This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA
IN COURT OF APPEALS
A14-0815
State of Minnesota,
Respondent,
vs.
Dane Joseph Riley,
Appellant.
Filed June 22, 2015
Affirmed
Peterson, Judge
Cass County District Court
File No. 11-CR-12-1586
Lori Swanson, Attorney General, Michael T. Everson, Assistant Attorney General, St.
Paul, Minnesota; and
Christopher J. Strandlie, Cass County Attorney, Walker, Minnesota (for respondent)
Melissa V. Sheridan, Assistant State Public Defender, Eagan, Minnesota (for appellant)
Considered and decided by Connolly, Presiding Judge; Peterson, Judge; and
Worke, Judge.
UNPUBLISHED OPINION
PETERSON, Judge
In this appeal from convictions of second-degree intentional murder, interference
with a dead body with intent to mislead the coroner or conceal evidence, and ineligible
firearm possession, appellant argues that the district court erred by refusing to
(1) suppress the evidence police obtained pursuant to a search warrant executed on
appellant’s home and surrounding property and buildings; and (2) instruct the jury that
circumstantial evidence must exclude every rational hypothesis except that of guilt. We
affirm.
FACTS
In July 2012, appellant Dane Joseph Riley and his girlfriend, J.T., lived in a
mobile home on land near Pine River that appellant’s father, J.B., owned. J.B.’s
residence and welding business were also located on the property.
1. Events of July 13-14, 2012
During the afternoon on July 13, appellant and J.T. went to their friend T.K.’s
house. Several other people were there. Appellant and others were smoking
methamphetamine. Appellant and J.T. returned to their home to watch television, and
J.T. went to bed at about 10:00 p.m.
M.A.H. had been at T.K.’s house earlier in the day but left to buy
methamphetamine. M.A.H. did not return to T.K.’s house until late that night and was
still there at about 2:00 a.m. At some point, appellant returned to T.K.’s house looking
for a backpack that he thought had been stolen from him.
J.T. testified at trial that she was awakened by the sound of two gunshots. She
went outside and saw appellant beating up M.A.H., who was on the ground on his back,
and appellant was straddling him and punching him. M.A.H. was yelling, “Stop, Dane, I
won’t tell anybody.” Appellant swore at J.T. and told her to go back inside, which she
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did. When appellant came inside, he made J.T. promise not to tell anyone what she had
seen. J.T. noticed that appellant’s hands were very dirty and “looked all black,” and the
next morning, she noticed a deep cut on his finger.
2. Police Investigation
After not hearing from M.A.H. for about one week, his mother became concerned
and began contacting his friends, including appellant. Appellant said that he had dropped
M.A.H. off on County Road 2 and that M.A.H. was going to Cass Lake. No one else
knew anything about M.AH.’s whereabouts, so M.A.H.’s mother filed a missing-person
report.
Cass County Sheriff’s Investigator Anthony Cyr contacted some of M.A.H.’s
associates, including appellant. Appellant said that the last time he saw M.A.H., M.A.H.
had left with a girl and gone to Cass Lake. Authorities became concerned that M.A.H.’s
disappearance was more serious than a missing-person case because M.A.H.’s use of his
cell phone, which had been prolific, and of his debit card had abruptly stopped. There
was no record of any phone calls or texts after 4:10 a.m. on July 14, and the debit card
was not used after July 13.
Based on reports that appellant was one of the last people to talk to M.A.H., Cass
County Sheriff’s Investigator Robert Stein decided to obtain a statement from appellant.
Appellant said that he had last seen M.A.H. on July 13, probably sometime before
midnight. Appellant said he had picked up M.A.H. at T.K.’s house and dropped him off
on County Road 1 just outside of Pine River. Appellant said that M.A.H. had indicated
that he was going to Cass Lake to see a new girlfriend, and appellant thought that M.A.H.
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might be getting a ride from the new girlfriend. Appellant said he suspected that M.A.H.
might be going to Cass Lake for drugs.
One of appellant’s neighbors reported to police that she heard gunshots at about
4:20 a.m. on July 14. After the shots, the neighbor heard a panicked male voice
repeatedly yelling “Dan, no!” The neighbor also heard a female voice but could not hear
what the female was saying.
On July 24, Bureau of Criminal Apprehension (BCA) Special Agent Chad Museus
prepared an application for a warrant to search J.B.’s property, including appellant’s
home, outbuildings, vehicles, equipment, and surrounding property, but excluding J.B.’s
residence. While Museus was preparing the application, BCA Senior Special Agent
Donald Newhouse talked to M.A.H.’s brother, M.L.H., who said that friends and family
members were planning to search for M.A.H. in wooded areas near Pine River.
Newhouse instructed M.L.H. to stay off of J.B.’s property because law enforcement
intended to obtain a search warrant for J.B.’s property.
