This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).






State of Minnesota,





Violet Mae Columbus,



Filed August 21, 2001

Affirmed in part, reversed in part

Harten, Judge


Redwood County District Court

File No. K8-99-385


Michelle A. Dietrich, Redwood County Attorney, P.O. Box 130, Redwood Falls, MN 56283; and


Mike Hatch, Attorney General, Sara J. DeSanto, Assistant Attorney General, 445 Minnesota Street, Suite 700, St. Paul, MN 55101-2131 (for respondent)


John M. Stuart, State Public Defender, Theodora K. Gaitas, Assistant State Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN 55414 (for appellant)


            Considered and decided by Lansing, Presiding Judge, Harten, Judge, and Willis, Judge.

U N P U B L I S H E D   O P I N I O N




            Appellant challenges her felony convictions of theft and financial exploitation of a vulnerable adult, arguing that the evidence was insufficient to support them.  Because the jury could reasonably have concluded that appellant was guilty of financial exploitation, we affirm that conviction, but we reverse the conviction for theft because as a matter of law appellant had a claim of right to the victim’s money.


            From September 1997 to February 1999, appellant Violet Columbus had power of attorney, including the right to make transfers to herself, for Elroy Jones, an elderly nursing home resident.  Jones’s income during this period was about $73,580; his nursing home expenses for the same period were about $28,365.  Appellant used Jones’s money to pay these expenses, although not in a timely manner; she generally made the payments one month late.  Appellant transferred to herself and spent the remainder, over $45,000.

In February 1999, Jones revoked appellant’s power of attorney and gave it to Robert Palmer.  Palmer found that, as of March 1, 1999, Jones would be more than $7,000 in arrears on his nursing home account and that there were no funds available to pay the balance due.  Palmer arranged with the nursing home to pay Jones’s delinquent account over several months and reported appellant’s handling of Jones’s finances to the Redwood County sheriff’s department.  Following an investigation, appellant was charged with financial exploitation of a vulnerable adult in an amount greater than $2,500 in violation of Minn. Stat. § 609.2335, subd. 1(1) (1996), and theft in an amount greater than $2,500 in violation of Minn. Stat. §  609.52, subd. 2(1) (1996).  A jury found her guilty on both counts and she was sentenced for financial exploitation of a vulnerable adult.[1]  The district court stayed imposition of sentence and appellant was placed on ten years’ probation with various conditions, including 90 days in jail, $20 monthly in restitution, 100 hours of community service, and a letter of apology to Jones.

            Appellant now contends that the evidence was insufficient to support her convictions.[2]


            In considering a claim of insufficient evidence, this court’s review is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, was sufficient to allow the jurors to reach their verdict.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  The reviewing court must assume that the jury believed the state’s witnesses and disbelieved any evidence to the contrary.  State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).  The reviewing court will not disturb the verdict if the jury, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude the defendant was guilty of the charged offense.  State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).

1.         Financial Exploitation of a Vulnerable Adult

            Minn. Stat. § 609.2335, subd. 1(1), provides that a person with a fiduciary obligation to a vulnerable adult who “intentionally fails to use the financial resources of the vulnerable adult to provide food, clothing, shelter, health care, therapeutic conduct, or supervision for the vulnerable adult” is guilty of financial exploitation.  Appellant’s fiduciary obligation to Jones was implicit in her power of attorney.  See Minn. Stat. § 532.21 (1996) (providing, among other things, that an attorney-in-fact “shall have the interests of the principal utmost in mind.”) 

            The issue becomes whether the jury could reasonably have concluded that appellant failed to use Jones’s financial resources to provide for his care.  Palmer testified that: (1) Jones’s monthly income was about $4,200; (2) when Palmer took over Jones’s finances, Jones had an outstanding bill of more than $7,000 at the nursing home due on March 1; (3) no funds were available to pay the delinquent $7,000, and (4) it took until July to pay off the $7,000.  We conclude that the jury reasonably could have found that, at least during appellant’s last few months as Jones’s attorney in fact, she violated the statute because she did not use financial resources to provide for his care.  Moreover, she depleted his resources so that no funds were available to pay for his care when payment was due.  Accordingly, we affirm appellant’s exploitation conviction.

2.         Theft

            Minn. Stat. § 609.52, subd. 2(1), provides that a person commits theft who “intentionally and without claim of right” (emphasis added) uses or retains the property of another.  Minn. Stat. § 523.23, subd. 1 (1996), the “short form” for power of attorney, provides, as an option that “[t]his power of attorney authorizes the attorney-in-fact to transfer my property to the attorney-in-fact.”  This option was checked on the form signed by Jones naming appellant as his attorney-in-fact.  We hold as a matter of law that a “claim of right” within the meaning of Minn. Stat. § 609.52, subd. 2(1), is conferred by authorizing an attorney-in-fact to transfer the principal’s property to the attorney-in-fact and that such authorization precludes a conviction for theft.  Thus, because appellant was authorized through the power of attorney to transfer Jones’s property to herself, she had a claim of right to it and cannot be guilty of its theft.  Therefore, the theft charge was improperly submitted to the jury.  We reverse the theft conviction and dismiss the theft charge as a matter of law.

            Affirmed in part and reversed in part.

[1] The district court did not say for which offense he was sentencing appellant, but the pre-sentence investigation report noted that the offenses were part of the same behavioral incident and that “[t]he first and most serious conviction of [Financial] Exploitation of a Vulnerable Adult is [the offense] to be considered within sentencing guideline rules.” 

[2] For the first time on appeal, appellant challenges the constitutionality of Minn. Stat. § 609.2335, subd. 1(1).  We do not address this issue because “[t]he law is clear in Minnesota that the constitutionality of a statute cannot be challenged for the first time on appeal.”  State v. Engholm, 290 N.W.2d 780, 784 (Minn. 1980) (citations omitted).