This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).






State of Minnesota,





Montay Antwone Bernard,



Filed July 25, 2000


Randall, Judge


Hennepin County District Ct.

File No. 98065597



Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and


Amy Klobuchar, Hennepin County Attorney, Linda K. Jenny, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for respondent)


Barry Voss, 527 Marquette Avenue, Suite 2355, Minneapolis, MN 55402 (for appellant)



            Considered and decided by Lansing, Presiding Judge, Randall, Judge, and Willis, Judge.

U N P U B L I S H E D  O P I N I O N



            In this appeal from his conviction and sentence for conspiracy to commit murder, appellant argues that the evidence was insufficient to corroborate accomplice testimony that he entered into plan to kill a member of a rival gang.  Appellant also argues that the trial court erred in sentencing him for conspiracy to commit first-degree murder, when he was indicted only for conspiracy to commit murder.  We affirm.


On evening of June 2, 1996, 11-year-old B.P. was shot and killed by a bullet from a passing car while playing with two friends on the front porch of his friend's home in North Minneapolis.  Two of B.P.'s friends, who were with him at the scene, gave police different information about the car from which the shots were fired, disagreeing on whether the car was red or blue.  Both said there was rust on the car and that it was driven by a black male wearing a cap. 

            Police found ten nine-millimeter bullet casings at the scene.  They determined that seven shots had come from one gun and three from another.  By matching the set of seven bullet casings found at the scene of B.P.'s murder with casings found at other recent shootings, police eventually determined that one of the guns used at the killing of B.P. had been used in three prior incidents that were part of a feud between the STOs and a rival gang called the Bogus Boyz. 

Ultimately the state claimed that appellant Montay Antwone Bernard—who was not a member of the Bogus Boyz but associated with the gang—and his co-defendant at trial, Kawaskii Blanche—who was in the gang—were in appellant's mother's maroon Nissan Maxima when they accidentally shot B.P. while executing a plan to kill Corey Scott, a member of the STO gang, in retaliation for earlier shootings.

The other shootings occurred on May 17, 1996, in St. Paul and on May 31 and June 1, 1996, in North Minneapolis.  Robert Williams and Caylon Williams were both members of the Bogus Boyz gang.  Robert Williams was shot by Corey Scott during a gunfight on May 31 while riding with Caylon Williams, Blanche and two others in Caylon's Williams's car.  After Robert Williams was shot, the others took him to the hospital, and he gave Caylon Williams the gun he had fired at Scott.  According to Robert Williams, the gun, which was never recovered, was a gray nine-millimeter Smith & Wesson he got from Caylon Williams's car. 

On June 1, while riding in his car with Kawaskii Blanche, Carlos Blanche, and Jumoke Jackson—all of whom were themselves either Bogus Boyz or associates of the gang—Caylon Williams was shot by Corey Scott in another gunfight.  The same gun was used in this shootout. 

Kawaskii Blanche and Jackson went to Robert Williams's aunt's house later that day and hid Caylon Williams's car and the gray Smith & Wessen behind the house.  Robert Williams had been released from the hospital that morning and was staying with his aunt.

That night a large group gathered at Caylon Williams's uncle's house.  While there, some of them agreed to find and kill Scott, who lived with his grandmother nearby.  Robert Williams testified that he paged appellant and appellant came over, bringing a gun.  After appellant arrived, he gave Robert Williams the gun.  Robert Williams and others went to Scott's grandmother's house to find and kill Scott, but Scott was not there.  According to Robert Williams, later that night, appellant drove Robert Williams home and, while they were alone in the car together, agreed to participate in the plan to kill Scott.

The next day, Sunday, June 2, Kawaskii Blanche, Robert Williams, Allen, and appellant met at Robert William's aunt's house.  Riding in appellant's mother's car, the maroon Nissan Maxima, they set out to visit Caylon Williams at North Memorial Hospital.  On the way, they drove around to look for Scott and saw him walking down the street near his grandmother's house.

Robert Williams testified that, while they were driving around looking for Scott, Williams had the same gun appellant had given him the night before, and Kawaskii Blanche had the gray Smith & Wesson that had been used in the earlier shootings.  Robert Williams said appellant was also armed.  After they saw Scott, appellant drove on, and Robert Williams asked to be let out of the car.  Robert Williams tried to find Scott on foot but could not.  Appellant picked him up a short distance away.

