Opinion
No. C1-98-1323.
Filed June 29, 1999.
Appeal from the District Court, St. Louis County, File No. K6-96-600819.
Alan L. Mitchell, St. Louis County Attorney, and
Mike Hatch, Attorney General, John B. Galus, Assistant Attorney General, (for respondent)
John M. Stuart, State Public Defender, Lyonel Norris, Assistant State Public Defender, (for appellant)
Considered and decided by Randall, Presiding Judge, Davies, Judge, and Anderson, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1998).
UNPUBLISHED OPINION
Appellant challenges his conviction for aggravated robbery in the first degree, arguing the evidence identifying him as the robber was insufficient as a matter of law. We affirm.
FACTS
Appellant Jeffrey John Taly was a former employee of the Burger King on London Road in Duluth. He worked the night shift and assisted in closing the restaurant. The closing procedure called for the dining room to be closed first while the drive-thru window was left open for an additional period of time. Normally, when the drive-thru business was slow, the night manager would open the safe and count the daily proceeds at the desk in the manager's office. Only loose change was left in the front registers at closing.
At approximately 12:48 a.m. on November 10, 1996, Taly drove up to the drive-thru and ordered a Whopper sandwich from Laura Drickhamer. Taly had previously worked with Drickhamer. Taly gave her his new telephone number and asked who was working that night. Later, Drickhamer was visited by Andrew Aasen. He entered the store through the rear security door and after speaking with Drickhamer, Aasen left through the same security door. According to Aasen, he did not slam the door shut because it was cold out and he thought he saw an employee by a dumpster and did not want to lock that person out. According to the testimony at trial, it was common knowledge among Burger King employees that the security door did not latch properly and would stand ajar if not shut firmly.
At approximately 1:22 a.m., two men entered the restaurant from the rear security door and accosted Nick Sherman. One assailant was wearing a dark blue ski mask and holding a blue-black gun with a long barrel. The other assailant was also wearing a dark ski mask and was described as carrying what appeared to be a 9 millimeter "Glock-type" handgun. The man with the dark blue ski mask pointed his gun at Sherman and told him to find the manager. The other assailant watched Drickhamer in the dining room area.
Sherman, who had previously worked with Taly at the restaurant, recognized the voice of the assailant in the dark blue ski mask as Taly's. Sherman and the assailant finally located the night manager, Paul Zebott, as Zebott was coming out of a back bathroom. The assailant ordered Zebott to turn around and open the locked manager's office. Zebott stated that he not only recognized the assailant's voice as Taly's, but also his eyes that were visible through the ski mask. The assailant then ordered Zebott and Sherman to lie facedown on the floor, took $1,442 in cash, and left. Neither assailant looked in the office safe or the front registers.
Once the assailants left, Zebott telephoned 911 and reported the robbery. Zebott told the responding officers that he believed Taly had committed the robbery. Zebott informed the officers that Taly drove a black Ford Ranger with a roll bar in the rear. Searching through old employee records, Zebott gave the police Taly's old address on Colorado Street. Drickhamer provided the phone number that Taly had given her earlier that night.
Taly's parents lived at the Colorado Street address. When the police arrived, they observed a black Ford Ranger with a warm engine that matched Zebott's description parked in the driveway. There was no answer when the police knocked on the door or telephoned the house. The police then went to Taly's mother's work address and escorted her back to the house. She opened the door and allowed the police to enter. Taly was discovered lying on a couch in the family room dressed in a t-shirt and undershorts. Taly and his mother consented to a search of the Ford Ranger parked in the driveway. During the search, the police discovered a navy blue ski mask in the toe of a boot. In a nearby trash can, the police discovered a Burger King Whopper sandwich and some french fries. Attached to the Burger King bag was a receipt indicating the purchase was made at 12:48 a.m. When the police checked Taly's new residence, his roommates stated that Taly had not been home that night.
Taly was taken into custody. Taly's mother would not consent to a search of the house without a search warrant. The police stated that they would return at 9:30 a.m. with a search warrant for the house. Before the police arrived later that morning, Taly's mother asked Taly's brother if there was anything in the house that should not be there, and if so, to get it out of the house. She then observed Taly's brother remove something from the house. He later told her he had taken Taly's pellet gun and hidden it in a discarded toilet.
The police returned to Taly's parent's house with a search warrant. They discovered a black .357 Smith Wesson revolver under the bed in the master bedroom. A pellet gun was discovered in the discarded toilet. A receipt for the pellet gun found at Taly's residence indicated it had been purchased three days before the robbery.
On November 13, 1996, a complaint was filed in St. Louis County District Court, charging Taly with first-degree aggravated robbery. During the four-day jury trial, Taly testified that he had been at a party on the night of the robbery and had stopped by the Burger King because he was hungry. He insisted that he went to his parent's home to play video games with his brother and that he decided to stay the night because it was late. Taly claimed he never heard the police knock or the phone ring. Taly also stated that he used the ski mask found in the truck when he delivered papers in the morning. The jury convicted Taly and he was sentenced to an executed prison term of 48 months, the presumptive term under the Sentencing Guidelines.
