This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA
IN COURT OF APPEALS
A15-1820
State of Minnesota,
Respondent,
vs.
Andrew Allen Heidemann,
Appellant.
Filed November 14, 2016
Affirmed
Bratvold, Judge
Rice County District Court
File No. 66-CR-15-104
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Joseph D. Van Thomme, Fairbault City Attorney, Eckberg Lammers, P.C., Stillwater,
Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Jennifer L. Lauermann, Assistant
Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Bratvold, Presiding Judge; Peterson, Judge; and Hooten,
Judge.
UNPUBLISHED OPINION
BRATVOLD, Judge
Appellant Andrew Allen Heidemann challenges his conviction of theft, asserting
that the evidence is insufficient to support his conviction and that he was denied a fair trial
because of prosecutorial misconduct. Because the state presented evidence that appellant
left a Wal-Mart without paying for a $16 package of cold sore cream, the evidence is
sufficient to support the jury’s verdict, and the prosecutor did not commit error during
closing argument, we affirm.
FACTS
On December 24, 2014, Heidemann was at Wal-Mart in Fairbault, Minnesota.
Heidemann was in the pharmacy department where he removed a package of Abreva, a
cold sore treatment, from the shelf and took it to the pharmacy register. Heidemann then
purchased a prescription at the pharmacy counter, but did not pay for the Abreva.
Heidemann left the pharmacy department, still holding the Abreva.
After Heidemann left the pharmacy, an asset protection employee, T.H., noticed
him and started following him. T.H. testified that Heidemann walked up and down aisles,
paid close attention to who was around him, randomly selected products from shelves, and
did not use a cart. Based on T.H.’s training, Heidemann’s behavior was suspicious.
T.H. followed Heidemann through the automotive/hardware department, stationery
department, grocery department, and into apparel. T.H. saw Heidemann pick up some items
in the automotive/hardware department, one of which was a black light. T.H. also saw that
Heidemann still held the Abreva, which she identified by its blue egg-like shape. T.H. saw
Heidemann set down the black light in the stationery department, but Heidemann still held
the Abreva and two unidentified items.
In the grocery department, Heidemann picked up paper towels and then walked to
the apparel department. T.H. saw Heidemann put the Abreva and two unidentified items in
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his right pocket. Heidemann then went to register 14, where he paid for the paper towels
and a soda, but not for the Abreva. In all, T.H. observed Heidemann for less than 30
minutes.
Heidemann then exited the store, setting off alarms. The store greeter, who was
stationed at the doors, asked Heidemann to show his receipt. Heidemann said he left the
receipt at the register, showed the greeter his bag, and continued walking out of the store.
T.H. followed Heidemann into the parking lot and asked Heidemann to come to her office,
Heidemann said no, got into his car, and drove away.
T.H. reviewed the surveillance video footage of Heidemann’s time in the store and
selected certain video clips showing Heidemann in different areas of the store. The parties
stipulated to foundation for the video clips, which was marked as an exhibit and received
into evidence. The video clips do not show Heidemann’s entire trip to Wal-Mart. There is
no video of Heidemann in the apparel department because Wal-Mart did not have a camera
there; there is no video of Heidemann at register 14 because the camera in that area was
broken; and there is no video of Heidemann and T.H. in the parking lot because T.H. did
not select that video. The video exhibit shows Heidemann in the pharmacy department;
Heidemann holding the Abreva product; Heidemann walking through different areas of the
store; Heidemann setting off the alarms by the door and being approached by T.H; and
Heidemann leaving the store.
T.H. called the Fairbault Police Department, reported the theft to Officer Tonjum,
gave him Heidemann’s license plate number, and a copy of the surveillance video clips.
Officer Tonjum attempted to contact Heidemann, but the telephone numbers were
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inoperable. The state issued a complaint-warrant for Heidemann, charging him with
misdemeanor theft.
During a two-day jury trial, the state offered testimony by T.H. and Officer Tonjum.
