This opinion will be unpublished and

may not be cited except as provided by

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








State of Minnesota,





Harold Cleveland Porter,



Filed June 15, 2004


Willis, Judge


Hennepin County District Court

File No. 02058103


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


Amy Klobuchar, Hennepin County Attorney, Michael K. Walz, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN  55487 (for respondent)


John M. Stuart, State Public Defender, Marie Wolf, Assistant Public Defender, 2221 University Avenue SE, Suite 425, Minneapolis, MN  55414 (for appellant)


            Considered and decided by Wright, Presiding Judge; Schumacher, Judge; and Willis, Judge.


U N P U B L I S H E D   O P I N I O N


            Appellant challenges his convictions of aggravated robbery and theft of more than $2,500, arguing that the evidence is insufficient to support the jury’s verdicts.  Appellant also argues in his pro se supplemental brief that he received ineffective assistance of counsel.  Because a jury could reasonably conclude that appellant committed the charged crimes and appellant has failed to show that his counsel was ineffective, we affirm.


Appellant Harold Cleveland Porter was discharged from his position with Signature Dining, a Richfield catering business, on June 17, 2002, following an argument with one of Signature’s managers.   

            At approximately 6:30 a.m. on June 28, 2002, Officers Carnes and Lehman of the Richfield Police Department were called to Fraser School, which is adjacent to Signature’s facility in Richfield.  The school’s custodian, Prieston Clark, had noticed damage to the lock and steering column of a car in the school’s parking lot and suspected that the car may have been stolen and dumped there.  The police contacted the car’s owner, Sandra Rivera, who told them that the car had not been stolen and that she had loaned it to a friend.

            At approximately 7:00 a.m., a man wearing a white jacket and a dark mask, hood, or hat approached Signature employee Kathy Peterson as she was preparing to enter the cash room of the Richfield facility.  The man demanded that Peterson unlock the cash- room door, and when Peterson was unable to do so immediately, the man struck her in the face, causing a swollen lip.  After Peterson opened the door, the man sprayed her in the face with mace, bound her hands with a plastic cable, ordered her not to move, and took more than $20,000 in cash.  Before leaving the cash room, the robber pressed a button next to the door, allowing him to open the door without activating an alarm. Peterson waited until she thought it was safe to get up and then informed co-workers of the robbery. 

            A Signature employee called 911, and Officers Carnes and Lehman again responded.  The officers were given a description of the suspect by dispatch, and en route to Signature they passed through the Fraser School parking lot and again encountered Clark. Clark denied seeing anyone matching the robber’s description but told Officer Carnes that the car that Clark had called about earlier was now gone.  The police again called Rivera, the car’s owner, and learned that the friend who had borrowed the car was Porter. 

            Detective Roberts of the Richfield Police Department arrived at Signature shortly before 8:00 a.m.  Roberts asked Steve Brunner, Porter’s ex-supervisor, if he knew of any disgruntled former employees because Roberts concluded that non-employees probably would not know that large amounts of cash were kept in the building.  Roberts also concluded that getting into the building, finding the cash room, and pushing the button that disarmed the cash-room alarm would probably require inside knowledge of the facility.  Brunner told her about Porter and told her that a phone message from Porter was saved on Brunner’s voice mail.  Peterson listened to the recorded message and told Roberts that the voice on the message was similar to the voice of the robber. 

            Richfield police executed a search warrant at Porter’s home and found a white chef’s jacket issued to Porter by Signature but did not find any other evidence linking Porter to the robbery.  The police arrested Porter at a Bloomington motel on July 22.  He was charged with first-degree aggravated robbery, in violation of Minn. Stat. § 609.245, subd. 1 (2000), and theft of more than $2,500, in violation of Minn. Stat. § 609.52, subds. 2(1), 3(2) (2000). 

            Porter testified at trial that (1) he was at the Signature facility at the time of the robbery, but he was outside the building; (2) he had gone to the facility to return his chef’s jackets and to exact some revenge on Brunner, who had fired him, by throwing a bag of dog manure at him; (3) he rang a bell at one of the building’s doors and told the employee who answered that he wanted to see Brunner; (4) the employee would not let him in but told him that he would get Brunner; and (5) after approximately 20 to 30 minutes Porter was told that Brunner would not come out to see him, so he abandoned his plan, left the jackets outside the door, discarded the bag of manure in a dumpster, and returned the borrowed car to Rivera.  The jury found Porter guilty of both charges.  This appeal follows.


Porter argues that the evidence at trial was insufficient to convict him because the state’s case was based on circumstantial evidence that was “equally consistent with a reasonable hypothesis of innocence.”  In considering a claim of insufficient evidence, our review is limited to a careful 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 must assume that 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).  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, reasonably could conclude that the defendant was guilty of the charged offense.  State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).  Circumstantial evidence is entitled to as much weight as direct evidence.  State v. Moore, 481 N.W.2d 355, 360 (Minn. 1992).  But a conviction “based entirely on circumstantial evidence merits stricter scrutiny than convictions based in part on direct evidence.”  State v. Jones, 516 N.W.2d 545, 549 (Minn. 1994).  A jury is in the best position to evaluate circumstantial evidence, and its verdict is entitled to due deference.  Webb, 440 N.W.2d at 430.

