STATE OF MINNESOTA
IN SUPREME COURT
A22-1273
Dakota County Anderson, J. Concurring, Thissen, J. Took no part, Procaccini, J. State of Minnesota,
Respondent,
vs. Filed: November 22, 2023 Office of Appellate Courts Gabriel Alfonso Sanchez Cruz,
Appellant.
_____________________
Keith Ellison, Attorney General, Saint Paul, Minnesota; and
Kathryn M. Keena, Dakota County Attorney, Heather Pipenhagen, Assistant Dakota County Attorney, Hastings, Minnesota, for respondent.
Travis Kowitz, Kowitz Law, Lindstrom, Minnesota, for appellant.
SYLLABUS
1. The district court did not abuse its discretion by precluding defendant from
asserting the affirmative defense of entrapment at trial because the written notice of the
defense was not submitted until 4 days before jury selection began and he provided only
1 minimal facts to support his defense of entrapment, in contravention of the requirements
in Minn. R. Crim. P. 9.02, subd. 1(6).
2. The jury’s verdicts finding defendant guilty of first-degree felony murder and
second-degree intentional murder are supported by sufficient evidence.
3. The district court did not abuse its discretion by denying defendant’s request
for jury instructions on the lesser-included offenses of second-degree unintentional murder,
third-degree murder, and second-degree manslaughter.
4. It was error to convict defendant of the lesser-included offense of
second-degree murder.
Affirmed in part, reversed in part, and remanded.
OPINION
ANDERSON, Justice.
Appellant Gabriel Alfonso Sanchez Cruz was indicted with first-degree felony
murder while committing an aggravated robbery and second-degree intentional murder for
the shooting death of Bryant Lutgens in January 2021. Cruz asserted the affirmative
defense of entrapment, arguing that a confidential informant who was present during the
illegal drug transaction “induced [Cruz] into committing an armed robbery,” which led to
the death of Lutgens. The district court did not allow Cruz to present his entrapment
defense during the trial. The State presented testimony from one of Cruz’s codefendants,
who testified that Cruz arranged to purchase illegal drugs from Lutgens, and when they
met on the side of the road, Cruz shot Lutgens in the head at point-blank range and
then drove away. At the close of evidence, Cruz requested jury instructions on the
2 lesser-included offenses of second-degree unintentional murder, third-degree depraved
mind murder, and second-degree manslaughter; the district court denied all of these jury
instruction requests. The jury found Cruz guilty of both first-degree felony murder and
second-degree intentional murder. The district court sentenced Cruz to life in prison with
the possibility of release after 30 years.
On direct appeal, Cruz argues that the district court abused its discretion by
prohibiting him from asserting the affirmative defense of entrapment at trial and denying
his request for jury instructions on the lesser-included offenses of second-degree
unintentional murder, third-degree murder, and second-degree manslaughter. Cruz also
argues that the evidence is not sufficient to support guilty verdicts for first-degree felony
murder and second-degree intentional murder. Because we conclude that the district court
did not abuse its discretion by prohibiting Cruz from asserting his entrapment defense at
trial and denying his request for jury instructions on the lesser-included offenses, and the
evidence is sufficient to support the jury’s guilty verdicts, we affirm Cruz’s first-degree
felony murder conviction. However, because it was error to convict Cruz of first-degree
murder as well as the lesser-included offense of second-degree murder, we reverse and
remand for the district court to vacate the second-degree murder conviction.
FACTS
Bryant Lutgens was shot in the head on the evening of January 31, 2021, and left on
the side of a road in Dakota County. On February 3, police officers stopped a vehicle that
had been rented by Lutgens because someone other than Lutgens was driving the vehicle.
Following a car and foot chase, police officers arrested the driver of the vehicle, appellant
3 Gabriel Alfonso Sanchez Cruz. The law enforcement investigation revealed that Cruz had
arranged to purchase illegal drugs from Lutgens, and when they met on the side of the road
to complete the transaction, Kyle Reagan, Jason Beck, and Ryan Whitman were also
present. The State charged all four individuals, including Cruz, with second-degree
intentional murder. On December 10, 2021, a grand jury indicted Cruz with murder in the
first degree while committing an aggravated robbery.
Cruz filed four discovery demands in November 2021, December 2021, February
2022, and May 2022. The last two discovery demands requested information related
to codefendant Reagan and his work as a confidential informant. In a memorandum
responding to Cruz’s final discovery demand, the State refused to turn over further
information about Reagan’s confidential informant work, alleging that the information
sought by the defense was unrelated to the Cruz prosecution and sensitive in nature because
it revealed the identity of a confidential informant. The State also claimed that it was not
in possession of the confidential informant information because Reagan worked as an
informant for a different law enforcement agency, the Southwest Hennepin Drug Task
Force.
Cruz initially pursued an alternative perpetrator affirmative defense related to
codefendant Reagan on May 25, but he eventually withdrew that defense and instead
discussed an entrapment affirmative defense during the pretrial conference on June 2,
2022. The State did not dispute that Reagan was a confidential informant and conceded
that Reagan was informing on Cruz. The State argued, however, that there was no Brady
4 violation 1 because the potentially exculpatory information was disclosed to Cruz when
Reagan mentioned that he was an informant during his initial statement to police and
Cruz’s grand jury proceeding.
Cruz filed a formal written notice of the entrapment defense on June 9. Later that
day, he also filed a memorandum to compel the discovery information related to Reagan’s
work as a confidential informant. In his memorandum, Cruz stated that the information
was “extremely relevant and material” because “Regan [sic] may have entrapped him in
this case,” and he “needs more information to be able to fully present this issue to the
Court.”
Jury selection for the trial began on the following Monday, June 13. That morning,
Cruz told the district court that he was entrapped by the government placing Reagan, a
confidential informant, “close to Mr. Cruz to set him up” prior to the shooting of Lutgens.
The State objected to Cruz asserting the entrapment defense, and the following exchange
occurred:
Defense counsel: Well, Your honor, I believe that this is—this is a very important issue, along with the Brady issue regarding missing discovery in this case, and I think that Rule 26 says that this is the time to do this. Mr. Cruz has the—
District court: The time to do what?
