This opinion will be unpublished and

may not be cited except as provided by

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




State of Minnesota,



Inocente Lopez-Solis,


Filed January 13, 1998


Davies, Judge

Rice County District Court

File No. KX9649

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

Jeffrey D. Thompson, Rice County Attorney, Courthouse, 218 N.W. Third St., Faribault, MN 55021 (for respondent)

John M. Stuart, State Public Defender, Sharon E. Jacks, Assistant State Public Defender, 2829 University Ave. S.E., Suite 600, Minneapolis, MN 55414 (for appellant)

Considered and decided by Davies, Presiding Judge, Lansing, Judge, and Holtan, Judge.*


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



Appellant challenges his conviction of second-degree intentional murder. We affirm.


On the night of July 27, 1995, the victim, Francisco Fernando Victorino Garcia (Francisco), and his brother, Luis Victorino Garcia (Luis), were staying at the apartment of Salvador Osorio Beltran. When they got into Beltran's car to go to work, a group of men drinking beer by the apartment garages told Beltran to turn down the car headlights. One of the group, appellant Inocente Lopez-Solis, approached the car and began arguing with Beltran.

Francisco joined in the argument and a fight ensued. The fight lasted until appellant was defeated and ran away. As Francisco and Luis were walking back down the apartment stairs after cleaning up, they met appellant. Appellant drew a gun and shot Francisco. Francisco said, "He got me," and fell on appellant. The two men fell together backwards down the stairs. More shots were fired. Luis eventually was able to grab the gun and throw it aside. Appellant then ran away.

At trial, police officers testified that both Beltran and Luis positively identified appellant in a photo lineup. Luis testified that a window had provided him with enough light to see appellant on the stairs. An acquaintance of appellant, who was present the night of the shooting, testified that he saw appellant enter the building, heard gun shots, and saw appellant flee.

A firearms examiner testified that markings on the bullets recovered from the crime scene and those removed from Francisco's body were consistent with having been fired from a gun found at the apartment building. He also testified that the chance of accidental discharge of the gun was unlikely, given its "heavy" trigger pull.

Appellant did not testify and called no witnesses. The jury found appellant guilty of second-degree intentional murder and second-degree felony murder. The trial court ordered judgment for conviction of second-degree intentional murder and sentenced appellant to an executed prison term of 348 months (29 years). The court also ordered that appellant pay restitution and the reasonable costs of prosecution.


I. Sufficiency of Evidence

Where there is a challenge to the sufficiency of the evidence, our review on appeal is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in a light most favorable to the conviction, was sufficient to permit the jurors to reach the verdict which they did.

State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).

On appeal, appellant argues that the evidence does not support the jury's second-degree intentional murder verdict. Specifically, he contends the state failed to present evidence proving beyond a reasonable doubt that he intended to cause Francisco's death.

Because intent is a state of mind, it is provable "only by inferences drawn from a person's words or actions in light of all the surrounding circumstances." State v. Boitnott, 443 N.W.2d 527, 531 (Minn. 1989). It is the duty of the jury to draw those inferences and make that determination. See Webb, 440 N.W.2d at 430 (jury normally in best position to evaluate circumstantial evidence); State v. Anderson, 379 N.W.2d 70, 75 (Minn. 1985) (despite stricter standard of review raised by conviction based on circumstantial evidence, jury still in best position to evaluate circumstantial evidence). Thus, the question before us is whether, based on the evidence at trial, the jury could have concluded beyond a reasonable doubt that appellant intended to kill Francisco. Boitnott, 443 N.W.2d at 531; see also Anderson, 379 N.W.2d at 78 (evidence need not exclude all possibility that defendant is innocent; evidence must only make theory of innocence unreasonable).

A jury, evaluating the facts and circumstances of this case, could have concluded beyond a reasonable doubt that appellant intended to cause Francisco's death. After losing the fight with Francisco, appellant went to get a loaded gun. From these preparations, the jury could reasonably infer an intent to cause death before the actual confrontation. See Boitnott, 443 N.W.2d at 531 (intent to kill supported by defendant's preparations, which included taking gun and ensuring it was loaded) (citing State v. Campbell, 281 Minn. 1, 13, 161 N.W.2d 47, 55 (1968)). Appellant fled the state and was arrested in Texas five months later. The jury could have viewed appellant's flight as evidence of guilt. See State v. Bias, 419 N.W.2d 480, 485 (Minn. 1988) (jury may consider flight as suggesting consciousness of guilt).

