This opinion will be unpublished and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

A06-664

 

 

State of Minnesota,

Respondent,

 

vs.

 

Christopher Sean Daniels,

Appellant.

 

 

Filed June 26, 2007

Affirmed

Halbrooks, Judge

 

 

Hennepin County District Court

File No. 0535147

 

 

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

 

Michael O. Freeman, Hennepin County Attorney, Michael Richardson, Assistant County Attorney, C-2000 Government Center, 300 South 6th Street, Minneapolis, MN 55487 (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 Lansing, Presiding Judge; Halbrooks, Judge; and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N

HALBROOKS, Judge

            Appellant challenges his conviction of felon in possession of a firearm and two counts of second-degree assault, arguing that (1) the evidence is insufficient to support his conviction on one count of second-degree assault, (2) he was denied his right to a unanimous verdict, and (3) his rights were prejudiced by the state’s impermissible amendment of the complaint.  Because (a) the evidence is sufficient to support the verdict, (b) the district court’s failure to give a unanimity instruction did not affect appellant’s substantial rights, and (c) the state did not constructively amend the complaint, we affirm. 

FACTS

On November 11, 2004, officers from the Minneapolis Police Department were dispatched to the apartment of Ebony Montgomery in Minneapolis between three and five times.  On one occasion, Erica Smith, a friend of Montgomery who was temporarily staying at the apartment with her children, told police that her boyfriend, appellant Christopher Sean Daniels, had broken out the windows of her car with a brick when she refused to go outside and speak with him.  Montgomery and her sister Janika, who was also at the apartment, testified that they saw appellant break the windows of Smith’s car with a brick. 

At one point, appellant both stood outside one of the apartment windows and knocked on the front door and asked Smith to come outside to talk.  Montgomery testified that appellant had a gun in his hand and that when Smith refused to go outside, he pointed the gun at the window where Montgomery was standing.  Montgomery told the responding officers that she was “very afraid” that appellant would shoot.  She also told the officers that appellant and some other men were running outside the apartment with their hands at their waistbands, under their shirts, as if they were hiding guns.

On the morning of November 12, 2004, as Montgomery was looking out the front window of her apartment for her children’s school bus, she saw appellant standing in the street in front of the apartment.  When Montgomery turned and walked away from the window, she heard gunshots.  One of the bullets went through the window where she had been standing and lodged into the opposite wall.  Montgomery called law enforcement, who later recovered two discharged cartridge casings on the street in front of the residence.

Because officers believed that appellant had been living with Smith, they obtained and executed a search warrant on November 22, 2004, to search Smith’s residence for a firearm and any ammunition.  Smith testified that although appellant’s name was not on the lease, he had been staying at her apartment with her and her children, and he had his own key to the apartment.  The officers found a Smith and Wesson semi-automatic pistol in a black nylon bag in a closet in Smith’s apartment.  The bag also contained ammunition as well as “books and manuals related to a vehicle.”  Smith told the officers that the gun they found was not hers and that she had no knowledge of there ever being a gun in the apartment.  Smith testified that she had previously seen the black nylon bag in appellant’s van.

            Sergeant Bruce Carpenter testified that appellant had borrowed his brother’s 1996 black, full-size, GMC van in November 2004, and that the vehicle owner’s manuals found in the black nylon bag matched the year, make, and model of the van.  In addition, both Montgomery and Janika testified that appellant was driving a black van on November 11, 2004.

Appellant was charged with one count of felony possession of a firearm in violation of Minn. Stat. § 624.713, subd. 1(b) (2004), and two counts of second-degree felony assault in violation of Minn. Stat. § 609.222, subd. 1 (2004) (one count for assaulting Montgomery on November 11, 2004, and one count for assaulting Montgomery on November 12, 2004).  A jury found appellant guilty of all charges, and appellant was subsequently sentenced to 60 months on count I, and concurrent sentences of 51 months on count II and 58 months on count III.  This appeal follows. 

D E C I S I O N

I.

            Appellant argues that the evidence is insufficient to support his conviction of second-degree assault for the events that took place on November 11, 2004.  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 a 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 the jury believed the state’s witnesses and disbelieved any evidence to the contrary.  State v. Pieschke, 295 N.W.2d 580, 584 (Minn. 1980).  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 that the defendant was guilty of the charged offense.  Bernhardt v. State, 684 N.W.2d 465, 476-77 (Minn. 2004). 

