This opinion will be unpublished and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

A06-119

 

State of Minnesota,

Respondent,

 

vs.

 

Juan Ramon Flores,

Appellant.

 

Filed March 27, 2007

Affirmed

Dietzen, Judge

 

Clay County District Court

File No. K2-05-1283

 

Lori Swanson, Attorney General, Tibor M. Gallo, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and

 

Brian J. Melton, Clay County Attorney, 807 N. 11th Street, P.O. Box 820, Moorhead, MN 56561 (for respondent)

 

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

 

            Considered and decided by Hudson, Presiding Judge; Randall, 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 challenges his conviction of conspiracy to commit first-degree controlled substance crime, arguing that the district court erred in (1) convicting appellant of a crime not charged in the complaint, and (2) erroneously instructing the jury.  Because the district court properly applied the law and did not abuse its discretion, we affirm.

FACTS

In June 2005, a paid informant contacted Detective Jeff Larson of the Moorhead Police Department and stated that Manuel Reyes had offered to sell her 1/4 gram of methamphetamine.  The next day, the informant purchased the drugs from Reyes, and she later called Reyes and told him that she wanted two more ounces by the end of the day.  Reyes told her that he could not get two ounces, but that he could get 1 1/2 ounces for $3,000.  The informant agreed, and they arranged a meeting for later that day. 

The informant, who carried a wire in her purse and was followed by police, drove to Reyes’s apartment building to purchase the drugs.  Reyes approached her car and asked for the money.  The informant refused to pay until she received the drugs.  A Ford Expedition then arrived and parked behind the building.  Reyes approached the Expedition, conversed with its occupants, and then returned to the informant’s car to ask for the money.  When the informant again refused to hand over the money until she received the drugs, Reyes went back to the Expedition, and returned with appellant Juan Ramon Flores.  Flores and Reyes then entered the informant’s car, and Flores showed her the drugs.  Police then stopped the car, seized several bags of methamphetamine, and arrested Flores, Reyes, and Ricky Ramirez (the other person from the Expedition). 

            After a jury trial, Flores was convicted of first-degree conspiracy to commit a controlled substance crime and sentenced to 86 months in prison.  This appeal follows.

D E C I S I O N

I.

            Appellant argues that the complaint failed to state the proper statutory authority for a charge of first-degree conspiracy to commit controlled substance crime and failed to identify the “overt act” of the conspiracy, and, therefore, his conviction must be overturned.  Appellant concedes that this issue was not raised before the district court.

We review alleged error not raised before the district court under the plain-error doctrine.  State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998).  The plain-error doctrine requires that there be (1) error; (2) that is plain; and (3) that affects the defendant’s substantial rights.  Id. To meet the third prong, a defendant must show that the error was prejudicial and affected the outcome of the case.  Id. at 741.  If these three prongs are met, we then consider whether to address the error to ensure the fairness and integrity of the judicial proceedings.  Id. at 740.

            Appellant first argues that the complaint was deficient for failure to state the proper statutory authority.  “The charges upon which the state may proceed at trial must be included within ‘the indictment, complaint or tab charge.’”  State v. Gisege, 561 N.W.2d 152, 156 (Minn. 1997) (quoting Minn. R. Crim. P. 10.01).  The complaint must be “interpreted so as to uphold its validity whenever . . . 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., 152 N.W.2d at 512.  See also State v. Ewald, 373 N.W.2d 358, 359 (Minn. App. 1985) (finding that a complaint was sufficient where the “essential facts constituting the offense were stated” and the failure to list an element of the offense was not significant). 

Here, the complaint charged Flores with first-degree conspiracy to commit a controlled substance crime, sale in violation of Minn. Stat. § 152.021, subd. 1(1) (2004) (making it illegal to sell 10 grams or more of methamphetamine) and Minn. Stat. § 609.05 (2004) (liability for crimes of another).  Minn. Stat. § 609.05, subd. 1 states that “[a] person is criminally liable for a crime committed by another if the person intentionally aids, advises, hires, counsels, or conspires with or otherwise procures the other to commit the crime.”  The complaint did not reference Minn. Stat. § 152.096 (2004) (prohibiting drug conspiracies) or Minn. Stat. § 609.175 (2004) (conspiracy).  But by its very language, the complaint charged appellant with conspiracy.  As such, the state’s argument that no error occurred is compelling. 

But, even assuming arguendo that error did occur and that such error was plain, the third prong of the Griller test—prejudice to the defendant—is dispositive.  When the wrong statute is cited in a complaint or indictment, “[u]nless there is actual proof that defendant has in fact been misled as to the charge brought against him, to his prejudice, it is not ground for invalidating the conviction after a fair trial or a plea of guilty.”  State v. Clark, 270 Minn. 538, 552, 134 N.W.2d 857, 867 (1965).  Thus, where a defendant does not object to the sufficiency of the complaint at trial and the evidence all related to the offense convicted of (rather than the statute cited in the complaint), “[i]t can hardly be open to question that defendant’s counsel understood the nature of the charge.”  Id. at 549-50, 134 N.W.2d at 865.

Here, Flores was not misled.  The complaint stated that he was being charged with first-degree conspiracy to commit a controlled substance crime.  He did not object to the complaint for lack of notice at the trial and his defense at trial was consistent with a conspiracy charge.  On this record, it appears that Flores had ample notice that he was charged with conspiracy and was not prejudiced by the manner in which the crime was charged. 

