This opinion will be unpublished and

may not be cited except as provided by

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








State of Minnesota,





Herbert Colby,




Filed December 21, 2004


Robert H. Schumacher, Judge


Stearns County District Court

File No. K0021372



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


Janelle P. Kendall, Stearns County Attorney, Administration Center, 705 Courthouse Square, Room 448, St. Cloud, MN 56303-4773 (for respondent)


Bruce M. Rivers, Rivers and Associates, P.A., 280B Butler Square Building, 100 North Sixth Street, Minneapolis, MN 55403 (for appellant)



            Considered and decided by Hudson, Presiding Judge; Kalitowski, Judge; and Schumacher, Judge.

U N P U B L I S H E D   O P I N I O N


Appellant Herbert Colby challenges his conviction of theft over $2,500 under Minn. Stat. § 609.52, subd. 2(1), 3 (2000).  He argues it was plain error for the trial court to admit hearsay testimony regarding the value of the property stolen and therefore there was insufficient evidence to sustain his conviction, the state failed to prove that the owners never consented to his use of the property, and the prosecutor committed multiple instances of misconduct.  We affirm.


This case arises from the thefts of a video game and money from an ATM machine that were located on the main floor of D.B. Searle's Bar and Restaurant in St. Cloud.  The thefts occurred on January 27, 2002, sometime after Shannon Rudy, the night manager, left the bar at approximately 2:45 a.m. and William Shaw opened the bar at 9:30 a.m. 

It is uncontested that following the bar's closing that morning Colby lacquered the floor in the area where the machines were located.  Thomas Emers, the owner of Searle's, testified that he had contracted with Colby to lacquer the bar's floors and that Colby had provided this service "six or seven times" prior to January 27. 

Rudy testified to the typical procedure when Colby lacquered the floor.  Colby would normally arrive at 1:30 a.m. and begin his work after the staff had cleared the area of tables and other furniture.  The night manager would assure that everyone but Colby had left the bar and would lock all the doors except the back door.  The night manager would provide Colby with a key to the back door, and Colby would put the key through the mail slot in the bar's front door when he was finished.  

Rudy also testified how Colby deviated from the standard procedure on January 27.  She testified that he arrived at the bar approximately 15 minutes early and insisted that he needed to go out to his truck to smoke a cigarette; Rudy later noticed as she left the bar that Colby's truck was nowhere to be seen.  She testified that Colby had another individual with him unlike the other nights she had been present when he had worked alone.  Rudy assumed he had brought a helper because he was in a hurry; however, Rudy found that he was actually moving slower than normal.  She testified that Colby would often be finishing his work by the time she was ready to leave, but on this night Colby was still sweeping the floors when she left at approximately 2:45 a.m.  She also testified that Colby pressed her for the key much more than normal and appeared much more interested in making sure the bar was empty and that no one would need to return.      

Approximately six hours after Rudy left the bar Shaw arrived.  Shaw testified that he noticed that the back door was not locked or fully closed.  He also testified that the lacquer on the floor was still wet, that he eventually went out on the floor and noticed "the top part of the ATM machine was damaged and . . . the bottom part was broken into," and that a video game was gone.  He immediately called the police. 

            Officer Thomas Schleiman was dispatched to the bar.  Schlieman testified that he observed that the top of the ATM had been "pried open [and the] insides of it . . . were gone."  Schlieman also observed "a lacquer finger or thumbprint on the machine . . . [and] lacquer in [the] pry mark also, fresh lacquer.  Same—very consistent with what was on the floor."  Schleiman also testified that the area where the video game should have been was not lacquered, but the unlacquered area "was not squared off " and that there was "about six inches" on one corner that had been lacquered that could not have been if the video game was in place. 

            Schleiman testified that he examined the rest of the bar; that a video camera near the back door of the bar was pushed up; and that he inspected the back door and found that with respect to "the female receptacle of the dead bolt, somebody had removed a screw, and that portion was bent out ever so slightly so that the door couldn't close all the way like it was supposed to" and there were not any "pry marks" on the door or doorjamb.  Schleiman opined that the only way the deadbolt could have been altered was "if the door was open and somebody was actually working on it."  A second investigator Gerald Lehner testified that in his opinion the door was made to look like a burglary had occurred.  

Lehner testified that he called Colby on January 28, and during their conversation Colby stated that he was the last person to leave the bar, that he locked the back door when he left, and that the back door had been propped open during the time he was working and a group of people walked in and asked to use the pay phone.  Lehner further testified that Colby would not provide the name of his assistant but did schedule a meeting with Lehner.  Colby never showed up.

Lehner testified that when Colby did not appear for the scheduled meeting, Lehner called him a second time, and that Colby stated he did not show up because he was upset with Lehner and said, "If you think I did something wrong, then charge me."  Lehner also testified that Colby denied having the video game or breaking into the ATM machine, admitted he had an assistant on the morning of January 27 but again did not provide his assistant's name, denied that having an assistant would allow him to finish his job any quicker, and said that on the night in question he left the bar "between 3:30 and four but probably closer to 3:30." 

