A17-1713

This opinion will be unpublished and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
A17-1712
A17-1713

State of Minnesota,
Respondent,

vs.

Beverly Nicole Burrell,
Appellant

Filed September 17, 2018
Affirmed
Reyes, Judge

Hennepin County District Court
File No. 27-CR-16-18602

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

Michael O. Freeman, Hennepin County Attorney, Kelly O’Neill Moller, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Craig E. Cascarano, Arthur James Waldon, Minneapolis, Minnesota (for appellant)

Considered and decided by Ross, Presiding Judge; Reyes, Judge; and Florey, Judge.
U N P U B L I S H E D O P I N I O N
REYES, Judge
Appellant argues that the distr ict court erred by applying the proximate-cause
standard in convicting her of thi rd-degree murder. She also ar gues that insufficient

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circumstantial evidence supported a second, separate conviction of third-degree murder of
a separate victim. We affirm.
FACTS
In September 2015, M.T. and his friend S.D. picked up M.T.’s fi ancé, H.S., at the
airport. On their way back to a hotel, they stopped at a resta urant parking lot to meet
appellant Beverly Nicole Burrell and bought four bags of heroin from her. At the hotel,
M.T. injected heroin into himse lf, vomited, and eventually pass ed out. H.S. called 911,
police officers arrived, but all life-saving measures were unsuccessful, and M.T. died.
A medical examiner testified that M.T. died from mixed heroin a nd
methamphetamine toxicity. The med ical examiner testified that both methamphetamine
and heroin played a role in causing M.T.’s death.
In January 2016, 20-year-old L.R ., a recovering heroin addict, came back from a
trip to Australia, and his parents picked him up at the airport . After arriving home, L.R.
went out to meet his friend, W.C., another heroin addict. They met appellant together and
bought four bags of heroin from her. L.R. eventually came back home. He went upstairs
for a short time, started to behave strangely, became sick, and vomited. L.R. stayed at
home for the rest of the evening and went to bed around 10:30 p.m.
The next morning, when L.R.’s mot her left the house around 9:30 a.m., she heard
L.R. snoring in his room. L.R.’s father stayed at home that mo rning and did not hear
anybody leaving or entering the house after L.R.’s mother left. After L.R.’s mother
returned, L.R’s father entered L.R.’s room and found him lying unconscious on his bed.
Efforts to resuscitate him failed, and L.R. died.

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For each death, respondent State of Minnesota separately charge d appellant with
third-degree murder by selling, g iving, or distributing a contr olled substance pursuant to
Minn. Stat. § 609.195(b) (2014). Appellant stipulated to joinder of these two charges and
waived a jury trial. The district court held a bench trial, fo und appellant guilty of third-
degree murder in both cases, and sentenced appellant to two con secutive sentences of 86
months. This appeal follows.
D E C I S I O N
I. T h e d i s t r i c t c o u r t d i d n o t e r r b y a p p l y i n g t h e p r o x i m a t e - c a u s e standard in
convicting appellant of third-degree murder of M.T.

Appellant first argues that the district court should have used the but-for cause
standard instead of the proxima te-cause standard in convicting appellant of third-degree
murder for M.T.’s death. Appellant’s argument is misguided.
Appellant’s argument requires in terpretation of Minn. Stat. § 6 09.195(b). We
review the question of statuto ry interpretation de novo. State v. Riggs, 865 N.W.2d 679,
682 (Minn. 2015). We interpret a statute to “effectuate the intent of the legislature.” State
v. Jones, 848 N.W.2d 528, 535 (Minn. 2014); see Minn. Stat. § 645.16 (2014). “If the
Legislature’s intent is discernible from the statute’s plain an d unambiguous language, the
letter of the law shall not be disregarded under the pretext of pursuing its spirit.” Riggs,
865 N.W.2d at 682. A statute is ambiguous when its language is subject to more than one
reasonable interpretation. State v. Mauer, 741 N.W.2d 107, 111 (Minn. 2007).
Minn. Stat. § 609.195(b) provide s that “[w]hoever, without inte nt to cause death,
proximately causes the death of a human being by, directly or indirectly, unlawfully selling,

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giving away, bartering, delivering, exchanging, distributing, or administering a controlled
substance . . . is guilty of murd er in the third degree . . . . ” (Emphasis added.) The
proximate-cause language in section 609.195(b) is not ambiguous, and we have repeatedly
applied the proximate-cause s tandard under that statute. See, e.g., State v. Schnagl , 907
N.W.2d 188, 196 (Minn. App. 2017), review denied (Minn. Feb. 28, 2018) (applying
proximate-cause standard to determine whether person was guilty of third-degree murder
under Minn. Stat. § 609.195(b)).
Appellant does not argue that the proximate-cause language is a mbiguous. She
instead argues that Burrage v. United States, 571 U.S. 204, 212, 134 S. Ct. 881, 888 (2014),
where the United States Supreme Court held that a drug supplier is not liable when the drug
is not the but-for cause of the victim’s death, is applicable h ere. But Burrage concerns a
different statute, 21 U.S.C. § 841(b)(1)(C), which expressly ap plies the but-for cause
language.1
Here, Minn. Stat. § 609.195(b) pl ainly and unambiguously provid es that the state
must establish beyond a reasonable doubt that appellant “proximately cause[d]” the death
of M.T. by selling heroin. Because the legislative intent is c lear from the plain language
of the statute, we end our analysis.

