                          This opinion will be unpublished and
                          may not be cited except as provided by
                          Minn. Stat. § 480A.08, subd. 3 (2014).

                               STATE OF MINNESOTA
                               IN COURT OF APPEALS
                                     A15-1520

                                   State of Minnesota,
                                       Respondent,

                                           vs.

                                 Angela Tharnaa Hooks,
                                       Appellant.

                                  Filed August 22, 2016
                                        Affirmed
                                     Johnson, Judge

                              Ramsey County District Court
                                File No. 62-CR-14-4188

Lori Swanson, Attorney General, St. Paul, Minnesota; and

John J. Choi, Ramsey County Attorney, Peter R. Marker, Assistant County Attorney,
St. Paul, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Roy G. Spurbeck, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

         Considered and decided by Stauber, Presiding Judge; Ross, Judge; and Johnson,

Judge.

                         UNPUBLISHED OPINION

JOHNSON, Judge

         A Ramsey County jury found Angela Tharnaa Hooks guilty of one count of identity

theft involving eight or more victims. The state’s evidence shows that Hooks used stolen
credit cards and debit cards to purchase gift cards at Target stores. On appeal, Hooks argues

that the district court erred by instructing the jury, in response to a question, that “you must

deliberate until you can come to a unanimous verdict.” She also argues that the evidence

is insufficient to support the jury’s verdict. We conclude that the district court’s answer to

the jury’s question is erroneous but is not reversible error under the plain-error test. We

also conclude that the evidence is sufficient to support the verdict. Therefore, we affirm.

                                           FACTS

       In June 2014, the state charged Hooks with one count of identity theft involving

eight or more victims, in violation of Minn. Stat. § 609.527, subds. 2, 3(5), 7 (2012). The

case was tried to a jury in May 2015. The state called 20 witnesses: 17 women whose

purses were stolen from vehicles that were parked in public places, a Target employee with

responsibility for investigating theft and fraud, a Ramsey County deputy sheriff, and a City

of Roseville police detective. Hooks did not present any evidence.

       The case was submitted to the jury in the morning of the fourth day of trial. After

approximately two hours, the jury foreperson sent a note to the district court, asking, “What

happens if all 12 jurors cannot come to a unanimous decision?” The district court called

the jury into the courtroom and orally answered the question as follows: “All I can say to

the jury is that you must deliberate until you can come to a unanimous verdict. So you can

go back with the deputies. Thank you.” Neither party objected to the district court’s

answer to the jury’s question.




                                               2
       Approximately three hours later, the jury returned a verdict of guilty. The district

court sentenced Hooks to 117 months of imprisonment and ordered her to make restitution

to the victims in amounts of $1,000 or more per person. Hooks appeals.

                                      DECISION

                            I. Supplemental Jury Instruction

       Hooks first argues that the district court erred by instructing jurors that they “must

deliberate until [they] can come to a unanimous verdict.”

       The district court record indicates that Hooks did not object to the district court’s

answer to the jury’s question. Accordingly, this court reviews 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 (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 878, 884 (Minn. 2014).

                                             A.

       The first step in the analysis is to determine whether the district court erred. See

Griller, 583 N.W.2d at 740.

       In general, a district court must instruct a 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). With respect to a jury’s duties in

deliberations, the supreme court has summarized the applicable law as follows:


                                              3
              If a trial court believes a jury is unable to agree, it “may require
              the jury to continue their deliberations and may give or repeat
              an instruction . . . . The court shall not require or threaten to
              require the jury to deliberate for an unreasonable length of time
              or for unreasonable intervals.” State v. Kelley, 517 N.W.2d
              905, 909 (Minn. 1994) (quoting A.B.A. Standards for Criminal
              Justice § 15–4.4(b) (1986)). “[I]t is reversible error in
              Minnesota to coerce a jury towards a unanimous verdict. A
              court, therefore, can neither inform a jury that a case must be
              decided, nor allow the jury to believe that a ‘deadlock’ is not
              an available option.” State v. Jones, 556 N.W.2d 903, 912
              (Minn. 1996) (citations omitted).

