State of Minnesota, Respondent, vs. Javier Heredia-Perez, Appellant.

State of Minnesota, Respondent, vs. Javier Heredia-Perez, Appellant. A04-1429, Court of Appeals Unpublished, August 30, 2005.

 

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-1429

 

 

State of Minnesota,

Respondent,

 

vs.

 

Javier Heredia-Perez,

Appellant.

 

Filed August 30, 2005

Affirmed

Lansing, Judge

 

 

Watonwan County District Court

File No. LS-04-38

 

 

Mike Hatch, Attorney General, Tibor M. Gallo, Assistant Attorney General, Suite 1800, 445 Minnesota Street, St. Paul, MN 55101; and

 

Lamar Piper, Watonwan County Attorney, 710 Second Avenue South, P.O. Box 109, St. James, MN 56081 (for respondent)

 

John Stuart, State Public Defender, Sharon E. Jacks, Assistant Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN 55414 (for appellant)

 

 

            Considered and decided by Minge, Presiding Judge; Lansing, Judge; and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N

LANSING, Judge

            Javier Heredia-Perez appeals from his conviction on two counts of offering a forged check and one count of conspiracy to offer a forged check, arguing that the evidence is insufficient to establish that he offered the checks with an intent to defraud or that he agreed with others to offer a forged check.  Because the evidence is sufficient for the jury to find that Heredia-Perez intended to defraud when he presented a forged check using fake identification at a savings and loan and when he presented and cashed a forged check using fake identification at a grocery store, we affirm the two counts of offering a forged check.  We also affirm the conspiracy count because the evidence is sufficient for the jury to find that Heredia-Perez agreed and acted in concert with others to offer the forged checks. 

F A C T S

 

The state charged Javier Heredia-Perez with two counts of offering a forged check, two counts of falsely endorsing a forged check, and one count of conspiracy to offer a forged check.  The charges were based on his actions, involving eight others, in attempting to cash forged checks purportedly issued by a division of ConAgra Foods Company.  At trial the state presented nine witnesses who testified to various aspects of the activities that took place in essentially one afternoon.  The testimony included the following account of events. 

Heredia-Perez, accompanied by three others, entered the St. James Federal Savings and Loan where he attempted to cash a forged payroll check using a fake driver's license for identification.  The check, with a face amount of $387.05, was issued to "Marcos Castro" as payee and endorsed with that name.  ConAgra Foods Company purportedly issued the check, but the check did not have the watermark or the touch-sensitive purple ink used on ConAgra payroll checks.  The payee's listed address of 1841 Fourth Avenue in St. James is a nonexistent address.  The fake driver's license displayed Heredia-Perez's photograph but listed the name of "Marcos Castro," with an address of 2216 East River Street, Oronco, Minnesota.  The license misspelled Oronoco, had an inauthentic printed signature, and did not contain the holograms present on an authentic Minnesota license. 

When Heredia-Perez offered the check for payment, the teller believed that something was "not quite right" on the license because the signature and date were typed.  She also noticed that the address on the license did not match the address on the check.  While she was checking with her supervisor, Heredia-Perez and his three companions left the savings and loan without asking for the return of the check or the license. 

About forty-five minutes later, Heredia-Perez successfully cashed an identical payroll check at the Super Fair grocery store in St. James by presenting an identical fake license.  That check, which had the same check number and identifying information as the earlier check, was also endorsed by "Marcos Castro."  Within five minutes of that transaction, the grocery store clerk cashed two more checks for other Latino men.    

An hour later, an investigating St. James police officer saw a green Dodge Intrepid with out-of-state license plates, which matched the vehicle description provided by a Super Fair employee.  The officer stopped the car as it was leaving the parking lot of the China Restaurant in St. James.  A second police officer drove to the parking lot with the fake driver's license that he had obtained from the savings-and-loan teller and used the picture on the license to identify Heredia-Perez as one of the four occupants of the Dodge Intrepid. 

Later that afternoon police stopped a second car with out-of-state license plates and identified two of the five occupants as men who had offered forged checks at another local bank.  After arresting the occupants of the second car and executing a warranted search, the police recovered additional fake driver's licenses and forged checks with a total face value of $7,587.  No checks or licenses were found in the Dodge Intrepid.

            Four days later the owner of China Restaurant discovered forged checks, fake identification cards, and fake driver's licenses in the trash of the restaurant's restroom.  One of the checks was for $387.05 and payable to Marcos Castrothe identical amount and payee as the checks Heredia-Perez offered at the savings and loan and the grocery store.  The checks retrieved from the trash totaled approximately $11,000.  

