This opinion will be unpublished and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
C0-97-2355

Reginald Ferguson, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed July 28, 1998
Affirmed
Lansing, Judge

Hennepin County District Court
File No. 96050352

John Stuart, State Public Defender, Paul C. Thissen, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)

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

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

Considered and decided by Klaphake, 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.

U N P U B L I S H E D   O P I N I O N

LANSING, Judge

In an appeal from the denial of his petition for postconviction relief, Reginald Ferguson challenges the sufficiency of the evidence to support his convictions, the admission of evidence of gang affiliation, the admission of provisions of a witness's agreement to testify, and the prosecution's failure to produce exculpatory evidence. We conclude that the district court's evidentiary rulings were within its discretion and the evidence is sufficient to support the jury's verdict. We affirm.

FACTS

A jury convicted Reginald Ferguson of kidnapping, first and second degree assault, and attempted murder of Ken Phillips. Phillips was beaten, hit with a hammer, shot in the head, and left lying on the front lawn of the house he shared with his girlfriend, Kim Black, and her two children. The incident followed several months of discord between Phillips and Kim Black's sister, Alizia Black, who had moved into the house with her two children. Reginald Ferguson was the father of Alizia Black's children.

In the five months Alizia Black lived in the house, she and Phillips argued about money, phone usage, and Alizia Black's visitors. On the evening of the incident, Phillips and Alizia Black had an argument that ended in Phillips punching her after she tried to hit him with a hammer. After police were called, Phillips left the house. Later that night Phillips went to Kim Black's workplace to tell her what had happened and to demand that Alizia Black move. Phillips went back to the house about 11 p.m. after Kim Black had returned from work. Phillips had been drinking and smoking marijuana. Phillips and Alizia Black resumed arguing and, in response to a phone call, two police officers arrived at the residence at approximately 12 a.m. After investigating, the officers concluded that no crime had been committed. As they were leaving, one of the officers overheard Alizia Black say to her sister, "Ken should be shot."

When the police left, Alizia Black made a phone call. Phillips then phoned his cousin to come and pick him up and went upstairs, where he discovered that his clothes were missing. He retrieved the burned and discarded clothes from the trash behind the house and took them to a neighbor's, intending to show them to the police later.

When Phillips returned to his house, two vehicles pulled up in front and several males, including Ferguson, got out of the vehicles and confronted Phillips in the front yard; one put a gun to Phillips' head and forced him into the house. Ferguson entered the house, went to the basement where Alizia Black stayed, and kicked open the door. A few minutes later, they came upstairs together. Alizia Black began hitting Phillips in the head with a hammer, and the others joined in beating Phillips. The beating continued on the front lawn, ending in Phillips being shot at close range in the side of the head. The six attackers got into their vehicles and fled.

Police arrived and arrested Alizia Black, who was covered with blood and had the bloody hammer in her possession. Several months later, Ferguson and Holt were arrested and charged. Holt was acquitted, and Ferguson's trial for attempted first degree murder ended in a mistrial because the jury could not agree on a verdict. The state recharged Ferguson with attempted second degree murder, kidnapping, first degree assault, and second degree assault, and a jury convicted him on all four counts. A direct appeal was dismissed to allow Ferguson to file a consolidated postconviction petition that included a discovery violation claim. The district court denied the petition, and Ferguson appeals.

D E C I S I O N

In reviewing a postconviction order, our function is to determine whether the record sustains the findings and whether the decision constitutes an abuse of discretion. Black v. State, 560 N.W.2d 83, 85 (Minn.1997). We will not reverse specific findings if they are supported by sufficient evidence, but we make an independent determination of the law as it applies to the facts. See Doan v. State, 306 Minn. 89, 91-92, 234 N.W.2d 824, 826-27 (1975) (upholding factual findings supported by evidence, but reviewing legal determination based on found facts independently). We address separately Ferguson's claims of (1) insufficient evidence, (2) improperly admitted gang affiliation evidence, (3) improperly admitted provisions of a witness's agreement to testify, and (4) prosecutorial failure to produce exculpatory evidence.

I

Evidence is sufficient to support a conviction if, given the facts in the record and the legitimate inferences drawn from those facts, the jury could reasonably conclude that the defendant committed the charged offense. Dale v. State, 535 N.W.2d 619, 623 (Minn. 1995). We view the evidence in the light most favorable to the verdict and assume the jury believed the evidence supporting the conviction and disbelieved any contradictory evidence. State v. Pieschke, 295 N.W.2d 580, 584 (Minn. 1980).

Ferguson argues that the evidence does not establish that he was a knowing participant in the beating and shooting of Phillips. We disagree. Kim Black and Phillips both testified that Ferguson was part of the attack. Kim Black testified that she saw Ferguson, Alizia Black, and the others beating Phillips and that all the men had guns. Phillips testified that Ferguson participated in beating him and appeared to be in control of the situation.

Johnny Edwards testified that he was with Holt on the evening of the incident and that shortly after Holt received a phone call, he asked Edwards for a ride to North Minneapolis. Edwards stated that he was a member of the Rolling 30's Bloods gang and that Ferguson was the leader of that gang. He further stated that the other five males involved in the assault on Phillips were members of the same gang.

Although Edwards' testimony was not completely consistent with Kim Black's and Phillips', some inconsistency between one state witness and another is not necessarily proof of false testimony or a basis for reversal. State v. Daniels, 361 N.W.2d 819, 826 (Minn. 1985). The jury is the sole judge of credibility and "is free to accept part and reject part of a witness' testimony." State v. Poganski, 257 N.W.2d 578, 581 (Minn. 1977). The testimony of Kim Black and Phillips was sufficient for the jury to find Ferguson guilty of the charged offenses.

