This opinion will be unpublished and

may not be cited except as provided by

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







State of Minnesota,





Selvin Banks,




Filed July 20, 2004

Klaphake, Judge


Hennepin County District Court

File No. 02083306



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, Benjamin J. Butler, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for appellant)


            Considered and decided by Klaphake, Presiding Judge, Schumacher, Judge, and Stoneburner, Judge.


U N P U B L I S H E D   O P I N I O N


            Appellant Selvin Banks challenges his conviction for first-degree aggravated robbery, arguing that the eyewitness identification evidence was insufficient to sustain his conviction.  Appellant further alleges that the district court abused its discretion by instructing the jury in the disjunctive on one of the elements of aggravated robbery.

            When the evidence is viewed in the light most favorable to the verdict, there is sufficient evidence to permit the jury to find appellant guilty beyond a reasonable doubt.  Further, the district court’s instructions, when viewed in their entirety, fairly and adequately explain the law of the case.  We therefore affirm.


            1.         Sufficiency of the Evidence

            This court reviews a sufficiency of the evidence claim to determine whether the jury could reasonably find the defendant guilty beyond a reasonable doubt, in light of the facts in evidence and the legitimate inferences that can be drawn from them.  State v. Oates, 611 N.W.2d 580, 586 (Minn. App. 2000), review denied (Minn. Aug. 22, 2000).  The evidence is viewed in the light most favorable to the verdict and it is assumed that the jury believed the state’s witnesses and disbelieved any evidence to the contrary.  Id. 

            Identification is a fact issue within the jury’s exclusive province to decide.  Id.  The state must prove identity beyond a reasonable doubt.  State v. Armstrong, 311 Minn. 541, 543, 249 N.W.2d 176, 178 (1976).  A conviction can rest upon the testimony of a single credible eyewitness.  State v. Bliss, 457 N.W.2d 385, 390 (Minn. 1990).  It is the jury’s task to determine whether inconsistencies in testimony undermine the credibility of a witness.  Id

            Eyewitness identification testimony is evaluated on the basis of five factors: (1) the opportunity of the witness to observe the perpetrator; (2) the length of time the perpetrator was viewed by the witness; (3) the stress the witness was under; (4) the lapse of time between the crime and the identification; and (5) the effect of police identification procedures on the identification.  State v. Mesich, 396 N.W.2d 46, 50 (Minn. App. 1986), review denied (Minn. Jan. 2, 1987). 

            Here, the eyewitness not only observed appellant during the robbery, but also recognized him from an earlier visit to the store.  Although the robbery occurred in less than a minute, the eyewitness had an opportunity to observe appellant, who ordered him to open the cash register and who passed closely by the eyewitness on the way to the other cash register.  Immediately after the robbery, although he was “shaken up,” the eyewitness called 911 and was able to relay information to the dispatcher, including descriptions gathered from other witnesses in the store of the color and style of the getaway car, a partial license plate number, a color description of the clothing the two robbers wore, and an impression of their hairstyles.  Further, the eyewitness picked appellant’s photo out of a photo lineup one week after the offense and was certain of his identification.  Appellant did not challenge the fairness of the photo lineup.  Although appellant’s wife testified as an alibi witness, the jury determines the weight and credibility of individual witnesses and was free to reject her testimony.  See Bliss, 457 N.W.2d at 390.

            Viewing the evidence in the light most favorable to the verdict, we conclude that there is sufficient evidence to permit the jury to reach its verdict.

            2.         Jury Instructions

            The district court has considerable discretion in crafting jury instructions, which are reviewed in their entirety to determine whether they fairly and adequately explain the law of the case.  State v. Kuhnau, 622 N.W.2d 552, 555-56 (Minn. 2001).  An instruction is erroneous if it materially misstates the law.  Id. at 556.  An appellant who claims that the court erred in instructing the jury bears the burden of showing the error and that he or she was prejudiced by the error.  Id.

            Because a defendant has the right to a unanimous jury verdict in criminal cases, a disjunctive instruction is not favored.  Minn. R. Crim. P. 26.01, subd. 1(5); State v. Hart, 477 N.W.2d 732, 739 (Minn. App. 1991), review denied (Minn. Jan. 16, 1992).  We analyze a disjunctive instruction to determine whether it denies unanimity by stating the elements of a crime in the alternative, or whether it simply allows the jury to decide the conflicting underlying facts.  State v. Stempf, 627 N.W.2d 352, 357 (Minn. App. 2001).  Thus, for example, two elements must be proven for controlled substance crime:  (1) possession and (2) controlled substance.  Id.  Because possession can be proved by showing either actual or constructive possession, a jury could reasonably differ on whether a defendant had actual or constructive possession, so long as the jury agreed that some type of possession existed.  Id.; see also State v. Crowsbreast, 629 N.W.2d 433, 439 (Minn. 2001) (concluding in first-degree domestic abuse murder case, pattern of domestic abuse must be established, but jury may differ on which acts constitute past pattern of domestic abuse).

            Here, appellant is charged with aggravated robbery.  The disputed element of the crime is use of a dangerous weapon.  The instruction given by the district court required the jury to find that appellant used either a dangerous weapon or something fashioned into a dangerous weapon.  In either case, however, the jury had to agree that some type of a dangerous weapon was part of the conduct.  Thus, like Stempf and Crowsbreast, jury unanimity was required on the act appellant committed, but not on the legal theory by which it satisfied the statutory element. 

            Viewing the instructions as a whole, we conclude that this instruction fairly and adequately explained the law of the case.  The district court instructed the jury that it must reach a unanimous verdict, and appellant’s defense was based on alibi and identification, rather than on a challenge to the dangerous weapon testimony.  We therefore conclude that the district court did not abuse its discretion by using this instruction.