This opinion will be unpublished and

may not be cited except as provided by

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







State of Minnesota,





John William Mattila,



Filed October 22, 2002

Reversed and remanded

Willis, Judge


St. Louis County District Court

File No. K000600997



Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN  55103; and


Alan L. Mitchell, St. Louis County Attorney, James T. Nephew, Assistant County Attorney, 100 N. 5th Avenue West, Room 501, Duluth, MN  55082-1298 (for appellant)


Mary M. McMahon, McMahon & Associates Criminal Defense, Ltd., 2499 Rice Street, Suite 140, Roseville, MN  55113-3724 (for respondent)


            Considered and decided by Minge, Presiding Judge, Willis, Judge, and Wright, Judge.

U N P U B L I S H E D   O P I N I O N


            The state challenges the district court’s grant of judgment of acquittal following a jury verdict finding respondent John William Mattila guilty of one count of theft by swindle.  We reverse and remand for sentencing.


            In September 2000, Mattila agreed to sell his bounty-hunting business and an automobile to Mark Fairchild.  On September 21, Fairchild gave Mattila a check for $12,600 to complete the sale.  The check was drawn on Fairchild’s account at the Hermantown Federal Credit Union (Hermantown Federal), but that institution had closed Fairchild’s checking account several days earlier.

            Mattila spent most of September 22 trying either to deposit or to cash Fairchild’s check at either his own bank, First National Bank of Proctor (First National), or Hermantown Federal.  Representatives of both institutions told Mattila at least three times on September 22 that Fairchild’s account was closed and that the check was worthless unless Fairchild made a deposit.  Later that day, Fairchild asked Mattila to return the check to him because he “could not make [the] check good.”  Mattila refused, saying, “It’s my money.”

            On September 25, Mattila again went to First National and presented Fairchild’s check for deposit.  This time he dealt with a teller different from the one who had helped him on September 22.  This teller had only about three months’ experience in banking;  without contacting Hermantown Federal, she accepted the check and deposited $12,600 in Mattila’s savings account.

            Mattila returned to First National on September 26 requesting from the same teller a withdrawal of $1,500 in cash and a $5,500 cashier’s check payable to him.  She was hesitant to give Mattila the money because less than 24 hours had passed since the September 25 deposit and the check had yet to clear.  But after a brief discussion with another teller, she processed Mattila’s request.

After Mattila left First National, the teller grew concerned and telephoned Hermantown Federal.  She learned that Fairchild’s account was closed; the teller and her coworkers then contacted other banks in the area to warn them against cashing the cashier’s check.  The incident also was reported to the police, but on or about September 27 Mattila cashed the cashier’s check.

            Mattila was arrested and charged with one count of theft by swindle, in violation of Minn. Stat. § 609.52, subd. 2(4) (2000).  A jury convicted Mattila, who then brought a motion for a judgment of acquittal notwithstanding the verdict.  The district court found that the offense of theft by swindle requires proof of ordinary prudence by the victim.  Because it concluded that the state had not provided such proof, the district court granted Mattila’s motion.  The state now appeals.


            Appellant State of Minnesota argues that the district court erroneously construed the theft-by-swindle statute to require proof of ordinary prudence on the part of the victim.  Whether a statute has been properly construed is a question of law subject to de novo review.  State v. Murphy, 545 N.W.2d 909, 914 (Minn. 1996).

            Anyone who “by swindling, whether by artifice, trick, device, or any other means, obtains property or services from another person” is guilty of theft.  Minn. Stat. § 609.52, subd. 2(4) (2000).  The jury instruction guide explains that “swindling” is

the cheating of another person by a deliberate artifice or scheme.  It is not necessary that [the victim] had a special confidence in the defendant.  A swindle can be accomplished by false representation as to either past or future facts.  A swindle may include a trick or a scheme consisting of mere words and action, and it does not require the use of some mechanical or other device.


10 Minnesota Practice, CRIMJIG 16.10 (1999).

Here, the district court gave the CRIMJIG 16.10 instruction on theft by swindle.  But after the verdict, the district court vacated Mattila’s conviction on the ground that, under State v. Cunningham, 257 Minn. 31, 99 N.W.2d 908 (1959), and State v. Hodge, 266 Minn. 193, 123 N.W.2d 323 (1963), theft by swindle also requires proof of “cheating against which common prudence does not ordinarily protect,” id. at 195, 123 N.W.2d at 325.

The district court reasoned that First National could have used ordinary prudence on September 25 and contacted Hermantown Federal about the status of Fairchild’s account before depositing the check presented by Mattila.  Because First National failed to do so, the district court concluded that the state had not proven any theft by swindle.

            But Cunningham and Hodge interpret Minn. Stat. § 614.11, the predecessor to section 609.52, subdivision 2(4).  In construing section 609.52, subdivision 2(4), the supreme court has explicitly rejected an ordinary-prudence test:

[T]he court [in State v. Ruffin, 280 Minn. 126, 130, 158 N.W.2d 202, 205 (1968),] seemed to reject the ordinary prudence test when it stated that “gullible people” as well as those with ordinary prudence should be protected by the statute.

An adoption of this change from prior interpretations of the swindling statute is justified.  The modern approach to theft focuses on protecting citizens in a comprehensive way from theft while letting the penalties be determined mostly by the amounts taken.  This eliminates the need to draw fine distinctions between swindling and other types of theft as had been done prior to 1963 [when the statute was revised] because of the possibility of a higher penalty for swindling.  * * *  [T]he statute punishes any fraudulent scheme, trick, or device whereby the wrongdoer deprives the victim of his money or property by deceit or betrayal of confidence.  No additional instruction on the victim’s prudence is required, and none should be given.


State v. Hanson, 285 N.W.2d 483, 486 (Minn. 1979) (quotation and citations omitted).  Because theft by swindle does not require proof of ordinary prudence by the victim, the district court erred in its construction of Minn. Stat. § 609.52, subd. 2(4).  We therefore reverse the district court’s grant of judgment of acquittal and remand for sentencing.

            In light of our decision, we need not address the state’s alternative argument that the evidence was sufficient to support the verdict of guilty even if the statute is construed to require evidence of ordinary prudence on the part of the victim.

            Reversed and remanded.