This opinion will be unpublished and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

C1-01-2158

 

State of Minnesota,

Respondent

 

v.

 

Maxxe Stevens Jackson,

Appellant.

 

Filed October 8, 2002

Affirmed

Randall, Judge

 

Ramsey County District Court

File No. 62K800003809

 

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

 

Susan Gaertner, Ramsey County Attorney, Darrell C. Hill, Assistant County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN 55102-1657, (for respondent)

 

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

 

Considered and decided by Randall, Presiding Judge, Lansing, Judge, and Harten, Judge.

 

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

RANDALL, Judge

Appellant Maxxe Stevens Jackson challenges his conviction of theft of a motor vehicle in violation of Minn. Stat. 609.52, subds. 2(17), 3(3)(d)(v) (2000). Appellant argues that the evidence was insufficient to prove that he knew or had reason to know that he was driving a vehicle without the owner's consent. Appellant also argues, in a pro se brief, that his right to a speedy trial was violated and that his right to confront his accuser was denied by the use of a videotaped deposition. We affirm.

FACTS

On November 28, 2000, at approximately 12:10 A.M., Lucille Menard left her vehicle running while she went inside a pizza store. When she returned, her 1992 Chevy Blazer was gone. Menard reported the vehicle stolen. Officer Jeffrey Gilsrud responded to the stolen vehicle report at approximately 12:17 A.M. and dispatched a description of the vehicle. Approximately an hour later, on-duty officers Kathy Pavlak and Cyril Dargay spotted a Blazer, traveling east on University Avenue, matching the description. Pavlak notified the dispatcher that the vehicle turned north on St. Albans Street.

Officer David Strecker was approximately one block away from St. Albans Street when he heard the dispatch. He proceeded east on Sherburne, saw the Blazer on St. Albans, activated his lights, and stopped the vehicle at approximately 1:15 A.M. When Strecker approached the Blazer, appellant, the driver, asked Strecker if he was he was under arrest. Strecker did not see any broken windows, and the keys were with the vehicle. After appellant was taken into custody, Officer Ronald Lehner conducted a search of the vehicle and found no groceries or cash card in the vehicle.

At trial, appellant testified that he and his girlfriend rented a room at the Travel Lodge behind the State Capitol on University Avenue and Jackson Street to celebrate his birthday. After his girlfriend left the motel, she called appellant at the motel and said that she would be returning. Appellant then left the motel room to find a cash machine to buy groceries. Appellant testified that he walked to Region Hospital to use the cash machine but could not get to it because the floor on which the machine was located was closed. Appellant then went to the Radisson Hotel in St. Paul and withdrew $40 from the ATM machine. Appellant testified that he then took a cab to Rainbow Foods on University Avenue in St. Paul, which cost him $7-$9. When appellant was arrested, he had no groceries or cash card in his possession.

Appellant testified that he saw someone he recognized in the Rainbow Foods parking lot. Appellant could describe the man, but could not provide the police with the individual's name or address. Appellant further testified that he asked the man for a ride to the motel, but that he would not do it. Appellant stated that the man said appellant could rent the vehicle for $20. Appellant testified that the individual told him if the car was not returned within the hour he would report the car stolen. Appellant claimed the unnamed individual gave him the keys to the Blazer and there were no broken windows when he took possession. Appellant further testified that he dropped the man off near University and St. Albans before returning to the grocery store to purchase food. Appellant did not purchase groceries, but instead bought only cigarettes because "he was a picky eater."

Appellant was charged on November 29, 2000, with theft of a motor vehicle in violation of Minn. Stat. 609.52, subd. 2(17), and subd. 3(3)(d)(v). On December 13, 2000, the district court conducted an arraignment and an omnibus hearing and made a probable-cause determination in favor of the state. At the hearing, appellant entered a plea of not guilty and demanded a speedy trial. The matter was originally scheduled for trial on March 26, 2001. It was continued and eventually tried on May 14, 2001. Appellant waived his right to a jury trial, and a bench trial was held.

At trial, Lucille Menard did not testify but her videotaped deposition, as the owner of the vehicle, was admitted into evidence instead of her testimony. The court admitted the deposition into evidence stating that the witness was unavailable due to health reasons. Defense counsel was present during the deposition and had the chance to cross-examine the witness.