State v. Buggs, 581 N.W.2d 329, 337-38 (Minn. 1998) (alterations in original).

       In this case, the district court’s statement to jurors that they “must deliberate until

[they] can come to a unanimous verdict” is a misstatement of the applicable law. The plain

language of the district court’s supplemental instruction would, if followed, coerce a

deadlocked jury to return a unanimous verdict by causing jurors “to believe that a

‘deadlock’ is not an available option.” See id. at 338 (quotation omitted). The erroneous

nature of the district court’s supplemental instruction is illustrated by two supreme court

opinions. In State v. Martin, 297 Minn. 359, 211 N.W.2d 765 (1973), the supreme court

concluded that the district court erred by suggesting to a deadlocked jury that it was

required to reach “a unanimous result” and that any juror with a minority view should

acquiesce to the majority view. Id. at 362-63, 372-73, 211 N.W.2d at 767, 772-73.

Similarly, in Kelley, the supreme court concluded that the district court erred by giving a

supplemental instruction that told deadlocked jurors to “keep deliberating” because the

supplemental instruction “may have led them to conclude that they were required to

deliberate until a unanimous verdict was reached.” 517 N.W.2d at 909. Furthermore, a



                                               4
rule of criminal procedure states, “The jury may be discharged without a verdict if the court

finds there is no reasonable probability of agreement.”         Minn. R. Crim. P. 26.03,

subd. 20(4). In light of these authorities, the district court’s supplemental instruction is

erroneous because it is an incorrect statement of law.

                                             B.

       The second step in the analysis is to determine whether the district court’s error is

plain. See Griller, 583 N.W.2d at 740. An error is plain if it is clear or obvious, and an

error is clear or obvious if it “contravenes a rule, case law, or a standard of conduct, or

when it disregards well-established and longstanding legal principles.” State v. Brown,

792 N.W.2d 815, 823 (Minn. 2011).

       The district court’s supplemental jury instruction is clearly and obviously

inconsistent with the law that applies if a jury is deadlocked. But it is neither clear nor

obvious that the same principles apply if a jury is not deadlocked. In State v. Cox, 820

N.W.2d 540 (Minn. 2012), the jury foreperson submitted a note to the district court that

stated: “We have agreed on a verdict on two charges, but have not been able to agree on a

third charge. What happens if we are unable to agree on the third charge?” Id. at 550. The

second sentence of the jury’s question in Cox is nearly identical to the jury’s question in

this case. The supreme court resolved the issue in Cox in part by stating:

              The jury’s note does not indicate that the jury was deadlocked.
              By asking, “What happens if we are unable to agree on the third
              charge” (emphasis added), the jury appears to seek guidance
              not because the jury is currently deadlocked, but in the event
              that the jury may become deadlocked in the future. Thus, we
              conclude that the court did not abuse its discretion in



                                             5
              instructing the jury to continue deliberating because the jury
              was never deadlocked.

Id. at 551. In the next paragraph, the supreme court continued by analyzing the substance

of the district court’s answer to the jury’s question, which was consistent with the

applicable caselaw. See id. at 551-52. It appears that the supreme court relied on the

absence of a deadlock as an adequate and independent basis for concluding that the district

court did not commit error and then relied on the propriety of the supplemental instruction

as an alternative basis for affirmance. See id. at 550-52. Given that understanding of Cox,

the district court’s error in this case is not plain because the jury’s note does not indicate

that it was deadlocked.

                                             C.

       The third step in the plain-error analysis is to determine whether the district court’s

error, if plain, affected the defendant’s substantial rights. See Griller, 583 N.W.2d at 740.

An error affects a defendant’s substantial rights “if the error was prejudicial and affected

the outcome of the case.” Id. at 741. “In the context of jury instructions, we have held that

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. State v. Davis, 820 N.W.2d 525, 535 (Minn. 2012)

(quotation omitted).

