This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-697

 

 

State of Minnesota,

Respondent,

 

vs.

 

Gary A. Keim,

Appellant.

 

 

Filed ­­­April 25, 2006

Affirmed

Dietzen, Judge

 

Mower County District Court

File No. K1-03-442

 

Patrick A. Oman, Mower County Attorney, Mower County Courthouse, 201 1st Street Northeast, Austin, MN 55912; and

 

Mike Hatch, Attorney General, James B. Early, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent)

 

John M. Stuart, State Public Defender, Lydia M. Villalva Lijo, Assistant State Public Defender, 2221 University Avenue, Suite 425, Minneapolis, MN 55414 (for appellant)

 

            Considered and decided by Worke, Presiding Judge; Dietzen, Judge; and Collins, Judge.*

U N P U B L I S H E D   O P I N I O N

 

DIETZEN, Judge

 

            Appellant challenges his conviction of theft by swindle, arguing that hearsay evidence was improperly admitted, and that the evidence was insufficient to show intent to swindle.  Appellant makes additional pro se arguments that he (1) is entitled to a new trial to permit him to testify, (2) disputes the evidence in the record, and (3) argues additional facts outside of the record.  We affirm.

F A C T S

 

            In December 2002, Eddie Aynaszyan, a part-owner of a small California trucking company, contacted appellant Gary Keim in response to his advertisement on the Internet for the sale of a truck.  As a result of their phone conversation, appellant agreed to sell the truck to Aynaszyan for $6,000, with a $1,000 deposit and the remaining $5,000 to be paid when Aynaszyan picked up the truck.  Appellant agreed to telefax a copy of the title to the truck, and stated that the truck was not drivable but there was no damage to its frame.  Shortly thereafter, appellant contacted Aynaszyan and stated that he had another buyer, and therefore, if Aynaszyan was serious, he needed to pay $5,000 as a down payment with $1,000 to be paid at pick-up.  Aynaszyan sent a $5,000 cashier’s check by Federal Express and agreed to pay the balance of $1,000 with something known in the trucking industry as a “comp check.”  Aynaszyan then called appellant to inquire if he had received the cashier’s check, and appellant confirmed that he had received and cashed the check.

            Following discussions with appellant, Aynaszyan hired a tow-truck driver to pick up the truck and take it to a body shop for repair.  Subsequently, the tow truck driver called Aynaszyan and stated that appellant refused to release the truck because he had not received the $5,000 check and the purchase price was $7,500; and that the driver observed damage to the frame of the truck.  Aynaszyan decided to cancel the transaction because appellant denied receipt of the $5,000 check, had raised the purchase price to $7,500, and had not provided him with title to the truck.  Aynaszyan then issued a stop payment order on the $5,000 check.

            Gerald Payne, a representative of appellant’s bank, testified that he advised appellant of the stop-payment order and asked that he return the money.  Appellant replied that he mailed the money to Aynaszyan.  Payne asked appellant, “You mailed that much cash back in the mail to California?”  Appellant responded affirmatively.  Payne then called Aynaszyan’s bank, which issued another check to cover the stop-payment order.  When Aynaszyan was unsuccessful in obtaining the return of his $5,000, he requested a criminal investigation.

            Grand Meadow Police Chief Richardson investigated the matter.  He testified that he had difficulty locating appellant but did eventually locate him by chance at the courthouse.  When asked about the title to the truck, appellant stated that the state patrol had taken it from him when the truck was in an accident.  Richardson knew that it was “not procedure” to take a person’s title and gave appellant a week to produce a copy of the title.  Appellant did not furnish the title and would not answer the door or telephone when Richardson attempted to follow up with him.  Richardson also asked appellant about the $5,000 check, and he testified that appellant “told me I had bad information, and when I asked him if he did cash a check for $5,000, he said I couldn’t prove that[.]”

In March 2003, appellant was charged with theft by swindle, in violation of Minn. Stat. § 609.52, subds. 2(4) and 3(2) (2002).  Following several changes of appellant’s plea to the charge, the matter was tried to a jury.  Following a jury trial, appellant was convicted and received a stay of execution of his sentence and placed on probation.  This appeal follows.

