This opinion will be unpublished and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

A05-1777

State of Minnesota,

Respondent,

vs.

Matthew James Lubovich,

Appellant.

Filed September 5, 2006

Reversed

Dietzen, Judge

Crow Wing County District Court

File No. K5-04-1917

Donald F. Ryan, Crow Wing County Attorney, 322 Laurel Street, Brainerd, MN 56401; and

Mike Hatch, Attorney General, John B. Galus, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2131 (for respondent)

John M. Stuart, State Public Defender, Steven P. Russett, Jessica Merz, Assistant State Public Defenders, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)

Considered and decided by Willis, Presiding Judge; Toussaint, Chief Judge; and Dietzen, Judge.

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

DIETZEN, Judge

Appellant Matthew Lubovich challenges his conviction and sentence for fifth-degree controlled substance crime and possession of drug paraphernalia, arguing that he was denied his constitutional right to a unanimous verdict and, therefore, is entitled to a new trial; additionally, he argues that the district court abused its discretion in ordering restitution and costs of prosecution as part of his sentence. Because appellant was deprived of his constitutional right to a unanimous verdict, we reverse.

FACTS

In April 2004, Deputy Patrick Pickar of the Crow Wing County Sheriff’s Department stopped a motor vehicle driven by David Dunlap for failure to stop at two stop signs. As he approached the vehicle, the deputy noticed a 12-pack of beer sitting on the back seat of the vehicle. The deputy determined that both the driver and his passenger, appellant Matthew Lubovich, were underage, and ordered both men to stand by the side of the road as he searched the vehicle. The deputy found a Mountain Dew box with a brown paper bag inside containing 28.1 grams of psilocybin mushrooms located underneath the driver’s seat. He also found a plastic baggy in Dunlap’s hand, which he determined contained methamphetamine. The deputy searched the ditch alongside the road and found a black bag with multiple baggies inside it, which contained a total of 1.1 grams of methamphetamine and was located approximately 10 to 15 feet from appellant. Dunlap and appellant were arrested.

The deputy applied for a search warrant to search the residence from which he initially saw the vehicle leave. One of the six people present in the residence informed the deputy that the owner was Shawn Crist. The deputy obtained a warrant to search the upstairs portion of the house, which consisted of a living room and a small bedroom.

During the search, deputies seized several items of drug paraphernalia, including smoking pipes and plastic baggies. Officers did not find any evidence to link appellant to the area searched.

Appellant was charged with fifth-degree controlled substance crime, in violation of Minn. Stat. § 152.025, subd. 2 (2004); possession of drug paraphernalia, in violation of Minn. Stat. § 152.092 (2004); and underage possession of alcohol, in violation of Minn. Stat. § 340A.503, subd. 3 (2004). At trial, the state presented evidence that appellant possessed the bag of methamphetamine and the container of psilocybin mushrooms.

During closing arguments, the state argued that appellant was guilty of fifth-degree possession of a controlled substance if the jury found that he possessed either the mushrooms or the methamphetamine. The prosecutor noted:

Now, under this particular instruction, you can find [appellant] guilty of being in possession of a controlled substance if you find by proof beyond a reasonable doubt that he was in possession of the psilocybin mushrooms. You can also find him guilty of fifth degree possession of a controlled substance if you believe he was just in possession of the methamphetamine. You could also find him guilty of fifth degree possession if you find that he was in possession of both. He does not have to be found by proof beyond a reasonable doubt to be in possession of both of those to be convicted of that fifth degree possession. It can be the psilocybin mushrooms only, methamphetamine only, or a combination of the two.

With regard to the count of fifth-degree possession of a controlled substance, the district court instructed the jury:

The statutes of Minnesota provide that whoever unlawfully possesses one or more mixtures containing psilocybin or methamphetamine is guilty of controlled substance crime in the fifth degree, possession. The element of controlled substance crime in the fifth degree, possession, are: First, that defendant unlawfully possessed one or more mixtures containing psilocybin and/or methamphetamine…Second, that defendant knew or believed that the substance or substances defendant possessed was or were psilocybin and/or methamphetamine.

The district court instructed the jury that each juror must agree with the verdict and that its verdicts must be unanimous.

The jury found appellant guilty of fifth-degree controlled substance crime and possession of drug paraphernalia, but acquitted him of underage possession of alcohol. Appellant moved for a new trial, arguing that he was denied his constitutional right to a unanimous verdict because the jury instructions permitted the jury to find appellant guilty of possession of either the mushrooms or the methamphetamine without instructing them that they must unanimously agree as to which controlled substance he possessed. The district court denied appellant’s motion for a new trial without making any findings.

