This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
STATE OF MINNESOTA
IN COURT OF APPEALS
Filed May 24, 2005
County District Court
Attorney General, Jennifer Beens Harper, Assistant Attorney General, 1800 NCL
Tower, 445 Minnesota Street, St. Paul, MN
Aitkin County Attorney, 217 Second
Street N.W., Aitkin,
MN 56431 (for respondent)
A. McCloud, Carson J. Heefner, McCloud & Boedigheimer, P.A., Suite 1000,
Circle K, Box 216, Shakopee, MN 55379
Considered and decided by Kalitowski, Presiding
Judge, and Poritsky,
P U B L I S H E D O P I N I O N
Marc Joseph Bessette
argues that the evidence was insufficient to support his conviction for felony
theft. Because the jury was in the best
position to assess the credibility of the witnesses and there is sufficient
evidence to establish both the theft and valuation of the property to sustain a
conviction for felony theft, we affirm.
D E C I S I O N
considering a claim of insufficient evidence, 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, is sufficient to allow
the jurors to reach the verdict that they did. State v.
Webb, 440 N.W.2d 426, 430 (Minn. 1989).
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.
found appellant guilty of felony theft under Minn. Stat. § 609.52, subd. 2(1)
(2002). Conviction of theft of property
valued at more than $500 but less than $2,500 is a felony level offense. Minn. Stat. § 609.52, subd. 3(3)(a) (2002).
that Thomas Elinich, the alleged owner of the stolen
property, failed to provide any receipts indicating that he, in fact, owned the
tools. Elinich, however, testified to
the distinct characteristics of several of his tools. In particular, Elinich indicated that one
welder had a piece of duct tape on it, that another welder was still attached
to the shipping crate on the bottom and also had duct tape on it, and that
several other tools had parts missing or were broken in various places. Tools matching these descriptions were
recovered from appellant and from Ed Ristow,
who testified that he had received some tools from appellant as partial payment
for excavating work he did for appellant in the fall of 2001. In addition, a magnetic locator recovered
from Ristow had Elinich’s name, address, and phone number on the yellow
case. Finally, Elinich indicated in his
initial list that his buck saw was missing the blade guide, as was the
recovered buck saw, and he even provided the actual blade guide at trial. Elinich’s testimony was sufficient to
identify the recovered property as belonging to him, even without any receipts.
provided a reasonable explanation as to why he did not have receipts for the
tools when he explained that the time requirement for holding on to receipts
for tax purposes had lapsed. Although
appellant claimed that he had purchased several of the tools from Thomas Knettel’s
hardware store, the receipts he produced were not original and only listed
tools that appellant specifically asked Knettel to attest were purchased in
1996. The item numbers and prices provided
by Knettel were approximate guesses. In
fact, several of the model numbers do not match the model numbers on Elinich’s
list or on the recovered tools.
Finally, other evidence
supports the theft conviction. Kim Mindrum
testified that no one else had access to the Aitkin storage unit while she had
the key. Appellant told Elinich and Deputy John Drahota
during the investigation that he transferred the tools from the storage unit to
his pole barn. Ristow indicated that he
looked at the tools in appellant’s pole barn and picked them up from the pole
barn. Even Ristow’s son corroborated the
exchange of tools for excavation.
Elinich positively identified the tools based on the inventory list and
photos from Drahota, and in fact, he indicated that four of the confiscated
items were not his; he also positively identified the tools in person. We therefore conclude that the evidence was sufficient
to support the conviction for theft. See State v. Moore, 438 N.W.2d 101, 108
(Minn. 1989) (stating
this court must assume the jury believed the state’s witnesses and disbelieved
any evidence to the contrary).
also argues that there was insufficient proof of value of the tools. We disagree.
Ristow valued the items he received from appellant at $565. There were additional tools recovered from
appellant’s property, which increase the overall value of the missing
tools. Elinich testified that when he
put together the list of missing items that he sent to Drahota, he obtained
prices for replacement tools from Mills Fleet Farm, which totaled over
$8,000. Even if the jury accepted the
values placed on the four tools that appellant asked Knettel to create receipts
for, they still have a value of $1,372, which is over the $500 necessary to
support a conviction for felony theft.
affirm appellant’s conviction for felony theft.