State of Minnesota, Respondent, vs. Kellie Ruth Sater, Appellant.

 

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (1998).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

CX-99-1539

 

 

State of Minnesota,

Respondent,

 

vs.

 

Kellie Ruth Sater,

Appellant.

 

 

Filed June 20, 2000

Affirmed Harten, Judge

 

 

Itasca County District Court

File No. K9-97-2194

 

Mike Hatch, Attorney General, James B. Early, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and

 

John J. Muhar, Itasca County Attorney, 123 Fourth Street Northeast, Grand Rapids, MN 55744 (for respondent)

 

Bradford W. Colbert, Assistant State Public Defender, 875 Summit Avenue, Room 254, St. Paul, MN 55105 (for appellant)

 

            Considered and decided by Harten, Presiding Judge, Schumacher, Judge, and Shumaker, Judge.

U N P U B L I S H E D   O P I N I O N

HARTEN,  Judge

 

            A jury convicted appellant of second-degree intentional murder, second-degree felony murder, and second-degree felony murder for the benefit of a gang.  Appellant claims that the district court erred in instructing the jury by including the term, "accomplice," misstating the law on intent for the first charge, omitting instruction on one element of the underlying felony, and omitting instruction on the state's burden of proof.  Because the jury instructions present neither plain error nor failure to explain the law clearly and adequately, we affirm.

FACTS

             Steve Schouenborg, 40, Bradley Yost, 25, Amy Cooper, 22, and appellant Kellie Sater, 17, all members of the Grand Rapids chapter of the Gangster Disciples, suspected another member, William Booth, 18, of being a police informant.  Appellant drove Schouenborg, Yost, Cooper, and Booth out to an abandoned dump, where Schouenborg shot Booth in the back at close range and Yost stabbed him in the back of the neck, partially severing his brain stem.  As the group left the site, they heard Booth moan, realized he was not yet dead, and returned to him.  Appellant, taking the knife from Yost, stabbed Booth in the left side of the neck.  Expert testimony established that without medical attention, the wounds inflicted by Schouenborg and appellant would have caused Booth's death, and that the wound inflicted by Yost would have caused his death in any event.

            By the time of appellant's trial, Yost and Cooper had pleaded guilty and agreed to testify about the murder.  Both testified that appellant stabbed Booth in the neck; four other witnesses testified that appellant had told them she stabbed Booth in the neck.  Appellant testified that she had been present but had not participated in Booth's murder.

Apparently disbelieving appellant, the jury found her guilty of intentional second-degree murder, second-degree felony murder, and second-degree felony murder for the benefit of a gang, all as an accomplice.  She was sentenced to 306 months, the presumptive sentence for intentional second-degree murder.  Appellant now challenges her conviction on the ground that errors in the jury instructions deprived her of a fair trial.  Specifically, she challenges the district court's use of the term "accomplice" and its instruction on the intent element of the crime of intentional second-degree murder.  She also alleges that the district court failed to instruct on the definition of assault and on the state's burden of proof.

D E C I S I O N

 

Standard of Review

Trial courts are allowed "considerable latitude" in the selection of language for the jury instructions.  State v. Gray, 456 N.W.2d 251, 258 (Minn. 1990) (quoting Alholm v. Wilt, 394 N.W.2d 488, 490 (Minn. 1986)).  Jury instructions must be viewed in their entirety to determine whether they fairly and adequately explain the applicable law.  State v. Flores, 418 N.W.2d 150, 155 (Minn. 1988).

1.         The Use of "Accomplice"

            The jury was instructed that:

The elements of intentional murder in the second degree as an accomplice are:  First, the death of William Booth must be proven.  Second, the defendant or an accomplice as defined in these instructions caused the death of William Booth.  Third, the defendant acted with the intent to kill William Booth, or an accomplice as defined in these instructions acted with the intent to kill William Booth, and such acts and intent were reasonably foreseeable to the defendant.

           

In order to find that a person had an intent to kill, you must find that the person acted with the purpose of causing death or believed that the act would have that result.

           

Intent being a process of the mind is not always susceptible to proof by direct evidence, but may be inferred from all of the circumstances surrounding the event.

           

In order to have an intent to kill, the person must have acted with the purpose of causing death or the person must have believed that the act would have that result.

           

Fourth and last, the defendant's act took place on or about October 20, 1997 in Itasca County.

           

A defendant is guilty as an accomplice if a crime is committed by another person when that defendant has intentionally aided the other person in committing it, or has intentionally advised, hired, counseled, conspired with or otherwise procured the other person to commit it.

