This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).






State of Minnesota,


Melissa Ann Barten,


Filed March 29, 2005


Stoneburner, Judge


Blue Earth County District Court

File No. T2037848


Mike Hatch, Attorney General, Suite 1100, NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and


Eileen Wells, Mankato City Attorney, Christopher D. Cain, Assistant City Attorney, 10 Civic Center Plaza, Box 3368, Mankato, MN 56002-3368 (for respondent)


John M. Stuart, Minnesota Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN 55414; and


James D. Fleming, Chief Public Defender, 2070 Mankato Place, Box 1059, Mankato, MN 56002-1059 (for appellant)


            Considered and decided by Lansing, Presiding Judge; Willis, Judge; and Stoneburner, Judge.


U N P U B L I S H E D  O P I N I O N




In this appeal from a conviction of misdemeanor retail theft, appellant Melissa Ann Barten argues that the state provided insufficient proof of her intent to support the conviction.  Because the evidence is sufficient, we affirm.



Lacy Wilkins, a loss-prevention employee for the Mankato Hy-Vee store, saw appellant walking from the pharmacy section of the store to the back of the store carrying a red Hy-Vee hand-basket that contained a purse and a box of Tylenol P.M.  Approximately five minutes later, he saw appellant in the makeup aisle and noticed that the Tylenol was no longer in her basket.  Wilkins became suspicious and put appellant under surveillance.  He observed appellant place makeup products into her purse, which was still in the basket, as she left the makeup aisle.  Continuing his watch over appellant, Wilkins saw her pick up a box of hair-coloring product and move toward the back of the store.  As Wilkins followed appellant he saw her place the hair-coloring product in her purse and close the purse.

When Wilkins approached appellant and made eye contact, she walked away “very fast.”  Wilkins did not remember seeing the basket at that time but he testified that “she did have her purse, and I could see her doing something, and all of a sudden the hair coloring, she pulled it out or it came out in her hand and [she] laid it on some paper plates” in the Kool-Aid aisle.  Wilkins stopped appellant at the end of the aisle, identified himself and told appellant that she was under arrest for shoplifting.  An assistant store manager was with Wilkins when he arrested appellant.  Wilkins took appellant’s purse from her and brought appellant to the Hy-Vee office.  Appellant declined to identify herself.  Her purse contained only a sealed bottle of Tylenol P.M. without its box,[1] two Almay makeup items and two CoverGirl makeup items.

Appellant testified that she did not go near the Tylenol in the Hy-Vee store, and she inadvertently put the makeup items in her purse as she dropped them into her shopping basket.  She testified that she discovered the items in her purse while she was in the Kool-Aid aisle, when she looked for her money to pay for the items.  She testified that she purchased the Tylenol P.M. two days earlier in a different store and had not used it because she did not have a headache that day.  She also denied picking up a hair-coloring item, stating that she had not colored her hair for years.  Appellant testified that Wilkins did not identify himself, he frightened her, and the accusations baffled her because she had not finished shopping and had enough money to pay for all of the items.[2]       

Mankato police officer Dan Davidson came to the store and determined appellant’s identity from the DVS website.  He testified that appellant was cooperative. Appellant was charged with misdemeanor theft under Minn. Stat. § 609.52, subd. 2(1) (2002).  A jury found her guilty, and the judge sentenced appellant.  This appeal followed.



Appellant asserts that the evidence is insufficient to support the jury’s finding that she intended to permanently deprive Hy-Vee of its property.  In considering a claim of insufficient evidence, this court’s review is limited to a careful 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 the verdict they returned.  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).  This is especially true when resolution of the matter depends mainly on conflicting testimony.  State v. Pieschke, 295 N.W.2d 580, 584 (Minn. 1980).  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).

Minn. Stat. § 609.52, subd. 2, provides in relevant part:

Whoever does any of the following commits theft . . . :


(1)              intentionally and without claim of right takes, uses, transfers, conceals or retains possession of moveable property of another without the other’s consent and with intent to deprive the owner permanently of possession of the property[.]


Intent is generally to be determined from the defendant’s words and actions in light of the surrounding circumstances.  See State v. Duea, 414 N.W.2d 513, 515 (Minn. App. 1987) (citing State v. Hadimon, 310 N.W.2d 564, 566 (Minn. 1981)).  In Minnesota, there is no requirement that a defendant must leave or attempt to leave a store to establish an intent to permanently deprive under the statute.

Appellant argues that something more than what she did in the Hy-Vee store is necessary to show intent to permanently deprive Hy-Vee of this property, and suggests that unless she had attempted to walk out of the store without paying for the items, the evidence is insufficient to prove intent.  We disagree.  Wilkins testified that he saw appellant place Tylenol P.M., cosmetics, and a hair-coloring product in her bag and close the bag.  He testified that appellant quickly walked away from him when he made eye contact with her and that he saw her discarding the hair-coloring product in the Kool-Aid aisle.  Wilkins demonstrated for the jury exactly how appellant placed items, using a purse that appellant agreed was “real similar” to the purse involved in the incident.  This evidence, and surrounding circumstances, such as appellant bringing a completely empty purse into the store, her lack of identification, refusal to identify herself, comments she made when apprehended, and claiming ownership of the Tylenol provide sufficient evidence from which the jury could determine appellant’s intent.  See Duea, 414 N.W.2d at 515 (“stuffing” some goods in pocket and walking away from officer and resisting talking to officer regarding stolen goods, without sufficient explanation for possessing the stolen goods, sufficient to show intent); In re Welfare of J.P.L.,359 N.W.2d 622, 624 (Minn. App. 1984) (removal of packaging from stolen toy supported finding of intent to deprive); State v. Gravley, 359 N.W.2d 681, 683 (Minn. App. 1985) (asserting ownership over stolen property supported finding of intent to permanently deprive), review denied (Minn. Mar. 13, 1984).  Clearly the jury did not find appellant’s testimony credible when she said that items were unintentionally dropped into her purse and that she intended to pay for the items.  This court will not disturb credibility determinations.  See Dale v. State, 535 N.W.2d 619, 623 (Minn. 1995).  There is sufficient evidence of intent in the record to support the conviction.


[1] Wilkins said he never found the Tylenol box because he did not look for it.  Appellant said that Wilkins brought an empty Tylenol box into the office but it did not match the bottle in her purse.

[2] Appellant testified that, in the Kool-Aid aisle, she unzipped a side pocket of her purse to remove her cash.  The record is not clear about what became of the cash.  It was not in the purse when appellant was arrested.  Appellant testified that she placed the cash in her pocket and she would have paid for the items.  Wilkins testified that appellant, when apprehended, said that she had done nothing wrong and stated that they could not “do this to [her],” and did not state that she intended to pay for the items.