State of Minnesota, Respondent,

STATE OF MINNESOTA
IN COURT OF APPEALS
A16-1509

State of Minnesota,
Respondent,

vs.

Aaron Jude Schnagl,
Appellant.

Filed December 18, 2017
Affirmed
Florey, Judge

Chisago County District Court
File No. 13-CR-13-1022

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Janet Reiter, Chisago County Attorney, Nicholas A. Hydukovich, Special Assistant County
Attorney, Stillwater, Minnesota (for respondent)

Cathryn Middlebrook, Chief Ap pellate Public Defender, Melissa Sheridan, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Florey, Pr esiding Judge; Rodenberg, Judge; and
Bratvold, Judge.
S Y L L A B U S
In a trial for third-degree murder, under Minn. Stat. § 609.195(b) (2012), a district
court does not abuse its discretion by refusi ng to give a specific joint-acquisition jury
instruction based on State v. Carithers, 490 N.W.2d 620 (Minn. 1992), if the defendant and
the decedent were not spouses.

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O P I N I O N
FLOREY, Judge
A jury found appellant Aaro n Jude Schnagl guilty of third-degree murder for giving
cocaine to a woman who later died. Appellant argues that the eviden ce is insufficient to
sustain the conviction and that the district court erred by refusing to instruct the jury on the
defense’s theory of joint acquisition of the c ontrolled substance. Appellant also raises a
number of pro se arguments. We conclude that the evidence is sufficient to sustain the
conviction, the district court did not abuse its discretion by refusing to give a joint-
acquisition instruction, and appellant’s pro se arguments are unavailing. We therefore
affirm appellant’s conviction.
FACTS
On the night of December 8, 2012, appella nt and a 27-year-old woman, D.J., were
using cocaine and drinking alcohol at appellant’s house. Appellant claims that he and D.J.
jointly purchased and used the cocaine, he passed out, and D.J. was gone when he awoke.
D.J.’s body was found approximately five months later floating in a pond about 440 yards
west of appellant’s residence. She was naked except for a tank top.
The cocaine was obtained at the home of E. T., appellant’s business partner. After
obtaining several grams of cocaine, appellant and D.J. went to appellant’s house, where
they drank alcohol and used the cocaine. At 2:38 a.m., on December 9, appellant’s burglar
alarm went off. A dispatcher called appellant at 2:40 a.m., and appellant gave a code that
cleared the alarm. He told the dispatcher that the cause of the alarm was his girlfriend. At

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3:07 a.m., the alarm went off again. Appellant called the security company and said that it
was a false alarm.
It started snowing in the early mornin g hours of December 9, and the snow
continued throughout the day. D.J.’s family became concerned ab out her whereabouts.
D.J.’s sister called appellant. He told her that he and D.J. went to bed, and he awoke to
find she was gone, but she left her persona l things, including her purse, shoes, and
cellphone at his house. D.J.’s sister reported her missing.
A deputy was dispatched to appellant’s hom e. Upon arriving, he saw appellant’s
truck in the ditch. He spoke with appella nt in appellant’s home and observed some
women’s clothes on the kitchen table, D.J.’s purse and cellphone, and a pair of women’s
boots near the front door. He did not see signs of a struggle . He took a taped statement
from appellant.
Appellant told the deputy th at, on December 8, he and D.J. got back to his house
around 7:30 or 8:00 p.m. They hung out, were sexually intimate, had four or five drinks,
and went to bed between 1:00 and 2:30 a.m. D. J. went to bed in her clothes. Appellant
awoke around 9:30 a.m., and D.J. was gone; he was worried that she wandered off into the
snow because that morning he saw tracks in the snow in his yard that “stopped at the
woods.” He searched for her using his truck and got it stuck. The deputy asked why
appellant did not contact authorities, and ap pellant responded various ly that he did not
know when D.J. woke, he was hung over, and D.J. had “done this before.” Appellant said
that he and D.J. did not use drugs that night , but later admitted to using marijuana. The
deputy gave appellant a preliminary breath test, which indicated that appellant was
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intoxicated. Appellant agreed to give a formal statement and was transported to the
sheriff’s office.
A warrant was obtained to search appellant’s home and truck. D.J.’s wallet, license,
and cellphone were recovered, as well as a pu rse, clothing, and wome n’s boots. In the
trunk of appellant’s BMW, investigators discovered 12 pounds of marijuana. The
following day, another search was executed. A paper towel and a tissue containing blood
were collected from appellant’s home; DNA te sting showed a male DNA profile. Trace
blood samples from furniture and a bed sheet matched D.J.’s DNA.
On December 12, 2012, appellant, with his attorney present, gave a statement to law
enforcement. He said that on the day in question he and D.J. shopped, picked up food, and
then stopped at his house where he “grabbed some stuff . . . like a mixer.” They then went
to E.T.’s house for a quick visit. Appellant and D.J. returned to appellant’s house where
D.J. snorted “[p]robably ten” lines of cocaine. Appellant said that there were, at most, five
grams of cocaine at his house that night. The next morning he may have awoken as early
as 7:00 a.m., and he saw that D.J. was gone. He then went back to sleep for several hours.
At some point that morning, he searched his house and outside for D.J. He saw tracks in
the snow, but no sign of D.J. He texted D.J.’s friends, and he texted his neighbor to see if
the neighbor had seen D.J. Then he searched for her using his truck and got it stuck, after
which he panicked because he was “still intoxicated.” He then drove to E.T’s. home in a
third vehicle. During the inte rview, he mentioned that his “h ouse shoes” were missing.
However, investigators found those shoes in appellant’s bedroom when they executed the

