This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
IN COURT OF APPEALS
State of Minnesota,
John Paul Ackerman,
St. Louis County District Court
File No. KX01101862
Mike Hatch, Attorney General, James B. Early, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103;
Alan L. Mitchell, St. Louis County Attorney, St. Louis County Courthouse, 100 North 5th Avenue West, Suite 501, Duluth, MN 55802 (for respondent)
John M. Stuart, State Public Defender, Susan J. Andrews, Assistant Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN 55414 (for appellant)
Considered and decided by Halbrooks, Presiding Judge, Schumacher, Judge, and Anderson, Judge.
Appellant challenges his convictions of first-degree burglary and theft on the ground that there was insufficient evidence to convict him. Appellant also challenges his sentence, arguing that the trial court abused its discretion by not granting appellant’s motion for a dispositional departure. Because the evidence was sufficient to support appellant’s convictions and the trial court acted within its discretion in imposing the presumptive sentence, we affirm.
On October 3, 2001, Officer Lawrence Reedy of the Ely Police Department was at home getting ready for his 5:00 p.m. shift. When he went to find his duty belt, which holds his gun, it was missing from the bedroom closet where he normally kept it. Once Officer Reedy determined that the duty belt was missing, he notified the Ely Chief of Police, John Manning, and searched his house. No other property, including Reedy’s four other guns, was missing. Officer Reedy had last used his duty belt on October 1, 2001, but he remembered hanging the duty belt in his closet. The following day, Officer Reedy, his wife, and stepdaughter had gone on a family outing. While on the family outing, Officer Reedy did not lock his home. And while he usually locked the bedroom closet, the closet was not locked on October 2, 2001.
When Officer Reedy could not find the duty belt in his home, he started considering other options. Officer Reedy had taken appellant John Ackerman to detox on numerous occasions over the past 20 years, and they knew each other well. Reedy recalled that the last few times he had taken appellant to detox, appellant had mentioned Officer Reedy’s gun and said that he intended to steal it someday. Officer Reedy later testified that appellant had told him that if his gun were ever gone, he would know who had it. Reedy also testified that appellant told him that he had been in Reedy’s house and knew where he kept his duty belt.
Officer Reedy contacted St. Louis County Sheriff’s Deputy Joe Zebro and asked him to interview appellant regarding the incident. Deputy Zebro spoke to appellant at his residence on October 4, 2001. Deputy Zebro told appellant that a burglary had occurred at Officer Reedy’s residence and his duty belt had been stolen. Appellant initially denied knowing anything about it, telling Deputy Zebro that he had no need for a gun. But Deputy Zebro believed that appellant’s initial answers were deceptive. Zebro later testified that he told appellant that if he cooperated now, the consequences may not be as severe and again asked appellant if he took the duty belt. Appellant then conceded that he had taken the duty belt, but only as a joke.
According to appellant, he went to Officer Reedy’s house to ask him for a ride to detox. When he knocked on the door, appellant thought that he heard Officer Reedy in the bedroom, so he walked in. Once inside, appellant realized that no one was home. Nevertheless, appellant went into the bedroom, saw the duty belt, and proceeded to take it. Appellant told Deputy Zebro that, after he left the house with Officer Reedy’s duty belt, he took his daughter’s dog to a gravel pit and shot it with Officer Reedy’s gun. Appellant took Deputy Zebro to an outbuilding on his property and told the deputy that the duty belt was wrapped in a plastic bag in a corner of the attic of the building. Deputy Zebro found the duty belt in the location appellant had described.
Ely Police Officer John Saw also questioned appellant on October 4, 2001. Officer Saw testified that appellant told him that he had gone to Officer Reedy’s house on October 2, 2001, looking for a ride to detox. Appellant told Officer Saw that he knocked on Officer Reedy’s door, but there was no answer. He went in anyway and looked around. He ended up in the bedroom, where he saw Officer Reedy’s duty belt, and proceeded to take it. Appellant told Officer Saw that after he left Officer Reedy’s house he took his granddaughter’s dog to a gravel pit and shot it with the gun. Officer Saw asked appellant if he would write out a voluntary statement, and appellant agreed.
