                         This opinion will be unpublished and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
                                    A14-2209

                                   State of Minnesota,
                                      Respondent,

                                           vs.

                                 Kevin Charles Owens,
                                      Appellant.

                                Filed January 19, 2016
                                Reversed and remanded
                                    Larkin, Judge

                             St. Louis County District Court
                              File No. 69DU-CR-10-3134


Lori Swanson, Attorney General, Karen B. Andrews, Assistant Attorney General, St. Paul,
Minnesota; and

Mark Rubin, St. Louis County Attorney, Duluth, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, St. Paul, Scott M. Flaherty,
Special Assistant Public Defender, Emily Scholtes (certified student attorney), Briggs and
Morgan, P.A., Minneapolis, Minnesota (for appellant)


      Considered and decided by Johnson, Presiding Judge; Larkin, Judge; and Harten,

Judge.





 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
                         UNPUBLISHED OPINION

LARKIN, Judge

       A jury found appellant guilty of theft of lost property. Appellant challenges his

conviction, arguing that his right to a speedy trial was violated, his trial counsel was

ineffective, and the district court’s jury instructions were erroneous.        We hold that

appellant’s constitutional right to a speedy trial was not violated. But because the district

court’s omission of an element of the offense from the jury instructions constitutes plain

error affecting appellant’s substantial rights, we reverse and remand for a new trial, without

addressing appellant’s ineffective-assistance-of-counsel claim.

                                          FACTS

       On September 21, 2010, respondent State of Minnesota charged appellant Kevin

Charles Owens with theft of lost property, failure to pay over state funds, failure to pay

income tax, and failure to file a tax return. The complaint alleged that Owens owned

Owens Yacht Sales Inc. in Duluth, and that on March 18, 2008, the Minnesota Department

of Revenue (MDOR) erroneously issued two checks made payable to Owens Yacht Sales

Inc. in the amounts of $560,980.12 and $221,982.06. The complaint alleged that MDOR

notified Owens that the payment was a mistake and that the checks were inadvertently

issued when MDOR personnel were reviewing and attempting to correct old taxpayer

account ledger systems. The complaint further alleged that MDOR repeatedly requested

that Owens return the money, Owens refused to do so, and Owens spent the entire

$782,962.18 within several months.




                                              2
       The district court mailed a summons and complaint to Owens. The summons

instructed Owens to appear on November 2, 2010, in district court to answer the complaint.

Owens failed to appear, and the district court issued a warrant for his arrest. Owens

appeared before the district court in custody on May 29, 2012. The district court set bail

in the amount of $200,000 and scheduled an omnibus hearing. At the July 6 omnibus

hearing, Owens’s attorney demanded a speedy trial on Owens’s behalf but noted that the

defense had requested more discovery and that it might not be provided in time for a trial

within 60 days.1 The district court set an August 13 pretrial date and August 28 trial date.

       On August 9, the state moved for a continuance because the prosecutor would be

“absolutely unavailable” the week of August 28. Owens agreed to withdraw his speedy-

trial demand if he could be released from custody. The district court agreed to release

Owens, authorized him to live in Hennepin County, and placed him on supervised release

subject to conditions that he report to probation weekly by phone, not use mood altering

substances without a prescription, not drive without a valid license, submit to warrantless

searches, not possess firearms, and remain out of bars and liquor stores. The district court

scheduled a pretrial conference for January 14, 2013, and a trial for January 29. On January

14, one of Owens’s attorneys informed the district court that neither she nor her co-counsel

was available on the Wednesday of the trial week. She requested that trial be held on

Tuesday, Thursday, and Friday. Because the judge was available on only Tuesday and

Wednesday of that week, the parties agreed to continue the trial to May 21.


1
 Minn. R. Crim. P. 11.09(b) provides: “On demand of any party the trial must start within
60 days of the demand unless the court finds good cause for a later trial date.”

