This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. 480A.08, subd. 3 (1998).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C9-99-1595

 

State of Minnesota,

Respondent,

 

vs.

 

Antonio (NMN) Jackson,

Appellant.

 

 

Filed July 25, 2000

Affirmed

Randall, Judge

 

Anoka County District Court

File No. K4-99-1189

 

 

Mike Hatch, Attorney General, 525 Park Avenue, Suite 500, St. Paul, MN 55103; and

 

Robert M.A. Johnson, Anoka County Attorney, Marcy S. Crain, Assistant County Attorney, Anoka County Government Center, 2100 Third Avenue, Anoka, MN 55303 (for respondent)

 

John M. Stuart, State Public Defender, Theodora Gaitas, Assistant State Public Defender, 2829 University Avenue Southeast, Minneapolis, MN 55414 (for appellant)

 

 

Considered and decided by Randall, Presiding Judge, Lansing, Judge, and Willis, Judge.


U N P U B L I S H E D O P I N I O N

RANDALL, Judge

Appellant challenges his conviction of first-degree aggravated robbery, arguing that the evidence was insufficient to support the conviction. Appellant also argues that the district court erred in precluding admission of his reverse-Spreigl evidence. Appellant offered evidence that another person whom two eyewitnesses picked out of a lineup as having committed the crime he was charged with, had committed a burglary of a residence and aggravated robbery in the residence within six weeks of the charged offense appellant was charged with. We affirm.

FACTS

On October 18, 1998, Nicole Jean Miles was working alone at the Tom Thumb store in Coon Rapids. Shortly before 12:50 p.m., a man entered the store. There was one other customer in the store. The man walked around, bought a half-pound loaf of Tom Thumb bread, and asked where the laundry detergent was located. Miles directed the man to the laundry detergent. The man returned to the counter with a bottle of detergent and asked Miles what it cost. He then inquired about fabric softener and brought a box to the counter. In the meantime, the other customer left the store.

As Miles rang up the man's purchases, he grabbed her by the neck of her shirt with one hand and held a knife to her with the other, demanding money and saying, "Open the door or else I'll hurt you." Miles attempted to open the register, but was unable to do so immediately. The man stated that he would stab her if she did not open the register, and he began poking Miles on her right side with the knife, causing superficial cuts to Miles's ribs. After taking at least $200 from the register, the man walked out of the store. As he did so, Joelle Rocheleau, an 11-year-old who had observed the incident, walked into the store.

Miles called 911 and within two minutes, Officer John Urquhart arrived at the store. Miles and Rocheleau described the robber as a black male in his 20s or 30s, about six feet tall, with a thin or medium build. The robber wore dark, oval sunglasses, and Miles recalled that he wore a blue sweatshirt with gold letters.

Police found a latent fingerprint on the wrapper of the loaf of bread purchased by the robber. The fingerprint did not match the known fingerprints of any store employees. Based on the information contained in its fingerprint database, the Bureau of Criminal Apprehension (BCA) determined that the latent fingerprint belonged to appellant Antonio Jackson. According to Miles, bread was delivered to the store every day except Wednesday and Sunday. The bread was not stocked by store employees, but rather by the bread-delivery person.

Shortly after receiving the BCA fingerprint results, Detective Joseph Hunt interviewed Jackson. During the interview, Jackson stated that (1) 1995 was the last time he was in Coon Rapids, but he could have been in Coon Rapids in 1998 visiting his girlfriend, "Anita"; (2) he could not say for sure that he was not at the Coon Rapids Tom Thumb on the day of the robbery or that he had never been there; and (3) he might have met his brother in a Tom Thumb parking lot, but he was not sure if it was the one that was robbed. When asked again if he had been in the area of the Coon Rapids Tom Thumb store, Jackson stated "[M]aybe * * * I can't say yes. I can't say no."

Later, Jackson was ordered to participate in a police lineup. During the lineup Jackson wore number two. Miles and Rocheleau viewed the lineup separately. Rocheleau immediately picked number three from the lineup. During trial, however, she made an in-court identification of Jackson as the robber. Miles, on the other hand, was unable to pick anyone from the lineup and began crying. When pressed by Hunt, Miles stated, "I think No. 3, but I am not sure." According to Miles, she felt pressured by Hunt and blurted out number 3 to satisfy him.

Number three in the lineup was David Lee Jenkins. During trial, Jackson sought to introduce evidence that Jenkins was the Tom Thumb robber. Jackson pointed out that Jenkins pleaded guilty to first-degree burglary for an offense that occurred in Anoka County on December 1, 1998. Jenkins, along with two accomplices, entered a private residence at approximately 3:00 a.m. to steal a large amount of cash. Jenkins struck a victim in the head with a baseball bat, causing serious injuries. The district court stated that it was disinclined to allow the evidence, as reverse-Spreigl, because it
was remote in place and dissimilar in modus operandi. The court never formally ruled on Jackson's motion, and the evidence was never introduced at trial.

