This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
IN COURT OF APPEALS
State of Minnesota,
Andrey Victorovich Boroday,
Stearns County District Court
File No. K200882
Mike Hatch, Attorney General, Thomas R. Ragatz, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Roger S. Van Heel, Stearns County Attorney, 448 Administration Center, 705 Courthouse Square, St. Cloud, MN 56303-4773 (for respondent)
John M. Stuart, State Public Defender, Mary M. McMahon, Special Assistant Public Defender, McMahon & Associates Criminal Defense, Ltd., 2499 Rice Street, Suite 140, Roseville, MN 55113-3724 (for appellant)
Considered and decided by Shumaker, Presiding Judge, Halbrooks, Judge, and Stoneburner, Judge.
Appellant Andrey Victorovich Boroday challenges his convictions of first-degree burglary and receiving stolen property, on the grounds that the trial court (1) erred in admitting Spreigl evidence, (2) instructed the jury in a way that denied him his right to a unanimous verdict, and (3) imposed sentences for two offenses that stemmed from the same behavioral incident. Because respondent demonstrated a need for Spreigl evidence and the Spreigl evidence was clear and convincing, we affirm the trial court’s admission of Spreigl evidence. We reject appellant’s claim that he was denied his right to a unanimous verdict because the charging statute did not require the jury to agree on the specific means appellant used to commit burglary. But because appellant’s conviction of receipt of stolen property stemmed from the same behavioral incident as the burglary, we reverse appellant’s sentence for that conviction only.
1. Gander Mountain Burglary
Waite Park police learned of an activated alarm at the Waite Park Gander Mountain store at approximately 1:15 a.m. on January 17, 2000. Officer Arlan Schermerhorn was the first officer on the scene. He noticed two sets of footprints in the snow near the service bay doors and two sets of footprints near the gas main pipe. While searching the store’s interior, Schermerhorn saw that two locked display cases containing semiautomatic handguns and night vision equipment had been forced open. In all, 17 semiautomatic handguns and six pieces of night vision equipment were missing. Store security footage from the afternoon of January 16, 2000, the day before the burglary, showed appellant and his brother in the store looking at handguns and night vision equipment.
Police deduced that the burglars climbed a heating pipe on the building’s exterior, opened a rooftop heating unit, and slid into the store through the heating duct. Officers found a wrench and two sets of footprints near the rooftop heating unit and a nylon rope inside the heating duct. Officers also found a flashlight in some dog bedding beneath the heating duct inside the store. Detective Ralph Boeckers photographed the rooftop footprints, and concluded that they came from a pair of boots identical to some boots later found in appellant’s apartment.
The store security video of the crime indicated that the two burglars were approximately the same height, although one was slender and the other more heavyset. The thinner individual had a distinctive walking style in that he did not bend one of his knees when he walked. Both wore dark clothing and ski masks, and one carried a duffel bag.
Police created still photos from the January 16, 2000 Gander Mountain security videotape and showed them to an employee of appellant’s apartment complex. The employee recognized appellant and his brother as residents. On February 29, 2000, Officer Benno Thiesen accompanied the apartment manager to the apartment appellant shared with his brother. The manager’s purpose was to serve the two with a writ of restitution, as they were two months behind in their rent. After the manager and appellant’s brother conversed about the rent situation, Thiesen asked if he could come inside and talk to them. He showed them the January 16 photos, and appellant and his brother acknowledged that they were the individuals in the pictures. When Thiesen explained that the individuals in the photos were suspects in the January 17 burglary, both denied any involvement in the crime. The brothers then agreed to let Thiesen look at the rest of the apartment. Although Thiesen attempted to look through the apartment, he was uneasy because appellant and his brother would not follow his instructions to remain in the hallway. By this time, Thiesen suspected that the brothers were the burglars. Since the burglars had taken firearms, he thought it best to leave and return with a search warrant.
Thiesen obtained a warrant to search the apartment and the adjacent garages rented by appellant and his brother. Officers found a black duffel bag full of guns and night vision equipment in appellant’s brother’s garage. Some of the guns’ sales tags, which were from Gander Mountain, were in the bag. Thiesen noted that someone used a grinder to remove the serial numbers on three of the guns. A bench grinder was found in appellant’s garage. A search of the apartment yielded another duffel bag that contained sales tags from more stolen Gander Mountain guns, a rotary tool, a gray Adidas sweatshirt, and a blue Adidas jacket with yellow stripes.
Appellant was charged with one count of burglary in the first degree pursuant to Minn. Stat. § 609.582, subd. 1(b) (1998), and one count of receiving stolen property pursuant to Minn. Stat. §§ 609.53, subd. 1 (1998), and 609.52, subd. 3(1) (Supp. 1999).
