                                   STATE OF MINNESOTA

                                    IN SUPREME COURT

                                        A12-0993


Court of Appeals                                                               Dietzen, J.
                                                                      Concurring, Stras, J.

State of Minnesota,

                      Respondent,

vs.                                                               Filed: October 22, 2014
                                                                Office of Appellate Courts
Dylan Micheal Kelley,

                      Appellant.

                              ________________________

Lori Swanson, Attorney General, James B. Early, Assistant Attorney General, Saint Paul,
Minnesota; and

Philip K. Miller, Benton County Attorney, Foley, Minnesota, for respondent.

Bradford Colbert, Legal Assistance to Minnesota Prisoners, Saint Paul, Minnesota, for
appellant.
                            ________________________

                                       SYLLABUS

      1.     Under the plain-error doctrine, the law in existence at the time of appellate

review, not the law in existence at the time of the district court’s error, is applied to

determine whether an error is plain.

      2.     The instruction given to the jury by the district court on accomplice liability

was plainly erroneous at the time of appellate review.


                                            1
       3.      The plainly erroneous jury instruction did not affect appellant’s substantial

rights; therefore, appellant is not entitled to a new trial.

       Affirmed as modified.

                                         OPINION

DIETZEN, Justice.

       Appellant Dylan Micheal Kelley was found guilty by a Benton County jury and

convicted as an accomplice to first-degree aggravated robbery and third-degree assault.1

Kelley appealed his first-degree aggravated robbery conviction to the court of appeals,

requesting a new trial based on an unobjected-to jury instruction on accomplice liability.

He claimed the court of appeals could grant the requested relief under Minn. R. Crim. P.

31.02 because the jury instruction plainly violated the newly announced rule in State v.

Milton, 821 N.W.2d 789 (Minn. 2012).2               The court of appeals affirmed Kelley’s

conviction, concluding the accomplice liability instruction given was error, but that he

was not entitled to relief under Rule 31.02 because the law was unsettled at the time of

the error and did not become settled in favor of Kelley until the time of appeal. We

conclude Rule 31.02 is not limited to errors that were plain at the time of trial. Instead, it


1
       Kelley is challenging only his first-degree aggravated robbery conviction.
2
        Kelley did object at trial to the court giving the accomplice liability jury
instruction, but not on the ground that the instruction failed to explain the “intentionally
aiding” element of accomplice liability. Kelley therefore concedes that the plain-error
rule, rather than the harmless-error rule, is appropriate. See Minn. R. Crim. P. 26.03,
subd. 19(4)(b) (stating that a party’s objection to jury instructions “must state specific
grounds”).



                                                2
includes errors that are based on law, which although unsettled at the time of the error,

was settled in favor of the defendant at the time of appellate review.3 Nevertheless,

because the error alleged in this case did not affect Kelley’s substantial rights, we affirm

as modified.

       The victim, S.A., told police at a St. Cloud hospital that he was assaulted and

robbed by two men in the early morning hours of January 4, 2011.                The police

investigated the case, and S.A. identified Kelley as one of his attackers. Kelley was

arrested and charged with first-degree aggravated robbery in violation of Minn. Stat.

§ 609.245, subd. 1 (2012), and third-degree assault in violation of Minn. Stat. § 609.223,

subd. 1 (2012).

       At trial, the State presented evidence that on January 3, 2011, S.A. went to the

apartment of his friend, B.G., in St. Cloud. When S.A. arrived, B.G. was having a party

and there were approximately twenty people at the apartment. At some point, S.A. told

B.G. he was interested in getting some marijuana and was directed toward Dylan Kelley.

S.A. approached Kelley, and Kelley told him he could buy some marijuana from a friend.

S.A. drove Kelley to the friend’s house, and Kelley purchased the marijuana and gave it

to S.A. S.A. complained that it was an inadequate amount of marijuana, and Kelley

responded that his friend would bring the rest to B.G.’s apartment.




3
       Minnesota Rule of Criminal Procedure 31.02 applies to review by appeal and
posttrial motion. Our subsequent use of the phrase “time of appellate review” in this
opinion simply reflects the fact that this case is before us on direct appeal.

                                             3
       Kelley’s friend arrived at B.G.’s apartment later that evening, and told S.A. that

Kelley wanted to see him outside. S.A. agreed and approached Kelley, who was leaning

into the window of a parked car. Kelley quickly turned around and hit S.A. in the face.

Kelley’s friend held S.A. from behind and Kelley repeatedly hit S.A. in the face. When

S.A. fell to the ground, they both kicked him. After they kicked S.A. in the face and

fractured five of his teeth, S.A. lost consciousness. Kelley and his friend stole S.A.’s

cigarettes, lighter, cell phone, and car keys. Subsequently, S.A. regained consciousness

and returned to the apartment and told those present what happened.                S.A. later

discovered that his wallet, which contained about $240, was missing from his car. S.A.

was taken to the hospital that morning for treatment.

       At the close of the evidence the State requested that the district court instruct the

jury on accomplice liability. Kelley argued that the accomplice liability instruction

should not be given because he was charged as a principal and was not charged with

aiding and abetting. Kelley further argued that the State had not offered any evidence

regarding who committed the crime or who Kelley aided and abetted. The district court

overruled Kelley’s objection and the standard accomplice liability jury instruction was

given to the jury.

       The jury found Kelley guilty of both offenses. Subsequently, the district court

entered judgment of conviction for first-degree aggravated robbery and third-degree

assault and sentenced him to the presumptive sentence of 58 months.

       The court of appeals affirmed, even though it concluded that the accomplice

liability instruction given to the jury was legally erroneous because it failed to explain the

                                              4
“intentionally aiding” element of accomplice liability as required by State v. Milton, 821

N.W.2d 789, 806 (Minn. 2012), which was decided after Kelley’s conviction but before

he filed his appellate brief. State v. Kelley, 832 N.W.2d 447, 451-52 (Minn. App. 2013).

But the court further concluded the error was not plain because at the time of the trial, the

obligation of the district court to explain the “intentionally aiding” element of accomplice

liability was unsettled and did not become settled in favor of Kelley until the time of

appeal. Id. at 456-57.

                                             I.

       Kelley argues that the accomplice liability instruction given to the jury for the

offense of first-degree aggravated robbery failed to accurately state the law. Kelley

acknowledges that he did not object to the instruction on this specific basis, and therefore

we review the instruction for plain error.

       The three requirements that an appellant must satisfy under the plain-error

doctrine were first articulated in United States v. Olano, 507 U.S. 725, 732 (1993), and

later clarified in Johnson v. United States, 520 U.S. 461, 466-67 (1997). We adopted

those requirements in State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998). Under the

plain-error doctrine, the appellant must show that there was (1) an error; (2) that is plain;

and (3) the error must affect substantial rights. Griller, 583 N.W.2d at 740 (citing

Johnson, 520 U.S. at 467). If the appellant satisfies the first three prongs of the plain-

error doctrine, “we may correct the error only if it ‘seriously affect[s] the fairness,

integrity, or public reputation of judicial proceedings.’ ” State v. Crowsbreast, 629



                                             5
N.W.2d 433, 437 (Minn. 2001) (quoting Johnson, 520 U.S. at 467); accord Griller, 583

N.W.2d at 740. We consider each prong of the plain-error doctrine in turn.

       Under the plain-error doctrine, an “error” is a “[d]eviation from a legal rule []

unless the rule has been waived.”4 Olano, 507 U.S. at 732-33. In the context of jury

instructions, a district court has broad discretion. State v. Anderson, 789 N.W.2d 227,

239 (Minn. 2010). But a district court abuses that discretion if its jury instructions

confuse, mislead, or materially misstate the law. State v. Vang, 774 N.W.2d 566, 581

(Minn. 2009); State v. Moore, 699 N.W.2d 733, 736 (Minn. 2005). We review the jury

instructions as a whole to determine whether the instructions accurately state the law in a

manner that can be understood by the jury. State v. Scruggs, 822 N.W.2d 631, 642

(Minn. 2012).

       Accomplice liability is defined by statute in Minn. Stat. § 609.05 (2012). The

statute provides:

              Subdivision 1. Aiding, abetting; liability. A person is criminally
       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.

              Subd. 2. Expansive liability. A person liable under subdivision 1 is
       also liable for any other crime committed in pursuance of the intended
       crime if reasonably foreseeable by the person as a probable consequence of
       committing or attempting to commit the crime intended.

4
       In discussing the first prong of the plain-error rule, the United States Supreme
Court has drawn an important distinction between forfeiture and waiver, explaining that
“forfeiture” is “the failure to make a timely assertion of a right” whereas “waiver” is the
“intentional relinquishment or abandonment of a known right.” Olano, 507 U.S. at 733
(internal quotation marks omitted).



