This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).






State of Minnesota,





Larry Jack Hilton,



Filed June 11, 2002


Halbrooks, Judge



Aitkin County District Court

File No. K899599


Mike Hatch, Attorney General, Thomas R. Ragatz, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and


Bradley C. Rhodes, Aitkin County Attorney, Courthouse West Annex, Aitkin, MN 56431 (for respondent)


Howard Bass, Meshbesher & Spence, Ltd., 1616 Park Avenue, Minneapolis, MN 55404 (for appellant)




            Considered and decided by Halbrooks, Presiding Judge, Peterson, Judge, and Huspeni, Judge.*

U N P U B L I S H E D   O P I N I O N


            Appellant Larry Jack Hilton challenges his conviction of conspiracy to commit first-degree controlled-substance crime, arguing that (1) the evidence was insufficient to prove that he conspired to manufacture methamphetamine, (2) the trial court’s conspiracy instruction denied him the right to a unanimous verdict, (3) the prosecutor’s discovery violations denied him the right to a fair trial, and (4) he was denied effective assistance of counsel.  Because we find that the evidence is sufficient to support the verdict, the court’s conspiracy instruction was not plain error, and appellant was denied neither his right to a fair trial nor his right to effective assistance of counsel, we affirm.


            On September 7, 1999, the Itasca County Sheriff’s Department received a tip about a methamphetamine lab at appellant Larry Jack Hilton’s home that involved Dennis Gowell.  Gowell and David Oothoudt had been staying with appellant for a few weeks while appellant prepared to sell his home.  In response to the tip, Deputy Dean Scherf followed Gowell’s car and observed Gowell buying a jug of muriatic acid, an ingredient used to manufacture methamphetamine.  Based on this and other information, Deputy Scherf met with the Hill City Police Department and the Aitkin County Sheriff’s Department, who then obtained a search warrant for appellant’s home.

The police recovered at least ten items used in the production of methamphetamine, including a 20-pound propane cylinder, burned coffee filters, battery peelings, pseudoephedrine packets, and muriatic acid.  The police also found an envelope containing appellant’s AA cards and a recipe for methamphetamine written in Gowell’s handwriting.  Appellant, who was home at the time of the search, was charged with one count of conspiracy to commit first-degree controlled-substance crime in violation of Minn. Stat. §§ 152.021, subds. 2a, 3(a), .096, subd. 1 (1998).

            Gowell testified at trial that he had manufactured approximately ten batches of methamphetamine while at appellant’s home, that appellant had helped him make it, and that appellant received some of the product whenever they made it.  Gowell also testified that he planned on making another batch on the day the warrant was executed and that he believed he discussed this with appellant.  Finally, Gowell testified that he had asked appellant to move the methamphetamine “lab,” because he feared that a recently arrested friend would “roll” on him.  When the police arrived, the lab had been moved.  The jury heard evidence of Gowell’s current incarceration for manufacturing methamphetamine as well as his prior arrests and convictions related to drugs and providing the police with false information.  Appellant denied that any of the methamphetamine-related materials were his or that he ever agreed to manufacture methamphetamine with Gowell.

            The trial court included 10 Minnesota Practice, CRIMJIG 5.07 (1999), in its instructions to the jury.  That instruction stated:

First, the Defendant conspired with another to commit the crime of controlled substance crime in the first degree – manufacture of methamphetamine.  A person conspires with another when he agrees with the other to commit a crime.


* * * *


Second, the Defendant or another party to the conspiracy did one of the overt acts alleged, and did so with the purpose of furthering the conspiracy.  The overt acts alleged in this case are:


1.         Preparation of precursor chemicals and equipment for the manufacture of methamphetamine,

2.         Secreting of lab equipment and anhydrous ammonia and tanks in case of a search by law enforcement,

3.         Provision of a location at which to manufacture methamphetamine,

4.         Allowing use of residence for the storage, preparation, and manufacture of methamphetamine.

5.         Obtaining and purchasing precursor chemicals, reagents, ingredients, and necessary materials for the manufacture of methamphetamine and transporting said materials to the Defendant’s home for such purpose.