Appellant’s sentence was stayed, and he was placed on supervised probation with conditions, including payment of prosecution costs of $100. Appellant’s sentence was reserved for 60 days on the issue of restitution for the costs of seating a jury when appellant failed to appear for trial. The record contains a restitution worksheet compiled by the Crow Wing County Court Administration, which states that appellant owes $997.34. Appellant signed a payment agreement for monthly payments on this debt to total $1,240.34. This direct appeal follows.

D E C I S I O N

Appellant argues that the district court erred by not instructing the jury that it must unanimously decide which of two acts constituted “possession” for purposes of the charged offense of fifth-degree possession of controlled substance. Appellant did not object at trial to the lack of a specific unanimity instruction, but raised the issue in a motion for a new trial.

Generally, a trial court has broad discretion in selecting the language of jury instructions. State v. Hare, 575 N.W.2d 828, 833 (Minn. 1998). But a trial court’s instructions must state all matters of law necessary for the jury to render a verdict. Minn. R. Crim. P. 26.03, subd. 18(5) (2004). A defendant who fails to object to jury instructions at trial generally forfeits his right to object on appeal. See State v. Crowsbreast, 629 N.W.2d 433, 437 (Minn. 2001). But if the court’s jury charge “contains an error of fundamental law or a controlling principle, a motion for a new trial adequately preserves the issue for appeal.” State v. Glowacki, 630 N.W.2d 392, 398 (Minn. 2001), quoting State v. McKenzie, 532 N.W.2d 210, 222 n.12 (Minn. 1995).

Jury instructions that allow for possible significant disagreement among jurors as to what acts the defendant committed violate the defendant's right to a unanimous verdict. State v. Begbie, 415 N.W.2d 103, 105 (Minn. App. 1987), review denied (Minn. Jan. 20, 1988). “A unanimous verdict shall be required in all cases.” Minn. R. Crim. P. 26.01, subd. 1(5); see also State v. Hart, 477 N.W.2d 732, 739 (Minn. App. 1991) (stating the right to a unanimous jury verdict), review denied (Minn. Jan. 16, 1992). But “unanimity is not required with respect to the alternative means or ways in which the crime can be committed.” Begbie, 415 N.W.2d at 106 (quoting Holland v. State, 91 Wis.2d 134, 143, 280 N.W.2d 288, 292 (1979), cert. denied, 445 U.S. 931 (1980)).

Thus, the United States Supreme Court has held that a state court may determine that “certain statutory alternatives are mere means of committing a single offense, rather than independent elements of the crime.” Schad v. Arizona, 501 U.S. 624, 636, 111 S. Ct. 2491, 2499 (1991). In Schad v. Arizona, the United States Supreme Court had occasion to discuss the difference between alternative means or ways of committing an offense, which do not require jury unanimity, and independent elements of a crime, which require jury unanimity. Schad held that a state may define a criminal offense in terms of statutory alternatives that are “mere means of committing a single offense.” Id. at 636, 111 S. Ct. at 2499. The Court rejected a single test for determining the constitutional standard for “verdict specificity” and instead looked to principles of fundamental fairness and rationality, including historical practice. Id. at 637, 111 S. Ct. at 2500.

The Court has further held, in addressing a federal statute requiring a “series of violations,” that if the individual “violations” constituting the series are merely means of committing the offense, the jury need not agree on which of the violations the defendant committed. Richardson v. United States, 526 U.S. 813, 818, 119 S. Ct. 1707, 1710 (1999). But if the statute makes each “violation” an element of the offense, jury unanimity would be required as to each violation. Id.

Appellant relies on State v. Stempf, 627 N.W.2d 352 (Minn. App. 2001), to argue that the district court should have instructed the jury that it must unanimously agree on which of the alleged facts—possession of psilocybin mushrooms or possession of methamphetamine—appellant committed before it could convict him of fifth-degree possession of a controlled substance. We agree.

In Stempf, the defendant was charged with one count of possession of a controlled substance. But at trial, the state introduced evidence of two acts of possession: possession of methamphetamine obtained from a search warrant executed on the defendant’s workplace and possession of methamphetamine seized from a pick-up truck at the workplace. Id. at 354. The district court refused to give an instruction, requested by the defense, that the jury had to evaluate the two acts separately and unanimously agree that the state had proven the same underlying criminal act beyond a reasonable doubt. The Stempf court held that a defendant’s right to a unanimous verdict was violated when the state presented evidence of two distinct acts of alleged constructive possession to prove a single count of possession of a controlled substance, and the district court failed to instruct the jury that it had to agree on the particular act the defendant committed. Stempf, 627 N.W.2d at 352; see also State v. Begbie, 415 N.W.2d at 105 (holding that jury instructions violate the defendant’s right to a unanimous verdict when they allow for the possibility of significant disagreement among jurors as to which criminal act the defendant committed).

