This opinion will be unpublished and

may not be cited except as provided by

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






State of Minnesota,


Edward Vallejo,


Filed June 24, 2003


Minge, Judge


Nobles County District Court

File No. K401134


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


Gordon Moore, Nobles County Attorney, Prairie Justice Center, 1530 Airport Road, Worthington, MN 56187 (for respondent)


John M. Stuart, State Public Defender, Lawrence W. Pry, Assistant Public Defender, 2221 University Avenue S.E., Suite 425, Minneapolis, MN 55414 (for appellant)


            Considered and decided by Harten, Presiding Judge, Stoneburner, Judge, and Minge, Judge.

U N P U B L I S H E D   O P I N I O N


MINGE, Judge


            Appellant challenges his conviction of aiding and abetting a drive-by shooting on the grounds of insufficient evidence and ineffective legal counsel.  Because the evidence was sufficient for the jury to conclude that appellant had an active role in the shooting and took no steps to prevent the crime and because there is no showing of ineffective legal counsel, we affirm.





            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 a light most favorable to the conviction, was sufficient to allow the jury to reach the verdict it did.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  This 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) (citation omitted). 

            We will only examine the credibility of the witnesses if (1) the evidence supporting the conviction was of dubious credibility; see State v. Langteau, 268 N.W.2d 76, 77 (Minn. 1978) (remanding for new trial because witness testimony was inconsistent with the crime); or (2) we are required to do so in the interests of justice.  State v. Johnson, 277 Minn. 368, 375, 152 N.W.2d 529, 533 (1967).  The credibility of individual witnesses and the weight to be given each witness’s testimony are issues for the jury to decide.  State v. Bliss,457 N.W.2d 385, 390 (Minn. 1990); Dale v. State, 535 N.W.2d 619, 625 (Minn. 1995); State v Pieschke, 295 N.W.2d 580, 584 (Minn. 1980).  Thus, we 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 have concluded that the defendant was guilty of the charged offense.  State v. Alton,432 N.W.2d 754, 756 (Minn. 1988). 

            Here, appellant was found guilty of riot, aiding and abetting assault in the second and third degree and aiding and abetting a drive-by shooting.  Appellant claims he was an innocent bystander and that the evidence fails to prove beyond a reasonable doubt that he was guilty of an active, intentional act sufficient to convict him of aiding and abetting assault and a drive-by shooting.  Thus, we only address aiding and abetting assault and a drive-by shooting here. 

              To find appellant guilty of the crime of aiding and abetting, the district court must find that “the person intentionally aids, advises, hires, counsels, or conspires with or otherwise procures the other to commit the crime.”  Minn. Stat. § 609.05, subd. 1 (2000).  The state must show “some knowing role in the commission of the crime by a defendant who takes no steps to thwart its completion.”  State v. Ostrem, 535 N.W.2d 916, 924 (Minn. 1995) (quoting State v. Merrill, 428 N.W.2d 361, 367 (Minn. 1988)). 

[I]t is proper for the jury to consider a defendant’s passive conduct in connection with other circumstances in determining whether the defendant by his presence intended to aid and thereby did aid the others in committing the offense.


State v. Hayes, 431 N.W.2d 533, 535 (Minn. 1988) (citation omitted).  “[M]ere inaction or acquiescence is not enough to support a conviction.”  Id. (citing State v. Ulvinen, 313 N.W.2d 425, 428 (Minn. 1981)).  If the “person is present at the commission of a crime without disapproving or opposing it,” that conduct along with other circumstances may be an adequate basis for the jury to “reach the conclusion that he assented to the commission of the crime, lent to it his approval, and was thereby aiding and abetting its commission.”  State v. Parker, 282 Minn. 343, 355-56, 164 N.W.2d 633, 641 (Minn. 1969).

            Appellant relies on State v. Russell and contends that the state has the burden to prove that he encouraged the other participants to “take a course of action which [they] might not otherwise have taken.”  State v. Russell, 503 N.W.2d 110, 114 (Minn. 1993).  Appellant contends that his presence alone does not prove that he aided or abetted others in the commission of the crime.  But in Parker, the court stated that “once a reasonable inference arises * * * from all the circumstances that defendant was a participant * * * [in] the crime * * *, defendant’s guilt is sufficiently established.”  Parker, 282 Minn. at 356, 164 N.W.2d at 641.  In addition, the court in Russell held that “presence, companionship, and conduct before and after an offense are circumstances from which a person’s criminal intent may be inferred.”  Russell, 503 N.W.2d at 114 (citing State v. Ulvinen, 313 N.W.2d 425, 428 (Minn. 1981)). 