Third, the Defendant entered the agreement, or an overt act took place on or about September 7, 1999 in Aitkin County.


Appellant was convicted of conspiracy to manufacture methamphetamine and sentenced to 86 months.  This appeal follows.


1.         Sufficiency of the evidence.


            Appellant argues that the evidence was insufficient to support a conviction of conspiracy because there was no evidence of an actual agreement.  When reviewing a challenge to the sufficiency of the evidence, this court views the evidence in the light most favorable to the conviction and determines whether it reasonably supports the verdict.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). 

To prove conspiracy to commit a controlled-substance crime, the state must show “(1) an agreement between two or more people to commit a controlled-substance crime and (2) an overt act in furtherance of the conspiracy.”  State v. Pinkerton, 628 N.W.2d 159, 162-63 (Minn. App. 2001), review denied (Minn. July 24, 2001).  Direct evidence is not required if the conspiracy can be inferred from the circumstances.  State v. Watson, 433 N.W.2d 110, 114-15 (Minn. App. 1988), review denied (Minn. Feb. 10, 1989).  Thus, the state need not prove the existence of a formal agreement so long as the evidence objectively shows that the parties agreed to commit the crime.  State v. Hatfield, 639 N.W.2d 372, 376 (Minn. 2002).  But when the state relies on circumstantial evidence, a defendant need only show that the evidence, and the reasonable inferences to be drawn from it, are consistent with a rational hypothesis other than his or her guilt.  Id.  The state must corroborate an accomplice’s testimony regarding a conspiracy so as to link or connect the defendant to the crime.  Minn. Stat. § 634.04 (1998); see State v. Ford, 539 N.W.2d 214, 225 (Minn. 1995) (accomplice testimony corroboration can be corroborated by other evidence that shows joint participation).

            Here, the record is replete with evidence that appellant and Gowell manufactured methamphetamine.  Gowell testified that he and appellant made methamphetamine together several times in the days before the September 7 search.  Gowell further testified that he intended to make more methamphetamine that day and that he believed he had discussed this with appellant.  When the police recovered large amounts of methamphetamine-related materials at appellant’s home while he was present, the process of manufacturing was roughly halfway complete.

We conclude that the evidence reasonably supports the jury’s finding that appellant and Gowell had an agreement to commit a controlled-substance crime on or about September 7.  We base this not only on Gowell’s testimony, but also on the vast physical evidence recovered at appellant’s home and the expert testimony that the manufacturing process was partially complete when the search began.  Although the state’s case relies, in part, on accomplice testimony, Gowell’s testimony of appellant’s involvement is corroborated by the amount of methamphetamine-related materials found in appellant’s home. 

Appellant offers no rational explanation as to how these facts are consistent with innocent behavior, and his reliance on three decisions in which conspiracy convictions were reversed is misplaced.  In the first case, Hatfield, 639 N.W.2d at 374, Hatfield was staying at a friend’s house when he asked another friend, Theobald, to pick up a cooler and propane tank that were in a garage near Theobald’s girlfriend’s home.  Theobald loaded the items into his girlfriend’s trunk and drove to where Hatfield was staying.  Id.  The police arrived soon thereafter and saw Hatfield carrying the cooler from Theobald’s girlfriend’s car.  Id.  They found several items in the home that are used to manufacture methamphetamine and also discovered that the tank and cooler contained similar materials.  Id.  Both Theobald and his girlfriend gave unrefuted testimony at trial that they had no idea that the tank and cooler contained methamphetamine-related materials.  Id. at 375.  In reversing Theobald’s conviction, the supreme court held that there was insufficient evidence to prove a conspiracy because there was no evidence that Theobald knew the contents of the tank and cooler.  As a result, he could not have agreed to commit the crime.  Id. at 376-77.  Because Hatfield was the only one with knowledge of the criminal conduct, there was no conspiracy.  Id.  Here, appellant’s claim of lack of knowledge was refuted by Gowell’s corroborated testimony that he and appellant had made methamphetamine together.

