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This opinion will be unpublished and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
A18-1836

State of Minnesota,
Respondent,

vs.

Jeremy Darryl Jones,
Appellant.

Filed September 23, 2019
Affirmed
Slieter, Judge

Hennepin County District Court
File No. 27-CR-15-32873

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

Michael O. Freeman, Hennepin County Attorney, Jonathan P. Schmidt, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, St. Paul, Minnesota; and

Melissa Sheridan, Assistant Public Defender, Eagan, Minnesota (for appellant)

Considered and decided by Slieter, Presiding Judge; Ross, Judge; and Kalitowski,
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
SLIETER, Judge
In this direct appeal from a final judgment of conviction for aiding first -degree
aggravated robbery, appellant argues that the district court plainly erred by failing to sua
sponte give an accomplice-testimony instruction, and plainly erred by giving a no-adverse-
inference instruction without appellant’s consent. We affirm.
FACTS
The state charged appellant Jeremy Darryl Jones with aiding first-degree aggravated
robbery and aiding simple robbery based on information that he participated in a robbery
with his girlfriend Ashley Daher. Jones was present at trial initially but left the courthouse
just after the jury was sworn in and did not return. The district court found that Jones had
voluntarily absented himself and proceeded with the trial. The parties presented the
following evidence.
Appellant and Daher were in a relationship for three years at the time of the robbery.
They have one child together. Daher met victim J.M. at a Minneapolis strip club in 2014.
Unlike J.M.’s romantic interest in her, Daher was not interested in J.M. romantically.
Daher used J.M’s romantic interest in her to her advantage; Daher would contact J.M. when
she needed money. The two would occasionally go to the ca sino, and J.M. would give
Daher money to play. Daher knew J.M. usually brought cash to the casino.
On October 11, 2015, Daher called J.M. because she needed money to pay her phone
bill. The two met at a pizza restaurant in Minneapolis that evening. At dinner, Daher asked
J.M. for money to pay her phone bill. J.M. responded that he wanted Daher to go to the

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casino with him that evening and that the money he had was for use at the casino. J.M.
told Daher that he would pay her phone bill in the morning.
This upset Daher, and she “felt like it was a waste of [her] time.” Daher then went
to the bathroom to call appellant. Daher told appellant that J.M. would not give her the
money and suggested that she “should just take the money.” Appellant told Daher to bring
J.M. to an address on Upton Avenue and wait for appellant.
Daher returned to the table, told J.M. that she wanted to give the leftover pizza to
her daughter and instructed J.M. to drive to the Upton Avenue address . Daher and J.M.
drove separate vehicles to the address. After arriving, Daher got in J.M.’s vehicle and
waited for appellant. J.M. was in the driver’s seat; Daher was in the front passenger seat.
Appellant arrived, walked up to the vehicle, got in the backseat, and pointed a gun
at J.M.’s back. Appellant demanded money; J.M. complied—giving appellant his wallet,
cash, and phone. Appellant then exited the vehicle. J.M. asked Daher to call the police,
but Daher got in her vehicle and drove away.
J.M. went in search of the police and found a marked squad car. J.M. stopped to
ask for help. J.M. described the man who robbed him as “a black man[]” and “muscular”
but did not remember “exactly” what he looked like. The officers began investigating. The
officers went to the pizza restaurant to view the security footage and saw J.M. and Daher
at the restaurant and Daher’s 2002 silver Monte Carlo.
J.M. then met with the investigating officer. J.M. provided the investigator with
Daher’s phone number. The investigator executed a search warrant on Daher’s phone
number and discovered that Daher called a particular phone number approximately

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22 times on the day of the robbery. The investigator learned that the phone number was
linked to appellant’s Facebook account.
The police asked J.M. to review a six -person photo lineup. J.M. identified two
individuals as “very possible” suspects, one of which was a photo of appellant.
Daher testified against appellant at t rial. The district court did not read an
accomplice-testimony cautionary instruction before her testimony. Daher described the
robbery as well as her and appellant’s role in it. Daher also described the leniency she
received in exchange for her testimony. The investigating officers also testified and
explained their investigation.
The district court’s final jury instructions did not include an accomplice -testimony
instruction. The district court did give an instruction to the jury about appellant’s right not
to testify. Due to the appellant’s voluntary absence, the district court was unable to obtain
appellant’s consent for that instruction. The jury convicted appellant of aiding first-degree
aggravated robbery and aiding simple robbery. This appeal follows.
D E C I S I O N
Jury instructions “must fairly and adequately explain the law of the case []” and
cannot “materially misstate[] the appli cable law.” State v. Koppi , 798 N.W.2d 358, 362
(Minn. 2011). A district court has “considerable latitude in selecting language for jury
instructions.” State v. Gatson , 801 N.W.2d 134, 147 (Minn. 2011) (quotation omitted).
The jury instructions must be read as a whole, and if the instructions “correctly state[] the
law in language that can be understood by the jury, there is no reversible error. ” State v.
Peou, 579 N.W.2d 471, 475 (Minn. 1998).

