State of Minnesota, Respondent,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A22-0152

State of Minnesota,
Respondent,

vs.

David James Whitebird, Jr.,
Appellant

Filed January 3, 2023
Affirmed
Frisch, Judge

Cass County District Court
File No. 11-CR-21-1248

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

Benjamin T. Lindstrom, Cass County Attorney, Walker, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Benjamin J. Butler, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Slieter, Presiding Judge; Reyes, Judge; and Frisch,
Judge.
NONPRECEDENTIAL OPINION
FRISCH, Judge
Following his convictions for aiding and abetting first-degree burglary and fourth-
degree criminal damage to property, appellant argues that he is entitled to a new trial
because the district court erroneously instructed the jury on an aiding and abetting theory
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of liability not argued by the state or supported by the evidence at trial. Because any error
in instructing the jury did not affect appellant’s substantial rights or the fairness and
integrity of the proceedings, we affirm.
FACTS
On September 24, 2021, respondent State of Minnesota charged appellant David
James Whitebird with one count of first-degree burglary either as a principal or as an
accomplice in violation of Minn. Stat. § 609.582, subd. 1(c) (2020), and one count of
criminal damage to property in violation of Minn. Stat. § 609.595, subd. 3 (2020). The
state alleged that on July 28, 2021, Whitebird and B.B. entered a house without consent
and assaulted C.D. The state further alleged that Whitebird later broke a window of C.D.’s
truck. At trial, the jury heard testimony fro m C.D., his mother C.A., C.D.’s girlfriend
K.W., Whitebird’s girlfriend T.W., and the deputy who responded to the incident that night.
The jury’s verdict was based on the following evidence presented at trial.
C.D. testified that he was at his mother’s house the night of the incident. C.D. stated
that Whitebird and B.B. entered the house without permission, and they both physically
assaulted him. C.A. testified that she saw Whitebird and B.B. in her home, did not give
either permission to enter the home, witnessed Whitebird assaulting C.D. in the home, and
was able to throw Whitebird off C.D. She testified that she later saw Whitebird break a
window on C.D.’s truck outside her house. C.D.’s girlfriend K.W. testified that she was at
C.A.’s house the night of the incident, and she witnessed Whitebird, B.B., and C.D. fighting
at the house.
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The officer who responded to the incident testified that he observed that C.D. had
injuries and was bloody, and there was blood in the house. C.D. told the officer that
Whitebird and B.B. had assaulted him. The officer tried to locate Whitebird by checking
local residences and roads, including Whitebird’s residence, but the officer did not locate
Whitebird. Later that same night, the officer arrived at C.A.’s house in response to a report
of a broken window on C.D.’s truck. The officer observed the broken window , and C.A.
provided a statement to the officer that she saw Whitebird break the window.
Whitebird’s girlfriend T.W. testified that Whitebird was with her the evening of the
incident, and that he did not go to C.A.’s house that night. T.W. said that she and Whitebird
were sleeping at Whitebird’s house when B.B. woke them by knocking on the door. B.B.
tried to convince Whitebird “into going down to [C.A.’s house] to have his back.” B.B.
told them that he had been at C.A.’s house before arriving at Whitebird’s house. Whitebird
and T.W. started walking with B.B. to C.A.’s house. T.W. tried to talk Whitebird out of
going to C.A.’s house because she “had a bad feeling.” About halfway to C.A.’s house,
T.W. turned around, and “not three seconds later,” Whitebird joined her to return to his
house. T.W. said she did not recall police at Whitebird’s house that night and that
Whitebird remained with her the entire evening.
In both its opening statement and closing argument, the state presented to the jury
its theory of principal liability against Whitebird for the burglary charge. The state made
no reference to or argument in support of an accomplice-liability theory in either opening
statement or closing argument. After closing arguments, the district court issued jury
instructions that included instructions on liability as a principal and as an accomplice for
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the burglary charge. The jury found Whitebird guilty of first- degree burglary and fourth-
degree criminal property damage. Whitebird moved for a new trial based on erroneous
jury instructions. The district court denied Whitebird’s motion.
Whitebird appeals.
DECISION
Whitebird argues that the district court erred in instructing the jury on an aiding and
abetting theory because (1) the instructions suggested that the jury could find Whitebird
guilty even if the state did not prove every element of the offense beyond a reasonable
doubt, and (2) the state did not offer evidence or argument in support of an aiding and
abetting theory.
Because Whitebird did not object to the jury instructions on these grounds during
trial, we consider whether the district court’s instructions amount to a plain error, and if so
whether the error affected Whitebird’s substantial rights. State v. Zinski, 927 N.W.2d 272,
275 (Minn. 2019). If Whitebird establishes that the district court committed plain error
affecting his substantial rights, we may correct the error “only if it seriously affects the
fairness, integrity, or public reputation of judicial proceedings.” State v. Mouelle, 922
N.W.2d 706, 718 (Minn. 2019). We address each of Whitebird’s arguments in turn.
I. The jury instruction did not alter the state’s burden to prove every element of
the offense beyond a reasonable doubt.

