2009-M-127             State of Minnesota, Respondent, vs. Charles Yang, Appellant, and Charles Yang, petitioner, Appellant, vs. State of Minnesota, Respondent.

Appellant was convicted of two counts of aiding and abetting first-degree premeditated murder and two counts of aiding and abetting first-degree premeditated murder for the benefit of a gang for the shooting and resulting deaths of Bunsean Lieng and Tashi Jagottsang.  He was also convicted of four counts of aiding and abetting attempted first-degree premeditated murder and four counts of aiding and abetting attempted first-degree premeditated murder for the benefit of a gang for the shooting and resulting injuries sustained by Tenzin Tsondu, Tenzin Tenpa, Tenzin Choegyal, and Tenzin Phelgye Woser. 

Appellant obtained a stay of his direct appeal and filed a petition for post-conviction relief alleging ineffective assistance of trial counsel.  The post-conviction court summarily denied appellant’s petition, and his motion for reconsideration and leave to amend his petition.

 In this direct appeal, appellant argues that (1) there was no reasonable articulable suspicion to stop the vehicle in which he was a passenger; (2) the for-the-benefit-of-a-gang statute, is unconstitutional; (3) the district court improperly restricted cross-examination of informants and codefendants; (4) the district court erred in denying his motion to suppress gang-related evidence and testimony; (5) the jury instructions were improper and constituted structural error; (6) prosecutorial error during closing argument denied him a fair trial and the cumulative effect of the district court’s errors requires a new trial; (7) there was insufficient evidence to support his convictions; (8) his multiple consecutive sentences unfairly exaggerated the criminality of his convictions; and (9) the post-conviction court erred when it denied his petition without a hearing.  We affirm.

First, the investigatory stop of the vehicle in which appellant was a passenger was supported by a reasonable articulable suspicion of criminal activity, and therefore the district court did not err in denying appellant’s motion to suppress.

Second, the district court did not improperly restrict cross-examination of certain State witnesses in violation of the Confrontation Clause.

Third, expert testimony in the form of an opinion that a group is a criminal gang, or that a defendant committed the charged offense, is an ultimate conclusion reserved for the jury, and therefore is improper.  But it is not improper for an expert to testify as to particular activities of a group, whether the group has a common name, sign, or symbol, and whether the group members individually or collectively have engaged in criminal activity.  The district court did not abuse its discretion in admitting expert gang testimony in this case.

Fourth, the district court cured any potential for confusion by the jury and prejudice to the appellant by instructing the jury to disregard the errors in the old instructions, explaining to the jury the amendments to the jury instructions, and providing the jury with a copy of the corrected instructions for its deliberations.

Fifth, the evidence was sufficient to support appellant’s conviction of premeditation and aiding and abetting.

Sixth, the district court did not err in denying appellant’s petition for post-conviction relief and related motion for reconsideration and motion to amend.

               Dietzen  (Magnuson, Page, Paul Anderson, Meyer, Barry Anderson, and Gildea)

[MURDER]