This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2012).

STATE OF MINNESOTA

IN COURT OF APPEALS

A13-1928

State of Minnesota,

Respondent,

vs.

Timothy John Huber,

Appellant.

Filed December 8, 2014

Affirmed

Chutich, Judge

Dissenting, Stauber, Judge

Kandiyohi County District Court

File No. 34-CR-11-817

Lori Swanson, Attorney General, James B. Early, Assistant Attorney General, St. Paul, 

Minnesota; and

Shane Baker, Kandiyohi County Attorney, Willmar, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Julie Loftus Nelson, Special 

Assistant Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Stauber, Presiding Judge; Cleary, Chief Judge; and 

Chutich, Judge. 

U N P U B L I S H E D O P I N I O N

CHUTICH, Judge

On appeal from his conviction for aiding and abetting second-degree murder, 

appellant Timothy John Huber contends, and we agree, that the district court committed 
2

plain error by improperly instructing the jury on accomplice liability. Because Huber 

cannot meet his heavy burden of showing that the error affected the outcome of his case, 

and because he had a full opportunity to present his theory of the case in a vigorous and 

fair adversarial trial, we nevertheless affirm Huber’s conviction.

FACTS

The facts underlying T.L.’s murder are as follows. Appellant Timothy John Huber 

and his father, 80-year-old Delbert Huber, owned land in rural Kandiyohi County. Huber 

occasionally performed chores at the farm of his neighbor, N.L. N.L.’s son, T.L., also 

owned land adjacent to N.L.’s farm, which T.L. used for hunting. T.L. was a special 

education teacher who lived in Albertville; when T.L. hunted on his land, he stayed at his 

father’s farm. 

The record shows that Huber had a long-standing antipathy toward T.L. dating 

back to 2005 and had been harassing him over the years. Huber believed that T.L. had 

once permitted other people to hunt on the Hubers’ land, which angered him. He 

frequently accused T.L. of neglecting T.L.’s father and called T.L. and his wife “rich city 

people.”

Huber made numerous telephone calls to T.L. until T.L. sent him a letter asking 

him to stop. T.L. filed a police report in 2008, claiming that Huber was harassing him by 

making phone calls “at all hours.” Even though T.L. lived in Albertville, not close to the 

farms in Kandiyohi County, Huber and Delbert Huber inexplicably believed that T.L. 

drove to Paynesville to puncture their tires, shine lights into their house in the middle of 

the night, turn lights on in the barn at 1:00 a.m., cut wires to let cattle out of the fence, 
3

and do “everything he could” to harass them. Although Huber and Delbert Huber

attributed these acts to T.L., no credible evidence tied T.L. to any of these purported 

events. Other evidence, including a series of letters addressed to T.L.’s father expressing 

Huber’s anger and frustration with T.L., and Spreigl testimony regarding Huber’s 

profanity-laced and threatening interactions with personnel at the Veterans 

Administration Hospital, demonstrate that Huber reacted with anger and paranoia in 

certain situations.

On October 7, 2011, a Friday night, T.L. arrived at his father’s farm, planning to 

duck hunt that weekend by himself on the farm. T.L. did not know that his father had 

asked Huber to do some farm chores while T.L.’s father was out of town, and T.L. was 

surprised to encounter Huber at T.L.’s father’s farm, along with a lot of Huber’s farm 

equipment. T.L. asked Huber to leave several times and to remove his farm equipment, 

but Huber refused. Finally, Huber, Delbert Huber, and a neighbor moved the equipment 

off N.L.’s farm but the neighbor described Huber as very angry—as angry as he had ever 

seen him. Huber reportedly told Delbert Huber that T.L. said he would kill them if they 

returned to N.L.’s land. 

