State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-1245

State of Minnesota,
Respondent,

vs.

Trezjaun Caprise Sims,
Appellant.

Filed July 15, 2019
Reversed and remanded
Rodenberg, Judge

Hennepin County District Court
File No. 27-CR-17-26809

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Michael O. Freeman, Hennepin Coun ty Attorney, Linda K. Jenny, A ssistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Christopher L. Mishek, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Roden berg, Presiding Judge; Cleary, Chief Judge; and
Bjorkman, Judge.
U N P U B L I S H E D O P I N I O N
RODENBERG, Judge
In this direct appeal from his conviction for fifth-degree con trolled-substance crime
under Minn. Stat. § 152.025, subd . 1(1) (2016), appellant Trezj aun Sims argues that the

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district court plainly erred in i nstructing the jury concerning the threshold weight of
marijuana required to support his conviction. He also argues t hat the district court
erroneously instructed the jury that it need not consider lesser-included charges if it found
appellant guilty of the most-serious charge. We agree with both challenges, and therefore
reverse appellant’s conviction and remand to the district court for a new trial. We do not
reach appellant’s other claims of error.1
FACTS
Appellant was driving his mother’s car, with his girlfriend, J. W., as the front-seat
passenger, when he was stopped for a traffic violation. This t raffic stop ultimately led to
the discovery of what the state measured to be 42.693 grams of marijuana in the car,
packaged in 28 individually wrapped bags. The state charged ap pellant with fifth-degree
controlled-substance crime, inten t to sell marijuana under Minn . Stat. § 152.025, subd.
1(1), and fifth-degree controlled substance crime, possession o f not a small amount of
marijuana under Minn. Stat. § 152.025, subd. 2(1) (2016).2

1 Appellant also argues that (1) t he circumstantial evidence is insufficient to prove
appellant possessed the marijuana or, if he did possess it, that he possessed it with the intent
to sell; (2) it was plain error for the district court to allow expert opinion testimony that the
marijuana was packaged with the intent to sell; and (3) his con viction for possession of
greater than a small amount of marijuana is a lesser-included o ffense of count 1 and must
be vacated. The state agrees that the district court erred whe n it entered a conviction on
the fifth-degree possession charge, a count on which the jury returned no verdict, because
it had been instructed that it “need not decide” the remaining counts if it found that
appellant was guilty of the possession-with-intent-to-sell charge.

2 The district court granted ap pellant’s motion to add a lesser- included charge for petty
misdemeanor—possession of small amount of marijuana under Minn. Stat. § 152.027,
subd. 4 (2016).

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At trial, a forensic analyst from the Minnesota Bureau of Crimi nal Apprehension
(BCA) testified that she weighed the 28 bags of marijuana indiv idually, finding an
aggregate weight of 42.693 grams. The analyst testified that t he respective weights for
bags has an “uncertainty” of plus-or-minus 0.005 grams, with a 95% certainty that the true
weight falls within that range. At the close of evidence, the district court instructed the
jury on the elements of the charged offenses. The district court instructed the jury that the
state was required to prove beyond a reasonable doubt that appellant possessed “42.5 grams
or more” of marijuana. It instructed the jury that, if it concluded that appellant was guilty
of that charge (count 1), it “n eed not decide” the other counts . The jury found appellant
guilty of possession with intent to sell, and, as instructed, returned no verdicts on the other
counts. Nevertheless, the distr ict court entered convictions f or both possession and
possession with intent to sell (counts 1 and 2).
This appeal followed.
D E C I S I O N
Jury Instruction on Weight of Marijuana
Appellant argues that the district court plainly erred by instructing the jury that the
state was required to prove that the marijuana had a total weight of “42.5 grams or more.”
He argues that the proper instruction should have been “more than 42.5 grams.”
Jury instructions, reviewed in their entirety, must fairly and adequately explain the
law. State v. Peltier, 874 N.W.2d 792, 797 (Minn. 2016). Jury instructions that con fuse,
mislead, or materially misstate the law are erroneous. State v. Vang, 847 N.W.2d 248, 261
(Minn. 2014).