During questioning, a number of inconsistencies in T.H.’s testimony were raised. T.H.
testified that she saw Heidemann in the pharmacy, but later stated she was not “watching
him immediately when he was at the pharmacy.” Additionally, T.H. testified that she was
at register 14 when Heidemann checked out, but later stated she was “maybe about 40 feet
away.” Also, T.H. testified that Heidemann stole Abreva and two other unidentified items
from Wal-Mart, but Officer Tonjum testified that T.H. reported to him that Heidemann
stole clothing. T.H. later told police that she was mistaken and Heidemann had paid for the
clothing. Moreover, T.H. testified that Heidemann was wearing jeans and had “longer”
hair. The surveillance footage, however, showed Heidemann was wearing cargo-type pants
and had short hair. Finally, T.H. testified that she was working alone, but Officer Tonjum
testified that he spoke with two asset protection employees.
During closing argument, the prosecutor stated that Heidemann “fled” and “ran”
from the store. The prosecutor also argued that T.H. was not a biased witness. The jury
found Heidemann guilty of theft, and this appeal follows.
DECISION
I. Sufficiency of the Evidence
Heidemann argues that there is insufficient evidence to prove that he committed
theft in violation of Minnesota Statute section 609.52, subdivision 2(a)(1), which requires
the state to prove beyond a reasonable doubt that he intentionally and without claim of right
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took, used, transferred, concealed, or retained possession of another’s property without
their consent and with the intent of permanently depriving them of possession. Specifically,
he argues that the state’s case fails because: (1) T.H. is a biased witness; (2) T.H.’s
testimony at trial was inconsistent; and (3) the prosecution failed to introduce corroborating
evidence to prove its case beyond a reasonable doubt. We discuss each argument in turn.
This court examines the weight and sufficiency of evidence by determining whether
the record supports the jury’s verdict that the accused “is guilty of the offense charged.”
State v. Combs, 292 Minn. 317, 320, 195 N.W.2d 176, 178 (1972). “On review, it is
necessary to assume that the jury believed the state’s witnesses and disbelieved any
contrary evidence.” State v. Bliss, 457 N.W.2d 385, 390 (Minn. 1990) (citation omitted).
A. Bias
Heidemann argues that his conviction must be reversed because T.H. was biased.
Impeachment of a witness by examination for possible bias is proper. State v. Pride, 528
N.W.2d 862, 865 (Minn. 1995). Even if a witness is biased, “it [is] nevertheless for the jury
to determine who was telling the truth,” State v. Thorvildson, 135 Minn. 98, 98–99, 160
N.W. 247, 247 (1916), because credibility determinations are the “exclusive function of
the jury,” State v. Hadgu, 681 N.W.2d 30, 34 (Minn. App. 2004) (quotation omitted),
review denied (Minn. Sept. 21, 2004). On review, this court will defer to the jury’s
determination of credibility. State v. Pendleton, 706 N.W.2d 500, 511–12 (Minn. 2005).
An argument similar to Heidemann’s was raised in Thorvildson, where appellant
challenged the denial of a new trial after he was found guilty of selling “intoxicating
liquors.” 135 Minn. at 98, 160 N.W. at 247. At the trial, a private detective testified. Id.
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On appeal, appellant challenged the sufficiency of the evidence, arguing the detective was
biased. The supreme court affirmed, stating it could not hold “as a matter of law” that the
detective’s testimony lacked credence because it was his job to detect violations of liquor
laws. Id. at 98-99, 160 N.W. at 247.
The same principle applies here. Simply because T.H. was employed by Wal-Mart
as an asset protection employee to prevent shoplifting does not support reversal. The jury
heard T.H.’s testimony, as well as the evidence about her potential bias, and determined
that her testimony was credible. Because credibility determinations are the “exclusive
function of the jury,” Hadgu, 681 N.W. 2d at 34, this court will defer to their judgment.
B. Inconsistent Testimony
Heidemann argues that, because of inconsistencies in T.H.’s testimony, the jury
should have disbelieved her. “[O]n review of a criminal conviction, [this court] will
construe the record most favorably to the state.” State v. Pieschke, 295 N.W.2d 580, 584
(Minn. 1980). “Even inconsistencies in the state’s case will not require a reversal of the
jury verdict,” id., 295 N.W.2d at 584, because “the resolution of conflicting testimony is
the exclusive function of the jury.” State v. Lloyd, 345 N.W.2d 240, 245 (Minn. 1984).
