State of Minnesota, Appellant, vs. Tracy Robin Cubbage, Respondent.

State of Minnesota, Appellant, vs. Tracy Robin Cubbage, Respondent. A04-1411, Court of Appeals Unpublished, March 1, 2005.

This opinion will be unpublished and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

A04-1411

 

State of Minnesota,

Appellant,

 

vs.

 

Tracy Robin Cubbage,

Respondent.

 

Filed March 1, 2005

Reversed

Halbrooks, Judge

 

Brown County District Court

File No. K7-04-168

 

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101; and

 

James R. Olson, Brown County Attorney, John L.R. Yost, Assistant County Attorney, P.O. Box 428, New Ulm, MN 56073 (for appellant)

 

Mark D. Nyvold, 332 Minnesota Street, Suite W1610, St. Paul, MN 55101 (for respondent)

 

            Considered and decided by Halbrooks, Presiding Judge, Randall, Judge, and Shumaker, Judge.

U N P U B L I S H E D   O P I N I O N

HALBROOKS, Judge

            Appellant State of Minnesota challenges the district court's pretrial dismissal for lack of probable cause of a criminal complaint charging felony theft.  The state argues that the district court's dismissal is appealable as a matter of right and that a joint checking account does not preclude charges of criminal theft when evidence is presented that one account holder did not have a claim of right to withdraw those funds.  Because we conclude that a co-owner of a joint checking account may be prosecuted for criminal theft if she, "without claim of right," deposits funds belonging to another and then withdraws those funds, we reverse the district court's pretrial dismissal for lack of probable cause. 

FACTS

            Larry Zachow and respondent Tracy Robin Cubbage began dating in December 2003.  One month later, they began living together.  As a truck driver, Zachow was frequently away from home, usually for 7-10 days at a time.  Because of his schedule, Zachow needed assistance in paying his many bills, and he established three joint checking accounts with respondentone for fuel expenses; another for other trucking expenses; and a third for household expenses.  Cubbage was given full authority to access and sign checks on the accounts.  But Zachow testified that she was only authorized to pay certain bills and buy groceries and other items "for everyday living."  After establishing the joint accounts, Zachow gave Cubbage an itemized list of the bills that were to be paid, along with the dates of when they were to be paid.  As the district court explained, however, "[f]rom the checks themselves and Mr. Zachow's testimony, it is evident that he did not, in fact, restrict [d]efendant's use of the accounts to any such written list."[1] 

            This arrangement seemed to work until Zachow ended their romantic relationship over the phone on February 7 or 8, 2004.  At that time, Zachow informed Cubbage that she would have to move out of his home, but did not specify a timeline.  He testified that he did not authorize Cubbage to make any further withdrawals on their joint checking accounts, but that he did not do anything to prohibit her from continuing to access the accounts.  When Zachow returned home a few days later, his home was "a disaster."  He testified that the household and trucking-account checkbooks were missing and that one check from the fuel checkbook was missing.  In addition, Zachow could not find his paycheck, although his employer told him that it had already been mailed.  When Zachow went to the bank the following Monday, he discovered that checks had been drawn on some of the accounts that he held with Cubbage, including a check for cash in the amount of $1,300 and a check to a car dealer in the amount of $1,566.  Zachow further learned that Cubbage had attempted to cash his $4,313.90 paycheck.  But when she was unable to do so, Cubbage deposited the check in one of the checking accounts.  She then made several withdrawals totaling more than $5,000.

            The state charged Cubbage with one count of felony theft under Minn. Stat. § 609.52, subd. 2(1) (2002).  Cubbage filed a motion to dismiss, asserting that probable cause did not exist for the charge.  After an omnibus hearing, the district court granted Cubbage's motion to dismiss, concluding that the state could not produce evidence that Cubbage did not have a claim of right to the funds in the joint checking accounts and that her withdrawal of the funds did not amount to criminal theft.  This appeal follows.  

D E C I S I O N

            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).  A legal determination is reviewed de novo.  See State v. Linville, 598 N.W.2d 1, 2 (Minn. App. 1999) (reviewing statutory interpretation underlying dismissal for lack of probable cause).  We will reverse pretrial orders under Minn. R. Crim. P. 28.04 only when the state clearly and unequivocally demonstrates that (1) the district court erred in its judgment and (2) the error will have a critical impact on the outcome of the trial unless it is reversed.  State v. Trei, 624 N.W.2d 595, 597 (Minn. App. 2001), review dismissed (Minn. June 22, 2001).  The dismissal of a complaint satisfies the critical-impact requirement.  Id. 

Probable cause exists when "evidence worthy of consideration . . . brings the charge . . . within reasonable probability."  State v. Steinbuch, 514 N.W.2d 793, 798 (Minn. 1994) (quotation omitted).  Stated differently, probable cause exists when "the facts would lead a person of ordinary care and prudence to hold an honest and strong suspicion that the person under consideration is guilty of a crime."  State v. Ortiz, 626 N.W.2d 445, 449 (Minn. App. 2001), review denied (Minn. June 27, 2001).  "In addressing a probable cause challenge, the court must determine whether, given the facts disclosed by the record, it is fair and reasonable to require the defendant to stand trial."  Id.

