This opinion will be unpublished and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,
Robyn Keith Amos Jr.,
Filed March 19, 2002
Hennepin County District Court
File No. 00100223
Mike Hatch, Attorney General, Suite 500, 525 Park Street, St. Paul, MN 55103-2106; and
Amy Klobuchar, Hennepin County Attorney, Michael K. Walz, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)
Mark F. Anderson, Assistant State Public Defender, Suite 600, 2829 University Avenue S.E., Minneapolis, MN 55414 (for appellant)
Considered and decided by Lansing, Presiding Judge, Randall, Judge, Klaphake, Judge.
U N P U B L I S H E D O P I N I O N
On appeal from conviction and sentencing on felony drive-by shooting, Robyn Amos Jr. challenges the sufficiency of the evidence to support his conviction. In a pro se supplemental brief, Amos alleges violations of his Fourth and Sixth Amendment rights. Because the direct and circumstantial evidence support the conviction and the trial procedures did not violate Amos’s constitutional rights, we affirm.
F A C T S
A jury convicted Robyn Amos of drive-by shooting for the reckless discharge of a semiautomatic gun at the back of Dawn Hayes’s house in South Minneapolis. The incident stemmed from an argument over a stolen ring. Amos’s sister, Melissa Moe, who was staying at Hayes’s house, had a physical altercation with her father’s friend, Laura Jackson. During the altercation, Jackson removed her jewelry. When Moe’s and Amos’s father came to pick Jackson up, her diamond ring was missing.
A short time later, Amos and his father telephoned Hayes’s house and accused Moe of stealing Jackson’s ring. According to Hayes, at the end of the telephone conversation Amos threatened, “If we don’t get the jewelry back, some sh-t is going to go down. We are going to get it back.”
Within five minutes of the telephone conversation, Hayes’s mother and Moe saw a burgundy Cadillac Eldorado driving slowly through the alley behind Hayes’s house. Both recognized the car as belonging to Amos’s and Moe’s father and saw Amos and his father in the car. Hayes’s mother closed the door to the house and within minutes they heard the sound of shots hitting Hayes’s house. The people in the house got down on the floor of the living room. Moe went up the stairs to the bathroom where a window gave her a view of the alley. Hayes called 911.
A Minneapolis police officer, who heard shots and also heard the broadcast of the 911 call, stopped the burgundy Cadillac about a block away from Hayes’s house. Amos’s father was driving the car and two men were seated in the backseat; no one was in the front passenger seat. Amos’s father provided several false names before he was correctly identified. Because he did not have a valid license, the officer detained him. The officer had incomplete information on the incident and did not detain the two passengers. Neither Amos nor the gun was in the car. When the officer received a confirmed report that a gun had been involved in the incident, he transported Amos’s father back to Hayes’s house.
The witnesses at the house stated that Amos’s father had not shot the gun. Hayes’s neighbor described the person she saw in the front passenger seat and Moe said that it was her brother. The neighbor, who had been working in a shed in her yard, said the burgundy Cadillac had gone slowly up and down the alley two or three times and that three or four people were in the car. Police found shell casings in and around Hayes’s house and in the alley. Moe told police that her brother had a Tec-9 semiautomatic gun.
Three days later police obtained Moe’s statement. She told police that she had seen her father’s car stop in the alleyway behind Hayes’s house and had also seen Amos hang out of the car window and fire a Tec-9 semiautomatic gun at the house.
Within days of the shooting, police arrested Amos at the home of Frances Major. An informant called police and told them the Tec-9 semiautomatic gun was in the trunk of an inoperable Mazda parked in Major’s yard. Police maintained surveillance at Major’s house and arrested her when she took the gun from the Mazda’s trunk. A firearms examiner determined that two of the fifteen shell casings found in the alley had sufficient toolmarks to confirm they had been fired from the Tec-9 semiautomatic gun that Major removed from the Mazda’s trunk.
About a month later, a defense investigator telephoned Moe at her father’s house. She told the investigator that she had lied to police about seeing her brother shoot the Tec-9 semiautomatic gun. She said that she and Hayes were mad at Amos and made up the story.
