State of Minnesota, Respondent, vs. Jeffrey Louis Andrews, Appellant.

State of Minnesota, Respondent, vs. Jeffrey Louis Andrews, Appellant. A05-1564, Court of Appeals Unpublished, October 31, 2006.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-1564

 

 

State of Minnesota,
Respondent,
 
vs.
 
Jeffrey Louis Andrews,
Appellant.

 

Filed October 31, 2006

Affirmed

Peterson, Judge

 

Crow Wing County District Court

File No. K8-04-907

 

Mike Hatch, Attorney General, Tibor M. Gallo, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and

 

Donald F. Ryan, Crow Wing County Attorney, 322 Laurel Street, P.O. Box 314, Brainerd, MN  56401 (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 Kalitowski, Presiding Judge; Randall, Judge; and Peterson, Judge.

U N P U B L I S H E D   O P I N I O N

PETERSON, Judge

            In this appeal from a conviction of and sentence for third-degree assault, appellant Jeffery Louis Andrews argues that the district court erred in (1) instructing the jury on aiding and abetting; and (2) imposing conditions of probation.  We affirm.

FACTS

            At around 2:30 a.m., M.L. woke up when he heard people coming into his house.  M.L. went to investigate and found appellant, who rented a room from M.L., in the kitchen with Richard Schmidthuber and two women.  M.L. confronted them about the noise and ordered them to leave the house.  Appellant asked what M.L. would do if he did not obey the order to leave, and M.L. threatened to call the police. 

            After the group left, M.L. was turning off the lights when he noticed that the lights in the second level of his garage were on.  He turned off the circuit breaker for the garage and was going back to bed when he heard a noise at the back door.  M.L. opened the back door to see who was there and found appellant leaning against the wall.  Appellant asked M.L. why he had cut the power to the garage.  M.L. asked appellant to leave, but appellant came into the house, and an argument erupted into a fist fight.  M.L. yelled to his girlfriend to call 911.  When M.L.'s girlfriend entered the kitchen, she saw appellant on top of M.L., hitting him in the face and upper body.  

            Schmidthuber entered the kitchen and made two comments: "That's the move I was looking for;" and "Hey . . . , you want a piece of me?"  Schmidthuber then pulled appellant off M.L., grabbed M.L., and slammed M.L. face first into the floor and the kitchen wall.  Schmidthuber punched M.L. several times on his back and on the side and back of his head.  Appellant and Schmidthuber then ran from the kitchen.  M.L.'s injuries included a fracture of a very small, paper-thin bone along the middle side of the eye socket.

            Appellant was charged with third-degree assault in violation of Minn. Stat. § 609.223, subd. 1 (2004).  Before closing arguments at trial, the state requested that the district court give the jury instruction in CRIMJIG 4.01 for aiding and abetting.  Over defense counsel's objection, the district court gave the instruction.  The jury found appellant guilty of third-degree assault.

            At sentencing, the district court stayed imposition of sentence, placed appellant on probation for five years, and required appellant to serve 90 days in jail.  As conditions of probation, the district court prohibited appellant from using or possessing alcohol and from entering any establishment where alcohol is sold or served, except for the purposes of employment; required appellant to submit to testing for intoxicants in his system at the request of a peace officer or probation officer; and required appellant to submit to  searches of his person, vehicle, residence, or any other property under his control when requested by a probation agent.  This appeal followed.

D E C I S I O N

1.         District courts have broad discretion in selecting the language in jury instructions.  State v. Baird, 654 N.W.2d 105, 113 (Minn. 2002).  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).  If the jury instructions correctly state the law in language that can be understood by the jury, there is no reversible error.  State v. Peou, 579 N.W.2d 471, 475 (Minn. 1998).

            Appellant argues that the district court erred in giving the jury the aiding-and-abetting instruction "because there was no evidentiary basis for an instruction predicated on the theory that appellant aided and abetted Schmidthuber."  Appellant contends that infliction of substantial bodily harm is an element of third-degree assault and that the aiding-and-abetting instruction allowed the jury to find him guilty of third-degree assault without finding that he actually caused the injury to M.L.  See Minn. Stat.
§ 609.223, subd. 1 (2004) (defining third-degree assault as assaulting another and inflicting substantial bodily harm).

