`This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).






State of Minnesota,


Hawai Hiawatha Johnson,


Filed January 4, 2005

Reversed and remanded

Stoneburner, Judge


Hennepin County District Court

File No. 03044192


Mike Hatch, Attorney General, Suite 1800, NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and


Amy Klobuchar, Hennepin County Attorney, Linda M. Freyer, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)


John M. Stuart, Minnesota Public Defender, Steven P. Russett, Assistant Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN 55414 (for appellant)


            Considered and decided by Klaphake, Presiding Judge; Harten, Judge; and Stoneburner, Judge.


U N P U B L I S H E D  O P I N I O N




            On appeal from conviction of second-degree aggravated robbery, Hawai Hiawatha Johnson argues that the district court abused its discretion by allowing the state to impeach him with prior convictions, erred by telling the jury that he had been convicted of a felony, and abused its discretion in instructing the jury.  Because we conclude that the jury instructions were confusing and prejudicial, we reverse and remand.



            Johnson was charged with one count of aggravated robbery in the first degree for allegedly using a knife to steal a bottle of vodka from a liquor store.  At the Rasmussen hearing, the state asked the district court to rule that evidence of Johnson’s prior convictions could be admitted.  The district court, without articulating its analysis, told Johnson that if he testified, the fact of his prior felony conviction would be admitted.  On direct examination, Johnson’s attorney asked him if he had a felony conviction on his record, and he responded, “Yes.  I do have a felony conviction on my record, but that’s all over with.”

            The district court instructed the jury on first-degree aggravated robbery and the “lesser included offenses” of second-degree aggravated robbery, simple robbery, second-degree assault, and misdemeanor theft.  Johnson’s counsel initially objected to the inclusion of all lesser offenses except theft but later argued that the evidence also supported submission of second-degree assault.  The district court gave numerous contradictory instructions about the order in which the jury should consider the charges and how the jury should fill out the verdict forms.  Both counsel interrupted the district court during instructions in an attempt to correct and clarify the instructions.  Counsel and the court had several discussions in the presence of the jury about the jury instructions and the manner in which the verdict forms should be answered, and a juror also inquired about the instructions.  During deliberations, the jury asked the district court to clarify whether simple robbery or assault in the second degree was the greater offense.  Over Johnson’s objection the district court responded that the four lesser offenses are not necessarily lesser offenses of each other but are all lesser offenses of aggravated robbery.  The jury returned a guilty verdict on second-degree aggravated robbery.  Johnson was sentenced and this appeal followed.



I.          Jury instructions

            We first address Johnson’s challenge to the manner in which the district court instructed the jury.  Trial 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 if they fairly and adequately explain the law.  State v. Flores, 418 N.W.2d 150, 155 (Minn. 1988).  “A jury instruction is in error if it materially misstates the law.”  State v. Lindsey, 654 N.W.2d 718, 722 (Minn. App. 2002) (citation omitted).  Proper jury instructions define the crime charged.  State v. Crace, 289 N.W.2d 54, 59 (Minn. 1979).  The general rule is that

it is better if the trial court explains the elements of an offense to the jury rather than simply reading the statute, and that in the case of lesser offenses, the trial court ought to indicate in the forms of the verdicts submitted that the lesser degrees submitted are in fact lesser offenses than the offense charged.


State v. Boerner, 260 N.W.2d 564, 566 (Minn. 1977).


            Johnson argues that the court abused its discretion by repeatedly suggesting the order in which the jury should consider the offenses, by giving confusing instructions about how the jury should fill out and return the verdict forms, by allowing the instructions to be debated among counsel and the judge in front of the jury, by including second-degree assault as a lesser-included offense, and by improperly responding to a jury question, all of which requires a new trial.

            The district court first told the jury:

You must reach a separate, independent verdict of guilty or not guilty for each count – or each charge. . . .  In this case, I am submitting to you what we call lesser-included offenses.  He can only be guilty of one of them because the lessers are all included in the greater.  So if you find—I’d start with the greater offense—and if you find at some point that all of the elements of the crime charged have been proven, he would be guilty of that particular crime and you’d ignore the rest of the counts because they’d now be irrelevant since they’re all included within the one you found guilty.  And if you reach the bottom and you have not found that [he] has been proven guilty of each and every element of the least charge, you’d find him not guilty of the whole works.

                        . . . .


You are free to consider the issues in any order that you wish, but I would suggest that you start with the highest charge, which is the crime charged in the complaint, namely Aggravated Robbery in the First Degree and then work your way down from there.  I have not intended by anything I have said to indicate that you must consider the issues in any particular order and you can certainly go in reverse if you want to.  It’s up to you.

                        . . . .


It may be the more effective use of your time to consider first Aggravated Robbery in the First Degree and, in the verdict forms, they will be the first two verdicts.

                        . . . .


            So the next instruction is CRIMJIG 3.20, Lesser Crimes.  The law provides that upon the prosecution of a person for a crime, if the person is not guilty of that crime, the person may be guilty of a lesser crime. . . .  If you find beyond a reasonable doubt that the defendant has committed each element of the lesser-included crime, but you have a reasonable doubt about any different element of the greater crime, the defendant is guilty only of the lesser crime.  Which is why I suggest you start at Aggravated Robbery in the First Degree and work your way down through that.


The district court then explained the verdict forms.  The district court described the forms for the “highest” charge and stated that if the jury found appellant not guilty of that charge, the foreperson should sign the not-guilty form, and the jurors would then go on to the next offense.  The court explained that each offense must have one of the two forms filled out—guilty or not guilty. 

