This opinion will be unpublished and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

C1-01-605

 

State of Minnesota,
Respondent,

vs.

Andrey Victorovich Boroday,
Appellant.

 

Filed January 7, 2002

Affirmed in part, reversed in part, and remanded

Peterson, Judge

 

Stearns County District Court

File No. K5003842

 

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

 

Roger S. Van Heel, Stearns County Attorney, Administrative Center, Room 448, 705 Courthouse Square, St. Cloud, MN  56303-4773 (for respondent)

 

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

 

            Considered and decided by Schumacher, Presiding Judge, Klaphake, Judge, and Peterson, Judge.

U N P U B L I S H E D   O P I N I O N

PETERSON, Judge

In this appeal from a conviction of first-degree aggravated robbery appellant Andrey Victorovich Boroday argues that (1) the trial court abused its discretion by admitting Spreigl evidence; (2) the evidence was insufficient to prove that he committed the robbery; and (3) his sentence was based on an incorrect criminal-history score.  We affirm the conviction but reverse the sentence and remand for resentencing.

FACTS

            At about 10:40 p.m. on February 12, 2000, two individuals wearing ski masks robbed a McDonald’s restaurant at gunpoint.  The first robber wore a gray jacket and gloves, and the second wore a blue jacket.  Both had handguns.  The second robber ordered the employees to lie face down on the floor while the first robber took about $1,900 from a manager’s desk.  The incident was recorded by surveillance video cameras.

            As a result of the police investigation of a burglary of a Gander Mountain sporting goods store on January 17, 2000, Boroday became a suspect in the investigation of the McDonald’s robbery.  The Gander Mountain store was less than a block from the Park Meadows Apartments where Boroday and his brother Peter Boroday lived.  In the Gander Mountain burglary, two burglars wearing ski masks entered the store through the roof.  Closed-circuit video surveillance and still photographs of the burglary showed the burglars raiding two gun cabinets in the store.  The burglars took 17 handguns and six pairs of night-vision binoculars.  Video surveillance tapes from the day before the burglary showed two customers in the store looking at items that were later stolen.  Police investigators showed surveillance photos to people at area businesses and apartment complexes, and a Park Meadows employee identified the customers in the photos as the Boroday brothers.

            The brothers had leased a two-bedroom apartment and two garages at Park Meadows on November 28, 1999.  Peter became unemployed on December 2, 1999, and Boroday became unemployed on January 12, 2000.  The brothers’ rent check for January 2000 was returned due to insufficient funds, and their February rent was never paid.  On February 11, 2000, Park Meadows filed an unlawful-detainer action, and on February 12, 2000, the unlawful-detainer notice was served on Peter.  The brothers owed Park Meadows $1,588.  The McDonald’s robbery occurred later on February 12, a few blocks from the Park Meadows Apartments.

            On February 13, 2000, Peter delivered $1,286 in money orders to the Park Meadows rental office, which left a $302 balance due.  At an unlawful-detainer hearing on February 25, 2000, the court ordered that unless the $302 was paid, the brothers were to be evicted on February 29, 2000.  On February 29, the Park Meadows manager and a police officer went to the brothers’ apartment to evict them, and the brothers offered to make a partial payment of $260 cash.

The officer received permission to search the apartment, and in Boroday’s bedroom, he found a blue jacket that was identical to the jacket worn by the second robber in the McDonald’s surveillance video.  Boroday admitted that the jacket was his, but both brothers denied any involvement in the McDonald’s robbery.  Because the officer was concerned that there might be weapons in the apartment, he secured the apartment and went to obtain a search warrant.

 After obtaining a warrant, police searched garage number 59, which was the garage Peter used, and found 13 new semi-automatic handguns, three with the serial numbers ground off, and six pairs of night-vision binoculars.  Boroday used garage number 58, which was adjacent to Peter’s garage, and the key to Boroday’s garage also opened Peter’s garage.[1]  Police found a grinder in garage 58.  Police arrested Boroday, but Peter had already fled the scene.[2]

In the apartment, police found a gray jacket like the one worn by the first robber in the McDonald’s surveillance tape, a grinder, numerous bills and collection agency notices, a pair of boots with soles that matched footprints found in the snow on the roof of the Gander Mountain store, and two Cash Wise grocery store receipts dated February 12 and 13, 2000.  Investigators reviewed Cash Wise surveillance videos for those two dates and saw the Borodays purchasing a food item on February 12.  Peter was wearing the gray jacket.  The surveillance video for February 13 showed Peter purchasing $1,337 in money orders with $1,340 in cash.

