This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).







State of Minnesota,





Gary Schwich,




Filed June 26, 2007


Hudson, Judge


Scott County District Court

File No. CR-05-7048


Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, Minnesota 55101-2134; and


Patrick J. Ciliberto, Scott County Attorney, Michael J. Groh, Assistant County Attorney, Justice Center JC340, 200 Fourth Avenue West, Shakopee, Minnesota 55379 (for respondent)


Samuel A. McCloud, Carson J. Heefner, McCloud & Boedigheimer, P.A., Suite 1000, Circle K, Box 216, Shakopee, Minnesota 55379 (for appellant)


            Considered and decided by Dietzen, Presiding Judge; Hudson, Judge; and Collins, Judge.*

U N P U B L I S H E D   O P I N I O N


Appellant Gary Schwich challenges his conviction of and sentence for aiding and abetting third-degree murder in violation of Minn. Stat. § 609.195(b) (2004), arguing that: (1) there is insufficient evidence to corroborate his accomplice’s testimony; (2) there is insufficient evidence to support his conviction; (3) the district court erred in the manner in which it permitted the state to impeach his expert witness; (4) the district court erred by failing to obtain appellant’s valid waiver of a 12-person sentencing jury; (5) the district court erred by sentencing him to an upward durational departure from the guidelines presumptive sentence; and (6) Minn. Stat. § 244.10, subd. 5 (2006), is an unconstitutional legislatively-enacted rule of criminal procedure.

Because there is sufficient evidence to corroborate appellant’s accomplice’s testimony and to support his conviction; the district court secured appellant’s waiver of a 12-person sentencing jury; the district court did not abuse its discretion in the manner in which it permitted the state to cross-examine appellant’s expert witness, nor in sentencing; and Minn. Stat. § 244.10, subd. 5 (2006), is constitutional, we affirm.


            On March 11, 2005, Scott County sheriffs arrived at appellant’s home responding to a call that a woman had been found dead in his hot tub.  Appellant and Jeanne Stone, his other female houseguest, initially told police that the victim had not been using drugs.  But Stone later recanted her statement and admitted that she had injected the victim with methamphetamine.  Stone stated that appellant had prepared the dose in order to induce the victim into having sexual intercourse with him.  The police executed a search warrant at appellant’s home and retrieved evidence of methamphetamine, burnt syringes, and drug paraphernalia. 

An autopsy produced evidence that the victim had injected methamphetamine.  The death certificate lists cardiac arrhythmia as the immediate cause of death.  The underlying causes of death are listed as acute methamphetamine and ethanol intoxication and arrhythmogenic right ventricular cardiomyopathy.  The state charged appellant with aiding and abetting third-degree murder, aiding and abetting fifth-degree possession, and aiding and abetting second-degree manslaughter in violation of Minn. Stat. §§ 152.025, subd. 2(1), 609.05, subd. 1, .195(b), .205(1) (2004). 

            At trial, Stone testified that appellant prepared the methamphetamine that she injected into the victim.  To corroborate Stone’s testimony, the state presented Jessica Page, appellant’s ex-girlfriend and an acquaintance of the victim.  Page testified that (1) appellant told her that Stone injected the victim with methamphetamine; (2) he hid the syringe Stone used; (3) he washed the robe he had been wearing that evening to dispose of methamphetamine residue in the robe’s pocket; and (4) appellant usually burned the syringes that he used to inject methamphetamine. 

The state called two expert medical witnesses.  Shannon Mackey-Bojack, M.D., testified that acute methamphetamine intoxication can cause cardiac arrhythmia and the victim’s blood-methamphetamine concentration was well within the lethal range.  Lindsey Thomas, M.D., concurred, adding that the absence of metabolized methamphetamine (amphetamine) in the victim’s blood evidences that the victim died shortly after injection.  Each doctor testified that methamphetamine played a substantial role in contributing to the victim’s death.  But on cross-examination, neither doctor could state to a reasonable degree of medical certainty that methamphetamine caused the victim’s death. 

The defense called one expert witness, John Plunkett, M.D., who testified that lethal levels of methamphetamine vary considerably.  He testified that he could not state to a reasonable degree of medical certainty that methamphetamine caused the victim’s death or contributed to her death.  But on cross-examination, Dr. Plunkett conceded that the level of methamphetamine in the victim’s blood could be lethal and that the drug could have potentially contributed to the victim’s death.

