State of Minnesota, Respondent,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd.1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A19-1625

State of Minnesota,
Respondent,

vs.

Davion Lee Jones,
Appellant.

Filed January 4, 2021
Affirmed
Bratvold, Judge

Washington County District Court
File No. 82-CR-18-1220

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

Pete Orput, Washington County Attorney, Nicholas A. Hy dukovich, Assistant County
Attorney, Stillwater, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Rachel F. Bond, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Worke, Pres iding Judge; Reilly, Ju dge; and Bratvold,
Judge.
NONPRECEDENTIAL OPINION
BRATVOLD, Judge
In this appeal following the final judgments of conviction for drive-by shooting and
first-degree assault, appellant argues that (1) the district court erred by refusing to instruct

2
the jury that a witness, Z.S ., was an accomplice as a matter of law; (2) the evidence is
insufficient to sustain the convictions because the accomplice testimony was
uncorroborated; (3) the district court abused its discretion by admitting videos of appellant
with firearms as Spreigl evidence; and (4) the district court erred by sentencing appellant
twice for a single behavioral incident. Because the record evidence conflicted as to whether
Z.S. was an accomplice, the district court did not abuse its discretion by instructing the jury
on accomplice corroboration. We also determ ine that the record evidence sufficiently
corroborated the accomplice testimony and sust ained appellant’s conviction, and the
district court did not abuse its di scretion by admitting the videos as Spreigl evidence or
imposing two sentences for the drive-by shooting and assault. We therefore affirm.
FACTS
The following summarizes th e evidence presented at appellant Davion Lee Jones’s
jury trial, which we view in a light favorable to the jury verdict.
On March 3, 2018, Jones travelled fro m Chicago to Minneapolis to attend a
ceremony for the recently deceased fath er of his ex-girlfriend, Courtney. 1 Courtney was
upset when some friends, including S.R., did not attend the ceremony. Her social media
status stated the ceremony “was a very important day of my life and that for my friends
who didn’t attend, you know, I don’t really have anything to say to them.” Using a
messaging platform on March 4, S.R. and Courtney argued and threatened each other; S.R.

1 This opinion refers to Cour tney by her first name, as othe r actors in the case share her
initials.

3
made disparaging remarks about Courtney’s father. Around the sa me time, Courtney’s
brother called S.R. and told him “I’m going to shoot your dad and kill you.”
Courtney decided to go to S.R.’s house in Woodbury and “fight him.” Jones,
Courtney’s brother, Z.S., D.B., and at le ast three others accompanied Courtney. 2 Before
they left, Courtney told th e group “nobody shoo t nobody.” The group traveled in two
vehicles: a pickup truck, and Z. S.’s car. While en route, Cour tney’s brother asked Z.S. to
switch vehicles: Courtney’s brother drove Z. S.’s car with Jones as a passenger, while
Courtney, Z.S., D.B., and the others drove in the truck.
S.R.’s home is on a corner lot: the front door faces Lake Ridge Drive, and the garage
and kitchen window face Addison Way. At around 6 p.m., the pickup truck parked in front
of the house on Lake Ridge Drive, while the car parked on Addison Way facing Lake Ridge
Drive.
Courtney, Z.S., and the others exited the pi ckup truck. By text message, Courtney
told S.R. to come outside, but he remained inside. S.R.’s father overheard S.R. on the
phone with 911. S.R.’s father looked out the front door and saw a group of “five or six
Black women.” He then went to his kitchen window and saw two Black men sitting in the
car parked on Addison Way. S.R.’s father closed the blinds, turn ed around, and heard
gunshots, and one bullet struck him in the back. The bullet fragmented, requiring surgery
and a week-long hospital stay.

