This opinion will be unpublished and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,
Candi Jean Northburg Spadino,
Crow Wing County District Court
File No. K8-00-1966
Mike Hatch, Attorney General, Kristine L. Eiden, Chief Deputy Attorney General, 102 State Capitol, St. Paul, MN 55155; and
Donald F. Ryan, Crow Wing County Attorney, 322 Laurel Street, Brainerd, MN 56401 (for respondent)
John M. Stuart, State Public Defender, Marie Wolf, Assistant Public Defender, 2221 University Avenue S.E., Suite 425, Minneapolis, MN 55414 (for appellant)
Considered and decided by Minge, Presiding Judge; Kalitowski, Judge; and Shumaker, Judge.
Appellant challenges on several grounds her conviction of and sentence for conspiracy to commit first-degree controlled-substance crime. While we find that there was sufficient evidence to support the conviction and that admission of certain evidence did not amount to reversible error, we conclude that the district court’s jury instructions impermissibly shifted the burden of proof to defendant. Accordingly, we reverse.
On August 11, 2000, law enforcement obtained a search warrant after receiving information that Scott Litzau was manufacturing methamphetamine. Local police officers, assisted by the Crow Wing County Tactical Team, executed the warrant at Litzau’s home. The search produced numerous items used in the manufacturing process. While the team was executing the warrant, appellant’s boyfriend William Goetze arrived at the residence in a truck that contained several items used in methamphetamine manufacturing.
Appellant Candi Jean Northburg Spadino also drove up to Litzau’s home during the search. Upon receiving her consent, officers searched her van and recovered approximately 240 pseudoephedrine pills, an over-the-counter cold pill commonly used to make methamphetamine, and a container of Inositol, another over-the-counter substance commonly used in the manufacturing process. Appellant also consented to the search of her residence where officers found a propane cylinder and a gallon of muriatic acid in her garage. Appellant maintains that she purchased or stored the various items at the request of Goetze and was unaware they were being used to manufacture methamphetamine. A jury convicted appellant of conspiracy to commit first-degree controlled-substance crime in violation of Minn. Stat. §§ 152.021, subd. 2a, .096, subd. 1 (2000).
The first issue is whether there was sufficient evidence to convict appellant of conspiracy to commit a controlled-substance crime in the first degree. The standard for overturning a jury verdict is a high one. State v. Huss, 506 N.W.2d 290, 292 (Minn. 1993). In analyzing a challenge to the sufficiency of the evidence, an appellate court examines the evidence presented in the record, along with legitimate inferences from that evidence, to determine whether the jury could have concluded that the state met its burden of proving beyond a reasonable doubt that the defendant was guilty of each of the charged offenses. State v. Moore, 481 N.W.2d 355, 360 (Minn. 1992). This court reviews the evidence in the light most favorable to the jury’s verdict. Dale v. State, 535 N.W.2d 619, 623 (Minn. 1995). The court must assume that the jury believed the state’s witnesses and disbelieved evidence to the contrary. Id.
When a conviction is based only on circumstantial evidence, it warrants stricter scrutiny. See Moore, 481 N.W.2d at 360. Under the stricter review, an appellate court must determine whether the evidence, when taken as a whole, leads “so directly to the guilt of the accused as to exclude, beyond a reasonable doubt, any reasonable inference other than that of guilt.” Id.(quotation omitted). When reviewing a conviction based on circumstantial evidence, however, a court must remember that circumstantial “evidence is entitled to the same weight as any evidence so long as the circumstances proved are consistent with the hypothesis that the accused is guilty and inconsistent with any rational hypothesis except that of guilt.” State v. Profit, 591 N.W.2d 451, 467 (Minn. 1999) (quotation omitted). Furthermore, the fact-finder determines the credibility and weight of circumstantial evidence and the reviewing court must continue to assume that the fact-finder believed the state’s witnesses. State v. Wallace, 558 N.W.2d 469, 472 (Minn. 1997).
