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This opinion will be unpublished and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
A19-1513

State of Minnesota,
Respondent,

vs.

John Evans,
Appellant.

Filed August 17, 2020
Affirmed in part, reversed in part, and remanded
Jesson, Judge

Steele County District Court
File No. 74-CR-19-64

Keith Ellison, Attorney Genera l, Peter Magnuson, Assistant Attorney General, St. Paul,
Minnesota; and

Dan McIntosh, Steele County Attorney, Owatonna, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appe llate Public Defender, Chang Y. Lau, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Worke, Presiding Judge; Jesson, Judge; and
Schellhas, 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
JESSON, Judge
After being convicted of first-degree witness tampering base d on a threatening
phone call to his ex-wife, appellant John Evans challenges both his conviction and
sentence. He argues that the state’s evidence was insufficient to prove the charge and that
his criminal-history score wa s incorrectly calculated. B ecause the state’s evidence was
sufficient to prove that Evans committed first-degree witness tampering, we affirm in part.
But because the state failed to prove that his criminal-history score was correct, we reverse
Evans’s sentence and remand for resentencing.
FACTS
Appellant John Evans and A.E. married in 2013 and had one child together. About
two years into their marriage, Evans began abusing A.E. A.E. described the abuse at trial,
including an incident where Evans choked her while she was on the phone and then coerced
her to hide from the police when they came to investigate. She also described how Evans
slammed her head against a car window, gra phically threatened to kill her, and punched,
hit, and choked her regularly. Evans’s abus e of A.E. led to at least two criminal
convictions.1
In 2016, A.E. successfully moved to vaca te an order for protection (OFP) against
Evans because he promised to stop the abuse, and she wanted to work on their marriage.

1 At trial, Evans stipulated to two 2017 Goodhue County convictions for threats of violence.

3
But the abuse continued, and the two separated. 2 A.E. was granted a new 50-year OFP
against Evans, which was later amended to add A.E.’s children.
In August 2018, A.E. began a new job at a hotel in Owatonna, Minnesota. Due to
this change, she filed a request to modify th e OFP to include her updated home and work
addresses. Shortly before the scheduled OF P-modification hearing, A.E. noticed Evans
sitting in his tan Ford Explorer in the Target parking lot ad jacent to the hotel where she
worked. She reco gnized the Explorer as Evans’s from the license plate number and
distinctive damage to the keyless entry system.
A.E. called 911. An officer called her back and asked her questions about her report,
but he was unable to respond immediately to the hotel. A.E. also called some friends, but
they were out of town. She did not want to alert her sole coworker or any hotel guests, so
she tried to stay out of sight and continue her work.
About 30 minutes after A.E. first saw Ev ans’s Explorer, she received a series of
phone calls from an un known caller. When sh e answered the first call, she immediately
recognized the caller’s voice. It was Evans’s. During the ca ll, Evans told A.E. that, “if
[she] showed up for court, [she] wouldn’t live to regret it.” Evans may have said, in the
alternative, that A.E. “would live to regret it.” A.E. did not understand the figure of speech
but understood that “it was some kind of threat.” She told him that she was going to go to
court. In a second phone call, about a minute later, Evans told A.E. to not show up for

2 At the time of trial, the co uple’s marital dissolution was pending. But at the sentencing
hearing, counsel for Evans noted that their divorce had been finalized.

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court or something would happen. A.E. received four more calls from an unknown caller
that she did not answer. A.E. called 911 again.
Nearly an hour after Evans called her, police arrived. A.E. described the phone calls
and what Evans told her. Police took photos of A.E.’s cell phone call log that showed the
time and duration of the calls.
The state charged Evans with two crimin al offenses: (1) violating an OFP and
(2) first-degree witness tamper ing. During a two-day court trial, the state provided
testimony from four witnesses. First, a police sergeant testified that he had served Evans
with copies of the OFP and a subsequent m odification, which were admitted into the
record.
Next, A.E. testified.3 She recounted her history with Evans and what happened the
day Evans parked near the hotel and called her. Her testimony was consistent with the
facts described earlier. The state admitted the recording of her first 911 call into evidence.
During her testimony, A.E. admitted that she was having trouble remembering
whether Evans said she would or would not live to “regret it” wh en he called her. On
cross-examination, defense counsel highlighted this inconsistency. A.E. agreed that she
could not remember which version Evans said.

