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This opinion will be unpublished and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
A18-0425

State of Minnesota,
Respondent,

vs.

Sharmarke Sahal Musse,
Appellant.

Filed April 8, 2019
Affirmed
Rodenberg, Judge

Hennepin County District Court
File No. 27-CR-17-16250

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Michael O. Freeman, Hennepin Coun ty Attorney, Linda K. Jenny, A ssistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Chang Y. Lau, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Halbrooks, Presiding Judge; Rodenber g, Judge; and
Smith, John, Judge.


 Retired judge of the Minnesota Court of Appeals, serving by app ointment pursuant to
Minn. Const. art. VI, § 10.

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U N P U B L I S H E D O P I N I O N
RODENBERG, Judge
In this direct appeal from his conviction for aiding and abett ing first-degree
aggravated robbery, appellant Sharmarke Musse argues that the district court plainly erred
by admitting prior bad-act evidence and that the district court failed to properly instruct the
jury concerning the state’s burden of proof concerning accomplice liability. We affirm.
FACTS
J.B., who made money by shoplifting and selling stolen goods to fences (a colloquial
term for people who buy stolen goods), was robbed on June 26, 2017. J.B. and appellant,
who J.B. identified as “Shark,” were acquaintances. J.B. testified at trial that the two had
engaged in “a couple of business dealings” concerning “one of m y specialties, in
shoplifting.” J.B. testified that, no more than two weeks befo re the robbery, he met with
appellant and some of appellant’s friends. The purpose of this meeting was to discuss a
sale of fragrances and small electronic items. J.B. testified that he arrived to the meeting
with a duffle bag containing the items to be sold. Appellant t ook the bag saying that he
was going to “bring this to the guy in the truck and show him,” but appellant did not return
after he went around the corner.
J.B. said that, after this incident, he spoke with appellant b y phone, and appellant
told him he would make it up to him. Appellant asked J.B. how much money he had on
him, and offered to sell J.B. a “really nice” cell phone. J.B. offered to buy it for $185
because he needed a new cell p hone. Appellant arrived at J.B.’ s apartment building and
asked J.B. to get in a nearby car where another man was sitting in the driver’s seat. J.B.

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refused because he felt it was unsafe, so he and appellant walked down Park Avenue with
the driver of the car following t hem. J.B. testified that when he and appellant walked
around the corner, two men jumped out of another car. Appellan t then grabbed J.B. from
behind and held a utility knife to his neck. J.B. testified th at one of the men reached into
his back pocket and grabbed his wallet, and he began to fight back. J.B. was cut. The men
took J.B.’s wallet, removed the money ($16), and threw the wallet at J.B.
J.B. walked back to his apartmen t where he encountered M.W., t he apartment-
building security guard. M.W. testified at trial that he notic ed J.B. bleeding heavily from
his hands, and J.B. asked for some rags. M.W. said that he did not have any rags and was
going to call an ambulance. According to M.W., J.B. asked him not to call police. M.W.
said that he was not calling police and was going to call an ambulance. M.W. testified that
he would not allow J.B. to go to his room and J.B. repeatedly a sked him not to call an
ambulance. M.W. called 911 and relayed that J.B. had told him that a man had attacked
him with a box cutter.
When Officer Barlow arrived at the apartment, he found fire-department personnel
attending to J.B., who had severe wounds and was bleeding from his hands. J.B. informed
Officer Barlow that he did not wish to speak to a uniformed pol ice officer in front of the
building. When an ambulance arrived a few moments later, the t wo moved into the back
of the ambulance to speak privately. Officer Barlow testified at trial that J.B. told him that
he had been robbed at knifepoint by Shark. J.B. informed him that Shark took the money
out of his wallet and returned the wallet to him. Officer Barlow described J.B. as speaking