Defense counsel: To proffer information. To have a hearing and present evidence which includes testimony from Mr. Cruz for the court’s consideration. If the court would deny an entrapment defense before we start a trial, and then Mr. Cruz takes the stand in his defense and presents sufficient
1 Under Brady v. Maryland, it is a violation of the right to due process for a prosecutor to suppress material evidence favorable to the defendant. 373 U.S. 83, 87 (1963).
5 evidence to meet such a small burden of proof, at that time we’d be—our hands are tied. We don’t have an entrapment defense at that time.
We need to know in advance of trial whether or not he’s provided an entrapment defense. That can be done either by having the issue decided by the Court, and quite frankly we’re prepared to do that. We’re prepared to waive this issue which is a matter of law. Waive the jury—waive the jury deciding this issue.
If the Court decides that we’ve met this burden, and the State has not met their burden to prove beyond a reasonable doubt that he was predisposed, this matter does not go to the jury, and we’re prepared to do that now.
I think judicial efficiency and everything else that’s important here during a COVID era, it’s important. If we can decide this issue now, defense is prepared to do that. Thank you.
The State argued that there was no evidence suggesting that any agent of the
government set up a robbery that turned into a murder and that the time to deal with
entrapment was at the omnibus hearing, which had already been held. 2 The district court
took the issue under advisement and jury selection began.
On June 20, the sixth day of jury selection, the parties discussed the entrapment
issue on the record. Cruz addressed the timeliness of his written notice, which was filed
on June 9, and argued that he was not able to confirm that Reagan was informing on Cruz
until the State admitted that fact on the record on June 2 during the pretrial conference.
The State contended that the only information it had regarding Reagan and any of his
activities as an informant came from the discovery that both parties had before trial. Cruz
then addressed the procedure for asserting the affirmative defense and claimed that because
2 The omnibus hearing was originally scheduled for November 11, 2021, but took place February 25, 2022, after the first-degree murder indictment was filed.
6 he did not have an opportunity to present evidence to the district court during a hearing, he
should be allowed to present his entrapment defense to the jury. The State responded that
the court should not allow Cruz to present the defense to the jury because he had failed to
make a prima facie showing of entrapment.
The district court took a brief recess and then ruled that Cruz’s entrapment
defense would not be presented to the jury. The court noted that Minn. R. Crim. P. 9.02,
subd. 1(6)(c), requires an entrapment defense to be raised and litigated at the omnibus
hearing. The court determined that the affirmative defense of entrapment was not timely
raised. The court also held that even if Cruz had timely raised the defense, he did not meet
his burden of proving the defense by a preponderance of the evidence.
The next day, June 21, the parties continued to discuss the entrapment defense
despite the previous ruling the day before by the district court. Cruz argued that he had not
waived his right to have a jury hear and decide the validity of his entrapment defense.
According to Cruz, that jury determination was a prerequisite to any decision by the court
as to the validity of the entrapment defense. The State argued that Cruz had already asked
the court to make the decision, and thus waived his right to present the defense to the jury.
The court rejected the argument by Cruz, declaring that “the proffer and the preponderance
of the evidence lies with the Court, not with the jury.” The district court further explained
that Cruz had all the necessary information to make his argument that he was entrapped
and reiterated that Cruz failed to provide any evidence suggesting he was entrapped by
Reagan to commit a murder or an armed robbery.
7 Then, on June 22, opening statements were delivered and the State presented
testimony from the three codefendants who were present during the shooting. Each
received a plea deal in exchange for his testimony. The testimony established the following
facts, set forth below.
On January 31, 2021, Whitman, Reagan, and Beck were together when Reagan (the
confidential informant) told Whitman that he needed to leave and meet Cruz to get more
illegal drugs. All three then drove to Inver Grove Heights and met Cruz in a parking lot.
They got into the red Jeep driven by Cruz and used drugs. At some point, Cruz said that
he was going to rob Lutgens and showed his three associates his handgun.
Cruz and his passengers drove to the location where he was supposed to meet
Lutgens to buy the drugs. After parking behind Lutgens’ rental vehicle, Cruz and Beck got
into Lutgens’ vehicle while Reagan and Whitman remained in Cruz’s Jeep. Beck testified
that Cruz, after entering Lutgens’ vehicle, pointed his gun at Lutgens. Lutgens then left
his vehicle yelling with his hands in the air as he ran towards the back of the vehicle to
open the rear hatch. Cruz followed Lutgens, and they began to grab each other and wrestle.
Whitman testified that eventually Cruz, standing within 2 feet of Lutgens, “pull[ed] the
gun out and put it up to [Lutgens’] head.” Whitman testified that Lutgens had his hands
up in the air and was asking to be left alone. Cruz then pulled the trigger, and Whitman
saw Lutgens’ head move backwards after the gun was fired. Whitman said that Cruz had
the gun in his right hand and shot Lutgens in the left temple.
Reagan testified similarly to Whitman, but Reagan did not see or hear the shooting.
According to Reagan, Cruz and Lutgens were wrestling over a duffle bag and moved out
8 of his view behind a snowbank. Reagan then got out to help Cruz and pushed Lutgens, but
at that point, Lutgens’ body flipped over, and Cruz told him Lutgens was dead. During
defense counsel’s cross-examination of Reagan, Reagan testified that he told police that
Cruz said he accidentally shot Lutgens as they were wrestling. Reagan also answered,
“yes,” when defense counsel asked if he still believed that to be true.
After the shooting, Reagan, Whitman, and Beck quickly left in Cruz’s Jeep. Cruz
drove Lutgens’ rental vehicle.
Approximately 2 days after the murder, a tipster reported that Cruz shot her friend
Lutgens. The tipster was living with Cruz at the time of the murder and testified that she
saw Cruz and Reagan outside of Cruz’s apartment at night “frantically going through [a]
vehicle,” and that Cruz told her he shot Lutgens.
The State also presented testimony explaining the investigation of the crime
scene and the arrest of Cruz. The Minnesota Bureau of Criminal Apprehension (BCA)
documented the crime scene and collected evidence including a fired 9mm cartridge case
near Lutgens’ body. A medical examiner testified that the autopsy of Lutgens revealed
“stippling” present around the entrance wound and that the wound demonstrated the range
of fire was within 2 feet. The examiner also explained that soot was found around the
entrance wound, and that soot is deposited around a wound when the gun is fired
from a distance within 12 inches from the wound. The examiner testified, and autopsy
photographs revealed, that the bullet entered the upper part of [Lutgens’] right ear and
exited the left back of the head.
