This opinion will be unpublished and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,
Adrian Anthony Ramirez,
Filed August 3, 2004
Meeker County District Court
File No. K9-01-3449
Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Michael J. Thompson, Meeker County Attorney, Rick F. Lanners, Assistant County Attorney, Meeker County Courthouse, 325 North Sibley Avenue, Litchfield, MN 55355 (for respondent)
Melissa Sheridan, Assistant State Public Defender, 1380 Corporate Center Curve, Suite 320, Eagan, MN 55121 (for appellant)
Considered and decided by Schumacher, Presiding Judge, Shumaker, Judge, and Parker Judge.
Seth Beckstrand, who was arrested by the Willmar police for a drug-related offense on September 25, 2002, agreed to work with Meeker County Sheriff’s Deputy Brian Cruze and Kandiyohi County Sheriff’s Deputy Todd Neumann to set up a controlled drug buy, in exchange for a reduction of his own criminal charges.
On September 26, 2002, at about 1:30 a.m., Neumann drove Beckstrand to a trailer home in Litchfield to buy drugs from appellant Adrian Anthony Ramirez. Before Beckstrand went to the trailer, he was searched for contraband, fitted with a hidden wire that transmitted his conversations to the two deputies, and given $1,000 in marked bills. Neumann and Cruze parked near the trailer about one block away; both deputies monitored the conversation from Beckstrand’s body wire.
When Beckstrand entered the trailer, both deputies heard two male voices: Beckstrand’s and appellant’s. Cruze testified at trial that he recognized appellant’s voice from previous contact. Beckstrand and appellant negotiated a price of $800 for one ounce of methamphetamine.
Following the price negotiation, a woman emerged from the trailer, walked to a white Dodge Daytona parked behind Neumann’s car, “dug around,” and returned to the trailer with something hidden under her shirt. Neither deputy heard a female voice on the wire transmission. After approximately five minutes, Beckstrand left the trailer, entered Neumann’s car, and gave Neumann a plastic bag containing a substance and the remaining $200 from the transaction. Neither Neumann nor Cruze saw appellant that night. After leaving the scene, Beckstrand was debriefed and searched again for contraband; nothing was found. A field test indicated that the plastic bag contained methamphetamine, which was confirmed by the Bureau of Criminal Apprehension to be 27.7 grams of a rock-form substance containing methamphetamine.
Appellant was charged on January 3, 2003, with one count of first-degree controlled-substance crime for sale of ten or more grams of methamphetamine in Meeker County, under Minn. Stat. § 152.021, subd. 1(1) (2002). Appellant’s first jury trial ended in a mistrial because the jury was deadlocked.
At the second trial, Beckstrand testified that he understood he would receive favorable treatment on his pending charge by cooperating with Cruze and Neumann. Beckstrand also testified that Neumann drove him to appellant’s trailer with a wire and money to purchase drugs from appellant on September 26, 2002. He entered the trailer, and appellant and a woman were present; he knew appellant but not the woman. He also testified that he negotiated only with appellant for the purchase of one ounce of methamphetamine for $800 and that the woman was not part of the conversation. He stated that the woman went out to the car and got the drugs but that appellant handed him the methamphetamine packed in a plastic bag after he gave appellant the money.
Stephanie Olson, the woman in the trailer with appellant, testified only at the second trial. She testified that she was at appellant’s trailer on September 26, 2002, and that appellant placed something in her car under the driver’s seat earlier, but that she did not know at that time what it was that appellant put in the car. She further testified that two people, Beckstrand and someone else, came to the trailer. She could not hear the conversation between appellant and Beckstrand, but was asked by appellant to retrieve the package that appellant placed in her car. Olson testified that after retrieving the package from her car, she handed the package to Beckstrand. She testified that she did not know at the time that the package contained drugs, but “should have realized it right then.” She stated that Beckstrand handed appellant $800, which he took. She did not receive any of the $800 for the drugs from appellant or Beckstrand. Olson was charged with and pled guilty to possession of controlled substance, presumably under Minn. Stat. § 152.021, subd 2(1) (2002), arising out of this incident and was not told at that time that she would have to testify against appellant. She did not receive any plea bargain from the state for testifying.
