State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A17-0364

State of Minnesota,
Respondent,

vs.

Sarah Mae Dillon,
Appellant.

Filed February 5, 2018
Affirmed
Johnson, Judge

Steele County District Court
File No. 74-CR-16-38

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

Daniel A. McIntosh, Steele County Attorney, Owatonna, Minnesota (for respondent)

Melissa Sheridan, Eagan, Minnesota (for appellant)

Considered and decided by Johnson, Presiding Judge; Ross, Judge; and Bratvold,
Judge.
U N P U B L I S H E D O P I N I O N
JOHNSON, Judge
A Steele County jury found Sarah Mae Dillon guilty of, among other things, aiding
and abetting possession of a firearm by an ineligible person. We conclude that the district
court did not err by denying Dillon’s motion to dismiss that charge on the ground that the
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state was required to prosecute her only under a statute that sets forth a lesser offense. We
also conclude that the district court did not err by not instructing the jury that it must
unanimously agree with respect to which person Dillon aided and abetted . Therefore, we
affirm.
FACTS
In December 2015, Dillon had been friends with Frank Tubbs and Kia Lee for
several years. Tubbs and Lee had been romantically involved and had children together .
Both Tubbs and Lee had been convicted of felonies and, thus, were ineligible to possess
firearms.
On December 23, 2015, Dillon purchased a pistol from a Cabela’s store. She was
accompanied by Tubbs, who had provided the money she used to purchase the pistol.
During the evening of December 31, 201 5, and into the early-morning hours of
January 1, 2016, Dillon, Tubbs, and Lee socialized with each other and with others in
Owatonna at two or more bars and other locations. The evidence shows that , during the
evening, both Tubbs and Lee temporarily possessed the pistol that Dillon had purchased
on December 23, although it appears that neither Tubbs nor Lee continued to possess it at
the end of the evening. During the following days , Dillon attempted to recover the pistol
by various means, including sending text messages to Lee and others who , she believed,
might have the pistol. On January 4, 2016, Dillon reported to the local police department
that the pistol had been stolen. During the ensuing investigation, law-enforcement officers
came to believe that the pistol had not been stolen from Dillon but , rather, that she had
given it to Tubbs or Lee.
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The state charged Dillon with four offenses: (1) aiding and abetting possession of a
firearm by an ineligible person , in violation of Minn. Stat. §§ 624.713, subd. 1(2) (2014),
609.05, subd. 1 (2014), based on an allegation that Dillon voluntarily gave the pistol to
Tubbs or Lee on December 31 or January 1; (2) obtaining a firearm for a person known to
be ineligible to possess a firearm, in violation of Minn. Stat. § 624.7133 (Supp. 2015 ),
based on an allegation that Dillon purchased the pistol on Tubbs’s behalf on December 23;
(3) transferring a pistol to an ineligible person , in violation of Minn. Stat. § 624.7141,
subd. 1(3) (2014), based on an allegation that Dillon voluntarily gave the pistol to Tubbs
or Lee on December 31 or January 1; and (4) falsely reporting a crime, in violation of Minn.
Stat. § 609.505, subd. 1 (2014), based on an allegation that Dillon falsely told police on
January 4 that the pistol had been stolen from her.
In August 2016, Dillon moved to dismiss count 1, a felony, on the ground that the
statutes on which it is based are in irreconcilable conflict with the statutes on which counts
2 and 3, gross misdemeanors, are based. Dillon argued that, in light of the irreconcilab le
conflict, the state was required to charge her only with the lesser gross -misdemeanor
offenses. The district court denied th e motion on the ground that the statutes are not in
irreconcilable conflict with each other.
The case was tried to a jury on four days in August 2016. The state called seven
witnesses: Lee, Tubbs, H.S. (whom Lee and Tubbs visited during the evening in question),
two Owatonna police officers, and two Cabela’s employees. Dillon was the sole witness
in her defense. The witnesses provided conflicting testimony as to the whereabouts of the
pistol at various times during the evening and as to who possessed it.
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Lee was the state’s first witness. She testified that she has “a short-term memory”
and does not fully remember the events of the evening in question. But she testified that,
while she, Tubbs, and Dillon were at a man’s house that evening, Dillon took out the pistol
and showed it to everyone present. Lee also testified that , later in the evening, while she
and Tubbs were parked outside Dillon’s apartment in Tubbs’s sport -utility vehicle, Dillon
got out of the vehic le, placed the pistol on the driver’s seat, and walked away toward her
