This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-29

 

 

State of Minnesota,

Respondent,

 

vs.

 

Mai Yang,

Appellant.

 

 

Filed February 17, 2004

Affirmed in part, reversed in part, and remanded

Halbrooks, Judge

 

 

Hennepin County District Court

File No. 02026218

 

 

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101; and

 

Amy Klobuchar, Hennepin County Attorney, Donna J. Wolfson, Assistant County Attorney, C-2000 Government Center, 300 South 6th Street, Minneapolis, MN 55487  (for respondent)

 

Bradford Colbert, 875 Summit Avenue, Room 254, St. Paul, MN 55105 (for appellant)

 

 

 

            Considered and decided by Stoneburner, Presiding Judge, Kalitowski, Judge, and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N

HALBROOKS, Judge

Appellant Mai Yang challenges his conviction and sentence of first-degree assault for the benefit of a gang and drive-by shooting for the benefit of a gang, arguing that (1) the evidence was insufficient to support the conviction; (2) the district court erred in admitting certain evidence; and (3) the district court erred in sentencing.  We conclude that there was sufficient admissible evidence to support appellant’s conviction and that although the district court erred by admitting certain evidence, any error caused by the erroneous admission was harmless.  But because we also conclude that the district court erred in sentencing appellant, we reverse on that issue and remand for resentencing.

FACTS

By amended complaint filed September 27, 2002, appellant was charged with one count of first-degree assault committed for the benefit of a gang, Minn. Stat. §§ 609.229, subds. 2, 3(a), .221, subd. 1, .11, .05 (2000); one count of first-degree assault, Minn. Stat. §§ 609.221, subd. 1, .101, subd. 2, .05, .11 (2000); two counts of drive-by shooting committed for the benefit of a gang, Minn. Stat. §§ 609.229, subds. 2, 3(a), .66, subd. 1e(b), .05, .11 (2000); and two counts of drive-by shooting, Minn. Stat. §§ 609.66, subd. 1e(b), .11, .05 (2000).

            The complaint alleged the following facts:  On the evening of December 31, 2001, appellant, a member of the Imperial Gangsters gang, participated in two separate drive-by shootings that targeted, in chronological order, homes in Minneapolis and Brooklyn Center.  The targeted homes, which were both occupied at the time of the shootings, were known residences of members of the Purple Brothers, a rival gang.  A twelve-year-old girl present in a front room of the Brooklyn Center home was struck in the face by a bullet and permanently disfigured. 

            At trial, Cuajcaj Yang (Yang) and James Her, both members of the Imperial Gangsters, testified as accomplice witnesses.  Yang testified that on the evening of December 31, 2001, he and other Imperial Gangsters, including appellant, attended a party in Woodbury.  Yang testified that he and other Imperial Gangsters made two separate excursions that evening to shoot at homes belonging to members of the Purple Brothers.  On the first excursion, Yang drove three or four other Imperial Gangsters, armed with a .45 caliber gun and a rifle, to Aurora Avenue in St. Paul, where Her and another individual got out of the vehicle and fired both guns at a home.  Yang testified that he was not certain if appellant was present on this excursion, but stated that, if appellant was present, he was not armed. 

            Yang testified that when he returned to Woodbury from the first excursion, he saw appellant reloading the .45 caliber gun.  Yang stated that appellant then pressured him to participate in the second shooting excursion under penalty of retribution from the gang, this time targeting homes in Minneapolis and Brooklyn Center.  Yang testified that on the second excursion, appellant was in possession of a .45 caliber gun.  When they got to Minneapolis, appellant got out of the vehicle and fired six or seven shots from the .45 caliber gun at a home believed to be occupied by a Purple Brother.  Yang further stated that when they got to Brooklyn Center, appellant again got out of the vehicle and fired approximately ten shots from the same gun at a home believed to be occupied by a Purple Brother. 

            Her, an Imperial Gangster, testified that he had also attended the Woodbury party on December 31, 2001.  According to Her, it was he, and not Yang, who drove on the first excursion that evening.  Appellant did not accompany the group on the first excursion.  Her testified that, after he returned to the Woodbury party from the first excursion, he saw appellant reloading guns.  Her stated that he did not participate in the second excursion and that when appellant and the others returned from that excursion, they were excitedly discussing the shootings. 