After the second jury trial, appellant was convicted of the charged offense. Appellant was later sentenced to an 81-month prison term and ordered to pay a $1,000 fine. This appeal followed.
Refusal to give a jury instruction lies in the discretion of the district court and will not be reversed absent an abuse of discretion. State v. Cole, 542 N.W.2d 43, 50 (Minn. 1996). The focus of the analysis on review is on whether the refusal resulted in error. State v. Kuhnau, 622 N.W.2d 552, 555 (Minn. 2001). The question of whether a defendant was entitled to an accomplice instruction 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.
Failure to request specific jury instructions or to object to the instructions before they are given generally waives the right to appeal on that issue. State v. Cross, 577 N.W.2d 721, 726 (Minn. 1998). But if the instructions contain plain error affecting substantial rights or an error of fundamental law, we have discretion to review despite the failure to object at trial. Id. We employ a three-prong test to determine the existence of plain error: (1) was there error, (2) that was plain, and (3) that affected substantial rights. State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998).
Appellant argues that he is entitled to a new trial because the district court committed plain error by not instructing the jury that accomplice testimony must be corroborated. He asserts that the verdict likely would have been different if the jury had received the instruction. Appellant also contends that Olson’s testimony was inherently unreliable because she was an accomplice to the crime and that Beckstrand was not a credible witness because of his prior felony convictions.
A conviction cannot rest on the uncorroborated testimony of an accomplice. See Minn. Stat. § 634.04 (2002); State v. Clements, 82 Minn. 434, 443, 85 N.W. 229, 232 (1901). As a rule, district courts have a duty to instruct juries on accomplice testimony in any criminal case in which it is reasonable to consider any witness against the defendant to be an accomplice. State v. Shoop, 441 N.W.2d 475, 479 (Minn. 1989). “The rationale for this rule is that the credibility of an accomplice is inherently untrustworthy.” State v. Strommen, 648 N.W.2d 681, 689 (Minn. 2002). The purpose of Minn. Stat. § 634.04 is “to provide a check upon the credibility of testimony of a person who, having been admittedly involved in criminal conduct, might be disposed to shift or diffuse responsibility in order to curry the favor of law enforcement officials.” State v. Azzone, 271 Minn. 166, 170, 135 N.W.2d 488, 493 (1965). In Strommen, the supreme court noted that,
[t]he accomplice may testify against another in the hope of [or] upon a promise of immunity or clemency or to satisfy other self-serving or malicious motives. Absent an instruction on accomplice testimony, there is the very real possibility that the jury could reject corroborating evidence and convict on the testimony of the accomplice standing alone. Thus, the duty to instruct on accomplice testimony remains regardless of whether counsel for the defendant requests the instruction.
Strommen, 648 N.W.2d at 689 (quotation, citation, & footnote omitted).
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). Here, it appears reasonable to consider Olson an accomplice to the crime. While she did not receive any of the money from the sale and was not part of the negotiation of the price, she did participate in retrieving the drugs from the car and possibly handed the drugs to Beckstrand according to her testimony. Her testimony does indicate that she had some level of understanding that she was participating in an illegal activity because she hid the package under her shirt when returning to the trailer and she testified that she assumed the package contained something illegal. She did plead guilty to possession of a controlled substance in connection with the sale of the drugs with which appellant is charged, although appellant was charged with sale of the controlled substance. It is possible that she could have been charged with and convicted of the same crime (sale of controlled substance) as appellant, although that is speculative.
However, this is not a case where Olson was attempting to “curry the favor of law enforcement officials,” thereby shifting or diffusing her responsibility in the crime because she pled guilty and was sentenced before she was told she had to testify against appellant. See Azzone, 271 Minn. at 170, 135 N.W.2d at 493. This fact diminishes the concerns stated in Azzone and Strommen regarding Olson benefiting from testifying against appellant. But because the jury was not provided with the instruction to make that determination based on the evidence before it, we conclude that the district court erred in not giving the instruction.
