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This opinion will be unpublished and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
A17-0649

State of Minnesota,
Respondent,

vs.

Kevin Lawrence Johnson,
Appellant.

Filed April 9, 2018
Affirmed
Florey, Judge

Hennepin County District Court
File No. 27-CR-16-18163

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

Michael O. Freeman, Hennepin County Attorn ey, Linda K. Jenny, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Richard Schmitz, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Bratvold, Pres iding Judge; Larkin, Judge; and Florey,
Judge.
U N P U B L I S H E D O P I N I O N
FLOREY, Judge
Appellant was part of a group of housem ates who lured an unsuspecting victim to
their Minneapolis home where they kidnapped and robbed him. The victim escaped and
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led police to the other housemates who implic ated appellant in the crime. Police then
arrested and interviewed appellant where he made incriminating statements about his role
in the crime. Appellant took his case to trial and was convicted of first-degree aggravated
robbery and kidnapping. On appeal, he argue s that his conviction should be reversed
because there was insufficient corroborati on for his accomplice’s testimony and his
incriminating statements to police were not made voluntarily. We affirm.
FACTS
This case revolves around a robbery that occurred at a home in Hennepin County,
Minnesota. Approximately six people lived in this home, including appellant Kevin
Lawrence Johnson, as well as Michael Bassett—one of the accomplices to the robbery.
Prior to the robbery, Bassett bought his girlfriend—who also lived in the home—a
cell phone previously ow ned by a prostitute. The victim of the robbery in this case had
solicited sex from the prostitute in the past, but he did not know he r phone had changed
hands. So when the victim called the phone and left a message soliciting sex, Basset, his
girlfriend, and Johnson received it and made a plan to lure and rob the victim.
Bassett’s girlfriend pretended to be the prostitute and invited the victim to the home.
When the victim arrived early in the morning of May 28, 2016, Bassett’s girlfriend took
him into another room. Once the victim was inside, Bassett and Johnson entered the room;
Bassett was holding a pellet gun wrapped in bl ack tape but the vic tim did not know the
weapon was only a pellet gun. At trial, Bassett testified that Johnson was wearing a blonde,
straight, shoulder-length wig as a disguise. Th e victim would later testify that one of the
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men (Bassett) was “skinny” and the other (Johnson) was taller than the victim and
muscular. The victim would also testify that Johnson had some kind of “Bob Marley hair.”
Bassett and Johnson forced the victim to strip to his underwear to see if he had any
money. Seeing none, but finding an ATM card, the men demanded the pin number, which
the victim gave. Bassett’s girlfriend took the card and left for an ATM.
Right about this time, there was a knock at the door. Bassett gave the gun to Johnson
and left the room to answer the door, leaving the victim and Johnson alone together. At
the front door, Bassett discovere d a friend named Milan Busby. Bassett told Busby that
there was “a hostage situation” inside, and Busb y replied that he wanted “in on it.” Just
then, both men heard a commotion in the room where the victim and Johnson were.
Just after Basset left to check on the fr ont door, the victim panicked and grabbed
Johnson’s hand. A struggle ensued, and both men fell to the ground, wrestling for control
of the gun. As the two struggled, Bassett and Busby rushed in. Busby pulled out his own
real pistol and pointed it to the victim’s head, telling him to “[s]top resisting.” The victim
and Johnson stopped fighting and separated, then Johnson struck the victim in the head.
The victim started screaming so Basset, Johnson, and Bus by moved him to the
garage. There, Busby told th e victim that if he did not “shut up” Busby would “kill him
and dump him in the river.” After five to ten minutes, the men moved the victim to the
front of the house. As they moved, they me t Bassett’s girlfriend, who had just returned
from an ATM with cash acquired with the vic tim’s card. Bassett, Bassett’s girlfriend,
Busby, and Johnson split the money amongst themselves.
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The victim was allowed to put on most of his clothes around this time. He asked
for a glass of water and Bassett went inside to get one. The other accomplices also left the
area, and the victim used this opportunity to escape. He ran to a nearby police station,
leaving his shoes behind. John son took the victim’s keys and drove away in the victim’s
car.
The police quickly found video footage of Bassett’s girlfriend using the victim’s
ATM card. This information led them to the home where the robbery took place. The
victim eventually identified Bassett’s girlfr iend from the surveillance video, and police
executed a search warrant on th e home where they found the vi ctim’s shoes. The victim
was then shown photo arrays, and he was able to identify Busby, but not Bassett. The
victim was not shown an array with Johnson because the victim did not think he could
identify him. Bassett, Basse tt’s girlfriend, and Busby were all arrested. All three
implicated Johnson in the robbery.
Johnson was arrested, and a police sergeant tried to interview him the next day but
was turned away because Johnson was experiencing drug withdrawal. The sergeant waited
until the following Monday, returned and was able to interview Johnson. In that interview,
Johnson admitted to participating in the robbery, claiming that Basset and Bassett’s
girlfriend originally masterminded the robbery and that Bassett “buttered him up” into
participating by tempting him with the cash they would receive. Johnson also confirmed
details of the robbery, such as Bassett giving him the pellet gun and being in a struggle
with the victim.
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Johnson was charged with two counts of aiding and abetting aggravated robbery in
the first degree. The state eventually added a third count of aiding and abetting kidnapping.
Johnson took his case to a jury trial and was convicted on all three counts. The district
court sentenced him to 111 months in prison for the first-degree aggravated-robbery charge
and a consecutive 21 months for kidnapping. The court did not impose a sentence on the
second count of aggravated robbery. Johnson appealed.
D E C I S I O N
I. The evidence was suffici ent to corroborate the a ccomplice testimony against
Johnson.

