This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).






State of Minnesota,


Dewayne Ali Smith,



Filed July 3, 2000


Stoneburner, Judge


Ramsey County District Court

File No. KX99628



Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103 and


Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant County Attorney, 50 West Kellogg Blvd., Suite 315, St. Paul, MN 55102 (for respondent)


John M. Stuart, State Public Defender, Lyonel Norris, Assistant State Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN 55414 (for appellant)



            Considered and decided by Klaphake, Presiding Judge, Kalitowski, Judge, and Stoneburner, Judge.


U N P U B L I S H E D  O P I N I O N




Appellant Dewayne Ali Smith, appealing his conviction for first-degree aggravated robbery, argues that gas station clerk Mia Samm Yang’s eyewitness identification of appellant, whom she knew previously as the boyfriend of a fellow employee, was insufficient to support the conviction.  Because there is sufficient evidence of identification, we affirm.



In reviewing a claim of insufficient evidence to support a conviction, this court views the evidence in the light most favorable to the verdict and assumes the jury believed the state’s witnesses and disbelieved any conflicting evidence.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  We review the record to determine whether the jury could reasonably find the defendant guilty, considering the facts in evidence and the legitimate inferences to be drawn from them and given the necessity of proof beyond a reasonable doubt.  State v. Johnson, 568 N.W.2d 426, 435 (Minn. 1997).

Minnesota courts have consistently held that eyewitness identification testimony by one credible eyewitness is sufficient to sustain a conviction.  State v. Williams, 307 Minn. 191, 198, 239 N.W.2d 222, 226 (1976); State v. Burch, 284 Minn. 300, 313, 170 N.W.2d 543, 552 (1969); Caldwell v. State, 347 N.W.2d 824, 828 (Minn. App. 1984).  The jury determines the credibility of a witness.  State v. Bliss, 457 N.W.2d 385, 390 (Minn. 1990); State v. Daniels, 361 N.W.2d 819, 826 (Minn. 1985).  Identification is also a question of fact for the jury to decide.  State v. Otten, 292 Minn. 493, 494, 195 N.W.2d 590, 591 (1972).  Eyewitness identification of the defendant “need not be positive and certain” as long as it is the witness’s “opinion, belief, impression, or judgment that the defendant is the person” seen committing the crime.  Burch, 284 Minn. at 313, 170 N.W.2d at 552.  Any uncertainty in identification goes to the weight of the evidence and is a consideration for the jury.  State v. Sutton, 272 Minn. 399, 402, 138 N.W.2d 46, 47-48 (1965).

            Yang identified appellant as the robber in a photographic line-up and in court.  The record shows that (1) Yang looked at the robber, who gained entry to the back room of the store using a code known only to employees; (2) she was looking at the robber to remember distinguishing characteristics in order to identify him later; (3) she described the robber to the police as a black male with medium skin tone, five-six to five-eight in height, slender build, with a pierced left ear, and wearing a blue sweatshirt with dark jeans; (4) she told the police she thought the robber was her co-worker’s boyfriend or husband; (5) appellant is a black man with medium skin tone, five foot nine inches tall, slender build, with both of his ears pierced, and his girlfriend was an employee of the store; and (6) when presented with a photographic line-up shortly after the robbery, Yang picked out appellant and said she was absolutely positive he was the robber who pointed a gun at her head.

            Because Yang had an opportunity to observe the robber, paid close attention so she could identify him later, accurately described appellant to the police, and was positive in her identification of appellant in the photo line-up that she was shown shortly after the crime, the evidence supports the reliability of the identification.  See State v. Ostrem, 535 N.W.2d 916, 921 (Minn. 1995) (outlining factors used to determine eyewitness identification reliability) (citing State v. Bellcourt, 312 Minn. 263,264, 251 N.W.2d 631, 633 (1977) (citing Neil v. Biggers, 409 U.S. 188, 199, 93 S. Ct. 375, 382 (1972))); Burch, 284 Minn. at 315-16, 170 N.W.2d at 553-54 (same).  Because the identification evidence was sufficiently reliable to allow the jury to reasonably find appellant guilty, we affirm appellant’s conviction.