This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
STATE OF MINNESOTA
IN COURT OF APPEALS
Filed February 21, 2006
Redwood County District Court
File No. K8-04-256
Mike Hatch, Attorney General, James B. Early, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Michelle Dietrich, Redwood County Attorney, Redwood County Courthouse, P.O. Box 130, Redwood Falls, MN 56283 (for respondent)
Considered and decided by Toussaint, Chief Judge, Wright, Judge, and Crippen, Judge.
In May 2004, the state charged appellant in a complaint referencing Minn. Stat. § 152.021, subd. 2a (2002) (prohibiting manufacture of any amount of methamphetamine, but making no mention of conspiracy to manufacture), but then stating a charge of “CONSPIRACY TO COMMIT CONTROLLED SUBSTANCE CRIME IN THE FIRST DEGREE.” Section 152.021 makes no mention of conspiracy to manufacture. The complaint also states that appellant “did conspire with another to manufacture any amount of methamphetamine and, in furtherance of the conspiracy, committed some overt act in furtherance of the conspiracy.”
at trial showed that in late
When appellant entered the residence, the officers arrested him, and he informed them that he had a loaded gun in his vehicle. When the police obtained and executed warrants to search appellant’s toolbox and vehicle, they discovered precursors to the manufacture of methamphetamine as well as the gun and ammunition.
From the state’s opening argument to the jury instructions given by the district court, the record consistently portrays the state’s case against appellant as one of conspiring with another person to manufacture methamphetamine and not one of manufacturing methamphetamine. In defending against the charges, appellant repeatedly and consistently attempted to show either that Kietzer acted alone in manufacturing the methamphetamine or that appellant had no knowledge that Kietzer was involved in this activity. The district court provided to the jury the statutory definitions and elements set forth in the conspiracy statute and described the overt acts alleged to have been done with the purpose of furthering the conspiracy. Following deliberations, the jury found appellant “guilty of the charge of conspiracy to manufacture methamphetamine, first degree controlled substance crime, in violation of Minn. Stat. § 152.021, subd. 2a, with reference to subd. 3(a); Minn. Stat. § 609.175, subd. 2(3).” The court sentenced appellant to 86 months in prison, the presumptive sentence.
Minn. Stat. § 152.021, subd. 2a (2002), cited in the complaint, addresses manufacture but does not use the word “conspiracy.” A conspiracy charge is otherwise stated in the complaint and specifically with reference to appellant’s charged actions.
The parties offer contradictory views as to whether appellant waived his right to challenge the complaint on appeal because he failed to state this objection before the district court. Although there is merit in appellant’s assertion that he is entitled to review of the issue under a standard of reversible error, the record fails to show that error occurred.
The complaint must be interpreted so
as to uphold its validity whenever this is reasonably possible. State
In addition, where a conviction is
at variance with the indictment, we must uphold the conviction unless the
variance “deprived the defendant ‘of a substantial right, namely, the
opportunity to prepare a defense to the charge against him.’” State
v. Gisege, 561 N.W.2d 152, 159 (
Appellant also argues that he is
entitled to a new trial because language in the district court’s jury instructions
permitted the jury to convict him based on an overt act committed by Kietzer,
the confidential informant, rather than appellant. Because appellant did not object to the
instructions at trial, he has waived any challenge to them unless the instructions
were so misleading as to constitute plain error. State
v. Baird, 654 N.W.2d 105, 109 (
Using the language of CRIMJIG 5.12, the district court instructed the jury that “the overt act . . . must be the act of a person who does intend the crime . . . be committed.” This instruction from the jury instruction guides specifically addresses a conspiracy with one who intends that a crime not be committed, i.e., a confidential informant. It was plain to the jury that Kietzer was an informant who did not intend the manufacturing to occur, and, therefore, the overt act had to be committed by appellant.
Appellant objects to the court’s reference to the elements of the conspiracy offense. Using language of CRIMJIG 5.07, the court named as one element the fact that the defendant “or another party to the conspiracy” did one of the overt acts to further the conspiracy. But it is evident that CRIMJIG 5.12 is carefully formulated to avoid conviction of an innocent person based upon the conspiratorial acts of an informant, and there is no merit in appellant’s assertion that it is rendered less clear by the description of the usual elements of a conspiracy. Moreover, the clarity of instruction 5.12 is enlarged by the fact that the state in its summation fully acknowledged the need to show that the jury must find an overt act of appellant to support a conviction. The instruction did not constitute plain error.
Finally, appellant argues that the
district court abused its discretion by allowing the prosecutor to
cross-examine appellant concerning a loaded gun discovered in appellant’s car
at the crime scene. Evidentiary rulings
will be reversed only upon a showing that the district court clearly abused its
discretion to decide the issue. State v. Profit, 591 N.W.2d 451, 463 (
Although appellant volunteered, during the course of police intervention with drug activity, that he carried a gun in his vehicle, he testified on direct examination that he had the gun in his car because it was gopher-hunting season. On cross-examination, he testified that the gun was loaded and uncased and had a round of ammunition in the chamber ready to be fired. If the jury considered the gun evidence, the record permitted their conclusion that the gun was not kept as it was found to permit gopher hunting.
It was not an abuse of the district
court’s discretion to conclude that the gun evidence was relevant to the
question of whether appellant was involved in the manufacture of
methamphetamine. See State v. Love, 301
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.