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This opinion is nonprecedential except as provided by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
A20-1051

State of Minnesota,
Respondent,

vs.

Justin Raymon Wainner,
Appellant.

Filed July 12, 2021
Affirmed
Bratvold, Judge

Ramsey County District Court
File No. 62-CR-18-8166

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

John J. Choi, Ramsey County Attorney, Jeffrey A. Wald, Assistant County Attorney,
St. Paul, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, St. Paul, Minnesota; and

Melissa Sheridan, Assistant Public Defender, Eagan, Minnesota (for appellant)

Considered and decided by Connolly, Presiding Judge; Hooten, Judge; and
Bratvold, Judge.
NONPRECEDENTIAL OPINION
BRATVOLD, Judge
After a bar fight during which the bouncer was assaulted, the jury found appellant
guilty of second -degree riot under Minn. Stat. § 609.71, subd. 2 (2018). Appellant
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challenges his judgment of conviction, arguing that the district court committed reversible
error “by allowing two police officers to testify about their opinions on the issue of
[appellant’s] intent as part of the alleged group criminal activity that was the basis for the
charged offenses.” Because appellant did not object to the challenged testimony during the
jury trial, we review the issue for plain error. We conclude that the district court did not
plainly err by admitting the lay and expert testimony and, alternatively, that any error was
harmless. As a result, we affirm.
FACTS
In an amended complaint, respondent State of Minnesota charged appellant Justin
Raymon Wainner with five counts: aiding third-degree assault for the benefit of a gang
under Minn. Stat. §§ 609.229, subd. 2, .05, subd. 1 (2018) (count one); aiding third-degree
assault under Minn. Stat. § 609.223, subd. 1 (2018), Minn. Stat. § 609.05, subd. 1
(count two); threats of violence under Minn. Stat. § 609.713, subd. 1 (2018) (count three);
second-degree riot committed for the benefit of a gang under Minn. Stat. §§ 609.71,
subd. 2, .229, subd. 2 (count four); and second-degree riot under Minn. Stat. § 609.71,
subd. 2 (count five).
All counts involve the assault of the bouncer at the Saloon Bar (bar) in St. Paul on
November 9, 2018. The state’s theory, as argued in closing, was that Wainner was a gang
member who stood on the perimeter of the fight while other gang members assaulted the
bouncer in retaliation for being asked to remove gang clothing. The defense theor y, as
argued in closing, was that Wainner was “merely present” during the fight, and that “mere
presence is not enough . . . to show intent.”
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Wainner is a member of the Hells Outcast Motorcycle Club (Hells Outcast). The bar
has a dress code that prohibits Hells Outcast members from entering the bar while wearing
their leather vest with insignia (club vest), also known as “colors.” Earlier in 2018, there
was an incident at the bar involving a Hells Outcast member, J.P., who entered the bar
wearing his club vest. The bouncer told J.P. to take off his vest. The bouncer later testified
that J.P. was “kind of upset” about the incident, but he left the bar and returned without his
club vest.
The bar has many surveillance cameras and the district court received into evidence
several recordings depicting events at the bar before and after the assault; the recordings
were played for the jury. No audio recording was made. The video showed that J.P. entered
the bar at about 11:05 p.m. while the bouncer was working. J.P. was not wearing his club
vest and sat at the bar. Two more Hells Outcast members entered the bar and sat next to
J.P; both men were wearing their club vests. The bouncer approached J.P.’s two
companions and asked them to remove their club vests.
A camera posted outside the bar showed Wainner parking his pickup truck at about
11:14 p.m. Shortly after, three men, including J.J. and P.M., entered the bar, both wearing
club vests; they surrounded the bouncer, who was still speaking with J.P. and the two men
sitting at the bar. Wainner then entered the bar wearing a Hells Outcast sweater with a club
vest. Wainner stood nearby. J.J. looked up and then “sucker punche[d]” the bouncer. J.P.,
J.J., and P.M. threw the bouncer to the ground and continued punching him.
Wainner remained standing nearby. He looked around and did not hit the bouncer.
He picked up a stool that was knocked over during the fight and pi cked up P.M.’s hat.
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Within minutes, all Hells Outcast members, including Wainner, left the bar. One bar patron
later told police that he heard Wainner threaten to “shoot this [bar] up” as he left.
At about the same time that the Hells Outcast members were leaving, the bartender
called 911 and, at 11:15 p.m., reported an assault by the Hells Outcast gang. The audio
recording and transcript were received into evidence and the recording was played for the
jury. During the call, t he bartender conveyed the license-plate number for a pickup that
