A05-2007

State of Minnesota,

Respondent,

vs.

Jason Mussehl,

Appellant.

Filed December 12, 2006

Affirmed

Worke, Judge

Ramsey County District Court

File No. K3-04-3435

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

Susan Gaertner, Ramsey County Attorney, Jeanne L. Schleh, Assistant County Attorney, 50 West Kellogg Blvd., Suite 315, St. Paul, MN 55102 (for respondent)

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

Considered and decided by Worke, Presiding Judge; Ross, Judge; and Crippen, Judge.[*]

U N P U B L I S H E D O P I N I O N

WORKE, Judge

On appeal from a conviction and sentence for third-degree burglary, appellant argues that (1) the evidence that he surreptitiously entered the office of a convenience store was not sufficient to prove that he entered with the intent to steal, (2) his waiver of his right to a jury trial on the sentencing issue of his career-offender status was invalid because neither the statute nor any rule at the time authorized a sentencing jury, and as a result his sentence must be reduced to the presumptive sentence, and (3) he received ineffective assistance of counsel. We affirm.

D E C I S I O N

Sufficiency of Evidence

Appellant Jason Mussehl argues that the evidence was insufficient to sustain a conviction for third-degree burglary because the state failed to prove that he entered the office with the intent to steal. When considering a claim of insufficient evidence, this court’s review is limited to a careful assessment of the record to determine whether the “[factfinder] could reasonably find the defendant guilty, given the facts in evidence and the legitimate inferences which could be drawn from those facts.” State v. Robinson, 604 N.W.2d 355, 365-66 (Minn. 2000). When reviewing the record, this court must view the evidence in the light most favorable to the conviction. State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989). Determining the weight and credibility of witness testimony is a matter for the factfinder. Id. We must assume that “the [factfinder] believed the state’s witnesses and disbelieved any evidence to the contrary.” Id.

Here, appellant and his female companion entered a convenience store as it opened. The woman made three separate purchases and left the store; she then pulled up to the front of the store in a vehicle and waited there with the motor running. Appellant had not yet left the store and the attendant was unable to locate him. The attendant called 911 when she noticed that the office light, which she had left on, was now off. An officer arrived and pushed the office door open with some resistance. The officer saw appellant sitting on a box, feigning sleep. When the officer ordered appellant out of the office, appellant stood up and reached around to his back and threw a pair of gloves down. Appellant continued to reach towards his waistband that held a pouch containing a silver and black object, which the officer believed could be a weapon. The officer drew his gun and, when appellant again failed to comply with the officer’s demands to show his hands and come out of the office, the officer rushed in and dragged appellant out. The officer later discovered that the black and silver object was a small crowbar. The attendant informed the officer that neither the gloves nor the tool had been in the office, and pointed out that the file cabinet had been moved, the drawers had been opened, the VCR had been turned off, and the surveillance tape removed.

Appellant was charged with third-degree burglary, in violation of Minn. Stat. § 609.582, subd. 3 (2004), and possession of burglary tools, in violation of Minn. Stat. § 609.59 (2004). Minn. Stat. § 609.582, subd. 3, states that an individual who

enters a building without consent and with intent to steal or commit any felony or gross misdemeanor while in the building, or enters a building without consent and steals or commits a felony or gross misdemeanor while in the building, either directly or as an accomplice, commits burglary in the third degree . . . .

The district court found that while there was no signage on the door to the office, there was “no question . . . that that office was not open to the public, that that was not an area into which a person could go without the consent of the management.” Further, the district court found that had appellant stumbled into the office, realized it was an office and immediately left, he would not have been charged with burglary. However, appellant was found apparently hiding in the office and did not comply with several orders by an officer to come out of the office. The district court found that “[c]ircumstantial evidence supports the finding that [appellant] entered that office with the intention of finding something to steal, with the intention of stealing something.” Appellant concedes that he entered the office, which was not open to the public. However, appellant argues that in order to be found guilty of burglary, the state had to prove that he had the intent to steal when he entered the office or that he stole or committed another crime after he entered the office. Appellant argues that his conviction is based on circumstantial evidence that fails to “form a complete chain” that leads directly to his guilt.