                                             3
       On May 21, the state moved to amend the complaint to add a charge of theft with

indifference to the rights of the owner. The district court granted the state’s motion. One

of Owens’s attorneys notified the court that his co-counsel was no longer assigned to the

case and that he would be representing Owens alone. That attorney requested an omnibus

hearing to challenge probable cause. The district court set an omnibus hearing for June 7.

On June 7, Owens’s attorney requested two weeks to brief his probable-cause argument.

The district court set a June 28 deadline for Owens’s brief and a July 19 deadline for the

state’s response. In August, the district court dismissed the charge of failure to pay over

state funds and scheduled the remaining charges for a trial on December 10.

       On December 10, the district court announced that Owens’s case was scheduled for

a “backup jury trial” and that there was “a trial or two ahead of it.” Owens’s attorney stated

that Owens was not aware until that morning that he could reassert a speedy-trial demand.

Owens’s attorney asked to set the trial in April and stated that he would discuss with

Owens, in the “next day or two,” whether to reassert a speedy-trial demand and request a

different trial date. Owens’s attorney noted that Owens “has a right to have his matter

resolved in an efficient fashion, and it’s been hanging out a while,” and that Owens “would

like to get the matter over with,” but that “we know there are cases ahead of us.” The

district court stated that it would “accommodate, should a speedy trial demand be made,

such a request” and hold a trial within 60 days. The district court set a trial date of April

22, 2014. For reasons not clear from the record, Owens’s case was not tried on April 22.




                                              4
       Owens’s trial began on August 12. Only the theft-of-lost-property charge was

submitted to the jury. The other charges were dismissed. The jury found Owens guilty,

and the district court placed him on probation. This appeal follows.

                                     DECISION

                                             I.

       Owens contends that he was denied his constitutional right to a speedy trial. The

United States and Minnesota Constitutions guarantee a criminal defendant the right to a

speedy trial. U.S. Const. amend. VI; Minn. Const. art. I, § 6. “A speedy-trial challenge

presents a constitutional question subject to de novo review.” State v. Griffin, 760 N.W.2d

336, 339 (Minn. App. 2009).

       In determining whether a defendant’s right to a speedy trial has been violated,

Minnesota courts apply the four-factor balancing test set forth in Barker v. Wingo, 407 U.S.

514, 530, 92 S. Ct. 2182, 2192 (1972). State v. Widell, 258 N.W.2d 795, 796 (Minn. 1977).

The four factors are: “(1) the length of the delay; (2) the reason for the delay; (3) whether

and when the defendant asserted his right to a speedy trial; and (4) the prejudice to the

defendant caused by the delay.” State v. Cham, 680 N.W.2d 121, 124 (Minn. App. 2004),

review denied (Minn. July 20, 2004). “None of the factors is either a necessary or sufficient

condition to the finding of a deprivation of the right to a speedy trial. Rather, they are

related factors and must be considered together with such other circumstances as may be

relevant.” State v. Windish, 590 N.W.2d 311, 315 (Minn. 1999) (quotation omitted). A

speedy-trial determination involves a “difficult and sensitive balancing process.” Barker,

407 U.S. at 533, 92 S. Ct. at 2193. We consider each Barker factor in our de novo analysis.


                                             5
       Length of the Delay

       “The length of the delay is a ‘triggering mechanism’ which determines whether

further review is necessary.” Windish, 590 N.W.2d at 315 (quoting Barker, 407 U.S. at

530, 92 S. Ct. at 2182). “Where the length of the delay is ‘presumptively prejudicial’ there

is a necessity for inquiry into the remaining factors of the test.” Id. (quoting Barker, 407

U.S. at 530, 92 S. Ct. at 2182). The Minnesota Supreme Court has concluded that a six-

month delay “is sufficient to trigger further inquiry.” State v. Corarito, 268 N.W.2d 79,

80 (Minn. 1978).

