This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).







Christopher Anthony Hernandez, petitioner





State of Minnesota,



Filed November 26, 2002


Lansing, Judge


Scott County District Court

File No. 9700158



John M. Stuart, State Public Defender, Jodie L. Carlson, Assistant Public Defender, Suite 600, 2829 University Avenue Southeast, Minneapolis, MN  55414 (for appellant)


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


Thomas Harbinson, Scott County Attorney, Susan K. McNellis, Assistant County Attorney, 200 West Fourth Avenue, Shakopee, MN  55379 (for respondent)


            Considered and decided by Lansing, Presiding Judge, Shumaker, Judge, and Minge, Judge.


U N P U B L I S H E D   O P I N I O N




On appeal from an order denying his petition for postconviction relief, Christopher Hernandez argues that the record contains insufficient evidence to corroborate accomplice testimony, that he did not waive his right to testify, and that the postconviction court erred in ruling that his four-and-a-half-year delay in filing the petition was grounds for denying relief.  The record provides strong non-accomplice corroboration and minimal evidence that would weigh against the presumption of a valid waiver of a testimonial right.  Because the resolution of these issues independently results in affirmance, we do not decide whether Hernandez’s delay in filing precludes relief.



            In an extended-jurisdiction juvenile prosecution, a jury found Christopher Hernandez guilty of first-degree burglary involving a weapon.  The facts supporting the verdict establish that Hernandez and two other juveniles left a foster home in Scott County around midnight and returned to the home a few hours later with a number of items, including a handgun, that had been taken from two neighboring houses.

            The four juvenile males who lived at the foster home had been left in the care of the adult daughter of the provider.  When the provider’s daughter left the downstairs area, Hernandez and two of the other boys, M. and J., began drinking, using marijuana, and sniffing gasoline.  At that time, the fourth boy, F., was in the living room watching TV.

            While J., M., and Hernandez were smoking and drinking, they discussed “going out” to rob houses.  F. testified that the other boys asked him to “try to make something up” in case the provider’s daughter came down to check on them while they were gone.  F. agreed to do this but testified that the others made no promises in exchange for his agreement. 

            J., M., and Hernandez then left the house, going first to a neighbor’s house, where M. found a loaded handgun in the glove compartment of a car parked in the garage.  The boys stood outside and looked at the gun and passed it around.  They then went to another neighbor’s house, where they took some Nintendo games and other items and put them in a duffel bag.

When the three boys returned to the provider’s home, F. was still watching TV. The provider’s daughter had not come down to check on the boys while the three were away.  The three boys showed F. the gun and the contents of the bag, telling F. that he could have the video games.  He played one of them but then said he did not want them.  M. later took the bag and hid it above the ceiling tiles.

After F. left the downstairs area, the other boys talked about selling the gun and splitting the money.  M. and Hernandez later sold the gun for $100 and marijuana; they each received $50 and smoked the marijuana together. A few days later, when the provider confronted F. about the video games, he told her, “All I know is they had went out and robbed houses.”

At Hernandez’s jury trial on burglary charges, F. was given immunity two days prior to testifying.  At the close of trial, defense counsel argued that F. was an accomplice and that no evidence corroborated F.’s testimony.

More than four years after his conviction, Hernandez filed a petition for postconviction relief, claiming that the conviction could not be sustained because the accomplice testimony was insufficiently corroborated.  He further argued that he had been denied the constitutional right to testify on his own behalf because his counsel had told him not to testify and had never advised him that it was his own decision.  In an affidavit, he stated that at no time did his counsel tell him that he could request that the jury be instructed not to draw any adverse inference from his failure to testify.  The court denied the petition for postconviction relief, and this appeal followed.




We review a postconviction court’s findings to determine whether there is sufficient evidentiary support in the record.  Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001).  In so doing, we defer to the postconviction court’s findings of fact and will only reverse them if they are clearly erroneous.  Id.  A postconviction court’s decision will be upheld unless the court abused its discretion.  Townsend v. State, 582 N.W.2d 225, 227 (Minn. 1998).

Hernandez argues first that the postconviction court erred in concluding that F. was not an accomplice.  A defendant may not be convicted solely on the testimony of an accomplice unless that testimony is corroborated by other evidence.  Minn. Stat. § 634.04 (1996); State v. Pederson, 614 N.W. 2d 724, 732 (Minn. 2000).  For purposes of the corroboration requirement, a witness is an accomplice if the witness could have been indicted and convicted for the charged offense.  State v. Henderson, 620 N.W.2d 688, 701 (Minn. 2001).  A person is criminally liable for a crime committed by another if the person “intentionally aids, advises, hires, counsels, or conspires with or otherwise procures the other to commit the crime.”  Minn. Stat. § 609.05, subd. 1 (1996).

