State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A16-2079

State of Minnesota,
Respondent,

vs.

Jennifer Lynn Mulvihill,
Appellant.

Filed September 18, 2017
Affirmed
Jesson, Judge

Hennepin County District Court
File No. 27-CR-16-2312

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

Michael O. Freeman, Hennepin County Attorney, Linda K. Jenny, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebroo k, Chief Appellate Public Defender, Jennifer Workman Jesness,
Assistant Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Reyes, Presiding Judge; Reilly, Judge; and Jesson,
Judge.
U N P U B L I S H E D O P I N I O N
JESSON, Judge
On appeal from her felony theft convictions, appellant Jennifer Lynn Mulvihill
argues that the district court committed reversible error by admitting hearsay evidence
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regarding the stolen property’s value and that the evidence was insufficient to prove that
the stolen property’s value was more than $1,000. Because the challenged testimon y was
not hearsay, and because the evidence was sufficient to prove that the value of the stolen
property was more than $1,000, we affirm.
FACTS
Around 5:00 p.m. o n December 13, 2015, Jennifer Hirschi was working at
Sundance, a store in the Galleria shopping center in Edina , when she found a bracelet that
had fallen into a basket of merchandise . Because Hirschi did no t want to be responsible
for what might be an expensive bracelet , she decided to take it to Guest Se rvices, which
managed the Galleria’s shopping-center-wide lost and found. While on the floor, Hirschi
called Guest Services and spoke to Diane Syverson. Hirschi explained that she found a
valuable bracelet, and Syverson told her to bring it to Guest Services where it would be
locked in a safe. Hirschi then walked to Guest Services and gave Syverson the bracelet.
About 10 to 15 minutes later, Syverson received a phone call from an upset woman
who said that she lost her bracelet. After telling the woman that she could come to Guest
Services, Syverson requested that a member of security come to the Guest Services desk.
When Kiley Budge, a security officer, arrived at Guest Services, Syverson explained that
someone was coming to check on a lost bracelet and showed Budge the bracelet that was
found in Sundance. Shortly thereafter, a woman came to Guest Services and said that she
lost her bracelet. Syverson asked for the woman’s identification, and the woman produced
a Costco card bearing the name Jennifer Mulvihill. Mulvihill described the bracelet as
having diamonds, and Syverson gave Mulvihill the bracelet that was found in Sundance.
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That evening, J.P. arrived home and noticed that a bracelet that she had worn while
at the Galleria was missing. The following day , J.P. called Guest Services and was told
that no bracelet was in the lost and found. J.P. then began calling each of the stores where
she had shopped on December 13 , 2015. When J.P. called Sundance to inquire about her
lost bracelet, an employee told her that a bracelet had been found and turned into Guest
Services. J.P. called Guest Services again and was told that she would have to call back
when the director of security was available. On December 15, 2015, J.P. spoke with the
director of security, who explained that another person claimed the bracelet shortly after it
was turned into Guest Services. A member of the Galleria’s security contacted the Edina
police, and Officer Seeger conducted an investigation.
In January 2016, Mulvihill was charged with one count of felony theft by swindle
in violation of Minn. Stat. § 609.52, subd. 2(a)(4) (2014), and one count of felony theft by
finding and appropriating lost property in violation of Minn. Stat. § 609.52, subd. 2(a)(6)
(2014). At trial, several exhibits were received and Hirschi, Sy verson, Budge, Officer
Seeger, and J.P . testified. T he jury found Mulvihill guilty of both felony theft offenses .
On October 4, 2016, the district court formally adjudicated Mulvihill guilty of both
offenses1 and stayed imposition on both counts. Mulvihill now appeals.