            Quoting State v. Russell, appellant argues that in order to impose liability for aiding and abetting, the burden is on the state to prove that appellant encouraged Schmidthuber "to take a course of action which he might not otherwise have taken," and that there is no evidence that he assisted or encouraged Schmidthuber to assault M.L. or that he had a legal duty to somehow stop Schmidthuber's assault.  503 N.W.2d 110, 114 (Minn. 1993) (quotation omitted).  But appellant's limited quotation from Russell does not fully explain liability for aiding and abetting.  The language that appellant quotes appears in the following, more complete, explanation of criminal liability for aiding and abetting:

To establish the criminal liability of an accomplice, the evidence must demonstrate that the accomplice intentionally aided, advised, hired, counseled or conspired with or otherwise procured the other to commit the crime.  Minn. Stat. § 609.05, subd. 1 (1992).  Presence, companionship, and conduct before and after an offense are circumstances from which a person's criminal intent may be inferred.  State v. Ulvinen, 313 N.W.2d 425, 428 (Minn. 1981) (citing State v. Parker, 282 Minn. 343, 164 N.W.2d 633 (1969)).  Inaction, knowledge, or passive acquiescence, however, do not rise to the level of conduct encompassed by Minn. Stat. § 609.05, subd. 1.  Id.   To impose liability under the statute, the state must show that the defendant encouraged the principal to "take a course of action which he might not otherwise have taken."  Id.  The state meets its burden, however, by showing "‘some knowing role in the commission of the crime' by a defendant who ‘takes no steps to thwart its completion.'"  State v. Merrill, 428 N.W.2d 361, 367 (Minn. 1988) (quoting State v. Jones, 347 N.W.2d 796, 801 (Minn. 1984)).

 

Id.  The language from State v. Merrill quoted in Russell appears in the following explanation of the aiding-and-abetting statute:

            The statute[1] imposes liability on an accomplice for the crimes of another in two distinct ways.  Under subdivision 1, liability is imposed for actions which affect the principal, encouraging him to take a course of action which he might not otherwise have taken.  A conviction for aiding and abetting requires only some knowing role in the commission of the crime by a defendant who takes no steps to thwart its completion.

 

            In addition, a person may also be held liable for the crimes of an accomplice under subdivision 2 if the accomplice's crime was committed in furtherance of and was a reasonably foreseeable consequence of the intended crime.

 

 Merrill, 428 N.W.2d at 367 (quotations omitted).

            The district court gave the following aiding-and-abetting instruction:

            The defendant is guilty of a crime committed by another person when the defendant has intentionally aided the other person in committing the crime, or has intentionally advised, hired, counseled, conspired with or otherwise procured the other person to commit the crime.

 

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

 

            The defendant is guilty of a crime, however, only if the other person commits a crime.  The defendant is not liable criminally for aiding, advising, hiring, counseling, conspiring with, or otherwise procuring the commission of a crime unless some crime is actually committed.

 

            If the defendant aided, advised, hired, counseled with, or conspired with another, or otherwise procured the commission of a crime by another person, and the crime was committed, the defendant is guilty of the crime.  You are not to concern yourselves with what action, if any, was taken against the other person. 

 

            This instruction correctly stated the law in language that the jurors could understand, and there was evidence that appellant and Schmidthuber arrived together at M.L.'s home; M.L. told them both to leave; they left and went to M.L.'s garage; when M.L. turned off the electrical power in the garage, they returned to M.L.'s home; appellant initiated a physical altercation with M.L. in his kitchen, and Schmidthuber joined the altercation after saying, "That's the move I was looking for"; and when the altercation ended, appellant and Schmidthuber left together.  This evidence was sufficient to establish appellant's criminal liability for aiding and abetting either because he played some knowing role in Schmidthuber's assault of M.L. or because Schmidthuber's assault of M.L. was committed in furtherance of and was a reasonably foreseeable consequence of appellant's assault of M.L.  The district court did not err in giving the aiding-and-abetting instruction.

2.         Appellant argues that the district court erred when, as conditions of probation, it prohibited appellant from using or possessing alcohol and from entering any establishment where alcohol is sold or served, except for the purposes of employment, and required appellant to submit to testing for intoxicants in his system and to searches of his person, vehicle, residence, or any other property under his control.  Appellant contends that because the district court did not have before it evidence to support a finding that he is prone to abuse alcohol or that alcohol played any part in the commission of the offense, the alcohol ban was an abuse of discretion, and because the searches are not reasonably related to the goals of probation, the condition allowing the searches must be vacated.

            But appellant did not object to these conditions at the sentencing hearing.  This court generally will not decide issues that were not before the district court.  See Blondheim v. State, 573 N.W.2d 368, 369 (Minn. 1998) (finding waiver when there was no objection to imposition of fine at sentencing); Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996) (stating that issues not raised in the district court will generally not be considered on appeal).  Consequently, because appellant did not object to the probation conditions at sentencing, he has waived any right to raise these issues on appeal. 

            We may deviate from the rule requiring that an issue be raised in the district court before it will be considered on appeal when the interests of justice require consideration of the issue and doing so would not unfairly surprise a party to the appeal.  Roby, 547 N.W.2d at 357.  But we decline to deviate from the rule here because when appellant did not object to the probation conditions in the district court, respondent had no reason to present evidence to the district court to address the objections.  Consequently, our consideration of appellant's arguments that there is not evidence to support the conditions and that the conditions are not reasonably related to the goals of probation would be based on a record that was not fully developed to address these issues, which would be an unfair surprise to respondent.

            Affirmed.

[1] Minn. Stat. § 609.05, subds. 1-2, have not been changed since the supreme court released its opinion in Merrill.