This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. ß 480A.08, subd. 3 (2004).






State of Minnesota,





Markell Terrell Ross,



Filed June 13, 2006


Shumaker, Judge


Hennepin County District Court

File No. 04064176


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


Amy Klobuchar, Hennepin County Attorney, Thomas A. Weist, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)


John M. Stuart, State Public Defender, Susan Andrews, Assistant Public Defender, 2221 University Avenue S.E., Suite 425, Minneapolis, MN 55414 (for appellant)


††††††††††† Considered and decided by Shumaker, Presiding Judge; Wright, Judge; and Ross, Judge.


U N P U B L I S H E D†† O P I N I O N



Appellant challenges his convictions of second-degree burglary and attempted second-degree burglary, arguing that the evidence was insufficient to support his convictions.† Because we find no error, we affirm.

After a bench trial, the district court found appellant Markell Terrell Ross guilty of the burglary of a home in Minnetonka and the attempted burglary of a home in Hopkins on September 22, 2004.† Ross contends that the evidence was insufficient to convict him of either crime.

Between 11:00 and 11:20 a.m., two men working on the outside of a house in Minnetonka saw two males walking east along an adjacent street.† About 20 minutes later, the men saw the same males walking west and across the yard of a neighbor.† One male was now pulling a suitcase and the other was wearing a knapsack.

The neighbor arrived home at 12:20 p.m. and found that her house had been broken into and ransacked. †Several items were missing, including a green suitcase, a purse, a computer, walkie-talkies, a camera, a camcorder, CD-ROMs, and coins and currency.

At approximately 12:40 p.m., a Hopkins resident arrived home and saw a male standing in the bushes in her front yard.† As she drove into her driveway, the male moved deeper into the bushes.† She got out of the car and asked the male what he was doing and he replied that he was looking for Rick.† Another male came from behind her and joined the first male.† She watched both leave and get into a red Suburban vehicle.† Although nothing was missing from her home, the Hopkins resident noted that the side door to the garage, where one of the males had been, was opened and there were muddy footprints in the garage.† She dialed 911.

A short time later, a Hopkins police officer saw a red Suburban matching the description that the Hopkins resident had given, and he attempted to stop it.† The driver did not stop, and the officer gave chase, eventually succeeding in getting the vehicle to stop.† There were two males in the Suburban, along with all of the property that had been taken from the Minnetonka home.† In addition to that property, the vehicle contained a screwdriver that expert testimony showed could have been used to pry open the door of the Minnetonka home.

Before the Hopkins incident, a Minnetonka police detective had seen a red Suburban vehicle make a U-turn in the area of the Minnetonka burglary.† He was later able to identify Ross as the driver.† At trial, the Hopkins resident was able to identify Ross as one of the males on her property.† Additionally, castings of the muddy footprints in the Hopkins garage matched the tread pattern on Rossís shoes.


††††††††††† In considering a claim of insufficient evidence, this courtís review is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, is sufficient to allow the fact-finder to reach the verdict that it did.† State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).† The reviewing court must assume the fact-finder believed the stateís witnesses and disbelieved any evidence to the contrary.† State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).†

††††††††††† When a conviction is based on circumstantial evidence, the standard for the sufficiency of the evidence warrants particular scrutiny.† State v. Bolstad, 686 N.W.2d 531, 539 (Minn. 2004).† A conviction is supported by circumstantial evidence when, under the totality of the circumstances, the evidence excludes all reasonable inferences except guilt of the defendant.† State v. Olhausen, 681 N.W.2d 21, 26 (Minn. 2004).†

The totality of the circumstances excludes all reasonable inferences except that of Rossís guilt of the crimes of which he was convicted.† Although one of the men who saw the two males in Minnetonka apparently did not accurately assess their height differential, this discrepancy was minor.† A police detective saw Ross in Minnetonka in the general area of the burglary in a red Suburban. †Ross was later found in that vehicle with all the property taken from the burglary.

The Hopkins resident identified Ross as being one of the men on her property when she arrived home and the muddy footprints matched Rossís shoe-tread pattern.† There was also located in the red Suburban a screwdriver that could have been used to pry open the door of the burglarized Minnetonka home. These facts, coupled with the fact that the driver of the Suburban in Hopkins, Rossís companion, attempted to flee the police officer, lead ineluctably to the conclusion beyond a reasonable doubt that Ross participated in the burglary of the Minnetonka home and the attempted burglary of the Hopkins home.

Rossís contention that there are other reasonable explanations for the circumstantial evidence is without merit.† His argument that the evidence at best showed that he was in possession of stolen goods ignores all the other evidence linking him to the two crimes.† He was in the areas where the crimes were committed at the times of the crimes; he possessed property taken in the completed burglary; and his shoe tread matched the shoe tread in the place of the attempted burglary.† Nothing Ross offers negates or sufficiently diminishes the strong circumstantial evidence against him.

††††††††††† Affirmed.