This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Bruce Wayne Anderson,
Filed September 26, 2006
Affirmed in part,
reversed in part
Toussaint, Chief Judge
Chisago County District Court
File No. K1-04-8
Mike Hatch, Attorney
General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Katherine M. Johnson, Chisago County Attorney, Susan
E. Drabek, Assistant County Attorney, Chisago County Courthouse, 313 North Main
Street, Room 373, Center City, MN 55012 (for respondent)
John M. Stuart, State Public Defender, Steven P.
Russett, Assistant Public Defender, 2221 University Avenue Southeast, Suite
425, Minneapolis, MN 55414 (for appellant)
Considered and decided by Willis,
Presiding Judge; Toussaint, Chief Judge;
and Dietzen, Judge.
U N P U B L I S H E D O P I N I O N
TOUSSAINT, Chief Judge
Appellant Bruce Wayne Anderson challenges his
convictions of attempt to manufacture methamphetamine and possession of stolen
property. Because we conclude that Anderson had no
opportunity to defend against the attempt charge, we reverse that conviction;
because the evidence is sufficient to support the conviction of possessing
stolen property, we affirm that conviction.
On December 29, 2003, police officers with the
Chisago County Sheriff’s Department and the North Branch Police Department
executed a search warrant on property Anderson
owned and rented out. The officers
recovered stolen construction materials and equipment listed on the warrant and
noticed other items, including a large tool box, also believed to be
The next day police confirmed that the other
items had been reported stolen, and they executed another search warrant on the
property to seize the stolen items. When
the officers approached the house, they observed Anderson and Steven Francen
loading equipment into a truck. One of
the items in the truck was the tool box observed the day before. An investigating officer recognized Anderson from previous
contacts. Francen stated that he did not
have identification and told the officers that his name was Scott Wallin. Anderson
refused to identify Francen when asked. During
the investigation, Anderson
was agitated, and he raised a hammer up to his shoulder in “an aggressive manner.” Francen and Anderson were arrested for
possessing stolen property.
Later that day, police went to Anderson’s own residence. They found two people loading equipment used
to manufacture methamphetamine into a truck outside the residence. Police obtained and executed a search warrant;
they discovered a plastic bag containing a white powder in a drawer of a
nightstand next to Anderson’s
bed. A field test indicated that the
powder was cocaine, but a laboratory report later confirmed that the powder was
Anderson was charged with
conspiracy to manufacture methamphetamine, in violation of Minn. Stat. § 152.021,
subds. 2a, 3(a) (2002 & Supp. 2003); possession of stolen property, in
violation of Minn. Stat. §§ 609.53, subd. 1, .52, subd. 3 (2002); and
second-degree controlled-substance crime, in violation of Minn. Stat. § 152.022,
subds. 2(1), 3(a) (2002). The state
later dismissed the second-degree controlled-substance charge, and Anderson waived his right
to a jury trial on the other two charges.
district court found Anderson
guilty of possession of stolen property.
It acquitted him of conspiracy to manufacture methamphetamine but found
him guilty of attempt to manufacture methamphetamine, in violation of Minn.
Stat. § 152.021, subd. 2a(b) (Supp. 2003).
The district court later issued an order finding Anderson guilty of attempt to manufacture
methamphetamine, in violation of Minn. Stat. §§ 152.021, subd. 2a (Supp.
2003), 609.17, subd. 1 (2002).
moved for posttrial relief, arguing that his conviction of attempt to
manufacture methamphetamine was improper because he was not charged with
attempt and attempt is not an included offense of the conspiracy charge. The district court agreed that the conviction
was erroneous but noted that the evidence on which the attempt conviction was
based was the same evidence offered to prove the conspiracy charge and that Anderson challenged that
evidence in his defense against the conspiracy charge. It concluded that it need not set aside the
conviction because Anderson
“was not denied an opportunity to respond and to prepare a defense.” The district court granted Anderson’s request for a dispositional
departure and imposed a 55-month stayed
sentence for the attempt conviction and a 19-month stayed sentence for the
D E C I S I O N
Anderson argues that the district court erred
by convicting him of the uncharged crime of attempt to manufacture
methamphetamine on the ground that attempt is a lesser included offense of
conspiracy to manufacture methamphetamine.
fundamental error to convict a defendant of an uncharged crime that is not an
included offense of a charged crime. State v. Gisege, 561 N.W.2d 152,
1997). But we will reverse a conviction
error only if the error “denied the defendant the
opportunity to prepare an adequate defense.”
