                          This opinion will be unpublished and
                          may not be cited except as provided by
                          Minn. Stat. § 480A.08, subd. 3 (2012).

                               STATE OF MINNESOTA
                               IN COURT OF APPEALS
                                     A14-0330

                                    State of Minnesota,
                                       Respondent,

                                            vs.

                                     Alfred Smith, Jr.,
                                        Appellant.

                                 Filed January 26, 2015
                                        Affirmed
                                     Chutich, Judge

                              Olmsted County District Court
                                 File No. 55-CR-13-304

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Mark A. Ostrem, Olmsted County Attorney, James P. Spencer, Assistant County
Attorney, Rochester, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Charles F. Clippert, Special
Assistant Public Defender, St. Paul, Minnesota (for appellant)


         Considered and decided by Reilly, Presiding Judge; Stauber, Judge; and Chutich,

Judge.

                         UNPUBLISHED OPINION

CHUTICH, Judge

         The district court convicted appellant Alfred Smith Jr. of two counts of second-

degree burglary, one count of third-degree burglary, and one count of receiving stolen
property after a bench trial. On appeal, Smith challenges the sufficiency of the evidence

to support his three burglary convictions and asserts that his conviction for receiving

stolen property should be reversed because he never waived his right to a jury trial on the

amended charge. Because the circumstantial evidence is sufficient to support Smith’s

burglary convictions and because the district court did not err in convicting Smith of the

included offense of receiving stolen property, we affirm.

                                         FACTS

       Smith’s convictions arise from a car break-in and a later series of burglaries that

occurred over the 2012 Labor Day weekend in Rochester. Sometime during the night of

July 18, 2012, or the early-morning hours of July 19, 2012, a car owned by victim S.M.

was broken into when it was parked outside of a Rochester hotel. S.M. sold jewelry for a

living, and she noticed that a large amount of her jewelry was missing, along with her

purse, $300 in cash, and supplies and tools that she uses to make jewelry. S.M. estimated

that approximately $1,000 worth of personal jewelry and between $10,000 and $11,000

in total inventory were stolen.

       On September 3, 2012, victim D.J. reported that her Rochester home was

burglarized over the Labor Day weekend. D.J. left her home on approximately August

29, to visit her mother in Illinois and, when she returned on September 3, she noticed that

many items were missing from her home. Several pieces of jewelry, a Sentry safe

containing personal documents, gemstones, antique silverware, a digital camera, a Barack

Obama coin, and approximately $50 in cash were missing from D.J.’s home.




                                            2
       On the same day, victim A.M. reported that her Rochester home was burglarized

that afternoon. A.M. shared the home with B.B. and M.N., and they reported that a 55-

inch television, a gaming console, cameras, a tablet, and a laptop computer were missing

from their home.

       The following morning, on September 4, 2012, T.B., the owner of the Rochester

Tennis Center, reported that his business was burglarized during the night. T.B. noticed

that the cash register was tipped over and file cabinets were rifled through. Two cash

bags and some coinage from the register were missing.

       Between August 30 and September 4, 2012, Smith resided at the Bell Tower Inn in

Rochester. The Bell Tower Inn was located between two and five blocks from the three

locations that were burglarized over the Labor Day weekend. On September 4, 2012,

Smith requested that he be moved from one room to another at the hotel. After Smith left

his original room, hotel cleaning personnel found a garbage bag in the room containing

documents that did not belong to Smith.          A passport belonging to D.J., paperwork

belonging to the Rochester Tennis Club, sterling silverware, and numerous other

documents that were not in Smith’s name were found in the garbage bag. After seeing

the bag’s contents, hotel personnel called the police.

       Officer James Kenison inspected the contents of the garbage bag and determined

that the documents and items were stolen. Officer Kenison then encountered Smith in the

hotel and arrested him on an unrelated charge. Upon his arrest, Officer Kenison searched

Smith and examined a large bag that Smith was carrying. An initial inspection revealed

that the bag contained cell phones, cameras, laptops, and power cords. When the bag was


                                             3
later examined more thoroughly by the police, they found a pair of gloves and a

flashlight. The cameras in the bag belonged to the burglarized homeowners D.J. and

B.B.

       Police obtained a search warrant for Smith’s second hotel room. The search

revealed numerous items that had been reported stolen during the home burglaries and

car theft: flash drives and jewelry taken from S.M.’s car; silverware, the Sentry safe, the

Barack Obama coin, and numerous documents taken from D.J.’s home; and a camera,

tablet, laptop, and gaming console taken from B.B., A.M., and M.N.’s home. In addition,

police found documents and checks taken from the Rochester Tennis Club.

       The state charged Smith with two counts of second-degree burglary for the two

burglaries of the homes; one count of third-degree burglary for the burglary of the tennis

center; and one count of felony theft regarding the stolen jewelry from the car. See Minn.

