This opinion will be unpublished and may not be cited except as provided by Minn.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 A15-0127
State of Minnesota, Respondent,
vs.
Michael David Henderson, Appellant.
Filed January 19, 2016 Affirmed Ross, Judge
Hennepin County District Court File No. 27-CR-14-8400
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Michael O. Freeman, Hennepin County Attorney, Elizabeth R. Johnston, Assistant County Attorney, Minneapolis, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Suzanne M. Senecal-Hill, Assistant Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Ross, Presiding Judge; Halbrooks, Judge; and
Chutich, Judge.
UNPUBLISHED OPINION
ROSS, Judge
Former Sam’s Club employee Michael Henderson was attempting to rob the Sam’s
Club store at gunpoint when he trained his .22 caliber handgun at an employee’s chest and pulled the trigger. A malfunction prevented the gun from discharging. A jury found
Henderson guilty of attempted second-degree murder, and Henderson appeals his
conviction. He argues that the evidence is insufficient to prove that he attempted to fire the
gun at the employee because the store’s surveillance video footage does not show the
employees reacting as if he did. Sufficient testimonial evidence defeats Henderson’s
argument, and we affirm his conviction.
FACTS
A Bloomington Sam’s Club supervisor was closing the store on a March 2014
evening when a man outside walked up to the door wearing a black ski mask, a Sam’s Club
vest, and black gloves. The masked man told P.B., the supervisor, that he was an overnight
employee. It was a cold night, so the gloves and ski mask caused P.B. no immediate
suspicion. He let the man inside.
The masked man walked upstairs and into a room where the store’s assistant
manager, M.O., was participating on a conference call. He told M.O. he needed help putting
his walkie-talkie away. M.O. supposed that the man was a new cart attendant. So he led
him to a room and pointed to the walkie-talkie chargers. The masked man then brandished
a handgun, pointed it at M.O.’s face, and told M.O. to empty the safe or be shot. M.O.
opened the safe and the man ordered him to put the money into a plastic bag the man was
carrying. M.O. complied.
The masked man collected the money and left the office. M.O. dialed 9-1-1.
The man walked back downstairs and toward the store’s exit. He was carrying the
bag full of money. N.H., another employee, was also walking toward the exit, just ahead
2 of the masked man. P.B. was still stationed near the exit, and, in keeping with store
practice, he asked the man to open his bag so he could check it, presumably for any stolen
merchandise.
The masked man again drew his handgun. He pointed it at P.B., then at N.H.’s face,
then back at P.B.’s chest. He told the two employees to step back. N.H. then recognized
the masked man’s voice as belonging to Michael Henderson, his former coworker at the
store. While Henderson trained the gun at P.B.’s chest, P.B. and N.H. heard a “click” sound,
and both believed Henderson had just pulled the trigger. The gun did not fire. One of the
two men saw Henderson pull the trigger again while he pointed the gun at P.B.’s chest, and
again the gun did not fire.
The two employee’s watched as the masked man retreated into the store, and P.B.
radioed M.O. for help. M.O. told P.B. to open the door and let the robber leave. P.B. let
him out but followed him into the parking lot, hoping to identify the license plate of any
escape vehicle.
Henderson, still masked, instead jumped a nearby fence and fled across Interstate
Highway 494. Police arrived and saw a man trying to stop and enter a car on the highway,
but the driver sped away. Police apprehended the man and identified him as Michael
Henderson. They found his gloves stuck in the fence, his vest and ski mask near the
highway, and his plastic bag with the stolen money and a .22 caliber semi-automatic
handgun also near the highway.
3 Police examined the gun. It was operable and its safety had been placed in the firing
position. But a spent cartridge casing was lodged in the barrel, preventing a live round from
entering and the gun from firing.
The state charged Henderson with one count of first-degree aggravated robbery, two
counts of attempted second-degree murder, one count of attempted first-degree aggravated
robbery, and one count of second-degree assault. Henderson conceded at trial that he
committed first-degree aggravated robbery. The jury found him guilty of attempted second-
degree murder of P.B. It did not find him guilty of attempted murder of N.H., but it did
find him guilty of the lesser-included offense of second-degree assault. Henderson was
acquitted of attempted first-degree aggravated robbery and second-degree assault of the
highway driver.
Henderson appeals his attempted second-degree murder conviction and his
sentence.
DECISION
I
Henderson argues that the lack of evidence requires us to reverse his conviction for
attempted second-degree murder. When considering an insufficient-evidence argument on
appeal, we review to determine whether the record contains evidence that, when viewed in
a light most favorable to the conviction, supports the verdict. State v. Ortega, 813 N.W.2d
86, 100 (Minn. 2012). We assume that the jury believed the state’s witnesses and
disbelieved contrary evidence. Id. We will not reverse the conviction if the jury, honoring
4 the presumption of innocence and its duty not to convict without proof beyond a reasonable
doubt, could reasonably find the defendant guilty. Id.
Henderson’s argument relies substantially on footage from the surveillance video.