The state attempted to impeach Dr. Plunkett by questioning him about past expert trial testimony that he had supplied on behalf of various defendants, but the state did not inquire into the substance of the testimony.  The defense did not object to this line of questioning. 

A jury convicted appellant on all counts and found beyond a reasonable doubt the aggravating factor of victim vulnerability.  The district court sentenced appellant to 150 months in prison for aiding and abetting third-degree murder—an upward durational departure from the guidelines’ presumptive sentence.  The district court stayed execution of the sentence for the fifth-degree possession charge and declined to impose sentence on the second-degree manslaughter charge.  This appeal follows. 



It is uncontested that Stone is appellant’s accomplice.  See State v. Gail, 713 N.W.2d 851, 863 (Minn. 2006) (stating that a witness is an accomplice if he or she could have been indicted and convicted for the crime for which the accused is charged).  It is also uncontested that the district court failed to give a corroboration instruction.  On this state of the record, appellant argues that there is insufficient evidence to corroborate Stone’s testimony that he prepared the methamphetamine she injected into the victim. 

“When reviewing the sufficiency of evidence to corroborate accomplice testimony, we view the evidence in the light most favorable to the state and all conflicts in the evidence are resolved in favor of the verdict.”  Turnage v. State, 708 N.W.2d 535, 543 (Minn. 2006) (quotation omitted).  Further, “[a] conviction cannot be had upon the testimony of an accomplice, unless it is corroborated by such other evidence as tends to convict the defendant of the commission of the offense.”  Minn. Stat. § 634.04 (2004); State v. Jackson, 726 N.W.2d 454, 460 (Minn. 2007).

Respondent urges this court not to reach this issue, arguing that appellant courted error by requesting the court to not give a corroboration instruction.  The doctrine of invited error prevents a criminal defendant from courting error to preserve a basis for appeal and force a new trial.  State v. Kortness, 284 Minn. 555, 558, 170 N.W.2d 210, 213 (1969).  But respondent’s reliance on this rule is misplaced because appellant does not challenge the district court’s failure to give the instruction; he simply claims that there is insufficient evidence to corroborate Stone’s testimony.  Accordingly, we address appellant’s claim.

Corroborating evidence need not establish a prima facie case of the defendant’s guilt.  Jackson, 726 N.W.2d at 460.  It is sufficient if “it confirms the truth of the accomplice’s testimony.”  State v. McKenzie, 532 N.W.2d 210, 223 (Minn. 1995).  The evidence “must link or connect the defendant to the crime,” and “must point to the defendant’s guilt in some substantial degree.”  State v. Adams, 295 N.W.2d 527, 533 (Minn. 1980).  Corroborating evidence may be circumstantial or direct and the quantum of evidence needed is dependent upon the circumstances of each case.  Id.  Furthermore:

Corroborating evidence may be secured from the defendant’s association with those involved in the crime in such a way as to suggest joint participation, as well as from the defendant’s opportunity and motive to commit the crime and his proximity to the place where the crime was committed.  The defendant’s entire conduct may be looked to for corroborating circumstances.  If his connection to the crime may be fairly inferred from those circumstances, the corroboration is sufficient. 


Id. (citation omitted).

Here, there is independent evidence that appellant possessed methamphetamine on the night of the incident.  He and Stone injected methamphetamine that evening.  The victim had a syringe mark on her body and a lethal level of methamphetamine in her system.  Page testified that appellant told her that Stone injected the victim with methamphetamine; Stone admits she did so.  Appellant told Page that he had concealed the syringe Stone used.  This evidence shows that appellant had an association with the victim, and it links him to the instrumentalities that contributed to her death.  The evidence sufficiently corroborates Stone’s testimony. 

Appellant also challenges the district court’s denial of his motion to exclude Stone’s testimony, arguing that the district court erred by concluding that there was sufficient corroborating evidence to warrant admission of Stone’s testimony.  The district court has discretion when making evidentiary rulings and will not be reversed absent an abuse of such discretion.  State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003).

