                        This opinion will be unpublished and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
                                   A13-0676

                                 State of Minnesota,
                                    Respondent,

                                         vs.

                                William Harold Jones,
                                      Appellant.

                                 Filed July 28, 2014
                                      Affirmed
                                  Connolly, Judge

                            Dakota County District Court
                            File No. 19HA-CR-11-3398


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

James C. Backstrom, Dakota County Attorney, Stacy St. George, Assistant County
Attorney, Hastings, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Bridget K. Sabo, Assistant
Public Defender, St. Paul, Minnesota (for appellant)


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

Willis, Judge.




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                         UNPUBLISHED OPINION

CONNOLLY, Judge

       Appellant appeals his conviction of aiding and abetting second-degree burglary,

arguing that (1) the circumstantial evidence was insufficient to convict him and (2) the

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

liability. We affirm.

                                         FACTS

       Appellant William Jones met I.C. in 2010. He would occasionally pick her up at a

residence in South St. Paul. The owner of the residence, J.B., allowed I.C. to stay at his

home periodically but would not let her be in the house alone. On September 26, 2011,

J.B. made sure I.C. left his residence before he left for work. He locked the doors before

he left while I.C. was outside.

       Also on September 26, two St. Paul police officers were conducting surveillance

on appellant. They saw appellant pull into a gas station and I.C. enter appellant’s vehicle.

Appellant and I.C. left the gas station and proceeded to an alley behind J.B.’s house.

Appellant exited the vehicle and, according to one officer, appeared to be acting as a

lookout for I.C. I.C. walked between two houses and then walked back to appellant.

Appellant and I.C. walked to the side of J.B.’s house. An officer saw appellant at the side

of the house standing with his hands in the air under a window. He simultaneously

observed feet extending out of the window before they disappeared into the house.

Immediately thereafter, appellant drove to the front of the house. The officer observed

I.C. leave the residence through the front door with a television and a computer monitor,


                                             2
which she loaded into appellant’s vehicle. Appellant and I.C. left the scene and were

subsequently stopped by law enforcement.

       Based on these events, the state charged appellant with aiding and abetting

second-degree burglary in violation of Minn. Stat. §§ 609.582, subd. 2(a)(1) (2011);

609.05, subd. 1 (2010). Appellant testified at trial and stated that he did not pick up I.C.

at the gas station, but instead, met her at J.B.’s house. He testified that he did not exit his

vehicle and that he waited out front while I.C. brought the television and computer

monitor to his car. The jury found appellant guilty, and the district court sentenced him

as a career offender to 120 months in prison.

                                      DECISION

                                              I.

       Appellant argues that “the circumstantial evidence was insufficient as a matter of

law to prove that [appellant] intentionally aided, or even knew about, [I.C.’s] burglary of

[J.B.’s] residence.” We disagree.

       When reviewing a sufficiency-of-the-evidence claim, we determine whether the

evidence, viewed in the light most favorable to the conviction, is sufficient to allow the

jury to reach a guilty verdict. State v. Hurd, 819 N.W.2d 591, 598 (Minn. 2012). We

presume that the fact-finder believed the state’s witnesses and disbelieved any contrary

evidence and defer to the fact-finder’s credibility determinations. State v. Buckingham,

772 N.W.2d 64, 71 (Minn. 2009).

       A person may be guilty of aiding and abetting the crimes of a principal if he or she

“intentionally aids, advises, hires, counsels, or conspires with or otherwise procures the


                                              3
other to commit the crime.” Minn. Stat. § 609.05, subd. 1. The state must prove that the

defendant “had knowledge of the crime and intended his presence or actions to further the

commission of that crime.” State v. Hawes, 801 N.W.2d 659, 668 (Minn. 2011). The

jury may infer the necessary intent from the circumstances of the crime, including the

“defendant’s presence at the scene of the crime, defendant’s close association with the

principal before and after the crime, [and] defendant’s lack of objection or surprise under

the circumstances.” State v. Swanson, 707 N.W.2d 645, 659 (Minn. 2006). The aiding-

and-abetting statute requires more than inaction and “passive approval” to impose

liability. Hawes, 801 N.W.2d at 673 (quotation omitted). But “active participation in the

overt act which constitutes the substantive offense is not required.” State v. Ostrem, 535

N.W.2d 916, 924 (Minn. 1995).

