This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1994).

STATE OF MINNESOTA

IN COURT OF APPEALS

C4-95-2242

State of Minnesota,

Respondent,

vs.

Andrew John Wrobleski,

Appellant.

Filed October 1,1996

Affirmed

Peterson, Judge

Yellow Medicine County District Court

File No. K29530

Hubert H. Humphrey, III, Attorney General, William F. Klump, Jr., Assistant Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for Respondent)

Thomas G. Kramer, Yellow Medicine County Attorney, 132 Eighth Avenue, P.O. Box 163, Granite Falls, MN 56241 (for Respondent)

Michael C. Davis, Special Assistant State Public Defender, 875 Summit Avenue, LEC 304, St. Paul, MN 55105 (for Appellant)

Considered and decided by Klaphake, Presiding Judge, Peterson, Judge, and Thoreen, Judge.[*]

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

PETERSON, Judge

On appeal from a judgment of conviction, appellant Andrew John Wrobleski argues that the district court erred by permitting the jury to consider three separate conspiracy counts. We affirm.

FACTS

On February 6, 1995, 73-year-old M. D. drove to the Firefly Creek Casino at about 9:00 p.m. to play the quarter slot machines. Appellant, his cousin Matthew Wrobleski, and Carl Williams, arrived at the casino at about 12:51 a.m. on February 7, 1995. Matthew Wrobleski walked up to M.D. at the cashier's window and looked inside her purse.[1]

At the 2:00 a.m. closing time, appellant and his two companions left the casino and waited in the parking lot for M.D. to leave. When she left, they followed her.

As M.D. was driving home she noticed two vehicles following her. One of the vehicles passed her. The other car continued following her until she reached her house. As M.D. pulled into her garage, she heard a car on the gravel road in front of her home. She looked in her rear-view mirror and saw that the car was an older model, light-colored vehicle with a badly-damaged driver's side door. Moments later, M.D. saw a hand open her car door and heard a man's voice say, "Give me your purse." Before she could react, the man demanded her purse again, reached in and grabbed it from the passenger's seat, then hit M.D. in the right temple with his fist, and ran out of the garage. M.D. heard a car door close and saw the car she observed earlier leaving the scene.

M.D. told the police she was unable to get a good look at her assailant, but described him as a white male, in his twenties, about five feet ten inches tall, with brown, wavy hair. A few days later, during a photographic display of possible suspects, M.D. said that appellant's picture looked familiar, but she could not positively identify him. M.D.was able to positively identify the getaway car, which was registered to appellant's father.

Appellant and Matthew Wrobleski were arrested at the Firefly Creek Casino when security personnel recognized them and called the police. Appellant was charged with first-degree aggravated robbery, robbery, first-degree burglary, and a separate conspiracy charge for each offense.[2]

Appellant testified at trial that after leaving the casino, he fell asleep in the back seat of the car and did not wake up until he heard a car door slam and heard Williams yell "Go!". He then saw Williams throw something out of the car window. He denied any involvement in discussions about robbing M.D. and said that he did not participate in the robbery in any way.

Appellant's testimony was contradicted by Williams, who testified that after they left the casino, either appellant or Matthew Wrobleski stated they should mug someone to get some money, that they spotted M.D. and began to follow her, that they followed M.D. to her house where Matthew Wrobleski stopped the car in the middle of the street, that appellant jumped out and ran toward the garage while the car was being turned around, that appellant got back into the car with a large purse and that they split the approximately $200 in cash found in the purse and threw the purse and credit cards out on the highway.

The jury found appellant guilty of all charges against him. The district court imposed two concurrent 58-month terms for the burglary and aggravated robbery convictions. Appellant was not sentenced on the three conspiracy convictions.

D E C I S I O N

When the sufficiency of the evidence is challenged, the appellate court's review

is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in a light most favorable to the conviction, was sufficient to permit the jurors to reach the verdict which they did.

State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). We must assume "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).

We will not disturb the verdict if the jury, acting with due regard for the presumption of innocence and for the necessity of overcoming it by proof beyond a reasonable doubt, could reasonably conclude that a defendant was proven guilty of the offense charged.

State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).

