This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C0-96-1003

State of Minnesota,

Respondent,

vs.

Paul DeLisi,

Appellant.

Filed December 24, 1996

Affirmed

Lansing, Judge

Ramsey County District Court

File No. K6953517

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

Susan E. Gaertner, Ramsey County Attorney, Jessica S. McConaughey, Assistant County Attorney, 50 W. Kellogg Boulevard, Suite 315, St. Paul, MN 55102 (for Respondent)

Bradford Colbert, Assistant State Public Defender, 875 Summit Avenue, LEC 304, St. Paul, MN 55105 (for Appellant)

Considered and decided by Huspeni, Presiding Judge, Lansing, Judge, and Foley, Judge.[*]

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

LANSING, Judge

This appeal challenges the sufficiency of the evidence for convictions of assault in the second degree, Minn. Stat. § 609.222, subd. 1 (1994), and aiding and abetting assault in the first degree, Minn. Stat. § 609.05, subd. 1, § 609.221 (1994). Because the record contains evidence sufficient to support the jury's finding of guilt beyond a reasonable doubt, we affirm.

FACTS

A jury convicted Paul DeLisi of second degree assault and aiding and abetting assault in the first degree. His convictions stem from events on October 28, 1995, at the Dos Amigos bar in St. Paul. That evening DeLisi, his brother, and a few other friends got into a fist fight with other bar patrons in the bar parking lot. After the fight was broken up, DeLisi made verbal threats and then left with his brother and friends in a dark-colored Mustang.

About a half hour after the fight, Timothy Greeninger, a bar patron, exited the bar and was confronted in the parking lot by a man with a gun. The man held the gun up to Greeninger's face and pulled the trigger, but the gun did not fire. At trial Greeninger identified DeLisi as the man who assaulted him in the parking lot.

After the assault Greeninger ran back into the bar and yelled that there was someone outside with a gun. Moments later a man entered the bar with a gun raised panning it back and forth and fired twice, but no bullet was discharged. Joseph Tschida, an off-duty sheriff's deputy who was in the bar, identified DeLisi as the man who entered the bar with the gun.

When the man left the bar, a number of patrons, including Richard Faulhaber, went outside as well. Faulhaber was shot as he walked along the sidewalk next to the bar. He testified that he was shot by DeLisi's brother who was sitting in the passenger seat of a dark-colored Mustang or Omni as the car drove by him.

The jury found DeLisi guilty of second degree assault against Greeninger and of aiding and abetting first degree assault against Faulhaber. DeLisi appeals, asserting the evidence is insufficient to support his convictions.

D E C I S I O N

On review we determine whether, given the facts in the record and the legitimate inferences which may be drawn from those facts, a jury could reasonably conclude that the defendant was guilty of the offense charged. State v. Merrill, 274 N.W.2d 99, 111 (Minn. 1978). We view evidence in a light most favorable to the state and assume that the jury believed the evidence supporting the conviction and disbelieved any evidence to the contrary. State v. Pieschke, 295 N.W.2d 580, 584 (Minn. 1980); Merrill, 274 N.W.2d at 111. The credibility of witness testimony and the weight given to the evidence are issues for the jury. State v. Bias, 419 N.W.2d 480, 484 (Minn. 1988).

Second degree assault occurs when one person "assaults another with a dangerous weapon." Minn. Stat. § 609.222, subd. 1 (1994). The state presented both direct and circumstantial evidence that DeLisi assaulted Greeninger with a gun.

Greeninger himself identified DeLisi in the courtroom as the person who assaulted him. The factors for evaluating the identification of a perpetrator include the witness's opportunity to observe him at the time of the crime, the length of that opportunity, the witness's stress at the time of the observation, the lapse of time between the crime and the identification, and the effect of any police identification procedures. State v. Burch, 284 Minn. 300, 315-16, 170 N.W.2d 543, 553-54 (1969). It is undisputed that Greeninger had a clear view of his assailant. The assault happened quickly, and Greeninger was undoubtedly under considerable stress at the moment of the assault, but his ability to recall the assailant's identity is a question for the jury. "The weighing of the credibility of witnesses, including eyewitness testimony, lies within the exclusive province of the jury." State v. McAdory, 543 N.W.2d 692, 696 (Minn. App. 1996) (citing Pieschke, 295 N.W.2d at 584). When requested, the trial court may instruct the jury on the factors and "caution against automatic acceptance" of identifications. Burch, 284 Minn. at 315, 170 N.W.2d at 553. But DeLisi requested no special instructions on identification.

