This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1994).

STATE OF MINNESOTA
IN COURT OF APPEALS
C3-95-2054

State of Minnesota,
Respondent,

vs.

James Michael Moehlenbrock,
Appellant.

Filed September 17, 1996
Affirmed
Peterson, Judge

St. Louis County District Court
File No. K2-94-101382

Hubert H. Humphrey, III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for Respondent)

Alan L. Mitchell, St. Louis County Attorney, James B. Florey, Assistant St. Louis County Attorney, St. Louis County Courthouse, 300 South Fifth Street, Virginia, MN 55792 (for Respondent)

Charles L. Hawkins, 2890 Metropolitan Centre, 333 South Seventh Street, Minneapolis, MN 55402 (for Appellant)

Considered and decided by Amundson, Presiding Judge, Norton, Judge, and Peterson, Judge.

U N P U B L I S H E D O P I N I O N

PETERSON , Judge
On appeal from convictions for theft by swindle and fraudulent title application, James Moehlenbrock argues the evidence was insufficient to support his convictions. He also contends the district court erred in (1) making evidentiary rulings and instructing the jury; (2) sentencing him for multiple theft by swindle offenses; (3) using the Hernandez method to calculate his sentence; and (4) denying his motion for a Schwartz hearing. We affirm.
D E C I S I O N
1. Moehlenbrock, the owner of Reliable Motors used car dealership, was convicted of seven counts of theft by swindle based on evidence regarding seven vehicle sales. Moehlenbrock argues the evidence was insufficient to support the convictions. When the sufficiency of the evidence is challenged, this court reviews
the record to determine whether the evidence, when viewed in a light most favorable to the conviction, was sufficient to permit the jurors to reach the verdict which they did.

State v. Webb , 440 N.W.2d 426, 430 (Minn. 1989). This court must assume "the jury believed the state's witnesses and disbelieved any evidence to the contrary." State v. Moore , 438 N.W.2d 101, 108 (Minn. 1989).
Minn. Stat. § 609.52, subd. 2(4) (1990) provides that one who "by swindling, whether by artifice, trick, device, or any other means, obtains property or services from another person" commits theft. Citing State v. Ulvestad , 414 N.W.2d 737, 740 (Minn. App. 1987), review denied (Minn. Jan. 15, 1988), Moehlenbrock contends that there can be no swindle unless the customer believed the false representation about a vehicle's mileage and relied on the false representation when deciding to purchase the vehicle. We disagree. Like the present case, Ulvestad involved the sale of used automobiles after the odometers were set back. Id. at 738-39. The defendant argued that there was insufficient evidence of belief in and reliance on the alleged misrepresentations. Id. at 740. Without addressing whether belief and reliance were elements of a theft by swindle, this court concluded that the evidence demonstrated belief in and reliance on the misrepresentations. Id. The Ulvestad opinion does not indicate that any issue regarding the elements of theft by swindle was raised. See id. The parties apparently agreed that belief and reliance were elements of theft by swindle. See id.
The origins of Minn. Stat. § 609.52, subd. 2(4) and case law interpreting the current statute and an earlier statute defining the crime of swindling demonstrate that belief and reliance are not elements of theft by swindle. In State v. Ruffin , 280 Minn. 126, 129, 158 N.W.2d 202, 205 (1968), the court explained that, in the adoption of the criminal code in 1963, various prior statutes pertaining to crimes such as larceny, embezzlement, obtaining property by false pretenses, and swindling were all designated as crimes of theft. In the criminal code, Minn. Stat. § 609.52, subd. 2(4) superseded Minn. Stat. § 614.11, which had previously defined the crime of swindling. Id. , 158 N.W.2d at 205. Under both versions of the statute, the essence "of the offense is the cheating and defrauding of another by deliberate artifice." Id. at 129-30, 158 N.W.2d at 205.
In State v. Cunningham , the court explained that Minn. Stat. § 614.11 had been enacted "'to codify, and at the same time to expand, the common law on the subject of "cheats."'" 257 Minn. 31, 37, 99 N.W.2d 908, 912 (1959) (quoting State v. Wilson , 72 Minn. 522, 525, 75 N.W. 715, 716 (1898)).
At common law cheating consisted of (1) the fraudulent taking of another's property, (2) by means of a false token, symbol, or device, (3) of such a nature that common prudence could not guard against it.

