                        This opinion will be unpublished and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
                                   A16-0121

                                  State of Minnesota,
                                     Respondent,

                                          vs.

                             Justin Thomas Keodouangdy,
                                      Appellant.

                              Filed December 27, 2016
                                     Affirmed
                                 Rodenberg, Judge

                             Carver County District Court
                                File No. 10-CR-15-37

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

Mark Metz, Carver County Attorney, Dave Hunt, Assistant County Attorney, Alexander
Vian, Special Assistant County Attorney, Chaska, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Leslie J. Rosenberg, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

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

Kirk, Judge.

                       UNPUBLISHED OPINION

RODENBERG, Judge

      On appeal from his conviction of aiding and abetting burglary in the second degree,

appellant Justin Thomas Keodouangdy challenges the validity of the search warrants
authorizing the search of a cell phone, residence, and SUV. Appellant also argues that he

is entitled to a new trial because the district court plainly erred by failing to instruct the

jury concerning the term “intentionally aiding” and in failing to give an accomplice-

liability instruction. We affirm.

                                          FACTS

        In January 2015, the home of P.M., W.M., and B.K. was burglarized. The morning

of the burglary, appellant contacted P.M. and offered her a ride to the mall. He came to

the house to get P.M. Before they left, he went downstairs and remained there for several

minutes.

        Appellant drove to the mall in a black SUV. P.M. saw appellant with his phone at

the mall and saw him receive a text message. After appellant returned P.M. to her home,

P.M. noticed that items were missing from the home. She believed someone had entered

without permission. Footprints were located in the snow outside the house and led to the

basement door, which was normally kept locked. P.M. exchanged text messages with

appellant asking whether he had seen the missing items and accusing him of letting

someone into the house through the basement door. P.M. later received text messages from

an unknown number asking for money in return for the items that had been stolen from the

home.

        Police investigated the burglary and later broadcast a “stop and hold” for appellant.

An officer located and stopped an SUV that matched the description of the SUV that

appellant had been driving on the day of the burglary. The officer spoke to the driver and,

in doing so, noticed an envelope with appellant’s name on it within the SUV. The driver


                                              2
informed the officer that appellant was at the residence he had just left, and that appellant

had been living there. Police went to the home, took another resident of the home to the

police station, and this person then gave police appellant’s cellular phone.

       A search warrant was obtained authorizing police to search that residence and the

SUV. Items taken during the burglary were found in both the residence and the SUV. A

search warrant was also issued for “all electronic data contained on” appellant’s phone.

The search of the contents of the cell phone revealed a series of text messages sent and

received by appellant before, during, and after the burglary, implicating appellant in the

crime, including texts from appellant to an accomplice describing where to find valuables

in the house. Appellant challenged the issuance of the search warrants without making

specific arguments to the district court. The district court found that the affidavits in

support of the warrants contained sufficient facts and circumstances to establish probable

cause for the issuance of the search warrants. Appellant made no further or more specific

challenge to the warrants.

       A jury returned a guilty verdict on the charge of aiding and abetting burglary in the

second degree. This appeal followed.

                                     DECISION

I.     Warrant authorizing the search of the cell phone

       Appellant argues that the search warrant authorizing the search of his cell phone

violated the particularity clause of the Fourth Amendment to the U.S. Constitution and

article I, section 10 of the Minnesota Constitution. He also challenges the district court’s

probable cause determination concerning that search warrant.


                                             3
       A. Appellant failed to preserve a particularity challenge.

       Generally, appellate courts will only consider issues that were presented and

considered below. In re Stadsvold, 754 N.W.2d 323, 327 (Minn. 2008); Thiele v. Stich,

425 N.W.2d 580, 582-83 (Minn. 1988) (“An appellate court may not base its decision on

matters outside the record on appeal, and may not consider matters not produced and

received in evidence below.”).

       The record before us does not indicate that appellant argued to the district court that

the warrant authorizing the search of his cell phone violated the particularity clause. The

district court did not make findings concerning the particularity of the search warrant. At

the omnibus hearing, appellant’s only argument concerning the search of the cell phone

was “whether the search warrant was proper to obtain the cell phone and to search the cell

phone.” Appellant made no further argument, and the district court’s only conclusion in

response to appellant’s challenge was a finding of probable cause. Appellant made no later

or further request that the district court consider whether the warrant was sufficiently

particular. Because the district court was not asked to make a particularity finding, the

record is inadequate to determine whether the description of the scope of the cell-phone

search contained in the warrant was insufficiently precise or particular. For example, there

is no evidence of how and where on the cell phone’s drive or memory the text messages

are or would generally be stored. Likewise, and although the warrant’s description of the

property and things to be searched was quite general, the record contains neither evidence

nor argument concerning how it might or should have been made more specific. This

hinders our review of whether the warrant was unconstitutionally broad. See Eisenschenk


                                              4
v. Eisenschenk, 668 N.W.2d 235, 243 (Minn. App. 2003) (“A party cannot complain about

a district court’s failure to rule in [the party’s] favor when one of the reasons it did not do

so is because that party failed to provide the district court with the evidence that would

allow the district court to fully address the question.”), review denied (Minn. Nov. 25,

2003). Although the state did not argue that the particularity challenge was forfeited, there

is no basis in the record before us on which we can evaluate the issue. We therefore

conclude that appellant failed to preserve the particularity challenge and the issue is

forfeited.

