                              STATE OF MINNESOTA
                              IN COURT OF APPEALS
                                    A14-0460

                                   State of Minnesota,
                                      Respondent,

                                            vs.

                            Antonio Dion Washington-Davis,
                                      Appellant.

                                 Filed July 13, 2015
                   Affirmed in part, vacated in part, and remanded
                                    Hooten, Judge

                             Ramsey County District Court
                               File No. 62-CR-13-2492

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

John Choi, Ramsey County Attorney, Kaarin Long, Assistant County Attorney, St. Paul,
Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Davi E. Axelson, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

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

Reyes, Judge.

                                    SYLLABUS

      Minnesota Statutes section 609.322, subdivision 1a(1)–(2) (2010), which

criminalizes the solicitation, inducement, and promotion of prostitution, is not facially

overbroad under the First Amendment to the United States Constitution or article I,

section 3, of the Minnesota Constitution.
                                      OPINION

HOOTEN, Judge

       On appeal from his conviction of multiple counts of prostitution-related offenses,

appellant argues that: (1) the statute that criminalizes the solicitation and promotion of

prostitution is facially overbroad and violates the First Amendment to the United States

Constitution and article I, section 3, of the Minnesota Constitution; (2) the evidence was

insufficient to establish that appellant aided his codefendant’s solicitation of two victims

to practice prostitution; (3) the district court committed reversible error by giving an

incorrect accomplice-liability jury instruction; (4) the district court abused its discretion

by allowing the state to present other-acts evidence; and (5) his sentences were unlawful

and must be corrected to comply with applicable law. We affirm in part, vacate in part,

and remand for resentencing.

                                          FACTS

       In August 2013, appellant Antonio Dion Washington-Davis was charged by

amended complaint with seven prostitution-related offenses, which allegedly occurred

between September 2010 and July 2012. The state also charged four of appellant’s

relatives with similar prostitution-related offenses: appellant’s brother, Otis Washington;

his uncles, Calvin Washington and Robert Washington; and the mother of appellant’s

children, Elizabeth Alexander. Specifically, appellant was charged as follows:

        count 1: first-degree aiding and abetting the solicitation of a minor to
         practice prostitution (C.B.);
        counts 2–4: second-degree aiding and abetting the promotion of the
         prostitution of an individual (J.M., B.R., and S.A.);



                                             2
        counts 5–6: second-degree aiding and abetting the solicitation of an
         individual to practice prostitution (C.J. and T.B.); and
        count 7: conspiracy to commit second-degree sex trafficking.

Count 5 was later dismissed by the state. A two-week jury trial was held in October to

November 2013 on the six remaining counts.         The state introduced the following

evidence at trial.

       Appellant and his family operated a prostitution scheme from 2008 until appellant

and his codefendants were arrested in April 2013. The scheme was primarily operated

out of the St. Paul home of appellant’s uncle, Robert Washington. All of the victims

were adult women, with the exception of C.B., who was under the age of 18. Appellant

was the “pimp” for some of the victims, while his brother or uncles were the “pimps” for

other victims. Appellant was deeply involved in the operation of the overall scheme,

such as directing which women would be assigned to “out-calls” (sexual encounters with

men at outside locations), posting advertisements for the prostitutes on websites, and

driving women to hotels and other locations for out-calls. B.R. testified that, although

she made out-calls for appellant’s uncle, Calvin Washington, appellant was “in charge”

because he was the one who posted advertisements on the Internet. Another woman,

A.T., testified that, although she made out-calls for appellant’s brother, appellant

sometimes drove her to out-calls.

       Elizabeth Alexander, a codefendant, testified against appellant on behalf of the

state without the promise of any immunity and without any plea agreement from the

state. Alexander met appellant in 2006, became romantically involved with him, and

eventually had two children with him. Early on in their relationship, appellant pressured


                                           3
her to work as a prostitute for him, which she eventually did. She described appellant as

controlling and testified that he would keep most or all of the money from her out-calls.

Appellant would physically abuse her if she did not make enough money or if she refused

to go on out-calls. She felt that she had no choice but to continue working as a prostitute

for him. The state’s expert witness testified that a typical pimp-prostitute relationship is

very similar to a domestic-violence relationship.

       Alexander testified that she helped appellant promote the prostitution of other

women from 2010 to 2012. When appellant was driving other women to out-calls,

Alexander sometimes went along. She helped appellant post advertisements online,

which depicted the victims in this case and other women. During this period of time,

Alexander continued working as a prostitute under appellant’s direction and control.

Their relationship finally deteriorated in 2012, shortly before the state brought its initial

complaint against appellant and his codefendants.

       Several of the victims in this case, as well as other victims of appellant and his

family, testified against appellant. The women testified that they were lured into the

prostitution scheme by appellant or one of his family members and that they typically

worked for one “pimp.” Some of the women had disabilities or were low functioning.

Appellant and his family members would keep most or all of the money the women

made. They kept the women isolated from one another in different parts of the house

owned by Robert Washington. They coerced the women into continuing to work as

prostitutes by repeatedly using violence and threats of violence.




                                             4
       In mid-2012, police began conducting a large-scale investigation into appellant

and his family’s prostitution operation, which eventually led to the arrest of appellant, his

brother, and his uncles. At the end of the trial, appellant testified on his own behalf. He

admitted that he knew his uncles promoted the prostitution of women, but denied that he

ever promoted the prostitution of Alexander or any other women.

       The jury found appellant guilty of all six counts. He was sentenced a month later.

Appellant had previously stipulated to the existence of an aggravating factor under Minn.