Under Minn. Stat. § 609.222, subd. 1 (2004), whoever assaults another with a dangerous weapon is guilty of second-degree assault.  “Assault” is defined, in part, as “[a]n act done with intent to cause fear in another of immediate bodily harm or death.”  Minn. Stat. § 609.02, subd. 10(1) (2004).  “‘Dangerous weapon’ means any firearm, whether loaded or unloaded, or any device designed as a weapon and capable of producing death or great bodily harm.”  Minn. Stat. § 609.02, subd. 6 (2004). 

            Appellant argues that the evidence is insufficient to show that he intended to cause fear in another of immediate bodily harm on November 11, 2004.  The phrase “‘[w]ith intent to’ . . . means that the actor either has a purpose to do the thing or cause the result specified or believes that the act, if successful, will cause that result.”  Minn. Stat. § 609.02, subd. 9(4) (2004).  “Intent may be proved by circumstantial evidence, including drawing inferences from the defendant’s conduct, the character of the assault, and the events occurring before and after the crime.”  In re Welfare of T.N.Y., 632 N.W.2d 765, 769 (Minn. App. 2001) (citing Davis v. State, 595 N.W.2d 520, 525-26 (Minn. 1999)).  “The intent of the actor, as contrasted with the effect upon the victim, becomes the focal point for inquiry.”  State v. Hough, 585 N.W.2d 393, 396 (Minn. 1998) (quotation omitted).  Furthermore, “[t]he crime is in the act done with intent to cause fear, not in whether the intended result is achieved.”  Id. 

            The record shows that on November 11, law-enforcement officers were dispatched to Montgomery’s apartment at least three times in response to Montgomery’s calls.  On one occasion, appellant smashed Smith’s car windows with a brick when she would not speak to him.  Montgomery testified that on another occasion, appellant was standing outside the window with a gun in his hand and pointed the gun toward the window where she was standing when Smith refused to speak with him.  The complaint indicates that Montgomery was “very afraid” that appellant would shoot.  The record also shows that later in the day, appellant and some other men were seen running outside the apartment with their hands under their shirts as if they were hiding guns. 

Appellant cites to this court’s decision in T.N.Y. for the proposition that holding a gun, without pointing it, is “insufficient evidence to support a finding of intent to cause fear of immediate bodily harm.”  But in T.N.Y., there was testimony that the defendant “was not sighting the weapon, did not point the gun in a threatening way directly at the officers, or indicate by his voice or manner that he was going to shoot.”  632 N.W.2d at 767-68.  Furthermore, the defendant had not exhibited prior threatening behavior and had not made any threatening comments or actions that would cause one to conclude that he intended to shoot the gun.  Id. at 770. 

In contrast, Montgomery testified that appellant pointed a gun directly at her through the window.  In addition, appellant had demonstrated a tendency to act violently earlier in the day by breaking Smith’s car windows.  Viewing this evidence in the light most favorable to the conviction and considering all of the events that occurred on November 11, we conclude that appellant brandished the gun in such a manner that the jury could have reasonably found that appellant intended to cause fear in another of immediate bodily harm and that the evidence is therefore sufficient to support appellant’s conviction of second-degree assault.  See State v. Patton, 414 N.W.2d 572, 573, 574 (Minn. App. 1987) (affirming defendant’s conviction of second-degree assault where defendant brandished knife and went into “an attack position” but did not swing the knife or attempt to stab victims); State v. Soine, 348 N.W.2d 824, 826-27 (Minn. App. 1984) (holding that defendant intended to cause fear of immediate bodily harm sufficient to support a conviction of second-degree assault when defendant waved a knife in front of victim), review denied (Minn. Sept. 12, 1984). 

II.

Appellant also argues that the district court denied him the right to a unanimous verdict when it instructed the jury that it could convict him for being a felon in possession of a firearm in violation of Minn. Stat. § 624.713, subd. 1 (2004), if it found that appellant possessed a weapon on either November 11, 2004 or November 12, 2004.  Appellant did not request a specific unanimity instruction, object at trial to its absence, or raise the issue in a motion for a new trial. 

District courts are allowed “considerable latitude” in the selection of language for the jury instructions.  State v. Baird, 654 N.W.2d 105, 113 (Minn. 2002).  “[J]ury 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).  Under Minn. R. Crim. P. 26.01, subd. 1(5), a verdict must be unanimous.

