This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
IN COURT OF APPEALS
In the Matter of the Welfare of: S.M.T.
Hennepin County District Court
File No. 27-JV-06-1542
Leonardo Castro, Chief Fourth District Public Defender, Peter W. Gorman, Assistant Public Defender, 317 2nd Ave. S., Suite 200, Minneapolis, MN 55401 (for appellant S.M.T.)
Lori Swanson, Attorney General, 1800
Michael O. Freeman, Hennepin County Attorney, Thomas A. Weist, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent State of Minnesota)
Considered and decided by Stoneburner, Presiding Judge; Halbrooks, Judge; and Huspeni, Judge.
U N P U B L I S H E D O P I N I O N
Appellant challenges his adjudication as delinquent, after being found guilty of motor vehicle theft under Minn. Stat. § 609.52, subd. 2(17) (2004), claiming that the evidence was insufficient to support guilt beyond a reasonable doubt and that his waiver of a jury trial was inadequate. Because we find that the evidence was sufficient and the waiver of a jury trial adequate, we affirm.
Jaffar Hantoosh was a cashier at Janine’s
Hantoosh testified further that S.M.T. proposed that they drive to meet S.M.T.’s brother to obtain the money for the sale. Hantoosh countered with a suggestion that they meet S.M.T.’s brother at the bank, where Hantoosh still owed money on the car, in order to complete the transaction. Hantoosh closed the store, and the two men entered the car and drove toward the bank. At the first stoplight, S.M.T. asked, “Can I drive the car?” Hantoosh agreed, left the keys in the ignition, got out of the car, and went to the other side so that the two could switch places. S.M.T., however, closed the door before Hantoosh could get in on the passenger side, slid over to the driver’s seat, and drove away.
Hantoosh reported the theft, and on November 23, 2005, the car was identified by police and stopped. S.M.T.’s mother was driving. She stated that her son had brought the car home. A delinquency petition was brought, charging S.M.T. with motor vehicle theft for taking or driving a motor vehicle without the consent of the owner in violation of Minn. Stat. § 609.52, subd. 2(17) (2004). Respondent state’s motion for adult certification was denied; prosecution proceeded as an extended jurisdiction juvenile (EJJ) matter. S.M.T. waived his right to a jury trial, and the case was heard before the court.
At trial when Hantoosh was asked to describe the appearance of the individual who took the car without permission, he replied:
A. The only thing I remember is a big scar in her neck, that’s all I remember.
Q. Okay. All right, do you see this person in the courtroom today?
A. Yes, she’s sitting right there.
Q. Could you be a little more specific about where the person is and what the person is wearing?
A. She is wearing a white shirt and jeans and she’s sitting right there.
[Prosecutor]: May the record reflect that the witness has identified [S.M.T.].
Q. Does this person look any different to you today than the person looked on November 15th?
A. I can’t remember exactly the clothes or something like that, but she looks exactly the same way to me as I saw her that time.
The record contains no further evidence about a scar, nor any comment from either attorney or the court itself regarding the identification of S.M.T. as “she.”
testifying on his own behalf, stated that he had received the car as payment
for his sexual services to a man named John, whom he met on the Internet. S.M.T. also offered, as alibi evidence, his
testimony that he had surgery on the day in question at Northpoint Health and
After completion of testimony, the court found the petition proven beyond a reasonable doubt, stating:
[T]he court does find him guilty beyond a reasonable doubt of Motor Vehicle Theft, a felony occurring on 11-15, 2005. [S.M.T.’s] story is incredulous and I have no belief in anything that he said. I do think Mr. Hantoosh’s testimony was consistent with something that would have happened and could have happened and did happen in this case.
This appeal follows.
D E C I S I O N
Appellant contends that
there was insufficient evidence to support the district court’s conclusion that
the petition was proved beyond a reasonable doubt. “On appeal from a determination that
the elements have been proved, an appellate court is limited to ascertaining
whether, given the facts and legitimate inferences, a factfinder could
reasonably make that determination.” In re Welfare of S.M.J., 556 N.W.2d 4, 6
The trustworthiness of a witness’s
identification must be judged by the opportunity the witness had for an
accurate and deliberate observation while the accused is in the witness’s
presence. State v. Gluff, 285
S.M.T. argues that there was insufficient
evidence to prove that he was the person who stole the car. In support of this argument, he cites a
Minnesota Supreme Court case that held that an “eye witness identification made
upon fleeting or limited observation
at the time of a crime is not reliable and in the absence of corroboration
should not be the basis for conviction.”
State v. Spann, 287 N.W.2d
406, 407-08 (
Hantoosh unequivocally and unhesitatingly identified appellant at trial. S.M.T. challenges the in-court identification,
however, by quoting the testimony of Hantoosh that, “[S]he’s sitting right
there . . . .” Indeed, Hantoosh consistently referred to S.M.T.
as “she” during trial, and S.M.T. is, in fact, a male. And although Hantoosh admits to having limited
English vocabulary, there was an interpreter at trial. There is nothing in the record that suggests
the translator inaccurately translated Hantoosh’s answers or that the process
of translation diminished the accuracy and reliability of the victim’s
testimony. Several factors, however, undermine
S.M.T.’s allegations of insufficient evidence.
