Berry Alan Willis, petitioner, Appellant,

This opinion will be unpublished and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
A17-1001

Berry Alan Willis, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed March 5, 2018
Affirmed
Florey, Judge

Hennepin County District Court
File No. 27-CR-14-6683

Cathryn Middlebrook, Chief Appellate Public Defender, Andrea Barts, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

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

Michael O. Freeman, Hennepin County Attorney, Brittany D. Lawonn, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Considered and decided by Florey, Presiding Judge; C onnolly, Judge; and Jesson,
Judge.
U N P U B L I S H E D O P I N I O N
FLOREY, Judge
In 2014, a jury fou nd appellant Berry Alan Willis gu ilty of aggravated forgery.
Appellant timely filed a postc onviction petition, arguing th at his conviction should be
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reversed because the district court’s jury inst ructions directed a verd ict on an element of
the offense. The postconviction court denied relief. We affirm.
FACTS
Appellant was charged with aggravated forgery under Minn. Stat. § 609.625, subd.
3 (2012), after he filed a quitclaim deed pur porting to transfer residential property from
P.H. to appellant for $500 or less. The residential property had previously been owned by
appellant, but P.H. purchased the property after appellant lost the property in foreclosure.
At trial, P.H. testified that she did not agree to sell the h ouse to appellant and that the
signature on the quitclaim deed was not hers. Appellant testified in his defense that P.H.
agreed to sell the property to him, that he drafted the quitclaim deed and mailed it to P.H.,
and that the quitclaim deed was returned to him by mail with P.H.’s signature affixed to it.
In the final instructions to the jury, the district court defined aggravated forgery as,
“whoever with intent to defra ud utters or possesses with in tent to utter a forged writing
knowing it was forged is guilty of a crime.” The district court then defined “forged writing”
as a “writing that, if genuine, would create or transfer legal rights or obligations, and that
has been so made or altered that it purports to have been made by a person other than the
person who actually made it or that has been made under an assumed or fictitious name.”
The district court then identified the elements of aggrav ated forgery. It identified
the first two elements as: “Fir st, the quitclaim deed was fo rged. This means that the
quitclaim deed was falsely made or altered by a person, not necessarily the defendant, so
that it appeared to be made by another person; [s]econd, the defendant knew the quitclaim
deed was forged.” The district court instructed the jury that the third and fourth elements
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required the jury find that “the defendant uttered the forged quitclaim deed or possessed
[it] with the intent to utter it” and that the defendant did so with the intent to defraud
someone.
The jury returned a guilty verdict, and the district court entered a judgment of
conviction on the sole charge.1 In 2017, appellant filed a petition for postconviction relief.
He argued that the district court’s jury instructions directed a verdict on an element of the
offense by indicating that a quitclaim deed was a writing that, if genuine, would create or
transfer legal rights. He argued that the erroneous instruction amounted to structural error
requiring a reversal of the conviction. The postconviction court summarily denied the
petition, concluding that the instruction correctly stated the law and did not direct a verdict
on an element of the offense. The postco nviction court indicated that, even if the
instruction was erroneous, it was a matter of omitting an element rather than directing a
verdict on an element of the offense, and such an omission was harmless.
This appeal followed.
D E C I S I O N
“We review the denial of a petition for postconviction relief for an abuse of
discretion.” Matakis v. State , 862 N.W.2d 33, 36 (Minn. 2015). We review any legal
issues de novo and review any factual issues under the clearly erroneous standard. Colbert
v. State, 870 N.W.2d 616, 621 (Minn. 2015). “We will not reverse an order unless the