The state also offered testimony from Emers and Schleiman regarding the value of the video game and the amount of money that had been taken.  Emers testified that he had learned on the day before trial that the replacement value of the machine was $5,295.  Schleiman testified that the "owners gave [him] an exact value later on [the video game], and it was $4,781 . . . ."  Emer also testified that the cash that was in the ATM machine was "$1,500, and the machine itself was roughly $5,000."    

At trial, Colby called Guy Connolly.  The state then asked for a bench conference and informed the court and defense counsel that "Mr. Connolly has been charged in this case.  I'm not sure that he is aware of the ramifications."  Defense counsel stated she was unaware that Connolly had been charged.  Connolly was provided counsel and later returned to the stand where he asserted his Fifth Amendment right to remain silent.    

Colby called Investigator Andrea Hansen to testify to statements Connolly made to her during her investigation of the crime.  According to Hansen, Connolly said that he helped Colby on January 27 because Colby had a broken arm.  Hansen also testified that Connolly said he arrived home between 3:30 a.m. and 4:00 a.m.

Colby also called Connolly's girlfriend.  She testified that in January 2002 Connolly was living with Colby and that she frequently stayed there as well.  She testified that she remembered Connolly and Colby coming home on January 27 "just after four.  About 4:20, I think."  She also testified that she went into the garage at that time and did not see any machines in the back of Colby's truck.  She admitted, however, that it takes over an hour and a half to drive from Searle's to Colby's home in Cottage Grove, which she admitted meant that Colby must have left the bar by about 2:30 a.m. in order to arrive at his home at 4:20 a.m. 

            The jury found Colby guilty of theft over $2,500, and he was sentenced to an executed sentence of 23 months. 


            1.            Colby argues that the district court erred in admitting testimony regarding the value of the property that was stolen.  The district court has discretion to admit or exclude evidence, and its rulings will not be reversed unless there was an abuse of discretion or the rulings were based on an erroneous view of the law. TMG Life Ins. Co. v. County of Goodhue, 540 N.W.2d 848, 851 (Minn. 1995).

Colby argues that Emers's testimony, "Yeah, [the value of the video game is] $5,295," and, "Cash that was in the machine was $1,500, and the machine itself was roughly $5,000," is hearsay and there was not a sufficient foundation establishing Emers had personal knowledge of the values.  Colby also argues Schleiman's testimony, "Yes, actually the owners gave an exact value later on it, and it was $4,781" and "according to people at D.B. Searle's, they said that somebody's playing that machine nonstop just about every night because it's a very popular machine, they said.  There's hundreds and hundreds of dollars that are spent on the machine" is hearsay.  Colby did not object to any of this testimony. 

In order for a trial court to fully exercise its discretion to admit or exclude evidence, it is imperative that a party wishing to challenge the admissibility of the evidence object to the evidence.  State v. Pieschke, 295 N.W.2d 580, 584 (Minn. 1980).  In Pieschke the supreme court concluded that while the record did not "indisputably" establish that an out-of-court statement fell within a hearsay exception, the district court did not abuse its discretion because "defense counsel's failure to object . . . denied the trial court the opportunity to evaluate his objection and denied the state the opportunity to provide additional foundation for admitting the testimony if the court had deemed it necessary."  Id.  We conclude that here, as in Pieschke, the trial court did not abuse its discretion admitting the now-challenged testimony.

            2.            Colby also argues that there is insufficient evidence showing that he took the arcade game or the ATM machine without the owners' consent.  Colby was convicted of theft over $2,500 under Minn. Stat. § 609.52, subd. 2(1) (2000), which provides that a person is guilty of theft if the person "intentionally and without claim of right takes, uses, transfers, conceals or retains possession of movable property of another without the other's consent and with intent to deprive the owner permanently of possession of the property."  

            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).

            Here, Schleiman testified that the ATM "looked like somebody took a sledgehammer to it and beat the crap out of it" and that the top of the machine had been "pried open."  Schleiman also testified that he and another officer contacted the owners of both machines to determine the value of the video game and the amount of money in the ATM.  Schleiman testified that the lock on the back door had also been damaged, but the door had to be open for the damage to have occurred.  Lehner testified that the damage was made by someone attempting to make it look like a burglary.  Shaw testified that he called the police immediately when he realized the video game was missing and the ATM had been broken into.  This testimony created a legitimate inference that someone other than Colby owned the video game and the ATM and those owners did not consent to Colby's removal of the video game or removal of money from the ATM after prying it open.  See id. 

We note that Colby himself found there to be little question on this issue when he moved the district court for a judgment of acquittal stating, "Certainly there is no dispute as to the fact that the ATM and the money and the video game were taken from the premises, [and] certainly no one had permission to do so."

3.            Colby argues that the prosecutor committed misconduct that entitles him to a new trial. Colby did not object to any of the instances he now argues are misconduct.  "If the defendant failed to object to the misconduct at trial, he forfeits the right to have the issue considered on appeal," unless the misconduct is unduly prejudicial.  State v. Powers, 654 N.W.2d 667, 678 (Minn. 2003). Misconduct is unduly prejudicial when it plays a "substantial part in influencing the jury to convict."  State v. Parker, 417 N.W.2d 643, 647 (Minn. 1988). 

