State v. Kelley

• Decision Date: 01 July 2013
• Docket Number: No. A12–0993.,A12–0993.
• Citation: 832 N.W.2d 447
• Parties: STATE of Minnesota, Respondent, v. Dylan Micheal KELLEY, Appellant.
• Court: Minnesota Court of Appeals

832 N.W.2d 447

STATE of Minnesota, Respondent,

v.Dylan Micheal KELLEY, Appellant.

No. A12–0993.

Court of Appeals of Minnesota.

July 1, 2013.

Syllabus by the Court

When an unobjected-to error of the district court is reviewed on appeal under Minn. R.Crim. P. 31.02, the error is not plain when the law governing the district court's erroneous ruling was unsettled at the time of trial, but became settled in favor of the defendant during the pendency of the appeal.

Lori Swanson, Attorney General, James B. Early, Assistant Attorney General, St. Paul, MN; and Karl L. Schmidt, Acting Benton County Attorney, Foley, MN, for respondent.

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

Considered and decided by ROSS, Presiding Judge; CHUTICH, Judge; and KIRK, Judge.

OPINION

KIRK, Judge.

We are asked to decide whether the district court committed plain error in its instructions on accomplice liability during the criminal trial of appellant Dylan Micheal Kelley.¹ Appellant has not shown that he objected to the error, that the error was plain, that it affected his substantial rights, and that it affected the fairness and integrity of his trial. Therefore, we affirm.

FACTS

Early on the morning of January 4, 2011, a 17–year–old male victim was beaten and robbed in St. Cloud. On the evening before the attack, the victim drove his friend, S.S., to St. Cloud to go shopping. The shopping mall was closed because it was late, and a restaurant refused to serve the victim because he appeared to be violating curfew laws. They then drove to the apartment of the victim's friend, B.G., where a number of people—including appellant—had gathered for a party. The victim had not met appellant before that night.

The victim asked B.G. for marijuana, and B.G. told the victim to speak to appellant. When the victim approached appellant asking for marijuana, appellant agreed to ride with the victim to the home of an unidentified person, where the victim could buy marijuana. When they arrived at the home of the marijuana dealer, the victim took out his wallet in full view of appellant, removed $60 of the approximately $300 in the wallet, and gave the money to appellant to pay for the marijuana. The victim waited in the car while appellant went in the house and bought marijuana.

When appellant returned, the victim complained that appellant had only returned with a small amount of marijuana for the money he had paid. Appellant told the victim that the marijuana dealer would come to the party with the remaining marijuana the victim was owed. They returned to the party, where the victim smoked some of the marijuana and waited until about 2 a.m., when an unidentified friend of appellant (partner) showed up. About a half hour after the partner arrived at the party, appellant and the partner went outside. A short time later, someone told the victim that appellant wanted to see him outside. When the victim went outside, he found appellant leaning into a vehicle in the parking lot. As the victim approached the car, appellant stood up, turned, and hit the victim in the face.

Appellant's partner then stood behind the victim and held him while appellant repeatedly hit the victim in the face. Eventually, the victim fell to the ground and both appellant and his partner continued to hit the victim in the face and kick him in the sides, face, and head with their work boots, and to step on his hands. They also searched his pockets and repeatedly demanded his wallet. Although the victim's wallet was in his car's center console, he told appellant and his partner that the wallet was inside the apartment where the party was occurring.

Eventually, the victim lost consciousness. Appellant and his partner took the victim's cigarettes, lighter, cell phone, and car keys. When the victim regained consciousness, he re-entered the apartment, went to the bathroom, tried washing the blood off his hands and face, and spit broken teeth from his mouth. The victim asked people at the party to call the police and to take him to the hospital, but they refused because they wanted to avoid police involvement.

The victim passed out on the couch and awoke in the morning. Meanwhile, S.S. inspected the victim's car and discovered that the victim's wallet and money were missing from the center console. When the victim awoke, he found that his car keys and cell phone had been returned. The victim drove with S.S. to the hospital, where he was treated and where he asked the hospital staff to contact the police.

As a result of the attack, three of the victim's lower teeth and two of his upper teeth were fractured, and the inside of his mouth was lacerated. For about a month after the attack, he could only consume warm liquids through a straw. He also experienced symptoms of anxiety, took prescribed anxiety medication, and refused to leave the house after dark.

