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This opinion will be unpublished and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
A17-0380

State of Minnesota,
Respondent,

vs.

Brittany Tiara Johnson,
Appellant.

Filed January 29, 2018
Reversed and remanded
Bratvold, Judge

Swift County District Court
File No. 76-CR-15-594

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

Danielle H. Olson, Swift County Attorney, Allison T. Whalen, Assistant County Attorney,
Benson, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Steven P. Russett, Assistant
Public Defender, St. Paul, 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
BRATVOLD, Judge
Appellant challenges convictions of fifth-degree possession of marijuana, child
endangerment, and possession of drug paraphernalia. She argues that the district court
2
committed plain error when it instructed the jury on child endangerment, that the district
court failed to exercise its discretion when it refused to stay adjudication of her conviction
for marijuana possession, and that the district court impermissibly imposed multiple
sentences for conduct arising out of a single behavioral incident. Because we determine the
district court’s jury instructions were plain error that prejudiced appellant’s substantial
rights, we reverse Johnson’s child-endangerment conviction and remand for a new trial.
Because the district court failed to exercise its discretion when it refused to stay
adjudication of appellant’s marijuana-possession conviction, we reverse and remand for
resentencing. Finally, because our disposition of the first and second issues eliminates the
basis for appellant’s third issue, we decline to decide it.
FACTS
On December 21, 2015, a narcotics task force entered appellant Brittany Tiara
Johnson and her partner Denniss Hamilton’s apartment, where they lived with their two-
year-old daughter. The apartment building is directly adjacent to a high school football
field.
The task force was executing a search warrant, based on an informant’s statements
that she had bought drugs there from a male. In the apartment’s kitchen, officers found
marijuana smoking pipes, a marijuana grinder, and some “baggies.” The officers found a
scale in the drawer of a living room table. The apartment had three upstairs bedrooms. The
first room appeared to be a child’s bedroom. The second bedroom had women’s clothing
in the closet, as well as a child’s cup, and a bare mattress. In the third bedroom, the officers
found a bed with sheets, men’s clothing, a few articles of women’s and children’s clothing,
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and “feminine hygiene cream.” Also in the third bedroom was a bank card and a rental
agreement, both in Johnson’s name.
In the third bedroom, officers found in “plain view,” scattered bags of marijuana,
marijuana seeds, and other paraphernalia, including marijuana packaging materials. In a
suitcase on the floor of the third bedroom, officers also found 68.38 grams of marijuana,
along with other marijuana paraphernalia, including digital scales and baggies used for
packaging marijuana.
Outside the apartment, officers also searched a car, which was registered in
Johnson’s name, and found more marijuana paraphernalia and a “corner-cut baggie which
[was] consistent with the packaging of controlled substances.” Lastly, the officers found a
nametag with “Brittany” handwritten on it.
The state charged Johnson with fourth-degree sale of marijuana in a school zone
(Minn. Stat. § 152.024, subd. 1(4) (2014)), fifth-degree possession of marijuana (Minn.
Stat. § 152.025, subd. 2(a)(1) (2014)), child endangerment (Minn. Stat. § 609.378, subd.
1(b)(2) (2014)), and possession of drug paraphernalia (Minn. Stat. § 152.092 (2014)).
During a two-day jury trial, Hamilton testified for the defense, stating that he sold
drugs out of the apartment, but that Johnson had no knowledge that marijuana was in the
house or that Hamilton had sold drugs out of the apartment.
1 He testified that he made only

