This opinion will be unpublished and

may not be cited except as provided by

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







State of Minnesota,





Theron Caldwell,



Filed June 15, 2004


Hudson, Judge


Hennepin County District Court

File No. 03007888


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


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


John M. Stuart, State Public Defender, Susan J. Andrews, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, Minnesota 55414-3230 (for appellant)


            Considered and decided by Willis, Presiding Judge; Hudson, Judge; and Crippen, Judge.*

U N P U B L I S H E D   O P I N I O N


            Appellant challenges his conviction of prohibited person in possession of a firearm, claiming that the state failed to meet its burden and prove beyond a reasonable doubt that he was in possession of a firearm.  Because we are persuaded that the jury could reasonably conclude that the defendant was guilty of the charged offense, we affirm. 


On January 29, 2003, between 5:30 and 6:00 p.m., Esther Mosley called 911 to report that she observed a man with a gun in the hallway of her apartment building.  Mosley testified that she saw a person standing with his back to her, blocking the stairs to the front door, with a gun in his hand.  She described the man to the 911 operator as wearing a gray coat, gray shirt, and gray jeans.  She further described the coat as having a hood with fur around the collar and described the gun as a silver revolver.  Mosley testified that she was about ten feet away from the man and watched as he was spinning the barrel of the gun.  Earlier in the day, Mosley had seen the same man with a group of men and had asked them to leave if they were not visiting anyone in the building. 

            Officer Peltz and Officer Taylor responded to Mosley’s 911 call within two to three minutes.  After arriving at the apartment building, Taylor entered through the back door, which opened to a hallway where he observed four men, including a man who fit Mosley’s description, appellant, Theron Caldwell.  Taylor testified that when he first entered the hallway, appellant’s back was facing Taylor.  When the men spotted Taylor, two of the men ran into apartment #3.  Taylor then pointed his gun at appellant and the other man who remained in the hallway and called for the men to stop. 

            Appellant was pat-searched and the police found a can of mace on him but no gun.  The police searched the hallway and did not find a gun, but they found two guns hidden in apartment #3.  Peltz showed a gun to Mosley, and she identified that gun as the gun she had seen appellant holding.  Mosley also identified appellant as the person she saw holding the gun and spinning the cylinder.  Appellant was charged with prohibited person in possession of a firearm and prohibited person in possession of mace.

            When the gun was tested for fingerprints, Toriano Simmons’s print was lifted from the gun.  Simmons was one of the men who ran into the apartment when he spotted Taylor.  The fingerprint expert did not find appellant’s prints on the gun.  The jury found appellant guilty on both counts.  This appeal follows.


Sufficiency of the Evidence

Appellant argues that this court should reverse his conviction because the state failed to prove beyond a reasonable doubt that he possessed a gun.

When considering a claim of insufficient evidence, our 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, [is] sufficient to permit the jurors to reach the verdict which 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 contrary evidence.  State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).  And 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 conclude that the defendant was guilty of the charged offense.  State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).

Appellant was convicted of prohibited person in possession of a firearm in violation of Minn. Stat. § 624.713, subd. 1(b) (2002).  Appellant stipulated to the fact that he was a person prohibited from possessing a firearm.  Therefore, the state only needed to prove that he was in possession of a firearm. 

Appellant contends that the state failed to meet its burden because it relied solely on the testimony of Mosley, and her testimony was “completely undercut” by the other evidence the state presented at trial.  Appellant argued that the following evidence “undercut” Mosley’s testimony:  (1) when Officer Taylor entered the hallway two to three minutes after Mosley contacted 911, he did not see appellant with a gun; (2) the only guns police found that night were hidden in apartment #3; (3) the gun Mosley identified as appellant’s was a different color than her original description of the gun to the police; (4) the gun had another person’s fingerprints on it; and (5) the lighting in the hallway was poor.

