State v. Vance, A05-459.

• Decision Date: 12 July 2007
• Docket Number: No. A05-459.,A05-459.
• Citation: 734 N.W.2d 650
• Parties: STATE of Minnesota, Respondent, v. Michael Neal VANCE, Appellant.
• Court: Minnesota Supreme Court

734 N.W.2d 650

STATE of Minnesota, Respondent, v. Michael Neal VANCE, Appellant.

No. A05-459.

Supreme Court of Minnesota.

July 12, 2007.

John M. Stuart, State Public Defender, Theodore David Sampsell-Jones, Assistant State Public Defender, Minneapolis, MN, for Appellant.

Lori Swanson, Attorney General, St. Paul, MN, James Backstrom, Dakota County Attorney, Kevin J. Golden, Assistant Dakota County Attorney, Hastings, MN, for Respondent.

Heard, considered, and decided by the court en banc.

OPINION

ANDERSON, PAUL H., Justice.

A Dakota County jury found Michael Neal Vance guilty of third-degree assault and making terroristic threats. The district court entered convictions for both offenses, and after finding that they were part of the same course of conduct, sentenced Vance to 24 months in prison for the third-degree assault conviction. Vance appealed his convictions claiming, among other things, that the court erred when it failed to instruct the jury on the definition of assault, thereby omitting the element of intent from the instructions. The Minnesota Court of Appeals affirmed Vance's convictions. Vance petitioned our court for review, citing both the alleged jury instruction error and ineffective assistance of trial counsel. We granted review on the jury instruction issue. We reverse.

Appellant Michael Neal Vance appeals his third-degree assault conviction for an assault on C.S. Vance was living at C.S.'s home when the assault occurred. Vance testified that C.S. was his girlfriend at the time, but C.S. testified that they were no longer romantically involved and she was only allowing Vance to stay at her home because she was afraid of him. C.S. said that in the past, she had called the police to have Vance removed from her home, but he returned numerous times, sometimes breaking down the door to get into the home. C.S. testified that Vance had threatened her on several occasions before the alleged assault and had told her that he would kill her if she called the police.

C.S. testified that on the morning of June 19, 2004, she and Vance began arguing from the time they woke up to go to work. She said that the day was "pretty much a blur" and that she did not remember what they were arguing about. She did remember Vance smashing collectible beer cans and then punching her in the mouth. After Vance hit C.S., he went into the kitchen to get some ice, and C.S. headed for the front door in an effort to get away from Vance because she was afraid of him. C.S. testified that Vance saw her leave the home and came after her. C.S. remembered seeing Vance leap at her from the top of the front steps as she was running across the yard to the neighbors to get help. The next thing she remembered was being in the bathroom of her home, with her shirt off, holding her shoulder, and being in unbearable pain. She also remembered noticing that she had a black eye and a "black mouth."

After C.S. was injured, her friend B.G. arrived to drive Vance to work. B.G. testified that when she arrived at C.S.'s home, the windows were all covered with sheets or towels and the furniture was in disarray. Upon entering the home, B.G. found C.S. and Vance sitting on C.S.'s bed. B.G. testified that when she asked them what was going on, Vance said "I don't know what happened to her. I guess she just r[an] outside and ran into the fire hydrant." B.G. then took C.S. to the hospital, where it was determined that she had a broken collarbone and scratch or bite marks on the back of her shoulder.

At Vance's trial, the police officer who first responded to the report of domestic assault at C.S.'s home testified that C.S. told him that sometime after the assault, she had received threatening telephone calls from Vance. Another officer testified that C.S. told him that Vance had threatened to kill C.S. if she reported the assault to the police. C.S. testified at trial that Vance had threatened her in the past, but she did not expressly state that he threatened her at any time during or after the assault.

A warrant was issued for Vance's arrest on June 23, 2004. He was charged by complaint with assault in the third degree and making terroristic threats. At the time the warrant was issued, Vance was in custody in Illinois, and he was ultimately extradited to Minnesota.

Vance testified to a very different version of events than did C.S. He testified that in the five days leading up to the alleged assault, C.S. had been smoking methamphetamine. He stated that in the early morning hours of June 19, he was drawing an eagle head on the ceiling of the bedroom he shared with C.S. and, while he was doing so, C.S. was screaming and yelling at him. He testified that sometime between 3:30 and 4 a.m., C.S. decided to leave to go to a friend's house. When C.S. decided to leave, Vance told her that she could not drive her car. Vance testified that he would not let C.S. drive because she had been smoking methamphetamine and was also on medication. He told the jury that C.S. was in such bad shape that she needed help getting to the bathroom.

