This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
Kerry Dean Stevenson,
Hennepin County District Court
File No. 0089105
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103-2106; and
Amy Klobuchar, Hennepin County Attorney, Donna J. Wolfson, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)
John M. Stuart, State Public Defender, Marie Wolf, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)
Considered and decided by Peterson, Presiding Judge, Randall, Judge, and Willis, Judge.
U N P U B L I S H E D O P I N I O N
In this appeal from a conviction of gross-misdemeanor indecent exposure, appellant Kerry Dean Stevenson argues that the eyewitness identification is insufficient to support the conviction because it is unreliable and uncorroborated. We affirm.
At about 7:00 a.m. on October 23, 2001, J.V. and S.B., both age 16, were walking to their school-bus stop in Minneapolis when they saw a man walking ahead of them. The man turned and began walking toward them. When he was approximately five feet in front of them, the man said, “look at this.” The girls saw that he had his penis in his hand. They ran to their bus stop.
Later that day, the girls described the man to police officers as a clean-shaven, white male in his 40’s, with a round face, and wearing a suit. Based on the girls’ description and the modus operandi of the crime, Minneapolis Police Lieutenant Michael Fossum suspected appellant, a registered level-three sex offender who lived in the neighborhood.
Three days after the incident, Fossum presented the girls with a photo lineup consisting of six photos, including a photo of appellant that showed him with a mustache and a faint goatee. There were no available photos of appellant as a clean-shaven man. All of the line-up photos were of men with facial hair. J.V. could not identify anyone in the photo lineup as the perpetrator. S.B., however, thought that appellant’s photo looked familiar, and she said, “yes, I’d say if you cut off the hair and took off the facial hair that could possibly be the guy that did it.” Based on S.B.’s identification, Fossum arrested appellant, and he was charged with gross-misdemeanor indecent exposure in violation of Minn. Stat. § 617.23, subd. 2(2) (2000).
S.B. and J.V. testified at trial. S.B. identified appellant in the courtroom, but J.V. could not.
To corroborate the identification evidence, the state introduced Spreigl evidence of four incidents in which appellant was convicted for exposing himself or masturbating in front of children. The district court found appellant guilty of gross-misdemeanor indecent exposure.
When reviewing the sufficiency of the evidence, an appellate court applies the same standard of review to cases heard before a court without a jury as is applied to cases heard by a jury. State v. Mytych, 292 Minn. 248, 251-252, 194 N.W.2d 276, 279 (1972). Accordingly, an appellate court will uphold the district court’s determination of guilt if, based on the evidence contained in the record, the district court could reasonably have found the defendant guilty of the crime charged. State v. Cox, 278 N.W.2d 62, 65 (Minn. 1979). We must view the evidence in a manner most favorable to the conviction and assume that the district court disbelieved any contradictory testimony. Id.
“[I]dentification by a single eyewitness is sufficient to sustain a conviction.” State v. Williams, 307 Minn. 191, 198, 239 N.W.2d 222, 226 (1976).
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) (citation omitted). But where a single eyewitness’s identification of a defendant is made after only fleeting or limited observation, corroboration is required to sustain the conviction. State v. Walker, 310 N.W.2d 89, 90 (Minn. 1981).
Appellant argues that S.B.’s identification is unreliable and, therefore, insufficient to support his conviction, because she had a limited opportunity to view the perpetrator, and she identified a man with a goatee and a mustache as the man whom she had described as clean-shaven.
The factors involved in evaluating an identification
include the opportunity of the witness to see the defendant at the time the crime was committed, the length of time the person committing the crime was in the witness’ view, the stress the witness was under at the time, the lapse of time between the crime and the identification, and the effect of the procedures followed by the police as either testing the identification or simply reinforcing the witness’ initial determination that the defendant is the one who committed the crime.
State v. Burch, 284 Minn. 300, 315-16, 170 N.W.2d 543, 553-54 (1969).
Appellant argues that S.B.’s testimony that she observed the perpetrator for 45 seconds to one minute could not be true and that she could have glimpsed him for only a few seconds. At trial, S.B. was cross-examined by defense counsel as follows:
Q. Now, at the time you saw him about five feet from you, as you described, to the time you guys turned around and ran, how much time did you have to take a look at that person.
A. Maybe, like, a minute.
Q. A minute?
A. Maybe less than that.
Q. Well, how much less?
A. I don’t know. 20 seconds less. I don’t know.
Q. You stood there for 40 seconds, you think?
A. I mean it’s only on a city block, so there isn’t that much space, so for us to walk up to him and get to him and then, like, we kind of stopped and looked back and then we – so, it was probably close to a minute or maybe less, like, 45 seconds or something.
Q. And you indicated he was about five feet away from you?
Q. And you didn’t know who this person was?
Q. And it was dark out?
A. Uh-huh. Yeah.
Q. Okay. So, the person walked up to you and is about five feet away from you. You stood there about 45 seconds?
Appellant contends that S.B.’s testimony means that she stood and looked at the man for 45 seconds. But her testimony is ambiguous. When asked if she stood there for 45 seconds, S.B. answered, “Yeah.” But she also said that the time it took to walk up to the man, look at him, and then look back at him was 45 seconds. Although she testified that it was dark out, her testimony indicates that she could see the man as she approached him and not just while she stopped within five feet of him. Defense counsel began to follow up on this ambiguity but abandoned the attempt before S.B. clarified what she meant.
Appellant argues that S.B.’s identification of him is further weakened because she identified a man with a mustache and a goatee as the suspect she had previously described as clean-shaven. But S.B. did not identify a man with a mustache and a goatee as the suspect she had previously described as clean-shaven. She qualified the identification by saying that if you cut the hair of the man in the photo and took off the facial hair, it could be the man she saw. In other words, S.B. identified a man without a mustache and a goatee.
Appellant also contends that he could not have been the man described as clean-shaven because when he was arrested three days after the incident, he had a full beard and even longer hair than in the line-up photo. But there is no evidence in the record that supports appellant’s description of his appearance when he was arrested.
Considering all of the factors involved in evaluating an identification, we conclude that the district court could reasonably have found that S.B.’s identification of appellant is sufficient to find appellant guilty of indecent exposure. S.B.’s testimony supports a determination that she saw a man in the distance walking toward her, and she walked to within five feet of the man where she stopped and looked at him briefly before running away. S.B. did not state that she was under any stress during the incident. She described the man later that day, and three days later, she identified a man who fit the description she gave. S.B. also identified appellant at trial.
2. Appellant does not challenge the admission of the Spreigl evidence. Instead, he argues that although the Spreigl evidence shows that he has a history of illegal sexual behavior, it does not corroborate S.B.’s identification because the incidents that lead to his prior convictions were incidents of pedophilia, while the incident on October 23 was exhibitionism. Appellant contends that exhibitionism and pedophilia are two different disorders, and the fact that he has prior convictions based on pedophilic behavior is not probative on the issue of whether he exhibited his genitals to teenaged girls.
But appellant did not present this argument to the district court, and his argument on appeal relies on evidence that was not presented to the district court. This court generally will not consider matters not raised before the district court. Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996). The record on appeal consists of “the papers filed in the [district] court, the offered exhibits, and the transcript of the proceedings.” Minn. R. Crim. P. 28.02, subd. 8. Because this argument and the evidence to support it were not presented to the district court, we will not consider it on appeal.