1 Generally, whether a defendant was formally adjudicated guilty of an offense is
determined by looking at the official judgment of conviction. State v. Jackson, 363 N.W.2d
758, 760 n.4 (Minn. 1985). Here, the sentencing order makes clear that Mulvihill w as
formally adjudicated guilty of both felony theft by swindle and felony theft by finding and
appropriating lost property.
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D E C I S I O N
It is the state’s burden to prove every element of an offense beyond a reasonable
doubt. State v. Brechon, 352 N.W.2d 745, 750 (Minn. 1984). Here, the state was required
to prove that the stolen bracelet’s value was more than $1,000. Minn. Stat. § 609.52,
subd. 3(3)(a) (2014). Mulvihill asserts that the state failed to meet this burden because:
(1) it relied on inadmissible hearsay evidence to prove the bracelet’s value; and (2) the
testimony regarding the bracelet’s 1999 purchase price was insufficient to prove the
bracelet’s value.
I. The challenged testimony was not hearsay.
Mulvihill argues that the district court committed reversible error by admitting J.P.’s
testimony that her husband told her that he bought the bracelet for $2,000 because that
testimony was inadmissible hearsay.
At trial, defense counsel made an unspecified obje ction to J.P.’s testimony that
$2,000 had been paid to purchase her bracelet. Under Minn. R. Evid. 103, “[e]rror may
not be predicated upon a ruling which admits . . . evidence unless . . . a timely objection
. . . appears of record, stating the specific ground of objection, if the specific ground was
not apparent from context.” Minn. R. Evid. 103(a)(1). But nothing in rule 103 precludes
an appellate court from taking notice of plain errors affecting substantial rights. Minn. R.
Evid. 103(d). To determ ine the standard of review where an unspecified objection was
made at trial, an appellate court must determine if the specific ground for the objection is
clear from the context. State v. Brown, 792 N.W.2d 815, 820 (Minn. 2011). “If the specific
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ground for the objection is not clear from the context, then [an appellate court] review[s]
the admission of evidence under a plain-error analysis.” Id.
Here, defense counsel’s unspecified objection occurred as follows, during the direct
examination of J.P.:
PROSECUTOR: Where had you gotten the bracelet?
J.P.: My husband gave it to me before the birth of our daughter
and he purchased it in 1999, December of 1999. So it was a
gift.
PROSECUTOR: Do you know where he got it?
J.P.: I don’t know for sure. I don’t know for sure.
PROSECUTOR: All right. And do you know how much was
paid for it?
J.P.: $2,000.
DEFENSE COUNSEL: Objection.

Because the specific ground for defense counsel’s objection is not clear from the record,
we review the admission of J.P.’s testimony for plain error. Under the plain-error standard,
the defendant must show “(1) error (2) that was plain and (3) that affected the defendant’s
substantial rights.” State v. Manthey, 711 N.W.2d 498, 504 (Minn. 2006).
First, we must determine whe ther the district court erred by admitting J.P.’s
testimony. “[W]e review evidentiary decisions for an abuse of discretion.” State v.
Chavez-Nelson, 882 N.W.2d 579, 588 (Minn. 2016); see State v. Burrell, 772 N.W.2d 459,
469 (Minn. 2009) (providing that evidentiary rulings on hearsay statements are viewed for
clear abuse of discretion). “‘Hearsay’ is a statement, other than one made by the declarant
while testifying at the trial or hearing, offered in evidence to prove the truth of the matter
asserted.” Minn. R. Evid. 801(c). When an out -of-court statement is offered for some
other purpose, such as to prove knowledge, the statement is not hearsay. Minn. R. Evid.
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801 1989 comm. cmt.; see State v. Litzau , 650 N.W.2d 177, 183 n.4 (Minn. 2002)
(explaining that an officer may reconstruct the steps in a criminal investigation and testify
that he spoke to an informant, but cannot disclose the substance of that conversation).
When asked if she knew how much had been paid for the bracelet, J.P. responded,
“$2,000.” Because J.P.’s response did not include any out -of-court statement, this
testimony was not hearsay.
On cross-examination, defense counsel elicited the following testimony:
DEFENSE COUNSEL: Okay. You were asked about the
value of the bracelet, correct?
J.P.: Mm hm.
DEFENSE COUNSEL: Okay, but you didn’t purchase it,
right?
J.P.: No.
DEFENSE COUNSEL: Did you see a receipt for it?
J.P.: No.
. . . .
DEFENSE COUNSEL: Okay. So you did not get the bracelet
appraised?
J.P.: No.

