State of Minnesota, Respondent, vs. Richard Earl Magee, Appellant.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C1-03-186

 

State of Minnesota,

Respondent,

 

vs.

 

Richard Earl Magee,

Appellant.

 

Filed November 25, 2003

Reversed and Remanded

Poritsky, Judge*

 

Hennepin County District Court

File No. 02050194

 

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

Jay M. Heffern, Minneapolis City Attorney, Lisa M. Godon, Assistant City Attorney, 300 Metropolitan Centre, 333 South Seventh Street, Minneapolis, MN 55402 (for respondent)

 

Leonardo Castro, Hennepin County Public Defender, Barbara S. Isaacman, Assistant Public Defender, 317 Second Avenue South, Suite 200, Minneapolis, MN 55401 (for appellant)

 

            Considered and decided by Schumacher, Presiding Judge; Lansing, Judge; and Poritsky, Judge.

 

U N P U B L I S H E D   O P I N I O N

PORITSKY, Judge

            Appellant Richard Magee appeals his convictions of fifth degree assault and disorderly conduct.  Because we find that the district court erred in its instructions with respect to both charges, we reverse and remand for a new trial. FACTS

            On June 24, 2002, Timothy Utz, the homeowner of 4003 Fremont Avenue North, confronted Donald Williams about automobile horn honking earlier that day.  Williams is the 14-year-old son of Angelina Brown, the homeowner of 4007 Fremont Avenue North.  The confrontation was one of a series of disagreements between Utz and his neighbors at 4007 Fremont Avenue North arising out of horn honking and dog barking.  Shortly after the confrontation, appellant went outside to talk to Utz about the dispute.  Appellant lives with Brown, who is his sister.  Appellant and Utz were in Utz's garage discussing the situation when Brown entered and began raising her voice to Utz.

            Michael Regan, who lives across the alley at 4006 Girard Avenue North, went over to Utz's garage to see what was happening.  When Regan entered the garage, appellant yelled and swore at him.  Appellant pushed Regan a couple of times. Then, Regan testified, he was attacked by appellant, Brown, and Williams.  The police had been called sometime after Brown entered the garage.  Upon arriving at the scene, officers discovered the fight and broke it up.

            Appellant was charged with fifth degree assault and disorderly conduct.  At trial, the jury found appellant guilty of both charges.  On appeal, appellant argues that the district court made inappropriate statements to the jury during voir dire, erred in admitting certain evidence, erred in jury instructions, and erred in not giving additional instructions.  Appellant made no objection to any of these alleged errors at trial and did not request any additional jury instructions.[1]  Appellant also argues that the district court limited the jury's deliberation time, that the cumulative effect of the district court errors warrants reversal, and that the evidence is insufficient to support the verdict. 

D E C I S I O N

Generally, a defendant's failure to either propose or object to instructions before they are given to the jury constitutes a waiver of the right to appeal.  State v. Cross, 577 N.W.2d 721, 726 (Minn. 1998).  But a reviewing court can reverse "if the instructions were misleading or confusing on fundamental points of law such as burden of proof and presumption of innocence."  State v. Butler, 295 N.W.2d 658, 659 (Minn. 1980).  Further, if there is plain error affecting substantial rights, then this court has the discretion to consider unobjected-to errors on appeal so long as the three-prong test for plain error is satisfied.  State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998).  The test requires that (1) there is error; (2) it is plain; and (3) the error affects substantial rights.  Id.  If each prong is satisfied, then the appellate court may consider whether it should address the error to "ensure fairness and the integrity of the judicial proceedings."  Id. (citation omitted).

I.

            Appellant contends that the district court improperly instructed the jury on the reasonable doubt standard.  The district court "is not required to define reasonable doubt, or articulate the standard, with any specific language, so long as, taken as a whole, the instruction correctly conveys the concept."  State v. Smith, 655 N.W.2d 347, 352 (Minn. App. 2003) (citing Victor v. Nebraska, 511 U.S. 1, 5, 114 S. Ct. 1239, 1243 (1994)).  But a reviewing court may reverse if the instructions confused the jury with respect to the burden of proof.  Butler, 295 N.W.2d at 659.

            Although a district court is not required to use the definition of proof beyond a reasonable doubt set out in CRIMJIG 3.03, that definition has been approved by this court.  Smith, 655 N.W.2d at 352; State v. Sap, 408 N.W.2d 638, 641 (Minn. App. 1987).

CRIMJIG 3.03 provides:

Proof beyond a reasonable doubt is such proof as ordinarily prudent men and women would act upon in their most important affairs.  A reasonable doubt is a doubt based upon reason and common sense.  It does not mean a fanciful or capricious doubt, nor does it mean beyond all possibility of doubt.

 

10 Minnesota Practice, CRIMJIG 3.03 (1999).  The first sentence of CRIMJIG 3.03 defines proof beyond a reasonable doubt, that is, the quantum of proof necessary to overcome a reasonable doubt.  The second and third sentences of CRIMJIG 3.03 define reasonable doubt.

            Here, the district court defined reasonable doubt in this manner:

The term reasonable doubt simply means a doubt based on reason and common sense.  It is sometimes defined by saying you entertain a reasonable doubt about a proposition that when your state of mind is such that if that proposition involved a matter of greatest importance to your own affairs or of the most serious nature to yourself, you wouldn't hesitate to act and that you are satisfied beyond a reasonable doubt when your state of mind is such that on a matter of highest and greatest concern and importance to yourself, you would act without hesitation.

It's not necessary that you be convinced beyond all possible or imaginary doubt because everything relating to human affairs is open to some possible or imaginable doubt. 

