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This opinion will be unpublished and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
A17-1727

State of Minnesota,
Respondent,

vs.

Jennifer Susan Kline,
Appellant.

Filed December 3, 2018
Affirmed
Jesson, Judge

Hennepin County District Court
File No. 27-CR-16-8100

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

Michael O. Freeman, Hennepin Coun ty Attorney, Brittany D. Lawon n, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

William J. Mauzy, Casey T. Rundqu ist, Kaitlin M. Ek, Mauzy Law Office PA,
Minneapolis, Minnesota (for appellant)

Considered and decided by Bratv old, Presiding Judge; Worke, Ju dge; and Jesson,
Judge.
U N P U B L I S H E D O P I N I O N
JESSON, Judge
After obtaining refunds from Macy’s by returning designer clothing with tickets that
had been switched, appellant Jennifer Kline was convicted of th eft-by-swindle. She

2
challenges that conviction, argui ng that (1) the evidence is in sufficient to sustain her
conviction; (2) the district court abused its discretion by not allowing her to call an expert
witness to testify on clothing valuation; (3) she was entitled to a new trial based on the
state’s suppression of material exculpatory evidence; (4) the district court erred by denying
her request for a Franks hearing; and (5) the district court erred by submitting the question
of valuation to the jury as a spe cial interrogatory rather than requiring this finding as an
element of the offense. We affirm.
FACTS
A sales associate at the Macy’s Mall of America store (MOA Macy ’s) working on
November 11, 2015, notified the store’s asset-protection manage r about a high-dollar
return of designer clothing items. The asset-protection manage r watched a videotape of
the return with the district director of asset protection, and he identified appellant Jennifer
Kline as the person making the returns. The manager went to th e sales floor, observed
Kline and the returned items, and retrieved the clothing. He a lso personally saw Kline
make a second return in the store eleven minutes later on a different floor.
The return of expensive clothing did not end on November 11. T he manager later
learned that on November 30, Kline made additional returns at M OA Macy’s in two
different departments. That clot hing was likewise collected af ter the returns. Some of
those brands were not carried at MOA Macy’s, and the manager wa s able to verify that
some of the tickets did not match the items to which they were attached.
Macy’s became concerned that theft was occurring. The returned items were mostly
designer clothing, and MOA Macy’s does not generally carry designer items. Because the

3
items had been purchased at Southdale, Macy’s designer hub, the l e a d a s s e t - p r o t e c t i o n
detective at Macy’s Southdale store assisted in the internal investigation. She testified that
while in 2015, Macy’s had no time limit for returning merchandi se, a returned item was
required to be in saleable condition.
The asset-protection detective acc e s s e d s e c u r i t y v i d e o a n d i d e ntified Kline as
making purchases at Southdale in early November. She then phot ographed the returned
items and took their tickets to the sales floor, where she loca ted the items that actually
belonged with the tickets. Each ticket also had a customer return label, which she used to
access information on Macy’s comput er system and determine when each item had been
purchased and each ticket returned. If the detective could not find the correct item on the
floor, she found it in Macy’s product-information tool, another system where search criteria
can be used to locate a transaction. She found that 36 items h ad tickets attached that did
not match the merchandise returned and that Macy’s had given credit for those items in the
amount of $5,501.36. She reported this information to police.
An Edina police detective reviewed the information provided by Macy’s and
obtained a search warrant for Kline’s home. He swore in the af fidavit supporting the
warrant that Kline “made returns using low-end clothing items,” but he testified at trial that
he had only a suspicion that this was the case and that he was not a clothing expert.
When the detective executed the warrant, he brought along the M acy’s district and
regional directors of asset protection. He used the Macy’s pap e r w o r k f o r t h e m i s s i n g
clothing items to locate some of the clothing in Kline’s home. He also recovered a supply
of plastic clothing fasteners and a map with the locations of Southdale Mall and the MOA

