This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

CX-96-330

State of Minnesota,

Respondent,

vs.

Robert John Franke,

Appellant.

Filed January 14, 1997

Affirmed as modified

Willis, Judge

Olmsted County District Court

File No. K795801

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

Raymond F. Schmitz, Olmsted County Attorney, Olmsted County Courthouse, 151 Fourth Street SE, Rochester, MN 55904 (for Respondent)

Duane A. Kennedy, 724 First Avenue SW, Durst Building, Suite 4, Rochester, MN 55902 (for Appellant)

Considered and decided by Crippen, Presiding Judge, Toussaint, Chief Judge, and Willis, Judge.

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

WILLIS, Judge

A jury found appellant Robert Franke guilty of receiving stolen property with a value in excess of $2500, in violation of Minn. Stat. SSSS 609.53, subd. 1, 609.52, subd. 3(2). The district court stayed imposition of sentence and placed appellant on probation for 10 years. The district court also ordered appellant to pay restitution in the amount of $15,566.50. Appellant claims that the evidence was insufficient to support his conviction and that the district court abused its discretion by awarding excessive restitution. We affirm the conviction, but modify the amount of restitution.

FACTS

On February 10, 1995, Michael Stevens and Richard Johnson each sold 12 head of Holstein heifers to a man who claimed to be "Mike Snyder." The heifers sold by Stevens belonged to Marshall Johnson, Richard Johnson's brother. Marshall Johnson was out of the state and left Stevens, his son-in-law, in charge of his business affairs. Richard Johnson and Snyder agreed on a price of $1100 per head, a total of $13,200. Stevens and Snyder agreed on a price of $1060 per head, a total of $12,720. One of the heifers sold by Stevens was recovering from ringworm, which had left noticeable marks around its eyes. All of the heifers had identifying ear tags and vaccination tags that are difficult to remove and are not reusable. Snyder's checks were dishonored, and he was never located.

Three days later, a local farmer, Robert Huntington, purchased 11 Holstein heifers from appellant, including one with ringworm, after selecting them from a group of 24 or 25 heifers on appellant's farm. Huntington immediately sold 10 of the heifers at auction, where a veterinarian recorded the vaccination tag numbers, including one that matched that of a heifer sold by Stevens. Huntington kept the heifer with ringworm, which did not sell at auction.

On February 17, Stevens went to the Lanesboro Sales Auction to attempt to locate Marshall Johnson's stolen heifers. At the auction, Stevens recognized one of the stolen heifers from its physical characteristics and plastic ear tag and learned from the person who had brought the heifer to Lanesboro that he had purchased it at the Lewiston Auction. On February 18, Stevens, in the presence of Dodge County Sheriff's Deputy Mark Lamphere, contacted the Lewiston Auction and discovered that appellant had sold the heifer in question on the previous day. Huntington, who had sold some unrelated cattle to Stevens, arrived at Marshall Johnson's farm on February 18 to deliver them. Upon overhearing Stevens and the deputy discussing appellant, Huntington stated that he had purchased 11 heifers from appellant on February 13. Huntington added that he had resold all of the heifers except one with ringworm. Stevens visited Huntington's farm and recognized the heifer with ringworm as one of Marshall Johnson's heifers.

Deputy Lamphere, Stevens, Richard Johnson, and Joe Gardner from the Olmsted County Sheriff's Department went to appellant's farm. From physical characteristics and ear tags, Stevens and Richard Johnson recognized 11 heifers at appellant's farm as being among those that were stolen. Seven of the heifers at appellant's farm had ear tag numbers that matched the numbers in Stevens's notebook. Appellant claimed that he had applied all the tags himself, but was unable to produce any written records. Detective Gardner then arranged for the cattle to be seized and transported to Marshall Johnson's farm pending the outcome of criminal proceedings.

D E C I S I O N

1. Sufficiency of the Evidence.

Appellant first claims that the evidence was insufficient to support his conviction. Specifically, appellant argues that the identification evidence was circumstantial and insufficient as a matter of law.

Where there is a challenge to the sufficiency of the evidence, our review on 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, was sufficient to permit the jurors to reach the verdict [that] they did.

State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). Further, a reviewing court must assume that "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).

