                           This opinion will be unpublished and
                           may not be cited except as provided by
                           Minn. Stat. § 480A.08, subd. 3 (2014).

                                STATE OF MINNESOTA
                                IN COURT OF APPEALS
                                      A14-0885

                                     State of Minnesota,
                                         Respondent,

                                             vs.

                                   Jyron Mendale Young,
                                         Appellant.

                                   Filed March 23, 2015
                                         Affirmed
                                      Johnson, Judge

                               Hennepin County District Court
                                 File No. 27-CR-13-34271

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Michael O. Freeman, Hennepin County Attorney, Kelly O’Neill Moller, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, St. Paul, Minnesota; and

Debra K. Kovats, Special Assistant State Public Defender, St. Louis Park, Minnesota (for
appellant)

         Considered and decided by Halbrooks, Presiding Judge; Johnson, Judge; and Larkin,

Judge.
                           UNPUBLISHED OPINION

JOHNSON, Judge

       A Hennepin County jury found Jyron Mendale Young1 guilty of aiding and abetting

attempted aggravated first-degree robbery. Young argues that the evidence is insufficient to

support his conviction, that the district court erred in its jury instructions, that he received

ineffective assistance of counsel, and that the district court erred in its sentence. We affirm.

                                            FACTS

       Young’s conviction arises from an attempted robbery of a man who was walking on

the sidewalk of a residential neighborhood in south Minneapolis in the early-morning hours

of October 4, 2013. W.G. and his wife, B.W., went for a walk shortly after midnight after

moving into a new apartment and unpacking their belongings. They were walking in a

westerly direction on East 29th Street. W.G. carried B.W.’s purse in his hand and his wallet

in his back pocket. When the couple approached the corner of 13th Avenue South, a small

group of people came alongside them. One member of the group was B.W.’s cousin, who

approached B.W. and gave her a hug. B.W. and her cousin walked ahead of W.G. The

cousin turned around more than once to tell others in her group that B.W. is her cousin.

       As W.G. was walking behind B.W., a man in a black jacket came alongside W.G.

and said something like, “I’m ready.” W.G. was then punched in the back of the neck,


       1
         Appellant also is known as Jyron Woodard. The state identified him in the
complaint as Jyron Mendale Young. Before trial, the district court granted appellant’s
motion in limine to be called Jyron Woodard during trial. Appellant’s name appears in the
caption of our opinion as Jyron Mendale Young because that is the way it appeared in the
district-court caption. See Minn. R. Civ. App. P. 143.01. In addition, appellant signed his
pro se supplemental brief as Jyron Mendale Young.

                                               2
which caused him to fall to the ground and caused his vision to become “fuzzy.” One

assailant pulled on the purse that W.G. was carrying, while another reached into W.G.’s

back pocket. At trial, W.G. described the two persons who attacked him as two black men,

one wearing a black jacket and one wearing a red jacket.

      B.W. turned around when she heard scuffling. She testified at trial that she saw a

man in a black jacket and a man in a red jacket standing over W.G. B.W. ran to help W.G.

but was knocked down by the man in the black jacket. While on the ground, B.W. began

kicking, trying to get the assailants away from W.G., which caused one of her shoes to fall

off. Meanwhile, W.G. got to his feet and was confronted by the man in the red jacket.

W.G. described the man at trial as a dark-skinned man with “poufy” hair. After B.W. stood

up, the man in the red jacket offered her the shoe that had fallen off her foot. Because she

was afraid that the man might harm her, she refused the shoe and walked towards W.G.

B.W. saw the assailants approach a red vehicle before they proceeded east on 29th Street.

      W.G. called 911. Minneapolis Police Officers Todd Harder and Jeffrey Perkins

responded in less than one minute.      Officer Harder spoke with W.G. and B.W., who

described the assailants as two black males, approximately 30 years old, one wearing a

black and white jacket and the other wearing a red jacket. W.G. and B.W. then joined

Officer Harder in his squad car to help him find the assailants. They found the man in the

black jacket, and he was arrested. W.G. and B.W. later saw the man in the red jacket.

Officer Harder was unable to apprehend him because only one squad vehicle was present.