5
search warrant. When asked why he did not contact police in the morning, appellant
responded, “Because I was still drunk . . . .”
The Duffel Bag
J.J. owned an auto-repair shop next to appellant’s business. On December 9, 2012,
after getting stuck and driving to E.T.’s home in a panic, appellant called J.J. and asked
him to pick up a duffel bag from inside appell ant’s BMW. J.J. went to appellant’s house
that day, grabbed a duffel bag containing marijuana, and brought it to the home of C.B.
After J.J. left the bag at C.B.’s house, E.T. called J.J. and asked him to go to
appellant and E.T.’s shop because he was worried that “there may be stuff there.” J.J. went
to the shop, grabbed some drug-related items, placed the items in a paper bag, and placed
the paper bag in the duffel bag at C.B.’s house. J.J. eventually confessed to the existence
of the duffel bag, and authorities recovered it. The paper bag contained benocyclidine pills,
bags of marijuana, and a digital scale. The duffel bag also contained approximately 23
grams of cocaine and a type of sugar used as a cutting agent to increase the volume of
cocaine.
Appellant told investigators that he was only aware of the marijuana in the duffel
bag, and J.J. must have put the cocaine in the duffel bag. J.J. later testified that he did not
see the cocaine when he briefly inspected the contents of the duffel bag, but the cocaine
may have been among the items that he grabbed from appellant and E.T.’s shop.
Indictment and Trial
Appellant was indicted on one count of third-degree murder. The indictment
alleged that appellant proximately caused D.J.’s death by providing her with cocaine. At
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trial, appellant testified in his defense that he did not give cocaine to D.J. in exchange for
money. He and D.J. together bought about five grams of cocaine from E.T. for $80, with
each pitching in $40.
Dr. Strobl, a forensic pathologist, testif ied that nothing in D.J.’s external
examination suggested a cause of death, and she could not say with any degree of medical
certainty what caused D.J.’s death. D.J. had a significant amount of alcohol in her system,
as well as cocaine, cocaine metabolites, and a small amount of an antihistamine. The
doctor opined that her death could have been the result of cocaine toxicity, hypothermia,
or drowning. Dr. Strobl testif ied that cocaine likely contribu ted to D.J.’s death, either
through direct cocaine toxicity , or as a result of “unpredict able behavior” brought on by
the use of cocaine, su ch as leaving the house and dying from hypothermia or drowning.
Dr. Wigren, a forensic pathologist, echoed Dr. Strobl’s conclusion that the cause of D.J.’s
death could not be determined with any degree of medical certainty.
E.T. testified that on December 8, 2012, he went to Minneapolis to pick up cocaine
at appellant’s request. Appella nt gave E.T. directions to an apartment building. When
E.T. pulled up, a guy cam e out, took a box of marijuana from E.T., a nd left the cocaine.
The marijuana had come from appellant’s home. Appellant and D.J. later showed up at
E.T.’s home, and appellant cut the cocaine, increasing its volume by adding additional
“stuff.” Appellant created ten ounces of cu t cocaine, but reserved some of the uncut
cocaine. He packaged the cut cocaine and left it with E.T., but took “about 7 grams or so”
of the uncut cocaine, saying, “T hat will probably be enough.” E.T. sold some of the cut
cocaine to other people that night, including a person named C.S. According to E.T., he
7
and appellant agreed to split th e profits from the sale of the cocaine, but appellant would
be entitled to a return of his original investment.
According to E.T., appellant called him th e next morning “kind of freaked out”
because D.J. was not there wh en he awoke, but her boots an d cellphone were still at his
house. Appellant asked E.T. to help remove the duffel bag of marijuana from his garage,
but E.T. declined. E.T. testified that he became concerne d about ecstasy and marijuana
being found at the shop, so he asked J.J. to “clear the stuff out of the shop just in case
anything happens.”
D.H. testified at trial that he shared a jail cell with appellant in December 2012.
Appellant initially told D.H. th at he did not know what ha ppened to D.J. However,
according to D.H ., appellant later said th at he and D.J. were having intercourse and she
started convulsing and foaming at the mouth. Appellant said that he blacked out in panic,
but he remembered taking her out and “pushing her in the water,” his feet were cold, and
he lost his “house shoes.”
D.B. also testified that he was a cellmate of appellant. He tes tified that appellant
told him that D.J. used cocai ne and got “really aggressive.” Appellant and D.J. had sex
and then got into a figh t because she wanted more cocaine and he di d not want to give it
to her. Appellant got mad and “put [D.J.] outside the door or something,” but she came
back inside. Appellant said th at D.J. busted his nose, so he threw the cocaine at her and
went to clean up the blood. Appellant came back and D.J. was on the couch, unresponsive.
Appellant did not see D.J. the next morning; he went looking for her and ended up crashing
his truck in the ditch. D.B. testified that a ppellant said he had “something like an ounce”
8
of cocaine that night. Accord ing to D.B., appellant stated that D.J.’s body would not be
found. Appellant sent a letter to D.B. in March 2013 in whic h he said that D.J. “was a
drunk and a [c]oke head but I get the blame because I am the dealer.”
Appellant was convicted of third-degree murder and sentenced to 160-months
imprisonment. However, the jury conclude d that the state had not proved beyond a
reasonable doubt that appellant had concealed D.J.’s body. This appeal followed.
ISSUES
I. Was there sufficient evidence to esta blish that appellant proximately
caused D.J.’s death by giving her cocaine?
II. Did the district court commit reversible error by refusing to instruct the
jury on appellant’s joint-acquisition theory?
III. Do appellant’s pro se arguments have merit?
ANALYSIS
I. There was sufficient ev idence to establish that ap pellant proximately caused
D.J.’s death by giving her cocaine.

