St. Louis County Thissen, J. Took no part, Moore, J. State of Minnesota,

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STATE OF MINNESOTA
IN SUPREME COURT

A19-0538

St. Louis County Thissen, J.
Took no part, Moore, J.
State of Minnesota,

Respondent,
vs. Filed August 5, 2020
Office of Appellate Courts
Deandre Demetrius Davenport,

Appellant.

________________________

Keith Ellison, Attorney General, Edwin W. Stockmeyer, Assistant Attorney General, Saint
Paul, Minnesota; and

Mark S. Rubin, St. Louis County Attorney, Duluth, Minnesota, for respondent.

Cathryn Middlebrook, Chief Appellate Public Defender, Saint Paul, Minnesota; and

Melissa Sheridan, Assistant Public Defender, Eagan, Minnesota, for appellant.

________________________

S Y L L A B U S
1. Because the jury reasonably could have concluded that a testifying witness
was appellant’s accomplice, and testimony give n under oath in a court proceeding and
admitted at trial as substantive evidence of appellant’s guilt is “testimony” under
Minn. Stat. § 634.04 (2018), the district c ourt erred by failing to give an accomplice
corroboration instruction to the jury; but viewing the record as a whole, the district court’s

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error did not affect appellant’s substantial rights.
2. The circumstances proved, when viewed as a whole, are not consistent with
any rational hypothesis other than that of guilt.
3. Appellant’s substantial rights were not prejudiced by alleged defects in the
indictment.
Affirmed.
O P I N I O N
THISSEN, Justice.
Appellant Deandre Demetr ius Davenport stood trial for two counts of first-degree
murder under an aiding and abetting theory of liability, Minn. Stat. § 609.185(a)(3) (2018),
one count of second-degree murder under an aiding and abetting theory of liability, Minn.
Stat. § 609.19, subd. 1(1) (2018), and one count of second-degree murder as a principle, id.,
subd. 2(1) (2018), for the shooting death of William Grahek. A ju ry found him guilty of
both counts of first-de gree murder under an aiding and ab etting theory and one count of
second-degree murder under an aiding and abetting theory. Davenport appealed. He argues
that his convictions should be reversed and the case should be remanded for a new trial.
Because we conclude that Davenport is not entitled to a new trial, we affirm.
FACTS
On February 14, 2017, Gr ahek was shot and killed in his home during a home
invasion. After an extensiv e police investigation, thre e young men were charged with
Grahek’s murder: Davenport, Noah Baker, and Noah King. Baker ultimately pleaded guilty
to second-degree murder and implicated Davenport and King in his plea hearing testimony.

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At Davenport’s trial, the State’s theory of the case was that Davenport shot Grahek while
Davenport, Baker, and King were attempting to commit burglary and robbery. Baker’s plea
hearing testimony supported this theory. But when Baker test ified at Davenport’s trial,
Baker stated that he alone ha d attempted to burgle Grahek’s house and that he had shot
Grahek. Davenport used that testimony to support his theory of the case, which was that
Baker committed the charged crimes alone and that Bake r had enlisted Davenport’s
assistance in selling the gun that was used to shoot Grahek.
During Davenport’s trial, Baker’s plea hearing testim ony was admitted as
substantive evidence and read aloud. The jury therefore heard and was required to weigh
two conflicting versions of events offered by the same witness. Because Baker’s testimony
is central to this appeal, and because each version of events is supported by some
corroborating evidence, we relate both versions here. Facts as related here are consistent
with both versions unless expressly noted.
Grahek sold and distributed drugs. He kept drugs and money in a safe in the closet
of his basement bedroom. He would often invite others into his bedroom when making sales,
which made it possible for those individuals to see where he stored the drugs and money.
According to Baker’s plea hearing testimony, one of those individuals, X.H., was a friend of
Davenport’s and told Davenport about the drugs and money that Grahek had. Davenport
shared that information with Baker and King approximately one month before the murder,
and the three began planning to steal from Grahek. At trial, however, Baker testified that he
alone found out about the safe fr om X.H. and that he did not share that information with
King or Davenport.

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Around 1:00 p.m. on February 14, Davenport and Baker left the house they shared
with Baker’s sister—and Davenport’s girlfrien d—T.B. They took T.B.’s white Jeep and
drove it to King’s house. Davenport and Baker parked down the street from King’s house
and walked the rest of the way. Surveillance cameras from shops and gas stations
approximately one block from Ki ng’s house captured video of a white Jeep driving near
King’s house around 1:30 p.m. Minutes late r, cameras captured two men walking in the
direction of King’s house. According to King ’s girlfriend, who was present at the time,
Davenport and Baker entered King’s house through the back door and the three young men
went immediately into King’s bedroom. Af ter about 15 minutes, the three men emerged
from King’s room, dressed in all-black clothing. They then left through the back door that
led into the alley that King’s house shared with Grahek’s house.
State’s theory of the case
According to Baker’s plea hearing tes timony, Davenport, Baker, and King then
proceeded to Grahek’s house. Baker was ar med with a Glock 19, Davenport was armed
with a Glock 17, and King wa s armed with a wren ch. They had obtained the Glock 17
when Davenport and Baker robbed a house a couple of months earlier. When they arrived
at Grahek’s house, King kicked in one door, Baker kicked in the other, and the three men
entered. Soon after entering, Baker heard Davenport shouting, “[G]et on the ground.”
Baker turned and saw Davenport pointing a gun at Grahek, so Baker pulled out his gun too.
Grahek said, “[N]o,” and continued walking to ward the three men. Davenport then shot
Grahek. After the first shot, Baker fled the scene. He heard a second shot as he was running
out of the house.

