State of Minnesota, Respondent, vs. Marsean Juan Crockett, Appellant.

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. l(c).
STATE OF MINNESOTA
IN COURT OF APPEALS
A20-0849
State of Minnesota,
Respondent,
vs.
Marsean Juan Crockett,
Appellant.
Filed June 14, 2021
Affirmed
Johnson, Judge
Dakota County District Court
File No. 19HA-CR-19-579
Keith Ellison, Attorney General, St. Paul, Minnesota; and
Kathryn M. Keena, Acting Dakota County Attorney, Heather Pipenhagen, Assistant
County Attorney, Hastings, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Adam Lozeau, Assistant Public
Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Slieter, Presiding Judge; Johnson, Judge; and Hooten,
Judge.
NONPRECEDENTIAL OPINION
JOHNSON, Judge
A Dakota County jury found Marsean Juan Crockett guilty of threatening to commit
a crime of violence. We conclude that the district court did not plainly err when it
instructed the jury on the elements of the offense. Therefore, we affirm.
FACTS
On March 5, 2019, Crockett entered a CVS store in Eagan with his sister. According
to the store manager, Crockett's sister carried an empty, folded bag. The manager saw
Crockett and his sister remove something from a shelf and walk toward the exit. The
manager followed Crockett's sister and saw diapers and baby food in the bag. The manager
confronted Crockett and his sister, which gave rise to a verbal altercation. The manager
said something to the effect of, "you're caught this time, just give it up." The manager
called the police, informed Crockett and his sister that he had done so, and said that he
would report their license plate number to the police. Crockett removed the items from the
bag and threw them on the floor. In response, the manager said to Crockett, "the cops
know who you are." Crockett responded by making "a gesture to his waistband" and by
saying, "I'll shoot the sh-t out of you." Crockett and his sister then left the store. The
manager testified at trial that he did not see a gun but believed that Crockett's statement
about shooting him was "credible," in part because Crockett's sister had a visible reaction
to Crockett's statement. A police officer stopped Crockett's vehicle shortly after he drove
away from the CVS store. The officer did not find a gun on Crockett's person or in the
vehicle.
The state charged Crockett with threatening to commit a crime of violence, in
violation of Minn. Stat. § 609.713, subd. 1 (2018). The case was tried to a jury over two
days in March 2020. The state called three witnesses: two police officers and the store
manager. The state introduced three exhibits, including an audio-recording and transcript
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of the manager's 911 call and a surveillance video-recording. The jury found Crockett
guilty. The district court sentenced him to 33 months of imprisonment. Crockett appeals.
DECISION
Crockett argues that the district court erred in its jury instructions on the elements
of the offense.
A district court must instruct the jury in a way that "fairly and adequately explain[ s]
the law of the case" and does not "materially misstate[] the applicable law." State v. Koppi,
798 N.W.2d 358, 362 (Minn. 2011). A district court must define the crime charged and
should explain the elements of the offense. State v. Ihle, 640 N.W.2d 910, 916 (Minn.
2002). A district court need not provide "detailed definitions of the elements to the crime
... if the instructions do not mislead the jury or allow it to speculate over the meaning of
the elements." State v. Davis, 864 N.W.2d 171, 177 (Minn. 2015) (quotation omitted). An
appellate court reviews jury instructions "as a whole to determine whether [they] accurately
state the law in a manner that can be understood by the jury." State v. Kelley, 855 N.W.2d
269, 274 (Minn. 2014). A district court has "considerable latitude" in selecting the
language of jury instructions. State v. Gatson, 801 N.W.2d 134, 147 (Minn. 2011)
( quotation omitted). Accordingly, this court applies an abuse-of-discretion standard of
review to a district court's jury instructions. Koppi, 798 N.W.2d at 361.
Crockett concedes that he did not assert objections in the district court to the
instructions that he challenges on appeal. The absence of any objection requires this court
to review only for plain error. See Minn. R. Crim. P. 31.02. Under the plain-error test, an
appellant is entitled to relief on an issue to which no objection was made at trial only if
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(1) there is an error, (2 ) the error is plain, and (3) the error affects the appellant's substantial
rights. State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998). If these three requirements
are satisfied, the appellant also must satisfy a fourth requirement: that the error "seriously
affects the fairness and integrity of the judicial proceedings." State v. Little, 851 N.W.2d
87 8, 884 (Minn. 2014). If an appellate court concludes that any requirement of the plain­
error test is not satisfied, the appellate court need not consider the other requirements. State
v. Brown, 815 N.W.2d 609, 62 0 (Minn. 201 2).