The state counters that Mosley’s testimony was never contradicted, and because the jury determines the credibility and weight to be given a witness’s testimony, the jury could have reasonably found appellant guilty based on Mosley’s testimony.  We agree.

The jury heard testimony that Mosley saw a man in the hallway with a gun.  She described the man to the police as wearing a gray coat with fur around the collar, gray pants, and a gray sweater.  The police arrived at the scene two to three minutes later and found a man who matched Mosley’s description in the hallway with three other men.  When the men saw the officer, two of the men ran into the nearby apartment.  After searching the men and the apartment, the police found two guns.  After the police had appellant in custody, Mosley identified appellant and the gun.  Viewing the evidence in the light most favorable to the verdict, and assuming that the jury believed Mosley’s testimony, it is plausible that when appellant saw the police, he gave the gun to Simmons, who then ran into the apartment and hid the gun.  The jury has the authority to weigh and assess the credibility of witnesses.  See State v. Profit, 591 N.W.2d 451, 467 (Minn. 1999) (stating that the jury is in the best position to judge the credibility of witnesses, and appellate courts must assume that jury believed the state’s witnesses).  Here, the jury found Mosley’s testimony credible, and appellant has provided nothing to show that this determination should be reversed.

Appellant’s Pro Se Arguments

In his pro se brief, appellant argues that his trial counsel did not represent him “very well” because she did not:  (1) put his friend Gregory Ridley on the stand to testify; (2) allow appellant to testify on his own behalf; (3) introduce evidence that he went to the apartment to get a DVD; and (4) introduce evidence of a conversation appellant had with Officer Taylor in which appellant told Taylor that if the police found appellant’s fingerprints on the gun the police should “lock [appellant] up forever.”  Although appellant does not frame his challenges as an ineffective-assistance-of-counsel claim, in essence, his contention that his trial counsel did not represent him “very well” appears to be just such a claim. 

            To succeed in an ineffective-assistance-of-counsel claim, appellant must affirmatively prove that:  (1) his counsel’s representation fell below an objective standard of reasonableness; and (2) 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). 

            A disagreement over trial strategy does not constitute ineffective assistance of counsel.  State v. Gobely, 366 N.W.2d 600, 603 (Minn. 1985), cert. denied, 474 U.S. 922 (1985).  And determining which witnesses to call at trial is a tactical determination.  See Scruggs v. State, 484 N.W.2d 21, 26 (Minn. 1992) (trial counsel has discretion to decide scope of evidence to present and which witnesses to call at trial).  Thus, appellant’s trial counsel’s decision not to call Ridley to testify was a tactical decision and does not constitute ineffective assistance of counsel.  Similarly, it appears appellant’s trial counsel advised him not to testify because the state would then have the opportunity to introduce his prior convictions, and the introduction of these prior crimes would hurt his case.  Again, a disagreement over trial strategy does not constitute ineffective assistance of counsel.

Moreover, this court may dispose of an ineffective-assistance-of-counsel claim when the appellant fails to prove there was a reasonable probability the outcome would have been different.  See Gates, 398 N.W.2d at 563; see also Strickland v. Washington, 466 U.S. 668, 697, 104 S. Ct. 2052, 2069 (1984) (noting that a court is not required to address both components of the analysis: “If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.”).  In this case it is clear that the jury determined that Mosley’s eyewitness testimony was credible and relied on this evidence to convict appellant.  Therefore, appellant’s explanation that he was at the apartment building to borrow a DVD would not have changed the outcome of this case.  Further, evidence of appellant’s conversation with Officer Taylor concerning the fingerprint evidence would also not have changed the outcome of this case.  Appellant’s attorney introduced evidence that the police found Simmons’s fingerprints on the gun and did not find appellant’s fingerprints on the gun.  It appears the jury did not place much weight on the fingerprint evidence.  Therefore, because appellant was not prejudiced by his attorney’s failure to introduce this evidence, appellant failed to establish that his trial counsel was ineffective.



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