This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).




State of Minnesota,



Derrick Simmons,


Filed February 23, 1999


Harten, Judge

Dakota County District Court

File No. K8-97-944

Michael A. Hatch, Attorney General, 14th Floor NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent)

James C. Backstrom, Dakota County Attorney, Phillip D. Prokopowicz, Assistant County Attorney, 1560 West Highway 55, Hastings, MN 55033 (for respondent)

John M. Stuart, State Public Defender, Sharon E. Jacks, Assistant Public Defender, 2829 University Avenue SE, #600, Minneapolis, MN 55414 (for appellant)

Considered and decided by Randall, Presiding Judge, Harten, Judge, and Shumaker, Judge.



A jury found appellant Derrick Simmons guilty of third-degree burglary, Minn. Stat. § 609.582, subd. 3 (1996). Appellant urges reversal claiming that there was insufficient evidence to convict. Appellant also argues that evidence was obtained in violation of the federal bribery statute, 18 U.S.C. § 201(c)(2) (1996), and that this evidence should have been suppressed. Because we find that there was sufficient evidence to convict, and because there is no support for appellant's federal bribery statute claim, we affirm.


Reginald Simmons and Gustry Sailee burglarized a business and later pleaded guilty to burglary. A jury subsequently found appellant Derrick Simmons, a cousin of both Simmons and Sailee, also guilty of the burglary. The case unfolded as follows.

At 12:46 a.m. on April 14, 1997, two Burnsville police officers were on routine patrol. They observed two African American men holding objects and standing approximately 20 yards from a computer business named PSQ Communications (PSQ). One man was approximately 6'2" tall and 260 pounds. The other was about 5'8" tall, 180 pounds, and wore a black, hooded, jacket type sweatshirt. The two men ran and the officers pursued them, first in their squad car, and eventually on foot, but the two men jumped over a six-foot high fence and the officers were unable to follow.

As the officers were returning to their squad car, they were advised of a burglary at PSQ. The officers went back to where the men had been standing and found two computers and a hammer. In the meantime, a homeowner had reported that an African American man wearing a dark sweatshirt jumped over her fence; the homeowner reported that the man was limping.

Later, at about 1:00 a.m., a police sergeant noticed a man wearing dark clothes driving a car near PSQ. The sergeant followed the car, lost sight of it, then sighted it again. When he approached the car, he noticed a man lying in the back seat; the man identified himself as Derrick Simmons (the name of appellant) but he was in fact Reginald Simmons. The two officers who first discovered the burglary did not recognize Simmons as one of the men they had seen standing outside PSQ.

Meanwhile, a clerk at a convenience store testified that two African American men entered the store; one was short and the other tall. Police later identified them as appellant and Sailee. The two officers who first discovered the burglary identified them as the men they had seen outside of PSQ, although they could identify them only by clothing, height, and race. Sailee, the taller man, was wearing all black, limping, and had grass stains and burrs on his clothing. Appellant was wearing a black, hooded, jacket type sweatshirt. Both men were charged with burglary.

At trial, Reginald Simmons testified that he, Sailee, and appellant went to a bar to meet some female friends. The friends did not arrive, so Simmons and Sailee left the bar to burglarize PSQ. When the police saw them, Simmons testified that they ran, got into his car, and then he dropped Sailee off at the bar. It was on his way home that the police pulled him over. Simmons testified that appellant had nothing to do with the burglary, which contradicted his earlier testimony at his guilty plea hearing that appellant's role was to drive the getaway car. When confronted with his conflicting testimony, Simmons testified that he had lied at his guilty plea hearing.

Sailee also testified and confirmed Simmons's story. He said that Reginald brought him back to the bar after the burglary, and that he, appellant, and appellant's girlfriend began to drive home. Appellant and his girlfriend began to fight, and she made the two men get out of her vehicle at the convenience store. Sailee, too, implicated appellant at his guilty plea hearing.

Appellant took the stand in his own defense. He confirmed Simmons' and Sailee's version of the events, although he claimed not to know the last name, phone number, or address of the woman whom he had dated for a year and who had dropped him off at the convenience store. He admitted he was wearing a black, hooded jacket. The jury found appellant guilty of burglary. This appeal followed.


