This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. ß 480A.08, subd. 3 (2004).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Leonard Michael Lureen,
Filed February 8, 2005
Otter Tail County District Court
File No. K4-03-438
Mike Hatch, Attorney General, Tibor M. Gallo, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, Minnesota 55101-2134; and
David J. Hauser, Otter Tail County Attorney, Courthouse, 121 West Junius, Fergus Falls, Minnesota 56537 (for respondent)
John M. Stuart, State Public Defender, Michael F. Cromett, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, Minnesota 55414 (for appellant)
††††††††††† Considered and decided by Hudson, Presiding Judge; Peterson, Judge; and Forsberg, Judge.*
U N P U B L I S H E D†† O P I N I O N
††††††††††† A jury found appellant guilty of aiding and abetting the possession of methamphetamine following the testimony of an accomplice to the crime.† On appeal, appellant argues that the accomplice testimony was not corroborated, and, therefore, there is insufficient evidence to support his conviction.† Because appellantís conviction was based on uncorroborated accomplice testimony, we reverse.†
Appellant Leonard Michael Lureen was charged in Otter Tail County district court with aiding and abetting a controlled-substance crime in the third degree in violation of Minn. Stat. ß 152.023, subds. 2(1), 3 (2002), and Minn. Stat. ß 609.05, subd. 1 (2002).† The complaint alleged that appellant arranged the possession of methamphetamine by Rick Gillund, appellantís friend.† Appellant pleaded not guilty and was tried in front of a jury on January 8, 2004.
The state presented two witnesses at trial.† Gillund testified that he had known appellant for more than a year.† On the evening of March 11, 2003, appellant arrived at Gillundís house.† Appellant intended to visit his girlfriend, Tina Copeland, and needed a ride home.† According to Gillund, while appellant was at Gillundís home, Gillund asked appellant if he could purchase methamphetamine from Copeland.† Appellant stated that he would let Gillund know if a sale was possible.† Appellant phoned Gillund later that evening and told him that Copeland was willing to sell him methamphetamine.
Gillund testified that he drove to Copelandís trailer home and entered the back bedroom with appellant and Copeland.† Gillund purchased an ď8-ballĒ of methamphetamine from Copeland for $320.† Appellant and Gillund then returned to Gillundís vehicle where Gillund placed the methamphetamine in a crack in the front bench seat.† The two men left the trailer park in Gillundís vehicle.† Gillund testified that appellant never attempted to take possession of or exercise control over the methamphetamine.† While on the stand, Gillund acknowledged that he had not disclosed information about the conversation with appellant in his home to law enforcement prior to his testimony at trial and that he had repeatedly changed his version of the events that occurred on the night of March 11, 2003.† In addition, Gillund testified that he was charged with possession of methamphetamine and that his guilty plea contemplated his testimony against appellant.
Officer Kile Bergren also testified to the events of March 11, 2003.† According to Officer Bergren, he and his partner were on routine patrol that evening when they observed a Buick LaSabre exit the trailer park.† The officers stopped the vehicle after observing traffic violations.† Gillund was driving, and appellant was in the passenger seat.† While running Gillundís identification through dispatch, Officer Bergren spoke with appellant, who stated that the two men were previously at Tina Copelandís house.† Officer Bergren knew that Copeland resided at the trailer park.† While talking with appellant, Officer Bergren observed an open beer can between appellantís legs.† Officer Bergren asked appellant to step out of the vehicle, and appellant handed over two additional cans of beer from his jacket pockets.†
After dispatch reported that Gillund had a felony warrant, the officers searched the vehicle incident to arrest.† Officer Bergren discovered a bag containing methamphetamine in a crack in the front bench seat.† The officer noted that the methamphetamine was positioned closer to the passenger, appellant.† Both men denied knowledge of the methamphetamine.† Appellant stated that he did not use ďthat stuffĒ anymore and that anything in the vehicle belonged to Gillund.† The officers took appellant into custody, and appellant requested that the officers refrain from further questioning.†
Appellant did not testify at trial.† The jury found appellant guilty of the aiding-and-abetting charge.† The trial court sentenced appellant to 39 monthsóa dispositional departureóand 20 yearsí probation.† This appeal follows.
Appellant argues that the incriminating testimony of Mr. Gillund, appellantís accomplice, was not corroborated, and, therefore, the evidence was insufficient to support the verdict.† When reviewing a claim of insufficient evidence, this court conducts a painstaking analysis of the record to determine whether the evidence, when viewed in the light most favorable to conviction, was sufficient to allow the jury to reach its conclusion.† State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).† The verdict will not be disturbed if the jury, acting with due regard for the stateís burden of proving guilt beyond a reasonable doubt, could reasonably conclude that a defendant was proven guilty of the offense charged.† State v. McCullum, 289 N.W.2d 89, 91 (Minn. 1979) (citation omitted).† In examining the evidence supporting the verdict, this court must assume that the jury believed the stateís witnesses and disbelieved any evidence to the contrary.† State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).
