Opinion
No. C1-95-2070.
Filed August 13, 1996.
Appeal from the District Court, Anoka County, File No. K9-95-1423.
Hubert H. Humphrey III, Attorney General, (for Respondent).
Robert M.A. Johnson, Anoka County Attorney, Marcy S. Crain, Assistant County Attorney, (for Respondent).
John M. Stuart, State Public Defender, Ann McCaughan, Assistant Public Defender, (for Appellant).
Considered and decided by Amundson, Presiding Judge, Norton, Judge, and Peterson, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1994).
UNPUBLISHED OPINION
This is a direct appeal from a conviction of possessing or transferring stolen property valued in excess of $500 in violation of Minn. Stat. §§ 609.53, subd. 1 and 609.52, subd. 3(3)(a) (1994). Appellant contends the record contains insufficient evidence to support his conviction. He also argues the trial court erred when it admitted into evidence materials to make fictitious identification cards that were seized during a search of appellant's home. In his supplemental pro se brief, appellant also argues that this court must set aside his conviction because of prosecutorial misconduct, ineffective assistance of trial counsel, and because the absence of minorities in the jury pool violated his constitutional rights. We affirm.
FACTS
On September 18, 1994, Bonnie Lindberg discovered that her purse was missing from her car. Her purse contained her checkbook and identification cards. On October 3, 1994, a female, later identified as Christine Baker, purchased a Pioneer 50-inch big-screen television set, Model SD-P5071K, and a four-year warranty from the Best Buy store in Rochester using one of Lindberg's stolen checks. The check was written in the amount of $2,716.59, which included tax. According to Lindberg, the handwriting and signature on the check were not hers.
Four Best Buy employees helped Baker load the TV onto the top of a yellow van. Sean Hukriede, a Best Buy loss prevention supervisor, identified appellant Brian Lee Nelson as the driver of the yellow van. By stipulation, appellant admitted he was at the Best Buy store in Rochester on October 3, 1994, at about 9:00 p.m. and that he helped Hukriede load a TV into a van outside the store.
Based on his conversation with Baker, Hukriede became suspicious of her and appellant. He wrote down the license number on the van and a description of Baker and appellant as they drove off. He verified with a cashier that she had checked Baker's identification when she paid for the TV. At trial, the state introduced the check Baker used to pay for the TV and testimony showing that marks on the check indicate that the cashier followed standard procedures and looked at photo identification when Baker purchased the TV using Lindberg's check.
Within a short time, appellant asked Robert Carlson and John Kwakenat if they were interested in buying a 50-inch TV for Sharkey's, a new bar and restaurant they were opening. After some negotiations, appellant sold the TV to them for $1,000. Kwakenat and his brother picked up the TV, which was still in the original packing materials, from the garage of the house where appellant was living. Kwakenat, his brother, and appellant drove to Sharkey's Bar with the TV, unloaded it, and plugged it in. After verifying that the TV was in excellent working order, Kwakenat paid appellant $1,000 in cash.
During the execution of a search warrant at Sharkey's Bar, police seized a Pioneer 50-inch big-screen TV, with a model number of SD-P5071K. At trial, appellant stipulated that Exhibit 14 contained photographs of the TV seized from Sharkey's Bar.
Carlson and Kwakenat both identified appellant from a photo lineup as the person who sold them the TV set; they both ultimately pleaded guilty to possessing stolen property.
Appellant was present when Sgt. Gregory Lind of the St. Paul Police Department executed a warrant at appellant's mother's home, where appellant resided. Lind seized pieces of identification belonging to more than nine different individuals, a loaded Polaroid camera, packages of "Super Glue," a razor blade, a blue cloth backdrop, two Polaroid photographs of appellant taken against a blue backdrop, five Polaroid photographs of Christine Baker taken against a blue backdrop, and another Polaroid photograph showing the same outfit Baker was wearing in the other photos but with the head cut out of the photograph. The trial court admitted these items as evidence at trial, over the objection of appellant.
In the course of his investigation, Lind also interviewed Misty Wandrow, appellant's ex-girlfriend. Wandrow testified at trial that appellant had told her he and Baker had a big-screen TV that he was going to sell for $1,000. She testified that appellant had told her that Baker "was in California and she wouldn't be able to testify against him." She testified that appellant told her that he would "probably be able to win the case since she [Baker] can't testify."
Appellant did not testify at trial, nor did he present any evidence. After deliberating for 63 minutes, the jury found appellant guilty as charged.
DECISION
1. Appellant contends the record contains insufficient evidence to sustain his conviction. In reviewing a claim of sufficiency of the evidence, we are limited to ascertaining whether, given the facts in the record and any legitimate inferences that can be drawn from them, a jury could reasonably find the defendant guilty of the charged offense. State v. Pierson, 530 N.W.2d 784, 787 (Minn. 1995). We view the evidence in the light most favorable to the jury's verdict, assuming that the jury believed the state's witnesses and disbelieved any evidence to the contrary. State v. Atkins, 543 N.W.2d 642, 646 (Minn. 1996).
