This opinion will be unpublished and

may not be cited except as provided by

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






State of Minnesota,





Mitchell John Stark,



Filed May 28, 2002


Kalitowski, Judge


Meeker County District Court

File No. K600435


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


Michael J. Thompson, Meeker County Attorney, Meeker County Courthouse, 325 Sibley Avenue North, Litchfield, MN 55355-2155 (for respondent)


John M. Stuart, State Public Defender, Steven P. Russett, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)


            Considered and decided by Shumaker, Presiding Judge, Kalitowski, Judge, and Willis, Judge.

U N P U B L I S H E D   O P I N I O N


Appellant Mitchell Stark contends:  (1) the district court erred by allowing the state to amend its complaint after the commencement of the trial; (2) the evidence presented was not sufficient to support his conviction; (3) he was prejudiced by allowing expert testimony regarding his alleged membership in a gang; (4) his right to due process was violated; (5) the prosecutor engaged in misconduct; (6) he was denied effective assistance of counsel; and (7) his sentence should be modified because his accomplices received lesser sentences.  We affirm.





            Appellant contends the district court erred by allowing the state to amend its complaint to add an aiding-and-abetting charge after the commencement of the trial. Appellant argues he was prejudiced by the amendment because he had previously admitted that he was present at the shooting because he believed the state was only charging him as the shooter.

            The district court has discretion to amend a complaint under Minn. R. Crim. P. 17.05.

The court may permit an indictment or complaint to be amended at any time before verdict or finding if no additional or different offense is charged and if substantial rights of the defendant are not prejudiced.


 State v. Ostrem, 535 N.W.2d 916, 922-23 (Minn. 1995) (quoting Minn. R. Crim. P. 1705).

            A two-step process is used to determine whether Minn. R. Crim. P. 17.05 properly authorized the district court’s actions.  Id.  First, this court discerns whether the amended charge constituted charging an “additional or different offense.”  Minn. R. Crim. P. 17.05.  Second, the court must determine whether the defendant’s “substantial rights” were prejudiced because of the amendment.  Id.  A defendant’s “substantial rights” are not prejudiced unless the amendment adds a different offense.  Ostrem, 535 N.W.2d at 923.

            Appellant’s claim fails the first prong because it is “undisputed that aiding and abetting is not a separate substantive offense.”  Id. at 922 (citations omitted).  Moreover, the Minnesota Supreme Court has held a jury may convict the defendant of aiding and abetting despite the absence of “aiding and abetting” language in the complaint.  Ostrem, 535N.W.2d at 923; State v. Ortlepp, 363 N.W.2d 39, 45 (Minn. 1985); State v. DeFoe, 280 N.W.2d 38, 40 (Minn. 1979).

            We reject appellant’s contention that had he known he would be charged with aiding and abetting he would have objected to the state’s introduction of hearsay testimony claiming that appellant told a witness that he was present during the shooting.  This testimony would have been admitted under the hearsay exception, allowing an admission against self-interest.  Moreover, there was additional evidence indicating that appellant aided and abetted in the crime.  Thus, we conclude that the amendment to the complaint did not prejudice appellant’s substantial rights.


            Appellant claims the evidence presented did not support his conviction because there was not sufficient evidence to corroborate the accomplices’ testimony.  We disagree.

This court’s review of the sufficiency of the evidence is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in a light most favorable to the conviction, sufficiently supports the verdict.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  Circumstantial evidence is entitled to as much weight as other evidence.  Id.  We must view the evidence in the light most favorable to the state.  State v. McKenzie, 511 N.W.2d 14, 17 (Minn. 1994).  We will not disturb a verdict if the jury acted with due regard for the presumption of innocence and for the necessity of overcoming it by proof beyond a reasonable doubt.  State v. Davidson, 481 N.W.2d 51, 58 (Minn. 1992). 

Determinations of the credibility and weight to be given to the testimony are for the fact-finder alone.  State v. Lodermeier, 539 N.W.2d 396, 397 (Minn. 1995).  The reviewing court must assume that the finder of fact “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).  A conviction based on accomplice testimony, however, must be corroborated by additional evidence that “tends to convict the defendant of the commission of the offense.”  Minn. Stat. § 634.04 (2000). 

            Corroborating evidence may include factors such as association with those involved in the crime, motive, opportunity to commit the crime, and proximity to the crime scene.  State v. Adams, 295 N.W.2d 527, 533 (Minn. 1980). 

The quantum of corroborative evidence required in any case will depend on the circumstances involved, with consideration given to the claims of both the defendant and the state. 


State v. Mathiasen, 267 Minn. 393, 399, 127 N.W.2d 534, 539 (1964). 