            Benjamin Vang and Teng Vang testified to corroborate the accomplice testimony of Her and Yang.  Benjamin Vang testified that he was a friend of the Imperial Gangsters, has known appellant for one or two years, was aware of a rivalry between the Imperial Gangsters and the Purple Brothers, was present at the December 31, 2001 party in Woodbury, and overheard Imperial Gangsters discussing retribution against the Purple Brothers prior to the party. 

            Teng Vang testified that he and appellant are members of the Imperial Gangsters and that appellant was present at the Woodbury party.  According to Teng Vang, appellant participated in two separate excursions from the party in the course of the evening, and appellant and others left the party at one point armed with a .45 caliber gun and shotguns.  Before one excursion, Teng Vang heard the individuals who were leaving say that they were going to perform some drive-by shootings. 

            On January 9, 2002, police seeking evidence related to the December 31, 2001 drive-by shooting in St. Paul executed a search warrant at the Woodbury home where the December 31 party was held.  The police discovered various items belonging to appellant in the garage, including (1) an organizer containing a .9 mm. handgun and two loaded magazines for use in the gun (one of which had appellant’s fingerprint on it) and (2) a backpack containing personal papers belonging to appellant, bullets for an SKS assault rifle, and a CD cover decorated with hand-drawn Imperial Gangsters symbols. 

            Jonathan Hankes, a Ramsey County Sheriff’s Department deputy who works as a Hmong gang investigator with the Minnesota Gang Strike Force, testified that the Imperial Gangsters are a Hmong gang that engages in criminal activity for the benefit of the gang.  Hankes testified that the Imperial Gangsters have been known to commit attempted murder, aggravated and simple assault, drive-by shootings, firearms crimes, and robberies.  Her testified that he had committed crimes for the benefit of the Imperial Gangsters, including selling guns and drugs and using weapons to attack rival gangs such as the Purple Brothers. 

            Appellant testified at trial that while he had previously been involved with gangs, he was not a member of the Imperial Gangsters.  He stated that he had attended the December 31, 2001 party in Woodbury, but that when he overheard other people at the party discussing “an incident” (presumably involving the Purple Brothers), he advised them to “just sort of enjoy the party” instead of seeking revenge.  Appellant also testified that his fingerprint was on the .9 mm. gun magazine because someone at the party had handed him the gun in the course of trying to sell it to him.  Appellant denied buying the gun, but explained the gun’s presence with his belongings in the garage by stating that the person selling the gun had given it to him upon learning he had no money with which to buy it. 

            Following a trial, the jury found appellant guilty as charged.  The district court sentenced appellant to 98 months and one day, executed, for first-degree assault committed for the benefit of a gang for the Brooklyn Center shooting.  The court also sentenced appellant to 80 months, stayed for 15 years, for a drive-by shooting committed for the benefit of a gang for the Minneapolis shooting.  This appeal follows.

D E C I S I O N

I.

Appellant argues that the state failed to present sufficient evidence to (1) corroborate the testimony of his accomplices, (2) prove that he acted with the specific intent to benefit a gang, and (3) prove that the Imperial Gangsters is a criminal gang.

In reviewing the sufficiency of the evidence supporting a criminal conviction, this court 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 permit the jurors to reach the verdict which they did.”  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  The issue is “whether, given the facts in the record and any legitimate inferences that can be drawn from those facts, a jury could reasonably find that the defendant was guilty of the charged offense.”  State v. Wilson, 535 N.W.2d 597, 605 (Minn. 1995).  “This court will not retry the facts, but instead views the evidence in a light most favorable to the jury’s verdict and assumes that the jury believed the state’s witnesses and disbelieved any evidence to the contrary.”  Id.  It is the exclusive role of the jury to determine the weight and credibility of witness testimony.  State v. Folkers, 581 N.W.2d 321, 327 (Minn. 1998). 

