This opinion will be unpublished and may not be cited except as provided by Minn.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 A14-1502
State of Minnesota, Respondent,
vs.
Yia Her, Appellant.
Filed September 8, 2015 Affirmed Schellhas, Judge
Ramsey County District Court File No. 62-CR-13-4088
Lori Swanson, Attorney General, St. Paul, Minnesota; and
John J. Choi, Ramsey County Attorney, Thomas R. Ragatz, Assistant County Attorney, St. Paul, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Melissa Sheridan, Assistant Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Reyes, Presiding Judge; Schellhas, Judge; and Larkin,
Judge.
UNPUBLISHED OPINION
SCHELLHAS, Judge
Appellant challenges his convictions of second-degree intentional murder and
attempted second-degree intentional murder, arguing that the record contains insufficient evidence to support his convictions. Appellant also argues that he is entitled to a new trial
on the basis that the jury instructions were erroneous. We affirm.
FACTS
St. Paul police officers arrived at Malina’s Sports Bar in the early morning hours
of June 9, 2013, in response to a call about a shooting. The first officer to arrive spoke
with S.V., who reported that he had been shot. The officer then found another man, V.M.,
lying on the floor near the entryway of the bar. V.M., who was the bar owner, had
sustained a gunshot wound to his head. A woman, M.M., was attending to V.M. and
holding three spent shell casings. The officer observed that a third man, B.T., also had
been shot. V.M. died from his injuries shortly after admission to a hospital; S.V. and B.T.
survived.
Police determined that appellant Yia Her was the registered owner of a car parked
near the front of the bar. Eyewitnesses informed police that Her had “started the trouble”
at the bar, and the bar’s records reflected charges to Her’s credit card. Officers arrested
Her and recovered a white shirt with apparent blood on it. During a recorded police
interview, Her said that he had argued with the bar owner over $20 he paid to play pool
without receiving pool-table time. Her then called his brother-in-law, Cheng Vang, and
asked him to bring a gun to the bar to scare V.M. into returning the $20. After Vang
arrived, Her fought with V.M. and others in the bar, heard multiple gunshots, and saw
V.M. fall down. Her said that, at that time, he did not know that Vang had brought a gun
to the bar or who fired the gunshots. Her left the bar in Vang’s car because he could not
2 get into his own car. Officers located and arrested Vang and recovered the car that they
believed Vang had driven away from the bar.1
Respondent State of Minnesota charged Her as an accomplice with one count of
second-degree intentional murder and two counts of attempted second-degree intentional
murder, citing Minn. Stat. § 609.05, subd. 1 (2012), in all three counts. At Her’s jury
trial, the state presented testimony from eyewitnesses, police officers, Minnesota Bureau
of Criminal Apprehension agents, a physician, and a medical examiner. The state offered
as evidence a transcript and video recording of Her’s police interview and video
surveillance footage of the bar fight and shooting.
The district court instructed the jury on accomplice liability under Minn. Stat.
§ 609.05, subds. 1, 2 (2012), and on the lesser-included offense of felony murder based
on felony assault and felony terroristic threats. The jury returned guilty verdicts on all
three counts involving second-degree intentional murder. The court sentenced Her to 367
months’ imprisonment for his conviction of second-degree intentional murder and to 193
months’ concurrent imprisonment and 173 months’ concurrent imprisonment for his two
convictions of attempted second-degree intentional murder.
This appeal follows.
1 Vang pleaded guilty to one count of second-degree intentional murder and two counts of attempted second-degree intentional murder.
3 DECISION
Sufficiency of the evidence
Her argues that the record contains insufficient evidence to prove that he intended
to aid and abet Vang’s crimes or reasonably foresaw that Vang would commit second-
degree intentional murder and attempted second-degree intentional murder. “When the
sufficiency of evidence is challenged, [appellate courts] review the evidence to determine
whether, given the facts in the record and the legitimate inferences that can be drawn
from those facts, a jury could reasonably conclude that the defendant was guilty of the
offense charged.” State v. Fairbanks, 842 N.W.2d 297, 306–07 (Minn. 2014) (quotation
omitted). Appellate courts undertake “a painstaking analysis of the record to determine
whether the evidence, when viewed in the light most favorable to the conviction, was
sufficient to permit the jurors to reach the verdict which they did.” State v. Ortega, 813
N.W.2d 86, 100 (Minn. 2012) (quotation omitted).