A defendant waives the right to contest the district court’s jury instructions on appeal if they fail to object to the instructions at trial.  State v. Begbie, 415 N.W.2d 103, 105 (Minn. App. 1987), review denied (Minn. Jan. 20, 1988); see also Minn. R. Crim. P. 26.03, subd. 18(3).  But “a failure to object will not cause an appeal to fail if the instructions contain plain error affecting substantial rights or an error of fundamental law.”  State v. Cross, 577 N.W.2d 721, 726 (Minn. 1998); see also Minn. R. Crim. P. 26.03, subd. 18(3) (stating that “[a]n error in the instructions with respect to fundamental law or controlling principle may be assigned in a motion for a new trial though it was not otherwise called to the attention of the court”).  The plain-error standard requires that the defendant show: (1) error; (2) that was plain; and (3) that affected substantial rights.  State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998).  “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.”  State v. Crowsbreast, 629 N.W.2d 433, 437 (Minn. 2001) (alteration in original) (quotation omitted).   

“[T]his court has cautioned against using ‘either/or’ jury instructions because they are unclear and potentially raise doubt about the unanimity of the jury verdict.”  State v. Stempf, 627 N.W.2d 352, 355 (Minn. App. 2001).  Whether a defendant’s right to a unanimous verdict has been violated depends on whether the defendant’s conduct constituted separate criminal “acts” or simply various “means” by which the criminal act may be committed.  Begbie, 415 N.W.2d at 105-06.  “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 (emphasis added) (citing Begbie, 415 N.W.2d at 105).  “But ‘unanimity is not required with respect to the alternative means or ways in which the crime can be committed.’”  Id. at 354-55 (emphasis added) (quoting Begbie, 415 N.W.2d at 106). 

In Stempf, the defendant was charged with one count of possession of a controlled substance.  Id. at 353-54.  But the state introduced evidence of two acts in support of the conviction, including evidence that defendant possessed methamphetamine that was found at his workplace and evidence that defendant possessed methamphetamine found in a truck that defendant was riding in.  Id. at 354.  Defendant requested a unanimity instruction, requiring the jury to evaluate the two acts separately and to unanimously agree that the state had proven the same act beyond a reasonable doubt.  Id.  But the district court refused to give the instruction, and the prosecutor subsequently argued during closing that the jury could convict defendant if some jurors found that the defendant possessed the methamphetamine that was found in the truck while other jurors found that the defendant possessed the methamphetamine found at his workplace.  Id.  The jury found defendant guilty, and he received a stayed sentence of one year and one day in prison.  Id.  This court reversed, stating that “[b]ecause the state did not elect which act of possession it was relying on for conviction, . . . the [district] court’s refusal to give a specific unanimity instruction violated [defendant’s] right to a unanimous verdict.”  Id. at 358.  We reasoned that because “[t]he acts occurred in different places and at different times[,] [u]pholding the conviction . . . would impose punishment without any fact-finder having found that appellant committed the crime.”  Id.   

Here, the complaint alleged that “on or about November 11, 2004 or November 12, 2004,” appellant possessed a firearm after having been convicted or adjudicated delinquent of a crime of violence.  The probable cause portion of the complaint alleges the following two acts of possession:  (1) on November 11, 2004, Montgomery allegedly saw appellant, who was standing outside her apartment, point a gun at the window where she was standing after Smith refused to go outside; and (2) on November 12, 2004, appellant fired a shot at Montgomery’s apartment.  Because appellant had previously stipulated that under the statute, he was a person who could not transport, possess, or receive a firearm, the district court instructed the jury at the close of trial that the issues to be decided were:  (1) whether appellant “knowingly shipped, transported, possessed or received a firearm,” and (2) whether appellant’s “acts took place on or about November 11th or 12th, 2004, in Hennepin County.”  Because this instruction did not require the jurors to unanimously agree on which date appellant possessed the firearm, we conclude that it ultimately allowed the jurors to convict appellant without agreeing unanimously on one act of possession and was therefore erroneous.    

But even if the district court’s failure to give a specific unanimity instruction constitutes plain error, we need not reverse unless the error affected appellant’s substantial rights.  An error affects substantial rights if it was prejudicial and had an impact on the outcome of the case.  Griller, 583 N.W.2d at 741.  Here, the jury concluded that appellant was guilty of two counts of second-degree assault for the events that took place on both November 11 and November 12, which means that the jury necessarily found that appellant assaulted another with a dangerous weapon (here, a gun).  Thus, this is not a case where, had the district 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 that the record did “not permit a conclusion that violation of [defendant’s] right to a unanimous verdict may have been harmless error” where “the jury could have believed appellant’s defense as to one act but not the other”).  Rather, the jurors clearly all believed that appellant possessed a gun on both November 11 and November 12 and could not have found appellant guilty of one incident and not guilty of the other.  Accordingly, we conclude that the district court’s error did not affect appellant’s substantial rights.  

III.

