State of Minnesota,

1
STATE OF MINNESOTA
IN SUPREME COURT
A22-0303

Hennepin County Anderson, J.

State of Minnesota,

Respondent,

vs. Filed: July 19, 2023
Office of Appellate Courts
Xavier Demond Gilleylen,

Appellant.

________________________

Keith Ellison, Attorney General, Saint Paul, Minnesota; and

Mary F. Moriarty , Hennepin County Attorney, Jonathan P. Schmidt, Assistant County
Attorney, Minneapolis, Minnesota, for respondent.

Cathryn Middlebrook, Chief Appellate Public Defender, Sara L. Martin, Assistant Public
Defender, Saint Paul, Minnesota, for appellant.

________________________

S Y L L A B U S
1. The State presented sufficient evidence to prove beyond a reasonable doubt
that defendant committed premeditated murder.
2. The district court did not violate defendant’s constitutional right to confront
witnesses by preventing defense counsel from telling the jury that before accepting a plea
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agreement, the testifying codefendant faced a mandatory life sentence without the
possibility of release, when the district court allowed extensive cross-examination about
other aspects of the plea agreement and sufficiently communicated the potential bias of the
codefendant.
3. Although the district court may have erred by not identifying the testifying
codefendant as an accomplice in its jury instructions, the unobjected-to error did not affect
defendant’s substantial rights.
4. The district court did not abuse its discretion by giving a jury instruction that
limited the jury’s use of evidence that was admitted to test the thoroughness of the
investigation conducted by law enforcement.
5. Because defendant failed to establish more than one trial error, his
cumulative effect argument fails.
6. The district court erred by entering a judgment of conviction for
second-degree intentional murder because this offense is a lesser-included offense of
first-degree premeditated murder, an offense for which defendant was also convicted.
Affirmed in part, reversed in part, and remanded.
O P I N I O N
ANDERSON, Justice.
Appellant Xavier Demond Gilleylen appeals convictions of first-degree
premeditated murder and second-degree intentional murder following a jury trial.
Gilleylen argues that the evidence was insufficient to prove the element of premeditation
for the first-degree murder offense and that he was deprived of a fair trial because the
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district court committed reversible error in managing the trial and the jury instructions.
Because the State presented sufficient evidence and the district court did not commit any
error requiring reversal regarding the first-degree premeditated murder count, we affirm
the conviction of first-degree premediated murder. We reverse and remand to the district
court, however, because the district court erred in entering a conviction for the
lesser-included offense of second-degree intentional murder.
FACTS
On November 9, 2019, Dionte Hubbard was fatally shot in a Minneapolis alley.
Following a police investigation, the State alleged the following facts. At the time of the
shooting, Dayton Robinson was driving a Honda Accord with Gilleylen in the back seat
and a third occupant in the front passenger seat. Gilleylen shot at a Chevy Impala driven
by Hubbard. A car chase ensued and both vehicles crashed. Gilleylen then got out of the
Accord, chased Hubbard, and fatally shot Hubbard in the head. The subsequent police
investigation led to the arrest and charging of Gilleylen and Robinson. The front seat
passenger was a suspect, but never charged. Two other initial suspects were also ruled out
by police in the process of arresting and charging Gilleylen and Robinson. First, when the
police arrived at the scene, they arrested J.W., a person walking in the neighborhood , but
later released him after determining that he had an alibi for the time of the shooting.
Second, during the course of their investigation, the police located the firearm used in the
shooting a few blocks from the crime scene and determined that the magazine of the firearm
had a partial fingerprint that matched the known fingerprint of C.J., but he could not be
placed at the scene of the shooting.
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Based on the police investigation, a grand jury indicted Robinson and Gilleylen with
first-degree premeditated murder, Minn. Stat. § 609.185(a)(1) (2022), and second -degree
intentional murder, Minn. Stat. § 609.19, subd. 1(1) (2022), alleging both principal and
accomplice liability. See Minn. Stat. § 609.05 (2022) (“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.”). The mandatory
sentence for the first- degree premediated murder offense is life in prison without the
possibility of release. Minn. Stat. § 609.106, subd. 2 (2022).
Pursuant to a plea agreement, Robinson pleaded guilty to an amended charge of
aiding an offender after the fact, Minn. Stat. § 609.495, subd. 3 (2022). In accordance with
the plea agreement, Robinson would receive a sentence of 60 months in prison.
Gilleylen pleaded not guilty and demanded a jury trial. Before trial, defense counsel
provided the State with written notice that Gilleylen intended to assert an
alternative-perpetrator defense, listing three possible alternative perpetrators: Robinson,
J.W., and the front seat passenger of the Accord. Defense counsel did not list C.J. as a
possible alternative perpetrator.
At trial, the State presented eyewitness testimony—including Robinson’s
testimony—and other evidence to establish the following facts. Robinson was driving the
Accord, with another passenger in the front and Gilleylen in the back seat. When Robinson
pulled up next to a Chevy Impala driven by Hubbard, Gilleylen began shooting at the
Impala. The Accord and Impala sped down the street and crashed. Hubbard then fled the
crashed Impala, running past the Accord and into an alley. The occupants of the Accord
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also fled. Gilleylen first ran away from the Accord and then back towards it. When
Hubbard ran by the Accord, Gilleylen shot five times as he followed Hubbard. At one
point as Gilleylen was shooting, he took a shooter’s stance, aimed, and shot Hubbard.
Gilleylen fled as Hubbard laid in an alley until assistance arrived. Hubbard suffered two
gunshot wounds—one to his head and the other to his right index finger.
Surveillance cameras captured footage of parts of the incident, but the fatal shooting
occurred beyond the view of the cameras. No firearm was found on Hubbard’s body, but
police found eight discharged cartridge casings, some located where the car chase began
and others in the alley. Police determined that the eight discharged cartridge casings were
all fired from a firearm that the police found a few blocks away.
Other evidence also tied Gilleylen to the Accord at the time of the shooting. The
owner of the Accord testified that she and Gilleylen purchased the Accord together,
Gilleylen used the car the most, and the car was in Gilleylen’s possession on the day of the
shooting. Her testimony was corroborated by the fact that police found Gilleylen’s school
supplies and a phone associated with Gilleylen in the backseat of the crashed Accord. She
also testified that Gilleylen and Robinson were supposed to meet up with her the day of the
shooting to help her move a friend, but they never showed up. After the shooting, Gilleylen
contacted her to tell her to report the Accord as stolen. Additionally, analysis of cell phone
data showed the phone associated with Gilleylen traveled with Robinson’s phone and the
phone of the front seat passenger the afternoon of the shooting.
Robinson, the only witness who identified Gilleylen as present at the shooting ,
testified that he was driving the Accord, and Gilleylen instructed him to pull up next to the
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Impala at a stop sign. Gilleylen shot at the Impala. When Robinson heard the gun shots,
he stepped on the gas, and eventually crashed the Accord into another car. After getting
out of the Accord, Robinson ran into an alley. Gilleylen, who was running down the alley
behind Robinson, continued to shoot. Gilleylen and Robinson then ran to the home of an
acquaintance where the police later found the gun used in the shooting.
During Robinson’s testimony, the district court limited defense counsel’s
cross-examination regarding the sentence of life without the possibility of release that he
faced before he accepted the State’s plea offer. The court was concerned that a discussion
of Robinson’s possible life sentence would “identify the sentence that the defendant is
facing” and noted that “[s]entencing is not a proper consideration for the jury and it should
not be admitted either directly or indirectly.”1 Defense counsel objected to the limitation.
In the alternative, defense counsel argued that, at a minimum, he should be allowed to ask
Robinson whether his plea agreement reduced the sentence he was facing before the
agreement by 95 precent. The court permitted defense counsel to cross-examine Robinson
using the claim that Robinson’s deal was “a 95 percent discount” and “a significant
discount or agreement.”
The district court also limited defense counsel’s use of a photograph of C.J. in
defense counsel’s cross-examination of police investigators. When defense counsel stated
that he intended to cross-examine the police investigators about a photograph of C.J. that

