2010-M-158             State of Minnesota, Respondent, vs. Edgar Rene Barrientos-Quintana, Appellant.

MAJORITY:  A jury found Edgar Rene Barrientos-Quintana guilty of four counts of first-degree murder and four counts of attempted first-degree murder for an October 11, 2008, drive-by shooting in which one young man died and another was injured.  The district court records reflect that on each of the first-degree-murder counts, the court sentenced Barrientos-Quintana to life in prison without the possibility of parole.  The district court records also reflect that on each of the attempted first-degree murder counts, the court imposed 192-month sentences. 

Barrientos-Quintana now appeals his convictions, arguing that the district court plainly erred by failing to give a jury instruction regarding accomplice testimony.  Barrientos-Quintana also argues that the district court erred by entering convictions and imposing sentences on all eight counts. 

Because the record reflects that Barrientos-Quintana was formally adjudicated and sentenced on all eight counts, we vacate his convictions and sentences on counts 2-4 and 6-8, leaving the jury verdicts on those counts in force.  See Earl, 702 N.W.2d at 723-24.  We remand the case to the district court to correct the official judgment of conviction to reflect the formal adjudication and sentence on counts 1 and 5 only.

We affirm in part, vacate in part, and remand.

First, the district court erred when it failed to instruct the jury that it could not convict the defendant based on the uncorroborated testimony of an accomplice, but that error did not affect the defendant‘s substantial rights.

Second, the district court erred by entering conviction and sentence on alternative counts for the same criminal act involving the same victim.

DISSENT:  Justice Paul Anderson opined:  “I respectfully dissent.  The majority, despite its holding that the district court committed plain error in this case, affirms Edgar Rene Barrientos-Quintana‘s convictions on the ground that the court‘s error was harmless.  In my view, the court‘s failure to instruct the jury that it could not find Barrientos-Quintana guilty based upon the uncorroborated testimony of Marcelo Hernandez affected Barrientos-Quintana‘s substantial rights.  Accordingly, I would hold that the court‘s plain error was not harmless, reverse Barrientos-Quintana‘s convictions for first-degree murder and attempted first-degree murder, and remand the case for a new trial.

               Barry Anderson  (Gildea, Page, Paul Anderson, Meyer, Dietzen and Stras)

               Dissent:  Paul Anderson

               Took no part:  Stras

               [MURDER]