“The State ordinarily proves a criminal defendant’s mental state by circumstantial
evidence.” State v. Bahtuoh, 840 N.W.2d 804, 809 (Minn. 2013).
When a challenge is to the sufficiency of the circumstantial evidence supporting a conviction, [appellate courts] apply the following two-step analysis:
First, [appellate courts] must identify the circumstances proved, giving deference to the jury’s acceptance of the proof of these circumstances and rejection of evidence in the record that conflicted with the circumstances proved by the State. Second, [appellate courts] independently examine the reasonableness of all inferences that might be drawn from the circumstances proved, including inferences
4 consistent with a hypothesis other than guilt. Thus, [appellate] review consists of determining whether the circumstances proved are consistent with guilt and inconsistent with any rational hypothesis except that of guilt.
Id. (quoting State v. Anderson, 789 N.W.2d 227, 241−42 (Minn. 2010) (quotations and
citations omitted in original)).
“A defendant is guilty as an accomplice of an offense committed by another
person if the defendant ‘intentionally aids, advises, hires, counsels, or conspires with or
otherwise procures [another person] to commit’ the offense.” Id. at 810 (alteration in
original) (quoting Minn. Stat. § 609.05, subd. 1). The supreme court has “identified two
elements for determining whether a defendant’s presence ‘intentionally aids’ another in
committing a crime: (1) the defendant knew that the alleged accomplices were going to
commit a crime; and (2) the defendant intended his presence or actions to further the
commission of that crime.” State v. Taylor, ___ N.W.2d ___, ___, No. A14-0942, slip op.
at 20−21 (Minn. Aug. 26, 2015) (quotations omitted).
“To impose liability under the aiding and abetting statute, the state must show
some knowing role in the commission of the crime by a defendant who takes no steps to
thwart its completion.” State v. Ostrem, 535 N.W.2d 916, 924 (Minn. 1995) (quotation
omitted). “Mere presence at the scene of a crime does not alone prove that a person aided
or abetted . . . .” Id. But “active participation in the overt act which constitutes the
substantive offense is not required . . . . ” Id.
A jury may infer the requisite state of mind from a variety of facts, including presence at the scene of the crime, a close association with the principal offender before and after the
5 crime, a lack of objection or surprise under the circumstances, and flight from the scene of the crime with the principal offender.
Bahtuoh, 840 N.W.2d at 810; see also State v. Hawes, 801 N.W.2d 659, 668 (Minn.
2011) (“To be guilty of aiding and abetting a crime, the defendant does not need to have
participated actively in the actual commission of the crime.”).
Under the first step of the sufficiency-of-the-circumstantial-evidence analysis, we
identify the circumstances proved by the state, which are as follows. Her argued with
V.M. over $20 that he had paid to use a pool table at V.M.’s bar, threw a pool cue to the
floor, and left the bar. Assuming that Vang might have a gun and that Vang would back
him up in the event of an altercation, Her called Vang and asked him to bring a gun to the
bar to scare V.M. into returning the $20. Her and Vang met in the bar parking lot and
approached the door to the bar, and Her banged, kicked, cursed, and demanded entrance.
When allowed entrance, Her confronted V.M. and said something to the effect that he
was going to kill V.M. or that V.M. was going to die. Her and V.M. scuffled, joined by
multiple people. Vang pulled out a gun, aimed it at V.M.’s head, and fired. Vang then
pointed the gun at S.V. and shot him. Vang fell to the ground, and Her kicked a man off
of Vang. Vang regained his footing and shot B.T.
Additionally, the state proved that Her did not render any aid to the shooting
victims; he walked toward the parking lot, ran to his car and unsuccessfully attempted to
open its door, and then ran to Vang’s car and fled with Vang. Prior to Her’s arrest, he told
his sister-in-law that someone needed to watch his kids because he was going to leave for
a while.
6 Under the second step of the sufficiency-of-the-circumstantial-evidence analysis,
we determine whether the circumstances proved are consistent with Her’s guilt and
inconsistent with any rational hypothesis aside from his guilt. Her argues that the
circumstances proved support a rational hypothesis that he did not know prior to the
shooting that Vang had brought a gun; he did not reasonably foresee that Vang would use
the gun to threaten, assault, or shoot the three victims; and he did not intend to further
Vang’s crimes. We disagree and conclude that the circumstances proved are consistent
with Her’s guilt and inconsistent with any rational hypothesis aside from his guilt. Her’s
admitted formation of the basic criminal plan—i.e., that Vang would use a gun to scare
V.M.—was sufficient to prove that Her intended to aid and abet at least one predicate
felony and that Vang’s use of the gun to shoot people was reasonably foreseeable to Her.
