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Minnesota Court of AppealsJun 24, 1997
No. CX-96-1946. (Minn. Ct. App. Jun. 24, 1997)

No. CX-96-1946.

Filed June 24, 1997.

Appeal from the District Court, Ramsey County, File No. K8961097.

Hubert H. Humphrey, III, Attorney General, and

Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant County Attorney, (for respondent)

John M. Stuart, State Public Defender, Melissa Sheridan, Assistant State Public Defender, (for appellant)

Considered and decided by Short, Presiding Judge, Klaphake, Judge, and Schultz, Judge.

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

This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1996).


A jury convicted Daniel Windish of one count of theft greater than $2,500 in violation of Minn. Stat. § 609.52, subd. 2(1). On appeal, Windish argues the trial court erred in: (1) refusing to instruct the jury on the lesser offense of theft with intent to temporarily deprive; and (2) finding there was sufficient evidence for the jury to conclude beyond a reasonable doubt that the value of the stolen trailer exceeded $2,500. We affirm.


The decision whether to instruct the jury on lesser offenses is within the sound discretion of the trial court. Bellcourt v. State , 390 N.W.2d 269, 273 (Minn. 1986); see State v. Auchampach , 540 N.W.2d 808, 815-16 (Minn. 1995) (holding trial courts are allowed considerable latitude in selecting jury charge language and in determining which lesser degrees of a crime should be submitted to jury). In exercising that discretion, trial courts should decide

whether the evidence reasonably supports a conviction of the lesser degree and, at the same time, is such that a finding of not guilty of the greater offense would be justified.

Id. at 815. There must be a rational basis for the submission of the charge. State v. Griffin , 518 N.W.2d 1, 3 (Minn. 1994).

Windish argues the trial court erred in refusing to instruct the jury on a lesser offense of theft with intent to temporarily deprive the owner of possession. Compare Minn. Stat. § 609.52, subd. 2(5) (1996) (requiring only "intent to exercise temporary control") with Minn. Stat. § 609.52, subd. 2(1) (1996) (providing necessary element of crime is "intent to deprive the owner permanently of possession of the property"). While Windish voluntarily relinquished control over the trailer he had stolen, the record demonstrates: (1) Windish did not testify regarding his intent in taking the trailer; (2) he submitted no other evidence tending to show his intent only to deprive temporarily; and (3) witnesses for the prosecution testified that Windish and his accomplice knew they were being followed and abandoned the trailer only after they failed to escape during a high-speed chase. Under these circumstances, we cannot say the trial court abused its discretion in concluding there was no rational basis for submission of the lesser theft charge.


In reviewing a claim of insufficiency of the evidence, this court ascertains whether a jury, acting with "due regard for the presumption of innocence and for the necessity of overcoming it by proof beyond a reasonable doubt, could reasonably conclude that a defendant was proven guilty of the offense charged." State v. Davidson , 481 N.W.2d 51, 58 (Minn. 1992) (citation omitted). We view the evidence in the light most favorable to the verdict and assume the jury believed the state's evidence and disbelieved any contrary evidence. State v. McKenzie , 511 N.W.2d 14, 17 (Minn. 1994).

Windish argues there was insufficient evidence for the jury to conclude beyond a reasonable doubt that the value of the stolen trailer was greater than $2,500. See Minn. Stat. § 609.52, subds. 1(3) (1996) (defining "value" as "the retail market value at the time of the theft, or if [that] value cannot be ascertained, the cost of replacement of the property within a reasonable time after the theft"), 3(2) (1996) (providing for greater period of imprisonment if value of stolen property exceeds $2,500). The record demonstrates: (1) the owner of the trailer purchased the unassembled pieces of the trailer in 1991 and constructed the trailer, adding a substantial number of upgrades; (2) the market value of the refurbished trailer was not readily available; (3) although Windish's expert witness testified that the retail market value of the trailer was, at most, $2,000, the state's expert testified that it was at least $3,500; and (4) the owner of the trailer testified that he hoped to sell the trailer for $3,500, but would put it on the market for $3,000 and would take $2,500 for it if necessary. Given these facts, there is sufficient evidence for the jury to conclude the trailer's value exceeded $2,500. See State v. Bias , 419 N.W.2d 480, 484 (Minn. 1988) (noting jury determines witness credibility and resolves any conflicts in testimony).

Notwithstanding the existence of evidence to support the jury's verdict, Windish argues the admission by the owner that he would sell the trailer for $2,500, not an amount more than $2,500, is conclusive as to value. See, e.g. , State v. Stout , 273 N.W.2d 621, 623 (Minn. 1978) (holding price tag on stolen ring was not conclusive as to value, and relying instead on owner's testimony that he would sell the item wholesale for less than $2,500 as conclusive proof that value of ring did not exceed $2,500). While the supreme court's holding in Stout is germane to the value calculation of new items commonly bought and sold on the retail market, it is not properly applied in cases dealing with used or refurbished equipment, which is not as easily valued as retail goods. See Herme v. State , 384 N.W.2d 205, 208 (Minn.App. 1986) (distinguishing Stout holding on this basis), review denied (Minn. May 22, 1986). Thus, the jury's finding that the refurbished trailer's value exceeded $2,500 is not defeated by the owner's testimony. Affirmed.