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This opinion will be unpublished and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
A17-0389

State of Minnesota,
Respondent,

vs.

Daniel James Hart,
Appellant.

Filed February 5, 2018
Affirmed
Smith, Tracy M., Judge

Hennepin County District Court
File No. 27-CR-15-24661

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

Michael O. Freeman, Hennepin County Attorney , Jean Burdorf, A ssistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Julie Loftus Nelson, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Smith, Tracy M., Presiding Judge; Larkin, Judge; and
Hooten, Judge.
U N P U B L I S H E D O P I N I O N
SMITH, TRACY M., Judge
Appellant Daniel Hart challenges his convictions of first-degree aggravated robbery
and second-degree assault, arguing that the ev idence presented at trial was insufficient to

2
prove beyond a reasonable doubt that he was one of the three masked men who robbed a
man at gunpoint. Because the evidence was sufficient to prove identity, we affirm.
FACTS
Hart’s convictions stem from the armed robbery of E.B. On the evening of May 8,
2015, E.B. was in the garage of his Minnea polis home, cleaning his car, when a green
Chevrolet Tahoe drove up. The driver—later identified as Dementry Loyd—got out of his
car and briefly talked with E.B. before wavi ng his hand over his head and driving away.
Immediately after this, three black males, all wearing masks, approached E.B. The
gunman—later identified as Da ryll Keys—held a gun to E.B.’s head and told him to put
his hands up. While Keys held the gun to E.B.’s head, the other two assailants “cleaned
out” E.B.’s pockets and went through his car. Items stolen included a silver cross necklace
and a Rolex watch.
E.B. immediately called the police. E.B. described the assailants as three black
males. He said the gunman was the tallest assailant, with white jeans and shoulder-length
dreadlocks sticking out from his hoodie. E.B. recalled the other two assailants wearing
jeans and hoodies. E.B. also recalled the youngest-looking assailant stopping the gunman
from shooting him.
Two days after the robbery, E.B.’s da ughter showed him photos from Loyd’s
Facebook page featuring Loyd and two other men—later iden tified as Hart and Keys—
wearing what appeared to be E.B.’s stolen jewelry. Hart was wearing the stolen cross
necklace. E.B. called the police to report what his daughter had found. E.B. identified the
three individuals in the photo as the men who had robbed him. E.B. based his identification

3
on the clothing the men in the pictures were wearing, claiming it was the same clothing
worn by the men who had robbed him. E. B. did not express a ny uncertainty in his
identification of the three assailants.
The next day, E.B. met with the inves tigating officer, showed him the Facebook
photos, and provided a recorded statement. Again, E.B. identified the three men in the
photos as the ones who had robbed him, specifically noting that his assailants included the
“shortest” man in the group picture, and conf irmed that they were all wearing the same
clothes they had during the robbery. E.B. also identified the black ski mask, shown in
some of the pictures, as the same mask that a ll three of the assailants had been wearing.
E.B. described each man’s role in the robbery, identifying Hart as the individual who went
through his pockets while Keys held a gun to his head. E.B. expressed no uncertainty in
his identification of Hart during this conversation with the investigating officer.
On May 13, officers executed a search warrant on Loyd’s home. A green Chevrolet
Tahoe, registered to Loyd’s mother, was found parked outside. Inside, officers recovered
shoes and clothing that matche d both E.B.’s description and the photos E.B. had used to
identify the three assailants. Loyd was found wearing E.B.’s stolen silver cross. Loyd was
arrested and later identified Hart as the third person in the photos.
Hart was taken into custody and interviewed. He denied knowledge of the robbery
but admitted to being with Keys and Loyd the day it occurred. He did not give a definitive
answer as to where he was during the time of the robbery and said he could not remember
where he got the stolen cross necklace he was previously photographed wearing. In early

4
September, Hart was charged with aiding and abetting first-degree aggravated robbery and
aiding and abetting second-degree assault.
Approximately two months after Hart was released on bail, E.B. found one of his
assailants on his front porch in the early morning. E.B. took a golf club and confronted the
man, and the man left. E.B. called the police and identified Hart as the man who had been
on his porch and as “the youngest of the persons that robbed him.” E.B. told the police he
was “1,000%” certain of his identification of Hart.
The week before Hart’s trial in November 2016, E.B. met with the prosecution and
again reiterated the role that the “shortest” man in the Facebook ph otos played in the
robbery. However, E.B. was a reluctant witness and testified at trial that his memory was
“really bad” and “comes and goes.” He remembered the robbery and talking to the police
but testified that he could not recall any of his prior statements in which he identified Hart
as one of the assailants based on the photos, nor could he recall the testimony he gave at
Loyd’s trial about the role that Hart played in the robbery. E.B. testified that he did not see
the young man who robbed him in the courtroom.
When pressed further about his prior id entifications of Hart, E.B. offered
contradictory testimony. E.B. explained that he had initially believed Hart was one of the
assailants because the photos showed Hart wearing his neck lace but that he had made a
mistake and now could “recognize none of them.” Yet E.B. later agreed that, based on his
recollection, the “youngest one” in the photos was the assailant who told the gunman not
to shoot him. Although the par ties stipulated that Hart was pictured in the photos, E.B.
insisted that he was unsure whether the person in the photos was actually Hart. Ultimately,

