. Lewis also called his 27-year-
old son, A.L., as a witness. He testified that he was living in the same multi-unit apartment
building in which the shooting occurred and was home throughout that night but that he
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did not hear anything. He also testified that he and Lewis had not seen each other in the
16 years before the incident.
At the instructions conference , Lewis requested an alibi instruction. The district
court denied the request. In closing argument, Lewis’s attorney summarized the evidence
that Lewis was not in the multi-unit apartment building at the time of the incident and urged
the jury to conclude that, for that reason, he could not have committed any of the charged
offenses.
The jury found Lewis guilty o f all three charges. The district court imposed
concurrent prison s entences of 60 months on count 1 and 71 months on count 2. Lewis
appeals.
D E C I S I O N
I. Sufficiency of the Evidence
Lewis argues that the evidence is insufficient to support his conviction of second -
degree assault. For purposes of this issue, h e does not contend that there is in sufficient
evidence that he was present at the scene or that he fired a handgun. Rather, he contends
that the evidence is insufficient to prove that he intentionally fired a handgun toward S.F.
He contends that the circumstantial evidence is consistent with the inference of an
accidental discharge of a handgun.
A person is guilty of second-degree assault if he “assaults another with a dangerous
weapon.” Minn. Stat. § 609.222, subd. 1. The word “assault” is defined to mean “(1) an
act done with intent to cause fear in another of immediate bodily harm or death; or (2) the
intentional infliction of or attempt to inflict bodily harm upon another.” Minn. Stat.
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§ 609.02, subd. 10 (2016). In this case, the state sought to prove that Lewis engaged in the
first type of assault because he intended to cause fear in S.F. of immediate bodily harm or
death. Second-degree assault by causing fear is a specific-intent crime, which means that
a defendant m ust intend to cause that particular result. State v. Fleck , 810 N.W.2d 303,
308-09 (Minn. 2012) ; State v. Hough , 585 N.W.2d 393, 39 5-96 (Minn. 1998). The
requisite intent may be inferred from the “natural and probable consequences” of the
defendant’s actions. Hough, 585 N.W.2d at 396-97.
In determining whether there is sufficient evidence to support a conviction, we
ordinarily undertake “a painstaking analysis of the record to determine whether the
evidence, when viewed in the light most favorable to the conviction, was sufficient to ”
support the conviction. State v. Ortega , 813 N.W.2d 86, 100 (Minn. 2012) (quotation
omitted). We 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) (quotation
omitted). “[W]e will not disturb the verdict 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 w as guilty of the charged offense.” Ortega, 813
N.W.2d at 100.
The parties agree that Lewis’s conviction rests on circumstantial evidence and that
we should apply the standard of review that is appropriate for circumstantial evidence. In
reviewing a convi ction based on circumstantial evidence, we apply a two-step analysis.
State v. Moore , 846 N.W.2d 83, 88 (Minn. 2014). First, we “identify the circumstances
proved.” Id. (quoting State v. Andersen , 784 N.W.2d 320, 329 (Minn. 2010)). “In
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identifying the circumstances proved, we assume that the jury resolved any factual disputes
in a manner that is consistent with the jury’s verdict.” Id. (citing Andersen, 784 N.W.2d at
329). Second, “we examine independently the reasonableness of the inferences that might
be drawn from the circumstances proved” and “determine whether the circumstances
proved are consistent with guilt and inconsistent with any rational hypothesis except that
of guilt.” Id. (quotations and alterations omitted). “To sustain a conviction b ased on
circumstantial evidence, the reasonable inferences that can be drawn from the
circumstances proved as a whole must be consistent with the hypothesis that the accused
is guilty and inconsistent with any rational hypothesis except that of guilt.” State v. Harris,
895 N.W.2d 592, 598 (Minn. 2017) (quotation omitted).
At the first step of the circumstantial -evidence analysis, we identify the
circumstances proved that are relevant to the question whether Lewis intended to fire a
handgun at S.F. and cause her fear of immediate bodily harm or death . See Moore, 846
N.W.2d at 88. The relevant circumstances proved are as follows: (1) Lewis and S.F.
engaged in an argument . (2) Lewis told S.F. to leave, saying, “Please go back into your
apartment. You don’t know what I’m capable of .” (3) Lewis quickly went down a set of
stairs and out an exterior door, where he was alone . (4) A neighbor saw a man who was
standing near the exterior doorway shoot a gun into the apartment building and heard a
gunshot. (5) S.F. heard a gunshot, smelled gunpowder, heard a bullet fly by her ear, and
fell to the ground . (6) A bullet from a gun , which was traveling in an upward trajectory,
was lodged in the wall approximately six inches above where S.F.’s head had been .
(7) Immediately after the shot, Lewis said to S.F., “Oh, my God, . . . did I shoot you? Are
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you okay?” (8) Lewis apologized to S.F. later that day and offered to give her money in
exchange for her promise not to tell anyone about the shooting.
At the second step of the analysis, “we examine independently the reasonableness
of the inferences that might be drawn from the circumstances proved” and “determine
whether the circumstances proved are consistent with guilt.” Id. (quotations and alterations
omitted). The state’s theory is that Lewis pointed a handgun at S.F. and fired it with intent
to cause her fear of immediate bodily harm or death . We agree with the state that it is
reasonable to infer from the circumstances proved that Lewis fired a handgun toward S.F.
with intent to cause her fear of immediate bodily harm or death.
At the second step of the analysis, we also determine “whether the circumstances
proved are consistent with guilt and inconsistent with any rational hypothesis except that
of guilt.” Id. (quotation omitted). Lewis contends that the circumstantial evidence is
consistent only with the hypothesis that he inadvertently discharged a handgun, without
intending to cause S.F. fear of immediate bodily harm or death . Lewis points out that no
witness saw him possess a gun, let alon e point a gun at S.F. He also points out that,
immediately after the shooting, he came to S.F.’s aid and apologized to her and said that
he never meant for it to happen.
In light of the circumstances proved, it is simply implausible that Lewis did not fire
a handgun at S.F. with the intent to cause fear. Lewis and S.F. had exchanged angry words
only a few moments before the shot was fired. During the exchange, Lewis referred to S.F.
by a derogatory word. Lewis had threatened her by saying, “ You don’t know what I’m
capable of.” The shot was fired from the area where only Lewis was standing. The shot
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was fired in an upward direction, and the bullet passed by S.F.’s head so closely that she
could hear it. In short, the overwhelming circumstantial evidence shows that Lewis pointed
and fired a handgun at S.F. The inference that Lewis inadvertently fired a handgun in
S.F.’s direction is not a reasonabl e inference, which means that there are no rational
hypotheses of innocence. See Harris, 895 N.W.2d at 598; Moore, 846 N.W.2d at 88.
Thus, the circumstantial evidence is sufficient to support Lewis’s conviction of
second-degree assault.
II. Alibi Instruction

