Abdulkhadir Hussein Ali, petitioner, Appellant, vs. State of Minnesota, Respondent.

Abdulkhadir Hussein Ali, petitioner, Appellant, vs. State of Minnesota, Respondent. A05-969, Court of Appeals Unpublished, May 9, 2006.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-969

 

Abdulkhadir Hussein Ali, petitioner,

Appellant,

 

vs.

 

State of Minnesota,

Respondent.

 

Filed May 9, 2006

Affirmed

Klaphake, Judge

 

Olsmted County District Court

File No. K2-02-4730

 

Bradford Colbert, Legal Assistance to Minnesota Prisoners, 875 Summit Avenue, Room 254, St. Paul, MN  55105 (for appellant)

 

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and

 

Raymond F. Schmitz, Olmsted County Attorney, David F. McLeod, Assistant County Attorney, Government Center, 151 Fourth Street S.E., Rochester, MN  55904 (for respondent)

 

            Considered and decided by Toussaint, Chief Judge; Klaphake, Judge; and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N

KLAPHAKE, Judge

            Appellant Abdulkhadir Hussein Ali was charged with a third-degree controlled-substance crime in violation of Minn. Stat. § 152.023, subds. 1(1), 3(a) (2002).  A confidential reliable informant (CRI) for the Rochester Police Department arranged to make a controlled buy of crack cocaine at a mall from an individual known by the name of "2-Fo."  Before the controlled buy took place, the CRI picked appellant out of a photo lineup of six people, indicating that he was 2-Fo.  Consistent with departmental procedure for a controlled buy, the officer searched the CRI, outfitted him with a listening device, provided him with the "buy money," and arranged to videotape the buy.  Appellant sold the CRI what was later determined to be .4 grams of crack cocaine.

            Appellant waived a jury trial, and the trial was held before the court.  Appellant's theory of the case was that although he was one of three individuals present at the scene of the controlled buy, he was not the person who sold the drugs to the CRI.  The district court found that the state had proved beyond a reasonable doubt that appellant made the illegal drug sale and found him guilty of the charged offense.

            Appellant filed a petition for postconviction relief, challenging the sufficiency of the evidence on identity.  The court denied the petition, and this appeal followed.  Appellant continues to assert that the evidence at trial was insufficient to show that he was the person who sold the drugs, and he challenges the credibility of the CRI.  Because the evidence was sufficient to support the conviction and because we defer to credibility determinations made by the district court, we affirm.

D E C I S I O N

            "A postconviction court's decision will not be overturned unless there has been an abuse of discretion."  Dukes v. State, 660 N.W.2d 804, 810 (Minn. 2003) (quotation omitted), cert. denied, 540 U.S. 1107, 124 S. Ct. 1069 (2004).

            A petitioner seeking relief in a postconviction petition has the burden of establishing the facts by a preponderance of the evidence.  Minn. Stat. § 590.04, subd. 3 (2004).  When reviewing a sufficiency of the evidence claim, an appellate court will use the same standard when the case is tried to the court as when it is tried to a jury.  State v. Cox, 278 N.W.2d 62, 65 (Minn. 1979).  In such a challenge, an appellate court's "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 allow the court to reach the verdict it did.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  The appellate court will assume that the district court "believed the state's witnesses and disbelieved any evidence to the contrary."  See State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).  "The weight and credibility of the testimony of individual witnesses" is for the district court to determine.  Id.  This court will defer to the district court's credibility determinations.  State v. Kramer, 668 N.W.2d 32, 37 (Minn. App. 2003), review denied (Minn. Nov. 18, 2003).

            Appellant argues on appeal that the primary evidence against him consisted of photos of the offense being committed and that he was not the person pictured in the photos.  As the postconviction court ruled, the evidence before the district court consisted not merely of these photos, but also testimony from the CRI and several police officers, as well as audio and videotaped surveillance.  The CRI identified appellant as the person who sold him cocaine, and an officer at the scene of the sale also identified appellant as the person who handed an item to the CRI.  Another officer corroborated this, testifying that he observed the CRI at the mall as he approached appellant to make the controlled buy.  Further, the CRI and several officers identified appellant as 2-Fo.  This evidence is sufficient to support the determination that appellant made the illegal controlled-substance sale.

            Next, regarding the CRI's credibility, appellant argues that the CRI's testimony is suspect because the police paid him at least $1,900 over a period of four months.  Appellant further notes that the police never recovered any of the buy money and that the car that the suspect drove away in was not registered in appellant's name.  All of these arguments go to the credibility of the CRI, and because it is within the district court's province to assess the credibility of witnesses, we defer to those determinations.  Kramer, 668 N.W.2d at 36.

            We conclude that the evidence was sufficient to uphold appellant's conviction of the third-degree controlled-substance crime, and the district court did not abuse its discretion in denying appellant's petition for postconviction relief.

            Affirmed.