                                             6
Id. The statute does not define the phrase “intentionally aids.” The district court gave the

standard accomplice liability jury instruction.5

       In State v. Milton, the defendant argued for the first time on appeal that an

instruction on accomplice liability was legally erroneous because the district court did not

require the jury to find that he knowingly and intentionally aided another to commit the

aggravated robbery. 821 N.W.2d 789, 805 (Minn. 2012). We explained that the law

regarding such a requirement was unsettled because our previous discussions of

“intentionally aiding” had been in the context of sufficiency-of-the-evidence claims, not

the adequacy of jury instructions. Id. at 807. We concluded that an accomplice liability

5
       The standard accomplice liability jury instruction states:

              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 other person to commit it.

              If the defendant intentionally aided another person in committing a
       crime, or intentionally advised, hired, counseled, conspired with, or
       otherwise procured the other person to commit it, the defendant is also
       guilty of any other crime the other person commits while trying to commit
       the intended crime, if that other crime was reasonably foreseeable to the
       defendant as a probable consequence of trying to commit the intended
       crime.

              The 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, conspiring, or otherwise procuring the
       commission of a crime, unless some crime, including an attempt, is actually
       committed.

10 Minn. Dist. Judges Ass’n, Minnesota Practice—Jury Instruction Guides, Criminal,
CRIMJIG 4.01 (5th ed. 2006).

                                              7
instruction must explain that the intentionally aiding element requires that the jury 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. We nevertheless affirmed Milton’s conviction,

explaining that he failed to establish an error that was plain. Id. at 807.

       The instruction on accomplice liability in this case failed to explain the

intentionally aiding element as required by Milton, and therefore was error. Indeed, the

State concedes that Kelley has satisfied the first prong of the plain-error doctrine.

                                              II.

       The crux of the dispute is whether the plainness of the error is examined at the

time of the district court’s error or at the time of appellate review. Kelley argues that

plain error is determined at the time of appellate review and the State counters that plain

error is determined at the time of the district court’s error. For the reasons that follow,

we conclude that plain error is determined at the time of appellate review.

                                              A.

       In State v. Baird, we considered whether a defendant could satisfy the second

prong of the plain-error doctrine by establishing the error was plain at the time of the

appeal where the law was unsettled at trial but settled in favor of a defendant during the

pendency of the appeal.       654 N.W.2d 105, 113 (Minn. 2002).               Specifically, we

considered whether the district court’s unobjected-to jury instruction that Baird had a

duty to retreat from his home before using self-defense against a co-resident constituted

an error that was plain for the purposes of the plain-error doctrine. Id. We acknowledged

                                              8
that at the time of Baird’s trial, the law regarding the duty to retreat was unsettled. Id. at

109 n.2. While Baird’s appeal was pending before the court of appeals, the law became

settled in Baird’s favor due to our decision in State v. Glowacki, 630 N.W.2d 392, 402

(Minn. 2001), which held that there is no duty to retreat from one’s own home before

using self-defense against a co-resident. Baird, 654 N.W.2d at 112.

       We concluded in Baird that plain error is determined at the time of appellate

review when the law was unsettled at the time of the error but settled in favor of the

defendant during the pendency of the appeal. Id. at 113. We quoted directly from Griller

stating that “ ‘[t]o satisfy the second prong [of the plain-error doctrine] it is sufficient that

the error is plain at the time of the appeal.’ ” Id. (quoting Griller, 583 N.W.2d at 741).

We applied the plain-at-the-time-of-appeal rule announced in Griller, and held that

“[b]ecause Glowacki’s holding . . . rendere[d] the duty-to-retreat instruction given in

error at Baird’s trial clear and obvious, the error [was] plain.” Id.

       Our reliance in Baird on the plain-at-the-time-of-appeal rule announced in Griller

was well-founded and reasonable.6 Because we reversed the conviction based on plain

error, our discussion of each prong of the plain-error doctrine was essential to our


6
        Admittedly, the issue in Griller was not whether a defendant could establish that
the error was plain at the time of the appeal where the law was unsettled at trial but
settled in favor of a defendant during the pendency of the appeal. Instead, the issue in
Griller was whether the defendant could satisfy the plainness requirement where the
district court’s jury instruction appeared to be a correct statement of the law at the time of
trial but became an incorrect statement of the law during the pendency of appeal due to
our intervening decision in State v. Pendleton, 567 N.W.2d 265 (Minn. 1997). Griller,
583 N.W.2d at 741.



                                               9
decision, and therefore not dicta. See Carlton v. State, 816 N.W.2d 590, 614 (Minn.

2012) (explaining the statement in question was “dicta” because the resolution of the

question was not necessary to our ultimate holding).

       Our analysis in Griller relied upon Johnson, 520 U.S. 461, to explain plain error.

We explained that

       [i]n Johnson, the [United States Supreme] Court considered whether the
       error was plain when at the time of trial the district court correctly stated
       the law, but later that same law became incorrect based on a case decided
       during the appeal. The Court concluded that to satisfy the second prong it
       is sufficient that the error is plain at the time of the appeal.

Griller, 583 N.W.2d at 741. We applied the Johnson analysis in Griller, concluding that

“[u]nder Pendleton, which was released after Griller’s conviction and while his case was

on appeal, the defense-of-dwelling instruction given is now in error, and thus the error is

plain.” Id. In other words, the court in Griller concluded that the plain-at-the-time-of-

appeal rule applies when a district court correctly states the law at the time of trial, but

later that same law becomes incorrect based on a case decided during appeal.

       The United States Supreme Court in Henderson v. United States, __ U.S. __, 133

S. Ct. 1121 (2013) recently reaffirmed the plain-at-the-time-of-appeal rule.             In

Henderson, the defendant appealed his sentence on the ground that the district court

plainly erred in sentencing him to a prison term of 60 months, which was an upward

durational departure, so that Henderson could participate in a prison drug rehabilitation

program. Id. at __, 133 S. Ct. at 1125. At the time of the sentence, the circuits were split

on whether the sentence was proper, and the circuit in which defendant was sentenced

(the Fifth Circuit), had not ruled on the issue. Id. at __, 133 S. Ct. at 1125. While the

                                            10
Henderson case was on appeal, the Supreme Court decided Tapia v. United States, 564

U.S. __, 131 S. Ct. 2382 (2011), concluding that a court errs when it imposes or

lengthens a prison sentence solely for rehabilitative purposes. Henderson, __ U.S. at __,

133 S. Ct. at 1125.

       In a 6-3 decision, the Henderson Court extended Johnson, concluding that

regardless of whether the legal question was settled or unsettled at the time of trial, the

second prong of the plain-error doctrine is satisfied if the error is plain at the time of

appellate review. Id. at __, 133 S. Ct. at 1130-31. The Court reasoned that assessing the

error at the time of appellate review advances the general rule “that an appellate court

must apply the law in effect at the time it renders its decision.”7 Id. at __, 133 S. Ct. at

1126 (citing Thorpe v. Hous. Auth. of Durham, 393 U.S. 268, 281 (1969)). Moreover, the

plain-at-the-time-of-appeal approach is consistent with the purpose of the plain-error

doctrine, to provide a fairness-based exception to the forfeiture doctrine. Id. at __, 133


7
        We agree that the plain-at-the-time-of-appeal approach furthers the basic principle
that “an appellate court must apply the law in effect at the time it renders its decision.”
Henderson, __ U.S. at __, 133 S. Ct. at 1129; see also Interstate Power Co., Inc. v.
Nobles Cnty. Bd. of Comm’rs, 617 N.W.2d 566, 575 (Minn. 2000) (“The general rule is
that appellate courts apply the law as it exists at the time they rule on a case, even if the
law has changed since a lower court ruled on the case.”). The plain-at-the-time-of-appeal
approach is a bright-line temporal rule that is straightforward in its application. In
contrast, as the Court in Henderson explained, the plain-at-the-time-of-trial approach is
more cumbersome and complex and requires the court to “play a kind of temporal ping-
pong.” Id. at __, 133 S. Ct. at 1128. Specifically, to determine “error” under the first
prong, we would examine the law in effect at the time of appellate review, but to
determine whether the error was “plain” under the second prong, we would examine the
law in effect at the time of the error. Further, we would examine the circumstances in
existence at the time of appellate review to determine whether the defendant has satisfied
the third and fourth prongs of the plain-error doctrine.

                                             11
S. Ct. at 1127-28. Additionally, to distinguish and treat more harshly cases where the law

was unsettled at trial but then settled in favor of a defendant during the pendency of the

appeal (the Henderson-scenario), versus cases where the law was settled against the

defendant at trial but then changed in the defendant’s favor during the pendency of the

appeal (the Johnson-scenario), “would simply promote arguments about whether the law

of the circuit was unclear.” Id. at __, 133 S. Ct. at 1128. Thus, the Court in Henderson

determined that regardless of whether an error is made under settled or unsettled law, as

long as the error is “plain” at the time of appellate review, it is “plain” for purposes of the

plain-error doctrine. Id. at __, 133 S. Ct. at 1130-31.

