may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
Lexy Clayton Dove,
Filed March 25, 1997
Hennepin County District Court
File No. 95107110
Hubert H. Humphrey III, Attorney General, 445 Minnesota Street, Suite 1400, St. Paul, MN 55101 (for Respondent)
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, Susan K. Maki, Assistant State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for Appellant)
Considered and decided by Lansing, Presiding Judge, Crippen, Judge, and Mulally, Judge.[*]
This appeal challenges the sufficiency of the evidence supporting a conviction for swindle in violation of Minn. Stat. § 609.52, subd. 2(4) (1996). Because the record contains evidence sufficient to support the jury's finding of guilt beyond a reasonable doubt, we affirm.
The next day Perry agreed to meet with Dove and Maria so they could return the money they had borrowed. Dove told Perry that he had a $900 cashier's check and that, if Perry would give him $550 in cash, he would give Perry the check to cover the loan from the previous day. Perry gave Dove $550 in cash, and Dove gave Perry the cashier's check. Before Perry had cashed the check, Dove requested that he return it and also told Perry that he needed additional cash. Perry returned the check and gave Dove an additional $150. Perry testified that at the time Dove asked him to return the $900 cashier's check they were in a car, and Perry saw a shiny object on Dove's lap that he assumed to be a knife.
Thereafter Dove continued to call Perry, but Perry refused to meet him again. A couple weeks later, Perry's roommate agreed to meet Dove. Dove told the roommate that he had a cashier's check to repay Perry, but that it was locked in a vault and he needed another $300 to access the check. Perry and his roommate contacted the Brooklyn Center Police Department. The Department advised them to set up another meeting with Dove, which they did. Dove was arrested and charged with swindle.
In addition to testimony on these transactions, the state presented evidence that Dove had engaged in similar activity with a separate individual during the same time period. Dove had persuaded that individual to give him over $3000 in a series of requests premised on the idea that Dove needed additional cash in order to secure the return of the money already lent.
A person has committed theft when "by swindling, whether by artifice, trick, device, or any other means, [he] obtains property or services from another person." Minn. Stat. § 609.52, subd. 2(4) (1996). Dove's conviction for swindle requires proof that he obtained possession of Perry's money with the intention of keeping it, that Dove's act was a swindle and Perry gave the money to Dove because of the swindle, and that these events took place at a particular time and place. See 10 Minnesota Practice CRIMJIG 16.08 (1990).
A large range of activities could potentially constitute swindle. The law contemplates no single definition. State v. Ruffin, 280 Minn. 126, 130, 158 N.W.2d 202, 205 (1968). "[I]t may be fairly said that the statute punishes any fraudulent scheme, trick, or device whereby the wrongdoer deprives the victim of his money or property by deceit or betrayal of confidence." Id.
Dove argues on appeal that Perry was not swindled because he was given a cashier's check for the amount of money Dove had borrowed and later voluntarily returned the check to Dove before cashing it. Dove's argument is without merit.
Even if Perry once had possession of the amount Dove owed to him in the form of a cashier's check and then returned the check at Dove's request, this fact does not mean that the check's worth was a gift rather than a swindle. The law does not require that a jury's conviction be based on a brief snapshot of one exchange when the state's evidence shows a clear pattern and series of actions amounting to a scheme. Rather, the jury is allowed to consider all the evidence, including "the facts surrounding the transaction" to determine whether a swindle has occurred. State v. Saybolt, 461 N.W.2d 729, 734 (Minn. App. 1990) review denied (Minn. Dec. 17, 1990). The complaint alleges that Dove swindled Perry "on or about" November 15, 1995. Ordinarily, the date is not an essential element of the offense. State v. Becker, 351 N.W.2d 923, 927 (Minn. 1984) (citations omitted). Dove has not demonstrated any prejudice resulting from the complaint's specifying a particular date rather than a range of dates. The complaint provided specific notice of the actions alleged to constitute the swindle, and the jury was not precluded from considering evidence of the entire transaction.
Based on the evidence presented at trial, the jury could have determined beyond a reasonable doubt that Dove was involved in a fraudulent scheme and committed theft by swindle against Perry. On several occasions Dove requested cash from Perry in order to secure the return of money he had already borrowed. He had perpetrated a similar scheme against a separate victim. Dove used a false name when dealing with Perry and his other victim. In addition the evidence relating to the return of the $900 cashier's check is contradictory. Perry testified that the check was "unsigned," suggesting that he believed it to be worthless without Dove's cooperation. Perry further testified that he felt "threatened" by Dove when Dove asked for the return of the check and that he thought Dove had a switchblade. In response to police questioning, Dove himself stated that he never gave the $900 cashier's check to Perry: "Q: You asked for the cashier's check back from [Perry]? A: He never had it."
Based on the testimony at trial and the evidence in the record, the jury could have concluded beyond a reasonable doubt that Dove perpetrated a fraudulent scheme to deprive Perry of his money.
[ ]* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.