       In her brief, Hooks suggests that the district court’s erroneous supplemental jury

instruction affected her substantial rights because it coerced the jury’s verdict. But Hooks



                                              6
has not identified any particular features of the district court record that would tend to

indicate that coercion actually occurred. At oral argument, the state suggested that the

court should analyze the third requirement of the plain-error test by considering (1) the

district court’s earlier instruction about jury deliberations, (2) the fact that the jury was not

deadlocked, (3) the relatively short time periods in which the jury deliberated, and (4) the

state’s overwhelming evidence of guilt. In his rebuttal argument, Hooks’s appellate

counsel did not dispute the propriety of these criteria.

       The four considerations described above lead to the conclusion that the district

court’s erroneous supplemental jury instruction did not affect the outcome of the trial.

First, the district court gave the jury a proper instruction on the same subject before the

jury began its deliberations. The district court instructed jurors to “deliberate with a view

toward reaching agreement” but without “violating . . . individual judgment” or

“surrender[ing] [an] honest opinion . . . merely to reach a verdict.” See 10 Minnesota Dist.

Judges’ Ass’n, Minnesota Practice—Jury Instruction Guides, § 3.04, at 42-43 (6th ed.

2015). The jury likely was not coerced by the erroneous supplemental instruction because

it earlier received an accurate instruction. See Buggs, 581 N.W.2d at 338 (reasoning that

earlier instruction based on CRIMJIG 3.04 reduced prejudicial effect of subsequent

potentially coercive instruction); cf. Jones, 556 N.W.2d at 907-08, 911 (reasoning that

supplemental instruction based on CRIMJIG 3.04 ameliorated effect of earlier erroneous

instruction). Second, as stated above, the jury’s note does not indicate that it actually was

deadlocked. Third, the jury deliberated for only two hours before submitting its question

to the district court, and for only three additional hours after receiving the supplemental


                                               7
instruction, before returning a verdict at approximately 3:00 p.m. These considerations

lead us to believe that the district court’s erroneous instruction likely did not affect the

outcome of the case and that a more accurate instruction likely would not have changed

the outcome.

          Fourth, the state’s evidence of guilt was voluminous and detailed. The state called

20 witnesses: 3 investigators and 17 victims (even though the charge required only 8

victims). The state introduced exhibits consisting of 76 pages of documentation of the

unauthorized transactions. The state also introduced surveillance videos showing a woman

resembling Hooks inside Target stores and a vehicle resembling Hooks’s vehicle in the

parking lots outside Target stores at the dates and times of some of the unauthorized

transactions. The state also introduced evidence that police officers found clothing and

accessories in Hooks’s home and vehicle that matched the clothing and accessories worn

by the woman shown in the surveillance videos.               The state’s evidence, though

circumstantial in nature, was very strong, and Hooks did not introduce any evidence to

contradict or explain the state’s evidence. This consideration also leads us to believe that

the district court’s erroneous instruction likely did not affect the outcome of the case and

that a better instruction likely would not have changed the outcome. Thus, Hooks has not

shown that the district court’s erroneous supplemental instruction affected her substantial

rights.

          Because Hooks has not satisfied either the second requirement or the third

requirement of the plain-error test, she is not entitled to a new trial based on the district

court’s erroneous supplemental jury instruction.


                                               8
                              II. Sufficiency of the Evidence

       Hooks also argues that the evidence is insufficient to support the jury’s verdict. She

does not challenge the quantum of the state’s evidence. Rather, she contends that, even if

the state proved that she used stolen credit cards and debit cards to purchase Target gift

cards, she did not commit the charged offense of identity theft because credit cards and

debit cards do not contain or reflect an “identity.”

       Hooks’s argument raises an issue of statutory interpretation. We begin the task of

interpreting a statute by asking “whether the statute’s language, on its face, is ambiguous.”

American Tower, L.P. v. City of Grant, 636 N.W.2d 309, 312 (Minn. 2001). A statute is

ambiguous “if it is reasonably susceptible to more than one interpretation.” Lietz v.

