Opinion
No. C6-01-1555.
Filed August 13, 2002.
Appeal from the District Court, Hennepin County, File No. 01002629.
Mike Hatch, Attorney General,; and Amy Klobuchar, Hennepin County Attorney, Thomas A. Weist, Assistant County Attorney, (for respondent)
John Stuart, State Public Defender, Steven P. Russett, Assistant Public Defender, (for appellant)
Considered and decided by Anderson, Presiding Judge, Lansing, Judge, and Kalitowski, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2000).
UNPUBLISHED OPINION
Appellant argues the testimony of two accomplices was not sufficiently corroborated under Minn. Stat. § 634.04 (2000), and, consequently, he argues his conviction for aiding aggravated robbery in the first degree must be reversed. Because the accomplices' testimony was sufficiently corroborated by other direct and circumstantial evidence indicating appellant's guilt, we affirm.
FACTS
In the fall of 2000, Spencer Coleman (Coleman) and his girlfriend Andrea Bolin (Bolin) lived in the basement of Bolin's grandparents' home in Bloomington, Minnesota. Coleman testified that he had socialized with appellant only two to three times when appellant first asked him to buy illegal drugs for appellant's personal use. Appellant gave Coleman approximately $675 to buy the drugs; but the person Coleman gave the money to for the drugs absconded with the $675. Coleman obtained drugs for appellant on several occasions during the next few weeks. Appellant, however, became increasingly angry with Coleman because Coleman was unable to refund the $675.
On the afternoon of January 7, 2001, appellant called L.M., a former co-worker, and, according to L.M., asked him whether he "wanted to go collect money" and be "compensated." L.M. contacted his friend B.A. and told him there was a way for them to make some money by confronting a person who owed his friend (appellant) money.
The men drove to appellant's home and B.A. met appellant for the first time. Appellant told the men he wanted them to go to Coleman's apartment and "get money or drugs." Appellant retrieved a map of Coleman's apartment, and showed the men where they could find the money or, in the alternative, the drugs. B.A. and L.M. testified appellant told them to take his 9mm handgun with them and use it if they needed to use it. Both men testified appellant gave them the handgun right before they left his vehicle and entered Coleman's apartment.
That evening, Coleman and Bolin were present in their basement apartment when Bolin's grandfather admitted two men to speak with Coleman. Coleman did not recognize either man. The two men, later identified by Coleman and Bolin as L.M. and B.A., demanded Coleman give them "the money" or "the product" and brandished appellant's handgun. Coleman understood the reference to "the product" as a demand for drugs. The men entered the basement bedroom and began to search the drawers and VCR cabinet. The men discovered a safe that contained marijuana, illicit prescription drugs, and drug paraphernalia. The men seized the contents of the safe and left the basement and the home.
While Bolin spoke to a 911 dispatcher, Coleman followed the men outside the home and noticed a black two-door sedan parked near the home. Based on Coleman's description of the vehicle parked near his home, the police immediately stopped appellant's vehicle, which appellant was operating without its headlights turned on. At the scene, Coleman and Bolin identified L.M. and B.A. as the men who were in their apartment and told the police they knew appellant. Police discovered marijuana, appellant's handgun with a loaded magazine, and 9mm ammunition, all in appellant's vehicle. Police executed a search warrant at appellant's home and discovered a note with directions to Coleman's home, the map of the basement apartment, another loaded 9mm magazine, and a box of 9mm ammunition.
Appellant disputed L.M.'s and B.A.'s testimony. Appellant testified L.M. called him on the evening of January 7 and L.M. and B.A. arrived at his home a short time later. According to appellant, L.M. suggested they go to Coleman's apartment and "get [appellant's] money." Appellant stated that he gave $675 to Coleman because Coleman's girlfriend needed to have a medical procedure performed and Coleman did not have any money for the procedure. Appellant specifically disputed B.A.'s testimony and stated that he did not know that the men brought his gun into Coleman's apartment. He stated that he did not enter Coleman's apartment with the men because he was black and Bolin's grandparents did not allow black people in their home. He also maintained that he has never used drugs.
Appellant, however, admitted that he drove L.M. and B.A. to Coleman's home and, using the map, told the two men where the money might be located in the apartment. He admitted that he owned the handgun used in the robbery and that he placed the gun in his vehicle approximately four days before the robbery. The jury found appellant guilty of aiding aggravated robbery in the first degree, a violation of Minn. Stat. §§ 609.05, 609.24, 609.245 (2000), and the district court sentenced him to 48 months in prison. This appeal followed.
DECISION
To convict a defendant of aiding aggravated robbery in the first degree, the state must prove the defendant aided another person or persons in committing a robbery and that the person or persons were armed with a dangerous weapon when committing the robbery. Minn. Stat. §§ 609.05, 609.24, 609.245; see also CRIM JIG 14.04 (directing that the state must prove beyond a reasonable doubt that the person committing a simple robbery was armed with a dangerous weapon and defining "dangerous weapon" as "[a] firearm whether loaded or unloaded"). A defendant is also guilty of aiding aggravated robbery in the first degree if that crime was reasonably foreseeable by the defendant as a probable consequence of aiding the commission of a simple robbery. See Minn. Stat. § 609.05, subd. 2.