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very quickly and that he “wasn’t at a normal state of mind at that time, possibly adrenaline
was still going through him.”
While the two were in the ambulance, J.B. received a phone call . He told Officer
Barlow that it was from Shark. Officer Barlow could not hear t he conversation, and J.B.
would not tell him what Shark was saying. After the call, the ambulance took J.B. to a
hospital.
Sergeant Ali was assigned to inv estigate the alleged assault an d robbery. He
interviewed J.B., who said that he was robbed at knifepoint by Shark after he arranged to
buy a cell phone, that appellant arrived at his apartment, that the two walked down the
street and another vehicle pulled up next to them, and that two men came out of that car
and began talking to J.B. Appe llant then put a knife to J.B.’s neck and robbed him.
Another man assisted by taking J.B.’s wallet and money. J.B. t old Sergeant Ali that this
was the second time appellant had “ripped him off.”
J.B. provided police with a phone number that police verified w as connected to
appellant, and J.B. identified appellant in a photo lineup. Sergeant Ali viewed surveillance
footage from a building near where the robbery occurred, and testified at trial that two men
got out of a car and approached J.B. and appellant behind the b uilding, off-camera.
Sergeant Ali testified that the video evidence corroborated J.B.’s version of events and his
description of appellant.
At trial, the jury was provided with a transcript of and heard a recording of Sergeant
Ali’s interview of appellant. A fter appellant claimed he did n ot know J.B., Sergeant Ali
showed appellant a picture of J.B. and appellant said he knows who J.B. is. Appellant

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acknowledged that his nickname is Shark, told Sergeant Ali that he received a call from
J.B., but denied ever going to J.B.’s apartment building. Appellant denied robbing J.B.
Appellant testified at trial and acknowledged meeting J.B. on the night of the alleged
robbery. Appellant testified that he met with J.B. because J.B. wanted to buy drugs. When
J.B. did not have enough money, one of appellant’s friends pulled out the blade. Appellant
said he told his friend that J.B. is also his friend, but the f riend nevertheless took J.B.’s
wallet. Appellant testified that he called J.B. after the incident to see if J.B. was okay and
to ask how much money was taken from him. Appellant acknowledg ed that he lied to
Sergeant Ali during the interview about not having been at J.B.’s apartment because he did
not want to admit having been part of an attempted drug deal.
The jury found appellant guilty o f two counts of aiding and abe tting aggravated
robbery, but acquitted appellant of aiding and abetting second- degree assault with a
dangerous weapon. Appellant moved posttrial for a new trial, arguing that the district court
erred by not instructing the jury on the state’s burden to prove accomplice liability beyond
a reasonable doubt. The district court denied appellant’s motion.
This appeal followed.
D E C I S I O N
I. The district court did not plainly err by admitting evidence of appellant’s prior
theft.

Appellant argues that the district court plainly erred by allowing the state to present
J.B.’s testimony that appellant s tole merchandise from him appr oximately two weeks
before the incident charged in the complaint. There was no obj ection at trial. Failure to

6
object to the admission of evidence generally results in a waiv er of the right to challenge
the admission of that evidence on appeal. State v. Martinez, 725 N.W.2d 733, 738 (Minn.
2007). An appellate court may review and correct an unobjected -to alleged error only if
there is (1) error; (2) that is plain; and (3) the error affects the defendant’s substantial rights.
State v. Griller , 583 N.W.2d 736, 740 (Minn. 1998). If the error is plain and affects
defendant’s substantial rights, appellate courts may correct th e error only if it seriously
affects the fairness, integrity, or public reputation of judicial proceedings. Id. at 742.
“An error is plain if it is clear or obvious, which is typically established if the error
contravenes case law, a rule, or a standard of conduct.” State v. Webster, 894 N.W.2d 782,
787 (Minn. 2017) (quotation omitted). Generally, “evidence showing that the accused has
committed another crime unrelated to the crime for which he or she is on trial is
inadmissible because it is not competent to prove one crime by proving another.” State v.
Nunn, 561 N.W.2d 902, 907 (Minn. 1997). Evidence of prior bad acts is inadmissible
except where the evidence fits w ithin a specific exception, suc h as immediate-episode
evidence, which is a narrow excep tion to the general character- evidence rule. State v.
Riddley, 776 N.W.2d 419, 424-25 (Minn. 2009).
The state argues that evidence of the prior theft is admissible as immediate-episode
evidence.1 The supreme court has explained that the general rule against admitting other-