Hernandez contends that F. was an accomplice and that F.’s testimony was inherently untrustworthy.  But the record contains no evidence that F. undertook any action which would make him directly liable for the burglary, see Minn. Stat. § 609.582, subd. 1 (1996) (setting forth elements of burglary in the first degree), or that he intentionally aided, advised, hired, counseled, or conspired with or otherwise procured Hernandez to commit the burglary.  Although F. knew that the other boys were leaving “to rob houses,” he did not go with them or know where they were going.  Instead, he stayed in the provider’s house watching TV and agreed only to “make something up” if the provider’s daughter came down to check on the boys.  “[I]naction, mere knowledge, or passive acquiescence do not satisfy the requirements for accomplice liability.”  State v. Arrendondo, 531 N.W.2d 841, 845 (Minn. 1995).  Although he later played one of the stolen video games, this is insufficient to make him an accomplice; when offered ownership of the games, he refused to take them.  The district court did not err in finding that F. was not an accomplice.

Nor did the district court err in determining that F.’s testimony, together with other non-accomplice evidence, was sufficient to corroborate the accomplice testimony of J. and M.  Although corroborating evidence must connect the defendant to the crime, it need not establish a prima facie case of the defendant’s guilt.  State v. Scruggs, 421 N.W.2d 707, 713 (Minn. 1988).  Evidence is sufficient to corroborate if it confirms the truth of the accomplice’s testimony and points, in some substantial degree, to the defendant’s guilt.  State v. Ford, 539 N.W.2d 214, 225 (Minn. 1995).  “Corroborating evidence includes evidence of a ‘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.’”  Burns v. State, 621 N.W.2d 55, 60 (Minn. App. 2001) (quoting State v. Adams, 295 N.W.2d 527, 533 (Minn. 1980)), review denied (Minn. Feb. 21, 2001).

F. testified that Hernandez left the provider’s house with the other boys immediately before the burglaries were committed.  Hernandez returned with the two boys, one carrying a bag containing stolen items.  Hernandez’s opportunity to commit the crime, together with his reappearance in the company of J. and M., strongly suggests joint participation in the burglaries and points in a substantial degree to his guilt.  Further, F.’s testimony corroborated M.’s testimony that M. and Hernandez had sold the gun and split the proceeds evenly.  Hernandez’s actions in selling the gun and sharing in the burglary proceeds demonstrate culpable participation.



            Hernandez next argues that he did not knowingly and voluntarily waive his right to testify.  A criminal defendant has a constitutional right to testify on his or her own behalf.  State v. Walen, 563 N.W.2d 742, 751 (Minn. 1997).  This right is personal and may be waived only by the defendant.  State v. Rosillo, 281 N.W.2d 877, 878 (Minn. 1979).  As with other constitutional rights, the waiver of the right to testify must be knowing and voluntary.  Walen, 563 N.W.2d at 751.  See In re Welfare of M.P.Y., 630 N.W.2d 411, 416 (Minn. 2001) (discussing waiver of constitutional right to testify in EJJ proceeding).  When the district court record is silent as to waiver, the reviewing court  “must presume that the decision not to testify was made * * * voluntarily and intelligently.”  State v. Smith, 299 N.W.2d 504, 506 (Minn. 1980). 

            The petitioner at a postconviction hearing bears the burden of proving that the waiver of his right to testify was not voluntary and knowing.  Walen, 563 N.W.2d at 751.  On review, this court is limited to determining whether the record contains sufficient evidence to sustain the findings of the postconviction court.  See Minn. Stat. § 509.04, subd. 3 (2000).

            Because the district court record is silent as to waiver, we presume that Hernandez’s waiver was knowing and voluntary.  Hernandez has provided insufficient evidence to rebut that presumption.  He told the postconviction court that his counsel had told him not to testify and had never advised him that it was his own decision.  But he admitted that he had consulted with his attorney, an experienced criminal-defense attorney, about whether or not to testify.  The credibility of his lack-of-knowledge claim is diminished by his affidavit statement that his counsel failed to inform him that he could request that the jury be instructed to draw no adverse inferences from his failure to testify.  The record confirms that the trial judge, who was also the postconviction judge, did give the jury a no-adverse-inference instruction.  The postconviction court did not err in determining that Hernandez validly waived his right to testify at trial.

            Finally, the district court considered Hernandez’s four-year delay in requesting postconviction relief, noting the prejudice to the state in belated postconviction appeals.  Although a timely request is not required by the postconviction statute, timeliness is a factor in determining whether relief should be granted.  Sykes v. State, 578 N.W.2d 807, 814 (Minn. App. 1998), review denied (Minn. July 16, 1998).  But our decision to affirm the postconviction court’s decision on other grounds makes consideration of this issue unnecessary.