Johnson argues that the testimony from accomplices was not sufficiently
corroborated and requests that this court vaca te his convictions. Minnesota requires that
accomplice testimony must be independently corroborated. The rule states:
A conviction cannot be had upon the testimony of an
accomplice, unless it is corroborated by such other evidence as
tends to convict the defendant of the commission of the offense,
and the corroboration is not suffi cient if it merely shows the
commission of the offense or the circumstances thereof.

Minn. Stat. § 634.04 (2016). The rule is de signed to protect against an accomplice who
“may testify against another in the hope of or upon a promise of immunity or clemency or
to satisfy other self-serving or malicious motives.” State v. Shoop, 441 N.W.2d 475, 479
(Minn. 1989).
We review the sufficiency of the evidence tending to corroborate an accomplice’s
testimony “in the light most fa vorable to the verdict.” State v. Chavarria-Cruz , 839
N.W.2d 515, 519 (Minn. 2013) (quotation omitted). “Corroborating evidence must link or
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connect the defendant to the crime. It is not necessary that it establish a prima facie case
of the defendant’s guilt.” State v. Ford , 539 N.W.2d 214, 225 (Minn. 1995).
“Corroborating evidence is suffi cient if it ‘restores conf idence in th e accomplice’s
testimony, confirming its truth and pointing to the defendant ’s guilt in some substantial
degree.’” Id. (quoting State v. Scruggs, 421 N.W.2d 707, 713 (Minn. 1988)).
Bassett and Busby each testified that John son was the third ma n involved in the
robbery. The state believes it corroborated this accomplice testimony with four pieces of
evidence: (1) the victim’s testimony that his assailant was muscular and tall, which matches
Johnson’s build; (2) the fact that Johnson lived in the house wher e the victim was
kidnapped and robbed; (3) the fact that the victim’s shoes were discovered in the basement
of the home where Johnson was known to sp end a lot of time; and (4) Johnson’s own
admissions to police that he participated in the robbery with the accomplices. Johnson’s
appeal focuses attentio n on the victim’s identification testimony and his statements to
police.
We first turn to the victim ’s identification testimony. Johnson argues that this
testimony contradicts the accomplices’ statemen ts and cannot be used as corroboration.
He emphasizes the victim’s testimony that hi s assailant had “Bob Marley hair,” but both
accomplices testified that Johnson was wearing a blonde wig during the robbery. The state
counters that even if we a ssume Johnson was wearing a wig, the record does not reveal
how much of his head was covered by it. Th e state also argues that isolating the “Bob
Marley” comment without cont ext is misleading because th e prosecutor immediately
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followed up the “Bob Marley” comment by asking if the victim meant “dreadlocks.” The
victim replied that he did not know what dreadlocks were.
We agree with the state. The record show s that the victim did not know that his
“Bob Marley” description implied a certain type of hairstyle. This means that the victim’s
description is not necessarily contradictory. This conclusion is su pported by additional
evidence in the record where the victim also described hi s assailant’s hair as “[s]hort but
like short not long short,” and mo tioned his hand to about eye le vel. This description is
also inconsistent with the typical hair style implied by the victim’s “Bob Marley” comment.
And finally, the victim was never asked whethe r his assailant was wearing a wig at trial,
something that Johnson could have cross-examined the victim about, but chose not to do.
The record convinces us that the victim’s “Bob Marley” description did not necessarily
mean that Johnson had dreadlocks and long hair in contradiction to the accomplice
testimony, as Johnson argues. Therefore, the victim’s desc ription is not necessarily
inconsistent with the accomplice testimony.
We next turn to Johnson’s own incriminating statements to police. Johnson argues
that these statements cannot be used as corroboration because he was detoxing from drugs
and alcohol at the time and was not lucid enough to give an accurate statement. Police did
try to interview Johnson just after he was ar rested, but they were turned away because
Johnson was experiencing with drawal symptoms. A sergea nt returned the following
Monday and was able to interv iew Johnson, which is when he made the incriminating
remarks. Johnson argues that he was still under the influence of drugs and alcohol, but the
sergeant testified that Johnson was “very alert,” his eyes were not bloodshot, he seemed
