State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A16-1108

State of Minnesota,
Respondent,

vs.

Jacob Lee Brock,
Appellant.

Filed May 15, 2017
Reversed and remanded
Cleary, Chief Judge

St. Louis County District Court
File No. 69VI-CR-14-1468

Lori Swanson, Attorney General, Michae l Everson, Assistant Attorney General,
St. Paul, Minnesota; and

Mark Rubin, St. Louis County Attorney, Duluth, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Pu blic Defender, Jenna Yauch-Erickson,
Assistant Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Peterson, Pr esiding Judge; Cleary, Chief Judge; and
Connolly, Judge.
U N P U B L I S H E D O P I N I O N
CLEARY, Chief Judge
On appeal from the judgmen t of conviction, appellant Jacob Lee Brock argues
that the admission of evidence of his accom plice’s guilty plea at trial was prejudicial
2
plain error requiring a new trial. Because the admission of this evidence was plain error
that affected substantial rights, and because a new trial is required to ensure the fairness,
integrity, or public reputation of judicial proceedings, we reverse and remand.
FACTS
On October 12, 2014, J.P. was walkin g his dog near his home in Virginia,
Minnesota when he saw two men. He noticed that one of the men casually looked back,
and he sensed that something was not right. J.P. walked home, put his dog in his house,
and continued to watch the men. He saw th e men approach the property of the closed
Momentive Specialty Chemi cals (Momentive) plant. The Momentive property was
fenced in, but a portion of the fence had been lying on the ground for a period of months.
J.P. saw the men approach the area where th e fence had fallen, look around, and enter
the Momentive property.
J.P. was going to call the police to report the incident, but happened to see Officer
Swenson driving nearby. He flagged down Officer Swenson and explained that two
men walked into the Momentive property and that one of the men was wearing a
backpack. Officer Swenson notified dispatch around 9:10 a.m., pulled his squad closer
to the area where J.P. reported the men had gone, and waited for back up. Around 9:12
a.m., Officer Swenson received a call from dispatch that a burglary alarm had gone off
at the Momentive property.
Although back up had not yet arrived, O fficer Swenson got out of his patrol car
and began to enter the Momen tive property to get a better view. He entered where a
3
portion of fence was lying on the ground an d saw two men on the property. Officer
Swenson instructed the men to come to him, and the me n complied. While the men
were approaching him, Offi cer Swenson noticed that one was wearing a backpack.
Officer Swenson detained both men, who were identified as Brock and M.M. He placed
the men in handcuffs and pa tted them down for officer safety. While patting down
Brock, Officer Swenson felt an item in Brock’s pocket. When Officer Swenson inquired
about the item, Brock identified it as a tool. While patting down M.M., Officer Swenson
felt a cylindrical object, which M.M. identified as a flashlight.
Another officer and a lieut enant arrived, and Brock and M.M. were placed under
arrest for trespass and burglary. Officer Swenson conducted a search incident to M.M.’s
arrest and found a flashlight in his pocket. He also found gloves, a screwdriver, a
wrench, slim-nosed vice grips, pliers, electrical tape, sc issors, a pocket knife, a metal
bar, and a propane tank in the backpack M.M. carried. Th e other officer conducted a
search incident to Brock’s arrest and found gloves, a screwdriver, and pliers on Brock’s
person.
Brock was charged with possession of bu rglary tools, third-degree burglary,
attempted third-degree burglary, and a ttempted second-degree burglary while
possessing burglary tools. On February 23, 2016, a jury trial commenced. At trial, the
4
state called several witnesses, including J.P., Officer Swenson, Momentive’s key holder
Jeffrey Hill,1 and M.M.
J.P. testified about his knowledge of th e Momentive plant, his observations of
Brock and M.M., and his involvement in contacting the police. Officer Swenson
testified that he observed Brock and M.M. on the Momentive property and described the
arrest and search of the men. Hill testified that the Momentive plant was closed in April
2008 and that the plant contains a lot of copper and is secured with a silent alarm system
that will go off only if someone attempts entry. Hill further testified that, on the date of
the incident, he was called to the plant, inspected the property with police, and found a
loading-dock door open about six inches when all of the doors should have been closed.
M.M. was the last witness called by the st ate. On direct ex amination, the state
elicited testimony from M.M. that he was a c odefendant in the case and pleaded guilty
to possession of burglary t ools in December 2014. The state asked if M.M. had
discussed, at his plea hearing, whether he or Brock had an intent to burglarize the plant,
and M.M. responded that he believed he had disclosed that he had such an intent. The
state also asked M.M., “[D]uring your plea hearing, did you implicate the defendant in
any way in this matter?” M.M. testified that he said that Brock knew that M.M. had
tools in his possession.

