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State v. Pirsig

October 28, 2003

STATE OF MINNESOTA, RESPONDENT,
v.
DAVID CHARLES PIRSIG, APPELLANT.



Gordon W. Shumaker, Judge Faribault County District Court File No. K50026

Considered and decided by Shumaker, Presiding Judge; Willis, Judge; and Stoneburner, Judge.

SYLLABUS BY THE COURT

A defendant has waived the right to be physically present in the courtroom when an alternate juror is substituted for a principal juror if jury deliberations have not yet begun, the defendant has consulted with his attorney and agreed to the substitution, has delegated authority to his attorney to agree to the substitution, and the attorney makes a record of the defendant's decision.

The opinion of the court was delivered by: Gordon W. Shumaker, Judge

Affirmed

OPINION

This case arises out of charges that appellant David Pirsig and his father, Edward Pirsig, stole grain from Paul and Charles More during 1996, 1997, and 1998. After a seven-day trial during April 2002, the jury found appellant guilty of two counts of theft of grain by swindle, over $35,000; 25 counts of theft of corporate property; and two counts of theft. Appellant now challenges the convictions, claiming that there was insufficient evidence to support them, the district court abused its discretion in admitting certain testimony on field maps, and the district court erred in substituting an alternate juror for a juror who became ill after the court released the jury to deliberate but before actual deliberations had commenced. Appellant also filed a pro se supplemental brief, claiming that the county attorney violated Minnesota Rules of Professional Conduct and Minn. Stat. §á388.08 (2002).

FACTS

Appellant David Pirsig and his father Edward Pirsig ceased their own farming operations because of financial problems. At the time, the Pirsigs were under contract to deliver a certain amount of grain to Peavey Elevators. Although the Pirsigs had some carry-over grain sales in early 1996, they were not able to complete their delivery obligation and Peavey cancelled the contract.

After the Pirsigs stopped their own farming operations, they entered into a seven-year custom-farming agreement with Paul and Charles More. The Mores were sellers of fertilizer, chemicals, and crop inputs to farmers in south-central Minnesota. In the early 1990s, the Pirsigs were among their customers.

In general, the custom-farming contract allowed the Pirsigs to continue to farm and to use their own equipment, but, because of the Pirsigs' financial status, the Mores paid the upfront costs of land rental and crop inputs and paid the Pirsigs by acreage and crop. The Pirsigs were required by their contract to cultivate the land and to plant, harvest, dry, store, and deliver the grain crop. Because the Pirsigs had an existing relationship with the landowners from whom they had leased land for their own operations, the Mores authorized them to sign leases for their custom farming. Under the contract with the Mores, the Pirsigs farmed approximately 2,800 acres from 1996 through 1998.

Despite the custom-farming contract between the Pirsigs and the Mores, it was not commonly known in the local agricultural community that the Mores were financing the Pirsigs' operations. Rather, many operators of agricultural businesses believed that the Pirsigs were continuing to do their own farming. For example, David Pirsig sold grain to Midwest Soya during the early 1990s and continued to sell grain to Midwest Soya from 1996 through 1998 under the name D&D Farms. The owner of Midwest Soya believed that David Pirsig was doing his own farming under that name. The Pirsigs did not report as income the payments for grain they sold to Midwest Soya but did deposit the receipts in a bank. This grain had test weights and moisture content consistent with the grain the Pirsigs delivered on behalf of the Mores.

To help manage their fields, in 1996 the Mores installed a grain monitor in the combine the Pirsigs used to harvest the grain under the custom-farming contract. The grain monitor uses a global positioning system (GPS) to collect data on specific field locations and crop yields for those locations. The data collected from the GPS monitor can be downloaded onto a Geographic Information System (GIS) software application. The GIS takes the location data from the GPS and overlays it onto a map that identifies certain correlations—such as soil types, combine swath width, and copy yields—for a particular field location.

In 1998, the Mores learned that they were short approximately 12,400 bushels of grain. Based on information from David Pirsig, they initially believed the shortage was caused by grain damage and was within an acceptable 10% margin of error based on a large grain yield. The Mores eventually began to suspect that the Pirsigs had stolen the grain.

The Mores collected the data from the combine's grain monitor and had it analyzed. The analysis showed that the monitor had been shut off at various times during combine use across various fields. The analysis also revealed that the swath-width setting on the monitor, registering the width of the stroke of the combine's cutting blade, had been changed at various times without a corresponding change to the actual width of the combine blade. ...


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