may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Rick Steven Wallat,
Filed April 22, 1997
Affirmed in part, vacated in part, and remanded
Pine County District Court
File No. K794846
Michael F. Cromett, Asst. Public Defender, E-1314 First National Bank Bldg., St. Paul, MN 55101 (for Appellant)
Hubert H. Humphrey III, Attorney General, Carol J. Bennett, Asst. Attorney General, 1400 NCL Tower, 445 Minnesota St., St. Paul, MN 55101 (for Respondent)
John K. Carlson, Pine County Attorney, Courthouse, 315 Sixth St., Pine City, MN 55063 (for Respondent)
Considered and decided by Parker, Presiding Judge, Huspeni, Judge, and Harten, Judge.
Appellant was convicted of and sentenced for felony theft by swindle. He challenges the jury instructions and the sufficiency of the evidence, alleges deprivation of due process and prosecutorial misconduct, and challenges the conditions of probation. Because we hold that the jury instruction stated the applicable and correct law, that the evidence supports appellant's conviction, that there was no deprivation of constitutional rights, and that the prosecutor did not commit misconduct, we affirm appellant's conviction. However, because the statutes prohibit conditioning probation on reimbursement of the public defender fund or of the county for jury expenses, we vacate the orders imposing those conditions of appellant's probation and remand for findings on the amount owed for appellant's defense.
Appellant attempted to cash a fifth check on Sunday night. Unbank employees refused the check because they noticed appellant had exceeded both his normal check-cashing pattern and the $7,500 thought to be in his account. Appellant became angry and threatened that Unbank would not see its money. The following day, he stopped payment on the four checks that had been accepted; his account did not have sufficient funds to cover them in any event.
Unbank turned the matter over to law enforcement, which charged appellant with violating first: Minn. Stat. § 609.52, subds. 2(3), 3(2) (1994), theft by check of over $2,500; second: Minn. Stat. § 609.52, subds. 2(4), 3(2) (1994), theft by swindle of over $2,500; third: Minn. Stat. § 609.535, subds. 2, 2a(a)(1) (1994), issuance of a dishonored check; and fourth: (by amendment to the complaint) Minn. Stat. § 609.52, subds. 2(1), 3(2) (1994), felony theft of over $2,500.
The jury found appellant guilty on all four counts. He was sentenced on the theft by swindle offense.
Where instructions fairly and correctly state the applicable law, an appellate court will not grant a new trial. Alevizos v. Metropolitan Airports Comm'n, 452 N.W.2d 492, 501 (Minn. App. 1990), review denied (Minn. May 11, 1990). With reference to theft by check and theft by swindle, appellant challenges the instruction that the state did not have to prove beyond a reasonable doubt that appellant intended permanently to deprive Unbank of its property. We find no merit in this challenge.
Minn. Stat. § 609.52, subd. 2(1) provides that one who takes another's property with the intent permanently to deprive the owner commits theft. Minn. Stat. § 609.52, subd. 2(3)(a), defining theft by check, and Minn. Stat. § 609.52, subd. 2(4), defining theft by swindle, do not specify whether the intended deprivation is temporary or permanent. While intent permanently to deprive is an element of subpart (1), it is not a part of subparts (3)(a) and (4). To accept appellant's argument that an instruction that intent permanently to deprive is an essential element of subparts (3)(a) and (4), we would need to read language into the statute. This court is prohibited from adding words to a statute and cannot supply what the legislature either purposely omitted or inadvertently overlooked. Ullom v. Independent Sch. Dist. No. 112, 515 N.W.2d 615, 617 (Minn. App. 1994).
Appellant argues that because Minn. Stat. § 609.52, subd. 2(5) (1994) provides that one who issues a bad check or swindles "with intent to exercise temporary control only" commits theft if one of three conditions is met, an intent permanently to deprive must be read into subparts (3)(a) and (4). We are not persuaded. Various provisions of a statute must be read in light of one another and effect given to all its parts. Van Asperen v. Darling Olds, Inc., 254 Minn. 62, 73-74, 93 N.W.2d 690, 698 (1958).
