Steven James Hayes, petitioner, Appellant,

This opinion will be unpublished and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
A18-0592

Steven James Hayes, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed January 22, 2019
Affirmed in part, reversed in part, and remanded
Smith, Tracy M., Judge

St. Louis County District Court
File No. 69DU-CR-11-3112

Cathryn Middlebrook, Chief Appellate Public Defender, St. Paul, M i n n e s o t a ( f o r
appellant)

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

Mark S. Rubin, St. Louis County Attorney, Jessica G. Foschi, Assistant County Attorney,
Virginia, Minnesota (for respondent)

Considered and decided by Ross, Presiding Judge; Johnson, Judg e ; a n d S m i t h ,
Tracy M., Judge.
U N P U B L I S H E D O P I N I O N
SMITH, TRACY M., Judge
Appellant Steven James Hayes was convicted of second-degree as sault with a
dangerous weapon and terroristic threats in connection with an incident involving a BB

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gun. The district court had instructed the jury that a BB gun is a firearm and that a firearm
is a dangerous weapon. Following Hayes’s convictions, the supreme court decided, in State
v. Haywood , 886 N.W.2d 485, 486 (Minn. 2016), that a BB gun is not a fire arm for
purposes of Minn. Stat. § 609.1 65 (2014). Hayes petitioned for postconviction relief,
seeking, among other things, a new trial on the second-degree-assault and terroristic-threats
charges on the ground that the jury instruction regarding a dan gerous weapon was
erroneous. The postconviction court denied a new trial, and Hayes appealed.
Because the error in the jury instructions deprived Hayes of t he right to have the
jury determine every element of second-degree assault with a da ngerous weapon, we
reverse that conviction and remand for a new trial. As to the terroristic-threats convictions,
because the error did not direct the verdict on an element of t h e c r i m e a n d w a s n o t
prejudicial, we affirm those convictions.
FACTS
In September 2011, Hayes was charged with multiple offenses, i ncluding second-
degree assault and terroristic threats, based on a domestic-abu se incident involving his
estranged wife and others present during the incident. According to the complaint, Hayes
called his estranged wife and threatened to beat her; arrived at her apartment and assaulted
her, including by striking her with a BB gun; and showed his BB gun to, and threatened to
kill, other persons who were at the apartment. The case was tried to a jury.
In instructing the jury on the s e c o n d e l e m e n t of second-degree assault with a
dangerous weapon, the district court stated that “Minnesota law defines a BB or pellet gun
as a firearm” and that “[a] firearm . . . is a dangerous weapon.” The court’s instruction on

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second-degree assault was then incorporated into the terroristi c-threats instruction. The
court instructed that the first element of terroristic threats is that “the defendant threatened,
directly or indirectly, to commit a crime of violence.” The cou rt went on to explain that
“Second Degree Assault is a crime of violence.” On December 15, 2011, the jury found
Hayes guilty of all charges. Relevant here, the district court convicted Hayes of one count
of second-degree assault with a dangerous weapon and one count of terroristic threats
against his estranged wife, and two counts of terroristic threa ts against two other persons
present during the attack.
In October 2016, when Hayes was serving his sentence in prison , the Minnesota
Supreme Court held that, “[u]nder Minn. Stat. § 609.165 (2014), the plain meaning of the
word ‘firearm’ does not incl ude an air-powered BB gun.” Haywood, 886 N.W.2d at 486
(syllabus). Hayes pursued postconviction relief. The postconviction court granted relief on
a number of Hayes’s claims
1 but denied his claim that, because the jury instructions that a
BB gun is a firearm were erroneous, he was entitled to a new tr ial on the second-degree-
assault and terroristic-threats convictions.
This appeal follows.
D E C I S I O N
We “review the denial of a petition for postconviction relief for an abuse of
discretion.” Matakis v. State , 862 N.W.2d 33, 36 (Minn. 2015). We “will not reverse an

1 For example, the postconviction court vacated Hayes’s convicti on for being a felon in
possession of a firearm based on Haywood.

