Opinion
No. C3-99-569.
Filed February 1, 2000.
Appeal from the District Court, Nicollet County, File No. K598462.
Mike Hatch, Attorney General, John B. Galus, Assistant Attorney General, and Michael K. Riley, Sr., Nicollet County Attorney, (for respondent)
John M. Stuart, State Public Defender, Rochelle R. Winn, Assistant State Public Defender, (for appellant)
Considered and decided by Amundson, Presiding Judge, Kalitowski, Judge, and Harten, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1998).
UNPUBLISHED OPINION
Appellant Jerry Joseph Duwenhoegger challenges his convictions for burglary, interference with a 911 call, and trespass. He argues that the jury instructions on the interference with a 911 call deprived him of his right to a unanimous verdict by allowing the jury to convict based on alternate theories of guilt. We affirm.
DECISION
Jury instructions are reviewed as a whole to determine whether they fairly and adequately explained the law of the case. State v. Flores, 418 N.W.2d 150, 155 (Minn. 1988). Appellant failed to object to the instructions at trial. Generally, this forfeits the right to appeal on that error. State v. Hart, 477 N.W.2d 732, 738 (Minn.App. 1991), review denied (Minn. Jan. 16, 1992). But this court may consider the issue if it is "plain error affecting substantial rights." Id. (quotation omitted). The reviewing court determines whether there was plain error and whether it affected substantial rights. State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998) (citing Johnson v. United States, 520 U.S. 461, 467, 117 S.Ct. 1544, 1549 (1997)). An error affects substantial rights if it was prejudicial and affected the outcome of the case. Griller, 583 N.W.2d at 741. An error is prejudicial if there is a reasonable likelihood that giving the instruction in question would have had a significant effect on the jury's verdict. Id. If the test for plain error is satisfied, the reviewing court "then assesses whether it should address the error to ensure fairness and the integrity of the judicial proceedings." Id. at 740 (citation omitted).
This case arises from appellant's entry into the home of his former girlfriend, N.S. Appellant entered her home and was told to leave by the police. He returned to her home shortly thereafter, entering by removing N.S.'s window screen. Each of N.S.'s two adult sons, A.H. and J.S., tried to call 911 but appellant took actions to prevent them from doing so.
Appellant argues that the jury instructions deprived him of his right to a unanimous verdict on the conviction for interference with a 911 call because the jury could have found he interfered with either the call made by A.H. or the call made by J.S. We disagree. As a constitutional matter, jurors need not always agree on the alternative ways a crime can be committed. Hart, 477 N.W.2d at 739 (holding that a new trial was not warranted where the jurors could have found defendant guilty of criminal sexual conduct either because he caused personal injury or because of coercion). If the defendant would be guilty under any of the alternative theories, it is sufficient if the jurors unanimously agree on their ultimate conclusion that the defendant was guilty of the crime charged. State v. Begbie, 415 N.W.2d 103, 106 (Minn.App. 1987) (holding that it was sufficient that jurors unanimously agreed on the conclusion that the defendant was guilty of making terroristic threats even though the jury could have found that the defendant intended to terrorize either the husband or the wife or both), review denied (Minn. Jan. 20, 1988).
More importantly, under the facts here appellant's substantial rights were not prejudiced. Appellant argues the jury should have been explicitly instructed that it must unanimously agree regarding which victim's 911 call was affected. But there is no indication that such instructions would have had a significant effect on the jury's verdict considering the evidence in this case. See State v. Berrisford, 361 N.W.2d 846, 851 (Minn. 1985) (affirming instructions that stated three different methods by which the jury could find appellant guilty where there was "overwhelming evidence" supporting a particular theory); Begbie, 415 N.W.2d at 106 (stating there was sufficient evidence for the jury to find the defendant threatened both victims).
Here, strong evidence supports both theories of guilt. A.H. testified that appellant pushed his hand down back on the handset when he tried to call 911. J.S. testified that appellant unplugged the phone when he tried to call 911, grabbed his wrists, and pried the phone from his hands. Moreover, the three members of the household confirmed the basic testimony of each other, and records of the 911 calls further support the testimony. Thus, we conclude that even if the district court erred in its jury instructions, appellant was not prejudiced because appellant's requested instruction would not have had a significant effect on the jury's verdict.
Finally, appellant raises additional issues in a pro se supplemental brief. We have reviewed appellant's arguments and find them to be without merit.