This opinion will be unpublished and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

CX-00-2083

 

 

State of Minnesota,

Respondent,

 

vs.

 

Gilberto Emilio Vargas,

Appellant.

 

 

Filed August 14, 2001

Affirmed

Schumacher, Judge

 

Hennepin County District Court

File No. 99114860

 

 

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

 

Amy Klobuchar, Hennepin County Attorney, J. Michael Richardson, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for respondent)

 

J. Anthony Torres, Torres Law Office, Inc., 1401 West 76th Street, Suite 400, Richfield, MN 55423 (for appellant)

 

 

Considered and decided by Anderson, Presiding Judge, Randall, Judge, and Schumacher, Judge.


U N P U B L I S H E D O P I N I O N

SCHUMACHER, ROBERT H., Judge

Appellant Gilberto Emilio Vargas challenges his conviction of first-degree assault, arguing insufficiency of the evidence and ineffective assistance of counsel. We affirm.

FACTS

Vargas was convicted of first-degree felony assault. The conviction arose from an incident near a northeast Minneapolis bus stop around 1:00 a.m. on November 17, 1999. A 53-year-old man, waiting at a Central Avenue bus shelter, was beaten into unconsciousness and left lying bloody in the street. Witnesses to the assault immediately flagged down police and pointed out the culprits in a van leaving the scene. The police stopped that vehicle and removed the seven occupants, including Vargas and a juvenile T.M.J.

T.M.J. admitted to participating in the assault and testified against Vargas at trial. T.M.J. testified that Vargas first approached the bus shelter and started arguing with the victim. Vargas then started swinging at the victim, who was "kind of backing up." T.M.J. went over to get involved. T.M.J. and Vargas repeatedly kicked and stomped the victim as he fell down into the street. One other of their friends also joined in the assault. When they saw people gathering and screaming on the other side of the street, they ran away and jumped in the van.

The victim was transported to the hospital where he was stabilized and subsequently diagnosed with traumatic brain injury, seizure disorder, facial fractures, and nasal bone fractures. Several witnesses testified that they had observed several young people actively kicking, hitting and stomping on the victim. A forensic scientist testified that blood found on Vargas's pants and boot belonged to the victim.

D E C I S I O N

1. Vargas first argues that the evidence was insufficient to corroborate the accomplice testimony.

A conviction cannot be had upon the testimony of an accomplice, unless it is corroborated by such other evidence as tends to convict the defendant of the commission of the offense.

 

Minn. Stat. 634.04 (2000). "Corroborating evidence is sufficient to convict if it reinforces the truth of the accomplice's testimony and points to the defendant's guilt in some substantial degree." State v. Bowles, 530 N.W.2d 521, 532 (Minn. 1995) (citing State v. Jones, 347 N.W.2d 796, 800 (Minn.1984)). The sufficiency of the circumstantial evidence to corroborate an accomplice's testimony that the defendant participated in the crime is reviewed in the light most favorable to the verdict. Id.

Here, there is sufficient evidence to corroborate T.M.J.'s testimony. Witnesses testified that they observed several boys participating in the assault. Vargas was in the van that police stopped as it was leaving the scene and had the victim's blood on his boot and pants. Viewed in the light most favorable to the verdict, this evidence sufficiently links Vargas to the crime so as to corroborate T.M.J.'s testimony. See, e.g., State v. Pederson, 614 N.W.2d 724, 733-34 (Minn. 2000) (evidence sufficient to corroborate accomplice's testimony may consist of physical evidence associated with crime, testimony of eyewitnesses and experts at trial, and suspicious and unexplained conduct of accused).

Vargas argues that the blood on his boot and pants could have come from sitting on the curb or being at the scene when the fire department cleaned up the blood. Vargas contends that he got blood on his pants as a result of officers walking him through the area where the assault occurred as it was being cleaned by the fire department. But there was no testimony that Vargas or any of the suspects was exposed to the blood after the van was stopped. A police officer specifically testified that no suspects were in the area at the time the blood was cleaned off the street and curb. It was not unreasonable for a jury to conclude that the blood on Vargas's pants and boot was due to his participation in the assault.

2. Vargas argues ineffective assistance of counsel due to a conflict regarding payment of legal fees and counsel's preoccupation with being paid. Generally, an ineffective-assistance-of-counsel claim should be raised in a postconviction petition for relief, rather than on direct appeal. State v. Gustafson, 610 N.W.2d 314, 321 (Minn. 2000). Here, because the ineffective-assistance claim has not been raised in a postconviction petition, we need not consider the issue. See State v. Bjork, 610 N.W.2d 632, 633 n.3 (Minn. 2000) (deferring ineffective-assistance claim to postconviction proceedings).

Nevertheless, to establish ineffective assistance, a defendant must affirmatively prove (1) that counsel's representation fell below an objective standard of reasonableness and (2) that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987). Vargas argues that his trial counsel's "threats" regarding payment of legal fees establish ineffective assistance, and he points to some statements apparently written back and forth between Vargas and his trial counsel. The state responds that these statements were merely jocular reminders of the outstanding bill.

Whether threatening or jocular, the statements by themselves do not affirmatively prove that counsel's representation fell below an objective standard of reasonableness. The notes were apparently written during trial and reflect, among other things, Vargas's concern that his "alibi" that he was talking on a cell phone at the time of the assault was not being used. His defense counsel's responses referring to the outstanding bill may have been in poor taste, but they do not establish any inadequacy in his representation of Vargas at trial.

Affirmed.