Sonny Syhavong, 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This opinion will be unpublished and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
A19-0654

Sonny Syhavong, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed January 6, 2020
Affirmed in part, reversed in part, and remanded
Worke, Judge

Nobles County District Court
File No. 53-CR-14-676

Cathryn Middlebrook, Chief Appellate Public Defender, Jessica Merz Godes, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

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

Joseph M. Sanow, Nobles County Attorney, Worthington, Minnesota; and

Travis J. Smith, Special Assistant County Attorney, Slayton, Minnesota (for respondent)

Considered and decided by Worke, Presiding Judge; Connolly, Judge; and
Jesson, Judge.
U N P U B L I S H E D O P I N I O N
WORKE, Judge
Appellant challenges the denial of his petition for postconviction relief, arguing that:
(1) his convictions are not supported by sufficient evidence; and (2) the district court erred
2
by entering a conviction for third-degree assault because it is a lesser-included offense of
second-degree assault. Because sufficient evidence supports appellant’s convictions but
because the district court erred by entering a conviction for third-degree assault, we affirm
in part, reverse in part, and remand for correction of the warrant of commitment.
FACTS
Appellant Sonny Syhavong was charged with aiding and abetting several criminal
offenses for an incident that occurred in July 2014. The following facts were elicited in
trial testimony.
At about 11:30 p.m., on July 3, 2014, A.R. was walking home from his friend’s
apartment when he noticed three people walking towards him. According to A.R.—who
was 18 at the time—he recognized the three males as Syhavong, T.P., and J.K. Syhavong
was 24 at the time, and T.P. and J.K. were both 13.
As the group approached A.R., Syhavong said something like “Hey, what’s up,
n-gger?” or “What’s you up to n-gger?” The group surrounded A.R., and Syhavong “chest-
bumped” him and said something like “[ w]hat n-gger?” Then, A.R. turned around to find
J.K. pointing a black “ gun” at him. A.R. testified that he looked for an orange tip on the
barrel to see if it was a BB gun, but he did not see one. J.K. was holding the gun with both
hands and had it pointed towards A.R.’s face. Feeling panicked and nervous, A.R. grabbed
the gun, pulled it down, and told J.K. to “[g]et that sh-t away from me.” After pulling the
gun down, A.R. testified he pulled his cell phone out of his pocket and looked at it. After
that, “[e]verything [went] black.”
3
A few hours later, A.R. woke up in his own bed nauseated and vomiting. He had a
headache, and his face was swollen and covered in cuts and bruises. A.R. also realized that
his cell phone was missing. Based on his injuries, A.R.’s mother took him to the hospital,
where he was diagnosed with an intracerebral hemorrhage from a forceful, blunt injury to
the head. At the hospital, A.R. spoke with police, but could not remember who attacked
him, only that he was attacked from behind. He was relea sed from the hospital that same
day.
The day after the assault, A.R.’s brother used the Find My iPhone app to locate
A.R.’s missing cell phone. The app led A.R.’s brother and sister to J.K.’s house. When
they arrived, T.P. was at the house with A.R.’s cell phone. T.P. gave it to A.R.’s brother,
and A.R.’s sister called the police. When they arrived, A.R.’s brother gave them the cell
phone.
A few days later, A.R. returned to the hospital a second time and was transferred to
another hospital where he was diagnosed with a concussion. A.R. later gave a second
statement to police, in which he was able to recall more details about the attack, including
that he believed Syhavong, T.P., and J.K. attacked him. Based on his role in the attack, the
state charged Syhavong with aiding and abetting each of the following crimes: first-degree
aggravated robbery, second-degree aggravated robbery, simple robbery, second-degree
assault with a dangerous weapon, and third-degree assault-substantial bodily harm.1