1 As an initial matter, this evidence was not introduced as Spreigl evidence and neither
party contends that it was. Spreigl notice is not required where evidence of the other bad
act is part of the immediate episode out of which the charges a rose. State v. Leecy, 294
N.W.2d 280, 282 (Minn. 1980); see also State v. Kendell , 723 N.W.2d 597, 608 (Minn.
2006) (“Immediate episode evidence is a separate category from evidence of other bad acts

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crime evidence should not necessa rily preclude the state from m aking out its whole case
against the accused based on evidence that may be otherwise relevant to the accused’s guilt
of the crime charged.
[W]here two or more offenses are linked together in point of
time or circumstances so that one cannot be fully show without
proving the other, or where evidence of other crimes
constitutes part of the res gestae, it is admissible. . . . Su ch
evidence may be considered only for the purpose for which it
is sought to be introduced, regardless of the fact that it may
incidentally show commission of some other offense. Such
evidence, however, must show a casual relation or connection
between the two acts so that they may reasonably be said to be
part of one transaction.

State v. Wofford, 114 N.W.2d 267, 271-72 (1962). The supreme court has address ed the
exception for immediate-episode e vidence several times since Wofford, with the
underlying theme being relativel y c l e a r : t h e s t a t e m a y p r o v e all relevant facts and
circumstances which tend to establish any of the elements of th e offense with which the
accused is charged, even though such facts and circumstances may prove or tend to prove
that the defendant also committed other crimes. Nunn, 561 N.W.2d at 907.
In order for evidence to be properly admissible as immediate-episode evidence, the
supreme court has “emphasize[d] th e n e e d f o r a c l o s e c a u s a l a n d temporal connection
between the prior bad act and the charged crime.” Riddley, 776 N.W.2d at 426. In Riddley,
the defendant was charged with murder and the district court ad mitted evidence of a
robbery that occurred approximately 15 minutes earlier. Id. at 426-27. The supreme court

under Minn. R. Evid. 404(b). Immediate episode evidence is not subject to the notice
requirement announced in State v. Spreigl.” (citation omitted)).

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held that, although there was a close temporal connection betwe en the two events, there
was not a close causal connection between the murders and the robbery, and therefore, the
district court abused its discretion by admitting evidence of the robbery. Id. at 427.
Appellant argues that the tem poral connection here was too remote for the evidence
to be properly characterized as immediate-episode evidence under State v. Fardan, where
the defendant was charged with first-degree felony murder, second-degree felony murder,
and first-degree aggravated robbery in connection with a murder . 773 N.W.2d 303, 311
(Minn. 2009). In that case, the state moved to introduce evide nce of other crimes that
Fardan and his accomplices complet ed later in the evening on th e night that the murder
occurred, and the district court admitted the evidence over Fardan’s objection. Id. at 312.
On appeal, the supreme court held that the district court abused its discretion by admitting
evidence of the later robberies and assault, because there was no connection between the
other crimes and the murder. Id. at 317. It reasoned that the robbery and murder were
concluded before the other offenses occurred, and at least an hour had passed between the
events. Id. at 316-17. Moreover, it explained that, despite the identity of the perpetrators
being the same, and the other offenses being part of the same broad plan to commit robbery,
the murder was not committed to facilitate the other offenses a nd the other offenses were
not committed to facilitate the murder. Id. at 317.
The supreme court has not explic itly held what constitutes a su fficiently close
temporal connection in this c ontext. In some cases, like Riddley, the supreme court has
found a close temporal connection where the events were minutes or days apart. Cf.
Kendell, 723 N.W.2d at 608-09 (determini ng that evidence of shooting t hat occurred