       We nevertheless address on the merits the constitutionality of the cell-phone search

warrant for both probable cause and particularity. Our merits consideration of the latter

issue is constrained by the record as it exists.

       B. Probable cause supports the cell-phone search.

       Appellant argues that the search warrant authorizing the search of the contents of

his cell phone is not supported by probable cause. He argues that his “mere possession of

a cell phone” as a suspect is “insufficient to establish probable cause to search the

contents.” The state argues that the police would “be interested in knowing” certain

information within appellant’s phone. Police officers are undoubtedly curious about all

sorts of things, including data contained within a suspect’s cell phone. But curiosity is not

a proper basis for the issuance of a search warrant. Rather, the search warrant application

and supporting affidavit must demonstrate that “a fair probability” exists that evidence or

fruits of crime will be found in the place to be searched. State v. Holland, 865 N.W.2d

666, 673 (Minn. 2015) (quotations omitted).


                                               5
       A search warrant is supported by probable cause “if, on the totality of the

circumstances, there is a fair probability that contraband or evidence of a crime will be

found in a particular place.” Holland, 865 N.W.2d at 673 (quotations omitted). We give

great deference to the district court’s determination of probable cause for a search warrant.

State v. Rochefort, 631 N.W.2d 802, 804 (Minn. 2001) “When reviewing a judge’s decision

to issue a search warrant, our only consideration is whether the issuing judge had a

substantial basis for concluding that probable cause existed.” State v. Fawcett, 884 N.W.2d

380, 384 (Minn. 2016) (quotation omitted). Our review is limited to the information within

the warrant application and supporting affidavit. Holland, 865 N.W.2d at 673. The warrant

application and supporting affidavit must include “specific facts to establish a direct

connection between the alleged criminal activity and the site to be searched.” State v.

Souto, 578 N.W.2d 744, 749 (Minn. 1998). In our review, “[w]e must consider the totality

of the circumstances alleged in the supporting affidavit and must be careful not to review

each component of the affidavit in isolation.” Fawcett, 884 N.W.2d at 385 (quotation

omitted).

       We conclude that the affidavit supporting the warrant application contained

sufficient information to establish a connection between the suspected burglary and the

data contained within appellant’s cell phone.         The affidavit describes appellant’s

interactions with P.M. on the day of the burglary, including appellant’s invitation to

transport P.M. from the house to the mall, P.M.’s observation that appellant had been in

the basement of the house where the door by which the burglar(s) obtained entry is located,

and P.M.’s observation that appellant had used his cell phone during the approximate time


                                             6
of the burglary. The affidavit also notes that a search warrant had already been executed

at appellant’s residence, and property stolen from P.M.’s home was recovered. From the

information within the affidavit, there was a fair probability that evidence of appellant’s

involvement in the burglary would be revealed by his text messages. We defer to the

issuing judge’s determination that there was probable cause to think that appellant’s cell

phone would reveal evidence of a crime. The warrant to search the contents of appellant’s

cell phone was supported by probable cause.

       C. The record is insufficient to demonstrate a particularity-clause violation.

       The Fourth Amendment to the U.S. Constitution and article I, section 10 of the

Minnesota Constitution provide that “no Warrants shall issue, but upon probable cause,

supported by Oath or affirmation, and particularly describing the place to be searched, and

the persons or things to be seized.” U.S. Const. amend. IV; Minn. Const. art. I, § 10. The

particularity clause prevents “general or exploratory” searches, State v. Bradford, 618

N.W.2d 782, 795 (Minn. 2000), and “prevents the seizure of one thing under a warrant

describing another,” Marron v. United States, 275 U.S. 192, 196, 48 S. Ct. 74, 76 (1927).

A warrant written with particularity has the effect that, “[a]s to what is to be taken, nothing

is left to the discretion of the officer executing the warrant.” Id. “[A] search conducted

pursuant to a warrant that fails to conform to the particularity requirement . . . is

unconstitutional.” Massachusetts v. Sheppard, 468 U.S. 981, 988 n.5, 104 S. Ct. 3424,

3427 n.5 (1984). “[W]hen determining whether a clause in a search warrant is sufficiently

particular, the circumstances of the case must be considered, as well as the nature of the




                                              7
crime under investigation and whether a more precise description is possible under the

circumstances.” State v. Miller, 666 N.W.2d 703, 713 (Minn. 2003).

