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STATE OF MINNESOTA IN COURT OF APPEALS A10-672 State of Minnesota, Respondent, vs. James Brown, Appellant. Filed April 19, 2011 Reversed Ross, Judge Douglas County District Court File No. 21-CR-09-559 Lori Swanson, Attorney General, St. Paul, Minnesota; and Chad M. Larson, Douglas County Attorney, Alexandria, Minnesota (for respondent) David W. Merchant, Chief Appellate Public Defender, G. Tony Atwal, Assistant Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Lansing, Presiding Judge; Ross, Judge; and Connolly, Judge. SYLLABUS When the state introduces no evidence to establish the element of immediacy between the time the defendant left an alleged drive-by vehicle and discharged his firearm, the state has not proven that the defendant committed a felony drive-by shooting under Minnesota Statutes section 609.66.

OPINION ROSS, Judge James Brown appeals from his felony drive-by shooting convictions, arguing that the evidence was insufficient to establish the immediacy element implicit in the statute. Because sufficient evidence does not establish beyond a reasonable doubt that Brown fired a gun having just exited from a motor vehicle, we reverse the convictions. FACTS James Brown and Rufus Russel had a violent rivalry with Randell Robertson, Curtis Cousin, and Anthony Randolph. The feuding groups frequented the same parties and bars and were interested in dating the same women. Verbal and physical fights punctuated their nights out in Alexandria. In the early morning hours of November 12, 2008, shots were fired at Robertson, Cousin, and Randolph`s Kenwood Street home. No one was hurt. Police investigated and the state charged Brown with drive-by shooting of an unoccupied car and of an occupied building and felon in possession of a firearm. See Minn. Stat.

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