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awake, and overall, “looked just of a clea r mind” and not like “s omebody who had just
gotten out of three days of detox.” The sergeant also testified that Johnson appeared “well
rested,” was tracking the sergeant’s questions , and provided “direct, clear answers and
responses.”
Johnson also argues that his statements to police cannot be used as corroboration
because the interviewing sergeant fed him to o many details before the interview, which
Johnson then inserted into his responses. Johnson identifies nineteen different details that
the sergeant provided before starting the interview. The state argues that Johnson “had the
opportunity to, and in fact, did cross-examine” the sergeant about the interview techniques
and the jury was “fully apprised of the ‘trustworthiness’ of [Johnson]’s admissions.”
We review the corroborating evidence in a light that fa vors the jury’s verdict.
Chavarria-Cruz, 839 N.W.2d at 519. This corroborating evidence does not have to make
out a prima facie case against Johnson; it only needs to restore confidence in the
accomplices’ testimonies by confirming the accomplices’ truthfulness and pointing to
Johnson’s guilt in “some substantial degree.” Ford, 539 N.W.2d at 225 (quotation
omitted). Here, the victim’s description of his assailant matches Johnson’s build, Johnson
lived at the home where many of the resident s conspired together to commit the robbery,
and Johnson himself admitted to the crime during a police interview. The inconsistencies
Johnson identifies, such as th e “Bob Marley” hair description, are minor compared with
this other evidence. Additio nally, the victim’s trial tes timony implied that he did not
understand what typical “Bob Marley” hair meant, undercutting this description. We also
believe Johnson’s confession wa s not made under the haze of withdrawal symptoms, as
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evidenced by the sergeant’s testimony that Johnson seemed alert, well-rested, and was able
to track and understand what th e sergeant was saying. In li ght of this evidence and the
record, we believe the corrobo rating evidence restores conf idence in the accomplices’
testimonies and confirms Johnson’s guilt in some substantial degree.
II. The district court did no t err in its determination that Johnson’s confession
was voluntary.

Johnson next argues that the district court erred by not suppressing his incriminating
statements to police because they were made involuntarily. Johnson claims his statements
were not voluntary because he was still expe riencing drug and alcohol withdrawal which
was coupled with a previous traumatic brain injury that causes him memory defects.
“A defendant is deprived of constitutional due process of law if he is convicted on
the basis of an involuntary confession.” State v. Blom, 682 N.W.2d 578, 614 (Minn. 2004).
“[T]he state has the burden of proving voluntariness by a fair preponderance of the
evidence.” State v. Thaggard, 527 N.W.2d 804, 807 (Minn. 1995). We review the district
court’s findings for clear error and its de termination of whether a confession was
voluntarily given de novo. Id.
The appellate court is not bound by a district court’s determination of voluntariness.
Rather, the appellate court’s duty is to “independently determine, on the basis of all factual
findings that are not clearly erroneous, whether or not the confession was voluntary.” Id.
In independently determining whether a conf ession or statement was involuntary or
coerced, a reviewing court considers all re levant factors including age, maturity,
intelligence, education, experi ence, ability to comprehend, lack of or adequacy of
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warnings, length and legality of detention, nature of interroga tion, physical deprivations,
and limits on access to family and friends. Blom, 682 N.W.2d at 614.
Johnson claims that at the time of his police interview, he was experiencing a severe
lack of sleep (Johnson claimed he was up fo r 13 or 14 days), was hallucinating, and was
still detoxing from drugs and alco hol four days after his arrest . He also claims to have
suffered a previous traumatic br ain injury that affects his memory and causes auditory
hallucinations.
As discussed above, the sergeant who inte rviewed Johnson testified that Johnson
appeared normal, saying that,
[Johnson] looked very alert, hi s eyes weren’t bloodshot, he
looked very awake, he looked just of a clear mind and it didn’t
look like somebody who had just gotten out of three days of
detox and as I was gathering biographical information I was
talking to him it was very clear that he was well rested, he was
tracking my questions, I was as king him direct questions he
was giving me direct, clear answers and responses and I felt
very comfortable with moving forward with the interview.

