This opinion will be unpublished and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
Matthew James Lubovich,
Filed September 5, 2006
Crow Wing County District Court
File No. K5-04-1917
Donald F. Ryan,
Mike Hatch, Attorney General, John B. Galus, Assistant
Attorney General, 1800
John M. Stuart, State Public Defender, Steven P. Russett,
Jessica Merz, Assistant State Public Defenders,
Considered and decided by Willis, Presiding Judge; Toussaint, Chief Judge; and Dietzen, Judge.
U N P U B L I S H E D O P I N I O N
Appellant Matthew Lubovich challenges his conviction and sentence for fifth-degree controlled substance crime and possession of drug paraphernalia, arguing that he was denied his constitutional right to a unanimous verdict and, therefore, is entitled to a new trial; additionally, he argues that the district court abused its discretion in ordering restitution and costs of prosecution as part of his sentence. Because appellant was deprived of his constitutional right to a unanimous verdict, we reverse.
In April 2004, Deputy Patrick Pickar of the Crow Wing County Sheriff’s Department stopped a motor vehicle driven by David Dunlap for failure to stop at two stop signs. As he approached the vehicle, the deputy noticed a 12-pack of beer sitting on the back seat of the vehicle. The deputy determined that both the driver and his passenger, appellant Matthew Lubovich, were underage, and ordered both men to stand by the side of the road as he searched the vehicle. The deputy found a Mountain Dew box with a brown paper bag inside containing 28.1 grams of psilocybin mushrooms located underneath the driver’s seat. He also found a plastic baggy in Dunlap’s hand, which he determined contained methamphetamine. The deputy searched the ditch alongside the road and found a black bag with multiple baggies inside it, which contained a total of 1.1 grams of methamphetamine and was located approximately 10 to 15 feet from appellant. Dunlap and appellant were arrested.
The deputy applied for a search warrant to search the residence from which he initially saw the vehicle leave. One of the six people present in the residence informed the deputy that the owner was Shawn Crist. The deputy obtained a warrant to search the upstairs portion of the house, which consisted of a living room and a small bedroom.
During the search, deputies seized several items of drug paraphernalia, including smoking pipes and plastic baggies. Officers did not find any evidence to link appellant to the area searched.
Appellant was charged with fifth-degree controlled substance crime, in violation of Minn. Stat. § 152.025, subd. 2 (2004); possession of drug paraphernalia, in violation of Minn. Stat. § 152.092 (2004); and underage possession of alcohol, in violation of Minn. Stat. § 340A.503, subd. 3 (2004). At trial, the state presented evidence that appellant possessed the bag of methamphetamine and the container of psilocybin mushrooms.
During closing arguments, the state argued that appellant was guilty of fifth-degree possession of a controlled substance if the jury found that he possessed either the mushrooms or the methamphetamine. The prosecutor noted:
Now, under this particular instruction, you can find [appellant] guilty of being in possession of a controlled substance if you find by proof beyond a reasonable doubt that he was in possession of the psilocybin mushrooms. You can also find him guilty of fifth degree possession of a controlled substance if you believe he was just in possession of the methamphetamine. You could also find him guilty of fifth degree possession if you find that he was in possession of both. He does not have to be found by proof beyond a reasonable doubt to be in possession of both of those to be convicted of that fifth degree possession. It can be the psilocybin mushrooms only, methamphetamine only, or a combination of the two.
With regard to the count of fifth-degree possession of a controlled substance, the district court instructed the jury:
The statutes of
The district court instructed the jury that each juror must agree with the verdict and that its verdicts must be unanimous.
The jury found appellant guilty of fifth-degree controlled substance crime and possession of drug paraphernalia, but acquitted him of underage possession of alcohol. Appellant moved for a new trial, arguing that he was denied his constitutional right to a unanimous verdict because the jury instructions permitted the jury to find appellant guilty of possession of either the mushrooms or the methamphetamine without instructing them that they must unanimously agree as to which controlled substance he possessed. The district court denied appellant’s motion for a new trial without making any findings.