1 See State v. Chambers, 589 N.W.2d 466, 474 (Minn. 1999) (explaining that
“sentencing is not a proper consideration for the jury”).
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investigators showed to certain eyewitnesses,2 the State objected. The State argued that
any evidence related to C.J. was irrelevant because the written notice that Gilleylen
provided the State regarding Gilleylen’s alternative-perpetrator defense did not list C.J. as
an alternative perpetrator. Moreover, Gilleylen could not place C.J. at the scene of the
crime, which is one of the requirements for the admission of alternative-perpetrator
evidence. The State did acknowledge, however, that the court had already admitted, over
the State’s objection, C.J.’s partial fingerprint on the gun magazine that matched the known
fingerprint of C.J. In response to the State’s argument, defense counsel reaffirmed that
Gilleylen did not intend to argue that C.J. was an alternative perpetrator. Nevertheless,
defense counsel argued that the proposed cross-examination regarding C.J.’s photograph
was relevant to whether the police conducted a thorough investigation. After considering
the parties’ arguments, the district court allowed defense counsel to cross-examine the
investigator about the photograph but prohibited defense counsel from showing the
photograph to the jury. Thus, the investigator was asked about the partial fingerprint and
photograph.
Following the close of evidence, the district court, in instructing the jury, provided
three instructions that are relevant here. First, the court instructed the jury about evaluating
testimony and the “believability of witnesses.” In doing so, the court specified that the jury
could consider, among other factors, whether a witness will “gain or lose if this case is
decided in a certain way.” Second, the court instructed the jury that it needed to determine