2. McDonald’s Robbery
On February 12, 2000, at approximately 10:46 p.m., Waite Park police officer Jerry Gangle received a report of an armed robbery at the Waite Park McDonald’s. Employee Robert Butterfield testified that he was standing near the grill when two armed, masked men came behind the counter and instructed the employees to lie down on the floor. Assistant manager Logan Lauritsen was counting money in the back office. When he heard a noise outside the office door, he looked through the window and saw a masked individual pointing a gun at him. Lauritsen opened the door. The individual took the contents from the office safe, approximately $2,000. Lauritsen observed that the individual’s gun appeared to be a silver semiautomatic and witnesses described the individuals as wearing a blue jacket and a gray sweatshirt. A videotape of the robbery showed that one of the individuals walked without bending one leg.
3. Spreigl Evidence
The state introduced the evidence from the McDonald’s robbery as Spreigl evidence to aid in identifying appellant as one of the Gander Mountain burglars. The trial court found that the evidence of appellant’s involvement in the McDonald’s robbery was clear and convincing and that the evidence was relevant to show common scheme and identity of the burglars. The trial court noted that identity evidence concerning appellant was weaker because the guns and night vision equipment were found in his brother’s garage. Consequently, the trial court admitted testimony regarding the McDonald’s robbery as evidence of appellant’s identity.
Before the evidence was presented, the court gave the jury an evidentiary limiting instruction based on 10 Minnesota Practice, CRIMJIG 2.01 (1999):
This evidence is being offered for the limited purpose of assisting you in determining whether the defendant committed those acts with which he is charged in this case, namely the burglary and the receiving of stolen property in connection with Gander Mountain.
The defendant is not being tried for and may not be convicted of any offense other than the charged offenses in this case, and you are not to convict the defendant on the basis of any occurrence on February 12th of 2000 at the McDonald’s restaurant in Waite Park. To do so might result in unjust double punishment.
When the court gave final instructions to the jury, it further cautioned:
[This evidence] was admitted for the limited purpose of assisting you in determining whether the defendant committed those acts with which he is charged in this case. The defendant is not being tried, and may not be convicted of any offense other than the charged offenses in this case, the Gander Mountain case. So you are not to convict the defendant on the basis of any occurrence at McDonald’s. To do to [sic] might result in unjust double punishment.
4. Jury Instructions
In addition to the final cautionary instruction on the Spreigl evidence, the trial court also instructed the jury on the elements of first-degree burglary:
The statutes of Minnesota provide that whoever enters a building without the consent of the person in lawful possession, and commits a crime while in the building, and the person when entering or any time while in the building possesses a dangerous weapon is guilty of a crime, burglary in the first degree.
Now, the elements of burglary in the first degree are first, whether the defendant entered a building without the consent of the person in lawful possession.
Second, whether the defendant possessed a dangerous weapon when entering or at any time while in the building. A dangerous weapon is a firearm whether loaded or unloaded.
Third, whether the defendant entered the building with the intent to commit theft. It’s not necessary that the intended crime was actually committed or attempted, but it is necessary that the defendant had the intent to commit that crime at the time the defendant entered the building.
Whether the defendant intended to commit the crime must be determined from all the circumstances, including the manner and time of entry of the building, the nature of the building and it’s [sic] contents, and anythings [sic] the defendant may have had with the defendant, and all the other evidence in the case.
The court then read the elements of the charge of receiving stolen property:
[T]he elements of receiving stolen property are first, whether the property in question was stolen. This means that the property was taken by someone without the consent of the owner and with the intention of depriving the owner permanently of possession of the property.
Second element is whether the defendant received, possessed, transferred, bought or concealed the property.
Third, whether the defendant knew or had reason to know the property was stolen.
Fourth, whether the property was firearms.
Fifth, whether the defendant’s act took place on or about January 17, 2000 and February 29, 2000 in Stearns County.
Finally, the trial court read the following aiding-and-abetting instruction to the jury:
[T]he defendant is guilty of a crime committed by another person when the defendant has intentionally aided the other person in committing it or has intentionally advised, hired, counseled, conspired with or otherwise procured the other person to commit it.
The jury convicted appellant of both charges, and he received concurrent sentences of 48 months on the burglary charge and 15 months on the receiving-stolen-property charge. This appeal follows.