Stat. § 609.322, subd. 1(b)(1) (2010),1 namely, that “the offender ha[d] committed a prior

qualified human trafficking-related offense.”2 See Minn. Sent. Guidelines II.G. (2010)

(providing that the presence of an aggravating factor listed in section 609.322,

subdivision 1(b), requires an otherwise-presumptive sentence to be increased by 48

months, or by 24 months if the crime was an attempt or conspiracy).3 Appellant was

sentenced as follows, in this order:

        count 7, conspiracy to commit second-degree sex trafficking: a stayed
         sentence of 14 months, plus 24 months for the aggravating factor, for a
         total of 38 months;
        counts 3, 2, and 4, second-degree aiding and abetting the promotion of
         the prostitution of an individual (B.R., J.M., and S.A.): an executed

1
  We generally cite to the 2010 version of the Minnesota Statutes, which was in effect at
the time appellant’s offenses began. We note that section 609.322 has not been amended
since 2009.
2
  A sentencing jury also found that two of the victims, J.M. and B.R., were particularly
vulnerable, which constituted aggravating factors for sentencing purposes. Minn. Sent.
Guidelines II.D.2.b.(1) (2010). However, the district court did not order an upward
durational departure in this case and thus did not rely on these additional aggravating
factors.
3
  We generally cite to the 2010 version of the Minnesota Sentencing Guidelines, which
was in effect at the time appellant’s offense began. We note that there were no
substantive changes to Guideline 2.G in 2011.

                                             5
           sentence of 18 months, plus 48 months for the aggravating factor, for a
           total of 66 months for each of these counts;
          count 1, first-degree aiding and abetting the solicitation of a minor to
           practice prostitution (C.B.): an executed sentence of 90 months, plus 48
           months for the aggravating factor, for a total of 138 months; and
          count 6, second-degree aiding and abetting the solicitation of an
           individual to practice prostitution (T.B.): an executed sentence of 48
           months, plus 48 months for the aggravating factor, for a total of 96
           months.

The district court ordered the sentences on counts 1, 2, 3, 4, and 6 to be served

consecutively. This amounted to an aggregate executed sentence of 432 months. At the

sentencing hearing, appellant described himself as “the victim” and claimed that he was

innocent of all charges. This appeal followed.

                                           ISSUES

         I.     Is Minn. Stat. § 609.322, subd. 1a(1)–(2), facially overbroad under the First

Amendment to the United States Constitution or article I, section 3, of the Minnesota

Constitution?

         II.    Is there sufficient evidence to uphold appellant’s convictions on counts 1

and 6?

         III.   Did the district court commit reversible error by misstating the accomplice-

liability jury instruction?

         IV.    Did the district court abuse its discretion by admitting other-acts evidence?

         V.     Was the district court’s sentence unlawful?




                                               6
                                         ANALYSIS

                                               I.

       Appellant argues that Minn. Stat. § 609.322, subd. 1a(1)–(2), violates the First

Amendment to the United States Constitution and article I, section 3, of the Minnesota

Constitution because it is unconstitutionally overbroad on its face. Appellant asks this

court to reverse his convictions on counts 2, 3, 4, and 6 on First Amendment grounds.4

Appellant does not make an as-applied challenge to the statute. The constitutionality of

section 609.322, subdivision 1a(1)–(2), is an issue of first impression. “We review the

constitutionality of statutes de novo. The [s]tate bears the burden of showing that a

content-based restriction on speech does not violate the First Amendment.” State v.

Melchert-Dinkel, 844 N.W.2d 13, 18 (Minn. 2014) (citation omitted).

       The statute that appellant challenges reads in relevant part as follows: “Whoever,

while acting other than as a prostitute or patron, intentionally does any of the following”

is guilty of a felony: “(1) solicits or induces an individual to practice prostitution; [or] (2)

promotes the prostitution of an individual.” Minn. Stat. § 609.322, subd. 1a(1)–(2).

Appellant’s First Amendment challenge hinges on the definition of prostitution:

“‘Prostitution’ means hiring, offering to hire, or agreeing to hire another individual to

engage in sexual penetration or sexual contact, or being hired, offering to be hired, or




4
 Appellant does not ask this court to reverse his convictions on counts 1 and 7 on First
Amendment grounds because these convictions involve the sole minor victim in this case,
C.B.

                                               7
agreeing to be hired by another individual to engage in sexual penetration or sexual

contact.” Minn. Stat. § 609.321, subd. 9 (Supp. 2011).5

      Other subdivisions from the definitions statute are also relevant to appellant’s First

Amendment challenge. An individual “[p]romotes the prostitution of an individual” if he

knowingly:

             (1)    solicits or procures patrons for a prostitute;
             (2)    provides, leases or otherwise permits premises or
                    facilities owned or controlled by the person to aid the
                    prostitution of an individual;
             (3)    owns, manages, supervises, controls, keeps or
                    operates, either alone or with others, a place of
                    prostitution to aid the prostitution of an individual;
             (4)    owns, manages, supervises, controls, operates,
                    institutes, aids or facilitates, either alone or with
                    others, a business of prostitution to aid the prostitution
                    of an individual;
             (5)    admits a patron to a place of prostitution to aid the
                    prostitution of an individual; or
             (6)    transports an individual from one point within this
                    state to another point either within or without this
                    state, or brings an individual into this state to aid the
                    prostitution of the individual.

Id., subd. 7 (2010). “Prostitute” means “an individual who engages in prostitution by

being hired, offering to be hired, or agreeing to be hired by another individual to engage

in sexual penetration or sexual contact.” Id., subd. 8 (Supp. 2011).6 “Sexual contact”

means (1) “the intentional touching by an individual of a prostitute’s intimate parts,” or


5
  We cite to the 2011 version of section 609.321, subdivision 9, because the definition of
prostitution changed in 2011 during appellant’s ongoing prostitution scheme. The 2010
version reads: “‘Prostitution’ means engaging or offering or agreeing to engage for hire
in sexual penetration or sexual contact.” Minn. Stat. § 609.321, subd. 9 (2010).
6
  For the same reason cited in footnote 5, we cite to the 2011 version of section 609.321,
subdivision 8.

