                          This opinion will be unpublished and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
                                     A15-1214

                                    State of Minnesota,
                                        Respondent,

                                            vs.

                                   Tarey Marquan Hill,
                                       Appellant.

                                   Filed June 27, 2016
                                        Affirmed
                                     Johnson, Judge

                              Hennepin County District Court
                                File No. 27-CR-14-34009

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Michael O. Freeman, Hennepin County Attorney, Elizabeth R. Johnston, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Jennifer Workman Jesness,
Assistant Public Defender, St. Paul, Minnesota (for appellant)

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

Judge.

                         UNPUBLISHED OPINION

JOHNSON, Judge

         A Hennepin County jury found Tarey Marquan Hill guilty of attempted first-degree

burglary.    Hill argues that the district court erred by not giving the jury a proper
accomplice-liability instruction. The state concedes that the district court plainly erred in

its jury instructions but argues that the error did not affect Hill’s substantial rights. We

agree with the state that the district court’s error did not affect Hill’s substantial rights

because the jury likely found Hill guilty as a principal. Therefore, we affirm.

                                          FACTS

       On November 18, 2014, at approximately 10:30 a.m., a Minneapolis resident, J.Y.,

called 911 to report that two or three persons, whom she did not recognize, were trying to

break into her home. J.Y. reported that the unknown persons repeatedly rang the doorbell

and knocked on the front door and back patio door and were trying to break into a window.

       Within minutes, two police officers arrived in a squad car. The officers observed

two persons near J.Y.’s house. They saw one man, J.W., crouched down near the side of

the house. They saw another man, later identified as Hill, in the alley behind the house.

One officer testified that he made eye contact with Hill and that Hill’s “eyes got very big.”

The officer arrested Hill in the alley.

       When he was arrested, Hill had a bleeding cut on his right hand. Drops of Hill’s

blood were found on the door of the garage of the caller’s house. Hill gave the officer an

unclear explanation as to how he cut his hand. Hill also gave the officer conflicting

statements about his presence in that location, saying first that he had not been near J.Y.’s

home but saying later that he knocked on the doors of the house but did not attempt to enter

the house. Police officers found two distinct sets of footprints in the snow around the

perimeter of the house.




                                             2
       The state charged Hill with attempted first-degree burglary of an occupied dwelling,

in violation of Minn. Stat. §§ 609.05, subd. 1, 609.17, 609.582, subd. 1(a) (2014). The

complaint described the charge as follows:

              That on or about November 18, 2014, in Minneapolis,
              Hennepin County, Minnesota, [Hill], acting alone or
              intentionally aiding, advising, hiring, counseling or conspiring
              with [J.W.] or otherwise procuring the other to commit the
              crime, either directly or as an accomplice, attempted to enter a
              dwelling, without consent and with intent to commit a crime or
              committed a crime while in the dwelling and another person,
              [J.Y.], who was not an accomplice, was in the dwelling at any
              time while [Hill] attempted to enter the dwelling.

       The case was tried to a jury in February 2015. The state called six witnesses: J.Y.,

three police officers who responded to the 911 call, a police investigator, and a forensic

scientist who tested the blood sample collected at the scene. Hill did not offer any evidence.

       During the instructions conference, the state noted that the complaint charged Hill

with “aiding and abetting attempted burglary in the first degree” but that the verdict form

described the charge as simply “attempted burglary in the first degree.” The state asked

the district court to revise the verdict form to “reflect the charge” of aiding and abetting

attempted first-degree burglary. The district court denied the state’s request on the grounds

that the “verdict form is correct in its present form” and that the instructions, which include

the phrase “acting alone or intentionally aiding, advising, counseling, or conspiring with

another,” would be sufficient guidance for the jury in light of the offense charged. Neither

party objected to the district court’s jury instructions.

