State v. Nord
| Decision Date | 03 May 2021 |
| Docket Number | A20-0890 |
| Parties | State of Minnesota, Respondent, v. Eric Clayton Nord, Appellant. |
| Court | Minnesota Court of Appeals |
This opinion is nonprecedential except as provided by Minn. R. Civ. App. P. 136.01, subd. 1(c).
Affirmed in part, reversed in part, and remanded
Becker County District Court
Keith Ellison, Attorney General, St. Paul, Minnesota; and
Brian W. McDonald, Becker County Attorney, Braden F. Sczepanski, First Assistant County Attorney, Detroit Lakes, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Jason R. Steffen, Assistant Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Gaïtas, Presiding Judge; Larkin, Judge; and Cochran, Judge.
NONPRECEDENTIAL OPINION
Appellant Eric Clayton Nord challenges his convictions for possession of a firearm by an ineligible person and receiving stolen property, arguing that the district court plainly erred by failing to provide the jury with instructions on corroboration of accomplice testimony and specific unanimity. He also argues that his sentence for receiving stolen property must be reversed because it was calculated using an incorrect criminal history score. In a pro se supplemental brief, Nord raises five additional challenges to his convictions. We affirm in part, reverse in part, and remand.
The charges against Nord stemmed from two events occurring just days apart, a burglary and a "controlled buy" of stolen firearms arranged by law enforcement, both involving Nord and his accomplice, D.M. (accomplice). Both Nord and accomplice were charged for their suspected involvement in the two events.
On February 27, 2019, Nord and accomplice were working on a stalled car outside the home of B.G. B.G., who was familiar with Nord and accomplice, briefly spoke with them and invited them inside to warm up. Later in the day, B.G. left town while Nord and accomplice were still outside working on the car. Nord's friend C.E. eventually drove her van to that location to meet him. Nord loaded some "luggage" and bags into the van, and C.E. dropped Nord off at her home, where he was staying. C.E. then returned to pick up accomplice. She dropped accomplice off elsewhere.
B.G. returned that evening. The next morning, B.G. found footprints in the snow leading from his driveway to his neighbor L.K.'s home, although L.K. had been out of town for some time. L.K. returned on March 1 to find that his home had been burglarized and some of his belongings were missing. L.K. reported the burglary to the sheriff's office and identified his missing property, which included two firearms (one shotgun and onesemi-automatic rifle), toolkits (one bearing L.K.'s initials and containing a drill), other hardware and tools, hunting equipment, a laptop, two metal detectors, tax and insurance paperwork, approximately 14 grams of gold, and various gemstones. About one week later, L.K. received notice that most of the stolen property had been recovered; he met with officers and confirmed the items were his.
In early February 2019, P.W. (informant) was facing criminal charges and a probation violation unrelated to this case. Hoping for leniency in his criminal cases, informant agreed to work as a police informant.
Informant met Nord for the first time several weeks later; he was stranded and paid Nord for a ride. A few days after their initial meeting, Nord went to a motel room where informant was staying and showed him some "merchandise" that he was selling. Nord told informant that he had "hit some licks."1 He showed informant some gemstones, and then mentioned that he also had a couple of firearms available. Informant said that firearms were "more [his] style" and expressed interest in buying them. When Nord left, informant contacted law enforcement to report his meeting with Nord.
The day after the motel meeting, informant arranged another rendezvous with Nord at the instruction of law enforcement. Officers equipped informant with an audio recording device and gave him $400 in buy money.
Informant then went to C.E.'s residence, where Nord was staying. Officers were stationed nearby, conducting surveillance. Informant entered C.E.'s garage, where he met with Nord and accomplice. According to informant, Nord laid two firearms on a table—one shotgun and one semi-automatic rifle—before agreeing to sell the semi-automatic rifle to informant for $400. Informant gave Nord the buy money and then left the garage with the semi-automatic rifle. He turned the gun over to officers and provided a detailed account of the controlled buy. The entire encounter was also audio recorded but the recording is muffled and difficult to understand. However, isolated portions of the transaction are discernible and support informant's description of the events.2
A short time later, C.E., Nord, and accomplice left the residence in C.E.'s van. Officers stopped C.E.'s van and searched it, locating the $400 in buy money. Nord and accomplice were arrested. Officers went to C.E.'s residence and secured the scene until a search warrant was issued. When officers ultimately searched C.E.'s residence pursuant to the warrant, they found L.K.'s property in a corner of the garage, including his shotgun and documents bearing his signature. Documents belonging to Nord were also commingled with L.K.'s property in the garage.
