This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-1172

 

 

In the Matter of the Welfare of: S.M.T.

 

 

Filed January 23, 2007

Affirmed

Huspeni, Judge*

 

Hennepin County District Court

File No. 27-JV-06-1542

 

Leonardo Castro, Chief Fourth District Public Defender, Peter W. Gorman, Assistant Public Defender, 317 2nd Ave. S., Suite 200, Minneapolis, MN 55401 (for appellant S.M.T.)

 

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

 

Michael O. Freeman, Hennepin County Attorney, Thomas A. Weist, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent State of Minnesota)

 

            Considered and decided by Stoneburner, Presiding Judge; Halbrooks, Judge; and Huspeni, Judge.

U N P U B L I S H E D   O P I N I O N

HUSPENI, Judge

            Appellant challenges his adjudication as delinquent, after being found guilty of motor vehicle theft under Minn. Stat. § 609.52, subd. 2(17) (2004), claiming that the evidence was insufficient to support guilt beyond a reasonable doubt and that his waiver of a jury trial was inadequate.  Because we find that the evidence was sufficient and the waiver of a jury trial adequate, we affirm.

FACTS

Jaffar Hantoosh was a cashier at Janine’s Market in Minneapolis on November 15, 2005.  Hantoosh testified that appellant S.M.T. entered Janine’s Market that morning and inquired about a car in the parking lot that Hantoosh was selling.  In response to a request by S.M.T., Hantoosh started the car and opened the hood.  S.M.T. was apparently satisfied that the engine was fine, and after agreeing to a price of $8,000, Hantoosh called the owner of Janine’s Market and received permission to close the store in order to finish the sale. 

Hantoosh testified further that S.M.T. proposed that they drive to meet S.M.T.’s brother to obtain the money for the sale.  Hantoosh countered with a suggestion that they meet S.M.T.’s brother at the bank, where Hantoosh still owed money on the car, in order to complete the transaction.  Hantoosh closed the store, and the two men entered the car and drove toward the bank.  At the first stoplight, S.M.T. asked, “Can I drive the car?”  Hantoosh agreed, left the keys in the ignition, got out of the car, and went to the other side so that the two could switch places.  S.M.T., however, closed the door before Hantoosh could get in on the passenger side, slid over to the driver’s seat, and drove away.

Hantoosh reported the theft, and on November 23, 2005, the car was identified by police and stopped.  S.M.T.’s mother was driving.  She stated that her son had brought the car home.  A delinquency petition was brought, charging S.M.T. with motor vehicle theft for taking or driving a motor vehicle without the consent of the owner in violation of Minn. Stat. § 609.52, subd. 2(17) (2004).  Respondent state’s motion for adult certification was denied; prosecution proceeded as an extended jurisdiction juvenile (EJJ) matter.  S.M.T. waived his right to a jury trial, and the case was heard before the court.

At trial when Hantoosh was asked to describe the appearance of the individual who took the car without permission, he replied:

A.        The only thing I remember is a big scar in her neck, that’s all I remember.

 

Q.        Okay.  All right, do you see this person in the courtroom today?

 

A.        Yes, she’s sitting right there.

 

Q.        Could you be a little more specific about where the person is and what the person is wearing?

 

A.        She is wearing a white shirt and jeans and she’s sitting right there.

 

[Prosecutor]:  May the record reflect that the witness has identified [S.M.T.].

 

Q.        Does this person look any different to you today than the person looked on November 15th?

 

A.        I can’t remember exactly the clothes or something like that, but she looks exactly the same way to me as I saw her that time.

 

The record contains no further evidence about a scar, nor any comment from either attorney or the court itself regarding the identification of S.M.T. as “she.” 

