This opinion will be unpublished and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

C6-96-1135

State of Minnesota,

Respondent,

vs.

Erin Will Tuttle,

Appellant.

Filed March 4, 1997

Affirmed.

Crippen, Judge

Otter Tail County District Court

File No. K6951642

Hubert H. Humphrey, III, State Attorney General, Robert A. Stanich, Paul R. Kempainen, Assistant Attorneys General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Waldemar B. Senyk, Otter Tail County Attorney, Otter Tail County Courthouse, 121 Junius Avenue, Fergus Falls, MN 56537 (for Respondent)

John M. Stuart, State Public Defender, Susan K. Maki, Assistant State Public Defender, Suite 600, 2829 University Avenue S.E., Minneapolis, MN 55414 (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

CRIPPEN, Judge

Following his conviction for third-degree burglary, appellant contends (a) that the evidence was insufficient to show that he had an intent to steal and (b) that the trial court abused its discretion by allowing testimony of a police officer that he had previous "dealings" with appellant. We affirm.

FACTS

Appellant was convicted of burglary in the third degree based on the following evidence: (a) while responding to a tripped burglar alarm, police apprehended appellant and a companion walking out of a closed flour mill, (b) someone had damaged an exterior window, thereby indicating forced entry, (c) several other windows had been damaged or shattered, and (d) based on a piece of paper caught in a drawer, someone apparently had opened a filing cabinet in an office.

Appellant claims that he did not intend to steal anything because (a) he did not take anything from the mill, (b) he believed the mill had been abandoned, (c) he merely intended to explore the mill, (d) he entered the mill in broad daylight, (e) he had no burglary tools, and (f) he made no effort to flee when he tripped the alarm.

D E C I S I O N

1.

Under a challenge to the sufficiency of the evidence for a jury's verdict of guilty, we will affirm if the decision represents a reasonable conclusion, viewing the evidence in a light most favorable to the state, assuming the jury believed the state's witnesses and disbelieved contrary evidence, but giving due regard to the state's burden of proving appellant's guilt beyond a reasonable doubt. State v. Merrill, 274 N.W.2d 99, 111 (Minn. 1978).

Where a conviction is based on circumstantial evidence, we will sustain the verdict 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). Because juries normally are in the best position to evaluate circumstantial evidence, their verdicts receive due deference. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).

The issue of intent to steal was a question for the jury, and it had adequate evidence to conclude that appellant entered the mill with the intent to steal. A jury may infer an intent to steal from evidence of a forcible entry. State v. Crosby, 277 Minn. 22, 25-26, 151 N.W.2d 297, 300 (1967) (finding that a party intended to take something where evidence showed that he had forced a padlocked door open). The damage to the exterior window suggests that appellant forcibly entered the mill, thereby raising an inference of an intent to steal.

Furthermore, an act of hostility upon entering a building also may provide circumstantial evidence of an intent to steal. State v. Roberts, 350 N.W.2d 448, 451 (Minn. App. 1984). The testimony of a mill employee that he found three newly broken windows after appellant had entered the mill also supports an inference of an intent to steal.

In addition, a jury may infer an intent to steal from evidence that a defendant searched a closed compartment after an unauthorized entry. See State v. Witte, 280 Minn. 116, 118-19, 158 N.W.2d 266, 268 (1968) (concluding that sufficient evidence existed to justify an inference of intent to steal where defendant made an unauthorized entry into building and ransacked the owner's desk, file cabinet, and two brief cases). The record suggests that appellant searched the mill office for valuables because a mill employee and the police found a piece of paper caught in the top drawer of a file cabinet. Evidence that appellant opened a file cabinet drawer after a forced entry contributes to an inference of an intent to steal.

Finally, the absence of theft is not compelling evidence of a lack of an intent to steal. Where direct proof of an unauthorized entry exists, the fact that a defendant did not take anything does not destroy the reasonableness of an inference that the defendant possessed an intent to commit a theft at the time of entry. Id. at 118, 158 N.W.2d at 268. Although appellant did not take anything from the mill, a jury reasonably could find that appellant intended to steal but that he tripped the burglar alarm before he could find anything worth taking.

Viewing the evidence in a light most favorable to the conviction, the record contains sufficient circumstantial evidence for a jury to infer that appellant entered the mill with the intent to steal.

2.

"Rulings on evidentiary matters rest within the sound discretion of the trial court." Caldwell v. State, 347 N.W.2d 824, 826 (Minn. App. 1984). On appeal, the party claiming error in the trial court's reception of evidence has the burden of showing both the error and the prejudice resulting from the error, and a reversal is warranted only when the error substantially influences the jury to convict. State v. Darveaux, 318 N.W.2d 44, 48 (Minn. 1982).

Appellant contends that the trial court violated his right to a fair trial by admitting a police officer's testimony that he had previous "dealings" with appellant and his companion. According to the record, the officer volunteered that he "immediately recognized them as individuals I've had dealings with in the past."

The officer's comment does not constitute reversible error. The testimony was not solicited, and an appellate court will reverse a conviction more readily where the prosecutor intentionally elicits inadmissible evidence of other crimes. State v. Haglund, 267 N.W.2d 503, 506 (Minn. 1978) (finding no reversible error where a prosecutor, while questioning a deputy about an incriminating note written by the defendant, unintentionally elicited testimony from the deputy that the defendant had expressed his reluctance to go to prison "again"). Furthermore, it is significant that the testimony dealt with identification of appellant. See Minn. R. Evid. 404(b) (permitting the proof of another crime, wrong, or act to show identity in some circumstances). Because the prosecutor did not intentionally elicit the officer's testimony about his "dealings" with appellant and the officer volunteered the testimony in the context of identifying appellant, it was not error.

Moreover, appellant has not demonstrated prejudice because the challenged comment caused so little impact on his conviction. See State v. Collins, 276 Minn. 459, 471-72, 150 N.W.2d 850, 859 (1967) (holding that testimony that a prosecution witness had seen the defendant at a courthouse did not prejudice him to the extent of denying him a fair trial), cert. denied, 390 U.S. 960 (1968); State v. Alexander, 398 N.W.2d 24, 27 (Minn. App. 1986) (holding that a federal agent's testimony with respect to a "prior investigation," rather than a prior conviction, was not sufficiently explicit to render its admission prejudicial as evidence of other crimes when it could have played no significant role in persuading jury to convict defendant), review denied (Minn. Feb. 13, 1987). The trial court did not abuse its discretion by admitting the officer's testimony.

Affirmed.