2 We note that Jones testified he did not go to S.R.’s home and discuss his testimony below.

4
Just before the gunshots, Z.S., who was with Courtney in front of the house, heard
a male voice say, “get back into the car.” As Z . S . g o t b a c k i n t o the pickup truck with
Courtney and the others, she heard gunshots. After the gunshots, both groups left S.R.’s
home: Courtney’s brother and Jones in the ca r, and the others in the pickup truck. A
neighbor’s security camera r ecorded the pickup truck leav ing the area at 6:16 p.m.,
followed by the car.
As they drove off, Z.S. panicked because her “car was just basically at a scene with
people outside and gunshots ju st happening and my car was literally dead smack in front
of this person’s house . . . .” Z.S. decide d she wanted her car, and both vehicles pulled
over. Z.S. testified that Courtn ey’s brother was in the drive r’s seat and Jones was in the
front passenger seat. Z.S. got into her car with D.B., while Courtney’s brother and Jones
moved to the pickup truck.
During the police investigation, S.R. id entified Courtney and disclosed their
messages. Police arrested Jones and Courtn ey together as they hid from police at
Courtney’s workplace. The state charged J ones with aiding and abetting (1) drive-by
shooting, Minn. Stat § 609.66, subd. 1e(b) ( 2016); (2) first-degree assault, Minn. Stat.
§ 609.221, subd. 1 (2016); and (3) second-degr ee assault, Minn. Stat. § 609.222, subd. 1
(2016). The state also charge d Courtney and her brother with aiding and abetting the
drive-by shooting and assault.
Before Jones’s jury trial, the state moved to admit seven videos from Jones’s social
media account showing that Jones “had ac cess to firearms and [had] the ability and
knowledge to use a firearm.” Jones opposed th e motion. The district court admitted three

5
redacted videos on the condition that the state lay sufficient foundation.3 Two of the videos
showed Jones with handguns and bullets and the other video showed him firing a handgun
at a shooting range. Later, all three videos were received into evidence.
During trial, the state presented evidence of its investigation. Police investigators
testified that they found seven bullet holes on the house exterior. They also found two bullet
fragments in the front yard and determined that one bullet went through the kitchen window
before hitting S.R.’s father. An expert testified that all shot s were fired from the side of
S.R.’s home where Z.S.’s car was parked with Courtney’s br other and Jones. Trajectory
analysis showed that three rounds might have been fired from the street or sidewalk area
in front of the house, suggesting that the shooter was likely moving. A forensic examination
of Z.S.’s car determined that no shots were fired from inside her car.
Police investigators testified that they recovered seven .45-caliber shell casings
between Addison Way and S.R.’s home, but th ey never found the firearm. An expert
testified that the .45-caliber casings were all fired from the same firearm. The expert also
testified that the firearm used in the shooti ng was, in his opinion, one of 58 models of
firearms.
The state also called Courtney, Z.S., and D.B. to testify. Courtney’s brother did not
testify. D.B.’s testimony about the shooting was similar to Z.S.’s testimony. Z.S. was the

3 The district court ruled that the state needed to first establish th at two videos showing
Jones with handguns and bullets were consistent with the fire arm and bullets used in the
shooting, and the third video of Jones firing at a shooting range involved a handgun that
was consistent with the firearm that shot S.R.’s father.

6
only witness to testify that, af ter they returned to Courtney’s house, Jones told her
“everything would be fine. Nothing happened in [her] car.”
During Courtney’s testimony, her account vacillated on what Jones told her as they
hid from police just before their arrest.4 As she responded to questions about her recorded
police statement, she agreed th at she said Jones talked to her about the shooting and she
asked Jones whether he thought someone had been shot at S.R.’s home. Courtney also
agreed she told police th at Jones responded, “I just fired at the first person I seen in the
window.” Courtney testified, however, that Jones only told her that “he [saw] a man in the
window looking at them,” and he “didn’t k now if somebody got hit.” Courtney also
testified Jones told her that after shots were fired “he ju mped in the car” through the
window because “the doors couldn’t open or they don’t know how to use [Z.S.’s] car to
open the door.”
Jones testified in his own defense that he was not at S.R.’s home in Woodbury, did
not shoot a gun “at S.R.’s house,” and did not “help anyone else . . . shoot at the house.”
He also testified that he hid from police because he was scared. Finally, Jones testified that
the handguns in two of the state’s videos were replicas that he used to make music videos.
He also testified that the bag of loose ammunition in one video was 9mm caliber.
At the conclusion of testimony, the district court instructed the jury that Courtney’s
testimony must be corroborated because she was an accomplice. The district court declined
to instruct the jury that Z.S. and D.B. were accomplices, but did instruct that “[i]f you find

4 Courtney waived her Fifth Amendment privilege against self-incrimination, and was not
granted immunity or a plea offer contingent on her cooperation.

