This opinion will be unpublished and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
State of Minnesota,
Stacy Michelle Sybrant,
Filed November 6, 2007
Chisago County District Court
File No. CR-05-619
Lori Swanson, Attorney General, Paul R. Kempainen, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Janet A. Reiter, Chisago County Attorney, Chisago County Courthouse, 313 North Main Street, Center City, MN 55012 (for respondent)
Melissa Sheridan, Assistant State Public Defender, 1380 Corporate Center Curve, Suite 320, Eagan, MN 55121 (for appellant)
Considered and decided by Toussaint, Chief Judge; Worke, Judge; and Crippen, Judge.[*]
Appellant Stacy Michelle Sybrant argues that she should have been charged with theft by swindle rather than aggravated forgery because the theft statute is more specific than the forgery statute. Appellant attempted to purchase merchandise with a counterfeit $100 bill. Appellant admitted that she knew that the bill was counterfeit; she stated that she got the bill from an acquaintance who printed fake money. A jury found appellant guilty of aggravated forgery, in violation of Minn. Stat. § 609.625, subd. 3 (2004).
Appellant’s argument is premised on the holding in State v. Kalvig that when two statutes are irreconcilably in conflict because their elements are essentially identical but have different penalties, the more specific statute should apply. 296 Minn. 395, 398, 209 N.W.2d 678, 680 (1973). The record, however, shows that this issue was not raised by appellant in pretrial proceedings and she did not move for post-trial relief. This court generally will not consider matters not raised in the court below. Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996). Because this issue was not raised and considered by the district court, appellant has waived consideration of this issue; however, we may review any matter “as the interests of justice may require.” Minn. R. Crim. P. 28.02, subd. 11.
Appellant’s argument is one of statutory interpretation. Statutory construction is a question of law, which this court reviews de novo. State v. Stewart, 624 N.W.2d 585, 588 (Minn. 2001). “[W]hen two criminal statutes, one general and one specific, conflict because they have the same elements but differing penalties, the more specific statute governs over the more general statute, unless the legislature manifestly intends for the general statute to control.” State v. Craven, 628 N.W.2d 632, 635 (Minn. App. 2001), review denied (Minn. Aug. 15, 2001). This court has recognized that “[i]f Kalvig is to have any precedential impact, the statutes at issue here must also conflict and be incapable of reconciliation.” State v. Williams, 396 N.W.2d 840, 844 (Minn. App. 1986). This court noted that Minnesota courts have often distinguished Kalvig and concluded that “Kalvig is to be confined to its facts.” Id. at 845. When such a situation does not arise, the general rule applies which states that absent legislative intent to the contrary and absent discrimination against a particular class of defendants, the prosecutor may prosecute under any and all statutes that the defendant’s act violates regardless of penalty. United States v. Batchelder, 442 U.S. 114, 123-24, 99 S. Ct. 2198, 2204 (1979).
The statutes at issue here are Minn. Stat. § 609.625, subd. 3 (2004) (aggravated forgery) and Minn. Stat. § 609.52, subd. 2(4) (2004) and Minn. Stat. § 609.17 (2004) (attempted theft by swindle). The essential elements of aggravated forgery (uttering) are: (1) a forged writing; (2) knowledge that it was forged; (3) uttering the forged writing; and (4) the uttering was with intent to defraud. 10A Minnesota Practice, CRIMJIG 19.04 (2006). The essential elements of attempted theft by swindle are: (1) intent to commit theft by swindle, which has the following elements: (a) obtaining property from another because of the swindle; (b) intent to obtain the property; and (c) a swindle, the essence of which is the cheating of another by a deliberate artifice or scheme; and (2) the defendant did an act that was a substantial step toward the commission of that crime. 10A Minnesota Practice, CRIMJIG 5.01 and 16.10 (2006).
There is no irreconcilable conflict between these statutes. Aggravated forgery requires a forged writing, and that the writing be uttered. Theft by swindle, however, can be accomplished by any “deliberate artifice or scheme,” including verbal ones that do not require a writing or affirmative action. Appellant also incorrectly argues that the theft-by-swindle statute is more specific than aggravated forgery. Based on the elements, the theft-by-swindle statute is more general. Even the court in Kalvig determined that “[i]t is clear and undisputed that the theft statute is one of general application.” 296 Minn. at 680, 209 N.W.2d at 397-98. Because there is no irreconcilable conflict between these two statutes, Kalvig does not apply. Further, because the aggravated-forgery statute is more specific and there is no legislative intent to the contrary, it was proper for appellant to be charged with and prosecuted for the forgery crime.
[*] Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.