This opinion will be unpublished and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,
Martin County District Court
File No. K1-02-886
Mike Hatch, Attorney General, Tibor M. Gallo, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Terry W. Viesselman, Martin County Attorney, 123 Downtown Plaza, Fairmont, MN 56031-1726 (for respondent)
John M. Stuart, State Public Defender, Roy G. Spurbeck, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)
Considered and decided by Kalitowski, Presiding Judge; Toussaint, Chief Judge; and Wright, Judge.
U N P U B L I S H E D O P I N I O N
Appellant challenges his convictions of aiding and abetting (1) attempted second-degree murder; (2) attempted first-degree aggravated robbery; and (3) first-degree assault. Appellant argues that the district court erred in (1) instructing the jury on the charged offenses; (2) answering the jury’s questions during deliberations; and (3) instructing the jury that appellant had the right not to testify where appellant did not request the instruction. And in his pro se brief, appellant contends that he was denied effective assistance of counsel and claims other errors. We affirm.
D E C I S I O N
District courts are allowed “considerable latitude” in the selection of language for 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. State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998); State v. Butler, 295 N.W.2d 658, 659 (Minn. 1980). Plain error is: (1) error; (2) that is plain; and (3) that affects substantial rights. Griller, 583 N.W.2d at 740. 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, appellant failed to object to any of the jury instructions. And after the district court instructed the jury, the district court specifically asked the prosecutor and the defense attorney if they wanted to draw the court’s attention to any errors or omissions in the instructions, and both attorneys responded no. Therefore, our review is limited to determining whether the instructions constituted plain error or were misleading or confusing on fundamental points of law. Id. at 740.
Appellant first contends that the district court erred by failing to instruct the jury on the elements of attempted first-degree murder and by not stating that appellant was charged with aiding and abetting this offense. But appellant cannot establish that he was prejudiced by this instruction because he was found not guilty of this charge.
In challenging his conviction of aiding and abetting attempted second-degree murder, appellant contends that the district court erred by failing to instruct the jury on the elements of attempted second-degree murder. Specifically, appellant claims that the district court committed plain error by failing to instruct the jury that a defendant must take a substantial step toward completion of the crime to be guilty of the offense. But after the district court gave the jury some general instructions, the court instructed the jury on the meaning of an attempted crime. The district court explained that “a person is guilty of attempt[ing] to commit a crime when, with intent to commit the crime, the person does an act that is a substantial step toward, and more than mere preparation for, the commission of the crime.” The district court also explained that in determining whether the person has taken a substantial step toward completion of the crime, the jury “must distinguish between mere preparation for and actually beginning to commit the criminal act on the other. Mere preparation, which may consist of planning the offense or of obtaining or arranging the means for its commission, is not sufficient to constitute an attempt.”
While the district court did not reiterate the definition of attempt in instructing the jury on the second-degree murder offense, the district court’s general language and the placement of the definition of attempt in the jury instructions indicate that the court’s definition of attempt applied to all the charges against appellant that involved an attempted crime. Therefore, because the district court properly defined an attempted crime, we conclude that the district court did not err.
Appellant also contends that the district court erred in instructing the jury on aiding and abetting attempted first-degree aggravated robbery by failing to instruct the jury that the charged offense was an attempt. We agree that the district court did not state that appellant was charged with aiding and abetting the attempted robbery when it was describing the elements of the offense. But the district court and the attorneys informed the jury several times that appellant was charged with aiding and abetting the attempted offense, and the verdict form stated that the charged offense was an attempt. And, as explained above, the court instructed the jury on the definition of an attempted crime. Therefore, even if the district court erred in not reiterating that appellant was charged with aiding and abetting an attempted aggravated robbery rather than a completed robbery, we conclude that such an error was harmless. See Flores, 418 N.W.2d at 155 (stating that jury instructions must be considered as a whole and not in isolation).
