Kao Xiong gambled and lost.
The grieving father knew he made mistakes that allowed his 4-year-old son to find an unsecured handgun and shoot and kill his younger brother. Still, he maintained that what happened was an accident, not a crime.
It’s why he rejected several plea deals from prosecutors that likely would have kept him out of prison in exchange for admitting to a felony. Xiong took his case to trial, trusting a jury to see things the way he did.
The strategy failed Friday when a jury convicted him of two felony counts of second-degree manslaughter and two gross-misdemeanor counts of child endangerment, leaving Xiong stunned and facing a possible four-year prison sentence. His mother wailed and his brother cursed the judge and jury as deputies led him away. Members of the jury quietly walked out of the courtroom, brushing tears from their eyes.
Xiong was acquitted of a third gross- misdemeanor child endangerment count.
It was a dramatic end to an emotionally wrenching case that began when Neegnco, 2, was shot in the chest on Dec. 5, 2012, by his older brother, who was playing with a loaded handgun in an upstairs bedroom while their parents were downstairs making lunch.
He died at the scene.
“Our position is this has always been an accident, and it has never been about manslaughter,” said his attorney, Steve Meshbesher, adding that a juror told him he was sorry. “What does that tell you? It tells me a mistake was made in the courtroom.”
Dozens of Xiong’s family members and supporters attended the weeklong trial. Xiong, who did not testify and called no witnesses in his defense, broke down and sobbed uncontrollably when he saw photos of his son’s body during a medical examiner’s testimony.
Assistant Hennepin County Attorney Amy Sweasy argued that Xiong, 31, was negligent for stashing the weapon between a pillow and a mattress in the master bedroom where the children played unattended.
The gun was one of eight that police found in Xiong’s south Minneapolis home, where the family’s four children lived.
Meshbesher countered that the gun was safely hidden between the headboard and the mattress in a holster, and although loaded, it was not likely to be found by the 4-year-old.
The conviction calls for four years in prison under state guidelines, although Judge Daniel Moreno will make the final decision when Xiong is sentenced June 27. Hennepin County Attorney Mike Freeman said that the case is the fourth in recent years involving a child hurt or killed by a gun carelessly left out by a father or other male and that there was little hesitation when it came to charging Xiong.
“We need to send messages,” Freeman said. “We’re not looking for profound penalties for these people. We’re looking for messages: Don’t keep loaded handguns accessible to kids.”
Freeman said it wasn’t prosecutors’ intent to take the case to trial. He wouldn’t specify what offers were made, but said they included time less than the four years that Xiong could receive.
“When we negotiated in good faith, he said he refused to accept a deal that required him to acknowledge responsibility, and clearly he needed to acknowledge responsibility,” Freeman said.
A presentence investigation is necessary before the prosecution decides what sentence it will ask Moreno to give Xiong.
Meshbesher said each of the offers made to Xiong included a plea to a felony with some jail time and a lengthy probation period. It was unsatisfactory, he said, and Xiong knew of the risks of taking the case to trial.
Meshbesher slammed Freeman as making his client’s entire case about politics.
“Mr. Freeman did not try this case; Mr. Freeman was not in that courtroom. Mr. Freeman holds press conferences because he is an elected official,” Meshbesher said. “This is not politics. This is somebody’s life.”
Asked whether the case was political, Freeman responded with an incredulous “No.”
“Why does this guy need to leave seven guns in a house with five kids?” he said. “A kindergartner, a 4-year-old, a 2-year-old and a 1-year old with no toys, except Daddy’s loaded guns. Go figure.”