This opinion will be unpublished and

may not be cited except as provided by

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






State of Minnesota,


John William Mattila,


Filed July 15, 2003


Minge, Judge


St. Louis County District Court

File No. K000600997


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


Alan L. Mitchell, St. Louis County Attorney, St. Louis County Attorney’s Office, 100 North Fifth Avenue West, Room 501, Duluth, MN 55802-1298 (for respondent)


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


            Considered and decided by Toussaint, Presiding Judge, Harten, Judge, and Minge, Judge.

U N P U B L I S H E D  O P I N I O N


MINGE, Judge

            Appellant challenges his conviction of theft by swindle on the grounds that the evidence was not sufficient to support the verdict and his requested jury instruction on intent was not given.  Because there was sufficient evidence to support the verdict, and because the district court did not abuse its discretion in fashioning the jury instructions, we affirm. 



In September 2000, appellant John Mattila agreed to sell his bounty-hunting business and an automobile to Mark Fairchild.  Fairchild gave Mattila a check for $12,600 to complete the sale.  The check was drawn on an account that not only had no funds, but had been closed.  After several failed attempts to deposit, cash, or have Fairchild make good on the check, Mattila again took the check to his bank.  It was late afternoon; Mattila was waited on by a somewhat inexperienced teller and was allowed to deposit the check to Mattila in his account.  The next morning, the same teller at his bank issued a $5,500 cashier’s check to Mattila and allowed him to withdraw $1,500 cash in reliance on the Fairchild check.  After Mattila failed to refund the money to the bank, the state charged Mattila with one count of theft by swindle in violation of Minn. Stat. § 609.52, subd. 2(4) (2000). 

The jury convicted appellant.  Following the verdict, the district court granted Mattila’s motion for judgment of acquittal notwithstanding the verdict, finding that “a necessary element of an actual swindle is not supported by the evidence.”  The state appealed.  This court reversed and remanded for sentencing.  State v. Mattila, No. C1-01-2242 (Minn. App. Oct. 22, 2002). 

The district court then entered judgment on the verdict and sentenced Mattila.  Mattila now appeals challenging the sufficiency of the evidence and the jury instructions.



We first consider whether the evidence is sufficient to support the conviction.  Mattila argues that the evidence is not sufficient to support his conviction because the evidence does not show that he had an intent to swindle. 

In considering a claim of insufficient evidence, appellate review “is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in a 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).  “We 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 that the defendant was guilty of the charged offense.  State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).  This court 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 person commits theft by swindle if “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).  The Minnesota Supreme Court has commented:

The statute was intended to reach cheats and swindlers of all kinds and descriptions. * * * Although varying techniques may be employed, the gist of the offense is the cheating and defrauding of another * * * .

State v. Ruffin, 280 Minn. 126, 130, 158 N.W.2d 202, 205 (1968) (quoting State v. Wells, 265 Minn. 212, 214, 121 N.W.2d 68, 69 (1963)).  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.”  Ruffin, 280 Minn. at 130, 158 N.W.2d at 205 (citation omitted).  “Theft by swindle requires the intent to defraud.”  State v. Saybolt, 461 N.W.2d 729, 735 (Minn. App. 1990) (citation omitted), review denied (Minn. Dec. 17, 1990).  The “essence of a swindle is defrauding another person by an intentional misrepresentation or scheme.”  State v. Flicek, 657 N.W.2d 592, 598 (Minn. App. 2003).  Swindling “requires a showing of affirmative fraudulent or deceitful behavior.”  Id.   

            Here, the evidence viewed in the light most favorable to the conviction shows that on September 22, 2000, Mattila was told by four financial institution employees that the check was not good.  Initially Mattila went to his own bank, which refused to even accept the check for deposit and told him that the credit union where Fairchild had his account had reported that Fairchild did not have a balance sufficient to cover the check.  Next, Mattila went to Fairchild’s credit union where two employees told Mattila that Fairchild’s account had been closed.  Later that same day, an officer of Fairchild’s credit union told Fairchild, in Mattila’s presence, that his account was closed, despite Fairchild’s contention that he had made a night deposit.  After that encounter, Fairchild told Mattila that he could not make the check good and asked for the check back; Mattila refused to return the check.  Fairchild testified that he told Mattila “not to deposit or cash my check.  I told him I would get this cleared up and get him a cashier’s check or cash for the $12,600.”  The evidence also shows that Mattila returned to Fairchild’s worksite on September 26, 2000 or September 27, 2000 (at least one day after Mattila deposited the check at his own bank) and wanted to know when Fairchild was going to make the check good.  In sum, the evidence, when viewed in the light most favorable to the conviction, supports the determination that Mattila deposited and drew on a check from an account that he knew was closed and that his behavior was fraudulent or deceitful.  Accordingly, the evidence is sufficient to support the conviction. 


Next we consider Mattila’s argument that the district court abused its discretion by not reading CRIM JIGs 16.01 and 16.02, as proposed by Mattila. 

District courts are allowed considerable latitude in the selection of language for jury instructions.  Alholm v. Wilt, 394 N.W.2d 488, 490 (Minn. 1986).  “[J]ury instructions must be viewed in their entirety to determine whether they fairly and adequately explain[] the law of the case.”  State v. Flores, 418 N.W.2d 150, 155 (Minn. 1988) (citation omitted).  An instruction is in error if it materially misstates the law.  State v. Pendleton, 567 N.W.2d 265, 268 (Minn. 1997). 

The district court does not have to give a party’s proposed jury instruction if it determines that the substance of the party’s request is already contained in the court’s charge.  Saybolt, 461 N.W.2d at 735.  The focus of the analysis is on whether the refusal resulted in error.  State v. Kuhnau, 622 N.W.2d 552, 555 (Minn. 2001). 

Mattila requested that the court read CRIM JIGs 16.01 and 16.02.  Mattila’s challenge to the district court’s refusal to read those instructions focuses on the second element of CRIM JIG 16.02.  That part of the jury instruction states:

Second, the defendant intentionally (took) (used) (transferred) (concealed) (retained) the _________.  This means that the defendant (took) (used) (transferred) (concealed) (retained) the _________ on purpose, and that the defendant knew or believed that it was the property of another person.  [“Intentionally” means that the actor either has a purpose to do the thing or cause the result specified or believes that the act performed by the actor, if successful, will cause that result.]

10 Minnesota Practice, CRIMJIG 16.02 (1999).  Mattila essentially argues that because the above instruction was not read to the jury, the jury was not instructed that he had to know or believe that what he was taking (the money) belonged to another person.  But the district court instructed the jury:

A swindle has not been committed if the Defendant honestly believed that the check had sufficient funds when he presented it on or about September 25th of this past year, 2000.

The substance of Mattila’s request was contained in the district court’s instruction.  See Saybolt, 461 N.W.2d at 735 (noting that the trial court does not have to give a party’s proposed jury instruction if it determines that the substance of the party’s request is already contained in the court’s charge).  Accordingly, the district court did not abuse its discretion by refusing to read Mattila’s proposed instruction.