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This opinion will be unpublished and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
A18-0609

State of Minnesota,
Respondent,

vs.

Corey Joe Mickelson,
Appellant.

Filed March 11, 2019
Affirmed
Klaphake, Judge*

Fillmore County District Court
File No. 23-CR-17-727

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

Brett A. Corson, Fillmore County Attorney, Preston, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Veroni ca M. Surges, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Ross, Presiding Judge; Jesson, Judge; and Klaphake,
Judge.

* Retired judge of the Minnesota Court of Appeals, serving by appointment 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
KLAPHAKE, Judge
Corey Joe Mickelson appeals from his conviction of disorderly conduct involving
brawling or fighting. Mickelson argues that the district court plainly erred by not
instructing the jury that the complaining witness was an accomplice as a matter of law. He
further argues that the evidence is insufficient to sustain the jury’s guilty verdict because it
consists solely of uncorroborated testimony from the complaining witness , who was also
an accomplice to the disorderly conduct. Because Mickelson has not demonstrated that he
suffered prejudice and there is sufficient evidence to support Mickelson’s conviction, we
affirm.
D E C I S I O N
Jury Instruction
We first consider Mickelson’s argument that the district court erred by not
instructing the jury that the complaining witness, K.A., who testified at trial, was an
accomplice as a matter of law. A jury instruction on accomplice testimony “must be given
in any criminal case in which any witness against the defendant might reasonably be
considered an accomplice to the crime.” State v. Lee, 683 N.W.2d 309, 316 (Minn. 2004)
(quotation omitted). “The duty to instruct on acc omplice testimony remains regardless of
whether counsel for the defendant requests the instruction ,” and omission of the jury
instruction when required is error. Id.; see State v. Strommen , 648 N.W.2d 681, 689 -90
(Minn. 2002) (noting that district court’s failure to instruct on accomplice was error). If it
is clear as a matter of law that a witness is an accomplice, i.e., the facts are undisputed and

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only one inference can be drawn, a district court should make the determination and must
then inform the jury. Lee, 683 N.W.2d at 314; State v. Shoop, 441 N.W.2d 475, 479
(Minn. 1989). But “if the evidence is disputed or susceptible to different interpretations,
then the question whether the witness is an accomplice is one of fact for the jury.” Lee, 683
N.W.2d at 314 (quotation omitted); Shoop, 441 N.W.2d at 479. We review a district court’s
decision whether to instruct the jury that a witness is to be considered an accomplice as a
matter of law for an abuse of discretion. State v. Pendleton, 759 N.W.2d 900, 907 (Minn.
2009).
Here, the district court instructed the jury on accomplice testimony and left the
question whether K.A. is an accomplice as one of fact for the jury. Because Mickelson did
not object to the language of the jury instruction, the plain-error standard of review applies.
State v. Watkins, 820 N.W.2d 264, 267 (Minn. App. 2012). Mickelson must therefore show
that the district court’s failure to instruct the jury that K.A. was an accomplice as a matter
of law was “ (1) error, (2) that was plai n, and (3) that affected [his] substantial rights.”
State v. Rossberg, 851 N.W.2d 609, 618 (Minn. 2014) (quotation omitted). “If these three
prongs are met, the appellate court then assesses whether it should address the error to
ensure fairness and the integrity of the judicial proceedings.” State v. Griller, 583 N.W.2d
736, 740 (Minn. 1998).
Even assuming that the district court committed plain error by not instructing the
jury that K.A. was an accomplice as a matter of law, the burden is on M ickelson to show
that the error affected his substantial rights. State v. Horst , 880 N.W.2d 24, 38 (Minn.
2016). Plain error in jury instructions affects “substantial rights” only if the error was

