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This opinion will be unpublished and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
A17-1192

State of Minnesota,
Respondent,

vs.

Geoffrey Robinson,
Appellant.

Filed July 9, 2018
Affirmed
Florey, Judge

Dakota County District Court
File No. 19HA-CR-17-46

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

James C. Backstrom, Dakota County Attorney , Anna Light, Assistant County Attorney,
Hastings, Minnesota (for respondent)

Cathryn Middlebrook, Chief Ap pellate Public Defender, Benjamin J. Butler, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Bjorkman, Pr esiding Judge; Larkin, Judge; and Florey,
Judge.
U N P U B L I S H E D O P I N I O N
FLOREY, Judge
Appellant Geoffrey Robinson challenges his conviction of felony possession of
burglary or theft tools, arguing that (1) the di strict court erroneously directed a verdict on

2
an element of the offense; (2) the district c ourt’s jury instructions were erroneous; and
(3) he received ineffective assistance of trial counsel. Because we discern no error, we
affirm.
FACTS
In May 2017, a jury found appellant Geoffrey Robinson guilty of felony possession
of burglary or theft tools and of misdemeanor theft as a result of his actions on December
31, 2016. On that date, appe llant pried open a store’s cash register with a hammer and a
screwdriver, removed approximately $200, and left the store. Using surveillance video, a
police officer captured a photograph of the suspect’s vehicle and identified it as belonging
to appellant. Officers later detained appellant and conducted a vehicle search. The search
uncovered a black fabric bag containing a scre wdriver, a hammer, a pair of pliers, and a
tag for another tool inside the car. The stat e charged appellant with felony possession of
burglary or theft tools in violation of Minn. Stat. § 609.59 (2016), and with misdemeanor
theft in violation of Minn. Stat. § 609.52, subds. 2(a)(1), 3(5) (2016). Following the jury’s
verdict, the district court adjudicated appellant guilty of both offenses and pronounced the
sentence. This appeal follows.
D E C I S I O N
I.
Appellant asserts that the district court erred by directing a verdict for the state on
an element of the offense of possessing burglary or theft tools. Appellant did not object to
the district court’s instructions at trial, and we review the unobjected-to jury instructions
for plain error. State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998). This standard involves

3
consideration of three factors: whether there was an error, whether the error was plain, and
whether it affected the defenda nt’s substantial rights. State v. Milton , 821 N.W.2d 789,
805 (Minn. 2012). If all thr ee prongs of plain-error review are satisfied, we consider
whether the error seriously affected the “f airness and the integrity of the judicial
proceedings.” Id. (quotation omitted).
A district court has “considerable latitude ” in the selection of language for jury
instructions, State v. Gatson, 801 N.W.2d 134, 147 (Minn. 2011), and “we will not reverse
where jury instructions overall fairly a nd correctly state the applicable law.” State v.
Hokanson, 821 N.W.2d 340, 356 (Minn. 2012). He re, the district court provided the
standard jury instructions for the elements of possessing burglary or theft tools. See 10
Minnesota Practice , CRIMJIG 16.97 (2017) (articulati ng elements of offense). The
standard jury instructions closely mirror th e language of the po ssession-of-burglary-or-
theft-tools statute, which provides that: “Whoever has in possession any device, explosive,
or other instrumentality with intent to use or permit the use of the same to commit burglary
or theft may be sentenced to imprisonment. . . .” Minn. Stat. § 609.59. While the word
“instrumentality” is not specifically defined in the statute, “instrumentality” is broadly
defined as “[a] thing used to achieve an end or purpose.” Black’s Law Dictionary 919
(10th ed. 2014); see also State v. Haywood , 886 N.W.2d 485, 4 90 (Minn. 2016) (stating
principle that courts may ascertain ordinary usage of words with the aid of dictionary
definitions).
The district court instructed the jury that the first element of the offense “is that the
defendant had in possession a hammer or scre wdriver for the purpose of the commission

