This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
State of Minnesota,
Cecilio Limon Reyes,
Reversed and remanded
Clay County District Court
File No. K7-03-755
Mike Hatch, Attorney General, James B. Early, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Lisa Borgen, Clay County Attorney, Clay County Courthouse, 807 North 11thStreet, P.O. Box 280, Moorhead, MN 56561 (for respondent)
John M. Stuart, State Public Defender, Michael F. Cromett,
Assistant Public Defender,
Considered and decided by Minge, Presiding Judge; Wright, Judge; and Huspeni, Judge.*
Appellant challenges his conviction of selling controlled substances in the third degree, arguing that the jury instructions were improper and that the evidence was insufficient to support the jury verdict. Because the district court plainly erred by failing to include an instruction stating the presumption of innocence and defining proof beyond a reasonable doubt in its final instructions to the jury, we reverse. Because there was sufficient evidence to permit a jury to return a guilty verdict on each charge, we remand.
Appellant Cecilio Limon Reyes was charged and convicted following a jury trial of two counts of third-degree sale of controlled substances in violation of Minn. Stat. § 152.023, subd. 1(1) (2002). These charges arose out of two purchases of controlled substances made by a paid confidential informant.
the beginning of appellant’s trial, the district court orally read to the jury
preliminary instructions that included a description of appellant’s presumption
of innocence and a definition of proof beyond a reasonable doubt. However, at the conclusion of the trial, the
final instructions the district court read to the jury contained no statement
concerning appellant’s presumption of innocence. In addition, the district court did not
restate the definition of proof beyond a reasonable doubt in the final
instructions, nor did it explicitly instruct that in order to find the
defendant guilty, each element of the offense must be proved beyond a
reasonable doubt. Instead, the court
stated only that appellant’s not guilty plea “constitutes a denial by the
Defendant of every material allegation in the complaint. And places upon the State of
first issue is whether appellant’s conviction should be reversed because the
district court failed to instruct the
jury on the presumption of innocence and proof beyond a reasonable doubt in its
final instructions. Normally, a
defendant’s failure to request or object to instructions before they are given
to a jury constitutes a waiver of the right to appeal. State v. Cross, 577 N.W.2d 721, 726 (
The Minnesota Supreme
Court recently addressed this issue in State v. Peterson, 673 N.W.2d
482, 486 (
This case is analogous to Peterson. Here, as in Peterson,the district court gave thorough preliminary instructions to the jury explaining the presumption of innocence and proof beyond a reasonable doubt, but failed to repeat the presumption of innocence and the definition of proof beyond a reasonable doubt in its final instructions to the jury. Respondent attempts to distinguish Peterson. However, the rule in Peterson is clear that the instructions on the presumption of innocence and the definition of proof beyond a reasonable doubt must be included in the final charge to the jury and that failure to do so constitutes plain reversible error. See Peterson, 673 N.W.2d at 486-87. Peterson is controlling and because of these errors in the final instructions, appellant is entitled to a new trial.
The next issue is
whether with proper instructions the evidence could be sufficient to support a
jury’s guilty verdict on the two counts of third-degree sale of a controlled
substance. This issue is presented
because the state represents that it intends to prosecute appellant in the
event we reverse based on the jury instruction problem. We recognize that if we find that the
evidence is insufficient, such a retrial would be barred by double
jeopardy. See Burks v.
To convict appellant of a third-degree controlled-substance crime the state would have to prove beyond a reasonable doubt that he “unlawfully [sold] one or more mixtures containing a narcotic drug.” Minn. Stat. § 152.023, subd. 1(1) (2002). The record in this case includes direct testimony and cross-examination of the informant, the detective, and the translator who transcribed the conversation between appellant and the informant. During cross-examination appellant’s attorney elicited testimony that the informant had been convicted of a drug crime and criminal sexual conduct. There was testimony that the informant began working for law enforcement in 2000, and earned between $100 and $200 for each undercover buy he made.
that the informant’s testimony requires eyewitness corroboration because the
informant is paid, has past felony convictions, and has used drugs in the
We recognize that in this case there are indicia that the informant was not trustworthy. Although this may make it more difficult to find the defendant guilty, we also recognize that there is corroborating evidence that would support a guilty verdict. The detective corroborated much of the informant’s testimony regarding the events that were part of the controlled buys. The detective testified and was cross-examined regarding his surveillance of the informant as the informant arrived at and left appellant’s residence during both buys. Also, the detective thoroughly searched the informant before and after the buys and was certain that he would have discovered even a minute amount of narcotics in the informant’s possession. The conversations between appellant and the informant were monitored, and although the conversation concerning the informant’s first controlled buy was not tape-recorded, the detective testified that he recognized appellant’s name being uttered during the conversation.
The conversation between appellant and the informant during the second controlled buy was tape-recorded, translated, and transcribed. In reaching its verdict, a jury could rely on this conversation, which provides corroborating circumstantial evidence supporting the informant’s testimony and the elements of the crime. Also, the transcript includes a discussion of what type of controlled substance is in the pills. Furthermore, the translator independently identified appellant as the other party in the conversation with the informant. Although the informant had $70 in cash in his possession after the buy, he provided a credible explanation that appellant owed him this money for a car he had purchased. Recognizing the jury’s exclusive function to weigh credibility of witnesses, the evidence is sufficient to permit a jury to reach a guilty verdict. See Pippitt, 645 N.W.2d at 94. Therefore, we remand for a new trial.
Reversed and remanded.