       “The delay in speedy-trial cases is calculated from the point at which the sixth

amendment right attaches.” State v. Jones, 392 N.W.2d 224, 235 (Minn. 1986). “The Sixth

Amendment right to a speedy trial attaches at the time of arrest or indictment, whichever

comes first, and continues until the trial commences.” United States v. Erenas-Luna, 560

F.3d 772, 776 (8th Cir. 2009) (quotation omitted). In this case, the state charged Owens

on September 21, 2010, and trial commenced on August 12, 2014. The nearly four-year

delay in this case is sufficient to establish presumptive prejudice and trigger further inquiry.

       Reason for the Delay

       The second Barker factor is the reason for the delay, “including whether it is

attributable to [the defendant] or the state.” State v. Sistrunk, 429 N.W.2d 280, 282 (Minn.

App. 1988), review denied (Minn. Nov. 23, 1988). “A deliberate attempt to delay the trial

in order to hamper the defense should be weighted heavily against the government.”

Barker, 407 U.S. at 531, 92 S. Ct. at 2192. “A more neutral reason such as negligence or

overcrowded courts should be weighted less heavily but nevertheless should be considered


                                               6
since the ultimate responsibility for such circumstances must rest with the government

rather than with the defendant.” Id.

       Owens asserts that after his arrest, “over [20] months of [a 25-]month delay were

due to the state’s delays or an overburdened judicial system.” The record does not support

Owens’s assertion. The state moved to continue the August 28, 2012, trial date. Owens

agreed to the continuance if he could be released from custody, and he was released. Both

parties agreed to continue the January 29, 2013, trial date because Owens’s attorneys and

the district court were not available on the same days that week. The May 21 trial date was

continued because Owens requested an omnibus hearing to challenge probable cause. At

the omnibus hearing, Owens requested more time to brief his probable-cause challenge.

On December 10, Owens requested an April 2014 trial date after learning there were one

or two trials set ahead of him. The record does not explain why the April trial date was

continued. Because most of the delays are attributable to Owens, this factor weighs against

him. See State v. Johnson, 498 N.W.2d 10, 16 (Minn. 1993) (holding that “the defendant’s

claim fails under the [second] of the Barker considerations . . . principally because his own

motions were the primary reason for much of the delay”); State v. Hahn, 799 N.W.2d 25,

31-32 (Minn. App. 2011) (concluding that the second Barker factor weighed against the

defendant because of his motions and “various requests for continuances and

postponements”), review denied (Minn. Aug. 24, 2011).

       Whether and When Owens Asserted His Right to a Speedy Trial

       “The defendant’s assertion of his speedy trial right . . . is entitled to strong

evidentiary weight in determining whether the defendant is being deprived of the right.”


                                             7
Barker, 407 U.S. at 531-32, 92 S. Ct. at 2192-93. The frequency and force of the assertion

may be weighed when assessing this factor. Id. at 529, 92 S. Ct. at 2191.

       Owens demanded a speedy trial on July 6, 2012, but withdrew his demand on

August 9. He did not expressly reassert his speedy-trial demand. Owens argues that a

speedy-trial demand need not be technical or formal and that he effectively reasserted his

demand on December 10, 2013, when his attorney stated that Owens “was prepared to

proceed” and “would like to get the matter over with.” See Windish, 590 N.W.2d at 317

(stating that “[a]ssertion of the right to a speedy trial need not be formal or technical” and

instead can be “any action whatever that could be construed as the assertion of the speedy

trial right”). Although Owens’s attorney commented regarding Owens’s desire to resolve

the matter, he also told the district court that Owens had not yet decided whether to reassert

his speedy-trial demand. Counsel also informed the district court that he would discuss

reasserting the right to a speedy trial with Owens in the “next day or two.” Owens never

raised the issue again. Given the circumstances, Owens’s attorney’s statements are not

reasonably construed as an assertion of Owens’s right to a speedy trial. Thus, the third

Barker factor weighs against Owens.

       Prejudice to Owens Caused by the Delay

       “[U]nreasonable delay between formal accusation and trial threatens to produce

more than one sort of harm, including oppressive pretrial incarceration, anxiety and

concern of the accused, and the possibility that the accused’s defense will be impaired by

dimming memories and loss of exculpatory evidence.” Doggett v. United States, 505 U.S.

