State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-0259

State of Minnesota,
Respondent,

vs.

Robert Curtis Dawson, Jr.,
Appellant.

Filed January 7, 2019
Affirmed
Schellhas, Judge

Ramsey County District Court
File No. 62-CR-17-3984

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

John C. Choi, Ramsey County Attorney, A dam E. Petras, Assistant County Attorney, St.
Paul, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Jessica Merz Godes, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Jesson, Presiding Judge; Halbrooks, Judge; and
Schellhas, Judge.

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U N P U B L I S H E D O P I N I O N
SCHELLHAS, Judge
Appellant challenges his conviction of aiding and abetting drive -by shooting,
arguing that the district court committed reversible error in its jury instruction regarding
the state’s burden of proof. We affirm.
FACTS
Respondent State of Minnesota charged appellant Robert Dawson, Jr., with aiding
and abetting drive-by shooting. At trial, the state presented evidence that, while stopped at
a traffic light, D.E. observed a white sedan pass her in the right lane and “an African
American male leaning out of the car window on the passenger side shooting.” According
to D.E., the “passenger was in the front seat leaning far enough out of the window, so . . .
[his] upper torso was completely out because he was able to shoot over the top of the car
into the lane in which I was in.” One of the bullets pierced the back of a vehicle in front of
D.E. and became “lodged in the [gear] shifter.” Police also recovered two spent casings
from the lane in which the white sedan had been traveling.
After the passenger in the white sedan fired three shots, the white sedan turned right
and drove past an undercover police officer “at about 50 miles an hour.” Police soon located
the white sedan in a nearby parking lot. The sedan was empty of passengers, but a black
handgun was lying on the front-passenger floorboard. A couple blocks away, officers found
three individuals, including Dawson, walking across a bridge, and a fourth individual
walking in the opposite direction. In the grass a few feet from the three individuals, police
discovered a set of car keys that operated the white sedan.

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Dawson admitted to police that he was seated in the front passenger seat of the white
sedan that was involved in the drive-by shooting but claimed that he “was asleep and awoke
to a pop.” Ballistics linked the black handgun recovered from the fron t-passenger
floorboard of the white sedan to the shooting, and DNA taken from the handgun matched
Dawson. A jury found Dawson guilty of the charged offense , and t he district court
sentenced Dawson to 48 months in prison.
This appeal follows.
D E C I S I O N
Dawson argues that the district court failed to properly instruct the jury that the state
had to prove beyond a reasonable doubt that he intentionally aided or assisted another in
committing a drive-by shooting. Because Dawson failed to object to the ju ry instructions
at trial, this court has discretion to consider his claim of error on appeal only if the district
court plainly erred . See State v. Peltier , 874 N.W.2d 792, 797 (Minn. 2016) (analyzing
unobjected-to jury instructions for plain error). The plain-error test allows us to consider a
forfeited error under Minn. R. Crim. P. 31.02 when the defendant establishes (1) an error,
(2) that is plain, and (3) that affected the defendant’s substantial rights. State v. Webster,
894 N.W.2d 782, 786 (Minn. 2017). If we conclude that any requirement of the plain-error
analysis is not satisfied, we need not consider the others. Id. If the defendant establishes all
three requirements, we “may correct the error only if it seriously affects the fairness,
integrity, or public reputation of judicial proceedings.” Id.
The district court has broad discretion to choose the language for jury instructions.
State v. Huber, 877 N.W.2d 519, 522 (Minn. 2016). We review jury instructions as a whole

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to determine whether they acc urately state the law in a manner that the jury could
understand. State v. Kelley, 855 N.W.2d 269, 274 (Minn. 2014). The jury instructions must
describe the crime charged and explain the elements of the crime. State v. Milton , 821
N.W.2d 789, 805 (Minn. 2012). “To determine if a jury instruction correctly states the law,
[an appellate court] analyze[s] the criminal statute and the case law under it.” State v.
Taylor, 869 N.W.2d 1, 15 (Minn. 2015).
“An individual 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. ’” State v. Washington -Davis, 881 N.W.2d 531, 541 (Minn.
2016) (quoting Minn. Stat. § 609.05, subd. 1 (2014)).1 The Minnesota Supreme Court has
said:
Accomplice-liability instructions must explain to the jury that
in order to find a defendant guilty as an accomplice, the jury
must find beyond a reasonable doubt that the defendant knew
his alleged accomplice was goi ng to commit a crime and the
defendant intended his presence or actions to further the
commission of that crime.

Id. (quotation omitted).

Here, the district court instructed the jury as follows:

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 prevent the crime before it was committed.

Intentional role includes, intentionally aiding, advising,
hiring, counseling, cons piring with or procuring another to
commit the crime.

1 The statute has not been amended since 2014.

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The defendant’s presence or actions constitute aiding if,
first, the defendant knew others were going to or were
committing a crime. And second, the defendant intended that
his presence or actions aided the commission of the crime.

