State of Minnesota, Respondent, vs. Danny Lee Harper, 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This opinion will be unpublished and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
A19-1271

State of Minnesota,
Respondent,
vs.
Danny Lee Harper,
Appellant.

Filed July 20, 2020
Affirmed in part, reversed in part, and remanded
Cochran, Judge

Hennepin County District Court
File No. 27-CR-18-16352

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

Michael O. Freeman, Hennepin County Attorn ey, Mark V. Griffin, Senior Assistant
County Attorney, Minneapolis, Minnesota (for respondent)

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

Considered and decided by Johnson, Presiding Judge; Co chran, Judge; and
Smith, John, Judge.


 Retired judge of the Minnesota Court of A ppeals, serving by appoi ntment 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
COCHRAN, Judge
Appellant was convicted of two counts of aiding and abetting first-degree criminal
sexual conduct following a stipulated-evidence trial. In this direct appeal from final
judgment, appellant argues that his convictions must be reversed because the evidence is
insufficient to corroborate acc omplice testimony introduced at trial. Alternatively,
appellant argues that the district court erred by convicting him of two counts of aiding and
abetting first-degree criminal sexual cond uct based on acts committed during a single
behavioral incident. And he argues that the district court e rred by imposing lifetime
conditional release on the second count when the district court simultaneously entered
convictions for both counts. Appellant also raises a number of issues in his supplemental
pro se brief.
We conclude that the accomplice testimony is sufficiently corroborated, but that the
district court erred by convicting appellant of two counts of aiding and abetting first-degree
criminal sexual conduct rather than one count. Because we reverse one of appellant’s
convictions, we do not reach the issue of the lifetime conditional release imposed based on
the second conviction. We also conclude that appellant’s argum ents in his pro se
supplemental brief are not sufficiently supported and are waived. Accordingly, we affirm
in part, reverse in part, and remand.
FACTS
In the spring of 2012, the victim left a teen treatment facility, became intoxicated,
and woke up in an apartment. While at th e apartment, the victim was sexually assaulted

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by several men and not allowed to leave. Even tually one of the men let the victim out of
the apartment. From there, she went directly to the hospital.
A Sexual Assault Resource Service (SARS) nurse examined the victim and prepared
a report (SARS report). The SARS report includ es the victim’s description of the events
at the apartment and the results of the SARS nurse’s examination. According to the SARS
report, the victim left the treatment facility with a girl she knew as Ashley. The two girls
drank alcohol. The next thing that the victim remembered was waking up at an apartment
in Minneapolis with four men that she did no t know. Ashley disappeared and the victim
was alone with the men.
The victim reported that the group of men sexually assaulted her and kept her in the
apartment against her will for several days. Th e victim stated that “they were all sexual
with me,” “they made me have sex,” and “the y pulled the skin in my vagina.” She also
reported that “they said they were going to kill me.” She believed that the group consisted
of a father and three sons, who lived at the apartment, and that one of the men was named
Danny. She stated that “the dad pushed really hard on my chest” and that one of the sons
put his hand around her neck . She also reported that the men made her have sexual
intercourse with a Somali man. And she reported that the group locked her in the bathroom
for a period of time. Eventually, one of the younger men let her leave the apartment when
the “dad” was asleep. She reported that while she was in the apar tment, she was given
drinks that may have had drugs in them and th at the men forced her to smoke marijuana.
The victim sustained significant bruising and internal abrasions. The SARS nurse took