Here, the district court found that the proposed testimony of appellant’s ex-girlfriend, Page, and the physical evidence sufficiently corroborated Stone’s testimony.  Because appellant does not contest any of the district court’s findings or argue that the district court’s findings do not support its decision, we conclude that the district court did not abuse its discretion. 


            Appellant argues that there is insufficient evidence to support the jury’s verdict.  Appellate courts review a claim of insufficiency of the evidence to support a verdict by determining whether “given the facts in the record and any legitimate inferences that can be drawn from those facts, a jury could reasonably find that the defendant was guilty of the charged offense.”  Gail, 713 N.W.2d at 862 (quotation omitted).  “We do not retry the facts, but instead we view the evidence in a light most favorable to the jury’s verdict and assume that the jury believed the state’s witnesses and disbelieved any evidence to the contrary.”  State v. Pierson, 530 N.W.2d 784, 787 (Minn. 1995).  All reasonable inferences are drawn in favor of the state.  Jackson, 726 N.W.2d at 460.  Questions of credibility are assumed to have been resolved against the defendant.  Id.  However, where a conviction is secured mostly by circumstantial evidence, this standard of review “is supplemented by the rule that a conviction based on such evidence will be upheld if a detailed review of the evidence and the reasonable inferences from such evidence are consistent only with the defendants [sic] guilt and inconsistent with any rationale hypothesis except that of guilt.”  McKenzie, 532 N.W.2d at 223. 

            A person is guilty of third-degree murder when, “without intent to cause death, [he] proximately causes the death of a human being by, directly or indirectly, unlawfully selling, giving away, bartering, delivering, exchanging, distributing, or administering a controlled substance classified in schedule I or II.”  Minn. Stat. § 609.195(b) (2004).  Methamphetamine is a schedule II controlled substance.  Minn. Stat. § 152.02, subd. 3(3)(b) (2004).  A person is guilty of second-degree manslaughter if the person causes the death of another “by the person’s culpable negligence whereby the person creates an unreasonable risk, and consciously takes chances of causing death or great bodily harm to another.”  Minn. Stat. § 609.205(1) (2004). 

“The fact that a victim was suffering from a condition that might itself have caused death in time does not relieve a defendant of responsibility for an injury that causes death even though he could not reasonably anticipate death would result.”  Walker v. State, 394 N.W.2d 192, 196 (Minn. App. 1986) (quotation omitted), review denied (Minn. Nov. 26, 1986).  “[O]ne whose wrongful act hastens or accelerates the death of another, or contributes to its cause, is guilty of homicide, though other causes co-operate.  And he is guilty if his act was the cause of death.”  State v. Schaub, 231 Minn. 512, 520–21, 44 N.W.2d 61, 65 (1950) (quotation omitted).  In State v. King, this court stated that:

One who inflicts an injury on another is deemed by the law to be guilty of homicide if the injury contributes mediately or immediately to the death of such other.  The fact that other causes contribute to the death does not relieve the actor of responsibility.  So the physical condition of the slain [person] at the time when the act was done, will not excuse or minimize its consequence, if the causal connection between it and the fact of death is made to appear.  It is immaterial that defendant did not know that the deceased was suffering from a condition which facilitated the killing and that he did not reasonably anticipate that his act would cause death. 


367 N.W.2d 599, 602 (Minn. App. 1985) (quoting State v. Smith, 264 Minn. 307, 119 N.W.2d 838, 847–48 (1962)); Walker, 394 N.W.2d at 196. 

Here, there is expert testimony from Dr. Mackey-Bojack and Dr. Thomas that acute methamphetamine intoxication was a substantial contributing factor to the victim’s death.  Stone’s corroborated testimony implicates appellant as the provider of the drug.  Appellant argues that the evidence is insufficient because the medical experts could not testify to a reasonable degree of medical certainty that methamphetamine caused the victim’s death.  But a “reasonable degree of medical certainty” is not a requirement for criminal conviction.  State v. Rhodes, 657 N.W.2d 823, 831 n.1 (Minn. 2003).  The state does not need to prove the actual mechanism of death—only that defendant’s conduct contributed to death.  State v. Torkelson, 404 N.W.2d 352, 357 (Minn. App. 1987), review denied (Minn. Jun. 25, 1987).  In light of the record, we conclude that the jury could have reasonably found that appellant’s conduct proximately caused the victim’s death. 