Stat. §§ 609.582, subds. 2(a)(1), 3, and 609.52, subd. 2(1) (2012).

       Smith waived his right to a jury trial, and a four-day court trial was held.

Numerous law enforcement and victim witnesses testified about what was stolen and

what property was recovered in Smith’s possession. Smith waived his right to remain

silent and testified in his own defense. He claimed that the stolen property was in his

hotel room partly because a man named Mali brought it there. He stated that he bought

the laptop, some jewelry, silverware, and a camera from Mali, but was unable to afford

the 55-inch television that Mali wanted to sell him. Smith further testified that he

received the safe from Mali, but the safe contained passports and birth certificates that he

did not want, so he discarded them. Smith further claimed that he found some of the


                                             4
property on Craigslist or at thrift stores and admitted that he knew the items he purchased

were stolen. He stated that he found the papers and blue money bags from the tennis club

in a dumpster behind a Marriot. Smith admitted that he had stolen a bike before the dates

of the burglaries, but he insisted that he did not commit “heavy” crimes, like breaking

into homes or selling narcotics.

       On October 2, 2013, the district court issued its verdict, convicting Smith of the

three burglary counts and an amended count of receiving stolen property, rather than the

initial charge of felony theft. Smith now appeals.

                                     DECISION

                           I.      Sufficiency of the Evidence

       Smith argues that the evidence is insufficient to support the district court’s verdict

for each of the three burglary convictions. We disagree.

       When evaluating the sufficiency of the evidence, “we review the evidence to

determine whether, given the facts in the record and the legitimate inferences that can be

drawn from those facts, a [factfinder] 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). We “view the evidence in the light most favorable to the

verdict and assume that the factfinder disbelieved any testimony conflicting with that

verdict.”   State v. Chavarria-Cruz, 839 N.W.2d 515, 519 (Minn. 2013) (quotation

omitted). If the factfinder, “acting with due regard for the presumption of innocence and

for the necessity of overcoming it by proof beyond a reasonable doubt, could reasonably

conclude that [a] defendant was proven guilty of the offense charged,” we will not disturb


                                             5
the verdict. Bernhardt v. State, 684 N.W.2d 465, 476–77 (Minn. 2004) (alteration in

original) (quotation omitted). This standard applies to court trials as well as jury trials.

State v. Palmer, 803 N.W.2d 727, 733 (Minn. 2011).

       Because Smith’s burglary convictions were based solely on circumstantial

evidence, we apply a heightened standard of review. State v. Al-Naseer, 788 N.W.2d

469, 473 (Minn. 2010). A two-step analysis is applied under the circumstantial-evidence

standard. State v. Silvernail, 831 N.W.2d 594, 598 (Minn. 2013). First, we identify the

circumstances proved. Id. “In identifying the circumstances proved, we defer to the

[factfinder’s] acceptance of the proof of these circumstances and rejection of evidence in

the record that conflicted with the circumstances proved by the [s]tate.” Id. at 598–99

(quotation omitted).    Second, we “determine whether the circumstances proved are

consistent with guilt and inconsistent with any rational hypothesis except that of guilt, not

simply whether the inferences that point to guilt are reasonable.” Id. at 599 (quotation

omitted). The circumstantial evidence is viewed as a whole, not as isolated facts. Id.

       Under the first step of the circumstantial-evidence test, the state proved the

following circumstances. Both burglarized homes and the burglarized business were

within a few blocks of the hotel where Smith stayed over the Labor Day weekend, and

each burglary occurred during the holiday weekend.          In fact, two of the burglaries

occurred in the morning and early evening of September 3.              On the morning of

September 4, 2012, only hours after two of the burglaries occurred, Smith possessed

property stolen in each of the three burglaries. Some of the items found in Smith’s

possession were worthless to anyone but their owners, including a passport, a birth


                                             6
certificate, and property documents. In addition, the hotel manager saw Smith carrying

the stolen Sentry safe into the hotel during the relevant time frame and identified the safe

found in Smith’s room as the Sentry safe. When the police confronted Smith in the hotel,

he was carrying a bag that contained numerous stolen electronics and burglary tools,

including a flashlight and gloves.

       The above proven circumstances are “consistent with guilt and inconsistent with

any rational hypothesis except that of guilt.” Id. (quotation omitted). Smith possessed

property reported as stolen from both homes and the business, and the nature of several of

the items he possessed suggested that they came directly from the burglaries, including

passports and birth certificates. The assortment of items found in Smith’s possession,

from the electronics to the financially worthless documents, as well as gloves and a

flashlight, illustrate Smith’s guilt of each of the burglaries. As the district court aptly

stated, “[t]he mishmash of items found in defendant’s possession looks like the raw loot

that a thief quickly grabbed and made off with.” Moreover, the brief time that passed

between the burglaries and the discovery of the stolen items in Smith’s possession, along

with the close proximity of the hotel to the burglarized homes and tennis center, are

consistent with the findings that Smith was the thief.