3 In her testimony, A.E. acknowl edged that she had a criminal record consisting of five
felonies, including crimes of dishonesty. These crimes generally occurred from
2013-2017. A.E. was using methamphetami ne during some of this period, which
contributed to her criminal conduct. A.E. eventually served prison time and was released
in early 2018. At the time of the trial, A.E. testified that she no longer uses
methamphetamine.

5
Next, the officer who responded to A.E.’s call at the hotel testified. Consistent with
the earlier facts, the officer described his ph one conversation with A.E. (after her first
911 call) and what happened once he arrived at the hotel. The officer confirmed that A.E.
initially told him that Evans said that if she showed up to court, she would live to regret it.
And then later, he recalled that A.E. stated th at Evans told her that if she showed up to
court, she would not live to regret it. The officer r ecounted how A.E. told him that she
could not remember exactly which version Evans had said.4 After the trial concluded, the
court issued a written order finding Evans guilty of both offenses.
At sentencing, the parties discussed Evans’s criminal-history-score calculation. The
state provided two sentencing worksheets, one for each count. The worksheet provided for
the OFP violation (count one) indicated a criminal-history score of six. And the worksheet
for the witness-tampering offense (count two) reflected a criminal-history score of seven,
anticipating the felony convicti on for the OFP violation (count one). But the sentencing
court found that the OFP violation was a le sser-included offense and that the offenses
occurred as part of the same course of conduct, so it would enter a conviction for only the

4 The assistant jail administrator was the state’s final witness. He described how inmates—
like Evans—may make phone calls while in the jail. He further described how he located
an audio recording of a phone call that Evans made to another woman while he was in jail.
The state admitted an audio recording of the phone call and a photo of Evans using the jail
phone.
During the phone call, Evans talked about A.E.’s allegations. Generally, he
appeared to recount an alibi: he was with the call recipient and not in Owatonna at A.E.’s
place of work when A.E. accused him of being there. But the caller disagreed and recalled
that Evans was not with her until later that evening. Evans appeared to become frustrated
and upset that the caller disagreed with him and cursed at her.

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more serious charge—witness tampering. By doing that, the criminal-history score on the
sentencing worksheet for the witness-tampering offense would be reduced to six.
The parties also disagreed about whether Evans’s crim inal-history score should
include one-half point from a controlled-subs tance conviction. After reviewing the
relevant records, the court fo und that the state met its burden and that the half point was
properly included in Evans’s criminal-history score.
Based on a criminal-history score of six, the state recommended a 48-month
sentence, and defense counsel argued for a sentence at the low end of the range, 41 months.
Agreeing with the state, the court sentenced Evans to 48 months in prison for first-degree
witness tampering.5 Evans appeals.
D E C I S I O N
I. Sufficient evidence supports Ev ans’s first-degree witness tampering
conviction.

First, according to Evans, the evidence the state presented was insufficient to prove
that he committed first-degree witness tampering. He argues that his statements to A.E.—
if she showed up to court, she would (or woul d not) live to regret it—are not necessarily
threats of injury. First, we address the standards of revi ew for challenge s to evidence
sufficiency and convictions based on circum stantial evidence. Th en, we review the
substantive offense at issue here and apply the law to the facts. Finally, we address Evans’s
arguments.

5 The district court did not adjudicate Evans guilty of violating the OFP (count one). Nor
did it impose a sentence on that count.

7
We turn first to our standards of review. In our review of the sufficiency of the
evidence, we “carefully exam ine the record to determin e whether the facts and the
legitimate inferences drawn from them woul d permit the [fact-fi nder] to reasonably
conclude that the defendant was guilty” of first-degree witness tampering. State v. Griffin,
887 N.W.2d 257, 263 (Minn. 2016) (quotation omitted). The evidence is viewed in the
light most favorable to the verdict. Bernhardt v. State, 684 N.W.2d 465, 477 (Minn. 2004).
And we assume that the fact-finder “believe d the state’s witnesses and disbelieved any
evidence to the contrary.” State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989). Ultimately,
the district court’s “verdict will not be overturned if the fact-finder, upon application of the
presumption of innocence and the [s]tat e’s burden of proving an offense beyond a
reasonable doubt, could reasonably have found the defendant guilty.” Griffin, 887 N.W.2d
at 263. While Evans’s conviction was the resu lt of a court trial and not a jury trial, the
same standard of review applies. See State v. Palmer, 803 N.W.2d 727, 733 (Minn. 2011)
(noting that courts “use the same standard of review in bench trials and in jury trials in
evaluating the sufficiency of the evidence”).
Here, Evans challenges the state’s proof of his intent. Intent may be shown through
circumstantial evidence. Davis v. State , 595 N.W.2d 520, 525 (Minn. 1999).
Circumstantial evidence requires the fact-finder to make an inference about whether the
facts in dispute existed. State v. Harris, 895 N.W.2d 592, 599 (Minn. 2017). The parties
agree that the circumstantial-evidence standard of review is appropriate here.
When reviewing the sufficiency of circum stantial evidence, we conduct a two-step
analysis. State v. Silvernail , 831 N.W.2d 594, 598 (Minn. 20 13). “The first step is to