Finally, although the state did not move to amend the complaint, appellant argues that the state constructively amended the complaint when the prosecutor allegedly argued to the jury during closing that appellant was guilty of being a felon in possession, in part, based on the gun that police found in Smith’s apartment on November 22, 2004.  Appellant contends that his conviction should be reversed because the felon-in-possession charge was based on appellant’s alleged possession of a handgun on either November 11, 2004 or November 12, 2004, but not based on the discovery of the gun on November 22, 2004. 

            “Prior to trial the [district] court is relatively free to allow an amendment charging an additional offense in a criminal complaint.”  State v. Guerra, 562 N.W.2d 10, 12 (Minn. App. 1997).  But after trial has begun, Minn. R. Crim. P. 17.05 provides that “[t]he court may permit an indictment or complaint to be amended at any time before verdict or finding if no additional or different offense is charged and if substantial rights of the defendant are not prejudiced.”  Therefore, “when the record demonstrates that a defendant is confronted with an additional charge after trial has begun, such charge constitutes a constructive amendment of the complaint and must comply with the requirements of Minn. R. Crim. P. 17.05.”  Guerra, 562 N.W.2d at 13.

            Citing Guerra, appellant argues that the prosecutor’s “closing and rebuttal arguments resulted in the constructive amendment of the complaint.”  In Guerra, the defendant, Javier Guerra, was charged with one count of possession of a stolen firearm and two counts of possession of a short-barrelled shotgun.  Id. at 11.  The count alleging possession of a stolen firearm charged that defendant, on or about January 30, 1996, received, possessed, transferred, bought or concealed stolen property, knowing that the property stolen was a firearm.  Id.  The probable-cause portion of the complaint described recent thefts in the area, one involving seven shotguns that were taken from a house on December 5, 1995, and another involving seven handguns that were taken from a house on December 31, 1995.  Id.  In addition, the probable-cause section stated that an individual named Benjamin Schandorff, who confessed to taking the handguns, subsequently delivered them to a person named Javier in exchange for drugs.  Id.  The probable-cause section of the complaint stated that police executed a search warrant on defendant’s apartment on January 30, 1996, recovering three of the seven shotguns but no handguns.  Id. 

            The record in Guerra indicated that all parties, including the district court judge, believed that the charge of possession of a stolen firearm stemmed from the possession of the shotguns found in the apartment and not the handguns.  Id.  As a result, in a pretrial motion, the defendant’s attorney argued that because possession of the handguns was not charged, Schandorff should not be allowed to testify regarding the stolen handguns and the subsequent guns-for-drugs exchange.  Id. at 11-12.  The district court initially decided to allow only as much testimony with regard to the handguns as was necessary to establish a foundation for the presence of the police at the defendant’s apartment when the shotguns were discovered.  Id. at 12.  But after reconsidering the issue after the state had rested its case, the district court determined that the reference to “firearms” in count one of the complaint was broad enough to include the handguns and that the language “on or about January 30, 1996” could include an offense that allegedly occurred in December 1995.  Id.  Accordingly, the district court allowed (1) the state to reopen its case and present evidence of the defendant’s possession of the handguns that had been stolen in December 1995, and (2) an amendment of the jury instructions to include the events that occurred on or about December 1995.  Id.  The defendant was subsequently convicted of possession of stolen firearms, but acquitted of possession of the short-barrelled shotguns.  Id.

            On appeal, the defendant argued that the district court constructively amended the complaint.  Id. at 11.  This court agreed, holding that “[a]lthough the state did not move to amend the complaint, the district court’s decision to allow the prosecutor to reopen its case to present additional evidence and to change the date in the jury instruction constituted a constructive amendment,” which therefore must comply with the requirements of rule 17.05.  Id. at 13. 

But the facts here are distinguishable from Guerra.  Appellant was charged in the complaint with felony possession of a firearm based on the events occurring on November 11 and November 12.  While the prosecutor referred during closing argument to evidence seized by the police during the search of Smith’s residence on November 22, including the black nylon bag containing a gun and owner’s manuals belonging to a vehicle allegedly driven by appellant in November 2004, the state did not seek to charge appellant with felony possession, or any other offense, based on the November 22 search.  Instead, the prosecutor referenced the evidence seized on November 22 in an attempt to bolster its argument that appellant possessed a gun on November 11 and 12.  Moreover, unlike Guerra, the district court did not amend the jury instructions to include the November 22 search.  Rather, the district court instructed the jury that the elements of the felon-in-possession offense were: “first, [appellant] knowingly shipped, transported, possessed or received a firearm,” and “[s]econd, [appellant’s] acts took place on or about November 11th or 12th, 2004, in Hennepin County.”  Accordingly, we conclude that the state did not constructively amend the complaint during trial.        

            Affirmed.