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Because appellant did not object at trial to either of the jury instruction issues, we
review their admission , or lack thereof, for plain error. Minn. R. Crim. P. 31.02. Plain
error requires the defendant to show (1) error , (2) that was plain, and (3) that affected the
defendant’s substantial rights. State v. Pilot, 595 N.W.2d 511, 518 (Minn. 1999). “If all
three requirements are met, we then determine whether relief is required to ensure fairness
and the integrity of the judicial proceedings.” State v. Fraga, 898 N.W.2d 263, 277 (Minn.
2017) (quotation omitted). “An error is plain if it is clear and obvious; usually this means
an error that violates or contradicts case law, a rule, or an applicable standard of conduct.”
State v. Matthews, 779 N.W.2d 543, 549 (Minn. 2010).
I. The district court’s failure to give an accomplice-testimony instruction did
not affect appellant’s substantial rights.

Appellant argues that it was plainly erroneous to fail to provide an accomplice -
testimony instruction to the jury. We agree that the district court plainly erred in failing to
provide the jury the accomplice -testimony instruction. However, this plain error did not
affect appellant’s substantial rights.
Minn. Stat. § 634.04 (2014) provides that a conviction cannot res t upon an
accomplice’s testimony “unless it is corroborated by such other evidence as tends to
convict the defendant of the commission of the offense, and the corroboration is not
sufficient if it merely shows the commission of the offense or the circumsta nces thereof.”
The district court must give an accomplice-testimony instruction “‘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) (quoting State v. Shoop ,

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441 N.W.2d 475, 479 (Minn. 1989)). “The duty to instruct on accomplice testimony
remains regardless of whether counsel for the defendant requests the instruction” and
omission of the jury instruction is error. Id. The accomplice instruction provides:
You cannot find the defendant guilty of a crime on the
testimony of a person who could be charged with that crime,
unless that testimony is corroborated by other evidence that
tends to convict the defendant of the crime. Such a person who
could be charged for the same crime is called an accomplice.

. . . .

The evidence that can corroborate the testimony of an
accomplice must do more than merely show that a crime was
committed or show the circumstances of the crime, but the
corroborating evidence need not convince you by itself that the
defendant committed the crime. It is enough that it tends to
show that the defendant committed a crime, and that taken with
the testimony of an accomplice you are convinced beyond a
reasonable doubt that the defendant committed the crime.

10 Minnesota Practice, CRIMJIG 3.18 (2015 & Supp. 2018)

Because the district court did not provide the accomplice instruction, the error was
plain; the issue here is whether or not the error affected appell ant’s substantial rights. An
appellant’s substantial rights are affected “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.”
State v. Griller, 583 N.W.2d 736, 741 (Minn. 1998) (footnote omitted) (quotation omitted).
An appellant “bears the burden of persuasion” on this element, and it is a heavy burden.
Id. To determine whether substantial rights have been affected by the omission of the
accomplice instruction, we examine: (a) “whether the testimony of the accomplice was
corroborated by significant evidence, ” (b) “whether the accomplice testified in exchange

