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This opinion will be unpublished and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
A18-1337

State of Minnesota,
Respondent,

vs.

Deshawn Devontae Lamar Wilson,
Appellant.

Filed September 16, 2019
Affirmed
Peterson, Judge*

Hennepin County District Court
File No. 27-CR-17-15087

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

Michael O. Freeman, Hennepin County Attorney, Linda K. Jenny, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Andrea Barts, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Smith, Tracy M., Presiding Judge; Schellhas, Judge; and
Peterson, Judge.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.

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U N P U B L I S H E D O P I N I O N
PETERSON, Judge
In this appeal from convictions of aiding and abetting a drive-by shooting and aiding
and abetting second -degree assault, appellant Deshawn Devontae Lamar Wilson argues
that (1) the district court abused its discretion by admitting evidence of a threatening text
message, and (2) the evidence does not support two of his convictions . Wilson also
challenges his sentence , arguing that it exaggerates the criminality of his conduct. We
affirm.
FACTS
This appeal arises from convictions stemming from a drive-by shooting that
occurred in a Minneapolis neighborhood. The events leading up to the shooting began the
day before with an altercation that involved Wilson’s brother, D.K.
D.K. is the father of S.S.’s children. The day before the shooting, S.S. —who was
pregnant at the time—texted her cousin, R.H., that D.K. was choking her, and she needed
R.H. to come to her. R.H. drove to S.S. ’s house, along with her kids, her sister, and her
sister’s wife, where she confronted D.K. and “hit him.” D.K. called his siste r, N.K., to
come fight R.H. But before N.K. arrived, R.H. and S.S. left and returned to R.H.’s home.
Around the time R.H. returned home, N.K. arrived at R.H.’s house to fight. Several
people showed up for each “side” of the fight, including Se.S. Ultimately, R.H. fought
against N.K., and R.H.’s male cousin, P.S., fought against D.K. Wilson was not present
for the fights.

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The next day, R.H. received text messages from N.K. that N.K. was going to come
back to R.H.’s house so they could fight again. S.S. also received a threatening text
message from Wilson, which stated that he was going to “pull up to yo sh-t and take all the
babies out first.” That evening, R.H. noticed N.K. standing on the corner of her block but
tried to ignore her. Later, as R.H. and her family were leaving her home to go to the lake,
R.H. heard gunshots.
The gunshots were fired from the corner of R.H.’s block . At that moment, several
people—including R.H.’s children—were standing in R.H.’s yard and porch area. R.H.’s
cousin and S.S. were in a car parked in front of the house. According to R.H., she froze
when she heard the gunshots, and she told P.S. to grab her son. P.S. grabbed the child, and
after doing so, was shot in the arm. Bullets from the shooting also struck a neighbor’s
house, narrowly missing the homeowner and her three friends who were sitting on the
porch. In total, nine shots were fired. Immediately following the shooting, P.S.’s girlfriend
saw a car speed off through a nearby alley.
When police arrived, R.H. identified Wilson as the shooter. According to R.H., she
saw Wilson standing on the corner with a gun. Although she had never met Wilson before,
she knew it was him because he look ed like his brother and S.S. had show n her Wilson’s
Facebook picture.1

1 In addition to R.H.’s identification, the investigating officer obtained two descriptions of
the shooter: a tall, light-skinned (almost white) male and a short, dark-skinned, black male.
Police believed that there were two different guns fired based on the pause between
gunshots recorded by police technology.

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The state charged Wilson with one count of aiding and abetting a drive-by shooting
and eleven counts of aiding and abetting second-degree assault, one count for each alleged
victim. Before a jury trial began, the state sought to admit the text message that Wilson
sent S.S. on the day of the shooting (in which he stated he was going to “take all the babies
out first ”) as inextr icably intertwined with the drive-by shooting. Wilson opposed the
admission of the message, but the district co urt found that the message was linked
inextricably both in time and circumstance s to the charged offense and allowed its
admission.
At trial, the state presented testimony from several of the individuals present during
the shooting. R.H. testified to the events, as described above , and identified Wilson in
court as the shooter with 100 percent certainty.2 P.S. testified that he did not see the shooter
and that he was shot in the left arm. Another witness who was present, B.B., testified about
who was present during the shooting. R.H.’s neighbor testified that she and her friends
were on her porch when they heard gunshots , and she described the bullet hole left in her
mailbox.
The state presented testimony from an FBI agent who analyzed relevant cell-phone
call-detail records. According to the agent, Wilson’s phone was near the scene of the
shooting approximately 90 minutes before the shooting occurred, but at the tim e of the

2 R.H. also acknowledged that she did not identify Wilson in a photo lineup given by police
but explained that the picture of Wilson was an old picture.