During this encounter, T.L. told Huber that T.L. would do the chores at the farm, 

and he specifically instructed Huber not to return the next day. Despite this directive and 

T.L.’s purported threat to kill them, Huber and Delbert Huber returned the very next 

morning. Delbert Huber, who did not usually carry a gun, brought a World War I British 

military rifle and ammunition and put them in the trunk of the car. The gun had been 

recently oiled and was fully operational. 
4

When they arrived at N.L.’s farm, no one was there. Instead of doing chores, the 

Hubers drove to check on the farm equipment that they had removed from N.L.’s 

property the night before. Huber told Delbert Huber that someone had turned on the 

lights of the equipment and had tampered with the oil in the tractors. Huber blamed T.L. 

for tampering with the tractors; evidence at trial showed, however, that the equipment 

had not been vandalized. Huber also told Delbert Huber that T.L. had likely taken 

Huber’s wallet and stolen $50 and that T.L. had taken tractor parts. 

After checking on the equipment, Huber and Delbert Huber returned to N.L.’s 

farm. On the way, Delbert Huber instructed Huber to stop the car so that he could 

retrieve the rifle from the trunk. Delbert Huber intended to force T.L. to admit that he 

had stolen the wallet and the tractor parts. Huber testified that he was doing chores, 

while Delbert Huber waited in the car, when T.L. returned in his pickup truck. Huber 

said that T.L. was shouting and hollering at them; T.L. was not armed, but Huber testified

that T.L. and Delbert Huber engaged in a “ballroom brawl” and wrestling match; Delbert 

Huber “quick ran” or walked fast to the car, retrieved the rifle, and shot T.L., killing him 

with a single shot. At the time of this encounter, Delbert Huber used a walker or a 

wheelchair. 

Huber testified that Delbert Huber was just trying to defend himself when he shot 

T.L. Evidence at trial showed that T.L. was killed when the shot entered his left side, and 

the placement of the shot suggested that T.L. was retreating to his truck when hit. 

The two men left T.L.’s body on the ground for 12 hours and did not call the 

police until evening. Huber testified that he did not call the police because Delbert Huber
5

had his cellular telephone, but evidence at trial showed that Huber made several 

telephone calls from that phone that day. Delbert Huber stated that he shot T.L. and that 

Huber did not call the police because Huber was busy that day. Huber’s two statements 

to the police included contradictory statements; he claimed to have been in the barn doing 

chores but later claimed that Delbert Huber had shouted at him to stay away. 

Huber was charged with aiding and abetting first-degree premeditated murder, 

second-degree intentional murder, and second-degree unintentional felony murder

(murder during a second-degree assault). Delbert Huber pleaded guilty to second-degree 

intentional murder. After a jury trial, the jury convicted Huber of both counts of seconddegree murder, but acquitted him of first-degree premeditated murder. On appeal, Huber 

challenges the district court’s jury instruction on liability for the crimes of another.

D E C I S I O N

Huber did not object to the jury instructions at trial so we review them for plain 

error. State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998). An appellant must show that 

(1) there was error; (2) it was plain; and (3) his or her substantial rights were affected. Id. 

If all three prongs are met, “we may correct the error only if it ‘seriously affect[s] the 

fairness, integrity, or public reputation of judicial proceedings.’” State v. Crowsbreast, 

629 N.W.2d 433, 437 (Minn. 2001) (alteration in original) (quoting Johnson v. United 

States, 520 U.S. 461, 467 117 S. Ct. 1544, 1549 (1997)). 

Because the district court has broad discretion in formulating jury instructions, we

will not reverse if the “instructions overall fairly and correctly state the applicable law.” 

State v. Hayes, 831 N.W.2d 546, 555 (Minn. 2013) (quotation omitted). But a jury 
6

instruction that fails to include or explain a required element of the crime is erroneous 

and we must then determine whether the error was plain, affected the defendant’s 

substantial rights, and requires correction to “ensure fairness and the integrity of the 

judicial proceedings.” State v. Milton, 821 N.W.2d 789, 806–07 (Minn. 2012).

The defendant has the burden of demonstrating that plain error occurred. State v. 

