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This opinion will be unpublished and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
A17-0945

State of Minnesota,
Respondent,

vs.

Robert John Lund,
Appellant.

Filed June 11, 2018
Affirmed
Smith, Tracy M., Judge

St. Louis County District Court
File No. 69DU-CR-16-3808

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

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

Cathryn Middlebrook, Chief Appellate Public Defender, Sara L. Martin, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Smith, Tracy M., Presiding Judge; Cleary, Chief Judge;
and Rodenberg, Judge.
U N P U B L I S H E D O P I N I O N
SMITH, TRACY M., Judge
Appellant Robert John Lund challenges his convictions for aiding and abetting
attempted second-degree murder, aiding and abetting drive-by shooting, and being a

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prohibited person in possession of a firearm, arguing there was insufficient evidence to
corroborate the accomplices’ testimony that he committed the crimes. Lund also argues,
and the state agrees, that the district court erred in sentencing him for one count of aiding
and abetting attempted second-degree murder and one count of aiding and abetting drive-
by shooting because both offenses occurred as part of the same behavioral incident.
Because the record contains sufficient corroborating evidence to restore confidence in the
accomplices’ testimony and confirm Lund’s active participation in the crimes, we affirm
Lund’s convictions. And becau se the district court did no t err in imposing multiple
sentences when one of the offenses was aiding and abetting drive-by shooting, we affirm
Lund’s sentences as well.
FACTS
This case revolves around a drive-by shooting that occurred at a home in
Hermantown, Minnesota. On September 24, 2016, P.W. was with his girlfriend, J.B., and
her friend, A.R., hanging out at “the wall” on Skyline Drive in Duluth. Denzel Perrin was
also at Skyline Drive, with fri ends in his silver car. Perrin had been involved in a fight
with P.W. the previous year. A little after 10:00 p.m., P.W., J.B., and A.R. got into their
car to return to A.R.’s home in Hermantown. Perrin, who had spotted P.W., followed the
group in his car.
The group noticed Perrin’s car, and A.R. called home to inform her family that a
silver car was following them. Her father, M. R., and brother, J.R., went out to the front
lawn of the house to wait for A.R. According to M.R. and J.R., when Perrin arrived at

3
A.R.’s home, M.R. grabbed a baseball bat and walked toward the silver car to confront its
occupants.
In response, Perrin drove away. He went to Lund’s home. Lund was the boyfriend
of Perrin’s girlfriend’s mother. Lund’s son, Devin Lund (Devin), and his friends Kewon
Dunn and Michael Roux, were also at Lund’s house when Perrin arrived. Perrin recounted
to the group what had happened in Hermantown . According to Perrin, Lund said that he
was “pissed” and had been “looking for a fight all day.” Perrin did not recall who initially
suggested returning to Hermantown, but he claimed that Lund was “amping it all up” and
told the four young men to load bats into his Suburban truck.
Once the bats were loaded , 47-year-old Lund drove the four young men to
Hermantown in his Suburban. Perrin was in the front passenger seat; Dunn, Roux, and
Devin were in the backseat. Dunn had brought a .22 caliber pistol. Perrin testified that
Dunn showed him the gun and that everyone in Lund’s car knew Dunn had a gun. Lund
testified that he did not know Dunn had a gun and would have stopped the young men from
going to Hermantown had he known.
When the group arrived at A.R.’s residence, Lund stopped his Suburban at the end
of the driveway, with the passenger side facing the house and the front-passenger window
rolled down. The victims, A.R ., J.R., M.R., and A.R.’s boyfri end, T.S., were all initially
outside the house. All of the victims recalled a truck pulling up to the end of the driveway,
several shots being fired from the truck towa rd the house, and a pause before a second
volley of shots was fired in the same direction. During this gunfire, T.S. was shot in the
leg.