4
marked on it. He then arrested Kline. He obtained a search warrant for Kline’s American
Express credit card history, which showed credit obtained from MOA Macy’s in the
amount of $1,937.61 on November 11 and $666.92 on November 30. On those days, Kline
also obtained additional credit from Macy’s on an EZ Exchange card.
The state charged Kline with one count of theft-by-swindle in excess of $5,000. See
Minn. Stat. § 609.52, subds. 2(a)(4), 3(2) (2014). Before trial, defense counsel argued that
Macy’s had not fully complied with discovery requests and had not responded to subpoenas
seeking documents, including a copy of Macy’s 2015 return polic y and Macy’s
product-information tool. The d efense requested a hearing to d etermine whether Macy’s
was a state actor for purposes of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963),
and whether the state had violated Minn. R. Crim. P. 9.01. Mac y’s counsel asserted that
Macy’s had fully complied with the most recent subpoena, and th ere were no further
documents to be found. The defen se also requested a hearing under Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674 (1978), arguing that the affidavit supporting the search-
warrant application had inaccurately alleged that designer clothing was switched for low-
end clothing. The district court denied the defense’s motions for Brady and Franks
hearings and ultimately determined that the state had complied with all discovery
requirements.
The defense additionally challenged the state’s objection to a proposed defense
expert witness, Paul Walsh, a forensic accountant who had calculated a discounted rate for
the items returned by Kline and was prepared to testify that they were worth less than the
total amount Kline was refunded. The district court granted th e state’s motion to exclude

5
testimony from Walsh as an expert witness in part on the basis that he was not an expert
on clothing valuation, but also because his testimony would not be helpful to the jury since
the value of the returned clothing was irrelevant under State v. Ulvestad, 414 N.W.2d 737
(Minn. App. 1987), review denied (Minn. Jan. 15, 1988), and State v. Lone , 361
N.W.2d 854 (Minn. 1985).
Kline testified at trial. She explained that she worked as a fashion, beauty, and style
expert on a home shopping network and was required to bring in a large number of clothing
items for on-air presentations. She testified that she had the habit of purchasing items at
Macy’s and returning items that she did not wear on the show. Kline stated that because
she was instructed that she could not go on the air with any ta gs on clothing, she would
remove the tags at home and place them in a bag. When the show ended, she would put
all the clothes in her car trunk and return them to Macy’s. She admitted that she removed
the original tickets from clothing and then reattached tickets with plastic fasteners that she
had bought for a garage sale, selecting tickets that “seemed li ke a reasonable match” for
the items.
Kline testified that she did not buy high-end clothes and retur n low-end clothes or
sew different labels into the c lothes, and that she thought she w a s h e l p i n g M a c y ’ s b y
reticketing the items. She stated that she did not intend to defraud Macy’s or cause Macy’s
any loss. Finally, Kline indicated that in November 2015, she had a high level of personal
stress because of family issues, and she returned items at the Mall of America because it
was convenient for trips she had to make to the airport.

6
The jury found Kline guilty of theft-by-swindle. The jury also found by special
interrogatory that the value of the property was more than $1,000 but not more than $5,000.
The district court convicted Kline and stayed imposition of a sentence for two years, with
ten days in jail served on sentence-to-service.
This appeal follows.
D E C I S I O N
At the outset, we note that Kline’s challenge to her conviction rests largely on her
arguments regarding the value of the returned items. She contends that the state failed to
prove her receipt of refunds greater than the actual value of the property returned, which is
relevant to the issue of intent, and that the value of the property she received did not exceed
$1,000. We address these arguments and related expert and discovery issues and conclude
that the evidence is sufficient to support her conviction, that any error in excluding expert
testimony or addressing discovery violations was not prejudicial, and that the district court
did not err by declining to conduct a Franks hearing or submitting the issue of value to the
jury by special interrogatory. Central to our analysis is the principle that under Minnesota
law, a conviction of theft-by-swindle does not require proof that the value of the property
given up by swindle is greater than that received by the victim. See Lone, 361 N.W.2d at
860; Ulvestad, 414 N.W.2d at 739.
I. The evidence sufficiently sustains Kline’s conviction of theft-by-swindle of
over $1,000.