1. Spreigl Evidence
Appellant contends that the trial court abused its discretion in admitting Spreigl evidence of the McDonald’s robbery. There are three prerequisites to the admission of Spreigl evidence. The trial court must find
(1) that the evidence is clear and convincing that defendant participated in the Spreigl offense, (2) that the Spreigl evidence is relevant and material to the state’s case, and (3) that the probative value of the Spreigl evidence is not outweighed by its potential for unfair prejudice.
State v. DeWald, 464 N.W.2d 500, 503 (Minn. 1991). The “[a]dmission of Spreigl evidence lies within the sound discretion of the trial court, and * * * will not be reversed absent a clear abuse of discretion.” State v. Spaeth, 552 N.W.2d 187, 193 (Minn. 1996) (citation omitted). Furthermore, “[w]hether the probative value of the convictions outweighs their prejudicial effect is a matter left to the discretion of the trial court.” State v. Graham, 371 N.W.2d 204, 208 (Minn. 1985). If the admissibility of the evidence is unclear, the trial court should not allow it into evidence. DeWald, 464 N.W.2dat 503.
A. Clear and Convincing
“Clear and convincing” evidence is evidence that is greater than a preponderance of the evidence, but “less than proof beyond a reasonable doubt.” Weber v. Anderson, 269 N.W.2d 892, 895 (Minn. 1978). Evidence is clear and convincing when it is highly probable that the incident being introduced into evidence actually happened. Id.
We find that the Spreigl evidence of appellant’s involvement in the McDonald’s robbery is clear and convincing. Videotapes showed that one of the robbers walked without bending one leg, the distinctive walk possessed by appellant. The robbers used semiautomatic handguns, and police found handguns in appellant’s brother’s garage. Police also found a blue jacket and a gray sweatshirt, clothing observed by witnesses to the McDonald’s robbery, in appellant’s apartment.
B. Relevant and Material
A fact is relevant if it tends to make a material fact more or less probable than it would be without the evidence. Minn. R. Evid. 401. Although Spreigl evidence is inadmissible to prove that appellant “acted in conformity with bad character, it may be admissible to show motive, intent, identity, or common plan” if its probative value substantially outweighs its potential for unfair prejudice against appellant. State v. Profit, 591 N.W.2d 451, 461 (Minn. 1999). In evaluating whether to admit Spreigl evidence, courts “generally require that the other crime be similar in some way—either in time, location, or modus operandi—to the charged offense.” State v. Kumpala, 355 N.W.2d 697, 702 (Minn. 1984) (quotation omitted).
The closer the relationship between the events, “the greater the relevance or probative value of the evidence and the lesser the likelihood that the evidence will be used for an improper purpose.”
State v. Lynch, 590 N.W.2d 75, 80 (Minn. 1999) (quoting State v. Bolte, 530 N.W.2d 191, 198 (Minn. 1995) (citation omitted)).
The trial court found that the Spreigl evidence was relevant to show evidence of common scheme or plan and appellant’s identity. Appellant’s theory of defense at trial was based, in part, on the inability to tie appellant to the Gander Mountain burglary, given that the burglary videotape showed men in ski masks. Based on the close temporal and proximal relationships of the crimes, in addition to the physical similarities of the perpetrators, the trial court did not abuse its discretion in concluding that the evidence was relevant to show identity and common scheme or plan.
C. Probative Value and Unfair Prejudice
A trial court may only admit Spreigl evidence if its probative value outweighs its potential for unfair prejudice. In making this determination, “the trial court must consider the extent to which the Spreigl evidence is crucial to the state’s case.” DeWald, 464 N.W.2d at 504; see also State v. Moorman, 505 N.W.2d 593, 602 (Minn. 1993) (“Spreigl evidence is allowed at trial when the state’s case is weak.”). The trial court reserved this issue for trial, subsequently ruling that respondent needed this evidence because the case as to appellant’s identity was weak.
We agree with the trial court that the Spreigl evidence was more probative of appellant’s identity than it was unfairly prejudicial. In addition, the trial court gave limiting instructions on the use of the Spreigl evidence. The prosecutor gave a similar admonition to the jury in closing argument. Jurors are presumed to follow the instructions the court gives them. State v. Miller, 573 N.W.2d 661, 675 (Minn. 1998); see also State v. Ostlund, 416 N.W.2d 755, 764-65 (Minn. App. 1987) (noting that jury instructions are adequate barriers against prejudice), review denied (Minn. Feb. 24, 1988). There is nothing in this record to cause us to conclude that they failed to do so.
2. Juror Unanimity
Appellant argues that he was denied his right to a unanimous jury verdict because (1) the trial court did not specify the crime to which the aiding and abetting instruction applied; (2) identity issues denied appellant his right to a unanimous jury; and (3) the trial court gave the jury an incomplete version of 10 Minnesota Practice, CRIMJIG 4.01 (1999).
