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This opinion is nonprecedential except as provided by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
A23-0811

State of Minnesota,
Respondent,

vs.

Leneil James Colbert,
Appellant.

Filed July 8, 2024
Affirmed
Florey, Judge *

Ramsey County District Court
File No. 62-CR-21-6336

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

John J. Choi, Ramsey County Attorney, Peter R. Marker, Assistant County Attorney, St.
Paul, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Jessica Merz Godes, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Smith, Tracy M., Presiding Judge; Bjorkman, Judge;
and Florey, Judge.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
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NONPRECEDENTIAL OPINION
FLOREY, Judge
On appeal from the judgment of conviction for aiding and abetting second -degree
unintentional murder, appellant argues that the district court committed prejudicial plain
error by failing to instruct the jury that it could not convict appellant based on
uncorroborated accomplice testimony, and by not instructing the jury that the state was
required to prove beyond a reasonable doubt that appellant knowingly and intentionally
aided another to commit the charged crime. In a pro se supplemental brief, appellant argues
that his trial counsel was ineffective and that his conviction must be reversed for
insufficient evidence. We affirm.
FACTS
Respondent State of Minnesota charged appellant Leneil James Colbert with aiding
and abetting second-degree unintentional murder in connection with the armed robbery and
death of A.C. The following facts derive from the evidence elicited at Colbert’s jury trial.
On August 29, 2021, officers responded to Regions Hospital on a report that a
shooting victim had been dropped off at the hospital . Upon arri ving, officers learned that
the victim, A.C., had died.
An officers spoke with A.M., who had driven A.C. to the hospital. A.M. said that
he had been visiting A.C. at Spring Hill Suites and that he was on the second floor of the
parking ramp when he heard shots coming from the third floor. A.M. told officers that he
went to the third floor of the parking ramp and found A.C. lying face down next to the
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passenger side of his car. A.M. also told officers that he saw a black or navy Mercedes
speed out of the parking ramp around the same time as the shooting.
Testimony at trial established that Colbert had orchestrated a plan, which was
executed by several others, to rob A.C. Two accomplices, Danell Christner and Davonte
Tharpe, testified about the events leading up to A.C.’s death.
Christner’s Testimony
Christner testified that she is a prost itute and Colbert is her pimp . Christner
explained that Colbert provided her with housing in exchange for the money she made .
Christner stated that, although she was bringing in at least $1,000 per day, Colbert was
never satisfied with the amount of money she made and told her to “work or find people to
rob.”
Christner testified that she met with A.C. in a hotel room on August 28. After
leaving A.C.’s hotel, Christner called Colbert and told him that A.C. “had a lot of money
and a lot of dr ugs.”
Christner testified that she had been arrested in connection with the case, and that
she received a deal in exchange for her truthful testimony against the others involved in
A.C.’s death.
Tharpe’s Testimony
Tharpe explained the relationship between the actors involved in the robbery and
shooting death of A.C. Tharpe stated that he lived with Anthony Pryor. Tharpe also
testified that his cousin, Travon Ferrara, introduced him to Colbert . Tharpe testified th at
he knew Christner through working at a local eatery, purportedly owned by Christner and
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Colbert, and that he knew that Christner was “selling herself for [Colber t].” Tharpe stated
that Pryor and Colbert were very close, claiming that “[i]f [Colbert] wanted somebody
