may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Ervin Tarnell Thomas,
Filed July 1, 1997
Hennepin County District Court
File No. 95070443
Hubert H. Humphrey, III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for Respondent)
Michael O. Freeman, Hennepin County Attorney, Michael Richardson, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for Respondent)
John M. Stuart, State Public Defender, Evan W. Jones, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for Appellant)
Considered and decided by Norton, Presiding Judge, Peterson, Judge, and Amundson, Judge.
Ervin Thomas challenges the sufficiency of the evidence to support a first-degree burglary conviction. We affirm.
Shortly after 7:00 p.m. on August 12, 1995, M.H. heard a cutting noise and saw a man entering her apartment through a window. M.H. ran upstairs to the apartment where her caretakers, J.F. and C.F., lived. C.F. called police.
Minneapolis police officer Terri Wieland arrived a few minutes later. Wieland testified that she waited in the apartment building directly in front of M.H.'s apartment door until officer Joey Lash arrived to assist at the scene. After Lash arrived and stationed himself outside the apartment building, Wieland entered M.H.'s apartment. Wieland and Lash testified that they saw a man trying to climb out a window. When Lash identified himself as a police officer, the man went back into M.H.'s apartment and then ran out of the apartment into a hallway.
The intruder ran out of the apartment building, and police officers pursued him on foot. Wieland saw the intruder go into a parking lot and climb over a fence. Wieland testified that she lost sight of the intruder for about two or three minutes and then saw a man, who fit the intruder's physical description, crouched down near a building located at 727 East 14th Street. When the man stood up, Wieland got a better view of him and recognized him as the intruder. She testified that she recognized the intruder
by his pants and shoes, by his appearance, his size, his build, and he also had in his hand, as he stood up, the shirt that he was wearing when I first gave pursuit. He now had on a dark blue and black leather looking jacket. * * * [H]e ran, and as he ran he dropped the shirt.
Wieland observed that the back of the jacket the intruder was wearing had the letters "O, D, E, and Z" written in white across the top and an "XXL in the center of a large circle." Wieland saw the intruder run around the corner where Kenny's Market is located and arrested him there about two minutes later. When the intruder was arrested, he was wearing a leather jacket with "CODE ZERO XXL" written on the back.
At trial, Lash identified appellant Ervin Tarnell Thomas as the man he saw trying to climb out the window. Wieland identified Thomas as the man she saw in M.H.'s apartment. J.F. identified Thomas as the man who ran out of M.H.'s apartment into the building hallway.
Later the same evening, police discovered that a window screen had been cut at a townhouse located at 727 East 14th Street. C.W., who lived in the townhouse, testified that the screen was not ripped when she looked at it earlier in the day and that a blue and black jacket with "CODE ZERO XXL" written in white letters on the back was missing from her bedroom closet. The jacket Thomas was wearing when arrested was kept by police in a sealed plastic bag until sometime in September. Sergeant Patrick Novack testified that as a result of being stored in the plastic bag, the jacket became very moldy and began to smell bad. Novack presented the jacket to C.W. for identification in mid-September. C.W. testified that despite the jacket's condition, she was certain it was the jacket that had been stolen from her closet. She based her identification on the jacket having a lot of clothing lint on the inside and in the pocket and on the white sleeves appearing dirty.
A jury found Thomas guilty of committing burglaries at M.H.'s apartment and C.W.'s townhouse.
D E C I S I O N
Thomas argues that the evidence was insufficient to support his conviction for committing the burglary at C.W.'s townhouse. When the sufficiency of the evidence is challenged, this court must review
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). This court 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). 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 other than guilt.
State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).
Minn. Stat. § 609.582, subd. 1 (Supp. 1995) provides:
Whoever enters a building without consent and with intent to commit a crime, or enters a building without consent and commits a crime while in the building, commits burglary in the first degree * * * if:
(a) the building is a dwelling and another person, not an accomplice, is present in it when the burglar enters or at any time while the burglar is in the building[.]