2 In the photograph, C.J.’s hairstyle matched the descriptions of the shooter provided
by certain eyewitness, which described the shooter as having “dreadlocks or braids.”
8
whether Robinson was an accomplice. The court explained that if the jury found that
Robinson was an accomplice, the jury could rely on Robinson’s testimony only if his
testimony was corroborated by other evidence. Third, the court instructed the jury that
certain testimony (specifically, testimony regarding C.J.’s fingerprint and photograph, and
testimony regarding the description of the shooter and an identification of J.W. from
non-testifying witnesses) could be used only to test the thoroughness of the police
investigation. Although defense counsel did not object to the first two instructions, he did
object to the third instruction. The district court overruled the objection.
The jury found Gilleylen guilty of first -degree premeditated murder and
second-degree intentional murder. T he court entered judgments of conviction for both
offenses, but sentenced Gilleylen only for the first-degree premeditated murder conviction,
imposing the mandatory sentence of life in prison without the possibility of release.
On direct appeal, Gilleylen makes five arguments. We consider each argument in
turn, as well as whether Gilleylen could be convicted of both first -degree premeditated
murder and second-degree intentional murder.
ANALYSIS
I.
Gilleylen first argues that the State failed to prove beyond a reasonable doubt that
he premeditated the killing of Hubbard, and thus his conviction of first-degree murder must
be reversed. We disagree.
“[W]e view the evidence in a light most favorable to the verdict and assume the
fact-finder disbelieved any testimony conflicting with that verdict,” in determining whether
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sufficient evidence supports the jury’s guilty verdict. State v. Chomnarith, 654 N.W.2d
660, 664 (Minn. 2003). We will not overturn a verdict “if, giving due regard to the
presumption of innocence and to the prosecution’s burden of proving guilt beyond a
reasonable doubt, the jury could reasonably have found the defendant guilty of the charged
offense.” Id.
In evaluating the sufficiency of circumstantial evidence, we apply a two-step
process. State v. Hassan, 977 N.W.2d 633, 640 (Minn. 2022). Step one involves
identifying “the circumstances proved.” Id. In doing so, we “winnow down the evidence
presented at trial” to a “subset of facts” that is consistent with the jury’s verdict and
“disregard evidence that is inconsistent with the jury’s verdict.” State v. Harris,
895 N.W.2d 592, 600–01 (Minn. 2017). The jury is “the sole judge of credibility” and “ ‘is
free to accept part and reject part’ of the testimony of a particular witness.” Hassan,
977 N.W.2d at 640 (quoting Coker v. Jesson, 831 N.W.2d 483, 492 (Minn. 2013)).
Second, we analyze “whether ‘the circumstances proved are consistent with the hypothesis
that the accused is guilty and inconsistent with any rational hypothesis other than guilt. ’ ”
State v. Balandin, 944 N.W.2d 204, 213 (Minn. 2020) (quoting State v. Leake, 699 N.W.2d
312, 319 (Minn. 2005)). A defendant may not rely on “conjecture” or “speculation” to set
aside a verdict. See State v. Al-Naseer, 788 N.W.2d 469, 480 (Minn. 2010).
Gilleylen challenges the sufficiency of the evidence that the killing was
premeditated. To be guilty of first-degree murder, a person must “cause[] the death of a
human being with premeditation and with intent to effect the death of the person or of
another.” Minn. Stat. § 609.185(a)(1). As defined by the Legislature, premeditation
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“means to consider, plan or prepare for, or determine to commit, the act referred to prior to
its commission.” Minn. Stat. § 609.18 (2022).
“[P]remeditation is ‘generally proven through circumstantial evidence,’ and is often
inferred from the totality of circumstances surrounding the killing.” State v. Hughes,
749 N.W.2d 307, 312 (Minn. 2008) (quoting Leake, 699 N.W.2d at 319). We “examine
the circumstantial evidence in accord with the three categories of evidence our precedent
recognizes as relevant to an inference of premeditation: planning activity, motive, and the
nature of the killing.” Id. at 313. “P remeditation does not require proof of extensive
planning or preparation, nor does it demand that a specific time period elapse for
deliberation.” State v. Cox, 884 N.W.2d 400, 412 (Minn. 2016). But the State must
“establish that there was some appreciable passage of time between a defendant’s
formation of the intent to kill and the act of killing, and that during this time defendant
deliberated about the act.” Id. “While evidence of motive is relevant, it is unnecessary to
a finding of premeditation.” Id. When considering planning activity, we evaluate the
defendant’s actions prior to the actual killing. Hughes, 749 N.W.2d at 313; State v.
Petersen, 910 N.W.2d 1, 7–8 (Minn. 2018) (collecting decisions). As for the nature of the
killing, we consider “the number of times the defendant used the weapon, the deliberate
placement of wounds at vital areas of the victim’s body, the infliction of gunshot wounds
at close range, and a defendant’s concern with escape rather than aiding the victim.” State
v. Holliday, 745 N.W.2d 556, 563–64 (Minn. 2008) (citations omitted).
Here, the circumstances proved are as follows . Robinson drove Gilleylen and the
front seat passenger in a Honda Accord the day of the shooting. While driving, they came
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upon a Chevy Impala driven by Hubbard. Gilleylen instructed Robinson to drive up to the
Impala. As Robinson drove towards the Impala, Gilleylen shot at the Impala three times.
A car chase ensued and resulted in both cars crashing. Gilleylen left the Accord, first
running away from the Accord, then running back to it. Hubbard left the Impala and ran
past the Accord down the sidewalk and then into an alley. Gilleylen chased Hubbard. At
one point, Gilleylen stopped, took a shooter’s stance, aimed, and fired at Hubbard, hitting
Hubbard in the back of the head. Gilleylen followed his shot, and Hubbard, into the alley
where Hubbard’s body was found. Gilleylen then immediately fled and hid the gun. Police
did not find a gun on Hubbard’s body, and all eight discharged cartridge casings recovered
at the scene were fired from the same gun.
As a whole, the circumstances proved regarding planning and the nature of the
killing support the jury’s verdict that Gilleylen acted with premeditation, and these
circumstances proved do not support a contrary inference. First, Gilleylen remained near
the crashed vehicles and then chased Hubbard as Gilleylen fired his weapon. See State v.
Vang, 774 N.W.2d 566, 583 (Minn. 2009) (stating that evidence that the defendant chased
the victim, took aim, and fired nine shots supported the jury’s determination of
premeditation); see also State v. Amos, 347 N.W.2d 498, 501 (Minn. 1984) (determining
that a finding of premeditation was supported when the defendant had grabbed a gun, ran
across a street, and shot his victim); State v. Richardson, 393 N.W.2d 657, 665
(Minn. 1986) (concluding that there was sufficient evidence to support premeditation when
the “defendant had to make the decision to chase after [the victim] and fire the last two or
three shots”). Second, that one of the shots fired by Gilleylen hit Hubbard in the back of
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the head supports a finding of premeditation when considering that Gilleylen took a
shooter’s stance and aimed as he fired his gun at Hubbard. See Holliday, 745 N.W.2d at
563 (identifying “the deliberate placement of wounds at vital areas of the victim’s body”
as evidence of nature of the killing). Third, Gilleylen immediately fled the scene, hid the
gun, and did not provide aid to Hubbard, who had fallen after he was shot in the head. See
State v. McArthur, 730 N.W.2d 44, 50 (Minn. 2007) (noting that “a defendant’s concern