            In Pinkerton, this court analyzed the penalties related to selling and possessing a controlled substance and concluded that the penalty for sale of a controlled substance was greater than for possession.  628 N.W.2d at 163.  We reversed the conviction for conspiracy arising out of a controlled-substance purchase on the ground that an agreement between a seller and buyer does not constitute a conspiracy.  If it did, buyers and sellers would be subject to the same penalty, a result clearly not intended by the legislature.  Id

            Appellant asserts that Pinkerton stands for the proposition that mere association is not enough to constitute a conspiracy.  But the holding in Pinkerton focuses on the interplay of three penalty statutes.  Even if Pinkerton stood for appellant’s “mere association” argument, this case is distinguishable because appellant was not merely associated with Gowell.  Rather, Gowell’s testimony and the evidence found at appellant’s home establishes that appellant was an active participant in the criminal venture.

            In the third case, In re D.W.O., 594 N.W.2d 207 (Minn. App. 1999), we reversed an adjudication of delinquency for conspiracy to commit property damage because the evidence established only that D.W.O. was aware that others wanted to commit property damage.  Id. at 210.  As a result, we held that D.W.O.’s mere presence in a car with these others did not implicate him in a conspiracy.  Id.  D.W.O. is distinguishable because here the evidence showed that appellant was more than merely aware of Gowell’s intentions.  To the contrary, there was evidence that appellant both agreed to commit a controlled-substance crime and participated in the methamphetamine manufacturing.

2.         Appellant’s right to a unanimous verdict.

Appellant next argues that he was denied his right to a unanimous verdict because the trial court instructed the jury that it only had to find that appellant or Gowell committed one of five alleged overt acts.  Appellant contends that this instruction permitted the jury to convict him without unanimous agreement on who committed which acts.

The trial court is afforded wide discretion regarding jury instructions and will not be reversed absent a clear abuse of that discretion.  State v. Stempf, 627 N.W.2d 352, 354 (Minn. App. 2001).  Because appellant failed to object to the instructions in the trial court, he has waived this issue unless there was plain error committed by the trial court.  We will not reverse unless (1) there is error, (2) it is plain, and (3) it affects substantial rights.  State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998).

In Stempf, we held:

Where jury instructions allow for possible significant disagreement among jurors as to what acts the defendant committed, the instructions violate the defendant’s right to a unanimous verdict.


Stempf, 627 N.W.2d at 354 (citing State v. Begbie, 415 N.W.2d 103, 105 (Minn. App. 1987), review denied (Minn. Jan. 20, 1988)).  Specifically, there must be unanimous agreement “on which acts the defendant committed if each act itself constitutes an element of the crime.”  Id. at 355 (citing Richardson v. United States, 526 U.S. 813, 824, 119 S. Ct. 1707, 1713 (1999)).  In Stempf, we reversed a conviction of possession of a controlled substance because the jurors were presented with evidence that the defendant possessed methamphetamine in two locations—in a truck and at his workplace—and the state argued that the jury did not have to be unanimous in finding beyond a reasonable doubt that the defendant possessed a controlled substance in a single location.  The jury could convict if some jurors believed there was possession in the truck and others found that defendant possessed drugs at work.  Id. at 359. 

But while unanimity is required with respect to an element of a crime, it is not required with regard to the alternative ways a crime could be committed.  When “certain statutory alternatives are mere means of committing a single offense, rather than independent elements of the crime,” the jury need not be unanimous as to the means used to commit the crime so long as it is unanimous in finding that the crime’s elements are met.  Id. at 355 (quoting Schad v. Arizona, 501 U.S. 624, 636, 111 S. Ct. 2491, 2499 (1991)).  Thus, in State v. Hart, 477 N.W.2d 732, 737-39 (Minn. App. 1991), this court affirmed a conviction of first-degree criminal sexual conduct when jurors were allowed to convict the defendant if they found either that he caused the victim personal injury or placed her in fear of harm.  Because the statute explicitly allowed for either of the circumstances as alternative means of committing first-degree criminal sexual conduct, the defendant’s right to a unanimous verdict was not violated.  Id.

