This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA IN COURT OF APPEALS A15-1269
State of Minnesota, Respondent,
vs.
Erick Larkins, Appellant.
Filed August 29, 2016 Affirmed in part, reversed in part, and remanded Stauber, Judge
Washington County District Court File Nos. 82-CR-14-2829; 82-CV-14-4599
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Pete Orput, Washington County Attorney, Nicholas A. Hydukovich, Assistant County Attorney, Stillwater, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Anders J. Erickson, Assistant Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Stauber, Presiding Judge; Reyes, Judge; and Toussaint,
Judge.*
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10. UNPUBLISHED OPINION
STAUBER, Judge
Appellant challenges his conviction of aiding and abetting first-degree aggravated
robbery, seeking (1) reversal of his conviction because of an erroneous jury instruction;
(2) reversal of the district court’s restitution order; and (3) vacation of a no-contact order
that was imposed as part of his sentence. We reverse and remand for the district court to
vacate the no-contact portion of appellant’s sentence, but otherwise affirm in all respects.
FACTS
On the morning of June 21, 2014, Thomas Jones entered a jewelry store in
Woodbury and approached an employee, S.J. As Jones walked into the store, S.J. saw a
police officer drive past and look into the store. Jones pulled out a revolver, pointed it at
S.J., and ordered S.J. to open a jewelry showcase, which he did. Jones then gave S.J. a
paper bag and ordered him to fill it with jewelry. While S.J. complied, another employee
came into the store but turned around and ran out. Jones then set the bag down and
ordered S.J. to get down on his knees. S.J. then heard Jones say, “uh-oh,” which S.J.
interpreted to mean that Jones was aware that police had discovered the robbery in
progress. Attempting to offer Jones a way out, S.J. told Jones that the store had a back
exit. Jones left the bag on the counter and walked toward the back of the store. Moments
later, S.J. heard a gunshot. Police later discovered Jones dead from a gunshot wound; his
revolver was underneath his body. The medical examiner determined that Jones’ death
was a suicide.
2 Appellant Erick Larkins drove Jones to the robbery site from Minneapolis and
parked at the opposite end of the strip mall from the jewelry store. Before the robbery,
Larkins walked past the jewelry store and looked inside, then went inside the nutrition
store next door but bought nothing. He then walked past the jewelry store again and
looked inside. The employee of the nutrition store testified that Larkins smelled of
marijuana and that his short visit seemed to be pretextual.
Larkins was arrested and tried before a jury on a charge of aiding and abetting
aggravated robbery. At Larkins’ trial, the state offered evidence implicating Larkins in
the robbery, including phone records showing that Larkins contacted Jones via cellphone
on the morning of the robbery and attempted to contact him three times immediately after
the robbery; cellphone records showing that Larkins remained in Woodbury after the
robbery despite claiming that he drove back to Minneapolis after Jones purportedly paid
him $15 to give him a ride to Woodbury; physical casing conduct at the jewelry store by
Larkins and Jones before the date of the robbery; Larkins’ conduct of breaking into
Jones’ apartment on the afternoon of the robbery and leaving with unknown items; and
other evidence circumstantially linking Larkins to Jones around the time of the robbery.
While instructing the jury, the district court, without objection, gave the following
instruction defining aiding and abetting:
The [d]efendant is guilty of a crime, however, only if the other person commits a crime. The [d]efendant is not liable criminally for aiding, advising, hiring, counseling, conspiring, or otherwise procuring the commission of a crime unless some crime, including an attempt, is actually committed.
(emphasis added).
3 The jury found Larkins guilty, and the district court imposed a 112-month
sentence, to be followed by issuance of a no-contact order upon Larkins’ release from
prison. The district court also issued a restitution order that required Larkins to pay
$4,250 to the victim S.J. This appeal followed.
DECISION
Jury Instructions. Appellant argues that the district court committed reversible
error by including a reference to attempted robbery within its jury instructions defining
the offense of aiding and abetting. “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.” Minn. Stat. § 609.05, subd. 1 (2014).
Jones’ conduct could constitute attempted aggravated robbery if Jones merely did an “act
which [was] a substantial step toward . . . the commission of the crime,” Minn. Stat.
§ 609.17 (2014), but the aggravated robbery could constitute a completed offense if Jones
actually took personal property from another while armed. Minn. Stat. §§ 609.24 (2014)
(defining simple robbery), 609.245, subd. 1 (2014) (defining first-degree aggravated
robbery). Because appellant could be convicted of aiding and abetting only if there was
an underlying completed robbery offense committed by Jones, appellant argues that it
was error for the district court to include the reference to an attempted offense in its
instructions.
