                        This opinion will be unpublished and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
                                   A15-1466

                                 State of Minnesota,
                                    Respondent,

                                         vs.

                              Tommy Ray Morgan, Sr.,
                                   Appellant.

                               Filed August 15, 2016
                                     Affirmed
                                Rodenberg, Judge

                           St. Louis County District Court
                            File No. 69DU-CR-14-1710

Lori Swanson, Attorney General, Edwin W. Stockmeyer, Assistant Attorney General,
St. Paul, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Charles F. Clippert, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

      Considered and decided by Rodenberg, Presiding Judge; Peterson, Judge; and

Bjorkman, Judge.

                       UNPUBLISHED OPINION

RODENBERG, Judge

      On appeal from his multiple convictions arising from a home invasion, appellant

Tommy Ray Morgan, Sr., argues that the district court improperly determined that

alternative-perpetrator evidence was inadmissible, and that it erroneously denied his
request for a special jury instruction concerning the reliability of eyewitness-

identification testimony. We affirm.

                                         FACTS

       At around 11:00 p.m. on May 17, 2014, a male intruder broke the side door of

J.A.M.’s house, entered, and appeared in her bedroom doorway.           The intruder was

wearing a black hooded sweatshirt, black pants, a nylon stocking over his face, and white

latex gloves. He demanded that J.A.M. give him jewelry and money. J.A.M. told the

intruder where one of her purses was located, and she gave him a jewelry box and her cell

phone. The intruder stole two purses, the jewelry box and contents, and the cell phone.

       As the intruder was leaving, he threw a vase at J.A.M., striking her in the face.

The intruder had J.A.M.’s cell phone, and she did not have a land telephone line, so she

went to her neighbor’s house to call 911. An ambulance took J.A.M. to the hospital.

J.A.M. suffered numerous cuts and fractures to her face, internal bleeding on her brain,

and damage to her right tear duct. She underwent numerous procedures to address her

injuries.

       Sometime after the robbery, appellant knocked on the door of his cousin’s home

and offered to sell her some jewelry.1 Appellant’s cousin, T.D., declined appellant’s


1
  The testimony at trial and record evidence is inconsistent concerning the exact timeline
of events, including the precise date of appellant’s jewelry-sale offer. Appellant does not
argue, however, that the evidence is insufficient to support his convictions. And the
precise dates of T.D.’s involvement are unnecessary to support the jury’s verdicts. We
view the facts concerning T.D.’s involvement in the light most favorable to the jury’s
verdicts. See State v. Fox, 868 N.W.2d 206, 223 (Minn. 2015) (viewing the facts in the
light most favorable to the jury’s verdict in a challenge to the sufficiency of the
evidence).

                                            2
offer. As appellant was leaving, however, he dropped a gold ring with a diamond. On

May 19, T.D. took that ring to Duluth Police Officer Michael Erickson and told him

about appellant having offered to sell her some jewelry. Officer Erickson brought the

ring to J.A.M, who immediately identified it as her mother’s wedding ring.

         On May 20, 2014, J.A.M. told Duluth Police Sergeant Matthew McShane that

there had been fraudulent transactions on credit and debit cards that were stolen during

the home invasion. Sergeant McShane obtained security footage from a convenience

store and a bank automated teller machine (ATM) where the fraudulent transactions took

place.    Upon reviewing the footage from the convenience store, Sergeant McShane

learned that C.J., later determined to be another cousin of appellant, used J.A.M’s credit

card to make a purchase. Footage from the ATM showed a male with a tattoo on his

neck. The man thrice attempted to use J.A.M.’s debit card to withdraw money from her

bank account. All three withdrawal requests, for $4,000, $400, and $160, were declined.

         Also on May 20, 2014, police officers executed a search warrant at C.J.’s

residence, where appellant was also residing. The officers found J.A.M.’s property,

including her credit cards, purses, jewelry, and cell phone. Some of J.A.M.’s credit cards

and paperwork were found near appellant’s medical paperwork. Another man, E.B., was

using J.A.M.’s cell phone when the officers arrived. The officers found other evidence in

the home, including two white, latex gloves that contained only E.B.’s DNA and an ATM

receipt indicating that an incorrect personal ID had been entered.

         On May 21, 2014, Investigator David Decker of the Duluth Police Department

interviewed appellant’s sister, K.M., who said that she and appellant were staying at


                                             3
C.J.’s home on the night of May 17. K.M. told Investigator Decker that appellant was in

and out of the apartment throughout the evening, but returned shortly after midnight with

several purses, credits cards, jewelry, and a driver’s license of “an older white woman

with blonde hair wearing a green shirt.” This description matched J.A.M.’s physical

appearance. Appellant told K.M. that he got the items by kicking in a door.