with escape rather than with rendering aid to the victim” is relevant to analyzing the nature
of the killing). Fourth, Gilleylen fired a total of eight shots, and we have recognized that
“the number of times the defendant used the weapon” is relevant to assessing the nature of
the killing. See State v. Moua, 678 N.W.2d 29, 41 (Minn. 2004).
Gilleylen argues that the circumstances proved support a reasonable inference that
he acted impulsively in the heat of a chaotic incident. His argument is unavailing because
it fails to focus on reasonable inferences that can be drawn from the circumstances proved
as a whole, and instead focuses on the lack of extensive planning and motive. But as
explained earlier, the State is not required to show extensive planning or motive to prove
premeditation. Cox, 884 N.W.2d at 412. Rather, the State need only establish that “there
was some appreciable passage of time between a defendant’s formation of the intent to kill
and the act of killing, and that during this time defendant deliberated about the act.” Id.
Gilleylen also makes various arguments regarding why he had a gun in the
Accord—reasons that he contends had nothing to do with Hubbard. The circumstances
proved, however, show that Gilleylen took the gun from the Accord, ran towards Hubbard,
took a shooter’s stance, aimed, and fired the gun at Hubbard several times, killing Hubbard
13
with a shot to the head. Consequently, even if Gilleylen did not place the gun in the Accord
as part of a plan to kill Hubbard, only one reasonable inference can be drawn from the
actions he took after the Accord crash—specifically, that Gilleylen deliberated about the
act of killing Hubbard for some appreciable amount of time.
Gilleylen also relies on Robinson’s testimony that he thought someone in the Impala
was returning fire, along with physical evidence showing the window of the Accord was
damaged. The parties disputed whether the physical evidence supported Robinson’s
testimony. According to the State, the damage was caused by Gilleylen shooting the gun.
According to Gilleylen, it was caused by someone else shooting at the individuals in the
Accord. Because the testimony and physical evidence that Gilleylen was responding to
others shooting at the Accord are inconsistent with the jury’s guilty verdict, this evidence
is not part of the circumstances proved. Thus, we disregard this evidence that Gilleylen
relies on in our sufficiency analysis. See Hassan, 977 N.W.2d at 641 (“To the extent that
[the defendant] invokes evidentiary inconsistencies, even inconsistencies in the testimony
of one witness, we must resolve those inconsistencies in favor of the jury’s verdict.”).
Gilleylen further argue s that the nature of the killing could be equally consistent
with the inference that he did not deliberately plan to murder Hubbard. He contends that
the fact that a bullet struck Hubbard in the back of the head is not indicative of careful aim
and that the eight shots fired by Gilleylen is consistent with the theory that Gilleylen
thought someone was shooting at him. These arguments are not persuasive.
Gilleylen does not explain how chasing Hubbard, taking a shooter’s stance, aiming,
firing, and fleeing as Hubbard fell to the ground after Gilleylen fired eight times reasonably
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leads to an inference of a lack of premeditation because of confusion and chaos. See State
v. Cooper, 561 N.W.2d 175, 180 (Minn. 1997) (noting the fact that the defendant “fired at
[the victim] at least twelve separate times and was then only concerned with fleeing the
scene as quickly as possible” as support for the conclusion that “the only rational
hypothesis to be drawn from the evidence was that the killing was premeditated”). The
circumstances proved support a reasonable inference of premeditation and fail to support
a reasonable inference of impulsivity or some other non-premeditation theory. The State
provided sufficient evidence of premeditation.
II.
We turn next to Gilleylen’s contention that the district court violated the
Confrontation Clause by limiting defense counsel’s cross-examination of codefendant
Robinson. Gilleylen argues that the jury could not understand the extent of Robinson’s
bias and motivation to fabricate his testimony without knowing that, if convicted of the
crimes he had been charged with before accepting a plea deal, Robinson faced life in prison
without the possibility of release.
District court evidentiary rulings are subject to an abuse of discretion standard on
review. Miles v. State, 840 N.W.2d 195, 204 (Minn. 2013). But we use a de novo review
standard in determining whether the admission of evidence violates a defendant’s rights
under the Confrontation Clause. State v. Sutter, 959 N.W.2d 760, 764 (Minn. 2021). If we
conclude that a violation did occur, we then must determine whether the error was harmless
beyond a reasonable doubt. Id. at 768. For an error to be harmless beyond a reasonable
15
doubt, the jury’s verdict must be “surely unattributable” to the error. State v. Courtney,
696 N.W.2d 73, 80 (Minn. 2005).
The Confrontation Clauses of the United States Constitution and the Minnesota
Constitution provide the accused the right “to be confronted with the witnesses against
him.” U.S. Const. amend. VI; Minn. Const. art. I, § 6. We apply the same analysis under
both Confrontation Clauses. Holliday, 745 N.W.2d at 564.
As to cross-examination, “the Confrontation Clause guarantees only
‘an opportunity for effective cross-examination, not cross-examination that is effective in
whatever way, and to whatever extent, the defense might wish.’ ” Kentucky v. Stincer, 482 U.S. 730, 739 (1987) (quoting Delaware v. Fensterer, 474 U.S. 15, 20 (1985)); see
also State v. Dobbins, 725 N.W.2d 492, 505 (Minn. 2006). The right to confront witnesses
“is not violated by limitations on cross -examination so long as the jury is presented with
sufficient information from which to appropriately draw inferences as to the witness’s
reliability.” State v. Ferguson, 742 N.W.2d 651, 657 (Minn. 2007). When we have
“upheld restrictions on cross-examining codefendants about the number of years that their
sentences were reduced by pleading guilty,” we considered whether the district court
allowed cross-examination “on other aspects of the plea agreement.” State v. Yang,
774 N.W.2d 539, 553 (Minn. 2009). Thus, whether a limitation on a defendant’s right to
cross-examine his codefendant violates a defendant’s right to confront witnesses depends
on the particular facts of the case.
For example, in Yang we applied the principle articulated in Ferguson that the right
to confront witnesses “ ‘is not violated by limitations on cross-examination so long as the
16
jury is presented with sufficient information from which to appropriately draw inferences
as to the witness’s reliability.’ ” Yang, 774 N.W.2d at 553 (quoting Ferguson, 742 N.W.2d
at 657). In Yang , the defendant was found guilty of 12 criminal counts. Id. at 551. He
was sentenced to two life terms for premeditated murder for the benefit of a gang under
aiding and abetting theories of criminal liability and four 186- month sentences for
attempted premeditated murder for the benefit of a gang under aiding and abetting theories
of criminal liability. Id. We upheld the decision of the district court to restrict the
defendant from “inquiring into the exact number of months or percentage of reduction of
[testifying] codefendants’ sentences under their respective plea agreements.” Id. at 553.
Two of the codefendant witnesses were charged with the same crimes as the defendant but
received significant benefit from plea bargains. Id. One witness testified:
that he was charged with the same crimes as [defendant] , that he pleaded
guilty to one count of second-degree murder, one count of second- degree
assault, and one count of committing a crime for the benefit of a gang, that
his sentence was 32 years, which was a “good deal” and considerably less
jail time.

