This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C6-00-931

 

State of Minnesota,
Respondent,

vs.

Dana Jeffrey Baskett,
Appellant.

 

Filed March 27, 2001

Affirmed

Stoneburner, Judge

 

Hennepin County District Court

File No. 99107460

 

 

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

 

Amy Klobuchar, Hennepin County Attorney, Paul R. Scoggin, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent).

 

John M. Stuart, State Public Defender, Marie Wolf, Assistant Public Defender, Suite 600, 2829 University Avenue Southeast, Minneapolis, MN 55414 (for appellant)

 

 

            Considered and decided by Schumacher, Presiding Judge, Kalitowski, Judge, and Stoneburner, Judge.

 

 

U N P U B L I S H E D  O P I N I O N

 

STONEBURNER, Judge

 

A jury found appellant Dana Jeffrey Baskett guilty of third-degree burglary, possession of burglary/theft tools, and damage to property.  Baskett challenges his conviction, arguing that the district court denied him due process by admitting eyewitness identification that was impermissibly suggestive.  Baskett also argues that the evidence was insufficient to show he had the intent to commit burglary.  Because under the totality of the circumstances the identification process was not impermissibly suggestive and the evidence is sufficient to support Baskett’s conviction, we affirm.

FACTS

 

Shortly after midnight on October 27, 1999, a Linden Hills resident was smoking a cigarette outside his house, when he saw a man on a bicycle ride into an alley between the Tupelo Honey gift shop and an apartment building.  The resident lives roughly 50 yards across the street from the building that housed the gift shop.  Streetlights illuminated the area and enabled the resident to clearly observe the man.  The resident watched as the man walked to the front of the shop and pulled on the door, while at the same time he apparently jammed something into the door.  The resident retrieved his cellular phone and dialed 911.  He then walked back outside and described his observations to the 911 operator.  The resident described the man as African-American, wearing jeans, a dark coat, and a white T-shirt.  The resident watched as the man stopped trying to open the door, got on his bike and proceeded north on Upton Avenue, eventually disappearing into an alley between a bakery and a hardware store.

            Officers Paul Hatle and Jeffrey Johnson responded to the resident’s 911 call.  When they arrived, the resident directed them to the area where he had seen the man disappear.  While the officers searched in the nearby vicinity, the resident remained outside and started walking closer to Upton Avenue.  From a distance of roughly 20 yards, the resident saw the man return to the building and enter through the front door.  The resident watched as the man went up the interior stairs where he remained for a minute, and then came down the stairs and left.  The resident again called 911 and told the operator that the man had returned. 

By this time, Officers Hatle and Johnson returned from their sweep of the area.  The resident alerted the officers that the man had returned.  The officers found the bicycle the resident had seen the man riding, and they also discovered pry marks on the back door of the building.  Officer Hatle attempted to enter the building, while Officer Johnson searched the surrounding area. 

As Johnson rounded the corner toward the alley where Hatle was checking the doorways, he ran into appellant Dana Jeffrey Baskett.  The officer observed that Baskett matched the description given by the resident and was wearing gloves.  Officer Johnson took Baskett back to the officers’ squad car.  Officer Johnson searched Baskett and discovered a screwdriver.

The officers handcuffed Baskett and placed him in the squad car.  Moments later, the officers motioned for the resident to come over and the officers removed Baskett from the squad car and shined flashlights on his face.  From about 20 feet away, the resident identified Baskett as the man he had seen in the building.  The resident told the officers that his identification was based on the fact that Baskett was of the same physical build and wore the same clothing as the man he had seen approximately 25 minutes earlier.

The officers arrested Baskett.  Crime-lab tests comparing Baskett’s screwdriver with the pry marks on the building proved inconclusive, although a tools expert opined that the marks were consistent with a screwdriver.  The owner of the building testified that he did not know Baskett and that he had not seen any gouge or pry marks on the doors when he left the building several hours earlier on October 26, 1999.  A jury found Baskett guilty of third-degree burglary, possession of burglary/theft tools, and damage to property.  Baskett appeals, arguing his show-up identification was impermissibly suggestive and that the evidence was insufficient to support his conviction.

D E C I S I O N

 

 “When reviewing pretrial orders on motions to suppress evidence, we may independently review the facts and determine, as a matter of law, whether the district court erred in suppressing -- or not suppressing -- the evidence.”  State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999) (citations omitted).

1.      The show-up identification of Baskett was not impermissibly suggestive.

Baskett argues that his show-up identification was impermissibly suggestive.  A reviewing court must “determine whether the identification procedures used were so impermissibly suggestive as to create a very substantial likelihood of irreparable misidentification.”  State v. Spann, 287 N.W.2d 406, 407 (Minn. 1979) (quotation omitted).  “If the techniques utilized by the police in obtaining the identification are tainted by suggestion, the result may be irreparable misidentification.”  State v. Taylor, 594 N.W.2d 158, 161 (Minn. 1999); see Manson v. Brathwaite, 432 U.S. 98, 107, 97 S. Ct. 2243, 2249 (1977).  “In determining whether pretrial eyewitness identification evidence must be suppressed, a two-part test is applied.”  State v. Ostrem, 535 N.W.2d 916, 921 (Minn. 1995) (citing Simmons v. United States, 390 U.S. 377, 381, 88 S. Ct. 967, 969-70 (1968)).  The threshold inquiry is “whether the procedure was unduly suggestive.”  State v. Jones, 556 N.W.2d 903, 912 (Minn. 1996).  The second part of the test is “whether, in light of the totality of the circumstances, the identification evidence is reliable.”  Id.

