This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Steven Gary Olson, petitioner,
Filed January 10, 2006
Washington County District Court
File No. K2-01-2830
Douglas H.R. Olson, Rider Bennett, LLP,
Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Douglas H. Johnson, Washington County Attorney, Kari A. Lindstrom, Assistant County Attorney, Jennifer S. Bovitz, Assistant County Attorney, 14949 62nd Street North, P.O. Box 6, Stillwater, MN 55082 (for respondent)
Considered and decided by Willis, Presiding Judge; Toussaint, Chief Judge; and Worke, Judge.
U N P U B L I S H E D O P I N I O N
On appeal from the district court’s denial of appellant’s postconviction petition challenging his 2003 conviction of theft by swindle and diversion of corporate property, appellant argues that (1) the district court erred in a pretrial order; (2) the district court erred in evidentiary rulings; (3) the prosecutor committed prejudicial misconduct in her closing argument; (4) there was insufficient evidence to prove the charges; (5) the district court failed to sufficiently define key elements in its jury instructions; (6) he was denied effective assistance of trial counsel; and (7) the district court erred in ordering full restitution. We affirm.
In 1994, appellant Steven Gary Olson and James
Jackson organized and were each 50% shareholders in Elite Roofing and Construction,
Inc. Elite soon evolved into a large
commercial roofing contractor, earning $3 million annually. Appellant was Elite’s president and took care
of the day-to-day operations.
In the summer of
2000, appellant’s relationship with
The investigation uncovered 221 transactions of theft totaling $334,139.05. An accounting expert separated the theft from Elite into four categories: (1) Elite checks used for appellant’s personal purchases; (2) Elite’s credit card used for appellant’s personal purchases; (3) Elite checks used to pay appellant’s personal credit-card balances; and (4) alteration of corporate records. Appellant altered Elite’s financial records by issuing a single check to pay for several invoices and then taking one or more of the invoices and issuing a second check payable to appellant or to “cash.” This second check was registered as being issued to creditor(s) on the invoice(s); however, records and creditors’ testimony revealed that Elite made no cash payments on its accounts. Between June 1996 and July 2000, appellant had issued 128 checks to himself and falsely reported them in the check registry.
Appellant was charged with theft by swindle over $35,000 and diversion of corporate assets over $35,000 in violation of Minn. Stat § 609.52, subd. 2(4), (15) (2000). After a jury found appellant guilty, the district court ordered appellant to pay Elite $334,139 in restitution. Appellant filed a petition for postconviction relief, which the district court denied, and this appeal follows.
D E C I S I O N
“A petition for postconviction relief is a
collateral attack on a judgment which carries a presumption of regularity and which,
therefore, cannot be lightly set aside.”
Pederson v. State, 649 N.W.2d
161, 163 (
reviewing a pre-trial order suppressing evidence where the facts are not in
dispute and the trial court’s decision is a question of law, the reviewing
court may independently review the facts and determine, as a matter of law,
whether the evidence need be suppressed.”
State v. Othoudt, 482 N.W.2d
218, 221 (
argues that the district court erred by sua sponte issuing a pretrial order determining
what his defenses were going to be and by limiting him from testifying
concerning his lack of intent. Appellant
argues that his case is similar to State
v. Brechon, 352 N.W.2d 745 (
Here, the district court’s pretrial order was specific and narrow in scope, providing:
Any defense that asserts that [appellant] cannot be guilty of theft from Elite, because he is a shareholder of Elite and a person cannot steal from himself is insufficient as a matter of law. A corporation is a separate legal entity with rights distinct from those of its individual directors, officers, and shareholders. Consequently, any and all evidence that is intended solely to prove that [appellant] merely ‘stole from himself’ is irrelevant and, thus, inadmissible. Such evidence may be admissible, however, if probative of some other fact that is of consequence to the determination of this case.
