This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. ß 480A.08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C3-01-2243

 

 

State of Minnesota,

Respondent,

 

vs.

 

Carry Robinson,

Appellant.

 

Filed February 18, 2003

Reversed and remanded

Lansing, Judge

 

Ramsey County District Court

File No. K9012047

 

 

Mike Hatch, Attorney General, Suite 500, 525 Park Street, St. Paul, MN† 55103; and

 

Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant County Attorney, Suite 315, 50 West Kellogg Boulevard, St. Paul, MN† 55102-1657 (for respondent)

 

Bradford Colbert, Room 254, 875 Summit Avenue, St. Paul, MN† 55105 (for appellant)

 

††††††††††† Considered and decided by Shumaker, Presiding Judge, Lansing, Judge, and Minge, Judge.

U N P U B L I S H E D†† O P I N I O N

 

LANSING, Judge

 

††††††††††† The state charged Carry Robinson with possession of a short-barreled shotgun.† A week before trial, the state amended the charge to aiding and abetting possession of a firearm by an ineligible person.† A jury found Robinson guilty of the amended charge, and, in this appeal from conviction, he challenges the authentication of telephone statements, the propriety of the jury instructions, and the sufficiency of evidence to support the conviction.† Because the aiding-and-abetting instruction, combined with the other instructions, would permit a jury to find Robinson guilty without satisfying all elements of the charged offense, we reverse and remand for a new trial.

F A C T S

During the execution of a search warrant at a multiple-resident house, a police officer searching one of the bedrooms found a shotgun with a barrel that appeared to be shorter than the length permitted by law.† The shotgun was loaded and had been placed at the back of a shelf among clothing and personal items.† In a discussion with the homeowner, police determined that Carry Robinson shared the bedroom with a woman who was asleep in the bedroom when the police entered the house.† Police told the homeowner that they wanted to talk to Robinson about the gun.

A few days later the police received a call from a man who identified himself as Carry Robinson and gave his home address as the house that had been searched.† The caller provided his birthdate, which police confirmed was Robinsonís birthdate, and the name of his roommate, which conformed to the name listed in the police report.† The caller explained that the shotgun belonged to a person named ďTwig,Ē who had put it in the closet approximately three weeks earlier without Robinsonís permission or knowledge.† The caller stated that when Twig, who was at that time incarcerated, told him the gun was in the closet, he had contacted Twigís friends and asked them to pick up the gun, but they had not.

The state initially charged Robinson with possession of a short-barreled shotgun in violation of Minn. Stat. ß 609.67, subd. 2 (2000).† In an amended complaint, the state charged Robinson with aiding and abetting possession of a firearm by an ineligible person in violation of Minn. Stat. ß 624.713, subd. 1(b) (2000).† The state and the defense stipulated that Robinsonís criminal record made him ineligible to possess a firearm.† The jury found Robinson guilty of aiding and abetting possession of a firearm by an ineligible person.

D E C I S I O N

I

On appeal, Robinson challenges the admissibility of the telephone statements as insufficiently authenticated.† Robinson did not object to the admission of the telephone statements at trial.† Failure to object to an alleged error in the district court generally constitutes waiver of the right to raise the issue on appeal.† State v. Vick, 632 N.W.2d 676, 684-85 (Minn. 2001) (applying waiver standard to evidentiary error).† But a defendant may obtain appellate review and relief from plain errors that affect substantial rights even though they were not brought to the attention of the district court.† Minn. R. Crim. P. 31.02.† To establish plain error, Robinson must show that the ruling was error, that the error was plain, and that the erroneous ruling affected his substantial rights.† State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998).

††††††††††† The requirement of authentication is a condition precedent to admissibility, which is satisfied by evidence sufficient to support a finding that the matter in question is what the proponent claims.† Minn. R. Evid. 901(a).† Telephone conversations may be authenticated by a witnessís testimony that he recognized the callerís voice.† City of St. Paul v. Caulfield, 254 Minn. 142, 144, 94 N.W.2d 263, 265 (1959).† Authenticity may also be established by circumstantial evidence when surrounding facts and circumstances make the callerís identity reasonably certain.† State ex rel. Trimble v. Hedman, 291 Minn. 442, 448, 192 N.W.2d 432, 436 (1971); see also Minn. R. Evid. 901(b)(4) 1977 comm. cmt. (stating that rule 901(b)(4) indicates that an offer of evidence can be authenticated by circumstantial evidence).† These identifying facts and circumstances may precede or follow the conversation or be based on the content of the conversation itself. †Katzmarek v. Weber Brokerage Co., 214 Minn. 580, 583, 8 N.W.2d 822, 824 (1943).

††††††††††† The circumstances that preceded the telephone call to the police and the contents of the call sufficiently authenticate Robinsonís identity.† First, the police officer received the call shortly after leaving a message asking Robinson to call him.† A telephone reply to a specific request has, without more, been held to be sufficient to authenticate a callerís identity.† See Minn. R. Evid. 901(b)(4) 1977 comm. cmt. (stating that telephone conversations are typically authenticated by the well-known ďreply doctrineĒ); see also People v. Lynes, 406 N.Y.S.2d 816, 817 (N.Y. App. Div. 1978) (holding that identity of caller is authenticated by witness testimony that caller responded to specific request to call and identified himself as the person who was asked to call).† Second, the caller identified himself as Robinson.† Telephone conversations can be authenticated in part by self-identification.† Minn. R. Evid. 901(b)(6).† Finally, the caller knew personal information about Robinson that included his address, his date of birth, and his roommateís name.