The supreme court has held that a one-person show-up is not impermissibly suggestive per se.  Taylor, 594 N.W.2d at 161-62.  Nevertheless, in Taylor the supreme court described a situation in which police singled out an individual from the general population based on a witness’s description, and handcuffed the individual before presenting him to the witness.  Id. at 162.  The Taylor court indicated that these circumstances would constitute an impermissibly suggestive show-up procedure.  Id.  But see State v. Hazley, 428 N.W.2d 406, 410 (Minn. App. 1988) (“Although on-the-scene show-ups are suggestive, they are permissible identification tools and do not preclude admission of identification testimony unless there is a very substantial likelihood of irreparable misidentification.”) (quotations omitted)), review denied (Minn. Sept. 28, 1988).

Under the totality of the circumstances, the reviewing court considers:

1.      The opportunity of the witness to view the criminal at the time of the crime;

2.      The witness’ degree of attention;

3.      The accuracy of the witness’ prior description of the criminal;

4.      The level of certainty demonstrated by the witness at the confrontation; and

5.      The time between the crime and the confrontation.

 

Ostrem, 535 N.W.2d at 921 (applying same totality-of-the-circumstances factors to single-photograph identification).  Here, police officers discovered Baskett in close proximity of the break-in, and he was wearing gloves and had a screwdriver in his pocket.  The resident had an ample opportunity to view Baskett from 50 yards originally, and 20 yards shortly thereafter.  The street was well lit and the resident had a good view of the race, build, and clothing of the burglar he was observing.  The resident closely watched Baskett on two separate occasions and he described the unfolding events to the 911 operator.  The resident’s description of the build and clothing of the burglar matched Baskett.  Although the resident did not see Baskett’s face, he accurately described Baskett as an African-American male dressed in dark pants, dark coat, and a white shirt.  The resident was confident in his identification at the time the officers presented Baskett to him.  Approximately 25 minutes had elapsed between the resident’s observation of the crime and his identification of Baskett, making it more likely that his identification was reliable. 

            Baskett was not picked out from the general population as was the defendant in Taylor, but was found in the area shortly after the crime.  The fact that he matched the witness’s description, which would be true of most suspects brought to a show-up, does not by itself make the show-up impermissibly suggestive.  Under the totality of the circumstances, the show-up identification procedure was not impermissibly suggestive and the district court did not err by admitting the resident’s identification evidence.

2.      The evidence sufficiently supports Baskett’s burglary conviction.

Baskett argues that the state’s evidence did not establish beyond a reasonable doubt that he entered a building to commit another crime.  In considering a claim of insufficient evidence, this court carefully reviews the evidence, in the light most favorable to the conviction, to determine whether it was sufficient to allow jurors to reach a guilty verdict.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).

Third-degree burglary occurs when a person “enters a building without consent and with intent to steal or commit any felony or gross misdemeanor while in the building.”  Minn. Stat. § 609.582, subd. 3 (1998).  The state had to prove beyond a reasonable doubt that Baskett “intended to commit some independent crime other than trespass after illegal entry into the building.”  State v. Ring, 554 N.W.2d 758, 760 (Minn. App. 1996) (citing State v. Larson, 358 N.W.2d 668, 670 (Minn. 1984)).  Because intent is a state of mind that is not physically observable, the state may prove a defendant’s intent through circumstantial evidence.  See, e.g., State v. Hardimon, 310 N.W.2d 564, 566 (Minn. 1981); cf. State v. Lodermeier, 539 N.W.2d 396, 397 (Minn. 1995) (“Premeditation is a state of mind that generally only can be inferred from circumstantial evidence.”) (citation omitted).

“Circumstantial evidence is entitled to as much weight as other evidence.”  State v. Denison, 607 N.W.2d 796, 799 (Minn. App. 2000) (citation omitted).  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.  Despite this stricter standard, however, a jury remains in the best position to evaluate circumstantial evidence, and its verdict is entitled to due deference.  Webb, 440 N.W.2d at 430; see State v. Race, 383 N.W.2d 656, 662 (Minn. 1986) (notwithstanding stricter scrutiny, “a jury is in the best position to evaluate the circumstantial evidence surrounding the crime”).

Here, the evidence sufficiently supports Baskett’s burglary conviction.  The resident observed Baskett attempt to break into the building by jamming something into the door, and the resident watched as Baskett returned to the building, entered, and went upstairs.  See, e.g., Larson, 358 N.W.2d at 670 (indicating apprehension of suspect inside a building without permission to enter and with no relationship to owner of building, may constitute sufficient evidence to support burglary conviction).  Moments later, Baskett ran into the police officers in the immediate area of the break-in.  See, e.g., State v. Gunderson, 296 N.W.2d 884, 885 (Minn. 1980) (finding evidence sufficient to support conviction where defendant was seen leaving burgled building and apprehended short time later).  When the officers discovered Baskett, he was wearing gloves and he had a screwdriver in his possession.  See State v. Andrews, 388 N.W.2d 723, 728 (Minn. 1986) (pointing out that events before and after crime “are relevant to the totality of the circumstances from which inferences of intent * * * may be drawn”).  The officers’ inspection of the building revealed that several exterior and interior doors of the building had been pried open.  Forced entry into a building may qualify as circumstantial evidence of burglary.  See State v. Crosby, 277 Minn. 22, 25-26, 151 N.W.2d 297, 299-300 (1967) (sustaining sustained burglary conviction on evidence that padlock and hasp on warehouse door had been broken and a large door had been forced open).  The Crosby court reasoned that a fact-finder could infer that the parties “intended to take something or they would not have broken in.”  Id.  Here, the evidence was sufficient for the jury to conclude beyond a reasonable doubt that Baskett entered the building with the intent to commit a crime other than trespass.

            Affirmed.