       In closing argument, the state argued that the jury should find Hill guilty both as a

principal and as an accomplice. Specifically, the prosecutor first argued that “the defendant


                                               3
intended to commit the crime of first-degree burglary,” that he “did an act that was a

substantial step toward committing the crime,” that he “attempted to enter a building

without consent,” and that he “intended to get inside the house to commit a theft.” In

addition, the prosecutor argued that the case was “also charged as aiding and abetting,” that

Hill “was working with” J.W., and that Hill “intended that his presence and actions would

aid the commission of the burglary.” Hill’s attorney argued that the state’s evidence is

insufficient to prove anything more than Hill’s mere presence near the scene and also

argued that there is a reasonable doubt as to “whether there was in fact a crime at all.”

       The jury returned a verdict form stating, “We, the jury, find the defendant guilty of

the charge of Attempted Burglary in the First Degree.” The district court imposed a

sentence of 16.5 months of imprisonment. Hill appeals.

                                       DECISION

       Hill argues that the district court erred in its jury instructions. Specifically, he argues

that the district court erred by not giving an accomplice-liability instruction and that the

absence of such an instruction prevented the jury from fully considering his defense that

“he was at the scene but did not intend his actions to aid [J.W.]”

       A district court must instruct the jury in a way that “fairly and adequately explain[s]

the law of the case” and does not “materially misstate[] the applicable law.” State v. Koppi,

798 N.W.2d 358, 362 (Minn. 2011). An appellate court reviews jury instructions “as a

whole to determine whether [they] accurately state the law in a manner that can be

understood by the jury.” State v. Kelley, 855 N.W.2d 269, 274 (Minn. 2014). A district

court has “considerable latitude” in selecting the language of jury instructions. State v.


                                                4
Gatson, 801 N.W.2d 134, 147 (Minn. 2011) (quotation omitted). Accordingly, this court

applies an abuse-of-discretion standard of review to a district court’s jury instructions.

Koppi, 798 N.W.2d at 361.

       Hill concedes that he did not object in the district court to the absence of an

accomplice-liability instruction and that the lack of an objection requires this court to

review only for plain error. See Minn. R. Crim. P. 31.02. Under the plain-error test, an

appellant is entitled to relief on an issue to which no objection was made at trial only if

(1) there is an error, (2) the error is plain, and (3) the error affects the appellant’s substantial

rights. State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998). If these three requirements

are satisfied, the appellant also must satisfy a fourth requirement, that the error “seriously

affects the fairness and integrity of the judicial proceedings.” State v. Little, 851 N.W.2d

878, 884 (Minn. 2014). If an appellate court concludes that any requirement of the plain-

error test is not satisfied, the appellate court need not consider the other requirements. State

v. Brown, 815 N.W.2d 609, 620 (Minn. 2012).

       The state concedes that the district court committed error by not giving an

accomplice-liability instruction and further concedes that the error is plain. The district

court appears to have reasoned that an instruction on the concept of aiding and abetting

was unnecessary because of the language of the statute under which Hill was charged and

the language of the complaint in this case. The applicable statute states, “Whoever enters

a building without consent and with intent to commit a crime, or enters a building without

consent and commits a crime while in the building, either directly or as an accomplice,

commits burglary in the first degree,” if the building entered is a dwelling and a person is


                                                 5
present in the building when the burglar enters or is in the building. See Minn. Stat.

§ 609.582, subd. 1(a) (emphasis added). The complaint alleges that Hill, “acting alone or

intentionally aiding, advising, hiring, counseling or conspiring with [J.W.] or otherwise

procuring the other to commit the crime, either directly or as an accomplice, attempted to

enter a dwelling, without consent and with intent to commit a crime . . . .” The supreme

court caselaw, however, requires an instruction that sufficiently explains the concept of

aiding and abetting. Specifically, “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.” Kelley, 855

N.W.2d at 274. Furthermore, a district court should explain the law concerning aiding and

abetting in a separate instruction, not in a “hybrid instruction” that incorporates the theory

of accomplice liability into the elements of the offense. State v. Huber, 877 N.W.2d 519,

