This opinion will be unpublished and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,
Kandiyohi County District Court
File No. K4-99-254
Mike Hatch, Attorney General, James B. Early, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Boyd Beccue, Kandiyohi County Attorney, 316 Southwest Fourth Street, Willmar, MN 56201 (for respondent)
John M. Stuart, State Public Defender, Marie Wolf, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)
Considered and decided by Lansing, Presiding Judge, Amundson, Judge, and Shumaker, Judge.
U N P U B L I S H E D O P I N I O N
A jury found Angel Hernandez guilty of terroristic threats, fifth degree assault, disorderly conduct, and attempted theft. The jury also found him guilty of committing the first three offenses for the benefit of a criminal gang. The district court sentenced Hernandez only for the conviction of making terroristic threats for the benefit of a criminal gang. In his appeal from conviction and sentence, Hernandez challenges the admission of expert testimony on gang identification and the sufficiency of the evidence to prove that he committed a crime for the benefit of a criminal gang. Because we find no evidentiary error that warrants reversal, and the evidence is sufficient to prove that the terroristic threats were for the benefit of a criminal gang, we affirm.
A mall store manager confronted Angel Hernandez after the store manager saw Hernandez crouch down by a display table and stuff a pair of jeans into his jacket. The store manager told Hernandez to leave the store and then followed Hernandez and his two companions outside.
In the parking lot, Hernandez told the store manager that he was Angel Hernandez, the “Latin Kings’” leader, and that he was going to “kick [the store manager’s] ass.” A mall security guard, arriving to assist the store manager, testified that Hernandez said, “I’m the leader of the Latin Kings. I can do whatever I want. You know I can have you killed, have your butt wumped.” Another mall security guard testified that Hernandez said, “Do you know who I am? My name is Angel Hernandez. I’m head of the Latin Kings. I can kill you. I’m going to kick your ass. I’m gonna come back and kill you. I’m gonna kick all your guys’ asses.”
Before trial, the district court granted the state’s motion in limine to allow a police officer to testify as an expert witness on criminal gangs. The officer testified about the origin of criminal gangs, gang members’ criminal motivations, and the police department’s ten-point gang-identification criteria, and provided an opinion on which of the criteria Hernandez met. Over objection, the expert testified that in his opinion, Hernandez committed a crime for the benefit of a criminal gang.
The jury found Hernandez guilty on each of the submitted counts. The district court sentenced Hernandez to 30 months for making terroristic threats for the benefit of a criminal gang, but stayed execution of the sentence and placed him on probation for five years. Hernandez appeals, claiming (1) the district court abused its discretion in allowing expert testimony on criminal gang identification and (2) the evidence is insufficient to convict him of committing a crime for the benefit of a criminal gang.
Under Minnesota law, it is illegal to commit a crime “for the benefit of, at the direction of, in association with, or motivated by involvement with a criminal gang, with the intent to promote, further, or assist in criminal conduct by gang members.” Minn. Stat. § 609.229, subd. 2 (2000). A “criminal gang” is a group of three or more persons that “(1) has, as one of its primary activities, the commission of one or more 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 a pattern of criminal activity.” Id., subd. 1 (2000). Committing a crime for the benefit of a criminal gang is a substantive offense, not merely a sentencing enhancement factor. But it is punishable by a sentence greater than the sentence for the underlying crime. State v. Chuon, 596 N.W.2d 267, 270 (Minn. App. 1999), review denied (Minn. Aug. 25, 1999); see also Minn. Stat. § 609.229, subd 3 (2000).
Hernandez first argues that the district court erred in allowing expert testimony about gang activity. Evidentiary rulings rest within the district court’s sound discretion and this court will reverse those rulings only if the district court abused its discretion. State v. Willis, 559 N.W.2d 693, 698 (Minn. 1997). A defendant claiming that the district court erred in admitting evidence must show not only an abuse of discretion, but also that it resulted in prejudice. State v. Grayson, 546 N.W.2d 731,736 (Minn. 1996).
