This opinion will be unpublished and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

A05-135

 

 

State of Minnesota,

Respondent,

 

vs.

 

Kriss Edward Jensen,

Appellant.

 

 

Filed February 21, 2006

Affirmed
Crippen, Judge*

 

Redwood County District Court

File No. K8-04-256

 

 

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

 

Michelle Dietrich, Redwood County Attorney, Redwood County Courthouse, P.O. Box 130, Redwood Falls, MN 56283  (for respondent)

 

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

 

            Considered and decided by Toussaint, Chief Judge, Wright, Judge, and Crippen, Judge.

U N P U B L I S H E D   O P I N I O N

CRIPPEN, Judge

            Appellant Kriss Jensenchallenges his conviction for a first-degree controlled substance crime, arguing that the district court committed fundamental error when instructing the jury and adjudicating a conviction on a conspiracy offense that was not charged in the complaint.  Because the record does not sustain the occurrence of error and there is no merit in appellant’s other contentions, challenging a conspiracy instruction and an evidentiary ruling, we affirm.

FACTS

            In May 2004, the state charged appellant in a complaint referencing Minn. Stat. § 152.021, subd. 2a (2002) (prohibiting manufacture of any amount of methamphetamine, but making no mention of conspiracy to manufacture), but then stating a charge of “CONSPIRACY TO COMMIT CONTROLLED SUBSTANCE CRIME IN THE FIRST DEGREE.”  Section 152.021 makes no mention of conspiracy to manufacture.  The complaint also states that appellant “did conspire with another to manufacture any amount of methamphetamine and, in furtherance of the conspiracy, committed some overt act in furtherance of the conspiracy.” 

            Evidence at trial showed that in late April 2004, Redwood County Deputy Sheriff Rick Wakefield learned from one Charles Kietzer that Kietzer and appellant had been manufacturing methamphetamine at Kietzer’s home by means of a mobile methamphetamine manufacturing lab that appellant brought to Kietzer’s home in a toolbox that Kietzer described.  On May 4, 2004, having learned from Kietzer that manufacturing was to occur at that time, Wakefield and other officers waited at Kietzer’s home.  When appellant arrived at Kietzer’s residence, he was carrying a toolbox consistent with the one Kietzer had described to the officers.  By means of a microphone planted on Kietzer’s person, the officers overheard appellant and Kietzer discussing the manufacture of methamphetamine.

When appellant entered the residence, the officers arrested him, and he informed them that he had a loaded gun in his vehicle.  When the police obtained and executed warrants to search appellant’s toolbox and vehicle, they discovered precursors to the manufacture of methamphetamine as well as the gun and ammunition. 

            From the state’s opening argument to the jury instructions given by the district court, the record consistently portrays the state’s case against appellant as one of conspiring with another person to manufacture methamphetamine and not one of manufacturing methamphetamine.  In defending against the charges, appellant repeatedly and consistently attempted to show either that Kietzer acted alone in manufacturing the methamphetamine or that appellant had no knowledge that Kietzer was involved in this activity.  The district court provided to the jury the statutory definitions and elements set forth in the conspiracy statute and described the overt acts alleged to have been done with the purpose of furthering the conspiracy.  Following deliberations, the jury found appellant “guilty of the charge of conspiracy to manufacture methamphetamine, first degree controlled substance crime, in violation of Minn. Stat. § 152.021, subd. 2a, with reference to subd. 3(a); Minn. Stat. § 609.175, subd. 2(3).”  The court sentenced appellant to 86 months in prison, the presumptive sentence. 

D E C I S I O N

1.

 

            Minn. Stat. § 152.021, subd. 2a (2002), cited in the complaint, addresses manufacture but does not use the word “conspiracy.”  A conspiracy charge is otherwise stated in the complaint and specifically with reference to appellant’s charged actions. 

            The parties offer contradictory views as to whether appellant waived his right to challenge the complaint on appeal because he failed to state this objection before the district court.  Although there is merit in appellant’s assertion that he is entitled to review of the issue under a standard of reversible error, the record fails to show that error occurred.