      W.G. and B.W. left the squad vehicle and walked back to the scene of the attempted

robbery to find B.W.’s shoe. They again spotted the man in the red jacket and alerted a


                                             3
nearby squad car. When the man was arrested, B.W. told the police officer that he was the

“good one” because he had tried to return her shoe. But W.G. informed the police officer

and B.W. that the man in the red jacket is the man who had hit him and tried to steal his

wallet. Before he was placed in the squad car, the man in the red jacket told B.W. that he

had left her shoe on top of a car. W.G. and B.W. later found the shoe on top of the red car

that was parked near the scene of the attempted robbery.

       After his arrest, the man in the red jacket was identified as Young. Later that

morning, W.G. and B.W. provided statements to Sergeant Billy Peterson. Both W.G. and

B.W. told Sergeant Peterson that they were certain that the assailants were the man in the

black jacket and the man in the red jacket. Sergeant Peterson later interviewed Young, who

stated that he was merely near the scene of the crime, standing on the southeast corner of

East 29th Street and 12th Avenue South. Young said he observed a “two-on-two fight”

involving two Native American females and “a little Mexican dude” and “a black dude.”

Young told Sergeant Peterson that, after the fight ended, he picked up B.W.’s shoe, offered

it to her, and then left it on top of the red car.

       The state charged Young with one count of aiding and abetting attempted aggravated

first-degree robbery, in violation of Minn. Stat. § 609.245, subd. 1 (2012), and one count of

aiding and abetting fifth-degree assault, in violation of Minn. Stat. § 609.224, subd. 1(2)

(2012). The state voluntarily dismissed the fifth-degree assault charge before trial.

       The case was tried over four days in January 2014. The state called five witnesses:

W.G., B.W., Officer Harder, Officer Perkins, and Sergeant Peterson. Young did not present




                                                     4
any evidence. The jury found Young guilty. In February 2014, the district court sentenced

Young to 34 months of imprisonment. Young appeals.

                                      DECISION

                              I. Sufficiency of the Evidence

      Young argues, both through counsel and in his pro se supplemental brief, that the

state’s evidence is insufficient to support his conviction. When considering a sufficiency-

of-the-evidence claim, this court conducts “a painstaking analysis of the record to determine

whether the evidence, when viewed in a light most favorable to the conviction, was

sufficient to permit the jurors to reach their verdict.” State v. Caine, 746 N.W.2d 339, 356

(Minn. 2008) (quotation omitted). We assume that the jury “believed the state’s witnesses

and disbelieved any contrary evidence.” Gulbertson v. State, 843 N.W.2d 240, 245 (Minn.

2014) (quotation omitted). “[W]e will not disturb the verdict if the jury, 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 charged offense.”

State v. Ortega, 813 N.W.2d 86, 100 (Minn. 2012) (citing Bernhardt v. State, 684 N.W.2d

465, 476-77 (Minn. 2004)).2



      2
        In his pro se supplemental brief, Young contends that his conviction is based on
circumstantial evidence. “Direct evidence” is “evidence that is based on personal
knowledge or observation and that, if true, proves a fact without inference or presumption.”
Bernhardt, 684 N.W.2d at 477 n.11 (quotation and alteration omitted). “Circumstantial
evidence,” on the other hand, “is defined as evidence based on inference and not on personal
knowledge or observation and all evidence that is not given by eyewitness testimony.” Id.
(quotation and alterations omitted). The state relied primarily on the testimony of W.G. and
B.W., both of whom were present and able to observe the incident in which the offense was
committed. The state’s direct evidence is sufficient to support Young’s conviction.

                                             5
       Young contends that the state’s evidence is insufficient because it does not prove

beyond a reasonable doubt that he was the man in the red jacket who participated in the

attempted robbery. He contends that the state’s evidence rests on the testimony of W.G.,

whose testimony, according to Young, was “weak and confusing.” Young contends that

W.G.’s testimony was not credible because W.G. was “under extreme stress while he was

being attacked and even testified that his head ‘lost reception’ and his vision was fuzzy.”

