State v. Porte

1

State of Minnesota, Respondent, v. Elvis Joko Porte, Appellant.

No. A22-1354

Court of Appeals of Minnesota

August 7, 2023

This opinion is nonprecedential except as provided by Minn. R Civ. App. P. 136.01, subd. 1(c).

Olmsted County District Court File No. 55-CR-20-4733

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

Mark A. Ostrem, Olmsted County Attorney, James E. Haase, Assistant County Attorney, Rochester, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Davi E Axelson, Assistant Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Johnson, Presiding Judge; Segal, Chief Judge; and Worke, Judge.

WORKE JUDGE

Appellant challenges his witness-tampering conviction, arguing that the district court's jury instructions violated his right to a unanimous verdict. We affirm.

FACTS

On July 29, 2020, K.B. went shopping at a mall. As he was exiting the mall, appellant Elvis Joko Porte confronted him in a truck. Porte got out of the truck, approached K.B., punched him several times, and took his backpack.

K.L. exited the mall just after and saw K.B. and Porte. K.B. asked K.L. to call the police. According to K.L.'s trial testimony, Porte was walking past her and K.L. was "a couple feet away" as K.B. asked her to call the police, at which point Porte stated, "[B]-tch, I'll f-ck you up if you call the" police. K.L. understood this as a threat directed at her. In a statement to police soon after the confrontation, K.L. similarly recounted twice that Porte said to her, "Call the cops b-tch I'll f-ck you up."

In a postarrest statement offered into evidence, Porte admitted punching K.B. and taking the backpack to collect a debt. But Porte denied threatening K.L., stating that K.L. must have been "interpreting what [Porte] said to" K.B.

The state charged Porte with offenses including first-degree witness tampering under Minn. Stat. § 609.498, subd. 1(d) (2018). In the statement of probable cause, the state alleged that Porte "yelled at [K.L.,] 'Call the cops, b-itch and I will f*** you up[.]'" The case went to trial. In its opening statement, the state identified K.L. as the alleged witness-tampering victim.

After the state rested, the district court raised the possibility of Porte arguing that he intended to tamper with a witness other than K.L. The district court wondered if it would result in "no unanimity" regarding one of the elements of the offense if Porte made this argument. But the district court opined otherwise, suggesting that the jury be instructed that witness tampering requires an attempt to "prevent or dissuade a person"-that is, not any specific individual-"from providing information to law enforcement authorities concerning a crime."

Defense counsel disagreed, arguing that the court's suggested instruction would cause "unanimity issues" regarding intent. According to defense counsel, to be guilty of witness tampering, the defendant must "direct th[eir] intent at a specific person." Defense counsel argued that the state needed to "add an additional charge with a different victim" if it wanted to prosecute Porte for tampering with a witness other than K.L. The district court disagreed and submitted its suggested instruction to the jury.

In closing argument and rebuttal, the prosecutor emphasized three times to the jury that which witness Porte intended to tamper with did "not matter as long as [Porte] was truly attempting to prevent or dissuade a person [from] providing information to law enforcement."

The jury found Porte guilty of first-degree witness tampering and fifth-degree assault but acquitted him of aggravated and simple robbery. The district court sentenced Porte to 38 months in prison for the witness-tampering conviction and 232 days in jail for the fifth-degree assault conviction. This appeal followed.

DECISION

Porte argues that the district court violated his right to a unanimous verdict by instructing the jurors such that they could find him guilty of witness tampering but not agree on who was the intended victim of the crime. As a preliminary matter, the state suggested in its brief that Porte failed to preserve his claim for appeal by failing to formally object when the district court submitted the witness-tampering instruction to the jury. See State v. Huber, 877 N.W.2d 519, 522 (Minn. 2016) (explaining that unobjected-to jury instructions may be reviewed for plain error). We also note that Porte did not specifically request an instruction requiring unanimity as to the intended victim of witness tampering.

But "[i]f a defendant's trial objection [to a jury instruction] embodies the arguments raised on appeal, the claim has been properly preserved, even if the defendant did not clearly articulate his objection to the instruction at trial." State v. Porter, 674 N.W.2d 424, 428 (Minn.App. 2004). Based on the discussion between the district court and defense counsel after the state rested, we infer that Porte's unanimity objection to the jury instruction at issue encompasses "the substance of [his] argument on appeal." See id. And during appellate oral argument, the state conceded that we may review the instruction under our typical standard for objected-to jury instructions. We accordingly review the instruction for an abuse of discretion. State v. Stempf, 627 N.W.2d 352, 354 (Minn.App. 2001) (reviewing whether jury instruction violated defendant's right to unanimous verdict).