At trial, Hayes’s mother testified that immediately before the shooting she saw Amos, his father, and a third person in a cranberry-colored car. She said that Amos was in the passenger seat and Amos’s father was driving. Hayes testified that Amos had called her house five minutes before the shooting and threatened them. She said that Moe identified her brother as the one who had shot at her house. Hayes’s neighbor testified that she had seen the maroon Cadillac going slowly up and down the alley and that she saw three or four people in the car. Major testified that Amos stayed at her house between the time of the shooting and his arrest, that after his arrest she received a call from an unidentified female who told her the gun was in the trunk of the disabled car, and that the keys to the car were kept on a hook in her hallway that was accessible to everyone else in the house. A ballistics expert testified that at least two of the expended shells retrieved from the alley behind Hayes’s house had been fired by the Tec-9 semiautomatic that was taken from the trunk of the Mazda.
Moe testified that she saw the car before the shooting and knew that it was her father’s car. She also testified that she saw her brother in the car in the front passenger seat but she had not seen him shooting the gun and had not been truthful when she told the police that she saw him shooting the gun. She acknowledged that at the time of the shooting she believed that her father was driving and her brother was the passenger because the neighbor who described the two people in the front seat of the car had “described my brother and my dad to a T.”
During the trial, the district court granted the state’s motion, made before the jury was sworn, to amend the charge against Amos to aiding and abetting a drive-by shooting. The court instructed the jury on the element of aiding and abetting.
On appeal, Amos argues that the evidence was insufficient to support the jury’s guilty verdict on drive-by shooting. In his pro se supplemental brief, Amos contends that his Fourth and Sixth Amendment rights were violated when the gun was introduced into evidence without identifying the informant who told police that the gun was in the trunk of the Mazda, without proof of constructive possession, and after expiration of a search warrant.
D E C I S I O N
When a conviction is challenged for insufficiency of evidence, this court may review only whether, when viewed in a light most favorable to the conviction, the evidence was sufficient to permit the jury to reach the verdict. State v. Folkers, 581 N.W.2d 321, 326 (Minn. 1998). We do not retry the facts; resolution of conflicting testimony is the exclusive function of the jury. State v. Bliss, 457 N.W.2d 385, 391 (Minn. 1990). Circumstantial evidence is weighed the same as other evidence, and a conviction based on circumstantial evidence will be upheld if the reasonable inferences from the evidence are consistent only with the defendant’s guilt and inconsistent with any other rational hypothesis. State v. Robinson, 604 N.W.2d 355, 366 (Minn. 2000).
Amos was charged with violating Minn. Stat. § 609.66, subd. 1e (2000), felony drive-by shooting. The statute prohibits any person who is in or has just exited from a motor vehicle from discharging a firearm at or toward another motor vehicle or a building. Id., subd. 1e(a) (2000). If the building is occupied, the sentence is more severe. Id., subd. 1e(b) (2000). At trial, the charge was amended to include aiding and abetting drive-by shooting. The judge instructed the jury, consistent with Minn. Stat. § 609.05 (2000), that a defendant is criminally liable for a crime committed by another if he aids, advises, or conspires with that person in the commission of the crime. Amos does not dispute that the evidence satisfies the elements of the crime, but he disputes that the evidence is sufficient to prove that he was the person who committed the crime.
The testimony at trial established that shortly before the drive-by shooting Amos made a threatening phone call to Hayes and Moe who were inside the house at which the shots were fired. Both Hayes’s mother and Moe testified that Amos was the person riding in the passenger seat of the burgundy Cadillac, the position in the front seat closest to Hayes’s house when the shooting occurred. Hayes’s neighbor provided a description of the person in the front passenger seat and the driver’s seat that Moe testified “described my brother and my dad to a T.” When the police stopped the vehicle 30 to 60 seconds after the shots were fired, the front passenger seat was empty and no gun was in the car. Moe testified that Amos had a Tec-9 semiautomatic gun that he kept under his bed. She identified the gun taken from the trunk of the Mazda in Major’s backyard as Amos’s gun. The Tec-9 gun was found in the Mazda within days of Amos’s staying at Major’s house. The Mazda keys were on a hook in a hallway and were accessible to anyone in the house. Two of the cartridge cases were positively identified as having come from the gun removed from the Mazda’s trunk. The remaining 13 cartridge cases could not be excluded as having come from the same gun.
