This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat.  480A.08, subd. 3 (1994).


State of Minnesota,


Brian Lee Nelson,

Filed August 13, 1996
Norton, Judge

Anoka County District Court
File No. K9-95-1423

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

Robert M.A. Johnson, Anoka County Attorney, Marcy S. Crain, 
Assistant County Attorney, Anoka County Government Center, 
2100 Third Avenue, Anoka, MN 55303-2265 (for Respondent)

John M. Stuart, State Public Defender, Ann McCaughan, Assistant 
Public Defender, 2829 University Avenue SE #600, Minneapolis, 
MN 55414 (for Appellant)

	Considered and decided by Amundson, Presiding Judge, 
Norton, Judge, and Peterson, Judge.

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

	This is a direct appeal from a conviction of possessing or 
transferring stolen property valued in excess of $500 in violation of 
Minn. Stat.  609.53, subd. 1 and 609.52, subd. 3(3)(a) (1994).  
Appellant contends the record contains insufficient evidence to 
support his conviction.  He also argues the trial court erred when it 
admitted into evidence materials to make fictitious identification 
cards that were seized during a search of appellant's home.  In his 
supplemental pro se brief, appellant also argues that this court must 
set aside his conviction because of prosecutorial misconduct, 
ineffective assistance of trial counsel, and because the absence of 
minorities in the jury pool violated his constitutional rights.  We 


	On September 18, 1994, Bonnie Lindberg discovered that 
her purse was missing from her car.  Her purse contained her 
checkbook and identification cards.  On October 3, 1994, a female, 
later identified as Christine Baker, purchased a Pioneer 50-inch 
big-screen television set, Model SD-P5071K, and a four-year 
warranty from the Best Buy store in Rochester using one of 
Lindberg's stolen checks.  The check was written in the amount of 
$2,716.59, which included tax.  According to Lindberg, the 
handwriting and signature on the check were not hers.
	Four Best Buy employees helped Baker load the TV onto 
the top of a yellow van.  Sean Hukriede, a Best Buy loss 
prevention supervisor, identified appellant Brian Lee Nelson as the 
driver of the yellow van.  By stipulation, appellant admitted he was 
at the Best Buy store in Rochester on October 3, 1994, at about 
9:00 p.m. and that he helped Hukriede load a TV into a van outside 
the store.
	Based on his conversation with Baker, Hukriede became 
suspicious of her and appellant.  He wrote down the license 
number on the van and a description of Baker and appellant as they 
drove off.  He verified with a cashier that she had checked Baker's 
identification when she paid for the TV.  At trial, the state 
introduced the check Baker used to pay for the TV and testimony 
showing that marks on the check indicate that the cashier followed 
standard procedures and looked at photo identification when Baker 
purchased the TV using Lindberg's check.
	Within a short time, appellant asked Robert Carlson and 
John Kwakenat if they were interested in buying a 50-inch TV for 
Sharkey's, a new bar and restaurant they were opening.  After some 
negotiations, appellant sold the TV to them for $1,000.  Kwakenat 
and his brother picked up the TV, which was still in the original 
packing materials, from the garage of the house where appellant 
was living.  Kwakenat, his brother, and appellant drove to 
Sharkey's Bar with the TV, unloaded it, and plugged it in.  After 
verifying that the TV was in excellent working order, Kwakenat 
paid appellant $1,000 in cash.
	During the execution of a search warrant at Sharkey's Bar, 
police seized a Pioneer 50-inch big-screen TV, with a model 
number of SD-P5071K.  At trial, appellant stipulated that Exhibit 
14 contained photographs of the TV seized from Sharkey's Bar.
	Carlson and Kwakenat both identified appellant from a 
photo lineup as the person who sold them the TV set; they both 
ultimately pleaded guilty to possessing stolen property.
	Appellant was present when Sgt. Gregory Lind of the St. 
Paul Police Department executed a warrant at appellant's mother's 
home, where appellant resided.  Lind seized pieces of 
identification belonging to more than nine different individuals, a 
loaded Polaroid camera, packages of "Super Glue," a razor blade, a 
blue cloth backdrop, two Polaroid photographs of appellant taken 
against a blue backdrop, five Polaroid photographs of Christine 
Baker taken against a blue backdrop, and another Polaroid 
photograph showing the same outfit Baker was wearing in the 
other photos but with the head cut out of the photograph.  The trial 
court admitted these items as evidence at trial, over the objection 
of appellant.
	In the course of his investigation, Lind also interviewed 
Misty Wandrow, appellant's ex-girlfriend.  Wandrow testified at 
trial that appellant had told her he and Baker had a big-screen TV 
that he was going to sell for $1,000.  She testified that appellant 
had told her that Baker "was in California and she wouldn't be able 
to testify against him."  She testified that appellant told her that he 
would "probably be able to win the case since she [Baker] can't 
	Appellant did not testify at trial, nor did he present any 
evidence.  After deliberating for 63 minutes, the jury found 
appellant guilty as charged.