647, 654, 112 S. Ct. 2686, 2692 (1992) (quotations omitted). “Of these forms of prejudice,


                                              8
the most serious is the last, because the inability of a defendant adequately to prepare his

case skews the fairness of the entire system.” Id.

       Owens argues that his supervised release was tantamount to oppressive pretrial

incarceration. In Griffin, this court concluded that supervised release was prejudicial where

the defendant was not “at liberty to pursue ordinary life activities or even return to her

home in Chicago during the first six months of the delay” and “for much of that time [the

defendant’s] freedom was severely restricted by . . . standby-status requirements imposed

on her by the district court as the case was alternately placed on-call and continued some

30 times.” 760 N.W.2d at 341. Owens’s conditions of release were not nearly as restrictive

as the conditions in Griffin. Owens was allowed to return to his home in Hennepin County

and to check in with the probation department by phone. The district court also allowed

Owens to travel out of state with the permission of the probation department. Owens

asserts that the delay “caused extreme amounts of anxiety and concern [to him] and his

family and friends.” But Owens points to nothing in the record to support this assertion.

       Owens also argues that he suffered presumptive prejudice as a result of the delay.

“[A] defendant does not have to prove specific prejudice.” Id. “Where the government

has been negligent . . . prejudice can be presumed if there has been an excessive delay.”

Erenas-Luna, 560 F.3d at 779.         “[E]xcessive delay presumptively compromises the

reliability of a trial in ways that neither party can prove or . . . identify.” Doggett, 505 U.S.

at 655, 112 S. Ct. at 2693. But the presumption of prejudice may be extenuated by a

defendant’s acquiescence to the delay. See id. at 658, 112 S. Ct. at 2694 (citation omitted)

(stating that “when the presumption of prejudice, albeit unspecified, is neither extenuated,


                                               9
as by the defendant’s acquiescence, nor persuasively rebutted, the defendant is entitled to

relief” (footnotes omitted)). Owens acquiesced to the delay through his requests for

continuances and his failure to reassert his right to a speedy trial after he withdrew his

speedy-trial demand. This factor therefore weighs against Owens.

       In sum, although the nearly four-year delay in this case triggers review, the

remaining Barker factors weigh against Owens. On balance, Owens’s right to a speedy

trial was not violated.

                                               II.

       Owens also contends that the district court improperly instructed the jury regarding

the elements of theft of lost property. In discussing the jury instructions with the parties,

the district court stated that it did not “see the—this, specifically, as a lost property case in

terms of the—checks being, quote unquote, ‘lost,’” and that it “made an executive decision

to alter the caption slightly so that it fits this case.” The district court instructed the jury

using a modified version of 10 Minnesota Practice, CRIMJIG 16.11-.12 (2006), as follows:

              The statutes of Minnesota provide that whoever acquires
              another’s property and knowing, or having reasonable means
              of ascertaining the true owner, appropriates that property to his
              own use, without first having made a reasonable effort to return
              the property to the owner, is guilty of a crime.

                    . . . The elements of theft are: First, the defendant
              appropriated checks, which were the property of the Minnesota
              Department of Revenue.

                     Second, the defendant knew or believed that the checks
              were the property of the Minnesota Department of Revenue.

                      Third, the defendant knew the identity of the owner.



                                               10
                     Fourth, defendant failed to make reasonable efforts to
              return the checks to the owner.

                    Fifth, the defendant’s act took place on or about
              March 18, 2008, in St. Louis County.

(Emphasis added).

       Owens argues that the instruction omitted the “lost property” element of the charged

offense. The state contends that this issue is not preserved for appeal because Owens did

not object to the substance of the district court’s jury instructions. When the district court

stated that it had made an “executive decision to alter the caption slightly so that it fits this

case,” Owens objected, but he noted that it was “not a strong objection.” And when the

district court asked if Owens objected to the substance of the proposed instructions

regarding the definition and elements of the offense, Owens responded “No.”