Appellant was charged with first-degree burglary in violation of Minn. Stat. § 609.582, subd. 1(b) (2000); second-degree burglary in violation of Minn. Stat. § 609.582, subd. 2(a) (2000); and theft from a person in violation of Minn. Stat. § 609.52, subd. 2(1), 3(d)(i) (2000). Before trial, the complaint was amended to add an additional charge of theft from a person, temporary control, in violation of Minn. Stat. § 609.52, subd. 2(5)(i), 3(1) (2000). Appellant waived his right to a jury trial, and a bench trial was held on January 15, 2002. The trial court found defendant guilty of first- and second-degree burglary and theft from a person, temporary control. Appellant’s motion for a dispositional departure was denied, and appellant was sentenced to the presumptive sentence of 48 months for a conviction of first-degree burglary, with a concurrent sentence for the theft, temporary control, conviction. This appeal follows.
D E C I S I O N
1. Sufficiency of Evidence
We apply the same standard of review to bench trials and jury trials when determining whether the evidence was sufficient to support a conviction. Davis v. State, 595 N.W.2d 520, 525 (Minn. 1999). In considering a claim of the sufficiency of the 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, was sufficient to allow the fact-finder to reach the verdict that it did. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). It is the exclusive role of the fact-finder to determine the weight and credibility of witness testimony. State v. Folkers, 581 N.W.2d 321, 327 (Minn. 1998). In considering an appeal based on insufficiency of the evidence, this court must assume that the fact-finder believed the state’s witnesses and disbelieved any evidence to the contrary. State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989). We will not disturb the verdict if the fact-finder, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could have reasonably concluded that the defendant was guilty of the charged offense. State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).
Minn. Stat. § 609.582, subd. 1 (2000), sets forth the requirements for burglary in the first degree and provides:
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 and may be sentenced to imprisonment for not more than 20 years or to payment of a fine of not more than $35,000, or both, if:
* * * *
(b) the burglar possesses, when entering or at any time while in the building, any of the following: a dangerous weapon, any article used or fashioned in a manner to lead the victim to reasonably believe it to be a dangerous weapon, or an explosive[.]
Minn. Stat. § 609.52, subd. 2 (2000), sets forth the acts constituting theft, temporary control, and provides:
Whoever does any of the following commits theft and may be sentenced as provided in subdivision 3:
(1) intentionally and without claim of right takes, uses, transfers, conceals or retains possession of movable property of another without the other’s consent and with intent to deprive the owner permanently of possession of the property; or
* * * *
(5) intentionally commits any of the acts listed in this subdivision but with intent to exercise temporary control only and:
(i) the control exercised manifests an indifference to the rights of the owner or the restoration of the property to the owner[.]
The trial court found that appellant entered Officer Reedy’s house without consent, possessed a dangerous weapon while in the house, and committed the crime of theft, temporary control, while in the house. The trial court further found that appellant intentionally took the duty belt from Officer Reedy’s house without consent or claim of right, intended to exercise temporary control over the duty belt, and was indifferent to the rights of Reedy by hiding the duty belt and making no effort to return it.
Appellant contends that the evidence was insufficient to show that he intended to commit a crime when he entered Officer Reedy’s house. But appellant’s argument ignores the plain language of the statute. The trial court did not find that appellant had the intent to commit a crime when he entered the house, but rather that appellant entered without permission and then committed the crime of theft, temporary control. Appellant also argues that the evidence was insufficient to show that appellant committed the crime of theft, temporary control, while in Officer Reedy’s house. In support, appellant asserts that the state failed to establish that appellant manifested an indifference to the rights of the owner or to the restoration of the property to the owner.
Generally, the crime of theft by temporary taking is completed when the property is taken. State v. Larson, 605 N.W.2d 706, 711 (Minn. 2000). A conviction of theft by temporary taking does not require an intent to permanently deprive, and it is not a defense that the property was ultimately returned. Id.; see also Minn. Stat. Ann. § 609.52, subd. 2(5) advisory comm. cmt. (West 1987) (“[R]estoration or offer to restore should be immaterial.”).
