                          This opinion will be unpublished and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
                                     A14-0835

                                    State of Minnesota,
                                        Respondent,

                                            vs.

                                  Aaron Paul Hamilton,
                                       Appellant.

                                   Filed July 27, 2015
                                        Affirmed
                                   Halbrooks, Judge


                              Dakota County District Court
                              File No. 19HA-CR-13-1206

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

James C. Backstrom, Dakota County Attorney, G. Paul Beaumaster, Assistant County
Attorney, Hastings, Minnesota (for respondent)

Mary F. Moriarty, Chief Hennepin County Public Defender, Paul J. Maravigli, Assistant
Public Defender, Minneapolis, Minnesota (for appellant)

       Considered and decided by Hooten, Presiding Judge; Halbrooks, Judge; and

Reilly, Judge.

                         UNPUBLISHED OPINION

HALBROOKS, Judge

       Appellant challenges his conviction of possession of a firearm by an ineligible

person, arguing that (1) the district court plainly erred by failing to instruct the jury on
accomplice testimony and (2) the evidence was insufficient to convict him because the

accomplice testimony was not corroborated. We affirm.

                                         FACTS

      When appellant Aaron Hamilton and his girlfriend arrived at the apartment of their

recent acquaintance, S.W., one April morning, Hamilton had a handgun holstered on his

right hip. S.W. also saw the handgun on Hamilton’s hip when he left her apartment at

noon and when he returned at 3:00 p.m. Around 4:00 or 5:00 p.m., S.W. left to meet

friends for dinner. After hearing from her dinner companions that Hamilton had violent

tendencies, S.W. called 911, asked for help removing Hamilton from her apartment, and

stated that he had a gun. S.W. did not return to her apartment that evening.

      Hastings police officers responded to S.W.’s call, knowing that Hamilton had an

active department of corrections warrant. Hamilton’s girlfriend answered the door, was

taken into custody, and indicated that Hamilton had fled into a back bedroom. Officers

received no response to their calls to Hamilton to come out. Believing that they had

established a secure exterior perimeter and that Hamilton was in the back bedroom with a

gun, officers requested assistance from the Dakota County MAAG team.1

      When the MAAG team later entered the back bedroom, no one was there. Instead

they found a wide-open window with its screen pushed out and a loaded handgun, which

S.W. later identified as Hamilton’s. Swabs of the handgun contained insufficient genetic




1
   The MAAG team is a multi-agency team with specialized training to apprehend
barricaded suspects.

                                            2
information for any DNA comparison. Hours later, officers located Hamilton nearby,

barefoot, and wearing only a t-shirt in the cool mid-April weather.

       The state charged Hamilton with possession of a firearm by an ineligible person in

violation of Minn. Stat. § 609.165, subd. 1b(a) (2012).2 The jury found Hamilton guilty

of the firearm-possession charge and later made findings in support of aggravating

factors.   The district court imposed a sentence that included an upward departure.

Hamilton now challenges his conviction.

                                     DECISION

       Hamilton argues that S.W. could reasonably be considered an accomplice and that

therefore an accomplice-testimony jury instruction was required. A defendant cannot be

convicted based on the “testimony of an accomplice, unless it is corroborated by such

other evidence as tends to convict the defendant of the commission of the offense.”

Minn. Stat. § 634.04 (2012). District courts therefore “have a duty to instruct juries on

accomplice testimony in any criminal case in which it is reasonable to consider any

witness against the defendant to be an accomplice.” State v. Barrientos–Quintana, 787

N.W.2d 603, 610 (Minn. 2010) (quotation omitted). The district court’s “duty arises

from the very real possibility that a jury might discredit all testimony except the

accomplice testimony, and thus find the defendant guilty on the accomplice testimony

alone.” State v. Cox, 820 N.W.2d 540, 548 (Minn. 2012) (quotations omitted).



2
    The state also charged Hamilton with first-degree controlled-substance crime in
violation of Minn. Stat. § 152.021, subd. 2(a)(1) (2012), based on methamphetamine
found near the handgun. The jury acquitted Hamilton of this charge.

                                            3
       An accomplice is generally “one who could have been charged with and convicted

of the crime with which the [defendant] is charged.” State v. Swanson, 707 N.W.2d 645,

652 (Minn. 2006). “In order for a witness to be an accomplice for the purposes of section

634.04, there must be some evidence that the defendant and witness were accomplices.”

