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This opinion will be unpublished and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
A17-0989

State of Minnesota,
Respondent,

vs.

Lynell Ellison,
Appellant.

Filed May 29, 2018
Affirmed
Reilly, Judge

Stearns County District Court
File No. 73-CR-16-2791

Lori Swanson, Attorney Genera l, Peter Magnuson, Assistant Attorney General, St. Paul,
Minnesota; and

Janelle Kendall, Stearns County Attorney, St. Cloud, Minnesota (for respondent)

Cathryn Middlebrook, Chief Ap pellate Public Defender, J odi Lynn Proulx, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Reilly, Pres iding Judge; Halbrooks, Judge; and
Schellhas, Judge.
U N P U B L I S H E D O P I N I O N
REILLY, Judge
Appellant challenges his convictions of ai ding and abetting first-degree aggravated
robbery and aiding and abetting second-degree assault, arguing that the jury instructions

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did not adequately explain the law and that the photo identif ication used to identify him
was impermissibly suggestive. We affirm.
FACTS
On March 22, 2016, appella nt Lynell Ellison contacted victim L.K. over the phone
to buy “a half” of marijuana, which L.K. understood to mean a half ounce. After some
initial confusion, it became clear that appellant had requested a half pound of marijuana,
and, after some negotiation, L.K. agreed to su pply it to him. L.K. and appellant arranged
to meet at L.K.’s residence to conduct the transaction. Appellant arrived with a male
companion, who also expressed an interest in buying a half pound of marijuana. L.K.
consented to the modification but said he would need some time to collect that amount of
marijuana.
Appellant and his companion returned to L.K.’s apartment about an hour later to
conduct the transaction. L.K. greeted them and went into his bedroom to retrieve the
marijuana. When he emerged from his bedroom, appellant’s companion bull rushed L.K.
and held a gun to his head. Appellant’s companion demande d that L.K. give them the
drugs and assured him that “this is real.” L.K. understood this to mean that the gun itself
was real and that the man’s threats of violence were real. Appellant began looking through
L.K.’s room to find more cash. Appellant searched through L. K.’s laundry basket,
backpack, and bed. Appellant’s companion demanded to know where L.K.’s safe was, but
L.K. did not have a safe. Appellant and his companion went through L.K.’s pockets.
Appellant carried away L.K.’s backpack and the marijuana.

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L.K. contacted police and described appellant and his companion to Officer Ryan
Sayre. L.K. described that he’d spoken with a person na med “Lionell” about purchasing
marijuana who had later robbed him. Officer Sayre thought one of the robbers might be
appellant, who was known to him, because his name, Lynell, sounded similar to “Lionell.”
Within two hours of the robbery, L.K. identified appellant in a photo lineup as the person
who robbed him. The state charged appellant with one count of aiding and abetting first-
degree aggravated robbery and one count of aiding and abetting second-degree assault.
The case proceeded to a jury trial, and the jury found appellant guilty of both counts.
This appeal followed.
D E C I S I O N
I. The jury instructions were not erroneous.

Appellant did not object to th e jury instructions at tria l , s o w e r e v i e w t h e j u r y
instructions for plain error.1 State v. Huber, 877 N.W.2d 519, 522 (Minn. 2016). To show
plain error, appellant must show (1) there was error; (2) that was plain; and (3) that the
error affected appellant’s substantial rights. Id. An error affects appellant’s substantial
rights if the absence of the error would ha ve had a significant effect on the verdict. State
v. Milton, 821 N.W.2d 789, 809 (Minn. 2012). If these three prongs are met, this court
may address the error to preserve the fairness and integrity of the judicial proceedings.
State v. Kelley, 855 N.W.2d 269, 274 (Minn. 2014).

1 Appellant challenges only the elements of “aiding and abe tting,” not the elements of
robbery or assault. See State v. Ostrem, 535 N.W.2d 916, 922 (Minn. 1995) (stating that
accomplice crimes contain elements distinct from the elements of the underlying offense).

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The district court has broad discretion to choose the language for jury instructions.
Milton, 821 N.W.2d at 805. We review jury instructions as a whole to determine whether
they accurately state the law in a manner that the jury could understand. Kelley, 855
N.W.2d at 274. The jury instructions must describe the crime ch arged and explain the
elements of the crime. Milton, 821 N.W.2d at 805. “To determine if a jury instruction
correctly states the law, we analyze the criminal statute and the case law under it.” State
v. Taylor, 869 N.W.2d 1, 15 (Minn. 2015).
In Minnesota, “[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 (2016). A defendant
may acquire the requisite knowledge and intent during the course of a criminal act, as long
as they continue to aid their accomplice. State v. Smith, 901 N.W.2d 657, 662 (Minn. App.
2017).
In a trial for a crime in volving accomplice liability, th e jury instructions must
explain that the “intentionally aiding elem ent requires that the jury find beyond a
reasonable doubt that the defe ndant knew his alleged accom plice was going to commit a
crime and the defendant intended his presence or actions to further the commission of that
crime.” Kelley, 855 N.W.2d at 275 (citing Milton, 821 N.W.2d at 808). The instructions
must also provide a definition of intent. Huber, 877 N.W.2d at 524.
The district court read to the jury the followi ng instructions for the elements of
aiding and abetting:

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I’m now going to give you an instruction on what aiding
and abetting means. The defe ndant is guilty of a crime
committed by another person when the defendant has played
an intentional role in aiding in the commission of the crime and
made no reasonable effort to prevent the crime before it was
committed.

