Opinion
No. C6-01-633.
Filed January 29, 2002.
Appeal from the District Court, Kandiyohi County, File No. K3991315.
Mike Hatch, Attorney General, Robert A. Stanich, Assistant Attorney General, and
Boyd A. Beccue, Kandiyohi County Attorney, (for respondent)
John M. Stuart, State Public Defender, Susan K. Maki, Assistant Public Defender, (for appellant)
Considered and decided by Willis, Presiding Judge, Crippen, Judge, and Anderson, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2000).
UNPUBLISHED OPINION
Appellant challenges his conviction of violating an order for protection, arguing that the evidence was insufficient to support the conviction. We affirm.
FACTS
Appellant and Cynthia Keehn were married in 1988 and divorced in 1995. Their only child, J.K., was born in 1989. On August 28, 1994, appellant beat Cynthia for several hours in J.K.'s presence and threatened to kill J.K. if he did not "shut up." Cynthia took J.K. to live in a shelter and had an order for protection (OFP) issued, barring appellant from having any contact with J.K. or Cynthia and requiring that appellant stay at least one-half mile away from their residence. The order was still in effect on September 12, 1999.
On September 12, 1999, J.K. was playing outside his home in New London, Minnesota, when he saw appellant in the passenger seat of a pickup truck passing in front of J.K.'s house. J.K. alerted his mother, who called the police.
On October 6, 1999, appellant was charged with one count of violating an OFP in violation of Minn. Stat. § 518B.01, subd. 14(d)(1) (1998); one count of harassing conduct in violation of Minn. Stat. § 609.749, subd. 5 (1998); and one count of criminal contempt of court in violation of Minn. Stat. § 588.20, subd. 2(4) (1998).
At trial, J.K. testified that just before noon on September 12, 1999, he was playing with a friend in the cul-de-sac outside his home. A pale blue Chevrolet pickup truck approached J.K.'s home and turned around in front of the driveway. As the truck was turning around, J.K. recognized appellant in the passenger seat. J.K. noticed that appellant was smoking a cigarette and slouching down in his seat, apparently so J.K. would not see him.
James Radabaugh, a Kandiyohi County deputy sheriff, investigated the alleged OFP violation. Radabaugh testified to repeatedly asking J.K. whether he might be mistaken about the identity of the passenger in the pickup truck, and J.K. assured the deputy he was not. Radabaugh stated that J.K. was quick to answer his questions and that J.K. showed none of the hesitancy that often characterizes the responses young people give to the police. Radabaugh also testified that the distance from the residence to the cul-de-sac is no more than 150 yards, far less than the one-half mile limit in the OFP.
At trial, appellant presented an alibi defense, but did not testify. Appellant attempted to establish that on September 12, 1999, he was not in New London, but was working on a farm in Ramsey, Minnesota. He maintained that while he did have access, in September 1999, to a blue Chevrolet pickup similar to the one J.K. saw, the truck in question was inoperative at the time. Appellant also claimed that J.K.'s mother had contributed to J.K.'s perception that appellant was the passenger in the truck by instilling a fear of appellant in J.K.
Charlotte Mahoney, a friend of appellant's, testified that appellant was living with her in Danube, Minnesota, between 1998 and 2000 and that during that time appellant regularly traveled to his job in Ramsey. Mahoney testified that in September 1999 she owned an inoperative light blue Chevrolet pickup truck similar to the truck J.K. claimed he saw in the cul-de-sac on September 12, 1999. Appellant used this truck when it was working. But Mahoney testified that the truck never left her front yard in September 1999. The captain of the Danube police department corroborated Mahoney's testimony concerning the inoperative blue pickup truck.
Mahoney testified that her household date book showed that appellant was in Ramsey between September 6 and September 14. On cross-examination, Mahoney acknowledged that although she telephoned appellant in Ramsey at least twice between September 6 and September 14, she had not been in direct contact with him on September 12. Bruce Bacon, the owner of the farm in Ramsey, testified that appellant was working on the farm in the fall of 1999. But Bacon also testified that he did not have any direct contact with appellant on September 12, 1999.
