This opinion will be unpublished and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

A05-164

 

 

State of Minnesota,

Respondent,

 

vs.

 

Carnell Anthony Byrd,

Appellant.

 

 

Filed February 14, 2006

Affirmed

Toussaint, Chief Judge

 

Stearns County District Court

File No. KX-04-2842

 

 

Mike Hatch, Attorney General, Tibor M. Gallo, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

Janelle Kendall, Stearns County Attorney, Stearns County Administration Center, 705 Courthouse Square, St. Cloud, MN 56303 (for respondent)

 

John M. Stuart, State Public Defender, Susan Andrews, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)

 

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

U N P U B L I S H E D   O P I N I O N

TOUSSAINT, Chief Judge

            Appellant Carnell Anthony Byrd claims that he is entitled to a new trial because the trial court infringed on his right to the free exercise of religion and that his convictions of first-degree aggravated robbery and possession of a gun by a felon should be reversed because the evidence was insufficient to support the convictions.  Because there is no record support of infringement of appellant’s right to the free exercise of religion and no prejudice to him from the alleged infringement, we conclude that he is not entitled to a new trial, and because there is sufficient evidence to support the conviction on both counts, we affirm.

D E C I S I O N

1.         Free Exercise of Religion

Before trial, appellant appeared wearing a cross.  The trial court told him that he could decide whether the cross would remain visible or be concealed under his shirt and that, if he chose to leave it visible, he was entitled to a hearing on the matter.  Appellant, without speaking, placed the cross under his shirt and did not refer to it again.[1] He argues that he is entitled to a new trial because his right to the free exercise of religion was violated.

When a “district court arguably infringed on [a] defendant's constitutional right to the free exercise of religion by ordering him to wear his cross inside his shirt during trial, the violation was not an error affecting a fundamental trial right that warrants a new trial.”  State v. Tate, 682 N.W.2d 169, 171 (Minn. App. 2004), review denied (Minn. Sept. 29, 2004).  Here, appellant was not ordered to wear his cross inside his shirt; he chose to do so after being informed that the choice was his and that he was entitled to a hearing on the matter.  There was no infringement of his right to the free exercise of religion, and, even if there had been, it did not affect a fundamental right and would not entitle appellant to a new trial.

2.         Sufficiency of the Evidence

            In considering a claim of insufficient evidence, this court’s review is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, is sufficient to allow the jurors to reach the verdict that they did.  State v. Webb, 440 N.W. 2d 426, 430 (Minn. 1989).  The reviewing court must assume 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).  This is especially true when resolution of the matter depends mainly on conflicting testimony.  State v. Pieschke, 295 N.W. 2d 580, 584 (Minn. 1980).

            Appellant argues that his robbery conviction should be reversed because the state failed to prove that he was the person who committed the robbery.  The convenience store clerk who was robbed identified the robber to the police as a man of appellant’s approximate height and build, wearing a checked jacket.   A week later, she identified appellant without hesitation in a photo lineup.  She testified in court that appellant was “one and the same” as the person who robbed her.

            “Where a conviction is based on eyewitness identification at trial following a pretrial photographic identification, that conviction will be reversed only if the photographic ‘identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.’” Seelye v. State, 429 N.W. 2d 669, 672 (Minn. App. 1988) (quoting Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 971 (1968)).  Appellant does not allege that the photographic identification was impermissibly suggestive so as to provide a basis for reversal.

            Appellant also argues that his conviction of possession of a gun by a felon should be reversed because the state failed to prove that the gun used in the robbery was not a replica.  The clerk testified that the robber held a gun “about a foot, foot and a half” away from her face, that he was holding it in his right hand, “straight in front of him, and . . . to the side,” that it was a semiautomatic, that it looked like “a real gun” and she believed it to be a real gun, that he cocked the gun by racheting the top slide back, that she saw the chamber was empty,  and that she was scared because she did not know for a fact whether the gun was loaded or not.  Her testimony provided sufficient evidence for the jurors to find that appellant was in possession of a gun and that appellant was the person who robbed the store.

Affirmed.