State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-0257

State of Minnesota,
Respondent,

vs.

Phillip Wayne Stewart, II,
Appellant.

Filed December 31, 2018
Affirmed
Reyes, Judge

Hennepin County District Court
File No. 27-CR-17-7184

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

Michael O. Freeman, Hennepin County Attorney, Kelly O’Neill Moller, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Sara L. M artin, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Larkin, Presiding Judge; Connolly, J udge; and Reyes,
Judge.
U N P U B L I S H E D O P I N I O N
REYES, Judge
Appellant argues on appeal that the state produced insufficient evidence to support
his conviction of theft by swindle. We affirm.

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FACTS
J.G. frequently purchases cell phones off of Craigslist to sell to family and friends
when she visits them in Brazil. J.G. responded to an ad that a ppellant Phillip Wayne
Stewart II, had placed on Craigslist in which he offered to sell iPhones. They negotiated a
deal, and after driving from Duluth to meet appellant in Bloomington, J.G. purchased two
iPhones from him.
After J.G. left, appellant sent her a text message stating that i f s h e w a n t e d t o
purchase more iPhones from him, he could get more to sell her. She agreed to purchase
three more iPhones for $1,450 later that evening. After drivin g to Cloquet to meet her
husband to get additional cash, she returned to Bloomington that evening to meet appellant
for a second transaction. On the way back to Bloomington, she exchanged more text
messages with appellant in which they ultimately agreed that appellant would sell her six
more iPhones for $2,000.
When they met for the second time, J.G. handed appellant the mo ney, and he gave
her a bag that she believed contained the iPhones. As appellan t was leaving, J.G. noticed
that there were no iPhones in the bag; instead, the bag contain ed cleaning supplies and an
empty phone box. J.G. called the police and informed them of what had happened.

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Officers arrested appellant later that night. The next day, a n officer interviewed
appellant, and he admitted that, after he agreed to sell J.G. four additional iPhones,1 he took
$2,000 from her and, in exchange, gave her a bag that did not contain any iPhones.
The state charged appellant with one count of theft by swindle under Minn. Stat.
§ 609.52, subds. 2(a)(4) and 3(3)(a) (2016). 2 A jury found appellant guilty of theft by
swindle in an amount between $1,000 and $5,000. This appeal follows.
D E C I S I O N
Appellant argues that the state presented insufficient evidence at trial to prove that
he swindled J.G. because he did not have $2,000 on his person when officers arrested him
and officers did not seize the bag containing cleaning supplies f r o m J . G . W e a r e n o t
persuaded.
In considering a claim of insufficient evidence, a reviewing co urt will not disturb
the verdict if the jury, acting with due regard for the presump tion of innocence and the
requirement of proof beyond a re asonable doubt, could reasonabl y conclude that the
defendant was guilty of the charged offense. State v. Alton, 432 N.W.2d 754, 756 (Minn.
1 9 8 8 ) . A r e v i e w i n g c o u r t m u s t a s s u m e “ t h e j u r y b e l i e v e d t h e s tate’s witnesses and
disbelieved any evidence to the contrary.” State v. Moore, 438 N.W.2d 101, 108 (Minn.
1989). When reviewing a sufficiency-of-the-evidence claim, thi s court must resolve all

1 There appears to have been some confusion as to whether appell ant had agreed to sell
four or six additional iPhones. Nonetheless, appellant admitte d that he agreed to sell at
least four additional iPhones for $2,000.
2 The state also charged appellant with one count of damage to property pursuant to Minn.
Stat. § 609.595, subd. 1(1) (2016), but dismissed that count before trial.

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inconsistencies in the evidence in favor of the state. State v. Budreau, 641 N.W.2d 919,
929 (Minn. 2002).
When an element of an offense is supported by direct evidence, this court’s review
is limited to a painstaking analysis of the record to determine whether the evidence, when
viewed in the light most favorable to the verdict, is sufficient to support the jury’s verdict.
State v. Horst, 880 N.W.2d 24, 40 (Minn. 2016). A confession is direct evidence of guilt.
State v. Weber , 137 N.W.2d 527, 535 (Minn. 196 5). Evidence based on personal
knowledge or observation that, if true, proves a fact without i nference or presumption is
also direct evidence. Bernhardt v. State, 684 N.W.2d 465, 477 n.11 (Minn. 2004) (quoting
Black’s Law Dictionary 596 (8th ed. 2004)).
Under Minnesota law, a theft by swindle occurs when a person “b y artifice, trick,
device, or any other means, obtains property or services from another person.” Minn. Stat.
§ 609.52, subd. 2(a)(4). The statute punishes any wrongdoer wh o deprives the victim of
his money or property by deceit or betrayal of confidence. State v. Ruffin , 158 N.W.2d
202, 205 (Minn. 1968).
Here, the jury heard direct evidence in the form of J.G.’s testimony and a recording
of appellant’s interview, during which he admitted that he had negotiated a deal with J.G.,
in which he was going to sell four additional iPhones for $2,00 0. When asked what
happened, appellant said he “gave her the bag of accessories and stuff and she gave [him]
the two grand.” He said there were no iPhones in the bag but a cknowledged that there
should have been. When asked why he did it, he used the term “money hungry.” Appellant
informed the officer that the money was in his dresser drawer at home, which officers later

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seized. The jury also heard J.G.’s testimony that she had nego tiated a second deal with
appellant. She testified that when they met for the second time, she gave appellant $2,000
but did not receive the iPhones in exchange. This direct evide nce testimony is sufficient
to support the jury’s verdict.
Appellant urges this court to conclude that the jury should have believed his version
of events. But the jury heard appellant’s story when he testified at trial and rejected it. We
assume the jury believed the state’s witnesses and disbelieved appellant’s contrary version
of events. Furthermore, appellant’s own admission to police an d J.G.’s testimony
contradicted his trial testimony, and this court resolves all i nconsistencies in favor of the
state. Appellant’s argument fails.
Affirmed.