OPINION
Appellant challenges her convictions of aiding and abetting first-degree aggravated robbery, aiding and abetting second-degree assault, aiding and abetting third-degree assault, and aiding and abetting simple robbery. She asserts that she is entitled to a new trial because the district court erred in its accomplice-liability instruction to the jury. Because the district court’s jury instruction did not misstate the law, we affirm.
FACTS
This case arises from an assault and robbery in the home of N.N. and A.M. on December 21, 2013. J.F. was there as a visitor. On that day, Chadric McKee struck N.N. three times in the head, fracturing N.N.’s jaw. McKee grabbed A.M. by the hair, • pointed a gun at her head, and demanded money. Finally, McKee approached J.F. with the gun in his hand and took her cash, prescription medication, and cell phone. A total of three cell phones were taken.
Appellant Daley Marie Smith was charged as McKee’s accomplice under Minn. Stat. § 609.05. At trial, the central issue was whether appellant is criminally liable for the crimes committed by McKee.
Appellant had repeatedly asked to borrow money from J.F. before the robbery. J.F. initially agreed to lend money to appellant, and then changed her mind. Appellant came to the home of N.N. and A.M. on December 21 to borrow money. J.F. was at the home, but hid in a bedroom under the pretense of not being home. Appellant left and tóld N.N. and A.M. that she would return later in the day. Appellant then called J.F. and asked when she would return home and if she had paid rent to A.M. and N.N.
Later that day, appellant returned to the home of N.N. and A.M., accompanied by McKee, whom N.N. and A.M. did not know. J.F. again retreated to the bedroom to avoid appellant. Upon entering the home with appellant, McKee pulled a bandana over his face and struck N.N.,three times in the head. A.M. testified that ap
. J.F. heard the commotion and called 911 from a bedroom closet. Without ending the call with the emergency operator, J.F. stepped from the closet and saw appellant in the bedroom. J.F. testified that appellant looked surprised. When J.F. asked appellant what was going on, appellant said, “[McKee’s] going, crazy.” McKee approached the bedroom and stopped near the bedroom door, holding the gun in his hand. J.F. gave him her money, prescription pills, and cell phone,.which was still connected to 9li. J.F. testified that appellant stood by while this occurred, but did not demand or physically take any of the items. McKee and appellant left the house together. A.M. and J.F. testified that appellant did not appear upset when she left.
The state charged appellant as an accomplice to first-degree aggravated robbery, second-degree assault, and third-degree assault. At trial, the district court instructed the jury on each of those offenses and the lesser-included offense of simple robbery. The district court included an accomplice-liability instruction with the instructions for each crime. The jury was instructed that a defendant’s presence constitutes aiding if “the defendant knew her alleged accomplices were going to or were committing a crime” and “intended that her presence and actions aid the commission of the crime.” This accomplice-liability instruction mirrored the CRIMJIG 4.01 instruction. 10 Minnesota Practice, CRIM-JIG 4.01 (Supp, 2016)..
The jury found appellant guilty of each charged offense. This appeal follows.
' ISSUE
Was the district court’s accomplice-liability instruction plainly erroneous?
ANALYSIS
Appellant argues that the. district court’s jury instruction constitutes plain error affecting her substantial rights and warrants a new trial. She challenges the district court’s jury instruction on 'accomplice liability as deviating from language used by the Minnesota Supreme Court in several prior cases to describe the knowledge element under Minn. Stat. §'609.05.' She alternatively argues that the instruction allowed her to be convicted for her mere presence at the scene of a crime.
The state’s theory at trial was that appellant enlisted McKee to assist her in stealing the money she had earlier requested to borrow from J.F. and that the two of them were accomplices from the outset of the robbery. The evidence is undoubtedly sufficient for the'jury to have found that this is what happened. But if appellant is correct that the jury instruction allowed the jury to find her criminally liable for crimes of .another beyond the scope of the accomplice-liability statute, then a new trial is warranted. Because the jury was only asked to decide if appellant was guilty or not guilty, the adequacy of the jury instruction is critically important.
