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This opinion will be unpublished and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
A19-0104

State of Minnesota,
Respondent,

vs.

Jessica Jo Huntington,
Appellant.

Filed March 9, 2020
Affirmed
Rodenberg, Judge

Stearns County District Court
File No. 73-CR-18-2527

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Renee N. Courtney, St. Cloud City Attorney, Stacy M. Lundeen, Assistant City Attorney,
St. Cloud, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Sean Michael McGuire, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Rodenberg, Presiding Judge; Jesson, Judge; and Smith,
Tracy M., Judge.
U N P U B L I S H E D O P I N I O N
RODENBERG, Judge
Appellant Jessica Huntington appeals from the district court’s final judgment of
conviction, arguing that her conviction of misdemeanor theft by swindle under Minn. Stat.

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§ 609.52, subd. 2(a)(4) (2016), must be reversed. Appellant argues (1) that the evidence is
insufficient to support her conviction and (2) th at her right to a fair trial was violated
because of trial errors. We affirm.
FACTS
Greg Stelten (Stelten) owns St. Cloud Sp rinkler Company (St. Cloud Sprinkler)
located in Waite Park. In Ma rch 2016, Stelten hired appellant as his office manager.
Appellant’s duties included paying bills, invoicing, and payroll. Stelten gave appellant
access to St. Cloud Sprinkler’s business checki ng account. Only appellant and Stelten
could access that account. In November 2016, appellant stopped working for St. Cloud
Sprinkler.
While going through St. Cloud Sprinkler’s books after appellant had ceased
working for the company, St elten noticed what he be lieved to be “mischievous
transactions,” including two payments to Montgomery Ward in December 2016 for $150
and $100. Neither St. Cloud Sprinkler nor Stelten in his individual capacity has a
Montgomery Ward account. Stelten contac ted Montgomery Ward and the Waite Park
Police about the concerning transactions.
Waite Park Police Officer Gangle investigated Stelten’s report. During the course
of his investigation, Officer Gangle attempted to meet with appellant. Appellant did not
show up for a scheduled appoin tment with Officer Gangle and later declined to speak to
him. Officer Gangle nevertheless deemed his investigation complete.
Appellant was charged with two counts of misdemeanor theft by swindle under
Minn. Stat. § 609.52, subd. 2(a)(4).

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At trial, Stelten testified that appellant was the only person other than himself who
had access to St. Cloud Sprinkler’s business account. Stelten explained that appellant had
permission to use the business account but was only to make payments related to St. Cloud
Sprinkler. Stelten denied that any of his accounts have ever been “hacked.”
Officer Gangle testified, over appellant’s objection, that after meeting with Stelten
to discuss the possibly fraudulent charges, he contacted Plaza Park Bank and Montgomery
Ward to confirm that the two “mischievous transactions” were on St. Cloud Sprinkler’s
business account. Officer Gangle testified, without objection, that a Montgomery Ward
employee told him that appellant tried to make payments on her Montgomery Ward
account using her own checking a ccount but that those payments were denied because of
insufficient funds.
Officer Gangle also testified, without obje ction, about his unsuccessful attempts to
meet or speak with appellant. Officer Ga ngle testified that, after completing his
investigation, he felt “it was pretty clear an d obvious” that appellant had used St. Cloud
Sprinkler’s business account to make payments on her Montgomery Ward account. He
concluded that appellan t later tried to cover up the paym ents made with the business
account by using her own checking account to pay back the money that she used.
A credit compliance specialist for the co mpany that provides credit collection
services to Montgomery Ward’s parent company testified about three trial exhibits which,
taken together, show that (1) on December 2, 2016, an automated clearing house (ACH)
1

1 An ACH payment is an electronic payment or e-check.

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payment was made from an account ending in 8901 for $150 on appellant’s Montgomery
Ward account and (2) on December 18, 2016, another ACH payment was made from an
account ending in 8901 for $100 on appellant’s Montgomery Ward account. Appellant’s
Montgomery Ward account was eventually sent to collections.
At the close of the state’s case, appellant moved for a judgment of acquittal. The
district court denied the motion.
Appellant testified at trial that she used the computer at St. Cloud Sprinkler for
work, but that she also used it for personal matters such as online shopping. Appellant
explained that, although she was never provided any direct instruction regarding the use of
the St. Cloud Sprinkler’s busin ess checking account, she “kno w[s] better than to make
payments on a personal account from a business account.” Appellant testified that Stelten
never asked her to make payments to a ny Montgomery Ward ac count from St. Cloud
Sprinkler’s business checking account.
Appellant confirmed that she had a Mont gomery Ward account , that the account
was past due, and that the account was sent to a collection agency with a balance of
$483.83. Appellant explaine d that the only payment th at she ever made on her
Montgomery Ward account was the initial $15 payment requir ed to open the account.
Appellant testified that she was never notifie d of a $150 or $100 payment being made on
her account, but she also conced ed that she rarely opened the monthly statements that
Montgomery Ward sent to her.