1 The state initially charged Syhavong with two other crimes, but they were dismissed
before trial.
4
At trial, the state presented testimony from A.R., who explained the alleged assault
for the jury . D uring his testimony, A.R. further explained his beliefs regarding the gun.
When asked if he believed the gun was real, A.R. responded , “At the time, no. I was still
under the impression that it was just a BB gun.” And A.R. clarified that he did not feel
threatened because he thought it was a “toy gun,” which is why he had the confidence to
grab the gun and pull it down.2
The state also presented testimony from other individuals involved with the attack
and its aftermath. First, a police officer described T.P.’s and J.K.’s physical appearance.
According to the officer, T.P. is between 4 feet 10 inches and 5 feet tall, weighing about
100 pounds wit h a f airly thin, normal build. The officer described J.K. as a small male,
weighing roughly 57 pounds and being about 4 feet 5 inches tall. Second, the emergency-
room doctor testified that A.R.’s injury of an intracerebral hemorrhage required “a
tremendous amount of force.” Finally, T.P. testified that he was present when A.R. was
attacked, but that Syhavong was not. According to T.P. , the only other person present
during the attack was J.K., who struck A.R. with his fists. T.P. also testified that J.K. gave
him A.R.’s cell phone and that after the attack, they both ran back to J.K.’s house.
At the end of the state’s case, Syhavong moved for a judgment of acquittal or a
directed verdict on the charge of aiding and abetting second-degree assault with a
dangerous weapon, arguing that the state failed to prove that J.K. used a dangerous weapon.
After acknowledging that it was a “very close call,” the district court denied Syhavong’s

2 The state did not present the actual object used during the alleged attack.
5
motion. Syhavong did not present any witnesses, and the case was submitted to the jury,
who found Syhavong guilty of all five charges. Subsequently, the district court sentenced
Syhavong to 98 months in prison for aiding and abetting first-degree aggravated robbery.
Almost two years later, Syhavong filed a postconviction petition for relief alleging
that the state failed to prove that he intentionally aided and abetted the charged crimes.
Alternatively, Syhavong argued that the state failed to prove that J.K. used a dangerous
weapon, and asked the district court to vacate several convictions because they were lesser-
included offenses of other crimes. The postconviction court concluded that sufficient
evidence supported Syhavong’s convictions, but vacated his convictions for aiding and
abetting both second-degree aggravated robbery and simple robber y as lesser- included
offenses. Syhavong appeals.
D E C I S I O N
We review the denial of a petition for postconviction relief for an abuse of
discretion. Andersen v. State, 913 N.W.2d 417, 422 (Minn. 2018). And “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,” we
will not reverse the denial of a postconviction petitio n. Reed v. State, 793 N.W.2d 725,
729 (Minn. 2010). Syhavong argues that the postconviction court abused its discretion by
denying his petition because (1) insufficient evidence supports his convictions, and
(2) third-degree assault is a lesser-included offense of second-degree assault.

6
Sufficiency of the evidence

Syhavong raises two arguments related to the sufficiency of the evidence supporting
his convictions. First, Syhavong contends that the state failed to prove that he intentionally
aided and abetted any of the charged crimes. Second, Syhavong maintains tha t the state
did not prove beyond a reasonable doubt that J.K. used a dangerous weapon, a required
element of second-degree assault with a dangerous weapon.
In evaluating the sufficiency of the evidence, we “carefully examine the record to
determine whether the facts and the legitimate inferences drawn from them would permit
the jury to reasonably conclude that the defendant was guilty beyond a reasonable doubt of
the offense of which he was convicted.” State v. Griffin, 887 N.W.2d 257, 263 (Minn.
2016) (quotation omitted). In doing so, this court views the evidence “in the light most
favorable to the verdict, and it must be assumed that the fact-finder disbelieved any
evidence that conflicted with the verdict.” Id.
Intent
Syhavong argues that the evidence does not demonstrate that he intentionally aided
and abetted the charged crimes. Under the accomplice-liability statute, “[a] person is
criminally liable for a crime committed by another if the person intentionally aids, advises,
hires, counsels, or conspires with or otherwise procures the other to commit the crime.”
Minn. S tat. § 609.05, subd. 1 (2012). The phrase “intentionally aids” requires two
components: “(1) that the defendant knew that his alleged accomplices were going to
commit a crime, and (2) that the defendant intended his presence or actions to further the
7
commission of that crime.” State v. Bahtuoh, 840 N.W.2d 804, 810 (Minn. 2013)
(quotations omitted).
In general, the state proves a criminal defendant’s mental state through
circumstantial evidence. State v. Schneider, 402 N.W.2d 779, 782 (Minn. 1987). When
reviewing the sufficiency of circumstantial evidence, we use a two-step analysis. State v.
Silvernail, 831 N.W.2d 594, 598 (Minn. 2013). In the first step, we identify the
circumstances proved by the state. Bahtuoh, 840 N.W.2d at 810. At this stage, we defer
to “the jury’s acceptance of the [s]tate’s evidence and its rejection of any evidence in the
record that is inconsistent with the circumsta nces proved by the [s]tate.” Loving v. State,
891 N.W.2d 638, 643 (Minn. 2017). Then, the second step “is to determine whether the
circumstances proved are consistent with guilt and inconsistent with any rational
hypothesis except that of guilt.” Silvernail, 831 N.W.2d at 599 (quotations omitted). In
doing so, “[w]e examine independently the reasonableness of all inferences that might be
drawn from the circumstances proved; including the inferences consistent with a
hypothesis other than guilt.” Id. (quotation omitted). “If a reasonable inference other than
guilt exists, then [appellate courts] will reverse the conviction.” Loving, 891 N.W.2d at
643.
Turning to the first step in our analysis—identifying the circumstances proved—the
state and Sy havong agree that the state proved the following circumstances: A.R.
encountered Syhavong, T.P., and J.K. —all of whom he knew— as he was walking down
the street; Syhavong said something to A.R. like “Hey, what’s up, n-gger?” or “What’s you
up to, n-gger?”; Syhavong chest-bumped A.R.; A.R. turned around and saw J.K. pointing
8
a black gun at him; A.R. told J.K. to “[g]et that sh-t away from me” and pulled down the
gun; A.R. looked at his cell phone and then blacked out; A.R. woke up in his bed nauseated
and beaten up; A.R.’s cell phone was missing; and the cell phone was recovered from T.P.3
Having established the circumstances proved by the state, our analysis next turns to
“whether the circumstances proved are consistent with guilt and inconsistent with any
rational hypothesis except that of guilt.” Silvernail, 831 N.W.2d at 599 (quotation
omitted). Here, the circumstances proved by the state support the jury’s conclusion that
Syhavong intentionally aided and abetted the charged crimes. The state established that
Syhavong approached A.R. while he was walking home, spoke to him using expletives,
and physically engaged A.R. by chest-bumping him. This conduct, which occurred
immediately before A.R. turned around to find a gun pointed at him, indicates that
Syhavong acted intentionally in aiding and abetting the attack. See State v. Cox, 820
N.W.2d 540, 549 (Minn. 2012) (“When determining whether a person played a knowing
role in the commission of the crime, we may infer criminal intent from the person’s
presence, companionship, and conduct both before and after the crime.”).
Further, nothing in the circumstances proved indicates that Syhavong tried to stop
the other two males from attacking A.R. or that Syhavong expressed any surprise or

