                        This opinion will be unpublished and
                        may not be cited except as provided by
                        Minn. Stat. § 480A.08, subd. 3 (2012).

                             STATE OF MINNESOTA
                             IN COURT OF APPEALS
                                   A13-1928

                                 State of Minnesota,
                                    Respondent,

                                         vs.

                                Timothy John Huber,
                                    Appellant.

                              Filed December 8, 2014
                                      Affirmed
                                  Chutich, Judge
                             Dissenting, Stauber, Judge

                           Kandiyohi County District Court
                               File No. 34-CR-11-817

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

Shane Baker, Kandiyohi County Attorney, Willmar, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Julie Loftus Nelson, Special
Assistant Public Defender, St. Paul, Minnesota (for appellant)

      Considered and decided by Stauber, Presiding Judge; Cleary, Chief Judge; and

Chutich, Judge.

                       UNPUBLISHED OPINION

CHUTICH, Judge

      On appeal from his conviction for aiding and abetting second-degree murder,

appellant Timothy John Huber contends, and we agree, that the district court committed
plain error by improperly instructing the jury on accomplice liability. Because Huber

cannot meet his heavy burden of showing that the error affected the outcome of his case,

and because he had a full opportunity to present his theory of the case in a vigorous and

fair adversarial trial, we nevertheless affirm Huber’s conviction.

                                          FACTS

       The facts underlying T.L.’s murder are as follows. Appellant Timothy John Huber

and his father, 80-year-old Delbert Huber, owned land in rural Kandiyohi County. Huber

occasionally performed chores at the farm of his neighbor, N.L. N.L.’s son, T.L., also

owned land adjacent to N.L.’s farm, which T.L. used for hunting. T.L. was a special

education teacher who lived in Albertville; when T.L. hunted on his land, he stayed at his

father’s farm.

       The record shows that Huber had a long-standing antipathy toward T.L. dating

back to 2005 and had been harassing him over the years. Huber believed that T.L. had

once permitted other people to hunt on the Hubers’ land, which angered him.               He

frequently accused T.L. of neglecting T.L.’s father and called T.L. and his wife “rich city

people.”

       Huber made numerous telephone calls to T.L. until T.L. sent him a letter asking

him to stop. T.L. filed a police report in 2008, claiming that Huber was harassing him by

making phone calls “at all hours.” Even though T.L. lived in Albertville, not close to the

farms in Kandiyohi County, Huber and Delbert Huber inexplicably believed that T.L.

drove to Paynesville to puncture their tires, shine lights into their house in the middle of

the night, turn lights on in the barn at 1:00 a.m., cut wires to let cattle out of the fence,


                                             2
and do “everything he could” to harass them.             Although Huber and Delbert Huber

attributed these acts to T.L., no credible evidence tied T.L. to any of these purported

events. Other evidence, including a series of letters addressed to T.L.’s father expressing

Huber’s anger and frustration with T.L., and Spreigl testimony regarding Huber’s

profanity-laced       and   threatening   interactions   with   personnel   at   the   Veterans

Administration Hospital, demonstrate that Huber reacted with anger and paranoia in

certain situations.

       On October 7, 2011, a Friday night, T.L. arrived at his father’s farm, planning to

duck hunt that weekend by himself on the farm. T.L. did not know that his father had

asked Huber to do some farm chores while T.L.’s father was out of town, and T.L. was

surprised to encounter Huber at T.L.’s father’s farm, along with a lot of Huber’s farm

equipment. T.L. asked Huber to leave several times and to remove his farm equipment,

but Huber refused. Finally, Huber, Delbert Huber, and a neighbor moved the equipment

off N.L.’s farm but the neighbor described Huber as very angry—as angry as he had ever

seen him. Huber reportedly told Delbert Huber that T.L. said he would kill them if they

returned to N.L.’s land.

       During this encounter, T.L. told Huber that T.L. would do the chores at the farm,

and he specifically instructed Huber not to return the next day. Despite this directive and

T.L.’s purported threat to kill them, Huber and Delbert Huber returned the very next

morning. Delbert Huber, who did not usually carry a gun, brought a World War I British

military rifle and ammunition and put them in the trunk of the car. The gun had been

recently oiled and was fully operational.


                                                3
       When they arrived at N.L.’s farm, no one was there. Instead of doing chores, the

Hubers drove to check on the farm equipment that they had removed from N.L.’s

property the night before. Huber told Delbert Huber that someone had turned on the

lights of the equipment and had tampered with the oil in the tractors. Huber blamed T.L.

for tampering with the tractors; evidence at trial showed, however, that the equipment

had not been vandalized. Huber also told Delbert Huber that T.L. had likely taken

Huber’s wallet and stolen $50 and that T.L. had taken tractor parts.

