This opinion will be unpublished and 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 
C2-95-1316 
 
 
State of Minnesota, 
Respondent, 
 
vs. 
 
Frederick Floyd Graham, 
Appellant. 
 
 
Filed August 13, 1996 
Affirmed in part and reversed in part 
Schultz, Judge* 
 
 
Hennepin County District Court 
File No. 94-09-7646 
 
 
Hubert H. Humphrey, III, Attorney General, 1400 NCL Tower, 445  
Minnesota Street, St. Paul, MN 55101; Michael O. Freeman,  
Hennepin County Attorney, Michael Richardson, Assistant Hennepin  
County Attorney, C-2000 Government Center, Minneapolis, MN  
55487 (for Respondent) 
 
John M. Stuart, State Public Defender, Sharon E. Jacks, Assistant  
State Public Defender, 2829 University Avenue, Suite 600,  
Minneapolis, MN 55414 (for Appellant) 
 
 
	Considered and decided by Norton, Presiding Judge,  
Kalitowski, Judge, and Schultz, Judge. 
 
U N P U B L I S H E D   O P I N I O N 
 
SCHULTZ, Judge 
	Frederick Graham challenges his judgment of conviction,  
arguing that the trial court abused its discretion in admitting evidence  
of an out-of-court identification, testimony by a police officer and a  
probation officer, and evidence of a previous crime.  Graham also  
challenges the trial court's order of restitution to a witness.  We affirm  
in part and reverse in part. 
 
FACTS 
 
	At 8:30 p.m. on November 5, 1994, a man entered an ICO  
convenience store in Minneapolis.  He asked where the restroom was  
located, and, after a few minutes, he exited the restroom and began to  
look around the store.  When the clerk turned around, the man was in  
front of him and wielding a covered object that the clerk believed to  
be a gun.  The man asked the clerk for the money from the till and the  
money from the safe in the floor behind the counter.  The man told  
the clerk that if he pushed any buttons he would be killed.  As the  
man exited the store, he again told the clerk not to push any buttons  
or call the police.  Once the man was outside the store, he took off his  
sunglasses and looked back at the clerk. 
	When the police arrived at the scene, the clerk described the  
perpetrator as "approximately 30 years old, 5 foot-8, that he was a  
black male, that he had black hair, approximately one-half inch in  
length, that it was curly, and that he also had a mustache."  The first  
time he gave a description, the clerk also said he thought the man was  
wearing a mask; however, he later changed the description from a  
mask to sunglasses.   
	While at the store, the officers removed a videotape from the  
store's surveillance system, which had been operating during the  
robbery.  The investigating officer watched the tape, and although it  
is undisputed that the images on the tape were barely discernible, the  
officer believed that the image on the tape resembled an individual he  
had arrested for robbing that same location six years before.  That  
individual was appellant Frederick Graham. 
	The officer, after learning that Graham was no longer in  
prison, contacted Graham's probation officer and told him that he was  
investigating a robbery and believed that the individual on the  
surveillance tape was Graham.  The probation officer watched the  
tape and agreed that the person on the tape walked and talked like  
Graham.   
	The officer obtained a search warrant and executed it at the  
home of Graham's friend, where Graham was temporarily living.   
During the search, the officers found a jacket resembling the one  
depicted in the surveillance video and a pair of sunglasses with the  
tags still on them. 
	After Graham's arrest, the clerk was asked to view a lineup.   
The officer testified that he spoke with the clerk after the lineup, and  
the clerk told him that he had not picked anyone from the lineup but  
that he had eliminated all but two individuals.  The officer testified  
that the clerk then told him which man he thought it was.  The officer  
showed the clerk the jacket that had been seized and the surveillance  
video.  The clerk testified that after the lineup, he went to an office,  
where he saw the jacket that had been seized in the search.  After  
seeing the jacket, the clerk believed that the perpetrator must have  
been one of the men in the lineup.  The clerk then viewed the  
videotape and saw an angle of Graham he had not been able to see at  
the time of the incident.  After viewing the videotape, the clerk stated  
he was certain it was Graham. 
	During the pretrial hearing, the trial court stated that it would  
not be helpful to have the officer testify that he recognized Graham  
from the video.  The court did, however, decide to allow the  
probation officer to testify that the way the person on the video  
walked and talked was familiar to him and seemed like Graham. 
	  The court also ruled that neither the state nor the defense  
would be able to submit evidence regarding the clerk's inability to  
make an in-court identification.  The court went on to decide that the  
testimony regarding the lineup procedures would be admitted, along  
with the Spreigl evidence of one of the previous robberies.  The court  
ruled that its probative value outweighed its prejudice.     
	In light of its Spreigl decisions, the court changed its earlier  
ruling on the testimony regarding Graham's resemblance to the  
person on the tape.  The officer and probation officer would be  
allowed to testify that the person on the tape was familiar to them, but  
they could not state that it was "one in the same person as the  
defendant."    	 
	Graham was convicted and sentenced to 111 months.  He was  
also ordered to pay restitution to the convenience store and the clerk.   
This appeal followed. 
 