Appellant admits he arranged to have L.M. and B.A. confront Coleman and that he was ostensibly guilty of aiding simple robbery. But appellant maintains the state failed to corroborate L.M.'s and B.A.'s claim that he gave them his gun to use during the robbery. Appellant contends the presence of the handgun and loaded magazine in his vehicle, and the 9mm ammunition and loaded magazine found during the search of his home, only demonstrates that he owned the gun used during the robbery. Consequently, appellant argues the state failed to prove beyond a reasonable doubt that he encouraged L.M. and B.A. to use the gun or that it was reasonably foreseeable that they would use the gun during the robbery.
Under Minnesota law, a conviction may not be obtained solely on the uncorroborated testimony of an accomplice. State v. Pederson, 614 N.W.2d 724, 732 (Minn. 2000). Minn. Stat. § 634.04 (2000) provides:
The state does not dispute that L.M. and B.A. are both accomplices for purposes of Minn. Stat. § 634.04. See State v. Pippitt, 645 N.W.2d 87, 93 (Minn. 2002) ("If a witness could have been indicted and convicted for the crime with which the accused is charged, the witness is an accomplice for purposes of section 634.04." (citations omitted)). According to appellant, B.A. pleaded guilty to aggravated robbery in the first degree and had a 48-month prison sentence "hanging over [his] head" as a condition of his probation. L.M. planned to plead guilty to aggravated robbery in the first degree and testified in the state's rebuttal case with the hope that his testimony would result in a more lenient sentence.
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.
We review the sufficiency of corroborating evidence of an accomplice's testimony in the light most favorable to the state, and all conflicts in the evidence are resolved in favor of the jury's verdict. State v. Pippitt, 645 N.W.2d 87, 93 (Minn. 2002); State v. Nelson, 632 N.W.2d 193, 202 (Minn. 2001). "The quantum of corroborative evidence needed necessarily depends on the circumstances of each case." State v. Adams, 295 N.W.2d 527, 533 (Minn. 1980) (citation omitted). But accomplice testimony need not "be corroborated on every point or element of the crime." State v. Lemire, 315 N.W.2d 606, 610 (Minn. 1982) (citations omitted).
Corroborative evidence must restore confidence in an accomplice's testimony, confirming its veracity and indicating the defendant's guilt in a substantial way. State v. Hooper, 620 N.W.2d 31, 39 (Minn. 2000); State v. Johnson, 616 N.W.2d 720, 727 (Minn. 2000) ("Corroborating evidence * * * may be direct or circumstantial [and] need not establish a prima facie case of the defendant's guilt * * *." (citation omitted)).
An accomplice's testimony "may not be corroborated solely by the testimony of another accomplice." State v. Harris, 405 N.W.2d 224, 227 (Minn. 1987) (citations omitted). But "a person's presence, companionship, and conduct before and after an offense are relevant circumstances from which a person's criminal intent may be inferred." State v. Ostrem, 535 N.W.2d 916, 924 (Minn. 1995) (citations omitted).
Corroborating evidence may be secured from the defendant's association with those involved in the crime in such a way as to suggest joint participation, as well as from the defendant's opportunity and motive to commit the crime and his proximity to the place where the crime was committed.
Adams, 295 N.W.2d at 533 (citation omitted). If a defendant testifies, admissions and inadequacies in that testimony may corroborate an accomplice's testimony. Id.
We conclude there is significant corroborating evidence that appellant aided L.M.'s and B.A.'s use of his 9mm handgun during the robbery. This corroborating evidence, moreover, restored confidence in L.M.'s and B.A.'s testimony, confirming its veracity and indicating appellant's guilt in a substantial way. Hooper, 620 N.W.2d at 39.
First, both the 9mm handgun and ammunition, including a loaded magazine, were found in appellant's vehicle when the police stopped it after the robbery. The police discovered another 9mm magazine and ammunition in appellant's home when they executed a search warrant. See Adams, 295 N.W.2d at 533 (stating that if a defendant's "connection to the crime may be fairly inferred from th[e] circumstances, the corroboration is sufficient" (citation omitted)); State v. Sorg, 275 Minn. 1, 5, 144 N.W.2d 783, 786 (1966) (stating that "possession of an instrument or instruments * * * used to commit the offense" may corroborate accomplice testimony).
Second, appellant admitted he placed the handgun in his vehicle four days before the robbery and therefore L.M. and B.A. had access to both the handgun and ammunition on the evening of the robbery. Adams, 295 N.W.2d at 533 (stating that a defendant's admissions may corroborate accomplice testimony).
Third, appellant's testimony concerning why he placed the handgun in his vehicle four days before was not credible. On cross examination, appellant admitted that (1) he was a veteran; (2) he knew how to properly store a dangerous weapon; and (3) he knew that placing the weapon in his vehicle was not a safe way to store the weapon. Id.(stating that inconsistencies in a defendant's testimony may corroborate accomplice testimony); Sorg, 275 Minn. at 5, 144 N.W.2d at 786 (stating that "suspicious and unexplained conduct of the accused either before or after the offense" may corroborate accomplice testimony).
Finally, appellant's contention that L.M. and B.A. used the handgun on the night in question without his express consent or direction is at best implausible, and, most likely, unbelievable. Appellant is approximately twenty years older than L.M. and B.A. and common sense dictates that appellant's relative position of authority over L.M. and B.A. reduces the likelihood that they would use the gun on their own volition without appellant's express consent or direction. Sorg, 275 Minn. at 5, 144 N.W.2d at 786 (noting the relevance of suspicious and unexplained conduct to corroborate accomplice testimony).
The combination of this direct and circumstantial evidence sufficiently corroborates L.M.'s and B.A.'s testimony that appellant directed them to use his handgun during the robbery because it reinforces the truth of their testimony and points to appellant's guilt in a substantial way.