5
E.B. reaffirmed his great reluctance to testif y against Hart, stating, “I don’t want to send
this kid nowhere if I can’t recognize him. I don’t know if that was him, and I’m not going
to sit here and say it was. Bottom line.” On redirect exam ination, however, E.B. agreed
that Hart was the person who had saved his life and stopped the gunman from shooting him
during the robbery.
E.B. also conceded to having concerns about his safety due to being a witness. He
explained that “forcing” him to testify put him in “great danger.” While E.B. insisted that
there had been no threats against him or his family, he repeated several times that, after
this case concluded, “I got to live in that neighborhood” and raise grandchildren.
The jury found Hart guilty, and the district court entered a conviction on both counts.
Hart was sentenced to 48 months in prison based on the first-degree aggravated robbery.1
This appeal follows.
D E C I S I O N
Hart argues the state did not present su fficient evidence to prove beyond a
reasonable doubt that he comm itted first-degree aggravated robbery and second-degree
assault. Specifically, he challenges the sufficiency of the evidence to identify him as one
of the assailants.
In considering a claim of insufficient evid ence, this court’s review “is limited to a
painstaking analysis of the record to determ ine whether the evidence, when viewed in a
light most favorable to the conviction, was sufficient to permit the jurors to reach the

1 Hart was not sentenced on his second-degree assault conviction.

6
verdict which they did.” See State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). We must
assume “the jury believed the state’s witn esses and disbelieved any evidence to the
contrary.” State v. Moore, 438 N.W.2d 101, 10 8 (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 the defendant
was guilty of the ch arged offense. Bernhardt v. State , 684 N.W.2d 465, 476-77 (Minn.
2004).
Hart suggests that the heightened standard of review that applies to circumstantial-
evidence cases is appropriate here because “the state’s case is largely, if not entirely, based
on circumstantial evidence.” See State v. Al-Naseer, 788 N.W.2d 469, 473 (Minn. 2010)
(explaining that a conviction based on circ umstantial evidence warrants heightened
scrutiny). “Circumstantial evidence” is “evidence based on inference and not on personal
knowledge or observation” and “all evidence that is not gi ven by eyewitness testimony.”
Bernhardt, 684 N.W.2d at 477 n.11 (quotation omitted). “Direct evidence,” in contrast, is
“evidence that is based on pers onal knowledge or observation and that, if true, proves a
fact without inference or presumption.” Id. (quotation omitted). Here, the state presented
direct evidence of the contested element—id entity—in the form of E.B.’s testimony and
previous identifications. See State v. Williams , 337 N.W.2d 387, 389 (Minn. 1983)
(explaining that direct evidence includes “testimony of a person who perceived the fact
through his senses, and testifies to it, or physical evidence of the fact itself”). Thus, the
direct-evidence, and not the heightened circumstantial-evidence, analysis is appropriate.

7
Hart argues that the eviden ce was insufficient because E.B.’s identification was
unreliable and not corroborated by other eviden ce linking Hart to the ro bbery. It is well
established that “a conviction may rest on the testimony of a single credible witness” and
that identification testimony is sufficient if a witness testifies that the defendant is the
person he saw commit the crime. State v. Miles , 585 N.W.2d 368, 373 (Minn. 1998).
However, if a “single witness’ identification of a defendant is made after only fleeting or
limited observation, corroboration is required if the conviction is to be sustained.” State v.
Walker, 310 N.W.2d 89, 90 (Minn. 1981). “The trustworthiness of an identification must
necessarily be judged by the opportunity the witness has had for a deliberate and accurate
observation of the accused while in his [or her] presence.” State v. Gluff, 285 Minn. 148,
151, 172 N.W.2d 63, 65 (1969).
Reliability
In State v. Burch, the supreme court set forth the following factors for evaluating
the reliability of eyewitness identification: (1) the witn ess’s opportunity to see the
defendant at the time the crime was committed; (2) the length of time the assailant was in
the witness’s view; (3) the stre ss the witness was under at the time of the crime; (4) the
lapse of time between the crime and the witne ss’s identification; and (5) the effect of the
police procedures as either te sting the witness’s identificati on or simply reinforcing the
witness’s initial identification of the defendant as the one who committed the crime. 284
Minn. 300, 315-16, 170 N.W.2d 543, 553-54 (1969).
Hart contends that E.B.’s identification was unreliable because E.B. identified Hart
as a suspect only after seeing him in photos with the stolen jewe lry and that such a