Ramey, 721 N.W.2d 294, 302 (Minn. 2006). As to the third prong, whether substantial 

rights were affected, a defendant bears “the heavy burden of proving that ‘there is a 

reasonable likelihood that giving the instruction in question had a significant effect on the 

jury verdict.’” State v. Kelley, 855 N.W.2d 269, 284 (Minn. 2014) (quoting State v. 

Gomez, 721 N.W.2d 871, 880 (Minn. 2006)). We consider each prong of the plain-error 

standard in turn.

1. Error

Huber was charged with aiding and abetting Delbert Huber to commit first-degree 

and second-degree murder. Liability for the crimes of another, or aiding and abetting, 

requires the state to show, in addition to the elements of the underlying offense, that a 

defendant played a “knowing role in the commission of the crime.” State v. Gates, 615 

N.W.2d 331, 337 (Minn. 2000), overruled on other grounds by Crawford v. Washington, 

541 U.S. 36, 124 S. Ct. 1354 (2004). To do so, the state had to prove beyond a 

reasonable doubt that Huber knew Delbert Huber was going to commit a crime and that 

Huber “intended his presence or actions to further the commission of that crime.” State 

v. Mahkuk, 736 N.W.2d 675, 682 (Minn. 2007). 
7

In Mahkuk, the supreme court concluded that the district court’s instruction that 

the jury must “consider” whether the defendant knew a crime would be committed and 

whether he intended to encourage or further the crime by his presence was erroneous. Id.

The supreme court stated that a jury must do more than “consider” these factors; it must 

find them beyond a reasonable doubt. Id. 

Following Mahkuk, the supreme court held that a district court must include in its 

jury instructions on accomplice liability that (1) the defendant knew that his alleged 

accomplice was going to commit a crime, and (2) the defendant intentionally assisted in 

that crime. Milton, 821 N.W.2d at 805-06. Although the district court in Milton

instructed the jury that it must find that the defendant “intentionally aided” his 

accomplice, the supreme court concluded that the district court failed to provide an 

explanation of what “intentionally aiding” meant. Id. at 807. That is, the district court 

failed to instruct the jury that it had to find beyond a reasonable doubt that (1) Milton 

knew his accomplices were going to commit a crime, and (2) Milton intended by his 

presence to further the commission of the crime. Id. at 806. 

Here, the district court instructed the jury as follows for each of the three murder 

charges:

Liability for Crimes of Another. The Defendant is 

guilty of a crime committed by another person when the 

Defendant has intentionally aided the other person in 

committing it, or has intentionally advised, hired, counseled 

or conspired with, or otherwise procured the other person to 

commit it.
8

In addition to this instruction on liability for the crimes of another, the district 

court instructed the jury as follows on intent as to the crime of second-degree intentional

murder:1

Timothy Huber, or Delbert Huber aided and abetted by 

Timothy Huber, acted with the intent to kill [T.L.]. To find 

Timothy Huber, or Delbert Huber aided and abetted by 

Timothy Huber, had an intent to kill, you must find that 

Timothy Huber, or Delbert Huber aided and abetted by 

Timothy Huber, acted with the purpose of causing death, or 

believed that the act would have that result.

The district court further instructed the jury that all elements of the charge must be 

proved beyond a reasonable doubt. As to the charge of second-degree murder while 

committing a felony, the jury was instructed that Huber, or Delbert Huber aided by 

Huber, intended to commit the underlying felony offense of second-degree assault and 

that this intent must be proved beyond a reasonable doubt. 

During deliberations, the jury asked for clarification about the meaning of “aiding 

and abetting.” The jury instructions defined “liability for the crimes of another,” but the 

instructions on the elements of the offenses used the language “aiding and abetting.” The 

district court explained that “aiding and abetting” was simply a shorthand way of saying 

“liability for the crimes of another.” It then reread a portion of the instruction concerning 

“liability for the crimes of another.” See 10 Minnesota Practice, CRIMJIG 4.01 (2006). 