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order unless the postconviction court exercised its discretion in an arbitrary or capricious
manner, based its ruling on an erroneous view of the law, or made clearly erroneous factual
findings.” Id. (quotation omitted).
Defense counsel, the state, and the postconviction court all a nalyzed this case under
the framework of plain error. Plain error is the standard appli ed to an unobjected-to error.
See Minn. R. Crim. P. 31.02 (“Plain error affecting substantial rights can be considered by
the court on motion for new trial, post-trial motion, or on appeal even if it was not brought
to the trial court’s attention.”). The plain-error standard req uires the defendant to show:
(1) error; (2) that was plain; and (3) that affected substantia l rights. State v. Griller , 583
N.W.2d 736, 740 (Minn. 1998). If these three prongs are met, th e appellate court then
assesses (4) whether it should address the error to ensure the fairness and integrity of the
judicial proceedings. State v. Matthews, 779 N.W.2d 543, 549 (Minn. 2010).
“An error is plain if it . . . vio lates or contradicts case la w, a rule, or an applicable
standard of conduct.” Id. The postconviction court determined, and the parties agree, th at
the jury instruction was plainly erroneous in light of Haywood.2 The points of contention
are the third and fourth prongs. The third prong—whether substa ntial rights were

2 “It is a well-established rule that any claims not argued by the parties are deemed waived
unless prejudicial errors are obvious from the record.” Barnes v. State, 768 N.W.2d 359,
363 n.2 (Minn. 2009); see also State v. Porte, 832 N.W.2d 303, 312-14 (Minn. App. 2013)
(declining to decide whether a trial error was harmless because the state failed to raise the
issue). Because the state does no t “take issue with the first t wo prongs of the plain error
test,” we decline to review sua sponte the postconviction court ’s decision that Haywood
renders the BB-gun instruction pl ainly erroneous. It is not obv ious whether Haywood
applies retroactively to Hayes’s final convictions for second-degree assault and terroristic
threats; we express no opinion on the issue.

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affected—requires the court to consider if the error was prejud icial. Id. “An error in
instructing the jury is prejudici al if there is a reasonable li kelihood that giving the
instruction in question had a significant effect on the jury’s verdict.” State v. Huber, 877
N.W.2d 519, 525 (Minn. 2016) (quotation omitted).
We begin with the second- degree-assault conviction.
I. The postconviction court abus ed its discretion in denying Hayes a new trial on
his second-degree-assault conviction.

Hayes asserts that the erroneous jury instruction that a BB gu n is a firearm, and thus
a dangerous weapon, for purposes of the second-degree-assault c harge is reversible plain
error.
The state argues that, while e rroneous, the instruction was not prejudicial under the
third prong of the plain-error st andard. Under the criminal cod e, “dangerous weapon”
includes not only a firearm but a lso “any device designed as a weapon and capable of
producing death or great bodily harm” and any “other device or instrumentality that, in the
manner it is used or intended to be used, is calculated or like ly to produce death or great
bodily harm.” Minn. Stat. § 609.02, subd. 6 (2010). The state asserts that the BB gun was
indisputably a dangerous weapon because (1) BB guns are “inherently capable of causing
great bodily harm when used as a weapon” and (2) there was evidence that Hayes had used
the BB gun in a manner likely to cause great bodily harm by str iking his estranged wife
with it. Thus, the state reasons, had the jury been properly in structed about the meanings
of “dangerous weapon,” it still, in all likelihood, would have found Hayes guilty.