D E C I S I O N

I.

            Appellant argues that the district court’s failure to strike hearsay testimony was plain error, and that his constitutional right to cross-examine and confront witnesses against him was violated.  “Evidentiary rulings rest within the sound discretion of the trial court and will not be reversed absent a clear abuse of discretion.  On appeal, the appellant has the burden of establishing that the trial court abused its discretion and that appellant was thereby prejudiced.”  State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003) (citation omitted). 

            Generally, failure to object to evidence constitutes waiver of those issues on appeal unless appellant shows that admission of the evidence was plain error.  Minn. R. Crim. P. 31.02; Van Buren v. State, 556 N.W.2d 548, 551 (Minn. 1996).  To establish plain error, appellant must show that the ruling was: (1) an error; (2) that is plain; and (3) that affected substantial rights.  State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998).

Here, Aynaszyan testified:

And the towing person [Nelson], whoever, came to pick up the truck and [Nelson] called me back, [Nelson] said, “[Appellant], [appellant’s] not releasing the truck.”  I said, “What do you mean? Why [appellant’s] not releasing?”  [Nelson] said, “Because [appellant] wants $7,500 cash.  [Appellant’s] saying he never received any money.”  And I said, “What do you mean he never received any money?  I Fed Ex’ed him a $5,000 cashier’s check.”  [Nelson] said, “He never received it.”   

 

Respondent does not dispute that the admission of the driver’s statements through Aynaszyan’s testimony was hearsay, and, therefore, its admission was plain error.  But respondent contends that the hearsay testimony was non-testimonial under Crawford v. Washington, 541 U.S. 36, 68, 124 S. Ct. 1354, 1374 (2004), and did not affect substantial rights.  Appellant agrees that the hearsay testimony is non-testimonial under Crawford, but contends that the hearsay evidence nevertheless violated the Confrontation Clause as expressed in Ohio v. Roberts, 448 U.S. 56, 66, 100 S. Ct. 2531, 2539 (1980).  In Roberts, the U.S. Supreme Court concluded that out-of-court statements by an unavailable witness do not violate the Confrontation Clause if the statement bears “adequate indicia of reliability,” that is, the statements constituting hearsay either fall within “a firmly rooted hearsay exception” or bear a “particularized guarantees of trustworthiness.”  State v. Martin, 695 N.W.2d 578, 584 (Minn. 2005) (quoting Ohio v. Roberts, 448 U.S. 56, 66, 100 S. Ct. 2531 (1980)).  We agree with appellant that the hearsay testimony is subject to the scrutiny applied by the Minnesota Supreme Court in State v. Martin.  But respondent does not argue that the hearsay testimony was admissible.  Consequently, our analysis turns to the third prong of the Griller test, that is, whether the admission of the hearsay testimony affected substantial rights.

The third prong requires that “the error was prejudicial and affected the outcome of the case.”  Griller, 583 N.W.2d at 741.  The Griller court observed that the defendant has the burden of persuasion on the third prong, and that “we consider this to be a heavy burden.”  Id.  Here, the hearsay testimony regarding the tow-truck driver’s statements was limited to the driver’s comments that appellant was not releasing the truck until he was paid $7,500 cash, and that he had not received a cashier’s check for $5,000.  And appellant did not contest at trial that he did not release the truck.  The dispute over whether appellant cashed the $5,000 cashier’s check was cumulative of testimony on the same subject given by Payne and Richardson.  The testimony that the purchase price had been raised to $7,500 was new.  But we believe that such testimony was minor and was not unfairly prejudicial in nature, particularly when combined with all the other testimony regarding the transaction.  Consequently, we conclude that the hearsay testimony was not overly prejudicial and did not affect the outcome of the case.  See, e.g., State v. Bauer, 598 N.W.2d 352, 363-64 (Minn. 1999) (holding that admission of a medical expert’s testimony that, based on the size of the fatal wound, the victim’s assailant intended to kill her was plain error but was not prejudicial nor did it affect the outcome of the case given the defense theory).  