1 When the Momentive plan t closed, Momentive asked the manager of a trucking
company that hauled Momentive’s products to hold a key to th e plant. Although
Momentive’s key holder is not employed by Momentive, he is familiar with the
Momentive property and assists Momentive by periodically checking on the plant and
allowing others access to the plant when appropriate.
5
When asked how far he an d Brock walked to get to the Momentive property,
M.M. responded “[a] mile and a half, maybe” and agreed that they had to cross Highway
53 to get there. During his trial testimony, M.M. stated, for the fi rst time, that M.M.
borrowed a friend’s car and drove with Brock to an area near th e Momentive plant on
the date of the incident. M.M. testified that he had not previously disclosed that the men
drove to an area near the plant because no one had ever asked. He explained that when
he previously testified that he and Brock went to the Momentive property for a walk, he
meant that they walked from where they parked the car.
M.M. also testified about his relationshi p with Brock and explained that personal
problems had developed between them. M. M. testified that he broke up with his
girlfriend, who then became romantically involved with Brock. M.M. explained that he
tried to resume a relationship with the woman and that in June 2015 Brock argued with
him and threatened him. M.M. testified th at he and Brock did not have any personal
issues when he pleaded guilty to possession of burglary tools in December 2014.
M.M. testified that he wrote a letter to the county attorney’s office in January
2016. In the letter, M.M. as ked the county attorney’s o ffice for compensation for his
testimony. M.M. testified that he hope d to receive early parole and monetary
compensation to help with moving expenses. M.M.’s letter also indicated that M.M.
was willing to give full testimony on what happened and that this would likely guarantee
a conviction.
6
M.M. testified that a detective contacte d him and took an additional statement by
telephone on February 18, 2016, about one week before Brock’s trial. On cross
examination, Brock’s counsel asked M.M. how he responded when the detective asked
about the alarm going off at the plant. M.M. testified that he “[ p]robably told [the
detective] that I didn’t know at that point.” Brock’s counsel also asked M.M. whether
he had a conversation with th e county attorney on Februa ry 23, 2016, the day that
Brock’s trial commenced. M.M. responded a ffirmatively and stated that he provided
additional information at that time. M.M. te stified that this new information included
that: (1) Brock was the one to initiate going to the Momentive property; (2) the purpose
of going to the property was to look for scrap metal; and (3) he and Brock attempted to
open a door to the plant, with M.M. trying to open the door and Brock kicking the door.
On redirect, the state again asked M.M., “[H]ad you implicated the defendant in
your plea hearing?” and M.M. ag ain testified affirmatively. After the state rested, the
district court granted Brock’s motion for judgment of acquittal on third-degree burglary
because it concluded that there was insufficient evidence of entry into the building. The
defense then introduced evidence, including a certified copy of M.M.’s conviction for
possession of burglary tools.
The defense called Brock to testify. Brock explained that, on the date of the
incident, he was working on his nephew’s bicycle when he heard M.M. and his girlfriend
fighting in the alley. Brock te stified that he told M.M. th at they should go for a walk
and that he and M.M. walked to the Momentive plant. He denied that M.M. drove them
7
to an area near the Momentive property. Brock testified that M.M. did not tell him what
was in his backpack and that he did not know that M.M. planned on taking any property.
After Brock’s testimony, the defense rested.
In its closing argument and rebuttal, the state repeatedly argued that M.M. had
implicated Brock by his guilty plea. Specifically, the prosecutor asserted:
[M.M.] provided a factual basis at his plea that included an
intent to commit a burglary as well as implicated his
codefendant [Brock].
. . . .
. . . [M.M.] pleads guilty to Possession of Burglary
Tools in relation to this incident, and in that factual basis, he
implicates his codefendant [Brock].
. . . .
. . . Either [M.M.] ple[ad ed] guilty to a crime he
didn’t commit, and, at a tim e when [he] and defendant
[Brock] were friends, implicat ed him in a crime he didn’t
commit. So to believe the defense’s version of events, you’d
either have to believe that someone ple[aded] guilty and
implicated someone to somethin g that they didn’t do at a
time that they were friends, or that [M.M.] did this all by
himself.
. . . .
. . . [T]here was no testimony from [M.M.] that the
plea deal involved any requirement to implicate his
codefendant.
. . . .
. . . [M.M.] pleads guilty. And in that plea hearing,
he implicates his defendant [B rock], but doesn’t provide a
whole lot of information, but does implicate his defendant
[Brock].