       After checking on the equipment, Huber and Delbert Huber returned to N.L.’s

farm. On the way, Delbert Huber instructed Huber to stop the car so that he could

retrieve the rifle from the trunk. Delbert Huber intended to force T.L. to admit that he

had stolen the wallet and the tractor parts. Huber testified that he was doing chores,

while Delbert Huber waited in the car, when T.L. returned in his pickup truck. Huber

said that T.L. was shouting and hollering at them; T.L. was not armed, but Huber testified

that T.L. and Delbert Huber engaged in a “ballroom brawl” and wrestling match; Delbert

Huber “quick ran” or walked fast to the car, retrieved the rifle, and shot T.L., killing him

with a single shot. At the time of this encounter, Delbert Huber used a walker or a

wheelchair.

       Huber testified that Delbert Huber was just trying to defend himself when he shot

T.L. Evidence at trial showed that T.L. was killed when the shot entered his left side, and

the placement of the shot suggested that T.L. was retreating to his truck when hit.

       The two men left T.L.’s body on the ground for 12 hours and did not call the

police until evening. Huber testified that he did not call the police because Delbert Huber


                                             4
had his cellular telephone, but evidence at trial showed that Huber made several

telephone calls from that phone that day. Delbert Huber stated that he shot T.L. and that

Huber did not call the police because Huber was busy that day. Huber’s two statements

to the police included contradictory statements; he claimed to have been in the barn doing

chores but later claimed that Delbert Huber had shouted at him to stay away.

       Huber was charged with aiding and abetting first-degree premeditated murder,

second-degree intentional murder, and second-degree unintentional felony murder

(murder during a second-degree assault). Delbert Huber pleaded guilty to second-degree

intentional murder. After a jury trial, the jury convicted Huber of both counts of second-

degree murder, but acquitted him of first-degree premeditated murder. On appeal, Huber

challenges the district court’s jury instruction on liability for the crimes of another.

                                      DECISION

       Huber did not object to the jury instructions at trial so we review them for plain

error. State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998). An appellant must show that

(1) there was error; (2) it was plain; and (3) his or her substantial rights were affected. Id.

If all three prongs are met, “we may correct the error only if it ‘seriously affect[s] the

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

629 N.W.2d 433, 437 (Minn. 2001) (alteration in original) (quoting Johnson v. United

States, 520 U.S. 461, 467 117 S. Ct. 1544, 1549 (1997)).

       Because the district court has broad discretion in formulating jury instructions, we

will not reverse if the “instructions overall fairly and correctly state the applicable law.”

State v. Hayes, 831 N.W.2d 546, 555 (Minn. 2013) (quotation omitted). But a jury


                                               5
instruction that fails to include or explain a required element of the crime is erroneous

and we must then determine whether the error was plain, affected the defendant’s

substantial rights, and requires correction to “ensure fairness and the integrity of the

judicial proceedings.” State v. Milton, 821 N.W.2d 789, 806–07 (Minn. 2012).

       The defendant has the burden of demonstrating that plain error occurred. State v.

Ramey, 721 N.W.2d 294, 302 (Minn. 2006). As to the third prong, whether substantial

rights were affected, a defendant bears “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. Kelley, 855 N.W.2d 269, 284 (Minn. 2014) (quoting State v.

Gomez, 721 N.W.2d 871, 880 (Minn. 2006)). We consider each prong of the plain-error

standard in turn.

       1.     Error

       Huber was charged with aiding and abetting Delbert Huber to commit first-degree

and second-degree murder. Liability for the crimes of another, or aiding and abetting,

requires the state to show, in addition to the elements of the underlying offense, that a

defendant played a “knowing role in the commission of the crime.” State v. Gates, 615

N.W.2d 331, 337 (Minn. 2000), overruled on other grounds by Crawford v. Washington,

541 U.S. 36, 124 S. Ct. 1354 (2004). To do so, the state had to prove beyond a

reasonable doubt that Huber knew Delbert Huber was going to commit a crime and that

Huber “intended his presence or actions to further the commission of that crime.” State

v. Mahkuk, 736 N.W.2d 675, 682 (Minn. 2007).




                                             6
      In Mahkuk, the supreme court concluded that the district court’s instruction that

the jury must “consider” whether the defendant knew a crime would be committed and

whether he intended to encourage or further the crime by his presence was erroneous. Id.

The supreme court stated that a jury must do more than “consider” these factors; it must

find them beyond a reasonable doubt. Id.

