This opinion will be unpublished and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

A04-610

 

State of Minnesota,

Respondent,

 

vs.

 

John Eric Johnson,

Appellant.

 

Filed May 3, 2005

Affirmed

Gordon W. Shumaker, Judge

 

Pope County District Court

File No. K02-02-285

 

 

Mike Hatch, Attorney General, Thomas R. Ragatz, Carmen Netten, Assistant Attorneys General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

Belvin Doebbert, Pope County Attorney, Pope County Courthouse, 130 East Minnesota Avenue, Glenwood, MN 56334 (for respondent)

 

John M. Stuart, State Public Defender, Bridget Kearns Sabo, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)

           

Considered and decided by Toussaint, Chief Judge; Shumaker, Judge; and Dietzen, Judge.

 

U N P U B L I S H E D   O P I N I O N

GORDON W. SHUMAKER, Judge

 

            Appellant John Eric Johnson argues that the evidence was insufficient as a matter of law to prove beyond a reasonable doubt that he formed a conspiratorial agreement to manufacture methamphetamine with another person.  Appellant also contends that although the district court instructed the jury that its verdict must be unanimous, the district court committed plain error in failing to instruct the jury that it must unanimously decide which overt act was committed in furtherance of the conspiracy.  Because the record shows that the district court did not err, we affirm.

FACTS

 

            On February 6, 2002, Deputy Chris Johnson spoke to appellant’s friend Nathaniel Smith at a property located at 13709 County Road 25 in Pope County.  The property is owned by Elton Davis, Smith’s uncle, and has on it a blue cabin and a pink cabin.  After Deputy Johnson asked Smith about the pink cabin, Smith became “very nervous and fidgety” and “acted very edgy.”  Smith claimed the pink cabin was only used for storage.  Deputy Johnson noticed, however, that an orange electrical cord connected the two cabins and a propane tank provided heat to the pink cabin.  As Deputy Johnson approached the pink cabin, he detected a strong chemical smell consistent with methamphetamine manufacture.

            The next day, law-enforcement officials searched the Davis cabins.  In the pink cabin, law-enforcement officials recovered numerous items used in the production of methamphetamine, including glass jars, funnels, hoses, hot plates, blenders, acetone,  salt, coffee filters, matchbooks, hydrogen peroxide, bore-scrubber solvent, Red Devil lye, and a turkey baster.  Police also found syringes, a small scale, and garbage bags containing discolored coffee filters and pseudoephedrine blister packs.  A liquid sample collected from the pink cabin later tested positive for methamphetamine. 

            During their search of the pink cabin, police recovered a cellular phone registered to appellant.  Deputy Johnson found Smith’s and Robert Wong’s names in the cell phone memory and ultimately interviewed several individuals, including appellant.

            Police interviewed appellant twice while he was in custody in Morrison County on charges of methamphetamine manufacturing and once after he was arrested on the Pope County charges.  Appellant admitted that Wong taught him how to cook methamphetamine using the red phosphorus method.  Appellant admitted he had been up to the Davis cabins at different times through November or December 2001.  Appellant also admitted that he was aware that some people were manufacturing methamphetamine at the Davis cabins, but stated that he never participated.  Appellant did not deny being in the pink cabin’s attic when Deputy Johnson was present on February 6, 2002. 

Appellant was charged with one count of conspiracy to commit a first-degree controlled-substance crime in violation of Minn. Stat. § 152.096, subd. 1 (2002), and Minn. Stat. § 152.021, subd. 2(a)(1) (2002), and one count of second-degree burglary in violation of Minn. Stat. § 609.582, subd. 2 (2002).  At trial, appellant’s alleged co-conspirator, Robert Wong, testified for the prosecution in exchange for a reduction in his sentence.  Wong testified that appellant was manufacturing methamphetamine in the pink cabin upon Deputy Johnson’s arrival at the Davis property on February 6, 2002.  Wong further testified that appellant stashed his manufacturing materials in the cupboards and hid in the attic until Deputy Johnson left.  Wong admitted to being a long-term methamphetamine user and manufacturer.

Wong further testified that he taught appellant how to cook methamphetamine using the red phosphorus method.  After receiving Wong’s manufacturing instructions, Wong stated that appellant informed him that he was cooking methamphetamine at a cabin in Pope County.  Wong testified that “[w]hen [appellant] first started out, we kind of had some kind of agreement that, you know, if he was to get going or whatever that he would give me some of his dope.”  Wong testified that he supplied appellant on a monthly basis with red phosphorus and other methamphetamine ingredients.  During that time, Wong also testified that he also supplied appellant with methamphetamine “cooking” instructions and advice.  Wong testified that the materials found during the search of the pink cabin were consistent with materials employed in the red phosphorus manufacturing method.

