This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).


State of Minnesota,


Daniel Lynn Conley,

Filed October 19, 1999
Klaphake, Judge

Ramsey County District Court
File No. K9-98-3249

Mike Hatch, Attorney General, 525 Park St., Suite 500, St. Paul, MN 55103; and

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

John M. Stuart, State Public Defender, Susan K. Maki, Assistant State Public Defender, 2829 University Ave. S.E., Ste. 600, Minneapolis, MN 55414-3230 (for appellant)

Considered and decided by Halbrooks, Presiding Judge, Kalitowski, Judge, and Klaphake, Judge.

U N P U B L I S H E D   O P I N I O N


Daniel Conley alleges that the evidence was insufficient to sustain his conviction for second-degree burglary and that the trial court erred by refusing to instruct the jury that, where a conviction is based solely on circumstantial evidence, all circumstances must be consistent with guilt and inconsistent with any other rational conclusion. Because we conclude that the evidence is sufficient to sustain the conviction and that the trial court did not abuse its discretion by refusing the proposed instruction, we affirm.


I. Insufficiency of the Evidence

Conley argues that the evidence is insufficient to prove intent to commit the crime of theft, an essential element of the charge. Intent to commit a theft is almost always dependent on circumstantial evidence. State v. Witte, 280 Minn. 116, 118, 158 N.W.2d 266, 268 (1968).

Where there is an insufficiency of evidence claim, the reviewing court examines the record in a light most favorable to the verdict, to determine if the evidence is sufficient to permit a reasonable jury to reach a guilty verdict. State v. Spaeth, 552 N.W.2d 187, 192 (Minn. 1996). However, if the conviction is based on circumstantial evidence, stricter scrutiny is required. Id.

While circumstantial evidence is entitled to the same weight as other evidence, there is an additional requirement that the circumstances proved are consistent with the hypothesis that the accused is guilty and inconsistent with any rational hypothesis except guilt.


The evidence shows that Conley was discovered asleep on the stairs inside a St. Paul house by guests of one of the residents. He had apparently entered the locked house through one of the windows and rifled through a bureau located in the house, although nothing was taken. Awaking before the police arrived, he told the guests that he was at his sister's or her friend's house, and he repeated this statement to the police when they arrived shortly thereafter. Police found that two windows had been tampered with and that shoeprints matching Conley's were beneath one of these windows. Neighbors reported that items in their garage had been disturbed and two or three cans of Cherry Coke had been taken. A can of Cherry Coke was found on the porch railing of the burgled house. Conley was described as groggy, but not obviously intoxicated or impaired. He did not testify at trial, but his statements about his presence in the house were admitted.

Taken as a whole, the circumstantial evidence is sufficient to disprove Conley's alternative theory. See Witte at 118-19, 158 N.W.2d at 268 ("[w]here * * * circumstantial evidence considered as a whole raises more than a mere suspicion and the sum of the inferences reasonably to be drawn from the circumstances is consistent with guilt and inconsistent with any rational belief of innocence, the evidence is sufficient to permit an inference justifying a finding of the required intent.")

II. Jury Instructions

Conley claims that the trial court erred in refusing to instruct the jury that where a verdict is based solely on circumstantial evidence, the circumstances must exclude every reasonable hypothesis but guilt.

The refusal to give a requested jury instruction is generally a matter within the discretion of the trial court and its decision will not be overturned absent an abuse of discretion. State v. Blasus, 445 N.W.2d 535, 542 (Minn. 1989). The instruction requested in this case is not mandatory and refusal to give it is not reversible error. State v. Gassler, 505 N.W.2d 62, 68 (Minn. 1993); State v. Turnipseed, 297 N.W.2d 308, 312-13 (Minn. 1980); State v. Beard, 574 N.W.2d 87, 92 (Minn. App. 1998), review denied (Minn. Apr. 14, 1998). This court has stated that the "giving of such a detailed instruction on the weighing of circumstantial evidence risks jury confusion." Beard, 574 N.W.2d at 92. It was not an abuse of discretion to refuse the request for this instruction.

III. Constitutional Claims

Conley raises a number of other issues in his pro se supplemental brief. Neither the issue of confrontation of witnesses nor of suppression of evidence by the prosecution was raised at trial, and thus these issues are waived. State v. Roby, 463 N.W.2d 506, 508 (Minn. 1990).

Conley also alleges ineffective assistance of counsel. To sustain this allegation, Conley must prove (1) that counsel's representation fell below an objective standard of reasonableness, and (2) but for counsel's errors, the results with reasonable probability would have been different. Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (quoting Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068 (1984)). It is not sufficient to speculate about what might have been; a more concrete showing must be made. Gates, 398 N.W.2d at 563 (improper to base a reversal on speculation that an investigation might have found a helpful witness; defendant has an affirmative burden to actually show existence of a material witness). Conley has not sustained this burden.