This opinion will be unpublished and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

A03-231

 

 

State of Minnesota,

Respondent,

 

vs.

 

Mai Yang,

Appellant.

 

 

Filed April 13, 2004

Affirmed

Huspeni, Judge*

 

 

Ramsey County District Court

File No. KX-02-303

 

 

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

 

Susan Gaertner, Ramsey County Attorney, Darrell C. Hill, Assistant Ramsey County Attorney, 50 W. Kellogg Blvd., Suite 315, St. Paul, MN 55102 (for respondent)

 

John Stuart, State Public Defender, Cathryn Young Middlebrook, Assistant State Public Defender, 2221 University Avenue S.E., Suite 425, Minneapolis, MN 55414; and

 

Bradford W. Colbert, L.A.M.P., Room 254, 875 Summit Avenue, St. Paul, MN 55105 (for appellant)

 

 

            Considered and decided by Toussaint, Chief Judge, Minge, Judge, and Huspeni, Judge.

U N P U B L I S H E D   O P I N I O N

HUSPENI, Judge

Appellant, in challenging his conviction of second-degree assault committed for the benefit of a gang, argues that the trial court abused its discretion in allowing a Minnesota Gang Strike Force member to testify as an expert, and that there was insufficient evidence to support a determination either that he had committed second-degree assault or that the assault was for the benefit of a gang.  Because we conclude that the expert testimony was properly monitored and limited by the trial court and that the evidence was sufficient to allow the jury to reach its verdict, we affirm.

FACTS

Appellant Mai Yang was involved in a large group altercation outside of a billiard hall.  The incident unfolded as follows.

            Mark Miller, an employee at the billiard hall, testified that two groups of Hmong customers came in separately.  When another employee told Miller that the two groups were “facing off,” he attempted to intervene by warning them over the loudspeaker and later by physically breaking up a near-fight.  Miller eventually told the two groups to pay up and leave. 

Just after the groups left the hall, they began fighting outside.  Miller witnessed the fighting and telephoned the police.  Another employee present but not working that night, observed someone with a hidden object approach Moua Thao and then strike him with something that looked like a hammer.

Thao was hit and fell unconscious early in the fight.  He testified that he had been at the hall with his cousin Frank, his nephew Michael, and a couple of girls who knew Frank.  Thao had gone into the bathroom, and when he came out, his cousin was arguing with some people that Thao did not know,and Miller had intervened.  Once outside the hall, Thao saw his cousin arguing with one of the other group.  He tried to get him to leave, but the group surrounded them and Thao was hit in the head with a long object.  He was unconscious until sometime after the police arrived, and sustained a one-inch lump on his head and the loss of a tooth.

Thao’s nephew, Michael, testified that his group also included another uncle, Ger.  He said that when the other group of six or seven came into the hall, one of them started staring at him.  Atsome point, the “starer” came face-to-face with Michael’s uncles.  Michael heard loud arguing and went to support his uncles.  When the groups were ousted from the hall, the second group was joined by additional persons near the open trunk of a running car.  After the second group surrounded Michael’s group, they asked him, Thao, and the others, “What you bang?”  He said Thao tried to break the group up, but was hit and attacked even when he was on the ground.  Michael said that the same person who swung at Thao also hit Ger.  He thought the assailant was wearing a red jacket and saw that he held a hammer when he swung at Ger.  Michael had never seen any of the group before that night; he testified that he is not a gang member but three of his cousins were.

            Frank also testified to the staring, the car, the weapons (including a hammer, a snow scraper, and a tire iron), and the fact that Thao’s assailant was wearing a red shirt and holding a hammer.  He heard the other group ask, “What you bang?”  Eventhough they responded that they don’t “bang” anything, the fight started.  Frank, like the others in Thao’s group, had never seen any of the people before. 