       “[A] defendant who has objected to the substance of a jury instruction at trial has

preserved his right to seek a review of the instruction on appeal.” State v. Porter, 674

N.W.2d 424, 428 (Minn. App. 2004). And “[i]f a defendant’s trial objection 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.” Id. But “the failure to

object to jury instructions or to propose specific instructions constitutes a waiver of the

issue on appeal.” State v. Hollins, 765 N.W.2d 125, 128 (Minn. App. 2009). Nonetheless,

“a failure to object will not cause an appeal to fail if the instructions contain plain error

affecting substantial rights or an error of fundamental law.” State v. Cross, 577 N.W.2d

721, 726 (Minn. 1998). Given Owens’s failure to object to the specific instructions and

failure to propose an alternative instruction, we review the instruction for plain error.


                                               11
       Under the plain-error test, this court will not grant relief unless (1) there is an error,

(2) the error is plain, and (3) the error affected the defendant’s substantial rights. State v.

Griller, 583 N.W.2d 736, 740 (Minn. 1998). If the first three requirements of the plain-

error test are satisfied, appellate courts then consider whether the error “seriously affects

the fairness, integrity or public reputation of judicial proceedings.” State v. Washington,

693 N.W.2d 195, 204 (Minn. 2005) (quotation omitted).

       Appellate courts review jury instructions in their entirety to determine whether they

fairly and adequately explained the applicable law. State v. Kuhnau, 622 N.W.2d 552, 555-

56 (Minn. 2001). “An instruction is in error if it materially misstates the law. Furthermore,

it is well settled that the court’s instructions must define the crime charged.” Id. at 556

(citation omitted). In defining the crime charged, the district court should explain the

elements of the offense. Id.

       The applicable theft statute defines 17 specific acts constituting theft, many of which

are based on a precise type of property.2 Minn. Stat. § 609.52, subd. 2 (2006).              For

example, the statute separately defines theft of lost property, property or services from

vending machines, trade secrets, cable-television service, telecommunications service, and

motor vehicles. Id., subd. 2(6), (7), (8), (12), (14), (17). The state charged Owens with

theft of lost property under Minn. Stat. § 609.52, subd. 2(6), which provides that a person



2
  The legislature amended the theft statute in 2012, adding an 18th act of theft as follows:
“intentionally, and without claim of right, takes motor fuel from a retailer without the
retailer’s consent and with intent to deprive the retailer permanently of possession of the
fuel by driving a motor vehicle from the premises of the retailer without having paid for
the fuel dispensed into the vehicle.” 2012 Minn. Laws ch. 173, § 6, at 158.

                                              12
commits a theft if the person “finds lost property and, knowing or having reasonable means

of ascertaining the true owner, appropriates it to the finder’s own use or to that of another

not entitled thereto without first having made reasonable effort to find the owner and offer

and surrender the property to the owner.” (Emphasis added.)

       Section 609.52 does not define lost property. “In discerning the plain and ordinary

meaning of a word or phrase . . . [appellate courts] consider the common dictionary

definition of the word or phrase.” State v. Brown, 792 N.W.2d 815, 822 (Minn. 2011).

Black’s Law Dictionary defines lost property in two ways. It defines the term “lost” in

reference to property as “beyond the possession and custody of its owner and not locatable

by diligent search.” Black’s Law Dictionary 1031 (9th ed. 2009). It also specifically

defines “lost property” as “[p]roperty that the owner no longer possesses because of

accident, negligence, or carelessness, and that cannot be located by an ordinary, diligent

search.” Black’s Law Dictionary 1336 (9th ed. 2009).

       Given the particularity with which the legislature has defined various acts of theft

and its decision to define several acts based on specific types of property, we have no

difficulty concluding that “lost property” is an element of the charged offense. Yet, the

district court did not instruct the jury that it had to determine whether the checks in this

case were lost property. Nor did the district court define lost property. In fact, the district

court did not do so because it questioned whether the checks actually were lost property.

