State of Minnesota, Respondent,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A22-1062

State of Minnesota,
Respondent,

vs.

James Irving Dale,
Appellant.

Filed May 22, 2023
Affirmed in part and remanded
Florey, Judge*

Hennepin County District Court
File No. 27-CR-21-19186

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Mary F. Moriarty, Hennepin County Attorney, Nicole Cornale, Assistant County Attorney,
Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Davi E. Axelson, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Cochran, Presiding Judge; Frisch, Judge; and Florey,
Judge.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
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NONPRECEDENTIAL OPINION
FLOREY, Judge
In this direct appeal from judgments of conviction for unlawful firearm possession
and property damage, appellant argues that (1) the district court erred in denying his motion
to suppress identification evidence because law enforcement used a show-up identification
procedure that was unnecessarily suggestive and presented a substantial likelihood of
misidentification, and (2) the warrant of commitment erroneously indicated a 60-month
sentence for property damage although the district court did not orally pronounce a
sentence for that offense. We affirm in part and remand.
FACTS
In October 2021, respondent State of Minnesota charged appellant James Irving
Dale with felony possession of a firearm by an ineligible person under Minn. Stat.
§ 624.713, subd. 1(2) (2020), and misdemeanor fourth-degree damage to property under
Minn. Stat. § 609.595, subd. 3 (2020). The state dismissed a third charge at trial and
amended the damage-to-property charge to first-degree damage to property. Before trial,
Dale filed a motion to suppress and preclude identification evidence obtained in violation
of his constitutional right to due process. In his supporting memorandum, Dale argued that
the show-up identification procedure that law enforcement used to identify him as the
perpetrator of the offenses, as well as to identify the case containing the firearm that he
allegedly possessed, was unnecessarily suggestive and created a substantial likelihood of
irreparable misidentification.
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The district court held an omnibus hearing in March 2022 to address Dale’s motion.
The parties stipulated to the exhibits the state submitted, including a surveillance video,
audio of four 911 calls made by a witness, police reports, and two officers’ body-camera
footage. The district court found that the show-up procedure was unnecessarily suggestive,
but it also found that there was not a substantial likelihood of irreparable misidentification
and therefore denied Dale’s motion to suppress. The district court then held a jury trial in
April 2022. The following facts summarize the evidence presented at trial.
A.J. is the owner of a coffee shop in Minneapolis. At approximately 4:30 a.m. on
October 11, 2021, A.J. received a call from the alarm company that services his coffee
shop. He viewed surveillance footage on his phone depicting a masked person in the
basement office of the coffee shop, so he instructed the alarm company to call the police.
Officers responded to the coffee shop and observed that a back window had been
broken. A.J. arrived and showed the officers the surveillance video of the man who had
broken into the shop. A.J. testified that nothing appeared to be missing in the basement
office, although it appeared the man had rummaged through things.
Later that day, another person who lived near the coffee shop reported to police that
someone had broken into his home. T wo of his firearms, including an AR-15 rifle, were
stolen. The AR-15 was stored in a black, rectangular, soft-sided case.
The following day, October 12, A.J. was working at the coffee shop when he saw
the same person from the break-in surveillance footage walk into the shop. A.J. testified
that the man was wearing the same clothing as the man in the footage, including a blue
sweatshirt with orange writing and camouflage shorts. A.J. called 911 at 7:57 a.m. and
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again at 8:02 a.m. to report that the man who had broken into the shop had returned. In the
first call, A.J. described the man as a white man with a beard wearing a Minneapolis
sweatshirt, camouflage shorts, and a camouflage hat. In the second call, A.J. informed the
911 dispatcher that he was pursuing the man. A.J. grabbed the man’s hat during this
encounter.
A.J. testified that he followed the man northbound through a nearby alley, but he
stopped following when the man jumped over a fence and pulled something out of his
pocket that “felt threatening.” A.J. returned to the coffee shop, but he soon saw the man
again, this time walking northbound on Xerxes Avenue. The man was carrying two bags :
a camouflage backpack and a “large . . . black backpack case -looking thing” that was
rectangular in shape. A.J. called 911 for the third time at 8:10 a.m. to report the sighting.
He also informed the dispatcher that the man had “pulled a knife” on him while he was
chasing the man.
One of the responding officers testified that they saw a white man in a blue
sweatshirt and camouflage pants on Xerxes Avenue at approximately 8:30 a.m. The
officers lost sight of the man, so they continued to search for him in their squad car and on
foot. During this search, one officer found two black backpacks along the side of a house
near 48th and Xerxes. The officers eventually found the man in a nearby backyard and
took him into custody. The man matched A.J.’s description.
While returning to the coffee shop, the officers noticed a rifle case sitting in a yard
less than a block from where they located the man. The case contained an AR-15 rifle.
The officers recovered the rifle and returned to the coffee shop.
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A.J. called 911 a fourth time at 8:37 a.m. to check on the status of his report. The
dispatcher informed A.J. that law enforcement had the suspect in custody. When the
officers returned to the coffee shop, they conducted a show-up identification with A.J., who
identified the man as the person who had broken into the coffee shop. A.J. also identified
the black, rectangular rifle case that he saw the man carrying. The man was later identified
as Dale. Both the responding officer and A.J. identified Dale in court.
The jury found Dale guilty of felony possession of a firearm and first-degree damage
to property. Dale requested to be sentenced at the conclusion of trial. The district court
sentenced Dale to 60 months in prison.
Dale appeals.
DECISION
I. The district court did not err by denying Dale’s motion to suppress the show-
up identification evidence.