       On May 22, 2014, Investigator Decker interviewed C.J., who was not home during

the search of her residence. C.J. said appellant returned to her apartment in the early

morning hours of May 18 with the stolen items. Appellant told C.J. that “this is how I’m

going to pay you back.” C.J. recalled that the first names on the cards matched the names

of J.A.M. and J.A.M.’s husband. She also said that appellant returned alone and was

wearing a black hooded sweatshirt. C.J. said that appellant broke into a house on the

street where J.A.M. lived to get the items.

       Also on May 22, 2014, appellant made a statement to Sergeant McShane.

Appellant said that he was in Superior, Wisconsin, during the home invasion and the

entire weekend after that. When officers interviewed appellant, they searched him and

found a package containing 0.084 grams of heroin in his front pocket.

       The parties stipulated that appellant was wearing a required GPS ankle monitor

during a period of time that included May 17, 2016. Critically, the ankle-monitor records

indicate that appellant was at J.A.M.’s house at the time of the home invasion and at the

ATM at the time of the unsuccessful attempts to withdraw money from J.A.M.’s account.

       The state charged appellant with two counts of first-degree assault in violation of

Minn. Stat. § 609.221, subd. 1 (2012), two counts of first-degree aggravated robbery in


                                              4
violation of Minn. Stat. § 609.245, subd. 1 (2012), one count of first-degree burglary in

violation of Minn. Stat. § 609.582, subd. 1 (2012), three counts of financial transaction

card fraud in violation of Minn. Stat. § 609.821, subd. 2 (2012), and one count of fifth-

degree possession of a controlled substance in violation of Minn. Stat. § 152. 025, subd. 2

(2012). Appellant moved to admit alternative-perpetrator evidence of an admission by

E.B. that he had kicked in doors to houses and burglarized places, and moved the district

court to give a special jury instruction concerning eyewitness identification. The district

court denied both motions. A jury found appellant guilty of all counts, and the district

court sentenced appellant to four concurrent sentences of 132 months, 129 months, 160

months, and 28 months. This appeal followed.

                                      DECISION

I.     Alternative-Perpetrator Evidence

       Appellant first argues that the district court erred in denying his request to offer

evidence that an alternative perpetrator committed the assault, aggravated-robbery, and

burglary offenses. We review a district court’s decision to exclude alternative-perpetrator

evidence for abuse of discretion. State v. Sailee, 792 N.W.2d 90, 93 (Minn. App. 2010)

review denied (Minn. Mar. 15, 2011). “If we determine that the [district] court erred, the

conviction will still stand if the error was harmless beyond a reasonable doubt.” Id. “The

error is harmless if the jury’s verdict is surely unattributable to the error.” Id. (quotation

omitted).

       A criminal defendant has a due-process right under the United States and

Minnesota Constitutions to be treated fairly and to present a complete defense. State v.


                                              5
Richards, 495 N.W.2d 187, 191 (Minn. 1992) (citing California v. Trombetta, 467 U.S.

479, 485, 104 S. Ct. 2528, 2532 (1984)); see U.S. Const. amend. XIV, § 1; Minn. Const.

art. I, § 7. This includes the right “to present evidence showing that an alternative

perpetrator committed the crime with which the defendant is charged.” Sailee, 792

N.W.2d at 93 (quotation omitted). “Alternative perpetrator evidence is admissible only if

the defendant makes a threshold showing that the evidence the defendant seeks to admit

has an inherent tendency to connect the alternative perpetrator to the commission of the

charged crime.” State v. Ferguson, 804 N.W.2d 586, 591 (Minn. 2011) (quotations

omitted). This connection must be established beyond a “bare suspicion.” State v. Blom,

682 N.W.2d 578, 621 (Minn. 2004). If such a showing is made, the defendant may then

introduce evidence of a motive or other facts that tend to prove a third party committed

the crime. State v. Atkinson, 774 N.W.2d 584, 590 (Minn. 2009).

       On appeal, appellant argues that the district court erred in concluding that the

proffered alternative-perpetrator evidence did not have an inherent tendency to connect

E.B.2 with the assault, aggravated-robbery, and burglary offenses. See Ferguson, 804

N.W.2d at 591. Except for E.B.’s statement to police that E.B. no longer goes around

kicking in doors to houses and burglarizing places, all of appellant’s proffered


2
 In pretrial hearings, appellant also identified C.J. as a possible alternative perpetrator.
The district court concluded that the evidence did not have an inherent tendency to
connect C.J. to the offenses. Appellant does not argue on appeal that this was error.
Therefore, we do not consider whether evidence that C.J. was a possible alternative
perpetrator was properly excluded. See State v. Butcher, 563 N.W.2d 776, 780 (Minn.
App. 1997) (explaining that issues not briefed on appeal are waived), review denied
(Minn. Aug. 5, 1997). We only address appellant’s alternative-perpetrator argument
concerning E.B.

