This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).
IN COURT OF APPEALS
Scott Brian LaCroix,
Hennepin County District Court
File No. 98057764
Mike Hatch, Attorney General, Suite 500, 525 Park Street, St. Paul, MN 55103; and
Amy Klobuchar, Hennepin County Attorney, Michael Richardson, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)
John M. Stuart, State Public Defender, Susan J. Andrews, Assistant Public Defender, Suite 600, 2829 University Avenue S.E., Minneapolis, MN 55414 (for appellant)
Considered and decided by Anderson, Presiding Judge, Amundson, Judge, and Huspeni, Judge.
On appeal from his conviction of offering a forged check, appellant contends that the evidence is insufficient for the jury to reasonably conclude that he knew the check was forged. Appellant also argues the trial court abused its discretion in sentencing him under the career-offender statute to the statutory maximum sentence of 120 months in prison. Because there is sufficient evidence to support the jury’s verdict and because the sentence was within the discretion of the trial court, we affirm.
On April 22, 1998, David Stein was in Minneapolis on business when his rental car was broken into and several items were stolen, including a check made out to AMEX (American Express) in the amount of $6,037.94. On April 27, 1998, appellant went to First Star Bank in Bloomington, Minnesota, to cash a check. This check was David Stein’s stolen check, although the name of the payee now read “Lacroix, Scott” (appellant) rather than “AMEX.” Appellant used the check to open two accounts with First Star, and in order to open these accounts, he provided identification and signed signature cards, all of which identified him by his correct name. He subsequently withdrew money from the accounts.
After First Star learned the check had been forged, the police began to investigate. When interviewed by the police, appellant claimed he met a man who identified himself as David Stein in a bar in Minneapolis, that he agreed to do some painting and landscape work at the man’s cabin in Wisconsin, and that this man had paid him with this check after he completed the work. Appellant stated to the police that he thought the check given to him looked “funny.” Appellant was subsequently charged with and convicted of offering a forged check in violation of Minn. Stat. § 609.631, subd. 3 (1998). David Stein testified at trial that he does not own a cabin in Wisconsin and never hired appellant to do any repair work for him. Although the presumptive guidelines sentence was 26 months in prison, the trial court sentenced appellant to 120 months in prison under the career-offender statute.
1. Insufficiency of the evidence
Appellant challenges his conviction of offering a forged check, arguing that the evidence is insufficient for the jury to reasonably conclude that he knew the check had been forged. In reviewing a claim of insufficiency of the evidence, this court examines the evidence in the record, along with legitimate inferences from that evidence, to determine whether the jury could reasonably have concluded that the state met its burden to prove beyond a reasonable doubt that the defendant was guilty of the offense charged. State v. Doppler, 590 N.W.2d 627, 635 (Minn. 1999). We review the evidence in the record in the light most favorable to the jury’s verdict, and we assume the jury believed the state’s witnesses and disbelieved evidence contradicting those witnesses. Id.
A conviction based on circumstantial evidence merits stricter scrutiny. State v. Spaeth, 552 N.W.2d 187, 192 (Minn. 1996). Circumstantial evidence is entitled to as much weight as other evidence. State v. Schneider, 597 N.W.2d 889, 894 (Minn. 1999). Where a verdict is the result of circumstantial evidence, however, it will be upheld only if the reasonable inferences from the circumstantial evidence “are consistent only with the defendant’s guilt and inconsistent with any rational hypothesis except that of his guilt.” Id. at 894-95 (citations omitted). Circumstantial evidence must “form a complete chain which, in light of the evidence as a whole, leads so directly to” the defendant’s guilt “as to exclude, beyond a reasonable doubt, any reasonable inference other than that of guilt.” Id. at 895 (citations omitted). As an appellate court, “we do not retry the case, but merely determine whether there was sufficient evidence to support the jury’s conclusion.” Id. (citations omitted).
