This opinion will be unpublished and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

C7-96-2004

State of Minnesota,

Respondent,

vs.

Adam Eli-Teu Barnes,

Appellant.

Filed August 19, 1997

Affirmed

Amundson, Judge

Hennepin County District Court

File No. 96012482

Hubert H. Humphrey III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101, Michael O. Freeman, Hennepin County Attorney, Jean E. Burdorf, Assistant Hennepin County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for Respondent)

John M. Stuart, State Public Defender, Bradford S. Delapena, Assistant State Public Defender, 2829 University Avenue Southeast, Suite 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

AMUNDSON, Judge

Appellant Adam Eli-Teu Barnes challenges his convictions, based on the district court's evidentiary rulings and the sufficiency of the evidence. We affirm.

FACTS

In the early morning of February 8, 1996, a group of five friends, including Larry Charette; Charette's girlfriend Maria Barrientez; and Charette's friend, Damian Wakefield; left a bar and sought to buy marijuana. They first went to the home of a friend, Stephanie Thompson. As Charette approached the home, he noticed appellant Eli-Teu Barnes on the porch with Thompson. "Real bad blood" existed between Charette and Barnes; Charette was a close friend of the man accused of killing Barnes's "partner," Matt Meeks. Thompson did not have marijuana to sell Charette, but before Charette left, words were exchanged between Charette and Barnes, and Charette either showed or pulled a gun from his pocket. The altercation ended without incident; Charette returned to the car, and the group left. After unsuccessfully trying to buy marijuana at a second home, they went to Charette's uncle's house, and parked a short distance from the house. Within moments after they stopped, a tan Monte Carlo arrived at the scene. A young Native American man leaned out the Monte Carlo's passenger-side window, and, as the Monte Carlo passed by the group's car, the man fired a handgun several times. Bullets hit the license plate and shattered the driver's-side windows. A bullet struck Wakefield's hand as he sat behind the driver's seat. The Monte Carlo sped off after the shots were fired.

In subsequent police interviews, Charette positively identified Barnes as the person driving the Monte Carlo, but he could not identify the shooter. Barrientez positively identified the Monte Carlo as Barnes's car.

Barnes was arrested and gave a statement to the police. He confirmed that he had been at the Thompson residence with his roommates, Randy and Ron Cloud. Barnes also confirmed that he had an altercation there with Charette, and that during the altercation, he saw something in Charette's hand that he believed was a gun. Barnes claimed that after Charette left, he and Randy drove Barnes's car, a tan Monte Carlo, to the Bloomington apartment of his best friend, Chris Keys. Barnes said they stayed at Keys's apartment for an hour before returning to the Thompson residence.

The police interviewed Keys, who told them that Barnes was at his apartment from around 11:05 p.m. until about 12:05 a.m. that night, which was earlier than either the shooting or the altercation with Charette at the Thompson home. Thompson and her mother gave statements to the police, both indicating that Barnes left their house with Randy Cloud within five minutes after the altercation with Charette and returned 20 to 30 minutes later. Stephanie Thompson recanted these statements at trial.

Barnes presented an alibi defense at trial. He testified that while he was on the Thompsons' porch, Charette walked up to the house and asked Stephanie if she had any marijuana. According to Barnes, before he could offer to sell Charette one of the "dime bags" he had, Charette turned to him, pulled out a gun, and said, "Motherf-----, don't be talking to me." Barnes testified that he turned and ran into the house, leaving Stephanie on the porch with Charette, and that he and Randy Cloud left out of fear that Charette would return and shoot up his car or the Thompsons' house. Barnes told the jury that at the time of the shooting, he was at Keys's apartment. Barnes denied that there was any reason for animosity between him and Charette, claiming that Charette simply had an unfounded vendetta against him.

The jury found Barnes guilty of four counts of attempted second-degree murder, four counts of second-degree assault, and one count of drive-by shooting. Barnes was sentenced to concurrent terms of 163 months on each of the four counts of second-degree attempted murder; the district court dismissed the four counts of second-degree assault and the one count of drive-by shooting. This appeal followed.

D E C I S I O N

I. Bullet Evidence

Rulings on evidentiary matters generally rest within the sound discretion of the district court. If a defendant claims that the district court erred in admitting evidence, the defendant has the burden of showing both the error and the prejudice resulting from the error. State v. Loebach, 310 N.W.2d 58, 64 (Minn. 1981). "A reversal is warranted only when the error substantially influences the jury to convict." Id.

