This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).







State of Minnesota,


Gregory Allen Demmings,


Filed September 26, 2006


Wright, Judge


Ramsey County District Court

File No. K6-03-874



John M. Stuart, State Public Defender, Benjamin J. Butler, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for appellant)


Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101; and


Susan Gaertner, Ramsey County Attorney, Mitchell L. Rothman, Assistant County Attorney, Ramsey County Government Center, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN  55102 (for respondent)



            Considered and decided by Halbrooks, Presiding Judge; Willis, Judge; and Wright, Judge.


U N P U B L I S H E D  O P I N I O N


Appellant challenges his conviction of felony theft, arguing that (1) comments by the state’s expert as to the ultimate legal issue before the jury were prejudicial, (2) the jury erroneously determined that appellant had not met his burden to prove the defense of not guilty by reason of mental illness, and (3) the evidence was insufficient to prove that the value of the stolen items was more than $500.  We affirm.


On February 15, 2003, appellant Gregory Demmings was apprehended in J.C. Penney in Rosedale Center on suspicion of shoplifting.  J.C. Penney loss-prevention personnel noticed Demmings acting suspiciously and, via the store’s surveillance video, saw Demmings take several pairs of jeans and put them into a duffle bag that he was carrying.  Demmings walked toward an exit, but turned around at the door, leaving the store a few minutes later through an exit on another floor.  When J.C. Penney loss-prevention personnel approached Demmings in the mall, he began yelling profanities and claiming that he had receipts.  The duffle bag Demmings was carrying contained four pairs of FuBu jeans, five Minnesota Vikings jerseys, and three Chicago Bears jerseys from J.C. Penney.

Demmings was charged with theft of more than $500, a violation of Minn. Stat. § 609.52, subds. 2(1), 3(3)(a) (2002).  The state amended the complaint to include a second count of theft of items valued between $250 and $500 by a person with a previous conviction of offering a forged check, a violation of Minn. Stat. § 609.52, subds. 2(1), 3(3)(c) (2002).  The district court added the lesser-included offense of gross-misdemeanor theft of between $250 and $500 under Minn. Stat. § 609.52, subds. 2(1), 3(4) (2002).  Before trial, Demmings gave notice of his intent to plead not guilty by reason of mental illness.  Accordingly, a bifurcated trial was held.  See Minn. R. Crim. P. 20.02, subd. 6(2) (describing bifurcated process whereby jury in first phase considers plea of not guilty and determines whether elements of charged offense were proved and in second phase considers plea of not guilty by reason of mental illness and determines whether defendant should be excused from criminal liability).

During the first phase of the bifurcated trial, J.C. Penney loss-prevention employees who interacted with Demmings testified regarding their observations of Demmings and the value of the stolen items.  The jury also viewed the surveillance video of Demmings in the store.  Officer Dennis Mooney, who arrested Demmings after J.C. Penney staff apprehended him, testified that Demmings was calm and generally cooperative when he was taken into custody.  The jury found that the state had proved the elements of theft beyond a reasonable doubt and that the value of the stolen merchandise was more than $500.

During the second phase of the trial, the defense called Herbert Grant, a psychotherapist with whom Demmings had attended therapy sessions a few days before, and a few days after, committing the shoplifting offense.  Grant diagnosed Demmings with depression not otherwise specified and testified that Demmings’s thinking appeared logical both before and after the incident.  Grant also testified that Demmings always appeared to know the nature of his actions.

Dr. BraVada Garrett-Akinsanya, a licensed clinical psychologist and specialist in mental-health issues in the African-American community, also testified for the defense.  Dr. Garrett-Akinsanya testified that, based on Demmings’s criminal record, his prior history of treatment for mental illness, and her observations during three one-hour sessions with him, Demmings met the diagnostic criteria for bipolar II disorder with hypomanic episodes.  Dr. Garrett-Akinsanya opined that Demmings did not know the nature of his actions in part because Demmings, a tall black man, had gone into a mall wearing a long black coat and a black cowboy hat that would make him stand out.  Dr. Garrett-Akinsanya concluded that the bipolar II disorder prevented Demmings from understanding the consequences of his actions.