       Smith contends that a reasonable inference can be drawn from his alternate

explanation of the events that is inconsistent with finding him guilty of the burglaries,

namely that he obtained the valuable stolen items from Mali or from Craigslist, while he

found the tennis club’s records in a dumpster. The district court, however, did not find

Smith’s testimony credible, determining that Smith “demonstrated a flexible approach to


                                             7
the truth -- a looseness with the facts, in which the incriminatory truth is conceded only

when and to the extent it is inescapable.” See id. (providing that the factfinder is in the

best position to evaluate the credibility of the evidence and of witnesses even in cases

based on circumstantial evidence). Further, we consider it improbable, considering the

timing and locations of the break-ins, that Smith came into possession of stolen items

from a September 3 burglary by way of Mali, while finding additional stolen items from

another September 3 burglary that same evening by fortuitously finding them in a

dumpster.

       The inferences that Smith requests that we draw from the circumstances proved by

the state are not reasonable. The only rational hypothesis that can be drawn from the

proved circumstances is that Smith committed the burglaries. The evidence is sufficient

to support Smith’s convictions for second- and third-degree burglary.

                II.    Included Offense of Receiving Stolen Property

       Smith argues that the district court improperly amended the initial theft charge,

which arose from the July car break-in and theft of S.M.’s jewelry, to a charge of

receiving stolen property because Smith did not waive his right to a jury trial on the

amended charge. Under the United States and Minnesota Constitutions, a defendant is

entitled to a trial by jury. U.S. Const. art. III, § 2, cl. 3; U.S. Const. amend. VI; Minn.

Const. art. 1, §§ 4, 6. Under Minnesota law, the right to a jury trial attaches when a

defendant is charged with an offense that is punishable by incarceration. Minn. R. Crim.

P. 26.01, subd. 1(1)(a); State v. Kuhlmann, 806 N.W.2d 844, 848 (Minn. 2011). A

defendant may waive his right to a jury trial, but the jury-trial waiver must be “knowing,


                                            8
intelligent, and voluntary.”     Kuhlmann, 806 N.W.2d at 848.         Whether a criminal

defendant has been denied the right to a jury trial is a constitutional question, which we

review de novo. Id. at 848-49.

       Before trial begins, the district court is “relatively free” to allow amendments to

the complaint that charges additional offenses. State v. Caswell, 551 N.W.2d 252, 254

(Minn. App. 1996) (quotation omitted). “After trial has commenced and jeopardy has

attached, however, a [district] court may allow the amendment of a complaint only if no

additional or different offense is charged and if the amendment does not prejudice

substantial rights of the defendant.” Id.; see also Minn. R. Crim. P. 17.05.

       Before trial began, Smith waived his right to a jury trial on the theft charge. Smith

argues, however, that this waiver does not extend to the amended receiving-stolen-

property charge because the charge was added after jeopardy attached. Our review of the

record shows that, from the outset of trial, Smith was willing to admit to receiving stolen

property, despite several warnings from the district court of the consequences of doing

so.

       During opening statements, before direct examination of Smith, and during closing

arguments, the offense of receiving stolen property was addressed by the district court

and the state. The prosecutor, during closing arguments, stated that he did not believe an

amendment to the complaint was necessary because receiving stolen property is an

included offense of theft. He nevertheless stated that he would move to add the charge to

the complaint if the district court preferred; the district court accepted the amendment.

Smith’s counsel never raised an objection to a possible amendment of the complaint or to


                                             9
the district court considering receiving stolen property as an included offense, despite

having several opportunities to do so.

       When a defendant fails to object to an alleged error at trial, including to

constitutional challenges, we apply plain-error review. State v. Tscheu, 758 N.W.2d 849,

863 (Minn. 2008). “In applying plain-error review, we will reverse only if (1) there is

error, (2) the error is plain, and (3) the error affected the defendant’s substantial rights.”

State v. Hayes, 826 N.W.2d 799, 807 (Minn. 2013). Plain error exists if the error

“contravenes case law, a rule, or a standard of conduct.” State v. Reed, 737 N.W.2d 572,

583 (Minn. 2007) (quotation omitted).         An error affects substantial rights if it is

“prejudicial and affect[s] the outcome of the case.” State v. Griller, 583 N.W.2d 736,

741 (Minn. 1998).

       In the present case, we conclude that the district court did not commit error in

allowing the amended charge and convicting Smith of the receiving-stolen-property

offense.   Minnesota Rule of Criminal Procedure 17.05 allows a court to permit an

amendment “at any time before verdict or finding if no additional or different offense is

charged and if the defendant’s substantial rights are not prejudiced.” Further, under

Minnesota law, a criminal defendant “may be convicted of either the crime charged or an

included offense.” Minn. Stat. § 609.04, subd. 1 (2012). An included offense is defined,

in part, as “[a] crime necessarily proved if the crime charged were proved.” Id., subd.