Importantly, the district court judge, who was able to hear Hantoosh’s
testimony and look at S.M.T. simultaneously, noted for the record that Hantoosh
had positively identified S.M.T. The
judge was aware both of S.M.T.’s appearance and the fact that S.M.T. had been
identified as “she.” In addition, Hantoosh’s testimony
included the following statement about the buyer: “She looked like a woman.” And, in describing his thoughts as he agreed
to allow S.M.T. to drive the car, Hantoosh stated, “So I—I—well, I thought to
myself, well, what could happen, she’s a lady, what could she do, nothing.” Clearly, the trier of fact is
in a far better position to judge the credibility of a witness’s testimony than
is an appellate court with only a paper record to review. The
resolution of inconsistencies is a function of the trier of fact, “because it
has the opportunity to observe the demeanor of witnesses and weigh their
credibility.” State v. Yang, 627 N.W.2d 666, 672 (Minn. App. 2001) (quoting State v. Lloyd, 345 N.W.2d 240, 245 (
Q. [By Defense Attorney]: The man that was on the stand today saying that you negotiated to buy his truck, that you agreed to take it for a test drive and left without his permission, did that happen?
A. [By S.M.T.] I’ve never even seen him, just rode that one time.
And later in the testimony of S.M.T.:
The Court: Ms. [T.], you have to leave at this time.
Ms. [T]: That’s what I was going to —
The Court: Okay, please step outside.
[S.M.T.]: Why do my mom got to leave?
Ms. [T]: I was just telling him to sit up and talk right into the mike, Your honor, that’s all.
[S.M.T.]: And that’s all she said.
Ms. [T]: And that’s all I said.
The Court: No, no. No, no. You said “shush” when he admitted to taking the truck.
Ms. [T]: No, I—
The Court: That’s what you said.
Ms. [T]: No, I was trying to say “shush, sit up and—
The Court: Please leave.
This exchange was yet another indication of the superior position of the trier of fact in assessing and evaluating the scene being played out before it.
Regarding the statutory requirement that the use of the car be without permission of the owner, Hantoosh testified that S.M.T. knew that he did not have permission to take the vehicle because S.M.T. had made Hantoosh believe he was going to buy it, and they were on their way to the bank to finish the sale. The parties had not exchanged money to complete the sale, nor had Hantoosh transferred title. Therefore, S.M.T. knew that he did not have consent from Hantoosh to take the car.
S.M.T. next argues that the alibi presented
by him shows that the evidence of identity was not sufficient. We disagree.
“Inconsistencies in the state’s case or possibilities of innocence do
not require reversal of a . . . verdict so long as the evidence taken
as a whole makes such theories seem unreasonable.” State
v. Ostrem, 535 N.W.2d 916, 923 (
S.M.T.’s probation officer testified that S.M.T.
was not allowed to leave his home except with prior permission, and that on the
day in question, he was not at his home from 9:06 a.m. until 6:13 p.m. When the probation officer went to S.M.T.’s
home at 3:00 p.m., he was told that S.M.T. was at the doctor’s office. Subsequently, the probation officer received
a note on
Northpoint Health and
S.M.T. testified that he had surgery on November 15 and had to pick up prescriptions at the pharmacy. There is no evidence, however, that the signer of the note was with S.M.T. throughout his surgery, or even before or after the surgery. Also, there is no indication in the record that the person who signed the note was privy to all of S.M.T.’s activities during the day. Nor did S.M.T. produce evidence that his mother was actually with him at Northpoint, or that she could accurately verify his whereabouts from 9:06 a.m. until 6:13 p.m. that day.
The district court specifically found that S.M.T.’s testimony was not credible and that he did not believe anything appellant had said. In contrast, the district court stated that Hantoosh’s testimony was consistent with something that could have happened, and it is what the district court believed did happen in this case. As already noted, the trier of fact is in the best position to judge the credibility of witnesses and evidence, and we will not disturb that credibility determination on appeal. The evidence was sufficient to show guilt beyond a reasonable doubt.
S.M.T. next argues that
his waiver of the fundamental right to a jury trial was inadequate. The right to a jury trial is fundamental and
must be personally waived by the defendant.
State v. Halseth, 653 N.W.2d
782, 786 (
Here, the record reflects that S.M.T. understood the factors involved in waiving his right to a jury trial and stated that he was under no pressure from counsel to waive his rights. He and his counsel had discussed waiving his right to a jury trial, and S.M.T. agreed that they talked at length about the “pros and cons” of having a bench trial, as opposed to a jury trial. S.M.T. also stated that he understood that in a jury trial a panel of 12 jurors would have to unanimously decide the case and that by waiving this right, the judge would be making that decision. Additionally, because S.M.T. has limited reading skills, the court read the text of the written waiver to him. After the judge read the waiver, S.M.T. stated that he had no further questions regarding the waiver and that he understood it. Then he signed the waiver. We conclude that the waiver of a jury trial was valid.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
 S.M.T. also challenges Hantoosh’s testimony that there was a scar on the neck of the person who took his car. The record is silent regarding identification of a scar on S.M.T.’s neck. The district court made no reference to a scar, nor did it refer to a scar in its determination of guilt beyond a reasonable doubt. Because we find other evidence in the record sufficient to support the finding of guilt, we do not consider any testimony regarding a scar in reaching our affirmance.
 For reasons that are not clear from the record, respondent introduced this note into evidence, together with distances and the time to traverse those distances from S.M.T.’s home to the store in which Hantoosh worked, to Northpoint. It may be that respondent wished to establish that it would be possible for S.M.T. to have been in all three places on November 15, 2005. That argument is certainly not made with any clarity on the record, however, and we do not consider it here.
 In a post-argument submission to this court, S.M.T. states that he is not asking for a remand for further findings. To the extent that he earlier appeared to challenge the sufficiency of the trial court’s findings, we note that Minn. R. Juv. Delinq. P. 13.09 does not appear to require the specificity of findings that S.M.T. might have requested.
 At oral argument, S.M.T. conceded that no issue regarding waiver of trial rights is present here. This matter was not tried on stipulated facts. Therefore, Halseth is not applicable.