This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. 480A.08, subd. 3 (2002).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C6-02-397

 

 

State of Minnesota,

Respondent,

 

vs.

 

Melvin Charles Klindt,

Appellant.

 

 

Filed April 8, 2003

Affirmed in part and reversed in part

Robert H. Schumacher, Judge

 

Wilkin County District Court

File No. K5982222

 

 

Mike Hatch, Attorney General, Thomas R. Ragatz, Sheila M. Fitzgerald Steichen, Assistant Attorneys General, 525 Park Street, Suite 500, St. Paul, MN 55103; and

 

Timothy E. J. Fox, Wilkin County Attorney, Post Office Box 214, Breckenridge, MN 56520 (for respondent)

 

John M. Stuart, State Public Defender, Lawrence W. Pry, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)

 

 

Considered and decided by Schumacher, Presiding Judge, Willis, Judge, and Anderson, Judge.


U N P U B L I S H E D O P I N I O N

ROBERT H. SCHUMACHER, Judge

Appellant Melvin Charles Klindt appeals his convictions of theft by swindle and theft by false representations. Klindt claims that he was improperly convicted and sentenced for two crimes that arose from one behavioral incident, that there was insufficient evidence to support his convictions, and that the district court incorrectly calculated the restitution award. We affirm in part and reverse in part vacating the theft by false representation sentence.

FACTS

Eugene Payne is a semi-retired farmer from DeGraff, Minnesota. He attended a series of meetings sponsored by Business Builders International at which there were discussions about investment opportunities that utilized offshore bank accounts to generate high returns. Payne introduced himself to Klindt at one of these meetings, and they talked about investments.

At one point, Payne and his wife drove to Klindt's home in Breckenridge to discuss investments. Klindt told Payne that he could double Payne's money in 45 days by trading bank debentures. Thereafter, Payne gave Klindt $500,000 to invest and received in return a promissory note, due in 45 days.

Payne called Klindt several times thereafter to check on the investment. Klindt informed Payne of another investment opportunity during one of those conversations. The new investment would be "similar to the first one" and required a minimum investment of $100,000. Payne was able to pool together $100,000 through family members and gave it to Klindt, receiving in return a promissory note due in 90 days. Klindt invested the $500,000 per his agreement with Payne with Citibank in London, which yielded two payments of $30,000. None of the $60,000 was ever paid to Payne. Klindt did not invest the second investment of $100,000 but converted it to his own personal use.

Klindt was convicted by a jury of theft by false representation and theft by swindle. He was sentenced concurrently to 21 months on the theft by false representations charge and 27 months on the theft by swindle charge. The sentences were stayed, and Klindt was placed on 20 years probation and ordered to pay the victim $160,000 in restitution.

D E C I S I O N

1. Klindt claims that one of the convictions must be vacated because the convictions arose out of one behavioral incident. See Minn. Stat. 609.035, subd. 1 (2000). We agree, as does the state. Accordingly, we vacate the sentence of theft by false representation conviction.

2. Klindt also claims the evidence was insufficient to convict him. As such, 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, is 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 "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).

Theft by swindle is obtaining the property of another through "artifice, trick, device, or any other means." Minn. Stat. 609.52, subd. 2 (4) (1998). This section "punishes any fraudulent scheme, trick, or device whereby the wrongdoer deprives victim of his money or property by deceit or betrayal of confidence," and no single definition can cover the range of possibilities for the offense. State v. Ruffin, 280 Minn. 126, 129, 158 N.W.2d 202, 205 (1968). "The fact that a transaction has the semblance of a legitimate business contract [does] not prevent it from constituting a swindle." State v. Wells, 265 Minn. 212, 214, 121 N.W.2d 68, 69 (1963).

There was sufficient evidence to support a jury finding that Klindt obtained Payne's money through swindle. Payne testified that Klindt told him the $100,000 would be put into an investment account. This did not happen. The $100,000 was reissued in various money orders for Klindt to purchase automobiles, pay off his son's loan, and pay off a law firm in Detroit with no connection to the investments Klindt agreed to make. Klindt also took some of the money as cash.

There was testimony that Klindt received a $60,000 return from the $500,000 investment, but Payne never received any of the money. Payne testified that Klindt said he would not take any compensation resulting from the $500,000 investment until Payne had doubled his money.

3. Klindt claims that the district court incorrectly calculated the restitution of $160,000. To determine restitution, the district court must consider the victim's economic loss because of the offense, and the defendant's income, resources, and obligations. Minn. Stat. 611A.045, subd. 1 (1998). When the record provides a factual basis for losses resulting from the offense, district courts are given broad discretion in awarding restitution. State v. Tenerelli, 598 N.W.2d 668, 671 (Minn. 1999).

The district court ordered restitution to Payne in the amount of $160,000. This amount included Payne's $100,000 investment that was converted by Klindt and $60,000 for the two payments that Klindt received from Payne's original $500,000 investment. Klindt kept the $60,000, contrary to his agreement with Payne. It was within the district court's discretion to order the restitution that it did.

Affirmed in part and reversed in part.