Appellant also claims that the district court erred by not defining the term robbery. A defendant is guilty of aggravated robbery if (1) the defendant took something from the victim (or in the victim’s presence) knowing that the defendant was not entitled to take it; (2) the defendant used force or the threat of imminent force against the victim to overcome resistance or to compel acquiescence in the taking or carrying off of the property; (3) the defendant was armed with a dangerous weapon (or any article used or fashioned in a manner to lead the victim to reasonably believe the article was a dangerous weapon) or inflicted bodily harm upon the victim; and (4) the defendant’s act took place on the alleged date and in the alleged county. Minn. Stat. §§ 609.24, .245, subd. 1 (2002); 10 Minnesota Practice, CRIMJIG 14.04 (1999).
The district court essentially instructed the jury on the third element of the offense by stating that a person is guilty of aggravated robbery if he or she commits a robbery while armed with a dangerous weapon or any article used or fashioned as a dangerous weapon, or inflicts bodily harm upon another. The district court did not explain the first two elements of the crime, which together constitute simple robbery. Generally, a defendant is entitled to have all the elements of an offense submitted to the jury even if the evidence to those elements is not contradicted. State v. Wick, 331 N.W.2d 769, 772 (Minn. 1983). But an instruction that fails to present all elements of an offense is not necessarily prejudicial. Id. Further, the rule requiring objection at trial generally prevails even as to this type of error. Id.
Here, the state contends, and we agree, that the term robbery is commonly used and understood such that a layperson knows that a person commits robbery when he or she takes something, knowing that he or she is not entitled to take it, with force or the threat of force. Therefore, even if the district court erred by failing to define robbery, we conclude that on this record such error did not affect appellant’s substantial rights.
Appellant also contends that the district court erred in instructing the jury on aiding and abetting a first-degree assault by failing to define assault. A defendant is guilty of first-degree assault if (1) the defendant assaulted the victim; (2) the defendant inflicted great bodily harm on the victim; and (3) the defendant’s assault took place on the alleged date in the alleged county. Minn. Stat. § 609.221, subd. 1 (2002); 10 Minnesota Practice, CRIMJIG 13.04 (1999). Assault is defined as (1) an act intended to cause fear in another of immediate bodily harm or death; or (2) the intentional infliction of or attempt to inflict bodily harm upon another. Minn. Stat. § 609.02, subd. 10 (2002); 10 Minnesota Practice, CRIMJIG 13.01 (1999).
Here, the district court described the second element of first-degree assault, but did not define assault. But, as with its failure to define robbery, even if the district court erred in not defining assault, appellant fails to articulate any argument or provide support to show that he was prejudiced by this alleged error. And there is substantial evidence in the record that shows that in the course of robbing and attempting to kill the victim, Shane Jensen intended to cause fear in the victim of immediate death or bodily harm and/or Jensen intentionally inflicted bodily harm on the victim. Thus, as with his other claims of error, appellant has failed to show that he was prejudiced. In conclusion, considering the jury instructions as a whole, the district court did not commit plain error in instructing the jury on the charged offenses.
Appellant argues that the district court erred in responding to the questions the jury asked during its deliberations. During jury deliberations in a criminal case, the judge and jury should not communicate except in open court, and where practicable, in the presence of counsel and the defendant. State v. Schifsky, 243 Minn. 533, 543, 69 N.W.2d 89, 96 (1955). And when a jury asks questions during deliberations, the district court has discretion to decide whether to amplify or reread previous instructions or give no response at all. State v. Murphy, 380 N.W.2d 766, 772 (Minn. 1986).
