Opinion
No. C7-02-1512.
Filed: July 1, 2003.
Appeal from the District Court, Washington County, File No. K102576.
Mike Hatch, Attorney General, and Doug Johnson, Washington County Attorney, Heather D. Pipenhagen, Assistant County Attorney, (for respondent)
John M. Stuart, State Public Defender, Theodora Gaitas, Assistant Public Defender, (for appellant)
Considered and decided by Klaphake, Presiding Judge, Willis, Judge, and Hudson, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2002).
UNPUBLISHED OPINION
Appellant contests his first-degree burglary conviction, arguing that the state failed to prove beyond a reasonable doubt that he committed or intended to commit a crime after he unlawfully entered a building. Because the evidence sufficiently supports a finding that appellant interfered with an emergency call while unlawfully in the building, we affirm.
FACTS
Appellant Sanders Moore Jr. (Moore) and Brienda Sanders (Sanders) first became acquainted when both were in high school. They became friends and dated for a brief period. After high school, Moore and Sanders did not see each other again for a number of years. In the late 1980's or early 1990's, Sanders briefly reconnected with Moore when Sanders visited her cousin who was housed in the same correctional facility as Moore.
On approximately October 18 or 19, 2001, Moore called Sanders from a park in downtown St. Paul. At that time Moore was on supervised release after having served time for a fifth-degree controlled-substance conviction. In that conversation Moore indicated that he wanted to talk to Sanders and that he also wanted to come by and take a shower. Sanders picked Moore up and brought him to her townhouse, where she allowed him to take a shower and to spend the night. On October 24, 2001, Sanders drove Moore to the Hennepin County jail where Moore turned himself in on a warrant for leaving a treatment program without permission, violating a condition of his supervised release.
Moore and Sanders had infrequent contact during his incarceration. Toward the end of his confinement, though, Moore began to call Sanders more frequently. Moore testified that the increased contact was because he was attempting to retrieve his personal property that was stored at Sanders' townhouse. Sanders testified that Moore was "very rude, belligerent, [and] cursing" during these calls, and as a result, Sanders had Moore's calls blocked. Sanders also testified that she stopped opening the many letters that Moore wrote to her and threw them in the trash.
On January 27, 2002, at approximately 9:30 a.m., Moore was released from the correctional facility and soon after placed a call to Sanders. Moore testified that he explained to Sanders that he needed to retrieve his personal property from her townhouse, that he wanted to talk to Sanders about the future of their relationship, and once again wanted to take a shower. Sanders testified that she told Moore she was preparing to attend church and that he would have to call her later. Moore testified that Sanders told him to call her back and meet her at Sanders' townhouse at about 1:00 p.m. or 1:30 p.m. But Sanders testified that she had made earlier plans to go to Mystic Lake Casino with her sister after church and therefore would not have told Moore to meet her at her townhouse at those times.
While at Mystic Lake Casino, Moore called Sanders' cell phone approximately 18 to 20 times, leaving two voice messages. Sanders testified that in the messages Moore was cursing, yelling, and upset because she was not answering her phone. Moore testified that he was anxious to reach Sanders because his work clothes were among the personal property that was in Sanders' townhouse and he needed to retrieve them because he was scheduled to begin work the next day. Moore was unable to contact Sanders on her cell phone and eventually took a cab to her townhouse. Sanders was not at home when he arrived, and Moore attempted a few more times to contact Sanders on her cell phone. When Sanders still did not answer, Moore testified that he decided to break into Sanders' townhouse to get out of the cold weather.
Moore used a rock to break the glass in the front entry door to Sanders' townhouse. Once inside, Moore tried again unsuccessfully to contact Sanders on her cell phone. Moore then wandered through Sanders' townhouse, finding a letter and photographs of Sanders and her children. Moore put these items in his pocket. He then watched a football game and took a nap as he waited for Sanders to return home.
Sanders returned home at approximately 7:00 p.m. After she backed her car into the garage, Sanders testified that Moore snatched her car door open and started yelling at her. Moore testified that Sanders started screaming at him first. Moore testified that he asked Sanders if he could use her cell phone, but when Sanders indicated she was not finished with it, he gave the phone back to her.
Sanders gave a different account. She testified that when Moore started to yell at her, she told him that she was calling 911 and then attempted to make the call when Moore snatched the cell phone out of her hand. Sanders testified that she managed to dial the 9 and the 1 before Moore snatched the phone from her. Moore then started yelling, screaming, and cursing, and warned that "you don't want to see this side of me." Sanders testified that once she got inside her townhouse, she telephoned her sister. Sanders' sister in turn contacted the police.
