This opinion will be unpublished and

may not be cited except as provided by

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






James Ray Latshaw, petitioner,





State of Minnesota,



Filed August 20, 2002


Kalitowski, Judge


Crow Wing County District Court

File No. K7992155


Bradford Colbert, Assistant State Public Defender, 875 Summit Avenue, Room 254, St. Paul, MN 55105 (for appellant)


Mike Hatch, Attorney General, James B. Early, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and


Donald F. Ryan, Crow Wing County Attorney, County Service Building, 322 Laurel Street, Brainerd, MN 56401 (for respondent)


            Considered and decided by Anderson, Presiding Judge, Lansing, Judge, and Kalitowski, Judge.

U N P U B L I S H E D   O P I N I O N


Appellant contends the district court erred in denying his postconviction petition challenging his conviction of first-degree controlled-substance offense on the ground that the district court committed plain error in failing to instruct the jury that the state had to prove that appellant intended to manufacture methamphetamine.  Appellant also argues that the court abused its discretion in failing to durationally depart because appellant played a minor role in the crime and because statistical evidence indicates most sentences for manufacturing methamphetamine involve downward departures.  We affirm.




            District courts are allowed “considerable latitude” in the selection of language for the jury instructions.  State v. Gray, 456 N.W.2d 251, 258 (Minn. 1990) (quoting Alholm v. Wilt, 394 N.W.2d 488, 490 (Minn. 1986)).  Jury instructions must be viewed in their entirety to determine whether they fairly and adequately explain the law of the case.  State v. Flores, 418 N.W.2d 150, 155 (Minn. 1988).  “An instruction is in error if it materially misstates the law.”  State v. Kuhnau, 622 N.W.2d 552, 556 (Minn. 2001) (citation omitted).   

            Appellant contends the district court abused its discretion when it failed to instruct the jury that appellant had to intend to manufacture methamphetamine.  

            The district court instructed the jury:

            The statutes of Minnesota provide that whoever unlawfully manufactures any amount of methamphetamine is guilty of a crime. 


            The elements of controlled substance crime in the first degree are: 


First, that defendant manufactured any amount of methamphetamine.


            * * * *


            Second, that defendant’s act took place on or about September or October, 1999, in Crow Wing County, Minnesota.


            Appellant failed to object to the district court’s instruction.


A defendant’s failure to propose specific jury instructions or to object to instructions before they are given to the jury generally constitutes a waiver of the right to appeal.


State v. Cross, 577 N.W.2d 721, 726 (Minn. 1998) (citation omitted).  But an exception is made when the instruction involves “plain error affecting substantial rights.”  State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998) (citation omitted).  Plain error is established if there is “(1) error; (2) that is plain; and (3) the error * * * affect[s] substantial rights.”  Id. (citation omitted).  If plain error is established, this court must decide “whether it should address the error to ensure fairness and the integrity of the judicial proceedings.”  Id. (citation omitted).  Thus, even if the district court’s instruction constituted plain error, appellant’s conviction will be reversed only if the error affected his substantial rights.  See id.  Appellant “bears the heavy burden of showing that there is a reasonable likelihood the error had a significant effect on the verdict.”  State v. Patterson, 587 N.W.2d 45, 52 (Minn. 1998) (quotation omitted). 

Here, the district court did not err by failing to instruct the jury on intent because the statute used to convict appellant does not reference intent.  See Minn. Stat. § 152.021, subd. 2a (2000) (stating if person manufactures any amount of methamphetamine, he is guilty of first-degree controlled-substance crime).  Appellant cites State v. Bautista, C5-97-1668 (Minn. App. Feb. 28, 1998), for the proposition that courts must read an intent element into Minn. Stat. § 152.021.  But that case dealt with selling controlled substances, not manufacturing them, and the Bautista court’s concerns with free speech do not apply to the present matter.  See id.

Further, even if the failure to instruct on intent was error, it was not plain error.  Plain error is an error that was clear or obvious.  State v. Ihle, 640 N.W.2d 910, 917 (Minn. 2002).  Because the district court’s instruction followed Minnesota CRIMJIG 20.06, it was not obviously erroneous.  See 10A Minnesota Practice, CRIMJIG 20.06 (1999).  Moreover, appellant has not established that the alleged error affected his substantial rights.  Thus, we conclude that since the instruction was not plain error affecting appellant’s substantial rights, appellant’s failure to object constitutes a waiver of his right to challenge the instruction on appeal.


            The decision to depart from sentencing guidelines rests within the district court’s discretion, and an appellate court will not reverse the decision absent a clear abuse of that discretion.  State v. Schmit, 601 N.W.2d 896, 898 (Minn. 1999).  The sentences provided in the sentencing guidelines are presumed appropriate for every case, Minn. Sent. Guidelines II.D., and only in the “rare case” will a reviewing court reverse an imposition of the presumptive sentence, State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981).

            Appellant contends the district court abused its discretion by failing to depart from the presumptive sentence because he played only a minor role in the commission of the offense.  But while playing a minor role in the commission of the offense is a valid reason for a downward departure, it does not mandate a departure.  See State v. Wall, 343 N.W.2d 22, 25 (Minn. 1984) (stating “[t]he fact that a mitigating factor was clearly present did not obligate the court to place defendant on probation or impose a shorter term than the presumptive term”).  Thus, this factor alone does not demonstrate that the district court abused its discretion.

            Appellant also contends that the district court should have departed because despite his minor role in the manufacturing scheme, he received the longest sentence.  But although appellant received a longer sentence than his accomplices, he is the only member of the group that did not receive the benefit of a plea bargain.  In addition, one of the accomplices aided the prosecution by providing evidence against others.  Because of the different circumstances among the accomplices, the different sentences they received fails to show an abuse of discretion by the district court for not departing from the presumptive sentence.

            Finally, appellant contends that because more than half of all felons convicted of manufacture of methamphetamine who go to jail get downward durational departures, the district court’s decision should be treated as a departure from the presumptive sentence rather than imposition of the presumptive sentence.  We disagree.  This argument fails to consider the number of convictions for manufacture of methamphetamine that were part of plea bargains.  Moreover, regardless of what has occurred in other cases involving the manufacture of methamphetamine, the district court here imposed the presumptive sentence under the sentencing guidelines.  We conclude the district court did not abuse its discretion by failing to depart from the presumptive sentence.  

            Finally, we have reviewed the claims in appellant’s pro se supplemental brief and conclude that they are without merit.