                                            8
(2) “the intentional touching by a prostitute of another individual’s intimate parts,” if

either act “can reasonably be construed as being for the purpose of satisfying the actor’s

sexual impulses.” Id., subd. 10 (2010). “Sexual penetration” includes a variety of

penetrative sex acts if done “for the purpose of satisfying sexual impulses.” Id., subd. 11

(2010).     Appellant argues that section 609.322, subdivision 1a(1)–(2), is overbroad

because the terms used in this section and defined in section 609.321 are themselves

overbroad.

       A.      Minn. Stat. § 609.322, subd. 1a(1)–(2), is a content-based regulation of
               speech.

       The United States and Minnesota Constitutions both guarantee the right to free

speech. U.S. Const. amend. I; Minn. Const. art. I, § 3. “As a general matter, the [First

Amendment] establishes that, above all else, the government has no power to restrict

expression because of its message, its ideas, its subject matter, or its content.” Melchert-

Dinkel, 844 N.W.2d at 18 (quotation omitted).          “But the Supreme Court has long

permitted some content-based restrictions in a few limited areas, in which speech is of

such slight social value as a step to truth that any benefit that may be derived from [it] is

clearly outweighed by” its costs to society. Id. at 19. These traditional areas include

incitement, obscenity, defamation, speech integral to criminal conduct, child

pornography, fraud, and true threats. United States v. Alvarez, 132 S. Ct. 2537, 2544

(2012) (plurality opinion).

       When analyzing a challenge to a criminal statute on First Amendment grounds, we

first determine whether the statute regulates speech, conduct, or both. See State v.



                                             9
Crawley, 819 N.W.2d 94, 101 (Minn. 2012). The state argues that Minn. Stat. § 609.322,

subd. 1a(1)–(2), regulates only conduct, not speech. We disagree.

       Subdivision 1a(1) prohibits “solicit[ing]” or “induc[ing]” an individual to practice

prostitution. The definitions section does not define “solicit” or “induce,” and non-

technical words “are construed . . . according to their common and approved usage.”

Minn. Stat. § 645.08(1) (2010).       The definition of “solicit” includes “seek[ing] or

obtain[ing] by persuasion, entreaty, or formal application.”       The American Heritage

Dictionary of the English Language 1666 (5th ed. 2011). To “persuade” means to cause

someone “to undertake a course of action as by means of argument, reasoning, or

entreaty.” Id. at 1318. To “entreat” means “[t]o make an earnest request of” someone or

“[t]o ask for earnestly.” Id. at 596. These definitions implicate speech. The definition of

“induce” includes “lead[ing] or mov[ing], as to a course of action, by influence or

persuasion.” Id. at 896. This also implicates speech.

       Subdivision 1a(2) prohibits “promot[ing] the prostitution of an individual.” This

phrase includes a variety of activities, such as “solicit[ing] or procur[ing] patrons for a

prostitute,” providing premises to aid the prostitution of an individual, supervising a place

of prostitution, supervising a business of prostitution, admitting a patron to a place of

prostitution, and transporting an individual to aid in the prostitution of the individual.

Minn. Stat. § 609.321, subd. 7. While some of these activities involve mostly or only

conduct, several appear to involve a combination of speech and conduct, and “solicit[ing]

or procur[ing] patrons for a prostitute” directly implicates speech. Therefore, Minn. Stat.




                                             10
§ 609.322, subd. 1a(1)–(2), regulates both speech and conduct and therefore implicates

the First Amendment. See State v. Machholz, 574 N.W.2d 415, 420 (Minn. 1998).

      A criminal statute that regulates speech is content-based “if a person may be

prosecuted under the statute [based] entirely on what the person says.” Crawley, 819

N.W.2d at 101. In other words, a content-based statute regulates speech because of its

content. Melchert-Dinkel, 844 N.W.2d at 18. Section 609.322, subdivision 1a(1)–(2), is

a content-based speech regulation because it proscribes a particular type of speech based

on its content: speech that is used to “solicit[] or induce[] an individual to practice

prostitution” or to “promote[] the prostitution of an individual.” We conclude, however,

that the speech proscribed by the statute is outside the ambit of the First Amendment’s

protection because it is speech integral to criminal conduct. See Giboney v. Empire

Storage & Ice Co., 336 U.S. 490, 498, 69 S. Ct. 684, 688 (1949); see also New York v.

Ferber, 458 U.S. 747, 759, 761, 102 S. Ct. 3348, 3355, 3357 (1982).

      B.     Minn. Stat. § 609.322, subd. 1a(1)–(2), is not facially overbroad.

      Appellant argues that Minn. Stat. § 609.322, subd. 1a(1)–(2), is overbroad because

it also criminalizes activities protected by the First Amendment. To be constitutional, a

statute that punishes speech based on its content must not be overbroad. Crawley, 819

N.W.2d at 102.     “A statute is overbroad on its face if it prohibits constitutionally

protected activity, in addition to activity that may be prohibited without offending

constitutional rights.” Machholz, 574 N.W.2d at 419. A criminal defendant may bring a

facial challenge against a statute on First Amendment grounds even if the defendant’s

own activity is plainly unprotected by the First Amendment. Id.


                                           11
       In general, a statute is considered overbroad only “if it prohibits or chills a

substantial amount of protected speech along with unprotected speech.” Crawley, 819

N.W.2d at 102 (emphasis added); see also New York v. Ferber, 458 U.S. 747, 769, 102 S.

