This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).







State of Minnesota,





Sean NMN Carter,




Filed September 25, 2001


Halbrooks, Judge


Hennepin County District Court

File No. 98079916



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


Amy Klobuchar, Hennepin County Attorney, Jean E. Burdorf, Assistant County Attorney, C-2000 Government Center, 300 South 6th Street, Minneapolis, MN 55487 (for respondent)


John M. Stuart, State Public Defender, Marie Wolf, Assistant Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN 55414 (for appellant)




            Considered and decided by Kalitowski, Presiding Judge, Klaphake, Judge, and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant was convicted of first- and second-degree assault, reckless driving, and giving a false name to a police officer.  Appellant challenges the conviction on the ground that there was insufficient evidence to prove that he had the requisite intent to commit an assault.  Appellant also contends that there was insufficient evidence to prove off-duty officers providing security were engaged in the “performance of a duty imposed by law.”  Finally, appellant argues the jury’s verdict of guilty of assault was legally inconsistent with a guilty verdict on reckless driving.  We conclude that the verdict was not legally inconsistent.  Further, because the evidence is sufficient to support a finding of intent and that the officers were engaged in a legal duty, we affirm. 


            On August 8, 1998, several Minneapolis police officers worked as off-duty security guards at the “Players Ball,” an event held at the Minneapolis Convention Center.  Although they were off-duty, all officers were armed and in uniform.

            Shortly after the ball ended, around 1:00 a.m., the officers were alerted to a fight outside the convention center.  The fight was in an area by a white Lincoln, which was parked on the sidewalk in front of the convention center.  Officers Charles McCree and Jonathan Beecham attempted to restrain the participants, several of whom got into the Lincoln and drove away.  As the Lincoln was leaving, McCree saw a red Chevrolet “jump” the sidewalk and veer in the direction of several pedestrians.  McCree ran toward the vehicle, drew his gun, and yelled, “Stop, police.”  The vehicle reversed and then came directly at McCree.  The driver threw a bottle out his window.  McCree jumped out of the vehicle’s path when it was only a few feet away to avoid being struck.  The vehicle then continued toward Beecham, who had also drawn his weapon.  It came within five to ten feet of hitting Beecham before Beecham jumped out of the vehicle’s path.  The vehicle then sped away.

            The driver, appellant Sean Carter, was stopped shortly after this incident.  After he initially gave false information to the investigating officer, appellant was arrested and brought to the Hennepin County Jail.  Sgt. Thomas O’Rouke interviewed appellant, who claimed that he had driven erratically to avoid being caught in a crossfire after several individuals in front of the convention center drew guns.  Appellant admitted giving the arresting officer a false name, but denied seeing any police officers at the convention center or throwing a bottle.  Appellant was charged with two counts of assault in the first degree while an officer was engaged in a duty imposed by law, two counts of assault in the first degree while using a dangerous weapon, and one count of giving false information to a police officer.

            A jury trial was held.  The state called both McCree and Beecham.  Both officers testified that they were armed and in uniform.  McCree testified that he ran toward the red vehicle because he believed that appellant’s conduct was endangering pedestrians.  McCree stated that if he had not jumped out of the vehicle’s way, appellant would have hit him.  Beecham corroborated McCree’s testimony, noting that from Beecham’s vantage point, McCree was “trying to evade from being hit but yet still trying to make sure that this vehicle doesn’t hit anyone else also.” 

The officers testified that, although they were off-duty, they still had to follow standard police policies and regulations because they were in uniform.  The state introduced the Minneapolis police department’s policy into evidence, which confirmed the officers’ testimony on that point.  The state also called O’Rouke, who testified about his interview with appellant.  An audiotape of that interview was introduced into evidence and played for the jury. 

Finally, the state called John Lafferty, a manager for the convention center.  Lafferty testified that he saw appellant’s vehicle go up onto the curb, back into the valet area, over an island in the street, and then take off through traffic.  He also testified that he saw the officers draw their weapons and order appellant to change his course.  Lafferty corroborated the officers’ testimony that McCree would have been harmed had he not moved out of appellant’s way.

            Appellant called two witnesses.  The first was Charles Pigrum, who had been at the convention center that evening and had witnessed the incident.  Pigrum testified that he met appellant while they were both in Hennepin County jail after the ball.  Pigrum testified that he agreed to testify on appellant’s behalf after hearing his story and noted that appellant told him that he had never intended to run over a police officer.  According to Pigrum, because of the chaos and lack of lighting that night, identifying an individual as a police officer would have been difficult.  Pigrum testified that appellant “didn’t do anything wrong but drove off from the scene where he was at.”

The second witness was appellant’s friend, Torrance Gray, who had attended the ball with appellant and had been a passenger in his vehicle.  Gray testified that he had urged appellant to drive away as quickly as possible because he saw the driver of the Lincoln brandishing a gun.