7
that any person who has testifie d in this case is a person wh o could be charged with the
same crimes as the Defendant, you cannot find the Defendant guilty of a crime on that
testimony unless that testimony is corroborated.”
The jury found Jones guilty on all counts. The district court convicted Jones on two
counts and sentenced him to 13 5 months for the first-degree assault, concurrent with 81
months for the drive-by shooting. The distri ct court did not convict Jones or impose a
sentence for the second-degree assault conviction.
Jones appeals.
DECISION
Jones raises four issues on appeal. Becaus e the district court’s determination that
Z.S. was not an accomplice as a matter of law relates to our an alysis of evidence
corroborating Courtney’s accomplice testimony, we address this issue first. Then we turn
to the sufficiency of the evidence, followe d by the admission of Spreigl evidence, and
conclude with the sentencing issue.
I. The district court did not abuse its discretion by denying Jones’s request for a
jury instruction that Z.S. was an accomplice as a matter of law.

We review a district court’s decision to decline a requested jury instruction for abuse
of discretion. State v. Cox , 820 N.W.2d 540, 547 (Minn. 2012); State v. Pendleton ,
759 N.W.2d 900, 907 (Minn. 2009). A district court abuses its discretion when its decision
is “based on an erroneous view of the law or is against logi c and the facts in the record.”
Riley v. State, 819 N.W.2d 162, 167 (Minn. 2012) (quotation omitted).

8
“An accomplice instruction ‘must be given in any criminal case in which any
witness against the defendant might reasonably be considered an accomplice to the crime.’”
State v. Lee, 683 N.W.2d 309, 316 (Minn. 2004) (quoting State v. Shoop, 441 N.W.2d 475,
479 (Minn. 1989)). “If the questio n of whether a witness is an accomplice is disputed or
subject to differing interpretations, then th e issue is one of f act for the jury.” Pendleton,
759 N.W.2d at 907. “The test for determining if a witness is an accomplice is whether the
witness could have been indicted and convicted for the crime with which the defendant is
charged.” Id. (quotation omitted).
Here, the district court ruled that Courtn ey and her brother we re accomplices as a
matter of law. Jones’s attorney argued that the district court should also determine that Z.S.
and D.B. were accomplices as a matter of law and asked for a jury instruction that their
testimony must be corroborated. The state ar gued that neither Z.S. nor D.B. were
accomplices as a matter of law. The district court denied Jones’s request and instructed the
jury:
You cannot find the Defendant guilty of a crime on the
testimony of a person who could be charged with that crime,
unless that testimony is corrobora ted by other evidence that
tends to convict the Defendant of the crime. Such a person who
could be charged for the same crime is called an accomplice.
In this case, Courtney [] and [her brother] are persons who can
be charged with the same crime as the Defendant. Same crimes.
You cannot find the Defendant guilty of a crime on the
testimony of these accomplices unless the testimony is
corroborated.

9
The district court also instructed that if the jury found any other witness was an accomplice,
that accomplice’s testimony must be corroborated.5
A. Record evidence of Z.S. as an accomplice is co nflicting and subject to
different inferences.

“A person is criminally liable for a cr ime committed by another if the person
intentionally aids, advises, hi res, counsels, or conspires w ith or otherwise procures the
other to commit the crime.” Minn. Stat. § 609.05, subd. 1 (2016). In considering whether
Z.S. was an accomplice as a matter of law, the district court reasoned:
I don’t think that any reasonabl e prosecutor looking at these
facts, number one, would charge either [Z.S.] or [D.B.] with
conspiring with any of these othe r folks to shoot or discharge
a firearm at the crime scene. I al so think, even if a reasonable
prosecutor made that decision, they would still have to struggle
with their obligation to only charge people that they believe
can be convicted of the offense to which they’re charged.

Jones argues that Z.S. intentionally aide d the commission of the crime because she
gave Courtney’s brother and Jones her car when they asked for it, and therefore aided them
in committing the drive-by shooting. Jones points to evidence that Z.S. “saw the [social
media] video, read the comments, knew that Courtney was threatening [S.R.], observed
Courtney was upset, and decide d to go with Courtney know ing there was going to be a
confrontation.” Jones also argues that Z.S. was present when Courtney said, “nobody shoot
nobody.” From this, Jones contends that it was reasonably foreseeable that in aiding
Courtney, her brother, and Jones, a crime involving a firearm or serious harm might result.