       We recently examined a particularity clause challenge in an unpublished opinion in

State v. Bachman, No. A14-0996, 2015 WL 46547 (Minn. App. Jan. 5 2015).1 In Bachman,

a search warrant was issued for the search of “any and all data on [the] hard drive” of a

computer owned by Bachman, for the purpose of finding photos of a house destroyed by a

fire and communications made by a victim of the fire who had used the computer. Id. at

*1. In the ensuing search, child pornography was found. Id. The district court suppressed

the child-pornography evidence. Id. We affirmed on the ground that the search warrant

for “any and all data on [the] hard drive” did not adequately limit the scope of the warrant

to the probable-cause showing contained in the supporting affidavit. Id. at *1, *3.

       This case is unlike Bachman. The warrant in this case was issued to search

appellant’s cell phone for text messages and other communications surrounding the time

of the burglary. Those communications were the focus of the forensic examiner’s search

of the cell phone.    And those electronic communications were precisely what the

examiner’s search ultimately found. Although the search warrant’s description of the

particular “place to be searched” and “things to be seized” was broad, the record before us




1
  “Although not precedential, unpublished opinions may be persuasive.” Sarber v. Comm’r
of Pub. Safety, 819 N.W.2d 465, 469 n.3 (Minn. App. 2012). Because this is an emerging
issue in the area of search-and-seizure law, and because Bachman is a recent opinion of
this court, we consider its persuasive value here.

                                             8
does not disclose how the portions of the cell phone authorized to be searched could have

been more precisely described.2

       The officers in this case acted under what United States Supreme Court precedent

requires for the search of a cell phone; they applied for and received a warrant authorizing

a search of the cell phone. Riley v. California, 134 S. Ct. 2473, 2495 (2014) (“Our answer

to the question of what police must do before searching a cell phone seized incident to an

arrest is accordingly simple—get a warrant.”); see also State v. Barajas, 817 N.W.2d 204,

217 (Minn. App. 2012) (holding that a search warrant is required for a search of a cell

phone), review denied (Minn. Oct. 16, 2012). The legality of a search of all data contained

within a cell phone, without limitation, is an emerging area of the law where clarification

is needed,3 but the record here does not permit meaningful review of the issue because

appellant presented neither evidence nor argument to the district court concerning how the

warrant could have been made more particular. See Miller, 666 N.W.2d at 713 (noting that

part of the test for particularity is whether a more precise description is possible). Appellant

has not demonstrated either that he has been aggrieved by the claimed lack of particularity

of the search warrant, or that he is entitled to appellate relief.




2
  We suppose that the warrant might have been tailored more narrowly so as to only
authorize search of those portions of the phone’s memory that contain text messages. But
here again, the record is silent concerning where on a cell phone’s memory or disc such
things might ordinarlily be found. The record is also silent concerning how the retention
of text-message data is or might be separated from other stored data.
3
  The state argues that, if the warrant violated the particularity clause, a good-faith
exception would apply. We do not reach the state’s alternative argument.

                                                9
II.    Warrant for the search of the SUV and the residence

       Appellant challenges the probable-cause determination supporting the search

warrant issued for the searches of the SUV and the residence where he was living.4

       A search warrant is supported by probable cause if the totality of the circumstances

demonstrate that there is “a fair probability that contraband or evidence of a crime will be

found in a particular place.” Holland, 865 N.W.2d at 673 (quotation omitted). The facts

alleged in the warrant application and affidavit must include “specific facts to establish a

direct connection between the alleged criminal activity and the site to be searched.” Souto,

578 N.W.2d at 749. We defer to the issuing judge’s determination of probable cause for

the search warrant and only consider whether the issuing judge had a substantial basis for

concluding that probable cause existed. Fawcett, 884 N.W.2d at 384; Rochefort, 631

N.W.2d at 804.

       The facts alleged in the affidavit supporting the request for the warrant to search the

SUV and residence indicate that appellant had used the SUV sought to be searched to

transport P.M. from her home to the mall, and then back to the burglarized residence. The

affidavit alleges that P.M. believed appellant had unlocked the basement door or let

someone into the home when he went to the basement, and footprints in the snow near the

door corroborated this belief. Appellant was later seen returning to the residence carrying

a duffle bag. Under the totality of the circumstances, there was a fair probability that


4
  The state asserts that appellant did not have a legitimate expectation of privacy in the
SUV and therefore has no right to challenge the search. Because we conclude that probable
cause supports the issuance of the search warrant for the SUV, we do not address the state’s
legitimate-expectation-of-privacy argument.