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samples from the victim’s body, and sent those samples and some of the victim’s clothing
to be tested for DNA from the victim’s assailants.
Later that summer, Dexter Harper (Dexter)1 was charged for an unrelated crime and
his DNA profile matched the predominate male DNA profile of the DNA mixtures found
on vaginal and perineal swabs taken from th e victim. In November 2012, the victim
identified Dexter in a photo lineup as the “dad” assailant. The victim also confirmed that
Dexter had sex with her several times and th at the other men had sex with her one time
each. The victim stated that sh e was held in the apartment fo r three to four days by the
men. She reported Dexter hid her clothes and had the others watch her so that she could
not leave.
In July 2013, another DNA profile matched the victim’s samples. Timothy Harper’s
DNA profile matched the predominant DNA profile of a DNA mixture found on the
victim’s rectal swab. Timothy Harper is Dexter’s son.
An investigator met with Timothy in Apr il 2014. At first, Timothy did not recall
knowing the victim. But, when the investigat or showed Timothy a picture of the victim,
Timothy said that he knew her through his ha lf-brother, K.B. Timothy denied that he
engaged in sexual activity with the victim un til the investigator told him that his DNA
matched the DNA found on the victim. In May 2017, the state charged Timothy with
sexually assaulting the victim. Soon after being charged, Timothy agreed to participate in

1 We refer to Dexter Harper by his first na me because he has the same last name as
appellant. Similarly, we refer to Timothy Harper, mentioned later in the opinion, as
Timothy.

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a proffer interview. The stat e told Timothy that if his interview contained “something
favorable,” the state would discuss a “release from custody or significant reduction in [his]
sentence.”
In the proffer interview, Timothy indicated that when he arrive d at the apartment,
Dexter (his father), K.B. (his half-brother), appellant (Danny Harper), and the victim were
there. Timothy said his father lived at the apartment, and that K.B. and appellant were
staying at the apartment with his father. Appellant is Dexter’s younger brother and
Timothy’s uncle. Timothy did no t live at the apartment at th e time. Timothy noted that
the apartment is a studio apartment, with no separate rooms other than a bathroom.
Shortly after he arrived, Timothy saw both appellant and K.B. in the bathroom with
the victim, who was naked. He saw K.B. have sex with the victim on the bathroom floor.
After K.B. finished, he saw appellant have sex with the victim on the bathroom floor. Then,
Timothy saw appellant take the victim to the couch in the living-room area where appellant
again had sex with the victim. When appella nt was finished, K.B. tried to have anal
intercourse with the victim. After that, Timothy had vaginal intercourse with the victim on
the floor of the apartment at the urging of K.B.
Timothy stated that he spent the night at the apartment. The next morning, two
Somali men who knew K.B. came to the apartment and took the victim somewhere else.
They later brought the victim back to the apartment. Shortly thereafter, K.B. and appellant
left the apartment. Before they left, K.B. told Timothy not to let the victim leave. Timothy
reported that the victim was naked while in the apartment because her clothes were hidden
under Dexter’s bed. Timothy gave the victim her clothes and let her leave.

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Timothy also told the police that he did not see Dexter have sex with the victim but
that K.B. told him that Dexter had done so before Timothy a rrived. Timothy stated that
appellant, K.B., and Dexter were all angry with him for letting the victim leave the
apartment. Timothy stated that he let the victim leave because “nobody deserves that.”
After Timothy’s statement, an investig ator called appellant and requested a
voluntary DNA sample. On the call, appellant acknowledged being in the apartment with
Dexter and K.B. while the victim was there, and that Timothy later came over to the
apartment. Appellant denied having sex with the victim. A nd he could not recall if K.B.
had sex with the victim. Appellant also told th e investigator that he left at one point to
smoke marijuana with a friend who lived upstairs in the same apartment building. When
he returned, he saw the victim lying in the be d with Dexter. The vic tim said that Dexter
told her not to move out of the bed. Late r, after Timothy arrived, he heard K.B. urge
Timothy to have sex with the victim becau se it was Timothy’s birthday. Appellant
admitted that he gave Timothy a condom, but stated that he did not see Timothy having
sex with the victim because he “went to the store across the street.” He also remembered
the victim walking around the apartment naked and claimed that, at one point, she grabbed
his penis through his pants. According to ap pellant, the victim was in the apartment with
the men for two days. He claimed that he di d not see anyone have sex with the victim
during that two-day period. Ultimately, appellant agreed to provide a DNA sample.
DNA Evidence
The samples taken from the victim’s body and clothing included: (1) vaginal,
(2) perineal, (3) rectal, (4) jeans-sperm, and (5) jeans non-sperm. Forensic testing revealed

