STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Dennis James Sornsen,
O R D E R
Considered and decided by Minge, Presiding Judge, Harten, Judge, and Stoneburner, Judge.
Based on the file, record, and proceedings, and becauSE:
1. Our unpublished opinion was filed July 29, 2003.
2. The opinion indicated that appellant was challenging the sufficiency of the evidence to support his conviction on the count charging aiding and abetting first-degree controlled substance crime, but addressed only the strength of the evidence corroborating the accomplice’s testimony.
3. The opinion has been modified to fully address the sufficiency-of-the-evidence issue raised by appellant.
IT IS HEREBY ORDERED the opinion filed July 29, 2003 is withdrawn and the attached opinion is substituted.
Dated: August 1, 2003
BY THE COURT
/s/Terri J. Stoneburner
This opinion will be unpublished and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
Affirmed in part, reversed in part, and remanded
Isanti County District Court
File No. K101940
Mike Hatch, Attorney General, Hilary Lindell Caligiuri, Deputy Attorney General, Suite 1100, 445 Minnesota Street, St. Paul, MN 55101; and
Jeffrey Edblad, Isanti County Attorney, 555 18th Avenue Southwest, Cambridge, MN 55008 (for respondent)
John M. Stuart, Minnesota Public Defender, Theodora Gaïtas, Assistant Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN 55414 (for appellant)
Considered and decided by Minge, Presiding Judge, Harten, Judge, and Stoneburner, Judge.
Appellant Dennis James Sornsen argues that his conviction of aiding and abetting first-degree controlled-substance crime was based on insufficient evidence and that the district court committed plain error in failing to instruct the jury on the need for corroboration of accomplice testimony. In the alternative, he argues that his counsel was ineffective for failing to request such an instruction. Sornsen also appeals his conviction of aiding and abetting possession of stolen property, claiming that the district court abused its discretion in failing to give a unanimity instruction, which allowed the jury to convict him on either of two alleged acts without agreeing on which act he committed. We affirm in part, reverse in part, and remand for a new trial on the charge of aiding and abetting possession of stolen property.
Isanti County Sheriff’s Office investigators and special-response team executed a search warrant at Sornsen’s residence. They were looking for a stolen 1998 Suburban, and they obtained the warrant based on a tip that the vehicle was buried in Sornsen’s backyard and that there were weapons on the property.
Investigators found Sornsen in his garage and read him a Miranda warning. Sornsen led the investigators to where the truck was buried and a crew was called in to dig it up. As the Suburban, which was wrapped in a tarp, was unearthed, lead investigator Tim Akers noticed a strong smell of chemicals. Akers, who is trained to recognize and dismantle methamphetamine labs, recognized the smell as from chemicals used in the manufacture of methamphetamine. The deputies also discovered a stolen air compressor, valued at $25,000, behind Sornsen’s garage.
Several containers of chemicals that Akers determined were solvents commonly associated with the manufacture of methamphetamine were discovered in the unearthed vehicle. Akers decided to get a search warrant to search the property for methamphetamine production. Additional chemicals, similar to those found in the truck, were located in Sornsen’s garage and a 100-pound LP tank was buried in the garage with the head of the tank and a hose sticking out of the garage floor. Akers verified that the tank contained anhydrous ammonia, a difficult-to-obtain chemical used in the manufacture of methamphetamine. Sornsen told Akers that the tank was being stored for a friend who had been arrested for methamphetamine-related activities.
The only methamphetamine found on the property was a small amount in the pocket of Sornsen’s houseguest, Bryan Casady, who was arrested during the search. Casady pleaded guilty to possession of methamphetamine and admitted that he stole the Suburban that was buried on Sornsen’s property.
Sornsen was taken into custody and gave a statement in which he admitted that Casady and others were “cooking up some dope” in his garage about a week earlier and that he had been in the garage “when they were stirring stuff up.” Sornsen stated that he recognized from the odor that anhydrous ammonia was being used in the manufacturing process. He also admitted that he knew the Suburban was stolen.
Sornsen was charged with aiding and abetting the manufacture of methamphetamine and aiding and abetting possession of stolen property. Casady testified that Sornsen was involved in the methamphetamine-manufacturing scheme. Sornsen was convicted of both counts and was sentenced to 86 months in prison for aiding and abetting the manufacture of methamphetamine and a concurrent 15 months for aiding and abetting possession of stolen property. This appeal followed.
Sornsen was convicted of aiding and abetting the manufacture of methamphetamine under Minn. Stat. § 152.021, subd. 2a (2000). That statute provides that a person is guilty of first-degree controlled substance crime if the person “manufactures any amount of methamphetamine.” “Manufacture” is defined to include
the production, cultivation, quality control, and standardization by mechanical, physical, chemical, or pharmaceutical means, packing, repacking, tabletting, encapsulating, labeling, relabeling, filling, or by other process, of drugs.