3 Additionally, the state (correctly) notes a few additional circumstances proved at trial:
A.R. suffered an intracerebral hemorrhage, as well as a concussion; it requires a
tremendous amount of force to cause an intracerebral hemorrhage; both T.P. and J.K. were
13 at the time of the attack; T.P. was between 4 feet 10 inches and 5 feet tall at the time of
the attack and weighed around 100 pounds; and J.K. was roughly 4 f eet 5 inches and
weighed 57 pounds.

9
objection to the attack. See Bahtuoh, 840 N.W.2d at 810 (identifying “a lack of objection
or surprise under the circumstances” as a factor that may support a jury’s inference of the
requisite state of mind); see also State v. Parker, 164 N.W.2d 633, 641 (Minn. 1969)
(stating that if evidence “shows that a person is present at the commission of a crime
without disapproving or opposing it,” a jury may consider this factor, with other
circumstances, to conclude that a defendant aided and abetted a crime). Considering the
circumstances proved by the state, Syhavong’s conduct is inconsistent with any rational
hypothesis other than guilt.
Still, Syhavong argues that the circumstances proved by the state do not exclude the
reasonable hypothesis that he was merely present when the attack occurred and had no
knowledge that the other two males planned to commit a crime. Although mere presence
alone does not prove intent to aid and abet a crime, “a person may aid or abet without
actively participating in the overt act.” Parker, 164 N.W.2d at 641. And the circumstances
proved show more than Syhavong’s mere presence: he and the other males surrounded
A.R., Syhavong addressed him using expletives, and he chest-bumped the victim
immediately before Syhavong’s companion pointed a gun at A.R. Despite Syhavong’s
assertion that the circumstances proved support a rational hypothesis that the other two
males—both aged 13 with small builds—made a sudden decision to assault and rob A.R.,
while Syhavong was merely present, the circumstances proved do not support such a
conclusion. See State v. Al-Naseer, 788 N.W.2d 469, 473 (Minn. 2010) (noting that the
state is not required to remove all doubt, but only all reasonable doubt). Accordingly, we
10
affirm the postconviction court’s conclusion that the state proved that Syhavong
intentionally aided and abetted the charged crimes.
Dangerous weapon4
Syhavong also argues that insufficient evidence supports his conviction for aiding
and abetting second-degree assault with a dangerous weapon because the state failed to
prove beyond a reasonable doubt that J.K. used a dangerous weapon. The only evidence
regarding the use of a dangerous weapon presented at trial was A.R.’s testimony.
“Testimony provided by a witness, concerning what the witness saw or heard, is considered
direct evidence.”5 State v. Brazil, 906 N.W.2d 274, 278 (Minn. App. 2017), review denied
(Minn. Mar. 20, 2018). And when an element of an offense is supported by direct evidence,
as is the case here, our review is limited “ to a painstaking analysis of the record to
determine whether the evidence, when viewed in the 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). In doing so, we assume “the jury believed the state’s
witnesses and disbelieved any evidence to the contrary.” State v. Moore, 438 N.W.2d 101,
108 (Minn. 1989).