A person is guilty of threatening to commit a crime of violence if he or she
"threatens, directly or indirectly, to conimit any crime of violence with purpose to terrorize
another or to cause evacuation of a building, place of assembly, vehicle or facility of public
transportation or otherwise to cause serious public inconvenience, or in a reckless
disregard of the risk of causing such terror or inconvenience." Minn. Stat. § 609.713,
subd. 1 ( emphasis added).
A.
Crockett argues that the district court erred by not accurately instructing the jury on
the definition of the word "reckless," which appears in the statute in the clause stating, "in
a reckless disregard of the risk of causing ... terror."
The challenged instruction explains the meaning of the reckless-disregard clause as
follows:
In reckless disregard of the risk of causing such terror
means that the defendant, even though not having the specific
purpose of terrorizing another, recklessly risks the danger that
the statement would be taken as threats by another, and that
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they would cause extreme fear. It need not be proven that [the
manager] actually experienced extreme fear.
This instruction is nearly identical to the recommended pattern instruction concerning the
reckless-disregard clause in the statute. See 10 Minnesota Practice, CRIMJIG 13.107
(2020). That pattern instruction was cited with approval by this court in State v. Bjergum,
771 N.W.2d 53, 57 (Minn. App. 2009), review denied (Minn. Nov. 17, 2009).
Crockett urges this court to adopt more-expansive language concerning recklessness
from this court's opinion in State v. Coleman, 944 N.W.2d 469 (Minn. App. 2020), ajf'd,
957 N.W.2d 72 (Minn. 2021). But our Coleman opinion is not concerned with the offense
of threatening to commit a crime of violence; rather, it is concerned with the offense of
third-degree depraved-mind murder. Id. at 4 77.
Crockett also contends that a proper instruction would have established a higher or
stricter standard of recklessness by requiring the state to prove that he was "aware that his
conduct created a substantial and unjustifiable risk ... and consciously disregarded that
risk." See id. at 4 79. For this contention, he cites Bjergum, a case concerning a prosecution
of the same type as in this case, in which we stated, "Recklessness requires deliberate action
in disregard of a known, substantial risk." 771 N.W.2d at 57. That statement is not
inconsistent with the district court's instruction in this case. The statement in Bjergum may
be a more-detailed explanation of the concept of recklessness, but a district court is not
always required to instruct a jury in the most-detailed manner. For example, in Peterson
v. State, 282 N.W.2d 878 (Minn. 1979), the supreme court stated that a challenged
instruction was not erroneous because it was "sufficient to convey the essentials of the
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element to the jury" and was consistent with a statutory definition. See id. at 881-82.
Crockett cites no caselaw holding that a more-detailed instruction concerning "reckless
disregard" is required in a prosecution for threatening to commit a crime of violence. Thus,
he cannot establish that the district court's instruction is erroneous, let alone plainly
erroneous.
Even if Crockett could establish the first and second requirements of the plain-error
test, he could not establish the third requirement, that the alleged error affected his
substantial rights. See Griller, 583 N.W.2d at 741. An error affects a defendant's
substantial rights "if the error was prejudicial and affected the outcome of the case." Id.
"In the context of jury instructions, ... an error affects substantial rights when there is a
reasonable likelihood that a more accurate instruction would have changed the outcome in
this case." State v. Gutierrez, 667 N.W.2d 426, 434-35 (Minn. 2003) (quotation omitted).
An appellant bears a "heavy burden" in seeking to satisfy the third requirement of the plain­
error test. State v. Davis, 820 N.W.2d 525, 535 (Minn. 2012) (quotation omitted).
The jury could have found Crockett guilty for either of two reasons: first, because
he threatened the store manager "with purpose to terrorize" him or, second, because he
threatened the store manager "in a reckless disregard of the risk of causing such terror."