       As an initial matter, we question Young’s assertion that the state’s case rests entirely

on W.G.’s testimony.      The state also presented the testimony of B.W., who was an

eyewitness to the encounter. Young contends, however, that B.W.’s testimony does not

help the state because she told police that Young “had done nothing wrong and, in fact, tried

to help her.” This is not a complete and accurate characterization of B.W.’s testimony.

B.W. told a police officer when they apprehended Young on the evening of the crime that

Young was the “good one,” but she told Sergeant Peterson the day after the incident that she

was confident that Young was one of the assailants. Also, she testified at trial that she was

mistaken when she initially told the officer that the man in the red jacket was not involved

in the incident. Furthermore, she testified at trial that two men stood over W.G. when the

attempted robbery occurred, one of whom was wearing a red jacket, and she identified

Young as the man who was wearing the red jacket.

       In any event, Young’s challenges to the state’s witnesses’ testimony is primarily a

matter for the jury. Young contends that W.G. is not credible. But the evaluation of a

witness’s credibility also is for the jury, and we must assume that the jury believed the

evidence supporting the state’s case and disbelieved any contrary evidence.           State v.


                                              6
Hanson, 800 N.W.2d 618, 622 (Minn. 2011). In this case, the jury had the opportunity to

evaluate the credibility of W.G.’s testimony, and the verdict indicates that the jury adopted

W.G.’s and B.W.’s version of the facts. As Young acknowledges, the uncorroborated

testimony of a single credible witness can sustain a conviction. State v. Bliss, 457 N.W.2d

385, 390 (Minn. 1990). Here, the state also offered the corroborating testimony of Officer

Harder, Officer Perkins, and Sergeant Peterson. They testified to the events of the night of

the attempted robbery, the identifications of Young made by W.G. and B.W., and Young’s

statement that he was in the area of the crime at the time of the attempted robbery and

witnessed the crime but did not take part in it. Contrary to Young’s contention, the state’s

case did not rest solely on W.G.’s testimony, and even if it did, we must defer to the jury’s

credibility determinations.

       In sum, when viewed in the light most favorable to the verdict, the evidence is

sufficient to support the conviction of aiding and abetting attempted aggravated first-degree

robbery.

                                II. Eyewitness Instruction

       Young also argues that the district court erred by not giving the jury an instruction

concerning eyewitness identifications.

       A district court must instruct the jury in a way that “fairly and adequately explain[s]

the law of the case” and does not “materially misstate[] the applicable law.” State v. Koppi,

798 N.W.2d 358, 362 (Minn. 2011). To determine whether jury instructions fairly and

adequately explain the law of the case, the instructions must be viewed in their entirety.

State v. Milton, 821 N.W.2d 789, 805 (Minn. 2012). If an instruction “correctly states the


                                              7
law in language that can be understood by the jury, there is no reversible error.” State v.

Anderson, 789 N.W.2d 227, 239 (Minn. 2010) (quotation omitted). A district court has

“considerable latitude” in selecting language for jury instructions. State v. Gatson, 801

N.W.2d 134, 147 (Minn. 2011) (quotation omitted). Accordingly, we apply an abuse-of-

discretion standard of review to a district court’s jury instructions. State v. Ndikum, 815

N.W.2d 816, 818 (Minn. 2012).

       At the instructions conference in this case, Young’s trial counsel asked the district

court to give the following instruction, which is a pattern instruction:

                      Testimony has been introduced tending to identify the
              defendant as the person observed at the time of the alleged
              offense. You should carefully evaluate this testimony. In doing
              so, you should consider such factors as the opportunity of the
              witness to see the person at the time of the alleged offense, the
              length of time the person was in the witness’s view, the
              circumstances of that view, including light conditions and the
              distance involved, the stress the witness was under at the time,
              and the lapse of time between the alleged offense and the
              identification. (If the witness has seen and identified the person
              before trial and after the alleged offense, you should also
              consider the circumstances of that earlier identification, and you
              should consider whether in this trial the witness’s memory is
              affected by that earlier identification.)

See 10 Minnesota Dist. Judges Ass’n, Minnesota Practice – Jury Instruction Guides § 3.19,

at 55 (5th ed. 2006). The district court denied Young’s request, noting that the instruction

might be appropriate in “certain circumstances” but reasoning that defense counsel was

capable of challenging the eyewitness testimony in closing argument in the absence of the

requested instruction, without the court effectively becoming “a witness.”