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Appellant explained that Officer Gangle contacted her about this case and that she
twice talked to him by phone. Appellant defended her decision not to provide a statement,
explaining that “[t]alking to him on the phone should have been sufficient.”
Appellant testified that a 2016 Yahoo data breach occurred which she believes
impacted Stelten’s business and personal accounts. Appellant explained that she provided
Stelten information concerning the data br each which advised Stelten to change his
passwords. Appellant testified that Stelten did not do so. Appellant argued to the jury that
this “hacking” accounts for the “mischievous transactions.”
The jury found appellant guilty of both counts of theft by swindle. The district court
sentenced appellant to a stayed sentence of 90 days in jail and ordered restitution.
This appeal followed.
D E C I S I O N
I. There is sufficient evidence to suppor t appellant’s conviction for misdemeanor
theft by swindle.

Appellant argues that the circumstantia l evidence presented by the state is
insufficient to prove either that a swindle occurred or that St. Cloud Sprinkler gave up any
property that appellant received by way of a swindle.
“When evaluating the sufficien cy of the evidence, we carefully examine the record
to determine whether the facts and the legitimate inferences drawn from them would permit
the factfinder to reasonably c onclude that the de fendant was guilty beyond a reasonable
doubt of the offense of which he was convicted.” State v. Waiters, 929 N.W.2d 895, 900
(Minn. 2019) (quotation and alteration omitted). Reviewing courts view the evidence “in

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the light most favorable to the verdict [and assume] that the fact-finder disbelieved any
evidence that conflicted with the verdict.” State v. Griffin, 887 N.W.2d 257, 263 (Minn.
2016) (citation omitted). “The verdict will not be overturned if the fact-finder, upon
application of the presumption of innocence and the State’s burden of proving an offense
beyond a reasonable doubt, co uld reasonably have found the defenda nt guilty of the
charged offense.” Id.
An offense may be proved using direct or circumstantial evidence. Circumstantial
evidence is “evidence fro m which the factfinder can infer whether the facts in dispute
existed or did not exist.” State v. Harris, 895 N.W.2d 592, 599 (Minn. 2017) (quotation
omitted).
When the state presents solely circumstan tial evidence on one or more elements of
an offense, we apply a circumstan tial-evidence standard of review. State v. Porte , 832
N.W.2d 303, 309 (Minn. App. 2013). The ci rcumstantial-evidence standard requires a
“review [of] the sufficiency of the evidence using a two-step analysis.” State v. Barshaw,
879 N.W.2d 356, 363 (Minn. 20 16) (citation omitted). The firs t step is to “identify the
circumstances proved, deferring to the f actfinder’s acceptance of proof of these
circumstances and rejection of evidence in the record that conflicted with the circumstances
proved by the State.” Id. (quotation omitted). The second step is to “independently
examine the reasonableness of all inferences that might be drawn from the circumstances
proved to determine whether the circumst ances proved are consistent with guilt and
inconsistent with any rational hypothesis of guilt.” Id. (quotation and alteration omitted).
“Circumstantial evidence must form a complete chain that, in view of the evidence as a

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whole, leads so directly to the guilt of the defendant as to exclude beyond a reasonable
doubt any reasonable infere nce other than guilt.” State v. Taylor , 650 N.W.2d 190, 206
(Minn. 2002).
At trial, the state needed to prove be yond a reasonable doubt that (1) St. Cloud
Sprinkler gave up possession of funds to appe llant because of the swindle; (2) appellant
intended to obtain for herself the possession of St. Cloud Sprinkler’s funds; (3) appellant’s
act was a swindle; and (4) appellant’s acts took place on or around December 6, 2016, and
December 20, 2016, in Waite Park. 10 Minnesota Practice, CRIMJIG 16.10 (2016).
A swindle is defined as “the cheating of another person by a deliberate artifice or
scheme” and “may include a trick or a scheme consisting of mere words and actions, and
it does not require the use of some mechanical or other device.” Id. It is not necessary that
St. Cloud Sprinkler have a “speci al confidence” in appellant. Id. A swindle “requires a
showing of affirmative fraudulent or deceitful behavior.” State v. Flicek, 657 N.W.2d 592,
598 (Minn. App. 2003). The concept of a swindle covers a range of criminal actions. See
State v. Ruffin, 158 N.W.2d 202, 205 (Minn. 1968) (explaining the “range of possibilities”
for offenses that constitute a swindle).
The first step of the circumstantial-ev idence test requires us to identify the
circumstances proved, giving deference to the fact-finder’s determinations. Barshaw, 879
N.W.2d at 363.
Deferring to the jury’s guilty verdict, the circumstance s proved at trial are that
appellant was employed as an office manager by St. Cloud Sprinkler from March 2016
through November 2016. Only appellant and Stelten had acce ss to St. Cloud Sprinkler’s

