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This opinion is nonprecedential except as provided by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
A23-1301

State of Minnesota,
Respondent,

vs.

Lionell Bailey,
Appellant.

Filed February 3, 2025
Affirmed
Cochran, Judge

Olmsted County District Court
File No. 55-CR-22-3946

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

Mark A. Ostrem, Olmsted County Attorney, James E. Haase, Senior Assistant County
Attorney, Rochester, Minnesota (for respondent)

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

Paul J. Maravigli, Special Assistant Public Defender, Minneapolis, Minnesota (for
appellant)

Considered and decided by Cochran, Presiding Judge; Ross, Judge; and Harris,
Judge.
NONPRECEDENTIAL OPINION
COCHRAN, Judge
Following a jury trial, appellant was convicted of attempted first- degree murder,
attempted second-degree murder, drive-by shooting toward a person, second-degree
2
assault, and unlawful possession of a firearm. In this appeal, appellant argues that the
evidence was insufficient to support each of his convictions except for the
unlawful-possession conviction. He also contends that he received ineffective assistance
of counsel because his trial counsel improperly conceded his guilt during closing argument.
We affirm.
FACTS
Following a shooting at a gas station parking lot, respondent State of Minnesota
charged appellant Lionell Bailey by amended complaint with several offenses including
attempted first-degree murder, attempted second-degree murder, drive-by shooting toward
a person, assault, and unlawful possession of a firearm. In the amended complaint, the
state alleged that Bailey shot at the victim by reaching his arm out through the window of
a parked car and shooting a gun as the victim ran by him. Bailey pleaded not guilty and
the case proceeded to a jury trial. The state’s evidence at trial included testimony from the
victim; gas station employees; investigating police officers; and J.B., who was the driver
of the car. The state also introduced several exhibits, including surveillance video from
the gas station and a body-worn-camera video from a police officer’s interview with J.B.
Bailey did not testify in his own defense. The testimony and exhibits at trial established
the following.
Shortly after midnight on June 15, 2022, the victim left the gas station and began
walking to his car, which was parked across the street. As he walked through the parking
lot, he “heard the pop, pop, pop.” The victim initially believed someone was exploding
firecrackers. However, after walking a few more steps into the road and hearing additional
3
shots, the victim realized that someone was firing a gun. H e then began running away.
While he was running, the victim thought he “felt something come right close to [his] gut”
two times. The victim estimated that he heard about seven shots in all, but he did not see
who fired the gun.
Investigating police officers later searched the area to look for forensic evidence,
including damage from the bullets. Officers did not find any bullets or shell casings in the
parking lot. However, officers discovered that some of the bullets from the shooting struck
a house across the street from the gas station, and they found one bullet lodged in an interior
door of the home. Forensic analysis identified it as a .38 caliber bullet, but officers could
not determine what kind of gun had discharged this bullet.
A gas station employee saw the shooting through the store window. He stated that
he saw a car pull into the parking lot and park “right in front of the entrance door of the
store.” The employee testified that “someone in the [front passenger seat] pulled a gun out
of the window and started shooting towards the road.” According to the employee, the car
left after the shooting. The employee called 911 to report the shooting and gave the
dispatcher the license plate number. The store manager provided police officers with
surveillance video from the gas station, including footage from the parking lot showing the
man seated in the front passenger seat of the car apparently shooting a gun. Shortly after
the shooting, the driver leaves the convenience store and returns to the car. The car then
drives away.
The investigating officers learned that the car involved in the shooting was
associated with J.B., and that Bailey was staying at J.B.’s home. Two days after the
4
shooting, a police officer interviewed J.B. The officer’s body-worn camera recorded this
conversation. The recording reflects that J.B. told the officer that he went to the gas station
with Bailey. He was the driver and Bailey was the only person with him in the car. J.B.
stated that he went into the store to buy some tobacco products, Bailey stayed in the car,
and then J.B. “heard gun shots” while he was still in the store. J.B. left the store, got into
the car, and drove the car back to his house. The officer asked J.B. if Bailey told him about
