                         This opinion will be unpublished and
                         may not be cited except as provided by
                         Minn. Stat. § 480A.08, subd. 3 (2012).

                               STATE OF MINNESOTA
                               IN COURT OF APPEALS
                                     A14-0292

                                   State of Minnesota,
                                       Respondent,

                                            vs.

                                    Sean David Kilbo,
                                       Appellant.

                               Filed December 15, 2014
                   Affirmed in part, reversed in part, and remanded
                                   Bjorkman, Judge


                              Dakota County District Court
                              File No. 19HA-CR-12-3659

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

James C. Backstrom, Dakota County Attorney, Dain L. Olson, Assistant County
Attorney, Hastings, Minnesota (for respondent)

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

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

Bjorkman, Judge.

                        UNPUBLISHED OPINION

BJORKMAN, Judge

      Appellant challenges his conviction of aiding and abetting making terroristic

threats, arguing that the district court committed prejudicial plain error by not giving an
accomplice-testimony jury instruction and abused its discretion by not instructing the jury

that “mere presence” is insufficient to establish accomplice liability. Appellant also

argues that the district court improperly stayed imposition of sentence for both his

terroristic-threats and aiding-and-abetting fifth-degree-assault convictions because they

arose from the same behavioral incident. We affirm appellant’s convictions but reverse

his sentences and remand for resentencing.

                                         FACTS

       On June 12, 2011, appellant Sean Kilbo and another young man, C.K., were in

Meadowlands Park in Eagan with Kilbo’s then-girlfriend, K.H., and several other people.

Kilbo and C.K. were having a “freestyle battle.” C.K. began criticizing Kilbo’s rapping,

and the two got into a physical fight. When Kilbo stopped fighting, C.K. left. Later that

night, C.K. received threatening phone calls from Kilbo, and he reported the incident at

the park to the police.

       The next day, Kilbo discussed with K.H. and several others a plan to lure C.K.

back to the park to take “revenge.” K.H. called C.K., saying that she wanted to talk to

him about the incident. Through a series of text messages, they agreed to meet at the

park. C.K. joined K.H. and two other females, and they began walking down a park trail.

C.K. heard someone say, “Get him,” or “Let’s get him.” Kilbo jumped out of the bushes

and rushed up to C.K. Another male, whom C.K. believed to be Kilbo’s friend, told

Kilbo to hit C.K. Kilbo did so, and the two began fighting. While C.K. was hitting Kilbo

on the ground, Kilbo called to his friend to come over and shoot C.K. The friend pulled

out a BB gun and pointed it at C.K., who thought the gun was a real firearm and “backed


                                             2
off.” But Kilbo struck him, and the two resumed fighting. Kilbo’s friend shot C.K. with

the BB gun, and one of the females shot C.K. in the back with a taser and sprayed him in

the face with mace. While C.K. was blinded by the mace, someone punched him in the

face. Then everyone left, and C.K. walked to a nearby house where he used a hose to

wash off and asked the homeowner to call the police.

       Eagan Police Detective Heather Berens was assigned to investigate the case. She

interviewed C.K., Kilbo, and K.H. Kilbo acknowledged that he fought with C.K. but

asserted that he was the victim, denied that anyone other than K.H. and C.K. was present,

and denied that anyone used a BB gun, taser, or mace.            K.H. initially denied any

knowledge of the incident, but eventually admitted that she was present and that Kilbo

and several other individuals were involved, all looking for “revenge” after the first fight.

       Kilbo was charged with aiding and abetting making terroristic threats (brandishing

the BB gun) and aiding and abetting fifth-degree assault. Both C.K. and K.H. testified

for the state, and the jury found Kilbo guilty on both counts. The district court convicted

Kilbo of both offenses, stayed imposition of sentence as to both convictions, and placed

Kilbo on probation. Kilbo appeals.

                                      DECISION

I.     The omission of an accomplice-testimony instruction did not impair Kilbo’s
       substantial rights.

       Kilbo argues that the district court erred by not instructing the jury that accomplice

testimony must be corroborated.        Kilbo did not request an accomplice-testimony

instruction or object to its absence. Accordingly, we review for plain error. See State v.



                                              3
Clark, 755 N.W.2d 241, 251 (Minn. 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.” State v. Barrientos–Quintana, 787 N.W.2d 603, 611

(Minn. 2010) (quotation omitted).

       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 (2010). Accordingly, district courts

must give an accomplice instruction in any “case in which it is reasonable to consider any

witness against the defendant to be an accomplice.” Barrientos–Quintana, 787 N.W.2d

at 610 (quotation omitted). This “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).

