                        This opinion will be unpublished and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
                                   A14-1579

                                 State of Minnesota,
                                    Respondent,

                                         vs.

                                Brian James Hemphill,
                                      Appellant.

                               Filed January 11, 2016
                                      Affirmed
                                    Reyes, Judge

                              Clay County District Court
                                File No. 14CR132120

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

Brian Melton, Clay County Attorney, Johnathan R. Judd, Assistant County Attorney,
Moorhead, Minnesota (for respondent)

Katherine S. Barrett Wiik, Special Assistant Public Defender, Robins, Kaplan, Miller &
Ceresi, L.L.P., Minneapolis, Minnesota (for appellant)

      Considered and decided by Reyes, Presiding Judge; Hooten, Judge; and Kirk, Judge.
                         UNPUBLISHED OPINION

REYES, Judge

        On appeal following his convictions of fleeing a peace officer in a motor vehicle

and driving after revocation of a driver’s license, appellant argues that the evidence was

insufficient to prove that he was the driver of the truck on May 20, 2013. We affirm.

                                          FACTS

        On the evening of May 20, 2013, occupants in a vehicle traveling on I-94 near the

Fargo-Moorhead area observed a tan pickup truck driving recklessly. The occupants

called police and gave them a physical description of the truck, including the license-

plate number. They continued to follow the truck. Although they lost sight of the truck

for a period of time, they found it again parked in an apartment-complex parking lot.

From approximately 20 yards away, the occupants observed the driver of the truck get

out of the vehicle and remove the license plates. One of the occupants described the

driver of the truck as a Caucasian male, five feet seven inches tall, bald, and wearing a

black shirt and jeans. The occupants did not observe a passenger in the truck.

        Dispatch notified a Moorhead police officer of the truck. After searching the area

for approximately five minutes, the officer found the tan pickup truck, with no license

plates, stopped directly across from him at an intersection. From approximately 25 to 30

feet away, the officer observed the driver of the truck for two or three seconds. The truck

then turned in front of him in the intersection, offering him a closer look of the driver.

The officer described the driver as wearing glasses, a black t-shirt and having a shaved

head.


                                              2
       The officer attempted to stop the vehicle by activing his emergency lights and

siren. However, the truck fled, leading to a high-speed chase through Moorhead. The

officer terminated the chase, after approximately five minutes, due to the level of traffic

and his concerns about public safety.

       The officer determined, by looking up the vehicle’s license-plate number, that the

registered owner of the truck was A.K. and went to his residence. Upon arrival, A.K. told

the officer that he sold the truck to his friend, appellant Brian James Hemphill, and that

appellant told him earlier over the phone that the police were chasing him. While he was

questioning A.K., the officer had A.K. send appellant a text message. Appellant

responded, agreeing to meet law enforcement at a certain location. However, that

meeting never occurred.

       After speaking with A.K., the officer returned to his patrol vehicle and, through a

law-enforcement database, viewed a photograph of appellant. Using the photograph, the

officer identified appellant as the person he saw driving the truck. Later that evening,

A.K. told the officer that appellant had contacted him again and told him that he was

headed back to Jamestown. A.K. subsequently retrieved the truck from one of

appellant’s partners at a farmstead in Jamestown.

       Appellant was charged with fleeing a peace officer in a motor vehicle and driving

after revocation of a driver’s license. A jury trial was held. At trial, the jury heard

testimony from the officer, A.K., and one of the occupants of the vehicle who had

initially alerted police about the truck. The jury also viewed the officer’s squad video

taken during the chase.


                                              3
       The officer identified appellant in the courtroom and testified that he observed

appellant driving the truck. A.K. testified that he did not drive the truck on May 20,

2013, and expected that appellant was in possession of the truck that day. A.K. also

testified that, although appellant resides in Jamestown, he believed appellant was in the

Fargo area that day for work.

       The jury found appellant guilty on both counts. This appeal follows.

                                     DECISION

       Appellant contends that the evidence is insufficient to support his convictions.

Specifically, he argues that the state failed to prove beyond a reasonable doubt that he

was the driver of the truck on May 20, 2013. We disagree.

       When reviewing a claim of insufficient evidence, we undertake “a [thorough]

analysis of the record to determine whether the evidence, when viewed in the light most

favorable to the conviction, was sufficient” to support the conviction. State v. Ortega,

813 N.W.2d 86, 100 (Minn. 2012) (quotation omitted). In doing so, this court 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). “We 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 crime charged. Bernhardt v. State, 684 N.W.2d 465, 476-77

(Minn. 2004) (quotation omitted).

       Both of the charged offenses, fleeing a peace officer in a motor vehicle and

driving after revocation of a driver’s license, required the state to prove beyond a


                                             4
reasonable doubt that appellant was the driver of the truck on May 20, 2013. See Minn.