Appellant first argues that the state did not prove beyo nd a reasonable doubt that
cocaine toxicity caused D.J.’s death, and therefore, appellant’s conviction must be
reversed. In considering a claim of insufficient evidence, this court’s review is limited to
a thorough analysis of the r ecord to determine whether the evidence, when viewed in the
light most favorable to the conviction, was sufficient to allow the jurors to reach the verdict
that they did. State v. Webb , 440 N.W.2d 426, 430 (Minn. 1989). The reviewing court
must assume “the jury believed the state’s w itnesses and disbelieved any evidence to the
9
contrary.” State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989). The reviewing court will
not disturb the verdict if the jury, acting with due regard for the presumption of innocence
and the requirement of proof beyond a reasona ble doubt, could reasonably conclude that
the defendant was guilty of the charged offense. Bernhardt v. State, 684 N.W.2d 465, 476-
77 (Minn. 2004).
Appellant was convicted of violating Minn. Stat. § 609.195(b), which provides that
“[w]hoever, without intent to cause death, proximately causes the death of a human being
by, directly or indirectly, unlawfully selli ng, giving away, bartering, delivering,
exchanging, distributing, or administering a controlled substance classified in Schedule I
or II, is guilty of murder in the third degree.” Cocaine is a schedule II controlled substance.
See Minn. Stat. § 152.02, subd. 3(b)(4) (2012). For purposes of Minn. Stat. § 609.195(b),
the term “proximate cause” is defined for juro rs as “something that had a substantial part
in bringing about the indivi dual’s death either directly and immediately or through
happenings that follow one after another.” 10 Minnesota Practice, CRIMJIG 11.40 (2015).
We first must determine the appropriate standard for review. Appellant asserts that
the evidence supporting the pr oximate-cause element of hi s conviction was completely
circumstantial, and a circumst antial-evidence standard of review applies. The state
contends that a significant amount of direct evidence was presented to prove that cocaine
caused D.J.’s death, and therefore, we should use a direct-evidence standard of review. We
conclude that a circumstantial-evidence standard is appropriate.
The issue here is whether cocaine played a substantial part in D.J.’s death, and any
affirmative conclusion requires some level of inference and reliance on circumstantial
10
evidence. Any conclusion that the cocaine had a substantial pa rt in bringing about D.J.’s
death by hypothermia or drowning, “either directly and immediately or through happenings
that follow one after another,” is based on circumstantial evidence, such as the location of
her body, her lack of clothing, and the presence of cocaine in her system. Id. Likewise,
any conclusion that D.J. overdosed and died because of cocaine toxicity requires reliance
on circumstantial evidence. Neither Dr. Strobl nor Dr. Wigren could say with any degree
of medical certainty that cocaine toxicity killed D.J. Dr. Strobl could only say that cocaine
likely contributed in some manner to D.J.’s death. D.H.’s testimony concerned only
symptoms from which an overdose could be in ferred, and the same is true of D.B.’s
testimony. “[W]hen a disput ed element is sufficiently proven by direct evidence
alone, . . . it is the traditional standard, rath er than the circumstantial-evidence standard,
that governs.” State v. Horst, 880 N.W.2d 24, 39 (Minn. 2016). Because any conclusion,
beyond a reasonable doubt, that cocaine proximately caused D.J.’s death requires
inference and reliance on circumstantial evid ence, a circumstantial- evidence standard of
review is appropriate. However, even under that heightened standard of review, we must
conclude that the evidence was sufficient.
Under the circumstantial-evidence standard , an appellate court reviews the evidence
using a two-step analysis. The appellate c ourt first identifies the circumstances proved,
deferring “to the jury’s acceptance of the proof of these circumstances and rejection of
evidence in the record that conflicted with the circumstances proved by the [s]tate.” State
v. Robertson , 884 N.W.2d 864, 871 (Minn. 2016 ) (quotations omitted). Second, the
reviewing court “independently examine[s] the reasonableness of all inferences that might
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be drawn from the circumstances proved, including inferences consistent with a hypothesis