Appellant argues that the district court erred by permitting the prosecution to impeach appellant’s expert witness by inquiring into his prior defense-commissioned testimony.  The district court has broad discretion to make evidentiary rulings and will not be reversed absent a clear abuse of discretion.  Amos, 658 N.W.2d at 203.  Appellant bears the burden of proving that the trial court abused its discretion and that admission of the evidence was prejudicial.  Id. 

Minnesota Rule of Evidence 702 states that an expert may testify in the form of an opinion if “scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue.”  The challenged cross-examination did not solicit an expert opinion but instead tested the expert’s credibility by proving bias.  On cross-examination, the prosecution is permitted to inquire into the “subject matter of the direct examination and matters affecting the credibility of the witness.”  Minn. R. Evid. 611(b).  “For the purpose of attacking the credibility of a witness, evidence of bias, prejudice, or interest of the witness for or against any party to the case is admissible.”  Minn. R. Evid. 616. 

Minnesota Rule of Evidence 403 permits exclusion of relevant evidence if its “probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.”  Appellant argues that the cross-examination was highly prejudicial because it focused on the expert’s previous testimony in child-abuse cases.  But appellant does not show how this alleged prejudice substantially outweighed the cross-examination’s probative value for showing expert bias.  Moreover, the state did not inquire into the substance of the expert’s previous testimony, nor did every case deal with child abuse.  On this record, the district court did not abuse its discretion by permitting the prosecution to impeach appellant’s expert witness in this fashion.


            Appellant argues that the district court failed to secure a valid waiver of his right to a 12-person sentencing jury.  “[F]undamental constitutional rights can be waived if the waiver is knowing, intelligent, and voluntary.”  State v. Roberts, 651 N.W.2d 198, 201 (Minn. App. 2002), review denied (Minn. Dec. 17, 2002). 

            Appellant has a right to have a jury determine beyond a reasonable doubt the existence of any aggravating factors which permit the district court to upwardly depart from the guidelines’ presumptive sentence.  Minn. Sent. Guidelines II.D; Blakely v. Washington, 542 U.S. 296, 303, 124 S. Ct. 2531, 2537 (2004); State v. Shattuck, 704 N.W.2d 131, 141 (Minn. 2005).  The Minnesota Constitution guarantees felony defendants a 12-person jury.  Minn. Const. art. I, § 6.  A valid waiver requires that (1) both the state and the defendant stipulate to the waiver before the verdict; (2) the court advises the defendant of his right to be tried before a 12-person jury; (3) the defendant agrees personally, either in writing or orally on the record in open court, to the reduced jury; and (4) the court approves the stipulation.  Minn. R. Crim. P. 26.01, subd. 1(4). 

The record contains the following exchange:

Court:      I continue to have a couple of concerns, particularly as it relates to the waiver of the 12-person jury, and one of the things I looked at last night was the statute relating to the Blakely procedure, and that statute says that 12 people must decide the Blakely issues.


A. Att.:    Well, that can be waived too.

Court:      Right.  And that’s what I wanted to do.  I wanted to get that waiver on the record because I didn’t want to have a problem when we got to that.


A. Att.:    Okay.  Subject to my objection to the procedure altogether; but, yeah we will waive it down to a six-person jury on that issue since you have already ruled that if he is convicted you will let that go to the jury.


                         * * * *

Court:      Your attorney tells me that he waives that procedure, and 6 people would be permitted to decide it as opposed to 12.  It is your decision to make, your personal decision to make, and if you tell me that you want 12 people to unanimously decide whether the aggravating factors are present, we will seat 12 people.  If you wish to give up that right, then I would seat six people.


App.:        Six.

Court:      Have you had enough time to think about that?

App.:        Yes.

Court:      Do you wish to have any further time to consult with your attorney about that before you make a decision?


App.:        No, I don’t.

Court:      Do you have any question about it?

App:         No.

Court:      And . . . just to complete the record on the issue, I am presuming that you have a tactical reason why you are asking for six people, and it is not just to save time, or something like that?