The jury found Brock guilty of possession of burglary tools, attempted third-
degree burglary, and attempted second-degree burglary while possessing burglary tools.
In April 2016, the district court sentenced Brock for attempted second-degree burglary
8
while possessing burglary tools in violation of Minn. Stat. § 609.582, subd. 2(a)(4)
(2014). The district court ordered a stay of imposition for a period of three years, during
which Brock must serve 90 days in jail and comply with the requirements of his
supervised probation. Brock now challenges the judgment of conviction.
D E C I S I O N
Brock argues that the dist rict court erred by admitting evidence of M.M.’s guilty
plea as substantive evidence of Brock’s guilt. Brock did not object to the admission of
evidence of M.M.’s guilty plea at trial. Where a defenda nt fails to object to the
admission of evidence, an appellate court reviews the alleged erroneous admission under
the plain-error standard. State v. Strommen , 648 N.W.2d 681, 68 6 (Minn. 2002); see
Minn. R. Crim. P. 31.02 (providing that plain error affecting a substantial right can be
considered on appeal). Under the plain-erro r standard, the appellant must show: “(1)
error; (2) that was plain; and (3) that affected substantial rights.” Strommen, 648
N.W.2d at 686. If the three elements of th e plain-error standard are met, an appellate
court “may correct the error only if it seriously affect[s] the fairness, integrity, or public
reputation of judicial proceedings.” Id. (alteration in original) (quotation omitted).
Brock argues that the admission of evid ence of M.M.’s guilty plea constitutes
plain error. “An error is plain if it was ‘clear’ or ‘obvious.’” State v. Ramey, 721 N.W.2d
294, 302 (Minn. 2006) (quot ation omitted). Usually, plai n error is shown where the
error contravenes caselaw, a rule, or a standard of conduct. Id.
9
Generally, evidence of an accomplice’s guilty plea is not admissible to prove the
guilt of the accused. State v. Cermak , 365 N.W.2d 243, 247 (Minn. 1985); State v.
Dillon, 529 N.W.2d 387, 391 (Minn. App. 1995), remanded on other grounds , 532
N.W.2d 558 (Minn. 1995). “S uch evidence is not probative of the accused’s guilt and
may give rise to the prejudicial inference that, because the accomplice is guilty, so is the
accused.” Dillon, 529 N.W.2d at 391. However, the Minnesota Supreme Court has
recognized limited exceptions to this general rule. Evidence of an accomplice’s guilty
plea may be admitted to provide a first-hand narrative of th e events leading up to and
after the crime where the accomplice does not testify. State v. Caine, 746 N.W.2d 339,
351 (Minn. 2008); State v. Dukes, 544 N.W.2d 13, 17-18 (Minn. 1996), abrogated in
part on other grounds by , State v. Dahlin , 695 N.W.2d 588, 595 -96 (Minn. 2005).
Evidence of an accomplice’s guilty plea may also be admitted where it is introduced in
anticipation of a defense theory. See Cermak, 365 N.W.2d at 247 (“[T]he evidence was
clearly introduced in anticipation of defendant’s argument that the charges against her
were questionable because they were not filed for over 1 year after the arrest of . . . the
first of the defendants.”).
Neither party challenges the district court’s determination that M.M. is Brock’s
accomplice.2 As a result, we must determine whet her an exception to the general rule
against the admission of an accomplice’s guilty plea applies. M.M.’s guilty plea was

