                           This opinion will be unpublished and
                           may not be cited except as provided by
                           Minn. Stat. § 480A.08, subd. 3 (2014).

                                STATE OF MINNESOTA
                                IN COURT OF APPEALS
                                      A15-0541

                                    State of Minnesota,
                                       Respondent,

                                             vs.

                                  Shawn Deangelo Jones,
                                       Appellant.

                                   Filed March 21, 2016
                                         Affirmed
                                       Hooten, Judge

                               Ramsey County District Court
                                 File No. 62-CR-14-4139

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

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

Cathryn Middlebrook, Chief Appellate Public Defender, Jennifer Workman Jesness,
Assistant Public Defender, St. Paul, Minnesota (for appellant)

         Considered and decided by Larkin, Presiding Judge; Rodenberg, Judge; and Hooten,

Judge.

                          UNPUBLISHED OPINION

HOOTEN, Judge

         Appellant challenges his conviction of aiding and abetting simple robbery, arguing

that (1) his conviction was not supported by sufficient evidence; (2) the district court
abused its discretion by admitting evidence of prior crimes and photographs of a weapon;

and (3) the prosecutor committed prosecutorial misconduct. We affirm.

                                          FACTS

       On the evening of June 7, 2014, J.F. picked up two of his friends, Deangelo Wilson

and appellant Shawn Deangelo Jones, in his vehicle. J.F. also agreed to pick up another

individual, Deandre Robinson, who was not known to J.F. When J.F. asked Jones about

Robinson, Jones assured J.F. that he “didn’t have to question who [Jones] brought around.”

The four of them went to J.F.’s residence to hang out.

       Around midnight, Wilson drove the group to a gas station in J.F.’s vehicle. Upon

arriving, Robinson went inside the gas station, approached the victim, D.L., and offered to

sell him marijuana. After D.L. agreed, Robinson and D.L. exited the gas station and got in

the vehicle.

       Wilson was in the driver’s seat of the vehicle, with J.F. sitting in the front passenger

seat. D.L. was seated in the middle of the backseat with Jones and Robinson on either side.

What happened inside the vehicle is disputed, but when D.L. got out of the vehicle, he was

missing his earrings, watch, phone, and cash. D.L. then went to a restaurant and reported

to police that he had been robbed.

       After D.L. exited the vehicle, Wilson, J.F., Robinson, and Jones drove away from

the gas station together. The group dropped off Robinson and returned to J.F.’s residence.

Around 2:30 a.m., J.F. drove Jones and Wilson home, but on the way there his vehicle was

stopped by police who were investigating the robbery reported by D.L. After a search of

the vehicle, the police discovered D.L.’s cell phone on the floor of the front passenger seat,


                                              2
where Jones had been sitting, and also discovered that Jones was wearing D.L.’s watch.

Jones, along with Wilson and J.F., was arrested at the scene. Approximately one month

later, a search warrant was issued for a search of Robinson’s residence, and police found a

gun and marijuana. Robinson was arrested and charged in connection with the robbery,

and Jones was charged with aiding and abetting first-degree aggravated robbery and aiding

and abetting simple robbery.

       At trial, the jury heard several different versions of what occurred inside the vehicle

during the robbery. J.F. testified that when D.L. initially entered his vehicle, he heard a

baggy opening and Robinson saying, “[H]ere you go.” In response, D.L. said, “[I]t’s not

what it’s supposed to be,” and Robinson and D.L. began arguing. Robinson then demanded

D.L.’s belongings. When J.F., who was sitting in the front passenger seat, briefly turned

around, he saw D.L. taking his earrings out of his ears. J.F. testified that to his knowledge

there were no guns in the car. According to J.F., Jones was laughing at the beginning of

the robbery, and when D.L. asked for help, Jones responded, “He’s a grown man, I can’t

do nothing about this.” Jones then said, “Make sure you run his pockets.” J.F. testified

that after Robinson was dropped off, Jones put on a watch that was left in the backseat,

commenting that he had received a free watch.