1 That statute provides that a person who distributed or sold drugs “shall be sentenced . . .
if death or serious bodily injury results from the use of such substance . . . to a term of
imprisonment of not less than twenty years of more than life . . . .” 21 U.S.C.
§ 841(b)(1)(C) (emphasis added). The Supreme Court held that “phrases like ‘results from’
. . . require but-for causality.” Burrage, 571 U.S. at 212, 134 S. Ct. at 888.

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II. The circumstantial evidence is su fficient to support appellant’ s conviction of
third-degree murder of L.R.

Appellant next argues that insufficient circumstantial evidence supported the district
court’s determination that appe llant was guilty of third-degree m u r d e r o f L . R . W e
disagree.
When considering a claim of insu fficient evidence, we review th e record to
determine whether the evidence, when viewed in the light most favorable to the conviction,
is sufficient to allow the factfinder to reach a guilty verdict. State v. Ortega, 813 N.W.2d
86, 100 (Minn. 2012); see also State v. Hofer, 614 N.W.2d 734, 737 (Minn. App. 2000),
review denied (Minn. Aug. 15, 2000) (“The standard of review for a claim of i nsufficient
evidence is the same for non-jury and jury trials.”). However, we apply a heightened
scrutiny if the state’s case is based entirely on circumstantial evidence. State v. Al-Naseer,
788 N.W.2d 469, 473 (Minn. 2010). Under this heightened scruti ny, “[c]ircumstantial
evidence must form a complete cha in that, in view of the eviden ce as a whole, leads so
directly to the guilt of the def endant as to exclude beyond a r easonable doubt any
reasonable inference other than guilt.” State v. Taylor, 650 N.W.2d 190, 206 (Minn. 2002).
W e a p p l y a t w o - s t e p t e s t u n d e r the circumstantial-evidence stan dard. State v.
Andersen, 784 N.W.2d 320, 329 (Minn. 2010 ) . T h e f i r s t s t e p i s t o i d e n tify the
circumstances proved. Id. In doing so, we defer to the factfinder’s “acceptance of the
proof of these circumstances and rejection of evidence in the r ecord that conflicted with
the circumstances proved by the State.” Id. (quotation omitted). The second step is to
determine whether the circumstances proved are consistent with guilt and inconsistent with

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any reasonable inference other than guilt. State v. Silvernail, 831 N.W.2d 594, 599 (Minn.
2013). The question is not simply whether the inferences that point to guilt are reasonable.
Id. We do not give deference to the jury’s choices between reason able inferences but
independently examine the reasonableness of all inferences that might be drawn from the
circumstances proved as a whole. Id.
The circumstances proved here include the following: (1) after arriving back home
from Australia, L.R. met with W.C., a friend of L.R.’s and a he roin addict, and together
they met appellant and purchased four bags of heroin from her; (2) L.R. gave only a small
portion to W.C.; (3) L.R. went upstairs for a short time when h e came back home, he
behaved strangely and vomited afterwards; (4) He went to bed around 10:30 p.m., and his
mother heard him sleeping in his room at around 9:30 a.m. the f ollowing day; (5) L.R.’s
father did not observe anyone enter or leave the house the morning of L.R.’s death, except
for L.R.’s mother who left at 9: 30 a.m. and returned at 11:30 a .m.; (6) L.R. was within
earshot of his parents until he died; (7) W.C. did not pick up L.R. after their first trip to see
appellant, and L.R. did not have a car; (8) L.R.’s parents alwa ys kept track of their car
keys; (9) L.R.’s phone records revealed that L.R. did not conta ct anyone other than
appellant to buy heroin for months before his death; and (10) a ppellant was L.R.’s sole
heroin supplier for months before his death.
Considering the circumsta ntial evidence as a whole, Andersen, 784 N.W.2d at 332,
a reasonable inference can be draw n that L.R. died from the her oin he purchased from
appellant. Appellant does not dispute that this inference is reasonable and consistent with
the circumstances proved.

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Appellant argues, however, that another reasonable inference inconsistent with guilt
can be drawn from the circumstance s proved: that L.R. could hav e left the house to get
more heroin from another dealer b etween the time he went to bed and the time he died.
However, appellant does not provide any theory that would expla in how L.R. could have
gone to another dealer, why he w ould have gone to another deale r, and who that dealer
could be. Appellant’s inference is a mere conjecture, which is insufficient to overturn a
conviction based on circumstantial evidence. Al-Naseer, 788 N.W.2d at 480. Therefore,
sufficient circumstantial evidence supports appellant’s conviction.
Affirmed.