            Three officers testified about the altercation.  Officer Nicholas Olson saw people fleeing the scene when he arrived two minutes after getting the call.  He and other officers detained as many people as they could.  Olson testified that Yang was wearing a red jacket when he was booked, and Yang’s booking photo showed a red collar.  Initially, a couple of people, including Yang, identified Robert Lor as the attacker.  Yang was in the front passenger seat of a car attempting to leave the parking lot when the police stopped it.  A hammer was seized from the vehicle.  Officer Michael Parkos talked to Yang, noted the red jacket, and stated that Yang identified himself as Robert Lor.[1]  Parkos also spoke with the three girls who were with Thao’s group at the hall.  The girls identified Thao’s attacker as someone with a red jacket.  One of the girls stated that one of the group kept “dogging one of their boys.” 

Minnesota Gang Strike Force member Deputy Jonathan Hankes testified that he specializes in and works daily with Asian, including Hmong, gangs.  He interviewed 10 to 12 witnesses involved in this case and reviewed the police reports.  He testified that the Strike Force uses the ten-point gang-identification criteria as a guideline to identify gang members and read the ten points to the jury.[2]  He also described how the different criteria are weighed in determining gang membership.  He clarified that “What you bang?” means “what gang do you belong to?,” and testified as to some causes of gang conflicts, such as retaliation for being disrespected.  Hankes stated that disrespect may be as simple as “eyeballing” or staring someone down. 

Deputy Hankes testified that he is familiar with the IG or Imperial Gangster gang, and described its symbols and its relations with the Asian Posses and other gangs.  He then testified that three of the people apprehended with Yang were IG and he testified to the criteria they met.  He reviewed the information available to him about Yang and opined that Yang possesses three or more of the ten criteria showing him to be an IG member.  Hankes was cross-examined on each of the bases for his conclusion. 

            P.H., who avoided adult certification by entering a plea bargain, was the only witness from Yang’s group who testified.  He was the person in the running vehicle when the others exited the hall.  When he saw there was going to be a fight, he opened his trunk and got a shovel handle.  P.H. saw Yang get something from the trunk and hit someone.  P.H. also hit someone. 

P.H. denied membership in a gang, but said he associated with members of the Oriental Ruthless Boys and the 612s.  He testified that Yang is in the Imperial Gangsters and others present were in the Asian Posses.  He also testified that Yang wore a red jacket that night, and that he heard the expression “What you bang?”

The three girls who were with Thao’s group were called as defense witnesses; all three changed the statements they had made at the scene and were impeached on cross-examination.

The jury returned a verdict of guilty as to the counts of second-degree assault and second-degree assault for the benefit of a gang, as well as third- and fifth-degree assault.  Yang was acquitted on the counts of first-degree assault and first-degree assault for the benefit of a gang.

D E C I S I O N

1.         Background

At the time of Yang’s trial, the trial court had the benefit of this court’s opinion in State v. DeShay, 645 N.W.2d 185 (Minn. App. 2002), aff’d, 669 N.W.2d 878 (Minn. 2003), which upheld the admissibility of testimony by an expert regarding the ten-point gang-identification criteria.  The supreme court granted review of this court’s DeShay opinion.  After Yang submitted his principal brief on appeal, the supreme court released two opinions, State v. DeShay, 669 N.W.2d 878 (Minn. 2003), and State v. Lopez-Rios, 669 N.W.2d 603 (Minn. 2003).  Respondent State of Minnesota’s brief was filed after release of DeShay and Lopez-Rios, and both parties addressed the holdings of those opinions at oral argument.

2.         Gang-Expert Testimony

“The admission of expert testimony is within the broad discretion accorded a trial court, and rulings regarding materiality, foundation, remoteness, relevancy, or the cumulative nature of the evidence may be reversed only if the trial court clearly abused its discretion.”  State v. Ritt, 599 N.W.2d 802, 810 (Minn. 1999) (quotation and citations omitted).  Especially in criminal cases, however, district courts should exercise caution in admitting expert testimony because of the potential for experts with specialized knowledge to unduly influence the jury.  DeShay, 669 N.W.2d at 885.

