This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).

STATE OF MINNESOTA
IN COURT OF APPEALS
C4-98-1283

State of Minnesota,
Respondent,

vs.

Antonio Darrail Burton,
Appellant.

Filed August 3, 1999
Affirmed in part, reversed in part, and remanded
Short, Judge

Hennepin County District Court
File No. 96089251

Mike Hatch, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Amy Klobuchar, Hennepin County Attorney, Mary M. Lynch, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

John M. Stuart, State Public Defender, Leslie J. Rosenberg, Special Assistant State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)

Considered and decided by Short, Presiding Judge, Peterson, Judge, and Parker, Judge.[*]

U N P U B L I S H E D   O P I N I O N

SHORT, Judge

A jury convicted Antonio Darrail Burton on multiple counts of first-degree criminal sexual conduct, first-degree aggravated robbery, and first-degree burglary for breaking into the apartment of three women, holding them at knifepoint, raping two of them, and taking their possessions. The trial court sentenced Burton to an aggregate sentence of 464 months. On appeal from conviction and sentencing, Burton argues: (1) the evidence is insufficient to sustain the conviction; (2) the trial court abused its discretion in evidentiary rulings; (3) he was denied a fair trial due to the trial court's refusal to excuse a venire member for cause, prosecutorial misconduct, and ineffective assistance of counsel; and (4) the trial court abused its discretion in sentencing him. We affirm in part, reverse in part, and remand.

D E C I S I O N

I.

Evidence is sufficient to support a conviction if, given the facts in the record and any legitimate inferences taken from those facts, a jury could reasonably conclude the defendant committed the crime charged. State v. Merrill, 274 N.W.2d 99, 111 (Minn. 1978). We do not retry the facts, but instead view the evidence in the light most favorable to the verdict and assume the jury believed the state's witnesses and disbelieved any contrary evidence. Id. Although a conviction based solely on circumstantial evidence merits closer scrutiny, a jury is normally in the best position to evaluate circumstantial evidence and its verdict is entitled to due deference. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).

Burton argues insufficient evidence existed to support his conviction because the DNA evidence was unreliable. But the record demonstrates: (1) Burton and his co-defendants broke into the apartment of three women; (2) the men forced the women out of their beds at knifepoint and made them lie together on the floor; (3) one man covered the women's heads with a comforter; (4) the man then anally and vaginally raped one of the women while she was on her hands and knees, and twice anally raped a woman who cried out that she was a virgin; (5) BCA testing and separate re-testing implicated Burton as the source of DNA on a vest taken from one woman's bedroom and discarded in a recycling bin; (6) Burton told a third party that he had sex with the women, and detailed that he had sex with one woman on a comforter while she was on her hands and knees and he had sex with another woman who was a virgin; and (7) Burton was stopped by police in the car he stole from one of the women. Given these facts, the evidence is sufficient to establish, beyond a reasonable doubt, that Burton was guilty of first-degree criminal sexual conduct. See State v. Bliss, 457 N.W.2d 385, 390-91 (Minn. 1990) (concluding in all cases, jury determines credibility and weight given to testimony of individual witnesses); State v. Pieschke, 295 N.W.2d 580, 584 (Minn. 1980) (stating credibility of, conflicts in, and inconsistencies in testimony are exclusive function of jury).

II.

Rulings on evidentiary matters rest within the sound discretion of the trial court and will not be reversed absent an abuse of that discretion which results in prejudice. State v. Kennedy, 585 N.W.2d 385, 389 (Minn. 1998). A statement of a witness offered against a defendant is not hearsay and is admissible when the defendant manifests an adoption of the statement or belief in its truth. Minn. R. Evid. 801(d)(2)(B). However, the adoption of such a statement must be unequivocally manifested and clearly show the defendant intended to adopt the statement as his own. Village of New Hope v. Duplessie, 304 Minn. 417, 425, 231 N.W.2d 548, 553 (1975).

Burton argues the trial court abused its discretion by admitting testimony of his nonverbal reactions while his co-defendants and a third party discussed the crime. But the record demonstrates: (1) the third party asked Burton if the women let him have sex with them and then take their stuff, and Burton started laughing, and (2) Burton's co-defendants called him stupid either for raping the women or for discussing the crime, and Burton did not respond. Under these circumstances, we cannot say the trial court abused its discretion in admitting the adoptive statements. See State v. Flores, ___ N.W.2d ___, ___, 1999 WL 395891, at *7 (Minn. June 17, 1999) (concluding defendant who actively participated in discussion of crime and did not indicate he disagreed or denied another's statement adopted admission); State v. Rediker, 214 Minn. 470, 480, 8 N.W.2d 527, 532 (1943) (concluding unresponsiveness to accusations made directly to defendant are admissible adoptive admissions and jury determines whether circumstances are such that defendant would have denied them had he been innocent).

III.

