This opinion will be unpublished and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,
Otter Tail County District Court
File No. K7-02-66
Mike Hatch, Attorney General, Kristen M. Olsen, Assistant Attorney General, 1200 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2130 (for respondent)
John M. Stuart, State Public Defender, Marie Wolf, Assistant Public Defender, 2221 University Avenue, Suite 425, Minneapolis, MN 55414 (for appellant)
Considered and decided by Stoneburner, Presiding Judge; Kalitowski, Judge; and Halbrooks, Judge.
U N P U B L I S H E D O P I N I O N
Appellant Spiral Lightninghawk challenges his conviction of conspiracy to commit a controlled substance crime in violation of Minn. Stat. § 152.096, subd. 1 (2002) and Minn. Stat. § 152.021, subd. 2a (2002), arguing that the district court erred in its jury instruction, and that the evidence does not support the conviction. We affirm.
District courts are allowed “considerable latitude” in the selection of language for the jury instructions. State v. Baird, 654 N.W.2d 105, 113 (Minn. 2002). 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). A defendant’s failure to object to instructions before they are given to the jury constitutes a waiver of the right to appeal. State v. Cross, 577 N.W.2d 721, 726 (Minn. 1998). But a reviewing court can reverse if the instructions constituted plain error, or were misleading or confusing on fundamental points of law. Baird, 654 N.W.2d at 113. Plain error is: (1) error; (2) that is plain; and (3) that affects substantial rights. State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998). An appellant bears the “heavy burden” of showing that the error affects substantial rights, which is satisfied if the appellant shows that the error was prejudicial and affected the outcome of the case. Id. at 741.
Here, the district court gave the jury several instructions at the close of trial, including CRIMJIG 5.06 (conspiracy – defined), CRIMJIG 5.07 (conspiracy – elements), CRIMJIG 5.08 (overt act, defined), CRIMJIG 5.09 (completed crime not necessary), CRIMJIG 5.10 (overt act not agreed to by the defendant), CRIMJIG 5.11 (nature of agreement required), CRIMJIG 5.12 (conspiracy with one who intends crime not be committed), and CRIMJIG 5.14 (necessity of knowledge of purpose). The court also recited CRIMJIG 4.03 (effect of nonconviction of other person), which provides:
If the defendant aided, advised, hired, counseled, or conspired with another, or otherwise procured the commission of a crime by another person, and the crime was committed, the defendant is guilty of the crime. You are not to concern yourselves with what action, if any, was taken against the other person.
Appellant did not object to the district court’s recitation of CRIMJIG 4.03. But appellant now contends that the district court committed reversible error because that instruction was misleading and confusing. Specifically, appellant contends that because of the instruction the jury may have convicted him of aiding and abetting, a crime for which he was not charged, instead of conspiracy. See State v. Gisege, 561 N.W.2d 152, 159 (Minn. 1997) (concluding that it is a fundamental error to convict a defendant of a crime for which he was not charged). We disagree.
The record indicates that the district court included CRIMJIG 4.03 to instruct the jurors that they were to disregard what legal action, if any, was taken against appellant’s alleged co-conspirator, Russell Mostad. The jury was properly instructed on the elements of the crime of conspiracy. Although CRIMJIG 4.03 includes language suggesting accomplice liability, the instruction must be construed as a whole. See Flores, 418 N.W.2d at 157. And there is no evidence in the record that supports appellant’s contention that the jury was confused and may have convicted him of aiding and abetting. Therefore, we conclude that the district court did not commit plain error by including the instruction.
In considering a claim of insufficient evidence, this court’s review is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, is sufficient to allow the jurors to reach the verdict that they did. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). 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). The reviewing court must assume the jury believed the state’s witnesses and disbelieved any evidence to the contrary. State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989). This is especially true when resolution of the matter depends mainly on conflicting testimony. State v. Pieschke, 295 N.W.2d 580, 584 (Minn. 1980). The reviewing 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 reasonably conclude the defendant was guilty of the charged offense. State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).
To convict a defendant of conspiracy to manufacture methamphetamine, the state must prove beyond a reasonable doubt that: (1) the defendant entered into an agreement with another to manufacture methamphetamine; and (2) the defendant or another party to the conspiracy committed an overt act with the purpose of furthering the conspiracy. Minn. Stat. §§ 609.175, subd. 2, 152.096, subd. 1, .021, subd. 2a (2002).