the shooting after they left the parking lot and J.B. responded, “I didn’t even know he had
it on him.” The officer then stated, “I don’t know why he shot at somebody.” J.B. replied,
“I think it’s paranoia . . . . I don’t know. It’s fear, I don’t know.” The officer asked J.B.
if he saw the gun. J.B. said, “[the] only time I seen it is when I got back in the car and he
had it . . . in his hand. Like on his lap. Like when you’re sitting in the car. He had it
[gesturing to his lap]. . . . And then it transpired that he was shooting[.]”
At trial, J.B. testified that he drove to the gas station with Bailey and that no one
else was in the car with them. J.B. stated that he went inside the store and that the “[n]ext
thing you know I heard shots go off.” While he was still in the store, J.B. heard Bailey
honk the horn. J.B. then returned to the car and drove home. He also testified that he did
not see the shooting.
Certain other aspects of J.B.’s trial testimony differed from his prior statement to
the officer. During direct examination, J.B. denied that he saw Bailey holding a gun upon
returning to the car. Later in his testimony, J.B. acknowledged that he originally told the
officer that he saw Bailey with a gun in his lap after the shooting. J.B. explained that he
told the officer that he saw Bailey with a gun “out of fear” and “[a]nxiety.” But he
5
maintained that he did not recall seeing Bailey with a gun when he returned to his car after
the shooting.
During cross-examination, defense counsel asked J.B. if he was afraid to admit that
Bailey was in possession of a gun while in J.B.’s car because J.B. was on probation for a
prior criminal offense at the time and it would have been unlawful for J.B. to be in
possession of a firearm. J.B. acknowledged that he had a prior conviction and did not want
to face “a new crime” for unlawful possession of a firearm. He also agreed that he did not
call 911 or report the situation himself. And during closing, defense counsel attempted to
impugn J.B.’s credibility as a witness by noting that J.B. had a “prior conviction for lying,”
was “using narcotics . . . while on probation,” and did not want to admit that he had been
in the presence of a gun due to a prior conviction. Defense counsel also argued that J.B.
was a “scared and self-interested getaway driver.” Defense counsel told the jury that Bailey
was “an easy scapegoat” for J.B. and that there was “[n]othing tying Bailey to [the
shooting] but the word of [J.B.].”
Following deliberations, the jury found Bailey guilty of all five counts. The district
court sentenced Bailey to 187 months in prison for attempted first- degree murder and to a
concurrent 60 months in prison for unlawful possession of a firearm. The district court did
not adjudicate on the remaining three charges, which were lesser-included offenses. Bailey
appealed his convictions to this court. We stayed the appeal to allow Bailey to pursue
postconviction relief on a claim of ineffective assistance of trial counsel. In his
postconviction petition, Bailey asserted that his trial counsel improperly conceded Bailey’s
6
guilt to two of the charged offenses: drive-by shooting toward a person and second-degree
assault. Following a hearing, the postconviction court denied Bailey’s petition.
We dissolved the stay and reinstated this direct appeal.
DECISION
Bailey argues that four of his five convictions must be reversed because the state
failed to present sufficient evidence to prove each of them. He also argues that he received
ineffective assistance of trial counsel. We address each argument in turn.
I. Sufficient evidence supports Bailey’s convictions.
Bailey challenges the sufficiency of the evidence of his convictions of attempted
first-degree murder, attempted second-degree murder, second-degree assault, and drive-by
shooting toward a person. He does not challenge the sufficiency of the evidence of his
conviction of unlawful possession of a firearm.
A. Standard of Review
To evaluate the sufficiency of the evidence, “appellate courts carefully examine the
record to determine whether the facts and the legitimate inferences drawn from them would
permit the jury to reasonably conclude that the defendant was guilty beyond a reasonable
doubt of the offense of which he was convicted.” State v. Griffin, 887 N.W.2d 257, 263
(Minn. 2016) (quotation omitted). An appellate court reviews the evidence “in the light
most favorable to the conviction” and “assume[s] the jury believed the State’s witnesses
and disbelieved any evidence to the contrary.” State v. Ortega, 813 N.W.2d 86, 100
(Minn. 2012) (quotation omitted).
7
When a defendant’s intent is proved by circumstantial evidence, as was done here,
an appellate court applies a “heightened two-step test.” State v. McInnis, 962 N.W.2d 874,
890 (Minn. 2021) (quotation omitted). First, we identify the “circumstances proved” by
the state. State v. Andersen, 784 N.W.2d 320, 329 (Minn. 2010). In identifying the
circumstances proved, “we assume that the jury resolved any factual disputes in a manner