Id., 99 N.W.2d at 912. Minn. Stat. § 614.11 codified the first and third elements of the common law offense and expanded the common law by eliminating the requirement of a false token, symbol, or device. Id. at 37-38, 99 N.W.2d at 913.
The means used to effectuate a criminal intent to obtain the property of another differentiated the swindling statute from other theft-related statutes. Id. at 39, 99 N.W.2d at 914. It was not essential under the swindling statute "that any special confidence be reposed in the accused." Id. at 40, 99 N.W.2d at 914. Instead it was sufficient that, in obtaining the victim's property, some method was "used to dispel the victim's normal suspicion or caution." Id. , 99 N.W.2d at 914; see also State v. Lone , 361 N.W.2d 854, 858-60 (Minn. 1985) (theft by swindle statute intended to protect person's right to bargain based on true facts).
To prove a violation of Minn. Stat. § 609.52, subd. 2(4), it was only necessary to show that Reliable Motors obtained the property of another and, in doing so, employed some sort of trick to dispel the victim's normal suspicion or caution. It makes no difference that Reliable Motors may have been able to obtain the money of a victim without employing a trick or that a victim would have purchased a car even if the actual mileage had been known. The method Reliable Motors chose to use to obtain each victim's money included setting back the odometer or stating that the odometer mileage was actual when it was not. Minn. Stat. § 609.52, subd. 2(4) is intended to punish the use of such a method to obtain the victim's property regardless of the actual effect on the victim. Cf. Cunningham , 257 Minn. at 40, 99 N.W.2d at 914 (under prior swindling statute, it was sufficient that in obtaining victim's property, some method was used to dispel victim's normal suspicion or caution). It was not necessary for the state to prove that each victim believed that the mileage indicated on the odometer was correct and relied on the mileage indicated when deciding to purchase the vehicle.
Here, for three of the sales underlying Moehlenbrock's theft by swindle convictions, the state presented evidence that Reliable Motors represented to buyers that the vehicles' odometers showed actual mileage when in fact the mileage exceeded the odometers' mechanical limits. For the other four sales underlying Moehlenbrock's theft by swindle convictions, the state presented evidence that the odometers were rolled back on the cars while Reliable Motors owned the cars and that Reliable Motors represented that the odometers showed actual mileage. Misrepresenting or changing the mileage of the vehicles was a method used by Reliable Motors to dispel each victim's normal suspicion or caution about buying a used car. It is undisputed that Reliable Motors obtained money when it sold each of the seven vehicles. The evidence was sufficient to support Moehlenbrock's theft by swindle convictions.
Moehlenbrock argues that G.H. knew the odometer on the Blazer he purchased did not show actual mileage. But G.H. testified that he specifically asked whether the odometer reading of about 67,000 miles was correct and that Moehlenbrock stated the odometer reading was correct. The purchase agreement G.H. signed and brought to the credit union indicated 67,151 miles was actual. G.H. testified that when he returned to Reliable Motors to purchase the Blazer, Moehlenbrock indicated he wanted to correct the paperwork. G.H. testified he did not check the changes and did not realize until a few days later that the purchase agreement had been changed to show the Blazer's mileage was not actual. Although a title G.H. signed states the odometer reading is not the actual mileage, G.H. testified that he did not fill out the title and that he did not know how the mileage was represented on the title until he received a copy in the mail. Reliable Motors's records indicate it purchased the Blazer with 167,151 miles on it and then represented the mileage to be 67,234 miles and 67,151 miles.
Moehlenbrock argues M.S. signed a purchase agreement showing the mileage on the van she purchased was not actual. But M.S. testified that Moehlenbrock told her the odometer reading showed the actual mileage. M.S. admitted she signed a purchase agreement stating the mileage was not actual but testified that a secretary assured her that the procedure was customary when a vehicle came from another state and that the mileage would only be off by about 3 to 10 miles. An application for title signed by M.S. listed the van's mileage as 168,015 miles, but M.S. testified she did not write the number and did not know when it had been written on the document. Reliable Motors's records indicate it purchased the van with 167,957 miles on it and then represented the mileage to be 67,957 miles and 68,029 miles.
Moehlenbrock argues that a Reliable Motors employee told S.P. that the mileage on the van he purchased was not actual. S.P. testified that no one told him the mileage was not actual. The purchase agreement listed the mileage as 35,127 miles, and the odometer disclosure statement indicated the mileage was actual. Although the box on the certificate of title stating the mileage exceeded the odometer's mechanical limits was checked, S.P. did not recall the box being checked when he signed the title. Reliable Motors's records indicate that it purchased the van with 135,127 miles on it but then represented the mileage to be 35,127 miles.
Moehlenbrock argues that N.J. should have realized the odometer reading on the car he purchased was inaccurate because the blue-book value for the car was $4,800 and Reliable Motors sold it to him for $4,600. But the purchase agreement between Reliable Motors and N.J. indicated the odometer showed the car's actual mileage was 65,080. The person who sold the car to Reliable Motors indicated on a document filled out at the time of sale that the mileage was 80,430. That number was whited out and 65,080 was written over it. Also, a work order indicated that the car had been worked on when the mileage was 74,952.
Moehlenbrock argues that the inaccurate odometer reading on the car L.J. purchased was irrelevant because L.J. was satisfied with the car. He does not dispute that the odometer did not show the car's actual miles or that the purchase agreement between Reliable Motors and L.J. indicates the odometer showed actual mileage. A Reliable Motors work order indicates that the car's mileage was 85,321 on February 1, 1994. When L.J. later purchased the car, the mileage was listed as 79,418.
Regarding the sale to M.J., Moehlenbrock argues that if the mileage was misrepresented, the misrepresentation was made by the person who sold the car to Reliable Motors. But Reliable Motors's records indicate the odometer reading went backwards on two occasions while Reliable Motors owned the car.
Moehlenbrock argues H.H., not Reliable Motors, misrepresented the mileage on the Beretta she traded in. We disagree. When H.H. traded in the Beretta, the car had about 80,000 miles on it. When Reliable Motors sold the car, it listed its mileage as 48,745 miles. A Reliable Motors stock report listed the mileage as 82,494. Although the title signed by H.H. listed the car's mileage as 47,934 miles, H.H. testified that the mileage amount was not written on the title when she signed it and was not written in her handwriting.
2. Moehlenbrock argues the evidence was insufficient to support his convictions for fraudulent title application. Minn. Stat. § 168A.30, subd. 1 (1990) provides:
A person who with fraudulent intent uses a false or fictitious name or address, or makes a material false statement, or fails to disclose a security interest, or conceals any other material fact, in an application for a certificate of title or submits a false, forged, or fictitious document in support of an application for a certificate of title, shall be guilty of a felony. * * *