            Minn. Stat. § 634.04 (2000) requires that accomplice testimony be corroborated.  “It is well-settled that in reviewing the sufficiency of the corroborating evidence of an accomplice’s testimony, we review the evidence just as we would on a sufficiency challenge – in the light most favorable to the prosecution, and with all conflicts in the evidence resolved in favor of the verdict.”  State v. Nelson, 632 N.W.2d 193, 202 (Minn. 2001).

The connection between the defendant and the crime must be established by corroborating evidence which affirms the truth of the accomplice’s testimony and points to the guilt of the defendant in some substantial degree; however, it is not required that the corroborating evidence be adequate to establish a prima facie case.

 

State v. Mathiasen, 267 Minn. 393, 398, 127 N.W.2d 534, 538 (1964). 

            Appellant first argues that the accomplice testimony of Her and Yang lacked credibility because both men testified pursuant to grants of immunity.  But he cites to no authority in support of this argument, which also disregards the principle that questions of witness credibility are the exclusive province of the jury.  Folkers, 581 N.W.2d at 327.  Appellant also contends that the testimony lacked credibility because the witnesses disagreed about who drove the car on the first shooting excursion.  This challenge also concerns a factual question to be resolved by the jury.  See id.

            Appellant also argues that the state did not sufficiently corroborate the accomplice testimony.  But the state corroborated Her and Yang’s testimony with testimony from Benjamin Vang, testimony from Teng Vang, the evidence recovered during the search of the home where the December 31, 2001 party was held, and appellant’s testimony at trial.  The state presented evidence that appellant was a member of the Imperial Gangsters, that he knew of the plan to attack the Purple Brothers prior to its execution, that he was present at the location where the shooting excursions originated, and that he was seen leaving that location with a gun similar to the one used in both charged shootings.  Although appellant contradicted the state’s evidence in his own testimony, the jury “evaluates the credibility of witnesses and need not credit a defendant’s exculpatory testimony.”  State v. Hough, 585 N.W.2d 393, 396 (Minn. 1998).

            “Corroborating evidence may be secured from the defendant’s association with those involved in the crime in such a way as to suggest joint participation, as well as from the defendant’s opportunity and motive to commit the crime and his proximity to the place where the crime was committed.”  State v. Adams, 295 N.W.2d 527, 533 (Minn. 1980).  Here, the district court instructed the jury that it would be an error of law to convict appellant solely on the basis of uncorroborated accomplice testimony.  Taking the evidence in the light most favorable to the verdict, as we must, we conclude that the state presented sufficient evidence to corroborate the accomplice testimony.

            Appellant next argues that the state presented insufficient evidence, with respect to the Brooklyn Center shooting, to prove that he committed first-degree assault with the specific intent to benefit a gang.  Appellant contends that because he did not know whether the home was occupied at the time of the attack, he lacked the requisite intent to commit an assault “with the intent to promote, further, or assist in criminal conduct by gang members.”  Minn. Stat. § 609.229, subd. 2 (2000).  We disagree.  With respect to assault, “[t]he crime is in the act done with intent to cause fear, not in whether the intended result is achieved.  Further, the assailant’s knowledge of the presence of a particular victim is not essential to sustain a conviction under the statute.”  Hough, 585 N.W.2d at 396.  In Hough, the court observed that intentional behavior such as “fir[ing] numerous shots from a semiautomatic weapon into a home . . . is not excused simply because [the shooter] claims he did not know others were present in the home or because others within the home were not immediately aware of the dangerous act.”  Id. at 397. 

            We conclude that the state presented sufficient evidence to convict appellant.

II.

            Appellant argues that the district court abused its discretion in several of its evidentiary rulings that permitted the state to introduce (1) testimony from the state’s gang expert that the Imperial Gangsters is a gang that appellant belongs to; (2) evidence connecting appellant to the .9 mm. gun found in the Woodbury home where the December 31, 2001 party was held; (3) photographs of appellant holding a gun and making gang signs; (4) evidence of other crimes allegedly committed by the Imperial Gangsters without showing that appellant participated in those crimes; and (5) evidence that witnesses who testify against gang members could suffer retaliation. 