       The sufficiency of circumstantial evidence should be closely scrutinized on review

in a two-step process. State v. Hanson, 800 N.W.2d 618, 622 (Minn. 2011). The first

step is to identify the circumstances proved, deferring to the jury’s acceptance of proof of

those circumstances, based on recognition that the jury “is in the best position to weigh

the credibility of the evidence and thus determine which witnesses to believe and how

much weight to give their testimony.” Id. Next, this court “examine[s] independently the

reasonableness of all inferences that might be drawn from the circumstances proved,”

including those consistent with a hypothesis other than guilt. State v. Andersen, 784

N.W.2d 320, 329 (Minn. 2010) (quotation omitted). If any of the circumstances proved

is inconsistent with guilt, a reasonable doubt as to guilt arises. State v. Al-Naseer, 788




                                             4
N.W.2d 469, 474 (Minn. 2010). But a conviction based on circumstantial evidence will

not be overturned based merely on conjecture. Andersen, 784 N.W.2d at 330.

       Viewed in the light most favorable to the verdict, the state proved the following

circumstances at trial. Appellant and I.C. have known each other for several years and

appellant would occasionally pick up I.C. from J.B.’s residence. I.C. did not have a key

to J.B.’s residence and was not an invited guest or resident when J.B. was not home. On

the day of the burglary, officers were conducting surveillance on appellant and observed

him pick up I.C. at a gas station and drive to J.B.’s residence. Appellant drove into the

alley behind the house, where an officer saw him acting as a lookout. The officer also

observed appellant and I.C. at the side of the residence underneath a window. There, he

observed appellant with his hands in the air, as if he had helped or boosted I.C. through

the window, and saw feet dangling out of the window. Officers discovered that this

window had been broken, and J.B. testified that it was not broken when he left for work.

Appellant pulled his car to the front of the house and waited outside while I.C. retrieved

the computer monitor and television. I.C. loaded the television and computer monitor

into appellant’s car.

       We now turn to the second step. “The second step is to determine whether the

circumstances proved are consistent with guilt and inconsistent with any rational

hypothesis except that of guilt.” State v. Silvernail, 831 N.W.2d 594, 599 (Minn. 2013)

(quotation omitted). “The [s]tate does not have the burden of removing all doubt, but of

removing all reasonable doubt.” Al-Naseer, 788 N.W.2d at 473. While independently




                                            5
examining the reasonableness of the possible inferences, we “give no deference to the

fact finder’s choice between reasonable inferences.” Id. at 473-74.

       Appellant argues that these circumstances reasonably support the hypothesis that

appellant thought that I.C. was entering her own residence and removing her own

property. We disagree. Appellant met I.C. at a gas station rather than at the house from

which she wished to remove “her property.” I.C. did not have a key to the residence and

did not contact or wait for J.B. to return to gain access. Instead, appellant lifted I.C. to

the window, which she broke to enter the house.

       While it is not a crime to break into one’s own home, appellant did not assert this

theory at trial. He testified that he drove to J.B.’s house and waited in the car while I.C.

emerged from the house with the television and the computer monitor. In contrast, an

officer testified that he witnessed appellant acting as a lookout before meeting I.C. at the

side of J.B.’s house to lift her to the window that she broke to gain entry. Thereafter,

appellant drove to the front of the house, where he waited while I.C. removed the

television and the computer monitor from the residence and loaded them into appellant’s

vehicle.

       There is no evidence to suggest that appellant objected to I.C. breaking the

window to gain entry into the home. Although appellant claims that I.C. told him she

was moving out of J.B.’s residence, she did not remove any other property such as

clothing, toiletries, or other household items that would be consistent with moving out;

she only brought out two valuable items. These circumstances support the inference that

appellant knew that I.C. was going to commit a crime and intended his actions to further


                                             6
the commission of that crime and no other rational inference. We conclude that the

evidence was sufficient for the jury to convict appellant of aiding and abetting second-

degree burglary.

                                              II.

       Appellant next argues that the district court committed plain error when it failed to

instruct the jury that appellant had to know of I.C.’s intention to commit the crime and

intend to assist her to be guilty of aiding and abetting second-degree burglary. While we

agree that the district court plainly erred in instructing the jury, we conclude that this

error did not substantially affect the verdict.