2 An accomplice is a person who could have been indicted and convicted for the crime
with which the accused is charged. State v. Lee, 683 N.W.2d 309, 314 (Minn. 2004).
10
not admissible for the purpose of providing a first-hand narrative of the relevant events
because M.M. testified at Brock’s trial. The state argues that evidence of M.M.’s guilty
plea was admissible because it was helpful in evaluating M.M.’s credibility and that
Brock’s defense strategy included suggesting that M.M. falsely implicated Brock out of
anger arising from the June 2015 argument. The state asserts that, because M.M.
pleaded guilty months before the argument occurred, the admission of M.M.’s plea was
used to rebut any suggestion that M.M.’s testimony at Brock’s trial was untruthful.
In effect, the state asks us to conclu de that evidence of an accomplice’s guilty
plea may be admitted in anticipation of a de fense theory that ca lls into question the
accomplice’s credibility. Howe ver, the anticipation-of-a-d efense-theory exception
recognized in Cermak cannot be interpreted so broadl y. The state can anticipate that
most, if not all, defendants will attempt to call into question the credibility of the state’s
witnesses under some theory or another. If we were to accept the state’s argument,
evidence of an accomplice’s gu ilty plea would be admissibl e in any case in which the
state called an accomplice to testify because the state could always anticipate that the
defense would suggest that the accomplice’s testimony was not cred ible. As a result,
the anticipation-of-a-defense-theory except ion would swallow the general rule of
inadmissibility. For this reason, we reject the state’s argument.3 Because no recognized

3 The state also relies on two federal cases to support its argumen t that evidence of
M.M.’s guilty plea was admissible to help the jury evaluate M.M.’s credibility. “Federal
caselaw does not bind Minnesota c ourts,” but may be persuasive. Hinkley Square
Assocs. v. Cervene, 871 N.W.2d 426, 430 (Minn. App. 2015). Here, we are unpersuaded
to follow the federal cases on which the state relies.
11
exception to the general rule against admitting evidence of an accomplice’s guilty plea
applies here, the admission of evidence of M.M.’s guilty plea was error. The error was
plain because the caselaw on this point is settled.
We must next determine whether the pl ain error affected Brock’s substantial
rights. The defendant has the heavy burden to show that the plain error affected
substantial rights. State v. Griller, 583 N.W.2d 736, 741 (Minn. 1998). “An error affects
substantial rights if the error is prejudicial ––that is, if there is a reasonable likelihood
that the error substantially affected the verdict.” Strommen, 648 N.W.2d at 688. Brock
argues that the admission of evidence of M.M .’s guilty plea was prejudicial because,
absent evidence of M.M.’s plea, whether Brock had the intent to burglarize was factually
unclear and legally complicated by inchoate liability concepts. He explains that the
evidence of M.M.’s guilty plea substantially affected the verdict because it allowed the
jury to infer Brock’s guilt from M.M.’s guilty plea.
Brock cites State v. Litzau , 650 N.W.2d 177 (Minn. 2002), in support of his
argument that the admission of evidence of M.M.’s guilty plea affected his substantial
rights. In Litzau, the supreme court reviewed the admission of an informant’s tip, which
went to the critical issue of whether Litzau knowingly possessed the drugs found in his
car. 650 N.W.2d at 184. The state used the in formant’s tip to tie L itzau to the crime,
referred to the tip’s substance in its opening remarks, elicited the substance of the tip on
examination of two officers , and argued the credibility of the informant and the
reliability of the information in its closing argument. Id. The supreme court held that
12
“[w]here the evidence was aimed at having an impact on the verdict, we cannot say that
the verdict was surely unattributable to the error.” Id.
This case presents circumstances similar to Litzau. Evidence of M.M.’s guilty
plea was erroneously admitted. This evidence went to the critical issue of Brock’s intent
to burglarize because it establis hed that M.M. testified, dur ing his plea hearing, that
M.M. had an intent to burglarize and that Brock knew that M.M. had tools in his
possession. The state used the evidence of M.M.’s plea to establish Brock’s guilt, asked
M.M. whether, during his plea hearing, he im plicated Brock, and repeatedly stressed
that M.M. implicated Brock by his guilty plea in its cl osing argument. Because the
evidence of M.M.’s guilty plea was aimed at having an impact on the verdict, we cannot
say that the verdict was surely unattributable to the error. Here, there is a reasonable
likelihood that the erroneous admission of evidence of M.M.’s guilty plea substantially
affected the verdict. For this reason, we conclude that the plain error affected substantial
rights.
Finally, we must determine whether the error seriously affected the fairness,
integrity, or public reputation of judicial proceedings. The plain-error doctrine is
discretionary and authorizes appellate cour ts to correct only particularly egregious
errors. State v. Huber, 877 N.W.2d 519, 528 (Minn. 2016). “A plain error that affects
a defendant’s substantial rights, without more, does not entitle a defendant to a new
trial.” Id. at 527. Rather, a new trial will only be granted where “the error ‘seriously
13
affect[ed] the fairness, integrity or public reputation of judicial proceedings.’”4 Griller,
583 N.W.2d at 742 (alteration in original) (quoting Johnson v. United States, 520 U.S.
461, 469, 117 S. Ct. 1544, 1550 (1997)).
Granting a new trial where the defendant’s ve rsion of events is far-fetched or
where there is overwhelming or uncontrovert ed evidence of the defendant’s guilt does
not ensure the fairness, integrity, or pub lic reputation of judi cial proceedings. Huber,
877 N.W.2d at 527. The grant of a new trial under such circumstances would be futile,
waste judicial resources, encourage litigants to abuse the judicial process, and cause
public ridicule. Id. By contrast, granting a new trial ensures the fairness, integrity, or
public reputation of judicial proceedings where the evidence of the defendant’s guilt is
not overwhelming, and where the plain error prevented the jury from fully considering
a defense theory that it might have believed. Id. at 528.