       Officer Matthew Sweeney, the police officer who took D.L.’s report of the robbery,

testified that D.L. had told him that the two men in the backseat of the vehicle had pointed

guns at him and demanded his belongings.

       Another officer, Sergeant Thomas Arnold, who later returned some of D.L.’s

belongings to him, testified that D.L. stated he was robbed at gunpoint by both occupants


                                              3
of the backseat. D.L. told Sergeant Arnold that Jones put a gun to his side, said “run your

pockets,” and removed his watch from his wrist. D.L. told Sergeant Arnold that both Jones

and Robinson went through his pockets. Sergeant Arnold stated that when he showed D.L.

a photo of the gun recovered after Robinson’s arrest, D.L. said that he thought the gun was

one of the guns used in the robbery. Sergeant Arnold testified that when he spoke with

D.L. a few days before trial, D.L.’s statement was consistent with his first statement.

       At trial, however, D.L. testified that only Robinson pulled a gun on him when he

entered the vehicle to purchase marijuana and that it was Robinson who took off his watch

and told him to take off his earrings. D.L. testified that he heard other people in the vehicle

say, “Don’t do that.” D.L. denied feeling a gun on the left side of his body, where Jones

was seated, and denied telling the police that Jones was the one who removed his

watch. D.L. denied seeing Jones with a gun during the robbery. At trial, when he was

shown a picture of the gun recovered after Robinson’s arrest, D.L. stated that it did not

look like the gun used in the robbery.

       Finally, Jones testified that he remembered D.L. getting in the vehicle and talking

to Robinson, but that he was in a “liquor coma” and was “in [his] own world.” Jones denied

that he or Robinson had a gun and denied touching or speaking with D.L. Jones testified

that after D.L. left, Robinson said that he sold drugs to D.L. in exchange for some of D.L.’s

belongings. Jones testified that Robinson gave him D.L.’s watch because Robinson owed

him money.

       The jury found Jones guilty of aiding and abetting simple robbery, but found him

not guilty of aiding and abetting first-degree aggravated robbery. This appeal followed.


                                              4
                                     DECISION

                                             I.

       Jones argues that the evidence was insufficient to prove that he intentionally aided

Robinson in robbing D.L. “In reviewing a sufficiency of the evidence challenge, we review

the record 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).

       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 (2012). “‘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) (2012). In determining

whether a defendant possessed the requisite state of mind for accomplice liability, the jury

may consider circumstantial evidence, “including the defendant’s presence at the scene of

the crime, a close association with the principal offender before and after the crime, a lack

of objection or surprise under the circumstances, and flight from the scene of the crime

with the principal offender.” State v. McAllister, 862 N.W.2d 49, 53 (Minn. 2015).

       Because intent is a state of mind, it is generally proven through circumstantial

evidence. State v. Essex, 838 N.W.2d 805, 809 (Minn. App. 2013), review denied (Minn.

Jan. 21, 2014). Compared to a conviction based on direct evidence, “[a] conviction based

on circumstantial evidence . . . warrants heightened scrutiny.” State v. Al-Naseer, 788


                                             5
N.W.2d 469, 473 (Minn. 2010). The heightened scrutiny comes in the form of a two-step

analysis. State v. Silvernail, 831 N.W.2d 594, 598 (Minn. 2013).

         Under the first step of the circumstantial evidence test, we consider 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 in this case are as follows. Around midnight on

June 7, 2014, Wilson drove J.F., Robinson, and Jones to a gas station. Upon entering the

gas station, Robinson approached D.L. and offered to sell him marijuana, and D.L. agreed

and got into the backseat of the vehicle. D.L. was in the middle of the backseat, with

Robinson and Jones on either side. Robinson demanded D.L.’s belongings, and D.L.

removed his earrings from his ears. During the beginning of the robbery, Jones was

laughing, and when D.L. asked for help, Jones replied, “He’s a grown man, I can’t do

nothing about this.” Jones also told Robinson, “Make sure you run his pockets.” When

D.L. exited the vehicle, he was missing his watch, phone, earrings, and cash. The group

dropped Robinson off, and shortly thereafter Jones found a watch on the backseat,

commented that he had just received a free watch, and put it on. When the vehicle was

stopped by police later that night, they found D.L.’s phone on the floor of the front

passenger seat, where Jones had been sitting, and discovered that Jones was wearing D.L.’s

watch.