The police soon arrived at Sanders' townhouse. Upon entering the townhouse, they ordered Moore to the ground. Moore complied with the order. During a search, the police discovered the letter and photographs Moore had placed in his pocket. Moore was arrested and charged with first-degree burglary, interference with an emergency call, and first-degree criminal damage to property. Moore pleaded not guilty to all charges. After a jury trial, Moore was found guilty of all charges. This appeal followed.
DECISION
Moore was convicted of first-degree burglary in violation of Minn. Stat. § 609.582, subd. 1(a) (2000). This statute provides, in relevant part:
Whoever enters a building without consent and with intent to commit a crime, or enters a building without consent and commits a crime while in the building * * * commits burglary in the first degree * * *.
Id., subd. 1 (emphasis added).
The jury also found Moore guilty of violating Minn. Stat. § 609.78, subd. 2 (2000), which states that
[a] person who intentionally interrupts, disrupts, impedes, or interferes with an emergency call or who intentionally prevents or hinders another from placing an emergency call, * * * is guilty of a gross misdemeanor * * *.
A "911 call" is an "emergency call." Minn. Stat. § 609.78, subd. 3(1) (2000).
Moore concedes that he entered Sanders' townhouse without her consent but argues that the state failed to prove beyond a reasonable doubt that he intended to commit a crime or that he actually committed a crime while in Sanders' townhouse. We disagree.
When considering a claim of insufficient evidence, this court's review is "limited to a painstaking analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction," is sufficient to allow the jurors to reach their verdict. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989) (citation omitted). As a reviewing court, we must assume the "jury believed the state's witnesses and disbelieved any evidence to the contrary." State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989) (citation omitted). "We will not disturb the verdict if the jury, acting with due regard for the presumption of innocence" and the requirement of proof beyond a reasonable doubt, could reasonably conclude the defendant was guilty of the charged offense. State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988) (citation omitted).
A review of the record reveals conflicting testimony about what Moore knew at the time he snatched the cell phone away from Sanders. Moore argues that he did not intend to interfere with an emergency call because he did not know that Sanders was attempting to call 911. Moore points to his testimony that he immediately returned the phone to Sanders when Sanders requested it back. Moore argues further that his behavior is inconsistent with a finding that he intended to interfere with Sanders' attempt to call 911 and points to his testimony that when he handed the cell phone back to Sanders, she told him that she was calling her sister to have her sister contact the police. Moore notes that even knowing that the police were probably on their way, he did not attempt to flee and was cooperative when the police arrived.
Sanders, however, testified that when she arrived home and saw Moore in her garage, she told Moore that she was calling 911 and attempted to make the call dialing the 9 and then the 1 before Moore snatched the phone from her hand. Furthermore, Officer Altman, the investigating police officer, testified that Sanders told him that Moore snatched the cell phone from her and told her she did not want to call the police.
The jury believed Sanders' account of the events that transpired in the garage and disbelieved Moore's version of what happened. It is the function of the fact-finder to "choose between conflicting factual accounts and determine the credibility, reliability, and weight given to witnesses' testimony." State v. White, 357 N.W.2d 388, 390 (Minn.App. 1984) (citation omitted). As a reviewing court, we may not retry the facts. State v. Johnson, 568 N.W.2d 426, 435 (Minn. 1997) (stating a reviewing court does not retry the facts). "[R]esolution of conflicting testimony is the exclusive function of the jury." State v. Bliss, 457 N.W.2d 385, 391 (Minn. 1990) (quotation omitted).
Here, the evidence, when viewed in a light most favorable to the conviction, is sufficient to permit the jury to reasonably conclude that Moore knew Sanders was attempting to call 911 when he snatched the cell phone away from her. Accordingly, this evidence supports the jury's finding that Moore intentionally interfered with Sanders' attempt to make an emergency call, in violation of Minn. Stat. § 609.78, subd. 2. Therefore, when Moore entered Sanders' townhouse without her consent, and then committed a crime once inside by interfering with Sanders' attempt to make an emergency call, Moore committed first-degree burglary, in violation of Minn. Stat. § 609.582, subd. 1(a).
Moore also argues that the state failed to prove beyond a reasonable doubt that he committed a theft after he unlawfully entered Sanders' townhouse. At trial, the police testified that when they searched Moore, he had photographs and a letter belonging to Sanders in his pocket. Moore contends that he had the letter because he intended to use the envelope to write down a phone number and that he had the photographs because he thought Sanders intended for him to have them. At the state's request, the trial court submitted a theft instruction to the jury, but there is nothing in the record indicating that Moore was charged with theft or, more importantly, convicted of theft. Therefore we decline to consider this issue.
The record sufficiently supports the jury's finding that Moore intentionally interfered with Sanders' attempt to make an emergency call after he broke into her townhouse. By doing so, Moore not only committed the crime of interference with an emergency phone call, he also committed first-degree burglary.