      Following Mahkuk, the supreme court held that a district court must include in its

jury instructions on accomplice liability that (1) the defendant knew that his alleged

accomplice was going to commit a crime, and (2) the defendant intentionally assisted in

that crime.   Milton, 821 N.W.2d at 805-06.       Although the district court in Milton

instructed the jury that it must find that the defendant “intentionally aided” his

accomplice, the supreme court concluded that the district court failed to provide an

explanation of what “intentionally aiding” meant. Id. at 807. That is, the district court

failed to instruct the jury that it had to find beyond a reasonable doubt that (1) Milton

knew his accomplices were going to commit a crime, and (2) Milton intended by his

presence to further the commission of the crime. Id. at 806.

      Here, the district court instructed the jury as follows for each of the three murder

charges:

                     Liability for Crimes of Another. 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
              or conspired with, or otherwise procured the other person to
              commit it.




                                            7
         In addition to this instruction on liability for the crimes of another, the district

court instructed the jury as follows on intent as to the crime of second-degree intentional

murder:1
                       Timothy Huber, or Delbert Huber aided and abetted by
                Timothy Huber, acted with the intent to kill [T.L.]. To find
                Timothy Huber, or Delbert Huber aided and abetted by
                Timothy Huber, had an intent to kill, you must find that
                Timothy Huber, or Delbert Huber aided and abetted by
                Timothy Huber, acted with the purpose of causing death, or
                believed that the act would have that result.

         The district court further instructed the jury that all elements of the charge must be

proved beyond a reasonable doubt. As to the charge of second-degree murder while

committing a felony, the jury was instructed that Huber, or Delbert Huber aided by

Huber, intended to commit the underlying felony offense of second-degree assault and

that this intent must be proved beyond a reasonable doubt.

         During deliberations, the jury asked for clarification about the meaning of “aiding

and abetting.” The jury instructions defined “liability for the crimes of another,” but the

instructions on the elements of the offenses used the language “aiding and abetting.” The

district court explained that “aiding and abetting” was simply a shorthand way of saying

“liability for the crimes of another.” It then reread a portion of the instruction concerning

“liability for the crimes of another.” See 10 Minnesota Practice, CRIMJIG 4.01 (2006).

         Read in conjunction, the instructions on liability for the crimes of another and the

intent element of the murder charges do not suffer from the same flaw as the Mahkuk

instruction.    The jury was instructed to find each element of the offense beyond a


1
    The district court also gave a similar instruction for first-degree murder.

                                                8
reasonable doubt, and not just to “consider” whether presence at the scene of the crime

was aiding and abetting. But these instructions do not include the additional statements

required by Milton; even though the district court gave a portion of the standard jury

instructions for “liability for the crimes of another,” the failure to explain what

“intentionally aiding” means is error. See Kelley, 855 N.W.2d at 275 (holding that, after

Milton, failure to define the phrase “intentionally aids” when giving the standard

accomplice liability jury instruction is plain error).

       The state contends nevertheless that the instructions here are similar to those found

sufficient by the supreme court in State v. Bahtuoh, 840 N.W.2d 804, 813 (Minn. 2013).

In Bahtuoh, the defendant made the same objection Huber makes here: the district court

failed to instruct the jury that the defendant must know that his accomplice planned to

commit a crime and that he intended by his presence to further the commission of the

crime. Id. at 811. The supreme court noted that the district court did not include this

language from Milton, but concluded that, as given, the instructions required the jury to

find that the defendant had a “more culpable state of mind than is required for accomplice

liability under Minnesota law.” Id. at 814.

       The Bahtuoh instruction for first-degree murder stated:

                     [T]he defendant, acting alone or intentionally aiding
              and abetting another, acted with the intent to kill [the victim].
              To find the defendant had an intent to kill, you must find that
              the defendant acted with the purpose of causing death or
              believed that the act would have that result.

Id. (emphasis omitted). The supreme court reasoned that this language did not include

the flaw in Mahkuk, in which the jury was instructed to “consider” whether the defendant


                                               9
knew a crime would be committed and whether the defendant intended to encourage

completion of the crime; this language effectively relieved the state from the burden of

proving intent. Id. at 813. Even though the Milton language was omitted, the supreme

court concluded that the requirements of Milton were satisfied because it was clear the

defendant had to play a knowing role in the commission of the crime. Id. at 814–15.

