This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C5-00-631

 

 

In the Matter of the Welfare of: T. L. R.

 

 

Filed December 26, 2000

Affirmed

Shumaker, Judge

 

Hennepin County District Court

File No. J399068829

 

 

William E. McGee, Fourth District Public Defender, Warren R. Sagstuen, Assistant Public Defender, 317 Second Avenue South, Suite 200, Minneapolis, MN 55401-2700 (for appellant)

 

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

 

Amy J. Klobuchar, Hennepin County Attorney, Linda M. Freyer, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

 

 

 

            Considered and decided by Willis, Presiding Judge, Shumaker, Judge, and Mulally, Judge.*

 

 

 

U N P U B L I S H E D   O P I N I O N

 

SHUMAKER, Judge

 

            Appellant T.L.R. challenges his adjudication of delinquency for aggravated robbery in the first-degree under Minn. Stat. § 609.245, subd. 1 (1998), arguing that the show-up identification was unnecessarily suggestive, and therefore the evidence was insufficient to support the adjudication.  We affirm.

FACTS

 

            Melissa Moen drove her car up to a stop sign and noticed three young males walking near the intersection.  One of the males had already crossed the intersection, and Moen motioned the other two males to cross in front of her.  A second male entered the crosswalk and stopped directly in front of the car.  A third male, T.L.R., approached the car, brandished a handgun, and ordered Moen to get out.  She complied and then struggled with T.L.R., who tried to take her purse.  T.L.R. got in the car, picked up his two companions, and all three left the scene.  Moen called 911 and described her car and the three males.  Shortly thereafter, Moen gave a statement to the police, again describing the three males. 

            The police found the car less than two hours after the incident.  They brought Moen to the scene where her car was located.  They had three males in custody there, and they conducted a show-up.  Of the three individuals, Moen was able to identify two, T.L.R., and another juvenile male.

The state charged T.L.R. with aggravated robbery in the first degree.  Moen identified T.L.R. at trial as one of the assailants.  The court found T.L.R. guilty of the charge.  On appeal, T.L.R. argues that the show-up procedure was unnecessarily suggestive, and that the statements the police made and procedures they used created a very substantial likelihood of irreparable misidentification.  Therefore, he contends, the evidence was insufficient to support his adjudication.

D E C I S I O N

            Rulings on evidentiary matters, including identification evidence, rest within the broad discretion of the trial court and will not be disturbed unless based on an erroneous view of the law or the court abuses its discretion.  Uselman v. Uselman, 464 N.W.2d 130, 138 (Minn. 1990).

            In determining whether the pretrial identification evidence must be suppressed, a two-part test is applied.  State v. Ostrem, 535 N.W.2d 916, 921 (Minn. 1995).  “The first inquiry focuses on whether the show-up procedure was unnecessarily suggestive.”  Id.  "Whether a pretrial identification procedure is unnecessarily suggestive turns on whether the defendant was unfairly singled out for identification."  Id.  “Under the second prong of the test, the identification evidence, even if suggestive, may be admissible if the totality of the circumstances establishes that the evidence is reliable.”  Id.  "If the totality of the circumstances shows the witness' identification has adequate independent origin, it is considered to be reliable despite the suggestive procedure."  Id. 

            The Minnesota Supreme Court has adopted the five factors articulated by the United States Supreme Court for evaluating the totality of the circumstances.  Those factors, denoted the Bellcourt factors, are:

(1)       the witness's opportunity to view the criminal at the time of the crime;

(2)       the witness's degree of attention;

(3)       the accuracy of the witness's prior description of the criminal;

(4)       the level of certainty demonstrated by witness at the show-up; and

(5)       the time between the crime and the confrontation.

 

Ostrem, 535 N.W.2d at 921 (citing State v. Bellcourt, 312 Minn. 263, 264, 251 N.W.2d 631, 633 (1977)); see also Neil v. Biggers, 409 U.S. 188, 199, 93 S. Ct. 375, 382-83 (1972).

            Moen testified that a police officer called her about 1˝ hours after the incident.  He told her that the police had recovered her car and that they found three males, who matched the descriptions she gave, standing near her car.

            The trial court acknowledged that the essential issue in the trial was one of identification, but reasoned that the show-up procedure was valid and

[t]he fact that the officers informed the victim that the individuals she was going to be asked to identify "fit the description" previously given is merely stating the obvious.  The officers wouldn't be asking her to identify people who didn't fit the description.  The Court agrees that the statement that the individuals she was going to be asked to identify were found near her car was suggestive.  But that fact does not create a substantial likelihood of irreparable misidentification. 

 

            During cross-examination Moen was asked if she recognized T.L.R. at the show-up.  She stated, "I said yes, but I was a little bit, like, hesitant.  I didn't want to say, like, for sure because I noticed that his clothes were different."   Further, Moen stated that after she told the police that she was hesitant about identifying T.L.R. because he was wearing different clothing at the show-up, the police told her that they had found darker clothing items in a nearby apartment.  The police then turned T.L.R.'s jacket inside-out and held up a black stocking cap near his head. 