Here, during deliberations, the jury asked the district court to answer some additional questions. On the record, the district court stated that the court and the attorneys had met and tried to provide some answers and the court wanted to relay those answers to the jury. In response to the jury’s specific questions, the court stated that (1) a crime ends once it is committed, but the jury could consider the actions after the commission of the crime to decide whether appellant aided and abetted the commission of the crime; (2) if Jensen committed a crime, appellant was not required to attempt to stop the crime, assist the police, or turn Jensen into the police, but the jury could consider whether appellant was present at the time of the commission of the crime without disapproving or opposing it in considering whether he was guilty of aiding and abetting that offense; and (3) it was not necessary for appellant to have prior knowledge of Jensen’s intention to commit a crime to be guilty of aiding and abetting. The jury also requested a better explanation of aiding and abetting, and the district court instructed the jury to reread the previously given written instructions.
After answering the jury’s questions, the district court asked if the attorneys wanted to add anything or make any corrections. Appellant’s attorney approached the bench, and a discussion was held off the record. Back on the record, the court modified its answer regarding whether appellant had to stop the crime or help the police by cautioning the jury to remember the court’s earlier instructions on aiding and abetting.
Appellant first contends that the jury’s questions show that the district court’s initial instructions defining aiding and abetting were confusing and misleading. But appellant did not object to the court’s instructions on aiding and abetting; nor did he propose any additions or changes. Therefore, this court’s review is limited to determining whether the district court committed plain error. Griller, 583 N.W.2d at 740.
Here, the district court explained that appellant was guilty of a crime committed by another person if he intentionally aided the other person in committing it or intentionally advised, hired, consulted, conspired with, or otherwise procured the other person to commit it. And if appellant aided and abetted another person in committing a crime, he was also guilty of any crime the person committed while trying to commit the intended crime, if the other crime was reasonably foreseeable as a probable consequence of trying to commit the intended crime. The district court further instructed the jury that in order to convict appellant of aiding and abetting, the state did not have to prove that appellant actively participated in the overt act that constituted the primary offense, but more than passive acquiescence or inaction was required. Therefore, in determining whether the appellant was guilty of aiding and abetting, the jury could consider appellant’s presence, his role in the crime, his lack of objection or surprise, his flight from the scene with the principal, and his companionship or association with the principal before and after the crime. But the district court warned the jury that appellant was guilty of a crime only if the other person committed a crime; he was not liable for aiding and abetting a crime unless the person committed some crime, including an attempt.
The district court’s instructions essentially followed the standard jury instructions. 10 Minnesota Practice, CRIMJIG 4.01 (1999). CRIMJIG 4.01 provides that a “defendant is guilty of a crime committed by another person when the defendant has intentionally aided the other person in committing it, or has intentionally advised, hired, counseled, conspired with, or otherwise procured the other person to commit it.” Given the district court’s detailed instruction and considering the instructions as a whole, we cannot say that the district court’s instructions on aiding and abetting misled the jury or were confusing on fundamental points of law.
Appellant also claims that although the district court was within its discretion in telling the jurors to reread the written instructions, the court erred by impermissibly emphasizing parts of the instructions. We disagree. A district court has discretion to amplify or reread instructions or do nothing at all. Murphy, 380 N.W.2d at 772.
Appellant also claims that the district court seriously misstated the definition of aiding and abetting by responding that a person did not need to have prior knowledge of another’s intention to commit a crime to be guilty of aiding and abetting. Appellant argues that a defendant is guilty of aiding and abetting an offense only if the state proves that he or she intentionally aids, advises, hires, counsels, conspires with, or otherwise procures the other to commit the crime, and that the court’s answer improperly allows the jury to convict him of aiding and abetting Jensen’s crimes even if he did not know Jensen intended to commit the crimes. Appellant goes on to analogize his conduct to that of an innocent taxi-cab driver who unwittingly drives a robber to a bank, waits for him, and then drives him away from the bank.
But a defendant is also guilty of aiding and abetting a crime when he or she intentionally aids the other person in committing the crime. Thus, even if a defendant does not have prior knowledge of another person’s intent to commit a crime, he can be guilty of aiding and abetting that crime if he knowingly aids the other person at the time the other person commits the crime. And even if appellant did not know that Jensen intended to assault, rob, shoot, and/or kill the victim (or attempt these acts) prior to their commission, he is guilty of aiding and abetting if he intentionally assisted Jensen in committing these crimes.
