This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1996).


State of Minnesota,


Irving Van Marsaw,

Filed February 10, 1998
Holtan, Judge*

Hennepin County District Court
File No. 96066666

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)

John M. Stuart, State Public Defender, Evan W. Jones, Assistant State Public Defender, 2829 University Avenue SE, 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.



At approximately 12:30 a.m. on August 6, 1996, Gloria DeJesus heard frantic knocking on the door of her north Minneapolis home. She answered it to find Anthony Riddley, perspiring heavily and looking fearful, asking to enter the house because some men were chasing him with a gun. DeJesus told Riddley to hide on her porch while she called the police. Riddley told the police that a man on a bicycle, who he knew to be named Irving and who was accompanied by another man, had pulled a gun out of his clothing, pointed it at him, and threatened to kill him.

At DeJesus's residence, the police received word of a shooting approximately five blocks away. Believing the incidents could be connected, the police drove to the homicide scene and spoke with the officers present. At the scene, Riddley identified two men on bicycles among the watching crowd, wearing clothing that matched his description of the suspects, as the men who had assaulted him. The police searched the two men for weapons and recovered a gun from 17-year-old B.H. The other man was Irving Marsaw, whom Riddley had met once previously. Riddley told the officers that Marsaw had confronted him about a car theft that Riddley had reported.

After the men were arrested, police questioned B.H., telling him that if he did not implicate Marsaw, he would be given three years in adult prison, but that if he did he would receive extended juvenile jurisdiction status. B.H. then told police that he had handed the gun to Marsaw at Marsaw's request upon encountering Riddley. B.H. pleaded guilty to assault in juvenile court. Marsaw pleaded not guilty to felony counts of second-degree assault and first-degree tampering with a witness.

At trial, Riddley testified that at about 10:40 p.m., he parked behind his girlfriend's home at 1419 Girard Avenue North in Minneapolis accompanied by his girlfriend's five-year-old niece, who did not testify, and began escorting the sleepy girl to the house. Riddley testified that as he did so, Marsaw and B.H. rode up on bicycles, and Marsaw, after getting off his bike, said, "I ought to kill your b**** ass now." He then told B.H. to hand him his "strap," which the officers testified is recognized slang for a gun. Riddley testified that upon seeing the gun, he left the girl on the porch and began to run, but Marsaw chased him on foot with the gun. Riddley testified that he hid in a stand of bushes three blocks away for approximately 10 to 15 minutes while Marsaw and B.H. rode past. He then began to walk back to his girlfriend's house, but after seeing two individuals on bicycles, elected to ask DeJesus for help. Riddley also testified that he had witnessed Marsaw stealing his car in June and reported this to police, although the police report introduced into evidence described the incident as a carjacking and listed the suspects as "unknown."

Marsaw admitted that while riding bicycles that night he and B.H. had come upon Riddley, but testified they found him on the 1400 block of Fremont rather than on Girard, that no little girl was present, and that Riddley had been in the process of removing wheels from the car of Marsaw's friend. He testified that Riddley began to run at the sight of him, and that he began to chase Riddley but changed his mind. Marsaw denied knowing that B.H. had a gun. Marsaw said that in June, he had gone with police to recover his sister's stolen car, which had been found behind Riddley's sister's home; the defense did not introduce a police report or provide any police corroboration.

B.H., who described Marsaw as a close friend, testified that he did not know the address where he and Marsaw encountered Riddley, but that Riddley was attempting to break into the car of one of their friends. B.H. then attempted to recant his testimony that he had handed Marsaw a gun. At this point the prosecutor broke off questioning and a discussion was held off the record. The court recessed for lunch and the next witness was called out of order. When B.H. returned to the stand after consulting his attorney, he answered "yeah" when the prosecutor asked whether Marsaw had asked for a gun, whether B.H. had provided it, and whether Marsaw had pointed it at Riddley. He corroborated Marsaw's statement that Marsaw did not chase Riddley for any distance. On cross-examination, he said that he had lied in his earlier testimony, but changed his story because he was afraid of the revocation of his extended juvenile jurisdiction status. B.H. also admitted making several prior statements to the effect that he had not handed Marsaw a gun but was under great pressure to implicate him.

In closing arguments, the defense theorized that Riddley had invented his story after Marsaw and B.H. caught him burglarizing a car and highlighted the change in B.H.'s testimony as evidence that it resulted only from fear of an adult prison sentence. The defense cited the facts that Riddley had misidentified the gun and that no fingerprints were found on it as evidence that the gun had never left B.H.'s pocket,[1] and expressed doubt that Riddley, who is apparently overweight, could have outrun the equally tall and thinner Marsaw. The prosecution emphasized Riddley's fearful condition and the circumstantial corroboration of his account, as well as B.H.'s implication of Marsaw on the night of the arrest and at his juvenile court hearing.

After 22 hours and "heated" discussion, the jury found Marsaw guilty of assault, but not guilty of witness tampering. Marsaw appeals the sufficiency of the evidence for his conviction.