First, appellant contends there was not sufficient evidence to show that the TV sold to the owners of Sharkey's bar was the same TV that Baker stole from Best Buy store with Bonnie Lindberg's forged check. We disagree. Contrary to appellant's claim, the state did not have to prove identification of the TV by matching serial numbers. The record contains enough supplementary evidence to sustain the identification of the TV. The 50-inch Pioneer TV that Baker and appellant removed from Best Buy had the same model number as the 50-inch Pioneer TV appellant later sold to Sharkey's owners. The record contains a receipt from Best Buy with the model number and Hukriede's identification of appellant and his testimony identifying the TV seized from Sharkey's as being the same model as the TV Baker and appellant removed from Best Buy. In addition, the record contains evidence that appellant participated with Baker in a scheme of using false identification. The jury had ample evidence from which it could find that the TV seized from Sharkey's was the same TV stolen from Best Buy and that appellant knew that Baker purchased the TV using false identification and a forged check.
Second, appellant argues that the state failed to prove that he possessed the TV or transferred it to the owners of Sharkey's, because the conviction was based on the uncorroborated testimony of accomplices.
A conviction cannot be had upon the testimony of an accomplice, unless it is corroborated by such other evidence as tends to convict the defendant of the commission of the offense, and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof.
Minn. Stat. § 634.04 (1994). The state does not contest appellant's claim that the owners of Sharkey's were his accomplices. Instead, the state notes that Misty Wandrow's testimony, combined with the testimony of Hukriede, corroborate the accomplice testimony. We agree.
Finally, appellant contends that the state failed to prove that he knew or should have known that the TV was stolen. See Minn. Stat. § 609.53, subd. 1 (1994) (elements of possessing/transferring stolen property include "knowing or having reason to know the property was stolen * * *"). We disagree. By his own admission, appellant was at the Best Buy store the night the TV set was stolen.
Hukriede positively identified appellant as the individual who helped load the stolen TV onto the top of a van and who drove off in the van with Baker. According to Wandrow and the bar owners, appellant sold the new $2,700 TV for $1,000. Finally, the state presented evidence indicating Baker and appellant had been involved in creating false identification cards at appellant's residence. This record contains sufficient evidence that appellant knew or had reason to know that the TV he sold to Sharkey's was stolen. The record contains sufficient evidence to sustain appellant's conviction for possession/transfer of stolen property.
2. Appellant contends the trial court committed reversible error when it admitted evidence that he possessed stolen identification cards and materials and equipment needed to make false identification cards. He argues that this evidence is not relevant and is highly prejudicial. In his pro se brief, appellant argues that this evidence is Spreigl evidence of another crime or bad act.
The trial court determined that the seized evidence was relevant to show "a connection between the two of them, [appellant and Baker], and again to show guilty knowledge."
Appellant argues that because he was in a picture "with Baker," the jury delivered a verdict of guilty by association. Appellant has mischaracterized the evidence. No picture exists of appellant and Baker together, but instead there were separate identification-type Polaroid pictures of appellant and Baker. Baker's head had been cut out of one of her pictures, indicating that it had been used to produce a false identification card. As the trial court noted, this evidence was certainly relevant to the issue of whether appellant had knowledge that the TV was stolen:
The tie would be the fact that allegedly Christine Baker is out there in the company of [appellant], allegedly, and she is using a fake ID, and in his house, [appellant] * * * has got materials for making such fake IDs.
Because the evidence seized from appellant's residence shows that he knew Baker and knew of her involvement in the manufacture of false identification, the evidence is probative of appellant's knowledge that Baker had stolen the TV. See Minn.R.Evid. 401, cmt. (threshold determination of relevance is whether evidence tends to prove material fact at issue, tends to make a fact more probable, or supports reasonable inference regarding existence of material fact). The probative value of this evidence greatly outweighs the danger of any "unfair" prejudicial effect of this evidence. See Minn.R.Evid. 403 (court may exclude relevant evidence if its "probative value is substantially outweighed by the danger of unfair prejudice").
We now turn to the Spreigl issue. Evidence of other crimes, wrongs, or acts is generally not admissible to prove the character of a defendant or that he acted in conformity with that conduct. Minn.R.Evid. 404(b); State v. Titworth, 255 N.W.2d 241, 244 (Minn. 1977).