Subpart 1, the general provision on felony theft, specifies intent permanently to deprive; subparts (3)(a) and (4) particularize the conduct needed for certain types of theft and do not include intent permanently to deprive, subpart (5) provides the conditions under which the conduct particularized in the previous subparts committed with the intent to deprive only temporarily qualifies as theft. With reference to subpart (1), the jury was instructed that the state had to prove appellant had an intent permanently to deprive Unbank; with reference to subparts (3)(a) and (4) the jury was instructed that the state did not need to prove intent permanently to deprive. Because this instruction fairly and correctly stated the applicable law, we see no error.
We will not disturb the verdict if the jury, acting with due regard for the presumption of innocence and for the necessity of overcoming it by proof beyond a reasonable doubt, could reasonably conclude that a defendant was proven guilty of the offense charged.
State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).
Appellant claims there is no evidence that at the time he cashed the checks he had the requisite intent to defraud Unbank. We disagree. Appellant testified at trial that he knew he did not have the requisite funds in any bank account at the time he wrote the checks, that he intended to cover the checks by money he won gambling, and that he was prevented from winning money at gambling when Unbank refused his fifth check. His claimed reliance on his ability to make good on the checks he wrote with winnings from gambling is both circular and singularly unpersuasive.
A. Theft by Check and Issuing Dishonored Checks
At the time appellant issued the checks, he knew that he could not order their payment because there were insufficient funds in his accounts. Thus, there was evidence on which the jury could reasonably have found that appellant was guilty of theft by false representation, specifically issuing checks.
Similarly, intent to issue a dishonored check can be inferred from a showing that the check was not honored followed by the issuer's failure to make the check good. Minn. Stat. § 609.535, subd. 3 (1994); State v. Neuman, 392 N.W.2d 706, 708 (Minn. App. 1986). Evidence showed that appellant's checks would not have been honored because of insufficient funds, that they were not honored because he stopped payment, and that after being notified appellant failed to make the checks good. The jury's verdict that appellant was guilty of issuing dishonored checks was supported by the evidence.
B. Theft by Swindle
A conviction for theft by swindle requires something more than issuing a check with insufficient funds. See State v. Cunningham, 257 Minn. 31, 38, 99 N.W.2d 908, 913 (1959). Evidence showed that appellant used the name of Unbank's vice-president to persuade tellers that she permitted him to cash checks for more than $1,000 per day; he wrote "per Deanna Moose" on the checks. Deanna Moose, when asked "Did you ever tell [appellant] * * * go ahead and just put per Deanna Moose on the check?" testified, "No * * * Nope, I never told him to put my initials on the check." She said she had not known of appellant's practice until she saw the checks after he stopped payment. This testimony could have convinced the jury that by writing "per Deanna Moose" on his checks, appellant obtained property from another person by trick or device and therefore committed theft by swindle.
C. Felony Theft
Appellant argues that there was no evidence showing two elements of the crime of felony theft: that he took the money without claim of right and without Unbank's consent. Appellant's subjective statements that he intended the checks be paid are not dispositive of intent: intent can be inferred from the dishonoring and subsequent failure to make good a check. Minn. Stat. § 609.535, subd. 3; Neuman, 392 N.W.2d at 708. Appellant had no means of repaying the money and no claim of right to it.
Appellant argues that Unbank consented to his taking the money when they handed it to him in exchange for his checks. However, Unbank employees testified that they gave the money on the belief and understanding that appellant would make the checks good and that Unbank never consented to giving appellant $4,000 in exchange for nothing. The evidence supports a verdict that appellant was guilty of felony theft.
3. Due Process and a Fair Trial
Appellant contends that because the prosecutor asked him questions about his income from gambling on which he took the Fifth Amendment, he was denied due process and a fair trial. We disagree.
