This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Filed December 12, 2006
Ramsey County District Court
File No. K3-04-3435
Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and
John M. Stuart, State Public Defender, Jodie L. Carlson, Assistant
Considered and decided by Worke, Presiding Judge; Ross, Judge; and Crippen, Judge.[*]
U N P U B L I S H E D O P I N I O N
On appeal from a conviction and sentence for third-degree burglary, appellant argues that (1) the evidence that he surreptitiously entered the office of a convenience store was not sufficient to prove that he entered with the intent to steal, (2) his waiver of his right to a jury trial on the sentencing issue of his career-offender status was invalid because neither the statute nor any rule at the time authorized a sentencing jury, and as a result his sentence must be reduced to the presumptive sentence, and (3) he received ineffective assistance of counsel. We affirm.
D E C I S I O N
Sufficiency of Evidence
Mussehl argues that the evidence was insufficient to sustain a conviction for
third-degree burglary because the state failed to prove that he entered the
office with the intent to steal. When
considering a claim of insufficient evidence, this court’s review is limited to
a careful assessment of the record to determine whether the “[factfinder] could
reasonably find the defendant guilty, given the facts in evidence and the
legitimate inferences which could be drawn from those facts.” State v. Robinson, 604 N.W.2d 355, 365-66
Here, appellant and his female companion entered a convenience store as it opened. The woman made three separate purchases and left the store; she then pulled up to the front of the store in a vehicle and waited there with the motor running. Appellant had not yet left the store and the attendant was unable to locate him. The attendant called 911 when she noticed that the office light, which she had left on, was now off. An officer arrived and pushed the office door open with some resistance. The officer saw appellant sitting on a box, feigning sleep. When the officer ordered appellant out of the office, appellant stood up and reached around to his back and threw a pair of gloves down. Appellant continued to reach towards his waistband that held a pouch containing a silver and black object, which the officer believed could be a weapon. The officer drew his gun and, when appellant again failed to comply with the officer’s demands to show his hands and come out of the office, the officer rushed in and dragged appellant out. The officer later discovered that the black and silver object was a small crowbar. The attendant informed the officer that neither the gloves nor the tool had been in the office, and pointed out that the file cabinet had been moved, the drawers had been opened, the VCR had been turned off, and the surveillance tape removed.
Appellant was charged with third-degree burglary, in violation of Minn. Stat. § 609.582, subd. 3 (2004), and possession of burglary tools, in violation of Minn. Stat. § 609.59 (2004). Minn. Stat. § 609.582, subd. 3, states that an individual who
enters a building without consent and with intent to steal or commit any felony or gross misdemeanor while in the building, or enters a building without consent and steals or commits a felony or gross misdemeanor while in the building, either directly or as an accomplice, commits burglary in the third degree . . . .
The district court found that while there was no signage on the door to the office, there was “no question . . . that that office was not open to the public, that that was not an area into which a person could go without the consent of the management.” Further, the district court found that had appellant stumbled into the office, realized it was an office and immediately left, he would not have been charged with burglary. However, appellant was found apparently hiding in the office and did not comply with several orders by an officer to come out of the office. The district court found that “[c]ircumstantial evidence supports the finding that [appellant] entered that office with the intention of finding something to steal, with the intention of stealing something.” Appellant concedes that he entered the office, which was not open to the public. However, appellant argues that in order to be found guilty of burglary, the state had to prove that he had the intent to steal when he entered the office or that he stole or committed another crime after he entered the office. Appellant argues that his conviction is based on circumstantial evidence that fails to “form a complete chain” that leads directly to his guilt.
is entitled to the same weight as direct evidence, but this court reviews it
with stricter scrutiny. State v.
Bauer, 598 N.W.2d 352, 370
Appellant argues that because the statute in effect at the time the crime was committed did not authorize a trial on the issue of career-offender status, and judicial factfinding to support an upward departure is unconstitutional under Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), his sentence must be reduced to the presumptive sentence. Appellant’s argument presents a legal issue, which this court reviews de novo. See State v. Wright, 588 N.W.2d 166, 168 (Minn. App. 1998), review denied (Minn. Feb. 24, 1999).
factfinding to support an upward departure is prohibited by Blakely, but appellant failed
to raise this claim in the district court.
We ordinarily do not decide issues raised for the first time on appeal,
even constitutional questions of criminal procedure. State v. Sorenson, 441 N.W.2d 455, 457 (
also argues the statute in effect at the time the crime was committed did not
authorize a trial on the issue of career-offender status; therefore, his waiver
was illusory and invalid. Appellant’s
argument fails, however, based on the recent decision of the Minnesota Supreme Court
recognizing the inherent
authority of the district court to submit sentencing issues to a jury. State
v. Chauvin, ___ N.W.2d ___ (
Ineffective Assistance of Counsel
pro se supplemental brief, appellant argues that his attorney was not effective
because he failed to introduce evidence that supported his case, refused to ask
appellant’s questions, and refused to mount a particular theory of defense
requested by appellant. Appellant’s
argument fails, however, because
[*] Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.