Dale first argues that the district court committed reversible error by allowing the
state to introduce evidence that identified Dale as the perpetrator because the show -up
identification procedure was unnecessarily suggestive and created a substantial likelihood
of misidentification. We disagree that the procedure created a substantial likelihood of
misidentification requiring reversal of the district court’s decision to admit the evidence.
We generally review a district court’s evidentiary decisions for an abuse of
discretion. State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003). However, we review de
novo whether the admission of pretrial identification evidence violated a defendant’s due-
process rights. State v. Hooks, 752 N.W.2d 79, 83 (Minn. App. 2008). “The admission of
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pretrial identification evidence violates due process if the procedure was so impermissibly
suggestive as to give rise to a very substantial likelihood of irreparable misidentification.”
Id. at 83-84 (citing Simmons v. United States, 390 U.S. 377, 384 (1968)). “[T]he reviewing
court may independently review the facts and determine, as a matter of law, whether the
evidence need be suppressed.” State v. Taylor, 594 N.W.2d 158, 161 (Minn. 1999)
(quotation omitted).
Our courts apply a two-prong test to determine whether pretrial identification
evidence violates due process and must be suppressed. State v. Ostrem, 535 N.W.2d 916,
921 (Minn. 1995) (citing Simmons, 390 U.S. at 381). Under the first prong, we determine
whether the identification procedure was unnecessarily suggestive. Id. Even if the
procedure was unnecessarily suggestive, the evidence may be admissible under the second
prong if “the totality of the circumstances establishes that the evidence was reliable.” Id.
In other words, the second prong involves a determination of “whether the suggestive
procedures created a very substantial likelihood of irreparable misidentification.” Id.
To evaluate the totality of the circumstances under the second prong of this test, we
consider the following five factors:
1. The opportunity of the witness to view the criminal at the
time of the crime;
2. The witness’[s] degree of attention;
3. The accuracy of the witness’[s] prior description of the
criminal;
4. The level of certainty demonstrated by the witness at the
[identification procedure];
5. The time between the crime and the confrontation.

