This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. 480A.08, subd. 3 (1994).

STATE OF MINNESOTA

IN COURT OF APPEALS

C0-95-2383

In the Matter of the Welfare of: S.D.N., Child.

Filed June 4, 1996

Affirmed

Huspeni, Judge

Stearns County District Court

File No. JX9550347

John M. Stuart, State Public Defender, Charlann Winking, Asst. State Public Defender, 2829 University Ave. S.E., Suite 600, Minneapolis, MN 55414 (for appellant child)

Hubert H. Humphrey, III, Attorney General, Suite 1400, NCL Tower, 445 Minnesota St., St. Paul, MN 55101 (for respondent)

Roger S. VanHeel, Stearns County Attorney, Daniel A. Benson, Asst. County Attorney, 705 Courthouse Square, St. Cloud, MN 56303 (for respondent)

Considered and decided by Toussaint, Chief Judge, Huspeni, Judge, and Holtan, Judge.*

U N P U B L I S H E D O P I N I O N

HUSPENI, Judge

Appellant claims the evidence was insufficient to sustain his delinquency adjudication for controlled substance crime in the fifth degree. We affirm.

FACTS

As part of an investigation of suspected marijuana sales, Officer Brian J. Marquart, an undercover narcotics officer for the St. Cloud Police Department, called the number of a pager that had been discovered during the investigation and received a call back. In response to a question from Marquart, an unknown person set a price of $50 for a quarter ounce of marijuana and arranged to meet Marquart at 6:00 that evening.

Shortly after Marquart arrived at the meeting place, a Wendy's restaurant parking lot, a car with three white males pulled up near Marquart's car. The front seat passenger, later identified as appellant S.D.N., got out of the car and walked over to Marquart's car. Marquart suggested that the two "drive around the parking lot" and "do this deal." Appellant told his two friends to wait and got into Marquart's car. Marquart drove around the back of Wendy's, and appellant gave him a plastic packet of marijuana in return for $50. A subsequent analysis by the Bureau of Criminal Apprehension (BCA) determined that the packet contained 6.3 grams of marijuana.

Marquart asked if he could buy one ounce of marijuana; appellant said it would take a few days and cost $150. Marquart said he would call the pager again if he needed anything, and appellant gave him a new code to use.

Marquart later determined that the pager number belonged to Kenneth Roering and that the car was registered to Roering. He called the pager again several days after the first buy and spoke to a person who identified himself as Ken. A meeting was set to complete purchase of another quarter ounce of marijuana. Soon after Marquart arrived at another Wendy's parking lot, the same car present at the first buy was driven into the lot. According to Marquart, appellant got out of the front passenger seat of the car, got into Marquart's car, and exchanged a plastic bag of marijuana for $50. A BCA analysis revealed that the bag contained 7.1 grams of marijuana.

According to Marquart, because appellant was a juvenile and because Marquart was working undercover, the "only means to identify [appellant] was [to] stop him, identify him and take a picture of him." St. Cloud Police Department investigators Kenneth McDonald and James Metcalf subsequently followed the car used in the previous drug buys and when the car stopped, the officers photographed the occupants. The car's occupants were appellant and Lance Miller. When shown pictures of appellant and Miller, Marquart identified appellant as the person who sold him the marijuana.

After his arrest, appellant admitted selling marijuana to an undercover police officer "one to two times," or "[p]ossibly * * * two or three times." Appellant specifically admitted to one sale by Breckenridge Road in St. Cloud, not the location of either Wendy's.

Appellant was charged by delinquency petition with two counts of aiding and abetting a controlled substance crime in the fifth degree in violation of Minn. Stat.  152.025, subds. 1(1), 3(a) (1992); Minn. Stat.  152.01, subds. 4, 9 (1992); and Minn. Stat.  152.02, subd. 2(3) (1992).

At trial, Marquart identified appellant as the individual who sold him the marijuana on both occasions and identified Roering as the driver of the car. McDonald testified that he was assisting Marquart in surveillance on July 14 at the Wendy's parking lot in an unmarked car and identified appellant as the person who got out of the car and got into Marquart's car. Roering testified that although appellant was in the car when both sales were made, appellant did not know until after the sales that Roering had arranged a drug deal with Marquart. Roering insisted that he, not appellant, was the person who got into Marquart's car on both occasions.

This appeal followed appellant's adjudication of delinquency.