At trial, several McDonald’s employees testified that the height, weight, and build of the first robber were about the same as or larger than the second robber.  Descriptions of the first robber ranged from approximately five feet seven inches to six feet tall and approximately 170 to 210 pounds.  Boroday is five feet nine inches tall and weighs 150 pounds.  Peter is five feet ten inches tall and weighs 180 pounds.  Two witnesses specifically described the second robber as wearing a darker-colored jacket. 

On the day before testifying, a McDonald’s employee, Andrew Browen, identified Boroday in a six-person photographic lineup as one of the persons involved in the robbery.  At trial, however, Browen was unable to identify Boroday sitting in the courtroom as one of the robbers. 

Surveillance photos and videos from McDonald’s, from Gander Mountain on the day of and the day before the burglary, and from Cash Wise on the day of and the day after the McDonald’s robbery were introduced at trial.  Also, investigators testified that the descriptions of the guns used in the McDonald’s robbery were consistent with the guns stolen from Gander Mountain. 

D E C I S I O N

1.         In Minnesota, evidence of other crimes or bad acts is characterized as Spreigl evidence.  State v. Kennedy, 585 N.W.2d 385, 389 (Minn. 1998).  The admission of Spreigl evidence lies within the sound discretion of the district court and will not be reversed absent an abuse of discretion.   State v. Spaeth, 552 N.W.2d 187, 193 (Minn. 1996).

While [Spreigl] evidence may not be used to show the defendant acted in conformity with bad character, it may be admissible to show motive, intent, identity, or a common plan.  Even if offered for such legitimate purposes, however, the evidence may be excluded if its “probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.”

 

State v. Profit, 591 N.W.2d 451, 461 (Minn. 1999) (quoting Minn. R. Evid. 403) (citations omitted).

When balancing the probative value of Spreigl evidence against the potential for unfair prejudice, the trial court must consider how necessary the Spreigl evidence is to the state’s case.  When identity is at issue, evidence of other crimes is “admissible only if the trial court finds the direct or circumstantial evidence of defendant’s identity is otherwise weak or inadequate, and that it is necessary to support the state’s burden of proof.  It should be excluded where it is merely cumulative and a subterfuge for impugning defendant’s character or for indicating to the jury that he is a proper candidate for punishment.”

 

State v. Lynch, 590 N.W.2d 75, 81 (Minn. 1999) (quoting State v. Billstrom, 276 Minn. 174, 178-79, 149 N.W.2d 281, 284-85 (1967)) (citations omitted).

            The state offered the evidence of the Gander Mountain burglary to establish that Boroday was the second robber in the McDonald’s robbery.  We agree with the trial court that the evidence of the second robber’s identity was weak.  None of the McDonald’s employees testified in court that Boroday was the second robber.  One employee identified Boroday in a six-person photographic lineup, but the probative force of that identification was reduced by the employee’s inability to identify Boroday in court.

There was also evidence that although the Boroday brothers could not pay their rent before the McDonald’s robbery, Peter had $1,340 in cash the day after the robbery.  Similarly, there was an indirect link between Boroday and handguns found in Peter’s garage that matched the witnesses’ descriptions of guns used by the robbers; the serial numbers had been ground off some of the guns, and police found a grinder in Boroday’s garage.  And although it is true that the key to Boroday’s garage also opened the lock on Peter’s garage, there was no evidence that Boroday knew that the key would work for both garages.  The landlord testified that because there were so many garages at the apartment complex, some of the garage door locks were the same, but the tenants were not told that their garage keys might work on other garages.  This circumstantial evidence was not sufficient to support the state’s burden of proving that Boroday was the second robber. 

            The jury could see the second robber in the McDonald’s surveillance video.  But the robber’s face was hidden by a ski mask.  Additional evidence was needed to establish the identity of the second robber.  Evidence of the Gander Mountain burglary provided a possible link between the second robber in the McDonald’s video and Boroday.  The Gander Mountain evidence included two videos, one that showed two burglars in ski masks stealing items from the store and one that showed the Boroday brothers in the store on the afternoon before the burglary looking at items that were later stolen.  Also, footprints left in the snow on the roof of the Gander Mountain store matched the tread on a pair of boots later found in Boroday’s apartment.  Together, the two videos and the matching footprint and boot provided a basis for concluding that the masked burglars were the Boroday brothers.  And if the brothers were shown to be the burglars in the Gander Mountain video, comparing the Gander Mountain video with the McDonald’s video could provide a basis for determining that the brothers were also the masked robbers in the McDonald’s restaurant.

