In the Welfare of:  B.C.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C6-02-1257

 

 

In the Welfare of:  B.C.

 

 

Filed August 19, 2003

Affirmed

Halbrooks, Judge

 

 

Ramsey County District Court

File No. J301553106, J602552042

 

Seamus R. Mahoney, The Barristers, P.A., 829 Payne Avenue, St. Paul, MN 55101 (for appellant B.C.)

 

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

 

Susan Gaertner, Ramsey County Attorney, Darrell C. Hill, Assistant County Attorney, 50 Kellogg Boulevard West, Suite 315, St. Paul, MN 55102 (for respondent State of Minnesota)

 

 

            Considered and decided by Anderson, Presiding Judge, Shumaker, Judge, and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N

HALBROOKS, Judge

            Appellant B.C. challenges his delinquency adjudication for aiding and abetting or being aided and abetted by another in an assault in the third degree, arguing that the evidence was insufficient to support his delinquency adjudication and that the trial court erred in relying on the out-of-court identifications of B.C. made by Anthony Halverson and Gary Koran.  Because we conclude that there was sufficient evidence to support appellant's adjudication of delinquency and that there was not a substantial likelihood of misidentification, we affirm.

FACTS

On April 23, 2002 at about 7:30 p.m., J.C., age 12, and his little brother were on their way home from the Minnehaha Recreation Center in St. Paul.  When they were about a block and a half from the recreation center, they encountered a man, Mark Hanson, who said some things that frightened them.  J.C. and his brother ran away.  J.C. ran back toward the recreation center and yelled to his cousin, B.C., age 15, who was playing basketball with several other boys, that there was a man "messing with" him.  B.C. and approximately 10-12 boys between the ages of 12 and 16 ran toward J.C., and they all ran together toward the area where J.C. had encountered Hanson.

            The boys approached Hanson on the sidewalk near the intersection of Dale and Van Buren.  One of the boys, J.M., hit Hanson in the face, which caused him to stumble, and then another boy, T.N., hit him in the face again, causing Hanson to fall backward and hit his head on the ground.  It is alleged that B.C. kicked Hanson while he was lying on the ground.  The boys then ran back to the recreation center.  

            Hanson was in a coma when he was taken to the hospital.  He had a cut on the back of his head and blood in and around his brain.  Although he came out of the coma after a few days, the evidence at trial was that Hanson has been unable to work, suffers from dizziness, experiences numbness in his right leg, involuntary muscle action, tooth pain, hearing impairment, and has difficulty walking.

            Witnesses to the incident identified B.C. as one of the people involved in the assault, and the police took B.C. into custody.  A petition was filed alleging B.C. to be a delinquent child because he aided and abetted or was aided and abetted by another in committing an assault in the third degree in violation of Minn. Stat. § 609.223, subd. 1 (2000).

            A court trial was held on June 3 and 19, 2002.  Several independent witnesses testified on behalf of the state that they saw B.C. kick Hanson.  Several of the boys who were with B.C when the incident occurred testified that B.C. did not touch Hanson.  Michael McGonigal, M.D., who treated Hanson, testified as to Hanson's injuries and opined that Hanson suffered substantial bodily harm in the assault.  Following trial, the trial court adjudicated B.C. a delinquent for aiding and abetting or being aided and abetted by another in an assault in the third degree.  The court sentenced B.C. to probation with the requirement that he attend the Boys Totem Town Program.  This appeal follows.

D E C I S I O N

1.            Sufficiency of the Evidence

 

            B.C. argues that the evidence was insufficient to support his adjudication of delinquency for aiding and abetting or being aided and abetted by another in committing assault in the third degree against Mark Hanson.  In a juvenile delinquency proceeding, the state must prove the truth of the petition beyond a reasonable doubt.  In re Welfare of G.L.M., 347 N.W.2d 84, 85 (Minn. App. 1984).  When reviewing a sufficiency of the evidence claim, we evaluate the record and any legitimate inferences that can be drawn from the record in the light most favorable to the adjudication to determine whether the fact-finder could have reasonably concluded that the defendant committed the offense charged.  In re Welfare of S.A.M., 570 N.W.2d 162, 167 (Minn. App. 1997).  It is the exclusive role of the fact-finder to determine the weight and credibility of witness testimony.  State v. Folkers, 581 N.W.2d 321, 327 (Minn. 1998).  In considering a claim of insufficiency of the evidence, this court must assume that the fact-finder believed the state's witnesses and disbelieved any evidence to the contrary.  In re Welfare of L.B., 404 N.W.2d 341, 345 (Minn. App. 1987).  This court will not disturb the verdict if the fact-finder, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could have reasonably concluded that the defendant was guilty of the charged offense.  State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).