Appellant did not object to the district court’s accomplice-liability instruction; we therefore review the instruction
District courts are afforded “broad discretion and considerable latitude in choosing the language of jury instructions.” Milton,
“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. The statute further provides that “[a] person liable under subdivision 1 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., subd. 2.
The Minnesota Supreme Court has held that an accomplice-liability instruction must adequately explain the “intentionally aiding” element of section 609.05, subdivision 1. Milton,
In Milton, the supreme court held that an accomplice-liability instruction is erroneous if it “allow[s] the jury to find [the defendant] guilty as an accomplice without first finding that [the defendant] knowingly and intentionally assisted in the commission of a crime.”
Here, the district cburt described the knowledge requirement as being that “the defendant knew her alleged accomplices were going to or were committing a crjme.” Appellant argues that the instruction is erroneous because it deviates from the languáge repeatedly used by the Minnesota Supreme Court to. describe the knowledge element. See Huber, 877
Appellant first argues that deviation from the supreme court’s prescribed language for the “intentionally aiding” element is, without more, error. Deviation from the supreme court’s specific language does not indicate error. Milton requires the two mens rea elements within “intentionally aiding” to be adequately described to the jury as part of an accomplice-liability instruction.
Appellant argues that the instruction, as given, materially misstates the law. She argues that the addition of the words “or were committing” to the knowledge element within “intentionally aiding” permitted the jury to convict appellant of a crime of which she had no advance knowledge. She argues that the supreme court’s description of the knowledge element as requiring a defendant to know that the accomplice “was going to commit a crime” indicates that foreknowledge of the accomplice’s plan or intent to commit a crime is necessary for a conviction under section 609.05.
We do not read Mahkuk, Milton, or the cases that follow, as requiring knowledge of an accomplice’s criminal intent before the crime commences. Rather, we read those cases to require a defendant to possess knowledge of the.crime before the defendant intentionally aids in its commission. A defendant who acquires the requisite knowledge while the accomplice is in the process, of committing the offense, and makes the choice to aid in its commission either through her presence or her actions, is guilty as an accomplice under the plain language of Minn. Stat. § 609.05. The statute requires knowledge of the crime at the time of the acts or presence amounting to aid.
Put another way, a defendant is criminally liable under Minn. Stat. § 609.05 for crimes committed by another if she intends her presence or actions to aid the other in committing an offense that she knows is criminal. See State v. McKenzie,
Knowledge and intent are both necessary elements that the state must prove beyond a reasonable doubt. Mahkuk,
These principles were effectively communicated to the jury through the district court’s accomplice-liability instruction. We are satisfied that the jury understood that appellant was subject to liability as an accomplice if she intended her presence or actions to aid in the commission of an offense at a point in time when she knew her accomplice was going to commit or was in the process of committing a crime.
To the extent appellant argues that the language of the instruction would permit imposition of criminal liability for being present at a crime without possessing knowledge that another intended to commit any crime, we are satisfied that the intent requirement as instructed by the district court adequately protects the innocent. To be criminally liable as an accomplice, the person must, upon gaining knowledge that the crime is occurring, intend to aid the commission of the crime. See State v. Williams,
Because the district court’s jury instruction was not erroneous, there was no plain error.
DECISION
The district court did not err by defining accomplice liability under Minn. Stat. § 609.05 as including knowledge that her alleged accomplice was going to commit & crime or was committing a crime. We therefore affirm.
Affirmed.
Notes
. A recording of the 911 call placed by J.F, was played to the jury., The recording captured the commotion during the robbery, demands for the phones, and the sounds of McKee and appellant leaving the house and entering a car. Upon entry into the car, a female voice calmly asks if it is fíne to smoke in the car.
. In Taylor, the supreme court considered an instruction similar to the instruction at issue here.