This opinion will be unpublished and

may not be cited except as provided by

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






State of Minnesota,





Mark Anthony Hamilton,



Filed August 3, 2004

Affirmed in part and Remanded in part

Kalitowski, Judge


Hennepin County District Court

File No. 03014530


Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and


Amy Klobuchar, Hennepin County Attorney, Michael Richardson, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)


John M. Stuart, State Public Defender, Michael F. Cromett, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)


            Considered and decided by Kalitowski, Presiding Judge; Randall, Judge; and Wright, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant Mark Hamilton was convicted of possession of a burglary or theft tool, in violation of Minn. Stat. § 609.59 (2002), for using aluminum foil to defeat a record store’s security system.  On appeal, appellant contends that the state improperly charged him with this offense, the prosecutor engaged in misconduct, and the district court erred in sentencing him.  In his pro se brief, appellant also contends that he was denied effective assistance of counsel and was the victim of racial discrimination.  We affirm in part and remand in part.



Appellant contends that he is entitled to a new trial because the state incorrectly charged him with possession of a burglary or theft tool under Minn. Stat. § 609.59 (2002).  He argues that (1) aluminum foil is not a burglary or theft tool; and (2) if the state was going to charge him with a crime (other than shoplifting), it should have charged him with the more specific offense of possession of shoplifting gear under Minn. Stat. § 609.521 (2002).  The construction and applicability of a statute are questions of law, which this court reviews de novo.  Brookfield Trade Ctr., Inc. v. County of Ramsey, 584 N.W.2d 390, 393 (Minn. 1998); O’Malley v. Ulland Bros., 549 N.W.2d 889, 892 (Minn. 1996). 

Appellant claims that aluminum foil is not a burglary or theft tool.  Under the basic principles of statutory construction, courts give words their plain and ordinary meaning.  Minn. Stat. § 645.08(1) (2002).   Minn. Stat. § 609.59 prohibits a person from possessing “any device, explosive, or other instrumentality” with the intent of using it to commit burglary or theft.  Appellant first contends that aluminum foil is not a device, explosive, or instrumentality as contemplated by the statute.  We disagree.  Aluminum foil is a means by which a person can steal from a store without detection by the store’s security system.  Thus, aluminum foil is a device or instrumentality for purposes of this statute. 

Appellant also contends that aluminum foil is not a burglary or theft tool because it is a common household item.  But appellate courts have found that common household items, such as screwdrivers and gloves, may constitute burglary or theft tools.  See, e.g., State v. Travica, 398 N.W.2d 666 (Minn. App. 1987) (finding that screwdriver, gloves, splitting maul, three pairs of tin snips, and commercial saw constituted burglary or theft tools).  Because aluminum foil is a device or instrumentality under the statute and appellant not only intended to but actually used it to commit a theft, we conclude that the district court properly found appellant guilty of possession of a burglary or theft tool. 

Appellant also argues that if the state was going to charge him with a crime (other than shoplifting), it should have charged him with the more specific offense of possession of shoplifting gear under Minn. Stat. § 609.521.  Specifically, appellant contends that while aluminum foil cannot be considered a burglary or theft “tool,” it can be considered shoplifting “gear.”  But appellant failed to make this argument in the district court.  When appellant moved for dismissal of the possession of a burglary or theft tool charge, he argued only that the statute was inapplicable because aluminum foil was not a burglary or theft tool.  Thus, this argument is not properly before us on appeal.  See State v. Basting, 572 N.W.2d 281, 286 (Minn. 1997) (concluding that appellate court may consider issue first raised on appeal only where the interests of justice require).

And even if we consider appellant’s argument, we conclude that it is without merit.  A prosecutor has broad discretion in the exercise of the charging function.  State v. Foss, 556 N.W.2d 540 (Minn. 1996).  If the same set of facts constitutes more than one offense, a prosecutor can charge a defendant under whichever statute the prosecutor sees fit so long as the prosecutor does not discriminate against a class of defendants.   State v. Craven, 628 N.W.2d 632, 634-35 (Minn. App. 2001), review denied (Minn. Aug. 15, 2001). 

But when two criminal statutes, one general and one specific, share common elements but different penalties, the more specific statute governs over the more general statute, unless the legislature manifestly intends for the general statute to control.  Id.; see State v. Kalvig, 296 Minn. 395, 398, 209 N.W.2d 678, 680 (1973) (holding that statute that made welfare fraud a misdemeanor governed over general theft statute that made theft a felony); State v. Lewandowski, 443 N.W.2d 551 (Minn. App. 1989) (holding that statute that addressed failure to appear after release from custody governed over the general statute addressing escape from custody); Minn. Stat. § 645.26, subd. 1 (2002) (providing that specific provision controls over general provision in the same or another law).

