This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. ß 480A.08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-991

 

 

Roger Joseph Foster, petitioner,

Appellant,

 

vs.

State of Minnesota,

Respondent.

 

 

Filed June 8, 2004

Affirmed

Lansing, Judge

 

St. Louis County District Court

File No. K7-98-101824

 

 

John M. Stuart, State Public Defender, Lawrence W. Pry, Assistant Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN† 55414 (for appellant)

 

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN† 55101; and

 

Alan Mitchell, St. Louis County Attorney, St. Louis County Courthouse, 100 North Fifth Avenue West, Duluth, MN† 55802 (for respondent)

 

††††††††††† Considered and decided by Halbrooks, Presiding Judge; Lansing, Judge; and Peterson, Judge.


U N P U B L I S H E D†† O P I N I O N

LANSING, Judge

In this postconviction appeal, Roger Foster challenges the sufficiency of the evidence to sustain his convictions for aiding and abetting burglary of a bottle shop and pawnshop, motor vehicle theft, arson, two counts of robbery at a convenience store, and two driving-related assaults.† On four of these convictions he argues that ineffective assistance of counsel precluded an adequate and effective alibi defense.† We conclude that the evidence is sufficient to prove that Foster aided and abetted the commission of the offenses resulting in the eight convictions which he appeals; that the record supports the district courtís findings that it was Fosterís and not his attorneyís actions that caused the district court to preclude testimony from alibi witnesses; and that the procedural, evidentiary, and sentencing issues raised in Fosterís pro se brief do not provide a basis for reversal.

F A C T S

A jury found Roger Foster guilty of eleven offenses for his role in a series of crimes that began with the burglary of the Eveleth Bottle Shop and ended outside Mountain Iron after a high-speed chase across the Iron Range.

An Eveleth resident who lived next door to the bottle shop saw three young men trying to break the front window of the shop about 2 a.m. on September 25, 1998.† Although her view of the activities was limited, she described all three men as having shaved heads and as having driven away in a cream-colored van.† The shop owner responded to an automated intrusion alarm and discovered that the glass in the top half of the entry door had been knocked out and cases of Ice House and Milwaukeeís Best Ice Beer were missing.† An Eveleth police officer found more than a dozen cans each of Ice House and Milwaukeeís Best Ice Beer strewn across the parking lot.† The officer also found a car door handle in the street in front of the store.

At 2:39 a.m. police found a van matching the description of the van observed at the bottle shop.† Several cans of Milwaukeeís Best Ice Beer were on the front seat, and the door handle was missing from the sliding door.† The resident who lived next door to the bottle shop identified the van as the one that had earlier been at the bottle shop.† The registered owner of the van told police that he had owned the van but sold it to Foster.† The Eveleth police officer knew Foster and knew that he lived in an apartment two blocks from where the van was found.† A search of the van yielded two claw hammers, one with fairly fresh scratches on its handle, numerous documents with Fosterís name on them, and a pawn slip from North Star Pawn and Gun issued to Foster.

One block away from Fosterís apartment a Chevy Blazer parked in front of its ownersí house was reported stolen.† One of the Blazer owners used the Blazer in her rural postal-delivery job and carried postal forms and a protective can of mace in the Blazer.

About 3:30 a.m. firefighters responded to a report of a burning vehicle in Virginia.† The vehicle was a pickup truck used by employees of the U.S. Department of Agriculture.† The truck had been moved a vehicle length from where it was previously parked, the driverís door was open, and the gas cap was missing.† Police found two different postal forms about thirty feet from the burned-out truck:† an orange stamp-purchase order envelope and a yellow delivery-notice-reminder form.† The Blazer owner identified the envelope and the reminder as forms she used in her postal delivery work and that she kept in the Blazer.

At 3:36 a.m. Virginia police responded to a 911 report of an activated security alarm at North Star Pawn and Gun.† The front of the building that housed the pawnshop was partially collapsed as though a vehicle had been driven through it.† The pawnshop owner found what appeared to be pieces of a motor vehicle around the building.† Police later matched these pieces to the stolen Blazer.† The Blazer owner identified a can of mace found on the street in front of the building as the can that she carried in the Blazer.† Inside the pawnshop a glass gun case had been broken and six handguns, valued at about $1,000, were missing.

