State of Minnesota, Respondent, vs. Long Dihn Tran, Appellant.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

  STATE OF MINNESOTA IN COURT OF APPEALS C6-02-1856

 

State of Minnesota,
Respondent,
 
vs.
 
Long Dihn Tran,
Appellant.

 

Filed September 23, 2003

Affirmed as modified

Peterson, Judge

 

Hennepin County District Court

File No. 01045096

 

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

 

Amy Klobuchar, Hennepin County Attorney, Donna J. Wolfson, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN  55487 (for respondent)

 

John M. Stuart, State Public Defender, Michael F. Cromett, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for appellant)

 

            Considered and decided by Wright, Presiding Judge, Lansing, Judge, and Peterson, Judge.

U N P U B L I S H E D   O P I N I O N

PETERSON, Judge

In this appeal from a conviction of and sentence for attempted theft by swindle, appellant Long Dihn Tran argues that (1) evidence that his jewelry store was burglarized two months after he increased insurance coverage and circumstantial evidence indicating to investigators that the burglary had been staged was insufficient to support the conviction when police found a fingerprint on the safe that they were unable to identify; (2) the district court erred by assigning him a criminal-history point for an insurance-fraud conviction because no sentence was imposed for that offense; and (3) the district court erred in relying on the major-economic-offense aggravating factor to support an upward durational sentencing departure.  We affirm as modified.

FACTS

            Appellant's conviction arose out of a burglary of a jewelry store that he and his wife owned and operated.  Appellant opened the jewelry store in October 1999.  His 1999 tax return claimed a $21,738 business loss on sales of $7,000, and his 2000 tax return claimed an $11,666 loss on sales of $17,947.  Bank statements for December 2000 through March 2001 showed that appellant's business accounts had several checks returned for insufficient funds, including a $6,000 check to a jewelry supplier.  The 2000 tax return showed that the jewelry store had an inventory worth $85,947.  Appellant testified that early in 2001, he increased his inventory by $140,000.

            To cover the alleged additional inventory, appellant increased his insurance coverage from $100,000 to $240,000 in two transactions.  In February 2001, Appellant increased his coverage by $65,000 for a premium cost of $750 and in March 2001, he increased his coverage by an additional $75,000 for a premium cost of $866.  Appellant's insurance agent testified that when an insured requests a coverage increase for additional inventory, she asks the insured to describe the new inventory but does not otherwise verify that additional inventory was purchased.

            On April 18, 2001, the security system at appellant's store, which included alarms on the safe and the interior and exterior doors and two motion detectors, was activated at 6:49 p.m.  At 1:30 a.m. on April 19, 2001, three alarms were triggered in the store:  the front-window glass-break detector; the back exterior door; and the interior door into the store's front room.  About one minute after the first alarm was triggered and just three seconds after the interior-door alarm was triggered, the alarm system was disarmed with a key fob, a wireless remote-control device that could be used to disarm the system by pressing a single button.  There are four buttons on the key fob; two are used to arm the alarm system, one is used to disarm the system, and one is not programmed.  Appellant testified that he was the only person who used the key fob and that he left it hanging on a wall near the control panel in the store because he often forgot it at home.

            Appellant testified:  When he opened the store on April 19, 2001, at about 9:15 a.m., he noticed that all of the store's interior doors were open.  The back door was closed but unlocked.  A hole had been cut in the wall between his store and a common corridor.  The safe was open, its handle and combination number were on the floor, and its entire contents, including jewelry, cash, and receipts, were gone.  Appellant reported the alleged burglary to police.

            Police Forensic Scientist Mike Calistro testified that he believed that no one had entered the store through the hole in the wall.  On the inside of the store, the hole measured 13 1/2 inches at the top, 15 inches along the right side, 13 1/2 inches at the bottom with the left side still attached, like a small door.  On the corridor side, the hole measured 14 inches at the top, 17 inches on each side, and 12 inches along the bottom.  The hole was 14 inches above the floor, an awkward height for a person to crawl through.  Calistro pointed out that the hole had irregular sawed fibers along the edges that would have been bent and otherwise disturbed if someone had attempted to crawl through the hole.  At trial, using a mock-up of the hole, Calistro showed how it would have been very difficult for anyone other than a very small child to enter the store through the hole. 