            Heredia-Perez testified in his defense.  He said that he had traveled from Illinois to Minnesota with two other men to work on a painting job.  When he arrived in Minnesota, a man named Deibydd Cortez-Garcia supplied him with the checks and the licenses.  He believed the checks were an advance for the painting.  He testified that he knew that the identification was fake, but claimed he needed fake identification because he is an undocumented person. 

            The district court submitted three of the five charges to the jurytwo counts of offering a forged check in violation of Minn. Stat. § 609.631, subd. 3 (2002), and one count of conspiracy to offer a forged check under Minn. Stat. §§ 609.175, subd. 2, .631, subd. 3 (2002).  The jury found Heredia-Perez guilty of the three charges, and the district court sentenced him to concurrent, stayed sentences of one year and a day.  In this appeal Heredia-Perez challenges the sufficiency of the evidence to support the jury's determination (1) that he offered the checks with intent to defraud and (2) that he agreed with others to offer a forged check.

D E C I S I O N

On a claim of insufficient evidence to support a conviction, we carefully review the record, in a light most favorable to the conviction, to determine whether a jury could reasonably reach a guilty verdict based on the record and inferences drawn from the record.  State v. Robinson, 604 N.W.2d 355, 365-66 (Minn. 2000).  Recognizing that the jury is in the best position to determine witness credibility, we assume that the jury believed testimony supporting the verdict and disbelieved evidence to the contrary.  State v. Henderson, 620 N.W.2d 688, 705 (Minn. 2001); see also State v Doppler, 590 N.W.2d 627, 635 (Minn. 1999) (stating that determining witness credibility is usually exclusive province of jury).

Circumstantial evidence is weighed the same as other kinds of evidence.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  To sustain a conviction based entirely on circumstantial evidence, however, the evidence as a whole must be consistent only with the defendant's guilt and inconsistent with any rational hypothesis other than guilt.  Robinson, 604 N.W.2d at 366. 

I

Heredia-Perez does not contest his possession of forged checks and fake identification but maintains that the record supports the rational hypothesis that he lacked intent to defraud because he did not know the checks were forged.  See Minn. Stat. § 609.631, subd. 3 (2002) (stating that conviction of offering forged check requires that person "with intent to defraud" offer or possess forged check regardless of whether check is accepted).  Heredia-Perez acknowledges that he used a fake driver's license because he was an undocumented person without identification.  But he contends that he believed that the checks were really issued as an advance on the promised painting job and that he did not intend to defraud the savings and loan or the grocery store.

Because knowledge is intangible and intent is a state of mind, intent is generally proved circumstantially "by inference from words and acts of the actor both before and after the incident."  State v. Johnson, 616 N.W.2d 720, 726 (Minn. 2000); see also State v. Slaughter, 691 N.W.2d 70, 77 (Minn. 2005) (observing that circumstantial evidence supported reasonable inference of intent).  The stricter standard for evaluating circumstantial evidence still recognizes, however, that the jury is in the best position to evaluate the evidence and draw inferences from that evidence.  State v. Olhausen, 681 N.W.2d 21, 26 (Minn. 2004). 

The evidence is undisputed that Heredia-Perez left the savings and loan without requesting the return of the fake license or the forged check.  According to his testimony, he received a call on his cell phone as he left and then received identical fake identification and a duplicate of the check that he had abandoned.  He successfully cashed the second check at the grocery store.  A jury could reasonably rely on this evidence to infer that Heredia-Perez knew that the checks were forged and that he therefore intended to defraud the savings and loan and the grocery store when he offered the checks to be cashed.

Heredia-Perez argues that the evidence is deficient because no checks were found in the Dodge Intrepid where he was a passenger.  Nonetheless, he admits that he was present in China Restaurant's restroom four days before the owner found a bundle of discarded checks that included a check identical with the other checks he offered.  The jury was entitled to accept or reject the credibility of Heredia-Perez's testimony explaining his check-cashing activities as solely attributable to his failure to have identification as an undocumented person.  The jury was entitled to consider his explanation in light of his testimony that he had received W-2 statements from his former employer in his own name in Chicago and also to weigh his explanation that he had left Illinois to work on a painting job against the uncontradicted evidence that he brought no clothes or supplies to use for painting.  See State v. Asfeld, 662 N.W.2d 534, 545-46 (Minn. 2003) (deferring to jury's determination of witness credibility in evaluating circumstantial evidence).  