Stat. §§ 171.24, subd. 2, 609.487, subd. 3 (2012). On appeal, this is the only element of

either offense that appellant challenges.

       A conviction can rest on direct or circumstantial evidence. See, e.g., State v.

Silvernail, 831 N.W.2d 594, 598-600 (Minn. 2013); State v. Flowers, 788 N.W.2d 120,

133-34 (Minn. 2010). Here, the state offered direct and circumstantial evidence to prove

that appellant was the driver of the truck on May 20, 2013. The direct evidence included

the officer’s testimony that he observed appellant driving the truck and appellant

subsequently fleeing from the officer in the truck.1 Because identification by a single

eyewitness is sufficient to sustain a conviction, we conclude that the direct evidence

alone is sufficient to support appellant’s convictions. State v. Williams, 307 Minn. 191,

198, 239 N.W.2d 222, 226 (1976); see also State v. White, 349 N.W.2d 603, 603 (Minn.

App. 1984) (“[E]yewitness testimony by state trooper was sufficient to support finding

that defendant was driving vehicle.”).

       Appellant argues that, given the circumstances, the officer’s identification of him

as the driver of the truck leaves substantial room for reasonable doubt. The

circumstances are that the officer was inside his squad car observing the driver of the

truck, he was approximately 25 to 30 feet away from the truck, he only observed the

driver for two or three seconds, and he did not recognize the driver. Appellant then




1
 Although appellant argued in his brief that the officer’s testimony was circumstantial
evidence, his attorney conceded at oral argument that this was indeed direct evidence.

                                             5
asserts that this court must evaluate the officer’s eyewitness testimony by applying the

following factors set forth by our supreme court in State v. Burch:

              the opportunity of the witness to see the defendant at the time
              the crime was committed, the length of time the person
              committing the crime was in the witness’ view, the stress the
              witness was under at the time, the lapse of time between the
              crime and the identification, and the effect of the procedures
              followed by the police as either testing the identification or
              simply reinforcing the witness’ initial determination that the
              defendant is the one who committed the crime.

284 Minn. 300, 316, 170 N.W.2d 543, 553-54 (1969).2 We are not persuaded.

       “Identification is a question of fact for the jury to determine.” State v. Miles, 585

N.W.2d 368, 373 (Minn. 1998); see also Manson v. Brathwaite, 432 U.S. 98, 116, 97

S. Ct. 2243, 2254 (1977) (stating that unless there is a “very substantial likelihood of

irreparable misidentification,” identification testimony is for the jury to weigh (quotation

omitted)). “Identification testimony need not be absolutely certain; it is sufficient if the

witness expresses a belief that she or he saw the defendant commit the crime.” Miles,

585 N.W.2d at 373. Here, we assume that the jury, which was well aware of the

circumstances of the officer’s identification through defense counsel’s cross-examination

and closing argument, and which received the Burch factors in a jury instruction, found

the officer’s eyewitness testimony to be reliable. See Moore, 438 N.W.2d at 108 (stating

that we must assume “the jury believed the state’s witnesses and disbelieved any



2
  We note that, while appellant advocates for us to apply the Burch factors, Burch
involved a lineup identification by a lay witness and this case involves an identification
by a trained police officer in the course of his duties. 284 Minn. at 303, 170 N.W.2d at
546-47.

                                              6
evidence to the contrary”). The officer who by his profession is trained to observe

suspects, testified that he observed the driver of the truck for two to three seconds when

the driver was across from him. In addition, the officer had a closer look at the driver as

the truck turned in front of him. Further, the officer testified that it was daylight when he

observed appellant, and review of the squad car video confirms this. Finally, the officer

identified appellant as the person who was driving the truck from a law-enforcement-

database photograph that he reviewed shortly after the encounter. Based on this record,

we conclude the jury’s finding is reasonable.

       Moreover, other evidence corroborates the officer’s identification. See State v.

Walker, 310 N.W.2d 89, 90 (Minn. 1981) (stating if a “single witness’[s] identification of

a defendant is made after only fleeting or limited observation, corroboration is required if

the conviction is to be sustained.”). A.K. testified that (1) he expected appellant to be in

possession of the truck on May 20, 2013; (2) he believed appellant to be in the Fargo area

that day for work; and (3) appellant had told A.K., over the phone, that he was being

chased by police. Therefore, we conclude that the direct evidence is sufficient to support

appellant’s convictions for fleeing a peace officer in a motor vehicle and driving after

revocation of a driver’s license.

       Because there is sufficient direct evidence to support the convictions, we need not

consider the additional circumstantial evidence offered by the state. See State v. Porte,

832 N.W.2d 303, 309 (Minn. App. 2013); see also State v. Salyers, 858 N.W.2d 156, 161

(Minn. 2015) (applying traditional standard of review because state introduced sufficient

direct evidence of possession of firearm).


                                              7
Affirmed.




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