Amos argues that the evidence is insufficient because Moe recanted her earlier statement to police that she saw Amos hanging out the window shooting the gun; that the testimony of Hayes, Hayes’s mother, Moe, and Major is inherently unreliable because aspects of the testimony are inconsistent; and because Major testified as part of a plea agreement and Moe testified pursuant to a grant of immunity. He also argues that the state failed to prove that he was the shooter because he was not in the burgundy Cadillac when it was stopped.
Amos’s arguments are primarily credibility arguments that were resolved by the jury and may not be reconsidered on appeal. We are not persuaded that the testimony of any of the witnesses is inherently incredible. First, some inconsistency and conflict in a particular area between one state witness and another does not establish that the testimony is not credible or that the jury’s verdict must be reversed. State v. Hanson, 286 Minn. 317, 334-35, 176 N.W.2d 607, 618 (1970). “This is especially true when the testimony goes to the particulars of a traumatic and extremely stressful incident.” State v. Stufflebean, 329 N.W.2d 314, 319 (Minn. 1983). Furthermore, the testimony, taken as a whole, was substantially consistent.
Second, Moe did not recant her entire statement, only that she had actually seen Amos shooting the gun. The jury had all of the evidence before it, including Moe’s subsequent statement to the defense investigator. It was for the jury to decide whether she was telling the truth at the time of the shooting or in her conversation with the defense investigator. At trial, Moe testified consistently with her statement to the police, that Amos was in the car in the front passenger seat, the gun belonged to Amos, the car belonged to her father, and her father was driving. Moe’s testimony was also consistent with the testimony of Hayes, Hayes’s mother, and Hayes’s neighbor. The jury also had before it the facts on Major’s plea agreement and Moe’s immunity from prosecution. It is fully within the province of the jury, and not an appellate court, to weigh those facts in assessing credibility.
Amos’s final argument, that he was not in the burgundy Cadillac when it was stopped, does not diminish the force of the direct and circumstantial evidence. The jury could have viewed the vacant front passenger seat as consistent with Amos having been in the car at the time of the shooting and that Amos had left the car with the gun between the time of the shooting and when the car was stopped. The evidence is sufficient for a reasonable jury to conclude that Amos was the person who shot the gun at Hayes’s house or that he was criminally liable because he aided and abetted the person who did the shooting in the commission of the offense.
In his pro se supplemental brief, Amos alleges that his Fourth and Sixth Amendment rights were violated by introduction of the gun into evidence. He first argues that his Sixth Amendment right to confrontation was violated when the district court admitted hearsay testimony and failed to require the state to provide the identity of the declarant, a confidential informant.
The police sergeant’s statements that the confidential informant told him that the gun was at Major’s home were not hearsay. They were not offered to prove that the gun was actually at Major’s home; they were offered to show the police sergeant’s motive for maintaining surveillance at Major’s home. Minn. R. Evid. 801(c) (defining “hearsay” as a statement “offered in evidence to prove the truth of the matter asserted”). Because the police sergeant’s statements were not hearsay, Amos was not deprived of a Sixth Amendment right to confront his accuser. State v. Hansen, 312 N.W.2d 96, 102-03 (Minn. 1981) (discussing when the admission of hearsay testimony may violate an accused’s right to confront his accuser) (emphasis added).
Amos also argues that his Fourth Amendment rights were violated because the search warrant that the police used to search Major’s home and subsequently seize the gun had expired and was therefore invalid. We note initially that Amos does not claim ownership of the car and thus, lacks standing to assert a Fourth Amendment right. Further, there is no evidence in the record to show that the search warrant had expired. Even if the search warrant had been issued on the same day the offense occurred, it would have still been valid under Minnesota law five days later when the gun was seized. See Minn. Stat. § 626.15 (2000) (providing that search warrants are valid for ten days after the date they are signed). Therefore, this argument also fails.
Finally, Amos argues that the state failed to prove that he constructively possessed the weapon. Amos was not charged with possession of the gun. The state used the evidence of the gun as part of the circumstantial evidence that showed Amos was the person who shot it or provided it for the drive-by shooting. It is not necessary to show exclusive possession, only that these facts are probative of one of the elements of the offense. These facts are probative. The direct and circumstantial evidence is sufficient to support the jury’s finding that Amos was guilty of drive-by shooting beyond a reasonable doubt, and we affirm.