drove away with the gang members.
A St . Paul police officer stopped Wainner ’s pickup because it matched the
license-plate number given by the bartender. When asked about weapons, Wainner said he
had two firearms and a license to carry. The officer removed two firearms, a knife, and a
blackjack from Wainner’s pickup. The officer then arrested Wainner.
Wainner later gave a Mirandized statement to Sergeant Arnold; the recording and
transcript were received into evidence. Wainner admitted that he belonged to the Hells
Outcast club. He said he went to the bar to play pull tabs and did not plan to meet the Hells
Outcast members. He said that after he entered the bar, he did not talk to anyone, recognize
any members of Hells Outcast, and did not see a fight. He added that “something happened,
I don’t know what it was. But then I was kicked out. That’s all I know.” He denied making
any threats.
The state charged Wainner, J.J., P.M., and J.P. with offenses arising out of the
assault. P.M. and J.P. pleaded guilty. In November 2019, Wainner and J.J. proceeded to a
joint jury trial. The jury found J.J. guilty of all counts but acquitted Wainner of count three,
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threats of violence. The jury deadlocked on the other charges against Wainner and the
district court declared a mistrial.
In March 2020, Wainner’s second jury trial began on the remaining counts. The
evidence presented at the second trial is summarized above. The state offered testimony
by, among others, the bouncer and a bar patron who testified that although he had
previously identified Wainner, “sitting here today, that doesn’t look like the guy that was
there.” The state also called three law-enforcement officers: the responding officer who
stopped Wainner in his pickup; Sergeant Arnold; and Officer Michener, a motorcycle-gang
expert.
Wainner testified that he joined Hells Outcast about five years before the assault
because “it was fun to share [his] love for motorcycles with guys that had the same
interests.” He repeated his earlier statement about going to the bar to play pull tabs and
testified that he did not plan to meet Hells Outcast members. After he entered the bar, he
saw the fight and “got out of the way.” He denied setting up a perimeter, but admitted
picking up the stool and hat. He left when he was “kicked out” and denied making any
threats. Wainner also offered testimony by P.M., who admitted that he hit the bouncer after
J.J. started the fight.
At the end of the second trial, the jury found Wainner guilty of count five,
second-degree riot, and acquitted him of counts one, two, and four. The district court
sentenced him to one year and one day in prison but stayed execution for three years.
Wainner appeals.
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DECISION
Wainner seeks a new trial and argues that the district court committed plain error by
admitting lay and expert opinion testimony about his intent, even though he did not object
to either witnesses’ testimony during trial. The state argues that the district court did not
commit plain error because the challenged witnesses did not testify to Wainner’s intent and
the testimony received was helpful to the jury.
A district court has broad discretion in deciding whether to admit or exclude
evidence, and its rulings will not be disturbed unless it misapprehends the law or abuses its
discretion. State v. Kelly, 435 N.W.2d 807, 813 (Minn. 1989). When a defendant fails to
object to testimony at trial, he generally forfeits any right to appellate relief on the issue.
State v. Webster, 894 N.W.2d 782, 786 (Minn. 2017). Even so, appellate courts have
“discretion to consider an error not objected to at trial if it is plain error affecting substantial
rights.” State v. Jackson, 714 N.W.2d 681, 690 (Minn. 2006); see also Minn. R. Crim.
P. 31.02.
“When prosecutorial misconduct is not alleged, the defendant has the burden of
proving (1) an error, (2) that is plain, and (3) affects substantial rights.” State v. Sontoya,
788 N.W.2d 868, 872 (Minn. 2010) (citing State v. Griller, 583 N.W.2d 736, 740 (Minn.
1998)). If these three elements are satisfied, the appellate court “assess[es] whether [it]
should address the error to ensure fairness and the integrity of the judicial proceedings.”
Id. (quoting Griller, 583 N.W.2d at 740) (quotation omitted). The appellate court will
correct the error “only if the fairness, integrity, or public reputation of the judicial
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proceeding is seriously affected.” Jackson, 714 N.W.2d at 690 (quoting State v. Morton,
701 N.W.2d 255, 234 (Minn. 2005)) (quotation omitted).
Before considering Wainner’s specific arguments, we briefly summarize the
challenged testimony. The state called the investigating officer, Sergeant Arnold, as a lay
witness with 32 years of experience as a police officer. Arnold’s testimony identified
different people involved in the assault as the surveillance recording was played for the