       The state argues that the district court’s instruction was nonetheless accurate

because




                                              13
              [a]lthough the court did not use the term “lost property,” this
              slight modification did not alter the definition of the crime.
              The only reasonable interpretation of the statute is that the
              legislature used the term “lost property” to distinguish this
              offense—which criminalizes a defendant’s conduct after
              passively acquiring another’s property—from other
              subdivisions of the statute—which criminalize the intentional
              act of seeking out property to steal. Thus, for all practical
              purposes, “find[ing] lost property” and “acquir[ing] another’s
              property” have the same meaning under this statute—what
              matters is what the defendant did with another’s property after
              he acquired it.

       We disagree with the state’s argument for several reasons. First, if legislative intent

is clear from a statute’s plain and unambiguous language, courts interpret the statute

according to its plain meaning. State v. Rick, 835 N.W.2d 478, 482 (Minn. 2013). We do

not discern, and the state does not identify, any ambiguity in section 609.52, subdivision

2(6), that justifies interpreting the statute according to anything other than its plain

meaning. And the plain language of section 609.52, subdivision 2(6), does not merely

require appropriation of “another’s property” as the district court instructed the jury, it

requires appropriation of lost property. Because the district court’s instruction did not

inform the jury of the lost-property element, it did not adequately explain the applicable

law or the elements of the charged offense.

       The state also argues that “the district court outlined the elements of the crime

exactly as proposed by CRIMJIG 16.12.” On one hand, the model instruction for theft of

lost property recognizes that the offense is based on appropriation of lost property. The

definitional instruction provides that

              whoever finds lost property, and knowing or having reasonable
              means of ascertaining the true owner, appropriates the lost


                                              14
               property to (his) (her) own use (or that of another) without first
               having made a reasonable effort to find the owner and return
               the property to the owner, is guilty of a crime.

CRIMJIG 16.11 (emphasis added). That instruction generally tracks the language of the

theft-of-lost-property statute. Compare CRIMJIG 16.11, with Minn. Stat. § 609.52, subd.

2(6).

        On the other hand, CRIMJIG 16.12, which describes the elements of theft of lost

property, does not include appropriation of lost property among the elements. CRIMJIG

16.12. Given the detailed statutory scheme that the legislature has used to define the acts

constituting theft, it is concerning that CRIMJIG 16.12 entirely ignores the requirement

under section 609.52, subdivision 2(6), that the appropriated property be lost property. We

once again remind the district court that the “CRIMJIGs are not precedential or binding”

and “[w]hen the plain language of the statute conflicts with the CRIMJIG, the district court

is expected to depart from the CRIMJIG and properly instruct the jury regarding the

elements of the crime.” State v. Gunderson, 812 N.W.2d 156, 162 (Minn. App. 2012)

(quotation omitted).     Because CRIMJIG 16.12 does not include the clear statutory

requirement that the appropriated property be lost property, it does not accurately describe

the elements of the charged offense, and the district court should not have used that

instruction.

        Lastly, the state suggests that the checks were lost property as a matter of law. The

state relies on Manos v. First Bank Minnehaha, 357 N.W.2d 372 (Minn. App. 1984). In

Manos, an employee appealed the Commissioner of Economic Security’s decision that she

was not eligible to receive unemployment-compensation benefits due to gross misconduct,


                                              15
which the commissioner found that she committed when she failed to report that her

employer overpaid her $739.57 over a two-month period. 357 N.W.2d at 373-74. On

appeal, the employee argued that “there is no evidence that she intended to commit theft

so she should not be disqualified for gross misconduct.” Id. at 375. This court concluded

that “[e]vidence in the record supports the finding that [the employee] was aware of the

overpayments,” and therefore “her failure to report them could fall within the theft statute

and thus can be considered gross misconduct.” Id. at 376.

