STATE OF MINNESOTA IN COURT OF APPEALS

STATE OF MINNESOTA
IN COURT OF APPEALS
C2-97-1854
State of Minnesota,Respondent,

vs.

Jeremy John Janshen,
Appellant.

Filed June 2, 1998
Affirmed Davies, Judge
Washington County District CourtFile No. K597483

Hubert H. Humphrey III, Attorney General, 1400 NCL Tower, 445 Minnesota St., St. Paul, MN 55101 (for respondent)

Richard D. Hodsdon, Acting Washington County Attorney, Eric C. Thole, Assistant County Attorney, Washington County Government Center, 14900 61st St. N., Stillwater, MN 55082 (for respondent)

Steven P. Russett, Assistant State Public Defender, 875 Summit Ave., Room 371, St. Paul, MN 55105 (for appellant)

Considered and decided by Crippen, Presiding Judge, Davies, Judge, and Harten, Judge.

U N P U B L I S H E D O P I N I O N DAVIES, Judge
Appellant challenges the sufficiency of evidence offered to support his conviction of first-degree arson. We affirm.

FACTS In October 1997, fire destroyed Phillip Johnson's mobile home. After the fire, investigators discovered that several guns were missing from the home. Appellant Jeremy John Janshen was charged with first-degree arson in connection with the blaze. The state's evidence included the following testimony:
(1) Antonio Rice testified that appellant visited him at his home a few hours before the fire and asked him if he wanted to "jack" (burglarize) some nearby homes. Rice declined, and appellant left. The next day, Rice saw appellant at Chris Armstrong's home, where appellant boasted about having several stolen guns to sell. The following weekend, appellant showed Rice and Armstrong an old British rifle he said he had stolen. Appellant also admitted burning down Johnson's home by turning on the gas.

(2) Cassandra Schmeig testified that appellant told her that he had "been doing some bad things lately * * * like fires and stuff." Appellant told Schmeig that he was selling some guns, but would not tell her where he obtained them.

(3) Vincent Killen and Christeen Rewey testified that appellant told them he had stolen guns from Johnson's home and burned it down by turning on the gas and lighting a match because his accomplice had not worn gloves and might have left fingerprints.

The jury found appellant guilty of first-degree arson. He was sentenced to six years and two months in prison. This appeal followed.

D E C I S I O N Appellant argues that the state failed to corroborate his self-incriminating admissions. See Minn. Stat. § 634.03 (1996) (confession is insufficient to warrant conviction without evidence that charged offense has been committed); State v. McLarne, 128 Minn. 163, 167-69, 150 N.W. 787, 789 (1915) (reversing arson conviction when only evidence of defendant's guilt was his uncorroborated admission); see also State v. Sellers, 507 N.W.2d 235, 235-36 (Minn. 1993) (vacating conviction of keeping ferrets without permit when defendant's uncorroborated self-incriminating statements to animal control officers and "ambiguous" refusal to consent to search of home provided only evidence of guilt).
First-degree arson involves (1) the intentional destruction, (2) by means of fire or explosives, (3) of "any building that is used as a dwelling." Minn. Stat. § 609.561, subd. 1 (1996). The state must substantiate appellant's admissions "`by independent evidence of attending facts or circumstances from which the jury may infer the trustworthiness of the [admission].'" In re Welfare of M.D.S., 345 N.W.2d 723, 735 (Minn. 1984) (quoting Smoot v. United States, 312 F.2d 881, 885 (D.C. Cir. 1962)). The state is not required, however, to independently corroborate each element of the charged offense. Id.
In this case, Antonio Rice's testimony adequately corroborated appellant's repeated admissions that he intentionally set fire to Johnson's home. Rice saw appellant near the scene of the fire shortly before it was discovered and then, less than a week later, saw appellant holding a rifle that resembled one stolen from Johnson's home. Rice's testimony allowed the jury to infer, from appellant's admissions, that appellant set the fire.
An "admission" is, after all, a statement, direct or implied, of facts tending to establish guilt. It does not necessarily constitute an acknowledgement of guilt but of facts and circumstances, which, if taken in connection with proof of other facts, may permit an inference of guilt.

State v. Weber, 272 Minn. 243, 254, 137 N.W.2d 527, 535 (1965).
Appellant's admissions to Killen and Rewey also support the jury's inference that he acted with the requisite intent. See State v. Koskela, 536 N.W.2d 625, 629 (Minn. 1995) (affirming felony murder conviction of defendant whose self-incriminating admissions provided evidence of necessary intent).
Appellant argues that, if there is any evidence corroborating his admissions, it is circumstantial. But because the criminal act of arson, if successful, destroys most tangible evidence, circumstantial evidence frequently provides the only basis for an arson conviction. State v. Jacobson, 326 N.W.2d 663, 665 (Minn. 1982). Here, the circumstantial evidence, when viewed in a light most favorable to the conviction, was sufficient for the jury to convict appellant. See State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989) (when sufficiency of evidence is challenged, appellate court must
determine whether evidence, viewed in light most favorable to conviction, supports jury verdict).
Affirmed.

STATE OF MINNESOTA IN COURT OF APPEALS

STATE OF MINNESOTA
IN COURT OF APPEALS
C8-99-48

State of Minnesota,
Respondent,

vs.

Willis J. Beauvais,
Appellant.


Filed July 27, 1999
Affirmed
Schumacher, Judge

Washington County District Court
File No. K8-98-2268

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

Doug Johnson, Washington County Attorney, Eric C. Thole, Assistant County Attorney, Washington County Government Center, 14949 62nd Street North, Stillwater, MN 55082 (for respondent)

John M. Stuart, State Public Defender, Theodora Gaitas, Assistant State Public Defender, 2829 University Ave. Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)


Considered and decided by Willis, Presiding Judge, Schumacher, Judge, and Harten, Judge.

U N P U B L I S H E D   O P I N I O N SCHUMACHER, Judge
Appellant Willis J. Beauvais challenges his conviction for third-degree burglary, claiming the evidence of intent is insufficient on the element of intent. We affirm.

FACTS At approximately 12:30 a.m. on May 5, 1998, Beauvais was apprehended in a shed at the Hudson Road Animal Hospital in Woodbury after police responded to a silent alarm. At Beauvais's court trial, arresting officer Jason Posel testified that when he approached the shed he heard noises. A wall of the shed had been pried apart, according to Posel, and on the other side of the shed there was a six-inch hole. Officer Posel also testified that he discovered a weed trimmer, some tubing, and a hammer on the ground outside the shed.
A veterinarian associated with the hospital, Dr. Michael Westfall, testified that on the day of the burglary, the hospital caretaker had opened the shed while working, but the shed was intact at 5:00 p.m. when he walked around it. In regard to the items found outside of the shed, Dr. Westfall identified the tubing and weed trimmer as belonging to the hospital and stated that the weed trimmer was normally stored inside the shed on a hook or braced in between two wall panels.
Beauvais testified that he did not know how he got into the shed, but he wanted only to sleep there for the night because he had been dropped off on the road after a dispute with two drinking companions. He testified that the hospital was about 60 miles from his Maple Plain residence.
The trial court found Beauvais guilty of third-degree burglary under Minn. Stat. § 609.582, subd. 3 (1996) and imposed a 30-month sentence based on Beauvais's significant criminal history. On appeal, Beauvais claims the evidence was insufficient to show he intended to commit burglary.

