Ramsey County District Court

File No. K2951716

Hubert H. Humphrey, III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for Respondent)

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

John M. Stuart, State Public Defender, Marie L. Wolf, Assistant State Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN 55414 (for Appellant)

Considered and decided by Lansing, Presiding Judge, Crippen, Judge, and Mulally, Judge.

This appeal is from a judgment of conviction for first-degree aggravated robbery. See Minn. Stat. § 609.245, subd. 1 (1994) (inflicting bodily harm during commission of robbery). Appellant James Nesbitt contends there is insufficient evidence to support the conviction. We affirm.

The victim testified that two men confronted him, and one of them struck him on the side of his head. He testified that he gave his assailant a dollar bill, but the man demanded his wallet, and when he complied, returned the dollar bill to him. The altercation was witnessed by a St. Paul police officer who was driving by and saw the victim being pressed up against a wall by Nesbitt, who was holding what appeared to be a silver handgun pressed against the victim's temple. The officer pursued Nesbitt and searched him, finding a cigarette lighter made to look like a pistol. The officer testified that he saw the Nesbitt make a striking motion with what appeared to be a weapon. The victim, however, testified only that he was struck with a closed fist.

Nesbitt argues that the police officer lacked a good vantage point to view the altercation, and that the victim's medical disability and alcoholism call his testimony into question. The credibility of the witnesses, however, is for the jury to determine. State v. Lodermeier, 539 N.W.2d 396, 397 (Minn. 1995). The officer's initial assumption of a "gang-style" execution is not inconsistent with the facts observable at the time, that is a man holding a handgun-like object to the temple of his victim. Although the silver object turned out to be a facsimile rather than a real weapon, that does not make the officer's testimony unreliable. The officer's testimony essentially corroborated the testimony of the victim, and vice-versa.

Nesbitt urges this court to reverse based on a "grave doubt" about the sufficiency of the evidence. See, e.g., State v. Housley, 322 N.W.2d 746, 751 (Minn. 1982). This court has reversed based on "grave doubt" about the sufficiency of the evidence where the state's proof relied on circumstantial evidence. See State v. Formo, 416 N.W.2d 162, 165-67 (Minn. App. 1987) (state's circumstantial evidence of arson left "grave doubt," requiring reversal), appeal dismissed, 426 N.W.2d 865 (Minn. 1988); State v. Roberts, 350 N.W.2d 448, 451 (Minn. App. 1984) (circumstantial evidence of defendant's felonious intent on entering house was insufficient, leaving "grave doubt" as to defendant's guilt of burglary). Nesbitt's conviction, however, is supported by the testimony of two eyewitnesses. Even assuming this court could reverse based on "grave doubt" about eyewitness testimony, the officer's initial assumption of a gang execution, his perception of an assault with a gun, and the fact that Nesbitt returned a dollar bill to the victim would not create a "grave doubt" about Nesbitt's guilt. Although Nesbitt testified that he struck the victim only because he used a racial epithet, the credibility of this testimony compared with that of the victim was for the jury to determine. See State v. Engholm, 290 N.W.2d 780, 784 (Minn. 1980) (jury determines credibility and weight to be given to testimony of any individual witness).

Affirmed.

[ ]^* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.