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that semen and seminal fluid were present on the vaginal, perineal, and rectal swabs, as
well as on the victim’s jeans. DNA mixtures were found on each of these items. Dexter’s
DNA profile matched predominate male DNA profiles of the mixtures found on the vaginal
and perineal swabs. For the rectal swab, analysts identified a DNA mixture of two or more
individuals. Timothy’s DNA profile matched a predominate male DNA profile found on
the rectal swab. And appellant could not be excluded from being a possible contributor to
a minor-type DNA profile found on the rectal swab. But, it was estimated that 99.9992%
of the general population could be excluded from being a contributor to that DNA mixture.
Appellant also could not be excluded from being a possible contributor to the DNA mixture
found on the jeans-sperm sample. Similarly, it was estimated that 99.91% of the general
population could be excluded from being a contributor to the jeans-sperm sample.
On June 28, 2018, the state charged appellant with two counts of aiding and abetting
first-degree criminal sexual conduct under Minn. Stat. § 609.342, subd. 1 (2010).
Trial and Sentencing
Appellant waived his right to a jury tria l and proceeded with a stipulated-evidence
trial. The stipulated evidence include d: the police reports; the SARS report and
accompanying photographs; DNA test results; and transcripts and recordings of interviews
with the victim, Timothy, and appellant. The district court reviewed all of the evidence
and written arguments. The district court later issued written findings of fact, conclusions
of law, and an order findi ng appellant guilty of both counts of aiding and abetting
first-degree criminal sexual conduct. The district court sentenced appellant to concurrent

8
executed terms of 70 months’ imprisonmen t for both counts and imposed a lifetime
conditional release for count two.
This appeal follows.
D E C I S I O N
Appellant argues that both of his convictions should be vacated because Timothy’s
accomplice statement is uncorrobora ted. Alternatively, appellant argues that the district
court erred when it convicted him of two counts of aiding and abetting first-degree criminal
sexual conduct, rather than one count, because both counts were based on the same
conduct. He also argues that the district court erred when it sent enced him to lifetime
conditional release on count two. Finally, appellant raises a number of issues in his pro se
brief. We address each issue in turn.
I. The accomplice statement is sufficiently corroborated.

Appellant argues that both of his aiding and abetting fi rst-degree criminal sexual
conduct convictions should be vacated because there is insufficient evidence to corroborate
Timothy’s accomplice statement.
In Minnesota, “a criminal conviction ca nnot be based on the uncorroborated
testimony of an accomplice.” State v. Clark, 755 N.W.2d 241, 251 (Minn. 2008); see also
Minn. Stat. § 634.04 (2010) (“A conviction cannot be had upon the testimony of an
accomplice, unless it is corroborated by such other evidence as tends to convict the
defendant of the commission of the offense, and the corroboratio n is not sufficient if it
merely shows the commission of the offense or the circumstances thereof.”).

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To determine whether an accomplice’s te stimony is sufficiently corroborated, we
consider, among other factors,
participation in the preparation for the criminal act;
opportunity and motive; proximity of the defendant to the place
where the crime was committed under unusual circumstances;
and association with persons involved in the crime in such a
way as to suggest joint participation.

