State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-0534

State of Minnesota,
Respondent,

vs.

Earley Romero Blevins,
Appellant.

Filed February 11, 2019
Affirmed
Smith, Tracy M., Judge

Chisago County District Court
File No. 13-CR-17-306

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

Janet Reiter, Chisago County Attorney, Erin C. Stephens, Assist ant County Attorney,
Center City, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appella t e Publ i c De f e nde r , J e s s i ca Merz Godes, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Smith, Tracy M., Presiding Judge; Ro ss, Judge; and
Johnson, Judge.
U N P U B L I S H E D O P I N I O N
SMITH, TRACY M., Judge
A jury found appellant Earley Ro mero Blevins guilty of fourth- degree assault for
spitting on a corrections officer, and he was convicted of and sentenced for the crime. On

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appeal, Blevins argues that the evidence was insufficient to pr ove beyond a reasonable
doubt that he intended to spit on the corrections officer. We affirm.
FACTS
Blevins was imprisoned at a Minne sota Department of Corrections facility. When
Blevins was leaving his job in the kitchen, corrections officers ordered him to submit to a
routine pat search. Blevins agre ed to the search, but officers later testified that he was
“agitated,” “loud,” and argumentative. In response, officers be gan moving Blevins to a
nearby holding cell and, as part of that process, directed him to comply with a strip search.
Blevins said that he would comply. As the search began, he told officers that he could “pull
a w a y ” f r o m t h e m i f h e w a n t e d t o a n d s a i d , “ [ J ] u s t t a k e m e t o s eg[regation].”1 Blevins
testified that he made these comments in response to a threat t hat he would be taken to
segregation and that he made them because he knew that he had n ot stolen anything and
could not be kept there for long. Officers took Blevins to segr egation and performed a
“staff-assisted uncloth ed body search,” that is, a forced strip search. At that point, the
officers began recording the interaction on a handheld video camera.
Blevins was handcuffed and placed face-down on a mattress, and his clothes were
cut off. Blevins told the officer s there was blood and feces on t h e m a t t r e s s , b u t t h e y
continued the strip search. Blevins threatened to spit on the officers. They put him in a spit
hood—a mesh head covering, like a mosquito net, intended to catch any saliva if Blevins
did spit.

1 “Segregation” refers to an area of the prison where prisoners are confined to a cell by
themselves; prisoners may be placed there as punishment.

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Once the strip search was compl ete, officers began to leave the room. They needed
to move Blevins close to the door to enable them to remove his handcuffs while the door
was shut and they were out of th e cell. Blevins resisted being moved, variously kicking,
stiffening his body, and going limp.
The corrections officers decided to move Blevins to a restraint chair. When Blevins
continued resisting, they applie d “touch pressure”—a technique intended to force
compliance by inflicting pain—to various points on his body, in cluding between his ear
and the end of his jawbone, as well as directly under his jawbone. At the same time, other
corrections officers were attempti ng to strap his legs into the chair. Three corrections
officers testified that, while this was going on, Blevins spat o n t h e m . T h e f i r s t o f f i c e r
testified that, after he spat, Blevins said, “I’m going to get you.” The second corrections
officer, Smith, testified that he felt spit on the right side of his face and his right eye (despite
the spit hood) and that Blevins was looking at him and laughing at him at the moment he
spat. The final officer testified simply about applying pressure and being spat on.
Blevins was charged with three counts of fourth-degree assault against a
correctional employee—one count for each employee. See Minn. Stat. § 609.2231, subd. 3
(2016). A jury found Blevins not guilty of the first and third counts of fourth-degree assault
but guilty of the second count, wh ich related to Smith. Blevins was convicted and
sentenced. He now appeals.

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D E C I S I O N
I. The evidence is sufficient to s upport Blevins’s conviction.
A valid conviction of fourth-deg ree assault for spitting on a correctional employee
requires the state to prove, beyond a reasonable doubt, that the defendant intentionally spat
at or onto a correctional employee. Minn. Stat. § 609.2231, subd. 3. Blevins argues that the
evidence of his intent is insufficient to support his conviction.
Because intent is a state of mind, it is rarely proved by direct evidence. See State v.
McAllister, 862 N.W.2d 49, 53 (Minn. 2015). That general rule holds here. The state did
not introduce direct evidence of Blevins’s state of mind;2 it instead relied on circumstantial
evidence to prove that he intended to spit on Smith.
In Minnesota, the sufficiency o f circumstantial evidence is sub ject to a stricter
standard of review than is the sufficiency of direct evidence. State v. Harris, 895 N.W.2d
592, 598 (Minn. 2017). This heightened standard applies to the review of any element of a
crime that is proved by circumsta ntial evidence, including mens rea. State v. Al-Naseer ,
788 N.W.2d 469, 474 (Minn. 2010). When applying the heightened standard, an appellate
court employs a two-step process. Loving v. State , 891 N.W.2d 638, 643 (Minn. 2017).