Id. at 653.   A witness who is alleged to have committed the crime instead of the

defendant is not an accomplice. Id. Nor is an accessory after the fact an accomplice.

State v. Henderson, 620 N.W.2d 688, 701 (Minn. 2001). And “[p]articipants guilty of

one crime are not accomplices of those guilty of a separate and distinct crime.” State v.

Swyningan, 304 Minn. 552, 556, 229 N.W.2d 29, 33 (1975).

       Our supreme court has held that if the question of a witness’s accomplice status is

“close,” the district court should instruct the jury on the accomplice-testimony rule and

leave the fact question as to the witness’s status for the jury’s determination. Barrientos–

Quintana, 787 N.W.2d at 612. “[T]he duty to instruct on accomplice testimony remains

regardless of whether counsel for the defendant requests the instruction.”         State v.

Strommen, 648 N.W.2d 681, 689 (Minn. 2002).

       Hamilton neither requested such an instruction nor objected to its omission.3

Accordingly, we review for plain error. See State v. Clark, 755 N.W.2d 241, 251 (Minn.


3
  The pattern jury instruction provides in part:
              You cannot find the defendant guilty of a crime on the
              testimony of a person who could be charged with that crime,
              unless that testimony is corroborated by other evidence that
              tends to convict the defendant of the crime. Such a person
              who could be charged for the same crime is called an
              accomplice.
10 Minnesota Practice, CRIMJIG 3.18 (5th ed. 2006).

                                             4
2008). Under that standard, an appellant must demonstrate that there is (1) error; (2) that

is plain; and (3) the error affected his substantial rights. State v. Griller, 583 N.W.2d

736, 740 (Minn. 1998). Plain error requires reversal only if “the fairness, integrity, or

public reputation of the judicial proceeding is seriously affected.” Barrientos–Quintana,

787 N.W.2d at 611 (quotation omitted).

       Because there is no evidence in the record that S.W. was an ineligible person or

that she ever possessed the handgun, S.W. could not have been charged with and

convicted of that crime. There is a similar absence of evidence that S.W. intentionally

aided, advised, hired, counseled, conspired with, or otherwise procured Hamilton to

possess the firearm. See In re Welfare of S.H.H., 741 N.W.2d 917, 920 (Minn. App.

2007) (applying Minn. Stat. § 609.05, subd. 1 (2004), and finding that the witness was an

accomplice because of his direct involvement in and encouragement of perpetrating the

crime).

       Although defense counsel argued in closing that the gun could have been S.W.’s,

this would not make her an accomplice to Hamilton’s possession. See Swanson, 707

N.W.2d at 652. “[I]n order to be an accomplice, the witness must have played a knowing

role in the crime—the witness’ mere presence at the scene is not sufficient.” State v.

Pendleton, 759 N.W.2d 900, 907 (Minn. 2009). We therefore conclude that there was no

basis to instruct the jury on the need for corroboration of accomplice testimony. Thus,

the district court did not err in omitting the instruction.

       Hamilton also argues that the evidence is insufficient to convict him of illegal

possession of a firearm because it was based solely on S.W.’s uncorroborated testimony.


                                               5
A conviction cannot be based on uncorroborated accomplice testimony. Minn. Stat.

§ 634.04. But a conviction can be based upon the testimony of a single witness who is

not an accomplice. State v. Foreman, 680 N.W.2d 536, 539 (Minn. 2004). Assessing

witness credibility and the weight of testimony is exclusively the province of the jury.

Pendleton, 759 N.W.2d at 909. Appellate courts “may assume that the jury credited the

state’s witnesses and rejected any contrary evidence.” Id.

      The state presented evidence that S.W. saw the handgun on Hamilton’s person,

that the handgun was found in a room from which Hamilton had fled through an open

window, and that Hamilton was later apprehended nearby in a state of undress,

suggesting that he had gone outside hurriedly. Attacking S.W.’s credibility was a critical

aspect of Hamilton’s defense, and Hamilton’s counsel emphasized in closing argument

the degree to which the prosecution relied on S.W.’s testimony. But the jury rejected

Hamilton’s arguments with respect to the firearm charge.        Because S.W. could not

reasonably be considered an accomplice to that crime and because witness credibility and

the weight of testimony is exclusively the province of the jury, we conclude that the

evidence was sufficient to support Hamilton’s conviction.

      Affirmed.




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