This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. sec. 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

CX-97-1312

State of Minnesota,

Respondent,

vs.

James L'Esperance,

Appellant.

Filed April 28, 1998

Affirmed

Harten, Judge

St. Louis County District Court

File No. K1-96-600534

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

Hubert H. Humphrey, III, Attorney General, Robert A. Stanich, Assistant Attorney General, 14th Floor NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent)

Alan L. Mitchell, St. Louis County Attorney, Courthouse, Room 500, 100 North Fifth Avenue West, Duluth, MN 55802-1298 (for respondent)

Considered and decided by Harten, Presiding Judge, Short, Judge, and Amundson, Judge.

U N P U B L I S H E D O P I N I O N

HARTEN, Judge

Appellant James L'Esperance appeals his convictions for false imprisonment, impersonating a police officer, and assault, arguing that the evidence is not sufficient to support the verdict. We affirm.

FACTS

At approximately 2:00 a.m. on June 18, 1996, Charisa Homan was driving to her home in Duluth when she noticed a small silver or gray car following her. When Homan parked in front of her house, a man got out of the car and approached her. The man told Homan that he was an undercover police officer and instructed her to get out of her truck. She complied, and he pushed her over the front seat of her truck and patted her down. He stated that he had reports that Homan was involved with drugs and prostitution. The man pushed Homan toward a house. Homan saw that the man was carrying a golf club. After she asked the man for identification, he hit her across the back of the head with the club. Homan ran toward her house, screaming for her roommate, Mark Danich. The attacker fled to his car. As he backed away in his car, Homan saw the numbers "535" on the license plate. Danich testified at trial that the car was a silver or gray compact with a Minnesota license plate.

On the night of June 17-18, Karolyn Archambeau was working as a bartender. She spoke with a male customer who told her his name was "Jim." Jim left the bar at 1:55 a.m., and Archambeau left approximately ten minutes later. In the parking lot, Archambeau saw Jim walking along the building with a golf club in his hand. She watched him get into a car she described as a gray or silver Dodge Omni with Minnesota license plates.

The police ran a search for Plymouth Horizons and Dodge Omnis registered in Minnesota with the numbers "535" in the license plate. The search uncovered a Plymouth Horizon, license plate "535 JEX," registered to L'Esperance at a Duluth address. On June 21, 1996, police went to examine the vehicle. At that time, there was no front license plate on the car, but the back license plate displayed the numbers "535."

L'Esperance was charged with second-degree assault in violation of Minn. Stat. § 609.222, subd. 1, false imprisonment in violation of Minn. Stat. § 609.255, subd. 2, and impersonating a police officer in violation of Minn. Stat. § 609.475. The case was tried to a jury, which returned a guilty verdict on all three counts. This appeal followed.

D E C I S I O N

L'Esperance argues that the evidence is not sufficient to support his conviction. When considering a challenge based on the sufficiency of the evidence, our review is limited to determining whether the evidence, when viewed in the light most favorable to the verdict, was sufficient to support the jury's verdict. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). We must assume that "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).

L'Esperance argues that because Homan did not say the attacker had glasses or a moustache, because her estimate on the attacker's height does not match, and because she picked another man as her first choice in the photo lineup, there is insufficient evidence to support the conviction. We disagree. Those discrepancies are not crucial and do not require the jury to discredit Homan's testimony. Homan saw the attacker in the dark and for only a few minutes. Most of the time, he was behind her or on a different step. Homan's testimony was not that the attacker did not have glasses or a moustache, but rather that she did not remember whether he did. With respect to the photo lineup, Homan did not eliminate L'Esperance as a possibility, and he was her second choice.

L'Esperance argues that because his car did not have a front license plate, it did not match the description given by Homan. But there is no evidence that the license plate was missing at the time of the assault. The plate was not reported missing until several days after the police identified L'Esperance as a suspect, and the records for L'Esperance's car showed that it had a license plate with the numbers "535." There was substantial evidence relating to the car. The witnesses testified that the car was compact, was silver or gray, and had Minnesota license plates with numbers "535." L'Esperance's car fits that description.

L'Esperance also argues that the evidence is insufficient, because Archambeau reported that his height was 5'4", and he is 5'11". Again we disagree. A reasonable jury could find that Archambeau adequately described L'Esperance despite the height difference because she never stood next to him, she had no means to measure his height, he was sitting for most of the time when she saw him, she correctly described him as having dark hair, glasses, and a moustache, she picked him out of a photo lineup, and she identified him at trial.

We conclude that the evidence sufficiently supports the conviction. Except as to height, Archambeau described L'Esperance accurately. The similarities between her testimony and that of Homan and Danich sufficiently link the man seen by Archambeau to the attack on Homan. The similarities include the golf club, the description of the car, and the proximity between Homan's location at 2:00 a.m. and Archambeau's bar. Both Homan and Archambeau identified L'Esperance at trial, and Archambeau picked him out of a photo lineup. Three witnesses described the color and size of L'Esperance's car. A reasonable jury could find the evidence sufficient to convict L'Esperance.

Affirmed.