D E C I S I O N Where sufficiency of the evidence is challenged on appeal, our review is limited to determining whether the evidence, viewed in the light most favorable to the conviction, is sufficient to permit the jurors to have reached a guilty verdict. State v. Spaeth, 552 N.W.2d 187, 192 (Minn. 1996); State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). The appellate court must assume the jury believed the evidence supporting the conviction and disbelieved contradictory evidence favoring the defendant. Dale v. State, 535 N.W.2d 619, 623 (Minn. 1995). In a case tried to the court, the findings are given the same weight as a jury verdict. State v. Bouwman, 354 N.W.2d 1, 4 (Minn. 1984).
In proving intent to commit burglary, the state must show that the defendant "intended to commit some independent crime other than trespass after illegal entry into the building." State v. Ring, 554 N.W.2d 758, 760 (Minn. App. 1996) (citation omitted), review denied (Minn. Jan. 21, 1997).

[T]he proof of intent to commit a crime in connection with proof of burglary is always one that must rest on a permissible inference from the facts proved.

State v. Crosby, 277 Minn. 22, 25, 151 N.W.2d 297, 300 (1967). Generally, those facts include "the time of entry, the nature of the building and its contents, any things which defendant may have had with him and all the other evidence in the case." State v. Johnson, 417 N.W.2d 143, 146 (Minn. App. 1987) (quoting 10 Minnesota Practice CRIMJIG 17.07 (1985)).
Viewing the evidence in the light most favorable to the trial court's decision, we conclude the evidence is sufficient to prove that Beauvais intended to commit third-degree burglary. He entered the shed late at night and damaged it in several places. The noises emanating from the shed upon police arrival contradicted Beauvais's claim that he was merely sleeping there. The location of the weed trimmer, found outside the shed on the ground but within arm's reach of the shed, also suggests criminal intent. Although Beauvais had an innocent explanation for his actions, the court, as fact-finder, was not obliged to believe his story. State v. Ostrem, 535 N.W.2d 916, 923 (Minn. 1995). The record supports a finding that Beauvais intended to commit burglary when he entered the shed. See Ring, 554 N.W.2d at 760 (circumstantial evidence sufficient to sustain conviction for attempted first-degree burglary); Johnson, 417 N.W.2d at 146 (evidence sufficient to support second-degree burglary conviction where defendant entered drug store with force late at night, disturbed property inside, and was arrested with items on his person that could have been from store); State v. Roehl, 409 N.W.2d 44, 47 (Minn. App. 1987) (evidence sufficient to support third-degree burglary conviction where defendant forced entry into business after hours late at night and fled after being found inside building).
Affirmed.

STATE OF MINNESOTA IN COURT OF APPEALS

STATE OF MINNESOTA
IN COURT OF APPEALS
CX-97-1441
State of Minnesota,Appellant,

vs.

Charles Maurice Bugg,
Respondent.

Filed March 3, 1998 Reversed and Remanded Kalitowski, Judge
Washington County District CourtFile No. K0965130

Hubert H. Humphrey III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Richard M. Arney, Washington County Attorney, Eric C. Thole, Assistant County Attorney, Washington County Government Center, 14900 61^st Street North, Stillwater, MN 55082 (for appellant)

Louis E. Torinus, 106 S. Main, P.O. Box 142, Stillwater, MN 55082 (for respondent)

Considered and decided by Peterson, Presiding Judge, Kalitowski, Judge, and Short, Judge.

U N P U B L I S H E D O P I N I O N KALITOWSKI, Judge
The state challenges the district court's grant of judgment of acquittal following a jury verdict finding respondent Charles Maurice Bugg guilty of aggravated robbery. We reverse and remand for a reinstatement of the jury's verdict and sentencing.

D E C I S I O N On October 12, 1996, respondent Charles Maurice Bugg grabbed the victim's purse as she was getting into her car after shopping. The victim did not let go of her purse, and respondent pulled the victim to the ground and dragged her for six or eight feet. When the victim let go of her purse, respondent ran off, dropping the purse along the way. At respondent's trial, the victim testified that she: (1) had scrapes on her elbows; (2) injured her right hip; (3) has continuing pain in her right shoulder; and (4) continues to have limited use of one hand.
The jury convicted respondent of aggravated robbery and the lesser included offenses of simple robbery and theft from a person. At sentencing, the district court sua sponte issued a judgment of acquittal for aggravated robbery stating: (1) there was insufficient evidence to support an aggravated robbery conviction because the crime was not more serious than a typical simple robbery; and (2) it had erred in giving the aggravated robbery instruction. Respondent did not make a motion for judgment of acquittal at any time during or after the trial, nor did he make a motion for a new trial.
"[A] motion of acquittal must be granted when the evidence, viewed in the light most favorable to the Government, is such that a reasonably minded jurymust have a reasonable doubt as to the existence of any of the essential elements of the crime charged."

United States v. Frol, 518 F.2d 1134, 1137 (8th Cir. 1975) (quoting United States v. Stephenson, 474 F.2d 1353, 1355 (5th Cir. 1973)).
In passing upon the defendant's post-trial motion for judgment of acquittal notwithstanding the jury's verdict, it was not the prerogative of the district court to resolve conflicts in the testimony, or to pass upon the credibility of witnesses or the weight to be given their testimony; those were jury functions; and the district court was not at liberty to set aside the verdict of the jury simply because the trial judge may have thought that the jury reached the wrong result. The district court was required, and we are required, to view the evidence in the light most favorable to the government, and to give the government the benefit of all favorable inferences reasonably to be drawn from the evidence. And if the verdict of the jury was sustained by substantial evidence, it should not have been set aside by the district court on factual grounds.

United States v. Hemphill, 544 F.2d 341, 344 (8th Cir. 1976).
Where there is a challenge to the sufficiency of the evidence, our review on appeal is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in a light most favorable to the conviction, was sufficient to permit the jurors to reach the verdict which they did.

State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).
Minn. Stat. § 609.245, subd. 1 (1996), defines "aggravated robbery" in the first degree:
Whoever, while committing a robbery, is armed with a dangerous weapon or any article used or fashioned in a manner to lead the victim to reasonably believe it to be a dangerous weapon, or inflicts bodily harm upon another * * *.

(Emphasis added.) "Bodily harm," as used in the definition of "aggravated robbery," means: "physical pain or injury, illness, or any impairment of physical condition." Minn. Stat. § 609.02, subd. 7 (1996).
This court has held that the aggravated robbery and simple robbery statutes do not impermissibly overlap, because they are "clear and describe different behavior." State v. Burrell, 506 N.W.2d 34, 37 (Minn. App. 1993), review denied (Minn. Oct. 19, 1993). The aggravated robbery statute requires that the victim be subjected to pain or injury. Id. Simple robbery, on the other hand, only requires mere force. Id.
In order to elevate a simple robbery to aggravated robbery, the statute requires only that, while committing a robbery, the defendant either be armed with a dangerous weapon or inflict bodily harm.

