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This opinion will be unpublished and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
A17-0753

State of Minnesota,
Respondent,

vs.

Douglas Lamont Gatlin Jr.,
Appellant.

Filed May 7, 2018
Affirmed
Reilly, Judge

Washington County District Court
File No. 82-CR-16-2637

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

Pete Orput, Washington County Attorney, Nicholas A. Hy dukovich, Assistant County
Attorney, Stillwater, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appe llate Public Defender, Adam Lozeau, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Cleary, Chie f Judge; Reilly, Judge; and Stauber, Judge.
*

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.

2
U N P U B L I S H E D O P I N I O N
REILLY, Judge
Appellant challenges his convictions of robbery and receiving stolen property,
arguing that there was insufficient evidence supporting his convictions and that the district
court erred by declining to instruct the jury on lesser-included offenses. We affirm.
FACTS
In July 2016, appellant Do uglas Gatlin, Jr. entered a Perk in’s restaurant in Forest
Lake and removed a cash drawer from behind the counter. As he tried to leave the building,
restaurant employees and patrons physically st opped him. The state’ s witnesses testified
that, during the struggle, appellant wrestled w ith and punched those trying to prevent his
escape, and appellant also stru ck an employee with the cash drawer. Police arrived and
arrested appellant.
Outside the restaurant, arresting officers discovered a stolen white Dodge Journey.
Several vehicles in the parking lot had their windows smashed out. Items stolen from those
vehicles were found inside the Dodge Journey, an SUV. Thirty minutes before the Perkin’s
incident, a man driving a white SUV removed an object from the SUV’s trunk and smashed
a car window in the parking lot of a Walmart near the Perkin’s.
Appellant was charged with simple robb ery (the cash drawer), receiving stolen
property (the Dodge Journey), criminal dama ge to property (the smashed windows), and
obstructing a peace officer from performing official duties.

3
At the close of trial, appellant requested that the jury be in structed on the lesser-
included offenses of attempted robbery, theft, and attempted theft, which the court denied.
The jury convicted appellant of all four offenses.
This appeal followed.
D E C I S I O N
I. Sufficient evidence supports the jury’s verdict that appellant used force to
overcome another’s resistance to his taking away of property.

Appellant argues there was insufficient evidence to convict him of simple robbery,
because the state did not prove that he overcame another’s resistance when he took the cash
drawer and/or its contents. This court review s the sufficiency of the evidence supporting
a conviction to determine whether the facts in the record and legitimate inferences thereof
are enough for a reasonable jury to find appellant guilty of the offense. State v. McArthur,
730 N.W.2d 44, 49 (Minn. 2007). We view th e evidence in a light mo st favorable to the
conviction. State v. Moore, 846 N.W.2d 83, 88 (Minn. 2014).
A person commits robbery when they “tak e[] personal property from the person or
in the presence of another and use[] or thre aten[] the imminent use of force against any
person to overcome the person’s resistance or powers of resistance to, or to compel
acquiescence in, the taking or carrying away of the property . . . .” Minn. Stat. § 609.24
(2016). A person’s “taking or carrying away” is complete, “once the [property is] in his
hands” if only for a few seconds; “the fact th at the control or domini on did not last long
does not make any difference.” State v. Solomon, 359 N.W.2d 19, 21 (Minn. 1984).

4
A. Appellant used force agai nst a person to overcome their resistance to his
carrying away of property.

Appellant claims he cannot have used force against a person to overcome their
resistance when he carried away the property, because he never actually overcame
anyone’s resistance. Appellant argues that the phrase “to overcome the person’s
resistance” unambiguously requires that a defendant actually overcome another’s
resistance in order to be convicted of robbery.
When interpreting statutes, “words and phr ases are construed according to rules of
grammar and according to their common and approved usage . . . .” Minn. Stat. § 645.08(1)
(2016). Dictionary definitions can dete rmine the plain meanings of words. State v.
Haywood, 886 N.W.2d 485, 488 (Minn. 2016).
Reading the plain language of the statute, the phrase “use of force against any person
to overcome the person’s resistance” means any use of force for the purpose of overcoming
their resistance. The language of the statut e does not require that appellant actually
overcome a person’s resistance, only that he used force in the taking of personal property.
F.D., a Perkin’s employee, testified that she noticed appellant behind the counter
and came over to stop him. According to F.D ., appellant jammed the corner of the cash
drawer into her chest to resist her attempts to stop him. S.D., another Perkin’s employee,
testified that he saw F.D. grab appellant, wh ich corroborates F.D.’s testimony. S.D. also
testified that appellant wrestled with him an d threw a punch at a patron while trying to
escape the Perkin’s. The video corroborates S.D.’s testimony that appellant was wrestling