Jackson's former girlfriend, Shelly Wicken, with whom Jackson was living at the time of the robbery, testified that Jackson never had a job working for Tom Thumb, bagging bread or stocking shelves. She also stated that Jackson had a navy blue sweatshirt that possibly had white and gold writing on it. In addition, she testified that Jackson had many pairs of sunglasses with black frames and oval lenses.

The police executed a search warrant at the home of Amanda Oslowski, the women with whom Jackson began living after his breakup with Wicken in December 1998. Police recovered a navy blue jacket with white and gold lettering on it and two pairs of sunglasses. Oslowski claimed the jacket was hers and that she shared the sunglasses with Jackson.

After deliberation, the jury found Jackson guilty of first-degree aggravated robbery. The district court denied Jackson's new-trial motion in which he argued the court should have allowed him to introduce the evidence that Jenkins pleaded guilty to a first-degree burglary and may have committed the Tom Thumb robbery. The court imposed an upward durational departure and sentenced Jackson to 168 months in prison. This appeal follows.


D E C I S I O N

Jackson argues the state's evidence is insufficient to prove beyond a reasonable doubt that he robbed the Coon Rapids Tom Thumb store because the state failed to prove that he left his fingerprint on the loaf of bread during the robbery. Jackson insists that the fingerprint alone was insufficient to establish that he was at the store during the robbery.

When reviewing a claim of insufficient evidence, this court is limited to an analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, is sufficient to sustain the verdict. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). This court reviews the evidence and legitimate inferences that can be drawn from it to determine whether a jury could reasonably conclude the defendant was guilty of the offense charged. State v. Merrill, 274 N.W.2d 99, 111 (Minn. 1978). This court may not retry the facts, but must "assume that the jury believed the state's witnesses and disbelieved any contradictory evidence." State v. Sheldon, 391 N.W.2d 537, 539 (Minn. App. 1986) (quotation omitted).

When a conviction is based on circumstantial evidence, such evidence is entitled to as much weight as other evidence if "the circumstances proved are consistent with the hypothesis that the accused is guilty and inconsistent with any rational hypothesis except for that of guilt." State v. Steinbuch, 514 N.W.2d 793, 799 (Minn. 1994) (quotation omitted). The evidence need not exclude the possibility of defendant's innocence, rather it need only make that theory seem unreasonable. State v. Anderson, 379 N.W.2d 70, 78 (Minn. 1985). Although stricter scrutiny applies to convictions based on circumstantial evidence, the jury is in the best position to evaluate the circumstantial evidence surrounding the crime. State v. Race, 383 N.W.2d 656, 662 (Minn. 1986).

In State v. Turnipseed, 297 N.W.2d 308 (Minn. 1980), the supreme court upheld the defendant's conviction for burglary that was based primarily on fingerprint evidence. In that case, a nursing home was burglarized, and police found latent fingerprints on the window used by the burglar to enter the nursing home. Id. at 309-10. The fingerprints were entered into a computerized database for comparison and were matched to defendant. Id. at 310. The nursing-home maintenance worker testified that he had washed the window three days before the burglary, removing any fingerprints from the window. Id. Defendant told police he had never been employed by the nursing home, did not know anyone who worked or lived at the home, and did not recall having been to the home. Id. The supreme court rejected defendant's claim that the fingerprint evidence was insufficient to support his conviction, holding

[a]lthough defendant speculates about other possible ways in which his fingerprints could have been left on the glass, there is no evidence in the record to support his speculations, and certainly no evidence which the jury was bound to accept that was consistent with any reasonable hypothesis of defendant's innocence or inconsistent with his guilt.

 

Id. at 314 (citation omitted).

 

Although Jackson speculates about how his fingerprint might have gotten on the bread wrapper, as in Turnipseed, there is no evidence in the record to support his various theories. Wicken stated that Jackson never worked at the Tom Thumb store and was never employed delivering bread. In his statements to police, Jackson stated that he could not say for certain whether he had been to the Coon Rapids Tom Thumb store on the day in question or whether he had ever been there. Based on this evidence, the jury could reasonably infer that Jackson left his fingerprint on the bread wrapper during the robbery and at no other time. The state's evidence, while allowing the possibility that Jackson placed his fingerprint on the bread wrapper at some other time and location, makes Jackson's theory speculative. See Anderson, 379 N.W.2d at 78 (holding state's evidence need not exclude possibility of defendant's innocence; it need only make theory seem unreasonable).