(Emphasis added.) “Evidence which is not relevant is
Appellant was allowed to, and did, testify that he did not intend to steal from Elite. Appellant testified that it was his belief that he was authorized to write checks for office expenditures and to compensate and reimburse himself. Appellant also testified that it was his belief that he was not stealing because he was authorized to write checks and use Elite’s credit cards. The district court merely limited appellant’s testimony regarding his belief that he could not be criminally liable for stealing from himself as a 50% shareholder. The district court did not err in limiting irrelevant testimony from appellant.
also argues that the district court erred by ruling that evidence regarding
Again, the district court’s pretrial order was specific and narrow in scope, providing:
Any defense that asserts that [appellant] cannot be guilty
of theft from Elite, because
(Emphasis added.) Appellant was allowed to introduce evidence
“Evidentiary rulings rest within the
sound discretion of the trial court and will not be reversed absent a clear
abuse of discretion. On appeal, the
appellant has the burden of establishing that the trial court abused its
discretion and that appellant was thereby prejudiced.” State
v. Amos, 658 N.W.2d 201, 203 (
Appellant argues that the
district court erred when it prevented appellant from presenting evidence regarding a civil lawsuit
between appellant and
Appellant contends that evidence
regarding the civil lawsuit between Jackson and appellant went to
Appellant next argues that the district
court erred when it excluded an IRS audit report from evidence. Appellant claims that this report supported appellant’s
belief that what he did was acceptable because the IRS reviewed Elite’s
financial records. Appellant did not introduce
an IRS audit report; rather, appellant wanted to testify that the IRS found no
wrongdoing following an audit. The
district court did not allow appellant to testify as such because it was
rulings concerning . . . foundation . . . are within the trial court’s
sound discretion and will only be reversed when that discretion has been
clearly abused.” Johnson v. Washington County, 518 N.W.2d 594, 601 (
Finally, appellant argues that the district court erred by admitting
evidence in the form of schedules from an expert accountant summarizing the
methods appellant used to steal from Elite.
Appellant challenges the title of one schedule, arguing that it is
prejudicial, argumentative, and forms a conclusion that is a fact determination
for the jury. If the district court erred
in admitting evidence, this court determines “whether there is a reasonable
possibility that the wrongfully admitted evidence significantly affected the verdict[.]” Post,
512 N.W.2d at 102 n.2. If there is a
reasonable possibility that the verdict might have been more favorable to the
defendant without the evidence, then the error is prejudicial.
The contents of voluminous writings may be presented to the court
in the form of a chart or summary if it is inconvenient for the writings to be
The admissibility of summarized evidence is a matter within the
discretion of the district court and will not be reversed absent an abuse of
As a general rule, such charts are admitted in long, complicated cases where they accurately represent the proponent’s testimony or theory and where the court determines that such would be an aid to the jury and instructs the jury to use the exhibit only as an aid and not as the evidence itself.
State v. Ruud, 259 N.W.2d
567, 576 (
Here, appellant objected to the title of the schedule at trial, but even if admitting the schedule as titled was error, it was not reversible error. The schedule was prepared from Elite’s records and is a summary of Elite checks registered as being issued for office supplies/equipment but that were discovered to be written by appellant for personal purchases, e.g., CDs, DVDs, furniture, a game table, TVs, and a camera. Appellant admitted during his testimony that he made these purchases. Appellant also testified that he purchased the DVDs for training purposes, but most of the DVDs purchased were of popular motion pictures that were found at appellant’s home. The schedule was an accurate summary, it was helpful to the jury and the jury had access to all of the original exhibits that went into the chart. The district court did not commit reversible error in admitting the schedule as it was titled.
Prosecutorial misconduct occurs when the state appeals to passion
or prejudice and distracts a jury from determining whether the evidence
provides proof beyond a reasonable doubt.
v. Ashby, 567 N.W.2d 21, 27 (
Appellant argues that the
prosecutor committed misconduct by making disparaging comments about appellant
in her closing argument. Misconduct
cannot be based on a few isolated statements but must be considered in the
context of the entire closing argument. Powers,
654 N.W.2d at 678. Here, the prosecutor stated,
“playing dumb is not a defense,” “the defendant sits up on the stand and says,
‘I don’t know why I’m here,’” and made comments regarding appellant’s inability
to find anything to support his case in 22 boxes of discovery. Appellant argues that these comments are disparaging. It is improper to disparage the
defense in closing argument. State v. Griese, 565 N.W.2d 419, 427 (
Even considering the merits, after examining the
prosecutor’s closing argument in its entirety, the misconduct was harmless
beyond a reasonable doubt.
Appellant next argues that the prosecutor argued facts outside the record by blaming the theft on appellant’s gambling. Evidence of appellant’s gambling was admitted into evidence. Appellant and his wife admitted to gambling, and credit-card statements showed several withdrawals made at casinos. Also, appellant’s tax returns reported gambling winnings and losses. The prosecutor’s comment on appellant’s gambling was not prejudicial misconduct.