gone, Pryor had to do it, and if Pryor missed or he didn’t succeed, [Colbert] was going to
kill him.”
Tharpe testified that Colbert called him around 8:41 p.m. on August 28, stating that
he needed Tharpe to work. Around 9:26 p.m., Tharpe dropped Pryor off at the eatery and
picked up Colbert and a bouncer from the same location. Tharpe stated that once Colbert
and the bouncer were in his car, they stopped at a gas station and then went to Spring Hill
Suites to scope out different ways to get in and out of the facility because Colbert planned
on robbing someone who was staying there. After about 30 minutes, Tharpe dropped
Colbert and the bouncer off a block away from the eatery.
Tharpe stated that Colbert told Tharpe and Pryor to go to Spring Hill Suites and rob
A.C. Tharpe did not have a weapon, but he knew that Pryor had a gun. Tharpe testified
that when he and Pryor left the eatery, Colbert was calling Christner to figure out A.C.’s
location and then calling Pryor to relay the information. Tharpe stated that he was afraid
of what would happen if the robbery went bad, so he told Pryor and Colbert that he had to
return the vehicle he was driving to his girlfriend otherwise she would call the police.
Tharpe dropped Pryor back off at the eatery shortly after midnight.
Tharpe testified that after he left the eatery, Colbert enlisted the help of Frank
Spriggs and Tarrance Hardie to go to the hotel and rob A.C. Tharpe also testified that
Ferrara’s distinctive Mercedes was used to tra nsport the men to and from the hotel.
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When Tharpe returned to the eatery a few hours later, Colbert was upset with him
for leaving, told him that the robbery had gone bad, and that he better hope that A.C.
survives. Several days later, Tharpe tossed the g uns that w ere used to shoot A.C. off a
bridge at Colbert’s direction . Ferrara also asked Tharpe to get rid of his Mercedes, but
Tharpe did not aid in that effort.
Tharpe testified that he had been arrested in connection with the case, and that the
state asked him to truthfully testify against the others involved. Tharpe stated that, at the
time of trial, he did not have any sort of deal with the state.
Trial Exhibits
The state presented numerous exhibits connecting Colbert to the incident, including
surveillance videos from the eatery , hotel, and traffic cameras. Before the incident,
surveillance from the eatery shows: (1) Colbert, Pryor, and Tharpe at the eatery; (2) Pryor
and Tharpe leav ing the eatery in Tharpe’s vehicle; (3) Colbert using a cellphone;
(4) Spriggs and Hardie meeting Colbert at the eatery; (5) Pryor getting out of Tharpe’s car;
(6) Colbert, Pryor, Hardie, and Spriggs walking toward the distinct Mercedes; and
(7) Colbert returning to the eatery . Surveillance video from the hotel showed the
distinctive Mercedes enter ing the parking ramp shortly before and leaving immediately
after the shooting. Traffic cameras also captured Tharpe’s vehicle arriving at the eatery
and picking up two people, going to a gas station, and then driving to the hotel. Traffic
cameras also captured the distinctive Mercedes driving in the direction of the hotel before
the incident and away from the hotel after the incident.
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The state introduced Colbert’s cellphone data into evidence, which showed that he
had been in communication with Christner, Tharpe, and Spriggs before and after the
incident.
In his defense, Colbert presented testimony from several witnesses, including an
officer who had taken Pryor’s statement.1 In that statement, Pryor told the officer that he,
Spriggs, and Hardie were involved in the incident ; that he and Spriggs fired three shots at
A.C.; and that Colbert did not know about the robbery.
The jury found Colbert guilty as charged. The district court later sentenced Colbert
to 180 months’ imprisonment. Colbert appeals.
DECISION
I. Failing to include an accomplice corroboration jury instruction was plain error
but did not impact Colbert’s substantial rights.

