This opinion will be unpublished and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

A04-218

 

State of Minnesota,

Respondent,

 

vs.

 

Jalale Amaro Deresu,

Appellant.

 

Filed June 28, 2005

Affirmed; motion to strike granted

Randall, Judge

 

Hennepin County District Court

File No. 030733610

 

 

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

 

David Ornstein, Bloomington City Attorney, Mark A. Horton, Assistant City Attorney, City of Bloomington, 1800 West Old Shakopee Road, Bloomington, MN  55431 (for respondent)

 

Jalale A. Deresu, 4813 - 71st Avenue North, Brooklyn Center, MN  55429 (appellant pro se)

 

            Considered and decided by Randall, Presiding Judge; Toussaint, Chief Judge; and Huspeni, Judge. *

U N P U B L I S H E D   O P I N I O N

RANDALL, Judge

            Appellant Jalale Amaro Deresu challenges her conviction of failing to stop at a red light in violation of Minn. Stat. § 169.06, subd. 4(a) (2002), arguing that the prosecution’s witness was not credible and therefore the evidence was insufficient to support the conviction.  We conclude the evidence was sufficient to support the conviction.  We affirm. 

FACTS

            On October 5, 2003 appellant, Jalale Amaro Deresu, was cited by a state trooper for violating Minn. Stat. §169.06, subd. 4(a) (2002), after an accident at the intersection of Interstate 494 and Highway 169, in the City of Bloomington, County of Hennepin.  Respondent, State of Minnesota, charged appellant with running a red light and hitting a truck that was turning left on a green arrow.

            At the bench trial held on January 23, 2004, the district court heard testimony from numerous witnesses.  The parties disagreed over who had the right of way.  Appellant and her passenger, Misrak Senbeta, testified that appellant had the green light.  Jason Johnson, the driver of the other vehicle involved in the accident, testified that he was turning on a green arrow when he entered the intersection.  Lori Cook, an independent witness to the accident, testified as Johnson did, namely, that the light for appellant was red.  After the accident, Cook, who is a paramedic, checked to see if appellant or her passenger were injured.  At that time, according to appellant, she asked Cook if the light
was green for her.  Appellant claims that Cook responded that it was green.  At trial, Cook denied telling appellant the light was green and testified that appellant ran the red light.  Appellant points to what she believes are other inconsistencies between the accident report and Cook’s testimony.

                The district court found appellant guilty of violating Minn. Stat. § 169.06, subd. 4(a).[1]  Appellant was fined $67 and charged a $63 surcharge.  A transcript of the January 23, 2004 proceedings is not available because the audio recording equipment malfunctioned.  On appeal, appellant filed a proposed statement of the proceedings.  The state filed amendments and objections to the proposed statement.  The state’s objections address, among other things, the appendix to appellant’s brief, which includes the accident report not introduced at the hearing.  The district court filed a short statement of the proceedings, infra, expressly approving the state’s amendments and objections.

D E C I S I O N

In a challenge to the sufficiency of the evidence, this court reviews the record in a light most favorable to the verdict.  Davis v. State, 595 N.W.2d 520, 525 (Minn. 1999).  It is not the province of the appellate courts to reconcile conflicting evidence.  Fletcher v. St. Paul Pioneer Press, 589 N.W.2d 96, 101 (Minn. 1999).  If there is reasonable evidence to support the trial court’s findings of fact, a reviewing court will not disturb
those findings.  Id.  The reviewing courtwill leave credibility determinations to the fact-finder and assume that the fact-finder believed the state’s evidence and disbelieved evidence to the contrary.  Dale v. State, 535 N.W.2d 619, 623 (Minn. 1995).   

Appellant argues that the trial court erred when it found her guilty, claiming Cook’s testimony was “not only untrue but also inconsistent.”  First, Appellant argues that Cook’s testimony is not credible because appellant and appellant’s passenger witness, Senbeta, gave conflicting testimony.  Cook testified that the light for appellant was red.  Appellant and Senbeta testified that the light for appellant was green.

Appellant also claims another inconsistency in that Cook testified she was pulled over on the right shoulder of the road when appellant passed her, and the state trooper’s accident report states that Cook was behind appellant.  Appellant argues that Cook’s testimony is irreconcilable with the trooper’s report and therefore not credible. 

Respondent, in turn, argues that (1) any conflicts in testimony are properly resolved by the fact-finder, here, the district court, and (2) appellant improperly relies on police documents that were not received into evidence.

   There is no transcript of the proceedings due to a technical malfunction.  Based upon the proposed statements of the parties and the trial testimony, the district court determined in its statement of the proceedings that,

I, as the trial judge, approve the proposed statements of the parties, subject to the following:

 

I have a vivid recall of this case because of the accident and the location (494 and 169).

 

Appellant’s statement of the case is accurate as to her testimony.  However, the respondent’s (State of Minnesota) statement as to the testimony of the witnesses is also correct.

 

It should be noted that the driver, independent witness, of the Allina ambulance was stopped at the intersection and testified that the appellant ran the red light.  The driver, Lori Cook, denied ever telling appellant that the appellant had a green light.

 

I also approve of the State’s amendments and objections.

 

Thus, the trial court found that Cook was credible.  See Dale, 535 N.W.2d at 623 (credibility of witnesses is determined by the fact-finder).  She was an independent witness and in a position at the time of the accident to observe appellant’s traffic signal.  Cook testified that the light was red for appellant and denied ever telling appellant otherwise.  The district court found Cook’s testimony more credible than appellant’s and more credible than that of appellant’s passenger, Senbeta.  

We do not base our decision on the issue of any claimed inconsistency between the state trooper’s accident report and Cook’s testimony.  Respondent made a hearsay objection when appellant attempted to read the accident report into the record at trial.  As a result, the report was not received into evidence.  The accident report, along with appellant’s appendix exhibits B and C, are not part of the record and will not be considered on appeal.  See Minn. R. Civ. App. P. 110.01 (stating that the papers filed in the trial court, the exhibits, and the transcript of the proceedings, if any, shall constitute the record on appeal in all cases).

Even if the accident report had been part of the record, there was no inconsistency between the trooper’s report and Cook’s testimony.  Cook testified that appellant passed her while Cook was pulled over on the right hand shoulder.  In the accident report the state trooper simply wrote that Cook was “behind” appellant.  Cook can simultaneously be “behind” appellant and still be on the right hand shoulder. 

The evidence was sufficient to support the trial court’s conclusion that appellant was guilty.

Affirmed; motion to strike granted.