                          This opinion will be unpublished and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
                                     A14-2183

                                   State of Minnesota,
                                      Respondent,

                                           vs.

                                   Lisa Susan Decker,
                                       Appellant.

                                Filed December 14, 2015
                                       Affirmed
                                     Minge, Judge

                              Dakota County District Court
                              File No. 19HA-CR-13-2944


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

James C. Backstrom, Dakota County Attorney, Heather D. Pipenhagen, Assistant County
Attorney, Hastings, Minnesota (for respondent)

Julie Loftus Nelson, Nelson Criminal Defense & Appeals, PLLC, Minneapolis,
Minnesota (for appellant)


         Considered and decided by Connolly, Presiding Judge; Smith, Judge; and Minge,

Judge.





 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
                        UNPUBLISHED OPINION

MINGE, Judge

      Appellant Lisa Susan Decker challenges her convictions of aiding and abetting

first-degree controlled substance crime, aiding and abetting third-degree controlled

substance crime, and aiding and abetting fifth-degree controlled substance crime, arguing

that the district court committed plain error by failing to properly instruct the jury on

accomplice liability. We affirm.

                                        FACTS

      On July 9, 2013, police searched Decker’s home where she lived with her

boyfriend, Charles Erdmann, and her two children. Police found a significant quantity of

controlled substances in the master bedroom used by Decker and Erdmann. On her side

of the bed, police found her purse containing over three grams of methamphetamine and

a plastic bag containing more than half a gram of methamphetamine. On the far side of

the bedroom, police found a leather bag containing 90.2 grams of methamphetamine. In

the bathroom located within the master bedroom, police found drug paraphernalia, a

digital scale, hallucinogenic mushrooms, and small amounts of cocaine and

methamphetamine.

      In a statement to police, Decker admitted that she and Erdmann used the master

bedroom together. She identified their respective sides of the bed. She denied knowing

drugs were in the home but said she knew Erdmann was a drug addict and had suspected

“for quite some time” he was also a drug dealer. She also said that she knows Erdmann

carries methamphetamine in and out of the house.


                                           2
       Both Erdmann and Decker were charged with controlled-substance offenses.

Erdmann was tried first and convicted. At Decker’s trial, Erdmann testified that he had

been using and selling illegal drugs in the home, that all the drugs in the home belonged

to him, that when police entered the home he was in the master bedroom using drugs, that

when he heard police enter the home, he grabbed methamphetamine from the nightstand

and shoved it into Decker’s purse, and that he then went into the bathroom and began

flushing the toilet as a distraction.

       Erdmann further testified that Decker knew that he was using drugs, but was not

using drugs herself, and that he did not believe that Decker knew that he either was

selling drugs out of the home or had over 90 grams of methamphetamine in their

bedroom. Erdmann testified that he was still in a romantic relationship with Decker. The

record indicates that he winked at Decker when he entered the courtroom.

       A jury found Decker guilty of aiding and abetting first-degree possession of a

controlled substance, Minn. Stat. §§ 152.021, subd. 2(a)(1), 609.05, subd. 1 (2012);

aiding and abetting third-degree possession of a controlled substance, Minn. Stat.

§§ 152.023, subd. 2(a)(1) (2012), 609.05, subd. 1; and aiding and abetting fifth-degree

possession of a controlled substance, Minn. Stat. §§ 152.025, subd. 2(a)(1) (2012),

609.05, subd. 1.      The district court adjudicated Decker guilty of the first-degree

controlled substance offense and sentenced her to 104 months in prison.

                                        DECISION

       The issue raised by Decker in this appeal is whether the district court plainly erred

in its jury instruction on accomplice liability. Because the conviction and sentencing are


                                             3
only for the first-degree offense, we consider the instructions on that charge. The statute

provides that one is guilty as an accomplice if one “intentionally aids, advises, hires,

counsels, or conspires with” another to commit a crime. Minn. Stat. § 609.05, subd. 1.

Our caselaw requires that to convict, the state must prove “(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.” State v. Milton,

821 N.W.2d 789, 805 (Minn. 2012) (quotations omitted).

       With respect to the controlled-substance crime in the first degree, the district court

charged the jury as follows:

              [t]he Statutes of Minnesota provide that whoever intentionally
              aides, advises or conspires with another or others to
              unlawfully possess one or more mixtures of a total weight of
              twenty-five grams or more containing cocaine or
              methamphetamine, is guilty of a crime. The elements of a
              Controlled Substance [crime] in the First Degree are first, the
              defendant intentionally aided, advised or conspired with
              another or others to knowingly possess one or more mixtures
              of a total weight of 25 grams or more containing cocaine or
              methamphetamine.

The district court then proceeded to define “possess” as follows:

              the defendant possessed cocaine or methamphetamine if it
              was in a place under the defendant’s exclusive control to
              which other people did not normally have access or if found
              in a place to which others had access, defendant knowingly
              exercised dominion and control over it.

