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,
Edward Gary Kearns,
Filed April 27, 1999
Olmsted County District Court
File No. C3-98-1517
Raymond F. Schmitz, Olmsted County Attorney, Government Center, 151 4th Street SE, Rochester, MN 55904 (for respondent)
John M. Stuart, State Public Defender, Susan K. Maki, Assistant State Public Defender, 2829 University Avenue SE, #600, Minneapolis, MN 55414 (for appellant)
Edward Gary Kearns, 1001 3rd Avenue SE, #2, Rochester, MN 55904 (appellant pro se)
Considered and decided by Peterson, Presiding Judge, Davies, Judge, and Halbrooks, Judge.
Appellant Edward Kearns appeals his conviction of possession of burglary tools in violation of Minn. Stat. § 609.59 (1996). He contends the state presented insufficient evidence to prove he possessed the tools with the intent to use them in a burglary or a theft. Because we find the evidence produced at trial was sufficient to prove Kearns intended to use the tools to commit a burglary or theft, we affirm.
At approximately 2:00 a.m. on July 29, 1997, Brenda MacDonald, a nursing assistant at the Charter House in Rochester, took her regular break. While she was standing outside of the building, she saw Kearns walk toward the doors that lead to the pedestrian subway system. Kearns pulled on the doors and attempted to enter the subway system, but the doors would not open. He then walked to the parking lot where Charter House employees park. He meandered around several cars and attempted to lift the latch on the back door of MacDonald's van. When MacDonald saw Kearns was trying to open her van door, she yelled, "What are you doing? Get out of there. I'm going to run in and call security." Kearns looked at her, put his hands up, and then quickly walked behind the trees and bushes by Methodist Hospital. MacDonald went inside and asked the receptionist to call security.
As Kearns was exiting Methodist Hospital, he was stopped by a Mayo Clinic security guard. The security guard asked Kearns to identify himself and Kearns told him his name was Edward Thompson. When another security guard arrived on the scene and recognized him, Kearns admitted that his name was Edward Kearns.
When Kearns was stopped, he was carrying a variety of tools. He had a benzomatic cutting torch, a propane cylinder, a pry bar, a handsaw with a hacksaw blade, a scribe, hand razor cutters, utility razor blades, and a blue rag. The security guard asked Kearns why he was carrying these tools and Kearns responded that he was going to use them to do some sheetrocking. Kearns told the security guards that he was coming from a friend's house. Kearns did not give the security guards his friend's address or name.
Subsequently, two Rochester police officers arrived at the scene. They questioned Kearns about the use of each tool. Kearns responded that the tools were used for sheetrocking, but could not give a more specific answer regarding their individual use. Kearns was taken into custody and charged with possession of burglary tools in violation of Minn. Stat. § 609.59 (1996) and tampering with a motor vehicle in violation of Minn. Stat. § 609.546, subd. 2 (1996).
A jury trial was held on April 1, 1998. Kearns elected not to testify on his own behalf, but called his girlfriend Tammy Novotne. Novotne testified that approximately one month before Kearns was arrested, he was doing some sheetrocking at the house they rented. She also stated the tools Kearns was using were inadequate to complete the work, and he discussed borrowing a crowbar and some more razor blades from one of his friends. Additionally, she testified that a month before the arrest, they had discussed getting a blow torch to bend some iron into candlestick holders. Novotne did not know who Kearns was planning to borrow the tools from and had never seen the tools Kearns was carrying the night he was arrested. Novotne also did not know where Kearns was at the time of the offense. The jury found Kearns guilty of possession of burglary tools and tampering with a motor vehicle.
On appeal, Kearns contends the evidence presented at trial was insufficient to establish he possessed the tools with the intent of using them to commit a burglary or a theft. Kearns submitted a pro se brief in addition to the brief of his appellate counsel. The state asserts we should not consider Kearns's supplemental brief because he has presented facts in the brief which were not introduced during trial.
In analyzing a challenge to the sufficiency of the evidence, we 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. Harris, 589 N.W.2d 782, 791 (Minn. 1999) (quoting State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989)). We 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).
Kearns argues the evidence produced at trial was not sufficient to prove he intended to use the tools in his possession to commit a burglary or theft. Specifically, he contends the fact that he did not use the tools to attempt to break into the subway system or MacDonald's van raises more than a reasonable doubt as to his intent.
Minn. Stat. § 609.59 provides:
Whoever has in possession any device, explosive, or other instrumentality with intent to use or permit the use of the same to commit burglary or theft may be sentenced to imprisonment for not more than three years or to payment of a fine of not more than $5000, or both.
The intent element of the statute is generally proved "by drawing inferences from the defendant's words and actions in light of the totality of the circumstances." State v. Cooper, 561 N.W.2d 175, 179 (Minn. 1997).
Intent to use burglary tools may be drawn from the character of the objects and from the circumstances surrounding their possession. There is no absolute requirement that the state link the defendant to any past or future burglary. The intent necessary is a general intent to use the tools in the commission of a burglary and not an intent to commit a particular burglary.
State v. Conaway, 319 N.W.2d 35, 41 (Minn. 1982) (citing State v. Valstad, 282 Minn. 301, 309, 165 N.W.2d 19, 24 (1969).
From the character of the tools and the circumstances surrounding Kearns's possession of them, the jury could reasonably have found Kearns intended to use the tools to commit a burglary or theft. Kearns was carrying a crowbar, a hacksaw, two utility knives, razor blades, a benzomatic cutting torch, a propane cylinder for the torch, and a rag. Kearns was carrying the tools in a hospital parking lot at 2:00 in the morning. He was not carrying the tools in a bag, but had them stuffed in his clothing.
The locations Kearns attempted to enter and his behavior when confronted by MacDonald and the security guards are also circumstances from which the jury could reasonably infer Kearns's intent was criminal. Kearns attempted to enter the subway system, which leads to numerous shops and businesses in downtown Rochester. Kearns also meandered around several cars in the parking lot and attempted to open the hatch on MacDonald's van. When MacDonald shouted at Kearns, he hurriedly walked out of the lighted parking lot and into the trees and bushes where it was dark. When stopped by the security guards, Kearns gave a false last name.
Additionally, Kearns was unable to tell the police officer the individual use for any of the tools he was carrying and could not identify the friend from whom he had borrowed the tools or where that friend lived.
Based on all of the evidence in the record, we conclude the jury could reasonably have inferred Kearns intended to use the tools to commit a burglary. They were not required to find Kearns intended to commit a specific burglary. See Valstad, 282 Minn. at 309, 165 N.W.2d at 24 (intent to use tools to commit a burglary was a permissible inference where defendant drove down an alley at 2:30 a.m. with his lights off, attempted to evade the police, and had canvas gloves, flashlights, wrenches, screwdrivers, pry bars, and a sledge hammer in his car).
2. Evidence in Pro Se Brief
Kearns submitted a pro se brief in addition to the brief submitted by his appellate counsel. This brief contains facts and evidence that defense counsel argued in opening and closing statements, but never introduced into evidence.
Because the facts raised in Kearns's pro se brief were not part of the evidence submitted at trial, we will not consider them on appeal. See State v. Maidi, 520 N.W.2d 414, 420-21 (Minn. App. 1994) (striking appellant's pro se supplemental brief where appellant who chose not to testify at trial attempted to set forth facts outside the record in his pro se brief), aff'd, 537 N.W.2d 280 (Minn. 1995); see also Thiele v. Stich, 425 N.W.2d 580, 583 (Minn. 1988) (holding appellate courts generally "may not consider matters not produced and received in evidence below.").