On September 12, 2001, the district court adjudicated appellant guilty of theft of a motor vehicle, and he was sentenced to 17 months in prison. The district court stayed the execution of the sentence and placed appellant on probation for five years, with 120 days to be served and credit for 93 days time served. Then, at appellant's request, the district court ordered full execution of appellant's sentence concurrent to a sentence subsequently imposed by Hennepin County. This appeal follows.

D E C I S I O N

Sufficiency of the evidence

The standard for overturning a conviction for insufficiency of the evidence is "a high one." State v. Huss, 506 N.W.2d 290, 292 (Minn. 1993). In considering a claim of insufficient evidence, a reviewing court's only inquiry is whether, on facts in the record and legitimate inferences drawn therefrom, a jury could reasonably conclude that the defendant was guilty. State v. Bias, 419 N.W.2d 480, 484 (Minn. 1988). The court must view the evidence in the light most favorable to the prosecution and assume that the jury believed the prosecution's witnesses and disbelieved any contrary evidence. Id. The state does not need to present evidence that excludes all possibility that another person committed the crime; it only needs to make such other theories appear unreasonable. See State v. Anderson, 379 N.W.2d 70, 78 (Minn. 1985) cert. denied sub nom. Anderson v. Minnesota, 476 U.S. 1141, 106 S. Ct. 2248 (1986).

Minn. Stat 609.52, subd. 2(17), provides, in part:

Subd. 2. Acts constituting theft. Whoever does any of the following commits theft and may be sentenced as provided in subdivision 3:

 

(17) takes or drives a motor vehicle without the consent of the owner or an authorized agent of the owner, knowing or having reason to know that the owner or an authorized agent of the owner did not give consent.

 

Appellant argues that the circumstantial evidence presented by the state was insufficient to prove beyond a reasonable doubt that he committed theft of a motor vehicle. Although a conviction based only on circumstantial evidence warrants stricter scrutiny, that evidence is entitled to the same weight as any other evidence as long as the circumstances proved are consistent with the hypothesis that the accused is guilty and inconsistent with any rational hypothesis except that of guilt. State v. Ashby, 567 N.W.2d 21, 27 (Minn. 1997) (citation and quotation omitted); State v. Duca, 414 N.W.2d 513, 515 (Minn. App. 1987) (holding unexplained possession of recently stolen tools sufficient to support conclusion)

Appellant argues that because the evidence against him is entirely circumstantial, there is insufficient evidence for the district court to conclude beyond a reasonable doubt that that he knew or should have known that he lacked the owner's consent to drive the vehicle. We disagree. The district court found appellant guilty of the charged crime, concluding that several material inconsistencies and lack of evidence corroborating appellant's explanation supported the conclusion that appellant drove a motor vehicle without the owner's consent and that he had reason to know that the owner did not consent.

Appellant's lack of a satisfactory explanation for how he came into possession of the motor vehicle, the lack of corroboration, the owner's testimony, and the material inconsistencies in appellant's explanation, all taken together, are sufficient on appeal to support the conviction of theft of a motor vehicle. "Every circumstance attending the receipt of the property gives color to the character of the defendant's possession and bears upon the inferences which may be drawn therefrom." State v. Fleisher, 199 N.W. 576, 578 (Minn. 1924).

First, appellant's possession of the Blazer when police stopped him, approximately one hour after the vehicle was reported stolen, supports the district court's findings. See State v. Moen, 155 Minn. 496, 192 N. W. 936 (Minn. 1923) (holding the unexplained possession and control of recently stolen property is evidence of guilt sufficient to justify a conviction).

Second, appellant's unsatisfactory and inconsistent explanations as to how he came to possess the car and his actions that evening further support the district court's determination that appellant was guilty of the charged crime. See Welfare of C.D.L, 306 N.W.2d at 819, 820 (Minn. 1981)(discussing that the evidence was sufficient based on the implausibility of defendant's explanation). Appellant's explanation that he rented the car in the early morning hours from someone he knew but could not identify could reasonably be found to be not credible. Appellant's explanation as to where he dropped this unnamed individual off and where he was to return the car is inconsistent. Appellant testified that the police stopped him after he dropped the unnamed man off at a residence on University near Dale Avenue. However, during questioning, appellant told Nagle that he was in the process of returning the vehicle when police stopped him.