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for leniency, ” (c) “whether the prosecution emphasized the accomplice’s testimony in
closing argument,” and (d) “whether the court gave the jury general witness credibility
instructions.” State v. Horst, 880 N.W.2d 24, 38 (Minn. 2016) (quotation omitted).
A. Corroboration
Corroborative evidence “is sufficient to corroborate an accomplice’s testimony
when it is weighty enough to restore confidence in the truth of the accomplice’s testimony.”
State v. Clark , 755 N.W.2d 241, 253 (Minn. 2008) (quotation omitted). “This burden is
met when the defendant is linked to the alleged crime by corroborating evidence that in
some substantial degree tends to affirm the truth of [the accomplice’s] testimony and to
point to the guilt of the defendant.” Id. (alteration in original) (quotation omitted). “[A]
single piece of corroborating evidence” does not have to “satisfy both corroboration
requirements.” Id. at 255. Rather, “the evidence as a whole must both affirm the truth of
the accomplice’s testimony and point to the defendant’s guilt.” Id. (footnote omitted). This
court reviews the sufficiency of evidence corroborating an accomplice’s testimony in the
light most favorable to the state, and all conflicts presented by the evidence are resolved in
favor of the verdict. See State v. Pippitt, 645 N.W.2d 87, 93 (Minn. 2002).
There is sufficient corroborating evidence here. Surveillance video of the pizza
restaurant showed J.M. and Daher eating together. The phone records show that Daher
called appellant many times the day of the robbery. And J.M.’s own testimony
corroborated Daher’s accoun t of the robbery. This evidence sufficiently corroborates
Daher’s testimony of events that night. The corroborating evidence also linked appellant
to the crime. Out of a six-person photo lineup, J.M. picked appellant and one other suspect

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as “very possible” perpetrators. This points to appellant’s guilt to a “substantial degree.”
Clark, 755 N.W.2d at 253.
B. Testimony in Exchange for Leniency

Daher testified in exchange for leniency and admitted this to the jury. Daher stated,
during cross-examination, that she entered a “deal” with the state in order to testify. Daher
also testified that the deal call ed for 180 days at the workhouse, and that she would have
received 48 months in prison had she not testified. The defense, during cross-examination
of Daher, highlighted Daher’s desire to avoid jail because she has children to care for. “The
jury was there fore fully informed when it weighed [Daher’s] credibility.” Horst,
880 N.W.2d at 39.
Although the plea deal was a significant benefit for Daher, the jury knew of her deal
with the state while considering the credibility of her testimony . Further, appella nt is
Daher’s boyfriend and the father of one of her children —this weighs heavily in favor of
her credibility before the jury.
C. Emphasis on the Accomplice’s Testimony in Closing Argument

The state did emphasize Daher’s testimony in closing . It referred to Daher’s
testimony as the “most damaging evidence” implicating appellant. Hence, this factor
favors the appellant’s position.
D. General Witness Credibility Instructions
In Horst, the supreme court placed emphasis on this element, stating “perhaps most
importantly, the district court gave the general witness -credibility instruction to the jury.”
Id. at 39. Like Horst, the jurors here were instructed that they “may take into consideration

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the witness’s interest or lack of interest in the outcome of the case.” Thus, the jury was
“alerted . . . to the potential for conflicting motivations behind certain testimony.” Id. at 39
(alteration in original) (quotation omitted).
Weighing the factors, there is not a reasonable likelihood that the j ury’s verdict
would have changed had the district court given an accomplice -corroboration instruction
to the jury . Griller, 583 N.W.2d at 741. Therefore, appellant failed to show that his
substantial rights were affected by the failure to give an accompl ice-corroboration
instruction, and he is not entitled to relief under the plain-error analysis.
II. The district court’s no-adverse inference instruction, given without appellant’s
consent, did not affect appellant’s substantial rights.

Appellant argues that the district court plainly erred by instructing the jury , absent
his consent, that it cannot draw an adverse inference from appellant’s decision not to
testify. “[A] trial judge ordinarily should obtain a criminal defendant’s permission before
giving CRIMJIG 3.17, which instructs the jury not to draw any adverse inference from the
defendant’s decision not to testify.” State v. Thompson, 430 N.W.2d 151, 153 (Minn. 1988)
(footnote omitted) . The district court should ask the defendant, not the defendant’s
attorney, about the instruction, and a record should be made of the defendant’s preference.
Id.
Although there was error that was plain by providing the no-adverse-inference
instruction, there is not “a reasonable likelihood that the giving of the instruc tion in
question would have had a significant effect on the verdict of the jury .” Griller,
583 N.W.2d at 741. Appellant argues that “the instruction about Jones’ failure to testify

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only highlighted Jones’ absence and his failure to testify, which could h ave cause[d] the
jury to wonder whether Jones had something to hide.” But appellant left during the first
trial break and never returned —he “highlighted” his absence to the jury by leaving and
failing to return even after a continuance.
Moreover, the issue at trial was the identity of the robber. Daher’s testimony clearly
tied appellant to the crime. Appellant “bears a heavy burden of showing that [his]
substantial rights have been affected,” and given the evidence at trial, the jury would have
reached the same verdict with or without the no-adverse-inference instruction. State v.
Darris, 648 N.W.2d 232, 240 (Minn. 2002).
Affirmed.