This opinion will be unpublished and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
Jeffrey Allen Stoltz,
Filed February 1, 2005
Robert H. Schumacher, Judge
Robert J. Raupp, Benton County Attorney, Courts Facility Building, 615 Highway 23, Post Office Box 189, Foley, MN 56329 (for respondent)
John M. Stuart, State Public Defender, Sara L. Martin, Assistant Public Defender, 2221 University Avenue S.E., Suite 425, Minneapolis, MN 55414 (for appellant)
Considered and decided by Schumacher, Presiding Judge; Minge, Judge; and Parker, Judge.*
U N P U B L I S H E D O P I N I O N
ROBERT H. SCHUMACHER, Judge
Jeffrey Allen Stoltz appeals his convictions and sentence for first-degree burglary and theft of a firearm. He argues that the evidence recovered by the police should be suppressed, there was insufficient evidence to sustain his convictions, and the imposed sentence violated his constitutional rights. We affirm the convictions but reverse and remand for resentencing.
In May 2002, Stoltz received permission from his friend C.M. to stay for a weekend at the apartment she was renting in Alexandria, MN. C.M. was paying the rent and utility bills and was the only person listed on the lease. Since the middle of April 2002, C.M. had been staying at a different residence, but continued to stop by the apartment a few times a week and most of her belongings remained at the apartment. Stoltz did not receive a key to the apartment but was shown how to enter without a key, which was the way C.M. also entered. Between May and June 2, 2002, Stoltz spoke with C.M. about possibly taking over her lease, but there was no follow-up.
On or about June 2, 2002, C.M. went to the apartment to collect mail and to move some of her possessions to her other residence, when she discovered Stoltz's belongings and realized that he was still staying there. C.M. spoke to Stoltz and indicated that she was upset that he was still in the apartment and told him that she wanted him to leave. She did not give him a specific date. Stoltz continued to stay overnight at the apartment, and on June 6, 2002, police contacted C.M. and requested permission to search the apartment in connection with a criminal investigation. C.M. gave the police permission to search the entire apartment, without restriction. During the search of the apartment police found a compound bow with arrows, an RCA camcorder, and an asthma medication inhaler. Police also found a small camera tripod inside a black duffle bag.
The items that police recovered from the apartment matched items that were stolen from a home during a burglary on May 24, 2002. Stoltz was charged with one count of first-degree burglary under Minn. Stat. § 609.582, subd. 1(b) (2002). Stoltz was also accused of stealing nine firearms from the home, including a .22-caliber pistol, and was charged with theft of a firearm under Minn. Stat. § 609.52, subd. 2(1) and subd. 3(1) (2002). Prior to trial, Stoltz moved to suppress the evidence found at C.M.'s apartment. The trial court denied the motion, and the case proceeded to trial.
At trial, Detective Troy Heck testified that the intruder entered the home by kicking open the side-door of the garage and left a partial shoe print of a heel with a u-shaped design and a zigzagging pattern. Detective Heck was able to match this shoe print to a shoe found in C.M.'s apartment. Detective Heck also testified that he observed a tread mark of a tire track in the driveway, which was very similar to the tire tread on Stoltz's vehicle.
The jury heard testimony regarding the recovery of the stolen .22 caliber pistol. A thirteen year-old boy found the pistol lying on the north side of 8th Avenue in Alexandria on June 4, 2002. This is the same street along which police had been involved in a vehicle pursuit of Stoltz earlier that morning following a complaint of squealing tires. Officer Keith Melrose testified that during this police pursuit he observed two tires and other debris fly out of the rear of Stoltz's pickup truck. The state also offered the testimony of a shoe dealer who testified that the shoes recovered from C.M.'s apartment were a size ten. The shoe dealer also measured Stoltz's feet and testified that while they were a size nine to nine and a half, nonetheless Stoltz is able to wear the shoes matching the shoe print left on the side door of the garage. The state also introduced recordings of telephone conversations between Stoltz and a female, in which Stoltz asked the woman to go to C.M.'s apartment and remove the bow and arrow and camcorder from the apartment.
Stoltz testified that the stolen items recovered from C.M.'s apartment were not his and were brought there by Marie, a friend of C.M.'s son who Stoltz had dated. He also testified that C.M.'s two teenage sons and their friends used the apartment and that he let Marie borrow his truck on the day of the burglary.
The jury found Stoltz guilty of first-degree burglary under Minn. Stat. § 609.582, subd. 1(b) (2002), and theft of a firearm under Minn. Stat. § 609.52, subds. 2(1), 3(1) (2002). The presumptive sentence was 98 months, but the trial court imposed a 147-month sentence under the career-offender statute, Minn. Stat. § 609.1095, subd. 4 (2002), after finding that Stoltz had five or more prior felony convictions and that the present offense was committed as part of a pattern of criminal conduct.
1. Stoltz argues that the police could not search C.M.'s apartment, where he was staying, without a warrant because he had a reasonable expectation of privacy, and therefore the evidence obtained as a result of the search should be suppressed. We disagree.
When reviewing pretrial orders on motions to suppress evidence, this court may independently review the facts and determine, as a matter of law, whether the district court erred in refusing to suppress the evidence. State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999). This court is bound by the trial court's factual findings unless they are clearly erroneous. State v. Britton, 604 N.W.2d 84, 87 (Minn. 2000).
The Fourth Amendment protects individuals from unreasonable searches and seizures. "A search occurs whenever government agents intrude upon an area where a person has a reasonable expectation of privacy." State v. Hardy, 577 N.W.2d 212, 215 (Minn. 1998). In Minnesota v. Olson, 495 U.S. 91, 99-100, 110 S. Ct. 1684, 1689-90 (1990), the Supreme Court concluded that society recognizes that overnight guests have an expectation of privacy in a host's home. In deciding the issue, the Court rejected the argument that an overnight guest must have the power to admit or exclude others in order to claim Fourth Amendment protection. Id. at 99, 110 S. Ct. at 1689.