Lewis also argues that the district court erred by denying his request to give the jury
an instruction concerning his alibi theory.
A district court must instruct the jury in a way that “fairly and adequately explain[s]
the law of the case” and does not “materially misstate[] the applicable law.” State v. Koppi,
798 N.W.2d 358, 362 (Minn. 2011). An appellate court reviews jury instru ctions “as a
whole to determine whether [they] accurately state the law in a manner that can be
understood by the jury.” State v. Kelley, 855 N.W.2d 269, 274 (Minn. 2014). A district
court has “considerable latitude in selecting language for jury instruc tions.” State v.
Gatson, 801 N.W.2d 134, 147 (Minn. 2011) (quotation omitted). Accordingly, we apply
an abuse-of-discretion standard of review to a district court’s jury instructions. Koppi, 798
N.W.2d at 361.
An alibi instruction is not prohibited. State v. Landa, 642 N.W.2d 720, 727 (Minn.
2002). But i f a defendant objects to an alibi instruction, such an instruction is not
recommended. Id. If an alibi instruction is given, it “should be ‘carefully phrased to make
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clear to the jury that defendant had only to create a reasonable doubt through the alibi
defense.’” Id. (quoting State v. Kluck, 299 Minn. 161, 170, 217 N.W.2d 202, 208 (1974)).
In general, “[a] party is entitled to an instruction on his theory of the case if there is
evidence to support it.” State v. Persitz, 518 N.W.2d 843, 848 (Minn. 1994). If a defendant
requests an alibi instruction, the district court may decline to give the instruction even if
there is evidence to support the alibi. Landa, 642 N.W.2d at 728. The district court may
decline to give an alibi instruction on the ground that such an instruction would require
another instruction concerning the potential bias of the defendant’s friends or family
members, which may be prejudicial to the defendant. Id. at 727. The district court also
may decline to give an alibi instruction “if the substance of the particular instruction is
already contained in the court’s instruction to the jury.” Id. at 728. In addition, the district
court may decline to give an alibi instruction if the defendant’s attorney is able to present
the alibi theory in closing arguments. See id.
In this case, Lewis requested that the district court instruct the jury concerning his
evidence of an alibi as follows:
Defendant has presented a theory of defense of alibi.
This defense does not shift the burden of proof to the
defendant. The State must still prove beyond a reasonable
doubt each element of the crime the defendant has been
charged with. The defendant is not required to prove his alibi
defense beyond a reasonable doubt. The defendant may still
succeed by raising a reasonable doubt of his presence at the
scene of the crime.

