State v. Pirsig

• Decision Date: 28 October 2003
• Docket Number: No. C0-02-1688.,C0-02-1688.
• Citation: 670 N.W.2d 610
• Parties: STATE of Minnesota, Respondent, v. David Charles PIRSIG, Appellant.
• Court: Minnesota Court of Appeals

670 N.W.2d 610

STATE of Minnesota, Respondent, v. David Charles PIRSIG, Appellant.

No. C0-02-1688.

Court of Appeals of Minnesota.

October 28, 2003.

Mike Hatch, Attorney General, St. Paul, and Brian Roverud, Faribault County Attorney, Blue Earth, for respondent.

Michael C. Davis, Special Assistant State Public Defender, St. Paul, for appellant.

Considered and decided by SHUMAKER, Judge, WILLIS, Judge, and STONEBURNER, Judge.

OPINION

GORDON W. SHUMAKER, Judge.

This case arises out of charges that appellant David Pirsig and his father, Edward Pirsig, stole grain from Paul and Charles More during 1996, 1997, and 1998. After a seven-day trial during April 2002, the jury found appellant guilty of two counts of theft of grain by swindle, over $35,000; 25 counts of theft of corporate property; and two counts of theft. Appellant now challenges the convictions, claiming that there was insufficient evidence to support them, the district court abused its discretion in admitting certain testimony on field maps, and the district court erred in substituting an alternate juror for a juror who became ill after the court released the jury to deliberate but before actual deliberations had commenced. Appellant also filed a pro se supplemental brief, claiming that the county attorney violated Minnesota Rules of Professional Conduct and Minn.Stat. § 388.08 (2002).

FACTS

Appellant David Pirsig and his father Edward Pirsig ceased their own farming operations because of financial problems. At the time, the Pirsigs were under contract to deliver a certain amount of grain to Peavey Elevators. Although the Pirsigs had some carry-over grain sales in early 1996, they were not able to complete their delivery obligation and Peavey cancelled the contract.

After the Pirsigs stopped their own farming operations, they entered into a seven-year custom-farming agreement with Paul and Charles More. The Mores were sellers of fertilizer, chemicals, and crop inputs to farmers in south-central Minnesota. In the early 1990s, the Pirsigs were among their customers.

In general, the custom-farming contract allowed the Pirsigs to continue to farm and to use their own equipment, but, because of the Pirsigs' financial status, the Mores paid the upfront costs of land rental and crop inputs and paid the Pirsigs by acreage and crop. The Pirsigs were required by their contract to cultivate the land and to plant, harvest, dry, store, and deliver the grain crop. Because the Pirsigs had an existing relationship with the landowners from whom they had leased land for their own operations, the Mores authorized them to sign leases for their custom farming. Under the contract with the Mores, the Pirsigs farmed approximately 2,800 acres from 1996 through 1998.

Despite the custom-farming contract between the Pirsigs and the Mores, it was not commonly known in the local agricultural community that the Mores were financing the Pirsigs' operations. Rather, many operators of agricultural businesses believed that the Pirsigs were continuing to do their own farming. For example, David Pirsig sold grain to Midwest Soya during the early 1990s and continued to sell grain to Midwest Soya from 1996 through 1998 under the name D & D Farms. The owner of Midwest Soya believed that David Pirsig was doing his own farming under that name. The Pirsigs did not report as income the payments for grain they sold to Midwest Soya but did deposit the receipts in a bank. This grain had test weights and moisture content consistent with the grain the Pirsigs delivered on behalf of the Mores.

To help manage their fields, in 1996 the Mores installed a grain monitor in the combine the Pirsigs used to harvest the grain under the custom-farming contract. The grain monitor uses a global positioning system (GPS) to collect data on specific field locations and crop yields for those locations. The data collected from the GPS monitor can be downloaded onto a Geographic Information System (GIS) software application. The GIS takes the location data from the GPS and overlays it onto a map that identifies certain correlations—such as soil types, combine swath width, and copy yields—for a particular field location.

In 1998, the Mores learned that they were short approximately 12,400 bushels of grain. Based on information from David Pirsig, they initially believed the shortage was caused by grain damage and was within an acceptable 10% margin of error based on a large grain yield. The Mores eventually began to suspect that the Pirsigs had stolen the grain.

