This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

CX-02-323

 

 

State of Minnesota,

Respondent,

 

vs.

 

Janelle M. Bryant,

Appellant.

 

 

Filed February 4, 2003

Affirmed

Anderson, Judge

 

Carlton County District Court

File No. K1001123

 

Mike Hatch, Attorney General, Thomas R. Ragatz, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN  55103; and

 

Marvin Ketola, Carlton County Attorney, 202 Courthouse, P.O. Box 300, Carlton, MN  55718 (for respondent)

 

John Stuart, State Public Defender, Leslie J. Rosenberg, Assistant Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN  55414 (for appellant).

 

            Considered and decided by Stoneburner, Presiding Judge, Anderson, Judge, and Wright, Judge.

U N P U B L I S H E D  O P I N I O N

 

G. BARRY ANDERSON, Judge

 

            A jury convicted appellant of theft in violation of Minn. Stat § 609.52, subd. 2(1) (1998).  Appellant argues the conviction must be reversed because the circumstantial evidence produced at trial was insufficient to prove her guilt beyond a reasonable doubt.  Appellant also contends the prosecutor committed prejudicial misconduct during closing arguments and the district court abused its discretion by ruling that her two prior convictions for issuing worthless checks could be used to impeach her if she elected to testify.  Because we conclude the district court did not abuse its discretion, there was no prejudicial misconduct by the prosecutor, and the evidence was sufficient to support the conviction, we affirm.

FACTS

In March 2000, appellant, Janelle M. Bryant, was working in Cloquet as a part-time cashier for the Cash Center, a chain of lending institutions in northern Minnesota offering short-term loans and check-cashing services.  In April 2000, Cash Center manager Jackie Paine noticed that one of the Cash Center’s Norwest (now Wells Fargo) Bank accounts had a smaller balance than expected.  After comparing the store’s deposit slips with Norwest’s records, Paine discovered that the bank had not credited two deposits to the Cash Center’s account.  The two deposits were for Wednesday March 29, and Saturday April 1, 2000, and totaled $6,017.50 in checks and cash.  Appellant was the only employee who worked at the Cash Center on those days and appellant’s signature was on both deposit slips.  Paine called the bank to inquire if it had any record of the deposits or if those deposits had been accidentally credited to another account.  Paine discussed the matter with appellant and appellant assured Paine that she had made the deposits.  Paine was unable to find any record of the missing deposits. 

Paine contacted the Cloquet Police Department and began working with Timothy Lamminen, a detective with nearly twenty years of experience.  Lamminen contacted the bank to discuss the missing deposits and to inquire about the bank’s security procedures.  Because the bank is sensitive to customer concerns about the safety of the night deposit box, it employs several security measures to protect deposits.  Two employees open the box and retrieve the deposits in the morning.  One employee has a key to the box while another employee has the combination to the safe in the deposit box, so that, in theory, no single employee is able to access the deposits alone.  After the box is opened, the two employees separately count the deposit bags and envelopes to make sure they both agree on the number of deposits made.  The bank assigns two employees who rotate daily to retrieve the deposits.  The record also indicates that this was the first time that any bank customers reported that deposits placed in the drop box were not credited to their account. 

Based on this information, Lamminen determined that it was very unlikely that a bank employee had lost or stolen the deposits.  As part of his investigation, Lamminen called appellant to discuss the matter.  Appellant told Lamminen that she did not know what happened to the missing deposits.  She reiterated her claim that she took both deposits to the bank on April 1, 2000, placed both envelopes into the night deposit box, and then left to meet her husband. 

Appellant was subsequently charged with one count of theft in violation of Minn. Stat. § 609.52, subds. 2(1), 3(2) (1998).  At trial, appellant chose not to testify because she feared the state would impeach her with her two previous misdemeanor convictions for issuance of worthless checks.  Appellant also contends that during closing arguments, the prosecutor (1) made several comments criticizing her theory of the case, (2) made arguments that were contrary to evidence, and (3) personally vouched for the credibility of the state’s witnesses.  The jury returned a guilty verdict, and the district court sentenced appellant to the custody of the commissioner of corrections for a year and a day, with the execution of the sentence stayed for five years.  This appeal followed. 

 

D E C I S I O N

 

I

Appellant first argues that because no witnesses testified they saw her take the deposits, possess, or spend the money, and because the funds were never recovered, the circumstantial evidence presented at trial was insufficient to prove her guilt beyond a reasonable doubt.  In considering a claim of insufficient evidence, appellate review “is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction,” is sufficient to allow the jurors to reach the verdict that they did.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  The reviewing court must assume 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).  “We will not disturb the verdict if the jury, acting with due regard for the presumption of innocence” and the requirement of proof beyond a reasonable doubt, could reasonably conclude the defendant was guilty of the charged offense.  State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).

Although a conviction based entirely on circumstantial evidence “warrants stricter scrutiny, circumstantial evidence is entitled to the same weight as direct evidence.”  State v. Bauer, 598 N.W.2d 352, 370 (Minn. 1999) (citation omitted).  The circumstantial evidence must form a complete chain that, in view of the evidence as a whole, leads so directly to the guilt of the defendant as to exclude beyond a reasonable doubt any reasonable inference other than guilt.  State v. Jones, 516 N.W.2d 545, 549 (Minn. 1994).  A jury, however, is in the best position to evaluate circumstantial evidence, and its verdict is entitled to due deference.  Webb, 440 N.W.2d at 430.