5
with him, as it shows that th ere was some struggle in the vestibule before appellant was
ultimately pinned down.1
Based on the testimony of F.D. and S.D., a ppellant used force in an attempt to resist
F.D.’s efforts to prevent his escape with th e property. Whether or not appellant was
actually successful in overcoming others’ resistance to his taking personal property is not
material. The fact that he used force to resist them at all is the element of the crime. On
appeal, we view the evidence in a light most favorable to the conviction, and there is
sufficient uncontroverted evidence for the jury to convict appellant.
B. Appellant “carried away” the cash drawer and/or its contents.
Appellant next argues that he cannot be convicted of robbery because he was not
successful in “carrying away” the cash drawer and its contents. Under Solomon, a robber
has “carried away” property once it is in his ha nds, if even for a moment. 359 N.W.2d at
21. Here, appellant completed the “carrying away” of the cash drawer and its contents by
removing it from the cash register and moving around the counter to leave the building.

1 Appellant claims that video evidence clearly rebuts the state’s witnesses, and asks this
court to disbelieve those witnesses in the face of obvious video evidence. See Scott v.
Harris, 550 U.S. 372, 378, 127 S. Ct. 1769, 1775 (2007) (holding that a video that blatantly
contradicts facts described by respondent’s ve rsion of events so that no reasonable jury
could believe it compels the court to not adopt the respondent’s version of the facts for the
purposes of ruling on a summary judgment motion). Appellant raised this argument for
the first time in his reply brief. Issues not raised in an appellant’s principal brief cannot be
raised in a reply brief for the first time, and we may decline to consider those issues. State
v. Thompson, 873 N.W.2d 873, 876 n.1 (Minn. App. 2015). Even if we elected to consider
this issue, appellant’s argument is without merit. The video in this case does not “blatantly
contradict” the state’s witnesses such that this court should disregard their testimony. The
video has poor visual quality, and it is difficult to see the area of the Perkin’s where F.D.
testified she grabbed appellant’s arm and hoodie.

6
The fact that he never got “away” from the build ing is not relevant to the analysis. There
is sufficient evidence to show that he “carried away” personal property.
There is sufficient evidence in the record to show that appellant committed simple
robbery.
II. There is sufficient evidence to prove that appellant took personal property.

Appellant argues his conviction for robbery should be overturned because there is
insufficient evidence to show that appellant took pers onal property, because the cash
drawer was owned by a Perkin’s restaurant, which is not a person.
In Minnesota, whoever takes “personal prop erty . . . in the presence of another and
uses . . . force against any person to overcome the person’s resistance . . . to . . . the taking
or carrying away of the property” is guilty of robbery. Minn. Stat. § 609.24. Recently, this
court held that personal property in the contex t of the robbery statute “means all property
that is not real property,” whether owned by a person or a business entity. State v. Bowen,
A17-0331, 2018 WL 1569778, at *7 (Minn. App. Apr. 2, 2018).
Consistent with our recent ruling in Bowen, we conclude that the cash drawer and
its contents are personal property as a matter of law, and there is su fficient evidence to
prove appellant took personal property.

7
III. The district court did not direct the jury’s verdict on the element of personal
property.

Appellant argues the district court’s jury instructions improperly directed a verdict
2
on the factual question of whether the cash drawer and its contents are personal property.
The district court gave the following jury instruction for simple robbery and the
element involving personal property:
First of all, as to simple r obbery. The statutes of Minnesota
provide that whoever, knowing he is not entitled to do so, takes
personal property from another, either from the person or in the
presence of the person. And us es force or the threat of
imminent force against any person to overcome resistance or
compel acquiescence in the taking or carrying away of property
is guilty of a crime.

