This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Frank Kent Patterson,
Filed January 18, 2005
Hennepin County District Court
File No. 03034968
Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, Minnesota 55101-2134; and
Amy Klobuchar, Hennepin County Attorney, Michael K. Walz, Assistant County Attorney, C-2000 Government Center, Minneapolis, Minnesota 55487 (for respondent)
John M. Stuart, State Public Defender, Michael F. Cromett, Assistant Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, Minnesota 55414 (for appellant)
Considered and decided by Willis, Presiding Judge; Toussaint, Chief Judge; and Hudson, Judge.
U N P U B L I S H E D O P I N I O N
TOUSSAINT, Chief Judge
Three intruders broke into Ray and Charlotte Sanford’s Minneapolis home on May 16, 2003. The intruders assaulted the Sanfords and took money and other belongings from their home. The state charged appellant with two counts of first-degree burglary in violation of Minn. Stat. § 609.582, subd. 1(c) (2002). A jury subsequently convicted appellant of the charges.
At the time of trial, Mr. Sanford was 82 years old and Ms. Sanford was 74 years old. Mr. Sanford suffers from Alzheimer’s disease. In April 2003, Mr. Sanford suffered a pulmonary embolism, which required a temporary stay in a nursing home. On April 18, 2003, the day Mr. Sanford returned home, the nursing home arranged for a medical equipment company to deliver two walkers to the Sanfords’ home. The Sanfords asked their friend, Audrey Walton, to wait at their home for the walkers to be delivered.
While Walton was waiting at the Sanford’s home, a deliveryman, later identified as appellant, brought the walkers. Appellant asked to use the bathroom. Walton directed appellant to the bathroom upstairs, near the Sanfords’ bedrooms. Not more than ten minutes later, appellant used the bathroom again. The Sanfords returned home, and appellant showed Mr. Sanford how to use the walkers. Walton and Ms. Sanford thought appellant was polite and “highly professional.” Appellant then left the Sanfords’ home.
On or about May 9, 2003, appellant returned to the Sanfords’ home around 3:00 p.m. He rang the doorbell. Ms. Sanford said it takes her a while to get down the steps, and when she reached the door, appellant was “fiddling with the storm door.” Ms. Sanford asked him if he wanted something, and he replied that he understood that she was having trouble with the walkers. Ms. Sanford told him that they were not having trouble with the walkers. Ms. Sanford noticed that appellant’s van was parked one house away. She did not remember whether he was wearing his uniform that said “APA Medical” on the front, but she did see the company’s logo on the van.
On May 16, 2003, Mr. Sanford was upstairs in bed and Ms. Sanford was watching television in the living room of their home. Ms. Sanford heard a loud noise and moved toward the stairs, thinking her husband had fallen. At approximately 9:50 p.m., three men burst through the dead-bolted front door. The men shouted and ran upstairs, circling Ms. Sanford. One of the men pushed Ms. Sanford to the floor, held down her head, and repeatedly said, “Don’t look.” Ms. Sanford was able to yell twice to Mr. Sanford to call the police before the man pushed her down. The man unsuccessfully tried to pull Ms. Sanford’s engagement ring off her finger and repeatedly asked where her purse was. Ms. Sanford did not see the man who was holding her head down. She was in fear for her life and concerned about what the men were doing to her husband upstairs. After about six or seven minutes, the two men who had been upstairs ran downstairs.
Mr. Sanford heard his wife yell, “[C]all the police.” Mr. Sanford was in the process of calling 911 when two men came upstairs and stopped him. The men put him on the bed and put a pillow over his head and said, “don’t look.” The men asked Mr. Sanford where his wallet and wife’s jewelry case were. The men fumbled around the room and left. Though Mr. Sanford was bleeding slightly from the head, he does not remember the men hitting him.
