State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-2158

State of Minnesota,
Respondent,

vs.

Jabar Pedro Morarend,
Appellant

Filed December 2, 2019
Affirmed
Florey, Judge

Freeborn County District Court
File No. 24-CR-18-133

Keith Ellison, Attorney General, St. Paul, Minnesota; and

David Walker, Freeborn County Attorney, Abigail H. Lambert, Assistant County Attorney,
Albert Lea, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appel late Public Defender, Melissa Sheridan, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Johnson, Presiding Judge; Florey, Judge; and John
Smith, Judge.*

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.

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U N P U B L I S H E D O P I N I O N
FLOREY, Judge
Appellant argues that his conviction for second -degree burglary must be reversed
because the state failed to prove beyond a reasonable doubt that he entered the home with
the intent to commit a theft. We affirm.
FACTS
At approximately 6:31 a.m. on January 26, 2018, officers from the Albert Lea Police
Department responded to a call of a burglary in progress. On that morning, C.C. was asleep
in her home when she was awoken by pounding at her front door and the ringing of her
doorbell. C.C. saw a “girl” and “guy” outside her home, both wearing hoods. Fearing her
home was about to be broken into, C.C. put on snow pants over her pajamas, grabbed her
purse off the nightstand by her bed, got into her truck, and drove away.
C.C. drove around the block, and, as she approached her home, observed the female
in the street. The female told C.C. she was having a fight with her boyfriend, and C.C. told
her that she was going to call the police. C.C. saw the female immediately make a call on
her cell phone. C.C. pulled into her neighbor’s driveway and honked her horn until h e
came out to assist her. The neighbor then called 911.
Police officers arrived and escorted C.C. back to her home, where she observed that
a sliding glass pa tio door was standing wide open. It had not been open when she left.
Another patio door was bowed and would not close properly. C.C. did not have trouble
shutting it prior to the break-in. The only thing that she noticed was amiss inside her home

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were two open bedroom n ightstand drawers , which had been closed when she l eft that
morning.
It had snowed the previous evening, and officers observed a single pair of shoeprints
with a distinctive tread coming down the stairs from the upper patio. The shoeprints had a
waffle pattern in the front and a horseshoe shape with an oval in the center at the heel.
Officers tracked the shoeprints through the neighboring yards, across a highway where they
discovered a recently discarded black sweatshirt along the side of the road, along a dirt
road and abandoned railro ad track, through a wooded area, across a creek , and finally to
the porch of a house on 10th Street in Albert Lea.
In the basement of the 10 th Street home the officers discovered appellant Jabar
Pedro Morarend hiding behind a sheet hung to divide the room, behind which was also a
running washing machine. The officers removed a pair of dark jeans with thistles on it
from the washing machine, which sounded like it was at the beginning of a wash cycle .
Next to the washing machine, near where Morarend was hidi ng, officers located a pair of
shoes that matched the tread-pattern they were tracking through the snow. The shoes were
wet and also contained burrs and thistles. Finally, officers discovered a pair of pocket
knives on top of the washing machine. Morarend was sweaty, red in the face, and appeared
to have been recently active. He was wearing too-large sweatpants that wouldn’t stay up
and poorly fitting shoes that belonged to the resident of the basement, which made it
difficult for Morarend to walk.

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Morarend was arrested and ultimately charged with second-degree burglary. A jury
found him guilty, and the district court sentenced him to 51 months in prison. This appeal
follows.
D E C I S I O N
Morarend argues that the circumstantial evidence was insuff icient to support his
conviction for second-degree burglary. This court uses a two-step analysis when reviewing
a challenge to the sufficiency of circumstantial evidence. State v. Silvernail, 831 N.W.2d
594, 598 (Minn. 2013). First, the court must identify the circumstances proved. Id.
We defer to the [fact finder’s] acceptance of the proof of these
circumstances and rejection of evidence in the record that
conflicted with the circumstances proved by the State . . . We
construe conflicting evidence in the light most favorable to the
verdict and assume that the [fact finder] believed the State’s
witnesses and disbelieved the defense witnesses.

