This opinion will be unpublished and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
Christopher Sean Daniels,
Filed June 26, 2007
Hennepin County District Court
File No. 0535147
Lori Swanson, Attorney General, 1800
Michael O. Freeman, Hennepin County Attorney, Michael Richardson, Assistant County Attorney, C-2000 Government Center, 300 South 6th Street, Minneapolis, MN 55487 (for respondent)
John M. Stuart, State Public Defender, Rochelle R. Winn,
Assistant Public Defender,
Considered and decided by Lansing, Presiding Judge; Halbrooks, Judge; and Hudson, Judge.
Appellant challenges his conviction of felon in possession of a firearm and two counts of second-degree assault, arguing that (1) the evidence is insufficient to support his conviction on one count of second-degree assault, (2) he was denied his right to a unanimous verdict, and (3) his rights were prejudiced by the state’s impermissible amendment of the complaint. Because (a) the evidence is sufficient to support the verdict, (b) the district court’s failure to give a unanimity instruction did not affect appellant’s substantial rights, and (c) the state did not constructively amend the complaint, we affirm.
On November 11,
2004, officers from the Minneapolis Police Department were dispatched to the
apartment of Ebony Montgomery in
At one point, appellant
both stood outside one of the apartment windows and knocked on the front door
and asked Smith to come outside to talk.
On the morning of
November 12, 2004, as
Because officers believed that appellant had been living with Smith, they obtained and executed a search warrant on November 22, 2004, to search Smith’s residence for a firearm and any ammunition. Smith testified that although appellant’s name was not on the lease, he had been staying at her apartment with her and her children, and he had his own key to the apartment. The officers found a Smith and Wesson semi-automatic pistol in a black nylon bag in a closet in Smith’s apartment. The bag also contained ammunition as well as “books and manuals related to a vehicle.” Smith told the officers that the gun they found was not hers and that she had no knowledge of there ever being a gun in the apartment. Smith testified that she had previously seen the black nylon bag in appellant’s van.
Sergeant Bruce Carpenter testified that appellant had borrowed his brother’s 1996 black, full-size, GMC van in November 2004, and that the vehicle owner’s manuals found in the black nylon bag matched the year, make, and model of the van. In addition, both Montgomery and Janika testified that appellant was driving a black van on November 11, 2004.
Appellant was charged with one count of felony possession of a firearm in violation of Minn. Stat. § 624.713, subd. 1(b) (2004), and two counts of second-degree felony assault in violation of Minn. Stat. § 609.222, subd. 1 (2004) (one count for assaulting Montgomery on November 11, 2004, and one count for assaulting Montgomery on November 12, 2004). A jury found appellant guilty of all charges, and appellant was subsequently sentenced to 60 months on count I, and concurrent sentences of 51 months on count II and 58 months on count III. This appeal follows.
argues that the evidence is insufficient to support his conviction of second-degree
assault for the events that took place on November 11, 2004. In 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 a 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 (
Under Minn. Stat. § 609.222, subd. 1 (2004), whoever assaults another with a dangerous weapon is guilty of second-degree assault. “Assault” is defined, in part, as “[a]n act done with intent to cause fear in another of immediate bodily harm or death.” Minn. Stat. § 609.02, subd. 10(1) (2004). “‘Dangerous weapon’ means any firearm, whether loaded or unloaded, or any device designed as a weapon and capable of producing death or great bodily harm.” Minn. Stat. § 609.02, subd. 6 (2004).
argues that the evidence is insufficient to show that he intended to cause fear
in another of immediate bodily harm on November 11, 2004. The phrase “‘[w]ith intent to’ . . . means
that the actor either has a purpose to do the thing or cause the result
specified or believes that the act, if successful, will cause that
result.” Minn. Stat. § 609.02,
subd. 9(4) (2004). “Intent may be proved
by circumstantial evidence, including drawing inferences from the defendant’s
conduct, the character of the assault, and the events occurring before and
after the crime.” In re Welfare of T.N.Y., 632 N.W.2d 765, 769 (Minn. App. 2001)
(citing Davis v. State, 595 N.W.2d
520, 525-26 (
record shows that on November 11, law-enforcement officers were dispatched to
Appellant cites to
this court’s decision in T.N.Y. for
the proposition that holding a gun, without pointing it, is “insufficient
evidence to support a finding of intent to cause fear of immediate bodily
harm.” But in T.N.Y., there was testimony that the defendant “was not sighting
the weapon, did not point the gun in a threatening way directly at the
officers, or indicate by his voice or manner that he was going to shoot.” 632 N.W.2d at 767-68. Furthermore, the defendant had not exhibited
prior threatening behavior and had not made any threatening comments or actions
that would cause one to conclude that he intended to shoot the gun.
