This opinion will be unpublished and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

A05-1677

 

 

State of Minnesota,

Respondent,

 

vs.

 

Bruce Wayne Anderson,

Appellant.

 

 

Filed September 26, 2006

Affirmed in part, reversed in part

Toussaint, Chief Judge

 

Chisago County District Court

File No. K1-04-8

 

 

Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

Katherine M. Johnson, Chisago County Attorney, Susan E. Drabek, Assistant County Attorney, Chisago County Courthouse, 313 North Main Street, Room 373, Center City, MN 55012 (for respondent)

 

John M. Stuart, State Public Defender, Steven P. Russett, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)

 

 

            Considered and decided by Willis, Presiding Judge; Toussaint, Chief Judge; and Dietzen, Judge.

U N P U B L I S H E D   O P I N I O N

TOUSSAINT, Chief Judge

Appellant Bruce Wayne Anderson challenges his convictions of attempt to manufacture methamphetamine and possession of stolen property.  Because we conclude that Anderson had no opportunity to defend against the attempt charge, we reverse that conviction; because the evidence is sufficient to support the conviction of possessing stolen property, we affirm that conviction.

FACTS

On December 29, 2003, police officers with the Chisago County Sheriff’s Department and the North Branch Police Department executed a search warrant on property Anderson owned and rented out.  The officers recovered stolen construction materials and equipment listed on the warrant and noticed other items, including a large tool box, also believed to be stolen. 

The next day police confirmed that the other items had been reported stolen, and they executed another search warrant on the property to seize the stolen items.  When the officers approached the house, they observed Anderson and Steven Francen loading equipment into a truck.  One of the items in the truck was the tool box observed the day before.  An investigating officer recognized Anderson from previous contacts.  Francen stated that he did not have identification and told the officers that his name was Scott Wallin.  Anderson refused to identify Francen when asked.  During the investigation, Anderson was agitated, and he raised a hammer up to his shoulder in “an aggressive manner.”  Francen and Anderson were arrested for possessing stolen property. 

Later that day, police went to Anderson’s own residence.  They found two people loading equipment used to manufacture methamphetamine into a truck outside the residence.  Police obtained and executed a search warrant; they discovered a plastic bag containing a white powder in a drawer of a nightstand next to Anderson’s bed.  A field test indicated that the powder was cocaine, but a laboratory report later confirmed that the powder was ephedrine/pseudoephedrine. 

            Anderson was charged with conspiracy to manufacture methamphetamine, in violation of Minn. Stat. § 152.021, subds. 2a, 3(a) (2002 & Supp. 2003); possession of stolen property, in violation of Minn. Stat. §§ 609.53, subd. 1, .52, subd. 3 (2002); and second-degree controlled-substance crime, in violation of Minn. Stat. § 152.022, subds. 2(1), 3(a) (2002).  The state later dismissed the second-degree controlled-substance charge, and Anderson waived his right to a jury trial on the other two charges. 

            The district court found Anderson guilty of possession of stolen property.  It acquitted him of conspiracy to manufacture methamphetamine but found him guilty of attempt to manufacture methamphetamine, in violation of Minn. Stat. § 152.021, subd. 2a(b) (Supp. 2003).  The district court later issued an order finding Anderson guilty of attempt to manufacture methamphetamine, in violation of Minn. Stat. §§ 152.021, subd. 2a (Supp. 2003), 609.17, subd. 1 (2002). 

            Appellant moved for posttrial relief, arguing that his conviction of attempt to manufacture methamphetamine was improper because he was not charged with attempt and attempt is not an included offense of the conspiracy charge.  The district court agreed that the conviction was erroneous but noted that the evidence on which the attempt conviction was based was the same evidence offered to prove the conspiracy charge and that Anderson challenged that evidence in his defense against the conspiracy charge.  It concluded that it need not set aside the conviction because Anderson “was not denied an opportunity to respond and to prepare a defense.”  The district court granted Anderson’s request for a dispositional departure and imposed a 55-month stayed sentence for the attempt conviction and a 19-month stayed sentence for the possession-of-stolen-property conviction.

D E C I S I O N

Anderson argues that the district court erred by convicting him of the uncharged crime of attempt to manufacture methamphetamine on the ground that attempt is a lesser included offense of conspiracy to manufacture methamphetamine.

            It is fundamental error to convict a defendant of an uncharged crime that is not an included offense of a charged crime.  State v. Gisege, 561 N.W.2d 152, 159 (Minn. 1997).  But we will reverse a conviction error only if the error “denied the defendant the opportunity to prepare an adequate defense.”  Id.  In Gisege, the supreme court considered the validity of a conviction of first-degree assault when the defendant was charged with attempted first- and second-degree murder.  Id. at 155.  The supreme court first concluded that first-degree assault is not an included offense to attempted first- and second-degree murder.  Id. at 159.   But because the defendant requested that the district court instruct the jury on the assault, the supreme court held that he could not “claim, let alone show, that the inclusion of the lesser but nonincluded charge hindered his opportunity to prepare a defense.”  Id.

