This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-912

 

State of Minnesota,

Respondent,

 

vs.

 

Darnell Theodore Richardson,

Appellant.

 

Filed May 17, 2005

Affirmed

Toussaint, Chief Judge

 

Hennepin County District Court

File No. 03052707

 

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

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

 

John M. Stuart, State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414; and

 

Melissa V. Sheridan, Assistant Public Defender, 1380 Corporate Center Curve, Suite 320, Eagan, MN 55121  (for appellant)

 

            Considered and decided by Shumaker, Presiding Judge; Toussaint, Chief Judge; Crippen, and Judge.*

U N P U B L I S H E D  O P I N I O N

 

TOUSSAINT, Chief Judge

 

On this appeal from his conviction of third-degree assault, appellant argues that (1) the officers’ identification testimony was insufficient to prove that he committed the crime and (2) the prosecutor committed prejudicial misconduct in closing argument by asserting that the undercover officer identified appellant in court as one of the assailants.  Because we conclude that the identification testimony was sufficient and that there was no prosecutorial misconduct, we affirm.

D E C I S I O N

I.

 

            Appellant Darnell Richardson argues that the eyewitness-identification evidence presented to the jury was insufficient as a matter of law to support his conviction.  He contends that the state failed to prove beyond a reasonable doubt that he was the person who committed the offense.

            To warrant a conviction, the state must prove “beyond a reasonable doubt all of the essential elements of the crime with which the defendant is charged . . . .”  State v. Ewing, 250 Minn. 436, 442, 84 N.W.2d 904, 909 (1957).  In reviewing a claim of insufficient evidence, this court determines “whether, under the facts in the record and any legitimate inferences that can be drawn from them, a jury could reasonably conclude that the defendant was guilty of the offense charged.”  State v. Race, 383 N.W.2d 656, 661 (Minn. 1986).  We view the evidence in the light most favorable to the conviction and assume that “the jury believed the state’s witnesses and disbelieved any contrary evidence.”  Id.  We will not set aside a verdict if the jury, acting with due regard for the presumption of innocence and the necessity to overcome that presumption by proof beyond a reasonable doubt, could reasonably conclude that the defendant is guilty.  State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).

            Identification is a question of fact for the jury to determine.  State v. Otten, 292 Minn. 493, 494, 195 N.W.2d 590, 591 (1972). “Identification testimony need not be absolutely certain; it is sufficient if the witness expresses a belief that she or he saw the defendant commit the crime.”  State v. Miles, 585 N.W.2d 368, 373 (Minn. 1998).  But absent corroboration, eyewitness identification based on “fleeting or limited observation” should not be the basis for conviction.  State v. Spann, 287 N.W.2d 406, 407-08 (Minn. 1979).

            Courts will look at several factors to determine whether there was a substantial probability of misidentification:  (1) the witnesses’ view of the criminal at the time of the crime; (2) the witnesses’ degree of attention; (3) the accuracy of the witnesses’ descriptions; (4) the level of certainty of the witnesses when the identification was made; and (5) the time between the crime and the identification.  State v. Ostrem, 535 N.W.2d 916, 921 (Minn. 1995).

            Here, Officer John Biederman was the only eyewitness to the assault who took the stand.  He testified that he was directly across the street and two floors above Hennepin Avenue where the incident occurred.  He said the area was well lit, he had the use of binoculars, and his view was unobscured.  He radioed for uniformed officers during the assault so they were on the scene within seconds.  He observed details, including the victim’s arms going “stiff” when he hit the ground.  The uniformed officers testified that Biederman’s clear descriptions of the attackers and their location allowed them to identify the individuals with certainty.  Although Biederman’s official statement did not contain the physical descriptions of the attackers, the testimony of the arresting officer, Officer Kevin Lazarchac, indicated that Biederman’s description that night was sufficiently detailed to identify the attackers within seconds of the assault.  Biederman also testified that he did not lose sight of the attackers as they walked quickly down Hennepin Avenue and were arrested.  Therefore, we conclude the state presented sufficient evidence to support the jury’s finding that appellant committed the crime.

            Insofar as appellant argues that the evidence was insufficient because Biederman did not identify appellant in court, “[c]ourtroom identification is not necessary when the evidence is sufficient to permit the inference that the defendant on trial is the person who committed the acts charged.”  United States v. Hoelscher, 764 F.2d 491, 496 (8th Cir. 1985) (quotation omitted).  And here, Officer Lazarchac was able to identify appellant in the courtroom, which completed the chain for purposes of identification.  Furthermore, we reject appellant’s suggestion that the testimony of the sole defense witness, Sarah Demorest, bolsters his argument that the officers got the wrong man because (1) Demorest’s credibility was impeached by her confusing two different nights and (2) this court assumes that the jury believed the state’s witnesses and disbelieved any contrary evidence. 

II.

            Appellant argues that the prosecutor in closing argument “argued to the jury as if Biederman had made an in-court identification.”  The prosecutor stated: “And Officer Biederman told you that when he was working that night, July 29, he looked out his window, it was not very crowded, and he saw this defendant and another individual assault [the victim].”  Appellant argues that this unobjected-to statement constitutes a misrepresentation of the facts—misconduct so prejudicial that it deprived him of a fair trial.

            Before an appellate court reviews an unobjected-to error, there must be “(1) error; (2) that is plain; and (3) the error must affect substantial rights.”  State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998).  We may reverse on the basis of plain error “if failure to reverse would perpetuate a substantial and essential injustice in the sense that as a result an innocent man may have been convicted.”  State v. Malaski, 330 N.W.2d 447, 451 (Minn. 1983) (quotation omitted).  In determining whether the state committed misconduct warranting a new trial, we look to the closing argument as a whole, rather than to selected phrases and remarks.  State v. Walsh, 495 N.W.2d 602, 607 (Minn. 1993).  A defendant’s failure to object implies that the comments were not prejudicial.  State v. Whittaker, 568 N.W.2d 440, 450 (Minn. 1997).

            We observe no error in the prosecutor’s comments.  First, the alleged prejudicial statement did not contain the misrepresentation that appellant asserts: that Biederman made an in-court identification of appellant.  Second, the prosecutor clearly acknowledged that the state bore the burden to identify appellant as an attacker.  After the unobjected-to statement, the prosecutor went on to outline the evidence and stated: 

And that’s where we get back to Officer Lazarchac’s testimony.  We don’t want to get the wrong guy.  They are out there.  They haven’t seen what happens.  They are relying on Officer Biederman, and he gives them a description and you heard Officer Lazarchac tell you about that description.  The clothing, the shirt with the ’03 on the back.  And he told you, as clearly as he could, that when he got down there to that area, there was nobody else that even remotely fit that description. . . . And in this case, Officer Lazarchac told you that he confirmed with Officer Biederman that he had the right guy.

 

This is an accurate statement of the evidence.  Third, the alleged misstatement of the facts was a single isolated sentence in the closing argument.  Fourth, defense counsel in closing clearly highlighted for the jury the lack of in-court identification by Biederman.  See State v. Whisonant, 331 N.W.2d 766, 769 (Minn. 1983) (holding that defendant waived claim of prosecutorial misconduct in closing argument when defense counsel chose to respond to prosecutor’s closing argument rather than object).  Because appellant has not identified a plain error, we conclude that he failed to establish prosecutorial misconduct.

            Affirmed.