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Id. If the totality of the circumstances demonstrates “an adequate independent origin” for
the witness’s identification of the defendant, then the identification evidence need not be
suppressed despite the suggestive nature of the procedure. Taylor, 594 N.W.2d at 161.
Here, the district court found that the show-up identification procedure was
unnecessarily suggestive. The state implicitly concedes this point in its brief,
acknowledging caselaw that states “a one-person show-up is by its very nature suggestive.”
Id. at 162. We therefore focus our analysis on the second prong of the test. See State v.
Jones, 556 N.W.2d 903, 912 (Minn. 1996) ( stating that analysis of the first prong of the
Ostrem test is unnecessary when the state admits that the identification procedure was
suggestive).
And our analysis of the five Ostrem factors leads us to conclude that the factors
weigh in favor of the admission of the identification evidence.
1. A.J.’s Opportunity to View Dale

The district court noted that A.J.’s opportunity to view the criminal at the time of
the crime was “substantial” because A.J. was able to review the surveillance video of the
person who broke into his shop on October 11 and because A.J. had up-close contact with
Dale while he chased Dale on October 12. On appeal, Dale argues that the state did not
present evidence at the omnibus hearing about A.J.’s ability to view Dale and claims that
A.J. “only had a brief opportunity to observe the suspect in his coffee shop, while he was
likely distracted by customers and calling 911.”
The record contradicts Dale’s argument. A.J. had ample opportunity to view Dale
because he reviewed the surveillance footage of the break- in on October 11 and then
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witnessed Dale three separate times on October 12. He first witnessed Dale enter his coffee
shop wearing the same clothing as the man in the October 11 surveillance footage. He next
witnessed Dale a few minutes later when he gave chase, and he came close enough to grab
Dale’s hat. A.J. was also close enough for Dale’s voice to be heard in the background of
the 911 call. He witnessed Dale for a third time less than ten minutes later and provided
further descriptions of Dale’s location, the direction Dale was traveling, and the bags Dale
was carrying. Thus, we conclude that this factor weighs in favor of reliability and
admissibility.
2. A.J.’s Degree of Attention

The degree-of-attention factor weighs in favor of admissibility when the witness is
“coherent, aware, and attentive” while making their observation of the defendant. State v.
Adkins, 706 N.W.2d 59, 63 (Minn. App. 2005). Dale argues that this factor does not weigh
in favor of admissibility because the state presented no evidence at the omnibus hearing
about A.J.’s degree of attention. He further argues that A.J. did not describe Dale carrying
a large, black, rectangular case prior to a police officer asking about the case. Again, we
disagree.
The record evidence indicates that A.J. was highly attentive in his observations of
Dale. The audio of the 911 calls shows that A.J. repeatedly described Dale’s appearance
and noted when Dale reappeared carrying bags he had not previously been carrying. A.J.
also relayed the street names on which he observed Dale and the direction Dale was
walking. We conclude that this factor weighs in favor of admissibility because A.J.
appeared coherent, aware, and attentive when relaying his observations.
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3. The Accuracy of A.J.’s Description

Dale argues that A.J.’s description was not accurate because the description relied
on the clothing Dale was wearing and did not include a description of Dale’s skin tone,
height, weight, or other descriptive features. However, Dale’s argument is inaccurate
because A.J. included a description of Dale’s skin tone and facial hair in his first 911 call.
Furthermore, Dale fails to address that A.J. gave an accurate description of Dale’s clothing
and the bags he carried. See State v. Lushenko, 714 N.W.2d 729, 733 (Minn. App. 2006)
(noting appellant’s failure to address the fact that the witness’s general description matched
appellant), rev. denied (Minn. Dec. 12, 2006). We conclude that this factor also weighs in
favor of admissibility.
4. A.J.’s Level of Certainty During the Show-up Identification

Dale argues that the 911 dispatcher and the police officer who conducted the
show-up identification primed A.J. to believe that Dale was the perpetrator because they
both informed A.J. that law enforcement had apprehended the suspect. Dale also argues
that A.J.’s certainty in identifying the black rifle case was inflated because he did not have
an opportunity to view the two other backpacks that police recovered and compare them to
the rifle case . Finally, Dale argues that “ [t]he lack of opportunity to compare the bags,
coupled with the scary news about the recovered rifle, likely made [A.J.] feel more certain
in his identification than he was.”
However, Dale ignores A.J.’s statement to the police officer that he was “100%”
certain Dale was the perpetrator. This statement was captured by the officer’s body camera
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and submitted into evidence during the omnibus hearing. This statement suggests that A.J.
was indeed certain of his identification and weighs in favor of admissibility.
5. The Amount of Time Between the Crime and the Show-up