Since no evidence was offered that directly linked appellant to the theft of the check or the forgery itself, much of the evidence against appellant might be said to be circumstantial. The only reasonable inference for the jury to draw, however, was that appellant altered the check, or knew it had been forged, before presenting it to First Star. To find otherwise would require the jury to believe appellant agreed to spend a week working in Wisconsin for a man whom he had just met at a bar, that he agreed he would be paid nothing until all of the work was completed, that he was paid more than $6,000 for a week’s worth of labor, that he accepted the check even though he thought it looked “funny,” and that he did not know exactly where this cabin was. And, that all of this occurred in the five days between the theft from David Stein’s car and the day appellant presented the check to First Star. The jury is entitled to reject implausible theories offered by a defendant. State v. Church, 577 N.W.2d 715, 719 (Minn. 1998).
Appellant argues that defense witness Tracy Olsen’s testimony that she drove him to a cabin in Wisconsin and picked him up from that cabin a week later, corroborates his version of events. But we assume the jury disbelieved a witness whose testimony contradicted the state’s witnesses. Doppler, 590 N.W.2d at 635.
Viewing the evidence in the light most favorable to the conviction, the evidence is sufficient to sustain appellant’s conviction of offering a forged check.
The trial court sentenced appellant to 120 months in prison under the “career offender” statute. Under this statute,
Whenever a person is convicted of a felony, and the judge is imposing an executed sentence based on a sentencing guidelines presumptive imprisonment sentence, the judge may impose an aggravated durational departure from the presumptive sentence up to the statutory maximum sentence if the judge finds and specifies on the record that the offender has five or more prior felony convictions and that the present offense is a felony that was committed as part of a pattern of criminal conduct.
Minn. Stat. § 609.1095, subd. 4 (1998). The trial court’s imposition of a sentence as a career offender, up to the statutory maximum, is a departure from the sentencing guidelines. Id.; see also State v. Munger, 597 N.W.2d 570, 574 (Minn. App. 1999), review denied (Minn. Aug. 25, 1999). The sentence imposed by the trial court in this case, 120 months, or 10 years, in prison, is the statutory maximum for appellant’s offense. Minn. Stat. § 609.631, subd. 4(2) (1998).
The decision to depart from the sentencing guidelines rests within the trial court’s discretion and will be reversed only for a clear abuse of that discretion. Munger, 597 N.W.2d at 574. Appellant does not dispute that he meets the requirements of this statute, as he has 12 or 13 previous felony convictions. Despite this, appellant argues that because the presumptive guidelines sentence is 26 months in prison, and because his offense is a “low-level property offense,” that the trial court abused its discretion in sentencing appellant to 120 months under the career-offender statute.
While we agree with appellant regarding the low-level of this property offense and the presumptive guidelines sentence, his record does fit the statutory requirement that the current offense has been committed as part of a “pattern of criminal conduct.” For purposes of the career-offender statute, a “pattern” consists of an “organizing principle or relationship binding * * * incidents of criminal conduct, together.” State v. Gorman, 546 N.W.2d 5, 9 (Minn. 1996). Appellant’s PSI worksheet lists 13 prior felony sentences and stays, including offenses of receiving stolen property, several degrees of burglary, unauthorized use of a motor vehicle (UUMV), theft, and escape from custody. Appellant’s criminal history score was calculated at 14. As the trial court noted at the sentencing hearing, this record represents 12 or 13 felonies within the past 13 years and virtually every one of those felonies was a theft-type offense. Appellant’s record clearly fits the required “pattern” element.
The trial court did not abuse its discretion in sentencing appellant under the career-offender statute to the statutory maximum of ten years in prison.
3. Pro Se Issues
Appellant filed a pro se supplemental brief, which raises additional issues for this court’s consideration.
Appellant argues that the prosecutor committed misconduct in statements about whether or not there was a cabin in Wisconsin and a man who paid appellant to work on that cabin. The decision on whether a new trial is required because of prosecutorial misconduct lies in the trial court’s discretion and is not reversed unless the misconduct, viewed in light of the entire record, appears so serious and prejudicial that the defendant’s right to a fair trial has been denied. State v. Wilford, 408 N.W.2d 577, 580 (Minn. 1987). If there was unusually serious misconduct, the court requires “certainty beyond a reasonable doubt that the error was harmless.” State v. Boitnott, 443 N.W.2d 527, 534 (Minn. 1989) (citations omitted); see also State v. Caron, 300 Minn. 123, 127, 218 N.W.2d 197, 200 (1974). If the case involves “less serious misconduct,” then the test “is whether the misconduct played a substantial part in influencing the jury to convict.” Boitnott, 443 N.W.2d at 534 (citation omitted); see also Caron, 300 Minn. at 128, 218 N.W.2d at 200.
