                                 STATE OF MINNESOTA
                                 IN COURT OF APPEALS
                                       A16-0051

                                      State of Minnesota,
                                         Respondent,

                                              vs.

                                    Justin Dillard Thomas,
                                           Appellant.

                                   Filed January 17, 2017
                                          Affirmed
                                      Connolly, Judge

                               St. Louis County District Court
                                File No. 69DU-CR-14-2831


Lori Swanson, Attorney General, Edwin W. Stockmeyer, Assistant Attorney General,
St. Paul, Minnesota; and

Mark S. Rubin, St. Louis County Attorney, Duluth, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Jodi Proulx, Assistant Public
Defender, St. Paul, Minnesota (for appellant)



       Considered and decided by Connolly, Presiding Judge; Bjorkman, Judge; and

Reilly, Judge.

                                       SYLLABUS

       In the absence of expert testimony proffered by a party, it is not an abuse of

discretion for the district court to refuse to give a jury instruction informing a jury of recent

social and scientific developments in assessing evidence.
                                      OPINION

CONNOLLY, Judge

       After a jury convicted appellant on charges of being a felon in possession of a

firearm and of first-degree aggravated robbery, he was given an enhanced sentence of 180

months. He challenges his conviction and his sentence. We affirm.

                                          FACTS

       In August 2014, appellant Justin Thomas, a black male then 24, and another male

approached J.S., a white male, who was walking down a street. Appellant pointed a gun

at J.S.’s chest, told him to empty his pockets, and frisked him. J.S. described his assailant

to the police as an African-American with lighter skin, whose hair was in a ponytail, who

had a goatee and a mustache, and who was wearing a dark jacket and a black and red

baseball cap with the name of a Chicago team. When the police found appellant, he was

removing his hair from a ponytail; he was wearing a reversible jacket with the red side out

and the dark side in, and he had a red and black baseball cap with the logo of another

Chicago team concealed in his jacket sleeve. While the police were speaking with

appellant, a police dog following a scent from the scene of the assault approached appellant

and indicated that the scent trail stopped there. Appellant was then shown to J.S., who

identified him as the man with the gun.




                                             2
         Appellant was charged with one count of first-degree attempted aggravated robbery,

one count of second-degree assault, one count of being a felon in possession of a firearm,

and first-degree aggravated robbery.1

         Based on appellant’s 2003-2004 juvenile adjudications of felony aggravated battery

and felony theft of a motor vehicle in Illinois; his 2008 convictions of felony first-degree

burglary, felony terroristic threats, interfering with a 911 call, and four counts of

misdemeanor fifth-degree assault; his 2012 convictions of driving without a valid license;

his 2013 convictions of driving after suspension of his license; and his 2014 conviction of

misdemeanor fifth-degree assault; the state gave notice of its intent to have appellant

sentenced as a dangerous offender, a repeat offender, and a defendant unamenable to

probation.

         Before trial, appellant, without offering any evidentiary support or seeking a

hearing, moved to have the jury instructed to consider “whether the witness and

defendant’s difference of race affected the accuracy of [J.S.’s] identification [of

appellant],” an addition to CRIMJIG 3.19, the cautionary instruction on identification

testimony.

         At trial, appellant declined to testify. The state’s principal witness was J.S. J.S.

testified that he was “110% sure” that appellant was the man who had held a gun pointed

at his chest when he saw appellant’s face during a “show up” arranged by police on the

night of the crime. When asked on cross-examination, “But you’re 110% positive?” J.S.



1
    A count of receiving stolen property was dismissed during trial.

                                               3
answered, “Oh [appellant’s] face, yes.” When asked, “[I]s it fair to say, can we agree that

you weren’t 110% positive?” J.S. replied, “No, sir. I was 110% positive due to the face,

sir. The facial features, the hair – ”

       On redirect examination, J.S. was again questioned about his identification of

appellant.