8
identify the circumstances proved.” Id. In the second step, this court “determine[s]
whether the circumstances proved are consis tent with guilt and inconsistent with any
rational hypothesis except that of guilt.” Id. at 599 (quotations omitted).
To obtain a convictio n of first-degree witness tampering, the state must prove that
Evans “intentionally prevent[ed] or dissuade[ed] or intentionally attempt[ed] to prevent or
dissuade by means of force or threats of injury to any person or property, a person who is
or may become a witness from at tending or testifying at any tr ial, proceeding, or inquiry
authorized by law.” Minn. Stat. § 609.498, subd. 1(a) (2018). Evans does not contest that
A.E. was a potential witness at the upcoming OFP-modifica tion hearing. His argument
instead focuses on whether the state proved that he intentionally attempted to prevent A.E.
from attending the hearing by using threats of injury. See id.
With the relevant statutory requirements fo r the offense in mind, we return to the
circumstantial-evidence review framework. In this framework, “[t]he first step is to
identify the circumstances proved.” Silvernail, 831 N.W.2d at 598. At this stage, we defer
to the fact-finder’s “acceptance of the proof of these circumstances and rejection of
evidence in the record that conflicted with the circumst ances proved by the [s]tate.” 6 Id.
at 598-99 (quotations omitted).

6 Even though we assume the fact-finder credited the circumst ances proved by the state,
the district court here made explicit credibility determinations. Several times in its written
order, it found A.E.’s testimony credible despite her criminal history, which is also a part
of the trial record. We generally give deference to a district court’s credibility
determinations. State v. Dickerson, 481 N.W.2d 840, 843 (Minn. 1992).

9
The circumstances proved implicating Evans in witness tampering with A.E. are as
follows. Evans and A.E. were married. Evans had a history of physically abusing A.E.
While she was working at a hotel, A.E. saw Evans park in an adjacent lot. A.E. called the
police to report Evans for viola ting the OFP. A short time la ter, Evans called A.E.’s cell
phone at least twice. During the phone calls, Evans told A.E. that if she appeared in court,
she would (or would not) live to regret it. A.E. did not understand the phrase, but she
understood that it was a threat.
Next, we determine whether these proved circumstances “are consistent with guilt
and inconsistent with any rational hypothesis except that of guilt.” Silvernail, 831 N.W.2d
at 599 (quotations omitted). And “we do not review eac h circumstance proved in
isolation,” but review the circumstances as a whole. State v. Hawes, 801 N.W.2d 659, 669
(Minn. 2011). No deference is given “to the fact-finder’s choice between reasonable
inferences.” Id.
We are satisfied that the only rational hypothesis based on the proved circumstances
is that Evans intended his conduct to try to dissuade A.E. from appearing at the upcoming
OFP hearing. His statement to her implied th at she should not go to the hearing, or she
would regret it. In reviewin g the record, the history of a buse and the circumstances of
Evans’s conduct are particularly relevant. See Davis, 595 N.W.2d at 525-26 (noting that
intent may be shown through conduct or the character of conduct, or inferred from events
before and after the conduct). Evans’s physical presence while parked near A.E.’s place
of work was likely aimed at intimidating her, as Evans had done in previous domestic
incidents. And his ve rbal ultimatum—that if she appeared in court, she would (or would