Here, the state could have charged appellant with possession of shoplifting gear instead of charging him with possession of a burglary or theft tool.  See State v. Skinner, 403 N.W.2d 912 (Minn. App. 1987) (holding that a pocket in shoplifter’s trench coat constituted shoplifting “gear” for purposes of the statute).  But importantly, appellant cannot show that he was prejudiced by the state’s decision not to do so.  Unlike the statutes in Kalvig and Lewandowski, the two statutes at issue here provide identical penalties.  Specifically, a person found guilty of violating either statute can be sentenced up to 36 months in prison, fined up to $5,000, or both.  See Minn. Stat. §§ 609.521, .59.  And both crimes are ranked in the Minnesota Sentencing Guidelines at the same severity level and have the same presumptive sentence.  Therefore, we conclude the prosecutor did not prejudice appellant by charging him with possession of a burglary or theft tool instead of possession of shoplifting gear.


            Appellant contends that the prosecutor engaged in misconduct by referring to facts not in evidence during his closing argument and that the district court abused its discretion by overruling his objections to these references.  Appellate courts reviewing claims of prosecutorial misconduct “will reverse only if the misconduct, when considered in light of the whole trial, impaired the defendant’s right to a fair trial.”  State v. Powers, 654 N.W.2d 667, 678 (Minn. 2003) (citing State v. Johnson, 616 N.W.2d 720, 727-28 (Minn. 2000)).  There are two distinct standards for prosecutorial misconduct; serious misconduct will be found “harmless beyond a reasonable doubt if the verdict rendered was surely unattributable to the error,” while for less-serious misconduct, the standard is “whether the misconduct likely played a substantial part in influencing the jury to convict.”  Id. (quoting State v. Hunt, 615 N.W.2d 294, 302 (Minn. 2000)).

            Here, appellant contends that the prosecutor improperly referred to facts not in evidence by repeatedly stating that appellant had used aluminum foil to defeat the record store’s security system.  Appellant specifically challenges three statements made by the prosecutor.  First: “Why would a defendant enter a store with a roll of aluminum foil on his person?  Ladies and gentlemen, because he knows that the aluminum foil . . . will assist him in committing this theft by defeating the store’s security devices and alarms.”  Second: “[Hamilton] probably had the aluminum foil affixed down the front of his pants.”  Third:  “People use [aluminum foil] in its roll just like this; line their pants, pockets, and line their bags.” 

            But a prosecutor may argue all reasonable inferences from evidence in the record so long as the prosecutor does not intentionally misstate the evidence or mislead the jury as to inferences it may draw.  State v. Salitros, 499 N.W.2d 815, 817 (Minn. 1993).  Here, several record-store employees testified that shoplifters use aluminum foil to defeat the store’s security system, and the store manager specifically testified that some shoplifters have lined their bags, pockets, or pant legs with foil.  The store manager also testified that he saw appellant shove three CDs down the front of his pants, yet the security alarm did not activate when appellant exited the store.  The store manager further testified that he observed a roll of aluminum foil drop from appellant’s person when he was pursuing him and that he never lost sight of appellant from the time appellant exited the store until the time the foil dropped.  Therefore, we cannot say that the prosecutor engaged in misconduct by referring to facts not in evidence.  But even assuming some of the facts were outside the record, considering the prosecutor’s closing argument as a whole and the overwhelming weight of the evidence indicating appellant’s guilt, the prosecutor did not commit reversible error. 


            In his pro se brief, appellant argues that he was denied effective assistance of counsel and discriminated against because he is African American.  To prevail on a claim of ineffective assistance of counsel, an appellant must demonstrate that counsel’s representation fell below an objective standard of reasonableness, and a reasonable probability exists that the outcome would have been different but for the counsel’s errors.  Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987).  A reasonable probability is one that is sufficient to undermine confidence in the outcome.  Id.  There is a strong presumption that counsel’s performance fell within the range of reasonable assistance.  See State v. Lahue, 585 N.W.2d 785, 789 (Minn. 1998). 

            Here, appellant argues that he was denied effective assistance of counsel because his attorney failed to (1) inform the jurors about the possession of shoplifting gear statute; (2) emphasize that no fingerprints were found on the roll of aluminum foil and no videotape showing appellant had been introduced into evidence; (3) thoroughly cross-examine one record-store employee who had reported to police that appellant had lined his pants with aluminum foil; and (4) demonstrate “the inaccuracies of the prosecutor’s unintelligible theory.”  But appellant has not established that these allegations constitute ineffective assistance.  Moreover, considering the overwhelming weight of the evidence supporting appellant’s guilt, he cannot establish that but for his attorney’s alleged errors, a reasonable probability exists that the jury would have found him not guilty.  Therefore, this claim is without merit.  And after a careful review of the record, we cannot find any evidence that appellant was charged, convicted, sentenced, or otherwise prosecuted because of his race.  Thus, we conclude that appellant’s claims of race discrimination are without merit.


            Finally, appellant argues that the district court erred by sentencing him to the maximum 36-month sentence under the career-offender statute instead of the presumptive 21-month sentence. 

            After this appeal was briefed, the United States Supreme Court issued its opinion in Blakely v. Washington, ___ U.S. ___, 124 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).  Accordingly, we remand to the district court for a consideration of the application, if any, of Blakely to appellant’s sentence.

            Affirmed in part and remanded in part.