This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA IN COURT OF APPEALS A14-2121
State of Minnesota, Respondent,
vs.
SerShawn Copone Nicholson, Appellant.
Filed November 23, 2015 Affirmed Chutich, Judge
Hennepin County District Court File No. 27-CR-13-10181
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Michael O. Freeman, Hennepin County Attorney, Michael Richardson, Assistant County Attorney, Minneapolis, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Roy G. Spurbeck, Assistant State Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Ross, Presiding Judge; Chutich, Judge; and Hooten,
Judge.
UNPUBLISHED OPINION
CHUTICH, Judge
Appealing from his conviction of felony theft of a motor vehicle, appellant
SerShawn Nicholson challenges the district court’s interpretation of Minnesota Statutes section 609.52, subdivision 2(a)(17) (2014). Nicholson argues that the word “takes”
should be defined to require that a person convicted under the statute had possession or
control of the vehicle, which he contends that he did not have. He asserts that once the
statute is interpreted properly, the evidence is not sufficient to support his conviction.
Because we find that the word “takes” may be interpreted broadly enough to cover
conduct that deprives an owner of possession, we affirm his conviction.
FACTS
On August 24, 2012, Nicholson rented a car from National Car Rental. The
original rental period expired on August 27, but Nicholson extended it through August
31. Nicholson did not return the car at the end of the rental agreement, and National
attempted to contact him. In September, National sent Nicholson a demand letter through
certified mail, but it was returned to sender. National attempted to call numerous times
but never reached Nicholson. The calls were occasionally answered, but never by anyone
willing to identify themselves; most of the attempted calls were met with silence or, on
one occasion, “a higher-pitched giggle.”
National eventually reported the car stolen, at which point it was able to activate
the car’s OnStar locating system. On October 18, 2012, OnStar notified police that it had
located the car in a Minneapolis parking ramp. Soon after, a Minneapolis-Saint Paul
Airport Police detective called Nicholson to interview him about the car. The detective
recorded the interview, which was later entered into evidence by the state.
When asked about the car, Nicholson gave several explanations for failing to
return it: he claimed that he had been in a coma for a month and a half, that he had given
2 the car to a woman who agreed to return the car for him, and that he was paying for the
rental the whole time. On those facts, the state charged Nicholson with one count of
felony theft of a motor vehicle. See Minn. Stat. § 609.52, subd. 2(a)(17).
The parties proceeded to a court trial. At the close of the state’s case, Nicholson
moved for an acquittal. He contended that the state had not produced any evidence that
he drove the car after the lease expired. Nicholson then argued that no reasonable
inference supported an essential element of the crime: that he took or drove the car while
knowing he did not have consent to do so. The state responded that Nicholson was in
possession of the car after August 31 and argued that “keeping what you are no longer
entitled to keep is a taking” under the statute. The district court denied Nicholson’s
motion.
Nicholson did not testify and did not offer any evidence to support his claims that
he had been in the hospital and that a woman had agreed to return the car for him.
Nicholson called two witnesses. The first, an airport police officer who recovered the
car, testified that the car was abandoned in a downtown Minneapolis parking garage. The
second, a National customer service representative, testified that she called Nicholson
many times at two different numbers and was frequently hung up on by people who did
not identify themselves. At the close of trial, the district court convicted Nicholson of
felony theft of a motor vehicle. Nicholson appeals.
DECISION
On appeal, Nicholson’s argument is two-fold. He argues that the district court
erred in interpreting the statute not to require the state to prove that he took or drove the
3 car without consent from the owner. Once the statute is interpreted correctly, Nicholson
asserts, the evidence is insufficient to support his conviction. His arguments are
unpersuasive.
I. Statutory Interpretation of “Takes”
Whether a statute has been properly construed is a question of law subject to de
novo review. State v. Murphy, 545 N.W.2d 909, 914 (Minn. 1996). “[W]ords and
phrases are construed according to rules of grammar and according to their common and
approved usage” unless they have a technical or acquired special meaning. Minn. Stat.