Here, the state argues that because Anderson’s attempt conviction is based on the same evidence offered to prove the conspiracy charge—the bag of ephedrine/pseudoephedrine found in the Anderson’s nightstand—and Anderson knew that this evidence was going to be offered against him, Anderson was not denied the opportunity to prepare an adequate defense.

Neither the parties nor the district court mentioned the possibility of a charge of attempt to manufacture methamphetamine before or during the presentation of state’s evidence.  Anderson was ultimately convicted of attempt to manufacture methamphetamine under Minn. Stat. § 609.17, which requires proof that he took a substantial step toward the manufacturing of methamphetamine.  See Minn. Stat. § 609.17, subd. 1 (2002).  But he did not know he might be convicted of attempt when he cross-examined the state’s witnesses.  We conclude that Anderson was denied the opportunity to defend against the attempt charge by showing that possession of ephedrine/pseudoephedrine does not constitute a substantial step toward the manufacturing of methamphetamine.  We therefore reverse Anderson’s conviction of the uncharged crime of attempt to manufacture methamphetamine.

Anderson also challenges the sufficiency of the evidence supporting his conviction of possession of stolen property.  When an appellant challenges the sufficiency of the evidence, our review is limited to a thorough analysis of the record to determine “whether the facts in the record and the legitimate inferences drawn from them would permit the jury to reasonably conclude that the defendant was guilty beyond a reasonable doubt.”  Davis v. State, 595 N.W.2d 520, 525 (Minn. 1999) (quotation omitted).  We assume that the fact-finder, who has the exclusive function of judging credibility, believed the state’s witnesses and disbelieved contrary evidence.  See Dale v. State, 535 N.W.2d 619, 623 (Minn. 1995).  We review “criminal bench trials the same as jury trials when determining whether the evidence is sufficient to sustain convictions.”  Davis, 595 N.W.2d at 525 (quotation omitted).

A person who “receives, possesses, transfers, buys or conceals any stolen property or property obtained by robbery, knowing or having reason to know the property was stolen or obtained by robbery” is guilty of possession of stolen property.  Minn. Stat. § 609.53, subd. 1 (2002).  Anderson does not dispute that he was in possession of stolen property.  He argues instead that the record does not show that he knew or had reason to know that the property was stolen.

The district court’s finding that Anderson knew or had reason to know that the property was stolen is based on circumstantial evidence.  Circumstantial evidence is entitled to the same weight as direct evidence, but we review it with stricter scrutiny.  State v. Bauer, 598 N.W.2d 352, 370 (Minn. 1999).  The circumstantial evidence must “form a complete chain which, in light of the evidence as a whole, leads so directly to the guilt of the accused as to exclude, beyond a reasonable doubt, any reasonable inference” other than guilt.  State v. Jones, 516 N.W.2d 545, 549 (Minn. 1994).  “The evidence as [a] whole need not exclude all possibility that the defendant is innocent; it must only make such a theory seem unreasonable.”  State v. Smith, 619 N.W.2d 766, 770 (Minn. App. 2000), review denied (Minn. Jan. 16, 2001).  The fact-finder is in the best position to evaluate circumstantial evidence, and its determination is entitled to due deference.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).

The record shows that police observed Anderson loading stolen construction equipment into a truck one day after police executed a search warrant looking for stolen property.  The officer who first observed Anderson loading the stolen equipment testified that he thought Anderson and Francen were removing the rest of the stolen items that police did not seize during the first search.  Anderson was evasive when police inquired about Francen’s identity and became agitated and threatening.  Anderson told police that he did not want to identify his friend because he did not want to get him in trouble.  On this evidence, the district court concluded that Anderson knew or had reason to know that the property was stolen. 

Anderson argues that the circumstantial evidence relied on by the district court does not sufficiently support his guilt beyond a reasonable doubt in light of his testimony.  Anderson testified that he thought the police had removed all of the stolen property during the first search and that he thought that the equipment he was loading into the truck belonged to Francen.  But Anderson also testified he knew that Francen had stolen the construction equipment seized during the first search, and the record shows that he and Francen were loading more construction equipment into a truck the next day.  In light of our deference to the district court’s credibility determinations, we conclude that the record shows Anderson knew or had reason to know that the construction equipment was stolen.  The evidence is sufficient to support the conviction.

Affirmed in part and reversed in part.