1. Sufficiency of the Evidence

Where there is a challenge to the sufficiency of the evidence, our review on appeal 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). Appellant argues that the state failed to prove beyond a reasonable doubt that he committed burglary. He further claims that the state based its case solely on circumstantial evidence because there was no direct evidence that appellant was at the crime scene.

A conviction based entirely on circumstantial evidence merits stricter scrutiny than convictions based in part on direct evidence. State v. Jones, 516 N.W.2d 545, 549 (Minn. 1994).

[T]he standard of appellate review for circumstantial evidence cases * * * [is] that circumstantial evidence in a criminal case is entitled to as much weight as any other kind of evidence so long as the circumstances proved are consistent with the hypothesis that the accused is guilty and inconsistent with any rational hypothesis except for that of guilt * * * [A] conviction * * * may stand only where the facts and circumstances disclosed by the circumstantial evidence form a complete chain which, in light of the evidence as a whole, leads so directly to the guilt of the accused as to exclude, beyond a reasonable doubt, any reasonable inference other than that of guilt.

Id. (quotations omitted).

Appellant claims that the police could not identify his jacket and therefore they may have misidentified him. The officers saw two men outside of the business, one of whom matched appellant's physical characteristics. The man who matched appellant's characteristics was wearing a black, jacket type sweatshirt, and a police officer testified that appellant was wearing a black, hooded sweatshirt when he was later arrested at the convenience store. Appellant testified that he wore a black hooded jacket that night. Appellant fails to show that the circumstantial evidence is inconsistent with any rational hypothesis except that of his guilt. Taking the evidence in a light most favorable to the state, appellant's argument is unpersuasive.

Appellant also points out that both Reginald Simmons and Gustry Sailee testified at appellant's trial that he was not involved in the burglary. But the jury was free to disbelieve Simmons and Sailee. State v. Occhino, 572 N.W.2d 316, 319 (Minn. App. 1997) ("it is the jury's role to determine the credibility and weight given a witness's testimony"), review denied (Minn. Jan. 28, 1998). Furthermore, the jury may have believed that appellant fabricated his alibi. A jury may question a defendant's credibility and has no obligation to believe a defendant's story. State v. Ostrem, 535 N.W.2d 916, 923 (Minn. 1995).

Once again, considered as a whole and taken in a light most favorable to the state, the evidence does not point to any rational hypothesis except that of guilt. The evidence was sufficient to permit the jury to reach a guilty verdict. We conclude that appellant's insufficient evidence argument is without merit.

2. Claimed Violation of Federal Bribery Statute

Appellant argues in his pro se brief that the testimony of Reginald Simmons and Gustry Sailee, given at their guilty plea hearings, was erroneously admitted into evidence because it was in violation of 18 U.S.C. § 201(c)(2) (Supp. 1998) (the federal bribery statute). Section 201(c) states that:

Whoever * * * (2) directly or indirectly, gives, offers or promises anything of value to any person, for or because of the testimony under oath or affirmation given or to be given by such person as a witness upon a trial, hearing, or other proceeding, before any court * * * shall be fined under this title or imprisoned for not more than two years, or both.

While appellant did not cite the case, his argument stems from United States v. Singleton, 144 F.3d 1343, 1360 (10th Cir. 1998) (reversing district court), rehearing en banc granted, opinion vacated (10th Cir. Jul. 10, 1998), on rehearing en banc __ F.3d __, 1999 WL 6469 (10th Cir. 1999) (affirming district court), in which a Tenth Circuit panel held that the federal government violated section 201(c)(2) when a United States attorney offered leniency to a witness in return for his testimony. Id. at 1351. The panel also held that this violation "tainted the reliability of the evidence" requiring its suppression. Id. at 1360. But when the case was reheard en banc, the Tenth Circuit reversed the panel and found that section 201(c)(2) did not apply to prosecutors acting within the official scope of their office. __ F.3d at ___, 1999 WL 6469, at *1. Thus, the final version of Singleton does not support appellant's claim.

Furthermore, even if the Tenth Circuit had agreed with the first Singleton opinion, Minnesota state courts are not bound to follow that precedent. Minnesota state courts are bound only by decisions of the United States Supreme Court regarding federal statutes. Northpointe Plaza v. City of Rochester, 457 N.W.2d 398, 403 (Minn. App. 1990), aff'd 465 N.W.2d 686 (Minn. Feb. 22, 1991). Appellant cites no Minnesota law to support his claim. We conclude that appellant's argument is without merit.