State v. Kiminski

• Decision Date: 20 August 1991
• Docket Number: No. C1-91-715,C1-91-715
• Citation: 474 N.W.2d 385
• Parties: STATE of Minnesota, Appellant, v. Daniel Thomas KIMINSKI, Respondent.
• Court: Minnesota Court of Appeals

Page 385

474 N.W.2d 385

STATE of Minnesota, Appellant, v. Daniel Thomas KIMINSKI, Respondent.

No. C1-91-715.

Court of Appeals of Minnesota.

Aug. 20, 1991.

Review Denied Oct. 11, 1991.

Syllabus by the Court

1. The State of Minnesota was not barred from appealing the dismissal of criminal charges of state lottery fraud brought against respondent. The trial court dismissed the charges based on a question of law, and pretrial dismissals based solely on legal issues may be appealed by the state.

2. Minn.Stat. § 609.651, subd. 1(4) (1990), which makes it a crime to claim a lottery prize by means of fraud, deceit, or misrepresentation, is applicable to the knowing redemption of stolen lottery tickets.

Hubert H. Humphrey, III, Atty. Gen., Kevin P. Staunton, Spec. Asst. Atty. Gen., St. Paul, Marvin Ketola, Carlton County Atty., Leslie E. Beiers, Asst. County Atty., Carlton, appellant.

John M. Stuart, State Public Defender, Lawrence Hammerling, Asst. Public Defender, Cathryn Middlebrook, Asst. Public Defender, Minneapolis, respondent.

Considered and decided by RANDALL, P.J., and HUSPENI and THOREEN ^*, JJ.

RANDALL, Judge.

The State of Minnesota appeals from the trial court's pretrial dismissal of two counts of state lottery fraud brought against respondent Daniel T. Kiminski. Respondent allegedly stole "instant win" lottery tickets and redeemed the winning tickets for approximately $69. Appellant contends the trial court erred when it construed Minn.Stat. § 609.651, subd. 1(4) (1990) as being inapplicable to the knowing redemption of stolen lottery tickets. We reverse and remand for further proceedings.

FACTS

Respondent was charged on December 28, 1990, with two counts of state lottery fraud in violation of Minn.Stat. § 609.651, subd. 1(4) (1990). The omnibus hearing was held on January 23, 1991. The pertinent facts were not in dispute. The trial court was asked to conclude from the facts whether lottery fraud or the general theft statute best fit respondent's conduct.

Respondent argued that both counts of the complaint should be dismissed because the counts of the complaint failed to state violations of Minn.Stat. § 609.651, subd. 1(4). Respondent argued the conduct as alleged should constitute an offense under the general theft statute, Minn.Stat. § 609.52 (1990).

The trial court agreed with respondent and issued an omnibus order dismissing both counts of state lottery fraud. The trial court's order used the phrase "lacking probable cause." It found the legislature did not intend to make the conduct of respondent a crime under Minn.Stat. § 609.651, subd. 1(4). The State of Minnesota appeals pursuant to Minn.R.Crim.P. 28.04, subd. 1(1).

The charges against respondent stem from the early morning hours of December 20, 1990, when 33 Minnesota state lottery instant win tickets were stolen from the Junction Oasis Truck Stop in Carlton County.

                The tickets were taken from the gas station adjacent to the truck stop's restaurant.   Kenneth Newsum and Damon Swenson were the employees working the shift from 11:00 p.m. December 19, 1990 to 7:00 a.m. December 20, 1990.   One or both employees were at the counter in the gasoline station at all times during the shift except for one brief period around 4:00 a.m
                

Just before 4:00 a.m., respondent and Dan Haganah came into the gas station from the restaurant. They purchased a few instant win lottery tickets and returned to the restaurant. Both employees joined them in the restaurant: Swenson sat in a booth with the two men, and Newsum stood in the doorway between the restaurant and gas station. Swenson then went to the rear of the station to retrieve cleaning supplies. When he came back into the gas station, respondent and Dan Haganah were standing at the unattended counter near the lottery tickets. As Swenson entered, Newsum returned to the gas station from the restaurant. Swenson sold the two men a few more lottery tickets, and then respondent and Haganah left. As Newsum and Swenson were counting the lottery tickets prior to checking out of their shift, they realized more tickets were gone than had been sold. A supervisor reported the missing tickets to the Carlton County sheriff's department.

In the investigation, Haganah was interviewed by a deputy sheriff. Haganah told the officer that respondent reached behind the counter while the employees were gone and took a handful of lottery tickets. Respondent was staying with Haganah, and they returned to Haganah's home where they opened the tickets to look for winners. Respondent kept all the tickets with winning payoff symbols.