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business checking account. On December 2, 2016, a $150 payment was made to
appellant’s Montgomery Ward account from a checking account ending in 8901. On
December 18, 2016, a $100 payment was made to appellant’s Montgomery Ward account
from a checking account ending in 8901. St. Cloud Sprinkler’s business checking account
showed two payments made to Montgomery Ward in December 2016. St. Cloud Sprinkler
has never had a Montgomery Ward account, and it was never reimbursed for the payments
to Montgomery Ward. Appellant’s Montgomery Ward statement shows an ACH payment
on December 2, 2016, for $150 and another on December 18, 2016, for $100. Appellant
had a Montgomery Ward account while working at St. Cloud Sprinkler and at the time that
both the $150 and $100 payments were made. St. Cloud Sprinkler did not authorize any
payment to Montgomery Ward.
The second step of the circumstantial-evid ence test requires us to “independently
examine the reasonableness” of the inferences that may be drawn from the circumstances
proved. Id.
We first observe that appellant makes no argument that the jury instructions for theft
by swindle were incorrect. The definition of swindle is very broad and covers a wide range
of actions. Ruffin, 158 N.W.2d at 205. We cannot say, as a matter of law, that appellant’s
actions did not constitute a swindle. The jury found the elements to have been proved, and
the record supports that finding.
It is reasonably inferable from the eviden ce that appellant engaged in deceitful
behavior by using St. Cloud Sprinkler’s business checking account to make payments on
her personal Montgomery Ward account. It appears that appellant continue d to use

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St. Cloud Sprinkler’s account even after her employment had ended. Stelten testified that
the St. Cloud Sprinkler busin ess checking account records showed a $150 payment to
Montgomery Ward on December 6, 2016, and a $100 payment to Montgomery Ward on
December 20, 2016. Appellant’s account showed an ACH payment of $150 on
December 2, 2016, and another ACH payment of $100 on December 18, 2016. Appellant
is the only person involved with a Montgomery Ward account. A ppellant was the only
employee of St. Cloud Sprinkler other than Stelten who had access to St. Cloud Sprinkler’s
business checking account information. On this record, the only rational inference from
the circumstances proved is that appellant us ed a deliberate scheme to cheat St. Cloud
Sprinkler by unauthorized use of the busin ess checking account and thereby obtain its
money for her personal use. We cannot say that the jury’s verdict is unsupported on the
question of whether there was a swindle.
Concerning appellant’s se cond argument, it is reason ably inferable from the
evidence that appellant obtained St. Cloud Sprinkler’s funds by way of the swindle. Stelten
and the credit compliance specialist testifie d concerning the two payments made to
Montgomery Ward using what the jury reasonably inferred to be St. Cloud Sprinkler’s
business checking account. Stelten explained that the St. Cloud Sprinkler business account
records showed two payments made for $1 50 and $100 to Montgomery Ward. Stelten
testified that St. Cloud Sprinkler was never reimbursed for those amounts. 2 Appellant’s

2 The $100 ACH payment was re versed as an invalid payment. However, no testimony
was presented that the money was ever returned to St. Cloud Sprinkler’s bank account and
Stelten’s testimony indicates that the money was never returned.

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Montgomery Ward account showed two payments for $150 and $100 respectively within
days of the payments shown on St. Cloud Sprinkler’s business checking account.
At trial, appellant argued to the jury that St. Cloud Sprinkler’s accounts were
“hacked.” The jury’s guilty verdict reflects the jury’s rejection of appellant’s hacking
theory, and that theory is not a circumstance proved. What was proved is that St. Cloud
Sprinkler had two specific amounts of money missing from its business checking account
in December 2016 and appellant’s Montgome ry Ward account sh ows two payments
credited to it for the same two specific amounts of money around the same time in
December 2016.
The only rational inferen ce from these circumstances is that appellant used
St. Cloud Sprinkler’s business checking account to make pa yments on her own
Montgomery Ward account. Th e evidence, even though it is circumst antial, is sufficient
to support the jury’s verdict.
II. Appellant was not denied a fair trial because of trial errors.

