STATE OF MINNESOTA

IN COURT OF APPEALS

A05-1817

State of Minnesota,
Respondent,

vs.

Sylvester Townsend,
Appellant.

Filed August 15, 2006

Affirmed

Minge, Judge

Ramsey County District Court

File No. K6-04-3591

Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

Susan Gaertner, Ramsey County Attorney, Patrick J. Swift, Assistant County Attorney, Suite 315, 50 West Kellogg Boulevard, St. Paul, MN 55102 (for respondent)

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

Considered and decided by Toussaint, Chief Judge; Halbrooks, Judge; and Minge, Judge.

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

MINGE, Judge

Appellant challenges the sufficiency of the evidence to support his conviction of committing a crime for the benefit of a gang. Because the evidence, viewed in the light most favorable to the conviction, is sufficient to support the conviction, we affirm.

FACTS

Appellant Sylvester Townsend was convicted by a jury of theft of a motor vehicle committed for the benefit of a gang, a violation of Minn. Stat. งง 609.52, subd. 2(17), .229, subd. 2 (2004). The district court imposed a 25-month sentence. Appellant challenges the sufficiency of the evidence supporting his conviction.

On September 12, 2004, a black 1996 Impala SS was stolen in Milwaukee, Wisconsin. Two days later, St. Paul Police Officer Mike Reuvers, assigned to the FBI Minnesota Fugitive Task Force, learned that appellant’s brother, Edward Townsend, was seen in possession of the stolen Impala. Reuvers knew that a warrant had been issued for Edward’s arrest on an unrelated aggravated-robbery charge. He suspected that Edward was in St. Paul and set up surveillance that evening at The Warehouse, a St. Paul club known for gang activity.

That evening, appellant drove the stolen Impala to pick up his friend, Renaldo McDaniel, at his mother’s house. Appellant was also accompanied by his brother, Edward, and another brother, Jermaine Townsend. McDaniel then drove all four to The Warehouse in the stolen Impala. Meanwhile, Reuvers and other officers conducted surveillance at The Warehouse, waiting for the Impala to arrive. When it drove up, police surrounded the car with guns drawn and arrested appellant, Edward, Jermaine, and McDaniel. A search of the vehicle yielded a .32 caliber automatic handgun and ammunition. Appellant admitted that he drove the car to McDaniel’s house but denied knowing that it was stolen.

At trial, McDaniel testified that he knew the vehicle was stolen because it was too nice to be owned by appellant or his brothers, none of whom had a job. In addition, McDaniel testified at trial that he, Edward, and Jermaine were members of the Gangster Disciples gang and that appellant was also a member because of his affiliation with the others: “If you’re in the element of hanging around gang members, doing gang member activities, doing stuff that gang members do, you’re a gang member. . . . There’s no such thing as gang wannabees. Either you is or you ain’t.” The parties stipulated that Edward and Jermaine Townsend were members of the Gangster Disciples gang, and that Gangster Disciples is a criminal gang as defined by Minn. Stat. ง 609.229, subd. 1 (2004). The jury convicted appellant of committing a crime for the benefit of a gang.

D E C I S I O N

The issue in this case is whether the evidence is sufficient to prove that appellant committed a crime for the benefit of a gang. 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). This includes an analysis of both the facts presented and the inferences the jury could reasonably draw from those facts. State v. Robinson, 604 N.W.2d 355, 366 (Minn. 2000). The reviewing court shall “assume the jury believed the state’s witnesses and disbelieved any contrary evidence.” State v. Bias, 419 N.W.2d 480, 484 (Minn. 1988). “The dispositive consideration . . . is not whether reasonable doubt existed, but whether there was sufficient evidence for a jury to reasonably conclude that no reasonable doubt existed.” State v. Walen, 563 N.W.2d 742, 750 (Minn. 1997).

