This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-2359

 

State of Minnesota,
Respondent,

vs.

Ralph Huertas,
Appellant.

 

Filed February 6, 2007

Affirmed

Stoneburner, Judge

 

Stearns County District Court

File No. K0035707

 

Lori Swanson, Attorney General, John B. Galus, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

Janelle Kendall, Stearns County Attorney, Administration Center, Room 448, 705 Courthouse Square, St. Cloud, MN 56303-4773 (for respondent)

 

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

 

            Considered and decided by Stoneburner, Presiding Judge; Halbrooks, Judge; and Huspeni, Judge.*

U N P U B L I S H E D  O P I N I O N

 

STONEBURNER, Judge

 

            Appellant challenges his conviction of first-degree assault, arguing that the district court committed plain error by instructing the jury on aiding and abetting.  Appellant also challenges his sentence, asserting that the district court lacked authority to submit aggravating sentencing factors to the jury and erroneously instructed the jury regarding sentencing factors, and that the evidence does not support the jury’s finding that the victim was treated with particular cruelty.  We affirm.

FACTS

 

            G.L. owed appellant Ralph Mario Huertas money for crack cocaine, which G.L. had obtained from Huertas.  After failing to get the money from his brother, G.L. told Huertas he could get the money from his home in another town.  G.L got into a car with Huertas and Huertas’s girlfriend, Shannon Duncan, thinking that Duncan was going to drive him to his home to get the money.  Huertas told Duncan to drive to a location where they picked up a man named “Slim.”  Huertas asked Slim: “Did you bring the gun?”  Slim said, “No.” 

Duncan drove the car into the country and Huertas told her to turn off the road onto a driveway in a wooded area.  Huertas told Duncan to release the trunk latch, and Huertas, Slim, and G.L. got out of the car.  Huertas took a tire iron from the trunk.  According to G.L., Huertas struck him three times with the tire iron.  According to Huertas, Slim struck G.L. with the tire iron.  After the attack, Huertas and Slim got back into the vehicle and drove away, leaving G.L. lying in the dark and in the snow.  G.L. made his way to a nearby residence where he obtained assistance.

            Huertas testified that he did not intervene in the assault because he feared Slim.  Huertas stated that, after the assault, Slim gave him the tire iron and told him to wipe it off.  Huertas used a rag in the back of the car to clean off the tire iron, and later, from the jail, tried to get his sister to have someone retrieve and further clean the tire iron.  Huertas admitted that he lied to the police when, at the time of his arrest, he told them that he did not know anything about the assault.  Huertas was subsequently charged with first- and second-degree assault.

            At trial, the district court, without objection, instructed the jury on the elements of first- and second-degree assault and liability for aiding and abetting.  The jury found Huertas guilty of first-degree and second-degree assault. 

            After the jury delivered guilty verdicts, the district court submitted to the jury the question: “Was [G.L.] treated with particular cruelty for which [Huertas] should be held responsible?”  The district court instructed the jury that its answer to the interrogatory would “assist the [c]ourt in determining the defendant’s sentence” and would make Huertas eligible for an “aggravated sentence.”  The district court further instructed the jury:

Particular cruelty involves conduct and harm more serious than the typical offense, but does not involve the elements of the offense itself.  For example, in determining whether the defendant committed Assault in the First Degree with particular cruelty, you may not consider whether the defendant inflicted great bodily harm upon [G.L.].  Instead, you may consider: [f]ailure to render aid to [G.L.] or failure to summon medical authorities.  Or the location of the assault.

 

The jury answered the question “yes,” and the district court imposed an upward durational departure from the presumptive sentence.  This appeal followed.

D E C I S I O N

 

I.

            Huertas argues that the district court committed plain error by instructing the jury on aiding and abetting because the evidence does not support that theory of culpability.  A party may not challenge a jury instruction unless the party objects to the instruction before the jury retires to deliberate.  Minn. R. Crim. P. 26.03, subd. 18(3).  But plain errors or defects affecting substantial rights may be considered on appeal even though they were not brought to the attention of the district court.  Minn. R. Crim. P. 31.02; State v. Crowsbreast, 629 N.W.2d 433, 437 (Minn. 2001) (stating appellate courts may review jury instructions if the instructions contain plain error affecting substantial rights or an error of fundamental law).  Under the plain-error test, “the challenging party must show: (1) error, (2) that is plain, and (3) that affects substantial rights.”  State v. Baird, 654 N.W.2d 105, 113 (Minn. 2002) (citing State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998)).  Even then, we correct the error only if it seriously affects the fairness, integrity, or public reputation of the judicial proceedings.  Griller, 583 N.W.2d at 740.

            Huertas does not challenge the accuracy of the wording of the aiding and abetting instruction, but argues that there is no evidence in the record to support a finding that he aided and abetted the assault against G.L.  We disagree. 

