This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Juan Raul Mora,
Filed May 1, 2001
Clay County District Court
File No. K3-98-2292
Mike Hatch, Minnesota Attorney General, Robert A. Stanich, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, Minnesota 55103; and
Lisa Borgen, Clay County Attorney, Courthouse, Post Office Box 280, Moorhead, Minnesota 56561 (for respondent)
John M. Stuart, Minnesota State Public Defender, Sharon E. Jacks, Assistant State Public Defender, Suite 600, 2829 University Avenue Southeast, Minneapolis, Minnesota 55414 (for appellant)
Considered and decided by Harten, Presiding Judge, Crippen, Judge, and Hanson, Judge.
Appellant Juan Mora was charged with wrongfully obtaining public assistance due to his failure to report income earned from two drug sales. The jury found him guilty of receiving excess assistance in an amount over $500, a felony. Mora challenges his conviction, arguing that the evidence was insufficient to prove excess assistance over $500 because the state proved only his gross, not net income, and that the trial court abused its discretion in failing to instruct the jury that the calculation of excess assistance must consider net, not gross, income. We reverse and remand.
Appellant Juan Mora admits that he sold cocaine to an undercover police officer on September 16, 1998, for $260, and on October 20, 1998, for $300. Mora pleaded guilty to these two offenses. At the time of these sales, Mora and his wife were receiving pubic assistance from the Minnesota Family Investment Program (MFIP). Maria Castillo, an intern who arranged for Mora to receive public assistance, testified that she explained to Mora that he had to report any additional income he received from all sources. Mora signed the application, which indicated that he understood his rights and responsibilities as an MFIP recipient. However, Mora admits that he did not report the income he received from the cocaine sales. As a result, in the months of November and December of 1998, he received more benefit payments than he was entitled to.
Mora was charged with wrongfully obtaining public assistance between November 1 and December 31, 1998, pursuant to Minn. Stat. §§ 256.98, subd. 1, 609.52, subd. 3(3)(a) (1998). Under section 609.52, subd. 3(3)(a), the crime is a felony if the excess assistance is over $500 and, thus, the amount of excess assistance became the central issue at trial.
Rosalinda Sanchez, a Clay County Social Services caseworker, testified that had Mora reported his earnings from his cocaine sales, his benefits would have been reduced dollar for dollar; i.e. $260 would have been deducted from his November benefits and $300 from his December benefits. Deputy Charles Anderson also testified that while searching Mora’s home, police found $700 in cash in a closet, which was not the marked bills the agent had used to pay for the cocaine.
Mora also testified. He claimed that the $700 in cash belonged to his wife and was money received from a renter’s rebate. He further claimed that his drug supplier had fronted him the drugs, with the title to his car serving as security, and that he paid for the drugs after the sale, netting income of only $140. Mora did admit, on cross-examination, that he had made other drug sales, but there was no evidence of the number of sales or the amount of income received, or that the sales were within the time period charged.
The jury found Mora guilty of receiving excess public assistance in an amount over $500. On February 28, 1999, Mora was sentenced to a 21-month prison term. Mora appeals his conviction.
D E C I S I O N
Mora claims that there was insufficient evidence to support the jury’s conclusion that he received more than $500 in excess public assistance payments. A challenge to the sufficiency of the evidence requires this court to determine whether, in light of the facts in the record and the inferences that can be drawn from those facts, a reasonable jury could have concluded that the defendant was guilty of the charged offense. State v. Bias, 419 N.W.2d 480, 484 (Minn. 1988). “If the jury, giving due regard to the presumption of innocence and to the state's burden of proof beyond a reasonable doubt, could reasonably have found the defendant guilty, the verdict will not be disturbed.” State v. Pierson, 530 N.W.2d 784, 787 (Minn. 1995) (citation omitted). In addition, this court must view the evidence in the light most favorable to the state's case and must assume that the jury believed the state's witnesses and disbelieved any contrary evidence. State v. Drieman, 457 N.W.2d 703, 711 (Minn. 1990). Issues of credibility and weight of the evidence are for the jury to decide. Bias, 419 N.W.2d at 484.