He first maintains that the video fails to show that P.B. or N.H. reacted as though they had
actually witnessed him pulling the handgun’s trigger. The argument might persuade a fact-
finder to reject P.B.’s and N.H.’s testimony as incredible. But on appeal, we do not look to
the evidence to determine whether it could have led a reasonable jury to acquit; we look to
determine whether it could have led a reasonable jury to convict. In this case, we therefore
consider whether the evidence could have led the jury reasonably to find that Henderson
attempted to murder P.B. An attempted-murder conviction requires proof that the
defendant took a substantial step toward committing murder. See Minn. Stat. § 609.17,
subd. 1 (2012); Minn. Stat. § 609.19, subd. 1(1) (2012). The state presented evidence that
Henderson took a substantial step by pulling the handgun’s trigger while he pointed the
gun at P.B.’s chest. We may uphold a conviction even on a single eyewitness’s testimony.
See, e.g., Caldwell v. State, 347 N.W.2d 824, 828 (Minn. App. 1984). Among other
evidence, P.B. testified, “I saw him pull the trigger and I heard the sound.” N.H. also
testified to hearing a “click” sound while Henderson pointed the gun at P.B. Our standard
of review requires us to assume that the jury believed this testimony despite the employees’
lack of reaction on the surveillance footage. This leads us to sustain the conviction.
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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 A15-0127
State of Minnesota, Respondent,
vs.
Michael David Henderson, Appellant.
Filed January 19, 2016 Affirmed Ross, Judge
Hennepin County District Court File No. 27-CR-14-8400
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Michael O. Freeman, Hennepin County Attorney, Elizabeth R. Johnston, Assistant County Attorney, Minneapolis, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Suzanne M. Senecal-Hill, Assistant Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Ross, Presiding Judge; Halbrooks, Judge; and
Chutich, Judge.
UNPUBLISHED OPINION
ROSS, Judge
Former Sam’s Club employee Michael Henderson was attempting to rob the Sam’s
Club store at gunpoint when he trained his .22 caliber handgun at an employee’s chest and pulled the trigger. A malfunction prevented the gun from discharging. A jury found
Henderson guilty of attempted second-degree murder, and Henderson appeals his
conviction. He argues that the evidence is insufficient to prove that he attempted to fire the
gun at the employee because the store’s surveillance video footage does not show the
employees reacting as if he did. Sufficient testimonial evidence defeats Henderson’s
argument, and we affirm his conviction.
FACTS
A Bloomington Sam’s Club supervisor was closing the store on a March 2014
evening when a man outside walked up to the door wearing a black ski mask, a Sam’s Club
vest, and black gloves. The masked man told P.B., the supervisor, that he was an overnight
employee. It was a cold night, so the gloves and ski mask caused P.B. no immediate
suspicion. He let the man inside.
The masked man walked upstairs and into a room where the store’s assistant
manager, M.O., was participating on a conference call. He told M.O. he needed help putting
his walkie-talkie away. M.O. supposed that the man was a new cart attendant. So he led
him to a room and pointed to the walkie-talkie chargers. The masked man then brandished
a handgun, pointed it at M.O.’s face, and told M.O. to empty the safe or be shot. M.O.
opened the safe and the man ordered him to put the money into a plastic bag the man was
carrying. M.O. complied.
The masked man collected the money and left the office. M.O. dialed 9-1-1.
The man walked back downstairs and toward the store’s exit. He was carrying the
bag full of money. N.H., another employee, was also walking toward the exit, just ahead
2 of the masked man. P.B. was still stationed near the exit, and, in keeping with store
practice, he asked the man to open his bag so he could check it, presumably for any stolen
merchandise.
The masked man again drew his handgun. He pointed it at P.B., then at N.H.’s face,
then back at P.B.’s chest. He told the two employees to step back. N.H. then recognized
the masked man’s voice as belonging to Michael Henderson, his former coworker at the
store. While Henderson trained the gun at P.B.’s chest, P.B. and N.H. heard a “click” sound,
and both believed Henderson had just pulled the trigger. The gun did not fire. One of the
two men saw Henderson pull the trigger again while he pointed the gun at P.B.’s chest, and
again the gun did not fire.
The two employee’s watched as the masked man retreated into the store, and P.B.
radioed M.O. for help. M.O. told P.B. to open the door and let the robber leave. P.B. let
him out but followed him into the parking lot, hoping to identify the license plate of any
escape vehicle.
Henderson, still masked, instead jumped a nearby fence and fled across Interstate
Highway 494. Police arrived and saw a man trying to stop and enter a car on the highway,
but the driver sped away. Police apprehended the man and identified him as Michael
Henderson. They found his gloves stuck in the fence, his vest and ski mask near the
highway, and his plastic bag with the stolen money and a .22 caliber semi-automatic
handgun also near the highway.
3 Police examined the gun. It was operable and its safety had been placed in the firing
position. But a spent cartridge casing was lodged in the barrel, preventing a live round from
entering and the gun from firing.
