                          This opinion will be unpublished and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
                                     A13-1500

                                   State of Minnesota,
                                      Respondent,

                                           vs.

                               Anthony Thomas Leonsaco,
                                      Appellant.

                                Filed December 1, 2014
                                       Affirmed
                                    Johnson, Judge

                             Kanabec County District Court
                                File No. 33-CR-12-361

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

Barbara McFadden, Kanabec County Attorney, Reese Frederickson, Assistant County
Attorney, Mora, Minnesota 55051 (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Anders J. Erickson, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

         Considered and decided by Worke, Presiding Judge; Johnson, Judge; and Reyes,

Judge.
                        UNPUBLISHED OPINION

JOHNSON, Judge

       A Kanabec County jury found Anthony Thomas Leonsaco guilty of burglary,

aiding and abetting theft, and aiding and abetting criminal damage to property. Leonsaco

challenges the sufficiency of the evidence supporting the convictions. We affirm.

                                         FACTS

       Leonsaco’s convictions arise from a series of burglaries of cabins on Quamba

Lake in Kanabec County over the Memorial Day weekend in 2012. Leonsaco’s then-

fiancée, M.T., invited Leonsaco to stay with her family at her stepfather’s cabin. On

Friday night, M.T. stayed up with Leonsaco until 2:30 a.m. When she went to bed,

Leonsaco was drinking alone on the porch. Just before dawn Saturday morning, M.T.

awoke and found that Leonsaco still was awake and was talking with a man and two

women. She quarreled with one of the women until the guests left on foot. M.T. saw that

Leonsaco was drinking from an unusual bottle with a long, wide neck and that Bud Light

beer cans were strewn across the lawn.

       At approximately 7:00 a.m. Saturday morning, M.T.’s stepfather, D.K., awoke and

discovered that his van was parked in a different place from where he had left it the

previous evening. He also noticed that the seat had been adjusted and that the odometer

had gained 40 to 50 additional miles. D.K. found the keys to the van inside his cabin in

the usual place.

       D.K. then noticed that a next-door neighbor’s cabin appeared to have been

burglarized. He contacted law enforcement. Deputy Sheriff Cole Bangerter responded.


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Deputy Bangerter found that the unoccupied cabin, which belonged to N.E., was missing

several window screens. Deputy Bangerter determined that someone had entered the

cabin through a window where cinder blocks had been stacked on the ground below.

Inside the cabin, Deputy Bangerter saw that everything looked “out of place for a normal

cabin,” with papers scattered and cabinet doors left open.         Deputy Bangerter soon

discovered that two other nearby cabins, one belonging to W.C. and one belonging to

C.D., also had been burglarized. Deputy Bangerter observed that the three burglarized

cabins had been entered in similar ways and left in similar states of disarray.

       Deputy Bangerter’s investigation indicated that items were missing from each of

the three burglarized cabins. In W.C.’s cabin, the missing items included consumer

electronics, DVDs, and a bottle of Hungarian Tokaji wine, which has a distinctive long,

wide neck. W.C. testified at trial that he had purchased the bottle in Hungary. Deputy

Bangerter found an empty Tokaji bottle on the ground near the N.E. cabin. In W.C.’s

cabin, Deputy Bangerter also found an empty Bud Light can in the kitchen sink. W.C.

told the deputy that he does not drink Bud Light and that he did not have any Bud Light

in the cabin before the burglary. Subsequent testing determined that DNA found on the

beer can and on the Tokaji bottle matches Leonsaco’s DNA.              Each cabin’s owner

reported that consumer electronics and DVDs were missing. Another neighbor, C.M.,

reported that the tires on his vehicle had been slashed during the night while the vehicle

was parked in his driveway.

       In November 2012, the state charged Leonsaco with ten counts: (1) three counts of

second-degree burglary (one for each cabin), in violation of Minn. Stat. § 609.582,


                                             3
subds. 2(a)(1) and 2(a) (2010); (2) three counts of third-degree burglary (one for each

cabin), in violation of Minn. Stat. § 609.582, subd. 3; (3) one count of theft, in violation

of Minn. Stat. § 609.52, subds. 2(a)(1) and 3(3)(a) (2010); (4) one count of aiding and

abetting theft, in violation of Minn. Stat. § 609.52, subds. 2(a)(1) and 3(3)(a); (5) one

count of fourth-degree criminal damage to property, in violation of Minn. Stat. § 609.595,

subd. 3 (2010); and (6) one count of aiding and abetting fourth-degree criminal damage

to property, in violation of Minn. Stat. § 609.595, subd. 3.