                                               8
       On appeal, Young argues that “[b]y failing to advise the jury that it should not only

evaluate [W.G.’s] credibility but also the reliability of [W.G.’s] identification, the [district]

court created the likelihood that the jury automatically accepted his identification of Young

as reliable.” In response, the state contends that the district court adequately instructed the

jury on its duty to determine witness credibility by giving this preliminary instruction at the

beginning of trial:

                     Now, as jurors one of your most important jobs is to
              evaluate the credibility of the witnesses and their testimony. In
              doing so, you should and may take note of the following: The
              circumstances under which the witness learned about the facts;
              the witness’s ability to remember and tell the facts; the witness’s
              interest in the outcome of the case; the relationship that the
              witness has to the parties; the witness’s frankness and sincerity
              or the lack thereof; the reasonableness or unreasonableness of
              the witness’s testimony; whether the witness’s testimony is
              corroborated by or consistent with other believable evidence in
              the case; whether the witness has said something on a prior
              occasion which is inconsistent with his or her present testimony;
              whether the witness has been convicted of a crime, especially
              one involving dishonesty or false statement; and any other factor
              that bears on the question of the witness’s believability and the
              weight to be given to their testimony. You should in the last
              analysis rely on your own experience, judgment and common
              sense when it comes to assessing the credibility of witnesses.

See 10 Minnesota Dist. Judges Ass’n, Minnesota Practice – Jury Instruction Guides § 3.12,

at 44 (5th ed. 2006).

       Our review of the record reveals that the district court’s preliminary instruction

adequately apprised the jury of potential issues concerning eyewitness identification. The

preliminary instruction concerning witness credibility in general provided guidance to the

jury with respect to testimony about an eyewitness identification.             The preliminary



                                               9
instruction accurately explained to the jury its duty to evaluate the credibility of the

witnesses, and it provided the jury with numerous factors it should consider in making such

an evaluation.

       Young has not cited any opinion in which an appellate court has held that the refusal

to give the requested instruction was error. The most favorable case cited in his brief is

State v. Bishop, 289 Minn. 188, 183 N.W.2d 536 (Minn. 1971). In that case, the appellant

argued that the district court had erred by denying his request for an instruction that warned

about eyewitness-identification testimony. Id. at 194-95, 183 N.W.2d at 540. The supreme

court noted that “serious consideration should be given to such requests where the

circumstances raise any possible doubt in the court’s mind as to the reliability of the

identification,” id. at 195, 183 N.W.2d at 540 (quotation omitted), but that a district court

should not “giv[e] the jury the impression that there was an inherent vice in the

identification evidence” if the evidence is not unreliable, id. at 195, 170 N.W.2d at 541. The

supreme court ultimately rejected the appellant’s argument because the district court’s

instructions adequately addressed the issue by referring to the weight and credibility of

witness testimony, and because defense counsel had an opportunity to test the credibility of

the state’s witness on cross-examination and to challenge the weight and credibility of the

state’s evidence in closing argument. Id. at 196, 183 N.W.2d at 541. Similarly, in this case,

the district court expressed its awareness of the caselaw making the requested instructions

appropriate in “certain circumstances” but exercised its discretion by not giving the

instruction in this case. Young has not persuaded us that W.G.’s and B.W.’s identification

of Young, which was based in part on their pointing him out to an officer on the night of the


                                             10
crime, is unreliable. Furthermore, Young’s trial counsel had an opportunity to test the

credibility of W.G. and B.W. on cross-examination and challenged their identifications in

closing argument.

       Young also argues that the district court erred because “CRIMJIGs are the law” and

“the court is obligated to provide the law to the jury.” Young is incorrect. The pattern jury

instruction on which Young relies is not, in and of itself, binding law. There is no authority

for the proposition that the pattern jury instruction at issue has been either adopted or

approved by the supreme court.        The pattern jury instructions are published by the

Minnesota District Judges’ Association and are simply a resource for district court judges

and attorneys. See Rowe v. Munye, 702 N.W.2d 729, 734 n.1 (Minn. 2005). The pattern

jury instructions merely “express the opinion of the Minnesota District Judges Association

Committee on Criminal Jury Instruction Guides.” State v. Broulik, 606 N.W.2d 64, 70

(Minn. 2000). The pattern jury instructions are not binding law. See State v. Peterson, 673

N.W.2d 482, 484 n.1 (Minn. 2004); see also Rowe, 702 N.W.2d at 734 n.1; Broulik, 606

N.W.2d at 70.

