This opinion will be unpublished and

may not be cited except as provided by

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






State of Minnesota,





Kenneth Francis Roberts,



Filed February 3, 2004


Toussaint, Chief Judge


Hennepin County District Court

File No. 02031603



Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and


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


John M. Stuart, State Public Defender, Rochelle Rene Winn, Assistant State Public Defender, 2221 University Avenue S.E., Suite 425, Minneapolis, MN 55414 (for appellant)


            Considered and decided by Schumacher, Presiding Judge; Toussaint, Chief Judge; and Shumaker, Judge.


U N P U B L I S H E D  O P I N I O N


Toussaint, Chief Judge


Kenneth Francis Roberts appeals from his conviction of illegal possession of a firearm.  Because the evidence presented at trial was sufficient to sustain his conviction, affirm.


 Sufficiency of the Evidence           

When 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 the light most favorable to the conviction, is sufficient to allow the jurors to reach the verdict that they did.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  We 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), and will not disturb the verdict if the jury, acting with regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude the defendant was guilty of the charged offense.  State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).

Roberts was tried by a jury and convicted of illegal possession of a firearm under Minn. Stat. § 624.713, subd. 1 (b) (2002).  While driving Roberts and three other passengers in his taxicab, the driver observed Roberts holding a gun in the back seat of he taxi.  He also noticed the three passengers in the back seat passing the gun to each other.

Roberts argues that the driver’s eyewitness identification of him was faulty and insufficient to sustain his conviction.  He contends that the passengers may have changed positions in the taxi between the time the witness saw the gun being passed and when the police arrived.  He also questions the sufficiency of the identification because all the passengers shared similar physical characteristics, which could increase the potential for confusion and misidentification.

Although Roberts questions the reliability of the eyewitness’s identification, this is a question of fact for the jury to determine.  State v. Otten, 292 Minn. 493, 494, 195 N.W.2d 590, 591 (1972).  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, and a conviction may rest on the testimony of a single credible witness.  State v. Miles, 585 N.W.2d 368, 373 (Minn. 1998).

Here, the jury heard the taxi driver’s eyewitness account of the events.  The driver testified about his habit of identifying his passengers when they enter the taxi, the amount of time Roberts was in the taxi, and his interactions with Roberts.  He also testified to identifying Roberts in a photo lineup two weeks after the incident and identified him again in the courtroom.  Despite Roberts’s argument to the contrary, there is no requirement that all individuals involved in a crime who share similar physical characteristics must be included in the lineup.  Under these circumstances, it cannot be said that the eyewitness identification is not entitled to the weight the jury gave it.  The evidence was sufficient for the jury to find Roberts guilty of illegal possession of a firearm.

Ineffective Assistance of Counsel

To prevail on a claim of 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, 694, 104 S. Ct. 2052, 2064, 2068 (1984)).

In his pro se supplemental brief, Roberts argues he was denied effective assistance of counsel because his attorney failed to investigate the case, failed to adequately prepare, and failed to call a witness that could establish his innocence.  “[A]n appeal from a judgment of conviction is generally not the proper method of raising an issue concerning the effectiveness of defense counsel because of the difficulty an appellate court has in determining the facts regarding the representation.”  State v. Christian, 657 N.W.2d 186, 194 (Minn. 2003) (citing State v. Gustafson, 610 N.W.2d 314, 321 (Minn. 2000)).  “The preferred procedure is to raise the issue of ineffective assistance in a petition for post conviction relief in the district court.”  Id.