4 Although Syhavong clearly raised this issue in his postconviction petition, the
postconviction court did not explicitly address this argument. See Scruggs v. State, 484
N.W.2d 21, 24-25 (Minn. 1992) (permitting this court to review a postconviction decision
in the absence of legal conclusions if the record is clear).
5 As this court has stated, “even with eyewitness testimony, the factfinder must make some
inferences in considering the testimony, such as whether the witness’s memory is accurate,
whether the witness accurately perceived the subject of the testimony, and even whether
the witness is telling the truth. That some inference is required for the factfinder to interpret
the evidence does not render otherwise direct evidence circumstantial.” Brazil, 906
N.W.2d at 279.
11
We now turn our focus to A.R.’s testimony about the gun at trial. When describing
the attack, A.R. testified J.K. had a black gun and that he looked for an orange tip on the
gun to see if it was a BB gun, but he did not see one. Nevertheless, A.R. did not think the
gun was real. During his testimony , when asked if he believed the gun was real, A.R.
further explained, “At the time, no. I was still under the impression that it was just a BB
gun.” And A.R. clarified that he did not feel threatened because he just thought it was a
“toy gun,” which is why he had the confidence to grab the gun and pull it down.
Although Syhavong contends that this testimony only establishes that J.K. had a toy
gun, A.R. did testify that, during at least one point of the attack, he believed the gun was a
BB gun. Viewing the evidence in the light most favorable to the verdict, A.R.’s testimony
provided the jury with a sufficient basis to conclude that J.K. had a BB gun. Horst, 880
N.W.2d at 40.
Having concluded that sufficient evidence supports a conclusion that J.K. had a BB
gun, we must now determine whether a BB gun falls within the statutory definition of a
dangerous weapon. 6 Resolution of this issue requires us to engage in statutory
interpretation, a question of law which we consider de novo. State v. Vasko, 889 N.W.2d
551, 556 (Minn. 2017).

6 Syhavong does not argue that a BB gun cannot be classified as a dangerous weapon under
the statute. Instead, he contends that a toy gun does not meet the definition of a dangerous
weapon. But because we conclude that the record contains sufficient evidence for the jury
to have concluded that J.K. used a BB gun, we focus our analysis on that object.
12
To obtain a conviction of second-degree assault, under Minnesota Statutes section
609.222, subdivision 1 (2012), the state must prove that a dangerous weapon was used
during the assault. “Dangerous weapon” is defined as
any firearm, whether loaded or unloaded, or any device
designed as a weapon and capable of producing death or great
bodily harm, any combustible or flammable liquid or other
device or instrumentality that, in the manner it is used or
intended to be used, is calculated or likely to produce death or
great bodily harm . . . .