State v. Smith, 932 N.W.2d 257, 264 (M inn. 2019) (quotation om itted). We “review the
evidence just as we would on a sufficiency challenge—in the light most favorable to the
prosecution, and with all conflicts in the ev idence resolved in favor of the verdict.”
State v. Nelson, 632 N.W.2d 193, 202 (Minn. 2001); see also Smith, 932 N.W.2d at 264;
State v. Chavarria-Cruz , 839 N.W.2d 515, 519 (Minn. 2013). If the defendant’s
“connection to the crime may be fairly inferred from those circumstances, the corroboration
is sufficient.” State v. Pederson , 614 N.W.2d 724, 732 (Minn. 2000) (quoting
State v. Adams, 295 N.W.2d 527, 533 (Minn. 1980)).
Here, the state charged appellant with two counts of aiding and abetting first-degree
criminal sexual conduct. See Minn. Stat. §§ 609.342, subd. 1 (defining first-degree
criminal sexual conduct), .05, subd. 1 (2010) (“ 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 co mmit the crime.”). One count alleged that
appellant aided and abetted the penetration of the victim through the use of force or
coercion, causing injury to the victim. See Minn. Stat. § 609.342, subd. 1(e)(i). The other
count alleged that appellant aided and abetted the penetration of the victim in a manner that
caused the victim fear of great bodily harm. See Minn. Stat. § 609.342, subd. 1(c).

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Accordingly, the accomplice statement and corroborating evidence must connect appellant
to these crimes. Pederson, 614 N.W.2d at 732. But ac complice testimony need not be
corroborated for each individual element of the crime. State v. Her, 668 N.W.2d 924, 927
(Minn. App. 2003), review denied (Minn. Dec. 16, 2003). Th e corroborating evidence is
sufficient if it restores confidence in the truth of the accomplice’s testimony and points to
the defendant’s guilt in some substantial degree. Staunton v. State, 784 N.W.2d 289, 297
(Minn. 2010) (noting that “the corroborating evidence need only link the defendant to the
crime in some substantial degree that tend s to affirm the truth of the accomplice’s
testimony and to point to the guilt of the defendant” (quotation omitted)).
Appellant argues that there is insuffici ent corroborating evidence because the
“corroboration of Timothy’s statement was minimal.” The state argues that the
corroborating evidence is sufficient. We agree with the state.
We conclude that the accomplice statemen t is sufficiently co rroborated for three
reasons. First, appellant’s own statements corroborate Timothy’s accomplice statement.
See Her , 668 N.W.2d at 927 (noting that admissi ons in a defendant’s testimony may
corroborate an accomplice’s test imony). Appellant admitted to police that he was at
Dexter’s studio apartment with Dexter, K.B., and Timothy while the victim was present.
Appellant also stated that he saw the victim in bed with Dexter and that the victim said that
Dexter told her not to leave the bed. And appellant adm itted that he gave Timothy a
condom. Each of these statements support that appellant was at the place the crime was
committed and that he had an opportunity to participate. Smith, 932 N.W.2d at 264.

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Second, the victim’s statements to the SARS nurse and to th e police corroborate
Timothy’s accomplice statement. The victim stated that four men—whom she believed
were all related—“were all sexual with me” and “they pulled the skin in my vagina.” And
the victim stated that “they sa id they were going to kill me.” She also reported that they
hid her clothes and held her in the apartment against her will until one of the men eventually
let her go. These statements by the victim are consistent with Timothy’s statement that all
four men had sex with the victim, that the victim’s clothes were hidden from her, and that
the victim was not allowed to leave until Timothy let her go. And the SARS report
confirmed that the victim had injuries in cluding significant bruising on her body and
internal abrasions in her vaginal area. The victim also said she thought one of the men was
named “Danny,” which corroborates Timothy’ s statement that appellant was present and
an active participant in the criminal activity.
Third, the DNA evidence corroborates Timothy’s statement. Several samples were
taken from the victim as part of the investigation and tested for DNA. Analysis of the DNA
mixture found on the vaginal and perineal swabs confirmed that Dexter participated in the
sexual assaults. And analysis of the DNA mixture found on the rectal swab confirmed that
Timothy participated in the sexual assaults. Finally, analysis of the DNA mixtures found
on the rectal and jeans-sperm swabs indicated that appellant’s DNA profile could not be
excluded as a contributor to those mixtures.
Viewing the evidence in the light most favorable to the prosecution, as we are
required to do, we conclude that the evid ence is sufficient to corroborate Timothy’s
accomplice testimony because it indicates that appellant was present and was associated