The primary consideration for admission of evidence under Minn. R. Evid. 702 is “whether the testimony will assist the jury in resolving factual questions presented.”  Lopez-Rios, 669 N.W.2d at 612 (quoting State v. Grecinger, 569 N.W.2d 189, 195 (Minn. 1997)).  Even if the testimony is specialized knowledge and will assist the trier of fact under rule 702, however, it should still be excluded if its probative value is substantially outweighed by the danger of unfair prejudice under Minn. R. Evid. 403.  DeShay, 669 N.W.2d at 888.  In the case of gang-expert testimony, it is critical that the district court scrutinize proffered testimony, preferably outside the presence of the jury, exclude it where irrelevant, confusing, and otherwise unhelpful, and carefully monitor the testimony so it does not unduly influence the jury.  Id. 

The supreme court’s focus in DeShay was on the content of the expert’s testimony when compared to the lay witness testimony already in the record.  Addressing the admission of gang-expert testimony, the DeShay court voiced several concerns:  (1) “largely duplicative” gang-expert testimony gives little assistance to jurors, id. at 886; (2) testimony from lay witnesses “is how the state can and should go about proving the essential elements” of a crime committed for the benefit of a gang, id.; (3) expert testimony should not be used to “launder inadmissible hearsay evidence,” id.; (4) expert testimony should not serve as a pretext for admitting unlimited or far-reaching opinions on criminal gangs in general, id. at 886-88; (5) the ten-point gang-identification criteria are of questionable help and some question their reliability, id. at 886 n.7, 887 n.8; and (6) testimony concerning prior offenses of gang members may prejudice defendants by placing them in the position of defending others’ criminal activities, see id. at 887.[3]

Mindful of the cautions expressed in DeShay, this court will address the specific challenges raised by Yang,[4] considering the specific facts to be proved, and whether Hankes’s testimony was helpful to the jury in making those factual determinations.  

Appellant argues that testimony regarding the ten-point gang-identification criteria should be excluded as unreliable, improper, and prejudicial, and that Yang does not fit the criteria about which Hankes testified.  We note initially that while the DeShay court noted in a footnote the questionable reliability of the ten-point gang-identification criteria, those criteria were not held to be inadmissible.  Id. at 887 n.8. 

Yang’s specific challenges concerning the ten-point gang-identification criteria testimony are in regard to (1) his gang tattoo, (2) his alleged admission of gang membership, (3) his other criminal activity, and (4) the underlying cause of the incident. 

First, regarding the tattoo, Hankes testified that about one year before the trial, he saw and photographed Yang’s Asian Crips gang tattoo on his shoulder and that Asian Crips was Yang’s former gang affiliation.  Hankes also described how gang members might jump from one gang to another, but that it would be unusual.  The court had ruled in limine that Yang would not be required to show the jury his tattoo.  Thus, the court properly monitored the testimony to allow the expert’s first-hand knowledge while protecting Yang from prejudicial self-incrimination.  Hankes’s testimony about gang culture was helpful to the jury.  See Lopez-Rios, 669 N.W.2d at 612 (stating that brief history of specific gang rivalry and importance of retaliation in gang culture may have been helpful).  Yang was also entitled to argue that he did not have a gang tattoo and that any tattoo would not constitute an admission of gang membership.  Therefore, we conclude that the court did not abuse its discretion in allowing this challenged testimony. 