       Appellant did not object to the jury instructions at trial. We therefore review for

plain error. State v. Vance, 734 N.W.2d 650, 655 (Minn. 2007), overruled on other

grounds by State v. Fleck, 810 N.W.2d 303 (Minn. 2012). “Under this standard, we may

review an unobjected-to error only if there is (1) error; (2) that is plain; and (3) that

affects substantial rights.” Id. at 655-56. If these prongs are met, “we then decide

whether we must address the error to ensure fairness and the integrity of the judicial

proceedings.” State v. Milton, 821 N.W.2d 789, 805 (Minn. 2012) (quotation omitted).

       The district court has “considerable latitude” in selecting jury instructions. State v.

Mahkuk, 736 N.W.2d 675, 681 (Minn. 2007). “[W]e review the jury instructions in their

entirety to determine whether the instructions fairly and adequately explain the law of the

case.” Milton, 821 N.W.2d at 805 (quotation omitted). “An instruction is error if it

materially misstates the law.” State v. Moore, 699 N.W.2d 733, 736 (Minn. 2005). “To

show that the error affected substantial rights, the defendant bears the heavy burden of


                                                  7
showing that the error was prejudicial—that is, the defendant must show that there is a

reasonable likelihood that the error substantially affected the verdict.” State v. Burg, 648

N.W.2d 673, 677 (Minn. 2002) (quotation omitted).

       Appellant argues that the district court gave an erroneous jury instruction because

the instruction omitted two necessary elements: “(1) [appellant] knew of [I.C.’s] intention

to commit a crime, and (2) [appellant] intended his presence or actions to further its

commission.” We agree.

       The Minnesota Supreme Court decided Milton six days before the commencement

of appellant’s trial and ten days before the jury reached its verdict. 821 N.W.2d at 789.

Milton was convicted of first-degree felony murder and attempted first-degree felony

murder. Id. at 794-95. The district court instructed the jury that if “defendant or a person

whom the defendant intentionally aided caused the death of [the victim],” then the jury

could find Milton guilty. Id. at 806. The supreme court held that a jury instruction on

accomplice liability must specifically explain the element of “intentionally aiding”. Id. at

807-08. The court stated, “to find a defendant guilty as an accomplice, the jury must find

beyond a reasonable doubt that the defendant knew his alleged accomplice was going to

commit a crime and the defendant intended his presence or actions to further the

commission of that crime.” Id. at 808. “Accordingly, if the district court’s instructions

allowed the jury to find [the defendant] guilty as an accomplice without first finding that

[the defendant] knowingly and intentionally assisted in the commission of a crime, the

court erred.” Id. at 805-06.

       Here, the district court provided the jury with the following instruction:


                                             8
                      The 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, conspired with, or otherwise procured the
              person to commit it.
                      The defendant is also guilty of any other crime the
              person commits, while trying to commit the intended crime, if
              the other crime is reasonably foreseeable to the defendant, as
              a possible consequence of trying to commit the intended
              crime.
                      ....
                      Now, as to the definition of intent. “Intentionally”
              means that the actor 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 addition, the actor must have knowledge of those
              facts that are necessary to make the actor’s conduct criminal,
              and that are set forth, after the word “intentionally.”

We conclude that the district court’s instruction does not comport with Milton.

       But appellant cannot meet his heavy burden of showing that the error substantially

affected the verdict. Burg, 648 N.W.2d at 677. As discussed above, the evidence at trial

shows that the state proved beyond a reasonable doubt that appellant knew that I.C.

planned to burglarize J.B.’s residence. And appellant’s actions of driving I.C. to the

house, acting as a “lookout,” lifting I.C. to break into J.B.’s house, and waiting in his

vehicle while I.C. took the computer monitor and television from the home and loaded

them into his vehicle conclusively shows that he actively participated in committing the

burglary.

       Appellant contends that he was “merely present” at the scene and did not intend

his presence to further the commission of a crime. He testified at trial that he thought he

was helping I.C. move her own belongings from a house that she had lawful access to.



                                             9
The jury rejected appellant’s theory of the case. See State v. Johnson, 568 N.W.2d 426,

436 (Minn. 1997) (“[A] jury, as the sole judge of credibility, is free to accept part and

reject part of a witness’ testimony.” (quotation omitted)). Appellant has not shown that

the result would have been different if the district court had properly explained the

“intentionally aiding” element. See Milton, 821 N.W.2d at 809 (“[E]ven if the jury had

been properly instructed, we conclude the jury would have found that Milton

intentionally aided his alleged accomplices based on the evidence presented at trial.”).

Consequently, we conclude that although the district court plainly erred in instructing the

jury, this error did not substantially affect the verdict.

       Affirmed.




                                               10
