This opinion will be unpublished and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
State of Minnesota,
Patrick William Mincey,
Filed June 17, 2003
Hennepin County District Court
File No. 02033244
Mike Hatch, Attorney General, Suite 500, 525 Park St., St. Paul, MN 55103; and
Amy Klobuchar, Hennepin County Attorney, Linda M. Freyer, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)
John M. Stuart, State Public Defender, Leslie J. Rosenberg, Assistant Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN 55414 (for appellant)
Considered and decided by Peterson, Presiding Judge, Lansing, Judge, and Huspeni, Judge.*
U N P U B L I S H E D O P I N I O N
A jury convicted Patrick Mincey of second-degree assault and unlawful possession of a firearm. Because the district court did not err in instructing the jury on the proper use of other-crimes evidence offered to establish motive and impeach Mincey, we affirm.
F A C T S
Patrick Mincey was charged with second-degree assault and being a felon in possession of a firearm, following an incident in which shots were fired at a vehicle driven by Damon Stevens. At the time of the shooting, Mincey was on probation for kidnapping Stevens’s acquaintance, Michael Mitchell.
Before trial, the state moved to admit evidence of the kidnapping and Mincey’s subsequent conviction. The state indicated it intended to use evidence of the kidnapping and conviction to show motive and to impeach Mincey. Mincey did not object to the motions, and both the state and defense counsel referred to the kidnapping in their opening statements. The state suggested that the conviction provided Mincey with a motive for the assault, while the defense contended the kidnapping incident gave Stevens a motive falsely to accuse Mincey.
The state presented evidence of the kidnapping through the testimony of Mitchell. Before Mitchell testified to the details of the kidnapping, the district court cautioned the jury against convicting Mincey of the assault based on his involvement in the kidnapping. Mincey did not object to that instruction. The kidnapping conviction was introduced by the defense during its case in chief.
After the defense rested, the district court and counsel met in chambers and agreed on the jury instructions that would be given. Both the prosecutor and defense counsel stated on the record that they had no objections to the instructions and both sides referred to the kidnapping incident in their closing arguments to support their respective motive theories.
In its final instructions to the jury, the district court initially addressed the kidnapping incident by means of an other-crimes instruction:
I – when we talked about the kidnapping charge before, I told you that before the defendant may be convicted of the offense that he’s charged with today, you must find that the defendant committed that specific offense. You are not to convict the defendant of any offense of which the defendant is not charged.
Now, the state has introduced evidence of an [earlier kidnapping]. As I told you at the time this evidence was offered, it was admitted for a limited purpose of assisting you in determining whether the defendant committed those acts for which the defendant is charged today in the Complaint.
The defendant is not being tried for and may not be convicted of any offense other than the charged offense. You are not to convict the defendant on the basis of [the earlier incident]. To do so would result in unjust double punishment.
After the district court finished instructing the jury, counsel approached the bench. The ensuing discussion was not recorded, but at its conclusion the district court expanded the instruction to address veracity and motivation:
It’s been brought to my attention that when we’re considering the evidence that a witness has been previously convicted of a crime, you may consider whether the kind of crime committed indicates the likelihood that the witness is telling or not telling the truth. You should utilize that testimony in the - - with regard to the witnesses.
Now you’ll remember with regard to the testimony with regard to the previous conviction of the defendant that was offered for the purposes of a motivation for this crime, you may consider that previous testimony as evidence for motivation if you think that’s appropriate.
Neither the state nor the defense objected to the court’s instructions.
The jury returned a guilty verdict on both charges, and Mincey now appeals.
D E C I S I O N
The district court has broad discretion in selecting language for jury instructions. State v. Peou, 579 N.W.2d 471, 475 (Minn. 1998). If the instructions correctly state the law in language that can be understood by the jury, there is no reversible error. Id. In general, a defendant’s failure to object to jury instructions before they are presented to the jury constitutes a waiver of the right to appeal. State v. Cross, 577 N.W.2d 721, 726 (Minn. 1998). This court may review jury instructions despite a lack of objection “if the instructions contain plain error affecting substantial rights or an error of fundamental law.” Id. To qualify as plain error “the trial error must have been so clear under applicable law at the time of the conviction * * * that the defendant’s failure to object * * * should not forfeit his right to a remedy.” Rairdon v. State, 557 N.W.2d 318, 323 (Minn. 1996).
Because Mincey did not object to the instructions at trial, we review the challenged instructions for plain error. Mincey argues that the district court committed plain error when it instructed the jury that it could consider the kidnapping conviction as evidence of motive. He contends, first, that an other-crimes instruction may not specify the purpose for which the evidence may be used and, second, that the instruction had the effect of repeating the other-crimes instruction already given, thus unfairly highlighting the evidence of the previous conviction.
In support of his first argument, Mincey cites two pattern instructions in the jury instruction guide, apparently relying on commentary by the guide’s authors stating that an other-crimes instruction “should not discuss possible inferences that may be drawn from particular evidence.” 10 Minnesota Practice, CRIMJIG 2.01, 3.16, cmt. (1999). The jury instruction guide is not a source of law. Rather, the guide provides judges with sample instructions drafted to comply with applicable statutes, procedural rules and caselaw. Therefore, to the extent that the commentaries to instructions 2.01 and 3.16 cite no authority in support of the “rule” cited by Mincey, deviation from the guide alone does not constitute an error of law. Cf. State v. Broulik, 606 N.W.2d 64, 71 (Minn. 2000) (observing in a different context that court was unaware of any appellate decision supporting the commentary to instructions 2.01 and 3.16).
Mincey cites no other authority, and our review of the applicable legal standards finds no support for the proposition that the court may not indicate the purpose to which other-crimes evidence may be put. Indeed, jury instructions used in many federal courts explicitly inform the jury of the permissible uses of other-crimes evidence. See, e.g., Eighth Circuit Model Jury Instructions, Criminal 2.08 (2003) (“[Y]ou may consider the [other acts] evidence to decide (describe purpose * * * for which evidence has been admitted)”); Ninth Circuit Model Jury Instructions, Criminal 2.10 (2000); First Circuit Pattern Jury Instructions, Criminal 2.05 (1998) (containing similar language). Mincey has accordingly failed to demonstrate that reference to the permissible use of the other-crimes evidence constituted plain error.
Turning to Mincey’s argument that the instruction unfairly highlighted the kidnapping incident, we find no grounds for reversal. First, Mincey again provides no authority in support of his assertion of error. Second, the record provided by Mincey is inadequate fully to consider his claim. The trial transcript indicates that the challenged instruction was prompted by a side-bar discussion that was not recorded. When no report of all or any part of the proceedings is made, it is incumbent upon the appellant to use the procedures outlined in Minn. R. Civ. App. P. 110.03 to create a supplementary record for consideration on appeal. See Minn. R. Civ. App. P. 110.03 (describing creation of a “statement of the proceedings from the best available means, including recollection”); Minn. R. Crim. P. 28.02, subd. 9 (incorporating Rules of Civil Appellate Procedure “to the extent applicable [to] govern the transcript of the proceedings and the transmission of the transcript and record to the Court of Appeals”). When the record on appeal is inadequate, relief cannot be granted, and the district court’s order must be affirmed. See State v. Anderson, 351 N.W.2d 1, 2 (Minn. 1984) (affirming conviction when defendant provided no record showing prejudice that would entitle him to a new trial).
In view of the considerable latitude afforded district courts in formulating jury instructions and because Mincey has failed to demonstrate that the district court’s instructions constituted plain error, we affirm.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.