This opinion will be unpublished and

may not be cited except as provided by

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




State of Minnesota,



Devaries Dentae Dillard,


Filed January 12, 1999


Toussaint, Chief Judge

Hennepin County District Court

File No. 97063053

Michael A. Hatch, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent)

Amy Klobuchar, Hennepin County Attorney, Paul R. Scoggin, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

John M. Stuart, State Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN 55414 (for appellant)

James T. Diamond, Special Assistant State Public Defender, 2250 Fifth Street Tower, 100 South Fifth Street, Minneapolis, MN 55402 (for appellant)

Considered and decided by Toussaint, Chief Judge, Peterson, Judge and Foley, Judge.[*]


TOUSSAINT, Chief Judge

Appellant Devaries Dillard challenges his conviction and prison sentence for aiding and abetting first-degree assault. Dillard argues that (1) the weight of the evidence and interests of justice require a new trial; (2) the trial court abused its discretion in ordering a 50 month upward durational departure; (3) there was a misidentification; and (4) he received ineffective assistance of trial counsel. Because there is sufficient evidence in the record to support the conviction and the upward departure based on particular cruelty, and insufficient evidence of misidentification or ineffective assistance of counsel, we affirm.



Dillard argues that the weight of the evidence and the interests of justice require a new trial because the state's witnesses were not credible and their contradictory testimony preponderates against the verdict. In reviewing sufficiency of the evidence claims, this court is limited to ascertaining whether, given the facts in the record and the resulting legitimate inferences, the jury could reasonably conclude that the defendant was guilty of the offense charged. State v. Johnson, 568 N.W.2d 426, 435 (Minn. 1997). We cannot retry the facts, but must view the evidence most favorable to the state and assume that the jury believed the state's witnesses and disbelieved any contradictory evidence. Id. Identification need not be positive and certain, rather it can be sufficient if a witness testifies that in their belief, opinion and judgment, the defendant is the one who the witness saw commit the crime. Id. The jury, not this court, makes credibility determinations. State v. Bliss, 457 N.W.2d 385, 391 (Minn. 1990).

Whoever assaults and inflicts great bodily harm upon another is guilty of assault in the first-degree. Minn. Stat. § 609.221, subd. 1 (Supp. 1997). Great bodily harm is defined as:

bodily injury which creates a high probability of death, or which causes serious permanent disfigurement, or which causes a permanent or protracted loss or impairment of the function of any bodily member or organ or other serious bodily harm.

Minn. Stat. § 609.02, subd. 8 (1996). One is liable for a crime committed by another if that person intentionally aids, counsels, or conspires with or otherwise procures the other to commit the crime. Minn. Stat. § 609.05, subd. 1 (1996).

The record contains eyewitness testimony that Dillard aided in assaulting the victim, Ryan Newby. Eyewitness testimony of one credible witness can support a guilty verdict. Johnson 568 N.W.2d at 435. Stephanie Thayer and Steven Ybarra both testified that Dillard stomped on Newby's head while he lay on the ground unconscious. Ybarra testified that he was positive that he saw Dillard kick Newby. Ybarra also identified Dillard at a show-up identification minutes after he was arrested following the assault. Another eyewitness, Franz Gardner, testified that Dillard held Newby by the waist while his accomplice repeatedly stomped Newby in the face. Gardner also testified that Dillard hit Newby while on the ground. In his defense, Dillard testified that he grabbed Newby around the waist and swung at Newby a couple of times. The testimony of Thayer, Gardner and Dillard corroborates Ybarra's identification. Therefore, there is sufficient evidence in the record to lead the jury to reasonably conclude that Dillard was guilty of aiding and abetting the assault of Newbury.


