This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-2138

 

State of Minnesota,

Respondent,

 

vs.

 

Fong Lee,

Appellant.

 

Filed December 5, 2006

Affirmed

Willis, Judge

 

Ramsey County District Court

File No. K8-04-3298

 

 

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

 

Susan Gaertner, Ramsey County Attorney, Jeanne L. Schleh, Assistant County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN  55102 (for respondent)

 

John M. Stuart, State Public Defender, Suzanne M. Senecal-Hill, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for appellant)

 

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


U N P U B L I S H E D   O P I N I O N

WILLIS, Judge

            Appellant challenges the sufficiency of the evidence to support his convictions of second-degree murder and attempted second-degree murder.  Because the evidence introduced at trial was sufficient to allow the jury to reach the verdict that they did, we affirm.

FACTS

On the night of August 21 and into the early morning of August 22, 2004, appellant Fong Lee, his brother Pao Lee, and their friend Tou Yang were at Lucy’s Bar in the Frogtown neighborhood of Saint Paul, Minnesota.  At some point during the night, appellant handed Yang a plastic bag containing a gun, which Yang removed from the bag and hid in the waistband of his pants.

Sometime after 1:00 a.m., an argument began between appellant’s two companions and Vong Xiong, another man in the bar.  Appellant, Pao Lee, and Yang left the bar, as did Xiong and approximately eight of his friends, and the altercation continued outside the bar.  The two groups agreed at one point that they would not fight, and Pao Lee and Xiong began to shake hands, but then one of Xiong’s friends punched Yang, knocking him to the ground.  According to witnesses, appellant then said something like, “F*** this.  Give me the strap.”  Appellant reached down to where Yang was still lying on the ground, took the gun from Yang’s pants, stood up, and said something to the effect of, “Do you guys want to die?”  Appellant fired several shots, hitting two bystanders.  Houa Lee was shot in the knee, and Joe Thao was shot in the chest and died later at the hospital.  After the shooting, appellant and his companions ran to Pao Lee’s father-in-law’s house. 

Two patrol officers arrived at the scene, and they were followed by two police investigators who interviewed several witnesses.  Pao Lee and Yang were arrested later that same day.  They were charged with being accessories to murder and ultimately pleaded guilty to being accessories after the fact.  During the investigation, two witnesses identified appellant in a photographic lineup as the shooter.  A warrant was issued for appellant’s arrest, and he was eventually found and arrested at his brother’s house in Detroit, Michigan, on February 2, 2005. 

In March 2005, when Pao Lee’s father-in-law moved out of his house, police searched the vacant house with a metal detector and located a box, hidden in the heating ducts, containing a gun later identified by a ballistics expert as the gun used in the August 22, 2004 shooting outside Lucy’s Bar.  The only identifiable fingerprint was on the box, and it was Pao Lee’s.  There were other, unidentifiable fingerprints on the box as well.                    

Appellant was charged with second-degree murder, in violation of Minn. Stat. § 609.19, subd. 1(1) (2004), and on the first day of trial, the complaint was amended to add a charge of attempted second-degree murder, in violation of Minn. Stat. § 609.19, subd. 1(1), and Minn. Stat. § 609.17, subd. 1 (2004).  The jury found appellant guilty of both charges.  This appeal follows.

D E C I S I O N

A person commits second-degree murder when he “causes the death of a human being with intent to effect the death of that person or another, but without premeditation.”  Minn. Stat. § 609.19, subd. 1(1) (2004); see also Minn. Stat. § 609.17, subd. 1 (2004) (defining attempts).  Appellant challenges the sufficiency of the evidence to support his convictions, specifically arguing that the evidence was insufficient to allow the jury to identify him as the shooter.   

When considering a claim of insufficient evidence, this court’s review is limited to a thorough 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 that the jury believed the evidence supporting the conviction 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 on conflicting testimony.  State v. Pieschke, 295 N.W.2d 580, 584 (Minn. 1980).  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 have concluded that appellant was guilty of the charged offenses.  Bernhardt v. State, 684 N.W.2d 465, 476–77 (Minn. 2004). 

            Emphasizing the “pandemonium” on the night of the shooting, appellant asserts that the evidence was insufficient to permit the jury to identify him as the person who shot the victims because (1) the witnesses’ descriptions of the shooter were inconsistent; (2) Yang’s statement that appellant took the gun from Yang was “shrouded by immense pressure from the police,” and later, at trial, Yang denied that it was appellant who took the gun; (3) the photographic lineups failed to reliably identify appellant as the shooter; and (4) the physical evidence suggests that Pao Lee, rather than appellant, was the shooter.   

