This opinion will be unpublished and

may not be cited except as provided by

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







State of Minnesota,





Fredy R. Palma Espinal,




Filed August 3, 2004

Affirmed in part and remanded in part

Anderson, Judge


Washington County District Court

File No. K3-02-3334


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


Doug Johnson, Washington County Attorney, Eric C. Thole, Assistant County Attorney, 14949 62nd Street North, Stillwater, MN 55082 (for respondent)


John M. Stuart, State Public Defender, Lydia Villalva Lijo, Assistant Public Defender, 2221 University Avenue SE, Suite 425, Minneapolis, MN 55414 (for appellant)


            Considered and decided by Harten, Presiding Judge; Anderson, Judge; and Crippen, Judge.*


U N P U B L I S H E D   O P I N I O N


            Appellant Fredy R. Palma Espinal challenges his conviction of second-degree felony murder and his sentence, arguing that (1) there was insufficient evidence to support the conviction and (2) the district court abused its discretion in departing upward by 18 months based on concealment of the victim’s body.  We affirm the conviction and remand for the district court to consider the application, if any, of Blakely v. Washington, 124 S. Ct. 2531 (2004), to appellant’s sentence.


            The victim, Michael Keller, was the caretaker of several apartment buildings, including the apartment building where appellant lived.  Appellant was an unemployed roofer who knew Keller and who had previously borrowed money from him.  On May 29, 2002, appellant asked Keller for more money, but Keller declined the request.

            The next day, Keller met with appellant.  Appellant claims that they discussed arrangements for Keller to purchase appellant’s truck.  Appellant contends that the deal was for appellant to keep possession of the truck and the truck title after the sale to Keller.  Keller wrote appellant a check for $1,900, which appellant explained included $900 for the truck, $500 as re-payment for a loan that appellant had made to Keller earlier, and $500 as a loan from Keller to appellant.  Appellant contends that Keller also permitted him to use Keller’s cell phone and credit card so that appellant could wire $1,500 to relatives in Honduras.  Appellant claims that Keller gave appellant his credit cards, driver’s license, and cell phone to complete the transaction.  The credit card records reflect that the transaction did not go through because the person making the request could not provide Keller’s social security number.  Thereafter, appellant went to a bank and cashed the $1,900 check.

            Keller’s wife found a message for Keller from a MBNA representative on their answering machine that day indicating that his credit card was the subject of a fraud investigation.  Keller did not return home from work that evening.  Keller’s wife spent the evening searching for her husband and noticed that his truck had been moved from one apartment complex to another.  Keller was reported missing the next day.  Also the next day, appellant purchased a round-trip ticket to Honduras and left.[1]

            On June 1, 2002, police found Keller’s identification card and red baseball cap in a ditch in Washington County.  The police also found several pieces of phone-cord wire, a black coil wire, an extension cord, a couple of black cords, and a roll of tape.  The next day, Keller’s fully clothed body was found floating face-down in a drainage pond in May Township.  A rusted roofing nail and staples were found along the road that runs near the pond and a section of swamp grass was matted down from the roadside where the nail and staples were found to the pond’s edge nearest to where the floating body was found.

            Divers found two ten-pound steel barbell weights connected to each other and to Keller’s body with a phone cord.  A third ten-pound weight was also found, but was not connected to the other weights or to the body.  The weights found in the pond were similar to those seen earlier in appellant’s apartment.  Appellant admitted owning barbell weights, but contends that he discarded the weights by leaving them next to a dumpster with a “free” sign on them.

            Dr. Michael McGee of the Ramsey County Medical Examiner’s office, identified the body as Keller and observed that the body was decomposed, that Keller had been dead for at least 48 hours, and that Keller was dead before he was put in the pond.  McGee stated that Keller’s cause of death was most likely asphyxia-related.

            On June 3, 2002, the St. Paul Police Department executed a search warrant at appellant’s apartment and found an electrical cord, a cut phone cord, two roofing nails, two other cut cords, and a steam iron with its cord cut.  On June 13, 2002, a second search was executed and the police found blood on the carpet in the storage room of appellant’s apartment.  The police also found a roofing nail on the floor of appellant’s truck near the passenger door jam, and a nail and staples in the cargo area near the tailgate of the truck.

            A trace evidence expert analyzed the items found in appellant’s apartment and truck for their color, shape, width, thickness, inner-tubing, and surface texture.  The expert testified that a cut piece of gray cord found near the pond matched a cut piece of gray cord that was found in appellant’s apartment and that a cut, black, coiled cord found near the pond matched a cut, black, coiled cord found in appellant’s apartment.  Also, the nail and staples that were found in appellant’s truck were similar to the nail and staples that were found on the roadside near the pond.  In addition, the blood from appellant’s carpet yielded a DNA profile that matched Keller’s DNA profile.

            Appellant returned to the United States in late June 2002, and was taken into custody.  When appellant was asked about his whereabouts during the evening of Keller’s disappearance, appellant stated that he was driving around looking for the restaurant where his one-year-old son’s birthday party was to be held.  Appellant testified that the party was supposed to start at 8:00 p.m. and end at midnight, he did not know the name of the restaurant, and he was unable to find it.  Appellant was charged with second-degree murder (with intent but without premeditation) in violation of Minn. Stat. § 609.19, subd. 1(1) (2002), and second-degree felony murder (without intent but while committing or attempting to commit theft) in violation of Minn. Stat. § 609.19, subd. 2(1).  Appellant pleaded not guilty.  Following a jury trial, appellant was acquitted of second-degree murder and convicted of second-degree felony murder.  The district court sentenced appellant to 168 months, an upward departure from the presumptive 150-month sentence.  This appeal followed.