The trial court determined, inter alia, that the seized evidence was not Spreigl evidence, because it was closely linked to the crime charged. Evidence relating to other crimes that the defendant may have committed is not considered Spreigl evidence if the evidence is "necessarily, but incidentally, part of the substantive proof of the [charged] offense." State v. Roy, 408 N.W.2d 168, 171 (Minn.App. 1987) (citing State v. Salas, 306 N.W.2d 832, 836-37 (Minn. 1981)), review denied (Minn. July 22, 1987). Here, the evidence includes ID-type pictures of Baker and appellant and is probative of appellant's relationship with Baker and his knowledge as an accomplice that the TV he helped Baker take from Best Buy was stolen, because Baker used a fake ID to verify the purchase. Although we consider this admissibility issue a close call, we note that, because the evidence is relevant to establish appellant knew the TV was stolen, the evidence also meets the test for admission under State v. Spreigl, 272 Minn. 488, 491, 139 N.W.2d 167, 169 (1965). The trial court did not abuse its discretion in admitting the seized evidence. See State v. Ture, 353 N.W.2d 502, 515 (Minn. 1984) (rulings involving the relevancy of evidence are generally left to sound discretion of trial court).
3. In his pro se brief, appellant makes several arguments to support a claim that he was denied the effective assistance of counsel. But "the appropriate way to challenge ineffective assistance of * * * counsel is to seek a postconviction hearing before appeal." State v. Fratzke, 450 N.W.2d 101, 102 n. 3 (Minn. 1990). A postconviction hearing develops a record to afford proper review of the appellant's claims. See Harris v. State, 470 N.W.2d 167, 169 (Minn.App. 1991). Appellant did not seek posttrial relief, but instead seeks to raise this issue for the first time on a direct appeal from the judgment of conviction. The record before us does not support appellant's claim.
To prove ineffective assistance of counsel, appellant must show that his counsel's representation "fell below an objective standard of reasonableness." Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (quoting Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 2064 (1984)). Additionally, he must show "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. (quoting Strickland, 466 U.S. at 694, 104 S.Ct. at 2068).
Appellant argues that his attorney should have challenged the admission of the TV on relevance grounds, because there was no proof it was the TV stolen from Best Buy. He also contends his attorney committed unprofessional error when he failed to object to Sgt. Lind's characterization of the TV seized from Sharkey's as being the TV "stolen" from Best Buy. These claims have no merit.
The record contains documentary evidence and testimony from various witnesses demonstrating that the TV seized at Sharkey's was the same TV stolen from Best Buy. In addition, appellant's attorney aggressively challenged the connection between the seized TV and the TV taken from Best Buy.
Next, appellant contends his counsel's pretrial preparation fell below the standards of reasonableness, because he failed to discover that the materials seized from appellant's residence included a stolen ID. Thus, appellant contends that his attorney should have challenged the admission of this evidence on grounds it was Spreigl evidence of the crime of possession of stolen property. We disagree. As we concluded above, the stolen TV was not Spreigl evidence, because it was closely linked to the charged crime.
Appellant also claims his counsel's representation was ineffective and unreasonable, because he allowed a photographic lineup into evidence, containing a "mug shot" of appellant from a prior crime. He contends the lineup prejudiced the jury against him. But appellant's attorney later objected and had the lineup removed and excluded from the evidence sent with the jury during their deliberations. Appellant's mere allegation that the line-up photographs were on the prosecutor's table and within the view of the jury during the trial does not demonstrate actual prejudicial effect. See Harris, 470 N.W.2d at 169 (postconviction hearing develops a record to afford proper review). Further, with the overwhelming evidence of guilt here, appellant has failed to demonstrate a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Gates, 398 N.W.2d at 561 (quoting Strickland, 466 U.S. at 694, 104 S.Ct. at 2068)).
4. Appellant contends that the prosecutor knew that the TV purchased from Best Buy was not the same TV seized from Sharkey's, but nevertheless presented it as the same TV. This argument appears to refer to the fact that the prosecutor did not identify the TV by use of the serial number. The record contains no evidence that the TV from Best Buy had a different serial number than the one seized from Sharkey's or that the prosecutor otherwise suppressed evidence that would support appellant's claim. It was appropriate for the prosecutor to use the make and model number of the TV, in addition to other facts, to show that appellant received the TV Baker had stolen from Best Buy and within weeks sold it to Sharkey's for a ridiculously low price.
Appellant's claim of prosecutorial misconduct is without merit.
5. Finally, appellant, who is Hispanic and was tried in Anoka County, contends that the absence of minorities in the jury pool violated his constitutional rights. He has presented no other facts to support his claim. This evidence is insufficient to meet appellant's burden to show a prima facie case of "systematic exclusion" of Hispanics from the jury pool. See State v. Williams, 525 N.W.2d 538, 542-43 (Minn. 1994) (holding individual alleging state impermissibly excluded members of his race from jury pool must demonstrate "the underrepresentation was the result of a `systematic exclusion' of the group in question from the jury selection process" for jury panel after panel "over a significant period of time").
Affirmed.