This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
IN COURT OF APPEALS
C. Dennis Simion,
Filed May 15, 2007
Hennepin County District Court
File No. 03090639
Lori Swanson, Attorney General, 1800
Michael O. Freeman, Hennepin County Attorney, Donna J. Wolfson, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)
John M. Stuart, State Public Defender, Steven P. Russett, Assistant
Considered and decided by Toussaint, Chief Judge; Worke, Judge; and Crippen, Judge.[*]
U N P U B L I S H E D O P I N I O N
On appeal from convictions for theft from a person with superior right to possession and damage to property, appellant argues that (1) the district court lacked jurisdiction because the state failed to show that any part of the offenses occurred in Minnesota; (2) the evidence was insufficient to support his convictions; (3) the district court abused its discretion by instructing the jury on “superior right of possession”; (4) the prosecutor committed prejudicial misconduct by commenting on appellant’s presence during trial, accusing defense counsel of conspiring to fabricate testimony, asking appellant were-they-lying questions, and denigrating the defense; and (5) the district court abused its discretion by ordering him to pay restitution. We affirm on all issues, except restitution, which we reverse and remand to the district court.
In June 2003, appellant C. Dennis Simion, a truck driver, requested that President Line Inc. (PLI), his employer, order a custom captain seat for his truck. PLI agreed to buy the $1,709.23 seat, and appellant agreed to have $50 deducted each week from his paycheck to reimburse PLI for the seat.
A jury found appellant guilty of theft from a person with superior right of possession and damage to property, and not guilty of theft by swindle. The district court denied appellant’s motions for a judgment of acquittal or for a new trial, and in sentencing appellant, ordered restitution in the amount of $1,509.23. This appeal follows.
D E C I S I O N
argues that the district court lacked jurisdiction because he
removed the property from the truck at his home in
Jurisdiction refers to the court’s
power to hear and decide a dispute. State v. Smith, 421
N.W.2d 315, 318 (
A person may be convicted and sentenced under the law of this state if the person:
Sykes, the defendant
pleaded guilty to terroristic threats after sending a threatening letter and
placing a threatening phone call from
Similar to Sykes, the offenses that appellant was convicted of caused a result
Here, appellant had a legal interest in the seat. Appellant testified that he removed all of his
“personal belongings,” including the seat, from the truck. There was also evidence that PLI owned the
seat until appellant paid for it. Appellant
also testified that he took the captain’s seat out in
Appellant was also convicted of damage
to property, in violation of Minn.
Stat. § 609.595, subd. 1(3) (2002).
A person is guilty of damage to
property if that person “intentionally causes damage to physical property of
another without the latter’s consent” and “the damage reduces the value of the
property by more than $500 measured by the cost of repair and
replacement.” Minn. Stat.
§ 609.595, subd. 1(3). Appellant
testified that he took the property out of the truck in
Sufficiency of the Evidence
Appellant argues that the evidence was
insufficient to support his conviction of theft from a person with superior
right of possession. When the sufficiency of the evidence is
challenged, 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 support the verdict. State v. Webb,440 N.W.2d 426, 430 (
Appellant contends that the state failed to show that he had a legal interest in the seat because all of the state’s witnesses testified that PLI owned the seat until appellant paid for it. But appellant testified that he removed his “personal belongings” from the truck, including the seat. Appellant also testified that he and PLI had an agreement that PLI would pay for the seat and appellant would own the seat after he reimbursed PLI. Appellant made payments on the seat, but quit before he fully reimbursed PLI. The evidence is sufficient to show that appellant had a legal interest in the seat.
Appellant contends that the state failed to show that he took the seat out of PLI’s possession because PLI never re-established possession of the truck or seat. But possession “is not limited to actual manual control . . . but extends to things under one’s power and control.” Black’s Law Dictionary 1164 (6th ed. 1990). PLI had power and control over the truck and seat because PLI owned the truck and assigned it to appellant and purchased the seat and was being reimbursed by appellant. The evidence is sufficient to show that PLI had possession of the seat.
Finally, appellant contends that the state
failed to show that PLI had a superior right of possession because that right
flows from a possessory lien. Appellant
relies on State v. Cohen, in which a
woman gave her fur coat to a furrier for alterations. State
v. Cohen, 196
argues that the district court abused its discretion by
failing to instruct the jury on a “superior right.” District courts have broad discretion in
selecting the language in jury instructions.
State v. Baird, 654 N.W.2d
105, 113 (
Appellant argues that the district court abused its discretion when it instructed the jury that:
The State has offered evidence that [PLI] owned the custom captain’s chair until it was fully paid for by [appellant]. [Appellant] offered testimony that he owned the . . . chair upon purchase. If you find that the State has proven its point beyond a reasonable doubt, then [PLI] had a right of possession superior to that of [appellant].
Appellant contends that the instruction relieved the state of having to prove an element of the charge by directing the jury to find that PLI had a superior right of possession if the state showed that PLI owned the seat until appellant paid for it. But the comment to the jury instruction on superior right provides that:
The question whether one right is superior to another is one of law, and for the court to decide. The question whether a particular relationship existed involves a question of fact. The judge should formulate an instruction, similar to [The State has offered evidence that the defendant had given possession of the ___ to ___ as security for a loan. If you find that the State has proven this beyond a reasonable doubt, then ___ had a right of possession superior to that of the defendant].
