State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A16-0690

State of Minnesota,
Respondent,

vs.

Michael Deangelo Ball,
Appellant.

Filed April 3, 2017
Affirmed in part, reversed in part, and remanded
Connolly, Judge

Hennepin County District Court
File No. 27-CR-15-22968

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

Michael O. Freeman, Hennepin County Attorney, Elizabeth Johnston, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

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

Considered and decided by Connolly, Presiding Judge; Larkin, Judge; and Reyes,
Judge.
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U N P U B L I S H E D O P I N I O N
CONNOLLY, Judge
Appellant challenges his convictions, arguing that (1) the district court abused its
discretion in denying his alternative motions for a mistrial or for striking a victim’s in-court
identification of appella nt and in not granting a new trial based on inaccuracies in the
victim’s testimony and (2) the evidence was not sufficient for the jury to reasonably
conclude that appellant was guilty. Because we see no abuse of discretion and sufficient
evidence supports the jury’s verdict, we affirm. However, because there was an error in
the imposition of appellant’s consecutive sentences, we reverse the sentence and remand
for resentencing.
FACTS
Appellant Michael Ball was one of three assailants involved in the robbery and
assault of E.A. and T.S. on August 16, 2015. Appellant fled, was caught by a police officer,
arrested, and put in a squad car; then a medical situation occurred that resulted in his being
transferred to an ambulance and taken to the hospital. The police reports of the incident
stated that identification procedures of the two other assailants by both victims and by some
witnesses were conducted at the scene, but, because appellant was transferred to an
ambulance, only E.A. participated in appellant’s identification procedure.
Appellant was charged with one count of aiding and abetting first -degree assault
and two counts of aiding and abetting first-degree aggravated robbery. In December 2015,
before the jury trial, the prosecutor and a staff member met with victim T.S. He told them
that: (1) the police apprehended three suspects and asked the victims and w itnesses to
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participate in show up identification procedures for the other two suspects, but not for
appellant; (2) T.S. saw the police bring appellant down the sidewalk and put him in an
ambulance; and (3) T.S. definitely recognized appellant as one of the assailants. This
information was provided to appellant’s counsel.1
At the jury trial in January 2016, T.S. described the incident and identified appellant
as one of the assailants whom he saw in the courtroom. T.S. also said, for the first time,
that he had participated in a show up identification procedure of appellant while appellant
was in the ambulance. Because this testimony was new to both parties and conflicted with
the police reports and with what T.S. had told the prosecutor, appellant’s counsel moved
for a mistrial or to strike T.S.’s testimony identifying appellant.
The jury was then dismissed, and the district court questioned appellant’s counsel.
Q: [C]orrect me if I’m wrong, . . . [but] you are not
suggesting that the State intentionally withheld any
information from you.
A: I am not. . . . [A]ssuming the show up did happen as
[T.S.] said, it was just something that he neglected to mention.
. . . .
Q: And not only would he have neglected to mention it, the
police would have neglected to mention it in their reports.
. . . [I]t seems to me if the show up didn’t happen, that
actually would not prejudic e but would benefit the defense
because [T.S.] appears to recall an event that didn’t occur.

After hearing that three of the officers involved all said the only showup of appellant was
to E.A., the district court said:
I think we should go forward. I think that [T.S.] is certainly
subject to cross-examination about the accuracy of that report.
I think there’s reason to believe that [the showup] didn’t occur

1 Appellant was represented by different counsel at trial.
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based on the investigation . . . done so far. If it becomes clear
that it did happen and that the police neglected to report it, I
would reconsider the defense’s motion [for a mistrial]. But at
this time, the defense’s motion is denied and we’ll proceed
with testimony.

