This opinion will be unpublished and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 December 26, 2006
Hennepin County District Court
File No. 04072995
Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and
John M. Stuart, State Public Defender, Lydia Villalva Lijo, Assistant
Considered and decided by Worke, Presiding Judge; Klaphake, Judge, and Ross, Judge.
U N P U B L I S H E D O P I N I O N
On appeal from a conviction for first-degree assault, appellant argues that (1) the district court committed plain error in failing to give an instruction on the need for corroboration of accomplice testimony; (2) the district court had a duty to give the accomplice instruction because the only evidence that he was the occupant of the van came from potential accomplices; and (3) the non-accomplice testimony was insufficient to support the conviction. Appellant also raises several issues in his pro se supplemental brief that we conclude are meritless. We affirm.
D E C I S I O N
Accomplice Jury Instruction
Appellant Rodney Franklin argues
that the district court committed reversible error by failing to give the
accomplice-testimony instruction, even though he did not request the
“an appellate court will not consider an alleged error in jury instructions unless
the instructions have been objected to at trial.” State
v. Baird, 654 N.W.2d 105, 113 (
accomplice is one who could be indicted and convicted for the same crime as the
defendant. State v. Lee, 683 N.W.2d 309, 314 (
accomplice-testimony jury instruction must be given in a criminal trial when a
witness testifying against the defendant might reasonably be considered an
accomplice to the crime. State v. Shoop, 441 N.W.2d 475, 479 (
The evidence shows that appellant was seated in the front-passenger seat of a vehicle fleeing police, and that he fired a 9mm weapon out the window at a pursuing officer. Dena Harris testified that she was driving the van and that appellant was shooting out the window from the front-passenger seat. The pursuing officer testified and the squad-car videotape shows that the shots came from the passenger side of the van. Further, Michael McClom testified that appellant was seated in the front-passenger seat and fired one warning shot into the air before rapidly firing numerous rounds at the pursuing officer. This succession of gun shots is corroborated by the videotape. While appellant did not dispute any of this evidence, it is possible that Harris or McClom could potentially be liable as an accomplice, which would have been an issue for the jury; therefore, the district court erred in not giving the accomplice testimony jury instruction. Based on the evidence, however, the district court’s failure to give the accomplice-jury instruction did not have a substantial effect on the outcome of this case. The district court’s error in failing to give the accomplice-jury instruction is harmless, and, under Minn. R. Crim. P. 13.01, we disregard that error.
Appellant also argues that the only
evidence linking him to the crime is the testimony of McClom and Harris, and
that the non-accomplice testimony was not sufficient to sustain the
corroboration requirement addresses the questionable credibility of testimony
of an individual who may be inclined to shift the responsibility for criminal
conduct to another in order to benefit personally. State v. Azzone, 271
Pro Se Supplemental Brief Issues
First, appellant argues that his
constitutional right to equal protection was violated because “his petit jury
was selected from racially non-neutral selection procedures.” Appellant did not challenge the jury panel at
any time in district court. This court
will generally not consider matters not argued and considered in the court
below. Roby v. State, 547 N.W.2d 354, 357 (
Second, appellant argues that the
complaint failed to state the essential element of intent. Again, this issue was not raised in the
district court. “Ordinarily a
defendant is deemed to have forfeited an issue as to the adequacy of a
complaint unless the defendant either properly raised the issue in the [district]
court or can show good cause for not having done so.” State
v. Lehman, 295 N.W.2d 264, 265 (
Finally, appellant argues that the use of a firearm under Minn. Stat. § 609.11, subd. 5 (2004) (sentencing statute providing for mandatory minimum sentence if a firearm is used during the commission of a crime), should have been submitted to the jury as a separate offense. This court need not address this issue because appellant was sentenced solely on the first-degree assault conviction. The presumptive sentence for the first-degree assault conviction was 122 months in prison. The mandatory minimum sentence under Minn. Stat. § 609.11, subd. 5, is stated as not less than three years for a first firearm offense and not less than five years for subsequent offenses. The presumptive sentence for the first-degree assault conviction was substantially greater than the mandatory minimum under Minn. Stat. § 609.11, subd. 5.
Affirmed; motion granted.