This opinion will be unpublished and

may not be cited except as provided by

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







State of Minnesota,





Darryl D. Green,



Filed November 28, 2000


Halbrooks, Judge


Anoka County District Court

File No. K1985707


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


Robert M. A. Johnson, Anoka County Attorney, Robert D. Goodell, Assistant County Attorney, Anoka County Government Center, 2100 Third Avenue, 7th Floor, Anoka, MN 55303 (for respondent)


Craig E. Cascarano, 333 South 7th Street, Suite 2890, Minneapolis, MN 55402 (for appellant)



            Considered and decided by Halbrooks, Presiding Judge, Randall, Judge, and Foley, Judge.*

U N P U B L I S H E D   O P I N I O N


            Appellant Darryl D. Green was convicted of second-degree assault and ineligible person in possession of a pistol.  On appeal, appellant argues that (1) the testimony of the victim was insufficient to support the conviction; (2) the trial court erred in allowing a witness to testify that she had pleaded guilty to obstructing legal process in the investigation of the charged offense; and (3) he should not have been sentenced to a 5-year mandatory minimum because his prior offense was committed before the legislation was enacted that made the previous offense grounds for enhancement.  Because we find (a) the evidence sufficient to support the conviction; (b) no error in the admission of a conviction to show bias; and (c) appellant’s sentencing argument to be without merit, we affirm.


            On April 20, 1998, appellant went to the apartment of Rebecca Sabot, his former girlfriend, and found her in the living room with Corey Jacques.  Sabot left the room to check on her child.  Appellant and Jacques argued.  As the argument intensified, they moved from the apartment to the hallway.  At some point, appellant swung at Jacques, hitting him on the chin.

While in the hallway, Jacques noticed appellant had a gun “on his hip.”  He testified that the gun made him “a little bit more nervous.”  When he “saw an opportunity,” Jacques grabbed for the gun.  As the two men struggled, the gun went off.  The bullet grazed Jacques’s left thigh, creating entry and exit holes in his sweatpants.  Appellant then left the building.

Neighbors called the police.  Upon their arrival, the police saw a man lying in the hallway and detected the odor of gunpowder.  The man, later identified as Jacques, returned to Sabot’s apartment.  In the course of the investigation, the police found a 9‑millimeter casing, a bullet projectile on the third-floor landing, and a wet bloodstain on the hallway carpeting, but did not find a gun.  They interviewed Sabot and Jacques and saw Jacques’s wound and the holes in his sweatpants.

Initially, Sabot was uncooperative with the police.  At trial, she testified that she did not cooperate because Jacques did not want the police involved and she did not want to get evicted.  Sabot was charged with and pleaded guilty to obstructing legal process.  Over appellant’s objection, later withdrawn, her obstruction conviction came into evidence at trial.  Jacques provided a detailed taped statement to the police.  The taped statement, which was admitted into evidence, differed significantly from Jacques’s trial testimony.  

By the time of trial, Sabot and Jacques were living together and engaged to be married.  Appellant’s theory was that Jacques and Sabot contrived the fight and gunshot story in order to get appellant away from Sabot.  Specifically, appellant pointed out the conflicting statements of Sabot and Jacques.  Appellant also argued that the physical evidence made the witnesses’ stories unbelievable. 

Appellant was convicted of second-degree assault and possession of a pistol by an ineligible person.[1]  This appeal follows. 


Where there is a challenge to the sufficiency of the evidence, appellate review is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, was sufficient to permit the jurors to reach the verdict they did.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  Appellant argues that the only evidence upon which to convict him was Jacques’s uncorroborated testimony, testimony that conflicted with his taped statement.  Appellant contends that these conflicting accounts are insufficient for a finding of guilty beyond a reasonable doubt.  But it is the jury’s responsibility to weigh conflicting testimony and determine witness credibility.  Tsudek v. Target Stores, Inc., 414 N.W.2d 466, 469 (Minn. App. 1987), review denied (Minn. Dec. 13, 1987).  Jacques’s credibility is, therefore, a jury determination.