2 The state did introduce evidenced that Blevins threatened to spit on the officers. Evidence
of threats can be evidence of a defendant’s state of mind. State v. Kirch, 322 N.W.2d 770,
773 (Minn. 1982). Threats may even be direct evidence of state of mind. See State v. Horst,
880 N.W.2d 24, 40 (Minn. 2016) (implicitly overruling Kirch’s statement that mental states
cannot be proved by direct evidence). But here, Blevins’s threat was to spit if officers did
not let him go. Even though they did not release him, Blevins d id not spit for several
minutes, during which he was str enuously resisting the officers . Though the threat was
quite close in time, the intervening events suggest that it may not have captured his state
of mind at the moment he actually spat.

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First, the court determines what circumstances the state proved . Id. In doing so, the court
“resolv[es] all questions of fact in favor of the jury’s verdict” and disregards any evidence
inconsistent with the verdict. Harris, 895 N.W.2d at 600. Second, the court determines
“whether the circumstances proved are consistent with guilt and inconsistent with any
rational hypothesis other than guilt.” State v. Bahtuoh, 840 N.W.2d 804, 810 (Minn. 2013).
The evidence is insufficient to support the verdict if an inference that is inconsistent with
guilt can reasonably be drawn from the circumstantial evidence supporting the verdict. See
Harris, 895 N.W.2d at 601.
Blevins concedes that the circumstances are consistent with guilt but argues that two
inferences inconsistent with guilt can reasonably be drawn from the circumstances proved.
We begin the analysis with the circumstances proved.
A. Circumstances Proved
Assuming that the jury credited the testimony of the state’s witnesses and construing
the evidence in the light most favorable to the verdict, see State v. Hawes , 801 N.W.2d
659, 668 (Minn. 2011), we identify the following circumstances proved. Blevins was taken
to segregation and subjected to a strip search by force because he was resistant to both a
pat down and a voluntary strip search. During the course of the forced strip search, Blevins
said that he would start spitting if not released. He was not released; a spit hood was placed
over his head. After the strip search, corrections employees attempted to place Blevins into
a restraint chair. Blevins conti nued resisting, and corrections officers applied force to
various areas around his jawline in an attempt to force him to comply. Blevins responded
by repeatedly shouting “stop ch oking me.” While applying pressu re, Smith was near

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Blevins’s face. Blevins looked hi m in the eyes, spat, and laugh ed. Smith was hit with a
mist of saliva.
Blevins asserts that there were additional circumstances proved . He asserts that he
was being choked and could not breathe. He also asserts that he was shouting “stop choking
me” at the same time that he spat . However, because the standar d of review for
circumstantial evidence requires this court to assume that the jury discredited testimony
inconsistent with the verdict, Blevins’s own statements and tes timony are not
“circumstances proved.” See Harris, 895 N.W.2d at 600. Thus, no inferences regarding
Blevins’s intent can be drawn from those alleged facts. State v. Stein, 776 N.W.2d 709, 715
(Minn. 2010) (“Where the jury has rejected conflicting facts and circumstances, we do not
draw competing inferences from those facts on appeal.”).
B. Inferences from the Circumstances Proved
Blevins does not dispute that the circumstances proved are cons istent with the
inference that he intended to spit on Smith. He argues, however , that the circumstances
also allow for the inference that Blevins did not intend to spi t on Smith. He argues that it
is reasonable to infer either (a) that any expulsion of saliva was an unintentional side-effect
of his shouting, or (b) that his purpose in spitting was to cle ar his airways, and not to spit
on Smith.
1. Unintentional Side-Effect of Shouting
Blevins first argues his lack of intent can reasonably be inferred from “[t]he natural
tendency to collect saliva in one’s mouth under these circumstances and to unintentionally
expel it while screaming and pleading for air.” Such an inferen ce would be inconsistent

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with intent and thus inconsistent with guilt. Because there was no direct evidence of how
full of saliva Blevins’s mouth wa s, his argument requires a cha in of inferences. First, it
must be reasonable to infer that he accumulated excess saliva; second, it must be reasonable
to infer that he unintentionally expelled that saliva while sho uting. The evidence in the
record does not support either inference.
Blevins points to Al-Naseer to argue that his accumulation of saliva can be inferred
from the circumstances. See 788 N.W.2d at 480. But Al-Naseer does not support his
argument. In Al-Naseer, the circumstances proved were that a driver hit a car tire an d a
person on the shoulder of the road, causing significant damage to the driver’s own vehicle,
but did not react except by slowly drifting back onto the roadway while driving away. Id.
at 477-78. The supreme court held that it could be inferred that the driver’s lack of reaction
was caused by the driver being asleep or unconscious. Id. at 478-79. Because it is common
knowledge that an unconscious person does not react to external stimuli, it was a reasonable
inference that a driver who hits something and does not react may have been unconscious.
See id. In contrast, the circumstances proved here are that Blevins wa s shouting and
pressure was being placed around his jawbone. The connection between those facts and the
accumulation of saliva is not readily apparent. And there is no record evidence of how the
officers’ use of force could affect a person’s saliva accumulation. Under the circumstances
proved, it would be “mere conject ure or speculation” to conclud e that Blevins’s mouth
filled with saliva. See id. at 480 (quotation omitted).
Even if it were reasonable to infer that saliva accumulated in Blevins’s mouth, the
video recording of the incident that was shown to the jury is i nconsistent with Blevins’s