9 The State also presented testimony at trial detailing the police chase of Cruz and
how police found a 9mm handgun approximately 10 feet away from Lutgens’ rental
vehicle, which Cruz was driving before his arrest. The BCA determined that the spent
cartridge case found near Lutgens’ body was fired by the 9mm handgun later found near
Lutgens’ vehicle. The BCA also located two fingerprints from Cruz on the gun, one on the
magazine and one on the slide of the firearm. The BCA searched the vehicles and found
blood on the interior front driver door handle of Cruz’s Jeep and the front driver side door
frame of Lutgens’ rental vehicle. All blood samples were identified as originating from
Lutgens.
After the State rested, Cruz made a motion for a judgment of acquittal based
on insufficient evidence. The district court denied the motion. Cruz requested jury
instructions on the lesser-included offenses of second-degree (unintentional) murder,
third-degree (depraved mind) murder, and second-degree manslaughter. The district court
denied the requested instructions.
The jury returned verdicts of guilty for both first-degree felony murder and
second-degree (intentional) murder. The district court convicted Cruz of both offenses and
sentenced him to life in prison with the possibility of release after 30 years.
ANALYSIS
Cruz raises three issues on direct appeal: (1) whether it was error for the district
court to deny Cruz the opportunity to present an entrapment defense to the jury; (2) whether
the evidence is sufficient to support the guilty verdicts; and (3) whether the district court
abused its discretion by denying his request for jury instructions on lesser-included
10 offenses. We also address whether the district court erred by convicting Cruz of both
first-degree and second-degree murder. Each issue is addressed in turn.
I.
First, Cruz argues that he properly asserted the affirmative defense of entrapment,
and that even if he did not, the remedy imposed by the district court reflects an abuse of
discretion. We disagree.
“Disclosure of defenses is a discovery function under the rules.” State v. Lee,
491 N.W.2d 895, 899 (Minn. 1992). The Minnesota Rules of Criminal Procedure set forth
the procedure for asserting the affirmative defense of entrapment. Rule 9.02, subdivision 1,
provides that “[t]he defendant must, at the prosecutor’s request and before the Rule 11
Omnibus Hearing, make the following disclosures”: written notice of the affirmative
defense of entrapment, the facts supporting the defense of entrapment, and an election of
whether the entrapment defense will be submitted to the court or jury. See Minn. R. Crim.
P. 9.02, subd. 1(5)–(6).
Subdivision 1(6) of the rule details the proper procedure for raising the affirmative
defense of entrapment, specifically:
(a) If the defendant intends to offer evidence of entrapment, the defendant must inform the prosecutor of the facts supporting the defense, and elect to submit the defense to the court or jury.
(b) The entrapment defense may be submitted to the court only if the defendant waives a jury trial on that issue as provided in Rule 26.01, subd. 1(2).
(c) If the defendant submits entrapment to the court, the hearing on entrapment must be included in the Omnibus Hearing under Rule 11 or in the
11 evidentiary hearing under Rule 12. The court must make findings of fact and conclusions of law on the record supporting its decision.
Here, the State requested that Cruz disclose “the information to which the
prosecution is entitled under Rule 9.02, subd. 1 of the Minnesota Rules of Criminal
Procedure.” That rule, as noted earlier, clearly requires a defendant to provide the State
written notice of the affirmative defense of entrapment and the facts supporting the
defense of entrapment before the Rule 11 Omnibus Hearing. Minn. R. Crim. P. 9.02,
subd. 1(5)–(6).
The contested omnibus hearing occurred on February 25, 2022. Cruz did not file a
written notice of his entrapment defense until June 9, 2022 (more than 3 months after the
omnibus hearing). Moreover, he failed to inform the State of any facts that would support
a finding that he was subject to persuasion, badgering, or pressure by the State, which is
a required element of an entrapment defense. See State v. Olkon, 299 N.W.2d 89, 107
(Minn. 1980). Based on this record, we conclude that Cruz did not properly raise the
affirmative defense of entrapment because he violated two of the disclosure requirements
of Minn. R. Crim. P. 9.02, subd. 1.
Having concluded that Cruz committed two discovery violations in raising the
entrapment defense, we next consider whether the remedy imposed by the district court for
these violations reflects an abuse of discretion. If a party fails to comply with the discovery
rules, a district court may “grant a continuance, or enter any order it deems just in the
circumstances.” Minn. R. Crim. P. 9.03, subd. 8. In formulating its remedy, the district
court “should take into account: (1) the reason why disclosure was not made; (2) the extent
12 of prejudice to the opposing party; (3) the feasibility of rectifying that prejudice by a
continuance; and (4) any other relevant factors.” State v. Lindsey, 284 N.W.2d 368, 373
(Minn. 1979). But “[p]reclusion of evidence is a severe sanction which should not be
lightly invoked.” Id. at 374. “[W]e will not overturn [a district court’s] ruling absent a
clear abuse of discretion,” and the “imposition of sanctions for violations of discovery rules
and orders is a matter particularly suited to the judgment and discretion of the trial court.”
Id. at 373.
The district court did not evaluate the Lindsey factors when it precluded Cruz from
presenting the defense to the jury. Although we have not specifically applied the Lindsey
factors in circumstances in which the district court prohibited a defendant from presenting
an entrapment defense at trial, we have applied the factors when a district court has
prohibited a mental illness defense, also an affirmative defense covered under the rule,
requiring the defendant to provide notice and disclosure. Lee, 491 N.W.2d at 900
(“Analyzing the Lindsey factors together, we believe that in the unusual circumstances of
this case, the trial court did not abuse its discretion in precluding the mental illness
defense.”); see also State v. Richards, 495 N.W.2d 187, 199 (Minn. 1992) (“Defendant was
not denied his constitutional right to due process of law by sanctions precluding his
presentation of evidence on the mental illness defense where he refused to cooperate with
the psychiatrist appointed to assist him and chose not to comply with discovery rules.”).