Appellant’s counsel argued that, if counsel had known T.S. identified appell ant in
the ambulance during a showup procedure instead of on the sidewalk without a showup
procedure, counsel might have challenged the circumstances of that identification before
trial to preclude T.S.’s in-court identification of appellant. Other witnesses and the police
involved all testified that the only person to identify appellant at a showup procedure was
E.A.
The district court denied the motions for a mistrial and to strike T.S.’s in -court
identification of appellant. The jury found appellant g uilty as charged. Appellant
challenges the denial of the motions , the sufficiency of the evidence to support the jury’s
verdict, and his sentence.
D E C I S I O N
1. Mistrial motion
The denial of a mistrial is reviewed for an abuse of disc retion. State v. Spann, 574
N.W.2d 47, 52 (Minn. 1998) (mistrial based on prosecutorial misconduct in failing to
provide discovery). A mistrial should be granted only if there is a reasonable probability,
in light of the entirety of the trial, that the outcome would have been different if the incident
giving rise to the motion for a mistrial had not occurred; the district court is in the best
position to de termine whether the incident was so prejudicial as to require a mistrial or
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whether another remedy will suffice. State v. Manthey, 711 N.W.2d 498, 506 -07 (Minn.
2006).
Despite appellant’s counsel having said at trial that the State did not intentionally
withhold information, appellant now argues that “ [t]he State’s failure to disclose T.S.’s
show-up identification procedure of appellant was prejudicial ” and that he is entitled to a
new trial because, without T.S.’s erroneous testimony that he recognized ap pellant in a
showup, the jury might not have found appellant guilty.
But the jury had at least four reasons other than T.S.’s testimony to find appellant
guilty. First, the jury saw and heard a video of an officer telling E.A. to look in the
ambulance and asking him, “[J]ust yes or no, is that one of the guys [who assaulted you]?”
to which E.A. answered, “Yes.” Second, the jury heard a witness to the incident, R.M.,
identify appellant in court as one of the assailants and as the man who was put into an
ambulance. Third, the jury heard T.S. testify that a man wearing the clothes appellant was
wearing at the time of the incident was the only man within one foot of T.S. during the
incident and was the man standing by T.S.’s truck in a video of the incident . Fourth, the
jurors heard one officer testify that he: (1) chased appellant on foot, (2) caught him, (3) was
positive appellant was one of the three men whom E.A. ha d identified as assailants,
(4) arrested appellant and put him in a squad car, (5) transferred appellant to an ambulance,
(6) did one show up identification by taking E.A. to the back of the ambulance where
appellant was lying on a cot, (7) saw E.A. identify appellant, (8) followed appellant to the
hospital, and (9) eventually took appellant to jail.
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Taken as a whole, all the evidence from victims, witnesses, and police officers that
appellant was one of the assailants defeats appellant’s argument that , if T.S.’s testimony
that he saw appellant as part of a show up as well as during the assaul t had been disclosed
to the defense before trial, the outcome of the trial might have been different.
2. Motion to strike
Appellant’s counsel also asked the court for an alternative to the mistrial: “strik[ing]
the testimony from [T.S.] identifying [appe llant] at this time and prohibit[ing T.S.] from
making any further identification in the court as a result of this.” 2 Counsel for the state
objected:
[T.S.] was asked whether he could make an in -court
identification based on this person, and he made the
identification. And I said, “What do you remember [appellant]
doing?” And he said, “Punching [me] in the face.” You see in
the video a man that’s wearing exactly the same clothes as
[appellant was wearing] punching [T.S. ] in the face. There’s
an independent basis for you to feel very confident that that
identification was truthful and accurate.

The district court responded:
I think that the in-court identification would be something that
I would tell the jury to disregard if I believed that it was tainted
by an improper show-up. In this case it seems to me that there
wasn’t a show up, that the witness [T.S.] is certainly
impeachable about whether that event happened. And that may
affect the credibility of his identification of [appellant], but . . .

2 Although at trial appellant’s counsel asked to strike only T.S.’s in-court identification, he
argues on appeal that he is entitled to a new trial because the trial court “did not strike
T.S.’s testimony [concerning the showup] or give the jury a curative instruction.” Because
appellant did not ask to have the testimony about the showup stricken or to have a curative
jury instruction given, those issues are not properly before us. See Roby v. Stat e, 547
N.W.2d 354, 357 (Minn. 1996) (this court does not generally consider matters not
presented to and considered by the district court).
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there wasn’t a constitutional violation that would lead to a
suppression of the in-court identification, at least at this point.
And again, if it becomes clear that there was a show-up,
then I would need to examine whethe r that show -up infected
the in -court identification. But at this point, . . . I have no
reason to think that there was a show -up. And so . . . I can’t
make a finding that there was a sho w-up, that it was
impermissible or that it infected the in-court identification. So
I will not strike that identification testimony; however, [T.S.]
is certainly subject to cross-examination about the reliability of
his memory with regard to the events in general based o n the
testimony so far.

