This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).




State of Minnesota,


Tyler Drake,



Filed December 18, 2007


Stoneburner, Judge


Hennepin County District Court

File No. 06015849



Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

Michael O. Freeman, Hennepin County Attorney, Linda M. Freyer, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

John M. Stuart, State Public Defender, Marie L. Wolf, Assistant Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN 55414 (for appellant)


            Considered and decided by Halbrooks, Presiding Judge; Stoneburner, Judge; and Minge, Judge.



U N P U B L I S H E D   O P I N I O N


            Appellant challenges the felony sentence imposed for his conviction of receiving stolen property.  Because the value of the stolen property determines the sentence imposed, appellant argues that the district court erred in holding that value was neither an element of the crime nor required to be submitted to the jury under Blakely.  Appellant asserts that, absent a jury determination of value, his offense can be sentenced only as a misdemeanor, the lowest level of the offense defined by the applicable sentencing statute.  Because we determine that the state’s error in failing to cite the correct sentencing provision in the complaint and the district court’s error in failing to require a jury determination of the value of the stolen vehicle were harmless errors under the circumstances of this case, we affirm.


Appellant Tyler Drake was charged with one count of receiving a stolen motor vehicle with a value of not more than $500, in violation of Minn. Stat. §§ 609.53, subd. 1, .52, subd. 3(d)(v) (2006).  At Drake’s trial, the only evidence of the value of the stolen vehicle was the owner’s testimony, based on insurance documents, that her insurance deductible was $100 and that her insurance company paid her $1,830 after concluding that the recovered vehicle was a total loss.  The district court did not submit the question of the vehicle’s value to the jury.  The jury found Drake guilty of receiving stolen property. 

            At sentencing, Drake argued that in order to support a felony-level sentence the state was required to prove that the vehicle’s value was not more than $500, and it had failed to do so because the only evidence in the record was that the value was over $500.  Drake asserted that because there was no jury determination of the value of the vehicle, under Blakely, he can only be sentenced to a misdemeanor, the minimum sentence for the offense of receiving stolen property.   The district court rejected this argument, apparently on the basis that Drake had failed to request a jury instruction on value and had therefore waived the right to assert the issue at sentencing.  The district court sentenced Drake to 13 months in prison and a $3,000 fine, but stayed execution of the prison term and all but $50 of the fine.  Drake was placed on probation for three years with conditions.  This appeal followed.

            On appeal, Drake does not dispute that the evidence at trial was sufficient to support his conviction of the crime of receiving stolen property, but asserts that absent a jury determination of the value of the property, the district court can only sentence him to a misdemeanor, the lowest level of the crime of receiving stolen property under Minn. Stat. § 609.52, subd. 3(5) (2006).


1.       Sentencing scheme for theft-related crimes

Subdivision 1 of section 609.53 provides that “any person who receives, possesses, transfers, buys or conceals any stolen property . . . knowing or having reason to know the property was stolen . . . may be sentenced in accordance with the provisions of section 609.52, subdivision 3,” which makes the penalty for theft-related crimes dependent on the value, and in some cases the character, of the property involved.[1]  Minn. Stat. §§ 609.52, subd. 3, .53, subd. 1 (2006).  Provisions under subdivision 3 of section 609.52 describe the circumstances that will result in a sentence of not more than five years in prison and payment of a fine of not more than $10,000.  Minn. Stat. § 609.52, subd. 3(3)(a) – (d) (2006).  Circumstances that trigger this felony sentence include receiving stolen property with a value of more than $500 but not more than $2,500, and receiving a stolen motor vehicle valued at not more than $500.  Id., subd. 3(3)(a), (d)(v).  The value of stolen property is defined as “the retail market value at the time of the theft, or if the retail market value cannot be ascertained, the cost of replacement of the property within a reasonable time after the theft.”  Id., subd. 1(3). 

In this case, the state charged Drake with receiving a stolen motor vehicle with a value less than $500 under subdivision 3(3)(d)(v).  But the uncontroverted evidence was that the motor vehicle had a value of more than $500 but not more than $2,500, making the appropriate sentencing provision subdivision 3(d)(a).  The severity of the sentence is the same in each instance.  Nevertheless, Drake asserts that because the state failed to prove beyond a reasonable doubt that he was guilty of the sentencing provision listed in the complaint, the state failed to prove an essential element of the charge and he is entitled to sentencing relief.  Drake also argues that the value of the stolen property is an element of the crime that must be submitted to the jury. 

Whether statutes have been properly construed is a question of law subject to
de novo review.  State v. Murphy, 545 N.W.2d 909, 914 (Minn. 1996).
  A person is guilty of receiving stolen property if he receives or possesses property that was stolen, knowing or having reason to know the property was stolen.  Minn.  Stat. § 609.53, subd. 1 (2006).  The elements of receiving stolen property are (1) defendant received or concealed the property specified in the charge; (2) the property had been stolen; and (3) defendant knew or should have known the property had been stolen.  State v. Carter, 293 Minn. 102, 103-04, 196 N.W.2d 607, 609 (1972).  In this case the jury was instructed on these elements, which are contained in the pattern jury instructions for this crime.  See 10 Minnesota Practice, CRIMJIG 16.48 (2006) (listing equivalent elements as Carter above). 