Id. at 598-99 (quotations omitted). Next, “we must determine whether the circumstances
proved are consistent with guilt and inconsistent with any rational hypothesis except that
of guilt . . . We give no deference to the fact finder’s choice between reasonable
inferences.” Id. at 599 (quotations omitted).
Morarend argues that there was insufficient evidence to show that he possessed the
intent to commit a crime independent of trespass, which is necessary to support a charge
of burglary. Minn. Stat. § 609.582, subd. 2 (2016) (“Whoever enters a building without
consent and with intent to commit a crime . . . commits burglary . . . .”); State v. Colvin,
645 N.W.2d 449, 452 (Minn. 2002) (“For a burglary conviction to stand, the state must
prove that a defendant intended to commit some independent crime other than trespass.”).

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Because nothing was removed from C.C.’s home, Morarend asserts that the evidence only
establishes that he committed a trespass.
In burglary cases, the intent to commit an independent crime must generally be
proven by the circumstances surrounding the defendant’s acts. State v. Ring, 554 N.W.2d
758, 760 (Minn. App. 1996), review denied (Minn. Jan. 21, 1997). The following
circumstances were proven at trial:
(1) An unknown man and woman banged on C.C.’s
front door and rang her doorbell early in the morning,
while it was still dark out, with hoods drawn tight
around their faces;
(2) C.C., believing the unknown man and woman
were about to break into her home, fled in her vehicle;
(3) after C.C. told the woman she was going to call
the police she saw the woman immediately place a call
on her cell phone;
(4) when the police arrived the unknown man was
gone;
(5) when C.C. returned to her home with the police
one patio door was comp letely open, and another was
damaged and wouldn’t close properly;
(6) an officer testified that it would be possible to
break into the patio doors using a knife because neither
door locked with a dead bolt;
(7) two nightstand drawers had been opened;
(8) officers tracked the single set of footprints with
a distinct tread from C.C.’s upper patio back to the home
on 10th Street;
(9) at the 10th S treet home, Morarend was
discovered hiding behind a sheet in the basement,
wearing someone else’s pants and shoes, and two
pocket knives were on top of the washing machine that
did not belong to the resident of the basement;
(10) the tread on the shoes discovered next to
Morarend in the basement matched the footprints
followed by the officers from C.C.’s u pper patio to the
home on 10th Street.

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Morarend first asser ts that the circumstances proved are consistent with the
reasonable-alternative hypothesis that only the female en tered C.C.’s home, but this
hypothesis fails to account for the fact that only a single set of footprints were found on the
stairs leading down from the upper patio, which matched the tread on the shoes discovered
next to Morarend in his basement hiding place.
Next, Morarend asserts in his pro se brief that he only went into C.C.’s home to get
out of the cold. However, there is no evidence in the record to substantiate his assertion
on appeal that he was merely seeking to escape the cold. Therefore, ther e wa s no
circumstance proved at trial that can support this hypothesis.
Finally, Morarend asserts that the circumstantial evidence is consistent with the
reasonable alternative hypothesis that he was merely a tre spasser high on
methamphetamine and therefor e lacked the intent to commit an independent crime in
C.C.’s home. First, as with his hypothesis related to the cold, no evidence in the record
supported this hypothesis . Next , Morarend’s hypothesis fails to account for the
circumstance proved that someone other than C.C. opened her nightstand drawers after she
fled her home. In State v. Roehl , this court found sufficient circumstantial evidence of
intent to commit an independent crime where a “locked door had been forced open at night
after business hou rs [ and] Roehl fled after being found inside the building . . . .” 409
N.W.2d 44, 47 (Minn. App. 1987).
Similarly, in State v. Witte, the supreme court stated that “the fact nothing was taken
from the building does not destroy the reasonableness of an i nference that at the time of
entry an intent to commit theft in fact existed.” 158 N.W.2d 266, 268 (Minn. 1968). There,

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the supreme court found that along with direct evidence of an unauthorized entry, the fact
that papers had been strewn about, indicati ng that the owner’s desk, file cabinet, and two
brief cases had been ransacked, were sufficient to support a finding of an intent to commit
a theft. Id.
Here, the fact that there was: an unauthorized entry; the nightstand drawers had been
opened; Morarend fled the scene; and two pocket knives were found on top of the washing
machine that his pants were being washed in are all consistent with the hypothesis that
Morarend entered C.C.’s home with the intent to commit a theft and are inconsistent with
any reasonable innocent hypothesis.
Affirmed.