STATE OF MINNESOTA

IN COURT OF APPEALS

A05-914

State of Minnesota,
Respondent,

vs.

Markus Christopher Bell,
Appellant.

Filed May 23, 2006

Affirmed

Stoneburner, Judge

Dakota County District Court

File No. K0033508

Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

James C. Backstrom, Dakota County Attorney, Thomas L. Folie, Special Staff Assistant County Attorney, Dakota County Judicial Center, 1560 West Highway 55, Hastings, MN 55033 (for respondent)

Mark D. Nyvold, 332 Minnesota Street, Suite W-1610, St. Paul, MN 55101 (for appellant)

Considered and decided by Lansing, Presiding Judge; Stoneburner, Judge; and Collins, Judge.*

U N P U B L I S H E D O P I N I O N

STONEBURNER, Judge

Appellant challenges his conviction of theft of a motor vehicle, arguing that there is insufficient evidence that he took a motor vehicle without consent and with intent to permanently deprive the owner of possession to support the conviction. Because there is sufficient evidence in the record to support the conviction, we affirm.

FACTS

Appellant Markus Christopher Bell removed a 2002 Jeep Wrangler S from the Southview Chevrolet dealership (Southview) lot at approximately 2:30 a.m. on October 17, 2003. In order to remove the Jeep from the lot, Bell identified himself to the security guard as a Southview used-car salesman, told the guard that a trade-in vehicle had broken down, and he needed to get another one. Bell used the guard’s cell phone to make two calls before he took the Jeep. The security guard testified that Bell told him he needed to borrow the guard’s cell phone to call “RJ” (the used-car manager), and it appeared to the security guard that Bell left a message for “RJ,” explaining the situation and telling him to call him if there were any questions. Cleaning personnel let Bell into the building, and Bell left shortly thereafter in the Jeep. The security guard, who became suspicious after Bell left, called Southview’s general manager, Adam Delacy, who said that Bell no longer worked for Southview and should not have taken a car. The security guard then notified police. The Jeep was recovered at the end of October 2003 in Hennepin County.

Bell began working as a salesperson for Southview on July 21, 2003. When his employment began, Bell signed a receipt for Southview’s handbook, which states in pertinent part:

I hereby acknowledge receipt of a copy of [Southview’s] Employee Handbook. . . . I understand that it is my responsibility to read and comply with the policies contained in this Employee Handbook. . . . Either I or the Company can terminate the relationship at will, with or without notice or cause, at any time.

The employee handbook contained the following clause:

If you are absent without authorization for two (2) work days and have not called or attempted to report in to your supervisor or manager, the Company may assume you have abandoned your position, and thereby voluntarily resigned employment with the Company as of your last day worked.

Bell’s time sheet shows that Bell last worked for Southview on October 8, 2003. Next to the October 8 entry, a note reads, “Failure to return from leave.” Bell did not write that note and did not sign the timesheet. Bell testified at trial that he had never seen that timesheet. He also denied ever having been placed on, or taking, “leave.”

Southview’s general sales manager, Adam Delacy, testified that Bell’s employment was terminated on October 9, 2003, for failing to return from leave. Delacy testified that he filled out a “Termination and Payroll Status Change Form” on October 9, 2003, and checked “Resignation” as the reason for the Bell’s termination. Betty Bullert, who handled payroll for Southview, testified that Bell’s payroll record does not contain any record of payment to Bell after October 9, 2003.

Southview participates in monthly car sales at the state fairgrounds but no witnesses from Southview were able to recall the dates of any of the sales that occurred in October 2003. Delacy testified that he did not know whether Bell was still employed by Southview when the fairgrounds sale occurred in October 2003 or whether Bell worked at the sale. RJ testified that the sales only occurred once per month, and were never “back-to-back.” RJ testified that Bell worked at the fairgrounds sale in October 2003, but was not certain of the dates of the sale or when Bell worked at the sale.

Bell testified that there were back-to-back fairground sales in October 2003, one that ran from Wednesday, October 8 to Monday, October 13 (excluding Sunday), and one that ran from Wednesday, October 15 to Monday, October 20 (excluding Sunday). Bell testified that he worked at the fairgrounds sale for two days during the October 8-13 sale and worked at the fairgrounds sale on October 16 and 17. Bell had no explanation for his hours not being noted on his time sheet and for not being paid for the days he claimed to have worked after October 8.

Jacqueline Howard, a long-time friend of Bell and his family, testified that she took Bell’s children to the fairgrounds sale on October 16 because she was interested in a used car. She testified that she saw Bell, who was apparently working for Southview at the fairgrounds sale, at about 6:30 or 7:00 p.m. on October 16. Howard was able to recall the dates by referring to her cell phone records, which included a telephone call to Southview on October 9, followed by a telephone call to RJ’s cell phone on the same date. Howard testified that RJ was at the fairgrounds when she called him on October 9, and RJ told her that Bell was “around somewhere” on October 9.

To explain why he removed the Jeep from the Southview lot, Bell testified that, at about 6 p.m. on October 16, he spoke to a customer who was interested in the customized Jeep that was on the Southview lot, and the customer was going to come back to the fairgrounds the next day to see the Jeep. An investigating officer determined that when Bell used the security guard’s cell phone just before taking the Jeep, Bell had called an inoperable number and his own voice mail. At trial, Bell denied that he told the guard he was calling RJ or that he pretended to leave a message for RJ about taking the Jeep. Bell testified that he used the guard’s cell phone to check his own voice mail. Bell acknowledged that he did not have explicit permission from Johnson, Delacy, or any other Southview representative to take the vehicle, but testified that he could drive any car on the lot that he wanted to drive. RJ, however, testified that the Jeep was “all dressed up” with extra chrome, that no one was allowed to drive this Jeep without his permission, and that vehicles were to be released only to or from the fairgrounds sale during business hours; a rule that he never deviated from.

