State of Minnesota v. Vennie Jerome Williams

This opinion will be unpublished and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
A14-1204

State of Minnesota,
Respondent,

vs.

Vennie Jerome Williams,
Appellant.

Filed August 10, 2015
Affirmed
Schellhas, Judge

Hennepin County District Court
File No. 27-CR-13-3130

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Michael O. Freeman, Hennepin County Attorney, Lee W. Barry, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Jenna Yauch-Erickson,
Assistant Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Reyes, Presiding Judge; Schellhas, Judge; and Larkin,

Judge.

UNPUBLISHED OPINION

SCHELLHAS, Judge

Appellant challenges his conviction of felony theft (aggregate value over $5,000),

arguing that the state failed to prove beyond a reasonable doubt that the aggregate value
of the stolen property exceeded $5,000. Appellant also challenges his enhanced felony

convictions for theft and attempted theft and enhanced felony sentence for attempted

theft. We affirm.

FACTS

In early 2012, a pattern of iPad thefts emerged at metro-area Target stores. A

person would approach a Target employee and ask to exchange an iPad. In accordance

with protocol, the employee would remove an iPad from a locked case in the electronics

department and personally deliver it to the customer-service counter to facilitate the

requested exchange. The person then would remove the iPad from the customer-service

counter and leave the store without exchanging or paying for it. Consistent with this

modus operandi, a man stole an iPad from the Nicollet Mall Target store on January 26,

2012; stole an iPad from the same store on February 10; and attempted to steal an iPad

from the same store on March 27.

On February 4, 2012, without permission, a man took a customer’s computer and

iPod from behind a service counter at the Ridgedale Mall Apple Store and left the store.

On April 9, without permission, a man took a customer’s computer from a service

counter at the Ridgedale Mall Apple Store and left the store.

Respondent State of Minnesota identified appellant Vennie Williams as the

suspect in the thefts and attempted theft and, as pertinent to this appeal, charged Williams

with one count of attempted felony theft and five counts of felony theft, including one

2
count of felony theft (aggregate value over $5,000).1 The count of attempted felony theft

and two counts of felony theft were enhanced based on Williams’s June 2008 felony theft

conviction. Williams waived his jury-trial right, and the district court conducted a bench

trial. The state presented testimony from a senior Target protection specialist, three

Target asset protection specialists, two off-duty police officers who worked for Target, a

Target electronics-department employee, an Apple Store manager, an Apple Store

customer, an Apple Store loss-prevention manager, and a former retail investigator. The

state also introduced video surveillance footage and still images from the thefts and

attempted thefts.

The district court convicted Williams of five counts of felony theft and one count

of attempted felony theft. The court found that Williams stole property with an aggregate

value over $5,000, based on its findings that Williams stole an iPad worth $699, an iPad

worth $729.99, a computer worth $1,200, and a computer worth $2,500. The court also

found that Williams attempted to take an iPad worth $829.99. The court sentenced

Williams to 27 months’ imprisonment for felony theft (aggregate value over $5,000) and

concurrently to imprisonment for one year and one day for attempted theft.

This appeal follows.

1
The state charged Williams with two additional counts of attempted felony theft,
involving incidents on January 27, 2012, at the Shingle Creek Parkway Target store, and
February 17, 2012, at the Lake Street Target store. The state dismissed one count, and the
district court acquitted Williams of the other count.

3
 DECISION

Sufficiency of the evidence

Williams argues that his conviction of felony theft (aggregate value over $5,000)

is not supported by sufficient evidence. “[Appellate courts] use the same standard of

review in bench trials and in jury trials in evaluating the sufficiency of the evidence.”

State v. Palmer, 803 N.W.2d 727, 733 (Minn. 2011). “[Appellate courts] review the

evidence to determine whether, given the facts in the record and the legitimate inferences

that can be drawn from those facts, a [fact-finder] could reasonably conclude that the

defendant was guilty of the offense charged.” State v. Fairbanks, 842 N.W.2d 297, 306–

07 (Minn. 2014) (quotation omitted). “In conducting that review, [appellate courts]

assume the factfinder believed the State’s witnesses and disbelieved any evidence to the

contrary.” State v. Hohenwald, 815 N.W.2d 823, 832 (Minn. 2012).

Williams’s conviction of felony theft (aggregate value over $5,000) is based on his

violation of Minnesota Statutes section 609.52, subdivisions 2(a)(1), 3(2), 3(5) (2010).

Section 609.52, subdivision 3(5),

provides in part that “in any prosecution under [specified
provisions of the theft statute] the value of the money or
property received by the defendant in violation of any one or
more of the [specified] provisions within any six month
period may be aggregated and the defendant charged
accordingly.”

See State v. Hanson, 285 N.W.2d 483, 485 (Minn. 1979) (quoting 1978 version of section

609.52, subdivision 3(5), and noting that supreme court upheld the constitutionality of the

statute in State v. Mathiasen, 273 Minn. 372, 378–79, 141 N.W.2d 805, 810 (1966)). The

4
word “value” in section 609.52 “means the retail market value at the time of the theft, or

if the retail market value cannot be ascertained, the cost of replacement of the property

within a reasonable time after the theft.” Minn. Stat. § 609.52, subd. 1(3) (2010).

Here, the district court found that the value of the property that Williams stole on

February 4, 2012, was $1,200. The evidence to support the court’s finding was the Apple

Store loss-prevention manager’s testimony that the computer had an estimated value of

about $1,100 and the iPod had an estimated value of about $199. Williams argues that the

evidence was insufficient because the manager only estimated the values and did not

specify whether the estimated values constituted retail market values or replacement

costs.

