This opinion will be unpublished and

may not be cited except as provided by

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







State of Minnesota,





Kevin Lee Heitz,



Filed July 18, 2006


Parker, Judge[*]


Carver County District Court

File No. CR-04-165


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


Michael A. Fahey, Carver County Attorney, Peter A.C. Ivy, Assistant County Attorney, Carver County Justice Center, 604 East Fourth Street, Chaska, Minnesota 55318 (for respondent)


Richard L. Swanson, 207 Chestnut Street, Suite 235, P.O. Box 117, Chaska, MN 55318(for appellant)


            Considered and decided by Randall, Presiding Judge; Willis, Judge; and Parker, Judge.

U N P U B L I S H E D   O P I N I O N


            On appeal from his conviction for conspiracy to commit third-degree burglary, Kevin Heitz argues that the evidence is insufficient to sustain his conviction.  Because we conclude that corroborating evidence supports the testimony of his accomplices and the evidence is sufficient to support the jury’s verdict, we affirm.


            This appeal arises from the burglary of a Chaska McDonald’s after the restaurant had closed for the night.  Police officers discerned no evidence of a forced entry and narrowed their investigation to persons who had access to the restaurant’s keys, knew the combination of the safe, and were familiar with the restaurant.  Their investigation led them to question Kimberly Wachs, an employee on leave from the restaurant, and Kevin Heitz, a former employee.  As a result of their investigation, the state charged Kevin Heitz with third-degree burglary and conspiracy to commit third-degree burglary.  At the close of a jury trial, the jury returned a verdict of not guilty on the burglary charge and guilty on the conspiracy charge.  Heitz appeals and asserts that the evidence was insufficient to support the conspiracy conviction.

In a challenge to the sufficiency of the evidence, our role is limited to “ascertaining whether the jury could reasonably find the defendant guilty given the facts in evidence and the legitimate inferences which could be drawn from those facts.”  State v. Miles, 585 N.W.2d 368, 372 (Minn. 1998).  We carefully review the record to determine whether the evidence, when viewed in a light most favorable to the conviction, was sufficient to permit the fact-finder to reach the verdict.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  Recognizing that the jury is in the best position to evaluate the credibility of witnesses, we assume that the jury believed witness testimony that supported the verdict and disbelieved any contradicting evidence.  State v. Henderson, 620 N.W.2d 688, 705 (Minn. 2001); see also State v. Doppler, 590 N.W.2d 627, 635 (Minn. 1999) (“Deciding the credibility of witnesses is generally the exclusive province of the jury.”).  We will not disturb the verdict if the fact-finder, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude that the defendant was guilty.  State v. Harris, 589 N.W.2d 782, 791 (Minn. 1999).

The testimony of an accomplice is insufficient evidence on which to sustain a conviction unless the testimony is corroborated by other evidence that establishes that the defendant committed the offense and does not merely show the commission of the offense.  Minn. Stat. § 634.04 (2004); Turnage v. State, 708 N.W.2d 535, 543 (Minn. 2006).  An accomplice is a person who cooperates, aids, or assists in the commission of a crime and who could have been charged as a principal or accessory.  State v. Smith, 264 Minn. 307, 313, 119 N.W.2d 838, 843-44 (1962).

A defendant is guilty of conspiracy to commit a crime when the state establishes an agreement between two or more persons to commit a crime and an overt act in furtherance of the conspiracy.  State v. Kuhnau, 622 N.W.2d 552, 556 (Minn. 2001); State v. Olkon, 299 N.W.2d 89, 104 (Minn. 1980).  A conspiracy conviction does not require proof of a formal agreement to commit a crime.  State v. Hatfield, 639 N.W.2d 372, 376 (Minn. 2002).  And the state need not establish the existence of an agreement with direct evidence and may instead rely on circumstantial evidence.  State v. Watson, 433 N.W.2d 110, 114-15 (Minn. App. 1988), review denied (Minn. Feb. 10, 1989).

The record contains sufficient evidence to sustain the conspiracy conviction.  On the first element, Wachs testified that she heard Heitz tell someone, “Mickey D’s at midnight.”  This statement indicates that Heitz likely had an agreement with someone to go to McDonald’s at midnight for some purpose.  Although Wachs is an accomplice because she was initially charged with aiding and abetting the burglary, her testimony is corroborated.  Debra Oestreich, another employee, testified that Heitz told her that “he would make McDonald’s pay where it counted.”  From this evidence, the jury could reasonably infer that Heitz intended to take action against McDonald’s and that he planned to do so with another individual.

On the second element, Heitz’s friend, Michael Oldenburg, testified that he drove Heitz to McDonald’s after closing and waited in the car while Heitz grabbed a backpack and left for a few minutes.  While Oldenburg is also an accomplice for purposes of this analysis, his testimony is corroborated by the surveillance footage, which showed that a person wearing a hat and an Eastpack backpack entered the store at 12:44 a.m, remained for a few minutes, and opened the safe to take the money inside.  The video also indicates that the person knew the position of the cameras and repositioned one so that it could not record his actions.  The state offered evidence that Heitz, as a former employee, had access to both the keys and combination of the safe and knew the location of the surveillance cameras and safe.  When the police located Heitz, they found a hat and backpack that apparently resembled those worn by the person in the surveillance footage.  The jury could reasonably infer from this evidence that Heitz engaged in an overt act in furtherance of the conspiracy by going to the McDonald’s, which was burglarized on the night in question.

The record also shows that Heitz, who had been unemployed for months, had several hundred dollars the day after the burglary and that he typically did not have large amounts of cash.  Wachs testified that he gave her two rolls of quarters that match the rolls used at McDonald’s.  This evidence further supports the inference that Heitz participated in a conspiracy to commit third-degree burglary at the McDonald’s.

Viewing the evidence in the light most favorable to the verdict, sufficient evidence exists to sustain the conviction.  Although Wachs’s statements to police contain inconsistencies, these inconsistencies are insufficient to defeat the conviction on appeal because the jury has the responsibility of assessing the credibility of the witnesses.  Similarly, the not-guilty verdict on the third-degree burglary charge against Heitz does not defeat the conspiracy conviction because the jury could reasonably conclude that, even if Heitz did not personally enter the McDonald’s, he entered into an agreement to commit the crime and that someone in the conspiracy committed an overt act in furtherance of the conspiracy.


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