This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




State of Minnesota,



Arturo Villa Orozco,


Filed August 11, 1998


Huspeni, Judge

Dakota County District Court

File No. F597447

John M. Stuart, State Public Defender, Dwayne Bryan, Asst. State Public Defender, 2829 University Ave. S.E., Suite 600, Minneapolis, MN 55414 (for appellant)

Hubert H. Humphrey III, Attorney General, 1400 NCL Tower, 445 Minnesota St., St. Paul, MN 55101; James C. Backstrom, Dakota County Attorney, Kevin P. Shea, Asst. County Attorney, Dakota County Judicial Center, 1560 W. Hwy. 55, Hastings, MN 55033 (for respondent)

Considered and decided by Willis, Presiding Judge, Huspeni, Judge, and Schultz, Judge.[*]



Appellant challenges the trial court's use of CRIMJIG 3.03 in charging the jury on proof beyond a reasonable doubt. Because we see no abuse of discretion, we affirm.


On February 23, 1997, Jose Vasquez and Philip Houser were arrested and charged with third-degree possession of a controlled substance. Investigators offered to have the charge reduced if Vasquez and Houser could arrange a larger drug deal.

Four days later, Vasquez telephoned an acquaintance who provided the telephone number and first name of appellant Arturo Orozco. Vasquez telephoned appellant to make a deal. Vasquez and Houser told police they were to drive to Las Americas market in West St. Paul to meet appellant and exchange one kilo of cocaine for $24,000. The local police traced the call to appellant's address and began surveillance of his home.

The officers observed a parked car at appellant's home. When the car left, they followed it to the Las Americas market, where Vasquez and Houser were already waiting in a car in the parking lot. Officers observed appellant, a passenger, get out of the car and enter Vasquez and Houser's vehicle, which then drove away. When the car returned, appellant left it and returned to his own car. Vasquez and Houser then drove to a hotel; appellant followed in his car. After both cars drove into the hotel parking lot, officers confronted the occupants. Under appellant's passenger seat, officers located a package of a suspected controlled substance, later determined to be 984 grams of cocaine hydrochloride.

Appellant was charged with first-degree possession of a controlled substance. The trial court instructed the jury on reasonable doubt in accordance with 10 Minnesota Practice, CRIMJIG 3.03 (1990). The jury found appellant guilty as charged.

Appellant challenges the trial court's use of CRIMJIG 3.03 on proof beyond a reasonable doubt.


Trial courts are allowed considerable latitude in selecting the language in jury instructions. Alholm v. Wilt, 394 N.W.2d 488, 490 (Minn. 1986). An appellate court will not reverse a trial court's decision unless the instructions constituted an abuse of discretion. Id. This court will not reverse simply because a litigant preferred to use other language. Id.

The trial court recited CRIMJIG 3.03, as follows:

Proof beyond a reasonable doubt is such proof as ordinarily prudent men and women would act upon in their most important affairs. A reasonable doubt is a doubt based upon reason and common sense. It does not mean a fanciful or capricious doubt, nor does it mean beyond all possibility of doubt.

(Emphasis added.) Appellant contends the CRIMJIG "would act upon" language is unconstitutional because it does not define reasonable doubt in terms of a hesitation to act. Appellant claims the instruction allows a jury to convict despite a defendant's hesitation to act.

The Minnesota Supreme Court examined this issue in State v. Olkon, 299 N.W.2d 89 (Minn. 1980). In Olkon, the trial court instructed the jury using language identical with that in CRIMJIG 3.03. The defendant argued at trial that CRIMJIG 3.03 was erroneous because it defined reasonable doubt as a willingness to act. The defendant asserted that reasonable doubt should include terms of a willingness to act without hesitation. The supreme court concluded:

The comment to [CRIMJIG 3.03] rejects the use of the term "without hesitation" on the ground that it suggests a recklessness which is antithetical to the rational process to be pursued by a jury.

* * * *

The essential aspect of the matter it appears to us is that the jury clearly understood that there must be proof persuasive beyond a reasonable doubt. Defining the term should be at the option of the trial judge * * *.

Id. at 104-05. The court held that the jury had been adequately instructed on the concept of proof beyond a reasonable doubt.

Appellant attempts to distinguish his proposed instruction from that given in Olkon, arguing that he requested language that required a hesitation to act, while the Olkon defendant requested reasonable doubt language that included a willingness to act without hesitation. This is an interesting attempt to create a distinction, but appellant cannot overcome the long-standing use and acceptance of CRIMJIG 3.03.

Previous challenges to CRIMJIG 3.03 have been unsuccessful. See, e.g., State v. Sap, 408 N.W.2d 638, 641 (Minn. App. 1987) ("[c]ourts are always safe in using the instruction of CRIMJIG 3.03").

Thus, as in Olkon and in accord with Minnesota case law, we find the trial court's use of CRIMJIG 3.03 adequately conveyed the concept of proof beyond a reasonable doubt. Further, changing the terms of CRIMJIG 3.03 is a matter more properly addressed by the Minnesota Supreme Court.

We have reviewed all issues, including the application of the exclusionary rule, ineffective assistance of counsel, improper jury instructions, and the alleged illegal search of appellant's person and home raised by appellant in his pro se brief, and we find them to be without merit.

The trial court did not abuse its discretion in charging the jury on proof beyond a reasonable doubt in accordance with CRIMJIG 3.03.


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