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This opinion will be unpublished and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
A19-0968

State of Minnesota,
Respondent,

vs.

Jeremy William Kohler,
Appellant.

Filed May 4, 2020
Affirmed
Jesson, Judge

Becker County District Court
File No. 03-CR-18-642

Keith Ellison, Attorney General, Michael Everson, Assistant Attorney General, St. Paul,
Minnesota; and

Brian McDonald, Becker County Attorney, Detroit Lakes, Minnesota (for respondent)

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

Considered and decided by Bjorkman, Presiding Judge; Jesson, Judge; and
Kirk, Judge.


 Retired judge of the Minnesota Court of A ppeals, serving by appoi ntment 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
JESSON, Judge
Appellant Jeremy William Kohler was arrested and charged with second-degree sale
of methamphetamine after facilitating a sale of the drug to a confid ential informant in a
public park. Kohler argues that the district court committed structural error during his trial
when it instructed the jury that the parties “stipulated that the substance sold was
methamphetamine,” which he asserts amounted to a directed verdict on the sale element of
the offense. We affirm.
FACTS
In October 2017, appellant Jeremy William Kohler contacted a woman to see if she
would like to purchase methamphetamine. Unbeknownst to Kohler, the woman was
cooperating with a local drug task force as a confidential informant (CI). The CI reported
Kohler’s call to a task-force agent, who authorized her to set up a buy with Kohler.
The CI picked up Kohler at his house, pr oceeded to an apartment complex, and gave
Kohler the cash provided to her by the task-force agent. Kohler left the car and met with
A.M. at a picnic table in a park near the apartment. A.M. sold Kohler a gram of
methamphetamine for $100. Kohler return ed to the CI’s car and gave her the
methamphetamine. After dropping Kohler of f, the CI turned over the methamphetamine
and extra cash to the task-force agents.
Kohler was arrested and ch arged with second-degree sale of methamphetamine in a
public park. Prior to trial, Kohler stip ulated “[t]hat the substance purchased was
methamphetamine” weighing 1.024 grams. Kohler again stipulated to this fact at trial, and

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waived his right to a jury tr ial on the element of the offense “that there was in fact
methamphetamine that changed hands in this case.”
Kohler made a strategic decision to limit the trial to the sole issue of whether he was
entrapped by the CI and task-for ce agents into participating in the sale. As Kohler’s
attorney stated—a statement with which Kohler agreed—the reason for the stipulation was
because “[w]e agree it is not the issue in this case of whether it was methamphetamine, it
was whether entrapment occurred.” Consistent with this strategy, Kohler admitted during
his testimony that he accepted cash from the CI and then gave the cash to A.M. in exchange
for the methamphetamine.
Following the close of eviden ce, the district court instructed the jury on the elements
of second-degree sale of methamphetamine in a public park. The district court
incorporated the stipulation an d waiver into its instruction on the first element of the
offense, stating:
The elements of seco nd-degree sale of
methamphetamine/amphetamine in a school park public zone
are, [f]irst, the defendant unlawfully sold one or more mixtures
containing methamphetamine or amphetamine. To sell means
to sell, give away, barter, de liver, exchange, distribute or
dispose of to another to offer or agree to do the same, to possess
with the intent to do the same or to manufacture. A mixture is
a preparation, compound, mixture, or substance containing a
controlled substance regardless of its purity. I want you to note
the parties in this case have stipulated that the substance sold
was methamphetamine, and no further proof will be required
on this element of the charge.

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(Emphasis added.) Kohler did not object to the instruction. The jury found Kohler guilty,
and the district court sentenced him to a stay of imposition, with 15 years of probation and
180 days in jail. Kohler appeals.
D E C I S I O N
Kohler asserts that the district court’s instruction to the jury on the first element of
second-degree methamphetamine sale in a public park constituted structural error because
the instruction did not accurately convey the terms of his stipulation. While the adequacy
of jury instructions is reviewed for an abuse of discretion, State v. Moore, 699 N.W.2d 733,
736 (Minn. 2005), “[w]hether a criminal defendant has been denied the right to a jury trial
is a constitutional question that we review de novo.” State v. Kuhlmann, 806 N.W.2d 844,
848-49 (Minn. 2011).
“[S]tructural errors are defects in the co nstitution of the trial mechanism, which defy
analysis by harmless-error standards.” State v. Dorsey, 701 N.W.2d 238, 252 (Minn. 2005)
(quotations omitted). Structural error occurs when a jury instruction fails to comport with
“the requirement that criminal convictions mu st rest upon a jury determination that the
defendant is guilty of every el ement of the crime with whic h he is charged, beyond a
reasonable doubt.” Moore, 699 N.W.2d at 737 (quotation omitted). In Moore, the district
court committed a structural error by instructing the jury that the loss of a tooth constitutes
the permanent loss of the function of a bodily member, when that wa s an element of the
offense for the jury to determine. Id. at 738. In the present matter, however, the instruction
comported with the terms of the stipulation a nd waiver, and thus the district court did not
err in its instruction to the jury.

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The district court instructed the jury that “I want you to note the parties in this case
have stipulated that the substance sold was methamphetamine, and no further proof will be
required on this element of the charge.” (Emphasis added.) This instruction was consistent
with the parties’ written stipulation, which recites that the parties agreed “[t]hat the
substance purchased was methamphetamine.” (Empha sis added.) By definition, a
purchase1 involves a sale, and thus the district court’s instruction to the jury that the parties
stipulated that the “substance sold” was meth amphetamine was consistent with the terms
of the executed stipulation.
The instruction was also consistent with the terms of Kohler’s on-the-record waiver
of his right to a jury determin ation. During his on-the-recor d waiver, Kohler agreed that
he was stipulating to the fact that “one of th e elements the [s]tate wo uld have to prove is
that there was in fact methamphetamine that changed hands in this case,” (emphasis added)
which again goes beyond an agreement that the substance was methamphetamine to
include an agreement th at an exchange occurred. Because Kohler stipulated and waived
his right to a jury determin ation that the substance purchased was methamphetamine, the
district court did not err by using the passive construction “the substance sold” in its
instruction to the jury.
We turn next to the district court’s instruction to the jury that “no further proof will
be required on this element of the charge.” (Emphasis added.) Within context, the district

1 The American Heritage College Dictionary defines “purchase” as “[t]o obtain in
exchange for money or its equivalent; buy” and defines “sell” as “[t]o exchange or deliver
for money or its equivalent.” The American Heritage College Dictionary 1110, 1238
(3rd ed. 1997).

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court began by defining the entire first element of the offense. It then proceeded to define
each subcomponent of the first element, defining “to sell” and “mixture” in turn. Following
the definition of “mixture,” the district court instructed the jury that the substance sold was
methamphetamine, and then, within the same sentence, states that “no further proof will be
required on this element of the charge.” The use of the conjoining “and” in the sentence at
issue—“I want you to note the parties in this case have stipulated that the substance sold
was methamphetamine, and no further proof will be required on this element of the
charge”—limits the meaning of th e word “this” to the fact that the substance sold was
methamphetamine, not the entire first element of the offense.
In sum, the instruction that Kohler asserts constituted structural error was not only
consistent with his written stipulation and on-the-record waiver, it was also consistent with
his entire trial strategy. Kohler made a strate gic decision to admit his participation in the
sale in order to assert the defense that he was entrapped by the CI and task-force agents
into participating. Therefore, the district c ourt’s instruction that “the substance sold was
methamphetamine, and no further proof will be required on this el ement of the charge”
accurately conveyed the parties’ stipulation, and no structural error occurred in the district
court’s instruction on the first element of the charged offense.
Affirmed.