This opinion will be unpublished and

may not be cited except as provided by

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







State of Minnesota,


George K. Martin,



Filed April 10, 2001

Klaphake, Judge


Hennepin County District Court

File No. 99091336


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


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


John M. Stuart, State Public Defender, Ann McCaughan, Assistant State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414-3230 (for appellant)


            Considered and decided by Amundson, Presiding Judge, Klaphake, Judge, and Willis, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant George Martin challenges the sufficiency of the evidence to support his convictions of third-degree burglary and possession of burglary tools in violation of Minn. Stat. §§ 609.582, subd. 3; 609.59 (1998).  He also claims he is entitled to a new trial because the court erred in admitting a police officer’s testimony on the potential uses of burglary tools found in his possession and in declining to suppress appellant’s unrecorded statements made during his custodial interrogation.  Because we conclude that (1) the evidence was sufficient to support appellant’s convictions; (2) the trial court did not err in admitting the officer’s testimony regarding possible criminal uses for the burglary tools; and (3) the trial court did not err in declining to suppress statements appellant made during his custodial interrogation, we affirm.


            Appellant first claims that the evidence supporting his burglary conviction was circumstantial and insufficient to support his convictions. Appellant claims that certain evidence shows that he did not burglarize the laundry room of a group home where he was arrested.  This record includes evidence that (1) appellant had only $2.31 on his person at the time of his arrest; (2) appellant demonstrated his innocence by remaining in the laundry room after the vandalism was discovered; and (3) appellant had an alibi during the time of the offense.

            The weight and credibility of witnesses’ testimony is for the fact finder.  State v. Ring, 554 N.W.2d 758, 760 (Minn. App. 1996), review denied (Minn.  Jan. 21, 1997).  Thus, the jury was free to disregard appellant’s claimed alibi that he was at his grandmother’s house during the time the group home was burglarized because contrary evidence, including the testimony of other eyewitnesses, established that appellant was at the group home during the burglary.

            Further, while some of the evidence may have been circumstantial, it was “entitled to as much weight as other evidence.”  State v. Denison, 607 N.W.2d 796, 799 (Minn. App. 2000) (citation omitted), review denied (Minn.  June 13, 2000).  Even if there were slight inconsistencies in the state’s case, that does not require reversal if the testimony as a whole is consistent.  Id.  Here, the record also included evidence that (1) appellant was discovered in the laundry room without a plausible explanation for being there; (2) someone had broken into that secure room and vandalized the washing machines; (3) someone further vandalized the washing machines during the time that appellant was known to be in the room; and (4) appellant had burglary tools in his possession.  This evidence supports appellant’s conviction for third-degree burglary.  See Minn. Stat. § 609.582, subd. 3 (to be guilty of third-degree burglary, person must enter building without consent and intend to commit or commit felony or gross misdemeanor while in building).

            Appellant also claims that the state failed to prove that he was guilty of possession of burglary tools.  This offense requires the offender to possess any device or instrumentality with intent to use it to commit a burglary.  Minn. Stat. § 609.59.  Intent, for purposes of this offense, may be inferred from the circumstances of possession of the tools.  State v. Conaway, 319 N.W.2d 35, 41 (Minn. 1982).  Here, appellant was discovered in a building that had been broken into and vandalized, and burglary tools were found in his possession, including a pry bar, tire iron, pliers, screwdriver, flashlight, and covered knife.  The arresting officer first noticed the bag containing some of the tools when appellant attempted to hide them.  This evidence, as well as the type and number of tools found in appellant’s possession, provides sufficient evidence of intent.

            Appellant next claims that the trial court erred in admitting Sergeant Ronald Christianson’s testimony on burglary-related uses of the tools found in appellant’s possession.  On cross-examination, Christianson admitted that the tools could also be used for legitimate, non-criminal uses.  Because appellant denied that the tools were burglary tools, Christianson’s testimony was relevant to prove that the tools could have criminal uses.  As such, it was properly admitted into evidence.  See Minn. R. Evid. 402 (relevant evidence generally admissible); see also Uselman v. Uselman, 464 N.W.2d 130, 138 (Minn. 1990) (“question of whether to admit or exclude evidence rests within the broad discretion of the trial court”).

            Finally, appellant contends that the trial court erred in failing to suppress statements that appellant allegedly made to Sergeant Christianson about the possibility of “cutting a deal” after the tape recorder stopped recording during his custodial interrogation.  Police must record all custodial interrogations where feasible.  State v. Scales, 518 N.W.2d 587, 592 (Minn. 1994).  The purpose of the recording requirement is to ensure that the trial court properly resolves evidentiary disputes and accurately finds the facts.  State v. Critt, 554 N.W.2d 93, 95 (Minn. App. 1996), review denied (Minn. Nov. 20, 1996).  Police failure to record a custodial interrogation may constitute a “substantial [Scales]violation if there is a credible suggestion of police overreaching.”  State v. Schroeder, 560 N.W.2d 739, 740 (Minn. App. 1997), review denied (Minn. May 20, 1997).

            Sergeant Christianson testified that he was surreptitiously tape recording appellant’s interrogation and that the recorder stopped recording without his knowledge.  He also testified that appellant asked him to turn off the recorder.  Appellant suggests that these statements are inconsistent with each other, but Christianson also testified that he typically keeps the recorder in his pocket and that sometimes a suspect will know about the recorder and other times not.

            We conclude that the failure to record in this instance was not a substantial violation of Scales that merits reversal.  Where the record demonstrated that police unintentionally failed to record about four minutes of a custodial interrogation, this court concluded that such a violation was not a substantial Scales violation meriting suppression of the evidence.  Critt, 554 N.W.2d at 95-96.  Likewise here, Christianson testified that he did not know that the tape recorder stopped recording the last few minutes of the interrogation.  Because any violation of Scales in this case was not substantial, the trial court did not abuse its discretion in admitting Sergeant Christianson’s testimony despite a Scales recording violation.