apartment. Lee testified that, after Dillon placed the pistol on the driver’s seat, Lee drove
the vehicle to the home of her friend, H.S., while sitting on the pistol so that Tubbs, with
whom Lee was arguing, could not get access to it. Lee testified further that, after she and
Tubbs arrived at H.S.’s house, they continued to argue inside the vehicle. Lee testified that
H.S. came outside and intervened by reaching into the vehicle and taking the pistol away
from Lee, at which point Lee exited the vehicle, took the pistol away from H.S., and left
the scene on foot.
Tubbs testified that he does not remember much of the evening in question except
that he spent the evening with Lee and Dillon. He testified that he does not remember
seeing the pistol and does not remember arguing with Lee outside H.S.’s house.
H.S. testified that she saw Lee and Tubbs inside Tubbs’s vehicle while it was parked
in her driveway. She testified that Tubbs was holding the pistol in his hands and that Lee
got it away from him and then exited the vehicle and ran away.
Officer Munn of the Owatonna Police Department testified that he interviewed
Dillon twice after her January 4 report. The state played video -recordings of the two
interviews for the jury. In the first interview, Dillon stated that Lee had taken the pistol
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from her apartment. When Officer Munn interviewed Dillon a second time, after he had
interviewed Tubbs and Lee, Dillon then stated that Lee did not take the pistol. Dillon
further stated that she had placed it on the driver’s seat of Tubbs’s vehicle after he asked
for it.
Dillon testified that, at approximately 11:00 p.m. on December 31, Lee and Tubbs
came to her apartment and asked her to go out with them. Dillon testified that she drove
the three of them to a bar in Tubbs’s vehicle because Lee did not have a driver’s license
and Tubbs was drunk. Dillon testified that, later in the evening, after she had driven the
trio to a bar closer to her home, Tubbs yelled at her and told her to give him the pistol that
she recently had purchased . Dillon testified that she drove the group to her apartment
building, exited the vehicle, and went inside , intending to retire for the evening . Dillon
further testified that, at approximately 2:00 a.m., Lee visited her apartment, said that Tubbs
had “kicked her out,” and asked to spend the night at Dillon’s apartment. Dillon testified
that she went to get some blankets an d pillows for Lee and, when she returned, saw Lee
running out of the apartment. Dillon testified that when she awoke the following day, she
noticed that the pistol, which had been on the kitchen table, was missing. Dillon testified
that she believed at the time that Lee may have taken the pistol.
In closing argument, the prosecutor urged the jury to conclude, based on the
testimony of Lee and H.S., that Dillon gave the pistol to Lee or Tubbs when she placed it
on the driver’s seat of Tubbs’s vehicle. Dillon’s trial attorney, on the other hand, urged the
jury to conclude, based on Dillon’s testimony, that Lee took the pistol from Dillon’s
kitchen table without Dillon’s knowledge or consent. Dillon’s attorney argued that the jury
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should not believe Lee’s testimony and that H.S.’s testimony was not inconsistent with
Dillon’s testimony because H.S. described events that occurred after Lee had taken the
pistol.
The jury found Dillon guilty on counts 1, 3, and 4 and not guilty on count 2. The
district court imposed concurrent sentences of 60 months of imprisonment on count 1 and
30 days of jail on count 4. Dillon appeals.
D E C I S I O N
I. Prosecutor’s Charging Discretion
Dillon argues that the district court erred by denying her pre-trial motion to dismiss
count 1. She contends that the statutes setting forth the offense alleged in count 1 are in
irreconcilable conflict with the statute setting forth the offense alleged i n count 3. She
contends that the prosecutor was required to charge her under the statute cited in count 3,
which alleges a gross misdemeanor offense, rather than the statutes cited in count 1, which
alleges a felony offense.
“The basic rule is that absen t legislative intent to the contrary . . . , the prosecutor
may prosecute under any statute that the defendant’s acts violate without regard to the
penalty.” State v. Chryst, 320 N.W.2d 721, 722 (Minn. 1982). But if two criminal statutes
apply to a defendant’s alleged conduct, and if one statute is more specific than the other
statute, and if the legislature has expressed a policy that the more specific statute should
govern to the exclusion of the more general statute, then the prosecutor is not free to charge
the offense set forth in the more general statute. State v. Kalvig, 296 Minn. 395, 397-400,
209 N.W.2d 678, 680 -81 (1973). In that situation, the statutes are deemed to be in
