Milbank Ins. Co. v. Wagemaker, et al. v. Plymouth Plumbing, et al.

may not be cited except as provided by

Minn. Stat. §480 A. 08, subd. 3 (1998).

STATE OF MINNESOTA

IN COURT OF APPEALS

C3-98-1324

State of Minnesota,

Respondent,

vs.

Zachary Lowell Pappas,

Appellant.

Filed May 11, 1999

Affirmed

Crippen, Judge

Hennepin County District Court

File No. 97028378

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

Amy Klobuchar, Hennepin County Attorney, Paul R. Scoggin, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

John M. Stuart, State Public Defender, Paul C. Thissen, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)

Considered and decided by Amundson, Presiding Judge, Crippen, Judge, and Anderson, Judge.

U N P U B L I S H E   D O P I N I O N

CRIPPEN, Judge

Appellant Zachary Pappas challenges his convictions for assault and drive-by shooting, arguing that the evidence was not sufficient to support the convictions. We affirm.

FACTS

Shane Thorn testified that on the evening of January 3, 1997, he and a friend, Raul Ramos, went to Gabby's in northeast Minneapolis. He recalled leaving Gabby's about an hour later. As Thorn was trying to drive out of the parking lot, another vehicle, a BMW driven by appellant, was trying to get into the lot. The drivers began arguing with one another. Thorn got out of his car and when he got about three feet from the BMW, the driver pointed a gun out the window. Thorn put his hands up and stated, "Go ahead and shoot," as he began walking backwards towards his truck. He got in his truck, left the parking lot, and then noticed that the BMW was right behind him. While Thorn drove 60 to 65 miles an hour trying to get away, the BMW pulled up to the right of him and Thorn then heard two gunshots. As Thorn's right tire went flat, the BMW sped up in front of him. Thorn and Ramos noted the BMW license plate number.

Thorn was later shown a photographic line-up with six photographs. He positively identified appellant as the driver of the BMW while it was in the Gabby's parking lot, but he explained that the person in the photo had longer hair that was not as highlighted as the hair of the driver. Thorn observed that on the evening of the encounter, the driver had "short hair, the top was bleached blonde, short on the sides, like a spike hairdo, kind of, blonde highlights in it." The parking lot was lit well enough for Thorn to see the driver's face.

On cross-examination, Thorn testified that the gun was either a nine-millimeter or a .45 and believed it was black. Conflicting with Thorn's testimony, the police report indicated that Thorn had originally told the police that the suspect also got out of the vehicle when Thorn approached him in the parking lot, and that he had described the gun as being a silver semi-automatic that the suspect pointed downwards. On cross-examination, Thorn stated that he did not believe that he told the officer that it was silver or that it was ever pointed downward.

Thorn did not see who shot at him, nor did he know for certain whether the person driving at the time of the shooting was the same driver he had seen earlier. Appellant's counsel played the tape-recording of the 911 call, indicating that while the driver of the suspect vehicle was getting away from Thorn, he and Ramos may have had some confusion as to which vehicle they were attempting to follow.

Raul Ramos testified that he went with Thorn to Gabby's that night. As they were leaving Gabby's parking lot, a black BMW was trying to come into the lot. The driver had a Beatles haircut, short in front, brushed down, sandy blonde, and no facial hair. After a stalemate, they finally got past each other. Thorn and the other driver then rolled down their windows and started arguing. Thorn got out of the truck, and then Ramos got out and started to walk around to the front, where he stopped. Thorn started backing up with his hands up, and Ramos saw that the driver of the BMW had something in his hand, but could not see what. Both Thorn and Ramos got back in the truck and pulled out of the lot. The BMW backed out and followed them. The BMW pulled up to the passenger side of Thorn's truck and Ramos leaned over toward Thorn because he figured the driver was going to shoot, and then they heard two pops of the gun. Ramos leaned back over and saw the gun being pulled back into the car. The driver of the car was the driver whom he saw in the parking lot at Gabby's, and it looked like the driver, not a passenger, had the gun. Thorn then slowed down and the BMW passed. Ramos called 911 and gave Thorn the phone. They saw the license plate; Ramos had no doubt that this was the same vehicle that he saw at Gabby's. On another occasion, an officer showed Ramos a photo lineup, but Ramos was not able to identify anyone.