       But this court did not conclude that the overpayment was “lost property” under the

criminal theft statute. Although we cited section 609.52, subdivision 2(6), we also cited

subdivision 2(1) and italicized the statutory language stating that theft is committed when

a person intentionally and without claim of right “‘retains possession of movable property

of another without his consent.’” Id. at 375 (quoting Minn. Stat. § 609.52, subd. 2(1)

(1982)). This court did not specify whether the employee had violated subdivision 2(6) or

2(1); it merely stated that the employee’s failure to report the overpayment “could fall

within the theft statute.” Id. at 376. We therefore do not consider Manos dispositive.

       In sum, the state’s arguments do not persuade us that the district court’s jury

instruction accurately defined the specific act of theft that was submitted to the jury. The

district court’s omission of the lost-property element of the offense from the jury

instructions was error. See State v. Carlson, 268 N.W.2d 553, 560 (Minn. 1978) (stating

that the defendant “is entitled to have all the elements of the offense with which he is

charged submitted [to the jury] even if the evidence relating to these elements is

uncontradicted”). We next consider whether the error was plain.


                                            16
       An error is “plain” if it is clear or obvious. State v. Strommen, 648 N.W.2d 681,

688 (Minn. 2002) (quotation omitted). An error is clear or obvious if it “contravenes case

law, a rule, or a standard of conduct.” State v. Ramey, 721 N.W.2d 294, 302 (Minn. 2006).

Because caselaw requires the district court to accurately define the crime charged in its jury

instructions, the error is plain. See State v. Vance, 734 N.W.2d 650, 658-59 (Minn. 2007)

(stating that “jury instructions must include all elements of the offense” and that failure to

instruct the jury on an element of an offense is error that is plain), overruled on other

grounds by State v. Fleck, 810 N.W.2d 303 (Minn. 2012). We therefore consider whether

the error affected Owens’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. An error in instructing the jury is prejudicial if there is a

reasonable likelihood that giving the instruction in question had a significant effect on the

jury’s verdict.” State v. Watkins, 840 N.W.2d 21, 28 (Minn. 2013) (citation and quotation

omitted).

                [T]he omission of an element of a crime in a jury instruction
                does not automatically require a new trial. Instead, the
                reviewing court must conduct a thorough examination of the
                record to determine whether the omission of an element of a
                charged offense from the jury instruction was sufficiently
                prejudicial in light of the standard of review. The reviewing
                court may consider, among other factors, whether: (1) the
                defendant contested the omitted element and submitted
                evidence to support a contrary finding, (2) the State submitted
                overwhelming evidence to prove that element, and (3) the
                jury’s verdict nonetheless encompassed a finding on that
                element.

Id. at 28-29.



                                              17
         Our review of the record reveals that the state did not submit overwhelming

evidence to prove that the checks were lost. In fact, one of the state’s witnesses testified

that MDOR’s computer system kept a record of the “history of refunds that were sent on

[Owens’s] account,” including the two checks that MDOR erroneously sent to Owens.

Moreover, the jury’s verdict did not encompass a finding on the lost-property element.

Given the evidence presented at trial, a properly instructed jury could have found that the

checks were not lost and that Owens therefore did not appropriate lost property as charged.

We therefore conclude that the instructional error affected Owen’s substantial rights.

         Lastly, we consider “whether a new trial is required to ensure the fairness, integrity,

and public reputation of judicial proceedings.” Id. at 31. The district court’s erroneous

instruction prevented the jury from considering a necessary element of the charged offense

when rendering its verdict. Whether Owens’s actions constitute theft of lost property must

be determined by a properly instructed jury. Based on the specific facts of this case, we

conclude that allowing the jury to consider whether Owens’s actions constitute the crime

charged—as defined by the legislature—will protect the fairness, integrity, and public

reputation of judicial proceedings. We therefore reverse and remand for a new trial

consistent with this opinion.

         Because we reverse and remand for a new trial based on the district court’s

erroneous jury instructions, we do not consider Owens’s ineffective-assistance-of-counsel

claim.

         Reversed and remanded.




                                               18