       The parties dispute whether K.H. could reasonably be considered an accomplice.

A witness is considered an accomplice if he or she could have been charged with and

convicted of the crime with which the defendant is charged. Barrientos–Quintana, 787

N.W.2d at 610. Where 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. Id. at 612. This record

presents at least a fact issue as to whether K.H. was an accomplice, particularly in light of


                                             4
the evidence that she was part of a group planning “revenge” against C.K. and that she

brought C.K. to the park in furtherance of that plan. On such a record, existing caselaw

requires an accomplice-testimony instruction. See id. We conclude the district court

plainly erred by omitting the instruction. See State v. Ramey, 721 N.W.2d 294, 302

(Minn. 2006) (holding that an error is plain if it “contravenes case law, a rule, or a

standard of conduct”).

       However, that error warrants reversal only if it impaired Kilbo’s substantial rights.

An appellant bears a “heavy burden” under this third prong of the plain-error test; he

must show that “there is a reasonable likelihood that [the error] had a significant effect on

the jury verdict.”   Barrientos–Quintana, 787 N.W.2d at 612 (alteration in original)

(quotation omitted). When the record contains the required corroboration, reversal is

unwarranted.    See id. at 613 (holding that defendant’s substantial rights were not

impaired by plainly erroneous omission of accomplice-testimony instruction because “the

corroborating evidence was sufficient”).

       Kilbo argues that he meets his burden because there is no evidence corroborating

K.H.’s testimony that Kilbo and his friend planned revenge against C.K., and that Kilbo

knew the other male possessed the BB gun and called out to him to shoot C.K. We

disagree.   Corroborative evidence does not need to confirm every aspect of an

accomplice’s testimony.     See Clark, 755 N.W.2d at 255 (rejecting analysis focused

“narrowly on whether the evidence corroborated specific statements during [the

accomplice’s] testimony”). Rather, corroborative evidence need only “affirm the truth of

the accomplice’s testimony and point to the guilt of the defendant in some substantial


                                             5
degree.”     State v. Reed, 737 N.W.2d 572, 584 (Minn. 2007) (quotation omitted).

“Circumstantial evidence indicating the defendant’s participation in the crime is

sufficient to corroborate the accomplice’s testimony.” State v. Bowles, 530 N.W.2d 521,

532 (Minn. 1995). The record as a whole reveals sufficient corroboration.

         First, C.K.’s testimony both affirms the truth of K.H.’s testimony and

independently establishes that Kilbo aided and abetted making terroristic threats for

displaying a BB gun.1 C.K. testified that “[Kilbo’s] friend came up with a BB gun” while

he and Kilbo were fighting, and his testimony supports an inference that Kilbo was not

surprised to see the gun. Specifically, C.K. testified that he stopped fighting with Kilbo

because he believed the gun was “real,” but Kilbo reengaged him while he was focused

on the gun and “then [Kilbo’s] friend came up and shot” him. And C.K. testified that

Kilbo, the male with the BB gun, and the females all left together. This testimony as a

whole establishes that Kilbo and his friend acted cooperatively to terrorize C.K. by

brandishing the BB gun at him in a threatening manner. See Minn. Stat. § 609.713, subd.

3(a) (2010) (defining terroristic threats).

         Second, the record contains ample additional evidence that affirms the truth of

K.H.’s testimony. It is undisputed that C.K. and Kilbo fought on June 12, and substantial

evidence establishes that Kilbo threatened C.K. later that evening, which establishes a

motive for the terroristic-threats offense. See Clark, 755 N.W.2d at 254-55 (including

defendant’s participation in preparation for the criminal act and motive as facts that may


1
    Kilbo does not challenge his assault conviction.


                                               6
corroborate an accomplice’s testimony). And Kilbo’s statement to Detective Berens was

inadequate and inconsistent with the physical evidence. See State v. Pederson, 614

N.W.2d 724, 732 (Minn. 2000) (noting that inadequacies in defendant’s statements and

suspicious or unexplained conduct before or after the crime may corroborate accomplice

testimony). Kilbo confirmed that he was at the park and fought with C.K. on June 13 but

denied both the other male’s presence and the presence of any weapons. In light of the

uncontroverted evidence establishing that C.K. was shot by a BB gun and a taser and

sprayed with mace, Kilbo’s denials tend to corroborate K.H.’s more inculpatory

testimony.

