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This opinion is nonprecedential except as provided by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
A21-1377

State of Minnesota,
Respondent,

vs.

Jerimiah Micheal McFee,
Appellant.

Filed September 12, 2022
Affirmed
Ross, Judge

Hennepin County District Court
File No. 27-CR-19-26792

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

Michael O. Freeman, Hennepin County Attorney, Linda M. Freyer, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

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

Considered and decided by Slieter, Presiding Judge; Ross, Judge; and Johnson,
Judge.
NONPRECEDENTIAL OPINION
ROSS, Judge
The state accused Jerimiah McFee of attacking another man in a parking ramp,
kicking and stomping on the man’s head, and leaving him cognitively disabled. The jury
found McFee guilty of attempted second- degree murder. McFee appeals from his
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conviction, claiming that the evidence does not support the guilty verdict, the prosecutor
engaged in misconduct, and the district court improperly excluded evidence. Our de novo
review informs us that the evidence readily supports the guilty verdict; our plain-error
review reveals no error regarding the alleged prosecutorial misconduct; and McFee’s
failure to apprise the district court of his theory of admitting otherwise inadmissible
evidence leaves his evidentiary challenge forfeited. We therefore affirm.
FACTS
In September 2019 shortly before 3:00 a.m., Jerimiah McFee went with another man
into the Minneapolis Mills Fleet Farm parking ramp. Four hours later the parking ramp
supervisor discovered the man, whom we will call Adam in the interest of his privacy, lying
facedown and unconscious in a pool of his own blood. The supervisor summoned
emergency assistance, and police and paramedics quickly arrived.
The paramedics rushed Adam to the hospital where he underwent trauma surgery to
save his life. The surgeon described Adam’s injuries as severe. He suffered a traumatic
brain injury. His eyes were significantly swollen. His face was lacerated and abraded.
Blood partially filled his airway. Many of his teeth were loose, and one was lodged in his
lung. His face was fractured in multiple places. His brain hemorrhaged. Following surgery
and in intensive care, Adam could not communicate or respond to commands. After
extensive medical treatment, Adam’s hospital physicians discharged him to a long-term
care facility. His long -term care physician described Adam’s head injuries as having
resulted from stomping. Adam has not regained his ability to speak or walk, and he lives
in a group home where he needs considerable basic, daily, personal care.
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Police who had arrived immediately at the parking ramp found no weapons on
Adam’s person, in his belongings, or near him. They identified McFee as Adam’s attacker
from video footage of McFee entering the parking ramp with Adam before the attack and
then running out of the parking ramp alone after the attack. McFee admitted to the beating,
and the state charged him with attempted second-degree murder and first-degree assault.
McFee notified the state that he intended to rely on the defense of self-defense. The
state moved to exclude any specific-act evidence relating to an altercation that occurred
three hours before the assault, which Adam had with anothe r person on the U.S. Bank
Stadium light rail platform adjacent to the parking ramp where the assault occurred. Metro
Transit police officers had separated two combatants, one of whom was Adam. He told
those officers that he was on the Metro Transit trespass list for having harassed passengers.
McFee argued that this specific-act evidence should be admitted as probative of who was
the aggressor in his assault on Adam. The district court excluded the evidence. It observed
that the altercation had occurred three hours before McFee assaulted Adam , that McFee
had been unaware of Adam’s altercation, and that no one had suggested that the man who
had been fighting with Adam was present when McFee later assaulted Adam. The district
court therefore excluded the altercation evidence as irrelevant to whether McFee believed
that Adam posed any threat to him.
The district court held a four-day jury trial. The jury heard testimony from Adam’s
mother, the parking ramp supervisor, the two responding police officers, a police
investigator, the tending paramedic, the trauma surgeon, the long-term care physician, and
the police officer who apprehended McFee. The jury also saw video footage of McFee and
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Adam entering the parking ramp and McFee leaving, video footage of McFee’s interview