In Gisege, the supreme court considered
the validity of a conviction of first-degree assault when the defendant was
charged with attempted first- and second-degree murder. Id. at
155. The supreme court first concluded
that first-degree assault is not an included offense to attempted first- and
second-degree murder. Id.
at 159. But because the defendant requested that the district
court instruct the jury on the assault, the supreme court held that he could
not “claim, let alone show, that the inclusion of the lesser but nonincluded
charge hindered his opportunity to prepare a defense.” Id.
state argues that because Anderson’s attempt conviction is based on the same
evidence offered to prove the conspiracy charge—the bag of ephedrine/pseudoephedrine found in the Anderson’s nightstand—and Anderson knew that
this evidence was going to be offered against him, Anderson was not denied the
opportunity to prepare an adequate defense.
the parties nor the district court mentioned the possibility of a charge of attempt
to manufacture methamphetamine before or during the presentation of state’s
evidence. Anderson was ultimately convicted of attempt
to manufacture methamphetamine under Minn. Stat. § 609.17, which requires
proof that he took a substantial step toward the manufacturing of
methamphetamine. See Minn.
Stat. § 609.17, subd. 1 (2002). But
he did not know he might be convicted of attempt when he cross-examined the
state’s witnesses. We conclude that Anderson was denied the
opportunity to defend against the attempt charge by showing that possession of
ephedrine/pseudoephedrine does not constitute a substantial step toward the
manufacturing of methamphetamine. We
therefore reverse Anderson’s
conviction of the uncharged crime of attempt to manufacture methamphetamine.
also challenges the sufficiency of the evidence supporting his conviction of possession
of stolen property. When an
appellant challenges the sufficiency of the evidence, our review is limited to
a thorough analysis of the record to determine “whether the facts in the record
and the legitimate inferences drawn from them would permit the jury to
reasonably conclude that the defendant was guilty beyond a reasonable
doubt.” Davis v. State, 595
N.W.2d 520, 525 (Minn.
1999) (quotation omitted). We assume
that the fact-finder, who has the exclusive function of judging credibility,
believed the state’s witnesses and disbelieved contrary evidence. See Dale
v. State, 535 N.W.2d 619, 623 (Minn.
1995). We review “criminal bench trials
the same as jury trials when determining whether the evidence is sufficient to
sustain convictions.” Davis,
595 N.W.2d at 525 (quotation omitted).
A person who “receives,
possesses, transfers, buys or conceals any stolen property or property obtained
by robbery, knowing or having reason to know the property was stolen or
obtained by robbery” is guilty of possession of stolen property. Minn.
Stat. § 609.53, subd. 1 (2002). Anderson does not dispute
that he was in possession of stolen property.
He argues instead that the record does not show that he knew or had
reason to know that the property was stolen.
The district court’s finding that
or had reason to know that the property was stolen is based on circumstantial
evidence is entitled to
the same weight as direct evidence, but we review it with stricter
scrutiny. State v. Bauer, 598 N.W.2d 352, 370 (Minn. 1999). The circumstantial evidence must “form a complete chain which, in light of the evidence
as a whole, leads so directly to the guilt of the accused as to exclude, beyond
a reasonable doubt, any reasonable inference” other than guilt. State v. Jones, 516 N.W.2d 545, 549 (Minn.
1994). “The evidence as [a] whole need
not exclude all possibility that the defendant is innocent; it must only make
such a theory seem unreasonable.” State
v. Smith, 619 N.W.2d 766,
770 (Minn. App. 2000), review denied (Minn. Jan. 16, 2001). The fact-finder is in the best position to
evaluate circumstantial evidence, and its
determination is entitled to due deference.
State v. Webb,
440 N.W.2d 426, 430 (Minn.
record shows that police observed Anderson
loading stolen construction equipment into a truck one day after police executed
a search warrant looking for stolen property.
The officer who first observed Anderson
loading the stolen equipment testified that he thought Anderson and Francen
were removing the rest of the stolen items that police did not seize during the
first search. Anderson was evasive when police inquired
about Francen’s identity and became agitated and threatening. Anderson
told police that he did not want to identify his friend because he did not want
to get him in trouble. On this evidence,
the district court concluded that Anderson
knew or had reason to know that the property was stolen.
Anderson argues that the circumstantial evidence relied on by the
district court does not sufficiently support his guilt beyond a reasonable
doubt in light of his testimony. Anderson testified that
he thought the police had removed all of the stolen property during the first
search and that he thought that the equipment he was loading into the truck
belonged to Francen. But Anderson also testified
he knew that Francen had stolen the construction equipment seized during the
first search, and the record shows that he and Francen were loading more
construction equipment into a truck the next day. In light of our deference to the district
court’s credibility determinations, we conclude that the record shows Anderson knew or had
reason to know that the construction equipment was stolen. The evidence is sufficient to support the
Affirmed in part and reversed in part.