This opinion will be unpublished and

may not be cited except as provided by

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




State of Minnesota,



Larry Darnell Marshall,


Filed March 17, 1998


Shumaker, Judge

Ramsey County District Court

File No. KO-96-3667

Hubert H. Humphrey, III, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent)

Sandra Diane Anderson, Ramsey County Attorney's Office, 315 Government Center, St. Paul, MN 55102 (for respondent)

John M. Stuart, Sharon Elizabeth Jacks, 2829 University Avenue SE, Suite 600, Minneapolis, MN 55414 (for appellant)

Considered and decided by Huspeni, Presiding Judge, Schumacher, Judge, and Shumaker, Judge.



Larry Marshall appeals from a judgment of conviction of two counts of financial transaction card fraud under Minn. Stat. § 609.821, subd. 2(1) and (4) (1996), contending that (1) the state failed to present sufficient evidence to sustain the convictions; (2) the trial court improperly admitted evidence of a burglary allegedly involving the appellant; (3) the trial court abused its discretion by failing to give a jury instruction on abandonment of intention; and (4) the trial court shifted the burden of proof to the appellant in the manner in which it charged the jury on the elements of financial transaction card fraud. We affirm.


At approximately 2:15 a.m. on November 12, 1996, Jody Elmasry awakened and saw someone standing in the hallway outside her bedroom. She thought it was her son because the person, wearing a short jacket and a cap, was similar in appearance to her son.

Seventeen minutes later, a clerk at a gasoline station five blocks from the Elmasry home observed two prepay gasoline pumps that showed credit card authorizations for gas purchases. She saw Marshall run a credit card through one pump and receive approval for a $50 purchase. She noticed another pump had authorized a $50 purchase as well. A MasterCard and a Discover card were used, and the companion register inside the station showed the name of Jody Elmasry as the cardholder on both. Because the clerk saw no cars at the pumps she stopped the transactions.

The clerk saw Marshall approach two taxi drivers at the station. Marshall showed the credit cards to the drivers and the clerk saw them shake their heads "no." She could not hear the conversations but testified that she assumed Marshall was asking if he could pay for their gasoline in exchange for cash. There was no objection at trial to this arguably inadmissible conclusion.

Marshall then entered the station, flashed a credit card at the clerk, and asked if he could buy cigarettes and get cash back. The clerk replied that she could accept a credit card only for the amount of the purchase.

The clerk then saw Marshall go to an automatic teller machine in the station and heard him attempt to use it three times. A transaction printout showed that Marshall used his own cash card twice unsuccessfully because of insufficient funds in his account.

Marshall then asked the clerk if any taxi companies accepted checks or credit cards. The clerk called some companies and told Marshall that she was unable to find a cab for him.

Marshall next asked for a piece of paper. The clerk gave him one and then observed Marshall looking at the Elmasry credit card and checkbook while attempting to copy a signature. She could not see the entire name but noticed that Marshall had written "Jody." The clerk then called the police and related her suspicions about the credit cards. Marshall soon left the station.

When the police arrived they noticed Marshall on the premises and detained him. Marshall falsely identified himself as "Larry Lawson" but gave his correct address, which was about seven blocks from the gasoline station and two and a half blocks from the Elmasry home. An officer asked Marshall about the credit cards. Marshall gave the officer the two cards he used at the gasoline pumps and Jody Elmasry's checkbook.

The officer placed Marshall in the back seat of the squad car. Later, the officer found Elmasry's Dayton's card underneath the back seat of that car.

The officer then drove to the Elmasry home. He noticed a window partially open with the screen pulled off. The police lifted fingerprints from the house but were unable to identify them.

After the police notified her that someone had been trying to use her credit cards, Elmasry inspected her home that night and the next day. She discovered that her keys, a VCR, and a 35-mm camera were also missing.

At trial, Elmasry unequivocally identified the checkbook, MasterCard and Discover card in Marshall's possession and the Dayton's card found in the squad car as being hers. She testified that she gave no one permission to use any of them. She specifically testified that she did not give such permission to Marshall. On these facts a jury found Marshall guilty of two counts of financial transaction card fraud.


In this appeal we are required to view the evidence in a light most favorable to the prevailing party, the State of Minnesota, and, in doing so, we must assume that the jury believed the state's witnesses and disbelieved any evidence to the contrary. State v. Ulvinen, 313 N.W.2d 425, 428 (Minn. 1981).

Marshall was convicted of two counts of financial transaction card fraud under Minn. Stat. § 609.821, subd. 2 (1) and (4). That subdivision provides in pertinent part that anyone who does the following acts commits financial transaction card fraud:

(1) without the consent of the cardholder, and knowing that the cardholder has not given consent, uses or attempts to use a card to obtain the property of another * * * ;

(4) without a legitimate business purpose, and without the consent of the cardholders, receives or possesses, with intent to use * * * two or more cards issued in the name of another * * * .

A "financial transaction card" is any type of card that enables the cardholder, the person in whose name the card is issued, to use in obtaining goods, services, credit, or anything else of value. Minn. Stat. § 609.821, subd. 1(a) and (b).

Direct evidence adduced at trial showed that Marshall attempted to use two of Elmasry's credit cards to purchase gasoline; that he had possession of a MasterCard and a Discover card; and that the cardholder had not given him consent to possess or use those cards. Inferentially, since the cards had been stolen from the Elmasry home, and since Marshall was not the cardholder, he had no legitimate business purpose for possessing or attempting to use the cards.

Circumstantial evidence supports the inference that Marshall obtained the cards from a burglary of the Elmasry home; that he tried to exchange gasoline for cash from taxi drivers; and that he concealed the Dayton's card under the back seat of the squad car.

