This opinion will be unpublished and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

C8-96-1069

State of Minnesota,

Respondent,

vs.

Howard Ray Gravening,

Appellant.

Filed December 10, 1996

Affirmed

Harten, Judge

Aitkin County District Court

File No. K3-95-551

Hubert H. Humphrey, III, Attorney General, Julio R. Barron, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota St., St. Paul, MN 55101 (for Respondent)

Bradley C. Rhodes, Aitkin County Attorney, Aitkin County Courthouse--West Annex, 209 Second Street N.W., Aitkin, MN 56431 (for Respondent)

Steven P. Russett, Assistant State Public Defender, 875 Summit Avenue, LEC 304, St. Paul, MN 55105 (for Appellant)

Considered and decided by Crippen, Presiding Judge, Kalitowski, Judge, and Harten, Judge.

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

HARTEN, Judge

Appellant Howard Gravening challenges his conviction for theft of a motor vehicle, arguing that the state did not prove beyond a reasonable doubt that he committed the offense. Because we conclude that the evidence presented at trial was sufficient to support the jury's verdict, we affirm.

FACTS

On September 9, 1995, at approximately 11:30 p.m., two intoxicated men entered the EZ Stop gas station in Aitkin. The station cashier described the individuals as in their late 40s or early 50s, the younger having long gray hair in a ponytail and a gray scraggly beard. Later, at trial, the cashier identified Gravening as the younger individual. After making a purchase, Gravening and his companion left the station and walked back toward downtown.

As the two men were leaving, the cashier noticed that a car had driven into the station's parking area and shortly thereafter he heard the sound of squealing tires. The owner of the car, Mark Hjort, entered the store and asked the cashier if he knew where the "two drunks went" explaining that his car had been stolen. The cashier observed the older man walking toward downtown alone, but no longer saw Gravening. At 11:35 p.m., the cashier called the police and reported the theft.

Aitkin police officer Jon Olson responded to the call. Based on the description of the individuals, Olson thought that the younger man might be Gravening. Olson then drove to a bar in the direction from which the men had approached the gas station. Based on Olson's description, the bartender identified Gravening and his older companion, Craig Meyer. Olson and Deputy Sheriff Daniel Guida went to Meyer's residence and asked him if he had been at the bar and gas station. Meyer said he had been at both places, but did not know the whereabouts of Gravening.

At 11:58 p.m., the police received a call reporting a car in the ditch on County Road 12 about three miles south of Aitkin. Olson and Guida drove to the location of the vehicle and identified the car in the ditch as Hjort's car.

While the officers were at the scene, passer-by Arnold Torgerson stopped and talked with Olson. Torgerson explained that earlier, when he was driving home with his wife, they saw the car in the ditch and stopped. Torgerson's wife saw the interior light of the car illuminate and she said "[t]here's somebody getting out of the car."[1] An individual approached their pickup truck, and Torgerson offered him a ride in the back of the pickup. Torgerson told Olson that the man seemed disoriented and that he directed them to drive around the countryside in a complete circle, returning to the area of the stranded car. Torgerson eventually dropped the man off a few miles south of the car. Although Torgerson could not identify the man, he told Olson that the man had long hair and possibly a beard.

Shortly after midnight, Deputy Sheriff Keith Happke was driving north on County Road 12 toward Aitkin when he received the call that Hjort's car had been found. At about 12:09 a.m., approximately 3 miles south of Hjort's car, Happke saw Gravening run across the road waving his hands. Happke swerved and stopped his car. Happke asked Gravening his name and Gravening responded with slurred speech; Happke also observed that Gravening had difficulty maintaining his balance. Happke waited with Gravening until Deputy Guida arrived. Gravening was then arrested; while enroute to the police station, he said that he had consumed nine beers.

Gravening was charged on four counts, but the parties stipulated that only the counts of theft of a motor vehicle and driving while under the influence of alcohol would be submitted to the jury. The jury returned a verdict finding Gravening guilty on both counts. Subsequently, as per the stipulation, the district court entered judgment against Gravening on all four counts and sentenced him to 17 months, based on the parties' joint recommendation. This appeal followed.

D E C I S I O N

The only issue before us is whether the evidence supports the jury's verdict finding Gravening guilty of motor vehicle theft. Thus, we must determine if, given the facts in the record and any legitimate inferences that can be drawn from those facts, a jury could reasonably find the defendant guilty of the charged offense. State v. Pierson, 530 N.W.2d 784, 787 (Minn. 1995). We must view the evidence in a light most favorable to the jury's verdict and assume that the jury believed the state's witnesses and disbelieved any evidence to the contrary. Id. A guilty verdict will not be disturbed if the jury, giving due regard to the presumption of innocence and to the state's burden of proof beyond a reasonable doubt, could reasonably have found the defendant guilty. Id.