                                             6
alternative-perpetrator evidence was ultimately presented to the jury. In reaching this

conclusion, the district court considered as foundational evidence that only E.B.’s DNA

was found on the white latex gloves found in C.J.’s home, that E.B. was using J.A.M.’s

stolen phone when police searched C.J.’s home, and that E.B. had a piece of J.A.M.’s

cut-up driver’s license in his pocket. The district court’s ruling therefore effectively

excluded E.B.’s statement and prohibited appellant from presenting an alternative-

perpetrator defense in connection with the other proffered alternative-perpetrator

evidence.

       In Ferguson, the Minnesota Supreme Court concluded that “the alternative

perpetrator foundational evidence . . . was sufficient to allow Ferguson to present an

alternative perpetrator defense.” 804 N.W.2d at 592. To satisfy the inherent-tendency

requirement in that case, Ferguson offered the following evidence: (1) that someone told

police that a man by the name of C.J. shot the victim; (2) that the alternative perpetrator’s

initials were C.J.; (3) that the alternative perpetrator was listed as C.J. in the victim’s cell-

phone contacts; (4) that the alternative perpetrator had a tattoo of the letters C.J. on his

arm; (5) that the alternative perpetrator spoke to the victim on the phone three days

before the shooting; (6) that the alternative perpetrator’s physical description was similar

to witnesses’ descriptions of the shooter; (7) that the alternative perpetrator had a car

matching some of the descriptions of the car seen at the crime scene; and (8) that the

alternative perpetrator was arrested for unlawful possession of a firearm approximately

five months before the shooting, but was not in custody at the time of the shooting. Id. at

591.


                                               7
      In reaching its conclusion in Ferguson, the supreme court distinguished Atkinson,

“in which [it] noted that evidence of an alternative perpetrator’s presence at the scene of

the crime is insufficient on its own to create an inherent tendency connecting the

alternative perpetrator to the crime.” Id. at 592 (citing Atkinson, 774 N.W.2d at 590). In

Atkinson, the defendant sought to satisfy the inherent-tendency requirement with

evidence that the alternative perpetrator was at the scene of the crime and had a tattoo

similar to the shooter’s tattoo. 774 N.W.2d at 591. The supreme court considered

Atkinson a “close question,” but ultimately factored in the victim’s identification of the

defendant as the shooter to conclude that, taken together, the defendant’s evidence did

not satisfy the inherent-tendency requirement. Id. at 591-92.

      Here, the facts that E.B. was using J.A.M.’s cell phone and had a piece of her

cut-up driver’s license in his pocket does not have an inherent tendency to connect him to

the commission of the offenses. Testimony established that appellant brought the stolen

items back to C.J.’s home and that multiple people were present in C.J.’s home after the

offenses and handled the stolen property. The facts do not inherently tend to put E.B. in

J.A.M.’s home. See Ferguson, 804 N.W.2d at 592 (relying on evidence indicating

alternative perpetrator was at the scene of the crime to support conclusion that

alternative-perpetrator defense was appropriate); but see Atkinson, 774 N.W.2d at 590-92

(concluding that, without more, evidence that alternative perpetrator was at the location

where the crime took place was insufficient to link alternative perpetrator to the

commission of the crime).




                                            8
       Appellant also argues that E.B.’s DNA on the white latex gloves links him to the

crime. That pair of gloves was the only one that police found at C.J.’s residence,

although C.J. told Investigator Decker that she and her mother kept some “rubber gloves”

in the home for cleaning.       But J.A.M.’s description of the clothing and physical

appearance of the intruder matched that of appellant, including a distinct facial feature—

an upturned eyebrow—that she could see under the nylon stocking on his head. And

J.A.M. also indicated that the intruder was a “short” man, maybe 5’ 4” tall, which is

consistent with appellant’s height. E.B. is 6’ 1” tall. There was only one known intruder

at J.A.M.’s home, and appellant’s GPS monitor recorded that, despite his claims of

having been in Superior, he was at the house at the time of the break-in.

       Taken together, the facts relied on by appellant do not have an inherent tendency

to link E.B. to the commission of the assault, aggravated-robbery, and burglary offenses.

Accordingly, the district court acted within its discretion in denying appellant’s request to

introduce alternative-perpetrator evidence.