8
circumstance was “highly suggestive.” Hart rightly did not seek to suppress E.B.’s
identification of him on this basis, since th e Facebook photos were originally shown to
E.B. by his daughter rather than investigating officers or other state actors, and state action
is required to exclude identification ev idence based on due-process concerns. See id. at
314, 170 N.W.2d at 553 (discussing due-proc ess concerns regarding police identification
procedures); see also Goode v. State , 136 A.3d 303, 310-11 (Del . 2016) (explaining that
eyewitness identifications not involving state actors do not raise due-process concerns).
Thus, any suggestiveness of E.B.’s identification went only to the weight of the evidence,
and “[t]he weight and credibility of the testimony of individual witnesses is for the jury to
determine.” See Moore, 438 N.W.2d at 108 (citing State v. Engholm , 290 N.W.2d 780,
784 (Minn. 1980)).
Hart also argues that E.B. had a limited opportunity to observe his assailants and
was under stress during the robbery. It is true , as Hart points out, that E.B. was unable to
see the robbers’ faces since they were all we aring masks. And, be cause a gun was being
held to his head for the major ity of the incident and he fear ed for his life, E.B. was likely
also under considerable stress during the robb ery. Nevertheless, E.B. had a significant
period of time to observe his assailants. E.B. was able to provide the police with a detailed
description of the gunman, recounting that he had dreadlocks and was wearing white jeans.
He was able to provide a general descripti on of the other two assailants as black men
wearing jeans and hoodies. E.B. was also able to recall Keys’s “exact shoes” shortly after
the robbery. Moreover, E.B. was able to distinguish between his assailants in the Facebook
photos and describe their differing roles during the robbery.

9
Despite these details, Hart maintains that “while [E.B.’s] identification of Keys and
Loyd as his assailants was based on hair, clot hing, and a ski mask that matched those of
the males that robbed him, [E.B.’s] identification of Hart was baseless.” We disagree. E.B.
identified Hart as the “youngest” and “short est” assailant and remembered him wearing
jeans and a hoodie.
It is true that at trial E.B. claimed, e ssentially, that he me rely assumed Hart was
involved in the robber y based on the incriminating photos . But it was for the jury to
determine the weight and credibility of Hart’s trial testimony. See id. The jury had cause
to question E.B.’s retreat from his previous identifications, given his reluctance to appear
in court and sudden memory loss. At trial, E.B. admitted that he felt he was in “great
danger” due to testifying and repeatedly remi nded the prosecutor that he would have to
return to the neighbor hood where the robbery occurred after Hart’s trial concluded.
Furthermore, E.B.’s testimony was inconsistent: at one point he specifically identified Hart
as the “youngest” assailant who “saved” him from the gunman. The jury had the
opportunity to assess E.B.’s credibility and determine the proper weight to be given to his
positive pretrial identifications of Hart as contrasted with his in-court reluctance to do so.
See State v. Johnson, 679 N.W.2d 378, 387 (Minn. App. 2004) (concluding that on review
for sufficiency of the evidence “inconsistencies and related credibility determinations were
for the jury to assess”), review denied (Minn. Aug. 17, 2004). We will not second-guess
the jury’s reasonable determination.

10
Corroboration
Hart contends that there was no independent corroboration of E.B.’s identification.
Assuming corroboration is required in this case , we conclude that th e record reflects a
number of times when E.B.’s repeatedly co nsistent pretrial identifications were
corroborated by other evidence. Hart admitted that he wa s with the other two robbers
during the same day E.B. was robbed, and he could not account for his whereabouts during
the time of the robbery. Facebook photos poste d just days after the robbery show Hart
posing (1) with the other two convicted assaila nts and wearing E.B.’s distinctive stolen
jewelry and clothing that matched E.B.’s description, and (2) next to a ski-masked man in
a car who was wearing clothing matching E.B.’s description. The Facebook photos also
corroborate E.B.’s identification by placing Hart with the ot her two convicted assailants
shortly after the robbery and with the stolen items.
Moreover, when officers se arched Loyd’s residence, they found a green Tahoe
matching E.B.’s description, as well as clothe s corresponding with E.B.’s description of
what his assailants were wearing. These ite ms matched the clothing the three suspects
were wearing throughout the photos. Loyd was also wearing E.B.’s necklace when he was
arrested. It is true, as Hart points out, that unlike Loyd, no clothing associated with the
robbery or stolen jewelry wa s found in Hart’s actual po ssession. However, Hart was
pictured with the stolen necklace yet could not “remember” where he got it.
Taken together, Hart’s admissions, the Facebook photos, and the physical evidence
recovered at Loyd’s home was incriminating, and it was reasonable for the jury to infer

11
that Hart, Loyd, and Keys ac ted together when they assa ulted and robbed E.B. We
conclude that the identification evidence was sufficient to support Hart’s convictions.
Affirmed.