Appellant’s sentence was stayed, and he was placed on supervised probation with conditions, including payment of prosecution costs of $100. Appellant’s sentence was reserved for 60 days on the issue of restitution for the costs of seating a jury when appellant failed to appear for trial. The record contains a restitution worksheet compiled by the Crow Wing County Court Administration, which states that appellant owes $997.34. Appellant signed a payment agreement for monthly payments on this debt to total $1,240.34. This direct appeal follows.
Appellant argues that the district court erred by not instructing the jury that it must unanimously decide which of two acts constituted “possession” for purposes of the charged offense of fifth-degree possession of controlled substance. Appellant did not object at trial to the lack of a specific unanimity instruction, but raised the issue in a motion for a new trial.
Generally, a trial
court has broad discretion in selecting the language of jury instructions. State
v. Hare, 575 N.W.2d 828, 833 (
that allow for possible significant disagreement among jurors as to what acts
the defendant committed violate the defendant's right to a unanimous
verdict. State v. Begbie, 415 N.W.2d 103, 105 (Minn. App. 1987), review denied (Minn. Jan. 20, 1988). “A unanimous verdict shall be required in all
Thus, the United
States Supreme Court has held that a state court may determine that “certain
statutory alternatives are mere means of committing a single offense, rather
than independent elements of the crime.”
The Court has further held, in addressing a
federal statute requiring a “series of violations,” that if the individual
“violations” constituting the series are merely means of committing the
offense, the jury need not agree on which of the violations the defendant
on State v. Stempf, 627 N.W.2d 352 (
In Stempf, the defendant was charged with
one count of possession of a controlled substance. But at trial, the state introduced evidence
of two acts of possession: possession of methamphetamine obtained from a search
warrant executed on the defendant’s workplace and possession of methamphetamine
seized from a pick-up truck at the workplace.
The state argues
that Stempf is distinguishable on
three grounds: (1) the defendant in Stempf requested a specific unanimity
instruction; (2) the two acts here shared a unity of time and place that was
not present in Stempf; and (3) the
defendant in Stempf presented different
defenses to each charged act of possession.
The state also argues that Stempf
has been effectively overruled by State
v. Crowsbreast, 629 N.W.2d 433 (
We conclude that
appellant has not waived the unanimity-instruction issue by failing to request
the instruction at trial because he raised the issue in his motion for a new
The state’s second basis for distinguishing Stempf is that in Stempf the acts of possession occurred in different places and at different times. The Stempf court stated, “the two incidents of possession did not constitute a single act. Both acts were premised upon constructive possession and appellant presented different defenses for each alleged act of possession. The acts occurred in different places and at different times.” Stempf, 627 N.W.2d at 358 (citation omitted). The state argues that it was essential to the holding of Stempf that the acts of possession occurred in different places and at different times. We disagree.
The psilocybin mushrooms appellant was charged with possessing were found in a paper bag inside a box beneath the driver’s seat. The methamphetamine was found inside multiple baggies found in a black bag in the ditch near the car after its occupants had been ordered out of the car. Although these differences in the substances, their packaging, and their location may not suffice to constitute separate behavioral incidents, they certainly were sufficient to allow the jury to distinguish between the two acts of possession and to reach different conclusions as to appellant’s responsibility for each. Cf. id. (noting that “[s]ome jurors could have believed appellant possessed the methamphetamine found on the premises while other jurors could have believed appellant possessed the methamphetamine found in the truck”). The mushrooms found under the driver’s seat were in a location more accessible to Dunlap than to appellant, but the methamphetamine was found in a location where either person could have discarded it. On the other hand, because Dunlap had methamphetamine in his hand, the jury could have found it more likely that the methamphetamine in the ditch was his rather than the mushrooms found under the driver’s seat.
