Opinion
No. C7-96-12.
Filed October 8, 1996.
Appeal from the District Court, Hennepin County, File No. 95019809.
Hubert H. Humphrey III, Attorney General, (for Respondent)
Michael O. Freeman, Hennepin County Attorney, Paul R. Scoggin, Assistant County Attorney, (for Respondent)
John M. Stuart, State Public Defender, Susan J. Andrews, Assistant State Public Defender, (for Appellant)
Considered and decided by Kalitowski, Presiding Judge, Lansing, Judge, and Willis, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1996).
UNPUBLISHED OPINION
Appellant challenges his convictions of second-degree murder, attempted second-degree murder, and two counts of second-degree assault, contending: (1) there was insufficient corroboration of the accomplice's testimony, and (2) he was denied his right to be present at the return of the verdict or at a critical stage of the trial. We affirm.
DECISION I.
Appellant contends that Phong Thanh Nguyen, a.k.a. Shyboy, was an accomplice and the evidence was insufficient to corroborate his testimony. We disagree. An appellate court, in reviewing the sufficiency of evidence corroborating an accomplice's testimony, views the evidence in the light most favorable to the state and resolves any conflicts in the evidence in favor of the verdict. State v. Adams, 295 N.W.2d 527, 533 (Minn. 1980).
Because the trial court could have found that Shyboy was an accomplice, corroboration of his testimony was required:
A conviction cannot be had upon the testimony of an accomplice, unless it is corroborated by such other evidence as tends to convict the defendant of the commission of the offense, and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof.
Minn. Stat. § 634.04 (1994). Corroborating evidence is sufficient if it is "weighty enough to restore confidence in the accomplice's testimony, confirming its truth and pointing to the defendant's guilt in some substantial degree." State v. Norris, 428 N.W.2d 61, 66 (Minn. 1988) (citing State v. Houle, 257 N.W.2d 320, 324 (Minn. 1977)). Corroborating evidence may be direct or circumstantial and must link or connect the defendant to the crime. Adams, 295 N.W.2d at 533. The corroborating evidence need not establish a prima facie case of the defendant's guilt. State v. Cooper, 296 Minn. 48, 51, 206 N.W.2d 356, 358 (1973).
Shyboy testified that appellant proposed a visit to the Pho 79 Restaurant to confront "Minneapolis Boys" gang members believed to be responsible for shooting at appellant's car. Sang Dao corroborated Shyboy's testimony by testifying: (1) he received a phone call from a friend telling him not to go to the Pho 79 Restaurant because the "Minneapolis Boys" were there; (2) he conversed rather loudly on the phone while appellant sat within possible hearing distance in the same room; and (3) a group of men, including appellant, left Sang Dao's house about 15 minutes after the phone conversation.
In addition, other evidence supported Shyboy's version of events: (1) Mary Johnson testified that she saw a tall Asian male "kind of trying to peek through the door" of the Pho 79 Restaurant before entering, suggesting that appellant was looking for somebody; (2) Lyle Wray and Hung Viet Pham, a.k.a. Smokey, testified that appellant struck Tu Nguyen just before Shyboy and Smokey fired their guns, suggesting a preconceived plan; and (3) Mary Johnson and Lyle Wray testified that the entire incident occurred in a very short period of time, also suggesting a preconceived plan.
The following admissions by appellant further corroborated Shyboy's testimony: (1) gang members shot at appellant's car in March; (2) appellant and two other drivers provided transportation to the parking lot near the Pho 79 Restaurant; (3) appellant parked a block and a half from the Pho 79 Restaurant, despite an adjacent parking lot; (4) appellant walked from the parking lot to the Pho 79 Restaurant with five men, including Smokey and Shyboy; (5) appellant believed that others in his group carried handguns; (6) appellant confronted the victims in the Pho 79 Restaurant and struck Tu Nguyen; and (7) appellant provided transportation from the crime scene for the five men who had accompanied him.
Viewing the evidence in the light most favorable to the state, we conclude that Shyboy's testimony was sufficiently corroborated to support appellant's convictions.
II.
Appellant contends he was denied his right to be present at the return of the verdict. In the alternative, he contends he was denied a right to be present at a critical stage of the trial. We disagree.
Defendants in Minnesota have a right to be present at "every stage of the trial including * * * the return of the verdict * * *." Minn.R.Crim.P. 26.03, subd. 1(1). In trials without a jury, no verdict can be returned because a "verdict" is defined as a "formal decision or finding made by a jury." Black's Law Dictionary 1559 (6th ed. 1990). Instead, the court
within 7 days after the completion of the trial, shall make a general finding of guilty [or] not guilty * * * [and] within 7 days after the general finding * * * shall in addition specifically find the essential facts in writing on the record.
Minn.R.Crim.P. 26.01, subd. 2. When appellant waived a jury trial, he waived a jury's "return of verdict." Further, appellant cites no authority for the proposition that a court finding of guilty is a "critical stage of a trial" that requires his presence.
Finally, we have reviewed appellant's pro se brief asserting that we should adopt the "thirteenth juror" standard of review and claiming prosecutorial misconduct. We conclude these arguments are without merit.