This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-1478

 

State of Minnesota,

Respondent,

 

vs.

 

Reginald Leon Haynes,

Appellant.

 

Filed ­­­July 19, 2005

Affirmed in part and remanded

Dietzen, Judge

 

Hennepin County District Court

File No. 04000322

 

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

 

Amy Klobuchar, Hennepin County Attorney, Linda M. Freyer, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for respondent)

 

John M. Stuart, State Public Defender, Jodie L. Carlson, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)

 

            Considered and decided by Hudson, Presiding Judge; Stoneburner, Judge; and Dietzen, Judge.

U N P U B L I S H E D   O P I N I O N

 

DIETZEN, Judge

 

            Appellant challenges his convictions of terroristic threats, criminal damage to property, and theft, arguing that there was insufficient evidence to support the convictions and that the prosecutor committed misconduct.  Because sufficient evidence supported the convictions and the alleged prosecutorial misconduct did not prejudice appellant’s right to a fair trial, we affirm.  Because the district court failed to issue written findings of fact in accord with Minn. R. Crim. P. 26.01, subd. 2, we remand for written findings.

FACTS

 

            Appellant Reginald Haynes and Kesha Jackson lived together in an off-and-on romantic relationship for about eight years.  In December 2003, they were living together in a townhouse in Brooklyn Park with their daughter R., appellant’s son R., Jr., and Jackson’s son T.

            Jackson testified at trial that on Sunday morning, December 21, 2003, she and appellant had an argument when appellant stated that he was going to take their daughter to Oklahoma to visit his mother for the holidays.  Jackson said she would not allow it.  Appellant became angry and told Jackson that he would hit her in the head with a tire iron, slash her throat, and put her in a coma.  Jackson was frightened and decided to leave with R. and T. for her sister’s home.

Although it was not police policy, Officer Michael Oakvik agreed to accompany Jackson when she returned to her townhouse on Tuesday, December 23, because she was fearful.  When Jackson entered the home, Oakvik heard her scream.  They found that the house was flooded; water faucets had been left running and drains had been plugged.  Jackson’s purses and shoes filled the bathtub and were submerged in water.  Jackson’s and the children’s clothing had been taken out of the closets and strewn on the flooded floor.  Jackson’s clothing had also been slashed with a sharp object; lying next to the cut clothing was a steak knife.  A couch, loveseat, and chair in the living room purchased by Jackson had also been slashed.  Jackson noticed that a computer, three televisions, and other miscellaneous items were missing.

            Following the incident, appellant was charged with one count of terroristic threats, one count of criminal damage to property in excess of $500, one count of criminal damage to property in excess of $2,500, and one count of theft.  Appellant waived his right to a jury trial.  At his bench trial, appellant, Jackson, Oakvik, and R., Jr., testified.  The district court convicted appellant of terroristic threats, criminal damage to property in excess of $500, and theft.  Appellant was sentenced to concurrent prison terms of 21 months for terroristic threats, 17 months for criminal damage to property, and 21 months for theft.  Appellant now challenges his convictions.

D E C I S I O N

I.

 

Factual Findings

 

            Appellant contends that the district court erred by failing to issue factual findings in a written order.  In cases tried without a jury, “[t]he court, within 7 days after the general finding in felony and gross misdemeanor cases, shall in addition specifically find the essential facts in writing on the record.”  Minn. R. Crim. P. 26.01, subd. 2.  Here, following the bench trial, the district court failed to issue any written factual findings.  The court made the following oral factual findings on the record:

            I find that the State has proved it [sic] case beyond a reasonable doubt in that [appellant] threatened to commit a crime of violence, that he made the threat – actually threats – with intent to terrorize . . . Jackson and to cause extreme fear in her, and that the acts took place on December 21st, 2003, in Hennepin County.  So I find [appellant] guilty of Count I.

            I also find that [appellant] intentionally caused damage to the property of . . . Jackson, that he damaged her clothing and personal property.  She did not consent to the damage and the damage reduced the value by more than $500.  Now I am not including in any of this the electronic sets, the computer and the T.V. sets.  But the evidence is that they were not damaged, but that they were taken which was not charged in this case.  The items that I am including are the sofa for $999, the clothing of approximately $300, and children’s clothing at $100.  And I find [appellant], because of the value, not guilty of Count III.

. . . .

            And the theft of property is charged and I find [appellant] guilty.  And that would be the electronic equipment, . . . the three T.V. sets and the computer.