that is consistent with the jury’s verdict.” State v. Loveless, 987 N.W.2d 224, 247 (Minn.
2023) (quotation omitted). “This is especially true [when] resolution of the case depends
on conflicting testimony, because weighing the credibility of witnesses is the exclusive
function of the jury.” State v. Pieschke, 295 N.W.2d 580, 584 (Minn. 1980). Next, we
independently examine “the reasonableness of all inferences that might be drawn from the
circumstances proved,” including “inferences consistent with a hypothesis other than
guilt.” Andersen, 784 N.W.2d at 329 ( quotation omitted). In so doing, we consider the
evidence as a whole and do not examine any piece of evidence in isolation. Id. at 332. To
affirm a conviction, “the circumstances proved must be consistent with guilt and
inconsistent with any rational hypothesis except that of guilt.” Id. at 330. “But we will not
overturn a conviction based on circumstantial evidence on the basis of mere
conjecture.” Id. (quotation omitted).
B. Offenses Charged
We first discuss the elements of each of the four challenged offenses and then
determine whether the evidence is sufficient to sustain the convictions under the two-step
test. To convict a defendant of a crime, the state has the burden to prove each element of
the offense beyond a reasonable doubt. State v. Burg, 648 N.W.2d 673, 677-78
8
(Minn. 2002). As discussed above, the state charged Bailey with (1) attempted first-degree
murder while committing a drive-by shooting of a person, Minnesota Statutes sections
609.17, subd. 1, .185(a)(3) (2020); (2) attempted second-degree murder, Minnesota
Statutes sections 609.17, subd. 1, .19, subd. 1(1) (2020); (3) drive-by shooting toward a
person, Minnesota Statutes section 609.66, subd. 1e(a)(3) (Supp. 2021); and (4) second-
degree assault with a firearm, Minn. Stat. § 609.222, subd. 1 (2020).
The first two offenses involve attempted murder. The statute criminalizing
first-degree murder provides, in relevant part, that whoever “causes the death of a human
being with intent to effect the death of the person or another, while committing or
attempting to commit . . . a drive-by shooting” is guilty of murder in the first degree. Minn.
Stat. § 609.185(a)(3). As to second-degree murder, the relevant statute provides whoever
“causes the death of a human being with intent to effect the death of that person or another,
but without premeditation” is guilty of murder in the second degree. Minn. Stat. § 609.19,
subd. 1(1). The phrase “[w]ith intent to” is defined to mean “that the actor either has a
purpose to do the thing or cause the result specified or believes that the act, if successful,
will cause that result.” Minn. Stat. § 609.02, subd. 9(4) (2020 ). A person is guilty of
attempted first- or second-degree murder when the person “with intent to commit [the]
crime, does an act which is a substantial step toward, and more than preparation for, the
commission of the crime.” Minn. Stat. § 609.17, subd. 1.
To prove felony drive-by-shooting, the state must prove beyond a reasonable doubt
that the person, “while in or having just exited from a motor vehicle, recklessly discharges
a firearm at or toward . . . a person.” Minn. Stat. § 609.66, subd. 1e(a)(3); see also
9
State v. Cole, 542 N.W.2d 43, 51-52 (Minn. 1996) (noting that the recklessness element
refers to the actor’s “conscious disregard” of the likely result of his action, and is not
inconsistent with a finding that a person also had the specific intent to cause the result of
his action).
Finally, for second-degree assault, the state must prove that Bailey assaulted another
person with a dangerous weapon. Minn. Stat. §§ 609.02, subd. 10 (2020) (defining assault
as “(1) an act done with intent to cause fear in another of immediate bodily harm or death;
or (2) the intentional infliction of or attempt to inflict bodily harm upon another”), .222,
subd. 1.
Bailey argues that, for each of these four offenses, the state failed to meet its burden
to prove that he shot at or towards the victim. Both attempted-murder charges require the
state to prove beyond a reasonable doubt that Bailey intended to cause the victim’s death.
Minn. Stat. §§ 609.185(a)(3), .19, subd. 1(1). “Assault” is an act done with the intent to
cause the victim fear or harm. Minn. Stat. § 609.02, subd. 10. As to the drive-by shooting
offense, a showing of intent is not required for conviction. See Cole, 542 N.W.2d at 52
(noting that the term “‘reckless’ refers to the risk created, not the mental intent which
resulted in an act which produced fear or injury”). However, the drive-by-shooting offense
does require a showing that the defendant recklessly shot a gun “toward . . . a person.”
Minn. Stat. § 609.66, subd. 1e(a)(3). Bailey contends that the evidence is insufficient for
each of these offenses because there is no evidence that he “was shooting at” the victim.
Bailey does not challenge any other element of the four offenses.
10
C. Circumstances Proved
We now turn to the circumstances proved. Assuming that the jury credited the