Appellant did not object at the time of trial, and this court therefore reviews the
unobjected-to instruction for plain error. State v. Gunderson, 812 N.W.2d 156, 159
(Minn. App. 2012). “Under the plain-error standard, [an appellate court] review[s] the
4 jury instructions to determine whether there was error, that was plain, and that affected
[the defendant’s] substantial rights.” Id. “If the three prongs of the plain error test are
met, [the appellate court] may reverse if [it] conclude[s] that reversal is required to ensure
fairness and the integrity of the judicial proceedings.” State v. Vance, 734 N.W.2d 650,
656 (Minn. 2007).
We agree with appellant that the instruction was erroneous, and we must next
determine if the error was plain. An error is plain if it “contravenes case law, a rule, or a
standard of conduct.” State v. Ramey, 721 N.W.2d 294, 302 (Minn. 2006). Respondent
argues that the instruction given was consistent with the model instructions set forth in 10
Minnesota Practice, CRIMJIG 4.01 (2014), and therefore, although not completely
accurate, was not plainly erroneous. But there is a fundamental difference between a
completed-robbery offense and an attempted-robbery offense, which could have made the
instruction inaccurate and confusing to a jury. “When the plain language of [a] statute
conflicts with the CRIMJIG, the district court is expected to depart from the CRIMJIG
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This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA IN COURT OF APPEALS A15-1269
State of Minnesota, Respondent,
vs.
Erick Larkins, Appellant.
Filed August 29, 2016 Affirmed in part, reversed in part, and remanded Stauber, Judge
Washington County District Court File Nos. 82-CR-14-2829; 82-CV-14-4599
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Pete Orput, Washington County Attorney, Nicholas A. Hydukovich, Assistant County Attorney, Stillwater, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Anders J. Erickson, Assistant Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Stauber, Presiding Judge; Reyes, Judge; and Toussaint,
Judge.*
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10. UNPUBLISHED OPINION
STAUBER, Judge
Appellant challenges his conviction of aiding and abetting first-degree aggravated
robbery, seeking (1) reversal of his conviction because of an erroneous jury instruction;
(2) reversal of the district court’s restitution order; and (3) vacation of a no-contact order
that was imposed as part of his sentence. We reverse and remand for the district court to
vacate the no-contact portion of appellant’s sentence, but otherwise affirm in all respects.
FACTS
On the morning of June 21, 2014, Thomas Jones entered a jewelry store in
Woodbury and approached an employee, S.J. As Jones walked into the store, S.J. saw a
police officer drive past and look into the store. Jones pulled out a revolver, pointed it at
S.J., and ordered S.J. to open a jewelry showcase, which he did. Jones then gave S.J. a
paper bag and ordered him to fill it with jewelry. While S.J. complied, another employee
came into the store but turned around and ran out. Jones then set the bag down and
ordered S.J. to get down on his knees. S.J. then heard Jones say, “uh-oh,” which S.J.
interpreted to mean that Jones was aware that police had discovered the robbery in
progress. Attempting to offer Jones a way out, S.J. told Jones that the store had a back
exit. Jones left the bag on the counter and walked toward the back of the store. Moments
later, S.J. heard a gunshot. Police later discovered Jones dead from a gunshot wound; his
revolver was underneath his body. The medical examiner determined that Jones’ death
was a suicide.
2 Appellant Erick Larkins drove Jones to the robbery site from Minneapolis and
parked at the opposite end of the strip mall from the jewelry store. Before the robbery,
Larkins walked past the jewelry store and looked inside, then went inside the nutrition
store next door but bought nothing. He then walked past the jewelry store again and
looked inside. The employee of the nutrition store testified that Larkins smelled of
marijuana and that his short visit seemed to be pretextual.
Larkins was arrested and tried before a jury on a charge of aiding and abetting
aggravated robbery. At Larkins’ trial, the state offered evidence implicating Larkins in
the robbery, including phone records showing that Larkins contacted Jones via cellphone
on the morning of the robbery and attempted to contact him three times immediately after
the robbery; cellphone records showing that Larkins remained in Woodbury after the
robbery despite claiming that he drove back to Minneapolis after Jones purportedly paid
him $15 to give him a ride to Woodbury; physical casing conduct at the jewelry store by
Larkins and Jones before the date of the robbery; Larkins’ conduct of breaking into
Jones’ apartment on the afternoon of the robbery and leaving with unknown items; and
other evidence circumstantially linking Larkins to Jones around the time of the robbery.