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theory of unintentional expulsion. The video shows Blevins shou ting “stop choking me”
repeatedly, but then stopping. Fifteen seconds after he stops shouting, there is a sound like
a soft burst of air and three of the officers react. Smith is then seen talking to the supervising
officer and leaving the room. Though quiet, Smith’s words are a udible: “He spit on me.”
Interpreting the video in the light most favorable to the verdi ct, the burst of air is the
moment Blevins spat, and the spitting occurred well after Blevi ns had stopped shouting.
Under those circumstances, it is unreasonable to infer that the spitting was an unintentional
side effect of Blevins’s shouting.
2. Innocent Purpose
Blevins’s second argument is that Minn. Stat. § 609.2231, subd. 3, requires the state
to prove not only that he intended to spit at or onto Smith, but that he spat with the purpose
of doing so. He argues that it is reasonable to infer his purpo se in spitting was to breathe
more easily and not to spit at or onto Smith. Blevins relies on State v. Cogger, 802 N.W.2d
407, 411 (Minn. App. 2011), review granted (Minn. Oct. 18, 2011) and order granting
review vacated (Minn. Mar. 28, 2012). Cogger dealt with the prohibition against assault of
a police officer, not a correctional officer, but both statutory sections use the same phrase—
“intentionally throws or otherwise transfers bodily fluids or f eces at or onto” the victim.
Minn. Stat. § 609.2231, subd. 1(c) (2010), subd. 3. The Cogger court held that a person
violates this prohibition if the person acts “with the purpose to spit on a police officer.”
802 N.W.2d at 412. Blevins relie s on the court’s use of “purpos e ” t o a s s e r t t h a t a
defendant’s goal must be to cause spit to land on a correctional officer. The state does not
contest this interpretation. The parties thus seem to agree that, for a person to be convicted,

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the person’s purpose in spitting must be to spit at or onto a correctional officer. See Minn.
Stat. § 609.2231, subd. 3.
Nevertheless, Blevins’s argument f a i l s f o r t w o r e a s o n s . F i r s t , Blevins reads too
much into Cogger’s use of the word “purpose.” The Cogger court held that Minn. Stat.
§ 609.2231, subd. 1, created a general-intent crime, and not a specific-intent crime, such
that voluntary intoxication was not a defense. 802 N.W.2d at 41 1. The statement that the
statute required “the purpose to spit on a police officer” was made in contrast to an
interpretation that would have al so required the purpose to cau se some result. Id. at 412.
Indeed, the court stated that “the only intent necessary under the statute is to intentionally
engage in the prohibited conduct.” Id. at 411. “Intentionally,” for the purposes of Minn.
Stat. § 609.2231, subd. 3, includes acting with the belief that the action will cause the
prohibited result. Minn. Stat. § 6 09.02, subd. 9(3) (2016). Und er that definition of
“intentionally,” Blevins is guilty of fourth-degree assault of a corrections officer if he
believed that the act of spitting would direct the saliva at or onto the officer, even if his
purpose was to clear saliva from his mouth.
Given that definition, the circums tances proved are inconsisten t with any rational
hypothesis other than guilt. While Smith was near Blevins’s face, Blevins looked Smith in
the eyes and spat. It is unreason able to infer that Blevins did not believe he would spit at
or onto Smith by spitting in Smith’s direction at that moment.
Second, even if the state had been required to prove that Blevi ns’s purpose was to
spit at or on Smith, it did so. Evidence that Blevins was being choked was discredited under
the first step of review, because it was not inconsistent with guilt. Because the

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circumstances proved do not include that Blevins struggled to b reathe, it is unreasonable
to infer that Blevins’s purpose in spitting was to breathe more easily. Further, the state
introduced evidence, which we assume the jury credited, that Blevins had (1) threatened to
spit on corrections officers, (2) locked eyes with Smith, (3) spat, and (4) laughed when the
spit landed on Smith. Given this evidence that Blevins’s goal was to spit on Smith, and the
absence of evidence supporting Blevins’s asserted innocent purpose, it is unreasonable to
infer that Blevins had any purpose other than spitting at or onto Smith.
II. Blevins’s Pro Se Supplemental Brief
Blevins’s pro se supplemental brief asserts the same claim as was raised in the brief
submitted by counsel but with more detailed allegations regardi ng the force used against
him. Blevins also argues that the officers used excessive force a g a i n s t h i m a s
unconstitutional corporal punishment for his verbal conduct. Ho wever, Blevins does not
explain why that alleged improper use of force justifies or excuses his conduct of spitting
on Smith, and his brief does not cite to relevant law. To the e xtent Blevins raises any
additional claims, they fail beca use they are unsupported by ar gument or legal authority.
See State v. Bartylla , 755 N.W.2d 8, 22-23 (Minn. 2008) (holding pro se claims waive d
because they lacked “supportive arguments and/or legal authority”).
Affirmed