This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. §480A.08, subd. 3 (2000).







State of Minnesota,





Jacob Hernandez, Sr.,



Filed September 25, 2001


Lansing, J.


Polk County District Court

File No. K700642



Mike Hatch, Attorney General, John B. Galus, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN  55103 (for respondent State)


Wayne H. Swanson, Polk County Attorney, Crookston Professional Center, 223 East Seventh Street, Crookston, MN  56176 (for respondent Polk County)


John M. Stuart, State Public Defender, Susan J. Andrews, Assistant Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN  55414 (for appellant)



            Considered and decided by Lansing, Presiding Judge, Harten, Judge, and Willis, Judge.

U N P U B L I S H E D   O P I N I O N


            Jacob Hernandez appeals his conviction of third-degree controlled-substance crimes arguing the district court erred in failing to instruct the jury that a conviction may not rest on an accomplice’s uncorroborated testimony.  Because we conclude that the record does not reasonably support Hernandez’s claim that the alleged middleman was an accomplice, the district court did not err in declining to instruct the jury on accomplice testimony, and we affirm.



A jury convicted Jacob Hernandez of two counts of third-degree controlled-substance crime in violation of Minn. Stat. § 152.023, subds. 1(1), 3(a) (2000).  The controlled buys for which Hernandez was convicted were initiated by a confidential informant. 

The first controlled buy took place on January 5, 2000, after the informant contacted Enrique Briviesca, a known drug dealer, to purchase an eighth-ounce of cocaine.  While being monitored by police, Briviesca drove to Hernandez’s apartment to obtain the drugs.  Once in the apartment, Briviesca purchased heroin, used some of it, placed the remaining heroin in his pocket, and left.  Briviesca then sold the heroin to the informant.  The informant, in turn, delivered the heroin to Drug Enforcement Agency agent Bruce Fleury.

The second controlled buy took place on January 14.  Once again, Briviesca received marked money from the informant and, while under police surveillance, drove to Hernandez’s apartment to obtain the drugs.  Briviesca bought a substantial amount of heroin from Hernandez and left after injecting some of it.  He was arrested shortly after he left the apartment.  Hernandez was also arrested, after a search of his apartment disclosed $260 of the marked money along with several items typically associated with the sale of illicit drugs—pop cans with the bottoms removed, small pieces of tin foil, a shortened straw, a balloon, and a pocket scale.

Briviesca was charged with two counts of controlled-substance crime.  He later entered into a plea agreement under which he agreed to testify against Hernandez.  Hernandez was charged with two counts of third-degree controlled-substance crime and two counts of conspiracy to commit third-degree controlled-substance crime.  At the end of trial, the state dismissed the conspiracy charges.  The jury convicted Hernandez of the remaining charges.  Hernandez was sentenced to a 33-month prison term for the first offense and to a concurrent 45-month prison term for the second offense.  This appeal followed.


A defendant may not be convicted based solely on the testimony of an accomplice unless the testimony is corroborated by other evidence.  See Minn. Stat. § 634.04 (2000); State v. Henderson, 620 N.W.2d 688, 700 (Minn. 2001).  Courts must instruct juries on the limitations of accomplice testimony in every criminal case in which a witness against the defendant might reasonably be considered an accomplice to the crime.  Henderson, 620 N.W.2d at 700.

An accomplice is a “person who knowingly, voluntarily, and intentionally unites with the principal offender in committing a crime and thereby becomes punishable for it.” Black’s Law Dictionary 16 (7th ed. 1999).  The test for determining if a witness is an accomplice for purposes of Minn. Stat. § 634.04 is whether the witness could have been indicted for and convicted of the charged offense either as a principal or as an accessory before the fact.  Henderson, 620 N.W.2d at 701;  State v. Swyningan, 304 Minn. 552, 555, 229 N.W.2d 29, 32 (1975).  Thus, if a witness actively participates in the crime with which the defendant is charged, the witness is an accomplice.  State v. Hayes, 351 N.W.2d 654, 656 (Minn. App. 1984) (holding that women who were present during burglary and actively assisted defendant in transferring stolen property were accomplices because their conduct showed “a high level of activity * * * in the form of conduct that encourages another to act”) (quotation omitted), review denied (Minn. Sep. 12, 1984). 