“Intentional role” includes aiding, advising, hiring,
counseling, conspiring with, or procuring another to commit
the crime.

A defendant’s presence constitutes aiding if, first, the
defendant knew his alleged accomp lices were . . . going to or
were committing a crime, and th e defendant intended that his
presence and action aid the commission of the crime.

The district court then explained how the ju ry should apply the ju ry instructions for
accomplice liability to the instructions for the actual crimes.
The defendant is guilty of a crime, however, only if the
other person commits a crime. The defendant is not liable
criminally for aiding, advisi ng, hiring, counseling, or
conspiring, or otherwise procuring the commission of a crime,
unless some crime including an attempted crime, is actually
committed.

If the defendant aided, advi sed, hired, counseled, or
conspired with another or otherwise procured the commission
of a crime by another person, and the crime was committed,
the defendant is guilty of the crime. You are not to concern
yourselves with what action, if any, was taken against the other
person.

The instructions plainly and accurately de scribe the law of accomplice liability. The
instructions clearly state that appellant ai ded his accomplice’s crimes if he “knew his
alleged accomplices were . . . going to or were committing a cr ime, and . . . intended that
his presence and action aid the commission of the crime.” See Milton, 821 N.W.2d at 805-
06 (holding that proper accomplice liability instructions must state the defendant

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“knowingly and intentionally assisted in the commission of the crime”). The instructions
also include a definition of intent, and district courts are “afforded considerable latitude in
choosing the language to explain that element.” Smith, 901 N.W.2d at 661. The
instructions were not confusing or misleading to the jury. See id. In fact, the instructions
in this case were almost identical to the instructions given in Smith, which this court
determined were not clearly erroneous. See id. at 664. For the foregoing reasons, the
district court did not err by giving the instructions it did.
II. The district court did not abuse its discretion by failin g to suppress the
pretrial photo lineup.

Appellant argues the district court abused its discretion by admitting the pretrial
photo lineup identification because it was impermissibly suggestive, not reliable, and that
the error was not harmless. We determine that the identification was reliable in light of the
totality of the circumstances and we affirm.
We evaluate the admission of identificati on evidence for an abuse of discretion.
State v. Booker, 770 N.W.2d 161, 168 (Minn. App. 2009). Pretrial identification evidence
is evaluated under a two-pronged test. Ostrem, 535 N.W.2d at 921. First, we determine
whether the identification procedure was impermissibly suggestive. Id. An identification
procedure is impermissibly suggestive if the suspect is unfairly singled out for
identification. Id. Second, even if the identification procedure is found to be impermissibly
suggestive, the identification is admissible if the totality of the ci rcumstances show the
witness’s identification is reliable. Id. We consider five factors when determining whether
the identification is reliable in light of the totality of the circumstances: (1) the opportunity

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of the witness to view the criminal at the ti me of the crime; (2) the witness’s degree of
attention; (3) the accuracy of the witness’s prior description of the criminal; (4) the level
of certainty demonstrated by the witness at the photo display; and (5) the time between the
crime and the confrontation. Id. The identification is therefore admissible if the totality of
the circumstances demonstrates that the “i dentification has an adequate independent
origin” despite any su ggestive procedure. State v. Taylor , 594 N.W.2d 158, 161 (Minn.
1999).
In this case, appellant cites the following factors to argue that the photo lineup was
impermissibly suggestive. Appellant argues that his photograph was larger than the others,
that only two of the photographs were in colo r, that two of the photographs depicted men
without afros, and that Officer Sayre’s presentation of the lineup tainted the identification.
Even if we were to agree with appellant, we reject his argument because in this case the
totality of the circumstances show that the identification by L.K. was reliable.
Each of the factors weighs in favor of the identification’s reliability. First, L.K. had
ample opportunity to observe appellant and make an accurate identification. L.K. testified
that he encountered appellant twice, and that their first meeting was nonviolent and lasted
10 to 15 minutes.
Second, L.K. was able to pay close attenti on to appellant. During the first meeting,
he had enough time to view appellant and he could see appellant clearly in the light of his
apartment. There was no violence during the first meeting that might have prevented him
from clearly observing appellant. Though their second meeting involved violence and an

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assault with a deadly weapon, L.K. was again able to pay close attention to appellant,
because L.K. shook appellant’s hand and said a friendly hello before the violence began.
Third, L.K. provided an accu rate description of appellant to police. L.K. said that
the robber was black, had an afro, wore all black clothing and a black hat, was in his mid-
20s, and whose name was “Lionell.” L.K.’s ph ysical description was fairly generic, but
his description of appellant Lynell Ellison’s first name as “Lionell” allowed Officer Sayre
to pinpoint appellant Lynell Ellison as a possible suspect. Knowing a person’s first name
is very specific knowledge that is not s ubject to the same unreliability of visual
identification. That appellant correctly identified a person with a similar name to the one
he stated to police and whose cell phone wa s later linked to his own shows that the
identification was reliable.
Appellant concedes that fact ors four and five weigh in favor of the identification’s
reliability, because L.K. expre ssed a high degree of certainty that his identification of
appellant was correct and the identification t ook place within two hours after the robbery
occurred.
Considering the totality of the circum stances, the identification was reliable
regardless of any impermissible suggestiveness.
Affirmed.