See Minn. Stat. § 609. 713, subd. 1. In closing argument, the prosecutor argued that the
state had proved both "purpose" and "reckless disregard." But the prosecutor emphasized
the evidence that tends to prove that Crockett's threat was made with the purpose of causing
terror and merely noted that "reckless disregard" could be an alternative means of finding
guilt. Indeed, the state introduced strong evidence that Crockett threatened the manager
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with the purpose of terrorizing him in order to dissuade him from taking action so that
Crockett and his sister could evade the police. In closing argument, the prosecutor
emphasized the evidence that Crockett reached for his waistband, which communicated to
the manager that he might remove a handgun. The prosecutor also emphasized the timing
of the threat, which occurred after the manager said he would call the police. The strength
of the state's evidence of a purposeful threat makes it unlikely that the jury rested its verdict
on the alternative means of committing the offense with a reckless disregard for the risk of
causing terror. Thus, Crockett has not carried his "heavy burden" of establishing that there
is a "reasonable likelihood" that a different instruction "would have changed the outcome
in this case." See Davis, 820 N.W.2d at 535; Gutierrez, 667 N.W.2d at 434-35.
B.
Crockett also argues that the district court erred by not accurately instructing the
jury on the law of assault.
The instruction that Crockett challenges states as follows:
The elements of Assault in the Second Degree are, first,
the defendant assaulted [the manager]. The term assault, as
used in this case, means an act done with intent to cause [the
manager] to fear immediate bodily harm or death. Bodily harm
means physical pain or injury, illness, or any impairment of a
person's physical condition. It is not necessary for the State to
prove that the defendant intended to inflict bodily harm or
death, but only that the defendant would so act. In order for an
assault to have been committed, it is not necessary that there
have been any physical contact with the body of the person
assaulted.
Crockett contends that the district court erred by instructing the jury on the law
concerning assault-by-causing-fear but not the law concerning assault-by-causing-harm.
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Assault-by-causing-fear is "an act done with intent to cause fear in another of immediate
bodily harm or death." Minn. Stat. § 609.02, subd. 10(1) (2020). Assault-by-causing-harm
is "the intentional infliction of ... bodily hann upon another." Minn. Stat. § 609.02,
subd. 10(2). Crockett asserts or implies that the state alleged only a threat to commit the
latter fonn of assault (assault-harm) and that the fonner form of assault (assault-fear) was
"not at issue." But there is no basis for that assertion. In fact, the record reveals that the
state sought to prove that Crockett threatened to commit the assault-fear fonn of assault.
The complaint does not refer to either form of assault but merely recites the language
of the statute by alleging that Crockett threatened to commit a "crime of violence." See
Minn. Stat. § 609.713, subd. 1. The particular crime of violence threatened-second­
degree assault by causing fear-was identified in the jury instructions. In closing
argument, the prosecutor stated that the term "assault " means "an act with the intent to
cause fear of immediate bodily harm or death." She stated further that "pointing a gun at
someone, that's an assault, if you are putting that person in fear that you're going to cause
them bodily hann." At a later point in the argument, she emphasized the evidence that
Crockett reached for his waistband, thereby indicating that he might remove a handgun.
The prosecutor's closing argument indicates that the state sought to prove that Crockett
threatened to commit assault-by-causing-fear. It is logically possible to do so, especially
if Crockett's movement toward his waistband was intended to indicate that he might
remove a handgun, which likely would have caused the manager to fear bodily harm or
death. Thus, in light of the state's theory, the district court's instruction on the law of
assault is not erroneous, let alone plainly erroneous.
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Even if Crockett could establish the first and second requirements of the plain-error
test, he could not establish the third requirement, that the alleged error affected his
substantial rights. In essence, Crockett challenges the instruction on the ground that it is
too narrow because it was limited to assault-fear and omitted assault-harm. The
consequence of a narrower instruction is that the jury had only one basis on which to find
Crockett guilty of threatening a crime (assault-fear), not two bases (assault-fear or assault­
harm). As a result, a conviction was less likely, not more likely. Thus, Crockett has not
carried his "heavy burden" of establishing that there is a "reasonable likelihood" that a
different instruction "would have changed the outcome in this case." See Davis, 820
N.W.2d at 535; Gutierrez, 667 N.W.2d at 434-35.
In sum, the district court did not cmmnit plain error in its jury instructions on the
elements of the offense.
Affirmed.
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