       In sum, we have previously determined that plain error is determined as of the

time of appellate review in three circumstances. The first circumstance is when the

settled law is the same at the time of trial and appellate review. State v. Dobbins, 725

N.W.2d 492, 513 (Minn. 2006); see Olano, 507 U.S. at 730-34. The second is when the

law is settled at the time of trial and the settled law has been reversed as of the time of

appellate review. Griller, 583 N.W.2d at 741; see Johnson, 520 U.S. at 464-67. The

third is when the law is unsettled at the time of the district court’s error and the law has

become settled in the defendant’s favor at the time of appellate review. Baird, 654

N.W.2d at 113; see Henderson, ___ U.S. at ___, 133 S. Ct. at 1128-31.

       We conclude that for purposes of applying the plain-error doctrine the court

examines the law in existence at the time of appellate review, not the law in existence at

the time of the district court’s error, to determine whether an error is plain.           Our

conclusion is supported by our decision in Baird and the U.S. Supreme Court’s decision

                                              12
in Henderson. Additionally, our conclusion simplifies the law by adopting a unified

standard for the scenarios discussed in Olano, Johnson, and Henderson.

       We next review whether the jury instruction given in this case was plainly

erroneous. Kelley was convicted 8 months before we decided Milton, and therefore the

district court’s failure to comply with the Milton rule was not plain at the time of Kelley’s

conviction. Nevertheless, Kelley filed his brief in the court of appeals after Milton was

decided, and therefore the district court’s failure to comply with the Milton rule was plain

at the time of appellate review. Because the failure to comply with the Milton rule was

plain at the time of appellate review, Kelley has satisfied the second prong of the plain-

error doctrine.

                                             B.

       The concurrence contends we should adopt a plain-at-the-time-of-trial rule on the

grounds that it is most consistent with the purpose of the plain-error doctrine, that

Rairdon v. State, 557 N.W.2d 318 (Minn. 1996), supports a conclusion that “we have

never actually decided which rule—plain-at-the-time-of-trial or plain-at-the-time-of-

appeal—controls under Rule 31.02,” and that Milton and Kelley are similarly situated,

and therefore giving Kelley the benefit of the Milton rule would be unfair. For the

reasons that follow, we conclude that the arguments asserted by the concurrence lack

merit. We will discuss each argument in turn.

       The concurrence first alleges that the plain-at-the-time-of-trial rule is most

consistent with the purpose of the plain-error doctrine, which the concurrence claims

“provides an incentive for criminal defendants to object at trial by limiting the review of

                                             13
unpreserved errors on appeal and making relief discretionary,” “raises the bar for relief

based on unpreserved errors,” and “discourages the strategic withholding of objections in

order to gain the proverbial ‘second bite at the apple’ on appeal.” Infra at C-3, C-4. The

concurrence’s argument rests upon the mistaken premise that the plain-error doctrine

serves the same purpose as the common-law forfeiture doctrine. The argument lacks

merit.

         The doctrines of forfeiture and plain error have different purposes and are guided

by different principles. Under the forfeiture doctrine, “ ‘a constitutional right,’ or a right

of any other sort, ‘may be forfeited in criminal as well as civil cases by the failure to

make timely assertion of the right before a tribunal having jurisdiction to determine it.’ ”

Olano, 507 U.S. at 731 (quoting Yakus v. United States, 321 U.S. 414, 444 (1944)); see

also State v. Williams, 794 N.W.2d 867, 874 (Minn. 2011) (explaining that “[w]e

ordinarily do not consider issues raised for the first time on appeal, even when those

issues are constitutional questions of criminal procedure or are challenges to the

constitutionality of a statute”); State v. Goodloe, 718 N.W.2d 413, 422 n.6 (Minn. 2006)

(explaining that the term “forfeiture” most accurately described the effect of failing to

bring an alleged error to the attention of the district court). The forfeiture doctrine

reflects the “need to encourage all trial participants to seek a fair and accurate trial the

first time around.” United States v. Young, 470 U.S. 1, 15 (1985) (citation omitted)

(internal quotation marks omitted); accord State v. Ramey, 721 N.W.2d 294, 299 (Minn.

2006). Put differently, the forfeiture doctrine encourages defendants to object while in

the district court so that any errors can be corrected before their full impact is realized.

                                              14
       The plain-error doctrine serves a very different purpose: providing a means for

appellate courts to remedy forfeited errors. The plain-error doctrine was first articulated

by the United States Supreme Court in Wiborg v. United States, 163 U.S. 632 (1896). In

Wiborg, the defendants failed to request “that the jury be instructed to find for [the]

defendants.” Id. at 658. The Court in Wiborg explained that although the jury instruction

issue “was not properly raised [in the trial court], yet if a plain error was committed in a

matter so absolutely vital to defendants, we feel ourselves at liberty to correct it.” Id.

The Court’s holding in Wiborg was later memorialized in Fed. R. Crim. P. 52(b). See

Fed. R. Crim. P. 52(b) advisory committee notes—1944. Federal Rule of Criminal

Procedure 52(b) reads: “A plain error that affects substantial rights may be considered

even though it was not brought to the court’s attention.” Fed. R. Crim. P. 52(b). The

purpose of Rule 52(b) is “to enable the courts of appeals to review prejudicial errors so

that any miscarriage of justice may be thwarted.” Young, 470 U.S. at 15 n.12 (citation

omitted) (internal quotation marks omitted). A serious miscarriage of justice occurs

when the error “seriously affects the fairness, integrity or public reputation of judicial

proceedings.”   Olano, 507 U.S. at 736 (citation omitted) (internal quotation marks

omitted). Based on Fed. R. Crim. P. 52(b),8 we promulgated Minn. R. Crim. P. 31.02,

which provides that a “[p]lain error affecting a substantial right can be considered by the

court on motion for new trial, posttrial motion, or on appeal even if it was not brought to

the trial court’s attention.” Minn. R. Crim. P. 31.02.

8
       See Minn. R. Crim. P. 31 cmt.—1990 (“Rule 31.02 (Plain Error) comes from
F[ed.] R. Crim. P. 52(b)”).

                                             15
       The United States Supreme Court has observed, “The plain-error doctrine of

Federal Rule of Criminal Procedure 52(b) tempers the blow of a rigid application of the

contemporaneous-objection requirement.” Young, 470 U.S. at 15 (quoted in State v.

Ramey, 721 N.W.2d 294, 299 (Minn. 2006)). The Court in Young further explained that

Rule 52(b) carefully balances the “need to encourage all trial participants to seek a fair

and accurate trial the first time around against [the] insistence that obvious injustice be

promptly redressed.” Young, 470 U.S. at 15 (citation omitted) (internal quotation marks

omitted). Later, in Olano, the Court emphasized the competing purposes of the forfeiture

and plain-error doctrines and explained that because “[a] rigid and undeviating judicial[]”

application of the forfeiture doctrine “would be out of harmony with . . . the rules of

fundamental justice,” Fed. R. Crim. P. 52(b) reflects an appellate court’s “limited power

to correct errors that were forfeited because not timely raised in district court.” 507 U.S.

at 731-32 (citation omitted) (internal quotation marks omitted).

       In sum, it is well established that the forfeiture and plain-error doctrines are based

on the competing purposes of encouraging timely objections at trial and providing

appellate courts a means to remedy unobjected-to errors. The concurrence correctly

points out that the plain-at-the-time-of-trial rule encourages timely objections at trial.

But that argument is neither relevant nor material because the purpose of the plain-error

doctrine is to provide a means for an appellate court to remedy unobjected-to errors.

       Not only is the plain-at-the-time-of-appellate-review rule a better rule for allowing

an appellate court to correct unobjected-to errors, but it also is more consistent with the

United States Supreme Court’s analysis of the second prong of the plain-error doctrine in

                                             16
Johnson, 520 U.S. at 467. Our discussion of the Johnson Court’s analysis of the second

prong is informed by a brief review of the Court’s decision in Olano, 507 U.S. 725. The

alleged error in Olano was plain both at the time of trial and at the time of appellate

review, and therefore the Court could have announced the rule proposed by the

concurrence—the plainness prong is only satisfied when the error is plain at the time of

trial and the time of appellate review. But the Court instead observed that it “need not

consider the special case where the error was unclear at the time of trial but becomes

clear on appeal because the applicable law has been clarified.” Id. at 734. The Court

ultimately held that an appellate court “cannot correct an error . . . unless the error is clear

under current law.” Id. (emphasis added).9 Keeping in mind the analysis in Olano, we

consider an important clarification to the plainness prong made by the United States

Supreme Court in Johnson.

