                          This opinion will be unpublished and
                          may not be cited except as provided by
                          Minn. Stat. § 480A.08, subd. 3 (2014).

                               STATE OF MINNESOTA
                               IN COURT OF APPEALS
                                     A14-0256

                                    State of Minnesota,
                                       Respondent,

                                            vs.

                                  David Arthur LaRose,
                                       Appellant.

                                 Filed January 20, 2015
                                        Affirmed
                                    Schellhas, Judge

                                Cass County District Court
                                 File No. 11-CR-13-792

Lori Swanson, Attorney General, James B. Early, Assistant Attorney General, St. Paul,
Minnesota; and

Christopher J. Strandlie, Cass County Attorney, Walker, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Bridget Kearns Sabo, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

         Considered and decided by Schellhas, Presiding Judge; Ross, Judge; and Smith,

Judge.

                         UNPUBLISHED OPINION

SCHELLHAS, Judge

         Appellant argues that the evidence is insufficient to support his convictions of

first-degree burglary, kidnapping, false imprisonment, and third-degree arson and that the
district court abused its discretion by permitting his impeachment with prior felony

convictions. We affirm.

                                     DECISION

       Three men broke a glass door and barged into 87-year-old B.W.’s Federal Dam

home in the early-morning hours of October 28, 2011. The intruders threatened B.W.

with a long gun, moved her around her home, and tied her up. They also stole personal

property and loaded it into a van, which had been stolen from a parking lot in Cass Lake

and contained the owner’s hunting rifle and homemade pipe. After the intruders left,

B.W. discovered that the van was on fire.

       Respondent State of Minnesota charged LaRose with three counts of first-degree

burglary, in violation of Minn. Stat. § 609.582, subd. l(a) (occupied dwelling),

(b) (dangerous weapon), (c) (assault) (2010); kidnapping (felony or flight), in violation of

Minn. Stat. § 609.25, subd. 1(2) (2010); two counts of theft, in violation of Minn. Stat.

§ 609.52, subd. 2(1) (movable property), (17) (motor vehicle) (2010); false imprisonment

(intentional restraint), in violation of Minn. Stat. § 609.255, subd. 2 (2010); and third-

degree arson (less than $1,000), in violation of Minn. Stat. § 609.563, subd. l(a) (2010).

On each count, the state charged LaRose with liability for crimes of another under Minn.

Stat. § 609.05 (2010). The jury found LaRose guilty on all eight counts, and the district

court imposed sentence. This appeal follows.

Sufficiency of the evidence

       Under the traditional standard of review of sufficiency of the evidence, appellate

courts “review the evidence to determine whether, given the facts in the record and the


                                             2
legitimate inferences that can be drawn from those facts, a jury could reasonably

conclude that the defendant was guilty of the offense charged.” State v. Fairbanks, 842

N.W.2d 297, 306–07 (Minn. 2014) (quotation omitted). In conducting this “painstaking

analysis of the record,” appellate courts view the evidence “in the light most favorable to

the conviction” and “assume the jury believed the State’s witnesses and disbelieved any

evidence to the contrary.” State v. Ortega, 813 N.W.2d 86, 100 (Minn. 2012) (quotation

omitted). A jury’s verdict will not be disturbed on appeal “if the jury, acting with due

regard for the presumption of innocence and the requirement of proof beyond a

reasonable doubt, could reasonably conclude that the defendant was guilty of the charged

offense.” Id.

       But “[i]f a conviction, or a single element of a criminal offense, is based solely on

circumstantial evidence,” Fairbanks, 842 N.W.2d at 307, appellate courts

                apply a two-step analysis in determining whether [that]
                circumstantial evidence is sufficient to support a guilty
                verdict.[1] The first step is to identify the circumstances
                proved. The second step is to determine whether the
                circumstances proved are consistent with guilt and
                inconsistent with any rational hypothesis except that of guilt.
                       In identifying the circumstances proved, [appellate
                courts] assume that the jury resolved any factual disputes in a
                manner that is consistent with the jury’s verdict. Put
                differently, [appellate courts] construe conflicting evidence in
                the light most favorable to the verdict and assume that the
                jury believed the State’s witnesses and disbelieved the

1
  Circumstantial evidence consists of “evidence based on inference and not on personal
knowledge or observation and [of] all evidence that is not given by eyewitness
testimony.” Bernhardt v. State, 684 N.W.2d 465, 477 n.11 (Minn. 2004) (quotations
omitted). Direct evidence, on the other hand, is “evidence that is based on personal
knowledge or observation and that, if true, proves a fact without inference or
presumption.” Id. (quotation omitted).