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with the persons involved in th e crimes in such a way as to suggest his participation.
Accordingly, because the acco mplice testimony is sufficiently corroborated to convict
appellant, we affirm the district court’s findings of guilt.
II. The district court improperly convicted appellant of two counts of aiding and
abetting first-degree criminal sexual conduct based on the same course of
conduct.

Appellant next argues that the district court erred by co nvicting him of, and
imposing sentences for, two counts of aiding and abetting first-degree criminal sexual
conduct. Appellant maintains that the complaint, the state’s case to the district court, and
the district court’s verdict show that both co nvictions arose out of the same course of
conduct. As a result, he contends that the district court violated Minn. Stat. § 609.04
(2010)
2 by convicting him of both counts. We agree.
Minnesota Statutes section 609.04 has been interpreted to bar “multiple convictions
under different sections of a criminal statute for acts committed during a single behavioral
incident.” State v. Jackson, 363 N.W.2d 758, 760 (Minn. 1985). But, “the protections of
section 609.04 will not apply if the offenses constitute separate criminal acts.”
State v. Bertsch, 707 N.W.2d 660, 664 (M inn. 2006). “The inquiry into whether two
offenses are separate criminal acts is analogous to an inquiry into whether multiple offenses

2 We note that appellant cite s Minn. Stat. § 609.03 5 (2010) in his brief. However, we
understand appellant’s argument to be grounded in section 609.04 based on his reliance on
State v. Eppler , 362 N.W.2d 315 (Minn. 1985), and his request to vacate one of the
convictions. See State v. Hannuksela, 452 N.W.2d 668, 673 n.7 (Minn. 1990) (noting that
appellate courts have a respon sibility “to decide cases in ac cordance with law, and that
responsibility is not to be diluted” by a failu re to cite relevant authority (quotation
omitted)).

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constituted a single behavi oral incident under Mi nn. Stat. § 609.035.” Id. Determining
whether two intentional crim es are part of a single be havioral incident requires
consideration of the time and place of the crimes and whether the criminal conduct was
motivated by a single criminal objective. State v. Bauer , 792 N.W.2d 825, 828
(Minn. 2011). The state has the burden of prov ing that crimes were not part of a single
behavioral incident. State v. Zuehlke , 320 N.W.2d 79, 82 (Minn. 1982). “Whether a
defendant’s offenses occurred as part of a single course of conduct is a mixed question of
law and fact.” State v. Jones, 848 N.W.2d 528, 533 (Minn. 2014). We review the district
court’s finding of fact under a clearly erroneous standard, and its application of the law to
those facts de novo. Id.
Here, appellant was convicted of two count s of aiding and abetting first-degree
criminal sexual conduct—one count under Minn . Stat. § 609.342, subd. 1(c) (penetration
with fear of great bodily harm) and one count under Minn. Stat. § 60 9.342, subd. 1(e)(i)
(penetration with force or coercion and personal injury to the victim). Both crimes arise
under the same criminal statute. And the district court’s findings regarding the sexual
penetration involved in both crimes is virtually identical.
Notwithstanding the district court’s finding s, the state argues for the first time on
appeal that appellant committed two separate criminal acts. The state relies on our analysis
in State v. Barthman , 917 N.W.2d 119, 129 (Minn. App. 2018), aff’d, 938 N.W.2d 257
(Minn. 2020). In Barthman, the state charged the defendan t with six counts of sexually
abusing his daughter for incidents that o ccurred over a period of three years. Id. at 124.
Barthman asserted that the state failed to show that two of the counts were not committed