The district court also found that the value of the computer that Williams stole on

April 9, 2012, was $2,500. The evidence to support the court’s finding was as follows:

(1) the Apple Store manager’s testimony that the store replaced the stolen computer with

the “most comparable” computer, valued at $2,649; and (2) the customer’s testimony that

he purchased the stolen computer for $2,000 or $2,200 about two years before the theft,

that he paid “several hundred dollars” to replace the stolen computer’s hard drive, and

that the stolen computer had 40 to 50 applications, some of which cost between $20 and

$80, and Microsoft Office, which cost about $200. Williams argues that this testimony

constituted replacement-cost evidence that could be considered only if the state first

proved that retail market value could not be ascertained.

Williams’s property-value arguments are unavailing. We have affirmed at least

one conviction that was based in part on property-valuation testimony that did not specify

5
how the value was determined. See Herme v. State, 384 N.W.2d 205, 207–08 (Minn.

App. 1986) (concluding that evidence was sufficient to support jury’s finding that value

of stolen property exceeded $2,500, although valuation evidence did not include specifics

as to retail market value or replacement cost), review denied (Minn. May 22, 1986). We

also have affirmed a conviction for which the value of stolen property was proved

primarily by the owner’s description of the age and condition of the property and the

“estimated . . . value of the various items of property based on their original purchase

prices.” See State v. Clipper, 429 N.W.2d 698, 699–700 (Minn. App. 1988); see also

State v. Arnold, 292 Minn. 495, 496, 196 N.W.2d 125, 126 (1972) (holding that owner’s

testimony about price of property purchased two years before theft and jury’s physical

observation of property “constituted a substantial compliance with the statute”).

We conclude that, viewed in the light most favorable to the verdict, testimony of

the Apple Store manager, the Apple Store loss-prevention manager, and the customer

about the value of the stolen computers and iPod constituted substantial compliance with

section 609.52, subdivision 1(3), and was sufficient to prove the value of the stolen

property.

Enhanced felony convictions and sentence

The district court found that Williams had a June 2008 conviction for felony theft

and therefore entered enhanced felony convictions for each count of theft and attempted

theft that involved property with a value of more than $500 but not more than $1,000.

The court also imposed an enhanced felony sentence for the count of attempted theft.

6
Williams argues that the court erred by entering the enhanced felony convictions and

imposing the enhanced felony sentence.

A person who “commits theft” may be sentenced “to imprisonment for not more

than five years or to payment of a fine of not more than $10,000, or both, if [certain]

circumstances exist,” including that “the value of the property or services stolen is more

than $500 but not more than $1,000 and the person has been convicted within the

preceding five years for an offense under this section, . . . and the person received a

felony or gross misdemeanor sentence for the offense.” Minn. Stat. § 609.52, subd. 3

(2010). Williams argues that “the preceding five years” is measured from the date a

person is sentenced for a current theft offense. We are not persuaded.

“Statutory interpretation is a question of law that is subject to de novo review.”

State v. Nodes, 863 N.W.2d 77, 80 (Minn. 2015). “[An appellate court’s] primary

objective in interpreting statutory language is to give effect to the legislature’s intent as

expressed in the language of the statute.” Nichols v. State, 858 N.W.2d 773, 775 (Minn.

2015) (quotation omitted). “The first step in statutory interpretation is to determine

whether the statute is ambiguous on its face.” State v. Jones, 848 N.W.2d 528, 535

(Minn. 2014). “A statute is ambiguous only when the statutory language is subject to

more than one reasonable interpretation.” State v. Fleck, 810 N.W.2d 303, 307 (Minn.

2012). “When the Legislature’s intent is clear from the unambiguous statutory language,

[appellate courts] apply the plain meaning of the statute.” State v. Franklin, 861 N.W.2d

67, 69 (Minn. 2015).

7
 We conclude that the statutory language is unambiguous and that “the preceding

five years” is a look-back period that begins when the offender “commits theft.” Section

609.52, subdivision 3, provides that if certain “circumstances exist,” including that a

“person has been convicted [of felony or gross-misdemeanor theft] within the preceding

five years,” and the person “commits theft,” an enhanced five-year sentence is available.

Under the plain language of the statute, the prior conviction must exist at the time that the

theft is committed. To embrace Williams’s argument, we would be required to conclude

that enhancement may be based on any conviction entered after the commission of the

present theft and before sentencing for the present theft. If the legislature intended this

result, it could have made an express reference to the sentencing date. But the legislature

did not make an express reference to the sentencing date, and “[appellate courts] cannot

rewrite a statute under the guise of statutory interpretation.” Laase v. 2007 Chevrolet

Tahoe, 776 N.W.2d 431, 438 (Minn. 2009). We will not add words to a statute. See In re

Civil Commitment of Ince, 847 N.W.2d 13, 24 (Minn. 2014) (“[Appellate courts] will not

add words to a statute that the Legislature has purposely omitted or inadvertently

overlooked.” (quotation omitted)).

Because we interpret section 609.52, subdivision 3, to mean that a defendant may

be subject to an enhanced sentence if he was convicted of felony or gross-misdemeanor

theft within five years preceding the commission of another theft offense, we conclude

that the district court did not err by entering the enhanced felony convictions and by

imposing the enhanced felony sentence.

Affirmed.

8