1.	Appellant contends the record contains insufficient 
evidence to sustain his conviction.  In reviewing a claim of 
sufficiency of the evidence, we are limited to ascertaining whether, 
given the facts in the record and any legitimate inferences that can 
be drawn from them, a jury could reasonably find the defendant 
guilty of the charged offense.  State v. Pierson, 530 N.W.2d 784, 
787 (Minn. 1995).  We view the evidence in the light most 
favorable to the jury's verdict, assuming that the jury believed the 
state's witnesses and disbelieved any evidence to the contrary.  
State v. Atkins, 543 N.W.2d 642, 646 (Minn. 1996).
	First, appellant contends there was not sufficient evidence 
to show that the TV sold to the owners of Sharkey's bar was the 
same TV that Baker stole from Best Buy store with Bonnie 
Lindberg's forged check.  We disagree.  Contrary to appellant's 
claim, the state did not have to prove identification of the TV by 
matching serial numbers.  The record contains enough 
supplementary evidence to sustain the identification of the TV.  
The 50-inch Pioneer TV that Baker and appellant removed from 
Best Buy had the same model number as the 50-inch Pioneer TV 
appellant later sold to Sharkey's owners.  The record contains a 
receipt from Best Buy with the model number and Hukriede's 
identification of appellant and his testimony identifying the TV 
seized from Sharkey's as being the same model as the TV Baker 
and appellant removed from Best Buy.  In addition, the record 
contains evidence that appellant participated with Baker in a 
scheme of using false identification.  The jury had ample evidence 
from which it could find that the TV seized from Sharkey's was the 
same TV stolen from Best Buy and that appellant knew that Baker 
purchased the TV using false identification and a forged check.
	Second, appellant argues that the state failed to prove that 
he possessed the TV or transferred it to the owners of Sharkey's, 
because the conviction was based on the uncorroborated testimony 
of accomplices.
A conviction cannot be had upon the testimony of an 
accomplice, unless it is corroborated by such other 
evidence as tends to convict the defendant of the 
commission of the offense, and the corroboration is 
not sufficient if it merely shows the commission of 
the offense or the circumstances thereof.