Kline challenges the sufficiency of the evidence to support her conviction of
theft-by-swindle. A person may be convicted of theft-by-swindl e if he or she “obtains

7
property or services from another person” by an act of swindling, whether by artifice, trick,
device, or any other means. Minn. Stat. § 609.52, subd. 2(a)(4). In essence, the swindling
statute punishes any fraudulent trick, scheme, or device by which a wrongdoer deprives the
victim of property or money by deceit or betrayal of confidence . State v. Hanson ,
285 N.W.2d 483, 486 (Minn. 1979).
When reviewing the sufficiency of the evidence to support a conviction, an appellate
court’s review is limited to a thorough analysis of the record to determine whether the
evidence, when viewed in the light most favorable to the convic tion, was sufficient to
permit the jury to reach its verdict. State v. Webb , 440 N.W.2d 426, 430 (Minn. 1989).
This court must determine whethe r legitimate inferences drawn f rom the record would
allow a fact-finder to conclude t hat the defendant was guilty b eyond a reasonable doubt.
State v. Pratt, 813 N.W.2d 868, 874 (Minn. 2012). We will uphold the verdict if the jury,
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).
In reviewing a conviction based on circumstantial evidence, we apply a two-step
analysis. State v. Fox , 868 N.W.2d 206, 223 (Minn. 2015). We first identify the
circumstances proved, deferring to the jury’s acceptance of pro of of those circumstances
and its rejection of contrary evidence. Id. We then independently examine the reasonable
inferences that could be drawn from the circumstances proved. Id. In order to sustain a
conviction based on circumstantial evidence, the reasonable inferences that may be drawn

8
from the circumstances proved as a whole must be consistent with a hypothesis of guilt and
inconsistent with any rational hypothesis other than guilt. Id.
Here, the state proved circumst ances that Kline returned 36 ite ms of designer
clothing to Macy’s, that the tickets on the returned items were incorrect, and that she
received credit back for the merchandise. Kline did not disput e she removed the original
tickets herself and attached the incorrect tickets. But she ar gues that the state failed to
prove that the value of the items returned was less than their actual value or that the
property’s valuation met statutory limits. She also argues that the circumstantial evidence
is insufficient to show that she intended to deprive Macy’s of any property or that Macy’s
relied on her representations of the property when issuing the refunds. We address each
issue in turn.
Difference in value between property taken and property received by victim
Kline argues that Macy’s was not deprived of property by swindle because there is
insufficient evidence that by attaching the wrong tickets to the clothing items, she received
a greater refund than she would have if the tickets had been correct. But under Minnesota
law, a swindle focuses on the taking of a victim’s property by deceit or betrayal of
confidence, Hanson, 285 N.W.2d at 486, and there is no requirement that the value of the
property received by the victim must be less than the value of the property given up to the
swindler. See Ulvestad, 414 N.W.2d at 739. Thus, “[i]n theft by swindle, value becom es
irrelevant.” Lone, 361 N.W.2d at 860. As the Minnesota Supreme Court quoted Jud ge
Learned Hand,

9
“[a] man is none the less cheated out of his property, when he
is induced to part with it by fraud, because he gets a quid pro
quo of equal value. It may be impossible to measure his loss
by the gross scales available to a court, but he has suffered a
wrong; he has lost his chance to bargain with the facts before
him. That is the evil against which the statute is directed.”

Id. (quoting United States v. Rowe, 56 F.2d 747, 749 (2d Cir. 1932)).
Following this reasoning, in Lone, the supreme court held that a defendant’s
conduct in selling basement waterproofing supported a convictio n of theft-by-swindle,
even though the victims received something of value for their m oney. Id. In Ulvestad,
we similarly held that in a pro secution for theft-by-swindle by alteration of odometer
readings of used cars, the actual value of the cars was irrelev ant, expressly rejecting a
balancing test by which the jury would ‘“consider what the victims gave up in relation to
what it was they received.”’ Ulvestad, 414 N.W.2d at 739 (quoting Lone, 361 N.W.2d at
860). Therefore, because it is possible to have a conviction f or theft-by-swindle even if
there is no net loss to the victim, see id., the state was not required to show that Macy’s
suffered a net loss resulting from Kline’s actions.
Value of property taken
For sentencing on Kline’s conviction of theft-by-swindle, the state was required to
establish the value of the property or services obtained from Macy’s within statutory limits.
See Minn. Stat. § 609.52, subd. 3 (2014) (listing statutory maximum penalties for different
categories of theft). By special interrogatory, the jury found that the value of the property