DECISION
Taly challenges his conviction, arguing that the circumstantial evidence presented by the state is insufficient as a matter of law. When considering a claim of insufficient evidence, the reviewing court is limited to an analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, is sufficient to sustain the verdict. State v. Webb , 440 N.W.2d 426, 430 (Minn. 1989). In doing so, this court will review the record for the evidence and legitimate inferences that can be drawn from the evidence and determine whether a jury could reasonably conclude the defendant was guilty of the offense charged. State v. Merrill , 274 N.W.2d 99, 111 (Minn. 1978). The reviewing court may not retry the facts but must "assume that the jury believed the state's witnesses and disbelieved any contradictory evidence." State v. Sheldon , 391 N.W.2d 537, 539 (Minn.App. 1986) (quoting Merrill , 274 N.W.2d at 111).
In addition,
[c]ircumstantial 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 for that of guilt.
State v. Steinbuch , 514 N.W.2d 793, 799 (Minn. 1994) (quoting State v. Pilcher , 472 N.W.2d 327, 335 (Minn. 1991)). The conviction may stand only where the circumstances
form a complete chain which, in light of the evidence as a whole, leads so directly to the guilt of the accused as to exclude, beyond a reasonable doubt, any reasonable inference other than that of his guilt.
State v. Wahlberg , 296 N.W.2d 408, 411 (Minn. 1980) (citation omitted). But the evidence need not exclude the possibility of defendant's innocence; it need only make that theory seem unreasonable. State v. Anderson , 379 N.W.2d 70, 78 (Minn. 1985). Although stricter scrutiny applies to convictions based on circumstantial evidence, it is still recognized that the jury "is in the best position to evaluate the circumstantial evidence surrounding the crime." State v. Race , 383 N.W.2d 656, 662 (Minn. 1986). The jury's verdict will be upheld if, "giving due regard to the presumption of innocence and the state's burden of proof beyond a reasonable doubt, [the jury] could reasonably have found the defendant guilty." State v. Pierson , 530 N.W.2d 784, 787 (Minn. 1995).
In addition to circumstantial evidence, the state introduced direct evidence that Taly committed the robbery. Zebott and Sherman, who both worked with Taly at Burger King, identified Taly as the assailant, testifying that they recognized his voice. Zebott and Sherman not only heard the assailant telling him to turn around, but the assailant also told Sherman to find the manager. The assailant then ordered Zebott to open the manager's office and to get down on the floor with Sherman. In addition, Zebott said he recognized the assailant's eyes as Taly's. Zebott and Sherman's identification was somewhat corroborated by their testimony that the ski mask found in Taly's truck looked like the mask worn by the assailant.
The circumstantial evidence presented by the state supports Taly's conviction. Taly was a former employee of this particular Burger King, worked the night shift, and was familiar with the store's closing procedures. The behavior and actions of the assailants indicated that at least one was familiar with this Burger King. First, shortly before the robbery, Aasen had left the Burger King through the rear security door without shutting it firmly. The robbers gained entrance through the rear security door. The testimony at trial revealed that it was known by Burger King employees that the security door often did not lock properly unless it was shut firmly. Next, the assailants did not search the front cash registers, but instead demanded that the manager's office be unlocked. The fact that the assailants went immediately to the manager's office and did not search the front cash registers indicates that they knew no money was kept in the cash registers. The trial testimony showed that Burger King employees knew that no money was kept in the front registers after the dining room was closed and that the night manager would often tally the day's proceeds in the manager's office. The assailants' actions reasonably suggest that at least one was a present or past employee of the Burger King.
The state introduced evidence that Taly had purchased a pellet gun three days before the robbery occurred. The state demonstrated that Taly had access to his father's Smith Wesson revolver. Both Zebott and Sherman testified that the Smith Wesson revolver looked like the one used by the assailant. In addition, the police found an uneaten Whopper with some french fries in the garbage can near Taly's truck. This is inconsistent with Taly's assertion that he went to Burger King earlier that night because he "was hungry," but consistent with looking the place over prior to returning. Finally, three of Taly's roommates testified that they had never known Taly to spend the night at his parents' house since he moved in with them.
Taly insists that he was at his parents' house sleeping when the robbery was committed; the evidence presented by the state contradicts Taly's version of events. This confrontation of credibility and recollection occurs commonly in criminal trials, and forms the centuries-old underpinning for the support and high degree of deference we give to the jury verdict in a criminal case. Two of the workers claim to have identified the voice and eyes of the assailant as Taly's; the mask found in Taly's truck looked like the one worn by one of the assailants; Taly had worked the night shift at this Burger King and was familiar with the closing procedures, including the location of the daily proceeds in the manager's office; the police placed Taly at the Burger King earlier that night; Taly had access to a revolver and a pellet gun; and Taly's sleeping at his parents' house that night did not correspond with his usual habits. Viewing the evidence in a light favorable to the jury verdict, as we must upon appellate review, the direct and circumstantial evidence presented during this trial would allow a jury, acting with due regard for the presumption of innocence, to reasonably find Taly guilty of first-degree aggravated robbery.