       In Johnson, the Court considered for the first time a situation in which the law

changed between the time of trial and appellate review. 520 U.S. at 464. The issue in

Johnson was whether the district court committed plain error at the defendant’s perjury

trial when the court, rather than the jury, determined that the statement at issue was


9
        The rule announced in Olano was that where the law is unsettled both at the time
of trial and the time of appellate review, an appellate court may not exercise its limited
discretion to remedy unobjected-to errors under Rule 52(b). We have applied the Olano
rule on several occasions. See, e.g., State v. Jones, 753 N.W.2d 677, 689 (Minn. 2008)
(explaining that the unobjected-to prosecutorial misconduct was not “clear” or “obvious”
where no court had “conclusively resolved” the issue in question); State v. Crowsbreast,
629 N.W.2d 433, 438 (Minn. 2001) (explaining that continuing doubt regarding the
controlling law cut against the defendant’s plain-error argument because it confirmed that
the error was not plain).

                                              17
“material.” Id. At the time of trial, near unanimous precedent in the circuits held that the

question of materiality was for the judge to decide, but before the case was appealed, the

Supreme Court decided United States v. Gaudin, 515 U.S. 506 (1995), concluding that

the question of materiality must be submitted to the jury. Johnson, 520 U.S. at 464, 468

n.1. The Court noted that “[i]n the case with which we are faced today, the error is

certainly clear under ‘current law,’ but it was by no means clear at the time of trial.” Id.

at 467 (emphasis added). Having clarified that an appellate court cannot correct an error

unless the error is clear under the law at the time of appellate review, the Court

considered the Government’s argument that to satisfy the plainness prong, an error must

be “plain” both at the time of trial and at the time of appellate review. Id. The Court

acknowledged that such a rule would certainly encourage timely objections in the trial

court but it questioned the usefulness of objections to rulings that were plainly supported

by existing precedent. Id. at 467-68. The Court ultimately rejected the Government’s

argument, which demonstrates that an appellate court’s power to address a manifest

injustice is not limited to cases where a trial court should have recognized and sua sponte

corrected an unobjected-to error. Indeed, the Court held “that in a case such as this—

where the law at the time of trial was settled and clearly contrary to the law at the time of

appeal—it is enough that an error be ‘plain’ at the time of appellate consideration.” Id. at

468.

       Because the Court’s analysis in Johnson demonstrates that an appellate court’s

power to address a manifest injustice is not limited to cases where a trial court should

have recognized and corrected the error without the parties’ help, it substantially

                                             18
undercuts the concurrence’s arguments.              The plain-at-the-time-of-trial rule is

incompatible with Johnson because it limits an appellate court’s power to address a

manifest injustice to cases where the trial court should have recognized and sua sponte

corrected an unobjected-to error.10 In sum, the concurrence’s argument that the plain-at-

the-time-of-trial rule is more consistent with the purpose of the plain-error doctrine lacks

merit because it mischaracterizes the purpose of the plain-error doctrine and ignores the

United States Supreme Court’s decision in Johnson, 520 U.S. 461.

       Additionally, the concurrence relies upon language in Rairdon, 557 N.W.2d at

323, to allege that “we have never actually decided which rule—plain-at-the-time-of-trial




10
        Put differently, neither the defendant nor the district court were at fault for the trial
error in Johnson because the district court was following existing precedent. Thus,
assessing the error from the perspective of the district court in the Johnson scenario does
not further the purpose of the plain-error doctrine to provide a fairness-based exception to
the forfeiture doctrine. See Olano, 507 U.S. at 734 (“At a minimum, [an appellate court]
cannot correct an error . . . unless the error is clear under current law.”); Young, 470 U.S.
at 15 (explaining that the purpose of the plain-error doctrine is to promptly redress
obvious injustices); United States v. Ross, 77 F.3d 1525, 1539 (7th Cir. 1996) (“When
viewed as a limitation on appellate court power to circumvent forfeiture where an error is
debatable, rather than as a measure of district court fault, the ‘plainness’ inquiry must
look to the error’s certainty from the perspective of the appellate court.”); accord United
States v. Farrell, 672 F.3d 27, 36-37 (1st Cir. 2012). Moreover, adopting the rule
proposed by the concurrence would effectively preclude an appellate court from ever
remedying a manifest injustice when the law is unsettled at trial but settled in favor of the
defendant by the time of appellate review because an error made under unsettled law is
by definition not “plain.” See United States v. Smith, 402 F.3d 1303, 1315 n.7 (11th Cir.)
(“In practice, of course, this is the same as no plain error review at all, as error will never
be ‘plain’ under ‘unsettled’ law.”), vacated on other grounds, 545 U.S. 1125 (2005).
Such a result is contrary to the principle articulated by the United States Supreme Court
in Wiborg that an appellate court need not turn a blind eye to plain errors in matters that
are critical to the defendant’s right to a fair trial. 163 U.S. at 658.

                                               19
or plain-at-the-time-of-appeal—controls under Rule 31.02.” The argument is without

merit because our statement in Rairdon was mere dicta.

       In Rairdon, the defendant filed a petition for postconviction relief nine years after

his conviction. 557 N.W.2d at 322. As part of his petition, he claimed the prosecutor

committed plain error in closing argument. Id. at 322-23. Acknowledging that after

Rairdon’s trial our response to prosecutorial misconduct had grown “more stringent,” we

opined that Rairdon “may not reap any benefit from such decisions merely because he

waited nine years to seek review.” Id. at 323. It was in the context of discussing

Rairdon’s delay in seeking review that we said: “[T]he proper standard for overturning

Rairdon’s murder convictions is found in precedent existing at the time of his

conviction.” Id. Importantly, we did not decide in Rairdon whether the error was plain.

Instead, we affirmed the district court’s denial of postconviction relief based on the third

prong of the plain-error doctrine, which requires a showing that the alleged error affected

the defendant’s substantial rights. Id. at 324-25. More specifically, we determined that

although the prosecutor’s statements “may have constituted misconduct at the time of

Rairdon’s conviction,” “[a]ny improper conduct by the prosecutor . . . was not so

prejudicial that the defendant was denied a fair trial.” Id. at 324 (emphasis added). In

summarizing our analysis, we emphasized that we had assumed that the error was plain

and then addressed the third prong of the plain-error doctrine. More specifically we said

that “even if Rairdon has identified misconduct plain enough to overcome his failure to

object, such misconduct is insufficient to vacate Rairdon’s murder convictions when

viewed against all the evidence and in the context of the prosecutor’s entire closing

                                            20
statement.”    Id. at 325.    Consequently, our statement that “the proper standard for

overturning Rairdon’s murder convictions is found in precedent existing at the time of his

conviction” was dicta because it was not essential to our decision.11 See Carlton, 816

N.W.2d at 614 (explaining the statement in question was “dicta” because the resolution

of the question was not necessary to our ultimate holding); Black’s Law Dictionary 485

(8th ed. 2004) (defining judicial dicta as “[a]n opinion by a court on a question that is

directly involved, briefed, and argued by counsel, and even passed on by the court, but

that is not essential to the decision”).

       It is true that we have cited Rairdon for the proposition that an alleged error must

be plain at the time of conviction. See, e.g., State v. Tscheu, 758 N.W.2d 849, 863 (Minn.

2008) (“[F]or plain error to exist, the trial error must have been so clear under applicable

law at the time of the conviction . . . .”) (citation omitted) (internal quotation marks

omitted). But in each of those cases the law had either not changed during the pendency

of the appeal or the defendant was denied relief based on another of the plain-error

prongs.12 Consequently, the issue of when an error must be plain was not material to our


11
       The concurrence argues that we “prove too much” when we conclude the
statement in Rairdon is dicta. More specifically, the concurrence claims one can reach a
similar conclusion regarding the United States Supreme Court’s discussion of the
plainness prong in Johnson, 520 U.S. 461. But unlike Rairdon, the Court in Johnson did
not assume without deciding the existence of an error that was plain. Instead, the
Johnson Court expressly found the defendant had “satisfied” the “error” and “plainness”
prongs of the plain error doctrine. 520 U.S. at 467-68.
12
      Tscheu, 758 N.W.2d at 863 (involving a case in which the law had not changed
during the pendency of the appeal); Arredondo v. State, 754 N.W.2d 566, 574 (Minn.
2008) (same); State v. Manthey, 711 N.W.2d 498, 504 (Minn. 2006) (same); State v.
                                                   (Footnote continued on next page.)
                                            21
analysis. Moreover, our reference to the Rairdon dicta in a few cases does not call into

question our decision in Baird, 654 N.W.2d at 113, which squarely addressed the issue

before us in this case.

       Further, the rule proposed by the concurrence does not promote fairness. The

concurrence argues that Kelley and the defendant in Milton are similarly situated, and

therefore it is unfair for the court to conclude that the failure to explain the “intentionally

aiding” element of accomplice liability to the jury was not “plain” error in Milton, but is

“plain” error here. We disagree.

