This opinion will be unpublished and

may not be cited except as provided by

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








State of Minnesota,





Robert Eugene Kesselring,




Filed April 27, 2004


Robert H. Schumacher, Judge


Martin County District Court

File No. K101643



Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and


Terry W. Viesselman, Martin County Attorney, Michael D. Trushenski, Assistant County Attorney, 923 North State Street, Suite 130, Fairmont, MN 56031 (for respondent)


Jason C. Kohlmeyer, Manahan, Bluth & Kohlmeyer Law Office, Chartered, 110 South Broad Street, Mankato, MN 56002-0287 (for appellant)



            Considered and decided by Wright, Presiding Judge; Schumacher, Judge; and Willis, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant Robert Eugene Kesselring challenges his conviction of theft by swindle under Minn. Stat. § 609.52, subd. 2(4), 3(2) (2000), arguing the evidence is insufficient to support his conviction.  We affirm.


            In July 2000, Rex Nelson and Kesselring entered into negotiations regarding a sweet-corn harvester owned by Nelson.  Because Nelson resided in Nebraska, the negotiations were conducted over the telephone.  The parties eventually agreed Kesselring would purchase the harvester for $11,500. 

In August 2000, Nelson shipped the harvester to Kesselring through a third party.  Kesselring wrote the third party a $1,000 check for the delivery costs.  But shortly after the delivery, Kesselring stopped payment on the check.  After the harvester was delivered, Nelson made repeated attempts to contact Kesselring, including a trip to Minnesota.  But Nelson never heard from Kesselring again and never received any money for the corn harvester. 

In May 2001, Nelson contacted law enforcement in Minnesota and relayed the information regarding the harvester to Deputy Sheriff Kenneth Schwieger.  Within a week, Schwieger contacted Kesselring, who admitted that he received the harvester, but said that it did not work.  He also said he had called the dealership to have them take it away, the harvester was gone by December 2000, and he thought the harvester had been repossessed, perhaps by Nelson, and if Nelson did not have it, Kesselring did not know where it was. 

In August 2001, Nelson again contacted Schwieger and told him that a farmer in Iowa might be in possession of the harvester.  After further investigation, Schwieger verified that the farmer in Iowa was in possession of the harvester.  The Iowa farmer testified at trial that his father had purchased the harvester on his behalf at an auction in March 2001.  He also testified that he paid $1,150 for it and that it "seemed to work pretty good."

The auctioneer testified that Kesselring asked him to sell a sweet-corn harvester at auction.  The auctioneer also testified that Kesselring did not set a minimum bid for the harvester, the auctioneer had never seen a sweet-corn harvester before, and his business receipt showed the harvester had sold for $1,150 and the proceeds were paid to Kesselring.  The jury found Kesselring guilty of the charge of theft by swindle.


            Kesselring argues that the evidence is insufficient to support his conviction.  In considering a sufficiency of the evidence challenge, the reviewing court will "take the evidence in the light most favorable to the state and assume that the jury believed the state’s witnesses and disbelieved any contradictory evidence."  State v. Pippitt, 645 N.W.2d 87, 92 (Minn. 2002).  Appellate review is "limited to ascertaining whether a jury, giving due regard to the presumption of innocence and to the state’s burden of proof beyond a reasonable doubt, could reasonably conclude that the defendant was guilty based on the facts in the record and any legitimate inferences therefrom."  State v. Harris, 589 N.W.2d 782, 791 (Minn. 1999) (quotation omitted).

A conviction based on circumstantial evidence may stand where the evidence viewed as a whole so directly leads to the accused's guilt that it excludes any other reasonable inference.  State v. Bias, 419 N.W.2d 480, 484 (Minn. 1988).  This standard "still recognizes a jury is in the best position to evaluate the circumstantial evidence . . . [and] determine[] the credibility and weight given to the testimony of individual witnesses."  Id. (quotation omitted).

            Kesselring was convicted of theft by swindle under section 609.52, which provides:

Whoever does any of the following commits theft and may be sentenced as provided in subdivision 3:


                        . . . .

(4) by swindling, whether by artifice, trick, device, or any other means, obtains property or services from another person[.]


Minn. Stat. § 609.52, subd. 2 (2000).  No single definition can cover the broad range of conduct included in the term "swindling."  State v. Ruffin, 280 Minn. 126, 130, 158 N.W.2d 202, 205 (1968).

            Here, the evidence shows that Kesselring took possession of Nelson's harvester but never paid for it.  The evidence also showed that Kesselring stopped payment on his check for delivery costs, that he delivered the machine to an auctioneer for sale, and that he did not set a minimum amount for the sale.  This conduct went beyond a mere failure to pay and constituted affirmative fraudulent or deceitful behavior.  See State v. Flicek, 657 N.W.2d 592, 598 (Minn. App. 2003) (holding swindle requires affirmative fraudulent or deceitful behavior).  Viewing this evidence as a whole, we conclude that it excludes all reasonable inference other than that Kesselring obtained Nelson's harvester by swindling him.  See Bias, 419 N.W.2d at 484 (stating standard for conviction based on circumstantial evidence).  We also conclude that the evidence is sufficient to sustain the conviction.