1(4). “In determining whether an offense is a necessarily included offense, we must look

at the elements of the offense rather than the facts of the particular case.” State v. Roden,

384 N.W.2d 456, 457 (Minn. 1986).


                                             10
       Applying these principles here, we conclude that Smith was not found guilty of an

“additional” or “different” offense. Rather, he was convicted of an “included” offense.

Under section 609.52, a person is guilty of felony theft if he or she “intentionally and

without claim of right . . . retains possession of movable property of another without the

other’s consent and with intent to deprive the owner permanently of possession of the

property.” Minn. Stat. § 609.52, subd. 2(1) (emphasis added). Similarly, a person is

guilty of receiving stolen property if he or she “receives, possesses, transfers, buys or

conceals any stolen property . . . knowing or having reason to know the property was

stolen.” Minn. Stat. § 609.53, subd. 1 (2012).

       Considering the elements, receiving stolen property is “[a] crime necessarily

proved if [theft] were proved.” Minn. Stat. § 609.04, subd. 1(4); see also State v. Lee,

683 N.W.2d 309, 315 (Minn. 2004) (“Over the years, the words used by the Minnesota

legislature to describe the conduct proscribed in the theft and receiving stolen property

statutes evolved, overlapping sufficiently so that in a prosecution for receiving stolen

property, it is no defense that the defendant was the thief.”). As the district court found, a

felony theft offense includes retaining possession of moveable property without the

permission of the owner. Similarly, receiving stolen property requires possession of

stolen property. See State v. Banks, 358 N.W.2d 133, 136 (Minn. App. 1984) (vacating

receiving-stolen-property conviction based on possession because it involved the same

act as the theft conviction based on retaining property), review denied (Minn. Feb. 27,

1985). Based on the similarity of the elements, receiving stolen property is an included

offense of theft.


                                             11
       Smith relies on the recent Minnesota Supreme Court case of State v. Little, 851

N.W.2d 878 (Minn. 2014), in support of vacating his conviction for receiving stolen

property because he did not waive his right to a jury trial on that charge. In Little, the

defendant was originally charged with third- and fourth-degree criminal sexual conduct.

Id. at 880. After the defendant waived his right to a jury trial on the charges, the state

filed an amended complaint adding a charge of first-degree criminal sexual conduct. Id.

at 881. The defendant never waived his right to a jury trial on the amended charge of

first-degree criminal sexual conduct, and the district court found him guilty of all three

counts. Id. Our supreme court concluded that when a defendant is charged “with an

additional offense after the defendant has waived his or her right to jury trial, the court

must obtain a new waiver before dispensing with a jury.” Id. at 886–87. Specifically, the

court determined that it was plain error that affected the defendant’s substantial rights

when the district court failed to obtain a personal waiver of the defendant’s right to a jury

trial on the first-degree criminal sexual conduct charge. Id. at 887.

       The present case, however, is easily distinguished from the scenario presented in

Little because receiving stolen property is an included offense of theft, not a new and

separate charge.    In Little, the first-degree criminal sexual conduct charge was an

additional offense added to the complaint that dramatically increased the penalties that

the defendant faced. See id. at 886 n.4; see also Minn. Sent. Guidelines 4.B (2012). The

defendant in Little was also convicted of all three charged offenses. Little, 851 N.W.2d at

881.




                                             12
       Conversely, the district court here did not consider the receiving-stolen-property

charge as an additional offense, but rather as an included offense. Smith was found

guilty of one of the offenses, not both. Further, felony theft and receiving stolen property

are, as the district court determined, “equivalent level felonies,” with similar severity

levels and penalties, namely presumptive stayed sentences if a person’s criminal history

score is low. See Minn. Sent. Guidelines 4.B. The dramatically increased penalties

resulting from the first-degree criminal sexual conduct amendment in Little are not a

possibility here. Accordingly, Smith’s substantial rights were not prejudiced by the

amended receiving-stolen-property charge. See Minn. R. Crim. P. 17.05.

       In addition, the record does not support Smith’s argument that the receiving-

stolen-property amendment had any effect on his trial tactics. The record shows that

Smith was warned at least twice before he chose to testify about the consequences of

admitting that he possessed property that he knew was stolen, and that Smith was well

aware that the district court was considering an amendment concerning receiving stolen

property. Despite these explicit warnings, Smith proceeded to testify and his counsel

failed to raise an objection to consideration of the amended charge as a possible

amendment or as an included offense.

       In sum, because the receiving-stolen-property amendment did not charge Smith

with a new or different offense and he did not suffer unfair prejudice as a result, the

district court properly convicted Smith of the amended charge.

      Affirmed.




                                            13
