This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).







State of Minnesota,





Kory T. Latraille,




Filed May 22, 2007


Harten, Judge*


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, Owatonna, MN  55060 (for respondent)


John M. Stuart, State Public Defender, Melissa Sheridan, Assistant Public Defender, 1380 Corporate Center Curve, Suite 320, Eagan, MN  55121 (for appellant)


            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


Appellant contends that the evidence was insufficient to support his convictions of burglary and receiving stolen property and asserts that his waiver of a jury trial on the factors used to enhance his sentence was invalid.  Because the evidence was sufficient to allow the jury to reach its verdict and the waiver was valid, we affirm.


            On 2 August 2005, appellant, his girlfriend, her friend, and the friend’s children stopped at the Medford Outlet Center on their way to St. Paul.  After arguing with his girlfriend, appellant walked away from the others, who then went on to St. Paul without him; they did not see or hear any more from him that day or the next.

            On 3 August 2005, at about 9 a.m., a Medford city maintenance worker went to the Medford waste water treatment plant to perform some of his job duties.  He found appellant in the otherwise-vacant plant building about 20 feet from an office.  A cordless phone from the office was in appellant’s pocket.  The maintenance worker asked appellant to return the phone (which he did) and asked what appellant was doing in the building.  Appellant’s answer was unclear.  When appellant left, the maintenance worker called the city clerk and the police.

            Between 9 and 10 a.m., appellant entered a gas station in Medford to buy a beverage and a lottery ticket.  About five minutes later, an employee of the station walked to a rear outside area where used tires were kept.  He saw appellant digging through a red and black duffel bag, which appeared to contain papers.  The employee went to the front of the station but returned to the rear about five minutes later.  Appellant had departed and the red and black bag had been stuffed down between stacks of tires with only its handle visible.

            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 Medford residences.  He confronted appellant with the bag but appellant again disclaimed any knowledge of it.  Appellant told the investigator that his girlfriend had dropped him off that morning and he was in Medford waiting for her to pick him up.

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.   


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 (Minn. 1989).  We must assume that the jury believed the state’s witnesses and disbelieved any evidence to the contrary.  State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).  If the jury, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably have concluded that the defendant was guilty, this court will not disturb its verdict.  Bernhardt v. State, 684 N.W.2d 465, 476-77 (Minn. 2004).

            a.         Burglary.

            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 Minnesota Practice, CRIMJIG 17.11 (2006).  Appellant claims that the evidence is insufficient to show that the waste water treatment plant was not a building open to the public or that he took the plant’s phone.  But the jury heard testimony from the maintenance worker, who testified that (1) there were no activities that would require members of the public to be in the plant; (2) the plant had no “Open/Closed” sign; (3) the plant had no public parking or handicapped-parking areas; (4) there was no retail business or public area in the plant’s vicinity; and, (5) the plant is surrounded by a big fence topped with barbed wire.  The jury also saw photos of the plant that corroborated this description. The maintenance worker further testified that (1) when he arrives at the plant in the morning, he unlocks the gate and leaves it open during the day; (2) he had never seen any member of the public in the plant prior to seeing appellant there with the plant’s phone in his pocket; and (3) appellant seemed confused and gave conflicting accounts of his need for the phone. 

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.

            The 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 Minnesota Practice, CRIMJIG 16.48 (2006). The jury found appellant guilty of one count of receiving stolen property associated with each of the four residences whose address was on the mail in the red and black bag. 

The 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 (Minn. App. 1985).  Six witnesses’ testimony demonstrated that appellant was in the unexplained possession of recently stolen property. 

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.

In 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 to appellant.  See State v. Jones, 516 N.W.2d 545, 549 (Minn. 1994) (providing that circumstantial evidence must form a complete chain that leads so directly to the defendant’s guilt as to exclude any other reasonable explanation); Webb, 440 N.W.2d at 430 (noting that jury is in the best position to evaluate circumstantial evidence).

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 U.S. 296, 124 S. Ct. 2531 (2004), presents a legal question, which we review de novo.  State v. Hagen, 690 N.W.2d 155, 157 (Minn. App. 2004).  Appellant contends that he “did not validly waive his constitutional right to a jury trial on sentencing issues” because he did not explicitly waive the Minn. R. Crim. P. 26.01, subd. 3, rights to testify at trial, to have the prosecution witnesses testify in open court in his presence, to cross-examine them, and to require favorable witnesses to testify. See State v. Halseth, 653 N.W.2d 782, 785-87 (Minn. App. 2002) (requiring explicit waiver of each right).   The supreme court has rejected this argument:

[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 (Minn. 2006).  Thompson upheld a waiver that consisted of only the defendant’s statements that (1) she had no questions about the issue; (2) she wished the court, not a jury, to decide whether there was a factual basis for a sentencing departure; and (3) she understood that she had a right to have a jury make that decision and waived that right.  Id. at 825.

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.