            Police noted other circumstances that raised their suspicions about the burglary: a smaller safe and jewelry in display cases were left untouched; the store was equipped with video-surveillance cameras that had not been turned on; and Tran claimed that all of his inventory records were stolen from the safe, along with the jewelry.

            Appellant filed a claim with his insurer estimating the loss to range from $150,000 to $200,000.  He did not provide documentation substantiating his claim.  Appellant testified that he contacted some of the businesses from which he had purchased the store's inventory, but they were uncooperative in providing him with duplicate receipts.

            Appellant was charged by complaint with one count of insurance fraud in violation of Minn. Stat. § 609.611, subds. 1(a)(2), 3 (2000).  The complaint was amended to include a charge of attempted theft by swindle in violation of Minn. Stat. § 609.52, subds. 2(4), 3(1) (2000).  A jury found appellant guilty as charged.  The district court sentenced him on the attempted-theft-by-swindle charge to a stayed term of 25 months in prison, an upward durational departure from the presumptive term. 

D E C I S I O N

1.         Appellant argues that the evidence was insufficient to show that he committed the alleged burglary of his jewelry store.  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 reached.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  This court must assume that the jury believed the state's witnesses and disbelieved any contrary evidence.  State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).  This 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 that the defendant was guilty of the charged offense.  State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).

Circumstantial evidence is entitled to as much weight as direct evidence.  State v. Bauer, 598 N.W.2d 352, 370 (Minn. 1999).  For a defendant to be convicted based on circumstantial evidence alone, however, the circumstances proved must be "consistent with the hypothesis that the [defendant] is guilty and inconsistent with any rational hypothesis [other than] guilt."  State v. Bias, 419 N.W.2d 480, 484 (Minn. 1988).  Even with this strict standard, the fact-finder is in the best position to weigh the credibility of evidence and thus determines which witnesses to believe and how much weight to give to their testimony.  Id.  "Inconsistencies in the state's case or possibilities of innocence do not require reversal of a jury verdict so long as the evidence taken as a whole makes such theories seem unreasonable."  State v. Ostrem, 535 N.W.2d 916, 923 (Minn. 1995).

            The fact that the alarm system was deactivated within about one minute after the first alarm was triggered and just three seconds after the interior-door alarm was triggered indicates that the person who committed the alleged burglary must have known that the key fob had been left at the store, where it was located, and what button to press to deactivate the alarm.  Based on the evidence in the record, appellant was the only person who knew those facts.  There is additional evidence indicating that the burglary was staged, including evidence that a hole cut in the wall between the jewelry store and a common corridor, suggesting a method of entry, was only large enough for a small child to crawl through; video-surveillance cameras had not been activated; appellant's business had been unable to meet its financial obligations during the months preceding the alleged burglary; during the two months before the alleged burglary, appellant increased his insurance coverage by $140,000; the alleged burglar removed business records but left a smaller safe and jewelry in display cases untouched; and the absence of documentary evidence substantiating the claimed increase in inventory.

Appellant argues that because the glass-break alarm was triggered, and no glass was broken, the alarm system at his store appeared to malfunction and all information and implications are subject to question.  David Benson, a service manager for ADT Security, testified that if the glass-break alarm was installed properly, it would be necessary to break glass to trigger the alarm.  However, Benson also testified that if a base wave of sound and a high-frequency sound occurred at the same time, the noises could activate the glass-break alarm, although he had never seen this happen without someone intentionally testing the system in that manner.  More significantly, Benson did not testify that a problem with the glass-break alarm indicated that the complete security system was not operating properly.  Taking Benson's testimony as a whole, the apparent problem with the glass-break alarm does not make all information and implications drawn from the security system subject to question.