 According to Robert Williams, after he reentered the car, they drove on to the area of Willard Park, where he was let out of the car again, this time accompanied by Allen.  A police officer responded to a call about a man with a gun in the area, and Robert Williams matched the description.  Just as Robert Williams and Allen, having failed to find Scott, were ready to rejoin the others in appellant's mother's car, the police officer pulled up and appellant drove away.  The officer arrested Robert Williams and Allen.  Allen was released, but Robert Williams was arrested on felon-in-possession charges and jailed for several days. 

According to appellant and videotaped interviews with police, the group had stopped at a Burger King and were driving on to the hospital when he noticed a police car behind them.  Appellant claimed he turned around, saw that Robert Williams had a gun, ordered everyone out of the car, and drove off.  He said that he was at home on the evening of June 2 and that he had to bring his mother's car home before she got off work. 

Vanessa Gaines testified for the state.  At the time of B.P.'s murder, Duan Gaines, an associate of the Bogus Boyz, was staying with Vanessa Gaines, who was his aunt.  Vanessa Gaines testified that appellant and Kawaskii Blanche came to her house to visit Duan Gaines on the night of June 2.  She said she overheard them indicate that they may have shot a little boy by mistake during a shootout involving the STOs in North Minneapolis.  Duan Gaines corroborated this story in his grand jury testimony, but at trial, when called as a witness for the state, he denied having seen Blanche and appellant that night. 

Monta Davis, who was not in the Bogus Boyz gang, testified that he spoke to appellant about the shooting while both were in the Ramsey County workhouse in February 1998.  He claimed appellant told him that appellant and his friend had been in appellant's mother's car, with appellant driving, when they shot at Scott with nine-millimeter guns, but they soon learned they had missed and killed a child.

Appellant's mother claimed appellant picked her up from work at approximately 4:30 on the afternoon of June 2, 1996, and that they were at her house for a barbecue until 9:00 or 10:00 that night.  Appellant's mother's time card showed she worked the day before, Saturday, June 1, but not Sunday, June 2.  She claimed this was not out of the ordinary since she often worked weekends when she was not scheduled, and her manager would add the time to the next pay period. 

On June 30, 1998, a grand jury indicted appellant, Kawaskii Blanche, and David Allen.  Appellant and Blanche were each indicted on four counts: aiding and abetting first-degree murder, aiding and abetting second-degree murder, conspiracy to commit murder, and committing a crime for the benefit of a gang.  Allen was indicted for conspiracy to commit murder.  Appellant and Blanche were tried together.

At trial, the district court instructed the jury that appellant and Blanche could not be convicted based on the uncorroborated testimony of anyone who could have been charged as an accomplice, specifically naming Robert Williams and Duan Gaines as accomplices.  The jury returned verdicts convicting Blanche on all four counts and appellant on conspiracy to commit murder and crime for the benefit of a gang.  Appellant was acquitted of aiding and abetting first- and second-degree murder.

The district court denied appellant's motions for a judgment of acquittal based on insufficient evidence and, in the alternative, for a new trial based on irregularity in the proceedings by the jury.  The district court sentenced appellant to 200 months for the conspiracy conviction and 12 months and one day for the gang-crime conviction, to be served consecutively.



            Appellant claims there was insufficient corroboration of accomplice testimony to support his conviction for conspiracy to commit murder.  Review of a challenge to the sufficiency of the evidence is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in a light most favorable to the conviction, was sufficient to permit the jury to reach the verdict it did.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  The reviewing court must assume the jury believed the state's witnesses and disbelieved any evidence to the contrary.  State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).  The reviewing court will not disturb the verdict if the jury, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude the defendant was guilty of the charged offense.  State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988). 

            Conspiracy requires an agreement between two or more people to commit a crime and an overt act by one of the parties in furtherance of the conspiracy.  Minn. Stat. § 609.25, subd. 2.  An agreement constituting a conspiracy need not be proved by direct evidence, but may be inferred from the actions of the parties or other facts.  State v. Watson, 433 N.W.2d 110, 114-15 (Minn. App. 1988), review denied (Minn. Feb. 10, 1989). 

