This opinion will be unpublished and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
State of Minnesota,
Harry NMN Maddox, III,
Filed September 17, 1996
Anoka County District Court
File No. K99512227
Hubert H. Humphrey III, Attorney General, Suite 1400, NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for Respondent)
Robert M.A. Johnson, Anoka County Attorney, M. Katherine Doty, Assistant County Attorney, Anoka County Government Center, 2100 Third Avenue, 7th Floor, Anoka, MN 55303 (for Respondent)
John M. Stuart, State Public Defender, Susan J. Andrews, Assistant State Public Defender, 2829 University Avenue S.E., #600, Minneapolis, MN 55414 (for Appellant)
Considered and decided by Lansing, Presiding Judge, Kalitowski, Judge, and Willis, Judge.
U N P U B L I S H E D O P I N I O N
Appellant Harry Maddox III challenges his conviction for theft by swindle in violation of Minnesota Statutes section 609.52, subdivision 2(4) (1994). Maddox contends the evidence is insufficient to sustain the conviction because a theft by swindle conviction cannot be upheld where the victim fails to exercise ordinary prudence. We affirm.
D E C I S I O N
Our review on a sufficiency of the evidence appeal is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in a light most favorable to the conviction, sufficiently supports the verdict. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). A reviewing 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).
The evidence presented at trial included: (1) an Oasis Market cashier identified Maddox as the person who passed a money order that had been altered from "$1" to "$100"; (2) after passing the money order at Oasis, Maddox left behind a Rider trucking book; (3) a videotape from Oasis apparently shows Maddox passing the money order; (4) a Brooks Food Market cashier identified Maddox as the person who passed a second money order that had been altered from "$2" to "$200"; (5) the Brooks cashier also identified Maddox in a police line-up; and (6) police arrested Maddox shortly after he returned to Oasis to retrieve the Rider trucking book. When viewed in a light most favorable to the prosecution, the evidence sufficiently supports the conviction.
While Maddox characterizes his appeal as "sufficiency of the evidence," the argument he articulates is that he cannot be guilty of theft by swindle because the cashiers failed to exercise ordinary prudence in accepting a money order. Maddox stresses that neither cashier required him to produce identification and that both cashiers accepted an altered money order despite suspicions regarding validity. Maddox cites State v. Cunningham, 257 Minn. 31, 38, 99 N.W.2d 908, 913 (Minn. 1959), a case under the old theft by swindle statute, where the supreme court incorporated the common law requirement that theft by swindle only occurs when "ordinary prudence cannot guard against it." Accordingly, Maddox contends that a theft by swindle conviction cannot stand unless the victim exercises ordinary prudence. We disagree.
In cases decided since the enactment of the modern theft statute, the supreme court has determined that ordinary prudence by the victim is no longer required to support a theft by swindle conviction. In State v. Ruffin, 158 N.W.2d 202, 205 (Minn. 1968) (quoting Pirsig, Proposed Revision of the Minnesota Criminal Code, 47 Minn. L. Rev. 417, 437), the supreme court acknowledged that the modern theft by swindle provision protects "[g]ullible people [who] need as much, if not more, protection against swindlers than do others endowed with greater caution." Similarly, in State v. Hanson, 285 N.W.2d 483, 486 (Minn. 1979), the supreme court stated that a victim need not exhibit ordinary prudence. The defendant in Hanson challenged his theft by swindle conviction by arguing the district court erred in eliminating the jury instruction requirement that "the trick must be of such a nature that ordinary prudence cannot guard against it." Id. The court noted that the legislature restructured the Criminal Code following the Cunningham decision and concluded that "[n]o additional instruction on the victim's prudence is required, and none should be given." Id.
Because both Hanson and Ruffin reject the argument raised by Maddox, we affirm his conviction.