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Descriptions of what happened inside the Suburban vary. Perrin testified that he
saw Lund grab the gun from Dunn and fire four or five shots out the open passenger
window in the direction of the house. Then Perrin grabbed the gun from Lund and fired at
the house another four or five times. Dunn testified that when they pulled up to the house,
Dunn handed the gun to Perrin upon Perrin’s request, but Perrin “was hesitating.” Perrin
then “passed the gun off” to Lund, who fired out the passenger-side window three or four
times while the car was stopped. Then Perrin took back the gun and fired out the same
passenger window several times while the S uburban was slowly moving away from the
house. Lund testified that, when he stopp ed the car, Perrin suddenly grabbed a gun and
began firing at the house. According to Lund, Perrin fired all the shots. In response, Lund
panicked and quickly drove away from the house.
M.R. and J.R. provided the police with a description of the truck that fired at them.
Officers located Lund’s Suburban and searched it. Du ring the search, the police found
several baseball bats inside the car, as well as a spent .22 caliber shell casing between the
passenger seat and the door. Officers had previously recovered similar .22 caliber casings
in the center of the roadway in Hermantown where the drive-by shooting had occurred.
At trial, Perrin and Dunn testified for the state in exchange for plea deals. The jury
was instructed that Perrin and Dunn we re accomplices whose testimony must be
corroborated in order to find Lund guilty base d on their testimony. The jury found Lund
guilty of four counts of aiding and abetting attempted second-degree murder, four counts
of aiding and abetting drive-by shooting, and one count of being a prohibited person in
possession of a firearm. The district court imposed concurrent sentences of 240 months

5
for the four counts of aiding and abetting attempted second -degree murder, a concurrent
117-month prison sentence for on e count of aiding and abetti ng drive-by shooting, and a
concurrent 365-day sentence for being a prohibited person in possession of a firearm.
Lund appeals.
D E C I S I O N
I. The evidence was suffic ient to corroborate the accomplice testimony.

Lund argues that the evidence is insufficient to support his convictions because the
convictions depended on accomplice testimony th at was not sufficiently corroborated.
Minnesota statute governs the use of accomplice testimony:
A conviction cannot be had upon the testimony of an
accomplice, unless it is corroborated by such other evidence as
tends to convict the defend ant of the commission of the
offense, and the corroboration is not sufficient if it merely
shows the commission of the offense or the circumstances
thereof.

Minn. Stat. § 634.04 (2016). Under the statute, “[a] defendant may not be convicted based
solely on the uncorroborated testimony of an accomplice.” State v. Lee, 683 N.W.2d 309,
314 (Minn. 2004). This rule recognizes that accomplice testimony is inherently suspect,
State v. Jackson, 746 N.W.2d 894, 898 (Minn. 2008), because an accomplice “may testify
against another in the hope of or upon a prom ise of immunity or clemency or to satisfy
other self-serving or malicious motives,” State v. Shoop , 441 N.W.2d 475, 479 (Minn.
1989).
“This court reviews the sufficiency of evidence corroborating accomplice testimony
in the light most favorable to the state, and all conflicts presented by the evidence are

6
resolved in favor of the verdict.” State v. Her, 668 N.W.2d 924, 927 (Minn. App. 2003),
review denied (Minn. Dec. 16, 2003). The burden of corroboration is met when “the
defendant is linked to the alleged crime by corroborating evidence that in some substantial
degree tends to affirm the truth of the accomp lice’s testimony and to point to the guilt of
the defendant.” State v. Clark , 755 N.W.2d 241, 253 (Minn. 2008) (quotation omitted).
“The precise quantum of co rroborative evidence needed necessarily depends on the
circumstances of each case, but corroborative evidence does not need to be sufficient to
establish a prima facie case of the defendant’s guilt or sustain a conviction.” Id. at 253-54
(quotation omitted). “[C]orroborative evidence is sufficient when it is weighty enough to
restore confidence in the truth of the accomplice’s testimony.” State v. Sorg, 275 Minn. 1,
5, 144 N.W.2d 783, 786 (1966).
Examples of corroborating evidence include “the defendant’s association with those
involved in the crime in such a way as to s uggest joint participation, as well as from the
defendant’s opportunity and motive to commit the crime and his proximity to the place
where the crime was committed.” State v. Bergeron, 452 N.W.2d 918, 924 (Minn. 1990).
“The defendant’s entire course of conduc t may be looked to for corroborating
circumstances. If his conn ection to the crime may be fairly inferred from those
circumstances, the corroboration is sufficient.” Id.
Testimony of other witnesses can restore confidence in the truth of an accomplice’s
testimony. See State v. Lemire , 315 N.W.2d 606, 610-12 (Minn. 1982). However,
accomplice testimony cannot be corroborated only by another accomplice witness. State
v. Harris, 405 N.W.2d 224, 227 (Minn. 1987). Li kewise, “[e]vidence that merely shows