Minn. Stat.  634.04 (1994).  The state does not contest appellant's 
claim that the owners of Sharkey's were his accomplices.  Instead, 
the state notes that Misty Wandrow's testimony, combined with the 
testimony of Hukriede, corroborate the accomplice testimony.  We 
	Finally, appellant contends that the state failed to prove that 
he knew or should have known that the TV was stolen.  See Minn. 
Stat.  609.53, subd. 1 (1994) (elements of possessing/transferring 
stolen property include "knowing or having reason to know the 
property was stolen * * *").  We disagree.  By his own admission, 
appellant was at the Best Buy store the night the TV set was stolen. 
 Hukriede positively identified appellant as the individual who 
helped load the stolen TV onto the top of a van and who drove off 
in the van with Baker.  According to Wandrow and the bar owners, 
appellant sold the new $2,700 TV for $1,000.  Finally, the state 
presented evidence indicating Baker and appellant had been 
involved in creating false identification cards at appellant's 
residence.  This record contains sufficient evidence that appellant 
knew or had reason to know that the TV he sold to Sharkey's was 
stolen.  The record contains sufficient evidence to sustain 
appellant's conviction for possession/transfer of stolen property.
2.	Appellant contends the trial court committed reversible 
error when it admitted evidence that he possessed stolen 
identification cards and materials and equipment needed to make 
false identification cards.  He argues that this evidence is not 
relevant and is highly prejudicial.  In his pro se brief, appellant 
argues that this evidence is Spreigl evidence of another crime or 
bad act.
	The trial court determined that the seized evidence was 
relevant to show "a connection between the two of them, 
[appellant and Baker], and again to show guilty knowledge."  
Appellant argues that because he was in a picture "with Baker," the 
jury delivered a verdict of guilty by association.  Appellant has 
mischaracterized the evidence.  No picture exists of appellant and 
Baker together, but instead there were separate identification-type 
Polaroid pictures of appellant and Baker.  Baker's head had been 
cut out of one of her pictures, indicating that it had been used to 
produce a false identification card.  As the trial court noted, this 
evidence was certainly relevant to the issue of whether appellant 
had knowledge that the TV was stolen:
The tie would be the fact that allegedly Christine 
Baker is out there in the company of [appellant], 
allegedly, and she is using a fake ID, and in his 
house, [appellant] * * * has got materials for making 
such fake IDs.