1 The district court ordered appellant to pay restitution to P.H. a nd her son. Appellant
timely appealed the restitution order in 2016, but did not seek a direct appeal of the forgery
conviction. See State v. Willis , 883 N.W.2d 838 (Minn. App. 2016), rev’d, 898 N.W.2d
642 (Minn. 2017).
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postconviction court exercised its discretion in an arbitrary or capricious manner, based its
ruling on an erroneous view of the law, or made clearly erroneous factual findings.”
Matakis, 862 N.W.2d at 36 (quotation omitted).
District courts have considerable latitude in selecting the precise language to be used
in jury instructions. State v. Pendleton, 567 N.W.2d 265, 268 (Minn. 1997). We examine
jury instructions as a whole to determine if they fairly and accurately state the law in a
manner that can be unde rstood by the jury. Gulbertson v. State , 843 N.W.2d 240, 247
(Minn. 2014); State v. Kelley , 855 N.W.2d 269, 274 (Minn. 2014). An instruction is
erroneous if it materia lly misstates the law. Pendleton, 567 N.W.2d at 268. The district
court must “clearly instruct the jury on exactly what it is they must decide.” State v. Hersi,
763 N.W.2d 339, 342 (Minn. App. 2009) (citing Rosillo v. State , 278 N.W.2d 747, 749
(Minn. 1979)).
The aggravated-forgery statute under whic h appellant was charged, Minn. Stat.
§ 609.625, subd. 3, provides that “[w]hoever, w ith intent to defraud, utters or possesses
with intent to utter any forged writing or object mentioned in [Minn. Stat. § 609.625, subd.
1 (2012)] . . . knowing it to have been so forged,” is guilty of a crime. Subdivision 1 limits
culpability for aggravated forgery to certain writings or objects, including “a writing or
object whereby, when genuine, legal rights, privileges, or obligations are created,
terminated, transferred, or evidenced, or any writing normally relied upon as evidence of
debt or property rights . . . .” Minn. Stat. § 609.625, subd. 1(1).
At issue in this case is wh ether the district court should have included the language
of Minn. Stat. § 609.625, subd. 1(1), in the el ements of the offense provided to the jury.
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The instruction used by the district court is a modified version of the instruction found in
10A Minnesota Practice, CRIMJIG 19.04 (2015). CRIMJIG 19.04 directs a district court
to place a “[w]riting or object listed in [Minn. Stat.] § 609.625, subd. 1” into a blank space
within the first element: “First , the ______ was forged.” 10A Minnesota Practice ,
CRIMJIG 19.04 n.1. Appellant argues that the district court should have entered the text
of subdivision 1(1) into the blank space, or asked the jury to determine if a quitclaim deed
meets the description contained in subdivision 1(1). Appellant argues that, by inserting
“quitclaim deed” into the first element, without a finding by the jury that the quitclaim deed
qualified as a writing described in subdivision 1, the district court directed a verdict on an
element of the crime. The state argues that inserting “quitclaim deed” into the instruction
was not “legally incorrect” because “wheth er a [quitclaim] deed constituted a writing
pursuant to Minn. Stat. § 609.625, subd. 1(1) , was not in question.” The postconviction
court concluded that the district court was permitted to place “quitclaim deed” into the
instructions without asking th e jury whether it qualified as a writing under Minn. Stat.
§ 690.625, subd. 1(1), because it was a question of law rather than a question of fact.
The Sixth Amendment to th e United States Constitutio n “indisputably entitles a
criminal defendant to a jury de termination that he is guilty of every element of the crime
with which he is charged, beyond a reasonable doubt.” State v. Her, 862 N.W.2d 692, 695
(Minn. 2015) (quotations omitted). All elements of the charged crime are to be decided by
the jury, even if evidence relating to an element is uncontradicted. State v. Carlson, 268
N.W.2d 553, 560 (Minn. 1978). A district court “may not instruct the jury that any of the
elements of the offense have been proven beyond a reasonabl e doubt, absent a judicial
6
admission by the defendant of any of the elements.” State v. Perkins , 353 N.W.2d 557,
561 (Minn. 1984).
The parties do not dispute that, in order fo r a defendant to be guilty of aggravated
forgery under section 609.625, subdivision 3, the writing or object at issue must be or
purport to be an object or writing menti oned in Minn. Stat. § 609.625, subd. 1. See State
v. Mousel, 371 N.W.2d 655, 656-57 (Minn. App. 1985) (concluding that the evidence was
sufficient to support an aggr avated forgery conviction wh ere the document at issue
