This opinion will be unpublished and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

A06-263

 

State of Minnesota,

Respondent,

 

vs.

 

Yaco Eaton,

Appellant.

 

Filed May 29, 2007

Affirmed

Kalitowski, Judge

 

Hennepin County District Court

File No. 05037670

 

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

 

Michael O. Freeman, Hennepin County Attorney, Linda M. Freyer, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

 

John M. Stuart, State Public Defender, Lawrence Hammerling, Deputy Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)

 

            Considered and decided by Ross, Presiding Judge; Kalitowski, Judge; and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

            Appellant Yaco Eaton was convicted of theft of a motor vehicle and now challenges his conviction, restitution order, and sentence arguing that the district court (1) lacked sufficient evidence to support the conviction; (2) lacked sufficient evidence to support the restitution order; and (3) erred by conducting a bifurcated trial because it did not have the inherent authority to do so.  We affirm.   

D E C I S I O N

            Appellant was arrested driving a vehicle reported stolen three days earlier by its owner, Timothy Garner.  Garner was giving a ride to two individuals he picked up on the side of the road.  When Garner left the vehicle for a short time, his passengers drove away and Garner immediately reported the vehicle as stolen.

I.

            Garner was not able to identify appellant as the person who drove away with his car.  And appellant argues that the district court erred by concluding that the record contains sufficient evidence to prove beyond a reasonable doubt that he knew or should have known that he did not have the consent of the owner to drive the vehicle.  We disagree.

            In considering a claim of insufficient evidence, our review is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, was sufficient to allow the jurors to reach the verdict that they did.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  “A defendant bears a heavy burden to overturn a jury verdict.”  State v. Vick, 632 N.W.2d 676, 690 (Minn. 2001).  The jury’s verdict will not be disturbed if the jury, acting with due regard for the presumption of innocence and for the requirement of proof beyond a reasonable doubt, could reasonably conclude that the defendant was guilty of the charged offense.  Bernhardt v. State, 684 N.W.2d 465, 476-77 (Minn. 2004).  “Assessing the credibility of a witness and the weight to be given a witness’s testimony is exclusively the province of the jury.” State v. Mems, 708 N.W.2d 526, 531 (Minn. 2006).  In reviewing a jury verdict, we assume that “the jury believed the state’s witnesses and disbelieved contrary evidence.”  State v. Asfeld, 662 N.W.2d 534, 544 (Minn. 2003).

            Appellant was convicted of theft of a motor vehicle in violation of Minn. Stat. § 609.52, subd. 2(17) (2004).  To prove this charge, the state must show that the defendant (1) took or drove a motor vehicle; (2) without the owner’s consent or the consent of an authorized agent of the owner; (3) knowing or having reason to know that the owner or an authorized agent of the owner did not consent to the use of the motor vehicle.  Id.  Appellant challenges the sufficiency of the evidence regarding the element of intent, arguing that his conviction cannot stand because the state relied on circumstantial evidence to prove intent and appellant provided two rational hypotheses inconsistent with guilt.

            Intent generally must be proved by circumstantial evidence.  State v. Andrews, 388 N.W.2d 723, 728 (Minn. 1986).  Circumstantial evidence “is entitled to the same weight as any evidence so long as the circumstances proved are consistent with the hypothesis that the accused is guilty and inconsistent with any rational hypothesis except that of guilt.”  State v. Bias, 419 N.W.2d 480, 484 (Minn. 1988).  “[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).

            Appellant argues that the testimony of his girlfriend and his own statement to police provide rational hypotheses other than guilt.  We disagree.

            While being interrogated after his arrest, appellant stated that he got the car from a person named Tony who got the car from a person named Chris.  Appellant stated that Tony had gotten cars from Chris previously in exchange for crack cocaine.  Appellant stated that he had not compensated Tony for use of the vehicle and had not made any arrangements to return the vehicle to Tony.  A police sergeant testified at trial that cars traded for crack cocaine are usually stolen.                      

            Appellant’s girlfriend was his sole witness and she contradicted his statements to police.  She testified that the owner of the vehicle, Garner, went to the home she shares with appellant so that she could perform oral sex on him in exchange for money.  She testified that appellant met Garner during this visit and that, although Garner drove the vehicle to the house, he left on foot, leaving the keys to the vehicle in the house and the vehicle parked behind the house.  She further testified that Garner gave her permission to keep the vehicle, and that she had given appellant permission to drive it.