Our consideration of a sufficiency of the evidence challenge warrants stricter scrutiny where the evidence is circumstantial. State v. Bias, 419 N.W.2d 480, 484 (Minn. 1988). Despite this stricter standard of review, however, a jury is in the best position to evaluate circumstantial evidence, and its verdict must be given due deference. State v. Anderson, 379 N.W.2d 70, 75 (Minn. 1985), cert. denied, 476 U.S. 1141 (1986); State v. Orfi, 511 N.W.2d 464, 471 (Minn. App. 1994), review denied (Minn. Mar. 15, 1994).

[A] conviction based on circumstantial evidence will be upheld and such evidence is entitled to as much weight as any other kind of evidence, so long as a detailed review of the record indicates that the reasonable inferences from such evidence are consistent only with the defendant's guilt and inconsistent with any rational hypothesis except that of guilt. Inconsistencies in the state's case or possibilities of innocence do not require reversal of a jury verdict so long as the evidence taken as a whole makes such theories seem unreasonable. Thus, to succeed in a challenge to a verdict based on circumstantial evidence, a convicted person must point to evidence in the record that is consistent with a rational theory other than guilt.

State v. Ostrem, 535 N.W.2d 916, 923 (Minn. 1995) (citations omitted).

Conviction for motor vehicle theft requires that a person intentionally take or drive a motor vehicle without the consent of the owner. Minn. Stat. § 609.52, subd. 2(17) (1994). Gravening argues that the state presented no direct evidence that he took and then drove Hjort's car. Thus, Gravening reasons, the state's proof is based solely on circumstantial evidence that is subject to stricter scrutiny.

Gravening contends that the circumstantial evidence does not exclude the rational hypothesis that someone other than Gravening took Hjort's car. See Ostrem, 535 N.W.2d at 923 (requiring that inferences from circumstantial evidence be consistent with defendant's guilt and "inconsistent with any rational hypothesis except that of guilt"). Gravening argues that the gas station cashier never saw him take the car. Moreover, Gravening asserts that Torgerson never saw him get out of the car in the ditch; Torgerson could not even identify him. Finally, Gravening claims there was a rational explanation for the fact that he was found on County Road 12 because he had friends and relatives in the neighboring town of Glen.

Gravening overlooks the rule in Ostrem that the mere possibility of innocence does not necessitate reversal of a jury's verdict as long as "the evidence taken as a whole makes such theor[y] seem unreasonable." Id. (emphasis added). We believe that the evidence, taken as a whole, was sufficient for the jury to conclude that Gravening stole the car.

First, immediately after Gravening and Meyer left the gas station, Hjort's car was stolen from the parking lot. When the cashier looked out the station window, he saw Meyer walking alone toward downtown; Gravening was nowhere in sight. Second, the Torgersons observed a man fitting Gravening's description near where Hjort's car was found in the ditch. The Torgersons saw the individual either get out of the car or come from its proximity. The Torgersons then gave the individual a ride, letting him off approximately three miles south of the car. Although Torgerson did not positively identify Gravening, it was reasonable for the jury to conclude that the individual was Gravening, based on Torgerson's description of the man. Third, Gravening ran in front of Deputy Happke's car near the spot where Torgerson dropped off the individual. Happke identified Gravening as the only individual on the rural road near Hjort's car.

Considering the cumulative effect and sequence of these events, and the obscure nature of the locations at night, the jury could reasonably infer that Gravening stole Hjort's car. Although Gravening proffers an alternative theory (i.e., someone else took the car), he fails to point to "evidence in the record that is consistent with a rational theory other than guilt" as required by Ostrem. Therefore, viewing the evidence in a light most favorable to the jury's verdict while giving due regard to the presumption of innocence and to the state's burden of proof beyond a reasonable doubt, we conclude that the jury verdict is adequately supported by the evidence.

Affirmed.

[ ]1Gravening's counsel did not object at trial to Torgerson's testimony regarding his wife's statement or her observation of the dome light. Because there was no objection to this testimony, we do not consider appellant's hearsay claim raised for the first time on appeal. See State v. Hamilton, 268 N.W.2d 56, 63 (Minn. 1978) (objections to possibly inadmissible evidence must be made at time such evidence is introduced and where objection is not made, hearsay evidence will be admitted and has probative force).