            After a bench conference requested by Johnson’s counsel, the district court said: “The attorneys are telling – this is difficult. . . .  The highest offense you consider that you find the defendant guilty you can find him – if you find him guilty of anything, you find him guilty of that offense and return all the rest blank is fine. . . .”

            Following a discussion between Johnson’s counsel and the district court, the court then stated: “All right.  This is what we want you to do.  Look first at Aggravated Robbery, First Degree.  If your verdict is guilty, fill out the guilty form.”  Johnson’s counsel initiated another bench conference after which the district court told the jury:

This is such a confusing thing.  Yes.  You can start at the bottom if you want to, start at Theft, but if you find the defendant guilty of Theft you still have to go up to the next and the next and the next and the next.  So do it as you want to, but return one verdict of guilty only if you find the defendant guilty of any one of the five offenses and if you find him not guilty of any – of all of it, you must return a – we don’t have a general not guilty verdict, but you can simply fill out any one of them, probably the Theft one, the last one, and return it, which would mean he’s not guilty of anything at all.


A juror then asked: “If we find him [guilty] in the Second Degree-- . . . We would sign the one for not guilty on the first degree and sign the second one?”

COURT:         No.  You just have to sign the guilty on the Second Degree and that’s all.


COUNSEL FOR THE STATE:         I think you would.  As you go down, I think you would have to do the not guilty verdict on the greater offenses.


COURT:         That was what I was suggesting but I got opposition from [defense counsel]. . . .

            . . . .


JOHNSON’S COUNSEL:    And they get to choose what they want to find him guilty of.  Right?

            . . . .


COURT:         I just said that, but I told them that if they want to be absolutely certain they’ve covered all the bases, they can fill out one for each of the five different offenses submitted to them.


JOHNSON’S COUNSEL:    But that’s not what your instructions say.


COURT:         I know that.


JOHNSON’S COUNSEL:    You’re changing your instructions?


COURT:         I am telling them what’s practically true.


The district court then remarked to the jurors that “this stuff gets so confusing” and that they should look at section D of the instructions, because the court wrote section D and thought it was probably better.  Again, the district court stated that the jury should:

Start with the highest crime, Aggravated Robbery, First Degree.  If you are unanimously convinced that each and every element of Aggravated Robbery, First Degree has been proven beyond a reasonable doubt, you will find the defendant guilty of Aggravated Robbery, First Degree, and your foreperson will sign the verdict form . . . and leave the other nine verdict forms blank.  If you are not unanimously convinced . . . you will leave both verdict forms blank – this is the better process, follow this one – leave both verdict forms blank for Aggravated Robbery, First Degree, and consider the next lesser crime . . . .


The district court then explained each additional charge in the same manner, beginning with Aggravated Robbery, Second Degree, Simple Robbery, Aggravated Assault in the Second Degree, and Misdemeanor Theft.  But the district court then acknowledged that Johnson’s counsel correctly pointed out that the jury could start with the most minor offense and work its way up.

            The “Lesser Crime” jury instruction, CRIMJIG 3.20, states that “[t]he law provides that upon the prosecution of a person for a crime, if the person is not guilty of that crime, the person may be guilty of a lesser crime.”  10 Minnesota Practice, CRIMJIG 3.20 (1999).  The comment to CRIMJIG 3.20 cautions courts “not to indicate any order in which the crimes should be considered” and not to “instruct the jury to consider the lesser crimes only if it finds the defendant not guilty of the charged offense.”  Id.; see also, State v. Dahlstrom, 276 Minn. 301, 311, 150 N.W.2d 53, 61 (1967) (concluding that the district court should not instruct the jury with his or her own views on the order of procedures to be followed).  In this case, the district court suggested to the jury numerous times the order in which it should consider the crimes—even as the district court acknowledged that the jury could consider the offenses in the opposite order of severity.  In Dahlstrom,the supreme court held that the trial court’s imposition of its views as to the order of how the jury should proceed with regard to the severity of offenses was improper, but did not result in prejudicial error in that case.  276 Minn. at 311, 150 N.W.2d at 61.  But in this case, given the record of confusing and conflicting statements, “it cannot be said beyond a reasonable doubt that the error had no significant impact on the verdict,” and we conclude that Johnson is entitled to a new trial.  State v. Kuhnau, 622 N.W.2d 552, 559 (Minn. 2001) (citation omitted) (stating error in jury instructions is not harmless and a new trial should be granted if it cannot be said beyond a reasonable doubt that the error had no significant impact on the verdict).

II.        Admission of prior conviction for impeachment

            The district court erred by failing to weigh the five factors set out in State v. Jones, 271 N.W.2d 534, 538 (Minn. 1978) before ruling that Johnson’s prior conviction could be used for impeachment.  But because we are remanding for a new trial, we need not engage in a harmless error analysis.

III.       Second-degree assault as lesser-included offense of aggravated robbery 

            On appeal, Johnson argues that the district court did not have discretion to include second-degree assault as a lesser-included offense of first-degree aggravated robbery.  Because Johnson agreed with the district court that second-degree assault should be submitted to the jury, we conclude that he has waived this argument on appeal.  But we nonetheless call the district court’s attention to State v. Brown, 597 N.W.2d 299, 304 (Minn. App. 1999), review denied (Minn. Sept. 14, 1999) (recognizing that it is possible to commit first-degree aggravated robbery without also committing second-degree assault).

            Reversed and remanded.