State of Minnesota, Respondent, vs. Troy Kevin Devens, Appellant.

This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C7-03-144

 

 

State of Minnesota,

Respondent,

 

vs.

 

Troy Kevin Devens,

Appellant.

 

 

Filed November 18, 2003

Affirmed

Halbrooks, Judge

 

 

Ramsey County District Court

File No. K9014204

 

 

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

 

Susan Gaertner, Ramsey County Attorney, Jeanne L. Schleh, Assistant County Attorney, 50 Kellogg Boulevard West, Suite 315, St. Paul, MN 55102 (for respondent)

 

Barry V. Voss, 527 Marquette Avenue, Suite 2355, Minneapolis, MN 55402 (for appellant)

 

 

 

            Considered and decided by Randall, Presiding Judge, Toussaint, Chief Judge, and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N

HALBROOKS, Judge

            Appellant challenges his conviction for aiding and abetting felony theft over $500, arguing that (1) the evidence was insufficient to support the conviction and (2) he was prejudiced by prosecutorial misconduct.  We affirm.

FACTS

            On October 26, 2001, a passerby called police after seeing a man later identified as appellant Troy Kevin Devens standing inside a fenced area near the back of a Home Depot store in Maplewood.  Devens was observed to be passing snow blowers over the fence to another man standing next to a dark sport utility vehicle (SUV).  Police arrived within seconds and detained appellant, whom the passerby identified at the scene as the man he had seen inside the fenced area.  The other man took off in the SUV, which police later learned was registered to appellant.  The police found three snow blowers outside the fence.  The Home Depot manager confirmed that the snow blowers, which were valued at approximately $2,200, belonged to Home Depot and were typically stored inside the store. 

            Devens was charged with aiding and abetting felony theft in excess of $500 in violation of Minn. Stat. §§ 609.52, subds. 2(1), 3(3)(a), .05 (2000).  He pleaded not guilty. 

            At trial, the state called the police officer who had arrested appellant to testify.  Near the conclusion of the officer's direct testimony, the following exchange took place:

Q:        Now, besides the police report that you wrote in this case and taking Mr. Devens into custody, what . . . is your further involvement in this case, if any?

A:        I had read him . . . a Miranda warning.

 

Q:        Okay.  Officer, I'm not going to ask about that.

The passerby who first called the police testified that appellant was wearing a hooded sweatshirt at the time of the alleged theft.  Appellant's fiancée testified that appellant was wearing a hoodless jacket when she picked him up from the Ramsey County jail after his arrest.  In closing argument, the prosecutor called the jury's attention to appellant's fiancée's specific testimonial reference to the jacket.  The prosecutor suggested that "what happened was Mr. Devens, . . . who's been sitting through all of the testimony, everything, shared [the passerby's testimony concerning the jacket] with [his fiancée]" in order to discredit the passerby's testimony that appellant was the man he saw on October 26.

A jury found appellant guilty as charged.  The district court imposed a stayed sentence of one year and one day, 45 days in the workhouse, and five years of probation.  This appeal follows. 

D E C I S I O N

I.

 

            Appellant argues that the state presented insufficient evidence that (1) the case was properly venued in Ramsey County and (2) he aided and abetted a theft.  This court reviews a claim of insufficiency of the evidence to determine whether, based on the evidence presented at trial, a jury could have reasonably concluded that the accused is guilty of the offense.  State v. Vick, 632 N.W.2d 676, 690 (Minn. 2001).  The evidence must be viewed in a light most favorable to the state and the jury is assumed to have believed the state's witnesses and disbelieved the defendant's witnesses.  Id.  If, giving due regard to the presumption of innocence and to the state's burden of proving the defendant's guilt beyond a reasonable doubt, the jury could reasonably have found the defendant guilty, we will uphold the jury's verdict.  State v. Johnson, 568 N.W.2d 426, 435 (Minn. 1997).

It is the exclusive role of the fact-finder to determine the weight and credibility of witness testimony.  State v. Folkers, 581 N.W.2d 321, 327 (Minn. 1998).  An appellant has the burden of showing that the jury could not reasonably have found the appellant committed the charged acts.  In re Welfare of T.M.V., 368 N.W.2d 421, 423 (Minn. App. 1985).      

            As to venue, the state must prove beyond a reasonable doubt that the charged offense occurred in the charging county.  Minn. Const. art. I, § 6.  "Venue is determined by all the reasonable inferences arising from the totality of the surrounding circumstances."  State v. Carignan, 272 N.W.2d 748, 749 (Minn. 1978).

In a criminal case venue is generally proved by direct evidence identifying the county in which the offense occurred.  In the absence of specific evidence of the name of the county, the conviction may be sustained if the verdict is based on testimony from which the jury may reasonably infer proper venue.

 

State v. Larsen, 442 N.W.2d 840, 841 (Minn. App. 1989). 

Here, it is undisputed that the offense occurred at the Home Depot on White Bear Avenue in Maplewood (within Ramsey County), the complaint was issued in Ramsey County, Maplewood police responded to the scene, the case was tried in the Ramsey County Courthouse, and the jury was specifically instructed that it must find that the crime occurred in Ramsey County.  We conclude that there was sufficient evidence for the jury to reasonably infer that the case was properly venued in Ramsey County.