At 5:27 a.m. Virginia police received a report of an armed robbery at the Midway Lucky 7, a Virginia convenience store.† Three men carrying guns entered the store.† One of the men, who had a bandana over his head and face, jumped over the counter, put a gun to the store clerkís head, and demanded money.† The clerk opened the cash register.† After the man took the money from the cash register, he hit the clerk on the side of the head with the gun.† The clerk pressed a silent alarm and called 911 when the men left.† The storeís security system videotaped the robbery.† A bread deliveryman, who was at the convenience store, was also robbed of his wallet and checkbook.† A total of $126 was taken in the robbery.† A video-rental receipt with a boot print was found near the counter.

After hearing the 911 dispatch reporting the Lucky 7 robbery, a police officer positioned his squad nearby and spotted the Blazer coming from the direction of the Lucky 7 and entering the highway.† The officer saw that one of the three men in the Blazer had a bandana on his head.† The officer and two other squads pursued the Blazer and activated their emergency lights.† The Blazer immediately accelerated.† Police continued to pursue the Blazer at speeds ranging between eighty and one-hundred miles an hour.

At several points during this extended chase, assisting officers set out ďstop sticksĒ in the middle of the highway.† An officer who set out stop sticks on Highway 135, east of Gilbert, stood by his squad on the opposite side of the road.† As the Blazer approached, it left its lane, crossed into the opposite lane, and headed straight for the squad.† The officer ran into the ditch to avoid being run over.† The Blazer averted the stop sticks and continued toward Virginia.† A woman driving to work in Virginia saw the Blazer ďflyingĒ toward her.† The Blazer left its lane, entered her lane, and drove directly toward her.† She had to veer up on the curb to avoid being hit.† This segment of the chase caused a puncture in one of the Blazerís front tires.

After going through Mountain Iron, the Blazer encountered another set of stop sticks, which punctured its remaining front tire.† A Hibbing squad stopped the Blazer by pulling in front of it as another squad hit it from behind.† Police pulled Foster from the driverís seat.† Officers removed a wadded ball of cash from Fosterís jacket pocket and additional folded cash from his pants pocket.† The other two men in the Blazer were identified as John Douglas and Clayton Celley.† As Foster lay handcuffed on the ground an officer overheard him tell Celley, ďDonít say a word, Bro.Ē† Foster had no weapons in his possession.

A search of the Blazer produced the bread deliverymanís wallet and bank deposit slip.† His driverís license was found along the chase route.† The police also found postal forms in the Blazer that were similar to those found near the burned-out pickup truck.

Later the same day, police, acting on a tip from an informant, obtained and executed a search warrant at a home where they found three of the six guns taken from North Star Pawn and Gun.† In the same drawer of the cabinet police found a wallet and identification belonging to Douglas.† In another drawer of the same cabinet police found a wallet with identification documents and a checkbook belonging to Foster.

In February 1999 another gun from North Star Pawn and Gun was found in a Duluth home.† The resident told police that the gun had come from a friend of Fosterís.† Foster had called the resident and said that a man would come by to pick up his property.

The jury found Foster guilty of first-degree burglary for the break-in and theft at North Star Pawn and Gun, third-degree burglary for the break-in at the Eveleth Bottle Shop, second-degree arson for the burned-out USDA pickup truck, motor vehicle theft of the Blazer, two counts of first-degree aggravated robbery of the convenience store clerk and bread deliveryman, and four counts of second-degree assault for assaulting the clerk and the deliveryman, trying to run over the police officer outside Gilbert, and driving directly at the woman in Virginia.† He was also found guilty of felon in possession of a firearm.† The burglary, theft, arson, and felon-in-possession convictions were sentenced concurrently.† The aggravated robbery and assault convictions were sentenced consecutively to the first-degree burglary charge and to each other.

Foster appealed from conviction and sentencing but later moved for remand to the district court to allow him to file a postconviction-relief petition.† We dismissed the appeal, specifically providing that Foster could have all issues decided on appeal from the postconviction order as provided in State v. Steele, 449 N.W.2d 157, 157-58 (Minn. 1989). Foster filed a petition for postconviction relief, alleging that he had been deprived of effective assistance of counsel because his attorney had failed properly to investigate his alibi witnesses, resulting in the district courtís disallowance of their testimony because of the late notice of alibi defense.† The petition also requested sentencing relief on the ground that Fosterís sentence on the first-degree burglary charge did not qualify under the sentencing guidelines for consecutive sentencing because the pawnshop was not occupied at the time of the burglary.