The Mores collected the data from the combine's grain monitor and had it analyzed. The analysis showed that the monitor had been shut off at various times during combine use across various fields. The analysis also revealed that the swath-width setting on the monitor, registering the width of the stroke of the combine's cutting blade, had been changed at various times without a corresponding change to the actual width of the combine blade. The changed setting resulted in an alteration of the crop-output data and actually lowered the crop-yield data. At trial, David Pirsig contended that the monitor was faulty and that he and his father had told the Mores of the monitor problems. The Pirsigs' cousin, who operated the combine, testified that the monitor had broken down a couple of times and had lost communication with the satellite. He also testified that the Pirsigs instructed him to change the swath-width setting without making a corresponding change to the combine's blade. An acquaintance of the Pirsigs testified that, after the 1998 harvest, David Pirsig said that the repayment of a $10,000 loan David Pirsig obtained from the acquaintance "had to wait until Mores started hauling before [David Pirsig] could get away with some," and "last year [David Pirsig] got away with $40,000."

Ultimately, David Pirsig was found guilty by a jury of two counts of theft of grain by swindle, over $35,000; 25 counts of theft of corporate property; and two counts of theft. This appeal followed.

ISSUES

1. Is the evidence sufficient to prove beyond a reasonable doubt that appellant committed theft by swindle, conspiracy to commit theft by swindle, theft of corporate property, and theft over $2,500?

2. Did the district court abuse its discretion by admitting certain expert testimony?

3. Is it reversible error for the court to replace a principal juror with an alternate before deliberations had begun and after defense counsel informed the court that appellant consented to the substitution even though appellant did not personally appear and express his consent?

4. Did the county attorney violate either the Minnesota Rules of Professional Conduct or Minn.Stat. § 388.08 (2002) by acting with a conflict of interest?

ANALYSIS

I

In determining whether the evidence is sufficient to support a conviction, we view that evidence in a light most favorable to the verdict and assume that the jury disbelieved any evidence contrary to that verdict. State v. Chomnarith, 654 N.W.2d 660, 664 (Minn.2003). On appeal, we do not retry the case, but review the record to determine whether the evidence was sufficient to permit the jurors to reach their verdict. State v. Schneider, 597 N.W.2d 889, 895 (Minn.1999). We will not overturn the jury's verdict if, "giving due regard to the presumption of innocence and to the prosecution's burden of proving guilt beyond a reasonable doubt, the jury could reasonably have found the defendant guilty of the charged offenses." Chomnarith, 654 N.W.2d at 664.

Circumstantial evidence is given the same weight as any other evidence as long as the circumstances proved are consistent with the hypothesis that the accused is guilty and inconsistent with any rational hypothesis except that of guilt. State v. Gates, 615 N.W.2d 331, 337 (Minn. 2000). To succeed in a challenge to a conviction solely based on circumstantial evidence, a convicted person must point to evidence within the record that is consistent with a rational theory other than guilt. Id. at 338. However, "possibilities of innocence do not require reversal of a jury verdict so long as the evidence taken as a whole makes such theories seem unreasonable." Id. (quoting State v. Ostrem, 535 N.W.2d 916, 923 (Minn.1995)).

A person commits a theft when he "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) (1996). A theft by swindle occurs when a person, "whether by artifice, trick, device, or any other means, obtains property or services from another person." Minn.Stat. § 609.52, subd. 2(4) (1996). Theft by swindle requires an affirmative intent to defraud. State v. Flicek, 657 N.W.2d 592, 598 (Minn.App.2003). Theft of corporate property occurs when a person, "with intent to defraud, diverts corporate property other than in accordance with general business purposes." Minn.Stat. § 609.52, subd. 2(15) (2000). Conspiracy to commit theft by swindle requires that a person who conspires with another to commit the crime "does some overt act in furtherance of such conspiracy." Minn.Stat. § 609.175, subd. 2 (1996).

David Pirsig argues that the state failed to present sufficient evidence of his guilt. He argues that the state's primary evidence that D & D Farms sold grain belonging to the Mores was based on inaccurate and unreliable data from the combine grain monitor. He argues that the grain-monitor data "does not establish the value of the resulting loss" because it could not take into account such variables as the existence of weeds, putting the combine into reverse, or change in field terrain. Finally, he argues that his statements to an acquaintance that appellant "had to wait until Mores started hauling before [appellant] could get away with some" and "last year [appellant] got...