This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. ' 480A.08, subd. 3 (1994).

STATE OF MINNESOTA
IN COURT OF APPEALS
C6-95-1674

State of Minnesota,
Respondent,

vs.

Terry Jay Bercier,
Appellant.


Hennepin County District Court
File No. 94082894

Filed July 2 ,1996
Affirmed
Toussaint, Chief Judge

Hubert H. Humphrey, III, Attorney General, 102 State Capitol, St. Paul, MN 55155 (for respondent)

Michael O. Freeman, Hennepin County Attorney, Paul R. Scoggin, Assistant County Attorney, C2000 Government Center, Minneapolis, MN 55487 (for respondent)

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

Considered and decided by Toussaint, Chief Judge, Huspeni, Judge, and Holtan, Judge.*

U N P U B L I S H E D O P I N I O N

TOUSSAINT, Chief Judge

On September 23, 1994, Terry Jay Bercier and his brother, Joe Bercier (J.B.), became engaged in an argument with Gordon Hill and Randy Pacheco. The argument soon escalated into a fight between Hill and J.B., during which a gun was produced and J.B. was shot. Seeing Pacheco fleeing the scene, Bercier concluded that he had shot J.B. and in turn began firing at him. Injured, Pacheco lay face down on the pavement. Bercier then walked up to him and began firing into his head and torso, killing him. Consequently, Bercier was charged and convicted of second-degree intentional murder.

Bercier now appeals his conviction, arguing that the evidence offered at trial was insufficient to sustain his conviction because the facts show that he acted in the heat of passion.

D E C I S I O N

Where there is challenge to the sufficiency of the evidence, this court's review

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 jurors to reach the verdict which they did.

State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989) (citation omitted). This court must assume the jury believed the state's witnesses and did not believe any evidence to the contrary. State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989). This court will reverse a conviction challenged for the sufficiency of the evidence only when the verdict is manifestly contrary to the evidence adduced at trial. State v. Strimling, 265 N.W.2d 423, 428 (Minn. 1978). An intentional murder may be mitigated to first-degree manslaughter if:

(1) the killing was done in the heat of passion; and

(2) the passion was provoked by words and acts of another such as would provoke a person of ordinary self-control under like circumstances.

State v. Buchanan, 431 N.W.2d 542, 549 (Minn. 1988) (citations omitted).

Bercier argues that because evidence offered at trial supports his claim that he acted in the heat of passion there is insufficient evidence to sustain his conviction for second-degree murder. This argument is unpersuasive.

A review of the record reveals that the jury heard testimony from a witness, Andrew McNamara, that Bercier chased the victim, fired several shots at him, and immobilized him, either because he wounded him or because the victim ran into an oncoming car. The testimony then revealed that Bercier ran up to the victim while he was lying face down on the pavement, steadied himself, and shot the victim repeatedly in the head and torso. After the shooting, McNamara testified that Bercier "turned around and casually walked back to the corner." We recognize that the testimony of McNamara focuses primarily on Bercier's conduct during and after the killing. However, conduct throughout the episode is relevant to the determination of whether Bercier manifested an intent to commit the crime. See State v. Kirch, 322 N.W.2d 770, 773 (Minn. 1982) (holding that events before and after the killing are relevant to the totality of the circumstances from which the jury may make inferences of intent). Bercier's conduct, which was testified to at trial, was such that a jury could have reasonably determined that he acted with calculated intent rather than passion. As a result, no grounds exist upon which to reverse the jury's verdict. See State v. Gurske, 424 N.W.2d 300, 304 (Minn. App. 1988) (holding that because the conduct following the killing was inconsistent with defendant's heat of passion argument, the jury's verdict convicting defendant for second degree intentional murder was reasonable). Bercier further argues that the poverty in which he grew up, is a circumstance that should mitigate the murder to manslaughter. This argument is unsupported by the record. Further, because the defe