This opinion will be unpublished and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

CX-02-550

 

 

State of Minnesota,

Respondent,

 

vs.

 

Philip J. Delgrosso,

Appellant.

 

 

Filed April 22, 2003

Affirmed

Halbrooks, Judge

 

 

Hennepin County District Court

File No. 01039181

 

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

 

Amy Klobuchar, Hennepin County Attorney, Thomas A. Weist, Assistant County Attorney, C-2000 Government Center, 300 South 6th Street, Minneapolis, MN 55487  (for respondent)

 

John M. Stuart, State Public Defender, Michael C. Davis, Special Assistant Public Defender, 1042 Minnesota Building, 46 East 4th Street, St. Paul, MN 55101 (for appellant)

 

 

 

            Considered and decided by Harten, Presiding Judge, Peterson, Judge, and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N

HALBROOKS, Judge

          Appellant contends that the evidence was insufficient to support the jury’s findings of guilt for theft by swindle, theft by false representation, and theft by diversion of corporate property.  Appellant also argues that the trial court improperly ordered restitution for legal expenses incurred by the victim in protecting himself from loss.  Because the evidence was sufficient to prove theft and the attorney fees spent by the victim to freeze funds allegedly stolen were a direct consequence of appellant’s wrongdoing, we affirm.

FACTS

In the fall of 2000, Robert Wohlfeld, an entrepreneur and personal-injury lawyer, hired appellant Phillip Delgrosso, an old friend, to manage Fast Cash, Inc., a loan company that Wohlfeld and his former secretary Jeannette Couf planned to open.  The job entailed Delgrosso’s move from Florida to Minnesota.  Wohlfeld agreed to give appellant a salary of $40,000, the use of a car, and an apartment in Minneapolis.  The loan company was to target clients of Couf’s chiropractic clinics who needed money to pay for chiropractic services and who had potential tort claims that could be used for collateral on a loan.  Wohlfeld owned 950 shares of Fast Cash stock and Couf owned the remaining 50 shares.

            At Wohlfeld’s direction, Delgrosso filed articles of incorporation for Fast Cash, Inc., and opened a corporate bank account with a $60,000 deposit.  When opening the account, Delgrosso falsely identified himself as the president of Fast Cash and made his signature the only authorized signature on the account.  In fact, Couf was the company president and Delgrosso’s title was “manager.”  Both Couf and Delgrosso were supposed to have check-signing authority.

            On April 23, 2001, Delgrosso purchased a $45,000 cashier’s check, payable to himself, with Fast Cash funds.  The next day, Delgrosso negotiated that cashier’s check and obtained two cashier’s checks, again made payable to himself, in the amounts of $40,000 and $5,000.  Two days later, Delgrosso completed the application to open a trading account with Datek Online and deposited the $40,000 cashier’s check into the account.  Delgrosso also returned his keys to the apartment managers, informed them that he was moving, and provided a forwarding address in Tennessee.

            By April 27, Wohlfeld and Couf knew that the Fast Cash account had been depleted and notified the police of the theft.  As part of the investigation, the police placed a temporary hold on Delgrosso’s Datek account.  Attorneys representing Fast Cash in a civil action obtained a later court order, freezing those funds.

            Delgrosso was convicted by a jury of theft by swindle over $35,000, theft by false representation over $35,000, and theft of corporate assets over $35,000.  The trial court stayed imposition of sentence on count one, theft by false representation.[1]  Delgrosso was (1) ordered to serve 106 days in jail with credit for 106 days served; (2) placed on 10 years’ probation; and (3) ordered to pay $45,000 in restitution.  Following a restitution hearing, the trial court ordered Delgrosso to pay an additional $3,616 for attorney fees incurred in the civil action to freeze Fast Cash’s funds.  This appeal follows.

D E C I S I O N

I.

 

            Appellant contends that the evidence before the court was insufficient to support the convictions.  In considering a sufficiency-of-the-evidence claim, 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 the verdict that they did.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  It is the exclusive role of the jury to determine the weight and credibility of witness testimony.  State v. Folkers, 581 N.W.2d 321, 327 (Minn. 1998).  Where the resolution of a case rests on conflicting testimony, particular deference is given to the jury because weighing credibility is their function alone.  State v. Pieschke, 295 N.W.2d 580, 584 (Minn. 1980).

Moreover, this court must assume that the jury believed the state’s witnesses and disbelieved any evidence to the contrary.  State v. Bergeron, 452 N.W.2d 918, 924 (Minn. 1990).  This 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 have reasonably concluded that the defendant was guilty of the charged offense.  State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).  We must decide “whether a jury could reasonably find the defendant guilty, given the facts in evidence and the legitimate inferences which could be drawn from those facts.”  State v. Robinson, 604 N.W.2d 355, 366 (Minn. 2000) (quotation omitted).