Read in conjunction, the instructions on liability for the crimes of another and the 

intent element of the murder charges do not suffer from the same flaw as the Mahkuk

instruction. The jury was instructed to find each element of the offense beyond a 

 

1

 The district court also gave a similar instruction for first-degree murder.
9

reasonable doubt, and not just to “consider” whether presence at the scene of the crime 

was aiding and abetting. But these instructions do not include the additional statements 

required by Milton; even though the district court gave a portion of the standard jury 

instructions for “liability for the crimes of another,” the failure to explain what 

“intentionally aiding” means is error. See Kelley, 855 N.W.2d at 275 (holding that, after 

Milton, failure to define the phrase “intentionally aids” when giving the standard 

accomplice liability jury instruction is plain error).

The state contends nevertheless that the instructions here are similar to those found 

sufficient by the supreme court in State v. Bahtuoh, 840 N.W.2d 804, 813 (Minn. 2013). 

In Bahtuoh, the defendant made the same objection Huber makes here: the district court 

failed to instruct the jury that the defendant must know that his accomplice planned to 

commit a crime and that he intended by his presence to further the commission of the 

crime. Id. at 811. The supreme court noted that the district court did not include this 

language from Milton, but concluded that, as given, the instructions required the jury to 

find that the defendant had a “more culpable state of mind than is required for accomplice 

liability under Minnesota law.” Id. at 814. 

The Bahtuoh instruction for first-degree murder stated:

[T]he defendant, acting alone or intentionally aiding 

and abetting another, acted with the intent to kill [the victim]. 

To find the defendant had an intent to kill, you must find that 

the defendant acted with the purpose of causing death or 

believed that the act would have that result.

Id. (emphasis omitted). The supreme court reasoned that this language did not include 

the flaw in Mahkuk, in which the jury was instructed to “consider” whether the defendant 
10

knew a crime would be committed and whether the defendant intended to encourage 

completion of the crime; this language effectively relieved the state from the burden of 

proving intent. Id. at 813. Even though the Milton language was omitted, the supreme 

court concluded that the requirements of Milton were satisfied because it was clear the 

defendant had to play a knowing role in the commission of the crime. Id. at 814–15.

After careful analysis, we conclude that the instructions here are not similar 

enough to those in Bahtuoh to meet the requirements of Milton. Unlike Bahtuoh, where

the instructions required the jury to find that Bahtuoh himself “acted with the intent to 

kill,” id. at 814, regardless of whether it found that he acted as an accomplice or 

principal, the instructions provided here did not require that same intent. Moreover, 

unlike Bahtuoh, where the word “intentionally” appeared directly before “aiding and 

abetting,” id., the instructions here contained no such clear directive before the critical 

“aiding and abetting” language. And Bahtuoh contained additional language that 

“reinforced the requirement that the jury had to find that Bahtuoh intended his actions to 

further the commission of the crime.” Id. 

In sum, the challenged instructions do not include the required Milton language

that Huber knew Delbert Huber was going to commit a crime and intended his presence 

or actions to further commission of the crime. Nor did the instructions contain language 

that would exceed the Milton requirements or necessarily ensure that they were met, as in 

Bahtuoh. Accordingly, we conclude that the jury instructions were erroneous.
11

2. Plain error

In considering whether the jury instructions given here were plainly erroneous, we 

examine the law in existence at the time of appellate review. Kelley, 855 N.W.2d at 277. 

Because Milton was decided several months before Huber’s trial, the failure to comply 

with the Milton rule is plain error. See id. at 275 (concluding that failure to define the 

phrase “intentionally aids” when giving the standard accomplice liability jury instruction 

is plain error).

3. Substantial rights

The third prong of the plain-error doctrine requires Huber to show that his 

substantial rights were affected by the error. 

The third prong, requiring that the error affect 

substantial rights, is satisfied if the error was prejudicial and 

affected the outcome of the case. The defendant bears the 

burden of persuasion on this third prong. [Appellate courts] 

consider this to be a heavy burden. [Plain error is prejudicial] 

if there is a reasonable likelihood that the giving of the 

instruction in question would have had a significant effect on 

the verdict of the jury.

