State v. Carlson, 031416 MNCA, A15-0179
| Opinion Judge | SCHELLHAS, Judge. |
| Party Name | State of Minnesota, Respondent, v. Virginia Marie Carlson, Appellant. |
| Attorney | Lori Swanson, Attorney General, St. Paul, Minnesota; and Michael O. Freeman, Hennepin County Attorney, Brittany D. Lawonn, Assistant County Attorney, Minneapolis, Minnesota (for respondent). Melissa Sheridan, Eagan, Minnesota (for appellant). |
| Judge Panel | Considered and decided by Worke, Presiding Judge; Schellhas, Judge; and Reyes, Judge. |
| Case Date | March 14, 2016 |
| Court | Minnesota Court of Appeals |
UNPUBLISHED OPINION
Hennepin County District Court File No. 27-CR-11-29606.
Appellant challenges her conviction of felony theft by swindle on the basis that it is not supported by sufficient evidence, and she argues that the jury instruction on accomplice liability and misconduct by the prosecutor during closing argument were plain errors that affected her substantial rights.1 Appellant also makes several pro se arguments. We affirm.
FACTS
Appellant Virginia Marie Carlson and her husband Philip Lee Carlson owned Sugar woods Office Center LLC, which owned 49% of Amber Woods Office Center LLC.2 In September 2006, Amber Woods and First Commercial Bank closed on a construction loan to build an office condominium (Amber Woods project). The loan agreement provided that loan funds would be disbursed over time in response to requests to pay for completed work on the Amber Woods project (draw requests) and supporting documents regarding completed work, including invoices and lien waivers from subcontractors.
Interspace, an entity owned by Virginia Carlson and Philip Carlson, was the general contractor for the Amber Woods project. In or around October 2007, the bank received draw request one from Interspace. Draw request one was unsigned; Amber Woods and Interspace were listed below the blank signature lines. Draw request one was accompanied by supporting documents including an invoice purportedly from Sindbad Construction (Sindbad) and a lien waiver signed by Virginia Carlson for Interspace and purportedly signed by John Sindbad for Sindbad. In reliance on draw request one and its supporting documents, the bank released $173, 988.73 in loan funds; the funds were disbursed by a check payable to "Sunblad [sic] & Interspace." John Sindbad purportedly endorsed the check, and the funds were deposited into an Interspace account. Interspace subsequently issued a check, signed by Virginia Carlson, to "Sunblind [sic]" in the amount of $55, 860.91.
In or around November 2007, the bank received draw request two from Interspace. Draw request two was signed by Philip Carlson for Interspace and Amber Woods. Draw request two was accompanied by supporting documents including an invoice purportedly from Sindbad and a lien waiver signed by Virginia Carlson for Interspace and purportedly signed by John Sindbad for Sindbad. The supporting documents also included an invoice purportedly from Alpine Landscape Inc. and a lien waiver signed by Virginia Carlson for Interspace and unsigned by any Alpine agent. In reliance on draw request two and its supporting documents, the bank made two distinct releases of loan funds: a $224, 689.64 check whose payees were "Interspace & Sunbald [sic], " and a $38, 126.25 check whose payees were "Interspace & Alpine." The larger check was endorsed by John Sundblad; the smaller check was endorsed "Interspace Logan Ryan, for Alpine." Both checks were deposited into an Interspace account. Interspace subsequently issued a check, signed by Virginia Carlson, to Sundblad in the amount of $121, 686.57. Alpine received no portion of the released funds.
In or around January 2008, the bank received draw request three from Interspace. Draw request three was signed by Philip Carlson for Interspace and Amber Woods. Draw request three was accompanied by supporting documents including an invoice from Logan Ryan Corporation, which was owned by Virginia Carlson and Philip Carlson, and a lien waiver signed by Virginia Carlson for Interspace and illegibly signed on behalf of Logan Ryan.3 In or around February 2008, in reliance on draw request three and its supporting documents, the bank released $31, 985 in loan funds; the funds were disbursed by a check whose payee was Logan Ryan. The check was endorsed "Logan Ryan Corporation, " and the funds were deposited into a Logan Ryan account.
In or around May 2008, the bank received draw request four from Interspace. Draw request four was signed by Philip Carlson for Amber Woods and was signed by Virginia Carlson for Interspace and Amber Woods. Draw request four was accompanied by supporting documents including an invoice from Logan Ryan and a lien waiver illegibly signed on behalf of Logan Ryan.4 In reliance on draw request four and its supporting documents, the bank released $164, 522 in loan funds; the funds were disbursed by a check whose payee was Logan Ryan. The check was endorsed "partial" and "Logan Ryan Corp., " and the funds were deposited into a Logan Ryan account.