A.        Theft or Diversion of Corporate Property

            Delgrosso argues that the state failed to prove beyond a reasonable doubt each element of theft of corporate property, specifically alleging that the state failed to prove that he had the requisite intent to defraud.  Minn. Stat. § 609.52, subd. 2(15) (2000), states that a person commits theft who

with intent to defraud, diverts corporate property other than in accordance with general business purposes or for purposes other than those specified in the corporation’s articles of incorporation.

 

            Here, the evidence was undisputed that Delgrosso removed money from the Fast Cash account and placed it in his personal account.  Both Couf and Wohlfeld testified that Delgrosso was not authorized to take the money.  Delgrosso testified that the parties had agreed that, if Fast Cash was not up and running after six months, he was entitled to any asset in the business account.  But Craig Waltzer, the accountant for Fast Cash, also testified about Delgrosso’s compensation.  Waltzer’s testimony did not corroborate Delgrosso’s version of the agreement.  Because evidence was sufficient to allow the jury to reasonably reach the conclusion that Delgrosso diverted Fast Cash’s corporate property, we affirm the jury’s conclusion that Delgrosso diverted the property other than in accordance with general business purposes and with the intent to defraud.  See Pieschke, 295 N.W.2d at 584 (stating that deference is given to the jury when resolution of a case rests on conflicting testimony because weighing credibility is their function alone).

B.        Theft by Swindle

            Delgrosso asserts that no swindle occurred because the elements of a swindle must be present at the moment the swindle is completed.  According to Delgrosso, any “swindle” that occurred must have taken place at the bank teller’s window on April 23, 2001, when he purchased a $45,000 cashier’s check, payable to himself, with Fast Cash funds.  We disagree.

A person commits theft if “by swindling, whether by artifice, trick, device, or any other means, [the person] obtains property or services from another person.”  Minn. Stat. § 609.52, subd. 2(4) (2000).  Because the purpose of the statute is to prohibit an unwanted form of conduct, “[n]o single definition can cover the range of possibilities for the offense.”  State v. Ruffin, 280 Minn. 126, 130, 158 N.W.2d 202, 205 (1968) (citation omitted).

Delgrosso offers no support for his argument that the swindle must have occurred at the bank window.  Although criminal intent must be contemporaneous with the act of taking, here, the victim was not the bank, but Wohlfeld.  See State v. Belfry, 353 N.W.2d 224, 226 (Minn. App. 1984) (finding that court’s failure to instruct that criminal intent must be contemporaneous with act of taking was harmless error where court instructed jury on all elements of swindle and attorneys stressed in closing argument the necessity of relating intent to moment that defendant took money), review denied (Minn. Oct. 30, 1984).

Moreover, sufficiency of the evidence claims have been upheld in cases similar to this one.  See, e.g., State v. Kirsch, 338 N.W.2d 45, 46 (Minn. 1983) (upholding jury verdict of theft by swindle by assistant taking money from company checking account and lying about reason for taking money); State v. Chase, 323 N.W.2d 784, 785 (Minn. 1982) (upholding jury verdict of theft by swindle where limousine driver removed company receipts from money bags); State v. Garceau, 370 N.W.2d 34, 37 (Minn. App. 1985) (upholding jury verdict of theft by swindle by clerk who appropriated for her own use more than $2,500 in company deposits), review denied (Minn. Sept. 13, 1985).

            The jury heard instructions from the trial court on the elements of theft by swindle, including an instruction that Delgrosso must have acted intentionally for the purpose of obtaining possession of the $45,000.  The jury also heard evidence that Delgrosso deliberately defrauded Wohlfeld by falsely gaining his confidence by insisting that Wohlfeld review every expenditure and initial every check stub, while otherwise conducting business so that Delgrosso’s signature was the sole authorized signature on the Fast Cash account, and ultimately, draining the account of its funds.  Giving due deference to the jury, the evidence was sufficient for the jury to conclude that Delgrosso deliberately defrauded Wohlfeld.

C.        Theft by False Representation

            Delgrosso further contends that he did nothing that would have caused the bank to issue the cashier’s check, other than to have requested it.  He also argues that the fact that he had falsely represented to the bank that he was the company president at the time he opened the account was immaterial.  Minn. Stat. § 609.52, subd. 2(3) (2000), states that theft occurs when a person obtains property

by intentionally deceiving the third person with false representation which is known to be false, made with intent to defraud, and which does defraud the person to whom it is made.