with the investigator, and police body-camera images depicting Adam’s condition as police
found him. McFee testified on his own behalf, claiming that he attacked Adam in self-
defense.
The jury rejected McFee’s self- defense claim and found him guilty of attempted
second-degree murder and first-degree assault. The district court entered convictions for
both offenses and sentenced McFee to 180 months in prison for attempted murder. McFee
appeals.
DECISION
McFee argues that the state introduced insufficient evidence to support the guilty
verdict, that the prosecutor engaged in misconduct, and that the district court improperly
excluded evidence tending to establish Adam’s reputation for violence. We address each
argument.
I
We are unconvinced by McFee’s argument that the evidence does not support his
attempted second-degree-murder conviction. We examine the record to determine whether
the evidence, viewed in the light most favorable to the conviction, would allow a jury to
find the defendant guilty beyond a reasonable doubt. State v. Ortega, 813 N.W.2d 86, 100
(Minn. 2012). A person is guilty of attempted second-degree murder when he takes a
substantial step toward intentionally causing another’s death without premeditation. Minn.
Stat. §§ 609.17, subd. 1, .19, subd. 1(1) (2018). Intent, which is the only element McFee
disputes, requires a showing that the defendant “has a purpose to do the thing or cause the
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result specified.” Minn. Stat. § 609.02, subd. 9(4) (2018). But there was no direct evidence
proving that McFee intended to kill Adam, so the jury relied only on circumstantial
evidence.
Ample circumstantial evidence supports the jury’s finding of McFee’s intent to kill
Adam. Because the jury relied on circumstantial evidence on this element, we review the
evidence with closer scrutiny. State v. Al-Naseer, 788 N.W.2d 469, 473 (Minn. 2010). To
do so, we undertake a two-step analysis. We first identify the circumstances proved at trial,
deferring to the fact-finder’s acceptance of inculpatory evidence and rejecting conflicting
evidence; and we second determine whether those circumstances are consistent only with
guilt and inconsistent with any rational hypothesis other than guilt. Id. at 473–74. We are
satisfied that the following circumstances proved at trial establish McFee’s criminal intent
and support no innocent explanation. McFee went alone with Adam into the parking ramp
at about 2:50 a.m. Adam possessed no weapon that could have threatened McFee with
death or serious bodily harm. McFee repeatedly kicked and stomped Adam’s head with
enough force to dislodge his teeth, break the bones in his face, and leave him cognitively
impaired. McFee’s kicks and stomps to Adam’s head occurred while Adam laid helpless
on the ground. Adam’s injuries were obviously severe. McFee gave Adam no medical aid.
McFee fled. McFee did not contact emergency services personnel to render emergency aid.
This evidence indicates the brutal nature and severe force of McFee’s repeated attack on
Adam’s head and proves McFee’s willingness to leave Adam to die choking on his own
blood (and tooth) without medical assistance.
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McFee argues unpersuasively that these circumstances show only that he intended
to commit a first-degree assault. We reject as untenable his contention that, if he had
intended to kill Adam, then “he presumably would not have ceased his conduct and left the
scene.” Ceasing one’s conduct and fleeing the scene after repeatedly kicking and stomping
a man’s head to the point of crushing his brain is wholly consistent with intending to beat
the man to death and then escape the consequences of the crime. And no reasonable person
could infer that, by committing the self-evidently lethal acts and then abandoning the man
without summoning life-saving medical aid, McFee intended something less than a killing.
Because McFee provides no reasonable inference other than his intent to kill Adam, we
reject his insufficiency argument.
II
McFee identifies three statements the prosecutor made during closing argument and
argues that they constitute misconduct. Because none of these allegedly improper
arguments drew McFee’s objection during the trial, we review only under a plain-error
standard. State v. Ramey, 721 N.W.2d 294, 299 (Minn. 2006). We will not reverse under
this standard unless we see an error and the error was plain. Id. at 302. If McFee has
identified a plain error, the burden then shifts to the state to establish that McFee’s
substantial rights were not affected or, in other words, that “there is no reasonable
likelihood that the absence of the misconduct in question would have had a significant
