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1. The district court erred when it incorrectly instructed the jury on the " intent to steal" element of burglary. However, there is no reasonable likelihood that the error substantially affected the verdict.
2. Although the district court erred by instructing the jury that it did not need to consider lesser offenses if it found appellant guilty of a more serious charge, the error was not plain.
3. The district court did not abuse its discretion when it excluded alternative-perpetrator evidence because the evidence was irrelevant or hearsay, and, therefore, inadmissible.
4. The district court did not err under Minn. R. Crim. P. 26.03 when it proceeded without appellant present during parts of his trial.
For Respondent: Lori Swanson, Attorney General, Saint Paul, Minnesota; and Michael O. Freeman, Hennepin County Attorney, Kelly O'Neill Moller, Assistant County Attorney, Minneapolis, Minnesota.
For Appellant: Cathryn Middlebrook, Chief Appellate Public Defender, Richard Schmitz, Assistant Public Defender, Saint Paul, Minnesota.
Following a jury trial, appellant Gregory Antoine Davis was found guilty of unlawful possession of a firearm, Minn. Stat. § 624.713, subd. 1(2) (2014), and first-degree felony murder, Minn. Stat. § 609.185(a)(3) (2014). The district court adjudged Davis guilty of both offenses and sentenced him to life in prison with the possibility of release. In this direct appeal, Davis argues that he is entitled to a new trial on any of the following four grounds: (1) the district court erroneously instructed the jury on an element of burglary, the predicate offense for the felony-murder charge; (2) the district court erred in its jury instructions by suggesting the order in which the jury should consider the charges; (3) the district court abused its discretion by excluding certain reverse- Spreigl evidence;  and (4) the district court violated Minn. R. Crim. P. 26.03, subd. 1, when it proceeded with the trial in Davis's absence. Because Davis has not established that the district court committed reversible error, we affirm.
Brianna Jones was shot to death on December 22, 2011, in the lower-level unit of a Minneapolis duplex that she shared with her boyfriend, D.M. Several other family members, including D.M.'s mother, A.M., lived with them. Davis was A.M.'s boyfriend. D.M. discovered Jones's body when he arrived home from work and saw her lying on the living-room floor, having been shot once in the left temple. Clothing, electronics, and luggage were strewn about the apartment. Jewelry and other items, including a gun that belonged to D.M., were missing.
Investigators questioned Jones's upstairs neighbors, who told them that, on the date of the murder, a man who was not D.M. was at the door of Jones's apartment. A few months earlier, D.M. had a confrontation with one of the upstairs neighbors in Jones's apartment. That neighbor told the investigators that the man who was at Jones's apartment when the murder occurred was the same man who had been in her apartment during the neighbor's earlier confrontation with D.M. D.M. later identified Davis as the man who had been in the apartment during the confrontation.
Investigators conducted an initial interview with Davis on January 1, 2012. Davis said that, on December 22, he attended several appointments in the morning and in the early afternoon he went to Target in Brooklyn Center and then drove back to A.M.'s apartment. Investigators confirmed that Davis had gone to Target on December 22, but he was there at a later time than he had suggested to them. When investigators searched Davis's St. Paul apartment on January 3, they found several of the stolen items, including jewelry and D.M.'s gun, which they subsequently determined was the murder weapon.
Shortly after the search was completed, Davis was arrested and investigators interviewed him again. He initially did not
respond when asked why he had the murder weapon. When questioned further, Davis said that he had received a call and was asked to help with a burglary. Davis characterized the incident in Jones's apartment as a burglary that went " bad." Davis was subsequently indicted for first-degree felony murder.
While in custody awaiting trial, Davis discussed the murder with another inmate. Davis claimed that, among other things, the burglary was part of a scam to take items from the apartment temporarily so that the tenants could avoid paying rental fees for the items. The inmate subsequently testified at trial about Davis's explanations for the burglary and murder and indicated that Davis's explanations were unconvincing.
Before trial, Davis moved to introduce reverse- Spreigl evidence to support an alternative-perpetrator defense: that D.M., Jones's boyfriend and the owner of the murder weapon, committed the murder. The district court ruled that certain evidence supporting the alternative-perpetrator defense was admissible, but it excluded other reverse- Spreigl evidence involving D.M.'s past conduct.
After several days of trial, Davis delayed the start of the day's proceedings for a second time by initially refusing to leave the jail. Davis's attorney told the district court that Davis did not want to be present in the courtroom during the testimony of a particular witness. When Davis subsequently confirmed the reason for his absence, the district court advised Davis that it was unnecessary to refuse future transport from jail to court because the district court would ensure that Davis would not be present when the witness testified. The district court also warned Davis that if he refused transport again, the district court would assume that Davis was absent without justification and that the trial would proceed without him. Davis confirmed that he understood. Several days later, when Davis refused to attend closing arguments, Davis's attorney informed the district court that she had advised Davis that his absence would be deemed a voluntary waiver. The district court ruled that Davis had voluntarily waived his right to be present by refusing to attend the proceeding.
Later that day, when the district court replayed the audio recording of Davis's post-arrest interview, Davis again refused to attend. As before, the district court ruled that Davis's refusal to attend the proceeding was a voluntary absence. Davis's attorney did not object to the district court's decision to proceed.
The jury subsequently found Davis guilty of first-degree felony murder and unlawful possession of a firearm. The district court convicted Davis of first-degree felony murder, in violation of Minn. Stat. § 609.185(a)(3), and sentenced him to ...