Failure to give such an instruction, however, does not automatically mandate a reversal. Shoop, 441 N.W.2d at 480. “Under the plain error doctrine a defendant may obtain relief from a trial error to which he did not object only if the error seriously affected a substantial right and was prejudicial.” Id. Therefore, the next level of inquiry is whether the erroneous refusal to instruct is harmless.
The accomplice-corroboration rule does not require independent proof of each element of the crime. State v. Lemire, 315 N.W.2d 606, 610 (Minn. 1982). Rather, corroborative evidence must instill confidence in an accomplice’s testimony, confirming its veracity and indicating the defendant’s guilt in a substantial way. State v. Hooper, 620 N.W.2d 31, 39 (Minn. 2000). Accordingly, “corroborative evidence is sufficient when it is weighty enough to restore confidence in the truth of the accomplice’s testimony.” State v. Guy, 259 Minn. 67, 72, 105 N.W.2d 892, 896 (1960) (footnote omitted).
Beckstrand, Neumann, and Cruze corroborated Olson’s testimony on all but two points. The two points are (1) that Beckstrand testified that appellant handed him the package of drugs whereas Olson testified that she handed Beckstrand the drugs, and (2) that Beckstrand said only he, appellant, and Olson were in the trailer, whereas Olson testified that another person entered the trailer with Beckstrand. Olson did not indicate the other person had any part of the transaction and gave no descriptive testimony about that person other than that he was there. Beckstrand and Neumann testified that Olson left the trailer to retrieve the drugs. Neumann testified that he noticed Olson leave the trailer, dig in her car, place something under her clothing, and return to the trailer, which Olson testified to as well. Further, Neumann and Cruze testified that there were only two voices transmitted from the wire and there was no indication that Olson was part of the negotiation. Olson testified that she could not hear what Beckstrand and appellant were talking about, but she did see Beckstrand give appellant $800 for the package.
While it is true that Beckstrand was impeached on cross-examination through testimony regarding reduction of his pending charges for cooperating with police and for having prior convictions, the jury was in the best position to determine Beckstrand’s credibility. Weighing the credibility of witnesses is exclusively the function of the jury. State v. Pieschke, 295 N.W.2d 580, 584 (Minn. 1980). The jury may believe the testimony of a witness even though his testimony has been severely impeached. State v. Dillard, 355 N.W.2d 167, 172 (Minn. App. 1984), review denied (Minn. Oct. 30, 1984).
We conclude that the record contains sufficient testimony from both deputies and Beckstrand to corroborate Olson’s testimony. Further, as noted above, because Olson pled guilty to and was sentenced for possession of a controlled substance before she was told she had to testify against appellant, the concern that she was less credible as an accomplice because she could curry favor with the police is diminished. There is no indication that she falsified her testimony for that purpose, particularly in light of the corroborating evidence from Beckstrand and the two officers. The corroborating testimony had the weight “to restore confidence in the truth of the accomplice’s testimony.” See Guy, 259 Minn. at 72, 105 N.W.2d at 896. Therefore, we conclude that failure to give an accomplice instruction was harmless error and did not affect appellant’s substantial right to a fair trial.
Finally, we have considered all issues raised by appellant in his pro se supplemental brief and find them to be without merit. We note that many of the assertions in appellant’s pro se brief rely on extra-record material and are thus not properly before us for review. This court “may not base its decision on matters outside the record on appeal.” Thiele v. Stich, 425 N.W.2d 580, 582-83 (Minn. 1988); see also Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996) (reviewing courts will not decide issues not raised before district court);Minn. R. Crim. P. 28.02, subd. 8 (providing that record on appeal consists of papers filed in district court, exhibits, and transcript of proceedings).
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
 Minn. Stat. § 634.04 (2002) states:
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.
 In State v. Poganski, 257 N.W.2d 578, 581 (Minn. 1977), the supreme court held the jury could choose to believe the testimony of two witnesses even though the testimony was inconsistent and contradictory and even though the witnesses had been involved in numerous fraudulent schemes.