Appellant argues that the state lacked sufficient evidence to convict her of conspiracy to commit a first-degree controlled-substance crime in violation of Minn. Stat. § 152.021, subd. 2a, .096, subd. 1 (2000). The controlled-substance crime involved here is the manufacturing of any amount of methamphetamine. Minn. Stat. § 152.021, subd. 2a. To prove conspiracy, the state must show an agreement between two or more people to commit a crime, and an overt act in furtherance of the conspiracy. Minn. Stat. § 609.175, subd. 2 (2000); State v. Kuhnau, 622 N.W.2d 552, 556 (Minn. 2001).
[A] conspiracy need not be established by direct evidence. It may be inferred from the circumstances. Nor is it necessary to show a formal agreement to commit the crime charged. Where the evidence permits an inference of concert of action to accomplish a given unlawful result, as where several persons commit separate acts which form parts of a connected whole, an inference of conspiracy - that there was concert in both planning and execution - is permissible.
State v. Burns, 9 N.W.2d 518, 521-22 (Minn. 1943).
The record before us reflects that the state offered sufficient evidence and testimony to prove appellant’s involvement in the conspiracy. Special Agent Thomas Wyatt testified that law enforcement executed a search warrant on Litzau’s property based on information that he was manufacturing methamphetamine. Litzau was a friend of both appellant and appellant’s boyfriend, Goetze. Upon execution of the search warrant, officers found many items used in the manufacture of methamphetamine including: several scales, coffee filters, a five-gallon container of the solvent toluene, an empty box of cold pills, parts of lithium batteries, vinyl tubing, muriatic acid, and four propane tanks, one with a modified valve. Special Agent Wyatt testified to his extensive training and experience investigating approximately 85 methamphetamine lab cases and concluded that the items seized from Litzau’s property were consistent with manufacturing methamphetamine. Agent Wyatt also testified that surveillance equipment, like that found in Litzau’s home, is common to places where methamphetamine is manufactured and appellant admitted to staying the night in the room with the equipment. During the execution of the search warrant, Goetze arrived with manufacturing items in his truck, including coffee filters, a propane tank with a modified valve, vinyl tubing, a half-faced respirator, three gallons of toluene, and a gallon of muriatic acid.
The evidence shows that when appellant arrived, she momentarily stopped her van in the middle of the road outside Litzau’s property. Appellant admitted that she was aware Litzau had previously manufactured methamphetamine. After appellant consented to a search of her vehicle, officers found 240 pseudoephedrine cold pills. Appellant first stated she used them for allergies but later said she purchased them at Goetze’s request. Officers also seized a container of Inositol, which appellant said she purchased at a health store and used for her own hair and nail growth. Agent Wyatt testified that, upon further questioning, appellant’s story changed and that she contended she possessed the container for Goetze. Officers proceeded to appellant’s residence with her consent, and a search of her garage revealed a 20-pound propane cylinder fitted with a straight pipe and ball valve and cap, and a one-gallon container of muriatic acid. Appellant admitted to being aware that ingestion of the quantity of pills she purchased would be lethal and to being aware of the chemicals in her garage. Goetze testified to appellant’s addiction to methamphetamine. Officers also found evidence that appellant had signed a receipt for two gallons of toluene.
Appellant points to several cases to argue that she was an innocent carrier because she had no knowledge of the methamphetamine manufacturing and there is no direct evidence of an agreement. Appellant argues that this case is similar to State v. Hatfield, where the supreme court overturned a conspiracy conviction because there was no evidence that the defendant had any knowledge of the contents of the containers his alleged co-conspirator asked him to deliver and therefore was no reasonable inference of an agreement. 639 N.W.2d 372, 377 (Minn. 2002). Appellant maintains that because she did not know of the uses for the materials found in her vehicle and garage, and was not involved in the manufacturing process, there is insufficient evidence to show that an agreement existed.