4 We note that Minnesota courts have used slightly different terms when describing the
standard that is to be applied where an appellant shows plain error affecting substantial
rights. For example, in Griller, the Minnesota Supreme Court, in one instance, stated
that an appellate court must assess “whether it should address the error to ensure fairness
and the integrity of the judicial proceedings,” but late r considered whether the “error
seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings.”
583 N.W.2d at 740, 742 (alte ration in original) (emphasis added) (quotation omitted).
These different phrasings have continued to be advanced in subsequent cases. See, e.g.,
Huber, 877 N.W.2d at 527 (“[A] new trial will only be granted when it is necessary to
ensure the fairness, integr ity, or public reputation of judicial proceedings.”); State v.
Watkins, 840 N.W.2d 21, 30-31 (Minn. 2013) (“[W]e must consider the fourth prong of
the plain-error test: whether a new trial is required to ensure the fairness, integrity, and
public reputation of judicial proceedings.”). Because the United States Supreme Court
has stated that the fourth prong of the pl ain-error test requires a court to determine
whether the “error seriously affect[s] the fa irness, integrity or public reputation of
judicial proceedings,” we apply this standard. Johnson, 520 U.S. at 469, 117 S. Ct. at
1550 (alteration in original).
14
Here, the evidence produced at trial called into question M.M.’s credibility.
M.M. testified that he and Brock had personal problems after they dated the same
woman. M.M. also testified that he wrote a letter to the county attorney’s office in
January 2016, in which he asked for compensation for his testimony and indicated that
his testimony would likely guarantee Brock’s conviction. M.M.’s testimony revealed
that he had made inconsistent statements and that he had not shared some of the details
to which he testified at Brock’s trial until shortly before, or during, the trial. Absent the
evidence of M.M.’s guilty plea , the jury might have believ ed Brock’s defense theory.
For this reason, a new trial is required to ensure the fa irness, integrity, or public
reputation of judicial proceedings.5
Reversed and remanded.

5 Brock additionally argues that the state elicited from M.M. a hearsay statement that
M.M. said, at his plea hearing, that Brock knew that M.M. had the tools. Because we
conclude that a new trial is required to ensure the fairness, integrity, or public reputation
of judicial proceedings, we do not reach this hearsay issue.
Similarly, we do not resolve the issu e of prosecutorial misconduct. Although Brock
did not specifically raise the issue of pr osecutorial misconduct, we note that the
prosecutor was bound to follow the well-settle d rule that evidence of an accomplice’s
guilty plea is generally not admissible to prove an accused’s guilt. Cermak, 365 N.W.2d
at 247; see Dillon, 529 N.W.2d at 391; see also State v. Hannuksela, 452 N.W.2d 668,
673 n.7 (Minn. 1990) (“[I]t is the responsibility of appellat e courts to decide cases in
accordance with law, and that responsibility is not to be diluted by counsel’s oversights,
lack of research, failure to specify issues or cite relevant authorities.” (quotation
omitted)). By repeatedly stressing that M.M. implicated Brock by his guilty plea, the
prosecutor improperly invited the jury to c onsider M.M.’s guilty plea as substantive
evidence of Brock’s guilt. But, because we reverse and remand on the plain-error issue,
we do not determine whether Brock would be entitled to a new trial on the basis of
prosecutorial misconduct.