Opinion
No. C7-95-1876.
Filed June 11, 1996.
Appeal from the District Court, Blue Earth County, File No. K3941032.
Hubert H. Humphrey III, Attorney General, Alison E. Colton, Assistant Attorney General, (for Respondent).
Ross E. Arneson, Blue Earth County Attorney, (for Respondent).
John M. Stuart, State Public Defender, Ann McCaughan, Assistant State Public Defender, (for Appellant).
Considered and decided by Lansing, Presiding Judge, Kalitowski, Judge, and Short, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1994).
UNPUBLISHED OPINION
This appeal challenges a jury conviction for theft by false representation. The jury instructions adequately explained the charge, and sufficient evidence supported the conviction. We affirm, but modify the restitution amount.
FACTS
A jury convicted Marilyn Strand of theft for misrepresenting her eligibility for housing assistance from July 1993 to April 1994. Strand received Section Eight housing assistance from 1986 until 1994 and knew that she was required to report in person changes in income or household composition.
The Blue Earth County Housing and Redevelopment Authority certified Strand's eligibility each year. In her March 1993 review, Strand reported a household consisting of herself and her two children. During the certification conference, she told her caseworker that she intended to marry and discussed the effect of marriage on her eligibility for benefits. Strand married in June 1993. She testified at trial that she attempted to tell her caseworker about the marriage in a telephone conversation in July 1993. The caseworker testified that she had no conversation with Strand between March 1993 and March 1994.
At the 1994 recertification interview Strand told her caseworker that she was married and reported her family's total income, including her husband's income. The total family income disqualified Strand from household assistance, and her benefits were terminated.
Strand's theft conviction was based on the benefits she accrued between her marriage and the March 1994 benefit termination. Strand contends that her conviction should be reversed because the district court failed to instruct the jury to determine the value of the wrongfully-obtained benefits, and the verdict is not supported by the evidence.
DECISION I
A reviewing court examines jury instructions as a whole to determine whether they "fairly and adequately explain the law" at issue. State v. Flores , 418 N.W.2d 150, 155 (Minn. 1988) (citations omitted). Within these limits district courts have the discretion to select particular jury instructions, and the decision will be upheld absent an abuse of discretion. State v. Blasus , 445 N.W.2d 535, 542 (Minn. 1989).
The specific charge against Strand was theft by false representation in violation of section 609.52, subd. 2(3) (1994). The district court instructed the jury on the charge by reading CRIMJIG 16.06, defining the elements of theft by false representation. 10 Minnesota Practice , CRIMJIG 16.06 (1990). Neither the statute nor the model jury instruction requires the jury to determine the specific value of the wrongfully-obtained property.
Strand did not ask the district court to instruct the jury to determine the value of the wrongfully-obtained benefits, and she did not object to the instructions at trial. Failure to object to instructions waives consideration of the instructions on appeal unless the instruction is fundamental error. State v. Edwards , 343 N.W.2d 269, 277 (Minn. 1984).
The district court's omitting an instruction on value is neither fundamental nor error. Section 609.52, subd. 3(2), sets forth the sentences for theft by false representation. The severity of sentence depends on, among other factors, the value of the stolen property. CRIMJIG 16.22 provides an instruction for determining value when it is a disputed question. 10 Minnesota Practice , CRIMJIG 16.22 (1990 1996 Supp.). Value was not disputed in Strand's trial, and the question raised on appeal is governed by State v. Olson , 379 N.W.2d 524 (Minn. 1986).
In Olson the supreme court recognized the district court's responsibility to resolve a fact issue on value for purposes of applying the sentencing guidelines. 379 N.W.2d at 527-28. When the jury has made a determination on the statutory elements and the amount of the theft is undisputed, the absence of an explicit instruction on value is not reversible error. Id. The instructions referred to the housing benefits, and the correct amount of the benefits had been stipulated during trial. The stipulated evidence plainly showed an amount greater than $2,500. On these facts the jury instructions adequately stated the elements of the offense.
II
A jury verdict will be upheld on review when, given the facts in the record and the legitimate inferences that may be drawn from those facts, a jury could reasonably find that the defendant was guilty of the offense charged. State v. Merrill , 274 N.W.2d 99, 111 (Minn. 1978). We are required to view the evidence in the light most favorable to the verdict. Id .
The central issue at trial was whether Strand informed the housing authority of her marriage. Strand testified that during a telephone conversation with her caseworker, she tried to tell her caseworker that she had married. The caseworker testified that no telephone conversation occurred and that Strand did not inform the housing authority of her marriage. The controverted testimony presented the jury with a credibility issue that the jury was required to resolve.
Strand did not contest the dates of her ineligibility or the amount of benefits she obtained between her marriage and the benefits termination. On the disputed telephone call, the jury rejected Strand's testimony and accepted the caseworker's testimony. The credited testimony is sufficient to support the conviction.
III
Even though the undisputed testimony established that the benefits between March 1993 and March 1994 amounted to $2,915, the restitution order required Strand to pay $3,161 in restitution to reimburse the county for the wrongfully-obtained benefits. The state concedes that the increased restitution sum is the result of clerical error. We therefore amend the restitution to the correct amount of $2,915.