       The case was tried to a jury in March 2013. The state called nine witnesses in its

case-in-chief: M.T., D.K., two cabin owners, a caretaker of one cabin, two deputy

sheriffs, and two forensic scientists. Leonsaco did not testify but called one witness,

M.T.’s mother, J.K.

       The jury found Leonsaco guilty of three counts of second-degree burglary, three

counts of third-degree burglary, aiding and abetting theft, and aiding and abetting

criminal damage to property. The jury found Leonsaco not guilty of theft and criminal

damage to property.      The district court entered judgment and imposed concurrent

sentences on three counts of second-degree burglary, one count of aiding and abetting

theft, and one count of aiding and abetting criminal damage to property, the longest being

26 months of imprisonment.        The district court did not adjudicate the third-degree

burglary offenses because they are lesser-included offenses. Leonsaco appeals.

                                     DECISION

       Leonsaco argues that the evidence is insufficient to support the jury’s verdicts with

respect to each conviction for which he was convicted and sentenced.


                                             4
      When considering a claim of insufficient evidence, this court conducts “a

painstaking analysis of the record to determine whether the evidence, when viewed in a

light most favorable to the conviction, was sufficient to permit the jurors to reach the

verdict which they did.” State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). We must

assume that “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). “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 crime charged. Bernhardt v. State, 684 N.W.2d 465, 476-77

(Minn. 2004) (quotation omitted).

      In reviewing the sufficiency of the evidence, we apply a heightened standard of

review if the state’s evidence on one or more elements of an offense consists solely of

circumstantial evidence. State v. Porte, 832 N.W.2d 303, 309 (Minn. App. 2013) (citing

State v. Al-Naseer, 788 N.W.2d 469, 473-75 (Minn. 2010); State v. Leake, 699 N.W.2d

312, 319-20 (Minn. 2005); State v. Rhodes, 657 N.W.2d 823, 840 (Minn. 2003)). In this

case, it is undisputed that the state did not introduce any direct evidence that Leonsaco

committed burglary, theft, or criminal damage to property; no witness testified that he or

she actually saw Leonsaco commit any of the offenses. But the state introduced a

voluminous amount of circumstantial evidence linking Leonsaco to the charged offenses.

In closing argument, the prosecutor asked the jury to rely on that circumstantial evidence

to infer that Leonsaco committed the alleged offenses, either by himself or with others.




                                            5
Thus, it is appropriate for this court to apply the heightened standard of review applicable

to circumstantial evidence.

       When reviewing a conviction based on circumstantial evidence, we apply a two-

step test to determine the sufficiency of the evidence. State v. Moore, 846 N.W.2d 83, 88

(Minn. 2014).    First, we “identify the circumstances proved.”        Id. (citing State v.

Andersen, 784 N.W.2d 320, 329-30 (Minn. 2010)). “In identifying the circumstances

proved, we assume that the jury resolved any factual disputes in a manner that is

consistent with the jury’s verdict.” Id. (citing Andersen, 784 N.W.2d at 329). At the

second step of the circumstantial-evidence test, we “examine independently the

reasonableness of the inferences that might be drawn from the circumstances proved,”

and then “determine whether the circumstances proved are consistent with guilt and

inconsistent with any rational hypothesis except that of guilt.” Id. at 88 (quotations

omitted). We must consider the evidence as a whole and not examine each piece in

isolation. Andersen, 784 N.W.2d at 332.

       In this case, we note at the first step of the circumstantial-evidence test that the

state proved the following circumstances. The three burglarized cabins were in the same

vicinity and were unoccupied during the Memorial Day weekend. A similar method of

entry was used at each cabin. The interior of each cabin was left in similar states of

disarray, with similar items missing. At 10:30 p.m. on Friday night, the exterior of the

N.E. cabin had not been disturbed, but it had been disturbed when D.K. awoke Saturday

morning. When M.T. went to bed, Leonsaco stayed up. When she awoke a few hours

later, around dawn, a man and two women were outside with Leonsaco. Leonsaco was


                                             6
intoxicated and was drinking out of a bottle with a long, wide neck, and Bud Light beer

cans were strewn around the yard. In the W.C. cabin, an empty Bud Light beer can was

found in the sink, which contained the DNA of only one person, Leonsaco. Leonsaco’s

DNA was found on W.C.’s Tokaji bottle, which was found in the yard of the N.E. cabin.

The keys to D.K.’s van were inside his cabin in their usual place, but his van was parked

in a different place in the morning with 40 to 50 additional miles on the odometer. W.C.

reported that kitchen knives were stolen from his cabin. The tires on C.M.’s vehicle,

which was parked next to his own cabin, were punctured, apparently with a sharp knife.

M.T.’s mother, J.K., previously was engaged to C.M.