S.M.T., testifying on his own behalf, stated that he had received the car as payment for his sexual services to a man named John, whom he met on the Internet.  S.M.T. also offered, as alibi evidence, his testimony that he had surgery on the day in question at Northpoint Health and Wellness Center and spent the entire day at that location.  S.M.T.’s probation officer testified that S.M.T. was away from home from 9:06 a.m. to 6:13 p.m. on the day in question, and S.M.T.’s mother indicated that her son was at the doctor’s office.  The probation officer later received a note on Northpoint Health and Wellness Center letterhead, signed by either a nurse or a pharmacist, that S.M.T. had been at Northpoint from 9:15 a.m. until 4:30 p.m. on November 15.  The note, for reasons not entirely clear, was introduced by the prosecution.  There was no evidence, however, that the signer of the note was with S.M.T. throughout the day, or even for any part of it.  

After completion of testimony, the court found the petition proven beyond a reasonable doubt, stating:

[T]he court does find him guilty beyond a reasonable doubt of Motor Vehicle Theft, a felony occurring on 11-15, 2005.  [S.M.T.’s] story is incredulous and I have no belief in anything that he said.  I do think Mr. Hantoosh’s testimony was consistent with something that would have happened and could have happened and did happen in this case.

 

This appeal follows.

D E C I S I O N

I.

Appellant contends that there was insufficient evidence to support the district court’s conclusion that the petition was proved beyond a reasonable doubt.  “On appeal from a determination that the elements have been proved, an appellate court is limited to ascertaining whether, given the facts and legitimate inferences, a factfinder could reasonably make that determination.”  In re Welfare of S.M.J., 556 N.W.2d 4, 6 (Minn. App. 1996).  “We are required to view the record in the light most favorable to the determination and assume that the factfinder believed the testimony supporting the determination and disbelieved any contrary evidence.”  Id.  On review of the sufficiency of the evidence, appellate courts will apply the same standard of review to cases heard without a jury as would be applied to cases heard by a jury.  State v. Cox, 278 N.W.2d 62, 65 (Minn. 1979).  “If there is reasonable evidence to support the district court’s findings, [this court] will not disturb them.”  Rogers v. Moore, 603 N.W.2d 650, 656 (Minn. 1999). 

The trustworthiness of a witness’s identification must be judged by the opportunity the witness had for an accurate and deliberate observation while the accused is in the witness’s presence.  State v. Gluff, 285 Minn. 148, 151, 172 N.W.2d 63, 65 (Minn. 1969).  “[A] verdict may be based on the testimony of a single witness no matter what the issue.”  State v. Burch, 284 Minn. 300, 313, 170 N.W.2d 543, 552 (1964).

S.M.T. argues that there was insufficient evidence to prove that he was the person who stole the car.  In support of this argument, he cites a Minnesota Supreme Court case that held that an “eye witness identification made upon fleeting or limited observation at the time of a crime is not reliable and in the absence of corroboration should not be the basis for conviction.”  State v. Spann, 287 N.W.2d 406, 407-08 (Minn. 1979) (emphasis added).  But Spann offers slight, if any, support for S.M.T.’s argument.  Here, Hantoosh’s interaction with the purported buyer of the car was much more extensive than the “fleeting or limited observation” at issue in Spann.  According to Hantoosh’s testimony, he and S.M.T. had a substantial discussion about the car during daylight hours; they engaged in negotiations over price; and they decided to drive together to the bank and drove for some time together toward that destination.  Hantoosh’s ability to observe and identify S.M.T. was neither fleeting nor limited.