Minnesota’s uncorroborated-evidence-of-accomplice statute prohibits convictions
based “upon the testimony of an accomplice, unless it is corroborated by such other
evidence as tends to convict the defendant of the commission of the off ense, and the
corroboration is not sufficient if it merely shows the commission of the offense or the
circumstances thereof.” Minn. Stat. § 634.04 (2020). Although Colbert did not request an
instruction to the jury regarding the accomplices’ testimony, “ trial courts have a duty to
instruct juries on accomplice testimony in any criminal case in which it is reasonable to
consider any witness against the defendant to be an accomplice.” State v. Strommen, 648

1 Pryor invoked his right against self-incrimination, but his statement was admitted through
the officer’s testimony.
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N.W.2d 681, 689 (Minn. 2002). Here, there is no dispute that Christner and Tharpe were
accomplices.
“[W]here a district court fails to give a required accomplice corroboration
instruction and the defendant does not object, an appellate court must apply the plain error
analysis.” State v. Reed, 737 N.W.2d 572, 584 n.4 (Minn. 2007). The plain-error analysis
involves consideration of whether there is: “(1) an error, (2) that was plain, and (3) that
affected the defendant’s substantial rights.” Id. at 583. If these factors are satisfied, this
court then considers “whether the error should be addressed to ensure fairness and the
integrity of the judicial proceedings.” Id. (quotation omitted).
Colbert claims that failing to instruct the jury that it could not convict Colbert based
on uncorroborated accomplice testimony was plain error that affected his substantial rights.
Because “it is plainly erroneous for a district court to fail to give an accomplice -
corroboration instruction when the facts warrant it,” State v. Horst , 880 N.W.2d 24, 38
(Minn. 2016), we turn immediately to the question of whether the failure to provide such
an instruction impacted Colbert’s substantial rights.
Failing to provide a jury instruction impacts a defendant’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.” Reed, 737 N.W.2d at 583 (quotation omitted). The “reason
for requiring the accomplice corroboration instruction 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). Thus, to determine
whether Colbert’s substantial rights were affected, the focus of the inquiry is on whether
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there is a reasonable likelihood that the jury relied solely on the testimony of Christner and
Tharpe in reaching its verdict. To do so, we consider “ ‘whether the testimony of the
accomplice was corroborated by significant evidence, whether the accomplice testified in
exchange for leniency, whether the prosecution emphasized the accomplice’s testimony in
closing argument, and whether the court gave the jury general witness credibility
instructions.’” Horst, 880 N.W.2d at 38 (quoting State v. Jackson, 746 N.W.2d 894, 899
(Minn. 2008)).
Corroboration
Christner’s testimony established that she was working for Colbert, and that Colbert
told her to look for clients to rob. Christner testified that A.C. was a client, and that she
told Colbert that A.C. had a significant amount of money and drugs. The state presented
evidence of Christner’s vehicle entering the Spring Hill Suites parking ramp and of
Christner and A.C. waiting for an elevator at the hotel on August 28. Cellphone data shows
that Christner called Colbert at 8:37 p.m. when she was in the vicinity of Spring Hill Suites,
and that she called Colbert again a few minutes later. The evidence is significant evidence
corroborating Christner’s testimony.
Tharpe’s testimony demonstrated that Colbert orchestrated the robbery. C ellphone
data shows that Colbert called Tharpe immediately after getting off the phone with
Christner. Cellphone data further shows that (1) between 8:41 p.m. and 9:11 p.m., Tharpe
and Colbert called each other eight times whi le Tharpe traveled near Colbert’s location;
(2) thereafter, Colbert travel ed towards Spring Hill Suites ; (3) Colbert, Tharpe, and Pryor
were at the eatery shortly after 10:00 p.m.; (4) Colbert remained at the eatery the remainder
9
of the night ; (5) Pryor was in the vicinity of Spring Hill Suites around the time of the
robbery; and (6) between 11:29 p.m. on August 28 and 12:34 a.m. on August 29, Colbert
spoke to Tharpe 12 times, Ferrara seven times, Christner four times, and Spriggs twice.
Here, the cellphon e data corroborates the timing of Tharpe’s testimony, including the
location of Colbert at relevant points , and is significant evidence corroborat ing Tharpe’s
testimony.
Leniency
Christner testified that she was arrested in connection with this case and that she had
reached a plea agreement with the state in which she was offered leniency in exchange for
her truthful testimony. Tharpe testified that he had been arrested in connection with the
case and that the state asked him to truthfully testify a gainst the others involved but, at the
time of trial, he had not reached a plea agreement with the state. Thus, the jury was aware
that Christner had received a benefit for her truthful testimony and that Tharpe was asked
to provide truthful testimony but had not reached a deal with the state at the time of trial .
Horst, 880 N.W.2d at 38-39 (noting that informing the jury of an accomplice’s agreement
with the state provided the jury with the necessary information to weigh the accomplice’s
credibility).
Closing Arguments
The state’s closing argument is approximately 50 pages. The state did not rely
heavily on the accomplices’ testimony during closing. The state, instead, focused on the
corroborating evidence, including surveillance videos , images, and cellphone data. The
state published images and videos for the jury throughout closing.
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Credibility Instruction
The district court provided the following instruction related to witness credibility.
You are the sole judges of whether a witness is to be
believed and of the weight to be given [to] a witness’s
testimony. There are no hard and fast rules to guide you in this
respect. In determining believability and weight of testimony,
you may take into consideration the witness’s:

1. Interest or lack of interest in the outcome of the
case,
2. Relationship to the parties,
3. Ability and opportunity to know, remember, and
relate the facts,
4. Manner,
5. Age and experience,
6. Frankness and sincerity, or lack thereof,
7. Reasonableness or unreasonableness of their
testimony in the light of all the other evidence in the
case,
8. Any impeachment of the witness’s testimony,
9. And any other factors that bear on believability and
weight.

You should rely in the last analysis upon your own
experience, good judgment, and common sense.