Ct. 3348, 3361 (1982) (“We have . . . insisted that the overbreadth involved be

‘substantial’ before the statute involved will be invalidated on its face.”). “The mere fact

that one can conceive of some impermissible applications of a statute is not sufficient to

render it susceptible to an overbreadth challenge.” United States v. Williams, 553 U.S.

285, 303, 128 S. Ct. 1830, 1844 (2008) (quotation omitted).

       In support of appellant’s argument that the statute is overbroad, he identifies two

categories of activities, which we analyze separately.

              1.      Non-obscene films and photographs depicting sexual penetration
                      and/or sexual conduct

       Appellant argues that the statute is overbroad because it criminalizes the

solicitation, inducement, or promotion of consenting adults to portray themselves in:

(1) non-obscene7 adult films depicting sexual penetration and/or sexual contact; (2) other

films depicting sexual contact; (3) non-obscene adult photographs depicting sexual

penetration and/or sexual contact; and (4) other photographs depicting sexual contact.

Appellant’s argument is unpersuasive because the statute does not criminalize or prohibit

any of these activities.

7
  Obscenity is a well-recognized category of speech that is not protected by the First
Amendment. Alvarez, 132 S. Ct. at 2544 (plurality opinion). However, the Minnesota
Supreme Court has recognized that “non-obscene pornography involving adult
performers is protected speech under the First Amendment.” State v. Mauer, 741 N.W.2d
107, 110 (Minn. 2007). Accordingly, appellant limits his argument to non-obscene films
and photographs.

                                            12
       Under the definitions statute, “prostitution” means, in relevant part, “hiring,

offering to hire, or agreeing to hire another individual to engage in sexual penetration or

sexual contact.” Minn. Stat. § 609.321, subd. 9. “Sexual penetration” includes a variety

of acts, but only if done “for the purpose of satisfying sexual impulses.” Id., subd. 11.

“Sexual contact” means the intentional touching of “intimate parts,” but only if the

touching “can reasonably be construed as being for the purpose of satisfying the actor’s

sexual impulses.” Id., subd. 10.

       In appellant’s examples, it is true that consenting adults are solicited, induced, or

promoted to engage in sexual penetration and/or sexual contact.            But, the sexual

penetration or sexual contact is not done “for the purpose of satisfying the actor’s sexual

impulses.”    Instead, the solicitation, inducement, or promotion of the sex acts in

appellant’s examples is done for the purpose of making a film or a photograph. We are

persuaded by the state’s argument that “[h]iring actors or models to act out a sex act has

the immediate purpose of creating a product: a film or photograph. It does not have the

immediate purpose of satisfying sexual impulses, even if it secondarily provides that

result for [the] actor or producer.” Therefore, these activities do not fall within the

statute’s reach.

              2.     Lap dancing

       Appellant argues that the statute is overbroad because it criminalizes lap dancing

which, as defined by him, involves an exotic dancer “touching her intimate parts to a

patron’s crotch area. In return, the patron pays the dancer for the dance.” Appellant

argues that this type of allegedly “constitutionally protected dancing” involves paying


                                            13
money for “sexual contact” that has the purpose of satisfying sexual impulses.

Appellant’s argument is unpersuasive because lap dancing, as he has defined it, is not

constitutionally protected speech.

       “Nude dancing in bars is expressive conduct, and . . . is protected under our state

constitution.” Knudtson v. City of Coates, 519 N.W.2d 166, 169 (Minn. 1994); see also

City of Erie v. Pap’s A.M., 529 U.S. 277, 289, 120 S. Ct. 1382, 1391 (2000) (plurality

opinion) (noting that totally nude erotic dancing “is expressive conduct, although we

think that it falls only within the outer ambit of the First Amendment’s protection”). In

State v. Duncan, the defendants were prosecuted under Minnesota’s indecent-exposure

statute for paying money to nude erotic dancers in exchange for having the dancers wrap

their legs around the defendants’ necks. 605 N.W.2d 745, 747 (Minn. App. 2000),

review denied (Minn. Apr. 18, 2000). At the time, the indecent-exposure statute forbade

“engaging in public displays of lewd, lascivious, or other indecent behavior.” Id. at 749.

The defendants challenged the statute on overbreadth grounds. Id. This court rejected

that challenge, concluding that “lewd and lascivious behavior is synonymous with

obscene behavior. Obscene behavior, conduct, or speech is not protected by the First

Amendment and may be regulated. Thus, behavior that is lewd and lascivious is not

constitutionally protected, and [the statute] prohibiting such conduct, is not

unconstitutionally overbroad.” Id. at 750 (citations omitted).

       Like the conduct in Duncan, lap dancing, as defined by appellant, is also “lewd”

and “lascivious” behavior and, therefore, is obscene conduct that is not protected by the

First Amendment or by article I, section 3, of the Minnesota Constitution. Accordingly,


                                            14
even if Minn. Stat. § 609.322, subd. 1a(1)–(2), criminalizes or prohibits lap dancing as

defined by appellant, the statute is not overbroad because it does not proscribe

constitutionally protected activity. See Machholz, 574 N.W.2d at 419 (indicating that a

statute may be facially overbroad only “if it prohibits constitutionally protected activity”).