10
not) live to regret it—was an implicit threat to A.E.’s life or, at least, her safety. Thus, the
state provided sufficient evidence for the fact-finder to conclude beyond a reasonable doubt
that Evans was guilty of first-degree witness tampering.
Still, Evans argues that the evidence was insufficient to show that he intended his
words to be a threat to A.E.’s physical safety. First, he suggests a variety of alternative
hypotheses relating to what he could have me ant by the statement that A.E. would live to
regret it if she appeared in court. 7 In short, he suggests th at he was implying something
other than a threat of injury to A.E. For example, he pos its that he could have been
implying that he would disclose personal information about A.E. if she appeared in court,
thus making her regret attending. Perhaps he meant that he would take legal action against
A.E., stop paying her child support, or that by appearing in court, she “would further
damage, perhaps irreparably, the pair’s rela tionship.” In essence, Evans argues that
because the conclusion that he intended his words as a threat to A.E.’s physical safety is
not the only conclusion here, his conviction cannot be upheld.
But Evans’s argument misapp lies the test, which seeks to identify alternative
rational or reasonable hypotheses. Suggestions not suppor ted by evidence in the record
or rooted purely in speculation, like those Evans offers, are neither rational nor reasonable
hypotheses. See State v. Tscheu , 758 N.W.2d 849, 858 (M inn. 2008) (requiring the
defendant to “point to evidence in the record that is consistent with a rational theory other

7 In his brief, Evans seemingly concedes that if his statement was that A.E. would not live
to regret it, it was an implicit death threat. He focuses his arguments on the possibility that
Evans said that A.E. would live to regret it and whether that phrase constituted a threat to
her physical safety.

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than guilt,” and explaining that he may not rely on “mere conjecture”). There is no
evidence in the record that Evans was intending to st op paying child support, release
personal information, or sue A.E. And his suggestion that A.E. appearing in court to
modify her addresses on the existing 50-year OFP would somehow “irreparably” damage
their relationship is unlikely. The record sh ows that the parties had little or no existing
relationship at the time of this incident. Because Evans’s offered hypotheses are purely
speculative and have no support in the record, they are not rational or reasonable alternative
hypotheses that render the st ate’s evidence insufficient. See State v. Andersen ,
784 N.W.2d 320, 330 (Minn. 2010) (“The [s]t ate does not have the burden of removing
all doubt, but of removing all reasonable doubt.”).
Evans also contends that the plain meani ng of the phrase “live to regret” does not
necessarily imply a threat of physical harm. Relying on the dictio nary definition, Evans
suggests the idiom itself has an innocuous meaning about being “disappointed” or “feeling
sorry” in the future. But cont ext matters. And here, the c ontext includes Evans’s history
of domestic incidents with A.E. See State v. Franks , 765 N.W.2d 68, 75 (Minn. 2009)
(noting that “it is proper to view a defend ant’s words and acts in the context of the
defendant’s relationship with the victim, incl uding evidence of past crimes against the
victim,” and doing so in a cas e involving domestic violence). Considering the context of
this statement with the parties’ relationship and history, Evans’s statement is less innocent
than he attempts to frame it here.8

8 Evans also attempts to cast doubt on A.E.’s account by pointing out the inconsistencies
in her testimony and statements to the police about what Evans said on the phone—whether

12
Finally, Evans asserts that he did not intend his statements to A.E. as threats of
injury. Witness tampering is an offense that requires “specific intent.” State v. Collins ,
580 N.W.2d 36, 44 (Minn. App. 1998), review denied (Minn. July 16, 1998). This means
that the offense “requires an intent to cause a particular result.” State v. Wilson ,
830 N.W.2d 849, 853 (Minn. 2013) (quotations omitted); see also Minn. Stat. § 609.02,
subd. 9(3) (2018) (“‘Intentionally’ means that the actor either has a purpose to do the thing
or cause the result specified or believes that the act performed by th e actor, if successful,
will cause that result.”). Courts generally “infer that a person intends the natural and
probable consequences of his actions.” Collins, 580 N.W.2d at 44 (quotation omitted).
Here, the statute requires that a person c onvicted of first-degree witness tampering
“intentionally” attempt to prevent, “by means of force or threats of injury,” someone “who
is or may become a witness from attending or testifying at” a hearing. Minn.
Stat. § 609.498, subd. 1(a). Under a plain read ing of the statute, the crux of the crime is
that the actor intentionally tried to prev ent someone from attending court—that is the
particular intended result. The result is not a threat of injury, as Evans asserts. Moreover,
A.E. perceived it as a threat, which is further evidence of Evans’s intent. See
State v. Schweppe, 237 N.W.2d 609, 614 (Minn. 1975) (concluding that a victim’s reaction

he said that she would or would not live to regret appearing at court. But the district court
specifically found portions of her testimony credible, a dete rmination to which we give
deference. See Dickerson, 481 N.W.2d at 843. Moreover, “[i]nconsistencies in testimony
and conflicts in evidence do not automatically render the testimony and evidence false and
are not bases for reversal, especially when the victim is recounting a traumatic or stressful
event.” In re Welfare of T.N.Y. , 632 N.W.2d 765, 769 (Min n. App. 2001) (quotation
omitted).

