State v. Kelley

• Citation: 855 N.W.2d 269
• Decision Date: 22 October 2014
• Docket Number: No. A12–0993.,A12–0993.
• Parties: STATE of Minnesota, Respondent, v. Dylan Micheal KELLEY, Appellant.
• Court: Minnesota Supreme Court

855 N.W.2d 269

STATE of Minnesota, Respondent
v.
Dylan Micheal KELLEY, Appellant.

No. A12–0993.

Supreme Court of Minnesota.

Oct. 22, 2014.

Lori Swanson, Attorney General, James B. Early, Assistant Attorney General, Saint Paul, MN; and Philip K. Miller, Benton County Attorney, Foley, MN, for respondent.

Bradford Colbert, Legal Assistance to Minnesota Prisoners, Saint Paul, MN, for appellant.

OPINION

DIETZEN, Justice.

Appellant Dylan Micheal Kelley was found guilty by a Benton County jury and convicted as an accomplice to first-degree aggravated robbery and third-degree assault.¹ Kelley appealed his first-degree aggravated robbery conviction to the court of appeals, requesting a new trial based on an unobjected-to jury instruction on accomplice liability. He claimed the court of appeals could grant the requested relief under Minn. R.Crim. P. 31.02 because the jury instruction plainly violated the newly announced rule in State v. Milton, 821 N.W.2d 789 (Minn.2012).² The court of appeals affirmed Kelley's conviction, concluding the accomplice liability instruction given was error, but that he was not entitled to relief under Rule 31.02 because the law was unsettled at the time of the error and did not become settled in favor of Kelley until the time of appeal. We conclude Rule 31.02 is not limited to errors that were plain at the time of trial. Instead, it includes errors that are based on law, which although unsettled at the time of the error, was settled in favor of the defendant at the time of appellate review.³ Nevertheless, because the error alleged in this case did not affect Kelley's substantial rights, we affirm as modified.

The victim, S.A., told police at a St. Cloud hospital that he was assaulted and robbed by two men in the early morning hours of January 4, 2011. The police investigated the case, and S.A. identified Kelley as one of his attackers. Kelley was arrested and charged with first-degree aggravated robbery in violation of Minn.Stat. § 609.245, subd. 1 (2012), and third-degree assault in violation of Minn.Stat. § 609.223, subd. 1 (2012).

At trial, the State presented evidence that on January 3, 2011, S.A. went to the apartment of his friend, B.G., in St. Cloud. When S.A. arrived, B.G. was having a party and there were approximately twenty

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people at the apartment. At some point, S.A. told B.G. he was interested in getting some marijuana and was directed toward Dylan Kelley. S.A. approached Kelley, and Kelley told him he could buy some marijuana from a friend. S.A. drove Kelley to the friend's house, and Kelley purchased the marijuana and gave it to S.A. S.A. complained that it was an inadequate amount of marijuana, and Kelley responded that his friend would bring the rest to B.G.'s apartment.

Kelley's friend arrived at B.G.'s apartment later that evening, and told S.A. that Kelley wanted to see him outside. S.A. agreed and approached Kelley, who was leaning into the window of a parked car. Kelley quickly turned around and hit S.A. in the face. Kelley's friend held S.A. from behind and Kelley repeatedly hit S.A. in the face. When S.A. fell to the ground, they both kicked him. After they kicked S.A. in the face and fractured five of his teeth, S.A. lost consciousness. Kelley and his friend stole S.A.'s cigarettes, lighter, cell phone, and car keys. Subsequently, S.A. regained consciousness and returned to the apartment and told those present what happened. S.A. later discovered that his wallet, which contained about $240, was missing from his car. S.A. was taken to the hospital that morning for treatment.

At the close of the evidence the State requested that the district court instruct the jury on accomplice liability. Kelley argued that the accomplice liability instruction should not be given because he was charged as a principal and was not charged with aiding and abetting. Kelley further argued that the State had not offered any evidence regarding who committed the crime or who Kelley aided and abetted. The district court overruled Kelley's objection and the standard accomplice liability jury instruction was given to the jury.

The jury found Kelley guilty of both offenses. Subsequently, the district court entered judgment of conviction for first-degree aggravated robbery and third-degree assault and sentenced him to the presumptive sentence of 58 months.