5 On appeal, Jones does not raise the issue of whether D.B. was an accomplice as a matter
of law.

10
The state responds that Z.S. “went to [S.R.’s] home in Woodbury, knew there might
be a confrontation, and allowed [Courtney’s brother] and [Jones] to use her vehicle once
at the scene. But that is not the end of the analysis.” The state argues that other record
evidence negates Z.S.’s accomplice liability, therefore, the dist rict court did not abuse its
discretion by instructing the jury to decide the issue.
We agree with the state, based on four as pects of Z.S.’s testimony. First, Z.S.
testified that she was not sure if the confrontation between Courtney and S.R. would be
verbal or physical: “I don’t know what the full intentions was of, like, is it just going to be
a talk out, are they going to be arguing, is there going to be a fight, like, I didn't really know
exactly what the details was.” Second, when the two groups arrived at S.R.’s home and
S.R. did not come outside, Z.S. testified that she told Courtney “come on. This is pointless,”
and “drift[ed] towards the truck.” Third, Z.S. testified that she “wouldn’t even have had
my car in a situation like that if I knew that was going to happen like that.” Z.S.’s
credibility was thus important to whether the ju ry found her to be an accomplice. Fourth,
Z.S. did not admit, and no r ecord evidence establishes, th at she heard Courtney say,
“nobody shoot nobody.” Because “the question of whether [Z.S .] is an accomplice [was]
disputed or subject to differing interpretations, then the issue [was] one of fact for the jury.”
See Pendleton, 759 N.W.2d at 907.
In Pendleton, the state at first charged a witness with the same murder charge as the
defendant. Id. Record evidence showed the witness stayed with the group the entire night
of the murder, opened the house door while the defendant and others carried the victim to
a car, and initially lied to police about what happened. Id. But no record evidence connected

11
the witness to the defendant’s co nversation planning the killing. Id. at 908. The supreme
court held that the district court did not err in giving a general-accomplice jury instruction
when “a variety of inferences can be drawn from the facts, some of which support the
conclusion that [the witness] was an ac complice and some of which negate such a
conclusion.” Id. at 907. For example, the witness’s action of holding open the door is just
as consistent with fear as it is with intentionally aiding the crime. Id. at 908.
Based on Pendleton, we conclude that the district court properly instructed the jury
that if it believed any witness could be charged with the same crimes as Jones, it must
consider that witness an accomplice whos e testimony must be corroborated. This
instruction, like the one approved of in Pendleton, permitted conflicting inferences about
the evidence connecting Z.S. to the crime and appropriately le ft the issue to the jury’s
determination.
B. Any error was harmless.
Even if the district court abused its disc retion by refusing to in struct the jury that
Z.S. was an accomplice as a matter of law, we conclude the district court’s error was
harmless. Jones contends Z.S.’s testimony that Jones told her “you’re fine. Nothing
happened in your car,” was the only significant, corroborating evidence tying Jones to the
crime. We disagree.
We consider “several factors in determ ining whether a failure to instruct on
corroboration of accomplice testimony constitutes reversible error, including whether the
accomplice testified in exchange for leni ency, whether the accomplice’s testimony was
emphasized in the prosecution’s closing argument, and whether the accomplice’s

12
testimony was corroborated by significant evidence.” State v. Jackson, 726 N.W.2d 454,
461 (Minn. 2007) (citing State v. Gail, 713 N.W.2d 851, 864 (Minn. 2006)).
Addressing these factors in turn, Z.S. did not receive le niency in exchange for her
testimony. The record establishe s that she hoped that she woul d not have to testify, and
was “not at all” happy to be at Jones’s trial.
Second, the state’s closing argument spans slightly more than 34 pages of trial
transcript, and the prosecuting attorney men tioned Z.S. many times, but the argument
usually referred to Z.S. along with the testim ony of other witnesses. Jones is correct that
the state’s closing argument repeated Z.S.’s testimony that Jones told her nothing happened
in her car. But the closing argument must be viewed in context. The only long discussion
of Z.S.’s testimony was the prosecuting atto rney’s argument that Z.S. and D.B. were not
accomplices. The prosecuting attorney pointed out that “based on the evidence, you have
to decide whether or not they could be charged at an equal level with everybody else.” We
conclude that the state’s closing argument ce ntered on Courtney’s testimony and Jones’s
actions and did not overly emphasize Z.S.’s testimony.
Third, significant evidence corroborates Z.S.’s testimony. We acknowledge that no
evidence corroborates Z.S.’s statement that Jones told her nothing happened in her car. But
this testimony tracks the investigator and expert testimony that shots were likely fired from
outside the kitchen window near Addison Way and forensic evidence that no shots were
fired from inside Z.S.’s car. All eyewitnesses placed Jones as the passenger in the car
parked on Addison Way. Jone s’s testimony that he was never at S.R.’s home, provides
more corroboration because the jury rejected it and implicitly found he was in Z.S.’s car.