       Because Leonsaco was convicted of three different offenses, we apply the second

step of the circumstantial-evidence test separately to each offense.

A.     Burglary

       The jury found Leonsaco guilty of three counts of second-degree burglary and

three counts of third-degree burglary, but the district court adjudicated and imposed

sentences only on the three counts of second-degree burglary. See Minn. Stat. § 609.04

(2010); State v. Pflepsen, 590 N.W.2d 759, 765-66 (Minn. 1999); State v. LaTourelle,

343 N.W.2d 277, 284 (Minn. 1984). A person is guilty of second-degree burglary if he

enters a dwelling “without consent and with intent to commit a crime” or enters a

dwelling “without consent and commits a crime while in the building, either directly or as

an accomplice.” Minn. Stat. § 609.582, subd. 2(a)(1).

       During closing arguments, the prosecutor asked the jury to infer that Leonsaco

burglarized W.C.’s cabin, either alone or with a group, based on circumstantial evidence


                                             7
that his DNA was discovered on an empty beer can found in the kitchen sink and on

W.C.’s Tokaji bottle. The prosecutor asked the jury to infer that Leonsaco burglarized all

three cabins because the timing and manner of each burglary was so similar. The

prosecutor also asked the jury to infer that Leonsaco, as opposed to another person,

committed the burglaries because he was in a position to observe that the cabins were

empty over the Memorial Day weekend, which typically would be a busy time at the

lake, and because he was outside drinking all night and likely would have observed

another person commit the burglaries. These inferences are reasonable in light of the

circumstances proved, and the inferences are consistent with Leonsaco’s guilt.          See

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

       At the second step of the circumstantial-evidence test, we also must determine

whether there are reasonable inferences that are inconsistent with guilt. See id. Leonsaco

contends that the circumstances proved are inconsistent with his guilt based on two

alternative theories. First, he contends that the circumstantial evidence is consistent with

the inference that his early-morning guests burglarized the cabins without his assistance.

Specifically, he contends that his guests may have placed Leonsaco’s beer can in W.C.’s

cabin and taken W.C.’s Tokaji wine bottle from the cabin and given it to Leonsaco.

Second, Leonsaco contends that the evidence is consistent with the inference that he

participated in the burglary of only W.C.’s cabin but not the other two cabins. The

inferences Leonsaco wishes to draw from the circumstances proved by the state are not

reasonable inferences.     “The only rational hypothesis to be drawn” from the

circumstances proved is that Leonsaco, either by himself or with others, broke into the


                                             8
neighboring cabins and committed theft while inside each cabin. See Andersen, 784

N.W.2d at 332. We conclude that the circumstances proved are “consistent with guilt

and inconsistent with any rational hypothesis except that of guilt.” Id. at 330.

       Thus, the evidence is sufficient to support the three convictions of second-degree

burglary.

B.     Aiding and Abetting Theft

       The jury found Leonsaco guilty of one count of aiding and abetting theft.

Leonsaco argues that the evidence is insufficient to prove that he engaged in the

prohibited conduct and insufficient to prove that the value of stolen property exceeded

the statutory threshold of $1,000.

       1.     Evidence of Theft

       A person is guilty of theft if he “intentionally and without claim of right takes,

uses, transfers, conceals or 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(a)(1). “A person is criminally liable for a crime

committed by another if the person intentionally aids, advises, hires, counsels, or

conspires with or otherwise procures the other to commit the crime.”               Minn. Stat.

§ 609.05, subd. 1 (2010).

       During closing arguments, the prosecutor asked the jury to draw the inferences

described above in part A and, in addition, to infer that Leonsaco used D.K.’s van to pick

up his three guests and transport stolen property. The prosecutor noted that Leonsaco

was the tallest occupant of D.K.’s cabin and that the driver’s seat of the van was pushed


                                             9
back, the keys were located in the cabin, and the van had been driven 40 or 50 additional

miles. These inferences are reasonable in light of the circumstances proved, and the

inferences are consistent with Leonsaco’s guilt. See Moore, 846 N.W.2d at 88.

       Leonsaco contends that the evidence is consistent with the inference that he drove

D.K.’s van for a purpose other than to transport stolen property. We believe that the

inference Leonsaco wishes to draw from the circumstances proved by the state is not a

reasonable inference because no other circumstances support that conclusion. Again,

“the only rational hypothesis to be drawn” from the circumstances proved is that

Leonsaco, either by himself or with others, broke into the neighboring cabins and

committed theft while inside each cabin.          See Andersen, 784 N.W.2d at 332.    We

conclude that the circumstances proved are “consistent with guilt and inconsistent with

any rational hypothesis except that of guilt.” Id. at 330.