            Dr. Tom Grace, a psychologist from the Ramsey County Mental Health Center, testified for the state.  In Dr. Grace’s opinion, Demmings did not suffer from bipolar II disorder, nor was Demmings suffering from a hypomanic episode during the shoplifting offense.  Dr. Grace testified that, even if Demmings had bipolar II disorder, the psychological literature indicates that it would be highly unlikely that Demmings would have a “marked impairment in social or occupational functioning.”  Based on his review of Demmings’s records and the surveillance video, Dr. Grace concluded that Demmings’s case was “not a case of not guilty by reason of insanity.”

After the phase-two deliberations, the jury found Demmings criminally liable for his actions and, accordingly, guilty of theft.  This appeal followed.



Demmings argues that several comments made by Dr. Grace were so prejudicial as to require reversal of Demmings’s conviction.  Demmings maintains that Dr. Grace improperly (1) gave his opinion on Demmings’s decision to raise a defense of not guilty by reason of mental illness, and (2) commented about the legal standard for that defense.  Expert testimony is admissible if it will assist the jury in understanding the evidence or determining a fact in issue.  Minn. R. Evid. 702; State v. Ritt, 599 N.W.2d 802, 811 (Minn. 1999).  “Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.”  Minn. R. Evid. 704.  But in general, expert opinions involving legal analysis or mixed questions of fact and law are not admissible.  State v. Saldana, 324 N.W.2d 227, 230 (Minn. 1982); Safeco Ins. Co. of Am. v. Dain Bosworth Inc., 531 N.W.2d 867, 873 (Minn. App. 1995), review denied (Minn. July 20, 1995).

As an initial matter, we consider two statements to which Demmings’s counsel objected.  First, Dr. Grace referred to the facts of the M’Naghten case.  See M’Naghten’s Case, 8 Eng. Rep. 718 (H.L. 1843) (establishing test applied in cases involving pleas of not guilty by reason of mental illness).  Dr. Grace stated: “McNaughton [sic] is – it comes from a – a 19th century case where a man was out of his head with fever and killed somebody.”  Defense counsel objected, there was a bench conference, and the objection was sustained.  Second, near the end of his testimony, Dr. Grace mentioned that Minnesota has “what most people consider the highest bar for the insanity defense.”  Defense counsel objected and requested a bench conference, which resulted in the following curative instruction to the jurors:

[The] objection is sustained.  All of the testimony about the standards and the – the bar and any comparison between whatever the standards in the bar are in Minnesota and whatever else was being compared to, you are to ignore that testimony.  That is–that testimony is stricken from the record.


The district court correctly sustained the objections to these improper statements.  Any potential prejudice resulting from Dr. Grace’s comment about the legal standard for a defense of not guilty by reason of mental illness was cured by the district court’s instruction.  See State v. Davis, 685 N.W.2d 442, 446 (Minn. App. 2004) (noting that any potential prejudice was cured when, after improper remark was uttered, objection was sustained, jury was instructed to disregard the remark, and remark was stricken from the record), review denied (Minn. October 27, 2004).  As to Dr. Grace’s statement regarding the original M’Naghten case, the district court instructed the jurors at the beginning of the trial regarding their duty to ignore questions to which an objection was sustained.  We presume that the jury followed the district court’s instructions.  State v. Miller, 573 N.W.2d 661, 675 (Minn. 1998).

Demmings also challenges several other statements of Dr. Grace about the viability of Demmings’s defense to which Demmings’s counsel made no objection.  We review a district court’s evidentiary rulings for an abuse of discretion.  Bernhardt v. State, 684 N.W.2d 465, 474 (Minn. 2004).  But when no objection to the admission of evidence has been made, an appellant must show plain error that affected the appellant’s substantial rights.  Id. at 475.  An appellant “bears a heavy burden of persuasion to show that the error was prejudicial and affected the outcome of the case.”  Id. (quotation omitted).  A failure to object during trial may suggest that the remarks were not seen as objectionable.  State v. Buggs, 581 N.W.2d 329, 342 (Minn. 1998).

