This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C7-02-487

 

State of Minnesota,

Respondent,

 

vs.

 

Dwane David Peterson,

Appellant.

 

Filed February 18, 2003

Affirmed

Randall, Judge

 

Blue Earth County District Court

File No. K9-01-1511

 

Mike Hatch, Attorney General, Thomas R. Ragatz, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103-6102; and

 

Ross Arneson, Blue Earth County Attorney, 410 South Fifth Street, P.O. Box 3129, Mankato, MN 56002 (for respondent)

 

John M. Stuart, State Public Defender, Michael F. Cromett, Assistant Public Defender, 2221 University Avenue Southeast, Suite 415, Minneapolis, Minnesota, 55414 (for appellant)

 

Considered and decided by Willis, Presiding Judge, Randall, Judge, and Peterson, Judge.

 

U N P U B L I S H E D O P I N I O N

RANDALL, Judge

Appellant Dwane Peterson was convicted of kidnapping and aggravated robbery and sentenced to 78 months in prison for kidnapping and 48 months in prison for aggravated armed robbery, to be served consecutively. Appellant now challenges his conviction arguing that (1) the trial court erred in giving the jury all jury instructions before opening statements and giving only abbreviated instructions at the end of the case, (2) the rules require the court to instruct on "all matters of law" in a final charge to the jury, and (3) the trial court's procedure was confusing to the jury and prejudicial to the defense because the final instructions eliminated the defense that an inoperable BB gun was not a "dangerous weapon." We affirm.

FACTS

On July 19, 2001, Robert Berg was sitting in the driver's seat of his car in the Mankato Public Library's parking lot when he was approached by appellant. Appellant handed Berg a note that said, "I have a gun, and I know how to use it." Appellant told Berg to move over and that he wanted to go to St. Peter, Minnesota. Berg moved over to the passenger seat and appellant sat in the driver's seat and drove away. As appellant was getting into the car he showed Berg a gun that was later identified as a BB gun.

Appellant drove to an elementary school in St. Peter, Minnesota where he had Berg move to the right side of the car's back seat. Appellant then drove away and proceeded to drive towards Minneapolis. On the way to Minneapolis, appellant stopped at a gas station in Jordan, Minnesota and had Berg move to the car's rear left side so that appellant could watch him. While appellant was putting gas in the car, Berg got out of the car and began heading toward the gas station. Appellant grabbed Berg and pointed the gun at him in an attempt to stop him from leaving. A truck driver, after seeing the encounter, intervened allowing Berg to escape into the gas station. The police were called and apprehended appellant at the gas station.

Appellant was charged with one count each of kidnapping in violation of Minn. Stat. 609.25, subds. 1(1), (2) (2000); first-degree aggravated robbery in violation of Minn. Stat. 609.245, subd. 1 (2000); theft of a motor vehicle in violation of Minn. Stat. 609.52, subd. 2(17) (2000); second-degree assault in violation of Minn. Stat. 609.222 (2000); and terroristic threats in violation of Minn. Stat. 609.713 (2000). Following a jury trial, appellant was found guilty of all charges and sentenced to 78 months for kidnapping and 48 months for aggravated robbery, to be served consecutively, for a total of 126 months.

At a pretrial conference held immediately before jury selection, the court and both attorneys read and discussed the court's proposed preliminary jury instructions. The preliminary jury instructions defined a dangerous weapon as:

anything designed as a weapon and capable of producing death or great bodily harm in the manner used or intended to be used, or is known to be capable of producing death or great bodily harm.

 

During the conference, the court told the attorneys that the instructions were only preliminary in nature and that they may be different than the final instructions submitted to the jury.