            A person commits the crime of assault in the third degree if he "assaults another and inflicts substantial bodily harm."  Minn. Stat. § 609.223, subd. 1 (2000).  An "assault" is defined as:

(1) An act done with intent to cause fear in another of immediate bodily harm or death; or

(2) The intentional infliction of or attempt to inflict bodily harm upon another.

 

Minn. Stat. § 609.02, subd. 10 (2000).  Additionally, a person can be held liable for the crimes of another if he "intentionally aids, advises, hires, counsels, or conspires with or otherwise procures the other to commit the crime."  Minn. Stat. § 609.05, subd. 1 (2000).

Several independent witnesses testified on behalf of the state, including Anthony Halverson, who was driving by when the incident occurred.  Halverson testified that he saw several people hitting Hanson, and then he saw a young black male wearing a red basketball jersey with his hair styled in cornrows kick Hanson.  Later, Halverson went to the recreation center and identified B.C. as the person he saw kick Hanson. 

            Gary Koran was riding as a passenger in Halverson's vehicle.  Koran testified that he saw several people hitting Hanson, which caused Hanson to fall backward and hit his head on the ground.  He testified that a boy wearing a red shirt and blue jeans hit Hanson and then kicked him when he was lying on the ground.  Later, Koran went to the recreation center and identified B.C. as the person he saw hit and kick Hanson.   

            Kristina Jones was a passenger in another car that was driving by when the incident occurred.  She testified that she had been going to the Minnehaha Recreation Center for about two years and that she recognized three of the boys, J.M., T.N., and B.C., from the recreation center.  Jones further testified that she saw J.M. and T.N. hit Hanson and then saw B.C. kick Hanson while he was lying on the ground.  Jones described B.C.'s clothing as blue jean shorts and a red shirt.  When the police later took Jones to the recreation center, she identified B.C. as a person who was involved in the incident.  Jones testified that she was "[a] hundred percent" sure of what she saw.

            T.N. pleaded guilty to assault in the third degree and agreed to testify truthfully in exchange for the state agreeing to withdraw its motion to certify him as an adult.  T.N. testified that J.M. first hit Hanson, then he hit Hanson and knocked him to the ground, and then he started running away.  T.N. stated that he glanced back as he was running and saw B.C. in a kicking position, but didn't actually see B.C. kick Hanson. 

The police seized the clothes that B.C. was wearing on the day of the incident.  The seized clothing included a red basketball jersey with the number three on it and a pair of blue jeans.

In a statement to police, B.C. said that he was present when the incident occurred, but that he only asked Hanson why he was "messing with my cousins," and that he was not involved in the assault.  J.C., B.C.'s cousin, testified that he was wearing a red shirt and blue pants on the night of the incident, that he witnessed the incident, and that he never saw B.C. get close to Hanson.  S.B., a friend of B.C.'s, testified that he witnessed the incident and that he never saw B.C. get close to Hanson.  J.P., another cousin of B.C., and W.R. and J.E., friends of B.C.'s, testified that they saw J.M. and T.N. hit Hanson in the face, causing Hanson to fall back and hit his head on the ground.  They also testified that they did not see B.C. kick Hanson and that B.C. was not close to Hanson during the incident.

The trial court specifically found the testimony of the independent witnesses to be credible.  The court found that Halverson, Koran, and Jones were all able to identify B.C. either by his clothes and unique hairstyle or by name, as the person they saw kick Hanson when he was lying on the ground.  Because determining the weight and credibility of witness testimony is the exclusive role of the fact-finder, we will not overturn the trial court's credibility determinations on appeal.  The witnesses that testified that B.C. did not kick Hanson were all either B.C.'s cousins or friends, and it was reasonable for the trial court to have viewed their testimony as being biased and, therefore, less credible than the independent witnesses.  Based on this record, there was sufficient evidence for the trial court to have found that B.C. kicked Hanson and for the court to have adjudicated B.C. delinquent for aiding and abetting or being aided and abetted by another in committing assault in the third degree.