Appellant, in his pro se supplemental brief, contends that inconsistencies in the testimony of witnesses render the evidence insufficient to prove intent. But the testimony of the witnesses, taken as a whole, was consistent and was corroborated by the physical evidence presented at trial. Further, if inconsistencies in testimony exist, it is the province of the jury to evaluate those inconsistencies. State v. Blair, 402 N.W.2d 154, 158 (Minn. App. 1987). There is no reason to reject the jury's verdict.

II. Self Defense

Appellant, in his pro se brief, maintains that this court must consider the issue of self defense. But appellant did not raise a self-defense claim at trial and an issue not raised in the trial court generally cannot be considered for the first time on appeal. Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996); State v. Sorenson, 441 N.W.2d 455, 457 (Minn. 1989); Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988).

III. Photo Identification

Appellant, in his pro se brief, also claims that his due process rights were violated when evidence of a second photo lineup was introduced at trial. The second photo lineup followed a photo lineup that included a photo of appellant that was several years old and showed him clean shaven and with short hair. When this first lineup was shown to Luis and Beltran, less than 24 yours after the shooting, neither identified appellant. That same day, police found another photo of appellant taken shortly before the shooting and showing him with both long hair and facial hair. The second photo lineup was assembled using this photograph. Luis and Beltran both positively identified appellant in the second photo lineup.

We affirm the admission of identification evidence unless 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) (quoting Manson v. Brathwaite, 432 U.S. 98, 116, 97 S. Ct. 2243, 2254 (1977)). Appellant has not demonstrated such a likelihood here. Beltran knew appellant prior to the shooting and recognized him when he approached the car. Both Luis and Beltran witnessed the fight between appellant and Francisco. Luis was an eyewitness to the shooting and he fought with appellant, seeking to disarm him. Further, both men were certain of the identification of appellant at the second lineup, which was not impermissibly suggestive. Finally, the correct identifications were made within 24 hours of the shooting.

IV. Costs of Prosecution

Minn. Stat. § 631.48 (1996) provides:

[U]pon conviction of the defendant, the court may order as part of the sentence that defendant shall pay the whole or any part of the disbursements of the prosecution, including disbursements made to extradite a defendant. The court may order this payment in addition to any other penalty authorized by law which it may impose.

Appellant argues that the trial court erred in its award of prosecution costs because it did not determine that he had the ability to pay such costs. The Minnesota Supreme Court has recently held, however, that

a sentencing judge need not specifically find that a defendant has the ability to pay a fine before imposing the fine as part of the defendant's sentence.

Perkins v. State, 559 N.W.2d 678, 693 (Minn. 1997). The same should also apply to prosecution costs. Cf. State v. Martinson, 460 N.W.2d 342, 344 (Minn. App. 1990) ("We find no reason to distinguish between requiring the trial court to determine ability to pay before imposing a fine and before ordering payment of the cost of prosecution."), review denied (Minn. Oct. 25, 1990).

Appellant also argues that the trial court erred because it awarded costs not covered by statute, specifically, the costs for translation of documents and interpretation. But the costs cited by appellant related to statements taken from non-English speaking witnesses and interpretation provided for key witnesses at trial. These are discovery and witness costs, and are recoverable. See State v. Niemczyk, 400 N.W.2d 401, 404 (Minn. App. 1987) (necessary costs of discovery, witness fees, and travel expenses allowed by statute). Other translation costs were related to appellant's extradition, including translation of police and autopsy reports and pleadings; these also are recoverable under Minn. Stat. § 631.48.

Appellant contends that the lodging expenses of co-counsel should not be included. Lodging expenses are "travel expenses," which are allowed by statute. Niemczyk, 400 N.W.2d at 404. Appellant also argues that the photo and slide development, blood tests, and subpoena service cannot be recouped. These costs are recoverable as costs of discovery and witness costs. Id. The trial court did not err in its award of prosecution costs.