testimony of the state’s witnesses, and construing the evidence in the light most favorable
to the verdict, the circumstances proved are as follows. J.B. drove to the gas station with
Bailey. No one else was in the car. J.B. was the driver and Bailey was in the front
passenger seat. While J.B. was inside the store, Bailey fired several shots out of the
passenger-side car window. The victim heard someone shooting as he passed by J.B.’s car.
He was only a few steps into the road from the gas station parking lot when he realized that
someone was shooting at him and began running. The victim perceived that the bullets
passed close to him, as he “felt something come right close to [his] gut.” By the time the
victim looked behind him to see who was shooting, the car was gone. The victim heard
about seven shots. While still in the store, J.B. heard the shots and then heard Bailey honk
the horn. J.B. returned to the car and drove away. J.B. saw Bailey holding a gun on his
lap or at his side while in the car.
D. Reasonable Inferences from the Circumstances Proved
Next, we independently examine the reasonable inferences that may be drawn from
these circumstances “to determine whether the circumstances proved are consistent with
guilt and inconsistent with any rational hypothesis other than guilt.” Loving v. State,
891 N.W.2d 638, 643 (Minn. 2017) (quotation omitted). “Intent can be inferred from the
words and acts of the [defendant] before and after the incident, and from the idea that a
person intends the natural consequences of his or her actions.” Stiles v. State,
664 N.W.2d 315, 320 (Minn. 2003).
11
We conclude that the circumstances proved are consistent with guilt and that no
reasonable inference other than guilt exists. The circumstances proved show that Bailey
fired a gun toward the victim as the victim was walking from the gas-station parking lot
across the street to his parked car. When the victim realized that someone was firing a gun,
he began running. As he was running to his car, the victim felt bullets pass “close to [his]
gut.” At trial, the victim analogized the feeling of the bullets passing by to playing baseball
and stated that, “[w]hen a ball came too close, you could feel it. That’s just what it felt like
to me.” These circumstances proved support a reasonable inference that Bailey intended
to shoot at the victim.
Bailey’s actions after the shooting provide further support for this conclusion.
When Bailey stopped shooting, he immediately started honking the horn of J.B.’s car. J.B.
came out of the convenience store and drove away before the victim could see who fired
the gun. In sum, Bailey’s intent to shoot the victim can be inferred from his actions.
Bailey argues that, while these circumstances proved may support a finding of guilt,
the circumstances equally support a reasonable inference that he was aiming at the houses
across the street from the gas station, rather than at the victim. In support of this argument,
he emphasizes that one of the bullets hit a house across the street. We are not persuaded.
Bailey’s argument ignores that the circumstances proved also show that Bailey began
shooting as the victim was walking from the parking lot to his car across the street and
continued shooting as the victim ran away. This argument is also inconsistent with Bailey’s
actions immediately after the shooting, described above. Finally, the circumstances proved
12
do not support the inference that Bailey was aiming at the houses in light of the victim’s
testimony that he felt the bullets pass close to his body.
Bailey also challenges the victim’s testimony that he felt the bullets pass by him.
Bailey asserts that “[b]ullets move incredibly fast” and argues that the victim could not
have felt the bullets pass near his body. But Bailey points to no circumstance proved to
support this contention. See Andersen, 784 N.W.2d at 329 (noting that, in the second step,
an appellate court examines “the reasonableness of all inferences that might be drawn from
the circumstances proved” (emphasis added (citation omitted)). Instead, Bailey notes that
the victim acknowledged during his testimony that the sensation of feeling something pass
by his body “could have been [due to] running and [his] shirt” or his hand. But, because
this statement is inconsistent with the jury’s verdict finding Bailey guilty, we must assume
that the jury did not believe that the sensation was due to the victim’s shirt or hand. See
State v. Hawes, 801 N.W.2d 659, 670-71 (Minn. 2011) (noting that, when evaluating
convictions based on circumstantial evidence, appellate courts do not consider testimony
rejected by the jury). Accordingly, we do not consider this testimony relied on by Bailey
as part of the circumstances proved by the state.
We also reject Bailey’s reliance on this testimony because the circumstantial-
evidence standard does not allow us to “analyze and parse each fact” in a “piecemeal”
fashion to conclude that a hypothesis is reasonable. State v. Cox , 884 N.W.2d 400, 415