Next, appellant argues that it was
misconduct for the prosecutor to suggest that
appellant had not produced witnesses or
evidence to support his defense.
Despite waiver of this argument, review of the record demonstrates that this claim is without merit.
Finally, appellant argues that the
prosecutor committed misconduct by impermissibly interjecting herself as a
witness by offering her own assertions regarding appellant’s claim that he had
been denied access to documents. Appellant
fails to argue what specifically the prosecutor did that constituted
misconduct. Further, appellant failed to
object at trial and, therefore, has waived this issue on appeal. See
Moreover, the alleged misconduct was not
“unduly prejudicial.” See Whittaker, 568 N.W.2d at 450 (stating
that relief will be granted in the absence of a timely objection only in
extreme cases involving “unduly prejudicial” misconduct). First, appellant failed to object to the
prosecutor’s comments at trial. A
defendant’s failure to object implies that the misconduct is not prejudicial
and “weighs heavily against granting any remedy.” Ives,
568 N.W.2d at 713. Second, the district
court diminished the effect of the prosecutor’s comments by instructing the
jury that counsel’s arguments were not evidence, and that they must decide the
case without prejudice or emotion. See State v. Washington, 521 N.W.2d 35,
Sufficiency of the Evidence
On an insufficient-evidence claim, this court’s 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, was
sufficient to permit the jurors to reach the verdict [that] they did.” State v. Webb, 440 N.W.2d 426, 430 (
To obtain a conviction of theft by swindle,
the state had the burden of proving beyond a reasonable doubt that appellant
obtained property or services from another person by swindling, whether by
artifice, trick or device. Minn. Stat.
§ 609.52, subd. 2(4) (2000). The elements
of theft by swindle as applied in this case are: (1) Elite gave up possession of money to
appellant because of the swindle; (2) appellant acted with the intention of
obtaining for himself the possession of money from Elite; and (3) appellant’s
act was a swindle. 10
Appellant argues that the evidence is
insufficient to support his convictions.
Specifically, appellant argues that as half-owner of Elite he could not
swindle himself, his check-writing authority was limitless, Elite had no
approval process for issuing checks, a corporation is not a person, and he was
authorized to reimburse himself for money he put into Elite. During trial, evidence of 221 theft
transactions was admitted, including unauthorized use of Elite checks for
personal purchases that benefited appellant, receipts, fraudulent check
registers, altered invoices, and credit-card statements. The evidence was sufficient for the jury to
convict appellant of theft by swindle because Elite gave up possession of
money to appellant, appellant obtained the money for himself, and he did this
through a scheme that he concealed from
To obtain a conviction of theft of
corporate property, the state had the burden of proving that appellant, “with
intent to defraud, divert[ed] corporate property other than in accordance with
general business purposes or for purposes other than those specified in the
corporation’s articles of incorporation.”
Minn. Stat. § 609.52, subd. 2(15) (2000). The elements of theft of corporate property
as applied to this case are: (1) appellant diverted Elite’s money to himself;
(2) the diversion of Elite’s money was not in accordance with general business
purposes, or was for purposes other than those specified in Elite’s articles of
incorporation; and (3) appellant acted with an intent to defraud. 10
Appellant argues that the evidence was
insufficient to find him guilty of diversion of corporate funds because Elite’s
articles do not specify or limit Elite’s business or expenditures, compensation
is a general business purpose, there were no restrictions on appellant’s
spending, and he did not have the requisite intent to defraud as half-owner. Elite’s bylaws do not include the acts
committed by appellant in Elite’s general business purpose. Specifically, the chief financial officer is
responsible for disbursing corporate funds and issuing checks in the name of
the corporation as ordered by the board.
The board, as
Despite the fact that appellant made no
jury-instruction requests, he argues that the instructions were
inadequate. Generally, “an appellate court will
not consider an alleged error in jury instructions unless the instructions have
been objected to at trial.” State v.