              Q.      You testified that you saw when you were in the back
                      seat of the squad car and the officer drove you to
                      [appellant’s] location, you were 110% sure after you
                      saw him that it was him.
              A.      Yes, ma’am. It just happened like ten minutes before
                      that, so . . . it was pretty fresh in my memory at the time.
                      It is still fresh in my memory right now, his face.
              ....
              Q.      And you indicated that despite the confusion about hats,
                      . . . whether or not he had a hood, you were 110% sure
                      because of the face.
              A.      Yes, ma’am.
              Q.      That’s your testimony?
              A.      Yes, ma’am.
              Q.      What about [appellant’s] face makes you 110% sure?
              A.      It was the goatee.
              ....
              Q.      You saw the front [of appellant]?
              A.      Yes, ma’am.
              Q.      And it was dark; right?
              A.      Yes, ma’am.
              Q.      You could still see [appellant’s] face; is that your
                      testimony?
              A.      Yes, ma’am.

       Following a jury trial, appellant was found guilty of attempted aggravated first-

degree robbery, second-degree assault, being a felon in possession of a firearm, and first-

degree aggravated robbery. He waived a jury determination of aggravating sentencing

factors and was sentenced to 180 months on the aggravated robbery charge and a



                                               4
concurrent 60 months on the felon-in-possession-of-a-firearm charge, an upward departure

of 69 months.

                                            ISSUES

       1. Did the district court abuse its discretion in refusing to instruct the jury to

consider the racial disparity between J.S. and appellant when deciding if J.S.’s

identification of appellant was reliable?

       2. Did the state prove appellant’s identity beyond a reasonable doubt?

       3. Did the record support the appellant’s enhanced sentence?

                                        ANALYSIS

1.     Racial-Disparity Jury Instruction

       The refusal to give a requested jury instruction lies within the discretion of the

district court and will not be reversed absent an abuse of discretion. State v. Cole, 542

N.W.2d 43, 50 (Minn. 1996). The focus of the analysis is whether the refusal resulted in

error. State v. Kuhnau, 622 N.W.2d 552, 555 (Minn. 2001). “An instruction is in error if

it materially misstates the law.” Id. at 556. Appellant does not argue that the instruction

given, CRIMJIG 3.19 (the cautionary instruction on eyewitness identification), materially

misstated the law.

       Appellant proposed an addition to that instruction; he wanted the jury to also

consider “whether [J.S.’s and appellant’s] difference of race affected the accuracy of

[J.S.’s] identification [of appellant].” The district court declined to add this language on

the ground that the Minnesota Supreme Court has not modified CRIMJIG 3.19 to include

cross-racial identification as a factor in evaluating identification testimony. Appellant


                                              5
argues that the refusal to instruct the jury on cross-racial identification was an abuse of

discretion.

       This is an issue of first impression. In State v. Miles, 585 N.W.2d 368 (Minn. 1998),

our supreme court addressed the issue of cross-racial eyewitness identification in the

context of expert testimony. Id. at 371-72. In that case, the defense moved the court to

admit the expert testimony of Dr. Edith Green on the reliability of eyewitness

identification. Id. at 370-71.

              The defense specifically wanted to introduce testimony
              regarding the potential for error in eyewitness identification,
              citing principally the lack of correlation between reliability of
              the identification and the level of certainty of the witness, and
              the lack of reliability of cross-racial identifications relating
              particularly to the identification testimony of . . . the . . .
              eyewitness.

Id. at 370.

       In upholding the district court’s decision to exclude the testimony, a unanimous

supreme court held that, “[t]he admissibility of expert testimony is within [the] discretion

[of the district court] and is guided by Minn. R. Evid. 702.” Id. at 371. The supreme court

stated that, “[i]f the expert testimony will be helpful to the jury in fulfilling its

responsibilities, the evidence may be admitted. . . . It is the trial court’s responsibility to

scrutinize the proffered expert testimony as it would other evidence and exclude it where

irrelevant, confusing, or otherwise unhelpful.” Id. (quotation omitted).

       In affirming the exclusion of this evidence, the Miles court relied on two earlier

supreme court decisions, State v. Helterbridle, 301 N.W.2d 545 (Minn. 1980), and State v.