Bureau of Criminal Apprehension (BCA) Special Agent Johnston also testified that the methamphetamine-related materials found in the pink cabin indicated the red phosphorus and iodine method was utilized in the “lab.”  Special Agent Johnston surmised the pink cabin was cleaned hastily, based upon the residues in the sink and chemical spills on the ground.  Smith’s uncle testified that the pink cabin contained an attic.

The district court included 10 Minnesota Practice, CRIMJIG 5.07 (1999), in its instructions to the jury.  That instruction stated:

            The statutes of Minnesota provide that whoever conspires with another to commit a crime is guilty of conspiracy if one or more of the parties to the conspiracy does some overt act in the furtherance of the conspiracy.

 

            The elements of a conspiracy to commit a controlled substance crime in the first-degree are: first, the defendant conspired with another to commit a controlled substance crime in the first-degree.  A person conspires with another when he agrees with the other to commit a crime.  The statutes of Minnesota define the crime of controlled substance crime in the first-degree as follows: whoever unlawfully manufactures any amount of methamphetamine is guilty of a crime.  To manufacture means and includes the production, cultivation, quality control, and standardization of drugs by mechanical, physical, chemical, or pharmaceutical means, their packing, repacking, tableting, encapsulating, labeling, relabeling, filling, or other processing.  Second, the defendant or another party to the conspiracy did one of the overt acts alleged, and did so with the purpose of furthering the conspiracy.  The overt acts alleged in this case are the assisting in and/or manufacture of methamphetamine . . . .

 

Third, the defendant entered the agreement, or an overt act took place between August 2001 and February 6, 2002 in Pope County.

 

Johnson was convicted of conspiracy to manufacture methamphetamine and sentenced to 134 months in prison.  Johnson appealed.   

D E C I S I O N

 

1.         Sufficiency of the evidence

Appellant argues that the evidence was insufficient as a matter of law to prove beyond a reasonable doubt that appellant formed a conspiratorial agreement to manufacture methamphetamine with another person.  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 the 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 (Minn. 1989).  The reviewing court must assume that the jury believed the state’s witnesses and disbelieved any evidence to the contrary.  State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).  The reviewing court will not disturb the verdict if the jury, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude the defendant was guilty of the charged offense.  State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).

            To prove conspiracy to commit a controlled-substance crime, the state must show “(1) an agreement between two or more people to commit a controlled-substance crime and (2) an overt act in furtherance of the conspiracy.”  State v. Pinkerton, 628 N.W.2d 159, 162-63 (Minn. App. 2001), review denied (Minn. July 24, 2001).  Direct evidence is not required if the conspiracy can be inferred from the circumstances.  State v. Watson, 433 N.W.2d 110, 114-15 (Minn. App. 1988), review denied (Minn. Feb. 10, 1989).  Thus, the state need not prove the existence of a formal agreement so long as the evidence objectively shows that the parties agreed to commit the crime.  State v. Hatfield, 639 N.W.2d 372, 376 (Minn. 2002).  But when the state relies entirely on circumstantial evidence, guilt is negated by a showing that the evidence and the reasonable inferences to be drawn from it are consistent with a rational hypothesis other than guilt.  Id.  The state must corroborate an accomplice’s testimony regarding a conspiracy so as to link or connect the defendant to the crime.  Minn. Stat. § 634.04 (2002); see State v. Ford, 539 N.W.2d 214, 225 (Minn. 1995) (stating accomplice testimony can be corroborated by other evidence that shows joint participation).

            Here, when viewing the evidence in a light most favorable to the conviction, the evidence sufficiently supports the jury’s finding that appellant formed a conspiratorial agreement with Smith to manufacture methamphetamine.  Deputy Johnson testified that he spoke to Smith at the Davis cabins on February 6, 2002.  Deputy Johnson stated that at first Smith appeared cooperative but after he asked Smith about the pink cabin, Smith became “very nervous and fidgety” and “acted very edgy.”  Deputy Johnson testified that Smith claimed the pink cabin was only used for storage.  Deputy Johnson noticed, however, that an orange electrical cord connected the two cabins and a propane tank provided heat to the pink cabin.  The next day, Pope County authorities discovered the methamphetamine lab in a cabin owned by Smith’s uncle.  While Smith’s mere presence at the Davis cabin cannot alone substantiate guilt, see Pinkerton, 628 N.W.2d at 164, the evidence reasonably supports an inference that Smith knowingly and intentionally provided access to a remote cabin for appellant’s methamphetamine manufacturing.  See Hatfield, 639 N.W.2d at 376.