            Value is not listed as an element in any of the pattern jury instructions for theft crimes for which sentencing depends on the value of the stolen property.  But comments to the pattern jury instructions for all such theft-related crimes contain a reference to additional jury instructions on the value and nature of the property involved.  See CRIMJIG 16.48 cmt. (referencing 10 Minnesota Practice, CRIMJIG 16.82 (2006), which directs the jury, once they have found guilt, to determine the value of the stolen property).

And case law has long held that a jury determination of the value of stolen property is essential when severity of the sentence depends on the value of the stolen property.  See State v. Giroux, 283 Minn. 298, 302, 168 N.W.2d 15, 17-18 (1969) (stating that in the context of a theft prosecution, “[i]t was necessary for the jury to find that the value of the property taken exceeded $100 but not $2,500”); State v. Jordan, 272 Minn. 84, 88, 136 N.W.2d 601, 605 (1965) (stating that the critical fact question in this theft case was “[h]ow much did [accomplice] take?”); State v. Biehoffer, 269 Minn. 35, 44, 129 N.W.2d 918, 924 (1964) (stating that an essential element of first-degree grand larceny is proof that the property was valued at more than $25); see also 9A Henry W. McCarr & Jack S. Nordby, Minnesota Practice § 52.2(D) (3d ed. 2001) (stating that “[s]ince value is an essential element [of a prosecution for theft], it must be proved beyond a reasonable doubt”).  Therefore, although the value of stolen property is not an element required to establish guilt of receiving stolen property, value is an element necessary to determine the severity of the sentence, and as such, is to be determined by the jury.

            The Minnesota Supreme Court recently addressed whether the rule announced in Blakely v. Washington, 542 U.S. 296, 303, 124 S. Ct. 2531, 2537 (2004), that the maximum sentence a judge may impose is one based solely on facts admitted or found beyond a reasonable doubt by a jury, applies to a situation where the presumptive sentence depends on a fact not found by the jury.  State v. DeRosier, 719 N.W.2d 900, 903 (Minn. 2006) (involving application of a presumptive sentence that was dependent on the date the offense of criminal sexual conduct occurred).  The supreme court held that “[i]f the determination of which presumptive sentence applies depends on a fact issue,” the jury must decide the issue.  Id.  Therefore, in a prosecution for receiving stolen property, Blakely,as interpreted by DeRosier,  requires a jury determination of the value of stolen property.

            The Minnesota Supreme Court has also recently held that the right to a jury determination of facts under Blakely cannot be forfeited by silence.  State v. Osborne, 715 N.W.2d 436, 443 (Minn. 2006).  Therefore, Drake’s failure to request a jury instruction on the value of the stolen vehicle did not constitute a waiver of his right to assert a Blakely violation.  Based on case law pre- and post-Blakely, we conclude that the district court erred by failing to submit the issue of the value of the stolen property to the jury.

2.      Harmless error

            This case presents two problems: (1) the evidence did not conform to the sentencing provision referenced in the complaint, and (2) the district court failed to submit the question of the value of the property to the jury.  We conclude, however, that each of these issues may be addressed under a harmless-error analysis.

a.                                          Failure to cite correct subsection of sentencing statute

            A complaint is required to state the “provision of law which the defendant is alleged to have violated,” but “[e]rror in the citation or its omission shall not be ground for dismissal or for reversal of a conviction if the error or omission did not prejudice the defendant.”  Minn. R. Crim. P. 17.02, subd. 3 (2006).  In this case, Drake was not prejudiced by the state’s erroneous citation of subdivision 3(3)(d)(v) rather than subdivision 3(3)(a).  The error did not result in Drake being charged with an additional or different offense,[2] and  did not alter the severity of the sentence for the crime charged.  We conclude that the state’s failure to cite the correct sentencing provision was harmless under the facts of this case.


            b. Failure to submit question of value to jury             

             Failure to submit the value issue to the jury is reviewed under a harmless-error standard.  DeRosier, 719 N.W.2d at 904 (examining a Blakely violation under a harmless-error standard) .  “An error is not harmless if there is any reasonable doubt the result would have been different if the error had not occurred.”  Id.

            The uncontroverted evidence in the record is that the vehicle’s value was more than $500 but less than $2,500.  Nothing in the record supports Drake’s argument that he can be given only a misdemeanor sentence under subdivision 3(5) of section 609.52, which applies to cases in which the value of the stolen property is $250 or less.  Minn. Stat. § 609.52, subd. 3(5) (2006).  The plain language of subdivision 3(3)(d)(v) makes it clear that the legislature intended the penalty for receiving a stolen vehicle to be a felony-level sentence, even if the value of the vehicle received is less than $250.  Drake’s sentence is fully supported by the record and is not an upward departure from the presumptive sentence for the crime with which he was charged.   Therefore, despite the fact that Drake was entitled to a jury determination of the value of the stolen property, he was not prejudiced by the district court’s failure to submit this issue to the jury. Under these circumstances, we conclude that the error of failing to submit the question of value to the jury was harmless.


[1] In this appeal Drake does not challenge the failure of the district court to submit a question to the jury about whether the stolen property he received was a motor vehicle.

[2] See Minn. R. Crim. P. 17.05 (2006), which permits amendment to a complaint “at any time before verdict . . . if no additional or different offense is charged and if substantial rights of the defendant are not prejudiced.”