other than guilt.” Id. (quotations omitted). “In order to sustain a conviction based on
circumstantial evidence, the reasonable inferences that can be drawn from the
circumstances proved as a whole must be consistent with the hypothesis that the accused
is guilty and inconsistent with any rational hypothesis except that of guilt.” Id. (quotation
omitted). The reviewing court must view not only the circum stances proved as a whole,
but also must consider the inferenc es drawn therefrom as a whole. State v. Harris , 895
N.W.2d 592, 600 (Minn. 2017).
The circumstances proved are that D.J. wa s a 27-year-old woman. On the night of
December 8, she drank alcohol and used cocaine at appe llant’s home. Appellant
orchestrated the acquisition of the cocaine and took approximately five to seven grams of
uncut cocaine for use that nigh t, saying, “That w ill probably be enough.” Appellant told
D.H. that he and D.J. were ha ving intercourse that night, and D.J. began convulsing and
foaming at the mouth. When D.J.’s body was found months later, she was naked except
for a tank top. Appellant also told D.H. that he lost his “house shoes” while pushing her
body into water, and he used the same specif ic term, “house shoes, ” in a statement to
investigators. He told D.B. that she was la st seen unresponsive and was missing the next
morning, and he told D.B. more than once that “they’re not going to find the body.”
Appellant did not contact the authorities on th e morning of December 9, 2012. Despite
claiming to have gone to sleep by 2:30 a.m., records indicate that he was cognizant enough
to call his security company to report a “false alarm” after the alarm was tripped at 3:07
a.m. D.J.’s body was found in a pond near appellant’s home. She had alcohol, cocaine,
12
and cocaine metabolites in her system. The reasonable infere nces that might be drawn
from these circumstances are cons istent with appellant’s guilt; that is, it is reasonable to
infer that cocaine played a substantial role in bringing about D.J.’s death, either by a fatal
overdose or through irrational decisions that led to D.J. succumbing to hypothermia or
drowning.
Appellant contends that the “circumstan ces proved support a reasonable inference
that [D.J.] left [appellant’s] house under her own power, accidentally fell into the pond due
to the blizzard conditions and died of exposure or by drowning,” or “someone else showed
up at [appellant’s] house while he was passed out and did something to [D.J.] that resulted
in her death.” The alternative hypothesis that D.J. left appellant’s house is not reasonable
when one considers that D.J. would have ha d to leave appellant’s house in the middle of
the night, in December, wearing virtually no clothing, and walk over 440 yards, eventually
succumbing to hypothermia or drowning. The medical examiner did not see any wounds
on D.J.’s legs or feet, despite evidence that there was buckthorn in the area, which is
inconsistent with the suggested alternative inference. Moreover, even if the suggested act
occurred, the behavior itself would tend to suggest that cocaine substantially affected D.J.’s
reasoning and behavior.
There is no indication that there was an alternative perpetrator. There were no signs
of a struggle, and no signs that D.J. was inju red. Speculation is not enough to support a
proposed alternative hypothesis. State v. Al-Naseer, 788 N.W.2d 469, 480 (Minn. 2010).
In sum, appellant’s alternative theories are unreasonable. See State v. French, 402 N.W.2d
13
805, 808 (Minn. App. 1987) (concluding th at circumstantial evidence did not rationally
suggest that victim or a third party caused victim’s death).
On the morning of December 9, appellant did not contac t authorities, despite now
claiming that it is quite possible that D.J. may have wandered off into the snow that night.
The jury could have reasonably inferred that appellant was more concerned with removing
controlled substances from his home. When authorities finally arrived, appellant denied
using drugs other than marijuana. See State v. McTague, 190 Minn. 449, 453-54, 252 N.W.
446, 448 (1934) (providing that concealment and related conduct is admissible to show
consciousness of guilt). Viewing the evidence in the light most favorable to the conviction,
there is no reasonable inference other than th at appellant proximately caused D.J.’s death
by giving her cocaine.
II. The district court did not commit reversib le error by refusing to instruct the
jury on appellant’s joint-acquisition theory.

