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This opinion will be unpublished and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
A17-1476

State of Minnesota,
Respondent,

vs.

Matthew Raymond Smoot,
Appellant.

Filed August 13, 2018
Affirmed in part, reversed in part, and remanded
Cleary, Chief Judge

Cass County District Court
File No. 11-CR-17-427

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

Benjamin T. Lindstrom, Cass County Attorney, Walker, Minnesota (for respondent)

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

Considered and decided by Jesson, Pres iding Judge; Cleary, Chief Judge; and
Halbrooks, Judge.
U N P U B L I S H E D O P I N I O N
CLEARY, Chief Judge
A Cass County jury found appellant Matthew Raymond Smoot guilty of second-
degree burglary, third-degree burglary, receiving stolen property, and two counts of
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motor vehicle theft. Appellant argues that: (1) he is entitled to a new trial based on the
district court’s erroneous accomplice-liability jury instruction; and (2) his convictions
for third-degree burglary and receiving stolen property must be reversed as lesser-
included offenses of second-degree burglary and motor vehicle theft, respectively.
Because the jury likely found ap pellant guilty as a principal, we conclude that the jury
instruction error did not affe ct appellant’s substantial ri ghts. And while the evidence
was sufficient to support all fi ve of appellant’s convictions, the district court erred by
formally adjudicating guilt on both burgl ary convictions, the motor-vehicle-theft
conviction, as well as the receiving-stolen-property conviction. Therefore, we affirm in
part, reverse in part, and remand.
FACTS
On March 10, 2017, the Cass County Sheri ff’s Department received a report of a
break-in at a seasonal cabin and the theft of a Farmall tractor, a truck, and various other
items. Soon after, a citizen informed a sheriff’s deputy that appellant and a friend, W.A.,
were storing a tractor and a truck on the property of appellant’s mother, where appellant
was living. Later that day, two deputies we nt to the property and discovered a tractor
matching the description of the tractor stol en from the cabin. Deputies attempted to
make contact with appellant, but could not locate him. While waiting for a tow truck to
remove the tractor, deputies observed appellant crawling on the ground in the back of
the property in an attempt to flee. Appellant was apprehended and placed under arrest.
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While still at the scene, appellant provid ed a statement to the police and showed
the deputies other stolen items at the property. Appellant admitted his involvement in
the break-in and described how he and W.A. drove the vehicles from the cabin to his
mother’s property. The deputies recovered multiple stolen items—including ladders, a
chemical sprayer, and a screen door—from the garage. Deputies examined appellant’s
cell phone, which showed messages between appellant and W.A. about the presence of
police at the property, a reference to the “fa,” which police believed to be a reference to
the Farmall tractor, and instructions from W.A. to appellant to hide. The appellant was
later charged with five crimes: second- degree burglary, third-degree burglary, two
counts of motor vehicle thef t, and one count of receiving stolen property as both a
principal and as an accomplice to W.A.
At trial, the state’s evidence against appellant included photo evidence of the
tractor at his residence, an audio recordin g of his confession, the messages exchanged
between W.A. and appellant prior to his arrest, and testimony from the arresting deputy
about appellant’s statements and actions on th e day he was arrested. In his post-arrest
statement, appellant denied ransacking the cabin, but admitted that he and W.A. “broke
into” the cabin. Appellant led deputies around the garage, pointing out items stolen from
the cabin. Appellant explained how they entered the cabin and that they made two trips,
one to drive the truck to his residence and a second to drive the tractor. Appellant
admitted driving the truck back to his residence and explained that W.A. took possession
of the truck earlier that week.
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After the state rested, appellant testified on his own behalf. Prior to his testimony,
the district court admitted impeachment evidence in the form of five of appellant’s prior
felony convictions. Appellant testified that he needed a tractor for his hobby farm and
that W.A. offered to sell him a tractor for $2,000. He stated that he agreed to pay W.A.
either in cash or in exchange for a title loan on the property but that he was not going to
let money exchange hands until W.A. “provided . . . a bill of sale for the tractor.”
Appellant testified that on Ma rch 6 or 7, he and W.A. went to pick up the tractor.
Appellant testified that W.A. opened the gate on the maintenance road and entered the
service door to the garage. He testified that W.A. placed a battery in the truck in the
garage, started it with the key, and instructed appellant to drive it back to his residence.
Appellant drove the truck back to his residence, and the two returned to the cabin to get
the tractor. W.A. placed a battery in the tractor, started it with the key, and drove it back
to appellant’s residence. When W.A. di d not produce a bill of sale for the tractor,
appellant requested that the vehicles be removed from his residence. W.A. removed the
truck on March 8, but left the tractor and other stolen items in appellant’s garage. W.A.
did not come back for the tractor, and the tractor remained parked in front of appellant’s
residence until the deputies arrived. Appellant explained that he would have told law
enforcement about the purchase agreement during his post-arrest statement, but that he
was confused, emotional, and overwhelmed at the time he gave his statement to the
deputies. Appellant’s mother also testified that she and appellant agreed to purchase the
tractor from W.A. for $2,000 and that when appellant informed her that W.A. did not
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have authority to sell the tractor, she ordered them to remove it from her property. The
prosecutor established the close familial relationship between appellant and his mother
through cross-examination.
At the close of evidence, the district court gave the follo wing instruction on
accomplice liability:
The defendant is guilty of a crime committed by
another person when the defendant has played an intentional
role in aiding the commission of the crime and made no
reasonable effort to preven t the crime before it was
committed. “Intentional role” includes aiding, advising,
hiring, counseling, conspiring with, or procuring another to
commit the crime.
If the defendant intentiona lly aided another person in
committing a crime, or intent ionally advised, hired,
counseled, conspired with, or otherwise procured the other
person to commit it, the defendant is also guilty of any other
crime the other person commits while trying to commit the
intended crime, if that other crime was reasonably
foreseeable to the defendant as a probable c onsequence of
trying to commit an intended crime.
The defendant is guilty of a crime, however, only if
the other person commits a crime. The defendant is not
liable criminally for aiding, advising, . . . unless some crime
including an attempt is actually committed.