Turning to Porte's claim, we start with the principle that "[j]ury verdicts must be unanimous in criminal cases." State v. Lagred, 923 N.W.2d 345, 348 (Minn.App. 2019) (citing Minn. R. Crim. P. 26.01, subd. 1(5)); see also Ramos v. Louisiana, 140 S.Ct. 1390 (2020) (holding that Sixth Amendment right to jury trial as incorporated against states requires jury unanimity for serious offenses). "To achieve that end, a jury must 'unanimously find [ ] that the [state] has proved each element of the offense." State v. Pendleton, 725 N.W.2d 717, 730-31 (Minn. 2007) (first alteration in original) (quoting State v. Ilhe, 640 N.W.2d 910, 918 (Minn. 2002)). We have held this to mean that "the jury must unanimously agree on which acts the defendant committed if each act itself constitutes an element of the crime." Stempf, 627 N.W.2d at 354-55 ("Whe[n] jury instructions allow for possible significant disagreement among jurors as to what acts the defendant committed, the instructions violate the defendant's right to a unanimous verdict." (emphasis added)). Applying that rule, we held unconstitutional an instruction permitting each juror to find guilt on one count of controlled-substance possession from one of two "separate and distinct culpable acts." Id. at 359. We reasoned that these acts lacked "unity of time and place" and that each act "could support a conviction" independently. Id. at 358-59.

"But the jury does not have to unanimously agree on the facts underlying an element of a crime in all cases." Pendleton, 725 N.W.2d at 731. Differing juror resolutions of "preliminary factual issues" may permissibly establish "'alternative means of committing a single offense.'" Id. (quoting Schad v. Arizona, 501 U.S. 624, 632 (1991) (plurality opinion)); see Ilhe, 640 N.W.2d at 919 (holding that finding guilt of obstructing legal process based on alternative means did not violate defendant's right to unanimous verdict in part because separate acts at issue were "part of a single behavioral incident"); State v. Epps, 949 N.W.2d 474, 481-82 (Minn.App. 2020) (explaining that the "means-versus-elements analysis" requires us to examine "the plain language" of the charging statute), aff'd, 964 N.W.2d 419 (Minn. 2021). Alternative means include "different . . . states of mind . . . offered to prove an element of a crime." State v. Dalbec, 789 N.W.2d 508, 511 (Minn.App. 2010), rev. denied (Minn. Dec. 22, 2010). To comport with due process, the alternative means must "show 'equivalent blameworthiness or culpability,'" id. at 511 (quoting Pendleton, 725 N.W.2d at 731), and must not be "distinct, dissimilar, or inherently separate." Lagred, 923 N.W.2d at 354 (explaining that ultimate due-process question is "whether the alternative means are consistent with fundamental fairness").

Here, the district court instructed the jury on witness tampering under Minn. Stat. § 609.498, subd. 1(d). Under the relevant language, whoever "intentionally . . . attempts to prevent or dissuade, by . . . threats of injury to any person . . ., a person from providing information to law enforcement authorities concerning a crime" is guilty of witness tampering. Minn. Stat. § 609.498, subd. 1(d) (emphasis added).

Porte argues that the district court violated his right to a unanimous verdict by instructing the jurors such that they could find him guilty of the sole witness-tampering charge but internally disagree about the "factual scenario[]" that the state proved-with which "person" Porte intended to tamper. Porte emphasizes that witness tampering is a crime of specific intent-"an intent to cause a particular result." State v. Fleck, 810 N.W.2d 303, 308 (Minn. 2012) (quotation omitted); see State v. Zupetz, 322 N.W.2d 730, 734 (Minn. 1982) ("[A]n attempt to commit any crime requires a specific intent to commit that particular offense." (quotation omitted)); State v. Collins, 580 N.W.2d 36, 44 (Minn.App. 1998) ("[T]he word 'intentionally' makes witness tampering a specific[-]intent offense." (quotation omitted)), rev. denied (Minn. July 16, 1998). Porte appears to suggest that finding guilt based on alternatives of which witness he specifically intended to tamper with is tantamount to proving an element of the offense based on separate and distinct culpable acts.

We...