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be unpublished and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
State of Minnesota,
Markus Christopher Bell,
May 23, 2006
File No. K0033508
Mike Hatch, Attorney General, 1800 Bremer Tower, 445
Minnesota Street, St. Paul, MN 55101-2134; and
James C. Backstrom, Dakota County Attorney, Thomas L. Folie,
Special Staff Assistant County Attorney, Dakota County Judicial Center, 1560
West Highway 55, Hastings, MN 55033 (for respondent)
Mark D. Nyvold, 332
Minnesota Street, Suite W-1610, St. Paul, MN 55101 (for appellant)
and decided by Lansing,
Presiding Judge; Stoneburner,
Judge; and Collins,
U N P U B L I S H E D O P I N I O N
Appellant challenges his conviction of theft of a motor
vehicle, arguing that there is insufficient evidence that he took a motor
vehicle without consent and with intent to permanently deprive the owner of
possession to support the conviction.
Because there is sufficient evidence in the record to support the
conviction, we affirm.
Appellant Markus Christopher Bell removed a 2002 Jeep
Wrangler S from the Southview Chevrolet dealership (Southview) lot at
approximately 2:30 a.m. on October 17, 2003.
In order to remove the Jeep from the lot, Bell identified himself to the security guard
as a Southview used-car salesman, told the guard that a trade-in vehicle had
broken down, and he needed to get another one.
used the guard’s cell phone to make two calls before he took the Jeep. The security guard testified that Bell told
him he needed to borrow the guard’s cell phone to call “RJ” (the used-car
manager), and it appeared to the security guard that Bell left a message for
“RJ,” explaining the situation and telling him to call him if there were any
questions. Cleaning personnel let Bell into the building, and Bell left shortly thereafter in the Jeep. The security guard, who became suspicious
after Bell left, called Southview’s general
manager, Adam Delacy, who said that Bell
no longer worked for Southview and should not have taken a car. The security guard then notified police. The Jeep was recovered at the end of October
2003 in Hennepin County.
began working as a salesperson for Southview on July 21, 2003. When his employment began, Bell signed a receipt for Southview’s
handbook, which states in pertinent part:
I hereby acknowledge receipt of a copy
of [Southview’s] Employee Handbook. . . . I understand that it is my
responsibility to read and comply with the policies contained in this Employee
Handbook. . . . Either I or the Company can terminate the relationship at will,
with or without notice or cause, at any time.
The employee handbook contained the
If you are absent without
authorization for two (2) work days and have not called or attempted to report
in to your supervisor or manager, the Company may assume you have abandoned
your position, and thereby voluntarily resigned employment with the Company as
of your last day worked.
time sheet shows that Bell
last worked for Southview on October 8, 2003.
Next to the October 8 entry, a note reads, “Failure to return from
leave.” Bell did not write that note and did not sign
the timesheet. Bell testified at trial that he had never
seen that timesheet. He also denied ever
having been placed on, or taking, “leave.”
Southview’s general sales manager,
Adam Delacy, testified that Bell’s
employment was terminated on October 9, 2003, for failing to return from
leave. Delacy testified that he filled
out a “Termination and Payroll Status Change Form” on October 9, 2003, and
checked “Resignation” as the reason for the Bell’s termination. Betty Bullert, who handled payroll for
Southview, testified that Bell’s payroll record
does not contain any record of payment to Bell
after October 9, 2003.
Southview participates in monthly car sales at the state
fairgrounds but no witnesses from Southview were able to recall the dates of
any of the sales that occurred in October 2003.
Delacy testified that he did not know whether Bell
was still employed by Southview when the fairgrounds sale occurred in October
2003 or whether Bell
worked at the sale. RJ testified that
the sales only occurred once per month, and were never “back-to-back.” RJ testified that Bell
worked at the fairgrounds sale in October 2003, but was not certain of the
dates of the sale or when Bell
worked at the sale.
testified that there were back-to-back fairground sales in October 2003, one
that ran from Wednesday, October 8 to Monday, October 13 (excluding Sunday),
and one that ran from Wednesday, October 15 to Monday, October 20 (excluding
Sunday). Bell testified that he worked at the
fairgrounds sale for two days during the October 8-13 sale and worked at the
fairgrounds sale on October 16 and 17. Bell had no explanation
for his hours not being noted on his time sheet and for not being paid for the
days he claimed to have worked after October 8.
Jacqueline Howard, a long-time friend of Bell
and his family, testified that she took Bell’s
children to the fairgrounds sale on October 16 because she was interested in a
used car. She testified that she saw Bell, who was apparently working
for Southview at the fairgrounds sale, at about 6:30 or 7:00 p.m. on October 16. Howard was able to recall the dates by referring
to her cell phone records, which included a telephone call to Southview on October
9, followed by a telephone call to RJ’s cell phone on the same date. Howard testified that RJ was at the
fairgrounds when she called him on October 9, and RJ told her that Bell was “around
somewhere” on October 9.