 

Although the district court made these oral findings, the failure to put them in writing violates Minn. R. Crim. P. 26.01, subd. 2.  See State v. Taylor, 427 N.W.2d 1, 5 (Minn. App. 1988) (concluding that record contained sufficient findings to support convictions but required remand to district court for written findings so as to not “render the rule meaningless”), review denied (Minn. Sept. 28, 1998); accord State v. Thomas, 467 N.W.2d 324, 327 (Minn. App. 1991).  Thus, while the district court’s oral factual findings on the record are adequate for our review of the sufficiency of the evidence, to comply with rule 26.01, we must remand for written findings supporting appellant’s convictions.

II.

Insufficient Evidence

Appellant contends that the evidence was insufficient to support his convictions of terroristic threats, criminal damage to property, and theft.  On a claim of insufficiency of the evidence, this court’s review is limited to a careful analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, is sufficient to allow the factfinder to reach its verdict.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  On appeal, the reviewing court must assume that the factfinder believed the state’s witnesses and disbelieved any contrary evidence.  State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).  The reviewing court will not disturb the verdict if the factfinder, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude that the defendant was guilty of the charged offense.  State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).  The factfinder determines the credibility of witnesses and weight of their testimony.  State v. Travica, 398 N.W.2d 666, 670 (Minn. App. 1987).

Terroristic Threats

Appellant argues that the evidence was insufficient to support his conviction of terroristic threats.  A person is guilty of terroristic threats if he “threatens, directly or indirectly, to commit any crime of violence with purpose to terrorize another . . . or in a reckless disregard of the risk of causing such terror or inconvenience . . . .”  Minn. Stat. § 609.713, subd. 1 (2002).

            Appellant first contends that Jackson’s testimony was inconsistent.  Specifically, appellant argues that Jackson testified that he threatened violence over damage she did to his car, but later she testified that it was over her refusal of his request to take their daughter to Oklahoma for the holidays.  However, the record reflects that although Jackson testified that appellant was angry about damage to his car, the discussion about their daughter’s holiday plans resulted in appellant’s threats.  Here, where the case depends on conflicting testimony, we assume that the factfinder believed the state’s witnesses and disbelieved contrary evidence.  Moore, 438 N.W.2d at 108.  Appellant requests that we reverse the district court’s credibility judgment, which this court will not do.  See State v. Moot, 398 N.W.2d 21, 23 (Minn. App. 1986) (“The trial court acts as factfinder in weighing the credibility of the witnesses.”), review denied (Minn. Feb. 13, 1987).  The district court judged the witnesses’ credibility and found Jackson’s testimony credible to support the conviction.  We defer to that finding and do not find it unreasonable.

            Appellant next argues that Jackson’s testimony revealed that he lacked the intent necessary under the terroristic threats statute.  He elaborates that the threats were “idle expressions of [his] frustration rather than an expression of an actual purpose to carry them out.”  Jackson’s testimony that when appellant told her he was going to take their daughter to Oklahoma and she did not acquiesce, he became angry and told her he was going to hit her head with a tire iron, slash her throat, and put her in a coma.  Jackson’s fear of appellant after this incident prompted her to leave her home with her two children to stay with her sister.  Thus, it appears that if the district court believed Jackson, appellant threatened her with a crime of violence with the purpose of terrorizing her necessary for a terroristic-threats conviction.

Further, intent is generally determined from the defendant’s words and actions in light of the surrounding circumstances.  See State v. Duea, 414 N.W.2d 513, 515 (Minn. App. 1987) (citing State v. Hadimon, 310 N.W.2d 564, 566 (Minn. 1981)).  While respondent argues that “intent” is not required by the terroristic-threats statute because the phrase “purpose to terrorize” is used, we conclude that intent and purpose are synonymous in this context.  Nonetheless, there is sufficient evidence to support the district court’s determination; it is difficult to believe that a person would tell another person that he planned to hit her with a tire iron, slash her throat, and put her in a coma without having the purpose to terrorize her.  Because appellant’s purpose or intent to terrorize is evident from the surrounding circumstances, his conviction of terroristic threats was sufficiently supported by the record.

            Damage to Property

            Appellant next argues that the evidence is insufficient to sustain his damage to property conviction.  Appellant was convicted of criminal damage to property under Minn. Stat. § 609.595, subd. 1(3) (2002), which states:

            Whoever intentionally causes damage to physical property of another without the latter's consent may be sentenced to imprisonment for not more than five years or to payment of a fine of not more than $10,000, or both, if:

. . . .

(3) the damage reduces the value of the property by more than $500 measured by the cost of repair and replacement[.]