Accomplice testimony must be corroborated through other evidence tending to convict appellant of the offense.  Minn. Stat. § 634.04 (1994).  It cannot be corroborated by testimony of another accomplice.  State v. Armstrong, 257 Minn. 295, 307-08, 101 N.W.2d 398, 407 (1960).  The corroborating evidence may be circumstantial and is viewed in the light most favorable to the verdict.  State v. Bowles, 530 N.W.2d 521, 532 (Minn. 1995).  Corroborating evidence need not establish a prima facie case of guilt, and it

may be secured from the defendant's association with those involved in the crime in such a way as to suggest joint participation, as well as from the defendant's opportunity and motive to commit the crime and his proximity to the place where the crime was committed. 


State v. Ford, 539 N.W.2d 214, 225 (Minn. 1995) (quotations omitted).

The record contains substantial evidence corroborating Williams's testimony and connecting appellant with the conspiracy.  First, the record shows appellant was an associate of the Bogus Boyz who were present at Caylon Williams's uncle's house the night the group agreed to kill Scott.  Second, appellant admitted he drove the group around on June 2, when, on the way to the hospital, they went looking for Scott.  Third, the report of the police officer who arrested Williams on June 2 was consistent with Williams's, rather than appellant's version of that incident—the officer responded to a call about a man with a gun and made no mention of following a car or seeing Williams exit a car.  Fourth, the matching bullet casings from the series of shootings corroborates Williams's explanation for the chain of custody of the nine-millimeter gun used at each shooting.  Fifth, Vanessa Gaines testified that Blanche and appellant visited her nephew the night of the murder and that they indicated they had participated in the crime.  Sixth, Monta Davis testified appellant told him of his involvement in the murder, including naming the car
and guns used.  Finally, one of the boys at the scene of the murder stated the shots came from a red car driven by a young black male.

Under Ford, based on appellant's opportunity and motive to join the conspiracy and on the testimony of non-accomplice witnesses implicating him in the crime, appellant's participation in the conspiracy may be fairly inferred.  While we are mindful of appellant's arguments about the credibility of the state's witnesses, the jury heard all of counsel's attempts to impeach the state's witnesses, and we must review the jury's evaluation of the evidence, including the credibility and weight given to witness testimony, with deference.  See State v. Bias, 419 N.W.2d 480, 484 (Minn. 1988) (stating jury determines credibility and weight given to witness testimony).  Viewed in the light most favorable to the conviction, the evidence was sufficient to permit the jury to find appellant guilty of conspiracy to commit murder.

Appellant also argues that there was no basis for the jury to acquit him of aiding and abetting first- and second-degree murder and yet find him guilty of conspiracy to commit murder.  But logical inconsistency in a jury's verdicts does not entitle a defendant to relief.  State v. Netland, 535 N.W.2d 328, 331 (Minn. 1995).  The jury may simply have been exercising its power of lenity in finding appellant not guilty of aiding and abetting first- and second-degree murder.  See id. (recognizing logically inconsistent verdicts may stem from jury lenity). 
Appellant is not entitled to relief because of a claimed inconsistency between the acquittal (which he is not trying to undo) and the count on which he was convicted.


Appellant argues the district court erred by sentencing him for conspiracy to commit first-degree murder when he was convicted merely of conspiracy to commit murder.  We understand the logic of his argument, but on closer inspection, this is a challenge to the jury instructions, which did not specify that the object of the conspiracy was first-degree murder, only "murder."  Appellant did not object to this instruction; therefore, we review it only for plain error.  See State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998) (recognizing appellate court may review instruction absent objection at trial if plain error).  The district court at sentencing, when appellant did raise the issue, concluded that conspiracy to commit a murder necessarily requires forethought equivalent to "premeditation" as contemplated in the first-degree murder statute.

We need not decide this issue, except to note that the court's jury instruction, reflecting that view, was not plain error.  It was not unfair to sentence appellant for conspiracy to commit first-degree murder when the complaint cited Minn. Stat. § 609.175, subd. 2(2) (1994), the penalty provision for first-degree murder.  Appellant had the opportunity at trial to argue for a more detailed jury instruction.  See generally State v. Olson, 379 N.W.2d 524, 527-28 (Minn. 1986) (holding defendant waived claim that jury should decide fact relevant to sentencing by failing to request special interrogatory); cf. State v. Cromey, 348 N.W.2d 759, 760-61 (Minn. 1984) (remanding for resentencing despite absence of objection to general verdict where sentences for two types of second-degree murder were same at time of trial but one was later retroactively reclassified).  Appellant failed to preserve the issue by not objecting to the jury instructions.  Given the correlation between conspiracy and premeditation, we cannot find plain error.