The state had other evidence linking Jackson to the crime. The police recovered a navy blue sweatshirt with gold and white lettering and two pairs of black sunglasses with oval lenses from Oslowski's apartment. These items matched the description of the clothing worn by the robber. This evidence, along with the fingerprint, could allow the jury to reasonably conclude that Jackson robbed the Coon Rapids Tom Thumb store. See State v. Hardy, 354 N.W.2d 21, 24 (Minn. 1984) (upholding convictions for aggravated robbery, burglary of occupied dwelling, and second-degree assault where fingerprint evidence was supported by evidence perpetrator was same ethnicity as defendant, defendant's girlfriend lived in area, and defendant was arrested after high-speed chase). Viewing the evidence in the light most favorable to the conviction, we conclude that Jackson's conviction is supported by the evidence.

Next, Jackson argues the district court abused its discretion when it refused to allow reverse-Spreigl evidence that Jenkins committed the robbery. Jackson sought to introduce evidence that Jenkins pleaded guilty to first-degree burglary for an incident that took place six weeks after the Tom Thumb robbery. The district court stated that it believed this evidence was inadmissible because the crimes were not close in location or modus operandi. The court did allow Jackson to introduce evidence that the eyewitnesses selected Jenkins, not Jackson, from the lineup on the Tom Thumb robbery.

A defendant may seek to introduce evidence of a third person's other crimes or misconduct to prove the third person, and not the defendant, committed the crime charged." State v. Johnson, 568 N.W.2d 426, 433 (Minn. 1997) (emphasis omitted). Before this evidence, known as reverse-Spreigl, will be admitted, the defendant must demonstrate

(1) clear and convincing evidence that the third party participated in the reverse-Spreigl incident; (2) that the reverse-Spreigl incident is relevant and material to the defendant's case; [and] (3) that the probative value of the reverse-Spreigl evidence outweighs its potential for unfair prejudice.

 


State v. Williams, 593 N.W.2d 227, 233 (Minn. 1999) (citations omitted), cert. denied, 120 S. Ct. 180 (1999). Some direct evidence placing the third party at the scene of the crime is also required. State v. Flores, 595 N.W.2d 860, 868 (Minn. 1999); (See also Williams, 593 N.W.2d at 234 (noting in cases in which use of reverse-Spreigl evidence has been upheld or required, "there always has been some direct evidence placing the third party at the scene of the charged crime").

When reverse-Spreigl evidence is used to establish the identity of the perpetrator, the relevancy requirement demands that the reverse-Spreigl evidence "must be similar to the charged offense either in time, location, or modus operandi." State v. Profit, 591 N.W.2d 451, 464 (Minn. 1999) (quotation and citation omitted), cert. denied, 120 S. Ct. 153 (1999). But Spreigl evidence and the charged offense need not be absolutely similar. Johnson, 568 N.W.2d at 434 (nothing Spreigl cases instructive in evaluating relevancy of reverse-Spreigl evidence). In reviewing the district court's decision to admit or exclude reverse-Spreigl evidence, a reviewing court looks to the evidence presented to the district court and determines whether, in light of the record, the district court clearly abused its discretion. Profit, 591 N.W.2d at 464.

The guilty plea by Jenkins is clear and convincing evidence that Jenkins was involved in the reverse-Spreigl incident. The remaining questions are whether (a) the Jenkins incident was relevant and material to Jackson's case; (b) the evidence about
Jenkins's cases was more probative than unfairly prejudicial; and (c) there is some direct evidence placing Jenkins at the scene of this crime.

We are unpersuaded by the state's argument that the Jenkins incident bore little resemblance to the Tom Thumb robbery. We note that if the situation were reversed and Jackson was charged with aggravated robbery, and within six weeks of the charged incident, pleaded guilty to burglary and aggravated robbery in which property was taken from another victim, with force, under circumstances identical to the Jenkins incident, the state would have offered such evidence and the district court would likely have allowed it into evidence. We are completely unconvinced by the state's contention that the two crimes "were remote in location and time." The Jenkins incident and the Tom Thumb robbery occurred in the same county and within six weeks of each other. Compared to Spreigl evidence we have seen the prosecution offer of one, five, ten, and fifteen-year-old incidents, in other cases, these two crimes were not remote in location or time. The Jenkins incident was relevant and material to Jackson's case and was more probative than prejudicial. Judging by the standards courts apply to Spreigl evidence offered by the prosecution, the district court should have allowed Jackson to introduce the Jenkins incident into evidence. Having said that, we conclude that the district court did not commit reversible error when it refused to allow Jackson to introduce reverse-Spreigl evidence to support the theory that Jenkins may have committed the Tom Thumb robbery. Jackson was allowed full leeway to introduce evidence that Miles and Rocheleau selected Jenkins from the lineup and not him. Thus, Jackson was able to introduce evidence that Jenkins may have committed the Tom Thumb robbery.

Affirmed.