Hubert H. Humphrey, III, Attorney General, Robert A. Stanich, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent)

Jeffrey D. Thompson, Rice County Attorney, Rice County Courthouse, 218 Northwest Third Street, Faribault, MN 55021 (for respondent)

John M. Stuart, State Public Defender, Mark F. Anderson, Assistant Public Defender, 2829 University Avenue Southeast, #600, Minneapolis, MN 55414 (for appellant)

Considered and decided by Willis, Presiding Judge, Parker, Judge, and Peterson, Judge.

John Raymond Feneis was convicted of one count of controlled-substance crime in the fifth degree, Minn. Stat. § 152.025, subd. 2(1) (1994), and one count of possession of drug paraphernalia, Minn. Stat. § 152.092 (1994). Feneis appeals, alleging the trial court erred because the evidence was insufficient to support a verdict of guilty. Feneis also claims, by pro se brief, that the court improperly relied on testimony from police informants and then denied him the opportunity to confront these witnesses, that he was denied effective assistance of counsel, and that the jury was not properly instructed on the law. We affirm.

D E C I S I O N

Where there is a challenge to the sufficiency of the evidence, our 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).

1. Sufficiency of the evidence

Feneis argues that the evidence was insufficient to support his convictions as to the charges advanced. He contends that although he worked at the bar, there was no fingerprint evidence to confirm that he had possession of the bag of methamphetamine. He claims that the testimony of the officers alone, as to his possession of the bag, is insufficient to support a conviction. Furthermore, he contends, because Officer Skarupa was wearing photo-tint sunglasses while in the dimly lit bar, his vision was impaired by the dark lenses such that he could not have seen if Feneis had anything in his hand. Therefore, Feneis argues, his conviction should be reversed or the matter remanded for a new trial.

In reviewing a claim of insufficiency of the evidence, we are limited to ascertaining whether, given the facts in the record and the legitimate inferences that can be drawn from those facts, a jury could reasonably conclude that the defendant was guilty of the offense charged. We cannot retry the facts, but must take the view of the evidence most favorable to the state and must assume that the jury believed the state's witnesses and disbelieved any contradictory evidence. If the jury, giving due regard to the presumption of innocence and to the state's burden of proving the defendant's guilt beyond a reasonable doubt, could reasonably have found the defendant guilty, that verdict will not be reversed.

State v. Merrill, 274 N.W.2d 99, 111 (Minn. 1978) (citations omitted). Based on the evidence submitted, the jury found Feneis guilty of both charges.

We observe that Feneis neither objected to the evidence presented nor offered witnesses to discredit the testimony of the state's witnesses. Officer Skarupa testified that although he was wearing tinted glasses, he was standing only about six feet away from Feneis at the time he entered the supper club, and his view was unobstructed. Absent evidence of impaired vision, we cannot say this is an unreasonably long distance that would have prevented Skarupa from having a good view of Feneis.

We also observe that there is ample evidence in the record to support the finding that Feneis was in possession of the bag of methamphetamine. Officer Skarupa testified that he saw Feneis holding the plastic bag after they announced their intent to place him under arrest. Officer Skarupa further testified that he also observed Feneis thrust his hands beneath the bar and, when asked to show his hands, Feneis was no longer holding the plastic bag. Moreover, the arresting officers testified they had been instructed to "watch Feneis's hands" prior to making the arrest. We conclude, therefore, that the jury must have believed the state's witnesses and discounted any contrary inferences. See State v. Pierson, 530 N.W.2d 784, 787 (Minn. 1995). In viewing the evidence, as we must, in the light most favorable to the state, we hold there was ample evidence in the record for the jury to find Feneis guilty of the charges submitted against him. Feneis has not pointed to any evidence to support his arguments. Therefore, this court is without authority to disturb the jury verdict because it would require that we evaluate the evidence and determine credibility, both functions of the jury.

2. Pro Se Arguments

Feneis also argues, by pro se brief, that the court improperly relied on testimony from police informants and then denied him the opportunity to confront these witnesses, that he was denied effective assistance of counsel, and that the jury was not properly instructed on the law.

A criminal defendant is guaranteed the right to confront the witnesses testifying against him. U.S. Const. Amend. VI; Minn. Const. art. I, s 6. The main purpose of the confrontation clause is to secure the defendant's opportunity for cross-examination. State v. Lanz-Terry, 535 N.W.2d 635, 640 (Minn. 1995) (citing Davis v. Alaska, 415 U.S. 308, 315-16, 94 S.Ct. 1105, 1110 (1974)). Furthermore, an accused is guaranteed the right to effective assistance of counsel by the Sixth Amendment to the United States Constitution. McMann v. Richardson, 397 U.S. 759, 771 n.14, 90 S.Ct. 1441, 1449 n.14 (1970). To support a claim of ineffective assistance of counsel, the defendant must show that (1) "counsel's representation fell below an objective standard of reasonableness;" and (2) "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Scruggs v. State, 484 N.W.2d 21, 25 (Minn. 1992) (quoting Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 2064, 2068 (1984)). However, formulating jury instructions and determining which instructions to give are within the trial court's discretion. See State v. Daniels, 361 N.W.2d 819, 831-32 (Minn. 1985) (a "refusal to give requested jury instruction lies within the discretion of the trial court"). The trial court has broad discretion in determining the propriety of a specific instruction. State v. Hysell, 449 N.W.2d 741 (Minn. App. 1990), review denied (Minn. Mar. 15, 1990) (citing State v. Shatto, 285 N.W.2d 492, 493 (Minn. 1979)).

Other than bald allegations, Feneis does not point to any evidence to support his claims. Feneis appears to contend that unreliable informant information was used as evidence to support the state's case against him. However, we are directed to no evidence to show that an informant testified. Feneis was represented by counsel at trial, and counsel had the opportunity to cross-examine the witnesses who testified. We cannot say that this argument has merit.

Similarly, we are not directed to any evidence, as required by Strickland, to show that Feneis was denied effective assistance of counsel, or to any authority to show that the jury instruction was improper. Feneis's cite to United States v. Dougherty, 473 F.2d 1113, 1139 (D.C. Cir. 1972), is misplaced because the trial court is not required to instruct the jury as to its power to disregard the law and the facts. Furthermore, Feneis did not object to the otherwise proper jury instructions given at trial. We conclude that Feneis's pro se claims are without merit.

Affirmed.