Opinion
No. A03-611.
Filed July 13, 2004.
Appeal from the District Court, Carver County, File No. T402004104.
Loren Veltkamp, (pro se appellant)
Mike Hatch, Attorney General, and Michael A. Fahey, Carver County Attorney, Mary E. Shimshak, Assistant County Attorney, and Elliott B. Knetsch, Brendan J. Flaherty, Campbell Knutson, P.A., (for respondent)
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2002).
UNPUBLISHED OPINION
Appellant Loren Veltkamp challenges his conviction of fifth-degree assault, arguing that he was performing a citizen's arrest for swindle when he grabbed the arm of a former tenant who owed him money, and is, therefore, immune from liability for fifth-degree assault. We affirm.
FACTS
Appellant obtained a civil default judgment against Denise Cassidy, a former tenant, for unpaid rent. Twenty-seven days after this judgment was docketed, appellant, who was on a motorcycle, saw Cassidy walking in Chanhassen at around 7:30 p.m. Appellant approached her to get her address. Appellant testified that Cassidy agreed that he could follow her home to get her address. Cassidy testified that appellant told her he was going to follow her home. Cassidy began to walk evasively.
At some point, appellant's passenger got off of the motorcycle and called the police, who did not respond. Appellant continued to follow Cassidy, first on his motorcycle and then on foot. Cassidy testified that appellant told her that there was a bench warrant for her arrest and that she had "stolen some things from him." Appellant testified that he told Cassidy: "If you keep walking like this I'm making a citizen's arrest." Near the Chanhassen District Office, which houses a regional police station, appellant grabbed Cassidy's arm and detained her. Cassidy testified that she felt "scared of not being able to get away."
There is no evidence in the record that a bench warrant had been issued for Cassidy, and, prior to trial, appellant waived any claim that he was making an arrest based on a warrant.
The District Office was locked, but a safety reserve officer arrived, and Cassidy asked the officer to have appellant release her. The reserve officer called the sheriff's office to report the incident, and a sheriff's deputy responded to investigate. Cassidy sustained bruises to her arm that were photographed. The district court found that the photographs show "a good degree of bruising to the arm." Appellant admitted he may have been responsible for some of the bruising, but asserted that Cassidy probably did most of the damage to herself when she struggled to get away. Cassidy testified that she did not struggle at all and "went limp."
Appellant was charged with fifth-degree assault. At trial, appellant testified that he believed that Cassidy had swindled him out of rent and was continuing to swindle him by lying about a willingness to disclose her current address, and that he used reasonable force to effectuate a citizen's arrest. Trial was to the court, which rejected appellant's defense, finding that there was no evidence that Cassidy was perpetrating a swindle at the time appellant seized her. Because there was no basis for a citizen's arrest, the district court specifically found that appellant was not authorized to use any force against Cassidy. Appellant was convicted of and sentenced for fifth-degree assault. This appeal followed.
DECISION
I. Standard of review
The district court's factual findings are subject to a clearly erroneous standard of review. State v. Critt, 554 N.W.2d 93, 95 (Minn. App. 1996), review denied (Minn. Nov. 20, 1996). Whether a statute has been properly construed is a question of law subject to de novo review. State v. Murphy, 545 N.W.2d 909, 914 (Minn. 1996). It is well settled that judging the credibility of witnesses and the weight given to their testimony rests within the province of the finder of fact. State v. Johnson, 568 N.W.2d 426, 435 (Minn. 1997). This court shows great deference to a fact finder's determination of witness credibility. State v. Dickerson, 481 N.W.2d 840, 843 (Minn. 1992), aff'd 508 U.S. 366, 113 S.Ct. 2130 (1993).
II. Citizen's-arrest defense
Minn. Stat. § 629.364(b) (2000), provides that a citizen may arrest a person found committing theft by swindle. Theft by swindle occurs when one "by swindling, whether by artifice, trick, device, or any other means, obtains property or services from another person." Minn. Stat. § 609.52, subd. 2(4) (2000). "Property" means all forms of tangible property, whether real or personal, without limitation. Minn. Stat. § 609.52, subd. 1(1) (2000). "Services" include, but are not limited to, professional services, electronic-computer services, the supplying of hotel accommodations, restaurant services, entertainment services, and advertising services. Minn. Stat. § 609.52, subd. 1(9). "Swindling . . . requires a showing of affirmative fraudulent or deceitful behavior." State v. Flicek, 657 N.W.2d 592, 598 (Minn.App. 2003).
The district court found that "there is no evidence that Cassidy was perpetrating a swindle on appellant" on the day of the incident. Appellant asserts that he arrested Cassidy for "twelve (12) good reasons," only four of which have to do with her actions on the day of the "arrest."