§ 645.08 (1) (2014). For evidence of common and approved usage, we turn to dictionary
definitions. See State v. Hartmann, 700 N.W.2d 449, 453-54 (Minn. 2005) (consulting
three dictionaries to determine whether a contested term had a well-defined and clear
meaning).
Minnesota Statutes section 609.52, subdivision 2(a)(17) provides that whoever
“takes or drives a motor vehicle without the consent of the owner or an authorized agent
of the owner, knowing or having reason to know that the owner or an authorized agent of
the owner did not give consent” commits theft. Minn. Stat. § 609.52, subd. 2(a)(17).
Nicholson contends that if the first element—that he took or drove a motor vehicle—is
interpreted properly, then the state failed to prove it beyond a reasonable doubt.
Neither “takes” nor “drives” is defined by the relevant statute, so we look for
evidence of their common usage. See Minn. Stat. § 645.08(1). The parties do not dispute
the word “drive” but cite diverging definitions of the word “take.” Nicholson suggests
the definition “[t]o get into one’s hands, control, or possession.” The American Heritage
4 Dictionary 1774 (5th ed. 2011). He asserts that if he did not possess the car after the
lease expired, then he could not have taken it. The state, by contrast, points to definitions
of “take” and “taking” in the fourth edition of Black’s Law Dictionary. The state asserts
that “taking” implies “a transfer of possession, dominion, or control,” and that “takes”
should be defined as “to deprive one of the use or possession of.” See Black’s Law
Dictionary 1625-26 (4th ed. 1968).
Each party suggests a simple definition, but the word “take” is fairly complicated.
The Compact Oxford English Dictionary, for example, devotes approximately 16 pages
to the word’s various definitions and etymology. Compact Oxford English Dictionary
557–73 (2d ed. 1991). The ninth edition of Black’s Law Dictionary uses approximately
two pages to define “take” in various contexts, but the first definition listed is “[t]o obtain
possession or control, whether legally or illegally.” Black’s Law Dictionary 1590–92
(9th ed. 2009). The definition of “taking,” however, includes a criminal- and tort-law
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This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA IN COURT OF APPEALS A14-2121
State of Minnesota, Respondent,
vs.
SerShawn Copone Nicholson, Appellant.
Filed November 23, 2015 Affirmed Chutich, Judge
Hennepin County District Court File No. 27-CR-13-10181
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Michael O. Freeman, Hennepin County Attorney, Michael Richardson, Assistant County Attorney, Minneapolis, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Roy G. Spurbeck, Assistant State Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Ross, Presiding Judge; Chutich, Judge; and Hooten,
Judge.
UNPUBLISHED OPINION
CHUTICH, Judge
Appealing from his conviction of felony theft of a motor vehicle, appellant
SerShawn Nicholson challenges the district court’s interpretation of Minnesota Statutes section 609.52, subdivision 2(a)(17) (2014). Nicholson argues that the word “takes”
should be defined to require that a person convicted under the statute had possession or
control of the vehicle, which he contends that he did not have. He asserts that once the
statute is interpreted properly, the evidence is not sufficient to support his conviction.
Because we find that the word “takes” may be interpreted broadly enough to cover
conduct that deprives an owner of possession, we affirm his conviction.
FACTS
On August 24, 2012, Nicholson rented a car from National Car Rental. The
original rental period expired on August 27, but Nicholson extended it through August
31. Nicholson did not return the car at the end of the rental agreement, and National
attempted to contact him. In September, National sent Nicholson a demand letter through
certified mail, but it was returned to sender. National attempted to call numerous times
but never reached Nicholson. The calls were occasionally answered, but never by anyone
willing to identify themselves; most of the attempted calls were met with silence or, on
one occasion, “a higher-pitched giggle.”
National eventually reported the car stolen, at which point it was able to activate
the car’s OnStar locating system. On October 18, 2012, OnStar notified police that it had
located the car in a Minneapolis parking ramp. Soon after, a Minneapolis-Saint Paul
Airport Police detective called Nicholson to interview him about the car. The detective
recorded the interview, which was later entered into evidence by the state.