Circumstantial evidence is entitled to the same weight as direct evidence, but this court reviews it with stricter scrutiny. State v. Bauer, 598 N.W.2d 352, 370 (Minn. 1999). 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 factfinder is in the best position to evaluate circumstantial evidence, and this court defers to its factual determinations. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). Appellant entered the office surreptitiously with gloves and a crow bar, deliberately removed the surveillance video from the VCR, opened file cabinet drawers, and moved the file cabinet. Appellant also failed to comply with numerous demands by the officer to come out of the office. This evidence, while circumstantial, supports the district court finding that appellant entered the office with the intent to steal. As the district court correctly points out, “[t]he fact that there may not have been much of value to steal is insignificant.” Further, the district court is in the best position to weigh circumstantial evidence, and we will not overturn the district court’s factual determinations. See id. Therefore, appellant has failed to demonstrate that the evidence was insufficient to support his conviction.

Sentencing Procedure

Appellant argues that because the statute in effect at the time the crime was committed did not authorize a trial on the issue of career-offender status, and judicial factfinding to support an upward departure is unconstitutional under Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), his sentence must be reduced to the presumptive sentence. Appellant’s argument presents a legal issue, which this court reviews de novo. See State v. Wright, 588 N.W.2d 166, 168 (Minn. App. 1998), review denied (Minn. Feb. 24, 1999).

Judicial factfinding to support an upward departure is prohibited by Blakely, but appellant failed to raise this claim in the district court. We ordinarily do not decide issues raised for the first time on appeal, even constitutional questions of criminal procedure. State v. Sorenson, 441 N.W.2d 455, 457 (Minn. 1989). We may address such issues, though, when the interests of justice require their consideration and doing so would not work an unfair surprise on a party. Minn. R.Crim. P. 28.02, subd. 11. Appellant specifically waived his right to a jury trial under Blakely. Appellant’s counsel explained to appellant, “you [] understand that under this new Supreme Court decision of Blakely that you have an absolute right if the [c]ourt were going to increase the sentence to have a jury decide those issues before a judge could increase the sentence.” Appellant acknowledged that he was aware of his rights under Blakely and agreed to have “the judge decide whether or not [he was] a career offender.” Appellant reaffirmed his waiver twice. Because appellant was fully advised by counsel of his right to a jury trial under Blakely, and appellant waived that right on numerous occasions, his argument that the judicial factfinding on his status as a career offender was unconstitutional fails.

Appellant also argues the statute in effect at the time the crime was committed did not authorize a trial on the issue of career-offender status; therefore, his waiver was illusory and invalid. Appellant’s argument fails, however, based on the recent decision of the Minnesota Supreme Court recognizing the inherent authority of the district court to submit sentencing issues to a jury. State v. Chauvin, ___ N.W.2d ___ (Minn. Oct. 26, 2006). Because the district court had the inherent authority to empanel a jury, and appellant knowingly and voluntarily waived his right to a jury trial, appellant’s sentence is affirmed.

Ineffective Assistance of Counsel

In his pro se supplemental brief, appellant argues that his attorney was not effective because he failed to introduce evidence that supported his case, refused to ask appellant’s questions, and refused to mount a particular theory of defense requested by appellant. Appellant’s argument fails, however, because Minnesota courts have repeatedly held that we will not second-guess counsel’s trial tactics. Opsahl v. State, 677 N.W.2d 414, 421 (Minn. 2004). What evidence to present to the jury, including which witnesses to call, represents an attorney’s decision regarding trial tactics and lies within the proper discretion of trial counsel. State v. Jones, 392 N.W.2d 224, 236 (Minn. 1986);see also State v. Voorhees, 596 N.W.2d 241, 255 (Minn. 1999) (stating that defense counsel’s failure to call certain witnesses did not constitute ineffective performance and represented a matter of trial strategy that the court will not review for competence); Scruggs v. State, 484 N.W.2d 21, 26-27 (Minn. 1992) (rejecting the claim that defense counsel’s failure to call three potential defense witnesses constituted ineffective assistance). And trial counsel’s decision not to pursue a particular theory of defense does not generally rise to the level of ineffective assistance of counsel. See Voorhees, 596 N.W.2d at 255 (stating that matters of trial strategy, including what defenses to raise at trial, will not be reviewed later for competence).

Affirmed.

[*] Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.