This opinion will be unpublished and
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,
Paul Anthony Venson,
Filed October 19, 1999
Affirmed in part, reversed in part
Goodhue County District Court
File No. K7-98-344
Mike Hatch, Attorney General, James B. Early, Assistant Attorney General, Rebecca M. Rhoda, Certified Student Attorney, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Stephen N. Betcher, Goodhue County Attorney, Courthouse, Room 103, 509 West Fifth Street, Red Wing, MN 55066 (for respondent)
John M. Stuart, State Public Defender, Charlann Winking, Assistant Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN 55414 (for appellant)
Considered and decided by Klaphake, Presiding Judge, Anderson, Judge, and Norton, Judge.[*]
U N P U B L I S H E D O P I N I O N
A jury convicted appellant of kidnapping, simple robbery, felony theft, aiding and abetting felony theft, and false imprisonment. Appellant argues that the convictions must be reversed because the circumstantial evidence failed to exclude other reasonable hypotheses consistent with his innocence and that the false imprisonment and theft convictions should be vacated as lesser-included offenses. Because the circumstantial evidence is sufficient to support appellant’s convictions, but the false imprisonment and theft convictions are for lesser-included offenses and must be vacated, we affirm in part and reverse in part.
At the trial, Ruth Petersen testified that, while she was working alone at a convenience store gas station, on the morning of March 8, 1998, a black couple came into the store. They both had matching parkas and each had the hood tied around their head. The male purchased a cup of coffee and proceeded to the back of the store to use the pay phone. Petersen recognized the female as Alice Nelson, a former employee of the store. Another customer came into the store and when he left, the black male got off the phone and asked Petersen what she had for aspirin. While she was looking up at the aspirin, the man grabbed her from behind, put his hand over her mouth, and pushed her into the backroom of the store. He laid her on her stomach, tied her up, and asked for the combination to the safe. He went through her pockets and took $15 and her daily planner. After the couple left, Petersen untied herself and called 911.
Petersen testified that she never got a good look at the male’s face because he kept his head down at all times, and never made direct eye contact with her. She noticed, however, that he was clean-shaven and did not have glasses. Petersen was unable to positively identify appellant from a photo line-up. Rather, she stated that another person stood out, but she could not honestly say that he was the man. While looking at appellant in court, Petersen was unable to say whether he was the male she had described.
Michael Simmons, a regular customer of the convenience store, testified that he went to the store the morning of March 8th and Alice was at the cash register running the place. He asked Alice where she had been; she replied that she had been on vacation. He did not see a black male in the store, nor did he see Petersen.
Following the robbery, officers photographed and dusted the phone and the safe handle for latent fingerprints. Appellant’s fingerprint was found on the phone. The state’s expert witness admitted, however, that a latent print could have been placed on the phone handset at any given time and that a latent print can survive on an object for a long period of time.
In his recorded statement to the investigating officer, appellant initially stated that he stopped at a gas station and only purchased gas on the evening of March 7. After the officer said that they had found appellant’s fingerprint on the phone, he remembered that he used a pay phone at a convenience store that evening. Appellant could not remember exactly what convenience store he had stopped at for gas.
Based on the phone-company records, there were no completed calls made from the pay phone on March 7th.
Leonard Sears testified that he had worked the closing shift at the convenience store on the evening of March 7th. Alice came into the store alone that evening. She had walked up the street to the store with a stocky male, who waited outside while Alice came in and made a purchase. Nobody used the pay phone that evening and there were no black males in the store all evening.
Richard Rusch, the owner of the residence where Alice was living, testified that on the morning of March 8, he arrived at his home between 7:30 and 8:00 a.m. and noticed that there was a grey or silver two-door car parked in his parking lot. The car was gone when Rusch left again at 9:00 that morning. The same car had been there on Friday and Saturday of that weekend. Rusch testified that he was one hundred percent certain that the car parked in his lot was the same car as shown in the photo of appellant’s car.
Appellant testified that he is a single parent of three small children and that his wife, Alice Nelson, is their mother. He and Alice have been living apart since 1994. He brought his three boys to Red Wing on the evening of Saturday March 7th so that they could see their mother. When they got to Alice’s, they ran into Duane, her gentleman friend. Appellant got upset, so he and his boys left. They went to a gas station to fill up and appellant used the phone. He called his friend Ardella but he could not remember if he talked to her at the gas station because he does not remember if the call went through at the gas station or when he got home. Appellant testified that on March 8, 1998 he had a moustache and that he has worn glasses since childhood.
Appellant was convicted and sentenced on one count of false imprisonment in violation of Minn. Stat. § 609.255, subd. 2; one count of kidnapping in violation of Minn. Stat. § 609.25, subd. 1(2); two counts of theft in violation of Minn. Stat. § 609.52, subd. 2(1); and one count of simple robbery in violation of Minn. Stat. § 609.24.