Whitebird first argues that the district court erroneously instructed the jury by
suggesting that the jury could find Whitebird guilty of burglary even if the state did not
prove every element of the offense beyond a reasonable doubt. “[I]t is error if the
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instructions confuse, mislead, or materially misstate the law.” State v. Smith, 674 N.W.2d
398, 401- 02 (Minn. 2004). We review the jury instructions as a whole to determine
whether the instructions fairly and adequately explain the law. State v. Kelley, 855 N.W.2d
269, 274 (Minn. 2014). 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.
Ramey, 721 N.W.2d 294, 302 (Minn. 2006). The law we consider is “the law in existence
at the time of appellate review.” Kelley, 855 N.W.2d at 277.
After instructing the jury as to the substantive elements of the offense of first-degree
burglary under Minn. Stat. § 609.582, subd. 1(c), the district court stated:
If you find that each of these elements has been proven beyond
a reasonable doubt, the defendant is guilty. If you find that any
element has not been proven beyond a reasonable doubt, the
defendant is not guilty, unless you find that the State has
proven beyond a reasonable doubt that the defendant is liable
for this crime committed by another person according to the
following instruction.

The district court continued its instructions, stating:
[I]f you have found that the State has proven all of the elements
of burglary in the first degree, you need not consider this
liability for crimes of another. If, however, you have found
that not all the elements have been independently proven, you
must consider liability for crimes of another.

Whitebird argues that these instructions directed the jury that the state was not required to
prove all elements of the burglary offense beyond a reasonable doubt and suggested the
jury was permitted to return a guilty verdict in the absence of proof beyond a reasonable
doubt on all the elements of the offense. We disagree.
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When viewed as a whole, the district court fairly and adequately instructed the jury
that the state must prove all elements of the burglary offense beyond a reasonable doubt.
The district court prefaced the instructions of the substantive offenses by stating that it was
about to set forth “the law regarding the offenses charged and the elements which the State
must prove beyond a reasonable doubt in order for [the jury] to return a verdict of guilty.”
The district court then instructed the jury as to the elements of the burglary offense as a
principal and again reminded the jury that it could only find Whitebird guilty of the offense
as a principal if the state proved each listed element beyond a reasonable doubt. The district
court separately instructed the jury as to a different means for commission of the burglary
offense, as an accomplice. See State v. Ezeka, 946 N.W.2d 393, 407-08 (Minn. 2020) (“We
have long held that aiding and abetting is not a separate substantive offense. Instead, it is
a theory of criminal liability.” (quotations omitted)). In the accomplice instruction, the
district court explicitly instructed the jury that Whitebird “is guilty of burglary in the first
degree . . . only if the other person commits that crime” and that the “State has a burden of
proving beyond a reasonable doubt that the defendant intentionally aided another person
in committing the crime of burglary in the first degree,” the elements and burden of proof
which the district court had previously listed. As a whole, these instructions fairly and
adequately informed the jury that, regardless of whether the means of the offense involved
actions as a principal or as an accomplice, the state was required to prove every element of
the burglary offense beyond a reasonable doubt. Thus, the jury instructions did not misstate
the law or relieve the state of its burden to prove all elements of the burglary offense beyond
a reasonable doubt.
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II. The district court committed plain error in instructing the jury regarding an
aiding and abetting theory of liability, but such error did not affect Whitebird’s
substantial rights and a new trial is not necessary to ensure the fairness and
integrity of the proceedings.

Plain Error
Whitebird argues that the district court plainly erred in instructing the jury on an
aiding and abetting theory of liability when the state did not present evidence of or pursue
such a theory of liability at trial. We agree.
In Ezeka, the supreme court determined that a district court errs in instructing a jury
on an aiding and abetting theory of liability in the absence of evidence that the defendant
acted as an accomplice and where the state argued at trial that the defendant was directly
liable for his actions as a principal. Id. at 408. Like the circumstances in Ezeka, the state
here argued at trial that Whitebird was liable as a principal and presented no evidence or
argument that Whitebird acted as an accomplice. On appeal, the state does not argue that
Whitebird was guilty as an accomplice, nor does the state dispute that the evidence at trial
only supported a finding of Whitebird’s guilt as a principal.1 Thus, “there was no need for
the district court to instruct the jurors on an aiding and abetting theory of criminal liability,”
and the aiding and abetting instruction was plainly erroneous. Id.