1 The state charged Hamilton with fourth-degree sale of marijuana in a school zone (Minn.
Stat. § 152.024, subd. 1(4)), fifth-degree sale of marijuana (Minn. Stat. § 152.025, subd.
1(a)(1)), and child endangerment (Minn. Stat. § 609.378, subd. 1(b)(2)). Hamilton pleaded
guilty to the fourth-degree sale charge. The district court in that case entered a stay of
adjudication for the fourth-degree sale charge and dismissed the other two charges.
4
two sales from the apartment—one sale to a friend and a second sale to a police informant
when their daughter was present. When pressed about whether Johnson knew about the
drug sales based on the items found during the search, Hamilton testified that the marijuana
in the suitcase had been in the house for one day before the raid. He also testified that he
had kept the suitcase away from Johnson because she had been sleeping in the second
bedroom for a month due to relationship strife. He explained that marijuana was strewn
about the third bedroom on the day of the raid because he “was messing” with it. Lastly,
Hamilton said that the women’s clothing in the third bedroom was there because the family
did laundry “together” and he had put it in his laundry hamper.
The jury acquitted Johnson of the school-zone sale of marijuana charge, but found
her guilty of the other three charges. For fifth-degree possession of marijuana, the district
court stayed imposition of sentence for two years.
2 For child endangerment, the district
court sentenced Johnson to 365 days in jail, but stayed execution of all but two days, with
two days of credit for time served. For possession of drug paraphernalia, which is a petty
misdemeanor, the district court imposed a $50 fine. This appeal follows.
D E C I S I O N
I. The district court committed prejudicial plain error when it instructed the jury
on child endangerment.

Johnson argues the district court’s jury instructions on child endangerment misled
the jury. Johnson did not object to the district court’s jury instructions at trial, and so this

2 The stay of imposition was entered pursuant to Minn. Stat. § 609.135 (2014), under which
Johnson’s conviction will be a misdemeanor, not a felony, provided she successfully
completes probation.
5
court reviews the instructions for plain error. State v. Griller, 583 N.W.2d 736, 740 (Minn.
1998). Under this test, the court must determine if there was “(1) error; (2) that is plain;
and (3) the error must affect [the defendant’s] substantial rights.” Id. If the defendant is
able to satisfy these first three prongs, this court may “correct the error only if it seriously
affect[s] the fairness, integrity, or public reputation of judicial proceedings.” State v.
Washington-Davis, 881 N.W.2d 531, 541 (Minn. 2016) (quotation omitted).
A. The child-endangerment instruction was plain error.
A district court has significant latitude to select jury instructions. State v. Huber,
877 N.W.2d 519, 522 (Minn. 2016). We review the exercise of this discretion for abuse of
discretion. Id. Jury instructions, however, must “fairly and adequately explain the law of
the case and not materially misstate the law.” Id. “An instruction is in error if it materially
misstates the law.” State v. Ihle, 640 N.W.2d 910, 916 (Minn. 2002).
The state charged Johnson under Minn. Stat. § 609.378, subd. 1(b)(2), which defines
the offense, as follows:
A parent, legal guardian, or caretaker who endangers the
child’s person or health by . . . (2) knowingly causing or
permitting the child to be present where any person is selling,
manufacturing, possessing immediate precursors or chemical
substances with intent to manufacture, or possessing a
controlled substance, as defined in section 152.01, subdivision
4, in violation of section 152.021 [2014], 152.022 [2014],
152.023 [2014], 152.024, or 152.0262 [2014]; is guilty of
child endangerment and may be sentenced to imprisonment for
not more than one year or to payment of a fine of not more than
$3,000, or both.

Minn. Stat. § 609.378, subd. 1(b)(2) (emphasis added). For ease of reference, we will refer
to this provision as “subdivision 1(b)(2).” A “controlled substance ” includes marijuana.
6
See Minn. Stat. § 152.01 (2014) (defining “controlled substance” and referring to Minn.
Stat. § 152.02 (2014)); Minn. Stat. § 152.02 (defining marijuana as a “schedule I”
controlled substance). The possession crimes listed in subdivision 1(b)(2) are Minn. Stat.
§§ 152.021, 152.022, 152.023, 152.024, or 152.0262. Minn. Stat. § 609.378, subd. 1(b)(2).
Importantly, this list does not include fifth-degree possession of marijuana, which is the
drug possession statute Johnson was charged with violating. See Minn. Stat. § 152.025.
When the district court instructed the jury on subdivision 1(b)(2), it closely followed
the pattern instruction, but did not specify which possession crimes the state must prove
were violated in the presence of a child.3 The district court instructed the jury that it could
find Johnson guilty if she “knowingly caused or permitted a child to be present where a
person was illegally selling, manufacturing, possessing immediate precursors or chemical
substances with intent to manufacture, or possessing marijuana.” (Emphasis added.)
Johnson contends that the district court plainly erred because the jury instructions
allowed the jury to infer that possessing marijuana in any amount or form in the presence
of a child would violate subdivision 1(b)(2). The state concedes that the district court
plainly erred, and we agree. Knowingly causing or permitting a child to be present while

