This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).






State of Minnesota,


Alton James Horne,



Filed February 13, 2001


Peterson, Judge



Hennepin County District Court

File No. 97100448


Mike Hatch, Attorney General, Hilary Lindell Caligiuri, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN  55103; and


Amy Klobuchar, Hennepin County Attorney, Linda K. Jenny, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN  55487 (for respondent)


William E. McGee, Fourth District Public Defender, Warren R. Sagstuen, Assistant Public Defender, 317 Second Avenue South, Suite 200, Minneapolis, MN 55401 (for appellant)



            Considered and decided by Peterson, Presiding Judge, Lansing, Judge, and Stoneburner, Judge.

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



In this appeal from a conviction of theft of a motor vehicle, appellant Alton Horne argues that the trial court erred in ruling that his statement to police about exiting the stolen car was admissible as an admission by a party opponent.  Horne also argues that evidence that he was the first person to leave the car and that he left through the driver's door was insufficient to prove that he was the driving the stolen car.  We affirm.


Minneapolis police officers stopped an Oldsmobile that was occupied by four men, two in the front seat and two in the back seat.  As the officers got out of their squad car, the Oldsmobile sped off.  The driver of the Oldsmobile apparently saw a second squad car and attempted to change direction to avoid it.  The driver lost control, and the Oldsmobile crashed into a Subaru that was stopped in front of the second squad car and then crashed into a utility box.

            One of the officers in the second squad car, Officer McCormick, immediately ran to the Oldsmobile to apprehend the driver.  The doors on the passenger side of the Oldsmobile were damaged and would not open, and the rear doors were locked with child safety locks, so everyone in the car got out through the driver’s door.  None of the officers saw who was driving the car before the crash, but McCormick and several other officers noted in their reports that Horne was the first person to exit the vehicle.

            McCormick wrote in his report:

I immediately exited my squad and apprehended the driver of the Olds, which is a confirmed stolen car.  I ID’d the driver of the stolen car as ALTON JAMES HORNE[.] * * *


It should be noted that HORNE was apprehended as he was exiting from behind the wheel of the stolen car. 


Officer Wente stated in his report:


Officers * * * rushed to the doors of the stolen vehicle and brought the occupants out at gunpoint.  [HORNE] was witnessed by myself attempting to exit the driver’s seat in an attempt to flee, but was taken into custody by OFFICER MCCORMICK before he could clear the car’s door.


The investigator assigned to the case, Sergeant Tatge, noted in his report that the steering column was visibly pulled out and there were broken pieces of plastic on the floor.  After Horne was given a Miranda warning, Tatge questioned him.  Horne stated that he was the second person to get out of the car and that the driver, Tyjuan Green, got out ahead of him.  Tatge also questioned McCormick, who said,

The two people that were in the front seat and the adult male that was arrested for this, he was the first one to come out. The other guy kinda slid[] out behind him[.] * * * I didn’t actually see him driving, but, he was in position to, there is no way the other guy was going to crawl out over him[.]


(Quotations and emphasis omitted.)


When asked if there was an opportunity for the two front seat occupants to switch positions, McCormick replied,

Oh, absolutely not, they couldn’t have done that because impact happened so quickly and I was out of that car in a second[.]  Cause I knew they were going to try to bail[.]  So, that’s why I wanted to make sure, I rounded them up right away[.] There was not enough time for them to switch positions[.]


(Quotations and emphasis omitted.)


When asked if he was in the best position to see who was driving the car, McCormick answered,

I was in a position to see the two front seat passengers[.] The two in the back, I’m not actually sure on [their] positions[.]  Cause I was focused more on the driver and the front seat passenger[.]


(Quotations and emphasis omitted.)


When asked who exited the stolen car first, McCormick replied, “[Horne] was the number one guy out[.]  Number two guy out was Green[.]”  (Quotations and emphasis omitted.)

            Green sustained an injury to his forehead, which Horne claims was caused by Green hitting his head on the steering wheel during the collision.

            The parties agreed to a trial on stipulated facts and stipulated to the admission of the police and investigator reports.  However, Horne moved to suppress his statement to Tatge that he was the second person out of the car.  The district court admitted the statement as a nonhearsay admission.  At trial, Horne stipulated that he was the first person out of the car and maintained that, to get out of the car, he climbed over Green, who was driving.  The trial court found Horne guilty of theft of a motor vehicle.


1.         This court largely defers to the trial court’s evidentiary rulings, which will not be overturned absent a clear abuse of discretion.  State v. Kelly, 435 N.W.2d 807, 813 (Minn. 1989).  Even if the trial court errs in admitting evidence, “[a] reversal is warranted only when the error substantially influences the jury to convict.”  State v. Occhino, 572 N.W.2d 316, 321 (Minn. App. 1997) (quoting State v. Loebach, 310 N.W.2d 58, 64 (Minn. 1981)), review denied (Minn. Jan. 28, 1998).

