State v. Marshall
| Decision Date | 19 December 1995 |
| Docket Number | No. C7-95-1229,C7-95-1229 |
| Citation | 541 N.W.2d 330 |
| Parties | STATE of Minnesota, Appellant, v. Julie Annette MARSHALL, Respondent. |
| Court | Minnesota Court of Appeals |
Syllabus by the Court
Absent a trust or explicit trust-like limitation, a businessperson who accepts money for services, uses some of the money for other than business purposes, and subsequently fails to perform the services, has not taken property of another for purposes of Minn.Stat. § 609.52, subd. 2(1).
Hubert H. Humphrey, III, Attorney General, St. Paul, Michael O. Freeman, Hennepin County Attorney, and Thomas A. Weist, Assistant County Attorney, Minneapolis, for Appellant.
William R. Kennedy, Hennepin County Public Defender, Peter W. Gorman, and Richard A. Trachy, Assistant Public Defenders, Minneapolis, for Respondent.
Considered and decided by PETERSON, P.J., and KALITOWSKI and SCHUMACHER, JJ.
The State of Minnesota appeals the dismissal of theft by temporary taking charges under Minn.Stat. § 609.52, subds. 2(1), 2(5) (1994) against respondent Julie Marshall.
Marshall owned and operated Minnesota Intrusion Alarm, Inc. (MIA), a business that typically sold alarm system monitoring services to elderly customers for approximately $800 paid in advance. The contracts were usually four- to six-year agreements requiring MIA to provide alarm system monitoring. MIA provided no alarm monitoring itself, but paid subcontractor IDC to perform the monitoring. Between June 1, 1993, and May 31, 1994, MIA collected almost $58,000 from customers. During that same period, MIA allegedly paid over $25,000 to Marshall, over $19,000 to a new business venture of Marshall's, over $11,000 toward the mortgage on Marshall's home, and an undetermined amount of small expenditures for Marshall's benefit.
On June 1, 1994, IDC terminated services for MIA customers due to MIA's account delinquency of over $5,000. Marshall and MIA had paid only $1,500 to IDC up to that time. MIA customers who had fully prepaid for monitoring services were left without service for the remainder of the contract periods. Records indicate MIA and Marshall owed various creditors over $90,000 and had no assets to fulfill those obligations.
On September 30, 1994, Marshall and MIA, who were considered to be one and the same, were charged with ten counts of theft by swindle of over $500. Minn.Stat. § 609.52, subds. 2(4), 3(3)(a) (1992). Subsequently, the state dismissed theft by swindle charges and charged Marshall with ten counts of theft by temporary taking of over $500. Minn.Stat. § 609.52, subds. 2(1), 2(5)(a), 3(3)(a) (1992).
The district court dismissed the ten counts of theft by temporary taking for lack of probable cause. In a memorandum attached to its order, the district court explained that the state could not prove four of the seven elements of a claim of theft by temporary taking of over $500. Specifically, the court reasoned that once customers paid money in advance to Marshall, the money became Marshall's property in exchange for her contractual obligation to provide services. The court concluded that Marshall's use of the money was not a taking of the property of another and therefore she could not be properly charged with theft under Minn.Stat. § 609.52, subd. 2(1).
When a businessperson accepts money for services, uses some of the money for other than business purposes, and subsequently fails to perform the services, has the businessperson taken property of another under Minn.Stat. § 609.52, subd. 2(1)?
The district court dismissed the state's charges for lack of probable cause based on a legal determination that the acts alleged could not support criminal charges of theft by temporary taking. A dismissal for lack of probable cause is appealable if it is based on a legal determination. State v. Ciurleo, 471 N.W.2d 119, 121 (Minn.App.1991). As with other legal determinations, it is reviewed de novo. See State v. Diedrich, 410 N.W.2d 20, 22-23 (Minn.App.1987). Penal statutes are strictly construed. State v. Soto, 378 N.W.2d 625, 627 (Minn.1985).
To prove a charge of theft by temporary taking, the state must establish, among other things, that a defendant
intentionally and without claim of right takes, uses, transfers, conceals or retains possession of movable property of another without the other's consent * * *.
Minn.Stat. § 609.52, subd. 2(1) (emphasis added).
In the 1963 revisions of the criminal code, the legislature did away with the former crime of embezzlement in favor of a general theft provision, thereby making it unnecessary to allege or prove a fiduciary relationship. In this case, however, the state must prove Marshall was a fiduciary of her customers in order to establish that money paid to her in advance remained "the property of another." The state must therefore establish a trust or trust-like limitation on Marshall's use of the money.
A debt is not a trust because it requires no fiduciary duties. Farmers State Bank of Fosston v. Sig Ellingson & Co., 218 Minn. 411, 418, 16 N.W.2d 319, 323 (1944). In order to create a trust, the parties must manifestly intend that property be kept or used for the benefit of the payor. Id. In the absence of such a restriction, a debt is created and the payor merely has a personal claim against the debtor. Id.
The state here does not allege that Marshall and her customers agreed or intended that the particular money advanced must be used to pay IDC. Thus, upon payment Marshall became a debtor of her customers, owing them performance of promised services. Marshall's customers retained no legal or other "subordinate interest" in the payment. See Minn.Stat. § 609.52, subd. 1(8) (1992). Without a trust or trust-like limitation imposed by the parties as to the specific use of advance payments, we conclude the money became Marshall's upon transfer and no longer the "property of another." Marshall cannot, therefore, be properly charged with stealing her own money.
The state argues that unless we conclude a business that receives money in advance of services must...
To continue reading
Request your trial
-
State v. Kalinowski
...its character as property belonging to the homeowner and vacating the defendant’s embezzlement conviction); State v. Marshall , 541 N.W.2d 330, 332-33 (Minn. Ct. App. 1995) (holding that a security company who accepted advance payments could not be guilty of taking "property of another" whe......
-
State v. Coleman
...he did not produce what is now claimed to have been the ‘proceeds' under the quoted embezzlement statute.”); State v. Marshall, 541 N.W.2d 330, 333 (Minn.Ct.App.1995) ( “Because money paid by customers became the property of respondent ... the district court properly dismissed theft ... cha......
-
State v. Larson
...a trust or trustlike relationship in order to satisfy this element. As support for his request, appellant relied on State v. Marshall, 541 N.W.2d 330, 332 (Minn.App.1995),rev. denied (Minn. Feb. 27, 1996), for requiring that a trust-like limitation must exist on appellant's use of these fun......
-
State v. Swenson
...807, 810 (Minn. App. 1999), review denied (Minn. May 18, 1999). The review of the legal determination is de novo. State v. Marshall, 541 N.W.2d 330, 332 (Minn. App. 1995), review denied (Minn. Feb. 27, 1996). A probable cause dismissal is a pretrial order that will be reversed on appeal onl......