                                             6
       “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).    Unlike the deference given to the verdict in determining the

circumstances proved, “[w]e give no deference to the fact finder’s choice between

reasonable inferences.” Id. (quotation omitted).

       In order to prove that Jones was guilty of aiding and abetting simple robbery, the

state had to prove beyond a reasonable doubt that Jones (1) “knew his alleged accomplice[]

[was] going to commit a crime, and . . . (2) he intended his presence and actions to further

the commission of that crime.” State v. Milton, 821 N.W.2d 789, 805 (Minn. 2012). Jones

argues that because Robinson made a “split second decision” to rob D.L., he could not have

had knowledge that Robinson was going to commit a crime, as required under Milton. But,

the Minnesota Supreme Court has held that even if a defendant did not know beforehand

that a crime was about to be committed, it may be inferred “that he acquired such

knowledge” as events unfolded. McAllister, 862 N.W.2d at 55.

       Jones’ alternative hypothesis that he “did not want to be involved in the crime and

had no intention to aid Robinson” is unreasonable in light of the circumstances proved.

The evidence shows that Jones was actively involved in the robbery by blocking D.L.’s

exit, refusing to help D.L., and stating, “Make sure you run his pockets.” And, after the

robbery, Jones left the scene with Robinson and put on D.L.’s watch. When viewed in its

totality, the circumstantial evidence supports Jones’ conviction and is inconsistent with any

rational hypothesis except that of guilt. The evidence is therefore sufficient to affirm his

conviction.


                                             7
                                             II.

       Jones argues that the district court abused its discretion by admitting evidence of his

prior aggravated robbery convictions. The district court admitted evidence of two prior

convictions, which stemmed from an incident that occurred on June 14, 2010, when Jones

and three other individuals, including Robinson, went to a basketball court. The group

began gambling with another group of individuals they did not know by wagering money

on basketball shots, which is a crime under Minn. Stat. § 609.755(1) (2008). After losing

money to the other group, Jones became angry and left the scene in order to acquire a gun.

Upon returning to the basketball court, Jones held a gun on the other individuals while

Robinson and another accomplice removed two of the victims’ belongings, including cash

and a cell phone. After being arrested for this offense, Jones pleaded guilty to two counts

of aggravated robbery.

       The admissibility of evidence of other bad acts, known as Spreigl evidence, lies

within the discretion of the district court and its admission will not be reversed absent a

clear abuse of discretion. State v. Spaeth, 552 N.W.2d 187, 189 n.2, 193 (Minn. 1996); see

State v. Spreigl, 272 Minn. 488, 490, 139 N.W.2d 167, 169 (1965). Evidence of the

defendant’s other bad acts is not admissible to prove that the defendant acted in conformity

with his character. Minn. R. Evid. 404(b). But, such evidence may be admissible for

another purpose, including “proof of motive, opportunity, intent, preparation, plan,

knowledge, identity, or absence of mistake or accident.” Id. District courts must follow a

five-step process in determining the admissibility of Spreigl evidence:




                                              8
              (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 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.

State v. Ness, 707 N.W.2d 676, 685–86 (Minn. 2006).               Jones challenges only the

application of the fourth and fifth steps.

Relevance and Materiality

       First, Jones argues that the district court erred by failing to identify the precise

disputed facts to which the Spreigl evidence was relevant. “In assessing the probative

value and need for the evidence, the district court must identify the precise disputed fact to

which the Spreigl evidence would be relevant.” Ness, 707 N.W.2d at 686 (quotation

omitted). The district court did not state on the record the precise disputed fact to which

the evidence of the other crimes was relevant. But, the state had represented that the Spreigl

evidence was necessary in order to prove the disputed facts of whether Jones robbed the

victim and whether he possessed a firearm. In response to the state’s identification of these

disputed facts, the district court implicitly acknowledged the identified dispute by

admitting the Spreigl evidence.

