This opinion will be unpublished and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
Kory T. Latraille,
Filed May 22, 2007
Steele County District Court
File No. K1-05-001100
Lori Swanson, Attorney General, Tibor M. Gallo, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Douglas L. Ruth, Steele County Attorney,
303 South Cedar,
John M. Stuart, State Public
Defender, Melissa Sheridan, Assistant Public Defender, 1380 Corporate Center
Considered and decided by Randall, Presiding Judge; Wright, Judge; and Harten, Judge.
U N P U B L I S H E D O P I N I O N
On 2 August 2005, appellant, his
girlfriend, her friend, and the friend’s children stopped at the
On 3 August 2005, at about 9 a.m., a
Between 9 and 10 a.m., appellant
entered a gas station in
Appellant was next seen by a county
sheriff investigator who was responding to a suspicious person call from the
gas station. The investigator found
appellant; appellant identified himself and said that he had done nothing
wrong. When asked about a duffel bag or
pack, appellant said that he had no idea what the investigator meant. The investigator subsequently discovered that
the duffel bag contained papers addressed to four separate
The investigator then visited each residence whose address was on papers in the bag. At one house, a woman recognized the red and black bag as a cooler taken from her hall closet. She also recognized some check blanks and deposit slips as taken from a kitchen drawer; she had not been aware that any of these items was missing.
A woman in another house found among the papers mail addressed to her son; she had put it in a basket in her house and was not aware that it was missing. Her son reported that the faceplate to his compact disc player, which had been with the mail, was also missing.
At a third house, the investigator talked to a woman who recognized some papers that had been in her husband’s truck. The truck had an open window and glove box, and some items had been left on the seat.
At the last house, the investigator presented several pieces of mail to the woman to whom they were addressed. She had not previously seen the mail and said that her mailbox had been empty the day before.
Following trial, a jury convicted appellant of one count of third-degree burglary in connection with the waste water treatment plant and five counts of receiving stolen property, one count for each of the four residences and one count for the plant. After waiving his right to a jury trial on sentence-enhancing factors, appellant was sentenced as a career offender to 40 months’ imprisonment and to four concurrent 90-day terms, and all sentences were executed.
Appellant now challenges the sufficiency of the evidence to sustain his convictions and the validity of his waiver of a jury trial on the factors used to enhance his sentence.
D E C I S I O N
1. Sufficiency of the Evidence.
Appellant claims that the evidence
is insufficient to support his convictions.
In considering a claim of insufficient evidence, we undertake a
painstaking analysis of the record to determine whether the evidence, viewed in
the light most favorable to the conviction, was sufficient to allow the jury to
reach its verdict. State v. Webb, 440 N.W.2d 426, 430 (
The district court instructed the
jury that, in order to convict appellant of third-degree burglary, it had to
find that he entered a building without the consent of the person in lawful
possession of the building or, if the building was open to the general public,
that he entered it after consent to entry had been withdrawn. See 10A
No testimony was offered to refute the maintenance worker’s testimony. From his testimony, the jury could reasonably have found that the plant was not open to the public and that appellant committed third-degree burglary.
b. Receiving Stolen Property.
district court instructed the jury that, in order to convict appellant of
receiving stolen property, it had to find that (1) the property in question was
obtained by theft, or taken without the consent of the owner and with the
intention of depriving the owner permanently of it; (2) the defendant received,
possessed, transferred, or concealed the property; and (3) the defendant knew
the property was obtained by theft. See 10
unexplained possession of recently stolen property is sufficient to support the
conclusion that a defendant knew that the property was stolen. State
v. True, 378 N.W.2d 45, 48 (
The service station employee testified that (1) he saw appellant behind the station going through a red and black duffel bag that appeared to contain papers; (2) when he returned to the area five or ten minutes later, appellant was gone, but the bag was in the middle of some stacks of tires with its handle sticking up; and (3) he left the bag where it was.
The investigator testified that, when he arrived at the station, his attention was directed to a red and black bag, partially visible and stuffed between stacks of tires. He pulled the bag out from the tires and examined the papers inside it. He found that the papers were from four local residences, which he later visited. He further testified that the bag had been in the custody of the sheriff’s department since he found it.
The occupant of the first residence testified that she had spoken to an investigator who came to her home with a soft-sided cooler and some carbon copies of a checkbook with some deposit slips. She testified that she recognized the cooler as belonging to her and that she usually kept it in her hall closet. She also recognized as hers the check blanks and deposit slips with her name and account number that were usually kept in a kitchen drawer. These items were received as trial exhibits.
The occupant of the second residence testified that, on 3 August 2005, she spoke to an investigator who came to her home with a large red bag that contained mail belonging to her son, that she had placed the mail in a basket on top of the refrigerator after retrieving it from the post office box a few days earlier, that she had never seen it anywhere else, and that she had seen appellant walking back and forth in front of her house the previous evening.
The occupant of the third residence testified that the investigator who came to her house had a large bag containing documents with her husband’s name that she believed to have been in her husband’s truck; that among the documents was a birth certificate for one of her children, which her husband had recently obtained from the courthouse; and that she and the investigator looked at the truck and found one window open, the glove compartment open, and some things thrown on the seat.
Finally, the occupant of the fourth residence testified that she checked her mail every evening; that the previous day (2 August), the mailbox had been empty; and that the investigator who came to her house on 3 August had items with her address, such as her paycheck and a water bill, that she normally would have received in the mail.
summary, the testimony showed that the items were recently stolen, and
appellant’s possession of them was unexplained, thus supporting the conclusion
that appellant knew that the items were stolen.
See True, 378 N.W.2d at 48. The evidence is circumstantial, but the
testimony of the six witnesses provides a chain leading from the stolen items
There is no basis to overturn the jury’s verdict.
2. Waiver of Jury Trial.
A waiver of the right to a jury
trial on sentence enhancement factors established by Blakely v. Washington, 542
[The] procedure of determining sentencing enhancement factors is more akin to a bench trial regarding the elements of an offense [governed by Minn. R. Crim. P. 26.01, subd. 1(2)(a)] than to a trial based on stipulated facts [governed by Minn. R. Crim. P. 26.01, subd. 3]. We therefore conclude [the] waiver of [the] right to a jury trial on sentencing enhancement factors is governed by Minn. R. Crim. P. 26.01, subd. 1(2)(a) [providing that a defendant may waive a jury trial personally, in writing or orally on the record in open court, after being advised by the court of the right to trial by jury and after an opportunity to consult with counsel].
State v. Thompson, 720 N.W.2d 820, 827 (
Appellant’s waiver was far more comprehensive. He was questioned by both his attorney and the district court. He agreed with his attorney’s assertions that the state would have to prove beyond a reasonable doubt that he was a career offender, that he could subpoena and examine witnesses, that the district court could receive evidence sufficient to prove that he was a career offender, and that the waiver was his own decision. He agreed with the district court that a jury’s verdict on his career offender status would have to be unanimous and that his criminal record met the legal standard for career offender.
We conclude that the evidence was sufficient to allow the jury to convict appellant and that the district court did not err in finding that appellant had validly waived his right to a jury trial on sentence enhancement factors.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.