State v. Kvale, 302 N.W.2d 650, 653 (Minn. 1981).
In State v. Johnson, 277 Minn. 230, 237, 152 N.W.2d 768, 773 (1967), the supreme court found evidence of bodily harm sufficient to support an aggravated robbery conviction where the defendant: (1) took the victim's arm and either pushed or pulled him out of the car; (2) took the victim's wallet out of his pocket and cash out of his front shirt and pants pockets; (3) hit him in the chest causing his glasses to fall; and (4) bruised the victim's hip. Id. at 232, 152 N.W.2d 770. Relying on Johnson, this court found that a defendant's conduct in knocking the victim to the ground and dragging her into an alley while taking her jewelry was sufficient to support an aggravated robbery conviction. State v. Perez, 404 N.W.2d 834, 840 (Minn. App. 1987), review denied (Minn. May 20, 1987).
Further, the district court's reliance on State v. Kimmons, 502 N.W.2d 391 (Minn. App. 1993), review denied (Minn. Aug. 16, 1993), is misplaced. Although the defendant in Kimmons was convicted of simple robbery, there is no indication that the defendant was charged with aggravated robbery and the issue of whether his conduct constituted aggravated robbery was neither presented to, nor addressed by, this court. Id. at 393.
Viewing the evidence in a light most favorable to the conviction, we conclude the evidence was sufficient to permit the jurors to convict respondent of aggravated robbery. The aggravated robbery instruction properly required a finding of bodily harm, and the victim's testimony provided evidence of bodily harm. Further, the jury's finding that respondent's conduct constituted aggravated robbery is consistent with both Perez and Johnson.
The district court's stated disagreement with the prosecutor's charge is not a proper basis for granting a judgment of acquittal when the jury's verdict was supported by sufficient evidence.
Under established separation of powers rules, absent evidence of selective or discriminatory prosecutorial intent, or an abuse of prosecutorial discretion, the judiciary is powerless to interfere with the prosecutor's charging authority.

State v. Krotzer, 548 N.W.2d 252, 254 (Minn. 1996).
Finally, because the state did not raise the issue on appeal, we do not address whether the district court erred procedurally by granting the motion for judgment of acquittal sua sponte after the jury's verdict and after the specified time period for such a motion to be raised.
Reversed and remanded.

STATE OF MINNESOTA IN COURT OF APPEALS

STATE OF MINNESOTA
IN COURT OF APPEALS
C9-99-2021

State of Minnesota,
Appellant,

vs.

Signe Elissee Pearson,
Respondent.

Filed May 2, 2000Reverse and remand; motion granted
Peterson, Judge

Washington County District Court
File No. K998416

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Doug Johnson, Washington County Attorney, Eric C. Thole, Assistant County Attorney, 14900 61st Street North, P.O. Box 6, Stillwater, MN 55082-0006 (for appellant)
Michael F. Cromett, McMahon & Cromett Criminal Defense, PLLP, 2499 Rice Street, Suite 260, Roseville, MN 55113-3724 (for respondent)
Considered and decided by Peterson, Presiding Judge, Schumacher, Judge, and Anderson, Judge.

S Y L L A B U S

1. A district court may stay adjudication of a felony-theft charge only to avoid an injustice resulting from the prosecutor's clear abuse of discretion in the exercise of the charging function.
2. A restorative justice program does not have authority under Minn. Stat. § 611A.775 (1998) to assign a sanction for a criminal offense that would be an improper sentence if imposed by the district court.
3. When sentencing a defendant who has participated in a restorative justice program under Minn. Stat. § 611A.775, the district court is not required to impose a sanction assigned in the restorative justice program.

O P I N I O N

PETERSON, Judge
Appellant State of Minnesota argues that the district court erred by staying adjudication of felony theft charges against respondent Signe Elissee Pearson. Respondent moves to strike a portion of appellant's brief and appendix. We reverse and remand, and grant respondent's motion to strike.

FACTS

Pearson was charged by complaint with one count each of felony theft by wrongfully obtaining public assistance and felony theft by wrongfully obtaining food stamps in violation of Minn. Stat. §§ 256.98, subd. 1, 393.07, subd. 10(c)(1), 609.52, subd. 3(2)-(3) (1994). The complaint alleged the following facts: from May 1995 through February 1996, Pearson received $4,080 in aid to families with dependent children (AFDC) and $2,431 in food stamps from Washington County; Pearson was working 40 hours per week but stated in her application for assistance that she was earning no income; and if Pearson had disclosed her employment, she would not have received any AFDC or food stamps.
Pearson pleaded guilty to felony theft by wrongfully obtaining public assistance. She admitted the allegations in the complaint and also admitted that she knew she was supposed to disclose any employment or income to Washington County when applying for or receiving public assistance or food stamps. Pursuant to the parties' agreement, the district court referred the case to the Washington County circle sentencing process for a sentencing recommendation.
The sentencing circle met four or five times regarding Pearson's case. Participants included Pearson, her husband, the district court, and community members. The circle recommended a stay of adjudication of the charges against Pearson and that Pearson be required to pay restitution, obtain credit counseling and financial management help, perform community volunteer work, and participate in support/follow-up circles.
At the sentencing hearing, the county attorney stated that his office had not received notice of any of the circle meetings. He also stated that Washington County Community Services, the victim of the offense, had not received notice of the circle meetings, but a circle member stated, and the district court found, that community services had received notice of the meetings. Apparently, no one from community services was present at any of the circle meetings.
The district court accepted the circle's recommendation and stated the following reasons for staying adjudication: the parties and the court had referred the matter “to the circle with a belief in that process and that standing by itself is a mitigating circumstance”; Pearson had no felony record or pattern of law violations and was not a public safety risk; to avoid impeding Pearson from obtaining future employment; a traumatic event in Pearson's life affected her emotional and mental state at the time she committed the offense and was a contributing factor to the offense; and if Pearson had had the financial means to qualify for diversion, she would not have been charged with a felony.

I S S U E S

I. Did the district court err in staying adjudication of the charges against Pearson?
II. Should Pearson's motion to strike be granted?

ANALYSIS

I.

In State v. Krotzer, 548 N.W.2d 252, 254-55 (Minn. 1996), the supreme court concluded that a decision to stay adjudication of a criminal charge is within the “inherent judicial power” of the district court. The supreme court also concluded in Krotzer that the district court's determination that a stay of adjudication was warranted was well-supported by the special circumstances of the case. Id. at 254.
In State v. Foss, 556 N.W.2d 540, 540 (Minn. 1996), the supreme court explained that, in Krotzer, it had held that

if “special circumstances” are present, then a trial court may stay an adjudication of guilty over the prosecutor's objection without violating the separation-of-powers doctrine.

The Foss court further explained:

It was not our intention that mere disagreement with the prosecutor's exercise of the charging discretion would constitute “special circumstances.” Rather, it was our intention that the inherent judicial authority recognized in [Krotzer] be relied upon sparingly and only for the purpose of avoiding an injustice resulting from the prosecutor's clear abuse of discretion in the exercise of the charging function.

Id. at 541 (emphasis in original).
In State v. Mitchell, 577 N.W.2d 481, 493 (Minn. 1998), the supreme court reiterated the statements it made in Krotzer and Foss:

At times, this court has recognized exceptions when the [district court] does have inherent judicial power to act in the furtherance of justice, but this power is to be exercised only when there are special circumstances, such as selective or discriminatory prosecutorial intent. The inherent judicial power recognized in Krotzer is limited, and is to be relied upon sparingly and only for the purpose of avoiding an injustice resulting from the prosecutor's clear abuse of discretion in the exercise of the charging function.