 

“False representation” includes

(i)The issuance of a check, draft or order for the payment of money * * * or the delivery of property knowing that the actor is not entitled to draw upon the drawee therefor or to order the payment or delivery thereof.

 

Id., subd. 2(3)(i).

The jury heard testimony that Delgrosso intentionally set up the account to require only his signature on checks as opposed to dual signatures with Couf.  As a result, the jury had sufficient evidence to conclude that Delgrosso received funds to which he had no entitlement.

II.

            Delgrosso argues that the trial court erred in ordering restitution for Wohlfeld’s attorney fees arising out of the civil proceeding to freeze Fast Cash’s funds.  “[T]rial courts are given broad discretion in awarding restitution.”  State v. Tenerelli, 598 N.W.2d 668, 671 (Minn. 1999).  The purpose of restitution is to restore the victim to his original condition.  In re Welfare of J.A.D., 603 N.W.2d 844, 846 (Minn. App. 1999).  Under Minn. Stat. § 611A.04, subd. 1(a) (2000), “[a] request for restitution may include, but is not limited to, any out-of-pocket losses resulting from the crime.”  But deciding whether the statutory definition for restitution is applicable to a particular item is a question of law.  In re Welfare of D.D.G., 532 N.W.2d 279, 280-81 (Minn. App. 1995), review denied (Minn. Aug. 30, 1995).

            Restitution is proper only where the victim’s losses are directly caused by the defendant’s conduct.  State v. Latimer, 604 N.W.2d 103, 105 (Minn. App. 1999).  In determining “direct cause” for the purpose of awarding restitution, this court has upheld an award of restitution to cover the reward paid by a school to a person who aided the school’s investigation of a threat.  D.D.G., 532 N.W.2d at 282-83.  Although the school was under no obligation to pay a reward, the restitution was granted because “the reward offer would not have occurred but for appellant’s conduct.”  Id. at 283.

Delgrosso contends that attorney fees from the civil litigation are not a direct consequence of his conduct because the police had already frozen the funds in Delgrosso’s Datek account.  But at the restitution hearing, the prosecutor explained that, although the officer initially obtained a temporary freeze of the funds,

[she] did not have sufficient proof to establish the ownership of the funds to take the extraordinary measures under the criminal attachment statutes to attach that money.

 

            In D.D.G., the school lacked knowledge of whether the threat to the school was real or a hoax, so the decision to move forward with the offer of a reward was made.  Id. at 282.  Similarly, here, Wohlfeld lacked knowledge as to whether Delgrosso would abscond with the funds during the pendency of the case, and, therefore, felt obligated to take additional legal action.  Because the trial court has broad discretion in ordering restitution and because Minnesota courts have ordered restitution for reasonable out-of-pocket losses incurred by a victim to protect his interests in respect to a crime, the award of restitution was proper.

III.

In his supplemental pro se brief, Delgrosso argues that the trial court erred in some of its evidentiary rulings.

When an appellant acts as attorney pro se, appellate courts are disposed to disregard defects in the brief, but that does not relieve appellants of the necessity of providing an adequate record * * *.

 

Thorp Loan & Thrift Co. v. Morse, 451 N.W.2d 361, 363 (Minn. App. 1990), review denied (Minn. Apr. 13, 1990)  Here, Delgrosso has had legal representation throughout his trial and appeal.  On a pro se, supplemental, basis he makes several claims without identifying the specific evidentiary rulings that he is challenging or establishing that the rulings, if not previously challenged, were plain error.

Appellate courts largely defer to the trial court’s evidentiary rulings, which will not be overturned absent a clear abuse of discretion.  State v. Kelly, 435 N.W.2d 807, 813 (Minn. 1989).  Delgrosso has the burden of proving both that the trial court abused its discretion in admitting or denying admission of evidence and that the court’s decisions prejudiced appellant.  See State v. Steinbuch, 514 N.W.2d 793, 799 (Minn. 1994) (stating that defendant claiming error in the reception of evidence has dual burden).  Reversal is warranted only when the error substantially influenced the jury’s decision.  Id.  Appellant provides no showing that any specific rulings had an impact on the jury’s decision, and we see no evidence that the court abused its discretion.[2]

Affirmed.

 



[1][T]he proper procedure to be followed by the trial court when the defendant is convicted on more than one charge for the same act is for the court to adjudicate formally and impose sentence on one count only.  The remaining conviction(s) should not be formally adjudicated at that time.

 

State v. French, 400 N.W.2d 111, 114 (Minn. App. 1987).

 

[2] Appellant also claims that the trial court erred by failing to provide appellant access to the Sport Fit checking account.  But the record reflects that Couf produced the company’s checks to which both parties had access.