To secure a conviction under the charged statute, the state must prove beyond a reasonable doubt that a defendant

intentionally and without claim of right [took, used, transferred, concealed or retained] possession of movable property of another without the other's consent and with intent to deprive the owner permanently of possession of the property.

 

Minn. Stat. § 609.52, subd. 2(1).  Appellant claims that the circumstantial evidence presented at trial falls short of meeting that burden. 

The state presented evidence that two Cash Center deposits that appellant was responsible for, and which she claimed to have placed in the bank’s night deposit box, were not credited to the Cash Center’s account and were never recovered.  The state also produced evidence concerning Norwest’s security procedures, suggesting that it was unlikely that the bank employees lost or stole the money.  Further, the state also established that this Norwest branch had not previously misplaced or lost any deposits placed in the night deposit box. 

Appellant argues that the state’s evidence did not rule out other possible explanations for the missing money.[1]  But the state is not required to rule out every possible theory for why the money vanished in order to secure a conviction.  All that is required is that the state proves appellant’s guilt beyond a reasonable doubt. 

For example, in State v. Klosterboer, based on facts similar to those presented here, this court held that circumstantial evidence presented at trial was sufficient to convict a county gambling manager of theft.  State v. Klosterboer, 529 N.W.2d 705, 709 (Minn. App. 1995).  After an audit revealed that some lottery revenue reported by the manager on the tax forms was never deposited, and income from the games was never recorded or deposited, the manager was charged with and convicted of multiple counts of theft.  Id. at 708.  We held that the evidence produced at trial, including evidence that defendant at one point possessed the gambling proceeds and recorded the proceeds on tax forms but the money was never deposited, was sufficient to prove the gambling manager’s guilt beyond a reasonable doubt.  Id. at 709. 

Similarly, in State v. Garceau, there was sufficient circumstantial evidence presented at trial to prove that a county clerk had stolen five deposits never credited to the county’s bank account.  State v. Garceau, 370 N.W.2d 34, 39 (Minn. App. 1985), review denied (Sept. 13, 1985).  In that case, the evidence showed that Garceau was responsible for and prepared all the missing deposits, that she was the only clerk who was working on each of the days that a deposit disappeared, that the bank had not lost any of its other customers’ deposits and that too many employees at the bank would have had to have been involved to steal the deposits in question, all of which cast irreparable doubt on the defendant’s theory that the theft occurred at the bank.  Id. at 37-39. 

Appellant, like the defendants in Garceau and Klosterboer, was responsible for making the missing deposits.  Both here and in Garceau, the defendants were the only people who were at work every day the deposits turned up missing.  Both the appellant and the defendant in Garceau claimed to have deposited the money at the bank.  As in Garceau and in Klosterboer, here there was considerable evidence that the bank never received the missing deposits.  Moreover, as in Garceau, there was considerable evidence presented at trial focusing on the likelihood that the bank may have lost the deposits.  Finally, as in Garceau, the bank here claimed to have never lost any other customer deposits. 

The record here also demonstrates that appellant was responsible for making the missing deposits.  Appellant was the only employee at the Cash Center the days the deposits disappeared.  The deposits were in appellant’s control up to the point that the money was last seen.  Her claim that she placed them in the Norwest night deposit box is contradicted by the bank’s security procedures, which make it unlikely that a bank employee stole the money, and the bank’s record of never having lost any other customer’s deposits.  When viewed in the light most favorable to the state, the evidence does not support any “rational hypothesis” except appellant’s guilt.  See State v. Mueller, 358 N.W.2d 72, 75 (Minn. App. 1984). 

II

Appellant next contends that during closing arguments the prosecutor repeatedly misstated the evidence, substituted his own opinions for evidence, personally vouched for the credibility of Lamminen, and asked the jury to render a decision based on a personal rather than a legal basis.  Appellant argues that these acts of prosecutorial misconduct combined with the circumstantial nature of the evidence against her warrant a reversal or, alternatively, a new trial.

Generally, a defendant alleging prosecutorial misconduct will not be granted a new trial if the misconduct was harmless beyond a reasonable doubt.  State v. Atkins, 543 N.W.2d 642, 648 (Minn. 1996).  The test for determining whether prosecutorial misconduct was harmless depends partly upon the level of misconduct.  State v. Caron, 300 Minn. 123, 127, 218 N.W.2d 197, 200 (1974).  In cases involving serious prosecutorial misconduct, a reviewing court must be certain beyond a reasonable doubt that the misconduct was harmless before it will affirm.  State v. Ashby, 567 N.W.2d 21, 28 (Minn. 1997).  In cases involving less serious prosecutorial misconduct, the test is whether the misconduct likely played a substantial part in influencing the jury to convict.  Caron, 300 Minn. at 128, 218 N.W.2d at 200.  A prosecutor may argue the credibility of a witness but may not personally vouch for the witness’s reliability.  Sanderson v. State, 601 N.W.2d 219, 225 (Minn. App. 1999), review granted (Jan. 18, 2000), review denied (Mar. 28, 2000).  Likewise, the state may vigorously argue its case, but it may not imply that the defendant’s position is a ruse.  State v. Rairdon, 557 N.W.2d 318, 324 (Minn. 1996).  Moreover, the state may not belittle the defense’s theory in the abstract.  State v. Coleman, 560 N.W.2d 717, 721 (Minn. App. 1997).