Minn. Stat. § 609.02, subd. 6 (2012) (emphasis added). Under the third prong of this
definition, an object may be a dangerous weapon if it is “calculated or likely to produce
death or great bodily harm” in the manner in which it is used. Id. And “great bodily harm”
is defined as “bodily injury which creates a high probability of death, or which causes
serious permanent disfigurement, or which causes a permanent or protracted loss or
impairment of the function of any bodily member or organ or other serious bodily harm.”
Minn. Stat. § 609.02, subd. 8 (2012). Accordingly, “[w]hen determining whether an object,
even an inherently dangerous object, is a dangerous weapon, the court must examine not
only the nature of the object itself, but also the manner in which it was used.” State v.
Basting, 572 N.W.2d 281, 285 (Minn. 1997).
Here, J.K. pointed the BB gun at A.R. at close range while he was surrounded by a
group of males. This demonstrates an intent to use the BB gun to frighten A.R. and to
potentially harm him. See State v. Patton, 414 N.W.2d 572, 574 (Minn. App. 1987) (stating
that the defendant “brandished [a] knife in such a manner that the jury could have found it
was used as a dangerous weapon”) (emphasis added). And had J.K. fired the BB gun at
13
such a close range, it is evident that “great bodily harm” could have resulted, perhaps in
the form of the loss of an eye or tooth. 7 See State v. Bridgeforth, 357 N.W.2d 393, 394
(Minn. App. 1984) (loss of tooth), review denied (Minn. Feb. 6, 1985); see also State v.
Hysell, 449 N.W.2d 741, 744 (Minn. App. 1990) (loss of eye) , review denied (Minn.
Mar. 15, 1990). Accordingly, we conclude that a BB gun falls within the statutory
provision defining a dangerous weapon as a “device or instrumentality that, in the manner
it is used or intended to be used, is calculated or likely to produce death or great bodily
harm.” Minn. Stat. § 609.02, subd. 6. And because the state proved that J.K. used a BB
gun—a dangerous weapon—sufficient evidence supports Syhavong’s conviction of aiding
and abetting second-degree assault with a dangerous weapon.
Lesser-included offense
Syhavong also argues that the postconviction court erroneously failed to vacate his
conviction for third-degree assault because it is a lesser-included offense of second-degree
assault. This presents a legal question which we review de novo. Cox, 820 N.W.2d at 552.
Under Minnesota law, a criminal defendant “may be convicted of either the crime
charged or an included offense, but not both.” Minn. Stat. § 609.04, subd. 1 (2012). The
statute provides that an included offense may be “a lesser degree of the same crime .” Id.,
subd. 1(1). And “[i]f the lesser offense is a lesser degree of the same crime or a lesser
degree of a multi-tier statutory scheme dealing with a particular subject, then it is an

7 Although not precedential, this court has previously determined that a BB gun is capable
of causing great bodily harm. See State v. Donson, No. A16-0306, 2 017 WL 393424, at
*2 (Minn. App. Jan. 30, 2017), review denied (Minn. Apr. 26, 2017).
14
‘included offense’ under section 609.04.” State v. Hackler, 532 N.W.2d 559, 559 (Minn.
1995).
Here, Syhavong was convicted of aiding and abetting second-degree assault with a
dangerous weapon and aiding and abetting third-degree assault-substantial bodily har m.
The postconviction court concluded that third-degree assault was not a lesser-included
offense. In reaching this conclusion, the postconviction court stated that no weapon is
required for third-degree assault, and that no harm must be inflicted for the second-degree
assault charge. Accordingly, the postconviction court declined to vacate Syhavong’s
conviction for aiding and abetting third-degree assault as a lesser-included offense.
We disagree. It is clear that “a lesser degree of the same crime” constitutes an
included offense. Minn. Stat. § 609.04, subd. 1(1). And here, aiding and abetting third-
degree assault is a lesser degree of aiding and abetting second- degree assault. Although
the postconviction court concluded, and the state argues, that second-degree assault with a
dangerous weapon does not necessarily require committing third-degree assault-substantial
bodily harm, “the fact that the lesser offense is not necessarily proved by proof of the
commission of the greater offense does not mean that the lesser offense is not an included
offense under section 609.04.” 8 Hackler, 532 N.W.2d at 559. Because it is a lesser-
included offense of his conviction for aiding and abetting second-degree assault, we reverse

8 The state argues that Hackler is inconsistent with the plain text of Minnesota Statutes
section 609.04 because the statute uses the word “may,” which is permissive. Minn. Stat.
§ 645.44, subd. 15 (2018). But this court is bound by supreme court precedent, and the
state does not contend that Hackler is no longer good law. See State v. Curtis, 921 N.W.2d
342, 346 (Minn. 2018).
15
Syhavong’s conviction of aiding an d abetting third -degree assault and remand for
correction of the warrant of commitment. 9 See State v. LaTourelle, 343 N.W.2d 277, 284
(Minn. 1984).
In sum, the postconviction court did not abuse its discretion by concluding that
sufficient evidence supports Syhavong’s convictions. But because aiding and abetting
third-degree assault is a lesser-included offense of aiding and abetting second -degree
assault, we reverse Syhavong’s aiding and abetting third-degree assault conviction and
remand for correction of the warrant of commitment.
Affirmed in part, reversed in part, and remanded.

9 We note that because Syhavong was sente nced only for his conviction of aiding and
abetting first-degree aggravated robbery, this decision does not impact Syhavong’s
sentence.