       Even if lap dancing as defined by appellant is not obscene, the statute is still not

overbroad because there is no substantial overbreadth here. See Crawley, 819 N.W.2d at

104 (noting that a statute is overbroad only if it punishes “a substantial amount of

protected speech in addition to unprotected speech”); see also Broadrick v. Oklahoma,

413 U.S. 601, 615, 93 S. Ct. 2908, 2918 (1973) (“[P]articularly where conduct and not

merely speech is involved, we believe that the overbreadth of a statute must not only be

real, but substantial as well, judged in relation to the statute’s plainly legitimate sweep.”);

cf. Knudtson, 519 N.W.2d at 167, 169 (holding that a city ordinance prohibiting nude

dancing at a licensed liquor establishment constituted only a “nominal and incidental”

curtailment of free expression). Given the minimal First Amendment value at stake here,

there is no substantial overbreadth. We agree with the state: “Balanced with the state’s

important interest in prohibiting the promotion of the sale of human bodies for sexual

gratification, any incidental intrusion onto the limited First-Amendment ground identified

by appellant is constitutionally tolerable.”

                                               II.

       Appellant argues that the evidence is insufficient to prove that he intentionally

aided his brother, Otis, in soliciting C.B. (count 1) and T.B. (count 6) to practice

prostitution. “In reviewing a sufficiency of the evidence challenge, we review the record


                                               15
in the light most favorable to the conviction to determine whether the evidence

reasonably could have permitted the jury to convict.” State v. Henderson, 620 N.W.2d

688, 704–05 (Minn. 2001).

       Minn. Stat. § 609.322, subds. 1(a) and 1a(1) (2010), prohibit anyone from

“intentionally” soliciting or inducing a person to practice prostitution.        Under the

accomplice-liability statute, “[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.” Minn. Stat. § 609.05, subd. 1 (2010).

“‘Intentionally’ means that the actor either 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

that result.” Minn. Stat. § 609.02, subd. 9(3) (2010). To sustain appellant’s convictions

under section 609.322, the record must therefore contain proof beyond a reasonable doubt

either that appellant had the purpose of aiding Otis in soliciting C.B. and T.B. to practice

prostitution, or that appellant believed his act of aiding Otis, if successful, would cause

C.B. and T.B. to practice prostitution. See State v. Peterson, 673 N.W.2d 482, 486

(Minn. 2004) (“[T]he Due Process Clause requires the state to prove every element of a

charged offense beyond a reasonable doubt.”).

       As a state of mind, intent “generally is proved circumstantially, by inference from

words and acts of the actor both before and after the incident.” State v. Johnson, 616

N.W.2d 720, 726 (Minn. 2000). “A conviction based on circumstantial evidence . . .

warrants heightened scrutiny” compared to a conviction based on direct evidence. State




                                            16
v. Al-Naseer, 788 N.W.2d 469, 473 (Minn. 2010). This heightened scrutiny comes in the

form of a two-step analysis. State v. Silvernail, 831 N.W.2d 594, 598 (Minn. 2013).

      “The first step is to identify the circumstances proved.” Id. “[I]n determining the

circumstances proved, we consider only those circumstances that are consistent with the

verdict.” Id. at 599. “As with direct evidence, we construe conflicting evidence in the

light most favorable to the verdict and assume that the jury believed the [s]tate’s

witnesses and disbelieved the defense witnesses.” Id. (quotation omitted).

      The relevant circumstances proved are as follows. On the afternoon of July 6,

2012, C.B. and T.B. got into a car with appellant and Otis. Otis was driving, and

appellant was sitting in the front passenger seat. Otis drove them to Robert Washington’s

house, the headquarters of the prostitution operation. In the car, Otis and appellant had a

conversation about how they could “make a lot of money from” T.B. After they arrived

at the house, Otis brought up the topic of prostitution to C.B. and T.B. Otis explained to

C.B. and T.B. that he and appellant took photographs of women, placed advertisements

on the Internet that included the photographs, and then gave the women rides when

people responded to the advertisements.          Otis and appellant discussed placing

advertisements for C.B. and T.B. and discussed how much money they could make from

having them work as prostitutes.8


8
   Appellant argues that this is not a circumstance proved because the underlying
testimony of the investigator who interviewed C.B. is hearsay and is inconsistent with
C.B.’s testimony. We disagree. First, this testimony was received into evidence without
a hearsay objection by appellant. Second, in determining the circumstances proved, “we
construe conflicting evidence in the light most favorable to the verdict.” Silvernail, 831
N.W.2d at 599 (quotation omitted).

                                            17
       At some point, appellant left the house with two prostitutes, leaving Otis, C.B.,

and T.B. behind. C.B. was originally going to go with appellant, but Otis and appellant

decided that she would go with Otis and T.B. instead. Otis told another prostitute, A.T.,

that he and appellant had brought C.B. and T.B. to the house in order to solicit them to

work as prostitutes for appellant and himself. Eventually, Otis, C.B., T.B., and A.T. left

the house so that A.T. could make out-calls and C.B. and T.B. could observe. A.T. made

two out-calls that night, and Otis described to C.B. in more detail the nature of the

prostitution scheme and tried to recruit her into it.

       “The second step is to determine whether the circumstances proved are consistent

with guilt and inconsistent with any rational hypothesis except that of guilt.”          Id.

(quotations omitted). “Circumstantial evidence must form a complete chain that, as a

whole, leads so directly to the guilt of the defendant as to exclude beyond a reasonable

doubt any reasonable inference other than guilt.” State v. Hanson, 800 N.W.2d 618, 622

(Minn. 2011). The circumstances proved are consistent with guilt because they indicate

that appellant intended to aid Otis’ solicitation of C.B. and T.B. to practice prostitution.

Otis and appellant picked up C.B. and T.B., discussed how much money they could make

by having T.B. work as a prostitute, and brought them back to Robert Washington’s

house. At the house, Otis and appellant discussed placing advertisements to promote the

prostitution of C.B. and T.B. and discussed how much money they could make by having

them work as prostitutes.