       In sum, the record contains extensive evidence corroborating K.H.’s testimony and

establishing Kilbo’s guilt. There is no reasonable likelihood that the omission of an

accomplice-testimony instruction had a significant effect on the jury verdict.

Accordingly, we conclude that Kilbo’s plain-error challenge fails.

II.    The district court did not abuse its discretion by denying Kilbo’s request for a
       “mere presence” instruction.

       A district court has “considerable latitude” in crafting jury instructions. State v.

Baird, 654 N.W.2d 105, 113 (Minn. 2002). Jury instructions are viewed as a whole to

determine whether they accurately state the law in a manner that the jury can understand.

State v. Scruggs, 822 N.W.2d 631, 642 (Minn. 2012). We review the refusal to give a

requested instruction for abuse of discretion. State v. Cole, 542 N.W.2d 43, 50 (Minn.

1996). And if a district court erred in its instructions, we determine whether the error was

harmless. State v. Pendleton, 759 N.W.2d 900, 907 (Minn. 2009).



                                             7
       A party is entitled to an instruction on his theory of the case if there is evidence to

support it. State v. Coleman, 373 N.W.2d 777, 781 (Minn. 1985). But a court need not

give a requested instruction if it determines that the instruction will mislead or confuse

the jury. See State v. Larson, 787 N.W.2d 592, 601 (Minn. 2010). When reviewing

whether a particular instruction should have been given, we view the evidence in the light

most favorable to the party requesting the instruction. Turnage v. State, 708 N.W.2d 535,

545–46 (Minn. 2006).

       Kilbo requested an instruction that “mere presence” is insufficient to prove that he

aided and abetted making terroristic threats. See State v. Williams, 759 N.W.2d 438, 443

(Minn. App. 2009) (“Mere presence at the scene of a crime does not, by itself, prove

liability for the crime of another . . . .”). The district court agreed with the state that

“those are not the facts alleged in this case” and declined to give the instruction. Kilbo

contends that the evidence, viewed in the light most favorable to him, supports his theory

that he was “merely present” when his friend made the terroristic threat. We disagree.

Viewing all of the evidence, including K.H.’s corroborated testimony and Kilbo’s own

statement to Detective Berens, in the light most favorable to Kilbo yields, at best, an

explanation that Kilbo was fighting with C.K. when his friend unexpectedly threatened

C.K. with a BB gun. But Kilbo then reengaged C.K. and continued to fight while others

shot C.K. with the gun and a taser and sprayed him with mace. We conclude the district

court did not abuse its discretion by determining that this evidence does not support a

“mere presence” instruction.




                                              8
       Finally, Kilbo argues in his reply brief that the district court erred by not

instructing the jury that in order to find Kilbo guilty as an accomplice, it must find that he

knew his alleged accomplice was going to commit a crime and he intended his presence

or actions to further the commission of that crime, as required under State v. Milton, 821

N.W.2d 789, 808 (Minn. 2012). This argument is related to the issue of “mere presence”

but is materially different, and the state did not raise it in its brief. Accordingly, it is not

properly before us, and we decline to address it. See State v. Yang, 774 N.W.2d 539, 558

(Minn. 2009) (holding that challenge to accomplice-liability instruction raised for the first

time in reply brief was waived).

III.   The district court erred by staying imposition of sentence as to both
       convictions.

       When a single behavioral incident results in the violation of multiple criminal

statutes, the offender may be convicted of multiple offenses but punished and sentenced

for only one of the offenses. Minn. Stat. § 609.035, subd. 1 (2010); see Ture v. State, 353

N.W.2d 518, 523 (Minn. 1984). The state has the burden of proving that offenses are

separate behavioral incidents before multiple sentences may be imposed.                State v.

Williams, 608 N.W.2d 837, 841–42 (Minn. 2000). The record indicates that Kilbo’s

assault and terroristic-threats convictions shared a common time, place, and criminal

objective, and the state agrees that they are based on a single behavioral incident. On this

record, we conclude the district court erred by pronouncing sentences for both

convictions. We reverse Kilbo’s sentences and remand for the district court to vacate the

assault sentence and resentence Kilbo solely on the terroristic-threats conviction. See



                                               9
State v. Kebaso, 713 N.W.2d 317, 322 (Minn. 2006) (stating that Minn. Stat. § 609.035

contemplates a defendant who commits multiple crimes as part of the same behavioral

incident will be sentenced on the most serious offense).

      Affirmed in part, reversed in part, and remanded.




                                            10