       Jones also argues that the Spreigl evidence was not relevant. The state’s purpose

for introducing the Spreigl evidence was to show a common scheme or plan. “[T]he

common scheme or plan exception includes evidence only of offenses that have a marked

similarity in modus operandi to the charged offense.” Id. at 688 (quotation omitted). The

relevance of the evidence is determined by “focus[ing] on the closeness of the relationship


                                              9
between the other crimes and the charged crimes in terms of time, place, and modus

operandi.” Id. at 688–89 (quotations omitted). “[T]he closer the relationship between the

other acts and the charged offense, in terms of time, place, or modus operandi, the greater

the relevance and probative value of the other-acts evidence and the lesser the likelihood

that the evidence will be used for an improper purpose.” Id. at 688. The Minnesota

Supreme Court has held that Spreigl evidence is admissible under the common scheme

exception “to establish that the conduct on which the charged offense was based actually

occurred or to refute the defendant’s contention that the victim’s testimony was a

fabrication or a mistake in perception.” Id.

       Jones argues that his prior crimes are not relevant to the disputed issues in this case

because the prior crimes were not committed in a markedly similar way to the charged

offenses. We disagree. The prior crimes were markedly similar to the charged crimes.

The prior crimes were aggravated robberies, while the charged crimes were aiding and

abetting aggravated robbery and aiding and abetting simple robbery. The prior crimes

involved Jones holding multiple victims at gunpoint while his friends, including Robinson,

relieved the victims of their belongings. The charged crimes here allegedly involved Jones

and Robinson holding the victim at gunpoint and robbing him of his belongings. The prior

crimes and the charged crimes both involved Jones and his acquaintances robbing people

whom they did not know, allegedly using firearms.1 True, the prior crimes involved a


1
  Jones argues that the charged crimes were different than the prior crimes because Jones
did not possess a gun in the charged crimes. But, Jones’ possession of a gun was a disputed
fact at trial, and the state presented evidence that Jones possessed a gun during the robbery.
While the jury found Jones not guilty of aggravated robbery, this acquittal does not change

                                               10
robbery that occurred outside, while the charged crimes occurred within the confines of a

private vehicle. And, as Jones points out, in the prior crimes Jones left the basketball court

to acquire a firearm and robbed the victims upon his return approximately 11 to 12 minutes

later, while no such lapse in time occurred here. But, the prior crimes and the charged

crimes both involved Jones, Robinson, and some of their acquaintances approaching

strangers, agreeing to engage in an illegal pursuit with them, and then robbing the victims,

allegedly with firearms, when the pursuit did not go as planned.

       The prior crimes here took place almost exactly four years before the charged crime.

“[T]he more distant the Spreigl act is in terms of time, the greater the similarities as to

place and modus operandi must be to retain relevance.” State v. Wright, 719 N.W.2d 910,

918 (Minn. 2006) (quotation omitted). But, Spreigl acts that are more distant in time may

still be relevant if “the defendant spent a significant part of that time incarcerated and was

thus incapacitated from committing crimes.” Id. (quotation omitted). Jones was sentenced

to 68 months in prison for his prior aggravated robberies, was imprisoned until March 27,

2014, and committed the charged crimes approximately ten weeks after his release from

prison. Because the prior crimes were markedly similar in time and modus operandi to the

charged crimes, the prior aggravated robberies are relevant to show a common scheme.

Probative Value versus Potential Prejudice

       Jones also argues that the “minimal” probative value of the Spreigl evidence was

substantially outweighed by its prejudicial effect. In determining whether the evidence’s


the fact that Jones was alleged to have possessed a gun during the robbery at the time that
the district court ruled that the Spreigl evidence was admissible.

