State v. Greiner

518 N.W.2d 636, 1994 Minn. App. LEXIS 603, 1994 WL 283377

• Court: Court of Appeals of Minnesota
• Decided: June 28, 1994
• Docket: No. C8-93-1767
• Status: Published

Opinions

OPINION

FORSBERG, Judge.

Appellant Karen Greiner was convicted after a court trial of one count of temporary theft (aggregating). Minn.Stat. § 609.52, subds. 2(5)(a), 2(1), 3(2), 3(5) (1992). Greiner argues her prosecution was barred by the statute of limitations, and challenges the sufficiency of the evidence and admission of Spreigl evidence at trial. We reverse.

FACTS

Gail and Michael Swor contracted orally with appellant in early 1988 to decorate the Swors’ residence. The Swors paid 50% down, with the balance due upon delivery of each piece of merchandise. The down payments were made on individual items, as Greiner required a 50% down payment before she would order a piece of merchandise. Appellant did not charge a separate design or consulting fee, but added her own retail markup to the wholesale price of each piece. The Swors paid over $42,000 to appellant between May and December 1989, but received only about $20,000 in goods and services.

As appellant received each down payment, she deposited the funds into her personal checking account. Appellant used these payments for her own personal expenses and the needs of other clients. Appellant also converted some of the Swors’ payments into cashier’s cheeks, rather than depositing the funds, in order to hide them from her creditors.

The Swors made repeated demands for performance of the contract or return of their funds. Appellant either avoided their telephone calls or told them the merchandise was on back order. Appellant finally admitted to Mrs. Swor in the spring of 1990 that the Swors’ money was gone and wouldn’t be available to pay for any merchandise even if it was delivered. The Swors brought a civil action against appellant which was settled in August 1992. Appellant agreed to repay $18,000 to the Swors.

At a court trial in April 1993, appellant was convicted of one count of temporary theft (aggregating). Appellant challenges her conviction, citing the statute of limitations, insufficient evidence, and improper admission of Spreigl evidence.

ISSUE

Was appellant’s prosecution barred by the three-year statute of limitations?

ANALYSIS

Appellant argues her prosecution was barred by the three-year statute of limitations, Minn.Stat. § 628.26(h) (1992). This issue requires the application of a statute to a particular set of facts. Court rulings on mixed questions of law and fact are not binding on an appellate court but are subject to independent review. Meyering v. Wessels, 383 N.W.2d 670, 672 (Minn.1986). The complaint against appellant was filed on November 19, 1992. To fall within the three-year limitation, appellant had to have been possessing, controlling or concealing the Swors’ money on or after November 19, 1989.

Appellant was charged with theft by intent to exercise temporary control, which is a continuing offense under Minnesota law. State v. O’Hagan, 474 N.W.2d 613, 622 (Minn.App.1991), pet. for rev. denied (Minn. Sept. 25, 1991). “[T]he offense continues for as long as the actor possesses the property and intends to exercise control or is exercising control over the property.” Id.

The Swors wrote several cheeks to appellant between May and October 1989. The evidence at trial showed that appellant’s checking account balance was at or below zero numerous times during that period. Appellant argues her control over the Swors’ money ceased after she spent it for her own purposes. We agree. Once appellant spent the Swors’ money, she was no longer possessing or controlling it for purposes of the statute. See O’Hagan, 474 N.W.2d at 621. Appellant’s misuse of these funds falls outside the three-year limitation period, because the crime was complete several weeks before November 19, 1989.

Appellant deposited one check from the Swors on November 16, 1989 and another on December 26, 1989. The evidence at trial showed these checks were payments for merchandise already received by the Swors, rather than deposits for future merchandise. While appellant was indeed controlling these funds on or after November 19, 1989, they cannot form the basis for her conviction because these funds belonged to appellant upon receipt.

DECISION

Because appellant’s crime was completed more than three years before the complaint was filed, her prosecution was barred by the statute of limitations. Our resolution of this issue renders appellant’s remaining arguments moot. Appellant’s conviction is reversed.

Reversed.