Neither party objected to the substance of the instruction. The jury returned
guilty verdicts on all five counts. The district court formally adjudicated appellant guilty
and entered convictions on all five counts. The district court sentenced appellant to 54
months on the second-degree-burglary count and to 24 months for the receiving-stolen-
property count to be served concurrently. This appeal follows.

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D E C I S I O N
I. Appellant is not entitled to a new tr ial because the district court’s plainly
erroneous accomplice-liabilit y instruction did not affect his substantial
rights.

Appellant argues that he is entitled to a new trial be cause the district court’s
accomplice-liability jury instruction “omitted the requ irement that the State prove
appellant had the requisite intent to be liable for aiding and abetting.” Because the error
did not affect appellant’s substantial rights, he is not entitled to a new trial.
We review a district court’s jury inst ructions for an abuse of discretion. State v.
Huber, 877 N.W.2d 519, 522 (Minn. 2016). District courts have “considerable latitude
in selecting jury instructions and the language of those instructions.” Id. But a district
court may not select instructions th at “materially misstate the law.” Id. Because
appellant did not object to th e accomplice-liability instruction at trial, we review the
instructions for plain error. To establish plain error, appellant must show that there was
(1) an error, (2) that is plain, and (3) that affected substantial rights. State v. Griller, 583
N.W.2d 736, 740 (Minn. 1998). “If the appellant satisfies the first three prongs of the
plain-error doctrine, we may correct the erro r only if it seriously affect[s] the fairness,
integrity, or public reputation of the judicial proceedings.” State v. Kelley, 855 N.W.2d
269, 274 (Minn. 2014) (alteration in original) (quotation omitted).
A defendant can be held liable for the crimes of another only when the defendant
“intentionally aids, advises, hires, counsels, or conspires with or otherwise procures
another to commit the crime.” Minn. Stat. § 609.05, subd. 1 (2016). “Intentionally aids”
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is not defined in the statute. But the s upreme court has held that the element of
“intentionally aiding” includes “two important and necessary princi ples: (1) that the
defendant ‘knew that his alleged accomplices were going to commit a crime,’ and (2)
that the defendant ‘intended his presence or actions to further the commission of that
crime.’” State v. Milton, 821 N.W.2d 789, 805 (Minn. 2012) (quoting State v. Mahkuk,
736 N.W.2d 675, 682 (Minn. 2007)). A district court’s fa ilure to “explain that the
intentionally aiding element requires that the jury find be yond a reasonable doubt that
the defendant knew his alleged accomplic e was going to commit a crime and the
defendant intended his presence or actions to further the commission of that crime”
constitutes plain error. Kelley, 855 N.W.2d at 275. The district court committed plain
error by failing to instruct the jury on the “intentionally aided” element of accomplice
liability.
A jury-instruction error affects a defenda nt’s substantial rights if the error was
prejudicial and affected the outcome of the case. State v. Wenthe, 865 N.W.2d 293, 299
(Minn. 2015). “An error is prejudicial if there is a reasonable likelihood that giving the
instruction in question had a significant effect on the jury’s verdict.” State v. Watkins,
840 N.W.2d 21, 28 (Minn. 2013) (quotati on omitted). An appellant bears a “heavy
burden” of proving that an erroneous jury instruction had a significant effect on the
jury’s verdict. Kelley, 855 N.W.2d at 283-84. “An e rroneous jury instruction will not
ordinarily have a significant effect on the jury’s verdict if there is considerable evidence
of the defendant’s guilt.” Id. at 283. When examining wh ether the omission of an
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element of a crime in a jury instruction was prejudicial, we must consider whether “(1)
the defendant contested the omitted elemen t and submitted evidence to support a
contrary finding, (2) the State submitted overwhelming evidence to prove that element,
and (3) the jury’s verdict nonetheless encompassed a finding on that element.” Watkins,
840 N.W.2d at 29.
While the first factor weighs in appellant ’s favor, he has faile d to establish that
the error was prejudicial or affected the ou tcome of the case. Appellant contested the
state’s evidence that he intentionally aided W.A. in the commission of the crime through
his own testimony and that of his mother, but the state’s evidence that appellant acted
as a principal to the burglary was strong. Appellant was ch arged with each of the five
offenses two ways: as a principal and as an accomplice. The state’s evidence primarily
focused on appellant as a prin cipal to the burgla ry. Law enforcement discovered the
tractor and other stolen goods after a concerned citizen informed a deputy that appellant
and W.A. were storing the stolen vehicles at appellant’s residence. Appellant exchanged
messages with W.A. about the location of the tractor while the deputies were
investigating the break-in. Appellant fled from law enfor cement when they arrived at
the property. In a custodial statement, appellant admitted his involvement in the crime
and detailed his role in the br eak-in. Appellant identified multiple stolen items in his
garage for the deputies. At trial, appellant presented a different version of events related
to his belief that he was making a legitimate purchase of the tractor and explained that
he was confused, emotional, and overwhelme d when he made his initial statement.
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Appellant’s five prior felony convictions were admitted as impeachment evidence prior
to his testimony. The jury weighed this ev idence and returned a guilty verdict on all
counts. The jury’s verdicts are consistent with the evidence esta blishing appellant’s
active involvement in the crimes and inconsistent with his testimony that he unwittingly
agreed to purchase stolen property.
The state’s case focused primarily on a ppellant’s liability as a principal.
Whatever effect the errone ous accomplice-liab ility instruction may have had was
limited only to appellant’s liability as an accomplice and would not apply to his liability
as a principal. Because the jury’s verdicts were based on the state’s primary theory that
appellant was liable as a principal, appe llant has not met the heavy burden of
establishing that there is a re asonable likelihood that givi ng the erroneous instruction
had a significant effect on the verdicts. Acco rdingly, appellant is not entitled to a new
trial because he cannot satisfy the third factor of the plain-error test.
II. The district court erre d in formally adjudicating appellant guilty of third-
degree burglary and receiving stolen property.

