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This opinion will be unpublished and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
A17-1351

State of Minnesota,
Respondent,

vs.

Kao Vang,
Appellant.

Filed July 23, 2018
Affirmed in part, reversed in part, and remanded
Klaphake, Judge*

Hennepin County District Court
File No. 27-CR-16-17275

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

Michael O. Freeman, Hennepin County Attorney, Kelly O’Neill Moller, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Jessica Merz Godes, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Schellhas, Presiding Judge; Hooten, Judge; and
Klaphake, Judge.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.

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U N P U B L I S H E D O P I N I O N
KLAPHAKE, Judge
Kao Vang challenges his conviction of first -degree possession of a controlled
substance based upon an improper jury instruction and his sentence. Because the district
court’s jury instruction about Vang’s right not to testify did not prejudice him, we affirm
his conviction. But we reverse and remand for resentencing in accordance with the Drug
Sentencing Reform Act (DSRA), as interpreted in State v. Kirby, 899 N.W.2d 485 (Minn.
2017).
D E C I S I O N
Vang argues that the district court erred by instructing the jury not to draw an
adverse inference from his exercising his right not to testify without first obtaining Vang’s
personal consent on the record. Although a district court must obtain a defen dant’s
personal on-the-record consent before giving the no -adverse-inference instruction, Vang
did not object, so we review his claim under the plain-error standard. State v. Darris, 648
N.W.2d 232, 240 (Minn. 2002). This standard requires Vang to demonstrate a plain error
that affected his substantial rights. Id. The state concedes that the district court plainly
erred, but argues that Vang is not entitled to relief because the instruction was harmless.
See State v. Gomez , 721 N.W.2d 871 , 880 (Minn. 2 006) (stating that a n erroneous no -
adverse-inference instruction is harmless without a showing of prejudice ). Prejudice is
demonstrated when the re is a reasonable likelihood that the erroneous instruction had a
significant effect on the jury verdict, but a defendant bears “ a heavy burden of showing
that substantial rights have been affected.” Id.

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Vang argues that the instruction prejudiced him because his credibility was central
to the case. When credibility is the central issue, the no-adverse-inference instruction may
prejudice a defendant by improperly emphasizing the defendant’s failure to testify. State
v. Duncan, 608 N.W.2d 551, 558 (Minn. App. 2000), review denied (Minn. May 16, 2000).
But in Duncan, we determined that the no-adverse-inference instruction was harmless and
did not require reversal. Id. Vang offers no case where a Minnesota court has reversed a
conviction solely because of an erroneous no -adverse-inference instruction , and the
premise of Vang’s argument—that his credibility was the dispositive factor in his case—is
contradicted by the record. Vang had confessed to and was convicted of first -degree
possession of 25 or more grams of methamphetamine after methamphetamine and drug
paraphernalia were found in his bedroom. Because of the strong evidence of his guilt on
the possession offense, his credibility was not central to his case, and so, the error in the
jury instruction had no significant effect on the verdict.
Vang next argues, and the state agrees, that he is entitled to res entencing under the
DSRA. Even with the state’s concession, we must decide cases in accordance with the
law. State v. Hannuksela, 452 N.W.2d 668, 673 n.7 (Minn. 1990). We conclude that Kirby,
which was decided less than two months after the district cou rt sentenced Vang, entitles
Vang to resentencing. 899 N.W.2d at 487. In Kirby, the supreme court ruled that the
“amelioration doctrine requires the resentencing of a person whose conviction was not yet
final on the effective date of section 18(b) of the Drug Sentencing Reform Act.” Id. Kirby
instructs that a defendant is entitled to resentencing under the DSRA if the legislature did
not clearly demonstrate its intent to abrogate the amelioration doctrine in enacting a

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particular section of the DSRA, the ameliorated section of the DSRA mitigates the
defendant’s punishment by reduci ng the presumptive sentences from those in the
sentencing grid under which the defendant was punished, and the defendant has not had
final judgment entered in his case. Id. at 190. Vang meets each of these requirements.
Section 18 of the DSRA mitigates Vang’s punishment by reducing his presumptive
sentence from the sentencing grid under which he was punished. A defendant’s
presumptive sentence is typically determined by the Sentencing Guidelines in effect on the
date of the offense . See id. at 493 (discu ssing the Minnesota Sentencing Guidelines).
Vang’s offense occurred on April 21, 2016, more than three months before the DSRA went
into effect. Id. at 488 (explaining that section 18 of the DSRA became effective on May
22, 2016); Minn. Sent. Guidelines 4 .C (2016) (“Eff. August 1, 2016” ). Under the 2015
sentencing guidelines, Vang’s first-degree controlled-substance crime was a severity-level-
nine offense. Minn. Sent. Guidelines 4.A (2015). After factoring in Vang’s criminal -
history score of one, the pre-DSRA guidelines gave him a presumptive sentence of 84 to
117 months. Id. The district court sentenced Vang to 84 months in prison, explaining that
it was “willing to give [Vang] the bottom of the box.” But under the DSRA, Vang’s first-
degree controlled-substance crime is a severity-level-eight offense. Minn. Sent. Guidelines
4.C. Factoring in Vang’s criminal-history score of one, the DSRA guidelines provide for
him to receive a presumptive sentence of 64 to 90 months. Id. The DSRA thus reduces
Vang’s punishment by reducing his presumptive sentence.

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Second, section 18’s effective date was May 2 2, 2016. Kirby, 899 N.W.2d at 488.
The district court sentenced Vang on June 5, 2017, so his conviction was not final when
the DSRA became effective.
Because section 18 of the DSRA reduced Vang’s presumptive sentence and because
no final judgment had been entered in Vang’s case at the time section 18 went into effect,
Vang is entitled to resentencing under the DSRA.
Affirmed in part, reversed in part, and remanded.