State of Minnesota v. Kim Ronnie Blatcher ( 2016 )

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA
IN COURT OF APPEALS
A16-0069
State of Minnesota,
Respondent,
vs.
Kim Ronnie Blatcher,
Appellant.
Filed December 27, 2016
Affirmed
Reyes, Judge
Hennepin County District Court
File No. 27-CR-15-6540
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Michael O. Freeman, Hennepin County Attorney, Jean Burdorf, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Rachel F. Bond, Assistant Public
Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Peterson, Presiding Judge; Larkin, Judge; and Reyes,
Judge.
UNPUBLISHED OPINION
REYES, Judge
On appeal from his conviction of aiding and abetting first-degree aggravated
robbery, appellant argues that the district court committed reversible error in instructing
the jury and abused its discretion by denying his motion for a downward dispositional
departure. We affirm.
FACTS
One night in February 2015, appellant Kim Ronnie Blatcher attended a party at
J.P.’s house. Appellant was upset with M.L. because M.L. had allegedly touched
appellant’s girlfriend inappropriately. J.P. contacted M.L. through Facebook, purportedly
inviting him to the party to purchase a gun, but J.P.’s actual intent in inviting M.L. was to
rob him. Appellant was aware of J.P.’s plan.
When M.L. arrived at the party, appellant and J.P. confronted him. Appellant
began hitting M.L, and J.P. then started kicking M.L. After M.L. fell to the ground, J.P.
and appellant took some of M.L.’s belongings, including cash from his wallet. As a
result of the assault, two of M.L.’s teeth were chipped and he had abrasions on his back,
lacerations inside his mouth, and a concussion.
Appellant was charged with one count of aiding and abetting first-degree
aggravated robbery and one count of aiding and abetting third-degree assault. A jury trial
was held in September 2015, and the jury found appellant guilty of both counts.
Appellant moved for a downward dispositional or durational departure. The district court
denied the motion, entered judgment of conviction on the aggravated robbery charge, and
sentenced appellant to a presumptive sentence of 48 months in prison. This appeal
follows.
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DECISION
I. The district court did not err in instructing the jury.
Appellant argues that the district court committed reversible error in instructing
the jury. We disagree.
“[District] courts are permitted considerable freedom when determining how to
instruct the jury as long as the jury instruction is not confusing or misleading on
fundamental points of the law.” State v. Gutierrez, 667 N.W.2d 426, 434 (Minn. 2003).
In reviewing jury instructions for error, appellate courts “review the instructions in their
entirety to determine whether they fairly and adequately explain the law. An instruction
that materially misstates the law is erroneous.” State v. Gatson, 801 N.W.2d 134, 147
(Minn. 2011) (citation omitted).
A. Omission of instructions from final oral charge to the jury
Appellant first argues that the district court erred in its final oral charge to the jury
by omitting jury instructions on (1) accomplice testimony; (2) evaluating direct and
circumstantial evidence; (3) evaluating witness testimony and credibility; and (4) the
duties of judges and juries. The accomplice-testimony instruction was read to the jury
just before J.P. testified. The other three omitted jury instructions were read to the jury as
part of the district court’s preliminary instructions. The record also suggests that these
three instructions were provided in written form to the jury for use during deliberation.
Because appellant did not object to the timing or manner of the district court’s jury
instructions at trial, we review for plain error. State v. Milton, 821 N.W.2d 789, 805
(Minn. 2012). In reviewing for plain error, we apply a three-part test, requiring that the
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challenging party show (1) an error, (2) that is plain, and (3) that affects the defendant’s
substantial rights. Id. An error is plain if it “contravenes case law, a rule, or a standard
of conduct.” State v. Ramey, 721 N.W.2d 294, 302 (Minn. 2006). If the three prongs of
the plain-error test are met, a reviewing court “may correct the error only if it seriously
affects the fairness, integrity, or public reputation of judicial proceedings.” State v.
Taylor, 869 N.W.2d 1, 15 (Minn. 2015) (alteration omitted) (quotations omitted).
A district court may give preliminary instructions “[a]fter the jury has been
impaneled and sworn, and before the opening statements.” Minn. R. Crim. P. 26.03,
subd. 4. With respect to the final instructions, “[t]he [district] court may instruct the jury
before or after [closing] argument. Preliminary instructions need not be repeated.”
Minn. R. Crim. P. 26.03, subd. 19(5).
Appellant relies on State v. Peterson, 673 N.W.2d 482 (Minn. 2004), in arguing
that the district court erred by omitting the four enumerated instructions from its final oral
charge to the jury. In Peterson, the district court gave preliminary instructions on the
presumption of innocence and the definition of proof beyond a reasonable doubt but did
not reread them in the final oral charge to the jury, although written instructions were
provided to the jury. 673 N.W.2d at 484–85. The supreme court held that their omission
constituted a constitutional defect, requiring automatic reversal of Peterson’s convictions.