Northern States Power Co., 718 N.W.2d 865, 870 (Minn. 2006) (quotation omitted). If a

statute is ambiguous, we apply “the canons of statutory construction to determine its

meaning.” County of Dakota v. Cameron, 839 N.W.2d 700, 705 (Minn. 2013). If a statute

is unambiguous, we “interpret the words and phrases in the statute according to their plain

and ordinary meanings.” Graves v. Wayman, 859 N.W.2d 791, 798 (Minn. 2015). We

apply a de novo standard of review when determining whether a defendant’s conduct is

within a statutory definition. State v. Hayes, 826 N.W.2d 799, 803 (Minn. 2013).

       The statute that sets forth the offense of which Hooks was convicted provides as

follows: “A person who transfers, possesses, or uses an identity that is not the person’s

own, with the intent to commit, aid, or abet any unlawful activity[,] is guilty of identity

theft . . . .” Minn. Stat. § 609.527, subd. 2. The term “identity” is defined to mean




                                              9
              any name, number, or data transmission that may be used, alone
              or in conjunction with any other information, to identify a
              specific individual or entity, including any of the following:

                      (1)    a name, Social Security number, date of birth,
              official government-issued driver’s license or identification
              number, government passport number, or employer or taxpayer
              identification number;

                    (2)   unique electronic identification number, address,
              account number, or routing code; or

                     (3)    telecommunication identification information or
              access device.

Id., subd. 1(d) (2012).

       Hooks contends that she did not transfer, possess, or use an “identity” because the

definition of that term does not encompass credit cards or debit cards. She notes that

section 609.527 defines the term “payment card” to mean “a credit card, charge card, debit

card, or any other card that . . . (1) is issued to an authorized card user; and (2) allows the

user to obtain, purchase, or receive credit, money, a good, a service, or anything of value.”

Id., subd. 1(j). She also notes that the definition of “identity” does not include any reference

to a “payment card.” In light of these definitions, Hooks asserts that “[i]f the Legislature

had wanted the information contained on a payment card . . . to meet the definition of an

identity, it simply would have referenced the words ‘payment card’ within” the definition

of “identity.” Hooks further contends that the legislature’s intent to exclude payment cards

from the definition of “identity” is indicated by the fact that using another person’s credit

card or debit card without permission already constitutes a crime, the crime of financial

transaction fraud. See Minn. Stat. § 609.821, subd. 2(1) (2012).



                                              10
       Hooks’s argument fails because credit cards and debit cards are within the definition

of “identity” even though the definition of “identity” does not include the term “payment

card.” To reiterate, the main clause of the definition of “identity” refers to “any name,

number, or data transmission that may be used . . . to identify a specific individual or

entity.” Minn. Stat. § 609.527, subd. 1(d). Credit cards and debit cards customarily bear

both a person’s name and a unique account number. Together, the name and number

identify a particular person. It is immaterial that the definition of “identity” does not

expressly refer to a “payment card” because the definition refers to other terms that describe

credit cards and debit cards. The examples of names, numbers, and data in subparagraphs

(1), (2), and (3) of the definition of “identity” are not exclusive because they are introduced

by the phrase “including any of the following.” Id. Such a phrase “should be read as

inclusive, not exclusive” because it is “a term of enlargement, not restriction.” Peterson v.

City of Minneapolis, 878 N.W.2d 521, 525 (Minn. App. 2016).

       In the circumstances of this case, the definition statute is unambiguous because it is

not “reasonably susceptible to more than one interpretation.” See Lietz, 718 N.W.2d at 870

(quotation omitted). In light of the plain language of the statute, any person who “transfers,

possesses, or uses” a credit card or debit card “that is not the person’s own, with the intent

to commit, aid, or abet any unlawful activity[,] is guilty of identity theft,” even though the

term “payment card” is not included in the definition of “identity.” See Minn. Stat.

§ 609.527, subds. 1(d), 2.

       Because the state introduced evidence capable of proving that Hooks used stolen

credit cards and debit cards to engage in unlawful activity, the state’s evidence is sufficient


                                              11
to support the jury’s verdict that Hooks is guilty of identity theft involving eight or more

victims.

       Affirmed.




                                            12