Minnesota's theft statute does not explicitly contemplate the crime of theft from a joint bank account.  But under the broad-based statute, whoever "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[,]" commits theft.  Minn. Stat. § 609.52, subd. 2(1) (2002) (emphasis added).  "‘Property of another' includes property in which the actor is co[-]owner or has a lien, pledge, bailment, or lease or other subordinate interest . . . and property of a partnership of which the actor is a member, unless the actor and the victim are husband and wife."  Minn. Stat. § 609.52, subd. 1(8) (2002) (emphasis added).

            The state argues that Cubbage can be charged with criminal theft based on her withdrawals from the joint checking account, which, according to Zachow, were unauthorized.  The state argues that the mere co-ownership of a joint checking account does not necessarily establish a claim of right to funds deposited by another.  The state also suggests that a factual determination as to which withdrawals were actually authorized by Zachow should be reserved for a jury.[2]  We determine that Cubbage's attempt to cash Zachow's paycheck and her subsequent unauthorized deposit and withdrawal of funds from that paycheck preclude dismissal of the theft charges and present probable cause for the case to move forward.  

If an actor has a claim of right to the property in question, then an affirmative defense to the charge is available, and she cannot be guilty of theft.  As the advisory committee to the statute has explained, "[c]laim of title in good faith would nullify the requirement of § 609.52, [s]ubd. 2, (1), that the defendant act ‘intentionally and without claim of right . . . and with intent to deprive the owner permanently of possession of such property.'"  Minn. Stat. Ann. § 609.52 advisory comm. cmt. (West 2003).  The essential question for this court to resolve thus becomes whether the district court erred in determining that Cubbage had a claim of right to the funds in the joint checking account.  We conclude that it did so err. 

The Minnesota Supreme Court has previously addressed a claim-of-right defense in the context of the state trespass statute, Minn. Stat. § 609.605(5) (1982), in State v. Brechon, 352 N.W.2d 745 (Minn. 1984).[3]  In explaining the defense, the court noted, "[i]f the defendant has a claim of right, [s]he lacks the criminal intent which is the gravamen of the offense."  Brechon, 352 N.W.2d at 749.  But in order to establish the defense, the allegedly criminal act must be "committed in good faith by one who actually and sincerely believes that [s]he is authorized . . . to do the act in question."  Id. (quotation omitted).  In discussing the burden of proof necessary to establish a claim-of-right defense, the supreme court held that "without claim of right" is an element of the offense that the state must prove beyond a reasonable doubt.  Id. at 750.  In a criminal-trespass case at least, "the state must present evidence from which it is reasonable to infer that the defendant has no legal claim of right to be on the premises where the trespass is alleged to have occurred."  Id.  Accordingly then, in a theft case, the state must also present evidence from which it is reasonable to infer that Cubbage had no legal claim of right to take the property in question.  In Brechon, the court concluded that "[i]f the state fails to offer evidence which by reasonable inference negates the defendant's claim of right, the issue of intent to trespass is never reached, since the criminal complaint must be dismissed."  Id.  Accordingly,

[i]f the state presents evidence that defendant has no claim of right, the burden then shifts to the defendant who may offer evidence of [her] reasonable belief that [she] has a property right, such as that of an owner, tenant, lessee, licensee, or invitee.  Subjective reasons not related to a claimed property right or permission are irrelevant and immaterial to the issue of claim of right.

 

Id. (citation omitted).  The court continued and explained that the juryand not the courtdecides the sufficiency of the evidence presented to establish a claim of right.  Therefore, "[t]he [district] court may not require a pretrial offer of proof in order to decide as a matter of law that defendants have no claim of right."  Id.   

"Without claim of right" is an element of the theft statute that the state must eventually prove beyond a reasonable doubt.  The state here presented some evidence to the district courtin the form of Zachow's sworn testimony and proof of the cashed checksfrom which it would be reasonable to infer that Cubbage had no legal claim of right to take the property in question, thereby precluding dismissal on probable cause grounds.  The burden would have then shifted to Cubbage to show that she did in fact have a claim of right to deposit Zachow's paycheck and then draw funds on it.  Whether or not she did have such a claim is a question for a jury to decide.  As the theft statute contemplates and as the district court itself recognized, "it is legally possible for a person to steal from a joint account."  Whether or not the theft arises "in a business situation where a strict accounting for funds is expected" seems irrelevant and not contemplated by the statute.  Accordingly, we conclude that the court erred in dismissing the charges for lack of probable cause and reverse because the facts here "lead a person of ordinary care and prudence to hold an honest and strong suspicion that the person under consideration is guilty of a crime."  Ortiz, 626 N.W.2d at 449.