At the postconviction hearing the district court took testimony from two alibi witnesses, including one of the previously proposed alibi witnesses and Fosterís co-defendant, Douglas, who had previously pleaded guilty to companion charges.† The court denied relief on Fosterís ineffective assistance of counsel claim, concluding that Foster had failed to prove by a preponderance of the evidence that trial counselís conduct amounted to ineffective assistance of counsel.† But the court granted sentencing relief, vacating Fosterís consecutive sentence for robbery and ordering that the sentence run concurrently with the count of first-degree burglary, thus reducing his sentence by forty-eight months.


D E C I S I O N

††††††††††† A petitioner seeking a postconviction remedy has the burden of establishing, by a fair preponderance of the evidence, facts that warrant relief.† Minn. Stat. ß 590.04, subd. 3 (2002).† On appeal, the postconviction courtís decision is reviewed under an abuse-of-discretion standard.† Hale v. State, 566 N.W.2d 923, 926 (Minn. 1997).† On factual issues, we determine whether the evidence is sufficient to sustain the postconviction courtís findings; on legal issues we exercise de novo review.† Butala v. State, 664 N.W.2d 333, 338 (Minn. 2003).

I

We first address Fosterís challenge to the sufficiency of the evidence on eight of his eleven convictions.† On a claim of insufficiency of evidence, we determine whether, based on the facts and record, and reasonable inferences drawn from these sources, a jury could reasonably conclude beyond a reasonable doubt that defendant committed each element of the charged offense.† State v. Robinson, 604 N.W.2d 355, 365-66 (Minn. 2000).† Circumstantial evidence is entitled to the same weight as other kinds of evidence.† State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).† To sustain a conviction based entirely on circumstantial evidence, the evidence as a whole must be consistent only with the defendantís guilt and inconsistent with any rational hypothesis other than guilt.† Robinson, 604 N.W.2d at 366.†

On all eight of the challenged convictions Foster was charged with aiding and abetting Douglas and Celley in the commission of the crimes.† ďA person is criminally liable for a crime committed by another if the person intentionally aids, advises, hires, counsels, or conspires with or otherwise procures the other to commit the crime.Ē† Minn. Stat. ß 609.05, subd. 1 (1998).† Aiding and abetting requires ďsome knowing role in the commission of the crime by a defendant who takes no steps to thwart its completion.Ē† State v. Merrill, 428 N.W.2d 361, 367 (Minn. 1988) (quotation omitted).† To convict a defendant for aiding and abetting, however, the state need not prove that the defendant actively participated in the overt act that constituted the primary offense.† State v. Pierson, 530 N.W.2d 784, 788 (Minn. 1995).† Presence, companionship, and conduct before and after the offense are circumstances from which oneís participation in the criminal intent may be inferred.† State v. Russell, 503 N.W.2d 110, 114 (Minn. 1993).† We apply these principles in analyzing Fosterís claims on each of the appealed convictions.

On the first conviction, for third-degree burglary of the Eveleth Bottle Shop, Foster acknowledges that the state proved that someone broke into the bottle shop and stole two or more cases of beer, but argues that the evidence is insufficient to prove that he was one of the people involved in the burglary.† The evidence established that three men who were bald or had very short hair committed the burglary and drove away in a cream-colored van.† The vanís door handle was found in the bottle shopís parking lot.† The van that was identified as the one used in the burglary was owned by Foster.† When it was found two blocks from Fosterís residence, it had a missing door handle and, inside the van, police found beer of the same brand stolen in the burglary, a claw hammer with fairly fresh scratches on its handle, and identification documents belonging to Foster.† When police stopped the Chevy Blazer that was stolen in the crime series, Foster was driving the Blazer, and Douglas and Celley were in the Blazer.† All three men had very short hair.† Foster was driving the Blazer at high speeds to avoid apprehension.† The presence of Fosterís van at the bottle shop when the burglary took place, the missing door handle found at the bottle shop, the brand of beer cans inside the van, and Fosterís high-speed chase with his two co-defendants, all with very short hair, provided sufficient evidence for the jury to infer that he participated in the planning or execution of the burglary.†

On the second conviction, for first-degree burglary at a pawnshop, Foster does not dispute that the evidence established that someone smashed in the front of the North Star Pawn and Gun in Virginia, broke a glass display case, and stole six guns.† He challenges, however, the sufficiency of the stateís proof that he was involved in the burglary or that he possessed a gun while in the building.† The evidence conclusively ties the Blazer that Foster was driving to the burglary of the pawnshop.† Pieces of the Blazer were found at the pawnshop.† A can of mace that the Blazer owner kept in the Blazer was also found there.† By virtue of the removal of the guns, the jury could infer that Foster aided and abetted the possession of a gun in the building.