In the search-warrant application, Museus stated: (1) M.A.H.’s mother reported
him missing on July 20 because he had had no contact with her or any family members
for a week; (2) M.A.H.’s cell-phone records showed a large volume of calls for the days
before July 14 but no calls or text messages after 4:10 a.m. on July 14, and the last known
location of the phone was west of a tower located near J.B.’s property; (3) M.A.H.’s
financial records showed no activity after July 13; (4) no law-enforcement officer had run
M.A.H.’s name after July 13, and he was not in custody anywhere; (5) several witnesses
reported that M.A.H. was at a party at T.K.’s residence on July 13, and one witness said
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that M.A.H. was at T.K.’s after midnight and left at about 4:00 a.m. on July 14; (6) that
witness believed that appellant picked up M.A.H. because M.A.H. left in a car with a
loud muffler, and appellant’s car had a loud muffler; (7) one of appellant’s neighbors
heard two gunshots at about 4:20 a.m. coming from the general direction of appellant’s
home and a panicked male voice repeatedly yelling “Dan, No!”; (8) M.L.H. had left a
semi-automatic handgun at appellant’s home about six weeks earlier, and when
questioned by M.L.H., J.T. said that she did not know the handgun’s present location;
(9) after waiving his Miranda rights, appellant told investigators that during the late
evening hours of July 13, he drove M.A.H. from T.K.’s residence to an area on County
Road 1 southwest of Pine River and that he believed that he drove his father’s pickup
truck; (10) J.T. recalled that appellant drove a car, not his father’s truck, to pick up
M.A.H.; and (11) when appellant returned, he told J.T. that he dropped M.A.H. off on
County Road 2 near Pine River.
Before Museus presented the application to the district court, he learned that
searchers had found a fresh burn site that contained damaged pieces of clothing and
remnants of a tennis shoe, and Museus added that information to the application.
Newhouse and BCA Special Agent Eric Jaeche went to the burn site. Searchers told the
investigators that the burn site was on state land about a quarter mile south of J.B.’s
property. Investigators later learned that the burn site was about 25 yards north of J.B.’s
southern property line.
On July 24, the district court issued a search warrant that authorized officers to
search appellant’s home, surrounding land, and outbuildings. During the search,
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investigators found a burial site on J.B.’s land near appellant’s home. The burial site
consisted of two fresh mounds of dirt that contained M.A.H.’s burned and dismembered
body. Investigators also found weapons and other evidence that linked appellant to
M.A.H.’s death.
Appellant was charged with one count each of second-degree intentional murder,
interference with a dead body, and ineligible person in possession of a firearm. Appellant
moved to suppress evidence obtained as a result of the July 24 search warrant, a July 27
warrant to search J.B.’s truck, a July 27 warrant to obtain a DNA sample from appellant,
and a July 30 warrant to search appellant’s home a second time. The district court denied
the motion as to the July 24 and 27 warrants but granted it as to the July 30 warrant. A
jury found appellant guilty as charged, and the district court sentenced appellant to an
executed prison term. This appeal followed.
DECISION
When reviewing whether a search warrant is supported by probable cause, we
afford great deference to the district court’s probable-cause determination. State v.
Rochefort, 631 N.W.2d 802, 804 (Minn. 2001). Our only consideration is “whether the
judge issuing the warrant had a substantial basis for concluding that probable cause
existed.” State v. Jenkins, 782 N.W.2d 211, 222-23 (Minn. 2010) (quotation omitted).
There is a strong preference for searches conducted pursuant to a search warrant, and
“doubtful or marginal cases should be largely determined by the deference to be accorded
to warrants.” Rochefort, 631 N.W.2d at 804 (quotation omitted).
Probable cause is to be determined under a “totality of the circumstances” test:
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The task of the issuing magistrate is simply to make a
practical, common-sense decision whether, given all the
circumstances set forth in the affidavit before him, including
the “veracity” and “basis of knowledge” of persons supplying
hearsay information, there is a fair probability that contraband
or evidence of a crime will be found in a particular place.
Jenkins, 782 N.W.2d at 223 (quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct.
2317, 2332 (1983)). “[A] collection of pieces of information that would not be
substantial alone can combine to create sufficient probable cause.” State v. Jones, 678
N.W.2d 1, 11 (Minn. 2004).