            Absent a clear abuse of discretion, evidentiary rulings generally rest within the trial court’s discretion.  State v. Glaze, 452 N.W.2d 655, 660 (Minn. 1990).  A defendant who claims the trial court erred in admitting evidence bears the burden of showing the error and any resulting prejudice.  State v. Steinbuch, 514 N.W.2d 793, 799 (Minn. 1994). 

Appellant argues that the state failed to prove that the Imperial Gangsters are a criminal gang as defined by Minn. Stat. § 609.229, subd. 1 (2000):

[A]ny ongoing organization, association, or group of three or more persons, whether formal or informal, that:

 

(1) has, as one of its primary activities, the commission of one or more of the offenses listed in section 609.11, subdivision 9 [including assault];

 

(2) has a common name or common identifying sign or symbol; and

 

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

 

            Here, Deputy Hankes, a Hmong gang specialist with the Ramsey County Sheriff’s department, testified that the Imperial Gangsters are a criminal gang with a common name and identifying symbols.  Her, Yang, and Teng Vang testified that, as members of the Imperial Gangsters, they had committed crimes for the benefit of the gang.  Hankes also testified regarding the 10-point gang identification criteria established by the legislature and employed by the Minnesota Gang Strike Force.  We have held that gang-expert testimony is admissible to show whether a particular group of people is a criminal gang and whether an individual is a member of or associated with the group.  See State v. Carillo, 623 N.W.2d 922, 928 (Minn. App. 2001) (observing that a police officer “whose duties focus on criminal gangs and who has knowledge and experience concerning the activities of a particular gang . . . is able to offer a factual perspective . . . [on whether a] gang constitutes a criminal gang”), review denied (Minn. June 19, 2001); State v. Chuon, 596 N.W.2d 267, 270 (Minn. App. 1999) (holding that the introduction of evidence of prior criminal activity of gang members to demonstrate that the association is a criminal gang is not only probative, but is an essential element of the state’s case), review denied (Minn. Aug. 25, 1999).

            But the supreme court has recently held that gang expert testimony, particularly in “noncomplex” cases such as this, and particularly insofar as that testimony relies on the ten-point Minnesota Gang Strike Force gang-identification criteria, should not be admitted where the testimony is “duplicative of testimony given by witnesses with first-hand knowledge of the relevant events and which established that [the defendant] was a member of, and involved with, a group that operated as a criminal gang.”  State v. DeShay, 669 N.W.2d 878, 888 (Minn. 2003).  In DeShay, the court observed that where “the jury is in as good of a position to resolve an issue as the expert, then expert testimony would be of little assistance to the jury and should not be admitted.”  Id. at 885 (quotation omitted).  But noting that “first-hand knowledge testimony is how the state can and should go about proving the essential elements of this crime,” the court held the admission of gang-expert testimony harmless because there was no reasonable possibility the first-hand testimony substantially influenced the guilty verdict.  Id. at 886, 888.  Here, Benjamin Vang, Teng Vang, Her, and Yang gave first-hand testimony that the Imperial Gangsters is a criminal gang of which appellant is a member.  We therefore conclude that any error that may have occurred by admitting Hankes’s expert testimony was harmless because, in light of the other testimony, there is no reasonable possibility that Hankes’s testimony substantially influenced the guilty verdict. 

We reach the same conclusion with respect to appellant’s objections concerning evidence connecting him to the .9 mm. gun, the photographs of him holding a gun and making gang signs, and evidence of other crimes allegedly committed by the Imperial Gangsters.  The state was required to prove that appellant committed the charged offense for the benefit of a criminal gang.  As the DeShay decision stated, first-hand testimony is the preferred method to establish the elements of this offense.  Id. at 886.  Here, the state presented first-hand evidence of appellant’s connection to a criminal gang in the form of testimony from Benjamin Vang, Teng Vang, Her, and Yang.  We agree that evidence concerning the gun, the photographs, and other gang crimes could be prejudicial to appellant.  But the potential prejudice of the objected-to gang evidence here is outweighed by its probative value in light of the state’s obligation to prove every element of the charged crime.  We also observe that any error that may have resulted from the admission of this evidence was harmless in light of the first-hand testimony that appellant was a member of a criminal gang. 

