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This opinion will be unpublished and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
A19-0582

State of Minnesota,
Respondent,

vs.

Dewayne Braswell,
Appellant.

Filed March 16, 2020
Affirmed
Connolly, Judge

Hennepin County District Court
File No. 27-CR-18-14448

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

Michael O. Freeman, Hennepin County Attorney, Sarah J. Vokes, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Jodi L. Proulx, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Connolly, Presiding Judge; Reilly, Judge; and Kirk,
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
CONNOLLY, Judge
Appellant challenges his convictions for drive -by shooting and for unlawful
possession of a firearm, arguing that the evidence was insufficient to prove either crime
and that the district court abused its discretion in admit ting prejudici al relationship
evidence of appellant’s subsequent bad acts against the victim. Because there was
sufficient evidence to prove that appellant committed the drive -by shooting, and by
extension, possessed a firearm , and because there was no abuse of discre tion i n the
admission of evidence of appellant’s subsequent bad acts against the victim, we affirm.
FACTS
In May 2018, appellant Dewayne Braswell began dating S.S., who shared custody
of her five -year-old daughter with her former husband. On Friday, June 1, 2018, S.S.’s
parents came to town for a family event and stayed in a hotel. S.S. spent some time with
them that evening, then spent time with appellant. On Saturday, June 2, S.S. dropped
appellant off in the afternoon and met her parents. She and her daughter spent the evening
with them at the hotel, and S.S. fell asleep in their hotel room. Appellant called and texted
her several times, became angry when she did not respond, and accused her of being with
someone else. S.S. thought a ppellant was insecure and did not answer his calls. He
continued to call, text, and FaceTime her. On Sunday, June 3, appellant continued to call;
S.S. texted him that he was scaring her and that she could not “do this with [him].”
Early in the morning on Monday, June 4, appellant repeatedly called and texted S.S.,
threatening her , while she was alone in her apartment. When s he talked with him on

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FaceTime, she could see that he was in a car. During one phone call, appellant accused
S.S. of having another man in her apartment.
Later that morning, S.S.’s daughter arrived at the apartment so S. S. could style her
hair for a modeling audition. While S.S. was talking to her cousin on one phone and having
a FaceTime video call with appellant on another ph one, she heard shots in the apartment.
She took her daughter behind the couch and called 911. S.S. continued to receive texts
from appellant; these included “Watch,” “Show you how to play,” and “See if you all make
the [au]dition.”
When the police arr ived, S.S. told them she thought the shots had been fired by
appellant. According to phone records the police obtained, appellant’s cell phone was then
in the area of S.S.’s apartment . At 9:03 a.m., he texted S.S. that he was on his way. At
9:12 a.m., he texted that there were a lot of police around, an d an hour later he texted that
the “police can’t save you.” S.S. was frightened and left the apartment to stay with her
family.
Forensic evidence was consistent with five shots from one gun having been fired
from the south end of the apartment’s parking lot. Two shots entered appellant’s apartment
through a window and a wall, and two shots entered a nearby apartment. Surveillance video
showed a dark gray SUV enter the parking lot; a male point a gun through an open window;
the gun recoil five times, presumably from having been fired; and the SUV drive away.
Other evidence showed appellant’s phone going to the apartment before th e
shooting, leaving immediately afterwards, being in north Minneapolis, and returning to the
apartment about a half hour later, then again leaving and returning.

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Later that afternoon, appellant was seen driving an SUV that matched the
description of the SUV on the surveillance video. The following day, the SUV’s owner
was contacted. She said she had lent appellant the SUV on the previous day, i.e., the day
of the shooting, and he had since returned it.
Appellant was not apprehended, a nd he continued to contact S.S. Twelve days
later, on June 16, she agreed to see him. When they were together driving in S.S.’s car,
her phone rang, and she did not answer it. Appellant demanded to see her phone and
became aggressive. When she gave him the phone, he read her text messages and became
very angry, threatened S.S., punched her repeatedly in the face, and threatened to kill her.
She asked to call her daughter, who was staying with S.S.’s former husband, and did so.
Then appellant started to strangle S. S. with his hands around her neck, but desisted when
she began to black out. The police arrived and followed the car until it stopped; appellant
then fled on foot. Again, he was not apprehended. He continued to call S.S. and told her
not to go to the police.
When appellant was apprehended, he was arrested and charged with one count of
drive-by shooting at S.S.’s residence and one count of possession of a firearm by an
ineligible person. He continued calling S.S. from the jail to threaten her and dissuade her
from coming to the trial. A jury found appellant guilty on both counts. He was sentenced
to 105 months in prison for drive-by shooting and to a concurrent 60 months in prison for
unlawful possession of a firearm.
He challenges his conviction s, arguing that the evidence was not sufficient for the
jury to reasonably conclude that he was guilty of the offenses and that the district court

