This opinion will be unpublished and

may not be cited except as provided by

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





In the Matter of the Welfare of: 







Filed April 10, 2001


Hanson, Judge


St. Louis County District Court

J7-99-651910 & J1-99-651739




Charlann Winking, Assistant State Public Defender, Office of the State Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN 55414 (for appellant)


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


Alan L. Mitchell, St. Louis County Attorney, Leslie E. Beiers, Assistant County Attorney, 403 Government Services Center, 320 West Second Street, Duluth, MN 55802 (for respondent)



            Considered and decided by Harten, Presiding Judge, Crippen, Judge, and Hanson, Judge.



U N P U B L I S H E D  O P I N I O N



On appeal from an adjudication of delinquency for felony theft and theft-by-swindle, appellant argues that the testimony of a single eyewitness, an employee of the business where the theft occurred, was insufficient to prove appellant’s involvement in the offense.  Appellant also argues pro se that his attorney provided ineffective representation by failing to call a witness.  We affirm.



Appellant R.A.F. was charged with trespass on school grounds in violation of Minn. Stat. § 609.605, subd. 4 (2000), felony theft in violation of Minn. Stat. § 609.52, subds. 2(1) and 3(3)(a) (2000), and felony theft by swindle in violation of Minn. Stat. § 609.52, subd. 2(4) (2000).  Following a one-day trial, the juvenile court adjudicated appellant delinquent for committing misdemeanor trespass and felony theft, or in the alternative, felony theft by swindle.  Appellant appeals only the theft adjudication.

On October 21, 1999, Rebecca Amundsen, who worked at Grand Slam Adventure World in Duluth, brought a backpack to work that contained approximately 65 compact disks, her purse, some clothes and other items.  Amundsen estimated the backpack and its contents were worth approximately $1500.  Amundsen left the backpack behind the redemption counter at Grand Slam.  The redemption counter is where customers redeem tickets for prizes.  Customers are also allowed to store items behind the counter, but there is no formal claim check system to reclaim them and the employees rely on memory.  On the night in question, Amundsen alternated working the redemption counter with Patrick Defoe. 

That same night, Katie Hogan took appellant and his friend, Tamarkus, to Grand Slam.  Hogan separated from appellant and his friend, but saw them throughout the evening.  Sometime between 8:45 and 9:15 p.m., Hogan told appellant and his friend that she was leaving.  Hogan went out to the parking lot, and the youths met her about five minutes later.  Hogan testified that both youths had white plastic bags.  They returned to appellant’s home, where Hogan saw the youths dump out the contents of their bags, which included whistles, candy, and other prizes from Grand Slam.  Hogan never saw the youths with a backpack or any compact disks or clothes.

At closing time, Amundsen discovered her backpack was missing.  She reported the bag missing to her manager and the police.  Three days later, the empty bag was found on the Slip Bridge, which is about 50 to 100 feet from the Grand Slam parking lot.

At trial, Patrick Defoe identified appellant, whom Defoe knew because they both attended the same school a few years earlier.  Defoe could not remember exactly how many times he saw appellant, but he did recall that appellant and his friend ultimately came to the counter to claim two plastic bags they had stored there.  Defoe testified that he showed appellant the backpack that was behind the counter and appellant claimed it as his own.  According to Defoe, appellant took the backpack and two plastic bags and left.

Appellant testified that he went to the redemption booth several times throughout the evening, and saw different people working at the counter each time.  Appellant acknowledged that he did ask for a plastic bag from the redemption counter so he could carry his prizes, but claimed he never stored the bag behind the counter.  Appellant denied ever seeing the backpack.


In a delinquency adjudication, the state must prove beyond a reasonable doubt “every fact necessary to constitute the charged crime.”  In re Welfare of S.M.J., 556 N.W.2d 4, 6 (Minn. App. 1996) (citing In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 1073 (1970)).  On appeal from a determination that the state has proven each of the elements beyond a reasonable doubt, “an appellate court is limited to ascertaining whether, given the facts and legitimate inferences, a fact finder could reasonably make that determination.”  Id. (citing State v. Merrill, 274 N.W.2d 99, 111 (Minn. 1978)).  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). 


Appellant argues that the identification was unreliable, and therefore there was insufficient evidence to sustain his conviction.  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 * * * 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.  The factors affecting the reliability of eyewitness testimony to which defendant refers—time for observation, circumstances under which the observations were made, etc.—go to the weight to be accorded the testimony * * *.       


Id. (quotation and citations omitted).  The trial court found Defoe’s testimony and identification of appellant credible.  The evidence was sufficient to support that finding.

In his pro se brief, appellant questions the credibility of Defoe’s testimony and appears to argue that the police should have charged Defoe with the theft.  These arguments go to the credibility of Defoe’s testimony.  It is not for this court to determine whether Defoe’s testimony was credible.  In re Welfare of S.A.M., 570 N.W.2d 162, 167 (Minn. App. 1997).


In his pro se brief, appellant raises a claim of ineffective assistance of counsel, arguing that his attorney failed to locate and call his friend Tamarkus to testify. 

To show ineffective assistance of counsel, an appellant must demonstrate that counsel's representation fell below an objective standard of reasonableness and that a reasonable probability exists that the outcome would have been different but for counsel's errors.  Scruggs v. State, 484 N.W.2d 21, 25 (Minn. 1992) (citing Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 2064 (1984)).  A strong presumption exists that counsel's performance fell within a wide range of reasonable assistance.  State v. Jones, 392 N.W.2d 224, 236 (Minn.1986).  Moreover, particular deference is given to the decisions of counsel regarding trial strategy:  "Which witnesses to call at trial and what information to present to the jury are questions that lie within the proper discretion of the trial counsel."  Id.

Counsel's alleged failure to call Tamarkus constitutes a matter of trial strategy.   See id. (holding defendant's contentions that his counsel failed to hire an investigator or interview prospective witnesses were matters of trial strategy).  Further, appellant has not explained how Tamarkus’ testimony could have overcome the identification made by Defoe or otherwise altered the outcome of the trial.  Accordingly, we reject appellant’s claim of ineffective assistance of counsel.