       Thus, the district court did not err by refusing to give Young’s requested jury

instruction concerning eyewitness identification.

                                  III. Pro Se Arguments

       In his pro se supplemental brief, Young makes two additional arguments.

A.     Effectiveness of Counsel

       Young argues that he received ineffective assistance of counsel. To prevail on a

claim of ineffective assistance of counsel, Young “must affirmatively prove [1] that his


                                             11
counsel’s representation ‘fell below an objective standard of reasonableness’ and [2] ‘that

there is a reasonable probability that, but for counsel’s unprofessional errors, the result of

the proceeding would have been different.’” Gates v. State, 398 N.W.2d 558, 561 (Minn.

1987) (quoting Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S. Ct. 2052, 2064,

2068 (1984)). A person seeking to establish a claim of ineffective assistance of counsel

“bears the burden of proof on that claim.” State v. Jackson, 726 N.W.2d 454, 463 (Minn.

2007).     To satisfy that burden, an appellant “must do more than offer conclusory,

argumentative assertions, without factual support.” See State v. Turnage, 729 N.W.2d 593,

599 (Minn. 2007). An appellate court need not analyze both prongs of the Strickland test if

an analysis of one prong is determinative. Leake v. State, 767 N.W.2d 5, 10 (Minn. 2009).

         Young identifies eight different ways in which his trial counsel allegedly was

ineffective: (1) by not meeting with Young before trial other than at court appearances,

(2) by not challenging the issue of probable cause before trial, (3) by not moving to suppress

certain evidence before trial, (4) by not moving for a judgment of acquittal, (5) by not

challenging the state’s identification evidence before trial, (6) by declining a jury instruction

on Young’s constitutional right to testify, (7) by not challenging the length of Young’s

sentence, and (8) by not conducting a more vigorous investigation before trial.

         “Generally, an ineffective assistance of counsel claim should be raised in a

postconviction petition for relief, rather than on direct appeal.” State v. Gustafson, 610

N.W.2d 314, 321 (Minn. 2000).           The reason for this general preference is that a

“postconviction hearing provides the court with ‘additional facts to explain the attorney’s

decisions,’ so as to properly consider whether a defense counsel’s performance was


                                               12
deficient.” Id. (quoting Black v. State, 560 N.W.2d 83, 85 n.1 (Minn. 1997)). Without those

additional facts, “any conclusions reached by [an appellate] court as to whether [a

defendant’s] attorney’s assistance was deficient would be pure speculation.” Id.; see also

Arredondo v. State, 754 N.W.2d 566, 571 n.4 (Minn. 2008); Jackson, 726 N.W.2d at 463;

State v. Barnes, 713 N.W.2d 325, 335 (Minn. 2006). But if the trial record is sufficiently

developed such that an ineffectiveness claim can be decided based on that record, an

appellate court may consider the claim on direct appeal. Torres v. State, 688 N.W.2d 569,

572 (Minn. 2004). Given the record that was developed at trial in this case, we are able to

review three of Young’s ineffectiveness claims on direct appeal.

      First, Young’s fourth ineffectiveness claim is that his trial counsel was ineffective

because he did not move for a judgment of acquittal. This claim is without merit because

Young cannot establish the second requirement of the Strickland test, “‘that there is a

reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.’” See Gates, 398 N.W.2d at 561 (quoting Strickland,

466 U.S. 694, 104 S. Ct. at 2068). In this appeal, Young has challenged the sufficiency of

the evidence, and we have concluded that the state’s evidence is sufficient to support

Young’s conviction. See supra part I. A motion for judgment of acquittal would have

tested the same body of evidence according to the same legal standard.        See State v.

McCormick, 835 N.W.2d 498, 506 (Minn. App. 2013), review denied (Minn. Oct. 15, 2013).