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irreconcilable conflict. Id. at 398, 209 N.W.2d at 680 (citing Minn. Stat. § 645.26, subd. 1
(1970)). But two criminal statutes are not in irreconcilable conflict, as that term is used in
Kalvig, unless, in every conceivable circumstance, the actions that violate the more specific
statute also violate the more general statute. See Chryst, 320 N.W.2d at 722-23. This court
applies a de novo standard of review to the interpretation of statutes . State v. Barrientos,
837 N.W.2d 294, 298 (Minn. 2013).
In this case, the district court reasoned that the statutes on which count 1 a re based
are not in irreconcilable conflict with the statute on which count 3 is based. We agree. The
statutes on which count 1 are based impose criminal liability on a person who “intentionally
aids, advises, hires, counsels, or conspires with or otherwise procures [another person] to
commit the crime” of “possess[ing] a pistol or semiautomatic military-style assault weapon
. . . or any other firearm” if the other person “has been convicted of . . . a crime of violence.”
Minn. Stat. §§ 609.05, subd. 1, 624.713, subd. 1(2). The statute on which count 3 is based
imposes criminal liability on a person who “intentionally transfers a pistol or
semiautomatic military -style assault weapon to another if the person knows that the
transferee . . . is disqua lified under section 624.713 from possessing a pistol or
semiautomatic military-style assault weapon.” Minn. Stat. § 624.7141, subd. 1(3).
The two offenses are different in scope with respect to the reasons why a person is
ineligible or disqualified fro m possessing a pistol or semiautomatic military -style assault
weapon. The ineligibility that is the underlying basis of the offense alleged in count 1 is a
prior conviction of “a crime of violence.” Minn. Stat. § 624.713, subd. 1(2). That is only
one of 13 reasons why a person may be ineligible to possess a pistol or a semiautomatic
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military-style assault weapon. See Minn. Stat. § 624.713, subd. 1(1)-(13). The ineligibility
that is the underlying basis of the offense alleged in count 3 could be any one of those 13
reasons. Minn. Stat. § 624.7141, subd. 1(3) (referencing Minn. Stat. § 624.713). In some
conceivable circumstances, the same conduct would be a crime under the statute on which
count 3 is based but would not be a crime under the statutes on which count 1 is based. For
example, the offense charged in count 3 would encompass a person who has been civilly
committed as mentally ill or a person who has been civilly committed to a treatment facility
for chemical dependenc y. See Minn. Stat. § 624.713, subd. 1(3), (5). Accordingly,
contrary to Dillon’s argument, the offense alleged in count 3 is not more specific than the
offense alleged in count 1. See Chryst, 320 N.W.2d at 722-23. Furthermore, unlike Kalvig,
there is no expression of legislative policy to the effect that the statute on which count 3 is
based should be utilized instead of the statutes on which count 1 is based. See id.
Consequently, the statutes on which count 1 is based are not in irreconcilable conflict with
the statute on which count 3 is based , so the state was free to prosecute Dillon under any
or all of the statutes.
Thus, the district court did not err by denying Dillon’s motion to dismiss count 1.
II. Instruction on Unanimity
Dillon also argues that the district court e rred by not instructing the jury that its
verdict must be unanimous with respect to which ineligible person Dillon aided and abetted
in the unlawful possession of the pistol. More specifically, Dillon argues that the district
court should have instructed the jury that it must unanimously agree with respect to whether
Dillon aided and abetted Tubbs or whether Dillon aided and abetted Lee. Dillon contends
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that, in the absence of such an instruction, the jury might not have been unanimous about
the conduct for which it found Dillon guilty.
In the district court, Dillon did not request a ny particular instruction on unanimity
and did not object to the district court’s proposed instructions for the reasons urged .
Accordingly, we apply the plain -error test on appeal. State v. Milton , 821 N.W.2d 789,
805 (Minn. 2012). Under the plain-error test, we may not grant appellate relief on an issue
to which there was no objection unless (1) there is an error, (2) the error is plain, and (3) the
error affects the defendant ’s substantial rights. State v. Griller, 583 N.W.2d 736, 740
(Minn. 1998). An error is plain if it is clear or obvious under current law, State v.
Strommen, 648 N.W.2d 681, 688 (Minn. 2002), and an error is clear or obvious 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 first three requirements of the plain -error test are satis fied, we
then consider the fourth requirement, whether the error “seriously affects the fairness,