The men ran out the front door, and Ms. Sanford called 911. She told the 911 operator that the men that broke into the house were “big men, over six feet tall.” Officer Robert Dale arrived at the Sanfords’ home shortly after 10:00 p.m. that night. The front door to the Sanfords’ home was open and damaged. The Sanfords were extremely upset, and Ms. Sanford had vomited. Officers requested an ambulance. Paramedics treated a small cut on Mr. Sanford’s forehead and a bruise on his arm.
Officer Erick Fors received a description of the intruders as three black males. He asked Ms. Sanford whether anyone suspicious had been to the home recently and she replied that a black man from a medical supply company was recently in their home. Ms. Sanford described appellant as a black man in his twenties, with an average build, average height, and medium complexion. Officer Jorgensen testified that a partial latent fingerprint recovered from a plastic box that was sitting on top of the Sanfords’ dresser matched appellant’s fingerprint.
The Sanfords identified as missing: (1) four watches: one gold-colored watch from on top of the dresser, and three from the left-hand dresser drawer, one of which was engraved “Roy L. Sanford” on the back; (2) Mr. Sanford’s billfold from the left-hand top dresser drawer; (3) $350 in cash from the left-hand dresser drawer; (4) a set of keys from on top of the dresser; and (5) a pillowcase. Ms. Sanford did not report the watches missing until three days after the break-in because she did not notice that they were missing until after the officers left her home.
Ms. Sanford identified appellant from a photographic lineup. But she was not able to identify any of the men who broke into her home on May 16, 2003. Pursuant to a search warrant, officers recovered a watch from appellant’s residence that was inscribed on back, “Roy L. Sanford.” Officers also took shoes from appellant’s home, none of which matched print marks that officers lifted from the Sanford’s front door. The officers also took 50 keys from appellant’s residence, none of which matched the keys taken from the Sanfords’ home. Appellant’s driver’s license indicates that he is five feet, eight inches tall and weighs 180 pounds.
Appellant’s girlfriend, Kimberly Hickle, offered to let officers search her van. The officers found a paystub from APA Medical Equipment, Inc. for appellant, dated 4-7-03 to 4-18-03. Hickle testified at appellant’s trial that she and appellant have been together for six or seven years and have one child together. Hickle testified that on May 16, 2003, she and appellant were at a friend’s home. Hickle testified that she left the friend’s home between 9:30 and 10:30 p.m. and that appellant came home between 10:30 p.m. and 12:00 a.m. Hickle said she remembers what she did the evening of May 16, 2003, because she was in the hospital as a result of having a miscarriage she had that morning.
Appellant testified that when he went to the Sanfords’ home on April 18, 2003, to deliver medical equipment, he used the bathroom only once. After using the bathroom he went into a bedroom “looking for a couple of bucks or something.” Appellant said he took a watch from inside of a dresser drawer. Appellant also testified that he went back to the Sanford’s home on another occasion after receiving a call over the radio to pick up equipment. Appellant said the address led him “right in the area of the house.” Appellant testified that he rang the doorbell and asked Ms. Sanford if she called about the walker. When she replied, “No,” he left.
Appellant denied breaking into the Sanfords’ home on May 16, 2003, and said he was at a friend’s house that evening with Hickle. Appellant admitted that he lied after being arrested by a police officer. He told the officer that he “might have took a gold watch from a house one time,” when asked if he took a gold watch from the Sanfords’ home. Appellant said, “I was kind of trying to tell him that I had, in fact, took the watch, but I just couldn’t get it out of me.” Eventually, appellant testified that he told the officer that he did not take the watch. Appellant also said that he denied to the officer that his fingerprints were on a plastic box. Appellant testified, “I denied that, and I still deny that, but if my fingerprint was there, then it’s obvious that I touched something I shouldn’t have been touching.”
On October 10, 2003, the jury convicted appellant of first-degree burglary. On January 28, 2004, appellant filed a notice of appeal.
Appellant contends that the circumstantial evidence presented at his trial is insufficient to support his conviction of burglary because the undisputed evidence supports a reasonable alternative hypothesis—that appellant took the Sanfords’ personal property when he delivered walkers to their home prior to the burglary.
