This opinion will be unpublished and

may not be cited except as provided by

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






State of Minnesota,





James Artey Scott,



Filed November 14, 2000


Mulally, Judge*


Hennepin County District Court

File No. 98011174


Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN  55103-2106; and


Amy Klobuchar, Hennepin County Attorney, David C. Brown, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN  55487 (for respondent)


John M. Stuart, State Public Defender, Lawrence W. Pry, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN  55415 (for appellant)


            Considered and decided by Judge Toussaint, Chief Judge, Forsberg, Judge,** and Mulally, Judge.

U N P U B L I S H E D  O P I N I O N




Appellant James Arthur Scott challenges his conviction for second-degree felony murder.  Because the circumstantial evidence was sufficient to form a chain of events that lead so directly to the guilt of Scott as to exclude beyond a reasonable doubt any reasonable inference other than guilt, we affirm.


            On February 1, 1998, the police were dispatched to 6461 Zane Avenue to treat 22 month-old A.C., who was not breathing.  That morning, Amea Oliver, A.C.’s mother, woke up early with A.C., who on January 22, 1998, had been diagnosed with indirect lung disease.  A.C.’s condition had been improving and Oliver testified that she was not having problems breathing that morning. 

Some time that morning Oliver and defendant James Arthur Scott had a heated discussion regarding Scott’s unemployment situation and whether to get a larger apartment.  On January 5, 1998 Scott moved in with Oliver to help her raise their son, J.S.  Oliver and Scott had disagreements over how she disciplined her other children, D.C., age 5 and T.C., age 3 and A.C.  Her lack of discipline of A.C. particularly bothered Scott because he believed Oliver favored A.C. and that Oliver let her “get away with murder.” 

At approximately 1:00 p.m. on February 1, 1998, Oliver left the apartment to go pick up a newspaper so that they could look for a new apartment and Scott could look for a job, leaving the children, including A.C., in Scott’s care.  Oliver testified that when she left the apartment the environment was hostile due to their argument.  She was out of the apartment for approximately 15-20 minutes.  When Oliver returned, she had to knock on the door because she left her keys inside the apartment.  Although she heard D.C. tell Scott that there was someone at the door, he did not respond for 3-5 minutes.  When Scott finally opened the door he told Oliver that something was wrong with A.C. 

Oliver, who was carrying the newspaper and a bag of purchased items, went directly to the children’s bedroom, where A.C. was lying on the toddler bed, her arm hanging off the bed.  Scott then placed her in Oliver’s arms.  Oliver thought she heard A.C. gasping for air so she handed A.C. over to Scott, who was in the master bedroom, and went to get the nebulizer prescribed for A.C.’s respiratory problems.  When the nebulizer did not work after one minute, she went to call 911 and Scott took A.C. to the living room.  When she returned from making the call to 911, Scott was conducting CPR on A.C.

At approximately 1:46 p.m., Officer William Barrit responded to the call. William Acker, a paramedic, arrived shortly thereafter.  Scott told Acker that A.C. came out of her bedroom holding her throat, acting like something was obstructed in her throat.  Acker inserted a laryngoscope to look into A.C.’s throat.  Other than vomit that he suctioned out, he did not find anything causing an obstruction in her throat; they were able to intubate easily.  Acker testified that because you can see right through the throat with a laryngoscope and the suction equipment removes any obstruction, an obstruction of the airway was unlikely.  A.C.’s heart appeared to be in asytole (flatlined).  She was then transferred to the hospital.

At North Memorial Hospital, Dr. Patrick Lilja examined A.C. in the emergency room.  He testified that he reintubated A.C. and there was no indication of an obstruction.  After continued attempts to revive A.C., Dr. Lilja decided to terminate resuscitation efforts and she was pronounced dead.  Dr. Lilja was not familiar with A.C.’s medical history, but he believed that she could not have died of respiratory distress due to her previous illness because children in respiratory distress deteriorate slowly over a period of time and do not collapse suddenly.  In addition, he concluded that the bruises found throughout her body were not consistent with those caused by improperly administered CPR because they were in the wrong positions.

Both Oliver and Scott were questioned by the police.  Officer Bradley St. James testified that Scott told him his name was Eddy James Scott and that he did not live in the home but had been there since 4 p.m. the day before.  Officer St. Marie also questioned Scott.  The first time Scott made a statement to Officer St. Marie he stated that A.C. entered the hallway from her room and before she collapsed, she was patting her throat and saying, “ah, ah, ah,” as if she were choking.  However, during his second statement to the police, he stated that he first answered the door and when he returned, A.C. had already collapsed.  In addition, Officer St. Marie overheard Scott giving a detective a work number different from the one he had given him; when Officer St. Marie asked Scott if he could repeat the work number he gave him earlier, Scott admitted he could not. Officer St. Marie also testified that Scott mentioned that D.C. told him that A.C. had put buttons in her mouth.

