                          This opinion will be unpublished and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
                                     A15-0660

                                   State of Minnesota,
                                      Respondent,

                                           vs.

                                    Myles Ray Estes,
                                      Appellant.

                                   Filed April 11, 2016
                                        Affirmed
                                       Reilly, Judge

                             Hennepin County District Court
                               File No. 27-CR-13-37515

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

Michael O. Freeman, Hennepin County Attorney, Lee W. Barry, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Andrea Barts, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

         Considered and decided by Peterson, Presiding Judge; Reilly, Judge; and Jesson,

Judge.
                        UNPUBLISHED OPINION

REILLY, Judge

       Appellant challenges his convictions of aggravated robbery and argues that he is

entitled to a new trial because the district court plainly erred in instructing the jury on

accomplice liability. We affirm.

                                         FACTS

       In September 2013, T.S. and his brother R.E. met T.S.’s friend, H.M., in

Minneapolis. T.S. and R.E. followed H.M. into an alley to an abandoned residential

garage, where H.M. and three other men robbed them. Two of the men, including appellant

Myles Ray Estes, were carrying firearms. Estes pointed his firearm at T.S. while other men

went through T.S.’s pockets and took his money, cell phone, the key fob for his car, and

other belongings. T.S. later discovered unauthorized charges on his credit card from two

gas station stores in Minneapolis and Brooklyn Center. T.S. provided his credit card

records to the police. A police officer visited both gas station stores and retrieved video

surveillance recordings for the time frame matching the unauthorized charges and

corresponding with the time shortly after the robbery. The crime lab prepared still

photographs from the store videos and showed these photographs, as well as a series of

photographic line-ups, to T.S. T.S. identified Estes from these photographs.

       The state charged Estes with one count of being a prohibited person in possession

of a firearm and two counts of aiding and abetting first-degree aggravated robbery of the

two victims, T.S. and R.E. Estes entered a plea of not guilty, and the matter proceeded to

jury trial. The jury found Estes not guilty of being a prohibited person in possession of a


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firearm and guilty of both first-degree aggravated robbery offenses. The district court

instructed the jurors on aggravating factors and provided special verdict forms pertaining

to the aggravated robbery charges.       The jury found that the state proved beyond a

reasonable doubt that: (1) Estes committed the crimes as part of a group of three or more

people who all actively participated in the crimes; (2) Estes did not play a minor or passive

role in the crimes; and (3) Estes made no attempt to hinder or mitigate the crimes. The

district court committed Estes to the commissioner of corrections for 48 months on each

of the two counts, with the sentences to be served consecutively for an aggregate term of

96 months in prison. This appeal followed.

                                      DECISION

       The issue presented is whether the district court’s instructions to the jury regarding

accomplice liability constituted a plain error that affected Estes’s substantial rights. The

district court is allowed “considerable latitude” in selecting language for the jury

instructions. State v. Gatson, 801 N.W.2d 134, 147 (Minn. 2011). “When reviewing jury

instructions for error, we review the instructions in their entirety to determine whether they

fairly and adequately explain the law.” Id. Because Estes cannot demonstrate that his

substantial rights were prejudiced, he is not entitled to a new trial.

       The state charged Estes with two counts of aiding and abetting first-degree

aggravated robbery in violation of Minn. Stat. § 609.245, subd. 1 (2012). “Whoever, while

committing a robbery, is armed with a dangerous weapon or any article used or fashioned

in a manner to lead the victim to reasonably believe it to be a dangerous weapon, or inflicts

bodily harm upon another, is guilty of aggravated robbery in the first degree. . . .” Minn.


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Stat. § 609.245, subd. 1. “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.” Minn. Stat. § 609.05, subd. 1 (2012).

      The district court instructed the jury on aiding and abetting as follows:

                     The defendant is guilty of a crime committed by another
             person when the defendant has played an intentional role in
             aiding the commission of the crime and made no reasonable
             effort to prevent the crime before it was committed. Intentional
             role includes intentionally aiding, advising, hiring, counseling,
             conspiring with, or procuring another to commit the crime.

                    The defendant is guilty of a crime, however, only if the
             other person commits a crime. The defendant is not liable
             criminally for aiding, advising, hiring, counseling, conspiring,
             or otherwise procuring the commission of a crime, unless some
             crime, including an attempt, is actually committed.

      On the elements of aggravated robbery, the district court instructed the jury that:

                   The elements of Aggravated Robbery in the First
             Degree are:

                    First, the defendant, or someone he was aiding,
             advising, hiring, counseling, conspiring with, or procuring,
             took personal property from a person or that person’s presence,
             knowing that the defendant was not entitled to take it.

                    Second, the defendant or someone he was aiding,
             advising, hiring, counseling, conspiring with, or procuring,
             used force or the threat of imminent force against the person to
             overcome resistance or to compel acquiescence in the taking or
             carrying off of the personal property. The term threat of
             imminent force means the intentional creation in the person’s
             mind of an understanding that if he resisted or refused to
             cooperate, force would be immediately used against him.