       The concurrence contends Milton and Kelley are similarly situated because their

appeals “arrived at this court in an identical procedural posture.” Infra at C-1. If we

were announcing a “plain-at-the-time-of-filing-the-appeal” rule, the concurrence’s

argument might have merit. But we are not announcing such a rule. Instead, we are

adopting a “plain-at-the-time-of-appellate-review” rule. The phrase “appellate review” in

this context means appellate review by a court on motion for new trial, posttrial motion,

or on appeal. See Minn. R. Crim. P. 31.02. At the time we reviewed Kelley’s conviction,

he and Milton were no longer similarly situated because the law had changed during the

pendency of Kelley’s appeal. Because we conclude Milton and Kelley were not similarly

situated at the time of appellate review, the concurrence’s fairness argument is not

persuasive.


(Footnote continued from previous page.)
Blanche, 696 N.W.2d 351, 375 (Minn. 2005) (same); State v. Hunt, 615 N.W.2d 294, 302
(Minn. 2000) (same); State v. Pilot, 595 N.W.2d 511, 518 (Minn. 1999) (same).

                                              22
         Moreover, any perceived unfairness in this case is the result of the law regarding

retroactivity, not plain error. Under the Teague rule, “new rules” apply to (1) cases

pending on direct appeal at the time of the new rule’s announcement, and (2) cases

arising after the rule is announced. Chambers v. State, 831 N.W.2d 311, 323 (Minn.

2013).     Absent certain exceptions, “new rules” do not apply to defendants whose

convictions were final at the time the new rule was announced. Id.            Whenever a

retroactivity line is drawn, an unfairness argument can be made. For example, suppose

Milton and Kelley’s appeals arrived at our court on the same day and in the same

procedural posture. The opinions in Milton and Kelley are issued a week apart, neither

defendant petitions for certiorari, and consequently Milton’s conviction becomes “final”

a week before Kelley’s conviction. If the United States Supreme Court announces a new

rule during the intervening week, Kelley will receive the benefit of the new rule because,

unlike Milton, Kelley’s conviction has not yet become final. In such an example, the

only difference between Milton and Kelley is that we decided Milton’s case first. Under

the concurrence’s argument, fairness would require us to deny Kelley the benefit of the

new rule, even though his conviction had not yet become final. Followed to its logical

conclusion, the concurrence’s fairness argument effectively modifies our retroactivity

jurisprudence by limiting the application of a new rule to cases that arise after the new

rule is announced.     Neither our case law nor the principles underlying retroactivity

support such a limitation.

         The concurrence’s fairness argument restricts the relief available under Minn. R.

Crim. P. 31.02 to errors that were plain at the time of trial. If we were to adopt the

                                             23
narrow interpretation of Rule 31.02 proposed by the concurrence, state defendants would

receive less relief than their federal counterparts. See Henderson, __ U.S. __, 133 S. Ct.

1121 (extending the relief available under the federal plain-error rule, Fed R. Crim. P.

52(b), to errors that were not plain at the time of trial but had become plain by the time of

review). Although we have on occasion provided greater protection or relief to criminal

defendants, we have never provided less relief than that available in federal court. See

State v. Ramey, 721 N.W.2d 294, 301-02 (Minn. 2006) (shifting the burden of proving

the impact of prosecutorial misconduct from the defendant to the State); State v. Borst,

278 Minn. 388, 397, 154 N.W.2d 888, 894-95 (1967) (extending right to court-appointed

counsel to persons charged with misdemeanor offenses).

                                            III.

       Kelley next argues that the plain error affected his substantial rights. Specifically,

Kelley argues that the evidence indicated S.A. did not know who actually took his

property, and that a properly instructed jury could have concluded that Kelley’s

unidentified friend, and not Kelley, actually robbed S.A.

       To convict Kelley as an accomplice of first-degree aggravated robbery, the State

had to prove beyond a reasonable doubt that Kelley (1) knew his friend was going to

commit the robbery, and (2) intended his presence to further the commission of the crime.

Milton, 821 N.W.2d at 806; State v. Mahkuk, 736 N.W.2d 675, 682 (Minn. 2007). To

establish that the erroneous accomplice liability jury instruction affected his substantial

rights, Kelley 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.” State v.

                                             24
Gomez, 721 N.W.2d 871, 880 (Minn. 2006); accord Griller, 583 N.W.2d at 741. 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. See, e.g., State v.

Montanaro, 802 N.W.2d 726, 733 (Minn. 2011) (concluding that the self-defense jury

instruction could not have had a significant effect on the jury’s verdict because “no

reasonable jury could find [defendant’s] actions to be a reasonable use of force”); State v.

Larson, 787 N.W.2d 592, 601 (Minn. 2010) (holding that defendant’s substantial rights

were not affected by allegedly erroneous accomplice liability jury instruction because

there was “considerable evidence” of the defendant’s intent that the victim be murdered);

Gomez, 721 N.W.2d at 881 (“Given the totality of the evidence, it seems unlikely that the

jury would have reached a different verdict.”).

       We conclude there is no reasonable likelihood that the erroneous jury instruction

had a significant effect on the jury verdict because there is considerable evidence of

Kelley’s guilt, and his defense did not focus on accomplice liability. Specifically, there is

considerable evidence in the record that Kelley knew his friend was going to commit the

robbery and intended his presence to further the commission of the crime. Kelley met

with his friend for a half hour shortly before the incident, and then they went outside

together and Kelley’s friend asked S.A. to come outside to meet with Kelley. The

meeting beforehand and the friend’s request that S.A. meet with Kelley support the

conclusion that Kelley and his friend planned the ensuing attack and robbery.

       Moreover, S.A. testified that Kelley and his friend “were searching through my

pockets . . . then they rolled me over because they were going through my pockets . . .

                                             25
and they were asking me ‘where’s your wallet.’ ” After Kelley and his friend had taken

all S.A’s belongings from his pockets, they continued kicking and hitting S.A. Kelley’s

presence and active participation in punching and kicking S.A., helping roll S.A. over to

gain access to his back pockets, and rummaging through his pockets is strong proof that

Kelley intended his presence to further the commission of the robbery. See State v.

Pierson, 530 N.W.2d 784, 788 (Minn. 1995) (stating that “presence, companionship, and

conduct before and after the offense are circumstances from which a person’s

participation in the criminal intent may be inferred”).

       Significantly, Kelley’s defense at trial did not focus on accomplice liability.

Indeed, in his closing argument, Kelley’s defense counsel only briefly mentioned

accomplice liability. Instead, Kelley focused his defense on the theory that S.A. had

mistakenly identified him as one of the assailants, and he was not guilty as a principal.

Kelley did not argue that he did not know the other person was going to commit the

crime, or that he did not intend his presence to further the commission of the crime.

Given Kelley’s strategy to focus on liability as a principal and not as an accomplice, the

error in the accomplice liability jury instruction was not prejudicial. See State v. Davis,

820 N.W.2d 525, 538 (Minn. 2012) (concluding that the defendant’s trial strategy

impacted whether trial error was prejudicial).




                                             26
       In sum, Kelley has failed to satisfy the third prong of the plain-error doctrine, and

therefore he is not entitled to a new trial.13 We therefore affirm Kelley’s conviction,

although on different grounds than the court of appeals.

       Affirmed as modified.




13
        In light of our conclusion that Kelley’s substantial rights were not violated, we
need not address whether the error affected the fairness and integrity of the judicial
proceedings. See State v. Morton, 701 N.W.2d 225, 234 (Minn. 2005) (“Only if the three
prongs of [the plain-error] rule are satisfied will we assess whether we should address the
error to ensure fairness and the integrity of the judicial proceedings.”).

                                            27
                                   CONCURRENCE

STRAS, Justice (concurring).

       The district court erred when it failed to explain to the jury what it means to

“intentionally aid” another person in committing a crime. As the court observes, the error

in this case is identical to the error from Eugene Milton’s murder trial. See State v.

Milton, 821 N.W.2d 789, 806-07 (Minn. 2012). In that case, we said that Milton was not

entitled to relief for the deficient jury instruction because the error was not plain. Id. at

807. In this case, however, the court reaches the opposite conclusion. The question is

why the court treats the two cases, both of which arrived at this court in an identical

procedural posture, differently.

       The answer, as the court admits, is simply that we decided Milton’s appeal first.

Specifically, the court adopts a rule that requires appellate courts to evaluate the plainness

of an error at the time of appeal rather than at the time of trial. Based on that rule, the

court concludes that the error was plain in Kelley’s case, even though the law of

accomplice liability was identical at the time of both trials. Because the court’s approach

is inconsistent with the text, history, and purpose of Minnesota’s plain-error rule, I cannot

join Part II of the court’s opinion. Accordingly, I concur only in the judgment.

                                              I.

       I begin with the text of Minn. R. Crim. P. 31.02, which states that “[p]lain error

affecting a substantial right can be considered by the court . . . on appeal even if it was

not brought to the trial court’s attention.” The text of the rule provides a clue about its

scope. The rule addresses “plain error” that could have been, but “was not[,] brought to

                                             C-1
the trial court’s attention.” Minn. R. Crim. P. 31.02. Notably, the Minnesota rule

specifically emphasizes that the focus is on whether a party could have brought the “plain

error” to the trial court’s attention. Compare Minn. R. Crim. P. 31.02 (referring to error

that could have been “brought to the trial court’s attention”), with Fed. R. Crim. P. 52(b)

(referring to error that could have been “brought to the court’s attention”). The text

implies that the error must have been plain at trial, because if it had not been, then there

would have been no “plain error” to bring to the trial court’s attention.