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At 1:59 p.m., video surveillance from a nearby business shows one person running
away from the area where Grahek’s house was lo cated and, a few moments later, a white
Jeep speeding off in the direction from which it had come less than one hour earlier.1 Baker
testified that, after leaving Grahek’s house, he separated from Davenport and King but
reconnected with them at the Jeep soon thereafter. The three then drove back to Baker and
Davenport’s house.
Baker further testified that on the way to Baker and Davenport’s house, all three
men removed everything they had been weari ng and put it all into a garbage bag. When
they arrived at the house around 2:00 p.m., T.B. was there. T.B. testified that Baker and
Davenport came into the house while King stayed in the car. Davenport asked T.B. to drive
King home and explained that she needed to do it because “[w]e just tried to rob somebody
and it didn’t go like it was supposed to.” T.B. and Davenport then drove King home. They
dropped him off at the gas sta tion across the street from his hous e. Again, this action is
confirmed by video surveillance. When King returned from Baker’s house, he was wearing
different clothing than he had been wearing when he left. His girlfriend testified that, upon
arriving home, King told her that, if the police asked, she should tell them that he had been
home all day watching television with her.
Defense’s theory of the case
Davenport offered a different narrative to the jury based primarily on the testimony
Baker offered at Davenport’s trial. At trial, Baker stated that Davenport and King left

1 The video of a single person running is consistent with either theory.

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King’s house to run errands in the Jeep. Baker alone entered Grahek’s house. After being
confronted by Grahek, Baker shot Grahek with the Glock 17 and then fled on foot. He then
either walked or ran back to his house, arriving not long after Davenport and King returned
in the Jeep.2
This version of events is supported by police officers’ initial impression at the scene
that there was only one set of tracks in the snow leading away from Grahek’s house.3 And
Grahek’s brother testified that, other than his brother’s voice, he heard only one male voice
before the gunshots. He also testified that he did not h ear any other noises from the
basement after the gunshots. The defense argued that this was consistent with one person
fleeing the scene, as three would have made more noise. Finally, T.B. testified at
Davenport’s trial that Davenport never told her that he had tried to rob someone. She stated
that her brother, Baker, had said he tried to rob someone. This testimony contradicted her

2 When Baker testified at King’s trial one month before Davenport’s trial, he stated
that he had reunited with King and Davenpor t at the Jeep and that Davenport drove the
three of them home. At Daven port’s trial, Baker stated that he testified incorrectly at
King’s trial because he was under the influence of drug s and that his testimony at
Davenport’s trial was the truth.
But in a letter to Davenport’s counsel se nt before Davenport’s trial, Baker stated
that, as he began running back to his house, he saw Davenport and King driving in the Jeep,
stopped them, and rode the rest of the way b ack to his house. He did not explain this
inconsistency when he testified at Davenport’s trial.

3 At trial, one of the officers testified that when he viewed the photos of the tracks “in
preparation for the grand jury trial, it appeared . . . that those [tracks] could have been made
by more than one person” because it “wouldn’t be a natural kind of running stride to make
those [tracks] equally right next to each other at that distance.” In other words, rather than
being staggered, it appeared to the officer that there were two sets of parallel tracks.

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earlier testimony from another hearing that Da venport told her “[w]e just tried to rob
somebody and it didn’t go like it was supposed to.”
Facts consistent with both theories
After being shot, Grahek stumbled upstair s where he collapsed in front of his
brother. His brother ran outs ide and dialed 911 at 2:00 p. m. Another housemate of
Grahek’s also dialed 911 at that time. Grahek’s brother and his housemate had both heard
the gunshots. Grahek’s brother had also he ard a man yell “get on the ground.” Neither
they, nor anyone else, saw the in truders enter or leave the house. No DNA or fingerprint
evidence connecting Davenport, Baker, or Ki ng to the crimes was found in or around
Grahek’s house.
Police began investigating the shooting immediately. They quickly identified King
as a person of interest by find ing distinctive shoe prints in the snow by Grahek’s door, in
the alley, and in King’s backya rd. A K9 unit trackin g those prints also alerted at King’s
back gate and front door. Arou nd 5:00 p.m. on February 14 , officers executed a search
warrant of King’s house and found a pair of shoes with treads that matched the shoe prints.
King was taken to the police station for an interrogation. Throughout the interrogation,
King denied any involvement in the crimes. When investigators mentioned the shoe prints,
however, King asked, “How do y ou know he doesn’t have a pair of them shoes?” It was
not clear to whom he was referring, but at that point, the investigators had not yet told him
what crimes they were investigating or the gender of the victim.
While King was at the police station, Davenport, Baker, and T.B. went to a hotel in
Superior, Wisconsin and stayed there overnight. The next day, February 15, X.H. picked