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the commission of the crime or the circumstances thereof is not sufficient to corroborate
accomplice testimony.” State v. Johnson, 616 N.W.2d 720, 727 (Minn. 2000).
Accomplices Perrin and Dunn testified th at Lund aided and abetted the drive-by
shooting (and committed the related offenses of aiding and abetting attempted murder and
firearm possession) by driving the group of young men to Hermantown and firing the first
volley of gunfire at the residence. Lund argues that, because Perrin’s testimony and Dunn’s
testimony “differed significantly ” about the circumstances of Lund firing the gun, their
testimony is “particularly suspect.” Specif ically, while Perrin claimed that Dunn handed
the gun directly to Lund, Dunn testified that he initially handed the gun to Perrin and that
it was only after Perrin froze that Lund took the gun from Perrin. Lund argues that this is
a “significant inconsistency,” which suggests that Dunn and Perrin im plicated Lund to
obtain favorable plea deals.
The state points to corroborating evidence from Lund’s and the victims’ testimony.
Lund admits to being the driver of the vehicle from which the shots were fired and in which
a spent .22 caliber shell casing—matching the casings found at the crime scene—was
found. Moreover, Lund’s testimony that he observed the heated young men load baseball
bats into his Suburban and subsequently drove them back to the scene of an earlier dispute
corroborates the accomplices’ contention that Lund encouraged the young men to return to
Hermantown for a fight.
In addition, the victims’ testimony matches Dunn’s and Perrin’s description of how,
moments before shots were fired out the front-passenger window, a Suburban approached
the residence, turned around, and stopped perpendicular to the driveway with the passenger

8
side of the car facing the house. The victims consistently testified that the gunshots came
out of the front passenger window, directly next to where Lund admits he was sitting in the
driver’s seat and which he eas ily could have reached. The victims’ testimony that there
were two distinct volleys of bullets, separa ted by a pause, and that the second round of
shots occurred while the Suburban was slowly moving away, also corroborates Dunn’s and
Perrin’s consistent testimony that first Lund (t he driver), and then Perrin (the front seat
passenger), shot the gun out the front-passenge r window. Although Perrin’s and Dunn’s
versions of the shooting were not identical, the inconsistency of who initially handed Lund
the gun (Dunn versus Perrin) before he fired the first round of shots is a minor detail, and
our standard of review requires us to resolve inconsistencies in favor of the state. Her, 668
N.W.2d at 927.
Lund argues that the evidence offered to corroborate their testimony was sufficient
to “prove only that an offense occurred, not that Lund was involved.” We disagree. Lund’s
testimony establishes his proxi mity to the crime scene, th e opportunity to commit the
crimes, and his association with the persons involved in the crimes in a manner suggesting
joint participation. See Bergeron , 452 N.W.2d at 924. And the victims’ testimony
regarding the driver’s conduct and the circumstances of the gunshots likewise corroborates
the accomplices’ account of Lund’s participation. See id. Viewing the corroborating
evidence, as we must, in the light most favorable to the state, we conclude that the evidence
restores confidence in the accomplices’ te stimony and confirms Lund’s guilt in some
substantial degree. See Her, 668 N.W.2d at 927. Sufficien t evidence therefore supports
Lund’s convictions.

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II. The district court did not err by impo sing sentences for aiding and abetting
drive-by shooting and aiding and abetting attempted second-degree murder.