       While helpful, the text of Rule 31.02 does not definitively answer the question of

whether the rule requires courts to evaluate the plainness of the error at the time of trial or

at the time of appeal. However, the text does not provide the only clue to unlocking Rule

31.02’s meaning. The history and purpose of the rule further explain its scope.

                                              A.

       At early common law, a defendant’s failure to object to an error at trial resulted in

the forfeiture of the right to have the alleged error reviewed on appeal. See State v.

Hayes, 681 N.W.2d 203, 223 (Wis. 2004) (Sykes, J., concurring) (describing the

common-law rule). However, the harshness of the common-law rule led to the creation

of various exceptions, including an exception for plain error that affects a defendant’s

substantial rights.   See State v. Schumacher, 424 N.W.2d 672, 676-79 (Wis. 1988)

(describing various exceptions).     Minnesota’s plain-error standard, set forth in Rule

31.02, provides appellate courts with the discretion to remedy unpreserved errors, but

only if (1) there is error; (2) the error is plain; and (3) the error affects the defendant’s

substantial rights. See State v. Griller, 583 N.W.2d 736, 740, 742 (Minn. 1998). If the

                                             C-2
preceding requirements are satisfied, then an appellate court will address the error only if

it seriously affected the fairness, integrity, or public reputation of judicial proceedings.

Id.

       While Rule 31.02 provides a limited exception to the harsh consequences of the

common-law forfeiture rule, it does not abandon its purpose, which was to encourage

criminal defendants to contemporaneously object to any potential errors during a trial.

See State v. Ramey, 721 N.W.2d 294, 298 (Minn. 2006) (“Applying the plain error

doctrine encourages defendants to object at trial . . . .”).      The plain-error standard

provides an incentive for criminal defendants to object at trial by limiting the review of

unpreserved errors on appeal and making relief discretionary. State v. Pearson, 775

N.W.2d 155, 161 (Minn. 2009); Ramey, 721 N.W.2d at 298-99. Preserving an incentive

to object is important because contemporaneous objections alert the trial court to

potential errors when there is still an opportunity to correct them. See Ramey, 721

N.W.2d at 298-99 (explaining that contemporaneous objections “[are] preferred because

the district court is in an [sic] unique position to [rule on the issue]”); Rairdon v. State,

557 N.W.2d 318, 323 n.5 (Minn. 1996) (“Objections provide the trial court an

opportunity to prevent or cure the effects of [an error] and enhance a reviewing court’s

ability to make adequate judgments of whether [an error] has in fact occurred.” (citation

omitted)); see also, e.g., People v. Carines, 597 N.W.2d 130, 138 (Mich. 1999) (“Trial is

‘by far the best time to address a defendant’s constitutional and nonconstitutional

rights.’ ” (quoting People v. Grant, 520 N.W.2d 123, 130 (Mich. 1994))).



                                            C-3
       A different rule—one that treats unpreserved and preserved errors alike—would

permit defendants to lie in wait and raise an error on appeal if they do not receive a

favorable result at trial. In contrast, the plain-error standard, which raises the bar for

relief based on unpreserved errors, discourages the strategic withholding of objections in

order to gain the proverbial “second bite at the apple” on appeal. See Puckett v. United

States, 556 U.S. 129, 134, 140 (2009).

       Assessing plainness at the time of trial better serves the objective of encouraging

criminal defendants to contemporaneously object to potential errors that occur during a

trial. Error that is plain—that is, clear or obvious, see Ramey, 721 N.W.2d at 302—when

it is committed by definition is (or should be) apparent to the trial court. When an error is

plain at the time of trial, the trial court should be able to recognize and correct the error

without the parties’ help, so there is less reason to insist on an objection that may be

unnecessary. And because there is little benefit from requiring a party to inform the trial

court about an error that is obvious, there is correspondingly little damage done to the

contemporaneous-objection requirement when relief is granted for an unpreserved error

that was plain at the time of trial.1 See Henderson v. United States, __ U.S. __, __, 133

1
       I do not mean to suggest that there is no incentive to object to a plain error at trial.
The primary incentive, of course, is that the trial court, once informed of the error, might
remedy it before it occurs. Moreover, the plain-error rule is harder to satisfy than the
harmless-error rule—which governs appellate review of preserved error—even when an
error is plain. In particular, as I have explained elsewhere, the plain-error standard
generally places the burden of showing prejudice on the party seeking relief, makes relief
discretionary, and sets a high bar for the exercise of that discretion. See State v. Little,
851 N.W. 2d 878, 888-89 (Minn. 2014) (Stras, J., concurring in part, dissenting in part)
(contrasting the plain-error and harmless-error standards).


                                             C-4
S. Ct. 1121, 1132 (2013) (Scalia, J., dissenting) (“Objection is not so much needed when

the error ought to be plain to the court and to the prosecution.”); State v. Eldredge, 773

P.2d 29, 36 (Utah 1989) (“[W]hen an error is plain, a trial court can legitimately be said

to have had a reasonable opportunity to address and correct it, even in the absence of an

objection.”). In short, a plain-at-the-time-of-trial rule tempers the harshness of forfeiture

in cases in which an objection is largely unnecessary, while it leaves the incentive to

object in place for those instances in which an objection is most helpful to the trial court

in ensuring that the defendant receives a fair trial.2 See Ramey, 721 N.W.2d at 299 (“The

[plain-error] doctrine employs a careful balancing of our need to encourage all trial

participants to seek a fair and accurate trial the first time around against our insistence

that obvious injustice be promptly redressed.” (citations omitted) (internal quotation

marks omitted)).

       The plain-at-the-time-of-appeal rule, in contrast, turns the plain-error rule from a

neatly tailored complement to the contemporaneous-objection requirement into a lottery

for dilatory litigants. A straightforward example illustrates the inequities of the rule that


2
       A plain-at-the-time-of-trial rule generally assesses whether an error is plain at the
time that the error occurs, rather than at some other point in a criminal defendant’s trial.
Nevertheless, I adopt the broad phrase, “plain at the time of trial,” to account for the
possibility that, for a limited class of errors, a criminal defendant can adequately preserve
a claim by raising an objection at a subsequent point during a trial. See, e.g., Minn. R.
Crim. P. 26.03, subd. 12(l) (giving parties an opportunity to raise objections and request
curative instructions after closing arguments, outside the jury’s presence); id., subd.
19(4)(f) (“Objections to instructions claiming error in fundamental law or controlling
principle may be included in a motion for a new trial even if not raised before
deliberations.”).


                                            C-5
the court adopts. Suppose that the trials of two defendants occur on the same day and the

trial court in each case reads the same model jury instruction to the jury. There is no case

law indicating whether the model instruction accurately states the law, and neither

defendant objects to the instruction. Both defendants are found guilty, convicted, and

then appeal. The cases go before different panels of the court of appeals—again on the

same day—and each defendant argues that the model instruction was erroneous. One

panel finishes its opinion faster. It determines that the jury instruction was erroneous, but

that the defendant is not entitled to relief because the error was not plain. The other panel

issues its decision a few days later and reaches the same conclusion about the jury

instruction. This time, however, the panel must hold that the second defendant is eligible

for relief (assuming that the other requirements of the plain-error standard are met),

because the error has now become plain in light of the first panel’s decision, even though

the error—and everything else about the case—is identical to the first case. I see no

logical reason to treat the two cases differently when the differing treatment is based on

nothing more than which of the two appeals happens to be decided first.

       The above example is an abstracted summary of this case and State v. Milton.3

The court insists that Kelley and Milton are not similarly situated because Milton’s

appeal was decided first. Specifically, the court states that Milton and Kelly are “no

longer similarly situated because the law ha[s] changed during the pendency of Kelley’s

3
       Of course, the two cases here did not proceed concurrently, as in the example, but
they may as well have because the law of accomplice liability did not change between the
two trials.


                                            C-6
appeal.”   That is precisely my point.     The fact that Milton’s appeal came first is

happenstance, and making the availability of relief turn on that fact does not encourage

contemporaneous objections, promote fairness, or serve any other conceivable purpose of

the plain-error rule. The court says that, by treating Kelley and Milton alike, I “do[] not

promote fairness.” The court confuses fairness with leniency, apparently motivated by

the desire to give relief to as many defendants as possible. As I understand it, fairness

means treating similarly situated people similarly, so there is nothing unfair about

insisting that we treat Kelley and Milton alike when their appeals are identical in all

relevant respects. Cf. Desist v. United States, 394 U.S. 244, 258 (1969) (Harlan, J.,

dissenting) (arguing that when a court is presented with similarly situated defendants,

“we must grant [or not grant] the same relief or give a principled reason for acting

differently”). By contrast, fairness is ill served by the court’s rule, under which Milton,

who brought this instructional error to our attention, did not receive any benefit from his

efforts, while Kelley, who may not even have raised the issue if not for Milton, enjoys the

benefit of the rule from Milton’s case.