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as part of a single behavioral incident. Id. at 128-29. We disagreed and concluded that the
victim described two distinct offenses that occurred at different times. Id. at 129. The
supreme court granted review, and affirmed , determining that the complaint and the
complainant described separate incidents occurring at separate times. Barthman,
938 N.W.2d at 267. The state argues that th is case is similar be cause Timothy described
two incidents in his statement—a couch incide nt and a bathroom in cident. We are not
persuaded.
Here, unlike in Barthman, the complaint did not allege or distinguish separate acts
for each of the two criminal-se xual-conduct charges. The dist rict court’s findings of fact
and conclusions of law also do not identify separate acts as the basis of the two guilty
verdicts. Instead, the district court relied on the same factual basis to find appellant guilty
of both counts of criminal sexual conduct. Consistent with the state’s position below, the
district court’s findings of fact and conclusi ons of law describe a continuous course of
conduct. As appellant points out, the district court’s order reflects two alternative means
of aiding and abetting the same first-degree cr iminal sexual conduct crime. Therefore,
because the district court did not find separate acts of crim inal sexual conduct to support
separate convictions, appellant was improperly convicted twice under different sections of
the same statute for acts committed during a single behavioral incident and only one
conviction can stand. Accordingly, we reve rse and remand to vacate one of appellant’s

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convictions.3 See Jackson, 363 N.W.2d at 760 (reversing to vacate a conviction where
defendant was convicted of multiple offenses under the same statute for acts committed
during a single behavioral incident).
III. Pro se brief.
Appellant also submitted a pr o se supplemental brief in which he argues (1) that
evidence was mishandled , insufficient, and not credible ; (2) that the victim was not
credible; and (3) that he received ineffective assistance of counsel. Appellant does not cite
to authority and provides no further argument to support these assertions.
An assignment of error in a brief not supported by argument or authority is waived
unless prejudicial error is obvious on mere inspection. State v. Andersen, 871 N.W.2d 910,
915 (Minn. 2015). Because no prejudicial error is obvious on mere inspection, we conclude
that appellant has waived these arguments.
With regard to appellant’s argument that he received ineffective assistance of
counsel, we also note that the record has not been sufficiently developed for review by this
court. “Generally, an [ineffective-assistan ce-of-counsel] claim shou ld be raised in a
postconviction petition for relief, rath er than on direct appeal.” State v. Gustafson ,
610 N.W.2d 314, 321 (Minn. 2000). “A post conviction hearing prov ides the court with
additional facts to explain the attorney’s deci sions, so as to properl y consider whether a
defense counsel’s performance was deficient.” Id. (quotation omitted). Without those

3 Because we reverse one of appellant’s convic tions, it is clear that appellant should only
be sentenced to 10 years of conditional release and we do not reach the issue of the lifetime
conditional release. Minn. Stat. § 609.3455, subd. 6 (2010).

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additional facts, “any conclusions reached by [an appellate] court as to whether [an]
attorney’s assistance was deficient would be pure speculation . . . .” Id. But an appellate
court may consider an ineffective-assistance-of-counsel claim on direct appeal if it can be
decided on the trial record. Torres v. State, 688 N.W.2d 569, 572 (Minn. 2004).
Here, appellant argues that his attorney wa s ineffective because he conspired with
the state, used illegal drugs, and failed to retu rn payments made to hi m after being fired.
Given the record developed at trial, we cannot review any of appellant’s claims. There is
no evidence in the reco rd that appellant’s attorney cons pired with the state, used illegal
drugs, or failed to return money. As a result, if we were to review appellant’s claims it
would be “pure speculation.” Gustafson, 610 N.W.2d at 321. Because further
development of the record is required, we cannot decide appellant’s ineffective assistance
claim, but appellant may pursue that ar gument in postconviction proceedings. See
Leake v. State, 737 N.W.2d 531, 535-36 (Minn. 2007).
Affirmed in part, reversed in part, and remanded.