integrity or public reputation of judicial proceedings.” State v. Washington, 693 N.W.2d
195, 204 (Minn. 2005) (quotation omitted).
Under the Due Process Cla use of the Fourteenth Amendment to the United States
Constitution, a criminal defendant has a right to a unanimous verdict. State v. Crowsbreast,
629 N.W.2d 433, 438-39 (Minn. 2001); see also Minn. R. Crim. P. 26.01, subd. 1(5). But
the right to a unanim ous verdict does not mean that “‘jurors should be required to agree
upon a single means of commission’” of a criminal offense. Crowsbreast, 629 N.W.2d at
439 (quoting Schad v. Arizona , 501 U.S. 624, 631 -32, 111 S. Ct. 2491, 2497 (1991)
(plurality opinion) ). Rather, “‘different jurors may be persuaded by different pieces of
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evidence, even when they agree upon the bottom line.’” Id. (quoting Schad, 501 U.S. at
631-32, 111 S. Ct. at 2497 (plurality opinion) (internal quotation omitted)) ; see also State
v. Ihle, 640 N.W.2d 910, 917-19 (Minn. 2002). The right to a unanimous verdict forbids
the grouping of different alleged acts that are “inherently separate” or the grouping of
different alleged acts in a manner that is “irrational or unfair.” State v. Pendl eton, 725
N.W.2d 717, 731-32 (Minn. 2007). For example, a state may not define a crime in such a
way that a person could be found guilty either by committing robbery or by failing to file
an income tax return. See Crowsbreast, 629 N.W.2d at 439 (citing Schad, 501 U.S. at 650,
111 S. Ct. at 2491 (Scalia, J., concurring)).
In this case, Dillon is correct as a factual matter that the district court’s instructions
allowed a juror to conclude that Dillon is guilty on count 1 either because she aided and
abetted Tubbs’s unlawful possession of the pistol or because she aided and abetted Lee’s
unlawful possession of the pistol. But the two alternative means of committing the offense
alleged in count 1 are not “inherently separate.” See Pendleton, 725 N.W.2d at 731-32.
Furthermore, the state sought to establish Dillon’s guilt on count 1 by proving a single act:
her placing of the pistol on the driver’s seat of Tubbs’s vehicle while both Tubbs and Lee
were in the vehicle. Because both Tubbs and Lee were ineligi ble to possess the pistol, it
does not matter whether Dillon intended to aid and abet Tubbs’s unlawful possession or
Lee’s unlawful possession. Given the allegations and evidence in this case, it is not
“irrational or unfair” to allow the jury to find Dil lon guilty without determining
unanimously whether Tubbs or Lee was the object of her aiding and abetting. See id.
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Dillon relies heavily on this court’s opinion in State v. Stempf , 627 N.W.2d 352
(Minn. App. 2001), which was issued before the supreme court’s opinions in Crowsbreast,
Ihle, and Pendleton. In Stempf, the state charged the defendant with one count of
possession of a controlled substance , but the state introduced evidence at trial that the
defendant possessed methamphetamine in two different places: at his office and in his
truck. Id. at 354. The defendant had different defenses with respect to each allegation. Id.
We concluded that the defendant’s right to a unanimous verdict was violated by the lack
of a specific instruction requiring the jury to unanimously agree that the defendant either
possessed the methamphetamine found in his office or possessed the methamphetamine
found in his truck. Id. at 358-59.
This case is distinguishable from the rat her unusual circumstances of Stempf, in
which the prosecutor pleaded a single count of possession instead of two counts. In this
case, the state sought to prove that Dillon committed the offense alleged in count 1 by
engaging in one act at a particular pl ace at a single point in time: by placing the pistol on
the driver’s seat of Tubbs’s vehicle while both Tubbs and Lee were inside the vehicle when
it was parked outside Dillon’s apartment building. If a juror believed the state’s evidence
and concluded that Dillon engaged in that act at that place at that time, the juror could find
her guilty, regardless whether Tubbs or Lee thereafter possessed the pistol. See State v.
Infante, 796 N.W.2d 349, 356-57 (Minn. App. 2011) (distinguishing Stempf on ground that
defendant was alleged to have engaged in single behavioral incident); State v. Begbie, 415
N.W.2d 103, 106 (Minn. App. 1987) (concluding that right to unanimous verdict was not
violated because appellant threatened both wife and husband), review denied (Minn.
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Jan. 20, 1988). Dillon’s right to due process is not violat ed by an instruction that allowed
jurors to find her guilty on count 1 without requiring unanimity with respect to whether
Dillon aided and abetted Tubbs or whether Dillon aided and abetted Lee.
Thus, the district court did not err by not giving the jury an instruction that required
unanimity with respect to which person Dillon aided and abetted.
Affirmed.