D E C I S I O N
Appellant contends that his convictions must be reversed because the circumstantial evidence presented at trial failed to exclude other reasonable hypotheses consistent with his innocence.
When reviewing the sufficiency of the evidence, this court is
limited to ascertaining whether a jury, giving due regard to the presumption of innocence and to the state’s burden of proof beyond a reasonable doubt, could reasonably conclude that the defendant was guilty based on the facts in the record and any legitimate inferences therefrom.
State v. Wallace, 558 N.W.2d 469, 472 (Minn. 1997). Although "[a] conviction based on circumstantial evidence merits stricter scrutiny," State v. Bias, 419 N.W.2d 480, 484 (Minn. 1988), the circumstantial evidence is entitled to as much weight as other evidence if the "circumstances proved are consistent with the hypothesis that the accused is guilty and inconsistent with any rational or reasonable hypothesis except for that of guilt." Wallace, 558 N.W.2d at 472 (citing State v. Pilcher, 472 N.W.2d 327, 335 (Minn. 1991). "[T]he circumstantial evidence must do more than give rise to suspicion of guilt; ‘it must point unerringly to the accused’s guilt.’" State v. Scharmer, 501 N.W.2d 620, 622 (Minn. 1993) (quoting State v. Loss, 295 Minn. 271, 281, 204 N.W.2d 404, 409 (1973)). The stricter standard "still recognizes a jury is in the best position to evaluate the circumstantial evidence surrounding the crime." Bias, 419 N.W.2d at 484 (quoting State v. Race, 383 N.W.2d 656, 662 (Minn. 1986)). It is the exclusive function of the jury to weigh the credibility of the witnesses. State v. Pieschke, 295 N.W.2d 580, 584 (Minn. 1980).
The circumstantial evidence against appellant consisted primarily of the following: (1) Ruth Petersen, the clerk, testified that the robber used the pay phone before committing the offense; (2) appellant’s fingerprint was the only identifiable print found on the convenience store pay phone; and (3) Alice Nelson’s landlord identified appellant’s car as the car that he saw in his parking lot outside Nelson’s apartment within a half-hour of the robbery.
The evidence of appellant’s fingerprint, found on the pay phone the robber used just before the offense, is highly probative of guilt. Concededly, fingerprints found in a public place may be less probative than those found at a less-accessible crime scene. Cf. State v. Slowinski, 450 N.W.2d 107, 116 (Minn. 1990) (discussing inferences to be drawn from defendant’s fingerprints found in neighbor-victim‘s apartment and on tape used in murder). But, although appellant points out that many people could have used the phone, his was the only identifiable fingerprint found, and his car was seen at the apartment of a known perpetrator, Alice Nelson, within minutes of the robbery.
The jury was in the best position to evaluate the possibility that appellant, despite his close connection to Alice Nelson on the morning of the robbery, innocently left his fingerprint at the crime scene. This is not a case involving a complicated chain of evidence or excessive reliance on a type of evidence the probative value of which has been questioned in other cases. Cf. State v Scharmer, 501 N.W.2d 620, 622 (Minn. 1993) (reversing conviction based heavily on dog-tracking evidence held earlier to be useful only for corroborative purposes); State v. Webb, 440 N.W.2d 426, 430-31 (Minn. 1989) (reversing murder conviction although seven facts pointed to defendant where no physical evidence linked defendant to crime).
A reasonable jury could certainly have concluded, given the fingerprint evidence and the identification of appellant’s car, that no reasonable doubt existed as to appellant’s guilt. See State v. Walen, 563 N.W.2d 742, 750 (Minn. 1997) (stating standard of review for appeal claiming insufficient evidence). We must assume the jury disbelieved appellant’s explanation that he used the convenience store’s pay phone at another time. Moreover, given the impeachment of appellant’s similar claim to police, that alternative theory is not sufficiently plausible to support a reversal of the conviction. See State v. Lahue, 585 N.W.2d 785, 789 (Minn. 1998) (holding that alternative theory of circumstantial evidence that is not plausible or supported by evidence does not justify a new trial). Accordingly, the conviction must be affirmed.
The state concedes that appellant’s conviction for false imprisonment must be vacated because it is a lesser-included offense of kidnapping. Minn. Stat. § 609.04, subd. 1(4) (1998); State v. Niska, 514 N.W.2d 260, 266 (Minn. 1994). We also conclude that appellant’s two theft convictions must be vacated as lesser-included offenses of the aggravated robbery. State v. Coleman, 373 N.W.2d 777, 781 (Minn. 1985).
Affirmed in part, reversed in part.[*] Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.