This court has previously recognized that the makeup and dynamics of a criminal gang are beyond the experience of the average lay juror, and an officer may offer expert gang-related testimony when it is helpful on an issue the jury must decide and when the officer is sufficiently qualified by education or experience. See State v. Carillo, 623 N.W.2d 922, 927 (Minn. App. 2001) (stating that officer having knowledge and experience concerning a particular gang’s activities “is able to offer a factual perspective that is both helpful and not otherwise available to a lay juror”). See generally Minn. R. Evid. 702. The officer who testified as an expert witness is a 21-year police veteran who has been assigned to investigate criminal gangs for more than two years, has attended numerous seminars designed to teach police officers about gangs, and testified that he has had “hundreds” of face-to-face encounters with local gang members. He was thus sufficiently qualified by education and experience and able to offer a factual perspective that was helpful and not otherwise available to the jurors See Carillo, 623 N.W.2d at 928. Accordingly, the district court did not abuse its discretion in concluding that the officer was qualified to testify as an expert witness.
Whether the expert testimony is helpful turns on the elements necessary to prove the substantive offense. Because Hernandez is being prosecuted for committing a crime for the benefit of a criminal gang, gang-related evidence is not only probative but essential to prove the state’s case. See Chuon, 596 N.W.2d at 270. Hernandez argues that the officer’s testimony on the statewide ten-point gang-identification criteria that police officers use to classify persons as gang members is not helpful because it is unreliable. The ten points of identification are: (1) admits gang membership or association; (2) is observed to associate on a regular basis with known gang members; (3) has tattoos indicating gang membership; (4) wears gang symbols to identify with a specific gang; (5) is pictured in a photograph with known gang members and/or using gang-related hand signs; (6) name is on a gang document, hit list, or gang-related graffiti; (7) is identified as a gang member by a reliable source; (8) is arrested in the company of identified gang members or associates; (9) corresponds with known gang members or writes and/or receives correspondence about gang activities; and (10) writes about gangs, graffiti on walls, books or paper. A person is considered a criminal gang member if he or she satisfies at least three of the criteria. Minn. Stat. § 299C.095 (2000).
To show that Hernandez satisfied most of these criteria, the officer stated that Hernandez is a self-proclaimed gang member, and the officer showed the jury Hernandez’s “gang file.” To demonstrate that Hernandez associates with other gang members, the officer testified about five other named individuals that he identified as Hernandez’s fellow gang members, listing crimes for which those persons had been convicted, and identifying whether or not those persons were incarcerated. The jury was also shown a list of the other gang members and those members’ offenses and conviction dates. The officer went on to describe Hernandez’s “gang” tattoos, illustrating this testimony with photos depicting Hernandez’s tattoos. Copies of letters that Hernandez had sent from jail to another gang member were also admitted into evidence because Hernandez had drawn “gang” symbols on the envelopes.
Hernandez analogizes the identification criteria to drug-courier profile evidence, which the Minnesota Supreme Court has held inadmissible as evidence of a defendant’s guilt. See State v. Williams, 525 N.W.2d 538, 547-48 (Minn. 1994). Evidence that the defendant in Williams fit the drug-courier profile was objectionable as substantive evidence of guilt because the profile was so elastic that anyone could fit it. See id. at 546-48 (criticizing the drug courier profile’s uselessness because, for example, airline passengers who carry luggage fit the profile but so do passengers who do not carry luggage). As demonstrated by Williams, profile testimony is inherently dangerous when it is offered to show guilt or propensity because it is both overinclusive and underinclusive and purports to give a scientific basis to criteria that are unscientific. Thus, using preconfigured criteria as evidence to prove propensity or guilt may invite reversal. The gang-identification criteria may also present a constitutional question if gang membership is determined by only three of the ten criteria, because several of the criteria are associational or affiliational. U.S. v. Robinson, 978 F.2d 1554, 1563 (10th Cir. 1992) (reiterating that affiliation evidence alone cannot support conviction).
Confined to the facts of this case, however, the use of the criteria does not result in prejudicial error that requires reversal. First, the expert based his opinion on nine of the ten criteria and, second, the criteria are more geared to self-identifying symbols advertising gang membership than characteristics consistent with common, and innocent, daily activities. Third, several of the criteria are set forth as required elements of proof under Minn. Stat. § 699.229, subd. 1(1) (2000).