Appellant next argues that the district court committed reversible error by refusing
to provide a requested jury instruction stating that appellant has not “given away” cocaine
if the jury finds “that the decedent and [appellant] jointly acquired the cocaine.” We review
the district court’s refusal to give a requested jury instruction for an abuse of discretion.
State v. Cole , 542 N.W.2d 43, 50 (Min n. 1996). An abuse of discretion occurs if the
evidence warrants a request ed jury instruction that was not given. Turnage v. State, 708
N.W.2d 535, 546 (Minn. 2006).
We begin our analysis with an examina tion of both Minn. Stat. § 609.195(b) and
Carithers, 490 N.W.2d 620, the case from which ap pellant’s joint-acquisition defense is
14
drawn. We then examin e the few cases that have followed and discussed Carithers.
Ultimately, we conclude that the district co urt did not abuse its di scretion by refusing to
give a specific joint-acquisition jury instruction.
In 1987, Minnesota enacted the third-degree murder statute, Minn. Stat.
§ 609.195(b). 1987 Minn. Laws ch. 176, § 1, at 373. The statute was created in response
to an opinion from this court wherein we c oncluded that felony murder could not be
predicated on the sale of cocaine. State v. Aarsvold , 376 N.W.2d 518, 522 (Minn. App.
1985), superseded by statute, 1987 Minn. Laws ch. 176, § 1, at 373 (codified at Minn. Stat.
§ 609.195(b) (Supp. 1987)); see also Carithers, 490 N.W.2d at 621 (discussing Aarsvold).
Five years after enactment, in Carithers, the supreme court ex amined Minn. Stat.
§ 609.195(b) while answering a certified question: “When a married couple jointly acquires
a Schedule I controlled substanc e, and one of the partners uses that substance and
subsequently dies from a drug overdose, did the legislature intend that the surviving partner
be subject to prosecution under Minn.[]Stat. § 609.195(b)?” 490 N.W.2d at 620. The
supreme court concluded that criminal liabi lity could not be imposed where there was
“joint acquisition and possession of drugs under circumstances where neither defendant’s
conduct [could] be fairly characterized as invo lving a sale or transfer or delivery to the
person who died.” Id. at 622, 624. In reaching that conclusion, the supreme court pondered
the legislative intent behind the statute, noti ng that it is “directed at the control of the
commercial distribution of controlled substances,” and requires an “unlawful transfer” of
a schedule I or II controlled substance. Id. at 622. The court examined the criminalization
of giving away a controlled substance, as pr oscribed by Minn. Stat. § 152.09, subd. 1(1)
15
(1986), noting that imposing criminal liability for such acts was intended “(a) to cover the
practice of giving youngsters or other poten tial customers drugs in order to encourage
subsequent purchase and (b) to prevent defe ndants charged with an unlawful sale from
denying that the transaction constituted a sale because they did not receive any money for
the drug in question.” Id. The supreme court recognized potential issues with Minn. Stat.
§ 609.195(b), such as murder liability resulting from friends sharing drugs, but did not
reach such issues and limited the holding to the certified question presented. Id. at 623-24.
The supreme court reassert ed the limited scope of Carithers in State v. Varner , a
case where the court was asked to consider whether an exchange of sexual favors for drugs
constituted a sale. 643 N.W.2d 298, 300 (Minn. 2002). In answering that question in the
affirmative, the court took the opportunity to describe Carithers as “narrow” and involving
“a married couple” who jointly acquired a controlled substance. Id. at 307. The supreme
court rejected the argument that Carithers applied to the circumstances presented in
Varner, noting that there was no evidence “that any of the parties involved were married.”
Id.
The supreme court again addressed Carithers in Barrow v. State, a case in which a
defendant was allowed to withdraw his guilty plea to sale of a controlled substance because
the defendant’s admission that he gave cocain e to his wife so she could hide it did not
constitute a “sale.” 862 N.W.2d 686, 687, 690 n. 2 (Minn. 2015). Although Barrow
involved a husband and wife, the supreme court distinguished the circumstances presented
in Barrow from Carithers because the drugs had not been jointly acquired. Id. at 690 n.2.
16
The aforementioned cases i ndicate that the holding in Carithers is narrow, and the
existence of a marriage relationship is an important element in establishing joint acquisition
and possession for purposes of a defense.
In State v. Vasquez , this court addressed Carithers in a case where two people,
A.E.W. and Robert Chapman, both contributed $20 to buy a $40 bag of heroin from George
Vasquez. 776 N.W.2d 452, 455 (Minn. App. 2009). A. E.W. overdosed and died. Id.
Chapman and A.E.W. were not involved romantically. Id. We held that Chapman was
Vasquez’s accomplice because he aided in the commission of th e crime by taking
possession of the heroin and by manufacturing the lethal dose with which A.E.W. injected
herself. Id. at 459. Therefore the district court should have given a jury instruction on the
requirement of corroboration of accomplice testimony. Id. The state argued that Carithers
was controlling for purposes of determining whether Chapman was an accomplice. Id. at
457-58. We concluded that the holding in Carithers is narrow and only applies to married
couples. Id. at 458.
Carithers indicates that Minn. Stat. § 609.195(b) is directed at commercial drug
transactions. See Carithers, 490 N.W.2d at 622 (“Certainly, the legislative enactment of