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Because appellant did not object to this instruction, his claim is subject to plain-
error review. Peltier, 874 N.W.2d at 799. Under a pl ain-error analysis, appellant m ust
establish (1) error, (2) that is plain, and (3) that the error affects his substantial rights. Id.
If all three of these requirements are met, we assess whether reversal is required to ensure
the fairness, integrity, or public reputation of judicial proceedings. Id.
“An error is plain if it is cl ear or obvious, which is typically established if the error
contravenes case law, a rule, or a standard of conduct.” State v. Webster, 894 N.W.2d 782,
787 (Minn. 2017) (quotation omitted). Jury instructions must define the crime charged and
explain the elements. State v. Milton, 821 N.W.2d 789, 805 (Minn. 2012). “To determine
if a jury instruction correctly s tates the law, we analyze the criminal statute and the case
law under it.” State v. Taylor, 869 N.W.2d 1, 15 (Minn. 2015).
A person who “unlawfully sells one or more mixtures containing marijuana or
tetrahydrocannabinols, except a small amount of marijuana for no remuneration” is guilty
of a controlled-substance crime i n t h e f i f t h d e g r e e . M i n n . S t at. § 152.025, subd. 1(1).
“Sell” means to “sell, give away , barter, deliver, exchange, di stribute or dispose of to
another, or to manufacture” or to possess with intent to perform one of the described acts.
Minn. Stat. § 152.01, subd. 15a (2016). Minnesota law defines small amount of marijuana
as “42.5 grams or less.” Id., subd. 16 (2016). In short, a conviction for fifth-degree
controlled-substance crime—intent to sell—requires that the sta te prove that appellant
intended to sell more than 42.5 g rams of marijuana, or intended to sell 42.5 grams of
marijuana or less for remuneration. Minn. Stat. § 152.025, subd. 1(1).

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A conviction for fifth-degree controlled-substance crime—posses sion of
marijuana—requires that the weight of the marijuana possessed not be a small amount. Id.,
subd. 2(1). Possession of 42.5 grams or less is a petty misdemeanor. Minn. Stat. § 152.027,
subd. 4. The state offered no evidence or argument concerning remuneration, and the case
was tried solely on the weight of the marijuana having made the marijuana not a “small
amount.” The weight of marijuana sufficient to make it not a “small amount” is more than
42.5 grams. But the district court instructed the jury that th e weight element for both the
intent to sell and possession of fenses required proof of 42.5 g rams or more . T h i s
instruction was error that is plain. The state agrees.3
We next consider whether the erroneous jury instruction affecte d appellant’s
substantial rights. An erroneous jury instruction affects a defendant’s substantial rights if
the error was prejudicial and affected the outcome of the case. State v. Huber, 877 N.W.2d
519, 525 (Minn. 2016). Stated differently, an erroneous jury in struction is prejudicial and
affects a defendant’s substantial rights if there is a reasonable likelihood that the instruction
had a significant effect on the jury’s verdict. Id.

3 As noted, the state did not argue at trial that appellant poss essed the marijuana with the
intent to sell it “for remuneration.” If the state had proven beyond a reasonable doubt that
appellant intended to sell the marijuana for remuneration, the weight of the drugs would be
irrelevant to a fifth-degree-intent-to-sell conviction. See State v. Blahowski, 499 N.W.2d
521, 526 (Minn. App. 1993) (explaining that a person is not required to possess more than
a small amount of marijuana in order to be guilty of possession with intent to sell if the
intended sale is for remuneration and that the state is not req uired to show a particular
intended transaction), review denied (Minn. June 22, 1993). A proper instruction, had the
case been so tried, would have required the jury to find either that the amount appellant
intended to sell was over 42.5 grams, or the amount was 42.5 grams or less and appellant
intended to sell the mar ijuana for remuneration. See 10A Minnesota Practice, CRIMJIG
20.34 (2015).

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The state presented evidence that the total weight of the mari juana in the 28 bags
weighed 42.693 grams. The BCA analyst weighed each bag individ ually, but never
weighed the marijuana in the aggregate. The BCA analyst testified that the weight of each
bag has an uncertainty of 0.005 grams or just “slightly outside of that” and that there was
a five percent possibility that the true weight of the drug samples was outside of the margin
of error range. The 0.005 per-bag margin of error, multiplied by 28 bags, puts the range of
the aggregate weight within the a greed-to margin of error as lo w as 42.553 grams. And
the BCA analyst conceded that the margin of error could be slightly more than 0.005 grams.
If the aggregate weight of the marijuana were to have been sub stantially above 42.5
grams, the district court’s definitional error would perhaps be harmless. But that is not so
here. We are dealing with fractions of a gram difference between the aggregate weight of
the marijuana and what the law defines as a “small amount.” Ap pellant contested the
weight of the marijuana, and the state did not provide overwhelming evidence to prove the
threshold amount. Cf. Huber, 877 N.W.2d at 526 (stating that whether the state presented
overwhelming evidence is one factor in determining whether plain error in jury instructions
affected appellant’s substantial rights). To the contrary, the state adduced evidence
showing that the weight of the marijuana was very close to the threshold amount. The
erroneous instruction, on these facts, affected appellant’s substantial rights.
Under the district court’s instruction, the jury could have fo und that the weight of
the marijuana was 42.5 grams and nevertheless convicted appella nt. We hold that this
erroneous jury instruction in this case affected appellant’s substantial rights because there
is a reasonable likelihood that the instruction had a significant effect on the jury’s verdict.