“Conspiracy need not be established by direct evidence, but may be inferred from the circumstances.” State v. Watson, 433 N.W.2d 110, 114-15 (Minn. App. 1988) (citation omitted), review denied (Minn. Feb. 10, 1989). Thus, a jury may infer from the evidence presented that a defendant acted with another to accomplish the agreed-upon criminal objective. Id. at 114. The agreement required for a conspiracy must be shown by evidence that objectively indicates an agreement. State v. Hatfield, 639 N.W.2d 372, 376 (Minn. 2002) (concluding that appellant’s possession of drug paraphernalia was insufficient to support his conviction for conspiracy to manufacture methamphetamine). Where the evidence permits an inference of concert of action to accomplish an unlawful result, as where several individuals commit separate acts which form parts of a connected whole, an inference of conspiracy is permissible. State v. Burns, 215 Minn. 182, 189, 9 N.W.2d 518, 521-22 (1943).
Appellant argues that even if he participated in some of the preparation of manufacturing methamphetamine, there is insufficient evidence of an agreement between him and Mostad to manufacture the drug. We disagree. Here, direct and circumstantial evidence establishes an agreement. Mostad’s estranged wife, Katherine Mostad, testified that appellant was staying as a guest at Mostad’s residence at the time of his arrest. Terry Ciancio, Mostad’s live-in friend, testified that he witnessed Mostad agree to teach appellant how to manufacture methamphetamine if appellant gave Katherine Mostad a certain amount of money every time he “cooked a batch.” Ciancio also testified that appellant agreed to the deal. At the time, Mostad was on medical release from jail while charges were pending against him for an earlier incident involving the manufacture of methamphetamine. According to Ciancio, Mostad made the agreement because he believed he was going to prison, and he wanted to provide for his wife and sons while he was gone.
A reasonable jury could also infer that an agreement existed between appellant and Mostad based on appellant’s presence at the Mostad residence and his involvement in the manufacture of methamphetamine. Ciancio testified that on the day before law enforcement officers executed a search warrant on the Mostad residence, both appellant and Mostad were at the residence when he arrived in the afternoon. Ciancio testified that he observed a white powder in the kitchen that he suspected was ephedrine or pseudoephedrine and he smelled toluene. These are ingredients used to manufacture methamphetamine. Ciancio also testified that Mostad asked him if he could obtain anhydrous ammonia for Mostad as Ciancio had on several occasions in the past. At trial, a law enforcement official testified that while most ingredients needed for the manufacture of methamphetamine are common household items and solvents, anhydrous ammonia is difficult to obtain.
Katherine Mostad testified that later that same day she arrived at the Mostad residence, and appellant and Mostad were in the kitchen. She testified that (1) she smelled a strong chemical smell in the house and observed white powder on a piece of glass on top of the dishwasher in the kitchen; (2) she left to watch television; (3) when she returned to the kitchen several hours later, the piece of glass with the white powder was no longer on top of the dishwasher; and (4) there were jars underneath the kitchen table that were not usually there. Together, Katherine Mostad and Ciancio notified law enforcement of their suspicions that Mostad and appellant were manufacturing methamphetamine. Based on this evidence, we conclude that the evidence objectively indicates an agreement, and therefore, is sufficient to support appellant’s conviction.
Appellant also argues that the evidence is insufficient to support his conviction because Ciancio and Katherine Mostad are not credible witnesses. But it is the exclusive role of the jury to determine the weight and credibility of witness testimony. Folkers, 581 N.W.2d at 327. And we must assume the jury believed the state’s witnesses and disbelieved any evidence to the contrary. Moore, 438 N.W.2d at 108.
Further, the substantial physical evidence recovered from the Mostad property also supports appellant’s conviction. A law enforcement official testified that all the ingredients necessary to manufacture methamphetamine, except anhydrous ammonia, were discovered, including: pseudoephedrine already extracted from cold tablets, lithium batteries, toluene, muriatic acid, a hot plate, paper towels, coffee filters, glass jars – some with liquids already in them, a measuring cup, and other items. While law enforcement officials discovered some ingredients inside Mostad’s house and outside in a shed, the majority of the items were discovered in the back of a pickup truck under appellant’s control. Law enforcement officials also discovered coffee filters and plastic baggies in a coat belonging to appellant. Based on the direct and circumstantial evidence presented in this case, we conclude that the evidence is sufficient to support appellant’s conviction.