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This opinion is nonprecedential except as provided by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
A22-0128

State of Minnesota,
Respondent,

vs.

Dejahn Akeem Wiley-Hunt,
Appellant.

Filed January 17, 2023
Affirmed
Ross, Judge

Hennepin County District Court
File No. 27-CR-19-29993

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

Mary F. Moriarty, Hennepin County Attorney, Linda M. Freyer, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, John Donovan, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Ross, Presiding Judge; Larkin, Judge; and Bryan, Judge.
NONPRECEDENTIAL OPINION
ROSS, Judge
The state accused Dejahn Wiley-Hunt of shooting a man in the stomach outside a
Minneapolis bar. A jury found him guilty of possessing a firearm as an ineligible person
and second-degree assault with a deadly weapon. The district court denied Wiley-Hunt’s
request for a dispositional departure and sentenced him to 60 months in prison. Wiley-Hunt
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argues on appeal that the district court improperly instructed the jury, that the prosecutor
engaged in misconduct, and that the district court improperly denied his request for a
downward sentencing departure. Because any error in the unobjected-to jury instruction
was not plain and the alleged prosecutorial misconduct did not affect Wiley-Hunt’s
substantial rights, we affirm the convictions. Because the district court acted within its
discretion by imposing the presumptive sentence, we affirm the sentence. We do not
analyze additional issues that Wiley-Hunt raises without sufficient briefing.
FACTS
In November 2019 Minneapolis police responded to a report of shots fired outside
a downtown Minneapolis nightclub. They found a man on the ground, shot in his stomach.
A woman identified herself as the man’s girlfriend and described the shooter as a five-foot-
nine, light-complected black man between twenty and thirty years old. Police searched the
area and collected a shell casing. They viewed security-camera footage that depicted the
victim in a fight with a man wearing a black “hoodie,” a white shirt, and jeans. It shows
the hooded man entering a silver Chevrolet Trailblazer and then running back toward the
nightclub. It depicts two men chasing the victim around the corner , the victim dropping
suddenly to the ground , and the crowd scatter ing. A witness heard a gunshot just before
watching a man in a black hoodie running away while shoving a gun under his clothing.
Video footage captured hours after the shooting depicts the man wearing the black hoodie
entering an apartment complex around the corner from the shooting.
Investigating officers discovered a social-media image of Wiley-Hunt taken around
the time and place of the shooting . In it, Wiley-Hunt was wearing a black hoodie, white
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shirt, and jeans. They also learned that Wiley-Hunt owned the silver Trailblazer and that
his girlfriend lived in a unit in the apartment complex that the hooded man fled into.
Police obtained and executed a warrant to search the apartment. Inside a hamper
they found a handgun hidden beneath men’s clothes and a plastic baggie containing
marijuana. A ballistics expert determined that the handgun fired the bullet associated with
the shell casing police found at the scene. The state charged Wiley-Hunt with second-
degree assault with a deadly weapon and possessing a firearm as an ineligible person.
At trial, the state offered testimonial and physical evidence supporting the events
just described. This evidence included a photograph police took of the baggie of marijuana
inside the hamper where they found the gun. The prosecutor asked the testifying officer to
describe the image, which she did. Defense counsel did not object.
Wiley-Hunt did not testify. In making a record of Wiley-Hunt’s decision not to
testify, defense counsel told Wiley-Hunt that the judge would instruct the jury not to hold
his silence against him. The prosecutor clarified by asking the court to inquire whether
Wiley-Hunt wanted a no-adverse-inference instruction. Wiley-Hunt’s attorney asked
Wiley-Hunt whether he wanted the instruction, and, on his attorney’s recommendation,
Wiley-Hunt responded, “Sure.” The district court instructed the jury accordingly.
During closing argument, defense counsel challenged the validity of the expert’s
shell-casing match, pointing to what he asserted were inconsistencies. The prosecutor
rebutted the argument, telling the jury that what the attorneys say is not evidence and
describing the expert’s testimony as “unrefuted.” Neither party objected to the other’s
closing statements or requested curative instructions.
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The jury found Wiley-Hunt guilty on both charges. Before sentencing, Wiley-Hunt
moved for a downward dispositional departure, seeking probation. The district court denied