Appellant also argues that an identifiable fingerprint on the inside of the safe's faceplate shows that a third-party committed the burglary.  Police were unable to determine the identity of the person who left the print.  But the forensic scientist who testified indicated that there was no way to tell when a fingerprint was placed somewhere.  Therefore, the print could have been left by someone who had access to the safe before the alleged burglary occurred.

Taking the evidence as a whole, appellant's theory of the case is unreasonable.  The evidence was sufficient to prove that appellant staged the burglary of his jewelry business.

2.         A district court is afforded broad discretion in its sentencing decisions and a reviewing court cannot simply substitute its judgment for that of the district court.  State v. Spain, 590 N.W.2d 85, 88 (Minn. 1999).  To warrant a departure from the sentencing guidelines, substantial and compelling circumstances must be cited by the district court and must be present in the record.  Id. The district court must determine "whether the defendant's conduct was significantly more or less serious than that typically involved in the commission of the crime in question."  Id. at 88-89 (quotation omitted).

Appellant argues that the district court erred in finding that the attempted theft by swindle constituted a major economic offense.  Minn. Sent. Guidelines II.D.2(b)(4) defines a major economic offense as

an illegal act or series of illegal acts committed by other than physical means and by concealment or guile to obtain money or property, to avoid payment or loss of money or property, or to obtain business or professional advantage.  The presence of two or more of the circumstances listed below are aggravating factors with respect to the offense:  . . .

(b) the offense involved an attempted or actual monetary loss substantially greater than the usual offense or substantially greater than the minimum loss specified in the statutes;

(c) the offense involved a high degree of sophistication or planning or occurred over a lengthy period of time[.]

 

Appellant argues that Minn. Sent. Guidelines II.D.2(b)(4)(b) should not apply because he did not receive any insurance proceeds.  But Minn. Sent. Guidelines II.D.2(b)(4)(b) specifically applies to an attempted monetary loss, and appellant filed a claim for $150,000 to $250,000, more than four times greater than the minimum loss of $35,000 specified in Minn. Stat. § 609.52, subd. 3(1) (2000).

Appellant also argues that his offense did not involve a high degree of sophistication or planning.  But Minn. Sent. Guidelines II.D.2(b)(4)(c) applies if "the offense involved a high degree of sophistication or planning or occurred over a lengthy period of time."  (Emphasis added.)  The attempted theft by swindle occurred over more than three months.  Appellant increased his insurance coverage on February 5, 2001 and again on March 5, 2001 and staged the burglary on April 19, 2001.  On June 14, 2001, he gave a statement to an insurance adjuster.

The district court did not err in finding that appellant committed a major economic offense.  See State v. O'Brien, 429 N.W.2d 293, 296 (Minn. App. 1988) (affirming an upward durational departure based on major-economic-offense aggravating factor when theft by swindle involved a total of $136,000 and multiple victims and occurred during a three-month time period), review denied (Minn. Nov. 16, 1988).

Appellant argues that if the record supports an upward departure, his sentence should be modified to 24 months.  The state concedes that the district court erred in assigning appellant a criminal-history point for the insurance-fraud conviction. See Minn. Sent. Guidelines II.B.1 (stating criminal-history points are assigned "for every felony conviction for which a felony sentence was stayed or imposed before the current sentencing").  The presumptive sentence duration for attempted theft by swindle of more than $35,000, a severity-level-VI offense, committed by a person with a zero criminal-history score is one year and one day.  We, therefore, modify the duration of appellant's sentence to 24 months, a double durational departure from the correct presumptive sentence.  Minn. Sent. Guidelines §§ II.G., IV, V.  See State v. Glaraton, 425 N.W.2d 831, 834 (Minn. 1988) (stating "generally, when aggravating circumstances are present, the upper limit on a durational departure is double the . . . maximum presumptive guidelines sentence duration").

Affirmed as modified.