jury, depicting events from several angles. Arnold testified that Wainner was “posted on
one side” of the fight and stated the assault was a “coordinated attack” where people were
“standing around intimidating, keeping people from rendering aid to this person, keeping
people from getting involved.” Arnold testified that Wainner was “intimidating people
while this assault went on so nobody would get involved.”
The state also called Officer Michener as an expert on gangs; he worked for two
years on the state gang unit and focused on motorcycle gangs in his training. Michener
testified that the bar-surveillance recording showed a “typical . . . motorcycle gang fight,”
which includes the members “mov[ing] in as a pack,” with some participating in the assault
and the others running “perimeter security,” “watching the rest of the bar, making sure
nothing will interfere, [and] making sure there’s no threats to the people in the gang.” When
describing Wainner’s role in the assault, Michener testified that Wainner had his “colors
on,” was “off to the side,” was “looking, scanning the bar, looking for possible threats,”
and was therefore p art of the assault. With this summary of the evidence in mind, we
consider Wainner’s arguments.
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Wainner first argues that the district court improperly admitted lay and expert
opinion testimony on his intent, which was an ultimate issue and the “key factual dispute.”
Minnesota’s evidence rules cover the admission of opinion testimony by lay and expert
witnesses. A lay witness may testify “in the form of opinions or inferences” so long as the
subject matter is (a) rationally based on their perception, (b) helpful to understanding the
testimony or a fact in issue, and (c) not based on expert or specialized knowledge. Minn.
R. Evid. 701. An expert witness may testify in the form of an opinion if the expert’s
“scientific, technical, or other specialized knowledge will assist the trier of fact to
understand the evidence or to determine a fact in issue.” Minn. R. Evid. 702.
The primary consideration in admitting lay and expert opinion testimony is whether
the testimony will help the jury resolve the factual questions presented. See Minn. R.
Evid. 701 (allowing lay-opinion testimony if “helpful to a clear understanding of the
witness’ testimony or the determination of a fact in issue”); State v. Myers, 359 N.W.2d
604, 609 (Minn. 1984) (discussing rule 702). Expert testimony is not helpful if it “is within
the knowledge and experience of a lay jury” and “will not add precision or depth to the
jury’s ability to reach conclusions about that subject which is within their experience.”
State v. Helterbridle, 301 N.W.2d 545, 547 (Minn. 1980); see also Jackson, 714 N.W.2d
at 691 (stating that expert opinion testimony on gang behavior “must add precision or depth
to the jury’s ability to reach conclusions about matters that are not within its experience”).
The rules on opinion testimony specifically address whether the testimony may
embrace an “ultimate issue.” Rule 704 provides that “[t]estimony in the form of an opinion
or inference otherwise admissible is not objectionable because it embraces an ultimate
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issue to be decided by the trier of fact.” Minn. R. Evid. 704 (emphasis added). Caselaw
recognizes that opinion testimony on an ultimate issue is admissible if helpful to the
fact-finder. See, e.g., State v. Saldana , 324 N.W.2d 227, 230 (Minn. 1982) (approving
expert testimony about a victim’s physical and emotion condition because it was helpful).
Generally, a district court does not abuse its discretion under rule 704 when it allows
an expert to offer opinion testimony about “factual rather than legal” observations. State v.
DeWald, 463 N.W.2d 741, 744 (Minn. 1990) Opinion testimony on an ultimate issue is
unhelpful, however, if it “embraces legal conclusions or terms of art” and thus is
inadmissible. See, e.g., id. (affirming conviction because expert opinion testimony was
factual); Saldana, 324 N.W.2d at 231 (reject ing expert testimony that a victim had been
“raped” because it was a legal conclusion).
When we examine the challenged evidence under the applicable rules, we conclude
that the district court did not plainly err by admitting either officer’s opinion testimony for
three reasons. First, the state offered the challenged evidence to prove required elements
of the offense of conviction. Importantly, as mentioned above, Minn. R. Evid. 704 does
not altogether prohibit testimony on an ultimate issue, so long as the evidence is helpful.
Saldana, 324 N.W.2d at 230. To convict Wainner of second-degree riot, the state needed
to prove that Wainner assembled with others and disturbed the public peace “by an
intentional act or threat of unlawful force or violence to person or property.” Minn. Stat.
§ 609.71, subd. 2 (emphasis added).
We specifically reject Wainner’s view that the challenged testimony included an
opinion about Wainner’s intent. N either Arnold nor Michener testified to a legal