Edwin Engelmann, who worked with appellant on the farm in Ramsey, testified that he drove appellant to the farm on September 6, 1999, and returned appellant to the Mahoney residence in Danube on September 14, 1999. Engelmann acknowledged that between September 6 and September 14, he left the farm at least once, either on September 11 or September 12, and could not say with certainty that he was with appellant continuously on September 12. Another of appellant's co-workers testified that according to his diary and to the best of his recollection, appellant was at the farm on September 12, 1999.
The jury found appellant guilty of criminal contempt and violation of the OFP. The district court did not impose a sentence for the contempt offense, but sentenced appellant to 18 months in prison for the OFP offense. The court stayed execution of the sentence on various conditions, including a 120-day jail term; 60 days on electronic home monitoring; a fine; and a domestic-abuse assessment. This appeal followed.
DECISION
Our review of a challenge to the sufficiency of the evidence is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in the 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). We 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) (citation omitted).
We will not disturb the verdict if the jury, acting with due regard for the presumption of innocence and for the necessity of overcoming it by proof beyond a reasonable doubt, could reasonably conclude that a defendant was proven guilty of the offense charged.
State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988) (citation omitted).
Absent special circumstances, we will uphold a jury's verdict if there is evidence from which the jury could reasonably infer the existence of all the elements of the crime. State v. Collins, 580 N.W.2d 36, 43 (Minn.App. 1998), review denied (Minn. July 16, 1998). The jury determines the credibility of the testimony of individual witnesses. State v. Garrett, 479 N.W.2d 745, 747 (Minn.App. 1992), review denied (Minn. Mar. 19, 1992).
We rarely reverse a conviction due to insufficient evidence and will do so only when we have "`grave doubt as to defendant's guilt'" and "reversal is `in the interest of justice.'" State v. Roberts, 350 N.W.2d 448, 451 (Minn.App. 1984) (quoting State v. Housley, 322 N.W.2d 746, 751 (Minn. 1982)).
The sole issue in this case is witness credibility. The state's case rested largely on J.K.'s direct testimony. Appellant argues that the jury should not have believed J.K., who was the only witness to the alleged offense to testify. Appellant argues that the jury should have believed appellant's alibi witnesses. But "[c]redibility determinations of conflicting oral testimony are for the finder of fact and rarely disturbed on appeal." State v. Norregaard, 380 N.W.2d 549, 552 (Minn.App. 1986) (citation omitted), aff'd as modified 384 N.W.2d 449 (Minn. 1986). Further, "[i]t is well established that a conviction can rest upon the testimony of a single credible witness." State v. Bliss, 457 N.W.2d 385, 390 (Minn. 1990) (citations omitted).
Appellant maintains that J.K.'s testimony that the passenger in the truck was appellant is "of dubious veracity" (1) because J.K. had not seen his father for three years prior to this alleged sighting; (2) because J.K.'s mother had instilled an unreasonable fear of appellant in J.K., causing the boy to imagine "his father might take him away from his mother" and causing appellant to become, in J.K.'s mind, "a bogeyman whose image [J.K.] saw whenever he was afraid"; and (3) because, according to appellant, J.K. did not become certain that the person in the truck was appellant until after J.K. discussed the sighting with his mother.
Deputy Radabaugh testified that he found J.K.'s account of the incident clear, direct, and credible. None of appellant's alibi witnesses testified that they had direct contact with appellant on September 12, 1999, the date of the alleged OFP violation.
Appellant's contention that we should reverse the conviction because the jury could, or should, have believed his witnesses instead of the state's witnesses misconstrues the function of both a jury at trial and a reviewing court. See In re Salkin, 430 N.W.2d 13, 16 (Minn.App. 1988) (noting that "the function of the appellate court is not to reweigh the evidence, but rather to determine if the evidence as a whole sustains the trial court's findings"), review denied (Minn. Nov. 23, 1988); State v. Newman, 408 N.W.2d 894, 900 (Minn.App. 1987) ("[I]t is the exclusive function of the jury to weigh the credibility of witnesses [and] [t]he jury is entitled to believe a victim's account of the events.") (quotation and citation omitted), review denied (Minn. Aug. 19, 1987).
There was sufficient evidence for the jury to reasonably conclude that appellant violated the OFP on September 12, 1999, by coming within one-half mile of the residence occupied by J.K. and his mother.