State of Minnesota, Respondent, vs. Ezekiel David McDermott, Appellant.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2000).

STATE OF MINNESOTA

IN COURT OF APPEALS

C1-00-1694

State of Minnesota,

Respondent,

vs.

Ezekiel David McDermott,

Appellant.

Filed June 26, 2001

Amundson, Judge

St. Louis County District Court

File No. K6-00-100262

John M. Stuart, State Public Defender, Lawrence W. Pry, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, St. Paul, MN 55414 (for appellant)

Mike Hatch, Attorney General, Robert A. Stanich, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, Minnesota 55103; and

Alan L. Mitchell, St. Louis County Attorney, 100 North Fifth Avenue West, Duluth, MN 55802 (for respondent)

            Considered and decided by Amundson, Presiding Judge, Lansing, Judge, and Shumaker, Judge.

AMUNDSON, Judge

            Appellant was convicted of first-degree burglary and attempted first-degree aggravated robbery.  A key state witness, who, at trial, identified appellant as the burglar, admitted to lying to police about the crime during the investigation.  We affirm.

            Seventy-two-year-old Raymond Rask was at home during the early morning of February 12, 2000 when he was awakened by a noise.  Rask went into his kitchen where he saw a tall, skinny male standing with a sock over his head, holding a gun.  The intruder demanded that Rask open his safe.  From his gestures, it appeared to Rask that the intruder knew where the safe was located.  Rask did not respond and the intruder told Rask he would shoot him unless he opened the safe.  Rask then heard a "popping sound," which he believed to be a gunshot.

            Rask walked to the room where he kept his safe, but then grabbed his rifle, cocked it loudly, and returned to the kitchen.  By the time Rask had returned to the kitchen, the intruder was running from the house.  Outside, Rask saw a light-colored car by his driveway and heard people yelling near the car, but could not make out what they were saying. 

            Rask called 911 and reported the burglary.  While searching the premises, the police found tire marks and distinctive footprints in the driveway; found a .22-caliber Winchester "Super X" brand shell casing in the dog's water dish in the kitchen near where Rask heard the "pop;" and found a small bullet hole in a cabinet and a lead slug in a videotape inside the cabinet. 

            Because the intruder seemed to know where the safe was located and had turned on the lights despite the unusual location of the light switch, Deputy Joseph Skofich, who was conducting the investigation, suspected that Rask's teenage grandsons, Adam and Tom Rask, might have been involved in the crime.  However, Rask was sure the intruder was not one of his grandsons; he was sure he would have recognized either of their voices. 

            Pursuant to a warrant, Skofich and other officers searched the Virginia, Minnesota apartment of Shelby Olsen, the former apartment of Ezekiel David McDermott and Adam Rask.  During the search, the officers found ammunition for a number of firearms, including .22 caliber Winchester Super X cartridges.  McDermott was arrested.

            Olsen testified at trial that shortly after midnight on February 12, 2000, she, Adam, and McDermott all went for a ride in McDermott's car - which they often did when bored.  They left Virginia going north.  Eventually McDermott, who was driving, turned onto back roads; Olsen did not know where they were going.  McDermott stopped near a house, got out of the car, and retrieved a rifle from the trunk.  Adam got into the driver's seat and McDermott into the front passenger's seat.  They pulled off the road into a driveway.  McDermott, who was wearing a "white thing" over his head, jumped out of the car with the gun and entered the house. 

            Adam turned the car around and, about ten minutes later, McDermott came "flying" out of the house and ran down the driveway.  Adam remarked to Olsen that he wondered why McDermott flew out of the house and what his grandfather could have done.  Adam pulled the car up to McDermott, who jumped into the car, and they all drove back to Virginia.  On their return trip, McDermott said he could not believe that the resident had shot his gun.  He also said he had fired his gun to let the resident know he was serious. 

            McDermott also testified.  He claimed that he had not lived with Olsen since she had requested that he move out earlier in February.  He stated he had been sleeping in his car since he had moved out of Olsen's apartment, and was doing so the night of February 11-12, 2000 in Eveleth, Minnesota.  He was awakened at 3:00 a.m. by a friend, with whom he briefly chatted.  In the morning, McDermott stated that he drove to Olsen's apartment where he found the door open, so he entered the apartment and went to sleep.  Olsen returned and was very angry to see him there.  McDermott denied burglarizing Rask's home. 

            McDermott was charged with two counts of burglary in the first degree, one count of attempted aggravated robbery in the first degree, and one count of assault in the second degree.  After a jury trial, he was found guilty of all charges.  He was sentenced to 48 months for first degree burglary and 36 months for attempted aggravated robbery to be served concurrently.  This appeal followed.

Appellant contends that his conviction is based partially upon the testimony of Shelby Olsen and that her testimony was not credible.  Olsen's first statement to law enforcement officers about the incident differed from subsequent statements and her trial testimony. 

            Given the facts in the record and any legitimate inferences that can be drawn from those facts, we are limited on appeal to ascertaining whether a jury could reasonably have found the defendant guilty of the charged offenses.   State v. Pierson, 530 N.W.2d 784, 787 (Minn. 1995).  It is the jury's exclusive function to weigh the credibility of witnesses.  State v. Folkers, 581 N.W.2d 321, 327 (Minn. 1998).  Therefore, we assume the jury believed the state's witnesses and disbelieved any evidence to the contrary and otherwise review the evidence in the light most favorable to the verdict.  Pierson, 530 N.W.2d at 787.  Even where jurors believe that a witness has willfully testified falsely to a material fact, they are free to believe or disbelieve a witness's testimony about other facts.  State v.Poganski, 257 N.W.2d 578, 581 (Minn. 1977).       

McDermott does not contend that Olsen's testimony, if believed, in conjunction with the other testimony presented would not sufficiently prove the elements of the crimes of which he was convicted.  Rather, he simply argues that her testimony was not credible.  Rask testified that an armed intruder entered his residence and demanded that he open his safe.  Evidence was presented that the intruder fired a gun while inside the house.  Olsen's testimony linked McDermott to the crime.  She testified that McDermott had entered a house with a gun and came "flying" out of the house ten minutes later.  She testified that Adam had made statements to Olsen that indicated that the home was his grandfather's. 

The jury was free to believe or disbelieve Olsen's testimony.  Olsen was thoroughly cross-examined about the previous statements she made to police that were inconsistent with her testimony at trial.  The jury thus had the opportunity to weigh Olsen's testimony and defense counsel's challenges to that testimony based on her prior statements to police.  It is within the province of the jury's duties to assess credibility.  We do not usurp that function.  Olsen's testimony, taken with Rask's testimony, supports McDermott's conviction for burglary and attempted aggravated robbery. 

            Affirmed.