The bullet found in Wakefield's hand was excluded by the district court because of a defect in the foundation for the evidence. Barnes later moved to prevent a detective from referring to .22- and .25-caliber bullets seized during the execution of a search warrant at the house where Barnes lived with Randy and Ron Cloud. Barnes argued that, without the bullet from Wakefield's hand, the bullets found in his house were irrelevant. The state argued that, even without a gun or bullet, the bullets provided circumstantial evidence of Barnes's guilt and should be considered by the jury. The district court deferred ruling until the detective testified. Barnes renewed his objection during the detective's testimony, arguing that the bullets were prejudicial because they could not be conclusively linked to Barnes or the shooting. The district court denied Barnes's motion, stating:

I think you [defense counsel] can point out on cross examination that [Barnes] shares a house and they haven't been attached to him specifically. It's remotely relevant. It's also remotely prejudicial, remotely, so I'm going to let it in and let the jury decide what they want to do with it.

The detective testified that he seized the bullets in a stairwell of the house. When cross-examined by defense counsel, the detective admitted that there was no way to prove the bullets belonged to Barnes or that they were linked to the shooting. The lack of an absolute connection between proffered evidence and an alleged crime does not bar admission. State v. Olson, 436 N.W.2d 817, 820 (Minn. App. 1989), review denied (Minn. Apr. 26, 1989), cert. denied, Olson v. Minnesota, 493 U.S. 862, 110 S. Ct. 176 (1989).

Relevant evidence is evidence that "logically or reasonably tends to prove or disprove a material fact in issue, or tends to make such a fact more or less probable." State v. Horning, 535 N.W.2d 296, 298 (Minn. 1995). The presence of small caliber bullets in Barnes's house shows that he had the means to commit the crime. The error, if any, in admitting testimony regarding the bullets found in Barnes's home was in any event harmless. Other evidence of Barnes's guilt was strong. The state presented evidence of motive, opportunity, and identity. Moreover, Barnes's defense lacked credibility. The record established that the shooting occurred shortly after 1:10 a.m. At trial, Barnes presented what amounted to two inconsistent alibis. He testified that he and Randy Cloud left the Thompsons' in his car just after Charette left and that he was at Keys's apartment at the time of the shooting. Keys, however, placed Barnes at his apartment more than an hour earlier, not at the time of the shooting. Two of Barnes's other witnesses, Stephanie Thompson and Ron Cloud, claimed that Barnes was still at the Thompsons' house when the shooting occurred. The jury appears to have assessed this testimony as an after-the-fact attempt to create an alibi for a friend.

The state provides two reasons for claiming that Barnes was not unfairly prejudiced by evidence of the bullets seized at Barnes's residence. First, the state did not suggest at trial that Barnes carried a gun or that he was the shooter. The state's theory was that Barnes drove the car and that Randy Cloud was the shooter. Second, the state argues that defense counsel effectively minimized any potential prejudice through cross-examination. The detective admitted that there was no conclusive link between the bullets and the shooting and that there was no way of proving the bullets belonged to Barnes.

Even assuming error, the record demonstrates that the error did not play a substantial role in the jury's verdict. Loebach, 310 N.W.2d at 64. The focus of the trial was the credibility of witnesses, not the strength of the state's physical evidence. The jury's verdict shows that they believed the state's witnesses and disbelieved Barnes. The verdict is supported by more than ample evidence.

II. Barnes's Pro Se Brief

Barnes raises primarily two issues in his brief: the insufficiency of the evidence and ineffective assistance of counsel. When reviewing a sufficiency of the evidence claim, this court is limited to an analysis of the record to determine whether the evidence, viewed in the light most favorable to the conviction, is sufficient to sustain the verdict. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). This court is to assume that the jury believed the state's witnesses and disbelieved any contrary evidence. State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989). Reviewing the evidence in a manner favorable to the verdict is particularly important where the resolution of the case depends on conflicting testimony, because the weighing of the credibility of witnesses is the exclusive function of the jury. State v. Pieschke, 295 N.W.2d 580, 584 (Minn. 1980).

As the guilty verdicts demonstrate, the jury found the state's witness more credible than Barnes's witness. Barnes provides no compelling reason to second-guess the jury's credibility determinations.

Barnes also claims ineffective assistance of counsel. To establish that the trial counsel was ineffective, an appellant must show that: (1) counsel's performance "fell below an objective standard of reasonableness"; and (2) "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S. Ct. 2052, 2064, 2068 (1984). There is a strong presumption that an attorney's performance falls within the wide range of "reasonable professional assistance." State v. Jones, 392 N.W.2d 224, 236 (Minn. 1986).

Barnes claims that his attorney withheld a statement from Rodrick MacCharles and lied to him about the whereabouts of Jessica Harron. Barnes fails, however, to explain the relevance of either person's testimony, had they been called to testify at the trial. In any event, an ineffective assistance of counsel claim is more appropriately raised in a post-conviction proceeding than in a direct appeal. See State v. Harris, 407 N.W.2d 456, 462 (Minn. App. 1987), review denied (Minn. July 31, 1987).

Affirmed.