D E C I S I O N

"To be sufficient in an adjudication of delinquency, the evidence must establish the truth of the petition 'beyond a reasonable doubt.'" In re Welfare of S.W.T., 277 N.W.2d 507, 514 (Minn. 1979) (quoting In re Winship, 397 U.S. 358, 90 S. Ct. 1068 (1970)). In reviewing an insufficiency of evidence claim, this court must determine whether, given the facts in the record and any legitimate inferences that can be drawn from them, the trial court could reasonably conclude that appellant was guilty. In re Welfare of G.D., 473 N.W.2d 878, 884 (Minn. App. 1991). This court views the evidence in the light most favorable to the prosecution. In re Welfare of G.L.M., 347 N.W.2d 84, 85 (Minn. App. 1984).

Appellant argues the evidence was insufficient because: (1) the original identification of him was unreliable; (2) the identification testimony was insufficient to tie him to the incident; (3) Roering's testimony impeached any identification of appellant; and (4) the trial court's comments indicate that it relied on improper speculation rather than the evidence presented. We find no merit in any of appellant's arguments.

With regard to identification, "[t]he use of unduly suggestive identification procedures may constitute a violation of a defendant's right to due process." State v. Fox, 396 N.W.2d 862, 864 (Minn. App. 1986) (citing Neil v. Biggers, 409 U.S. 188, 196, 93 S. Ct. 375, 380-81 (1972)), review denied (Minn. Jan. 16, 1987). The test is whether the identification procedures were so impermissibly suggestive as to create a "very substantial likelihood of irreparable misidentification." State v. Cobb, 279 N.W.2d 832, 833 (Minn. 1979) (quoting Neil, 409 U.S. at 198, 93 S. Ct. at 381). The test has two parts:

1) Were the pretrial identification procedures unnecessarily suggestive; that is, did they unfairly signal the defendant out for identification?

2) If the procedures were suggestive, did the witness' in-court identification have an adequate independent origin so as to negate or reduce the likelihood of misidentification?

Seelye v. State, 429 N.W.2d 669, 672 (Minn. App. 1988). Each part must be decided on the totality of the circumstances. State v. Kowski, 423 N.W.2d 706, 708 (Minn. App. 1988).

In the present case, although Marquart was shown only two photos, we conclude that the in-court identification of appellant had adequate independent origin, whether or not the photos were impermissibly suggestive. At the time of both sales, Marquart had ample opportunity to view the individual who was selling the marijuana; the individual was sitting next to him and engaged in conversation with him. There is no indication that the situation was particularly stressful for Marquart, an experienced narcotics officer. Further, Marquart testified that he had no problem distinguishing between Roering and appellant.

With regard to appellant's challenge to the sufficiency of the identification testimony, we note initially that a guilty verdict may be based on the testimony of a single eyewitness. State v. Williams, 307 Minn. 191, 198, 239 N.W.2d 222, 226 (1976). Identification testimony need not be positive and certain; it is sufficient if a witness testifies that it is his opinion, belief, impression, or judgment that the defendant is the person he saw commit the crime. State v. Burch, 284 Minn. 300, 313, 170 N.W.2d 543, 552 (1969). Further, the credibility of an eyewitness is for the jury to decide. State v. Daniels, 361 N.W.2d 819, 826 (Minn. 1985). Thus, Marquart's testimony alone can constitute sufficient evidence to sustain the trial court's adjudication of appellant.

In response to appellant's allegation that Roering's testimony impeached that of other witnesses, we recognize that this court must view the evidence in the record in the light most favorable to the trial court's verdict and must assume the trial court believed the state's witnesses and disbelieved contrary evidence. State v. Robinson, 539 N.W.2d 231, 238 (Minn. 1995). Because this court must assume that the trial court believed Marquart and disbelieved Roering, appellant's argument is without merit.

With regard to appellant's argument that the trial court's comments indicate that appellant's adjudication was not based on the evidence presented by the state, we conclude that appellant mischaracterizes the trial court's statement. The trial court's comments indicate that Roering arranged the sales and used appellant to carry out the actual physical transfer. Although the trial court may have felt that Roering was more culpable, the record amply supports a finding of appellant's guilt in assisting Roering in the sales.

There is sufficient evidence for adjudication. Both Marquart and McDonald identified appellant as the person who left the car and entered Marquart's car when each sale was made. Marquart testified that appellant sold him marijuana while in the car on the occasion of each sale. Marquart also testified that Roering was the driver on both occasions. Thus, the evidence establishes the allegations in the petition beyond a reasonable doubt.

Affirmed.


Footnotes

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