            A defendant may be liable for the crimes of another if the defendant “intentionally aids, advises, hires, counsels, or conspires with or otherwise procures” the principal to commit the crime.  Minn. Stat. § 609.05, subd. 1 (2002).  Mere presence at the scene of a crime does not by itself prove that a person aided or abetted, because inaction, knowledge, or passive acquiescence does not rise to the level of criminal culpability.  State v. Russell, 503 N.W.2d 110, 114 (Minn. 1993).  But presence, companionship, and conduct before and after the offense are circumstances from which a person’s intentional participation in the criminal offense may be inferred.  State v. Parker, 282 Minn. 343, 355,164 N.W.2d 633, 641 (1969).  The state meets its burden of proving aiding and abetting by showing “some knowing role in the commission of the crime by a defendant who takes no steps to thwart its completion.”  Russell, 503 N.W.2d. at 114 (quotation omitted).

            Huertas argues that there was no evidence that he assisted or encouraged Slim to assault G.L. or that he had a legal duty to stop the assault, and because G.L. testified that only one person assaulted him, the evidence does not support the instruction.  But Huertas ignores the circumstantial evidence that he and Slim together were engaged in trying to collect money for drugs from G.L.  Even if the jury believed that Slim, rather than Huertas, actually struck G.L., the evidence supports a theory that Huertas was aiding and abetting Slim in pursuit of payment for drugs or punishment for failure to pay for drugs.  The district court did not err in giving an aiding and abetting instruction. 

II.

            Huertas next asserts that the district court lacked authority to submit aggravating sentencing factors to the jury because the 2005 amendments to the sentencing guidelines, permitting sentencing juries, do not apply to this case.  Huertas has conceded that this issue is governed by Hankerson v. State, 723 N.W.2d 232 (Minn. 2006), which was released after briefing in this case.  In Hankerson, the supreme court stated that nothing in the pre-amendment sentencing guidelines prohibited a district court from imposing a sentence based on facts found by a jury.  Id. at 236.  And the supreme court also recently held that the district court has inherent authority to impanel a sentencing jury.  State v. Chauvin, 723 N.W.2d 20, 27 (Minn. 2006).  Based on these cases, we conclude that Huertas’s argument on this issue is without merit.

III.

 

            Huertas next asserts that unobjected-to jury instructions during the sentencing phase of the trial contained two errors of fundamental law that were plain and prejudicial.  As noted above, we review such a claim under the three-prong test set out in Griller.  See Griller, 583 N.W.2d at 740.  “The district court is allowed considerable latitude when selecting language for jury instructions.”  State v. Johnson, 699 N.W.2d 335, 339 (Minn. App. 2005), review denied (Minn. Sept. 28, 2005).  “The law requires only that the charges as a whole convey to the jury a clear and correct understanding of the law of the case.”  Id. (quotation omitted).  Minnesota has long recognized that in criminal cases, a special interrogatory may be used if it relates solely to sentencing and does not tend to lead a jury to a finding of guilt.  State v. Schmitz, 559 N.W.2d 701, 706 (Minn. App. 1997).

            Huertas first asserts that the district court erred by telling the jury that its answers to the aggravating-factor interrogatory would “assist the [c]ourt in determining the defendant’s sentence” and would make Huertas eligible for an “aggravated sentence.”  The recently published CRIMJIG instruction on sentencing proceedings states, in part: “Your answers will assist the Court in determining the defendant’s sentence.”10 Minnesota Practice,CRIMJIG 8.01 (2006).  And the information that the jury’s answers would make Huertas eligible for an enhanced sentence only stated the obvious.  The instruction as a whole accurately states the law, and because it was given after the guilt phase of the trial, had no bearing on the jury’s determination of guilt.  We find no error, and certainly no plain error, in the instruction given. 

            Huertas also asserts that the district court erred in defining “particular cruelty” by specifically referring to the location of the assault and failure to render aid, the very evidence the state intended to rely on to establish particular cruelty.  But the instruction correctly states the law and is not misleading.  See State v. Jones, 328 N.W.2d 736, 738 (Minn. 1983) (holding that defendant’s acts in leaving a beaten victim and failing to anonymously summon medical aid support a determination that the crime was committed in a particularly cruel way); see also State v. Norton, 328 N.W.2d 142, 146 (Minn. 1982) (indicating that taking a victim to a secluded corn field to assault her contributed to the particular cruelty of the assault).  A district court may tailor a proposed jury instruction to fit the facts of the case.  State v. McCuiston,514 N.W.2d 802, 804 (Minn. App. 1994), review denied (Minn. June 15, 1994). 

            Furthermore, the instruction answers Huertas’s argument that the jury was required to have some guidance in order to determine that this crime was more serious than the typical first-degree assault in order to find particular cruelty.  See State v. Schantzen, 308 N.W.2d 484, 487 (Minn. 1981) (stating that “particular cruelty” is cruelty “of a kind not usually associated with the commission of the offense in question”).  The instruction gave the jury specific and accurate guidance on factors it could use to determine particular cruelty, and evidence in the record supported use of those factors in this case.  Therefore, Huertas’s argument that there is insufficient evidence to support the jury’s finding of particular cruelty is without merit.

            Affirmed.