This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-597

 

State of Minnesota,
Respondent,

vs.

Cecilio Limon Reyes,
Appellant.

 

Filed April 26, 2005

Reversed and remanded

Minge, Judge

 

Clay County District Court

File No. K7-03-755

 

 

Mike Hatch, Attorney General, James B. Early, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

Lisa Borgen, Clay County Attorney, Clay County Courthouse, 807 North 11thStreet, P.O. Box 280, Moorhead, MN 56561 (for respondent)

 

John M. Stuart, State Public Defender, Michael F. Cromett, Assistant Public Defender, 2221 University Avenue S.E., Suite 425, Minneapolis, MN 55414 (for appellant)

 

            Considered and decided by Minge, Presiding Judge; Wright, Judge; and Huspeni, Judge.*

 

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

 

MINGE, Judge

 

            Appellant challenges his conviction of selling controlled substances in the third degree, arguing that the jury instructions were improper and that the evidence was insufficient to support the jury verdict.  Because the district court plainly erred by failing to include an instruction stating the presumption of innocence and defining proof beyond a reasonable doubt in its final instructions to the jury, we reverse.  Because there was sufficient evidence to permit a jury to return a guilty verdict on each charge, we remand.

FACTS

 

Appellant Cecilio Limon Reyes was charged and convicted following a jury trial of two counts of third-degree sale of controlled substances in violation of Minn. Stat. § 152.023, subd. 1(1) (2002).  These charges arose out of two purchases of controlled substances made by a paid confidential informant. 

            At the beginning of appellant’s trial, the district court orally read to the jury preliminary instructions that included a description of appellant’s presumption of innocence and a definition of proof beyond a reasonable doubt.  However, at the conclusion of the trial, the final instructions the district court read to the jury contained no statement concerning appellant’s presumption of innocence.  In addition, the district court did not restate the definition of proof beyond a reasonable doubt in the final instructions, nor did it explicitly instruct that in order to find the defendant guilty, each element of the offense must be proved beyond a reasonable doubt.  Instead, the court stated only that appellant’s not guilty plea “constitutes a denial by the Defendant of every material allegation in the complaint.  And places upon the State of Minnesota the obligation of proving the [appellant’s] guilt beyond a reasonable doubt.”  Neither the state nor appellant objected to the final instructions.  Appellant was convicted on both counts of third-degree sale of controlled substances and was sentenced to concurrent prison terms of 39 and 51 months.  Appellant challenges his conviction.

D E C I S I O N

 

I.

 

            The first issue is whether appellant’s conviction should be reversed because the district court failed to instruct the jury on the presumption of innocence and proof beyond a reasonable doubt in its final instructions.  Normally, a defendant’s failure to request or object to instructions before they are given to a jury constitutes a waiver of the right to appeal.  State v. Cross, 577 N.W.2d 721, 726 (Minn. 1998).  However, a failure to object does not waive the defendant’s right to appeal if the instructions contain plain error affecting substantial rights or an error of fundamental law.  State v. Malaski, 330 N.W.2d 447, 451 (Minn. 1983).  We use a three-prong test to determine the existence of plain error: (1) there must be an error; (2) the error must be plain; and (3) the error must affect substantial rights.  State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998) (citing Johnson v. United States, 520 U.S. 461, 467, 117 S. Ct. 1544, 1549 (1997)). 

            The Minnesota Supreme Court recently addressed this issue in State v. Peterson, 673 N.W.2d 482, 486 (Minn. 2004).[1]  In Peterson, the district court provided an instruction on the presumption of innocence and proof beyond a reasonable doubt at the beginning of the trial, and failed to give complete instructions in its final charge to the jury.  Id. at 485.  Instead, the district court told the jury that “to find him guilty you have to be convinced beyond a reasonable doubt, otherwise, he’s not guilty.”  Id.  The Peterson court reversed the conviction, holding that it is not sufficient for the district court to instruct the jury only at the beginning of trial on the presumption of innocence and the need for proof beyond a reasonable doubt.  Id. at 486.  The supreme court stated that in its “final charge to the jury,” the court must “clearly instruct the jurors on exactly what it is that they must decide.”  Id. at 485.  These instructions must be given orally.  Id.  Thus the supreme court held that the district court’s plain error required automatic reversal and was not subject to a harmless-error analysis.  Id. at 487.