4
of the theft.” Appellant contends that the district court should have used the words “device
or instrumentality” instead of the words “hammer and/or screwdriver” because whether a
particular object constitutes a “device or inst rumentality” is a fact question for the jury.
We disagree. The district court’s instructio ns, when viewed overall , fairly and correctly
state the applicable law. See Hokanson, 821 N.W.2d at 356; see also State v. Bowen, 910
N.W.2d 39, 47-48 (Minn. App. 2018) (rejecti ng defendant’s argument that court directed
verdict by using phrase “bottle of liquor” in place of “personal property” because “that
issue is not a question of fact, nor does it require the application of law to facts”).
Appellant failed to demonstrate that the district court plainly erred in its instructions
to the jury. If we determine upon review that any one of the three prongs of the plain-error
test is not satisfied, we need not address the remaining elements. Montanaro v. State, 802
N.W.2d 726, 732 (Minn. 2011). Having concluded that appellant failed to establish error,
we do not consider whether the error was pl ain or whether his substantial rights were
affected.
II.
Appellant argues that the district court erred by not orally restating the jury
instructions in their entirety at the close of trial. Appellant did not object to the jury
instructions at trial, and we again review for plain error. Griller, 583 N.W.2d at 740.
Appellant must demonstrate that there was an error, that the error wa s plain, and that the
error affected appellant’s substantial rights. Milton, 821 N.W.2d at 805. If these elements
are satisfied, the reviewing court “may correct the error only if it seriously affects the
fairness, integrity, or public reput ation of judicial proceedings.” State v. Taylor , 869

5
N.W.2d 1, 15 (Minn. 2015) (a lteration and quotations omitted ). If we conclude that any
prong of the plain-error analysis is not sa tisfied, we need not c onsider the remaining
prongs. State v. Brown, 815 N.W.2d 609, 620 (Minn. 2012).
We determine that the district court’s ju ry instructions were not erroneous. “An
error is plain if it is clear or obvious, and usually this is shown if the error contravenes case
law, a rule, or a standard of conduct.” State v. Davis, 735 N.W.2d 674, 681 (Minn. 2007).
In reviewing jury instructions for error, we “review the inst ructions in their entirety to
determine whether they fairly and adequately explain the law. An instruction that
materially misstates the law is erroneous.” Gatson, 801 N.W.2d at 147 (citation omitted).
A district court may give preliminary instructions “[a]fter the jury has been impaneled and
sworn, and before the opening statements.” Minn. R. Crim. P. 26.03, subd. 4. With respect
to the final instructions, “[t]he [district] court may instruct the jury before or after [closing]
argument. Preliminary instructions need not be repeated.” Minn. R. Crim. P. 26.03, subd.
19(5). Moreover, adequate information on the topics of circumstantial evidence and the
credibility of witnesses, given at the start of the trial, “need not be repeated in final
instructions.” State v. Duemke, 352 N.W.2d 427, 432 (Minn. App. 1984).
Here, after the jury was impaneled and swor n, the district court distributed written
jury-instruction booklets to the jurors. The district court delivered a number of preliminary
instructions and instructed the jurors on the elements of the charged offenses. Following
the close of testimony, the district court provi ded final instructions. The district court
reiterated that appellant was presumed innocent of the charges against him and referred the