       2.     Evidence of Value of Property

       The statute under which Leonsaco was convicted requires the state to prove that

“the value of the property or services stolen is more than $1,000 but not more than

$5,000.”    Minn. Stat. § 609.52, subds. 2(a)(1) and 3(3)(a).      Theft crimes may be

consolidated, in which event the threshold value is determined on an aggregate basis.

Minn. Stat. § 609.52, subd. 3(5) (2010). The word “value,” as used in this statute, means

“the retail market value at the time of the theft, or if the retail market value cannot be

ascertained, the cost of replacement of the property within a reasonable time after the

theft.” Minn. Stat. § 609.52, subd. 1(3). The value of stolen goods may be determined

by “direct and circumstantial evidence bearing on the value of the item in the retail


                                             10
market.” State v. Stout, 273 N.W.2d 621, 623 (Minn. 1978) (quotation omitted). A jury

may rely on the testimony of the owner of the property concerning the approximate value

of the property. State v. Clipper, 429 N.W.2d 698, 700 (Minn. App. 1988). “[A]s long as

the evidence is adequate to show the fair market value of the property taken as being over

[the statutory threshold], the value element of the crime of theft is established.” State v.

Mastousek, 287 Minn. 344, 352, 178 N.W.2d 604, 609 (1970).

       In this case, N.E. and W.C. testified about the value of the property stolen from

their respective cabins in terms of dollar amounts. N.E. testified with specificity that the

total value of the items that were stolen from her cabin was $192.62. W.C. testified more

generally that “we kind of priced it out for the attorney’s office and it looked like it was

somewhere in the area of just about $1,000.” The caretaker of the third cabin, which

belongs to C.D., did not testify in terms of dollar amounts but did describe in detail the

property that was stolen; he testified that a DVD player and box of approximately 30 to

45 DVDs were missing.

       Leonsaco contends that W.C.’s testimony shows that the total value of the

property stolen from that cabin is no more than $620 and that the total loss is merely

$812.62, which is the sum of the amount of N.E.’s loss and the amount of W.C.’s loss, as

restated by Leonsaco. But Leonsaco’s contention disregards W.C.’s testimony that the

value of the property stolen from his cabin was “about $1,000.” The jury is permitted to

rely on that testimony. See Clipper, 729 N.W.2d at 700. We conclude that the evidence

is sufficient to prove that the total value of stolen property was more than $1,000. Thus,




                                            11
the evidence is sufficient to support the conviction of one count of aiding and abetting

theft.

C.       Aiding and Abetting Damage to Property

         The jury found Leonsaco guilty of one count of aiding and abetting fourth-degree

criminal damage to property. A person is guilty of fourth-degree criminal damage to

property if he “intentionally causes damage” to “another person’s physical property

without the other person’s consent.” Minn. Stat. § 609.595, subds. 1, 3. As stated above,

“A person is criminally liable for a crime committed by another if the person

intentionally aids, advises, hires, counsels, or conspires with or otherwise procures the

other to commit the crime.” Minn. Stat. § 609.05, subd. 1.

         During closing arguments, the prosecutor asked the jury to draw the inferences

described above in parts A and B and, in addition, to infer that Leonsaco aided and

abetted criminal damage to property because the window screens of each burglarized

cabin were slashed or crushed.        This is a reasonable inference in light of the

circumstances proved, and the inference is consistent with Leonsaco’s guilt. See Moore,

846 N.W.2d at 88. Leonsaco does not offer any alternative inferences concerning the

window screens that are inconsistent with guilt.

         Leonsaco contends that the evidence is insufficient to prove that he aided and

abetted criminal damage to property because the state did not prove that he punctured

C.M.’s tires. Leonsaco is incorrect in asserting that his conviction of aiding and abetting

fourth-degree criminal damage to property is based solely on damage to C.M.’s tires, not

damage to the window screens of the cabins. The state amended the complaint at trial to


                                            12
allege damage to the cabins. See Minn. R. Crim. P. 17.05 (permitting amendment of

complaint “at any time before verdict . . . if no additional or different offense is charged

and if the defendant’s substantial rights are not prejudiced”); State v. Stephani, 369

N.W.2d 540, 549 (Minn. App. 1985) (approving of amendment to complaint during trial

to conform to evidence), review denied (Minn. Aug. 20, 1985). In closing argument, the

prosecutor asked the jury to find Leonsaco guilty based on both the damage to the cabins

and the damage to the tires.     We need not analyze whether the state’s evidence is

sufficient to prove that Leonsaco aided and abetted the damage to C.M.’s tires because

the evidence of damage to the cabins is sufficient to support the conviction of one count

of aiding and abetting fourth-degree criminal damage to property.

       Affirmed.




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