            Although a show-up by nature is suggestive, the question is whether the procedure used was unnecessarily suggestive.  State v. Taylor, 594 N.W.2d 158, 162 (Minn. 1999).  The trial court held that the show-up was not so suggestive as to create a substantial likelihood of irreparable misidentification.  Arguably, even if the trial court had ruled that the show-up was unnecessarily suggestive, the totality of the circumstances indicates that Moen's identification had an adequate independent origin and was reliable despite the suggestive procedure.  Taylor, 594 N.W. 2d at 161.

 

Witness's opportunity to view the criminal at the time of the crime

 

            Moen had a substantial opportunity to view T.L.R. during the car-jacking incident.  She saw him when he approached her car, when he stood next to the  driver's-side door, when he stood inside the driver's-side door, and when he entered the car.  He was approximately six inches away from Moen when she got out of the car.

 

Witness's degree of attention

 

            Moen's attention was first drawn to the individual stopped directly in front of her car, but shortly thereafter it focused on T.L.R. as he approached her car.  She was able not only to describe T.L.R. but also to provide the details of his involvement in the car-jacking.  Moen was able to identify him at the show-up and to describe his role in the car-jacking.  Although she acknowledged that at some point her attention was focused on T.L.R.'s gun, she stated that she got a good look at T.L.R.’s undisguised face.  Her identification is further strengthened by the fact that she could not identify the third participant because her attention was drawn to T.L.R. and the other identified male.

 

Accuracy of the witness's prior description of the criminal

 

            Moen described the individual with the gun to the 911 operator as a thin black male, approximately 5'3" tall, 15 to 16 years old, dressed in dark clothing.  She also gave her description to the police approximately five to seven minutes after her 911 call, stating the three males were approximately 5'2" to 5'4" tall, 14 to 17 years old, had small builds, and wore dark clothing.

            Her in-court description, although more detailed than previously, was consistent with her initial description of T.L.R.  The record shows that T.L.R. was a thin black male about 5'6" tall, who was two months shy of his 15th birthday at the time of the offense.  Moen's description accurately described T.L.R.

 

The level of certainty demonstrated by witness at the show-up

 

            Moen testified that her identification of T.L.R. at the show-up was based on "his face, his build."  She stated that her certainty was reinforced when T.L.R.'s jacket was turned inside-out, but her identification was not based solely on T.L.R.’s clothing.  She testified that she was positive T.L.R. was the gunman and that her initial reservations were the result of T.L.R. appearing at the show-up in lighter-colored clothing and without a hat.

 

The time between the crime and the confrontation

 

            Moen identified T.L.R. at the show-up approximately two hours after the car-jacking incident.  See State v. Fox, 396 N.W.2d 862, 864 (Minn. App. 1986)(identification several months after crime was acceptable), review denied (Minn. Jan. 16, 1987).

            The trial court concluded that the evidence satisfied the second prong of the Ostrem test.  Moen, whom the court found credible, had a clear opportunity to see T.L.R., and gave consistent, accurate, and certain descriptions of him.  Thus, the court found the identification reliable.  Applying the Bellcourt factors, the trial court did not abuse its discretion in admitting Moen’s identification of T.L.R.

            To support a delinquency adjudication, the prosecution must prove each element of its case beyond a reasonable doubt.  In re Welfare of S.M.J., 556 N.W.2d 4, 6 (Minn. App. 1996).  An appellate court reviews the sufficiency of the evidence by viewing that evidence in the light most favorable to the verdict and assuming the fact-finder disbelieved any testimony in conflict with the verdict.  State v. Thomas, 590 N.W.2d 755, 757 (Minn. 1999); see also In re Welfare of S.A.M., 570 N.W.2d 162, 167 (Minn. App. 1997) (applying same standard in reviewing juvenile delinquency adjudication). The reviewing court will uphold the verdict if, giving due regard to the presumption of innocence and the state's burden of proof beyond a reasonable doubt, the fact-finder could reasonably have found the defendant guilty.  Thomas, 590 N.W.2d at 757-58.

The elements of aggravated robbery in the first degree in this case are that the actor, while committing a robbery, was armed with a dangerous weapon.  Minn. Stat. § 609.245, subd. 1 (1998).  The trial court found that the state met its burden of proof beyond a reasonable doubt.

            Based on the standard of review, this court may assume that the trial court believed Moen's testimony, and disbelieved evidence to the contrary.  The Minnesota Supreme Court has consistently upheld convictions on the reliable identification testimony of a single witness.  Caldwell v. State, 347 N.W.2d 824, 828, (Minn. App. 1984).  This court noted in Caldwell that a verdict may be based on the testimony of a single witness no matter what the issue, and that identification testimony

need not be positive and certain, but that it is enough for a witness to testify that it is his opinion, belief, impression, or judgment that the defendant is the person he saw commit the crime. 

 

Caldwell, 347 N.W.2d at 828.

It is for the trier of fact to determine the credibility of witnesses, as well as the weight of evidence admitted.  State v. Bias, 419 N.W.2d 480, 484 (Minn. 1988).

Drawing all legitimate inferences from the record in the light most favorable to the decision, the evidence was sufficient to support the adjudication.

            Affirmed.



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