In addition to Greeninger's identification, the state provided circumstantial evidence suggesting that DeLisi was the person who assaulted Greeninger. After Greeninger was assaulted, he ran back into the bar screaming that someone had a gun. The bar owner testified that someone then entered the bar holding a gun. And a separate witness, a Ramsey County sheriff's deputy, testified that the person holding the gun was Paul DeLisi.

Viewing both the direct and circumstantial evidence in a light most favorable to the state, we conclude that the jury could have found beyond a reasonable doubt that DeLisi assaulted Greeninger.

A person may be criminally liable for the crime of another when he "intentionally aids, advises, hires, counsels, or conspires with or otherwise procures the other to commit the crime." Minn. Stat. § 609.05, subd. 1 (1994). Assault in the first degree is committed when a person "assaults another and inflicts great bodily harm." Minn. Stat. § 609.221 (1994). DeLisi does not challenge the state's evidence proving the elements of first degree assault against Faulhaber, but rather he asserts that the state has failed to show beyond a reasonable doubt that DeLisi intentionally aided and abetted his brother in committing the assault.

A person can be convicted of aiding and abetting "'without actively participating in the overt act constituting the primary offense.'" In re Welfare of M.D.S., 345 N.W.2d 723, 733 (Minn. 1984) (quoting State v. Strimling, 265 N.W.2d 423, 429 (Minn. 1978)). "[C]onduct before and after the crime can be highly relevant and useful in determining whether defendant aided in the commission of a crime." State v. Gruber, 264 N.W.2d 812, 819 (Minn. 1978). To maintain a conviction for aiding and abetting, the state need prove "only 'some knowing role in the commission of the crime' by a defendant who 'takes no steps to thwart its completion.'" State v. Merrill, 428 N.W.2d 361, 367 (Minn. 1988) (quoting State v. Jones, 347 N.W.2d 796, 800 (Minn. 1984)). Although the offense of aiding and abetting a crime may be proved through circumstantial evidence, State v. Ostrem, 535 N.W.2d 916, 923 (Minn. 1995), a conviction based on circumstantial evidence merits "stricter scrutiny" on review. Bias, 419 N.W.2d at 484. "The conviction may stand only where the circumstances form 'a complete chain which, in light of the evidence as a whole, leads so directly to the guilt of the accused as to exclude, beyond a reasonable doubt, any reasonable inference other than that of guilt.'" Id. (quoting State v. Wahlberg, 296 N.W.2d 408, 411 (Minn. 1980)).

DeLisi argues that his mere presence with his brother before the shooting is not sufficient to support his conviction. See State v. Ulvinen, 313 N.W.2d 425, 428 (Minn. 1981) (requiring more than "mere inaction" to sustain conviction for aiding and abetting). But the state's evidence goes well beyond DeLisi's mere presence prior to the shooting, and the record contains ample evidence from which the jury could reasonably infer that Paul DeLisi aided and abetted his brother in assaulting Faulhaber: testimony placing DeLisi at the bar with a gun just minutes before the shooting; evidence that the car from which Faulhaber was shot was the same type of car, a dark-colored Mustang, that DeLisi and his brother had driven earlier in the evening and that DeLisi's brother owns; and evidence that DeLisi and his brother had fought previously that evening with Faulhaber and others at the bar, and that DeLisi had made threats to Faulhaber and others after the fight.

From these facts the jury could have reasonably inferred that DeLisi provided his brother with the gun, provided him with an escape, or provided him with the ire and motive to commit the shooting. There is no evidence suggesting any alternative explanation of the circumstances. Taken as a whole the evidence suggests no rational theory inconsistent with guilt. See Wahlberg, 296 N.W.2d at 411; see also Ostrem, 535 N.W.2d at 923 ("[T]o succeed in a challenge to a verdict based on circumstantial evidence, a convicted person must point to evidence in the record that is consistent with a rational theory other than guilt.").

Because competent evidence supports his convictions and because there is no evidence suggesting a rational theory inconsistent with guilt based on these circumstances, the jury could have reasonably concluded that DeLisi was guilty of the offenses charged.

Affirmed.

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