Ferguson alternatively contends that he should not have been convicted of attempted second degree murder because he attempted to stop the others from shooting Phillips. We agree that a person who, although originally participating in a scheme or plan to commit a crime, withdraws before the actual commission of the crime may thereby absolve himself of criminal responsibility. State v. Currie, 267 Minn. 294, 300, 126 N.W.2d 389, 394 (1964). But we do not agree that the evidence demonstrates Ferguson's withdrawal.

Kim Black testified that Holt put a gun to Phillips' head and said, "you're going to die n-----r. You're going to die." Ferguson told Holt: "No man. Not here. Not here man. I got kids in here." Ferguson argues this was an attempt to stop the shooting. But Ferguson did not tell Holt not to shoot Phillips; he merely told him not to do it in the house. Ferguson made no attempt to call the police or to cooperate in the investigation. Rather, he fled from the house and denied any involvement in the beating. The evidence established that Ferguson played a "knowing role in the commission of the crime" and did not withdraw before the crime was committed. State v. Merrill, 428 N.W.2d 361, 367 (Minn. 1988).

II

Ferguson asserts that the introduction of gang-related evidence and particularly evidence as to his leadership in a gang was both irrelevant and prejudicial. "Evidentiary rulings rest within the sound discretion of the district court" and will not be reversed on appeal absent a clear abuse of discretion. State v. Ashby, 567 N.W.2d 21, 25 (Minn. 1997) (citing State v. Glaze, 452 N.W.2d 655, 660 (Minn. 1990)). On appeal, the defendant has the burden of establishing that the district court abused its discretion by admitting evidence and the admission of that evidence prejudiced the defendant. State v. Willis, 559 N.W.2d 693, 698 (Minn. 1997). Evidence of a defendant's gang affiliation is admissible if relevant and if the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice. State v Carslon, 268 N.W.2d 553, 559 (Minn. 1978) (citing Minn. R. Evid. 403).

Ferguson moved in limine to exclude evidence of gang affiliation. The district court declined to exclude evidence that Ferguson was a member of the same gang as the other assailants and that Ferguson had a leadership position in the gang. The district court granted the motion to exclude any other gang-related evidence unless it was part of actual statements at the time of the incident.

The state presented the evidence of Ferguson's gang affiliation and leadership role to establish a motive for the attack on Phillips. The state's theory of motivation was that Ferguson retaliated against Phillips for his actions toward the mother of Ferguson's children and used his gang members to assist. The probative value of the connection between Ferguson and the other attackers and their motive for the attack on Phillips was significant because the charge was for "aiding and abetting," and the district court did not err in ruling that it outweighed the prejudicial effect.

III

Ferguson also asserts that the district court's evidentiary ruling on the admissibility of an agreement between the state and Johnny Edwards was reversible error. The agreement, offered as rehabilitation evidence, outlined the conditions under which Edwards would testify and included cautionary language to Edwards that his testimony might place him in danger.

The record indicates that the district court carefully considered the admission of the agreement between the state and Edwards and required that part of the document be redacted before introducing it. But the court did not require the redaction of the cautionary language because it found that evidence relevant to the state's attempt to rehabilitate Edwards. The judge subsequently directed that the cautionary provisions be redacted from any written exhibit that would go to the jury.

Edwards had been thoroughly cross-examined about his motive for testifying and the benefit from the testimonial agreement. The cautionary provisions demonstrated the countervailing considerations. See State v. Harris, 521 N.W.2d 348, 352 (Minn. 1994) (evidence that decision to testify resulted in negative consequences to witness relevant to credibility but must be strictly controlled). We conclude that it was not error for the court to allow the limited use of the cautionary provisions, particularly when, as here, the ruling was accompanied by a specific instruction that it was to be considered solely for determining credibility.

IV

Ferguson's last argument is that the postconviction court erred in its ruling that he was not entitled to a new trial because of an alleged discovery violation. Sanctions for violating a discovery rule are within the district court's wide discretion. State v. Berg, 326 N.W.2d 14, 16 (Minn. 1982). If a violation occurs, the court should consider the reason disclosure was not made, the extent of any prejudice, and the feasibility of rectifying any resulting prejudice. State v. Ramos, 492 N.W.2d 557, 559 (Minn. App. 1992) (citing State v. Lindsey, 284 N.W.2d 368 (Minn. 1979)), review denied (Minn. Jan. 15, 1993). Even when a violation has occurred, a reviewing court should not order a new trial "[i]f there is no reasonable probability that the outcome of the trial would have been different had the evidence been disclosed." State v. Clobes, 422 N.W.2d 252, 255 (Minn. 1988).

Ferguson alleges a discovery violation in the state's failure to inform his attorney that the Brooklyn Park Police had returned $1,400 taken from Edwards in the execution of a search warrant. Ferguson argues the state had a duty to voluntarily disclose this information as exculpatory evidence. See generally United States v Agurs, 427 U.S. 97, 96 S.Ct. 2392 (1976); Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194 (1963).

Whether Edwards had $1,400 returned to him is hardly exculpatory of Ferguson. It is merely another attack on Edwards' credibility, which the district court found was thoroughly impeached on other grounds. The jury heard Edwards testify that he had been paid by the state and that he was let out of jail without posting bail after he agreed to testify. They also heard that he hoped to avoid a prison sentence by testifying. The additional evidence would merely have been cumulative. The district court did not err in denying Ferguson a new trial or in concluding that the modest incremental impeachment value to an already successful impeachment would not have changed the outcome of the trial.

Affirmed.