This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Philip Stephen Hoskins,
Filed July 11, 2000
Stearns County District Court
File No. K3-98-3255
Mike Hatch, Attorney General, Thomas Rolf Ragatz, Assistant Attorney General, 525 Park St., Suite 500, St. Paul, MN 55103; and
Roger S. Van Heel, Stearns County Attorney, Administration Center, Room 448, 705 Courthouse Square, St. Cloud, MN 56303 (for respondent)
John M. Stuart, State Public Defender, Michael F. Cromett, Assistant State Public Defender, 2829 University Ave. S.E., Ste. 600, Minneapolis, MN 55414-3230 (for appellant)
Considered and decided by Kalitowski, Presiding Judge, Klaphake, Judge, and Foley, Judge.
U N P U B L I S H E D O P I N I O N
On appeal from a conviction of simple robbery and attempted simple robbery, appellant Philip Stephen Hoskins argues that the testimony of two accomplices was insufficiently corroborated to support the conviction. Hoskins also contends he was denied his right to the effective assistance of counsel when his trial attorney did not request a jury instruction concerning corroboration of accomplice testimony. Hoskins further argues that the trial court erred in admitting evidence of an incident eight months later in which Hoskins also illegally entered a dorm room, but for purposes of retaliation rather than robbery. Finally, Hoskins alleges that the prosecutor committed prejudicial misconduct by eliciting “vouching” testimony and by arguing facts outside the record and injecting broader social issues in closing argument. We affirm.
Minnesota law requires that when an accomplice testifies against a defendant, the accomplice testimony must be corroborated by independent evidence. Minn. Stat. § 634.04 (1998). Corroborating evidence may be obtained from the defendant’s association with those involved in the crime, as well as from the defendant’s opportunity and motive to commit the crime and his or her proximity to the place where the crime was committed. State v. Jones, 347 N.W.2d 796, 800 (Minn. 1984).
Under Minn. Stat. § 634.04, accomplice testimony cannot be corroborated by that of another accomplice. State v. Armstrong, 257 Minn. 295, 308, 101 N.W.2d 398, 407 (1960). In this case, Hoskins argues that the only evidence corroborating the accomplice testimony of Kenyata Arradondo was accomplice testimony provided by David Pratt and unreliable testimony from Hoskins’s former girlfriend, Leanna Lange. Hoskins further argues that the trial court erred in failing to instruct the jury on the need for independent corroboration of accomplice testimony.
In addition to the accomplice testimony of Arradondo and Pratt, Lange, who was not an accomplice, testified that Hoskins admitted to her that he was involved in the robbery. We must assume the jury believed her testimony. See State v. Dickerson, 481 N.W.2d 840, 843 (Minn. 1992) (appellate courts show great deference to fact finder’s determinations of witness credibility), aff’d, 508 U.S. 366, 113 S. Ct. 2130 (1993). Hoskins matched the description given by the witnesses. And he admitted to being in the dormitory where the robbery occurred and to talking to Arradondo shortly before the robbery took place. Moreover, his friends testified that Hoskins was at the university at the time of the robbery and was not with them for at least 30 minutes near the time of the robbery.
The record establishes that there was other evidence that corroborated Arrandondo’s testimony besides Pratt’s testimony. See State v. McKenzie, 532 N.W.2d 210, 223 (Minn. 1995) (requiring corroborating evidence confirm truth of accomplice’s testimony and point to defendant’s guilt in some substantial degree); State v. Scruggs, 421 N.W.2d 707, 713 (Minn. 1988) (holding corroborating evidence must link or connect defendant to crime, but it is not necessary that it establish prima facie case of defendant’s guilt); State v. Norris, 428 N.W.2d 61, 66 (Minn. 1988) (holding appellate courts review circumstantial evidence corroborating accomplice’s testimony in light most favorable to verdict). Even if failure to submit to the jury the question of whether Pratt was an accomplice was error, it was harmless error. See Minn. R. Civ. P. 61 (requiring courts to disregard any error that does not affect substantial rights of parties).
Because the lack of an instruction did not affect Hoskins’s substantial rights, we cannot say his counsel provided ineffective assistance by not requesting a jury instruction on the requirement that accomplice testimony must be corroborated by evidence other than another accomplice’s testimony. State v. Lahue, 585 N.W.2d 785, 789 (Minn. 1998) (holding that to show ineffective assistance of counsel, a defendant must show representation was unreasonable and there is “reasonable probability” trial outcome would have been different but for counsel’s errors).
Hoskins also argues that the trial court abused its discretion in admitting Spreigl evidence of a subsequent crime. The record shows similarities in the two crimes, which occurred within eight months of each other. Hoskins has not met his burden of showing a clear abuse of discretion, so this court will not reverse the trial court’s decision to admit the Spreigl evidence. See State v. DeWald, 464 N.W.2d 500, 503 (Minn. 1991) (“[a]dmission of Spreigl evidence rests within the sound discretion of the trial court and a trial court’s ruling will not be disturbed absent a clear abuse of discretion.”); Scruggs, 421 N.W.2d at 715 (refusing to reverse trial court’s admission of Spreigl evidence unless an abuse of discretion clearly shown).
Finally, Hoskins’s arguments that the prosecutor committed misconduct by eliciting “vouching” testimony and by arguing facts and issues outside the record are not persuasive and do not constitute reversible error. See State v. Wahlberg, 296 N.W.2d 408, 420 (Minn. 1980) (holding appellate courts should reverse based on prosecutorial misconduct only when, viewed in light of entire record, it appears to be inexcusable and so serious and prejudicial that defendant’s right to fair trial was denied).
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.