Importantly, Hantoosh unequivocally and unhesitatingly identified appellant at trial.  S.M.T. challenges the in-court identification, however, by quoting the testimony of Hantoosh that, “[S]he’s sitting right there . . . .”[1] Indeed, Hantoosh consistently referred to S.M.T. as “she” during trial, and S.M.T. is, in fact, a male.  And although Hantoosh admits to having limited English vocabulary, there was an interpreter at trial.  There is nothing in the record that suggests the translator inaccurately translated Hantoosh’s answers or that the process of translation diminished the accuracy and reliability of the victim’s testimony.  Several factors, however, undermine S.M.T.’s allegations of insufficient evidence.  Importantly, the district court judge, who was able to hear Hantoosh’s testimony and look at S.M.T. simultaneously, noted for the record that Hantoosh had positively identified S.M.T.  The judge was aware both of S.M.T.’s appearance and the fact that S.M.T. had been identified as “she.”  In addition, Hantoosh’s testimony included the following statement about the buyer:  “She looked like a woman.”  And, in describing his thoughts as he agreed to allow S.M.T. to drive the car, Hantoosh stated, “So I—I—well, I thought to myself, well, what could happen, she’s a lady, what could she do, nothing.”  Clearly, the trier of fact is in a far better position to judge the credibility of a witness’s testimony than is an appellate court with only a paper record to review.  The resolution of inconsistencies is a function of the trier of fact, “because it has the opportunity to observe the demeanor of witnesses and weigh their credibility.”  State v. Yang, 627 N.W.2d 666, 672 (Minn. App. 2001) (quoting State v. Lloyd, 345 N.W.2d 240, 245 (Minn. 1984)), review denied (Minn. July 24, 2001); see also Home Mut. Ins. Co. v. Snyder, 356 N.W.2d 780, 783 (Minn. App. 1984) (stating that “[a] trier of fact, with witnesses present in the flesh, with an opportunity to observe their demeanor and apparent candor . . . will be in a vastly better position than an appellate court to decide . . . [a] factual question”).  S.M.T., testifying in his own behalf, admitted to having possession of the car.  The district court rejected the explanation S.M.T. offered as to how he obtained possession of the car.  Further, in testimony that might reasonably be assessed as self-incriminating, the following occurred:

Q.        [By Defense Attorney]:  The man that was on the stand today saying that you negotiated to buy his truck, that you agreed to take it for a test drive and left without his permission, did that happen?

A.        [By S.M.T.]  I’ve never even seen him, just rode that one time.  

 

And later in the testimony of S.M.T.:

The Court:  Ms. [T.], you have to leave at this time.

 

Ms. [T]:  That’s what I was going to —

 

The Court:  Okay, please step outside.

 

[S.M.T.]:  Why do my mom got to leave?

 

Ms. [T]:  I was just telling him to sit up and talk right into the mike, Your honor, that’s all.

 

[S.M.T.]:  And that’s all she said.

 

Ms. [T]:  And that’s all I said.

 

The Court:  No, no.  No, no.  You said “shush” when he admitted to taking the truck.

 

Ms. [T]:  No, I—

 

The Court:  That’s what you said.

 

Ms. [T]:  No, I was trying to say “shush, sit up and—

 

The Court:  Please leave.

 

This exchange was yet another indication of the superior position of the trier of fact in assessing and evaluating the scene being played out before it.

            Regarding the statutory requirement that the use of the car be without permission of the owner, Hantoosh testified that S.M.T. knew that he did not have permission to take the vehicle because S.M.T. had made Hantoosh believe he was going to buy it, and they were on their way to the bank to finish the sale.  The parties had not exchanged money to complete the sale, nor had Hantoosh transferred title.  Therefore, S.M.T. knew that he did not have consent from Hantoosh to take the car.   

S.M.T. next argues that the alibi presented by him shows that the evidence of identity was not sufficient.  We disagree.  “Inconsistencies in the state’s case or possibilities of innocence do not require reversal of a . . . verdict so long as the evidence taken as a whole makes such theories seem unreasonable.”  State v. Ostrem, 535 N.W.2d 916, 923 (Minn. 1995).  It must be assumed that the fact-finder believed the testimony of the prosecution’s witnesses, and disbelieved contrary evidence, including all evidence of an alibi.  See State v. Jones, 556 N.W.2d 903, 913-14 (Minn. 1996) (holding that there was sufficient evidence to find defendant guilty where the fact-finder had taken into consideration all evidence including evidence of an alibi).  The mere production of evidence of an alibi “does not compel a finding to that effect.”  State v. Otten, 292 Minn. 493, 495, 195 N.W.2d 590, 591 (1972).  The weight of such evidence is determined by the fact-finder.  Id.  This court defers to credibility determinations made by the district court.  Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988). 