When reviewing the sufficiency of evidence, we view the evidence in the light most favorable to the state and assume that the jury believed the state’s witnesses and disbelieved contrary evidence. State v. Moore, 481 N.W.2d 355, 360 (Minn. 1992). A conviction “based entirely on circumstantial evidence merits stricter scrutiny than convictions based in part on direct evidence.” State v. Jones, 516 N.W.2d 545, 549 (Minn. 1994). “While it 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). The circumstantial evidence upon which the conviction rests, must not be consistent with a rational hypothesis other than that of guilt. State v. Webb, 440 N.W.2d 426, 431 (Minn. 1989). Inconsistencies in the state’s case or possibilities of innocence do not require reversal of a jury verdict, however, so long as the evidence taken as a whole makes such theories seem unreasonable. State v. Anderson, 379 N.W.2d 70, 78 (Minn. 1985). A jury is in the best position to evaluate circumstantial evidence, and its verdict is entitled to due deference. Webb, 440 N.W.2d at 430.
The first-degree-burglary statute provides in relevant part that
[w]hoever 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 . . . if:
. . . .
(c) the burglar assaults a person within the building or
on the building’s appurtenant property.
Appellant argues that he stole the Sanfords’ watch and left his fingerprint on the plastic box in their home on April 18, 2003. Appellant points to the following evidence to support his contention: (1) Walton testified that appellant had two opportunities to go into the Sanfords’ bedroom when he was at their home delivering medical equipment on April 18, 2003; and (2) the Sanfords were not able to testify that the inscribed watch found at appellant’s residence was present in their house on May 16, 2003. Additionally, appellant argues that he was with Hickle at a friend’s house during the burglary.
Further, appellant argues that the minimal evidence related to the burglary establishes that he was not in the Sanfords’ home the night of the burglary. Appellant cites the lack of a match between the shoe prints taken from the Sanfords’ front door and the shoes seized from appellant’s house, and Ms. Sanford’s contrasting physical descriptions of the burglars and appellant. Additionally, appellant argues that the fact that the burglars did not wear masks or attempt to conceal their faces is evidence that appellant was not involved in the robbery because “[a] burglar who knows he could be identified by the homeowners would make some extra effort to cover his or her face in addition to commanding the homeowners not to look at him.”
In his pro se supplemental brief, appellant argues (1) the prosecutor committed misconduct during her closing argument; (2) he was denied effective assistance of counsel; (3) he was improperly convicted of two burglaries in violation of Minn. Stat. § 609.035 (2002) because he was convicted of “two counts” of burglary; (4) he was not afforded a grand jury; (5) he was not informed of the “nature and cause” of the charges against him under Minn. Const. art. I, § 6; (6) he was convicted pursuant to a statute that did not have an enacting clause and was, therefore, “no law”; and (7) there was no title for the statute under which appellant was convicted, and therefore “no law.”
Appellant’s arguments lack merit. First, appellant argues that the prosecutor committed misconduct during her closing argument by shifting the burden of proof to appellant when she said that appellant’s fingerprint on the plastic box constituted “indisputable” evidence. According to appellant, the prosecutor may not refer to evidence as “indisputable” because it is “tantamount to  arguing the defendant fail[ed] to call witnesses.”
Appellant did not object to the prosecutor’s statements at trial. Generally, a defendant’s failure to object to a prosecutor’s closing argument or to request a cautionary instruction constitutes a waiver of the right to have the issue considered on appeal. State v. Hunt,615 N.W.2d 294, 302 (Minn. 2000). In the absence of a timely objection, appellant is only entitled to a new trial if “the alleged conduct was so clearly erroneous under applicable law and so prejudicial to the [appellant’s] right to a fair trial that the [appellant’s] right to a remedy should not be forfeited.” Id.; State v. Whittaker, 568 N.W.2d 440, 450 (Minn. 1997).