The first of these unobjected-to statements came in response to a question from the state inquiring whether Dr. Grace had asked Demmings if he knew right from wrong.  Dr. Grace replied by describing the process of creating reports for the district court:

            Legal sanity is defined very narrowly in the state of Minnesota.  You need to know what you were doing and that it was wrong or illegal.  And, so, when I do this last part of the interview, which is the Rule 20.02, the legal sanity part, I basically ask a person to describe what was going on . . . . 


            And the last question . . . is always, “Did you know what you were doing was wrong?”


Dr. Grace explained that Demmings advised him that he knew right from wrong but was stealing to rectify systemic social injustice of which Demmings had been a victim.  The defense did not object to this testimony.  We conclude that Dr. Grace’s statement does not rise to the level of impermissible legal analysis.  Rather, Dr. Grace was describing the process of compiling his report, which necessarily is based on the legal definition of insanity.

Other statements made by Dr. Grace are more readily construed as legal analysis.  When the prosecutor inquired whether Dr. Grace had an opinion about whether Demmings knew the nature of his actions, Dr. Grace replied: “[I]t was not my most difficult decision with regard to Rule 20.02.  There seemed to me to be no basis whatsoever for a claim of lack of legal sanity.  The McNaughton [sic] defense did not seem to apply at all to that alleged offense.”  Later, the prosecutor requested that Dr. Grace give an opinion on Demmings’s “legal sanity.”  Dr. Grace replied, “I believe that he was legally sane at the time of the alleged offense . . . [b]ecause he knew what he was doing and he knew that it was illegal.”  Finally, Dr. Grace stated that “as far as legal sanity . . . there’s nothing there . . . .  This is clearly not a case of not guilty by reason of insanity.  It’s just – there’s no doubt in my mind.”  Demmings’s counsel did not object to any of these statements. 

Dr. Grace’s opinions as to whether Demmings should have raised a defense of not guilty by reason of mental illness were improper.  See Saldana, 324 N.W.2d at 231 (holding that admission of expert’s testimony that rape had occurred was error because that testimony was a legal conclusion that was of no use to jury).  Although Dr. Grace’s statements were admitted in error, there is no significant likelihood that the statements had an impact on the verdict.  Apart from Dr. Grace’s improper comments, there was strong evidence that Demmings knew the nature of his actions and knew right from wrong.  First, Grant testified that Demmings knew the nature of his actions and was thinking logically both before and after the offense.  Moreover, the jury could evaluate Demmings’s mental state based on evidence of Demmings’s conduct in the store.  The jury watched the J.C. Penney surveillance video.  And the jury heard the testimony of loss-prevention employees, as well as the officer involved in Demmings’s arrest, indicating that, although Demmings was upset, he did not appear to misapprehend the nature of his actions. 

Demmings maintains that Dr. Grace’s comments were prejudicial because Dr. Grace was presented as a court-appointed expert.  But jurors are entitled to take into account an expert’s court-appointed status.  State v. Larson, 281 N.W.2d 481, 485 (Minn. 1979).  And the record demonstrates that the jury did not blindly adopt Dr. Grace’s opinions.  The jurors submitted a question to the district court during deliberations inquiring about the meaning of “morally wrong” as used in the jury instructions.  This inquiry supports our conclusion that the jurors independently evaluated the M’Naghten factors and were not unduly influenced by Dr. Grace’s legal analysis.  Based on the record before us, we conclude that Dr. Grace’s objectionable testimony did not affect Demmings’s substantial rights.


Demmings also makes two arguments related to the sufficiency of the evidence.  First, Demmings maintains that he presented sufficient evidence to meet his burden of proving by a preponderance of the evidence that he was not guilty by reason of mental illness.  Second, Demmings asserts that the state did not present sufficient evidence of the value of the stolen merchandise.  When reviewing a challenge to the sufficiency of the evidence, we conduct a painstaking analysis of the record to determine whether the jury reasonably could reach a guilty verdict based on the facts in the record and the legitimate inferences that can be drawn from those facts.  State v. Chambers, 589 N.W.2d 466, 477 (Minn. 1999).  In doing so, we view the evidence in the light most favorable to the verdict and assume that the jury believed the evidence supporting the verdict and disbelieved any contrary evidence.  Id. 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, reasonably could conclude that the defendant was guilty of the offense.  State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988). 