S.M.T.’s probation officer testified that S.M.T. was not allowed to leave his home except with prior permission, and that on the day in question, he was not at his home from 9:06 a.m. until 6:13 p.m.  When the probation officer went to S.M.T.’s home at 3:00 p.m., he was told that S.M.T. was at the doctor’s office.  Subsequently, the probation officer received a note[2] on Northpoint Health and Wellness Center letterhead, signed by either a nurse or a pharmacist, that S.M.T. had been at Northpoint from 9:15 a.m. until 4:30 p.m.

S.M.T. testified that he had surgery on November 15 and had to pick up prescriptions at the pharmacy.  There is no evidence, however, that the signer of the note was with S.M.T. throughout his surgery, or even before or after the surgery.  Also, there is no indication in the record that the person who signed the note was privy to all of S.M.T.’s activities during the day.  Nor did S.M.T. produce evidence that his mother was actually with him at Northpoint, or that she could accurately verify his whereabouts from 9:06 a.m. until 6:13 p.m. that day.   

The district court specifically found that S.M.T.’s  testimony was not credible and that he did not believe anything appellant had said.  In contrast, the district court stated that Hantoosh’s testimony was consistent with something that could have happened, and it is what the district court believed did happen in this case.  As already noted, the trier of fact is in the best position to judge the credibility of witnesses and evidence, and we will not disturb that credibility determination on appeal.  The evidence was sufficient[3] to show guilt beyond a reasonable doubt.

II.

S.M.T. next argues that his waiver of the fundamental right to a jury trial was inadequate.  The right to a jury trial is fundamental and must be personally waived by the defendant.  State v. Halseth, 653 N.W.2d 782, 786 (Minn. App. 2002).  Because appellant was charged with a crime for which a guilty verdict is punishable by incarceration, he had a right to trial by jury.  Minn. R. Crim. P. 26.01, subd. 1(1)(a); State v. Tlapa, 642 N.W.2d 72, 74 (Minn. App. 2002), review denied (Minn. June 18, 2002).  Regarding the adequacy of a jury trial waiver, this court has held: “The waiver requirement of Rule 26.01 mandates only a relatively painless and simple procedure to protect a basic right.  Just as the police are required to advise an arrested individual of his rights, so must the court comply with Minn. R. Crim. P. 26.01.”  Tlapa, 642 N.W.2d at 74 (quoting State, City of Tracy v. Neuman, 392 N.W.2d 706, 708-09 (Minn. App. 1986)).  This rule must be strictly construed in order to ensure the waiver was intelligent and voluntary.  State v. Sandmoen, 390 N.W.2d 419, 423 (Minn. App. 1986).  When applying adult criminal rules to an EJJ proceeding, a court should spend as much time, or more time, with the juvenile as it would with an adult in order to satisfy itself that the waiver of a fundamental right is proper and that the juvenile understands the consequences of such a waiver.  In re Welfare of M.E.M., 674 N.W.2d 208, 213-14 (Minn. App. 2004).  The court need not make a “searching” inquiry, but the court should be certain that the defendant is adequately informed of his rights.  Id. at 213. 

Here, the record reflects that S.M.T. understood the factors involved in waiving his right to a jury trial and stated that he was under no pressure from counsel to waive his rights.  He and his counsel had discussed waiving his right to a jury trial, and S.M.T. agreed that they talked at length about the “pros and cons” of having a bench trial, as opposed to a jury trial.  S.M.T. also stated that he understood that in a jury trial a panel of 12 jurors would have to unanimously decide the case and that by waiving this right, the judge would be making that decision.  Additionally, because S.M.T. has limited reading skills, the court read the text of the written waiver to him.  After the judge read the waiver, S.M.T. stated that he had no further questions regarding the waiver and that he understood it.  Then he signed the waiver.  We conclude that the waiver of a jury trial was valid.[4]

Affirmed.