                                             10
contraband or evidence of the burglary would be found in the residence and SUV. A direct

connection existed between the facts alleged in the affidavit and the two areas to be

searched listed in the warrant. The issuing judge had a substantial basis to make the

probable-cause decision concerning the search of the SUV and residence, and we do not

disturb that determination. See Rochefort, 631 N.W.2d at 804 (directing that this court

gives great deference to the issuing judge’s finding of probable cause). The warrant

authorizing the searches of the residence and the SUV was supported by probable cause.

III.   Aiding and Abetting Instruction

       Appellant next argues he is entitled to a new trial because the district court plainly

erred by failing to instruct the jury on “intentionally aiding.”

       Appellant did not object to the absence of such an instruction at trial. We therefore

review for plain error. State v. Washington-Davis, 881 N.W.2d 531, 541 (Minn. 2016).

Under the plain-error doctrine, we determine whether the jury instructions: (1) contained

an error, (2) that was plain, and (3) that affected the defendant’s substantial rights. Id. If

all three prongs of the plain-error analysis are satisfied, “we may correct the error only if

it seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Id.

(quotation omitted).

       A person is “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 (2014). To conclude that a person intentionally aided

another in the commission of a crime, the state must prove “(1) that the defendant knew

that his alleged accomplices were going to commit a crime, and (2) that the defendant


                                              11
intended his presence or actions to further the commission of that crime.” State v. Milton,

821 N.W.2d 789, 805 (Minn. 2012) (quotation omitted). Accomplice-liability instructions

must explain that the intentionally-aiding element requires the jury to find beyond a

reasonable doubt that the defendant had foreknowledge that his accomplice was going to

commit a crime, and the defendant intended his actions or presence to aid in the

commission of the crime. State v. Kelley, 855 N.W.2d 269, 274 (Minn. 2014).

       The state concedes that the district court plainly erred in not instructing the jury

concerning “intentionally aiding.” It remains for us to determine whether that plain error

affected appellant’s substantial rights. One claiming that an erroneous instruction affected

substantial rights has the “heavy burden of proving that there is a reasonable likelihood that

giving the instruction in question had a significant effect on the jury verdict.” Id. at 284

(quotation omitted). “An erroneous jury instruction will not ordinarily have a significant

effect on the jury’s verdict if there is considerable evidence of the defendant’s guilt.” Id.

at 283-84.

       Appellant has not met the heavy burden of demonstrating that the omission of the

jury instruction had a significant effect on the verdict in this case. “Intentionally” is a

commonly understood word, and the district court ensured that the jury would consider

whether appellant’s aid was intentional by including the term in the jury instruction

concerning liability for the crimes of another, in the jury instruction for aiding and abetting

burglary, and on the jury verdict form itself. The record contains ample evidence that

appellant knew that his accomplice was going to commit the burglary, and that appellant

intended his actions of removing P.M. from the home to aid in the commission of that


                                              12
crime. Appellant initiated the contact with P.M. that would remove her from the home,

sent text messages describing where the accomplice should look for valuables within the

home and when the accomplice should leave the house, and the stolen items were

eventually recovered from where appellant was living. After our careful review of the

record, we are convinced that an additional instruction on “intentionally aiding” would not

have had a significant effect on the verdict. The district court’s error concerning the jury

instruction did not affect appellant’s substantial rights.

IV.    Accomplice-Liability Instruction

       Finally, appellant argues that the district court committed plain error by failing to

instruct the jury concerning accomplice-liability testimony.

       District courts must instruct juries on accomplice testimony when “it is reasonable

to consider any witness against the defendant to be an accomplice.” State v. Strommen,

648 N.W.2d 681, 689 (Minn. 2002). The duty to give the jury instruction “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).

       Appellant did not request an accomplice-testimony instruction at trial. We therefore

review the omission of the jury instruction for plain error. Washington-Davis, 881 N.W.2d

at 541. An accomplice is a witness who “could have been indicted and convicted for the

crime with which the defendant is charged.” State v. Pendleton, 759 N.W.2d 900, 907

(Minn. 2009) (quotation omitted). No accomplice testified as a witness against appellant

during the trial. The only witnesses who testified at trial were victims of the burglary and


                                              13
law enforcement personnel. Because an accomplice did not testify as a witness, appellant

has not demonstrated error in the omission of an accomplice-liability instruction, much less

plain error.

       To the extent appellant argues that the text messages admitted into evidence

required an accomplice-testimony instruction, this argument is contrary to the purpose of

such an instruction. Accomplice testimony is inherently untrustworthy because of the risk

that the accomplice may testify in the hope of currying favor with law enforcement or to

satisfy self-serving or malignant motives, and therefore a jury instruction is required. State

v. Clark, 755 N.W.2d 241, 253 (Minn. 2008). Without an accomplice providing actual trial

testimony, there is no reason to give an accomplice-liability instruction. Appellant was not

entitled to an accomplice-testimony instruction.

       Affirmed.




                                             14
