This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).






In the Matter of the Welfare of: J. J. M.


Filed April 8, 2003


Gordon W. Shumaker, Judge


Ramsey County District Court

File No. JX01552521



Frederick J. Goetz, Goetz & Eckland, P.A., 2124 Dupont Avenue South, Minneapolis, MN 55405 (for appellant J.J.M.)


Mike Hatch, Attorney General, Suite 1400, NCL Tower, 445 Minnesota Street, St. Paul, MN 55101, and


Susan Gaertner, Ramsey County Attorney, Darrell C. Hill, Assistant Ramsey County Attorney, 50 West Kellogg Blvd., Suite 315, St. Paul, MN 55102-1657 (for respondent State of Minnesota)



            Considered and decided by Randall, Presiding Judge, Shumaker, Judge, and Wright, Judge.                           


U N P U B L I S H E D   O P I N I O N



Appellant challenges his adjudication of delinquency for aiding and abetting third-degree assault under Minn. Stat. § 609.05, arguing that the evidence is insufficient and that he was denied his right of confrontation.  Because the evidence is sufficient to support his adjudication of delinquency and the district court did not abuse its discretion on the Confrontation Clause issue, we affirm.



            On April 23, 2002, appellant J.J.M. was playing basketball with T.N. and B.C. at the Minnehaha Recreation Center in St. Paul.  T.N. testified that some time shortly before 7:30 p.m., B.C.’s younger cousin, J.C., came and told the boys “[s]ome man was messing with his older brother.”  With J.J.M. leading, a group of eight to ten boys left to find the man identified later as M.H.  T.N. testified that while they were running to find M.H., J.J.M. said he was “about to beat dude’s ass.”

At the corner of Dale and Van Buren, the group of boys approached M.H. from behind.  When the group reached him, M.H. turned around to face J.J.M., who was closest to him, and T.N. testified that J.J.M. said, “You know you are about to get your ass whipped, right?”  Then J.J.M. “socked” M.H. in the face.  After this blow to the face, M.H. stumbled toward T.N.  T.N. then “socked” M.H. in the face, causing him to fall to the ground.  The group then ran back to the recreation center.

            The record includes testimony from various witnesses that the group “frantically” crossed Dale Street going after M.H., that the group caught up with M.H., that M.H. ended up on the ground with blood around his head, and that the kids then went running back in the direction of the recreation center.

As a defense witness, J.C. admitted he told the group about M.H. and that M.H. had not threatened him.  J.C. testified that J.J.M. was the first one to leave the playground and get to M.H. and that he heard J.J.M. then say, “Why were you messing with my friend’s cousin?”  J.C. testified that next M.H. turned toward J.J.M. and that J.J.M. swung, hitting M.H, who stumbled and fell.  J.J.M. did not dispute any of the testimony and admitted that both he and T.N. hit M.H.

          The parties stipulated to the medical evidence that M.H. was hospitalized for 16 days, suffered a traumatic brain injury, and that M.H.’s brain injury was as a result of being struck in the head or hitting his head when he fell.  The parties also stipulated that M.H. suffered substantial bodily harm.

            After a bench trial, the district court found J.J.M. guilty of aiding and abetting third-degree assault in violation of Minn. Stat. §§ 609.05, .223, subd. 1 (2000).  This appeal follows.



 Sufficiency of the evidence


            J.J.M. argues the district court erred because the evidence was not sufficient to establish that he was guilty of third-degree assault in that it was not shown that J.J.M. caused substantial injury to the victim or that J.J.M. aided and abetted another who caused substantial injury to the victim. 

When reviewing the sufficiency of the evidence, we examine the record in the light most favorable to the findings and determine whether the fact-finder, acting with due regard for the principles of presumed innocence and proof beyond a reasonable doubt, could have reasonably found as it did.  Dale v. State, 535 N.W.2d 619, 623 (Minn. 1995). See In re Welfare of L.B., 404 N.W.2d 341, 345 (Minn. App. 1987) (applying same standard to juvenile cases).  “It is well established that a conviction can rest upon the testimony of a single credible witness.”  State v. Bliss, 457 N.W.2d 385, 390 (Minn. 1990) (citations omitted).  We leave credibility determinations to the fact-finders because they are “in a superior position to assess the credibility of witnesses.”  In re Welfare of L.A.F., 554 N.W.2d 393, 396 (Minn. 1996) (citations omitted).  Thus, we assume the fact-finder believed the state’s witnesses and disbelieved all evidence to the contrary.  State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).

J.J.M. was adjudged delinquent for aiding and abetting assault in the third-degree in violation of Minn. Stat. §§ 609.223, subd. 1, .05, subd. 1 (2000).  A person commits third-degree assault under Minn. Stat. § 609.223, subd. 1, if he assaults another and inflicts substantial bodily harm.  Under Minn. Stat. § 609.05, subd. 1, a person is criminally liable for a crime committed by another if the person intentionally aids, advises, hires, counsels, or conspires with or otherwise procures the other to commit the crime.  Adjudication for aiding and abetting requires only “some knowing role in the commission of the crime by a defendant who takes no steps to thwart its completion.”  State v. Merrill, 428 N.W.2d 361, 367 (Minn. 1988) (quotation omitted).  A person may be held criminally liable for aiding and abetting without actively participating in an overt act constituting the primary offense.  In re the Welfare of M.D.S., 345 N.W.2d 723, 733 (Minn. 1984).   Presence, companionship, and conduct before and after the offense are circumstances from which one’s participation in the criminal intent may be inferred.  State v. Russell, 503 N.W.2d 110, 114 (Minn. 1993); State v. Parker, 282 Minn. 343, 355, 164 N.W.2d 633, 641 (1969).