The telephone callerís identity was properly authenticated.† Because Robinson has not demonstrated that the evidentiary ruling was error, he has failed to meet the threshold requirement for application of the plain-error doctrine.

II

††††††††††† The two remaining challenges to the conviction are related claims on the propriety of the jury instruction on aiding and abetting and the sufficiency of the evidence to sustain the conviction.† At trial Robinson objected to the aiding-and-abetting instruction on the ground that it reduced the stateís burden of proof.† Robinson did not argue at trial, nor has he argued on appeal, that the instruction misstates the law.† He argues instead that, in the context of the charge for possession of a weapon by an ineligible person, the aiding-and-abetting instruction would allow the jury to find him guilty on less than the requisite proof for all elements of the charge.

††††††††††† District courts are permitted ďconsiderable latitudeĒ in the selection of language for jury instructions, provided that the jury instructions do not materially misstate the law.† State v. Pendleton, 567 N.W.2d 265, 268 (Minn. 1997).† It is well settled that the courtís instructions must define the crime charged.† State v. Crace, 289 N.W.2d 54, 59 (Minn. 1979).† When instructions are misleading or confusing on fundamental points of law, a reviewing court may reverse and order a new trial.† State v. Butler, 295 N.W.2d 658, 659 (Minn. 1980).† Due process requires that the state prove each element of the charge beyond a reasonable doubt.† State v. Costello, 646 N.W.2d 204, 211 (Minn. 2002).

††††††††††† The district court instructed the jury that Robinson was charged with possession of a firearm by an ineligible person and that the parties had stipulated that Robinson was an ineligible person.† On the element of possession, the court instructed that possession could be actual or constructive, exclusive or joint, and that possession may be shared with others.† The judge then instructed the jury on aiding and abetting.† The judge told the jurors that a person aids and abets an offense if he knowingly and actively participates in the offense and that it is not necessary that the state prove that the defendant himself committed all of the acts constituting the offense, but the state must prove that someone or some people committed all of the acts constituting the offense and that the defendant played a knowing role in the commission of the crime.† The judge then instructed the jury on liability for crimes of another and stated that the defendant is guilty of a crime committed by another person if the defendant aided the other person in committing it.

††††††††††† On the facts developed at trial, these instructions raise substantial problems.† First, the state presented no evidence that anyone other than Robinson was ineligible to possess the weapon.† Only Robinsonís criminal record was referenced in the course of the trial and the instructions, by inclusion of the stipulation on Robinsonís ineligibility, recognize that Robinson is the only person who was alleged to have been ineligible to possess the weapon.† It is also only Robinson who is charged with aiding and abetting an ineligible person to possess the gun.† Consequently, the aiding-and-abetting instruction results in Robinsonís being charged with aiding and abetting himself to possess the gun illegally.† The conceptual problems are apparent, but the deeper question is the instructionís effect on the juryís consideration of the elements of the offense.

Applying the instructions, the jury could consider that Robinson aided and abetted the ineligible possession by committing previous crimes that made him ineligible.† Instructing the jury that it is not necessary that Robinson himself committed all of the acts constituting the offense, so long as someone or some people committed all of the acts constituting the offense, injects even more confusion because Robinson was the only person who was alleged to be ineligible to possess the gun.† Applying the instruction for aiding and abetting to these facts, the jury could find Robinson guilty on the basis of lesser participation than what is required for the possession element.† If the jury considered the aiding and abetting together with constructive possession, the proof requirements are further eroded.

The state argues that the aiding and abetting relates to the joint possession with Twig.† But the state introduced no evidence that Twig was ineligible to possess a gun.† Thus the jury might reasonably think that Robinson could have aided and abetted Twig in the illegal possession of a short-barreled shotgun.† The state, however, introduced no evidence other than a conclusory statement that the barrel-length was illegal.† And more significantly, the offense of possessing a short-barreled shotgun had been amended so the jurors would have no framework or specific instruction that would allow them to determine whether or not Robinson aided and abetted the possession of an illegal weapon.† And even if they had been provided that evidence and the required elements, Robinson was no longer charged with that offense.

††††††††††† On this record we agree with Robinsonís contention that the aiding-and-abetting instruction, combined with the other instructions, would allow the jury to find him guilty on less than the requisite proof for all elements of the charge.† We reject Robinsonís alternative claim that an absence of evidence of Robinsonís dominion and control over the gun compels acquittal.† But, because we cannot conclude beyond a reasonable doubt that the jury instructions did not affect the verdict, we reverse and remand for a new trial.† See State v. Carlson, 268 N.W.2d 553 (1978) (reversing and remanding for new trial in part because instruction that may have individually been justified was misleading when it was combined with the courtís other instructions).

††††††††††† Reversed and remanded.