This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).

STATE OF MINNESOTA

IN COURT OF APPEALS

C7-98-712

State of Minnesota,

Respondent,

vs.

Frank Donald Larson,

Appellant.

Filed January 19, 1999

Affirmed

Short, Judge

Blue Earth County District Court

File No. K6962065

Michael A. Hatch, Attorney General, Thomas R. Ragatz, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent)

Douglas H.R. Olson, 510 First Avenue North, Suite 610, Minneapolis, MN 55403 (for appellant)

Considered and decided by Short, Presiding Judge, Randall, Judge, and Holtan, Judge.[*]

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

SHORT, Judge

Frank Donald Larson owned and operated Southwest Leasing, a commercial equipment and vehicle leasing company, which failed to refund customers' security deposits or deliver collected excise fees to the State of Minnesota. A jury convicted Larson of conspiracy to commit theft of the security deposits, aiding and abetting theft of the security deposits, and failure to pay over state funds. On appeal, Larson argues: (1) the state failed to prove the security deposit funds were the "property of another" under the theft statutes; and (2) failure to pay over state funds does not apply to automobile excise fees received by an automobile dealership. We affirm.

D E C I S I O N

We review questions of law de novo. State v. Murphy, 545 N.W.2d 909, 914 (Minn. 1996). However, in reviewing the sufficiency of the evidence, we will not retry the facts, but instead view the evidence in the light most favorable to the jury's verdict and assume the jury believed the state's witnesses and disbelieved any contrary evidence. State v. Merrill, 274 N.W.2d 99, 111 (Minn. 1978).

I.

Larson argues the state was required and failed to prove a trust or trust-like limitation existed on his use of the security deposits in order to convict him under the theft statute. See State v. Marshall, 541 N.W.2d 330, 332 (Minn. App. 1995) (holding state must establish trust or trust-like limitation on use of advance payment for services to show taking of property of another under theft statute), review denied (Minn. Feb. 27, 1996). However, a security deposit is different from an advance payment because a deposit is returned, not repaid. See, e.g., Alpha Venture/Vantage Properties v. Creative Carton Corp., 370 N.W.2d 649, 651 (Minn. App. 1985) (noting lease agreement required security deposit to be "returned," not "repaid"), review denied (Minn. Sept. 19, 1985). Whether security deposits are another's property under the theft statute is a question of fact for the jury. See Minn. Stat. § 609.52, subd. 2(1) (1998) (defining theft); Galbraith v. Wood, 124 Minn. 210, 214, 144 N.W. 945, 947 (1914) (distinguishing advance payment for rent from security deposit).

The record demonstrates Southwest Leasing and Larson: (1) received security deposits from customers at the inception of their leases; (2) drafted and signed leases stating the customer was paying a "refundable security deposit;" (3) agreed that customers believed their deposits would be refunded upon completion of the lease; (4) segregated some of the security deposits in a separate bank account; (5) spent most of the security deposit funds on speculative international investments; and (6) admitted to owing security deposits, repeatedly assured customers the security deposits would be returned, wrote out the security deposit refund checks, stored the checks in two shoe boxes, but refused to give customers refunds at the conclusion of their leases. Given these facts, there is sufficient evidence supporting the jury's finding that the security deposits were the property of another. See Merrill, 274 N.W.2d at 111 (granting deference to jury's interpretation of facts).

Larson also argues the trial court committed reversible error by failing to instruct the jury on what constitutes "property of another" and refusing to give his requested instruction on "money paid in advance." However, we give great latitude to the trial court's selection of jury instructions. State v. Auchampach, 540 N.W.2d 808, 816 (Minn. 1995). After a careful review of the record, we conclude the trial court properly rejected Larson's instruction because security deposits are not advance payments. Moreover, the trial court correctly gave CRIMJIG 16.02, which covered the crime charged. See 10 Minnesota Practice, CRIMJIG 16.02 (1986) (providing instruction for theft--taking property of another). Under these circumstances, the trial court did not abuse its discretion in charging the jury.

II.

Larson further argues the crime of failing to pay over state funds does not apply to an automobile dealer's failure to pay excise taxes. See State v. Kalvig, 296 Minn. 395, 397-99, 209 N.W.2d 678, 680 (1973) (holding welfare fraud is specific provision that is exception to general provision of theft statute); Minn. Stat. § 645.26, subd. 1 (1998) (dictating special provisions prevail over general provisions if conflicting). Larson claims he should be penalized, if at all, under the motor vehicle title code. We disagree.

Minn. Stat. § 168A.30 (1998) and Minn. Stat. § 609.445 (1998) do not cover the same conduct. The catchall provision in Minn. Stat. § 168A.30, subd. 2(6) makes it a misdemeanor to violate Minn. Stat. §§ 168A.04, subd. 2 (1998) or 168A.11, subd. 1 (1998) by failing to deliver taxes and fees within ten days. See Minn. Stat. § 168A.30, subd. 2(6) (recognizing misdemeanor for willful failure to deliver, within ten days, taxes collected on sale of motor vehicle). By contrast, Minn. Stat. § 609.445 regulates a failure to make payments. See Minn. Stat. § 609.445 (defining crime for intentionally refusing or omitting to pay money received on behalf of state). Because the statutes do not necessarily cover the same conduct, there is no irreconcilable conflict and the prosecutor properly exercised discretion in prosecuting Larson under Minn. Stat. § 609.445. See State v. Chryst, 320 N.W.2d 721, 722-23 (Minn. 1982) (concluding prosecutor had discretion to prosecute conduct under theft statute or odometer tampering statute because conduct covered was different and no irreconcilable conflicts existed between the statutes).

Southwest Leasing collected $12,933.22 in excise fees on 37 vehicle transactions. It knew the money was collected for the state and intentionally failed to deliver it. Given these facts, the jury had sufficient evidence to find Larson intentionally failed to pay over state funds. See Merrill, 274 N.W.2d at 111 (granting deference to jury's interpretation of facts).

Affirmed.

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