Moehlenbrock was charged with reference to Minn. Stat. § 609.05 (1990 & Supp. 1991), the aiding and abetting statute.
Moehlenbrock argues the fraudulent title application convictions relating to the trade-in by H.H. and the sale to N.J. should be reversed because the buyers obtained the titles. But H.H.'s testimony indicated that Reliable Motors filled in the incorrect mileage on the certificate of title used to transfer ownership of the Beretta from H.H. to Reliable Motors. Regarding the sale to N.J., there was evidence that Reliable Motors listed the incorrect mileage on the certificate of title used to transfer ownership from the previous owner to Reliable Motors and on the certificate of title Reliable Motors gave to N.J. Reliable Motors's conduct falls within the language in Minn. Stat. § 168A.30, subd. 1 that prohibits making a material false statement "in support of an application for a certificate of title."
Moehlenbrock argues the convictions relating to the sales to M.J. and L.J. should be reversed because there was no evidence of misrepresentation by Reliable Motors. Regarding the sale to M.J., the state presented evidence that Reliable Motors rolled back the odometer when the car had over 64,000 miles on it. The certificate of title used to transfer ownership from Reliable Motors to M.J. lists the mileage as 58,124 miles. Regarding the sale to L.J., the state presented evidence that Reliable Motors rolled back the odometer when the car had over 83,000 miles on it. The certificate of title used to transfer ownership from Reliable Motors to L.J. lists the mileage as 79,418 miles. The evidence was sufficient to support Moehlenbrock's convictions for fraudulent title application.
3. Moehlenbrock argues the district court deprived him of his right to present a defense by excluding evidence about the blue-book values of the vehicles. The sixth amendment grants a defendant the right to present a defense. Washington v. Texas , 388 U.S. 14, 18-19, 87 S. Ct. 1920, 1923 (1967). But
[a] criminal defendant's right to present evidence in his defense is limited by the rules of evidence, and there is no right to present irrevelvant evidence.