Barlow, 541 N.W.2d 309 (Minn. 1995). In Helterbridle, the supreme court stated:


                                              6
             [W]e do not mean to suggest that we think the broader issue of
             reliability of eyewitness identification testimony is
             unimportant. Rather, we simply believe that requiring trial
             courts to admit this sort of evidence is not the answer. There
             is no one answer to the problem, but there are a number of
             safeguards to prevent convictions of the innocent based on
             unreliable eyewitness identification. Prosecutors do not have
             to prosecute if they think the evidence is unreliable. . . .
             Effective cross-examination and persuasive argument by
             defense counsel are additional safeguards. Proper instruction
             of the jury on the factors in evaluating eyewitness
             identification testimony and on the state’s burden of proving
             identification beyond a reasonable doubt are other safeguards.
             The requirement of jury unanimity is also a safeguard. Finally,
             this court has the power to grant relief if it is convinced that the
             evidence of a convicted defendant’s guilt was legally
             insufficient.

Helterbridle, 301 N.W.2d at 547, quoted in Miles, 585 N.W.2d at 372.

      Barlow, another unanimous decision from our supreme court, concluded that such

expert testimony was properly excluded. 541 N.W.2d at 313. It stated:

             [T]he proffered testimony did not go to the reliability of any
             particular witness or the particular circumstances of the
             identification, and its potential for helpfulness was minimal at
             best. Hence, we cannot say that the trial court abused its broad
             discretion in deciding to exclude the testimony of defendant’s
             expert.

Barlow, 541 N.W.2d at 313. All of these cases remain the law of our state.

      In the memorandum supporting his proposed jury instruction, appellant relied on

two cases from other jurisdictions, Commonwealth v. Gomes, 22 N.E.3d 897 (Mass. 2015)

and State v. Henderson, 27 A.3d 872 (N.J. 2011). Neither case has any precedential value

in Minnesota. See Mahowald v. Minn. Gas Co., 344 N.W.2d 856, 861 (Minn. 1984)




                                              7
(acknowledging that foreign authorities can be persuasive but are not binding). Moreover,

both cases are readily distinguishable.

       Gomes “conclude[d] that the [district court] judge did not err by declining to instruct

the jury about these [scientific] principles [regarding eyewitness identification] where the

defendant offered no expert testimony, scholarly articles, or treatises that established that

these principles were so generally accepted that a standard jury instruction stating [them]

would be appropriate.” Gomes, 22 N.E.3d at 900 (quotation omitted). But the Gomes

court, having received and reviewed “the Report and Recommendations of the Supreme

Judicial Court Study Group on Eyewitness Evidence,” went on to conclude that “there are

[five] scientific principles regarding eyewitness identification that are so generally

accepted that it is appropriate in the future to instruct juries regarding these principles so

that they may apply the principles in their evaluation of eyewitness identification

evidence.” Id. These five principles did not include racial disparity. Id. at 911-16.

However, the provisional model jury instruction in an appendix to the opinion provided

that, “if [the] witness and offender are of different races,” the jury be instructed that

“research has shown that people of all races may have greater difficulty in accurately

identifying members of a different race than they do in identifying members of their own

race.” Id. at 921-22.

       Henderson followed a remand during which a special master “presided over a

hearing that probed testimony by seven experts and produced more than 2,000 pages of

transcripts along with hundreds of scientific studies” in order to “evaluate scientific and

other evidence about eyewitness identifications.” Henderson, 27 A.3d at 877. The New


                                              8
Jersey Supreme Court adopted the report in large part, id., and observed that “[c]ross-racial

recognition continues to be a factor that can affect the reliability of an identification.” Id.

at 907. The opinion requested the drafting of new jury instructions to reflect the report and

specified that the instruction on cross-racial identification was to be given “whenever

cross-racial identification is in issue at trial.” Id. at 926.