10
stolen was “more than $1,000 but not more than $5,000.” See Minn. Stat. § 609.52,
subd. 3(3)(a).1
Kline argues, however, that because the state did not prove that Macy’s relinquished
any property in reliance on the swindle or that Macy’s provided a g reater refund than it
would have without the incorrect tickets, the state failed to e stablish that the value of the
property exceeded $1,000. We reject these theories. The distr ict director of asset
protection testified that Kline returned 36 misticketed items and was credited $5,501.36 in
exchange for those items, which the director characterized as a “very large loss to the
company.” The record thus contains evidence by which the jury could have found that the
value of the property obtained from Macy’s exceeded the $1,000 statutory threshold. See
id. Kline’s American Express card alone reflected that she received combined credit from
Macy’s of $2,604.53 dating from November 11 and November 30. The evidence supports
the jury’s finding that value of the property swindled was between $1,000 and $5,000.
Intent
“[T]he essence of a swindle is d efrauding another person by an intentional
misrepresentation or scheme.” State v. Flicek, 657 N.W.2d 592, 598 (Minn. App. 2003).
Intent is generally proved by c ircumstantial evidence, and juri e s m a y i n f e r i n t e n t b y

1 We note that we do not review an element of the crime under the circumstantial-evidence
standard when the jury is presented with direct evidence of that element. See State v. Horst,
880 N.W.2d 24, 39-40 (Minn. 2016). Here, the state presented direct evidence of the value
of the clothing. Therefore, we review that element under the traditional standard. See id.

11
considering a defendant’s actions or words in light of all surr ounding circumstances.
State v. Thompson, 544 N.W.2d 8, 11 (Minn. 1996).
Here, the jury rejected Kline’s di rect testimony that she did n ot intend to deprive
Macy’s of any property. To the extent that proof of this eleme nt also rests on
circumstantial evidence, we exam ine the circumstances proved, d eferring to the jury’s
acceptance of proof of those circumstances. Fox, 868 N.W.2d at 223. We then
independently review the reasonable inferences that may be draw n from those
circumstances and examine whethe r they are consistent with a hy pothesis of guilt and
inconsistent with any rational hypothesis other than guilt. Id.
Kline argues that the circumstan tial evidence is insufficient t o prove that she
intended to defraud Macy’s. The circumstances proved with respect to her intent include:
her admission that she attached some incorrect tickets to cloth ing; her possession of a
large supply of plastic fasteners that she used to attach those tickets; her purchase of
designer clothing at one Macy’s store, but returning that cloth ing to a store across town
that did not carry those lines; and her possession of a map showing the locations of both
stores. Kline testified that she was only attaching tickets to the returned clothing to help
out the associates, and she did not intend to deceive Macy’s. But these circumstances
proved support a reasonable inference that Kline had an intent to deceive Macy’s and
obtain property by “an intentional misrepresentation or scheme.” Flicek, 657 N.W.2d at
598; See Minn. Stat. § 609.52, subd. 2(a)(4). In light of the circumstances proved, Kline’s
alternative hypothesis on the issue of intent, that she made a mistake, is not reasonable.

