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

Alan L. Mitchell, St. Louis County Attorney, 100 North Fifth Avenue West, Room 501, Duluth, MN 55802-1298 (for respondent)

Considered and decided by Lansing, Presiding Judge, Harten, Judge, and Thoreen, Judge.^*

HARTEN, Judge

Appellant Thomas Jay Drift challenges his convictions for gross misdemeanor domestic assault and terroristic threats, alleging that they are not supported by sufficient evidence. He also alleges that his past legal representation by the district judge who was then a practicing attorney requires that this case be reversed and that he presented newly discovered evidence entitling him to a new trial or acquittal. We disagree and affirm.

On September 5, 1996, victim Cynthia St. John contacted Duluth police. She told Sergeant Roger Waller that appellant Thomas Jay Drift had struck her and threatened to kill her. Waller later observed and photographed bruises and scabbing on St. John's face. Appellant was charged with gross misdemeanor domestic assault pursuant to Minn. Stat. § 609.2242, subd. 2 (1996), and terroristic threats pursuant to Minn. Stat. § 609.713, subd. 1 (1996). The case proceeded to a jury trial.

St. John testified that on September 5, 1996, appellant struck her face with the back side of his hand and said that if she ever left him he would kill her and her body would be found in the trunk of his vehicle. She also testified that he had hit her on two prior occasions. She said that one assault occurred in Virginia, Minnesota, at the home of appellant's aunt; the police were called but when they arrived appellant prevented her from communicating with them and from making any noise until they left. Waller testified that he interviewed St. John and saw facial injuries consistent with her account. The prosecution also introduced the photographs showing the bruises and scabs on her face.

Appellant did not testify. The defense presented appellant's friend, Steven Soukop, as a witness. Soukop testified that he was with appellant and St. John during the entire time of their encounter when the alleged criminal conduct occurred. He testified that appellant did not strike St. John and that he did not see any injuries to her face.

The jury returned guilty verdicts as to both counts. Appellant moved for a new trial on the grounds of newly discovered evidence. He submitted affidavits from his aunt and Virginia police indicating that the police did not respond to a call at his aunt's house on the date of the alleged prior assault. The district court denied the motion. This appeal followed.

1. Sufficiency of Evidence

In determining whether evidence in the record is sufficient to support an appellant's convictions, this court views the evidence in the light most favorable to the jury's verdict and assumes that the jury believed the state's witnesses and disbelieved any evidence to the contrary. State v. Spaeth, 552 N.W.2d 187, 192 (Minn. 1996).

A conviction may rest upon the testimony of a single credible witness. State v. Johnson, 568 N.W.2d 426, 435 (Minn. 1997). Here, St. John's testimony alone provides sufficient evidence to support the convictions. Nonetheless, St. John's testimony was corroborated by the photographs of her injuries and the testimony of the police officer. The record contains ample evidence to support appellant's convictions.

2. Judge's Former Representation of Appellant For the first time on appeal, appellant alleges that it was error for the trial judge to preside over the case because the trial judge had represented appellant previously when she practiced law before becoming a judge.

Issues first raised on appeal and not presented to the trial court may not be considered on appeal. State v. Wagner, 555 N.W.2d 752, 757 (Minn. App. 1996). Appellant failed to object, request that the trial judge recuse herself, or otherwise raise the issue below. Accordingly, we need not consider the issue.

3. Newly Discovered Evidence

Appellant argues that he is entitled to a new trial because of purported newly discovered evidence that the local police did not respond to a call at the Virginia home of his aunt on August 30, 1996, as alleged by St. John.

When determining whether to grant a new trial based upon newly discovered evidence, a defendant must prove that (1) the evidence was not known to the defendant or his counsel at the time of the trial, (2) the evidence could not have been discovered through due diligence before trial, (3) the evidence is not cumulative, impeaching, or doubtful, and (4) the evidence would probably produce an acquittal or a more favorable result. Rainer v. State, 566 N.W.2d 692, 695 (Minn. 1997).

In denying appellant's motion, the district court found that appellant failed to satisfy three of the four new trial requirements because he could have discovered the evidence before trial, the evidence was mere impeachment evidence, and that, even if received, it probably would not have produced a more favorable result. In February 1997, five months before trial, the prosecution gave the appellant notice that it intended to introduce evidence of the alleged August 30th incident at appellant's aunt's house. Appellant could have investigated the incident and discovered the evidence prior to trial. Moreover, the evidence was impeachment evidence that likely would not have changed the result. We affirm the district court's denial of defendant's motion for a new trial based on newly discovered evidence.

Affirmed.

^*Retired judge of the district court, serving on the Minnesota Court of Appeals by appointment pursuant to Minn. Const. Art. VI, § 10.