There was, contrary to appellant's assertion, direct evidence that appellant was in possession of the 11 stolen heifers that were recovered. See State v. Ford, 539 N.W.2d 214, 225 (Minn. 1995) (noting that testimony of a witness regarding the fact to be proved is direct evidence), cert. denied, 116 S. Ct. 1362 (1996). Stevens and Richard Johnson both testified that they recognized all 11 heifers on appellant's farm, in part by their physical characteristics, as being among the heifers that were stolen. Identification was the ultimate contested fact. Furthermore, the visual identification testimony was buttressed by other evidence: veterinary and plastic ear tags matched the tag numbers that Stevens had recorded in his notebook. Viewed in a light most favorable to the conviction, the direct identification evidence overwhelmingly supports the jury's verdict.

Furthermore, appellant was convicted of the crime of receiving stolen property with a value in excess of $2500. Based on expert testimony at trial, the value of any four of the stolen heifers easily exceeded $2500. If Stevens or Richard Johnson had been able to identify only four of the cattle, the evidence still would have been sufficient to permit the jurors to convict.

There was, in addition, circumstantial evidence that appellant received the 13 unrecovered heifers.

Where a conviction is based on circumstantial evidence, the verdict will be sustained on appeal when the reasonable inferences from such evidence are consistent only with defendant's guilt and inconsistent with any rational hypothesis except that of guilt.

State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988). Of the 13 unrecovered heifers, the state claimed that 11 were bought from appellant by Huntington and that appellant himself disposed of the remaining two. In view of the direct evidence tracing 11 of the heifers to appellant, and the fact that the heifer with ringworm was among the group of 11 that appellant sold to Huntington, the reasonable inferences from the circumstantial evidence are consistent with the conclusion that appellant had been in possession of all 24 heifers and inconsistent with any other rational hypothesis.

2. Restitution.

"The [district] court has broad discretion in imposing restitution." State v. Olson, 381 N.W.2d 899, 900 (Minn. App. 1986). Restitution is governed by statute. Minn. Stat. § 611A.045, subd. 1 (1996), requires that the district court consider "the amount of economic loss sustained by the victim as a result of the offense" and "the income, resources, and obligations of the defendant." Further, Minn. Stat. § 611A.045, subd. 3 (1996), requires the prosecution to show, by a preponderance of the evidence, the loss sustained by a victim as a result of the offense and the appropriateness of a particular type of restitution. Absent an abuse of discretion, this court will not disturb the district court's imposition of restitution. State v. Jola, 409 N.W.2d 17, 20 (Minn. App. 1987).

The district court determined the fair market values of the heifers and calculated the victims' losses, subtracting resale prices from fair market values to arrive at appropriate restitution for the heifers that were recovered and resold and ordering restitution at full fair market value for the heifers that were not recovered. Miscellaneous costs for trucking, milking, veterinary bills, and labor were properly included in the district court's restitution order. See Minn. Stat. § 611A.04 (providing that restitution may include any out-of-pocket losses resulting from the crime).

The district court found that Richard Johnson's heifers each had a value of $975, a number between the Snyder's "thief's price" of $1100 each and the $850 each for which Johnson resold the four heifers that were returned to him. The district court acted within its discretion in establishing fair market values and in concluding that Richard Johnson resold at a price below fair market value because he had to sell quickly to cover his losses.

The district court determined that Marshall Johnson's heifers had a fair market value of $880 each, except for one of lesser quality, which the court found to have a fair market value of $776.50. Those determinations were within the court's discretion. Because Marshall Johnson resold the heifers that were returned to him, the district court properly subtracted the resale prices from fair market values in computing the restitution owed, but the court neglected to subtract the resale price for the lowest-valued heifer. The restitution ordered to Marshall Johnson should, therefore, be reduced by $472.50.

Finally, appellant argues that he should not have to pay restitution for the heifer with ringworm because it remained in Huntington's possession. Huntington was a bona fide purchaser for value and, therefore, would have an equitable defense to an action by the original owner to recover the heifer with ringworm. See generally Restatement of Restitution § 13 illus. 1 (1937) (stating that where goods obtained by fraud are sold to bona fide purchaser for value, fraud victim is not entitled to restitution from bona fide purchaser).

The district court acted within its broad discretion in establishing fair market values for the victims' stolen property and in ordering restitution for the heifer in Huntington's possession. With the modification noted, the district court's restitution order is affirmed.

Affirmed as modified.