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up Baker from the hotel and took him to a wooded area so he could burn the clothes worn
during the crimes. Video surveillance and cell-si te data for X.H. corroborate this action.
On that same day, Davenport sold the gun used to shoot Grahek . The gun was later
recovered at the house of the man who bough t it from Davenport. Ballistics analysis
matched the gun to two cartridge cases recovered at Grahek’s house.4
Other evidence presented at trial included cell phone data from February 14, which
showed numerous calls and text messages between phones belonging to Davenport, Baker,
and King’s girlfriend. The majority of those exchanges had been deleted from their phones.
The State argued that the cell phone activity connected all three to the crimes, while the
defense argued that the evidence could just as easily support its version of events. A similar
dispute surrounded phone conversations between Davenport and T.B. while Davenport was
in jail. In one, she stated th at none of them would be in trouble “[i]f nobody went out to
do anything dumb,” and Davenport replied, “Okay. Then a motha fucker ain’t stop nobody
from doing nothing dumb neither though.” In another conversation, T.B. stated, “[I]t’s not
just [Baker’s] fault,” and Davenport replied, “I didn’t say it was though.” The State argued
that those conversations implied Davenport’s involvement in the crimes. Conversely, the
defense argued that Davenport did not admit his involvement in the attempted burglary or
murder at any time during those conversations.

4 During his trial testimony, Baker stated that he asked Davenport to sell the gun
because Baker did not know anyone who wanted a gun. He stated that Davenport did not
know that the gun had been used to kill Grahek. At trial, the prosecutor questioned Baker
about a Facebook conversation he had with another individual in which Baker offered to
sell two Glocks. The State used this evidence to call into question Baker’s trial testimony.

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The jury found Davenport guilty of two counts of first-degree murder under an
aiding-and-abetting theory of liability and one count of second-degree murder under an
aiding-and-abetting theory of liability for the shooting death of Grahek and found him not
guilty of second-degree murder as a principle. The dist rict court imposed the mandatory
sentence of life in prison with the possibility of release after 30 years. Davenport appealed.
ANALYSIS
Davenport argues that the dist rict court’s failure to give the jury an accomplice
corroboration instruction was plain error that affected his substantial rights. In his pro se
supplemental brief, he further argues that the evidence against him was insufficient to prove
his guilt beyond a reasonable doubt. His pro se brief also alleges th at two flaws in the
indictment require reversal. We examine each argument in turn.
I.
Davenport argues that his convi ction should be reversed because the district court was
required to instruct the jury that accomplice testimony must be corroborated and failed to do
so. Because Davenport did not request, or object to the absen ce of, an accomplice
corroboration instruction at trial, our review is for plain error. See State v. Clark, 755 N.W.2d
241, 251 (Minn. 2008). When reviewing for plain error, we determine whether the district
court erred, whether the erro r was plain, and whether th e error affected Davenport’s
substantial rights. Id. at 251–52. If each of these requirements is satisfied, only then will we
consider whether reversal of Davenport’s conviction “is necessary to ensure fairness and the
integrity of the judicial process.” Id. at 252.

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A.
We have held that a distri ct court must instruct the ju ry that it cannot convict a
defendant based on the uncorroborated testimony of an accomplice. State v. Strommen, 648
N.W.2d 681, 689 (Minn. 2002). That duty to instruct “remains regardless of whether counsel
for the defendant requests the instruction.” Id.5
The duty to instruct arises from Minn. Stat. § 634.04 (2018), which states:
A conviction cannot be had upon the testimony of an accomplice,
unless it is corroborated by such othe r evidence as tends to convict the
defendant of the commission of the of fense, and the corroboration is not
sufficient if it merely shows th e commission of the offense or the
circumstances thereof.

Minn. Stat. § 634.04. “The statute contemplates that the issue of whether an accomplice’s
testimony has been sufficiently corroborated is a question of fact to be determined by the
jury.” Clark, 755 N.W.2d at 251. And unless the jury is told that it cannot rely solely on
an accomplice’s testimony, there is a “very r eal possibility that the jury could reject
corroborating evidence and convict on the tes timony of the accomplice standing alone.”
Strommen, 648 N.W.2d at 689.
The duty to instruct on th e need for corroboration applies only when a witness may
be an accomplice. Id. To determine whether a witness is an accomplice, courts ask whether
the witness could have been “indicted and convicted for the crime with which the accused is

5 The State argues that the accomplice co rroboration instruction need not be given
when, as here, the defense may have had strategic reasons for not requesting the instruction.
But our case law makes clear that district courts are required to give the instruction sua
sponte. Requiring district courts to sp eculate as to defense strategy unnecessarily
complicates a clear rule of law. We might reach a different conclusion in a case where the
defense had objected to the instruction, but we need not reach a decision on that issue here.