Here, the record contains the following evidence indicating appellant assented to the commission of the shooting, took a knowing role in its completion, and made no attempt to thwart the other’s actions:  (1) appellant was present during the original altercation between one of the shooters and one of the victims and appellant told the victim, “we’re going to get you, we’re going to hit your house;” (2) appellant spoke with another participant on the phone prior to the shooting and that participant told appellant he was coming to Worthington because they were going to “take care of some fools;” (3) appellant was present with three other participants, including one of the shooters, prior to the crime and appellant admits seeing an automatic pistol; (4) appellant discussed the precipitating altercation with three of the participants prior to the shooting; (5) appellant acknowledged that he knew the shooter had either a long object such as a bat or he had a gun when they all left the shooter’s mobile home, and appellant knew that the object was a gun by the time he got into the car with the other participants; (6) appellant acknowledged he was present at the victim’s mobile home at the time of the shooting; (7) appellant was identified by one of the victims as one of the people in the doorway to the mobile home immediately prior to the shooting; and (8) appellant left the victim’s mobile home with the others immediately after the shooting.  In addition, there is no evidence that appellant took any steps to thwart the crime or to prevent its completion.  When considering all the evidence in the light most favorable to the conviction, there is sufficient evidence for the jurors to have concluded beyond a reasonable doubt that appellant aided and abetted in the shooting and was not merely a passive spectator.


In a handwritten pro se brief, appellant also asserts that he was denied effective assistance of counsel.  Appellant states that his attorney failed to place two of the participants in the shooting on the stand to testify that appellant had no knowledge prior to the shooting that the crime was going to occur and that his attorney did not address the timing of the reading of his Miranda rights.

            In order to succeed in a claim for ineffective assistance of counsel, appellant must


affirmatively prove that his counsel’s representation ‘fell below an objective standard of reasonableness’ and ‘that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.  * * *  A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ 


Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (quoting Strickland v. Washington, 466 U.S. 668, 688, 104 S. Ct. 2052, 2064, 2068 (1984)).  There is a presumption that an attorney’s representation falls within the range of “reasonable professional assistance.”   State v. Ives, 568 N.W.2d 710, 714 (Minn. 1997) (quotation omitted).  To be ineffective, “it must be so inadequate as to amount to a sham.”  Id. 714 (citing State v. Fields, 279 Minn. 374, 377, 157 N.W.2d 61, 63 (1968)), aff’d by 655 N.W.2d 633 (Minn. Jan. 23, 2003). 

            Trial tactics, including which witnesses to call and what information to present to the jury, are within the discretion of appellant’s counsel.  State v. Jones, 392 N.W.2d 224, 236 (Minn. 1986) (citing Strickland, 466 U.S. at 693, 104 S. Ct. at 2067).  Trial tactics are not reviewed by this court.  Id.  Appellant contends that two witnesses could have testified about appellant’s lack of knowledge in connection with the shooting.  Whether or not they could have testified is clearly a trial tactic left to the discretion of the appellant’s attorney.  Furthermore, one of the witnesses did testify at appellant’s trial, admitting that he could not remember the events of the day of the shooting because of his alcohol use.  The other potential witness was actively involved in the crime.  In addition, there is no evidence that appellant was prejudiced by the lack of testimony.  Jones, 392 N.W.2d at 236-37.  Without evidence that the results of the proceeding would have changed with the testimony of these witnesses, there can be no violation of appellant’s right to effective assistance of counsel based on  which witnesses were called.  Id.

            Appellant also contends that his attorney should have addressed the timing of the reading of his Miranda rights.  But, appellant does not present any evidence that he was prejudiced by the timing.  Again, without evidence of prejudice, there can be no violation of appellant’s right to effective assistance of counsel.

            On this record, appellant failed to meet these thresholds for establishing ineffective legal representation and we find his claim of ineffective assistance of counsel to be without merit.