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Hayes’s argument has a different slant. He relies on State v. Moore , 699 N.W.2d
733 (Minn. 2005). In Moore, the defendant was found guilty of first-degree assault, an
element of which was infliction of “great bodily harm.” Id. at 735. “Great bodily harm”
was statutorily defined as “a permanent or protracted loss or impairment of the function of
any bodily member or organ.” Id. at 736-37. The issue on appeal was whether the district
court made a reversible error when it instructed the jury that “the loss of a tooth is a
permanent loss of the function of a bodily member.” Id. at 736. The supreme court
concluded that the jury instruction was erroneous. Id. at 737. And, more importantly, the
court rejected the state’s argument that the error was harmless, holding that “harmless error
analysis is not applicable.” Id. at 737-38. The court did not consider whether the jury, based
on the evidence in the record, would have found the loss of a tooth to be great bodily harm
in the absence of the erroneous instruction. Id. That was because, by giving that instruction,
the district court effectively directed a verdict on the elemen t of great bodily harm,
depriving “the defendant of the right to have the jury determin e . . . every element of the
charged offense.” Id.
We conclude that Moore controls. Hayes was convicted of second-degree assault,
and use of a “dangerous weapon” was an element of that crime. M inn. Stat. § 609.222
(2010). In instructing on that element, the district court stat ed, “Second, the defendant, in
assaulting [the victim], used a dangerous weapon. A firearm, wh ether loaded or unloaded
or even temporarily inoperable, i s a dangerous weapon. Minnesot a law defines a BB or
pellet gun as a firearm.” Just as the jurors in Moore could not help but find that the loss of
a tooth was a permanent loss of the function of a bodily member and, thus, great bodily

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harm, here, the jury could not help but find that a BB gun was a firearm and, thus, a
dangerous weapon. Under Moore, the district court deprived Hayes “of the right to have
the jury determine . . . every element of the charged offense.” 699 N.W.2d at 738.
We disagree with the state that the two alternative definition s of dangerous weapon
change the analysis. Under either definition, a jury question w as presented—namely,
whether the BB gun was designed as a weapon and capable of prod ucing death or great
bodily harm or whether, in the manner in which it was used, the BB gun was calculated or
likely to produce death or great bodily harm. See Minn. Stat. § 609.02, subd. 6. The
erroneous instruction deprived Hayes of his right to have the jury answer that question.
Under the plain-error standard, even when the first three pron gs are satisfied, we
will reverse only if it is necessa ry to ensure the fairness and integrity of the judicial
proceedings. Griller, 583 N.W.2d at 740. We conclude that this fourth prong is sati sfied
because Hayes did not have an op portunity to present his accoun t to the jury that the BB
gun was not a dangerous weapon. See State v. Baird, 654 N.W.2d 105, 114 (Minn. 2002)
(“Fairness [under the plain-error standard] requires that [the defendant] be given an
opportunity to present his account of the facts to a jury under the proper instructions.”)
Allowing Hayes’s second-degree-assault conviction to stand, whe n the jury was directed
to find an element of the offense, would undermine “the public’s confidence in the fairness
and integrity of judicial proceedings.” See State v. Little , 851 N.W.2d 878, 886 (Minn.
2014) (describing the fourth prong as a question of whether the conviction will adversely
affect the public perception of the proceedings).

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In sum, the postconviction cour t abused its discretion in denying Hayes a new trial
on the second-degree assault charge.
II. The postconviction court did not abuse its discretion in de nying Hayes a new
trial on his terroristic-threats convictions.

Although the parties do not distinguish the instructional erro r’s effect on the second-
degree-assault conviction and the terroristic-threats convictions, it is necessary to address
the terroristic-threats convictions separately. As discussed above, the error with respect to
second-degree assault directed a verdict on the use of a danger ous weapon and deprived
Hayes of the right to have the jury decide every element of the offense. The effect of the
error on the terroristic-threats convictions, however, was not so drastic.
The jury instructions explained that the first element of terroristic threats is that the
defendant “threaten[ed], directly or indirectly, to commit any crime of violence,” Minn.
Stat. § 609.713, subd. 1 (2010), and then identified the “crime of violence” as second-
degree assault. Thus, the jury question on the first element wa s whether the state proved,
beyond a reasonable doubt, that Hayes had made threats to use a dangerous weapon.
Unlike in the context of the second-degree assault conviction, the district court did
not remove this question from the jury by giving the BB-gun ins truction. The erroneous
instruction was, in essence, that a BB gun is a dangerous weapon. Even assuming that it is,
that fact does not establish that threats to use a dangerous weapon were made. Threats are
proved by apprehension of danger, not by the actual existence o f it. See State v. Murphy,
545 N.W.2d 909, 915 (Minn. 1996) (“[A threat is a] communication . . . [that] would have
a reasonable tendency to create apprehension that its originato r will act according to its