Here, even if appellant did not conspire and plan to rob and kill the victim earlier in the night, the record indicates that appellant participated in these crimes when they came to fruition. Specifically, the record indicates that Jensen and appellant chased after the victim while Jensen fired at the victim. The record also indicates that appellant’s behavior before and after the crimes is consistent with that of an abettor. Thus, contrary to his argument, appellant’s conduct was not comparable to the hypothetical innocent taxi-cab driver. Because the record shows that appellant aided and abetted Jensen in committing the assault, attempted robbery, and attempted murder of the victim, we conclude that the district court did not commit plain error in instructing the jury during its deliberations.
Appellant argues that the district court erred in instructing the jury on his right not to testify because he did not request the instruction, and therefore, he must receive a new trial. An instruction on a defendant’s right not to testify should ordinarily not be given unless the defendant personally requests it on the record. McCollum v. State, 640 N.W.2d 610, 616 (Minn. 2002). Giving the instruction without obtaining the defendant’s consent on the record is error. State v. Duncan, 608 N.W.2d 551, 558 (Minn. App. 2000), review denied (Minn. May 16, 2000); see Minn. Stat. § 611.11 (2002) (stating that a defendant’s failure to testify shall not create any presumption against defendant nor be alluded to by the court).
Although appellant neither requested nor consented to the instruction, at the close of trial the district court instructed the jury that appellant had the right not to testify, that this right is guaranteed by the federal and state constitutions, and the jury should not draw any inferences from appellant’s decision not to testify. But appellant did not object at the time the instruction was given. Thus, this court only reviews the instruction if appellant can show that the error was prejudicial in that it affected the outcome of the case. Griller, 583 N.W.2d at 740.
Here, appellant cannot establish that he was prejudiced by the instruction. Appellant’s attorney specifically addressed appellant’s right not to testify in his closing argument when he explained that appellant was presumed innocent, that the state had the burden to prove appellant guilty beyond a reasonable doubt, and that appellant had exercised his constitutional right not to testify. Appellant’s trial attorney further explained that
that right simply guarantees my client, a 19-year-old kid, does not have to take the stand and cannot be forced to match wits with trained professionals under the most strenuous conditions that you can possibl[y] imagine. Our laws require that you cannot and do not use that fact that he did not testify against him . . . .
Considering appellant’s attorney’s comments and the weight of the evidence, appellant cannot show that the district court’s instruction affected the jury’s verdict. Therefore, we conclude that the district court did not commit plain error by giving this instruction.
In his pro se brief, appellant argues that he was denied effective assistance of counsel. To prevail on a claim of ineffective assistance of counsel, an appellant must demonstrate that counsel’s representation fell below an objective standard of reasonableness, and a reasonable probability exists that the outcome would have been different but for the counsel’s errors. Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987). A reasonable probability is one that is sufficient to undermine confidence in the outcome. Id. There is a strong presumption that counsel’s performance fell within the range of reasonable assistance. See State v. Lahue, 585 N.W.2d 785, 789 (Minn. 1998).
Here, appellant contends that he was denied effective assistance of counsel because: (1) he was not informed that a third party was paying his attorney; (2) his attorney did not inform him about his omnibus hearing, as it related to the Double Jeopardy Clause; and (3) his attorney did not inform him that the state was prosecuting him as a person/U.S. federal corporate citizen rather than an American or that the court had procured his citizenship by fraud. But appellant’s claims are general, conclusory, and unsupported by the record or the law. Appellant fails to cite any relevant caselaw or reference any specific acts or omissions by his counsel that failed to meet the standard of a reasonably competent defense attorney. Because appellant has failed to establish that but for his attorney’s incompetence, a reasonable probability exists that the jury would have found him not guilty, we reject this claim. And finally, we have reviewed the other arguments raised in appellant’s pro se brief and conclude they are without merit.