State of Minnesota, Respondent, vs. Marc Joseph Bessette, Appellant.

State of Minnesota, Respondent, vs. Marc Joseph Bessette, Appellant. A04-877, Court of Appeals Unpublished, May 24, 2005.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-877

 

 

State of Minnesota,

Respondent,

 

vs.

 

Marc Joseph Bessette,

Appellant.

 

 

Filed May 24, 2005

Affirmed
Klaphake, Judge

 

Aitkin County District Court

File No. K8-02-324

 

Mike Hatch, Attorney General, Jennifer Beens Harper, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and

 

Thomas Murtha, Aitkin County Attorney, 217 Second Street N.W., Aitkin, MN  56431 (for respondent)

 

Samuel A. McCloud, Carson J. Heefner, McCloud & Boedigheimer, P.A., Suite 1000, Circle K, Box 216, Shakopee, MN  55379 (for appellant)

 

            Considered and decided by Kalitowski, Presiding Judge, Klaphake, Judge, and Poritsky, Judge.*

U N P U B L I S H E D   O P I N I O N

KLAPHAKE, Judge

            Appellant Marc Joseph Bessette argues that the evidence was insufficient to support his conviction for felony theft.  Because the jury was in the best position to assess the credibility of the witnesses and there is sufficient evidence to establish both the theft and valuation of the property to sustain a conviction for felony theft, we affirm.

D E C I S I O N

            In considering a claim of insufficient evidence, this court's review is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, is sufficient to allow the jurors to reach the verdict that they did.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  The reviewing court will not disturb the verdict if the jury, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude the defendant was guilty of the charged offense.  State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).

            The jury found appellant guilty of felony theft under Minn. Stat. § 609.52, subd. 2(1) (2002).  Conviction of theft of property valued at more than $500 but less than $2,500 is a felony level offense.  Minn. Stat. § 609.52, subd. 3(3)(a) (2002).

            Appellant argues that Thomas Elinich, the alleged owner of the stolen property, failed to provide any receipts indicating that he, in fact, owned the tools.  Elinich, however, testified to the distinct characteristics of several of his tools.  In particular, Elinich indicated that one welder had a piece of duct tape on it, that another welder was still attached to the shipping crate on the bottom and also had duct tape on it, and that several other tools had parts missing or were broken in various places.  Tools matching these descriptions were recovered from appellant and from Ed Ristow, who testified that he had received some tools from appellant as partial payment for excavating work he did for appellant in the fall of 2001.  In addition, a magnetic locator recovered from Ristow had Elinich's name, address, and phone number on the yellow case.  Finally, Elinich indicated in his initial list that his buck saw was missing the blade guide, as was the recovered buck saw, and he even provided the actual blade guide at trial.  Elinich's testimony was sufficient to identify the recovered property as belonging to him, even without any receipts.

            Moreover, Elinich provided a reasonable explanation as to why he did not have receipts for the tools when he explained that the time requirement for holding on to receipts for tax purposes had lapsed.  Although appellant claimed that he had purchased several of the tools from Thomas Knettel's hardware store, the receipts he produced were not original and only listed tools that appellant specifically asked Knettel to attest were purchased in 1996.  The item numbers and prices provided by Knettel were approximate guesses.  In fact, several of the model numbers do not match the model numbers on Elinich's list or on the recovered tools.

            Finally, other evidence supports the theft conviction.  Kim Mindrum testified that no one else had access to the Aitkin storage unit while she had the key.  Appellant told Elinich and Deputy John Drahota during the investigation that he transferred the tools from the storage unit to his pole barn.  Ristow indicated that he looked at the tools in appellant's pole barn and picked them up from the pole barn.  Even Ristow's son corroborated the exchange of tools for excavation.  Elinich positively identified the tools based on the inventory list and photos from Drahota, and in fact, he indicated that four of the confiscated items were not his; he also positively identified the tools in person.  We therefore conclude that the evidence was sufficient to support the conviction for theft.  See State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989) (stating this court must assume the jury believed the state's witnesses and disbelieved any evidence to the contrary).

            Appellant also argues that there was insufficient proof of value of the tools.  We disagree.  Ristow valued the items he received from appellant at $565.  There were additional tools recovered from appellant's property, which increase the overall value of the missing tools.  Elinich testified that when he put together the list of missing items that he sent to Drahota, he obtained prices for replacement tools from Mills Fleet Farm, which totaled over $8,000.  Even if the jury accepted the values placed on the four tools that appellant asked Knettel to create receipts for, they still have a value of $1,372, which is over the $500 necessary to support a conviction for felony theft. 

            We affirm appellant's conviction for felony theft.

            Affirmed.

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