 

If the defendant intentionally aided another person in committing a crime or intentionally advised, hired, counseled, conspired with or otherwise procured the other person to commit it, the defendant is also guilty of any other crime which that person commits while trying to commit the intended crime if that other crime was reasonably foreseeable as a probable consequence of trying to commit the intended crime.

 

Trial Transcript at 2954-56.

Respondent contends at the threshold that appellant never challenged the "as an accomplice" language of the jury instructions and has therefore waived her right to challenge it on appeal.  A reading of the transcript shows that this is correct; appellant did challenge this language on the verdict form, but not in the jury instructions. Therefore, unless the addition of this language rises to the "plain error" standard, appellant may not challenge it on appeal.  Minn. R. Crim. P. 31.02; Peterson v. State, 282 N.W.2d 878, 881 (Minn. 1979).  To come within the scope of this court's review, an unobjected-to jury instruction must contain error, the error must be plain, and the error must affect substantial rights.  State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998). 

Appellant claims there is no such crime as intentional murder in the second degree as an accomplice because Minnesota does not distinguish between a principal and an accomplice, but rather provides that whoever "aids, advises, hires, counsels or conspires with another" to commit a crime is guilty of that crime as a principal, not as an accomplice.  See Minn. Stat. § 609.05, subd. 1 (1998).  If there is error here, it is not plain.  Appellant cites no case supporting either her view that the phrase "as an accomplice" confused or misled the jury or her view that she was convicted of a non-existent crime.

State v. DeVerney, 592 N.W.2d 837 (Minn. 1999), concerned a similar situation: a defendant was charged with first-degree murder and the jury was instructed on aiding and abetting.

            [T]he indictment charged [the defendant] with the substantive offense of first-degree murder.  The additional instruction did not change the substantive offense; it remained first-degree murder.  The only difference between the indictment and the final instruction was that the final instruction included an additional form of aiding and abetting.  We have long held that aiding and abetting is not a separate substantive offense and can be added at any point prior to a verdict or finding.  We have also held that a jury can convict a defendant of aiding and abetting a substantive crime despite the absence of any "aiding and abetting" language in the complaint.

 

Id. at846 (citations omitted).  Similarly, adding "as an accomplice" to the charges against appellant was within the "considerable latitude" accorded to the district court judge in selecting the language for jury instructions.  See Gray, 456 N.W.2d at 258.

Appellant also objects to the phrase "or an accomplice as defined in these instructions" because she contends that the instructions did not define "accomplice" but rather provided two different "interpretations" of "what an accomplice could be."  The first interpretation was the instruction on "aiding and abetting" from Minn. Stat. § 609.05, which does not contain the word "accomplice."  But because the jury heard the statutory language immediately after hearing the four "elements of intentional murder in the second degree as an accomplice," it would have seen the relationship of the statutory language to the crime.

The second interpretation appellant cites is the sentence, "Such person who could be charged for the same crime is called an accomplice."  Trial Transcript at 2956.  The context of this sentence was an instruction on the jury's need to corroborate accomplice testimony.  The use of "accomplice" in an instruction on the need for corroborating testimony would not have been confused with the use of "accomplice" in an instruction on the elements of a crime.

 2.        Law on Intent Element of Intentional Second-Degree Murder

            Appellant argues that the district court misstated the law when it presented as one element of the crime:

[T]he defendant acted with the intent to kill William Booth, or an accomplice as defined in these instructions acted with the intent to kill William Booth, and such acts and intent were reasonably foreseeable to the defendant.

 

Trial Transcript at 2955.  Appellant paraphrases this to argue that the jury was told appellant had the requisite intent if (1) the other three [Schouenborg, Yost, and Cooper] intended to kill Booth, and (2) their acts and intent were reasonably foreseeable to appellant.

 But appellant takes the sentence out of context to make this argument.  Shortly after uttering this sentence, the court instructed the jury:

If the defendant intentionally aided another person in committing a crime or intentionally advised, hired, counseled, conspired with or otherwise procured the other person to commit it, the defendant is also guilty of any other crime which that person commits while trying to commit the intended crime if that other crime was reasonably foreseeable as a probable consequence of trying to commit the intended crime.

 

Trial Transcript at 2956.  This language is in essence Minn. Stat. § 609.05, subd. 2 (1998).[1]  The court's use of the actual statutory language was within its "considerable latitude."   See Gray, 456 N.W.2d at 258.  Jury instructions must be viewed in their entirety.  See Flores, 418 N.W.2d at 155.  Taking two sentences delivered about a minute apart and arguing that the second had no impact on the first results from not viewing jury instructions in their entirety.