Id. The other “was allowed to plead guilty to aiding an offender after the fact, and a crime
committed for the benefit of a gang” in exchange for his testimony. Id. “When asked if
his sentence was a ‘pretty good deal,’ [this witness] stated that he ‘wouldn’t know.’ ” Id.
We concluded that “the jury had sufficient information about [the] codefendants’
plea agreements to assess their credibility and that the district court did not err in restricting
cross-examination,” because “[t]he jury knew that the codefendants received considerably
less jail time in exchange for their testimony.” Id. Comparing the cross-examination in
Yang with what the district court allowed during Robinson’s cross-examination here, we
17
conclude that the right of Gilleylen to confront his codefendant was not violated because
the jury was presented with sufficient information from which to appropriately draw
inferences as to his codefendant’s reliability. See id.
Here, codefendant Robinson was indicted for first- degree premeditated murder
under an aiding and abetting theory of criminal liability. Police interviewed Robinson
twice. Robinson later claimed he fabricated “90 percent” of his story in the first interview.
Robinson then provided another interview after he struck a deal with the State that would
reduce his sentence to 5 years in prison in exchange for cooperating with the State, waiving
his right to remain silent, and testifying truthfully.
Gilleylen’s counsel argued to the district court before opening statements, and again
before Robinson testified, that Gilleylen should be able to say that Robinson was facing a
life sentence before his deal with the State. The district court, however, prohibited
Gilleylen from “seeking to impeach the co-defendant with the specific length of sentence
that the co-defendant was facing.” The district court reasoned that “it would . . . identify
the sentence that the defendant is facing, and . . . [s]entencing is not a proper consideration
for the jury, and it should not be admitted either directly or indirectly.” The court permitted
Gilleylen to impeach Robinson during cross-examination by allowing Gilleylen to describe
Robinson’s deal as a “95 percent discount” and a “significant discount or agreement.” The
court also allowed Gilleylen to identify the charges Robinson was facing before the deal
and the charges to which he ultimately pleaded guilty.
Gilleylen’s counsel did cross-examine Robinson extensively about conflicts
between the statements he made in the interview with police before he accepted a plea deal
18
and the statements and testimony he provided after the deal. Gilleylen’s counsel also
highlighted Robinson’s deal with the State. For example, defense counsel asked
Robinson: “You were charged with murder in the first degree, murder in the second degree,
and you struck a bargain that in exchange for your testimony against Mr. Gilleylen here,
you’re only going to serve five years?” Robinson answered, “Yes.” Counsel also asked,
“The deal that you struck here, if you end up getting the deal, if you end up testifying as
you already have against Mr. Gilleylen and the County Attorney’s Office determines it’s
truthful, you’ll receive about a 95 percent reduction in a murder sentence, right?”
Robinson answered, “Yes, sir.”
Here, defense counsel emphasized in his opening statement that Robinson made a
deal with the State that would result in a significant decrease in his sentence. The court
also allowed defense counsel to cross-examine Robinson about him receiving a “95 percent
reduction in a murder sentence.” And defense counsel established that Robinson was
charged with murder in the first degree and murder in the second degree and that as a result
of the bargain he struck in exchange for his testimony, Robinson would only receive a
5-year prison sentence. Defense counsel likewise argued in closing, “Hell of a deal for
first-degree murder. Heck of deal for first-degree murder. Five years.”
As in Yang, we conclude that the information presented to the jury to evaluate
Robinson’s reliability was sufficient. We decline to adopt Gilleylen’s proposed bright-line
rule that defense counsel must be permitted to cross-examine a testifying codefendant
about the fact the testifying codefendant faced a sentence of mandatory life in prison
without the possibility of parole before accepting a plea deal . The district court did not
19
violate Gilleylen’s constitutional right to confront witnesses by limiting his
cross-examination of Robinson.3
III.
In Gilleylen’s third argument, he contends that the district court erred by failing to
identify Robinson as an accomplice in the jury instructions. Robinson was indict ed for
murder in the first-degree under an aiding and abetting theory of criminal liability. The
district court did not identify Robinson as an accomplice but instead gave a general jury
instruction regarding accomplice testimony, which provided the definition of accomplice
and tasked the jury with determining if Robinson was an accomplice.
Gilleylen forfeited appellate review of this issue because he failed to raise the issue
in the district court. See State v. Ezeka, 946 N.W.2d 393, 407 (Minn. 2020). But we may
“consider a forfeited issue if the defendant establishes (1) an error, (2) that is plain, and
(3) that affects his substantial rights.” Id. If the defendant fails to establish that the alleged
error affected his substantial rights, we need not consider the first two prongs. State v.
Mouelle, 922 N.W.2d 706, 718 (Minn. 2019). Further, even if all three requirements are