In essence, Heidemann asks this court to rehear his case, but that is something this
court cannot do. See State v. Bauer, 471 N.W.2d 363, 366 (Minn. App. 1991) (stating that
this court does not retry the facts and declining to do so when contradictory evidence was
presented to the jury), review denied (Minn. July 24, 1991). The record reflects that the
jury received the standard jury instruction that they are the “sole judges of whether a
witness is to be believed.” 10 Minnesota Practice, CRIMJIG 3.12 (6th ed. 2016). Because
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the jury heard T.H.’s testimony, Heidemann’s closing argument that T.H.’s testimony was
inconsistent, and the jury was properly instructed regarding witness credibility, we will
construe the record in the light most favorable to the conviction, and conclude that the jury
resolved any conflicts in favor of the state.
C. Corroboration
Heidemann argues that where “additional reasons to question the [witness’s]
credibility” exist, the court may reverse a conviction if the state does not present
corroborating evidence. State v. Foreman, 680 N.W.2d 536, 539 (Minn. 2004).
Heidemann’s argument misconstrues the law. “It is well-settled that a conviction can rest
on the uncorroborated testimony of a single credible witness.” State v. Hill, 285 Minn. 518,
518, 172 N.W.2d 406, 407 (1969). “As long as the evidence [is] sufficient to reasonably
support the jury’s finding, the credibility of a witness [is] for the jury to determine.”
Foreman, 680 N.W.2d at 539. Corroboration of a witness’s testimony is required where
that witness is an accomplice to the crime, Minn. Stat. § 634.031 (2014), or when accused
of treason. Minn. Const. art. 1, § 9. Other crimes do not require corroboration of witness
testimony.
Heidemann relies on three cases, State v. Huss, 506 N.W.2d 290 (Minn. 1993); State
v. Langteau, 268 N.W.2d 76 (Minn. 1978); and State v. Gluff, 285 Minn. 148, 172 N.W.2d
63 (1969). However, these cases are distinguishable “because each involved additional
reasons to question the victim’s credibility.” Foreman, 680 N.W.2d at 539 (affirming
conviction after considering these cases). In Huss, a conviction was overturned because the
court found the three-year-old victim’s testimony to be coerced due to her exposure to
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highly suggestive material and because her testimony otherwise lacked credibility. 506
N.W.2d at 292–93. In Langteau, a conviction was overturned because the record regarding
the sole witness/victim was incomplete and did not explain contradictions with other
established facts. 268 N.W.2d at 77. Finally, in Gluff, a conviction was overturned because
the victim had only a short time to view the perpetrator, she admitted she was focused on
the gun aimed at her, and the lineup procedures were impermissibly suggestive. 285 Minn.
at 151, 172 N.W.2d at 65.
Here, “no other reasons” exist to question T.H.’s credibility. Foreman, 680 N.W.2d
at 539. T.H. was not subjected to suggestive material, had a legitimate reason to follow
Heidemann around the store, and she continuously observed Heidemann for approximately
30 minutes. Moreover, even assuming that corroboration is required, the state produced
corroborating evidence in the form of the surveillance video clips. Thus, Heidemann’s
argument that the state must produce corroborating evidence fails.
II. Prosecutorial Misconduct
Heidemann argues that the prosecutor committed misconduct in his closing
arguments by: (1) misrepresenting the manner in which Heidemann left Wal-Mart;
(2) misrepresenting the number of people who pursued Heidemann out of the store; and
(3) misrepresenting that T.H. did not have an interest in the outcome of the case.
Heidemann did not object to the prosecutor’s closing arguments.
When prosecutorial misconduct is not objected to, this court applies a modified
plain-error test. State v. Wren, 738 N.W.2d 378, 389 (Minn. 2007). Under this test, the
appellant must show that an error occurred and that it was plain. State v. Ramey, 721
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N.W.2d 294, 302 (Minn. 2006). To be plain, an error generally “contravenes case law, a
rule, or a standard of conduct” and must be clear or obvious. Id. If the appellant
demonstrates a plain error, the burden shifts to the state to show that the error did not affect
the appellant’s substantial rights by showing “that there is no reasonable likelihood that the
absence of the misconduct in question would have had a significant effect on the verdict of
the jury.” Id. (quotations omitted). If the reviewing court determines that a plain error
affected the defendant’s substantial rights, it “then assesses whether the error should be
addressed to ensure fairness and the integrity of the judicial proceedings.” Id.