The district court credited the sergeant’s te stimony as evidence of Johnson’s ability to
comprehend the circumstances. The court then discussed other relevant factors including
Johnson’s prior arrests and experience with the criminal-justice system. The court then
noted that the sergeant provided Johnson with adequate warnings and even told Johnson
that if any question did not make sense, Johnson could ask the sergeant for clarification—
all of which Johnson said he understood. The court also found that Johnson was 42 years
old and of sufficient maturity and intelligence.
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The district court also addressed Johnso n’s claim that he was still experiencing
withdrawal symptoms when he made the incriminating statements. The district court first
accepted that Johnson had been a methamphetami ne user in addition to other drugs and
alcohol. But it found that Johnson was arrest ed on a Thursday and was not interviewed
until the following Monday. The court found that any alcohol or other drug effects should
have purged from his system by then, and in light of the sergeant’s testimony that Johnson
did not appear to be suffering any health effe cts during the interview, the district court
concluded that any withdrawal effects did not unreasonabl y interfere with Johnson’s
voluntariness.
Lastly, the district court addressed Johns on’s claim of a previous traumatic brain
injury. The district court noted that the court file contained a forensic-evaluation report
prepared by a forensic psychologist. 1 That report noted that Johnson would sometimes
claim that he could not remember certain it ems or details, only to remember and give
detailed descriptions of those items later in the same interview. It also noted that Johnson
tested lower than people with traumatic brain injuries norma lly do, leading the examiner
to believe that Johnson was feigning his me mory deficits. The report concluded that
Johnson was “likely exaggerating his memory deficits.”
The district court then reviewed Johnso n’s interview with police and found that
Johnson demonstrated his ability to comprehend what was happening. The court discussed
its observation of similar deceptive behavior to what was discussed in the psychological

1 The report was prepared fo r the purpose of evaluating whether Johnson was competent
to proceed in a prior court case.
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report. For example, Johnson claimed that he did not remember if he used a gun during
the robbery, only to later say that the gun he used during the robbery was fake.
Based on an independent review of the reco rd, we believe the district court correctly
determined that Johnson’s statement was voluntary. See Thaggard, 527 N.W.2d at 807
(stating that appellate courts independently review whether a statement was voluntary).
Given Johnson’s age, his prior experience with the court system, the sergeant’s testimony
regarding Johnson’s mental state during the in terview, the previous psychological report
concluding that Johnson was mentally fit and prone to feigning poor mental health, and the
fact that Johnson exhibited behavior in ac cordance with that psychological report’s
findings in this case, we conclude that Jo hnson’s statements to police were voluntarily
made.
III. The district court’s jury in structions were not in error.

Johnson’s final issue is whether the district court erred in its jury instruction stating
that Johnson could be convicted of aiding and abetting if he was present and knew that his
accomplices were about to—or were in the process of—committing a crime. But this court
recently addressed this issue in the case of State v. Smith, where we held that a similar jury
instruction on the requisite knowledge was not erroneous. 901 N.W.2d 657, 663 (Minn.

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App. 2017), review denied (Minn. Nov. 14, 2017). 2 Because this issue is controlled by
Smith, we conclude that the district court’s instruction was not in error.
Affirmed.

2 Johnson included this argum ent to preserve this issue in case the Minnesota Supreme
Court grants review of Smith, but conceded that our opinion in that case was dispositive of
this issue.