3 To be clear, we do not hold that a district court may never allow discussion regarding
a witness’s potential life sentence, especially if the court provides a cautionary instruction
reminding the jury that it is not to consider sentencing. We emphasize that we have never
established an inflexible rule that prohibits district courts from allowing the use of the
original charge as part of a cross-examination process. Although we have explained that
“[i]t has long been the rule in Minnesota that sentencing is not a proper consideration for
the jury,” and we affirm that rule, the decision to restrict cross-examination regarding a
codefendant’s original charges is a discretionary decision left with the district court
depending on the circumstances. Chambers, 589 N.W.2d at 474.
20
established, we “may correct the error only if it seriously affects the fairness, integrity, or
public reputation of judicial proceedings.” Id.
Gilleylen argues it was error for the district court to fail to identify Robinson as an
accomplice, the error was plain, and that his convictions must be reversed because the error
affected his substantial rights. The State concedes the district court erred but argues the
error was not plain, nor did it affect Gilleylen’s substantial rights. We do not address the
first two prongs of the plain error test because we conclude that Gilleylen failed to establish
that the alleged error affected his substantial rights.
“A defendant’s substantial rights are affected when ‘there is a reasonable likelihood
that the giving of the instruction in question had a significant effect on the jury verdict.’ ”
Ezeka, 946 N.W.2d at 407 (quoting State v. Gomez, 721 N.W.2d 871, 880 (Minn. 2006)).
Gilleylen argues that his substantial rights were affected because it is unknown whether the
jury found corroborating evidence for Robinson’s testimony and the jury could have
erroneously concluded Robinson was not an accomplice. He argues there is a reasonable
possibility that the jury would have acquitted him if it had known Robinson’s testimony
needed to be corroborated. We disagree.
Under Minnesota law, a criminal conviction based on accomplice testimony must
be “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 circumstances thereof.” Minn. Stat. § 634.04 (2022). We
have explained that “corroborating evidence need only be sufficient to restore confidence
in the truthfulness of the accomplice’s testimony.” State v. Clark, 755 N.W.2d 241, 256
21
(Minn. 2008). “Corroborative evidence need not, standing alone, be sufficient to support
a conviction, but it must ‘affirm the truth of the accomplice’s testimony and point to the
guilt of the defendant in some substantial degree.’ ” State v. Reed, 737 N.W.2d 572, 584
(Minn. 2007) (quoting State v. Sorg, 144 N.W.2d 783, 786 (Minn. 1966)). “We ‘review
the evidence just as we would on a sufficiency challenge—in the light most favorable to
the prosecution, and with all conflicts in the evidence resolved in favor of the
verdict.’ ” State v. Smith, 932 N.W.2d 257, 264 (Minn. 2019) (quoting State v. Nelson,
632 N.W.2d 193, 202 (Minn. 2001)).
The reason for an instruction on accomplice corroboration “is to ensure that the jury
did not reject the corroborating evidence and base its verdict solely on the accomplice’s
testimony.” State v. Davenport, 947 N.W.2d 251, 262 (Minn. 2020). We have, however,
affirmed convictions when a district court did not give any accomplice instruction even
though the testifying witness was clearly an accomplice. See id. at 260–65; State v. Shoop,
441 N.W.2d 475, 478–81 (Minn. 1989); Ezeka, 946 N.W.2d at 408–10; State v.
Barrientos-Quintana, 787 N.W.2d 603, 610–13 (Minn. 2010).
If a district court fails to give the accomplice instruction and we review under the
plain error review standard, our “substantial rights inquiry focuses on whether there is a
reasonable likelihood that the jury relied solely on [the accomplice’s] testimony.”
Davenport, 947 N.W.2d at 262. Our recent decisions have highlighted four non-exclusive
factors in considering whether there is a reasonable likelihood that the jury relied solely on
the accomplice’s testimony: (1) whether the testimony of the accomplice was corroborated
by significant evidence; (2) whether the accomplice testified in exchange for leniency;
22
(3) whether the prosecution emphasized the accomplice’s testimony in closing argument;
and (4) whether the court gave the jury general witness-credibility instructions. See id. at
262–63 (citing State v. Horst, 880 N.W.2d 24, 38 (Minn. 2016)).
Regarding the first factor, the State presented other evidence that corroborate s
Robinson’s testimony. The State relied on surveillance video that matched Robinson’s
testimony about the car chase, the number of people in each car, and each person’s flight
on foot. Robinson’s testimony also matched where the discharged cartridge casings were
found. Additionally, the State presented evidence showing that the owner of the Accord
and Gilleylen shared the vehicle, Gilleylen had the car on the day of the murder, and
Gilleylen and Robinson did not show up where they were expected that day. Robinson’s
testimony that Gilleylen was in the backseat of the Accord is further bolstered by the fact
that police found a phone associated with Gilleylen and Gilleylen’s school supplies in the
backseat of the car. Analysis conducted by the Federal Bureau of Investigation showed
the phone associated with Gilleylen as traveling with the phone of Robinson and the front
seat passenger the afternoon of the shooting.
Although Gilleylen notes that there were conflicting descriptions of the shooter’s
clothing and hairstyle, these attacks on the sufficiency of evidence are not fatal. We have
“long held that evidence is sufficient to corrob orate an accomplice’s testimony when it is
weighty enough to restore confidence in the truth of the accomplice’s testimony.” Clark ,
755 N.W.2d at 253 (citation omitted) (internal quotation marks omitted); see also State v.
Lemire, 315 N.W.2d 606, 610 (Minn. 1982) (noting that accomplice testimony does not
need to “be corroborated on every point or element of the crime”). Because “corroborative
23
evidence does not need to be sufficient to establish a prima facie case of the defendant’s
guilt or sustain a conviction,” we conclude that the State presented other evidence sufficient
to corroborate Robinson’s testimony. Clark, 755 N.W.2d at 253–54.
The second factor also supports the conclusion that the jury did not rely solely on
Robinson’s testimony because the jury “was alerted to facts that could raise questions about
the motivations for an accomplice’s testimony.” Davenport, 947 N.W.2d at 264 (noting
that “[w]hen 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”). Here, the jury understood
Robinson “testified in exchange for leniency.” Horst, 880 N.W.2d at 38. Indeed, the jury
knew that Robinson was charged with first-degree murder, among other charges, but would
only receive a 5-year prison sentence. Cf. id. at 38–39 (determining that the jury was “fully
informed” to evaluate the testifying accomplice’s credibility because the jury knew the
testifying accomplice “had made an agreement with the State”).
Third, we analyze whether the prosecution emphasized the accomplice’s testimony
in closing argument. Davenport, 947 N.W.2d at 263. Here, “the State did not unduly
emphasize the testimony of the accomplice[] over other evidence” or “encourage the jury
to rely solely on” Robinson’s testimony. Horst, 880 N.W.2d at 39. Although the
prosecutor relied on Robinson’s testimony, he discussed specific facts that corroborated
Robinson’s testimony as well. See Shoop, 441 N.W.2d at 481 (“[T]he closing argument of
the prosecutor not only conceded to the jury that [the testifying accomplice] had an obvious
interest in trying to minimize his guilt and point a finger of primary guilt at defendant, but
24
focused the jury’s attention on the evidence corroborating [the accomplice]’s testimony.”).
In closing argument, the prosecutor discussed corroboration of Robinson’s testimony,
saying:
You’re going to read your instructions, and you heard about an
accomplice testimony instruction. And that’s important, but it’s common
sense. And what that instruction’s telling you is that somebody up here is an
accomplice to the crime. You’re not going to just take their word for it, they
need to be corroborated in some ways. If we had no video, no evidence other
than Dayton R obinson, that wouldn’t be enough. And that’s, like I said,
common sense.
You’re going to want to corroborate him because of course he has an
interest—he has an interest in reducing his sentence.