pretended to be “one of th e ‘kinds’ of writings covere d by the forgery statute”). Nor do
the parties dispute that a quitclaim deed would ordinarily satisfy the requirements of Minn.
Stat. § 609.625, subd. 1(1). See Black’s Law Dictionary 477 (9th ed. 2009) (defining
“quitclaim deed” as “[a] deed that conveys a grantor’s complete interest or claim in certain
real property but that neither warrants nor professes that the title is valid”). The question
presented is whether it was error for the distri ct court to place “qu itclaim deed” into the
instructions without requiring the jury to find that a quitclaim deed is “a writing or object
whereby, when genuine, legal rights, privileg es, or obligations are created, terminated,
transferred, or evidenced, or any writing nor mally relied upon as evidence of debt or
property rights.” See Minn. Stat. § 609.625, subd. 1(1). We conclude that the district court
did not err.
A district court invades the province of the jury when, instead of instructing the jury
on the law, it applies the law to facts that are determined after assessing the probative value
of evidence introduced at trial. United States v. White Horse , 807 F.2d 1426, 1430 (8th
Cir. 1986). For example, in United States v. Gaudin , the United States Supreme Court
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determined that a district court infringed a defendant’s right to have a jury decide all
elements of an offense when it declined to submit to the jury the issue of materiality of a
false statement. 515 U.S. 506, 523, 115 S. Ct. 2310, 2320 (1995). In so doing, the Supreme
Court examined whether the issue of mate riality was purely a le gal question to be
determined by the judge. Id. at 511-12, 115 S. Ct. at 2314. The Supreme Court determined
that the question was a mixed question of law and fact to be decided by the jury because it
required application of the legal standard of “materiality” to “purely historical fact[s].” Id.
at 512, 115 S. Ct. at 2314. To establish whether a false statemen t was material to an
agency’s decision, a jury would be required to ask two fact-specific questions: (1) “what
statement was made?” and (2 ) “what decision was the ag ency trying to make?” Id.
(quotations omitted). To answer the ultimate question of whether the statement was
material required the jury to apply the legal standard of materiality to the jury’s answers to
those factual questions. Id.; see also White Horse, 807 F.2d at 1430-31 (concluding that a
jury was deprived of the ability to decide essential facts wh en the judge decided that a
telephone authority was an I ndian tribal organization as defined by statute, a question
which required an evaluation of the probative value of evidence to determine if there was
a sufficient nexus between the telephone authority and the tribe).
In State v. Moore, the Minnesota Supreme Court examined whether a district court
removed an element of the offe nse from the jury’s considera tion when the district court
defined “great bodily harm,” a required elemen t of first-degree assault, as including a
permanent loss of the function of a part of the body, and then informed the jury that “loss
of a tooth is a permanent loss of the function of a bodily member.” 699 N.W.2d 733, 736
8
(Minn. 2005). The supreme court determined that the district court’s instruction removed
from the jury’s consideration the question of whether the lo ss of the tooth amounted to
great bodily harm. Id. at 737.
Unlike the issues in Gaudin, Whitehorse, and Moore, which required consideration
of evidence adduced at trial and the application of a lega l standard to that evidence, the
issue of whether a quitclaim deed is “a writi ng or object whereby, when genuine, legal
rights, privileges, or obligations are created, terminated, transferred, or evidenced, or any
writing normally relied upon as evidence of debt or propert y rights” does not require a
determination of “purely histor ical fact[s]” nor an assessmen t of the probative value of
evidence introduced at trial. See Gaudin, 515 U.S. at 512, 115 S. Ct. at 2314; Whitehorse,
807 F.2d at 1430. A quitclaim deed, by definition, is a writing that transfers legal rights in
property. This determination required no pr obative assessment of evidence presented at
trial, nor did it require the application of a legal standard to evidence adduced during the
trial. A quitclaim deed, regard less of case-specific facts, sa tisfies Minn. Stat. § 609.625,
subd. 1(1). The absence of an instruction requiring the jury to find that a quitclaim deed
satisfies the statutory element was not error.2
Appellant also argues that the omission of the language of Minn . Stat. § 609.625,
subd. 1(1), from the jury instruction, and its replacement with the phrase “quitclaim deed,”