The amount-of-time factor weighs in favor of admissibility when the identification
procedure occurs close in time to the witness’s observation of the suspect. See Lushenko,
714 N.W.2d at 733 (concluding this factor favored admissibility when the identification
occurred three hours after the witness’s interaction with the suspect). Here, A.J. identified
Dale less than one hour after he first called 911 to report that he had observed Dale enter
his coffee shop. This factor weighs in favor of reliability and admissibility.
In sum, we conclude that all five Ostrem factors support the admission of the
challenged identification evidence. A.J.’s identification of Dale was independently
reliable, and the district court did not err by denying Dale’s motion to suppress this
evidence.
In his pro se supplemental reply brief, Dale argues that the show- up identification
procedure was impermissibly suggestive and created a substantial likelihood of
misidentification with regard to the black rifle case that A.J. also identified. He argues that
although A.J. had multiple opportunities to view Dale without the bags, A.J. only had a
brief opportunity to view Dale’s bags because Dale was carrying the bags “across a busy
intersection during rush hour traffic.” Dale’s arguments here are similar to the arguments
made in his principal brief. For the same reasons we outlined in our analysis of the five
Ostrem factors, we conclude that A.J.’s identification of the black rifle case was reliable
and admissible. Therefore, we affirm the district court’s admission of the evidence.
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II. Remand is necessary to correct the warrant of commitment.

Dale next argues that we must remand his case to the district court to correct his
warrant of commitment. At sentencing, the state asked for a 60-month sentence for the
possession-of-a-firearm conviction and a concurrent guidelines sentence for the damage-
to-property conviction. 1 The defense requested a downward durational sentencing
departure of 36 months for the possession-of-a-firearm conviction.
The district court imposed a 60 -month sentence for unlawful possession of a
firearm, but it did not orally pronounce a sentence for the damage-to- property conviction.
However, the district court later issued a warrant of commitment that listed a 60-month
concurrent sentence for damage to property in addition to the 60-month sentence for
possession of a firearm. The state agrees that remand is appropriate to correct the warrant
of commitment but argues that the district court’s oral sentencing order was unambiguous
and reflected the district court’s intention to impose the state’s requested sentence for both
convictions.
The district court must “[s]tate precisely the terms of the sentence” on the record
when sentencing a defendant for a conviction. Minn. R. Crim. P. 27.03, subd. 4(A). For
felony convictions, the court must also record the sentence in an order. Minn. R. Crim. P.
27.03, subd. 7. The district court may correct a sentence not authorized by law, as well as
clerical mistakes, at any time. Minn. R. Crim. P. 27.03, subds. 9, 10. An unambiguous

1 The state clarifies that the presumptive guidelines sentence for the damage-to-property
conviction, given the severity level of the offense and Dale’s criminal-history score, would
be 24 months in prison.
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oral sentencing order controls over the written order of commitment when the two conflict.
State v. Staloch, 643 N.W.2d 329, 331 (Minn. App. 2002).
Based on the transcript, it appears the oral sentencing order is indeed unambiguous.
The district court heard both parties’ arguments regarding the duration of the sentence for
firearm possession and then stated, “I’m going to sentence you to the 60 months that is
being asked by the prosecution here.” Although the state had also requested a concurrent
sentence on the damage-to-property conviction, the district court did not acknowledge this
request or state on the record that it was imposing any sentence for that offense.
Because the record is clear that the district court did not pronounce a sentence for
the damage-to-property conviction, the warrant of commitment erroneously reflects a
sentence that was never imposed. Thus, remand is appropriate to correct the warrant of
commitment.
Affirmed in part and remanded.