            Here, the state introduced:  (1) testimony from two witnesses who stated appellant admitted he was present at the shooting; (2) evidence that appellant had access to the gun and fit the physical description of the shooter; (3) expert testimony showing that he was a member of the gang involved; and (4) testimony that he received a telephone call shortly before the shooting by the person who owned the truck used in the drive-by shooting.  Because the evidence indicates appellant was present at the shooting, had a reason to shoot the victim, and had access to the gun, we conclude there was sufficient evidence to corroborate the testimony of appellant’s accomplices.


Appellant argues the district court erred by allowing expert testimony regarding appellant’s membership in the gang because the officer-expert based his opinion on “unreliable gang identification criteria.”  We disagree.

Evidentiary rulings rest within the district court’s sound discretion, and this court will not reverse those rulings absent a clear abuse of that discretion.  State v. Willis, 559 N.W.2d 693, 698 (Minn. 1997).  Upon review, the defendant has the burden of proving that the district court abused its discretion in admitting the evidence and that the defendant was prejudiced.  Id.  Reversal is warranted only “when there is any reasonable doubt the result would have been different had the evidence not been admitted.”  Id. at 699 (quotation omitted).

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 (1998).  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 * * * identifying sign or symbol; and

(3)    includes members who individually or collectively engage in or have engaged in a pattern of criminal activity.


Id., subd. 1 (1998).  Minn. Stat. § 609.11, subd. 9 (1998), includes murder, assault, burglary, kidnapping, false imprisonment, manslaughter, robbery, witness tampering, criminal sexual conduct, arson, drive-by shooting, and other offenses.

Minn. R. Evid. 702 governs admissibility of expert testimony:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.


Rule 702’s basic requirement is helpfulness.  State v. Helterbridle, 301 N.W.2d 545, 547 (Minn. 1980).  If the jury has knowledge of or experience in the subject of the testimony and the expert’s testimony will not add precision or depth to the jury’s ability to reach conclusions, then the expert testimony is not helpful.  Id.

Here, an officer offered testimony concerning the Gangster Disciples and the reporting system used by the Minnesota Gang Strike Force to track gang members, including the ten-point gang-identification criteria.  The officer testified concerning his conclusion that appellant was a member of the gang because he met at least three of the ten-point identification criteria.

A district court does not abuse its discretion in permitting a police officer to offer an expert opinion on whether or not a particular group is a gang.  State v. Carillo, 623 N.W.2d 922, 927 (Minn. App. 2001), review denied (Minn. June 19, 2001).  Expert testimony on gangs may prove helpful to a jury, and police officers may testify about matters within their expertise.  Id.  Expert evidence on gangs is admissible where the district court determines

that the expert officer’s testimony will be helpful to the jury and that the officer possesses an adequate foundation of knowledge in the subject area to justify the opinion.


Id. at 928. 


A.        Expertise

Testimony from a law-enforcement official whose duties focus on criminal gangs and who has knowledge and experience concerning the activities of a particular gang is helpful to the jury.  Id. at 927.  Here, the officer (1) was involved with the Gang Strike Force from its inception in 1997 until 2001; (2) was a supervisor of the Minneapolis Gang Unit; and (3) was an investigator in the North Side Crack Team.  We conclude the district court properly found the officer was qualified to provide testimony.

B.        Helpfulness

Appellant asserts that the officer’s testimony on the ten-point gang-identification criteria is unreliable and is akin to impermissible character testimony.  We disagree.

Here the officer testified the behavior indicating gang membership included that:  (1) appellant was photographed displaying gang hand signs; (2) appellant wrote about gang matters to another member; and (3) appellant associated and lived with other gang members.

In arguing that the criteria are unreliable and akin to impermissible character evidence, appellant compares the gang-identification criteria to a drug-courier profile, which the Minnesota Supreme Court has held is inadmissible as evidence of a defendant’s guilt at trial.  See State v. Williams, 525 N.W.2d 538, 547-48 (Minn. 1994) (concluding admission of such evidence was error).  But unlike the drug-courier profile, which the supreme court found to be overly broad, the gang-identification criteria consist primarily of self-identifying symbols and conduct, and do not likely include many persons who are not gang members.  A person who admits to gang membership, associates with gang members, has gang tattoos, and is photographed with gang members, has identified himself as a gang member and likely is a gang member.  Being a gang member is not itself illegal.  See U.S. v. Robinson, 978 F.2d 1554, 1564 (10th Cir. 1992).  Gang members are the persons most likely to commit a crime for the benefit of a gang.  