The elements of simple robb ery—the elements of simple
robbery are:

First, the Defendant took a Pe rkin’s cash drawer and/or its
contents in the presence of on e or more Perkin’s employees
knowing that the Defendant wa s not entitled to take that
property.

The district court must provide instructions th at “fairly and adequately explain the law of
the case” and must not “materially misstate[] the applicable law.” State v. Koppi , 798
N.W.2d 358, 362 (Minn. 2011 ). Still, we “give district courts broad discretion and
considerable latitude in choosing the language of jury instructions” and will not reverse a
district court’s decision on jury instructions absent an abuse of discretion. State v. Milton,
821 N.W.2d 789, 805 (Minn. 2012) (quotations and citations omitted).

2 A district court may issue a directed verdict where there is insufficient evidence to present
a fact question to the jury. See State v. Poupard, 471 N.W.2d 686, 690 (Minn. App. 1991).

8
The district court did not direct the verd ict on the element of whether appellant took
personal property, because the cash drawer and its contents are personal property as a
matter of law. Bowen, 2018 WL 1569778, at *7. Inserting the words “Perkin’s cash drawer
and/or its contents” instead of the words “per sonal property” did not direct the verdict,
because the question of whether something is personal property is not a jury question. See
id.
Here, the district court did not direct the verdict as to whether appellant took
personal property, and its instructions are proper.
IV. The district court did not abuse its di scretion when it denied appellant’s
request to instruct the jury on lesser-included offenses.

Appellant requested that the district court al so instruct the jury on the offenses of
attempted robbery and theft, lesser-included offenses to the state’s charged offense of
robbery.
This court “review[s] the denial of a re quested lesser-included-offense instruction
for an abuse of discretion.” State v. Zumberge, 888 N.W.2d 688, 697 (Minn. 2017). “In
doing so, [the court] view[s] the evidence in the light most favorable to the party requesting
the instruction.” Id. A district court is required to include lesser-included-offense
instructions when: (1) the lesser offense is included in the charged offense; (2) the evidence
provides a rational basis for acquitting the defe ndant of the offense charged; and (3) the
evidence provides a rational basis for convic ting the defendant of the lesser-included
offense. Id. Reversal is only proper if the defendant can show prejudice, which is “when

9
the jury may have convicted the defendant of only the lesser offense had the lesser-
included-offense instruction been given.” Id. (quotations and citations omitted).
A lesser-included offense can be “[a]n attempt to commit the crime charged” or “[a]
crime necessarily proved if the crime charged were proved.” Minn. Stat. § 609.04, subd.
1(2), (4) (2016). Attempted robbery is therefore a lesser-i ncluded offense of robbery.
Theft involves the taking of another’s prop erty, and robbery invo lves the taking of
another’s property with the additional element of the threat or use of force. Compare Minn.
Stat. § 609.52 subd. 2(a)(1) (2016), with Minn. Stat. § 609.24. Likewise, the offense of
theft is a lesser-included offense of robbery. State v. Nunn , 351 N.W.2d 16, 19 (Minn.
App. 1984).
The parties agree that theft and attempte d robbery are lesser-included offenses of
robbery. A jury has a rationa l basis to acquit on the greate r offense and convict on the
lesser offense if proof of the elements that “differentiate the two crimes [is] sufficiently in
dispute so that a jury may make this distinction.” Bellcourt v. State, 390 N.W.2d 269, 273
(Minn. 1986). Here, the eviden ce, viewed in a light most favorable to appellant, is that
appellant fought with Perkin’s employees and Perkin’s cust omers who tried to stop him
from leaving the restaurant with stolen property. There is no evidence in the record that
contradicts this evidence. And, on appeal, appellant concedes that he continued to struggle
and kick as the Perkin’s employees and customers prevented him from leaving. Physically
struggling and kicking are uses of force that prove robbery. Once again, appellant argues
that he cannot be found guilty of robbery be cause he did not succeed in overcoming their
resistance. As discussed earlier, appellant’s reading of the statute is too narrow. The

10
evidence does not provide a rational basis for a jury to acquit appellant of robbery and
convict him of either lesser-included offense. The district court did not abuse its discretion
when it declined to instruct the jury on lesser-included offenses.
V. Circumstantial evidence is sufficient to prove that appellant knew or had
reason to know that the Dodge Journey was stolen.