We begin by analyzing the first consideration articulated in Lindsey, the reason why
Cruz did not disclose his entrapment defense until the week before the start of the trial.
According to Cruz, the reason he failed to disclose his entrapment defense earlier was
13 because he did not have the requisite information regarding confidential informants until
June. In its brief, the State notes that “the information that the defense was relying on to
support the affirmative defense was already known to the defense because it was contained
in Reagan’s statement to the police and the grand jury transcripts.” Cruz conceded at the
district court that Reagan admitted he was a confidential informant in his initial statements
to police and that there were disclosures of Reagan’s confidential informant status in the
grand jury transcript. Based on our review of the record, it does not appear that either the
defense or prosecution knew with certainty that Reagan was retained as a confidential
informant to inform on Cruz. But regardless of what value that fact might have added,
Cruz knew at the time of the omnibus hearing that Reagan was a confidential informant at
the time of the murder and personally knew what, if any, persuasion, badgering, or pressure
Reagan directed at him. See Olkon, 299 N.W.2d at 107 (explaining that evidence of
“something in the nature of persuasion, badgering, or pressure by the state must occur
before the inducement element is satisfied”). We therefore conclude that the reason for
nondisclosure offered by Cruz weighs against him.
For the second and third factors under Lindsey, the record does not show how the
State would have been impacted if Cruz had been allowed to present the defense during
the trial, so the prejudice to the State and the “feasibility of rectifying that prejudice by a
continuance” are unclear. Lindsey, 284 N.W.2d at 373.
The fourth Lindsey factor allows the district court to consider any other relevant
factors. One relevant consideration is the fact that Cruz did not set forth the basis of his
defense in reasonable detail. See State v. Grilli, 230 N.W.2d 445, 455 (Minn. 1975)
14 (explaining that a defendant must set forth “the basis for the claim of entrapment in
reasonable detail”). In fact, Cruz did not include any facts supporting his entrapment
defense in his written notice. Rule 9.02, subdivision 1(6), requires the defendant to
“inform the prosecutor of the facts supporting the defense, and elect to submit the defense
to the court or jury.” If the defendant submits the defense to the district court, the court
must hold an evidentiary hearing. Minn. R. Crim. P. 9.02, subd. 1(6)(c).
Another relevant consideration is how important the evidence was to the defense.
See State v. Patterson, 587 N.W.2d 45, 51 (Minn. 1998) (holding the district court did not
abuse its discretion in precluding the defendant from presenting an undisclosed witness
during trial who “was not crucial” to the defense). Although Cruz argued that the
entrapment theory was crucial to his defense, he provides no coherent argument as to how
entrapment applied in the context of an intentional murder. At the district court, Cruz
explained that he was not arguing that he was entrapped to commit murder, but rather that
he was entrapped to commit an armed robbery and a death occurred. Thus, apparently
Cruz’s argument was that he was entrapped to commit second-degree felony murder, which
does not require intent to kill. Minn. Stat. § 609.19, subd. 2(1) (2022). In other words,
Cruz failed to explain how a person could be entrapped by a government agent to commit
the offenses with which he was charged: first-degree intentional murder or second-degree
intentional murder. 3
3 Cruz cites no authority, in Minnesota or elsewhere, for the use of entrapment as a defense to first- and second-degree intentional murder, and we have found none.
15 To be sure, Cruz had a due process right to present a complete defense during the
trial. See State v. Smith, 876 N.W.2d 310, 331 (Minn. 2016) (explaining that due process
requires that every defendant be afforded a meaningful opportunity to present a complete
defense). But due process has always been subject to limitations, and both Cruz and the
State were required to comply with procedural and evidentiary rules designed to ensure
both fairness and reliability in the ascertainment of guilt and innocence. State v. Carlton,
816 N.W.2d 590, 614 (Minn. 2012).
We recognize that we have reached a different conclusion in a previous decision
related to a different Rule 9 affirmative defense, In re Welfare of M.P.Y., 630 N.W.2d 411,
418–19 (Minn. 2001). For the reasons that follow, however, we conclude the facts of
M.P.Y. are materially distinguishable from the facts here.
In M.P.Y., defense counsel asserted an alibi defense during his opening statement,
telling the jury that the defendant was at his aunt’s house when the robbery occurred. Id.
at 414. At the end of defense counsel’s opening statement, the prosecutor objected to the
alibi reference. Id. According to the prosecutor, the reference was improper because the
State had not received any witness list or “notice of a defense” as required under Minn. R.
Crim. P. 9.02, subd. 1(3). M.P.Y., 630 N.W.2d at 414. Persuaded by the prosecutor’s
argument, the district court precluded M.P.Y. from testifying about the alibi. Id. The jury
found the defendant guilty, and the court imposed a presumptive sentence. Id. at 415.
On appeal, the defendant in M.P.Y. argued the district court abused its discretion
when it precluded him from testifying about his alibi without first considering the
feasibility of a continuance. Id. at 415–16. As a threshold matter, we concluded that the
16 statements made by defense counsel during his opening argument adequately revealed the
substance of the alibi defense. Id. at 415. Those statements included the allegation that
the defendant “was at an aunt’s house between 8 and 9 o’clock, the time of the robbery”
and a description of “how [the defendant] landed at the specific spot at which he was
arrested.” Id. Next, we considered the factors articulated in Lindsey, 284 N.W.2d at 373.
We concluded that the reason for nondisclosure—defense counsel misunderstood his
disclosure obligations—weighed against the defendant. M.P.Y., 630 N.W.2d at 417–18.
As for the second factor, we concluded the unfair surprise to the State could be eliminated
through “the opportunity to investigate the alibi and cross-examine or otherwise impeach
the defendant.” Id. at 418. Finally, we observed that the district court failed to make a
finding on the third Lindsey factor—feasibility of rectifying the prejudice by ordering a
continuance. Id. In the absence of a finding on the feasibility of a continuance, we
explained that “we cannot be confident that the sanction was not disproportionate to the
purpose it was meant to serve.” Id.