Thus, even if Young’s trial counsel unreasonably decided not to move for a judgment of

acquittal, Young was not prejudiced.




                                            13
         Second, Young’s sixth ineffectiveness claim is that his trial counsel was ineffective

because he declined a jury instruction on Young’s right to testify or not testify. This claim

also is without merit because the trial record demonstrates that Young’s trial counsel

considered the potential advantages and disadvantages of such an instruction, advised

Young of those factors on the record, and reasonably elected not to do so for strategic

reasons. The district court specifically asked Young’s trial counsel whether he wanted an

instruction stating that Young had no obligation to testify, but Young’s trial counsel

explained that Young was “better off not redefining it.” The record demonstrates that

Young’s trial counsel was adequately informed of the relevant factors and made a

reasonable strategic decision to decline the instruction.        We must give considerable

deference to counsel’s strategic decisions that are appropriately informed. See Strickland,

466 U.S. at 690-91, 104 S. Ct. at 2066. Thus, Young has failed to demonstrate that his trial

counsel unreasonably declined a jury instruction on Young’s right to testify or not testify at

trial.

         Third, Young’s seventh ineffectiveness claim is that his trial counsel was ineffective

because he failed to challenge his 34-month sentence. This claim is without merit because

Young cannot establish the second requirement of the Strickland test, that the result of the

sentencing hearing would have been different. See Gates, 398 N.W.2d at 561. In this

appeal, Young has challenged his sentence in his pro se supplemental brief. We address it

below. See infra part III.B. The analysis on direct appeal is substantively identical to the

analysis that would have applied at the sentencing hearing because we apply the same legal




                                               14
standard to the same record. Thus, even if Young’s trial counsel unreasonably decided to

not challenge the length of Young’s sentence, Young was not prejudiced.

       With respect to the remainder of Young’s ineffectiveness claims, the record of the

trial is not adequately developed. The trial record is silent as to, among other things, the

extent of counsel’s investigation of the relevant law and facts, whether any of counsel’s

decisions were based on strategic reasons, and whether any strategic decisions were

reasonable. See Strickland, 466 U.S. at 690-91, 104 S. Ct. at 2066; Barnes, 713 N.W.2d at

335; Gustafson, 610 N.W.2d at 321.         Young’s arguments are more appropriate for a

postconviction hearing, which “provides the court with additional facts to explain the

attorney’s decisions, so as to properly consider whether a defense counsel’s performance

was deficient.” Gustafson, 610 N.W.2d at 321 (quotation omitted). Young’s right to pursue

his remaining ineffectiveness claims in a petition for post-conviction relief is preserved. See

Arredondo, 754 N.W.2d at 571 n.4; Jackson, 726 N.W.2d at 463; Gustafson, 610 N.W.2d at

321.

B.     Length of Sentence

       Young argues that the district court erred by imposing a sentence that is longer than

authorized by the sentencing guidelines. Specifically, he contends that the district court

should have imposed a sentence only half as long as the sentence that was imposed because

he was convicted of aiding and abetting an attempted aggravated robbery, not a completed

aggravated robbery.

       Before sentencing, Young had three criminal-history points.          The presumptive

sentence for first-degree aggravated robbery, a level VIII offense, for an individual with


                                              15
three criminal-history points, is 67 to 93 months, with a mid-point of 78 months. Minn.

Sent. Guidelines 4.A. (Supp. 2013) (sentencing guidelines grid). A person who “attempts to

commit a crime may be sentenced . . . to not more than one-half of the maximum

imprisonment.”     Minn. Stat. § 609.17, subd. 4(2) (2012).      In addition, the applicable

guidelines range is one-half of the range that would apply to a completed offense. Minn.

Sent. Guidelines 2.G.2 (Supp. 2013).       In light of the statute and the guideline, the

presumptive guidelines range applicable to Young is 33.5 to 46.5 months. See id. The

district court imposed a sentence of 34 months, which is within the modified presumptive

guidelines range. Thus, the district court did not err by failing to impose a sentence half as

long as the sentence that would apply to aiding and abetting a completed aggravated

robbery.

       Affirmed.




                                             16