The prosecutor then discussed evidence that could corroborate Robinson’s testimony and
said, “All of this corroborates and really independently proves this case, but it corroborates
the testimony of Dayton Robinson. . . . It’s corroborated the entire way.” In rebuttal, the
prosecutor further said, “The accomplice —if you find that Dayton Robinson was
knowingly involved in the murder —you know what, he’s corroborated either way, so go
ahead and find it. That’s fine. But he needs to be corroborated, okay, and he has been
corroborated at every single stage.”
Fourth, the district court gave a general witness-credibility instruction to the jury.
See Horst, 880 N.W.2d at 39 (noting that this is an important factor to consider).
4

4 In addition to the four factors, we note that the jury asked during deliberations,
“Regarding accomplice testimony, is [Robinson]’s testimony only considered what was
said on the witness stand during trial, or is his testimony any information that’s been
admitted into trial? Are both his initial police interview and proffer interview also
considered accomplice testimony?” Based on these questions, the jury seemed to have
already concluded Robinson to be an accomplice and was examining corroborating
evidence for his testimony.
25
In conclusion, after balancing these factors, we conclude that Gilleylen’s substantial
rights were not affected. The closing arguments emphasized that the jury needed to
corroborate Robinson’s testimony. The district court instructed the jury on the general
credibility of witnesses. And the jury also knew that Robinson received a deal in exchange
for testifying. Whether, and to what extent, other evidence corroborated Robinson’s
testimony also weighs in favor of the State because the State presented other evidence to
support the truthfulness of Robinson’s testimony.
After conducting an independent review of the record and considering all relevant
factors, “there is not a reasonable likelihood that the jury’s verdict would have been any
different” had the district court identified Robinson as an accomplice. Horst, 880 N.W.2d
at 39. Accordingly, Gilleylen has not shown that his substantial rights were affected by
the failure of the district court to identify Robinson as an accomplice in the jury instructions
and, therefore, he has not satisfied the plain error exception to the forfeiture doctrine.
IV.
Gilleylen’s fourth argument is that the district court abused its discretion by
providing an instruction that confused the jury and improperly highlighted evidence. In its
jury instructions, the court included a limiting instruction for evidence presented regarding
J.W. and C.J. The instruction stated:
Members of the jury, you have heard testimony regarding the description of
the shooter and of an identification of [J.W.] from a number of non-testifying
witnesses. You have heard testimony of a fingerprint from [C.J.] found on
the magazine of the gun, and testimony regarding a photograph of [C.J.]
containing dreadlocks or braids. All of this evidence was admitted to test the
thoroughness of the investigation. You may not consider it for any other
purpose.
26
We review the decision of a district court regarding a jury instruction for an abuse
of discretion. State v. Moore, 699 N.W.2d 733, 736 (Minn. 2005). A district court has
“considerable latitude in selecting language for jury instructions,” id., but it abuses its
discretion “if the challenged instruction confuses, misleads, or materially misstates the
law.” State v. Guzman, 892 N.W.2d 801, 816 (Minn. 2017).
The Minnesota Rules of Evidence provide that when evidence is admissible for one
purpose but not for another purpose, the district court, upon request, “shall restrict the
evidence to its proper scope and instruct the jury accordingly.” Minn. R. Evid. 105. Jury
instructions, however, should not highlight particular kinds of evidence. See State v.
Starfield, 481 N.W.2d 834, 839 (Minn. 1992) (“Ordinarily, instructions drawing attention
to particular kinds of evidence should be avoided in criminal cases.”). Before analyzing
whether the jury instruction was erroneous, an overview of the relevant evidence is
necessary to understand the instruction given by the district court.
Defense counsel provided notice of three alternative perpetrators before
trial: Robinson, J.W., and the front seat passenger who is not relevant to this jury
instruction. At trial, there was evidence introduced that J.W. was an initial suspect, had
been arrested walking in the neighborhood after the shooting, and was identified as the
shooter by one witness during a show-up, but police later ruled him out as a suspect after
taking him to the police department. J.W. testified at trial that he was at his grandmother’s
house that day with family because his grandmother had recently died. Defense counsel
only minimally cross-examined J.W., never questioning his alibi story. The father of J.W.
27
also testified at trial. He confirmed that his son was at the grandmother’s house with
family. Defense counsel did not cross-examine J.W.’s father.
Over the State’s hearsay objection, the district court also allowed statements from
non-testifying witnesses describing the shooter’s clothing and hairstyle, and testimony
from a lead investigator that J.W. was identified in a show-up. The court determined that
the evidence was not being presented for the truth of the matter asserted, but rather for the
purposes of testing the thoroughness of the investigation or impeaching the investigation.
Nevertheless, the district court prohibited defense counsel from arguing that the evidence
constituted substantive evidence of another shooter.
During trial, evidence related to C. J. was also introduced and used during
cross-examination. Before the jury was sworn, the State asked the district court to
completely exclude discussion of C.J., arguing that the evidence was irrelevant as C.J. was
not noticed as an alternative perpetrator. Defense counsel argued C.J.’s partial fingerprint
that was found on the magazine of the gun was relevant evidence, and at the same time
admitted, “We do not have and we do not intend to offer any other evidence the State has
against C.J.” The court determined the evidence of C.J.’s fingerprint found on the
magazine of the alleged murder weapon was relevant and rejected the State’s request to
exclude the evidence.
Throughout the trial, the parties discussed the evidence of C.J.’s partial fingerprint
and a photograph of C.J. During such discussions, defense counsel acknowledged that
there was no evidence placing C.J. at the scene of the crime and that he was not arguing
that C.J. was the shooter. Yet defense counsel wanted to use the photograph of C.J. to
28
cross-examine investigators about C.J.’s hairstyle, which matched witnesses’ descriptions
of the shooter. The court ultimately prohibited defense counsel from admitting the
photograph of C.J. and showing it to the jury, but the court allowed defense counsel to use
the photograph of C.J. for purposes of examining investigators to impeach or test “the
thoroughness of the investigation.” Defense counsel leaned heavily on the theory that
confirmation bias affected the police investigation.
Before closing arguments and upon review of the jury instructions, t he court read
the instructions to the attorneys and explained that defense counsel could not characterize
or argue that the evidence identified in the limiting instruction constituted evidence of an
alternative perpetrator during closing arguments. At this point, defense counsel appeared
to take a different position—objecting to the limiting instruction and characterizing the
objection as “an ongoing objection to anything that has to do with me arguing or
introducing evidence regarding [C.J.] as a possible suspect.” Defense counsel did not
object to the references to J.W.
5 The court followed up and asked defense counsel to
further clarify his objections. Defense counsel objected to the limiting instruction and to
the court limiting how he could use testimony in the case.