       Because both Gomes and Henderson were decided following and in light of

intensive scientific studies mandated by the supreme courts of Massachusetts and New

Jersey respectively, they are clearly distinguishable: Minnesota has no such body of

evidence on which to rely and, as the district court noted, the Minnesota Supreme Court

“has not modified the jury instruction [i.e., CRIMJIG 3.19] to take those things [e.g. cross-

racial identification] into account.”2

       The district court also noted that whether to admit expert testimony on cross-racial

identification “[was] not before the Court [here] because there [was] no such witness that’s

been offered to the Court in this particular case.” Because appellant had not offered an

expert witness to testify on cross-racial identification, the district court had no basis for

instructing the jury on the issue. Therefore, if the instruction had been given, the jury

would not have heard evidence to which it could apply. Moreover, as the state points out,


2
   Appellant also relied on a 2009 report of the National Academy of Sciences,
Strengthening Forensic Science in the United States: A Path Forward, which has been
cited in connection with fingerprint evidence by the supreme court in State v. Hull, 788
N.W.2d 91, 109-10 (Minn. 2010) (Meyer, J., concurring) and by this court in State v. Dixon,
822 N.W.2d 664, 668 (Minn. App. 2012). The report is a 350-page document whose index
does not refer to either race or eyewitness identification, and appellant does not explain its
relevance to the issue of cross-racial identification or specify any part of it pertaining to
that issue.

                                                 9
expert testimony, not a jury instruction, is the appropriate way of educating jurors: an

expert witness can apply theory to the particular facts of a case and is subject to cross-

examination, while a jury instruction does not apply theory to the particular facts before

the jury and is unopposed. See State v. MacLennan, 702 N.W.2d 219, 233-35 (Minn. 2005)

(expert testimony on battered-child syndrome admissible if it met the standard of Minn. R.

Evid. 702); State v. Hennum, 441 N.W.2d 793, 797-99 (Minn. 1989) (expert testimony on

battered-woman syndrome admissible if it met the standard of Minn. R. Evid. 702).3

       Appellant argues further that misidentification of him as one of the men who

attempted to rob J.S. is his theory of the case and relies on Kuhnau, 622 N.W.2d at 557,

for the proposition that “[a] defendant is entitled to an instruction on his theory of the case

if there is evidence to support it.” But appellant cites no evidence indicating that he had

been misidentified based on cross-racial differences. Moreover, “the trial court has

discretion not to instruct the jury on the [defendant’s] theory.” State v. Vasquez, 644

N.W.2d 97, 99 (Minn. App. 2002).

       Finally, even if the omission of the requested instruction was error, the error was

harmless. The jury was instructed to carefully consider J.S.’s testimony in light of certain

specified factors. Appellant’s counsel attacked J.S.’s credibility repeatedly in closing

argument. Evidence independent of J.S.’s identification of appellant implicated appellant


3
  But see Henderson, 27 A.3d at 925 (“Jury charges offer a number of advantages [over
expert testimony]: they are focused and concise, authoritative (in that juries hear them from
the trial judge, not a witness called by one side), and cost free; they avoid possible
confusion to jurors created by dueling experts; and they eliminate the risk of an expert
invading the jury’s role of opining on an eyewitness’ credibility.”) quoted in Gomes, 22
N.E.3d at 917.

                                              10
in the crime. Instructing the jury on cross-racial identification would not have altered the

verdict.

       The day may come when our supreme court wishes to endorse a jury instruction

regarding cross-racial identification and reassess its decisions regarding the admissibility

of expert testimony on eyewitness identification. But that is not our role. “[T]he task of

extending existing law falls to the supreme court or the legislature, but it does not fall to

this court.” Tereault v. Palmer, 413 N.W.2d 283, 286 (Minn. App. 1987), review denied

(Minn. Dec. 18, 1987). One thing is clear: it is not an abuse of discretion for a district court

to refuse to give such an instruction when there has been no expert testimony to support

giving the instruction.

2.     Sufficiency of the Evidence as to Identification of Appellant

       If the jury, acting with due regard for the presumption of innocence and the

requirement of proof beyond a reasonable doubt, could reasonably have concluded that the

defendant was guilty of the charged offense, this court will not disturb the verdict.

Bernhardt v. State, 684 N.W.2d 465, 476-77 (Minn. 2004). This court must assume that

the jury believed the state’s evidence and disbelieved any evidence to the contrary. State

v. Moore, 438 N.W.2d 101, 108 (Minn. 1989). This is particularly true when the matter

depends on conflicting testimony. State v. Pieschke, 295 N.W.2d 580, 584 (Minn. 1980).