But even if appellant showed that the error satisfies all three prongs under Griller, “we may correct the error only if it seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.”  State v. Strommen, 648 N.W.2d 681, 686 (Minn. 2002) (quotation omitted).  On this record, appellant has not established that this court is required to address the error to insure fairness and the integrity of the proceedings.  “Where an objection is not made, hearsay evidence will be admitted and has probative force.”  State v. Hamilton, 268 N.W.2d 56, 63 (Minn. 1978).  We believe that the admission of this hearsay testimony is not so fundamental or significant as to affect the integrity of the proceeding. 

II.

            Appellant contends that the evidence was insufficient to support his conviction.  In considering a claim of insufficient evidence, this court’s 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 that 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).  This is especially true when resolution of the matter depends mainly on conflicting testimony.  State v. Pieschke, 295 N.W.2d 580, 584 (Minn. 1980).  The reviewing court 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 that the defendant was guilty of the charged offense.  State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).

            A person commits theft by swindle if “by artifice, trick, device, or any other means, [the person] obtains property or services from another person[.]”  Minn. Stat. § 609.52, subd. 2(4) (2002).  “Theft by swindle requires the intent to defraud.”  State v. Saybolt, 461 N.W.2d 729, 735 (Minn.App.1990), review denied (Minn. Dec. 17, 1990).  In evaluating whether the evidence is sufficient to show intent to swindle, this court is confined to a review of whether the evidence at trial, viewed most favorably to the state, was sufficient to find that appellant intended to intentionally deprive the investors of their property.  See State v. Belfry, 353 N.W.2d 224, 226 (Minn. App. 1984), review denied (Minn. Oct. 30, 1984) (concluding that criminal intent for theft by swindle was present at the time that defendant initially took victim’s money, even though opportunity to act on that intent did not arise until later).

            Respondent, relying on all the evidence, including the hearsay testimony, argues that the evidence is sufficient to support the conviction.  But appellant implicitly argues that the hearsay evidence regarding the tow-truck driver’s conversations with appellant should not be considered and that the evidence is otherwise insufficient to prove that he committed theft by swindle because the evidence fails to prove his intent. 

            Aynaszyan testified that the tow-truck driver told him that appellant denied receiving the $5,000 check and that the purchase price of the truck was $7,500, rather than $5,000, and that the truck was more damaged than Aynaszyan anticipated.  But the remaining testimony also shows appellant’s intent to swindle Aynaszyan.  Aynaszyan testified that appellant cashed his check but did not release either the truck or the title to him, and that appellant avoided contact with him and did not respond to more than 50 phone calls.  Appellant told Payne that he could not return the $5,000 to the bank because he mailed the $5,000 in cash back to California.  Appellant told Chief Richardson that the police could not prove that he had cashed the check and that he had given title of the truck to the state patrol, both of which were untrue.  Lack of truthfulness shows consciousness of guilt.  See Eggersgluss v. Comm’r of Pub. Safety, 393 N.W.2d 183, 185 (Minn. 1986) (“Defendant obviously was not being truthful in his response, and his lack of truthfulness showed a consciousness of guilt.”). 

The jury found the state’s witnesses’ testimony to be credible, and it convicted appellant of theft by swindle.  “A defendant bears a heavy burden to overturn a jury verdict.”  State v. Vick, 632 N.W.2d 676, 690 (Minn. 2001).  “When reviewing the circumstantial evidence and the inferences that may be derived from it, we recognize a jury is in the best position to evaluate the evidence.”  State v. Sanders, 598 N.W.2d 650, 655 (Minn. 1999) (quotation omitted).  Excluding the hearsay testimony regarding the tow-truck driver’s conversation with appellant, the remaining evidence, taken in the light most favorable to respondent, was sufficient for the jury to find that appellant intended to swindle Aynaszyan of $5,000.

Additionally, appellant, in his pro se brief, argues that he should have the right to a new trial so that he can testify, contends that various evidence in the record is untrue, and asserts facts that are not in the record.  Because appellant waived his right to testify on the record, because this court’s record is limited to the record made in the district court, and because the jury weighs the evidence in the record in making its determination of guilt, we conclude that appellant’s pro se arguments lack merit.

Affirmed.