Opinion
No. C5-03-319.
Filed May 18, 2004.
Appeal from the Dakota County District Court, File No. K5021825.
Mike Hatch, Attorney General, and James C. Backstrom, Dakota County Attorney, Lawrence F. Clark, Assistant Dakota County Attorney, Dakota County Judicial Center, (for respondent)
Thomas Plunkett, Piper Jaffray Plaza, and Maureen Williams, (for appellant)
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2002).
UNPUBLISHED OPINION
On appeal from his conviction of attempted second-degree murder, appellant argues that the evidence that he shot at two men, without pointing the gun directly at either, and encouraged the victim to run, was insufficient to prove that appellant intended to kill the victim or took a substantial step toward that end. Appellant also argues that the show-up identification procedure was impermissibly suggestive. Because the evidence is sufficient to establish intent and the challenge to the identification-procedure issue was waived, we affirm.
FACTS
The state charged appellant Keith Edwards with attempted second-degree murder, second-degree assault, and discharge of a firearm in a school zone stemming from a shooting on June 4, 2002.
The evidence at Edwards' jury trial showed that, on that day, South St. Paul police responded to reports of gunshots in the vicinity of school-district property known as Roosevelt Park. When the police arrived, they learned that there had been a dispute among Edwards, Ponzie Caple, Anthony Hipkins, and Sara Houle.
The dispute was a continuation of an argument earlier in the day involving Edwards, Caple, Hipkins, and Hipkins' sister, Tonya. "Words and taunting were exchanged," and the police were called. The police separated the parties and drove Caple to a bus stop so that he could leave the area. Instead of leaving, Caple made arrangements to meet a friend in Roosevelt Park.
Caple testified that while he was returning to the park, Edwards drove by and the two men again exchanged words. Edwards drove on, and Caple continued walking to the park. After Caple reached the park, he sat on a boulder. Edwards approached him on foot and lifted up his shirt and showed that he had a gun. Caple testified that he began to back away to make sure Edwards did not "pull the pistol" on him. About this time, Houle arrived on the scene and walked toward Caple with a crowbar in her hand According to Caple, Houle was "telling Edwards to let her hit [Caple] with the crowbar." Tony Hipkins also arrived at this time.
Caple testified that he grabbed the crowbar out of Houle's hand and, as he did so, he saw Edwards "reach and pull out the gun and cock it." Then "he started to shoot but [the gun] jammed" twice. After Edwards got the gun unjammed, "he started shooting about four — four to six times." Caple testified that, while he was shooting, Edwards held the gun "straight at [him]." Caple heard police sirens and saw Edwards run away. The police ultimately took Caple, Hipkins, and Edwards into custody and they presented Edwards to witnesses for identification. No gun was found, but the police did find one live round and seven spent casings in the area.
Several witnesses corroborated Caple's testimony, and the jury found Edwards guilty of all charges. On appeal, he challenges only his conviction of attempted second-degree murder.
DECISION
1. Sufficiency of Evidence
Edwards argues that there is insufficient evidence to support his conviction of attempted second-degree murder. When sufficiency of evidence is challenged, this court's review is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, is sufficient to allow the fact-finder to reach the verdict that it did. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). This court must assume the fact-finder believed the state's witnesses and disbelieved any evidence to the contrary. State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989). This is especially true when resolution of the matter depends mainly on conflicting testimony. State v. Pieschke, 295 N.W.2d 580, 584 (Minn. 1980). 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 reasonably conclude that the defendant was guilty of the charge offense. State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988). We defer to the fact-finder on determinations of credibility. Dale v. State, 535 N.W.2d 619, 623 (Minn. 1995). It is settled that a conviction may be based on the testimony of a single credible witness. Caldwell v. State, 347 N.W.2d 824, 828 (Minn. App. 1984).
