State of Minnesota v. Erick Larkins

This opinion will be unpublished and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
A15-1269

State of Minnesota,
Respondent,

vs.

Erick Larkins,
Appellant.

Filed August 29, 2016
Affirmed in part, reversed in part, and remanded
Stauber, Judge

Washington County District Court
File Nos. 82-CR-14-2829; 82-CV-14-4599

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

Pete Orput, Washington County Attorney, Nicholas A. Hydukovich, Assistant County
Attorney, Stillwater, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Anders J. Erickson, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Stauber, Presiding Judge; Reyes, Judge; and Toussaint,

Judge.*

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 UNPUBLISHED OPINION

STAUBER, Judge

Appellant challenges his conviction of aiding and abetting first-degree aggravated

robbery, seeking (1) reversal of his conviction because of an erroneous jury instruction;

(2) reversal of the district court’s restitution order; and (3) vacation of a no-contact order

that was imposed as part of his sentence. We reverse and remand for the district court to

vacate the no-contact portion of appellant’s sentence, but otherwise affirm in all respects.

FACTS

On the morning of June 21, 2014, Thomas Jones entered a jewelry store in

Woodbury and approached an employee, S.J. As Jones walked into the store, S.J. saw a

police officer drive past and look into the store. Jones pulled out a revolver, pointed it at

S.J., and ordered S.J. to open a jewelry showcase, which he did. Jones then gave S.J. a

paper bag and ordered him to fill it with jewelry. While S.J. complied, another employee

came into the store but turned around and ran out. Jones then set the bag down and

ordered S.J. to get down on his knees. S.J. then heard Jones say, “uh-oh,” which S.J.

interpreted to mean that Jones was aware that police had discovered the robbery in

progress. Attempting to offer Jones a way out, S.J. told Jones that the store had a back

exit. Jones left the bag on the counter and walked toward the back of the store. Moments

later, S.J. heard a gunshot. Police later discovered Jones dead from a gunshot wound; his

revolver was underneath his body. The medical examiner determined that Jones’ death

was a suicide.

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 Appellant Erick Larkins drove Jones to the robbery site from Minneapolis and

parked at the opposite end of the strip mall from the jewelry store. Before the robbery,

Larkins walked past the jewelry store and looked inside, then went inside the nutrition

store next door but bought nothing. He then walked past the jewelry store again and

looked inside. The employee of the nutrition store testified that Larkins smelled of

marijuana and that his short visit seemed to be pretextual.

Larkins was arrested and tried before a jury on a charge of aiding and abetting

aggravated robbery. At Larkins’ trial, the state offered evidence implicating Larkins in

the robbery, including phone records showing that Larkins contacted Jones via cellphone

on the morning of the robbery and attempted to contact him three times immediately after

the robbery; cellphone records showing that Larkins remained in Woodbury after the

robbery despite claiming that he drove back to Minneapolis after Jones purportedly paid

him $15 to give him a ride to Woodbury; physical casing conduct at the jewelry store by

Larkins and Jones before the date of the robbery; Larkins’ conduct of breaking into

Jones’ apartment on the afternoon of the robbery and leaving with unknown items; and

other evidence circumstantially linking Larkins to Jones around the time of the robbery.

While instructing the jury, the district court, without objection, gave the following

instruction defining aiding and abetting:

The [d]efendant is guilty of a crime, however, only if the other
person commits a crime. The [d]efendant is not liable
criminally for aiding, advising, hiring, counseling, conspiring,
or otherwise procuring the commission of a crime unless some
crime, including an attempt, is actually committed.

(emphasis added).

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 The jury found Larkins guilty, and the district court imposed a 112-month

sentence, to be followed by issuance of a no-contact order upon Larkins’ release from

prison. The district court also issued a restitution order that required Larkins to pay

$4,250 to the victim S.J. This appeal followed.

DECISION

Jury Instructions. Appellant argues that the district court committed reversible

error by including a reference to attempted robbery within its jury instructions defining

the offense of aiding and abetting. “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 (2014).

Jones’ conduct could constitute attempted aggravated robbery if Jones merely did an “act

which [was] a substantial step toward . . . the commission of the crime,” Minn. Stat.

