This opinion will be unpublished and

may not be cited except as provided by

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






State of Minnesota,





Marlin Byron Parks,



Filed January 16, 2001


Shumaker, Judge


Hennepin County District Court

File No. 99073500



Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55155; and


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


John M. Stuart, State Public Defender, Rochelle R. Winn, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)


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


U N P U B L I S H E D   O P I N I O N



Appellant Marlin Byron Parks challenges his conviction of first-degree burglary, arguing that the victim’s identification, based on a show-up conducted shortly after the offense, was unreliable and that circumstantial evidence, consisting primarily of appellant’s partial fingerprint at the burglary scene, was insufficient to support the conviction.  We affirm.



On July 26, 1999, sometime between 11:30 and 11:50 a.m., a burglary occurred at the home of James Bernacki, in the area of 36th Avenue South and 55th Street in Minneapolis.  Bernacki arrived home over the lunch hour.  He noticed that the kitchen window was open, observed movement in his home, and saw the appellant, Marlin Byron Parks, walking towards him.  Parks said, “Give me your * * * money” and punched Bernacki in the face.  Parks then pulled his shirt collar up to conceal his face and ran from the house.

            Prior to any report of the burglary, Officer Daniel Wells arrived in the neighborhood in response to two calls from neighbors, both reporting suspicious activity by two men, one matching Parks’s description.  Wells canvassed the neighborhood, and stopped Parks at approximately 11:45 a.m. on the basis of the callers’ descriptions.  Parks wore a white tee shirt and carried a gym bag.  In the bag, Wells found a blue-and-white plaid shirt that matched the description given by one of the neighbors.  Wells found a screwdriver in Parks’s back pocket.  Parks stated he was on his way home from playing basketball.  Wells brought Parks to the neighbor’s home for a show-up.  She was able to identify Parks as one of the prowlers.

At 11:59 a.m., Wells received a report of the Bernacki burglary.  Wells  brought Parks to Bernacki’s home for a show-up.  Initially, the officer left Parks in the squad car with the back window rolled up.  Bernacki was about 20 yards away from the vehicle.  At this point, Bernacki could not positively identify Parks.  The officer had Bernacki move closer to the car, removed Parks from the car, and put the blue-and-white plaid shirt over Parks’s shoulders.  Bernacki then said, “Yes, this is the man that was in my house.”

            Parks was charged with burglary in the first degree.  Following a jury trial, Parks was convicted and sentenced to 58 months in prison.  Parks appeals the judgment of conviction on the basis that there was insufficient evidence to support his conviction.


In reviewing the sufficiency of the evidence, this court must determine whether, in light of the record and the inferences that can be drawn from the facts therein, a reasonable jury could have concluded that the defendant was guilty of the charged offense.  State v. Wallace, 558 N.W.2d 469, 472 (Minn. 1997); State v. Bias, 419 N.W.2d 480, 484 (Minn. 1988).  We view the evidence in the light most favorable to the finding of guilt and assume that the jury believed the state’s witnesses and disbelieved any contrary evidence.  State v. Drieman, 457 N.W.2d 703, 711 (Minn. 1990); State v. Pieschke, 295 N.W.2d 580, 584 (Minn. 1980).  The issues of credibility and weight of the evidence are for the jury to decide.  Bias, 419 N.W.2d at 484.

The sole issue at trial was the identity of the burglar.  Parks concedes that he was convicted largely due to Bernacki’s identification and raises no issue as to the neighbor’s pretrial identification.  Parks argues that there was insufficient evidence to support the jury’s conclusion that he was the burglar in Bernacki’s home because Bernacki’s pretrial identification was unreliable, because the police forced him to put his fingerprint on Bernacki’s window screen, and because the close timing between when the burglary occurred and when the officer stopped Parks all tend to exonerate him.

The Show-up Procedure

In evaluating pretrial identification evidence, 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 was 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 opportunity of the witness to view the criminal at the time of the crime;


2.         The witness’ degree of attention;


3.         The accuracy of the witness’ prior description of the criminal;


4.         The level of certainty demonstrated by the witness at the photo display;


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 (Minn. 1977)); see also Neil v. Biggers, 409 U.S. 188, 199, 93 S. Ct. 375, 382 (1972). 