Appellant argues that her right to a fair trial was violated because the state repeatedly
elicited improper testimony which the state then emphasized during its closing argument.
Appellant concedes that most of the te stimony that she now argues was improperly
received was not objected to at trial.
The evidentiary issues that appellant argues compromised her right to a fair trial are:
(1) hearsay testimony from Officer Gangle about his conversations with Plaza Park Bank
and Montgomery Ward employees, (2) testimony concerning appellant’s refusal to meet
with Officer Gangle, and (3) Officer Gangle’s testimony opining that appellant is guilty.

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“Evidentiary rulings are comm itted to the [district] c ourt’s discretion and will not
be reversed absent a clear abuse of discretion.” State v. Litzau , 650 N.W.2d 177, 182
(Minn. 2002) (citation omitted). “As a general rule, whe[n] a defendant fails to object to a
particular error at trial, the defendant is d eemed to have forfeited his right to have the
alleged error reviewed on appeal . . . .” Id.
Appellate courts will consider an issue no t raised before the district court if it
amounts to plain error. State v. Griller, 583 N.W.2d 736, 740 (M inn. 1998). “Under [a]
plain-error analysis, [appellant] is required to establish (1) an e rror, (2) that is plain, and
(3) that affects her substantial rights.” State v. Peltier, 874 N.W.2d 792, 799 (Minn. 2016).
“If these three prongs are met, the appellate court then assess whether it should address the
error to ensure fairness and the integrity of the judicial proceedings.” Griller, 583 N.W.2d
at 740. “An error is plain if it is clear or obvious, which is typically established if the error
contravenes case law, a rule, or a standard of conduct.” State v. Webster, 894 N.W.2d 782,
787 (Minn. 2017) (quotation omitted).
A. Hearsay testimony about Officer Gangle’s conversations with Plaza
Park Bank and Montgomery Ward employees

Appellant argues that Officer Gangle’s tes timony about conversations that he had
with unidentified Plaza Park Bank and Mont gomery Ward employees was improperly
admitted hearsay. Appellant objected at trial to the officer’s testim ony that he contacted
Plaza Park Bank and Montgomery Ward about the “mischievous transactions.” Appellant
did not object to the question of what the Montgomery Ward employee told him.

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Officer Gangle testified that Plaza Park Bank and Montgomery Ward employees
told him that St. Cloud Sprinkler’s busin ess checking account had charges on it from
Montgomery Ward. Officer Gangle further te stified that he was put in contact with
Montgomery Ward’s loss prevention company and “was told that [appellant] was trying to
make payments on that bill with her own checking account now, but they were denied” for
insufficient funds.
Plain error has limited application when hearsay testimony is admitted at trial. See
State v. Manthey, 711 N.W.2d 498, 504 (Minn. 2006). There are a multitude of exceptions
to the rule against hearsay. See Minn. R. Evid. 802, 803, 804 . “In the absence of an
objection, the state [is] not gi ven the opportunity to establis h that some or all of the
statements were admissible under one of the numerous exceptions to the hearsay rule.”
Manthey, 711 N.W.2d at 504.
Because Officer Gangle’s testimony went largely unobjected to, it is unknown
whether an exception to the rule against hearsay may have applied here. It is “particularly
important that a full discussion of ad missibility be conducted at trial[],” id., and without
such a discussion taking place, we are unab le to say that Officer Gangle’s hearsay
testimony was error that is plain. We cannot discern from this record whether the state had
other evidence on those topics that it opted not to produce because appellant did not object
to Officer Gangle’s hearsay testimony. And, as to the one hearsay objection the district
court overruled, we cannot say on this limited record that the district court abused its
discretion.

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Moreover, and even if it could be said that there was error that is plain, the admission
of the arguably hearsay testimony was harmless (regarding Officer Gangle’s testimony that
he spoke with Plaza Park Bank and Montgo mery Ward employees) and did not affect
appellant’s substantial rights.
B. Testimony concerning appellant’s ref usal to meet with Officer Gangle

Appellant argues that Officer Gangle’s testimony about appellant’s choice to remain
silent instead of giving “her side of the story” was improper and prejudicial.
Officer Gangle testified about appellant’s refusal to meet with him:
STATE: Did you attempt to contact [appellant]?
OFFICER GANGLE: I did. I called her and I explained to her
what was going on. I wanted to get her side of the story. She
said she would come into the police department and speak with
me the following day. She never showed up. I called her a
couple times. She said that—I told her I woul d like to do a
phone interview with her since she couldn’t come in. Every
time I contacted her, she was sick, or her kids were sick. She
couldn’t come in and wouldn’t talk to me.
STATE: Were you ever able to meet with [appellant]?
OFFICER GANGLE: No.
STATE: Did you make any attempts to go to [appellant]’s
home?
OFFICER GANGLE: Yes. I went there two or three times. I
don’t remember the exact number. No one answered the door.
I did speak with someone that lives there, a caretaker, and they
said she does live at that residence.
STATE: So fair to say you were never able to obtain a
statement from [appellant]?
OFFICER GANGLE: Correct.
. . . .

