This opinion will be unpublished and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
Gary A. Keim,
Filed April 25, 2006
Mower County District Court
File No. K1-03-442
Patrick A. Oman, Mower County Attorney, Mower County Courthouse, 201 1st Street Northeast, Austin, MN 55912; and
Mike Hatch, Attorney General, James B. Early, Assistant
Attorney General, 1800
John M. Stuart, State
Considered and decided by Worke, Presiding Judge; Dietzen, Judge; and Collins, Judge.*
Appellant challenges his conviction of theft by swindle, arguing that hearsay evidence was improperly admitted, and that the evidence was insufficient to show intent to swindle. Appellant makes additional pro se arguments that he (1) is entitled to a new trial to permit him to testify, (2) disputes the evidence in the record, and (3) argues additional facts outside of the record. We affirm.
F A C T S
December 2002, Eddie Aynaszyan, a part-owner of a small
Following discussions with appellant, Aynaszyan hired a tow-truck driver to pick up the truck and take it to a body shop for repair. Subsequently, the tow truck driver called Aynaszyan and stated that appellant refused to release the truck because he had not received the $5,000 check and the purchase price was $7,500; and that the driver observed damage to the frame of the truck. Aynaszyan decided to cancel the transaction because appellant denied receipt of the $5,000 check, had raised the purchase price to $7,500, and had not provided him with title to the truck. Aynaszyan then issued a stop payment order on the $5,000 check.
Payne, a representative of appellant’s bank, testified that he advised
appellant of the stop-payment order and asked that he return the money. Appellant replied that he mailed the money to
Aynaszyan. Payne asked appellant, “You
mailed that much cash back in the mail to
Meadow Police Chief Richardson investigated the matter. He testified that he had difficulty locating
appellant but did eventually locate him by chance at the courthouse. When asked about the title to the truck,
appellant stated that the state patrol had taken it from him when the truck was
in an accident.
In March 2003, appellant was charged with theft by swindle, in violation of Minn. Stat. § 609.52, subds. 2(4) and 3(2) (2002). Following several changes of appellant’s plea to the charge, the matter was tried to a jury. Following a jury trial, appellant was convicted and received a stay of execution of his sentence and placed on probation. This appeal follows.
D E C I S I O N
argues that the district court’s failure to strike hearsay testimony was plain
error, and that his constitutional right to cross-examine and confront
witnesses against him was violated. “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 (
failure to object to evidence constitutes waiver of those issues on appeal
unless appellant shows that admission of the evidence was plain error.
Here, Aynaszyan testified:
And the towing person [Nelson], whoever, came to pick up the truck and [Nelson] called me back, [Nelson] said, “[Appellant], [appellant’s] not releasing the truck.” I said, “What do you mean? Why [appellant’s] not releasing?” [Nelson] said, “Because [appellant] wants $7,500 cash. [Appellant’s] saying he never received any money.” And I said, “What do you mean he never received any money? I Fed Ex’ed him a $5,000 cashier’s check.” [Nelson] said, “He never received it.”
Respondent does not
dispute that the admission of the driver’s statements through Aynaszyan’s
testimony was hearsay, and, therefore, its admission was plain error. But respondent contends that the hearsay
testimony was non-testimonial under Crawford
v. Washington, 541
The third prong
requires that “the error was prejudicial and affected the outcome of the case.”
583 N.W.2d at 741. The Griller court observed that the
defendant has the burden of persuasion on the third prong, and that “we
consider this to be a heavy burden.”
But even if
appellant showed that the error satisfies all three prongs under Griller, “we may correct the error only
if it seriously affect[s] the fairness, integrity, or public reputation of
judicial proceedings.” State v. Strommen, 648 N.W.2d 681, 686 (
contends that the evidence was insufficient to support his conviction. In 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 (
person commits theft by swindle if “by artifice, trick, device, or any other
means, [the person] obtains property or services from another person[.]”
Respondent, relying on all the evidence, including the hearsay testimony, argues that the evidence is sufficient to support the conviction. But appellant implicitly argues that the hearsay evidence regarding the tow-truck driver’s conversations with appellant should not be considered and that the evidence is otherwise insufficient to prove that he committed theft by swindle because the evidence fails to prove his intent.
testified that the tow-truck driver told him that appellant denied receiving
the $5,000 check and that the purchase price of the truck was $7,500, rather
than $5,000, and that the truck was more damaged than Aynaszyan anticipated. But the remaining testimony also shows
appellant’s intent to swindle Aynaszyan.
Aynaszyan testified that appellant cashed his check but did not release
either the truck or the title to him, and that appellant avoided contact with
him and did not respond to more than 50 phone calls. Appellant told Payne that he could not return
the $5,000 to the bank because he mailed the $5,000 in cash back to
The jury found the
state’s witnesses’ testimony to be credible, and it convicted appellant of
theft by swindle. “A defendant bears a
heavy burden to overturn a jury verdict.”
State v. Vick, 632 N.W.2d 676,
Additionally, appellant, in his pro se brief, argues that he should have the right to a new trial so that he can testify, contends that various evidence in the record is untrue, and asserts facts that are not in the record. Because appellant waived his right to testify on the record, because this court’s record is limited to the record made in the district court, and because the jury weighs the evidence in the record in making its determination of guilt, we conclude that appellant’s pro se arguments lack merit.
* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.