(Minn. 2016). And “[w]e do not set aside verdicts based on speculation.” State v.
Al-Naseer, 788 N.W.2d 469, 480 (Minn. 2010). As such, we reject Bailey’s attempts to
focus on one particular detail while ignoring the broader picture. See State v. Robertson,
13
884 N.W.2d 864, 872 (Minn. 2016) (stating that, “[w]hen viewed in isolation, the facts
cited by [the defendant] might support a rational inference other than guilt. But we view
the circumstances proved as a whole”).
In sum, it is not reasonable to infer from the circumstances proved that Bailey was
firing at the homes across the street and that the victim was merely in the vicinity of th e
shooting. The only reasonable inference, given the totality of the circumstances, is that
Bailey fired a gun at the victim. We therefore conclude that the circumstantial evidence is
sufficient to support the jury’s verdict that Bailey is guilty of attempted first-degree murder,
attempted second-degree murder, assault, and drive-by shooting.
II. Bailey received effective assistance of trial counsel.
We next consider Bailey’s argument that the postconviction court erred when it
concluded that Bailey had not demonstrated that he received ineffective assistance of trial
counsel.
A. Legal Standard
Under the United States and Minnesota Constitutions, a criminal defendant is
entitled to the assistance of counsel at trial. U.S. Const. amend. VI; Minn. Const. art. I, § 6.
This right includes the guarantee that counsel’s assistance be effective. Dukes v. State,
621 N.W.2d 246, 252 (Minn. 2001).
Appellate court s examine ineffective- assistance-of-counsel claims under the
two-prong test articulated in Strickland v. Washington, 466 U.S. 668, 685-87 (1984). See
State v. Ellis-Strong, 899 N.W.2d 531, 535 (Minn. App. 2017). To satisfy this test, an
appellant “must demonstrate that (1) his counsel’s performance fell below an objective
14
standard of reasonableness, and (2) that a reasonable probability exists that the outcome
would have been different but for counsel’s errors.” Andersen v. State, 830 N.W.2d 1, 10
(Minn. 2013). When trial counsel concedes guilt without the defendant’s consent,
counsel’s performance “is deficient,” “prejudice is presumed,” and “the defendant is
entitled to a new trial, regardless of whether [they] would have been convicted without the
admission.” State v. Luby, 904 N.W.2d 453, 457 (Minn. 2017) (quotations omitted). Under
these circumstances, a new trial would be required because counsel’s unauthorized
concession of guilt attacks “the fundamental legal principle that a defendant must be
allowed to make [their] own choices about the proper way to protect [their] own liberty,”
and creates a “fundamental unfairness.” McCoy v. Louisiana, 584 U.S. 414, 427-28 (2018)
(quotation omitted).
A concession of guilt may be express or implied. Luby, 904 N.W.2d at 457. An
implied concession of guilt occurs only when “a reasonable person viewing the totality of
the circumstances would conclude that counsel conceded the [ defendant’s] guilt.”
Torres v. State, 688 N.W.2d 569, 573 (Minn. 2004) (quotation omitted).
To determine whether trial counsel conceded a defendant ’s guilt without consent,
this court conducts a two-step review. Luby, 904 N.W.2d at 457. We first conduct a
de novo review of the record “to determine whether defense counsel made a concession of
guilt.” Id. If so, we next determine whether the defendant “acquiesced in that concession.”
Id. In conducting this review, we examine the postconviction court’s findings of fact for
clear error. See State v. Prtine, 799 N.W.2d 594, 599 (Minn. 2011) (“[T]he factual
15
elements of this legal question related to the underlying facts and circumstances of the case
are reviewed for clear error.”).
B. Defense Counsel Did Not Concede Guilt
Bailey contends that he received ineffective assistance of trial counsel because his
trial counsel conceded that an assault and a drive-by shooting of the victim had occurred.
To support this argument, he points to a portion of the closing argument in which trial
counsel discussed the assault and drive-by-shooting offenses while arguing that the state
failed to show intent for the attempted- murder offenses. During this discussion, trial
counsel stated:
[T]he target the shooter is firing at . . . is across the street, a
significant distance away from the shooter. The shooter never
steps out of the car and fires. Never pursues [the victim]. So
the question becomes did this shooter ever specifically mean
to kill anyone. No, obviously not. Because if there was that
intent, the shooter would have taken actual steps to ensure that
he even hit the target instead of just firing in the direction.
Meant to kill the target. Gotten out of the car. Ran after [the
victim]. Fired more rounds. Did this shooter commit a drive
by shooting? Yes. No question. Did this shooter commit
assault in the second degree? Yes. No question. But is this
anywhere near attempted murder? No, absolutely not.
Where’s the gun. Where’s the shooter.

