This opinion will be unpublished and

May not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C0-00-1752

 

 

In the Matter of the Welfare of: E.C.G.

 

 

Filed May 8, 2001

Affirmed

G. Barry Anderson, Judge

 

Redwood County District Court

File No. J70050010

 

Mike Hatch, Minnesota Attorney General, 525 Park Street, Suite 500, St. Paul, MN  55103; and

 

Michelle A. Dietrich, Redwood County Attorney, P.O. Box 130, Redwood Falls, MN  56283 (for respondent)

 

Charlann E. Winking, Assistant State Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN  55414 (for appellant)

 

            Considered and decided by Halbrooks, Presiding Judge, Lansing, Judge and G. Barry Anderson, Judge

U N P U B L I S H E D  O P I N I O N

G. BARRY ANDERSON, Judge

            In this appeal from his conviction for first-degree burglary and felony theft, appellant argues that the police stop of the vehicle in which he was a passenger was not based on reasonable suspicion.  Appellant further argues that his convictions are not supported by sufficient evidence because the testimony of an alleged accomplice was not properly corroborated.  We affirm. 

FACTS

            On January 11, 2000, Scott and Sandra Brinkman hosted a dinner at their residence in rural Wabasso, Redwood County, Minnesota.  Sandra left the residence shortly after the dinner to attend a junior varsity basketball game.  After the game she returned home.  At approximately 6:00 p.m., Sandra left again, this time to attend the varsity basketball game.  At this time, she observed no evidence of burglary or break-in. 

            Scott Brinkman arrived at the varsity game at approximately 7:00 p.m.  Upon his arrival at the game, Mr. Brinkman noticed appellant E.C.G. standing near the entry door to the gymnasium.  The two made eye contact.  Appellant was attending the game with Darin Guetter.  They left the building at approximately 7:40 to 7:50 p.m. 

            After the basketball game, Ms. Brinkman returned home, arriving at approximately 8:40 p.m.  The trip took approximately 6-7 minutes.  Upon her arrival, Ms. Brinkman noticed that the home had been burglarized and that numerous items, including several firearms, had been taken.  Ms. Brinkman contacted the Redwood County Sheriff’s Department. 

            Deputy James Meyer arrived at the residence a short time later.  Meyer was made aware of the various items that were taken, including a glass jar with a blue lid containing coins and currency.  Meyer first checked the property for tracks or a vehicle, and to see if anyone was hiding somewhere on the property.  He then decided to expand his search and canvass the immediate area in his squad car for potential witnesses because he believed the burglary had just occurred. 

            Meyer arrived at an intersection a short distance from the Brinkman residence.  His squad car was stopped at a stop sign or yield sign when he observed a car traveling westbound towards the intersection.  Meyer testified that the car was traveling very slowly as it approached his position.  The car had the right of way, yet it slowed and attempted to yield to Meyer’s marked squad car.  The car then passed through the intersection. 

            Meyer stopped the vehicle because of the suspicious manner in which it negotiated the intersection and to determine whether the passengers may have seen anything suspicious in the area.  As Meyer approached the vehicle, he saw a jar containing coins and currency lying on the back floor of the vehicle.  The jar was in plain view, and matched the description given by the Brinkmans of a jar that had been taken from the residence that evening.  Meyer took the occupants of the vehicle, appellant and J.L., into custody and had the vehicle towed to the law enforcement center. 

            J.L. was given the opportunity to give a statement in which he told officers that appellant had put the money jar in his car.  J.L. later testified for the state at appellant’s trial.  Appellant was charged with one count of burglary in the second degree, in violation of Minn. Stat. § 609.582, subd. 2(a), and two counts of theft in violation of Minn. Stat. § 609.52, subd. 2(1) (1998). 

            Prior to trial, appellant challenged the stop of the car and moved to suppress the money jar that was discovered following the stop.  The motion was denied and the matter went to trial, where appellant was found guilty of burglary in the second degree and theft, and later adjudicated delinquent.  This appeal followed. 