While a show-up by nature is suggestive, the question becomes whether the show-up procedure used was unnecessarily suggestive.  State v. Taylor, 594 N.W.2d 158, 162 (Minn. 1999).  The show-up procedure in this case was not unnecessarily suggestive.  The police arrived at Bernacki’s house within five minute of Bernacki’s 911 call.  Parks wore his own clothing.  The officer explained the show-up procedure to Bernacki and assured Bernacki that he would be safe.  However, the officer did not state whether Parks was the burglar and did not indicate that Parks had already been identified by another eyewitness.  Thus, this methodology is not so suggestive as to create a substantial likelihood of irreparable misidentification.  

            Even if the procedure is arguably unnecessarily suggestive, the identification is admissible because application of the Bellcourt factors supports a conclusion that the identification is reliable:  Bernacki had an opportunity to view Parks in a brightly lit room from a range of 10 to 15 feet; his attention was focused on Parks for nearly two minutes and he was concerned with getting an accurate description; his description of Parks in his call to 911 was detailed and accurate; his identification of Parks occurred shortly after Parks was removed from the squad car; and his identification was within an hour of the burglary.  As a result, the totality of the circumstances makes the pretrial identification reliable.

Reliability of the Identification


            Parks argues in his pro se supplemental brief that the jury should have disregarded Bernacki’s identification as unreliable because Bernacki misidentified the style of undershirt Parks was wearing on the day of the burglary and because Bernacki failed to identify the gap in Parks’s front teeth.  The Minnesota Supreme Court has consistently upheld convictions on the identification of a single witness.  Caldwell v. State, 347 N.W.2d 824, 828 (Minn. App. 1984).  Identification testimony

need not be positive and certain, but that it is enough for a witness to testify to his opinion, belief, impression, or judgment that the defendant is the person he saw commit the crime.  The factors affecting the reliability of eyewitness testimony to which the defendant refers – time for observation, circumstances under which observation was made, etc. — go to the weight to be accorded to the testimony, not the admissibility.


Caldwell, 347 N.W.2d at 828.  It is for the trier of fact to determine the credibility of the witnesses, as well as the weight of evidence admitted.  State v. Bias, 419 N.W.2d 480, 484 (Minn. 1988).

Parks first argues that Bernacki’s identification is unreliable because Bernacki described the burglar as wearing a plain white tee shirt under the blue plaid shirt.  Parks was wearing a white sleeveless tee shirt on the day of the burglary.  Given that Bernacki was viewing the undershirt underneath the blue plaid shirt, there does not appear to be a discrepancy in his description.

            Second, Parks argues that Bernacki’s identification is unreliable because he failed to identify Parks’s missing front teeth.  While inquiring about the description of the burglar, an officer asked Bernacki if the burglar was missing any teeth.  Bernacki told the officer no.  Bernacki testified at trial that he noticed a “space or something” in Parks’s teeth.  Bernacki only viewed the burglar’s mouth for an instant, before the burglar covered his mouth with his shirt collar.  The discrepancy between the description of Parks’s mouth is minor, such that it does not render the identification unreliable.

            Mindful of the deference given to a jury’s determination, a jury could find that Bernacki’s identification of Parks was reliable and accurate, despite an inconsequential omission of detail.

The Fingerprint

            Next, Parks argues in his brief and supplemental pro se brief that the jury should have accepted his own testimony that an officer forced him to touch the window screen.  Bernacki testified that he never saw this occur, and the officer denied Parks’s story.  It is up to the jury to measure the ultimate credibility of any witness.  State v. Merrill, 274 N.W.2d 99, 111 (Minn. 1978).  Mindful of this standard, the jury could have disregarded Parks’s explanation.

The Timing of Events

            Finally, Parks argues that, because the timing of events occurred in such a close time period, he could not have been the burglar.  Parks was stopped at approximately 11:45 a.m.  Bernacki testified that he arrived home and interrupted the burglary sometime between 11:45 and 11:50 a.m.  Thus, Parks argues, he could not have been the burglar.  Even if the time period is inconsistent, “inconsistencies in the state’s case will not require a reversal of the jury verdict.”  Pieschke, 295 N.W.2d at  584.





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