       Moreover, even aside from its inequities, the plain-at-the-time-of-appeal rule

weakens the incentives for criminal defendants to identify and bring potential errors to

the trial court’s attention. Cf. Henderson, __ U.S. at __, 133 S. Ct. at 1134 (Scalia, J.,

dissenting) (“It is remarkably naïve to disbelieve the proposition that lessening the costs

of noncompliance with [the contemporaneous-objection requirement] diminishes the

incentives to be diligent in objecting.”).    And it does so in instances in which a

contemporaneous objection is most valuable. The facts of this case illustrate the point.

                                           C-7
At the time of Kelley’s trial, we had never specifically said that a district court is required

to explain to the jury what it means to “intentionally aid[]” another under Minn. Stat.

§ 609.05, subd. 1 (2012), but, as we later recognized in Milton, our cases had implied that

such an explanation was necessary.        See Milton, 821 N.W.2d at 807.          Had Kelley

contemporaneously objected to the accomplice-liability instruction at trial and referred

the district court to State v. Mahkuk, 736 N.W.2d 675, 682 (Minn. 2007)—the case relied

upon in Milton—it is possible the district court would have concluded that the model

accomplice-liability jury instruction was deficient and would have corrected the

instruction.   In other words, a contemporaneous objection in this case could have

prevented the error altogether by allowing the district court to make a deliberate,

informed decision about the legal accuracy of the accomplice-liability model jury

instruction. Cf. Henderson, __ U.S. at __, 133 S. Ct. at 1133 (Scalia, J., dissenting) (“In

the difficult and often hectic process of conducting a trial, a judge depends on the

parties—‘officers of the court’—to flag less-than-obvious issues that might otherwise

escape his notice.”).

                                              B.

       The court agrees that “the plain-at-the-time-of-trial rule encourages timely

objections at trial,” but considers that fact irrelevant because the only purpose of the

plain-error rule “is to provide a means for an appellate court to remedy unobjected-to

errors.” The court’s insistence that the forfeiture rule and the plain-error rule “have

different purposes and are guided by different principles” is both confused and confusing.



                                             C-8
       The court’s position is confused because the plain-error rule does not actually have

a different purpose than the common-law forfeiture doctrine.          We have repeatedly

recognized that the purpose and effect of the plain-error rule, like the common-law

forfeiture doctrine, is to encourage contemporaneous objections. See, e.g., Pearson, 775

N.W.2d at 161 (“The plain error doctrine encourages defendants to object while in the

trial court so that any errors can be corrected before their full impact is realized.”);

Ramey, 721 N.W.2d at 298-99; see also Puckett, 556 U.S. at 134-36 (recognizing that the

plain-error rule is tied directly to the contemporaneous-objection requirement as it “sets

forth the consequences” for failing to object and promotes “judicial efficiency”).

       The court’s position is confusing because the court elsewhere states that the plain-

error rule “carefully balances” the dual purposes of encouraging contemporaneous

objections and allowing appellate courts to correct prejudicial error.         The court’s

inconsistency on this point is understandable, however, because it would be impossible to

explain why the rule limits appellate courts to correcting only plain errors if its only

purpose were “providing a means for appellate courts to remedy forfeited errors.” If the

plain-error rule really is just an invitation for appellate courts to review unpreserved

errors to avoid “a serious miscarriage of justice,” as the court suggests, there would be no

reason for the rule to be concerned with the plainness of the error at all. After all, the

third and fourth prongs of the plain-error standard are adequate to ensure that the error is

sufficiently important to merit reversal. See Griller, 583 N.W.2d at 740. Accordingly,

the fact that the rule does require the error to be plain, Minn. R. Crim. P. 31.02; see also



                                            C-9
Griller, 583 N.W.2d at 740, demonstrates that error correction is not, and cannot be, the

only purpose of the plain-error rule.4

       In my view, the rule that strikes the proper balance between remedying errors and

encouraging timely objections is the plain-at-the-time-of-trial approach, not an approach

that turns on which appeal happens to be decided first.

                                              II.

       The court offers four additional justifications for the plain-at-the-time-of-appeal

approach. None is persuasive.

                                              A.

       The court first claims that precedent dictates its decision in this case. In particular,

the court relies on a statement from State v. Baird that, “ ‘[t]o satisfy the second prong [of

4
       The court elsewhere says that, “[a]lthough we have on occasion provided greater
protection or relief to criminal defendants, we have never provided less relief.” In
emphasizing the point further, the court implies that, if criminal defendants in Minnesota
were to “receive less relief than their federal counterparts,” it would somehow be unjust
or conflict with precedent. Coupled with the court’s discussion of the plain-error
standard, which it says is concerned primarily with remedying unfairness, the clear
implication is a one-way ratchet in favor of criminal defendants, requiring Minn. R.
Crim. P. 31.02 to provide at least as much, and sometimes more, protection to criminal
defendants than the corresponding federal rule. However, in contrast to parallel
constitutional provisions, in which the United States Constitution provides a floor with
respect to those rights that are incorporated against the states, California v. Greenwood,
486 U.S. 35, 43 (1988); State v. Fuller, 374 N.W. 2d 722, 726-27 (Minn. 1985);
O’Connor v. Johnson, 287 N.W. 2d 400, 405 (Minn. 1979), nothing prevents a state court
from adopting a procedural rule that provides less protection to criminal defendants than
a comparable federal rule. To the extent that the court concludes otherwise, it is wrong.
Our task in interpreting procedural rules is to adopt the better interpretation of the rule’s
text, see State v. Underdahl, 767 N.W.2d 677, 682 (Minn. 2009), whether or not the
interpretation we adopt is more or less restrictive than a corresponding federal rule.
Notably, the court’s analysis hardly addresses the text of Rule 31.02 at all, much less
explains why its interpretation more closely aligns with the rule’s text.

                                            C-10
the plain-error rule,] it is sufficient that the error is plain at the time of appeal.’ ” 654

N.W.2d at 113 (quoting Griller, 583 N.W.2d at 741). The statement from Baird supports

the court’s approach, to be sure, but the truth is that our statements on the topic have been

varying and inconsistent. For example, we stated as follows in Rairdon v. State: “the

trial error must have been so clear under applicable law at the time of conviction . . . that

the defendant’s failure to object—and thereby present the trial court with an opportunity

to avoid prejudice—should not forfeit his right to a remedy.” 557 N.W.2d 318, 323

(Minn. 1996) (emphasis added). In a number of subsequent cases, we relied on Rairdon

as support for a plain-at-the-time-of-trial rule. See, e.g., State v. Tscheu, 758 N.W.2d

849, 863 (Minn. 2008); State v. Manthey, 711 N.W.2d 498, 504 (Minn. 2006); State v.

Pilot, 595 N.W.2d 511, 518 (Minn. 1999).

       However, we did not so much as acknowledge Rairdon in Baird, or in State v.

Griller, the decision on which Baird relied. Indeed, we have never given much attention

to the timing of the plainness requirement in any of our opinions, which likely accounts

for our varying statements. In Griller, the State conceded that the error was plain under

the federal plain-error rule and did not ask us to adopt a different approach under

Minnesota law. See 583 N.W.2d at 741 (citing Johnson v. United States, 520 U.S. 461,

468 (1997)). And in Baird, far from “squarely address[ing] the issue” as the court claims,

we simply quoted our statement in Griller without comment or analysis. See 654 N.W.2d

at 113. In fact, Rairdon probably contains our most complete analysis on the question

because we actually provided a reason for selecting one approach over the other.

Specifically, we stated that a plain-at-the-time-of-trial rule ensured that the defendant

                                           C-11
could not “reap any benefit from [intervening changes in the law] merely because he

waited nine years to seek review.” Rairdon, 557 N.W.2d at 323. Compare id., with

Baird, 654 N.W.2d at 113, and Griller, 583 N.W.2d at 741.

      The court dismisses our statement in Rairdon as dicta, however, because we

ultimately determined that any error in that case had not affected the defendant’s

substantial rights. See Rairdon, 557 N.W.2d at 324-25. Thus, according to the court, our

articulation of the plainness requirement in Rairdon “was not essential to our decision.”

The court’s broad pronouncements about dicta undermine its own analysis and prove too

much. Under the court’s approach, key aspects of our articulation of the plain-error rule

in Griller were “mere dicta,” as were the Supreme Court’s statements about the first three

prongs of the plain-error rule in landmark cases such as Johnson and United States v.