The court of appeals affirmed, even though it concluded that the accomplice liability instruction given to the jury was legally erroneous because it failed to explain the “intentionally aiding” element of accomplice liability as required by State v. Milton, 821 N.W.2d 789, 806 (Minn.2012), which was decided after Kelley's conviction but before he filed his appellate brief. State v. Kelley, 832 N.W.2d 447, 451–52 (Minn.App.2013). But the court further concluded the error was not plain because at the time of the trial, the obligation of the district court to explain the “intentionally aiding” element of accomplice liability was unsettled and did not become settled in favor of Kelley until the time of appeal. Id. at 456–57.

I.

Kelley argues that the accomplice liability instruction given to the jury for the offense of first-degree aggravated robbery failed to accurately state the law. Kelley acknowledges that he did not object to the instruction on this specific basis, and therefore we review the instruction for plain error.

The three requirements that an appellant must satisfy under the plain-error doctrine were first articulated in United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993), and later clarified in Johnson v. United States, 520 U.S. 461, 466–67, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997). We adopted those requirements in State v. Griller, 583 N.W.2d 736, 740 (Minn.1998). Under the plain-error doctrine, the appellant must

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show that there was (1) an error; (2) that is plain; and (3) the error must affect substantial rights. Griller, 583 N.W.2d at 740 (citing Johnson, 520 U.S. at 467, 117 S.Ct. 1544 ). If the appellant satisfies the first three prongs of the plain-error doctrine, “we may correct the error only if it ‘seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.’ ” State v. Crowsbreast, 629 N.W.2d 433, 437 (Minn.2001) (quoting Johnson, 520 U.S. at 467, 117 S.Ct. 1544 ); accord Griller, 583 N.W.2d at 740. We consider each prong of the plain-error doctrine in turn.

Under the plain-error doctrine, an “error” is a “[d]eviation from a legal rule [ ] unless the rule has been waived.”⁴ Olano, 507 U.S. at 732–33, 113 S.Ct. 1770. In the context of jury instructions, a district court has broad discretion. State v. Anderson, 789 N.W.2d 227, 239 (Minn.2010). But a district court abuses that discretion if its jury instructions confuse, mislead, or materially misstate the law. State v. Vang, 774 N.W.2d 566, 581 (Minn.2009) ; State v. Moore, 699 N.W.2d 733, 736 (Minn.2005). We review the jury instructions as a whole to determine whether the instructions accurately state the law in a manner that can be understood by the jury. State v. Scruggs, 822 N.W.2d 631, 642 (Minn.2012).

Accomplice liability is defined by statute in Minn.Stat. § 609.05 (2012). The statute provides:

Subdivision 1. Aiding, abetting; liability. A person is criminally liable for a crime committed by another if the person intentionally aids, advises, hires, counsels, or conspires with or otherwise procures the other to commit the crime.

Subd. 2. Expansive liability. A person liable under subdivision 1 is also liable for any other crime committed in pursuance of the intended crime if reasonably foreseeable by the person as a probable consequence of committing or attempting to commit the crime intended.

Id. The statute does not define the phrase “intentionally aids.” The district court gave the standard accomplice liability jury instruction.⁵

In State v. Milton, the defendant argued for the first time on appeal that an instruction on accomplice liability was legally erroneous

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because the district court did not require the jury to find that he knowingly and intentionally aided another to commit the aggravated robbery. 821 N.W.2d 789, 805 (Minn.2012). We explained that the law regarding such a requirement was unsettled because our previous discussions of “intentionally aiding” had been in the context of sufficiency-of-the-evidence claims, not the adequacy of jury instructions. Id. at 807. We concluded that an accomplice liability instruction must explain that the intentionally aiding element requires that the jury find beyond a reasonable doubt that the defendant knew his alleged accomplice was going to commit a crime and the defendant intended his presence or actions to further the commission of that crime. Id. at 808. We nevertheless affirmed Milton's conviction, explaining that he failed to establish an error that was plain. Id. at 807.

The instruction on accomplice liability in this case failed to explain the intentionally aiding element as required by Milton, and therefore was error. Indeed, the State concedes that Kelley has satisfied the first prong of the plain-error doctrine.

II.

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