It is undisputed by appellant that he intentionally took the duty belt, without claim of right or consent. The issue is whether appellant’s control of the duty belt manifested an indifference to the rights of Officer Reedy or to the restoration of the property to Officer Reedy under Minn. Stat. § 609.52, subd. 2(5)(i). Appellant does not dispute that he entered Officer Reedy’s house without consent and that he possessed a dangerous weapon while in the house. Appellant testified and told the investigating officers that his taking of the duty belt was a joke intended to teach Officer Reedy a lesson and that he intended to return the belt to Officer Reedy.
The evidence shows that appellant took the duty belt from Officer Reedy’s house. He then went to a nearby gravel pit where he shot the gun between three and ten times to kill a dog. Appellant then took the duty belt home, put it in a plastic bag, and hid it in the attic in one of the buildings on his property. Appellant made no effort to return the duty belt to appellant, even though he knew that appellant would need it for work. Additionally, when approached by Deputy Zebro, he initially denied taking the duty belt. We conclude that there was sufficient evidence to support appellant’s convictions of theft, temporary control, and first-degree burglary.
Appellant argues that the trial court abused its discretion by denying his motion for a dispositional departure and imposing the presumptive sentence. Only in a “rare” case will a reviewing court reverse a trial court’s imposition of the presumptive sentence. State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981). The sentences set forth in the Minnesota Sentencing Guidelines are presumed to be appropriate for every case. Minn. Sent. Guidelines II.D.
A trial court may consider any relevant factors when determining whether there is a substantial basis to make a dispositional departure. State v. Case, 350 N.W.2d 473, 475 (Minn. App. 1984). Relevant factors for a court to consider include the defendant’s age, prior record, remorse, cooperation, attitude while in court, particular amenability to a probationary setting, and whether the defendant has strong support from family and friends. State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982).
Appellant asserts that the evidence of intent to commit first-degree burglary is close; therefore, in the interests of justice, this court must reduce appellant’s sentence. Further, appellant contends that, at a minimum, we should remand this matter to the trial court to consider appellant’s amenability to probation because the trial court improperly weighed the relevant factors when it stated that it could not consider appellant’s age as a factor.
Appellant is about 70 years old and appears to have a relatively good relationship with his family. He has been diagnosed with depression and suffers from serious back problems. He also has a serious problem with alcohol abuse and has been in treatment several times, with less than favorable results. Appellant has been charged three times with driving while impaired in the past 12 years. He was taken to detox on November 25, 2001, resulting in a violation of the no-drink condition of his supervised release. The probation officer who prepared the PSI felt that appellant downplayed and failed to acknowledge the seriousness of his actions. While appellant has made some statements indicating his remorse, the trial court found that appellant felt that his actions had been blown out of proportion and that appellant had not taken responsibility for his actions. The trial court also found that appellant was a dangerous alcoholic who was unable to control his drinking and that he posed a danger to public safety. The fact that appellant shot a dog after he took Officer Reedy’s duty belt supports the trial court’s conclusion.
Appellant’s relationship with his family, his age, and health problems weigh in favor of a dispositional departure. But because of the threat appellant poses to public safety, his alcohol problems, his lack of remorse, and his lack of amenability to probation, the trial court was within its discretion in denying appellant’s motion for a dispositional departure and imposing the presumptive sentence.
Finally, appellant raises several arguments in his pro se supplemental brief, including claims that the evidence was insufficient to support his convictions, that he was not allowed to sufficiently correct errors in his PSI report, and that the trial court improperly found that appellant did not express remorse for his actions. We have considered these arguments and conclude that they are without merit.
Appellant also asserts an ineffective-assistance-of-counsel claim. Because the ineffective-assistance-of-counsel claim was not raised before the trial court, it is not properly before this court on appeal. See Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996) (stating that “[t]his court generally will not decide issues which were not raised before the district court.”). Although we do not reach the merits of appellant’s claim of ineffective assistance of counsel, it is preserved for consideration in a postconviction proceeding, should appellant choose to assert it.
 The officers’ testimony was consistent that appellant stated that he shot and killed a dog but inconsistent as to the dog’s owner.