The standard for acquittal by reason of mental illness is expressed in Minn. Stat. § 611.026 (2004), which provides:

No person shall be tried, sentenced, or punished for any crime while mentally ill or mentally deficient so as to be incapable of understanding the proceedings or making a defense; but the person shall not be excused from criminal liability except upon proof that at the time of committing the alleged criminal act the person was laboring under such a defect of reason, from one of these causes, as not to know the nature of the act, or that it was wrong.


A defendant must prove mental illness at the time of the offense by a preponderance of the evidence.  State v. Odell, 676 N.W.2d 646, 648 (Minn. 2004).  In addition to proving mental illness, in order to establish the defense of not guilty by reason of mental illness, a defendant must prove that he or she did not know the nature of the act or that it was wrong.  Id.  Substantial deference is accorded to the jury’s determination about the appropriate weight to assign expert testimony about mental illness.  Id. at 648-49.

In arguing that he proved by a preponderance of the evidence that he did not know the nature of his actions or that the actions were wrong, Demmings relies on Dr. Garrett-Akinsanya’s expert testimony that he had bipolar II disorder.  But Dr. Garrett-Akinsanya was cross-examined extensively and effectively by the state.  Dr. Grace also countered Dr. Garrett-Akinsanya’s testimony, stating that, even if the diagnosis of bipolar II disorder were correct, the disorder likely would not cause any marked impairment in Demmings’s functioning.  Moreover, Grant testified that Demmings “knew what he was doing.”  Demmings invites us to reevaluate the credibility of the expert witnesses.  But as the sole judge of credibility, the jury was justified in rejecting the evidence that Demmings’s mental illness prevented him from understanding the nature of his actions and that they were wrong.

Demmings asserts that his case is similar to State v. Rawland, in which the Minnesota Supreme Court held that a defendant who does not understand that an act is ethically wrong and does not freely choose to commit the act cannot be considered guilty of the offense.  294 Minn. 17, 42, 199 N.W.2d 774, 788 (1972).  But Rawland is inapposite.  There was no testimony, expert or otherwise, that Demmings did not freely choose to commit the act of shoplifting.  Moreover, in Rawland the experts agreed that the defendant suffered from a long-standing mental illness causing psychotic delusions and that the mental illness existed at the time of the offense.  Id. at 41-42, 199 N.W.2d at 788.  The evidence here does not reflect a similar consensus of experts.  And the jury had ample bases to decide which experts’ testimony was credible. 


Finally, we consider Demmings’s assertion that the evidence was insufficient to prove that the value of the stolen items was more than $500.  “Value” for purposes of the theft statute is defined as “the retail market value at the time of the theft.”  Minn. Stat. § 609.52, subd. 1(3) (2002).  Jennifer Schafhauser, a loss-prevention employee at J.C. Penney, testified that the value of the merchandise in Demmings’s duffle bag was more than $500.  Schafhauser determined the value by looking at the price tags.  Jayne Tourville, another employee, testified that she scanned the merchandise to determine its value before restocking it.  Tourville stated that each pair of jeans was priced at $55 and that each jersey was priced at $45, for a total value of $580.  She said that the merchandise in question was not on sale because it did not have a pink or green tag indicating a sale price.

 “[T]estimony as to the price on the price tag” ordinarily is sufficient to establish retail market value.  State v. McDonald, 312 Minn. 320, 323, 251 N.W.2d 705, 707 (1977).  Such testimony may be insufficient when a defendant offers evidence that “other stores sell the item for less,” id., that “the item does not have much of a market any more,” id., or that the owner admitted that the stolen item would have been sold for less than the price-tag price, State v. Stout, 273 N.W.2d 621, 623 (Minn. 1978).  Demmings offered no such evidence here.  Although testimony from store employees established that sales were occurring on the date of the theft, their testimony also established that the items Demmings stole were not on sale.  The record demonstrates that there was sufficient evidence to permit the jurors to determine that the value of the stolen items was more than $500.