In a sufficiency of the evidence case, 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). The test is whether "the jury, acting with due regard for the presumption of innocence and for the necessity of overcoming it by proof beyond a reasonable doubt, could reasonably conclude that a defendant was proven guilty." State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).

Normally, a reviewing court must assume the jury believed the state's witnesses and disbelieved any contrary evidence. State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989). But this rule has been modified in the case of accomplice testimony by Minn. Stat. § 634.04 (1996), which provides:

A conviction cannot be had upon the testimony of an accomplice, unless it is corroborated by such other evidence as tends to convict the defendant of the commission of the offense, and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof.

Corroborating evidence need not be sufficient to establish a prima facie case of guilt, but must corroborate the accomplice's testimony in "some substantial degree." State v. Adams, 295 N.W.2d 527, 533 (Minn. 1980). Corroborating evidence is legally sufficient if it "restores confidence in the accomplice's testimony" by (1) reinforcing its truth and (2) pointing to the defendant's guilt to a substantial extent. State v. Kingbird, 412 N.W.2d 350, 353 (Minn. App. 1987), review denied (Minn. Nov. 6, 1987) (quoting State v. Lemire, 315 N.W.2d 606, 610 (Minn. 1982)). Corroboration on every point, or every element of the crime, is not required. Id. Evidence that is as consistent with innocence as with guilt may not be used to corroborate accomplice testimony. State v. Head, 561 N.W.2d 182, 188-89 (Minn. App. 1997), review denied (Minn. May 28, 1997). The degree of corroboration necessary depends on the circumstances of each case. Adams, 295 N.W.2d at 533.

Circumstantial evidence is permissible and is reviewed in the light most favorable to the verdict. State v. Bowles, 530 N.W.2d 521, 532 (Minn. 1995), cert. denied, 116 S. Ct. 1050 (Mar. 4, 1996). But such evidence must link the defendant to the crime, not merely show that the crime occurred. State v. Swenson, 396 N.W.2d 855, 857 (Minn. App. 1986), review denied (Minn. Feb. 13, 1987). Circumstantial evidence may include:

opportunity and motive; proximity of the defendant to the place where the crime was committed under unusual circumstances; association with persons involved in the crime in such a way as to suggest joint participation; [or] possession of an instrument or instruments probably used to commit the offense.

State v. Mathiasen, 267 Minn. 393, 398-99, 127 N.W.2d 534, 538-39 (1964) (footnotes omitted).

If B.H.'s testimony is not considered, the record consists of Riddley's testimony and the accompanying circumstantial evidence. For this evidence, the standard of review is considerably more deferential because "weighing the credibility of witnesses is the exclusive function of the jury." State v. Pieschke, 295 N.W.2d 580, 584 (Minn. 1980). "A conviction can rest on the uncorroborated testimony of even a single credible witness." Head, 561 N.W.2d at 188. "[I]nconsistencies in the state's case will not require a reversal of the jury verdict." Pieschke, 295 N.W.2d at 584. Some decisions have suggested that evidence may be insufficient where the state's case

is completely dependent upon a single witness whose testimony, considered in the light of the record as a whole, is of dubious veracity, and where a careful scrutiny of the record creates grave doubts of the defendant's guilt.

State v. Hamilton, 289 N.W.2d 470, 477 (Minn. 1979) (citing State v. Kemp, 272 Minn. 447, 138 N.W.2d 610 (1965)). In Kemp, however, the "grave doubts" came from the fact that the court had excluded evidence impeaching the witness and corroborating the defendant's alibi.

Riddley's testimony, if believed, establishes all the elements of second-degree assault, and therefore would have been legally sufficient to convict Marsaw if Hodges had not testified. Courts have upheld the sufficiency of the evidence for conviction based on the testimony of witnesses of questionable credibility. See Pieschke, 295 N.W.2d at 584 (citing cases). The jury here could reasonably have concluded that the inconsistencies in Riddley's testimony resulted from his excitement, or, even in the absence of B.H.'s testimony, that Riddley was in fact attempting to steal a car but that Marsaw did in fact threaten him with a gun. Marsaw does not dispute that the jury was properly instructed on accomplice testimony, and precedent indicates that in this situation, courts will uphold convictions based on legally sufficient evidence rather than inquiring as to whether questionable accomplice testimony might have played a part in jury deliberations. See Head, 561 N.W.2d at 189 (declining to consider whether witness was accomplice whose testimony could not be used to corroborate second accomplice's testimony because other evidence provided sufficient corroboration); see also State v. Johnson, 289 Minn. 346, 347, 184 N.W.2d 660, 661 (1971) (upholding sufficiency based on victim's testimony and circumstantial evidence before considering admissibility of certain accomplice testimony).


[ 1] The police officer who searched for fingerprints testified that it was not unusual to find no prints on a gun because the surface was not conducive to retaining prints. But he also said that one of the reasons was because guns are oiled, and that there had been no oil on B.H.'s gun.