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charged.” State v. Lee , 683 N.W.2d 309, 314 (Minn. 2004) (citation omitted) (internal
quotation marks omitted). When the facts are “undisputed or compel but a single inference”
that a witness was an accomplice, that witness must be named in the jury instructions. State
v. Scruggs, 822 N.W.2d 631, 640 (Minn. 2012) (citation omitted) (internal quotation marks
omitted). “But if the question is disputed or subject to differing interpretations, the issue of
whether a particular person is an accomplice is a fact question for the jury to resolve.” Id.
Accordingly, we must determine whether sufficient facts exis ted such that the jury could
have found Baker to be Davenport’s accomplice.6
“A person is criminally liable for a crime committe d 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 (2018). And a “person liable under
subdivision 1 is also liable for any other crime committed in pursuance of the intended crime
if reasonably foreseeable by the person as a probable cons equence of committing or
attempting to commit the crime intended.” Id., subd. 2 (2018). “Whe ther one party to a
conspiracy to burgle could have reasonably foreseen that the other might commit an assault
in the event of such an encounter or interruption is a question of fact for the jury.” State v.
Filippi, 335 N.W.2d 739, 742 (Minn. 1983); see also State v. Valtierra, 718 N.W.2d 425,

6 The Minnesota accomplice corroboration in struction—the instruction not given in
this case—requires the jury to answer two questions. First, the model instruction informs
the jury that it must determine whether a witness was an accomplice of the defendant.
Second, it instructs that jury that, if it finds that the witness was an accomplice, it “cannot
find the defendant guilty of a crime on the basis of the accomplice’s testimony, unless that
testimony is corroborated.” 10 Minn. Dist . Judges Ass’n, Minnesota Practice—Jury
Instruction Guides, Criminal, CRIMJIG 2.09 (6th ed. 2019). In other words, the jury must
determine whether the witness’s testimony was corroborated.

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438–39 (Minn. 2006) (“[T]his court has rejected the contention that murder may not be a
probable consequence of aggravated robbery.”).
According to Baker’s plea hearing testimony, Baker, Davenport, and King planned to
rob Grahek. The three men ga thered at King’s house, dressed in all black, and armed
themselves with two handguns and a wrench. They kicked in Grahek’s doors and entered
his home. After Grahek con fronted the three men, both Da venport and Baker drew their
guns and pointed them at Grahek. When Grahek refused to follow Davenport’s instructions
to get on the ground, Davenport shot him. The three then fled the scene and covered up their
crimes. If the jury believed this version of events, it reasonably could have concluded that
Baker intentionally aided, advised, and conspired with Davenport to commit burglary and
robbery. The jury al so reasonably could ha ve concluded that mu rder was “reasonably
foreseeable [by Baker] as a probable cons equence” of the bur glary and robbery.
Consequently, we conclude that sufficient evidence was admitted at trial such that a jury
could have found Baker to be Davenport’s accomplice.
We further conclude that Baker’s plea hearing testimony, which was read into the
record at Davenport’s trial, was “testimony” for the purpose of section 634.04. Baker gave
his plea hearing testimony under oath during a court proceeding. And, importantly, his
statements were admitted at Davenport’s trial as substantive evidence of Davenport’s guilt.
Indeed, Baker’s plea hearing testimony was read aloud to the jury in question-and-answer
format; a testifying police officer read the prosecutor’s ques tions and Baker’s responses.
The jury therefore heard the plea hearing te stimony as though it was testimony given at

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trial. Consequently, the court erred when it failed to instruct th e jury on accomplice
corroboration.7
B.
We do not reach the issue of whether the e rror was plain. Instead, we assume the
error was plain and turn to whether it affected Davenport’s substantial rights. Failure to
give a required jury instruction affects a defe ndant’s substantial rights when “there is a
‘reasonable likelihood’ that the absence of the error would have had a ‘significant effect’
on the jury’s verdict.” State v. Reed , 737 N.W.2d 572, 583 (M inn. 2007). Because our
reason for requiring the accomplice corroboration instruction is to ensure that the jury did
not reject the corroborating evidence and ba se its verdict solely on the accomplice’s
testimony, our substantial rights inquiry focuses on whether there is a reasonable likelihood
that the jury relied solely on Baker’s plea hearing testimony.
To answer that question, we conduct an independent review of the record and
consider all relevant factors th at may bear on the question. See Lee, 683 N.W.2d at 317;
State v. Shoop, 441 N.W.2d 475, 480–81 (Minn. 1989) (stating that “a simple mechanical
analysis of the record” is insufficient). Our recent cases have highlighted four factors that
we consider as part of that review. See, e.g., State v. Horst , 880 N.W.2d 24, 38 (Minn.