Third, guilt may be inferred from vague, indefinite, and uncorroborated explanations. State v. Anderson, 405 N.W.2d 527, 530 (Minn. App. 1987), review denied (Minn. July 22, 1987). Appellant alleges that he rented the car for an hour, that he was going to pick up his girlfriend at some unknown address, and that he was going to shop for groceries. However, appellant did not buy food that evening. Instead, he purchased only cigarettes. Appellant could not provide any information about the man he rented the car from other than a vague description of "someone he knew." Appellant testified that he took $40 from a cash machine at a St. Paul hotel, but the night that he was arrested, he and officer Nagle went to the property room, inspected appellant's personal property, and the cash card was not in his effects. The record shows that appellant's cash card was not recovered from the vehicle after police searched the vehicle. There was also no cash machine receipt showing the withdrawal. Appellant was unable to produce bank statements showing the withdrawal.

We find the evidence, taken as a whole, supports the district court's conclusion that appellant is guilty of theft of a motor vehicle.

Speedy trial

Appellant, in a pro se brief, argues that he is entitled to relief because he was denied his right to a speedy trial. The state argues (a) that appellant has waived this issue because he failed to raise it below, (b) if the panel does decide, in the interest of justice, to consider the issue, there is insufficient record for a meaningful review, and (c) his argument lacks merit.

We decline to address the issue presented by appellant as to whether he was denied the right to a speedy trial because it is not properly before this court. This issue was not briefed and argued in the district court and, thus, the record is incomplete and inadequate. See Ferguson v. State,645 N.W.2d 437, 448 (Minn. 2002) (stating that arguments raised for the first time on appeal will not be considered if known or should have been known beforehand). Further, the record is silent as to the reason for the delay, thus prohibiting meaningful review.

Denial of the right to confront witness

A criminal defendant has the right "to be confronted with the witnesses against him." U.S. Const. amend VI. The primary right guaranteed by the Confrontation Clause is the opportunity to cross-examine and impeach witnesses. State v. Pride, 528 N.W.2d 862, 865 (Minn. 1995). Appellant, in a pro se brief, argues that the district court deprived him of his right of confrontation by using the videotaped disposition of the state's witness, rather than the witness being in the courtroom for purposes of cross-examination. The state argues that appellant has waived the argument because it is raised for the first time on appeal and because appellant allowed the deposition into evidence without objection.

Generally, issues not argued below are waived on appeal. Ferguson, 645 N.W.2d at 448. Constitutional claims, however, may be considered for the first time on appeal in the interests of justice if the parties had adequate briefing time and the issues were implied in the district court. Tischendorf v. Tischendorf, 321 N.W.2d 405, 410 (Minn. 1982). Because the parties had sufficient time to fully argue the issue and the record is sufficient to provide a meaningful review, we will address this issue.

"The Confrontation Clause reflects a preference for face-to-face confrontation at trial * * * ." Maryland v. Craig, 497 U.S. 836, 849, 110 S. Ct. 3157, 3165, 111 L.Ed.2d 666 (1990) (citations omitted). A preference is not an absolute right. Id. at 849-50, 110 S. Ct. at 3165-66. Sometimes the preference must give way to the practical realities and necessities of the case. See Harrell v. State of Florida, 709 So.2d 1364, 1368 (Fla. 1998) (permitting foreign tourists assaulted and robbed while visiting Florida to testify from Argentina by satellite transmission did not violate defendant's right of confrontation).

The use of Lucille Menard's videotaped deposition at trial was proper under the rules of criminal procedure. Minn. R. Civ. P. 21.01 authorizes the taking of a deposition when there is a reasonable probability that the testimony of an unavailable witness will be used at a trial. Rule 21.06, subd. 1, provides in part that at

trial * * * a part or all of a deposition, so far as otherwise admissible under the rules of evidence, may be used as substantive evidence if it appears: (a) that the witness is * * * unable to be present or to testify at the trial * * * becauseof then existing physical * * * illness or infirmity * * * .

 

Here, the owner of the vehicle, Lucille Menard, was unable to testify at trial due to poor health. The record contains a letter from a physician stating that because of severe allergies to perfumes, Menard's appearance in court, and exposure to perfume, could produce a "potentially fatal asthma attack." Defense counsel agrees he was present at the deposition and had the opportunity to cross-examine Menard. It was well within the trial court's discretion to allow the introduction of this deposition into evidence.

Affirmed.