When asked about the car, Nicholson gave several explanations for failing to
return it: he claimed that he had been in a coma for a month and a half, that he had given
2 the car to a woman who agreed to return the car for him, and that he was paying for the
rental the whole time. On those facts, the state charged Nicholson with one count of
felony theft of a motor vehicle. See Minn. Stat. § 609.52, subd. 2(a)(17).
The parties proceeded to a court trial. At the close of the state’s case, Nicholson
moved for an acquittal. He contended that the state had not produced any evidence that
he drove the car after the lease expired. Nicholson then argued that no reasonable
inference supported an essential element of the crime: that he took or drove the car while
knowing he did not have consent to do so. The state responded that Nicholson was in
possession of the car after August 31 and argued that “keeping what you are no longer
entitled to keep is a taking” under the statute. The district court denied Nicholson’s
motion.
Nicholson did not testify and did not offer any evidence to support his claims that
he had been in the hospital and that a woman had agreed to return the car for him.
Nicholson called two witnesses. The first, an airport police officer who recovered the
car, testified that the car was abandoned in a downtown Minneapolis parking garage. The
second, a National customer service representative, testified that she called Nicholson
many times at two different numbers and was frequently hung up on by people who did
not identify themselves. At the close of trial, the district court convicted Nicholson of
felony theft of a motor vehicle. Nicholson appeals.
DECISION
On appeal, Nicholson’s argument is two-fold. He argues that the district court
erred in interpreting the statute not to require the state to prove that he took or drove the
3 car without consent from the owner. Once the statute is interpreted correctly, Nicholson
asserts, the evidence is insufficient to support his conviction. His arguments are
unpersuasive.
I. Statutory Interpretation of “Takes”
Whether a statute has been properly construed is a question of law subject to de
novo review. State v. Murphy, 545 N.W.2d 909, 914 (Minn. 1996). “[W]ords and
phrases are construed according to rules of grammar and according to their common and
approved usage” unless they have a technical or acquired special meaning. Minn. Stat.
§ 645.08 (1) (2014). For evidence of common and approved usage, we turn to dictionary
definitions. See State v. Hartmann, 700 N.W.2d 449, 453-54 (Minn. 2005) (consulting
three dictionaries to determine whether a contested term had a well-defined and clear
meaning).
Minnesota Statutes section 609.52, subdivision 2(a)(17) provides that whoever
“takes or drives a motor vehicle without the consent of the owner or an authorized agent
of the owner, knowing or having reason to know that the owner or an authorized agent of
the owner did not give consent” commits theft. Minn. Stat. § 609.52, subd. 2(a)(17).
Nicholson contends that if the first element—that he took or drove a motor vehicle—is
interpreted properly, then the state failed to prove it beyond a reasonable doubt.
Neither “takes” nor “drives” is defined by the relevant statute, so we look for
evidence of their common usage. See Minn. Stat. § 645.08(1). The parties do not dispute
the word “drive” but cite diverging definitions of the word “take.” Nicholson suggests
the definition “[t]o get into one’s hands, control, or possession.” The American Heritage
4 Dictionary 1774 (5th ed. 2011). He asserts that if he did not possess the car after the
lease expired, then he could not have taken it. The state, by contrast, points to definitions
of “take” and “taking” in the fourth edition of Black’s Law Dictionary. The state asserts
that “taking” implies “a transfer of possession, dominion, or control,” and that “takes”
should be defined as “to deprive one of the use or possession of.” See Black’s Law
Dictionary 1625-26 (4th ed. 1968).
Each party suggests a simple definition, but the word “take” is fairly complicated.
The Compact Oxford English Dictionary, for example, devotes approximately 16 pages
to the word’s various definitions and etymology. Compact Oxford English Dictionary
557–73 (2d ed. 1991). The ninth edition of Black’s Law Dictionary uses approximately
two pages to define “take” in various contexts, but the first definition listed is “[t]o obtain
possession or control, whether legally or illegally.” Black’s Law Dictionary 1590–92
(9th ed. 2009). The definition of “taking,” however, includes a criminal- and tort-law
context with the following definition: “[t]he act of seizing an article, with or without
removing it, but with an implicit transfer of possession or control.” Id. at 1591. Under
the criminal- and tort-law contexts, Black’s Law Dictionary also defines “constructive
taking” as “[a]n act that does not equal an actual appropriation of an article but that does
show an intention to convert it, as when a person entrusted with the possession of goods
starts using them contrary to the owner’s instructions.” Id.
