State of Minnesota, Respondent, vs. James Allan Lyman, Appellant. CX-98-2311, Court of Appeals Unpublished, August 24, 1999.

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).

STATE OF MINNESOTA
IN COURT OF APPEALS
CX-98-2311

State of Minnesota,
Respondent,

vs.

James Allan Lyman,
Appellant.

Filed August 24, 1999
Affirmed
Kalitowski, Judge

Anoka County District Court
File No. K89714880

Mike Hatch, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Robert M.A. Johnson, Anoka County Attorney, M. Katherine Doty, Assistant County Attorney, Anoka County Government Center, 2100 Third Avenue, 7th Floor, Anoka, MN 55303 (for respondent)

Lawrence W. Pry, Assistant State Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN 55414 (for appellant)

Considered and decided by Randall, Presiding Judge, Kalitowski, Judge, and Schumacher, Judge.

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

KALITOWSKI, Judge

Appellant James Allan Lyman contends there was insufficient evidence to convict him of criminal damage to property and raises various other challenges to his conviction in a pro se brief. We affirm.

D E C I S I O N

In a challenge to the sufficiency of the evidence, 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 they did. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). A 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). "A jury normally is in the best position to evaluate circumstantial evidence, and * * * [the jury's] verdict is entitled to due deference." Webb, 440 N.W.2d at 430.

A person is guilty of first-degree criminal damage to property if the person causes damage to the physical property of another without the latter's consent and if the damage reduces the value of the property by more than $500 measured by the cost of repair and replacement. Minn. Stat. § 609.595, subd. 1(3) (1996). A person is criminally liable for a crime committed by another if the person "intentionally aids, advises, hires, counsels, or conspires with or otherwise procures the other to commit the crime." Minn. Stat. § 609.05, subd. 1 (1996). The statute for aiding and abetting requires more than mere "inaction or passive acquiescence" to impose liability as a principal, but a jury may infer the requisite state of mind for a conviction of aiding and abetting when the defendant plays "some knowing role in the commission of the crime and takes no steps to thwart its completion." State v. Pierson, 530 N.W.2d 784, 788 (Minn. 1995). Factors from which a criminal intent may be inferred include presence, companionship, and conduct before and after the offense. Id.

Appellant argues there was insufficient evidence at trial to support his conviction. We disagree. The record indicates: (1) police pulled over a car in which appellant was riding near the scene of the damage; (2) witnesses identified the car; (3) one witness identified appellant as the person he saw at the crime scene who ran to the getaway car and fled the scene; (4) police found a tool that could have caused the damage to the property in the getaway car, accessible to both the driver and appellant; (5) appellant intentionally misidentified the driver of the car to police; (6) the clerk at a nearby convenience store identified the driver of the car as the person who came into the store asking for directions to the location of the crime; and (7) appellant admitted that he went to a convenience store with the driver sometime that night.

Further, the factors regarding criminal intent support appellant's conviction. Appellant was present at the crime, he admits that he and the driver spent the evening together, and his conduct after the crime indicated criminal involvement. Appellant argues his mere presence at the scene of the crime is not enough to justify accomplice liability. See State v. Ostrem, 535 N.W.2d 916, 924 (Minn. 1995) (stating that mere presence does not alone prove that a person aided or abetted, because "inaction, knowledge, or passive acquiescence does not rise to the level of criminal culpability"). But a person's presence can be sufficient to impose liability if it somehow aids the commission of the crime. Id. at 924-25 (quoting State v. Parker, 282 Minn. 343, 355-56, 164 N.W.2d 633, 641 (1969)).

There is ample evidence here placing appellant at the scene of the crime and indicating that even if he did not directly cause the damage to the vehicles, by fleeing the scene and later trying to conceal his partner's true identity from the police, his actions contributed to the crime. We conclude the evidence was sufficient to permit the jury to find appellant guilty.

II.

To support a claim of ineffective assistance of counsel, a 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)). In his pro se brief, appellant did not allege facts showing his counsel rendered ineffective assistance, but merely asserted that he was ill-advised to waive his right to an omnibus hearing. From this general allegation, we cannot conclude appellant's counsel's representation fell below an objective standard of reasonableness or that but for counsel's errors the result of the proceeding would have been different. See Townsend v. State, 582 N.W.2d 225, 229 (Minn. 1998) (the mere allegation that the appellant's Sixth Amendment rights were violated was insufficient to justify an evidentiary hearing by the district court). Therefore, appellant does not have a valid ineffective assistance of counsel claim regarding his counsel's advice to waive his omnibus hearing. See Flournoy v. State, 583 N.W.2d 564, 570 (Minn. 1998) (finding appellant did not have a valid claim regarding counsel's failure to bring a Batson challenge).

Finally, we have considered appellant's remaining pro se arguments concerning unconstitutional restitution and alleged evidentiary errors by the district court and conclude they are without merit.

Affirmed.