1 On appeal, the state suggests that potential uncertainty about the scope or substance of
Whitebird’s alibi evidence at trial justified the aiding and abetting instruction. While such
uncertainty may have justified the proposal of the aiding and abetting instruction before
all of the evidence was received, that same uncertainty did not justify the delivery of the
instruction after the close of the evidence when none of that evidence justified such an
instruction and the state did not argue that theory of liability at trial.
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Effect on Substantial Rights
Whitebird argues the plain error in the district court’s issuance of the aiding and
abetting instruction affected his substantial rights because the instruction afforded the jury
the ability to convict him as an accomplice in the absence of evidence or argument
supporting such a conviction.2
A plain error affects a defendant’s substantial rights when “there is a reasonable
likelihood that the giving of the instruction in question had a significant effect on the jury
verdict.” State v. Gomez, 721 N.W.2d 871, 880 (Minn. 2006). A defendant generally bears
the burden of persuasion to demonstrate that a plain error affected their substantial rights.
Ramey, 721 N.W.2d at 301-02 (explaining that except in the case of prosecutorial
misconduct, a defendant bears the burden of showing that the error affected a substantial
right). Whitebird has not met that burden.
The erroneously issued instruction did not affect Whitebird’s substantial rights. The
aiding and abetting instruction relates only to the alternative means of the commission of
the offense and did not afford the jury the option to convict Whitebird for a separate
criminal offense. See Ezeka, 946 N.W.2d at 407-08. Even so, the parties do not dispute
that the evidence at trial only supported a theory of liability as a principal, not as an
accomplice—indeed, that is the cornerstone of Whitebird’s argument on appeal. And the
state only asked the jury to convict based on a principal-liability theory. Accordingly,

2 Whitebird also argues that the plainly erroneous instruction affected his substantial rights
because it allowed the jury to find him guilty without proving all the elements of the offense
beyond a reasonable doubt. We have already considered and rejected this argument above.
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Whitebird has not met his burden to establish that there is a reasonable likelihood that the
accomplice liability instruction had a significant effect on the jury’s verdict because the
evidence could only reasonably support a conclusion that the jury believed and relied upon
evidence that Whitebird was the principal. See State v. Shamp, 427 N.W.2d 228, 230-3 1
(Minn. 1988).
Whitebird cites State v. Khalil, 956 N.W.2d 627, 643 (Minn. 2021), in support of
his argument that the instruction affected his substantial rights because it is impossible to
discern whether the jury relied on the erroneously issued instruction. But unlike this case,
Khalil involved an instruction containing an affirmative misstatement of the law. And
Whitebird cites no authority to support a conclusion that, where sufficient evidence
supports the jury’s verdict as to principal liability for an offense, an erroneously issued
instruction regarding alternative means to commit that offense affects a defendant’s
substantial rights. Cf. State v. Ihle, 640 N.W.2d 910, 918 (Minn. 2002) (recognizing “the
jury need not always decide unanimously which of several possible means the defendant
used to commit the offense in order to conclude that an element has been proved beyond a
reasonable doubt” (citing Richardson v. United States, 526 U.S. 813, 817-18 (1999)); State
v. Begbie, 415 N.W.2d 103, 106 (Minn. App. 1987), rev. denied (Minn. Jan. 20, 1988)
(same); see also State v. Rucker, 752 N.W.2d 538, 548-49 (Minn. App. 2008) (holding jury
verdict was not unfair when there was insufficient evidence of some alleged acts and the
charged crime did not entitle defendant to know the specifically alleged acts for which he
was convicted), rev. denied (Minn. Sept. 23, 2008). Accordingly, we do not discern that
the accomplice liability instruction affected Whitebird’s substantial rights.
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Fairness and Integrity of Proceedings

Even if the identified plain error affected Whitebird’s substantial rights, we “may
correct the error only if it seriously affects the fairness, integrity, or public reputation of
judicial proceedings.” Mouelle, 922 N.W.2d at 718. We do not discern that the error
seriously affected the fairness or integrity of the proceedings.
Whitebird was aware of the possibility that the state may pursue an accomplice-
liability theory at trial, and he squarely addressed that theory in the presentation of his case.
The complaint placed Whitebird on notice of the accomplice-liability theory. At trial,
Whitebird asserted in his opening statement that the evidence would not support an aiding
and abetting theory of liability. Whitebird presented affirmative evidence during trial
undermining an aiding and abetting theory of liability. After the close of the evidence at
trial when it became clear that the state did not present evidence or argument in support of
an aiding and abetting theory of liability, Whitebird nevertheless argued to the jury in
closing argument that the state had failed to meet its burden to prove such a theory beyond
a reasonable doubt. While the evidence does not support a theory of accomplice liability,
the state introduced significant direct evidence at trial to support Whitebird’s liability for
burglary as a principal. Based on the evidence and argument at trial, there is a reasonable
likelihood that the jury convicted Whitebird as a principal and we find no basis to conclude
the erroneously issued accomplice-liability instruction seriously affected the fairness and
integrity of the proceedings.
Affirmed.