See State v. Jackson, 726 N.W.2d 454, 457–58, 460–61 (Minn. 2007) (holding that
sufficient evidence supported defendant’s conviction of murder charged under section
609.05, subdivision 2, where “[defendant], as an accomplice to the attempted robbery,
was aware of the basic details of the plan to use force or to threaten the use of force” and
knew that accomplice was armed). The evidence was sufficient to support Her’s
convictions.
Jury instructions
Her argues that the district court erred by instructing the jury on accomplice
liability under section 609.05, subdivision 2. “While district courts have broad discretion
to formulate appropriate jury instructions, a district court abuses its discretion if the jury
7 instructions confuse, mislead, or materially misstate the law.” Taylor, slip op. at 19
(quotation omitted).
We begin by noting that Her invited any error in the jury instructions. “The invited
error doctrine prevents a party from asserting an error on appeal that he invited or could
have prevented in the court below.” State v. Goelz, 743 N.W.2d 249, 258 (Minn. 2007).
Here, prior to swearing in the jury, the district court made a record of its decision to allow
instructions on accomplice liability under section 609.05, subdivision 2. Her argued that
the state was adding a new theory of accomplice liability with insufficient notice. The
court suggested that the appropriate remedy, if one was necessary, would be a
continuance and asked whether Her was requesting a continuance. Defense counsel
conferred with Her and told the court that he was ready to proceed. Had Her requested a
continuance, any error could have been prevented. We therefore review Her’s argument
for plain error. See id. (“The invited error doctrine . . . does not apply to plain errors.”).
“Under the plain-error doctrine, [an appellant] “must show that there was: (1) an
error; (2) that is plain; and (3) the error must affect substantial rights.” Taylor, slip op. at
19 (quotation omitted). “An error is plain if it is clear or obvious; usually this means an
error that violates or contradicts case law, a rule, or an applicable standard of conduct.”
State v. Vang, 847 N.W.2d 248, 261 (Minn. 2014). “The third prong is satisfied if . . .
there is a reasonable likelihood that the error had a significant effect on the jury’s
verdict.” Id. “Even if [an appellant] satisfies the first three prongs of the plain-error
doctrine, [appellate courts] may correct the error only if it seriously affects the fairness,
8 integrity, or public reputation of judicial proceedings.” Taylor, slip op. at 19 (quotations
omitted).
Minnesota Statutes section 609.05, subdivision 2, is labeled “expansive liability.”
Id. at 21. “The expansive liability subdivision states that a person liable for aiding and
abetting is also liable for any other crime committed in pursuance of the intended crime if
reasonably foreseeable by the person as a probable consequence of committing or
attempting to commit the crime intended.” Id. at 21−22 (emphasis omitted) (quotation
omitted). “[T]he statute requires that the other crimes committed in pursuance of the
intended crime be reasonably foreseeable by [the defendant].” Id. at 22 (emphasis
omitted) (quotation omitted). Her argues that the court erred by including the expansive-
liability instruction because the state provided insufficient notice that it was pursuing a
theory of criminal liability under that subdivision and insufficient notice of the predicate
offenses it was alleging that Her aided and abetted under section 609.05, subdivision 1
(intended crimes).
In State v. DeVerney, “[a]t the close of the state’s case, the state indicated that it
would seek aiding and abetting instructions under both subdivisions 1 and 2, and at the
close of all the evidence, the trial court instructed the jury on both.” 592 N.W.2d 837, 845
(Minn. 1999). “DeVerney objected, arguing that because the indictment did not include
the subdivision 2 theory, he had not had an opportunity to prepare a defense.” Id. In
addressing DeVerney’s argument, the supreme court applied Minn. R. Crim. P. 17.05. Id.
at 846; see also Ostrem, 535 N.W.2d at 920 (applying rule 17.05 to determine whether
district court erred by submitting case to jury on accomplice-liability theory under section
9 609.05, subdivision 1, despite complaint’s failure to cite section 609.05). Under rule
17.05, “[t]he court may permit an indictment or complaint to be amended at any time
before verdict or finding if no additional or different offense is charged and if the
defendant’s substantial rights are not prejudiced.” Minn. R. Crim. P. 17.05. “[T]he matter
of allowing amendments to complaints under Minn.R.Crim.P. 17.05 is in the sound
discretion of the trial judge.” Gerdes v. State, 319 N.W.2d 710, 712 (Minn. 1982).