State v. Medibus-Helpmobile, Inc. , 481 N.W.2d 86, 91 (Minn. App. 1992), review denied (Minn. Mar. 19, 1992).
Rulings involving the relevancy of evidence are generally left to the sound discretion of the trial court. * * * The basic requisite for the admissibility of any evidence is that it be competent and relevant. The threshold determination of relevance turns on whether the evidence logically or reasonably tends to prove or disprove a material fact in issue, or tends to make such a fact more or less probable, or affords the basis for or supports a reasonable inference or presumption regarding the existence of a material fact.

State v. Horning , 535 N.W.2d 296, 298 (Minn. 1995) (citations omitted).
Moehlenbrock argues he should have been allowed to introduce evidence of each vehicle's blue-book value to show that the purchase prices were appropriate for high-mileage vehicles and, therefore, he lacked any intent to defraud or swindle the customers. But in Lone , the supreme court concluded that theft by swindle may occur even if the victim does not suffer a pecuniary loss. 361 N.W.2d at 858-60. The court rejected appellant's argument that for a theft by swindle to occur, the amount the victim paid must exceed the value of what the victim received. Id. The court explained:
In theft by swindle, value becomes irrelevant. In this case all of the victims were cheated, even though some may have a functioning water removal system. They were cheated because through CSW's misrepresentation of the danger of structural damage, the victims lost their chance to bargain on the basis of the true condition of their homes.

Id. at 860; see also Ulvestad , 414 N.W.2d at 739-40 (applying Lone rationale in odometer tampering case). The district court properly excluded the specific evidence regarding each vehicle's blue-book value.
4. The district court has discretion to refuse to give a requested jury instruction, "and no error results if no abuse of discretion is shown." State v. Blasus , 445 N.W.2d 535, 542 (Minn. 1989). When reviewing jury instructions, this court must view the instructions "in their entirety to determine whether they fairly and adequately explained the law of the case." State v. Flores , 418 N.W.2d 150, 155 (Minn. 1988). The trial court has "'considerable latitude'" in selecting the language to use in jury instructions. State v. Gray , 456 N.W.2d 251, 258 (Minn. 1990) (quoting Alholm v. Wilt , 394 N.W.2d 488, 490 (Minn. 1986)), cert. denied , 498 U.W. 1030 (1991).
Moehlenbrock requested the district court instruct the jury that
one cannot commit a swindle if he honestly believes that what he is saying is true. If you find a defendant reasonably and honestly believed the statement to be true, then he cannot be convicted on the basis of that statement, even if it is false.

See Lone , 361 N.W.2d at 857-58 (allowing this instruction). Instead, the district court instructed the jury as follows:
The essence of a swindle is the cheating of another person by a deliberate artifice or scheme. It is not necessary that the buyer had a special confidence in defendant. A swindle can be accomplished by a false representation. A false representation is made when the person knows or believes the representation to be false, the person intends the victim to believe the representation, and the victim believes the representation and acts accordingly.

Moehlenbrock argues the district court erred by declining to specifically instruct the jury that Moehlenbrock did not commit a swindle if he honestly and reasonably believed that the representations he made were true. We disagree. The district court instructed the jury that a swindle can be accomplished by a false representation and that a false representation is made when the defendant knows or believes the representation to be false. The district court's instructions fairly and adequately explained that no false representation is made when the the person making the representation honestly and reasonably believes that the representation is true. The district court did not abuse its discretion in selecting the language to use in instructing the jury regarding false representation.
5. Moehlenbrock argues that the seven theft by swindle convictions were part of a single behavioral incident and, therefore, the district court erred in sentencing him for all seven offenses. Minn. Stat. § 609.035 (1990) 1 provides:
[I]f a person's conduct constitutes more than one offense under the laws of this state, the person may be punished for only one of the offenses * * *.

The statute prohibits multiple sentences for conduct constituting more than one offense when the following elements are present:
1. The conduct involved must be motivated by a desire to obtain a single criminal objective.

2. The offenses must occur at substantially the same time and place, arise in a continuous and uninterrupted course of conduct and manifest an indivisible state of mind.