2.            Identification

 

B.C. argues that the trial court erred in relying on the out-of-court identifications of B.C. made by Anthony Halverson and Gary Koran.  B.C. does not assert that the out-of-court identifications violated due process and should not have been admitted.[1]  But he contends that the court should have discounted the evidentiary weight of the identifications because they were unreliable and made without constitutional safeguards. 

Generally, when considering the admissibility of out-of-court identifications, we examine whether the identification procedures were "so impermissibly suggestive as to create a very substantial likelihood of irreparable misidentification."  State v. Harris, 405 N.W.2d 224, 229 (Minn. 1987) (quotation omitted).  First, we determine whether the identification was unnecessarily suggestive.  State v. Taylor, 594 N.W.2d 158, 161 (Minn. 1999) (stating that this inquiry involves determining whether the defendant was unfairly singled out for identification and whether the police influenced the identification).  One-person show-ups are not per se unnecessarily suggestive.  Id. at 161-62; State v. Gutberlet, 346 N.W.2d 639, 642 (Minn. 1984).  If we find that the identification was unnecessarily suggestive, we then determine whether, based on the totality of the circumstances, the identification procedure caused a very substantial likelihood of misidentification.  Taylor, 594 N.W.2d at 161.  In evaluating the likelihood of misidentification, we consider:

the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.

 

McDuffie v. State, 482 N.W.2d 234, 236 (Minn. App. 1992), review denied (Minn. Apr. 13, 1992) (quotation omitted).

            Here, the police went to the recreation center after the incident.  The suspect had been described to St. Paul Police Officer James Halverson as a young black male, approximately 14 years old, wearing a red jersey with the number 23 on it.  Officer Halverson observed a 14 or 15-year-old black male playing basketball who was wearing a red basketball jersey with the number three on it.  Officer Halverson approached the young man, B.C., and, after a brief discussion, B.C. was placed into the back of a squad car where Halverson and Koran identified B.C. as the person they saw kick Mark Hanson.

At the time Halverson and Koran identified B.C., B.C. was the only person in the back of the squad car.  There is nothing in the record as to what the police said to Halverson or Koran before or during the show-up.  But by having B.C. alone in the squad car, the police were implicitly suggesting to Halverson and Koran that B.C. was the person the police suspected of committing the crime.  Under the circumstances, we conclude that the procedure for Halverson and Koran's identifications of B.C. while he was in the back of the squad car were unnecessarily suggestive, and the suggestiveness of the identifications should have been taken into account by the trial court when it determined the weight and credibility of Halverson and Koran's testimony.

            Since we conclude that the show-up was unnecessarily suggestive, the next issue is whether there was a substantial likelihood of irreparable misidentification.  The show-up occurred shortly after the incident.  The record shows that Halverson was driving his car when the incident occurred, which may have affected his ability to observe the incident and his degree of attention.  But Koran, who was Halverson's passenger, would have had far fewer distractions affecting his ability to observe the incident.  Both witnesses seemed certain that B.C. was the person they saw kick Hanson.  But there is no evidence in the record as to how specifically Halverson or Koran described the suspect before seeing B.C. in the show-up.  At trial, Halverson testified that he was "extremely sure of what [he] saw."  Based on this evidence, while we conclude that the show-up was unnecessarily suggestive, we conclude that it did not result in a substantial likelihood of irreparable misidentification. 

            It should be noted that identification was not an issue at trial.  B.C., himself, told the police officers that he was present during the assault.  The contested issue at trial was the nature and degree of B.C.'s involvement in the incident.  In addition to Halverson and Koran, Jones independently identified B.C. at the recreation center as the boy who kicked Hanson while he was on the ground.  Even if Halverson and Koran's identifications had not been considered by the court, there was other sufficient evidence for the trial court to adjudicate B.C. a delinquent for aiding and abetting or being aided and abetted by another in an assault in the third degree.

            Affirmed.

 

 

[1] B.C. did not object to Koran or Halverson's testimony regarding the out-of-court identifications.  See State v. Armstrong, 311 Minn. 541, 542, 249 N.W.2d 176, 177 (1976) (stating that appellant waived his right to challenge a suggestive identification on appeal when he did not object to the identification during trial).