This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
STATE OF MINNESOTA
IN COURT OF APPEALS
Filed August 16, 2005
Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
County Attorney, Mark A.
Metz, Assistant County Attorney, 830 East 11th Street, Suite 112, Glencoe,
MN 55336 (for respondent)
John M. Stuart, State Public Defender, Sara L. Martin, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425,
Minneapolis, MN 55414
Considered and decided by Klaphake, Presiding
Chief Judge, and Willis,
P U B L I S H E D O P I N I O N
Kyle Gabriel Posusta
was with charged and convicted of second-degree controlled substance crime in
violation of Minn. Stat. § 152.022, subd. 2(1) (2000). Appellant argues that the district court
erred in determining that the stop of his vehicle and the scope of that stop
were lawful. Because the officer had a
particularized, objective basis for suspecting appellant of criminal activity,
we agree with the district court that the officer’s investigative stop and
seizure were valid. Appellant also
contends that by failing to argue that the stop and the scope of the stop were
invalid, defense counsel’s representation was ineffective. Because we conclude that the stop and the
scope were valid, the district court did not err in determining that appellant
received effective assistance of counsel.
Appellant also argues that the district court erred in determining that there
was sufficient evidence to corroborate the accomplice testimony and by refusing
to modify appellant’s sentence. Because
the district court did not err in its decisions, we affirm.
D E C I S I O N
A stop is lawful
under the Fourth Amendment if an officer can articulate a “particularized and
objective basis for suspecting the particular person[ ] stopped of criminal
activity.” Berge v. Comm’r of Pub. Safety, 374
N.W.2d 730, 732 (Minn.
1985) (quotation omitted). “Ordinarily,
if an officer observes a violation of a traffic law, however insignificant, the
officer has an objective basis for stopping the vehicle.” State v.
George, 557 N.W.2d 575, 578 (Minn. 1997).
Here, Officer Johnson
testified that he followed appellant for more than a mile and observed
appellant’s van repeatedly cross the centerline dividing appellant’s lane of
traffic from oncoming traffic. The
officer also noted that appellant was moving around in the driver’s seat in an
unsafe and suspicious manner and that the rear seat passenger, M.G., was moving around, arching her back, and
appearing to hide something. The officer
testified that in his experience, the driver’s movements, coupled with M.G.’s
movements, signified either the hiding of an illegal substance or putting on a
In order to
determine whether a stop is justified, we consider the totality of the
circumstances and any inferences or deductions that a trained law enforcement
officer might be permitted to make under those circumstances. State
622 N.W.2d 823, 825 (Minn.
2001). The fact that a different
inference could be drawn from the same circumstances does not negate the
officer’s conclusions. Shull v. Comm’r
of Pub. Safety, 398 N.W.2d 11, 14 (Minn.
observations of the vehicle weaving over the centerline and the suspicious
movements in the vehicle provide a reasonable and objective basis for an
investigatory stop. State v. Wagner, 637 N.W.2d 330, 335 (Minn. App. 2001); see State
v. Kvam, 336 N.W.2d 525, 528 (Minn.
1983) (finding that observing a motor vehicle weaving within its own lane in an
erratic manner can justify an officer stopping a driver). The district court did not err in concluding
that appellant’s driving and the suspicious movements of the occupants of the
vehicle gave the officer a basis to stop the vehicle.
are allowed to stop and temporarily detain or seize an individual to
investigate if they have a reasonable, articulable suspicion of criminal
activity. Terry v. Ohio,
392 U.S. 1, 88 S. Ct. 1868 (1968).
For all Terry
stops, the court must determine the reasonableness of police action by
balancing the individual’s Fourth Amendment interests against the importance of
the governmental interests at stake. Id. at 20-21,
88 S. Ct. at 1879-80. The governmental interests include not only
the interest in investigating possible criminal activity, but also the need for
law enforcement officers to protect themselves.
at 22-24, 88 S. Ct. at 1880-81.
Both the United States and the Minnesota
Constitutions require that the scope and duration of a stop be limited to its
original purpose. Florida
v. Royer, 460 U.S. 491,
500, 103 S. Ct. 1319, 1325 (1983); State v. Wiegand, 645 N.W.2d 125, 136
2002). Law enforcement officers
may only expand a stop beyond its initial scope if they possess, or legally
obtain during the initial stop, reasonable, articulable suspicion of additional
criminal activity. Wiegand, 645 N.W.2d at 135. Any intrusion “not closely related to the initial
justification for the search or seizure is invalid . . . unless there is
independent probable cause or reasonableness to justify that particular
intrusion.” State v. Askerooth, 681 N.W.2d 353, 364 (Minn. 2004)..
Officer Johnson explained the movements that he
saw the passenger make and asked M.G.
what she was doing. After she replied
nothing, he asked her again, and she repeated that she was not doing
Johnson then walked away from M.G.
and spoke to appellant and the front seat passenger. When Officer Johnson returned to M.G., he asked her
which one of the two men handed her something to hide. She responded that appellant gave her
something and asked her to “crotch it.”
The district court held that under
the totality of the circumstances, appellant’s and M.G.’s movements prior to
and during the stop, “together with [appellant’s] extreme nervousness, provided
with a reasonable articulable suspicion and allowed further inquiry.” The officer witnessed the suspicious movement
consistent with someone trying to hide something. His questions to M.G. were related to his own
observations. The district court did not
err in finding Officer Johnson
permissibly expanded the scope of the stop.
3. Ineffective Assistance of Counsel
question of whether a defendant received ineffective assistance of counsel is
one of constitutional law, which is reviewed de novo. State
v. Blom, 682 N.W.2d 578, 623-24 (Minn.