                                               3
              defense witnesses. . . . Under the second step of [the]
              analysis, [appellate courts] examine independently the
              reasonableness of the inferences that might be drawn from the
              circumstances proved.

State v. Moore, 846 N.W.2d 83, 88 (Minn. 2014) (quotations and citations omitted). The

two-step standard of sufficiency review involves “heightened scrutiny” as compared with

the traditional standard of sufficiency review. State v. Pratt, 813 N.W.2d 868, 874 (Minn.

2012). Nevertheless, “[a] jury is in the best position to evaluate circumstantial evidence,

and its verdict is entitled to due deference.” Fairbanks, 842 N.W.2d at 307.

       In a case in which the state offered both direct and circumstantial evidence on a

disputed element of the offense of conviction, appellate courts may apply the traditional

standard to review the sufficiency of the direct evidence, standing alone, to prove the

element; only if the direct evidence is insufficient to prove the disputed element must

appellate courts apply the two-step standard to review the sufficiency of the evidence to

prove the element. See State v. Silvernail, 831 N.W.2d 594, 605 (Minn. 2013) (Stras, J.,

concurring in part) (reasoning that “there is no reason to evaluate the reasonableness of

inferences that the jury is never required to make” and concluding that “the

‘circumstantial evidence standard’ does not apply to our review of an element of a

criminal offense that the State has proven by direct evidence”); State v. Porte, 832

N.W.2d 303, 309 (Minn. App. 2013) (stating that “[w]hether we apply the standard of

review applicable to circumstantial evidence depends on whether the conviction

necessarily depends on circumstantial evidence” and concluding that “[b]ecause the

state’s direct evidence is insufficient by itself to prove [defendant]’s intent . . . , we must



                                              4
consider the state’s circumstantial evidence, which requires that we engage in the type of

heightened scrutiny that is appropriate for circumstantial evidence”).

       In this case, the state presented both direct and circumstantial evidence that

LaRose participated in or intentionally aided the commission of first-degree burglary,

kidnapping, false imprisonment, and third-degree arson (home-invasion offenses).2 K.H.

testified that, during the time in question, R.C. woke K.H. and asked her to pick up

Gordon Dunn, one of the burglary participants. K.H. and R.C. drove to Federal Dam and

found Dunn standing on the side of the road near a green house. At Dunn’s request, K.H.

stopped her car and opened the trunk, and Dunn “threw some stuff” into the trunk but did

not get into the car. Soon K.H. saw LaRose near the house, and LaRose jumped into

K.H.’s car and appeared scared. K.H. looked around, saw a door window broken, figured

out what was going on, and also got scared. She asked LaRose what the guys were doing

and learned that the house was being burglarized.

       G.V. testified that, while he was asleep at Dunn’s home during the time in

question, Dunn called and asked him for a ride. G.V. refused Dunn’s request. G.V.

testified that, “probably months after that,” LaRose told him that he and Dunn robbed a


2
  We group together the home-invasion offenses because “[a] person [who] is criminally
liable for a crime committed by another . . . [by] intentionally aid[ing] . . . the other to
commit the crime . . . is also liable for any other crime committed in pursuance of the
intended crime if reasonably foreseeable by the person as a probable consequence of
committing or attempting to commit the crime intended.” Minn. Stat. § 609.05, subds. 1,
2. LaRose does not challenge the sufficiency of the evidence to prove that first-degree
burglary, kidnapping, false imprisonment, and third-degree arson were reasonably
foreseeable by LaRose as probable consequences of the home invasion; instead, he
challenges the sufficiency of the evidence to prove that he participated in or intentionally
aided the commission of any of the home-invasion offenses (participation/aid element).