Flores also argues that the complaint “failed to mention what overt act or acts made up the conspiracy.”  Because this alleged error was not objected to at trial, it is also reviewed under the plain error test.  See Griller, 583 N.W.2d at 740 (requiring plain error that affected the defendant’s substantial rights if error is unobjected to at trial).  Substantial rights are affected “if the error was prejudicial and affected the outcome of the case.”  Griller, 583 N.W.2d at 741.  The appellant bears a “heavy burden” of persuasion on this prong of the test.  Id.

            Flores argues that he was prejudiced by not knowing what overt act was specifically alleged against him.  He claims that the “vague notice that someone had committed some overt acts . . . is not good enough.”  But the complaint charges that Flores “did intentionally, aid, advise, hire, counsel, or conspire with another or otherwise procure the other to commit a crime, to wit: to unlawfully sell one or more mixtures of a total weight of ten grams or more containing Methamphetamine.”  The probable cause statement alleges that the informant arranged to purchase drugs from Reyes, that the informant arrived at Reyes’s apartment to buy the drugs, that Flores entered the informant’s vehicle carrying what appeared to be an oil can, and unscrewed the bottom of the oil can to reveal the drugs.  These are the same events that the state’s witnesses testified to at trial, and these facts provide ample support for an allegation that Flores committed an overt act towards the sale of drugs.  Thus, Flores has not met his heavy burden of demonstrating prejudice.

Flores relies on State v. Duffy,559 N.W.2d 109, 111 (Minn. App. 1997) to argue that the complaint itself must identify the overt act.  But Duffy does not impose that requirement.  In Duffy,the district court dismissed a conspiracy charge for lack of probable cause where the “complaint lacked either direct evidence or sufficient circumstantial evidence of an overt act in actual furtherance of a sale—something more than talk.”  Id.(emphasis in original).  The district court dismissed the charge because the facts did not support the occurrence of an overt act, and not (as Flores alleges) because the complaint failed to specifically identify the overt act.  Id.

II.

Appellant argues that the district court erred in its instruction to the jury by misidentifying the overt act.  On review, we “afford a [district] court significant discretion to craft the jury instructions.”  State v. Kuhnau,622 N.W.2d 552, 555 (Minn. 2001).  Because Flores did not object to the jury instructions at trial, he has waived any right to challenge the instructions unless they were so misleading as to constitute plain error.  Griller, 583 N.W.2d at 740.  See also State v. Gutierrez, 667 N.W.2d 426, 433 (Minn. 2003) (applying the plain-error rule to unobjected-to jury instructions); Minn. R. Crim. P. 26.03, subd. 18(3) (“No party may assign as error any portion of the charge or omission therefrom unless the party objects thereto before the jury retires to consider its verdict.”).

A jury instruction is error if it materially misstates the law.  State v. Moore, 699 N.W.2d 733, 736 (Minn. 2005).  Jury instructions must be viewed in their entirety to determine whether they fairly and adequately explain the law of the case.  State v. Flores, 418 N.W.2d 150, 155 (Minn. 1988).  The court’s instructions must define the crime charged.  Kuhnau, 622 N.W.2d at 556. 

Conspiracy requires “(1) an agreement between two or more people to commit a crime and (2) an overt act in furtherance of the conspiracy.”  Id.; State v. Olkon, 299 N.W.2d 89, 104 (Minn. 1980); Minn. Stat. § 609.175, subd. 2 (2004).  “An overt act can be the slightest action on the part of a conspirator.”  State v. Stewart, 643 N.W.2d 281, 297 (Minn. 2002); State v. St. Christopher, 305 Minn. 226, 235, 232 N.W.2d 798, 804 (1975).  The overt act must be “something more than talk.”  Duffy, 559 N.W.2d at 111 (affirming dismissal of conspiracy charge where facts did not show an “overt act”); see also Stewart, 643 N.W.2d at 297 (noting that although the record indicates “discussion about committing a crime,” nothing in the record shows an overt act).

Flores argues that the instructions misled the jury to believe that an agreement to commit a crime could constitute the overt act because the district court stated, “[t]he overt acts alleged in this case are aid, advise, hire, counsel or conspire with another to unlawfully sell one or more mixtures of a total weight of 10 grams or more containing methamphetamine.”  Appellant is correct that this part of the instruction is deficient.  

But jury instructions must be viewed in their entirety, and when taken as a whole, we do not believe that the overt act requirement in the jury instruction was deficient.  See Flores, 418 N.W.2d at 155.  The district court instructed the jury 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 furtherance of the conspiracy.”  It also instructed that an “overt act is any action taken by one of the conspirators with the intention of furthering the accomplishment of any object of the conspiracy.  The act does not itself have to be a criminal act, but it must be done with the purpose of furthering the conspiracy.”  Thus we conclude that the jury instructions viewed in their entirety, and taken as a whole, satisfactorily require an overt act. 

But even if the jury instruction was plain error, appellant must show that the unobjected-to jury instruction was prejudicial and affected the outcome of the case.  Id. at 741.  Here, the record contains substantial evidence of overt acts to support the conviction.  Specifically, the prosecution presented evidence that appellant was involved in the preparation of the drug sale, including going to the apartment with $3,000 worth of methamphetamine, bringing the drugs to the informant’s car, and opening the container where the drugs were concealed.  On this record, we cannot conclude that the outcome would have been affected by a more explicit definition of overt act as an action.  Therefore, Flores has not shown prejudice and fails on the third prong of the plain-error test.  Id. at 740.

            Affirmed.