The jury returned guilt y verdicts on all five counts. The district court formally
adjudicated appellant guilty and entered convictions on both burglary counts and on the
motor-vehicle-theft count related to the thef t of the tractor and the receiving-stolen-
property count related to the theft of the tractor. The dist rict court imposed a sentence
on the second-degree-burglary and receivi ng-stolen-property convictions only.
Appellant and the state agree that the dist rict court erred by formally adjudicating
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appellant guilty and entering convictions on both burglary counts , the motor-vehicle-
theft count and receiving-stolen-property count.
We have consistently he ld that Minn. Stat. § 6 09.04 (2016) “b ars multiple
convictions under different sections of a criminal statute for acts committed during a
single behavioral incident.” State v. Jackson , 363 N.W.2d 758, 760 (Minn. 1985).
Third-degree burglary is a lesser-included offense of second-degree burglary. See Minn.
Stat. § 609.582, subds. 2, 3 (2016). A defe ndant “may not be conv icted of both theft
and receiving stolen property with respect to property involved in the same transaction.”
State v. Lee, 683 N.W.2d 309, 315 (Minn. 2004). The property at issue in both the theft
count and the receiving-stolen-property count was the tractor. Ap pellant cannot be
convicted of both stealing the tractor and rece iving it as stolen property. The district
court erred in formally adjudicating appellant guilty on both convictions of burglary and
on the motor-vehicle-theft and receiving-stolen-property convictions.
“The proper procedure to be followed by the [district] court when the [appellant]
is convicted on more than one charge for th e same act is for the court to adjudicate
formally and impose sentence on one count only” and “[t]he rema ining conviction(s)
should not be formally adjudicated at this time.” State v. LaTourelle, 343 N.W.2d 277,
284 (Minn. 1984). Where the district cour t errs in formally adjudicating multiple
convictions for the same behavioral incident , the proper remedy is to “remand with
instructions to the district court to vacate the formal adjudication of guilt” on the lesser-
included conviction “and to leave the guilty verdict in place on that unadjudicated
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conviction.” State v. Crockson, 854 N.W.2d 244, 248 (Minn. App. 2014), review denied
(Minn. Dec. 16, 2014).
Accordingly, we reverse and remand with instructions to the district court to:
(1) leave the guilty verdicts in place on all five convictions; (2) issue a new warrant of
commitment vacating the formal adjudications of guilt on the third-degree-burglary
conviction and the receiving-stolen-property conviction; and (3) resentence appellant on
the second-degree-burglary conviction as we ll as the motor-vehicle-theft conviction
involving the tractor.
Affirmed in part, reverse d in part, and remanded.