            Finally, appellant testified on his own behalf.  He stated that after the ball, he and his friend were caught in traffic.  He saw the driver of the Lincoln pull out a gun after a woman cracked the vehicle’s windshield.  Appellant testified that he and his friend decided to get out of the way as quickly as possible, but to do so, he had to drive his car onto the sidewalk.  Appellant claimed that, while there were people in the area, he never saw anyone directly in front of him.  Appellant admitted that he had dropped a bottle out his window.

            Before the case was submitted to the jury, appellant asked the court to include a lesser offense of reckless driving in the jury instructions.  Over the state’s objection, the court allowed the jury to consider this offense in addition to the other counts.

            The jury found appellant guilty of one count of first-degree assault, one count of second-degree assault, one count of giving false information to the police, and one count of reckless driving.  Appellant was found not guilty of one count of first-degree assault and one count of second-degree assault.  Appellant was sentenced to 120 months, the mandatory minimum sentence for assaulting a police officer.  Minn. Stat. § 609.221, subd. 2 (1998).  This appeal follows.



Appellant first contends that there is insufficient evidence to support the jury’s finding that he intended to assault McCree.  In considering a challenge to the sufficiency of the evidence, we carefully review the record to determine whether the evidence, when viewed in the light most favorable to the conviction, is sufficient to have allowed the jury to reach the verdict that it did.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  This court must “assume the jury believed the prosecution’s witnesses and disbelieved any contrary evidence.”  State v. Ashby, 567 N.W.2d 21, 27 (Minn. 1997).  We recognize that the jury is in the best position to evaluate all the evidence, including the circumstantial evidence.  State v. McBroom, 394 N.W.2d 806, 810 (Minn. App. 1986).  We 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 have reasonably concluded that the defendant was guilty of the charged offense.  State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).

The mere fact that the state used circumstantial evidence to prove appellant’s intent does not mean that the evidence is insufficient.  Intent is a “subjective state of mind usually established only by reasonable inference from surrounding circumstances.”  State v. Schweppe, 306 Minn. 395, 401, 237 N.W.2d 609, 614 (1975) (citations omitted).  Although “[a] conviction based on circumstantial evidence merits stricter scrutiny,” it is

entitled to the same weight as any evidence so long as the circumstances proved are consistent with the hypothesis that the accused is guilty and inconsistent with any rational hypothesis except that of guilt.


State v. Bias, 419 N.W.2d 480, 484 (Minn. 1988).  Circumstantial evidence does not need to exclude every other theory, but it must “point unerringly to the accused’s guilt.”  State v. Scharmer, 501 N.W.2d 620, 622 (Minn. 1993).  Thus, to succeed in a challenge to a verdict based on circumstantial evidence, a convicted person must point to evidence in the record that is consistent with a rational theory other than guilt.  State v. Steinbuch, 514 N.W.2d 793, 799 (Minn. 1994).

            Appellant contends that, because of the chaotic events outside of the convention center that night, it is difficult to figure out what actually happened.  But the jury is entrusted with the responsibility to determine which witnesses seemed credible and, thus, more likely to recount the event accurately.  McBroom, 394 N.W.2d at 810-11.  The jury may infer from the circumstances that appellant intended “the natural and probable consequences of his actions.”  State v. Cooper, 561 N.W.2d 175, 179 (Minn. 1997). 

Here, the jury found that the state’s eyewitnesses were more credible than appellant’s witnesses and his own testimony.  Both Beecham and Lafferty testified that appellant aimed his vehicle directly at McCree.  McCree testified that he had to move out of the way of appellant’s vehicle in order to avoid being hit.  Because the jury found this testimony more credible, it could reasonably infer from appellant’s conduct that he intended to assault McCree by driving directly toward him.  See id.  Thus, there is sufficient evidence to support the jury’s verdict.


Appellant next argues that he cannot be convicted of assaulting an officer because there was insufficient evidence to show that McCree was acting in an official capacity.  The state responds that a police officer does not lose his special status as a law-enforcement officer when he is performing off-duty activities that are sanctioned by his department.

Under Minnesota law,

[w]hoever assaults a peace officer or correctional employee by using or attempting to use deadly force against the officer or employee while the officer or employee is engaged in the performance of a duty imposed by law, policy, or rule may be sentenced to imprisonment for not more than 20 years * * * .

Minn. Stat. § 609.221, subd. 2 (1998).  Appellant contends that there is no evidence that McCree was “engaged in the performance of a duty imposed by law.”

