This opinion will be unpublished and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
State of Minnesota,
Lashawn Kenyatta Nicks,
Filed January 16, 2001
Hennepin County District Court
File No. 99003339
Mike Hatch, Attorney General, Suite 500, 525 Park Street, St. Paul, MN 55103-2106; and
Amy J. Klobuchar, Hennepin County Attorney, Mary M. Lynch, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)
John M. Stuart, State Public Defender, Scott G. Swanson, 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 Lashawn K. Nicks challenges his convictions for assault in the first degree under Minn. Stat. § 609.221, subd. 1 (1998), and possession of a pistol by an ineligible person under Minn. Stat. § 624.713 (1998), arguing that stipulated facts submitted at trial, particularly eyewitness identifications, were insufficiently incriminating to support appellant’s convictions. We affirm.
On January 9, 1999, Johnny Walker invited several guests to his home. A male known as “Doome” and a male named Quandis got into a heated argument over the alleged theft of a gold medallion. Guests separated the men, and they left the apartment complex.
Shortly thereafter, “Doome” and an individual known as “Duck” returned to Walker’s complex. Guests Pierre McNeal and Maurice Simmons were talking in the bathroom, with the door closed. “Duck” kicked open the bathroom door and fired several shots, injuring both men. Duck fired several more shots and wounded Clifford Brown. “Duck” and “Doome” left the apartment and drove away in a black Chevy Blazer.
Investigating officers learned that “Duck’s” legal name was Lashawn K. Nicks. Within three days of the shooting, all three of the victims identified Nicks, through a color-photo lineup, as the shooter. On January 12, 1999, officers arrested Nicks as he drove his black Chevy Blazer, and they recovered a 9-millimeter semiautomatic pistol from the vehicle.
The matter was tried on stipulated facts. The district court found Nicks guilty of two amended counts of assault in the first-degree and possession of a pistol by an ineligible person. On appeal, Nicks challenges the sufficiency of the evidence to support his convictions.
D E C I S I O N
An appellate court, in reviewing the sufficiency of the evidence in criminal cases, will apply the same standard of review to bench trials as is applied to jury trials. State v. Cox, 278 N.W.2d 62, 65 (Minn. 1979). Accordingly, the district court’s finding will be upheld if, based on the evidence contained in the record, “the district court could reasonably have found defendant guilty of the crime[s] charged.” Id. To warrant a conviction, the state must prove “beyond a reasonable doubt all of the essential elements of the crime with which the defendant is charged * * * .” State v. Ewing, 250 Minn. 436, 442, 84 N.W.2d 904, 909 (Minn. 1957). Review is “limited to a painstaking analysis of the record to determine whether the evidence, when viewed in a light most favorable to the conviction, was sufficient” to support the conviction. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).
Nicks argues that the evidence submitted, particularly eyewitness identifications late at night, based on fleeting observations, and photo lineups three days later, was insufficiently incriminating to support his convictions.
The elements of assault in the first-degree are met when an actor assaults another and inflicts great bodily harm. Minn. Stat. § 609.221, subd. 1 (1998).
Identification is a question for the fact-finder to determine. State v. Otten, 292 Minn. 493, 494, 195 N.W.2d 590, 591 (Minn. 1972). Identification testimony need not be certain; it is sufficient if the witness expresses a belief that he saw the defendant commit a crime. State v. Burch, 284 Minn. 300, 313, 170 N.W.2d 543, 552 (Minn. 1969). “[A] conviction can rest upon the testimony of a single credible witness.” State v. Bliss, 457 N.W.2d 385, 390 (Minn. 1990) (citation omitted). The factors relevant to evaluating an identification include:
(1) the opportunity of the witness to see the defendant at the time the crime was committed; (2) the length of time the [assailant] was in the witness’ view; (3) the stress the witness was under at the time; (4) the lapse of time between the crime and the identification; and (5) the effect of the procedures followed by the police as either testing the identification or simply reinforcing the witness’ initial determination that the defendant is the one who committed the crime.