The Minnesota Supreme Court has applied a broad definition of the word
“taking,” but in the context of governmental takings. The supreme court stated: “[i]t is
well established that the government need not directly appropriate or physically invade
5 private property to effectuate a taking.” Wensmann Realty, Inc. v. City of Eagan, 734
N.W.2d 623, 632 (Minn. 2007). Even government regulation of property can be a taking
in limited circumstances. Id. This approach is consistent with the definition and
explanation found in Garner’s Dictionary of Legal Usage:
Lawyers have long argued about just what constitutes a taking, but it is hard now to improve on a general statement of more than a century ago: “Anything may be said to amount to a taking [that] deprives the owner of the use, occupation, or enjoyment of his property.”
Garner’s Dictionary of Legal Usage 877 (3d ed. 2011) (defining taking).
After considering the relevant evidence of common usage, we agree with the
state’s interpretation of the statute. A broader definition of “takes” is consistent with
common usage, legal dictionary definitions, and the supreme court’s interpretation of the
word in the context of governmental takings. Accordingly, “takes” describes conduct
when a person deprives an owner of the use of their possession, even if the deprivation is
caused by failing to return it rather than continuing to use it.
II. Sufficiency of the Evidence
When reviewing the sufficiency of the evidence supporting a conviction, this
court’s review is limited to a thorough analysis of the record to “determine whether the
evidence, when viewed in a light most favorable to the conviction, was sufficient to
permit the [fact-finder] to reach the verdict which they did.” State v. Webb, 440 N.W.2d
426, 430 (Minn. 1989). This court reviews a sufficiency-of-the-evidence claim by
determining whether legitimate inferences drawn from the record evidence would allow a
6 fact-finder to conclude that the defendant was guilty beyond a reasonable doubt. State v.
Pratt, 813 N.W.2d 868, 874 (Minn. 2012).
We “assume that the [fact-finder] believed all of the state's witnesses and
disbelieved any evidence to the contrary.” State v. Chambers, 589 N.W.2d 466, 477
(Minn. 1999). This court “will not disturb the verdict if the [fact-finder], 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. Bernhardt v. State, 684 N.W.2d 465, 476–77 (Minn. 2004) (quotations omitted).
Reversal is appropriate, however, “if facts proving an essential element of the offense are
left more to conjecture and speculation than to reasonable inference.” State v. DeRosier,
695 N.W.2d 97, 108 (Minn. 2005).
Here, the district court concluded that Nicholson’s conduct satisfied all four
elements of felony theft of a motor vehicle, including that he took or drove a motor
vehicle. The district court made, among others, the following findings of fact: (1) the
original rental agreement ended on August 27, 2012; (2) Nicholson extended the contract
until August 31, 2012; (3) the car was not returned at the end of the extended contract
period; (4) National unsuccessfully tried to contact Nicholson numerous times at
telephone numbers that he provided; (5) National reported the car stolen; and (6) the
police found the car abandoned in a parking ramp. These findings are based on the
record and are not clearly erroneous. The district court also disbelieved Nicholson’s
explanation that he had been in a coma for a month and a half and that he had given the
7 car to a friend who promised to return it. We give great deference to a district court’s
credibility findings. State v. Doren, 654 N.W.2d 137, 141 (Minn. App. 2002).
Because the word “takes” includes conduct broad enough to encompass actions
that deprive owners of their property, and Nicholson deprived National of its property by
failing to return the car, the district court did not err in finding that Nicholson took or
drove the car in violation of Minnesota Statutes section 609.52, subdivision 2(a)(17).
Accordingly, sufficient evidence in the record supports Nicholson’s conviction of felony
theft of a motor vehicle.
Affirmed