13
to a threat was circumstantial evidence relevant to the intent element of a terroristic-threats
charge).
In sum, the state’s evid ence is sufficient to supp ort Evans’s conviction of
first-degree witness tampering. The circumstances proved are solely consistent with guilt
and do not point to any rational or reasonable alternative hypothesis inconsistent with guilt.
Thus, the district court did not err by determining that the state met its burden of proof.
II. The district court erred by calculat ing Evans’s criminal-history score.
Evans also contends that the district court erred with regard to his criminal-history
score. Specifically, Evans ar gues that the state failed to prove that his 2017 convictions
for threats of violence and witness tamper ing did not arise from a single behavioral
incident. While the parties disputed seve ral items in the sent encing worksheets, as
described earlier, Evans’s challenge to his crimin al-history score in th is appeal is one he
did not raise to the district c ourt. But he did not waive re view of this issue because a
sentence based on an incorrect score is an illegal sentence. See State v. Maurstad ,
733 N.W.2d 141, 147 (Minn. 2007). The state agrees—as do we—that remand is necessary
to provide the state an opportunity to develop the record for the 2017 convictions.
Generally, district courts have wide discretion to impose sentences. State v. Soto,
855 N.W.2d 303, 307 (Minn. 2014). We will not reverse a court’s sentence absent an abuse
of its discretion. Id. at 307-08. The state bears the burden of proof at sentencing to
demonstrate that a defendant’s prior conviction should be included in his criminal-history
score. Williams v. State, 910 N.W.2d 736, 740 (Minn. 2018).

14
Evans contends that his two prior conv ictions in 2017 may derive from a single
behavioral incident, which may mean that they both should not be included in his score.
Determining “[w]hether the offenses were part of a single behavioral incident is a mixed
question of law and fact,” in which we review questions of legal application de novo and
findings of fact for clear error. State v. Bakken, 883 N.W.2d 264, 270 (Minn. 2016). When
multiple sentences were imposed based on a si ngle course of conduct, a sentencing court
is to include only the weight from the most severe offense when calculating a defendant’s
criminal-history score. See Minn. Sent. Guidelines 2.B.1.d.(1) (2018); see, e.g. ,
State v. Barthman, 938 N.W.2d 257, 265-67 (Minn. 2020) (analyzing whether two offenses
were part of the same behavioral incident).
Here, the record is unclear about whether th e prior offenses were part of the same
behavioral incident.9 The district court accepted the sentencing worksheet provided by the
state and sentenced Evans based on a criminal-h istory score of six. That score included
one point for witness tampering and one point for terroristic threats, both offenses with the
same disposition date, July 14, 2017. The onl y information about these offenses in the
record indicates that they share an offense date and sentenci ng date. The record contains
no other information relevant to this question. There exists a fair possibility that these two
offenses arose out of the same incident and therefore should not both be included in Evans’s
score. Therefore, the state failed to meet its burden in this respect.

9 Because Evans did not object to his score on this basis at sentencing, the state did not
have an opportunity to meet its burden to prove the offenses were properly included in the
criminal-history score.

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Accordingly, we conclude that revers ing Evans’s sentence and remanding is
necessary for the state to develop the record. See State v. Outlaw , 748 N.W.2d 349, 356
(Minn. App. 2008) (concluding that if the state’s evidence is insufficient to carry its burden
of proof as to the defendant’s criminal-history score, the proper remedy was to remand the
matter for an opportunity for the state “to further develop the sentencing record so that the
district court can appropriately make its determination.”), review denied (Minn. July 15,
2008); see also State v. Provost , 901 N.W.2d 199, 202 (Minn. App. 2017) (holding that
when a defendant’s sentence is based on an inco rrect criminal-history score, the district
court must resentence him). Remand is the reque st of the parties and is appropriate as a
matter of law.
Affirmed in part, reversed in part, and remanded.