            The first issue is whether there was sufficient evidence to prove appellant committed second-degree felony murder.  When considering a claim of insufficient evidence, this court’s review “is limited to a painstaking analysis of the record to determine whether the evidence, viewed in a light most favorable to the conviction, was sufficient to permit the jurors to reach the verdict which they did.”  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  The reviewing court must assume “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 [the] defendant was proven guilty of the offense charged.”  State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).  “A conviction may rest on the testimony of a single witness,” and it is the jury that “determines the weight and credibility of individual witnesses.”  State v. Miles, 585 N.W.2d 368, 373 (Minn. 1998).

            Appellant was convicted of second-degree felony murder under Minn. Stat. § 609.19, subd. 2(1) (2002), which states:

Whoever does . . . the following is guilty of unintentional murder in the second degree and may be sentenced to imprisonment for not more than 40 years:


(1) causes the death of a human being, without intent to effect the death of any person, while committing or attempting to commit a felony offense other than criminal sexual conduct in the first or second degree with force or violence or a drive-by shooting.


The predicate felony in the present case is theft from a person.

            Appellant argues that the state’s circumstantial evidence is insufficient to show that he committed or attempted to commit theft while causing Keller’s death.  We disagree.  Although a conviction based on circumstantial evidence 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).  In a conviction based on circumstantial evidence, “[t]he evidence must form a complete chain” that directly leads a rational trier of fact to conclude the defendant’s guilt “and makes any other theory unreasonable.”  State v. Gates, 615 N.W.2d 331, 337-38 (Minn. 2000).  This standard “still recognizes a jury is in the best position to evaluate the circumstantial evidence . . . [and] determine[] the credibility and weight [to be] given to the testimony of individual witnesses.”  State v. Bias, 419 N.W.2d 480, 484 (Minn. 1988) (quotation and citation omitted).

            After reviewing the record in the light most favorable to the verdict, the circumstantial evidence in this case leads us directly to a conclusion that appellant caused Keller’s death as he was committing or attempting to commit a theft from Keller.  The state presented evidence that Keller’s blood was found in appellant’s apartment, that several cut cords found near the pond where Keller was found matched several cut cords found in appellant’s apartment, that the weights found tied to Keller’s body were similar to weights that appellant previously kept in his apartment, and that the staples and nail found on the roadside near the pond were the same type of staples and nail found in appellant’s truck.  In light of this evidence, the jury could reasonably conclude that appellant caused Keller’s death.

            The state also presented evidence that appellant was financially strapped, that appellant asked both Keller and Eugene Sitzmann, the owner of appellant’s apartment, for money the day before Keller disappeared, that appellant and Keller met on the day that Keller disappeared, that appellant cashed a $1,900 check written out by Keller, that appellant used Keller’s credit card and cell phone to attempt to wire money to Honduras, and that appellant left on a flight to Honduras the day after Keller disappeared.  This evidence is sufficient to support the jury’s finding that appellant was committing or attempting to commit theft while appellant caused Keller’s death.

            While appellant raised other theories for Keller’s death, and provided explanations for why Keller’s blood might have been on appellant’s carpet, for why the electrical cord on his iron was cut, for why Keller wrote the $1,900 check out to appellant, for why Keller allowed appellant the use of his credit cards, and for why appellant left the country, we must assume the jury did not believe appellant’s explanations.  See Moore, 438 N.W.2d at 108.

Furthermore, “possibilities of innocence do not require reversal of a jury verdict so long as the evidence taken as a whole makes such theories seem unreasonable.”  State v. Ostrem, 535 N.W.2d 916, 923 (Minn. 1995).  We believe it is unreasonable that Keller would buy a truck that he did not need and yet still allow appellant to maintain possession and title.  Also, while it is true that there is no direct evidence indicating that Keller wrote the check under duress, it is unreasonable that Keller would have declined to loan appellant money on May 29, but then allowed appellant the use of his credit card to wire money on May 30.  In addition, Keller was found with several cuts to his right eyebrow and near his left ear.  While it is undisputed that these cuts did not cause Keller’s death, they do indicate the possibility of a struggle and present an explanation for how Keller’s blood might have gotten on appellant’s carpet.

            Viewing the evidence in the light most favorable to the state, we conclude that there was sufficient evidence to support the jury’s finding that appellant was committing or attempting to commit theft at the time he caused Keller’s death.


            Appellant argues that the district court abused its discretion in imposing an 18-month upward departure from the presumptive sentence.  The district court cited appellant’s attempt to conceal the victim’s body as an aggravating factor supporting the departure.  After this appeal was briefed, the United States Supreme Court issued its opinion in Blakely v. Washington, 125 S. Ct. 2531 (2004), holding that an upward departure under Washington’s determinate sentencing scheme violated the defendant’s Sixth Amendment right to a jury trial.   Appellant has cited Blakely in a letter to this court, but the application of that opinion has not been briefed.  See Minn. R. Civ. App. P. 128.05 (allowing citation of supplemental legal authority without argument).  Appellant did not request supplemental briefing, and we conclude that the interests of justice do not warrant addressing Blakely for the first time on appeal without any briefing on the issue.  See generally State v. Sorenson, 441 N.W.2d 455, 457 (Minn. 1989) (declining to address constitutional issue not fully briefed and not litigated in district court).  The district court has not had an opportunity to address appellant’s argument concerning the application of Blakely to appellant’s sentence.  Accordingly, we remand to the district court for consideration of the application, if any, of Blakely to appellant’s sentence.

            Affirmed in part and remanded in part.


* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[1] Appellant is a native of Honduras and traveled there on a regular basis to see his wife.