            First, appellant argues that, because the witnesses’ descriptions of the shooter were inconsistent, there is reasonable doubt as to whether appellant was the shooter.  Although some of the testimony is inconsistent regarding the shooter’s exact height and clothing, most of it confirms the identification of appellant as the shooter because he was the tallest of the three men and the only one wearing black clothing, and none of the testimony identifies either Pao Lee or Yang as the shooter.  See State v. Spann, 287 N.W.2d 406, 407–08 (Minn. 1979) (stating that a witness’s “identification made upon fleeting or limited observation at the time of the crime is not reliable and in the absence of corroboration should not be the basis for conviction”) (emphasis added). 

The parties stipulated that appellant is 5 feet, 10 1/2 inches tall; Pao Lee is 5 feet, 6 1/2 inches tall; and Yang is 5 feet, 2 3/4 inches tall.  Officer Justin Paulson testified that, after speaking with four people at the scene, the description he released of the shooter was that of a 5-foot, 10-inch, thin male wearing black clothing.  Yang Kaleia Lor, Pao Lee’s wife, who saw the three men before they went to Lucy’s that night, testified that Yang was wearing orange pants and a white shirt, Pao Lee was wearing blue jeans, and appellant was wearing black pants.  Several witnesses identified the shooter as wearing black, whether it was his pants, his shirt, or both.  Several witnesses stated that appellant was wearing black on the night of the shooting.  Not a single witness stated that either Pao Lee or Yang was wearing black that night.      

Although at trial Yang denied knowing who took the gun from him just before the shooting, which contradicted his statement to an investigator after his arrest that appellant had given him the gun in the bar and also taken it from him just before the shooting, he did testify at trial that it was appellant who yelled, “Do you guys want to die?” And Vong Xiong, the person with whom Yang and Pao Lee argued in the bar, testified that Yang was hit and fell to the ground and that appellant, who was “wearing black,” ran and “got the gun off of [Yang’s] waist,” turned and said, “You all want to die?” and then began shooting.            

A jury’s determination can rest on the testimony of a single credible witness, State v. Miles, 585 N.W.2d 368, 373 (Minn. 1998), and in this case, the testimony of several witnesses, and Vong Xiong in particular, identified appellant as the shooter.  We may assume that the jury believed the testimony identifying appellant as the shooter and disbelieved inconsistent testimony.  The slight discrepancies in the descriptions of the shooter do not create reasonable doubt sufficient to warrant reversal of the jury’s verdict.   

Second, appellant attempts to cast doubt on Yang’s statement during his interview with a police investigator that appellant took the gun from him during the fight.  But appellant’s attorney elicited testimony at trial from the investigator and from Yang himself regarding the “immense pressure” surrounding the interview, which equipped the jury to evaluate Yang’s inconsistent statements.  We may assume that the jury believed the investigator’s testimony regarding Yang’s statement during his interview and did not believe Yang’s statement at trial that he did not know who took the gun from him.

Third, appellant asserts that the photographic lineups “failed to demonstrate beyond a reasonable doubt that appellant was the shooter.”  Two witnesses identified appellant in a photographic lineup as the shooter, and the district court determined in a pretrial hearing that none of the lineups used in this case was impermissibly suggestive and denied appellant’s motion to suppress the identifications—a denial that is not challenged on appeal.  The fact that a third witness failed to identify appellant and the fact that neither of the witnesses who identified appellant in the photographic lineup recognized him at trial were apparent to the jury, so the jury members presumably considered that information when weighing the prior identifications.  And identification of appellant as the shooter did not rest on the photographic lineup alone; several witnesses’ testimony at trial corroborated the identification of appellant as the shooter.         

Finally, appellant argues that the fact that the only identifiable fingerprint on the box containing the gun was Pao Lee’s and the fact that the bullet that struck Joe Thao traveled at an upward trajectory, indicating that the person holding the gun was shorter than Joe Thao, suggest that Pao Lee was actually the shooter.  But the fact that Pao Lee touched the box is consistent with the testimony indicating that, after appellant shot the victims, appellant, Yang, and Pao Lee all ran to the house where the gun was ultimately found, and Pao Lee and appellant went to the basement to hide the box containing the gun in the heating ducts.  And although the upward trajectory of the bullet could indicate that the person who shot Joe Thao was shorter than Joe Thao’s 5 feet, 5 inches, appellant makes this argument in an attempt to implicate Pao Lee, who, at 5 feet, 6 1/2 inches, is also taller than Joe Thao.  The physical evidence does not create a reasonable doubt sufficient to compel this court to disturb the jury’s verdict.  

None of the evidence that appellant challenges stands alone in support of the jury’s verdict, and there is ample testimony on which the jury could have based its identification of appellant as the shooter.  Because the facts in the record and the legitimate inferences drawn from them would allow a jury reasonably to conclude beyond a reasonable doubt that appellant was the individual who wielded the gun on the night in question, we conclude that the evidence is sufficient to support appellant’s convictions.

Affirmed.