            The complaint must be interpreted so as to uphold its validity whenever this is reasonably possible.  State v. Pratt, 277 Minn. 363, 365, 152 N.W.2d 510, 512-13 (1967).  The statement of the offense normally is sufficient “if [it] spells out all essential elements in a manner which has substantially the same meaning as the statutory definition.”  Id.  The language of the complaint in this case unequivocally states that the charged crime is conspiracy to manufacture methamphetamine and not simple manufacture.

            In addition, where a conviction is at variance with the indictment, we must uphold the conviction unless the variance “deprived the defendant ‘of a substantial right, namely, the opportunity to prepare a defense to the charge against him.’”  State v. Gisege, 561 N.W.2d 152, 159 (Minn. 1997) (quoting State v. Dickson, 309 Minn. 463, 467, 244 N.W.2d 738, 741 (1976)).  The record gives no indication of such a deprivation.  Appellant was aware of the conspiracy charge from the time he was charged and defended himself vigorously against the charge throughout the trial.

2.

            Appellant also argues that he is entitled to a new trial because language in the district court’s jury instructions permitted the jury to convict him based on an overt act committed by Kietzer, the confidential informant, rather than appellant.  Because appellant did not object to the instructions at trial, he has waived any challenge to them unless the instructions were so misleading as to constitute plain error.  State v. Baird, 654 N.W.2d 105, 109 (Minn. 2002); see also Minn. R. Crim. P. 26.03, subd. 18(3) (requiring assignment of error regarding jury instructions to be made before the jury retires). 

            Using the language of CRIMJIG 5.12, the district court instructed the jury that “the overt act . . . must be the act of a person who does intend the crime . . . be committed.” This instruction from the jury instruction guides specifically addresses a conspiracy with one who intends that a crime not be committed, i.e., a confidential informant.  It was plain to the jury that Kietzer was an informant who did not intend the manufacturing to occur, and, therefore, the overt act had to be committed by appellant.   

            Appellant objects to the court’s reference to the elements of the conspiracy offense.  Using language of CRIMJIG 5.07, the court named as one element the fact that the defendant “or another party to the conspiracy” did one of the overt acts to further the conspiracy.  But it is evident that CRIMJIG 5.12 is carefully formulated to avoid conviction of an innocent person based upon the conspiratorial acts of an informant, and there is no merit in appellant’s assertion that it is rendered less clear by the description of the usual elements of a conspiracy.  Moreover, the clarity of instruction 5.12 is enlarged by the fact that the state in its summation fully acknowledged the need to show that the jury must find an overt act of appellant to support a conviction.  The instruction did not constitute plain error.

3.

            Finally, appellant argues that the district court abused its discretion by allowing the prosecutor to cross-examine appellant concerning a loaded gun discovered in appellant’s car at the crime scene.  Evidentiary rulings will be reversed only upon a showing that the district court clearly abused its discretion to decide the issue.  State v. Profit, 591 N.W.2d 451, 463 (Minn. 1999). 

            Although appellant volunteered, during the course of police intervention with drug activity, that he carried a gun in his vehicle, he testified on direct examination that he had the gun in his car because it was gopher-hunting season.  On cross-examination, he testified that the gun was loaded and uncased and had a round of ammunition in the chamber ready to be fired.  If the jury considered the gun evidence, the record permitted their conclusion that the gun was not kept as it was found to permit gopher hunting. 

            It was not an abuse of the district court’s discretion to conclude that the gun evidence was relevant to the question of whether appellant was involved in the manufacture of methamphetamine.  See State v. Love, 301 Minn. 484, 484-85, 221 N.W.2d 131, 131-32 (1974) (holding gun was properly admitted as evidence that defendant did not possess controlled substance merely for personal use); cf. State v. Buschkopf, 373 N.W.2d 756, 770-71 (Minn. 1985) (holding gun was properly admitted although it was not the murder weapon, because it tended to connect the defendant with the crime). 

            Affirmed.