Appellant’s argument asks this court to view the evidence in a light most favorable to her and accord her testimony greater credibility. Here, when viewing the evidence in the light most favorable to the state, and assuming that the jury believed the state’s witness, we find there was sufficient evidence for the jury to make legitimate inferences to conclude that the state met its burden of proof beyond a reasonable doubt.
The next issue we face is whether the district court erred in admitting evidence regarding local law enforcement’s use of a tactical team to execute the search warrant and evidence referring to the “Nazi method” of manufacturing methamphetamine. “Evidentiary rulings rest within the sound discretion of the trial court and will not be reversed absent a clear abuse of discretion. On appeal, the appellant has the burden of establishing that the trial court abused its discretion and that appellant was thereby prejudiced.” State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003). “Reversal is warranted only when the error substantially influences the jury’s decision.” State v. Nunn, 561 N.W.2d 902, 907 (Minn. 1997).
Where a defendant fails to object to the admission of evidence, the defendant is deemed to have waived the issue. State v. Hebert, 295 Minn. 522, 523, 202 N.W.2d 884, 884 (1972). But, this court may still review the issue under the plain-error standard. See State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998). “The plain error standard requires that the defendant show: (1) error; (2) that was plain; and (3) that affected substantial rights.” State v. Strommen, 648 N.W.2d 681, 686 (Minn. 2002). “If those three prongs are met, we may correct the error only if it seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.” Id. (quotations omitted).
The district court overruled appellant’s objection to use of the phrase “Nazi method” to identify a process for manufacturing methamphetamine. We note that the phrase “Nazi method” was used four times at trial, and only as a reference to one distinct method of manufacturing methamphetamine. We cannot say the word “Nazi” was used gratuitously as asserted by appellant. It is a common reference in the drug enforcement community. Nor can we say that use of the phrase “Nazi method” was used in such a derisive or accusatory fashion or so frequently that it substantially influenced the jury’s decision.
Although she failed to object at trial, appellant argues that evidence that police called a tactical team to execute the search warrant because appellant had a handgun permit was prejudicial. We note that the reference to the use of the tactical team appears only twice in the record and only in the context of explaining why the team was used in executing the search warrant. Appellant does not show why admission of this evidence was clear error. Accordingly, we conclude that the admission of evidence regarding the use of the tactical team issue was waived for the purposes of appeal.
In sum, we conclude that the admission of both the phrase “Nazi method” and use of the tactical team was not an abuse of discretion and did not produce a cumulative prejudicial effect warranting reversal.
The next issue is whether the district court judge improperly shifted the burden of proof to appellant in the jury instructions. 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). The general rule has been that “a single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge.” State v. LaForge, 347 N.W.2d 247, 253 (Minn. 1984) (quotation omitted). The reviewing court must examine the instructions 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.” Kuhnau, 622 N.W.2d at 556. “Misstatements of the burden of proof are highly improper . . . .” State v. Hunt, 615 N.W.2d 294, 302 (Minn. 2000).
The Due Process Clause requires that the state prove every element of the charged crime beyond a reasonable doubt. State v. Clausen, 493 N.W.2d 113, 116 (Minn. 1992). The burden of proof may not be impermissibly shifted to the defendant. State v. Auchampach, 540 N.W.2d 808, 816 (Minn. 1995). Such a shift of the burden violates the defendant’s due process rights. Id.
Appellant argues that the district court shifted the burden of proof to her through several misstatements it made to the jury. In the first instance, while the judge was reading the jury its instructions, he stated the following:
Presumption of innocence: Defendant is presumed innocent of the charge made. This presumption remains with the Defendant unless and until the Defendant has been proved guilty beyond a reasonable doubt. That the Defendant has been brought to Court by the ordinary processes of law and is on trial should not be considered by you as in any way suggesting guilt. The burden of proving guilt is on the Defendant (sic). The Defendant does not have to prove innocence.
(emphasis added). Following this statement, the prosecutor asked if she and appellant’s counsel could approach the bench. A discussion took place off the record, after which the judge repeated the instruction, replacing the last two sentences with: “The burden is on the State; the Defendant does not have to prove innocence.”