Having reviewed the record here, we conclude that unlike the defendant in M.P.Y.,
Cruz failed to make an adequate offer of proof to support his affirmative defense. The
offer of proof made by the defendant in M.P.Y. is quite different than the offer of proof
made by Cruz. M.P.Y. involved an alibi defense that, if true, would have cleared the
defendant of guilt. See M.P.Y., 630 N.W.2d at 414–15 (describing the defendant’s alibi
argument made during opening statements that alleged the defendant was at his aunt’s
house when the robbery occurred). In contrast, Cruz first provided notice to the State on
May 25 that he intended to rely on “the defense that a third party, specifically Kyle Reagan,
17 perpetrated the acts charged.” Cruz then changed course; to pursue his entrapment defense,
he claimed that he was relying on the fact that Reagan was a confidential informant during
the time of the murder and that he was informing on Cruz. But when Cruz submitted his
written notice of an entrapment defense, he did not provide the factual background
supporting entrapment. On June 13, the first day of jury selection, after the district court
sought additional information about the entrapment claim, Cruz then argued that he would
have presented evidence from three sources to show entrapment: (1) testimony from a
jailhouse informant who would testify that Reagan admitted to the informant that Reagan
and others were pinning a murder on Cruz and that Reagan was working with law
enforcement to get close to Cruz; (2) testimony from Cruz’s daughter regarding text
messages sent by Reagan to her indicating that Cruz had nothing to do with the incident;
and (3) Cruz himself would have testified that Reagan gave him the firearm used in the
murder, that Reagan and the tipster were working in concert to set up the armed robbery,
that Reagan contacted him numerous times on the day of the incident about the robbery,
and that he had no relationship with the other codefendants. 4
Viewing the offered proof of entrapment in a light most favorable to Cruz, this
proffered evidence is not sufficient to meet his burden of production needed to raise the
entrapment defense for the charge of first-degree felony murder. See State v. Charlton,
4 Setting aside evidentiary issues associated with introducing any of the proffered testimony (e.g., potential hearsay objections), it is difficult to see any connection between the offer of proof and entrapment. The testimony might be relevant to an alternative perpetrator defense, a claim that Cruz did not commit the offense, or witness credibility, but Cruz does not articulate, and we fail to see, the connection to establishing a plan or scheme by the government to “entrap” Cruz.
18 338 N.W.2d 26, 29 (Minn. 1983) (referencing entrapment as a defense requiring the burden
of production, “which requires the defendant to come forward and present a sufficient
threshold of evidence to make the defense one of the issues of the case”); cf. State v.
Vaughn, 361 N.W.2d 54, 57 (Minn. 1985) (concluding that a “[d]efendant did not make a
sufficient showing of inducement” because “[t]he undercover officers merely provided
defendant with an opportunity to commit the crimes” and “did not pressure or otherwise
induce him to commit them”).
Although the inadequate offer of proof made by Cruz is sufficient by itself to
materially distinguish the facts of his case from the facts of M.P.Y., there are also material
differences in the nature of alibi and entrapment defenses that make it less likely that a
continuance will rectify the prejudice caused by the disclosure of an entrapment defense
4 days before trial. An entrapment defense is potentially more complicated and may
require more effort by the State than simply locating a witness who can undercut the
defendant’s alibi defense. An entrapment defense requires the State to prepare, for a
separate hearing or as part of the jury trial, arguments on multiple elements of entrapment.
Entrapment involves the defendant showing that the government induced the commission
of the crime. State v. Abraham, 335 N.W.2d 745, 747 (Minn. 1983). If inducement is
sufficiently raised, then the burden shifts to the State to “show beyond a reasonable doubt
that the defendant was predisposed to commit the crime.” Id. In evaluating inducement,
evidence of “something in the nature of persuasion, badgering, or pressure by the state must
occur before the inducement element is satisfied.” Olkon, 299 N.W.2d at 107. Showing
19 predisposition involves potentially introducing evidence of numerous categories of
relevant information. See id. at 107–08.
In contrast, an alibi defense requires the defendant to inform the prosecutor of the
“specific place or places where the defendant was when the alleged offense occurred” and
“names and addresses of the witnesses the defendant intends to call at the trial in support
of the alibi.” Minn. R. Crim. P. 9.02, subd. 1(7). Although this certainly places a burden
on the State to address this defense, it does not require proving or disproving multiple
elements of the defense. A successful alibi defense means the defendant was not in the
location of the crime and thus the defendant is free of guilt. See Roper v. U.S., 403 F.2d
796, 798 (5th Cir. 1968) (“[T]he essence of alibi is the impossibility of the defendant’s
guilt based on his physical absence from the locus of the crime.”).
In sum, Cruz’s reliance on M.P.Y. is misplaced for two reasons. First, unlike the
offer of proof in M.P.Y., which adequately alleged facts that if proven would have satisfied
the elements of an alibi defense, the offer of proof made by Cruz is inadequate because it
failed to allege any facts that would support a finding that he was subject to persuasion,
badgering, or pressure by the State, which is a required element of an entrapment defense.
Second, there are material differences in the nature of alibi and entrapment defenses that
make it less likely that a continuance will rectify the prejudice caused by the disclosure of
an entrapment defense 4 days before trial. Cruz put the district court and the State in the
difficult position of addressing a claim of entrapment for first-degree felony murder by
submitting his required written notice 4 days before jury selection (instead of months
earlier as required by rule) and without detailed facts about how he was entrapped. Given
20 defense counsel’s failure to follow the procedural rules for asserting an entrapment defense
and consideration of the Lindsey factors, we conclude that the district court did not abuse
its discretion in precluding Cruz from presenting his entrapment defense at trial.
II.
Next, Cruz asserts that the evidence is not sufficient to support the jury’s verdicts
finding him guilty of first-degree felony murder and second-degree intentional murder
because the State failed to prove beyond a reasonable doubt that he intended to shoot
and kill Lutgens. Cruz contends that the circumstantial evidence presented by the State
regarding his intent is consistent with the reasonable inference that the shooting was
accidental, not intentional. Thus, he argues that the district court should have granted his
motion for a judgment of acquittal.
In analyzing a sufficiency of the evidence claim, we “view the evidence in a light
most favorable to the verdict and assume the fact-finder disbelieved any testimony
conflicting with that verdict” when considering whether sufficient evidence supports the
jury’s guilty verdict. State v. Chomnarith, 654 N.W.2d 660, 664 (Minn. 2003). We will
not overturn a verdict “if, giving due regard to the presumption of innocence and to the
prosecution’s burden of proving guilt beyond a reasonable doubt, the jury could reasonably
have found the defendant guilty of the charged offense.” Id.