section 609.195(b) was directed at the control of the commercial distribution of controlled
substances.”). But the supreme court, in Carithers, did not reach the issue of whether
controlled-substance murder can be predicated on a noncommercial drug transaction, and
there is no Minnesota caselaw supporting a defense to controlled-substance murder based
on joint acquisition of the controlled substance, except under the unique circumstances of
a married couple that jointly acquires the drugs. There remains some uncertainty as to the
17
exact scope of criminal liability under Minn. Stat. § 609.195(b). See id. at 623-24
(declining to address whether the statute impos es criminal liability under circumstances
where friends share drugs). But, in this case, we are pres ented with a limited question:
whether a district court abuses its discretion by refusing to give a specific joint-acquisition
jury instruction in a case involving an unmarri ed couple. District courts have broad
discretion in formulating jury instructions and determining whether to give a specific jury
instruction. State v. Onyelobi , 879 N.W.2d 334, 353 (Minn. 2016); State v. Hysell , 449
N.W.2d 741, 744 (Minn. App. 1990), review denied (Minn. Mar. 15, 1990). Although a
defendant may assert a theory at trial, a district court “has discretion not to instruct the jury
on the theory” if there is no evidence to support the theory. State v. Vazquez, 644 N.W.2d
97, 99 (Minn. App. 2002). It is not our role to extend existing law to expand the scope of
the joint-acquisition defense. That task fa lls to the supreme court or legislature. State v.
Thomas, 890 N.W.2d 413, 420 (Minn. App. 2017), review denied (Minn. Mar. 28, 2017).
Given the lack of any caselaw establishing joint acquisition as a defense to controlled-
substance murder, except in cases where spouses jointly acquire the controlled substance,
we conclude that the district court did not abuse its discretion.
III. Appellant’s pro se arguments do not establish reversible error.
Appellant also raises a number of pr o se arguments. He alleges numerous
deficiencies in the grand-jury proceedings th at led to his indictment, argues that his
conviction violates Minn. Stat . § 609.035 (2012), raises several due-process arguments,
and points to several instances of alleged pr osecutorial misconduct. We address each of
these arguments in turn.
18
A. Grand-Jury Proceedings
Appellant challenges his indictment on several grounds, arguing that the state failed
to disclose a favorable statement concerning a drug transaction between C.S. and E.T. and
also fabricated and misrepresented evidence. “A grand jury proceeding is not a trial on the
merits, and jurors do not dete rmine guilt or innocen ce, but rather determine if there is
probable cause to believe the ac cused has committed the crime.” State v. Scruggs , 421
N.W.2d 707, 717 (Minn. 1988). Indictments are presumed to be legitimate and are rarely
invalidated. State v. Roan, 532 N.W.2d 563, 569 (Minn. 1995). A defendant seeking to
overturn an indictment bears a heavy burden. Id. That burden is especially apparent here,
as appellant brings his challenge to the indictment after being found guilty beyond a
reasonable doubt after an extensive jury trial. See Scruggs, 421 N.W.2d at 717.
Regarding the statement from C.S., there is no indication that the statement was
knowingly withheld by the prosecution. Rather, it appears that the statement was obtained
as part of a separate criminal investigati on and was immediately provided to the defense
once its existence became known to the prosecutor. Presuming, but not deciding, that there
was a failure to disclose the statement to th e grand jury, such a fa ilure requires dismissal
of the indictment only “if the evidence woul d have materially affected the grand jury
proceeding.” State v. Miller , 754 N.W.2d 686, 698 (Minn. 2008) (quotation omitted).
Here, appellant was convicted, despite the av ailability of the statement at trial. We
therefore cannot conclude that the grand-jury proceedings would have been materially
affected by inclusion of the statement.
19
After review, we conclude that appellant’s claims concerning fabricated evidence,
false testimony, and cumulative errors like wise provide no basi s to invalidate the
indictment. Presuming but not deciding that the evidence was improper, we conclude that
it is extremely unlikely that the ev idence affected the outcome. See State v. Reed , 737
N.W.2d 572, 587 (Minn. 2007) (concluding that there was no basis to invalidate indictment
because of false testimony where it was extremely unlikely that the testimony affected the
decision to indict). Further, the possibility of prejudice is questionable, as no indictment
was required. See Minn. R. Crim. P. 17.01, subd.1 (sta ting that an indictment is required
for an offense punishable by life imprisonment); see also Minn. Stat. § 609.195(b) (setting
the maximum term of imprisonment for third-degree murder at 25 years).1
B. Minn. Stat. § 609.035
On February 12, 2013, appellant pleaded guilty to aiding and abetting second-degree
possession of cocaine. See State v. Schnagl , No. A16-1998, 2017 WL 3687474, at *1
(Minn. App. Aug. 28, 2017). He now argues that, given his prior conviction, his murder
conviction violates the protections against multiple prosecutions and punishments provided
by Minn. Stat. § 609.035. We conclude that section 609.035 has not been violated. The
two crimes at issue are not part of a single behavioral incident. Appellant’s conviction for
aiding and abetting second-degree possession of cocaine involved the 23 grams of cocaine
recovered from the duffel bag, not the cocaine given to D.J. by appellant. Id. The offenses