Upon completion of closing arguments by both parties, the judge gave the jury final instructions regarding the jury verdict forms. The judge stated:
Now, if you find that the State has proved beyond a reasonable doubt the Defendant is guilty of the crime of conspiracy to commit a controlled substance crime in the first degree, you must use this verdict form.
If you read – find the Defendant [sic] has failed to prove beyond a reasonable doubt that the Defendant is guilty of the crime of conspiracy . . . you will use this verdict form.
Now, if you find the Defendant (sic) has proved beyond a reasonable doubt the Defendant is guilty of the crime of possession . . . you will use this form. And if you find the Defendant (sic) has failed to prove beyond a reasonable doubt the Defendant is guilty of the crime of possession . . . you will use the not guilty form.
(emphasis added). Appellant voiced no objection to the judge’s statements.
Where appellant has failed to object in the district court, this court may review only where (1) the instructions contain error; (2) that is plain; and (3) the error affects the defendant’s substantial rights. Griller, 583 N.W.2d at 740. The appellant must show that the error was prejudicial and affected the outcome of the case. Id. at 741. Error is prejudicial if there is a reasonable likelihood that the error would have had a significant effect on the jury’s verdict or otherwise affect the outcome of the case. Id. When this test is satisfied, this court must then decide whether or not it should address the error in the name of fairness, and to safeguard the integrity of the judicial process. Id. at 740.
There is little question that the judge’s statements here, replacing “Defendant” where “State” should appear, and thus announcing that the appellant had the burden of proof, was plain error. Repeatedly telling the jury that the defendant has the burden of proof is clearly a misstatement of the law even if the statement refers to proof of guilt. This error also significantly prejudiced appellant because confusing the burden of proof violated her due process rights. Further, a jury’s confusion caused by the judge’s misstatements could very likely affect the outcome of the case. We can think of few errors more necessary for this court to address in order to safeguard the integrity of the judicial process. We conclude that appellant satisfies the Griller test, thus allowing this court to review the jury instruction issue she raises.
The next question becomes whether the jury instructions as a whole fairly and adequately explain the law of the case or instead materially misstate the law. Although the judge correctly stated the burden of proof twice and noted the presumption of innocence, it must be weighed against the four other instances where the judge shifted the burden to the defendant and improperly identified the defendant with the burden of proof. While it might be presumed that the jurors had available written jury instructions containing correct statements of law upon adjourning to deliberate, we note that the record on appeal does not include a copy or any indication that written instructions were actually provided to the jury. Even assuming the jurors did receive written instructions that accurately represented the state’s burden, jurors are not required to read the written instructions and there is no way for the court to know if they in fact did. Further, while the judge corrected himself the first time he misstated the burden of proof, it was without any explanation to the jury that a mistake had been made. The instructions misstate the law, are conflicting, and are confusing.
The state counters by citing to caselaw where a misstatement of the burden of proof was not found to be sufficient to prejudice the defendant. Specifically, the state points to State v. Olek, 288 Minn. 235, 239-40, 179 N.W.2d 320, 324 (1970), where the supreme court found no error had occurred when viewing the instructions as a whole. But, in Olek, the court was faced with one questionable statement regarding the burden of proof. Id. at 238-39, 179 N.W.2d at 323-24. Here, two-thirds of the times the district court addressed the burden of proof, it shifted the burden to appellant. We cannot say this is harmless error.
Because the district court repeatedly misstated the burden of proof at trial, because these misstatements went largely without correction and explanation, and because the jury instructions as a whole do not appear to be sufficient to outweigh the impact of the judge’s misstatements, we conclude that the district court committed reversible error and appellant is entitled to a new trial.
Finally, appellant argues that the district court failed to consider factors that justify a departure from the sentencing guidelines and asks for a reduction in sentence. Due to the disposition of this case, we do not address this issue other than to note that in any retrial, if appellant is convicted, the degree of her culpability and the level of her active participation in the conspiracy should be considered.