2012-M-216           State of Minnesota, Respondent, vs. Brandon Dominic Cox, Appellant.

A Hennepin County jury found Brandon Dominic Cox guilty of first-degree felony murder, second-degree intentional murder, and being a prohibited person in possession of a firearm for the shooting death of cab driver James Moody.  Following the jury’s verdicts, the Hennepin County District Court convicted Cox of each count, including the second-degree murder count.  The court then sentenced Cox to life in prison with the possibility of parole on the first-degree felony murder conviction, and to a 60-month concurrent sentence on the prohibited person in possession of a firearm conviction; but, the court did not sentence Cox on the second-degree intentional murder conviction. 

On appeal, Cox makes three arguments: (1) the court erred by failing to instruct the jury that it could not find Cox guilty based on uncorroborated accomplice testimony, (2) the court erred by instructing the jury to continue deliberating after the jury indicated it was deadlocked, and (3) the court erred by convicting Cox of both first- and second-degree murder.  We vacate Cox’s second-degree intentional murder conviction, but we otherwise affirm Cox’s convictions.

HELD:  First, the district court did not abuse its discretion when it declined to give an accomplice liability instruction to the jury because the defendant failed to present sufficient evidence that the alleged accomplice could have been indicted and convicted of the same crime as the defendant.

Second, the district court did not abuse its discretion when, after receiving a note from the jury indicating that it may become deadlocked, the court instructed the jury to continue deliberation because the jury was not currently deadlocked and the court did not coerce the jury to reach a unanimous verdict.

Third, the district court erred when it convicted the defendant of both first-degree felony murder and second-degree intentional murder because under Minn. Stat. § 609.04, subd. 1 (2010), second-degree intentional murder is a lesser-included offense of first-degree felony murder and a defendant cannot be convicted of both offenses.

Affirmed in part, reversed in part, and vacated in part.

            Paul Anderson (Gildea, Page, Barry Anderson, Dietzen, Stras)

[MURDER]