This opinion will be unpublished and

may not be cited except as provided by

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




State of Minnesota,



Mark Anthony Vaughn,


Filed October 6, 1998


Shumaker, Judge

Ramsey County District Court

File No. K1-96-3497

Hubert H. Humphrey, III, State Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101, and

Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant Ramsey County Attorney, 50 Kellogg Blvd. West, Suite 315, St. Paul, MN 55102 (for respondent)

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

Considered and decided by Klaphake, Presiding Judge, Crippen, Judge, and Shumaker, Judge.



Appellant Mark Anthony Vaughn challenges a judgment of conviction of burglary in the third degree in violation of Minn. Stat. § 609.582, subd. 3 (1996), arguing that the evidence was insufficient as a matter of law. We affirm.


On September 21, 1996, a witness watched a man throw a piece of cement through the KAM insurance agency's window, enter the building, grab something from inside, and run away. This man appeared similar in build and clothing to an individual who had tried to block the witness's entry to her apartment building across the street from KAM about a half-hour earlier.

The witness reported the KAM incident to the police and described the suspect. The police notified KAM's owner and described the suspect to her. The owner recalled that a man matching that description had come to the agency earlier that week to obtain automobile insurance. The owner checked her records and found that the man's name was Mark Anthony Vaughn.

During the investigation, the police showed a photographic lineup display to the witness, and she selected appellant's photograph as that of the man involved in the incident at her apartment building and the KAM break-in. Appellant was charged with third-degree burglary.

The witness and KAM's owner testified at trial. Appellant did not testify but he offered an alibi defense through the testimony of his girlfriend and her mother. The jury returned a verdict of guilty.


Where there is a challenge to the sufficiency of the evidence, our review on appeal is limited to an 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). We must assume that "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).

At trial, the witness identified appellant as the man she saw burglarizing the insurance agency. It is well-settled that a guilty verdict may be based on the testimony of even a single witness. State v. Williams, 307 Minn. 191, 198, 239 N.W.2d 222, 226 (1976); State v. Burch, 284 Minn. 300, 313, 170 N.W.2d 543, 552 (1969). Identification testimony need not be positive and certain; it is sufficient if a witness testifies that it is his opinion, belief, impression, or judgment that the defendant is the person he saw commit the crime. Burch, 284 Minn. at 313, 170 N.W.2d at 552. Moreover, the credibility of an eyewitness is for the jury to decide. State v. Daniels, 361 N.W.2d 819, 826 (Minn. 1985). Thus, the witness's testimony alone can constitute sufficient evidence to sustain the verdict of guilty.

Appellant argues that the witness had insufficient opportunity to view the suspect standing in front of her doorway and consequently could not have positively and accurately identified appellant as the individual who burglarized the insurance agency.

Some factors considered in evaluating the reliability of eyewitness identification are the witness's opportunity to see the defendant when the crime occurred, the length of time the witness observed the defendant, and the amount of time between the crime and identification. Burch, 284 Minn. at 315-16, 170 N.W.2d at 553-54. Appellant relies on State v. Gluff, 285 Minn. 148, 151, 172 N.W.2d 63, 65 (1969), to support his argument that the witness observed the suspect for an insufficient amount of time for an accurate identification. The facts in Gluff, however, are distinguishable from the facts here. In Gluff the witness observed the intruder for only 30 seconds before a gun was pointed at her. Thereafter her attention was riveted on the gun. Additionally, her description to the police was wholly at variance with her later identification. Here, the witness was face-to-face with appellant as she attempted to enter her building, and when he would not move she had to summon assistance from a neighbor who told him to move on. That time frame was necessarily longer than 30 seconds. Furthermore, unlike the eyewitness's identification in Gluff, this witness's description remained constant.

In this case, the witness's observation of appellant at close range outside her apartment building and then again as he entered and left the insurance agency gave her a sufficient opportunity to make a reliable identification of appellant. See State v. Kowski, 423 N.W.2d 706, 709 (Minn. App. 1988) (witness had ample opportunity to view defendant during five minute face-to-face conversation); see also State v. Garrity, 277 Minn. 111, 113, 151 N.W.2d 773, 775 (1967) (victim had ample time and opportunity to view defendant when she saw him enter her front door, walk across living room, and leave by front door); see also State v. Ellingson, 283 Minn. 208, 209 167 N.W.2d 55 (1969) (sufficient identification where victim kept his eyes on robber for 10 or 15 minutes in order to make an identification).

The third factor considered in evaluating the reliability of the identification is the amount of time between the crime and the identification. Burch, 284 Minn. at 315-16, 170 N.W.2d at 553-54. Here, only a few days elapsed between the burglary and the witness's photo identification of appellant. This was a short enough time period that appellant's appearance could have been reasonably fresh in the witness's memory. See Kowski, 423 N.W.2d at 709 (when only three weeks elapsed between crime and identification, defendant's face relatively fresh in witness's memory).

The dispositive evidence in the case, consisting of the witness's visual identifications, KAM's owner's identification, and the physical indicia of the burglary, was sufficient to support appellant's conviction. Furthermore, the jury was free to accept or reject appellant's alibi defense. State v. Robinson, 539 N.W.2d 231, 238 (Minn. 1995).