 

The first sentence of the district court's instruction correctly defined reasonable doubt, and the final sentence, while not following CRIMJIG 3.03 verbatim, is substantially correct in further defining the phrase.  But the second sentence, which purports to be a definition of reasonable doubt, actually refers to the quantum of proofnecessary to overcome a reasonable doubt.

It [reasonable doubt] is sometimes defined by saying that you entertain a reasonable doubt about a proposition that when your state of mind is such that if that proposition involved a matter of greatest importance to your own affairs or the most serious nature to yourself, you wouldn't hesitate to act . . .

 

(Emphasis added.)  The court then goes on to use substantively the same language ¾ acting without hesitation (which, we note, is not included in CRIMJIG 3.03) ¾ to define the quantum of proof necessary to overcome a reasonable doubt:  "and that you are satisfied beyond a reasonable doubt when your state of mind is such that on a matter of highest and greatest concern and importance to yourself, you would act without hesitation."

             Appellant argues that the effect of this instruction was to confuse, rather than instruct, the jury.  We agree.  The first portion of the sentence confuses reasonable doubt with proof beyond a reasonable doubt.  It also describes a situation in which an individual would "entertain a reasonable doubt," while the second portion of the sentence uses substantively the same language to describe a situation where an individual is "satisfied beyond a reasonable doubt."  Because the instruction confuses reasonable doubt with proof beyond a reasonable doubt, it most likely confused the jury with respect to the burden of proof.  We conclude, therefore, that the definition of reasonable doubt given by the trial court, which applied to both the fifth degree assault and the disorderly conduct charge, was confusing to a point where appellant was denied due process.  We reverse the convictions on both charges. 

II.

Appellant also contends that the district court erred in instructing the jury on an offense with which appellant was not charged.  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).  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).  Moreover, "the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which [the accused] is charged."  In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 1072 (1970) (emphasis added).

  Appellant was charged by written complaint with assaulting Regan, in violation of Minn. Stat. § 609.224, subd. 1(1) (2002).  That statute reads: "[w]hoever does any of the following commits an assault and is guilty of a misdemeanor: (1) commits an act with intent to cause fear in another of immediate bodily harm or death . . ."  Id.  The complaint tracked the language of the statute and further alleged that Regan was the victim.  Thus, to convict, the jury had to find that appellant acted with the intent to cause in Regan fear of immediate bodily harm or death.  See CRIMJIG 13.30.  The state did not need to prove that appellant intended to inflict bodily harm or death, but only that appellant intended to cause fear in the victim.  Id.  

But at the start of the trial, the district court instructed the jury as follows: "Whoever does any of the following commits an assault and there's two parts to it:  One, commits an act with intent to cause fear in another of immediate bodily harm or death. . . .  Or, two, intentionally inflicts or attempts to inflict bodily harm upon another."  Similarly, at the close of the evidence, the district court instructed the jury that "[w]hoever does any of the following, commits an assault and is guilty of a misdemeanor:  One, commits an act with intent to cause fear in another of immediate bodily harm or death.  Or two, intentionally inflicts or attempts to inflict bodily harm upon another."  The district court then reiterated that either the intent to cause fear or intentionally inflicting harm is an element of the charged offense. 

Thus, the instructions that the court gave to the jury contained the elements of fifth degree assault not only in violation of Minn. Stat. § 609.224, subd. 1(1) but also in violation of subdivision 1(2) (intentionally inflicting or attempting to inflict bodily harm).  But appellant was only charged with a violation of subdivision 1(1).  From the evidence in the record, we conclude that the jury's verdict could well have resulted from a finding that appellant committed a violation of subdivision 1(2), and not from a finding that he committed the crime with which he was charged.  Moreover, we are troubled by the fact that appellant was charged with assaulting only Regan, but the court never read the name of the victim to the jury.  From the testimony in the case and the court's instructions, it is possible that the jury could have found that appellant intended to inflict bodily harm upon, or cause fear of immediate bodily harm in, any of the other persons in the garage.  Such a finding would result in a conviction for a crime with which appellant was not charged.

The state argues that the error was harmless, because if the jury found the elements of assault by inflicting bodily harm, it must by necessity have found the elements of assault by committing an act with intent to cause fear.  That is, the state argues, that one cannot intentionally inflict bodily harm without intending to cause fear in another of immediate bodily harm.  We reject this argument.  Appellant testified that he was afraid of the other persons in the garage and that all his actions were pursuant to an attempt to leave.  On this record, it is entirely possible that he intentionally inflicted bodily harm on the others in self-defense, without having any intent to cause fear in anyone.  Thus, we conclude that the court's instructions concerning the elements of fifth degree assault could have allowed the jury to convict appellant of assault by inflicting bodily harm, a crime with which he was not charged, in violation of this right to due process.  Because the erroneous instruction was plain error and affected appellant's substantial rights, we reverse the conviction of fifth degree assault .

Because we find that the court's erroneous instructions warrant reversal of both charges, we do not reach appellant's other arguments. 

Reversed and remanded for a new trial.

 

*           Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.

 

[1] Although appellant did not object to the court's instructions or ask for additional instructions, the record does not show that he was given the opportunity to do so.  There is no showing in the record that the court disclosed its preliminary instructions to the parties, as required by Minn. R. Crim. P. 26.03, subd. 4, or that, as required by rule 26.03, subd. 18(3), the court gave the parties an opportunity out of the hearing of the jury to make objection to the court's instructions at the close of the evidence.  Had the court complied with those rules, it may well have obviated the errors that occurred in connection with the instructions on reasonable doubt and the elements of offense.  Moreover, it would have given appellant the opportunity to ask for, and perhaps receive, an instruction on self-defense.