Burch, 284 Minn. at 315-16, 170 N.W.2d at 553-54.
Immediately after the shooting, officers interviewed several parties who were present in Walker’s apartment when the shooting occurred. These interviews, coupled with the victims’ statements and physical evidence found at the scene of the shooting, point to Nicks as the shooter and support the district court’s finding that the state met its burden of proof beyond a reasonable doubt that Nicks was guilty of assault in the first degree and possession of a pistol by an ineligible person.
Witnesses’ opportunities to see the defendant at time of crime
After Maurice Simmons was shot, he asked the shooter, “Why you shoot me, Duckie? I ain’t do nothing, why you shoot me?” Simmons revealed that, although he never knew “Duckie’s” legal name, “I’ve seen him lots and lots of times,” and the two were part of the same social group.
All three victims gave similar statements to the police regarding the gunman, his actions, and his identity. All three victims had an opportunity to see Nicks at the time of the crime, and both Simmons and McNeal recognized him as an individual they knew by the nickname “Duckie.”
Length of time the assailant was in the witnesses’ view
Simmons and McNeal recognized Nicks as the shooter. Although the shooting lasted only for a few moments, the victims focused on the shooter and had sufficient opportunity to view him.
Stress the witnesses were under at the time of the crime
There is no evidence that the victims were under any type of stress that would interfere with their ability to identify the shooter.
Lapse of time between the crime and the witnesses’ identifications
Two days after the shooting, Simmons and McNeal told police they knew the identity of the shooter and positively identified Nicks from a six-person, color-photo lineup. Three days after the shooting, Brown positively identified Nicks from the same photo lineup as the gunman. All three were certain in their identifications within three days of the shooting. 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).
Effect of police procedures
Nicks has not alleged any facts that indicate that the police method of identification was suggestive or unfair.
The state adequately met all five Burch factors. Application of the Burch factors supports a conclusion that the evidence is reliable: all three victims had an opportunity to see Nicks from close range during the shooting; two victims viewed Nicks long enough to recognize him as an individual they knew; none of the victims was under stress; the victims’ identification of Nicks within three days of the crime was timely and certain; and the line-up lacked suggestibility.
The Minnesota Supreme Court has stated that
eye witness identification made upon fleeting or limited observation * * * is not reliable and in the absence of corroboration should not be the basis for conviction.
State v. Spann, 287 N.W.2d 406, 407-08 (Minn. 1979). Arguably, even if the three victims’ identifications of Nicks were made upon fleeting observations, the state produced sufficient corroborating evidence linking Nicks to the crime. Forensic testing revealed that several fired bullets and discharged cartridges found at the scene were fired from Nicks’ gun. Additionally, the state proved that the bullet removed from Simmons’ chest was fired from Nicks’ gun.
Walker stated that he watched the gunman and “Doome” enter a black Blazer. Nicks was arrested while driving his black Blazer, from which police recovered a nine-millimeter handgun. The investigation also suggested a relationship between “Doome” and the shooter. These corroborating factors support the sufficiency of all three victims’ identifications. State v. McAdory, 543 N.W.2d 692, 695-96 (Minn. App. 1996).
Based on the standard of review, this court may assume that the district court believed the victims’ statements, and disbelieved evidence to the contrary. 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 a light most favorable to the decision, the evidence was sufficient to support the convictions for both counts of assault.
Nicks also contends the identification evidence was insufficiently incriminating to convict him of being a felon in possession of a pistol. Any person who has been convicted of a crime of violence is ineligible to possess a pistol for a period of ten years after the restoration of his civil rights or the expiration of his sentence. Minn. Stat. § 624.713, subd. 1(b) (1998). The state proved that Nicks had been convicted of the felony of aggravated robbery in 1994, just six years prior to his present conviction. Robbery offenses are defined as crimes of violence. See Minn. Stat. § 624.712, subd. 5 (1998) (crime of violence includes attempted aggravated robbery). The state proved beyond a reasonable doubt that Nicks was a felon in possession of a pistol.
* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.