(Citation and quotation omitted) (emphasis in original).
In 1998, the legislature enacted Minn. Stat. § 611A.775 (1998), which authorizes restorative justice programs. Section 611A.775 states:

A community-based organization, in collaboration with a local governmental unit, may establish a restorative justice program. A restorative justice program is a program that provides forums where certain individuals charged with or petitioned for having committed an offense meet with the victim, if appropriate; the victim's family members or other supportive persons, if appropriate; the offender's family members or other supportive persons, if appropriate; a law enforcement official or prosecutor when appropriate; other criminal justice system professionals when appropriate; and members of the community, in order to:
(1) discuss the impact of the offense on the victim and the community;
(2) provide support to the victim and methods for reintegrating the victim into community life;
(3) assign an appropriate sanction to the offender; and
(4) provide methods for reintegrating the offender into community life.

There is no dispute that circle sentencing is a type of restorative justice program. Pearson argues that because restorative justice is an alternative to traditional sentencing under the criminal justice system and the state agreed to submit Pearson's case to circle sentencing, it should be bound to follow the circle's recommendation. We disagree. Although Minn. Stat. § 611.775(3) authorizes a restorative justice program to “assign an appropriate sanction to the offender,” the statutory language does not indicate a legislative intent to authorize restorative justice programs to assign a sanction that would be an improper sentence if imposed by the district court. Nor does the statute indicate that the district court must impose the sanction assigned in the restorative justice program. Absent statutory language indicating a clear legislative intent to subordinate the sentencing authority of the district court to the decision of the forum provided in a restorative justice program, a construction of Minn. Stat. § 611.775(3) that would have this effect is not reasonable. See Minn. Stat. § 645.17(1) (1998) (legislature does not intend result that is unreasonable).
Citing People v. Superior Court of San Mateo County, 520 P.2d 405, 410 (Cal. 1974), a case cited in Krotzer, Pearson argues that the prosecutor should not be allowed to override a sentencing circle's recommendation. But in that case, the California Supreme Court held that the decision to divert a defendant into a rehabilitation program could not constitutionally be subordinated to a prosecutor's veto. The court specifically noted that the decision to divert was a dispositional determination, not an extension of the charging process. Thus, unlike a stay of adjudication in Minnesota, under California law, a decision to divert an offender does not interfere with the prosecutor's charging authority.
Because the district court was not required to impose the sanction assigned in the restorative justice program, the district court could stay adjudication only if there were “special circumstances” warranting a stay of adjudication.
One reason the district court cited for staying adjudication was that if Pearson had had the financial means to qualify for diversion, she would not have been charged with a felony. Minn. Stat. § 401.065, subd. 2 (1998) (requiring counties to establish pretrial diversion programs for adult offenders). Neither Pearson nor the district court states the criteria for diverting welfare fraud offenders in Washington County, and we did not find this information in the record. The record, therefore, does not establish that the prosecutor abused its discretion by not referring Pearson to a diversion program.
Another reason for the stay of adjudication was to avoid impeding Pearson's employment prospects. But case law indicates that possible loss of a job is not an appropriate factor for the court to consider when deciding whether to stay adjudication. See State v. Twiss, 570 N.W.2d 487, 487 (Minn. 1997) (possible loss of a job due to criminal conviction is not a “special circumstance”; rather it is a typical consequence of a conviction for a serious offense);State v. Thoma, 569 N.W.2d 205, 209 (Minn. App. 1997) (collateral consequences of conviction for underage drinking and driving, including loss of employment due to driver's license suspension, not “special circumstances”), aff'd mem., 571 N.W.2d 773 (Minn. 1997).
The remaining reasons cited by the district court do not constitute “special circumstances” warranting a stay of adjudication. The decision to refer Pearson to the sentencing circle was made as part of the sentencing process and, therefore, is not relevant to determining whether the prosecutor abused its discretion in charging Pearson. Pearson does not cite any authority indicating that an offender's criminal history or the fact than an offender is not a threat to public safety is relevant to determining whether a stay of adjudication is warranted. As the state argues, these factors are taken into account in offense severity levels and in criminal history scores under the sentencing guidelines. Finally, the district court cited a traumatic event that occurred in Pearson's life, but the record does not indicate what that traumatic event was. Consequently, we cannot determine how it may have affected the prosecutor's charging decision.

II.

Pearson moves to strike from the brief and appendix to the state's brief an affidavit by the county attorney regarding its participation in other sentencing circles and all references to the affidavit. The papers filed in the district court, the exhibits, and the transcript of the proceeding, if any, shall constitute the record on appeal in all cases. Minn. R. Civ. App. P. 110.01. Because the affidavit was not sworn until after Pearson's sentencing, the motion to strike is granted.

D E C I S I O N

Because the sentencing circle had no authority to assign a stay of adjudication as a sanction for felony theft and the district court was not required to impose the sanction assigned by the sentencing circle, the state's agreement to refer Pearson to the sentencing circle was not a proper basis for staying adjudication of the felony-theft charge. Because there were not other special circumstances that demonstrated a clear abuse of prosecutorial discretion in the exercise of the charging function, the district court improperly stayed adjudication of the felony-theft charge against Pearson.
Reversed and remanded; motion granted.

STATE v. McNEIL

Court of Appeals of Minnesota.

STATE of Minnesota, Respondent, v. Christopher Henry McNEIL, Appellant.

No. C0-02-542.

    Decided: April 1, 2003

Considered and decided by SCHUMACHER, Presiding Judge, WILLIS, Judge, and ANDERSON, Judge. Mike Hatch, Attorney General, St. Paul, MN, and Doug Johnson, Washington County Attorney, Eric C. Thole, Assistant County Attorney, Jennifer S. Bovitz, Assistant County Attorney, Stillwater, MN, for respondent. John Stuart, State Public Defender, Davi E. Axelson, Assistant State Public Defender, Minneapolis, MN, for appellant.

OPINION

 Appellant challenges his conviction of three counts of first-degree criminal sexual conduct in violation of Minn.Stat. § 609.342, subds. 1(a), (g), and (h)(iii) (2000).   Appellant contends that numerous instances of prosecutorial misconduct caused him prejudice and denied him his right to a fair trial.   The prosecution committed misconduct by failing to adequately prepare witnesses to avoid the mention of suppressed evidence, by asking a direct question eliciting suppressed testimony, by vouching for a witness's credibility, and by making statements in closing arguments aimed at jury sympathy and inviting the jury to compensate the victim.   But based on the particular facts of this case, we conclude that in light of the untainted evidence presented by the state these actions did not substantially prejudice the jury and deny the appellant a fair trial.   Therefore, we affirm.

FACTS

The facts of this case are not in dispute on appeal.   Appellant began a romantic relationship with T.L.M.'s mother (mother) in the summer of 1993.   Approximately two months after he and mother met, appellant moved into the house where mother lived with her son and daughter, T.L.M. Appellant allegedly began sexually abusing T.L.M., then eight years old, shortly after he moved into the home.   In the time period between September 1993 and July 2000, the incidences of abuse took place, in one manner or another, two to three times a week.

T.L.M. first reported the abuse to her mother in the summer of 2000.   The police were not immediately contacted because mother wanted T.L.M. to speak first to Jean Hamm, T.L.M.'s therapist.   After hearing T.L.M.'s report of abuse, Hamm notified the Oakdale Police Department.

Officer Rolf Hagland was assigned to investigate the allegations of abuse.   Hagland asked Lynn Hansen, a child-protection worker for Washington County Community Services, to assist him with his investigation.   Hansen interviewed T.L.M. at the Oakdale police department.   In this interview, T.L.M. recounted the incidences of abuse.   T.L.M. also stated that appellant had a scar on his back related to a congenital condition (spinabifida) and described appellant's penis as crooked or bent.   Evidence at trial confirmed these unique physical features.