13
See State v. Penderson , 614 N.W.2d 724, 732 (Minn. 2000) (stating that “corroborating
evidence may consist of . . . inadequacies and admissions in a defendant’s testimony”).
Given this record evidence, even if the district court erred in failing to instruct the jury that
Z.S. was an accomplice as a matter of law, the error was not prejudicial.
II. Sufficient evidence supports Jones’s co nviction because the record evidence
corroborates Courtney’s accomplice testimony.

Jones argues that the state failed to ade quately corroborate Courtney’s accomplice
testimony and that, without her testimony, the r ecord evidence is in sufficient to sustain
Jones’s convictions. Because we have determin ed that Z.S. was not an accomplice as a
matter of law, we consider this issue in light of Z.S.’s testimony, as well as the other
corroborating evidence.
“Accomplice testimony is inherently untr ustworthy and must be supported by
independent evidence.” Pederson, 614 N.W.2d at 732 (quotation omitted). “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
corroboration is not sufficient if it merely shows the commission of the offense or the
circumstances thereof.” Minn. Stat. § 634.04 (2 016). “In a practical sense, the legislation
embodies the common law’s long-standing mistru st of the testimony of the accomplice.”
Shoop, 441 N.W.2d at 479. While the “quantum of corroborating evidence required in any
case depends on the circumstances of the crime. . . . [i]t is sufficient if it reinforces the truth
of the accomplice’s testimony and points to th e defendant’s guilt in some substantial
degree.” Pederson, 614 N.W.2d at 732 (quotations omitted).

14
A. Standard of review
The parties generally agree that “in revi ewing the sufficiency of the corroborating
evidence of an accomplice’s testimony, we revi ew the evidence just as we would on a
sufficiency challenge—in the light most favorable to the prosecution, and with all conflicts
in the evidence resolved in favor of the verdict.” State v. Nelson , 632 N.W.2d 193, 202
(Minn. 2001).
Jones cites State v. McAllister , 862 N.W.2d 49, 53 (Minn. 2015), and argues that
because the “intentionally aids” element of a ccomplice liability is a st ate of mind, it is
“generally proven through circumstantial ev idence . . . [and therefore] a higher level of
scrutiny is warranted.” Jones is correct that a person is guilty of aiding and abetting a crime
if she “ intended that [her] presence or actions aid the commission of that crime.”
10 Minnesota Practice, CRIMJIG 4.01 (2016) (emphasis added). Intent is usually proven
through circumstantial evidence. See, e.g., McAllister, 862 N.W.2d at 53; State v. Cooper,
561 N.W.2d 175, 179 (Minn. 1997).
Jones contends that the circumstantial eviden ce standard allows this court to defer
to the fact-finder’s acceptance of circumstances proven, but requires this court to examine
the reasonableness of all inferences that might be drawn from those circumstances without
deference to the fact-finder’s choice between reasonable inferences. See State v. Silvernail,
831 N.W.2d 594, 598-99 (Minn. 2013); State v. Andersen , 784 N.W.2d 320, 329-30
(Minn. 2010). The state counters that even if the evidence corroborating an accomplice’s
testimony is circumstantial, the direct -evidence standard should be used. See Nelson ,
632 N.W.2d at 202. Because the state also contends that “regardless of which standard the

15
Court employs, the evidence supports [Jones’ s] conviction,” we apply the heightened
standard of review applicable to circumstantial evidence.
B. Analysis of record evidence
The state relied on Courtney’s testimony in its case-in-chief. Jones reasons that “a
guilty verdict required proof either that [Jone s] was the person who s hot the gun, or he
intentionally aided [Courtney’s brother] in doing so.” Jones maintains, “there must be
independent evidence co nnecting the defendant with the crime, which under a principal
liability theory means evidence showing [Jones] to be the person who fired the gun.” Jones
argues the state’s strongest evidence was Cour tney’s testimony that she told police Jones
told her that he shot at the first person he saw in the window, and also argues this testimony
was not corroborated by other, independent evidence connecting Jones to the crime.
The state counters that physical ev idence and other testimony corroborated
Courtney’s testimony. “Corroborating evid ence may consist of: physical evidence
associated with the crime; the testimony of eyewitnesses and experts at trial; inadequacies
and admissions in a defendant’s testimony; and suspicious and unexplained conduct of an
accused before or after the crime.” Pederson, 614 N.W.2d at 732.
We agree with the state that the physical evidence and expert testimony about the
location of the shooter provid e corroborating evidence that Jones was the shooter. The
circumstances proved are:
First, a forensic analysis of the bullet trajectory showed that the shots that hit S.R.’s
father and the house exterior came from wher e the car was parked on Addison Way, and