            This case is analogous to Peterson.  Here, as in Peterson,the district court gave thorough preliminary instructions to the jury explaining the presumption of innocence and proof beyond a reasonable doubt, but failed to repeat the presumption of innocence and the definition of proof beyond a reasonable doubt in its final instructions to the jury.  Respondent attempts to distinguish Peterson.  However, the rule in Peterson is clear that the instructions on the presumption of innocence and the definition of proof beyond a reasonable doubt must be included in the final charge to the jury and that failure to do so constitutes plain reversible error.  See Peterson, 673 N.W.2d at 486-87.  Peterson is controlling and because of these errors in the final instructions, appellant is entitled to a new trial.

II.

The next issue is whether with proper instructions the evidence could be sufficient to support a jury’s guilty verdict on the two counts of third-degree sale of a controlled substance.  This issue is presented because the state represents that it intends to prosecute appellant in the event we reverse based on the jury instruction problem.  We recognize that if we find that the evidence is insufficient, such a retrial would be barred by double jeopardy.  See Burks v. United States, 437 U.S. 1, 1898 S. Ct. 2141, 2150-51 (1978).  When considering a sufficiency of the evidence claim, 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, was sufficient to permit the jurors to reach the verdict which they did.”  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  This court must ascertain “whether a jury could reasonably find the defendant guilty, given the facts in evidence and the legitimate inferences which could be drawn from those facts.”  State v. Robinson, 604 N.W.2d 355, 365-66 (Minn. 2000).  The reviewing court views the evidence in the light most favorable to a possible verdict of guilty and assumes that the jury would believe the state’s witnesses and disbelieve any evidence to the contrary.  State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).  Weighing the credibility of witnesses is the jury’s exclusive function.  State v. Pippitt, 645 N.W.2d 87, 94 (Minn. 2002).

To convict appellant of a third-degree controlled-substance crime the state would have to prove beyond a reasonable doubt that he “unlawfully [sold] one or more mixtures containing a narcotic drug.”  Minn. Stat. § 152.023, subd. 1(1) (2002).  The record in this case includes direct testimony and cross-examination of the informant, the detective, and the translator who transcribed the conversation between appellant and the informant.  During cross-examination appellant’s attorney elicited testimony that the informant had been convicted of a drug crime and criminal sexual conduct.  There was testimony that the informant began working for law enforcement in 2000, and earned between $100 and $200 for each undercover buy he made. 

Appellant argues that the informant’s testimony requires eyewitness corroboration because the informant is paid, has past felony convictions, and has used drugs in the past.  In Minnesota, only accomplice testimony must to be corroborated.  See Minn. Stat. § 634.04 (2004).  Minnesota has not adopted a corroboration requirement for testimony from habitual narcotics users or paid informants either legislatively or judicially. 

We recognize that in this case there are indicia that the informant was not trustworthy.  Although this may make it more difficult to find the defendant guilty, we also recognize that there is corroborating evidence that would support a guilty verdict.  The detective corroborated much of the informant’s testimony regarding the events that were part of the controlled buys.  The detective testified and was cross-examined regarding his surveillance of the informant as the informant arrived at and left appellant’s residence during both buys.  Also, the detective thoroughly searched the informant before and after the buys and was certain that he would have discovered even a minute amount of narcotics in the informant’s possession.  The conversations between appellant and the informant were monitored, and although the conversation concerning the informant’s first controlled buy was not tape-recorded, the detective testified that he recognized appellant’s name being uttered during the conversation.

The conversation between appellant and the informant during the second controlled buy was tape-recorded, translated, and transcribed.  In reaching its verdict, a jury could rely on this conversation, which provides corroborating circumstantial evidence supporting the informant’s testimony and the elements of the crime.  Also, the transcript includes a discussion of what type of controlled substance is in the pills.  Furthermore, the translator independently identified appellant as the other party in the conversation with the informant.  Although the informant had $70 in cash in his possession after the buy, he provided a credible explanation that appellant owed him this money for a car he had purchased.  Recognizing the jury’s exclusive function to weigh credibility of witnesses, the evidence is sufficient to permit a jury to reach a guilty verdict.  See Pippitt, 645 N.W.2d at 94.  Therefore, we remand for a new trial.

            Reversed and remanded.