But if a witness participates in a crime that is separate and distinct from the crime with which the defendant is charged, the witness is not an accomplice.  Swyningan, 304 Minn. at 555-56, 229 N.W.2d at 32-33 (holding that a person who received heroin could not be an accomplice of the person who distributed the heroin).  A witness does not acquire accomplice status absent “some knowing role in the commission of the crime [charged].” State v. Flournoy, 535 N.W.2d 354, 359 (Minn. 1995) (citation omitted). 

When the facts are disputed or susceptible to different interpretations, whether a witness is an accomplice is a factual question for the jury.  Id.  But when the facts are undisputed and there is only one inference to be drawn, whether a witness is an accomplice is a question of law for the court to decide.  Id.

The record establishes that Briviesca’s and Hernandez’s crimes were separate and distinct.  Hernandez was charged with two counts of third-degree controlled-substance crime—the sale of heroin to Briviesca on January 5 and January 14.  Briviesca, on the other hand, was convicted of a separate controlled-substance crime—the sale of heroin to the confidential informant.  Briviesca could not have been charged as a principal in the commission of the crime with which Hernandez was charged because no evidence suggests that Briviesca knowingly, voluntarily, and intentionally united with Hernandez in committing that crime.  Instead the evidence is undisputed that Briviesca played no role in the commission of the crime.  He neither induced nor counseled nor encouraged the commission of the crime.  See In re Welfare of D.M.K., 343 N.W.2d 863, 866 (Minn. App. 1984) (stating that participation in an offense may be inferred from the alleged participant’s “[p]resence, companionship and conduct before * * * the offense”).  The facts provide no basis for an inference that Briviesca was an accomplice.  See State v. Jensen, 289 Minn. 444, 447, 184 N.W.2d 813, 815 (1971) (witnesses who were at the scene of the crime but did not intentionally advise, aid, or conspire with the defendant in the commission of the crime were not accomplices). 

Hernandez argues that because Briviesca delivered the drugs to the confidential informant, the delivery is a "sale" within the meaning of Minn. Stat. § 152.01, subd. 15(a) (2000), and thus Briviesca could have been charged with the same crime as Hernandez.  But Hernandez's characterization of Briviesca as a middleman or delivery person is unsupported by the record.  In fact, the delivery of the drugs to the confidential informant was a crime totally unrelated to the crime with which Hernandez was charged—selling drugs to Briviesca.  The record contains no suggestion that Hernandez knew that Briviesca was buying the heroin for the confidential informant or that he intended to have the drugs delivered to her.  The informant was Briviesca's client, not Hernandez's.  On this record, therefore, Briviesca could not have been charged for the crime with which Hernandez was charged.  That the informant's marked money was used to pay for the heroin does not transform Briviesca into an accomplice.

We conclude that the district court properly declined to give an accomplice instruction because only one inference may reasonably be drawn from the undisputed facts—that Hernandez and Briviesca were not accomplices in the crime charged.  Hernandez’s argument to the contrary is refuted by well established Minnesota law providing that participants who are guilty of one crime are not accomplices of participants who are guilty of another, separate and distinct crime.  See State v. Jones, 311 Minn. 472, 473-74, 249 N.W.2d 893, 893-94 (1977) (prostitutes are not accomplices of their employer because their conduct constitutes a separate and distinct offense from the offense of managing a place of prostitution); Swyningan, 304 Minn. at 555, 229 N.W.2d at 32 (a person who receives drugs cannot be an accomplice of a person charged with distributing the drugs); Jensen, 289 Minn. at 446-47, 184 N.W.2d at 815 (a person who feloniously receives stolen goods is not an accomplice of the person who steals the goods); State v. Sweeney, 180 Minn. 450, 454, 231 N.W. 225, 227 (1930) (a person who receives a bribe is not an accomplice of the person who offers the bribe); State v. Tremont, 160 Minn. 314, 316, 200 N.W. 93, 94 (Minn. 1924) (the purchaser of intoxicating liquor is not an accomplice of the seller).

Furthermore, even if the facts could support an accomplice claim, the failure to give an accomplice instruction would have been harmless because Briviesca’s testimony was corroborated by the testimony of agent Fleury and the police officers who monitored Briviesca during the controlled buys.