1 Appellant argues that he was denied the right to testify at the grand-jury proceedings.
However, a defendant does not have an absolute right to testify before a grand jury. State
v. Morrow, 834 N.W.2d 715, 721 (Minn. 2013).

20
occurred at different times and places and were motivated by different criminal objectives.
See State v. Jones , 848 N.W.2d 528, 533 (M inn. 2014) (outlining test for determining
whether offenses were part of a single course of conduct).
C. Due Process
Appellant asserts that he did not receive a fair trial. He challenges the denial of his
request for an alternative-perpet rator jury instruction, he ar gues that the district court
should have sua sponte instructed the ju ry on the requirement of corroboration of
accomplice testimony, and he argues that a lesser-included-offense instruction should have
been provided on the uncharged offense of second-degree manslaughter. We conclude that
the district court did not err.
No alternative-perpetrator instruction wa s required because the substance of the
instruction was contained in the instructions given; that is, if someone else caused D.J.’s
death, then the jury could not convict appellant of proximately causing her death. See State
v. Auchampach, 540 N.W.2d 808, 816 (Mi nn. 1995) (stating that if “the substance of a
particular instruction is alr eady contained in the court’s instructions to the jury, the
[district] court is not required to give the requested instruction”).
Regarding the accomplice instruction, appellant elected to proceed under the theory
that E.T. was an alternativ e perpetrator rather than an accomplice. “An accomplice
instruction must be given if a witness could have reasonably been charged with and
convicted of aiding and abetting the crime at issue.” State v. Larson, 787 N.W.2d 592, 602
(Minn. 2010). However, “when a defendant pres ents evidence and argu es at trial that a
witness is an alternative perpetrator, [then] that witness is not an accomplice as a matter of
21
law, and an accomplice instru ction is not required.” Id. Because appellant expressly
proceeded under an alte rnative-perpetrator theory, the district cour t did not err by failing
to provide an accomplice-corroboration instruction.
Appellant asserts that a jury instruction for the lesser-included offense of second-
degree manslaughter should have been provid ed. Appellant fails to provide any binding
authority to support the assertion that s econd-degree manslaughter is a lesser-included
offense of controlled-substance murder. Wh en determining whether to provide a lesser-
included-offense instruction, district courts “must determine whether 1) the lesser offense
is included in the charged offense; 2) the ev idence provides a rational basis for acquitting
the defendant of the offense charged; and 3) the evidence provides a rational basis for
convicting the defendant of the lesser-included offense.” State v. Dahlin, 695 N.W.2d 588,
595 (Minn. 2005). The relevant elements of second-degree manslaughter, under Minn.
Stat. § 609.205(1) (2012) are that a person causes the death of another “by the person’s
culpable negligence whereby the person crea tes an unreasonable risk, and consciously
takes chances of causing death or great bodily harm to another.” It does not appear that
second-degree manslaughter is a lesser-included offense of c ontrolled-substance murder.
“A lesser offense is necessarily included in a greater offense if it is impossible to commit
the latter without also committing the former.” State v. Roden , 384 N.W.2d 456, 457
(Minn. 1986). “In determining whether an offense is a lesser-included offense, [we look]
at the elements of the offense, not the facts of the particular case.” Bellcourt v. State, 390
N.W.2d 269, 273 (Minn. 1986). Second-degree manslaughter requires culpable
negligence, which is “gross negligence coupled with the element of recklessness.” State v.
22
Back, 775 N.W.2d 866, 869 (Minn. 2009) (q uotation omitted). Co ntrolled-substance
murder requires an unlawful transfer of certain controlled substances. Minn. Stat.
§ 609.195(b). Committing the latter does not necessarily mean that one has committed the
former. Even assuming that second-degree ma nslaughter is a lesser-included offense, in
this instance there was no rational basis for th e jury to acquit on th e third-degree murder
charge and convict on a second-degree manslaughter charge. Either appellant gave away
cocaine to D.J. and thereby proximately caused her death, or he did not. The evidence did