                                             11
probative value outweighs its prejudicial impact, we balance the relevance of the evidence

and “the [s]tate’s need to strengthen weak or inadequate proof” against the risk that the

evidence will be used as propensity evidence. State v. Fardan, 773 N.W.2d 303, 319

(Minn. 2009). Spreigl evidence may be needed because “it is not clear that the jury will

believe the state’s other evidence bearing on the disputed issue.” Ness, 707 N.W.2d at 690

(quotation omitted). “Prior bad act evidence can be unfairly prejudicial if it is used by the

jury for an improper purpose, such as proof of a defendant’s propensity to commit the

charged offense or general propensity for violence.” State v. Scruggs, 822 N.W.2d 631,

644 (Minn. 2012).

       In terms of probative value, the central issues in this case were whether a robbery

occurred and whether a firearm was used to rob the victim. Jones asserted that a robbery

did not occur and that, if a robbery did occur, he was unaware of it and was uninvolved.

The Spreigl evidence had significant probative value in light of the state’s need to refute

Jones’ contention that no robbery took place or that he was unaware of the robbery and

D.L.’s testimony at trial that Jones was uninvolved with the robbery. In terms of prejudice,

because the district court read a cautionary instruction to the jury immediately before the

state presented its Spreigl evidence and once again before the jury started deliberating, the

probability that the jury would give undue weight to the Spreigl evidence was lessened.

State v. Kennedy, 585 N.W.2d 385, 392 (Minn. 1998). Therefore, we conclude that the

district court did not abuse its discretion in determining that the probative value of the

Spreigl evidence outweighed its prejudicial impact.

                                            III.


                                             12
       Jones argues that the district court abused its discretion by admitting into evidence

two photographs of the gun that was recovered from the residence where Robinson was

arrested. Jones’ attorney objected to the admission of the photographs, arguing that they

were not relevant and were unduly prejudicial. We review a district court’s evidentiary

ruling for an abuse of discretion. State v. Bolstad, 686 N.W.2d 531, 541 (Minn. 2004).

       Generally, relevant evidence is admissible. Minn. R. Evid. 402. Relevant evidence

is “evidence having 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. Relevant evidence “may be excluded if its probative

value is substantially outweighed by the danger of unfair prejudice.” Minn. R. Evid. 403.

       Jones contends that the photographs were irrelevant because they did not help the

jury determine whether he committed the robbery. But, the gun was relevant to the charge

of aiding and abetting aggravated robbery, which requires that a perpetrator be “armed with

a dangerous weapon or any article used or fashioned in a manner to lead the victim to

reasonably believe it to be a dangerous weapon.” Minn. Stat. § 609.245 (2012). And, as

the prosecutor noted in her closing argument, the state had to prove that someone at the

scene of the crime had a gun in order for the jury to convict Jones of aiding and abetting

aggravated robbery.

       Jones argues that the recovered gun was a different type of gun than the gun that

D.L. testified was used in the robbery. Sergeant Arnold testified, however, that before trial,

D.L. stated, when shown one of the photographs, that he thought the photograph showed

the gun used by Robinson in the robbery. Jones notes that the photographs are of a gun


                                             13
found at the residence where Robinson was arrested a month after the robbery, arguing that

the time between the recovery of the gun and the robbery is too distant for the gun to be

relevant, citing State v. Daniels, 361 N.W.2d 819, 828 (Minn. 1985). But, while the

supreme court in Daniels upheld the exclusion from evidence of photographs of a crime

scene taken 14 months after the crime, id., here the gun was located only one month after

the robbery. Because the use of a dangerous weapon was central to the charge of the aiding

and abetting aggravated robbery, the photographs of the gun recovered at the residence

where Robinson was arrested were relevant.

       Jones also claims that the photographs were unfairly prejudicial, arguing that the

photographs “painted [him] as someone who associated with a violent criminal.” The

presence of a gun, however, was an element of one of the charged offenses, Minn. Stat.