3 The pattern instruction for violations of subdivision 1(b)(2) describe the first element as
follows: “First, the defendant knowingly caused or permitted ( ______), a child , to be
present where a person was illegally selling, manufacturing, possessing immediate
precursors or chemical substances with intent to manufacture, or possessing (______) (a
controlled substance).” 10 Minnesota Practice, CRIMJIG 13.94 (2015). The footnote to
the pattern instruction for subdivision 1(b)(2) accurately states which possession offenses
must be violated in the presence of a child to violate subdivision 1(b)(2). See id. The pattern
instruction itself, however, does not. Id.

7
possessing any amount of marijuana is not a violation of subdivision 1(b)(2). See Minn.
Stat. § 609.378, subd. 1(b)(2). By instructing the jury that it could find Johnson guilty of
child endangerment if she “knowingly caused or permitted” a child to be present while a
person was illegally possessing any amount of marijuana, the district court plainly erred.
B. The district court’s error affected Johnson’s substantial rights.
“An error affects a defendant’s substantial rights if the error was prejudicial and
affected the outcome of the case.” State v. Watkins, 840 N.W.2d 21, 28 (Minn. 2013). A
jury instruction error is prejudicial if the defen dant carries her “heavy burden” and shows
“there is a reasonable likelihood that giving the instruction in question had a significant
effect on the jury verdict.” State v. Kelley, 855 N.W.2d 269, 283 (Minn. 2014) (quoting
State v. Gomez, 721 N.W.2d 871, 880 (Minn. 2006)).
Johnson contends that the district court’s plain error affected her substantial rights
because she was acquitted of the only charge that satisfied subdivision 1(b)(2). While
Johnson was charged with selling marijuana in a school zone,
4 and subdivision 1(b)(2)
includes sale of marijuana in a school zone as one of its enumerated offenses, the jury
acquitted Johnson of that charge. Because the jury nonetheless convicted Johnson of
violating subdivision 1(b)(2), she argues that the jury must have followed the erroneous
jury instruction and determined that possessing marijuana in the fifth degree in the presence
of a child was sufficient to violate subdivision 1(b)(2).