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jury to the instruction booklet to review the elements of the offenses. We discern no error
in the district court’s instructions to the jury.
Appellant argues that the district court erred by not orally restating the elements of
the offense at the close of trial and relies on Peterson for the principle that a court must
orally instruct the jury “on exactly what it is that they must decide.” 673 N.W.2d 482, 485
(Minn. 2004). In that case, the district cour t provided preliminary instructions on the
presumption of innocence and the definition of proof beyond a reasonable doubt, but did
not reread those instructions in its final instructions to the jury. Id. at 484-85. The
Minnesota Supreme Court held that omitting those instructions from the final jury charge
constituted a constitutional defect because “[t]he presumption of innocence is a
fundamental component of a fair trial under our criminal justice system” and “[t]he
reasonable doubt standard of proof provides concrete substance fo r the presumption of
innocence.” Id. at 486 (quotation omitted). This case is distinguishable from Peterson.
Here, the district court reiterated in its fina l instructions that appellant was presumed
innocent of the charges against him and reminded the jurors that the state bore the burden
of proof. Because the district court’s final instructions neither “ obscured” nor “diluted”
the state’s burden of proof, we determine that appellant is not entitled to a new trial on the
ground that the jury instructions were erroneous. Id. at 487.
III.
Appellant contends that he was denied effective assistance of trial counsel because
his attorney failed to present a complete defense. Ineffective-assistance-of-counsel claims

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are reviewed de novo. State v. Rhodes , 657 N.W.2d 823, 842 (Minn. 2003) (citing
Strickland v. Washington, 466 U.S. 668, 698, 104 S. Ct. 2052, 2070 (1984)).
To prevail on his claim, appellant must sh ow “(1) that his counsel’s representation
‘fell below an objective standard of reasona bleness’; and (2) ‘there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding would
have been different.’” Nissalke v. State , 861 N.W.2d 88, 94 (Minn. 2015) (quoting
Strickland, 466 U.S. at 688, 694, 10 4 S. Ct. at 2064, 2068). “The objective standard of
reasonableness is defined as representation by an attorney exercising the customary skills
and diligence that a reasonably competent attorney would perfo rm under similar
circumstances.” State v. Vang , 847 N.W.2d 248, 266-67 (Minn. 2014) (quotations
omitted). Trial counsel’s performance is pres umed reasonable, and we give “particular
deference to trial counsel’s strategic decisions. . . .” Schneider v. State, 725 N.W.2d 516,
521-22 (Minn. 2007). To demonstrate actual prejudice, appellant must prove that his
“claim is meritorious and that there is a reasonable probability that the verdict would have
been different” absent these errors. Kimmelman v. Morrison, 477 U.S. 365, 375, 106 S. Ct.
2574, 2583 (1986).
Appellant cannot prevail on his ineffective- assistance claims. First, appellant
claims that his counsel should have sought to dismiss the charges on Fourth Amendment
grounds. The Fourth Amendment protects the “ri ght of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures. . . .” U.S.
Const. amend. IV. A law-enforcement o fficer may temporarily seize an individual
suspected of criminal activity if the officer has specific , articulable facts that reasonably

8
warrant the stop. In re Welfare of M.D.R ., 693 N.W.2d 444, 448 (M inn. App. 2005). A
reasonable articulable suspicion is less than probable cause. State v. Waddell, 655 N.W.2d
803, 809 (Minn. 2003). In this case, the police officer had a reasonable, articulable
suspicion that appellant was in volved in a possible burglary . The officer had specific,
articulable facts warranting a temporary seizure. Therefore, trial counsel’s performance
did not fall below an objective standard of reasonableness because a Fourth Amendment
challenge regarding an illegal search and seiz ure would not have be en meritorious, and
there is not a reasonable probability that the verdict would have been different.
Kimmelman, 477 U.S. at 375, 106 S. Ct. at 2583. Next, appellant argues that his counsel
should have challenged the late disclosure of certain photographic evidence. A review of
the record reveals that the prosecutor did not seek to introduce this evidence at trial.
Accordingly, appellant’s trial counsel had no reason to object.
An assignment of error based on “mere assertion” and not supported by argument
or authority is waived unless prejudicial error is obvious on mere inspection. State v.
Wilson, 594 N.W.2d 268, 271 (Minn. App. 19 99). Because appellant’s ineffective-
assistance-of-counsel claim is unsupported by argument or authority and because
prejudicial error is not obvious on mere insp ection, we conclude that appellant is not
entitled to relief on his ineffective-assistance-of-counsel claim.
Affirmed.