State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A17-0707

State of Minnesota,
Respondent,

vs.

Ryan Michael Beach,
Appellant.

Filed May 7, 2018
Affirmed in part, reversed in part, and remanded
Hooten, Judge

Crow Wing County District Court
File No. 18-CR-16-3969

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

Donald F. Ryan, Crow Wing County Attorney, Candace Prigge, Assistant County
Attorney, Brainerd, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Suzanne M. Senecal -Hill,
Assistant Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Hooten, Presiding Judge; Johnson, Judge; and Kirk,
Judge.
U N P U B L I S H E D O P I N I O N
HOOTEN, Judge
Appellant challenges his conviction of receiving stolen property, arguing that there
was insufficient circumstantial evidence and that the prosecutor committed misconduct
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during closing arguments by shifting the burden of proof to him. Appellant also argues
that his sentence for trespassing on school property should be vacated because it was a part
of the same behavioral incident as the receiving-stolen-property conviction. We affirm in
part, reverse in part, and remand.
FACTS
Staff at Central Minnesota Senior Care in Brainerd c ontacted the police on
September 7, 2016, because a motorized wheelchair belonging to one of their residents had
been stolen from the garage where it was being stored. The next day, a Brainerd resident
contacted the police to report that a riding lawnmower and BMX bicycle had been stolen
from his garage. On September 14, Officers Rachel Boggs and Paul Rosier went to
appellant Ryan Beach’s apartment building in response to a complaint from Beach’s
neighbor about possible stolen property.
When Officers Boggs and Rosier arrived at the apartment building, they co ntacted
the building’s owner. The owner told police that he was allowing Beach to store a
wheelchair in the garage associated with the apartment building. With the owner’s
permission, th e officers entered the garage and found a motorized wheelchair, riding
lawnmower, and BMX bicycle. The wheelchair’ s serial number matched that of the
wheelchair stolen from Central Minnesota Senior Care, and the bicycle and lawnmower
matched the Brainerd resident’s description of what had been stolen from his garage.
The officers then went to Beach’s apartment. A woman answered the door and said
that Beach was not home, but the officers observed Beach running out a different door of
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the apartment. The officers gave chase for about a block and a half, at which point Beach
ran into a school and hid in the second floor restroom where he was later found and arrested.
The state charged Beach with receiving stolen propert y in violation of Minn.
Stat. § 609.53, subd. 1 (2016), trespass on school propert y in violation of Minn.
Stat. § 609.605, subd. 4 (2016), and fleeing a peace officer in violation of Minn.
Stat. § 609.487, subd. 6 (2016). Beach pleaded guilty to trespassing on school property
and fleeing a pe ace officer, but went to trial on the receiving -stolen-property charge. A
jury found him guilty. The district court sentenced him to 23 months in prison for receiving
stolen property and a concurrent 90 days in jail for the trespass. No sentence was imposed
for the fleeing-a-peace-officer charge. This appeal follows.
D E C I S I O N
I.
Beach first argues that there was in sufficient circumstantial evidence to prove
beyond a reasonable doubt that he knew or had reason to know that the property was stolen.
We review convictions based on circumstantial evidence using heightened scrutiny. State
v. Al-Naseer, 788 N.W.2d 469, 473 (Minn. 2010). Heightened scrutiny is applied when all
of the evidence is circumstantial or when the disputed element was proved e xclusively by
circumstantial evidence. State v. Silvernail, 831 N.W.2d 594, 603–04 (Minn. 2013) (Stras,
J., concurring). Since the knowledge element was proved by circumstantial evidence, we
apply heightened scrutiny.
Heightened scrutiny involves two steps. The first is to identify the circumstances
proved. State v. Hanson, 800 N.W.2d 618, 622 (Minn. 2011). The second is to “examine
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independently the reasonableness of all inferences that might be drawn from the
circumstances proved.” Id. (quotations omitted). Once we have performed both steps we
will maintain a guilty verdict only if “there are no other reasonable, rational inferences that
are inconsistent with guilt.” Id. (quotations omitted). That means that the “[c]ircumstantial
evidence must form a complete chain that, as a whole, leads so directly to the guilt of the
defendant as to exclude beyond a reasonable doubt any reasonable inference other than
guilt.” Id. But we will not overturn a conviction “on the basis of mere conjecture. ” Id.
(quotations omitted). And we view the evidence presented as a whole. Id. at 623.
In our examination of the circumstances proved, we “defer to the jury’s acceptance
of the proof of these circumstances as well as the jury’s rejection of evidence in the record
that conflicted with the circumstances proved by the State.” Id. at 622. The neighbor
testified that he had seen the stolen property hidden in some bushes in the yard by Beach’s
apartment for several days before the police came. He also noted that he had seen children
playing with the wheelchair in his yard. And he explained that at the time he believed that
the property had been stolen and that Beach was the one hiding it. The building owner
testified that, before it was put in the garage, the wheelchair was being kept under a tarp or
quilt in the yard. The owner also testified to telling Beach’s girlfriend that they could store
