This opinion will be unpublished and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

C5-97-1802

State of Minnesota,

Respondent,

vs.

Gregory Lamont Edwards,

Appellant.

Filed June 30, 1998

Affirmed

Willis, Judge

Hennepin County District Court

File No. 9715285

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

Michael O. Freeman, Hennepin County Attorney, Michael Richardson, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

Bradford Colbert, Assistant State Public Defender, 875 Summit Avenue, Room 371, St. Paul, MN 55105 (for appellant)

Considered and decided by Huspeni, Presiding Judge, Short, Judge, and Willis, Judge.

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

WILLIS, Judge

Gregory Lamont Edwards appeals from his conviction of aggravated robbery in violation of Minn. Stat. 609.245, subd. 1 (1996), claiming insufficiency of the evidence and prosecutorial misconduct. We affirm.

FACTS

On February 22, 1997, Euligio Santos Quiambao was struck on the back of the head while in the men's restroom of TGI Friday's in the City Center in downtown Minneapolis. He fell, hitting his head against the wall. While Quiambao was on the floor, his wallet, which he claimed contained more than $400, was taken from his pocket.

Fernando Jose Santa, a bartender, heard Quiambao yelling and went to investigate. Santa separated Quiambao and appellant Gregory Lamont Edwards. Edwards complained that Quiambao was kicking him, and Quiambao said that he was being robbed. Shortly thereafter, three or four mall security officers arrived, including Sergeant John Delmonico, an off-duty Minneapolis policeman. Quiambao said his wallet had been thrown into the ladies' restroom, and Sergeant Delmonico asked a female TGI Friday's employee to retrieve it. Delmonico found no money in the wallet and returned it to Quiambao so he would have identification. The security officers took Edwards to a mall security office, searched him, and found he was carrying only about six dollars. Edwards was charged with aggravated robbery.

At trial, Quiambao testified that the man who hit him also took his wallet after he fell and that he saw that man throw the wallet into the ladies' restroom, which witnesses placed at between 5 and 12 feet away.[1] He also testified that this was the same man who was with him when the security officers arrived. Quiambao was not asked in court to identify Edwards as his attacker, but Sergeant Delmonico testified that Edwards was the man who was with Quiambao when Delmonico arrived.

Edwards did not testify at trial. In closing argument, the prosecutor suggested that Edwards might have had an accomplice. Defense counsel objected, claiming there was no evidence to support the suggestion, but the district court allowed the argument.

The jury found Edwards guilty of aggravated robbery. Edwards moved for a new trial, claiming prosecutorial misconduct. The district court denied the motion and sentenced Edwards to 72 months in prison. Edwards appeals.

D E C I S I O N

I. Sufficiency of the 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). This court must assume "the jury believed the state's witnesses and disbelieved any evidence to the contrary." State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).

Edwards claims that the evidence is insufficient to prove beyond a reasonable doubt that he assaulted Quiambao and took his wallet because Quiambao did not identify him at trial. But Quiambao testified that the man who hit him was the same man who took his wallet and was the same man who was with him when the security officers arrived. Sergeant Delmonico identified Edwards as the man who was with Quiambao when he arrived. Viewed in the light most favorable to the conviction, this evidence is sufficient to permit the jurors to find that Edwards was Quiambao's assailant and took his wallet.

II. Prosecutorial Misconduct

"Upon a claim of prosecutorial misconduct, the court must determine if there was improper conduct and, if so, whether it was serious." State v. McDaniel, 534 N.W.2d 290, 293 (Minn. App. 1995), review denied (Minn. Sept. 20, 1995). The determination of whether a prosecutor acted improperly is generally left to the sound discretion of the district court. State v. Parker, 353 N.W.2d 122, 127 (Minn. 1984). The determination of whether a new trial should be granted because of prosecutorial misconduct is within the discretion of the district court, who is in the best position to evaluate the effect of any misconduct. State v. Wahlberg, 296 N.W.2d 408, 420 (Minn. 1980).

In closing argument to the jury,

[t]he prosecutor may argue all reasonable inferences from evidence in the record. It is unprofessional conduct for the prosecutor intentionally to misstate the evidence or mislead the jury as to the inferences it may draw.

State v. Salitros, 499 N.W.2d 815, 817 (Minn. 1993) (quoting I American Bar Association Standards for Criminal Justice, The Prosecution Function, Standard 3-5.8(a) (2d ed. 1979)).

Edwards contends he was denied a fair trial, claiming that the prosecutor's suggestion to the jury that Edwards might have had an accomplice constituted misconduct because it misstated evidence. Specifically, the prosecutor stated,

In his opening statement, the defense said, "Where is the money?" The answer is, we don't know and that's a question we would like to know the answer to. It's clear that Mr. Quiambao's four hundred plus dollars were not found on the defendant. We don't know. Did he hand it off? Was there an accomplice in the bathroom?

Defense counsel objected to the statements, arguing that the state had presented no evidence of an accomplice. The district court ruled that "[t]he jury will decide the facts and any reasonable inferences from the facts, including direct and circumstantial evidence" and permitted the prosecutor to proceed.

There is no evidence that the prosecutor misstated evidence or misled the jury as to the inferences it could draw by suggesting that Edwards might have had an accomplice. The possibility of an accomplice could be inferred from the facts that the money was not found on Edwards and it would have been difficult for Edwards alone to dispose of the money while remaining in Quiambao's view. The prosecution's suggestion was not inappropriate in light of defense counsel's argument that Edwards could not have committed the crime. See State v. Gassler, 505 N.W.2d 62, 69 (Minn. 1993) (holding that prosecutor's comment on defense theory not improper); see also Wahlberg, 296 N.W.2d at 419 (providing that counsel may present all legitimate arguments on evidence, analyze and explain evidence, and present inferences properly drawn from evidence).

The district court did not abuse its discretion in finding no prosecutorial misconduct.

Affirmed.

[ ]1 There was conflicting testimony about exactly where Quiambao and his assailant were. Quiambao testified that they were in the men's restroom, but Santa testified that he found the two in an area near the restroom. Counsel addressed this inconsistency in their closing arguments.