Respondent admitted stealing the tickets and presenting the winning tickets for payment. Respondent produced 22 of the tickets. When asked where the remaining 11 tickets were, respondent said he cashed them in for approximately $25.

After further investigation, it was clear respondent received more than $25 from winning tickets. Respondent agreed to come to the Law Enforcement Center to speak further with the officer. At this second interview, respondent admitted he cashed in the stolen winning tickets for $69. He admitted to receiving $56 from the "Little Store" in Carlton and $11 from the "Little Store" in Cloquet. He could not remember where he had cashed the last $2 winner.

The investigating officer recovered 32 of the 33 stolen lottery tickets. The stolen tickets had been redeemed, were signed on the back by respondent, and witnesses recognized respondent as the person who had redeemed the tickets.

The complaint against respondent alleged two violations of Minn.Stat. § 609.651, subd. 1(4). The relevant statutory provision provides:

A person is guilty of a felony and may be sentenced under subdivision 4 if the person does any of the following with intent to defraud the state lottery:

(1) alters or counterfeits a state lottery ticket;

(2) knowingly presents an altered or counterfeited state lottery for payment;

(3) knowingly transfers an altered or counterfeited state lottery ticket to another person; or

(4) otherwise claims a lottery prize by means of fraud, deceit, or misrepresentation.

Id. (emphasis added).

The two counts of the complaint provided:

COUNT 1: [Respondent] Did wrongfully, unlawfully, intentionally and feloniously, on or about the 21st day of December, 1990, in the City of Carlton, claim a lottery prize by means of fraud, deceit and misrepresentation.

COUNT 2: [Respondent] Did wrongfully, unlawfully, intentionally and feloniously, on or about the 21st day of December, 1990, in the City of Cloquet, claim a lottery prize by means of fraud, deceit and misrepresentation.

The trial court, following the omnibus hearing, dismissed the two counts as lacking [Respondent] admitted to Sergeant Marvin Durkee that he took some scratch-off-type lottery tickets from a convenience store. The state charged him with committing felonies under MSA 609.651, subd. 1(4), which makes presenting false information regarding a lottery ticket a felony. The state argues that the charge is appropriate because the legislature was silent as to the theft of a small lottery prize and that the felony provisions dealing with state lottery fraud apply. Defendant argues that the legislature's intent was to have the felony provisions deal with penalties for defrauding the lottery system and that the general theft statute should apply for the mere theft of tickets.

                probable cause to show a violation of Minn.Stat. § 609.651, subd. 1(4).   The trial court's memorandum states
                

In interpreting statutes, the Court must determine the legislature's intent. Mankato Citizens Telephone Company vs. Commissioner of Taxation, 146 N.W.2d 313. The Court has reviewed the tapes of the Senate Judiciary Committee's discussions of the statute in question, which discussions were held prior to the passage of the statute. They indicate that the members of the committee were concerned with efforts to defraud the lottery system rather than with the theft of lottery tickets. Senate Counsel made it clear that the penalties for lottery fraud were modeled after those imposed for aggravated forgery.

In determining the legislature's intent, the Court should presume that the legislature did not intend an absurd or unreasonable result. Ramsey County vs. Lake Henry Township, 47 N.W.2d 554. Clearly, the sanctions for petty theft should not be as severe as those for aggravated forgery. Had the defendant stolen the proceeds (approximately $62) from an individual who had purchased the tickets and claimed the prize, he would be guilty of theft. The legislature could not have possibly intended to declare such an act a felony under the lottery fraud statute. Therefore, the defendant should be charged, if at all, with a violation of MSA 609.52 rather than a violation of MSA 609.651.

ISSUES

1. May the State of Minnesota appeal this pretrial dismissal of criminal charges since the trial court found a lack of probable cause?

2. Is Minn.Stat. § 609.651, subd. 1(4) applicable to the redemption of stolen lottery tickets?

ANALYSIS

I. Appealability

Respondent first maintains the State of Minnesota is prohibited from bringing this appeal by Minn.R.Crim.P. 28.04, subd. 1(1).

The rule provides:

The prosecuting attorney may appeal as of right to the Court of Appeals:

(1) In any case, from any pretrial order of the trial court except an order dismissing a complaint for lack of probable cause to believe the defendant has committed an offense or an order dismissing a complaint pursuant to Minn.Stat. § 631.21.

Minn.R.Crim.P. 28.04, subd. 1(1) (emphasis added). The respondent argues that, since the trial court's order says it was dismissing the charges for lack of probable cause, this case is not appealable, not properly before this court, and should be dismissed.

The trial court did phrase its order in terms of a dismissal based on a lack of probable cause, but the rationale underlying dismissal is the trial court's legal interpretation of legislative...