Here, the prosecutor’s remarks did not shift the burden of proof to appellant. Appellant’s partial latent fingerprint on the plastic box is undisputable evidence that appellant touched the box at some point in time. Therefore, the prosecutor’s statements were neither clearly erroneous, nor prejudicial to appellant’s right to a fair trial.
Second, appellant argues that he received ineffective assistance of counsel because no one “informed” him of the contents of Minn. R. Prof. Conduct 1.7. See Minn. R. Prof. Conduct. 1.7 (delineating general rule on conflicts of interest). Because appellant has not even alleged that his attorney had a conflict of interest, appellant’s argument lacks merit.
Third, appellant was not convicted of “two burglaries . . . in the same house, and at the same time,” constituting double punishment. See Minn. Stat. § 609.035, subd. 1 (2002) (“if a person’s conduct constitutes more than one offense . . . the person may be punished for only one of the offenses”). Rather, appellant was convicted of two counts of burglary because there were two victims present.
HUDSON, Judge (dissenting).
I respectfully dissent. I would reverse appellant’s conviction because the circumstantial evidence is insufficient as a matter of law to sustain appellant’s conviction of first-degree burglary.
It is well established that the circumstantial evidence must form a complete chain that, in view of the evidence as a whole, leads so directly to the guilt of the defendant as to exclude beyond a reasonable doubt any reasonable inference other than guilt. State v. Jones, 516 N.W.2d 545, 549 (Minn. 1994). Here, a reasonable hypothesis other than guilt exists. Based on the circumstantial evidence presented, it is plausible that appellant stole the Sanfords’ watch and left his fingerprint on the plastic box when he was upstairs near their bedroom, allegedly using the bathroom, on May 16, 2003. But appellant also had the opportunity to take the Sanfords’ watch and leave his fingerprint on the plastic box on April 18, 2003, when he delivered the walker and then used the Sanfords’ bathroom. Moreover, the Sanfords could not confirm that the watch was present in their home on the day of the burglary, May 16, 2003. Additionally, appellant’s initial unwillingness to admit to police officers that he stole the Sanfords’ watch when he was at their home on April 18, 2003 is understandable, given that stealing the watch is a crime. Because appellant could have stolen the watch on either occasion, a reasonable hypothesis other than guilt exists and his conviction cannot stand.
The majority opinion suggests that even if appellant took the Sanfords’ watch and left his fingerprint in their home on April 18, 2003, appellant, nevertheless, could have also been one of the intruders who entered the Sanfords’ home on May 16, 2003. But again, the circumstantial evidence fails to establish beyond a reasonable doubt that appellant was one of the intruders. The burglars’ footprints on the Sanfords’ front door did not match any of appellant’s shoes that officers took from his residence, and Ms. Sanford’s description of the burglars does not match her description of appellant. In addition, none of the keys recovered from appellant’s residence matched the keys taken from the Sanfords’ home, and appellant had an uncontradicted alibi for the date of the burglary.
The majority decision also relies on the fact that appellant went to the Sanfords’ home approximately a week before the burglary. While admittedly suspicious behavior, this evidence is not enough to support the conviction. Appellant rang the Sanfords’ doorbell in the middle of the afternoon, with his company van parked one house away. Appellant testified that he was in the neighborhood because he had received a call over the radio to pick up equipment and the given address led him near the Sanfords’ home. While the jury apparently chose to credit, instead, Ms. Sanford’s testimony that she had not called the medical equipment company to report a problem with the walker, the state did not prove that appellant had not received a call from his employer stating that someone in the area requested assistance. Ms. Sanford’s testimony does not establish beyond a reasonable doubt that appellant was one of the May 16, 2003 burglars.
Because the circumstantial evidence as a whole does not form a complete chain that leads so directly to the guilt of the appellant as to exclude beyond a reasonable doubt any reasonable inference other than guilt, I would reverse appellant’s conviction.
 The parties stipulated that the intruders assaulted the Sanfords in their home on May 16, 2003.