Minn. Stat. § 152.01, subd. 7 (2000).
Under the terms of the statute, some amount of methamphetamine must be produced before a person can be guilty of violating the statute. Appellant argues that the state was required to prove that: (1) he aided and abetted someone in the process of manufacturing; (2) the process was completed; and (3) methamphetamine was the final product. Appellant concedes that there was evidence to prove that someone had engaged in the process of producing methamphetamine on his property, but he argues that there was no evidence that the process was completed or that methamphetamine was produced. We disagree.
Appellant relies on State v. Traxler, which describes the production of methamphetamine as a four-step process. 583 N.W.2d 556, 558 (Minn. 1998). The first step is to extract ephedrine from tablet material. Id. The second step is to “cook” ephedrine with iodine and red phosphorous. Id. The third step, called the “cleanup,” involves extracting the red phosphorus and adding a strong base solution and an organic solvent, resulting in liquid methamphetamine. Id. The fourth step is to convert the liquid methamphetamine into a more pure solid form by adding hydrochloric gas and boiling away remaining solvent. Id. Appellant argues that the evidence in this case only supports a finding that the first step, separation of ephedrine, had occurred, and that there was no evidence of completion of the other steps of production. Appellant points out that no methamphetamine or methamphetamine residue was found on his property except for the small amount of methamphetamine in Casady’s pocket, which was not proved to have been manufactured on appellant’s property. Appellant argues that while the evidence might have been sufficient to convict him of aiding and abetting an attempt to manufacture methamphetamine, absent proof of a completed process and some product, his conviction of aiding and abetting the manufacture of methamphetamine is not supported by the evidence.
But the state offered circumstantial evidence to support the conclusion that the manufacturing process on appellant’s property was completed. Circumstantial evidence in a criminal case is entitled to as much weight as any other kind of evidence, so long as the circumstances are consistent with the hypothesis that the defendant is guilty and inconsistent with any other rational hypothesis. State v. Matthews, 425 N.W.2d 593, 596 (Minn. App. 1988). The evidence as a whole need not exclude all possibility that the defendant is innocent; it must only make such a theory seem unreasonable. Id. The jury determines the credibility and weight of circumstantial evidence, and, as always in a sufficiency-of-the-evidence case, this court must assume that the jury disbelieved any evidence contrary to the verdict. State v. Wallace, 558 N.W.2d 469, 472 (Minn. 1997).
On appeal, appellant admits that there is evidence in the record that someone engaged in the process of producing methamphetamine on his property. In an interview with Deputy Akers, appellant admitted that he saw the separation of ephedrine in his garage and knew that anhydrous ammonia was being used to manufacture “dope.” At trial, although appellant denied that he knew methamphetamine was being manufactured in his garage, appellant testified that if anyone was manufacturing methamphetamine, it would have been Casady, who was in the garage daily. Casady, who testified that he used methamphetamine almost daily, said that he was present in appellant’s garage when methamphetamine was being manufactured and that he and appellant helped obtain the ingredients. Deputy Akers testified that chemicals found in appellant’s garage were “typical” byproducts found when a “lab” that was used to make methamphetamine is shut down. Deputy Akers testified that solvents used in methamphetamine manufacture were found on appellant’s property as well as chemicals used in the process of “cleaning” the methamphetamine. We conclude that there is sufficient evidence in the record from which the jury reasonably could have found beyond a reasonable doubt that the process of manufacturing methamphetamine on appellant’s property was completed.
Sornsen asserts that the district court erred by not including a jury instruction informing the jury that he could not be convicted on the basis of the uncorroborated testimony of an accomplice and abused its discretion by failing to give a specific unanimity instruction. District courts are allowed considerable latitude in selecting the language in jury instructions. 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). Refusal to give a jury instruction lies in the discretion of the district court and will not be reversed absent an abuse of discretion. State v. Cole, 542 N.W.2d 43, 50 (Minn. 1996). The focus of the analysis on review is on whether the refusal resulted in error. State v. Kuhnau, 622 N.W.2d 552, 555 (Minn. 2001).
Sornsen did not request an instruction on corroboration or an instruction on unanimity and did not object to the instructions given. Failure to request specific jury instructions or to object to the instructions before they are given generally waives the right to appeal on that issue. State v. Cross, 577 N.W.2d 721, 726 (Minn. 1998). But if the instructions contain plain error affecting substantial rights or an error of fundamental law, we have discretion to review despite the failure to object at trial. Id. We employ a three-prong test to determine the existence of plain error: (1) was there error, (2) that was plain, and (3) that affected substantial rights. State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998).
a. Corroboration of accomplice testimony
Minn. Stat. § 634.04 (2002) provides:
A conviction cannot be had upon the testimony of an accomplice, unless it is corroborated by such other evidence as tends to convict the defendant of the commission of the offense, and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof.