To evaluate the sufficiency of circumstantial evidence, we apply a two-step process.
State v. Hassan, 977 N.W.2d 633, 640 (Minn. 2022). Step one involves identifying “the
circumstances proved.” Id. “[I]n determining the circumstances proved, we consider only
those circumstances that are consistent with the verdict.” State v. Silvernail, 831 N.W.2d
21 594, 599 (Minn. 2013). To do so, we “winnow down the evidence presented at trial” to a
“subset of facts” that is consistent with the jury’s verdict and “disregard evidence that
is inconsistent with the jury’s verdict.” State v. Harris, 895 N.W.2d 592, 600–01
(Minn. 2017). The jury is “the sole judge of credibility” and “ ‘is free to accept part and
reject part’ of the testimony of a particular witness.” Hassan, 977 N.W.2d at 640 (quoting
Coker v. Jesson, 831 N.W.2d 483, 492 (Minn. 2013)). Second, we analyze “whether ‘the
circumstances proved are consistent with the hypothesis that the accused is guilty and
inconsistent with any rational hypothesis other than guilt.’ ” State v. Balandin, 944 N.W.2d
204, 213 (Minn. 2020) (quoting State v. Leake, 699 N.W.2d 312, 319 (Minn. 2005)). A
defendant may not rely on “conjecture” or “speculation” to set aside a verdict. See State v.
Al-Naseer, 788 N.W.2d 469, 480 (Minn. 2010).
The jury found Cruz guilty of first-degree murder while committing aggravated
robbery and second-degree intentional murder. To prove intent, the State was required to
prove beyond a reasonable doubt that Cruz caused the death of a human being “with the
intent to effect the death” of that person or another. Minn. Stat. §§ 609.185(a)(3) (2022),
609.19, subd. 1(1) (2022). Minnesota Statutes defines “[w]ith intent to” or “with intent
that” as meaning “that the actor either has a purpose to do the thing or cause the result
specified or believes that the act, if successful, will cause that result.” Minn. Stat. § 609.02,
subd. 9(4) (2022). Intent is a state of mind, which “generally is proved circumstantially,
by inference from words and acts of the actor both before and after the incident.” State v.
Johnson, 616 N.W.2d 720, 726 (Minn. 2000). “To prove intent, it is permissible for the
jury to ‘infer that a person intends the natural and probable consequences of his actions.’ ”
22 State v. Irby, 967 N.W.2d 389, 396 (Minn. 2021) (quoting State v. Cooper, 561 N.W.2d
175, 179 (Minn. 1997)). Intent to cause death may be inferred from the manner of shooting.
State v. Harris, 405 N.W.2d 224, 229 (Minn. 1987).
Here, the State proved the following circumstances at trial. Cruz told Whitman,
Reagan, and Beck that he planned to rob Lutgens during the illegal drug transaction and
brought a handgun with him. An altercation between Cruz and Lutgens occurred during
the drug deal, and at some point, Cruz pulled out his gun and shot Lutgens in the head at a
range of less than 2 feet. The only eyewitness to the shooting, Whitman, testified that
“Cruz pull[ed] the gun out and put it up to [Lutgen’s] head.” Whitman observed Lutgens
with his hands up in the air, pleading for Cruz to leave him alone, and “the altercation had
pretty much stopped.” Whitman further testified that “Cruz had the gun and pointed it up
to [Lutgens’] head, and then pulled the trigger.” Whitman heard the gunshot and saw
Lutgens’ head go back. Cruz then left Lutgens lying in a snowbank on the side of the road
and drove away in Lutgens’ vehicle. Cruz was then arrested driving Lutgens’ vehicle and
connected to the murder weapon by police officers finding the handgun near the vehicle
and Cruz’s fingerprints on the gun.
Next, we consider whether the circumstances proved are consistent with the
hypothesis that the accused is guilty and inconsistent with any rational hypothesis other
than guilt. Silvernail, 831 N.W.2d at 599. Cruz argues that a rational inference drawn
from the evidence is that he did not intend to cause the death of Lutgens because the gun
accidentally went off. In making his argument, Cruz attacks the credibility of Whitman’s
testimony. Cruz also claims the BCA analyst’s testimony and the autopsy results are
23 inconsistent with Whitman’s testimony that the shooting happened at a close range and that
Cruz shot Lutgens in the left temple.
Cruz fails to recognize that we must “view the evidence in a light most favorable to
the verdict and assume the fact-finder disbelieved any testimony conflicting with that
verdict,” in determining whether sufficient evidence supports the jury’s guilty verdict.
Chomnarith, 654 N.W.2d at 664. Here, Whitman testified that he saw Cruz point his gun
at Lutgens’ head and pull the trigger. Whitman also testified that Cruz was within 2 feet
of Lutgens when he shot him, and the testimony of the medical examiner about stippling
and soot confirmed Whitman’s testimony that Lutgens was shot at short range, specifically
2 feet or less. To be sure, there are some inconsistencies with the testimony of Whitman
and the examiner. Whitman testified that Cruz shot Lutgens in the left temple, whereas the
examiner testified, and the photos show, that the bullet entered through Lutgens’ right ear.
The specific location of bullet entry is not the most important part of Whitman’s testimony.
The important part of Whitman’s testimony that clearly supports a conviction of intentional
murder is the testimony stating that Cruz pointed, and shot, the gun at Lutgens’ head from
close range. It is the jury that assesses the credibility of the testimony and the jury found
Cruz guilty. See Hassan, 977 N.W.2d at 640.
In State v. Campbell, we determined that the circumstantial evidence was sufficient
to prove the defendant’s intent to kill based on testimony about the defendant’s
preparations for a robbery, including his possession of a loaded gun. 161 N.W.2d 47, 55
(Minn. 1968). In State v. Thompson, we rejected the argument that a shooting was reflexive
or unintentional when the defendant shot the victim in the head after the victim pulled a gun
24 on the defendant during an illegal drug transaction. 544 N.W.2d 8, 11–12 (Minn. 1996).