Bell testified twice that he took the Jeep directly from the Southview lot to the fairgrounds. Bell testified that he parked the Jeep right in front of the test-drive opening and left the Jeep at the fairgrounds. Later in his testimony, Bell said that he first drove the Jeep to his home from the Southview lot and took it to the fairgrounds the next morning. The Jeep was recovered at the end of October 2003 in Hennepin County.

Bell testified that he decided to resign from Southview on the morning of October 17, when he learned that he would not be paid the amount he expected for working at the sale. Bell testified that he called Gregory Daniel, a sales manager at another dealership, and told Daniel that he was resigning from Southview and going to work for Daniel. Daniel, who had asked Bell to come to work for him, testified that he gave Bell a ride home from the fairgrounds, but he did not recall the date.

RJ testified that in order for Bell to resign, Bell would have had to give notice to RJ, Delacy, or another manager. RJ testified that he could not remember Bell giving him a resignation, “[b]ut we were on good speaking terms so I’m sure there was something but I’m not quite sure what it was.”

Bell was charged with one count of theft of a motor vehicle for taking the Jeep.[1] After the district court denied Bell’s motion to dismiss the charges for lack of probable cause, Bell waived his right to a jury trial. At his bench trial, Bell admitted that he had been convicted of a gross-misdemeanor in 1995 and for theft of a motor vehicle in 1994.

The district court found Bell guilty and imposed the presumptive guidelines sentence. This appeal followed.

D E C I S I O N

Bell argues that the evidence is insufficient to show that he took the Jeep without consent and with intent to permanently deprive Southview of possession. “When the sufficiency of the evidence is raised on appeal, this court’s standard of review is the same for bench trials as it is for jury trials.” State v. Lehikoinen, 463 N.W.2d 770, 772 (Minn. 1990). This court’s review is limited to a careful analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, is sufficient to allow the district court to reach the verdict that it did. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). The reviewing court must assume the district court 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 district court, 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. Bernhardt v. State, 684 N.W.2d 465, 476-77 (Minn. 2004).

“Direct evidence is evidence that is based on personal knowledge or observation and that, if true, proves a fact without inference or presumption.” Id.at 684 N.W.2d 465, 477 n.11 (quotations omitted). “Circumstantial evidence is defined as evidence based on inference and not on personal knowledge or observation and all evidence that is not given by eyewitness testimony.” Id.(quotations omitted).

A conviction “based entirely on circumstantial evidence merits stricter scrutiny than convictions based in part on direct evidence.” State v. Jones, 516 N.W.2d 545, 549 (Minn. 1994). But “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. Jones, 516 N.W.2d at 549. A fact-finder, however, is in the best position to evaluate circumstantial evidence, and a verdict is entitled to due deference. Webb, 440 N.W.2d at 430.

“Whoever does any of the following commits theft . . . (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 . . . .” Minn. Stat. § 609.52, subd. 2(1) (2002). Intent is generally determined from the defendant’s words and actions in light of the surrounding circumstances. State v. Hardimon, 310 N.W.2d 564, 566 (Minn. 1981). “Claim of right” means that a person has a reasonable belief of license or permission. State v. Brechon, 352 N.W.2d 745, 748 (Minn. 1984).[2] “If the defendant has a claim of right, he lacks the criminal intent which is the gravamen of the offense.” Id. at 749. “If the state presents evidence that defendant has no claim of right, the burden then shifts to the defendant who may offer evidence of his reasonable belief that he has a property right . . . .” Id. at 750. “Subjective reasons not related to a claimed property right or permission are irrelevant and immaterial to the issue of claim of right.” Id.

In this case, it is undisputed that Bell intentionally took the Jeep and that it was Southview’s property. Bell argues that as a salesman for Southview he “had the ability to take and drive dealership vehicles . . . or to show or deliver a vehicle to a customer or a sales site,” and that the state failed to show that he knew his employment was terminated at the time he took the Jeep.

Despite evidence that Bell was at the fairgrounds on October 16, the circumstantial evidence leads only to a conclusion that Bell’s employment with Southview was terminated as of October 9. Bell has no explanation for why his timesheet does not show that he worked from October 9-15 or why he did not claim compensation for time he claims he worked after October 9. The direct evidence established that no cars were to leave the Southview lot after business hours, Bell did not have permission to drive the Jeep that he took, Bell could not have entered the fairgrounds at the time he took the Jeep from the Southview lot, and Bell used a ruse to reassure the security guard that he had authority to take the Jeep. This evidence is sufficient to support the conclusion that Bell took the Jeep without consent.

Bell’s testimony about where he took the Jeep was inconsistent, but it is undisputed that Bell did not return the Jeep to the Southview lot or deliver it to anyone connected with Southview at the fairgrounds. The Jeep was not recovered for weeks and was eventually found in Hennepin County. Viewing the evidence as we must, in the light most favorable to the verdict, the evidence is sufficient to support the finding that Bell took the Jeep with intent to permanently deprive Southview of possession of the Jeep.

Affirmed.

* Retired judge of the district court, serving the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.

[1] Bell was also charged with one count of unauthorized use of a motor vehicle for failing to return a demonstration vehicle that he was allowed to drive while employed at Southview. He was acquitted of that charge.

[2] Brechnon addressed trespass, but this court has applied the Brechnon claim-of-right analysis to theft. See State v. Cubbage, No. A04-1411, 2005 WL 468640 (Minn. App. May 25, 2005), review denied (Minn. May 25, 2005).