16
witnesses corroborated that Jones was the passenger. Investigators found seven shell
casings next to the sidewalk, directly in front of the kitchen window.
Second, Courtney’s brother and Jones were the only people in the car parked outside
the kitchen window at the time of the shooting. S.R.’s father also testified that he saw two
Black men in the car outside his kitchen win dow just before he was shot. Thus, either
Courtney’s brother or Jones, or both, were involved in the shooting.
Third, evidence establishes that the car was parked facing Lake Ridge Drive. Seven
shell casings were found close to the sidewalk area and near the passenger side of the car.
The location of the casings also shows that the car passenger was likely the shooter. Before
and after the shooting, Courtney’s brother was driving the car and Jones was in the
passenger’s seat.
Fourth, Jones told Z.S., who panicked af ter the shooting, that nothing happened
inside her car. This statement implies that he was the shooter.
Fifth, a security camera captured the pickup truck leaving first, followed by the car.
A neighbor testified that he saw the car leaving the scene immediately after the
gunshots. D.B. and Z.S. testified that they heard the gunshots just as they got back into the
pickup truck. Given how quickly the car left the scene after the shooting stopped, this
evidence points to the car passenger, Jones, as the likely shooter.
Sixth, record evidence establishes that J ones attempted to evade arrest and lied to
police and the jury. Jones hid when police came to arrest him and Courtney, which implies
consciousness of guilt. See State v. McDaniel, 777 N.W.2d 739, 747 (Minn. 2010). Jones
told police and testified to the jury that he did not go to S.R.’s residence, shoot a gun at the

17
house, or help anyone else do so. “If the accused testified, the inadequacies and admissions
in his testimony may be corroborative of the accomplice’s testimony.” State v. Adams ,
295 N.W.2d 527, 533 (Minn. 1980). The jury rejected Jones’s account when it found him
guilty of all three counts. Every other eyewitness testified that Jones was at the scene and
was with Courtney’s brother when the shooting occurred. “The defendant’s entire conduct
may be looked to for corroborating circumstan ces. If his connection to the crime may be
fairly inferred from those circumstances, the corroboration is sufficient.” Id. Thus, Jones’s
guilty conduct and testimony, which the jury found to be false, also corroborates
Courtney’s testimony.
In short, Jones was in the location from wh ich the bullet that h it S.R.’s father was
fired. Taking all of this evidence together —testimony that Jones was the car passenger,
physical evidence that no shooting occurred inside the car, and that shots were fired in the
area outside the kitchen window where the car was parked—the state’s case tends to prove
Jones was the shooter. The immediate departur e of the car after the shooting ended also
tends to prove that Jones was the shooter be cause he was on the passenger side closest to
the house and he told Z.S. that nothing happened inside the car. The inadequacies of Jones’s
testimony—that he was nowhere near the s hooting despite the testimony of every other
eyewitness—are further corroborating circumstances.
Finally, the circumstantial ev idence is sufficient because the inference that Jones
was an innocent bystander is unreasonable given the corroborating evidence. Because
Jones’s “connection to the crime may be fair ly inferred from those circumstances, the
corroboration is sufficient.” See Adams, 295 N.W.2d at 533. Thus , even if we set aside

18
Courtney’s testimony, Jones’ s conviction is supported by sufficient, corroborating
evidence.
III. The district court did not abuse its discretion by allowing the state to introduce
Spreigl evidence of Jones handling firearms and .45-caliber bullets.
This court reviews evidentiary rulings, including objected-to Spreigl evidence, for
abuse of discretion. State v. Ness, 707 N.W.2d 676, 685 (Minn. 2006); State v. Kennedy,
585 N.W.2d 385, 389 (Minn. 1998). “A defenda nt who claims the trial court erred in
admitting evidence bears the bur den of showing the error an d any resulting prejudice.”
Kennedy, 585 N.W.2d at 389. The state concedes that if the district court erred by admitting
Spreigl evidence, the error was not harmless.
As a general rule, “[e]vidence of another crime, wrong, or act is not admissible to
prove the character of a person in order to sh ow action in conformity therewith. It may,
however, be admissible for other purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or accident.” Minn. R. Evid.
404(b)(1). In a criminal trial, evidence of other wrongs or acts may be admitted only if it
“is relevant to an identified material issue other than conduct conforming with a character
trait,” and “the probative value of the evidence is not outweighed by its potential for unfair
prejudice to the defendant.” Minn. R. Evid. 404(b)(2)(a), (b)(2)(c).6