By instructing jurors to consider the accomplices’ interests in the outcome of the case, the
believability of their testimony, and impeachment of their testimony, the jury was “‘alerted
. . . to the potenti al for conflicting motivations behind certain testimony.’ ” Horst, 880
N.W.2d at 39 (quoting State v. Lee, 683 N.W.2d 309, 317 (Minn. 2004)).
We recognize that one factor —leniency —favors Colbert’s argument, but on
balance, these factors show that the lack of an accomplice-corroboration instruction did not
impact Colbert’s substantial rights.
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II. Failing to instruct the jury on the burden of proof needed to show that Colbert
acted with the required mental state did not impact Colbert’s substantial
rights.

When there is no objection to jury instructions at trial, the appellate court has
discretion to consider a claim of error on appeal “if there was plain error affecting
substantial rights or an error of fundame ntal law in the jury instructions.”
State v. Crowsbreast, 629 N.W.2d 433, 437 (Minn. 2001) (quotation omitted) . Our plain-
error analysis contemplates whether there is: “(1) an error, (2) that was plain, and (3) that
affected the defendant’s substantial rights.” Reed, 737 N.W.2d at 583. If these factors are
satisfied, we consider “whether the error should be addressed to ensure fairness and the
integrity of the judicial proceedings.” Id. (quotation omitted).
Colbert claims the district court committed prejudicial plain error by failing to
instruct the jury on the burden of proof needed to show that he knowingly and intentionally
aided the others.
The jury was instructed to “consider the instructions as a whol e and regard each
instruction in light of all the others.” The instructions set out the presumption of innocence,
noting the state’s burden of proving Colbert’s guilt beyond a reasonable doubt. The
instructions also defined “know,” “had reason to know,” “intentionally,” and “with intent.”
The instruction regarding liability for the crimes of another laid out the elements of the
offense, and included the requisite mental state, but did not include the state’s burden of
proving that Colbert acted with the required mental state beyond a reasonable doubt . See
State v. Mahkuk , 736 N.W.2d 675, 682 (Minn. 2007) (noting that the element of
intentionally aiding requires that the defendant knew that his alleged accomplices were
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going to commit a crime, and that the defendant intended his pre sence or actions to further
the commission of that crime ).
We assume without deciding that the failure to instruct the jury on the burden of
proof for showing that Colbert acted with the required mental state is plain error , and so
we consider whether the failure to provide such an instruction impacted Colbert’s
substantial rights.
Failing to provide a jury instruction impacts a defendant’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.” Reed, 737 N.W.2d at 583 (quotation omitted). “The defendant
has the burden of proving prejudice, and it is a heavy burden.” State v. Huber, 877 N.W.2d
519, 525 (Minn. 2016).
There is no reasonable likelihood that the erroneous jury instruction had a
significant effect on the jury verdict because there is considerable evidence that Colbert
intentionally aided and abetted in robbing A.C . The jury heard evidence that Colbert tol d
Christner to watch for clients to rob, and that Christner told Colbert where A.C. was staying
and that he had a significant amount of money. The jury heard evidence that Colbert
enlisted Tharpe’s help in robbing A.C., and that Colbert contacted others w hen Tharpe
backed out of the plan. The jury observed cellphone data showing Colbert in
communication with his accomplices throughout the night of the robbery, and it saw
surveillance footage corroborating Christner ’s and Tharpe’s testimo ny. This evidence
shows that Colbert knew his associates were going to rob A.C. and that he intended on
aiding their efforts. Moreover, f rom these facts, the jury would have found Colbert guilty
13
even if the district court had instructed the jury on the burden of proof needed to prove that
Colbert knowingly and intentionally aided in the robbery of A.C .
III. Colbert is not entitled to relief base d on his claim of ineffective assistance of
counsel.