 3.        Intent for Felony Murder

            Appellant argues that the district court erroneously instructed the jury on the elements of felony murder.  Because appellant did not raise this issue before the district court, this court may review it only if it rises to the level of "plain error."  Minn. R. Crim. P. 31.02; State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998).[2] 

As part of the instructions, 10 Minnesota Practice, CRIMJIG 11.29 and 11.30 (1999) were read to the jury:

            The defendant has been charged in Count 2 with the crime of second degree felony murder as an accomplice.  The statutes of Minnesota provide that whoever causes the death of a human being without intent to cause the death of any person while committing or attempting to commit a felony offense is guilty of a crime.

 

The elements of second-degree felony murder as an accomplice are:  First, the death of William Booth must be proven.  Second, the defendant or an accomplice, as defined in these instructions, caused the death of William Booth.  Third, defendant as an accomplice, as defined in these instructions, at the time of effecting the death of William Booth, was committing or attempting to commit the felony offenses of assault in the first degree, assault in the second degree, or assault in the third degree.

 

            Assault in the first degree occurs when a person assaults another and inflicts great bodily harm.  Great bodily harm means bodily harm which creates a probability of death or which causes serious permanent disfigurement, or which causes a permanent or protracted loss or impairment of the function of any part of the body, or other serious bodily harm.

 

            Assault in the second degree occurs when a person assaults another and in the assault uses a dangerous weapon.  A dangerous weapon is a firearm, whether loaded or unloaded.  A dangerous weapon is also anything designed as a weapon and capable of producing death or great bodily harm.

 

            Assault in the third degree occurs when a person assaults another and inflicts substantial bodily harm.  Substantial bodily harm means bodily harm which involves a temporary but substantial disfigurement or which causes temporary but substantial loss or impairment of the function of any bodily member or organ, or which causes a fracture of any bodily member.

 

It is not necessary that the State prove that the defendant had the intent to effect the death of William Booth.

 

Trial Transcript at 2957-2959.

A note to CRIMJIG 11.30 reads, "Refer to the appropriate CRIMJIG definition of the [underlying] crime."  Appellant relies on this note to argue that the district court erred in not also instructing the jury with  CRIMJIG 13.01 (1999), AssaultDefined:

            The statutes of Minnesota provide that whoever does an act with intent to cause fear in another person of immediate bodily harm or death, or intentionally inflicts or attempts to inflict bodily harm upon another, is guilty of a crime.

 

Omitting an instruction on the definition of assault when the defendant is charged not with assault but with felony murder to which the underlying felony is assault and the jury has been instructed on the elements of the three degrees of assault, does not rise to the level of "plain error."  

            [A]n instruction that fails to [present all elements of an offense] is not always prejudicial.  Further, the rule requiring objection [at trial] generally prevails even as to errors of this sort. 

 

State v. Wick, 331 N.W.2d 769, 772 (Minn. 1983).  Here, there was no objection, and there is no indication of prejudice.  Whereas the better practice would have been to read CRIMJIG 13.01 to the jury, failure to do so here did not amount to plain error.

4.         Burden of Proof[3]

            Appellant contends that the jury was not sufficiently instructed on the state's burden of proving elements of a crime beyond a "reasonable doubt."  But the district court in its final instructions, just before releasing the jurors, instructed them three times, once in connection with each charge, that they could find appellant guilty if the state proved each element of the crime beyond a reasonable doubt and could not find her guilty if the state had not proved each element of the crime beyond a reasonable doubt.  There was no deficiency in the district court's instruction on burden of proof. 

            We see no error, much less plain error, in the jury instructions.  They fairly and adequately explained the elements of the charged offenses and the law.

            Affirmed.

[1]Appellant admits that the court subsequently provided the correct statutory language, but claims it was "too little, too late."

[2] Appellant concedes that this issue was not raised before the district court, but relies on  State v. Jaster, C3-99-619 (Minn.  App. Jan. 25, 2000), to argue that it is plain error.  As an unpublished decision, Jaster is without precedential value.  Minn. Stat. § 480 A. 08, subd. 3 (1998).  Moreover, Jaster is distinguishable; it concerned a defendant convicted of second-degree assault when the jury had not been instructed on the intent element of assault. 

[3]Again, because appellant did not raise this issue before the district court, this court may review it only if it rises to the level of "plain error."  Minn. R. Crim. P. 31.02; Griller, 583 N.W.2d at 740.