Moreover, gang-related evidence is admissible to prove that the defendant committed a crime for the benefit of a gang.  State v. Matelski, 622 N.W.2d 826, 832 (Minn. App. 2001), review denied (Minn. May 15, 2001).  And, the criteria were formulated by the Criminal Gang Oversight Council.  Minn. Stat. § 299C.091, subd. 2 (b)(1).  We hold the probative value of the evidence outweighed any prejudice to appellant and the criteria are sufficiently narrow to identify actual gang members.  We conclude the gang-identification criteria is reasonable and sufficiently reliable to base a belief on whether an individual is a gang member.


Evidentiary rules are within the district court’s discretion and “will not be reversed absent a clear abuse of discretion.”  State v. Grayson, 546 N.W.2d 731, 736 (Minn. 1996) (citation omitted).  Citing State v. Kortkamp, 560 N.W.2d 93 (Minn. App. 1997), appellant argues his right to due process was violated when the state introduced evidence of crimes committed by members of the gang without providing notice of the specific crimes it would use to demonstrate a pattern of criminal activity.  We disagree.

First, the issue here is distinguishable from that decided in Kortkamp, which was a sentencing case.  Second, appellant was on notice of what crimes would be introduced because:  (1) the officer testified about particular crimes committed by specific members of the gang at the omnibus hearing; and (2) appellant knew the state needed to show prior criminal activity to show a gang existed.  We conclude appellant was on notice that crimes would be introduced to show a gang existed and that he had sufficient notice concerning what crimes would be introduced.


Appellant argues he is entitled to a new trial because the prosecutor engaged in misconduct at the trial.  We disagree.

The determination of whether a prosecutor committed misconduct and whether any misconduct was prejudicial generally lies within the district court’s discretion because the district court is in the best position to measure its effect.  State v. Voorhees, 596 N.W.2d 241, 253 (Minn. 1999).  The district court’s determination should be reversed

where the misconduct, viewed in the light of the whole record, appears to be inexcusable and so serious and prejudicial that defendant’s right to a fair trial was denied.


State v. Wahlberg, 296 N.W.2d 408, 420 (Minn. 1980) (citation omitted).

Here, appellant argues the prosecutor committed misconduct by:  making reference to hearsay testimony previously ruled inadmissible; implying that appellant’s counsel knew of a report of which appellant’s counsel claimed he did not; being sarcastic to a defense witness when the witness said his gang initial GD stands for “growth and development”; and personalizing his closing argument by using himself in a hypothetical where he was the criminal.

We conclude that because the complained-of conduct does not rise to the level of “inexcusable” and “so serious and prejudicial that defendant’s right to a fair trial was denied,” appellant is not entitled to a new trial.


Appellant argues he was denied effective assistance of counsel because his attorney did not object to the fact that some defense witnesses wore jail uniforms at trial.  We disagree.

To receive relief based on ineffective assistance of counsel, appellant must show first that, “counsel’s representation fell below an objective standard of reasonableness,” and second, “that the deficient performance prejudiced the defense.”  Strickland v. Washington, 466 U.S. 668, 687-88, 104 S. Ct. 2052, 2064 (1984).  To act within an objective standard of reasonableness, defense counsel must exercise the customary skills and diligence a reasonably competent counsel would exercise under similar circumstances.  Voorhees, 596 N.W.2d at 255.  “There is a strong presumption that a counsel’s performance falls within the wide range of ‘reasonable professional assistance.’”  State v. Jones, 392 N.W.2d 224, 236 (Minn. 1986). 

Here, appellant’s counsel failed to insist that the defense witnesses dress in street clothes, as is appellant’s right under Minn. R. Crim. P. 26.03, subd. 2(b).  Appellant correctly argues the prison uniforms may discredit the witnesses.  But, given the substantial evidence against appellant, we conclude that the result of the proceedings would not have been different but for the failure to dress some witnesses in street clothes.


Appellant argues his sentence should be modified because his accomplices received lesser sentences and that he should have been allowed to plead guilty to terroristic threats.  We disagree.

District courts have no discretion to depart from the guidelines unless mitigating or aggravating factors are present.  State v. Spain, 590 N.W.2d 85, 88 (Minn. 1999).  The sentences provided in the sentencing guidelines are presumed appropriate for every case.  Minn. Sent. Guidelines II.D.  Only in the “rare case” will an imposition of the presumptive sentence be reversed.  State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981).  

Appellant argues there is no difference between his culpability and that of his accomplices.  But as the state points out, appellant’s sentence is more properly compared to sentences of other persons convicted of the same crime.  See State v. Vazquez, 330 N.W.2d 110, 112-13 (Minn. 1983) (comparing defendant’s sentence to offenders who committed similar misconduct).  Moreover, because appellant went to trial rather than pleading guilty like his accomplices, he did not get the benefit of a plea bargain.  We conclude that the district court did not abuse its discretion by sentencing appellant pursuant to the sentencing guidelines.

Finally, we have reviewed the arguments in appellant’s pro se brief, and find them to be without merit.