§ 609.17 (2014), but the aggravated robbery could constitute a completed offense if Jones

actually took personal property from another while armed. Minn. Stat. §§ 609.24 (2014)

(defining simple robbery), 609.245, subd. 1 (2014) (defining first-degree aggravated

robbery). Because appellant could be convicted of aiding and abetting only if there was

an underlying completed robbery offense committed by Jones, appellant argues that it

was error for the district court to include the reference to an attempted offense in its

instructions.

Appellant did not object at the time of trial, and this court therefore reviews the

unobjected-to instruction for plain error. State v. Gunderson, 812 N.W.2d 156, 159

(Minn. App. 2012). “Under the plain-error standard, [an appellate court] review[s] the

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jury instructions to determine whether there was error, that was plain, and that affected

[the defendant’s] substantial rights.” Id. “If the three prongs of the plain error test are

met, [the appellate court] may reverse if [it] conclude[s] that reversal is required to ensure

fairness and the integrity of the judicial proceedings.” State v. Vance, 734 N.W.2d 650,

656 (Minn. 2007).

We agree with appellant that the instruction was erroneous, and we must next

determine if the error was plain. An error is plain if it “contravenes case law, a rule, or a

standard of conduct.” State v. Ramey, 721 N.W.2d 294, 302 (Minn. 2006). Respondent

argues that the instruction given was consistent with the model instructions set forth in 10

Minnesota Practice, CRIMJIG 4.01 (2014), and therefore, although not completely

accurate, was not plainly erroneous. But there is a fundamental difference between a

completed-robbery offense and an attempted-robbery offense, which could have made the

instruction inaccurate and confusing to a jury. “When the plain language of [a] statute

conflicts with the CRIMJIG, the district court is expected to depart from the CRIMJIG

and properly instruct the jury regarding the elements of the crime.” Gunderson, 812

N.W.2d at 162. Because the district court did not follow the pertinent statute in defining

the applicable robbery offense as it related to the facts established at trial, the error was

plain.

We next consider whether the district court’s erroneous instruction affected

appellant’s substantial rights. “[A]n error affects substantial rights if there is a reasonable

likelihood that the error had a significant effect on the jury’s verdict.” Vance, 734

N.W.2d at 656; see Ramey, 721 N.W.2d at 302 (stating that the defendant bears the

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“heavy” burden of persuasion on the third prong of the plain-error test). Viewing the

instructions as a whole, we conclude that they were substantially correct and clearly

included the requirement that appellant aided and abetted a completed robbery. The

erroneous reference to “attempt” in the provision that defined aiding and abetting was

isolated and minor in relation to the instructions as a whole.

Further, because Jones’ aggravated robbery was captured on a videotape that was

admitted at trial and was witnessed by several individuals, there was strong evidence that

a completed robbery occurred. Jones walked into the jewelry store, pointed a gun at an

employee, ordered the employee to fill a bag with jewelry, held the bag containing the

jewelry, setting the bag down only after the police were about to apprehend him. While

appellant argues that Jones held the bag filled with jewelry for only about five seconds,

this duration was sufficient to prove that Jones “took” the property, which is all that is

required to establish the “taking” element of the offense. See Minn. Stat. § 609.24

(including within the definition of simple robbery the element of unlawful “taking or

carrying away” of personal property of another); State v. Burrell, 506 N.W.2d 34, 36

(Minn. App. 1993), review denied (Minn. Oct. 19, 1993) (affirming robbery conviction

that “took less than a minute” and involved robber carrying away cigarettes from a

convenience store); cf. U.S. v. Wright, 246 F.3d 1123, 1126 (8th Cir. 2001) (defining

“taking,” for purposes of federal carjacking statute, to include “acquisition by the robber

of possession, dominion or control of the property for some period of time”). Moreover,

evidence of appellant’s role in aiding and abetting the robbery was strong. His conduct

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before, during, and after the robbery clearly demonstrates his connection to Jones’s

crime.

For these reasons, appellant has failed to meet his “heavy” burden to establish a

basis for reversal of his conviction because of error in the jury instructions. The error of

embedding the attempt language in the instructions had no significant effect on the jury

verdict or on appellant’s substantial rights.