Griller, 583 N.W.2d at 741 (quotation and citations omitted). In Kelley, the supreme 

court analyzed this prong by noting that “[a]n erroneous jury instruction will not 

ordinarily have a significant effect on the jury’s verdict if there is considerable evidence 

of the defendant’s guilt.” 855 N.W.2d at 283–84. 

Applying these principles here, we conclude that Huber failed to meet his heavy 

burden of showing that the erroneous instruction had a significant effect on the verdict of 

guilty. First, the record shows that Huber directly and vigorously contested the aiding-
12

and-abetting element and offered evidence to the contrary.2 Huber claimed that he was 

not aware that Delbert Huber would shoot T.L., he was not present when the argument 

between T.L. and Delbert Huber started, and T.L. was the aggressor and Delbert Huber

acted in self-defense. 

Second, during deliberations, the jury asked the court for a definition of “aided 

and abetted.” The district court explained that aiding and abetting was older terminology 

for liability for the crimes of another and read the jury instruction explaining when a 

person is liable for the crimes of another. It is clear from the jury’s question that it 

considered this element of the crime. 

Most critically, however, the state offered weighty and convincing evidence to 

show that it was Huber, and not his father, who had a motive to kill T.L.; that Huber 

knew that his father intended to commit, at the very least, second-degree assault against 

T.L.; and that Huber intended, by his many actions on Friday and Saturday, to further the 

commission of the crime against T.L. 

The state’s powerful evidence included these facts: (1) Huber had a lengthy 

history of ill will toward T.L., which included harassing letters and phone calls;

(2) Huber was extremely angry at T.L. after T.L. told him to leave the farm and remove 

 

2 We note that both counsel described the specifics of aiding and abetting liability to the 

jury in their closing arguments. The prosecutor stressed Huber’s active involvement in 

the crime, stating that Huber is “equally responsible” for the killing because “Delbert 

Huber would not have done this without the participation of the Defendant and “[b]ut for 

the contributions of Timothy Huber this murder would not have happened.” The defense 

stressed the knowledge that must be proved beyond a reasonable doubt: “So basically 

what you’re left with is did Tim Huber aid and abet a man that he knew was going to do a 

premeditated murder. Okay. That he intentionally aided somebody who he [knew] was

gonna do a premeditated murder.” 
13

his farm equipment; (3) Huber sought to anger Delbert Huber as well when he falsely 

told Delbert Huber that T.L. had stolen money from him, damaged the farm equipment, 

harassed him, and said that he was going to kill them if they returned to N.L.’s farm; 

(4) Huber had been specifically instructed not to return to N.L.’s farm, but he did so 

twice on the day of the murder; (5) when Huber discovered T.L. was not at the farm the 

first time he arrived that morning, he left and returned again later; (6) Huber knew his 

father brought a gun with him, although Delbert Huber did not usually carry a gun; 

(7) Huber stopped the car so that Delbert Huber could retrieve the gun from the trunk

before they returned to the farm the second time; (8) Huber changed his description of the 

shooting between his first and second interview with police; (9) Huber lied about when 

the shooting occurred and the availability of his cellphone; (10) Huber and Delbert Huber

left T.L.’s body at N.L.’s farm for 12 hours before contacting police; and (11) Huber’s 

testimony in general was not credible, including his description of a brawl between 

Delbert Huber and T.L., his insistence that he stayed in the barn doing chores despite the 

altercation and a gunshot, and his claim that he failed to report the shooting to police 

because he was busy. 

This evidence was strong enough to show that Huber was not an unwitting 

bystander but acted knowingly and intentionally to further his father’s crime against T.L. 

