This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. sec. 480A.08, subd. 3 (1994).

STATE OF MINNESOTA
IN COURT OF APPEALS
C7-95-1716

State of Minnesota,
Respondent,

vs.

Bradley John,
Appellant.

Filed July 9, 1996
Affirmed
Randall, Judge

Redwood County District Court
File No. K6-95-70

Hubert H. Humphrey III, Attorney General, Robert A. Stanich, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent)

Robert D. Tiffany, Redwood County Attorney, Courthouse, P.O. Box 130, Redwood Falls, MN 56283 (for respondent)

John M. Stuart, State Public Defender, Bradford S. Delapena, Assistant Public Defender, 2829 University Avenue, Suite 600, Minneapolis, MN 55414 (for appellant)

Considered and decided by Randall, Presiding Judge, Kalitowski, Judge, and Schultz, Judge.*

U N P U B L I S H E D O P I N I O N

RANDALL, Judge

Appellant challenges his conviction for second-degree burglary, arguing the evidence is insufficient as a matter of law to support his conviction. We affirm.

FACTS

Appellant Bradley John was charged by complaint with burglary in the second degree in violation of Minn. Stat. ' 609.582, subd. 2 (a) (1994), for the burglary of the home of David and Holly Jaeger. Sometime between 7:30 a.m. and 4:00 p.m., on Friday, February 3, 1995, the Jaeger home was burglarized. Evidence at the scene indicated that someone had kicked in the back door to the house and removed several household items, including a typewriter, a police scanner, a calculator, a purse containing $75 in cash and checks, a telescope, a telephone, and two rifles.

An examination of the quonset hut located on the east side of the Jaeger property revealed that it had also been burglarized. The items missing from the quonset hut included an air compressor, string trimmer, gas powered trimmer, console stereo, and a toolbox with tools inside. In addition, several odd-sized wrenches were missing from the work bench. Part of a headlight assembly was discovered on the floor between the open doors of the quonset hut. The assembly did not belong to any of the Jaeger's vehicles. It was later determined that the assembly came from the right front corner of a maroon 1984 to 1986 Dodge or Plymouth minivan. Local law enforcement agencies were given a description of the vehicle.

Examination of the quonset hut revealed a set of tire tracks, along with two sets of footprints. One set of footprints was believed to be made by tennis shoes, while the other set appeared to have been made by cowboy boots. The tire tracks led away from the quonset hut and indicated that the vehicle circled around the Jaeger residence. Neither the footprints nor the tire tracks belonged to the Jaegers.

Five days after the burglary, a law enforcement officer spotted a minivan fitting the description given law enforcement parked in appellant's driveway. The van's right headlight was missing and there was a scrape mark on the right front corner near the headlight. The next day, a search warrant was obtained to search appellant's home and vehicles. Although no evidence linking appellant to the Jaeger burglary was found inside his residence, a search of appellant's minivan produced two rusty, odd-sized wrenches that David Jaeger identified as his. Several weeks later, virtually all of the property taken from the Jaeger home and quonset hut was discovered at an abandoned farm site not far from appellant's home. Included with the property was another of the odd-sized wrenches taken from Jaeger's quonset hut.

Appellant did not testify at his trial, but did present alibi evidence through his father and sister that he and his father had travelled to Iowa on the day of the burglary to do some work on appellant's sister's bathroom. At the close of the State's evidence, defense counsel moved for a judgment of acquittal arguing the State had failed to prove appellant had entered a dwelling as required by Minn. Stat. ' 609.582, subd. 2(a). Specifically, it was argued that, while there was evidence that two perpetrators had entered the quonset hut, appellant was not charged with burglarizing the quonset hut or with aiding and abetting the burglary of a dwelling. Defense counsel argued that the state had failed to prove that appellant had entered the house.

The trial court denied the motion and the case was submitted to the jury. The trial court reasoned that while the evidence against appellant was circumstantial, the jury could find that the person who entered the quonset hut could also be the person who entered the house. The jury was instructed solely on the charge of second-degree burglary of a dwelling. No instruction was given regarding the burglary of the quonset hut, nor was an instruction given on aiding and abetting burglary. Following three hours of deliberations, the jury returned a verdict of guilty.

During sentencing, defense counsel again moved for a judgment of acquittal, arguing the evidence was insufficient to prove that he entered the Jaeger home. The court denied the motion and sentenced appellant to 46 months in prison. This appeal followed.

D E C I S I O N

When considering a claim of insufficiency of the evidence, the reviewing court is limited to ascertaining whether a jury could reasonably conclude the defendant was guilty of the offense charged. State v. Merrill, 274 N.W.2d 99, 111 (Minn. 1978). The reviewing court may not retry the facts, but must view the facts in the light most favorable to the verdict and "assume that the jury believed the State's witnesses and disbelieved any contradictory evidence." Id. The evidence against appellant is circumstantial and as such "merits stricter scrutiny." State v. Bias, 419 N.W.2d 480, 484 (Minn. 1988).

Circumstantial evidence in a criminal case is entitled to as much weight as any other kind of evidence so long as the circumstances proved are consistent with the hypothesis that the accused is guilty and inconsistent with any rational hypothesis except for that of guilt.

State v. Steinbuch, 514 N.W.2d 793, 799 (Minn. 1994) (quoting State v. Pilcher, 472 N.W.2d 327, 335 (Minn. 1991)). Although stricter scrutiny applies to convictions based on circumstantial evidence, it is still recognized that the jury is in the best position to evaluate the circumstantial evidence surrounding a crime, and "its verdict is entitled to due deference." State v. Race, 383 N.W.2d 656, 662 (Minn. 1986).

Here, the evidence is solid that appellant was present during the burglary of the Jaeger property. Appellant's maroon minivan was observed five days after the burglary with a damaged right front headlight assembly. This damage was consistent with the damaged headlight found on the quonset hut floor and the damage to the quonset hut door. More compelling is the fact that a search of the appellant's minivan revealed two "odd-sized" wrenches that David Jaeger identified as his. The other "odd-sized" wrench was found with the property taken from the Jaeger home at the abandoned farm site not far from appellant's residence.

Noting that two sets of footprints were found inside the quonset hut, appellant argues on appeal that the evidence is open to different interpretations as to what occurred at the Jaeger property. One theory has appellant burglarizing both the quonset hut and the Jaeger home, while another has appellant burglarizing only the quonset hut and an accomplice burglarizing the Jaeger residence. At trial, appellant also presented an alibi that he was in Iowa during the burglary. Although a defendant may present a reasonable explanation of what occurred, the jury need not accept that interpretation. State v. Larson, 393 N.W.2d 238, 241-42 (Minn. App. 1986). Here, by its verdict the jury failed to accept appellant's theory of the case and concluded the state established the essential elements of the crime charged. Id. at 242 (jury's verdict will not be disturbed where it is apparent from the verdict that the jury failed to accept the defense theory of the case and determined that the state established the essential elements of the crime). We conclude that, on this record, the jury could reasonably infer that appellant not only entered the quonset hut, but participated in a burglary of the Jaeger home as well. See State v. Bates, 289 Minn. 157, 160-61, 183 N.W.2d 287, 289 (1971) (although two sets of footprints were found in the snow outside a burgled building, and the state did not present any direct evidence that defendant entered the building, enough circumstantial evidence was presented that defendant was present and joined in the burglary).

Although the case against appellant is circumstantial and, as to burglary of the Jaeger residence, is thin in part, we conclude that giving the deference due a jury on disputed fact issues, this record is sufficient to sustain the jury's verdict.

Affirmed.


Footnotes

* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, ' 10.