This opinion will be unpublished and

may not be cited except as provided by

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







In the Matter of the Welfare of: A.E., a/k/a A.N.E.



Filed December 12, 2000


Anderson, Judge


Kandiyohi County District Court

File No. J09951010


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


Boyd Beccue, Kandiyohi County Attorney, Tracy L. Perzel, Assistant Kandiyohi County Attorney, 316 Southwest Fourth Street, Willmar, MN  56201 (for respondent)


Lawrence Hammerling, Deputy State Public Defender, D. Adrian Bryan, Special Assistant Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN  55414 (for appellant)


            Considered and decided by Klaphake, Presiding Judge, Harten, Judge, and Anderson, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant, adjudicated delinquent for crimes committed for the benefit of a gang pursuant to Minn. Stat. § 609.229 (1998), claims expert testimony about 15 gang members was cumulative and more prejudicial than probative requiring a new trial.  Because we conclude that this testimony was not so cumulative or prejudicial as to require a new trial, we affirm.


            Appellant A.N.E. and two friends were involved in an altercation with an alleged rival gang member in Willmar, Minnesota.  As a result of this altercation, appellant was charged with:

1.                  Assault in the fifth degree committed for the benefit of a gang in violation of Minn. Stat. § 609.224, subd. 1(2), and Minn. Stat. § 609.229, subds. 2 and 3(b);


2.                  Riot committed for the benefit of a gang in violation of Minn. Stat. § 609.71, subd. 3, and Minn. Stat. § 609.229, subds. 2 and 3(c); and


3.                  Criminal damage to property in the fourth degree committed for the benefit of a gang in violation of Minn. Stat. § 609.595, subd. 3, and Minn. Stat. § 609.229, subds. 2 and 3(b).

During a bench trial, police officers who were qualified as experts testified to the existence of gangs in the Willmar area and about certain local teens involved in criminal activity and street gangs to show the crimes were “committed for the benefit of a gang” within the meaning of Minn. Stat. § 609.229 (1998).  This testimony identified 15 individuals labeled by police as gang members and the criminal history records of eight of those persons.  Finding appellant guilty of the crimes charged, the district court adjudicated appellant delinquent.

Appellant now appeals his adjudication, arguing that the district court abused its discretion by admitting gang evidence that was unnecessarily cumulative and more prejudicial than probative.


            Appellate courts largely defer to the district 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).   “On appeal, the defendant has the burden of proving that the district court abused its discretion in admitting the evidence and that the defendant was thereby prejudiced.”  State v. Willis, 559 N.W.2d 693, 698 (Minn. 1997).    

            Under the gang-crime statute, the state is required to prove appellant committed a crime for the benefit of a gang; a criminal gang is defined as a group that

1.                  has, as one of its primary activities, the commission of one or more of the offenses listed in section 609.11, subdivision 9;


2.                  has a common name or common identifying sign or symbol; and


3.                  includes members who individually or collectively engage in or have engaged in a pattern of criminal activity.


Minn. Stat. § 609.229, subd. 1 (1998).  To prove that appellant acted for the benefit of a gang, the state necessarily must introduce some evidence of criminal activity committed by gang members.  State v. Chuon, 596 N.W.2d 267, 270 (Minn. App. 1999) review denied (Minn. Aug. 25, 1999).

            To meet the statutory requirements of Minn. Stat. § 609.229, the state introduced the Minnesota Gang Strike Force Criteria (“MCSFC”)[1] for use in identifying as gang members:

1.                  Appellant and his two co-defendants for the purpose of establishing a gang-related association;


2.                  Four members of appellant’s gang and their criminal histories to show criminal activity of the gang (respondent argues this was necessary because appellant and co-defendants did not have the criminal background to satisfy this prong of Minn. Stat. § 609.229);


3.                  Four members of the rival gang and their criminal histories (respondent argues this was necessary to show appellant’s crimes were gang motivated);


4.                  The subject of the attack, who was a member of the rival gang but did not have the criminal history to be included with the above four members of his gang; and


5.                  Three additional members of the rival gang, who were the alleged perpetrators of a drive-by shooting that targeted appellant’s home.


            Appellant argues that the testimony relating to the 15 gang members, most of whom were not involved in this offense, was both prejudicial and cumulative.

            While appellant’s argument is not without some merit, we disagree.  To satisfy statutory requirements, the state was required to provide testimony about three or more persons who individually or collectively engage in a pattern of criminal activity.  Minn. Stat. § 609.229, subd. 1.  This evidence of gang-member identification and activities is essential to establish an element of the state’s case under Minn. Stat. § 609.229, subd. 1.  Chuon, 596 N.W.2d at 270.  As a result, the probative value of this testimony outweighs any unfair prejudice.  Id.

            Although an argument can certainly be made that introducing testimony about 15 gang members was cumulative and excessive, any prejudicial effect of this testimony does not rise to a level requiring reversal.  The testimony was heard not by a jury, but by the court, which lessens any effect of prejudicial harm.  See State v. Hofman, 549 N.W.2d 372, 376 (Minn. App. 1996) (the possibility of any unfair prejudice is diminished by the fact that the case was tried to a judge without a jury) review denied (Minn. Aug. 6, 1996). 

            The expert testimony identifying individuals as gang members was also limited in nature.  The officers discussed why they believed these individuals were gang members by explaining the MCFSC criteria each potential gang member satisfied and recited the criminal histories of certain gang members without mentioning the details of the crimes.  The only alleged gang member to testify at trial was the subject of the attack, who admitted his membership in a street gang. 

            Moreover, appellant has not shown that a different result would have been reached had the evidence been excluded.  See State v. Blasus, 445 N.W.2d 535, 540 (Minn. 1989) (stating the test for whether erroneous admission of prejudicial evidence was harmless is whether any reasonable doubt exists that the result would have been different if the evidence had been excluded).  Accordingly, we conclude that the court did not abuse its discretion in admitting expert testimony identifying 15 individuals as gang members.

            Given our conclusion on the substantive merits of the district court’s ruling, we need not address respondent’s argument that waiver occurred when appellant failed to object to the introduction of gang testimony as cumulative or prejudicial.   


[1] The MGSFC sets forth ten criteria used to identify suspected and confirmed gang members.  A person who meets one or two of the criteria is a suspected gang member, and a person with three or more criteria is a confirmed gang member.