State v. O'Hagan , 474 N.W.2d 613, 622 (Minn. App. 1991), review denied (Minn. Sept. 25, 1991).
In this case, neither element was present. The seven vehicle sales were not motivated by a single criminal objective. See State v. Eaton , 292 N.W.2d 260, 267 (Minn. 1980) (rejecting argument that two theft by swindle convictions, which arose from single scheme to cheat victims, were motivated by a single criminal objective when defendant planned and executed thefts of two different checks at two separate times; plan to swindle as much as possible too broad to be single criminal objective within meaning section 609.035). The sales were not part of a single course of conduct because they occurred at different times and involved different vehicles and different buyers. See Ulvestad , 414 N.W.2d at 741 (vehicle sales that occurred at different times and involved different vehicles were not single course of conduct). The district court properly sentenced Moehlenbrock for all seven theft by swindle convictions.
Moehlenbrock also contends the district court abused its discretion in using the Hernandez method to calculate his sentence. When a district court sentences a defendant on the same day for multiple offenses that were not part of the same behavioral incident, the court may consider the first convictions in determining the defendant's criminal history score for the subsequent convictions. State v. Hernandez , 311 N.W.2d 478, 479-81 (Minn. 1981). Use of the Hernandez method does not constitute a departure under the sentencing guidelines. See State v. Pittel , 518 N.W.2d 606, 608 (Minn. 1994) (sentencing court free to use Hermandez method).
The decision whether to depart from the presumptive sentence rests within the district court's broad discretion. State v. Kindem , 313 N.W.2d 6, 7 (Minn. 1981). Generally, in determining whether to depart, the district court must decide
whether the defendant's conduct was significantly more or less serious than that typically involved in the commission of the crime in question.

State v. Broten , 343 N.W.2d 38, 41 (Minn. 1984). Only in a "rare" case will a reviewing court reverse a district court's imposition of the presumptive sentence. Kindem , 313 N.W.2d at 7.
The district court imposed seven concurrent sentences for the theft by swindle convictions and sentenced Moehlenbrock to an executed term of 41 months. The district court did not err in determining that Moehlenbrock's conduct was not significantly less serious than that typically involved in theft by swindle offenses and imposing the presumptive term. See Ulvestad , 414 N.W.2d at 739, 741 (upholding imposition of multiple sentences in odometer tampering case).
6. Moehlenbrock finally argues that the district court erred in denying his request for a hearing pursuant to Schwartz v. Minneapolis Suburban Bus Co. , 258 Minn. 325, 328, 104 N.W.2d 301, 303 (1960).
While Schwartz hearings should be liberally granted, the trial court exercises fairly broad discretion in determining whether to grant one.

State v. Mings , 289 N.W.2d 497, 498 (Minn. 1980).
Moehlenbrock alleged a juror committed three acts of misconduct. First, the juror failed to disclose that two of his brothers had purchased cars from Moehlenbrock and that one of the brothers had a dispute with Moehlenbrock about repair costs. During voir dire, jurors were asked whether they knew Moehlenbrock or whether they or their spouses had ever purchased a used vehicle, either from Moehlenbrock or from someone else. They were not asked whether any members of their families had purchased a vehicle from Moehlenbrock. When a juror's failure to disclose facts that might indicate bias results from defense counsel's failure to ask the appropriate questions to elicit the information, the district court has discretion to deny a Schwartz hearing. See State v. Stofflet , 281 N.W.2d 494, 498 (Minn. 1979) (affirming denial of Schwartz hearing to determine juror's possible bias towards defense attorney when defense counsel did not ask juror during voir dire about her prior contacts with him).
The other two alleged acts of misconduct were set forth in affidavits submitted by William Plattner and Dale Puttonen. The district court specifically found the affidavits lacked credibility. When deciding whether to grant a Schwartz hearing, it is the district court's role to assess the credibility of the evidence supporting defendant's request. See State v. Larson , 281 N.W.2d 481, 484 (Minn. 1979) (when deciding whether to grant Schwartz hearing, district court need not blindly accept defense counsel's assertions). The district court's denial of Moehlenbrock's request for a Schwartz hearing was not an abuse of discretion.
Affirmed.


1 Minn. Stat. § 609.035 was amended in 1993 and 1994, but the amendments do not affect the application of the statute in this case. See 1993 Minn. Laws ch. 326, art. 4 §(adding two sections to list of excepted sections); 1994 Minn. Laws ch. 615, § 23 (adding subdivision concerning sentencing for listed traffic and related offenses).