 

While appellant does not dispute that Jackson’s home was flooded; that shoes, purses, and clothing were soaked; and furniture was slashed; he contends that the evidence is insufficient to support the contention that he was responsible.  Appellant also argues that because the door was unlocked, anyone could have entered the home and destroyed the property.  He reiterates that none of the witnesses testified that he was at the home when the damage occurred.  But, appellant admitted being at the townhouse on December 22 to remove his belongings.  Jackson discovered the damage when she returned on the morning of December 23.

            Thus, circumstantial evidence supports appellant’s guilt.  A conviction “based entirely on circumstantial evidence merits stricter scrutiny than convictions based in part on direct evidence.”  State v. Jones, 516 N.W.2d 545, 549 (Minn. 1994).  Circumstantial evidence in a criminal case merits as much weight as any other type of evidence provided that the circumstances proved are consistent with the hypothesis of guilt and inconsistent with any other rational or reasonable hypothesis.  State v. Wallace, 558 N.W.2d 469, 472 (Minn. 1997).  Given that appellant and Jackson had a fight the same day, appellant was at the townhouse on December 22 ostensibly to remove his belongings, and only Jackson’s personal items, including her sofa, shoes, purses, and clothes were slashed or soaked, the district court could have reasonably concluded that the only plausible inference to be drawn from the circumstances was that appellant was responsible.  See id. at 472-73 (upholding criminal sexual conduct conviction when only circumstantial evidence supported it).  Furthermore, appellant’s conjecture that because the door was left unlocked, anyone could have entered the townhouse and damaged the property, is nothing more than speculation.  “[F]or a convicted criminal to successfully challenge a verdict based on circumstantial evidence, he must show that his claim is consistent with a rational hypothesis other than guilt.”  State v. Race, 383 N.W.2d 656, 662 (Minn. 1986).  The theory of a random stranger entering the townhouse and destroying Jackson’s personal possessions is not plausible or rational.  Thus, viewing the evidence in the light most favorable to the conviction, the totality of the circumstances supports appellant’s conviction of property damage of $500 or more.

            Theft

            Appellant next argues that he should not have been convicted of theft because he had a “claim of right” to the property he was convicted of taking.  A person who “intentionally and without claim of right takes, uses, transfers, conceals or retains possession of movable property of another without the other’s consent and with intent to deprive the owner permanently of possession of the property” is guilty of theft.  Minn. Stat. § 609.52, subd. 2(1) (2002).  At trial, the parties disputed who owned the televisions and computer that were taken from the home.  Appellant testified that he had the right to take the items when he moved out because he paid half their cost.  Jackson asserted that she bought the televisions and computer.  The district court acting as the factfinder had the authority to determine the relative credibility of the parties’ testimony.  Moot, 398 N.W.2d at 23; State v. Spanyard, 358 N.W.2d 125, 127 (Minn. App. 1984), review denied (Minn. Feb. 27, 1985).  It is not the duty of this court to overturn the district court’s determination regarding the parties’ versions of events.  Travica, 398 N.W.2d at 670.  Thus, the evidence is sufficient to support appellant’s theft conviction.

III.

Prosecutorial Misconduct

Appellant objects to the prosecutor’s question to Oakvik at trial asking if Jackson had said “anything more specific about who she believed” had damaged her property.  Oakvik first answered affirmatively but then provided a nonresponsive answer in which he introduced hearsay testimony identifying appellant.  Appellant argues that the prosecutor committed misconduct by failing to instruct Oakvik that he could not identify appellant.

Appellant failed to either bring a motion to strike or otherwise object to the response.  While appellant’s counsel objected to the preceding question on the basis of hearsay, she failed to object again after Oakvik identified appellant as the person Jackson suspected.  “Íf the defendant failed to object to the misconduct at trial, he forfeits the right to have the issue considered on appeal, but if the error is sufficient, this court may review.”  State v. Powers, 654 N.W.2d 667, 678 (Minn. 2003) (citing State v. Sanders, 598 N.W.2d 650, 656 (Minn. 1999)).  Even if we were to review the alleged error, we conclude that the district court’s verdict was “surely unattributable” to any error and thus was harmless.  See State v. King, 622 N.W.2d 800, 811 (Minn. 2001) (quoting State v. Juarez, 572 N.W.2d 286, 292 (Minn. 1997)).  Any alleged error here does not warrant a new trial.

Because sufficient evidence supported appellant’s convictions and prosecutorial misconduct did not impair his right to a fair trial, we affirm.  The district court failed to
provide written findings of fact in accord with Minn. R. Crim. P. 26.01, subd. 2, so we remand for written findings.

Affirmed in part and remanded.