Appellant argues that nothing was done to correct T.S.’s false testimony, but he does
not say what else could have been done. T.S. was cross-examined about his identification
of appellant, and the police officers and other witnesses were also examined. T he district
court not only arranged for conflicting testimony from several sources to refute T.S.’s
account of a show up; it also planned for appropriate actions depending on what that
testimony would reveal. Appellant did not, at the time, seek either to strike the show up
testimony or to have a curative jury instruction given.
Finally, appellant relies on Ferguson v. State, 645 N.W.2d 437 (Minn. 2002). But
Ferguson is distinguishable. In that case, the defendant was arrested shortly after a murder,
denied knowledge of it, and was released. Ferguson, 645 N.W.2d at 441. Afterwards, a
third party informed police that, on the morning of the murder, the defendant had said he
was going to shoot the victim and had later confessed to shooting the victim. Id. The
defendant was re -arrested, the third party testified at his trial, and the defendant was
convicted. Id. The third part y later allegedly told a fourth party that the third party’s
testimony at the defendant’s trial had been a lie. Id. The defendant then submitted a
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petition for postconviction relief with a notarized statement from the fourth party
confirming the third party’s alleged recantation. Id. at 442. The defendant’s petition was
denied on the ground that, because “[the] court could not be reasonably well-satisfied that
[the third party’s] trial testimony was false based on [the fourth party’s] statement alone,”
the defendant had not established, by a preponderance of the evidence, facts that would
entitle him to a new trial. Id. at 445-46.
Ferguson applied the three-prong test for newly discovered evidence of falsified
testimony set out in Larrison v. United States, 24 F.2d 82, 87-88 (7th Cir. 1982). First, the
court is reasonably satisfied that the testimony of a material witness was fal se; second
without the false testimony, the jury might have reached a different conclusion; and third,
the petitioner either was taken by surprise at trial or did not know the testim ony was false
until after trial. Ferguson, 645 N.W.2d at 442. Unlike Ferguson, this case does not involve
the post-conviction discovery of evidence of falsified testimony that was material to the
conviction. Here, the testimony offered during trial was new to both parties; it conflicted
not with the witness’s prior testimony but with his pretrial statements to the prosecutor,
and its significance to appellant’s conviction was minimal. Appellant’s reliance on
Ferguson is misplaced.
3. Sufficiency of the evidence
Appellant argues that the evidence was not sufficient to establish that E.A. suffered
the “great bodily harm” requ ired for first -degree assault. “The question of whether a
particular injury constitutes great bodily harm is a question for the jury” and “[w]hether [a
victim’s] injuries constituted great bodily harm [i]s a question within the knowledge and
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experience of the jury.” State v. Moore, 699 N.W.2d 733, 737, 740 (Minn. 2005) (quotation
omitted).
The jury was instructed that, to find appellant g uilty, it had to find that he inflicted
great bodily harm on E.A. and that “‘Great bodily harm’ means bodily harm that creates a
high probability of death, or causes serious permanent disfigurement, or causes a
permanent or protracted loss or impairment of the function of any [part of the body ], or
other serious bodily harm.” The jury heard E.A. testify that he was beaten, his head was
stomped into the street, he passed out several times, and he suffered a traumatic brain injury
resulting in severe headaches, sensitivity to light, loss of balance, and memory loss, as well
as a decrease in his ability to sleep, walk, exercise, eat, and perform his job. Jury
determinations that lesser injuries constitute great bodily harm have been upheld. See, e.g.,
State v. Stafford , 340 N.W.2d 669, 670 (Minn. 1983) (holding that a fractured nose
constituted great bodily harm and that great bodily harm is “[a]rguably . . . inflicted if one
knocks someone out briefly”). We see no basis to overturn the jury’s verdict that g reat
bodily harm was inflicted on E.A.
4. Sentence
The parties agree that the case should be remanded because appellant’s consecutive
sentences should have b een calculated using a criminal -history score of zero. See Minn.
Sent. Guidelines 2.F.2.a (2015); State v. Holmes, 719 N.W.2d 904, 908 (Minn. 2006) (“If
a consecutive sentence is permissive . . . , a criminal history score of zero is assigned to
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determine the duration of the sentence.”). Because we agree that appellant’s sentence was
incorrectly calculated, we reverse and remand for resentencing.
Affirmed in part, reversed in part, and remanded.