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State v. Allen

Court of Appeals of Minnesota

November 25, 2013

State of Minnesota, Respondent,
v.
Thomas Daryl Allen, Appellant.

UNPUBLISHED OPINION

Mower County District Court File No. 50-CR-11-2198.

Lori Swanson, Attorney General, St. Paul, Minnesota; and Thomas C. Baudler, Austin City Attorney, Austin, Minnesota (for respondent)

Cathryn Middlebrook, Interim Chief Appellate Public Defender, Stephen L. Smith, Assistant Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Cleary, Chief Judge; Kirk, Judge; and Smith, Judge.

CLEARY, Chief Judge

Appellant challenges his conviction of misdemeanor theft in violation of Minn. Stat. § 609.52, subd. 2(1), (5)(iii) (2010), arguing that the evidence presented during the court trial was insufficient to support his conviction. Because the evidence presented by the state at trial was sufficient to permit the district court to find appellant guilty of theft, we affirm.

FACTS

Appellant Thomas Daryl Allen was cited for misdemeanor theft following events that occurred during a night in August 2011 after J.W. lost his cell phone. Those events were disputed during a court trial and continue to be disputed by the parties on appeal.

According to J.W. and his fiancée O.H., appellant called O.H. from J.W.'s phone to report that he had found the phone. O.H. testified that appellant told her to meet him at an area where several bars are located to get the phone back. She further testified that "there was no discussion of money over the phone." J.W. and O.H. picked up two friends on their way to meet appellant because they did not want to go to that area alone at night to meet someone whom they did not know.

J.W., O.H., and their friends arrived at the meeting location and found appellant outside of a bar. According to O.H., when she approached appellant, he "said that he wasn't going to give the phone back to us unless we gave him $20 for it." J.W. also testified that appellant "wanted $20 for the phone" and "just didn't want to give the phone up." Appellant took a phone out of his pocket and showed it to them, and J.W. and O.H. recognized it as J.W.'s missing phone. They refused to pay for the return of the phone. More friends of J.W. and O.H., who had been inside of a bar in the area, joined the group. A verbal argument began that involved the use of racial slurs. Some of the friends who were present at the time testified that appellant continued to demand $20 for the return of the phone.

According to O.H., appellant then walked around a corner of a building with the phone, a few of the friends followed him, and O.H. went to her vehicle and called the police. J.W. and O.H. did not see what happened to the phone. O.H. testified that an unidentified man who had been sitting nearby "mentioned that he had thought he [saw appellant] throw the phone over the fence." One of the friends who was present testified that he saw appellant "make a throwing motion" and was "pretty sure [that appellant threw] the phone over in the apartments across the street from the bar."

Appellant's version of the events of that night differs significantly from the version told by the state's witnesses. According to appellant, he found the phone in the middle of a street and, a few minutes later, it began to ring and he answered it. He testified that he spoke to O.H., said that he had found the phone, and agreed to give it back. He further testified that he asked, "Do you mind giving me a reward for it?" and that O.H. agreed to give him a reward of $20 and to meet him outside of a bar. But he testified that he was going to give the phone back regardless of whether he received a reward.

According to appellant, O.H. arrived at the bar with two vehicles full of people, and even more people emerged from the bar. He testified that he was surrounded by people before he could give O.H. the phone and that the situation got "heated" and a fight was about to break out. He stated that the police then arrived on the scene, the ...


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