       Even if the district court had admitted the alternative-perpetrator evidence, we are

convinced that the jury would not have reached a different verdict. See Sailee, 792

N.W.2d at 93 (“The error is harmless if the jury’s verdict is surely unattributable to the

error.”) (quotation omitted). The jury heard through testimony that E.B.’s DNA was the

only DNA found on the white latex gloves found at C.J.’s home, that E.B. was using

J.A.M.’s cell phone when police searched C.J.’s home, and that E.B. had a piece of

J.A.M’s cut-up driver’s license in his possession. The jury therefore knew most of the

facts that appellant sought to present to support his alternative-perpetrator defense


                                              9
regardless of the district court’s ruling on the admission of E.B.’s statement that E.B. no

longer kicks in doors to complete burglaries.

       Even if there was error, which we conclude there was not, it was harmless because

“an average jury” would have reached the same verdict if it had considered the additional

alternative-perpetrator evidence. See State v. Post, 512 N.W.2d 99, 102 (Minn. 1994)

(noting that an error is harmless beyond a reasonable doubt where, even with “the

damaging potential of the evidence fully realized, an average jury (i.e., a reasonable jury)

would have reached the same verdict”). The other evidence against appellant was strong:

J.A.M.’s description of the appearance and clothing of the intruder which matched

appellant; appellant’s GPS-monitor records placed him at J.A.M.’s home at the time of

the offenses (when he claimed to have been elsewhere); testimony that appellant left and

returned alone the night of the offense; and testimony that appellant told K.M. he had

gotten the stolen items by kicking in a door.

       The district court acted within its discretion in excluding proffered alternative-

perpetrator evidence. And the error, if any there had been, would be harmless.

II.    Jury Instruction

       Appellant also argues that the district court erred in denying his request for a

special jury instruction concerning the reliability of eyewitness identification.          Jury

instructions are entrusted to the district court’s discretion, and a district court’s refusal to

give a requested instruction will not be reversed absent an abuse of discretion. State v.

Cole, 542 N.W.2d 43, 50 (Minn. 1996). The focus of our analysis is on whether the

refusal resulted in error. State v. Kuhnau, 622 N.W.2d 552, 555 (Minn. 2001).


                                              10
       In State v. Lindsey, the Minnesota Supreme Court affirmed the district court’s

denial of a defendant’s request for a one-and-a-half page, single-spaced instruction

concerning eyewitness identification.      632 N.W.2d 652, 661-62 (Minn. 2001).            In

Lindsey, the district court denied the request, and instead, it instructed the jury using the

pattern jury instruction. Id. at 662; see 10 Minnesota Practice, CRIMJIG 3.19 (1990).

The supreme court noted that the district court correctly “equated the proposed

instruction to defense counsel’s closing argument and noted that it could potentially

distract the jury from making findings beyond a reasonable doubt.” Lindsey, 632 N.W.2d

at 662. The supreme court also concluded that the pattern jury instructions “convey[] the

relevant aspects of witness identification to the jury.” Id.

       Here, the district court denied appellant’s requested four-page, single-spaced

instruction concerning the reliability of eyewitness identification. The district court

denied the request after explaining that

              the issues with eyewitness identification . . . are addressed
              through direct and cross-examination. The proposed jury
              instruction is long. It’s five [sic] pages. It’s single-spaced.
              Yes, Counsel has the right and the Court can agree to alter a
              JIG sometimes to tailor it to a specific case, but this isn’t
              altering it, this is completely rewriting it, and I am neither in a
              position to create new case law, nor new criminal procedure,
              nor trial procedure. . . . [T]here’s a lot in here, they talk about
              research, but that’s a lot to put before a jury and it’s not
              appropriate.

As in Lindsey, the district court here instructed the jury using the pattern jury instruction,

which has not changed from the version of which the supreme court approved in Lindsey.




                                              11
Compare 10 Minnesota Practice, CRIMJIG 3.19 (2015), with 632 N.W.2d at 662

(quoting 10 Minnesota Practice, CRIMJIG 3.19 (1990).

       Appellant does not attempt to distinguish Lindsey on appeal, but instead only

argues that “given the advances in social sciences . . . it was an abuse of discretion to

deny the requested jury instruction.” Appellant relies on a Massachusetts case to argue

that “the science underlying the [pattern] jury instruction . . . has advanced to the point

where Minnesota’s pattern jury instruction on witness identification is inadequate.” The

Minnesota Supreme Court, however, has never held that the relevant pattern jury

instruction is inadequate or misstates the law. And there is no other Minnesota authority

for appellant’s proposed instruction. Reversal would require us to change the law, which

exceeds our proper role. See Tereault v. Palmer, 413 N.W.2d 283, 286 (Minn. App.

1987) (explaining that public-policy arguments to modify existing law are within the

purview of the Minnesota Supreme Court or the legislature, and not this court), review

denied (Minn. Dec. 18, 1987).

       The jury instruction given by the district court correctly states Minnesota law. The

district court acted within its discretion.

       Affirmed.




                                              12
