State v. Anderson

405 N.W.2d 527, 1987 Minn. App. LEXIS 4355
Court of Appeals of Minnesota·Decided May 12, 1987·No. C9-86-1547·Published·Cited by 11 cases

Opinions

OPINION

EDWARD D. MULALLY, Judge.

Appellant Duane Anderson was convicted by a jury of receiving stolen property, Minn.Stat. § 609.53, subd. 1(1) (1984), and handling stolen livestock of a value in excess of $300, Minn.Stat. § 609.551, subd. 2 (1984). Appellant’s primary contention on appeal is that the evidence was insufficient to prove that he knew that calves found on his farm were stolen. We affirm the convictions.

FACTS

In the summer of 1985, appellant, his wife, and five children lived on a rented farm in Hancock, Minnesota. Appellant contends that in May and June, 1985, he advertised on two local radio stations and in stores that he wanted to buy calves. The radio stations do not keep records of such call-ins. Appellant had bought calves for 10 years to raise to slaughter for his family’s use. Appellant also raised chickens and pigs. Appellant was working temporarily as a full-time driver for UPS.

Leonard Wulf, his sons, and some other relatives operate Wulf Limousin Farms. Limousin is a somewhat distinctive breed of beef cattle. On June 9, 1985, two one-week old bull calves were stolen from Leonard Wulf’s farm. On June 22, 1985, two four to five day old heifers were stolen from Wulf’s farm. The thefts were reported to police, but Wulf asked for no publicity and no news release was issued by the police. Wulf lived about 7 to 10 miles from appellant.

Wulf asked friends and neighbors to look for the calves. On July 12,1985, the calves were observed on appellant’s property.

Stevens County Deputy Sheriff Steven Hammond obtained a search warrant and went to appellant’s farm the next day. Wulf went with him and identified the four calves found in a converted granary. Wulf noticed that identification tags which had been placed in the calves’ ears were missing. Deputy Hammond talked to appellant’s wife. Hammond testified she told him appellant had purchased them from an acquaintance. Appellant’s wife denied telling Hammond this and claimed she told Hammond appellant bought them from someone he had not known.

Appellant, who was not at home at the time of the search, went to the sheriff’s [529]*529office a few days later. He told Hammond he had purchased the four calves from two strangers. He said the men called him and brought the calves to his farm. Appellant did not obtain a receipt. Appellant gave a general description of the men and their truck. Appellant denied knowing that the calves were stolen and told Hammond that he would not have purchased the calves if he had known they were stolen. Appellant described his efforts in locating the men— he went out to a farm and checked with bars or liquor stores in nearby towns to see if anyone had indicated they had calves for sale.

Appellant was later arrested and charged with receiving stolen property and handling stolen livestock. Appellant and his wife testified that after they bought the calves, he placed them in the granary which was surrounded by an open fence, in full view of passing motorists from a road 100 to 125 feet away. Appellant testified that he was not suspicious of the sale because he had previously bought livestock from people who brought animals out to his farm and he customarily paid cash. Appellant also testified that it was common to buy and sell young calves. Hammond and Wulf, however, testified that the sale of such young calves was extremely uncommon and unlikely. ' '

Leonard Wulf testified that he drove by appellant’s home after June 23, 1985, on at least one occasion while looking for the calves and he recalled seeing the granary door closed. On rebuttal, Wulf testified he' was sure the granary door was shut. Wulf stated he could not recall looking at the barn door on appellant’s property.

A neighbor of appellant, Arnold Koehl, also testified as a rebuttal witness. He had been asked by the Wulfs to watch for the missing calves. Koehl testified that he drove by appellant’s farm about once each day during the June 23 to July 13 period. Koehl testified the door to the granary was closed during this time period and that sometime before the search warrant was executed, the door was open but boards had been placed across the door!

Appellant was convicted of receiving stolen property and handling stolen livestock. He was sentenced to a term of 18 months imprisonment with execution stayed. Appellant was placed on probation for five years on condition that he serve 30 days in jail and pay $300 restitution.

ISSUES

1. Was the evidence sufficient to sustain appellant’s convictions?

2. Was the evidence sufficient to sustain the jury’s finding that the calves were worth more than $1000?

3. Did the trial court err in allowing the State to call Koehl as a rebuttal witness?

4. Did the trial court abuse its discretion in determining the amount of restitution?

ANALYSIS

I.

Appellant’s convictions were based on circumstantial evidence. A jury is in the best position to evaluate circumstantial evidence surrounding the crime, and its verdict is entitled to due deference. State v. Berndt, 392 N.W.2d 876, 880 (Minn.1986), cert. denied, — U.S. —, 107 S.Ct. 909, 93 L.Ed.2d 859 (1987); State v. Daniels, 380 N.W.2d 777 (Minn.1986).

As stated in Bemdt:

The circumstantial evidence in a criminal case is entitled to as much weight as any other kind of evidence so long as the circumstances proved are consistent with the hypothesis that the accused is guilty and inconsistent with any rational hypothesis except that of his guilt.

Berndt, 392 N.W.2d at 880 (quoting State v. Jacobson, 326 N.W.2d 663, 666 (Minn.1982)). The evidence as a whole need not exclude all possibility that the defendant is innocent, it must only make such a theory seem unreasonable. State v. Anderson, 379 N.W.2d 70, 78 (Minn.1985), cert. denied, — U.S. —, 106 S.Ct. 2248 90 L.Ed.2d 694 (1986). See also State v. Larson, 393 N.W.2d 238 (Minn.Ct.App.1986) (jury is free to disbelieve defendant’s testi[530]*530mony setting forth alternative “reasonable explanation” of events).

On appeal this court does not retry the facts but must take the view of the evidence most favorable to the State and must assume that the jury believed the State’s witnesses and disbelieved any contradictory evidence. State v. Turnipseed, 297 N.W.2d 308, 313 (Minn.1980). If the jury, giving due regard to the presumption of innocence and to the State’s burden of proving defendant guilty beyond a reasonable doubt, could reasonably have found the appellant guilty, that verdict will not be reversed. Id.

To justify the convictions, the burden was on the State to prove that appellant knew the calves were stolen. Appellant argues that there was no evidence presented which allowed the jury to draw the inference that he knew the calves were stolen. The State points to the following circumstances as establishing sufficient proof in this regard:

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State v. Anderson, 405 N.W.2d 527, 1987 Minn. App. LEXIS 4355 (Mich. Ct. App. 1987).

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State v. Anderson
405 N.W.2d 527 (Court of Appeals of Minnesota, 1987)