Appellant also argues that the district court denied him the right to a unanimous verdict when it instructed the jury that it could convict him for being a felon in possession of a firearm in violation of Minn. Stat. § 624.713, subd. 1 (2004), if it found that appellant possessed a weapon on either November 11, 2004 or November 12, 2004. Appellant did not request a specific unanimity instruction, object at trial to its absence, or raise the issue in a motion for a new trial.
are allowed “considerable latitude” in the selection of language for the jury
instructions. State v. Baird, 654 N.W.2d 105, 113 (
A defendant waives the right
to contest the district court’s jury instructions on appeal if they fail to
object to the instructions at trial. State v. Begbie, 415 N.W.2d 103, 105
(Minn. App. 1987), review denied
(Minn. Jan. 20, 1988); see also Minn.
R. Crim. P. 26.03, subd. 18(3). But
“a failure to object will not cause an appeal to fail if the instructions
contain plain error affecting substantial rights or an error of fundamental
law.” State v. Cross, 577 N.W.2d 721, 726 (
“[T]his court has cautioned
against using ‘either/or’ jury instructions because they are unclear and
potentially raise doubt about the unanimity of the jury verdict.” State
v. Stempf, 627 N.W.2d 352, 355 (
In Stempf, the defendant was charged with one count of possession of a
Here, the complaint alleged
that “on or about November 11, 2004 or November 12, 2004,” appellant possessed
a firearm after having been convicted or adjudicated delinquent of a crime of
violence. The probable cause portion of
the complaint alleges the following two acts of possession: (1) on November 11, 2004,
But even if the district court’s failure to give a specific unanimity instruction constitutes plain error, we need not reverse unless the error affected appellant’s substantial rights. An error affects substantial rights if it was prejudicial and had an impact on the outcome of the case. Griller, 583 N.W.2d at 741. Here, the jury concluded that appellant was guilty of two counts of second-degree assault for the events that took place on both November 11 and November 12, which means that the jury necessarily found that appellant assaulted another with a dangerous weapon (here, a gun). Thus, this is not a case where, had the district 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 that the record did “not permit a conclusion that violation of [defendant’s] right to a unanimous verdict may have been harmless error” where “the jury could have believed appellant’s defense as to one act but not the other”). Rather, the jurors clearly all believed that appellant possessed a gun on both November 11 and November 12 and could not have found appellant guilty of one incident and not guilty of the other. Accordingly, we conclude that the district court’s error did not affect appellant’s substantial rights.
Finally, although the state did not move to amend the complaint, appellant argues that the state constructively amended the complaint when the prosecutor allegedly argued to the jury during closing that appellant was guilty of being a felon in possession, in part, based on the gun that police found in Smith’s apartment on November 22, 2004. Appellant contends that his conviction should be reversed because the felon-in-possession charge was based on appellant’s alleged possession of a handgun on either November 11, 2004 or November 12, 2004, but not based on the discovery of the gun on November 22, 2004.
to trial the [district] court is relatively free to allow an amendment charging
an additional offense in a criminal complaint.”
State v. Guerra, 562 N.W.2d
10, 12 (
Guerra, appellant argues that the
prosecutor’s “closing and rebuttal arguments resulted in the constructive
amendment of the complaint.” In Guerra, the defendant, Javier Guerra,
was charged with one count of possession of a stolen firearm and two counts of
possession of a short-barrelled shotgun.
record in Guerra indicated that all
parties, including the district court judge, believed that the charge of possession
of a stolen firearm stemmed from the possession of the shotguns found in the
apartment and not the handguns.
appeal, the defendant argued that the district court constructively amended the
But the facts here
are distinguishable from Guerra. Appellant was charged in the complaint with
felony possession of a firearm based on the events occurring on November 11 and
November 12. While the prosecutor
referred during closing argument to evidence seized by the police during the
search of Smith’s residence on November 22, including the black nylon bag
containing a gun and owner’s manuals belonging to a vehicle allegedly driven by
appellant in November 2004, the state did not seek to charge appellant with
felony possession, or any other offense, based on the November 22 search. Instead, the prosecutor referenced the
evidence seized on November 22 in an attempt to bolster its argument that
appellant possessed a gun on November 11 and 12. Moreover, unlike Guerra, the district court did not amend the jury instructions to
include the November 22 search. Rather,
the district court instructed the jury that the elements of the felon-in-possession
offense were: “first, [appellant] knowingly shipped, transported, possessed or
received a firearm,” and “[s]econd, [appellant’s] acts took place on or about
November 11th or 12th, 2004, in