This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Juan Ramon Flores,
Filed March 27, 2007
Clay County District
File No. K2-05-1283
Attorney General, Tibor M. Gallo, Assistant Attorney General, 1800 Bremer
Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Brian J. Melton,
Clay County Attorney, 807 N. 11th Street, P.O. Box 820, Moorhead, MN 56561 (for
John M. Stuart,
State Public Defender, Rochelle R. Winn, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425,
55414 (for appellant)
Considered and decided by Hudson, Presiding Judge; Randall,
Judge; and Dietzen, Judge.
U N P U B L I S H E D O P I N I O N
challenges his conviction of conspiracy to commit first-degree controlled
substance crime, arguing that the district court erred in (1) convicting
appellant of a crime not charged in the complaint, and (2) erroneously
instructing the jury. Because the
district court properly applied the law and did not abuse its discretion, we
In June 2005, a paid
informant contacted Detective Jeff Larson of the Moorhead Police Department and
stated that Manuel Reyes had offered to sell her 1/4 gram of methamphetamine. The next day, the informant purchased the
drugs from Reyes, and she later called Reyes and told him that she wanted two more
ounces by the end of the day. Reyes told
her that he could not get two ounces, but that he could get 1 1/2 ounces for
$3,000. The informant agreed, and they
arranged a meeting for later that day.
The informant, who carried a
wire in her purse and was followed by police, drove to Reyes’s apartment
building to purchase the drugs. Reyes
approached her car and asked for the money.
The informant refused to pay until she received the drugs. A Ford Expedition then arrived and parked
behind the building. Reyes approached the
Expedition, conversed with its occupants, and then returned to the informant’s
car to ask for the money. When the
informant again refused to hand over the money until she received the drugs, Reyes
went back to the Expedition, and returned with appellant Juan Ramon Flores. Flores and Reyes then entered the informant’s
car, and Flores showed her the drugs. Police then stopped the car, seized several
bags of methamphetamine, and arrested Flores,
Reyes, and Ricky Ramirez (the other person from the Expedition).
a jury trial, Flores was convicted of
first-degree conspiracy to commit a controlled substance crime and sentenced to
86 months in prison. This appeal
D E C I S I O N
argues that the
complaint failed to state the proper statutory authority for a charge of first-degree
conspiracy to commit controlled substance crime and failed to identify the
“overt act” of the conspiracy, and, therefore, his conviction must be
overturned. Appellant concedes that this
issue was not raised before the district court.
We review alleged error not
raised before the district court under the plain-error doctrine. State
v. Griller, 583 N.W.2d 736, 740 (Minn.
1998). The plain-error doctrine requires
that there be (1) error; (2) that is plain; and (3) that affects the
defendant’s substantial rights. Id. To meet the third prong, a defendant
must show that the error was prejudicial and affected the outcome of the case. Id. at 741. If these three prongs are met, we then consider
whether to address the error to ensure the fairness and integrity of the
judicial proceedings. Id.
first argues that the complaint was deficient for failure to state the proper statutory
authority. “The charges upon which the
state may proceed at trial must be included within ‘the indictment, complaint
or tab charge.’” State v. Gisege, 561 N.W.2d 152, 156 (Minn. 1997) (quoting Minn. R. Crim. P.
10.01). The complaint must be “interpreted
so as to uphold its validity whenever . . . reasonably possible.” State v.
Pratt, 277 Minn.
363, 365, 152 N.W.2d 510, 512-13 (1967). The statement of the offense normally is
sufficient “if [it] spells out all essential elements in a manner which has substantially
the same meaning as the statutory definition.” Id., 152 N.W.2d
at 512. See also State v. Ewald, 373 N.W.2d 358, 359 (Minn. App. 1985)
(finding that a complaint was sufficient where the “essential facts
constituting the offense were stated” and the failure to list an element of the
offense was not significant).
Here, the complaint charged Flores with first-degree conspiracy to commit a
controlled substance crime, sale in violation of Minn. Stat. § 152.021,
subd. 1(1) (2004) (making it illegal to sell 10 grams or more of
methamphetamine) and Minn. Stat. § 609.05 (2004) (liability for crimes of another). Minn. Stat. § 609.05, subd. 1 states
that “[a] person is 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.” The complaint did not reference Minn. Stat.
§ 152.096 (2004) (prohibiting drug conspiracies) or Minn. Stat.
§ 609.175 (2004) (conspiracy). But
by its very language, the complaint charged appellant with conspiracy. As such, the state’s argument that no error occurred
But, even assuming arguendo
that error did occur and that such error was plain, the third prong of the Griller test—prejudice to the
defendant—is dispositive. When the wrong
statute is cited in a complaint or indictment, “[u]nless there is actual proof
that defendant has in fact been misled as to the charge brought against him, to
his prejudice, it is not ground for invalidating the conviction after a fair
trial or a plea of guilty.” State v. Clark, 270 Minn. 538, 552, 134 N.W.2d 857, 867 (1965). Thus, where a defendant does not object to
the sufficiency of the complaint at trial and the evidence all related to the
offense convicted of (rather than the statute cited in the complaint), “[i]t
can hardly be open to question that defendant’s counsel understood the nature
of the charge.” Id.
at 549-50, 134 N.W.2d at 865.
was not misled. The complaint stated
that he was being charged with first-degree conspiracy to commit a controlled
substance crime. He did not object to
the complaint for lack of notice at the trial and his defense at trial was
consistent with a conspiracy charge. On
this record, it appears that Flores had ample
notice that he was charged with conspiracy and was not prejudiced by the manner
in which the crime was charged.