Second, in our review of Hankes’s testimony that Yang had previously “admitted” gang membership and that “a reliable source” had named Yang a gang member, we note that Hankes clarified that the source for his testimony was police reports.  Although he was not the author of those police reports, he had access to the reports as a member of the Gang Strike Force.  While mindful that DeShay was concerned with the laundering of inadmissible hearsay evidence, we conclude that this limited testimony did not reach the level of objectionable, inadmissible laundered hearsay that must be avoided.  669 N.W.2d at 886.  Hankes explained that the alleged admission derived not from a prior criminal investigation of Yang, but from an investigation in which Yang was a victim, not a criminal defendant.  This testimony precluded, we believe, an inference that Yang had previously committed a crime.  Similarly, the reliable source was identified as a Milwaukee Police Department Gang Investigator.  The court allowed the testimony, even though it was hearsay, because it was part of the methodology of gang identification set up by statute, and therefore Hankes could reasonably rely on these police reports in his investigation of Yang.

Third, despite the trial court’s in limine ruling that any evidence of Yang’s prior trial and conviction for committing a crime for the benefit of a gang was inadmissible, Hankes mentioned twice that Yang “had been involved in other criminal activity.”  Defense counsel objected each time and those objections were sustained.  The court also cautioned Hankes to make no further reference to that topic, and instructed the jury to disregard the testimony.  Yang’s mistrial motion based on this testimony was denied.  Our careful review of the record convinces us the two statements were general, isolated, and without reference to Yang’s commission or conviction of past crimes, and the court took prompt and satisfactory action to strike the testimony.  We conclude, therefore, that the court did not abuse its discretion in denying the motion for mistrial.  See State v. Miller, 573 N.W.2d 661, 675-76 (Minn. 1998) (affirming denial of mistrial motion when witness stated that defendant had past felonies).

Finally, Yang argues that it was error to permit Hankes to offer an opinion as to “what the underlying cause of this incident was.”  We see no error.  Hankes’s reply was that “[t]hey wanted to be confrontational, they had the numbers there of gang members, they overpowered the people they were maddogging, they eyeballed the kids next to them and they, you know, asked, What do you bang?  That’s pretty much all they need to start a fight.”  Contrary to Yang’s claim, we conclude that the answer did not go directly to the issue of his intent, but was instead a summary of the events leading to the altercation, without specific reference to Yang, and describes the general gang culture of respect and confrontation without stating that Yang’s conduct specifically met that pattern.  Accordingly, the testimony was properly allowed, and does not reach the level of violating any of the cautions expressed in DeShay.

In summary, we believe that Hankes’s testimony was helpful to the jury and would have assisted the jury in understanding the gang-related context of the crime.  Again, mindful of the cautionary language of DeShay, we conclude that the trial court exercised appropriate discretion in limiting and monitoring the expert testimony, that the testimony did not offend any of the cautions set forth in DeShay, and that the trial court did not err in admitting the challenged testimony.   

3.         Sufficiency of the Evidence

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 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).  The reviewing 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).  This is especially true when resolution of the matter depends mainly on conflicting testimony.  State v. Pieschke, 295 N.W.2d 580, 584 (Minn. 1980).  The reviewing court 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 conclude the defendant was guilty of the charged offense.  State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).

A.        Second-Degree Assault

Yang was convicted of assault in the second degree under Minn. Stat. § 609.222, subd. 1 (2000).  The crime requires proof that Yang assaulted another “with a dangerous weapon.”  Id.  The criminal code defines “dangerous weapon” as

any firearm, whether loaded or unloaded, or any device designed as a weapon and capable of producing death or great bodily harm, . . . or other device or instrumentality that, in the manner it is used or intended to be used, is calculated or likely to produce death or great bodily harm.

 

Minn. Stat. § 609.02, subd. 6 (2000). 

            Yang argues, essentially, that the state failed to show that the hammer was used, or intended to be used, in a manner “calculated or likely to produce death or great bodily harm.”  Id.  We disagree.  The state produced ample evidence showing Yang’s use of the hammer in such a manner that Thao suffered great bodily harm: (1) several witnesses identified Yang as Thao’s assailant, (2) Yang struck Thao in the forehead and with such force as to render Thao unconscious, (3) a witness described Yang approaching Thao and concealing the hammer, (4) witnesses described the object as a hammer, (5) a hammer was found in the same car in which Yang was seated when arrested, and (6) Thao’s injuries – the lump on the head and the lost tooth – were observed and photographed.  We conclude the evidence was sufficient to establish that a hammer was used in a way likely to produce great bodily harm.