Prior to trial, appellant made several motions to suppress various testimonial evidence.   The district court ruled that opinion testimony as to T.L.M.'s truthfulness, evidence that appellant had avoided meeting with Hagland, and evidence relating to appellant's drug use would not be admissible at trial.   But, eventually, testimony regarding all three of these suppressed subjects was heard by the jury.

The prosecutor admitted that despite the court's ruling he had not instructed mother to avoid vouching for T.L.M.'s credibility.   The prosecutor was unsure whether or not he instructed Hamm not to mention appellant's drug use, but he asserted that he had told Hagland not to mention that appellant had missed appointments to meet with him.

T.L.M. had undergone a gynecological exam, the results of which appellant asserts were exculpatory, that appellant did not learn of until the trial had commenced.   The results of the exam revealed that, although T.L.M. had alleged that appellant had penetrated her, T.L.M.'s vagina appeared “normal,” and although appellant had hepatitis A, B, and C, T.L.M. tested negative for all three diseases.

Appellant asserts that it is unlikely that, although three of the state's witnesses knew of the exam, the prosecutor did not, and nondisclosure-intentional or inadvertent-warrants reversal under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) and Minn. R.Crim. P. 9.01, subd. 1(1)(6).   The district court denied appellant's motions for a mistrial and a continuance, and allowed appellant time to obtain an expert witness but ruled that the trial would otherwise go forward as scheduled.   Appellant did not obtain an expert, but argued the exculpatory nature of the medical examination to the jury.

Appellant was found guilty of all three counts of first-degree criminal sexual conduct.   This appeal followed.

ISSUES

I.  Does the introduction of suppressed evidence as a result of prosecutorial misconduct warrant reversal of appellant's convictions?II.  Did a Brady violation occur warranting reversal of appellant's convictions?III. Were the prosecution's improper statements in closing arguments unduly prejudicial, warranting reversal of appellant's convictions?ANALYSISI.

 In cases involving serious prosecutorial misconduct this court will reverse if the misconduct was so prejudicial as to have substantially affected the jury and denied appellant a fair trial.  State v. Caron, 300 Minn. 123, 128, 218 N.W.2d 197, 200 (1974).

 Prior to trial, appellant moved to have various pieces of evidence suppressed.   The district court ruled that opinion testimony concerning C.C.'s truthfulness, evidence of appellant's drug use, and evidence that appellant had missed two scheduled meetings with Hagland were to be suppressed.   Testimony by state witnesses about these prohibited subjects was eventually heard by the jury, and appellant duly objected.1

 During direct examination, the prosecutor specifically asked T.L.M.'s mother if she believed T.L.M.'s allegations of sexual abuse. Mother replied, “Yes.” There is no doubt that it was misconduct for the prosecution to ask if mother believed T.L.M. See Van Buren v. State, 556 N.W.2d 548, 551-52 (Minn.1996).   The state has a duty to prepare its witnesses, prior to testifying, to avoid inadmissible or prejudicial statements.  State v. Carlson, 264 N.W.2d 639, 641 (Minn.1978) (citing State v. Huffstutler, 269 Minn. 153, 130 N.W.2d 347 (1964)).   A reviewing court is much more likely to find prejudicial misconduct when the state intentionally elicits impermissible testimony.  State v. Richmond, 298 Minn. 561, 563, 214 N.W.2d 694, 695 (1974).   But an intentional elicitation of impermissible testimony, although erroneous, will warrant reversal only when it is likely that the impermissible testimony substantially weighed on the jury's decision.  Id. at 563, 214 N.W.2d at 695.

 While testifying on cross-examination, in response to an otherwise appropriate defense question calling only for a yes-or-no answer, Hamm stated that appellant was, at a particular time, in treatment for cocaine addiction.   Defense counsel has a responsibility to limit questioning to avoid eliciting objectionable testimony, and appellant's trial counsel did so in this case.  State v. Underwood, 281 N.W.2d 337, 342 (Minn.1979).   The statement was made in response to a yes-or-no question as to whether appellant was living with T.L.M. and her family at a particular time. Following the statement, appellant's counsel objected, and the district court directed the jury to disregard Hamm's statement.

To prevent its witnesses from offering improper testimony, the state has a duty to properly prepare them-defining for the witness the acceptable limits of their testimony-prior to trial.  Underwood, 281 N.W.2d at 342.   The prosecutor did not recall whether or not Hamm had been told she would not be permitted to testify about appellant's drug use.   Respondent argues that the prosecutor was not required to do so because the court's order suppressing the evidence did not so direct him.   But respondent cites no authority for this proposition.   To the contrary, Minnesota law is crystal clear on this issue-the state has an absolute duty to prepare its witnesses to ensure that they are aware of the limits of permissible testimony.  State v. Hogetvedt, 623 N.W.2d 909, 914 (Minn.App.2001), review denied (Minn. May 29, 2001).

The evidence that appellant abused T.L.M. was overwhelming and included graphic, consistent testimony from T.L.M. as well as her description of appellant's unique physical characteristics.   Given this evidence, we cannot conclude that the single occurrence of vouching, even though initiated by the prosecutor, or the mention by Hamm of appellant's drug addiction substantially affected the jury's decision.

During the course of the state's direct examination of Hagland, notwithstanding the district court order prohibiting this testimony, Hagland mentioned twice that he had set up an interview with appellant;  appellant's counsel objected and sought a mistrial.   The court denied the motion, stating that there was no testimony that appellant had missed the appointment or had been avoiding Hagland and then directed the jury to disregard the testimony.

 A district court's denial of a motion for a mistrial based on prosecutorial misconduct is reviewed under the abuse-of-discretion standard.   State v. Scruggs, 421 N.W.2d 707, 716 (Minn.1988).   The key element is whether the misconduct has prejudiced appellant, denying him his right to a fair trial.  Id. While it is less clear that prosecutorial error occurred here, the analysis remains the same-even if error occurred, we cannot conclude that Hagland's testimony caused appellant unfair prejudice.   The district court properly gave a curative instruction, and we find no abuse of discretion in the denial by the district court of a motion for a mistrial.

 When a jury is exposed to potentially prejudicial material, a problem of constitutional magnitude has arisen-the accused's right to an impartial jury has been threatened.  Id. In evaluating whether an appellant has been denied his right to trial by an impartial jury, we must consider the source of the improper evidence and the number of jurors exposed to it.   We must then weigh the prejudicial evidence against the evidence properly before the court and consider the effectiveness of any curative measures.   Hogetvedt, 623 N.W.2d at 914.

We conclude that error did occur in the above instances, but the overwhelming weight of the evidence including compelling testimony by T.L.M. and her description of facts that she was very unlikely to know absent the abuse, lead inescapably to the conclusion that appellant was not denied his right to trial by a fair and impartial jury.   We conclude that the jury was not, in all likelihood, prejudicially affected by the improper testimony.

II.