Vance testified that when he heard C.S. leave the home, he ran outside to stop her. He said that as he lunged to grab C.S., she tripped and he fell on top of her. He said that he then picked up C.S., recognized that she was hurt, and told her she needed to go to the hospital emergency room. He said that C.S. resisted his attempt to get medical treatment and that she just wanted to go back into the home. He then carried C.S. into the home and helped her take off her shirt. Vance said that when B.G. arrived, he told B.G., "[C.S.] fell. I fell on top of her." During his testimony, Vance stated, "I didn't mean to hurt my girlfriend."

Before closing arguments, the district court instructed the jury regarding the law of third-degree assault. The court stated:

The statutes of Minnesota provide that whoever assaults another and inflicts substantial bodily harm is guilty of a crime. The elements of assault in the third degree are: First, the defendant assaulted another person; second, the defendant inflicted substantial bodily harm on the other person. Substantial bodily harm means bodily harm that involves a temporary but substantial disfigurement, causes a temporary but substantial loss or impairment of the function of any bodily member or organ, or causes a fracture of any bodily member. It is not necessary for the State to prove that the defendant intended to inflict substantial bodily harm but only that the defendant intended to commit the assault. Third, the defendant's [sic] took place on or about June 19, 2004, in Dakota County.

(Emphasis added.) Defense counsel did not object to this or any other jury instruction.

The jury found Vance guilty of third-degree assault and making terroristic threats. The district court convicted him of both offenses, and sentenced him to 24 months in prison for the third-degree assault conviction.¹ Vance appealed to the court of appeals, claiming among other things that the district court erred when it failed to instruct the jury on the element of intent, and that he received ineffective assistance of trial counsel. State v. Vance, No. A05-459, 2006 WL 1072996, at *1 (Minn.App. Apr.25, 2006). The court of appeals affirmed the convictions, holding that the jury instructions did not constitute plain error. Id. at *3. The court declined to reach the merits of the ineffective assistance of counsel claim, and rejected Vance's other claims. Id. at *3-5. Vance then petitioned for review, which we granted on the jury instruction issue.

Vance concedes that his counsel failed to object to the jury instructions given at trial. Failure to object to jury instructions before they are given generally constitutes a forfeiture of the right to an appeal based on those instructions. See State v. White, 684 N.W.2d 500, 508 (Minn. 2004) (citing among other authorities Minn. R.Crim. P. 26.03, subd. 18(3)). But failure to object will not preclude appellate review if the instructions constitute plain error affecting substantial rights or an error of fundamental law. Id. (citing among other authorities Minn. R.Crim. P. 26.03, subd. 18(3)).² Vance argued to the court of appeals that the district court's failure to instruct the jury regarding the element of intent should be analyzed under the plain error standard of review. Vance, 2006 WL 1072996, at *2. The court of appeals agreed and applied that standard. Id. at *2-3. Vance now argues that under State v. Osborne, 715 N.W.2d 436 (Minn. 2006), we should apply a harmless error standard of review because the failure to instruct the jury on an element of the offense is tantamount to the denial of the right to a jury trial on that element, which right cannot be forfeited by silence, but only by an affirmative waiver under Minn. R.Crim. P. 26.01, subd. 1(2).³ Because Vance argued for a plain error standard of review at the court of appeals and that standard may render moot Vance's arguments under Osborne, we will begin our analysis by applying the plain error standard and then, if necessary, we will consider Vance's argument under Osborne.

Generally, when there is no argument that an unobjected-to jury instruction violated a defendant's right to a jury trial, we have reviewed that instruction under the plain error standard. Under this standard, we may review an unobjected-to error only if there is (1) error; (2) that is plain; and (3) that affects substantial rights. State v. Crowsbreast, 629 N.W.2d 433, 437 (Minn.2001). Plain error has been described as "clear error affecting substantial rights that resulted in a miscarriage of justice." United States v. Pennington, 168 F.3d 1060, 1068 (8th Cir. 1999). We have stated that an error affects substantial rights if there is a reasonable likelihood that the error had a significant effect on the jury's verdict. See State v. Young, 710 N.W.2d 272, 280 (Minn.2006) (quotation marks omitted). If the three prongs of the...