While instructing the jury, the district court, without objection, gave the following
instruction defining aiding and abetting:
The [d]efendant is guilty of a crime, however, only if the other person commits a crime. The [d]efendant is not liable criminally for aiding, advising, hiring, counseling, conspiring, or otherwise procuring the commission of a crime unless some crime, including an attempt, is actually committed.
(emphasis added).
3 The jury found Larkins guilty, and the district court imposed a 112-month
sentence, to be followed by issuance of a no-contact order upon Larkins’ release from
prison. The district court also issued a restitution order that required Larkins to pay
$4,250 to the victim S.J. This appeal followed.
DECISION
Jury Instructions. Appellant argues that the district court committed reversible
error by including a reference to attempted robbery within its jury instructions defining
the offense of aiding and abetting. “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.” Minn. Stat. § 609.05, subd. 1 (2014).
Jones’ conduct could constitute attempted aggravated robbery if Jones merely did an “act
which [was] a substantial step toward . . . the commission of the crime,” Minn. Stat.
§ 609.17 (2014), but the aggravated robbery could constitute a completed offense if Jones
actually took personal property from another while armed. Minn. Stat. §§ 609.24 (2014)
(defining simple robbery), 609.245, subd. 1 (2014) (defining first-degree aggravated
robbery). Because appellant could be convicted of aiding and abetting only if there was
an underlying completed robbery offense committed by Jones, appellant argues that it
was error for the district court to include the reference to an attempted offense in its
instructions.
Appellant did not object at the time of trial, and this court therefore reviews the
unobjected-to instruction for plain error. State v. Gunderson, 812 N.W.2d 156, 159
(Minn. App. 2012). “Under the plain-error standard, [an appellate court] review[s] the
4 jury instructions to determine whether there was error, that was plain, and that affected
[the defendant’s] substantial rights.” Id. “If the three prongs of the plain error test are
met, [the appellate court] may reverse if [it] conclude[s] that reversal is required to ensure
fairness and the integrity of the judicial proceedings.” State v. Vance, 734 N.W.2d 650,
656 (Minn. 2007).
We agree with appellant that the instruction was erroneous, and we must next
determine if the error was plain. An error is plain if it “contravenes case law, a rule, or a
standard of conduct.” State v. Ramey, 721 N.W.2d 294, 302 (Minn. 2006). Respondent
argues that the instruction given was consistent with the model instructions set forth in 10
Minnesota Practice, CRIMJIG 4.01 (2014), and therefore, although not completely
accurate, was not plainly erroneous. But there is a fundamental difference between a
completed-robbery offense and an attempted-robbery offense, which could have made the
instruction inaccurate and confusing to a jury. “When the plain language of [a] statute
conflicts with the CRIMJIG, the district court is expected to depart from the CRIMJIG
and properly instruct the jury regarding the elements of the crime.” Gunderson, 812
N.W.2d at 162. Because the district court did not follow the pertinent statute in defining
the applicable robbery offense as it related to the facts established at trial, the error was
plain.
We next consider whether the district court’s erroneous instruction affected
appellant’s substantial rights. “[A]n error affects substantial rights if there is a reasonable
likelihood that the error had a significant effect on the jury’s verdict.” Vance, 734
N.W.2d at 656; see Ramey, 721 N.W.2d at 302 (stating that the defendant bears the
5 “heavy” burden of persuasion on the third prong of the plain-error test). Viewing the
instructions as a whole, we conclude that they were substantially correct and clearly
included the requirement that appellant aided and abetted a completed robbery. The
erroneous reference to “attempt” in the provision that defined aiding and abetting was
isolated and minor in relation to the instructions as a whole.
Further, because Jones’ aggravated robbery was captured on a videotape that was
admitted at trial and was witnessed by several individuals, there was strong evidence that
a completed robbery occurred. Jones walked into the jewelry store, pointed a gun at an
employee, ordered the employee to fill a bag with jewelry, held the bag containing the
jewelry, setting the bag down only after the police were about to apprehend him. While
appellant argues that Jones held the bag filled with jewelry for only about five seconds,
this duration was sufficient to prove that Jones “took” the property, which is all that is
required to establish the “taking” element of the offense. See Minn. Stat. § 609.24
(including within the definition of simple robbery the element of unlawful “taking or
carrying away” of personal property of another); State v. Burrell, 506 N.W.2d 34, 36
(Minn. App. 1993), review denied (Minn. Oct. 19, 1993) (affirming robbery conviction
that “took less than a minute” and involved robber carrying away cigarettes from a
convenience store); cf. U.S. v. Wright, 246 F.3d 1123, 1126 (8th Cir. 2001) (defining
“taking,” for purposes of federal carjacking statute, to include “acquisition by the robber
of possession, dominion or control of the property for some period of time”). Moreover,
evidence of appellant’s role in aiding and abetting the robbery was strong. His conduct
6 before, during, and after the robbery clearly demonstrates his connection to Jones’s
crime.