 T.L.M. testified during cross-examination that Hamm had taken her to see a gynecologist following the report of sexual abuse.   Although three of the state's witnesses-T.L.M., mother, and Hamm-knew of the examination, both appellant's counsel and the prosecutor indicated this was the first they had learned of the medical examination.   Appellant moved for a mistrial and alternatively requested time to review the examination results.   Appellant did receive a limited amount of time to review the documents, but the motion for a mistrial was denied.   The examination results, which were initially incomplete when presented to the defense, once completely retrieved, indicated that T.L.M. had a “normal” vagina and that she tested negative for sexually transmitted diseases.2

Appellant argued the examination results were exculpatory, and that the defense would have been different had the results been available during discovery.   Appellant further argues that since three of the state's witnesses were allowed to testify before the medical reports were reviewed by appellant's counsel, his right to a fair trial was denied.

Minn. R.Crim. P. 9.01, subd. 1(1)(6), requires the state to disclose information in its possession “that tends to negate or reduce the guilt of the accused as to the offense charged.”   Respondent insists that the medical examination was not in the possession of the prosecution and was unknown until T.L.M. mentioned it at trial.

 A district court's ruling on discovery issues is reviewed for an abuse of discretion.  State v. Lindsey, 284 N.W.2d 368, 373 (Minn.1979).   To demonstrate a due-process violation warranting reversal of a conviction, appellant must show that (1) the state willfully or inadvertently withheld evidence, (2) the evidence was favorable to the defendant, and (3) he or she was prejudiced thereby. Woodruff v. State, 608 N.W.2d 881, 886 (Minn.2000).   Although it is difficult to understand how such a critical piece of information was not within the prosecution's knowledge until after the commencement of trial, we cannot say the district court abused its discretion in denying appellant's motion for a mistrial.   Based on the record before this court, and given our limited standard of review in evidentiary matters, we cannot conclude that the state willfully or inadvertently withheld the evidence.

 Additionally, the district court took steps to ameliorate the harm to appellant-allowing appellant access to the examination file, allowing appellant the option of recalling witnesses, and allowing appellant time to obtain an expert witness-and these ameliorative measures adequately addressed any inconvenience due to the late discovery of the evidence.   While in cases of mid-trial discovery of relevant and significant evidence a reasonable continuance may at times be appropriate, the district court stated on several occasions that continuances would not be granted and that the trial would proceed.   To obtain a continuance in such cases, an appellant must demonstrate that the result of the trial would likely be different but for the alleged error.  State v. Hunt, 615 N.W.2d 294, 299 (Minn.2000).   Appellant made no showing before the district court as to how a continuance would have benefited appellant's case and, in fact, declined to call an expert witness.   We conclude that appellant was not denied his right to a fair trial by the late discovery and denial of his requests for continuances.

III.

 Appellant argues that the prosecutor committed prejudicial misconduct by arguing beyond the facts of the case and the elements of the charges in closing statements.   Appellant's trial counsel did not object during the state's closing and, therefore, this court will reverse based on these alleged errors only if the comments were unduly prejudicial.  State v. Whittaker, 568 N.W.2d 440, 450 (Minn.1997).   In cases such as this, where credibility is the central issue, special attention must be paid to statements that may prejudice or inflame the jury.  State v. Porter, 526 N.W.2d 359, 363 (Minn.1995).   When reviewing alleged misconduct in closing statements, this court must look at the whole argument in context, not just selective phrases or remarks.  State v. Walsh, 495 N.W.2d 602, 607 (Minn.1993).   “Prosecutors in sexual abuse cases must abide by the highest behavior.”   State v. Danielson, 377 N.W.2d, 59, 61 (Minn.App.1985) (quoting State v. Jahnke, 353 N.W.2d 606, 611 (Minn.App.1984)).   Sexual-abuse cases inevitably evoke an emotional reaction, and any attempt by the prosecutor to exacerbate this natural reaction by making “any emotive appeal” to the jury “is likely to be highly prejudicial.”  Id. Appellant argues that in the following portion of the state's closing argument an appeal was made to the sympathies of the jurors:

[T.L.M.], this means that you're not a virgin anymore.   Her first sexual experience, not as an adult, not on her wedding night, not in college, not even in high school.   As an eight year old, as a nine year old, as a ten year old.   You can't take away the burden that [T.L.M.] will carry with her the rest of her life.   You can't give her back her childhood.   You can't give her back her virginity.   But you can give her justice.

Appellant contends that this statement was made to play on the sympathies of the jury and had nothing to do with the facts of the case or the elements of the crimes charged.   We agree.   These statements were wholly unrelated to the elements of the offenses with which appellant was charged or the evidence at trial.

Appellant also argues that the prosecutor improperly vouched for T.L.M.'s credibility during closing arguments.   In explaining to the jury that it was implausible that T.L.M. had fabricated the alleged abuse, the prosecutor stated the following:

Did anyone think that was fun for her?   No. No, it wasn't.   Maybe she lied about taking food from the fridge, but not about this.   When [T.L.M.] was on that witness stand did she look to you like she was lying as she sat there and sobbed every time she had to recall the abuse?   No.

Later, when explaining why T.L.M. testified as she did, the prosecutor stated:  “Because it's the truth, that's why.”

 It is not proper for a prosecutor to endorse the credibility of a witness in closing statements.  Porter, 526 N.W.2d at 364.   A prosecutor may argue as to the credibility of witnesses but may not throw his own opinion onto the scales of credibility.  State v. Ture, 353 N.W.2d 502, 516 (Minn.1984).   It is the jury's province to determine, of its own accord, what constitutes the truth.  State v. Costello, 646 N.W.2d 204, 213 (Minn.2002).   It is not for the prosecutor to tell the jury what he believes the truth to be.3

 Appellant also argues that it was improper for the prosecutor to invite the jury to punish appellant for exercising his right to trial.   Appellant specifically points to the following statement in which the prosecutor attacks appellant for forcing C.C. to go through a trial:  “To come in here and put her through this, shamed her for never telling anyone, [victimize her] all over again.”   Article I, Section 6 of the Minnesota State Constitution guarantees a criminal defendant the right to a public trial by an impartial jury and to confront witnesses against him.   Minn. Const. art. I, § 6. It is misconduct for a prosecutor to attack a defendant for exercising his right to a fair trial and to encourage the jury to punish him for what the prosecutor perceives as further victimization of the victim.

The assertion by respondent that there was no error in the prosecution's closing argument is simply wrong.   But although we recognize that it is improper for a prosecutor to evoke sympathy for a victim and encourage ire against a defendant for exercising his absolute right to face his accuser and be tried by a fair and impartial jury, this act of misconduct simply cannot, even when considered with the other errors, outweigh T.L.M.'s descriptive and detailed testimony.   Therefore, we do not find these statements, although improper, to have unduly prejudiced appellant.   See Whittaker, 568 N.W.2d at 450.

 Prosecutors have a duty not to win a case by any means necessary but to see that justice is done.  State v. Haney, 222 Minn. 124, 130, 23 N.W.2d 369, 372 (1946).   Justice is done only when the accused, regardless of guilt or innocence, receives a fair trial.  Id. at 130-32, 23 N.W.2d at 372-73.   The cumulative actions and decisions, or in some cases, non-decisions, of the prosecutor in this case fall well short of the high standard of behavior required by Danielson and other appellate decisions;  but given the extraordinary weight of the evidence, we cannot say appellant did not receive a fair trial.

DECISION

 In order to reverse a conviction for serious prosecutorial misconduct, the prosecutor's misconduct must be inexcusable and so serious so as to deprive appellant of a fair trial.  State v. Bright, 471 N.W.2d 708, 711 (Minn.App.1991), review denied (Minn. Aug 1, 1991).   Here, we conclude that the individual instances of prosecutorial misconduct are serious and inexcusable, but after careful consideration of the record in this particular case, we cannot say that appellant was denied his right to a fair trial.   Therefore, we affirm.