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As a result, we consider the fourth element of the plain-error test—whether granting
appellant a new trial is required to ensure the fairness, integ rity, and public reputation of
the judicial proceedings. A pla in error that affects substanti al rights, without more, does
not entitle a defendant to a new trial. Id. at 527. But the plain-error doctrine allows for a
new trial in those circumstances in which a miscarriage of just ice would otherwise result.
Id. at 528. The state’s limited, a nd contested, evidence concerni ng the weight of the
marijuana convinces us that fairn ess requires a new trial where appellant may have been
convicted of a felony for possessing a non-felony amount of marijuana.
Jury Instructions on the Order Concerning Consideration of the Charges
Appellant also argues that the district court erred by instructing the jury that it need
not decide counts 2 or 3 if it found appellant guilty of count 1. A person who is prosecuted
and found not guilty of one char ged crime may be guilty of a le sser crime. Minn. Stat.
§ 609.04 (2016). It is error for a district court to suggest the order in which the jury should
consider charges. State v. Prtine, 784 N.W.2d 303, 316 (Minn. 2010); see 10 Minnesota
Practice, CRIMJIG 3.20 cmt. (2015) (cautioning district courts not to i ndicate any order
in which the crimes should be considered and not to “instruct the jury to consider the lesser
crimes only if it finds the defendant not guilty of the charged offense”).
The district court instructed the jury that if it finds that each of the four elements of
count 1, possession of marijuana with intent to sell, was proved beyond a reasonable doubt,

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it must find the appellant guilty of that count. It further instructed that “[i]n that case, you
need not decide” the other counts.4
The state objected to these instructions, arguing that its “preference would have been
for each count to remain separate and the jury to consider each e l e m e n t o f e a c h c o u n t
separately and not in conjunction with the other count.” Appel lant agreed and requested
that the standard jury instructi ons be used. The district cour t nevertheless overruled the
objection.5
The district court also instructed the jury that it was to consider the instructions as a
whole, that the order in which the instructions are given is of no significance, and that the
jury was “free to consider the issues in any order you wish.” The district court explained
that the jury has two verdict forms for each of the charges aga inst appellant—guilty and
not guilty—and that the jury should draw no inference from the order in which the verdict
forms are read.
I n Prtine, the supreme court determined that it was error for the distri ct court to
instruct the jury to proceed “dow n the line” until it arrived a t a guilty verdict and after
arriving at a guilty verdict it was not required to consider th e remaining offenses. 784

4 The district court similarly instructed the jury that if it fo und the elements of count 2
proven beyond a reasonable doubt, it must find appellant guilty of count 2 but not guilty of
count 1, and in that case, need not decide count 3.

5 The district court stated that the standard jury instructions have been criticized by
appellate courts, and that its restructuring of this instructio n was to limit the amount of
repetition so as to make the instruction easier to follow, and was of the understanding that
this modified instruction has been reviewed and found acceptable on appellate review. We
are not aware of any reported cases that have found this modified instruction acceptable on
appellate review.

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N.W.2d at 317. But, by “[c]onsidering the jury instructions as whole,” the court held that
Prtine was not prejudiced by the error such that the error affected the outcome of the case.
Id.
Here, despite the district court’s instructions to the jury that it is free to consider the
issues in any order, the instruction that the jury should not return verdicts on the remaining
counts if it found appellant gu ilty of the possession-with-inte nt-to-sell count “reasonably
could be construed as suggesting an order in which the jury should consider the charges.”
State v. Davis, 864 N.W.2d 171, 179 (Minn. 2015). In Davis, the supreme court explained
that it was error to instruct the jury that it need not conside r lesser offenses, because
logically, “the jury could have concluded from that instruction that if it found the defendant
guilty of the most serious charge, it need not continue its del iberations.” Id. T h i s
instruction was in error. On remand, the instruction must not be given.
An erroneous jury instruction does not require a new trial if the error is harmless—
an error in jury instructions is harmless and a new trial shoul d not be granted if the
reviewing court determines beyond a reasonable doubt that the e rror has no significant
impact on the verdict. State v. Kuhnau, 622 N.W.2d 552, at 558-59 (Minn. 2001). Because
we conclude that the district court’s jury instruction concerni n g t h e w e i g h t e l e m e n t o f
marijuana requires reversal of appellant’s conviction, we do no t address whether this
additional error, by itself, would require a new trial. For the same reason, we do not reach
appellant’s additional arguments.
Reversed and remanded.