Heredia-Perez argues that, by failing to submit to the jury the two counts of check forgery, the district court implicitly found Heredia-Perez's testimony credible.  But the record does not indicate the reasons for not submitting those charges, and it is equally possible that the court concluded the charges were duplicative.  In any event, the jury, not the judge, had the responsibility to find the facts and determine the witnesses' credibility on the charges submitted to the jury.

Viewing the record in a light most favorable to the verdict, the circumstantial evidence is fully consistent with Heredia-Perez's guilt.  The jury had the responsibility to determine whether Heredia-Perez presented an account of the facts that established a rational hypothesis other than guilt.  The jury rejected this alternative explanation, and this rejection is consistent with the record.  Because the record presents evidence that is consistent with guilt and inconsistent with any rational hypothesis other than guilt, we affirm the convictions for offering forged checks.  

II

 

Heredia-Perez argues that the circumstantial evidence is insufficient to support his conspiracy conviction because it comports with a reasonable theory that he did not agree with others to offer forged checks.  A person is guilty of conspiracy when that person "conspires with another to commit a crime and in furtherance of the conspiracy one or more of the parties does some overt act in furtherance of [the] conspiracy."  Minn. Stat. § 609.175, subd. 2 (2002); see also State v. Kuhnau, 622 N.W.2d 552, 556 (Minn. 2001) (stating that conviction of conspiracy requires agreement of two or more people to commit crime and overt act in furtherance of that agreement).  

Direct evidence of a conspiracy is not required if the conspiracy may be inferred from the circumstances.  State v. Hatfield, 639 N.W.2d 372, 376 (Minn. 2002).  The agreement required to support a conviction for conspiracy need not be proved through evidence of a subjective meeting of the minds but can be established by objective evidence indicating an agreement.  Id.; State v. Christopher, 305 Minn. 226, 230-35, 232 N.W.2d 798, 801-03 (1975).  Thus, the state is not required to prove the existence of a formal agreement so long as the evidence objectively shows an agreement to commit a crime.  Hatfield, 639 N.W.2d at 376.  If "several persons commit separate acts which form parts of a connected whole, an inference of conspiracythat there was concert in both planning and executionis permissible."  State v. Burns, 215 Minn. 182, 189, 9 N.W.2d 518, 522 (1943). 

Heredia-Perez contends that his mere association with people engaged in an illegal activity does not prove the existence of an agreement.  This contention, however,  significantly understates the objective evidence of Heredia-Perez's involvement.  The evidence established that Heredia-Perez (1) drove with two men to Minnesota, where they immediately met Cortez-Garcia, who supplied Heredia-Perez with a fake license and forged check; (2) accompanied members of the group into a savings and loan to attempt to use the fake license to cash a check issued to a fictitious person; (3) arranged to meet Cortez-Garcia to receive an identical fake license and forged check, which Heredia-Perez then successfully offered at the grocery store at the same time that two other members of the group cashed forged checks; (4) engaged in these activities at the same time that a second car, detained and searched at the same grocery store, produced multiple forged checks and fake identification similar to the checks and identification used by Heredia-Perez; and (5) entered, with other group members, the restroom of China Restaurant where the owner subsequently found in the trash a large number of forged checks, including a forged check identical with the two that Heredia-Perez had offered. 

This evidence, particularly Heredia-Perez's use of a cell phone to maintain contact with Cortez-Garcia and another member of the group as well as Heredia-Perez's participation in offering the forged check and fake identification at the savings and loan and at the grocery store, provided a basis for the jury to find that the acts were "parts of a connected whole" in a carefully orchestrated scheme to offer a significant number of forged checks in St. James on a single day.  See Burns, 215 Minn. at 189, 9 N.W.2d at 522 (permitting inference of conspiracy from evidence of separate acts forming parts of connected whole that showed concert in planning and execution).  Relying on federal precedent involving a conspiracy prosecution, Heredia-Perez argues that the state was required to prove that Cortez-Garcia benefited from Heredia-Perez's actions in offering the forged checks.  See United States v. Kenny, 645 F.2d 1323, 1334-35 (9th Cir. 1977) (addressing elements necessary to prove agreement in "wheel" conspiracy that involves one central figure dealing with other individuals in separate transactions).  Heredia-Perez neither presented this argument to the district court nor established on appeal that the distinct facts of Kenny provide any basis for argument by analogy.

Taking the record as a whole and in light of the jury's verdict, the evidence is sufficient for the jury to determine beyond a reasonable doubt that Heredia-Perez conspired with others to commit a crime and that he and others committed overt acts in furtherance of the conspiracy.  We therefore affirm the jury's finding of guilt on the conspiracy count as well as the two counts of offering a forged check.  

            Affirmed.