Affirmed.

FOOTNOTES

1.   Appellant did not object, at trial, to mother's credibility vouching but, as noted in the committee comment to Minn. R. Evid. 103, a pretrial motion to prohibit evidence operates as a timely objection, and further objection is not necessary to preserve the issue for review.

2.   Appellant has hepatitis A, B and C.

3.   We also note that the improper statements in this case ran afoul of the ABA standards for criminal prosecution, which the Minnesota Supreme Court has cited with approval:Standard 3-5.8 Argument to the Jury* * *(b) The prosecutor should not express his or her personal belief or opinion as to the truth or falsity of any testimony or evidence or the guilt of the defendant.(c) The prosecutor should not make arguments calculated to appeal to the prejudices of the jury.(d) The prosecutor should refrain from argument which would divert the jury from its duty to decide the case on the evidence.Standard 3-5.9 Facts Outside the RecordThe prosecutor should not intentionally refer to or argue on the basis of facts outside the record whether at trial or on appeal, unless such facts are matters of common public knowledge based on ordinary human experience or matters of which the court may take judicial notice.ABA Standards for Criminal Justice Prosecution Function and Defense Function, standards 3-5.8, 3-5.9 (Third Ed.1993);  see State v. Richardson, 514 N.W.2d 573, 577 (Minn.App.1994).

G. BARRY ANDERSON, Judge.

- See more at: http://caselaw.findlaw.com/mn-court-of-appeals/1413370.html#sthash.VL4hqX4w.dpuf

State of Minnesota, Respondent, vs. Fredy Rene Palma Espinal, Appellant.

This opinion will be unpublished and may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-1967

State of Minnesota,

Respondent,

vs.

Fredy Rene Palma Espinal,

Appellant.

Filed September 21, 2004

Affirmed

Randall, Judge

            Washington County District Court

No. K2-03-1908

John M. Stuart, State Public Defender,Scott G. Swanson, Lydia Maria Villalvalijo, Assistant Public Defenders, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for appellant)

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

Doug Johnson, Washington County Attorney, Eric Thole, Assistant County Attorney, 14949 62nd Street North, P.O. Box 6, Stillwater, MN  55082 (for respondent)

            Considered and decided by Randall, Presiding Judge, Willis, Judge, and Minge, Judge.

U N P U B L I S H E D  O P I N I O N

RANDALL, Judge

On appeal from his conviction of attempted escape from custody, appellant argues that (1) the evidence is insufficient to prove that he intended to escape from jail; and (2) his actions were so unlikely to achieve an escape that the defense of "inherent impossibility" should apply.  We affirm. 

FACTS

            At the time of the offense, appellant Fredy Espinal was an inmate in the Washington County Jail.  Appellant had been in jail since July 2002 for a second-degree murder conviction and was awaiting sentencing.  Appellant occupied cell C203, one of five other cells contained in a "pod" of cells known as "C200."  This pod is adjacent to "cluster control," an area where a corrections officer manages and monitors C200 and other pods. 

At least once per day, appellant would leave his pod to visit the recreational facilities, attend jail programs, or receive other services.  To exit pod C200 and visit other areas of the jail, it is necessary to go through five secured doorways.  The final door is a "sally port," which means that the door behind the person exiting must lock before the final door will open.  At every door, voice identification is needed to pass and at some doors visual identification is required.  To obtain access through any of these doors, a person must obtain the consent of master control.  The elevator in the facility is monitored by intercom and video camera and is controlled exclusively by master control. 

            C200 goes into lockdown three times a day.  During lockdown, inmates must return to their cells and shut the cell doors behind them.  Once all doors are secure, a correctional officer visually inspects the cells to make sure the inmates are in their cells. 

On March 15, 2003, at approximately 10:25 p.m., correctional officers attending to C200 conducted a lockdown.  By looking on the security monitor, it became evident to cluster control that appellant's cell door was not secure.  Over intercom, five verbal commands were given to appellant to secure his cell door but appellant did not respond.  Three correctional officers then went to appellant's cell and discovered he was missing.  Officers later found appellant hiding in the shower room, wearing clothes.  Officers did not find any weapons or contraband on appellant.  When examining appellant's cell, officers found a "dummy" under the linens of appellant's bed, placed there to make it seem as though a human body was sleeping in the bed.  As with all attempted escapees, appellant was quickly transferred to the jail's segregation unit.

Appellant was charged with one count of attempted escape from custody.  During his jury trial, appellant testified that he made numerous requests to be transferred to a different housing unit to avoid other inmates from harassing him about his case and to use the recreation area and library.  Then appellant got creative and stated he had received three letters from correctional officers stating that if he cooperated with a correctional officer training program on how to handle prisoner escapees, he would be transferred to a better cell within the jail and receive additional privileges.  Appellant offered this as a reason for why he put a dummy in his bed before lockdown and then went and hid in the shower room.  According to appellant, officers not part of the training staff were to make inferences from the dummy in his cell and then go and try to find him. Appellant testified that he received the letters under his cell door.  At trial, appellant was unable to produce any of the letters he claimed he received from the correctional officers asking him to be part of their "escape training program."  Appellant claimed they had been removed from his cell.  Appellant testified that when he made the dummy and tried to escape, he was only following orders from correctional officers outlined in the letters.

The jury heard appellant's story, deliberated, and found appellant guilty of attempted escape from custody.  This appeal follows.

D E C I S I O N

In reviewing a sufficiency-of-the-evidence challenge on appeal, the evidence must show that a reasonable juror could reach the verdict rendered based on the evidence provided.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  "A conviction based entirely on circumstantial evidence merits stricter scrutiny than convictions based in part on direct evidence."  State v. Jones, 516 N.W.2d 545, 549 (Minn. 1994) (citations omitted).  But "[w]hile it warrants stricter scrutiny, circumstantial evidence is entitled to the same weight as direct evidence."  State v. Bauer, 598 N.W.2d 352, 370 (Minn. 1990) (citation omitted).  Circumstantial evidence can be the basis for a conviction as long as the only reasonable inferences that can be made from the evidence are that the defendant is guilty and there are no contrary reasonable hypotheses.  State v. Anderson, 379 N.W.2d 70, 75 (Minn. 1985).  A jury, however, is in the best position to evaluate circumstantial evidence, and its verdict is entitled to due deference.  Webb, 440 N.W.2d at 430.  This court must assume that the jury believed the state's witnesses and did not believe any evidence to the contrary.  State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).  

1.      Sufficiency of the Evidence

The crime of escape from custody requires that the perpetrator depart from custody without lawful authority or fail to return after having been granted temporary leave.  Minn. Stat. § 609.485, subd. 1 (2002).  To prove an attempt of a crime, it must be shown that the perpetrator had the intent to commit the crime and took a substantial step towards the commission of the crime.  Minn. Stat. § 609.17, subd. 1 (2002).   An attempt to commit a crime requires specific intent because it is illogical to try to commit a crime based on recklessness or negligence.  State v. Zupetz, 322 N.W.2d 730, 734 (Minn. 1982).  Specific intent can be proven by circumstantial evidence.  State v. Johnson, 374 N.W.2d 285, 288 (Minn. App. 1985). 