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abused its discretion when it admitted relationship evidence of appellant’s post -incident
conduct with S.S.
D E C I S I O N
1. Sufficiency of the evidence
The evidence in this case is circumstantial.
[T]he first step of our circumstantial evidence test . . . requires
an appellate court to winnow down the evidence presented at
trial by resolving all questions of fact in favor of the jury’s
verdict, resulting in a subset of facts that cons titute the
circumstances proved. . . .
. . . .
. . . In determining the circumstances proved, we
disregard evidence that is inconsistent with the jury’s verdict.
The second step is to independently consider the reasonable
inferences that can be drawn from the circumstances proved,
when viewed as a whole. We give no deference to the jury’s
choice between reasonable inferences at this second step. To
sustain the conviction, the circumstances proved, when viewed
as a whole, must be consistent with a reasonable inference that
the accused is guilty and inconsis tent with any rational
hypothesis except that of guilt.

State v. Harris, 895 N.W.2d 592, 600-01 (Minn. 2017) (quotation and citations omitted).
Appellant agrees that the circumstances proved in this case are consistent with a
reasonable inference that he is guilty but argues that they “are also consistent with a
hypothesis that someone else committed the offense of drive -by shooting.” However,
many of the facts appellant cites in support of this argument are negatives : (1) appellant
was not observed at S.S.’s apartment before, during , or after the shooting; (2) none of the
shell casings had prints or DNA linked to appel lant; (3) no gun was recovered; (4) the
phone associated with appellant was not located; (5) appellant was not the registered owner

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of the phone involved; and (6) the SUV in which appellant was seen on the day of the
shooting was not definitively proved to be the SUV from which the shots were fired . But
no conclusion can be drawn from two negative premises, and only negative conclusions
can be drawn from one negative premise, so these negative premises would have to be
paired with positive premises to supp ort the conclusion that appellant was not the
perpetrator.1 Those positive premises would be absurd: e.g., (1) all drive-by shooters are
observed at the site of the shooting; (2) all shell casings have the prints or DNA of the
shooter; (3) all guns of drive-by shooters are recoverable; (4) all drive-by shooters’ phones
can be located; (5) all offensive texts are sent by the owner of the phone used; and (6) all
vehicles photographed by a surveillance video camera can be specifically identified.
The positive facts on which appellant relies, i.e., that the owner of the SUV in which
appellant was seen on the day of the shooting loaned the SUV to others and consented to
them loaning it to third parties, are not “circumstances proved” because they depend on
evidence inconsistent with the verdict. Thus, appellant has failed to show that these facts
are consistent with the hypothesis that someon e else was the drive -by shooter . We
conclude that the evidence is sufficient to support the jury’s verdict.
2. Admission of relationship evidence
“Evidence of domestic conduct by the accused against the victim of domestic
conduct . . . is admissible unless the probative value is substantially outweighed by the
danger of unfair prejudice . . . .” Minn. Stat. § 634.20 (2018). “Domestic conduct” includes