2 Our holding is limited to the issue of whether a quitcla im deed satisfies Minn. Stat.
§ 609.625, subd. 1(1). In other circumstances or with other writings, there may be a factual
question that will require the district court to present to the jury the question of whether the
writing or object at issue meets the description of a writing or object mentioned in Minn.
Stat. § 609.625, subd. 1.
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constituted structural error requiring reversal. See Moore, 699 N.W.2d at 738 (concluding
that a directed verdict on an element of an offense requires reversal); see also Rose v. Clark, 478 U.S. 570, 578, 106 S. Ct. 3101, 3106 (1986) (indicating that “harmless-error analysis
presumably would not apply if a court directed a verdict for the prosecution in a criminal
trial by jury”); State v. Nunn , 351 N.W.2d 16, 19 (Minn. App. 1984) (concluding that it
was fundamental error for the di strict court to inform the ju ry that a robbery occurred,
where it was “an essential element of the o ffense” of aggravated robbery (quotation
omitted)).
Although we conclude that it was not error to omit the language in this case, even if
it were, we conclude it would be an omission of an element from the jury’s consideration,
reviewed for harmless error or plain error, rath er than structural e rror. The jury was not
presented with the question of whether a quitc laim deed qualified as a writing mentioned
in Minn. Stat. § 609.625, subd. 1, nor did appellant request an instruction. The Minnesota
Supreme Court has previously considered unobjected-to instructions that fail to present an
element to the jury as subj ect to plain-error review. State v. Watkins, 840 N.W.2d 21, 27
(Minn. 2013); State v. Vance, 734 N.W.2d 650, 660-661 (Minn. 2007), overruled on other
grounds by State v. Fleck, 810 N.W.2d 303 (Minn. 2012); see also Neder v. United States, 527 U.S. 1, 16, 119 S. Ct. 1827, 1837 (1999) (concluding that the omission of the element
of “materiality” from jury consideration is subject to harmless-error analysis, and that the
omission was harmless because the element wa s not contested at trial and supported by
ample evidence).
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Under a plain-error analysis, even if ther e was an error in th e jury instructions,
appellant is unable to establis h that his substantial rights we re prejudiced by the district
court’s failure to instruct th e jury on whether a quitclaim deed satisfies Minn. Stat.
§ 609.625, subd. 1(1). When c onsidering whether an error was sufficiently prejudicial to
require reversal, we consider, “among other fact ors, 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.” Watkins, 840 N.W.2d at 29; see State
v. Ihle, 640 N.W.2d 910, 917 (Minn. 2002) (i ndicating that an omission of a required
instruction is harmless error when “there is no reasonable likelihood that a more accurate
instruction would have changed the outcome).
Appellant did not contest the issue of whether a quitclaim deed qualified as a writing
under the statute at trial. On cross-examina tion, appellant agreed that a deed transfers
property rights from one person to another, and did not deny that the writing at issue was
intended to create or transfer rights. Nor di d he make argument or present evidence to
contest the omitted element. During closing argument, counse l for appellant agreed that
appellant filed the quitclaim deed “so he c ould have some interest in the home.” The
supreme court has reversed convictions where the omitted element was contested at trial
and evidence was presented on both sides of the issue, see Vance, 734 N.W.2d at 661, State
v. Willliams, 324 N.W.2d 154, 158 (Minn. 1982), but here, appellant neither contested the
issue of whether a quitclaim deed would tran sfer rights, nor did he present evidence
indicating that it was not intended to represent a transfer of property rights. Even if it was
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error to omit an instruction requiring the jury to consider whether a quitclaim deed qualifies
as a writing under Minn. Stat. § 609.625, subd. 1, appellant has not established that he was
prejudiced thereby.
Affirmed.