            Minn. R. Evid. 801(d)(2)(A) provides:

A statement is not hearsay if:


* * * *

(2) Admission by party-opponent.  The statement is offered against a party and is (A) the party’s own statement, in either an individual or a representative capacity * * *.


            Citing State v. Palmer, 507 N.W.2d 865 (Minn. App. 1993), review denied (Minn. Jan. 14, 1994), Horne argues that his statement to Tatge that he was the second person to get out of the Oldsmobile was not an admission under rule 801(d)(2)(A) because it was consistent with his position at trial that he was not guilty.  In Palmer, this court stated:

Under rule 804(b)(3), an exception to the hearsay rule, the statement must be against the declarant’s interest when made and the declarant must be unavailable as a witness.  Rule 801, on the other hand, applies to words or actions inconsistent with a party’s position at trial, relevant to the substantive issues in the case, and offered against the party.  Statements that meet rule 801 requirements need not satisfy the hearsay exception requirement that they possess circumstantial guarantees of trustworthiness because the party against whom the statement is offered is present in the courtroom and may cross-examine the witness offering the statement or otherwise present evidence explaining the statement.


Id. at 867-68  (citations omitted).

One of the issues at trial was the identity of the driver.  This issue, in turn, raised the issue of who was the first person to get out of the car through the driver’s door.  At the accident scene, Horne claimed that he got out of the car after Green.  At trial, Horne’s position was that he got out of the car first, but he climbed over Green to get out.  Both of these statements are consistent with Horne’s claim that he was not guilty because he was not driving the Oldsmobile.  But Horne’s statement at the scene that he got out after Green is inconsistent with his position at trial that he got out first by climbing over Green. Because his earlier statement contradicted his position at trial, the earlier statement met the requirement of rule 801(d)(2)(A) that the statement be “offered against a party.”

            Citing State v. Weber, 272 Minn. 243, 137 N.W.2d 527 (1965), Horne argues that his statement to Tatge was not an admission under rule 801(d)(2)(A) because the statement did not contain an inference of guilt.  In Weber, the supreme court stated:

An “admission” is, after all, a statement, direct or implied, of facts tending to establish guilt.  It does not necessarily constitute an acknowledgement of guilt but of facts and circumstances, which, if taken in connection with proof of other facts, may permit an inference of guilt.


Id. at 254, 137 N.W.2d at 535.


Horne’s statement that he was the second person out of the car is not an acknowledgement of guilt.  And by itself, the statement may not permit an inference of guilt.  But the statement was not offered by itself.  It was offered with Horne’s later statement that he was the first person out of the car.

In that circumstance, the admission discredits the party’s statements inconsistent with the present claim asserted in pleadings and testimony, much like a witness impeached by contradictory statements.


Charles T. McCormick, McCormick on Evidence § 254, at 136 (John W. Strong ed., 5th ed. 1999).

2.         A “conviction based entirely on circumstantial evidence merits stricter scrutiny than convictions based in part on direct evidence.”  State v. Jones, 516 N.W.2d 545, 549 (Minn. 1994) (citations omitted).  The circumstantial evidence must form a complete chain that, in view of the evidence as a whole, leads so directly to the guilt of the defendant as to exclude beyond a reasonable doubt any reasonable inference other than guilt.  Id. 

            Horne argues that because there was no direct observation of him driving the car, his conviction is based on circumstantial evidence, and the circumstantial evidence was insufficient to prove beyond a reasonable doubt that he was driving.  Horne contends that the evidence is consistent with his theory that Green was driving and suffered a head injury on the steering wheel, and Horne scrambled over Green to get out of the car first.

            But McCormick’s report did not just state that Horne was the first person to get out of the car.  McCormick stated that he apprehended Horne “as he was exiting from behind the wheel of the stolen car.” And Tatge indicated in his report that McCormick told him that Horne was in a position to drive and “there is no way [the passenger] was going to crawl out over [the driver].” Also, Wente stated in his report that he witnessed Horne “attempting to exit the driver’s seat in an attempt to flee.”  These statements directly contradict Horne’s claim that he climbed over Green to get out of the car.

This court, in reviewing a challenge to the sufficiency of the evidence, must assume the factfinder believed the state’s witnesses and disbelieved contrary evidence.  This court must view the evidence and any reasonable inferences that could be drawn from it in a light most favorable to the state.


State v. Day, 501 N.W.2d 649, 652 (Minn. App. 1993) (citations omitted).  Viewed in the light most favorable to the state, McCormick’s and Wente’s statements exclude beyond a reasonable doubt the inference that Horne was a passenger in the Oldsmobile even though he was the first person to get out of the car through the driver’s door.