      After careful analysis, we conclude that the instructions here are not similar

enough to those in Bahtuoh to meet the requirements of Milton. Unlike Bahtuoh, where

the instructions required the jury to find that Bahtuoh himself “acted with the intent to

kill,” id. at 814, regardless of whether it found that he acted as an accomplice or

principal, the instructions provided here did not require that same intent. Moreover,

unlike Bahtuoh, where the word “intentionally” appeared directly before “aiding and

abetting,” id., the instructions here contained no such clear directive before the critical

“aiding and abetting” language.      And Bahtuoh contained additional language that

“reinforced the requirement that the jury had to find that Bahtuoh intended his actions to

further the commission of the crime.” Id.

      In sum, the challenged instructions do not include the required Milton language

that Huber knew Delbert Huber was going to commit a crime and intended his presence

or actions to further commission of the crime. Nor did the instructions contain language

that would exceed the Milton requirements or necessarily ensure that they were met, as in

Bahtuoh. Accordingly, we conclude that the jury instructions were erroneous.




                                            10
       2.      Plain error

       In considering whether the jury instructions given here were plainly erroneous, we

examine the law in existence at the time of appellate review. Kelley, 855 N.W.2d at 277.

Because Milton was decided several months before Huber’s trial, the failure to comply

with the Milton rule is plain error. See id. at 275 (concluding that failure to define the

phrase “intentionally aids” when giving the standard accomplice liability jury instruction

is plain error).

       3.      Substantial rights

       The third prong of the plain-error doctrine requires Huber to show that his

substantial rights were affected by the error.

                      The third prong, requiring that the error affect
               substantial rights, is satisfied if the error was prejudicial and
               affected the outcome of the case. The defendant bears the
               burden of persuasion on this third prong. [Appellate courts]
               consider this to be a heavy burden. [Plain error is prejudicial]
               if there is a reasonable likelihood that the giving of the
               instruction in question would have had a significant effect on
               the verdict of the jury.

Griller, 583 N.W.2d at 741 (quotation and citations omitted). In Kelley, the supreme

court analyzed this prong by noting that “[a]n 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.” 855 N.W.2d at 283–84.

       Applying these principles here, we conclude that Huber failed to meet his heavy

burden of showing that the erroneous instruction had a significant effect on the verdict of

guilty. First, the record shows that Huber directly and vigorously contested the aiding-



                                              11
and-abetting element and offered evidence to the contrary.2 Huber claimed that he was

not aware that Delbert Huber would shoot T.L., he was not present when the argument

between T.L. and Delbert Huber started, and T.L. was the aggressor and Delbert Huber

acted in self-defense.

       Second, during deliberations, the jury asked the court for a definition of “aided

and abetted.” The district court explained that aiding and abetting was older terminology

for liability for the crimes of another and read the jury instruction explaining when a

person is liable for the crimes of another. It is clear from the jury’s question that it

considered this element of the crime.

       Most critically, however, the state offered weighty and convincing evidence to

show that it was Huber, and not his father, who had a motive to kill T.L.; that Huber

knew that his father intended to commit, at the very least, second-degree assault against

T.L.; and that Huber intended, by his many actions on Friday and Saturday, to further the

commission of the crime against T.L.

       The state’s powerful evidence included these facts: (1) Huber had a lengthy

history of ill will toward T.L., which included harassing letters and phone calls;

(2) Huber was extremely angry at T.L. after T.L. told him to leave the farm and remove

2
   We note that both counsel described the specifics of aiding and abetting liability to the
jury in their closing arguments. The prosecutor stressed Huber’s active involvement in
the crime, stating that Huber is “equally responsible” for the killing because “Delbert
Huber would not have done this without the participation of the Defendant and “[b]ut for
the contributions of Timothy Huber this murder would not have happened.” The defense
stressed the knowledge that must be proved beyond a reasonable doubt: “So basically
what you’re left with is did Tim Huber aid and abet a man that he knew was going to do a
premeditated murder. Okay. That he intentionally aided somebody who he [knew] was
gonna do a premeditated murder.”

                                            12
his farm equipment; (3) Huber sought to anger Delbert Huber as well when he falsely

told Delbert Huber that T.L. had stolen money from him, damaged the farm equipment,

harassed him, and said that he was going to kill them if they returned to N.L.’s farm;

(4) Huber had been specifically instructed not to return to N.L.’s farm, but he did so

twice on the day of the murder; (5) when Huber discovered T.L. was not at the farm the

first time he arrived that morning, he left and returned again later; (6) Huber knew his

father brought a gun with him, although Delbert Huber did not usually carry a gun;

(7) Huber stopped the car so that Delbert Huber could retrieve the gun from the trunk

before they returned to the farm the second time; (8) Huber changed his description of the

shooting between his first and second interview with police; (9) Huber lied about when

the shooting occurred and the availability of his cellphone; (10) Huber and Delbert Huber

left T.L.’s body at N.L.’s farm for 12 hours before contacting police; and (11) Huber’s

testimony in general was not credible, including his description of a brawl between

Delbert Huber and T.L., his insistence that he stayed in the barn doing chores despite the

altercation and a gunshot, and his claim that he failed to report the shooting to police

because he was busy.