            The Minnesota Supreme Court examined a similar argument in State v. Childs, 269 N.W.2d 25 (Minn. 1978).  In Childs, the defendant challenged the legality of his arrest by an off-duty police officer under the shoplifting-arrest statute, Minn. Stat. § 629.366 (1978).  Childs, 269 N.W.2d at 26.  The statute authorizes merchants and their employees to detain an individual suspected of shoplifting.  Minn. Stat. § 629.366.  Because the officer at the time of the arrest announced that he was acting as a police officer, the defendant argued that the officer was not a “merchant’s employee” when he made an arrest in his capacity as a peace officer; therefore, the arrest could not be justified under the shoplifting-arrest statute.  Childs, 269 N.W.2d at 27.  But the supreme court disagreed, holding that the officer did not lose the benefit of the shoplifting-arrest statute, but rather acted both “as a privately-employed security officer” and in “the additional role of a peace officer.”   Id.

The question here is whether an officer loses the “benefit” of the assault statute—deterring attacks on police officers by providing an enhanced penalty—when the officer is off-duty.  We agree with the state that McCree should not lose this benefit because, even if he was off-duty, he still had a responsibility to control the crowd and to protect pedestrians from appellant. 

Like the officer in Childs, McCree was acting in a dual capacity:  he was privately employed as a security guard, but he also could respond to an emergency situation in an official capacity.  Minnesota law empowers a police officer to make an arrest in his or her own jurisdiction regardless of whether the officer is on- or off-duty.  Minn. Stat. §§ 629.34, subd. 1, 629.40, subd. 4 (1998).  Thus, the statute gives officers the means to respond to an emergency situation such as a felony even if they are not on duty.  Moreover, the Minneapolis police department’s policy is that even when an officer is engaged in off-duty employment, “the primary duty and obligation of employees is at all times to the department.”  Further, Minneapolis off-duty officers who wear their uniforms are “subject to rules and regulations” of the department as if they were on duty, requiring them to respond to “a felony or deadly force situation.”

            Thus, McCree had a duty to respond to the “deadly force situation” that appellant created by driving his vehicle onto a sidewalk and then aiming it at McCree.  Moreover, because McCree was in uniform, appellant had no reason to believe McCree was not an on-duty officer.  Because McCree had to respond to the emergency created by appellant, he is to be treated as if he were on duty for purposes of the assault statute.


            Finally, appellant argues that the verdict is legally inconsistent because first-degree assault and reckless driving have different requisite states of mind.  To prove that appellant committed an assault, the state must show he acted with intent.  But to prove appellant drove recklessly, the state only needs to show that appellant operated his motor vehicle “in such a manner as to indicate either a willful or a wanton disregard for the safety of persons or property.”  Minn. Stat. § 169.13, subd. 1 (1998).  The state responds that the verdict is not inconsistent because the requisite states of mind are compatible.  Moreover, the state points out that, because appellant moved the court to include the reckless-driving charge as a lesser-included offense, he should not now be able to use the verdict as a basis on appeal. 

Verdicts are legally inconsistent when proof of the elements of one offense negates a necessary element of another offense.  State v. Cole, 542 N.W.2d 43, 50 (Minn. 1996).  We agree with the state that the jury’s verdict finding intent and recklessness is not legally inconsistent. 

It has been routinely held that a finding of recklessness or a similar less-than-intentional state of mind “does not preclude the possibility that a higher level of intent may be present.”  State v. Bradford, 618 N.W.2d 782, 800 (Minn. 2000); accord Cole, 542 N.W.2d at 51 (holding that the terms “recklessness” and “intent” are not mutually exclusive).  The term “reckless” refers to the risk created, not the mental intent that resulted in an act that produced fear or injury.  Cole, 542 N.W.2d at 52.

            Here, appellant could have had the requisite intent to commit an assault as well as an awareness that he was driving recklessly.  Logically, someone who aims his motor vehicle at another person with the intent to injure the person is also “consciously disregard[ing] a substantial and unjustifiable risk that * * * an offense * * * will result from his conduct.”  State v. Zupetz, 322 N.W.2d 730, 733 (Minn. 1982) (quotation omitted). 

            Appellant erroneously relies on State v. Moore, 458 N.W.2d 90 (Minn. 1990), and Zupetz to argue that recklessness and intent are incongruent states of mind.  In those cases, the defendant was charged with committing a specific-intent crime and a crime based on negligent conduct.  See Moore, 458 N.W.2d at 94 (finding intent for first-degree murder and manslaughter to be incompatible); Zupetz, 322 N.W.2d at 735 (same).  Negligence implies that the defendant was not necessarily aware of the harm his actions might cause.  Moore, 458 N.W.2d at 94 (noting that “one cannot premeditate and intend to be culpably negligent in causing the death of another”).  But if a defendant is reckless, he “is aware of the risk and disregards it.”  Cole, 542 N.W.2d at 51 (emphasis omitted) (quotation omitted).  Thus, the reckless actor has an awareness of his actions that a negligent actor does not.  Id. at 51-52.  Because appellant was not charged with a crime involving negligent conduct, Moore and Zupetz are inapplicable here.