B.        Assault for the Benefit of a Gang

Finally, Yang argues that the evidence was insufficient to convict him of second-degree assault committed for the benefit of a gang under Minn. Stat. § 609.229, subd. 2 (2000).  Again, we disagree and find the evidence sufficient.

“Criminal gang” is defined in subdivision 1 as “any 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 certain offenses set out in the statute, (2) has a common name or identifying sign or symbol, and (3) includes members who individually or collectively engage in or have engaged in a pattern of criminal activity.  Minn. Stat. § 609.229, subd. 1 (2000).  The crime requires proof that a crime was committed “for the benefit of, at the direction of, in association with, or motivated by involvement with a criminal gang, with the intent to promote, further, or assist in criminal conduct by gang members.”  Id., subd. 2.

Yang contends that the state did not prove that the Imperial Gangsters were a “criminal gang” under the statute.  Hankes testified, however, about the Imperial Gangsters, crimes committed by several of its members, and ally gangs, including the Asian Posses.  He had investigated other crimes by the Imperial Gangsters and Asian Posses in Minnesota.  See State v. Carillo, 623 N.W.2d 922, 927-28 (Minn. App. 2001) (allowing police officer’s testimony that gang constituted “criminal gang”), review denied (Minn. June 19, 2001).  P.H. testified that he and Yang were with Asian Posses gang members the night of the altercation and clarified that a group of gangs is called a “set.”  P.H. and Hankes also testified that Yang is an Imperial Gangster.  The evidence showed that gang slang and culture were at the center of the altercation in the hall.  Lay witnesses testified to instances of gang slang and culture continuing at the scene of the assault.  Yang obtained his weapon directly from a witness who associated with gangs and who testified that Yang was a gang member and associated with other gang members.  Substantial evidence also places Yang taking the first “punch” in this gang-based altercation.  Therefore, we conclude the evidence was sufficient to show that Yang associated with a gang, that the assault was motivated by involvement with a criminal gang, and that Yang acted with the intent to promote criminal conduct by gang members.   

            Affirmed.

 

 



*  Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10. 

[1]  Yang had also given Parkos a second false name, Vang.

[2]  Before Hankes testified, defense counsel moved in limine to exclude testimony regarding a prior conviction of Yang for a crime committed for the benefit of a gang, and testimony regarding the Strike Force’s ten-point gang-identification criteria for identifying gang members.  The court excluded evidence of Yang’s prior conviction, of Yang holding a gun in a gang-related photograph, of the name of a “reliable source” identifying Yang as a gang member, and of a statement by Yang’s friend regarding the red jacket.  Testimony regarding the ten-point gang-identification criteria was not excluded.

[3]  Despite these concerns, the supreme court in DeShay held that admission of the gang-expert testimony was harmless error because it “was, for the most part, duplicative of testimony given by witnesses with first-hand knowledge of the relevant events and which established that DeShay was a member of, and involved with, a group that operated as a criminal gang.”  DeShay, 669 N.W.2d at 888.  In Lopez-Rios, a companion case to DeShay, the supreme court also concluded that admission of gang-expert testimony was harmless error, but not on the grounds that the ten-point gang-identification criteria were unreliable, but because the testimony was largely duplicative of lay-witness testimony.  Lopez-Rios, 669 N.W.2d at 612-13.

[4]  Because we conclude that little, if any, of the expert’s testimony in this case was duplicative, we need not consider this caution.  We recognize also that if, indeed, the trial court erred here in admitting expert testimony, it is probable that DeShay’s determination that error was harmless because testimony was largely duplicative would not apply in this case.