Lewis’s attorney explained that the requested instruction would help ensure that the jury
would not shift the burden of proof to Lewis and find him “automatically guilty” if he
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failed to prove his alibi. The district court denied the request for two reasons. First, the
district court was persuaded by the Minnesota District Judges’ Association pattern-jury-
instruction guide, which recommends against giving an alibi instruction . A comment in
the pattern-jury-instruction guide states:
An alibi is not a defense. It is proof that a necessary
element of the State’s case does not exist. The burden of proof
is on the State. In keeping with the general position that the
instructions should not comment on the effect of particular
evidence, the Committee recommends no instruction on alibi.

10 Minnesota Dist. Judg es’ Ass’n, Minnesota Practice – Jury Instruction Guides,
Criminal, § 7.08 cmt. (6th ed. 201 5). Second, the district court stated that the requested
instruction “would be more confusing to the jury than helpful.” The district court also
stated its intenti on “to tell [the jury] repeatedly that the state has the burden of proving
every element” and that “proving that he was there is the most basic element of all.”
With respect to the state’s burden of proof, t he district court instructed the jury as
follows:
The defendant is presumed innocent. This presumption
remains with the defendant unless and until he has been proven
guilty beyond a reasonable doubt. . . . The burden of proving
guilt is upon the state. The defendant does not have to prove
innocence.

The state must convince you by evidence beyond a
reasonable doubt that the defendant is guilty of the crime
charged. The defendant has no obligation to prove innocence.

The district court also instructed the jury that it should find Lewis not guilty if it finds that
any element of a crime had not been proved beyond a reasonable doubt.
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Lewis contends that the district court erred by following the recommendation of the
pattern-jury-instruction guide because the guide is not authoritative. Regardless whether
the guide is authoritative, the comment to which the district court referred is not contrary
to Minnesota law. See Landa, 642 N.W.2d at 727 -28. In addition, the district court’s
reasons for denying Lewis’s request are very similar to the district court’s reasons in Landa.
Because Lewis’s alibi theory is based on the testimony of his niece and his son, a cautionary
instruction might have been necessary and might have been more prejudicial to Lewis than
helpful. See i d. at 727. Furthermore, the district court clearly instructed the jury
concerning the state’s burden of proof. Moreover, Lewis’s trial attorney was able to pursue
the alibi theory in his closing argument.
Thus, the district court did not err by de nying Lewis’s request for an alibi
instruction.
Affirmed.