There is sufficient evidence in the record to sustain J.J.M.’s adjudication.  It is undisputed that J.J.M. was one of the persons who assaulted M.H. and that M.H. suffered substantial bodily harm as a result of the encounter.  Stipulated facts and testimony in the record, including J.J.M.’s own testimony, show that J.J.M. was a leader of a group of at least eight other boys that went in search of M.H.  J.J.M. began the physical encounter when he punched M.H.  T.N. quickly followed with an additional punch.  The encounter ended quickly, and the boys fled together.  The evidence supports an inference that J.J.M.’s first punch prepared M.H. for T.N.’s strike and that together the punches resulted in M.H.’s fall.  It is not reasonable to infer that J.J.M. and T.N. acted independently and in isolation of each other.  Their presence together, the quick succession of punches by each, and their group flight show sufficient aiding and abetting to satisfy the statute.

There is no evidence in the record that J.J.M. attempted to leave the scene or stop the events from occurring, nor does the record show any possibility of another cause of M.H.’s injury.  J.J.M.’s actions cannot reasonably be characterized as being “mere presence” because he was actively involved in the events leading up to the cause of the injury, in the actual infliction of injury, and in the events immediately following the injury.  Thus, J.J.M. played a knowing role in the commission of the crime and took no steps to thwart its completion.

The district court found that

[t]here is no question that [J.J.M.] struck this individual.  He assaulted this individual, and actually he was the first one that hit him.  There is absolutely no question either regarding the fact that he was acting in concert with others in doing this,


particularly with T.N., and “based upon the assault that was perpetrated upon the victim, he sustained substantial bodily harm.”

Examining the record in the light most favorable to the findings and given the requirements necessary to convict under Minn. Stat. § 609.05, the district court's findings have substantial evidentiary support and are sufficient to establish beyond a reasonable doubt that J.J.M. aided and abetted others in third-degree assault, and as such, the evidence supports the adjudication of delinquency.


Right of confrontation


            J.J.M. argues that the court improperly denied him the opportunity to cross-examine a prosecution witness about statements that the witness allegedly made that showed prejudice against African Americans.

The right of an accused to confront witnesses against him is guaranteed by both the United States Constitution and the Minnesota Constitution.  U.S. Const. amends. VI, XIV; Minn. Const. art. I, § 6.  District courts have broad discretion to control the scope of cross-examination.  Davis v. Alaska, 415 U.S. 308, 316, 94 S. Ct. 1105, 1110 (1974).  But a defendant’s Sixth Amendment right to confront the witnesses against him limits the discretionary authority of a district court judge to restrict the scope of cross-examination.  State v. Lanz-Terry, 535 N.W.2d 635, 640 (Minn. 1995). 

A district court judge violates a criminal defendant’s right to confrontation when the court prohibits the defendant from engaging in a cross-examination designed to show a “prototypical form of bias on the part of a witness.”  State v. Pride, 528 N.W.2d 862, 866 (Minn. 1995) (citation omitted).  But proper foundation must be provided before evidence may be admitted.  State v. Vance, 254 N.W.2d 353, 358 (Minn. 1977).  When the offer of proof fails to indicate that the proffered evidence can withstand a threshold inquiry as to reliability, the district court has discretion to reject the evidence.  State v. Kobow, 466 N.W.2d 747, 750 (Minn. App. 1991), review denied (Minn. Apr. 18, 1991).

Minn. R. Evid. 616 permits inquiry into a witness’s bias or prejudice.  Mark Halverson was called by the prosecution to testify.  He testified that he was driving by the scene of the encounter and saw M.H. being punched and kicked and then saw a group of young men run away while pointing at M.H. and laughing.

On cross-examination, defense counsel asked Halverson if he talked to a defense investigator after the incident.  When Halverson stated that he did not think he did but if he had any conversation it would have been “[f]or about a whole five seconds.”  This examination followed:

Q.        Okay, and you didn’t refer to the people that you saw that day as African Americans at that time, did you?


A.        I probably didn’t talk to him too much to even — he didn’t even ask me about anything if I remember.


Q.        You didn’t talk to him about what you saw?


A.        I didn’t talk to him at all about who I saw.


Q.        You didn’t talk to him about what you saw?


A.        No, I didn’t, not that I recall.


Q.        Make any statements about fucking niggers?


A.        No, I did not.


After that answer, the prosecutor objected without stating a ground, and the court sustained the objection without giving a ground for the ruling. Defense counsel responded that some witness, who might have been Halverson, made that statement.

Although the court committed evidentiary error by sustaining the objection, it did not preclude cross-examination as to the statement showing prejudice.  Defense counsel asked about it, and Halverson denied making it.  The objection was directed to that particular statement, and nothing in the court’s ruling precluded defense counsel from continuing to ask other questions about Halverson’s alleged prejudice.  If defense counsel believed that additional cross-examination about that statement would have produced a different answer, counsel was required to preserve error through an offer of proof.  Minn. R. Evid. 103.  Furthermore, there is nothing in the record to suggest that the court precluded defense counsel from calling the investigator who allegedly heard the statement to testify in contradiction to Halverson.  The court did not deny J.J.M.’s right to confront witnesses against him.