7 In State v. Henderson, we declined to decide whether section 634.04 applies to out-
of-court statements of an accomplice admitted through other witnesses at trial. 620 N.W.2d
688, 701 (Minn. 2001). But we did suggest that statements other than those made at trial
may be “testimony” under section 634.04. See id. (stating that “arguably the same concerns
regarding reliance on accomplice testimony ex ist regardless of the form in which the
statements are presented to the jury”). In any event, we need not decide the issue left open
in Henderson to decide this case. We simply hold that, whatever else may be “testimony,”
Baker’s plea hearing testimony is testimony under section 634.04.

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2016) (considering “ ‘whether the tes timony of the accomplice was corroborated by
significant evidence, whether th e accomplice testified in exch ange for leniency, whether
the prosecution emphasized the accomplice’s testimony in closing argument, and whether
the court gave the jury general witness credibility instructions’ ” (quoting State v. Jackson,
746 N.W.2d 894, 899 (Minn. 2008))). We consider these factors as well as the unique fact
here that the alleged accomplice essentially testified twice—once in person and once
through his prior plea hearing testimony read into the record as substantive evidence—and
his testimony was contradictory.
These unique circumstances of a single witness offering contradictory testimony is
persuasive proof that the jury must have looked to something beyond Baker’s plea hearing
testimony—namely, corroborating evidence —to decide which version of Baker’s
testimony to believe. It also supports the conclusion that Davenport’s substantial rights
were not affected by the district court’s fa ilure to instruct the jury on the accomplice
corroboration rule.8

8 Arguably, the jury could have found that Baker was si mply not a credible witness
based solely on his demeanor at trial, without reference to other evidence introduced in the
case. But we do not believe that is a re asonably likely explanation. Rather, after
considering the totality of the trial record, we conclude that it is like ly that Baker’s trial
testimony was not credible because it conflict ed with other independent evidence. For
example, Baker stated that he ran or walked back to his house, arriving just after Davenport
and King, who had driven. But, as stated above, he offered a different version of events in
his testimony at King’s trial and in a letter to defense counsel. Baker also testified at trial
that he asked Davenport to sell the gun because he didn’t know anyone who wanted to buy
one. However, he had previously testified th at he did know someone looking to buy that
precise type of gun. And Bake r testified that he was the pe rson who X.H. told about the
safe, but others testified that Davenport was friends with X.H., while Baker and King were
not. Although the weakness of Baker’s tria l testimony is not corroborating evidence per

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Further, in this case, considerable ev idence corroborates Baker’s plea hearing
testimony.9 See State v. Jackson, 726 N.W.2d 454, 461 (Minn. 2007) (considering whether
the accomplice’s testimony was co rroborated by significant evidence). For instance,
Baker, Davenport, and King were close frie nds who had committed bu rglaries together
before. And King’s girlfriend testified that, immediately before the break-in and murder,
the three men gathered at King’s house and le ft the house together dressed in all black,
heading in the direction of Grahek’s house.
In addition, surveillance vi deo corroborates the chronology and timing of the events
to which Baker testified at his plea hearing. There is evidence th at after the murder,
Davenport told T.B. that “[ w]e just tried to rob somebod y and it didn’t go like it was
s u p p o s e d t o . ” H e a l s o r e p eatedly told T.B. not to ask him anything about what had
happened. Moreover, police connected Davenport to the gun that killed Grahek. Finally,
Davenport made several arguably incriminating statements on phone calls from jail.

se, it does “form[] part of the evidence as a whole[, which] must both affirm the truth of
the accomplice’s testimony and point to the defendant’s guilt.” State v. Barrientos-
Quintana, 787 N.W.2d 603, 613 (Minn. 2010) (a lteration in original) (citation omitted)
(internal quotation marks omitted).

9 Corroborative evidence n eed not “establish a prima faci e case of the defendant’s
guilt or sustain a conviction.” Clark, 755 N.W.2d at 253–54 (collecting cases). Rather,
“evidence is sufficient to corroborate an accomplice’s testimony ‘when it is weighty
enough to restore confiden ce in the truth of the accomplice’s testimony.’ ” Id. at 253
(quoting State v. Sorg, 144 N.W.2d 783, 786 (Minn. 1966)); see also State v. Rasmussen,
63 N.W.2d 1, 3 (Minn. 1954) (stating that corroborating evidence is sufficient when it “in
some substantial degree tends to affirm the tr uth of [the accomplice’ s] testimony and to
point to the guilt of the defendant”). And “[c]ircumstantial evidence may be sufficient to
corroborate the testimony of an accomplice.” Rasmussen, 63 N.W.2d at 3.