Appellant next argues that the district court erred by allowing Her and Yang to testify that gang members who testify against other gang members could face retaliation.  We disagree.  In order “[t]o bolster the witness’ credibility, the prosecution may . . . introduce evidence that the decision to testify has resulted in negative consequences to the witness.”  State v. Harris, 521 N.W.2d 348, 352 (Minn. 1994).  “This evidence, while probative and therefore relevant, may also be highly prejudicial in that the jury may infer the defendant is connected to the negative consequences . . . .”  Id.  Here, the record demonstrates that defense counsel attempted to show that Her and Yang were not credible because their testimony was obtained through grants of immunity or plea bargains.  The state was thus justified in attempting to bolster the men’s credibility by showing that their decision to testify created possible risks as well as rewards. 

III.

            Appellant argues that the district court erred in sentencing him to consecutive sentences by (1) failing to sentence him in the order in which the offenses occurred and (2) considering his criminal history score when imposing a consecutive sentence. 

            The district court sentenced appellant to 98 months, executed, for first-degree assault for the benefit of a gang (the Brooklyn Center shooting).  The court then imposed a consecutive 80-month sentence for drive-by shooting for the benefit of a gang (the Minneapolis shooting) and stayed execution of the sentence for 15 years.  In calculating each sentence, the court considered the severity level of the offense and appellant’s criminal history score as set forth in the Minnesota Sentencing Guidelines. 

            The state agrees with appellant that the district court erred by sentencing him first for the Brooklyn Center shooting, which occurred after the Minneapolis shooting.  See Minn. Sent. Guidelines II.F (stating that “[w]hen consecutive sentences are imposed, offenses are sentenced in the order in which they occurred”).  The state also agrees that the district court erred by using appellant’s criminal-history score to calculate the consecutive sentence for the second offense.  See id. (providing that wherever a permissive consecutive sentence is imposed, the sentencing court must use a criminal-history score of zero or the mandatory minimum for the offense).  The record demonstrates that the matter must be remanded for resentencing.  

            Appellant argues that on remand, the proper remedy for the district court’s sentencing errors is to reverse the order of the sentences and impose an executed 60-month sentence (the presumptive sentence) for the Minneapolis shooting and a stayed 98-month sentence for the Brooklyn Center shooting.  The state observes that pursuant to Minn. Stat. § 609.229, subd. 4(b) (2000), a person convicted of a crime for the benefit of a gang “is not eligible for probation, parole, discharge, work release, or supervised release until that person has served the full term of imprisonment as provided by law.”  The state contends that the district court therefore violated Minn. Stat. § 609.229, subd. 4(b), by announcing that appellant would be eligible for supervised release after serving a portion of his executed sentence and by staying appellant’s sentence for the second conviction.  We agree and conclude that appellant’s proposed remedy of the district court’s sentencing errors is not a lawful option.

Rather than simply choosing among the lawful sentencing options, we conclude that the preferable result here is to remand the matter for resentencing in order to “effectuate[] the intention of the sentencing judge.”  Bangert v. State, 282 N.W.2d 540, 547 (Minn. 1979).  Bangert held that, where the district court imposes an invalid sentence, “the interests of justice would be best served by remanding to the sentencing judge for resentencing” rather than having the appellate court choose between valid available corrected sentences.  Id.  We note, however, that the district court will be bound in resentencing appellant by the principle that “[w]here, as here, a sentence has been set aside upon application of the [appellant], the trial court on resentencing may not impose a more severe penalty than the sentence which it has already set for each offense.”  State v. Prudhomme, 303 Minn. 376, 376, 228 N.W.2d 243, 244 (1975); see also North Carolina v. Pearce, 395 U.S. 711, 724, 89 S. Ct. 2072, 2080 (1969) (stating that due-process rights are violated if a defendant is punished for having successfully pursued a right of appeal).

            Affirmed in part, reversed in part, and remanded.