The state argues that Stempf is distinguishable on three grounds: (1) the defendant in Stempf requested a specific unanimity instruction; (2) the two acts here shared a unity of time and place that was not present in Stempf; and (3) the defendant in Stempf presented different defenses to each charged act of possession. The state also argues that Stempf has been effectively overruled by State v. Crowsbreast, 629 N.W.2d 433 (Minn. 2001), and State v. Kelbel, 648 N.W.2d 690 (Minn. 2002).

We conclude that appellant has not waived the unanimity-instruction issue by failing to request the instruction at trial because he raised the issue in his motion for a new trial. See State v. Glowacki, 630 N.W.2d at 398-99 (holding that motion for a new trial preserves claim that jury instructions contain error in fundamental law or controlling principle). Accordingly, we review the issue for plain error, and turn to the state’s other two grounds for distinguishing Stempf to determine whether it was an error of fundamental law to fail to give a unanimity instruction.

The state’s second basis for distinguishing Stempf is that in Stempf the acts of possession occurred in different places and at different times. The Stempf court stated, “the two incidents of possession did not constitute a single act. Both acts were premised upon constructive possession and appellant presented different defenses for each alleged act of possession. The acts occurred in different places and at different times.” Stempf, 627 N.W.2d at 358 (citation omitted). The state argues that it was essential to the holding of Stempf that the acts of possession occurred in different places and at different times. We disagree.

The psilocybin mushrooms appellant was charged with possessing were found in a paper bag inside a box beneath the driver’s seat. The methamphetamine was found inside multiple baggies found in a black bag in the ditch near the car after its occupants had been ordered out of the car. Although these differences in the substances, their packaging, and their location may not suffice to constitute separate behavioral incidents, they certainly were sufficient to allow the jury to distinguish between the two acts of possession and to reach different conclusions as to appellant’s responsibility for each. Cf. id. (noting that “[s]ome jurors could have believed appellant possessed the methamphetamine found on the premises while other jurors could have believed appellant possessed the methamphetamine found in the truck”). The mushrooms found under the driver’s seat were in a location more accessible to Dunlap than to appellant, but the methamphetamine was found in a location where either person could have discarded it. On the other hand, because Dunlap had methamphetamine in his hand, the jury could have found it more likely that the methamphetamine in the ditch was his rather than the mushrooms found under the driver’s seat.

We also reject the state’s third argument that Stempf requires that the defendant present different defenses for each act of possession. A criminal defendant has no burden to present evidence in defense of a criminal charge. See State v. Gassler, 505 N.W.2d 62, 69 (Minn. 1993); State v. Brechon, 352 N.W.2d 745, 747-48 (Minn. 1984). A defendant’s right to a specific unanimity instruction should not turn on what defense, if any, he has presented to the charge. It is evident on the facts of this case that the jury, in exercising its responsibility to scrutinize the state’s evidence, regardless of the defense or defenses articulated by appellant, could have reached different conclusions regarding appellant’s possession of the mushrooms and his possession of the methamphetamine.

Finally, the state argues that Stempf has been effectively overruled by State v. Crowsbreast, 629 N.W.2d 433 (Minn. 2001), and State v. Kelbel, 648 N.W.2d 690 (Minn. 2002). In Crowsbreast, the supreme court held that the jury need not unanimously agree on which prior acts of the defendant constituted the “past pattern of domestic abuse” required for a conviction of first-degree domestic-abuse homicide. Crowsbreast,629 N.W.2d at 439. The court held that the past acts of domestic abuse required by the statute were a “preliminary factual element” underlying the verdict. Id. The court did not mention this court’s opinion in Stempf. And, certainly, past acts that furnish a legal predicate for an offense but are not factually related to that offense present a very different situation from acts that may constitute the offense itself. The alternative current acts of possession in Stempf are easily distinguished from the past, predicate acts in Crowsbreast, and we find no reasonable way of reading Crowsbreast as effectively overruling Stempf.

The supreme court in Kelbel also faced a statutory requirement of a series of past predicate acts imposed as an element of first-degree murder. Kelbel, 648 N.W.2d at 691. The court’s opinion, like that in Crowsbreast, does not discuss this court’s opinion in Stempf. And the opinion appears to recognize the essential distinction between a criminal offense defined solely in terms of current acts and one requiring “the commission of other predicate acts.” Id. at 701. The drug-possession offense at issue here, and in Stempf, does not require past, “predicate acts,” and we believe that Kelbel, like Crowsbreast, has no effect on the precedential value of Stempf.