Detective Craig Enevoldsen, who also questioned Scott, testified that Scott identified himself as Eddy James Scott, but later admitted his name was James Arthur Scott.  Scott also told Det. Enevoldsen that he had arrived from Chicago the day before, but later said he had been living with Oliver for one week.  Scott told Det. Enevoldsen that Oliver never disciplined A.C., but on February 4, 1998 contacted Det. Enveoldsen and stated that Oliver had disciplined A.C. with a black shoe.  He volunteered to wear a wire and confront Oliver.

On February 2, 1998, Dr. Andrew Baker and Dr. Daniel Davis, forensic pathologists, performed an autopsy of A.C.’s body.  Dr. Baker testified that he saw bruises on A.C.’s chest and right and left abdomen.  As a result, a video tape was made of Scott illustrating how he conducted CPR on A.C.  Dr. Baker concluded that maybe a few, but not all of these scars could be caused by CPR because: (1) he had never seen such extensive bruising caused by CPR; (2) there were no rib fractures; (3) there were no bruises in the sternum; and (4) upon review of the tape illustrating the CPR performed by Scott, it did not appear that it would have resulted in the number and distribution of the bruises found on A.C. 

Dr. Baker also found bruises on A.C.’s back, thighs, buttocks, and behind her knee; he believed these are not places were toddlers normally bruise themselves.  He also found three circular scars, of the same size, on A.C.’s forehead and knee, which he concluded were healed cigarette burns.  An examination of A.C.’s liver showed an internal injury in the form of ripping or tearing, but he did not believe this is what caused her death because she died before the liver continued to bleed.  Dr. Baker also excluded fat embolism syndrome as the cause of her death.  Finally, he found no obstruction in her lungs or throat.  Dr. Baker concluded that A.C.’s liver injury and the number and size of the injuries on her chest suggest that she was squeezed, which stopped her lungs from expanding and resulted in fingertip-type bruises.  In the alternative, he concluded she could have died from commotio cortis, instantaneous stopping of the heart, due to a blow in the chest.  Dr. Baker concluded, to a degree of medical certainty, that A.C. died from asphyxia caused by homicidal violence.

Dr. Daniel Davis’s testimony was consistent with Dr. Baker’s.  Both conducted the autopsy, with Dr. Davis supervising Dr. Baker.  Dr. Davis examined the lungs and found that no respiratory ailment contributed to A.C.’s death.  He testified that the findings of Dr. Karen Kelly, a specialist who also examined the lungs, was consistent with his findings.  Dr. Davis similarly observed the bruising, and testified that CPR rarely causes bruises and certainly not to the extent seen on A.C.  Instead, Dr. Davis testified that the round bruises on the chest and upper abdomen were consistent with fingertip-type bruises and significant forceful compressions from a possible blow to the chest that instantly stopped the heart. He concluded that A.C. died from an interruption of her breathing/circulation.


Scott argues that there was insufficient evidence to find that he was guilty of second-degree murder pursuant to Minn. Stat. § 609.19, subd.2(1) (1996) because the evidence was circumstantial.  A conviction “based entirely on circumstantial evidence merits stricter scrutiny than convictions based in part on direct evidence.”  State v. Jones, 516 N.W.2d 545, 549 (Minn. 1994) (citations omitted).  The circumstantial evidence must

form[ ] a complete chain that, in view of the evidence as a whole, leads so directly to the guilt of the defendant as to exclude beyond a reasonable doubt any reasonable inference other than guilt. 


Id.  A jury, however, is in the best position to evaluate circumstantial evidence, and its verdict is entitled to due deference.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  Criminal bench trials are reviewed the same as jury trials when determining whether the evidence is sufficient to sustain the verdict.  Davis v. State, 595 N.W.2d 520, 525 (Minn. 1999) (citation omitted).

In order for Scott to be found guilty of second-degree murder, the state must prove that he

cause[d] the death of a human being, without intent to effect the death of any person, while committing or attempting to commit a felony offense other than criminal sexual conduct in the first or second degree with force of violence or a drive-by shooting.


Minn. Stat. § 609.19, subd. 2(1).  Scott argues that all the evidence against him is circumstantial because no one saw him commit any act against A.C.  But a conviction may rest entirely upon circumstantial evidence and is entitled to as much weight as direct evidence.  State v. Moore, 481 N.W.2d 355, 360 (Minn. 1992).