Following the state's case, the court determined that the definition of dangerous weapon in the preliminary instructions was inadequate and stated that it was going to include in the definition the phrase "or even temporarily inoperable." The court noted that the "temporarily inoperable" language was included in CRIM JIG 13.10. The court then went on to state that it did not include the phrase in the preliminary instructions because there was no reason to include the phrase at the time. Defense counsel objected to changing the instructions, arguing that changing the instructions after the preliminary instructions were read benefited the state, prejudiced the defendant, and denied him a fair trial because it eliminated his defense that the BB gun was inoperable and therefore not a dangerous weapon. The court overruled the defense's objections and included the "temporary inoperable" language in the final jury instructions. This appeal follows.

D E C I S I O N

I.

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) (quotation omitted). 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 argues that the trial court erred in giving the jury all its jury instructions before opening statements and giving only abbreviated instructions at the end of the case. Minn. R. Crim. P. 26.03 states that the court may "instruct the jury either before or after the arguments are completed." The better sense of that language is that the district courts give the final instructions just before or after oral argument, which, of course, comes only at the close of the case. We do not read it to mean "before the start of the trial" or "after the arguments are completed." Having said that, the court did tell the attorneys during the pretrial conference that the preliminary instructions would not be repeated during final instructions, making the attorneys aware of the court's procedure and putting the parties on notice of its procedure. Preliminary instructions are becoming more common and they have a benefit in that the jury, before the evidence even starts to come in, gets some feel for the standards of measurement that they will be called on to consider back in the jury room. However, the preliminary instructions are no substitute for the essential instructions in their entirety to be given just before or after oral argument. Minn. R. Crim. P. 26.03, comment (18)(4).

The rule does state that "preliminary instructions need not be repeated," but a too complete recital of "preliminary instructions" before the case even starts runs the risk, particularly in trials lasting days and weeks (not that uncommon), of being forgotten by the jury. Here, the court did repeat the basic instructions at the end. The jury had a complete copy of the preliminary instructions throughout the trial and a copy of the final instructions was made available to the jury during their private deliberations. Thus, we do not find reversible error. We simply caution trial courts to concentrate on complete instructions just before or after oral arguments, as the rule contemplates. Use preliminary instructions as you wish, but only as a guide. In a lengthy trial, err on the side of caution and repeat every essential instruction in your final charge, even those mentioned in the preliminary charge.

II.

Appellant argues that the district court erred because it failed to read the language that he must be found guilty beyond a reasonable doubt after each charge and because it failed to instruct the jury in all matters of law in the final instructions. We agree that the jury could have been instructed that way. However, there is no constitutional requirement to use a particular form of words, as long as the instructions as a whole adequately convey the concept of proof beyond a reasonable doubt. Victor v. Nebraska, 511 U.S. 1, 114 S. Ct. 1239 (1994).

Here, the court's charge to the jury adequately conveyed the concept of proof beyond a reasonable doubt and that the jury must find appellant not guilty if the state failed to prove him guilty beyond a reasonable doubt. The court's preliminary instructions included an instruction on reasonable doubt. Also, during the reading of the final instructions, the court told the jury that to find appellant guilty it must be convinced beyond a reasonable doubt that all the elements of the crime were proven by the state.

The preliminary instructions also contained language on the presumption of innocence and stated that the jury was the exclusive trier of facts. The court instructed the jury that there is a presumption of innocence and that the state's case needs proof beyond a reasonable doubt. These instructions were given to the jury for them to take into the jury room during deliberations. Viewing the instructions in their entirety, we conclude the court adequately instructed the jury on the law, the presumption of innocence, reasonable doubt, and its duty as the trier-of-fact.

III.

Appellant argues that the district court erred when it included the phrase "or even temporarily inoperable" in the definition of a dangerous weapon in the final jury instructions that was not present in the preliminary jury instructions. Appellant does not claim that the jury instructions did not adequately state the definition of a dangerous weapon, but instead argues that as a result of the court's preliminary instructions he detrimentally relied on that definition and that the resulting substantial prejudice denied appellant his due process right to a fair trial.