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shooting, there was “zero possibility” that Wilson’s phone was at the location of the
shooting.3
Wilson testified that his mother told him that his brother, D.K., choked S.S., and
Wilson was upset about that, but he was not angry about the fight because it did not have
anything to do with him. Wilson admitted that he sent the threatening message to S.S., but
he explained that he was angry with her based on previous messages and never intended to
hurt anyone. Wilson testified t hat, at the time of the shooting, he was with his friend
heading from Brooklyn Park to downtown Minneapolis to find his brother.
The jury fo und Wilson guilty on all counts and found the presence of several
aggravating factors through a special-verdict form. At sentencing, the district court did not
sentence Wilson for aiding and abetting a drive -by shooting. Instead, the district court
sentenced Wilson to 36 months for each count of the eleven counts of aiding and abetting
second-degree assault. Six of those counts were to be served consecutively and five counts
were to be served concurrently . Also, with respect to t he man who was shot , the district
court imposed a 24-month upward departure, for a total sentence of 240 months. Wilson
appeals, challenging his convictions and his sentence.

3 The state also presented testimony from law-enforcement officers that no DNA was found
on shell casings recovered from the shooting. Also, although there was testimony that the
casings matched a firearm that was recovered from a separate crime, the firearm was not
tested for DNA because the way it was stored and handled made it unsuitable for testing.

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D E C I S I O N
I. The district court did not abuse its discretion by admitting Wilson’s
threatening message to S.S.

Wilson argues that the district court abused its discretion by admitting the
threatening text message, “Stop making threats . . . we’ll pull up to yo sh-t and take all the
babies out first,” which he sent to S.S. The district court found that the message was
“inextricably linked” to the charged offense, based on the circumstances, subject matter,
and the domestic-assault incident between D.K. and S.S.
We review a district court’s evidentiary decision for an abuse of discretion. State v.
Riddley, 776 N.W.2d 419, 424 (Minn. 2009) . “ A defendant appealing the admission of
evidence has the burden to show the admission was both erroneous and prejudicial.” Id.
In general, evidence of other crimes or other bad acts is inadmissible. State v.
Spreigl, 139 N.W.2d 167, 169 ( Minn. 1965). But “[i] mmediate-episode evidence is a
narrow exception to the genera l character evidence rule .” Riddley, 776 N.W.2d at 425.
“[I]mmediate episode evidence is admissible where two or more offenses are linked
together in point of time or circumstances so that one cannot be fully shown without
proving the other . . . . ” Id. (quotation omitted). The supreme court has “repeatedly
affirmed the admission of immediate -episode evidence when there is a close causal and
temporal connection between the prior bad act and the charged crime.” Id.
Citing State v. Fardan , 773 N.W.2d 303, 316-17 (Minn. 2009), and Riddley, 776
N.W.2d at 426 -27, Wilson argues that the threatening message was not sufficiently
connected to the shooting. In Fardan, the supreme court held that , in a murder case, the

7
district court abused its discr etion by a dmitting evidence of crimes committed after the
murder, noting that the murder was concluded before the later crimes occurred, and there
was at lea st an hour between the crimes , resulting in an insufficient connection between
the murder and the later crime s. 773 N.W.2d at 316-17. In Riddley, the supreme court
concluded that, although there was a close temporal connection between a robbery and a
murder that occurred 15 minutes later , there was no causal connection between the two
crimes and it was an abuse of discretion to admit evidence of the robbery. 776 N.W.2d at
426-27.
Unlike Fardan and Riddley, the close causal and temporal connection between
Wilson’s message threatening to “take out” the children first and the shooting that occurred
two hours later is evident. Wilson’s threat was not simply a separate crime that occurred
the same day as the charged crime; it was directly related to the shooting and assaults that
occurred. The threatening message was sent approximately two hours before the shooting
occurred, and the threat escalated into an assault. See State v. Leecy, 294 N.W.2d 280, 282
(Minn. 1980) (holding that testimony regarding earlier threats was immediate -episode
evidence because the threats escalated into an assault). The district court did not abuse its
discretion when it admitted the threatening message as immediate-episode evidence.4

4 Wilson also argues that the message was more prejudicial than probative. But district
courts have broad discretion to determine whether evidence is more probative than
prejudicial and whether to admit evidence under rule 403. Doe 136 v. Liebsch, 872 N.W.2d
875, 882 (Minn. 2015). Because the threatening message was directly linked to the charged
crimes, the district court did not abuse its discretion by admitting the message. Wilson also
contends that other evidence proved Wilson’s motive and identity such that the state did
not need to a dmit the message . But “[t]he state may prov e all relevant facts and
circumstances which tend to establish any of the elements of the offense with which the

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II. Wilson’s convictions of aiding and abetting second -degree assault for victims
R.S. and Se.S. are supported by sufficient evidence.