The evidence also sufficiently supports the jury’s finding that appellant formed a conspiratorial agreement with Wong to manufacture methamphetamine.  Wong testified that he taught appellant how to cook methamphetamine using the red phosphorus method.  After providing this instruction, Wong testified that appellant informed him that he was cooking methamphetamine at the Davis cabin in Pope County.  Wong testified that “[w]hen [appellant] first started out, we kind of had some kind of agreement that, you know, if he was to get going or whatever that he would give me some of his dope.”  Wong stated that he supplied appellant with methamphetamine “cooking” instructions, advice, and hard-to-find methamphetamine ingredients, including red phosphorus.  Upon Deputy Johnson’s arrival on the Davis property on February 6, 2002, Wong testified that appellant was manufacturing methamphetamine in the pink cabin.  Wong further testified that appellant stashed his manufacturing materials in the cupboards and hid in the attic until Deputy Johnson left.  Wong testified that the materials found during the search of the pink cabin were consistent with materials utilized using the red phosphorus manufacturing method.

Although the state’s case relies in part on accomplice testimony, Wong’s testimony is corroborated by several pieces of evidence.  Deputy Johnson testified that as he approached the pink cabin on February 6, 2002, he detected a strong chemical smell consistent with methamphetamine manufacture.  Law-enforcement officials recovered methamphetamine and large amounts of methamphetamine-related materials from the pink cabin.  Appellant did not deny being in the pink cabin’s attic when Deputy Johnson was present on February 6, 2002.  Appellant also admitted that Wong taught him how to cook methamphetamine using the red phosphorus method.  BCA Special Agent Johnston testified that the methamphetamine-related materials found in the pink cabin indicated the red phosphorus and iodine method was utilized in the lab.  Special Agent Johnston surmised the pink cabin was cleaned hastily based upon the residues in the sink and chemical spills on the ground.  Elton Davis described the pink cabin’s attic that appellant used to hide from the law-enforcement officer on February 6, 2002. 

Appellant argues that, at most, the evidence proved Smith or Wong or both aided and abetted appellant’s alleged efforts to make methamphetamine.  Appellant’s argument, however, has no weight.  The evidence reasonably suggests that Smith knowingly and intentionally provided access to a remote cabin for appellant’s methamphetamine manufacturing.  Furthermore, Wong testified at trial that “[w]hen [appellant] first started out, we kind of had some kind of agreement that, you know, if he was to get going or whatever that he would give me some of his dope.”  Thus, from the beginning of the conspiracy, Wong maintained a stake in appellant’s methamphetamine-manufacturing venture.  Wong also provided appellant with instruction, advice, and supplies needed for manufacturing methamphetamine.  This evidence objectively indicates an agreement between appellant and Wong to manufacture methamphetamine.  See Hatfield, 639 N.W.2d at 376 (citing State v. St. Christopher, 305 Minn. 226, 230-35, 232 N.W.2d 798, 801-03 (1975)).  In sum, when viewed in a light most favorable to the conviction, the evidence sufficiently supports the jury’s finding that appellant formed a conspiratorial agreement to manufacture methamphetamine with Wong and Smith.

2.         Appellant’s right to a unanimous verdict

The district court instructed the jury that the overt acts alleged by the state were “assisting in and/or the manufacture of” methamphetamine.  Appellant argues that although the district court instructed the jury that its verdict must be unanimous, the district court committed plain error in failing to instruct the jury that it must unanimously decide which overt act was committed in furtherance of the conspiracy.

            District courts are allowed “considerable latitude” in the selection of language for jury instructions, State v. Baird, 654 N.W.2d 105, 113 (Minn. 2002), and will not be reversed absent a clear abuse of discretion.  State v. Stempf, 627 N.W.2d 352, 354 (Minn. App. 2001).  Because appellant failed to object to the instructions at trial, this court’s review is under the plain-error standard.  See Minn. R. Crim. P. 31.02; State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998).  “The plain error standard requires that the defendant show: (1) error; (2) that was plain; and (3) that affected substantial rights.”  State v. Strommen, 648 N.W.2d 681, 686 (Minn. 2002) (citing Griller, 583 N.W.2d at 740).  If those three prongs are met, we may correct the error only if it seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.”  Id. (citing State v. Crowsbreast, 629 N.W.2d 433, 437 (Minn. 2001) (quotation omitted)).