9) Cassidy led appellant around town for about an hour pretending to be leading him to her new address.
10) Cassidy agreed to visit the police but then passed streets leading to the police station.
11) Cassidy walked evasively: pausing by trails in the woods, in a bathroom, walking around trees, over curbs, zigzagging, appearing to be looking for ways to escape.
12) Cassidy finally attempted to run away and thereby broke her second promise to visit the police and give up her address for collection purposes.
We agree with the district court that none of these actions constitutes a swindle. Appellant also argues from a deductive syllogism that Cassidy, by failing to pay rent, committed theft by swindle, justifying her arrest. But appellant's "logical" argument fails because his premises are not true. Appellant erroneously equates "depriving a landlord of rent" to "stealing a paycheck" and "stealing a paycheck" to "swindling." And we find no merit in appellant's argument that Cassidy was perpetrating a swindle by stealing appellant's time as she led him around Chanhassen rather than to her home.
Appellant asserts that "if an action feels and seems like a swindle to the victim's heart, that citizen should be allowed to arrest with no liability for any superficial bruises or fear that will likely result from such an arrest." But the quantum of evidence required to determine that a public offense has been committed in one's presence is probable cause, an objective standard. State, Lake Minnetonka Conservation Dist. v. Horner, 617 N.W.2d 789, 795 (Minn. 2000). There is probable cause to arrest where "the objective facts are such that under the circumstances `a person of ordinary care and prudence [would] entertain an honest and strong suspicion' that a crime has been committed." Id. (citation omitted). Under this standard, and the facts of this case, the district court did not clearly err by concluding that appellant lacked probable cause to make a citizen's arrest of Cassidy under Minn. Stat. § 629.364(b) for theft by swindle.
Appellant argues for the first time on appeal that he qualifies as a merchant under Minn. Stat. § 629.366 (2000) and is entitled to immunity for a citizen's arrest under that statute. Generally, we decline to address such arguments on appeal. Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996) (stating appellate court will generally not consider matters not argued and considered by the district court). We note, however, that appellant's assertion that "a landlord is a merchant of shelter" does not bring landlords under the statutory definition of "merchant." "Merchant" is defined as "a person who owns, possesses, or controls personal property with authority to sell it in the regular course of business at retail or wholesale." Minn. Stat. § 629.365, subd. 2 (2000). Appellant's reliance on Minn. Stat. § 629.366 is without merit.
III. Sufficiency of evidence
Appellant argues that there was insufficient proof to support his conviction. When considering a claim of insufficient evidence, this court's review is limited to a careful analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, is sufficient to allow the fact-finder to reach its verdict. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989); see also State v. Knowlton, 383 N.W.2d 665, 669 (Minn. 1986) (stating that when defendant waives right to jury trial, appellate courts afford the district court's findings the same weight as a jury verdict). The reviewing court must assume that the fact-finder believed the state's witnesses and disbelieved any evidence to the contrary. State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989). This is especially true when resolution of the matter depends mainly on conflicting testimony. State v. Pieschke, 295 N.W.2d 580, 584 (Minn. 1980). And we defer to the fact-finder on determinations of credibility. Dale v. State, 535 N.W.2d 619, 623 (Minn. 1995).
Minn. Stat. § 609.224, subd. 1(a) (2000), provides that whoever intentionally inflicts bodily harm on another is guilty of fifth-degree assault. "Intentionally" is defined as having a purpose to do the thing or cause the result, or believing that the act performed successfully will cause the result. Minn. Stat. § 609.02, subd. 9(3) (2000). "Bodily harm" means physical pain or injury. Minn. Stat. § 609.02, subd. 7 (2000).
In this case, appellant admits that he intentionally grabbed Cassidy's arm with sufficient force to cause some bruising. Cassidy testified that appellant grabbed, squeezed, pulled, and jerked her arm. Photographs documented bruising from the incident. Appellant argues that the district court should have believed his testimony and the testimony of his passenger, and should have disbelieved Cassidy's testimony. But this court does not second-guess the fact finder's credibility determinations on appeal. State v. Folley, 378 N.W.2d 21, 26 (Minn.App. 1985). The record is sufficient to support the conviction of fifth-degree assault.
IV. Procedural irregularities
Appellant also alleges numerous procedural irregularities, none of which was raised before the district court. And appellant has cited no authority concerning these arguments. This court declines to address allegations unsupported by legal analysis or citation. Ganguli v. University of Minnesota, 512 N.W.2d 918, 919 n. 1 (Minn.App. 1994).