                                             5
house. According to LaRose, they “. . . loaded a van up. And it didn’t start or something

and it was out of gas, so they tried to start a fire—or did start a fire.” When LaRose

relayed the events, he acted “[l]ike it wasn’t nothing.” At trial, LaRose testified that he

did not remember what he did or where he spent the night on October 27–28, 2011, that

he had “never hung out with” Dunn or Staples, that he had not seen K.H. “in years,

probably five years or more,” and that he never had conversed with G.V. about the home

invasion.

       Police collected physical evidence, took several witness statements, and found

charred remains of a homemade pipe in the burned van. DNA analysis of blood swabbed

from a dresser in B.W.’s home showed a single-source male DNA profile that matched a

known sample from Dunn, which would not be expected to occur more than once among

unrelated individuals in the general population. DNA analysis of blood swabbed from the

outside handle of a door on B.W.’s home showed a single-source male DNA profile that

matched a known sample from David Staples, another burglary participant, which would

not be expected to occur more than once among unrelated individuals in the general

population. DNA analysis of genetic material swabbed from a vodka bottle found outside

of B.W.’s home showed a mixture of DNA from three or more individuals. While

LaRose, Staples, and Dunn cannot be excluded as contributors to the mixture, 82.7% of

the general population can be excluded as contributors.

       G.V.’s testimony about LaRose’s confession to burglary, theft, and arson is direct

evidence of the participation/aid element, which is thereby subject to the traditional

standard of review. See Silvernail, 831 N.W.2d at 605 & n.2 (Stras, J., concurring in part)


                                            6
(reasoning that “[o]nce the jury accepted [witness]’s testimony [that defendant admitted

to killing victim], the jury did not need to make any factual inferences in order to

conclude that [defendant] caused [victim]’s death” and concluding that “direct evidence

establishes the existence of the disputed element . . . that [defendant] caused [victim]’s

death”). But to constitute sufficient evidence to prove the participation/aid element,

G.V.’s testimony regarding LaRose’s confession must be corroborated. See Minn. Stat.

§ 634.03 (2010) (“A confession of the defendant shall not be sufficient to warrant

conviction without evidence that the offense charged has been committed . . . .”); State v.

Heiges, 806 N.W.2d 1, 11 (Minn. 2011) (concluding that the term “‘confession’ in

section 634.03 is broad enough to cover all acknowledgments of guilt made after a crime

is committed, whether the acknowledgement is made to a friend, acquaintance, or to the

police”).

       Aside from G.V.’s testimony regarding LaRose’s confession, the state presented

only circumstantial evidence of the participation/aid element. Because the direct

evidence, standing alone, is insufficient to prove the participation/aid element, we apply

the two-step standard of review. See Silvernail, 831 N.W.2d at 605 (Stras, J., concurring

in part); Porte, 832 N.W.2d at 309.

       In this case, construing conflicting evidence in the light most favorable to the

convictions, see Moore, 846 N.W.2d at 88, the circumstances proved are:

             (1) Surveillance video depicts three people stealing B.R.’s van from
       a Cass Lake parking lot shortly after midnight on October 28, 2011. The
       van contained a rifle and home-made pipe;




                                            7
        (2) Immediately after the van was stolen, surveillance video depicts
the stolen van stopping briefly behind the nearby home of Y.S.;

     (3) About the time that the stolen van stopped behind Y.S.’s home,
LaRose, Staples, and Dunn made a brief visit to Y.S.’s home;

       (4) In the early-morning hours of October 28, 2011, three people
entered B.W.’s home in Federal Dam without B.W.’s consent;

       (5) During the home invasion, the intruders broke a glass door on
B.W.’s home; threatened B.W. with a long gun, moved B.W. around her
home, tied up B.W., stole B.W.’s personal property and loaded it into the
stolen van, which was parked near B.W.’s home;

      (6) After the home invasion, B.W. discovered that the van was
parked near her home and that its tire was aflame; B.W. believed that the
van had been set on fire and soon it was engulfed in flames;

       (7) Dunn’s blood was found on a dresser in B.W.’s home, and
Staples’s blood was found on the outside handle of a door on B.W.’s home;