                    Third, the defendant or someone he was aiding,
             advising, hiring, counseling, conspiring with, or procuring,
             was armed with a dangerous weapon. A firearm, whether


                                             4
              loaded or unloaded, is a dangerous weapon. Any article used
              or fashioned in a manner to lead the victim to reasonably
              believe it is a dangerous weapon also qualifies.

                    Fourth, the defendant’s act took place on or about
              September 23rd in Hennepin County.

                     If you find that each of these elements has been proven
              beyond a reasonable doubt, the defendant is guilty. If you find
              that any element has not been proven beyond a reasonable
              doubt, the defendant is not guilty.

       Estes argues that the district court failed to instruct the jury that it could not convict

him unless the state proved he knew his accomplices were going to commit a crime and

intended his presence or actions to further that crime. Estes did not raise this objection at

trial, and we therefore review for plain error. Failure to object to jury instructions may

result in waiver of the issue on appeal. State v. Vang, 774 N.W.2d 566, 581 (Minn. 2009).

But an appellate court may review an unobjected-to jury instruction using plain-error

analysis, which requires the defendant to establish that (1) there was an error; (2) the error

was plain; and (3) it affected his substantial rights. State v. Davis, 864 N.W.2d 171, 176

(Minn. 2015). If all three prongs are satisfied, we assess whether to address the error to

ensure fairness and the integrity of the judicial proceedings. State v. Griller, 583 N.W.2d

736, 740 (Minn. 1998).

       The state concedes that there was an error and that the error was plain because the

district court failed to instruct the jury that Estes knew his alleged accomplices were going

to commit aggravated robbery and intended his presence or actions to further the

commission of the crime. See State v. Milton, 821 N.W.2d 789, 805 (Minn. 2012)

(explaining that “element of ‘intentionally aiding’ embodies two important and necessary


                                               5
principles: (1) that the defendant ‘knew that his alleged accomplices were going to commit

a crime,’ and (2) that the defendant ‘intended his presence or actions to further the

commission of that crime’”) (quoting State v. Mahkuk, 736 N.W.2d 675, 682 (Minn. 2007).

We therefore turn to the third prong and consider whether the plain error affected Estes’s

substantial rights.

       An error affects a defendant’s substantial rights when it is “prejudicial and affect[s]

the outcome of the case.” Griller, 583 N.W.2d at 741. A defendant bears a “heavy burden”

of persuasion that an erroneous jury instruction had a significant effect on the jury’s verdict.

Kelley, 855 N.W.2d at 283. Estes argues that the district court failed to properly instruct

the jury on the elements of accomplice liability and that he is entitled to a new trial. In

State v. Watkins, the supreme court held “that the omission of an element of a crime in a

jury instruction does not automatically require a new trial.” 840 N.W.2d 21, 28 (Minn.

2013). Instead, the reviewing court conducts a “thorough examination of the record to

determine whether the omission of an element of a charged offense from the jury

instruction was sufficiently prejudicial in light of the standard of review.” Id. at 28-29.

We consider whether: “(1) the defendant contested the omitted element and submitted

evidence to support a contrary finding, (2) the State submitted overwhelming evidence to

prove that element, and (3) the jury’s verdict nonetheless encompassed a finding on that

element.” Id. at 29; see also Kelley, 855 N.W.2d at 283-84 (ruling an erroneous jury

instruction does not ordinarily significantly affect the jury’s verdict if there is “considerable

evidence of the defendant’s guilt”); State v. Larson, 787 N.W.2d 592, 601 (Minn. 2010)




                                               6
(holding defendant’s substantial rights were not affected where “considerable evidence”

supported jury’s verdict).

       Estes contends that the evidence of his guilt “was far from overwhelming,” and

argues that he did not take T.S. or R.E.’s belongings, was not linked to the stolen property,

and did not communicate with his accomplices during the robbery. However, the evidence

in the record demonstrates that Estes intentionally participated in the aggravated robberies

of T.S. and R.E. The district court held a jury trial over the course of five days and heard

testimony from T.S., the police officer, and two gas station store managers. At trial, T.S.

identified Estes as the man who pointed a silver firearm at him while other men went

through his clothing and robbed him, and the evidence submitted through witness

testimony corroborates the state’s case. T.S. discovered several unauthorized charges on

his credit card at two gas station stores. A Minneapolis police officer visited both gas

station stores, recovered video surveillance recordings, and had photographs made from

the videos. T.S. identified Estes as one of the individuals depicted in the photographs, and

also identified Estes in the photographic line-up.

       Although the jury instruction could have been clearer by adding the two elements

related to accomplice liability, the instruction overall fairly and correctly stated the

applicable law. Gulbertson v. State, 843 N.W.2d 240, 247 (Minn. 2014). Ample evidence

in the record supports the jury’s guilty verdict. The jury instructions, while erroneous,

were not “sufficiently prejudicial” to entitle Estes to a new trial. See Watkins, 840 N.W.2d

at 28-29.




                                             7
       Because we conclude that the three prongs of the plain-error test are not satisfied,

we do not address whether a new trial is required to ensure the fairness and integrity of the

judicial proceedings. See Griller, 583 N.W.2d at 740.

       Affirmed.




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