1 See Ruggero J. Aldisert, Logic for Lawyers 156-57 (3d ed. 1997).

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domestic abuse. Id. The purpose of the statute is to “demonstrate the history of the
relationship between the accused and the victim.” State v. Barnslater , 786 N.W.2d 646,
650 (Minn. App. 2010), review denied (Minn. Oct. 27, 2010). A district court’s decision
to admit domestic-conduct or relationship evidence under Minn. Stat. § 634.20 in a
domestic-abuse prosecution is reviewed for an abuse of discretion. State v. McCoy , 682
N.W.2d 153, 161 (Minn. 2004).
Appellant argue s that the probative value of the evidence of his post-incident
relationship evidence with S.S. was substantially outweighed by the danger of unfair
prejudice. Evidence has probative value if it assists the jury in judging the credibility of
the principals when the complainant cannot recall events, id., or if it provides context as to
the parties’ r elationship. State v. Hormann , 805 N.W.2d 883, 890 (Minn. App. 2011) ,
review denied (Minn. Jan. 17, 2012). S.S. had no difficulty recalling the events of which
she complained, and appellant argues that, because the relationship evidence occurred after
the crime charged, it did not provide “an accurate history of the couple’s relationship.” But
a victim’s testimony about an assault after the offense has been found to be probative
relationship evidence. See, e.g., State v. Anderson, 900 N.W.2d 438, 440-41 (Minn. App.
2017) ( upholding admission of victim’s testimony about strangulation assault the day
following the offense as relationship evidence) ; State v. Lindsay , 755 N.W.2d 752, 756
(Minn. App. 2008) (upholding admission of evidence of a defendant’s conduct more than
a month after the charged offense because “[i]n the context of [the defendant’s] relationship
with [the victim], evidence of [the defendant’s] later conduct had significant probative
value . . . .”), review denied (Minn. Oct. 29, 2008). Here, S.S. testified about events that

8
occurred on June 16, 12 days after the offense charged. Her testimony, like the testimony
in Anderson, “informed the jury of the nature of [her] relationship [with appellant] , the
times that she felt afraid of [him], and the times that [he] attempted to manipulate, control,
and restrain her. This testimony has obvious probative value.” 900 N.W.2d at 441.
Moreover, the district court gave a cautionary instruction on the evidence of the
June 16 incident, telling the jury that “[t]he evidence was offered for the limited purpose
of demonstrating the nature and extent of the relationship between the defendant and [S.S.]
in order to assist you in determining whether the defendant committed those acts with
which the defend ant is charged in the complaint. ” A limiting instruction “lessen[s] any
probability that the jury would rely improperly on relationship evidence.” Id. at 441-42.
Appellant argues that the district court erred by instructing the jury on relationship
evidence only in its final instructions, not prior to S.S.’s testimony, and that its instruction
therefore “failed to lessen the probability of the undue weight being gi ven by the jury to
the evidence.” But appellant provides no support for the view that the instruction must be
given before the testimony, not at the end of the trial.
Appellant relies on State v. Zinski, 927 N.W.2d 272 (Minn. 2019). He concedes that
Zinski had not been released at the time of trial here and is therefore not dispositive, but he
ignores a significant distinction: in Zinski no limiting instruction was given, while the
district court here did give a limiting instruction. Zinski set out a rule that “when a district
court admits relationship evidence under Minn. Stat. § 634.20, over a defendant’s objection
that the evidence does not satisfy section 634.20, the court must sua sponte instruct the
jurors on the proper use of such evidence, unle ss the defendant objects to the instruction

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by the court.” 927 N.W.2d at 278. Zinski refers to, but does not adopt, language in State
v. Bauer, 598 N.W.2d 352, 365 (Minn. 1999) , that the instruction be give n “prior to the
admission of . . . evidence and again at the end of trial.” Zinski held that, prior to its rule,
there was no obligation for courts to give any relationship-evidence instruction sua sponte.
Id. Thus, Zinski does not support appellant’s view that the district court erred by giving
the instruction only at the end of trial. A jury is presumed to follow the district court’s
instructions. State v. James , 520 N.W.2d 399, 405 (Minn. 1994). Particularly in light of
the limiting instruction, the probative value of the relationship evidence was not
“substantially outweighed by the danger of unfair prejudice.” Minn. Stat. § 634.20.
Finally, appellant argues that he is entitled to a new trial because “[g]iven the detail
of S.S.’s testimony [as to the June 16 incident], including the admission of photographs
showing [her] injuries, there is a great probability that the wrongfully admitted evidence
had a significant impact on the jury’s verdict.” But even when evidence is unfairly
prejudicial and lacks probative value and the district court abuses its discretion in admitting
it, a defendant is not entitled to a new trial if there is ample other evidence to convict. State
v. O’Meara, 755 N.W.2d 29, 35 (Minn. App. 2008). Here, the evidence was more than

sufficient to convict appellant of a drive-by shooting and possession of a gun. There is no
basis for reversing and remanding for a new trial.
Affirmed.