Restitution. Appellant next argues that the district court erroneously issued its

order for restitution before the 30-day statutory period for a challenge to the requested

restitution had expired. Upon a proper request for restitution made under Minn. Stat.

§ 611A.04, subd. 1(a)-(b)(2014) and sufficient evidence to support granting the request, a

district court may order an offender to pay restitution to crime victims for “out-of-pocket

losses resulting from the crime.” Id. at subd. 1(a). The restitution statute contemplates

issuance of a restitution order either at sentencing or after sentencing, and the district

court may reserve the issue of restitution if evidence to support the restitution claim is not

received before sentencing. Id.

At sentencing on May 11, 2015, the district court granted the state’s request to

continue the issue of restitution for 60 days and informed appellant that if he wished to

challenge the claimed amount of restitution, he could do so by motion. Following

sentencing, Johnson Jewelers filed an affidavit for restitution on June 12, 2015 that

claimed $1,000 for an insurance deductible, $550 for an employee’s therapy, $900 for a

“psychological resource group,” and $1,800 for “paid leave of absence.” On June 18,

2015, the Washington County Court Administrator notified appellant that an affidavit for

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restitution had been filed. In a restitution order filed on July 7, 2015, the district court

granted the state’s $4,250 restitution request. Without challenging the restitution

requested, appellant filed a notice of appeal to this court on August 7, 2015.

Appellant now argues that the district court prematurely issued the order for

restitution before the 30-day period to challenge the restitution request had expired. He

claims that the district court should not have issued the restitution order until July 18,

2015, or 30 days after he was notified of the restitution request. The restitution statute

states that “[a]n offender may challenge restitution, but must do so by requesting a

hearing within 30 days of receiving written notification of the amount of restitution

requested, or within 30 days of sentencing, whichever is later.” Minn. Stat. § 611A.045,

subd. 3(b)(2014) (emphasis added); see State v. Borg, 834 N.W.2d 194, 196 (Minn. 2013)

(setting forth procedure for an offender to challenge restitution, including

acknowledgement that under the restitution statute, the time for an offender to challenge

claimed restitution expires 30 days after the offender receives notice of the restitution

request or is sentenced, whichever is later).

“[T]he typical procedure that a defendant must follow in order to preserve a

sentencing issue for appeal is to raise the issue with the district court.” State v. Gaiovnik,

794 N.W.2d 643, 648 (Minn. 2011). In State v. Thole, this court stated, “Under the plain

language of the [restitution] statute, a valid dispute arises only after an offender meets the

threshold burden of raising a specific objection by affidavit.” 614 N.W.2d 231, 235

(Minn. App. 2000). By failing to contest the claimed amount of restitution within 30

days as required by the restitution statute, appellant waived his right to challenge

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restitution. See Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996) (stating that an

appellate court will generally not consider matters not argued to and considered by the

district court); Mason v. State, 652 N.W.2d 269, 272-73 (Minn. App. 2002) (stating that a

district court’s failure to inform an offender of the 30-day period for challenging a claim

for restitution did not excuse the offender’s failure to comply with the rule), review

denied (Minn. Dec. 30, 2002).

Sentence. Appellant claims, and respondent agrees, that the district court erred by

imposing as part of appellant’s sentence a no-contact order to be issued upon his release

from prison. “[A] district court may not impose a no-contact order as part of an executed

sentence unless the order is expressly authorized by statute.” State v. Pugh, 753 N.W.2d

308, 311 (Minn. App. 2008), review denied (Minn. Sept. 23, 2008). While no-contact-

type orders are allowed by statute in domestic-abuse crimes, see, e.g. Minn. Stat.

§ 518B.01, subd. 4 (2014), no statute permits the issuance of a no-contact order in

conjunction with the crime of robbery. Because of this error, we reverse and direct the

district court on remand to vacate the no-contact order portion of appellant’s sentence.

See Pugh, 753 N.W.2d at 311 (vacating no-contact order imposed as part of sentence for

first-degree criminal sexual conduct).

Affirmed in part, reversed in part, and remanded.

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