D E C I S I O N

I.

 

When reviewing pretrial orders on motions to suppress evidence, we may independently review the facts and determine, as a matter of law, whether the district court erred in suppressing--or not suppressing--the evidence. 

 

State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999) (citing State v. Othoudt, 482 N.W.2d 218, 221 (Minn. 1992)).  Appellant challenges the stop of J.L.’s car on the basis that the officer did not have a particularized and objective basis for suspecting appellant or J.L. of criminal activity. 

            Meyer testified that he stopped the vehicle for two reasons: to locate potential witnesses and because the vehicle had proceeded through the intersection in a very slow and suspicious manner.  It follows, then, that if either of Meyer’s reasons for pulling over the vehicle was reasonable, the stop was valid. 

Meyer testified that J.L.’s cautious or hesitant driving drew attention to the vehicle, and that it was “suspicious.”  Generally, “[a]n investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity.”  United States v. Cortez, 449 U.S. 411, 417-18, 101 S. Ct. 690, 694-95 (1981).  An investigatory vehicle stop is a seizure.  State v. Greyeagle, 541 N.W.2d 326, 328 (Minn. App. 1995). 

[W]hen a person is seized, courts must suppress evidence gathered as a result of that seizure only when the seizure was unreasonable. The brief seizure of a person for investigatory purposes is not unreasonable if an officer has a particular and objective basis for suspecting the particular person [seized] of criminal activity.  The officer may justify his decision to seize a person based on the totality of the circumstances and may draw inferences and deductions that might elude an untrained person.

 

Harris, 590 N.W.2d at 99 (citations and quotations omitted).  We review the legality of a limited investigatory stop and questions of reasonable suspicion de novo.  State v. Munson, 594 N.W.2d 128, 135 (Minn. 1999). 

It has been previously noted by this court that a driver’s reaction to the presence of a law enforcement officer may be a critical factor in justifying a stop.  State v. Saffeels, 484 N.W.2d 429, 431 (Minn. App. 1992), review denied (Minn. June 1, 1992).  Meyer testified that he found the overly slow and hesitant nature of the vehicle’s travel through the intersection to be suspicious.  The district court’s findings on the credibility of this testimony “is binding on this court, unless clearly erroneous.”  Id.  Meyer’s credibility has not been put at issue here. 

            An actual traffic violation is not required to justify a stop.  Warrick v. Commissioner of Pub. Safety, 374 N.W.2d 585, 586 (Minn. App. 1985).  In fact, innocent activity can justify the suspicion of criminal activity.  State v. Johnson, 444 N.W.2d 824, 826 (Minn. 1989).  The threshold required for an investigatory stop is very low.  State. v. Claussen, 353 N.W.2d 688, 690 (Minn. App. 1984).  Seemingly minor details may support an investigatory stop.  See State v. Barber, 308 Minn. 204, 207, 241 N.W.2d 476, 477 (1976) (holding stop was legal when officer saw car with license plates wired, rather than bolted, on the car).  The facts regarding the vehicle’s overly cautious movement as it approached the intersection are not disputed here.  We must “simply analyze the testimony of the officer and determine whether, as a matter of law, his observations provided an adequate basis for the stop.”  Berge v. Commissioner of Pub. Safety, 374 N.W.2d 730, 732 (Minn. 1985). 

            In State v. Haataja, 611 N.W.2d 353 (Minn. App. 2000), review denied (Minn. July 25, 2000), we held that an officer observing an unusually slow moving vehicle had reasonable, articulable suspicion that the driver was somehow impaired, and therefore had an adequate basis for stopping the vehicle.  Id. at 355.  In State v. Johnson, a state trooper was waiting to turn onto a highway when he made eye contact with the driver of a passing truck.  444 N.W.2d at 825.  The truck then immediately turned off onto a side road in an apparent effort to avoid the trooper.  Id.  The Johnson court concluded that:

While [the driver’s] behavior may have been consistent with innocent behavior, it also reasonably caused the officer to suspect that [he] was deliberately trying to evade him.  In short, the record we have on appeal in this case indicates that the trooper reasonably inferred that [the driver] was deliberately trying to evade him and that, as a result, the trooper reasonably suspected petitioner of wrongdoing. 