       Appellant’s alternative hypothesis that he was “merely present” while Otis tried to

persuade C.B. and T.B. to become Otis’ prostitutes is unreasonable in light of all the


                                              18
circumstances proved. The evidence shows that appellant was not a passive observer, but

rather was actively involved in the solicitation of C.B. and T.B by discussing with Otis

how much money they could make by having C.B. and T.B. work as prostitutes and how

they could place online advertisements for C.B. and T.B. For similar reasons, appellant’s

alternative hypothesis that he “had no interest in soliciting C.B. and [T.B.] to practice

prostitution and thus . . . sent them with Otis” is unreasonable and inconsistent with the

circumstances proved. We conclude that the circumstantial evidence as to appellant’s

intent “form[s] a complete chain that, as a whole, leads so directly to the guilt of

[appellant] as to exclude beyond a reasonable doubt any reasonable inference other than

guilt.” Hanson, 800 N.W.2d at 622.

                                            III.

       Appellant next argues that the district court committed reversible error by

improperly instructing the jury on accomplice liability. Because appellant did not object

at trial to the jury instruction, we review this claim for plain error affecting substantial

rights. State v. Manley, 664 N.W.2d 275, 283 (Minn. 2003). The three-pronged test for

plain error requires appellant to show that: (1) the district court committed error; (2) the

error committed was plain; and (3) the plain error affected his substantial rights. Id.

Each prong of the test must be satisfied. Id.

       “In the context of jury instructions, a district court has broad discretion.” State v.

Kelley, 855 N.W.2d 269, 274 (Minn. 2014). “But a district court abuses that discretion if

its jury instructions confuse, mislead, or materially misstate the law. We review the jury




                                             19
instructions as a whole to determine whether the instructions accurately state the law in a

manner that can be understood by the jury.” Id. (citation omitted).

       Counts 1, 2, 3, 4, and 6 each included aiding and abetting as an element of the

offense. “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.” Minn. Stat. § 609.05, subd. 1. “[A]n accomplice liability

jury instruction must explain to the jury that in order 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.” State v. Milton, 821 N.W.2d 789,

808 (Minn. 2012) (emphasis added).

       Here, the district court instructed the jury, in relevant part: “The defendant is

guilty of a crime committed by another person when the defendant has played an

intentional role in aiding the commission of the crime and made no reasonable effort to

prevent the crime before it was committed.” The district court plainly erred because its

instruction did not contain the requisite Milton language, which instructs the jury as to

both a defendant’s knowledge and intent in aiding the commission of the offense. Id.

Moreover, the district court’s instruction included an additional element that does not

exist by requiring appellant to have affirmatively tried to stop his codefendants from

committing their crimes in order to avoid accomplice liability. Therefore, the first two

prongs of the plain-error test are satisfied, as the state concedes.




                                              20
       To establish the third prong of the plain-error test, that an erroneous jury

instruction affected his substantial rights, appellant 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.” Kelley, 855 N.W.2d at 283 (quotation omitted).

“An erroneous jury instruction will not ordinarily have a significant effect on the jury’s

verdict if there is considerable evidence of the defendant’s guilt.” Id. at 283–84.

       We conclude that there is no reasonable likelihood that a properly instructed jury

would have acquitted appellant. First, the record contains evidence that appellant acted

directly in soliciting and promoting the prostitution of J.M. (count 2), B.R. (count 3), and

S.A. (count 4), and therefore no aiding and abetting finding was necessary to sustain

appellant’s convictions of counts 2–4. Second, as to counts 1 and 6 involving C.B. and

T.B., respectively, appellant cannot meet his heavy burden of showing that the district

court’s plain error affected his substantial rights because the record contains considerable

evidence that (1) appellant knew that Otis was committing a crime, and (2) appellant

intended that his presence or actions would further the commission of the crime.

Specifically, the evidence showed that appellant and Otis picked up C.B. and T.B.,

brought them to their uncle’s house, discussed how much money they could make by

having C.B. and T.B. work for them as prostitutes, and discussed placing online

advertisements in order to solicit patrons for C.B.’s and T.B.’s services as prostitutes.




                                             21
                                            IV.

       Appellant claims that the district court abused its discretion by admitting alleged

other-acts evidence. We will not overturn a district court’s evidentiary decisions “absent

a clear abuse of discretion.” State v. Richardson, 670 N.W.2d 267, 277 (Minn. 2003).

       A.     Testimony of two pre-2010 victims

       Before trial, the state sought to introduce the testimony of two women who

claimed to have worked as prostitutes for appellant and Robert Washington prior to the

charged offense period. The state sought to introduce this evidence because it gave

“context” to the charged offenses and it showed appellant’s intent, knowledge, and

absence of mistake or accident, as well as the existence of a common scheme or plan to

promote the prostitution of women. The state emphasized the conspiracy count and that

this was an ongoing conspiracy. Appellant argued that the evidence was irrelevant,

cumulative, and simply propensity evidence. The district court allowed the state to

present this evidence because it found that the state’s reasons for admissibility were valid.

       “Evidence of another crime, wrong, or act is not admissible to prove the character

of a person in order to show action in conformity therewith.” Minn. R. Evid. 404(b).

Such evidence may be admissible, however, for non-propensity purposes, such as

showing motive, intent, knowledge, identity, absence of mistake or accident, or a

common scheme or plan. Id.; State v. Ness, 707 N.W.2d 676, 685 (Minn. 2006). Courts

apply a five-step analysis to determine the admissibility of other-acts evidence:

              (1) the state must give notice of its intent to admit the
              evidence; (2) the state must clearly indicate what the evidence
              will be offered to prove; (3) there must be clear and


                                             22
              convincing evidence that the defendant participated in the
              prior act; (4) the evidence must be relevant and material to the
              state’s case; and (5) the probative value of the evidence must
              not be outweighed by its potential prejudice to the defendant.

