State of Minnesota, Respondent, vs. Antwon Samuel Evans, Appellant.

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480 A. 08, subd. 3 (1996).

STATE OF MINNESOTA
IN COURT OF APPEALS
C8-97-1888

State of Minnesota,
Respondent,

vs.

Antwon Samuel Evans,
Appellant.

Filed July 21, 1998
Affirmed
Forsberg, Judge*

Ramsey County District Court
File No. K497105

Hubert H. Humphrey III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN 55102 (for respondent)

John M. Stuart, State Public Defender, Scott G. Swanson, Assistant State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)

Considered and decided by Lansing, Presiding Judge, Forsberg, Judge,* and Holtan, Judge.**

U N P U B L I S H E D  O P I N I O N

FORSBERG, Judge

Appellant Antwon Samuel Evans challenges the sufficiency of evidence supporting his conviction for aggravated robbery with a dangerous weapon. Evans also claims that evidence supporting his conviction should have been suppressed because arresting officers detained appellant without reasonable suspicion. We affirm.

FACTS

On April 1, 1997, at approximately 1:00 a.m., taxicab driver Alfredo Jorge picked up two male passengers on Humboldt Avenue in St. Paul. Upon reaching their destination, the passenger sitting directly behind him got out of the cab while the passenger seated to the right asked Jorge for change. When the man outside moved to block Jorge's door, the man inside robbed Jorge at knifepoint. The two men fled at Earl Street and Suburban Avenue. Jorge described the passenger who held a knife to his head as a black male, between 5'9 and 5'10'', about 160 pounds, wearing a blue jacket, blue jeans, and a baseball-type hat with afro-type hair puffing out under the hat. The police officers responding to the robbery call canvassed the immediate area to no avail.

The officers proceeded to 513 Humboldt, where the call for the cab originated. The officers spoke to Vanessa Belmares and Violeta Lopez, who confirmed that the call was placed from their apartment by two black males whose real first names they did not know. The women provided physical descriptions of the two men that matched Jorge's description. Lopez told the officers that she gave a piece of paper with her phone number on it to one of the men.

After talking to the two women, the officers immediately returned to Earl Street and Suburban Avenue at around 3:00 a.m. Upon their return, the officers spotted Evans, who matched the description of one of the robbery suspects, walking down Earl Street. The officers approached Evans on foot and spoke to him. Evans told the officers he was on a walk from Preble Street (several miles away) because he was grieving the death of friend in Chicago. The officers called Jorge, the victim, back to the scene of the robbery to identify the suspect. With the lights of two squad cars illuminating the suspect, Jorge positively identified Evans as the man who robbed him at knifepoint.

Evans was arrested and charged with aggravated robbery in the first degree with a dangerous weapon, in violation of Minn. Stat. § 609.245, subd.1, and § 609.11 (1996). A search at the Adult Detention Center produced a piece of paper in the front pocket of Evans' jeans with Violeta Lopez's name and phone number written on it. The jury found him guilty of aggravated robbery with a dangerous weapon. Evans now appeals, seeking reversal of his conviction.

D E C I S I O N

I.

Evans first argues that the police officers did not have reasonable suspicion to detain him and the evidence derived from this illegal detention - the victim's on-sight identification and the paper found in this pocket - should be suppressed. Evans raises this issue for the first time on appeal. It is well established that a reviewing court will generally not consider issues that were not raised in the district court, even if the issues involve constitutional questions of criminal procedure. See State v. Sorenson, 441 N.W.2d 455, 457 (Minn. 1989) (declining to address validity of investigative stop when it was not specifically raised at trial court level). Evans declined to bring this issue before the trial court at either the omnibus or Rasmussen hearings, where the trial court would have had adequate opportunity to address it. Therefore, we decline to address the issue here.

II.

Evans contends the evidence was insufficient to prove he was one of the robbers. When a criminal conviction is challenged on sufficiency of evidence grounds, this court's review is limited to "a painstaking analysis of the record to determine whether the evidence, 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) (citations omitted). 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) (quoting State v. Wahlberg, 296 N.W.2d 408, 411 (Minn. 1980)).

Even though it needs scrutiny on review, eyewitness testimony can, standing alone, support a guilty verdict. State v. Gluff, 285 Minn. 148, 149, 172 N.W.2d 63, 64 (1969). Corroboration may be required when a single witness's identification of the defendant is made after only fleeting or limited observation. State v. Walker, 310 N.W.2d 89, 90 (Minn. 1981). Jorge unequivocally identified Evans as the person who robbed him at knifepoint a few hours after the robbery occurred and again at trial.

Evans argues that Jorge's identification is unreliable on the basis of five factors laid out in Neil v. Biggers, 409 U.S. 188, 199-200, 93 S. Ct. 375, 382 (1972). Minnesota courts assess identification by an eyewitness by considering five factors laid out in State v. Burch, 284 Minn. 300, 315-16, 170 N.W.2d 543, 553-54 (1969):

(1) the opportunity of the witness to see the defendant at the time the crime was committed; (2) the length of time the person committing the crime was in the witness' view; (3) the stress the witness was under at the time; (4) the lapse of time between the crime and the identification; and (5) the effect of the procedures followed by police as either testing the identification or simply reinforcing the witness' initial determination that the defendant is the one who committed the crime.

Jorge testified that the light inside the cab was on when the two male passengers entered the cab on Humboldt and he was thus able to describe one of them. Because the passengers gave several different destinations before asking Jorge to go to 1032 Earl, Jorge was at one point forced to stop the cab, turn the light on, briefly converse with the man sitting to the right of him in the back seat about the directions. During the brief conversation, Jorge looked at the man "eye to eye." Consequently, in this case, Jorge's observation of Evans did not solely occur when Jorge was at knifepoint. See State v. Capers, 451 N.W.2d 367, 370 (Minn. App. 1990) (noting that factors two and three are influenced by fact that someone observing fleeing burglar inevitably has very limited time and is under stress), review denied (Minn. Apr. 25, 1990). In addition, Jorge identified Evans approximately three hours after the robbery occurred, but only one hour after he finished giving a report to police officers responding to the robbery and returned home. The police deliberately placed the squad car lights on Evans so that Jorge could make an accurate identification.

Belmares' and Lopez's testimony corroborates Jorge's identification. Belmares admitted that she called the cab for two men that were at her apartment at 513 Humboldt until about midnight. She only knew their nicknames, "Twon" and "Snoop." She identified Evans in the courtroom as the man she knew as "Twon." Lopez similarly identified Evans as one of the two men she and Belmares had spent the evening with. She saw him and the other man get into the cab. Lopez also testified that, at Evans' request, she gave him a knife the night of the robbery. A couple of hours earlier, she had handed Evans a note with her two phone numbers on it. Together, Belmares' and Lopez's testimony established that, before the robbery, Evans was at the Humboldt apartment when the cab was called, received a knife and the note from Violeta Lopez with her phone numbers on it that was later found in his front pocket, and stepped into Jorge's cab with another black male.

Viewed in the light most favorable to the verdict, Jorge's identification, buttressed by the corroborating testimony, is sufficient to support the jury's verdict. We have considered appellant's supplemental pro se brief questioning Jorge's and Lopez's credibility and conclude it is without merit. See State v. Daniels, 361 N.W.2d 819, 826 (Minn. 1985) (credibility determinations are for the jury).

Affirmed.

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

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