16
As Davenport points out, some evidence, such as the surveilla nce video, supports
Baker’s plea hearing testimony and trial testimony equally. Further, some of the evidence
that corroborates Baker’s plea hearing testim ony is contradicted by other evidence that
supports Baker’s trial testimony. For instance, at trial, T.B. testified that Davenport never
told her that he tried to rob someone. The defense also pointed out that Davenport never
plainly admitted to his participation in his calls from the jail.
Davenport’s focus on the f act that corroborating evidence exists for both versions
of Baker’s testimony, however, mi sses the mark in this case. The inconsistencies in the
evidence presented at trial may have affected the weight the jury gave some of the evidence
that corroborated Baker’s plea hearing testimony. But the existence of conflicting evidence
does not mean that the record was devoid of evidence to corroborate Baker’s plea hearing
testimony. And because the jury ultimately believed the plea hearing testimony rather than
Baker’s trial testimony, there is a reasonable likelihood that it also believed, and relied
upon, the corroborating evidence that supported the plea hearing testimony.
In assessing whether there is a reasonable likelihood that a jury did not rely solely
on uncorroborated accomplice testimony given a district court’s failure to give the
mandated instruction, we have also considered whether the jury was alerted to facts that
could raise questions about the motiva tions for an accomplice’s testimony. Cf. Jackson,
726 N.W.2d at 461. When a jury does not understand that accomplice testimony was
motivated by a desire to get a better deal or some other malicious motive, the harm from
the failure to give the accomplice corroboration instruction may be exacerbated.

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Here, the jury was told that Baker offere d his plea hearing testimony because he was
afraid that if he went to trial he would r eceive a life sentence and that Baker received a
reduced sentence in exchange for his guilty plea. The jury knew it could consider that
information when weighing Baker’s plea hear ing testimony. This record informs our
conclusion that there is a reasonable likelih ood that the jury did not solely rely upon
Baker’s plea hearing testimony to the exclusion of corroborating evidence.
Finally, we take into account two other f actors that provide additional support for
our conclusion that the jury likely considered corroborating evidence beyond Baker’s plea
testimony. Our review of the transcript confir ms that the prosecutor in closing argument
“did not unduly emphasize the testimony of the accomplice[] over other evidence.” Horst,
880 N.W.2d at 39. And the dist rict court gave the jury a ge neral credibility instruction.
Lee, 683 N.W.2d at 317 (conside ring whether the district cour t gave a general credibility
instruction). The general credibility instruction told the jury that it should look at factors
beyond the witness testimony itself, making us more comfortable that the jury likely looked
to evidence corroborating Baker’s plea hearing testimony in reaching its verdict.10

10 The general credibility inst ruction, however, is not a substitute for the specific
accomplice corroboration instruction. Whil e the purpose of the general credibility
instruction—to ensure convic tions are based on reliable evidence—is the same as the
purpose underlying Minn. Stat. § 634.04, we cannot ignore that the Legislature chose a
very specific remedy to the problem of witn ess reliability in the context of accomplice
testimony. A jury must not simply consider whether an accomplice’s motives are suspect
or selfish as at common law; it must specifically find that the testimony of the accomplice
witness was corroborated. Shoop, 441 N.W.2d at 478–79.

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In sum, our independent review of the reco rd convinces us that the district court’s
failure to give the accompli ce corroboration instruction did not affect Davenport’s
substantial rights because there is no reasonabl e likelihood that the jury relied solely on
Baker’s plea hearing testimony to find him guilty. Davenport therefore is not entitled to a
reversal of his convictions because of the jury instruction error.
II.
Davenport argues in his pro se supplemental brief that the evidence against him was
insufficient to prove his guilt beyond a reasonable doubt. Davenport was found guilty of
first-degree murder (while committing or attempting to commit first-degree robbery) under
an aiding and abetti ng theory; first-degree murder (w hile committing or attempting to
commit first-degree burglary) under an aidi ng and abetting theory; and second-degree
murder under an aiding and abetting theory.
As stated above, a “person is crimina lly liable [as an a ccomplice] 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.
The phrase “intentionally aids” includes two elements: “(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. McAllister, 862
N.W.2d 49, 52 (Minn. 2015) (citation omitted ) (internal quotation marks omitted). In
addition, an accomplice is “also liable for any other crime co mmitted in pursuance of the
intended crime if reasonably foreseeable by the person as a probable consequence of
committing or attempting to commit the crime intended.” Minn. Stat . § 609.05, subd. 2