In Begbie, the defendant made terroristic threats on an answering machine toward both a husband and a wife.  415 N.W.2d at 104.  On appeal, the defendant contended that he was denied his right to a unanimous verdict because some jurors could have found that he threatened the wife while others found that he threatened the husband.  Id. at 105.  We disagreed and held that

[i]t is sufficient that all jurors unanimously agreed on their ultimate conclusion that Begbie was guilty of the crime charged, even though they may not have agreed upon exactly which victim Begbie had intended to terrorize.


Id. at 106.

Here, the state attempted to prove one element of the crime—an overt act—with multiple instances.  The instructions required the jurors to find only that one of the two conspirators committed one of five acts.  Like Stempf, this approach potentially allowed the jurors to convict appellant while disagreeing as to the act that satisfied the element.  As a result, we conclude that the trial court erred.

But even though we conclude that the trial court’s instruction was error, we do not find it constituted plain error.  Plain error exists when the court goes against clear and established law.  State v. Crowsbreast, 629 N.W.2d 433, 438 (Minn. 2001).  The trial court followed the recommended jury instruction in 10 Minnesota Practice, CRIMJIG 5.07 (1999).  See State v. Sutherlin, 396 N.W.2d 238, 241 (Minn. 1986) (finding the trial court did not commit plain error when it followed the recommended instruction without objection).  Further, the law in this area is unsettled, as courts continue to grapple with the implications of StempfSee Crowsbreast, 629 N.W.2d at 438 (finding the trial court did not commit plain error when the error occurred, if at all, in an unclear area of the law).

In addition, we do not conclude that this error affected appellant’s substantial rights.  An error affects substantial rights when it is prejudicial and influences the outcome of the case.  Griller, 583 N.W.2d at 741.  This requires showing that there is a reasonable likelihood that a proper instruction would have significantly affected the jury’s verdict.  Id.  As such, appellant bears a “heavy” burden of persuasion.  Id.

Both appellant’s defense at trial and his appeal on the sufficiency of the evidence focus on his denial of an agreement between himself and Gowell.  As a result, he did little to dispute the state’s evidence of those acts.  Gowell admitted the first alleged act (the preparation of precursor chemicals and equipment) and the fifth (purchasing necessary materials and transporting to appellant’s house).  And the evidence showed that appellant committed the third alleged act (providing the location for manufacture) and the fourth (allowing residence for the storage, preparation, and manufacture of methamphetamine).  The only dispute concerns the second alleged act (whether appellant followed Gowell’s instructions and moved the lab equipment).  But Gowell testified that he asked appellant to move the lab and that it had been moved before the police arrived.  Thus, there is no reasonable likelihood that a different instruction would have significantly affected the jury’s verdict.  Therefore, we decline to reverse because there was no plain error affecting substantial rights.[1]


3.         Discovery violations.


            Appellant contends that he was denied his right to due process and a fair trial by the state’s failure to disclose Gowell’s criminal record and its list of witnesses and physical evidence.  The trial court has broad discretion with respect to discovery matters and will not be reversed unless it clearly abuses that discretion.  State v. Freeman, 531 N.W.2d 190, 199 (Minn. 1995).  But even if the trial court abuses its discretion, we will not reverse if there is no reasonable probability that, without the error, the result of the trial would have been different.  Id. 

It is undisputed that the state failed to provide appellant with a copy of Gowell’s criminal history or its witness and exhibit lists before trial.  See State v. Hunt, 615 N.W.2d 294, 299 (Minn. 2000) (holding that due process requires disclosure of impeachment evidence); Minn. R. Crim. P. 9.01, subd. 1(1)(a), (3), (4), (6) (requiring disclosure of the witnesses and physical evidence likely to be used at trial).  While we do not condone these failures by the prosecutor, we conclude that there was no prejudice that would warrant reversal.[2] 

First, appellant’s counsel received a copy of Gowell’s criminal record before lunch on the day that Gowell testified and incorporated it into his cross-examination.  Gowell testified that he was incarcerated at Stillwater for manufacturing methamphetamine and that he had also been sentenced in Cass County for selling methamphetamine and one other offense.  Gowell also admitted that he had been convicted of giving false information to a police officer.  In addition, appellant’s attorney told the court that he had had enough time to review Gowell’s record.  As a result, there is no reasonable probability that an earlier disclosure of the record would have affected the jury’s verdict.