 

Id. at 827.  We conclude that Johnson and Haataja control here because the occupants of the vehicle had an opportunity to see Meyer in his marked squad car as they approached the intersection, attempted to yield to Meyer despite having the right-of-way, and proceeded in an overly cautious manner through the intersection.  Because Meyer could reasonably infer from these facts that the vehicle was attempting to avoid him, Meyer had a particular and objective basis to make the stop.  Accordingly, we hold constitutionally valid the investigatory stop of the vehicle that led to appellant’s arrest and convictions. 

            Meyer also justified his stop of the vehicle as an attempt to locate potential witnesses in the immediate vicinity of a recently committed crime.  The supreme court has previously recognized that in order to “freeze” a situation, the stop of a person present at the scene of a recently committed crime may be permissible without violating the Fourth Amendment prohibition against unreasonable search and seizure.  See Appelgate v. Commissioner of Pub. Safety, 402 N.W.2d 106, 108 (Minn. 1987) (setting out six factors to be considered in analyzing whether a particular limited stop is justified under the circumstances of a recently committed crime).  Because we conclude that Meyer had reasonable, articulable suspicion sufficient to justify the investigative stop of the vehicle, we need not analyze the stop as a search for potential witnesses here. 

II.

Appellant also contends that there was insufficient evidence to convict him because the state’s case was based largely on the testimony of J.L.  Appellant argues that J.L. was an accomplice to the crimes for which appellant was found guilty.  Respondent counters that appellant did not raise the issue of J.L. being an accomplice at trial.  But a party can always raise sufficiency of the evidence on appeal because it affects a defendant’s substantial rights.  State v. Clow, 600 N.W.2d 724, 726 (Minn. App. 1999), review denied (Minn. Oct. 21, 1999). 

            Where there is a challenge to the sufficiency of the evidence, this court’s review is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in a light most favorable to the verdict, was sufficient to permit the factfinder to reach the verdict they did.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  Determinations of the credibility and weight to be given to the testimony are for the factfinder alone.  State v. Lodermeier, 539 N.W.2d 396, 397 (Minn. 1995).  The reviewing court must assume that the finder of fact “believed the state’s witnesses and disbelieved any evidence to the contrary.”  State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989). 

            Generally, a conviction can rest on the uncorroborated testimony of a single credible witness.  State v. Hill, 285 Minn. 518, 518, 172 N.W.2d 406, 407 (1969).  A conviction based on accomplice testimony, however, must be corroborated by additional evidence that tends to convict the defendant of the commission of the offense.  Minn. Stat. § 634.04 (2000). 

            Appellant maintains that J.L. was an accomplice because he “could have been” charged and convicted of the same crimes as appellant due to the fact that J.L. had the same opportunity to commit the crimes as appellant.  While acknowledging that J.L. was seen at the game just before it ended, appellant argues that the burglary could conceivably have occurred prior to the time J.L. and appellant arrived at the game, because there was no proof of exactly when it occurred after 6:00 p.m.  In addition, J.L. is also linked to the only piece of physical evidence in the case, the money jar, because it was found in his car. 

            Respondent counters that J.L. could not have participated in the burglary, emphasizing the evidence which places J.L. at the game until approximately 8:30 p.m., or later.  But the possibility remains that the burglary could have occurred sometime after 6:00 p.m., but before J.L. and appellant arrived at the basketball game. 