We concluded that even though the defendant fired the gun only once, that did not
contradict the reasonable inference of an intent to kill. Id. at 12. We noted that “this court
has allowed intent to kill to be shown by a single gunshot fired at close range.” Id. (citing
State v. Robinson, 536 N.W.2d 1, 2 (Minn. 1995); State v. Boitnott, 443 N.W.2d 527, 531
(Minn. 1989)).
Here, the State proved that (1) Cruz brought his gun to the illegal drug transaction
with Lutgens and expressed his intent to rob Lutgens; (2) Cruz took out his gun and pointed
it at Lutgens’ head as Lutgens begged Cruz to leave him alone; and (3) Cruz pulled the
trigger. In addition, the evidence showed that Cruz left Lutgens lying on the side of the
road in the middle of a Minnesota winter, did not report the incident to authorities, and was
eventually apprehended while driving Lutgens’ vehicle. This set of circumstances proved
by the State during the trial is consistent with the hypothesis that Cruz intentionally
murdered Lutgens and inconsistent with any other rational hypothesis other than guilt.
Thus, the evidence is sufficient to support the jury’s guilty verdicts.
III.
Finally, Cruz argues the district court abused its discretion by rejecting his request
for jury instructions on the lesser-included offenses of second-degree unintentional murder,
third-degree murder (depraved mind), and second-degree manslaughter. We review a
challenge to jury instructions for abuse of discretion and “view the evidence in the light
most favorable to the party requesting the instruction.” State v. Dahlin, 695 N.W.2d 588,
25 597 (Minn. 2005). To warrant a reversal and a new trial, an appellant must show prejudice.
Id. at 598–99.
We use a three-part test to determine whether a district court should give a
lesser-included offense instruction requested by the defendant. Id. at 598. A district court
“must give a lesser-included offense instruction when 1) the lesser offense is included in
the charged offense; 2) the evidence provides a rational basis for acquitting the
defendant of the offense charged; and 3) the evidence provides a rational basis for
convicting the defendant of the lesser-included offense.” Id. In making its determination,
the district court “may not weigh the evidence or make credibility determinations.” Id.
The lesser-included offense instruction “need not be given if no evidence is adduced to
support giving the . . . instruction.” Id. at 595.
Here, the district court only instructed the jury on first-degree murder while
committing aggravated robbery and second-degree intentional murder, both of which
include the element of intent. See Minn. Stat. §§ 609.185(a)(3), 609.19, subd. 1(1). The
district court rejected Cruz’s requests for jury instructions on three additional
lesser-included offenses: second-degree unintentional murder (Minn. Stat. § 609.19,
subd. 2(1)); third-degree murder (Minn. Stat. § 609.195(a) (2022)); and second-degree
manslaughter (Minn. Stat. § 609.205(1) (2022)). The jury returned verdicts of guilty for
both charged offenses.
The State does not challenge that the requested offenses were lesser-included
offenses, and as we have explained, “[e]very lesser degree of homicide or murder is a
lesser-included offense of first-degree murder.” State v. Chambers, 589 N.W.2d 466, 478
26 (Minn. 1999) (concluding second-degree manslaughter and criminal vehicular homicide
were lesser-included offenses of first-degree murder). Thus, we move to part two of the
analysis—whether the evidence provides a rational basis for acquitting the defendant of
the offense charged.
The district court “found that the record [was] void of any evidence to support the
inclusion of second-degree murder unintentional.” Cruz argues there was evidence before
the district court by pointing to Reagan’s testimony. Reagan had the following exchange
with defense counsel during cross-examination:
Defense Counsel: [Y]ou recall being questioned by law enforcement back in February, shortly after this incident?
Reagan: Yes.
Defense Counsel: And you were steadfast in saying that you guys did not plan for this to happen. Is that a fair assessment?
Defense Counsel: In fact, you indicated that Mr. Cruz had told you that this was an accident?
Defense Counsel: That this happened while they were wrestling?
Defense Counsel: Correct? That the gun just went off, correct?
Defense Counsel: And you told that to law enforcement consistently each time you were questioned by them; is that true?
Reagan: I believe so.
27 Defense Counsel: Okay. And you also believe that to be true; is that correct?
Defense Counsel: Okay. You never saw Mr. Cruz shoot Mr. Lutgens execution style, did you?
Reagan: No.
Defense Counsel: Because that didn’t happen, did it?
The State argues that Cruz misrepresents this portion of testimony because Reagan
only testified that “he told police that Mr. Cruz told him that the incident was an accident,”
not that Cruz actually said it was an accident. Additionally, the State insists that Reagan’s
testimony does not support giving a lesser-included offense instruction because (1) Reagan
testified he did not tell police the whole truth when he was interviewed; (2) Reagan was
Cruz’s friend and therefore biased; and (3) Reagan did not actually see or hear the shooting.
The State claims that there was insufficient evidence for a jury to rationally find that the
shooting of Lutgens was unintentional.
There is arguably some, albeit weak, evidence in the record suggesting that the
shooting may have been an accident based on Reagan’s limited testimony about his
interview with the police. Nevertheless, Reagan also testified that he did not see the
shooting. The only person who did see the shooting, Whitman, testified that Cruz pointed
the gun and shot Lutgens in the head. Additionally, the statements made by Cruz to Reagan
asserting an accidental shooting are self-serving hearsay. For these reasons, there was no
rational basis for the jury to acquit Cruz of intentional murder and find him guilty of
28 unintentional murder or manslaughter. The district court did not abuse its discretion by
rejecting Cruz’s request for jury instructions on second-degree unintentional murder and
second-degree manslaughter.
In addition, the State correctly points out that third-degree murder is wholly
inapplicable to the facts here because it requires the defendant to exhibit a generalized
indifference to human life and that cannot exist when the defendant’s conduct is directed
with particularity at the person who was killed. See State v. Noor, 964 N.W.2d 424, 438
(Minn. 2021) (holding that the mental state required for depraved-mind murder “cannot
exist when the defendant’s conduct is directed with particularity at the person who is
killed”). In this case, there is no evidence that Cruz’s actions related to the armed robbery
and shooting were directed towards anyone other than Lutgens. All evidence suggests that
Cruz brought the gun to rob Lutgens during the illegal drug transaction and multiple
witnesses observed Cruz physically struggle with Lutgens. For these reasons, there was
no rational basis for the jury to acquit Cruz of intentional murder and find him guilty of
depraved-mind murder. Therefore, the district court did not abuse its discretion by
rejecting Cruz’s request that the jury be instructed on third-degree murder.