Because the evidence seized from appellant's residence shows that 
he knew Baker and knew of her involvement in the manufacture of 
false identification, the evidence is probative of appellant's 
knowledge that Baker had stolen the TV.  See Minn. R. Evid. 401, 
cmt. (threshold determination of relevance is whether evidence 
tends to prove material fact at issue, tends to make a fact more 
probable, or supports reasonable inference regarding existence of 
material fact).  The probative value of this evidence greatly 
outweighs the danger of any "unfair" prejudicial effect of this 
evidence.  See Minn. R. Evid. 403 (court may exclude relevant 
evidence if its "probative value is substantially outweighed by the 
danger of unfair prejudice").
	We now turn to the Spreigl issue.  Evidence of other 
crimes, wrongs, or acts is generally not admissible to prove the 
character of a defendant or that he acted in conformity with that 
conduct.  Minn. R. Evid. 404(b); State v. Titworth, 255 N.W.2d 
241, 244 (Minn. 1977).
	The trial court determined, inter alia, that the seized 
evidence was not Spreigl evidence, because it was closely linked to 
the crime charged.  Evidence relating to other crimes that the 
defendant may have committed is not considered Spreigl evidence 
if the evidence is "necessarily, but incidentally, part of the 
substantive proof of the [charged] offense."  State v. Roy, 408 
N.W.2d 168, 171 (Minn. App. 1987) (citing State v. Salas, 306 
N.W.2d 832, 836-37 (Minn. 1981)), review denied (Minn. July 22, 
1987).  Here, the evidence includes ID-type pictures of Baker and 
appellant and is probative of appellant's relationship with Baker 
and his knowledge as an accomplice that the TV he helped Baker 
take from Best Buy was stolen, because Baker used a fake ID to 
verify the purchase.  Although we consider this admissibility issue 
a close call, we note that, because the evidence is relevant to 
establish appellant knew the TV was stolen, the evidence also 
meets the test for admission under State v. Spreigl, 272 Minn. 488, 
491, 139 N.W.2d 167, 169 (1965).  The trial court did not abuse its 
discretion in admitting the seized evidence.  See State v. Ture, 353 
N.W.2d 502, 515 (Minn. 1984) (rulings involving the relevancy of 
evidence are generally left to sound discretion of trial court).
3.	In his pro se brief, appellant makes several arguments to 
support a claim that he was denied the effective assistance of 
counsel.  But "the appropriate way to challenge ineffective 
assistance of * * * counsel is to seek a postconviction hearing 
before appeal."  State v. Fratzke, 450 N.W.2d 101, 102 n.3 (Minn. 
1990).  A postconviction hearing develops a record to afford 
proper review of the appellant's claims.  See Harris v. State, 470 
N.W.2d 167, 169 (Minn. App. 1991).  Appellant did not seek 
posttrial relief, but instead seeks to raise this issue for the first time 
on a direct appeal from the judgment of conviction.  The record 
before us does not support appellant's claim.
	To prove ineffective assistance of counsel, appellant must 
show that his counsel's representation "fell below an objective 
standard of reasonableness."  Gates v. State, 398 N.W.2d 558, 561 
(Minn. 1987) (quoting Strickland v. Washington, 466 U.S. 668, 
688, 104 S. Ct. 2052, 2064 (1984)).  Additionally, he must show 
"there is a reasonable probability that, but for counsel's 
unprofessional errors, the result of the proceeding would have been 
different."  Id. (quoting Strickland, 466 U.S. at 694, 104 S. Ct. at 
	Appellant argues that his attorney should have challenged 
the admission of the TV on relevance grounds, because there was 
no proof it was the TV stolen from Best Buy.  He also contends his 
attorney committed unprofessional error when he failed to object 
to Sgt. Lind's characterization of the TV seized from Sharkey's as 
being the TV "stolen" from Best Buy.  These claims have no merit. 
 The record contains documentary evidence and testimony from 
various witnesses demonstrating that the TV seized at Sharkey's 
was the same TV stolen from Best Buy.  In addition, appellant's 
attorney aggressively challenged the connection between the seized 
TV and the TV taken from Best Buy.
	Next, appellant contends his counsel's pretrial preparation 
fell below the standards of reasonableness, because he failed to 
discover that the materials seized from appellant's residence 
included a stolen ID.  Thus, appellant contends that his attorney 
should have challenged the admission of this evidence on grounds 
it was Spreigl evidence of the crime of possession of stolen 
property.  We disagree.  As we concluded above, the stolen TV 
was not Spreigl evidence, because it was closely linked to the 
charged crime.
	Appellant also claims his counsel's representation was 
ineffective and unreasonable, because he allowed a photographic 
lineup into evidence, containing a "mug shot" of appellant from a 
prior crime.  He contends the lineup prejudiced the jury against 
him.  But appellant's attorney later objected and had the lineup 
removed and excluded from the evidence sent with the jury during 
their deliberations.  Appellant's mere allegation that the line-up 
photographs were on the prosecutor's table and within the view of 
the jury during the trial does not demonstrate actual prejudicial 
effect.  See Harris, 470 N.W.2d at 169 (postconviction hearing 
develops a record to afford proper review).  Further, with the 
overwhelming evidence of guilt here, appellant has failed to 
demonstrate a "reasonable probability that, but for counsel's 
unprofessional errors, the result of the proceeding would have been 
different."  Gates, 398 N.W.2d at 561 (quoting Strickland, 466 
U.S. at 694, 104 S. Ct. at 2068)).
4.	Appellant contends that the prosecutor knew that the TV 
purchased from Best Buy was not the same TV seized from 
Sharkey's, but nevertheless presented it as the same TV.  This 
argument appears to refer to the fact that the prosecutor did not 
identify the TV by use of the serial number.  The record contains 
no evidence that the TV from Best Buy had a different serial 
number than the one seized from Sharkey's or that the prosecutor 
otherwise suppressed evidence that would support appellant's 
claim.  It was appropriate for the prosecutor to use the make and 
model number of the TV, in addition to other facts, to show that 
appellant received the TV Baker had stolen from Best Buy and 
within weeks sold it to Sharkey's for a ridiculously low price.  
Appellant's claim of prosecutorial misconduct is without merit.
5.	Finally, appellant, who is Hispanic and was tried in Anoka 
County, contends that the absence of minorities in the jury pool 
violated his constitutional rights.  He has presented no other facts 
to support his claim.  This evidence is insufficient to meet 
appellant's burden to show a prima facie case of "systematic 
exclusion" of Hispanics from the jury pool.  See State v. Williams, 
525 N.W.2d 538, 542-43 (Minn. 1994) (holding individual alleging 
state impermissibly excluded members of his race from jury pool 
must demonstrate "the underrepresentation was the result of a 
`systematic exclusion' of the group in question from the jury 
selection process" for jury panel after panel "over a significant 
period of time").