§ 609.245, and the jury had already heard the state’s theory of Jones’ conduct through

opening statements and the testimony of J.F., D.L., and Officer Sweeney. We conclude

that the probative value of the photographs was not substantially outweighed by the danger

of unfair prejudice. Therefore, the district court did not abuse its discretion by admitting

the photographs of the gun into evidence.

                                             IV.

       Finally, in his pro se supplemental brief, Jones argues that the prosecutor engaged

in multiple incidents of misconduct at trial. Specifically, Jones argues that the prosecutor’s

references to Robinson during the trial constituted prosecutorial misconduct because

Robinson was in the courtroom.




                                             14
       We review claims of prosecutorial misconduct, to which there was no objection at

trial, for plain error. State v. Ramey, 721 N.W.2d 294, 299 (Minn. 2006). The defendant

has the burden to show that there was error and that the error was plain. Id. at 302. The

burden then shifts to the state to show that the misconduct did not affect the defendant’s

substantial rights. Id. We review claims of prosecutorial misconduct, to which there was

an objection at trial, under “a harmless-error test, the application of which varies based on

the severity of the misconduct.” State v. Carridine, 812 N.W.2d 130, 150 (Minn. 2012).

       First, Jones claims that the prosecutor committed misconduct by pointing out that

Robinson was in the courtroom. During the testimony of Sergeant Arnold, the prosecutor

asked the officer if he recognized anyone in the gallery of the courtroom. When Sergeant

Arnold responded affirmatively, the prosecutor asked whom he recognized.             Before

Sergeant Arnold could testify that Robinson was in the courtroom, defense counsel

objected to the relevance of the question, and the district court sustained the objection.

Because the jury never heard that Robinson was present in the courtroom, there was no

error here.

       Next, Jones notes that Sergeant Arnold pointed out Robinson a number of times

while describing the events shown on the surveillance tape of the gas station and argues

that this was “irrelevant and highly prejudicial.” Sergeant Arnold, however, pointed out

the movements of all of the individuals involved. Furthermore, Robinson’s actions were

highly relevant because the state alleged that Jones aided and abetted Robinson in

committing the robbery.




                                             15
       Jones argues that he did not receive a fair trial because the prosecutor implied to the

jury that because Robinson had been convicted in connection with the robbery, Jones was

guilty as well. The prosecutor asked Sergeant Arnold whether he was familiar with the

fact that both Robinson and Wilson were charged in this case and that both of them were

convicted, and the sergeant responded affirmatively to both questions. Defense counsel

did not object. The prosecutor made no mention of Robinson and Wilson’s convictions in

closing arguments.

       Because Jones did not object to the reference to the convictions of his co-defendants,

we review for plain error. Ramey, 721 N.W.2d at 299. “An error is plain if it is clear and

obvious . . . .” State v. Matthews, 779 N.W.2d 543, 548 (Minn. 2010).

       As a general rule, “evidence of a plea of guilty, conviction or acquittal of an

accomplice of the accused is not admissible to prove the guilt or lack of guilt of the

accused.” State v. Cermak, 365 N.W.2d 243, 247 (Minn. 1985). But, the admission of

such evidence is not automatically barred. In Cermak, at trial a police officer referred to

the fact that three other defendants had been charged and convicted as a result of the same

investigation. Id. After acknowledging that such evidence is usually not admissible, the

supreme court held that the admission of the evidence was not erroneous because “the

evidence was clearly introduced in anticipation of defendant’s argument that the charges

against her were questionable.” Id. Here, like in Cermak, the testimony regarding the other

defendants’ convictions seems to have been elicited in order to rebut the defense argument

that no robbery had occurred, as defense counsel had argued in his opening statement.




                                             16
Therefore, there was no error in eliciting the testimony that Jones’ co-defendants had been

convicted.

       Jones argues that the jury saw Robinson in the courtroom and convicted him based

on guilt by association. The trial was a public hearing, however, and Robinson had the

right to attend the trial.

       Finally, Jones argues that “the judge never told the jury to disregard . . . the

prosecutor[ial] misconduct.”    But, as already discussed, there was no prosecutorial

misconduct in this case.

       Affirmed.




                                            17