Even if the district court had abused its discretion by failing to instruct the jury on
one or more of the lesser-included offenses, there was no prejudice here. In assessing
prejudice, “[we] consider the instructions actually given and the verdict rendered by the
jury.” Dahlin, 695 N.W.2d at 599. We have recognized that “ ‘[w]here one of the elements
of the offense charged remains in doubt, but the defendant is plainly guilty of some offense,
the jury is likely to resolve its doubts in favor of conviction,’ rather than let the defendant
29 go free entirely.” State v. Harris, 713 N.W.2d 844, 850 (Minn. 2006) (quoting Keeble v.
United States, 412 U.S. 205, 208 (1973)). Thus, “a defendant may have suffered prejudice
when a lesser-included-offense instruction was merited, but the jury was instead given what
amounts to ‘a Hobson’s choice between the higher offense or nothing.’ ” Id. (quoting Stiles
v. State, 664 N.W.2d 315, 319 (Minn. 2003)).
In State v. Harris, we determined that the district court abused its discretion by not
giving the lesser-included instruction on second-degree felony murder. 713 N.W.2d 844,
850 (Minn. 2006). But we held that the error did not prejudice the defendant because the
jury chose to convict the defendant of the greater of the two offenses for which the jury
was instructed (first-degree intentional felony murder). We reasoned that “[i]f the jury had
entertained a reasonable doubt about Harris’s guilt of the first-degree murder, the jury
could have convicted him of second-degree murder and acquitted him of the first-degree
offense.” Id. at 851.
Here, the jury was presented with two instructions: (1) first-degree murder while
committing aggravated robbery and (2) second-degree intentional murder. The jury found
Cruz guilty of both offenses. Therefore, given the analysis in Harris, Cruz suffered no
prejudice. Id. (“That the jury convicted [the defendant] of the greater offense, despite the
availability of the lesser offense or ‘third option,’ indicates that [the defendant] suffered no
prejudice from the denial of the second-degree felony murder instruction.”).
IV.
In addition to the claims asserted by Cruz, we consider an issue not raised on
appeal. The district court entered convictions for both first-degree felony murder and
30 second-degree intentional murder after the jury returned the guilty verdicts. The district
court erred in doing so. Under Minn. Stat. § 609.04, subd. 1 (2022), a defendant “may be
convicted of either the crime charged or an included offense, but not both.” We have
recognized that “every lesser degree of murder is an included offense.” State v. Zumberge,
888 N.W.2d 688, 697 (Minn. 2017); see also State v. Leinweber, 228 N.W.2d 120, 125
(Minn. 1975). Accordingly, we remand to the district court to vacate the second-degree
intentional murder conviction but otherwise leave the guilty verdicts in place.
CONCLUSION
For the foregoing reasons, we affirm Cruz’s conviction for first-degree felony
murder but reverse and remand for the district court to vacate the second-degree murder
conviction.
PROCACCINI, J., not having been a member of this court at the time of submission,
took no part in the consideration or decision of this case.
31 CONCURRENCE
THISSEN, Justice (concurring).
I concur in the decision in this case. I write separately to express my disagreement
with the court’s reasons for rejecting appellant Gabriel Alfonso Sanchez Cruz’s contentions
that the district court abused its discretion in refusing to allow the jury to consider an
entrapment defense. In addition, I would resolve the question of whether the district court
abused its discretion in failing to instruct the jury on second-degree unintentional murder,
third-degree depraved mind murder, and second-degree manslaughter solely on the ground
that any error that may have occurred did not prejudice Cruz.
Turning first to the entrapment issue: Cruz does not argue that confidential
informant Kyle Reagan entrapped him into intentionally killing Bryant Lutgens. He only
argues that he was entrapped into joining an armed robbery. Cruz’s decision to take the
further step of intentionally killing Lutgens is an independent act distinct from the armed
robbery. On those facts, entrapment is not a defense available to Cruz.
I acknowledge that Cruz’s apparent theory at trial was that the shooting of Lutgens
was an unintentional outgrowth of the armed robbery. But the jury plainly disagreed. It
determined that Cruz intentionally shot Lutgens and, as the court correctly holds, the
evidence at trial supports that determination. Thus, even if there is a theory under which
entrapment into an armed robbery may have been a defense to unintentional felony murder
with a predicate offense of armed robbery, the failure to instruct the jury on entrapment
was harmless error beyond a reasonable doubt. See State v. Lindsey, 284 N.W.2d 368, 374
(Minn. 1979) (applying harmless error review to a district court decision to exclude
C-1 evidence as a discovery violation sanction); see also In re Welfare of M.P.Y., 630 N.W.2d
411, 418–19 (Minn. 2001) (same).
I do not agree that the record in this case fairly supports the court’s conclusions
(1) that Cruz’s assertion of the entrapment defense was untimely or (2) that, if Cruz was
untimely in asserting his entrapment defense, complete exclusion of the entrapment
defense was an appropriate sanction. I also conclude that Cruz identified for the district
court sufficient evidence to show (if the jury believed the evidence) that Reagan persuaded
him to participate in an armed robbery that Reagan engineered. That is enough to get the
issue of entrapment on armed robbery to the jury. State v. Olkon, 299 N.W.2d 89, 107
(Minn. 1980) (stating that inducement by a government agent is shown by “something in
the nature of persuasion . . . by the state”). Based on my resolution of the case—a
resolution with which the court agrees—the court need not have reached those issues.
Carlton v. State, 816 N.W.2d 590, 614 (Minn. 2012) (stating that resolution of questions
“not necessary to our ultimate holding” are dicta).
Finally, our precedent makes clear that Cruz was not prejudiced by the failure of the
district court to instruct on the lesser-included offenses. State v. Harris, 713 N.W.2d 844,
851 (Minn. 2006). I would not reach, and express no opinion on, the question of whether
the district court should have given instructions on at least some of the lesser-included
offenses.
C-2