“The testimony of an eyewitness that the accused is the person who committed the crime

is a legitimate means of proving a defendant’s guilt” and “[a]ny details affecting the

reliability of the testimony . . . go to the weight the trier of fact should give to the testimony,




                                                11
not to its admissibility.” State v. Mosley, 853 N.W.2d 789, 798 (Minn. 2014).4 The jury,

not the reviewing court, is responsible for weighing the credibility of eyewitness testimony;

thus, “the positive and uncontradicted testimony of a victim may be sufficient by itself to

support a conviction.” State v. Foreman, 680 N.W.2d 536, 539 (Minn. 2004). J.S.’s

testimony was positive and uncontradicted; it was sufficient to support appellant’s

conviction. See id.

         Appellant relies on State v. Gluff, 285 Minn. 148, 151-53, 172 N.W.2d 63, 65-66

(1969) (reversing a conviction on the ground that the victim’s identification of the

defendant was not trustworthy), but Gluff is distinguishable here, as it was in Foreman.

See Foreman, 680 N.W.2d at 539 (distinguishing Gluff on the ground that “the witness had

seen the perpetrator for only a short time and there had been errors in the lineup process”).

Here, J.S. identified appellant within minutes of the incident; in Gluff, seven days elapsed

before the victim, who had been working as a motel registration clerk when held up by

robbers, was shown hundreds of photographs, selected the photograph of a man who had

stayed at the motel about two weeks earlier, and then identified the man in the photograph

as one of the robbers. Gluff, 285 Minn. at 149-50, 172 N.W.2d at 64. Here, J.S. had

observed very specific details of appellant’s appearance; in Gluff, the victim said she had

only seen him for 30 seconds before becoming aware that he was holding a gun, which was

the only thing she looked at for the rest of the robbery. Id. at 150, 172 N.W.2d at 64. Here,

J.S. described his assailant as having the facial hair, skin color, and hair style of appellant,



4
    Appellant did not challenge the admissibility of J.S.’s identification of him at trial.

                                                12
wearing a jacket that was the color of the inside of the reversible jacket appellant was found

wearing, and wearing a baseball cap of a Chicago team that used the same colors as the

Chicago team whose cap appellant had. In Gluff, the victim described the robbers as 19 or

20 and “unshaven but clean-cut” but identified an individual who was 32, with receding

hair, a facial cyst, and a facial scar, none of which she mentioned in her description. Id.,

172 N.W.2d at 64.

       Moreover, in Gluff, “[t]here was no corroboration of the identification.” Id. at 151,

172 N.W.2d at 65. Here, J.S.’s identification of appellant was corroborated by four facts.

First, appellant’s appearance matched J.S.’s description of an African-American with

lighter skin, whose hair was in a ponytail, who had a goatee and a mustache, and who was

wearing a dark jacket (one side of appellant’s reversible jacket was dark) and a black and

red baseball cap. Second, when the police found appellant, he was removing his hair from

the ponytail, the dark side of his jacket had been put on the inside, with the red side visible,

and the cap was concealed in the jacket sleeve. Third, appellant appeared to have recently

exerted himself: he was sweaty and said he was hot, although the temperature was in the

50s. Fourth, a police dog independently tracked a human scent from the scene of the

incident directly to appellant.       Thus, J.S.’s identification of appellant was not

uncorroborated. Appellant’s reliance on Gluff is misplaced.

3.     The Dangerous-Offender Sentence

       “We review a sentencing court’s departure from the sentencing guidelines for [an]

abuse of discretion.” State v. Geller, 665 N.W.2d 514, 516 (Minn. 2003). A sentence will

be affirmed if the district court’s decision was legally permissible and supported by the


                                              13
record. State v. Vickla, 793 N.W.2d 265, 269 (Minn. 2011). Under Minn. Stat. § 609.1095

(2016), the dangerous-offender statute, the sentencing court considers the defendant’s

criminal history. State v. Neal, 658 N.W.2d 536, 546 (Minn. 2003). “Having “[t]wo or

more prior convictions for violent crimes” when being sentenced for another violent crime

renders a defendant liable to an enhanced sentence. Minn. Stat. § 609.1095, subd. 2.

