This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).





State of Minnesota,



Michelle Lee Koester,


Filed August 3, 1999


Peterson, Judge


Anoka County District Court

File No. K3984073


Mike Hatch, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Robert M.A. Johnson, Anoka County Attorney, Robert D. Goodell, Assistant County Attorney, Anoka County Government Center, 2100 Third Avenue, Seventh Floor, Anoka, MN 55303 (for respondent)

David E. Albright, 7814 131st Street West, Apple Valley, MN 55124 (for appellant)


Considered and decided by Peterson, Presiding Judge, Short, Judge, and Shumaker, Judge.

U N P U B L I S H E D   O P I N I O N


In this appeal from a judgment of conviction for aiding and abetting second-degree felony murder in violation of Minn. Stat. §§ 609.05, 609.19, subd. 2(1) (1998), appellant argues that her guilty plea was invalid. We affirm.


Appellant Michele Koester was charged with aiding and abetting a second-degree murder committed in the course of a drive-by shooting. The complaint alleged that Koester drove her brother, Jeremy Dean Watson, past Roberto Arellano’s residence, knowing that Watson was armed with a shotgun and intended to shoot at the residence. Watson fired a single shot, which went through the outer wall of the house and killed Eric Ryan Roby.

In a plea agreement, Koester agreed to plead guilty to an amended charge of second-degree felony murder (a severity level IX offense), which would replace the second-degree murder in the course of a drive-by shooting offense charged in the original complaint (a severity level X offense). Koester would be sentenced to 240 months. She also agreed to testify truthfully at her brother’s trial. If she did not do so, the court could reject the plea agreement or reject the agreed-upon sentence.

At the guilty plea hearing, Koester acknowledged signing a plea petition to be entered under the plea agreement. She testified that she had been ill recently with pneumonia and asthma but stated that her ability to make a decision was not impaired. Koester testified that she had had sufficient time to discuss the case with her public defender. She stated that she understood she could be sentenced to as much as 366 months if convicted of the severity level X offense originally charged.

The district court questioned Koester about the effects of the medication she was taking. The prosecutor then moved to amend the complaint to charge the level IX offense as provided in the plea agreement. The court read the original complaint to Koester, who testified that she had had sufficient time to read the complaint and review it with her attorney. Koester stated that she had discussed with her attorney any possible defenses to the original charge. Koester then testified that she understood the amended charge and had had a chance to discuss it with her attorney.

In response to the prosecutor’s questions laying a factual basis for the guilty plea, Koester testified that her brother was angry about an incident that occurred earlier in the day and planned to go to Arellano’s house in Coon Rapids and "shoot his car up." Watson asked to use her car. Koester agreed to drive out to Coon Rapids, hoping to talk her brother out of his plan. She testified that they argued for about three hours.

Koester testified that she finally agreed to drive her brother’s truck past Arellano’s house, knowing that her brother had decided to shoot at the house rather than the car. She testified that she knew that her brother was armed with a shotgun, and that she assumed it was loaded, but was hoping her brother would not go through with it. She testified that they drove by the house once and he did not shoot, but on the second drive by, he fired a single shot. Koester admitted that she had aided and abetted the crime by driving the truck.

Several days before her brother’s trial was scheduled to begin, Koester retained private counsel and requested withdrawal of her guilty plea. Her attorney cited ambiguity in the statutory offense originally charged as grounds for withdrawing the plea. The district court found that Koester’s guilty plea was knowing, intelligent, and voluntary, and denied the motion.


A defendant may withdraw a guilty plea before sentencing if it is fair and just to do so. Minn. R. Crim. P. 15.05, subd. 2. A district court has discretion to allow withdrawal of a guilty plea, and its decision will not be reversed absent an abuse of discretion. State v. Aviles-Alvarez, 561 N.W.2d 523, 525 (Minn. App. 1997), review denied (Minn. June 11, 1997).

To be valid, a guilty plea must be accurate, voluntary, and intelligent. State v. Trott, 338 N.W.2d 248, 251 (Minn. 1983).

The main purpose of the accuracy requirement is to protect the defendant from pleading guilty to a more serious offense than he could properly be convicted of at trial.

Brown v. State, 449 N.W.2d 180, 182 (Minn. 1989).

Koester contends that she should have been permitted to withdraw her guilty plea because there was no factual basis upon which she could have been convicted of second-degree intentional murder under Minn. Stat. § 609.19, subd. 1(2) (1998).

Minn. Stat. § 609.19, subd. 1(2), provides:

Intentional murder; drive-by shootings. Whoever does either of the following is guilty of murder in the second degree and may be sentenced to imprisonment for not more than 40 years:

* * * *

(2) causes the death of a human being while committing or attempting to commit a drive-by shooting * * * .

Minn. Stat. § 609.66, subd. 1e(a) (1998), defines a drive-by shooting as recklessly discharging a firearm at or toward a motor vehicle or a building while in or having just exited from a motor vehicle.

Koester argues that because second-degree intentional murder can only be committed by a person who causes the death of a human being while committing or attempting to commit a drive-by shooting and she did not commit or attempt to commit a drive-by shooting, she could not have been found guilty of second-degree intentional murder.

Koester’s argument is based on the language in Minn. Stat. § 609.05 (1998) (the aiding and abetting statute), which distinguishes between those who commit a crime and those who are criminally liable for crimes committed by another. Minn. Stat. § 609.05, subd. 1 (1998), the subdivision under which Koester was charged, provides:

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.

Koester contends that under the aiding and abetting statute, she is liable for the drive-by shooting, but she did not commit the drive-by shooting. Therefore, because the second-degree intentional murder statute can only be violated by one who commits a drive-by shooting, she could not have been convicted of second-degree intentional murder.

Koester’s argument ignores the fact that she was not charged with or convicted of second-degree intentional murder. She was charged with aiding and abetting second-degree intentional murder in violation of Minn. Stat. § 609.05. Section 609.05 holds one participant in a crime legally responsible for harm caused by another participant. See State v. Jones, 328 N.W.2d 736, 738 (Minn. 1983) (defendant who participated in robbery but did not inflict injury on victim was legally responsible for injury under Minn. Stat. § 609.05); State v. Campbell, 367 N.W.2d 454, 461 (1985) (defendant who did not inflict brutal injuries and psychological terror that preceded murder was legally responsible for these actions under Minn. Stat. § 609.05). Under section 609.05, Koester is liable for the crime committed by her brother even though she did not directly commit that crime herself. The state did not need to prove that Koester committed a drive-by shooting, it only needed to prove that her brother caused the death of a human being while committing or attempting to commit a drive-by shooting and that she intentionally aided his commission of that crime.

Because Koester participated in the drive-by shooting, she can be held legally responsible for the harm caused by her brother when he fired the shotgun at Arellano’s residence. That harm included causing the death of a human being, which is what is required to meet the definition of intentional murder in the second degree under Minn. Stat. § 609.19, subd. 1(2). Consequently, there was a factual basis for convicting Koester of aiding and abetting second-degree intentional murder, and the district court did not abuse its discretion by denying Koester’s motion to withdraw her guilty plea.