2004). To obtain relief on the grounds
of ineffective assistance of counsel,
[t]he defendant must affirmatively
prove that his counsel’s representation “fell below an objective standard of
reasonableness” and “that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.”
v. State, 398 N.W.2d 558, 561 (Minn. 1987)
(quoting Strickland v. Washington,
466 U.S. 668, 688, 694, 104 S. Ct. 2052, 2064, 2068 (1984)). The reviewing court assesses counsel’s competence
using an objective standard of reasonableness.
State v. Voorhees, 596 N.W.2d
241, 255 (Minn.
1999). There is a strong presumption
that counsel’s performance was reasonable.
State v. Jones, 392 N.W.2d
224, 236 (Minn.
that his trial counsel was ineffective because she did not challenge the stop
and scope of the subsequent detention.
Because the officer had a reasonable, articulable reason for the stop
and the scope of the detention, counsel’s failure to argue that the stop and
scope were not lawful did not fall below an objective standard of reasonable
representation, and there is not a reasonable probability that but for the
failure to make this argument, the result of the prosecution would have been
4. Corroboration of Accomplice Testimony
Appellant argues that his conviction
should be reversed because the only evidence linking him to the controlled
substance offense was the testimony of M.G., an accomplice, and the state
failed to sufficiently corroborate such testimony.
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
Stat. § 634.04 (2000); see also State
v. Ford, 539 N.W.2d 214, 225 (Minn.
1995) (stating that “a criminal conviction may not be based upon the testimony
of an accomplice unless it is corroborated by other evidence that tends to
convict the defendant of the offense”).
This court reviews the sufficiency
of evidence corroborating accomplice testimony in the light most favorable to
the state, and all conflicts presented by the evidence are resolved in favor of
the verdict. State v. Pippitt, 645 N.W.2d 87, 93 (Minn.
2002); State v. Nelson,
632 N.W.2d 193, 202 (Minn.
2001). Corroboration of accomplice
testimony is sufficient if it restores confidence in the accomplice’s
testimony, confirming its truth and pointing to the defendant’s guilt in some
substantial degree. State v. Scruggs, 421 N.W.2d 707, 713 (Minn. 1988).
“The quantum of corroborative evidence needed necessarily depends on the
circumstances of each case.” State v. Adams,
295 N.W.2d 527, 533 (Minn.
Corroborating evidence may be found from
a defendant’s association with others involved in the crime “in such a way as
to suggest joint participation,” from the defendant’s motive and opportunity to
commit the crime, and from his proximity to the place where the crime was
committed. Id. Admissions and inadequacies in a defendant’s
testimony may corroborate an accomplice’s testimony. Scruggs,
421 N.W.2d at 714; State v. Wallert,
402 N.W.2d 570, 572 (Minn. App. 1987), review
denied (Minn. May 18, 1987).
Accomplice testimony need not be corroborated regarding each individual
element of the crime. State v. Lemire, 315 N.W.2d 606, 610 (Minn. 1982).
The district court concluded that
the state presented sufficient evidence to corroborate M.G.’s testimony by: (1) Officer Johnson’s observations of the sequence of
events; (2) the items found on appellant and in the van; (3) appellant’s
admission that he was a heavy user of methamphetamines; (4) the amount of
methamphetamine found on M.G.; and (5) appellant’s limited association with
M.G. We agree.
While following the van, Officer Johnson observed
suspicious behavior. The officer
testified that he saw appellant turn his entire body around and look towards
the back of the vehicle and immediately after appellant’s movements, M.G. began
to arch her back and move around in what the officer considered to be
consistent with an attempt to conceal contraband. This activity and sequence of events corroborated
M.G.’s testimony that appellant handed her the baggie and told her to “crotch
After a search, the officers found
$400 cash on appellant. Appellant
admitted to using methamphetamines and commented that he used at least eight
grams a day. This admission is also
significant because eight grams of methamphetamine was recovered from M.G.
To the extent that there was
contradictory testimony about the possibility that the methamphetamine belonged
to M.G. or the other passenger in the
car, we must assume on review that the jury believed the state’s
witnesses. See State v. Pippitt, 645 N.W.2d 87, 94 (Minn. 2002) (holding that a reviewing court
assumes that the “jury believed the state’s witnesses and disbelieved any
evidence to the contrary”).
The evidence overwhelmingly supports
appellant’s involvement and, when viewed in the light most favorable to the
verdict, is sufficient to corroborate M.G.’s accomplice testimony.
Appellant argues that the district
court denied his request for a downward departure based on its mistaken belief
that there must be compelling circumstances in addition to amenability to
probation and acceptance into a treatment program to justify a downward eparture
for drug offenses.
District courts apply presumptive
sentences “with a high degree of regularity.”
Sent. Guidelines cmt. II.D.03. But the
district court “may” depart from a presumptive sentence if it finds substantial
and compelling reasons to do so. Minn. Sent. Guidelines
II.D. While the district court “may”
depart, it exercises its broad discretion whether or not to depart, and
appellate courts will generally not interfere.
State v. Kindem, 313 N.W.2d 6,
1981). “It would be a rare case which
would warrant reversal of the refusal to depart.” Id.
“The threshold question is whether
the case involves compelling circumstances for departure.” State
v. Curtiss, 353 N.W.2d 262, 263 (Minn. App. 1984). In Curtiss, this court
reversed the trial court because it did not exercise its discretion to consider
the reasons for or against a departure. Id.
at 264. That is not the case here. During sentencing the district court stated
that “the record has to show a reason to depart. I saw nothing in the record why there should
be a departure.” While noting that the
presumptive sentence seemed unreasonable, the sentencing court discussed the
reasons for and against departure. Thus,
the court properly exercised its broad discretion in deciding not to depart.