“Where jury instructions allow for possible significant disagreement among jurors as to what acts the defendant committed, the instructions violate the defendant’s right to a unanimous verdict.”  Stempf, 627 N.W.2d at 354.  Specifically, there must be unanimous agreement “on which acts the defendant committed if each act itself constitutes an element of the crime.”  Id. at 355 (citing Richardson v. United States, 526 U.S. 813, 824, 119 S. Ct. 1707, 1713 (1999)).  In Stempf, this court reversed a conviction of possession of a controlled substance because the jurors were presented with evidence that the defendant possessed methamphetamine in two locations—in a truck and at his workplace—and the state argued that the jury did not have to be unanimous in finding beyond a reasonable doubt that the defendant possessed a controlled substance in a single location.  Id.at 359.  The court reasoned that the jury instructions allowed the jury to convict even if some jurors believed there was possession in the truck and others found that defendant possessed drugs at work.  Id.

While unanimity is required with respect to an element of a crime, it is not required with regard to the alternative ways a crime could be committed.  When “certain statutory alternatives are mere means of committing a single offense, rather than independent elements of the crime,” the jury need not be unanimous as to the means used to commit the crime so long as it is unanimous in finding that the crime’s elements are met.  Id. at 355 (quoting Schad v. Arizona, 501 U.S. 624, 636, 111 S. Ct. 2491, 2499 (1991)).  Thus, in State v. Hart, this court affirmed a conviction of first-degree criminal sexual conduct when jurors were allowed to convict the defendant if they found either that he caused the victim personal injury or placed her in fear of harm.  477 N.W.2d 732, 737-39 (Minn. App. 1991), review denied (Minn. Jan. 16, 1992).  Because the statute explicitly allowed for either circumstances as alternative means of committing first-degree criminal sexual conduct, the defendant’s right to a unanimous verdict was not violated.  Id.

Here, the district court did not commit plain error in instructing the jury that the overt acts alleged by the state were “assisting in and/or the manufacture of” methamphetamine. Appellant was convicted of conspiracy to commit a violation of Minn. Stat. § 152.021 (2002), which provides that a person is guilty of first-degree controlled substance crime if the person “manufactures any amount of methamphetamine.”  Id., subd. 2a.  “Manufacture” is defined to include “the production, cultivation, quality control, and standardization by mechanical, physical, chemical, or pharmaceutical means, packing, repacking, tableting, encapsulating, labeling, relabeling, filling, or by other process, of drugs.”  Minn. Stat. § 152.01, subd. 7 (2002).  In light of the legislature’s intent to draft the definition of “manufacture” broadly, this court cannot reasonably view “assisting in and/or the manufacture of methamphetamine” as two distinct overt acts.  Contrary to appellant’s claim, the district court’s instruction of “assisting in and/or the manufacture of methamphetamine” only encompasses one overt act.  Although “either/or jury instructions should be avoided,” Hart, 477 N.W.2d at 739, the district court did not err in crafting its overt-act instruction.

            Even if the district court erred, the district court did not commit plain error.  Plain error exists when the court contravenes clear and established law.  State v. Crowsbreast, 629 N.W.2d 433, 438 (Minn. 2001).  The district court followed the recommended jury instruction in 10 Minnesota Practice, CRIMJIG 5.07 (1999).  See State v. Sutherlin, 396 N.W.2d 238, 241 (Minn. 1986) (holding the district court did not commit plain error when it followed the recommended instruction without objection).

            Furthermore, even if the district court erred, it is unlikely the error affected appellant’s substantial rights.  An error affects substantial rights if it is prejudicial and influences the outcome of the case.  Griller, 583 N.W.2d at 741.  A defendant must show that there is a reasonable likelihood that a proper instruction would have significantly affected the jury’s verdict.  Id.  As such, the defendant bears a “heavy” burden of persuasion.  Id.  Here, appellant’s co-conspirator Wong testified to both of the acts offered by the state as proof of an overt act.  That evidence was further substantiated by appellant’s own admissions and the physical evidence found by law-enforcement officials at the pink cabin.  Even if the jury had a clearer instruction, there is no reasonable likelihood that a different instruction would have significantly affected the jury’s verdict, given the strong evidence as to both of the alleged overt acts.  As a result, the district court’s jury instruction failed to constitute reversible error.

            Affirmed.