Under Plain Error Review, Instruction Error on Intent to Commit Burglary Do Not Require New Trial

State v. Davis, Minn.S.Ct., 6/3/2015.  A jury convicted Mr. Davis of first degree felony murder.  Here's part of the instructions that the trial court gave to the jury:

First, the defendant or an accomplice was committing the crime of burglary. This element is satisfied if there is proof beyond a reasonable doubt that the defendant or an accomplice entered a building without the consent of the person in lawful possession and intended to commit or committed a theft while in the building.

So, what's wrong with this instruction?   First, Mr. Davis said that it does not include the definition of theft, which is the predicate offense for the burglary.  Justice Wright, for the entire court, rejects this assertion.  So long as the court's instructions do not mislead the jury or allow it to speculate over the meaning of the elements of the offense, then it's okay.  

Next, Mr. Davis said that the instructions misstated the law on the intent required to commit the burglary.  Third degree burglary, the predicate felony to the murder, requires proof that a person either "enters a building without consent and with intent to steal," or "enters a building without consent and steals ... while in the building.  See the problem with the court's instruction?  The instruction says that the intent to commit a theft need not have been formed at the time of entry. That's not what the statute requires.

Unfortunately for Mr. Davis, there was no objection to this erroneous instruction.  Under plain error - and the court only assumes that the error was plain - he has to establish that the error affected his substantial rights.  Mr. Davis can't satisfy that requirement for two reasons:  first, one of is defenses was that he wasn't there so if the jury accepted that claim that it doesn't matter what the instructions are.  His second defense was that he had permission to take the items that were removed but only temporarily.  (He claimed that all this was some sort of furniture rental scam.)  Justice Wright said something about this defense not implicating the intent element of burglary "because there is no evidence that Davis entered the apartment without an intent to steal, subsequently formed an intent to steal while in the apartment, but ultimately chose not to steal anything while in the apartment."  

The trial court told the jury that it "need consider ... the lesser offenses that are now being submitted." This is an error; juries can't be told in what order to consider charges.  See State v. Prtine, 784 N.W.2d 303, 316 (Minn. 2010).  Again, however, Mr. Davis didn't object to this instruction and, again, under plain error he can't establish that the error here was plain.

The court also excluded some alternative-perpetrator evidence that the defense wanted to jury to know about, which mostly involved persons other than the deceased.  The court found no abuse of discretion in excluding this evidence.

Finally, the court rejects complaints that the trial court improperly carried on with parts of the trial in Mr. Davis's absence, even though he'd asked not be be present.