Appellant contends that the district court erred when it denied his motion for acquittal on all counts and submitted three separate conspiracy counts to the jury. He argues that the evidence presented at trial only supports a finding that he and his companions entered into one agreement, an agreement to take M.D.'s purse. Appellant contends that the evidence does not support a finding that there was an agreement to commit burglary or aggravated robbery.

Citing People v. Vail, 227 N.W.2d 535 (Mich. 1975), appellant contends that all of his convictions must be reversed because allowing the jury to consider three conspiracy charges created the possibility that the jury would reach a compromise verdict. In Vail, the trial court denied a motion to dismiss a first-degree murder charge and instructed the jury to consider the charge. Id. at 536. The defendant was found not guilty of first-degree murder but was found guilty of voluntary manslaughter. Id. The Michigan Supreme Court found that the evidence submitted at trial was not sufficient to sustain a conviction on the first-degree murder charge. Id. at 540. The court held that because the jury was permitted to consider a charge unwarranted by the evidence, the voluntary manslaughter conviction must be reversed. Id. at 536, 540. The court explained that

where a jury is permitted consideration of a charge unwarranted by the proofs there is always prejudice because a defendant's chances of acquittal on any valid charge is substantially decreased by the possibility of a compromise verdict. For this reason it is reversible error for a trial judge to refuse a directed verdict of acquittal on any charge where the prosecution has failed to present evidence from which the jury could find all elements of the crime charged.

Id. at 536.

Appellant argues that two of the conspiracy charges were not supported by evidence and, therefore, as in Vail, he was prejudiced when the jury was instructed to consider these charges because his chances of acquittal on the remaining charges were substantially decreased by the possibility of a compromise verdict. We disagree.

Unlike Vail, 227 N.W.2d at 540 where the court found that the evidence was insufficient to support the first-degree murder charge, the evidence here was sufficient to support each conspiracy charge.

The elements of the crime of conspiracy are: (1) an agreement with another to commit a crime; and (2) an overt act in furtherance of the conspiracy.

State v. Olkon, 299 N.W.2d 89, 104 (Minn. 1980), cert. denied, 449 U.S. 1132 (1981).

[A] conspiracy need not be established by direct evidence. It may be inferred from the circumstances. Nor is it necessary to show a formal agreement to commit the crime charged. Where the evidence permits an inference of concert of action to accomplish a given unlawful result, as where several persons commit separate acts which form parts of a connected whole, an inference of conspiracy--that there was concert in both planning and execution--is permissible. The parts or acts done by each must, however, not only tend to show a prior unlawful combination, but negative the idea of lawful undertaking or purpose.

State v. Burns, 215 Minn. 182, 189, 9 N.W.2d 518, 521-22 (1943).

Appellant's argument that there was only one agreement addresses only the evidence of a verbal agreement; it does not address the permissible inferences the jury could draw from other evidence presented at trial. Williams testified that while the three men were in the casino parking lot, someone made a remark about mugging someone. This was evidence of a verbal agreement. But Williams and Matthew Wrobleski both testifed that the three followed M.D. when she left the casino and that Matthew Wrobleski was driving the car. Williams testified that when M.D. pulled into her garage, appellant got out of the car and ran toward the garage. Williams testified that the car was stopped when appellant got out, and that while appellant was out of the car, Matthew Wrobleski turned the car around within a quarter of a block or so and then picked up appellant, who was already on the road. Williams testified that when appellant got back in the car, he had a purse.

Williams's testimony permits the jury to infer a "concert of action to accomplish a given unlawful result." Burns, 215 Minn. at 189, 9 N.W.2d at 521-22. The jury could infer that there was concert in both planning and execution when Matthew Wrobleski stopped the car, appellant got out and ran toward the garage while Matthew Wrobleski turned the car around, and, then, Matthew Wrobleski stopped to pick up appellant. The jury could infer that the separate acts of Matthew Wrobleski and appellant were parts of a connected whole.

Affirmed.

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

[ ]1This event was videotaped by the security camera at the casino. The videotape shows an individual, later identified as Matthew Wrobleski, looking inside the purse of an elderly woman, later identified as M.D.

[ ]2Appellant was also charged with an aiding and abetting count for each offense, however, these charges were dropped before trial.