the motion and imposed a guidelines prison sentence of 60 and 57 months for the
convictions, respectively, to be served concurrently.
Wiley-Hunt appeals.
DECISION
Wiley-Hunt challenges his convictions. He maintains that the district court
erroneously gave the no-adverse-inference instruction and that the prosecutor committed
misconduct by presenting the marijuana evidence and referring to the state’s ballistics
testimony as “unrefuted.” He asserts alternatively that the district court erroneously denied
his motion for a sentencing departure, and he adds other contentions in a supplemental
brief. For the following reasons, we conclude that none of his arguments merits reversal.
I
We are not persuaded by Wiley-Hunt’s contention that the district court’s no-
adverse-inference instruction requires us to reverse. He asserts that the district court gave
the instruction erroneously by failing to secure his clear consent and insistence. Because
he did not object to the instruction at trial, we scrutinize only under our plain-error standard
of review, in which we will reverse only if a plain error impacted substantial rights. State
v. Crowsbreast, 629 N.W.2d 433, 437 (Minn. 2001). We will not deem an error “plain”
unless “it is clear or obvious, which is typically established if the error contravenes case
law, a rule, or a standard of conduct.” State v. Webster, 894 N.W.2d 782, 787 (Minn. 2017).
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We resolve Wiley-Hunt’s challenge here based on our conclusion that he has not identified
an error that is plain.
Wiley-Hunt contends that giving the instruction was plain error because it
contravenes caselaw. He relies on the supreme court’s holding that the district court errs if
it gives a no-adverse- inference instruction without a defendant’s “clear consent and
insistence,” as stated in McCollum v. State, 640 N.W.2d 610, 617 (Minn. 2002), and State
v. Gomez, 721 N.W.2d 871, 880 (Minn. 2006) (quotation omitted). But caselaw, including
McCollum and Gomez, does not outline what communication is necessary to constitute
either a defendant’s “clear consent” or his “insistence.” It therefore could not have been
clear and obvious to the district court, and it is not clear and obvious to us, that Wiley -
Hunt’s verbal declaration of “sure,” after being advised by counsel, fails to meet the clear-
and-insistent requirement. We are not persuaded otherwise by Wiley- Hunt’s emphasis on
his attorney’s incorrectly suggesting that the instruction was automatic. The prosecutor
corrected the misstatement by ensuring that Wiley-Hunt was directly asked whether he
wanted the instruction. We hold that the district court did not commit plain error by giving
the instruction.
II
We are likewise unconvinced by Wiley-Hunt’s contention that the prosecutor
committed reversible misconduct by introducing the marijuana-related evidence and by
referring to the firearm expert’s opinion as “unrefuted.” We review allegations of
unobjected-to prosecutorial misconduct under a modified plain-error standard. State v.
Ramey, 721 N.W.2d 294, 302 (Minn. 2006). Under this standard, if the appellant
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establishes that the misconduct was both error and plain, “[t]he burden then shifts to the
State to demonstrate that the error did not affect the defendant’s substantial rights.” State
v. Carridine, 812 N.W.2d 130, 146 (Minn. 2012). If the state does not meet its burden, we
would then determine whether to address the error “to ensure fairness and the integrity of
the judicial proceedings.” State v. Davis, 735 N.W.2d 674, 682 (Minn. 2007) (quotation
omitted). We need not consider whether the prosecutor’s statements constitute plain error
here because, even if they do, the state has shown that the purported misconduct did not
affect Wiley-Hunt’s substantial rights.
The state emphasizes the overwhelming evidence of Wiley-Hunt’s guilt and the
minimal effect the alleged misconduct could have had on the verdict. The state meets its
burden when it shows “that there is no reasonable likelihood that the absence of the
misconduct in question would have had a significant effect on the verdict of the jury.” State
v. Dobbins, 725 N.W.2d 492, 508 (Minn. 2006) (quotation omitted). In determining
whether an error was prejudicial, we consider the pervasiveness of the conduct, the strength
of the state’s case, and whether the defendant had the chance to rebut the improper remarks.
State v. Peltier, 874 N.W.2d 792, 805–06 (Minn. 2016). Wiley- Hunt concedes that the
alleged misconduct was not pervasive, so we consider only the strength of the state’s case
and Wiley-Hunt’s opportunity for rebuttal.
The record plainly contradicts Wiley-Hunt’s assertion that the state’s case was
weak. The circumstantial evidence overwhelmingly supports the jury’s guilty verdict. The
shooter, who was wearing the same color and type of clothing that Wiley-Hunt was wearing
the night of the shooting and whose video depictions and witness description closely match