Olano, 507 U.S. 725 (1993)—decisions that the court relies on to support its preference

for the plain-at-the-time-of-appeal rule. See Griller, 583 N.W.2d at 742 (concluding that

the defendant had not satisfied the fourth prong); see also Johnson, 520 U.S. at 470

(concluding that the defendant had not satisfied the fourth prong); Olano, 507 U.S. at 741

(concluding that the defendants had not satisfied the third prong). Even the analysis from

Milton, which forms the basis of Kelley’s appeal, would be dicta under the court’s

approach because our discussion of the error in that case—that the jury was not told what

it means to “intentionally aid” another in committing a crime—was not essential to our

ultimate conclusion that Milton was not entitled to relief. See 821 N.W.2d at 807.

      Only by disregarding a line of cases can the court conclude that precedent requires

us to adopt the plain-at-the-time-of-appeal approach.     See, e.g., State v. Bobo, 770

                                          C-12
N.W.2d 129, 143-44 (Minn. 2009); Tscheu, 758 N.W.2d at 863; Arredondo v. State, 754

N.W.2d 566, 574 (Minn. 2008); Manthey, 711 N.W.2d at 504; State v. Blanche, 696

N.W.2d 351, 375 (Minn. 2005); State v. Hunt, 615 N.W.2d 294, 302 (Minn. 2000); Pilot,

595 N.W.2d at 518. In short, even a cursory review of our cases from the past 20 years

reveals that we have never actually resolved which rule—plain-at-the-time-of-trial or

plain-at-the-time-of-appeal—controls under Rule 31.02.        Compare, e.g., Tscheu, 758

N.W.2d at 863 (following Rairdon), with, e.g., State v. Jones, 753 N.W.2d 677, 689

(Minn. 2008) (following Baird and Griller). Accordingly, this case presents us with a

clear opportunity to reconcile our cases and to definitively decide which of the two rules

is more consistent with Rule 31.02. Cf. Oanes v. Allstate Ins. Co., 617 N.W.2d 401, 405-

06 (Minn. 2000) (stating that the contradiction between two lines of cases can be

“sufficient to override stare decisis concerns”).

                                             B.

       The court correctly observes that the Supreme Court of the United States decided

in Henderson v. United States that whether an error is plain must be determined at the

time of appeal, not at the time of trial, under Fed. R. Crim. P. 52(b). __ U.S. at __, 133 S.

Ct. at 1130-31. The court goes on, however, to treat Henderson as if it were binding on

this court. For example, the court says that the Supreme Court’s reaffirmation of the

plain-at-the-time-of-appeal rule in Henderson is even “[m]ore important[]” than our own

precedent on the issue.

       The court seems to forget that we have routinely interpreted our own rules of

procedure independently of the Supreme Court, particularly when the language of our

                                            C-13
rule is different from a corresponding federal rule, because the Supreme Court’s

interpretation is “ ‘instructive,’ but not binding” on us. Walsh v. U.S. Bank, N.A., 851

N.W.2d 598, 603 (Minn. 2014) (quoting T.A. Schifsky & Sons, Inc. v. Bahr Constr., LLC,

773 N.W.2d 783, 787 n.3 (Minn. 2009) (declining to adopt the “plausibility” standard

from Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556

U.S. 662 (2009), in the context of a motion to dismiss brought under Minn. R. Civ. P.

12.02(e)).   In Ramey, for instance, we held that, in cases involving prosecutorial

misconduct, the State bears the burden of persuasion to disprove an effect on a

defendant’s substantial rights under the plain-error standard, even though the approach

we adopted was inconsistent with Supreme Court case law. 721 N.W.2d at 301-02; see

also id. at 303 (Anderson, Paul, J., concurring) (recognizing that “the majority’s holding

represent[ed] a sharp and radical departure—a 180° turn—from our court’s and the

United States Supreme Court’s jurisprudence as to the burden of persuasion on the third

prong of the plain error test”). There is no reason we cannot adopt our own interpretation

of Minn. R. Crim. P. 31.02 in this case, just as in Ramey. At the very least, Ramey and

Walsh establish that the Supreme Court’s interpretation of a federal rule is not binding on

us, particularly when the language of our rule differs from its federal counterpart.5



5
       Compare Minn. R. Crim. P. 31.02 (“Plain error affecting a substantial right can be
considered by the court on motion for new trial, post-trial motion, or on appeal even if it
was not brought to the trial court’s attention.”), with Fed. R. Crim. P. 52(b) (“A plain
error that affects substantial rights may be considered even though it was not brought to
the court’s attention.”).


                                           C-14
                                             C.

       The court also invokes the principle that appellate courts generally apply the law

in effect at the time of their decision. The court correctly articulates that venerable

principle, but then fails to acknowledge that a plain-at-the-time-of-trial rule is also

consistent with that principle. Appellate courts have long been required to “apply the law

in effect at the time [they] render [their] decision.” Bradley v. Sch. Bd. of City of

Richmond, 416 U.S. 696, 711 (1974); see also United States v. Schooner Peggy, 5 U.S. (1

Cranch) 103, 110 (1801) (articulating the rule).

       However, recitation of the general principle provides guidance only on how to

determine whether an error exists, not the point at which an appellate court must evaluate

the plainness of that error.    In fact, the court’s approach mistakenly conflates two

analytically distinct concepts: the law of retroactivity and plain-error review. In criminal

cases, retroactivity is about what law to apply, which usually turns on whether a case has

become final.6 See State v. Houston, 702 N.W.2d 268, 271 (Minn. 2005) (stating that

“[t]he principle of finality is key” in determining whether changes in the law are

retroactive). Plain-error review, by contrast, is about determining whether to remedy a

6
        The court is correct when it states that the law of retroactivity can lead to
inconsistent treatment of criminal defendants, but the court presents no reason why
inconsistent treatment in one area justifies inconsistent treatment in another area. In the
retroactivity context, inconsistent treatment of defendants is sometimes required by the
“principle of finality[,] which is essential to the operation of our criminal justice system.”
Teague v. Lane, 489 U.S. 288, 309 (1989) (plurality opinion); see also Chambers v. State,
831 N.W.2d 311, 325 (Minn. 2013) (noting the importance of “finality and providing a
bright-line rule for when relief is to be retroactive”). However, the court proposes no
correspondingly important value justifying differing treatment of defendants in plain-
error review.

                                            C-15
forfeited error. In assessing whether an error is plain, we have never asked whether a rule

of criminal procedure is retroactive.

       The court nevertheless asserts that, if “[f]ollowed to its logical conclusion,” a

plain-at-the-time-of-trial rule would “effectively modif[y] our retroactivity jurisprudence

by limiting the application of a new rule to cases that arise after the new rule is

announced.” The court’s erroneous critique is simply a product of its misplaced belief

that there is an inextricable link between retroactivity and plain-error review. In reality,

whatever rule we adopt in this case will have no impact on our retroactivity jurisprudence

because the difference between the plain-at-the-time-of-trial and the plain-at-the-time-of-

appeal approaches relates solely to whether a criminal defendant is entitled to relief from

forfeiture under Minn. R. Crim. P. 31.02. After all, whether an error is plain is not about

“what the law is” but “how clear the law is,” United States v. Escalante-Reyes, 689 F.3d

415, 429 (5th Cir. 2012) (Smith, J., dissenting), and there is no reason why a rule or

statute focusing on the latter question must necessarily be limited to the law in effect at

the time of decision, cf. Landgraf v. USI Film Prods., 511 U.S. 244, 273-80 (1994)

(explaining that the law in effect at the time of decision generally governs unless a statute

states otherwise).

                                             D.

       Finally, the court is concerned that assessing whether an error was plain when it

occurred would be “cumbersome and complex” and would call for “a kind of temporal

ping-pong.” The court’s apparent concern is that it would be disorienting for an appellate

court to first examine current law to determine whether an error has occurred and then

                                           C-16
turn to the law governing the error at the time of trial to determine whether the error was

plain.

         Courts routinely look to the laws and facts in existence at various times. It may be

inconvenient, but the inquiry “is really not all that hard.” Henderson, __ U.S. at __, 133

S. Ct. at 1135 (Scalia, J., dissenting). In postconviction cases, for example, we routinely

decide both what the law was at the time of conviction and whether the petitioner knew

or should have known about a legal claim on direct appeal. See King v. State, 649

N.W.2d 149, 156 (Minn. 2002) (applying the procedural bar from State v. Knaffla, 309

Minn. 246, 243 N.W.2d 737 (1976)). And in official-immunity cases, we evaluate the

law in effect at the time of an injury to determine whether the law clearly prohibited a

public official’s discretionary actions when they occurred. See Rico v. State, 472 N.W.2d

100, 107-09 (Minn. 1991). There is nothing to suggest that a retrospective examination

of the law in plain-error cases would be any more taxing on courts than in these other

areas of the law.

                                             III.

         For the foregoing reasons, I would affirm Kelley’s conviction on the ground that

the error in his case was not plain.




                                             C-17