the wheelchair in the garage . Police found the stolen property in that garage. Beac h fled
on foot when police came to his apartment.
In examining the reasonable inferences that can be drawn from these circumstances,
we consider inferences consistent with guilt and innocence and are not required to defer
“to the fact finder’s choice between reasonable inferences.” Id. (quotations omitted). It is
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reasonable to infer that Beach knew or had reason to know that the property was stolen.
See State v. Wiberg , 296 N.W.2d 388, 397 (Minn. 1980) (citing favorably to Husten v.
United States, 95 F.2d 168, 170 (8th Cir. 1938), which held that unexplained possession of
recently stolen property is sufficient to support a jury finding that defendant knew it was
stolen). Based upon the fact that the wheelchair had been covered outside in the bushes of
the building under a quilt or tarp and was later found by the police in the building’s garage,
along with a stolen lawnmower and BMX bike, it is reasonable to infer that Beach was
trying to hide the stolen property. It is also reasonable to infer that Beach ran from the
police because he knew that he had the stolen property. See State v. Taylor, 869 N.W.2d
1, 22 (Minn. 2015) (explaining that fleeing from police can be “suggestive of consciousness
of guilt” (quotation omitted)).
Beach asserts that there are reasonable inferences inconsistent with guilt. He argues
that it is possible to infer that the property was abandoned and he found it, or that he bought
it from a pawn shop, or that he receive d it from someone without realizing that it was
stolen. He also argues that it is reasonable to infer that he fled from police not because of
consciousness of guilt, but rather because of his prior criminal history and his dislike for
interacting with pol ice. But to overturn Beach’s conviction , there would have to be a
“reasonable, rational inference[]” that is inconsistent with guilt. Hanson, 800 N.W.2d at
622 (quotation omitted). We see no such inference here. While the scenarios that Beach
suggests are technically possible, when looking at the evidence as a whole, we conclude
that the only reasonable , rational inference is that Beach knew he was in possession of
stolen property. See id. at 623 (explaining that on appeal the evidence is to be viewed as a
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whole); see also State v. Lahue , 585 N.W.2d 785, 789 (Minn. 1998) ( stating that a
conviction based on circumstantial evidence will not be overturned on the basis of an
alternative theory that is not plausible or supported by the evidence).
II.
Beach’s next argument is that the prosecutor committed misconduct during closing
argument by shifting the burden of proof onto him. Beach did not object to the prosecutor’s
closing arguments at trial, so we review this claim using the modified plain error standard.
State v. Ramey, 721 N.W.2d 294, 297 (Minn. 2006). The burden is on Beach to show that
there was plain error. Id. at 302. If Beach is able to show that the misconduct constituted
plain error, then the burden shifts to the state to show that the “misconduct did not prejudice
[his] substantial rights.” Id. at 300. If Beach’s substantial rights were affected, then we
must decide whether “fairness and the integrity of the judicial proceedings” require a
reversal. State v. Matthews, 779 N.W.2d 543, 551 (Minn. 2010).
Beach complains about specific parts of the state’s closing argument. Beach quotes
portions of the closing arguments where the prosecutor said that Beach’s conduct did not
make sense and that there was no legitimate reason for him to ha ve the wheelchair. He
also takes exception to a series of rhetorical questions, including when the prosecutor asked
why someone would hide a wheelchair in the bushes if it was not stolen. Beach asserts that
these statements from the prosecutor gave the j ury the impression that he had to provide
legitimate explanations to the jury for his actions when, in actuality, he had no such burden.
We begin by examining whether there was plain error. “An error is plain if it was
clear or obvious.” Ramey, 721 N.W.2d at 302 (quotations omitted). “Usually this is shown
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if the error contravenes case law, a rule, or a standard of conduct.” Id. “[M]isstatements
of the burden of proof are highly improper and constitute prosecutorial misconduct.” State
v. Coleman, 373 N.W.2d 777, 782 (Minn. 1985). But a “prosecutor may pose rhetorical
questions to the jury, asking it to use common sense to determine whether the defense
presented is reasonable.” State v. Bauer, 776 N.W.2d 462, 4 74 (Minn. App. 2009). And
a “prosecutor may draw reasonable inferences from [the] evidence presented at trial.” Id.
(quotations omitted). The prosecutor in this case asked questions that were rhetorical in
nature and invited the jury to draw conclusions or make inferences about Beach based o n
his conduct. That is the nature of argument, especially when dealing with circumstantial
evidence. See Hanson, 800 N.W.2d at 622 (discussing how, with circumstantial evidence,
juries make inferences b ased on the circumstances proved ). Importantly, the prosecutor
did not insinuate that Beach should have testified or called any witnesses. See Griffin v.
California, 380 U.S. 609, 615, 85 S. Ct. 1229, 1233 (1965) (holding that the Fifth
Amendment “forbids . . . comment by the prosecution on the accused’s silence”). We
conclude that the prosecutor’s arguments did not misstat e the burden of proof or shift it
onto Beach, so there was no error, plain or otherwise, and Beach’s argument fails.
III.
Beach’s final argument is that he should not have been sentenced for both receiving