Trial courts have considerable latitude in the selection of language for jury instructions. State v. Gray, 456 N.W.2d 251, 258 (Minn. 1990). If a party challenges a jury instruction on appeal but did not object to the instruction at trial, this court may refuse to review the issue. See State v. Malaski, 330 N.W.2d 447, 451 (Minn. 1983) (“The general rule is that if defense counsel fails to object to error at trial, the defendant thereby is deemed to have forfeited his right to have this court consider that error on appeal.”). There are exceptions to this rule, however. This court may “consider this issue on appeal if it is plain error affecting substantial rights.” State v. Griller, 583 N.W.2d 736, 740(Minn. 1998); see also Minn. R. Evid. 103(d) (“Nothing in this rule precludes taking notice of errors in fundamental law or of plain errors affecting substantial rights although they were not brought to the attention of the court.”).
In this case, appellant did not object to the court’s CRIMJIG 4.01 instruction. Therefore, he must demonstrate that any error was plain and affected substantial rights.
Juries need only be unanimous regarding the defendant’s guilt or innocence and may disagree as to the actual means that a defendant used to commit the crime. For example, in State v. Begbie, this court upheld appellant’s conviction of making terroristic threats. State v. Begbie, 415 N.W.2d 103, 106 (Minn. App. 1987), review denied (Minn. Jan. 20, 1998). Appellant argued that he was denied his right to a unanimous verdict because the jury instructions did not require the jurors to decide whom he threatened. Id. at105. We upheld the conviction, noting that
[u]nanimity is required only with respect to the ultimate issue of the defendant’s guilt or innocence of the crime charged, and unanimity is not required with respect to the alternative means or ways in which the crime can be committed.
Id. at 106 (quoting Holland v. State, 280 N.W.2d 288, 292 (Wisc. 1979)). Furthermore, in State v. Hart, this court upheld a guilty verdict for criminal sexual conduct even though the jury was allowed to convict the defendant for either inflicting personal injury on the victim or instilling a fear of harm in the victim. State v. Hart, 477 N.W.2d 732, 738 (Minn. App. 1991), review denied (Minn. Jan. 16, 1992); see also Schad v. Arizona, 501 U.S. 624, 636, 111 S. Ct. 2491, 2499 (1991) (noting that “certain statutory alternatives are mere means of committing a single offense, rather than independent elements of the crime.”).
This court has granted relief to appellants when ambiguous jury instructions lead to a lack of unanimity, but these cases are factually distinguishable from the present matter. In State v. Stempf, we held that juries must be unanimous on the question of whether a defendant committed the act or acts that constitute an element of the crime charged. State v. Stempf, 627 N.W.2d 352, 355 (Minn. App. 2001). In Stempf, appellant was convicted of one count of fifth-degree possession of methamphetamine. Id. at 354. Although appellant was only charged with one count of possession, the state introduced two instances of possession to prove its case. Id. The district court did not instruct the jury that it had to agree unanimously that the same act constituted the crime. Id. Since the state did not specify the act, the lack of a specific unanimity instruction denied appellant his right to a unanimous verdict. Id. at 358.
State v. Sandve, No. C6-98-1379, 1999 WL 366568, at *2 (Minn. App. June 8, 1999), provides another instance when this court granted relief in the face arguably of ambiguous jury instructions. In Sandve, appellant was charged with one count of second-degree criminal sexual conduct. Id. Respondent argued that either intentional touching of the victim or inducing the victim to touch appellant constituted the crime. Id. (citing Minn. Stat. § 609.341, subd. 11(a)(i), (ii) (1998)). The jury instructions allowed the jury to convict appellant for touching the victim or for inducing her to touch him. Id. at *4. We held that this instruction violated appellant’s right to a unanimous jury because it could not “determine for which act appellant was unanimously convicted.” Id.
Stempf and Sandve are factually distinct from the present case because they involved multiple acts, whereas the present case involves only one act—the burglary of the Gander Mountain store. Further, appellant’s argument overlooks the language of the charging statute, which allows a burglary conviction even if the individual does not actually enter the building:
Whoever enters a building without consent and with intent to commit a crime, or enters a building without consent and commits a crime while in the building, either directly or as an accomplice, commits burglary in the first degree * * * .
Minn. Stat. § 609.582, subd. 1 (1998) (emphasis added). The jury need not have decided whether appellant actually entered the building, so long as he was an accomplice to someone who entered without permission and who committed or intended to commit a crime.