STATE: Based upon the results of your investigation, what
did you do next?
OFFICER GANGLE: After doing my investigation, I couldn’t
speak with [appellant] and get her side of the story. . . .

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In Jenkins v. Anderson , the Supreme Court held that impeachment with prearrest
silence does not violate either the Fifth or Fourteenth Amendments. 447 U.S. 231, 238-40,
100 S. Ct. 2124, 2129-30 (1980). However, Jus tice Stevens, concurring in the judgment,
explained his belief that “in determining wh ether the [Fifth Amendment] privilege is
applicable, the question is whether petitione r was in a position to have his testimony
compelled and then asserted his privilege , not simply whether he was silent.” Id. at 243-
44, 100 S. Ct. at 2132 (Stevens, J., concurring). The Minnesota Supreme Court has agreed
with Justice Steven’s analysis, holding “that if a defendant’s silence is not in response to a
choice compelled by the government to speak or remain silent, then testimony about the
defendant’s silence presents ‘a routine evidentiary question that turns on the probative
significance of that evidence.’” State v. Borg, 806 N.W.2d 535, 543 (Minn. 2011) (quoting
Jenkins, 447 at 244, 100 S. Ct. at 2132 (Stevens, J., concurring)).
As the supreme court has noted, when and how a prosecutor may elicit testimony of
prearrest silence is unsettled. State v. Jones , 753 N.W.2d 677, 688 (Minn. 2008). And
Borg did not definitively resolve this issue.3 Where the law is unsettled, any error cannot
be plain. State v. Ramey, 721 N.W.2d 294, 302 (Minn. 2006).
Although the state’s repeated emphasis of appellant’s having opted not to talk to
police—without some justification for that emphasis—appears troubling, we cannot say on
this record that there was error that is plain.

3 In Borg, there was one letter from law enforcement seeking an “interview appointment.”
806 N.W.2d at 543. Here, the evidence of compulsion exceeds that one letter.

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C. Officer Gangle’s testimony op ining that appellant was guilty

Appellant argues that Officer Gangle ga ve improper opinion testimony about the
conclusions of his investigation. The state ended its direct examination of Officer Gangle
with the following:
STATE: And what conclusion di d you make in regard to the
nature of the crime that [appe llant] committed, or that you
believe she committed?
OFFICER GANGLE: That she used Mr. Stelten’s business
account to pay for the items that she bought . And then later
she tried to cover it up by using her personal checking account
to pay back the charges so they were gone.

In its closing argument, the state refe renced Officer Gangle’s opinion testimony,
explaining that, “[b]ased upon the investiga tion, [Officer Gangle] was able to determine
that funds were used from Mr. Stelten’s business checking account, taken from there, and
applied to [appellant]’s Montgomery Ward ac count.” The state further argued that,
“[b]ased upon [Officer Gangle’s] investigation, [Officer Gangle] determined that a crime
had been committed.” The first of those comments is proper argument from the evidence.
The second comment is emphasis of improperly admitted opinion testimony on the ultimate
issue for the jury.
The admission of Officer Gangle’s testim ony opining that appellant was guilty is
troubling. But even if we were to conclude that this testimony am ounts to error that is
plain, appellant’s substantial rights were not impacted. First, the evidence against appellant
is very strong. Second, in the overall trial setting, where the jury had heard about Officer
Gangle’s investigation upon wh ich the state had charged appella nt with a crime, the jury
likely knew without being told that the officer had formed an opinion about whether

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appellant had committed a crime. Third, ne ither appellant’s silence nor Officer Gangle’s
opinion testimony had any bearing on appellant’ s defense at trial that the “mischievous
transactions” had resulted from St. Cloud Spri nkler’s accounts being “hacked.” The jury
rejected that far-fetched defense and surely would have regardless of Officer Gangle’s
testimony about appellant’s silence and his own opinions concerning the case.
Appellant has not shown any trial error that is plain and that affected her substantial
rights. We therefore affirm appellant’s conviction.
Affirmed.