This opinion will be unpublished and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
Dennis Ernest Jones,
Filed July 5, 2005
Marshall County District Court
File No. K9-03-314
Mike Hatch, Attorney General, John B. Galus, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Michael D. Williams, Marshall
County Attorney, 423 North Main,
Kerry S. Rosenquist, Rosenquist & Arnason, LLP, 301 North Third Street, Suite 300, Grand Forks, ND 58203 (for appellant)
Considered and decided by Halbrooks, Presiding Judge; Lansing, Judge; and Minge, Judge.
U N P U B L I S H E D O P I N I O N
A jury found Dennis Jones guilty of aiding and abetting first-degree assault for his participation in injecting a substance in Becky Erickson’s arm that caused her to suffer a stroke and permanent partial paralysis. In this appeal from conviction and sentence, Jones challenges the absence of a specific jury instruction on intent and the state’s failure to prove lack of consent. Because the district court properly instructed the jury on the elements of first-degree assault, which do not include lack of consent, and because consent was not raised as a defense except in closing arguments, we affirm.
F A C T S
material facts underlying Dennis Jones’s conviction are essentially
uncontradicted. Jones and Tracy Clary
went to an apartment in
When Clary and Wysocki left the building to get cigarettes, Jones and Erickson went up to Wysocki’s apartment so Clary and Wysocki’s sleeping children would not be left alone. Jones repeatedly asked Erickson if she wanted to use drugs, and she repeatedly declined. After Clary and Wysocki returned to the apartment, and about three hours after Jones first asked her about using drugs, Erickson testified that she finally “gave up.” Jones produced a syringe and handed it to Clary. Clary and Erickson went into the bathroom where Clary injected Erickson intravenously in her right arm while Jones stood in front of the open bathroom door. Wysocki testified that she saw the white powder before it was mixed into a solution and placed in the syringe. She believed that the powder was methamphetamine or cocaine but said that Clary sometimes injected a substance that he extracted from Benzedrex, an over-the-counter nasal inhalant. Erickson believed the solution contained methamphetamine, and Jones later told police that it contained methamphetamine.
Immediately after the injection, Erickson experienced
intense pain, vomited, had no feeling on her left side, and was unable to walk. Jones accompanied Erickson back to her
apartment and stayed with her until the following afternoon, about fourteen
hours after the injection, when she was taken by ambulance to a hospital in
Clary pleaded guilty to second-degree assault. Jones was charged by amended complaint with three counts: aiding and abetting assault—great bodily harm caused by distribution of drugs, use of drugs to injure or facilitate a crime, and aiding and abetting first-degree assault. A jury found Jones not guilty of the first two counts but found him guilty of aiding and abetting first-degree assault. Jones appeals, challenging (1) the absence of a specific jury instruction on intent and (2) the state’s failure to prove lack of consent.
D E C I S I O N
District courts are permitted “considerable
latitude” in the selection of language for jury instructions, provided that the
instructions do not materially misstate the law. State
v. Pendleton, 567 N.W.2d 265, 268 (
Jones asserts that a new trial is necessary because the district court failed to give a specific instruction on intent. The record discloses no request for a jury instruction other than Jones’s request, in response to a jury question, to instruct that Jones was not charged with criminal sexual conduct. At the conclusion of the district court’s instructions, Jones did not object or request any additional instructions. But even if Jones had adequately preserved his challenge, it fails for three reasons.
the instructions on intent correctly stated the law. The court instructed the jury that Jones could
be “guilty of a crime committed by another person [if he] intentionally aided
the other person in committing it, or ha[d] intentionally advised, hired,
counseled, conspired with, or otherwise procured the other person to commit
it.” This instruction correctly states
the law that applies to aiding and abetting.
The court also correctly instructed the jury
on the intent necessary to prove assault, saying, “The statutes of
These instructions establish that intent is
an essential element of the crime and link the statute that defines assault
with the statute that defines the degree of assault the state had charged.
the district court’s instructions on intent are consistent with the instruction
on “intentionally” that Jones asserts should have been given. That instruction provides that
“[i]ntentionally means that the actor either has a purpose to do the thing or
cause the result specified or believes that the act performed by the actor, if
successful, will cause that result.” See
And, third, Jones has not demonstrated that he was prejudiced by the court’s decision not to instruct on Minn. Stat. § 609.02, subd. 9. No evidence suggests that the intravenous injection was accidental or unintended. The evidence is uncontradicted that Clary had a purpose to inject Erickson intravenously with the solution and that the solution contained either methamphetamine or a substance extracted from Benzedrex. The evidence is also uncontradicted that Jones fully participated in the events that culminated in the injection and watched as Clary injected Erickson. And it is undisputed that the intravenous injection inflicted great bodily harm on Erickson. The jury instructions correctly stated the law, and Jones has not demonstrated plain error that prejudiced his substantial rights.
Jones alternatively argues that the state failed to prove an assault because Erickson consented to the offense. He couches this argument both as an affirmative defense to first-degree assault and as a fundamental failure of the state to prove the elements necessary to establish first-degree assault. We reject both arguments.
the extent that Jones claims consent as an affirmative defense, he failed to
give the required pretrial notice to the state of his intention to raise such a
defense. See Minn. R. Crim. P. 9.02 (requiring defendant to inform
prosecution before omnibus hearing of “any defense, other than that of not
guilty, on which the defendant intends to rely at trial”). Furthermore, he requested no jury instruction
or special verdict on the issue of consent. Although Jones made comments about consent in
his closing argument, the state countered with claims of duress and
coercion. In the absence of plain error,
a defendant may not obtain appellate review of an issue that has not been properly
raised or presented at trial. State v. Williams, 525 N.W.2d 538, 544 (
Jones has not shown plain error or a fundamental failure to prove the
elements necessary to establish first-degree assault. His argument that the conviction is invalid for
failure to prove lack of consent rests on two cases that do not provide support. The first case, Frey v. McManus, 154
The elements of first-degree assault require the state to prove that the
actor assaulted another and inflicted great bodily harm.