Mora does not challenge that money received from the sale of cocaine is “unearned income” that should be reported. See Minn. Stat. § 256J.08, subds. 26 (stating that for income to be “earned” it must result from legal activity), 86 (1998) (stating that unearned income is any income received that does not fit the definition of “earned income”). Nor does Mora deny that he received $560 from an undercover police officer for two sales of cocaine. However, Mora contends that because he had to pay his supplier and informant, his reportable unearned income was only $140. Mora claims that these are expenses that must be deducted from the $560 before determining the “unearned income.” See Minn. Stat. § 256J.37, subd. 9(a) (1998) (“[w]hen determining the amount of unearned income, the county agency must deduct the costs necessary to secure payments of unearned income”). The state contends that, pursuant to Minn. Stat. § 256J.21, subd. 4(d) (1998), the county would have deducted the $560 he received from the cocaine sales “dollar for dollar.”
The state’s reliance on section 256J.21, subdivision 4(d), is misplaced. Section 256J.37, subdivision 9(a), establishes how to determine unearned income, whereas section 256J.21, subdivision 4(d) instructs on how to determine the public assistance payment based on the unearned income. See Minn. Stat. § 256J.37, subd. 9(a) (stating that in “determining the amount of unearned income” the county must deduct the costs incurred in securing the unearned income); Minn. Stat. § 256J.21, subd. 4(d) (providing that in determining how much assistance benefits a person is entitled to, the unearned income must be deducted dollar for dollar).
Our focus is not whether Mora’s testimony of his expenses must be believed and, thus, defeats the state’s proof. The jury was not obligated to believe Mora’s testimony if they found him not to be a credible witness. State v. Hough, 585 N.W.2d 393, 396 (Minn. 1998). Our focus, instead, is whether the state can meet its burden of proof by presenting only evidence of gross income. We conclude that it cannot.
The state argues that the evidence was sufficient to convict Mora of receiving public assistance in excess of $500 because Mora did not provide independent proof of his claimed expenses, and absent that proof, the jury was not required to believe his testimony. See State v. Johnson, 568 N.W.2d 426, 435 (Minn. 1997) (stating that judging credibility of witnesses and the weight given to their testimony rests within the province of the fact-finder). However, “[d]ue process does not permit the state to place on a defendant the burden of disproving an element of the crime with which [h]e is charged.” State v. Hage, 595 N.W.2d 200, 204 (Minn. 1999) (citation omitted). To convict Mora of the crime charged, the state had to show that while receiving public assistance, Mora concealed unearned income in excess of $500. See 10 Minnesota Practice CRIMJIG 16.69 (1999) (listing elements of receipt of excess public assistance). Because unearned income is net income, not gross, it requires proof either of what the expenses were or that there were no expenses. Mora does not have the burden of disproving the gross income or proving the expenses. See Hage, 595 N.W.2d 200, 204 (defendant does not have the burden to prove the crime charged).
Because of the insufficiency of the evidence to prove the felony charge of receiving excess assistance over $500, we reverse the felony conviction. However, the record, including Mora’s own admissions, proves that Mora committed the misdemeanor of receiving excess assistance of $250 or less under Minn. Stat. § 609.22, subd. 5 (1998). We reduce the conviction to the misdemeanor and remand for resentencing. Minn. R. Crim. P. 28.02, subd. 12. See also State v. Bergstrom, 413 N.W.2d 206, 211-12 (Minn. App. 1987).
Mora also claims that the trial court committed plain error in not instructing the jury on the proper method to calculate excess public assistance, including the need to deduct expenses in determining unearned income. Since we are reducing the conviction to the misdemeanor, the failure to give this instruction becomes moot and could not affect Mora’s substantial rights.
Reversed and remanded for resentencing consistent with this opinion.
 Income reported in September and October affects benefits paid in November and December, respectively.