We also reject the
state’s third argument that Stempf requires that the defendant present
different defenses for each act of possession. A criminal defendant has no burden to present
evidence in defense of a criminal charge.
Finally, the state
argues that Stempf has been effectively overruled by State v.
Crowsbreast, 629 N.W.2d 433 (
The supreme court in Kelbel
also faced a statutory requirement of a series of past predicate acts imposed
as an element of first-degree murder. Kelbel,
648 N.W.2d at 691. The court’s opinion,
like that in Crowsbreast, does not discuss this court’s opinion in Stempf. And the opinion appears to recognize the
essential distinction between a criminal offense defined solely in terms of
current acts and one requiring “the commission of other predicate acts.”
We conclude, applying Stempf
to the facts of this case, that appellant was entitled to a specific unanimity
instruction, and that the trial court committed an error of fundamental law in
failing to give one. The state argues
that the failure to give a specific unanimity instruction, even if plain error,
did not affect appellant’s substantial rights.
Here, the evidence was such that some jurors could have concluded beyond a reasonable doubt that appellant possessed the mushrooms but not the methamphetamine, while others could have concluded that appellant possessed the methamphetamine but not the mushrooms. Had the trial court instructed the jurors that they needed to agree on what act appellant committed, they may not have reached an agreement. Cf. Stempf, 627 N.W.2d at 358 (finding failure to give specific unanimity instruction not harmless where “the jury could have believed appellant’s defense as to one act but not the other”).
The state points to the jury’s acquittal of underage possession of the 12-pack of beer as evidence that any error in failing to give the specific unanimity instruction was not prejudicial. But the not-guilty verdict on the alcohol charge merely shows the jury was able to distinguish one alleged act of possession from another. This supports the conclusion that the instruction should have been given. And, contrary to the state’s argument, the jury’s finding that appellant did not possess the alcohol found in the car does not mean the jury unanimously agreed that appellant possessed the methamphetamine found outside the car rather than the mushrooms found inside it.
We conclude that the trial court’s failure to give a specific unanimity instruction was plain error that affected appellant’s substantial rights and thus requires reversal of the conviction.
that the district court did not comply with the statutory requirements of the
restitution statute, nor did the district court make findings that the
prosecution costs were allowable under that statute. The state agrees that the district court
erred in awarding both restitution and prosecution costs. Although, in light of our reversal of
appellant’s conviction, we would not be required to address this issue, we do
so in the interest of judicial economy.
“[District] courts are given broad discretion in awarding
restitution.” State v. Tenerelli, 598 N.W.2d 668, 671 (
restitution statute defines a “victim” as “a natural person who incurs a loss
or harm as a result of a crime . . . and for purposes of sections 611A.04 and
611A.045, also includes . . . (ii) a government entity that incurs loss or harm
as a result of a crime.”
statute defines “crime” as: “[C]onduct that is prohibited by local ordinance
and results in bodily harm to an individual; or conduct that is included within
the definition of ‘crime’ in section 609.02, subdivision 1,” which defines
“crime” as “conduct which is prohibited by statute and for which the actor may
be sentenced to imprisonment, with or without a fine.”
court, or its designee, shall obtain information from the victim in affidavit
form or by other competent evidence to determine the amount of restitution
Appellant argues, and respondent concedes, that the district court did not comply with the requirements of the restitution statute, nor did it make findings that the prosecution costs were allowable under statute. Appellant was not afforded a restitution hearing, nor did the district court make any findings regarding restitution. With regard to the costs imposed by court administration, Crow Wing County Court Administration is not a “direct victim” of appellant’s convictions for possession of a controlled substance and drug paraphernalia under the Jones analysis. And the claimed loss appears to represent the costs of seating a jury when appellant failed to appear for his first jury trial. If appellant is again convicted of the offense, the prosecution may be entitled to $100 in prosecution costs under Minn. Stat. § 631.48 (2004). But court administration is not entitled to any costs under that statute or under the restitution statute.