Appellant argues that the July 24 search warrant was not supported by probable
cause and, therefore, the evidence discovered as a result of it should have been
suppressed. In making this argument, appellant challenges the legality of the search that
resulted in the discovery of the burn site. Although the district court determined that the
burn site was legally discovered, it also found that the other information in the search-
warrant application was sufficient to establish probable cause that evidence of a crime
would be discovered at appellant’s home. When a search-warrant application contains
information discovered as a result of an illegal search, the district court must determine
whether the other information in the application establishes probable cause and whether
the police would have applied for the warrant without the information discovered as a
result of the illegal search. State v. Lieberg, 553 N.W.2d 51, 55 (Minn. App. 1996). The
other information in the search-warrant application was that family members had had no
contact with the victim for a week; the victim’s cell-phone and credit-card records raised
a suspicion that he had not disappeared voluntarily; his cell phone was last used near
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appellant’s home, and there was evidence that he had left T.K.’s house with appellant at
about 4:00 a.m. on July 14; there were inconsistencies between what appellant told police
and what J.T. recalled regarding when appellant picked up the victim, where he dropped
off the victim, and which vehicle he was driving; and, at about 4:20 a.m. on July 14,
appellant’s neighbor heard gunshots and a man screaming in a panicked voice, and the
sounds came from the general direction of J.B.’s property. This information was
sufficient to establish a reasonable probability that the victim’s disappearance was the
result of a criminal act and that evidence of the crime would be found on the property for
which the search warrant was obtained. Because the information in the search warrant
other than the information about the burn site was sufficient to establish probable cause
and because the police were already in the process of applying for the search warrant
when the burn site was discovered, we need not address the legality of the search
resulting in discovery of the burn site.
II.
A district court has broad discretion in determining how to instruct a jury.
Gulbertson v. State, 843 N.W.2d 240, 247 (Minn. 2014). This court will not reverse
when jury instructions, viewed as a whole, fairly and accurately state the law in a manner
that the jury can understand. State v. Scruggs, 822 N.W.2d 631, 642 (Minn. 2012). Error
in instructing a jury warrants reversal “only if it cannot be said beyond a reasonable
doubt that the error had no significant impact on the verdict.” State v. Koppi, 798
N.W.2d 358, 364 (Minn. 2011).
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The district court instructed the jury: “A fact may be proven by either direct or
circumstantial evidence or by both. The law does not prefer one form of evidence over
the other. . . . A fact is proven by circumstantial evidence when its existence can
reasonably be inferred from other facts proven in the case.” See 10 Minnesota Practice,
CRIMJIG 3.05 (5th ed. 2014) (pattern instruction on direct and circumstantial evidence).
Appellant requested the following instruction instead of the pattern instruction:
When considering the evidence in this case, your inquiry is
not simply whether the inferences leading to guilt are
reasonable, although that is necessary in order to convict, it
MUST also be true that there are no reasonable, rational
inferences that are inconsistent with guilt because if any one
or more circumstances found proved are inconsistent with
guilt, or consistent with innocence, then reasonable doubt as
to guilt arises.
In State v. Gassler, the supreme court emphasized that it had explicitly approved
the pattern jury instruction as an appropriate instruction on circumstantial evidence. 505
N.W.2d 62, 68 (Minn. 2007) (citing State v. Turnipseed, 297 N.W.2d 308, 312 (Minn.
1980)). The court explained that while the rational-hypothesis test is appropriate for
determining the sufficiency of the evidence on appeal, it “does not apply to jury
instructions.” Id. The court also stated that “the better rule is that where the jury is
properly instructed on the standards for reasonable doubt, such an additional instruction
on circumstantial evidence is confusing and incorrect.” Id. (quotation omitted). The
supreme court recently re-affirmed Turnipseed. State v. Fox, ___ N.W.2d ___, ___, 2015
WL 1810482, at *12 (Minn. 2015). The district court did not err in giving the pattern
instruction on circumstantial evidence.
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III.
In a pro se brief, appellant argues that he received ineffective assistance of
counsel. To establish an ineffective-assistance claim, a defendant “must show that
(1) counsel’s performance fell below an objective standard of reasonableness, and (2) that
a reasonable probability exists that the outcome would have been different but for
counsel’s errors.” State v. Caldwell, 803 N.W.2d 373, 386 (Minn. 2011). Because
appellant provides no citations to the record supporting the allegations underlying his
argument that he received ineffective assistance, the argument is waived. See State v.
Krosch, 642 N.W.2d 713, 719-20 (Minn. 2002) (deeming issue raised in pro se brief as
waived when appellant failed to provide legal or factual support for argument).
Appellant also argues that J.T. should not have been allowed to testify because her
statement about the altercation between appellant and M.A.H. was coerced and because
there were inconsistencies within and between her statement and trial testimony. We
“defer to the fact-finder on determinations of credibility.” State v. Watkins, 650 N.W.2d
738, 741 (Minn. App. 2002). The “resolution of conflicting testimony is the exclusive
function of the jury[, which] has the opportunity to observe the demeanor of witnesses
and weigh their credibility.” State v. Lloyd, 345 N.W.2d 240, 245 (Minn. 1984). And
inconsistencies in the state’s case do not require reversal. Id. J.T. testified at trial that
she was arrested for the murder of M.A.H. and for tampering with a dead body. The jury,
therefore, knew that J.T. had a reason to cast blame on appellant. It was the jury’s role to
consider this fact when evaluating the credibility of J.T.’s trial testimony.
Affirmed.
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