A man has had his felony burglary conviction in Anoka County District Court for an incident in Coon Rapids reversed by the Minnesota Court of Appeals and remanded for a new trial.
The appeals court decision Aug. 4 in the case of Charles Edward Love, 46, ruled that the district court committed reversible error by improperly instructing the jury about the elements of burglary and as a result there may be insufficient evidence to support the burglary conviction.
Love had been found guilty by a jury April 11, 2013 of felony third-degree burglary and misdemeanor theft in connection with a Dec. 30, 2012 incident at Fu Yuan, a restaurant at Round Lake Boulevard and 119th Avenue, in which cash and a laptop computer were taken.
Love was sentenced to 39 months in prison with credit for 105 days served. Court records show that Love was sent to prison for 69 months in 1993 in Ramsey County on simple robbery and third-degree burglary convictions and for eight years and eight months in 1997 on a first-degree aggravated robbery conviction in Dakota County.
The morning of Sunday, Dec. 30, 2012 a Fu Yuan employee found that cash and a laptop computer had been taken from the restaurant before it officially opened for business that day and when he checked surveillance footage from a neighboring gas station’s exterior camera with the gas station manager, it showed a man enter the restaurant and leave several minutes later.
Reviewing surveillance video from inside the restaurant, the employee saw the same man enter, walk to the cash register counter, open the drawer, search the pockets of jackets hanging in the restaurant and walk to a table where the laptop was sitting.
Eighty dollars in $1 bills was missing from the cash register and a Toshiba laptop computer was gone from the table, the employee stated.
The man was wearing a hat, a jacket with a fur-lined hood, a striped shirt, black pants and a tiny earring.
Later the same day, a man driving a green Chevrolet Tahoe purchased gas from the neighboring gas station using 26 $1 bills and the gas station manager recognized him as the same man he had seen on the surveillance video.
He provided the vehicle’s description and license plate number to Coon Rapids Police, who identified the vehicle’s owner as Love, a photo of whom matched the man seen on the surveillance video.
Obtaining a search warrant for the green Tahoe and an apartment in a building rented to a person named Charles Love next to the strip mall where the restaurant was located, police found Love in a vehicle in the parking lot and he was wearing a jacket similar to the one seen in the surveillance video, but without the hood.
In the apartment, which was rented to Love’s son, police found clothing and tennis shoes that matched those worn by the suspect on the surveillance video.
Love was charged with felony third-degree burglary, felony theft and misdemeanor theft; the felony theft charge was dropped before trial.
Defense counsel moved to dismiss the remaining charges or suppress testimony regarding the internal video from the restaurant because of the state’s failure to preserve the surveillance footage, but the state argued that the video was not preserved because of a recording system malfunction and there was no exculpatory evidence in the video.
The court denied the motion and at the trial, the Fu Yuan employee testified about the contents of the internal surveillance video and about the restaurant’s hours of operation, in which it opened at 11:30 a.m. on Sunday; Love entered the restaurant about 9:30 a.m.
But he also testified that while Love entered two hours before its posted time, he did so through an unlocked door and it was the restaurant’s practice not to refuse orders that are placed shortly before it officially opens for the day.
Testimony was also given by the gas station manager and by Love’s son, who told the court that his father had gone out for groceries between 9 and 10 a.m. and returned with a black Toshiba laptop, but no groceries, and he identified his father from the surveillance footage.
According to the appeals court decision authored by Judge Bruce Willis, before closing arguments the state requested an amendment to the jury instructions to include language indicating that even if an establishment is open to the public, a burglary can occur if an individual enters an area that is not open to the public.
Over the objections of Love’s attorney, Anoka County District Court Judge Barry Sullivan agreed to include the language in the jury instructions.
That instruction “misstated Minnesota law” and does not reflect the language of the statute, ruled the three-judge appeals court panel of Michael Kirk, Carol Hooten and Willis.
According to Willis, under state law, to enter a building without consent “means to enter a building without consent of the person in lawful possession,” but “whoever enters the building while open to the general public does so with consent except when consent was expressly withdrawn through entry,”
“Though the evidence suggests that Love went to the cash-register counter, there is no evidence that he went into any separate, contained area not open to the public or that consent to enter the cash-register area was expressly revoked,” Willis wrote in the decision.
Nor was the error harmless, according to Willis. The appeals court panel “could not say that the erroneous jury instruction had no significant impact on the verdict because it gave an expanded basis upon which the jury could conclude that Love did not have the owners’ consent to be in the restaurant,” Willis wrote.
In his appeal, Love conceded that there is sufficient evidence to support his theft conviction, but he argued that the evidence is not sufficient to establish he entered the restaurant without consent, therefore his actions could not constitute burglary.
Willis wrote that to establish that Love had committed a burglary, the state had to prove that he entered the restaurant without consent by showing that it was not open to the public at the time of the burglary or that consent to enter had been expressly revoked.
“The record contains conflicting evidence,” he wrote.
While Love entered the restaurant about two hours before opening time, he did so through an unlocked front door and testimony from the restaurant employee indicated that it was practice not to refuse orders that are placed shortly before it officially opens for the day, according to Willis.
“Although the record may contain sufficient evidence to support Love’s burglary conviction, because the jury did not have the opportunity to weigh conflicting evidence based on proper instruction, we reverse and remand for a new trial.”
The appeals court did reject Love’s two other arguments – that the district court abused its discretion by admitting witness’ recollections of a destroyed tape and by admitting a video without proper authentication.
The court ruled that because Love did not demonstrate that the restaurant’s surveillance footage was destroyed in bad faith, the district court did not abuse its discretion by allowing a witness to testify regarding his recollections of the footage.
According to Willis, the external surveillance footage from the gas station was adequately authenticated because the timestamp on the video was what the state claimed.