Appellant does not argue that the inference made by the jury (that he attempted to escape) was unreasonable.  Instead, appellant had two theories, one at trial and one for appeal.  At trial, appellant testified that correctional officers asked him to attempt an escape as part of a training program and promised him a cell transfer for his cooperation, which led to his hiding in the shower room after he had placed a dummy in his bed clothes to simulate himself being present in the cell.  Appellant does not assert this argument on appeal.  His failure at trial to produce the documentation from the prison staff that he claimed had been given to him requesting his cooperation in this "training program" would have been a problem, had he carried this argument through appeal.  Since he abandoned the "training program" argument, we move on to appellant's other theory.

At trial, appellant postured that he had repeatedly requested administration to transfer him to a different housing facility.  This argument appellant continues on appeal.  Appellant now argues that he intended to instigate a housing transfer through disobedience and noncompliance.  This theory differs from appellant's theory at trial.  At trial, appellant testified that he desired a transfer within the jail, but, instead of testifying that he would somehow get a transfer by disobedience, he testified he would get the transfer by cooperating with the correctional officers' training program.  We understand appellant's "civil disobedience" argument, but it does not persuade us.

Finally, appellant argues that he really never intended to escape, that he only wanted a transfer within the prison, and that his actions "worked," as he got transferred from his cell to segregation.  We do not understand appellant's argument.  While all attempted escapees are transferred into segregation for a period of time, an attempted escape within a prison is not an action likely calculated to bring you into favor with the administration, and to get you transferred to whatever unit you would like to go to.  An attempted escape remains an attempted escape, even if the argument were made, "Gee, segregation is better than the unit I am in now."

Even putting the best spin on appellant's argument, the existence of a dummy in his bed in his cell, his presence hiding in the shower room, and the total lack of any corroboration that correctional officers put him up to this as part of a training program, support the jury's finding that appellant intended to escape from custody.  State v. Brocks, 587 N.W.2d 37, 42 (Minn. 1998) (stating that the jury is in the best position to evaluate the credibility of witnesses and weigh evidence, and therefore its verdict is entitled to deference). 

2.  Inherent Impossibility

Appellant argues that because an escape would have required him to pass through five secured doorways, his actions were so unlikely to achieve that result that the defense of "inherent impossibility" should apply.  The state argues that escape from the Washington County jail is not inherently impossible and that appellant's failure to ultimately escape is not a legal bar to his prosecution.  We agree with the state.

The state must prove all the elements of a crime beyond a reasonable doubt.  State v. Auchampach, 540 N.W.2d 808, 816 (Minn. 1995) (stating that due process requires that the state prove each of the elements of the crime beyond a reasonable doubt).  When the charge is for attempt, rather than the completed act, the prosecution must prove specific intent and an act that is a substantial step toward the commission of a crime.  Minn. Stat. § 609.17, subd. 1 (2002); State v. Olkon, 299 N.W.2d 89, 104 (Minn. 1980).  The prosecution in this case proved both.

A.  Specific Intent

An attempt to commit any crime requires a specific intent to commit that particular offense.  Zupetz, 322 N.W.2d at 734.  Appellant argues that because there were at least five secured doorways between appellant and the outside world, there was minimal possibility of escaping.  He asserts that, therefore, under these circumstances, he lacked a reasonable expectation of escaping and there is thus reasonable doubt as to whether he had the specific intent to attempt an escape from custody.  We do not understand appellant's argument.  In effect, he is arguing that since escape was so difficult, he was entitled to "a free pass" to try, and that, if caught, he cannot be prosecuted "because he never had a great chance to escape anyway."

By creating a dummy in his bed, deliberately absenting himself from his cell during a lockdown, and by proceeding to hide in the shower, appellant displayed an intention to escape from jail through a premeditated plan.

B.  Substantial Step

A "substantial step" is generally defined as an overt act that is "more than preparation for" the intended crime.  Minn. Stat. § 609.17, subd. 1 (2002).  Appellant argues that his actions were such that an escape was inherently impossible because he did not take a substantial step towards committing the crime.  Appellant argues that because no weapons or other means of escaping were found on him, he was unprepared for an escape and thus failed to take a substantial step towards committing the crime.  He argues that his futile attempt to deceive correctional officers with a dummy and his lack of resistance when he was found in the shower room is evidence that he took no substantial step to escape. 

When appellant hid a body dummy in his bedclothes, failed to return to his cell during lockdown, and then hid in the shower room, he went beyond mere "preparation."  He now had begun to commit the crime of escape from custody.  Appellant took a substantial step towards the commission of the crime when he left his cell with the dummy in the bed and attempted to deceive the correctional officers by hiding in the shower room.  The record easily supports the finding of a substantial step.  The making of a dummy, placing it in the bed, and leaving the cell can only be explained as an intentional decision to deceive prison staff as to his whereabouts.  Appellant's actions were a substantial step towards escaping from custody. 

Appellant argues that the state failed to prove attempt beyond a reasonable doubt because it was impossible for him to escape from custody.  While Minnesota does not normally recognize the defenses of factual or legal impossibility, inherent impossibility is a recognized defense to a charge of attempt.  State v. Bird, 285 N.W.2d 481, 482 (Minn. 1979).  Minn. Stat. § 609.17, subd. 2 (2002), provides that

[a]n act may be an attempt notwithstanding the circumstances under which it was performed or the means employed to commit the crime intended or the act itself were such that the commission of the crime was not possible, unless such impossibility would have been clearly evident to a person of normal understanding.

(Alteration in original) (emphasis added).  The impossibility provision "is designed to exclude cases of such obvious impossibility that some other explanation than normal criminal design must account for the act."  Minn. Stat. Ann. § 609.17, advisory comm. cmt. (2003). 

For illustrative purposes, the advisory committee has stated that the defense of inherent impossibility would apply if a person used a popgun to sink a battleship.  See Minn. Stat. Ann. § 609.17, advisory comm. cmt. (2003).  Assume that an individual is sitting on the banks of an ocean and anchored two miles off shore and clearly visible is a huge battleship.  The defendant points a popgun or a water pistol, each with an effective range of about seven feet, pulls the trigger, and says, "Bang, you are sunk."  As much as the federal government and the Navy dislike attacks on battleships, if these are the only facts, even the FBI and the anti-terroristic folks will not be able to make a case of attempted criminal damage to a navy battleship.  If the person persists in so claiming that he was serious, mental-competence hearings and a civil commitment are in his future.  Courts are not going to allow the federal authorities with a straight face, on these facts, to charge the "shooter" with a serious federal felony.  That is the explanation behind the committee's "popgun analogy."  That is not close to our facts. 

Here, it is possible that appellant could have completed the escape by leaving the shower area, remaining undetected, and getting to the outside through some other means.  Difficult, yes, but, impossible, no.  All state penitentiaries and county jails customarily have more than one door that must be passed through to exit the facility.  Yet, year after year there are reported numerous attempted escapes and a handful of successful escapes.  Locked doors or not, it is possible to escape from a closely guarded facility; all attempted escapes are treated most seriously by corrections. 

Appellant was faced with escape conditions no more or less difficult than those any other inmate in a secure prison system would face.  The slim chance that appellant would succeed does not extinguish his chance of being fairly convicted.  In that he succeeded.  He was.

3.  Pro Se Arguments

In his pro se brief appellant argues that he did not receive a fair trial, he did not receive an adequate interpreter, and was unable to call certain witnesses or present certain evidence.  We have reviewed appellant's pro se brief, and it does not change our decision. 

Affirmed.