The preliminary jury instructions defined a dangerous weapon as:

 

anything designed as a weapon and capable of producing death or great bodily harm in the manner used or intended to be used, or is known to be capable of producing death or great bodily harm.

 

The district court's final jury instructions defined a dangerous weapon as:

 

[A]nything designed as a weapon and capable of producing death or great bodily harm in the manner used or intended to be used, or is known to be capable of producing death or great bodily harm. A firearm, whether loaded or unloaded, or even temporarily inoperable is a dangerous weapon. * * * A "firearm" means a device designed to be used as a weapon, from which is expelled a projectile by the force of any explosion or force or combustion."

 

Crim. Jig 13.10, second-degree assault, contains the following definition:

A firearm whether loaded or unloaded, or even temporarily inoperable, is a dangerous weapon.

A "dangerous weapon" is anything designed as a weapon and capable of producing death or great bodily harm, or any combustible or flammable liquid or anything else that, in the manner used or intended to be used, is known to be capable of producing death or great bodily harm* * *.

 

Minn. Stat. 609.02, subd. 6 (2000) states:

 

"Dangerous weapon" means any firearm, whether loaded or unloaded, or any device designed as a weapon and capable of producing death or great bodily harm, any combustible or flammable liquid or other device or instrumentality that, in the manner it is used or intended to be used, is calculated or likely to produce death or great bodily harm, or any fire that is used to produce death or great bodily harm.

 

Although Minn. Stat. 609.02 and CRIM JIG 14.04 do not contain the "or even temporarily inoperable" language, the district court was within its discretion to amend the instruction after the presentation of the evidence and use Crim. Jig 13.10's complete instruction. See generally State v. Knaeble, 652 N.W.2d 551, 554-55 (Minn. App. 2002) (holding that an inoperable gun is a "firearm" for purpose of felon-in-possession statute). The district court recognized appellant's argument that including the "temporarily inoperable" language in the final charge could negatively impact his case, and so do we. However, the record reflects support for the district court's decision. The court informed both attorneys before the trial began that the instructions were preliminary in nature and that they might be amended after the presentation of the evidence. The law recognizes that events during the course of trial may make it necessary to amend the jury instructions. See State v. Kirch, 322 N.W.2d 770, 774 (1982) (stating that preliminary instructions may include the essential elements of the offense and "would not obviate the possibility or necessity of amendment or augmentation after the evidence").

Appellant's argument that amending the instructions created "confusion" in the jury has no answer. Appellant presented no evidence showing that the jury was confused about the change in the instructions. The jury never sent any questions to the court (about the instructions). During preliminary instructions the court told the jury that the instructions were likely to change and stated they were to follow the law given in the final instructions. We do not know if the jury was confused. Therefore, it is pure speculation.

IV.

In his pro se brief, appellant argues that the district court erred in sentencing him to consecutive sentences because it exaggerated the offense. We disagree. Appellant's reliance on State v. Norris, 428 N.W.2d 61 (Minn. 1988), as support for his argument is misplaced. In Norris, the defendant shot and killed a patron of a crowded bar during a robbery and was convicted of murder and five counts of assault for assaulting five other patrons. The district court imposed a life sentence for the murder and five consecutive 60-month terms for the five assaults. The supreme court ruled that although the imposition of five consecutive sentences was "technically permissible," it unfairly exaggerated the criminality of the defendant's conduct. Id. at 71. The court then modified the sentence by holding that three of the five sentences for assault should be served concurrently. Id. In Norris there were six separate crimes. Two sentences for assault were run consecutively to a life sentence for murder one and three sentences for assault were run concurrently. Here appellant was sentenced on two separate crimes, kidnapping and aggravated robbery. Only one sentence ran consecutively to the other. This did not unfairly exaggerate the criminality of appellant's acts. If appellant had four, five, or six different crimes and the sentencing court was looking at that many sentences, then Norris would provide guidance. The district court did not err in imposing consecutive sentences.

Affirmed.