(Emphasis added.)
Relying on Torres, Bailey argues that conceding “even a single element of an
offense without the defendant’s consent” amounts to a concession of a guilt, regardless of
whether defense counsel identifies the defendant as the person who committed the offense.
He notes that, in Torres, the supreme court considered “whether [the defendant’s] trial
counsel conceded guilt on any element of the two charges.” 688 N.W.2d at 573. Bailey
16
contends that, under Torres, if defense counsel concedes that an element of a crime
occurred, then a concession has been made regardless of whether the defendant was named.
A more recent supreme court opinion, which Bailey does not address in his briefing,
clarifies Torres and suggests that Bailey’s interpretation of Torres goes too far.
State v. Huisman, 944 N.W.2d 464 (Minn. 2020). In Huisman, the defendant was charged
with two criminal-sexual-conduct offenses. Id. at 466. Defense counsel conceded the ages
of the victims and the venue in closing, which were elements of the charged offenses. Id.
at 466-67. But counsel ended his closing by asserting that the state failed to prove that the
defendant was guilty beyond a reasonable doubt. Id. On appeal, the defendant argued that
he was denied effective assistance of counsel because his attorney conceded elements of
the offenses without his consent or acquiescence. Id. at 467. The supreme court disagreed,
holding that a concession on an element of an offense is not necessarily a concession of
guilt, even without the defendant’s consent. Id. at 468.
In reaching this conclusion, the supreme court addressed the language of Torres and
explained that “[we] did not say—and clarify today that we did not mean to say —that an
unconsented-to concession on any single element necessarily is a concession of guilt.” Id.
The supreme court reasoned that “[s]uch a rule would be a disincentive for the parties to
focus on the issues in dispute, and would prevent defense counsel from making what may
well be appropriate, tactical concessions.” Id. At the same time, the supreme court
declined to adopt a rule that “only a concession on each and every element of the crime is
a concession of guilt.” Id. Instead, it reviewed the facts in the record and concluded, based
on those facts, that “ defense counsel’s concessions of fewer than all of the elements was
17
not a concession of guilt.” Id. In reaching this conclusion, the supreme court noted that
defense counsel conceded certain elements that were undisputed at trial and “mounted a
vigorous defense” on the contested issue s. Id. And it further noted that defense counsel
argued throughout the trial and during closing that the defendant was not guilty of the
crimes. Id. The supreme court concluded that, in light of these circumstances, there was
no concession of guilt. Id.
Here, like in Huisman, the record reflects that defense counsel did not concede
Bailey’s guilt. While defense counsel did concede certain elements of the assault and
drive-by-shooting offenses in his closing argument, he did not concede that Bailey was the
shooter. Without naming Bailey as the shooter, we conclude there can be no concession
of guilt as to these offenses by defense counsel because a finding of guilt is necessarily tied
to a specific individual. See Minn. Stat. §§ 609.222, subd. 1 (requiring the state to prove
that the defendant acted with intent to cause fear of bodily harm with a dangerous weapon
for an assault crime), .66, subd. 1e(a)(3) (providing that the state must show that the
defendant “recklessly discharge[d] a firearm at or toward . . . a person” in a drive-by-
shooting offense); see also State v. Crump, No. A15-1690, 2016 WL 6826235, at *2 (Minn.
App. Nov. 21, 2016) (determining that, even if counsel’s statements implicitly conceded
that the victim was assaulted, “they do not suggest that [the defendant] was the person who
assaulted [the victim]”) (emphasis added)), rev. denied (Minn. Feb. 14, 2017).1