Flores also argues that the complaint
“failed to mention what overt act or acts made up the conspiracy.” Because this alleged error was not objected
to at trial, it is also reviewed under the plain error test. See
Griller, 583 N.W.2d at 740 (requiring plain error that affected the
defendant’s substantial rights if error is unobjected to at trial). Substantial rights are affected “if the error
was prejudicial and affected the outcome of the case.” Griller,
583 N.W.2d at 741. The appellant bears a
“heavy burden” of persuasion on this prong of the test. Id.
Flores argues that he was prejudiced by not knowing what
overt act was specifically alleged against him.
He claims that the “vague notice that someone had committed some overt acts
. . . is not good enough.” But the
complaint charges that Flores “did intentionally, aid, advise, hire, counsel,
or conspire with another or otherwise procure the other to commit a crime, to
wit: to unlawfully sell one or more mixtures of a total weight of ten grams or
more containing Methamphetamine.” The
probable cause statement alleges that the informant arranged to purchase drugs
from Reyes, that the informant arrived at Reyes’s apartment to buy the drugs,
that Flores entered the informant’s vehicle carrying what appeared to be an oil
can, and unscrewed the bottom of the oil can to reveal the drugs. These are the same events that the state’s
witnesses testified to at trial, and these facts provide ample support for an
allegation that Flores committed an overt act
towards the sale of drugs. Thus, Flores has not met his heavy burden of demonstrating
Flores relies on State v. Duffy,559 N.W.2d 109, 111 (Minn. App. 1997) to argue that the complaint
itself must identify the overt act. But Duffy does not impose that
requirement. In Duffy,the district court
dismissed a conspiracy charge for lack of probable cause where the “complaint
lacked either direct evidence or sufficient circumstantial evidence of an overt
act in actual furtherance of a sale—something
more than talk.” Id.(emphasis in original). The district court dismissed the charge
because the facts did not support the occurrence of an overt act, and not (as Flores alleges) because the complaint failed to
specifically identify the overt act. Id.
Appellant argues that the district court erred in its instruction
to the jury by misidentifying the overt act.
On review, we “afford a [district] court significant discretion to craft
the jury instructions.” State v. Kuhnau,622 N.W.2d 552, 555 (Minn.
2001). Because Flores
did not object to the jury instructions at trial, he has waived any right to
challenge the instructions unless they were so misleading as to constitute
plain error. Griller, 583 N.W.2d at 740. See
also State v. Gutierrez, 667
N.W.2d 426, 433 (Minn.
2003) (applying the plain-error rule to unobjected-to jury instructions); Minn.
R. Crim. P. 26.03, subd. 18(3) (“No party may assign as error any portion of
the charge or omission therefrom unless the party objects thereto before the
jury retires to consider its verdict.”).
A jury instruction
is error if it materially misstates the law. State v.
Moore, 699 N.W.2d 733, 736 (Minn. 2005). Jury instructions must be viewed in their
entirety to determine whether they fairly and adequately explain the law of the
case. State v. Flores, 418 N.W.2d 150, 155 (Minn. 1988).
The court’s instructions must define the crime charged. Kuhnau,
622 N.W.2d at 556.
Conspiracy requires “(1) an agreement
between two or more people to commit a crime and (2) an overt act in
furtherance of the conspiracy.” Id.; State v. Olkon, 299 N.W.2d 89, 104 (Minn. 1980); Minn. Stat.
§ 609.175, subd. 2 (2004). “An overt act
can be the slightest action on the part of a conspirator.” State
v. Stewart, 643 N.W.2d 281, 297 (Minn.
2002); State v. St. Christopher, 305 Minn. 226, 235, 232
N.W.2d 798, 804 (1975). The overt act
must be “something more than talk.” Duffy, 559 N.W.2d at 111 (affirming dismissal of conspiracy charge
where facts did not show an “overt act”); see
also Stewart, 643 N.W.2d at 297
(noting that although the record indicates “discussion about committing a
crime,” nothing in the record shows an overt act).
Flores argues that the
instructions misled the jury to believe that an agreement to commit a crime
could constitute the overt act because the district court stated, “[t]he overt
acts alleged in this case are aid, advise, hire, counsel or conspire with
another to unlawfully sell one or more mixtures of a total weight of 10 grams
or more containing methamphetamine.”
Appellant is correct that this part of the instruction is
But jury instructions
must be viewed in their entirety, and when taken as a whole, we do not believe
that the overt act requirement in the jury instruction was deficient. See Flores, 418 N.W.2d at 155. The district court instructed the jury that “whoever conspires
with another to commit a crime is guilty of conspiracy if one or more of the
parties to the conspiracy does some overt act in furtherance of the conspiracy.” It also instructed that an “overt act
is any action taken by one of the conspirators with the intention of furthering
the accomplishment of any object of the conspiracy. The act does not itself have to be a criminal
act, but it must be done with the purpose of furthering the conspiracy.” Thus we conclude that the jury instructions
viewed in their entirety, and taken as a whole, satisfactorily require an overt
But even if the jury
instruction was plain error, appellant must show that the unobjected-to jury
instruction was prejudicial and affected the outcome of the case. Id. at 741. Here, the record contains substantial
evidence of overt acts to support the conviction. Specifically, the prosecution presented
evidence that appellant was involved in the preparation of the drug sale,
including going to the apartment with $3,000 worth of methamphetamine, bringing
the drugs to the informant’s car, and opening the container where the drugs
were concealed. On this record, we
cannot conclude that the outcome would have been affected by a more explicit
definition of overt act as an action.
Therefore, Flores has not shown
prejudice and fails on the third prong of the plain-error test. Id. at 740.