Next, the district court instructed the jury that to find Decker guilty it had to determine

that she “knew or believed that the substance possessed was cocaine or

methamphetamine.”



                                             4
       Before completing its charge to the jury, the district court added the following

general accomplice instruction:

              A defendant is guilty of a crime committed by another person
              when the defendant has intentionally aided the other person in
              committing it or has intentionally advised, hired, counseled,
              or otherwise procured the other person to commit it. A
              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 or
              conspiring or otherwise procuring the commission of a crime
              unless some crime is actually committed.

This language is taken from an out-of-date criminal jury instruction guide (CRIMJIG).

The current CRIMJIG has been updated to clearly set forth the knowledge and intent

requirements as articulated in Milton. Compare 10 Minnesota Practice, CRIMJIG 4.01

(2006), with 10 Minnesota Practice, CRIMJIG 4.01 (Supp. 2014-15).

       On appeal, Decker argues that because the Milton requirements were not clearly

articulated to the jury, we must reverse. However, Decker did not object to the jury

instruction as given. Therefore, we review for plain error. State v. Griller, 583 N.W.2d

736, 740 (Minn. 1998). Plain error is (1) error, (2) that is plain, and (3) affects the

defendant’s substantial rights. Id. A defendant’s substantial rights are affected if the

error was prejudicial. Id. at 741. Prejudicial error is present when “there is a reasonable

likelihood that the giving of the instruction in question would have had a significant

effect on the verdict of the jury.” Id. (quotation omitted). If all three elements are met,

we must determine whether we “should address the error to ensure fairness and the

integrity of the judicial proceedings.” Id. at 740.




                                              5
       The state concedes that because the district court’s general accomplice liability

instruction does not follow Milton and the current jury-instruction guide, there is error

that is plain. But the state argues that when the district court’s jury instructions are read

as a whole, they make a finding of guilt more difficult, are actually favorable to Decker,

and, therefore, did not affect her substantial rights. To evaluate this issue, we consider

the set of instructions for the first-degree offense.

       In the accomplice-to-the-first-degree-offense instruction, the district court’s

language quoted above requires the jury to find knowing possession. This requirement is

a result of the use of the words “to knowingly possess one or more mixtures of a total

weight of 25 grams,” followed by the definition of possession and the requirement that

“the defendant knew or believed that the substance possessed was cocaine or

methamphetamine.” Thus, to find Decker guilty, the jury had to find that she knowingly

and actually or constructively possessed 25 grams of cocaine or methamphetamine.

Under the district court’s instructions, the jury also had to find that Decker intentionally

aided, advised, or conspired with Erdmann to possess the required controlled substance in

the required amount for each offense.              The district court’s instructions define

intentionally as meaning “the actor either has a purpose to do the thing or cause the result

specified or believes that the act performed by the actor, if successful, will cause the

result.” In sum, rather than just requiring the jury to find that Decker knew Erdmann

possessed the controlled substance and that Decker’s presence or actions were intended to

further his possession, the instructions require that Decker knowingly and actually or

constructively possessed the substance and that she aided, advised, or conspired with


                                               6
Erdmann with the intent of furthering the crime. This goes beyond the requirements of

the Milton ruling.

       Decker argues that the jury’s questions during deliberations were focused solely

on accomplice liability, not constructive possession. The jury submitted three questions

to the district court. Each time, after conferring with the prosecutor and defense counsel,

the district court referred the jury back to the instructions as originally given. The jury’s

questions do not indicate, as Decker suggests, that the jury was concerned only with

accomplice liability. The jury’s questions indicate that it was considering the level of

knowledge required for constructive possession as well as whether Decker intentionally

aided Erdmann in possessing the controlled substance.

       The issue in our case is similar to that in State v. Bahtuoh, in which the district

court failed to “expressly instruct the jury on the two components of the mental state

required for accomplice liability.” 840 N.W.2d 804, 812 (Minn. 2013). The district court

incorporated an accomplice liability instruction into its instruction on the offense of first-

degree murder and gave the jury a separate instruction on accomplice liability that did not

include the Milton requirements. Id. at 812, 814. The Bahtuoh jury was instructed, in

part, that to find the defendant guilty they had to find that “the defendant, acting alone or

intentionally aiding and abetting another, acted with the intent to kill Kyle Parker.” Id. at

814. Our supreme court determined that this instruction heightened the state’s burden of

proof by actually requiring that Bahtuoh possess an intent to kill. Id. at 813-14. The

supreme court held that “any error favored Bahtuoh and therefore did not affect his

substantial rights.” Id. at 815 n.1 Similarly, in the instant case, the district court’s


                                              7
instructions required the jury to find both that Decker possessed the controlled substance

and that she intentionally aided, advised, or conspired with another to possess the

controlled substance.

       We conclude that although the district court’s failure to properly instruct the jury

on the required mental state for accomplice liability was plain error, the error did not

affect Decker’s substantial rights.

       Affirmed.




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