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conclusion, such as an opinion that Wainner intended to participate in riot. Both witnesses
testified about Wainner’s behavior, from which the jury could determine his intent. Intent
is generally proven using circumstantial evidence from which the jury may infer intent.
See, e.g., State v. Caldwell, 815 N.W.2d 512, 517 (Minn. App. 2012), review denied (Minn.
June 27, 2012) (expert gang testimony was helpful because it implied that the actor “was
motivated by the gang’s concept of punishment for disrespect”).
Second, the district court did not abuse its discretion by admitting Arnold’s
observations about Wainner’s behavior from the surveillance recording. Arnold testified
about his trained and rational perceptions of a fast-moving bar fight. See, e.g., State v.
Washington, 725 N.W.2d 125, 137 (Minn. App. 2006) (determining that 911 operator’s
opinion was admissible under Minn. R. Evid. 701 because the testimony was “rationally
based” on her perceptions and helpful to the jury), review denied (Minn. Mar. 20, 2007).
Admitting an expert or lay witness’s factual observations is well within the district court’s
discretion. See DeWald, 463 N.W.2d at 744; Saldana, 324 N.W.2d at 231.
Third, the district court did not abuse its discretion by allowing Michener’s expert
testimony about typical gang behavior during the bar fight. Wainner does not challenge
Michener’s qualifications but focuses on the substance of his opinions. Michener testified
that motorcycle gangs will coordinate an assault, including having some members provide
“perimeter security,” because doing so intimidates others from intervening during the
assault. Because motorcycle-gang behavior during an assault is not within the experience
of a lay juror, the district court’s decision to admit Michener’s testimony was within its
discretion. Like the expert testimony about gang behavior that was upheld in Jackson,
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Michener’s testimony was helpful to the jury because his specialized training “add[ed]
precision or depth to the jury’s ability to reach conclusions about matters that are not within
its experience.” See Jackson, 714 N.W.2d at 691.
Wainner’s final argument is that the challenged testimony was not helpful because
the fight was reco rded. We disagree. Arnold’s and Michener’s opinion testimony, based
on their specialized training and experience and rational perception , was helpful for the
jury because it provided context for the jury to assess the surveillance recording.
We also conclude that, if there was any error, it was not plain. An error is “plain” if
it is “clear or obvious.” Sontoya, 788 N.W.2d at 872. “Typically this is shown if the error
contravenes case law, a rule, or a standard of conduct.” Id. The admission of Arnold’s and
Michener’s opinion testimony was a reasonable exercise of discretion under Minnesota’s
evidence rules and caselaw; it is not clear or obvious that this testimony would not help the
jury understand Wainner’s behavior in a fight that happened in a few minutes.
Finally, we also conclude that even if the admissions were erroneous, any error was
harmless and did not affect Wainner’s substantial rights. An error impacts substantial rights
if “the error was prejudicial and affected the outcome of the case.” State v. Little,
851 N.W.2d 878, 884 (Minn. 2014) (quotation omitted). Wainner’s substantial rights were
not affected for many reasons. Arnold’s and Michener’s testimony was cumulative of the
surveillance footage that was shown to the jury. The jurors used their own judgment in
evaluating the recordings of the assault. Wainner’s attorney also had the opportunity to
cross-examine both witnesses and respond during closing argument. Indeed, Wainner’s
attorney repeatedly pointed out throughout the trial that Wainner did not physically stop
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anyone from intervening in the assault. And the jury acquitted Wain ner of the
benefit-of-a-gang offenses for which Arnold’s and Michener’s testimony was most
relevant.1 Thus, any error did not affect Wainner’s substantial rights. See State v. Valtierra,
718 N.W.2d 425, 438 (Minn. 2006) (stating that error that did not substantially influence
the jury’s decision does not require reversal).
In sum, we conclude that the district court did not plainly err by admitting the
opinion testimony of Sergeant Arnold and Officer Michener and, if there was any error, it
was harmless.
Affirmed.

1 The state argues, and we agree, that the challenged testimony was relevant to other counts
that the jury rejected. Intent was a required element for the other charged counts: aiding
and abetting third-degree assault for the benefit of a gang, aiding and abetting third-degree
assault, and second-degree riot for the benefit of a gang. Thus, the state had to prove that
when Wainner committed the underlying benefit-of-a gang crimes, he had the “intent to
promote, further, or assist in criminal conduct by gang members.” Minn. Stat. § 609.229,
subd. 2. Michener’s testimony, in particular, was offered to prove this element.