In addition, appellant asserts that Jacques’s uncorroborated testimony is insufficient evidence to support the verdict.  See State v. Ani, 257 N.W.2d 699, 700 (Minn. 1977) (“the absence of corroboration in an individual case * * * may well call for a holding that there is insufficient evidence upon which a jury could find the defendant guilty beyond a reasonable doubt.”) (quotation omitted).  But here, although Jacques’s testimony is the only direct evidence, there was circumstantial evidence for the jury to consider.  The circumstantial evidence included the victim’s injuries, the smell of gunpowder at the scene, the bullet casing and projectile, and the wet bloodstain in the hallway. 

“A sufficiency of the evidence challenge warrants more strict scrutiny where the evidence is circumstantial.”  State v. Bias, 419 N.W.2d 480, 484 (Minn. 1988).  But

[w]hen reviewing a conviction based on circumstantial evidence, this court recognizes that a jury normally is in the best position to evaluate circumstantial evidence, and that their verdict is entitled to due deference.


State v. DeWald, 463 N.W.2d 741, 749 (Minn. 1990) (citations and internal quotations omitted).  In this case, the cumulative evidence is sufficient to permit a jury to reach guilty verdicts for both the second-degree assault and the ineligible-person-in-possession-of-a-firearm charges.

            Second, appellant argues that the trial court erred in allowing Sabot to testify about her obstruction-of-legal-process conviction.  Appellant contends that admitting this evidence was prejudicial and permitted the jury to speculate as to why Sabot refused to cooperate.  But at trial, appellant withdrew the objection to Sabot’s testimony regarding her conviction.  By withdrawing the objection, appellant has waived the issue on appeal.  State v. Meadows, 303 Minn. 76, 78, 226 N.W.2d 303, 305 (Minn. 1975). 

Moreover, this court will defer to a trial court’s evidentiary rulings, which will not be overturned absent a clear abuse of discretion.  State v. Kelly, 435 N.W.2d 807, 813 (Minn. 1989).  Here, there is no error.  Even if the objection was not withdrawn, Sabot’s conviction is admissible under Minn. R. Evid. 616 as “evidence of bias, prejudice, or interest of the witness for or against any party.”  Bias includes attitudes, feelings, or emotions of a witness that might affect a witness’s testimony.  State v. Lanz-Terry, 535 N.W.2d 635, 640 (Minn. 1995).  Admitting evidence of Sabot’s potential bias assisted the jury in evaluating her credibility and was not error.  See State v. Profit, 591 N.W.2d 451, 467 (Minn. 1999) (holding that a reviewing court must recognize that the jury is in the best position to evaluate the credibility of witnesses).

            Third, appellant argues that, because his prior offense occurred before the effective date of the sentencing legislation, the application of the mandatory minimum sentence for this offense is a violation of the ex post facto clauses of the Minnesota and United States Constitutions.  U.S. Const. art. I, § 10; Minn. Const. art. I, § 11.  A law is ex post facto if it punishes an act not punishable when it was committed, increases the punishment for a crime after it is committed, or deprives one charged with a crime of defenses available when committed.  State v. Manning, 532 N.W.2d 244, 247 (Minn. App. 1995) (citing Collins v. Youngblood, 497 U.S. 37, 52, 110 S. Ct. 2715, 2724 (1990)), review denied (Minn. July 20, 1995).  But use of a previous conviction to increase the penalty for a subsequent conviction does not violate ex post facto protections.  State v. Willis, 332 N.W.2d 180, 185 (Minn. 1983).  This court has interpreted repeat-offender statutes as increasing the penalty for a current offense, not as punishment for a past offense.  State v. Dumas, 587 N.W.2d 299, 304 (Minn. App. 1998), review denied (Minn. Feb. 24, 1999).  Because this statute creates an increased penalty for a subsequent crime, appellant’s ex post facto argument fails.          


*  Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[1]  Assault in the second degree is assault with a dangerous weapon.  Minn. Stat. § 609.222 (1998).  An assault is defined as “[a]n act done with intent to cause fear in another of immediate bodily harm or death; or [t]he intentional infliction of or attempt to inflict bodily harm upon another.”  Minn. Stat. § 609.02, subd. 10 (1998).  Because of his criminal record, which was stipulated to at trial, appellant is a person prohibited by law from carrying a firearm.  Minn. Stat. § 624.713, subd 1(b) (1998).