This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. ' 480A.08, subd. 3 (1994).

STATE OF MINNESOTA
IN COURT OF APPEALS
C7-95-1828

State of Minnesota,
Respondent,

vs.

Michael Lawrence Burcham,
Appellant.

Filed July 9, 1996
Affirmed
Parker, Judge

Otter Tail County District Court
File No. K2-94-1157

Hubert H. Humphrey III, Attorney General, David B. Orbuch, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent)

Waldemar Senyk, Otter Tail County Attorney, Otter Tail County Courthouse, 121 Junius Avenue, Fergus Falls, MN 56537 (for respondent)

John M. Stuart, State Public Defender, Bradford S. Delapena, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)

Considered and decided by Kalitowski, Presiding Judge, Parker, Judge, and Randall, Judge.

U N P U B L I S H E D O P I N I O N

PARKER, Judge

Appellant Michael Lawrence Burcham was convicted of fraudulently obtaining workers' compensation benefits in violation of Minn. Stat. '' 176.178 and 609.52, subd. 3(3) (1994). Burcham appeals, arguing that the trial court abused discretion by failing to instruct the jury on an essential element of the offense charged and by admitting irrelevant character evidence that unfairly prejudiced the jury. We affirm.

D E C I S I O N

"Trial courts are allowed `considerable latitude'" in selecting the language of jury instructions. Alholm v. Wilt, 394 N.W.2d 488, 490 (Minn. 1986) (citations omitted). An appellate court will not reverse a trial court's decision unless the instructions constituted an abuse of discretion. See id. When instructions fairly and correctly state the applicable law, an appellate court will not grant a new trial. Alevizos v. Metropolitan Airports Comm'n, 452 N.W.2d 492, 501 (Minn. App. 1990), review denied (Minn. May 11, 1990). The question of whether to admit or exclude evidence rests within the broad discretion of the trial court and its ruling will not be disturbed unless it is based on an erroneous view of the law. Caldwell v. State, 374 N.W.2d 824, 826 (Minn. App. 1984).

1. Jury Instructions

Burcham argues that the trial court abused discretion by failing to instruct the jury on all the essential elements of the offense charged. He contends the trial court failed to inform the jury that fraud, as defined by Minn. Stat. ' 176.178 (1994), requires the state to prove beyond a reasonable doubt that he knowingly failed to disclose a material fact. Burcham claims that the trial court's instruction, "he failed to disclose a material fact," is inadequate because it omits the "knowingly" requirement, which is an essential element of a fraud offense. Although he failed to object to the jury instruction at trial, Burcham also argues that this issue is properly before this court. He contends the trial court's jury instruction constituted a plain error that affected his substantial rights and therefore is reviewable by this court.

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. * * * An error in the instructions with respect to fundamental law or controlling principle may be assigned in a motion for a new trial though it was not otherwise called to the attention of the court.

Minn. R. Crim. P. 26.03, subd. 18(3).

"[I]f the instructions do not mislead the jury or allow it to speculate over the meaning of the elements," detailed definitions of the elements of the crime need not be given. Peterson v. State, 282 N.W.2d 878, 881 (Minn. 1979). A failure to instruct the jury on all the elements of the offense is not necessarily prejudicial. Rosillo v. State, 278 N.W.2d 747, 749 (1979).

If defendant's counsel has failed to object at trial, this court may consider the claim on appeal "if the error was `plain error affecting substantial rights' or if the claim relates to error in `fundamental law' in the jury instructions." State v. Malaski, 330 N.W.2d 447, 451 (Minn. 1983) (citation omitted).

On review of the record, we do not believe that the trial court's jury instructions were inadequate or constituted a fundamental error of law. In his charge to the jury, the trial judge stated:

The statutes of Minnesota provide that whoever, with intent to defraud, received workers compensation benefits to which that person is not entitled by knowingly misrepresenting, misstating or failing to disclose any material fact is guilty of this offense.

Now the elements of wrongfully obtaining workers compensation benefits are, first of all, that Michael Lawrence Burcham received workers compensation benefits; secondly, that he was not entitled to such benefits at all or in a--or in the amount that he received; third, that he failed to disclose a material fact and fourth, that he acted with intent to defraud.

An intent to defraud is an intent to deceive another for purposes of persuading the person to part with property or to gain some material advantage over the other. If Mr. Burcham intended to defraud somebody, it is not necessary that he had a particular person in mind.

The phrase with intent to means that the actor either had a purpose to do the thing or cause the result specified or believes the act, if successful, will cause that result[].

And then of course, the last element of this offense is that Michael Lawrence Burcham's acts took place in October of 1992 in Otter Tail County, Minnesota.

(Emphasis added.) At the conclusion of the jury instructions, the trial judge asked if either counsel wished "to call the Court's attention to any errors, omissions or corrections in any of the instruction[s] given." Both attorneys responded in the negative.

We note that the trial court's jury instruction was properly adapted from the Minnesota Criminal Jury Instruction Guide, 24.15 and 24.16. The instruction was not misread, nor did it misstate the law. Burcham made no motion for a new trial and did not ask the trial court for a curative instruction. Absent evidence to show a fundamental error of law, we have no reason to believe that the jury was misled by the instructions given. We conclude, therefore, that the trial court gave the jury appropriate instructions on the offense charged and that there was no error of fundamental law or controlling principle.

2. Admission of character evidence

Burcham argues that the trial court abused discretion by admitting evidence that disparaged his character and unfairly prejudiced the jury. He contends the following evidentiary references were irrelevant and prejudicial: (1) testimony that Burcham's job application to West Central Turkey failed to list Offutt as a former employer; (2) testimony that Burcham failed to disclose his knee injury or surgery in response to the West Central medical questionnaire; (3) testimony that Burcham sustained a work-related injury at West Central; and (4) evidence that Burcham was concealing injuries received at the turkey plant from the doctor he was seeing for the Offutt knee injury. Burcham argues that the probative value of the evidence was substantially outweighed by its prejudicial effect, thereby constituting an abuse of discretion by the trial court.

Whether to admit evidence of other crimes, acts, or wrongs lies within the trial court's sound discretion. State v. Slowinski, 450 N.W.2d 107, 113 (Minn. 1990). The defendant bears the burden of showing that the trial court erred by admitting the evidence. State v. Berry, 484 N.W.2d 14, 17 (Minn. 1992). Evidence of other acts or wrongs is not admissible to prove a person's character. Minn. R. Evid. 404(b). It is admissible, though, if relevant, to show the relationship between the defendant and the victim. State v. Thieman, 439 N.W.2d 1, 6 (Minn. 1989) (prior threat admissible to show strained relationship). Evidence is relevant if it is offered to prove or disprove a material fact. Minn. R. Evid. 401, comm. cmt. "[A] jury normally is in the best position to evaluate circumstantial evidence, and * * * their verdict is entitled to due deference." State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).

On review of the record, we believe that the evidence complained of was relevant and properly admitted to show Burcham's intent to defraud Offutt. Evidence of Burcham's omissions on the West Central job application and medical questionnaire bear directly on proving his culpability in the commission of this crime. Furthermore, evidence that Burcham concealed injuries received at West Central from the treating physician for Offutt also provides relevant circumstantial evidence as to Burcham's deliberate intent to hide his new employment status. Burcham has not shown that the trial court erred in deciding that the evidence was relevant and more probative than prejudicial. We conclude, therefore, that the trial court's ruling allowing evidence of Burcham's conduct toward representatives for Offutt and his actions in obtaining employment with West Central Turkey did not constitute an abuse of discretion.

Affirmed.