Appellant's first argument, that questions as to his profits and losses from gambling were outside the scope of the direct examination, is without merit. Appellant testified on direct examination that in 1994 and 1995 he had funds available to cover checks and also testified about his other "job" playing Black Jack. Therefore, questions on cross-examination on whether his net profit from Black Jack would have sufficed to cover the $4,000 in checks to Unbank were not outside the scope of direct examination.
Appellant claims that his answers regarding his second job could have furnished a link in the chain of evidence needed to prosecute him for criminal tax violation, and cites Hoffman v. United States, 341 U.S. 479, 71 S. Ct. 814 (1951), to support his argument. Appellant's reliance on Hoffman is misplaced because the individual in that case was a "known gangster" whose very occupation involved evasion of federal criminal laws. Id. at 487-88, 71 S. Ct. at 819. In this case the trial court properly allowed questioning as to the extent of appellant's gambling income (not an illegal activity in and of itself) during a month when he alleged he had funds available to cover bad checks.
Appellant also claims that the prosecutor prejudiced him by asking questions on which appellant took the Fifth Amendment because appellant then appeared to the jury to be "hiding behind the protection of the Fifth Amendment." Appellant's reliance on State v. Mitchell, 268 Minn. 513, 130 N.W.2d 128 (1964), cert. denied, 380 U.S. 984, 985 (1965), to support this argument is misplaced. Mitchell involved calling a witness who was certain to take the Fifth Amendment when "the only purpose of calling him was to discredit defendant with the jury." Id. at 515, 130 N.W.2d at 130. Appellant is not entitled to a new trial on the basis of a prejudiced jury.
4. Prosecutorial Misconduct
"The prosecutor is allowed to explore discrepancies in testimony and the possible prejudice or bias of all witnesses, including the defendant." State v. McDaniel, 534 N.W.2d 290, 293 (Minn. App. 1995) (citing State v. Morgan, 235 Minn. 388, 392, 51 N.W.2d 61, 63 (1952)), review denied (Minn. Sept. 20, 1995). After appellant's answer to a question directly contradicted the answer given by other witnesses to the same question, the prosecutor asked appellant if the other witnesses were lying. He answered that they were lying. This was no more than the exploration of discrepancies in testimony allowed in McDaniel.9 See id. (no misconduct where prosecutor questioned defendant as to discrepancies in testimony with other witnesses).
Appellant also asserts that during trial the prosecutor used information from appellant's public defender eligibility hearing, thus violating the statute and committing misconduct. We find no error. There was no reference to the eligibility hearing or to anything appellant said during that hearing; appellant's own testimony at trial provided the basis for the prosecutor's questions on appellant's profits, losses, and financial obligations. Although information from an inquiry into eligibility for a public defender is confidential pursuant to Minn. Stat. § 611.17 (Supp. 1995), the fact that some questions on these topics had been asked at the eligibility hearing did not mean that the entire topic was off limits to the prosecutor during trial.
5. Errors in Probation Conditions
Appellant's probation was conditioned on his reimbursing the public defender fund $1,000 and reimbursing Pine County $1,533.66 for the jury-related expenses of the trial. Reimbursement of costs for public defender expenses may not be made as a condition of probation. Minn. Stat. § 611.35, subd. 1 (Supp. 1995). Because the trial court had no authority to condition appellant's probation on either his reimbursement of the public defender fund or his repayment of jury expenses, we vacate those conditions.
The court does have authority, however, to require appellant, contingent on his ability to pay, to reimburse "the actual costs to the governmental unit of providing the services of the public defender * * *." Minn. Stat. § 611.35, subd. 1. We remand for a calculation of those costs and an order requiring appellant to pay the appropriate amount independent of his probation status. Finally, the trial court had no authority to assess jury expenses against appellant. Minn. Stat. § 631.48 provides authority to assess the costs of prosecution, but the costs of prosecution do not include jury expenses. See State v. Niemczyk, 400 N.W.2d 401, 404 (Minn. App. 1987) (assessment for costs of prosecution may include costs of discovery, witness fees, and travel expenses, but may not punish defendant for going to trial).