There is no direct evidence appellant kne w or had reason to know that the Dodge
Journey was stolen. Appellant argues there was insufficient circum stantial evidence to
support his conviction of possession of stolen property.
Though a conviction based on circumstantial evidence merits higher scrutiny,
“circumstantial evidence is entitled to the same weight as direct evidence.” State v. Bauer,
598 N.W.2d 352, 370 (Minn. 1999). The circumstantial-evidence standard requires a two-
step analysis. State v. Silvernail, 831 N.W.2d 594, 598 (Minn. 2013). First, this court must
“identify the circumstances proved,” “defer to the jury’s acceptance of the proof of these
circumstances” and reject evidence conflicting with the circumstances proved by the state.
Id. at 598-99 (quotations omitted). Next, th is court must “det ermine whether the
circumstances proved are consistent with guilt and inconsistent with any rational
hypothesis except that of guilt.” Id. at 599 (quotations omitted).
A person is guilty of receiving stolen property if the person “possesses . . . any stolen
property . . . , knowing or having reason to know the property was stolen . . . .” Minn. Stat.
§ 609.53 subd. 1 (2016). Appellant claims that the state failed to pr ove that he knew or
had reason to know the property was stolen.

11
First, we identify the circumstances proved. Silvernail, 831 N.W.2d at 598-99. The
circumstances proved by the state relevant to appellant’s conduct include: (1) the Dodge
Journey was stolen from the driveway of K. S.’s parents’ house be tween the evening of
June 19th and the morning of June 20th; (2) a set of golf clubs was also stolen from the
house; (3) on July 2, a man drove a white SUV to a Walmart a half-mile from the Perkin’s
and smashed a car’s window; (4) someone drove the white Dodge Journey to the Perkin’s,3
and other cars at the Perkin’s had their windows smashed; (5) three sets of golf clubs were
found inside the Dodge Journey; (6) there was a broken golf club lying next to the Dodge
Journey; (7) a different broken golf club was found inside the Dodg e Journey; (8) items
taken from the vehicles at the Perkin’s were found inside the Dodge Journey; (9) the Dodge
Journey did not have license plates; (10) a 21-day temporar y sticker and repair invoice
made under a name other than appellant’s name were found inside the car; (11) appellant
robbed the Perkin’s after arri ving in the Dodge Journey; ( 12) no customers complained
about their cars being vandalized before appellant robbed the Perkin’s.
These circumstances demonstrate appellant knew or should have known the Dodge
Journey was stolen. First, the car had no license plates. The lack of license plates signals
that a car might be stolen, because thieves of ten remove a car’s license plates to hinder
identification of the stolen vehicle. Second, there was a repair invoice inside the car made
out to the true owner, who was a person unknown to appellant. Third, there were a number
of items that did not belong in the vehicle and should have raised appellant’s suspicion that

3 Appellant does not contend that the state failed to prove that he drove the vehicle.

12
the vehicle was stolen. There were three sets of golf clubs, a 21-day permit for a person
living in Brooklyn Park, and a number of belongings taken from the cars in the Walmart
and Perkin’s parking lots.
Appellant argues that he could have bo rrowed the car from someone so that he
would have no way of knowing that it was st olen. Given the circumstances proved, we
cannot agree. We cannot draw a rational alternative conclusion from these circumstances
other than that appellant knew or should have known the Dodge Journey was stolen when
he drove it. State v. Schnagel, 907 N.W.2d 188, 197 (Minn. App. 2017) (speculation is not
enough to support a proposed alternative hypothesis).
The jury heard the ev idence and weighed the credibility of the evidence as is its role.
See State v. Moore, 481 N.W.2d 355, 360 (Minn. 1992) (noting that the jury is in the best
position to determine credibility and weigh the evidence). “We will not overturn a
conviction based on circumst antial evidence on the basis of mere conjecture.” State v.
Lahue, 585 N.W.2d 785, 789 (Minn. 1998). Because the circumst ances proved are
consistent with guilt and inconsistent with any rational hypothesis except that of guilt, the
evidence is sufficient to support appellant’s conviction of possession of stolen property.
Affirmed.