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tenor.” (quotation omitted)); State v. Smith, 825 N.W.2d 131, 135 (Minn. App. 2012) (“A
threat is a declaration of an intention to injure another or hi s property by some unlawful
act.” (quotation omitted)). The jury was asked the question whe ther apprehension of a
second-degree assault was created by Hayes, and they answered in the affirmative. We are
not convinced that the jury’s answer was forced by the erroneou s instruction because the
instruction did not pose any logical impediment to deciding otherwise. Because the district
court did not direct the jury to find an element of terroristic threats, Moore does not apply.
Moroever, our review of the record convinces us that the juror s would not have
reached a different verdict on the terroristic-threats charge e ven if they had not been
informed that a BB gun was a firearm. There was ample evidence that Hayes made direct
and indirect threats to use a dangerous weapon to both his estranged wife and the two other
persons present. First, in a phone call Hayes made to his wife on his way to her residence,
Hayes threatened to beat her. Th at threat did not necessarily i nvolve the BB gun as a
dangerous weapon. “Depending on the circumstances of the assault, hands and feet may be
dangerous weapons.” State v. Davis, 540 N.W.2d 88, 90 (Minn. App. 1995), review denied
(Minn. Jan. 31, 1996). Second, the two other victims of threats testified that they believed
Hayes was wielding a gun and that he threatened to shoot them. Third, the jury physically
examined the BB gun during the tr i a l , w h i c h w o u l d h a v e a l l o w e d the jurors to assess
whether one who was threatened w ith the BB gun would have perce ived it to be a
dangerous weapon. On this record, there is no reasonable likeli hood that the BB-gun
instruction had a significant effect on the jury’s verdict as to terroristic threats.

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Because the BB-gun instruction di d not prejudice Hayes as to the terroristic-threats
convictions, we need not address the fourth prong of the plain- error analysis. We affirm
the terroristic-threats convictions.
III. Pro se arguments
We briefly address the arguments made only in Hayes’s pro se b rief. First, Hayes
asserts that the district court made an evidentiary error by allowing the jury to examine the
BB gun while in deliberation. He argues that the BB gun exerted “extraneous influence”
on the jury because it was erroneously characterized as a firea rm. This argument lacks
merit because it is not disputed that the BB gun was legitimate ly admitted into evidence
and the BB gun remained relevant even if it was not a firearm. Also, Hayes did not make
this argument to the postconviction court and thus forfeited the issue. See Andersen v. State,
913 N.W.2d 417, 428 n.11 (Minn. 2018) (citing Roby v. State, 547 N.W.2d 354, 357 (Minn.
1996)) (holding that some of appellant’s claims would not be considered on appeal because
they were not raised before the postconviction court).
Second, Hayes argues that doubl e jeopardy bars his conviction for fifth-degree
assault as a lesser-included offense to second-degree assault. This argument lacks merit
because the two convictions involve different victims. Also, he did not make this argument
to the postconviction court, and it is forfeited. See Andersen, 913 N.W.2d at 428 n.11.
Third, Hayes argues that the appellate public defender provide d ineffective
assistance because she did not i nclude his previous two claims in her brief to this court.
This argument lacks merit because the two pro se claims lack merit.
Affirmed in part, reversed in part, and remanded.