This opinion will be unpublished and

may not be cited except as provided by

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







State of Minnesota,





Robyn Keith Amos, Sr.,



Filed April 9, 2002


Parker, Judge*


Hennepin County District Court

File No. 00098963



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

Amy Klobuchar, Hennepin County Attorney, Michael K. Walz, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)


Bradford Colbert, Assistant State Public Defender, 875 Summit Avenue, Room 254, St. Paul, MN  55105 (for appellant)



            Considered and decided by Schumacher, Presiding Judge, Toussaint, Chief Judge, and Parker, Judge.


U N P U B L I S H E D  O P I N I O N


On October 14, 2000, Melissa Moe was involved in a fight with Laura Jackson, the girlfriend of her father, appellant Robyn Keith Amos, Sr., while they were at the home of Dawn Hayes.  During the fight, another woman allegedly took some of Jackson’s jewelry.  Later that day, Moe was in Hayes’s home when approximately 15 shots were fired into the back of Hayes’s home from a car in the alley.  Moe’s brother was arrested and charged with drive-by shooting and Amos, Sr. was arrested and charged with aiding and abetting the drive-by shooting.  After separate trials, each was convicted.


Amos, Sr. first argues that the trial court abused discretion in admitting Moe’s testimony from a previous trial.  The trial judge has broad discretion in evidentiary matters and his rulings will not be disturbed absent a clear abuse of discretion.  State v. Marchbanks, 632 N.W.2d 725, 730 (Minn. App. 2001).  Even if an evidentiary ruling is in error, a reversal is warranted only when the error substantially influences the jury to convict.  Id.

At Moe’s brother’s trial, Moe gave extensive testimony as to the circumstances surrounding the shooting.  But at her father’s trial two weeks later, Moe repeatedly declined to answer questions, saying that she could not remember what had happened or even what her testimony had been in her brother’s trial.  She claimed that her memory loss was due to her ongoing emotional state.  The court found that Moe was “not being cooperative,” and was “hostile,” and that it was not reasonable to believe that she could not recall things she had testified about two weeks earlier.  The court permitted the state to treat the witness as “hostile” and allowed use of her prior testimony.

Amos argues that because Moe’s testimony only claimed memory loss, and much of it was not contradictory to her testimony two weeks earlier, her earlier statements were inadmissible hearsay at his trial.  Although Minnesota courts have not yet spoken on this matter, many jurisdictions have come to the conclusion that a district court, upon finding memory loss to be selective or feigned, may admit a prior statement.  See, e.g.U.S. v. Bigham, 812 F.2d 943, 946-47 (5th Cir. 1987) (trial judge could reasonably conclude witness’s loss of memory was feigned and admit prior statement as inconsistent); U.S. v. Thompson, 708 F.2d 1294, 1302 (8th Cir. 1983) (holding that district court has discretion to determine whether evasive answers were inconsistent with previous statements);U.S. v. Collins, 478 F.2d 837, 838 (5th Cir. 1973) (where witness was unable to recall matters to which he had previously testified in great detail, prior testimony was admissible for impeachment and substantive purposes); State v. Marco, 368 N.W.2d 470, 473 (Neb. 1985) (inconsistency may be found in evasive answers, inability to recall, silence, or changes of position); State v. Brown, 651 A.2d. 19, 49 (N.J. 1994) (a feigned lack of recollection is an inconsistency on which the admission of a witness’s prior inconsistent statement may be based); State v. Lenarchick, 247 N.W.2d 80, 87 (Wis. 1976) (where a witness denies recollection of a prior statement and trial judge has reason to doubt the good faith of such denial, he may, in his discretion, declare such testimony inconsistent and permit the prior statement’s admission into evidence).  We believe a similar approach must prevail in Minnesota.  When the circumstances surrounding a witness’s testimony support the district court’s finding that the witness’s claimed lack of memory is fabricated, such testimony may be found to be inconsistent with a previous statement.

            At her brother’s trial, Moe testified with specificity to several events relevant to her father’s case, including the cause of the disputes she was involved in, discussions with her father regarding the missing jewelry, and what she saw during the shooting.  Given the fact that Moe herself was intimately involved in the events leading up to the drive-by shooting, which took place at a home while she was present, the trial court’s finding that her inability to remember those events was incredible is well justified by the evidence.  The trial court did not err in concluding that Moe’s memory failure was feigned and, therefore, inconsistent with her prior testimony.

            Amos next argues that, regardless of whether Moe’s prior testimony was properly admissible as prior inconsistent statements, it should not have been admitted as substantive evidence, but merely for impeachment purposes.

Although the state argues that Moe’s prior testimony was not used substantively, this point is not determinative.  The trial court instructed the jury that they were to consider evidence of an inconsistent statement by a witness on a prior occasion only to test the believability and weight of the witness’s testimony.

            Prior inconsistent statements need not be restricted to use for impeachment so long as the witness is presently available for cross-examination and the prior statement was made under oath.  Minn. R. Evid. 801 1989 comm. cmt.  Moe’s prior statement was given under oath, and Moe was available for cross-examination regarding that prior statement.  We conclude that the admission of the statement was proper even if used substantively.

            Lastly, Amos argues that the evidence was insufficient to prove that he aided and abetted the drive-by shooting.  In considering a claim of insufficient evidence, this court’s review is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, was sufficient to allow 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. Moore, 438 N.W.2d 101, 108 (Minn. 1989).  The reviewing court will not disturb the verdict if the jury, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude the defendant was guilty of the charged offense.  State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).

To be convicted of aiding and abetting a drive-by shooting, the state must prove that the defendant had the requisite intent and that the defendant contributed meaningfully to the criminal conduct of another person.  See generally State v. Gates, 615 N.W.2d 331 (Minn. 2000).  We conclude that the evidence of Amos, Sr.’s contributions is sufficient.  Testimony was received that Amos and Amos’s son made threatening calls regarding the return of Jackson’s jewelry only five minutes before the shots were fired.  Witnesses identified Amos, Sr. as the driver of the maroon car that was supposedly involved in the shooting, and when the police arrested him only a few minutes after the shooting, he was driving the maroon car.

Amos cites State v. Ulvinen, 313 N.W.2d 425 (Minn. 1981), to argue that his threats, combined with his son’s action, are insufficient to support his conviction for aiding and abetting the drive-by shooting, but the evidence in Ulvinen is drastically different from that presented in this case.  In Ulvinen, a mother agreed that her son should murder his wife.  Id. at 427,  Even though the son, in fact, murdered his wife, the supreme court held that the mother’s mere suggestion, without any evidence of her assistance in planning or accomplishing the crime, was insufficient.  Id. at 428.  The witnesses in this case testified that Amos was angry and threatening toward the residents of the home, and was later seen driving the car (from which the shots were fired) both immediately before the shooting and immediately afterward.  Unlike Ulvinen, this evidence would allow a jury to conclude that Amos affirmatively participated in the commission of the act.


* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.