Burton further argues he is entitled to a new trial due to the trial court's refusal to excuse a venire member for cause, prosecutorial misconduct, and ineffective assistance of counsel. But Burton has not shown that the challenged venire member was subject to challenge for cause and that actual prejudice resulted from the failure to dismiss. See State v. Stufflebean, 329 N.W.2d 314, 317 (Minn. 1983) (defining burden on appeal). After the venire member expressed that she has an emotional reaction to crimes against women, the trial court questioned the venire member on two separate occasions on whether she could set aside her emotions for the trial. Although the juror had reservations about being impartial, she indicated she would do her best to set aside her emotions and evaluate the evidence objectively. Under these circumstances, the trial court did not abuse its discretion in refusing to remove the venire member for cause. See State v. Graham, 371 N.W.2d 204, 206-07 (Minn. 1985) (concluding trial court evaluates venire member's credibility and has broad discretion in determining whether to grant challenge for cause). Moreover, Burton has not demonstrated he was prejudiced by the trial court's refusal to remove the venire member for cause. See Stufflebean, 329 N.W.2d at 317-18 (concluding defendant must show more than exhaustion of all peremptory challenges and must demonstrate actual bias or prejudice); see also State v. Barlow, 541 N.W.2d 309, 312 (Minn. 1995) (concluding when jury that sits is impartial, fact that defendant had to use peremptory challenge to achieve that result does not show prejudice).

As to his pro se claims of ineffective assistance of counsel and prosecutorial misconduct, Burton failed to explain or identify any facts to support these allegations. See Melina v. Chaplin, 327 N.W.2d 19, 20 (Minn. 1982) (concluding issues not briefed on appeal are waived). After a careful review of the record, we conclude those claims are without merit.

IV.

The decision to depart from sentencing guidelines rests within the trial court's discretion and will not be reversed absent a clear abuse of that discretion. Rairdon v. State, 557 N.W.2d 318, 326 (Minn. 1996). Burton argues the trial court abused its discretion by: (1) upwardly departing from the guidelines; (2) imposing consecutive sentences; and (3) sentencing him twice for first-degree burglary.

First, the trial court doubled the presumptive sentences for Burton's convictions of first-degree burglary against the first woman, first-degree criminal sexual conduct against the second woman, and first-degree criminal sexual conduct against the third woman. The trial court discussed, and the record reflects, that: (1) the women were wakened at knife point in their apartment by four men who threatened to kill them; (2) two of the women were repeatedly raped; (3) the women were forced to lie together during the rapes, and hear and feel the rapes of their roommates; and (4) Burton's co-defendants were present during the rapes. Given these facts, the trial court did not abuse its discretion by doubling the presumptive sentences for Burton. See State v. Mortland, 399 N.W.2d 92, 95 (Minn. 1987) (concluding multiple penetration and threats to kill victims were aggravating circumstances justifying upward durational departure); State v. Back, 341 N.W.2d 273, 277 (Minn. 1983) (noting invasion of victim's zone of privacy supports upward durational departure).

Second, the trial court imposed consecutive sentences for Burton's convictions of first-degree burglary, first-degree aggravated robbery against the first woman, first-degree criminal sexual conduct against the second woman, and first-degree criminal sexual conduct against the third woman. Because the crimes involved multiple victims and aggravating factors, the trial court did not abuse its discretion in imposing consecutive sentences. See Minn. Sent. Guidelines II.F (stating "[m]ultiple current felony convictions for crimes against persons may be sentenced consecutively to each other"); State v. Cermak, 365 N.W.2d 238, 239 n.1 (Minn. 1985) (concluding consecutive sentencing was permitted without departing because there were five different victims); State v. Butterfield, 555 N.W.2d 526, 533 (Minn. App. 1996) (concluding severe aggravating circumstances such as multiple penetration, threats to kill victim, and degradation of victim justified consecutive sentences), review denied (Minn. Dec. 17, 1996).

And third, the trial court sentenced Burton for first-degree burglary in violation of Minn. Stat. § 609.582, subd. 1(a) (1996) and first-degree burglary in violation of Minn. Stat. § 609.582, subd 1(c) (1996). But a defendant cannot be convicted and punished twice for the same offense based on the same act or course of conduct. See Minn. Stat. §§ 609.035, subd. 1 (1996) (stating when conduct constitutes more than one offense, defendant can be punished only for one offense), 609.04, subd. 1 (1996) (stating defendant may be convicted for crime charged or included offense, but not both); State v. Hodges, 386 N.W.2d 709, 710 (Minn. 1986) (concluding burglarious entry of one dwelling justifies only one burglary conviction). Because Burton was adjudicated on two counts of first-degree burglary in violation of Minn. Stat. § 609.04, subd. 1, one of the adjudicated burglary convictions must be vacated. See Walker v. State, 394 N.W.2d 192, 198 (Minn. App. 1986) (vacating two burglary convictions when defendant had three adjudicated convictions for first-degree burglary), review denied (Minn. Nov. 26, 1986). Accordingly, we remand to the trial court for resentencing Burton on one of the two first-degree burglary convictions. See State v. Prudhomme, 303 Minn. 376, 380, 228 N.W.2d 243, 246 (1975) (stating trial court cannot "increase the penalty for any of the offenses on which it will sentence").

Affirmed in part, reversed in part, and remanded.

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