A. Att.:    I do have a tactical reason.

Court:      I am not asking what it is.

A. Att.:    Okay.  No.  There is a reason for it, and it is a valid reason, I think.


Court:      Okay.  Again, I just want to complete the record on it because I had some concerns about it, but assuming you — I trust that you have made a tactical decision.  So, I am going to accept the waiver of the six people both on the jury and on the Blakely, unless there is any objection by the State.


State:       No objection, your Honor.  

Based on the record, appellant’s claim that the district court failed to inquire about the waiver or inform him that he had a right to have aggravating factors determined by a 12-person jury is without merit.

            Appellant also argues that the district court erred by not securing a waiver of his right to testify.  But appellant fails to cite any authority indicating that the circumstances required the district court to secure a waiver of his right to testify.  Generally, assignments of error not supported by argument or authority are deemed waived.  State v. Modern Recycling, Inc., 558 N.W.2d 770, 772 (Minn. App. 1997).  Waiver of a right to testify is only required when a defendant has waived his or her right to a jury trial and has agreed to submit to the district court the determination of aggravating factors upon stipulated facts.  State v. Zulu, 706 N.W.2d 919, 926 (Minn. App. 2005).  That is not the case here.  Furthermore, the record shows that appellant voluntarily chose not to exercise his right to testify. 


            Appellant argues that the district court erred by imposing an upward durational departure from the guidelines’ presumptive sentence.  Appellate courts review a district court’s departure from the guidelines’ presumptive sentence for an abuse of discretion.  Shattuck, 704 N.W.2d at 140. 

            District courts have “limited sentencing discretion under the Minnesota Sentencing Guidelines.”  Id.  A district court has discretion to upwardly depart from the guidelines’ presumptive sentence only if aggravating factors are present.  Id.  A victim’s particular vulnerability “due to age, infirmity, or reduced physical or mental capacity,” which the defendant knew or should have known, is an aggravating factor permitting an upward departure from the presumptive guidelines’ sentence.  Minn. Sent. Guidelines II.D.2.b(1). 

When departing from the guidelines, the district court is required to “include a statement of the reasons for departure on the record at the time of sentencing in order for a departure to be allowed.”  Shattuck, 704 N.W.2d at 140.  In addition, the sentence must be “proportional to the severity of the crime.”  Minn. Sent. Guidelines II.D.  “As a general rule, the maximum upward durational departure that can be justified by aggravating circumstances is double the presumptive sentence.”  Shattuck, 704 N.W.2d at 140. 

            Here, the jury found beyond a reasonable doubt that the victim was particularly vulnerable and that appellant knew or should have known about her vulnerability.  The district court imposed a sentence that was less than a double-durational departure.  The district court stated on the record that the reasons for departure were that (1) due to intoxication, the victim was vulnerable; (2) the victim did not regularly use methamphetamine and trusted appellant to prescribe her the proper amount; and (3) appellant gave her methamphetamine in order to satisfy his selfish sexual desires.  The district court stated that this case was more onerous than the typical drug-related third-degree murder case because the supplier was not a seller, but a trusted friend of the victim.  The district court did not abuse its discretion by imposing an upward durational departure. 


Appellant challenges the constitutionality of Minn. Stat. § 244.10, subd. 5 (2006), arguing that the legislature does not have the authority to enact rules of criminal procedure.  The constitutionality of a statute is a question of law which we review de novo.  Everything Etched, Inc. v. Shakopee Towing, Inc., 634 N.W.2d 450, 453 (Minn. App. 2001), review denied (Minn. Dec. 11, 2001).  “Minnesota statutes are presumed constitutional, and the party challenging a statute on constitutional grounds must demonstrate, beyond a reasonable doubt, that the statute violates a provision of the constitution.”  Shattuck, 704 N.W.2d at 135. 

The Minnesota Constitution states that the powers of government are divided among the legislature, judiciary, and the executive branches.  Minn. Const. art. III, § 1.  No branch of government “shall exercise any of the powers properly belonging to either of the others.”  Id.  “[C]ourts have the power to determine what is judicial and what is legislative; and if it is a judicial function that the legislative act purports to exercise, this court must not hesitate to preserve what is essentially a judicial function.”  State v. Losh, 721 N.W.2d 886, 891 (Minn. 2006) (quotation omitted) (holding that Minn. Stat. § 244.11, subd. 3 (2004) violates the separation of powers under the Minnesota Constitution). 