12
No reliance
Kline argues that the state did not prove beyond a reasonable d oubt that Macy’s
issued refunds to her based on her submission of incorrectly ticketed items for return. The
state must prove that the victim surrendered money or property due to the swindle. Pratt,
813 N.W.2d at 873. In other words, it must be shown that the victim relied on the acts of
the defendant to surrender property. Id. It is not necessary that the victim place special
confidence in the accused; rather, it is sufficient that, in obtaining the victim’s property or
services, a method is “used to dispel the victim’s normal suspi cion or caution.” State v.
Cunningham, 99 N.W.2d 908, 914 (Minn. 1959).
Here, the circumstances proved in clude that Macy’s sales associ ates accepted the
items for return when those items had the wrong tickets attached. Kline maintains that in
light of Macy’s liberal return policy at that time, a reasonabl e hypothesis exists that
Macy’s would have accep ted the returns and issued refunds, even without any tickets,
unless the merchandise was not from Macy’s or it was not saleab le. But we cannot
conclude that such a hypothesis is reasonable in light of Kline’s large returns of designer
clothing. Rather, the only reasonable hypothesis, which is con sistent with Kline’s guilt,
is that the associates who processed the returns of relatively high end, designer clothing,
relied on the tickets that Kline had attached to the clothing i n order to accept it and give
Kline a corresponding amount of credit. This is supported by Macy’s return policy, which
gave discretion to associates to deny items for return. See Pratt , 813 N.W.2d at 875
(concluding that in conviction fo r swindle by falsifying mortga ge loan documents, the
only reasonable inference to be drawn from uncontradicted evidence was that the lenders

13
relied on that false information to decide on making loans). Therefore, we reject Kline’s
argument on this point.
Because the record contains suffi cient evidence from which the jury could have
found that Kline committed a swin dle and that the value of the property taken from
Macy’s was over $1,000, and the circumstantial evidence suffici ently supports the
elements of reliance and intent, the evidence is s ufficient to support Kline’s conviction
of theft-by-swindle.
II. Any error in excluding expert te stimony from a forensic account ant on
behalf of the defense did not prejudice Kline.

Kline argues that the district court abused its discretion by excluding testimony from
her proffered expert, Paul Walsh, a forensic accountant. This court reviews a district
court’s evidentiary rulings, in cluding the admissibility of exp ert testimony, for an abuse
of discretion. State v. Hall, 406 N.W.2d 503, 505 (Minn. 1987). A party challenging an
evidentiary ruling “has the burden of establishing that the [di strict] court abused its
discretion and that [that party] was thereby prejudiced.” State v. Amos, 658 N.W.2d 201,
203 (Minn. 2003).
Expert testimony may be admitted if it assists the trier of fact to determine a fact in
issue or to understand the evidence. Minn. R. Evid. 702. A person may be qualified as an
expert by knowledge, education, skill, or experience. Id. “The basic requirement of
Rule 702 is the helpfulness requirement,” and proposed expert testimony meets this test if
it explains a fact or conclusion that is outside the jury’s common knowledge or experience.
State v. Helterbridle, 301 N.W.2d 545, 547 (Minn. 1980).

14
The defense proposed to have its expert, Walsh, testify as to t he value of the items
returned, applying a discount from the manufacturer’s suggested retail price, which would
show that the actual value of the clothing items was only slightly less than the total refund
that Kline received. And Kline argues that this would tend to negate an inference of intent.
The district court, however, noted that in a case of theft-by-swindle, valuation is irrelevant,
citing Ulvestad, 414 N.W.2d at 740. And the district court ruled that Walsh c ould not
testify as an expert because he was not an expert on clothing v aluation or clothing itself,
and his testimony would be based only on internet research.
The district court is correct. The difference in value between the property returned
and the amount Kline was refunded is immaterial in a case of th eft-by-swindle. See
Ulvestad, 414 N.W.2d AT 740. But even if we were to agree with Kline t hat Walsh’s
proposed testimony had foundational reliability and relevance, any error in failing to admit
Walsh’s testimony was harmless. See State v. Bird, 734 N.W.2d 664, 672 (Minn. 2007).
“Reversal is warranted only when the error substantially influe nces the jury’s decision.”
State v. Nunn , 561 N.W.2d 902, 907 (Minn. 1997). Based on the records from Kline’s
American Express account, the jur y could have reasonably inferr ed, even without expert
testimony, that the value of the returned items was at least $1,000.
Kline further contends that beca use the district court admitted testimony from
Macy’s loss prevention personnel, she should have been allowed to present similar
testimony to support her defense. She maintains that because Walsh’s proposed testimony
was highly relevant and no other evidence would serve the same purpose, its exclusion
violated her right to present a complete defense. See State v. Beecroft, 813 N.W.2d 814,

