This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
IN COURT OF APPEALS
State of Minnesota,
Craig Steven Lusk,
Goodhue County District Court
File No. K1011615
Mike Hatch, Attorney General, James B. Early, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Stephen N. Betcher, Goodhue County Attorney, Goodhue County Justice Center, 454 West 6th Street, Red Wing, MN 55066-2475 (for respondent)
John M. Stuart, State Public Defender, Steven P. Russett, Assistant Public Defender, 2221 University Avenue SE, Suite 425, Minneapolis, MN 55414 (for appellant)
Considered and decided by Schumacher, Presiding Judge, Halbrooks, Judge, and Forsberg, Judge.*
Appellant argues that the trial court erred in its instructions to the jury and that the prosecutor committed misconduct that, when viewed in conjunction with the trial court’s error, deprived him of his right to a fair trial. We affirm.
Appellant Craig Lusk challenges his conviction of first-degree burglary pursuant to Minn. Stat. § 609.582, subd. 1(a) (2000), and fourth-degree criminal damage to property pursuant to Minn. Stat. § 609.595, subd. 3 (2000). At the time of the burglary, Karla Walters and her two children lived in a new house in Zumbrota. The builder still owned the house, but rented it to Walters for $1,100 per month. Appellant was the subcontractor who built the house’s foundation.
Walters and appellant dated on and off for almost three years. During the three-week period before this incident, appellant stayed at his residence in Rochester, his father’s home in Pine Island, and occasionally stayed with Walters. The evidence at trial was that appellant was in the process of moving in with Walters on a permanent basis. Walters had not given appellant a key to her home, but she did give him the code to the garage keyless entry system. Just prior to the incident, appellant had begun to receive some mail at Walters’ home and had printed business cards with Walters’ address on them. Appellant paid Walters a total of $100 for his living expenses during that three-week period.
At 1:40 a.m. on September 25, appellant was drunk when he returned to Walters’ house. The two argued and Walters told appellant that “he was out of there.” Walters testified that appellant hit her in the face three or four times and that she locked all the doors and pulled the keyless pad off the wall after appellant left because she was afraid of him.
When appellant returned later that evening, he tried several ways to enter the house — attempting to rip a window out of the wall, kicking in several doors, and jimmying locks. Walters called the police and Officer William Mathews responded. The officer observed no signs of violence on Walters’ face but noted that she was shaken and had been crying. In completing his report, the officer checked boxes on the form that indicated that appellant and Walters were dating and cohabitating. In his trial testimony, the officer explained that there was no box on the form that correctly reflected the circumstance where one person occasionally stayed in the residence of another.
Appellant’s challenge is based on two claimed errors in the trial court’s instructions. First, appellant was convicted of Minn. Stat. § 609.582, subd. 1 (2000), which states:
Whoever enters a building without consent and with intent to commit a crime, or enters a building without consent and commits a crime while in the building, * * * commits burglary in the first degree * * * .
Minn. Stat. § 609.581, subd. 4 (2000), states:
“Enters a building without consent” means:
(a) to enter a building without the consent of the person in lawful possession;
Appellant argues that the trial court erred by failing to give the jury an instruction regarding the definition of “lawful possession.” Appellant contends that the court’s error was not harmless as it deprived the jury of guidance, as evidenced by the jury’s question to the court about the definition of “lawful possession” during deliberations.
Appellant’s counsel stated in closing argument:
They are cohabitants; they were both living there together. That’s what she told [the officer] that night. Now if you are cohabitants, you got lawful possession.
Counsel for the state objected on the ground that the argument was a misstatement of the law and asked the court for a curative instruction.
After closing arguments, the court instructed the jury concerning the elements of burglary in the first degree. The court’s instruction on entering a dwelling without the consent of the person in lawful possession included the statement that “[l]awful possession does not require actual title or ownership rights.” During deliberations, the jury sent the court a note that asked if there was a definition of “lawful possession” and, if so, what was it. In response to the jury’s question, the court and counsel discussed whether or not 10A Minnesota Practice, CRIMJIG 17.15 (1999) should be given. The state was willing to have the court give the jury the instruction, but appellant’s trial counsel objected. As a result, the court did not give CRIMJIG 17.15 and, instead, advised the jury that they should rely on the previous instructions.