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Wiley-Hunt’s appearance, got into and out of the Trailblazer that Wiley-Hunt owns and
fled into an apartment complex where Wiley- Hunt’s girlfriend lives, concealing inside a
hamper and under men’s clothing in Wiley-Hunt’s girlfriend’s apartment the handgun that
he used to shoot the victim. It is true, as Wiley-Hunt observes, that the state did not find
Wiley-Hunt’s DNA on the handgun. Given the extraordinarily probative circumstantial
evidence pointing to Wiley-Hunt as the shooter, the lack of DNA evidence is of little
consequence. The evidence supporting the state’s case was compelling.
Wiley-Hunt also contends unpersuasively that the misconduct was impossible to
rebut. His counsel had the opportunity to emphasize that possessing a small amount of
marijuana has no logical relationship to whether Wiley- Hunt was the shooter, and we do
not believe that the marijuana evidence would impact a reasonable juror’s assessment of
guilt on the charged offenses. As for the isolated “unrefuted” comment, the district court’s
proper instructions outlining and emphasizing the state’s burden of proof stood against any
implication that Wiley-Hunt had the burden to refute the state’s evidence. And Wiley-Hunt
had the opportunity either to highlight the state’s burden or to seek a curative instruction
after the prosecutor’s comment. That he failed to seek a curative instruction weighs against
reversing. See State v. Washington, 521 N.W.2d 35, 40 (Minn. 1994). We add that this is
not a close case where we would consider whether multiple errors might have cumulatively
affected the verdict wh ere, separately, they did not. See State v. Fraga, 898 N.W.2d 263,
278 (Minn. 2017). On balance, we easily conclude that any alleged misconduct did not
impact Wiley-Hunt’s substantial rights.
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III
We also hold that the district court did not inappropriately deny Wiley-Hunt’s
motion for a downward dispositional sentencing departure. We review a district court’s
sentencing decision for an abuse of discretion. State v. Soto, 855 N.W.2d 303, 307–08
(Minn. 2014). A district court may—but is not obligated to— depart from a presumptive
sentence when “identifiable, substantial, and compelling circumstances” justify doing so.
Minn. Sent’g Guidelines 2.D.1 (2019); Soto, 855 N.W.2d at 308. We afford this deference
to the district court because a guidelines-generated sentence is presumed to be correct,
sentencing departures are by design atypical, the district court is not bound to give reasons
justifying its denial of a departure motion, and the district court is not required to depart
even when the circumstances would allow it to do so. Soto, 855 N.W.2d at 308; State v.
Abrahamson, 758 N.W.2d 332, 337 (Minn. App. 2008), rev. denied (Minn. Mar. 31, 2009);
see also State v. Johnson, 831 N.W.2d 917, 925 (Minn. App. 2013) (“The district court is
not required to explain its reasons for imposing a presumptive sentence.”). The supreme
court accurately predicted in dicta that it would be a “rare” occasion when an appellate
court would reverse the district court’s decision to impose a presumptive sentence under
the guidelines. State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981). Wiley-Hunt fails to
demonstrate that this is one of those unusual cases.
Wiley-Hunt says that he should have been granted a dispositional departure in part
because he is amenable to probation. A district court may grant a dispositional departure
based on a defendant’s particular amenability to probation. State v. Trog, 323 N.W.2d 28,
31 (Minn. 1982). Wiley-Hunt’s probation-amenability assertion is belied by the fact that
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he was already on probation for two other felonies at the time he committed these crimes.
And the district court knew that Wiley-Hunt has a substantial criminal history that includes
violent and firearms-related offenses and that his probation officer believed that he poses
a danger to public safety. The district court acted within its discretion by imposing the
presumptive guidelines sentence.
IV
Wiley-Hunt raises three supplemental arguments, which are forfeited for lack of
proper briefing. He contends that his right to confront his accuser was violated, that he “did
not receive his conditions of release in the courtroom,” and that his right to a speedy trial
was violated. Arguments not supporte d by authority are waived. State v. Andersen, 871
N.W.2d 910, 915 (Minn. 2015). Wiley- Hunt fails to support his first two arguments with
legal authority or clear argument, and we do not consider them. Regarding his speedy-trial
contention, he offers no argument discussing the reason for the delay, his assertion of the
right, and the prejudice to him, as outlined in Barker v. Wingo, 407 U.S. 514, 530 (1972).
We therefore will not analyze the undeveloped assertion that the timing of his trial violated
his rights.
Affirmed.