This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Dean A. Gangl,
Filed February 3, 2004
Gordon W. Shumaker, Judge
Benton County District Court
File No. K0-02-661
Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Robert Raupp, Benton County Attorney, Karl Schmidt, Assistant Benton County Attorney, Courts Facility, P.O. Box 189, Foley, MN 56329 (for respondent)
John M. Stuart, State Public Defender, Davi E. Axelson, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)
Considered and decided by Schumacher, Presiding Judge; Toussaint, Chief Judge; and Shumaker, Judge.
U N P U B L I S H D O P I N I O N
GORDON W. SHUMAKER, Judge
Appellant contends that his defense attorney’s failure to request an accomplice jury instruction in his trial for burglary and theft constituted ineffective assistance of counsel that prejudiced the outcome of his case. Because the facts show that appellant was not entitled to an accomplice instruction, we affirm.
Appellant Dean A. Gangl borrowed Mandi Hoerter’s car on the morning of April 3, 2002, telling her that he and his companion, Joseph Possone, were going to meet somebody. Gangl had borrowed Hoerter’s car on previous occasions, and she had no reason to suspect that Gangl would use the car for an unlawful purpose.
In fact, Gangl drove to the Lewis Benzkofer residence where he and Possone committed burglary and stole guns, cameras, and other items. The men returned to Hoerter’s home. They had cameras in their possession, and they acted suspiciously. They kept looking out the window and talking about someone seeing them. They also referred to a camera, a video camera, and guns. Possone left, and Gangl asked Hoerter to drive him to Shaggy’s house. Gangl offered Hoerter a camera because she had allowed him to use her car, but Hoerter declined. At Shaggy’s house, Gangl sold a camera and a video camera.
The state charged Gangl with burglary and theft of a firearm. At his jury trial, his attorney requested an accomplice instruction as to Possone but not as to Hoerter. The jury found Gangl guilty of both charges. On appeal, Gangl alleges that his defense counsel ineffectively represented him because she failed to request an accomplice instruction as to Hoerter.
Gangl alleges that his defense attorney’s failure to request an accomplice jury instruction constituted legal representation that fell below that reasonably required under the circumstances and that the error prejudiced the outcome of the case. See King v. State, 562 N.W.2d 791, 795 (Minn. 1997) (holding defense counsel’s assistance ineffective if it falls below objective standard of reasonableness and if there is a probability that, but for the deficient representation, the outcome of the case would have been different).
The threshold question is whether Gangl was entitled to an accomplice instruction. This is an issue that can be determined as a matter of law or can be a question of fact for the jury to decide. State v. Hanley, 363 N.W.2d 735, 741 (Minn. 1985). If the facts are “undisputed or compel but a single inference,” the district court may find as a matter of law that an individual is an accomplice. Id. But if “the evidence tending to connect a witness with the crime is disputed or susceptible to different interpretations, the complicity issue is one of fact for jury resolution.” Id.
An accomplice is someone who could have been charged with and convicted of the crime with which the accused is charged. State v. Swyningan, 304 Minn. 552, 555, 229 N.W.2d 29, 32 (1975). “If the state is able to prove ‘some knowing role in the commission of the crime’ by a [person] who does nothing to stop the act, then the state has proven accomplice culpability.” State v. Flournoy, 535 N.W.2d 354, 359 (Minn. 1995).
Gangl’s crimes were burglary and theft. There is no evidence whatsoever in this record to show directly or circumstantially that Hoerter played any knowing role in the commission of those offenses. At best, it is arguable that Hoerter aided Gangl after the completion of those crimes. If she did so in a manner specified by law, she could be charged as an accessory after the fact. See Minn. Stat. § 609.495, subd. 3 (Supp. 2001) (stating that accessory after the fact is one who intentionally aids another, whom he or she knows committed a crime, by destroying or concealing evidence, providing misleading information, receiving the proceeds of, or otherwise obstructing the investigation or prosecution of that crime); Matter of Welfare of A.C.N., 583 N.W.2d 303, 305 (Minn. App. 1998). An “accessory after the fact is not an accomplice of the principal.” Swyningan, 304 Minn. at 555, 229 N.W.2d at 32.
Because there is no evidence that Hoerter was an accomplice of Gangl, he was not entitled to an accomplice jury instruction as to her and his attorney’s failure to request that instruction did not constitute ineffective assistance of counsel.