            Here, the evidence shows that A.C. was not having problems breathing when Oliver left her in Scott’s care for 15-20 minutes.  When Oliver returned from buying the newspaper, Scott did not open the door for at least 3-5 minutes, even though she heard D.C. tell Scott that someone was at the door.  When Scott finally opened the door, A.C. was lying on her bed and appeared not to be breathing. 

Upon questioning by the police, Scott lied about his name, his work number, and how long he had been living with Oliver.  Scott also gave the police inconsistent statements as to where A.C.’s body was when he first noticed she could not breathe.  First he claimed that he saw her collapse in the hallway, but later he stated that he saw her lying on the hallway floor after he opened the door.  Neither of these inconsistent statements is consistent with Oliver’s statement that she went directly to the bedroom where she found A.C. lying on the bed.  Oliver’s testimony is corroborated by the photographs in the record, which show the newspaper and hairspray Oliver was carrying lying on the floor next to A.C.’s bed.           

Oliver testified that when she left the apartment to pick up the newspaper the situation was already tense between Scott and herself.  She further testified that Scott did not approve of how she disciplined A.C. because he believed Oliver “let her get away with murder.”  Scott believed that she paid more attention to A.C. than to his son, J.S. 

A.C.’s autopsy revealed that she had extensive bruising throughout her body not normally found on toddlers, a tear in her liver, and nothing was found lodged in her throat or lungs.  The bruises were found to be “fresh” and looked like fingertip marks.  The forensic pathologists who conducted the autopsy excluded respiratory ailments and fat embolism syndrome as the cause of death.  They also stated that it was highly unlikely that she stopped breathing due to either (1) having an obstruction in her throat, or (2) improperly-administered CPR.  They concluded, to a degree of medical certainty, that A.C. died from asphyxia due to either squeezing or a blow to the chest.  Dr. Baker, one of the two forensic pathologists concluded that A.C. was the victim of homicidal violence. 

Scott claims, however, that the circumstantial evidence is insufficient to prove his guilt because the evidence supports two alternative theories for how A.C. died.  See Jones, 516 N.W.2d at 549 (stating circumstantial evidence must form a complete chain that excludes beyond a reasonable doubt any reasonable inference other than guilt).  First, Scott claims that D.C. showed him some buttons that supposedly A.C. had in her mouth; Scott suggests that the buttons could have lodged in her airway, interfering with her breathing.  Scott notes Dr. Davis acknowledged that if A.C. had been squeezed in an effort to dislodge the button, the squeezing could have resulted in lack of oxygen to the lungs, causing her death.  While Dr. Davis hypothesized that A.C. could have died in this manner, it was premised on a button being lodged in her airway.  However, the forensic pathologist who performed the autopsy, the emergency room doctor who treated A.C., and the paramedic who intubated A.C., all testified that there was no button lodged in her airway.

Next, Scott argues that Dr. Davis acknowledged that incorrectly administered CPR could have interfered with her circulation and caused her death.  But the forensic pathologists ultimately concluded, upon examining the number of bruises, their size, the lack of rib fractures, and the videotape of Scott administering CPR, that it was unlikely that improperly administered CPR caused her death. 

A.C. did not have difficulty breathing when her mother left her with Scott, the only adult in the home.  When Oliver returned, A.C. could not breath and died shortly thereafter of “homicidal violence.”  In light of the evidence in the record, the circumstances form a chain of events that leads so directly to the guilt of Scott as to exclude beyond a reasonable doubt any reasonable inference other than guilt.

Scott also claims the prosecution failed to prove that he committed a felony.  Specifically, he argues that: (1) even if he committed an act that caused A.C.’s death, at most, he is guilty of malicious punishment of a child and the conviction should be reduced to first-degree manslaughter; (2) because the trial court erroneously considered the result of the assault in determining whether it resulted in “great bodily harm”, the evidence is insufficient to prove that he committed felony-assault; and (3) the felony and the resulting death are distinct elements and both must be proved beyond a reasonable doubt.  In addition, Scott argues, pro se, that: (1) his attorney failed to introduce D.C.’s out-of-court statements to the police; (2) at the sentencing hearing it was incorrectly stated that he went to prison for a probation violation; and (3) a prior felony possession of a firearm charge in Georgia was erroneously introduced at trial as a conviction. 

Because we conclude that the circumstantial evidence was sufficient to form a chain of events that lead so directly to the guilt of Scott as to exclude beyond a reasonable doubt any reasonable inference other than guilt, we need not address these claims.




*  Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.

**  Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.