Far from being a subterfuge for impugning Boroday’s character, the Gander Mountain videos were the evidence that actually led police to consider the Boroday brothers to be suspects in the McDonald’s robbery.  While reviewing surveillance tapes from the week before the burglary, the Gander Mountain loss-prevention manager observed physical similarities between the two people in the store the afternoon before the robbery and the masked robbers.  These similarities included height and weight and the fact that the slimmer of the two burglars had a distinct walk with little bend to his knee when he stepped.  With this connection made, police used the surveillance photos to identify the two men in the store on the afternoon before the burglary, and the Boroday brothers became suspects in the Gander Mountain burglary and the McDonald’s robbery.  The trial court did not abuse its discretion in determining that evidence of the Gander Mountain burglary was more probative than prejudicial.

2.         In considering a claim of insufficient evidence, this court’s review is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, is sufficient to allow the jurors to reach the verdict that they did.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  The reviewing court must assume that the jury believed the state’s witnesses and disbelieved any evidence to the contrary.  State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).  The reviewing court will not disturb the verdict if the jury, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude that the defendant was guilty of the charged offense.  State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).

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).  “While it warrants stricter scrutiny, circumstantial evidence is entitled to the same weight as direct evidence.”  State v. Bauer, 598 N.W.2d 352, 370 (Minn. 1999) (citation 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.  Jones, 516 N.W.2d at 549.  A jury, however, is in the best position to evaluate circumstantial evidence, and its verdict is entitled to due deference.  Webb, 440 N.W.2d at 430. 

Boroday argues that even if Peter was the first McDonald’s robber, the evidence was insufficient to prove that Boroday was the second robber.  We disagree.

The court read to the jury a stipulation of the parties that stated that Browen had identified Boroday in a six-person photographic lineup as the person he saw rob the McDonald’s restaurant.  Also, the McDonald’s surveillance videos showed the second robber wearing a distinctive blue jacket with stripes and an Adidas emblem that exactly matched a jacket found in Boroday’s bedroom and that Boroday admitted was his.  In addition, although McDonald’s employees gave a range of descriptions of the two robbers’ heights, weights, and builds, the employees described the second robber as approximately the same as or thinner than the first robber, and driver’s license records indicated that Peter is five feet ten inches tall and weighs 180 pounds and Boroday is five feet nine inches tall and weighs 150 pounds.  These physical differences were consistent with pictures from surveillance cameras. 

In addition to identification evidence, there is evidence that established that Boroday had a motive to commit the robbery.  Boroday and his brother both became unemployed and did not pay their rent for two months.  Their landlord began an unlawful-detainer action on the day before the robbery, and they received notice of the action on the day of the robbery.  Even though both Boroday and Peter were unemployed, on the day after the robbery, Peter had $1,340 in cash that he used to purchase money orders to pay the late rent. 

Boroday contends that it was Peter, not him, who was served the unlawful-detainer notice and who purchased the money orders and brought them to the rental office.  Therefore, he argues, the evidence did not establish that he had a motive to rob McDonald’s.  But a Cash Wise surveillance video showed that Boroday was with Peter when the money orders were purchased.  And when police asked Boroday how he suddenly came up with the cash to pay the rent, Boroday said that he borrowed it from friends whom he would not identify.  This evidence demonstrates that although Peter actually purchased the money orders and paid the rent, Boroday was aware of their shared financial problems and only belatedly claimed that Peter alone dealt with the problems. 

Considering all of the evidence in the light most favorable to the conviction, the jury could reasonably conclude that Boroday was the second robber.

3.            Boroday argues that the district court incorrectly calculated his criminal-history score by including points for both a burglary conviction and a receiving-stolen-property conviction that arose out of the Gander Mountain burglary.  Boroday contends that because the two convictions arose out of a single behavioral incident, he should not have received a separate criminal-history point for the receiving-stolen-property conviction.

            While this appeal was pending, Boroday also made this argument in a separate appeal to this court from his convictions arising out of the Gander Mountain burglary.  In that case, this court reversed Boroday’s receiving-stolen-property conviction and vacated the sentence for that conviction.  State v Boroday, No. C8-01-553, slip op. at 16-17 (Minn. App. Jan. 4, 2002).  Consequently, the criminal-history score used when Boroday was sentenced for the McDonald’s robbery conviction was incorrect.  Therefore, we affirm Boroday’s first-degree-aggravated-robbery conviction, but we reverse the sentence Boroday received for the conviction and remand for resentencing.

            Affirmed in part, reversed in part, and remanded.



[1] However, there is no evidence indicating that Boroday was aware that his key worked on Peter’s garage.

[2] Peter was later arrested in Georgia.