The prosecutor’s statements did not shift any burden of proof to appellant, and even if the statements were considered to have had any such effect, the statements represent harmless error which does not require reversal. Appellant’s defense was that a man paid him, with the forged check, for working on a cabin in Wisconsin. The prosecutor’s statements simply argue that this story is not the truth.
In addition, in response to defense counsel’s objection to the prosecutor’s statements about the cabin, the judge gave a curative instruction to the jury in which the judge clearly stated that the state bears the burden of proof and that appellant is not required to prove his innocence. The judge’s instruction also reminded the jury that “if anything Counsel says differs from what I tell you in my instruction, you must follow my instruction.” Finally, the jury instructions provided after closing arguments again instructed the jury that the state bore the burden to prove guilt beyond a reasonable doubt and that appellant was not required to prove his innocence. Because the trial court emphasized to the jury in a curative instruction that the state bore the burden to prove appellant’s guilt, and the jury received additional instructions to that effect, any error in the prosecutor’s statements was harmless. See, e.g., Wilford, 408 N.W.2d at 580-81 (no prejudicial misconduct where defendant asked for and got a curative instruction, and jury was properly instructed on state’s burden of proof);State v. Pelawa, 590 N.W.2d 142, 148 (Minn. App. 1999) (prosecutor asked jury what evidence the defendant relied upon in his claim of reasonable doubt, the comment was not prejudicial where the prosecutor had also correctly stated the reasonable doubt standard and that the state had to prove its case beyond a reasonable doubt), review denied (Minn. Apr. 28, 1999).
Appellant argues he was denied the effective assistance of trial counsel because his counsel questioned the investigating police officer about a car stereo seized from appellant’s residence during the execution of the search warrant. Appellant argues that this questioning permissibly suggested to the jury that the stereo was stolen and was, therefore, prejudicial.
Appeal of this issue might be premature. See State v. Gustafson, 610 N.W.2d 314, 321 (Minn. 2000) (generally, ineffective assistance of counsel claims should be raised in a postconviction petition for relief rather than on direct appeal). However, even if this issue were correctly raised in this appeal, appellant’s claim has no merit. In order to prove his claim, appellant must first prove that his defense counsel’s performance was deficient. Robinson v. State, 567 N.W.2d 491, 494 (Minn. 1997). Whether counsel’s performance was deficient is measured by an objective standard of reasonableness, and there is a strong presumption that counsel’s performance falls within the wide range of reasonable professional assistance. Id. Second, appellant must prove that counsel’s deficient performance prejudiced the defense. Id. This requires appellant to prove that counsel’s errors were so serious as to deprive appellant of a fair trial. Id.
The questioning on this topic by appellant’s counsel did not constitute deficient performance, and was not prejudicial, but rather was actually helpful to appellant’s defense, as it demonstrated that none of the items stolen from David Stein’s car were in appellant’s residence. Appellant’s claim of ineffective assistance of trial counsel fails.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
 The record is not entirely clear as to whether appellant had 12 or 13 prior felony convictions.
 Appellant argues in his brief that, although the accuracy of the criminal history score was not challenged at sentencing, the criminal history score was not correctly calculated. Appellant argues that the three February 1986 convictions, for two thefts and one UUMV, should only count as one point and not two because appellant was sentenced on only one of those convictions. Minn. Sent. Guidelines II.B.1 (points are imposed for felony convictions on which a felony sentence was stayed or imposed). But even if appellant’s criminal history score was incorrectly calculated, that would not change this court’s analysis. Appellant’s challenge is to the trial court’s use of the career-offender statute. As described above, appellant’s prior 12 or 13 convictions amply support the trial court’s application of the career-offender statute. In addition, the state may use uncharged acts to prove the “pattern” of criminal conduct to support the application of the career-offender statute. Gorman, 546 N.W.2d at 9. Thus, even if appellant’s criminal history score was 13 rather than 14, the number of prior theft-type offenses that could be used to support the application of the career-offender statute still remains 12 or 13.