Baird, 654 N.W.2d 105, 113 (
Appellant argues that the district court
failed to adequately instruct the jury on “property of another” and should have
instructed the jury on appellant’s claim of right and entitlement. A district court is given
considerable latitude in selecting the language of jury instructions, but
instructions may not materially misstate the law. State v. Pendleton, 567 N.W.2d 265,
Appellant also argues that the district court erred by not
defining “general business practices” in the context of the corporate-diversion
statute. Appellant did not request such
an instruction, therefore, “there must be (1) error; (2) that is plain; and (3)
the error must affect substantial rights.” Griller, 583 N.W.2d at
740. When reviewing the jury
instructions, this court must assume that the jurors were intelligent and
practical people. State v. Edwards,
Ineffective Assistance of Counsel
We review de novo decisions by the
postconviction court concerning claims of ineffective assistance of
counsel. Opsahl v. State, 677 N.W.2d 414, 420 (
Generally, we indulge a strong presumption that counsel’s
performance falls within “the wide range of professionally competent assistance.” Strickland v. Washington, 466
Appellant argues that counsel failed to comply with pretrial
orders and failed to subpoena records and witnesses. The record, however, indicates the opposite
regarding pretrial orders and counsel’s own filing of numerous pretrial
motions. Appellant’s further assertions
are critical of his trial counsel’s trial tactics and not incompetence.
Appellant next argues that his trial counsel failed to effectively
Finally, appellant argues that his trial counsel failed to object during the prosecutor’s closing argument, to preserve objections, adequately proffer evidence, and failed to make an adequate record for appeal. Appellant, however, fails to identify any particular instance where his counsel failed. Because counsel’s representation at trial did not fall below an objective standard of reasonableness, we do not reach the second prong of the ineffective-assistance-of-counsel test. Given the apparent competence with which appellant’s counsel presented his case, the district court did not abuse its discretion in denying the petition for postconviction relief with respect to the ineffective-assistance-of-counsel claim.
Appellant argues that he should have been granted an evidentiary
hearing on his petition for postconviction relief. A postconviction court is not required to
hold an evidentiary hearing unless there are material facts in dispute that
must be resolved in order to determine the postconviction claim on the
merits. Hodgson v. State, 540
N.W.2d 515, 517 (
Here, appellant argues that he is entitled to an evidentiary hearing based on the alleged error that his trial counsel failed to request and introduce exonerating documents. The district court determined that many of the claims in appellant’s petition for postconviction relief revolved around which documents were offered into evidence. The district court determined that the trial evidence included many documents and whether to request a continuance to sort through those documents fell within counsel’s discretionary trial tactics. The district court did not abuse its discretion in denying appellant’s petition for postconviction relief because his allegations, if proved, would not entitle him to relief.
A crime victim has the right to restitution as part of the disposition of a criminal charge that results in conviction. Minn. Stat. § 611A.04, subd. 1(a) (2000). The district court has wide discretion to order reasonable restitution, however, there must be a factual basis establishing the victim’s loss. State v. Chapman, 362 N.W.2d 401, 404 (Minn. App. 1985), review denied (Minn. May 1, 1985). If an order for restitution is challenged, the state must establish the amount of the loss sustained by the victim by a preponderance of the evidence. Minn. Stat. § 611A.045, subd. 3(a) (2000).
Appellant argues that the district court should have made a reduction in the restitution amount in light of the fact that appellant owned 50% of Elite and because appellant was entitled to reimburse himself for funds he put into Elite. Additionally, appellant argues that the court failed to take into account the fact that appellant had little resources available to pay restitution. When determining the amount of restitution, the court shall consider “the amount of economic loss sustained by the victim as a result of the offense” and “the income, resources, and obligations of the defendant.” Minn. Stat. § 611A.045, subd. 1(a) (2000). But the district court has “wide flexibility to structure restitution orders that take into account a defendant’s ability to pay . . . a reduced monthly payment.” State v. Maidi, 537 N.W.2d 280, 285–86 (Minn. 1995) (affirming $147,251.27 restitution order imposed on a defendant who earned $6.50 per hour because the district court considered the defendant’s resources when it determined the restitution payment schedule).
The district court rejected appellant’s
arguments that he was entitled to (1) offset one-half of Elite’s profits and (2)
reimbursement for money he invested in Elite.
The district court determined that it would reconsider whether an amount
should be offset from the total amount of restitution in light of a resolution
in the civil trial between Jackson and appellant. However, because the victim was Elite and not
Jackson, it was premature to determine whether an amount should be offset. Further, appellant argues that he has
documentation of agreements between appellant and
Appellant also argues that he does not have sufficient funds to pay full restitution. However, the district court determined that because appellant was currently an employee of a new roofing business that he formerly owned and that is now run by his wife, the court could not easily accept appellant’s proof of wages. Appellant did not successfully demonstrate an inability to pay the required monthly restitution payments. The district court did not abuse its discretion in determining that appellant was able to pay restitution to Elite.