This opinion will be unpublished and

may not be cited except as provided by

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




State of Minnesota,



Joseph Anthony Vasquez,


Filed June 15, 1999


Crippen, Judge

Ramsey County District Court

File No. K198281

Mike Hatch, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant Ramsey County Attorney, Suite 315, 50 Kellogg Boulevard West, St. Paul, MN 55102 (for respondent)

John M. Stuart, State Public Defender, Scott Swanson, Assistant State Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN 55414 (for appellant)

Considered and decided by Anderson, Presiding Judge, Crippen, Judge, and Amundson, Judge.



Appellant challenges his conviction for second-degree burglary, alleging that the trial court erred in failing to suppress evidence obtained as a result of a warrantless search and that the evidence was insufficient to support appellant's conviction. We affirm.


On January 22, 1998, a St. Paul home was burglarized. Footprints in newly fallen snow led from the crime scene to another house, where the homeowner permitted officers to conduct a search. Officers found stolen items but no shoes with soles matching the tracks leading to the house. Soon, two men arrived in a van.

Officers inspected the shoes of the two men and found that they did not match the prints. The men told officers that they had just brought a friend, appellant Joseph Vasquez, to Regions Hospital because he had cut his finger. An officer proceeded to the hospital to question appellant.

At the hospital, the officer looked at the soles of appellant's shoes, thought the soles matched the prints in the snow, did a search incident to arrest, and arrested appellant. Appellant was carrying coins matching those taken from the crime scene.

Before trial, appellant made a motion to suppress the shoes, coins, and his statements. At a Rasmussen hearing, the trial court found that the officer had probable cause to arrest appellant and that the search incident to the arrest was lawful. After a jury trial, appellant was found guilty of second-degree burglary.


1. Sufficiency of Evidence

When considering a challenge to the sufficiency of evidence, an appellate court must view the evidence in the record in the light most favorable to the jury's verdict and must assume that the jury believed the state's witnesses and disbelieved contrary evidence. State v. Robinson, 539 N.W.2d 231, 238 (Minn. 1995). 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).

Appellant contends that the circumstantial evidence submitted by the state is insufficient to support the conviction because there are alternative theories inconsistent with appellant's guilt. Appellant argues that the shoes belonged to another person and that appellant put the shoes on during the rush to get to the hospital. There is evidence suggesting that the shoes belonged to another person. But the assertion that appellant put the shoes on during a rush to the hospital is merely an inference made during closing argument; there is no evidence in the record permitting this view of the facts.

Appellant next argues that it is possible that the coins found on his person were from a casino. But there was no evidence before the jury supporting this assertion.

Appellant has presented no rational alternative hypothesis. The evidence was sufficient to permit the jury to reach a guilty verdict.

2. The Shoes

Appellant alleges that there is no clear proof that he gave consent for the officer to look at the bottom of his shoes and therefore the trial court erred in failing to suppress the evidence obtained as a result of this warrantless search.[1] But the trial court never made a ruling on this issue because it was not raised at the Rasmussen hearing. In fact, appellant affirmatively waived the issue.[2] At the hearing, both appellant and the officer were questioned about events occurring at the hospital, including the search of the shoes. But appellant confined his arguments to questions of whether seizure of the coins occurred before the arrest rather than incidental to it. Because appellant did not raise the issue, we affirm. Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996) (stating that appellate courts generally do not address issues not raised before district court, including issues of constitutional criminal procedure).


[1] Because we need not reach the issue, we make no ruling about whether looking at the soles of shoes is a search requiring a warrant or exception to the warrant requirement.

[2] After the trial court ruled that the coins were admissible, the court asked, "I did not take it from the way the testimony was presented, nor from argument of counsel, that the shoes were an issue. Am I assuming correctly?" Appellant's counsel answered, "That's correct."