This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
IN COURT OF APPEALS
Hennepin County District Court
File No. 00047098
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Amy Klobuchar, Hennepin County Attorney, Jean E. Burdorf, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)
John M. Stuart, State Public Defender, Susan J. Andrews, Assistant State Public Defender, Suite 600, 2829 University Avenue, Southeast, Minneapolis, MN 55414 (for appellant)
Considered and decided by Stoneburner, Presiding Judge, Klaphake, Judge, and Foley, Judge.*
Appellant challenges her conviction and sentence for attempted first-degree murder, arguing that (1) there was insufficient evidence of her identity to support her conviction and (2) the upward departure from the presumptive sentence under the sentencing guidelines was an abuse of discretion. Because the identity evidence was sufficient to support the conviction and the district court did not abuse its discretion by departing from the guidelines, we affirm.
On the afternoon of February 21, 2000, Jimmy Jones and David Anthony Todd were at a friend’s house in Minneapolis. Todd decided to run an errand and arranged for his nephew, Albert Rice, to pick him up. Jones decided to accompany Todd.
Rice drove to the house to meet them. While he was waiting in his car for Todd and Jones, a woman whom he did not know got into the front passenger’s seat of his car and started talking to him. Todd came out of the house, followed by Jones. Jones realized he had left his cellular phone inside the house. As Jones turned to go back into the house, the woman pulled out a gun and shot Jones in the stomach and back. He fell to the ground. Todd saw the woman draw her pistol and ran for cover.
The woman left Rice’s car, approached Jones, stood over him, and opened fire again. Jones saw the woman’s face as she stood over him, firing. The woman finally pointed the gun directly at Jones’s head and pulled the trigger, but it jammed. The woman fled before the police arrived. She had shot Jones seven times. Several bystanders witnessed the shooting. Jones survived.
The police found spent 9 mm. cartridges in front of the house, but no gun. No usable prints were found in Rice’s car. Witnesses described the woman as African-American, about five-and-a-half feet tall, weighing about 130 pounds, and wearing a black leather coat with a fur collar.
Within a few days, the police received a tip that the shooter was nicknamed “Shira” and lived in the neighborhood with her mother at 2209 Ilion Avenue in Minneapolis. Upon further research, the police associated that address with the person named as appellant’s mother and learned from their records that 2209 Ilion was also the home address of appellant Princess Kashira Abdullah.
The police put together a photo lineup that included a picture of Abdullah and five others who matched the physical description given. Jones saw the photo line-up in the hospital on February 26, 2000, and identified Abdullah as the woman who shot him. The police showed the lineup to Todd and Rice, but neither positively identified Abdullah.
The police obtained a warrant and searched 2209 Ilion. Outside, they found a box of 9 mm. ammunition. Inside, they found some loose 9 mm. ammunition and a black leather coat with a fur collar.
Abdullah was arrested and charged with attempted murder in the first degree, attempted murder in the second degree, assault in the first degree, and assault in the second degree. At trial, Jones positively identified appellant as the shooter and testified that he was “100% sure” about his identification. A maintenance worker, who witnessed the shooting from next door, testified he was at least 98% sure of his identification of appellant as the shooter. The jury found Abdullah guilty of attempted murder in the first degree, assault in the first degree, and assault in the second degree.
At the sentencing hearing, Abdullah testified that in January or February 2000, she and Jones fought over some crack cocaine in her possession. Abdullah denied that she intended to kill Jones, but admitted that she intended to “[p]ay him back for what happened to me. He’d never forget just like I never forget.” On cross-examination, she further acknowledged that she was “out to get [Jones] for what he had done.” Abdullah testified she stopped shooting because the gun jammed, and when asked whether she would otherwise have kept shooting, she stated “I don’t know. I can’t say.”
The district court disagreed with defense counsel’s claim that appellant’s crime was no more outrageous or cruel than any other attempted first-degree murder and granted the state’s request for an upward departure. The court stated that Jones was treated with particular cruelty by Abdullah for which she should be held responsible, noting the point-blank shootings and her failure to notify medical personnel. The district court sentenced appellant to 216 months in prison, a 36-month departure from the presumptive sentence of 180 months. This appeal followed.
1. Sufficiency of the evidence
Where there is a challenge to the sufficiency of evidence, appellate courts carefully review the record “to determine whether the evidence, when viewed in a light most favorable to the conviction, was sufficient to permit the jurors to reach the verdict which they did.” State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). A reviewing court must assume “the jury believed the state’s witnesses and disbelieved any evidence to the contrary.” State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989) (citation omitted).
Abdullah argues that the evidence was not sufficient for the jury to reasonably conclude that she was the person who shot Jones.
Identification is a question of fact for the jury to determine. Identification testimony need not be absolutely certain; it is sufficient if the witness expresses a belief that she or he saw the defendant commit the crime. The jury determines the weight and credibility of individual witnesses and of the defendant’s story and a conviction may rest on the testimony of a single credible witness.
State v. Miles, 585 N.W.2d 368, 373 (Minn. 1998) (emphasis added) (citation omitted). Here, the jury had evidence of Jones’s identification of Abdullah’s photo in the lineup and the in-court identifications of Abdullah by Jones and the witness who saw the shootings from next door. At trial, that witness and Todd also identified the black leather coat with a fur collar found at Abdullah’s home by the police as the one worn by the shooter, and police testified about the 9 mm. ammunition outside and inside Abdullah’s home. The evidence of Abdullah’s identity was sufficient to support her conviction.
Abdullah argues that the district court abused its discretion by departing from the presumptive sentence under the guidelines. We review departures from the sentencing guidelines under an abuse-of-discretion standard, but there must be “substantial and compelling circumstances” in the record to justify a departure. Rairdon v. State, 557 N.W.2d 318, 326 (Minn. 1996) (citations omitted). Also, the sentencing court “should consider whether the defendant’s conduct was ‘significantly more or less serious than that typically involved in the commission of the crime in question.’” Id. (quoting State v. Back, 341 N.W.2d 273, 276 (Minn. 1983)).
Here, the district court stated that Abdullah treated Jones with particular cruelty for which she should be held responsible, noting that Abdullah shot Jones multiple times at point-blank range and did not call medical personnel. The Minnesota Sentencing Guidelines cite particular cruelty to the victim for which the individual offender should be held responsible as an aggravating factor. Minn. Sent. Guidelines II.D.2.b.(2). The district court rejected Abdullah’s argument that this case was no more outrageous than any other attempted first-degree murder. The court noted that in the two years it had served on the bench, during which it had sentenced more than 200 felonies, it had “never seen such brutality and cruelty.” The district court made specific findings based on valid aggravating factors and did not abuse its discretion by departing from the guidelines.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.