This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C2-96-581

State of Minnesota,

Respondent,

vs.

Scott Michael Blahowski,

Appellant.

Filed December 31, 1996

Affirmed

Klaphake, Judge

Ramsey County District Court

File No. K0-95-1827

Hubert H. Humphrey, III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; Susan Gaertner, Ramsey County Attorney, Darrell C. Hill, Assistant Ramsey County Attorney, 50 W. Kellogg Boulevard, Suite 315, St. Paul, MN 55102 (for Respondent)

Daniel D. Reisman, 2300 Nicollet Avenue, Minneapolis, MN 55404 (for Appellant)

Considered and decided by Klaphake, Presiding Judge, Schumacher, Judge, and Amundson, Judge.

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

KLAPHAKE, Judge

Scott M. Blahowski appeals from his conviction for felony theft. Because the evidence was sufficient to support the conviction, we affirm.

FACTS

On May 31, 1995, Blahowski, his juvenile son J.B., and two other juveniles, S.N. and J.W., were at the Menard's Store in Maplewood. A store clerk observed the three juveniles pushing a cart full of expensive items near a rear dock area where goods had been stolen at other times. The clerk called security.

Assistant store manager Lawrence Goplen responded to the call. He observed J.W. and S.N. standing near the cart and then watched as J.W. went to the aisle to talk with J.B. Goplen followed J.B. out of the store and saw him walk up to a pickup truck. Goplen saw J.B. talk with Blahowski awhile before both left in the truck.

Goplen went back inside the store where he observed J.W. wheel the cart out of the store without paying for the items. Goplen stopped J.W. and asked to see his sales receipt. J.W. said his "dad" or "father" had the receipts. Goplen asked where his dad was and J.W. described the truck that Blahowski and J.B. had left in earlier.

J.W., S.N., and the cart were taken to the security room and the police were called. The contents of the cart were emptied and inventoried: a DeWalt circular saw and a Bosch hammer drill were two of the items. The total value of the items taken was $816.08.

The police caught Blahowski and J.B. and escorted them back to Menard's. All four were placed under arrest. The police officers testified that the juveniles admitted they were shoplifting from various stores and were to be paid cash by Blahowski. Blahowski was charged with third-degree felony theft.

A store security videotape focused on the power tool aisle recorded Blahowski putting a DeWalt circular saw and a Bosch hammer drill into a cart. Still photographs of these activities were also introduced at trial.

D E C I S I O N

A conviction based on circumstantial evidence will be sustained on appeal

when the reasonable inferences from such evidence are consistent only with defendant's guilt and inconsistent with any rational hypothesis except that of guilt.

State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988). The jury is in the best position to evaluate the evidence, and its verdict is entitled to deference. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).

A person is guilty of felony theft if he

intentionally and without claim of right takes, uses, transfers, conceals or retains possession of movable property of another without the other's consent and with intent to deprive the owner permanently of possession of the property

and the value of the property stolen is between $500 and $2,500. Minn. Stat. § 609.52, subds. 2(1) and 3(3)(a) (1994). Blahowski was convicted of felony theft as an accomplice. See Minn. Stat. § 609.05, subd. 1 (1994) (person is criminally liable for crime committed by another if person "intentionally aids, advises, hires, counsels, or conspires with or otherwise procures the other to commit the crime."). An accomplice is someone who plays a knowing role in the commission of the crime and takes no steps to thwart its completion. State v. Merrill, 428 N.W.2d 361, 367 (Minn. 1988). The requisite intent may be inferred from a person's presence, companionship, and conduct before and after the offense. Id.

The record indicates the jury viewed still photographs and a security videotape of the tool area of the Menard's store. Assistant store manager Goplen testified that (1) from the videotape he saw Blahowski place a DeWalt circular saw and a Bosch hammer drill into a store cart; (2) he saw J.W. holding that same cart; (3) he saw J.W. talk to J.B.; (4) he saw J.B. leave the store, talk with Blahowski, and leave with him in a truck; (5) he saw J.W. take that same cart out of the store without paying for any of the items; (6) he heard J.W. describe the same truck J.B. and Blahowski were driving as his "father's" truck; and (7) he recovered a DeWalt circular saw and a Bosch hammer drill from the merchandise J.W. took from the store.

While the evidence is circumstantial, it creates an overwhelming inference that Blahowski was an accomplice to the theft. The events described by the assistant store manager do not allow for another rational hypothesis other than a plan to commit the crime, with Blahowski as the driver of the "get-away" vehicle.

The state's motion to strike an affidavit from Blahowski's appendix is granted. The affidavit was not part of the record, and we do not consider it or the issue it raised. See Minn. R. Civ. App. P. 110.01 (record on appeal consists of "[t]he papers filed in the trial court, the exhibits, and the transcript of the proceedings").

Blahowski's alternative motion to stay is denied. Blahowski is free to seek post-conviction relief from the district court.

The judgment of conviction is affirmed, the motion to strike is granted, and the motion to stay is denied.