not provide a rational basis for the jury to c onclude that there was a lesser degree of
culpability.
Finally, appellant asserts that the prosec utor committed discov ery violations and
failed to preserve evidence, in violation of appellant’s right to due process, and the district
court abused its discretion by denying a motion for a mistrial and denying a request for a
change of venue. After reviewing these claims, we conclude that they are unavailing.
D. Prosecutorial Misconduct
Appellant asserts that he should be gran ted a new trial because of prosecutorial
misconduct, which occurred when the prosecut or stated in the opening statement and
closing argument that, for appellant, D.J.’s life “was just a cost of doing business,” and, to
appellant, D.J. was nothing but a “crack whore.” Appellant objected to these statements.
A prosecutor may argue “reasonable inferences from the facts presented.” State v.
Johnson, 616 N.W.2d 720, 728 (Minn. 2000). And a prosecutor need not present a
colorless argument. State v. Porter , 526 N.W.2d 359, 363 (Minn. 1995). But the
prosecutor should refrain from making remarks that are intended to inflame the passions
23
and prejudices of the jury. State v. Mayhorn , 720 N.W.2d 776, 786-87 (Minn. 2006).
Evidence showed that appellant made disparaging remarks about D.J., such as referring to
her as a “[c]oke [w]hore.” As such, to th e degree that the pros ecutor’s statements
constituted misconduct, the misconduct was of the less-serious variety, requiring us to
analyze “whether the misconduct likely played a substantial part in influencing the jury to
convict.” State v. Nissalke, 801 N.W.2d 82, 105 (Minn. 2011) (quotation omitted). We
cannot conclude that the brief statements likely influenced the verdict.
Appellant argues that, in closing argument, the prosecutor “disparaged the defense’s
alternative perpetrator theory” that it was E.T. who sold th e cocaine to appellant and D.J.
The prosecutor referred to this theory as “ridiculous,” and appellant objected. The district
court instructed the jury to disregard the statement. See State v. Hoppe, 641 N.W.2d 315,
321 (Minn. App. 2002) (stating that it is misconduct to refer to the defense’s argument as
ridiculous), review denied (Minn. May 14, 2002). Again, we cannot conclude that the
comment likely influenced the verdict. See Nissalke, 801 N.W.2d at 105. We presume the
jury followed the district cour t’s instructions to disregard the objected-to statement. See
State v. Taylor, 650 N.W.2d 190, 207 (Minn. 2002) (noting that we presume a jury follows
a district court’s instructions).
Appellant argues that the prosecuto r committed misconduct during closing
arguments by stating that the state’s case wa s “undisputed.” Appellant mischaracterizes
the prosecutor’s statement. Th e prosecutor stated that it was “undisputed . . . that [D.J.]
and [appellant] were out at the mall.” This statement was not misconduct.
24
Appellant argues that the prosecutor co mmitted misconduct by stating, “Now, I
want to talk about another possibility in terms of cause of death. One raised by Dr. Wigren,
the [d]efense’s paid expert in this case.” Appellant argues that it was improper to
characterize Dr. Wigren as a paid expert. While it is improper to assert, without grounds,
that a professional witness is testifyi ng in a predetermined manner for money, State v.
Wahlberg, 296 N.W.2d 408, 420 (Minn. 1980), such is not the case here, where the
prosecutor merely referred to the witness as a paid expert; Dr. Wigren testified that he was
being paid. We therefore conclude that the statement was not misconduct.
Lastly, appellant argues that the state committed misconduct by showing pictures
and introducing evidence of the 12 pounds of marijuana. Ho wever, the district court had
previously ruled that the evidence of the marijuana found in the BMW and the drugs found
in the duffel bag was admissible as evidence of a common scheme or plan. Therefore, the
prosecutor did not engage in misconduct by presenting such evidence.2
D E C I S I O N
We conclude that the evidence was sufficient to sustain th e conviction, the district
court did not abuse its discretion by failing to give a joint-acquisition jury instruction
because appellant and D.J. were not spouse s, and appellant’s pro se arguments are
unavailing.
Affirmed.

2 Appellant alleges additional instances of purported misconduct and due process
violations. We have reviewed these claims and conclude that they are unavailing.