In a single complaint, the state charged Nord with counts relating to the burglary of L.K.'s residence on February 27, 2019, and counts relating to the controlled buy on March 4, 2019. For the burglary, Nord was charged with second-degree burglary, Minn.Stat. § 609.582, subd. 2(a)(1) (2018), and one count of ineligible person in possession of a firearm, Minn. Stat. § 609.165, subd. 1b(a) (2018). And, in connection with the controlled buy and the stolen property found in the garage, he was charged with a second count of ineligible person in possession of a firearm and receiving stolen property, Minn. Stat. § 609.53, subd. 1 (2018). Nord pleaded not guilty and moved pretrial to suppress the fruits of the search warrant, claiming deficiencies with the warrant and Fourth Amendment violations. The district court denied the motion and Nord had a jury trial.
At trial, the state called 11 witnesses and offered over 20 exhibits into evidence. Informant testified about his meeting with Nord at the motel and about the controlled buy in C.E.'s garage. Accomplice also testified against Nord in exchange for a favorable plea deal on his own related charges. According to accomplice, Nord had been staying with C.E. and storing things in her garage. Consistent with informant's testimony, accomplice testified that Nord showed informant two firearms that were for sale and informant paid cash for one of them. Nord's counsel cross-examined accomplice about his motives for testifying against Nord and about the benefits of the plea deal he received from the state. Nord exercised his right to remain silent and called one witness.
Near the end of trial, the district court instructed the jury on the law of the case. Neither party requested an instruction on the requirement for corroboration of an accomplice's testimony or an instruction directing jurors that they must all agree on which of the two firearms Nord possessed, and the district court did not provide either of these instructions. The jury acquitted Nord of the two charges related to the burglary. But thejury found him guilty of the two charges stemming from the controlled buy—ineligible person in possession of a firearm and receiving stolen property.
The district court sentenced Nord to 60 months in prison for the firearm conviction, which was a statutory mandatory minimum sentence. Additionally, the district court imposed a concurrent term of 24 months for the receiving-stolen-property offense. In calculating the 24-month sentence for receiving stolen property, the district court seemingly relied on the criminal history score set forth in the sentencing worksheet. The worksheet states that Nord's criminal history score is four, with three points resulting from past crimes and one custody-status point. The custody-status point was apparently added because Nord committed the offenses here within the term of probation originally set by the district court in another matter.
Nord appeals.
Nord first argues that he should receive a new trial because the district court failed to instruct the jury that an accomplice's testimony must be corroborated by independent evidence. Because Nord did not request the accomplice-corroboration instruction, we review his challenge for plain error. See State v. Ezeka, 946 N.W.2d 393, 407 (Minn. 2020), cert. denied, 141 S. Ct. 934 (2020).
A criminal defendant forfeits appellate review of jury instructions when no specific request or objection was presented to the district court. Id. But an appellate court may address the unpreserved issue if the defendant can establish (1) an error occurred, (2) that was plain, and (3) the error affected his substantial rights. Id.; see Minn. R. Crim. P. 31.02.
A "plain" error is one that is "clear or obvious." Ezeka, 946 N.W.2d at 407 (quotations omitted). Plain error occurs when the district court fails to provide a required instruction. See id.; State v. Vasquez, 776 N.W.2d 452, 459 (Minn. App. 2009). When it is reasonably likely that a required instruction would have significantly affected the jury's verdict, the district court's failure to provide the instruction affects the defendant's substantial rights. State v. Davenport, 947 N.W.2d 251, 262 (Minn. 2020).
Minnesota law recognizes that "the...
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