Here, Stoltz was an overnight guest at C.M.'s apartment and stayed about two weeks. C.M. originally gave Stoltz permission to spend a weekend at the apartment and later discovered that he was still there almost two weeks later. While C.M. told him to leave, she did not order him to leave immediately and did not give Stoltz a specific date at which point he had to depart. She continued to allow him to stay there and therefore his status as an overnight guest remained. The record supports the determination that Stoltz had a reasonable expectation of privacy in C.M.'s apartment.
The trial court concluded that the search was valid because C.M. as the sole lessee of the apartment had the actual authority and properly consented to the warrantless search of the apartment. See State v. Licari, 659 N.W.2d 243, 250 (Minn. 2003) (concluding that actual authority rests upon "mutual use of the property by persons generally having joint access or control for most purposes" over property, "so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that others have assumed the risk that one of their number might permit the common area to be searched." (citation omitted)). Stoltz does not discuss this issue in his brief, and we deem the issue to be waived. See State v. Butcher, 563 N.W.2d 776, 780 (Minn. App. 1997), review denied (Minn. Aug. 5, 1997).
2. Stoltz argues there was insufficient evidence for the jury to find him guilty of burglary and theft of a firearm. In considering a sufficiency of the evidence challenge, the reviewing court will take the evidence in the light most favorable to the state and assume that the jury believed the state's witnesses and disbelieved any contradictory evidence. State v. Pippitt, 645 N.W.2d 87, 92 (Minn. 2002). Appellate review is limited to ascertaining whether a jury, giving due regard to the presumption of innocence and to the state's burden of proof beyond a reasonable doubt, could reasonably conclude that the defendant was guilty based on the facts in the record and any legitimate inferences therefrom. State v. Harris, 589 N.W.2d 782, 791 (Minn. 1999).
A conviction based on circumstantial evidence may stand when the evidence viewed as a whole so directly leads to the accused's guilt that it excludes any other reasonable inference. State v. Bias, 419 N.W.2d 480, 484 (Minn. 1988). This standard "still recognizes a jury is in the best position to evaluate the circumstantial evidence . . . [and] determine the credibility and weight given to the testimony of individual witnesses." Id. (quotation omitted)
Stoltz was convicted of violating Minn. Stat. § 609.582, subd. 1(b) (2002), which provides that a person is guilty of burglary if the person "enters a building without consent and with intent to commit a crime, or enters without consent and commits a crime while in the building" and possesses a dangerous weapon "when entering or at any time while in the building." Although the record contains evidence that Stoltz possessed items stolen from the burglary, he contends that there is insufficient evidence that he committed the burglary.
Detective Heck testified that the tire tread pattern on Stoltz's truck matched the tire tread print left at the home during the burglary. Further, when police searched C.M.'s apartment, they found four items that were stolen from the home, including a camera tripod inside Stoltz's bag. Additionally, Stoltz admitted in taped telephone conversations to possessing stolen property, including the bow and arrows and camcorder. The conversations also reveal Stoltz's knowledge of intimate details of the burglary and a plan to blame a third party for the burglary. In a June 7, 2002 telephone conversation Stoltz states "well either way, receiving stolen goods or you know . . . [y]eah, that's what I'm going to tell them. I'm going to tell them that I bought that sh-t from  Gregor," but then he says that the story will not work because Gregor was in jail when the robbery occurred. We conclude the jury could reasonably find from this evidence that Stoltz was the one who committed the burglary. See Harris, 589 N.W.2d at 791.
Stoltz was also convicted of violating Minn. Stat. § 609.52, subds. 2(1), 3(1) (2002), which provide that a person commits theft of a firearm if he "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" and may be sentenced to 20 years "if the property is a firearm." The evidence showed that multiple firearms were stolen, including a .22 caliber pistol recovered following a police pursuit of Stoltz. The jury could reasonably conclude from this evidence that Stoltz took the firearms.
3. Stoltz argues that his sentence must be reduced because the upward durational departure under the career-offender statute was based on judicial findings that the crime was part of a pattern of criminal conduct. The trial court imposed a one-and-a-half times upward durational departure from the presumptive 98-month to a 147-month sentence. The trial court sentenced Stoltz after finding that Stoltz's five prior convictions combined with the current felony constitute a "pattern of criminal conduct" under Minn. Stat. § 609.1095, subd. 4 (2002).
Stoltz argues that under Blakely v. Washington, 124 S. Ct. 2531 (2004), the upward durational departure violates his Sixth Amendment right to a jury determination of all facts essential to the punishment. In State v. Mitchell, 687 N.W.2d 393, 400 (Minn. App. 2004), review granted (Minn. Dec. 22, 2004), this court reviewed the applicability of Blakely to the career-offender statute and determined that an upward durational departure based on judicial findings is a violation of a defendant's Sixth Amendment rights. Therefore, pursuant to Mitchell and this court's interpretation of Blakely, we reverse Stoltz's 147-month sentence and remand to the trial court for resentencing in a manner not inconsistent with this opinion.
Affirmed in part and reversed and remanded in part.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
 The Minnesota Supreme Court has granted review in State v. Mitchell, 687 N.W.2d 393, 400 (Minn. App. 2004), review granted (Minn. Dec. 22, 2004), but stayed additional proceedings in that matter pending a final decision in State v. Henderson, No. A03-1898, review granted (Minn. Nov. 23, 2004). This court will continue to adhere to Mitchell for purposes of consistency, but the trial court is free on remand to stay all proceedings pending a final decision in Henderson.