The trial court generally possesses considerable latitude in choosing language for jury instructions. State v. Pendleton, 567 N.W.2d 265, 268 (Minn. 1997). Moreover, “[a] trial court has the discretion to decide whether to give additional instructions in response to a jury’s question on any point of law.” State v. Harwell, 515 N.W.2d 105, 108 (Minn. App. 1994) (citing Minn. R. Crim. P. 26.03, subd. 19(3)), review denied (Minn. June 15, 1994). But the jury instructions must not materially misstate the law. Pendleton, 567 N.W.2d at 268. “[J]ury 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) (citation omitted).
A party challenging a jury instruction for the first time on appeal is deemed to have forfeited the right to appeal that issue. State v. Malaski, 330 N.W.2d 447, 451 (Minn. 1983) (noting that generally, if defense counsel fails to object to error at trial, the defendant has forfeited his right to have this court consider that error on appeal). Nonetheless, this court may consider such a challenge if there was plain error that affected substantial rights. State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998). The three-prong test for plain error requires (1) error; (2) that is plain; and (3) that the error affected substantial rights. Id. If, on review, we conclude that plain error exists, we then determine whether the error should be addressed “to ensure fairness and the integrity of the judicial proceedings.” Id. (citation omitted).
Here, the court instructed the jury that “[l]awful possession does not require actual title or ownership rights.” Because appellant sometimes stayed with Walters and was in the process of moving into the house, appellant argued that he was a person in lawful possession of the house and, therefore, could not be convicted of burglarizing the dwelling.
In considering the instructions in their entirety, while CRIMJIG 17.15 may have been a more complete instruction, the court instructed the jury that “[l]awful possession does not require actual title or ownership rights.” The prosecutor presented ample evidence from which the jury could have concluded that appellant was not in lawful possession of the dwelling. Given the evidence before the jury and the minimal deficiency in the instruction, we find no plain error affecting substantial rights.
Second, appellant contends that the trial court committed plain error by instructing the jury that “whether cohabitation equals lawful possession, is simply a matter for you to make a factual determination about.” Appellant asserts that the question of whether a person is in lawful possession is a matter of statutory construction and, therefore, a matter of law.
In a case challenging a finding of probable cause for a burglary, this court held that “[t]he trial court erred in determining as a matter of law that [the defendant] was a co-occupant having a right to possession” of the premises and that resolution of the issue was for the fact-finder based on “evidence on matters of physical presence, payment of rent and other manifestations of any tenancy rights” not terminated by the victim’s directive to leave and not return. State v. Tolbert, 488 N.W.2d 11, 13 (Minn. App. 1992). Here, appellant’s argument fails on the first prong of the plain-error analysis. There is no error because the trial court correctly determined that it was a fact question for the jury whether appellant was cohabitating with Walters and whether that meant he was in lawful possession of the premises at the time of the burglary.
2. Alleged Prosecutorial Misconduct.
In his opening statement, the prosecutor told the jury that the evidence would show that Walters was negotiating a mortgage on the house and that a legal dispute was pending. Walters never testified concerning these matters. The prosecutor again referenced this alleged evidence in his closing argument, presumably to show that appellant was in lawful possession. Clearly the prosecutor’s reference to facts not in evidence was error. State v. Stofflet, 281 N.W.2d 494 (Minn. 1979). But appellant never objected.
By failing to object to the prosecutor’s closing argument, appellant forfeited his right to have the issue reviewed on appeal. State v. Hunt, 615 N.W.2d 294, 302 (Minn. 2000). In the absence of a timely objection, an appellate court may review the error under the plain-error analysis to determine whether the alleged conduct was clearly erroneous under applicable law and prejudicial to the appellant’s right to a fair trial. Id. Determining whether prosecutorial misconduct creates the need for a new trial rests within the discretion of the trial court. State v. Wahlberg, 296 N.W.2d 408, 420 (Minn. 1980). Appellate courts review alleged misconduct in light of the whole record and reverse only where the misconduct was so serious and prejudicial that the defendant’s constitutional right to a fair trial was impaired. State v. Johnson, 616 N.W.2d 720, 727-28 (Minn. 2000). Except in cases involving unusually serious misconduct, the test is whether the misconduct likely played a substantial part in influencing the jury to convict. State v. Caron, 300 Minn. 123, 127-28, 218 N.W.2d 197, 200 (1974). In cases involving serious misconduct, the reviewing court must determine whether the error was harmless beyond a reasonable doubt. Id.