4 Johnson does not contest that her apartment was in a school zone. See Minn. Stat.
§ 152.024, subd. 1(4)); Minn. Stat. § 152.01, subd. 14a (2016) (defining “school zone”).
8
The state responds that it does not matter that Johnson was acquitted of selling
marijuana in a school zone. Convicting a defendant under the child endangerment statute
does not require that the state prove the defendant committed the enumerated offenses in a
child’s presence; rather, subdivision 1(b)( 2) requires the jury to find that the defendant
“knowingly . . . permitt[ed] the child to be present” where “any person” is violating one of
the enumerated offenses. Minn. Stat. § 609.378, subd. 1(b)(2) (emphasis added). Here,
Hamilton testified that he sold marijuana in the presence of their daughter at their
apartment, which is in a school zone. Accordingly, the state argues the erroneous
instruction was not prejudicial because the jury may have found that Johnson knowingly
permitted their child to be present while Hamilton sold marijuana at their apartment .
Johnson responds that the jury’s acquittal on the school-zone-sale charge must have meant
the jury accepted Hamilton’s testimony that Johnson had no knowledge of his marijuana
sales.
We conclude that the jury may have convicted Johnson of child endangerment on
the grounds of fifth-degree marijuana possession. We must therefore determine if it is
reasonably likely that the jury would not have convicted Johnson of child endangerment if
it had received proper instruction. Kelley, 855 N.W.2d at 283 . In Watkins, the supreme
court identified three factors to resolve this issue: “whether: (1) the defendant contested the
omitted element and submitted evidence to support a contrary finding, (2) the State
submitted overwhelming evidence to prove that element, and (3) the jury’ s verdict
nonetheless encompassed a finding on that element.” 840 N.W.2d at 29. The state offers
“overwhelming” evidence to prove a particular element if the “quantum of evidence” is
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“considerable” or “ample” depending on the “analysis of any other relevant factors in a
substantial-rights analysis.” Huber, 877 N.W.2d at 527. The Watkins factors are not the
exclusive test, however, and appellate courts may consider other factors when determining
if the instruction had a significant effect on the jury’s verdict. Washington-Davis, 881
N.W.2d at 543 n.13.
The first Watkins factor weighs in Johnson’s favor. In State v. Peltier, the defendant
did not contest the erroneously omitted element from the jury instructions, and the court
concluded that this factor weighed against her. 874 N.W.2d 792, 800 (Minn. 2016). In
contrast, Johnson’s primary defense was that she did not know that Hamilton kept
controlled substances in the apartment, or that he was selling them from the apartment. See
also Huber, 877 N.W.2d at 526 (determining that appellant contested element of the law
that was erroneously omitted from jury instructions weighed in favor of determining that
the omission was prejudicial error).
The second Watkins factor also weighs in Johnson’s favor because the state did not
submit overwhelming evidence that Johnson knew Hamilton was selling controlled
substances from their apartment and in the presence of their child. In Huber, the supreme
court determined that the evidence against Huber was not sufficiently overwhelming to
ameliorate a jury instruction that did not clearly state that the jury must find the defendant
intentionally assisted the principal in a crime to be guilty of aiding and abetting in the
crime. 877 N.W.2d at 526-27. The court concluded there was no “direct evidence that”
Huber knew the principal was going to commit the crime and Huber did not admit that he
had agreed to assist with the crime. Id.
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In Johnson’s case, the state’s evidence that she endangered her child was not
overwhelming. The state did not submit evidence that Johnson was present at any of
Hamilton’s sales. Further, while the state argued that the contents of the apartment justified
the inference that Johnson knew controlled substances were in the apartment, it did not
present direct evidence that Johnson knew Hamilton was selling marijuana from the
apartment or, crucially, in the presence of their child.5
In regards to the third Watkins factor, the jury’s verdict did not encompass a finding
on the missing element. No other jury instruction compensated for the district court’s
misstatement of the law and so no other jury finding compensated for the plainly erroneous
instructions. Accordingly, this factor supports Johnson’s position. Watkins, 840 N.W.2d
at 29.
In addition to concluding that the Watkins factors favor a new trial, we conclude
there is a reasonable likelihood that the plainly erroneous jury instructions led the jury to
find Johnson guilty of endangering her child based on her possession of marijuana in the
child’s presence because this was one of the offenses the jury found Johnson committed.
Johnson has carried her burden and shown that the district court’s error “had a significant
effect on the jury’s verdict” and that the error affected her substantial rights.

5 We acknowledge that, based on the evidence that the state presented, the jury could have
found Johnson guilty of violating subdivision 1(b)(2) based on her knowledge of
Hamilton’s sales and the ongoing presence of their daughter. The applicable standard here,
however, is whether that evidence was overwhelming. We conclude it was not. See Huber,
877 N.W.2d at 526 (acknowledging there was conflicting evidence regarding whether
defendant intentionally aided principal).
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C. Remanding the case is necessary “to protect the fairness, integrity, and
public reputation of judicial proceedings.”

In Huber, the supreme court ruled that a faulty jury instruction necessitated a new
trial because the instruction “prevented the jury from fully considering Huber’s defense”
and allowed the jury to convict Huber for actions that were insuf ficient to prove guilt for
the charged offense. 877 N.W.2d at 528. Here, the faulty instruction similarly allowed the
jury to convict Johnson of child endangerment based on actions that were not sufficient to
prove guilt for the charged offense. Also, the erroneous instruction prevented the jury from
fully considering Johnson’s defense that she did not know that Hamilton was selling
controlled substances in their child’s presence.
II. The district court erred by determining it lacked authority to stay the
adjudication of Johnson’s conviction of fifth-degree possession of marijuana.