Relying on State v. Scharmer, 501 N.W.2d 620 (1993), Thomas argues that the state presented insufficient evidence to prove that the jacket he was wearing when arrested was the jacket that had been stolen from C.W. or that he was ever in C.W.'s townhouse. In Scharmer, none of the physical evidence presented by the state was linked to Scharmer, and no one could positively identify him as one of two men seen leaving the building that had been robbed. Id. at 620-22. The only evidence linking Scharmer to the robbery was that a police dog had tracked him to a nearby grain elevator. Id. at 622. The court held that dog tracking evidence "should be used only to corroborate other evidence and is not sufficient standing alone to support a conviction." Id. (quoting McDuffie v. State, 482 N.W.2d 234, 237 (Minn. App. 1992), review denied (Minn. Apr. 13, 1992)).
The evidence presented by the state in this case was much stronger than the evidence in Scharmer. Three witnesses positively identified Thomas as the man who committed the burglary at M.H.'s apartment. Police lost sight of Thomas briefly after he fled from M.H.'s apartment. About two or three minutes after losing sight of him, Wieland found him crouched down near the building in which C.W.'s townhouse was located. He was wearing a dark blue and black, leather-like jacket and carrying the shirt he had been wearing when he left M.H.'s apartment. Wieland observed that the back of the jacket Thomas was wearing had the letters "O, D, E, and Z" written in white across the top and an "XXL in the center of a large circle." Thomas attempted to flee, but Wieland saw him run around the corner where Kenny's Market is located and arrested him there about two minutes later. When Thomas was arrested, he was wearing a leather jacket with "CODE ZERO XXL" written on the back. Later the same evening, police discovered that a window screen had been cut at C.W.'s townhouse. C.W. testified that the screen was not ripped when she looked at it earlier in the day. C.W. also positively identified the jacket Thomas was wearing when he was arrested as the jacket that was missing from her closet. Viewing the evidence in the light most favorable to the conviction, the only reasonable inference was that Thomas entered C.W.'s townhouse and stole her jacket. See State v. Blais, 379 N.W.2d 236, 237 (Minn. App. 1985)(evidence that police found defendant hiding in bushes near burglarized animal hospital, that officer saw two men running towards building exit but only one man running away from building, that defendant took evasive action when officer found him, that tray containing screwdriver, tin snips, and a tire iron was found near door from which suspect had exited, and that the sole of one of defendant's boots contained a piece of glass that could have come from animal hospital's broken window was sufficient to support burglary conviction), review denied (Minn. Feb. 14, 1986).
Thomas also contends that the two offenses should have been tried separately. The state argues that this court should not address this issue because Thomas does not support his position with argument or authority. Because this is a criminal case, we will address the merits of the issue. See State v. Williams, 525 N.W.2d 538, 544 (Minn. 1994) (explaining appellate court's responsibility to decide criminal cases in accordance with the law despite lack of supporting argument or authority).
In determining whether to grant a request for severance of offenses for trial, the court must
determine whether the offenses arose from a single behavioral incident and, if so, whether severance was nonetheless needed to promote a fair determination of defendant's guilt or innocence of each offense.
State v. White, 292 N.W.2d 16, 18 (Minn. 1980).
Here, because both burglaries were committed within several minutes of each other as part of a continuous course of conduct and because the record indicates that the second burglary was committed at least in part to avoid being arrested for committing the first burglary, the district court properly concluded that both offenses arose from a single behavioral incident. Also, the same evidence was necessary to prove both charges. The description of events that occurred while police pursued Thomas after he fled from M.H.'s apartment was necessary to explain why Wieland concluded that the man she arrested had committed the burglary at M.H.'s apartment. That same evidence was relevant to the second offense in that it suggested a motive for Thomas to commit the burglary at C.W.'s townhouse (to facilitate his escape from police). The trial court properly denied Thomas's motion to sever the charges for trial. See State v. Dukas, 544 N.W.2d 13, 20 (Minn. 1996) (when defendant committed a felony-murder and an aggravated robbery against two different victims within a few minutes of each other, proximity was within one block, and each crime was motivated by the objective of obtaining money through robbery, trial court properly denied motion to sever offenses for trial); White, 292 N.W.2d at 18 (when the traffic offenses and assault and disorderly conduct offenses resulted from a continuous course of conduct occurring within about 10 or 15 minutes and latter offenses were committed in part to avoid having to face responsibility for traffic offenses, trial court properly denied motion to sever offenses for trial); see also Minn. R. Crim. P. 17.03, subd. 3(1)(a) (court shall sever offenses for trial if offenses are not related).