stolen property and trespassing on school property . “[I]f a person’s conduct constitutes
more than one offense under the laws of this state, the person may be punished for only
one of the offenses.” Minn. Stat. § 609.035, sub d. 1 (2016). This has been interpreted to
mean that a defendant cannot receive “multiple sentences for crimes that arise from a single
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behavioral incident.” State v. Bauer , 792 N.W.2d 825 , 827 (Minn. 2011). When a
defendant receives multiple sentences f or a single behavioral incident, the lesser sentence
must be vacated. See State v. Kebaso , 713 N.W.2d 317, 322 (Minn. 2006) (stat ing that
Minn. Stat. § 609.035 “contemplates that a defendant will be punished for the most serious
of the offenses arising ou t of a single behavioral incident” (quotations omitted)).
Determining whether offenses are part of a single behavioral incident is a mixed question
of law and fact that requires us to review the facts for clear error and the “application of
the law to those facts de novo.” State v. Jones, 848 N.W.2d 528, 533 (Minn. 2014).
According to Beach, because he trespassed on school property in reaction to the
police coming to talk to him about the stolen property, both offenses arose out of the same
behavioral i ncident. In this case , we apply the avoidance -of-apprehension doctrine to
determine whether the offenses were in fact part of a single behavioral incident. See State
v. Gibson, 478 N.W.2d 496, 497 (Minn. 1991). Under this doctrine, a defendant cannot be
given more than one sentence if he (1) committed the second offense substantially
contemporaneously to the first and he (2) did so “in order to avoid apprehension for the
first offense.” Id.
We must first determine whether the trespass was substantially contemporaneous to
Beach receiving the stolen property. In Gibson, the defendant was convicted of both
leaving the scene of an accident and driving while impaired after he fled a car accident on
foot. Id. The supreme court vacated the leaving -the-scene conviction because the two
crimes occurred substantially contemporaneously to one another. Id. In this case, the
neighbor and the apartment building owner both reported seeing the stolen property at least
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several days before the police came to talk to Beach. Determining whether the two crimes
happened substantially contemporaneously therefore depends on whether we look to when
Beach first received the property or whether we consider Beach’s ongoing possessi on of
the property.
State v. Banks helps to answer this question . 331 N.W.2d 491 (Minn. 1983). In
Banks, the defendant was convicted of illegally possessing a firearm and fleeing from
police. Id. at 492. The supreme court concluded that the two offenses were not part of a
single behavioral incident. Id. at 494. In doing so , the supreme court noted that the
defendant indicated that he fled from police because he did not have a driver’s license. Id.
The court also suggested that he may have been trying to avoid apprehension for previous
forgery offenses that he had committed. Id. Because the defendant had reasons other than
the illegal possession of a firearm to flee from the police—meaning that the possession and
fleeing offenses could each be explained without “necessary reference” to the other —the
supreme court concluded that the two offenses were not part of a single behavioral incident.
Id. In other words, the defendant failed the second part of the test later articulated in
Gibson, which requires that he commit the second offense “in order to avoid apprehension
for the first.” Gibson, 478 N.W.2d at 497. Importantly, the Banks court did not reach its
conclusion on the basis of the defendant’s possession of the firearm commencing prior to
the fleeing-from-an-officer offense, meaning his argument did not fail the first step of the
Gibson test requiring that the offenses occur substantially contemporaneously. In fact, the
supreme court noted that “[t]he possessory offense was a continuing offense.” Banks, 331
N.W.2d at 494. Similarly, Minn. Stat. § 609.53 criminalizes not only receiving stolen
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property but also possessing, transferring, buying, or concealing stolen property, so we
understand it to be a “continuing offense” as well. See State v. Lawrence , 312 N.W.2d
251, 253 –54 (Minn. 1981). That means that when we perform a substantially
contemporaneous analysis with a possessory crime, we consider ongoing possession, rather
than the time at which the defendant initially received the objec t. Accordingly , we
conclude that the continuing offense of receiving stolen property was occurring
substantially contemporaneously with the fleeing -from-a-peace-officer and trespassing -
on-school-property offenses, thereby satisfying the first step of the avoidance-of-
apprehension doctrine.
The next question is whether Beach committed the trespass in order to avoid
apprehension for receiving stolen property. The fact that Beach started fleeing from the
police when they came to his door right after findi ng the stolen property at his apartment
building supports Beach’s contention that he fled in order to avoid apprehension for
receiving stolen property. Moreover, unlike in Banks, the record here does not provide
additional reasons explaining why Beach wanted to avoid the police. We conclude that
Beach was fleeing from the police in order to avoid apprehension for receiving stolen
property. Accordingly, we determine that the trespassing sentence (but not the conviction),
as the lesser of the two sentences, should be vacated by the district court on remand.
Affirmed in part, reversed in part, and remanded.