Fosterís connection to the guns was further established when police, executing a search warrant on the evening following the crimes, found three of the missing guns in a garage cabinet drawer along with identification belonging to Douglas, who later pleaded guilty to companion charges and who was apprehended with Foster in the Blazer.† An adjacent drawer in the garage cabinet contained a wallet with Fosterís identification and a checkbook with Fosterís name, with a carbon for the last check written the day before the burglary.† The fourth gun, recovered in Duluth, was delivered by a friend of Fosterís purportedly on Fosterís behalf, and Foster talked with the person who received the gun.† The evidence links the stolen Blazer to the pawnshop burglary and links the guns stolen in the burglary to Foster.† The evidence is sufficient to support the juryís finding that Foster participated in planning or executing the pawnshop burglary.

On the third and fourth convictions, the armed robbery of the clerk and the bread deliveryman at the Midway Lucky 7, Foster disputes that the evidence was sufficient to prove he was the person who committed the crimes.† Eyewitness testimony, supported by the storeís surveillance video, established that a man wearing a bandana over his head and face and a black jacket jumped over the counter, put a gun to the store clerkís head, and told him to hand over all the money.† The men who robbed the Lucky 7 also took a wallet from a bread deliveryman.†

Foster was in the driverís seat of the Blazer that attempted to elude police immediately after the robbery.† When Foster was taken into custody he was wearing a black leather jacket and had a wadded ball of cash in his front pocket; the bread deliverymanís wallet was found in the Blazer.† A video-rental receipt found near the convenience store counter contained a boot print matching that of a brand of boots that Foster had purchased a few days before.† The record amply supports the juryís finding that Foster was involved in the aggravated robberies at the Lucky 7.†

On the fifth conviction, motor vehicle theft, Foster disputes the sufficiency of the evidence to show that he was involved in theft of a Chevy Blazer parked about one block from his apartment in Eveleth.† The police found Foster behind the wheel of the Blazer at the end of a high-speed chase.† The logical inference from Fosterís presence in a vehicle stolen from a location near his apartment a few hours earlier could reasonably lead the jury to conclude that he was involved in the motor vehicle theft and that he knew the Blazer was stolen.

On the sixth conviction, for arson, Foster disputes the sufficiency of the evidence to show that he was involved in the arson of a pickup truck in Virginia.† The truck had been moved from its previous location, and investigators found tire tracks on the lawn leading from the parking-lot lawn to the street.† They also discovered, about thirty feet from the burned-out truck, two different postal forms, which the owner of the Blazer identified as forms she kept in her vehicle.† The suspicious nature of the early-morning vehicle fire, combined with the tire tracks and the postal forms matching those identified as the forms kept in the Blazer, is consistent with the conclusion that arson was committed, that the arsonists were riding in the Blazer, and that Foster took part in planning or carrying out the crime.

On the seventh and eighth convictions, for driving-related assault, Foster challenges the sufficiency of the evidence to show that he intended to assault the police officer or the woman in Virginia during the high-speed chase.† In the course of the high-speed chase following the robbery, a police officer set out ďstop sticks.Ē† The Blazer swerved across the road at a high rate of speed and headed directly toward the officer, causing him to run into the ditch to avoid being hit.† When the Blazer continued into the city of Virginia, it proceeded along Second Avenue at about eighty miles per hour in a thirty-mile-an-hour zone.† A woman driving to work saw the vehicle followed by squad cars ďflyingĒ toward her, leaving its lane and driving directly toward her.† She testified that she feared for her life and had to veer up on to the curb to avoid being struck.† Additional testimony indicated that numerous other vehicles had to take evasive action to avoid being struck by the Blazer during the chase.† Intent is an inference drawn by the jury from the totality of the circumstances.† State v. Marsyla, 269 N.W.2d 2, 5-6 (Minn. 1978).† Given the totality of the circumstances, Fosterís argument that he did not intend to harm anyone during the chase strains credulity.

We conclude that the reasonable inferences from the evidence at the trial are inconsistent with any other rational hypothesis except that of Fosterís guilt.† The evidence was sufficient to prove that Foster aided and abetted the commission of all eight of the appealed offenses.