D E C I S I O N 
 
	1.	Lineup. 
	Graham contends that he is entitled to a new trial because the  
trial court admitted evidence of an out-of-court identification that was  
preceded by an impermissibly suggestive lineup procedure. 
	"Rulings on evidentiary matters rest within the sound  
discretion of the trial court."  Caldwell v. State, 347 N.W.2d 824, 826  
(Minn. App. 1984) (citation omitted).  In reviewing identification  
procedures, this court must determine whether the procedures "used  
were so impermissibly suggestive as to create a `very substantial  
likelihood of irreparable misidentification.'"  State v. Spann, 287  
N.W.2d 406, 407 (Minn. 1979) (citations omitted). 
	Graham argues that the lineup was impermissibly suggestive  
because the witness was only able to identify Graham after viewing   
the store's surveillance video and the jacket worn by the perpetrator.   
Graham further contends that the likelihood of misidentification is  
supported by the inability of the witness to identify Graham in court-- 
he was sitting at the defense table and was the only African American  
male in the room. 
	In determining whether an eyewitness identification is  
impermissibly suggestive, "a two-part test is applied."  State v.  
Ostrem, 535 N.W.2d 916, 921 (Minn. 1995).  "The first inquiry  
focuses on whether the procedure was unnecessarily suggestive."  Id.  
 This determination is based on whether the defendant was "unfairly  
singled out for identification."  Id.  Under the second prong, the  
evidence may still come in, however, if "the totality of the  
circumstances establishes that the evidence was reliable."  Id.  "If the  
totality of the circumstances shows the witness' identification has  
adequate independent origin, it is considered to be reliable despite the  
suggestive procedure."  Id. 
	Although during the pretrial hearing the clerk testified that he  
had made an attempt not to look too intently at the perpetrator, he was  
able to see the man's lips and chin.  He also testified that he had  
narrowed it down to two of the men in the lineup, and after viewing  
the surveillance tape, he positively identified Graham.  He stated that  
his identification was based on the man's lips.  As the trial court  
noted, however, the image on the surveillance tape was barely  
discernible and thus it is not likely that viewing the tape created a  
substantial likelihood of irreparable misidentification.   
	Similarly, the clerk testified that he was not sure if he viewed  
the jacket before or after viewing the video, and, although he stated  
that seeing the jacket reinforced his identification of Graham, there is  
no indication that the clerk was told who the jacket belonged to.  See  
State v. Porter, 411 N.W.2d 187, 190 (Minn. App. 1987) (holding  
that viewing items seized pursuant to a search warrant could have no  
effect on the identification because witness was not told who the  
items belonged to). 
	We conclude that the circumstances of the lineup did not  
create a substantial likelihood of irreparable misidentification and  
thus were not impermissibly suggestive.  In any event, such evidence  
was appropriately presented to the jury to weigh the credibility of the  
identification procedures.  See State v. Jackson, 365 N.W.2d 777,  
779 (Minn. App. 1985) ("`Juries are not so susceptible that they  
cannot measure intelligently the weight of identification testimony  
that has some questionable feature.'") (quoting  Manson v.  
Brathwaite, 432 U.S. 98, 116, 97 S. Ct. 2243, 2254 (1977)). 
	2.	Testimony of police officer and probation officer. 
	Graham contends that the trial court erred in admitting the  
testimony of the sales clerk, the police officer, and the probation  
officer that the person they saw on the surveillance videotape  
resembled Graham. 
	The sales clerk was allowed to testify about the videotape as  
part of his explanation of the lineup procedure.  Thus, Graham's  
argument about the clerk's opinion being improper is not persuasive. 
	With regard to the police officer and the probation officer, the  
trial court ruled that the probative value of this testimony outweighed  
the potential for prejudice because the court did not believe that a jury  
would find it very credible considering the poor quality of the tape.   
Both witnesses had personal knowledge of Graham and his  
mannerisms, and, considering the poor quality of the tape, such  
testimony would be helpful to the jury.  Further, the probation  
officer's occupation was not revealed to the jury, in an attempt to  
avoid prejudice.  Because the trial court made every effort to  
minimize the potential for prejudice, we find that the admission of the  
testimony of the police officer and the probation officer was not an  
abuse of discretion. 
 
