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State v. Burnett2/3/2004
he car's license plate information (No. 14U15) as reported by Rosch. Towler stated that while en route to Russ's, she learned that a deputy sheriff had already stopped the car. Towler proceeded to Russ's to get more information about the alleged shoplifting incident. While at Russ's, Towler was advised that Burnett was in custody and en route to the sheriff's department. Towler requested that Burnett be taken to Russ's so that Hallett and Rosch could positively identify Burnett. Approximately 15 to 20 minutes later, another officer of the Hastings Police Department drove by the front of the store, with Burnett in the back seat of the police car, and stopped, at which time Hallett and Rosch identified Burnett as the individual who left the store with the cigarettes. Thereafter, Towler went to the sheriff's department. While Towler was there, a woman came into the sheriff's department and gave Towler two cartons of Marlboro cigarettes. Towler took the cigarettes into custody, placed them in a bag, marked the bag with evidence tape and Towler's name, filled out an evidence form, and placed the cigarettes into an evidence locker. At trial, Towler identified the two cartons of Marlboro cigarettes as those she received from the woman. Towler stated she was present during a conversation at the sheriff's department when Burnett denied that he took any Marlboro cigarettes from Russ's, but, rather, claimed that he had two cartons of Newport cigarettes in his possession.
Melissa Bauman also testified on behalf of the State. Bauman testified that she was with Burnett on the day in question and that she drove Burnett to Russ's. Bauman claimed that she did not know the purpose of their visit to Russ's, but that Burnett went into the store and came out approximately 10 minutes later with some cigarettes. Bauman stated that she was driving a blue-colored car with license plate No. 14U15. Bauman further stated that after they left Russ's, she got pulled over because she was not using her turn signal, and that Burnett was arrested at that time. Bauman further stated that she later found some cigarettes under the passenger seat and took them to "Paul Weber" at the "courthouse." At trial, Bauman denied that the cigarettes shown to her (and taken into custody by Towler) were the same cigarettes she found in her car.
Burnett testified at trial in his own behalf. Burnett admitted that he was in Bauman's car on the day in question, and he claimed that he was wearing a black jacket. Burnett further claimed that there was a third individual, whom he identified as "Rick," in Bauman's car. Burnett also claimed that there was a baby in the car. Burnett described "Rick" as a black male who was wearing a red sweatshirt with a hood. Burnett stated that it was "Rick" who went into Russ's, but that "Rick" did not come out of the store with anything. Burnett further indicated that after they left Russ's and before they were pulled over, "Rick" had gotten out of the car. Burnett testified that he had two cartons of Newport cigarettes on his lap when Bauman was stopped. Burnett indicated that the officer who stopped Bauman questioned Burnett about the cigarettes that had been taken from Russ's. Burnett testified that the officer retrieved the two cartons of Newport cigarettes from Bauman's car and then arrested him. Burnett denied that he got the Newport cigarettes from Russ's. On cross-examination, Burnett admitted he never told the police about "Rick" or that "Rick" was the person who allegedly took the Marlboro cigarettes.
ASSIGNMENTS OF ERROR
Burnett alleges that the district court erred in (1) finding that there was sufficient evidence to support his conviction and (2) imposing an excessive sentence of
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