If the defendant intentionally aided another person in
committing a crime or intentionally 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 the other crime was reasonably foreseeable to the
defendant as a probable consequence of trying to commit the
intended crime.

The defendant is guilty of a crime, however, only if the
other person commits a crime. The defendant is not criminally
liable for aiding, advising, hiring, counseling, conspiring, or
otherwise procuring the commission of a crime unless some
crime including an attempt is actually committed.

You shall apply this instruction to determine whether
the defendant aided others in committing the offense of Drive-
By Shooting.2

(Emphasis and footnote added.)
Minnesota Statutes section 609.05, subdivision 1, does not define “intentionally
aids.”
But, in Milton, the supreme court noted that “the element of ‘intentionally aiding’ includes
two important and necessary principles: (1) that the defendant ‘knew that his alleged
accomplices were going to commit a crime, ’ and (2) that the defendant ‘intended his

2 The district court’s jury instruction is taken almost verbatim from the CRIMJIG with the
exception of one deviation; in the first line of the third paragraph, the district court’s jury
instruction omits the word “intentionally” between the words “constitute” and “aiding.”
See 10 Minnesota Practice, CRIMJIG 4.01 (Supp. 2018).

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presence or actions to further the commission of that crime.’” 821 N.W.2d at 805 (quoting
State v. Mahkuk, 736 N.W.2d 675, 682 (Minn. 2007)). A district court’s failure to “explain
that the intentionally aiding element requires that the jury find beyond a r easonable doubt
that the defendant knew his alleged accomplice 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.
Relying on Huber, Dawson argues that this omission “constituted plain error
because, taken as a whole, [the jury instructions] failed to properly inform the jury that the
state had to prove beyond a reasonable doubt that Dawson intentionally aided or assisted
another in committing drive-by shooting.” In Huber, the state charged the defendant with
intentionally aiding another in the commission of second -degree intentional murder. 877
N.W.2d at 521. The instructions that the district court gave the jury “contained 13
references” to the murderer being “‘aided and abetted’” by the defendant, but omitted the
word ‘“intentionally’” every time they referred to the defendant aiding and abetting the
murderer. Id. at 523. The supreme court noted that the jury instructions “not only failed to
explain the meaning of intentionally aiding another in the commission of a crime, but they
also failed to require that the aiding and abetting be intentional when stat ing the elements
of the offense.” Id. at 525. The supreme court therefore concluded that the jury instructions
constituted plain error because they erroneously allowed the jury to convict the defendant
“for his mere presence near the commission of the crime or because his actions assisted
[the murderer] in committing a crime, regardless of [the defendant’s] mens rea.” Id.

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This case is distinguishable from Huber. In Huber, the district court used a “hybrid”
instruction that “included the theory of accomplice liability with the elements for each
substantive offense,” which conflicted w ith the supreme court’s prior encouragement that
district courts “separately instruct the jury on accomplice liability and the underlying
substantive offense, as opposed to incorporating the theory of accomplice liability into the
instructions on the eleme nts of the substantive offenses for which the defendant was
charged.” Id. at 524 n.3 (quotation omitted). In contrast here, not only were the instructions
in this case taken almost verbatim from the CRIMJIG, but the district court separately
instructed the jury on accomplice liability and drive-by shooting. And the court instructed
the jury that the state had to prove beyond a reasonable doubt that Dawson knew others
were going to commit a crime and intended his actions or presence to further the
commission of that offense. Moreover, unlike the instructions in Huber, which omitted the
word “intentionally” all 13 times the y referred to the defendant aiding and abetting the
murderer, in this case, the court instructed the jury several times that the act of aiding and
abetting had to be an intentional act.
Dawson also contends that the jury instructions were plainly erroneous because after
instructing the jury that “[y]ou shall apply this instruction to determine whether the
defendant aided others in committing the offense of Drive-By-Shooting,” the district court
instructed the jury as follows:
If the defendant advised, aided, 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 a crime.

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You are not to consider – concern yourselves rather,
with what action, if any, was taken against the other person.

Dawson claims that by including this language rather than following the direction of
CRIMJIG 4.01 and then instructing on the elements o f the offense of drive-by shooting,
the district court provided jury instructions that were confusing and materially misstated
the law. We disagree.
The above quoted language is taken verbatim from CRIMJIG 4.03, and both parties
specifically agreed to its inclusion in the jury instru ctions. Dawson now argues that the
instruction materially misstates the law because it does not include the two required
components from Milton, but those components are included in CRIMJIG 4.01, which the
court provided to the jury. Dawson presents no legal authority to support a conclusion that
the instruction materially misstates the law. We conclude that w hen read as a whole, the
jury instructions accurately stated the law. The jury instructions therefore were not plainly
erroneous.
Affirmed.