If believed, the testimony of Gillund was sufficient to support the juryís verdict.† Under Minn. Stat. ß 609.05, subd. 1 (2002), a person is criminally liable for a crime committed by another ďif the person intentionally aids, advises, hires, counsels, or conspires with or otherwise procures the other to commit the crime.Ē† The state accused appellant of aiding Gillundís possession of methamphetamine.† Gillund testified that appellant arranged for Copeland to sell Gillund methamphetamine and phoned Gillund to inform him that Copeland approved the transaction.† Gillund also testified that appellant was in the back bedroom with Gillund while Gillund purchased the methamphetamine.
But 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.† Minn. Stat. ß 634.04 (2002).† Moreover, the corroboration is not sufficient ďif it merely shows the commission of the offense or the circumstances thereof.Ē† Id.† But the evidence corroborating an accompliceís testimony need not, by itself, establish a prima facie case of the defendantís guilt, and it may be circumstantial or direct.† State v. Ford, 539 N.W.2d 214, 225 (Minn. 1995) (citations omitted).†
Corroborating evidence may be secured from the defendantís association with those involved in the crime in such a way as to suggest joint participation, as well as from the defendantís opportunity and motive to commit the crime and his proximity to the place where the crime was committed.† The defendantís entire conduct may be looked to for corroborating circumstances.† If his connection to the crime may be fairly inferred from those circumstances, the corroboration is sufficient.†
State v. Scruggs, 421 N.W.2d 707, 713 (Minn. 1988) (quoting State v. Adams, 295 N.W.2d 527, 533 (Minn. 1980)).† And corroborating evidence is sufficient, ďif it restores confidence in the accompliceís testimony, confirming its truth and pointing to the defendantís guilt in some substantial degree.Ē† Id.† Here, it is undisputed that Gillund was an accomplice whose testimony necessitated corroboration.
††††††††††† An examination of the record demonstrates that Gillundís testimony was not sufficiently corroborated to restore confidence in his testimony or point to appellantís guilt in some substantial degree.† Through Officer Bergrenís testimony, the state established only that on March 11, 2003:† (1) a quantity of methamphetamine was found in Gillundís vehicle in a crack in the front bench seat in closer proximity to appellantóthe passengeróthan Gillund, the driver; (2) appellant acknowledged having just left Copelandís trailer; (3) appellant acknowledged familiarity with methamphetamine from past usage; and (4) appellant denied knowledge or ownership of the methamphetamine found in Gillundís vehicle.†
The state relied solely on Gillundís testimony to prove appellantís role in facilitating the methamphetamine transaction and Gillundís possession.† Without Gillundís testimony, there is no evidence in the record to show that appellant spoke with Gillund in his home and later phoned Gillund to indicate Copelandís willingness to sell Gillund methamphetamine.† Moreover, without Gillundís testimony, there is no evidence in the record suggesting that the methamphetamine in Gillundís possession was purchased that evening in Copelandís trailer, that appellant was present when Gillund acquired the methamphetamine found in Gillundís vehicle, or that appellant was even aware that Gillund possessed methamphetamine that evening.
††††††††††† The state suggests that an analysis of the factors supporting corroboration in Ford demonstrates that the observations of law-enforcement officers and the physical evidence obtained in the search of Gillundís vehicle corroborated Gillundís testimony.† The state contends that appellantís association with Gillund and Copeland suggests joint participation, opportunity, and motive because appellant knew both parties well enough to arrange a meeting and would benefit from his girlfriendís profit from the sale.† Additionally, the state argues that appellantís conduct is corroborative because appellant was seated next to the methamphetamine in the vehicle and acknowledged using methamphetamine in the past.† We disagree.†
The majority of the stateís corroborative evidence either consists of speculation or necessarily relies on the assumption that the methamphetamine found in Gillundís vehicle was purchased that evening at Copelandísóa fact that cannot be proven without Gillundís testimony.† Officer Bergrenís testimony demonstrates only that someone in that vehicle was in possession of methamphetamine, i.e., that the crime had been committed, and does not implicate appellant in the commission.† Moreover, appellantís proximity to the methamphetamine is not corroborative, given Gillundís testimony that he placed the drug in the seat crack.† And appellantís admission of past methamphetamine usage, while suggestive that appellant would recognize the drug, does not suggest a willingness to aid another in the possession of methamphetamine.†
Because Officer Bergren could testify only to the existence of the crime and to what occurred following the alleged sale in Copelandís bedroom, there is no evidence corroborating appellantís assistance in Gillundís possession.† Without Gillundís testimony, a jury could not reasonably conclude that appellant aided Gillund in his possession of methamphetamine.† As such, the evidence is insufficient to support the juryís verdict.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, ß 10.