Appellant argues that the prosecutor
committed prejudicial misconduct. A district
court’s denial of a new-trial motion based on alleged prosecutorial misconduct
will be reversed only “when the misconduct, considered in the context of the
trial as a whole, was so serious and prejudicial that the defendant’s
constitutional right to a fair trial was impaired.” State
v. Johnson, 616 N.W.2d 720, 727-28 (
Appellant argues that the prosecutor committed
misconduct in his closing argument. “Whether
the prosecutor acted improperly in his final argument to the jury is largely a
matter within the sound discretion of the [district] court.” State
v. Fossen, 282 N.W.2d 496, 503 (
argues that the prosecutor committed misconduct by commenting on appellant’s
presence during the trial and his ability to listen to the witnesses’
testimony. One of the most basic rights
guaranteed by the Confrontation Clause is a defendant’s right to be present
during his trial.
[W]hen you evaluate [appellant’s] testimony, please keep in mind that he was the only individual in this whole case that had the opportunity to sit through and listen to everybody’s testimony and then he was able to tailor his own testimony to fit the facts that he heard.
The prosecutor erred in making this comment, but the error was harmless beyond a reasonable doubt. This is especially true because this comment constituted one sentence of the prosecutor’s argument that consumed approximately 36 pages of a transcript. Further, appellant is giving this comment undue prominence because it was obvious to the jury that appellant attended the trial every day and listened to the witnesses testify. Therefore, the verdict was unattributable to the comment.
During his closing argument the prosecutor addressed the theft-by-swindle charge and inconsistencies in appellant’s testimony and documents. The prosecutor stated:
[Appellant] could not explain the inconsistencies. Then we took a break and then after he got the chance to go out in the hallway and consult with his attorney, lo and behold Brian Hill made him doctor this document.
The verdict was surely unattributable to any misconduct because the jury found appellant not guilty of the theft-by-swindle charge.
Appellant argues that the prosecutor
committed misconduct by asking appellant were-they-lying questions and by
denigrating the defense. Appellant did
not object at trial. The failure to object implies
that the misconduct was not prejudicial and “weighs heavily against granting
any remedy.” State v. Ives, 568
N.W.2d 710, 713 (
Appellant argues that the prosecutor committed misconduct by
asking appellant whether the state’s witnesses were lying. Generally, were-they-lying
questions are improper because they are perceived as unfairly giving the jury
the impression that in order to acquit, it must determine that the witness
whose testimony contradicts the defendant’s testimony is lying. State v. Pilot, 595 N.W.2d 511,516
Appellant contends that the prosecutor asked were-they-lying questions four times. First, relating to the theft-by-swindle charge, appellant testified that he had his tires replaced and the individual who provided this service would not take a check, so appellant made the check from PLI out to himself and paid this person cash. Former PLI employees testified that drivers were not allowed to make these checks out to themselves, but appellant testified that he wrote these checks out to himself several times. The prosecutor asked appellant if PLI’s former general manager was lying when he testified that it was not common practice for drivers to make these checks out to themselves. Appellant has failed to meet the plain-error test; even if the prosecutor erred, appellant’s substantial rights were not affected because the jury found appellant not guilty of the theft-by-swindle charge.
Second, the prosecutor asked appellant if PLI’s former general
manager lied when he testified about his inspection of the damage to the truck. Appellant responded: “If I could have called him a liar, I would
have.” Appellant claimed that this
witness lied, and thus, the prosecutor did not err in asking if the witness was
lying. The prosecutor then asked
appellant if he recalled PLI’s former general manager’s testimony regarding
when the damage to the truck was discovered.
Appellant responded: “I remember
him lying to you.” The prosecutor asked appellant if he believed that this
witness, who no longer worked for PLI and lives in
Finally, the prosecutor asked appellant if he heard the testimony
of Robert Anderson, from whom PLI requested an estimate for the cost to repair
Appellant also argues that the prosecutor
committed misconduct by denigrating the defense. Prosecutors are allowed to argue that a
particular defense has no merit or anticipate arguments defense counsel will
make in their closing argument, but they are not allowed to denigrate or
belittle the defense itself. State v. Ashby, 567 N.W.2d 21, 28 (
Here, in the state’s closing argument, the prosecutor stated:
[Appellant] has attempted to reflect [sic] your attention from the real issues in this case by attempting to confuse the issues with claims of disputes over money, civil liability, who believed who owed money. None of these things are legal defenses to his actions.
. . . .
During the trial, [appellant] has taken every opportunity to dirty up [PLI] by accusing and insinuating that they were violating some rule or regulation, when in reality it was actually [appellant] who—whose conduct violated the law.
The prosecutor did not err because the comments did not denigrate the defense, but rather attempted to show that appellant’s defenses were without merit. Appellant fails under the plain-error test to show that this comment affected his substantial rights.
Appellant argues that the district court
abused its discretion in ordering restitution. The victim of a crime has the
right to receive restitution for loss caused by a convicted offender. Minn. Stat. § 611A.04, subd. 1(a)
(2002). The burden of proving the loss
is on the prosecution. Minn. Stat. §
611A.045, subd. 3(a) (2002). District
courts have broad discretion in ordering restitution, and this court reviews a
restitution order for an abuse of that discretion. State
v. Tenerelli, 598 N.W.2d 668, 672 (
Here, the state requested $1,509.23, the difference between the cost of the seat and what appellant paid PLI. Appellant argued that PLI sold the seat for $900. The district court ordered that appellant pay $1,509.23, and then provided that a hearing could be held to determine if that amount was correct. The record fails to show that a hearing was held and the state concedes that the amount of restitution was in error. This issue is remanded to the district court.
Affirmed in part, reversed in part, and remanded.
[*] Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.