            In general, the test for determining whether a witness is an accomplice, for purposes of Minn. Stat. § 634.04,[1] is whether the witness could have been indicted and convicted for the same crime as the accused.  State v. Jensen, 289 Minn. 444, 446, 184 N.W.2d 813, 815 (1971).  “Presence, companionship and conduct before and after the offense are circumstances from which a person's participation may be inferred.”  In re the Welfare of D.M.K., 343 N.W.2d 863, 867 (Minn. App. 1984).  Here, appellant and J.L were seen together numerous times.  J.L.’s whereabouts between 6:00 and when the burglary was discovered, at 8:40 p.m., are not completely accounted for.  There was only J.L.’s testimony that they were at appellant’s house prior to going to the basketball game.  It is conceivable that J.L. could have participated in the burglary.  We will therefore evaluate the strength of the corroborating evidence presented in addition to the testimony of J.L. 

In reviewing the sufficiency of corroborating evidence of accomplices’ testimony, we view the evidence in the light most favorable to the state and all conflicts in the evidence are resolved in favor of the verdict. 

 

State v. Adams, 295 N.W.2d 527, 533 (Minn. 1980).  Corroborating evidence may include factors such as association with those involved in the crime, motive, opportunity to commit the crime, and proximity to the crime scene.  Id.

The quantum of corroborative evidence required in any case will depend on the circumstances involved, with consideration given to the claims of both the defendant and the state. 

 

State v. Mathiasen, 267 Minn. 393, 399, 127 N.W.2d 534, 539 (1964). 

Corroboration of accomplice testimony is sufficient if it restores confidence in the accomplice’s testimony, confirming its truth and pointing to the defendant’s guilt in some substantial degree. 

 

State v. Scruggs, 421 N.W.2d 707, 713 (Minn. 1988). 

Although corroborative evidence need not be of itself adequate to establish a prima facie case of guilt, it must affirm the truth of the accomplice’s testimony and point to the guilt of the defendant in some substantial degree. * * * [S]ources of such evidence may include, among other things, scientific analysis of physical objects connected with the alleged crime and suspicious and unexplained conduct of the accused either before or after the offense. * * * [R]elevant facts provable by evidence secured from such sources include participation in the preparation for the criminal act; opportunity and motive; proximity of the defendant to the place where the crime was committed under unusual circumstances; association with persons involved in the crime in such a way as to suggest joint participation; possession of an instrument or instruments probably used to commit the offense; and unexplained affluence or possession of the fruits of criminal conduct. 

 

State v. Sorg, 275 Minn. 1, 5, 144 N.W.2d 783, 786 (1966) (citations omitted). 

 

Here, there was adequate corroborative evidence to support the guilty verdict.  Appellant was found in physical proximity to the money jar.  Because we conclude the stop of the vehicle valid, this is physical evidence linking him directly to the burglary and theft.  In addition, Z.P., the Brinkman’s son, testified that appellant approached him at school and apologized for the burglary more than once, saying “I’m sorry, I didn’t know it was your house.”  Appellant’s demeanor towards Meyer was also incriminating. Appellant, who was extremely upset and crying, told Meyer that he wanted to talk about the burglary, but that he could not because he was worried about his EJJ status. 

            Appellant was observed at the basketball game with Darin Guetter the evening of the burglary.  Appellant was observed leaving the building with Guetter prior to the time when the burglary allegedly occurred.  Renata Guetter, a defense witness, testified that she saw appellant and Darin Guetter driving in Wabasso at approximately 7:50-7:55 p.m. on the night of the burglary.  Sandra Brinkman did not return home until approximately 8:40 p.m. to find her home had been burglarized.  These facts establish that appellant had the opportunity to commit the burglary.  The evidence establishes that appellant was closely associated with J.L.  Meyer testified he believed that two people were involved in the burglary.  Appellant’s arrest by Meyer was in very close proximity to the victims’ home, located in a remote rural area.  The arrest occurred within a short time of Meyer’s arrival on the scene of the crime.  Circumstantial evidence is given as much weight as other evidence.  State. v. Thames, 599 N.W.2d 122, 127 (Minn. 1999).  We conclude that there is sufficient corroborating evidence in addition to J.L.’s testimony to sustain appellant’s convictions. 

Affirmed.



[1]

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 (2000).