            Juries are free to reject implausible theories offered by a defendant.  State v. Church, 577 N.W.2d 715, 719 (Minn. 1998).  Here, the jury reasonably weighed the credibility of the witnesses and found appellant’s theory implausible.  The jury’s verdict is supported by the record, because appellant’s statement to police that he obtained the use of the vehicle without compensation and without arrangements to return the vehicle is not rational.  Even if the jury believed that appellant obtained the vehicle from Tony, they could make the inference that appellant knew or should have known that the vehicle was stolen in light of the police sergeant’s testimony that cars traded for crack cocaine are usually stolen.  Moreover, this hypothesis becomes even less plausible when considered in light of appellant’s girlfriend’s contradictory testimony that appellant was present at her home when Garner left his vehicle there and that she gave appellant permission to drive it.

            Because appellant’s statement to police after his arrest contradicts his sole witness’s testimony regarding how he came to be driving the stolen vehicle and the jury is in the best position to weigh credibility, there was sufficient evidence to infer that appellant knew or should have known that he did not have permission to use the vehicle. We conclude that the record contains sufficient evidence to support appellant’s conviction.

II.

            The district court ordered appellant to pay restitution totaling $4,842.31 to Garner for damage to the vehicle, impound fees, the loss of a cell phone that was in the vehicle when it was stolen, and the cost of unauthorized cell phone use after the vehicle was stolen.  Appellant argues the district court erred by concluding that the record contains sufficient evidence to support its restitution order.

            District courts have broad discretion in ordering restitution and we review a restitution order for an abuse of discretion.  State v. Tenerelli, 598 N.W.2d 668, 671, 672 (Minn. 1999).

            In Minnesota, the criteria and procedure for ordering restitution are defined by statute.  Minn. Stat. §§ 611A.04, .045 (2004).  An appellant has a statutory right to challenge a restitution order, but he must properly invoke that right by following the given procedure which includes a memorandum challenging restitution and a detailed affidavit setting forth the bases and theories of the challenge.  Minn. Stat. § 611A.045, subd. 3. 

            In State v. Thole, 614 N.W.2d 231 (Minn. App. 2000), we addressed the statutory requirements and stated that “the affidavit is both the sole vehicle by which the offender can meet the burden of pleading, and an essential element of the offender’s case required to meet the burden of production.”  Id. at 235.

            Here, appellant acknowledges that he never filed an affidavit challenging the restitution order.  Following Thole, we conclude that appellant has waived challenges to the restitution order by failing to file an affidavit.  We therefore affirm the district court’s restitution order.

III.

            The district court conducted a bifurcated trial.  After the jury had convicted appellant, it reconvened to determine if appellant met the conditions of sentencing under the career-offender statute, Minn. Stat. § 609.1095 (2004).  After the parties stipulated that appellant had five or more previous felony convictions and the offense he had just been convicted of was a felony, the jury determined that appellant had engaged in a pattern of criminal conduct and met the conditions of sentencing under the career-offender statute.

            Appellant now challenges his sentence under the career-offender statute, arguing that the district court did not have inherent judicial authority to craft sentencing procedures to comply with Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004).  We review de novo constitutional arguments based on Blakely.  State v. Hagen, 690 N.W.2d 155, 157 (Minn. App. 2004).  

            Appellant was sentenced as a career offender under Minn. Stat. § 609.1095, subd. 4, providing for an aggravated durational departure from the presumptive sentence “if the judge finds and specifies on the record” that the offender has at least five prior felony convictions and “that the present offense is a felony that was committed as part of a pattern of criminal conduct.”  Id.

            In 2005, the statute was amended to replace the words “judge finds and specifies” with “the factfinder determines” in accord with the Blakely requirement that factors used to enhance a sentence be either found by a jury or admitted by the defendant.  2005 Minn. Laws. ch. 136, art. 16, § 12, at 1118-19.  But the amendment became effective on August 1, 2005, and applies only “to crimes committed on or after that date.”  Id. at 1119.  Thus, the amended version of the statute does not apply to appellant’s June 2005 crime.

            In State v. Chauvin, the Minnesota Supreme Court declared that district courts have inherent judicial authority to impanel sentencing juries where the judicial fact-finding portion of the Minnesota Sentencing Guidelines violates the Sixth Amendment and the legislature has not provided for an alternative process to effectuate the intent of the guidelines.  State v. Chauvin, 723 N.W.2d 20, 27 (Minn. 2006).

            This court recently analyzed the applicability of Chauvin to a defendant like appellant, whose crime was committed after the legislature amended the career-offender statute, but prior to its effective date.  In State v. Boehl, 726 N.W.2d 831 (Minn. App. 2007), review denied (Minn. Apr. 17, 2007), we held that Chauvin provides inherent judicial authority to impanel a sentencing jury even after the legislature passed the 2005 amendments, as long as those amendments are not applicable to the case before the court, leaving the court without a statutory mechanism for sentencing in compliance with Blakely.  Such is the case here.

            Following Chauvin and Boehl, we conclude the district court did not err in impaneling a sentencing jury.

            Affirmed.