This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
IN COURT OF APPEALS
State of Minnesota,
Stearns County District Court
File No. K0035707
Lori Swanson, Attorney General, John B. Galus, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Janelle Kendall, Stearns County Attorney,
John M. Stuart, State Public Defender, Benjamin J. Butler,
Assistant Public Defender,
Considered and decided by Stoneburner, Presiding Judge; Halbrooks, Judge; and Huspeni, Judge.*
Appellant challenges his conviction of first-degree assault, arguing that the district court committed plain error by instructing the jury on aiding and abetting. Appellant also challenges his sentence, asserting that the district court lacked authority to submit aggravating sentencing factors to the jury and erroneously instructed the jury regarding sentencing factors, and that the evidence does not support the jury’s finding that the victim was treated with particular cruelty. We affirm.
G.L. owed appellant Ralph Mario
Huertas money for crack cocaine, which G.L. had obtained from Huertas. After failing to get the money from his
brother, G.L. told Huertas he could get the money from his home in another
town. G.L got into a car with Huertas
and Huertas’s girlfriend, Shannon Duncan, thinking that
Huertas testified that he did not intervene in the assault because he feared Slim. Huertas stated that, after the assault, Slim gave him the tire iron and told him to wipe it off. Huertas used a rag in the back of the car to clean off the tire iron, and later, from the jail, tried to get his sister to have someone retrieve and further clean the tire iron. Huertas admitted that he lied to the police when, at the time of his arrest, he told them that he did not know anything about the assault. Huertas was subsequently charged with first- and second-degree assault.
At trial, the district court, without objection, instructed the jury on the elements of first- and second-degree assault and liability for aiding and abetting. The jury found Huertas guilty of first-degree and second-degree assault.
After the jury delivered guilty verdicts, the district court submitted to the jury the question: “Was [G.L.] treated with particular cruelty for which [Huertas] should be held responsible?” The district court instructed the jury that its answer to the interrogatory would “assist the [c]ourt in determining the defendant’s sentence” and would make Huertas eligible for an “aggravated sentence.” The district court further instructed the jury:
Particular cruelty involves conduct and harm more serious than the typical offense, but does not involve the elements of the offense itself. For example, in determining whether the defendant committed Assault in the First Degree with particular cruelty, you may not consider whether the defendant inflicted great bodily harm upon [G.L.]. Instead, you may consider: [f]ailure to render aid to [G.L.] or failure to summon medical authorities. Or the location of the assault.
The jury answered the question “yes,” and the district court imposed an upward durational departure from the presumptive sentence. This appeal followed.
argues that the district court committed plain error by instructing the jury on
aiding and abetting because the evidence does not support that theory of
culpability. A party may not challenge a
jury instruction unless the party objects to the instruction before the jury
retires to deliberate.
Huertas does not challenge the accuracy of the wording of the aiding and abetting instruction, but argues that there is no evidence in the record to support a finding that he aided and abetted the assault against G.L. We disagree.
A defendant may be liable for the
crimes of another if the defendant “intentionally aids, advises, hires,
counsels, or conspires with or otherwise procures” the principal to commit the
crime. Minn. Stat. § 609.05, subd. 1
(2002). Mere presence at the scene of a
crime does not by itself prove that a person aided or abetted, because
inaction, knowledge, or passive acquiescence does not rise to the level of
criminal culpability. State v. Russell, 503 N.W.2d 110, 114 (
Huertas argues that there was no evidence that he assisted or encouraged Slim to assault G.L. or that he had a legal duty to stop the assault, and because G.L. testified that only one person assaulted him, the evidence does not support the instruction. But Huertas ignores the circumstantial evidence that he and Slim together were engaged in trying to collect money for drugs from G.L. Even if the jury believed that Slim, rather than Huertas, actually struck G.L., the evidence supports a theory that Huertas was aiding and abetting Slim in pursuit of payment for drugs or punishment for failure to pay for drugs. The district court did not err in giving an aiding and abetting instruction.
next asserts that the district court lacked authority to submit aggravating
sentencing factors to the jury because the 2005 amendments to the sentencing
guidelines, permitting sentencing juries, do not apply to this case. Huertas has conceded that this issue is
governed by Hankerson v. State, 723
N.W.2d 232 (
Huertas next asserts that
unobjected-to jury instructions during the sentencing phase of the trial
contained two errors of fundamental law that were plain and prejudicial. As noted above, we review such a claim under
the three-prong test set out in Griller. See Griller,
583 N.W.2d at 740. “The district court
is allowed considerable latitude when selecting language for jury
instructions.” State v. Johnson, 699 N.W.2d 335, 339 (
Huertas first asserts that the
district court erred by telling the jury that its answers to the
aggravating-factor interrogatory would “assist the [c]ourt in determining the
defendant’s sentence” and would make Huertas eligible for an “aggravated
sentence.” The recently published
CRIMJIG instruction on sentencing proceedings states, in part: “Your answers
will assist the Court in determining the defendant’s sentence.”10
Huertas also asserts that the
district court erred in defining “particular cruelty” by specifically referring
to the location of the assault and failure to render aid, the very evidence the
state intended to rely on to establish particular cruelty. But the instruction correctly states the law
and is not misleading. See State v. Jones, 328 N.W.2d 736, 738
(Minn. 1983) (holding that defendant’s acts in leaving a beaten victim and
failing to anonymously summon medical aid support a determination that the
crime was committed in a particularly cruel way); see also State v. Norton, 328 N.W.2d 142, 146 (Minn. 1982)
(indicating that taking a victim to a secluded corn field to assault her
contributed to the particular cruelty of the assault). A district court may tailor a proposed jury
instruction to fit the facts of the case.
State v. McCuiston,514 N.W.2d 802, 804 (
Furthermore, the instruction answers
Huertas’s argument that the jury was required to have some guidance in order to
determine that this crime was more serious than the typical first-degree
assault in order to find particular cruelty.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.