       At the time appellant was sentenced for first-degree aggravated robbery in October

2015, he had a 2013 conviction for third-degree assault, and 2008 convictions for first-

degree burglary and felony terroristic threats. All four crimes are “violent crimes” under

the dangerous-offender statute. Minn. Stat. § 609.1095, subd. 1 (d). Appellant does not

dispute that he meets the statutory criteria for sentencing as a dangerous offender, nor does

he argue that the district court’s decision was not legally permissible or is not supported by

the record. See Vickla, 793 N.W.2d at 269.

       Appellant argues that the district court failed to state on the record that appellant

met the statutory criteria and to make specific findings supporting its conclusion that

appellant is a dangerous offender. The district court said to appellant:

                     [Your] prior record . . . shows at least seven prior
              assaults, some of them significant, other[s] perhaps not so
              significant, as well as other felony behavior.
                     I understand . . . that you are only 25 years old, but
              given the circumstances, the Court believes that the [s]tate has
              established that you are a dangerous offender with prior
              felonies that put you in the enhanced sentence situation.

There is no requirement that a district court state the specific felonies that put an offender

into the dangerous-offender category, only that it “determine[] on the record at the time of

sentencing that the offender has two or more prior convictions for violent crime.” Minn.


                                             14
Stat. § 609.1095, subd. 2(1). The district court said that the state had established “prior

felonies that put [appellant] in the enhanced sentence situation,” i.e., in the dangerous-

offender category; it did not need to specify which of appellant’s seven undisputed felony

convictions were involved.

       Appellant also argues that “[t]he record was insufficient to find that [he] was a

dangerous offender” because five years elapsed between committing his second felony and

his third (July 30, 2007, to April 4, 2013). But appellant was not released from prison after

the 2007 conviction until April 21, 2011, and he was under parole supervision until

May 25, 2012. His record supports the determination that he is a danger to public safety

as defined in Minn. Stat. § 609.1095, subd. 2(2)(i) (providing that a defendant who has two

or more prior convictions for violent crimes “is a danger to public safety” if his past

criminal behavior indicates a “high frequency rate of criminal activity or juvenile

adjudications, or long involvement in criminal activity including juvenile adjudications”).

       Finally, appellant relies on State v. Branson, 529 N.W.2d 1 (Minn. App. 1995) (in

which the defendant’s criminal involvement extended over 18 years), review denied (Minn.

Apr. 18, 1995) and State v. Kimmons, 502 N.W.2d 391 (Minn. App. 1993) (in which the

defendant committed eight prior felonies), review denied (Minn. Aug. 16, 1993), to argue

that a more extensive criminal record than his is “necessary to support a finding that a

defendant is a ‘dangerous offender.’” But the criteria for dangerous offenders are set out




                                             15
in the statute, and the fact that other offenders have accumulated more extensive criminal

records does not preclude appellant from meeting those criteria.5

                                      DECISION

       In light of appellant’s failure to offer any expert-witness support for his request that

the jury be instructed on cross-racial identification, there was no abuse of discretion in the

denial of that request; the evidence as to appellant’s identity was sufficient for the jury to

reasonably have concluded that appellant was guilty; and appellant met the statutory

criteria for sentencing as a dangerous offender.

       Affirmed.




5
  In his pro se brief, appellant argues that he is entitled to a new trial because the district
court “never obtained [his] consent to charge the jury . . . regarding his failure to testify
[i.e., CRIMJIG 3.17].” But the transcript indicates that the district court read CRIMJIG
3.17 to appellant and told him that whether the instruction would be read to the jury “is a
decision you and your attorney have to make.” Appellant’s attorney then addressed
appellant: “Now, we know this instruction. You just heard it. I agree with the judge [and]
would recommend that we use it. Would you like it used at this time?” Appellant
answered, “Yes, I would.” Thus, appellant’s consent to reading the jury instruction on his
failure to testify was obtained. For this argument, appellant relies on State v. Thompson,
430 N.W.2d 151 (Minn. 1988), but that case does not support his position or his request
for a new trial. “[A] defendant is [not] entitled to a new trial simply because the record on
appeal is silent as to whether the defendant and his attorney wanted the instruction . . . .”
Id. at 153. Here, the record is not silent: appellant’s pro se argument fails.


                                              16