Wilson argues that his convictions for aiding and abetting second -degree assault
with respect to victims R.S. and Se.S. are not supported by sufficient evidence . H e
contends that the evidence did not prove that R.S. and Se.S. were near the scene at the time
of the shooting.
Direct evidence is “ evidence that is based on personal knowledge or observation
and that, if true, proves a fact without inference or presumption.” Bernhardt v. State, 684
N.W.2d 465, 477 n.11 (Minn. 2004) (quotation omitted). In cases where direct evidence
supports an element of the offense, our review is limited to “a painstaking analysis of the
record to determine whether the evidence, when viewed in a light most favorable to the
conviction, was sufficient to permit the jurors to reach the verdict which they did.” State
v. Horst, 880 N.W.2d 24, 40 (Minn. 2016) (quotation omitted). And we assume that jurors
believed the state’s witnesses and did not believe contrary evidence. State v. Olhausen ,
681 N.W.2d 21, 25 (Minn. 2004).
Although R.S. and Se.S. did not testify, another victim explicitly testified that R.S.
and Se.S. were present when the shooting occurred. An officer also testified that she spoke
with R.S. and Se.S. T his testimony was sufficient for the jury to conclude that R.S. and
Se.S. were present when the shooting occurred. See id. (stating that we assume that jurors

accused is charged, even though such facts and circumstances may prove or tend to prove
that the defendant committed other crimes.” State v. Wofford, 114 N.W.2d 267, 271 (Minn.
1962).

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believed the state’s witnesses) ; see also State v. Foreman , 680 N.W.2d 536, 539 (Minn.
2004) (noting that uncorroborated tes timony from a single credible witness can support a
conviction). Accordingly, we conclude that sufficient evidence supports Wilson’s
convictions with respect to R.S. and Se.S.5
III. The district court did not abuse its discretion by imposing a 240 -month
sentence.

Wilson argues that the district court abused its discretion by sentencing him to 240
months in prison, which, he contends, unfairly exaggerates the criminality of his conduct.
We will reverse a district court’s sentencing decision for an abuse of discretion. State v.
Soto, 855 N.W.2d 303, 307 -08 (Minn. 2014) . “We review a district court’s decision to
impose consecutive sentences for an abuse of discretion ,” and we will intervene when a
sentence “is disproportionate to the offense or unfairly exaggerates the crimina lity of the
defendant’s conduct.” State v. Ali, 895 N.W.2d 237, 247 (Minn. 2017) (quotation omitted).

5 Wilson also contends that the state did not prove that he had the required intent to assault
R.S. or Se.S. Assault-fear is a specific-intent crime, which means that the defendant must
intend to cause a particular result. State v. Fleck, 810 N.W.2d 303, 309 (Minn. 2012). But
it “does not require a finding of actual harm to the victim.” State v. Hough, 585 N.W.2d
393, 395 (Minn. 1998). In a similar case where the defendant fired several shots into a
home where six people were present, the supreme court stated that “[w]hen an assailant
fires numerous shots from a semiautomatic weapon into a home, it may be inferred that the
assailant intends to cause fear of immediate bodily harm or death to those within the home,”
and determined that the defendant’s intentional behavior was not excused because he did
not know other people besides his intended target were in the home. Id. at 397. Similarly
here, although Wilson may not have known of every individual who was present at the
scene of the shooting, under Hough, Wilson is not required to know that each person was
present in order to have the requisite intent for assault.

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The district court did not sentence Wil son for the drive -by shooting. Instead, it
sentenced him to 36 months for each of the eleven counts of second-degree assault. Six of
those counts were to be served consecutively and five counts were to be served
concurrently. A lso, with respect to the man who was sh ot, the district court added 24
months, for a total sentence of 240 months.
We conclude that t he district court’s sentence is within its discretion. A district
court may impose multiple sentences “ if there were multiple victims, as long as the
imposition of multiple sentences does not unfairly exag gerate the criminality of the
defendant's conduct.” State v. Bookwalter, 541 N.W.2d 290, 294 (Minn. 1995).
Citing two supreme court decisions, Wilson argues that his sentence unfairly
exaggerates the criminality of his conduct. But those cases do not lead us to conclude that
the district court abused its discretion. In State v. Whittaker, the supreme court concluded
that six consecutive 36 -month sentences f or second -degree assault s of six victims (in
addition to other sentences) did not unfairly exaggerate the criminality of the defendant’s
conduct because the offenses involved terrorizing the victims in their home using weapons.
568 N.W.2d 440, 453 (Minn. 1997). And in State v. Ferguson, the supreme court held that
“a single sentence for drive-by shooting at an occupied building is not commensurate with
[the defendant’s] culpability for using a dangerous weapon to intentionally cause eight
persons to fear immediate bodily harm” and reinstated multiple sentences, to be served
concurrently. 808 N.W.2d 586, 589-92 (Minn. 2012).
We agree with the district court’s observation that “ [i]t is really impossible to
exaggerate the gravity of this kind of offense wher e somebody is shooting somewhat

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randomly at a large number of people in numerous directions in a residential area.” Given
Wilson’s highly dangerous conduct, which resulted in eleven assaults —including one
victim who was shot—the 240-month sentence does not unfairly exaggerate the criminality
of his conduct.
Affirmed.