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moments after the original shooting was immediate-episode evidence); State v. Darveaux,
318 N.W.2d 44, 48 (Minn. 1982) (determining that evidence of drugs found on defendant’s
person two days after the alleged robbery was immediate-episode evidence of the robbery
where the same type of drugs were stolen); Leecy, 294 N.W.2d at 282 (concluding that
testimony about earlier threats was immediate-episode evidence because those threats
escalated into the assault char ge). Other cases have found a c lose temporal connection
where weeks or months have elapsed between events. Cf. Nunn, 561 N.W.2d at 907-08
(explaining that testimony regarding an earlier kidnapping, occurring months earlier, was
immediate-episode evidence because the defendant obtained information during the earlier
kidnapping that motivated the murder charge); State v. Martin, 197 N.W.2d 219, 226-27
(Minn. 1972) (concluding that the district court properly admit ted testimony regarding
earlier robberies because the defendant’s desire to conceal the robberies that occurred
several weeks earlier motivated the charged murder.)
Unlike Fardan and Riddley, where no causal connection was found, there is a causal
connection between the earlier incident and the charged offense here because the prior theft
was relevant to explain why J.B. was meeting with appellant on the night in question. This
case also differs from Fardan and Riddley in that appellant here made no objection to the
admission of evidence concerning t he prior theft. The district court had no occasion to
consider the question, much less exclude the evidence sua sponte. We see no error, much
less error that was plain, in this circumstance. See Webster, 894 N.W.2d at 787 (“An error
is plain if it is clear or obvious.” (quotation omitted)).

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II. The district court did not e rr in its instructions to the jury.

Appellant argues that the district court’s jury instructions we re erroneous because
they did not adequately instruct the jury regarding the state’s burden to prove beyond a
reasonable doubt that appellant intentionally aided in the charged offenses.
Appellant did not object to the jury instructions at trial. “F ailure to object to jury
instructions generally results in a waiver of the issue on appeal.” State v. Earl, 702 N.W.2d
711, 720 (Minn. 2005). But “we have discretion to consider a c laim of error on appeal if
there was plain error affecting substantial rights or an error of fundamental law in the jury
instructions.” State v. Crowsbreast , 629 N.W.2d 433, 437 (M inn. 2001) (quotation
omitted); see State v. Milton, 821 N.W.2d 789, 807-08 (Minn. 2012).
Here, appellant raised the claimed instruction error by posttri al motion. Appellant
argues that this challenge to the district court’s jury instruc tion under Minn. R. Crim. P.
26.03, subd. 19(4)(f), preserves the issue for appellate review and that we should therefore
apply the harmless-error standard of review. In State v. Griffin, we held that “[w]hen an
unobjected-to trial error is not one of fundamental law or cont rolling principle and is first
raised by a postverdict motion for a new trial, our review of a denial of the motion for new
trial is limited to plain-error review.” 846 N.W.2d 93, 96 (Minn. App. 2014), review denied
(Minn. Aug. 5, 2014). Conversel y, if the alleged unobjected-to t r i a l e r r o r r a i s e d i n a
postverdict motion is one of fu ndamental law or controlling pri nciple, the harmless-error
standard of review applies. Id. at 105.
Here, it matters not whether the harmless-error or plain-error standard of review
applies. There was no error in the instructions.

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The district court made three conclusions of law when it denied appellant’s posttrial
motion: (1) aiding and abetting is not a separate substantive offense, but is instead a theory
of liability that does not add a criminal element; (2) the inst ructions provided to the jury
did not misstate the law, and they were the exact instructions in CRIM JIG 4.01; and
(3) looking at the instructions as a whole, the jury was instru cted several times regarding
the state’s burden to prove appellant’s guilt beyond a reasonable doubt.
Jury instructions must “fairly a nd adequately explain the law.” State v. Ihle , 640
N.W.2d 910, 916 (Minn. 2002). In determining whether jury inst ructions correctly state
the law, an appellate court analyz es the criminal statute and r elevant case law. State v.
Taylor, 869 N.W.2d 1, 15 (Minn. 2015). As relevant here, “[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).2
The district court defined the reasonable-doubt standard and instructed the jury that
it is the state’s burden to pr ove appellant’s guilt beyond a re asonable doubt. The district
court also instructed the jury concerning accomplice liability, in accordance with 10
Minnesota Practice, CRIMJIG 4.01 (2015), as follows:
Liability for crimes of another. The defendant is guilty
of a crime committed by anothe r 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. The intentional role includes

2 We cite to the 2016 statute because the offense for which appellant was charged occurred
in 2017.

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intentionally aiding, advising, hiring, counseling, conspiring
with, or procuring another to commit the crime.