Ness, 707 N.W.2d at 685–86. Appellant challenges the admission of this evidence under

steps (2), (4), and (5) of the Ness analysis. But, as to step (2), the record shows that the

state clearly indicated what the evidence was offered to prove, both in its pretrial motion

and during multiple pretrial arguments before the district court.

       Appellant argues that the offered evidence did not resolve any disputed facts at

trial and was simply propensity evidence. Evidence is relevant if it has “any tendency to

make the existence of any fact that is of consequence to the determination of the action

more probable or less probable than it would be without the evidence.” Minn. R. Evid.

401. We see no error in the admission of this evidence because it tended to show

appellant’s intent, knowledge, absence of mistake or accident, and common scheme or

plan. Intent is an element of the charged offenses, Minn. Stat. § 609.322, subds. 1(a), 1a,

and evidence that appellant and Robert Washington promoted the prostitution of these

two prior victims was relevant because it supported the state’s argument that appellant

intended to aid and abet the prostitution of the current victims. Appellant’s knowledge

was relevant because the state needed to prove that appellant knew the prostitution

scheme existed and knew how to run the scheme with his family. Appellant’s absence of

mistake or accident was relevant because the state needed to convince the jury that

appellant was not just an innocent observer caught in the web of his family’s prostitution

scheme but, rather, was a key participant



                                            23
       The existence of a common scheme or plan was relevant because it provided

context to the individual stories of the current victims, showed that appellant’s

solicitation and promotion of the current victims as prostitutes was part of an ongoing

criminal enterprise, and tended to corroborate the state’s other evidence and make the

state’s case more believable. In order for evidence of another crime, wrong, or act to be

admissible to show a common scheme or plan, however, “it must have a marked

similarity in modus operandi to the charged offense.” Ness, 707 N.W.2d at 688. We

analyze this requirement as to each prior victim.

       B.T. worked as a prostitute for appellant for four or five months in 2009. Upon

reviewing the record, we conclude that appellant’s promotion of B.T.’s prostitution was

markedly similar to the charged offenses because: (1) appellant was operating the

prostitution scheme with his uncle Robert Washington; (2) appellant and Alexander

posted online advertisements of B.T.; (3) appellant exercised financial control over B.T.

by forcing her to sell her car and give the money to appellant and by giving all of the

money she made on out-calls to appellant; and (4) B.T. endured appellant’s verbal abuse

and witnessed appellant’s physical abuse toward Alexander, and she felt scared to leave.

       K.W. worked as a prostitute for Robert Washington from 2008 until 2010, and

testified about her experience as a prostitute and her observations of the prostitution of

B.T. and other women who worked for Robert Washington and appellant. We conclude

that appellant’s prostitution-related activities as described by K.W. were markedly similar

to the charged offenses because: (1) appellant was operating the prostitution scheme with

his uncle Robert Washington; (2) appellant and Robert Washington directed K.W. to post


                                            24
online advertisements for them; (3) appellant and Robert Washington would drive the

women to out-calls; (4) all of the money that appellant’s prostitutes made went to

appellant; (5) eventually, the prostitution activities took place out of Robert Washington’s

St. Paul home; (6) appellant promoted the prostitution of B.T.; and (7) K.W. saw

appellant use physical violence against Alexander.

       Appellant argues that the probative value of the testimony of B.T. and K.W. was

outweighed by its potential for unfair prejudice. We disagree. As discussed above, their

testimony was relevant to a number of permissible purposes. Moreover, the district court

provided a cautionary instruction to the jury prior to their testimony and during its final

instructions, which “lessened the probability of undue weight being given by the jury to

the evidence.” State v. Lindsey, 755 N.W.2d 752, 757 (Minn. App. 2008) (quotation

omitted), review denied (Minn. Oct. 29, 2008). We conclude that the district court did

not abuse its discretion by admitting this testimony.

       B.     Evidence of appellant’s acts of violence against Alexander and J.M.

       Over appellant’s objection, the district court allowed the state to present evidence

showing that appellant committed acts of violence against Alexander and J.M. during the

time that they worked for him as prostitutes. Appellant argues that this evidence “had no

relevance to the charged offense[s] and only made [appellant] look like a bad guy to the

jury.” We disagree and find that this evidence constitutes immediate-episode evidence,

which is an exception to the general character-evidence rule. State v. Riddley, 776

N.W.2d 419, 425 (Minn. 2009).




                                            25
              [T]he rule excluding evidence of the commission of other
              offenses does not necessarily deprive the state of the right to
              make out its whole case against the accused on any evidence
              which is otherwise relevant upon the issue of the defendant’s
              guilt of the crime with which he was charged. Rather, the
              state may prove all relevant facts and circumstances which
              tend to establish any of the elements of the offense with
              which the accused is charged, even though such facts and
              circumstances may prove or tend to prove that the defendant
              committed other crimes.

Id. (alteration omitted) (quotations and citation omitted). Immediate-episode evidence is

admissible “where two or more offenses are linked together in point of time or

circumstances so that one cannot be fully shown without proving the other, or where

evidence of other crimes constitutes part of the [events at issue].” Id. (quotation omitted).