Id. at 487. The supreme court reasoned that “[t]he presumption of innocence is a
fundamental component of a fair trial under our criminal justice system” and that “[t]he
reasonable doubt standard of proof provides concrete substance for the presumption of
innocence.” Id. at 486 (quotation omitted).
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Appellant reads Peterson broadly to require that all jury instructions, or at least the
four “core” jury instructions at issue here, need to be included in the final oral charge to
the jury. But, the supreme court only held in Peterson that a final oral charge omitting
instructions on the presumption of innocence and the definition of proof beyond a
reasonable doubt denies a defendant due process of law. Id. Moreover, this court has
previously held that adequate preliminary instructions on circumstantial evidence and
witness credibility “need not be repeated in final instructions.” State v. Duemke, 352
N.W.2d 427, 432 (Minn. App. 1984).
Appellant does not cite any caselaw, rule, or standard of conduct requiring the
district court to reread instructions already given on accomplice testimony, direct and
circumstantial evidence, witness testimony and credibility, and the duties of the judge and
the jury. We conclude that appellant has not shown that the district court’s omission of
the four instructions in the final oral charge to the jury was error. Because appellant
cannot meet the first prong of the plain-error test, we need not consider the other prongs.
State v. Brown, 815 N.W.2d 609, 620 (Minn. 2012).
B. Response to jury questions
Appellant next argues that the district court abused its discretion in providing
additional instructions to the jury in response to two questions from the jury. In response
to a question from the jury, “[t]he [district] court has the discretion to decide whether to
amplify previous instructions, reread previous instructions, or give no response at all.”
State v. Laine, 715 N.W.2d 425, 434 (Minn. 2006) (quotation omitted). Additional
instructions may be appropriate when “the interests of justice require that the jury have a
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full understanding of the case and the rules of law applicable to the facts under
deliberation.” State v. Murphy, 380 N.W.2d 766, 772 (Minn. 1986) (quotation omitted).
We review a district court’s decision to give additional instructions in response to a jury
question for an abuse of discretion. See Laine, 715 N.W.2d at 434.
1. First jury question
The first question the jury asked was “[d]oes benefitting from a crime (aggravated
robbery) mean an individual aided and abetted a crime?” The district court provided the
following answer:
“Benefitting from a crime” by itself does not constitute
aiding and abetting. There must be proof beyond a reasonable
doubt that the defendant:
(1) Knew that th[e] crime would be or was being
committed.
(2) That the defendant, by his conduct or presence,
intended to further the commission of the crime.
(3) That the defendant’s conduct or presence did
further the commission of the crime.
However, “benefitting from a crime” may be viewed as
evidence on any of these three elements of aiding and abetting.
Whether it is sufficient is entirely up to you.
Appellant objected to the last two sentences of the instruction.
Appellant argues that they are “confusingly contradictory,” first stating that
benefitting from a crime itself does not constitute aiding and abetting, but then stating
that the jury could determine if benefitting from a crime is sufficient. Appellant also
argues that the instruction is an inaccurate statement of the law because it instructed the
jury that it could determine whether benefitting from a crime itself was sufficient to prove
aiding and abetting.
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Both of appellant’s arguments stem from his misreading of the district court’s
instruction. The instruction must be read as a whole. State v. Matthews, 779 N.W.2d
543, 549 (Minn. 2010). Read in context, the instruction states that benefitting from a
crime by itself does not constitute aiding and abetting, but that benefitting from a crime
may constitute sufficient evidence on the individual elements of aiding and abetting.
Furthermore, the instruction states that the jury may determine whether benefitting from a
crime, alone or in combination with other circumstances, is sufficient to satisfy an
individual element, which is a correct statement of the law. See State v. Crow, 730
N.W.2d 272, 280 (Minn. 2007).
2. Second jury question
The second question the jury asked was “[w]hat is the definition of ‘intentionally’
and is there any requirement of premeditation?” The district court instructed the jury as
to the definition of “intentionally” and stated that “[t]here is no requirement that
premeditation be proved in this case.” The remainder of the instruction reads as follows:
The term “premeditation” as used here means that the
defendant considered, planned, prepared for, or determined to
commit the act before he committed it. It is not necessary that
premeditation exist for a specific length of time. A
premeditated decision to act may be reached in a short period
of time. An unconsidered or rash impulse is not premeditated.
By the way, both intent and premeditation, being
processes of the mind, [are] wholly subjective and hence not
always susceptible to proof by direct evidence. It may be
inferred from all the circumstances surrounding the event—in
other words, it may be proved by circumstantial evidence.
At trial, appellant only objected to the final paragraph of the instruction, but on appeal he
also challenges the portion of the preceding paragraph cited above.
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Appellant does not argue that the instruction misstated the law, but argues that the
objected-to portion of the instruction was “confusing, and introduced, defined, and
discussed methods of proof of legal concepts that were completely irrelevant to the case.”