Affirmed in part, vacated in part, and remanded.
[ ]1Appellant concedes that Unbank has a civil cause of action against him for the $4,000 given in exchange for the checks on which he stopped payment.
[ ]2In compliance with Minn. Stat. § 609.035 (1994), the trial court sentenced on only one offense noting that all four counts related to the same behavioral incident. Minn. Stat. § 609.04 (1994) precludes conviction for both the crime charged and an included offense. It is unclear on the record before us whether appellant was adjudicated on any counts in which section 609.04 would be implicated. While neither party raised this issue on appeal, they should not be precluded from doing so on remand if, in fact, there is a question about the application of section 609.04.
[ ]3Minn. Stat. § 609.52, provides in relevant part:
Subd. 2. Acts constituting theft. Whoever does any of the following commits theft and may be sentenced as provided in subdivision 3:
(1) intentionally and without claim of right takes, uses, transfers, conceals or retains possession of movable property of another without the other's consent and with intent to deprive the owner permanently of possession of the property; or * * *
* * * *
(3) obtains for the actor or another the possession, custody or title to property of * * * a third person by intentionally deceiving the third person with a false representation which is known to be false, made with intent to defraud, and which does defraud the person to whom it is made. "False representation" includes without limitation:
(a) the issuance of a check * * * knowing that the actor is not entitled * * * to order the payment or delivery thereof; * * *
(4) by swindling, whether by artifice, trick, device or any other means, obtains property or services from another person; * * *.
[ ]4Appellant's reliance on State v. Williams, 324 N.W.2d 154 (Minn. 1982), is misplaced. Williams reversed and remanded a defendant's conviction because the jury instruction had not included intent to defraud as an element of theft by false representation, specifically by check. Id. at 157-59. Here, the jury was instructed that it had to find that appellant intended to defraud Unbank, or intended that the promises he made would not be performed. The subsequent instruction that the state did not have to prove intent permanently to deprive did not negate the instruction on intent to defraud.
[ ]5He claims he first intended to defraud when he became angry over Unbank's refusal to accept a fifth check and decided to stop payment on the previous four checks.
[ ]6When asked what his net take-home pay had been in the month when he wrote and stopped payment on the checks, appellant responded:
I was doing 2 jobs at the time. * * * I was working full time at Capital Resource which is my full time job, and I was also making money playing [B]lack Jack.
Appellant took the Fifth Amendment when asked what he had earned from his "Black Jack job" in that month. When directed to answer, he replied "about $12,000." Appellant took the Fifth Amendment four more times in response to questions on his gambling profits and losses. The questions were dropped after appellant invoked the Fifth Amendment, and he answered none of them.
[ ]7Appellant also cites Marchetti v. United States, 390 U.S. 39, 88 S. Ct. 697 (1968), to support the proposition that questions about gambling profits and losses provide a reasonable basis for fear of incrimination. However, Marchetti is readily distinguishable; it concerned the running of a gambling enterprise and the gambling involved was illegal. See id. at 44, 88 S. Ct. at 700-01.
[ ]8The court in Mitchell affirmed the conviction because no prejudice had been claimed and no request made to strike testimony or give a curative instruction. See id. at 520, 130 N.W.2d at 132-33. Here also there was no request to strike appellant's testimony, and appellant did not request that the jury be given a curative instruction.
9McDaniel also observes, "Even if the questioning was improper, defense counsel's failure to object or seek a cautionary instruction suggests that the conduct was not considered prejudicial." Id. at 293. The same observation is relevant here. Further, appellant's reliance on State v. Ellert, 301 N.W.2d 320 (Minn. 1981), is misplaced. In Ellert the court found harmless error despite more egregious testimony; i.e., the police officer's statement that he believed defendant was lying to him. Id. at 323.