Presumed Error In Instructions - Omitting an Element of the Offense - Is Deemed Harmless

This is the one thousandth post that I have made to this blog.  I don't believe that all of them have been substantive discourses, but most of them have been.  For the ten or so of you who apparently read this please accept my appreciation.  And now, on with the show.

State v. Schoenrock, Minn.S.Ct., 7/26/2017.  This is another opinion in a series of periodic opinions that assumes that there was an error in the trial court but ignores it.  The presumed error in this installment is an instruction error whereby the trial court omitted an element of the charged offense.  Justice Hudson says it was close enough for government work.

Ms. Schoenrock was a personal care attendant (PCA).  She billed the state for hours that she did not work.  When the state caught up with her they charged her with theft by false representation under Minn.Stat. 609.52, subd. 2(a)(3)(iiii).  This statute defines theft by false representation as a crime committed when a person:

obtains for the actor or another the possession, custody, or title to property of or performance of services by a third person by intentionally deceiving the third person with a false representation which is known to be false, made with intent to defraud, and which does defraud the person to whom it is made. 

Emphasis added.  The trial court gave the "definition" instruction for this offense, CRIMJIG 16.05, which says:

Under Minnesota law, whoever obtains for [herself] the possession, custody, or title to property of another person by intentionally deceiving the other with a false representation that is known to [her] to be false, is made with intent to defraud, and does defraud the person to whom it is made, is guilty of a crime. 

But, when the trial court got to the "elements" instruction, CRIMJIG 16.06, it did not say anything about "intent to defraud," apparently because the CRIMJIG doesn't have those words.  Ms. Schoenrock asked the trial judge to correct this oversight but the judge declined to do so.

Justice Hudson says, somewhat plaintively, that "intent to defraud" is an element of the offense, but there's no teeth in it.  Instead, there's an audible sigh and then she says, if this is an error it is a harmless one.