We are not persuaded. While the jury did not need to know the definition of
premeditation or the methods of proof for premeditation, the jury’s question reflected its
confusion regarding the concepts of intent and premeditation and what needed to be
proved in the case. The supplemental instruction, which defined the two concepts,
clarified that there was no requirement of premeditation and stated that both intent and
premeditation may be proved by circumstantial evidence. The instruction did not mislead
the jury on a fundamental point of law.
In conclusion, because the district court’s supplemental instructions in response to
the jury’s questions correctly stated the law and were not misleading or confusing on a
fundamental point of law, we conclude that the district court did not abuse its discretion
by providing the instructions.
II. The district court did not abuse its discretion by denying appellant’s motion
for a downward dispositional departure.
Appellant argues that the district court abused its discretion by denying his motion
for a downward dispositional departure from the sentencing guidelines. We disagree.
Appellate courts “afford the [district] court great discretion in the imposition of
sentences and reverse sentencing decisions only for an abuse of discretion.” State v.
Soto, 855 N.W.2d 303, 307–08 (Minn. 2014) (quotation omitted). A district court must
impose the presumptive sentence under the sentencing guidelines unless there are
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“substantial[] and compelling circumstances” that warrant departure. Minn. Sent.
Guidelines 2.D.1 (2014). “Substantial and compelling circumstances are those that make
the case atypical.” State v. Peter, 825 N.W.2d 126, 129 (Minn. App. 2012), review
denied (Minn. Feb. 27, 2013). Only in a “rare” case will an appellate court reverse a
district court’s refusal to depart. State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981).
In denying appellant’s motion, the district court explained its reasoning as follows:
I think some of the arguments raised by [defense counsel] are
good, but in order to reach them, I have to believe you.
However, the jury chose not to, so I don’t think I have the
luxury to do that. And I heard the testimony by the witnesses
to the contrary as well. So I would say that, given the factors
[the prosecutor] referred to, in some instances they could have
at least led to an argument for an upward departure.
The district court sentenced appellant to 48 months in prison, the middle of the
presumptive range of sentences for defendants with appellant’s criminal history.
Appellant argues that the district court abused its discretion in denying his motion
for a downward dispositional departure because he is particularly amenable to probation.
A district court may depart dispositionally “if the defendant is particularly amenable to
probation or if offense-related mitigating circumstances are present.” State v. Donnay,
600 N.W.2d 471, 473-74 (Minn. App. 1999) (quotation omitted), review denied (Minn.
Nov. 17, 1999). A number of factors, “including the defendant’s age, his prior record, his
remorse, his cooperation, his attitude while in court, and the support of friends and/or
family,” are relevant to the determination of whether an individual is particularly
amenable to probation. State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982).
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In support of his motion for a downward dispositional departure, Blatcher argued
that he lacked substantial capacity for judgment on the day of the assault; he accepted
responsibility for hitting M.L.; he showed remorse; and he was respectful throughout the
court proceedings. However, a district court is not required to depart dispositionally,
even if the defendant is particularly amenable to probation. State v. Olson, 765 N.W.2d
662, 664–65 (Minn. App. 2009). And, there is evidence indicating that appellant planned
the attack with J.P., instigated the assault on M.L., and prevented others from aiding M.L.
Moreover, while the district court did not discuss the Trog factors cited by appellant,
there is no requirement that the district court explain its reasons for imposing a
presumptive sentence. State v. Van Ruler, 378 N.W.2d 77, 80 (Minn. App. 1985).
Appellant argues that the record shows that the district court failed to consider the
circumstances for and against departure because it apparently believed “that the jury’s
verdict and resolution of the evidence as to guilt precluded any exercise of its discretion
at sentencing.” “If the district court has discretion to depart from a presumptive sentence,
it must exercise that discretion by deliberately considering circumstances for and against
departure.” State v. Pegel, 795 N.W.2d 251, 253 (Minn. App. 2011) (quotation omitted).
Appellant misinterprets the district court’s comments. Some of the factors cited
by appellant in his motion were inconsistent with the jury’s determination that he was
guilty of aiding and abetting aggravated robbery. Appellant’s argument that he lacked
substantial capacity for judgment when confronting M.L. is inconsistent with the
evidence presented to the jury that appellant preplanned the robbery with J.P.,
participated in the robbery, and shared in the proceeds of the robbery. Similarly,
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appellant’s arguments that he accepted responsibility and showed remorse are undercut
by the fact that he only admitted to punching M.L. and continued to deny his involvement
in the robbery. To the extent that appellant’s arguments for a departure are inconsistent
with the jury’s determination of litigated issues, the district court did not err in refusing to
consider those circumstances in deciding whether to grant appellant’s motion. Moreover,
the district court’s comment that the factors referred to by the prosecutor could support an
argument for an upward departure demonstrates its recognition that a decision regarding a
departure motion cannot be made by merely deferring to the jury verdict. We conclude
that this is not the “rare” case where the district court abused its discretion by denying
appellant’s motion for a downward dispositional departure.
Affirmed.
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