effect on the verdict.” Id. (quotation omitted). McFee’s argument does not pass the first
step because he identifies no error.
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McFee argues that three statements impermissibly inflamed the jury’s passions by
urging the jury to reject McFee’s defense because “a not-guilty verdict would lead to a
chaotic and dangerous society.” It is true that a prosecutor must not inflame the jury’s
passions against the defendant. State v. Porter, 526 N.W.2d 359, 363 (Minn. 1995). But
we see nothing improperly inflammatory in the challenged statements:
Statement 1
I don’t know if Mr. McFee actually believed that [the victim]
was reaching for a gun. It’s possible that he really believed that.
But was it reasonable? The fact that he had an illogical,
irrational, paranoid, perhaps meth contributed to his
perception, that’s not a legal defense. It can’t be. That would
be chaos.
Statement 2
Your verdict has to be based on the law as it applies to the facts
in this case. We can’t live in this fantasy world where all of the
defendant’s actions are justified by imagined threats that he
sees around him. That would be chaos. That wouldn’t be a fair
or a civil society.
Statement 3
The law requires that a person act reasonably in self-defense,
because otherwise you could always do what [defense counsel]
just asked you to do, which is inconsistent with the law, put
yourself in somebody else’s shoes and think about, you know,
how they must have been feeling and speculate about that.
That’s not fair. That’s not reasonable. That’s not safe. That’s
chaos.
Because the same error is alleged in all three statements, we address them together.
We see no misconduct in these statements. McFee focuses on the prosecutor’s use of the
word, “chaos” which, in some contexts, would provoke jurors’ passions unfairly against
the defendant. But here the prosecutor introduced the word in the context of describing
McFee’s self-defense argument. In each statement, the term “chaos” is mildly ambiguous
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but can most fairly be read as referring to the unreasonableness of McFee’s self -defense
claim. The second statement’s reference to “chaos” immediately before a sentence about
“a civil society” comes closest to raising the concern about an unfair provocation. But it
too appears in the context of the prosecutor’s framing of the legal standard of self-defense,
including the fact that legitimate self-defense rests on real and reasonable threats rather
than fantastical dangers imagined upon a defendant’s confused, drug-influenced mental
state. McFee had testified that he smoked methamphetamine shortly before he assaulted
Adam, was on methamphetamine at the time of the incident, and had gone with Adam into
the ramp to find someone from whom they could purchase more methamphetamine. And
although he testified that he speculated that Adam might have possessed a gun, he said that
he searched for a gun but then fled in supposed fear for his life even after his search
uncovered no gun and even though Adam lay helplessly unconscious. It is not apparent
that the prosecutor’s use of the term “chaos” was inflammatory in this context, and it does
not amount to misconduct under our plain-error review.
III
McFee argues finally that the district court should have admitted evidence to support
his self-defense theory. Specifically, he contends that the district court should have
admitted evidence that, according to McFee on appeal, would have established Adam’s
reputation for violence . He points to Adam’s trespass status as having been previously
ordered not to enter transit property and his having fought with the other man three hours
before McFee stomped him unconscious. McFee acknowledges that he offered evidence of
Adam’s fight only “to show that [ Adam] was the aggressor” and that “prior acts are not
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admissible for this purpose.” But he maintains that, “[a]lthough the request below was
framed as specific acts evidence, the proffer was sufficient to show evidence of a reputation
for belligerence.” In other words, the district court erred, argues McFee , essentially by
having failed to admit otherwise inadmissible evidence on an obscure theory that McFee
never raised. Defense counsel, not district judges, decide a defendant’s trial strategy, and
judges are not oracles capable of discerning an undisclosed, unconventional use of
evidence that does not occur even to defense counsel until after the trial. We reject the
previously unraised argument as forfeited. See Roby v. State, 547 N.W.2d 354, 357 (Minn.
1996). We add that the argument would also have no apparent plain-error survivability had
we addressed it on the merits.
Affirmed.