This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).






State of Minnesota,





Nancy Pacheco,



Filed October 4, 2005


Gordon W. Shumaker, Judge


Otter Tail County District Court

File No. K2-04-223



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


David J. Hauser, Otter Tail County Attorney, Cherie L. Clark, Assistant County Attorney, 121 West Junius, Suite 320, Fergus Falls, MN 56537 (for respondent)


Melissa V. Sheridan, Assistant State Public Defender, 1380 Corporate Center Curve, Suite 230, Eagan, MN 55121 (for appellant)


            Considered and decided by Kalitowski, Presiding Judge; Shumaker, Judge; and Minge, Judge.


U N P U B L I S H E D   O P I N I O N


Appellant Nancy Pacheco challenges her conviction of first-degree criminal damage to property, arguing that the evidence was not sufficient to prove that she played any knowing role in the property damage.  Additionally, appellant argues that the district court erred when it gave the no-adverse-inference instruction without her consent.  We affirm.


On the afternoon of February 2, 2004, Jeffrey Berns was at his home with his fiancée, Melinda Wobig, and her nephew, Benjamin Williams.  Williams was staying with Berns and Wobig because he had recently broken up with his girlfriend, Veronica Pacheco.  At some point that afternoon, a group of people arrived in two vans at Berns’s residence.  The people called for Williams to come out of residence.  Williams refused to go outside. 

Initially, Berns noticed people damaging Williams’s car, which was parked about 15 feet from the house.  Berns saw two women, including appellant, standing near the car.  Berns testified that the windshield was shattered, the passenger windows were knocked out, the hood and trunk were damaged, and two tires were slashed. 

The group then began kicking and pounding on the front door of the home.  Berns testified that the group pounded on the door in two separate incidents; initially a group of men beat on it, and then two women started banging on it less than one minute later.  Berns identified appellant as one of the women beating on his door.  Then someone threw a headboard that was sitting outside the home into the kitchen window and broke it.  The group left immediately thereafter. 

Deputy Sheriff Karger responded to Berns’s 911 call at approximately 2:00 p.m.  By the time officer Karger arrived, the group was gone, and he observed the damage to the vehicle and the residence.  After speaking with the residents of the Berns house, Karger went in search of the group responsible for the damage.  

Karger located one van and two of the men involved in the incident in Frazee, Minnesota.  He requested that the men take him to where the women involved in the incident were.  He then interviewed all of the people involved in the incident, including appellant.  After interviewing appellant, Karger arrested her.  She asked whether she was being arrested for “what we all did?”

At appellant’s jury trial on June 10, 2004, the state called Berns, Wobig, and Karger to testify about the incidents that took place at the Berns residence, and appellant’s husband, Eduardo Garcia, testified for the defense.  Appellant never testified.  Without first obtaining the appellant’s consent, the court instructed the jury on the appellant’s right not to testify in her own defense.  The jury convicted appellant of criminal damage to property of more than $500.  This appeal followed.   


1.         Sufficiency of the Evidence

            Appellant claims that insufficient evidence exists to support her conviction.  When considering a claim of insufficient evidence, this court’s review is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, is sufficient to allow the jurors to reach the verdict that they did.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  The reviewing court must assume that “the jury believed the state’s witnesses and disbelieved any evidence to the contrary.”  State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).  This is especially true when resolution of the matter depends mainly on conflicting testimony.  State v. Pieschke, 295 N.W.2d 580, 584 (Minn. 1980).  The reviewing court will not disturb the verdict if the jury, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude that the defendant was guilty of the charged offense.  State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).

            A person is guilty of first-degree criminal damage to property if the person “causes damage to physical property of another without the latter’s consent” and the “damage reduces the value of the property by more than $500 as measured by the cost of repair and replacement.” Minn. Stat. § 609.595, subd. 1(3) (2004).  And a person may be “criminally liable for a crime committed by another, if the person intentionally aids, advises, hires, counsels, or conspires with or otherwise procures the other to commit the crime.”  Minn. Stat. § 609.05, subd. 1 (2004).

            Sufficient evidence was presented to support appellant’s conviction.   Appellant drove one of the vans to Berns’s residence.  Berns testified that appellant was standing by the vehicle that was damaged.  Wobig testified that she saw “a couple of people on each side of the car just swinging.”  Both Berns and Wobig testified that appellant was one of the women kicking and pounding on the door.  Two of the recessed panels of the door had to be fixed, and the door handle and doorjamb had to be replaced, as did one of the hinges on the door.  The cost of repairing the door was $250.  Appellant’s husband, Eduardo Garcia, threw a headboard through a window.  The cost of repairing the window was $342.  The group then drove away in the two vans.  Additionally, appellant asked Karger as she was being arrested if it was “[b]ecause of what we all did?”  Notably, both Berns and Wobig recalled one man with the group who repeatedly tried to get the group to stop and leave and even stuck his head in through the broken window to apologize after the damage was done.  Appellant did not stop but instead joined the group causing damage to the home.  We assume that the jury believed the state’s witnesses and disbelieved any evidence to the contrary.  Moore, 438 N.W.2d at 108.  Therefore, sufficient evidence existed to support appellant’s conviction of first-degree criminal damage to property. 

2.         Jury Instruction

            Appellant argues that the district court erred when it gave a no-adverse-inference instruction regarding appellant’s failure to testify.  Specifically, appellant claims that she suffered prejudice when the instruction, which she did not request or agree to, was given.  An instruction on the defendant’s right not to testify should not ordinarily be given unless the defendant requests the instruction on the record.  McCollum v. State, 640 N.W.2d 610, 616 (Minn. 2002).  Failure to obtain the defendant’s consent is error.  State v. Duncan, 608 N.W.2d 551, 558 (Minn. App. 2000), review denied (Minn. May 16, 2000).  However, giving the instruction without the defendant’s permission is harmless error unless the defendant can demonstrate that it significantly affected the jury’s verdict.  State v. Darris, 648 N.W.2d 232, 240 (Minn. 2002).

            Appellant claims that because she did not consent to the no-adverse-inference instruction, the district court erred, and she should be granted a new trial.  After closing arguments, the district court instructed the jury that “the defendant is presumed innocent of the charge made, and she has no obligation to testify in this case.  You should not draw any adverse inference from the fact that the defendant has exercised her constitutional right not to testify in this case.”  The state concedes that the district court committed error by giving the no-adverse-inference instruction without appellant’s consent, but points out that appellant did not object to the jury instruction.  The record is silent as to whether or not appellant wanted the instruction.  However, a silent record does not automatically entitle an appellant to a new trial.  State v. Thompson, 430 N.W.2d 151, 153 (Minn. 1988).

            Appellant suggests that the error in providing the no-adverse-inference instruction to the jury was prejudicial, and, thus, a new trial is required.  However, appellant states only a conclusion that prejudice resulted and fails to show how the instruction prejudiced her.  Appellant suggests that, had she not presented any evidence and simply argued that the state had not proved its case, this instruction would not have been as harmful. However, appellant argues, because she submitted the testimony of her husband, the fact that she did not testify in her own defense may have been less obvious to the jurors had the court not brought it up in the instructions.  This argument does not support the determination that the error prejudiced appellant.  Sufficient evidence had already been presented that appellant drove to the Berns residence and participated in the activities that caused damage to the home.  It is doubtful that the jurors would not have noticed that appellant did not testify.  Furthermore, the instruction is in appellant’s favor, reminding jurors that they cannot infer guilt from the fact that she did not testify.  Because appellant failed to show that the instruction significantly affected the jury’s verdict, the district court did not commit prejudicial error when it gave the no-adverse-inference instruction, and we affirm.