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prejudicial. Griller, 583 N.W.2d at 741. An error is prejudicial if there is a “reasonable
likelihood that the giving of the instruction in question would have had a significant effect
on the verdict of the jury.” Id. (quotation omitted). In determining whether an error is
prejudicial, we look to the record and all relevant factors, including whether the accomplice
testified under a promise of leniency and whether the evidence is overwhelming and
independently corroborated. See Shoop, 441 N.W.2d at 481. Independent corroborating
evidence may consist of “physical evidence associated with the crime ; the testimony of
eyewitnesses and experts at trial; inadequacies and admissions in a defendant’s testimony;
and suspicious and unexplained conduct of an accus ed before or after the crime.” State v.
Pederson, 614 N.W.2d 724, 732 (Minn. 2000) (citations omitted).
Mickelson has not met his burden to show that this alleged error in the jury
instructions was prejudicial. K.A., the complaining witness, testified at trial regarding the
domestic disturbance between her and Mickelson that occurred in November 2017 . K.A.
testified that Mickelson became upset as they were driving back to Mickelson’s apartment
from a Thanksgiving celebration. K.A. stated that Mickelson pull ed over more than once,
threatened to drive away without her and her two children, and was verbally abusive toward
her in front of her children. K.A. also testified that once they returned to Mickelson’s
apartment, Mickelson began throwing some of her belo ngings as she attempted to gather
them. K.A. further testified that Mickelson charged at her, and that she picked up a glass
ornament and threw it at him.
Significant evidence corroborating K.A.’s testimony was presented at trial. The state
introduced K.A .’s 911 call, which contained prior consistent statements supporting her

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testimony, as well as a photograph of a scratch on K.A.’s foot taken by the responding
officer. Moreover, Mickelson’s own testimony and his recorded statement to police, though
inconsistent with K.A.’s testimon y in some respects, corroborate K.A.’s testimony on
several critical points. See id. at 733. Mickelson conceded in his testimony that he had an
argument with K.A. on their return to his apartment from the Thanksgiving celebration.
Mickelson also contrasted a “disagreement” between himself and K.A. before going to the
Thanksgiving celebration as being distinct from the dispute that occurred when they
returned, chara cterizing the later argument as “yelling and screaming . . . [and] so
aggressive.” Both K.A. and Mickelson testified that their argument escalated to a level such
that K.A.’s children were crying. Mickelson’s testimony was also consistent with K.A.’s
testimony that he pulled over multiple times during their drive and that she threw glass
ornaments at him. Because the record contains independent corroboration of K.A.’s
testimony, there is no reasonable likelihood that the absence of the alleged error would
have had a significant effect on the jury’s verdict in this case. We therefore conclude that
the district court’s decision not to instruct the jury that K.A. was an accomplice as a matter
of law did not prejudice Mickelson so as to affect his substantial rights.
Sufficiency of the Evidence
Next, we consider Mickelson’s argument that the evidence is insufficient to sustain
the jury’s verdict against him for disorderly conduct involving brawling or fighting because
it consists solely of uncorroborated 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 defendant of the commission of the offense. ” Minn. Stat. § 634.04

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(2016). The corroboration “is not sufficient if it merely shows the commission of the
offense or the circumstances thereof.” Id. But corroborating evidence does not, by itself,
need to be sufficient to establish a prima facie case. State v. Chavarria-Cruz, 839 N.W.2d
515, 519 (Minn. 2013). The corroborating evidence is adequate if “it restores confidence
in the accomplice’s testimony, confirming its truth and pointing to the defendant’s guilt in
some substantial degree.” State v. Ford , 539 N.W.2d 214, 225 (Minn . 1995) (quotation
omitted). “When considering a claim of insufficient evidence, our review is limited to a
painstaking analysis of the record to determine whether the evidence, when viewed in the
light most favorable to the conviction, was sufficie nt to permit the jurors to reach the
verdict which they did. ” State v. Ortega , 813 N.W.2d 86, 100 (Minn. 2012) (quotation
omitted).
Mickelson was convicted of disorderly conduct involving brawling or fighting,
which requires proof that a person engaged in brawling or fighting in a public or private
place and knew or had reasonable grounds to know that it would, or would tend to, “alarm,
anger or disturb others or provoke an assault or breach of the peace.” Minn. Stat. § 609.72,
subd. 1(1) (2016).
Assuming, without deciding that K.A.’s testimony required corroboration, there are
still sufficient facts to sustain the jury’s verdict in this case . As discussed above, the 911
call containing K.A.’s prior consistent statements, the photograph of K.A.’s foot, and
Mickelson’s own recorded sta tement and testimony that he engaged in an argument with
K.A. all corroborate K.A.’s testimony. This evidence does not merely show that disorderly
conduct occurred; rather, it points to Mickelson engaging in disorderly conduct in a

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substantial degree. Accordingly, the evidence is sufficient to support Mickelson’s
conviction.
Affirmed.