This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996)




State of Minnesota,



Jerry Ray Wilcox,


Filed December 30, 1997


Schumacher, Judge

Dakota County District Court

File No. K3-96-1103

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

James Backstrom, Dakota County Attorney, Debra Schmidt, Assistant County Attorney, Dakota County Judicial Center, 1560 Highway 55, Hastings, MN 55033-2392 (for Respondent)

John M. Stuart, Minnesota State Public Defender, Ann McCaughan, Assistant State Public Defender, 2829 University Avenue Southeast, Minneapolis, MN 55414-3230 (for Appellant)

Considered and decided by Crippen, Judge, Schumacher, Presiding Judge, and

Forsberg, Judge.**

Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. Art. VI, § 2.



Appellant Jerry Ray Wilcox challenges his convictions for theft, arguing insufficiency of the evidence. We affirm.


In September 1995, Wilcox and David Keys, owner of Mr. K's Classic Cars, entered into a business agreement. Under the agreement, Keys would finance the purchase of cars for Wilcox to repair and then sell from the Mr. K's lot, with both parties sharing the profits. Wilcox was required to keep records for each car sold, noting the cost of the acquisition and the re-sale price. Keys was involved in other business ventures and did not maintain regular hours at the Mr. K's lot. It was agreed that Wilcox would operate the car lot.

Wilcox began acquiring cars using Mr. K's funds and selling them from the lot. Keys and Wilcox had agreed that Wilcox would reimburse Keys for acquisition costs and pay Keys his share of profits immediately after a sale. Wilcox did not comply with their agreement. Upon realizing that Wilcox was not turning over funds, Keys requested a meeting in November 1995 to "settle up." Wilcox gave Keys $4,000 at a meeting later that month. Wilcox continued to manage the business after the November meeting. Keys made numerous attempts to arrange other meetings to divide the business profits, but Wilcox failed to attend the scheduled meetings. The parties met again in February 1996, at which time it was agreed that the business records indicated Wilcox owed Keys about $13,000. Wilcox told Keys that he did not know what happened to the money.

Wilcox was charged and convicted by jury of two counts of aggregated theft exceeding $2,500. The trial court sentenced Wilcox to concurrent ten-year terms of probation, stayed upon completion of six months' incarceration and payment of a fine and restitution. Wilcox appeals.


In considering a claim of insufficiency of the evidence, we analyze the record to determine whether a jury reasonably could find the defendant guilty of the offense charged. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). We view the evidence in the light most favorable to the conviction. Id.

Wilcox was convicted of two counts of aggregated theft under Minn. Stat. § 609.52, subd. 2(1) (1996). Under this section, a person commits theft if the person

* * * 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[.]


Wilcox argues the state failed to prove that he had no claim of right to the funds belonging to Keys. Based on the evidence, however, the jury reasonably could have concluded that Wilcox had no claim of right to the funds. According to Keys's trial testimony, the agreement with Wilcox provided that all profits were to be divided evenly between Keys and Wilcox. Keys never received his share of profits for 18 car sales. Further, profits were to be calculated after Keys was reimbursed for his investments in the cars. Mr. K's provided the funds for the purchase of most cars for the business. At trial, Wilcox acknowledged that he used Mr. K's business checks to purchase many of the cars. Wilcox did not reimburse Keys for his investments.

Citing our decision in State v. Marshall, 541 N.W.2d 330, 332 (Minn. App. 1995), review denied (Minn. Feb. 27, 1996), Wilcox also argues the state failed to prove that the funds at issue technically belonged to Keys. Wilcox's reliance on Marshall is misplaced. In that case, we held that because there was no trust or trust-like limitation on the defendant's use of funds, the funds became the defendant's property. Id. Here, however, there were limitations on Wilcox's use of the funds from the car sales. Wilcox brought no equity to the agreement and most acquisitions were made using Mr. K's funds. The agreement between Keys and Wilcox required that Wilcox reimburse Keys for acquisition costs and half of the profits. Wilcox was required to turn funds over to Keys after the sale of each car, and he did not.

Wilcox argues the state failed to prove criminal intent. We conclude, however, that there was substantial circumstantial evidence from which the jury could have inferred Wilcox's criminal intent. Wilcox requested that several car buyers make their checks payable to him despite Keys's request that checks be payable to Mr. K's. Wilcox testified that he cashed the buyers' checks immediately and did not turn the checks over to Keys. Keys testified he made numerous attempts to meet with Wilcox to "settle up" but Wilcox failed to attend the scheduled meetings. After agreeing he owed Keys $13,000 at their February meeting, Wilcox suddenly removed his belongings from Mr. K's and did not return Keys's phone calls.

Finally, Wilcox argues that the convictions for two counts of theft based on one continuing course of conduct unduly exaggerate his criminality and cause prejudice. However, we conclude the state introduced sufficient evidence to support two counts of theft exceeding $2,500. Moreover, Wilcox presents no authority to support his assertion that the convictions unfairly prejudice him. Accordingly, we need not address this claim. See Schoepke v. Alexander Smith & Sons Carpet Co., 290 Minn. 518, 519-20, 187 N.W.2d 133, 135 (1971) (an assignment of error not supported by argument or authority is waived).