The legislature determines matters of substantive law.  State v. Johnson, 514 N.W.2d 551, 554 (Minn. 1994) (holding that Minn. Stat. § 609.131, subd.1 (1992) was an unconstitutional legislatively enacted rule of procedure).  “The legislature has the power to declare what acts are criminal and to establish the punishment for those acts.”  State v. Lindsey, 632 N.W.2d 652, 658 (Minn. 2001) (citing State v. Olson, 325 N.W.2d 13, 17–18 (Minn. 1982)). 

The judiciary regulates the procedure by which guilt or innocence is determined.  Id.  The Minnesota Supreme Court has “primary responsibility under the separation of powers doctrine for the regulation of evidentiary matters and matters of trial and appellate procedure.”  Id. (quotation omitted).  Authority over procedural matters “is not derived from any grant of authority by the legislature, but from the court’s inherent power.”  Id. at 659.  But this authority only extends to “a court’s unique judicial functions.”  State v. Chauvin, 723 N.W.2d 20, 24 (Minn. 2006) (quotation omitted). 

A statute is substantive when it “creates, defines, and regulates rights.”  Johnson, 514 N.W.2d at 554 (quotation omitted).  Alternatively, a statute is procedural “when it neither creates a new cause of action nor deprives defendant of any defense on the merits.”  Id. (quotation omitted).  “[I]n matters of procedure rather than substance, the Rules of Criminal Procedure take precedence over statutes to the extent that there is any inconsistency.”  Id. at 554 (quotation omitted).  But, “a statute purporting to govern criminal procedure need not conflict with the rules of procedure in order to violate the separation of powers and be struck down by this court.”  Losh, 721 N.W.2d at 891. 

Minnesota Statute section 244.10, subdivision 5, commands that a jury, not the district court, find the existence of aggravating factors.  The legislature did not “add aggravating factors, eliminate elements of aggravating factors, or increase the duration of the sentence authorized by a finding of aggravating factors.”  Hankerson v. State, 723 N.W.2d 232, 242 (Minn. 2006).  As such, Minn. Stat. § 244.10, subd. 5, is arguably a rule of criminal procedure.  Id. at 242–43. 

Nevertheless, “if the legislature passes a statute in an area not already governed by a rule, the court, as a matter of comity, may let it stand.”  Johnson, 514 N.W.2d at 554 n.5.  Comity may warrant ratification of a legislative encroachment upon a judicial function when the statute does not conflict with the inherent judicial function to make a final decision.  Lindsey, 632 N.W.2d at 659 n.2 (declining to extend comity to an unconstitutional statute that potentially could have violated a defendant’s right to a public trial).  “Due respect for the coequal branches of government commands us to exercise great restraint before striking down a statute as unconstitutional.”  State v. McCoy, 682 N.W.2d 153, 160 (Minn. 2004) (recognizing a statutory rule of evidence as a matter of comity) (quotation omitted). 

This court concludes that comity is appropriate in this case.  In State v. Shattuck, the supreme court stated that “[i]n the area of sentencing, both the legislature and the judiciary exercise constitutionally authorized functions. . . .  While this court has the authority to establish procedures to apply the requirements of . . . Blakely to sentencing . . . we leave to the legislature the task of deciding how the Sentencing Guidelines system should be altered to comport with [Blakely].”  704 N.W.2d at 148 (citations omitted).  In State v. Chauvin, the supreme court stated that it is the historical and constitutional function of the judiciary “to safeguard the rights of criminal defendants by providing for a jury trial where the statutory scheme is silent.”  723 N.W.2d at 27.  In Hankerson v. State, the supreme court upheld the constitutionality of section 244.10, subdivision 5(a), holding that it did not violate the double-jeopardy or ex post facto clauses of the United States Constitution.  723 N.W.2d at 236–44. 

In the aggregate, these cases demonstrate that the supreme court invited the legislature to enact a statutory scheme dictating the procedure to be followed and that the adopted procedure may, as a matter of comity, stand.



* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.