Porter argues that his conviction was based entirely on circumstantial evidence and that, therefore, the stricter-scrutiny standard applies.  But the state’s case was based in part on direct evidence.  Direct evidence is the testimony of a person who perceived the fact through his senses or physical evidence of the fact itself.  State v. Williams, 337 N.W.2d 387, 389 (Minn. 1983).  The evidence used to convict Porter included Peterson’s testimony regarding Porter’s voice, which is direct evidence.  See State v. Otten, 292 Minn. 493, 494, 195 N.W.2d 590, 591 (1972) (stating that victim’s identification of her assailant’s voice “was direct evidence sufficient to present a fact question for the jury”).  Because direct evidence was used to convict Porter, the stricter scrutiny afforded to convictions based entirely on circumstantial evidence does not apply.[1] 

Considering the evidence in a light most favorable to the conviction and assuming that the jury believed the state’s evidence and disbelieved any evidence to the contrary, the evidence is sufficient to support the conviction.  It is uncontradicted that, at the time of the robbery, Porter was at the Signature facility and was still angry about having been fired.  It is also uncontradicted that Porter was familiar with the interior of the facility and that as part of his former job duties he had to deliver money to the cash room.  He would have known, therefore, that large amounts of cash were kept at the facility, he would have been able to find his way to the cash room, and he could have known to press the button by the door as he left the cash room to avoid setting off the alarm.  Clark testified that the car that Porter admittedly was driving that day left the parking lot shortly before the officers arrived in response to the robbery report.  Peterson testified that the robber’s voice was “similar” to Porter’s voice and that the robber wore a white jacket, possibly a chef’s jacket.  A chef’s jacket was found at Porter’s home after the robbery.  And Brunner testified that he saw Porter inside the Signature facility on July 25, suggesting that Porter somehow had access to the facility after his termination.  Based on this evidence, a jury could reasonably conclude that Porter was the robber.

In arguing the insufficiency of the evidence, Porter emphasizes that Peterson testified only that the robber’s voice was “similar” to Porter’s voice as heard on Brunner’s voice mail but that she was not “a hundred percent sure” that the voice was the same.  But it is for the jury to decide what weight to attach to any indefiniteness or uncertainty in a witness’s identification testimony.  State v. Sutton, 272 Minn. 399, 402, 138 N.W.2d 46, 47 (1965). 

Porter also emphasizes the fact that the search of his home turned up no physical evidence linking him to the robbery other than the chef’s jacket.  But Porter testified that on the day of the robbery he left town and spent a few days in Chicago, which would have afforded him ample opportunity to dispose of any other physical evidence.  See State v. Hicks, 380 N.W.2d 869, 873 (Minn. App. 1986) (holding that absence of stolen money on theft suspect did not support insufficiency of evidence claim when suspect had opportunity to dispose of the money before being arrested).

Porter also argues that the evidence was insufficient to support the verdicts because of conflicting testimony concerning whether he was inside the Signature facility on June 25 and numerous minor inconsistencies in the testimony of the state’s witnesses.  But again, assessing witness credibility and resolving conflicting testimony is the jury’s function.  State v. Lloyd, 345 N.W.2d 240, 245 (Minn. 1984).   On this record, the jury reasonably could conclude that Porter was the person who robbed Signature. 

Porter argues in his pro se brief that his court-appointed public defender provided ineffective assistance of counsel.  To show ineffective assistance of counsel, Porter “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.’”  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)). 

Porter argues that his counsel was ineffective because he failed to call Porter’s friends and members of his family as witnesses and failed to pursue certain medical records that Porter believes would have been beneficial to his defense.  “Which witnesses to call and what evidence to present to the jury are matters of trial strategy.”  State v. Bliss, 457 N.W.2d 385, 392 (Minn. 1990).  An attorney’s decisions with regard to trial strategy “lie within the proper discretion of trial counsel and will not be reviewed later for competence.”  State v. Voorhees, 596 N.W.2d 241, 255 (Minn. 1999).  Because we will not review questions of trial strategy, Porter’s ineffective-assistance-of-counsel claim fails.


[1] But we conclude that even if the evidence were all circumstantial, it is sufficient to sustain Porter’s conviction.  Circumstantial evidence is sufficient when the reasonable inferences from that evidence are consistent with a finding of a defendant’s guilt and inconsistent with any other rational hypothesis.  State v. Langley, 354 N.W.2d 389, 396 (Minn. 1984).  Viewing the evidence in the light most favorable to the state, the circumstantial evidence here is inconsistent with any rational hypothesis except that Porter was the robber.