Marshall lived near the Elmasry home and the gasoline station. That home was burglarized and financial transaction cards were stolen. Seventeen minutes later, Marshall was trying to use the cards at the station. He was also trying to duplicate a signature with the first name "Jody." When a police officer questioned him, Marshall gave a false name. Marshall had been in the back seat of the squad car. Prior to placing him there, the officer checked the seat area and found nothing. After Marshall had been in the car the officer found another card in Elmasry's name.

1. Sufficiency of Evidence. The direct evidence alone and the reasonable inferences to be drawn from it establish all elements of the charged crimes beyond a reasonable doubt. The circumstantial evidence augments that proof and does not in any way tend to negate any of the elements.

The direct evidence consists of the testimony of the cardholder that her credit cards were stolen from her and that she gave no one, including Marshall, permission to have or to use them.

The direct evidence also consists of the testimony of the gasoline station clerk who saw Marshall run one card through a pump, saw that the cardholder's name was Jody Elmasry, and saw that Marshall obtained authorization to pump up to $100 in gasoline.

This direct evidence, together with the reasonable inferences to be drawn from it, establishes the elements of both charges.

Marshall's argument that his convictions are based entirely on circumstantial evidence is without merit and evinces a misunderstanding of the distinction between direct and circumstantial evidence. Direct evidence directly proves a fact. The firsthand observations of Elmasry and the station clerk directly prove the facts of financial transaction card fraud.

Marshall's link to the burglary is, on the other hand, circumstantial, as is his link to the Dayton's card in the squad car.

Admissible direct evidence and admissible circumstantial evidence are equally competent to prove facts. State v. Gassler, 505 N.W.2d 62, 68 (Minn. 1993). In this case the state relied on a combination of direct and circumstantial evidence.

2. Evidence of the Burglary. Under State v. Wofford, 262 Minn. 112, 114 N.W.2d 267, 271 (Minn. 1962), evidence of other crimes that constitute part of the res gestae of the crime charged is admissible. The burglary of the Elmasry home, the theft of the cards, and Marshall's attempt to use the cards to obtain goods were so closely linked in time and place and so logically explained Marshall's possession of the cards that the conclusion is compelled that the burglary and theft were part of the res gestae, and as such were relevant evidence.

Rule 403, Minn. R. Evid. provides for the exclusion of even relevant evidence "if its probative value is substantially outweighed by the danger of unfair prejudice." To be sure, the burglary evidence was likely prejudicial to Marshall. But the key phrase is "unfair prejudice." Marshall was so logically linked to the burglary and the burglary provided such a clear explanatory context for the charged crimes that it was not unfair to admit the other crimes evidence.

Marshall also argues that photographs of the scene of the burglary were irrelevant and prejudicial. The premise for the argument is that evidence of the burglary is irrelevant. Since we reject that premise, we also reject the argument about the photographs.

3. Abandonment of Intention. Marshall argues that he was entitled to a jury instruction that it is a defense to a charge of an attempted crime that the accused abandoned his intention to commit the crime. Minn. Stat. § 609.17, subd. 3 (1996).

It is a defense to a charge of attempt that the crime was not committed because the accused desisted voluntarily and in good faith abandoned the intention to commit the crime.

The evidence does not support such an instruction. If Marshall abandoned his efforts to obtain goods with the stolen credit cards, the clear inference is that he did so because he was unsuccessful in using the cards. The fact that after his attempts to use the cards he was observed practicing the cardholder's signature, that he lied to the police officer about his name, and that he concealed one of the cards in the squad car clearly negates any inference of the good faith that must arguably exist before the requested jury instruction is warranted.

4. Charge to the Jury. Marshall contends that by giving the "elements" instruction in 10 Minnesota Practice, CRIMJIG 16.46 (1990), the trial court relieved the state of proving the first element of the crimes charged.

The trial court correctly instructed that one element of financial transaction card fraud the state had the burden of proving beyond a reasonable doubt was that the cards belonged to someone other than the defendant.

Marshall contends, however, that the "property" referred to in the CRIMJIG instruction means the property obtained by use of the credit cards and not the credit cards themselves.

Minn. Stat. § 609.821, subd. 2(1), makes it a crime to attempt to use an unlawfully possessed card to obtain property. The statute does not require that any property actually be obtained.

Minn. Stat. § 609.821, subd. 2(4), makes it a crime to possess a card with intent to use it without a legitimate business purpose and without the cardholder's consent. This statute does not require actual use or attempted use, let alone a consummated transaction that results in the user actually obtaining property.

The trial court's instructions on the elements were proper.

5. Attempt to Commit a Crime. Marshall urges that, since he had no receptacle for the gasoline, he did not attempt to obtain any gasoline. Hence, he did not attempt to obtain "property" as required under the statute.

He correctly notes that the elements of an attempt are (1) an intent to commit a crime, and (2) a substantial step toward, and more than mere preparation for, the crime. Minn. Stat. § 609.17, subd. 1 (1996).

He also correctly notes that intent is a state of mind generally provable from inferences drawn from all relevant circumstances.

If a credit card user is to obtain gasoline from a pump by using a credit card he must do three essential things: (1) obtain approval for the credit transaction, (2) activate the pump, and (3), pump the gas. Each step is essential because absent any one of them the transaction cannot be completed. An essential step in a transaction is not mere preparation but it is a substantial step toward completion.

When Marshall slid the card or cards through the pumps to get authorization -- which he did in fact get -- he took a substantial and essential step toward obtaining gasoline fraudulently. His subsequent conduct with the taxi drivers supports the inference of his effort to exchange gasoline for cash and establishes his intent to commit the crimes charged.