In or around July 2008, the bank received draw request five from Interspace. Draw request five was unsigned; Interspace, Amber Woods, Roos, Leuer, and Fenning were listed below the blank signature lines. Draw request five was accompanied by supporting documents including an invoice from Logan Ryan and a financial statement purportedly from Palo Companies Inc. The bank released no loan funds in reliance on draw request five and its supporting documents because subcontractors had begun to file liens against the Amber Woods project. Work stopped on the Amber Woods project in late 2008 or early 2009.
In or around October 2010, Roos and an agent of the bank went to police and reported suspected fraud by Virginia Carlson and Philip Carlson. Police investigated and determined that Virginia Carlson and Philip Carlson had committed "some fraud . . . or some theft by swindle" in connection with the five draw requests. In September 2011, respondent State of Minnesota charged Virginia Carlson with four counts of felony theft by swindle and one count of attempted felony theft by swindle, under Minn. Stat. § 609.52, subds. 2(4), 3(1) (2006); each count was charged with reference to Minn. Stat. § 609.05 (2006), the accomplice-liability statute.5 Philip Carlson was identically charged, and the district court granted the state's motion to join the cases against Virginia Carlson and Philip Carlson.
The district court conducted a consolidated jury trial in August 2014. The state presented evidence that the five draw requests and their supporting documents were fraudulent in that the Sundblad, Alpine, and Palo invoices/statements did not originate from those companies; the Sundblad and Palo invoices/statements overreported the work completed by and the amounts owed to those companies; the Logan Ryan invoices reflected work that was not completed by that company and sought amounts that consequently were not owed to that company; and the lien waivers reflected payments that, in whole or in part, were not actually made to the companies whose waivers were sought. The state also presented evidence that each of the first four draw requests resulted in the bank's release of loan funds that ultimately came into the possession of Virginia Carlson and Philip Carlson. The jury found Virginia Carlson and Philip Carlson guilty as charged, and Virginia Carlson and Philip Carlson each were convicted of a single count (count one) of felony theft by swindle and sentenced to 21 months' imprisonment, with execution stayed for 5 years and 365 days' local confinement.
Virginia Carlson appeals.6
DECISION
I.
Virginia Carlson challenges the sufficiency of the evidence for her conviction. Assessment of the sufficiency of the evidence involves "a painstaking review of the record to determine whether the evidence and reasonable inferences drawn therefrom, viewed in a light most favorable to the verdict, were sufficient to allow the jury to reach its verdict." State v. Vang, 847 N.W.2d 248, 258 (Minn. 2014) (quotation omitted). The appellate court must "assume that the fact finder believed the state's witnesses and disbelieved any contrary evidence." Gulbertson v. State, 843 N.W.2d 240, 245 (Minn. 2014) (quotation omitted). We evaluate the sufficiency of circumstantial evidence using a two-step test. State v. Fox, 868 N.W.2d 206, 223 (Minn. 2015), cert. denied, 136 S.Ct. 509 (2015). We first identify the circumstances proved, "defer[ring] to the fact-finder's acceptance of the proof of these circumstances and the fact-finder's rejection of evidence in the record that conflicts with the circumstances proved by the State." Id. Then we "examine independently the reasonable inferences that might be drawn from the circumstances proved." Id. "To sustain a conviction based on circumstantial evidence, the reasonable inferences that can be drawn from the circumstances proved as a whole must be consistent with the hypothesis that the accused is guilty and inconsistent with any rational hypothesis except that of guilt." Id.
"It is axiomatic that it is the State's burden to prove every element of the charged offense." State v. Struzyk, 869 N.W.2d 280, 289 (Minn. 2015). "The elements of theft by swindle are: (i) the owner of the property gave up possession of the property due to the swindle; (ii) the defendant intended to obtain for himself or someone else possession of the property; and (iii) the defendant's act was a swindle." State v. Pratt, 813 N.W.2d 868, 873 (Minn. 2012); see also Minn. Stat. § 609.52, subd. 2(4) (providing that a person commits theft who "by swindling, whether by artifice, trick, device, or any other means, obtains property or services from another person").7 "The essence of a swindle is the defrauding of another of his property by deliberate artifice." State v. Olkon, 299 N.W.2d 89, 106 (Minn. 1980). "Theft by swindle requires an affirmative intent to defraud." State v. Pirsig, 670 N.W.2d 610, 615 (Minn.App. 2003), ...
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