In applying rule 17.05, we first determine whether the state charged an additional
or different offense. “[A]ccomplice liability is a theory of criminal liability, not an
element of a criminal offense or separate crime.” Dobbins v. State, 788 N.W.2d 719,
729–30 (Minn. 2010); see also State v. Britt, 279 Minn. 260, 263, 156 N.W.2d 261, 263
(1968) (agreeing with district court that “there is no separate crime of criminal liability
for a crime committed by another person”). “[The supreme court] ha[s] long held that
aiding and abetting is not a separate substantive offense and can be added at any point
prior to a verdict or finding.” DeVerney, 592 N.W.2d at 846. The supreme court also has
held that a jury may convict a defendant on a theory of accomplice liability even if the
state altogether fails to allege accomplice liability under section 609.05. See, e.g.,
Ostrem, 535 N.W.2d at 922–23 (rejecting argument that district court erred by submitting
case to jury on accomplice-liability theory, despite state’s failure to cite section 609.05 in
complaint, reasoning in part that “we have previously held that a jury may convict the
defendant of aiding and abetting despite the absence of ‘aiding and abetting’ language in
the complaint”); State v. Lucas, 372 N.W.2d 731, 740 (Minn. 1985) (stating that “even if
the indictment had not used ‘aiding and abetting’ language, the jury would have been free
10 to base the murder conviction on a determination that defendant was liable as an aider or
abettor”); cf. State v. DeFoe, 280 N.W.2d 38, 40 (Minn. 1979) (rejecting argument that
evidence was insufficient to support defendant’s aggravated-robbery conviction where
evidence proved that his accomplices committed aggravated robbery, although state
failed to allege accomplice liability under section 609.05).
Here, the prosecutor asked to pursue a theory of expansive liability under the
accomplice-liability statute, and the district court allowed the state to proceed under that
theory and instructed the jury accordingly. The additional form of aiding and abetting and
the accompanying jury instructions did not change the substantive offenses: completed
and attempted second-degree intentional murder. The state therefore did not seek to
charge an additional or different offense.
We next determine whether Her’s substantial rights were prejudiced. “[The
supreme court] ha[s] held that the opportunity to prepare a defense in a criminal case is a
substantial right.” DeVerney, 592 N.W.2d at 846; see also State v. Dickson, 309 Minn.
463, 467, 244 N.W.2d 738, 741 (1976) (identifying “opportunity to prepare a defense to
the charge” as “a substantial right”). Here, the probable-cause portion of the complaint
contains numerous statements that would form the basis for allegations of assault or
terroristic threats, providing Her actual notice of the state’s allegations and theories. See
DeFoe, 280 N.W.2d at 40 (concluding that state’s failure to cite section 609.05 in
complaint did not warrant reversal of aggravated-robbery conviction on accomplice-
liability theory because “the complaint made it clear that defendant was being charged
with aggravated robbery, and the reports and statements attached to the complaint made it
11 clear what the state basically contended had happened”). Moreover, the state referenced
section 609.05, subdivision 2, about six months before trial in its memorandum opposing
Her’s motion to dismiss for lack of probable cause. Defense counsel also acknowledged
that he was aware of the alleged verbal threats by Her to V.M. and that the prosecutor had
discussed the state’s theory with him the week before the trial commenced. Moreover,
Her himself requested an instruction on the lesser-included offense of second-degree
felony murder based on the predicate felony of terroristic threats.
And Her has not pointed to any specific way in which his defense would have
changed given more notice of the state’s “new” accomplice-liability theory. Her’s
substantial rights therefore were not prejudiced. See DeVerney, 592 N.W.2d at 846–47
(concluding that defendant was not prejudiced substantially by allegedly late notice of
state’s reliance on subdivision 2, where defendant did not “point to any specific way in
which his case would have been presented differently had he been informed at the outset
of the state’s reliance on subdivision 2”).