We consider each of Heidemann’s arguments for plain error. First, Heidemann
argues that the prosecutor misstated evidence by saying Heidemann “fled” and “ran” from
Wal-Mart because Heidemann walked out of Wal-Mart. The supreme court has held that
intentionally misstating evidence constitutes misconduct. State v. Mayhorn, 720 N.W.2d
776, 788 (Minn. 2006). But “closing arguments must be proper, not perfect.” State v.
Atkins, 543 N.W.2d 642, 648 (Minn. 1996)
The prosecutor’s use of the word “flee” is supported by the record. T.H. asked
Heidemann to talk to her, Heidemann said no, got into his car, and drove away. Black’s
Law Dictionary defines “flight” as “the act or an instance of fleeing, esp. to evade arrest or
prosecution.” 714 (9th ed. 2009). Here, the definition includes the act of evading someone,
especially to avoid arrest or prosecution. Because it is fair to argue that Heidemann evaded
T.H. when he left, the prosecutor did not err.
The same is true for the prosecutor’s use of the term “run.” T.H. testified that when
she called the Fairbault Police Department, she stated “that I had a shoplifter that was
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running.” After Heidemann left in his car, T.H. considered him to be running. Two
definitions of “run” are applicable: “to retreat rapidly; flee”; and “to go when in trouble or
distress.” The American Heritage College Dictionary 1215 (4th ed. 2007). Because
describing Heidemann as running is an argument that he left when in trouble, the prosecutor
did not misstate the evidence and there is no error. It is also notable that during the rest of
the closing argument, the prosecutor stated that Heidemann “begin[s] to leave,” “gets in
his car and leaves,” and “left” on several occasions. See State v. Johnson, 616 N.W.2d 720,
728 (Minn. 2000) (“[w]ith respect to claims of prosecutorial misconduct arising out of
closing argument, we consider the closing argument as a whole rather than focus on
particular phrases or remarks that may be taken out of context or given undue prominence.”
(quotation omitted)). In summary, because describing Heidemann as fleeing or running is
an argument that he left to evade prosecution or trouble, the prosecutor did not misstate
evidence, and appellant has failed to show error.
Second, Heidemann asserts that the prosecutor’s use of the term “they” misstated
evidence, because only T.H. pursued him. In closing, the prosecutor argued, “You can very
reasonably . . . assume that Wal[][m]art did not give [Heidemann] permission [to take the
Abreva]. Why? Because they chased after him and he fled.” But it is reasonable for the
prosecutor to use the term “they” collectively, to refer to Wal-Mart. This usage may not be
articulate, but arguments that are “unartful” do not necessarily rise to the level of
misconduct. Atkins, 543 N.W.2d at 648. Further, during the rest of the closing argument,
the prosecutor indicated that T.H. followed Heidemann out of the store. Because the
prosecutor did not misstate evidence, there is no error.
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Third, Heidemann argues that the prosecutor misstated evidence when he stated that
T.H. was not biased. In closing argument the prosecutor stated, “I don’t have an interest in
the outcome of this case because I’m paid to be here. That’s my job. So she’s paid to be
here by Walmart. That doesn’t mean she has an interest in the case.” The supreme court
has stated that “prosecutor[s] [have] a right to analyze the evidence and vigorously argue
that the state’s witnesses [are] worthy of credibility.” State v. Googins, 255 N.W.2d 805,
806 (Minn. 1977). Because it is appropriate for a prosecutor to argue witness credibility,
the prosecutor’s statements during closing were not error.
Because appellant failed to show plain error, we need not consider the other prongs
of the modified plain-error test. After carefully considering the prosecutor’s statements
during closing argument, we conclude that appellant has failed to establish plain error and,
therefore, there was no misconduct.
Affirmed.
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