To explain why he removed the Jeep from the Southview lot, Bell testified that, at
about 6 p.m. on October 16, he spoke to a customer who was interested in the
customized Jeep that was on the Southview lot, and the customer was going to
come back to the fairgrounds the next day to see the Jeep. An investigating officer determined that when
Bell used the security guard’s cell phone just
before taking the Jeep, Bell
had called an inoperable number and his own voice mail. At trial, Bell denied that he told the guard he was
calling RJ or that he pretended to leave a message for RJ about taking the Jeep. Bell
testified that he used the guard’s cell phone to check his own voice mail. Bell
acknowledged that he did not have explicit permission from Johnson, Delacy, or
any other Southview representative to take the vehicle, but testified that he
could drive any car on the lot that he wanted to drive. RJ, however, testified that the Jeep was “all
dressed up” with extra chrome, that no one was allowed to drive this Jeep
without his permission, and that vehicles were to be released only to or from
the fairgrounds sale during business hours; a rule that he never deviated
Bell testified twice that he took the Jeep directly
from the Southview lot to the fairgrounds.
testified that he parked the Jeep right in front of the test-drive opening and
left the Jeep at the fairgrounds. Later in his testimony, Bell said that he first drove the Jeep to his
home from the Southview lot and took it to the fairgrounds the next morning. The Jeep was recovered at the end of October
2003 in Hennepin County.
testified that he decided to resign from Southview on the morning of October
17, when he learned that he would not be paid the amount he expected for
working at the sale. Bell testified that he called Gregory Daniel,
a sales manager at another dealership, and told Daniel that he was resigning
from Southview and going to work for Daniel.
Daniel, who had asked Bell to come to
work for him, testified that he gave Bell
a ride home from the fairgrounds, but he did not recall the date.
RJ testified that in order for Bell
to resign, Bell
would have had to give notice to RJ, Delacy, or another manager. RJ testified that he could not remember Bell giving him a
resignation, “[b]ut we were on good speaking terms so I’m sure there was
something but I’m not quite sure what it was.”
was charged with one count of theft of a motor vehicle for taking the Jeep. After the district court denied Bell’s motion to dismiss the charges for lack of probable
waived his right to a jury trial. At his
bench trial, Bell
admitted that he had been convicted of a gross-misdemeanor in 1995 and for
theft of a motor vehicle in 1994.
The district court found Bell guilty and imposed the presumptive
guidelines sentence. This appeal
E C I S I O N
argues that the evidence is insufficient to show that he took the Jeep without
consent and with intent to permanently deprive Southview of possession. “When the sufficiency of the evidence is
raised on appeal, this court’s standard of review is the same for bench trials
as it is for jury trials.” State v. Lehikoinen, 463 N.W.2d 770, 772
1990). 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 district
court to reach the verdict that it did. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). The reviewing court must assume the district
court believed the state’s witnesses and disbelieved any evidence to the
contrary. State v. Moore, 438 N.W.2d 101, 108
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 district court, 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. Bernhardt v. State, 684 N.W.2d 465, 476-77 (Minn. 2004).
“Direct evidence is evidence that is based on personal
knowledge or observation and that, if true, proves a fact without inference or
presumption.” Id.at 684 N.W.2d 465, 477 n.11 (quotations
omitted). “Circumstantial evidence is
defined as evidence based on inference and not on personal knowledge or
observation and all evidence that is not given by eyewitness testimony.” Id.(quotations omitted).
A conviction “based entirely on circumstantial evidence
merits stricter scrutiny than convictions based in part on direct
evidence.” State v. Jones, 516 N.W.2d 545, 549 (Minn. 1994).
But “circumstantial evidence is entitled to the same weight as direct
evidence.” State v. Bauer, 598 N.W.2d 352, 370 (Minn. 1999) (citation omitted). The circumstantial evidence must form a
complete chain that, in view of the evidence as a whole, leads so directly to
the guilt of the defendant as to exclude beyond a reasonable doubt any
reasonable inference other than guilt. Jones, 516 N.W.2d at 549. A fact-finder, however, is in the best
position to evaluate circumstantial evidence, and a verdict is entitled to due
deference. Webb, 440 N.W.2d at 430.
“Whoever does any of the following commits theft . . . (1)
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
. . . .” Minn. Stat. § 609.52, subd. 2(1)
(2002). Intent is generally determined
from the defendant’s words and actions in light of the surrounding
circumstances. State v. Hardimon, 310 N.W.2d 564, 566 (Minn. 1981).
“Claim of right” means that a person has a reasonable belief of license
or permission. State v. Brechon, 352 N.W.2d 745, 748 (Minn. 1984). “If the defendant has a claim of right, he
lacks the criminal intent which is the gravamen of the offense.” Id. at
749. “If the state presents evidence
that defendant has no claim of right, the burden then shifts to the defendant
who may offer evidence of his reasonable belief that he has a property right .
. . .” Id.
at 750. “Subjective reasons not related
to a claimed property right or permission are irrelevant and immaterial to the
issue of claim of right.” Id.
In this case, it is undisputed that Bell intentionally took the Jeep and that it
was Southview’s property. Bell argues that as a
salesman for Southview he “had the ability to take and drive dealership
vehicles . . . or to show or deliver a vehicle to a customer or a sales site,”
and that the state failed to show that he knew his employment was terminated at
the time he took the Jeep.
Despite evidence that Bell was
at the fairgrounds on October 16, the circumstantial evidence leads only to a
conclusion that Bell’s
employment with Southview was terminated as of October 9. Bell
has no explanation for why his timesheet does not show that he worked from
October 9-15 or why he did not claim compensation for time he claims he worked
after October 9. The direct evidence
established that no cars were to leave the Southview lot after business hours,
Bell did not have permission to drive the Jeep that he took, Bell could not
have entered the fairgrounds at the time he took the Jeep from the Southview
lot, and Bell used a ruse to reassure the security guard that he had authority
to take the Jeep. This evidence is
sufficient to support the conclusion that Bell
took the Jeep without consent.
Bell’s testimony about where
he took the Jeep was inconsistent, but it is undisputed that Bell did not return the Jeep to the Southview
lot or deliver it to anyone connected with Southview at the fairgrounds. The Jeep was not recovered for weeks and was
eventually found in Hennepin
County. Viewing the evidence as we must, in the light
favorable to the verdict, the evidence is sufficient to support the finding
that Bell took
the Jeep with intent to permanently deprive Southview of possession of the Jeep.