II

 

To prevail on a claim of ineffective assistance of counsel the defendant must show that his attorneyís representation ďfell below an objective standard of reasonablenessĒ and that there is ďa reasonable probability that, but for counselís unprofessional errors, the result of the proceeding would have been different.Ē† Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (quoting Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S. Ct. 2052, 2064, 2068 (1984)).† ď[A]n attorney acts within the objective standard of reasonableness when he provides his client with the representation of an attorney exercising the customary skills and diligence that a reasonably competent attorney would perform under the circumstances.Ē† State v. Doppler, 590 N.W.2d 627, 633 (Minn. 1999) (quotation omitted).†

There is a strong presumption that counselís performance ďfalls within the wide range of reasonable professional assistance.Ē† Pierson v. State, 637 N.W.2d 571, 579 (Minn. 2002) (quotation omitted).

In his postconviction appeal Foster argued that defense counselís performance fell below an objective standard of reasonableness by failing to provide a notice of alibi defense and by not disclosing the names of four alibi witnesses that Foster wanted to testify.† The postconviction court rejected this claim.

After the jury was sworn, but before opening statements, Fosterís attorney informed the court that he wanted to call the four alibi witnesses whose names had not been previously provided as potential defense witnesses.† The prosecutor objected to the late notice and asked that the witnesses be barred from testifying as a sanction for late disclosure.† The district court expressed its belief that the late disclosure was an attempt to delay trial and ruled that the witnesses could not testify.† In the postconviction hearing Foster contended that he had provided the names to his defense attorney three weeks before trial, and that his attorneyís late disclosure precluded him from asserting a meaningful alibi defense on the charges of burglary at the Eveleth Bottle Shop, theft of the Chevy Blazer, arson of the USDA pickup truck, and burglary of the pawnshop.

Following the postconviction hearing, the district court found that Foster had not provided his attorney with the names of the alibi witnesses and their phone numbers until the morning of trial.† The district court essentially rejected Fosterís evidence and accepted his attorneyís account of the events.† We defer to the postconviction courtís determination on credibility.† Consequently, we accept that the failure timely to disclose the names is not attributable to the attorney.† The court found that Fosterís attorney argued vigorously for the introduction of the testimony and did not provide an inadequate defense.

The evidence also supports the postconviction courtís conclusion that, even if the witnesses had been allowed to testify, the results of the trial would not have been different.† Foster was convicted for aiding and abetting the liquor store burglary, the arson, and the pawnshop burglary.† The statements of two alibi witnesses taken during trial established Fosterís presence at a party immediately preceding the crimes.† The statement of only one of the proposed alibi witnesses interviewed by the police unequivocally supported Fosterís alibi defense.† Foster claimed to have given the defense investigator the name of an additional, potential alibi witness.† But when this person was interviewed by police shortly after trial, he gave a statement that corroborated Fosterís participation in the crimes.† We therefore conclude that the second prong of the Strickland analysis was not met, and the district court did not abuse its discretion in declining to vacate Fosterís conviction on the grounds of ineffective assistance of counsel.†

III

††††††††††† In his pro se brief, Foster raises five claims of evidentiary, procedural, and sentencing errors and three claims of ineffective assistance of counsel.† None of these claims were raised in posttrial motions.

††††††††††† We reject Fosterís claim that the officerís reference to prior contact with him and a reference to a previous search warrant was unfairly prejudicial.† Both references were relevant to show Fosterís proximity and involvement.† Furthermore, it was undisputed that Foster had a felony conviction; the conviction was entered into the record as part of the felon-in-possession-of-a-firearm charge.† Fosterís argument that the state failed timely to disclose seven witnesses who testified at trial is not supported by the record.† Although the stateís final witness list was longer than the initial witness list, the additional witnesses had been timely disclosed prior to trial in supplemental disclosures.

††††††††††† Fosterís argument that the state impermissibly added a charge of attempted first-degree murder is also unsupported.† The state acted within its authority in amending the charge.† The record also fails to support Fosterís claim that the counts are a single behavioral incident.

††††††††††† Foster argues that the court incorrectly sentenced him for participating in a crime spree rather than a series of crimes.† The courtís reference to a crime spree did not affect Fosterís sentence.† The district court did not impose an upward durational departure; Foster received a guidelines sentence.

††††††††††† Foster contends that the district court abused its discretion by disallowing the alibi testimony.† We disagree.† The court acted within its discretion in disallowing the testimony.† Fosterís three claims of ineffective assistance of counsel, which differed from those presented by appellate counsel, were not raised in the petition for postconviction relief, and the evidence at the postconviction hearing does not provide a basis for these claims. †Consequently they have not been preserved for appeal.

††††††††††† Affirmed.