For these reasons, appellant has failed to meet his “heavy” burden to establish a
basis for reversal of his conviction because of error in the jury instructions. The error of
embedding the attempt language in the instructions had no significant effect on the jury
verdict or on appellant’s substantial rights.
Restitution. Appellant next argues that the district court erroneously issued its
order for restitution before the 30-day statutory period for a challenge to the requested
restitution had expired. Upon a proper request for restitution made under Minn. Stat.
§ 611A.04, subd. 1(a)-(b)(2014) and sufficient evidence to support granting the request, a
district court may order an offender to pay restitution to crime victims for “out-of-pocket
losses resulting from the crime.” Id. at subd. 1(a). The restitution statute contemplates
issuance of a restitution order either at sentencing or after sentencing, and the district
court may reserve the issue of restitution if evidence to support the restitution claim is not
received before sentencing. Id.
At sentencing on May 11, 2015, the district court granted the state’s request to
continue the issue of restitution for 60 days and informed appellant that if he wished to
challenge the claimed amount of restitution, he could do so by motion. Following
sentencing, Johnson Jewelers filed an affidavit for restitution on June 12, 2015 that
claimed $1,000 for an insurance deductible, $550 for an employee’s therapy, $900 for a
“psychological resource group,” and $1,800 for “paid leave of absence.” On June 18,
2015, the Washington County Court Administrator notified appellant that an affidavit for
7 restitution had been filed. In a restitution order filed on July 7, 2015, the district court
granted the state’s $4,250 restitution request. Without challenging the restitution
requested, appellant filed a notice of appeal to this court on August 7, 2015.
Appellant now argues that the district court prematurely issued the order for
restitution before the 30-day period to challenge the restitution request had expired. He
claims that the district court should not have issued the restitution order until July 18,
2015, or 30 days after he was notified of the restitution request. The restitution statute
states that “[a]n offender may challenge restitution, but must do so by requesting a
hearing within 30 days of receiving written notification of the amount of restitution
requested, or within 30 days of sentencing, whichever is later.” Minn. Stat. § 611A.045,
subd. 3(b)(2014) (emphasis added); see State v. Borg, 834 N.W.2d 194, 196 (Minn. 2013)
(setting forth procedure for an offender to challenge restitution, including
acknowledgement that under the restitution statute, the time for an offender to challenge
claimed restitution expires 30 days after the offender receives notice of the restitution
request or is sentenced, whichever is later).
“[T]he typical procedure that a defendant must follow in order to preserve a
sentencing issue for appeal is to raise the issue with the district court.” State v. Gaiovnik,
794 N.W.2d 643, 648 (Minn. 2011). In State v. Thole, this court stated, “Under the plain
language of the [restitution] statute, a valid dispute arises only after an offender meets the
threshold burden of raising a specific objection by affidavit.” 614 N.W.2d 231, 235
(Minn. App. 2000). By failing to contest the claimed amount of restitution within 30
days as required by the restitution statute, appellant waived his right to challenge
8 restitution. See Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996) (stating that an
appellate court will generally not consider matters not argued to and considered by the
district court); Mason v. State, 652 N.W.2d 269, 272-73 (Minn. App. 2002) (stating that a
district court’s failure to inform an offender of the 30-day period for challenging a claim
for restitution did not excuse the offender’s failure to comply with the rule), review
denied (Minn. Dec. 30, 2002).
Sentence. Appellant claims, and respondent agrees, that the district court erred by
imposing as part of appellant’s sentence a no-contact order to be issued upon his release
from prison. “[A] district court may not impose a no-contact order as part of an executed
sentence unless the order is expressly authorized by statute.” State v. Pugh, 753 N.W.2d
308, 311 (Minn. App. 2008), review denied (Minn. Sept. 23, 2008). While no-contact-
type orders are allowed by statute in domestic-abuse crimes, see, e.g. Minn. Stat.
§ 518B.01, subd. 4 (2014), no statute permits the issuance of a no-contact order in
conjunction with the crime of robbery. Because of this error, we reverse and direct the
district court on remand to vacate the no-contact order portion of appellant’s sentence.
See Pugh, 753 N.W.2d at 311 (vacating no-contact order imposed as part of sentence for
first-degree criminal sexual conduct).
Affirmed in part, reversed in part, and remanded.