We conclude that the district court did not commit error by allowing the state to
pursue a theory of expansive liability under section 609.05, subdivision 2, and by
submitting jury instructions on that theory. We further conclude that Her has failed to
meet his burden of showing that the alleged plain error affected his substantial rights. See
Goelz, 743 N.W.2d at 258 (“The defendant generally bears the burden of persuasion with
respect to the third factor.”).
Her also argues that the district court erred by not including instructions on the
elements of the intended crimes under section 609.05, subdivision 1, with each
12 instruction for completed and attempted second-degree intentional murder as an
accomplice. We note that Her identifies no legal authority to support his argument. His
failure to adequately brief this issue constitutes a waiver of the argument on appeal. See
State v. Bartylla, 755 N.W.2d 8, 23 (Minn. 2008) (deeming appellant to have waived
claims of error that “[we]re lacking in supportive arguments and/or legal authority”
where “no prejudicial error [wa]s obvious on mere inspection” (quotation omitted)); State
v. Alvarez, 820 N.W.2d 601, 626 (Minn. App. 2012) (declining to address argument for
which appellant provided no support), aff’d sub nom. State v. Castillo-Alvarez, 836
N.W.2d 527 (Minn. 2013). But we still may review the argument in the interests of
justice and choose to do so. See Minn. R. Crim. P. 28.02, subd. 3.
We first address the appropriate standard of review. Prior to instructing the jury,
the district court requested that the parties make a record of any objections to the final
instructions. Her objected only to the inclusion of jury instructions on accomplice liability
under section 609.05, subdivision 2, not to the omission of the elements of the intended
crimes with each instruction for completed and attempted second-degree intentional
murder as an accomplice. Because Her did not object to the jury instructions on the
grounds that he now argues on appeal, we review the instructions for plain error. See
State v. Kelley, 855 N.W.2d 269, 273 (Minn. 2014) (“[Defendant] acknowledges that he
did not object to the instruction on this specific basis, and therefore we review the
instruction for plain error.”); see also State v. Bailey, 732 N.W.2d 612, 623 (Minn. 2007)
(stating that “‘a party [may not] obtain review by raising the same general issue litigated
13 below but under a different theory’” (quoting Thiele v. Stich, 425 N.W.2d 580, 582
(Minn. 1988))).
“A district court has considerable latitude in selecting jury instructions and in
selecting language for jury instructions.” Anderson, 789 N.W.2d at 239 (citations
omitted). “[A] district court’s instructions must be read as a whole to determine whether
they accurately describe the law.” State v. Vang, 774 N.W.2d 566, 581 (Minn. 2009).
“[Appellate courts] will not reverse where jury instructions overall fairly and correctly
state the applicable law.” State v. Hayes, 831 N.W.2d 546, 555 (Minn. 2013) (quotations
We conclude that the district court did not commit plain error by omitting the
elements. The supreme court recently concluded that a district court did not commit plain
error by failing to instruct the jury on the intended crime in an expansive-liability case,
noting that “[the supreme court] ha[s], on at least three occasions, upheld jury
instructions that did not specify the original intended crime” and collecting cases. Taylor,
slip op. at 24. In light of this authority, we cannot conclude that the court plainly erred by
not including instructions on the intended crimes with each instruction for completed and
attempted second-degree intentional murder as an accomplice. See Kelley, 855 N.W.2d at
277 (addressing alleged plain error in accomplice-liability jury instruction and concluding
“that for purposes of applying the plain-error doctrine the court examines the law in
existence at the time of appellate review”).
We also conclude that Her has failed to meet his burden of showing that the
alleged error affected his substantial rights. See Goelz, 743 N.W.2d at 258. The district
14 court included instructions on the elements of felony assault and felony terroristic threats
with the instructions for felony murder. The court also instructed the jury that “[it] must
consider the[] instructions as a whole and regard each instruction in light of all the
others” and that “the order in which the instructions are given is of no significance.”
During closing argument, the prosecutor stated that assault and terroristic threats were the
intended crimes under section 609.05, subdivision 1. “[R]ead as a whole,” the jury
instructions included the elements of the intended crimes in a manner “that c[ould] be
understood by the jury.” See Anderson, 789 N.W.2d at 239. Therefore, “[e]ven were we
to assume that the district court committed plain error, it could not have affected a
substantial right.” See Taylor, slip op. at 24 (concluding that third prong of plain-error
doctrine was not satisfied where “[t]he State and its witnesses made very clear” what the
intended crime was).
Affirmed.