Edwards contends that the evidence is insufficient to support his conviction of attempted second-degree murder because it fails to establish the intent element of the crime. Edwards points specifically to evidence that (1) Hipkins was also being shot at, (2) Caple "ran in the direction of the shooter the second he `saw nothing happened,'" (3) witness testimony stated that the gun was pointed "sideways," and (4) Edwards said "Run, nigger, run." Edwards concludes that this evidence establishes that Caple was not afraid of being shot, that the shots were fired only to scare Caple, and "if [Edwards] had really wanted to murder Caple, he would have, or at least appeared to, try harder"; thus, the evidence does not establish the necessary intent.
Edwards does not provide legal support for his argument that a victim must be afraid, or that the defendant must try hard or appear to try hard to commit a crime in order to establish intent. These arguments are without merit. Edwards also fails to consider other evidence in the record that does establish intent.
An attempt occurs when "[w]hoever, with intent to commit a crime, does an act which is a substantial step toward, and more than preparation for, the commission of the crime is guilty of an attempt to commit that crime." Minn. Stat. § 609.17, subd. 1 (2000) (emphasis added). A person is guilty of second-degree murder when he or she "causes the death of a human being with intent to effect the death of that person or another, but without premeditation." Minn. Stat. § 609.19, subd. 1(1) (2000) (emphasis added). "`With intent to' means that the actor either has a purpose to do the thing or cause the result specified or believes that the act, if successful, will cause that result." Minn. Stat. § 609.02, subd. 9(4) (2000). Evidence is sufficient to support a conviction if, given the facts in the record and the legitimate inferences drawn from those facts, a jury could reasonably conclude that each element of the offense has been proved beyond a reasonable doubt. State v. Robinson, 539 N.W.2d 231, 238 (Minn. 1995). Intent is a state of mind generally proved circumstantially through evidence from which the jury can draw reasonable inferences. State v. Cooper, 561 N.W.2d 175, 179 (Minn. 1997). The jury may infer that a person intends the natural and probable consequences of his actions. Id.
Edwards uses the statutory definition for "intentionally" as provided by Minn. Stat. § 609.02, subd. 9(3) (2000), but this is not the language used in the statutory definition for second-degree murder. Rather the proper term is "with intent to," and the definition is provided by Minn. Stat. § 609.02, subd. 9(4) (2000).
Here, the record shows that Caple's testimony alone is sufficient to support the verdict of attempted second-degree murder when Edwards fired the gun at Caple, re-cocked the gun twice, and ultimately fired the gun at Caple at least four times. See Caldwell, 347 N.W.2d at 828 (holding conviction may rest on single testimony of credible witness). These are facts that reasonably support a jury's finding that Edwards intended to cause the death of a human being and that he took a significant step toward doing so by shooting at Caple. The facts legitimately support the inference that Edwards intended the natural and probable consequences of shooting a gun at another person.
Edwards' reliance on State v. Simonsen, 252 Minn. 315, 89 N.W.2d 910 (1958), and State v. Elmourabit, 356 N.W.2d 80 (Minn. App. 1984), aff'd, 373 N.W.2d 290 (Minn. 1985), is misplaced. Simonsen held that a jury may not be allowed to "draw an inference based entirely upon conjecture, supported by neither testimony nor circumstantial evidence." Simonsen, 252 Minn. at 324, 89 N.W.2d 916. Here, there is ample circumstantial evidence to support the finding that Edwards had the requisite intent, and thus the inferences are legitimate. Elmourabit held that "positive testimony of unimpeached witnesses cannot be disregarded when there is no real basis in the evidence for a finding that suchevidence is either improbable or inconsistent." Elmourabit, 356 N.W.2d at 84 (emphasis added). Here, there is a basis in the evidence for finding that the unimpeached testimony that contradicted the state's case was improbable or inconsistent, as shown by the testimony of Caple and several other witnesses. Thus Elmourabit does not apply.
Because Caple's testimony alone is sufficient but because there is additional, corroborating testimony in the record, we conclude that the jury could legitimately have inferred intent from the facts.
2. Identification Procedure
Edwards argues that the identification procedure used by the police with Edwards at the scene was impermissibly suggestive. Because no pretrial challenges were made and there was no objection to the procedure during the trial, Edwards waived his opportunity to appeal this issue. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (holding a reviewing court must generally consider "only those issues that the record shows were presented and considered by the trial court in deciding the matter before it.").