 
	3.	Evidence of previous robbery. 
	Graham contends that the trial court erred in admitting  
evidence of a previous robbery because the crimes were not similar  
enough to establish identity.  In addition, Graham argues that if the  
evidence was relevant, it was prejudicial and should have been  
excluded. 
	"Whether the probative value of the convictions outweighs  
their prejudicial effect is a matter left to the discretion of the trial  
court."  State v. Graham, 371 N.W.2d 204, 208 (Minn. 1985).  "The  
trial court's decision will not be overturned absent a clear abuse of  
discretion."  Id. at 209. 
Evidence of another crime * * * may * * * be admissible for *  
* * proof of motive, opportunity, intent, preparation, plan,  
knowledge, identity, or absence of mistake or accident. 
Minn. R. Evid. 404 (b). 
	When determining whether to admit the evidence, 
the trial court should engage in a balancing of factors such as  
the relevance or probative value of the evidence, the need for  
the evidence, and the danger that the evidence will be used by  
the jury for an improper purpose, or that the evidence will  
create unfair prejudice pursuant to Minn. R. Evid. 403. 
State v. Bolte, 530 N.W.2d 191, 197 (Minn. 1995) (citation &  
footnotes omitted). 
	In weighing the probative value against the potential for unfair  
prejudice, the trial court must consider whether the evidence is  
necessary to the state's case.  Evidence of other crimes is admissible  
only if "`the direct or circumstantial evidence of defendant's identity  
is otherwise weak or inadequate, and * * * it is necessary to support  
the state's burden of proof.'"  State v. DeWald, 464 N.W.2d 500, 504  
(Minn. 1991) (quoting State v. Billstrom, 276 Minn. 174, 178, 149  
N.W.2d 281, 284 (1967)). 
	In determining whether the offered evidence is relevant, the  
trial court should "focus on the closeness of the relationship between  
the other crimes and the charged crimes in terms of time, place and  
modus operandi."  Bolte, 530 N.W.2d at 198.   
	It is difficult to dispute the fact that the state's identity  
evidence was not particularly strong.  The inquiry then must focus on  
whether the evidence was relevant and whether is was prejudicial. 
	The record indicates that in both robberies the perpetrator  
carried a gun, wanted the money from the floor safe, told the clerk not  
to push any buttons, and both robberies occurred at the same store.  In  
addition, the clerk testified that the general public was not aware of  
the floor safe, which is visible from only one angle of the opening of  
the counter.  The crimes were sufficiently similar, and the evidence  
was necessary to support the state's burden of proof.  Thus, the trial  
court did not abuse its discretion in admitting the Spriegl evidence. 
	4.	Restitution. 
	Graham contends that the trial court erred in ordering that he  
pay $100 restitution to the sales clerk, who claimed that he had to  
take three days of vacation to testify.  Graham contends that, as a  
witness, the clerk was entitled to compensation in the form of witness  
fees. 
	By statute, witnesses are paid $20 for each day in court, as  
well as mileage for their travel to the courthouse.  Minn. Stat.   
357.22 (1994).  In criminal cases, witnesses also receive "expenses  
incurred for meals, loss of wages and child care, not to exceed $60  
per day."  Minn. Stat.  357.24 (1994).  Thus, under the statutes, the  
clerk was entitled to receive $80 per day, plus mileage and meal  
expenses.  The victim of this crime was ICO, the store that was  
robbed.  The clerk was a witness.  Under the circumstances of this  
case, we find it would have been more appropriate for the clerk to be  
reimbursed his witness fees from the county treasury.  Thus, we  
reverse the trial court's order of restitution to the clerk. 
	Affirmed in part and reversed in part. 
 
 
     * Retired judge of the district court, serving as judge of the Minnesota Court of  
Appeals by appointment pursuant to Minn. Const. art. VI,  10.