This court reviews de novo a district court’s decision that it did not have the
authority to stay adjudication of a conviction. See State v. Pflepsen, 590 N.W.2d 759, 763
(Minn. 1999) (“Questions concerning the authority and jurisdiction of the lower courts are
legal issues subject to de novo review.”). A stay of adjudication “is a procedure whereby
the district court, upon a defendant’s guilty plea or a fact -finder’s determination of guilt,
does not adjudicate the defendant guilty but imposes conditions of probation.” State v.
Martin, 849 N.W.2d 99, 102 (Minn. App. 2014) (quotation omitted), review denied (Minn.
Sept. 24, 2014). Generally, district courts may stay adjudication only with the prosecutor’s
consent. Id. (citing Minn. Stat. § 609.095(b) (2012)). The legislature, however, has carved
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out narrow exceptions to this rule. 6 District courts may stay adjudication of a conviction
without the prosecutor’s consent if the of fender pleaded or was found guilty of violating
one of several enumerated statutes. Minn. Stat. § 152.18, subd. 1 (2014). The jury found
Johnson guilty of violating one of these enumerated statutes—fifth-degree possession of
marijuana under Minn. Stat. § 152.025, subd. 2(a)(1). Id.
At sentencing, Johnson asked the district court to say adjudication of her marijuana
possession conviction. The district court rejected the motion stating:
And so—but ignoring the jury verdict and granting a stay of
adjudication over the objection of the state is —is something I
don’t know, even if I was willing to do, I could do today,
Ms. Johnson. I don’t know if that remedy is available to the
court. What I’m saying is I don’t have the authority to do that
without the state’s permission.

Johnson contends that that the district court erred because it denied her motion based
on the mistaken impression that it lacked authority to grant it. We note that while the state
withheld its permission to stay adjudication, the state’s permission was not required under
section 152.18. The state agrees and does not oppose Johnson’s request for a remand.
Lastly, we note that section 152.18 contains exclusions and other qualifications that the
district court must consider when it decides whether to stay adjudication of Johnson’s
conviction. See Minn. Stat. § 152.18, subd. 1.

6 In the Drug Sentencing Reform Act (DSRA), the legislature enacted many new policies,
including changing Minn. Stat. § 152.18 to require, rather than merely allow, the district
court to stay adjudication of some offenders. While the parties’ briefs to this court mention
the DSRA, both parties agree that it does not apply to Johnson’s case. Thus, we apply the
pre-DSRA version of Minn. Stat. § 152.18 to Johnson’s case.
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Because the district court declined to exercise its discretion to stay, or not stay,
adjudication of Johnson’s guilt for fifth-degree possession of marijuana, we vacate
Johnson’s sentence on this count and remand so that the district court may exercise its
discretion consistent with the record and this opinion. See State v. DeLaCruz, 884 N.W.2d
878, 888 (Minn. App. 2016) (determining a district court failed to exercise its discretion
and remanding the case for further proceedings).
III. We do not address if the district court impermissibly imposed multiple
sentences for conduct arising out of a single behavioral incident.

Finally, Johnson argues that her sentences for child endangerment and possession
of paraphernalia must be vacated because they arose from the same behavioral incident as
the drug possession conviction and Minn. Stat. § 609.035, subd. 1(2014), provides that she
“may be punished for only one of the offenses.” Because we have reversed her child
endangerment conviction and vacated her sentence for drug possession, we decline to
address this issue.7
D E C I S I O N
Because we determine the district court plainly erred in its jury instructions on child
endangerment and substantially affected Johnson’s rights, we reverse Johnson’s conviction
of that charge and remand for a new trial. Additionally, we reverse and vacate Johnson’s

7 We note, however, that Minn. Stat. § 609.035, subd. 1, does not apply to petty
misdemeanors, such as Johnson’s paraphernalia-possession conviction, because petty
misdemeanors are not “offenses.” State v. Krech, 312 Minn. 461, 464 n.2, 252 N.W.2d
269, 272 n.2 (1977); see also Minn. Stat. § 152.092 (defining possessing drug
paraphernalia as a petty misdemeanor).
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sentence for fifth-degree possession of marijuana and remand for resentencing so the
district court may exercise its discretion consistent with the record and this opinion.
Reversed and remanded.