       This evidence was strong enough to show that Huber was not an unwitting

bystander but acted knowingly and intentionally to further his father’s crime against T.L.

Accordingly, we conclude that Huber fails to meet his heavy burden of showing that his

substantial rights were affected by the error in the jury instructions.




                                              13
       4.     Fairness and the integrity of the judicial proceedings

       Because Huber failed to satisfy this third prong of the plain-error test, we need not

consider the final requirement of plain-error analysis, whether the error “seriously

affect[s] the fairness, integrity or public reputation of judicial proceedings.” Johnson,

520 U.S. at 469–70, 117 S. Ct. at 1550 (alteration in the original) (quotation omitted); see

Griller, 583 N.W.2d at 742 (adopting analysis of Johnson). We note, however, that in

Griller, the supreme court reasoned that Griller had a complete adversarial trial and was

permitted to present his theory of self-defense, and the jury considered and rejected his

“far-fetched version of events.” 583 N.W.2d at 742. Under these circumstances, the

supreme court held that it would be “an exercise in futility and a waste of judicial

resources” to grant Griller a new trial based on an erroneous jury instruction.          Id.

Because Huber also had a complete adversarial trial and presented his theory of the case

and his defenses, and the jury was permitted to consider these defenses, we do not believe

that a new trial is necessary to ensure the fairness and the integrity of judicial

proceedings, even if Huber had successfully shown all three prongs of the plain-error

analysis.

       Affirmed.




                                            14
STAUBER, Judge (dissenting)

       I respectfully dissent. Despite the considerable latitude given to the district court

in formulating jury instructions, an instruction, when viewed in its entirety, “must fairly

and adequately explain the law of the case.” State v. Koppi, 798 N.W.2d 358, 362 (Minn.

2011). “It is well settled that jury instructions must define the crime charged and explain

the elements of the offense to the jury.” State v. Vance, 734 N.W.2d 650, 656 (Minn.

2007) (emphasis added), abrogated on other grounds by State v. Fleck, 810 N.W.2d 303

(Minn. 2012).

       When a defendant is charged with aiding and abetting another in the commission

of a crime, the state must prove “beyond a reasonable doubt that [the defendant] (1) knew

his alleged accomplice[] [was] going to commit a crime, and (2) intended his presence to

further the commission of that crime.” State v. Milton, 821 N.W.2d 789, 806 (Minn.

2012). Mere presence, failure to intervene, or failure to report a crime is not sufficient;

proof of “the ‘intentionally aiding’ element requires knowing and intentional assistance

in the underlying crime.” Id. at 807.

       The majority here agrees that the district court plainly erred by failing to instruct

the jury that Huber had to know that Delbert Huber was going to commit a crime and

intend to assist him, but then concludes that Huber fails to show that his substantial rights

were affected.   But “[a]n error affects a defendant’s substantial rights if there is a

‘reasonable likelihood’ that the error had a ‘significant effect’ on the jury’s verdict.” Id.

(quotation and citation omitted). Not only did the district court omit an explanation of an

essential element of the charged offense by failing to explain what proof is required, but


                                           DS-1
it is also clear that the jury was confused: the jury submitted a question asking for an

explanation on precisely this element of the charged offense.

       Unlike the defendant in Milton, the evidence that Huber knew Delbert Huber

would commit a crime and intentionally assisted him to do so is not overwhelming.

Huber’s statement places him in the barn doing chores during the altercation between

Delbert Huber and T.L.; the chance that the 80-year-old Delbert Huber, whom Huber left

sitting in the car, would take a World War I era rifle and attack a much younger and fitter

man after a bout of fisticuffs seems remote. On such thin evidence, we should not

assume that the lack of a proper instruction did not have a significant effect on the jury’s

verdict.    In State v. Watkins, the supreme court concluded that even though the

defendant’s defense was “questionable,” “the district court’s erroneous instruction

prevented the jury from considering [the defendant’s] primary defense in rendering its

verdict.”   840 N.W.2d 21, 31 (Minn. 2013).          The supreme court determined that

“allowing the jury to consider [his] defense will protect the fairness, integrity, and public

reputation of the judicial proceedings.” Id. When the stakes are as high as they are in

this case, we should reverse Huber’s conviction to permit a properly instructed jury to

consider the evidence.




                                           DS-2