An instruction on the necessity of the corroboration of accomplice testimony must be given in any criminal case in which any witness against the defendant might reasonably be considered an accomplice to the crime. State v. Shoop, 441 N.W.2d 475, 479 (Minn. 1989). And the district court should give such an instruction in an appropriate case whether or not one is requested. State v. LaJambe, 300 Minn. 539, 541, 219 N.W.2d 917, 919 (1974).
An accomplice is one who could have been indicted or convicted of the same crimes as the defendant. Both Casady and Sornsen were charged with possessing the stolen Suburban. And although Casady was not charged with aiding and abetting the manufacture of methamphetamine, his testimony established that he might reasonably be considered Sornsen’s accomplice in that crime. Failure to give the instruction was error and that error is plain.
But Casady’s testimony was more than sufficiently corroborated by independent evidence connecting appellant to the methamphetamine-manufacturing scheme and possession of the stolen Suburban. Sornsen’s own admissions that he saw Casady and others making methamphetamine in his garage the week before corroborates Casady’s testimony about Sornsen’s involvement in the manufacture of methamphetamine. And the physical evidence of the buried anhydrous-ammonia tank protruding through the garage floor, which Sornsen admitted he had no legitimate use for, and the other chemicals located on his property showed that Sornsen helped obtain the ingredients for the manufacture of methamphetamine. Sornsen’s admission that he knew the Suburban was stolen and the fact that he knew where it was buried on his property corroborated Casady’s testimony about the stolen Suburban.
Because the record contains more-than-adequate corroboration of Casady’s testimony, the district court’s failure to give the instruction did not affect the verdict and does not constitute plain error affecting Sornsen’s substantial rights.
Jury verdicts in criminal cases must be unanimous. Minn. R. Crim. P. 26.01, subd. 1(1); State v. Hart, 477 N.W.2d 732, 739 (Minn. App. 1991), review denied (Minn. Jan. 16, 1992). The state argues that there is no authority that compels a district court to give a specific unanimity instruction in a case of aiding and abetting possession of stolen property. But when jury instructions allow for the possibility of significant disagreement among jurors as to what criminal act or acts the defendant committed, the instructions violate the defendant’s right to a unanimous verdict. State v. Begbie, 415 N.W.2d 103, 105 (Minn. App. 1987), review denied (Minn. Jan. 20, 1988). “[U]nanimity is not required with respect to the alternative means or ways in which the crime can be committed.” State v. Stempf, 627 N.W.2d 352, 354-55 (Minn. App. 2001) (quoting Begbie, 415 N.W.2d at 106). But the jury must unanimously agree on which acts the defendant committed if each act itself constitutes an element of the crime. Id. at 355.
Sornsen was charged with only one count of aiding and abetting possession of stolen property, but the state introduced evidence that Sornsen aided and abetted possession of both the stolen Suburban and the stolen air compressor. Sornsen argues that the jury instructions did not require the jury to specify which act of aiding and abetting possession of stolen property supported the guilty verdict. The district court instructed the jury on the offense of aiding and abetting possession of stolen property using “the 1998 Chevrolet Suburban and/or the Ingersol-Rand compressor” to identify the property.
We have cautioned against using “either/or” jury instructions because they are unclear and potentially raise doubt about the unanimity of the jury verdict. Id. In Stempf, we addressed the issue of the state asserting one count with two different factual scenarios as alternatives for providing a single element of a crime and concluded that
[n]othing in Minnesota law permits trial on one count of criminal conduct that alleges different acts without requiring the prosecution to elect the act upon which it will rely for conviction or instructing the jury that it must agree on which act the defendant committed.
Id. at 356. Failing to instruct the jury in such a way that the jury was required to unanimously agree on the specific act that constituted the crime of aiding and abetting possession of stolen property was plain error.
The state suggests that there is no reasonable likelihood that a different instruction would have had a significant effect on the verdict because the evidence is overwhelming that Sornsen aided and abetted possession of the stolen Suburban. Casady testified that he stole the Suburban as part of an insurance-fraud scheme and that Sornsen knew he was going to steal it and told him to bring it to his residence where Sornsen helped Casady bury the vehicle. Sornsen admitted that he suspected the vehicle was stolen and that he knew it was buried in his backyard with part of its back end sticking out of the ground. Sornsen also knew that the truck had been disassembled before it was buried and that parts were stored in various locations on his property.
Nonetheless, a defendant’s right to a unanimous jury is a fundamental tenet of our criminal law. See Minn. R. Crim. P. 26.01, subd. 1(5). We determine here that failing to instruct the jury to agree on the specific act for which appellant was convicted deprived appellant of a unanimous verdict, a substantial right. We therefore vacate the conviction for aiding and abetting possession of stolen property and remand for a new trial on that charge.
Affirmed in part, reversed in part, and remanded.