524-25 nn. 3-4 (Minn. 2016). Thus, we agree with the state that the district court in this

case did not instruct the jury in accordance with Kelley and Huber and that its failure to do

so constitutes plain error. See id. at 524-25 (concluding that error in accomplice-liability

instruction is plain in light of Kelley); Kelley, 855 N.W.2d at 275-77 (holding that second

requirement of plain-error is determined based on law in existence at time of appellate

review and concluding that error in accomplice-liability instruction is plain in light of State

v. Milton, 821 N.W.2d 789 (Minn. 2012)).

       The parties’ concessions bring us to the third requirement of the plain-error test,

which asks whether the district court’s plain error affected the appellant’s substantial rights.


                                               6
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.” Id. at 741. “In the context of

jury instructions, . . . an error affects substantial rights when there is a reasonable likelihood

that a more accurate instruction would have changed the outcome in this case.” State v.

Gutierrez, 667 N.W.2d 426, 434-35 (Minn. 2003) (quotation omitted). An appellant bears

a “heavy burden” in seeking to satisfy the third requirement of the plain-error test. State v.

Davis, 820 N.W.2d 525, 535 (Minn. 2012).

       Hill contends that the district court’s plain error affected his substantial rights

because he elicited evidence that he was merely present at the scene, the state did not have

overwhelming evidence that he aided and abetted J.W., and the jury’s verdict did not

encompass a finding that he aided and abetted J.W. See State v. Watkins, 840 N.W.2d 21,

29 (Minn. 2013). The state contends in response that the district court’s plain error did not

affect Hill’s substantial rights because he was charged both as a principal and as an

accomplice and the jury likely found him guilty as a principal.

       The state correctly notes that Hill’s argument assumes that he was charged solely as

an accomplice. If that were so, a plain error in instructing the jury on accomplice liability

might have affected the jury’s verdict. Compare Huber, 877 N.W.2d at 525-27 (concluding

that plain error affected substantial rights of appellant convicted of aiding and abetting

second-degree murder), with Kelley, 855 N.W.2d at 283-84 (concluding that plain error did

not affect substantial rights of appellant convicted of aiding and abetting first-degree

aggravated robbery), and Milton, 821 N.W.2d at 809-10 (concluding that plain error did

not affect substantial rights of appellant convicted of aiding and abetting attempted first-


                                                7
degree felony murder). But Hill was charged with committing attempted burglary in two

ways: as a principal and as an accomplice. Of those two theories, liability as a principal

was the state’s primary theory. The prosecutor began his closing argument by reviewing

the evidence supporting the allegation that Hill committed attempted burglary as a

principal. The victim reported that more than one person was trying to enter her home, and

only two persons were apprehended. When officers arrived in response to the victim’s 911

call, they found Hill in the alley behind the house. The officers found two sets of footprints

outside the house. The officers found Hill with a bleeding cut on his hand and found his

blood on the garage door. This evidence supports the conclusion that Hill committed

attempted burglary as a principal. Thus, the jury likely found Hill guilty based on the

evidence and argument that he committed attempted burglary as a principal.

       The prosecutor’s argument concerning the evidence that Hill committed attempted

burglary as an accomplice was secondary in terms of both sequence and duration.

Whatever effect the district court’s plain error might have had on the jury’s deliberation

would be limited to the state’s secondary theory of liability. But the state’s secondary

theory of liability is superfluous. Because the jury’s verdict likely was based on the state’s

primary theory that Hill is liable as a principal, Hill has not established a reasonable

likelihood that the district court’s plain error, which concerns liability as an accomplice,

“changed the outcome in this case.” See Gutierrez, 667 N.W.2d at 434-35. Because Hill

cannot satisfy the third requirement of the plain-error test, he is not entitled to a new trial.

       Affirmed.




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