1 “Nonprecedential opinions . . . are not binding authority except as law of the case, res
judicata, or collateral estoppel, but . . . may be cited as persuasive authority.” Minn. R.
Civ. App. P. 136.01, subd. 1(c).
18
Instead, Bailey’s counsel “mounted a vigorous defense” on the issue of the shooter’s
identity. Huisman, 944 N.W.2d at 468. Counsel consistently argued throughout trial,
including in opening and closing arguments, that Bailey was not the shooter. For example,
counsel asserted in opening that Bailey was a “convenient scapegoat for a scared and
self-interested getaway driver.” And defense counsel elicited testimony from a police
officer that investigators did not find the firearm involved in the shooting, did not conduct
gunshot residue testing on Bailey, and did not collect any shell casings from the scene
relevant to the shooting. Counsel also challenged the credibility of the state’s witnesses
identifying Bailey as the shooter and confirmed, through the testimony of a police officer,
that officers did not conduct a photo lineup of the eyewitnesses. Additionally, the victim
testified that he did not see who shot at him. Finally, counsel unequivocally asserted in
closing that “Mr. Bailey is innocent of these charges unless and until the State proves
beyond a reasonable doubt that Mr. Bailey was the shooter.” Counsel concluded his
closing by stating, “I am confident you will find the State did not prove beyond a reasonable
doubt that Mr. Bailey was the shooter.”
Given the facts of this case, we are satisfied that counsel’s acknowledgement that a
shooting occurred at the gas station by “the shooter” was not a concession that Bailey was
guilty of the crimes. The record as a whole demonstrates that counsel’s primary strategy
throughout trial was to deny that Bailey was the shooter and assert that the state failed to
satisfy its burden of proof. Counsel’s partial concession was reasonable as a trial strategy
to “focus on the issues in dispute.” See Huisman, 944 N.W.2d at 468. This decision falls
within the “wide latitude” afforded to trial counsel. State v. Nicks, 831 N.W.2d 493, 506
19
(Minn. 2013) (“We give trial counsel wide latitude to determine the best strategy for the
client.”). Thus, we conclude that counsel did not concede guilt and the postconviction
court did not err when it concluded that Bailey is not entitled to a new trial on the ground
that he received ineffective assistance of counsel.2
Affirmed.

2 Because we conclude that trial counsel did not concede guilt, we need not consider
Bailey’s argument that he did not acquiesce in his counsel’s trial strategy. See Luby,
904 N.W.2d at 457 (noting that if “defense counsel made a concession of guilt,” then “the
defendant is entitled to a new trial” unless he acquiesced to the concession).