The defendant’s presenc e or actions constitute
intentionally aiding if, first, t he defendant knew others were
going to commit or were comm itting a crime. Second, the
defendant intended that his presence or actions aid the
commission of the crimes. The defendant is guilty of a crime,
however, only if the other person commits a crime. The
defendant is not guilty for aiding, advising, hiring, counseling,
conspiring or otherwise procuring the commission of a crime
unless some crime, including an attempt, is actually
committed.

You should apply this instruction to determine whether
the defendant aided others in committing the offenses of
aggravated robbery in the first degree with a dangerous
weapon; aggravated robbery in the first degree, inflicting
bodily harm; and assault in the second degree.

The district court then provided the elements to each of the charged offenses and instructed
the jury, “If you find that each of these elements has been pro ven beyond a reasonable
doubt, the defendant is guilty. If you find that any element h as not been proven beyond a
reasonable doubt, the defendant is not guilty.”
The Minnesota Supreme Court has expressly encouraged district c ourts to instruct
the jury in this manner. See State v. Huber , 877 N.W.2d 519, 524-25 n.3 (Minn. 2016)
(explaining that district courts are encouraged “to separately instruct the jury on
accomplice liability and on the und erlying elements of the subs tantive offenses because
when the district court conflates the elements of accomplice li ability and the underlying
substantive offense, the instr uction risks omitting the ‘intent ionally aiding’ element of
accomplice liability”).

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Appellant argues that the accomplice-liability instruction was deficient because it
failed to clearly convey the state’s burden to prove accomplice liability beyond a
reasonable doubt. Specifically, appellant notes that, “[w]hile the court properly instructed
the jurors on the elements of accomplice liability, it did not call them ‘elements’ and it did
not state that each element must be proven beyond a reasonable doubt.”
Appellant relies on State v. Mahkuk, where the supreme court held that the district
court erred by instructing the jury that it need only consider, not find beyond a reasonable
doubt, that the defendant had knowledge that a crime was going to be committed and that
the defendant intended for his presence to further commission of that offence. 736 N.W.2d
675, 683 (Minn. 2007). Here, the district court made no simila r remark, and made no
suggestion that the state need not meet the reasonable-doubt standard of proof. In Milton,
the defendant argued for the first time on appeal that the jury instruction on accomplice
liability was legally erroneous because the district court did not require the jury to find that
the defendant knowingly and inten tionally aided another to comm it the robbery. 821
N.W.2d at 805. The supreme court concluded that an accomplice-liability instruction must
explain that, in order to convict, the jury must find beyond a reasonable doubt that the
defendant knew his alleged accomplice was going to commit a cri me and the defendant
intended his presence or actions to further that crime. Id. at 808.
I n State v. Kelley , the supreme court explained that, to convict Kelley as an
accomplice of first-degree aggravated robbery, the state had to prove beyond a reasonable
doubt that he (1) knew his friend was going to commit the robbe ry and (2) intended his
presence to further commission of the crime. 855 N.W.2d 269, 2 83 (Minn. 2014). In

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Kelley, the district court read the standard accomplice-liability jury instructions. Id. at 274,
n.5 (quoting 10 Minnesota Practice , CRIMJIG 4.01 (2006 ) ) . T h e s u p r e m e c o u r t
determined that “[t]he instruction on accomplice liability in this case failed to explain the
intentionally aiding element as required by Milton, and therefore was error.” Id. at 275.
The critical distinction between what the supreme court determined were erroneous
jury instructions in Kelley and the instructions that the district court provided here, is the
additional language read by the d istrict court here: “The defe ndant’s presence or actions
constitute intentionally aiding if, first, the defendant knew others were going to commit or
were committing a crime. Second, the defendant intended that his presence or actions aid
the commission of the crimes.” Coupled with the beyond-reasonable-doubt instruction, the
jury was properly instructed concerning the “intentionally aiding” element. We discern no
error in the accomplice-liability instructions.
The district court did not plainly err by not sua sponte exclu ding the state’s proffered
evidence concerning the prior the ft of J.B., and the district c ourt properly instructed the
jury concerning accomplice liability and the state’s burden of proof.
Affirmed.