5 Although Gilleylen argues in his brief to this court that the instruction is also
problematic as it relates to J.W., that issue is not properly preserved because it was not
raised at the district court. We conclude that even if Gilleylen could establish the error was
plain and affected his substantial rights, the error would not require our court to reverse
Gilleylen’s conviction. Gilleylen did not advance the theory at trial that J.W. was a possible
alternative perpetrator. He only minimally cross-examined J.W. and never asked if he was
the shooter. When J.W.’s father testified, defense counsel did not cross-examine him. The
focus of defense counsel when the jury instructions were discussed was on C.J. rather than
J.W.
29
Here, on appeal, Gilleylen argues that the instruction went too far when it stated the
jury could not use the evidence “for any other purpose,” contending that “[a] reasonable
juror interpreting the instruction could determine it could not use a lack of investigation to
infer it was possible that someone other than Gilleylen was the shooter.” But Gilleylen
admits that the evidence of C.J.’s fingerprint and his hair was introduced to challenge the
thoroughness of the investigation, not as alternative-perpetrator evidence.
The limiting instruction seems to be what defense counsel requested. It may have
gone further than necessary by saying “and not for any other purpose,” but defense counsel
conceded earlier in the trial that he could not argue C.J. was an alternative perpetrator.
When arguing about the admissibility of C.J.’s photograph, defense counsel stated, “I’ve
always been arguing someone else committed this crime. I’m not arguing that we have
evidence that [C.J. is] the shooter. No, I’m not arguing that.” Defense counsel also
conceded that he could not make an alternative-perpetrator argument based on the
statements provided by the non-testifying witnesses, which included statements regarding
J.W. Despite these concessions, defense counsel insisted on introducing evidence to
support his theory that the police’s investigation was affected by confirmation bias.
Gilleylen overstates the problem, if any, with the jury instruction. The instruction
only allows the jury to use the evidence to test the thoroughness of the police investigation.
It is true that the instruction prevented Gilleylen from arguing that C.J. was an alternative
perpetrator. But Gilleylen did not give the required notice that he intended to claim C. J.
was an alternative perpetrator and he had no evidence placing C.J. at the scene of the crime.
See, e.g., State v. Larson, 787 N.W.2d 592, 598 (Minn. 2010) (holding that the district court
30
did not abuse its discretion in denying the defendant’s motion to present an
alternative-perpetrator defense when the defendant did not proffer evidence showing the
alleged alternative perpetrator was “at or near the murder scene” or “had the opportunity”
to murder the victim). Regardless of whether no instruction or a different instruction might
have been preferable, the district court did not abuse its discretion by providing the limiting
instruction. See Moore, 699 N.W.2d at 736 (acknowledging that the “district court has
considerable latitude in selecting language for jury instructions”).
V.
Finally, Gilleylen argues that the cumulative effect of the errors here deprived him
of a fair trial. In rare cases, an appellant is entitled to a new trial when the cumulative
effect of trial errors results in denying the appellant a fair trial. State v. Fraga, 898 N.W.2d
263, 278 (Minn. 2017) . “When considering a claim of cumulative error, we look to the
egregiousness of the errors and the strength of the State’s case.” Id.
As part of our analysis, we have assumed without deciding that the district court
committed only one error: failing to identify Robinson as an accomplice. But the failure
to identify Robinson as an accomplice did not affect Gilleylen’s substantial rights. Because
Gilleylen failed to establish multiple errors, his cumulative effect argument fails.
VI.
Lastly, we consider an issue the parties did not raise. State v. Balandin, 944 N.W.2d
204, 221–22 (Minn. 2020) (sua sponte considering and resolving the same issue). The jury
found Gilleylen guilty of both first-degree premeditated murder and second- degree
intentional murder. The district court entered judgment of convictions for both crimes but
31
imposed a sentence only for the first-degree premediated murder conviction. The entry of
a judgment of conviction for the second-degree intentional murder offense violated Minn.
Stat. § 609.04, subd. 1 (2022), which provides that “[u] pon prosecution for a crime, the
actor may be convicted of either the crime charged or an included offense, but not
both,” because second -degree intentional murder is a lesser-included offense of
first-degree premeditated murder. See State v. Wipper, 512 N.W.2d 92, 94 (Minn. 1994)
(explaining that under section 609.04, a defendant may not be convicted of both
first-degree murder and the lesser-included offense of second-degree intentional murder on
the basis of the same criminal act); Balandin, 944 N.W.2d at 222 (same). Therefore, we
remand to the district court to vacate the judgment of conviction for the second-degree
intentional murder offense.
CONCLUSION
For the foregoing reasons, we affirm Gilleylen’s conviction for first-degree
premeditated murder but remand to the district court to vacate the judgment of conviction
for the second-degree intentional murder offense.
Affirmed in part, reversed in part, and remanded.