We conclude, applying Stempf to the facts of this case, that appellant was entitled to a specific unanimity instruction, and that the trial court committed an error of fundamental law in failing to give one. The state argues that the failure to give a specific unanimity instruction, even if plain error, did not affect appellant’s substantial rights. See State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998). An error affects substantial rights if it was prejudicial and had an impact on the outcome of the case. Id. at 741.

Here, the evidence was such that some jurors could have concluded beyond a reasonable doubt that appellant possessed the mushrooms but not the methamphetamine, while others could have concluded that appellant possessed the methamphetamine but not the mushrooms. Had the trial court instructed the jurors that they needed to agree on what act appellant committed, they may not have reached an agreement. Cf. Stempf, 627 N.W.2d at 358 (finding failure to give specific unanimity instruction not harmless where “the jury could have believed appellant’s defense as to one act but not the other”).

The state points to the jury’s acquittal of underage possession of the 12-pack of beer as evidence that any error in failing to give the specific unanimity instruction was not prejudicial. But the not-guilty verdict on the alcohol charge merely shows the jury was able to distinguish one alleged act of possession from another. This supports the conclusion that the instruction should have been given. And, contrary to the state’s argument, the jury’s finding that appellant did not possess the alcohol found in the car does not mean the jury unanimously agreed that appellant possessed the methamphetamine found outside the car rather than the mushrooms found inside it.

We conclude that the trial court’s failure to give a specific unanimity instruction was plain error that affected appellant’s substantial rights and thus requires reversal of the conviction.

II.

Appellant argues that the district court did not comply with the statutory requirements of the restitution statute, nor did the district court make findings that the prosecution costs were allowable under that statute. The state agrees that the district court erred in awarding both restitution and prosecution costs. Although, in light of our reversal of appellant’s conviction, we would not be required to address this issue, we do so in the interest of judicial economy. “[District] courts are given broad discretion in awarding restitution.” State v. Tenerelli, 598 N.W.2d 668, 671 (Minn. 1999), cert. denied, 528 U.S. 1165 (2000). A court may correct an illegal sentence at any time. Minn. R. Crim. P. 27.03, subd. 9.

In Minnesota, the criteria and procedure for ordering restitution are defined by statute. Minn. Stat. §§ 611A.04, .045 (2004). A victim of a crime has the right to receive restitution as part of the disposition of a criminal charge if the offender is convicted. Minn. Stat. § 611A.04, subd. 1(a) (2004); State v. Harwell, 515 N.W.2d 105, 110 (Minn. App. 1994), review denied (Minn. June 15, 1994).

The restitution statute defines a “victim” as “a natural person who incurs a loss or harm as a result of a crime . . . and for purposes of sections 611A.04 and 611A.045, also includes . . . (ii) a government entity that incurs loss or harm as a result of a crime.” Minn. Stat. § 611A.01(b) (2004). The Minnesota Supreme Court recently noted that a “victim” under the restitution statute must be a “direct victim of the crime.” State v. Jones, 678 N.W.2d 1, 25 (Minn. 2004).

The restitution statute defines “crime” as: “[C]onduct that is prohibited by local ordinance and results in bodily harm to an individual; or conduct that is included within the definition of ‘crime’ in section 609.02, subdivision 1,” which defines “crime” as “conduct which is prohibited by statute and for which the actor may be sentenced to imprisonment, with or without a fine.” Minn. Stat. § 611A.01(a) (2004); Minn. Stat. § 609.02, subd. 1 (2004). “Restitution is only proper where the victim’s losses are ‘directly caused’ by the conduct for which the defendant was convicted.” State v. Latimer, 604 N.W.2d 103, 105 (Minn. App. 1999).

A court, or its designee, shall obtain information from the victim in affidavit form or by other competent evidence to determine the amount of restitution owed. Minn. Stat. § 611A.04, subd. 1(a) (2004). The claim for restitution must describe the items or elements of loss, itemize the total dollar amounts of restitution claimed, and specify the reasons justifying these amounts. Id. The issue of restitution may be reserved at sentencing, but the court shall give the defendant an opportunity to respond to specific items of restitution and their dollar amounts. Id.

Appellant argues, and respondent concedes, that the district court did not comply with the requirements of the restitution statute, nor did it make findings that the prosecution costs were allowable under statute. Appellant was not afforded a restitution hearing, nor did the district court make any findings regarding restitution. With regard to the costs imposed by court administration, Crow Wing County Court Administration is not a “direct victim” of appellant’s convictions for possession of a controlled substance and drug paraphernalia under the Jones analysis. And the claimed loss appears to represent the costs of seating a jury when appellant failed to appear for his first jury trial. If appellant is again convicted of the offense, the prosecution may be entitled to $100 in prosecution costs under Minn. Stat. § 631.48 (2004). But court administration is not entitled to any costs under that statute or under the restitution statute.

Reversed.