15
839 (Minn. 2012) (stating that if fact-finders are exposed to o pinions of the state’s expert
witnesses, a defendant must be provided with an equal opportunity to present the opposing
views of the defendant’s expert). But as discussed above, the jury had ample additional
evidence by which to evaluate the value of the property returne d. Thus, any error in
denying Walsh’s testimony as an expert was harmless beyond a re asonable doubt. See
State v. Post , 512 N.W.2d 99, 102 (Minn. 1994) (stating that standard for co nstitutional
error).
III. The district court did not abuse its discretion by failing to order discovery
of Macy’s product-information tool.

Kline argues that she is entitled to a new trial because the state suppressed material
exculpatory information by failin g to disclose Macy’s product-i nformation tool to the
defense. If the state possesses material evidence favorable to the defense in a criminal
case, failure to disclose that information to the defense is a violation of due process. Brady,
373 U.S. at 87, 83 S. Ct. at 1196-97. And under the Minnesota Rules of Criminal
Procedure, prosecutors must disc lose “[m]aterial or information in the prosecutor’s
possession and control that tends to negate or reduce the defen dant’s guilt.”
Minn. R. Crim. P. 9.01, subd. 1(6). This court examines whether the district court erred by
failing to order a hearing to consider Kline’s arguments under Brady and rule 9.01.
Cf. State v. Burrell, 697 N.W.2d 579, 605) (Minn. 2005) (concluding that the district court
erred by failing to perform in camera review when the defendant requested discovery
surrounding plea negotiations plausibly implicating Brady). The district court has “wide
discretion to issue discovery orders,” and an order will generally not be overturned absent

16
an abuse of discretion. State v. Underdahl, 767 N.W.2d 677, 684 (Minn. 2009) (quotation
omitted).
“There is no general constitutional right to discovery in a criminal case, and Brady
did not create one . . . .” Weatherford v. Bursey, 429 U.S. 545, 559, 97 S. Ct. 837, 846
(1977). Here, where there was no e vide nc e of delibe rate misrepresentation, we cannot
conclude that the state’s failure to disclose Macy’s product-in formation tool warranted a
hearing under Brady as a constitutional issue. See id. at 559-60, 97 S. Ct. at 846.
The Minnesota rules of discovery, however, are broader than the federal rules
relating to discovery issues and require “open-file discovery” in criminal cases.
State v. Kaiser, 486 N.W.2d 384, 386-87 (Minn. 1992); See Minn. R. Crim. P. 9.01-.02.
“The[se] rules are intended to give the parties complete discovery subject to constitutional
limitations.” Minn. R. Crim. P. 9, cmt. The Minnesota rules p rovide for discovery of all
written or recorded statements, as well as written summaries of oral statements, which are
known to the prosecutor. Minn. R. Crim. P. 9.01, subd. 1(2)(a), (b). The prosecutor must
also disclose material in the possession of “others who have pa rticipated in the
investigation or evaluation of the case and who either regularly report, or with reference to
the particular case have reported, to the prosecutor’s office.” Id., subd. 1a(1). And on a
defense motion, the district cour t may at its discretion order disclosure of other relevant
material that may relate to the guilt or innocence of the defendant. Id., subd. 2(3).
Here, the district court ruled that Kline was not entitled to a discovery hearing
because Macy’s was not a state actor. See Beecroft, 813 N.W.2d at 837 (noting that alleged
violations of a criminal defenda nt’s right to due process may b e implicated by “private