Appellant contends that the prosecutor misconstrued the evidence by arguing that it was extremely unlikely that the bank would lose two separate Cash Center deposits made on two separate days, when the evidence presented to the jury suggested appellant took both deposits to the bank on the same day.  Appellant also argues that given the circumstantial evidence presented at trial, this mischaracterization of the evidence merits a reversal.  See State v. VanWagner, 504 N.W.2d 746, 750 (Minn. 1993).  Further, appellant claims that the state prejudiced the jury by vouching for the credibility of Lamminen and casting unfair aspersions on the defense’s theory of the case.

The state correctly points out that the appellant either failed to object to the offending comments or did not properly frame the objections.  Furthermore, the appellant never asked for a curative instruction.  Even if the appellant had properly objected and asked for a curative instruction, the misconduct alleged here does not meet the high level of misconduct Minnesota appellate courts generally require in order to reverse a jury verdict.

Here the prosecutor’s alleged misstatements did not rise to the level necessary to warrant a new trial.  See State v. Montjoy, 366 N.W.2d 103, 108-109 (Minn. 1985) (new trial not granted even though the prosecutor asked the jury to teach the defendant a lesson).  The prosecutor’s comments regarding the detective’s experience, suggesting that the detective would not submit a case to the county attorney’s office that he thought would not win at trial, and stating that the defense was playing a game with “smoke and mirrors,” did not unduly prejudice the defendant’s right to a fair trial.  These comments, and others, were unfortunate and perhaps even error, but there is no basis to conclude that they were unfairly prejudicial.  See Merrill, 428 N.W.2d 361, 373 (Minn. 1988) (deciding not to reverse a conviction because they could not find that the prosecutor’s comments had any effect on the jury even though the prosecutor made “unfortunate” and unnecessarily referred to the defendant as an animal and personally couched for the credibility of the state’s witnesses).  Here, the prosecutor made a few isolated inappropriate comments, but when taken in context of the state’s entire closing argument, these remarks do not merit a new trial.  See Coleman, 560 N.W.2d at 722 (no reversible error because the county attorney’s comments that the defendant had been shopping for a defense and used defense that was only employed when nothing else would work because the comments were found on just two pages of an argument covering 65 pages of transcript).

III

Finally, appellant argues the district court abused its discretion in ruling she could be impeached with her two prior convictions for issuing worthless checks.  Because of the district court’s evidentiary ruling, appellant elected not to testify.  We evaluate a district court’s ruling on the admissibility of prior convictions using abuse of discretion as the standard of review.  State v. Ihnot, 575 N.W.2d 851, 586 (Minn. 1998).  Minnesota Rule of Evidence 609 allows a witness to be impeached by prior convictions if; (1) the conviction carried a punishment of more than one year in prison or death, and the court determines the probative value of the conviction outweighs its prejudicial effect; or (2) the conviction was for a crime that involved dishonesty or a false statement, regardless of the punishment.  State v. Gassler, 505 N.W.2d 62, 66 (Minn. 1993).  Whether a particular crime is one that involves dishonesty “lies not just in the type of crime, but also in the manner in which the crime was carried out.”  State v. Ross, 491 N.W.2d 658, 659 (Minn. 1992) (emphasis in original).  In many crimes,

deceit is not an element, but the manner in which the witness committed the offense may have involved deceit, and if that is shown, the conviction is admissible under Rule 609(a)(2).

 

Id. (quoting Altebello v. Borden Confectionary Products, Inc., 872 F.2d 215, 216-17 (7th Cir 1989)). 

Here the district court made very little inquiry into the manner in which appellant was alleged to have committed the two prior crimes.  The state first sought to use the convictions as Spreigl evidence.  The district court ultimately denied this motion.  But the district court did suggest the state could use the convictions as impeachment evidence.  In fact, during pretrial motions, the only information the state offered about the convictions was the date of the offense.  Curiously, when the state formally made the Spreigl motion, at the end of its case-in-chief and disclosed more information about the two convictions, the district court denied the motion in part because the two previous convictions did not involve an element of “swindle.” 

But it was appellant’s lawyer first suggested during the pretrial motions that although these convictions failed to satisfy the Spreigl standard, they were “probably appropriate impeachment under rule 609.”  This development presents a problem for appellant because a party cannot avail itself of an invited error.  State v. Gisege, 561 N.W.2d 152, 158 (Minn. 1997).  Further, the record contains no evidence that appellant ever specifically objected to the use of the prior convictions for impeachment purposes, although appellant did object to use of the convictions as Spreigl evidence.  Because this matter was not argued to and considered by the district court, we will not consider it now.  Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996). 

            Affirmed.