6 Evidence of other wrongs may be admitted only if the five Spreigl conditions are met:

(1) notice is given that the stat e intends to use the evidence;
(2) the state clearly indicates what the evidence is being
offered to prove; (3) the evidence is clear and convincing that
the defendant participated in the other offense; (4) the Spreigl
evidence is relevant and material to the state’s case; and (5) the

19
On appeal, Jones challenges the admission of the three videos showing Jones with
firearms on only two grounds—the videos were not relevant to any proper purpose, and
that even if they were mi nimally relevant, the probativ e value was outweighed by the
prejudicial effect. We consider each argument in turn.
A. Relevance
Jones first points out that the district court did not explicitly identify the purpose for
which the evidence was admissible. While this is accurate, the state argues that the context
of the district court’s decision makes the pu rpose clear. The record supports the state’s
position. The state provided notice of its intent to offer videos from Jones’s social media
account to establish that he had access to firearms and has the ability and knowledge to use
a firearm. Jones agrees that “[t]he prosecutor was very specific” at the pretrial hearing on
this evidence; the prosecutor no ted that “the purpose of show ing these videos is to show
that [Jones] had access to firearms and that he knows how to use the firearms and,
specifically, the firearms that could shoo t a bullet that was used in this case .” (Emphasis
added.)
The district court reviewed the evidence and allowed three redacted videos, subject
to the state laying foundation that (1) the social media ac count belonged to Jones and
(2) the firearms in the videos were capable of firing .45-caliber ammunition. The district

probative value of the Spreigl evidence is not outweighed by
its potential for unfair prejudice.

State v. Gomez , 721 N.W.2d 871, 877 (Minn. 20 06). Here, Jones challenges only the
relevance and potential for unfairness of the other wrongs evidence, thus we do not address
the other conditions.

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court, therefore, narrowed the purpose of the videos to prove access to the type of weapon
and bullet used to shoot S.R.’s father. The district court reviewed the redacted videos and
then allowed the state to play the videos for the jury. Thus, we agree with the state that, in
context, the purpose for whic h the evidence was admitted is clear: the district court
admitted the videos to show that Jones knew how to use the type of firearm that was used
to shoot S.R.’s father, and Jones had access to the type of firearm and ammunition that was
used to shoot S.R.’s father.
Still, Jones contends that “there was no consequential fact—other than guilt or
innocence—in dispute that might have made the Spreigl evidence relevant.” Jones argues
he had two defenses, not guilty and alibi, and that ne ither defense was disproved by
showing that Jones possessed a firearm. The st ate counters that the evidence of Jones’s
access to the type of firearm used to shoot S.R.’s father was highly relevant.
We agree with the state. “‘Relevant evidence’ means evidence having any tendency
to make the existence of any fact that is of consequence to the determination of the action
more probable or less probable than it would be without the evidence.” Minn. R. Evid. 401.
Here, evidence that Jones had access to and knowledge of how to use a firearm of the same
type used by the shooter makes it more probable that Jones was the shooter. The evidence
is thus relevant, particularly the video showing Jones at the shooting range firing a firearm
like the type used by the shooter. It shows Jones knew how to shoot a firearm like the one
used in the shooting, and had access to a firearm like the one used in the shooting, which
goes to identity and opportunity. See Minn. R. Evid. 404(b)(1) (stating knowledge, identity,
and opportunity are proper purposes).