17
c o n d u c t [ o n l y ] i f t h e c o n d u c t i s s u f f i c i e n t l y e n t w i n e d w i t h g o vernmental character”
(quotation omitted)). The district court directed the state to disclose the names of witnesses
and other persons with informati on relating to the case, as wel l as any written statements
and written summaries of oral statements, but did not address t he disclosure of Macy’s
product-information tool.
We agree that in determining whether to order discovery, the di strict court should
have analyzed whether the product- information tool was relevant and exculpatory to
Kline’s defense. See Minn. R. Crim. P. 9.01, subd. 2(3). However, we cannot conclud e
that under these circumstances, the district court abused its discretion by declining to order
discovery of the product-information tool. Kline argues that t he tool was relevant and
related to her guilt because it would have shown that the returned items came from Macy’s
and the value of the property returned. But she admitted that she purchased the items from
Macy’s, and their value was established by the amount of the re fund she received. And
although the Southdale asset-prot ection detective testified tha t she sometimes used the
product-information tool to locate the correct clothing item matching the tickets that Kline
had attached to the wrong items, Kline acknowledged that she had switched tickets on the
items. Therefore, Kline has faile d to show how the product-inf ormation tool would have
assisted her in challenging these elements of the state’s case. See, e.g., State v. Underdahl,
767 N.W.2d 677, 687 (Minn. 2009) ( concluding that, when a defen dant challenged the
validity of an Intoxilyzer machine, the district court abused i ts discretion in finding that
source-code information from the machine was relevant where the defendant made no
showing that the information would assist him in disputing the charges against him).

18
IV. The district court did not err by denying a Franks hearing on the validity
of the search warrant.

Kline challenges the denial of her motion for a hearing to chal lenge the search
warrant under Franks v. Delaware , 438 U.S. 154, 98 S. Ct. 2674 (1978). If a
search-warrant application contains intentional or reckless mis representations of fact that
are material to probable cause, the search warrant is void, and evidence resulting from the
search must be suppressed. State v. Moore, 438 N.W.2d 101, 105 (Minn. 1989). The U.S.
Supreme Court in Franks s e t s f o r t h a t w o - p r o n g e d t e s t for invalidating a warrant: the
defendant must show both that t he person submitting the support ing affidavit
(1) deliberately made a false statement or one in reckless disregard of the truth, and (2) that
the statement was material to the determination of probable cau se. State v. Andersen ,
784 N.W.2d 320, 327 (Minn. 2010) (citing Franks, 438 U.S. at 171-72, 98 S. Ct. at
2684-85). A misrepresentation is material if, when it is set aside, probable cause no longer
exists to issue the warrant. Moore, 438 N.W.2d at 105. And “[t]o mandate an evidentiary
hearing, the challengers attack m ust [contain] allegations of d eliberate falsehood or of
reckless disregard for the truth, and [they] must be accompanied by an offer of proof . . . .
Allegations of negligence or innocent mistake are insufficient.” Franks, 438 U.S. at 171,
98 S. Ct. at 2684.
Here, the search warrant affidavit contained information from t he Edina police
report that (1) Kline purchased over 36 designer clothing items from Macy’s in early
November 2015; (2) on two later d ates in November, she “made re turns using other low
end clothing items with Macy’s r eceipts” and received credit ba ck; (3) Macy’s verified

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“that 36 returned items were not the designer items purchased,” resulting in a loss to
Macy’s; (4) Kline used different stores for her purchases and returns, including purchasing
designer items at the Southdale Macy’s and returning them to other stores that did not carry
the designer brands; and (5) Kline “would place the tags of the higher end items she had
purchased on lower quality items before returning them.”
Kline argues that the district court erred by denying a Franks hearing because the
evidence shows that she returned only designer items for other designer items, and the
officer was deliberately misrepresenting that she was returning lower-end items to Macy’s.
Therefore, she argues, there was insufficient probable cause to issue the warrant. In its
order denying a Franks hearing, the district court fou nd that, although the affidavit
describes “low end” clothing items being returned in place of “designer” items purchased,
the affidavit was not clear whe ther “the affiant officer meant switching tags to different
brands or switching tags to lower-priced items.” We agree that this language is ambiguous.
But in view of the other facts in the affidavit, this assertion was not material to the issuance
of the warrant. Further, based on the confusing language in th e warrant, we cannot
conclude that the district cour t erred by determining that any misrepresentations in the
affidavit were only negligent, and a Franks hearing was not required. See id.
V. The district court did not err by submitting the issue of the v alue of the
swindled property to the jury by special interrogatory.