            Devens next argues the state presented insufficient evidence to show that he aided and abetted the theft.  A person can be held criminally liable for a crime committed by another if he "intentionally aids, advises, hires, counsels, or conspires with or otherwise procures the other to commit the crime."  Minn. Stat. § 609.05, subd. 1 (2000).  The state must show "some knowing role in the commission of the crime by a defendant who takes no steps to thwart its completion."  State v. Ostrem, 535 N.W.2d 916, 924 (Minn. 1995) (quotation omitted).  If the "person is present at the commission of a crime without disapproving or opposing it," that conduct along with other circumstances may be an adequate basis for the jury to "reach the conclusion that he assented to the commission of the crime, lent to it his approval, and was thereby aiding and abetting its commission."  State v. Parker, 282 Minn. 343, 355-56, 164 N.W.2d 633, 641 (1969). 

            As appellant correctly argues, aiding and abetting is not a separate or different charge from felony theft.  See Ostrem, 535 N.W.2d at 923.  But appellant incorrectly argues the state was required, and failed, to prove the commission of the underlying theft that appellant aided and abetted.  Appellant cites no authority for the proposition that the state was required to prove the identity or liability of his accomplice.  Instead, the state's burden is to raise a reasonable inference that appellant participated in the commission of the crime at the time and place charged.  See Parker, 282 Minn. at 356, 164 N.W.2d at 641.  "This inference is a fact question for jury determination, and the jury found, as it could, that [appellant] was such a participant."  Id.  We conclude that based on the evidence presented at trial, the jury reasonably determined that appellant aided and abetted the snow blower theft.

II.

            Appellant next argues the prosecutor committed misconduct at trial by (1) eliciting testimony from the arresting officer that appellant was read his Miranda rights and (2) suggesting in closing argument that appellant may have instructed his fiancée on the substance of her testimony.  Appellant maintains that the prosecutor's actions unfairly focused attention on his constitutional right to remain silent at the time of his arrest and allowed the jury to infer his guilt.

This court reviews claims of prosecutorial misconduct only to determine whether "the misconduct, when considered in light of the whole trial, impaired the defendant's right to a fair trial."  State v. Powers, 654 N.W.2d 667, 678 (Minn. 2003) (citing State v. Johnson, 616 N.W.2d 720, 727-28 (Minn. 2000)).  In cases in which the misconduct was serious, the standard is whether the misconduct is harmless beyond a reasonable doubt.  Id.  "[M]isconduct is harmless beyond a reasonable doubt if the verdict rendered was surely unattributable to the error."  Id. (quoting State v. Hunt, 615 N.W.2d 294, 302 (Minn. 2000)).  Where the misconduct is less serious, the standard is whether the misconduct likely played a substantial part in influencing the jury to convict.  Id.

            A party who, like appellant, does not object to any of the prosecutor's statements at trial generally waives any claim of misconduct.  See State v. Ray, 659 N.W.2d 736, 746 n.3 (Minn. 2003).  This court may nonetheless grant relief where the alleged error constitutes "plain error affecting substantial rights or an error of fundamental law."  State v. Cross, 577 N.W.2d 721, 726 (Minn. 1998).  The error warrants reversal only where it "seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings."  State v. Crowsbreast, 629 N.W.2d 433, 437 (quotation omitted).

No such error occurred here.  It is true that the state's use at trial of a defendant's silence at the time of arrest and after receiving Miranda warnings violates the Due Process Clause of the Fourteenth Amendment.  State v. Billups, 264 N.W.2d 137, 139 (Minn. 1978).  But here, a review of the transcript plainly shows that the arresting officer's reference to the Miranda warning was made in response to a general question from the prosecutor, who immediately informed the officer he was not asking about Miranda.  This innocuous exchange simply does not support appellant's contention that the prosecutor intentionally elicited testimony concerning appellant's choice to remain silent following arrest.  Nor does appellant cite to any record evidence indicating that the officer's testimony played a substantial part in influencing the jury to convict. 

            Appellant next argues the prosecutor committed misconduct during closing argument by suggesting that appellant had instructed his fiancée on the content of her testimony.  Appellant contends that the prosecutor's suggestion impermissibly "allowed the jury to infer the appellant was guilty of the crime." 

"The propriety of a prosecutor's final argument is a matter within the sound discretion of the trial court."  State v. Parker, 353 N.W.2d 122, 127 (Minn. 1984).  "When assessing prosecutorial misconduct, the closing argument will be considered as a whole."  Powers, 654 N.W.2d at 678.  Appellant's contention that the prosecutor's reference to appellant's fiancée was prejudicial is without support in the record.  The prosecutor attempted to impeach appellant's fiancée's credibility, but appellant indicates no evidence or authority supporting his argument that a prosecutor commits misconduct by questioning an adverse witness's credibility in order to convince the jury the defendant is guilty as charged.

            Affirmed.