On redirect, the prosecutor asked J.P. if she knew “whether those were real diamonds” in
the bracelet, and J.P. replied, “[M]y husband gave it to me and . . . since [he] ha s told me
what he paid for it and so my assumption is that they were real diamonds.” Although J.P.’s
response refers to an out-of-court statement, the statement was not offered to prove the true
amount paid for the bracelet. Rather, J.P. testified regarding her husband’s statement to
prove that she had knowledge about whether the diamonds in her bracele t were real. Fo r
this reason, J.P.’s response was not hearsay.
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Mulvihill attempts to combine J.P.’s testimony on direct, in which she states that
$2,000 was paid for the bracelet, with J.P.’s testimony on redirect, in which she states that
her husband told her what he paid for the bracelet. Only by combining J.P.’s testimony on
direct and redirect can Mulvihill assert that J.P. “testified that her husband told her the
value of the bracelet was $2,000.” Mulvihill does not cite any legal authority to supp ort
her argument that these statements, which are separated by several pages in the trial
transcript, should be read together to form a single statement that must be excluded as
hearsay. We decline to combine J.P.’s statements in the manner suggested by Mulvihill.
Relying on Bartl v. City of New Ulm, 245 Minn. 148, 151-52, 72 N.W.2d 303, 306
(1955), Mulvihill further asserts that an estimate of a piece of property’s value by a person
who did not purchase the property amounts to inadmissible hearsay. Mulvihill’s reliance
on Bartl is misplaced. In Bartl, a witness who was engaged in the plumbing business was
asked about the cost of tanks the same size as the plaintiff’s damaged tanks. 245 Minn. at
151, 72 N.W.2d at 306. “The witness testified that since the tanks were special equipment
he had to ‘acquire quotations’ from another source.” Id. at 152, 72 N.W.2d at 306. Because
“an estimate of value of property from a witness other than the owner based solely on price
quotations obtained by means of a special inquiry constitute[s] hearsay,” the supreme court
held that the district court properly excluded the witness’s testimony as hearsay. Id.
(emphasis added). Here, J.P., the owner of the bracelet, testified as to its value. For this
reason, the holding of Bartl is inapposite.
Because Mulvihill has failed to show that the district court erred by admitting
hearsay evidence, she cannot establish plain error.
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II. The evidence was sufficient to prove that the bracelet’s value was more than
$1,000.

Mulvihill next argues that the evidence produced at trial was insufficient to prove
that the bracelet’s value was more than $1,000. When the sufficiency of the evidence is
challenged, an appellate court reviews “the evidence to determine whether, given the facts
in the record and the legitimate inferences that can be drawn from those facts, a jury 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). “ The reviewing
court must assume the jury believed the state’s witnesses and disbelieved any evidence to
the contrary.” State v. Heiges, 806 N.W.2d 1, 17 (Minn. 2011) (quotation omitted).
The theft statute defines “value” as “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) (2014). “A jury
can properly accept an owner’s testimony as to the value of his or her own property.” State
v. Clipper, 429 N.W.2d 698, 700 (Minn. App. 1988).
At trial, several witnesses testified regarding the bracelet’s value. J.P. testified that
her husband purchased the bracelet for $2,000 in 1999. Hirschi described the bracelet as
containing diamonds, yellow gold, and white gold or platinum. Hirschi further testified
that she had worked in retail for a long time, had exper ience with both costume jewelry
and fine jewelry, and believed that the bracelet she found contained real gold and real
diamonds based upon the bracelet’s appearance and weight. Budge also described the
bracelet as a diamond bracelet and testified that it looked expensive to her.
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Relying on State v. Stout, 273 N.W.2d 621, 623 (Minn. 1978), Mulvihill asserts that
J.P.’s testimony regarding the bracelet’s purchase price is not conclusive evidence of the
bracelet’s value. In Stout, the supreme court held that a store owner’s testimony that he
would have sold the ring that was stolen from his store , which had a $2,995 price tag, for
less than $2,500 precluded a finding that the value of the ring was more than $2,500. 273
N.W.2d at 623. Although the supreme court recognized that testimony as to the price on a
price tag is ordinarily sufficient to justify a finding that the price listed was the retail market
value of the item, it concluded that the price on a price tag is not conclusive because the
price charged by a store may not accurately reflect the market value of the item. Id. Unlike
in Stout, no evidence concerning the seller’s markup of the bracelet was presented here. In
the absence of any evidence suggesting that the bracelet’s price differed fro m its market
value, J.P.’s testimony that $2,000 was paid for the bracelet in 1999 was sufficient to justify
a finding that the bracelet had a retail market value of $2,000 in 1999.
Mulvihill additionally argues that evidence of the 1999 purchase price wa s
insufficient to prove that the bracelet’s value exceeded $1,000 because the bracelet could
have depreciated over time. However, Mulvihill offered no evidence to show that the
bracelet depreciated. This court has upheld convictions where the state presented evidence
of the original purchase price and the age of the stolen items, even when the current market
value of the stolen goods was indeterminable. See Clipper, 429 N.W.2d at 700; Herme v.
State, 384 N.W.2d 205, 208 (Minn. App. 1986), review denied (Minn. May 22, 1986).
Here, J.P. described the bracelet’s original purchase price and age when she testified that
her husband purchased the bracelet for $2,000 in 1999. From this testimony, the jury could
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infer that the bracelet had a retail market value of more than $1,000 at the time of the theft
or a replacement cost of more than $1,000 within a reasonable time after the theft.
From our careful review of the record, we conclude that the evidence was sufficient
to prove that the bracelet’s value was more than $1,000.
Affirmed.