Appellant’s second jury-unanimity argument is that, in light of the lack of strong evidence of identity, combined with the allegedly erroneous jury instruction, he should be given a new trial. Appellant questions the jury’s finding that he was involved in the burglary. This argument is not tenable because this court gives great weight to jury verdicts. As the Minnesota Supreme Court stated in State v. Alton:
[The reviewing court] will not disturb the verdict if the jury, acting with due regard for the presumption of innocence and for the necessity of overcoming it by proof beyond a reasonable doubt, could reasonably conclude that a defendant was proven guilty of the charged offense.
State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988) (citation omitted). Moreover, “circumstantial evidence may be sufficient to establish that a defendant broke into a building.” State v. Hendrickson, 528 N.W.2d 263, 266 (Minn. App. 1995)(citing State v. Crosby, 277 Minn. 22, 25, 151 N.W.2d 297, 299 (1967) (circumstantial evidence, including footprints, was enough to identify defendant as a burglar)), review denied (Minn. Apr. 27, 1995). Appellant admitted that he was at Gander Mountain, looking at guns and night-vision equipment the day before the burglary; his unique walk was apparent in the security video; boots matching the footprints were found in appellant’s apartment; Gander Mountain guns, some of which had serial numbers ground off, were found in appellant’s apartment; and a grinder was found in his garage. The record indicates that there was sufficient circumstantial evidence for the jury to have had a reasonable basis to conclude that appellant was one of the burglars.
Appellant’s final argument is that the trial court presented the jury with an incomplete CRIMJIG 4.01 instruction. The trial court instructed the jury:
[T]he defendant is guilty of a crime committed by another person when the defendant has intentionally aided the other person in committing it or has intentionally, advised, hired, counseled, conspired with or otherwise procured the other person to commit it.
The remainder of CRIMJIG 4.01 reads:
The defendant is guilty of a crime, however, only if the other person commits a crime. The defendant is not liable criminally for aiding, advising, hiring, counseling, conspiring, or otherwise procuring the commission of a crime, unless some crime (including an attempt) is actually committed.
Appellant argues that the trial court should have read the complete instruction, because failure to do so presupposed that appellant’s brother burglarized the Gander Mountain store. This argument is without merit, as the omitted language focuses the jury’s attention not on the identity of the principal (“the other person”), but on the fact that a crime occurred. The jury convicted appellant of burglary, and the identity of the other individual was not an element of appellant’s conviction. The trial court did not err in its instruction on accomplice liability.
3. Single Behavioral Incident
Finally, appellant challenges the trial court’s imposition of concurrent sentences for the convictions of first-degree burglary and receiving stolen property. A defendant may not be punished for multiple offenses stemming from the same behavioral incident.
[I]f a person’s conduct constitutes more than one offense under the laws of this state, the person may be punished for only one of the offenses and a conviction or acquittal of any one of them is a bar to prosecution for any other of them.
Minn. Stat. § 609.035, subd. 1 (Supp. 1999). The Minnesota Supreme Court has noted that “a single behavioral incident is the result of a single motivation directed towards a single criminal goal.” State v. Eaton, 292 N.W.2d 260, 266 (Minn. 1980). The purpose of the single-behavioral-incident statute is to “protect a defendant convicted of multiple offenses from unfair exaggeration of the criminality of the conduct and to ensure that punishment is commensurate with culpability.” State v. Soto, 562 N.W.2d 299, 302 (Minn. 1997) (citation omitted).
The factors a trial court considers in this analysis are “time, place, and whether the offenses were motivated by a desire to obtain a single criminal objective.” Id. at 304. This determination “is not a mechanical test, but involves an examination of all the facts and circumstances.” Id. (citation omitted). We review trial court rulings on whether multiple offenses constitute a single behavioral incident under an abuse-of-discretion standard. See Eaton, 292 N.W.2d at 267 (upholding the trial court’s imposition of the maximum sentence because appellant committed numerous offenses in Minnesota and other jurisdictions).
Here, the trial court ruled that the burglary and the receipt of stolen property constituted separate behavioral incidents and sentenced appellant for both crimes. We disagree. Any plans appellant may have had to use the guns in the commission of other crimes are an insufficient basis for finding that his possession of the guns following the burglary constituted a separate and distinct criminal act. Receipt of stolen property is part-and-parcel of burglary, as “one cannot commit the crime of robbery without possessing the stolen goods for some time period.” State v. Hines, 354 N.W.2d 91, 93 (Minn. App. 1984) (citation omitted), review denied (Minn. Nov. 7, 1984). Because we conclude that the burglary and the receipt of stolen property were one behavioral incident, we reverse appellant’s sentence for the receipt-of-stolen-property charge.
Affirmed in part and reversed in part.