            While Minnesota appellate courts have not addressed the issue of whether a defendant can face criminal prosecution for making unauthorized withdrawals from a joint checking account when that defendant is not the depositor of the funds in question, a number of other courts have reached the issue.  See, e.g., Hinkle v. State, 355 So. 2d 465, 467 (Fla. Dist. Ct. App. 1978) (noting that "a co-owner of a joint bank account cannot be guilty of larceny of funds held in the joint account"); State v. Kane, 992 P.2d 1283, 1286 (Mont. 1999) (holding that the district court did not err in finding that a co-owner of a joint checking account could not be prosecuted for theft of funds from the joint account when no fraud had been alleged in establishment of the account); State v. Haack, 713 P.2d 1001, 1003 (Mont. 1986) (explaining that the special relationship between joint tenants in a bank account precludes application of the theft laws); see also Gainer v. State, 553 So. 2d 673, 681 (Ala. Crim. App. 1989) (affirming a theft conviction where the defendant "wrongfully obtained her status as a joint [account] owner").  But because their theft statutes do not explicitly include a "without claim of right" element or define "property of another" to include "property in which the actor is co[-]owner," they are of limited persuasive value.[4]  Moreover, the plain meaning of Minnesota's theft statute must guide our analysis.  Minn. Stat. § 645.16 (2002) (requiring courts to accept the plain meaning of a statute "[w]hen the words . . . in their application to an existing situation are clear and free from all ambiguity"). 

            The Minnesota theft statute makes clear that a defendant can be guilty of theft even if she is a co-owner of the property in question.  Minn. Stat. § 609.52, subd. 1(8).  To defend against this charge, the defendant may present a defense if she possesses a "claim of right" to the property in question.  Minn. Stat. § 609.52, subd. 2(1).  A claim-of-right defense must be made "in good faith by one who actually and sincerely believes that [s]he is authorized" to take the property in question.  Brechon, 352 N.W.2d at 749 (quotation omitted).  It is therefore the province of the jury to decide the sufficiency of the evidence presented to establish a claim of right.  Id. at 750.  Because of this, "[t]he [district] court may not require a pretrial offer of proof in order to decide as a matter of law that defendants have no claim of right."  Id.  While the Brechon decision analyzed a claim-of-right defense under the trespass statute, its application to the theft statute is appropriate here.

Moreover, and under the specific facts of this case, the state has presented evidence "from which it is reasonable to infer that [Cubbage] has no legal claim of right" to the property in questionnamely, her attempt to cash Zachow's paycheck and her subsequent deposit and withdrawal of funds from that paycheck.  Brechon, 352 N.W.2d at 750.  Cubbage may or may not choose to present evidence to rebut that evidence, but the district court erred by making a legal determination that Cubbage had a claim of right to the bank funds and by dismissing the charges for lack of probable cause.  The question should be presented to a jury to decide "the sufficiency of the evidence presented to establish a claim of right."  Id.

            Reversed.

[1]  Zachow vaguely explained that Cubbage needed permission to make certain purchases, testifying, "Well, I mean, if she was going to spend $200 or something, I'd certainly want to approve it because I have a lot of bills to pay."

[2]In support of its argument that the co-ownership of a joint checking account does not establish a claim of right to the funds in that account, the state cites a number of civil cases concerning the ownership interests that an actor has in funds deposited into a joint checking account.  See, e.g., Smith v. State, 389 N.W.2d 543, 545 (Minn. App. 1986) (relying on the probate code and the Minnesota Multi-Party Accounts Actin a civil medical-assistance benefits disputeand explaining that the funds in a joint checking account belong to the depositor unless there is "clear and convincing evidence of a different intent").  But because this case arises in the context of a criminal prosecution, cases concerning the civil consequences of the unauthorized removal of funds from a joint bank account are inapplicable.  Moreover, we emphasize that our decision today is limited to interpretation of the criminal-theft statute and is not intended to have an impact on state banking law relating to joint accounts. 

[3] The trespass statute at the time read, in pertinent part, "[w]hoever intentionally does any of the following is guilty of a misdemeanor: . . . (5) Trespasses upon the premises of another and, without claim of right, refuses to depart therefrom on demand of the lawful possessor thereof . . . ."  Brechon, 352 N.W.2d at 748 (quoting Minn. Stat. § 609.605(5) (1982) (emphasis omitted)).  The current version of the statute is substantively similar.  See Minn. Stat. § 609.605, subd. 1(b)(3) (2002). 

            Commentators note that the claim-of-right defense arises primarily in trespass cases, "but may arise in other situations as well," especially if the defense is codified in the very statute creating the crime.  See 9 Henry W. McCarr & Jack S. Nordby, Minnesota Practice § 47.29 (2001). 

[4] Unlike Florida's and Montana's theft statutes, Alabama's does specifically provide for a claim-of-right defense when "the actor honestly believed that he had a claim to the property or services involved which he was entitled to assert in the manner which forms the basis for the charge against him."  Ala. Code § 13A-8-12, subd. (a) (2004).  But the Alabama court did not address this provision in Gainer,and other cases analyzing the provision have only done so in limited circumstances relating to jury instructions.  See, e.g., Ex Parte Wood, 564 So. 2d 860 (Ala. 1990) (defendant who made insurance claim was entitled to "honest belief" jury charge); Kent v. State, 661 So. 2d 797 (Ala. Crim. App. 1995) (district court committed reversible error by refusing to give "factual mistake" and "honest belief" charges to jury in trial for theft of property).