The state charged Henderson with one count of first-degree aggravated robbery, two
counts of attempted second-degree murder, one count of attempted first-degree aggravated
robbery, and one count of second-degree assault. Henderson conceded at trial that he
committed first-degree aggravated robbery. The jury found him guilty of attempted second-
degree murder of P.B. It did not find him guilty of attempted murder of N.H., but it did
find him guilty of the lesser-included offense of second-degree assault. Henderson was
acquitted of attempted first-degree aggravated robbery and second-degree assault of the
highway driver.
Henderson appeals his attempted second-degree murder conviction and his
sentence.
DECISION
I
Henderson argues that the lack of evidence requires us to reverse his conviction for
attempted second-degree murder. When considering an insufficient-evidence argument on
appeal, we review to determine whether the record contains evidence that, when viewed in
a light most favorable to the conviction, supports the verdict. State v. Ortega, 813 N.W.2d
86, 100 (Minn. 2012). We assume that the jury believed the state’s witnesses and
disbelieved contrary evidence. Id. We will not reverse the conviction if the jury, honoring
4 the presumption of innocence and its duty not to convict without proof beyond a reasonable
doubt, could reasonably find the defendant guilty. Id.
Henderson’s argument relies substantially on footage from the surveillance video.
He first maintains that the video fails to show that P.B. or N.H. reacted as though they had
actually witnessed him pulling the handgun’s trigger. The argument might persuade a fact-
finder to reject P.B.’s and N.H.’s testimony as incredible. But on appeal, we do not look to
the evidence to determine whether it could have led a reasonable jury to acquit; we look to
determine whether it could have led a reasonable jury to convict. In this case, we therefore
consider whether the evidence could have led the jury reasonably to find that Henderson
attempted to murder P.B. An attempted-murder conviction requires proof that the
defendant took a substantial step toward committing murder. See Minn. Stat. § 609.17,
subd. 1 (2012); Minn. Stat. § 609.19, subd. 1(1) (2012). The state presented evidence that
Henderson took a substantial step by pulling the handgun’s trigger while he pointed the
gun at P.B.’s chest. We may uphold a conviction even on a single eyewitness’s testimony.
See, e.g., Caldwell v. State, 347 N.W.2d 824, 828 (Minn. App. 1984). Among other
evidence, P.B. testified, “I saw him pull the trigger and I heard the sound.” N.H. also
testified to hearing a “click” sound while Henderson pointed the gun at P.B. Our standard
of review requires us to assume that the jury believed this testimony despite the employees’
lack of reaction on the surveillance footage. This leads us to sustain the conviction.
Henderson argues also that P.B.’s following him outside after the confrontation also
indicates that P.B. had not really seen Henderson pull the trigger. In light of the testimony
and our deferential standard of review, again, we must assume that the jury believed P.B.’s
5 testimony regardless of whether P.B.’s behavior confirmed the testimony. The argument
must therefore fail. And we add that the result would likely be the same even under a less-
deferential standard of review. This is because P.B.’s following Henderson outside does
not apparently conflict with his testimony that he witnessed Henderson pull the trigger.
Rather, it corroborates the testimony. P.B.’s following the gun-wielding robber outside
suggests that P.B. had some reason not to fear the robber’s gun. A jury could conclude that
Henderson supplied that reason by pulling the trigger with no discharge. In other words,
the jury could reasonably infer that P.B. knew he could safely pursue Henderson because
he had just witnessed Henderson do something that convinced him that Henderson’s gun
was no threat—something like, for example, twice pulling the trigger with no discharge.
II
Henderson argues in his pro se supplemental brief that the district court should
modify his sentences because they are excessive and must run in concurrent terms rather
than consecutively.
He first argues that his sentencing did not adequately reflect his intoxicated state
during the crime. But the sentencing guidelines reject voluntary alcohol use as a mitigating
factor in sentencing. Minn. Sent. Guidelines 2.D.3.a.(3) (2013). We therefore find no error
on this basis.
Henderson also argues that his sentence fails to take into account aspects of his
personal history, including his education, volunteer work, and lack of prior criminal
history. The district court imposed presumptive sentences for Henderson’s convictions.
The district court has such wide sentencing discretion that we generally do not review a
6 district court’s decision imposing a sentence within the guidelines presumptive range. State
v. Delk, 781 N.W.2d 426, 428 (Minn. App. 2010), review denied (Minn. July 20, 2010).
This is in part because “[t]he sentence ranges provided in the [Sentencing Guidelines] Grids
are presumed to be appropriate.” Minn. Sent. Guidelines 2.D.1 (2013). The supreme court
in dicta predicted that a sentence within the presumptive guidelines range would be
reversed only in “rare” cases. State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981). We will not
exercise our authority to alter a sentence within the presumptive sentence range unless
“compelling circumstances” warrant it. State v. Freyer, 328 N.W.2d 140, 142 (Minn.
1982). Our review of the record convinces us that the district court sufficiently evaluated
Henderson’s personal history in making its sentencing decision and that Henderson
presents no compelling circumstance warranting a reversal and a different sentence.
Henderson maintains that the probation officer who prepared his presentence
investigation report was biased. But he points us to no evidence of this alleged bias and has
not developed the argument that the bias would require a different sentence.
Affirmed.