Lund argues that the district court erred in imposing concurrent sentences for one
count of aiding and abetting attempted second- degree murder as well as for aiding and
abetting drive-by shooting because both offenses were committed during a single
behavioral incident. The state agrees, reas oning that, since Lund re ceived a sentence for
aiding and abetting the attempted second-degree murder of J.R. (count one), he should not
have been sentenced for aiding and abetti ng the drive-by shooting involving that same
victim (count six). Although the parties agree that the district court erred, this court must
still conduct an independent inquiry. See State v. Hannuksela, 452 N.W.2d 668, 673 n.7
(Minn. 1990) (noting that it is the responsibility of appellate courts to decide cases in
accordance with the law, regardless of whether the parties choose to contest an issue).
Minn. Stat. § 609.035 (2016) generally “prohibits multiple sentences, even
concurrent sentences, for two or more offenses that were committed as part of a single
behavioral incident,” State v. Norregaard , 384 N.W.2d 449, 449 (Minn. 1986), and
contemplates that a defendant will be punished for the “m ost serious” of the offenses
arising out of a single behavioral incident, State v. Johnson , 273 Minn. 394, 399, 141
N.W.2d 517, 522 (1966). There is an exception to section 609.035 when multiple victims
are involved. See State v. Whittaker , 568 N.W.2d 440, 453 (Minn. 1997). “[C]ourts are
not prevented from giving a defendant multiple sentences for multipl e crimes arising out
of a single behavioral incident if: (1) the cr imes affect multiple victims; and (2) multiple

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sentences do not unfairly exaggerate the criminality of the defendant’s conduct.” State v.
Skipintheday, 717 N.W.2d 423, 426 (Minn. 2006).
In State v. Ferguson , the Minnesota Supreme Court affirmed sentences for eight
counts of assault as well as one count of dr ive-by shooting at or toward an occupied
building, based on the same incident. 808 N.W.2d 586, 591-92 (Minn. 2012). In that case,
the appellant had engaged a in drive-by shoo ting at a building occupied by eight people.
Id. at 588. The appell ant argued that, because the eight victims of assault were also the
victims of the drive-by shoo ting, the district court could sentence only for the drive-by
shooting offense. Id. at 589. The supreme court disagreed and affirmed sentences for all
the offenses. Id. at 592. Drawing an analogy to burglary, where “entry into a single
building occupied by three persons does not support three separate burglary convictions,”
id. at 591, the supreme court concluded that a drive-by shooting likewise does not have
particular victims, id. And because a drive- by shooting does not have particular victims,
sentencing for both drive-by shooting at or toward an occupied building and assault did not
violate the rule that “a district court may not sentence a defendant to more than one crime
for each victim.” Id. at 590. Instead, the multiple-v ictim exception pe rmitted multiple
sentences for the eight assault convictions and a separate sentence for the drive-by
shooting.
We conclude that Ferguson applies equally to a drive-by shooting at or toward a
person. A person commits felony drive-by shooting when, “while in or having just exited
from a motor vehicle, [that pers on] recklessly discharges a firearm at or toward another
motor vehicle or a building.” Minn. Stat. § 609.66 subd. 1e(a) (2016). The offense of

11
drive-by shooting is “defined in its entirety in subdivisi on 1e(a), and subdivision 1e(b)
provides for a sentence enhancement when a person, while committing a drive-by shooting,
discharges a firearm at or toward an occupied building, an occupied motor vehicle, or a
person.” State v. Hayes, 826 N.W.2d 799, 804 (Minn. 2013).
In this case, the shots were fired from L und’s car “at or toward a person.” While
Lund’s felony was therefore e ligible for an enhanced sent ence, it is still the same
underlying drive-by offense un der subdivision 1e(a) that wa s considered by the supreme
court in Ferguson. Accordingly, applying Ferguson, we conclude that Lund was properly
sentenced for one count of driv e-by shooting in add ition to his four sentences for aiding
and abetting attempted second-degree murder.
Affirmed.