Criminal defendants have a right to effective assistance of counsel. U.S. Const.
amend. VI; Minn. Const. art. I, § 6; State v. Hokanson, 821 N.W.2d 340, 357 (Minn. 2012).
Appellate courts apply the two- prong Strickland test to evaluate an appellant’s
ineffective-assistance-of-counsel claim. State v. King, 990 N.W.2d 406, 417 (Minn. 2023);
see Strickland v. Washington, 466 U.S. 668, 687 (1984). Under the Strickland test, the
appellant has the burden of showing (1) that their “attorney’s representation fell below an
objective standard of reasonableness” an d (2) that “there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have been
different.” King, 990 N.W.2d at 417 (quotations omitted). If one prong is determinative,
the reviewing court need not address the other. State v. Rhodes , 657 N.W.2d 823, 842
(Minn. 2003). Because ineffective -assistance-of-counsel claims involve mixed questions
of law and fact, the standard of review is de novo. Id. ; see Strickland, 466 U.S. at 698.
Colbert alleges several mistakes by trial counsel, among them that counsel failed to
raise objections, subpoena witnesses, and threatened to withdraw from the case. He states
that these alleged errors impacted his substantial rights, but he presents no argument that
“there is a reasonable probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different.” King, 990 N.W.2d at 417 (quotations omitted).
Because Colbert has failed to prove that there is a reasonable probability that the outcome
14
would have been different but for the alleged errors, he has failed to demonstrate that he is
entitled to relief for ineffective assistance of counsel. Rhodes , 657 N.W.2d at 842.
IV. Sufficient evidence supports the jury’s verdict.
When evaluating the sufficiency of the evidence, we review the record to determine
“whether the evidence, when viewed in the light most favorable to the conviction, is
sufficient to allow the jurors to reach their verdict.” State v. Olhausen, 681 N.W.2d 21, 25
(Minn. 2004). We assume the jury believed evidence that supported the verdict and
disbelieved any evidence that conflicted with the verdict. Id. “We will not disturb the
verdict if the jury, while acting with proper regard for the presumption of innocence and
regard for the requirement of proof beyond a reasonable doubt, could reasonably conclude
that the defendant was guilty of the charged offense.” Id. at 25-26.
A finding of guilt can be based on direct or circumstantial evidence. Circumstantial
evidence is “evidence from which the [fact -finder] can infer whether the facts in dispute
existed or did not exist.” State v. Harris , 895 N.W.2d 592, 599 (Minn. 2017) (quotation
omitted). “In contrast, direct evidence is evidence that is based on personal knowl edge or
observation and that, if true, proves a fact without inference or presumption.” Id.
(quotations omitted).
The p arties agree that circumstantial evidence was used to prove Colbert’s guilt .
When the state relies on circumstantial evidence to prove an element of an offense, we
apply a heightened standard of review. See id. at 599- 601 (discussing circumstantial -
evidence standard); State v. Al -Naseer, 788 N.W.2d 469, 471 (Minn. 2010) (stating that
“the heightened scrutiny applies to any disputed element of the conviction that is based on
15
circumstantial evidence”). Pursuant to the circumstantial-evidence standard of review, we
first determine the circumstances proved, disregarding evidence th at is inconsistent with
the verdict. Harris, 895 N.W.2d at 600. Next, we “determine whether the circumstances
proved are consistent with guilt and inconsistent with any rational hypothesis other than
guilt.” Loving v. State, 891 N.W.2d 638, 643 (Minn. 2017) (quotation omitted). We do
not defer to the fact-finder’s choice between reasonable inferences. State v. Silvernail, 831
N.W.2d 594, 599 (Minn. 2013). But we will not reverse a conviction based on
circumstantial evidence unless there is a reasonable inference other than guilt. Loving, 891
N.W.2d at 643.
Much of Colbert’s sufficiency-of-the-evidence claim rests on the assertion that
Christner and Tharpe are untrustworthy, and he claims that the forensic data does not
corroborate their testimony. Colbert, however, does not present a circumstantial -evidence
analysis. An assignment of error in a brief based on “mere assertion” and not supported
by argument or authority is waived unless prejudicial error is obvious on mere inspection.
Schoepke v. Alexander Smith & Sons Carpet Co., 187 N.W.2d 133, 135 (Minn. 1971); see
State v. Andersen, 871 N.W.2d 910, 915 (Minn. 2015) (applying this aspect of Schoepke).
Prejudicial error is not apparent upon mere inspection. The circumstances proved
demonstrate that Christner informed Colbert that A.C. had a large amount of money and
drugs, and that Colbert then orchestrated a plan for others to rob A.C. Colbert claims
Christner and Tharpe are untrustworthy, rendering their testimony unreliable. But as
evidenced by its verdict, the jury disagreed. See Harris, 895 N.W.2d at 600 (noting that
under the first prong of the circumstantial -evidence standard, we defer to the jury’s
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credibility determinations and “resolv[e] all questions of fact in favor of the jury’s
verdict”). Moreover, Colbert presents no reasonable alternative inference from the
circumstances proved other than his guilt . See State v. Tscheu , 758 N.W.2d 849, 858
(Minn. 2008) (noting that to successfully challenge a jury’s verdict, an appellant must
“point to evidence in the record that is consistent with a rational theory other than guilt”).
Because the circumstances proved are consistent with guilt, and because Colbert failed to
provide a reasonable hypothesis other than guilt, we conclude that sufficie nt evidence
supports the jury’s verdict.
Affirmed.