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B. Probative value/prejudicial effect
Whether the video evidence was more probative than unfairly prejudicial is a closer
question, particularly on the two “music videos” showing Jones handling weapons. Jones
argues that the video evidence “was hardly probative of any di sputed facts in this case,”
and that “[a]t best, this eviden ce proved that [Jones], more th an a year before the offense
in this case, had access to guns.” The state counters that “there were only two people in the
[car], near which the bullets were fired and the shells fou nd, only those two people could
have been the shooter. Whether [Jones] or someone else was the shooter was perhaps the
most important issue at trial.”
Our analysis is guided by Ness, where the supreme court reviewed Spreigl evidence
by analyzing the probative value versus the potential for unfair prejudice. The supreme
court observed that Spreigl evidence was “not needed to strengthen otherwise weak or
inadequate proof of an element of the charged offense or the state’s case as a whole.” Ness,
707 N.W.2d at 689. As a result, the supreme court determined the district court abused its
discretion by admitting the disputed evidence. Id.
Here, the state was required to corroborate Courtney’s testimony and the testimony
of any other witness the jury determined wa s an accomplice—potentially both Z.S. and
D.B. Thus, the shooting-range video, whic h showed Jones discharging firearms and
ammunition of the same type and caliber used in the shooting, was highly probative of
whether he or Courtney’s brother was the sh ooter. Jones claims th at the shooting-range
video was “dissimilar in nature, location, a nd activity” to the charged conduct. To the

22
contrary, discharging a .45-caliber firearm, the same caliber used in the shooting, is very
similar to the charged conduct.
We are troubled by the admission of the two music videos, given they are dated a
year before the offense and the state’s expert conceded that the weapons depicted could be
replicas. Still, the district court only allowed th ree of the seven videos the state sought to
introduce, and ordered the redaction of the videos received so that only possession and use
of .45-caliber firearms was shown. The distri ct court excluded, for example, a video of
Jones using what appeared to be an AR-15 long gun at the shooting range, which was not
used in the shooting. The district court also ordered re daction of potentially prejudicial
lyrics and audio from the music videos, even though the audio was largely unintelligible.
The question before us is not whether the evidence pr ejudiced Jones’s case, but
rather whether it “persuades by illegitimate means, giving one party an unfair advantage.”
State v. Bell , 719 N.W.2d 635, 641 (Minn. 2006) (quot ation omitted). We conclude that
the video evidence did not pers uade by illegitimate means. In stead, it showed that Jones
had access to and knowledge of how to use .45-caliber firearms and ammunition, the same
type of firearm and ammunition used by the shooter. This evidence also corroborated the
testimony of Courtney, an accomplice. We see no abuse of discretion based on this record.
Therefore, we do not consider whether any error in the admission of the video evidence
was harmless.
IV. The district court did not err in sentencing Jones.
Jones argues that the district court im posed two sentences for one behavioral
incident, in violation of Minn. Stat. § 609.035 (2016). The state argues, and Jones agreed

23
at oral argument, that this issue is governed by the supreme court’s recent decision in State
v. Branch , 942 N.W.2d 711 (Minn. 2020), which was published the day after Jones
submitted his brief. We review Jones’s sentence de novo. State v. Ferguson, 808 N.W.2d
586, 590 (Minn. 2012).
“[I]f a person’s conduct constitutes more th an one offense under the laws of this
state, the person may be punished for only one of the offenses . . . .” Minn. Stat. § 609.035,
subd. 1. In State v. Ferguson, the supreme court concluded th at section 609.035 does not
prohibit multiple sentences for a drive-by shooting when the same conduct also constitutes
assault. 808 N.W.2d at 592. The court reasoned, “for purposes of the rule that a district
court may not sentence a defendant for more than one crime for each victim, a single count
of drive-by shooting at an oc cupied building does not cons titute a crime against each
building occupant.” Id. at 591. The supreme court held that multiple sentences were
warranted because of the multiple victims in the drive-by shooting. Id.
In Branch, the supreme court affirmed two sentences, one for drive-by shooting and
one for assault, from a single behavioral inci dent when the defendant fired a single shot
toward an occupied vehicle. 942 N.W.2d at 712. The supreme court reasoned “[t]he
sentences comply with our holding in Ferguson that a single count of drive-by shooting is
effectively a victimless crime: Branch recei ved one sentence for his victimless conduct,
plus one sentence for his offense against a victim [].” Id. at 715.
Here, too, Jones received one sentence fo r the drive-by-shooting count, and one
sentence for the more serious of his two assa ult counts. This court “is bound by supreme
court precedent . . . .” State v. M.L.A. , 785 N.W.2d 763, 767 (Minn. App. 2010), review

24
denied (Minn. Sept. 21, 2010). We therefore dete rmine that Jones’s two sentences for the
same behavioral incident are controlled by Branch, and do not violate section 609.035.
Affirmed.