Second, appellant received several investigative reports in the course of discovery that described all the state’s witnesses and their knowledge of the crime.  The reports also set out the other evidence presented at trial.  The only items not included in the reports, a pamphlet on manufacturing methamphetamine and a forensic lab report, did not impact appellant’s primary defense theory that he had no agreement with Gowell.  As such, the evidence presented at trial could not have surprised appellant or altered his defense.


4.         Effective assistance of counsel.


            Appellant’s final argument alleges three failures on the part of his trial counsel that deprived him of his right to effective assistance of counsel.  First, he claims that his counsel’s pretrial investigation was wholly inadequate because he failed to compel the prosecutor to disclose Gowell’s criminal record and neglected to independently investigate Gowell’s criminal record and examine the physical evidence.  Second, he argues that his counsel failed to object to hearsay testimony, in the form of two officers’ statements about incriminating information they received and the introduction of the forensic lab report by an Aitkin County Deputy.  Finally, appellant asserts that his counsel failed to object to the trial court’s jury instructions as violative of his right to a unanimous verdict.  Although a claim of ineffective assistance of counsel is more properly raised in a postconviction petition for relief, the record is adequately developed to address appellant’s claim.  See State v. Thomas, 590 N.W.2d 755, 759 (Minn. 1999) (stating that this court will address an ineffective-assistance-of-counsel claim without a postconviction record when the record is already sufficiently developed).

            To prove ineffective assistance of counsel, a defendant must show that his counsel’s performance failed to reach an objective standard of reasonableness and that there is a reasonable probability that the result would have been different without these errors.  State v. Lahue, 585 N.W.2d 785, 789 (Minn. 1998).  “This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.”  Strickland v. Washington, 446 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984).  Given this high standard, there is a heavy presumption that counsel’s performance was within the realm of reasonable assistance.  Id.  We will dispose of an ineffective-assistance-of-counsel claim when the appellant fails to prove there was “a reasonable probability the outcome would have been different.”  Hale v. State, 566 N.W.2d 923, 927 (Minn. 1997) (citing Strickland, 446 U.S. at 697, 104 S. Ct. at 2069 (“If it is easier to dispose of an ineffective assistance claim on the ground of lack of sufficient prejudice * * * that course should be followed.”)) (other citation omitted).

Here, none of the alleged errors prejudiced appellant’s defense.  Even if counsel had received Gowell’s complete criminal history with more time in which to prepare, Gowell was impeached by its contents.  Similarly, more time to examine the physical evidence would have done little, given that there was no dispute over it.  The alleged hearsay testimony must be viewed in light of Gowell’s damaging testimony and the evidence recovered from appellant’s home.  There was no prejudice from the jury instructions given that appellant’s defense focused on the lack of an agreement between Gowell and appellant, not on countering the evidence of an overt act.  As a result, we conclude that there is no reasonable probability that the jury’s verdict would have been different had these alleged errors not occurred. 



*  Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10. 

[1]  We note for future guidance that a Ninth Circuit District Court alleviated precisely this problem by instructing the jury that conspiracy requires that the jury find one of the co‑conspirators committed one of the alleged overt acts “with all of you in agreement on which of the overt acts was committed.”  United States v. Smith, 891 F.2d 703, 709 (9th Cir. 1989).


[2]  Although appellant asks us to reverse even if we find no prejudice resulted, we decline to exercise such supervisory powers.  See State v. Kaiser, 486 N.W.2d 384, 386-87 (Minn. 1992) (reversing harmless disclosure violations in the exercise of its supervisory powers); State v. Gilmartin, 535 N.W.2d 650, 653 (Minn. App. 1995) (declining to exercise the supervisory powers reserved to the supreme court).