Here, the error cannot be said to have played a substantial part in influencing the jury to convict. The prosecutor’s argument inferred that, because Walters was negotiating to purchase the home, she had lawful possession of the house. But the prosecutor also argued that “lawful possession does not require that the person own the building.” The prosecutor further stated that “[l]awful possession means that they have permission of the owner to use the building.” Walters testified that the builder owned the home and that she had his permission to live in the house. Therefore, the jury could have reached the conclusion that Walters was in lawful possession without relying on the prosecutor’s misstatements. The jury could have also reached the same conclusion with respect to appellant. Moreover, appellant bears the burden of persuasion on the third prong of the plain-error analysis and must show that “the error was prejudicial and affected the outcome of the case.” Griller, 583 N.W.2d at 741. No such prejudice was proved.
3. Appellant’s Pro Se Arguments.
In his pro se brief, appellant contends that the prosecutor engaged in misconduct by allegedly telling Walters that if appellant did not admit to the assault, the prosecutor would “hang” him. The prosecutor explained that he said something to the effect that “if [appellant] didn’t take the deal, he was going to hang himself,” and
the conversation was more or less, if he doesn’t take the deal, I’m going to have to go to the wall on all the charges at trial, because I think they are legally sufficient.
The court concluded that accusations concerning the prosecutor’s role in the case were improper. Appellant provides no evidence to dispute this interpretation of the conversation, and the trial court did not err in concluding that no misconduct occurred. Further, none of appellant’s other allegations of misconduct were so serious and prejudicial that the defendant’s constitutional right to a fair trial was impaired. See Johnson, 616 N.W.2d at 727-28 (citations omitted) (holding that a reviewing court should reverse the district court’s finding on the issue only “when the misconduct, considered in the context of the trial as a whole, was so serious and prejudicial that the defendant’s constitutional right to a fair trial was impaired.”).
Appellant also argues that the state’s witnesses gave false testimony. It is the exclusive role of the jury to determine the weight and credibility of witness testimony. State v. Folkers, 581 N.W.2d 321, 327 (Minn. 1998). This court will not disturb the verdict if the jury, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could have reasonably concluded that the defendant was guilty of the charged offense. State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988). After listening to all testimony, the jury convicted appellant. In consideration of the deference given to the jury in this matter and the evidence that supported its findings, the jury’s decision was not clearly erroneous.
Appellant claims that the trial court erred by not instructing the jury on the lesser-included offense of trespass. This court will not consider matters that were not presented to the trial court. Roby, 547 N.W.2d at 357. Because appellant did not request a trespass instruction from the trial court, we will not consider this issue on appeal.
Appellant further contends that evidence produced regarding damages to property was complete speculation. To the contrary, Walters testified explicitly as to the cost of the initial repairs. An owner of property may testify as to its value. Lehman v. Hansford Pontiac Co., 246 Minn. 1, 6-7, 74 N.W.2d 305, 309 (1955). Moreover, appellant’s charge was reduced from a felony to a misdemeanor when the parties determined that there was no evidence of property damage in excess of $500. This demonstrates close attention to the issue.
Contrary to appellant’s assertion, this reduction in the charge did not create double jeopardy. Double jeopardy bars multiple punishments for the same offense. State v. Alexander, 290 N.W.2d 745, 748 (Minn. 1980). The trial court properly made a finding that no different offenses were charged, only a reduction to the lesser-included offense of a misdemeanor. See Minn. R. Crim. P. 17.05. (permitting a court to amend an indictment or complaint at any time before a verdict if no additional or different offense is charged and if substantial rights of a defendant are not prejudiced).
Finally, appellant raises an ineffective-assistance-of-counsel claim. Because the merits of this claim are more appropriately addressed in a postconviction proceeding, we do not reach the issue. See Berg v. State, 557 N.W.2d 593, 595 (Minn. App. 1996) (stating that ineffective-assistance-of-counsel claim is more appropriately raised in a postconviction proceeding).
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
 A person is in lawful possession when the person owns the building or has been given the right to control or occupy the building by the owner. Such a person is in lawful possession of the building, although the person is not physically present at the time of the entry.
10A Minnesota Practice, CRIMJIG 17.15 (1999).
 Appellant’s contention that he had a tenancy-at-will relationship with the victim was not raised below and is, therefore, not properly before this court. See Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996) (concluding that reviewing court will not consider matters not argued and considered by the district court).