At the close of the jury trial, the state, over the objections of appellant, prevailed upon the district court to instruct the jury on accomplice liability. The jury convicted appellant of one count of first-degree aggravated robbery and one count of third-degree assault. This appeal follows.

ISSUE

Did the district court commit plain error in its jury instructions on accomplice liability?

ANALYSIS

Appellant argues that the district court's jury instructions on accomplice liability relieved the state of its burden of proving beyond a reasonable doubt that appellant knew that his partner planned to commit a robbery, and that appellant intended his presence at the crime scene to further the commission of the crime. Appellant is not contesting his assault conviction.

A party objecting to jury instructions must do so on the record and must state specific grounds for the objection. Minn. R.Crim. P. 26.03, subd. 19(4)(b), (d). Appellant's objection to the jury instruction at the district court was premised on the state's failure to advance an accomplice-liability theory of guilt until late in the trial. He argued to the district court that the instruction should not be given at all. But he has abandoned that theory on appeal. Now he argues that the instruction was erroneous because it failed to properly instruct the jury that it must find beyond a reasonable doubt that appellant knowingly and intentionally assisted in the commission of a crime.

Appellant initially argued here that the district court's jury instruction should be reviewed for abuse of discretion. See State v. Koppi, 798 N.W.2d 358, 361 (Minn.2011) (“We review a district court's decision to give a requested jury instruction for an abuse of discretion.”). But once the state pointed out that appellant had not properly objected to the instruction at the district court because his objection did not address the issue he now raises on appeal, appellant agreed that his claims here ought to be treated as arising from an unobjected-to error. Appellant was right to concede this point because “the purpose of an objection ... is to inform the court upon what ground the objector claims [error]. Hence a party must state his point so definitely that the court may intelligently rule upon it....” Nelson v. Chicago, M. & St. P. Ry., 28 N.W. 215, 216, 35 Minn. 170, 171 (1886).

“[B]efore an appellate court reviews an unobjected-to error, there must be (1) error; (2) that is plain; and (3) the error must affect substantial rights.” State v. Griller, 583 N.W.2d 736, 740 (Minn.1998). “If each of these prongs is met, [an appellate court] will address the error only if it seriously affects the fairness and integrity of the judicial proceedings.” State v. Kuhlmann, 806 N.W.2d 844, 852–53 (Minn.2011). The plain-error doctrine is codified in Minn. R.Crim. P. 31.02, which provides that “[p]lain error affecting a substantial right can be considered” even if the error was not brought to the district court's attention.

A familiar procedural principle provides that a party's rights in criminal and civil cases may be forfeited if they fail to make a timely objection. United States v. Olano, 507 U.S. 725, 731, 113 S.Ct. 1770, 1776, 123 L.Ed.2d 508 (1993) (citing Yakus v. United States, 321 U.S. 414, 444, 64 S.Ct. 660, 677, 88 L.Ed. 834 (1944)). While a defendant's failure to object to an error in the jury instructions typically constitutes a waiver of the right of appeal, “a reviewing court can reverse if the instruction constituted plain error.” State v. Prtine, 784 N.W.2d 303, 316 (Minn.2010). However, “anyone familiar with the work of courts understands that errors are a constant in the trial process, that most do not much matter, and that a reflexive inclination by appellate courts to reverse because of unpreserved error would be fatal.” Puckett v. United States, 556 U.S. 129, 134, 129 S.Ct. 1423, 1428, 173 L.Ed.2d 266 (2009) (quoting United States v. Padilla, 415 F.3d 211, 224 (1st Cir.2005) (en banc) (Boudin, C.J., concurring)) (quotation marks omitted).

A. The jury instructions were erroneous.

Appellant was convicted of his offenses on January 23, 2012, and sentenced on March 15, 2012. He filed his notice of appeal on June 11, 2012. These dates are important because, on September 19, 2012, the Minnesota Supreme Court issued its decision in State v. Milton, 821 N.W.2d 789 (Minn.2012), a case that directly addresses the jury instruction that appellant is challenging before us.

Milton appealed his conviction of charges of first-degree felony murder and attempted first-degree felony murder that the state brought in response to a botched drug deal. Milton, 821 N.W.2d at 797–98. When delivering its instructions on first-degree felony murder, the district court said, in relevant part, that the elements of the crime include a jury finding that “the defendant or a person whom the defendant intentionally aided caused the death of” the victim. Id. at 806.

The supreme court concluded that the instruction was erroneous because the district court failed to explain that ...