Accordingly, we conclude that Huber fails to meet his heavy burden of showing that his 

substantial rights were affected by the error in the jury instructions.
14

4. Fairness and the integrity of the judicial proceedings

Because Huber failed to satisfy this third prong of the plain-error test, we need not 

consider the final requirement of plain-error analysis, whether the error “seriously 

affect[s] the fairness, integrity or public reputation of judicial proceedings.” Johnson, 

520 U.S. at 469–70, 117 S. Ct. at 1550 (alteration in the original) (quotation omitted); see 

Griller, 583 N.W.2d at 742 (adopting analysis of Johnson). We note, however, that in 

Griller, the supreme court reasoned that Griller had a complete adversarial trial and was 

permitted to present his theory of self-defense, and the jury considered and rejected his 

“far-fetched version of events.” 583 N.W.2d at 742. Under these circumstances, the 

supreme court held that it would be “an exercise in futility and a waste of judicial 

resources” to grant Griller a new trial based on an erroneous jury instruction. Id. 

Because Huber also had a complete adversarial trial and presented his theory of the case 

and his defenses, and the jury was permitted to consider these defenses, we do not believe 

that a new trial is necessary to ensure the fairness and the integrity of judicial 

proceedings, even if Huber had successfully shown all three prongs of the plain-error 

analysis. 

Affirmed.
DS-1

STAUBER, Judge (dissenting)

I respectfully dissent. Despite the considerable latitude given to the district court 

in formulating jury instructions, an instruction, when viewed in its entirety, “must fairly 

and adequately explain the law of the case.” State v. Koppi, 798 N.W.2d 358, 362 (Minn. 

2011). “It is well settled that jury instructions must define the crime charged and explain

the elements of the offense to the jury.” State v. Vance, 734 N.W.2d 650, 656 (Minn. 

2007) (emphasis added), abrogated on other grounds by State v. Fleck, 810 N.W.2d 303 

(Minn. 2012). 

When a defendant is charged with aiding and abetting another in the commission 

of a crime, the state must prove “beyond a reasonable doubt that [the defendant] (1) knew 

his alleged accomplice[] [was] going to commit a crime, and (2) intended his presence to 

further the commission of that crime.” State v. Milton, 821 N.W.2d 789, 806 (Minn. 

2012). Mere presence, failure to intervene, or failure to report a crime is not sufficient; 

proof of “the ‘intentionally aiding’ element requires knowing and intentional assistance 

in the underlying crime.” Id. at 807. 

The majority here agrees that the district court plainly erred by failing to instruct 

the jury that Huber had to know that Delbert Huber was going to commit a crime and 

intend to assist him, but then concludes that Huber fails to show that his substantial rights 

were affected. But “[a]n error affects a defendant’s substantial rights if there is a

‘reasonable likelihood’ that the error had a ‘significant effect’ on the jury’s verdict.” Id.

(quotation and citation omitted). Not only did the district court omit an explanation of an 

essential element of the charged offense by failing to explain what proof is required, but 
DS-2

it is also clear that the jury was confused: the jury submitted a question asking for an 

explanation on precisely this element of the charged offense. 

Unlike the defendant in Milton, the evidence that Huber knew Delbert Huber 

would commit a crime and intentionally assisted him to do so is not overwhelming. 

Huber’s statement places him in the barn doing chores during the altercation between 

Delbert Huber and T.L.; the chance that the 80-year-old Delbert Huber, whom Huber left 

sitting in the car, would take a World War I era rifle and attack a much younger and fitter 

man after a bout of fisticuffs seems remote. On such thin evidence, we should not 

assume that the lack of a proper instruction did not have a significant effect on the jury’s 

verdict. In State v. Watkins, the supreme court concluded that even though the 

defendant’s defense was “questionable,” “the district court’s erroneous instruction 

prevented the jury from considering [the defendant’s] primary defense in rendering its 

verdict.” 840 N.W.2d 21, 31 (Minn. 2013). The supreme court determined that 

“allowing the jury to consider [his] defense will protect the fairness, integrity, and public 

reputation of the judicial proceedings.” Id. When the stakes are as high as they are in 

this case, we should reverse Huber’s conviction to permit a properly instructed jury to 

consider the evidence.