       (8) A mixture of DNA was left on a vodka bottle found outside
B.W.’s home; LaRose, Staples, and Dunn cannot be excluded as
contributors to the mixture, but 82.7% of the general population can be
excluded as contributors;

       (9) In the early-morning hours of October 28, 2011, K.H. drove her
car, with R.C. as a passenger, to pick up Dunn and saw Dunn near a house
in Federal Dam;

        (10) K.H. stopped her car near the house, and Dunn “threw some
stuff” into the trunk;

       (11) K.H. saw LaRose near the house, and LaRose jumped into
K.H.’s car and appeared to be scared. K.H. saw a broken door window and
learned that the house was being burglarized;

        (12) K.H. drove her car to Dunn’s home, “brought the keys in,” and
left;

      (13) On October 28, 2011, Dunn, Staples, LaRose, R.C., and G.V.
were at Dunn’s home, although Dunn, Staples, and LaRose had not been at
Dunn’s home on the evening of October 27;


                                     8
             (14) LaRose told G.V. that he and others had burglarized a house,
       loaded up a van, and attempted to burn the van when it did not start.

       The circumstances proved permit a reasonable inference that LaRose participated

in or intentionally aided the commission of the home-invasion offenses, and therefore the

circumstances proved are consistent with LaRose’s guilt. See id. Furthermore, we are

satisfied that the circumstances proved—when considered as a totality that includes

LaRose’s confession to G.V.—are inconsistent with any rational hypothesis except that

of guilt, since the circumstances proved permit no reasonable inference other than

LaRose’s participation in or intentional aid of the commission of the home-invasion

offenses. See id.; cf. State v. Sterling, 834 N.W.2d 162, 175 (Minn. 2013) (stating that

appellate courts “review the circumstantial evidence not as isolated facts, but as a

whole”). The evidence therefore is sufficient to support LaRose’s convictions of first-

degree burglary, kidnapping, false imprisonment, and third-degree arson. LaRose argues

in the alternative that the state failed to adduce sufficient evidence to prove that the fire

was started intentionally. Because the circumstances proved permit a reasonable

inference that one or more of the three people who invaded B.W.’s home started the fire

intentionally and permit no other reasonable inference, LaRose’s alternative argument

fails. See Moore, 846 N.W.2d at 88.

Rule 609 impeachment

       LaRose conceded before the district court, and concedes on appeal, that his prior

misdemeanor conviction of giving a peace officer a false name was admissible for

impeachment purposes. But LaRose argued at trial and argues on appeal that neither his


                                             9
own prior felony convictions nor those of the state’s witnesses were admissible for

impeachment purposes under State v. Jones, 271 N.W.2d 534 (Minn. 1978). The district

court orally ruled on LaRose’s motion as follows:

             The impeachment, it seems to me that we’re all in or nobody
             is in. And based on my reading of the rule in 609 in the
             application of the Jones factors for those crimes for which I
             am aware of at this point, it seems to me that the best way to
             go on there is that everything comes in on both sides of the
             table.

Defense counsel thereafter elicited LaRose’s testimony regarding his 2011 conviction of

fifth-degree possession of a controlled substance, his 2008 conviction of escape from

custody, and his 2007 conviction of third-degree assault. K.H. testified regarding her

2007 conviction “of a controlled substance crime,” and G.V. testified regarding his 1988

conviction of burglary.

       Appellate courts “review a district court’s decision to admit evidence of a

defendant’s prior convictions for an abuse of discretion.” State v. Williams, 771 N.W.2d

514, 518 (Minn. 2009). Any witness—including a defendant who wishes to testify in his

own defense, State v. Zornes, 831 N.W.2d 609, 626–27 (Minn. 2013)—may be

impeached by evidence that he was convicted of a felony if (1) no more than ten years

has elapsed since the date of conviction or since the witness was released from the

confinement imposed for that conviction, and (2) the district court determines that the

probative value of admitting the evidence of conviction outweighs its prejudicial effect.

Minn. R. Evid. 609(a)(1), (b).