       We conclude that appellant’s acts of violence against Alexander and J.M. were

properly admitted as immediate-episode evidence. Alexander, J.M., and B.T. testified

about appellant’s violence and threats of violence toward Alexander and J.M. during the

course of the prostitution scheme. The state’s expert on sex trafficking testified that

pimps use violence and threats of violence to maintain control over the women and to

coerce them into continuing to work as prostitutes for them. The testimony of Alexander

and the victims showed that appellant used violence and threats of violence against these

women in order to coerce their continued participation in the prostitution scheme. This

testimony would have been less believable if the state were not allowed to elicit the

various ways in which appellant maintained control over them, including by using

violence. By admitting this evidence, the district court properly allowed the state “to

make out its whole case against” appellant because the charged offenses and the evidence



                                             26
of violence were “linked together in point of time or circumstances so that one cannot be

fully shown without proving the other.” Id. (quotations omitted).

       C.     Evidence that appellant stole J.M.’s inheritance money

       J.M. worked as a prostitute for appellant from 2008 to 2011, during which time

J.M. believed that she and appellant were “a couple.” In 2011, J.M. inherited over $7,000

from her father. She spent some of the money on herself, but appellant found out about

the money and forced her to give him the remaining funds.

       The record shows that appellant generally exercised complete financial control

over J.M. and the other women who worked for him as prostitutes. The state’s expert

testified that pimps make their prostitutes financially dependent upon them and that this

financial dependence ensures that the women continue to work as prostitutes.          We

conclude that the evidence of appellant’s theft of J.M.’s inheritance money was properly

admitted as immediate-episode evidence under Riddley because it was inextricably

intertwined with appellant’s ongoing control over J.M. and her submission to him as a

prostitute.

       Even if some of appellant’s claimed other-acts evidence were improperly

admitted, appellant would have the burden of showing “that the erroneous admission of

evidence created a reasonable possibility that the wrongfully admitted evidence

significantly affected the verdict.” Id. at 427 (quotation omitted). Appellant cannot make

this showing.   We have already noted that the district court provided a cautionary

instruction prior to the testimony of B.T. and K.W. and during its final instructions, and

“[w]e presume a jury follows a court’s cautionary instruction.” Id. at 428. As to the


                                           27
violence and threats of violence against Alexander and J.M., this evidence is no more

shocking or inflammatory than the evidence that he used emotional and financial control

to coerce women into continuing to have sex with strangers for money. Moreover,

significant or “overwhelming” evidence of guilt can reduce the impact of erroneously

admitted evidence, id., and there was overwhelming evidence of appellant’s guilt in this

case. Multiple women testified regarding appellant’s prostitution scheme, and the police

linked appellant’s e-mail accounts and telephones to several of his online advertisements

and corroborated the victims’ testimony by interviewing them. There is no reasonable

probability that the challenged evidence significantly affected the verdict.

       We conclude that the district court did not abuse its discretion by admitting the

testimony of two pre-2010 victims of an ongoing prostitution scheme operated by

appellant and his uncle, evidence of appellant’s acts of violence against Alexander and

J.M., and evidence of appellant’s financial control over J.M.

                                             V.

       Appellant challenges his sentence on several grounds. First, he argues that the

sentence for his conviction of count 7, conspiracy to commit second-degree sex

trafficking, must be vacated because the timeframe and conduct underlying count 7 are

entirely encompassed by the other counts of which he was convicted. The state concedes

that appellant is correct. Count 7 was sentenced first.

       Aside from exceptions that do not apply here, “if a person’s conduct constitutes

more than one offense under the laws of this state, the person may be punished for only

one of the offenses and a conviction or acquittal of any one of them is a bar to


                                             28
prosecution for any other of them.” Minn. Stat. § 609.035, subd. 1 (2010). This section

“bar[s] multiple sentences for crimes that arise from a single behavioral incident.” State

v. Bauer, 792 N.W.2d 825, 827 (Minn. 2011). “In order to determine whether two

intentional crimes are part of a single behavioral incident, we consider factors of time and

place . . . [and w]hether the segment of conduct involved was motivated by an effort to

obtain a single criminal objective.” Id. at 828 (quotation omitted). Whether multiple

sentences are permissible under section 609.035 is a question of law, which we review de

novo. State v. Ferguson, 808 N.W.2d 586, 590 (Minn. 2012).

       According to the complaint, the timeframe of the conspiracy count is from

September 1, 2010, to July 31, 2012. The other counts of which appellant was convicted

and sentenced—counts 1, 2, 3, 4, and 6—all took place within the same timeframe.

Moreover, appellant’s conduct underlying the conspiracy count “was motivated by an

effort to obtain [the same] criminal objective” as his conduct underlying the other counts,

namely, the prostitution of the victims. Bauer, 792 N.W.2d at 828. We therefore agree

with the parties that the sentence for count 7 must be vacated, and appellant must be

resentenced.

       We decline to reach appellant’s other sentencing arguments. Because we vacate

appellant’s sentence on count 7, the district court must resentence appellant on counts 1,

2, 3, 4, and 6. Accordingly, the resolution of appellant’s other sentencing arguments “is

not necessary to the disposition of appellant’s case.” State v. Vang, 847 N.W.2d 248, 265

n.9 (Minn. 2014); see also Lipka v. Minn. Sch. Emps. Ass’n, Local 1980, 550 N.W.2d




                                            29
618, 622 (Minn. 1996) (“[J]udicial restraint bids us to refrain from deciding any issue not

essential to the disposition of the particular controversy before us.”).

                                      DECISION

       We affirm appellant’s convictions because: (1) the challenged statute is not

facially overbroad; (2) there is sufficient evidence to uphold appellant’s convictions of

counts 1 and 6; (3) the district court did not commit reversible error by misstating the

accomplice-liability jury instruction; and (4) the district court did not abuse its discretion

by admitting other-acts evidence.       However, we vacate appellant’s sentence for his

conviction of count 7 and remand for resentencing on counts 1, 2, 3, 4, and 6.

       Affirmed in part, vacated in part, and remanded.




                                              30