Colby argues the prosecutor committed misconduct by charging Connolly shortly before his trial for the purpose of making Connolly unavailable to the defense.  "As a general rule, the prosecutor's decision whom to prosecute and what charge to file is a discretionary matter which is not subject to judicial review absent proof by the defendant of deliberate discrimination based on some unjustifiable standard such as race, sex, or religion."  State v. Herme, 298 N.W.2d 454, 455 (Minn. 1980).  Colby has offered no argument that the decision to charge Connolly was based on an "unjustifiable standard." 

Once the prosecutor had charged Connolly, he had a duty to inform him of his right to counsel.  Minn. R. Prof. Conduct 3.8(b) (stating in criminal cases, prosecutor shall "make reasonable efforts to assure that the accused has been advised of the right to, and the procedure for obtaining, counsel").  The prosecutor, however, was not required by law to give Connolly testimonial immunity so that he would testify on Colby's behalf.  State v. Peirce, 364 N.W.2d 801, 809 (Minn. 1985).

Colby also argues the prosecutor committed multiple instances of misconduct during his closing arguments.  "The propriety of a prosecutor's final argument is a matter within the sound discretion of the trial court."  State v. Parker, 353 N.W.2d 122, 127 (Minn. 1984).  When reviewing alleged misconduct in closing statements, appellate courts must look at the whole argument in context, not just selective phrases or remarks.  State v. Walsh, 495 N.W.2d 602, 607 (Minn. 1993).

Colby argues that the prosecutor alluded to his failure to testify in the following phrases from the prosecutor's closing argument and rebuttal:

1)When asked again about his assistant, [Colby said] why do you want to know?  Just go ahead and charge me.  When Officer Lehner invited him to have an interview, and try and straighten things out – now, again I'm not saying that Officer Lehner was pretending to be Mr. Colby's buddy. . . .  Some of you might – or all of might feel it's reasonable for Mr. Colby to get mad and want nothing to do with Investigator Lehner, but based on your life experience, you might also think a reasonable person would want to clear their name and cooperate with an officer. 


2)One of the things the defense attorney wondered was if anybody ever asked.  And yeah, we – the police did ask Mr. Colby, and he got mad and didn't want to talk.


3) And the basic difference here why the other D. B. Searle's employees never became suspects is they cooperated with the police. . . .  They gave full statements to the police, leading to further investigation involving Mr. Colby, and Mr. Colby chose not to cooperate with the police.  


The prosecutor's comments all refer to Colby's statements and his conduct before he was taken into custody or placed under arrest.  See Doyle v. Ohio, 426 U.S. 610, 619, 96 S. Ct. 2240, 2245 (1976) (holding prosecutor's reference to defendants silence "at the time of arrest and after receiving Miranda warnings, violated the Due Process Clause of the Fourteenth Amendment").  Colby argues the prosecutor's statement "had the effect of commenting on [his] failure to testify," but he has cited no case law or legal argument that states that commenting on prearrest silence or prearrest conduct is equivalent to commenting on an accused's failure to testify.  This court generally considers issues based on mere assertions to be waived unless the error is obvious on mere inspection.  State v. Butcher, 563 N.W.2d 776, 780 (Minn. App. 1997), review denied (Minn. Aug. 5, 1997).  We therefore decline to address this argument.

Colby also argues that the prosecutor improperly shifted the burden of proof from the state to the defendant when the prosecutor said, "There was some discussion of Mr. Colby having a broken arm at the time but nothing other than sort of hearsay references to it.  You didn't see any evidence of what physical condition Mr. Colby was in other than from —from his ex-girlfriend, and you can take her testimony as you will." 

It is prosecutorial misconduct to misstate the burden of proof in closing arguments.  State v. Coleman, 373 N.W.2d 777, 782 (Minn. 1985).  Prosecutors are free, however, to specifically argue that a particular defense or argument has no merit in view of the evidence.  State v. Salitros, 499 N.W.2d 815, 818 (Minn. 1993).  So long as the argument focuses on or highlights evidence that the state believes makes the defense impossible, rather than denigrates the defense, the argument is not improper.  State v. Johnson, 616 N.W.2d 720, 730 (Minn. 2000).  Here, the prosecutor's argument highlights the evidence that makes Colby's particular defense improbable.  The prosecutor's closing argument did not improperly shift the burden of proof.

Colby also argues that the prosecutor committed misconduct because he purposefully elicited inadmissible hearsay evidence and evidence that lacked foundation.  Colby did not object to admission of this evidence.  Even if the prosecutor's conduct could be construed as misconduct, it was not unduly prejudicial and when coupled with Colby's failure to object, we conclude Colby has forfeited his right to have the issue considered on appeal.  See Powers, 654 N.W.2d at 678; see also Pieschke, 295 N.W.2d at 584 (noting failure to object denied state the opportunity to lay additional foundation); State v. Henderson, 620 N.W.2d 688, 702 (Minn. 2001) (concluding prosecutor had not acted improperly because "there [was] no indication the prosecutor persisted in trying to elicit testimony the court had ruled inadmissible").