Dillard also argues that the trial court abused its discretion in ordering a 50 month upward durational departure without considering mitigating factors. The sentencing court may impose a more appropriate and equitable sentence when substantial and compelling factors are present. State v. Felix, 410 N.W.2d 398, 401 (Minn. App. 1987), review denied (Minn. Sept. 29, 1987). The trial court is accorded broad discretion, which will not be interfered with absent a strong feeling that the sentence exceeds that proportional to the severity of the offense. Id. Although infliction of injury may be an element of the crime, that injury can be considered as an aggravating factor when it is serious and permanent. State v. Van Gorden, 326 N.W.2d 633, 634 (Minn. 1982).

The trial court partially granted the state's motion for an upward departure because of the aggravating factor of particular cruelty. In support of its departure, the trial court relied on Felix, 410 N.W.2d 398. In Felix, this court affirmed a double durational departure for a first-degree assault conviction where the victim was robbed and brutally beaten. Id. at 401. The victim was found near a dumpster, partially clothed, with her pants down to her ankles and her shirt up around her head. Id. at 399. As a result of the brutal attack, her eyes were swollen shut, she had a deep and long cut on her face, and her lip was completely pulled apart, exposing her teeth and upper jaw. Id.

Dillard also argues that, according to State v. Wall, 343 N.W.2d 22 (Minn. 1984), his lack of intent to assault Newby, his intent to break up the fight, and his cessation when Newby was unconscious are mitigating factors that the trial court was required to consider.

In Wall, the Minnesota Supreme Court modified the defendant's sentence because the aggravating circumstances were negated by his lack of substantial capacity for judgment. Id. at 25. Here, there was ample evidence in the record to show that Dillard had substantial capacity for judgment. Thus, Dillard's reliance on Wall is misplaced. The mitigating factors asserted by Dillard do not negate the aggravating factor of particular cruelty.

Dillard further argues that according to State v. Blegen, 387 N.W.2d 459 (Minn. App. 1986), review denied (Minn. July 31, 1986), the element of great bodily harm cannot be used as an aggravating factor for sentencing. In Blegen, the victim was brutally sexually assaulted. The defendant choked and beat her, banged her head into a tree, and bit her on the face, cheeks, hands, arms and legs. Id. at 461. Defendant also repeatedly pummeled the victim in the face. Although we cited State v. Jeno, 352 N.W.2d 82, 84 (Minn. 1984), for the proposition that generally "something more than the elements of the offense must exist to justify a departure," we affirmed the sentence because of the defendant's treatment of the victim with particular cruelty. Blegen, 387 N.W.2d at 464.

Similar to Blegen, Newby suffered injuries greater than those contemplated by the great bodily harm element of first-degree assault. Newby suffered various injuries that each alone would satisfy the definition of great bodily harm. Newby suffered a coma, serious permanent disfigurement, and a severe brain injury, and was also subjected to a high probability of death as a result of this assault. Therefore, the trial court properly considered Newby's injuries and did not abuse its discretion by imposing an upward departure based on the aggravating factor of particular cruelty.


In his pro se brief, Dillard also argues that he received ineffective assistance of counsel at trial. Dillard argues that his counsel failed to (1) make timely objections; (2) investigate the matter properly; (3) obtain his confederate's clothing; (4) impeach witnesses; (5) discuss the matter with him in a timely manner; and (6) work with him to prepare a trial strategy for his defense.

In alleging ineffective assistance of counsel, the appellant must prove:

First * * * that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

Fox v. State, 474 N.W.2d 821, 826 (Minn. 1991)(quoting Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984)). A strong presumption exists that counsel's performance falls within a wide range of reasonable professional assistance. Hale v. State, 566 N.W.2d 923, 927 (Minn. 1997). Counsel need not obtain a favorable result, but provide a guiding hand, as envisioned by the Sixth Amendment. Id. This court may dispose of an ineffective assistance of counsel claim when the appellant fails to prove there was a reasonable probability that the outcome would have been different. Id. Here, although Dillard alleges several instances of ineffective assistance, he has failed to prove that these actions would have produced a different outcome at trial. Furthermore, there is no evidence in the record to suggest that these events were so serious that Dillard's counsel was not functioning as "counsel" guaranteed by the Sixth Amendment. Consequently, Dillard's claim of ineffective assistance is unfounded.


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