19
(2018). Therefore, to convict Davenport of felony murder under an aiding and abetting
theory, the State had to prove that (1) Davenport knew Baker and King were going to
commit a robbery or burglary and intended his presence or actions to further the
commission of the crime and (2) the killing of Grahek was in pursuance of the burglary or
robbery and was reasonably foreseeable as a probable consequence of the crime.
Davenport focuses his sufficiency-o f-the-evidence argument on the State’s
purported failure to prove that he knew abou t and intended to participate and aid in the
robbery or burglary. 11 “The ‘intentionall y aids’ element of accomplice liability is a
state-of-mind requirement. It is rare for th e State to establish a defendant’s state of mind
through direct evidence.” McAllister, 862 N.W.2d at 53. Here, the evidence the State
offered to prove Davenport’s intent is circumstantial.
When a challenge is to the sufficiency of the circumstantial evidence, we apply the
following two-step analysis:
First, we must identify the circumst ances proved, giving deference to the
jury’s acceptance of the proof of th ese circumstances and rejection of
evidence in the record that conflicted with the circumstances proved by the
State. Second, we independently examine the reasonableness of all
inferences that might be drawn from the circumstances proved, including
inferences consistent with a hypothesis other than guilt.

Id. at 53–54 (quoting State v. Anderson, 789 N.W.2d 227, 241–42 (Minn. 2010)). In the
second step, we give no deference to the jury’s choice between reasonable inferences. State

11 Davenport does not argue that the State pr esented insufficient evidence to prove that
Grahek was killed in pursuance of the intended crime nor that such a killing was reasonably
foreseeable as a probable cons equence of committing or attempting to commit the crime
intended. Minn. Stat. § 609.05, subd. 2. No r does he argue that the person who killed
Grahek acted without intent. See McAllister, 862 N.W.2d at 58 n.4.

20
v. Andersen, 784 N.W.2d 320, 329–30 (Minn. 2010). We therefore determine whether the
circumstances proved, when viewed as a whole, are consistent with guilt and “inconsistent
with any rational hypothesis” except that of guilt. McAllister, 862 N.W.2d at 54.
We begin by determining the circumst ances proved, rejecting any evidence
conflicting with the jury’s ve rdict. Applying that sta ndard, we conclude that the
circumstances proved are as follows: Davenport found out about the safe at Grahek’s house
through his friend, X.H. Davenport, Baker, and King planned to steal from Grahek; the
three had talked about doing so for several weeks before the crimes took place. The three
were armed with weapons—Davenport and Baker each had a gun and King had a wrench.
King’s girlfriend saw the three men leaving King’s house together dressed in all black just
minutes before the murder occurred. Da venport was seen with Baker and King only
minutes after the murder. Surveillance video also puts Davenport near the scene of the
crime. And soon after the murder, Davenpor t told T.B. that “[w] e just tried to rob
somebody and it didn’t go like it was supposed to.” He also repeatedly told T.B. not to ask
him anything about what had happened. Dave nport made several arguably incriminating
statements during phone calls in which he participated while he was in jail. Finally, the
gun used to kill Grahek was connected to Davenport in multiple ways. When viewed as a
whole, the circumstances prove d support a reasonable inference that Davenport knew of
and intended to participate in the robbery.
Davenport points to other evidence that, if believed by the jury, could have called
into question whether Davenport was involve d in the robbery, including T.B.’s trial
testimony that Baker had told her he alone tried to rob somebody; Grahek’s brother’s

21
statement that he heard only one voice coming from the basement during the robbery; the
testimony of a law enforcement officer that he could not e liminate the possibility that
Davenport returned to his car after he left King’s house; testimony from another officer
that there was one set of trac ks leaving the crime scene; a nd Baker’s trial testimony that
Davenport was not involved in the crime. Becau se this evidence is inconsistent with the
jury’s verdict, we must assume that the jury did not believe it and, accordingly, we do not
consider it as part of the circumstances proved by the State.
Next, we consider whether the circumstan ces proved, when viewed as a whole, are
consistent with any rational hypothesis except that of guilt. We conclude that they are not.
We can draw only one reasonable inference from the facts that Davenport found out about
the safe, engaged in planning the robbery, armed himself, and entered Grahek’s house with
Baker and King. Davenport makes no argument that those circumstances support any other
conclusion than that he intended to aid and abet the robbery and burglary of Grahek. Stated
another way, Davenport’s argument that he lacked intent is based on facts that are not part
of the circumstances proved in this case. We therefore hold that the State presented
sufficient evidence that Davenport knew Baker and King were going to commit a robbery
or burglary and intended his presence or actions to further the commission of the crime.
III.
Finally, Davenport argues that his conv iction should be reversed because the
indictment against him was fatally flawed. Because we conclude that any flaws in the
indictment did not prejudice Davenport’s s ubstantial rights, we reject Davenport’s
argument.