Kline maintains that the district court erred by instructing the jury to make its finding
on the value of the property by special interrogatory, rather t han requiring the jury to
determine value separately as an element of the crime charged. “[T]his court applies an

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abuse-of-discretion standard of review to a district court’s ju ry instructions.”
State v. Bowen, 910 N.W.2d 39, 49 (Minn. App. 2018). In so doing, we review the
instructions as a whole and determine whether they accurately s tate the law in a manner
that the jury can understand. Id. If the instructions fairly and adequately explain the law
of the case and do not materially misstate the law, no error has occurred. Id.
At the end of trial, the defense requested bifurcated deliberat ion under the court’s
inherent power, asking the court to instruct the jury to determ ine first whether Kline was
guilty, and then to determine the value of the property as a sentencing issue. The defense
noted that a finding of a value of over $5,000 increases the statutory maximum penalty for
the offense. See Minn. Stat. § 609.52, subd. 3(2). The district court denied th e request,
stating that its instruction would “make very clear that th[e] question [of value] is only to
be considered if she’s found guilty.”
The district court then instructed the jury:
If you find Ms. Kline is guilty, you have an additional issue to
determine, and it will be put to you in the form of a question
that will appear on a special verdict form. Was the value of the
money or property more than $5,000? Was the value of the
money or property more than $1,000 but not more than $5,000?
Was the value of the money or property more than $500 but
not more than $1,000? Was the value of the money or property
not more than $500?

If you find Ms. Kline guilty, you will answer one of the
questions “yes.” If you should have a reasonable doubt as to
the value of the money or property, you should answer “yes”
to [the] lesser of the values you believe it had. The value of
the money or property is the retail market value at the time of
the taking. So you must answer the questions regarding value
either “yes” or “no.” If you ha ve reasonable doubt as to your
answer, then you should answer the question “no.”

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It then submitted to the jury a verdict form on which the jury could indicate a verdict of
guilty or not guilty and then circle “yes” or “no” on additional special verdict questions on
the value of the property.
Kline argues that the district court’s instruction did not allo w the jury to find no
value for the property and therefore, to acquit Kline. But the district court made it clear
that the jury was to address the property’s value separately an d only if it had first found
Kline guilty of theft-by-swindle, and it directed the jury to d etermine separately whether
reasonable doubt existed as to the value of the property. The district court did not err by
submitting the issue of property valuation to the jury by special interrogatory.2
VI. Reversal is not required based on cumulative error.

Kline argues that the cumulative effect of the district court’s errors denied her a fair
trial. In rare cases, an appellant may be entitled to a new tr ial when “errors, when taken
cumulatively, have the effect of denying [the defendant] a fair trial.” State v. Fraga ,
898 N.W.2d 263, 278 (Minn. 2017) (quotation omitted). When add ressing a claim of
cumulative error, we examine the egregiousness of the errors and the strength of the state’s
case. Id. Kline reiterates her previous assertions of error and maintains that, taken together,
they denied her a fair trial. We disagree. Reversals that are based on cumulative error
generally involve serious errors, where there is weak evidence of the defendant’s guilt.
State v. Cermak, 350 N.W.2d 328, 333-34 (Minn. 1984). The evidence against Kline was

2 We also reject Kline’s additional argument, made in passing, that the jury’s special verdict
was akin to a compromise verdict in a civil case.

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strong, and none of the errors she has alleged, either separate ly or together, affected the
jury’s verdict in this case. See Fraga, 898 N.W.2d at 278 (concluding that errors when
viewed either individually or together did not affect the verdict).
Affirmed.