Being convicted of a crime for the benefit of a gang allows the district court to enhance a defendant’s sentence. See Minn. Stat. ง 609.229, subd. 3 (2004). This constitutes a substantive offense, State v. Chuon, 596 N.W.2d 267, 270 (Minn. App. 1999), review denied (Minn. Aug. 25, 1999), but an underlying crime is a necessary element of the offense, Minn. Stat. ง 609.229, subd. 2. If convicted, the statutory maximum sentence for a felony is five years longer than the maximum sentence for the underlying crime. Id., subd. 3(a) (2004). In this case, the underlying crime was theft of a motor vehicle, which involves taking or driving “a motor vehicle without the consent of the owner or an authorized agent of the owner, knowing or having reason to know that the owner or an authorized agent of the owner did not give consent.” Minn. Stat. ง 609.52, subd. 2(17) (2004). Theft of a motor vehicle “is a continuing offense commencing when the vehicle is taken and concluding when it is abandoned.” State v. Finn, 295 Minn. 520, 522, 203 N.W.2d 114, 115 (1972).

Appellant’s charged offense consisted of three elements. First, the state had to prove that appellant committed the theft of a motor vehicle. Appellant concedes that the evidence supported a conviction on this element. Second, the state had to prove that appellant’s actions were motivated by involvement with a criminal gang. The parties stipulated that Gangster Disciples is a criminal gang and that appellant’s brothers were gang members. Appellant also concedes that the jury could have inferred from McDaniel’s testimony that appellant was motivated to commit the theft crime because of involvement with a criminal gang.

Finally, the state had to prove that appellant acted with intent to further criminal conduct of gang members. As the district court instructed the jury, the intent element is satisfied if appellant “acted with intent to promote, further or assist in criminal conduct by gang members.” See Minn. Stat. ง 609.229, subd. 2. It is only the sufficiency of the evidence on this element of the charged offense that appellant challenges.

Appellant’s conviction will stand if there is sufficient evidence to prove that he intended to further the criminal act of theft of a motor vehicle. “Intent must generally be proved by inferences from the defendant’s conduct and the surrounding circumstances.” Chuon, 596 N.W.2d at 271 (holding that a single shot to the victim’s torso was sufficient to support a finding that appellant acted with intent to kill). Intent is a subjective state of mind “proved through a defendant’s conduct in the given circumstance.” State v. Lopez-Rios, 669 N.W.2d 603, 615 (Minn. 2003).

Theft of a motor vehicle is a continuing crime. Here, given the gang association, appellant furthered this crime when he drove the vehicle to transport other gang members. The crime furthered by the appellant’s actions does not need to be a separate offense from the underlying crime. See, e.g., State v. Blanche, 696 N.W.2d 351, 360 (Minn. 2005); State v. Lee, 683 N.W.2d 309, 312 (Minn. 2004); State v. DeShay, 669 N.W.2d 878, 879-80 (Minn. 2003). In addition, the state offered the following pieces of evidence to prove intent: (1) appellant knew or should have known the car was stolen; (2) appellant associated with a criminal gang, and one reasonable inference from McDaniel’s testimony was that appellant was a gang member himself; (3) appellant admitted that he utilized the stolen vehicle when he drove it to transport his brothers to pick up McDaniel; and (4) there was clear proof that when appellant drove the car, a gun and ammunition were also being transported and the group was en route to a night club known for gang activity.

Finally, appellant’s intent to further the criminal conduct of a gang is evidenced by the reasonable inferences drawn from the surrounding circumstances. See State v. Pendleton, 706 N.W.2d 500, 511 (Minn. 2005) (finding sufficient evidence where the appellant, dressed in gang attire, stepped out of a vehicle’s rear passenger door with a long rifle and admitted to being present when the victim was killed, although denying he had intent to kill the victim); State v. Henderson, 620 N.W.2d 688, 705 (Minn. 2001) (finding sufficient evidence because, if believed by the jury, evidence demonstrated that appellant was a gang member who killed another gang member in retaliation for his collusion with the police, even though no witnesses actually saw appellant kill the victim). The evidence and all reasonable, related inferences are sufficient to support appellant’s conviction.

Affirmed.