may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
David William Olson,
Filed April 27, 1999
Goodhue County District Court
File No. K7971595
Stephen N. Betcher, Goodhue County Attorney, Carol K. Lee, Assistant County Attorney, Goodhue County Courthouse, Room 103, 509 West Fifth Street, Red Wing, MN 55066 (for respondent)
John M. Stuart, State Public Defender, Marie L. Wolf, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)
Considered and decided by Willis, Presiding Judge, Lansing, Judge, and Schumacher, Judge.
Appellant David William Olson was convicted of gross misdemeanor theft in violation of Minn. Stat. § 609.52, subd. 2(1) (1998). Viewing the evidence in the light most favorable to the verdict, we conclude that the facts in the record and legitimate inferences therefrom support Olson's conviction. We affirm.
Olson, a lead video technician at Treasure Island Casino, was charged with theft arising from an incident during a midnight-to-8:00 a.m. shift. During that shift, a casino surveillance team monitored and videotaped Olson and co-worker Charles Thompson after receiving a tip that Olson had been regularly exchanging bills at the casino gift shop. At a court trial, a surveillance inspector testified he observed Olson entering machines that he had no reason to enter, and accessing the bill collector area without signing a logbook. The inspector observed Thompson similarly accessing machines. After the surveillance team confronted Olson and Thompson, Thompson confessed but Olson denied taking any money. Thompson pleaded guilty to gross misdemeanor theft and testified against Olson.
The surveillance team had implemented counting procedures to determine the amount of money missing from the machines. One of the machines Olson was seen accessing, machine #30758, was missing at least $556. When the police arrested and searched Olson, they found $60 or $70 in his wallet and an additional $567 in his pocket.
The district court made a number of specific findings of fact based on viewing the surveillance videotape. With regard to machine #30758, the district court found Olson's actions were consistent with checking the area to see who was there, checking the machine's bill collector to see if there was enough money to bother with, and then checking again to make sure the coast was clear. The district court found that Olson then took something from his tool belt and bent over machine #30758 for approximately 14 seconds. Olson returned the item to his tool belt and then bent over machine #30758 for another ten seconds.
Because the machine door blocked the camera's view of Olson's activities, the videotape does not directly show Olson taking money from machine #30758. In contrast, the videotape directly shows Thompson taking money from other machines. The technique Thompson used involved a two-step procedure. First, the thief uses a tool to twirl currency out of the bill acceptor, allowing the currency to drop in the machine's tray. Second, the thief uses both hands to remove currency from the tray and then folds the currency and places it in his or her pocket.
The district court concluded that Olson took a large sum of money from machine #30758. Giving Olson the benefit of the doubt as to the amount, the district court found beyond a reasonable doubt that he took more than $200, but not more than $500, from machine #30758. The court sentenced Olson to one year in jail, stayed the sentence, placed him on probation for two years, and ordered him to pay restitution and serve ten days in jail. The court subsequently stayed the ten-day jail sentence pending this appeal.
Evidence is sufficient to support a conviction if, given the facts in the record and any legitimate inferences drawn from those facts, a fact-finder could reasonably find that the defendant committed the crime. State v. Wilson, 535 N.W.2d 597, 605 (Minn.1995). This court reviews the evidence in the light most favorable to the verdict and assumes that the fact-finder believed the state's witnesses and disbelieved any evidence to the contrary. State v. Merrill, 274 N.W.2d 99, 111 (Minn.1978).
Where a conviction is based on circumstantial evidence, the verdict 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) (citation omitted). The same standard of review applies in criminal cases whether the case was tried to a jury or to the court. State v. Ibarra, 355 N.W.2d 125, 130 (Minn.1984).
Olson argues that although the evidence may support an aiding and abetting case, it does not support the theft conviction. Olson suggests that a rational hypothesis of the evidence is that, although he may have known Thompson was stealing money and may have even served as a lookout, Olson did not take any money himself. Olson emphasizes that a conviction based on circumstantial evidence merits strict scrutiny.
The more stringent standard for a conviction based on circumstantial evidence recognizes that the fact-finder is in the best position to evaluate the circumstantial evidence of the crime. State v. Bias, 419 N.W.2d 480, 484 (Minn. 1988). "The evidence as a whole need not exclude all possibility that the defendant is innocent, it must only make such a theory seem unreasonable." State v. Anderson, 405 N.W.2d 527, 529 (Minn. App. 1987), review denied (Minn. July 22, 1987) (citation omitted). Justice requires reversal when "careful scrutiny of the record creates grave doubts as to the guilt of a defendant convicted of a criminal offense." State v. Formo, 416 N.W.2d 162, 165 (Minn. App. 1987) (citation omitted).
In this case, the district court issued findings of fact meticulously detailing the circumstantial evidence caught on videotape. After checking to see whether he was being observed, Olson twice bent over machine #30758 in a manner consistent with the two-step technique employed by Thompson. A surveillance inspector testified that Olson had no reason to be at this machine and that he did not sign the machine's logbook as required. When apprehended, Olson had $567 in his pocket, roughly the amount missing from machine #30758. Given these facts, Olson's aiding and abetting theory is unreasonable as it does not explain his activity at machine #30758. Regardless, anyone who aids another may be convicted of the crime itself. Minn. Stat. § 609.05, subd. 1 (1998). Careful scrutiny of the record does not create grave doubts as to Olson's guilt.