22
On December 4, 2017, Davenp ort moved to dismiss the indictment. He argued that
the indictment failed to allege that Davenport intended to kill Grahek, which is an element
of felony murder. He furthe r argued that the indictment violated Minn. Stat. § 630.18(2)
(2018) because it did not include the names of the witnesses who testified before the grand
jury. At the end of Decembe r, the State and Davenport stipulated to the release of the
complete record of the grand jury proceedings in part to cure “an alleged defect in form on
the face of the Indictments.” On January 4, 2 018, the district court ordered the release of
the grand jury record. Dave nport subsequently moved a second time to dismiss the
indictment, this time for lack of probable cause. On March 8, the district court denied both
of Davenport’s motions to dismiss the indictment.
“When challenging an indictment, the de fendant bears a heavy burden and only in
rare cases will an indictment be invalidated.” State v. Miller, 754 N.W.2d 686, 698 (Minn.
2008) (citation omitted) (internal quotation ma rks omitted). On appeal, “[t]his heavy
burden is heightened when the defendant has been found guilty beyond a reasonable doubt
following a fair trial.” Id. (citation omitted) (internal quotations marks omitted). Further,
“[n]o charging document will be dismisse d nor will the trial, judgment, or other
proceedings be affected by reason of a defect or imperfection in matters of form that does
not prejudice the defendant’s substantial rights .” Minn. R. Crim. P. 17.06, subd. 1; see
also Minn. Stat. § 630.18 (2018) (stating that th e statutory grounds fo r dismissal of an
indictment are subject to the provisions of Minnesota Rule of Criminal Procedure 17.06,
subdivision 1, and the harmless error rule set forth in Minnesot a Rule of Criminal
Procedure 31.01). A “conviction after a fair trial will stand unless there is actual proof that

23
[the] defendant has in fact been misled as to the charge brought against him, to his
prejudice.” State v. Bias, 419 N.W.2d 480, 486 (Minn. 1988).
There is no dispute that the State violated section 630.18(2), which requires that an
indictment be dismissed “upon the defendant’s motion . . . when the names of the witnesses
examined before the grand jury are not inserted at the foot of the indictment or endorsed
thereon.” The State did not identify the names of the grand jury witnesses in the indictment.
The statutory violation, however, did not vi olate Davenport’s substantial rights. We
have identified multiple purposes served by section 630.18(2). We have said that
the purpose of the statute in requiring th e insertion on the indictment of the
names of the witnesses appearing before the grand jury is to allow for a
testing of the sufficiency of the evidence upon which the indictment is based.
It is not a tool to assist the defendant in preparing for trial.

State v. Drews , 144 N.W.2d 251, 257 (Minn. 1966); see also Wayne R. LaFave, et al.,
Criminal Procedure § 20.1(a) n.6 (4th ed. 2015) (sta ting that “provisions requiring the
listing of grand jury witnesses on the indictme nt . . . were designed primarily to ensure
adequate grand jury screening . . . rather than to provide the defense with discovery of the
prosecution’s case). We have also stated that
the main purpose of this requirement is to advise the defendant of the names
of witnesses who may be called by the state upon the trial of the indictment,
so as to afford him an opportunity to contact them, if he so desires, and to
ascertain, if possible, what their testimony will be.

State v. Gorman, 17 N.W.2d 42, 47 (Minn. 1944).
The State’s failure to list the grand jury witnesses in the indictment did not interfere
with either of these purposes. The district co urt made the full transcript of the grand jury
proceedings available to the de fense. Davenport was therefore apprised of the names of

24
the witnesses who testified against him duri ng the grand jury proceedings. Notably,
Davenport also could have requ ested and obtained the names of the grand jury witnesses
under Minn. R. Crim. P. 9.01, subd. 1(1)(c). He was fully able to te st the sufficiency of
the evidence upon which the indictment was ba sed (in fact, he filed a motion doing just
that) and to prepare for trial. His substantia l rights were not prejudiced by the failure to
list the grand jury witnesses in the indictment.
Davenport’s vagueness argument is equally unavailing. An indictment shall contain
“a statement of the acts constituting the offense, in ordinary and concise language, without
repetition.” Minn. Stat. § 628.10(2) (2018). “It shall be direct and certain as it regards:
(1) the party charged; (2) the offense charge d; (3) the particular circumstances of the
offense charged, when they ar e necessary to constitute a comp lete offense.” Minn. Stat.
§ 628.12 (2018). We will reverse only when “t he charge was so vague as to make it
impossible for the defendant to defend himself.” Bias, 419 N.W.2d at 486.
The indictment here was not so vague as to make it impossible for Davenport to
defend himself. The indictment contained the following information: the date and location
of the offense; the crimes with which Davenport was charged; the statute under which each
crime was charged; the anticipated penalty for each crime; and short descriptions charging
Davenport with the murder of Grahek under an aiding and abetting theory while conspiring
to commit or attempting to commit first-de gree burglary and first- degree aggravated
robbery. This information was sufficient to eliminate the risk of double jeopardy and
apprise Davenport of the charges brought against him. See State v. Hallmark, 927 N.W.2d
281, 302 (Minn. 2019); Bias, 419 N.W.2d at 486–87.

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CONCLUSION
For the foregoing reasons, we affirm the judgment of Davenport’s conviction.
Affirmed.
MOORE, J., not having been a member of this court at the time of submission, took
no part in the consideration or decision of this case.