The so-called criteria amalgamate the statutory elements necessary to prove criminal gang involvement with a list of descriptive expressions or events that would support an inference of gang membership. See Robinson, 978 F.2d at 1563 (declining to classify evidence of gang affiliation as a “profile” because profiles are used to investigate crimes while gang characteristics are meant to suggest that persons are gang members, not in itself illegal). Thus, in so far as the expert testimony relates to correspondence about gang activities, arrests in the company of identified gang members, and the crimes committed by the other gang members, these facts are admissible to prove that the defendant committed a crime for the benefit of a criminal gang. State v. Matelski, 622 N.W.2d 826, 832 (Minn. App. 2001), review denied (Minn. May 15, 2001) (allowing gang-membership evidence to prove that defendant committed crime for the benefit of a gang); Chuon, 596 N.W.2d at 270 (allowing evidence of crimes committed by criminal gang members other than defendant), review denied (Minn. Aug. 25, 1999).
The remaining criteria relate more narrowly to the specific identification of a person as a gang member and include a person who admits to criminal gang membership, associates with gang members, has gang tattoos, and is photographed with gang members. The determination of possible prejudice must be viewed in light of the state’s uncontradicted testimony from three separate witnesses at the time of the confrontation that Hernandez said he was the head or leader of the “Latin Kings.” Thus, the 10-point identification criteria, on the facts of this case, did not create prejudice that warrants reversal.
Hernandez also objects to the expert witness testifying about the ultimate issue in the case, stating that, in his opinion, Hernandez’s terroristic threats were for the benefit of a criminal gang. Otherwise admissible opinion testimony is not objectionable because it embraces an ultimate issue to be decided by the trier of fact. Minn. R. Evid. 704; State v. Bradford, 618 N.W.2d 782, 793 (Minn. 2000). But such an opinion is only admissible if it involves purely factual matters and avoids a legal analysis or mixed questions of law and fact. State v. DeWald, 463 N.W.2d 741, 744 (Minn. 1990).
Relying on State v. Provost, 490 N.W.2d 93, 101 (Minn. 1992), in which the supreme court held that psychiatric opinion testimony on whether a criminal defendant formulated a specific intent is inadmissible as a mixed question of law and fact, Hernandez argues that whether the terroristic threats were for the benefit of a criminal gang is really a question of his intent. But whether the terroristic threats were for the benefit of a criminal gang is a factual determination, rather than a legal one. See Bradford, 618 N.W.2d at 793-94 (concluding that medical examiner’s testimony that victim’s cause of death was homicide was admissible as fact question); DeWald, 463 N.W.2d at 744 (concluding that police officer’s opinion that defendant killed victim was admissible as factual testimony); see also People v. Valdez, 68 Cal. Rptr. 2d 135, 142-43 (Cal. Ct. App. 1997) (allowing expert witness to testify to “ultimate factual matter” as whether a crime was committed for the benefit of a gang because the question presented matters far beyond common juror experience). The district court therefore did not abuse its discretion in allowing the officer’s testimony.
Hernandez asserts that the evidence is insufficient to convict him of a crime committed for the benefit of, at the direction of, in association with, or motivated by involvement with a criminal gang and with intent to promote, further, or assist in criminal conduct by gang members.
On appeal, a reviewing court performs a painstaking analysis of the record to determine whether the evidence, when viewed in a light most favorable to the conviction, was sufficient for the jurors to reach their verdict. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). The reviewing court must assume the jury believed the state’s witnesses and disbelieved any evidence to the contrary. State v. Steinbuch, 514 N.W.2d 793, 799 (Minn. 1994).
The state’s expert witness testified that Hernandez’s underlying crime of making terroristic threats embodied the intimidation and threatening conduct that the gang characteristically used. The threats and intimidation allowed them to accomplish criminal activity without interference and prevent arrest or apprehension because its victims or potential witnesses were fearful of reporting the crimes. The expert testified to other offenses in which gangs, including the “Latin Kings,” had used this method of intimidation expressed through threats.
The direct evidence is consistent with the opinion evidence. The store manager and two mall security guards testified that Hernandez told them that he was the “Latin Kings’” leader, and that he was going to harm or kill them. One of the mall security guards also testified that Hernandez stated that “I’m the leader of the Latin Kings. I can do whatever I want. You know I can have you killed, have your butt wumped.” These statements plainly imply that Hernandez, as the “Latin Kings’” leader, could direct another criminal gang member to kill or harm the men. The evidence is sufficient to support the jury’s determination that Hernandez, accompanied by two other individuals, made terroristic threats for the benefit of, at the direction of, in association with, or motivated by involvement with a criminal gang, with intent to promote, further, or assist in criminal conduct by gang members. See Minn. Stat. § 609.229, subd. 2.