                                           10
       “[I]n Jones, [the supreme court] laid out five factors relevant to determining if a

prior conviction is more probative than prejudicial . . . .” Zornes, 831 N.W.2d at 627. “[I]t

is error for a district court to fail to make a record of its consideration of the Jones

factors, though the error is harmless if it is nonetheless clear that it was not an abuse of

discretion to admit evidence of the convictions.” State v. Davis, 735 N.W.2d 674, 680

(Minn. 2007). Even if a district court’s “consideration of the Jones factors” is “obvious,”

the court’s “fail[ure] to make a record of the Jones factor analysis” is error. State v.

Swanson, 707 N.W.2d 645, 655 (Minn. 2006).

       Here, the district court did not make a record of its analysis of the Jones factors.

This was error. See id. We therefore apply the Jones factors to this case to determine

whether the court abused its discretion in ruling that LaRose’s prior felony convictions

were admissible for impeachment purposes. See id.

       The first Jones factor is the impeachment value of the prior crime. Zornes, 831

N.W.2d at 627. “[The supreme court] ha[s] held that ‘any felony conviction is probative

of a witness’s credibility’ because it allows the fact-finder to see the whole person and his

‘general lack of respect for the law.’” Id. (quoting State v. Hill, 801 N.W.2d 646, 651–52

(Minn. 2011)). Because LaRose’s prior convictions are felonies, this factor weighs in

favor of admission. See id.

       The second Jones factor is the date of conviction and the defendant’s subsequent

history. Id. While “[the supreme court] ha[s] recognized that a history of lawfulness since

a conviction can limit a conviction’s probative value,” it has also stated that “if a witness

is convicted again or sent back to prison, then the witness’s history of lawlessness


                                             11
enhances an otherwise stale conviction’s probative value.” Id. (quotations omitted).

Although LaRose’s 2007 conviction of third-degree assault was more than six years old

at the time of trial, the probative value of the 2007 conviction is enhanced by the 2008

escape-from-custody conviction. See id. Similarly, LaRose’s 2011 conviction of fifth-

degree possession of a controlled substance shows continued lawlessness and enhances

the probative value of the 2007 and 2008 convictions. See id. This factor therefore weighs

in favor of admission. See Swanson, 707 N.W.2d at 655.

       The third Jones factor is the similarity of the past crime with the charged crime.

Zornes, 831 N.W.2d at 627. “[The supreme court] ha[s] held that if a prior conviction is

similar to the crime a defendant is charged with, then the prejudicial effect of admitting

the prior conviction increases.” Id. This factor weighs in favor of admission of LaRose’s

prior convictions of controlled-substance and escape crimes because those past crimes are

not similar to any of the charged crimes. See id. at 627–28. Conversely, third-degree

assault bears some similarity to the charged crime of first-degree burglary (assault), since

assault is an element of the charged crime. See Minn. Stat. § 609.582, subd. 1(c). This

factor weighs against admission of LaRose’s prior assault conviction. See Zornes, 831

N.W.2d at 627–28. But we note that “Minnesota courts have been liberal in admitting

prior convictions for impeachment even when the prior crime is the same as the crime

charged.” State v. Stanifer, 382 N.W.2d 213, 218 (Minn. App. 1986) (emphasis added).

       The fourth Jones factor is the importance of the defendant’s testimony, and the

fifth Jones factor is the centrality of the credibility issue. Zornes, 831 N.W.2d at 627. “If

credibility is a central issue in the case, the fourth and fifth Jones factors weigh in favor


                                             12
of admission of the prior convictions.” Swanson, 707 N.W.2d at 655. Here, LaRose

testified that he had not seen K.H. “in years, probably five years or more,” and that he

had never conversed with G.V. about the home invasion. LaRose’s testimony directly

contradicted K.H.’s testimony that she gave him a ride during the early-morning hours of

October 28, 2011, and G.V.’s testimony that he heard LaRose confess to burglary, theft,

and arson. These factors weigh in favor of admission, especially in light of the district

court’s decision to allow the impeachment of K.H. and G.V. by their prior felony

convictions. See id. at 655–56.

          Because only one of the Jones factors weighs against admission of LaRose’s

assault conviction, and none of the Jones factors weighs against admission of his escape

and controlled-substance convictions, the district court did not abuse its discretion in

ruling that LaRose’s prior felony convictions were admissible for impeachment purposes.

See id.

          Affirmed.




                                           13