Officer Chad Hofius testified that in January 1997, he was still in the Field Training Officer Program. He interviewed Thorn and Ramos on the evening of the encounter. He wrote a half-page report at about 3:30 in the morning. He explained that he probably made an error in writing down the color of the suspect vehicle.

Officer Gregory Gordon, who investigated this case, testified as to the photo line-up. Sgt. David Lindman, a forensic scientist in the Identification Division Crime Lab Unit of the Police Department, testified that after conducting tests on the tire, he concluded that the holes were "not inconsistent with a passage of a bullet, but [he could not] say that a bullet made the penetration." The holes were consistent with other holes that he has seen caused by bullets, but he was just not a hundred percent certain that a bullet caused these holes. Officer Gary Bjergo, an accident reconstructionist, testified that the tire had been driven on while flat.

Appellant rested without calling any witnesses.

The jury convicted appellant of second-degree assault in violation of Minn. Stat. § 609.222, subd. 1 (1996), and drive-by shooting in violation of Minn. Stat. § 609.66, subd. 1e (1996).

D E C I S I O N

When considering a challenge to the sufficiency of evidence, an appellate court "must view the evidence in the record in the light most favorable to the jury's verdict and must assume the jury believed the state's witnesses and disbelieved contrary evidence." State v. Robinson, 539 N.W.2d 231, 238 (Minn. 1995). We are to uphold the verdict "if the jury, giving due regard to the presumption of innocence and the state's burden of proving the offender's guilt beyond a reasonable doubt, could have reasonably found the offender guilty." State v. Johnson, 568 N.W.2d 426, 435 (Minn. 1997). A conviction may rest upon the uncorroborated testimony of a single, credible witness. State v. Bliss, 457 N.W.2d 385, 390 (Minn. 1990).

Appellant argues that the case is built on "inconsistent and self-contradictory testimony." Although there are inconsistencies between the police report and the testimony that Thorn gave at trial, as well as minor inconsistencies between Thorn's testimony and that of Ramos, these inconsistencies are to be resolved in favor of the state. See State v. Bergeron, 452 N.W.2d, 918, 924 (Minn. 1990) (inconsistencies in evidence are resolved in favor of state).

Appellant cites State v. Walker, 310 N.W.2d 89, 90 (Minn. 1981), for the argument that when a "single witness' identification of a defendant is made after only fleeting or limited observation, corroboration is required if the conviction is to be sustained." Id. (citing State. v. Spann, 287 N.W.2d 406, 407-8 (Minn. 1979)). Thorn successfully picked appellant out of a photo line-up, demonstrating that his observation of appellant was not so limited. In addition, the BMW was registered to appellant, providing corroborating evidence for the conclusion that it was in fact appellant who was driving the BMW.

Appellant also argues that no one saw the shooter's face at the time of the shooting and proposes what he characterizes as a rational hypothesis that appellant got out of the car at Gabby's or that appellant was not driving the car at the time of the shooting. But both Thorn and Ramos testified that the BMW pulled out of the parking lot and began to follow them right away. It would be logical for the jury to conclude that the driver continued driving, rather than hypothesizing that the driver switched places with the passenger, or got out of the vehicle.

Finally, appellant argues that the jury seemed surprised that appellant did not call an alibi witness, as appellant had promised in his opening statement. The record does not support this conclusion. After the judge had explained to the jury that the parties would be giving their closing arguments the following day, and that the jury may then be sequestered, the jury was excused. Appellant's attorney then commented on the record, "[T]hey looked surprised." But what they looked surprised about is not clear. In addition, the court explained in its jury instructions that the burden of proving guilt is on the state and that appellant does not have to prove his innocence. There is no reason to believe that the jury convicted appellant only because he chose not to call the alibi witnesses originally promised. See State v. James, 520 N.W.2d 399, 405 (Minn. 1994) ("Jurors are presumed to follow instructions." (citation omitted)).

The evidence was sufficient for a jury to conclude that appellant was guilty of both second-degree assault and drive-by shooting.

Affirmed.