This opinion will be unpublished and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

C1-01-2015

 

State of Minnesota,

Respondent,

 

vs.

 

Shaun Lee Kihega,

Appellant.

 

Filed September 17, 2002

Affirmed as modified
Klaphake, Judge

 

Hennepin County District Court

File No. 00097387

 

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

 

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

 

Steven P. Russett, Assistant State Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN  55414 (for appellant)

 

            Considered and decided by Klaphake, Presiding Judge, Schumacher, Judge, and Shumaker, Judge.

U N P U B L I S H E D   O P I N I O N

KLAPHAKE, Judge

            Appellant Shaun Kihega was convicted by jury of first-degree assault, Minn. Stat. § 609.221, subd. 1 (2000), second-degree assault, Minn. Stat. § 609.222, subd. 1 (2000), and crime (second-degree assault) committed for the benefit of a gang, Minn. Stat. § 609.229, subds. 2, 3(a) (2000).  Appellant was sentenced to 134 months, which represents the presumptive sentence of 122 months for the first-degree assault conviction, plus a 12-month enhancement for his conviction of crime (second-degree assault) committed for the benefit of a gang.  Kihega appeals, requesting that this court overturn his convictions in the interest of justice.  He also challenges the enhancement of his sentence. 

            While Kihega requests that this court overturn his convictions in the interest of justice, his argument is essentially an attack on the sufficiency of the evidence.  Because there is sufficient evidence to sustain the jury’s verdict, we affirm.  Because the district court erred in enhancing Kihega’s sentence, we modify that sentence to the presumptive sentence of 122 months.

D E C I S I O N

            1.         Sufficiency of the Evidence

            Where a claim of insufficiency of the evidence is made, the reviewing court’s function is limited to

ascertaining whether, given the facts in the record and the legitimate inferences that can be drawn from those facts, a jury could reasonably conclude that the defendant was guilty of the offense charged.

 

State v. Johnson, 568 N.W.2d 426, 435 (Minn. 1997) (citation omitted).  The evidence must be viewed in a light most favorable to the conviction, and the reviewing court must assume that the jury believed the state’s witnesses and disbelieved any contradictory evidence.  Id.

            On occasion, Minnesota courts have reversed convictions in the interest of justice.  See, e.g., State v. Langteau, 268 N.W.2d 76, 77 (Minn. 1978) (remanding for new trial in interest of justice due to lack of evidence and apparent jury confusion); State v. Kallestad, 296 Minn. 483, 484, 206 N.W.2d 557, 557 (1973) (remanding for new trial because of grave doubts as to defendant’s guilt following bench trial); State v. Boyce, 284 Minn. 242, 261, 170 N.W.2d 104, 116 (1969) (ordering new trial, citing doubts as to impartiality of trial court); State v. Johnson, 277 Minn. 368, 375-76, 152 N.W.2d 529, 533 (1967) (remanding for new trial based on grave doubts regarding culpability of defendant acting in self-defense).        In each of these cases, the supreme court expressed grave misgivings about either the lack of evidence to support the conviction or the possibility that a miscarriage of justice had occurred during the trial.  See Kallestad, 296 Minn. at 484, 152 N.W.2d at 529 (stating that “where we entertain grave doubts as to defendant’s guilt, it is our duty to grant a new trial”) (citation omitted)).   

            Here, sufficient evidence sustains the jury’s verdict.  Although some of the evidence against Kihega is circumstantial, a conviction may be based on circumstantial evidence, so long as “the reasonable inferences from such evidence are consistent only with the defendant’s guilt and inconsistent with any rational hypothesis except that of guilt.”  State v. Ostrem, 535 N.W.2d 916, 923 (Minn. 1995).  “Inconsistencies in the state’s case or possibilities of innocence” alone do not support reversal.  Id.  To successfully challenge a verdict based on circumstantial evidence, “a convicted person must point to evidence in the record that is consistent with a rational theory other than guilt.”  Id. (citations omitted).

            When viewed in a light most favorable to the conviction, the evidence here showed that Kihega was at the crime scene, possessed an assault rifle and duffel bag, and was standing in the area from which rifle shots originated.  One witness testified that he saw Kihega arrive on a bicycle with a green duffel bag and that he saw casings flying in the area where Kihega stood, leading the witness to assume that Kihega was firing shots from a rifle.  Another witness, who was also an accomplice, testified that he saw Kihega fire a rifle. 

            Kihega argues that because this witness was an accomplice, his testimony lacks credibility.  See State v. Bergeron, 452 N.W.2d 918, 924 (Minn. 1990) (“The testimony of an accomplice is inherently untrustworthy and must be supported by independent evidence.”)  Moreover, the evidence further established that the victim’s injuries were caused by rifle shots, while all witnesses agreed that the accomplice only had a handgun.  However, the accomplice was thoroughly cross-examined and questioned about his veracity and bias. 

            It is the jury’s province to judge the credibility of witnesses.  State v. Doppler, 590 N.W.2d 627, 635 (Minn. 1999).  Assuming that the jury believed the state’s witnesses, there is sufficient evidence to provide a basis for their verdict by proof beyond a reasonable doubt.

            2.         Sentence

            Kihega argues, and the state concedes, that the presumptive sentence for a conviction of first-degree assault, with a criminal history of three, is 122 months.  The district court sentenced Kihega to 134 months, which represents the 122-month presumptive sentence with a 12-month enhancement, citing the conviction of crime (second-degree assault) committed for the benefit of a gang.  Minn. Sent. Guidelines II.G. (sentence for crime committed for benefit of gang is presumptive sentence of underlying crime with highest severity level, plus additional 12 months).  Because Kihega was sentenced for first-degree assault, not for second-degree assault for the benefit of a gang, the district court erred in enhancing his sentence.  We therefore modify Kihega’s sentence to the presumptive sentence of 122 months.

            Affirmed as modified.